FEDERAL COURT OF AUSTRALIA

Roberts on behalf of the Widjabul Wia-Bal v Attorney-General of New South Wales [2019] FCA 1158

ORDERS

THE COURT ORDERS THAT:

1.    The separate questions be answered as follows:

(1)    On 24 June 2013, ID Area 572 was covered by a reservation made by the Crown under which the whole of the area was to be used for public purposes, within the meaning of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) (the NTA).

(2)    On 24 June 2013, ID Area 115 was covered by a reservation made by the Crown under which the whole of the area was to be used for public purposes, within the meaning of s 47B(1)(b)(ii) of the NTA.

(3)    On 24 June 2013, ID Area 74 was not covered by any reservation, proclamation, dedication, condition, permission or authority made or conferred by the Crown under which any part of the area was to be used for public purposes or for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

(4)    On 24 June 2013, ID Area 460 was covered by a permission conferred by the Crown under which the whole of the area was to be used for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

(5)    On 24 June 2013, ID Area 624 was covered by a permission conferred by the Crown under which the whole of the area was to be used for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 24 June 2013, the applicant filed a native title determination application on behalf of the Widjabul Wia-Bal People. The application claims that the Widjabul Wia-Bal People hold native title rights and interests over an area broadly to the east of Kyogle, Casino and Bagotville in northern New South Wales.

2    On 2 July 2018, the Court ordered the determination of separate questions in relation to five specified areas of Crown land within the claim area. I have since amended the separate questions. They ask, in effect, whether the application of s 47B of the Native Title Act 1993 (Cth) (the NTA) is excluded in relation to five specified areas.

3    Section 47B of the NTA creates an exception to the principle under s 237A that extinguishment of native title rights and interests is permanent and cannot revive even if the act that caused the extinguishment ceases to have effect. Where s 47B applies, any extinguishment of native title rights and interests in respect of the relevant vacant Crown land must be disregarded. However, s 47B(1)(b)(ii) excludes the application of s 47B where, relevantly, the area is covered by a proclamation, dedication, condition, permission or authority under which the whole or a part of the land is to be used for public purposes or for a particular purpose.

4    The first respondent, the Attorney-General of New South Wales, submits that s 47B(1)(b)(ii) of the NTA operates to exclude the application of s 47B in relation to the five specified areas of land. The applicant argues to the contrary.

5    I will proceed by setting out s 47B of the NTA and considering the construction of the provision, before turning to each of the separate questions.

Section 47B of the NTA

6    Section 47B(1) of the NTA describes the circumstances in which s 47B applies. It provides:

47B    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.

7    Section 47B(2) of the NTA sets out the consequences of s 47B applying:

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.

8    Section 47B(3) of the NTA describes the effect of s 47B upon the interests of the Crown, third parties and native title rights and interests:

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.

Construction of s 47B(1)(b)(ii) of the NTA

The structure of s 47B(1) of the NTA

9    In Banjima People v Western Australia (2015) 231 FCR 456, the Full Court described the structure and operation of s 47B of the NTA at [94]:

In considering how s 47B(1) operates, it is important to keep in mind that it defines the circumstances in which the preservatory effect of s 47B(2) will apply by prescribing two positive and one negative precondition, each of which must be satisfied. The positive preconditions are that, first, a claimant application, being defined in s 253 as, relevantly, a native title determination application, “is made in relation to an area” (para (a)) and, secondly, when that application is made, “one or more members of the native title claim group occupy the area” (para (c)). The negative precondition is that when the application is made “the area is not” any of the three particular categories specified in s 47B(1)(b).

10    The separate questions under consideration are not concerned with the positive preconditions in s 47B(1)(a) and (c) (although the parties have proceeded on the basis that (a) is satisfied). They are only concerned with the negative precondition in s 47B(1)(b), which requires the absence of each of three categories of interests or acts at the time when the application for a determination of native title is made.

11    It is accepted by the Attorney-General that the first category (that the area is covered by a freehold estate or a lease: s 47B(1)(b)(i)), and the third category (that the area is subject to a resumption process: s 47B(1)(b)(iii)) are not relevant in the circumstances of this case. The separate questions are concerned only with the second category, in s 47B(1)(b)(ii).

12    Within s 47B(1)(b)(ii), the Attorney-General does not contend that the relevant parcels of land are relevantly affected by the making, amendment or repeal of legislation. Further, the applicant does not dispute that the dealings in issue were reservations made or permissions conferred by the Crown.

13    Accordingly, the separate questions are directly concerned only with the part of s 47B(1)(b)(ii) that provides:

When the application is made, the area is not covered by a reservation or permission made or conferred by the Crown 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.

Approach to construction

14    In Griffiths v Northern Territory (2006) 165 FCR 300, Weinberg J explained the history of s 47B of the NTA at [691]:

Section 47 was contained in the original NT Act as enacted in 1993. Sections 47A and 47B, along with many other amendments, came into effect on 30 September 1998. Like s 47, these provisions require certain acts of extinguishment to be “disregarded”. These amendments were introduced, in part, as a response to Wik 187 CLR 1. That case revealed the anomalous situation that could occur if Aboriginal people have been living in a particular area for some time, but could not obtain a determination of native title because of some extinguishing event that may have occurred only briefly, and a long time ago. As a result, since the 1998 amendments, claims can be made to, and determinations of native title made in respect of, areas which were formerly the subject of a “previous exclusive possession act”. Such an act would ordinarily have extinguished native title, but for the operation of s 47, s 47A or s 47B.

15    The cases have consistently held that s 47B of the NTA is a beneficial provision and that the exclusions found in s 47B(1)(b) should not be construed more widely than is necessary to give effect to their purpose.

16    In Northern Territory of Australia v Alyawarr (2005) 145 FCR 442, the Full Court held at [187]:

The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes…A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force.

17    In Tjungarrayi v State of Western Australia (2019) 336 ALR 603; [2019] HCA 12, the High Court held at [34]–[35]:

The exclusions in s 47B(1)(b) from the statutory imperative to “disregard” the prior extinguishment of native title should not be construed more widely than is necessary to give effect to their terms. In this regard, s 47B(3)(a)(i) ensures that a successful native title determination, aided by the obligation to “disregard” the prior extinguishment of native title provided for by s 47B(2), will not adversely affect the validity of any prior interest granted by a government in relation to the area.

The evident purpose of s 47B is to facilitate the grant of native title under the NTA, notwithstanding historic extinguishment, where the land in question is actually occupied by the native title claimants and the claimed native title would not be inconsistent with extant rights of a holder of the fee simple or a lease…

(Citation omitted.)

18    In Tjungarrayi, the High Court overturned the judgment of the Full Court of the Federal Court in Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) (2018) 359 ALR 256; [2018] FCAFC 35 on the basis that it wrongly held that petroleum exploration permits were “leases” within s 47B(1)(b)(i). The High Court did not consider or disturb the Full Court’s reasoning upon other issues. The Full Court said at [36]:

…[T]he requirements of s 47B(1)(b)(ii) are best approached as a composite, the question being whether the reservation (etc) is one under which the whole or any part of the land in the claim area is to be used for a public purpose or a particular purpose.

19    While s 47B(1)(b)(ii) is best approached as a composite, the submissions advanced make it necessary to consider the constituent parts of the provision. However, it must be borne in mind that the constituent parts are substantially interconnected.

Reservation, proclamation, dedication, condition, permission or authority

20    In Alyawarr, the Full Court held at [185] that the operation of s 47B(1)(b)(ii) of the NTA falls to be considered at the time the application for a native title determination is made.

21    The Full Court also held at [185] that the collocation, “reservation, proclamation, dedication, condition, permission or authority”, is of wide import.

22    Section 47B(1)(b)(i) of the NTA operates where the area is covered by a freehold estate or a lease. The words in s 47B(1)(b)(ii), “reservation, proclamation, dedication, condition, permission or authority…or by the making, amendment or repeal of any legislation of the Commonwealth, a State or Territory” appear to be intended to capture every kind of dealing by the Crown with Crown land that is not the grant of a freehold estate or a lease.

23    Three of the separate questions concern reservations of land by the Crown. In Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54, Windeyer J explained the meaning of the word “reserve” at 69–70:

The word “reserve “in Australia has gained a special meaning from the history of colonial land settlement. It is not a common English use; but it is not peculiar to Australia. In other parts of the Empire also land policy has produced a similar vocabulary. In New Zealand the course of events in the early days of settlement was more or less a parallel of that to be related concerning New South Wales, and has given the word “ reserve “ the same meaning there.

The term “public reserve”—and the word “reserve” alone, when not controlled by a definition or a context indicative of a different sense - have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right.

(Citations omitted.)

“Public purposes” or “a particular purpose”

24    Section 47B(1)(b)(ii) of the NTA requires that the land is to be used for “public purposes” or for “a particular purpose”.

25    In Alyawarr, the Full Court considered “a particular purpose” at [187], saying:

A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose.

26    In Moses v State of Western Australia (2007) 160 FCR 148, the Full Court held at [179] that the concept of a “particular purpose” contemplates a purpose expressed with much greater specificity than “orderly development” of an area.

27    Some cases have held that certain purposes are “particular purposes” within the meaning of s 47B(1)(b)(ii) of the NTA. For example, in Tjungarrayi, the Full Court held at [31] that the purpose of exploring for petroleum is a particular purpose.

28    In Alyawarr, the Full Court considered “public purposes” at [187]:

The term ‘public purposes’ may arguably encompass  a land use planning purpose which is met by establishing a framework or condition for the allocation of private rights such as the grant of residential or commercial leases in a township.  Alternatively, it may be construed as referring to purposes of a public nature such as the creation of reserves for public works or recreation or environmental protection. A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force.  It is not necessary in aid of the narrower construction to define its outer limits here. It is sufficient to say that the mere proclamation of a town site, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii).

29    In Moses, the Full Court held that as the reservation under consideration was not limited to use for purposes of a public nature, and could encompass the allocation of land for private purposes, the reservation was not for use for “public purposes”.

30    In Banjima, the Full Court held at [111] that the purpose of “exploration” did not amount to “public purposes” because the licensee would not be the State, or one of its authorities, but a private person engaging in activities for his, her or its personal benefit.

31    In this case, the applicant submits that both “public purposes” and “a particular purpose” in s 47B(1)(b)(ii) require that the purpose must be stated in the reservation, etc. with specificity. The applicant relies upon Moses at [174]–[175] which considered s 276 of the Mining Act 1978 (WA), a broad power that allowed the Minister to reserve land even where, “the future use of the land is inchoate or even entirely unformed.” The Full Court held that the reservations of land from occupation for “orderly development” of an area were neither for public purposes nor any particular purpose. The applicant submits that a reserve for a purpose expressed as broadly as “public requirements” would be similarly inchoate and could not allow a conclusion that the land was to be used for public purposes.

32    The Attorney-General argues that s 47B(1)(b)(ii) envisages that there may be reservations, etc. for use for “public purposes” where no particular use is identified. The Attorney-General submits that a reservation of land for the enjoyment or benefit of the public, even if expressed at a high level of generality, would engage the sub-paragraph.

33    The expressions “public purposes” and “public requirements” have been used in State and Territory legislation to describe purposes for which the Crown may reserve land from sale or lease. Section 47B(1)(b)(ii) refers to “public purposes”. A description of land as reserved for “public requirements” would fall naturally within those words. As the applicant submits that some greater specification of the “public purposes” is required, it is necessary to consider whether there is any contextual reason for construing the phrase more narrowly than its natural meaning.

34    Section 47B(1)(b)(ii) draws a distinction between “public purposes” and “a particular purpose”. The distinction means that a particular purpose need not be a public purpose, and public purposes need not be particular purposes. It follows that “public purposes” may be general, rather than necessarily particular. That is reinforced by the use of the plural in the phrase, “for public purposes”, instead of the phrase “for a public purpose”, which would have suggested the necessity for a specific public purpose. While the beneficial approach discussed in Alyawarr and Tjungarrayi requires that s 47B(1)(b)(ii) should not be construed more widely than is necessary to give effect to its terms, that approach does not suggest that the provision should be read more narrowly than is indicated by its language and context. In my opinion, s 47B(1)(b)(ii) is not necessarily excluded where a reservation of land is expressed to be for “public requirements”.

35    Subject to the statutory context, a reservation of the land “for public requirements” suggests that the Crown has bound itself to keep the land for use only for public requirements, to the exclusion of use for private requirements. What has not been decided is the specific nature of the proposed public use. That position may be distinguished from Moses where the reservation left open the use of the land for private, as well as public, purposes. The position may also be distinguished from Alyawarr, where it was said that, “the mere proclamation of a town site…might comprise largely private property holdings”. In my opinion, if a reservation is expressed to be for “public requirements” the reservation is capable of being for use for “public purposes” within s 47B(1)(b)(ii), although much depends upon the statutory context, as will be seen.

36    However, there may be an inverse relationship between the generality with which the “public purposes” or “public requirements” are expressed and the likelihood of a finding that the land “is to be used” under s 47B(1)(b)(ii). If a public purpose is stated with specificity (for example, for use for a school or a State forest), that may suggest that the land “is to be used” for that purpose. Conversely, a reservation for broadly expressed and unspecified public purposes may suggest that the land does not fall within that description.

“Is to be used”

37    In Alyawarr, the Full Court considered the words “is to be used” in s 47B(1)(b)(ii) of the NTA. The Full Court held at [188]:

The words “is to be used” import the need to identify some intention to use the subject land for the requisite purpose or purposes.

38    The “intention” referred to by the Full Court in Alyawarr is the Crown’s intention. The Full Court was there concerned with the proclamation of a townsite and whether the Crown’s intention was to use the land for that purpose. The Full Court’s reference to the Crown’s intention to use land is also apt to refer to other circumstances where Crown land remains under the control of the Crown. For example, as Windeyer J observed in Rutledge at 74, where Crown land is reserved, the land remains under the control of the Crown.

39    However, s 47B(1)(b)(ii) also contemplates use of Crown land by persons or entities other than the Crown. For example, in Rutledge, Windeyer J explained at 76 that land “dedicated” passes out of the control of the Crown, usually into the hands of trustees. Further, the words “permission” and “authority”, are apt to refer to use of Crown land by private entities or individuals. In such cases, the natural extrapolation of the principle stated in Alyawarr at [88] is that the words “is to be used” import the need to identify some intention on the part of the Crown that the land be used for public purposes or for a particular purpose. The Crown must intend that the grantee of a dedication, permission or authority use the subject land for the requisite purpose or purposes.

40    In Alyawarr, the Full Court considered at [188] how and when the Crown’s intention is to be ascertained:

The question that arises is whether that intention is to be gleaned by reference to the terms of the proclamation and its constating legislation as an intention fixed for the duration of the proclamation or whether it is to be ascertained as a matter of fact at the time of the application for a native title determination…Nevertheless although the first interpretation can yield artificial results, it does provide an objective basis for determining the question of the imputed intention associated with the proclamation. The alternative approach would require factual inquiry into whether there has been, at the time of the application, an effective abandonment, attributable to the Crown, of any intention to implement the proposed purposes of the proclamation. The latter construction is not to be preferred.

41    In Moses v State of Western Australia, the Full Court said at [170]:

The relevant use, whether for public purposes or for a particular purpose, must emerge from the reservation itself…Consequently, although particular land may ultimately be used for a public purpose such as an airport site or a salt mine, such use cannot be regarded as occurring ‘under’ a reservation … unless that section or the reservation made pursuant to that section and in its legislative context provide the necessary purposive character to the reservation.

42    The applicant argues that a reservation, etc. that grants permission to use an area without positively requiring anything to be done is not one under which the area “is to be used” for public purposes or a particular purpose. The applicant submits that several cases since Alyawarr have held, in effect, that the phrase “is to be used” should be read as “is required to be used”. The Attorney-General was initially inclined to agree with that submission in relation to “a particular purpose”, but, if he had not resiled from that agreement by the end of the hearing, at least agreed less enthusiastically.

43    The applicant submits that the judgment of the Full Court in Banjima supports its argument. There, the State of Western Australia submitted that “is to be used” means “is permitted or authorised to be used”, and that certain exploration licences fell within s 47B(1)(b)(ii). The Full Court rejected that submission. The Full Court explained why the general purpose of “exploration” did not amount to either “public purposes” or “a particular purpose”. The Full Court then continued, using, as the present applicant emphasises, language such as “did not require” and “was not obligated”:

114    It follows that the Mining Act and the terms of the licences, including the conditions incorporated in them by that Act, did not require the lands and waters to which they applied to “be used for public purposes or for a particular purpose”. Rather, the licences amounted to a mere permission or authority to explore for minerals, including from the air. While the permission or authority in the licences extended to the whole of UCL areas 7 and 9 and part of UCL area 42, it did not identify any particular area or period of time, beyond the term of the licence, in which exploration had to occur. The licensee was not obligated to explore the whole of the licensed area. Thus, the whole licensed area was not to “be used” for any particular purpose under the licence, far less did the licences require the licensee to use that entire area for the purpose of exploration. Nor did the licences require any identified portion of the licensed area to “be used” for any particular purpose…

44    These passages must be read in context. The context is that the Full Court had rejected a submission that, as a matter of construction, a mere permission or authority to use the land was enough, and was proceeding to consider whether the factual circumstances of the case met the description “is to be used”. In doing so, the Full Court contrasted the licences allowing use of the land with an instrument requiring use of the land. I understand the Full Court to have reasoned that language of requirement or obligation in the licences might have confirmed that the area “is to be used” for a particular purpose, whereas a mere permission or authority to do certain acts was not, in the context, enough. However, I do not understand the Full Court to have held that the phrase should be construed as “is required to be used”.

45    The applicant relies upon Warrie (Formerly TJ) (on behalf of the Yindjibarindi People) v Western Australia [2017] FCA 803, where Rares J held at [196] that the exploration licences, “did not require that the whole or any part of the land and waters be used for a particular purpose” and did not “burden the land with a requirement that it be explored”. These passages were only a part of his Honour’s reasoning for concluding that the area was not “to be used” for a particular purpose. His Honour also took into account at [195] that the licences merely, “gave the licensee an option to come onto, and do limited exploration on, one or more parts of the land, if and when it chose to do so.” In my opinion, like the Full Court in Banjima, his Honour was merely illustrating that a “requirement” might have confirmed that the land was “to be used” for a particular purpose, and was contrasting the factual position in the case under consideration.

46    The applicant also relies upon the judgment of the Full Court in Tjungarrayi. The High Court did not address, and did not disturb, the Full Court’s rejection of the appellant’s argument that, to be a “mining lease” within s 245 of the NTA, an instrument must permit the holder to use the land to the exclusion of, or so as to limit, other concurrent uses. In the course of considering that issue, the Full Court distinguished Banjima on the basis of the factual and the statutory context. The Full Court at [21] contrasted the terms of the exploration permit in question, which imposed a requirement on the permit holder to carry out certain minimum works, with the terms of the exploration licences in Banjima.

47    In Tjungarrayi, the Full Court went on to consider the Commonwealth’s submission that the whole of the land the subject of the permits was to be used for a particular purpose so that, necessarily, all parts of the land were to be used for that purpose. The exploration permits applied to a large area of land extending beyond the claim area, requiring and authorising two exploration wells to be constructed within any part of the permit area. At [31], the Full Court said, “Provided the permits involve (as they do in this case), a requirement to use the land for that purpose, we do not see how it can be said that the requirement of land which “is to be used…for a particular purpose” remains unsatisfied”. The Full Court said at [37], “an authority to do some act involving a use of land is not the same as a requirement that land ‘is to be used’”. In these passages, the Full Court confirmed that a requirement to use the land is highly relevant to whether the land “is to be used” for a requisite purpose, but did not suggest that to satisfy s 47B(1)(b)(ii), the permit or authority must require the land to be so used.

48    The Full Court went on to conclude at [38]:

The permits in the present case also require some unidentified parts of the land the subject of the permits (which may or may not be in the claim area) to be used for the particular purpose of exploring for petroleum. Given the nature of the actual physical works to the land appear to be relatively confined (two exploration wells) and the land the subject of the permits authorised to be used is large, we are not satisfied that the permits may be characterised as ones under which the whole or any part of the claim area is to be used for the particular purpose of exploring for petroleum. They are permits under which some relatively confined part of the land the subject of the permits, which may or may not be in the claim area, is to be used for that purpose. Each case will turn on its own facts including the nature of the use, the purpose of the use, the extent of the land the subject of the permits, the extent of the claim area and the conditions or terms of the reservation (etc) and the legislation under which the reservation was granted. Beyond this, no more can be said.

49    The Full Court concluded that each case turns on its own facts. The Full Court considered that in the circumstances of the case, the requirement to use an unspecified part of the permit area, which may or may not be within the claim area, to construct two exploration wells was not enough to allow a conclusion that the whole or any part of the claim area was to be used for the purpose of exploring for petroleum. The Full Court cannot be understood as construing the phrase “is to be used” in s 47B(1)(b)(ii) as “is required to be used”.

50    In my opinion, there is no basis for construing “is to be used” in s 47B(1)(b)(ii) as “ is required to be used”. The provision refers, inter alia, to a “permission or authority” conferred by the Crown under which land in the area “is to be used” for public purposes or a particular purpose. A mere “permission or authority” would not require land to be used, so those words would be redundant if the applicant’s construction is correct. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, it was held at [71] that, “a court construing a statutory provision must strive to give meaning to every word of the provision.” The implication of the word “required” is not congruent with the words “permission or authority”. Further, that submission is inconsistent with Alyawarr.

51    In Alyawarr, the Full Court held at [188] that the words “is to be used” in s 47B(1)(b)(ii) import the need to identify an intention that the subject land be used for public purposes or a particular purpose. The intention is the Crown’s intention. In many statutory contexts, the Crown’s intention will be indicated by the intention of the relevant Minister. The intention must be demonstrated on an objective basis, by reference to the relevant legislation and the reservation, etc. (including the nature and purpose of the use, the extent of the land subject to the reservation, etc. the extent of the claim area and the conditions or terms of the instrument). If a reservation, etc. requires land to be used for public purposes or a particular purpose, that provides a powerful indication of the Crown’s intention, but such a requirement is not essential. On the other hand, a mere permit or authority to use land will not, without more, demonstrate the necessary intention. In between these positions, the statutory language or the reservation, etc. may provide an indication that the Crown’s intention is that the land is to be used for a requisite purpose. Each case will turn upon its own facts and statutory context.

“Area”

52    In Banjima, the Full Court discussed some of the complexities associated with the use of the word “area”. The Full Court concluded that:

98    In other words, the exclusion from the beneficial operation of s 47B(2) effected by each paragraph in s 47B(1)(b) should be given a narrow reading so that the exclusion will apply only in respect of each particular parcel of land or waters that falls within the express words. Thus, native title will be treated, for the purposes of s 47B, as having been extinguished only in respect of each freehold or leasehold estate, and each particular part of land or waters subject to an affectation referred to in s 47B(1)(b)(ii)...

99    Accordingly, the exclusion from the general application of s 47B effected by s 47B(1)(b) will apply only to an individual parcel of land or waters that meets one of the precise criteria in subparas (i), (ii) or (iii) that is the subject of a claimant application. And, in the case of a parcel that is affected only in part, as contemplated in s 47B(1)(b)(ii), the exclusion affects only the part meeting the criterion, so that the balance of the land or waters in the area or parcel not within the satisfied criterion, is still subject to the application of s 47B(2).

53    The Full Court said later:

110    It is unlikely that the Parliament intended that the requirement for use in s 47B(1)(b)(ii) could be satisfied if the use of only a small fraction of a very large parcel of land or waters under a permission or authority were sufficient to extinguish native title over the whole parcel. The consequence of such a broad construction would be the entire loss of the beneficial preservatory effect of s 47B(2) even if a trivial portion of a much larger area in a claimant application fell within s 47B(1)(b)(ii).

The first separate question

54    The first separate question is as follows:

1.    ID Area 572

The reservation from sale question

1.1    On the basis of the agreed facts set out below, and such other evidence as the parties adduce, on 24 June 2013, was:

(a)    the whole of ID Area 572; or

(b)    any part of ID Area 572, and if so which part

     covered by a reservation, proclamation, dedication, condition, permission or authority made or conferred by the Crown under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth)?

Agreed facts

1.2    The parties agree that:

(a)    the parcel referred to in these proceedings as ID Area 572 is recorded on the register under the Real Property Act 1900 (NSW) (the “Register”) as Lot 324 in Deposited Plan 755745 in the Parish of Tuckombil, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 572;

(c)    on 27 January 1900, by notice in the New South Wales Government Gazette (Issue No 76 (Supplement)), a copy of which appears at Annexure 1, the Governor of New South Wales declared under s 101 of the Crown Lands Act of 1884 (NSW) that Crown Lands described as Reserve No 30,518 shall be reserved from sale pending determination of the portion to set apart for public recreation (“the reserve for recreation”);

(d)    all of ID Area 572 is contained within the area of land identified under the heading “Eastern Division’’ and subheading “Land District of Lismore” and “No 30,518” in the instrument at Annexure 1;

(e)    on 24 June 2013, the applicant filed its native title determination application; and

(f)    as at 24 June 2013, nothing had been done to revoke or vary the instrument at Annexure I .

Other matters

1.3    The Court also notes that:

(a)    as at 24 June 2013, ID Area 572 was “Crown land” within the meaning of s 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that the instrument at Annexure I partially extinguished native title;

(c)    the applicant does not contend that the instrument at Annexure l was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 572 as at 24 June 2013.

55    The instrument described “Annexure 1” was a Gazette notice of 27 January 1900 in the following terms:

56    The Gazette notice reserved ID Area 572 from sale pending determination of the portion to be set apart for public recreation. The reservation was made under s 101 of the Crown Lands Act of 1884 (NSW) (the 1884 Act).

57    Section 101 appeared in Part V of the 1884 Act, which was entitled “Dedications – Reserves – Roads”. That section provided, relevantly:

The Governor may by notice in the Gazette declare what portions of Crown Lands shall be reserved and set apart as sites for cities towns or villages and may define the limits of the suburban lands to be attached thereto and to any existing city town or village and may in like manner declare what portions of Crown Lands shall be temporarily reserved from sale pending survey or determination by him of the portion to be set apart for any public purpose or for commonage or for population areas and all lands so declared shall be reserved accordingly until revoked or altered in like manner.

58    Section 104 of the 1884 Act provided, relevantly:

The Governor may by notice in the Gazette reserve or dedicate Crown Lands in such manner as may seem best for the public interest for any…public health or recreation convenience or enjoyment…or for any other public purposes. And upon any such notice being published in the Gazette such lands shall become and be reserved or dedicated accordingly and may at any time thereafter be granted for such purposes in fee simple…And subject to the provisions in the next following section all lands heretofore or hereafter permanently reserved for any of the purposes aforesaid shall be deemed to be set apart and dedicated accordingly and every conveyance alienation or disposition thereof except for the purpose for which such reservation shall have been made shall be absolutely void as well against Her Majesty as all persons whomsoever.

59    The Attorney-General submits that the phrase “pending survey or determination” in s 101 of the 1884 Act reflected a shortage of survey services up to and after Federation. In respect of ID Area 572, the Gazette notice specified the portions of land to be set apart. The Attorney-General submits that as the land to be set apart was able to be described by reference to measured portions, the phrase “pending determination” was adopted merely to correspond with language of the head of power, being s 104. Where no further survey work or description was required, the phrase was redundant. The Attorney-General submits that the necessary “determination of the part to be set aside” occurred as part of the act of reservation. The reservation itself set ID Area 572 aside, not only for the temporary purpose of making a further decision about their dedication, but for the ultimate purpose of “public recreation”.

60    The Attorney-General submits, in the alternative, that the power to reserve land “temporarily” in s 101 may have been envisaged as an interim step, to be followed in due course by a further decision. Despite the label “temporarily”, such a reservation operated indefinitely. The Attorney-General submits that any uncertainty as to whether an additional step was required to reserve the land for public recreation was resolved by s 10 of the Crown Lands Amendment Act 1927 (NSW) (the 1927 Amendment Act). One of the purposes of the 1927 Amendment Act was, “to validate certain notifications relating to reserves from sale”. Section 10 provided:

Any area of land which prior to the commencement of this Act has been declared by notification in the Gazette to be reserved from sale pending survey or determination of the portion to be set apart for the public purpose specified in the notification, shall, if the notification has not been revoked, be deemed to have been temporarily reserved from sale for such public purpose as from the date of such notification.

61    The Attorney-General submits that, as such, at the date of claim, ID Area 152 was subject to a reservation for the public purpose of public recreation, and falls within s 47B(1)(b)(ii).

62    The applicant submits that the exercise of the power under s 101 of the 1884 Act required the Governor to undertake a two-step process involving, firstly, the reservation of land from sale and, secondly, determining the portion to be set aside for the specified purpose. The applicant submits that without the second step being undertaken, all that was done was to reserve the land from sale. Such a reservation does not itself specify any purpose for which the land is to be used. A mere reservation from sale embraces a variety of potential uses and it is not possible to say whether the whole or part, and what part, was to be used for what purpose. Consistently with Alyawarr and Moses, it cannot be said that the whole or any part of ID Area 572 was to be used for public purposes.

63    The applicant submits that the purpose of s 10 of the 1927 Amendment Act was merely to, “validate certain notifications relating to reserves from sale”, and the provision had nothing to do with the prima facie effect of such notifications. The applicant also submits that the date at which the relevant intention to use ID Area 572 is determined is 27 January 1900 when the Gazette notice was published, and the 1927 Amendment Act cannot affect that intention.

64    Section 47B(1)(b)(ii) of the NTA focuses upon the effect of the reservation, etc. at the date of the native title determination application, in this case, 24 June 2013. The issue is whether, at that date, ID Area 572 was covered by a reservation made by the Crown under which the whole or part of the land was to be used for public purposes.

65    The land reserved on 27 January 1900 included ID Area 572. As the reservation was made under s 101 of the 1884 Act, it was a temporary reservation. That it was a temporary reservation was confirmed by s 10 of the 1927 Amendment Act. The temporary reservation was not revoked. A temporary reservation can be a “reservation” within s 47B(1)(b)(ii) of the NTA: Daniel v State of Western Australia [2003] FCA 666 at [968]; Moses at [149]. I find that at 24 June 2013, there was a “reservation” covering ID Area 572.

66    I find that the reservation for “public recreation” was for “public purposes” within s 47B(1)(b)(ii) of the NTA.

67    The remaining question is whether, under the reservation, the whole or part of ID Area 572 was “to be used for” public recreation.

68    ID Area 572 was, pursuant to as 101 of the 1884 Act, “reserved from sale pending determination of the portion to set apart for public recreation”. Section 10 of the 1927 Amendment Act provided that, “Any area of land which…has been…reserved from sale pending…determination of the portion to be set apart for the public purpose specified in the notification, shall…be deemed to have been temporarily reserved from sale for such public purpose...”. The intention of s 10 was to validate defective reservations (although the perceived defect is unclear). The terms of s 10 indicate that the method of validation was to change such reservations from being temporarily reserved from sale “pending determination of the portion to be set apart for public recreation”, to being temporarily reserved from sale “for the purpose of public recreation”.

69    The question is then whether the terms of the reservation as amended under s 10 of the 1927 Amendment Act demonstrate that the Crown intended to use that ID Area 572 for the purpose of public recreation. I do not accept the applicant’s submission that the issue must be considered only at the date the reservation was made on 27 January 1900. What must be determined is the Crown’s intention at the date of the native title determination application by reference to the relevant legislation and the reservation. It would be artificial to make that determination without considering intervening legislation, such as the 1927 Amendment Act, that amended the nature and effect of the reservation. I do not consider that the passage from Alyawarr at [188] (see [40] of these reasons) is inconsistent with this conclusion. In Alyawarr, the Full Court was concerned with a situation in which neither the terms of the proclamation, nor the legislation under which the proclamation was made had been amended. The position in relation to ID Area 572 is quite different.

70    The reservation under s 101 of the 1884 Act was made, “pending determination of the portion to be set apart for public recreation” (emphasis added). The terms of the reservation indicate that either the whole, or at least some portion, of the reserved land was to be used for public recreation. The terms also indicate that it was intended that a later determination would be made as to whether the whole, or only a portion, and what portion, was to be so used. However, the effect of s 10 of the 1927 Amending Act was that the entirety of ID Area 527 (“Any area of land… reserved from sale...”) was now reserved for public recreation.

71    As the reservation was from sale “for the purpose of public recreation”, the Crown indicated its intention to use the area for that purpose. In the context, the word “for” has its first meaning in the Macquarie Dictionary of, “with the object or purpose of”. While the words “the purpose of” in the reservation may have been strictly unnecessary, they emphasise that the Crown’s object was specifically to use the land for public recreation. The small area of land, being 10 acres, also tends to confirm that the Crown’s intention was specifically to use that particular parcel of land for the purpose it had designated.

72    As I have said, what is necessary under s 47B(1)(b)(ii) of the NTA is the Crown’s intention to use the land covered by the reservation for public purposes. It is not necessary that the land be required to be used for such purposes, or actually be used for such purposes. I find that at the date of the native title determination application, ID Area 572 was covered by a reservation made by the Crown under which the whole of the land was to be used for public purposes.

73    In case I am wrong in my view about the effect of s 10 of the 1927 Amendment Act, I will consider ID Area 527 upon an assumption that the provision made no material difference to the reservation of the land from sale, “pending determination of the portion to set apart for public recreation”.

74    I reject the Attorney-General’s submission that the determination of “the portion to be set aside” occurred as part of the act of reservation. The language in the Gazette notice was not a mere recitation of the head of power under s 101 of the 1884 Act. If a mere recitation of the head of power was intended, the phrase “pending survey or determination” would have been used. Instead, the reservation was purposely stated to be “pending determination”. I consider that a two-step process was envisaged in the circumstances. Under the first step, under s 101 of the 1884 Act, the land would be temporarily reserved from sale pending, relevantly, determination of the portion to be set apart for any public purpose. Under the second step, when that determination was made, there would be a permanent reservation or dedication made under s 104.

75    In my opinion, the language of s 101 of the 1884 Act and the reservation made demonstrates that the Crown’s intention was that at least some part of ID Area 572 would be used “for public recreation”. I therefore reject the applicant’s submission that the reservation was a mere reservation of the land from sale, rather than a reservation of the land from sale for public purposes. The position is therefore not comparable to Moses where there was a reservation from sale for “orderly development”, which could result in the land being used for private or public purposes. In this case, the reservation was expressly, and only, for public purposes.

76    The terms of the reservation under s 101 of the 1884 Act say nothing about which part of ID Area 572 was to be used, or whether the part to be used would be small or large. That raises for consideration whether the requirement of “use” in s 47B(1)(b)(ii) of the NTA is satisfied if only a small fraction of the relevant land may potentially be used: see Banjima at [110]; Tjungarrayi at [38]. However, ID Area 572 consists of only ten acres, in comparison to the thousands of square kilometres the subject of the exploration licences in Banjima and Tjungarrayi. Further, there is nothing to indicate that any part of ID Area 572 is outside the claim area, as was the case in Tjungarrayi. The whole of ID Area 572 was reserved and either the whole, or at least some part, was intended to be used for public recreation. Upon the assumption made, it would be appropriate to conclude that the whole or part of ID Area 572 falls within s 47B(1)(b)(ii).

77    However, in Banjima, the Full Court held at [99]:

And, in the case of a parcel that is affected only in part, as contemplated in s 47B(1)(b)(ii), the exclusion affects only the part meeting the criterion, so that the balance of the land or waters in the area or parcel not within the satisfied criterion, is still subject to the application of s 47B(2).

78    It cannot be determined from s 101 of the 1884 Act or the terms of the reservation what parts of ID Area 572 were or were not to be used for public purposes. That decision was never made.

79    If I were wrong about the effect of s 10 of the 1927 Amendment Act, I would conclude that ID Area 572 was covered by a reservation made by the Crown under which at least a part of the land was to be used for public purposes within s 47B(1)(b)(ii) of the NTA, but that it was not possible to determine which part would be so used. It would then be unclear as to whether s 47B(1)(b)(ii) would be satisfied in such circumstances. The onus of proof in respect of s 47B(1)(b)(ii) was briefly considered in Daniel at [148]. However, in the absence of submissions from the parties, I prefer not to address that issue.

The second separate question

80    The second separate question is as follows:

2.    ID Area 115

The reservation from sale and lease question

2.1    On the basis of the agreed facts set out below, and such other evidence as the parties adduce, on 24 June 2013, was:

(a)    the whole of ID Area 115; or

(b)    any part of ID Area 115, and if so which part

   covered by a reservation, proclamation, dedication, condition, permission or

   authority made or conferred by the Crown under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose within the meaning of s 47B(l)(b)(ii) of the Native Title Act 1993 (Cth)?

Agreed facts

2.2    The parties agree that:

(a)    the parcel referred to in these proceedings as ID Area 115 is recorded on the Register as Lot 13 7 in Deposited Plan 728167 in the Parish of Clunes, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 115;

(c)    on 20 August 1913, by notice in the New South Wales Government Gazette (Issue No 132), a copy of which appears at Annexure 2, the Governor of New South Wales declared in relation to portion 103, Parish of Clunes, County of Rous, that:

(i)    under s 101 of the Crown Lands Act 1884 (NSW), the portion shall be reserved from sale pending determination of the portions to be set aside for the public purpose of public recreation (Reserve 49 182); and

(ii)    under s 39 of the Crown Lands Act 1889 (NSW), the portion be reserved and exempted from lease generally (Reserve 49,183) (together, Reserves 49,182 and 49,183 are called “the reserve for public recreation”);

(d)    all of ID Area 115 is contained within the area of land identified under the heading “Eastern Division” and subheading “Land District of Lismore and Byron Shire” and “No. 49,182 from sale (49,183 from lease generally)” in the instrument at Annexure 2;

(e)    on 24 June 2013, the applicant filed its native title determination application; and

(f)    as at 24 June 2013, nothing had been done to revoke or vary the instrument at Annexure 2.

Other matters

2.3    The Court also notes that:

(a)    as at 24 June 2013, ID Area 115 was “Crown land” within the meaning of s 3 of the Crown Lands Act 1889 (NSW);

(b)    the first respondent contends that the instrument at Annexure 2 partially extinguished native title;

(c)    the applicant does not contend that the instrument at Annexure 2 was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 115 as at 24 June 2013.

81    At the date of the native title determination application, there were two reservations covering ID Area 115. The first, under s 101 of the 1884 Act, reserved the land, “from sale pending determination of the portions to be set aside for the public purpose of public recreation”. However, the effect of s 10 of the 1927 Amending Act was that the entirety of ID Area 115 became reserved, “for the purpose of public recreation”. There is no material difference with ID Area 572, which I have already considered. I reach the same conclusion, namely that at 24 June 2013, ID Area 115 was covered by a reservation made by the Crown under which the whole of the land was to be used for public purposes.

82    Under the second reservation, under s 39 the Crown Lands Act 1889 (the 1889 Act), ID Area 115 was, “reserved and exempted from lease generally”. I accept the Attorney-General’s submission that invoking s 39 in addition to s 101 of the 1884 Act, meant that the land was reserved from lease as well as sale. However, the land was already reserved for the purpose of public recreation, and the reservation under the 1889 Act did not add to or affect that purpose. The second reservation was not for public purposes or a particular purpose and did not fall within s 47B(1)(b)(ii).

83    However, as I have held, ID Area 115 does fall within s 47B(1)(b)(ii) by reason of the reservation under s 101 of the 1884 Act, as affected by s 10 of the 1927 Amendment Act.

The third separate question

84    The third separate question is as follows:

3.    ID Area 74

Reserve for future public requirements question

3.1    On the basis of the agreed facts set out below, and such other evidence as the parties adduce, on 24 June 2013, was:

(a)    the whole of ID Area 74; or

(b)    any part of ID Area 74, and if so which part

     covered by a reservation, proclamation, dedication, condition, permission or authority made or conferred by the Crown under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth)?

Agreed facts

3.2    The parties agree that:

(a)    the parcel referred to in these proceedings as ID Area 74 is recorded on the Register as Lot 165 in Deposited Plan 728505 in the Parish of Bungabbee, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 74;

(c)    on 16 September 1914, by a proclamation published in the New South Wales Government Gazette (Issue No 163), a copy of which appears at Annexure 3, under the Forestry Act 1909 (NSW), the Governor of New South Wales dedicated Crown Land described as “Bungabbee State Forest” No 171, Land District of Casino, Terania Shire, as a State Forest;

(d)    on 25 September 1970, by a proclamation published in the New South Wales Government Gazette (Issue No 124), a copy of which appears at Annexure 4, under s 19 of the Forestry Act 1916 (NSW) the Governor revoked the dedication of part of Bungabbee State Forest No 171;

(e)    on 31 March 2006, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 5, the Minister for Lands reserved, under s 87 of the Crown Lands Act 1989 (NSW), the Crown land described as Reserve No 1011448 for future public requirements (“the reserve for future public requirements of 31 March 2006”);

(f)    on 29 June 2007, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 6, the Minister for Lands revoked Reserve No 1011448 and, under s 87 of the Crown Lands Act 1989 (NSW), reserved the Crown lands described as all Crown Land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding within the Parish of Bungabbee, County of Rous as Reserve 755693 for future public requirements (“the reserve for future public requirements of 29 June 2007”);

(g)    all of the area referred to in these proceedings as ID Area 74 is contained within:

(i)    the area of land identified in the instrument at Annexure 5; and

(ii)    the area of land identified in the instrument at Annexure 6;

(h)    on 24 June 2013, the applicant filed its native title determination application, the external boundaries of which included ID Area 74;

(i)    as at 24 June 2013, nothing had been done to revoke or vary the instrument at Annexure 6.

Other matters

3.3    The Court also notes that:

(a)    as at 24 June 2013, ID Area 74 was “Crown land” within the meaning of s 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that:

(i)    all of the area referred to in these proceedings as ID Area 74 is contained within the areas of land subject to the dedication of Bungabbee State Forest No 171 (being the instrument at Annexure 3) and the revocation of the dedication of part of Bungabbee State Forest No 171 (being the instrument at Annexure 4); and

(ii)     the dedication of Bungabee State Forest No 171 partially extinguished native title;

(c)    the applicant does not contend that any of:

(i)    the dedication of Bungabee State Forest No 171 (being the instrument at Annexure 3);

(ii)    the creation of the reserve for future public requirements of 31 March 2006 (being the instrument at Annexure 5); or

(iii)    the creation of the reserve for future public requirements of 29 June 2007 (being the instrument at Annexure 6);

     was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in ID Area 74 as at 24 June 2013.

85    On 31 March 2006, the Minister for Lands reserved, “All Crown land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding”, as Reserve 1011448. The reserve was, “for the public purpose of future public requirements”.

86    On 29 June 2007, the Minister revoked Reserve 1011448. At the same time, the Minister reserved, “all the Crown land covered by Reserve 1011448” within named parishes, “for the public purpose of future public requirements”. The Minister, in effect, shifted all the Crown land previously covered by Reserve 1011448 into a series of new reserves consisting of the Crown land in each named parish. The evidence does not disclose how many new reserves were created, but as they were numbered consecutively from 750001 and as the last entry in evidence is 755920, there must have been at least 5,920 new reserves. The Gazette notice did not specify whether they were reserved from sale, lease or licence, but it may be presumed that it was from all three.

87    The new reserves included Reserve 755693. ID Area 74 was, or was part of, Reserve 755693 – it is not clear which. The reservation has not been revoked and covered ID Area 74 at the date of the native title determination application was filed.

88    The Gazette notice of 29 June 2007 records that the reservations were made pursuant to s 87 of the Crown Lands Act 1989 (the 1989 Act). The 1989 Act was in force until repealed upon the commencement of the Crown Land Management Act 2016 (NSW) on 1 July 2018.

89    Section 87 of the 1989 Act provided, relevantly:

Power of Minister to reserve land

(1)     The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose.

90    The issue required to be determined is whether Reserve 755693 was a reservation made by the Crown under which the whole or part of ID Area 74 was to be used for public purposes.

91    On 24 June 2013, ID Area 74 was covered by Reserve 755693. The applicant accepts that Reserve 755693 was a “reservation” within the meaning of s 47B(1)(b)(ii). However, the applicant disputes that, under the reservation, the whole or a part of ID Area 74 was to be used for public purposes.

92    Section 3 of the 1989 Act defined “public purpose” as, “any purpose for the time being declared by the Minister, by notification in the Gazette, to be a public purpose for the purposes of that provision”. Section 87(1), by use of the phrase “future public requirements or other public purpose” indicated that “future public requirements” are a “public purpose”. Further, the Gazette notice of 29 June 2007 declared “future public requirements” to be a public purpose for the purpose of s 87(1). The designation of “future public requirements” as a “public purpose” under the 1989 Act is not conclusive of whether the reservations are “for public purposes” within the meaning of s 47B(1)(b)(ii) of the NTA, but is informative.

93    The applicant submits that the reservation “for future public requirements” is not sufficiently specific for it to be a reservation for “public purposes” within s 47B(1)(b)(ii). I have held that the requisite “public purposes” may be expressed generally and that s 47B(1)(b)(ii) is capable of being engaged where a reservation is for “public requirements”.

94    However, the applicant submits that Reserve 755693 was not “to be used” for future public requirements within s 47B(1)(b)(ii). The applicant submits that the creation of Reserve 1011448 and, subsequently, Reserve 755693 merely reorganised and relabelled land as being reserved for future public requirements. The applicant argues that the reservation of large areas of land for a broadly expressed purpose in this way was not designed to determine uses of particular parcels of land. The applicant submits that the new reservations were merely “placeholders”, pending assessment under the 1989 Act about whether the reserved land would be used for any, and, what, purpose.

95    The Attorney-General submits that what is relevant under s 47B(1)(b)(ii) is the future use or uses to which the land is directed by the reservation, rather than the subjective purpose or policy behind the reservation. Section 47B(1)(b)(ii) refers to purpose only as part of its identification of how the land is to be used. The reservations took the land out of the scope of the general provision for the sale or lease of Crown land so as to secure their availability for future use for the benefit of the public. The Attorney-General submits that ID Area was “to be used” for future public requirements.

96    The words “is to be used” in s 47B(1)(b)(ii) require an intention on the part of the Crown to use the reserved land for public purposes or a particular purpose. That intention must be demonstrated on an objective basis, by reference to the relevant legislation and the reservation.

97    As I have said, there may be an inverse relationship between the generality with which the “public purposes” are expressed and the likelihood of a finding that the land “is to be used” under s 47B(1)(b)(ii). In this case, the reservation for “future public requirements” is as expressed as broadly as is possible.

98    It is convenient to begin by considering the scheme of the 1989 Act dealing with the reservation of Crown land. The relevant version of the 1989 Act was the version in force on 29 June 2007 when the reservation was made: see Alyawarr at [188]. Although some amendments were made up to 24 June 2013, they are not of significance for present purposes.

99    The objects of the 1989 Act included, under s 10: the proper assessment of Crown land; the reservation or dedication of Crown land for public purposes; and management and use of the reserved land. As will be seen, under the 1989 Act, the assessment of Crown lands was a central part of decision-making concerning their use.

100    Section 91 of the 1989 Act provided that, subject to three exceptions, Crown land could not be reserved unless it had been assessed under Part 3. Section 91 provided:

91     Requirement for assessment

(1)     Land shall not be reserved unless the Minister is satisfied that the land has been assessed under Part 3.

(2)     No assessment is required if:

(a)     the reservation is from sale or for future public requirements; or

(b)     the Minister is satisfied that it is in the public interest to reserve the land without assessing the land under Part 3 and, in reserving the land, has had due regard to the principles of Crown land management.

101    Similarly, s 85 of the 1989 Act usually required an assessment before Crown land could be dedicated.

102    Under s 121A, the Minister could authorise a reserve to be used for a purpose additional to the declared purpose of the reserve, provided, inter alia, it was in the public interest to do so.

103    Under Part 3 of the 1989 Act, the Minister was required to cause to be instituted a programme for the assessment of Crown land. Under s 30, the programme was to consist of: the preparation of an inventory of Crown land; an assessment of the capabilities of the land; and the identification of suitable uses for the land and, where practicable, the preferred use or uses.

104    These elements were explained in ss 31–33 of the 1989 Act:

31    Inventory

(1)     The inventory of Crown land shall contain particulars of such physical characteristics of the land and such other matters affecting the land as the Minister considers necessary to assess the capabilities of the land.

…

32     Assessment of the capabilities of land

(1)    The particulars relating to land as contained in the inventory shall be assessed by the Department to determine the land’s capabilities, having regard to prescribed land evaluation criteria.

(2)    For the purposes of this section, assessment of the capabilities of land includes assessment of the land’s use for community or public purposes, environmental protection, nature conservation, water conservation, forestry, recreation, tourism, grazing, agriculture, residential purposes, commerce, industry or mining.

33     Identification of uses

(1)     In identifying suitable uses for land and, where practicable, the preferred use or uses, regard shall be had to:

(a)    the particulars relating to the land as contained in the inventory,

(b)     the assessment of the land’s capabilities,

(c)     the principles of Crown land management and any current policies relating to the land approved by the Minister, and

(d)    the views of any government department, administrative office or public authority which has expressed an interest in the land

…

105    The “principles of Crown land management” referred to in s 33(1)(c) were defined in s 11 of the 1989 Act, as follows:

11    Principles of Crown land management

For the purposes of this Act, the principles of Crown land management are:

(a)    that environmental protection principles be observed in relation to the management and administration of Crown land,

(b)     that the natural resources of Crown land (including water, soil, flora, fauna and scenic quality) be conserved wherever possible,

 (c)     that public use and enjoyment of appropriate Crown land be encouraged,

 (d)     that, where appropriate, multiple use of Crown land be encouraged,

(e)     that, where appropriate, Crown land should be used and managed in such a way that both the land and its resources are sustained in perpetuity, and

(f)     that Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles.

106    Section 34 of the 1989 Act empowered the Minister to, inter alia, sell or lease Crown land. However, under s 34(6), that power did not authorise the sale of land reserved for a public purpose.

107    Under s 35, assessment was required before any of the Minister’s powers to sell, lease or grant other interests could be exercised, whether or not a reservation was in place, subject, relevantly, to the Minister’s power to act in the public interest. However, s 34A allowed the Minister to grant certain interests in Crown land reserved for a public purpose without an assessment:

(1)    Despite any other provision of this Act, the Minister may grant a lease, licence or permit in respect of, or an easement or right-of-way over, a Crown reserve for the purposes of any facility or infrastructure or for any other purpose the Minister thinks fit. Any such lease, licence, permit, easement or right-of-way is referred to in this section as a relevant interest.

108    A “Crown reserve” was defined in s 34A(7) to mean, “land that is or is part of a reserve within the meaning of Part 5…”. Under s 78, which was within Part 5, “reserve” meant land which is dedicated or reserved under the Act.

109    In summary, under the 1989 Act:

(1)    The Minister had power to reserve Crown land without assessment if the reservation was from sale, or for future public requirements, or if satisfied that it was in the public interest to do so.

(2)    The Minister had no power to reserve Crown land for a public purpose other than future public requirements, unless satisfied that the land had been assessed or that it was in the public interest to do so.

(3)    The Minister had power to grant “relevant” interests in Crown land that had been reserved for any purpose the Minister thought fit without being satisfied that the land had been assessed.

(4)    Where assessment of the land was required before Crown land could be reserved, ss 32 and 33 had to be complied with.

110    It is notable that no provision of the 1989 Act expressly required the Minister to take into account an assessment under Part 3 when making decisions concerning the reservation of Crown land. However, since s 91(1) prohibited the Minister from reserving land for a public purpose other than “future public requirements” unless satisfied that the land had been assessed, there was an implied requirement under s 87(1) upon the Minister to consider the assessment made.

111    In New South Wales Aboriginal Land Council v Minister for Lands [2013] NSWLEC 148; (2013) 108 LGERA 122, Pain J said:

104    …It follows from the structure of the CL Act that land might be set aside for future public requirements pending an assessment of the capabilities of the land and the identification of future suitable uses pursuant to s 91(2)(b) and s 33 of the CL Act. The effect of the reservation for future public requirements would be to protect the land while such assessment occurs.

…

106    A reserve for future public requirements does restrain the purpose for which leases or permissive occupancies may be granted pending the identification of the public purpose and is a specific public purpose. The setting aside of land for future public requirements may serve the public interest of preventing present uses of land which may be detrimental pending the identification of future uses (if any)...

112    The judgment of Pain J was reversed on appeal in New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (Nelson Bay Claim) (2014) 88 NSWLR 125, but the passages set out above were not disturbed, and are, in my respectful opinion, correct.

113    Under the 1989 Act, although the Minister had the power to reserve Crown land for “future public requirements” without an assessment under Part 3, generally the Minister could not make decisions about use of reserved land in the absence of an assessment. There were two exceptions. The first was that the Minister could make a decision in the public interest to reserve land for another purpose or dedicate land without an assessment. The second was that the Minister could grant “a relevant interest” under s 34A while the land was reserved for future public requirements. Otherwise, land reserved for “public requirements” could not be reserved for another public purpose or dedicated without assessment.

114    Under s 32(2) of the 1989 Act, assessing the capabilities of land required assessment of the land’s use for possible public purposes, including environmental protection, nature conservation, water conservation, recreation and community purposes. It also required assessment of the land’s use for a range of possible private uses, including forestry, tourism, grazing, agriculture, residential purposes, commerce, industry and mining. Section 33(1) required that regard be had to the assessment of the land’s capabilities in identifying suitable uses and preferred uses for land. There is no evidence as to whether an assessment under Part 3 was carried out in respect of Reserve 755693 and ID Area 74.

115    The Crown land covered by Reserve 1011448 was reserved for “future public requirements”. It should be inferred that when the reservation was made, the Minister’s intention was to protect the land pending an assessment of its capabilities and a decision as to how the land was to be used. The Minister’s intention could not have been to use the land for any public purpose, since the land could not (subject to the public interest) be reserved for another public purpose or dedicated without an assessment first being carried out. The assessment would be of the capabilities of the land for private as well as public uses. It should be inferred that the Minister envisaged that at some point in the future there might be a need to use the land for some, then unidentified, public purpose. If that point was reached, it would become necessary to reserve or dedicate the land for the public purpose identified.

116    The history of the reserve also leads to the conclusion that the Minister did not intend to use the land for future public requirements. In 2006, Reserve 1011448 was made covering what the Attorney-General accepts to be, “large areas of the State”. Having regard to the large scale of the reserve, it cannot be inferred that the Minister intended the entirety of the reserved area to actually be used for future public requirements. It follows that the Minister must have had no such intention in respect of at least part of the area reserved.

117    In 2007, the area covered by Reserve 1011448 was, in effect, divided into thousands of new, smaller reserves, including Reserve 755693. The purpose of every new reserve was “future public requirements”. Since the total area and the purpose did not change, the Minister could not have had a newly formed intention that every one of these reserves actually be used for public requirements. In the absence of any evidence to distinguish Reserve 755693 from the other reserves, it cannot be concluded that the Minister intended that particular reserve to be used for public requirements.

118    It should be inferred that the Minister reserved the land under Reserve 755693 to protect it pending a further decision as to how the land would be used. Before the Minister decided upon use of the land for any specific public purpose, the Minister was required to consider an assessment under Part 3 of the 1989 Act, including the recommended suitable uses and any preferred uses. Following an assessment, the Minister may have decided that the land was to be used for public purposes, or private purposes, or a combination of both. The power of the Minister under s 34A to grant leases, licences and permits in land reserved for “future public requirements” further demonstrates that private uses were quite possible. In my opinion, the requirement under s 47B(1)(b)(ii) that the land “is to be used for public purposes” is not satisfied in the present case, where the Minister’s intention was no more than that the land might be used for public purposes in the future, and the reservation left open a substantial prospect that the land would be used for private purposes. The position is analogous to Alyawarr at [187], where the reservation contemplated no more than a “variety of potential but unascertained uses” of the land.

119    I find that at the date of the native title determination application, the reservation covering ID Area 74 was not one under which the whole or any part of the land was to be used for public purposes. I find that ID Area 74 does not fall within s 47B(1)(b)(ii) of the NTA.

The fourth separate question

120    The fourth separate question is as follows:

4.    ID Area 460

Permissive Occupancy 7918 Lismore and reserve for future public requirements question

4.1    On the basis of the agreed facts set out below, and such other evidence as the parties adduce, on 24 June 2013, was:

(a)    the whole of ID Area 460; or

(b)    any part of ID Area 460, and if so which part

     covered by a reservation, proclamation, dedication, condition, permission or authority made or conferred by the Crown under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth)?

Agreed facts

4.2    The parties agree that:

(a)    the parcel referred to in these proceedings as ID Area 460 is recorded on the Register as Lot 7302 in Deposited Plan 1156949 in the Parish of South Gundurimba, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 460;

(c)    on 9 October 1979, under s 136K of the Crown lands Consolidation Act 1913 (NSW), the Minister for Lands granted permission to occupy Crown lands including ID Area 460, described as permissive occupancy 79/8 Lismore (“the ID Area 460 permissive occupancy”), a copy of which appears at Annexure 7;

(d)    on 29 June 2007, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 6, the Minister for Lands reserved, under s 87 of the Crown Lands Act 1989 (NSW), the Crown lands described as all Crown Land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding within the Parish of South Gundurimba, County of Rous as Reserve 755736 for future public requirements (“the reserve for future public requirements of 29 June 2007”);

(e)    on 18 July 2008, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 8, under s 88 of the Crown Lands Act 1989 (NSW), the Minister for Lands added all Crown land held under licence or permissive occupancy under the Crown Lands Acts that is not already within a reserve, including ID Area 460, to Reserve 755736, being one of the reserves for the public purpose of future public requirements of 29 June 2007 (“the reserve for future public requirements of 18 July 2008”);

(f)    all of the area referred to in these proceedings as ID Area 460 is contained within the area of land identified in the ID Area 460 permissive occupancy at Annexure 7;

(g)    on 24 June 2013, the applicant filed its native title determination application, the external boundaries of which included ID Area 460; and

(h)    as at 24 June 2013, nothing had been done to revoke or vary the instruments at Annexures 7 and 8.

Other matters

4.3    The Court also notes that:

(a)    as at 24 June 2013, ID Area 460 was “Crown land’’ within the meaning of s 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that:

(i)    on 28 April 1933, by notification in the New South Wales Government Gazette, under s 26A of the Pastures Protection Act 1912 (NSW), the Minister for Lands placed ID Area 460 under the control of Pastures Protection Board for the Pastures Protection District of Tweed-Lismore (“the Pastures Protection Board notification”); and

(ii)    the Pastures Protection Board notification partially extinguished native title in relation to ID Area 460;

(c)    the applicant does not contend that any of:

(i)    the Pastures Protection Board notification;

(ii)    the grant of the ID Area 460 permissive occupancy (being the instrument at Annexure 7);

(iii)    the creation of the reserve for future public requirements of 18 July 2008 (being the instrument at Annexure 8); or

(iv)    the addition of ID Area 460 to Reserve 755736 (being the instrument at Annexure 6);

     was invalid; and

(d)     the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 460 as at 24 June 2013.

121    Annexure 7 is an instrument dated 9 October 1979 granting a “permissive occupancy” to John Stanley Smith in respect of ID Area 460 for the purpose of “grazing”. One of the conditions of the permissive occupancy was a requirement to, “not overstock the land occupied”. The permissive occupancy was given the number PO 79/8.

122    Reserve 755736 was created as part of the tranche of reservations made on 29 June 2007, which effectively converted Reserve 1011448 into thousands of smaller reserves. On 18 July 2008, pursuant to s 88(1) of the 1989 Act, the Minister added, “all Crown land held under Licence or Permissive Occupancy under the Crown Lands Act that is not already within a reserve” to Reserve 755736. Accordingly, ID Area 460, which was subject to PO 79/8, was added to Reserve 755736 for “future public requirements”. When the application for a determination of native title was made on 24 June 2013, ID Area 460 was covered by both Reserve 755736 and PO 79/8.

123    For the reasons given in relation to ID Area 74 and Reserve 755693, the reservation covering ID Area 460 was not one under which the whole or any part of the land was to be used for public purposes or a particular purpose within s 47B(1)(b) of the NTA.

124    However, it remains necessary to consider the effect of PO 79/8. The permissive occupancy was granted under s 136K of the Crown Lands Consolidation Act 1913 (NSW), which provided, relevantly:

136K. (1) The Minister may grant permissions to occupy Crown lands, whether above or below or beyond high water mark, or whether reserved from lease or license or not, for such purposes and upon such terms and conditions as to him may seem fit.

…

(5)     A permission to occupy Crown lands or a permissive occupancy of Crown lands referred to in subsection three of this section or a permission to occupy Crown lands granted under subsection one of this section shall be terminable at will by the Minister.

125    Under PO 79/8, Mr Smith was granted permission to occupy ID Area 460 for the purpose of “grazing”. It permitted Mr Smith to keep grazing animals on the land in return for payment of an annual rent, subject to the specified conditions. In my opinion, the permissive occupancy was a “permission” (as well as an “authority”) within s 47B(1)(b)(ii). The permissive occupancy covered ID Area 460.

126    The Attorney–General does not contend that the purpose of PO 79/8 was a public purpose, but argues that it was a particular purpose. The purpose of “grazing” was, in my opinion, a “particular purpose” within s 47B(1)(b)(ii).

127    The applicant submits that the land was not “to be used” under PO 79/8 for grazing. The applicant submits that PO 79/8 did not require ID Area 460 to be used for grazing or any other purpose, but only gave the grantee permission to come onto the land and conduct grazing if and when he chose to do so. The applicant compares the permission to the authority considered in Banjima. The applicant also submits that it is relevant: that the grantee had no right to exclude anyone from the land; that the conditions merely restricted the activities that could be carried out on the land; that PO 79/8 did not preclude other uses of the land; the land could be reserved for specific public purposes which might interfere with the purpose of grazing; and that the permission was terminable at the will of the Minister.

128    I have rejected the applicant’s submission that the reservation, etc. must require the land be used for public purposes or a particular purpose in order for s 47(1)(b)(ii) to apply. The issue is whether the Crown intended that the land be used for a relevant purpose by the grantee of the permission.

129    It may be inferred that the grantee of PO 79/8 sought the grant of the permissive occupancy so that he could keep grazing animals on the land. By granting the permissive occupancy, the Minister authorised the grantee to occupy the whole of the land for that purpose. The land consisted of 4.15 hectares. It may be inferred that, apart from the payment of rent, the Minister saw potential benefits to the State from use of the land for grazing, including improvement of the land through fences and gates (Special Conditions (h), (p) and (q)), which would become the property of the State upon termination (Standard Condition 4) and, probably, weed control. The nature of the purpose, the small area of land and the benefits to the Crown indicate a mutual intention that the land would be used for grazing by the grantee.

130    The applicant’s submission relies upon a comparison of the terms of the permission in this case with the terms of the licences in Banjima. However, each case must turn upon its own particular facts. The grant by the Crown of a permission for grazing to an individual over a small area is not comparable to the grant of an exploration licence to a mining company over vast areas, where the Crown must be taken to know that the factors such as costs of exploration, commodity prices and the licensee’s choices as to business priorities and strategies may well mean that no physical exploration, or exploration over only a very small proportion of the area, will ever be carried out during the period of the licence.

131    The inference to be drawn is that the Minister intended that ID Area 460 be used by the grantee for the purpose for which the permissive occupancy was granted. Accordingly, the land was “to be used” for the particular purpose of grazing.

132    I find that at the date of the native title determination application, ID Area 460 was covered by a permission or authority granted by the Crown under which the whole of the land was to be used for a particular purpose. I find that ID Area 460 falls within s 47B(1)(b)(ii) of the NTA.

The fifth separate question

133    The fifth separate question is as follows:

5.    ID Area 624

Permissive Occupancy 1960121 Lismore and reserve for future public requirements question

5.1    On the basis of the agreed facts set out below, and such other evidence as the parties adduce, on 24 June 2013, was:

(a)    the whole of ID Area 624; or

(b)    any part of ID Area 624, and if so which part

     covered by a reservation, proclamation, dedication, condition, permission or authority made or conferred by the Crown under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth)?

Agreed facts

5.2    The parties agree that:

(a)    the parcel referred to in these proceedings as ID Area 624 is recorded on the Register as Lot 282 in Deposited Plan 728633 in the Parish of Tunstall, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 624;

(c)    on or about 30 November 1987, under s 136K of the Crown Lands Consolidation Act 1913 (NSW), the Minister for Lands granted permission to occupy Crown lands including ID Area 624, described as permissive occupancy 1960/21 Lismore (“the ID Area 624 permissive occupancy”), a copy of which appears at Annexure 9;

(d)    on 29 June 2007, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 6, the Minister for Lands reserved, under s 87 of the Crown Lands Act 1989 (NSW), the Crown lands described as all Crown Land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding within the Parish of Tunstall, County of Rous as Reserve 755747 for future public requirements (“the reserve for future public requirements of 29 June 2007”);

(e)    on 18 July 2008, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 8, under s 88 of the Crown Lands Act 1989 (NSW), the Minister for Lands added all Crown land held under licence or permissive occupancy under the Crown Lands Acts that is not already within a reserve, including ID Area 624, to Reserve 755747, being one of the reserves for the public purpose of future public requirements of 29 June 2007 (“the reserve for future public requirements of 18 July 2008”);

(f)    all of the area referred to in these proceedings as ID Area 624 is contained within the area of land identified in the ID Area 624 permissive occupancy at Annexure 9;

(g)    on 24 June 2013, the applicant filed its native title determination application, the external boundaries of which included ID Area 624; and

(h)    as at 24 June 2013, nothing had been done to revoke or vary the instruments at Annexures 8 and 9.

Other matters

5.3    The Court also notes that:

(a)    as at 24 June 2013, ID Area 624 was “Crown land” within the meaning of s 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that the ID Area 624 permissive occupancy partially extinguished native title in relation to ID Area 624.

(c)    the applicant does not contend that any of:

(i)    the grant of the ID Area 624 permissive occupancy (being the instrument at Annexure 9);

(ii)    the creation of the reserve for future public requirements of 18 July 2008 (being the instrument at Annexure 8); or

(iii)    the addition of ID Area 624 to Reserve 75574 7 (being the instrument in Annexure 6);

    was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in ID Area 624 as at 24 June 2013.

134    The position in respect of ID Area 624 is very similar to that in respect of ID Area 460. I propose to only discuss the differences.

135    On about 30 November 1987, the permissive occupancy, described as 1960/21, was granted to Derek Skingle and Judith Gooden, under s 136K of the Crown Lands Consolidation Act. The purpose was stated to be “grazing”. The area of land involved was 1.943 hectares. The conditions were similar to those for ID Area 460.

136    In my opinion, the differences between the permissive occupancies for ID area 624 and ID Area 460 are not material. For the same reasons, I infer that the Minister intended that ID Area 624 be used for the purpose for which the permissive occupancy was granted. Accordingly, the land was “to be used” for the particular purpose of grazing.

137    I find that at the date of the native title determination application, ID Area 624 was covered by a permission granted by the Crown under which the whole of the land was to be used for a particular purpose. I find that ID Area 624 falls within s 47B(1)(b)(ii) of the NTA.

Conclusion

138    The separate questions will be answered as follows:

(1)    On 24 June 2013, ID Area 572 was covered by a reservation made by the Crown under which the whole of the area was to be used for public purposes, within the meaning of s 47B(1)(b)(ii) of the NTA.

(2)    On 24 June 2013, ID Area 115 was covered by a reservation made by the Crown under which the whole of the area was to be used for public purposes, within the meaning of s 47B(1)(b)(ii) of the NTA.

(3)    On 24 June 2013, ID Area 74 was not covered by any reservation, proclamation, dedication, condition, permission or authority made by the Crown under which any part of the area was to be used for public purposes or for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

(4)    On 24 June 2013, ID Area 460 was covered by a permission conferred by the Crown under which the whole of the area was to be used for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

(5)    On 24 June 2013, ID Area 624 was covered by a permission conferred by the Crown under which the whole of the area was to be used for a particular purpose, within the meaning of s 47B(1)(b)(ii) of the NTA.

139    There will be no order as to costs.

Associate:    

Dated:    30 July 2019

SCHEDULE OF PARTIES