FEDERAL COURT OF AUSTRALIA

Wilson v State of South Australia (No 4) [2020] FCA 1805

ORDERS

THE COURT ORDERS THAT:

1.    There be a further case management hearing at 9:30am (ACDT) on 22 February 2021.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    In 1997, the applicant lodged an application on behalf of the Wirangu people for a determination of native title under the Native Title Act 1993 (Cth) (NT Act). The claim area is situated on the west coast of South Australia and includes parts of the town of Streaky Bay.

2    The respondents to the claim include the State of South Australia (the State), the District Council of Streaky Bay (the Council) and, more recently, the Streaky Bay and Districts Golf Club Inc (the Club).

3    Members of the Club play golf on a course situated on an elongated area of land of about 31 hectares. The large course runs through the centre of the town, roughly parallel with the coast.

4    On 28 February 2020, the State circulated to the applicant and the respondents a draft native title determination proposed to be made by consent in accordance with s 87A of the NT Act (the proposed CD). The proposed CD identifies the claim group as having non-exclusive native title rights and interests in some parts of the golf course but not others, subject to the operation of some clauses discussed later in these reasons.

5    A determination cannot be made under s 87A of the NT Act except with the written consent of all of the respondents. On 26 November 2019 the Court ordered all other respondents to identify those parts of the proposed CD to which they would not consent. In accordance with that order, the Council filed affidavits and submissions asserting that native title in the area comprising the whole of the golf course has been extinguished by reason of a lease it alleged it had granted to the Club in 1994.

6    After receiving written submissions from the other parties, the Council later expanded its argument to include an alternative basis for extinguishment of native title founded on the construction or establishment of a public work, namely the whole of the golf course.

7    The issues raised by the Council are now determined separately in accordance with r 30.01 of the Federal Court Rules 2011 (Cth). The participating parties have formulated the issue as follows:

Whether the applicant’s claimed native title in the land referred to at [3] of the affidavit of Kerin Dare Rain affirmed on 15 April 2020, or alternatively in the portions of that land delineated by the blue boundaries on the map contained in annexure KDR2 (at page 107) (in either case, ‘the land’), has been wholly extinguished by either:

a.    the construction of public works in the nature of major earthworks on the land on or before 31 December 1993, or:

b.    a community purposes lease, or alternatively a lease conferring exclusive possession, in respect of the land granted or intended to be granted by the District Council of Streaky Bay to the Streaky Bay Golf Club Inc, after 1 January 1994 and before 23 December 1996.

8    The issues in (a) and (b) will be referred to as the Earthworks question and the Lease question respectively.

9    Argument on the questions proceeded from the assumption that the members of the claim group are the holders of native title in the relevant part of the claim area subject to the resolution of tenure disputes. No respondent has taken issue with that assumption as it underlies the proposed CD. As no respondent opposed that aspect of the proposed CD, a formal trial in respect of connection questions will be unnecessary. In these reasons, I proceed from the assumed starting point that native title exists in the claim area and that, subject to extinguishment, the members of the claim group are the holders of that native title.

10    The Club was joined as a respondent after the conclusion of argument. It adopted the submissions presented by the Council and did not otherwise seek to be heard.

SUMMARY OF CONCLUSIONS

11    I am not satisfied that the applicant’s native title in the land was wholly extinguished by the construction of public works in the nature of major earthworks on the land on or before 31 December 1993.

12    Nor am I satisfied that the applicant’s native title was wholly extinguished by any lease in respect of the land “granted or intended to be granted” by the Council to the Club after 1 January 1994 and before 23 December 1996.

THE LAND

13    The land that comprises the whole of the golf course may be described by section and allotment numbers ascribed to them in a land title register maintained in accordance with the Real Property Act 1886 (SA) (which have changed over time), or by identification numbers ascribed in the South Australia Property and Planning Atlas, known as DCDBID numbers. The proposed CD identifies relevant portions of the claim area by reference to the DCDBID numbers.

14    The four lots are identified as follows:

15    Under s 5 of the Crown Lands Act 1929 (SA) the Minister may, by notice in the South Australian Government Gazette, dedicate any Crown lands for “park lands or places for the recreation and amusement of the inhabitants of any city, town or place” and “may, at any time before the grant of the fee-simple of any such lands, resume the same wholly or in part by notice in the Gazette, provided that the Minister has had prior consultation with the person (if any) who has the care, control and management of the land the subject of the proposed resumption”.

16    The proposed CD identifies some portions of the lots in which native title has been extinguished, as agreed between the State and the applicant. Those portions are enclosed within red boundaries in an aerial photograph appearing at page 107 within annexure KDR2 to the affidavit of Kerin Dare Rain affirmed on 15 April 2020 (Rain affidavit). They will be referred to as the undisputed parcels. The basis for extinguishment on the undisputed parcels (as agreed between the State and the applicant) appears to be the prior dedications under s 5 of the Crown Lands Act as parklands (in respect of D30979A200, D30979A201 and H651500S327) and as a water management reserve (in respect of a portion of H651500S134) (see [31] – [36] below). The applicant otherwise acknowledges the existence of public works on some portions of land, including portions where roads and buildings are or have been situated.

17    The remainder of the golf course comprises a series of oddly shaped portions enclosed within blue boundaries on the aerial photograph. They are the disputed parcels.

18    The land that is the subject of the separate issue (as formulated by parties) is described in alternative ways so as to encompass either the whole of the golf course or (alternatively) those parts of the golf course that constitute the disputed parcels.

THE EARTHWORKS QUESTION

19    Native title cannot be extinguished contrary to the NT Act:  s 10 and s 11(1).

20    The Council advances alternative bases for the extinguishment of native title in respect of the whole of the golf course referable to earthworks. Each asserted route to extinguishment depends upon the construction and establishment of the golf course as constituting a “public work” within the meaning of the NT Act and upon the application of the Native Title (South Australia) Act 1994 (SA) (State NT Act) to the public work.

21    The expression “public work” is defined in s 253 of the NT Act to mean:

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

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

(ii)    a road, railway or bridge; or

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

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

(iv)    any major earthworks;…

22    “Major earthworks” is defined in s 253 of the NT Act to mean:

… earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.

23    Section  251D provides that a reference to land or waters on which a public work is constructed, established or situated includes a reference to:

… any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

24    If the works for the construction or establishment of the golf course were “public works” as defined, their effect on native title would depend upon the date when the works were commenced or completed as the case may be.

25    The only date specified in the question before the Court is 31 December 1993. However, the parties’ submissions incorporated other critical dates upon which the application of the NT Act and the State NT Act depended.

26    The Council’s principal submission was that the works for the establishment of the golf course were acts attributable to the State that were done prior to 31 October 1975, and that their extinguishing effect on native title was valid.

27    To the extent that the works occurred on or before 23 December 1996 (and hence before the date specified in the question before the Court), the works were said to be both valid and a “previous exclusive possession act” that completely extinguished native title from the date that the construction of the works began:  NT Act, s 23B(7); State NT Act, s 36G.

28    Works occurring after 31 October 1975 and before 1 January 1994 were said to be validated past acts attributable to the State:  NT Act, s 228; State NT Act, s 32. Validated past acts that consist of public works extinguish native title:  NT Act, s 229(4); State NT Act s 34.

29    Notwithstanding the terms of the proposed CD, the State joined in the Council's submissions that the construction of the golf course wholly extinguished the applicant’s native title in respect of all of the disputed and undisputed parcels by the routes just described.

30    The parties’ arguments focussed on two critical questions:

(1)    whether the work for the construction or establishment of the golf course was done on behalf of the Council as required to meet the definition of a “public work” in s 253 of the NT Act; and

(2)    whether the work was “earthworks whose construction causes major disturbance to the land”, so as to fall within the “major earthworks” definition and, if so, what land is to be included in the place on which the works are situated in accordance with s 251D of the NT Act.

The terms of the proposed CD

31    Before proceeding further it is necessary to explain the basis upon which the State and the applicant previously agreed upon the terms of the proposed CD as it affected the area comprising the golf course.

32    On 28 February 2020, the State provided all other parties with its tenure position by way of a spreadsheet and accompanying maps. The relevant extracts are contained at pages 96 and 98 of annexure KDR2 to the Rain affidavit. The tenure history relating to the whole of the golf course is complex not only because the parcels have been redefined and redescribed, but also because of the dedications and resumptions made by the Crown under the Crown Lands Act.

33    The proposed CD reflects the State’s tenure position as agreed by the applicant. It does not reflect the Council’s position that a public work is situated (or is to be taken to be situated) on the whole of the land upon which the golf course is situated, nor its alternate position that a lease was granted in respect of the land on or before 31 December 1996.

34    The statutory provisions underpinning the State’s tenure position are helpfully summarised in its written submission as follows:

6.    Section 24JA applies to a future act (the later act) where:

a.    a valid or validated earlier act was done by (relevantly) the Crown in right of a State on or before 23 December 1996, including (relevantly) to dedicate the whole or part of the land to be used for a particular purpose (the reservation); and

b.    the later act is done in good faith (i) under or in accordance with the reservation; or (ii) in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had.

7.    Section 24JB(1) provides that the later act is valid. Section 24JB(2) provides that if the act consists of the construction or establishment of a public work, native title is wholly extinguished on the land on which the public work is situated as of the date that the construction or establishment of the public work began. Section 24JB(3) provides that if the act does not consist of the construction or establishment of a public work, the non-extinguishment principle applies.

(footnote omitted)

35    Section 238 of the NT Act sets out the consequences of the non-extinguishment principle applying to an act covered by s 24JB(3). It provides that if the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly, but is suppressed for the duration of the acts.

36    The position reflected in the proposed CD is that:

(1)    The State dedicated each of the undisputed parcels for the purposes of parklands before 23 December 1996 and, in so doing, dedicated the whole or part of the land now forming the golf course for a particular purpose.

(2)    The golf course was originally constructed in accordance with the power conferred on the Council under s 458 of the Local Government Act 1934 (SA) (LG Act).

(3)    The construction and use of the parcels as a golf course was a later act done in good faith under or in accordance with the reservation of the parcels as parklands.

37    The proposed CD does not in terms specify whether the future acts occurring on the land in accordance with the dedication constituted “public works” (such that native title would be wholly extinguished in accordance with s 24JB(2)) and which of them did not (such that the non-extinguishment principle would apply in accordance with s 24JB(3)).

38    Clause 2 of the proposed CD describes the whole of the area to which the determination relates, of which the golf course forms a part. Clause 3 states that subject to Schedule 6, native title exists in the land and waters described in Schedules 3, 4 and 5. Clause 6 states that native title has been extinguished in those areas described in Schedule 6.

39    Clause 2 of Schedule 6 provides:

Native title rights and interests have been extinguished in the areas of Native Title Land covered by Public Works (including the land and waters defined in section 251D of the NTA) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date including but not limited to the following:

(a)    toilet block constructed by or on behalf of the Wudinna District Council on Section 114 in the Hundred of Minnipa;

(b)    boat ramp and car park constructed by or on behalf of District Council of Streaky Bay on section 374 in the Hundred of Ripon; and

(c)    toilet block, boat ramp and car park constructed by or on behalf of District Council of Streaky Bay on section 243 in the Hundred of Wrendfordsley.

40    The non-exhaustive list in that clause does not include the works for the construction of the golf course.

41    Draft orders circulated with the proposed CD include an order granting the applicant (through a prescribed body corporate) or any other party liberty to apply to the Court for the purposes of establishing the precise location and boundaries of any public works and adjacent land and waters referred to in Schedule 6 and to determine the effect of any such public works on the applicant’s native title rights and interests. Presumably upon such an application it would be expected that the Court would grant declaratory relief as to the precise boundaries of the works forming the subject of the application and their effect on native title.

Relevance of the disputed parcels

42    As has been said, the applicant accepts that native title has been extinguished in respect of the undisputed parcels. But that does not render those parcels irrelevant to the issues to be determined. It is necessary to have regard to the activities that have occurred in respect of all of the parcels that constitute the golf course, whether “disputed” or not, for two reasons. First, the question before the Court describes the land subject to the present enquiry in alternative ways that necessitate consideration to be given to the whole of the land on which the golf course is situated. Second, it is conceivable that works may be taken to have been situated on a disputed parcel by the operation of s 251D of the NT Act, even if the activities causing “major disturbance to the land” occurred on adjacent land falling within an undisputed parcel. To the extent that the applicant submitted that activities on the undisputed parcels are irrelevant in determining the questions presently before the Court, I do not accept the submission.

Evidence

43    All of the affidavits adduced by the parties have been read, together with their annexures. None of the deponents was cross-examined. The narrative that follows may be understood as based on my consideration of the whole of the unchallenged evidence. The findings focus on specific features of the golf course, as that was the approach taken in the evidence. The assertion that the golf course as a whole constitutes a public work will be considered elsewhere in these reasons.

Facts

44    The earliest evidence of golfing activities occurring on the land is a championship board naming Mr WH Browning and Mrs RW Cook as the “Streaky Bay Golf Club” champions in 1929. The size of the area occupied by the golf course at the time that Mr Browning and Mrs Cook played is unknown. The Club itself did not exist as a body corporate at that time.

45    Historical maps of Streaky Bay dating back to the 1880’s show the area now occupied by the golf course as “parklands” and as otherwise including a police reserve.

46    The Council was established on 5 January 1888:  District Councils Act 1887 (SA), s 7 and s 8, Sch 2. The town of Streaky Bay has been within the Council’s area of responsibility since that time.

47    Prior to 1975, the LG Act provided that all parklands within an area were under the care, control and management of the council of the area for the purposes of that Act:  LG Act s 450.

48    Section 667 of the LG Act gave councils comprehensive powers to make by-laws, including about the regulation and conservation of parklands. Section 779 imposed penalties for the damage of any property under the council’s care, control or management.

49    Section 454 of the LG Act provided that a council could adapt parklands, reserves or land to the purpose of public recreation, amusement and enjoyment. Section 458(1) provided that a council may construct golf courses and other sporting facilities on parklands and issue permits to any persons for the use of the golf courses. It was an offence to use such golf courses without a permit or licence:  s 458(3).

50    The Club became an incorporated body under the Associations Incorporations Act 1956 – 1965 (SA) on 22 April 1975. However, it was not at that time responsible for managing the land on which the golf course was situated.

51    In or around 1975, the Council established the Streaky Bay Golf Club Area Management Committee as a controlling body under s 666C(1) of the LG Act as then in force. The Management Committee was responsible for managing the golf course on the Council’s behalf. In accordance with s 666C(2), the Management Committee was comprised of both members and non-members of the Council.

52    Aerial photographs taken in 1967 show the existence of a nine-hole golf course encompassing the undisputed parcels and the disputed parcels. The course itself was then (as now) comprised of scrapes, tee-off points, bunkers and fairways.

53    In 1967 the course was crossed by three roads including the main highway passing through the town and a road known as the Sceale Bay Road. At least two of the fairways passed over the Sceale Bay Road, with players driving balls over passing traffic (or hopefully so).

54    In 1967 the golf course occupied the same total area of land that it occupies today. It is a very large area when considered in the context of the town as a whole and having regard to the size of the housing allotments that surround it. There were (and remain) club rooms and a car park situated on the inner eastern part of the course.

55    Then, as now, the land was accessible to the public. As the aerial photographs demonstrate, it would be difficult for a pedestrian to walk from the north to south side of the town without passing through the golf course or taking an inconvenient detour around it.

56    In 1967, as now, the vast majority of the golf course was comprised of the grassed areas that form the fairways (expanses of land cleared of vegetation) together with vegetated surrounds. In the aerial photographs, the area occupied by the club rooms is very small relative to the size of the golf course as a whole.

57    The Sceale Bay Road (and an area surrounding area it) as well as the club rooms, car park (and large areas surrounding them) are situated within the undisputed parcels. In other words they are areas in respect of which the applicant agrees native title was extinguished.

58    An aerial photograph taken in 1998 shows changes to some features of the golf course. Based on the evidence as a whole, I am satisfied that the photograph fairly represents the extent of the construction and establishment of the golf course as at 31 December 1993.

59    The evidence does not establish to the requisite standard what (if any) works were carried out on the land in the period between 1967 and 30 October 1975. The evidence of works occurring between 1975 and 1994 is more specific. Two witnesses have deposed to events occurring in that period from their living memory. Whilst the beginning and end dates for the activities they describe are not in all cases specific, that lack of precision does not bear on the outcome, for reasons that will soon become apparent.

60    David Lane was the Chief Executive Officer (formerly titled District Clerk) of the Council from November 1985 until July 2003. He first began working for the Council in 1977. Mr Lane has also had a long association with the Club, serving for many years in the joint role of Secretary and Treasurer. He has played golf on the course since 1978 and was made a life member of the Club in 2003.

61    John Rumbelow was the Chief Executive Officer of the Council from 2003 to 2008. Between 1985 and 2003 he was the Deputy Chief Executive Officer (formerly Deputy District Clerk) under Mr Lane. Mr Rumbelow has played golf on the course since 1972. He, too, has been an office bearer of the Club and was made a life member in 2001.

62    On the basis of the evidence given by Mr Lane and Mr Rumbelow, I am satisfied that between 1975 and 1994 there were changes to the configuration of the course having the effect of relocating or reconfiguring some of its features such as holes, tee-off points, scrapes and fairways. The changes altered the configuration of the game, in which certain tee-off points, scrapes and fairways do double duty. Only one new fairway was established and other fairways changed shape. A new hole 3 was established and the remaining holes and fairways were renumbered.

63    Mr Lane’s evidence is brief. He does not remember specific details of any particular works conducted in that period although he does recall that the activities “involved major earthworks, and required permission to rip up and remove vegetation from some areas”. Whilst I accept that significant vegetation clearance (and also revegetation) occurred as the game configuration on the course changed, whether the works overall should be described as “major earthworks” within the meaning of the NT Act is for the Court to decide in accordance with the statutory definition. I give little weight to Mr Lane’s characterisation and make my own evaluation based on the underlying facts.

64    The works described in the affidavits of Mr Rumbelow and Mr Lane are otherwise as follows.

The Sceale Bay Road

65    The Sceale Bay Road was a gravel forked road passing north south through what was previously fairway 2 (now fairway 4). The road sat 30 – 60 cm below the level of the fairways on either side of it. Between 1975 and the early 1980’s the road surface was dug up using a grader or bulldozer. At least 80 cubic metres of top soil was in-filled and grass was seeded over the top. Remnants of the road are visible in the 1998 aerial photograph, although only faintly. The former location of the road and its surrounding vicinity falls within an undisputed parcel.

Bunkers

66    Areas described as “mounds and bunkers” are marked on the 1967 aerial photograph. They appear as irregular shaped areas on the approach to, or partially encircling many of the scrapes. They vary in size, some of them similar in size to the scrapes, some larger, some smaller. All of them are very small in surface area relative to the size of the land as a whole. According to Mr Rumbelow all but “one or two” of the bunkers were filled prior to 1994. That is evident from the 1998 aerial photograph, which shows only a few such features remaining, all of them smaller in area to the nearby scrapes. The affidavits do not otherwise address the manner of construction, or removal of the bunkers.

Scrapes

67    A scrape is a putting surface. It is formed by introducing and compacting imported base material on the earth’s surface to form a raised mound with a flat top, over which a fine layer of material is laid. The scrapes were initially constructed of silica sand and later from slag sourced from a lead smelter. More recently, the scrapes have been formed with creek sand. The top layer is now constituted of irrigated greens, although that improvement did not occur until after 1994.

68    I am satisfied that in 1994 there were 10 scrapes in play, whereas previously there had been 13.

69    Of the 10 scrapes in existence in 1994, most of them were situated on the disputed parcels.

70    Prior to 1994 (as now) different scrapes had different heights above their associated fairways. Some were more-or-less at ground level, but most were built up. The “Crows nest” scrape near (old) fairway 3 was the highest, standing about 1.8 metres higher than the fairway at its rear. It is not typical of the other scrapes. It is situated on a disputed parcel.

71    A photograph of the scrape at hole 16 looking back over the fairway depicts an elevated area with a fairway behind it. The surface area of the elevation is not specified in the evidence. It appears to be a circular shape of approximately 15 square metres. The height of the elevation does not appear to be more than 60 cm. In the absence of evidence to the contrary it is reasonable to infer that the scrape at hole 16 is typical of most of the other scrapes.

72    Mr Rumbelow estimates that approximately 500 cubic metres of earthworks “occurred” in the construction and removal of the scrapes, although he does not specify any basis for that calculation, nor does he state how much of the earth was utilised in the building of the scrapes, as opposed to the removal of previously man-made features to reduce the scrapes in number from 13 to 10. Mr Rumbelow does not suggest that 500 cubic metres of earth was excavated from below natural ground level. The figure of 500 cubic metres of earthworks in connection with the scrapes is otherwise difficult to reconcile with the figure of 80 cubic metres of top soil brought in to raise and revegetate the land where the Sceale Bay Road (a much larger surface area) was once situated. The difference in figures may be explained by the importation and compaction of fill used to create the scrapes, but the position is far from clear.

Tee-off points

73    Tee-off points are areas of land raised above natural ground level. They are created by compacting mounds of earth on the surface of the ground. A number of the tee-off points are about 20cm above ground level. Some are built higher. They are considerably smaller in surface area than the scrapes.

74    The most built up tee-off point is that for hole 2. A photograph shows a mound of about 2 metres in height. Players reach the tee-off point by climbing steps. Mr Rumbelow estimates that approximately 25 cubic metres of earth was utilised to create that particular tee-off point.

75    Again, that evidence is difficult to reconcile with Mr Lane’s evidence that 500 cubic metres was used to create the scrapes. However, in the result, nothing of significance turns on the apparent discrepancy.

Fairways

76    A fairway is created by using a grader to clear the surface of the ground so that grass may grow over the cleared area. The shapes of the fairways are depicted in both the 1967 and 1998 photographs. I am satisfied that immediately prior to 1994, the vast majority of the land constituting the golf course was dedicated to fairways which, for the most part, were cleared of vegetation.

77    Mr Lane recalls that front-end loaders and seeding combines were used to till the ground and to mass-plant grass seeds along the fairways, including (and especially) at the time that the Sceale Bay Road was removed.

78    It is otherwise reasonable to infer from the aerial photographs that the creation of a new fairway and the reshaping of other fairways involved the removal of vegetation and the seeding of grass.

79    By reference to the aerial photographs, I am satisfied that the total area of land dedicated to fairways did not significantly change between 1975 and 31 December 1993 relative to the size of the land as a whole, although the shapes of the fairways did alter so as to incorporate an additional fairway into the course.

Mounds

80    As at 1975 there were some mounds incorporated into the fairways to change the configuration of the game. They formed elevations in the land of about 8 cubic metres. Between 1975 and 1994 “three or four” of the mounds were removed. They are described in the evidence by reference to the aerial photographs in a way that does not distinguish them from the bunkers referred to earlier.

Entrance reconfiguration and carpark

81    The 1967 aerial photographs shows club rooms, an entrance road and car park already in existence. In the 1980’s the existing driveway was removed and a new driveway and large all-weather car parking area was created. The works for the car park affected an area of 1500 square metres. The car park was created by levelling the surface with a grader, adding a road base and compacting it with heavy rollers. The club rooms were extended and improved in the relevant period.

82    The entrance, club rooms and car park and a significant area surrounding those features are located on an undisputed parcel. From at least 1967, scrape 9 (also forming scrape 18) has been situated within the same parcel. The evidence does not demonstrate whether that scrape was constructed before or after the works for the original construction of the club rooms and car park.

Works on behalf of the Council

83    In King v Northern Territory of Australia (2007) 162 FCR 89, Moore J said of the expression “on behalf of” at [183]:

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

84    In Bell on behalf of the Wakka Wakka People #3 v State of Queensland [2019] FCA 2005, Rangiah J elaborated on Moore J’s analysis (at [40]):

…  As Moore J indicated in King at [183], the phrase requires that the construction or establishment of the work be done directly or indirectly ‘for’ the Crown, a local government authority or an emanation of the Crown. A work that does not have this character when it is constructed or established does not acquire such a character when the land it is situated on is purchased or otherwise transferred to the Crown, a local government authority or a statutory authority of the Crown.

85    There will be cases where the task of determining whether an act has been done by one person or entity on behalf of another will involve some complexity:  see for example Citizens Airport Environment Association Inc v Maritime Services Board (1993) 30 NSWLR 207. This case is not one of them.

86    It is to be recalled that the Club itself became an incorporated body in 1975 but did not at that time have responsibility for the management of the land. That responsibility fell to the Management Committee established in the same year.

87    The unchallenged evidence is that the works for the removal of the Sceale Bay Road and the establishment of the new car park were undertaken by the Council. I accept that evidence.

88    In respect of the other works carried out between 1975 and 1994, Mr Rumbelow said (and I accept):

At all times that works were carried out, the Council through the Golf Club Area Management Committee knew what was proposed and what was occurring, and authorised the works. This was a mostly informal process because it was almost entirely the same people who were on the Management Committee as were running the Golf Club, and many of them were also Councillors or council staff. Everybody was aware that it was the Council’s park lands and ultimately the Council’s golf course although the Golf Club effectively managed the day to day operations.

89    There is no direct evidence before the Court as to who carried out the works for the creation of the golf course itself in the decades prior to 1975. However, to the extent that the works were undertaken by persons who were not officers or employees of the Council, it is most unlikely that the works could have been carried out without the Council’s knowledge or authorisation. I consider the works undertaken on the land constituting the golf course reflected the circumstance that the parcels in question were dedicated as parklands or other reserves within the Council’s area of responsibility. The Council had express statutory power to develop the lands for sporting and recreational activities, including for the purpose of establishing a golf course:  LG Act, s 458. The land has at all relevant times been under the legal control of the Crown and subsequently of the Council under the LG Act. It is more probable than not that the Council exercised that control by its Management Committee from 1975 until at least 1994. The conclusion that the works were carried out on behalf of the Council is further reinforced by the existence of criminal offences that would prohibit any person undertaking development on the land without the Council’s permission.

90    There can be no question that the members of the Club enjoyed the benefits of the work and that they participated significantly in the physical tasks necessary for it to be done, as described in the affidavits. It is also true that some of the individuals who contributed to the physical work had dual roles within the Club and the Council. But that does not disprove the conclusion that the works were undertaken for or on behalf of the Council as that phrase is used in the “public work” definition.

Was there major disturbance to the land?

91    The primary argument advanced by the Council is that all of the works for the construction of the golf course are to be considered as a whole and that the works involved a major disturbance to the whole of the land in question. On that analysis, it was submitted, “major earthworks” are situated in fact on the whole of the land comprising the golf course without resort to s 251D of the NT Act. The alternative argument is that some elements of the works constituted major earthworks and that those works must be taken to be situated on the whole of the golf course by the deeming operation of s 251D.

92    By way of example, of the latter approach it was submitted that if the Court should determine that the construction of the scrapes involved major disturbance to the land in the relevant sense, then s 251D would operate to include the fairways in the land on which the works were “situated” (even if the construction of the fairways did not involve major disturbance in and of themselves). That conclusion was said to follow because the fairway was adjacent to the land on which the earthworks occurred and because the use of the fairway was “necessary for, or incidental to, the construction, establishment or operation of the work” within the meaning of s 251D. It is in that way that major earthworks occurring in fact upon one part of the golf course (including on an undisputed parcel) were said to have the consequence that a public work is situated on the whole of the course.

93    The applicant’s concessions in respect of the undisputed parcels recognises that public works have occurred on some parts of the golf course, particularly the construction of the Sceale Bay Road and the construction of buildings such as the club rooms. That position recognises the effect of para (a)(i) and para (a)(ii) of the “public work” definition and is already reflected in the proposed CD.

94    The question before the Court asks whether the applicant’s native title has been wholly extinguished by major earthworks within the meaning of para (a)(iv) of the definition situated on the whole of the land forming the golf course.

95    To answer that question it is necessary to identify whether major earthworks have taken place on any part of the golf course “on which native title would otherwise exist”: see NT Act, s 226 (act “affecting native title”), s 227, s 228 (“when native title existed”). It is only if that question is answered in the affirmative that s 251D of the NT Act can be sensibly applied in relation to any relevant land adjacent to those works.

Meaning of “major disturbance”

96    In Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1, Barker J said (at [1467]):

Whether an earthwork is major would also depend, I consider, on the terrestrial context of the earthworks, for example a pit of this size in somewhere like Kings Park, Perth, in a nature reserve, would I think be considered a major earthwork, but in a vast area of remote country near a gravel road, probably not so.

97    Barker J considered whether the construction of gravel pits were works which caused major disturbance to the land. The pits were between 1 and 5 hectares in size and had a typical depth of 1 metre. His Honour concluded that the works were not sufficient in scale to constitute major earthworks when considered in the context of the land as a whole:  at [1462] – [1468].

98    In Rubibi Community v State of Western Australia (No 7) [2006] FCA 459, Merkel J considered whether the construction of an oval within a reserve was a major earthwork. His Honour said (at [132]):

McMahon Oval is [a] reserve [that] includes an uncompleted sports oval which covers approximately 40% of the reserve. The oval has never been used as an oval. There was uncontested evidence that, in the course of creating the oval, the Shire carried out earthworks and installed drainage ditches and paths. There was also evidence that the whole of the reserve was traversed and disturbed by heavy earthmoving equipment during the creation of the oval and drainage ditches. A water storage tank was installed in the northern corner of the reserve. I undertook a site visit to McMahon Oval. I am satisfied that creation of the oval was a major earthwork ...

99    In Margarula v Northern Territory (2016) 257 FCR 226, Mansfield J said at [348] that while “major” could not qualify the word “disturbance” with any degree of precision, the use of the word “major” means that not all disturbances to the land will satisfy the definition. His Honour continued [349]):

The Explanatory Memorandum to the Native Title Bill 1993 (Cth) affords some assistance to the task of interpretation. It states that ‘[t]he definition of this term is intended to cover major or large scale works such as dams and weirs whose construction permanently and significantly disturbs or changes the land.’ It goes on to note that ‘the digging of a well, cultivating land to grow crops or establishing a walking trail in a national park would not constitute major earthworks.’ I consider that accords with the natural meaning of the word major, and in the overall context it is also sensible generally to require a disturbance which has permanently and significantly disturbed or changed the land.

100    Mansfield J concluded that a sealed and contoured go-kart track with perimeter drainage works and occupying a significant space was clearly intended to exist indefinitely, contributing to a conclusion that it was a major earthwork in accordance with Merkel J’s analysis in Rubibi:  at [352] – [353].

101    As has already been observed, the construction of buildings such as the club rooms and the Sceale Bay Road each satisfy the definition of a “public work” because they are a “building” and a “road” respectively (see para (a)(i) and para (a)(ii) of the definition). The creation of those structures first occurred prior to 1975 and so had the effect of wholly extinguishing native title on the land on which they were situated. However, the Council did not suggest that the remainder of the 31 hectares of land on which the golf course is located should be considered as land upon which the road and club rooms must be taken to be situated because of the operation of s 251D of the NT Act. If I have misunderstood the Council’s position in that respect I would conclude that s 251D does not have that operation on the facts. It has not been submitted that the whole of the golf course was incidental to or necessary for the construction and use of the road or the club rooms, nor does the evidence establish any such proposition.

102    The evidence in relation to the reintegration of the land on which the road once stood no doubt involved a major disturbance to the land, but native title on that parcel of land had already been wholly extinguished by virtue of the construction of the road prior to 1975. The same may be said of the later extensions to the club rooms and driveway incorporating the car park. That work occurred on land on which native title was wholly extinguished by virtue of the original construction of the building and car park prior to 1975. I not consider s 251D of the NT Act operates in a way that would include the remainder of the 31 hectares of land to be land upon which the works for the original construction or later expansion of the club rooms or car park is situated in any event.

103    It remains to determine whether the works for the establishment of the golf course caused a major disturbance to the land when considered as an integrated whole. In the analysis that follows I will focus first upon discrete features of the course (as that was the approach taken in the evidence and submissions), before analysing them together.

104    An important feature of the “major earthworks” definition is its focus on disturbance to the land itself, rather than upon the erection of fixtures or features upon or above the land’s surface per se. The disturbance must be “to the land”, and it must be “major”.

105    I do not consider the planting of grass on the surface of land to constitute a major disturbance, even if the process of vegetation involves some amount of grading with heavy machinery in preparation for seeding, together with significant human effort. The same may be said of works involving the removal of vegetation. The removal of vegetation and the seeding of grass no doubt changed the aesthetics of the land, and significantly so. It also altered the uses to which the land could be put, transforming it from what the Council described as “scrubland” to a golfer’s fairway. But a change to the appearance or amenity of the land’s surface is not the test. It is necessary to have regard to the impact upon the land, both qualitatively and quantitatively.

106    In my evaluation the removal of vegetation or the reseeding of the land with grass did not cause “major” disturbance to the large tracts of land forming the fairways, notwithstanding their very large surface area. I consider that if the fairways were to be left unmaintained, they would soon enough revert to “scrubland” of the kind that existed before golf was first played there without the need for any remedial activity. It follows that the fairways, of themselves, do not constitute major earthworks and so are not public works.

107    Whether the land constituting the fairways must be taken to be included in land on which other public works are situated will be dealt with elsewhere in these reasons.

108    The applicant submitted that the activities undertaken on and relating to the golf course did not involve major disturbances to the land and instead constituted “modification and adaption of the parklands to allow golf to be played” occurring in an evolutionary way over a number of decades. It was submitted that the ongoing changes indicated that the features of the golf course referred to in the Council’s affidavits could not have been intended to exist indefinitely. The impermanent nature of the changes was said to have been illustrated by yet further alterations to the golf course occurring after 1994 to the present day. Those further changes are evidenced by additional aerial photographs. It is unnecessary to describe them here.

109    In my view, it may reasonably be inferred that the works for the creation of the features of the golf course (and the later changes to those features) were subjectively intended to be indefinite at the time that they were undertaken. However, the fact that a significant number of features of the golf course were removed, relocated or altered from time to time is informative of the objective nature of the works and the degree to which they have impacted the land. The removal of mounds and scrapes is illustrative. Qualitatively speaking, the construction of scrapes and mounds involved the importation of fill for the purpose of raising the level of some parts of the ground to varying degrees. The evidence does not demonstrate that the construction of the mounds and scrapes involved disturbance of the land surface before fill (in the nature of imported slag or creek sand) was mounded upon it. Whilst the construction of those features no doubt involved the use of heavy machinery and the importation of fill, I am not satisfied that those activities constituted major earthworks when considered in the context of the golf course as a whole.

110    Whilst Mr Lane and Mr Rumbelow both referred to features of that kind being removed or replaced, it was not suggested that the land below the compacted mounds was significantly “disturbed” such as to require remedial works of any significance to be done to the underlying land when the man-made elevations were taken away. There is no evidence of remedial works in fact being undertaken so as to rehabilitate the land formerly covered by relocated scrapes or mounds, and it does not appear from the evidence that any such remedial work was required in fact. In my view, upon the removal of features of that kind, the land below was in its original state, as it had always been.

111    It is conceivable that the construction of mounds and scrapes may have caused some compaction in the underlying land, but there is insufficient evidence to support a finding that the compaction was “major” in its effect. I would draw that conclusion no matter what the height of each scrape.

112    The impact of the scrapes, tee-off points and mounds may also be considered having regard to the size of the footprint occupied by them relative to the surface area of the golf course as a whole. In the context of an area totalling 31 hectares, the areas on which the tee-off points and scrapes are situated are very small indeed. That is not to lose sight of the importance of considering the golf course as a singular “work”, but if the scrapes and tee-off points are to be regarded as the most serious of all of the wounds on the land, I consider them to be few and far between.

113    Two mounded features require specific attention:  the tee-off point and the scrape described earlier in these reasons at [74] and [70] respectively. Each of those features is significant in height relative to the usual height of the surface of the land. As has been said, the tee-off point is accessed by players using stairs to reach it. Notwithstanding their size relative to the other mounded features, I do not consider these features to be significant when considered in the context of the land as a whole and I do not consider the works for the construction of those two features to constitute major earthworks when considered both qualitatively and quantitatively.

114    As Mansfield J said in Margarula, by reference to the Explanatory Memoranda, the “major earthworks” definition is intended to cover large scale earthworks such as damns and weirs which permanently (or at least indefinitely) disturb the land. The evidence shows that the mounds are not immovable from the earth’s surface and that they have in fact been removed or rebuilt in accordance with the Club’s desires to change the configuration of the game from time to time. As has been said, neither their construction nor their removal involved major disturbance to the land in the requisite sense.

115    In the result, I am not satisfied that the construction of any one particular feature of the golf course referred to in the evidence and occurring after 31 October 1975 and before 1 January 1994 constitutes a major earthwork when considered separately. Accordingly, it is unnecessary to determine whether s 251D of the NT Act would operate to deem land to be included in the place where each of those asserted public works is situated. Nor do I consider those features described in the affidavits to constitute a major earthwork when considered together in the context of the golf course as an integrated whole.

116    I do not consider the works occurring prior to 31 October 1975 to differ in their nature to the works that occurred after that time. I am not satisfied that the original establishment of the golf course fulfils the definition of a “major earthwork” when considered as an integrated whole.

117    Whilst I am satisfied that much of the surface of the land has been disturbed by the evolutionary creation of the golf course over many decades, the evidence does not establish that there has been “major disturbance” to the land within the meaning of that phrase in the NT Act.

118    It follows that the answer to the Earthworks question is no.

THE LEASE QUESTION

119    As at the date of its incorporation, the Club occupied the land pursuant to a bare licence revocable at the will of the Council.

120    The question presently before the Court is limited to whether native title in the land was wholly extinguished by virtue of “a community purposes lease, or alternatively a lease conferring exclusive possession, in respect of the land granted or intended to be granted by the District Council of Streaky Bay to the Streaky Bay Golf Club Inc, after 1 January 1994 and before 23 December 1996”.

121    The Council submits that a lease so described was in existence at the relevant time and that it constituted a “previous exclusive possession act”.

122    A “previous exclusive possession act” is relevantly defined in s 23B(2) of the NT Act as follows:

(2)    An act is a previous exclusive possession act if:

(a)    it is valid (including because of Division 2 or 2A of Pt 2); and

(b)    it took place before 23 December 1996; and

(c)    it consists of the granting or vesting of any of the following:

…

(vi)    a community purposes lease (see section 249A)

…

(viii)    any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

123    If the asserted lease was a “previous exclusive possession act”, it was submitted that its extinguishing effect was confirmed by s 36F of the State NT Act, unless it contained a reservation or condition expressly for the benefit of Aboriginal people:  NT Act, s 23C(1), s 23E.

124    For the purposes of s 23B(2)(a), it was submitted that the act of granting the lease was valid because it was a valid “intermediate period act” within the meaning of s 232A(2) of the NT Act. It provides that an act is an “intermediate period act” if:

(a)    the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 when native title existed in relation to particular land or waters; and

(b)    the act did not consist of the making, amendment or repeal of legislation, other than legislation that affects the native title by:

(i)    creating a freehold estate, lease or licence over the land or waters; or

(ii)    containing, making or conferring a reservation, proclamation or dedication under which the whole or part of the land or waters is to be used for a particular purpose; and

(c)    the act was invalid to any extent because of Division 3 of Part 2 (disregarding section 24EBA) or for any other reason, but it would have been valid to that extent if the native title did not exist; and

(d)    the act was not a past act (see section 228); and

(e)    at any time before the act was done, either:

(i)    a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act; or

(ii)    a public work was constructed or established on any of the land or waters affected by the act; and

(f)    the grant, or the construction or establishment, mentioned in paragraph (e) was valid (including because of any provision of this Act).

125    For the purposes of s 232A(1)(e)(ii) and (f) I am satisfied that a public work (in the nature of a building or a road) existed on a part of the land that is alleged to have later become the subject of a lease and that the act of constructing that work commenced before 31 October 1975 and so was valid.

126    It was submitted that if the act of granting the lease was an “intermediate period act” attributable to the State, the act would be validated by s 32A of the State NT Act. If the grant of the lease was not a “previous exclusive possession act”, it was submitted that complete extinguishment of the applicant’s native title would nonetheless follow by virtue of s 36B of the State NT Act:  see NT Act, s 23C, State NT Act, s 36A.

127    The submissions of the parties focussed principally on whether a lease, as defined, was granted or vested at any time before 23 December 1996. In the result, it is unnecessary to determine whether the statutory routes to extinguishment asserted by the Council would apply in the manner contended for. That is because I am not satisfied that a lease (as defined in s 242 of the NT Act) was granted or vested at any time before 23 December 1996.

The “lease definition”

128    The word “lease” is defined in s 242 of the NT Act to include:

 (a)    a lease enforceable in equity; or

 (b)    a contract that contains a statement to the effect that it is a lease; or

(c)    anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

129    A “community purposes lease” is defined in s 249A of NT Act as follows:

249A Community purposes lease

A community purposes lease is a lease that:

(a)    permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

(b)    contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

130    As can be seen, the definition in s 249A encompasses the expanded meaning of the word “lease”. The two must be read together.

131    The question formulated by the parties refers in the alternative to a lease conferring exclusive possession and to a community purpose lease.

132    The question of whether there existed at the relevant time a lease conferring a right of exclusive possession over the land within the meaning of s 23B(2)(c)(viii) of the NT Act may be shortly disposed of. Quite apart from the evidentiary difficulties establishing the existence of a lease at the relevant time, the evidence does not establish the existence of a lease conferring upon the Club a right of exclusive possession to the land. In oral submissions, the Council acknowledged the evidentiary difficulties affecting this part of its case.

133    The issue then is whether a “community purposes lease” as required by s 23B(2)(c)(vi) was granted or vested at any time before 23 December 1996. For the purposes of what follows, I will assume (without deciding) that a lease may fulfil the description of a community purposes lease even if it does not contain a term conferring a right of exclusive possession on the lessee.

134    It is common ground that the grant of a community purposes lease between 1 January 1994 and 23 December 1996 (if it occurred) would be an act that would extinguish native title, provided that the lease did not contain a reservation for the benefit of Aboriginal people. The provisions providing for extinguishment are contained in ss 22A, 22B, 22F, 23B, 23C(3) and 23E of the NT Act and ss 32A, 36B and 36F of the State NT Act. The primary contention is that the grant of such a lease is a “previous exclusive possession act” within the meaning of s 23B, which was confirmed by s 36F of the State NT Act.

135    Section 232A(2)(3)(ii) of the NT Act requires there be a public work situated on any part of the land that is covered by the lease before the lease was granted. I am satisfied that a public work (in the nature of a building or road) existed on a part of the land that is alleged to have later become the subject of a lease.

136    For the applicant, it was submitted that the Council could not grant a lease (and no interest in land in the nature of a lease could vest) except by observing the requirements for a lease that is valid in law. It was submitted that s 28 and s 29(1) Law of Property Act 1936 (SA) and s 116 of the Real Property Act together had the effect that a lease must be constituted by a Deed. It was submitted that any lease must be shown to have been executed by the Council and the Club in accordance with s 41 of the Law of Property Act, namely by the affixation of their respective seals. The Council denies that the statutory formalities apply, including because (it was submitted) the asserted lease did not convey any interest in the land.

137    Where the legal requirements for the creation of a lease have not been fulfilled, a lease enforceable in equity may nonetheless come into existence. That may occur if the circumstances are such that there was an agreement for a lease (including an undocumented agreement) that was specifically enforceable and in respect of which equitable remedies would be available:  Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 26. In appropriate cases, equity “considers as done what ought to be done”:  Walsh v Lonsdale (1882) 21 Ch D 9; Progressive Mailing House at 27.

138    The requirements for an equitable lease are otherwise conveniently summarised by Burley J in Redder Than Red Tomato Co Pty Ltd v AB & SM Rawlings Pty Ltd [1999] SASC 30 as follows:

74    The plaintiff's primary argument was that by 12 November 1996 an equitable lease had arisen in the sense that there was an agreement for a lease which could be specifically enforced:  Walsh v Lonsdale (1882) 21 ChD 9. I was referred to ‘Australian Real Property Law’, Bradbrook, MacCallum and Moore at paragraph 12.07. The learned authors there state:-

‘A contract for a lease enforceable under the rule in Walsh v Lonsdale is usually referred to as an ‘agreement for a lease’. The rule will not apply unless the agreement is specifically enforceable at equity and constitutes a binding contract under normal common law principles. Thus, the parties must have reached final agreement on the essential details of the lease, viz the property to be leased, the rent payable, the names of the parties and the commencement and maximum duration of the term. The other terms of the agreement do not have to be specified in detail, however, and where necessary will be implied by the courts. The major difficulty confronting the court is to determine whether the contract is intended to be final. Before the contract will be enforced as an agreement for a lease, the court must be of the opinion that the execution of the future lease contemplated by the contract will merely formally embody the terms of the contract already agreed upon. If the court forms the opinion that certain essential features of the agreement are still open to negotiation prior to the signing of the lease, the contract for a lease will be held to be unenforceable at both law and equity.’

75    It is clear from this passage and the cases cited in support of the propositions contained therein, that there must be a contract between the parties established ‘under normal common law principles’.  …

139    I consider paragraph (a) of the “lease” definition in s 242 of the NT Act to encompass those principles. The definition contemplates an oral agreement for a lease that the parties intend to be legally binding upon them, whether or not the formalities for a valid transfer of a legal interest in the land have not been satisfied. It contemplates a case in which a party to an agreement for a lease may be required under equitable principles to do what ought to be done to give legal effect to their agreement:  Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at [10]; Walsh v Lonsdale. In my view, the definition of s 242 of the NT Act may also contemplate a situation in which one party would be required in equity to grant a lease in the absence of a contract if the circumstances were such that a lease has been promised and it would be unconscionable for the promisor to resile from that promise:  Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

140    There is no reason in principle to conclude that the equitable principles to which I have referred should not also apply to the formation of a “community purposes lease” as defined in s 249A of the NT Act. Construed in context, the expression “granting or vesting” in s 23B of the NT Act must be given a broad meaning so as to accommodate the range of circumstances in which a “lease enforceable in equity” (within the meaning of s 242 of the NT Act) may come into existence. The State law under which the Council might be authorised to grant a community purposes lease does not evince an intention that equitable principles ought not apply to the formation of such a lease.

141    In circumstances where the formal requirements for a lease at law are not present, it would remain necessary to show, at the very least, that there was a contract for a lease, (as explained by Burley J in Redder than Red) being specifically enforceable and (in this case) coming into existence before 23 December 1996. It will be sufficient to prove the existence of an agreement (in this case an agreement for a community purposes lease) to which the parties intended to be legally bound. Neither the evidence nor the submissions suggest any basis for applying the principles stated in Waltons Stores in the absence of a contract.

142    As it happens, a good deal of the hearing was devoted to an enquiry as to whether and when a documented lease was formally executed. That reflects the emphasis placed by the Council’s witnesses on the existence, content and execution of the asserted document.

Evidentiary issues

143    As Beaumont and von Doussa JJ said in Western Australia v Ward (2000) 99 FCR 316 (Ward FC) at [117], the ultimate burden rests on the applicant to show that extinguishment of native title rights and interests has not occurred:  see also Coe v Commonwealth of Australia (The Wiradjuri Claim) [1993] HCA 42; 118 ALR 193 (Mason CJ). However, in a case of extinguishment said to arise by an executive act (such as the present), the evidentiary burden to prove the fact and content of the executive act relied upon rests on the party asserting it:  Ward FC at [120]. If the Council and the Club discharge the evidentiary burden, it will be for the applicant to show on the balance of probabilities that extinguishment of native title has not occurred.

144    Neither the Council nor the Club has produced a written lease executed by them applicable to any period prior to 23 December 1996. Nor has an unexecuted copy of any such document been produced, nor have any drafts. Neither organisation has been able to locate a copy of any such documents among their records. Both the existence and the contents of the document are in issue.

145    Section 48 of the Evidence Act 1995 (Cth) describes the manner in which evidence of the contents of a document may be adduced. It relevantly provides:

48 Proof of contents of documents

(1)    A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

(a)    adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

(b)    tendering a document that:

(i)    is or purports to be a copy of the document in question; and

(ii)    has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c)    if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words;

…

(e)    tendering a document that:

(i)    forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii)    is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

(f)    if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:

(i)    by the Government Printer or by the government or official printer of a State or Territory; or

(ii)    by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or

(iii)    by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

(2)    Subsection (1) applies to a document in question whether the document in question is available to the party or not.

(3)    If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used:

(a)    in respect of the party’s case against the other party who made the admission concerned; or

(b)    in respect of the other party’s case against the party who adduced the evidence in that way.

(4)    A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:

(a)    tendering a document that is a copy of, or an extract from or summary of, the document in question; or

(b)    adducing from a witness evidence of the contents of the document in question.

146    The Council did not adduce evidence meeting any one of the descriptions in s 48(1).

147    As can be seen, s 48 permits a party to adduce evidence from a witness as to the contents of a document in question, only if the existence and content of the document are not in issue in the proceeding. Notwithstanding those observations, the applicant raised no objection to the admissibility of testimony going to the existence and content of the asserted document and sought no ruling limiting the use to which that evidence should be put. In the result, it has been unnecessary to make critical findings as to the content of the asserted document, such that the difficulties that might have been presented by s 48 of the Evidence Act on that issue do not require resolution. Those difficulties might have been compounded by the absence of any formal objection on the applicant’s part to the Council’s affidavits being read.

148    Before proceeding further it is necessary to summarise the order in which the parties filed affidavits in advance of the hearing and the matters that came to light in that process.

149    The power of the Council to grant a lease in respect of any portion of land constituting a parkland or reserve is conditioned by s 457 of the LG Act. It provides:

Power to let grounds vested in council

(1)    The council may grant a lease of any portion of the park lands or of any ornamental grounds or reserve for any term not exceeding 21 years, to be used for the purpose of sports, games, agricultural shows, or public recreations or any community facilities, and may from time to time renew any such lease for a further term not exceeding 21 years.

(2)    No lease of any park lands may comprise land exceeding six hectares in area unless the Minister has approved in writing of a lease comprising a greater area of land.

(3)    Every such lease will be granted to two or more persons or to an incorporated body, on such terms as to the erection of booths, pavilions, and other structures on the premises, admission of the public to the premises or to any part of the premises, and generally subject to such rents, covenants, provisions and reservations as the council thinks fit.

(4)    A lease cannot be granted under this section for a term exceeding three months unless at a meeting of the electors (held in accordance with Division IV of Part V) a resolution has been passed in favour of a lease being granted of the land in question under the powers conferred by this section.

150    The lease upon which the Club and the Council relied was said to be a lease granted for the purpose of sports, games, public recreations or community facilities. It is said to cover the whole of the area of the golf course (being an area of 31 hectares) and to have been for a term of 10 years. It is necessary for the Council to show that the Minister gave written approval for the grant of such a lease in accordance with s 457(2) of the LG Act and that a meeting of relevant electors passed a resolution in favour of the lease being granted, in accordance with s 457(4).

151    Evidence going to the existence and content of a lease was filed in three stages. The Council filed affidavits in which evidence concerning the creation of the document and the date of its execution was given. That included the evidence of Mr Lane and Mr Rumbelow, which is said to have been based in part on their recollections and in part by reference to the documents available to them at the time that their affidavits were sworn. Those documents did not demonstrate that the preconditions for the grant of a lease under s 457(1) of the LG Act had been fulfilled.

152    Subsequently, the State filed the affidavit of Marc David Thomas, an assistant anthropologist employed by the Crown Solicitor’s Office. Mr Thomas deposed to the search and retrieval of documents from State archives which were not known to the Council’s deponents at the time that their first affidavits were filed. The Council then filed further evidence of Mr Lane and Mr Rumbelow, having the benefit of the documents retrieved by Mr Thomas as the result of his searches.

153    As has been mentioned, none of the deponents was cross-examined. However the content of the affidavits, considered in the context just described, indicates that the Council’s witnesses do not have reliable actual recollections of critical events. That affects the weight to be afforded the evidence of the witnesses, particularly where it is expressed in conjectural terms.

154    The findings expressed below may be understood to be based on the documentary evidence adduced by the Council and the State and upon the unchallenged testimony of Mr Lane and Mr Rumbelow, such as it was.

Was the Council authorised to grant a lease?

155    At a Council meeting in December 1993, the District Clerk sought and obtained the Council’s endorsement to proceed with “its programme of converting ‘Controlling Authorities’ to leases” (original emphasis). The District Clerk foreshadowed that he would seek elector approval for the grant of the leases at an upcoming electors meeting in February 1994.

156    On 14 February 1994 ratepayers of the Council ward incorporating Streaky Bay carried a resolution in favour of the Council granting a lease to the Club in respect of land described in a way that encompassed the whole of the land presently in issue.

157    On 18 February 1994 the Council passed a motion relevantly expressed in the following terms:

… following agreement of the electors of Flinders Ward received at the Electors Meeting held on 14th February 1994, Council lease the designated land to the Community/Sporting Bodies listed below, for a period of ten (10) years at a peppercorn lease:

…

158    The Club was then listed among six other community organisations, including the “Streaky Bay Scouts and Guides” and the “Streaky Bay Sporting Club Inc”. The lease referrable to the Club was in respect of land described in the question now before the Court.

159    By a letter dated 28 April 1994, Mr Lane, in his capacity as the District Clerk for the Council sought the approval of the Minister for the grant of a lease to the Club in respect of the land for the purposes of “golf course and recreational activities” for a term of 10 years. The letter does not refer to any attachment. The Minister gave written approval for the grant of a 10 year lease to the Club by letter dated 2 June 1994.

160    I am satisfied that the resolution passed at the meeting of electors and the Minister’s later approval together fulfilled the statutory preconditions for the Council to grant a lease to the Club of a kind referred to in s 457(1) and for a period of 10 years. Whether Council did so is another question.

Current and previous leases

161    There is presently in force a lease between the Council and the Club expressed to be for a five year term ending in 2025. Also in evidence are two prior written leases, one for a five year term ending in December 2019 and one for a five year term ending in December 2014.

162    Each of those leases may be properly described as a community purposes lease within the meaning of s 249A of the NT Act. Each of them has been executed by the parties in a manner that appears to comply with the requirements of the Law of Property Act.

Was a written lease executed before 23 December 1996?

163    It is convenient to first ask whether or not a written lease was executed in any manner at any time before 23 December 1996, as was asserted in the Council’s submissions.

164    As has been mentioned the Club has occupied the land since its incorporation in 1975, and for decades earlier as an unincorporated body of members. Prior to the grant of any lease, the Club may be understood to have occupied the land pursuant to a bare licence revocable at the Council’s will. Also as mentioned, from 1975, the management of the land was the responsibility of the Management Committee (a controlling body for the purposes of s 666C of the LG Act as then in force), which included persons who were members of the Club. Under the controlling body model, the Council was liable for the acts and omissions of the Management Committee including in respect of the occupation and management of the land. That model continued under s 199 of the LGA Act upon the repeal of s 666C in 1988.

165    It is to be recalled that at times in the Club’s history, the game on the course had been organised in a way that had players teeing off on a fairway that straddled a public road such that the balls would be driven over any passing traffic. The potential for mishap is obvious.

166    In 1993 Mr Lane was the District Clerk of the Council. He recalls that in 1993 a proposal to move to a “lease model” rather than a “controlling body model” was raised for the purposes of reducing the Council’s exposure to liability for any personal injury that might arise on or in relation to land under its responsibility. Mr Rumbelow’s evidence is to similar effect. He states:

I remember that in or around1993 it became important for legal reasons to move away from controlling authorities. My memory is that the insurer for local government in South Australia, the Local Government Association (LGA) Mutual Liability Scheme (MLS) was telling councils that they needed to move to leases to better manage liability for council facilities which were operated or occupied by third parties.

167    Mr Rumbelow goes on to state that the purpose for moving community organisations to leases was to:

… create a clear separation of responsibility and liability. The clubs and organisations could then manage the facilities which they used as they saw fit and were responsible for any injuries.

168    I am satisfied that that the primary purpose (indeed the only apparent purpose) for proposing the entry into leases between the Council and community organisations was to reduce the Council’s exposure to liability for injury arising by virtue of its status as occupier (including by the agency of the Management Committee) of the land. The proposal for leases affected a number of other community organisations occupying land then under the Council’s control.

169    The earliest evidence of the Council raising the subject of a lease with the Club is a letter from Mr Lane dated 14 January 1994. It was sent and received prior to the electors’ meeting and prior to the Council obtaining the Minister’s approval for the grant of a lease. The letter “proposed to change the tenure” of the area currently occupied by the Club. It referred to amendments to the LG Act introduced in March 1989 concerning the concept of “area management”. The letter stated that a lease would ensure that sporting clubs would retain their “autonomy” and that the essential component of the lease arrangement would be a “peppercorn lease”, payable if demanded. The letter stated that a copy of the proposed lease was attached. The attachment (assuming that there was one) is not in evidence.

170    By letter dated 11 February 1994, Mr Rumbelow (in his capacity as Secretary of the Club) to Mr Lane (as District Clerk) stated:

Re Leasing Agreement

At a Meeting held by the Committee of the Streaky Bay Golf Club on 9.2.94 it was agreed that the Club accept your [sic] Council’s proposal of ‘peppercorn lease’ of the area currently being occupied as a Golf Course.

The Club will therefore await your direction.

171    The letters passing between the Council and the Club were not referred to by Mr Lane and Mr Rumbelow when they swore their first affidavits. Neither of them deposed to having any recollection of a draft lease having passed between the Council and Club in January 1994. Mr Rumbelow gave no evidence as to what was said at any meeting of the Club’s “Committee” referred to in the letter of 11 February 1994.

172    Whilst I am prepared to accept that a document was attached to the Council’s letter, I do not accept that the document was a lease, as opposed to an in-principle proposal for a lease on terms that were yet to be discussed. The letter cannot be regarded as an offer for a lease that was capable of acceptance, the Council at that time having no authority to grant a lease to the Club at all. Moreover, the letter identifies the peppercorn rent as the essential component of the lease, and yet no mention is made of the Council’s actual purpose for moving to a lease-based model. As will be seen that purpose was to be achieved by imposing on the lessees a requirement to obtain and maintain public liability insurance at their own expense as a term of their continued occupation of the land. That was a legally and commercially significant change to the relations previously existing between the Council and the Club. The expenses associated with the entry into a lease on such terms would clearly exceed 10 cents per annum. I do not consider the Club’s letter of 11 February 1994 to evidence a willingness to accept any such proposal.

173    Moreover, the evidence of Mr Lane and Mr Rumbelow is that the Council did not go about drafting written leases until after the Council had passed the resolution in February 1994 referred to above. In the circumstances, I do not consider that the document attached to the Council’s letter to the Club in January 1994 was a document that ever governed the legal relationship between the Council and the Club in respect of any part of the land. The response from the Club to the Council is evidence of an in-principle preparedness on the part of the Club to negotiate a lease at nominal rent, but establishes nothing more than that.

174    Mr Lane recalls that there was substantial community interest in the phasing out of controlling authorities and that “people wanted to know if they, and their sporting club(s), would be better or worse off under the new system.” The community interest is not surprising, given the significance of the reallocation of risk that was sought by the Council. Mr Lane’s evidence about community concerns was expressed at a level of generality and did not exclude the Club. It is reasonable to infer that the Club was among the community organisations wanting to know whether a lease arrangement would be beneficial or not.

175    The evidence demonstrates that the Council intended to have seven written leases prepared and offered to the affected community organisations, including the Club. However, Mr Lane’s evidence as to how and by whom the leases were prepared is ambiguous. He states:

After the Council resolved to enter into the seven leases, I or one of my staff either prepared the leases or had them prepared. I cannot now recall whether solicitors were instructed to prepare the leases, or whether the LGA or the Department prepared the leases.

176    As to the execution of the lease, Mr Lane states:

Each of the seven organisations executed their lease. As best I can recall, none of them proposed any amendments to their lease.

I cannot recall who signed the Golf Club lease for the Golf Club. The ordinary practice would have been that the President would have signed.

The Council then executed each lease. I cannot recall whether I was one of the signatories for the Council, but I expect that as District Clerk/CEO I was, given the requirement of the Local Government Act that affixation of a council seal be executed or signed by the Mayor or Chairman and the Clerk/CEO.

177    Mr Rumbelow’s evidence adds no more certainty to the enquiry as to when a lease with the Club was executed. He states:

I cannot recall when the Golf Club executed its lease, nor who signed it. I am almost certain it happened, particularly given that the then District Clerk David Lane and myself were heavily into the Golf Club and we were also responsible for carrying out the Council’s resolution to have the clubs sign up to their leases.

Although I do not know whether the Council executed the 1994 Golf Club lease, in my experience it would have done so. It is almost unthinkable that a programme of this level of importance, pushed along by the MLS, would have resulted in the leases being prepared by or on behalf of the Council but not executed by the Council.

178    I observe that neither Mr Lane nor Mr Rumbelow purport to have any actual recollection of a written lease being executed by the Club or by the Council at any time before 23 December 1996.

179    As mentioned, the documents annexed to the affidavit of Mr Thomas were not available to Mr Rumbelow and Mr Lane at the time that they swore their first affidavits. They bear on the question of whether (and if so when) a lease was ever offered and, if so, whether its terms were accepted and executed. Among the documents is a letter bearing the date 14 September 1994 from Mr Lane as District Clerk of the Council to Mr Rumbelow as Secretary of the Club. It states:

I am writing on behalf of the District Council of Streaky Bay to forward for your organisations signature two copies of the previously discussed agreement.

It would be appreciated if the two seal holders of your organisation could sign and apply the seal to each copy and return them to Council for signature and stamping.

…

180    The letter located by Mr Thomas has no document attached to it. For the purposes of what follows I will assume that the letter was sent and received on or around 14 September 1994.

181    No party has produced any written response to the letter. Nor is there any evidence of any oral response.

182    The next record relevant to the execution of a lease is a minute of a meeting of the Council held on 18 April 1997. It records the Council carrying a motion expressed as follows:

.. that the Acting District Clerk and the Chairman be authorised to apply the Council Seal and sign the lease document for the Kiwanis Club of Streaky Bay and the Streaky Bay Golf Club.

183    As it turns out, the person who was authorised by that resolution to apply the Council’s seal to the lease was Mr Rumbelow (as acting District Clerk), and not Mr Lane. If Mr Rumbelow signed a lease on behalf of the Council, as he was authorised to do, clearly he has no recollection of doing so.

184    The Council has adduced a copy of an executed lease in favour of the Streaky Bay Sporting Club Inc in 1997 (the Sporting Club Lease). The Council invites the Court to infer that a lease was executed by the Council and the Club in the same terms as that contained in the Sporting Club Lease. Clause 11.5(a) of that lease is titled “Public Risk Insurance”. It states:

The Lessee shall forthwith take out and thereafter maintain in respect of the said premises during the term of this lease a public risk insurance policy in the joint names of the Lessee and the Lessor with such extensions as the Lessor may require in respect of injury or loss occurring in or about or in relation to the said premises howsoever for a minimum sum of five million dollars in respect of each and every claim made on the Lessee or the Lessor.

185    For the purposes of what follows I am prepared to assume that any lease executed by the Council and the Club did contain such a term.

186    The next relevant record is a letter from the Council to the Streaky Bay Sporting Club Inc dated 9 February 2009. Its opening sentence is to the effect that the Sporting Club Lease had expired on 30 June 2004. The letter enclosed a copy of the Sporting Club Lease executed by the Streaky Bay Sporting Club Inc in 1997. The Council sought comments on the expired lease before it prepared a “new document”.

187    The Sporting Club Lease was executed by the parties to it in July and August 1997, that is, more than three years after the Minister first approved the grant of a lease in June 1994. In light of that evidence, I am not satisfied that the transition from the controlling authorities model to the lease model proceeded with any sense of haste, notwithstanding the asserted importance of the transition.

188    The minute of the Council’s meeting of 18 April 1997 plainly supports the inference that no lease had been executed by the Council in favour of the Club before that date.

189    On 19 March 2010, the Council wrote to the Club in the following terms:

Inspection of Council records indicates that the Streaky Bay Golf Club Incorporated Lease expired on the 30.06.2004.

I apologise for the delay in forwarding the new lease documents but as the leases had expired and there was no extension period new leases had to be drawn up through our lawyers.

Accordingly, Council encloses a copy of the lease document and the disclosure statement. Can you please sign both copies and return to Council by the 18th April 2010. Once Council has received these documents, we will forward a copy for your retention.

Council also request you enclose a copy of your certificates of currency and public liability insurance policies.

If you have any questions please do not hesitate to contact me.

190    The Council invites the Court to infer from that letter that there existed a written lease expressed to be for a 10 year term commencing on 1 July 1994. Even if admissible under s 48(1)(e)(ii) of the Evidence Act (which is doubtful), the letter of 10 March 2010 does not support an inference that any such document (if it existed) was executed on the commencement date or at any time prior to 23 December 1996. Clearly no written lease had been executed on 30 June 1994 (the letter of 14 September 1994 is proof of that), nor had a written lease been executed before 18 April 1997, as evidenced by the minutes of the Council’s meeting on that day.

191    Unlike the letter sent to the Streaky Bay Sporting Club Inc in the previous year, the Council’s letter to the Club of 10 March 2010 did not purport to enclose any copy of the expired lease referred to in it, nor did the Council seek the Club’s comments by reference to it. The letter simply asserts the existence of the lease more than five years after its expiry date. The letter does not establish when any such lease was executed.

192    I have not overlooked Mr Lane’s unchallenged evidence that “each of the seven organisations executed their lease” and that “the Council then executed each lease”. That may be so. But Mr Lane’s evidence is uninformative as to when either of those events occurred, and he cannot depose to an actual recollection of signing the lease or observing any other person signing it.

193    Viewed as a whole, the evidence is insufficient to prove to the requisite standard that a written lease was executed in respect of the land occupied by the Club at any time before 23 December 1996.

Was an agreement for a lease otherwise formed before 23 December 1996?

194    Neither Mr Lane nor Mr Rumbelow asserted that the Club and the Council intended to be legally bound in an oral or undocumented agreement for a lease unless and until the terms of a lease were embodied in a formal document and duly executed by both parties. The topic is not dealt with expressly in their affidavits. The focus of the evidence is on the existence of a formally executed document embodying the terms of the lease.

195    The evidence does not identify the persons who might have been authorised or held out as authorised to bind either entity in an undocumented agreement. Nor does the evidence demonstrate that an oral contract for a lease was entered into by persons having the authority to create legal relations of that kind on behalf of either the Club or the Council.

196    Contrary to the Council’s submission, the continued occupation of the land by the Club is not evidence of the Club’s acceptance of the terms of the lease offered by the Council’s letter of 14 September 1994. The Club’s occupation of the land is consistent with the continuation of the licence that had legally justified its occupation of the land since its incorporation in 1975, whilst the terms of a proposed lease were considered by the Club through its decision making organs, or not considered at all for some time. The issue is simply not explored in the evidence.

197    In oral argument it was submitted that the lease was formed in or around September 1994, that the parties intended to execute the document embodying its terms, but that they “did not get around to it”. Whether that is the explanation for there being no executed document before 23 December 1996 is a question of fact to be decided on the basis of the evidence as a whole. As has been said, neither Mr Lane nor Mr Rumbelow suggested that there was agreement on the part of the Club (whether by its members or office holders) to any terms that were offered in September 1994 and there is no evidence that the Club expressly communicated acceptance of the Council’s offer. As I have said, the Club’s continued occupation of the land cannot be understood as conduct evidencing the exercise of a right of occupancy under a lease. There is otherwise no evidence that the Club took out a public liability insurance policy so as to evidence performance of a critical obligation under the lease. The evidence is silent as to when the Management Committee responsible for the golf course was dissolved so as to evidence a transfer of effective control of the land from the Council (through the agency of the Management Committee) to the Club at the relevant time. There is no evidence that the Council’s insurer altered its affairs to reflect any such change of tenure before 23 December 1996. And there is no evidence that there was ever a demand for payment of the peppercorn rent.

198    The suggestion that the parties were lax in attending to the formalities of a lease agreed between them cannot be reconciled with Mr Lane’s evidence that:

This was an important programme at the time. I, and the Council, wanted to ensure that the I’s were dotted and the T’s were crossed.

199    Accepting that to be the case, it is more likely than not that the Council attended to the execution of the lease when the Club communicated acceptance of its terms. In all of the circumstances, I am not satisfied that that occurred before the relevant date.

200    Considered as a whole, the evidence is insufficient to support a conclusion that there existed a specifically enforceable agreement for a lease, or a lease that was otherwise enforceable in equity, at any time before 23 December 1996.

No backdated grant

201    In light of s 48 of the Evidence Act, there is a real question as to whether the Council has established that there was a documented lease, the content of which included a 10 year term expressed to commence on 1 July 1994. For the reasons that follow, it is necessary to express a concluded view on the question.

202    I will proceed on the basis that a lease was executed after 23 December 1996 and that the lease was expressed to be for a 10 year period commencing before the date of its execution, that is, on 1 July 1994. Assuming that to be the case, it does not follow that a lease was granted or vested on or before 23 December 1996 so as to constitute a previous exclusive possession act for the purposes of the NT Act.

203    In Margarula Mansfield J considered the application of the NT Act to sub-leases that were executed and registered after 23 December 1996 but with commencement dates backdated so as to commence before that time (at [233] – [242]). His Honour determined that the relevant date for consideration was not the date of registration but the date of commencement of each sub-lease. His Honour said that the question of whether the grant of the sub-lease could be said to “take place” on a retrospective commencement date gave rise to difficulties. His Honour resolved those difficulties by construing the provisions of the NT Act concerning the consequences of previous exclusive possession acts, enacted after the High Court delivered judgment in Wik Peoples v Queensland (1996) 187 CLR 1.

204    His Honour said:

238    It is necessary briefly to examine the history of the concept of a ‘PEP act’ to better understand those difficulties. The ’PEP act’ concept was introduced by the Native Title Amendment Act 1998 (Cth). The ‘cut-off’ date of 23 December 1996 was selected because it was the date that Wik was decided by the High Court. The Wik decision, coming four years after Mabo (No 2), decided that native title might not be extinguished by the grant of a pastoral lease. The Wik decision was perceived by the government to have created uncertainty amongst the holders of pastoral leases and other forms of proprietary interests as to the security of their rights over the relevant land. As was explained in the Second Reading Speech of 4 September 1997:

[F]rustrations, uncertainties and tensions [about native title] were intensified following the High Court’s Wik decision of 23 December 1996 which, contrary to general assumptions about the law, found that pastoral leases do not necessarily extinguish all native title.

In responding to the Wik decision, the government is determined to reduce these uncertainties ...

... [T]his government respects, and will continue to respect, the Mabo and Wik decisions and the native title rights of indigenous Australians. But it is in the interests of all Australians to be clear and certain about where extinguishment has already occurred. The resolution of native title issues will be made even more difficult by unrealistic expectations on the part of claimants or by unnecessary uncertainty for others with interests in land.

Accordingly, the bill provides that certain ‘previous exclusive possession acts’ have extinguished native title. They include the grant of a freehold estate, leases for residential, commercial or community purposes and interests included in a schedule to the act. The bill provides that states and territories are able to confirm that such grants extinguish native title.’

Thus, in essence, the ‘PEP act’ concept was introduced to confirm that particular pre-Wik acts had extinguished native title, thus enhancing certainty for and easing the perceived frustrations and tensions of holders of proprietary interests that were granted pre-Wik, that the holders had previously understood had extinguished native title, but in the face of Wik, were now uncertain about their effect.

239    In keeping with that rationale, an act occurring after 23 December 1996 was not to be a PEP act. Instead, it must be dealt with under the ‘future act’ regime. The holders of any proprietary interest granted after 23 December 1996 could not say that they had previously felt confident about the effect of their interest upon native title, but in the wake of Wik, were now uncertain as to that effect. Wik had been decided before their interest was granted, so any uncertainty they felt was, as it were, brought upon themselves, rather than thrust upon them by the effects of the High Court decision in Wik.

205    Returning to the sub-leases in issue in that case, Mansfield J said (at [240]):

It follows that it would be inimical to the PEP act scheme for a grantee of a proprietary interest to obtain the benefit of ‘PEP act’ status where the interest in question had in fact been granted after the Wik decision, but with retrospective effect. At the time the parties decided to create the interest, the Wik decision had been handed down. Generally, as has been observed, parties in such circumstances would not be entitled to avail themselves of the benefit of the PEP act scheme. There is no policy reason why the mere fixing of a retrospective date of operation of the interest should mean that the holder of the proprietary interest becomes entitled to that benefit.

206    Mansfield J concluded that the date that the grant took place was the date upon which the interest was agreed to be granted, in that case being the date of execution of the sub-lease instrument and not the retrospective commencement date.

207    The same approach should be adopted in the present case.

208    For the reasons already given, I have found that there did not exist an agreement for the grant of the lease (in the relevant sense) at any time prior to 23 December 1996. Notwithstanding the stated commencement date, the relevant grant took place after that date. The grant of any backdated lease after 23 December 1996 was not a previous exclusive possession act for the purposes of the NT Act and so did not operate to extinguish the applicant’s native title in relation to any part of the land.

209    The answer to the Lease question is no.

Associate:

Dated:    17 December 2020

SCHEDULE OF PARTIES