FEDERAL COURT OF AUSTRALIA

Bell on behalf of the Wakka Wakka People #3 v State of Queensland [2019] FCA 2005

ORDERS

THE COURT ORDERS THAT:

1.    The separate question be answered as follows:

Native title is extinguished over the part of Lot 44 comprising Easements A and B on Plan BO391 shown in annexure PH13 to the affidavit of Peter Hutchinson filed on 15 April 2019 by a previous exclusive possession act within the meaning of s 23B of the Native Title Act 1993 (Cth) (the NTA). Native title is not otherwise extinguished by any previous exclusive possession act within the meaning of s 23B of the NTA over any part of Lot 44 on BO391, Lot 35 on BO108 or Lot 36 on BO391.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding is an application for a determination of native title over an area encompassing the towns of Kingaroy and Murgon in the South Burnett region of Queensland.

2    Mirrimbeena Holdings Pty Ltd (Mirrimbeena) holds a permit to occupy a parcel of land within the claim area. Mirrimbeena contends that native title has been wholly or partly extinguished in respect of that parcel and two adjoining parcels as a consequence of “previous exclusive possession acts” within the Native Title Act 1993 (Cth) (the NTA). The native title applicant and the State of Queensland contend to the contrary.

3    On 12 February 2019, the Court ordered that the claim area be separated into two parts, Part A and Part B. Part B comprises the three parcels of land in dispute, namely Lots 36 and 44 on BO391 and Lot 35 on BO108.

4    The Court also ordered that the following separate question be decided:

Was native title wholly extinguished over the land and waters (or any part of the land and waters) now comprising [the Part B area] as a result of a previous exclusive possession act within the Native Title Act 1993 (Cth)?

5    At the hearing of the separate question, Mirrimbeena was represented by its directors, Mr and Mrs Dwyer, who are not lawyers. It is appropriate to record that they presented their case competently, succinctly and with considerable courtesy to the Court.

6    I will proceed by first considering whether there is a sufficient factual foundation to allow the separate question to be decided. I will then describe the issues, before considering Mirrimbeena’s submission that previous exclusive possession acts have extinguished native title over the whole or part of Part B.

Whether there is a sufficient factual foundation for the separate question

7    The separate question proceeds upon an assumption that native title exists or existed over the Part B area.

8    In order to determine a separate, or preliminary, question of mixed fact and law, it is necessary for there be to an adequate factual foundation which permits the Court to determine the controversy between the parties: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]–[54]. That factual foundation may be established by evidence or agreed facts: Bass at [56].

9    In this case, there is no controversy between the parties as to whether native title exists or existed. That is because, having been given the opportunity in the proceeding to challenge “connection”, no party elected to do so. Therefore, the separate question may be answered on the basis that native title either exits in Part B or existed prior to any extinguishment.

10    There are other matters of fact of mixed fact and law which I understand the applicant and the State to have conceded through the absence of submissions upon those matters. They have not submitted that the works relied on by Mirrimbeena are not “valid” within s 23B. They have not submitted that the works did not commence to be constructed or established on or before 23 December 1996.

The issues

11    Mirrimbeena contends that the following works were constructed or established by the State government, a local government or a statutory authority of the State within Part B:

(1)    a pipeline;

(2)    a cattle dip;

(3)    rest area facilities;

(4)    stock watering infrastructure;

(5)    a stock route.

12    The evidence concerning some of these works is vague and uncertain because of the time that has passed since they were constructed or established. It is relevant to observe that in Western Australia v Sebastian (2008) 173 FCR 1, the Full Court held at [258] that the party asserting extinguishment of native title has the evidentiary onus of proving the nature and content of the act said to extinguish native title.

13    Lot 35 on BO391 (“Lot 35”) is a reserve. It was gazetted on 7 April 1990 and has an area of just over 2 hectares. The purpose of the reserve is “local government”, and its sub-purpose is “stock control and health”. The trustee is the South Burnett Regional Council, the successor of the Wondai Shire Council.

14    Lot 36 on BO391 (“Lot 36”) was gazetted as a “Recreation (Rest Area)” reserve on 14 July 1962. It has an area of 0.2 hectares.

15    Lot 44 on BO391 (“Lot 44”) was gazetted as a “Reserve for Camping and Water” under the control of the Wondai Shire Council on 14 February 1953. It is currently subject to the permit to occupy granted to Mirrimbeena. It surrounds Lot 35 and adjoins Lot 36. It has an area of 91 hectares. The eastern boundary of Lot 44 is the Stuart River. Lot 44 is divided in two by the Chinchilla Wondai Road, which continues over the Stuart River Bridge.

Previous exclusive possession acts under the NTA

16    Division 2B of Part 2 of the NTA confirms the extinguishment of native title by various kinds of acts. It also allows States and Territories to legislate in respect of certain acts attributable to them to extinguish native title in the same way as is done for Commonwealth acts.

17    Section 23B of the NTA defines several categories of previous exclusive possession acts. One such category, under s 23B(7), is where an act is valid and, “consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996”.

18    The term “public work” is defined in s 253 of the NTA as follows:

public work means:

(a)    any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i)    a building, or other structure (including a memorial), that is a fixture; or

(ii)    a road, railway or bridge; or

(iia)    where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or

(iii)    a well, or bore, for obtaining water; or

(iv)    any major earthworks; or

(b)     a building that is constructed with the authority of the Crown, other than on a lease.

Note:    In addition, section 251D deals with land or waters relating to public works.

19    If an act falls within the category of previous exclusive possession acts consisting of public works and the act is attributable to the Commonwealth, s 23C(2) provides for two consequences:

(1)    The act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.

(2)    The extinguishment is taken to have happened when the construction or establishment of the public work began.

20    Section 251D of the NTA gives an extended definition of “land or waters on which a public work is constructed, established or situated” as follows:

251D Land or waters on which a public work is constructed, established or situated

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

21    The State has enacted legislation to confirm the extinguishment of native title by public works attributable to the State, local governments and statutory authorities of the State. Section 21 of the Native Title (Queensland) Act 1993 (Qld) provides:

Confirmation of extinguishment of native title by certain acts that are public works

(1)    This section applies to an act that is a previous exclusive possession act under section 23B(7) of the Commonwealth Native Title Act.

(2)    The act extinguishes native title in relation to the land or waters on which, on completion of its construction or establishment, the public work concerned was or is situated.

(3)    The extinguishment is taken to have happened when the construction or establishment of the public work started.

The evidence

Lot 35—Stock dip

22    An affidavit of Mr Peter Hutchinson, a senior public servant in the Queensland Department of Natural Resources, explains the databases and records kept by the Department. He has produced various maps and tenure information concerning Lots 35, 36 and 44.

23    A Queensland Government Gazette notice published on 6 March 1915 reserved an area of five acres covering Lot 35 for a stock dip. The stock dip that was established there was known as the Stuart River Stock Dip.

24    With the agreement of the applicant and the State, Mr Dwyer’s submissions as to factual matters were treated as evidence. He said that a stock dip on Lot 35 was constructed for or on behalf of the State and was operated by the State until 1988. He said that the State then entered an arrangement with the Wondai Shire Council to operate the dip as a “private dip”, but it was still owned by the State. The dip closed in 2002.

25    There is a statement from Alan Franklin, a retired grazier, in evidence. Mr Franklin’s father helped to build the stock dip in the 1920s. He refers to his father as being a “shareholder of the dip”. The dip was part of a tick eradication program. Mr Franklin states that cattle were driven along the Ten Chain Road and held at the dip for about five days where they were dipped and inspected by a stock inspector.

26    There is also a statement from Mr Leo Seiler, a retired grazier. Mr Seiler states:

My father said a co-op was formed in about 1920 to build the dip and yards. My father built the dip with the help of other land owners in the area. This was to enable stock to be dipped out of the tick area and moved to clean areas for sale or to other properties.

27    Mr Seiler recalls a fenced area of about two acres around the dip to hold cattle there at night. During the day cattle grazed in what is now Lot 44. Mr Dwyer states that about five acres was fenced around the dip. That seems consistent with the total area of Lot 35 being five acres.

28    There is in evidence an agreement (entitled “Agreement for the Use of a Private Dip”) between the Council of the Shire of Wondai and the State of Queensland dated 20 July 1989. The Council is described as the “Owner” and the “Dip” is defined as the “Wondai Shire Council Dip”. Under the agreement, the State agreed, for five years, to supply the Council with tickicides and be responsible for the maintenance of the Dip, while the Council was entitled to levy, collect and retain fees for the use of the dip.

29    Mr Vince Knopke wrote a letter to the Wondai Shire Council dated 29 January 2002 indicating that the Stuart River Dip Committee had decided to close the Dip and disband the Committee. Mr Knopke was chair of the Dip Committee. The minutes of the Dip Committee indicate that the funds held by the Committee would be paid to the Council, with a recommendation that they be used to build a toilet block at the Stuart River rest area (ie. Lot 36) or donated to a fire brigade.

30    A letter from the Council to a Mr Pat Hansen dated 10 August 2005 stated that the funds were being held in trust to assist with the cost of constructing a toilet block at the Stuart River rest area, but that the project was dependant upon the provision of funding by the Department of Main Roads.

31    The applicant and the State submit that the stock dip is not a “public work” as defined in the s 253 of NTA because it was not constructed or established by or on behalf of the Crown or a local government authority. They have not submitted that it otherwise falls outside that definition. It appears to come within the description of a “structure…that is a fixture” or “major earthworks”.

32    Lot 35 was permanently reserved by the State for a stock dip in 1915. There is evidence that the dipping of cattle at the Stuart River Stock Dip was supervised by stock inspectors as part of a tick eradication program aimed at preventing ticks from reaching “clean areas”. I infer that the State government had substantial involvement in the operation of the stock dip.

33    While Mr Dwyer asserts that the stock dip was established for or on behalf of the State, he has not stated the source of his knowledge. In contrast, the evidence of Mr Franklin and Mr Seiler suggests that the dip was constructed or established by a co-operative of landowners. I accept the evidence of Mr Franklin and Mr Seiler.

34    Even though the stock dip was constructed or established on Crown land reserved for that purpose, the evidence does not demonstrate that the stock dip was established “by” the Crown or a statutory authority of the Crown. It is necessary, however, to consider whether the stock dip was established “on behalf of” the Crown or a statutory authority.

35    In King v Northern Territory of Australia (2007) 162 FCR 89, Moore J held at [183]:

183    ...The expression “on behalf of” has no fixed legal meaning: see R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 at 386. It may be used when speaking of an agency relationship or the relationship of trustee and beneficiary but can be used in relation to quite ephemeral relationships. The expression’s meaning will be substantially determined by context. In my opinion, the expression “on behalf of” is, in context, intended to comprehend the construction or establishment of a public work where its construction or establishment is done by the Crown or an emanation of the Crown indirectly rather than directly. That is, the work is constructed by a person or body for the Crown or an emanation of the Crown.

36    The evidence does not demonstrate that the dip was constructed or established for the State or an emanation of the State.

37    By 1989, the Wondai Shire Council had become the “owner” of the stock dip. A committee of graziers apparently operated the dip on behalf of the Council. When the committee decided to close the dip, it returned the money it held to the Wondai Shire Council, which, I infer, came from the fees levied for the use of the dip as contemplated under the agreement between the Council and the State.

38    When Lot 35 was reserved for the purpose of a stock dip in 1915, Wondai Shire Council was not named as trustee. Lot 35 was gazetted as a reserve for “local government” and “stock control and health” in 1990, with the Wondai Shire Council as trustee. The Wondai Shire Council evidently acquired a proprietary interest in Lot 35 at some point before it entered the agreement with the State in 1989, but the full tenure history is not in evidence. In any event, it is apparent that the Wondai Shire Council became the trustee of Lot 35 before 23 December 1996.

39    The question becomes whether a work that was constructed or established by a private entity can be said be constructed or established “on behalf of” a local government authority which acquires the land before 23 December 1996, within s 23B and s 253 of the NTA.

40    The parties were unable to locate any authorities dealing with this issue. The ordinary meaning of the phrase “constructed or established by or on behalf of the Crown, a local government body or other statutory authority of the Crown” is against such a construction. As Moore J indicated in King at [183], the phrase requires that the construction or establishment of the work be done directly or indirectly “for” the Crown, a local government authority or an emanation of the Crown. A work that does not have this character when it is constructed or established does not acquire such a character when the land it is situated on is purchased or otherwise transferred to the Crown, a local government authority or a statutory authority of the Crown.

41    I find that the stock dip on Lot 35 does not fall within the definition of “public work” and is not a previous exclusive possession act.

Lot 36—rest area facilities, Stuart River Bridge

42    On 14 February 1953, an area (numbered R49), including the area now covered by Lot 44, was reserved for the purpose of camping and water.

43    On 20 February 1960, approval was given for the construction of a bridge over the Stuart River and the resumption of an area of about 13 acres from R 49. Construction of the bridge commenced on 4 April 1960.

44    There is in evidence a letter written to the Secretary of the Main Roads Department on 19 December 1961 advising that approval had been given to set aside part of R 49 for the purpose of developing it as a rest area for the travelling public. On 14 July 1962, the land now described as Lot 36 was gazetted as a “recreation (rest area) reserve”.

45    Mr Dwyer said that in the 1960s, a picnic table, chairs, a barbeque and a water tank were built on Lot 36. There are now in place modern tables and chairs.

46    The bridge over the Stuart River is adjacent to what is now Lot 36. The bridge is a public work, as it was constructed by or on behalf of the State before 23 December 1996. However, there is no evidence that use of Lot 36 was necessary for or incidental to the construction of the bridge, nor of any structures being constructed or established on Lot 36 in the course of construction of the bridge.

47    Lot 36 was gazetted as a rest area. It cannot be accepted that providing a rest area for the travelling public rendered the use of Lot 36 necessary for, or incidental to, operation of the bridge.

48    The evidence that chairs, a picnic table, a barbeque and a water tank were built on Lot 36 in the 1960s is very limited. The evidence does not allow an inference to be drawn that the items were constructed by or on behalf of the State or the Wondai Shire Council, nor that these were “fixtures” within the definition of “public work” in s 253(a)(i) of the NTA.

49    I do not accept that any “public works” were constructed or established upon Lot 36.

Lot 44 - Stock route, road, stock watering infrastructure, pipeline

Stock route

50    Mr Dwyer and Mr Franklin states that cattle would be driven down the “Ten Chain Road”. That is a reference to the Memerambi Gordonbrook Road, which is the western boundary of what is now Lot 44. Mr Dwyer states that to get to the Stuart River Stock Dip on what is now Lot 35, the cattle had to cross Lot 44. He says that cattle had to traverse Lot 44 as the Chinchilla Wondai Road was not gazetted until 1960.

51    Mirrimbeena submits that Lot 44 is a “stock route” and a “public work” within s 253 of the NTA. The expression “stock route” is not defined in the NTA. However, the State submits that it takes its meaning from State legislation.

52    Section 6A of the Rural Land Protection Act 1985 (Qld) defined “stock route” by reference to the Land Act 1994 (Qld) as follows:

a road or route ordinarily used for travelling stock or declared under an Act to be a stock route.

The current definition in the Stock Route Management Act 2002 (Qld) adopts the same definition but replaces the words “an Act” with “a regulation”.

53    The State accepts that a stock route may develop through customary use, or be declared under a regulation.

54    There are in evidence searches from the Queensland Globe website, a government website allowing access to Queensland maps, imagery and other spatial data. The searches reveal that the only recorded stock route near Lot 44 is the Memerambi Gordonbrook Road. There is no recorded stock route traversing Lot 44.

55    It may be accepted that since the 1920s, stock must have had to traverse what is now Lot 44 to access the Stuart River Stock Dip. However, even if it is accepted that there was a stock route established by custom over Lot 44, there are difficulties in making a finding that it was a “public work” within s 253 of the NTA.

56    Firstly, the evidence does not adequately demonstrate that any such stock route was established by or on behalf of the Crown, or a local government body or a statutory authority. I have accepted that the State was involved in the operation of the stock dip. However, that does not demonstrate that the stock route was established for or on behalf of the Crown. The stock dip, at some stage, came to be owned and operated by the Wondai Shire Council, but that does not demonstrate that any stock route was established by or on behalf of the Council.

57    Secondly, Mr Dwyer evidence that stock was driven along the Ten Chain Road and then traversed Lot 44 leads to the question of which part of Lot 44 formed any stock route. It is clear that Memerambi Gordonbrook Road (or Ten Chain Road) was, and remains, a stock route. The maps in evidence show that the Memerambi Gordonbrook Road intersects with what is now the Chinchilla Wondai Road. The Chinchilla Wondai Road leads to an area adjacent to Lot 35, where the Stuart River Stock Dip was located. The natural inference from the limited evidence available is that stock traversed Lot 44 along what became the Chinchilla Wondai Road. That is consistent with Mr Dwyer’s statement that cattle had to traverse Lot 44 as the Chinchilla Wondai Road was not gazetted until 1960. If there was a stock route established through custom over Lot 44, it was, on the balance of probabilities, part of the Chinchilla Wondai Road. That road is undoubtedly a public work, but does not form part of the Part B area since it is not itself a part of Lot 44.

58    I am not satisfied that any “public work” consisting of a stock route was established over Lot 44.

Stock watering infrastructure

59    Mirrimbeena submits that there was stock watering infrastructure constituting “public work” within Lot 44. The stock watering infrastructure appears to consist of a windmill and a water tank.

60    There is in evidence a plan prepared by the then Main Roads Department showing the area that became Lot 36. I infer that the plan was prepared before Lot 36 was gazetted as a reserve in 1962. It shows a windmill and a tank just outside Lot 36, but apparently within Lot 44.

61    Mr Dwyer states that Mirrimbeena bought the windmill in 2006. He states that it was sold by the Department of Natural Resources and Main Roads through the Wondai Shire Council. It was about 30 feet high, triangular in shape and was concreted into the ground. It was used to pump water from the river into troughs and into the dip.

62    The applicant and the State submit that it has not been established that the windmill and the tank were constructed or established by the State, a local government body or an authority of the State before 23 December 1996. The State submits that Lot 44 was gazetted as a reserve under the control of the Wondai Shire Council, so it is unlikely that it was constructed on behalf of the State. It also observes that the area had previously been part of the Burrandowan Station pastoral lease.

63    The Wondai Shire Council had control of the reserve encompassing Lot 44 when it was gazetted in 1953. It appears to have become trustee of the reserve at some later point in time. I accept that Mirrimbeena purchased the windmill from the Wondai Shire Council in 2006. It seems likely that the Council sold the windmill as trustee of the reserve, rather than behalf of the State.

64    There is no evidence as to when the windmill was constructed, or by whom it was constructed. It is possible that the windmill was constructed by the State, or by the co-operative of local land owners who established the dip with the consent of the State. The evidence does not allow a conclusion, on the balance of probabilities, that it was constructed or established by or on behalf of the Crown, a local government body or other statutory authority.

65    There is no evidence as to when the water tank was constructed, or by whom it was constructed. Again, the evidence does not allow a conclusion that it was constructed or established by or on behalf of the Crown, a local government body or other statutory authority.

66    I find that the windmill and the water tank were not constructed as “public works” and were not previous exclusive possession acts.

Pipeline

67    Mirrimbeena submits that a pipeline owned by Sunwater and associated easements have extinguished native title over the parts of Lot 44 that they traverse. The pipeline traverses Lot 44 in a north to south direction. It does not cross Lot 36 or Lot 35.

68    The Queensland Water Resources Commission provided a Plan of Access and Pipeline Easement over then Portion 49 (which I infer was R49) in late 1980. It indicated that there would be a pipeline and access easement some 20m wide, with a 4m formed gravel access track.

69    On 20 November 1981, the Wondai Shire Council wrote to the Queensland Water Resources Commission giving consent to the construction of the pipeline through R49.

70    On 26 October 2004, the State granted to Sunwater two easements for the pipeline. The native title applicant does not dispute that Sunwater is a statutory authority of the Crown.

71    The native title applicant does not dispute that the pipeline is a fixture. Although it is unclear exactly when construction began, the applicant accepts that the pipeline was constructed before 23 December 1996.

72    Since construction began before 23 December 1996 and was on behalf of an authority of the State, the pipeline is a “public work”. The easement was necessary for the construction, establishment and operation of the pipeline.

73    The construction and establishment of the pipeline and easement are “previous exclusive possession acts” within s 24B(7) of the NTA which extinguished native title in relation to the land on which they are situated. The easement is described as 20m wide with a 4m formed gravel access track. Native title is extinguished over Lot 44 to that extent. Native title is not otherwise extinguished by any previous exclusive possession act over Lot 44.

Other matters

74    The State has made submissions about two resumptions of land, namely the part of Burrandowan Station pastoral lease that was in the Part B area and for the Chinchilla Wondai Road. The State submits that the first resumption was not a previous exclusive possession act and the second is not within Part B.

75    However, there is no controversy about the two resumptions addressed by the State. No party contends that they are previous exclusive possession acts within Part B. As there is no controversy, the submissions made by the State concern questions that are hypothetical. Courts do not answer hypothetical questions: Bass at [47].

Conclusion

76    For the reasons I have given, the separate question should be answered as follows:

Native title is extinguished over the part of Lot 44 comprising Easements A and B on Plan BO391 shown in annexure PH13 to the affidavit of Peter Hutchinson filed on 15 April 2019 by a previous exclusive possession act within the meaning of s 23B of the Native Title Act 1993 (Cth) (the NTA). Native title is not otherwise extinguished by any previous exclusive possession act within the meaning of s 23B of the NTA over any part of Lot 44 on BO391, Lot 35 on BO108 or Lot 36 on BO391.

77    There will be no order as to costs.

Associate:    

Dated:    28 November 2019

SCHEDULE OF PARTIES