FEDERAL COURT OF AUSTRALIA

Narrier v State of Western Australia (No 2) [2017] FCA 104

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 pm on 22 February 2017, the parties file a minute of any order or declaration they submit is necessary to give effect to the Court’s reasons on the application of s 47B(2) to the area of land identified as UCL 11 within the claim area.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    In my reasons for judgment on the application for a determination of native title in this proceeding (see Narrier v State of Western Australia [2016] FCA 1519) at [1280]-[1285], I raised an issue which I considered required further submissions from the parties. That issue concerned the application of s 47B of the Native Title Act 1993 (Cth) (NT Act) to a parcel of land identified in the proceeding as UCL 11 and informally identified as the Yakabindie Homestead block.

2    The State made submissions which I have taken to be made on its own behalf and not opposed by any other respondent affected by the determination of this issue. The applicant also made submissions.

3    For the reasons that follow, I accept the State’s submissions that s 47B is not engaged in relation to UCL 11, despite the findings I made in the principal reasons for judgment about occupation of parts of UCL 11 by two members of the claim group. I do not consider it is necessary in light of that conclusion for any directions or orders to be made. However, I will give the parties an opportunity to consider whether they have a different view, and to file a minute of any orders or directions they might submit are appropriate.

4    In my principal reasons for judgment, I found that Ms Shirley Wonyabong and Mr Creamy Allison both had houses on the Yakabindie Homestead block which they either had lived in (in Ms Wonyabong’s case) or continued to live in (in Mr Allison’s case).

5    It is necessary to set out the terms of some of the findings I made.

6    At [1275]-[1277] I found:

There is no doubt that Mr Allison, a claim group member, occupied part of UCL 11 at 17 June 2011 but whether also at 22 June 2015 is unclear. Ms Narrier’s evidence about him having to go to Geraldton and Meekatharra for “his eyes” was, as the State submits, somewhat hard to follow, and it was second-hand hearsay, coming from one Malcolm Shay whom Ms Narrier told the Court was currently living in the house. There is no evidence whether Mr Shay is a claim group member. Mr Muir also gave evidence about Mr Allison living in the house. On balance, I am prepared to find, in the applicant’s favour, that Mr Allison still “occupied” the house in June 2015, even if from time to time for medical reasons he was absent, perhaps for long periods.

There is no doubt Ms Wonyabong had occupied another part of UCL 11 for a significant period of time until the 1980s or 1990s, and it may be the case (the State did not dispute her evidence) that she could, theoretically, move back into her house there if it were habitable, on the basis that the lessee of the Yakabindie pastoral lease had no objection (although, if the land is Crown land, it is difficult to see what role, other than a practical one, there was for the opinion of the pastoral lessee). The difficulty is that the main Yakabindie homestead is very much occupied by those responsible for managing Yakabindie station. Their tenure was also not explained in the evidence. It was clear from the on country hearing that the station managers use all the sheds and other buildings in this UCL parcel. They do not appear to use Ms Wonyabong’s house, but it is agreed to be basically unusable. They clearly give Mr Allison his space and privacy. Mr Allison’s tenure was not explained in the evidence either.

Therefore, the evidence is that, over what is a fairly small parcel of land, being essentially the homestead block for Yakabindie station, there were two claim group members who considered they had, and whom others accepted had, possessory rights to part of that area. On the evidence neither asserted, or was recognised as having, possessory rights over the whole of the homestead block. The State submits this is the determinative factor. There have been long-term non-Aboriginal occupants of this area of land: on the agreed facts, Yakabindie was established by 1928 and I infer the homestead has been in existence for many decades.

7    Then, at [1283] I found, relevantly:

Two members of the native title claim group – separately, on different parts of the homestead block – have been coexisting. One has continued to do so (Mr Allison) and one (Ms Wonyabong) gave unchallenged evidence she had been recognised as entitled to continue to live there.

8    At [21] of its submissions on the application of s 47B to UCL 11, the State contended:

A conclusion that UCL 11 is “occupied” must be based upon evidence of physical presence or activities that amount to an assertion of being established over the area. An entitlement or theoretical ability to occupy a place or area is not the same as occupying it. It is not in dispute that Ms Wonyabong asserts that she is entitled to reside in the house at Yakabindie, or at least that she considers the pastoral lessee has no objection to her doing so. However the evidence is that she has not done so since a time in the 1980s or 1990s which predates the making of the Tjiwarl applications.

9    This submission comes too late. There was no challenge during the trial to the relevance of Ms Wonyabong’s evidence which I set out at [1276] of the principal reasons for judgment. My findings have accepted that evidence. The difficulty is that Ms Wonyabong’s continued assertion (as I have found it) of “being established” over that part of the homestead block where her house is situated is not an assertion that extends to the whole of UCL 11.

THE ISSUE FOR RESOLUTION

10    The sole issue for resolution is whether my findings that both Mr Allison and Ms Wonyabong occupied (within the meaning of s 47B(1)(c)) parts of the Yakabindie Homestead block on 17 June 2011 and 22 June 2015, when the Tjiwarl #1 and #2 applications were respectively lodged, can have the effect of engaging s 47B(2) in respect of the whole of UCL 11.

11    Part of the answer to this issue involves addressing what was said in Rubibi Community v Western Australia (No 7) [2006] FCA 459 by Merkel J at [98]:

The remaining issue is whether the requisite occupation has been established in respect of area 354. I accept, as did Sundberg J in Neowarra at [708], that a combination of activities in the area can amount to occupation by claim group members, notwithstanding that the area is also occupied by the corporation. The problem with the claim under s 47A in respect of area 354 is that the activity relied upon is residence in one of the two houses on the area by a Yawuru claim group member. As explained above, s 47A requires occupancy of the whole of the area, not merely part of the area. Accordingly, the requisite occupancy has not been established.

(Emphasis added.)

THE PARTIES’ CONTENTIONS

12    The parties approach this issue from different starting points. The applicant submits Rubibi (No 7) concerned s 47A and not s 47B and this distinction is important, because of the different language used in s 47A(1)(a) and (b) when compared to s 47B(1)(a) and (b). The former, the applicant submits, clearly contemplates equivalence between “an area” in para (a) and “the area” in para (b), because para (b) deals with the nature of the tenure existing in “the area”.

13    In contrast, the applicant submits, s 47B(1)(a) and (b) operate in a different way because (b) is a negative stipulation. It posits circumstances in which s 47B(2) will not apply and, in doing so, it can refer to the whole or any part of a UCL parcel. The applicant contends (at [9]) that:

Being a negative stipulation, s 47B(1)(b) can refer to the whole or any part of a UCL parcel, noting that a UCL parcel is simply an area defined by the cadastral boundaries of surrounding interests and given a number for the purposes of ease of identification … There is nothing in the language of s 47B that requires “the area” to correspond to the cadastral boundaries of some particular prior interest.

14    The applicant also places a particular interpretation on what was said by Sundberg J in Neowarra v Western Australia [2003] FCA 1402. The applicant submits (at [11]):

There is no indication, and no reason to conclude, that the phrase “the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished” first used by Sundberg J in Neowarra and adopted by Merkel J in Rubibi refers to the cadastral boundaries of a particular interest. Again, Sundberg J was simply distinguishing some particular area from the whole claim area.

(Emphasis added; footnote omitted.)

15    The respondent concentrates on the language of s 47B(1) itself. It submits that:

The “area” referred to in those latter sub-paragraphs is “the area” (or, in the case of (ii), a part of that area) identified at sub-paragraph (a) and not an area to be identified and defined at a later point in time once a finding of occupation has been made.

(Emphasis in original.)

16    It submits that this approach is consistent with the approach taken by Merkel J in Rubibi (No 7).

RESOLUTION

17    For ease of reference, s 47B should be set out again:

Vacant Crown land covered by claimant applications

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

(3)    If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)    the determination does not affect:

(i)    the validity of the creation of any prior interest in relation to the area; or

(ii)    any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b)    the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

Renewals and extensions of leases

(4)    For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

Defined expressions

(5)    For the purposes of this section:

(a)    the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

(b)    an area is subject to a resumption process at a particular time (the test time) if:

(i)    all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

(ii)    when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

(iii)    the Crown still had a bona fide intention of that kind in relation to the area at the test time.

18    The applicant’s submission about European cadastral boundaries not governing, or at least not constraining, the concept of “area” in s 47B is now squarely raised. I do not consider I can completely adhere to what I said in the principal reasons for judgment at [1217]-[1218], where I declined to express a view on this issue. I express at least a preliminary view that the applicant is correct to submit there is nothing in the text, or context, of s 47B to suggest that the use of the word “area” in s 47B(1)(a) is premised on areas only as defined by European cadastral boundaries.

19    Given the broader subject matter of Pt 2 of the NT Act (recognition, protection and extinguishment of native title), together with the express purposes of s 47B (see [1159] of the principal reasons for judgment), it is to be expected that this beneficial provision was intended to be capable of application to areas of land and waters defined not by European cadastral boundaries but rather defined by possessory entitlements of the requisite kind as asserted by one or more claim group members. This may well include possessory interests (or, to use the phrase from the authorities, ways of “being established in an area”) that are defined in accordance with traditional law and custom, or established usage (whether strictly traditional or not) and which have little or no correlation to European cadastral boundaries: see, to similar effect, the principal reasons for judgment at [1220]. The beneficial purpose of s 47B is advanced by a construction of that kind: see the observations of the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442, referred to at [1159] of my principal reasons for judgment. An example from the facts of the current proceeding, modified somewhat, might be an area of land and waters where claim group members camped on a regular basis, because the area had special significance in accordance with their laws and customs. In the claimant application invoking s 47B(2), it seems to me there would be no necessity for this area to be defined, as in delineated, only by using European cadastral boundaries. While such boundaries (for example, of UCL parcels) will be necessary to be able to precisely identify the area, and map it accurately, there is no reason in principle, it seems to me, why the “area” could not be one comprising only part of a UCL, or including part of one UCL and part of another.

20    However, this preliminary view does not assist the applicant in the answer to the present issue. That is because I accept the respondent’s submissions that the determining factor is how a given applicant has identified the “area” for the purposes of s 47B(1)(a) in making the claim that s 47B(2) is engaged. However an applicant chooses to identify “the area” to which they contend s 47B(2) applies, it is that area which first, must not be subject to any of the exclusions in s 47B(1)(b), and second, must be “occupied” within the meaning of s 47B(1)(c). In my opinion, this must mean the whole of the area identified; otherwise the words “or parts of the area” would have been included in s 47B(1)(c).

21    In other words, the “area” in s 47B(1)(a) is a reference to the area of land or waters to which the applicant contends s 47B(2) applies. As I have noted at [18] above, my preliminary view is that area may be land or waters delineated by cadastral boundaries, or it may not be. That is because the beneficial terms of s 47B turn on occupation (in the expanded sense of that word set out in the authorities) by Indigenous people at specified times, and that occupation may or may not align with European cadastral boundaries.

22    The use of the phrase “in relation to” in s 47B(1)(a) supports this construction. There must be the requisite connection between the land and waters included in the claimant application and the land and waters contended to be covered by s 47B(2) – the latter being included in the former. What is critical is that the land and waters contended to be covered by s 47B(2) is identified by an applicant. Once identified, that enables the exclusions in s 47B(1)(b) to be applied, and it also enables the assessment of evidence about occupation of the area as identified.

23    In the present case, the State is correct that the applicant identified the “area” in a way which covered all of UCL 11.

24    At [77] of the applicant’s statement of facts, issues and contentions in relation to extinguishment and “other interests” (filed on 11 September 2015), the applicant contended that s 47B:

requires any prior instances of extinguishment to be disregarded in the areas of Unallocated Crown Land (UCL) within the boundaries of the claim area. Particulars of those areas of land and waters to which section 47B applies are identified in Part 6 of the Schedule to this document.

25    In Pt 6 of the Schedule to that document, at [107]-[112], this was how the applicant described the relevant “area” they contended was covered by s 47B:

Tjiwarl

When the Tjiwarl native title claim application was made on 11 June 2011, the area of UCL 11 was partly covered by Mining Lease M36/660, Miscellaneous Licences L36/96 and L36/191 and Exploration Licence E36/717.

The Applicant accepts that by virtue of section 47B(1)(b)(i), section 47B of the Native Title Act 1993 has no application to the part of UCL 11 covered by the external boundaries of Mining Lease M36/660. The Applicant says that Miscellaneous Licences L36/96 and L36/191 and Exploration Licence E36/717 are not any of the interests or processes set out in section 47B(1)(b)(i) – (iii), such that section 47B requires that prior extinguishment in the area of UCL 11 be disregarded.

In the alternative, if it is found that Miscellaneous Licences L36/96 and L36/191 and Exploration Licence E36/717 are included in sections 47B(1)(b)(i) – (iii) (which is denied) the Applicant says that the remaining part of UCL 11 that is not covered by, or subject to, any of the interests or processes set out in section 447B(1)(b)(i) – (iii), is such that section 47B requires any prior extinguishment in that part be disregarded.

Tjiwarl #2

When the Tjiwarl #2 native title claim application was made on 22 June 2015, the area of UCL 11 was partly covered by Miscellaneous Licences L36/96 and L36/191.

The Applicant denies that sections 47B(1)(b)(i) – (iii) apply to Miscellaneous Licences L36/96 and L36/191 and says that section 47B applies to the area of UCL 11 to disregard prior extinguishment.

In the alternative, if it is found that Miscellaneous Licences L36/96 and L36/191 are included in sections 47B(1)(b)(i) – (iii) (which is denied) the Applicant says that the remaining part of UCL 11 that is not covered by, or subject to, any of the interests or processes set out in section 47B(1)(b)(i) – (iii), is such that section 47B requires any prior extinguishment in that part be disregarded.

26    It is clear that the “area” identified by the applicant for the purposes of engaging s 47B was the whole of the area of UCL 11. No smaller parts of the Yakabindie Homestead block were identified, in particular no smaller parts that were contended to be occupied by Ms Wonyabong and Mr Allison, in contrast to the whole of the block.

27    That this was how the applicant intended to make their claim under s 47B for the Yakabindie Homestead block is confirmed by [36] of the amended parties’ agreed statement of issues regarding extinguishment and “other interests”, filed on 9 November 2015. This is the way the issue about the Yakabindie Homestead Block is identified:

Part of UCL 11 (Yakabindie)

The Applicants contend that one or more members of the native title claim group occupied this area on 17 June 2011 and/or 22 June 2015.

28    It is the case, as I have set out in my principal reasons for judgment at [1221] by reference to the Full Court decision in Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 that the established interpretation of “occupy” in s 47B(1)(c) allows for a spectrum of conduct in relation to an area, and certainly does not require constant presence over every part of land and waters said to be covered by s 47B(2). The relevant passage from Moses at [216], which I also set out at [1221], is:

The word “occupy” is not defined in the NTA. It has a common meaning of being established in a place. In contemporary society, a person may occupy all of a house even though that person does not regularly enter every room and may never have entered a particular room or a particular part of a room; a pastoralist may occupy all of the area of a pastoral lease even though that person does not regularly visit every part of the area of the pastoral lease and may never have visited parts of it or have used parts of it for pastoral purposes: see eg per Lord Denning in Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1 at 4. In ss 47A and 47B, as the authorities point out, the context requires that the word “occupy” denotes some physical presence or activity by one or more members of the claim group from time to time, not necessarily continuously, and a presence or activity in the area so that as a matter of practicality that presence or activity involves the assertion of being established over the area itself. The occupation must be contemporaneous rather than historical. If the native title rights and interests over the area were exclusive, so there was a right to control access to the area, the exercise of the right to exclude strangers from the area would indicate its occupation. To occupy an area under the NTA, given its purposes and context, involves the exercise of possessory rights over the area, but the exercise of those rights does not require their continuous exercise, or their exercise at the precise time of the application because the occupation of which ss 47A and 47B speak is a state of affairs which must exist rather than the precise activity which illustrates the existence of the state of affairs.

29    So that, on different facts, even with a homestead block of the kind in issue, living from time to time in a house on the bock, as Ms Wonyabong did, and continuing through the relevant period to treat the home as her own and to assert possessory rights over it, or believe she had possessory rights to it, could well have been sufficient. Despite the flexibility of the meaning of “occupy”, the factual difficulty for the applicant here is that the largest proportion of UCL 11 was, at all relevant times, occupied by individuals who were not from the claim group, to the exclusion of Ms Wonyabong (and Mr Allison), and those other individuals treated the homestead block as their own, establishing and maintaining buildings on it, storing machinery on it, and using it in the usual way a working homestead block on a large station would be used. This was not otherwise unoccupied land where the flexibility of the meaning of “occupy” would have a role to play.

30    In the current factual circumstances, given the way the applicant has identified the “area” for the purposes of s 47B(1)(a) (as UCL 11), the applicant has to prove occupation (according to the meaning given in the authorities) by a member of the claim group on 17 June 2011 and/or 22 June 2015 of the whole of UCL 11.

31    Therefore, I accept the State’s submissions that the disposition of the issue about the Yakabindie homestead block turns on how the applicant identified the claim under s 47B in relation to this area. The applicant has not discharged its burden of proving a member of the claim group occupied the whole of UCL 11 at either or both of 17 June 2011 and 22 June 2015. At best, as I have found, they have proven that two different members of the claim group occupied small parts of UCL 11 at those times. This finding involves an application of the broad meaning of “occupy” found in the authorities. However, this “occupation” is insufficient to engage the beneficial effect of s 47B(2) to disregard extinguishment of native title rights and interests over UCL 11.

32    I consider this approach to be consistent with the approach taken by Merkel J in Rubibi (No 7). It is not inconsistent with Sundberg J’s observations in Neowarra either. As I have noted, I do not consider that an “area” in relation to a claimant application identified by an applicant for the purposes of engaging s 47B(2) need be identified solely by European cadastral boundaries. The key point is: however the area is identified by an applicant, the applicant will bear the onus of proving occupation (within the meaning given to that concept by the authorities) of the whole of the area identified.

Associate:

Dated:    15 February 2017