FEDERAL COURT OF AUSTRALIA

Nyamal Palyku Proceeding (No 2) [2020] FCA 788

ORDERS

1.    The answers to the four separate questions are as follows:

Question 1: Was the Reserve validly created?

Answer:    Yes

Question 2: If the answer to Question 1 is “yes”, was the Reserve validly vested?

Answer:    Yes

Question 3: Was the Special Lease validly granted pursuant to the provisions of the Land Act 1933?

Answer:    No

Question 4: If the answer to Question 3 is “yes”, did the grant of the Special Lease wholly extinguish any extant native title rights?

Answer:    It is not necessary to answer.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This matter relates to four separate questions under r 30.01 of the Federal Court Rules 2011 (Cth). Those questions have been stated with respect to the tenure status of two areas of land that are located in, or in the vicinity of, the town of Nullagine in the central Pilbara region of the north of Western Australia. One of those areas is current Reserve Number 2804 (the Reserve). The other is an historical tenure: Special Purpose Lease Number 3116/2485 (the Special Lease).

2    Both areas fall within the claim area of the Palyku native title determination application (the Palyku #1 claim). Because that claim is overlapped by the Nyamal native title determination application (the Nyamal #1 claim) at Nullagine, both areas also fall within the claim area of that claim. The overlap area is the subject of a separate question proceeding: the Nullagine overlap proceeding. The question whether native title does exist in the two areas and, if so, who holds it out of the Palyku and Nyamal claimants, awaits determination in that proceeding.

3    The ultimate issue in the four separate questions is quite narrow. It is whether any native title that existed in each area, whether held by the Palyku or Nyamal People, has been extinguished.

4    The Nyamal authorised applicant has adopted a neutral position with respect to this application, that is, it neither supports, nor opposes, it.

THE FOUR QUESTIONS

5    As between the authorised applicant of the Palyku People (the Palyku Applicant) and the State of Western Australia (the State), the four separate questions are as follows:

1.    Was the Reserve validly created?

2.    If the answer to Question 1 is “yes”, was the Reserve validly vested?

3.    Was the Special Lease validly granted pursuant to the provisions of the Land Act 1933 (WA) (repealed)?

4.    If the answer to Question 3 is “yes”, did the grant of the Special Lease wholly extinguish any extant native title rights and interests in the land and waters covered by the lease?

6    The parties have agreed that:

(a)    if the answer to Question 2 is “yes”, the vesting of the Reserve wholly extinguished any extant native title rights and interests in the land and waters covered by the Reserve as at 9 November 1973;

(b)    if the answer to Question 1 is “no”, native title has not been extinguished to any extent by virtue of the Reserve; and

(c)    if the answer to Question 2 is “no”, native title has not been wholly extinguished in respect of the Reserve.

7    In summary, the Palyku Applicant’s position on these four questions is as follows:

Question 1: Was the Reserve validly created?

… [T]he Reserve was not validly created because:

(a)    the purpose for the creation of the Reserve, being “commonage”, was not a valid purpose under the Land Regulations 1887 (WA) (Land Regulations);

Question 2: If the answer to Question 1 is “yes”, was the Reserve validly vested?

… [T]he Reserve was not validly vested because:

(a)    reserves can only be vested pursuant to s 33 of the Land Act 1933 (WA) (Land Act) if they were created pursuant to the Land Act whereas [the Reserve] was reserved under the Land Regulations; and

(b)    the purposes for vesting under the Land Act do not include vesting for the purpose of “Commonage”.

Question 3: Was the Special Lease validly granted pursuant to the provisions of the Land Act 1933?

… [The] Special Lease was not validly granted pursuant to s 116 of the Land Act because:

(a)    it was not for a purpose stipulated in s116 of the Land Act;

(b)    there are irregularities in the form of the application for and notice of the grant of the Special Lease that have the effect of invalidating the Special Lease;

(c)    registration does not cure any irregularities in the form of the application for and notice of the grant of the Special Lease; and further

(d)    the Minister for Native Welfare did not have power under the Native Welfare Act 1905 (WA) to acquire the land the subject of the Special Lease other than for the purpose of sale or lease “to a native”.

Question 4: If the answer to Question 3 is “yes”, did the grant of the Special Lease wholly extinguish any extant native title rights?

…

(a)    the Special Lease was granted for “the use of Natives”; and

(b)    such a purpose is not inconsistent with the continued existence of native title rights and interests; and

(c)    does not evince a clear and plain intention to extinguish native title.

Accordingly, if it was valid, the grant of the Special Lease did not extinguish any extant native title rights in the lands and waters the subject of the purported Special Lease.

(Footnotes and numbering omitted)

8    In response, the State’s position on the four questions above is as follows:

Question 1: Was the Reserve validly created?

… [T]he setting aside of [the Reserve] was valid and was inconsistent with, and extinguished, any exclusive native title rights and interests in the area covered by [the Reserve]. In particular, [it] says:

(a)    the purpose of [the Reserve] was a purpose for which a reserve could be set aside pursuant to the provisions of the Land Regulations 1887;

Question 2: If the answer to Question 1 is “yes”, was the Reserve validly vested?

… [T]he vesting of [the Reserve] pursuant to s 33 of the Land Act 1933 (WA) on 9 November 1973 was valid. In particular, [it]:

(a)    denies that only reserves set aside pursuant to the provisions of the Land Act 1933 (WA) could be vested under s 33 of that Act; and

(b)    says that, having been validly created for the purpose of “Commonage”, [the Reserve] could be validly vested for that purpose pursuant to s 33 of the Land Act 1933 (WA).

Question 3: Was the Special Lease validly granted pursuant to the provisions of the Land Act 1933?

(a)    [The Special Lease] was validly granted pursuant to s 116 of the Land Act 1933 (WA) and the Native Welfare Act 1905 (WA); and

(b)    to the extent that any irregularities in the application for, notice of, or lease document for [the Special Lease] exist, those irregularities do not have the effect of invalidating the grant of [the Special Lease].

Question 4: If the answer to Question 3 is “yes”, did the grant of the Special Lease wholly extinguish any extant native title rights?

… [T]he purpose of [the Special Lease] (being “use of Natives”) did not limit, diminish or otherwise amend the nature of the rights conferred by that lease. Those rights were identical to any other lease granted pursuant to section 116 of the Land Act 1933 (WA).

… [T]he test for extinguishment of native title at common law is one of an “inconsistency of incidents” between the relevant law or act and the native title rights being asserted, not whether a “clear and plain intention” to extinguish native title existed.

(Footnotes and numbering omitted)

THE RESERVE – FACTUAL BACKGROUND

9    According to the facts agreed between the parties, five relevant actions have been taken with respect to the Reserve. First, on 1 February 1895, a notice was published in the Western Australia Government Gazette (the Government Gazette) to the effect that the Governor in Executive Council (the Governor) had set aside an area of land, the boundaries of which were described in the notice, as the Reserve to be a public reserve for the purpose of “commonage”.

10    Next, on 23 April 1909, by Order in Council published in the Government Gazette, it was directed that the control and management of the Reserve should be placed in, and held by, the Nullagine Road Board pursuant to s 43 of the Land Act 1898 (WA).

11    Then, on 30 August 1918, notice was published in the Government Gazette that the Governor had approved by-laws for the Nullagine Road Board’s control and management of the Reserve pursuant to s 43 of the Land Act 1898.

12    Penultimately, on 30 June 1972, notice was published in the Government Gazette that the Governor had approved an amendment to the area of the Reserve to exclude the area surveyed and shown on Original Plan Number 12136 as part of the Nullagine Townsite and of its area being reduced accordingly pursuant to s 37 of the Land Act 1933.

13    Finally, on 9 November 1973, notice was published in the Government Gazette that the Governor had revoked the Order in Council referred to in [10] above. By Order in Council published in the same Government Gazette, it was directed that the Reserve should vest in, and be held by, the Shire of East Pilbara for the purpose of “common” pursuant to s 33 of the Land Act 1933.

THE RESERVE – QUESTION 1 – WAS IT VALIDLY CREATED?

Introduction

14    The first question posed in respect of the Reserve concerns whether it was validly created (see at [5(1)] above). To identify the issues raised, I will begin by summarising the contentions of the parties and then set out the legislative provisions relevant thereto.

The contentions

15    The Palyku Applicant contended that the Reserve was not validly created under the Land Regulations 1887 (WA) because the purpose for the creation of the Reserve, namely “commonage”, was not a valid purpose under those regulations as it did not fall under any of the purposes specified in reg 32. Specifically, it contended that there was a discrepancy between “commonage” as the purpose for the creation of the Reserve and the purpose described in reg 32(m): “resting places and commonage for travellers and stock”. The Palyku Applicant contended that the word “and” will generally be interpreted conjunctively as joining two items rather than as separate alternatives and thus “commonage” did not fall under reg 32(m) of the Land Regulations 1887. Additionally, it contended that there needed to be some greater specificity in order for the purpose of “commonage” to fall within the terms of reg 32(n): “any other purpose of public health, safety, utility, convenience, or enjoyment …”.

16    For completeness, I should record that initially the Palyku Applicant also submitted that the Reserve was not validly created as its description published in the Government Gazette was insufficiently precise to constitute a “full and complete” description, rendering it invalid. However, at the hearing, the Palyku Applicant did not press that submission.

17    The State submitted that a broad view should be taken of reg 32 and that one can only make sense of the various groupings within the subregulations of that regulation if the word “and” is treated as being disjunctive. Hence, it submitted, reg 32 sets out a list of different purposes in various groupings. Accordingly, it submitted that the purpose “commonage” fell within the terms of the grouping of purposes in reg 32(m). In the alternative, it submitted that reg 32(n) was sufficiently broad in its terms to include the purpose “commonage”.

The relevant legislative provisions

18    As can be seen from the contentions above, this question hinges on the provisions of reg 32 of the Land Regulations 1887 and, in particular, regs 32(m) and 32(n). Regulation 32 of those regulations provided:

THE Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, such lands, whether surveyed or not, as may be required for the following objects and purposes:

 (a.)    For the use or benefit of the aboriginal inhabitants.

(b.)    For the use and requirements of the Government of the Colony, or for purposes of military or naval defence.

(c.)    Railways, railway stations, roads, tramways, and canals or other internal communications, or for the approaches or other purposes necessarily appertaining to any such works.

 (d.)    Quays, landing places, ferries, and bridges.

(e.)    Sites for churches and chapels, with not exceeding one hundred acres of glebe land attached, and sites for parsonages.

(f.)    Sites for schools and other buildings for the purposes of education, and land for the endowment of schools and other educational institutions of a public character.

 (g.)    Reservoirs, aqueducts, or watercourses.

(h.)    Sites for town halls, mechanics’ institutes, telegraph stations, telegraph lines, post offices, abattoirs, public baths, schools of art, libraries, museums, public gardens, experimental farms, agricultural and horticultural societies, temperance institutions, cricket grounds, race-courses, hospitals, and institutions for charitable purposes, markets, court-houses, police stations and paddocks, prisons, or other edifices for public use or purposes.

 (i.)    Cemeteries.

(j.)    Places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants

 (k.)    For the endowment of municipal corporations within the Colony.

(l.)    For sinking shafts and digging for coal, iron, copper, lead, or other minerals and metals, or for quarrying rock, clay, earth, or other material for making roads, buildings, or other works.

(m.)    Resting places and commonage for travellers and stock.

(n.)    Any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.

Consideration

19    It is appropriate to begin by noting that the Proclamation of the Reserve in 1895 simply described it as “commonage” (see at [9] above).

20    Turning, then, to the text, context and purpose of reg 32 and, in particular, the subregulation at the centre of this question, namely reg 32(m). First, it can be seen that reg 32 comprised 14 subregulations which contained 14 different groupings of “objects and purposes” for which Crown land in Western Australia, whether surveyed or not, may be “except[ed] from sale” and either “reserve[d] to” the Crown or “dispose[d] of in such other manner as for the public interest may seem best”. The common theme to all of the “objects and purposes” in those 14 groupings was the advancement of the public interest. This appears from the text of those subregulations, a good example of which is the catch all provision in the final subregulation, reg 32(n): “Any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony”.

21    With that context in mind, it is convenient next to turn to the text of reg 32(m). It provided that “[r]esting places and commonage for travellers and stock” was an object and purpose for which Crown land may be excepted from sale and reserved, or disposed of. The words “resting places”, “travellers” and “stock” are common English words with well-known meanings. The word “commonage”, however, is more unusual. Its ordinary meaning is as follows:

Macquarie Dictionary (Seventh Edition, Macquarie Dictionary Publishers Pty Ltd, 2017)

1.    the use of anything in common, especially of a pasture.

2.    the right to such use.

3.    the state of being held in common.

4.    that which is so held, as land.

The Oxford English Dictionary (Second Edition, Clarendon Press, 1989)

1.       a.    The practice of commoning; right of common; usually ‘common of pasture’, or the right of pasturing animals on common land.

b.    The condition of land held in common, or subject to rights of common.

c.    … Estate or property held in common; common land, a common.

…

22    Then there are the words “and” and “for”. The contentions of the parties primarily focused on the former and whether it was to be read conjunctively or disjunctively in reg 32(m). On that aspect, there is, in my view, some superficial attraction in the State’s contentions that there is a disparity in many of the items linked by that word in many of the subregulations of reg 32. For example, tramways and canals in reg 32(c) and ferries and bridges in reg 32(d). That is also the case in reg 32(m) itself where there is a similar disjunction between what is conveyed by the words “travellers” and “stock”. This may tend to suggest that, in context, the word “and” throughout reg 32 was intended to be read disjunctively (see the discussion in Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454; [2004] WASCA 122 at [23]–[54] per Malcolm CJ). However, when all of the salient features of reg 32(m) outlined below are taken into account, it becomes apparent, in my view, that this proposition is not sustainable.

23    The first of these features concerns the word “for”. When it is used as a preposition, it ordinarily and relevantly means:

Macquarie Dictionary (Seventh Edition, Macquarie Dictionary Publishers Pty Ltd, 2017)

…

2.    intended to belong to, suit the purposes or needs of, or be used in connection with …

…

 8.    with regard or respect to …

…

10.    in favour of, or on the side of …

…

12.    in the interest of …

…

Shorter Oxford English Dictionary (Sixth edition, Oxford University Press, 2007)

…

4.    Representing, as a representative of.

5.    In place of, instead of; on behalf of.

…

7.    In defence or support of; on the side of; in favour of …

24    Then it is important to note how that word is used in reg 32(m). There, it links the subjects of its constituent phrase, namely the resting places and commonage, with its objects, namely the travellers and stock. Hence, it indicates that the resting places and commonage concerned are to serve the interests of, or to benefit, “travellers and stock”. Consequently, when the text of reg 32(m) is read as a whole and in context, the public object and purpose that it sought to advance was to provide places where travelling persons and stock may rest.

25    That then raises the question whether setting aside an area as simply “commonage” reserves that area for the particular object and purpose described above. In my view, it does not. That is so because the word “commonage” by itself or, in other words, read disjunctively, engages such a broad set of public rights of access to, and use of, an area that it fails to describe the quite specific public object and purpose to which reg 32(m) is directed, namely providing places where travellers and stock may rest.

26    The question then arises whether such a reservation falls within the terms of reg 32(n). As is already mentioned above, that subregulation contains a catch all of public objects and purposes. Moreover, it is expressed in the broadest of terms to include “any other purpose” (emphasis added) which advances “public health, safety, utility, convenience, or enjoyment”. That being so and given the broad public rights of use and enjoyment that are inherent in the concept of a commonage, I consider the reservation of an area of Crown land as simply “commonage” comfortably serves the utility, convenience or enjoyment of the public to which reg 32(n) is directed. For these reasons, I consider the Reserve was validly created as a “commonage” reserve under reg 32(n), but not under reg 32(m).

Disposition

27    It follows that Question 1 must be answered “yes”. That being so, since Question 2 is predicated on a positive answer to Question 1, it is necessary to consider that question next.

THE RESERVE – QUESTION 2 – WAS IT VALIDLY VESTED?

Introduction

28    The second question posed with respect to the Reserve concerns whether it was validly vested (see at [5(2)] above). As I did with respect to the first question above, I will begin by summarising the contentions of the parties and then set out the legislative provisions relevant thereto.

The contentions

29    On the footing that it would have extinguished any native title that existed in the land if it were validly vested, both parties focused upon the 1973 vesting of the Reserve in the Shire of East Pilbara under s 33 of the Land Act 1933 as in force at that time.

30    On this question, the Palyku Applicant’s primary contentions are sufficiently summarised above (see at [7]). Additionally, in response to the State’s reliance on the Interpretation Act 1918 (WA), it contended that s 15 only applies to the extent that it is consistent with the repealing Act, whereas s 33(6) of the Land Act 1933 states that the provisions “shall apply in respect of all land reserved pursuant to the provisions of this Act prior to or after the commencement of the Land Act Amendment Act, 1948”. It therefore contended that the express references in s 33 of the Land Act 1933 to land reserved under “this Act” indicated that previously reserved land did not fall within its terms. In support of this contention, it also pointed to s 16(1) of the Interpretation Act 1918 and the High Court decision in Ocean Road Motel Proprietary Limited v Pacific Acceptance Corporation Limited (1963) 109 CLR 276 (Ocean Road), where the High Court held that the insertion of a new provision into a principal Act which contained the words “this Act” speaks of the whole Act of which, from time to time, the amendment forms part and of the Act in the form which it may from time to time thereafter assume (at 280 per Taylor J). Finally, it contended that the Land Act 1933 could be described as having the effect of repealing and re-enacting the Land Act 1898, with a number of amendments. In this respect, it contended that, in the Commonwealth and a number of State jurisdictions, a reference in a statute to another Act that has been repealed and subsequently re-enacted is taken to include the re-enacted Act. However, it contended there is no analogous provision in Western Australia.

31    In its written submissions, the State traced through in some considerable detail the legislative history of the Land Acts and Regulations and the provisions of the Interpretation Acts that were in force from time to time in Western Australia from the late 1800s, including the Land Regulations 1887, the Land Act 1898, the Interpretation Act 1898 (WA), the Interpretation Act 1918, the Land Act 1933 and the Land Act Amendment Act 1948 (WA). I interpose to note that the judgment of the plurality in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward) contained a similar review, albeit focused primarily on pastoral leases (see Ward at [157]–[176]). Based on its historical review, the State contended that, from its creation on 1 February 1895 under the Land Regulations 1887, the Reserve continued in existence throughout all the repeals of the various Land Acts until its vesting in the Shire of East Pilbara in 1973 under s 33 of the Land Act 1933. Since that history is pivotal to the determination of this question, it is convenient to set out a brief summary of it hereunder, noting that what follows reflects the State’s view as to the effect of these various legislative changes:

(a)    the Land Regulations 1887 were repealed by s 2 of the Land Act 1898 on 28 October 1898;

(b)    the combined effect of ss 2, 3 and 4 of the Land Act 1898 and s 18(2) of the Interpretation Act 1898 was that actions done under the repealed Land Regulations 1887, including the creation of the Reserve, were not brought to an end, or otherwise affected by, the repeal of the Land Regulations 1887;

(c)    the Land Act 1898 was subsequently repealed by s 4(1) of the Land Act 1933 on 6 March 1934;

(d)    the combined effect of ss 3, 4(1) and 7(1) of the Land Act 1933 was that the existence of the Reserve was similarly not brought to an end, or otherwise affected by, the repeal of the Land Act 1898;

(e)    pursuant to s 15 of the Interpretation Act 1918, the Reserve is treated as if it had been made under the provisions of the Land Act 1933. That is so because the Reserve, being a “thing” in existence at the commencement of the Land Act 1933, “subsist[ed] and enure[ed]” for the purposes of the Land Act 1933 and “continue[d]” as if the Land Act 1933 “had been in force” when the Reserve originated, or was made, and as if the Reserve had “originated or been constituted, made, or done” under the Land Act 1933;

(f)    section 33 of the Land Act 1933 was repealed and substituted in 1949 pursuant to s 5 of the Land Act Amendment Act 1948. That substituted version of s 33 was in force at the time the Reserve was vested under s 33(2) in the Shire of East Pilbara on 9 November 1973.

32    The State also contended that s 33(6) of the Land Act 1933 acted to preserve any reservations made prior to the Land Act Amendment Act 1948 and in this sense operated consistently with s 15 of the Interpretation Act 1918 above. Finally, it contended that the Palyku Applicant’s construction would lead to “a chaotic, prejudicial and impractical outcome” with respect to all those reserves in Western Australia created before 1948.

The relevant legislative provisions

33    As can be seen from the contentions above, this question concerns numerous provisions of the Land Acts and Regulations and the Interpretation Acts in force from time to time since the late 1800s in Western Australia. As the review of Western Australia land law in Ward reveals, until 1890, when responsible government was introduced to the Colony of Western Australia with the passage of the Western Australia Constitution Act 1890 (Imp), the control of the waste lands of the Crown in Western Australia was vested in the English Imperial authorities (see Ward at [157] and [165]). The Land Regulations 1887 emanated from those authorities. Regulation 32 of those Regulations, which is at the centre of the present question, is already set out above (see at [18]). The Land Act 1898 and subsequent similar legislation were passed by the newly established Western Australian Legislative Assembly. By that Act and its successors, the Western Australian Legislature controlled how and under what conditions the Western Australian Executive could dispose of Crown land in Western Australia. I will return to this aspect of the relationship between the Legislature and the Executive in this process later in these reasons. The various pieces of legislation passed by the Western Australian Legislature affecting the determination of the present question are set out below in chronological order.

Land Act 1898 – ss 2, 3 and 4

Section 2

34    The Land Regulations 1887 were repealed by s 2 of the Land Act 1898 on 28 October 1898. Section 2 relevantly provided:

THE several Acts and Regulations specified in the Schedule hereunder, to the extent to which the same are thereby expressed to be repealed, are hereby repealed, viz.:––

but such repeal shall not affect––

Any right, interest, or liability already created, existing, or incurred, nor anything lawfully done or suffered under any enactment or regulation hereby repealed; or

…

Section 3

35    Section 3 of the Land Act 1898 relevantly defined “Crown Lands” as:

… the waste lands of the Crown within the Colony, that is to say, lands vested in Her Majesty, and not for the time being reserved for or dedicated to any public purpose … or granted or lawfully contracted to be granted in fee simple or with a right of purchase under this Act or any Act or Regulations hereby repealed ...

(Emphasis added)

Section 4

36    Section 4 of the Land Act 1898 provided that the Governor was authorised “to dispose of the Crown lands within the Colony, in the manner and upon the conditions prescribed by this Act or by any Regulations made thereunder …”.

Interpretation Act 1898

37    Section 18(2) of the Interpretation Act 1898 provided that where any Act repealed any other enactment, then, unless the contrary intention appeared, the repeal did not:

…

(b.)    Affect the previous operation of any enactment so repealed, or anything duly done or suffered under any enactment so repealed; or

(c.)    Affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed; or

…

Land Act 1933 – ss 3, 4(1), 7(1) and 33

Section 3

38    Section 3 of the Land Act 1933 relevantly defined “Crown Lands” as:

… all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose, or granted or lawfully contracted to be granted in fee simple or with the right of purchase under this Act or any Act hereby repealed ...

Section 4(1)

39    Section 4(1) of the Land Act 1933 as enacted relevantly provided that:

The Acts mentioned in the First Schedule [which included the Land Act 1898] are, subject to section sixteen of the Interpretation Act, 1918, hereby repealed:

Provided that such repeal shall not affect any right, title, interest, or liability already created, existing, or incurred, or anything lawfully done or suffered under any Act hereby repealed, or the regulations thereunder.

Section 7(1)

40    Section 7(1) of the Land Act 1933 provided that the Governor was authorised “to dispose of the Crown lands within the State, in the manner and upon the conditions prescribed by this Act or by regulations made thereunder”.

Section 33

41    As enacted, s 33 of the Land Act 1933 provided that:

The Governor may by Order in Council published in the Gazette—

(a)    direct that any reserve shall vest in and be held by any municipality, road board, body corporate, or persons to be named in the order, in trust for the like or other public purposes, to be specified in such order; or

(b)    may lease the reserve in the form in the Fourth Schedule, or grant the fee simple, to secure the use thereof for the purpose for which such reserve was made.

In either case a power to sublet the reserve or any portion thereof may be conferred.

Interpretation Act 1918

42    Sections 15 and 16 of the Interpretation Act 1918, to which both parties variously referred, relevantly provided:

15.    Where an Act repeals and re-enacts with or without modification any provision of a former Act, then––

(a)    all districts or other local divisions or areas; and

(b)    all councils, corporations, boards, trusts, or other bodies constituted, and all elections and appointments of members thereof made; and

(c)    all offices constituted and appointments of officers made; and

(d)    all proclamations, orders, by-laws, rules, regulations, warrants, certificates, and documents made; and

(e)    all other acts, matters, and things whatsoever,

which, at the commencement of the repealing Act, are respectively in existence, or in force or operation, under or for the purposes of such provision, shall, in so far as is not inconsistent with the repealing Act, subsist and enure for the purposes of such Act, and shall continue as if the repealing Act had been in force when they respectively originated or were constituted, made, or done, and they had originated or been constituted, made, or done thereunder.

16.    (1)    Where any Act repeals or has repealed a former Act or any provision or words thereof, or where any Act or enactment expires or has expired, then, unless the contrary intention appears, such repeal or expiry shall not—

(a)    revive anything not in force or existing at the time at which such repeal or expiry takes effect; or

(b)    affect the operation of the repealed or expired Act or enactment, or alter the effect of the doing, suffering, or omission of anything prior to such repeal or expiry; or

(c)    affect any right, interest, title, power, or privilege created, acquired, accrued, established, or exercisable, or any status or capacity existing, prior to such repeal or expiry; or

(d)    affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to such repeal or expiry; or

(e)    subject to section eleven of the Criminal Code, affect any penalty, forfeiture, or punishment incurred or imposed or liable to be incurred or imposed, prior to such repeal or expiry; or

(f)    affect any investigation, legal proceeding, or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture, or punishment as aforesaid.

…

Land Act Amendment Act 1948

43    Section 5 of the Land Act Amendment Act 1948 provided that s 33 of the Land Act 1933 was “repealed and the following section substituted”:

(1)    (a)    In this section, unless the context otherwise requires—

“land” means land reserved pursuant to the provisions of this Act;

“Order” means Order in Council;

“person” means any municipality, constituted pursuant to the provisions of the Municipal Corporation Act, 1906-1947, and road board, constituted pursuant to the provisions of the Road Districts Act, 1919-1948, any other body corporate or any other persons;

“purpose” means the purpose for which the land is reserved pursuant to the provisions of this Act.

(b)    Every Order made in pursuance of the provisions of this section shall—

(i)    be published in the Gazette so soon after being made as is practicable;

(ii)    commence to take effect upon publication in the Gazette;

(iii)    describe the land affected by the Order;

(iv)    specify the purpose for which the land affected by the Order is reserved, or may be leased or granted in fee simple;

(v)    name the person—

       in whom land is directed to be vested;

       to whom a lease of, or the fee simple in, the land is directed to be granted—

       by the Order;

(vi)    specify the conditions and limitations subject to which the Governor—

       confers any power to lease or sub-lease the land;

       directs the grant of a lease of, or the fee simple in, the land—

       by the Order.

(2)    By Order the Governor may direct that—

any land shall vest in and be held by any person for the purpose—

and by the same or any subsequent Order the Governor may, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose—

confer upon that person, power to lease for the purpose the whole or any part of the land.

(3)    (a)    By Order the Governor may direct that—

any land shall be leased for the purpose, by instrument of lease in accordance with the form in the Fourth Schedule to this Act, to any person.

(b)       (i)    The person to whom the land is leased pursuant to the provisions of the last preceding paragraph may, with the consent of the Governor, sublet, for the purpose, the whole or part of the land, or mortgage for the purpose, the whole of the land.

   (ii)    The consent of the Governor may be given subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose and the consent shall be endorsed on the instrument of sublease or mortgage, as the case may be.

(4)      (a)    By Order the Governor may direct that—

any land shall be granted in fee simple to any person subject to the condition that the person shall not lease or mortgage the whole or any part of the land without the consent of the Governor and subject to such other conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose.

(b)    The consent of the Governor may be given subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose.

(5)    When the mortgagee of any land mortgaged with the consent of the Governor, whether before or after the commencement of the Land Act Amendment Act, 1948, completes the exercise of the power of sale or foreclosure pursuant to the mortgage, the land shall by force of this enactment be freed from any trust, condition, limitation, or other restriction, created or imposed in relation to the purpose.

(6)    The provisions of this section shall apply in respect of all land reserved pursuant to the provisions of this Act prior to or after the commencement of the Land Act Amendment Act, 1948.

Consideration

44    It is convenient to begin with the second of the Palyku Applicant’s grounds (see at [7] above) because it can be disposed of briefly. On that ground, the Palyku Applicant simply relied on its contentions concerning the 1895 reservation of the land as a “commonage”. That being so, for the reasons set out above with respect to Question 1, this ground must fail.

45    Turning, then, to the Palyku Applicant’s first ground, it essentially relied on the words “this Act” where they appear in s 33 of the Land Act 1933 as in force after the 1948 amendments. Specifically, in the definition of “land” and “purpose” in s 33(1)(a) and particularly in s 33(6). In essence, it contended that those words confined the operation of that section to reserves created under the Land Act 1933, in the form it took following the passage of the 1948 amendments.

46    There are, in my view, a number of reasons why those contentions must be rejected. To begin with, I consider the State’s summary above (at [31] and particularly at [31(b)]) accurately demonstrates that, by force of the specified provisions of the Land Act 1898, the Land Act 1933 and the Interpretation Act 1918, the Reserve which was initially created under the Land Regulations 1887 was, after the enactment of the Land Act 1933, treated as if it had been created under that Act.

47    Next, it is to be noted that ss 1 and 2 of the Land Act Amendment Act 1948 provided:

1.    This Act may be cited as the Land Act Amendment Act, 1948, and shall be read as one with the Land Act, 1933-1946 (Act No. 37 of 1933, as amended by Acts Nos. 47 of 1934, 4 of 1936, 39 of 1937, 20 of 1938, 36 of 1939, 45 of 1945 and 35 of 1946), hereinafter referred to as the principal Act.

2.    The principal Act, as amended by this Act, may be cited as the Land Act, 1933-1948.

(Emphasis added)

48    These sections provide that the references to “this Act” in the definitions of “land” and “purpose” in s 33(1)(a) as substituted by the Land Act Amendment Act 1948 are to be taken as referring to the Land Act in all of its various iterations since its enactment as the Land Act 1933, up to the Land Act Amendment Act 1948, namely the Land Act 1933-1946, and its final iteration in the form of the Land Act 1933-1948. It follows that the Reserve constitutes land reserved within the terms of those two definitions.

49    This conclusion is supported by three further matters. First, it is confirmed by the words “prior to” in s 33(6). Relevantly for present purposes, those words confirmed that s 33, as substituted by s 5 of the Land Act Amendment Act 1948, applied to the Reserve because, for the reasons set out above, it was reserved pursuant to the provisions of “this Act”, namely the Land Act 1933 as enacted and in its various iterations thereafter.

50    Secondly, it is supported by s 15 of the Interpretation Act 1918. That is so because, by s 5 of the Land Act Amendment Act 1948, s 33 of the Land Act 1933 was, within the terms of s 15, repealed and re-enacted by substituting a provision which dealt with the same subject matter, albeit in more prescriptive terms. Specifically, while both provisions dealt with the vesting of reserved land, the new provision contained detailed prescriptions with respect to the procedures the Executive was required to follow in undertaking such vestings, including giving public notice of the details of any vestings.

51    Thirdly and finally, I consider it is supported, albeit not strongly, by the State’s submissions about the absurdity that would result if the Palyku Applicant’s construction were to be accepted. Specifically, that all the reserves in Western Australia created under the Land Act 1933 prior to the Land Act Amendment Act 1948 could no longer be vested, or otherwise disposed of, and that would create a significant number of reserves that were effectively frozen in time. In this respect, it is important to note that s 33 of the Land Act 1933 as enacted did not contain the words “this Act”. They were first introduced by s 5 of the Land Act Amendment Act 1948.

52    For these reasons, I do not consider there is any inconsistency between s 15 of the Interpretation Act 1918 and s 33(6) of the Land Act 1933 in force after the 1948 amendments. Accordingly, I reject the Palyku Applicant’s contentions to the contrary. I also reject its contentions that s 16 of the Interpretation Act 1918 applies in this matter. That is so because that section dealt with repealing Acts more generally, whereas the pertinent provision in this matter, s 15, dealt with the repeal of a provision of an Act. Finally on this aspect, I also reject the Palyku Applicant’s reliance on the High Court decision in Ocean Road. That judgment dealt with a series of amendments to the Money Lenders Act in Victoria and the operation of the Acts Interpretation Act in that State which were in very different form to s 33 of the Land Act 1933 and s 15 of the Interpretation Act 1918. While one of the amendments in question concerned used the words “this Act”, I do not consider that the High Court’s observations about the meaning of those words in that statutory context provide guidance in the construction of s 33 of the Land Act 1933. In this regard, I mention, without quoting, the observations of McHugh J in Ward at [480].

Disposition

53    For these reasons, Question 2 must be answered “yes”. Since the answer to Question 2 is “yes”, the parties agreed position as stated at [6(a)] above applies. That is to say, the vesting of the Reserve wholly extinguished any extant native title rights and interests in the land and waters covered by the Reserve as at 9 November 1973.

THE SPECIAL LEASE – FACTUAL BACKGROUND

54    The history of the Special Lease is more complicated and extensive. The following factual background is primarily taken by agreement from the written submissions of the Palyku Applicant and the State and the administrative records produced by the State which became Exhibit “B”.

55    Prior to its grant, the area covered by the Special Lease was the subject of Pastoral Leases 394/1045, 394/1084, 394/1085, 394/1086, 394/1087, 394/1147 and 394/1264, together forming Riverdale Station.

56    In or about 1953, the Northern Development and Mining Company Pty Ltd (Northern Mining) entered into an agreement with the lessee of Riverdale Station, Mr James Allsopp, to purchase the pastoral leases comprising that Station for £10,000. Northern Mining was a co-operative venture which was formed at about the time of the Pilbara Aboriginal pastoral workers’ strike of the 1940s.

57    Relying on several articles published in a number of historical journals, the Palyku Applicant provided the following summary of the events surrounding that strike:

When the Pilbara Strike began in 1946, there was no award wage for Aboriginal workers. Instead, Aboriginal workers were paid only subsistence wages that kept them dependent on their employers. This led to one of the most significant Aboriginal workers’ strike [sic] in Australian history. A European Australian named Don McLeod, who gained the respect and trust of the Aboriginal workers assisted them in coordinating and organising support for the strikers. In 1949, a cooperative of Aboriginal people led by Mr McLeod formed the first Aboriginal-owned mining company in Australia, titled [Northern Mining]. With Mr McLeod as managing director, the company flourished with 700 members between 1951 and 1953.

(Footnotes omitted)

58    Partly using monies received from the sale of minerals mined by Aboriginal persons, Northern Mining paid £6,000 of the £10,000 purchase price of Riverdale Station. That sum was paid in instalments. However, before the full purchase price was paid, Northern Mining fell into debt and entered liquidation in 1954. Under the terms of the agreement with Northern Mining, Mr Allsopp repossessed Riverdale Station and subsequently offered it to the Department of Native Welfare for the balance of the purchase price, plus interest.

59    The circumstances in which the Allsopps made that offer were detailed in a memorandum dated 8 March 1955 which the Commissioner of Native Affairs in Western Australia sent to the Minister for Native Welfare in Western Australia. The relevant parts of that memorandum are as follows:

Mrs. Allsopp called to see me this morning, as arranged by your Secretary, Mr. Marshall, when the matter of Riverdale Station was discussed.

        As an outcome of our discussion, recent events and my personal knowledge of the matter the following facts emerge, in that order : –

1.    The Allsopps disposed by sale under agreement of Riverdale Station in 1953.

The parties to the agreement (copy attached) were James Hunter Allsopp, vender, and Rodney O’Shannassy, purchaser.

The purchaser purchased the property as trustee “for a company about to be formed” (page 6 clause 6 (a) of Agreement). It is presumed the “company” referred to was the Northern Mining and Development Company of which Mr. D.W. McLeod was managing director and Mr. O’Shannassy secretary. This company is now in liquidation and Mr. O’Shannassy is the liquidator. No native has ever been a shareholder or officer-bearer of the Company. The purchase price was £10,000 of which £6,000 has been paid in instalments. It seems certain that much, if not all, of the money paid was the proceeds of the sale of minerals obtained by natives working in the Pilbara district in direct or indirect association with D.W. McLeod.

2.    Mr McLeod has now left the Pilbara district and this department has taken over certain responsibilities in respect to the natives referred to in the preceding paragraph, viz. supplying rations to children residing at Yandeyarra station (another Northern Mining & Development property in the Pilbara district) and the marketing etc., of minerals being obtained by the natives. As a result it has been necessary to transfer the district office from Carnarvon to Port Hedland and to engage suitable clerical assistance to the district officer to cope with the additional work connected with the marketing of natives’ produce, purchase of food and clothing, etc. Rationing of children costs approximately £90 per month.

3.    Tenders are being called by the liquidator for the sale of Riverdale Station. I am reliably informed that it may be purchased for the equivalent of the balance owing to the Allsopps (£4,000, plus interest). The liquidator is anxious to sell and the Allsopps to have the matter finalised.

I am firmly convinced that the natives formerly known as the “McLeod Group” have a strong moral claim to ownership of the Station. A number of them are still living on the property which they are managing satisfactorily and, according to Mrs. Allsopp, maintaining in reasonably good order.

If the station is sold to an outside interest, or the Allsopps re-possess (as they are entitled but reluctant to do), the natives referred to will lose all they have put into it.

At the moment natives are incapable of paying the balance owing, or of doing more than keeping themselves in food and clothing. But if this department is permitted to take over completely the management of their affairs – and the natives have expressed their desire that it do so – I am confident it can put them on their feet again and provide satisfactorily for their future needs without their becoming a burden on the State. I have already made the arrangements outlined in paragraph 2 above. The next step required is –

(a)    The acquisition by this department of Riverdale Station on behalf of the natives concerned under Section 6A of the Native Welfare Act, 1954, as soon as possible after the Act is proclaimed.

(b)    The appointment of a suitable manager and welfare assistant.

(c)    The establishment of a hostel for the children of the mining group, utilising the existing homestead and/or station buildings for the purpose so that the children can attend the Nullagine Government School.

        The natives concerned could repay the loan advance made by the department for the purpose of the station on terms to be arranged, but until the loan was paid off and the natives could satisfactorily manage their own affairs on the Station, this department would be in absolute control of the property.

4.    Your approval for the drawing up of tentative plans and an agreement, etc. along the lines suggested is requested, please. It would also be most advantageous if I could be authorised to submit a tender to the liquidator as soon as possible.

(Emphasis in original)

60    A series of handwritten notations appeared at the end of that memorandum. In chronological order, they were:

(a)    on 21 March 1955, from the Minister for Native Welfare to the Premier noting “I concur in above proposals and would appreciate a discussion with you if you deem it necessary. The [Commissioner of Native Affairs] is anxious for early advice”;

(b)    on 28 March 1955, by the Premier “Approved”; and

(c)    on 29 March 1955, by the Minister for Native Welfare to the Commissioner of Native Affairs “For your information”.

61    As a consequence of the process described above, on 17 May 1955, the pastoral leases comprising Riverdale Station were purchased by, and transferred to, the Minister for Native Welfare pursuant to s 6A of the Native Welfare Act 1905 (WA). Neither the original pastoral leases nor the transfer documentation are included in Exhibit B. There is, however, a letter from the Commissioner of Native Welfare dated 9 May 1956 to the Deputy Commissioner of Taxation stating that “[t]he Commissioner of Native Welfare wishes to advise that the Riverdale Station at Nullagine was purchased by the Honourable Minister for Native Welfare under section 6A of the Native Welfare Act on the 17th May, 1955”.

62    Shortly after the purchase (on 20 May 1955), a Proclamation was published in the Government Gazette to the effect that the leases comprising “Riverdale Native Station” (together with some mining tenements and freehold blocks within Nullagine) were declared to be a “Native Institution” within the meaning of s 2 of the Native Administration Act 1905 (WA). That Proclamation also stated that, under the nominated section of the Native Administration Act 1905, “Native Institution” was defined to mean and include “any mission, reformatory, orphanage, school, home, station, reserve, or other institutions for the benefit, protection or care of the native inhabitants of the State”.

63    However, it appears from the available records that, by 4 July 1956, a little over 12 months later, the Commissioner of Native Welfare had decided on a “readjustment of plans”. That readjustment was described in a letter the Commissioner sent on that date to the District Officer, Department of Native Welfare in which he said, among other things:

          In view of the fact that my anticipations – or, rather, hopes – in respect to the development of this property, and to the ability of Mr. Stuart [the Manager employed by the Department] to counter the influence of D.W. McLeod with the natives of that district have not materialised, a readjustment of plans is now necessary.

          Dealing firstly with RIVERDALE: I am interested in this property primarily as a welfare centre. At the same time every effort must be taken to recoup the department for its expenditure on Riverdale to date, and in the future. Consequently existing facilities must be used to best advantage, e.g., the cattle should be utilised for continuing with the butchering business, which, without European supervision, natives apparently were capable of maintaining up till the time the property was acquired by this department. A vegetable garden should provide another small source of income. There may be other avenues.

           Its development as a welfare centre must be continued, however slowly. Spectacular results are, I know, impossible under existing circumstances but we must not be discouraged or deterred by this fact. A start must be made as soon as is practicable to develop the hostel by having proper hygiene and sanitation facilities installed, and so on.

          It is apparent from this letter that the original plans to prevent the Aboriginal persons concerned losing “all they put into” the property and/or to make them self-sufficient as expressed in the 8 March 1955 memorandum above (see at [59]) had been set aside in favour of developing the property as a welfare centre for the Aboriginal inhabitants of the area.

64    This change of plans was confirmed in a letter dated 26 July 1956 which the Commissioner sent to the Under Secretary for Lands, advising that, although Riverdale Station had been purchased by the Minister for Native Welfare with the intention that the station was to “be run by natives in that area for their own gain”, the Department of Native Welfare had been “unable to find natives interested to carry on this property” as originally intended. Accordingly, the Commissioner advised that “it is our intention to forfeit the leases”.

65    The Commissioner’s plans to forfeit the leases were next raised in a letter he wrote to the Under Secretary for Lands on 11 February 1957 advising that it was the preference of the Department of Native Welfare that the pastoral leases comprising Riverdale Station be cancelled and the area be set aside as a “Native Reserve”, with the facilities on the proposed reserve to be “handed over to a Mission to be run as an institution for the training and benefit of natives in the Nullagine area”.

66    To that end, on 22 March 1957 a notice was published in the Government Gazette that the pastoral leases comprising Riverdale Station were forfeited and cancelled pursuant to s 23 of the Land Act 1933.

67    However, the proposal to use the leases as a reserve for the benefit of “natives in the Nullagine area” was waylaid. That occurred on 26 March 1957 when the Under Secretary for Mines wrote to the Under Secretary for Lands and objected to the proposal to create that Reserve because the area of the former Riverdale pastoral leases was considered to be “a potential gold area”.

68    In the end result, a compromise agreement was struck between the Departments of Native Welfare, Mines, and Lands on 15 April 1957, which was then approved by the Western Australian Cabinet on 1 May 1957, to the effect that “the best solution to this problem would be for the Lands Department to make available to the Department of Native Welfare a Special Lease, under Section 116 of the Land Act [1933], of the same land as was comprised in the original ‘Riverdale’ Pastoral Leases, at a nominal rental”.

69    Following on from this compromise, on 4 September 1957, the Lieutenant Governor approved the granting of a lease on the terms described above for a term of 21 years for the “use of Natives”. This approval was evidenced by the Executive Council Minute Paper bearing that date which was signed by the Minister for Lands and stated, in part:

I recommend His Excellency the Lieutenant Governor in Council be advised to approve, under Section 116 of the “Land Act, 1933-1956”, of a lease of the area shown coloured blue on the lithograph at page 138 of Lands and Surveys file 6468/27 being granted to the Minister of Native Welfare for the use of Natives for a term of twenty-one years at a rental of Five Pounds (£5. 0. 0.) per annum.

The bottom of that Minute Paper contained the following notation:

Approved by His Excellency in Council and entered on the Minutes of the Executive Council accordingly.

70    Thereafter, a series of notices was published in the Government Gazette (on 6, 13, 20 and 27 September 1957) giving notice of the intention to grant that lease “for the use of Natives”.

71    In the meantime, by letter dated 11 September 1957 to the Commissioner of Native Welfare, the Under Secretary for Lands advised that, as approval had been obtained from the Governor for a special lease to be granted, in order for that lease to be issued and registered certain forms had to be completed and returned, together with the first half yearly rental.

72    In response, by letter dated 30 September 1957 to the Under Secretary for Lands, the Commissioner of Native Welfare provided an application in the form of the Twentieth Schedule of the Land Act 1933 for the grant of the Special Lease on the terms described above. That application was noted as having been received by the Department of Lands on 3 October 1957.

73    In due course, by letter dated 7 November 1957, the Under Secretary for Lands informed the Minister for Native Welfare that the Special Lease had been granted for the purpose of the “use of Natives” on the terms described above and that that lease would “be issued in due course”.

74    Approximately 19 months then elapsed. At that point, according to an internal memorandum of an officer of the Department of Native Welfare dated 16 June 1959, on or about that date, that Department discovered that a lease document for the Special Lease had not been automatically issued by the Department of Lands. The memorandum went on to note that “[t]he Lands Dept. is now arranging for a Special Lease to be prepared and forwarded to this office. There will probably be a months delay”.

75    Despite the expectation of prompt action, drafting instructions for the Special Lease were not created by an officer of the Department of Lands until 13 October 1959. Those instructions indicated that the relevant date for the issue of the lease should be 1 October 1957. That date appears on the lease document that was eventually issued.

76    Finally, on 19 October 1959, Crown Lease Instrument 744/1959 (the Special Lease) was issued to the Minster for Native Welfare and registered pursuant to s 81C of the Transfer of Land Act 1893 (WA). By letter of the same date, the Under Secretary for Lands informed the Commissioner of Native Welfare that the Special Lease “has been prepared and forwarded to the Land Titles Office for issue, and may be obtained on application made by the lessee or his authorised agent”.

77    Among other things, the Special Lease recorded in its recital clauses that:

… And whereas The Honourable John Joseph Brady Member of the Legislative Assembly in the State of Western Australia the Minister for Native Welfare of the Department of Native Welfare 176 Wellington Street, Perth, in the said State, has made application for a lease of the land hereinafter described for the special purpose of the use of Natives

And whereas the said Governor in Council has approved the granting of the said lease; …

(Emphasis in original)

78    The body of the Lease document also recorded that the Crown did:

… by these Presents demise and lease to the said Lessee the natural surface and so much of the land as is below the natural surface to a depth of forty feet of ALL THAT piece or parcel of land … TO HAVE AND TO HOLD the premises hereby demise [sic] subject to the powers, reservations, and conditions herein and in the said Act contained, and with all the rights, powers, and privileges conferred by such of the said Act as are applicable hereto, unto the said Lessee, for the term of 21 years, to be computed from the first day of October, 1957, for the special purposes aforesaid …

79    Consistent with the provisions of the Land Act 1933, the lease document also contained a number of reservations and conditions, including a power of resumption and a power to take timber, stones and other materials, both of which were stated to be without any right to compensation, as follows:

… Provided, nevertheless, that it shall at all times be lawful for Us, our Heirs and Successors, or for any person or persons acting in that behalf by Our or Their authority, to resume and enter upon possession of any part of the said lands which it may at any time by Us, our Heirs and Successors, be deemed necessary to resume for roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour or river improvement works, drainage or irrigation works, quarries, and generally for any other works or purposes of public use, utility, or convenience, and for the purpose of exercising the power to search for minerals and gems hereinafter reserved, and such land so resumed to hold to Us, our Heirs and Successors, as of Our or Their former estate, without making to the said Lessee, or any person claiming under him, any compensation in respect thereof; so, nevertheless, that the lands so to be resumed shall not exceed one-twentieth part in the whole of the lands aforesaid, and that no such resumption be made of any part of the said lands upon which any buildings may have have [sic] been erected, or which may be enclosed and in use as gardens, or otherwise for the more convenient occupation of any such buildings or on which any other improvements as defined by the said Act have been made without compensation: Provided also, that it shall be lawful at all times for Us, our Heirs and Successors, or for any person or persons acting in that behalf by Our or Their authority, to cut and take away any such indigenous timber, and to search and dig for and carry away any stones or other materials which may be required for making or keeping in repair any roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour works, breakwaters, river improvements, drainage, or irrigation works, and generally for any other works or purposes of public use, utility, or convenience, without making to the Lessee, or any person claiming under him any compensation in respect thereof …

(Emphasis added)

80    Approximately a year later, on 14 September 1960, the Nullagine Road Board wrote to the Under Secretary for Lands and asked to have the Special Lease reviewed to “see if some development can be done on it, or that it be opened to the public for general selection”. The Under Secretary evidently forwarded that letter to the Deputy Commissioner of Native Welfare who responded to the Under Secretary on 27 September 1960 that the land was being held for “natives who, it seems certain, in the reasonably near future will require land for their economic needs. At present no other land is available for their needs”. In a further comment to the Under Secretary made on 18 October 1960, the Commissioner of Native Welfare said that the “natives whose money was used in its original purchase are still interested and hopeful of using and developing the land in the not too distant future. I have at all times promised them the full co-operation of the Department when the time arises; it is a promise which I intend to keep to the letter”. The Commissioner concluded his comments by stating that he would “strongly oppose any attempt to make the leases available to the public for general selection”. In the end result, the Under Secretary for Lands wrote to both the Nullagine Road Board and the Commissioner in November 1960 advising that “it is not intended to make any change in the ownership of the land concerned”.

81    Similar sentiments appear in correspondence between the Commissioner of Native Welfare and Mr Stevens of the Riverdale Native Hostel in April 1961 and the Aborigine Mission Board, Victoria in January 1964 and in internal memoranda within and between various Government departments and agencies throughout the 1960s, including in August 1964, in May 1965, in February, September and October 1966 and in March and May 1968. The constant refrain throughout that period was that the Department of Native Welfare had bought the property and held it “in trust for the natives of the area” because it was considered they had “every moral, if not legal, right to the property”.

82    To complete the history of the Special Lease, on 13 February 1970, a Proclamation was published in the Government Gazette that the Governor had cancelled the existing proclamations of a number of missions and other establishments, including the Riverdale Hostel as a “Native Institution” under s 4 of the Native Welfare Act 1963 (WA).

83    On 8 May 1975, following a request made by the Commissioner for Aboriginal Planning in June 1974, the Special Lease was transferred from the Minister for Native Welfare to the Western Australia Aboriginal Lands Trust, care of the Aboriginal Affairs Planning Authority of Western Australia.

84    The Special Lease expired on 30 September 1978. It was therefore no longer in force when the Palyku #1 claim was filed on 21 April 1999. The area comprising the Special Lease is presently again subject to a pastoral lease.

THE SPECIAL LEASE – QUESTION 3 – WAS IT VALIDLY GRANTED?

Introduction

85    The first of the two questions posed in respect of the Special Lease concerns whether it was validly granted under the Land Act 1933 (Question 3 – see at [5(3)] above). This question addresses the Land Act 1933 as in force in the late 1950s when the Special Lease was granted (see the process described at [69]–[76] above). To identify the issues raised with respect to that question, I will begin by summarising the contentions of the parties and then set out the legislative provisions relevant thereto.

86    Before doing so, it is convenient to record that it was common ground that any exclusive possession native title rights and interests in the land covered by the Special Lease were extinguished in 1921 with the grant of Oil Prospecting Area 20H.

The contentions

87    The Palyku Applicant’s contentions with respect to this question are aptly summarised at [7] above. During oral submissions, it confirmed that the contentions in (a) and (d) of that summary both related to the power of the Minister to grant the Special Lease and, assuming the Minister had that power, (b) and (c) of that summary concerned the irregularities in the process to grant the Special Lease each of which, so it claimed, led to its invalidity.

88    On the former issue, and particularly with respect to (d) of the summary above, the Palyku Applicant submitted that the Native Welfare Act 1905 prescribed that the Minister only had the power to acquire land for the purpose of sale or lease “to a native”, not for “the use of Natives”. Even if that were not so, it submitted that, while the Department of Native Welfare had purchased the Riverdale Station pastoral leases in 1955 “to be run by natives in that area for their own gain”, it was “unable to find natives interested to carry on this property” and the departmental records show that, by 1957, the Department’s plan for the property had changed to using it for “the training and benefit of natives in the Nullagine area”. Accordingly, so it submitted, the Minister did not acquire the land for the stated purpose, namely to lease the land “for the use of Natives”, and he therefore did not have the power to grant the lease.

89    In respect of (a) of the summary above, the Palyku Applicant submitted that, under s 116(14) of the Land Act 1933, a special lease for a term of more than 10 years could be approved by the Governor if he or she gave notice of the lease in the Government Gazette, and if the purpose for the lease fell within one of 13 prescribed purposes in that section, or for “any other purpose approved by the Governor by notice in the Government Gazette”. Since the “use of Natives” was not one of those 13 prescribed purposes, it contended that the Special Lease would only be valid if its purpose was approved by the Governor by notice in the Government Gazette. While the Executive Council Minute Paper (date unspecified) indicated that the Governor had approved “use of Natives” as its purpose, it pointed out that no notice to that effect was published in the Government Gazette.

90    Further, it claimed that the only notices which contained the phrase “use of Natives” were the four notices published in various editions of the Government Gazette in September 1957. Under the heading “NOTICE OF INTENTION TO LEASE”, those notices stated:

IT is hereby notified, for general information, that an application has been received from the Minister for Native Welfare to lease the land formerly comprised in [various pastoral leases] for a term of 21 years for the use of Natives, and that it is intended to grant this lease. (Plan 98/300.)

Since those notices did not comply with the requirements under s 116 of the Land Act 1933, the Palyku Applicant therefore submitted that the Minister did not have the power to grant the lease for that purpose.

91    The Palyku Applicant provided the following summary of the irregularities it alleged had occurred in the grant of the Special Lease (see (b) and (c) in the summary at [7] above):

(a)    the formal application for the Special Lease was not made or received until 3 October 1957, which was after the “Notice(s) of Intention to Lease” had been published in September 1957;

(b)    the Special Lease instrument was dated 1 October 1957, which was prior to the date the formal application was received on 3 October 1957;

(c)    the “Notice(s) of Intention to Lease” were published less than one month before the purported date of the lease on 1 October 1957; and

(d)    the “Notice(s) of Intention to Lease” did not identify the Special Lease as a lease under s 116 of the Land Act 1933.

92    Additionally, the Palyku Applicant emphasised the number of irregularities that had occurred and the fact that the Special Lease involved two arms of the same Executive. It also relied on two single judge decisions of this Court (Daniel v State of Western Australia [2003] FCA 666 (Daniel) and Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 (Banjima)) and a decision of the High Court (Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30 (Forrest)) which, it submitted, supported its contention that a grant such as the Special Lease could only validly be made in the prescribed manner and form. It also submitted that the presumption of regularity is intended to protect third parties from the adverse effects of administrators failing to follow statutory procedures and that presumption should not be applied to protect those administrators from themselves. The Palyku Applicant also emphasised that the Special Lease was an historical tenure and the determination of the present question would not therefore have any effect on any third party rights. Instead, it only concerned whether or not native title rights and interests still existed in the land covered by the Special Lease.

93    Finally, in reply to the State’s primary submissions, the Palyku Applicant submitted that there was no difference between the proposal to grant a lease for longer than 10 years referred to in the proviso in s 116 and the application to grant such a lease referred to the chapeau to that section. As well, it contended that registration under the Transfer of Land Act 1893 did not cure any error in the Special Lease Instrument, relying on Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 (Hayes) at [90].

94    The State’s contentions on this question are conveniently summarised at [8] above. In respect of the Minister’s power to grant the Special Lease ((a) and (d) of the Palyku Applicant’s summary at [7] above), in its written and oral submissions the State accepted that the purpose “use of Natives” was not within the purposes stated in s 116(1) to s 116(13) and it therefore had to rely on “for any other purpose” under s 116(14). It also conceded that it was unable to locate a notice in the Government Gazette which specifically provided that “use of Natives” was a purpose approved by the Governor in accordance with s 116(14). However, it relied on the Executive Council Minute Paper of 4 September 1957 (see at [69] above), the four notices published in the Government Gazette in September 1957 (see at [70] above), and the recitals on the Special Lease itself (see at [77] above).

95    The State did not seek to press the presumption of regularity “too highly”. However, it did claim support in the judgment in Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) at [563] and [567] and the High Court judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [97]. Based on the former, it contended that the appropriate test was whether there was “an element of probability” that the lease had been duly approved and it contended that approach is more readily applied where a requisite notice is missing, rather than where it exists and is in error (referring to Neowarra at [592]). Based on the latter, it contended that the Court should consider the question of inconvenience and should approach the question of validity from the perspective of an existing leaseholder. It added that a finding on this aspect will have general application to special leases in Western Australia.

96    The State also relied on Neowarra at [435]–[443] and [569] to contend that the relevant time to assess the validity of the Special Lease was “when it was granted, and it did matter to somebody”. In any event, the State contended that s 6A(2) of the Native Welfare Act 1905 had the effect of modifying the effect of the Land Act 1933 so as to allow the Minister to acquire land in the manner set out in s 6A(1). Specifically, to acquire land for the purpose of sale or lease to “a native” person. Accordingly, the State contended that these provisions were sufficient to support the validity of the Special Lease even if no gazettal notice existed which would otherwise bring it within the terms of s 116(14) of the Land Act 1933.

97     In response to the Palyku Applicant’s contention that the Minister did not acquire the land for the correct reason ((d) of the Palyku Applicant’s summary at [7] above), the State contended that, under s 6A(1) of the Native Welfare Act 1905, the Minister could acquire the land “whether by purchase, exchange, lease, or otherwise, for the purpose of sale or lease in accordance with the provisions of [that] section”. Furthermore, it contended that, from the departmental records, it was “without doubt” that “the primary intention and the purpose of the Minister in acquiring the land was to lease it back to the Aboriginal people who had previously held or sought to hold Riverdale Station, which was what at least part of the lease area used to be”. It contended that “the Minister tried valiantly to carry out that transfer to those Aboriginal people and it was only after those exhaustive efforts failed that [he] … sought to lease the land to other Aboriginal people”. It added that it was only after he was ultimately unsuccessful that he sought to acquire the Special Lease.

98    As for the four irregularities summarised in the Palyku Applicant’s submissions (see at [91] above), the State accepted (a) and (d) as matters of fact, but not (b) and (c). As a starting point, it sought to rely on the judgment in Banjima at [885]–[893] to contend that the Special Lease did not exist until the Lease Instrument was issued, and the records show that occurred on 19 October 1959. On that footing, it contended that the four notices in the Government Gazette were published during September 1957, at least one month before the Special Lease came into existence (responding to the irregularity in (c) of the Palyku Applicant’s summary). On the same footing, it contended that the formal application for the Special Lease dated 30 September and received on 3 October 1957 pre-dated the grant of the Special Lease (responding to (b) of the Palyku Applicant’s summary).

99    With respect to the irregularity in (a) of the Palyku Applicant’s summary, the State contended that the words “the application for such lease” in the proviso at the end of s 116 was different to the application mentioned in the opening words to that section: “On receiving application in the form of the Twentieth Schedule”. On that basis, it contended that the latter was dealing with the link between the formal application and the grant of the Special Lease and the former was dealing with the link between a proposal to grant a Special Lease and the notice of that proposal. Thus, it contended, the fact that the application in the Twentieth Schedule post-dated the notice published in the Government Gazette is confusing the requirements of the proviso with those of the chapeau. Alternatively, it contended that there had been substantive compliance with the requirements of the proviso in s 116.

100    Further, with respect to the irregularity in (d) of the Palyku Applicant’s summary, the State submitted that there was no requirement in s 116 of the Land Act 1933 for the notices in the Government Gazette to state that the Special Lease was being issued under that section. In any event, it submitted that the notices contained all the necessary information about the Special Lease. As well, the State relied on the Transfer of Land Act 1893 to contend that any error as to the date on the Special Lease Instrument was cured by registration. On this aspect, it also submitted that the judgment in Hayes was distinguishable because, in that case, the error was more fundamental, namely that the lease in question could only be issued for a particular purpose and it was not issued for that purpose. Finally, the State contended that the High Court judgment in Forrest was distinguishable because it dealt with a different legislative regime, namely the Mining Act in Western Australia, and a regime with unique features, namely the system of priorities in claiming mining tenements. It also submitted that the error in that case went to the core of the statutory regime and the fault concerned lay with the tenant applicant and not, as here, officers within the Executive.

The relevant legislative provisions

101    As can be seen from the contentions above, this question hinges on the provisions of s 116 of the Land Act 1933. In the late 1950s, that section was in the following form:

116.    On receiving application in the form of the Twentieth Schedule, the Governor may grant leases of any Crown land in the form of the Twenty-first Schedule, for a term not exceeding twenty-one years from the date thereof, at a yearly rental of not less than two pounds, and on payment by the lessee of the cost of survey, for any of the following purposes (that is to say):––

(1)    For obtaining and removing therefrom guano or other manure.

(2)    For obtaining and removing therefrom stone, gravel, sand, or earth.

(3)    For sites for hotels, stores, smithies, or similar buildings.

(4)    For sites for bathing-houses, bathing-places, bridges, or ferries.

(5)    For sites for tanneries, factories, saw or other mills, stores, warehouses, or dwellings.

(6)    For sites for wharves, jetties, quays, and landing-places, or for sites for the depositing of materials.

(7)    For the working of mineral springs or artesian wells.

(8)    For sites for ship and boat-building, or repairing and marine and general engineering works.

(9)    For the collection and manufacture of salt.

(10)    For taking, diverting, conserving, and using water for mining, agricultural, industrial, and other purposes.

(11)    For works for supplying water, gas, or electricity.

(12)    For market gardens.

(13)    For fishing stations, and for the purpose of drying, canning, or preserving fish.

(14)    For any other purpose approved by the Governor by notice in the Gazette:

Provided that in all cases where it is proposed to grant a lease for a longer term than ten years, notice of the application for such lease and of the purpose and term for which it is proposed to be granted shall be published in four consecutive ordinary numbers of the Gazette, the first publication being at least one month before the grant of such lease.

102    The Twentieth Schedule to the Land Act 1933 was in the following form at the time the Special Lease was applied for:

APPLICATION FOR A SPECIAL LEASE.

……………………………….. DIVISION.

103    Also pertinent to the issue concerning the purpose of the lease are the provisions of s 6A of the Native Welfare Act 1905 as follows:

(1)    The Minister,

(a)    may acquire, land with or without improvements mentioned in paragraph (b) of this subsection, whether by purchase, exchange, lease, or otherwise, for the purpose of sale or lease in accordance with the provisions of this section;

(b)    may effect to or upon the land such improvements, including clearing, drainage, fencing, sowing, and the provision of livestock, machinery, houses, and buildings, and, until sold or leased, the maintenance and repair of the improvements including those already effected to or upon the land at the time of the acquisition, as the Minister thinks fit; and

(c)    may lease the land with the improvements to a native, at such rental for such term and upon such covenants and conditions as the Minister thinks fit; or

  (d)    may sell the land with the improvements to a native

(i)    for cash; or

(ii)    under contract of sale upon such terms and conditions as the Minister thinks fit, including, if the Minister thinks fit, a condition that upon payment by the purchaser of a sum specified in the contract in part payment of the purchase price and upon execution by the purchaser of such securities as the Minister thinks fit to secure the payment of the balance of the purchase price and interest on that balance remaining unpaid from time to time, at such rate as the Minister thinks fit, the Minister shall cause the fee simple in the land to be transferred or conveyed, and the ownership of such of the improvements as comprise livestock, machinery, or other chattels, to be vested in the purchaser, subject to the securities.

(2)    The provisions of the Land Act, 1933, and the regulations under that Act, capable of being applied with or without adaptation for the purpose of giving effect to subsection (1) of this section, may be applied with or without adaptation for that purpose.

(3)    Notwithstanding the provisions of subsection (2) of this section, the Governor may make such regulations as he thinks necessary or convenient for the purpose of giving effect to subsection (1) of this section.

(Footnote omitted)

Consideration

104    The difficulty with accepting the State’s contentions on this question lies with the High Court’s judgment in Forrest, which it sought to distinguish. While that judgment did, as the State pointed out, deal with the failure of an applicant for a mining tenement to comply with the statutory regime established by the Mining Act 1978 (WA), the line of authority upon which the majority relied had its origins in the construction of legislation “which vested the disposition of land not already disposed of by the Crown in the legislatures of the Australian colonies” (emphasis added) (Forrest at [65]). That line of authority established that (Forrest at [64]):

… where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State “prescribes a mode of exercise of the statutory power, that mode must be followed and observed”. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.

(Footnotes omitted)

105    The majority explained that this approach to construction was required because it (Forrest at [65]):

… supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act.

106    Furthermore, their Honours identified three factors which, they considered, made the approach to construction in Project Blue Sky distinguishable when construing such a legislative regime. They were that in Project Blue Sky (Forrest at [62]):

(a)    “the requirement in question regulated the exercise of functions already conferred on the agency, rather than imposed essential preliminaries to the exercise of those functions”;

(b)    “the provisions did not have ‘a rule-like quality which [could] be easily identified and applied’” and instead were “expressed in indeterminate language”; and

(c)    “‘public inconvenience would be a result of the invalidity of the act’, especially if those affected by non-compliance were neither responsible for, nor aware of, the non-compliance”.

107    Having regard to these passages, I reject the State’s contention that the judgment in Forrest is distinguishable. To the contrary, in the circumstances of this matter, I consider I am bound to apply the approach to construction outlined in it. That is the task to which I will now turn. It is convenient to begin by reviewing the legislative regime established under the Land Act 1933 which allowed officers of the executive government to dispose of Crown lands in Western Australia. First, by s 5(1) of that Act, “a Department of State to be called the Department of Lands and Surveys” was established. It consisted of (s 5(2)):

(a)    the Minister for Lands;

(b)    the Under Secretary for Lands;

(c)    the Surveyor General; and

(d)    such other officers as may from time to time be appointed officers of the department.

108    Secondly, under s 6(1), the “Minister for Lands” was charged with the administration of the Act and the Department. Further, under s 6(2), the Minister was established as a body corporate with perpetual succession and a common seal. Hence, the expressions “Minister” and “Minister for Lands” were defined in s 3 of the Act to mean “the responsible Minister of the Crown for the time being charged with the administration of this Act and the Department of Lands and Surveys.”

109    Thirdly, and consistently, the Minister for Lands was given numerous powers and responsibilities under the Act to facilitate the discharge of his or her administrative functions and responsibilities. By way of example, they included the power to direct that Crown land and reserved land be surveyed (s 17); the right, subject only to an appeal to the Governor, to refuse any application made under any part of the Act (s 16(4)); the right of entry to any Crown land to survey, inspect or examine it (s 21); and the power to insert special clauses in any lease, license or occupation certificate (s 20).

110    Fourthly, and most importantly for present purposes, the basal power to dispose of Crown lands in the State was contained in s 7 of the Act. It provided that: “The Governor is authorised, in the name and on behalf of His Majesty, to dispose of the Crown lands within the State, in the manner and upon the conditions prescribed by this Act or by regulations made thereunder” (emphasis added) (s 7(1)). This provision was reinforced by the terms of s 7(2), where the validity of any grant or other instrument disposing of any portion of Crown lands was expressed to be premised on it being “made in accordance with this Act”.

111    Fifthly, the expression “Crown lands” was defined in s 3 of the Act to mean and include:

… (subject to subsection (2) of section four) all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose, or granted or lawfully contracted to be granted in fee simple or with the right of purchase under this Act or any Act hereby repealed, and includes all lands between high and low water mark on the seashore and on the banks of tidal waters, and includes, for the purposes of sections one hundred and sixteen and one hundred and eighteen of this Act, all lands below low water mark on the seashore and on the banks of tidal waters and all lands being the beds of water-courses.

The section of the Act mentioned in this definition (s 4(2)) concerned a group of Acts, including the Mining Act 1904 (WA), which are not pertinent for present purposes. It followed from this definition that lands “for the time being, reserved for or dedicated to any public purpose” did not constitute Crown lands. The statutory process whereby the Executive could reserve or dedicate such lands was contained in Part III of the Act (ss 29 to 37A). Certain of those provisions were considered earlier in these reasons.

112    Sixthly, the Act identified four broad groupings of Crown lands and provided various sets of conditions under which the lands within those groupings could be disposed of. Those groupings were town and suburban lands (Part IV); agricultural and grazing lands (Part V); lands that could be disposed of for pastoral purposes (Part VI); and lands that could be disposed of for special purposes (Part VII). With the exception of town and suburban lands, which were required to be disposed of by public auction (s 38), the other three groupings prescribed conditions under which the Crown lands in those groupings could be disposed of, one of which included a requirement for an application in a prescribed form. For agricultural and grazing lands, the conditions were contained in s 47 and the application was prescribed by s 47(3) to be in the form of the Seventh Schedule to the Act. For pastoral lands, the conditions were generally prescribed by s 90 and the application by s 91(1) to be in the form of the Eighteenth Schedule. Finally, in the case of special leases, the application was prescribed by s 116 to be in the form of the Twentieth Schedule.

113    The importance of a prescribed application was underscored by s 135 of the Act, which required all applications for land under the Act to be in the prescribed form. Furthermore, applications were given priority according to the time of their receipt at the “Lands and Surveys Office, Perth, or at such other places and offices as the Governor may notify in the Gazette”. In the event of two applications being received on the same day, that section contained provisions for determining their order of priority. Finally, on this aspect, it is worth nothing the Minister’s power under s 16(1) of the Act. That section provided that “[a]ll applications under this Act shall be subject to the approval of the Minister, who may insert such conditions and reservations as to him may appear necessary in the public interest”.

114    Seventhly, all leases or licenses under the Act were also required to be in a prescribed form. For example, leases of agricultural and grazing land were required to be in the form of the Eighth Schedule (s 47(4)); leases of pastoral lands were required to be in the form of the Nineteenth Schedule (s 91(2)); and special leases were required to be in the form of Twenty-first Schedule (s 116). Furthermore, each of these prescribed forms contained clauses reserving to the Crown various substances including “gold, silver, copper, tin, or other metals” (s 15(1)) and “marketable timber” (s 15A(1)).

115    Eighthly, the Act contained a myriad of provisions requiring the Governor, or the Minister for Lands, to publish notices in the Government Gazette of actions taken by them in accordance with its provisions. Some of those provisions have already been mentioned. Others included the notification of reserves (s 30); the notification of the sale of town and suburban lands by auction (s 39); and the effect of a notice of forfeiture of a lease or other holding (s 163). All of these provisions were evidently intended to ensure a high level of transparency in the disposal of Crown lands in the State. In this respect, the provisions of s 77 of the Evidence Act 1906 (WA) are also worth noting. That section provided:

Where by any law at any time in force the Governor General or the Governor of any State or of any Australasian Colony, or any Minister of the Crown for the Commonwealth or a State, or any Australasian Colony, is authorised or empowered to do any act, production of the Gazette purporting to contain a copy or notification of any such act shall, before all Courts and persons acting judicially, be evidence of the act having been duly done.

116    Finally, two other features of the Act are worthy of note. First, s 27 imposed an additional and special measure of accountability on the Minister for Lands and reinforced the importance of the notice requirements mentioned above. It provided that:

If any person shall think himself aggrieved by any act or thing done or omitted to be done by the Minister or any officer of the Department, or by the exercise of any of the discretionary powers and authorities by Act conferred upon the Minister, it shall be lawful for such person, at any time within one month thereafter, or within such further time as the Minister may in special circumstances permit, to appeal to the Governor against the commission or omission of such act or thing, or the exercise of any such discretionary power or authority[.]

117    Secondly, and relatedly, certain groups of persons could not acquire Crown lands in the State. They included any “person in the service of the Government of the State, and [any] surveyor who is paid by the Government by results” unless they obtained the previous permission of the Governor in writing (s 25). As well, except in the case of town and suburban lands, no person under the age of 16 years could acquire or hold Crown lands under the Act (s 26).

118    I interpolate that the elaborate statutory regime for the disposal of Crown Lands in Western Australia described above is broadly similar to that established for the disposal of the mineral resources of the State which was considered in Forrest (see at [4]–[33]).

119    Turning, then, to s 116, consistent with the statutory regime outlined above, it permitted the Executive to grant special leases of Crown lands in Western Australia upon certain conditions. However, unlike many of the other provisions mentioned above, it did not do that by using terminology such as “subject to the following conditions” (s 47 regarding agricultural and grazing leases), or “subject to the conditions hereinafter prescribed” (s 90 regarding pastoral leases). Nonetheless, so much is apparent from the statutory context outlined above and is implicit in the terms of s 116 itself.

120    Thus, I consider s 116 required that the following conditions had to be complied with when granting a special lease under the Act:

(a)    that the grant had to be preceded by an application in the form of the Twentieth Schedule;

(b)    that the term of the lease was not to exceed 21 years “from the date thereof”;

(c)    that the lessee had to pay a yearly rental of not less than £2 and the cost of surveying the land if it was not already surveyed;

(d)    that the grant had to be for one of the purposes defined in ss 116(1) to 116(13), or for any other purpose “approved by the Governor by notice in the Gazette” under s 116(14); and

(e)    in any case where the grant was for a term longer than 10 years, notice of the application for the lease had to be published in “four consecutive ordinary numbers of the Gazette”, the first being at least one month before that grant.

121    It is important to note the following features of these conditions. First, they did not regulate functions already imposed on the Minister for Lands, or the Department. Instead, to use the words of the majority in Forrest (see at [106(a)] above), they imposed “essential preliminaries to the exercise” of the power of the Governor, as Head of the Executive, to dispose of Crown lands in Western Australia under the elaborate regime established by the Western Australia Legislature, as outlined above. Furthermore, they each, in varying ways, reinforced the transparency of, and accountability under, that scheme. Secondly, they did so in precise terms that could, again to use the words of the majority in Forrest, be “easily identified and applied”. As well, they were expressed in highly prescriptive terms having a “rule-like quality” (see at [106(b)] above). Accordingly, they comprised “[t]he statutory conditions regulating the making of a grant [that] must be observed” such as to render a grant ineffective in the event they were not complied with (Forrest at [64], see at [104] above).

122    The final consideration going to invalidity mentioned in Forrest was the public inconvenience that would result from such a finding, particularly where “those affected by non-compliance were neither responsible for, nor aware of, the non-compliance” (see at [106(c)] above). In Forrest, the person most affected by invalidity, namely the applicant, was implicated in the non-compliance with the statutory regime concerned and no relevant third party interests were involved. The position is similar in this matter. The grant of the Special Lease did not affect the rights or interests of any third party. Instead, it involved an intra Executive grant between two arms, or departments, of the same Executive. Moreover, it can be readily inferred that the departmental officials who failed to comply with the legislative regime in the Land Act 1933, and particularly s 116, were well aware of its existence.

123    However, there is a complicating factor in this matter. It is that the grant of the Special Lease was for a public purpose, namely “the use of natives” in Western Australia. The question then is whether that factor can act to rehabilitate any invalidity in the grant. Having regard to the nature of the non-compliances, the number of them, and the observations in Forrest at [65] (set out at [105] above) concerning the need to preserve the integrity of a statutory scheme of the kind under consideration in this matter, I do not consider it does.

124    So, having regard to these features of the statutory conditions prescribed by s 116, I consider each of the following failures to comply with these conditions rendered the grant of the Special Lease invalid:

(a)    granting it before receiving an application in the prescribed form of the Twentieth Schedule ([120(a)]) above; and

(b)    granting it for a purpose, notice of which was not published in the Government Gazette ([120(d)] above); and

(c)    granting it before any of the four notices were published in the Government Gazette ([120(e)] above).

125    These conclusions carry with them the rejection of most, if not all, of the State’s contentions above. Essentially, that flows from the fact that they are premised on the Project Blue Sky approach to construction of s 116, rather than the Forrest approach. However, some of those contentions are rejected for reasons unrelated to the latter approach which, briefly stated, are as follows.

126    First, in the circumstances of this matter, I do not accept the State’s contention, based on Banjima, that the Special Lease did not come into existence until the lease instrument was issued on 19 October 1959. In my view, Banjima is distinguishable. It considered whether or not a lease had been validly granted where no lease instrument had been issued. That is not the case in this matter. Moreover, it did not address the question which arises for consideration in this matter, namely whether the Special Lease was invalid because of failures to comply with the conditions prescribed by the Act for such a grant. Moreover, and in any event, I consider the answer on this aspect lies in the words “from the date thereof” in s 116 (see at [120(b)] above). In my view, those words fixed the date of commencement of a special lease as the date of its grant. Those words were intended, in my view, to create certainty with respect to the related requirement in s 116 that the term of a special lease could not exceed 21 years. Accordingly, absent any considerations of invalidity, I consider the Special Lease in this matter commenced to operate, and therefore came into existence, from the date it was granted by the Lieutenant Governor on 4 September 1957.

127    Secondly, I reject the State’s contention that the application mentioned in the chapeau to s 116 is different from the application referred to in the proviso at the end of that section. Section 116 is premised on the receipt of an application in a prescribed form, namely in the form of the Twentieth Schedule to the Act. In those circumstances, the use of the definite article before the word “application” in the proviso makes it clear, in my view, that both the chapeau and the proviso to s 116 are referring to the same prescribed application.

128    Thirdly, I also reject the State’s contention that s 6A(2) of the Native Welfare Act 1905 modified the operation of the Land Act 1933 to allow the Minister to acquire a lease “for the use of Natives” in accordance with s 6A(1) of the Native Welfare Act 1905 without requiring that purpose to be notified in the Government Gazette in accordance with s 116 of the Land Act 1933. That is so because, while s 6A(2) of the Native Welfare Act 1905 assisted the Minister for Native Welfare in the discharge of his or her functions under that Act, I do not consider it had any bearing on the Minister for Lands’ quite specific functions and responsibilities under the Land Act 1933 as outlined above.

129    Fourthly, in the circumstances of this matter, I consider the State was correct not to place great reliance on the presumption of regularity. In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164, McHugh JA described that presumption in the following terms:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office …

“...where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.”

(Citations omitted)

See also Clarke A-JA at 169.

130    Given that the State accepts, as a matter of fact, that the condition described at [120(a)] and [124(a)] above was not met (see at [98] referring to [91(a)]), it necessarily follows that the contrary has been shown with respect to that non-compliance, or irregularity, such that this presumption could not apply to regularise it. Further, given my conclusion at [126] above, the same difficulty arises with respect to the non-compliance, or irregularity, affecting the condition at [120(e)] and [124(c)] above. Finally, since each of those items of non-compliance, by itself, caused the Lieutenant Governor’s grant of the Special Lease to be invalid, I do not consider that invalid act could be relied on by the State to address its inability to produce the Gazettal notice the subject of the condition described at [120(d)] and [124(b)] above.

131    Fifthly, from the reasons given by Olney J in Hayes at [90(iv)], with which I respectfully agree, I do not consider that s 81C of the Transfer of Land Act 1893 assists the State in validating the grant of the Special Lease.

Disposition

132    For these reasons, Question 3 must be answered “no”. Since Question 4 proceeds on the assumption of an affirmative answer to Question 3, it is unnecessary to consider that question.

OVERALL CONCLUSION AND DISPOSITION

133    To sum up, for the reasons set out above, the answers to the four separate questions are as follows:

     1.    Question 1 – “yes”;

     2.    Question 2 – “yes”;

     3.    Question 3 – “no”; and

     4.    Question 4 – it is not necessary to answer.

134    I will hear the parties as to whether they wish to seek any orders consequent upon these answers.

Associate:    

Dated:    5 June 2020