Federal Court of Australia

Coffs Harbour and District Local Aboriginal Land Council v Attorney-General of New South Wales [2025] FCA 1492

ORDERS

THE COURT ORDERS THAT:

1.    Native title does not exist in relation to the area of land and waters comprised in and known as Lot 494 in Deposited Plan 755557 in the State of New South Wales.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

BENNETT J:

1    On 27 February 2024, the Applicant, the Coffs Harbour & District Local Aboriginal Land Council (the Applicant), made an application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (the NTA). The determination sought is to the effect that there is no native title in the land described as Lot 494 in Deposited Plan 755557 (the Application Area). The Application Area is approximately 2.31 hectares.

2    The Applicant is the registered proprietor of the Application Area, and is a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). Thus the Applicant is a person who holds a non-native title interest in relation to “the whole of those lands” for the purposes of s 61(1) of the NTA.

3    The First Respondent is the Attorney-General of New South Wales (the State) and the Second Respondent is NTSCORP Limited (NTSCORP).

4    A determination such as the present can be made without a hearing if it is unopposed (NTA s 86G(1)). Initially in this matter, the First and Second Respondent each notified the Court that it did not consent to, or oppose, orders in, or consistent with, the terms of the orders sought by the Applicant. There were, however, some differences in the submissions of the parties as to the basis upon which the orders ought to be made. Those differences caused the Court to seek supplementary submissions from the parties as to the legal basis for the declaration. By those submissions, NTSCORP notified the Court and the other parties that it now opposed the determination sought. Thus, this application was no longer unopposed for the purposes of s 86G. A hearing was held on 13 August 2025, and all parties made submissions in support of their respective positions. Those submissions developed new concerns as to the declaration sought, and additional written submissions and evidence were filed, including the provision of additional historical information.

5    An order of the kind sought in this application determines permanently that there are no native title rights and interests in the Application Area. I have borne the gravity of such a determination, and its permanency, carefully in mind in analysing the present application. For the reasons set out in detail below, I have determined that it is appropriate to make the declaration sought.

RELEVANT LEGAL PRINCIPLES

6    An application may be made to this Court for a determination of native title in relation to an area for which there is no approved determination of native title (NTA s 13(1)(a)). The Court has jurisdiction under s 81 of the NTA to hear the application because it “relate[s] to native title”.

7    Section 61(1) of the NTA identifies those who may bring an application for a determination of native title of this kind. One such category is a person who holds a “non-native title interest” in relation to the whole of the area in relation to which the determination is sought.

8    An “interest” is defined in s 253 of the NTA, and includes a “legal or equitable estate or interest in the land or waters”.

9    There are relevantly two categories of application, defined in s 253 of the NTA. A “claimant application” is defined to mean “a native title determination application that a native title claim group has authorised to be made”. Native title determination applications that are not claimant applications are “non-claimant applications”. The Applicant is the registered proprietor of the Application Area and so has standing to make a non-claimant application.

10    Once filed in the Court, an application under s 61 of the NTA must be given to the Registrar of Native Title (Registrar) (s 63), who must give notice of the application in accordance with s 66. Notice must be given to a range of bodies as specified in s 66(3). Required contents of the notice are specified in s 66(10). At the relevant time for this determination, the Native Title (Notices) Determination 2011 (No. 1) (Cth) (the Notices Determination) specified the advertising requirements of such notices (see s 66(3)(d)).

11    Section 225 of the NTA confers power by which a determination of native title may be made in the following terms:

225     Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)         who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)         the nature and extent of the native title rights and interests in relation to the determination area; and

(c)         the nature and extent of any other interests in relation to the determination area; and

(d)         the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)         to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

12    Because s 225 uses the phrase “whether or not native title exists” it authorises a determination that native title exists, and a determination that it does not exist (Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 (Mace) at [40] (Jagot, Griffiths and Mortimer JJ)). It is therefore not necessary to determine the matters at paragraphs (a)–(e) of s 225.

13    The Full Court in Mace made clear that the question for the Court remains the same whether the application is unopposed or contested: “has the applicant discharged its burden of proof that no native title exists in the claim area?” (at [44]). The standard is the balance of probabilities (at [64]). All such issues turn on their own facts. Of particular significance in a non-claimant application for a determination of this kind are the observations of the Full Court in Mace at [61]:

In a non-claimant application, the applicant seeks a negative determination in rem. The potential holders of native title may be unknown to the non-claimant applicant, or they may be known. The composition and constitution of any native title holding group may, in fact, be unknown even to all potential claim group members themselves. The history of expulsion, exclusion and removal of Aboriginal and Torres Strait Islander people from their country has a real and practical legacy in how people can now come together for the purposes of identifying a claim group with a continuing connection arising from traditional law and custom to particular country. Again, all will depend on the circumstances, but that is why resort to maxims, and the borrowing of the application of maxims from adversarial contexts far removed from native title may not, with great respect, be the most useful approach.

14    The principles that can be gleaned from Mace and Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1329 (Worimi) (Robertson J) when dealing with non-claimant applications were helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1113 at [10] including, relevantly, as follows:

…

(2)        The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42]

(3)        Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].

(4)        The overriding proposition is that each case must be assessed on its own particular facts: [47].

(5)        Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].

(6)         The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].

(7)         All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].

(8)         A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].

(9)        The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].

(10)      In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].

(11)       In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].

(12)       The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.

(13)       In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].

(14)       No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].

(15)       If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].

(16)       The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].

(17)       The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].

15    There are two bases upon which the Applicant can establish that native title does not exist (Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 at [48] (Griffiths J); Worimi at [97]):

(1)    that any native title that did exist has been extinguished (see, eg, Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 at [19] (Griffiths J)); or

(2)    that no native title exists in the application area, either because it is not claimed or cannot be proved by a native title claimant.

16    The Applicant submits that any native title has been extinguished, making it unnecessary to consider the alternative basis upon which it could be said native title does not exist. The First Respondent also submits that native title has been extinguished. The Second Respondent submits that the Applicant has not discharged its burden of showing native title has been extinguished so that the application must be dismissed. My analysis of these submissions is set out below.

EVIDENCE

17    The following evidence and submissions have been filed and considered in the course of the present application:

(1)    The Applicant filed an affidavit of Ms Louise Margaret Mallon dated 15 January 2025 (the First Mallon Affidavit), and has filed submissions in chief and in reply, dated 16 January 2025 and 13 March 2025 respectively. Ms Mallon is a solicitor employed in the office of the Coffs Harbour & District Local Aboriginal Land Council. Just prior to the hearing, additional submissions were filed on 11 August 2025. A further affidavit was filed shortly after, on 19 August (the Second Mallon Affidavit).

(2)    The First Respondent filed an affidavit of Mr Dominic Gerard Smith dated 13 February 2025 (the First Smith Affidavit), and submissions dated 14 February 2025. Mr Smith is a solicitor employed in the office of the Crown Solicitor of New South Wales. Further submissions dated 11 August were filed ahead of the hearing, and two further affidavits of Mr Smith were filed, dated 11 and 21 August 2025 (the Second and Third Smith Affidavits, respectively).

(3)    The Second Respondent filed submissions dated 5 March 2025, and submissions both before and after the hearing, dated 11 August and 20 August 2025 respectively.

18    The First Mallon Affidavit exhibits the notifications analysed below and sets out the procedural steps taken by the Applicant to satisfy the formal requirements of this application. It also contains information relevant to Special Lease 1909-25 Bellingen over the Application Area, the approval of the grant of which was notified on 8 June 1910 (the Special Lease). It is this Special Lease that is relied upon to establish extinguishment, discussed below. The evidence annexed to the First Mallon Affidavit provides information that is of assistance in analysing the terms of the Special Lease, including:

(1)    A copy of details from the 1909 edition of the Parish Map of the Parish of South Bellingen, County of Raleigh, dated 21 January 1909.

(2)    A copy of the notification of the Special Lease published on 8 June 1910 identifying the purpose of the Special Lease as being “Residence, grazing and agriculture”.

(3)    A copy of the notification of Reserve 53,796 (over the western part of Lot 494, which included the Application Area) published on 20 February 1920 noting that the Special Lease was not affected by the notification of Reserve 53,796.

(4)    A copy of the notification of the extension of the term of the Special Lease published on 17 June 1927. The purpose of the Special Lease at that time was noted as “Grazing and agriculture”.

(5)    Copies of three proclamations by the Governor that each of “grazing”, “agriculture” and “residence” were purposes within the meaning of s 90 of the Crown Lands Act 1884 (NSW) (CL Act 1884).

19    The Second Mallon Affidavit included material identified through archival searches, including to understand the meaning of certain notations on the map of the village in which the land the subject of this application was found. The annotations included “R 89”, “W R 30899 “and “R 52245”. The additional searches carried out and deposed to in the Second Mallon Affidavit demonstrated that the rights to which the annotations referred did not confer any right of public access.

20    The First Smith Affidavit exhibits various documents either held or obtained by the Crown Solicitor’s Office relevant to the extinguishment of native title, including:

(1)    Pages from the New South Wales Government Gazette No. 45 folio 1825, notified on 30 March 1910.

(2)    A tenure card for the Special Lease obtained during searches conducted from the Department of Planning Housing and Infrastructure.

(3)    Crown Plan 2455-1714 which was located during searches conducted from the Department of Planning, Housing and Infrastructure, showing part of the land the subject of the present application.

21    By the Second Smith Affidavit, the Attorney-General provided a copy of the New South Wales Government Gazette No. 18 notified on 30 January 1920, and a village map of the area in question, including identifying portion 494 of the land was subject to the travelling stock reserve 53,796, which was notified on 20 February 1920. In the Third Smith Affidavit, a further page from the New South Wales Government Gazette dated 30 March 1910 was extracted along with a “tenure card” for the Special Lease, which was located during searches conducted from the Department of Planning, Housing and Infrastructure.

22    I have considered these materials in the context of analysing whether the requirements of the NTA have been satisfied, below. As a general comment, I note that the historical nature of the matters in issue makes it difficult to identify with certainty the steps that were or were not taken. Of course in this proceeding, the burden rests squarely with the Applicant, unaffected by concerns of that kind. However, it is appropriate to record with gratitude the diligence with which the parties have applied themselves to assist the Court with this not-uncomplicated task.

The notification requirements

23    The Registrar commenced notification of the application on 8 May 2024, and the notification period closed on 7 August 2024. The First Mallon Affidavit establishes that the formal requirements of notification under s 66 of the NTA have been complied with because:

(1)    the notification included the content required by s 66(10);

(2)    the notification day was specified in accordance with s 66(8);

(3)    the Registrar informed the Applicant that the Registrar provided a copy of the application to the relevant State Minister and the representative body;

(4)    the Registrar informed the Applicant that the Registrar gave notice to the parties identified in s 66(3)(a) of the NTA, relevantly:

(a)    any registered native title body corporate in relation to any of the area covered by the application;

(b)    any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application;

(c)    any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory;

(d)    the Commonwealth Minister; and

(e)    any local government body for any of the area covered by the application.

24    In addition, notice of the application was published in the Koori Mail on 24 April 2024 and the Coffs Coast News on 26 April 2024 in accordance with the Notices Determination. The Notices Determination provides the specific advertising requirements of the notice, including:

(1)    Advertising in one or more newspapers that satisfy the coverage requirements for the notice (Notices Determination, cl 6(1)). In this case, those requirements were met by publication in both the Koori Mail and the Coffs Coast News.

(2)    Any relevant notice including the details of the application, a clear description of the area to which the application relates, and a statement about how further information can be obtained (Notices Determination, cl 6(5)). In respect of the notices referred to above, the land has been identified in the public notices by Lot and DP number, supplemented by a map and approximation of the land area, as extracted in Annexure A to these reasons. This constitutes a sufficiently clear description for the purposes of the Notices Determination.

25    I am therefore satisfied that the formal notice requirements for making the determination sought by the Applicant have been satisfied. No party submitted otherwise.

Previous determinations

26    The First Mallon Affidavit exhibits a search of the Register of Native Title Claims conducted on 14 August 2024, showing that there were no entries falling within the boundaries of the present application. No other party has sought to be joined to the proceeding. On 18 November 2024 the National Native Title Tribunal carried out an overlap analysis which showed that the only interest on the register for the area is that of the Applicant:

27    Accordingly, the evidence establishes that there is no overlap between the application area and any previous approved determination of native title for the purposes of ss 13(1) and 68 of the NTA.

previous exclusive possession acts

28    Certain acts attributable to the Commonwealth that were done on or before 23 December 1996 operate to completely or partially extinguish native title (NTA s 23A(1)). One such act is a “previous exclusive possession act” (PEPA), involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession (NTA s 23A(2)).

29    The Applicant asserts that the Court can be satisfied that no native title exists because the Special Lease is a PEPA. Section 23B(2) of the NTA provides that an act is a PEPA if:

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

Note:     As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

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

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

(i) a Scheduled interest (see section 249C);

(ii) a freehold estate;

(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

(v) a residential lease;

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

(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

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

30    Section 23C(1)(a) of the NTA provides that a PEPA attributable to the Commonwealth extinguishes any native title in relation to the land or waters covered by, relevantly, the Scheduled interest. Section 23D provides for the preservation of beneficial reservations and conditions, and s 23DA confirms the validity of use of certain land held by the Crown. Section 23E confirms that, if a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory. Sections 21 and 22 of the Native Title (New South Wales) Act 1994 (NSW) (NSW NTA) are to the same effect as ss 23D and 23DA of the NTA. Section 20 of the NSW NTA interacts with ss 23C and 23E of the NTA by confirming that where a PEPA is attributable to the State, it is effective to extinguish native title. Section 20(1) of the NSW NTA provides:

Confirmation of extinguishment of native title by previous exclusive possession acts of the State

(1) Acts other than public works If an act is a previous exclusive possession act under section 23B(2) (including because of section 23B(3)) of the Commonwealth Native Title Act and is attributable to the State—

(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

(b) the extinguishment is taken to have happened when the act was done.

31    The Applicant submits that the Special Lease was a PEPA because of either:

(1)    s 23B(2)(c)(i), on the basis that it consisted of the grant of a Scheduled interest; or

(2)    s 23B(2)(c)(viii), on the basis that it conferred a right of exclusive possession over the Application Area.

32    I turn first to consider whether there was a PEPA because the Scheduled interest was granted in respect of the land the subject of the present application (s 23B(2)(c)(i)).

Is the Special Lease a Scheduled Interest?

33    “Scheduled interest” is defined in s 249C(1)(a) of the NTA to include, relevantly, “anything set out in Schedule 1”. Schedule 1 of the NTA identifies a range of legislative provisions under which different leases can be granted in different States and Territories. Part 1 relates to New South Wales, Part 2 relates to Victoria, Part 3 relates to Queensland and so on.

34    This case concerns New South Wales, so Part 1 of Schedule 1 is relevant.

35    The instrument creating the Special Lease does not itself state which provision governed its grant. However, at the time that the Special Lease was approved in June 1910 the only powers for the grant of special leases were s 90 of the CL Act 1884 and s 46 of the Crown Lands Act 1895 (NSW) (CL Act 1895). I am therefore prepared to infer that the Special Lease was granted under s 90 of the CL Act 1884 (complemented by s 46 of the CL Act 1895). The parties agree with this conclusion.

36    Section 90 of the CL Act 1884 stated:

The Governor may lease by auction or otherwise for a term not exceeding fifteen years and in areas not exceeding in any case three hundred and twenty acres Crown Lands for any of the purposes hereinafter specified that is to say for dams—tanks—irrigation works—wharfs—bridges—punt-houses—ferries—bathing-places—landing places—saw-mills—brick-kilns—lime-kilns—slaughter-houses—tanneries—wool-washing establishments—quarries—fisheries—building or repairing ships or boats—tramway purposes—obtaining guano—shells—limestone—loam—brickearth—gravel—or ballast—or for an inn—store—smithy—bakery—or mail station in sparcely populated districts—or for any purpose declared by the Governor by proclamation in the Gazette to be a purpose within this section and may determine the upset rent thereof if let at auction or the annual rent if let otherwise not being in either case less than ten pounds per annum and may annex to any such lease such conditions reservations and provisions as he may deem fit Provided that leases may be granted at a less rental to contractors of public works for purposes connected with the construction of such works during the term of contract If it should appear to the satisfaction of the Governor that the land comprised in any such lease is not used and occupied bona-fide for the purpose for which the same has been made or that default has been made in any condition he may declare such lease forfeited together with any improvements erected on the land and any rent paid in respect thereof.

37    As can be seen, s 90 permitted the Governor to lease, by auction, land for a period not exceeding 15 years and 320 acres of Crown land for particular purposes. These purposes did not initially include grazing, agriculture or residence. However, those purposes were each declared to be purposes within s 90 by separate proclamations made by the Governor on 28 August 1894, 26 November 1895 and 14 April 1897. The first such declaration (of 28 August 1894) stated that:

In pursuance of the provisions of the Crown Lands Act of 1885, I …. Do hereby approve of an declare “Grazing” to be a “purpose” within the meaning of the 90th section of the said Act.

38    The second, dated 26 November 1895 said that:

In pursuance of the provisions of the Crown Lands Act of 1884, I… do hereby approve of and declare “agriculture” to be a “purpose” within the meaning of the 90th section of the said Act.

39    Finally, the declaration of 14 April 1897 said:

In pursuance of the provisions of the Crown Lands Act of 1884, I… do hereby approve of an declare “Residence” to be “a Purpose” within the meaning of the 90th section of the said Act.

40    The Special Lease was subject to a number of special conditions under regulations then in force, including the requirements to:

(1)    enclose the land with a substantial fence and maintain the fence in efficient repair for the currency of the lease (special condition (a));

(2)    clear the whole area of all noxious scrub, plants or weeds, lantana, nagoora, burr and blackberry and keep the land clear of them during the currency of the lease (special condition (b));

(3)    on the part of the lease used for grazing purposes only the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further (special condition (c)); and

(4)    fell all timber up to 1 foot in diameter, ringbark the remainder on 20 acres of the area, and plant same with pasture or cultivate any part of the said area (special condition (d)).

41    The Crown Lands Consolidation Act 1913 (NSW) (the CLC Act) came into effect in 1913. It contained a deeming provision (the terms of which are set out below). The Applicant argues that the effect of the deeming provision under the CLC Act was to deem the Special Lease to have been granted under s 75 of the CLC Act.

42    The terms of the special lease were extended pursuant to s 229 of the CLC Act on 30 January 1920 and 17 June 1927 (the Special Lease Extensions). The purpose of the special lease in both extensions was stated to be for “Grazing and agriculture”. The Special Lease expired on 31 December 1931.

43    The Applicant submits that the Court can be satisfied that the Special Lease was granted pursuant to s 90 of the CL Act 1884, and that its terms were such that over the whole of Portion 494 (encompassing the Application Area) it permitted the lessee to use the land or waters covered by the lease solely or primarily for the purposes set out in Schedule 1, Pt 1, cl 2(3) of the NTA, being (emphasis added):

(3) A special lease under section 90 of the Crown Lands Act 1884 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

agriculture; bakery; bee and poultry farm; boiling down works; brick-kiln; bridge; building or repairing ships or boats; construction of a drainage canal; construction of an irrigation canal; cricket; cultivation of eucalyptus; dairying; dam; erection of machinery; factory; ferry; freezing works; graving dock; inn; irrigation or drainage canal; lime-kiln; mail station; night soil depot; nursery garden; patent slip; pig and poultry farm; punt-house; residence; saw-mill; sericulture; sheep and cattle yard; show ground; site for storage of explosives; skin drying and skin packing; slaughterhouse; slaughterhouse accommodation paddock; smelting works; smithy; storage; store; tank; tannery; tobacco growing; tramway; vegetable garden; wattle growing; well; wharf; wool washing establishment (emphasis added).

44    It argues that for that reason, the Special Lease was a Scheduled interest within the meaning of s 249 of the NTA, rendering it a PEPA under s 23B(2)(c)(i) of the NTA.

45    The First Respondent agrees with this analysis.

46    The Second Respondent disagrees with this analysis, and argues instead that because the purpose for which the Special Lease was granted included agriculture, residence and grazing, it did not fall within the purposes in cl 2(3) of Schedule 1, because that list included agriculture and residence, but not grazing.

47    In the alternative, the Applicant submits that the extension of the Special Lease was a scheduled interest because it fell within Schedule 1, Pt 1, cl 3(8) of the NTA. This is said to arise because s 314 of the CLC Act deemed the Special Lease to have been made under s 75 of the CLC Act and cl 3(8) of Schedule 1 of the NTA states:

(8) A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoirs accommodation paddock; abattoirs and resting paddock; accommodation house; aerodrome; agriculture; agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; archery ground; bakery; basketball court; bee and poultry farm; boatshed; boiling down works; bowling green; brick kiln; bridge; building and repairing boats; building and repairing boats or ships; building or repairing of ships; bushfire brigade facilities; cable station; church and school site; community centre; construction of drainage canal; construction of irrigation canal; council chambers; council depot; council office; coursing ground and plumpton; cricket; cultivation; cultivation of eucalyptus; Country Women’s Association rest rooms; dairying; dam; dam, weir or tank; day care centre; depot; dog and animal pound; dog racing course; domestic garden; driver training ground; equestrian grounds; erection of building; erection of coke oven; erection of dwelling; erection of machinery; factory; feedlot; ferries; freezing works; golf course; graving dock; gymnasium; horse racing course; horticulture; inn; kindergarten; land‑based aquaculture; library; lime‑kiln; mail station; manufacture of eucalyptus oil; market garden; mixed farming or any similar purpose other than grazing; motel; motor car and bike racing track; motor sports activities and facilities; neighbourhood depot; night soil depot; nursery garden; orchard; parking area; patent slip; pig and poultry farm; piggery; planting; poultry farm; power house, engine house, boiler house, bathroom, loading facilities or coal washery in connection with coal mining; pre‑school; punt house; railway siding; railway station and depot; reclamation; refreshment room; refuse tip site; research centre; residence; residential development; residential subdivision; retirement village; rifle and pistol range; sale yard; sawmill; school and church site; school or other educational institution; septic tank; sericulture; sewage farm; sheep and cattle yard; showground; site for storage of explosives; skin drying and skin packing; slaughterhouse or abattoirs accommodation paddock; slaughterhouse; slip; smelting works; smithy; sporting club building; sporting ground; sporting ground and facilities; stable; storage of explosives; storage purposes; store; sugar cane growing; surf life saving club; swimming pool; tank; tannery; telecommunications or broadcasting tower, mast or building; tobacco growing; tramway; tree farming; vegetable garden; vegetable garden and nursery; velodrome; vineyard; volunteer rescue facilities; waste depot; water race; water storage; wattle growing; weighbridge; well; whaling station; wharf; wool washing establishment (emphasis added).

48    Because cl 3(8) of the NTA includes all of the purposes for which the Special Lease was granted, it is said that the Special Lease meets the definition in the clause. The First Respondent agrees with this analysis. The Second Respondent argues that the deeming provision is not effective for the purposes of the NTA, and that this clause in the Schedule therefore does not apply.

49    In a further alternative, the Applicant argues that the Special Lease falls within cl 3(8) of Schedule 1 because the Special Lease was extended under s 229 of the CLC Act, which was sufficient, either on its own, or in combination with the deeming provision, to mean that the Special Lease was under s 75 for the purposes of cl 3(8) of the NTA, and at least from that time, met the definition of a PEPA. The First Respondent agrees with this argument. The Second Respondent initially agreed that this was so, but resiled from that position following a request for clarification from the Court.

50    Accordingly, the Applicant and First Respondent argued that the Special Lease was a PEPA because it was a Scheduled interest either under:

(1)    cl 2(3) of Sch 1, Pt 1: if the Special Lease were under s 90 of the CL Act 1884 and permitted the lessee to use the land or waters covered by the lease solely or primarily for the purposes listed; or

(2)    cl 3(8) of Sch 1, Pt 1: if the Special Lease were under s 75 of the CLC Act 1913 and permitted the lessee to use the land or waters covered by the lease solely or primarily for the listed purposes, or if the extension under s 229 was sufficient to bring it within cl 3(8) of Schedule 1.

51    All parties accept that the Special Lease was valid (s 23B(2)(a)) and involved an act that took place before 23 December 1996 (s 23B(2)(b)). Accordingly, if the Special Lease was a Scheduled interest under either cl 2(3) or cl 3(8), then it would be a PEPA and operate to extinguish native title, and the question of whether the Special Lease confers a right of exclusive possession over particular lands or waters for the purposes of s 23B(2)(c)(viii) would not arise.

The Special Lease and cl 2(3) of Schedule 1, Part 1 to the NTA

Submissions of the Applicant

52    The Applicant argues that the Special Lease was a Scheduled interest under Sch 1, Pt 1, cl 2(3) of the NTA because it was a special lease that “permit[ted] the lessee to use the land or waters covered by the lease solely or primarily for… agriculture; … residence…”.

53    The Applicant argues that the Special Lease conferred the right to use the land the subject of the Special Lease solely or primarily for any combination of the three stated purposes. It argues therefore that the lessee was permitted to have used the entirety of the land solely or primarily for (for example) agriculture. This is said to fall within cl 2(3) of Schedule 1.

54    This is said to be consistent with the jurisprudence concerning exclusive possession, which is focused upon the rights conferred, not the manner of their use (Western Australia v Ward [2002] HCA 28; 213 CLR 1 (Ward HC)). The High Court in Ward HC at [79] endorsed the comments of Beaumont and von Doussa JJ in the decision below, where their Honours said (Western Australia v Ward [2000] FCA 191; 99 FCR 316 at [81], citations omitted):

The inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests. It is to be noted that Lambert JA in Delgamuukw said that he did not think that there was any basis in principle for saying that inconsistency between the grant and native title necessarily means that it is the native title that must give way. This view is not consistent with the inconsistency of incidents test adopted in Australia.

55    Thus, it is said in this case, the correct approach is to consider the rights which the lessee was permitted to exercise. That is, if the Special Lease conferred the right to use the land solely or predominantly for agriculture or solely or predominantly for residence (ie, a purpose in Sch 1, Pt 1, cl 2(3)), it does not matter that the lessee could also use it solely or predominantly for grazing.

56    In addition, the Applicant sought to analogise the Special Lease with that considered in Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney-General of New South Wales [2021] FCA 169 (Ohlsen) at [591]-[594]. There, Griffiths J held that a special lease granted for the purpose of “Irrigation” fell within Sch 1, Pt 1, cl 3(8), which did not include leases for “irrigation” but included leases permitting the lessee to use the lease area solely or primarily for “agriculture”, “agriculture or any similar purpose” and “cultivation”. His Honour reached this conclusion on the basis of the ordinary meanings of the words “irrigation” and “agriculture”, ultimately concluding that irrigation was encompassed in the Schedule because “[b]y its very nature, land is irrigated for the purpose of agriculture in some form or another” (at [594]).

The submissions of the First Respondent

57    The Attorney-General of New South Wales argues that because two out of the three purposes for which the Special Lease were granted are purposes identified in Sch 1, Pt 1, cl 2(3) of the NTA, it is sufficient to be a Scheduled interest under that clause. In effect, the First Respondent argues that the “predominance” of the use is tied to the number of uses which are scheduled. If the scheduled purposes predominate (in the sense that there are more scheduled purposes than non-scheduled purposes listed in the lease) then the lease will qualify as a PEPA.

The submissions of the Second Respondent

58    The Second Respondent argues that because Sch 1, Pt 1, cl 2(3) of the NTA does not list “grazing” as one of the “sole or primary” purposes capable of being a Scheduled interest, the Special Lease does not fall within the terms of the Schedule. According to the Second Respondent, the fact that one of the three purposes of the Special Lease is not listed in cl 2(3) of the NTA means that the Special Lease does not meet the definition.

59    The Second Respondent relied upon a different aspect of the reasoning of Griffiths J in Ohlsen than that referred to by the Applicant.

60    In Ohlsen, there was a lease granted for the purposes of “Access and storage”. Justice Griffiths said that this had important implications for whether the lease is a Scheduled interest within Sch 1, Pt 1, cl 3(8) of the NTA, which includes a lease that permitted the lessee to use land or waters covered by the lease solely or primarily for “storage purposes”, but did not include “access”. His Honour concluded on this issue that (at [580]-[581], emphasis in original):

As the applicant pointed out, it is difficult to see how this particular SLT permitted the lessee to use the lease area primarily or solely for storage purposes when the terms of the grant of the lease permitted it also to be used for access in circumstances where access is not included in the list of items in cl 3(8).

Accordingly, as a matter of statutory construction I reject the State’s claim that SLT No. 1939/1 Warren was a “Scheduled interest”.

61    The Full Court agreed with this analysis (Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38; 290 FCR 173 (Ohlsen FC) at [237] (Bromberg, Mortimer and Jackson JJ)) observing that the terms of the Special Lease in that instance required the lease holder to use and occupy the land bona fide for both access and storage (at [240]).

62    The Second Respondent argued that “…the Applicant’s evidence does not support the view that the Special Lease was granted solely and / or primarily for the purpose of ‘agriculture’ and ‘residence’”. In particular, the Second Respondent referred to:

(1)    the terms of the Special Lease also permitting the use of the land for “grazing” which was not included in the list of purposes in cl 2(3);

(2)    the limitation created by the special conditions of the Special Lease, restricting the lessee from cultivation of the area beyond the growth and spread of pasture grasses; and

(3)    the optional condition to plant up to 20 acres with pasture.

Analysis

63    The question of whether the Special Lease was a Scheduled interest is a matter of construction of the relevant provisions, together, being s 23B(2)(c)(i), s 249C, and Schedule 1 of the NTA. The task of construction is carried out by reference to the text, context and purpose of the provisions in question.

64    Section 249C identifies the Scheduled interest, which is defined to be “anything set out in Schedule 1” other than certain specified exclusions that are not presently relevant. The chapeau to Sch 1, Pt 1, cl 2(3) focuses attention on what the lease permits, and contemplates the sole or primary land use being listed actions. It provides as follows (emphasis added):

A special lease under section 90 of the Crown Lands Act 1884 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

65    In Ohlsen FC, the Full Court at [237] endorsed the observation of Olney J in Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32 at [81] (made by reference to a different clause in Schedule 1 that):

those who have been responsible for drafting the legislation have gone to extraordinary lengths to identify with precision the various purposes from which leases intended to be covered by these subclauses have been granted…  the purposes specified in the Schedule are intended to relate to leases actually granted solely or primarily for those purposes.

66    The Full Court concluded that the implication to be drawn from a lease granted for the purpose of “access and storage” is not the same as the lease granted for the purpose of “storage” alone (at [237]). They therefore endorsed the approach of Griffiths J below, concluding that a special lease for “access and storage” was not a Scheduled interest. The Full Court reiterated the importance of comparing the terms of what the lease permitted, rather than the way the land was ultimately used, by stating (at [240]):

To posit a situation where the lease holder uses the land so much for storage and so little for access that it is used primarily for storage is to commit the error of focusing on what subsequently happens on the land, rather than on the terms of the grant. In any event, it would be a situation where the lease holder risks breaching the terms of the grant.

67    The Full Court in Ohlsen FC endorsed an approach by which one identifies first what the special lease permits and requires, before comparing it to what is listed in the Schedule to determine whether or not the special lease permitted the use of the land solely or primarily for a purpose or purposes listed in the Schedule. With respect, I agree with that approach.

68    Like in the provision considered in Ohlsen FC at [239]-[240], s 90 of the CL Act 1884 included a statement that:

If it should appear to the satisfaction of the Governor that the land comprised in any such lease is not used and occupied bona-fide for the purpose for which the same has been made … he may declare such lease forfeited together with any improvements erected on the land and any rent paid in respect thereof.

69    The effect of this term is that the lessee was required to use the land for the purposes for which it was conferred. Failure to do so would result in the Special Lease being subject to forfeiture. Clearly, therefore, the land could not be used “solely” for any of the three purposes. The question is whether the land could be used “predominantly” for a cl 2(3) purpose.

70    In this instance, there were three purposes. Two of the three were scheduled. While there is some force in the submission that the scheduled purposes therefore predominate, overall, I am not persuaded it is correct. In particular, the obligation extracted at [68] above required that the lease is used and occupied bona-fide for, among other things, grazing. The possibility that this would be a subordinate or non-predominant use requires speculation about actual use that is inconsistent with the approach of the Full Court. The Special Lease required the use of the land for the three identified purposes. In its terms, it did not permit the division of which purpose was “predominant” between those purposes. It follows that the Special Lease is not a Scheduled interest under Sch 1, Pt 1, cl 2(3).

71    I have therefore considered the position under cl 3(8) of Schedule 1.

The Special Lease and cl 3(8) of Schedule 1, Part 1 to the NTA

72    As explained above, the Special Lease was granted under s 90 of the CL Act 1884. The CLC Act repealed the CL Act 1884 when it was introduced in 1913. However, s 2 of the CLC Act contained a saving provision, which stated that:

…The repeal of the several enactments hereby repealed shall not of itself operate to annul prejudice or affect any grant sale purchase exchange lease contract agreement or other transaction which before the passing of this Act was made effected declared to be valid or validated under or by virtue of or by any repealed enactment.

But all such grants sales purchases exchanges leases contracts agreements or other transactions (subject however to the express provisions, if any, of this Act in relation thereto respectively) shall remain as valid as if the repeal hereby effected had not been effected.

And all the provisions in any repealed enactment respectively contained for the benefit or security either of the predecessors of His present Majesty, Their Heirs and Successors, or of His present Majesty, His Heirs and Successors, or of any of the parties, to or with whom or in whose favour any such grant sale purchase exchange lease contract agreement or other transaction was made effected declared to be valid or validated, shall so far as regards His Majesty, His Heirs and Successors, and such parties respectively and all persons claiming under Him or them respectively (but only to the extent to which such provisions are not replaced by analogous provisions in Part VIII or IX hereof) remain and be of as full force as if the enactments hereby repealed had not been repealed…

73    Section 314 of the CLC Act deemed special leases under s 90 of the CL Act 1884 to have been granted under the CLC Act as follows (emphasis added):

Leases in the Eastern or Central Division which are of the respective kinds hereunder specified shall be deemed to have been granted under the respective sections of this Act, which are specified hereunder against the names of the respective kinds of leases, and to have been and to be subject to such provisions of Part IV of this Act, as relate to leases granted under the said respective sections:

Provided always that the provisions of any instrument of lease from the Crown shall not be affected by the foregoing enactment.

The kinds of leases and the sections of this Act hereinbefore referred to are as follows:

…Special lease – sections seventy-four, seventy-five and seventy-six.

Provided always – in reference to the several subsections specified as aforesaid against the name of the residential lease – a residential lease shall be deemed to have been granted under such one of the said subsections as is analogous to the provision under which it was in fact granted and – in reference to the several sections specified as aforesaid against the name of special lease – a special lease shall be deemed to have been granted under such one of the said sections as is analogous to the section under which it was in fact granted.

74    Section 314 requires consideration of which provision of the CLC Act is properly construed as conferring rights under “the respective kinds of leases” to s 90 of the CL Act. The parties accepted that s 75 of the CLC Act is analogous on the basis that it provided for special leases to be granted for miscellaneous purposes in the following terms:

The Minister may lease by auction or otherwise in areas not exceeding in any case three hundred and twenty acres Crown lands (not being in the Western Division) for any of the purposes hereinafter- specified, that is to say, for dams — tanks—irrigation works — wharfs — bridges — punt-houses—ferries — bathing-places— landing-places — saw-mills — brick-kilns — lime-kilns — slaughterhouses— tanneries—wool-washing establishments—quarries—fisheries —building or repairing ships or boats—tramway purposes—obtaining guano—shells—limestone— loam—brick earth—gravel—or ballast— or for an inn—store—smithy—bakery—or mail station in sparsely populated districts—or for business purposes—or for the erection of buildings—or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section, and if the letting be by auction, may determine the upset rent thereof, and may annex to any such lease such conditions reservations and provisions as he may think fit.

75    By way of comparison, s 90 of the CL Act 1884 provided:

The Governor may lease by auction or otherwise for a term not exceeding fifteen years and in areas not exceeding in any case three hundred and twenty acres Crown Lands for any of the purposes hereinafter specified that is to say for dams—tanks—irrigation works—wharfs—bridges—punt-houses—ferries — bathing-places — landing-places—saw-mills— brick-kilns— lime-kilns — slaughter-houses—tanneries—wool-washing establishments—quarries—fisheries—building or repairing ships or boats—tramway purposes—obtaining guano—shells—limestone—loam—brickearth—gravel—or ballast—or for an inn—store—smithy—bakery—or mail station in sparsely populated districts—or for any purpose declared by the Governor by proclamation in the Gazette to be a purpose within this section …

76    I accept that s 90 is analogous to s 75 of the CLC Act, and that as a result, the Special Lease was deemed to have been granted under s 75 of the CLC Act for the purposes of that Act.

77    Grazing and agriculture were declared to be relevant prescribed purposes under s 90 of the CL Act 1884, and are therefore valid purposes for which a special lease could be granted under s 75 of the CLC Act (Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2022] FCA 1555 at [42] (Burley J)).

78    The Second Respondent argues that the deeming provision is not effective for the purposes of the NTA and that it is a legal fiction created only for the purposes of the regulation of leases under the CLC Act alone.

The effect of the deeming provision

79    A deeming provision requires the adoption of a statutory fiction. Where a deeming provision does not state expressly the extent to which it applies, determining that extent is a matter of construction (see Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [51] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ)). The approach to construing deeming provisions was recently explained in Vatner v Chief Commissioner of State Revenue [2024] NSWSC 769 at [83] (Richmond J):

A deeming provision such as cl 6(1) is to be construed in the same way as any other statutory provision, by giving effect to the ordinary and natural meaning of the words used, having regard to the context and purpose of the provision: see eg. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [4] and [47]. The mere fact that it is a deeming provision is not a reason to give the provision a narrow construction.

80    The Applicant and the First Respondent argue that the construction of the deeming provision is informed by its purpose, which was to permit the regulation of leases to continue by gathering all such leases under the CLC Act, so they could be regulated and extended as necessary. Moreover, it is said that the NTA was enacted on the basis of an understanding of the statutory fiction created by the deeming provision in s 314 of the CLC Act. Thus, Sch 1, Pt 1, cl 3(8) of the NTA, by referring to leases granted under s 75 of the CLC Act, must be taken to have included special leases deemed to have been granted under s 75 by operation of s 314.

81    The Second Respondent argues that the purpose of the NTA is to recognise and protect native title. It argues that to apply a deeming provision that may lead to extinguishment would be to construe the extinguishment provisions of the NTA inconsistently with its purposes.

82    I accept that the NTA is intended to protect native title. However, the submissions of the Second Respondent as to how that general proposition is to act upon the construction of specific provisions of the NTA is lacking. The NTA makes detailed provision for the extinguishment of native title by reference to past acts, including leases made under past legislation. A general invocation of the beneficial purpose of the NTA does not in this instance displace the conclusion that the text, context and purpose of the NTA comfortably accommodates the operation of the deeming provision in s 314 (see generally NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [32]-[34] (French CJ, Kiefel, Bell and Keane JJ)).

83    There are further factors that I consider weigh in favour of the conclusion that the deeming provision is operative in the context of the NTA:

(1)    It would be inconsistent with the purpose of simplifying or streamlining the administration of such leases if the statutory basis upon which they were granted was fractured. It is a more harmonious construction of the deeming provision that it is effective wherever the identification of the statutory basis for the grant of the lease is called for.

(2)    Bringing the predecessor leases within the s 75 framework is an apparent purpose of s 314 of the CLC Act. In that sense, the construction which I prefer goes no further than is required to achieve the object of its inclusion (Queensland v Congoo [2015] HCA 17; 256 CLR 239 at [165] (Gageler J)).

(3)    The deeming provision does no violence to the terms or operation of the actual grant or substance of the Special Lease. The Second Respondent argues that this should be taken to mean that the deeming provision should have no operation outside the CLC Act. It is not clear why that implication would follow. Indeed, the deeming provision being effective for the purposes of the NTA is consistent with the deeming provision operating to identify a legal basis for the Special Lease, rather than changing the Special Lease itself.

(4)    The NTA carefully identified the statutory provisions capable of constituting a PEPA, and included leases under s 75 of the CLC Act. The CLC Act identified which leases were to be considered as made under that provision, in s 314.

84    It could be said that if the deeming provision operated in the manner suggested by the Applicant, then there would be no need to specify each separate piece of legislation in Schedule 1, because all special leases granted under s 90 of the CL Act 1884 would be captured by the deeming provision and be deemed to have been made under the CLC Act. There would be no need to refer to the CL Act 1884 at all. However, that concern does not alter the analysis: any lease which expired before 1913 was never captured by the deeming provision. Moreover, Section 7 of the CLC Act divided New South Wales into three divisions, the Eastern, Central and Western, with the boundaries of each identified in the Second Schedule to the CLC Act. Section 314 operated in respect of “[l]eases in the Eastern or Central Division”. Section 90 of the CL Act permitted the grant of leases without any limitation: thus there may have been Special Leases not captured by the deeming provision because they were not “[l]eases in the Eastern or Central Division”. It is clear that the Special Lease was in the Eastern Division having regard to the terms of the Second Schedule to the CLC Act, and from the detail in the 1909 edition of the Parish Map annexed to the First Mallon Affidavit:

85    Accordingly, for the reasons that I have identified, I consider that s 314 of the CLC Act operated to deem the Special Lease to be “a special lease under… section 75” for the purpose of Sch 1, Pt 1, cl 3(8) of the NTA.

86    The Second Respondent argued that, even if s 314 of the CLC Act operated to make the Special Lease a lease “under” s 75 within Sch 1, Pt 1, cl 3(8), the Special Lease could not be a PEPA because that deeming did not “consist of the grant or vesting” of the Scheduled interest within s 23B(2)(c): the lease was granted in 1910, and it was not re-granted or re-vested when it was deemed to be made under s 75 of the CLC Act.

87    This is answered by the terms of the deeming provision itself, which deems the Special Lease to have been granted under s 75. Because I have concluded that the deeming provision operates to deem the Special Lease, it follows that it consists of a granting of the lease for the purposes of s 23B(2)(c).

88    Schedule 1, Pt 1, cl 3(8) of the NTA is set out in full at [47] above. Relevantly, it includes special leases under s 75 of the CLC Act “that [permit] the lessee to use the land or waters covered by the lease solely or primarily for any of the following… agriculture; agriculture (or any similar purpose) and grazing combined; … residence”. Accordingly, the Special Lease which is (taken to have been) granted under s 75 for “Residence, grazing and agriculture” is a Scheduled interest within the meaning of Sch 1, Pt 1, cl 3(8). It follows that the grant of the Special Lease was a PEPA because it constituted the valid grant (or vesting) of a Scheduled interest.

The extension of the Special Lease

89    The Special Lease was extended under s 229 of the CLC Act, which provides:

The Minister may upon application as prescribed extend the term of any scrub lease or inferior lands lease to a term not exceeding twenty-eight years, on such terms and conditions as he may think fit, but such term shall be computed from the commencement of such lease.

The term of any special lease or residential lease-if in the first instance fixed for less than twenty-eight years-may he extended to any term not exceeding twenty-eight years

90    When the Special Lease was extended, the purpose of the Special Lease was stated to be “grazing and agriculture”. The parties initially directed submissions to the question of whether the grant of an extension under s 229 of the CLC Act was the grant or vesting of a lease. As the argument in this matter evolved, the extension was relied upon in the alternative: if the Court was not satisfied that the deeming provision was sufficient to bring the Special Lease within cl 3(8), then it was said that the extension of the lease under s 229 would operate to do so, either as the grant of a new lease, or as the vesting of the Scheduled interest. Given my conclusions that there has been a PEPA by the operation of the deeming provision under s 314, I do not consider it necessary or appropriate to resolve that issue.

Conclusion

91    For the reasons that I have outlined above, I am satisfied that the Special Lease constituted a valid grant of a Scheduled interest that took place before 23 December 1996. As none of the exceptions to s 23B of the NTA apply, the Special Lease was a PEPA. In light of that conclusion, I have not separately considered whether the lease conferred rights of exclusive possession for the purposes of s 23B(2)(c)(vii).

92    It follows that I am satisfied that native title was extinguished in respect of the Application Area. No submission was advanced as to any other reason that it might be inappropriate to make the determination sought by the Applicant, and I am satisfied that it is appropriate to do so.

Associate:

Dated: 2 December 2025    

ANNEXURE A

MAP AND APPROXIMATION OF THE LAND AREA INCLUDED IN PUBLIC NOTICES