Attorney-General (NSW) v Ohlsen
[2022] FCAFC 38
•16 March 2022
FEDERAL COURT OF AUSTRALIA
Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38
Appeal from: Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 File number(s): NSD 292 of 2021 Judgment of: BROMBERG, MORTIMER AND JACKSON JJ Date of judgment: 16 March 2022 Catchwords: NATIVE TITLE – extinguishment – appeal from orders of primary judge in relation to separate questions – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) – whether certain statutory leases consisted of a grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth) – challenge to primary judge’s characterisation of statutory leases – meaning of exclusive possession in s 23B – comparison of statutory leases with pastoral leases – consideration of size of statutory leases – consideration of legislative references to lessee’s rights to bring an action in trespass – consideration of conditions, reservations, restrictions and other limitations on the rights of lessees – consideration of the language used in governing statutes – appeal dismissed Legislation: Native Title Act 1993 (Cth), ss 10, 11, 23B, 61, 85, 228, 242, 248A, 249C
Crown Lands Act 1884 (NSW)
Crown Lands Act 1889 (NSW)
Crown Lands Act 1895 (NSW)
Crown Lands Administration Act 1903 (NSW)
Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW)
Crown Lands Consolidation Act 1913 (NSW)
Mining Act 1874 (NSW)
Mining Act 1906 (NSW)
Native Title (New South Wales) Act 1994 (NSW), s 20
Western Lands Act 1901 (NSW)
Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Brown v Tasmania [2017] HCA 43; 261 CLR 328
C Pty Ltd v Sommer [2021] FCAFC 87
Cleaver v Mackinnon (1910) 10 SR (NSW) 377
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33
Fejo v Northern Territory [1998] HCA 58; 195 CLR 96
Fergusson v Mackinnon (1912) 12 SR (NSW) 406
Goldsworthy Mining Limited v Federal Commissioner of Taxation (1973) 128 CLR 199
Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; 144 CLR 633
Newington v Windeyer (1985) 3 NSWLR 555
North Ganalanja Aboriginal Corporation v State of Queensland [1995] FCA 869; 61 FCR 1
Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169
Radaich v Smith (1959) 101 CLR 209
Smith v Ward (2002) 20 SR (NSW) 299
State of Queensland v Congoo [2015] HCA 17; 256 CLR 239
Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
Western Australia v Brown [2014] HCA 8; 253 CLR 507
Western Australia v Ward [2002] HCA 28; 213 CLR 1
Wheeler v Baldwin [1934] HCA 58; 52 CLR 609
Wik Peoples v Queensland (1996) 187 CLR 1
Wilson v Anderson [2002] HCA 29; 213 CLR 401
Division: General Division Registry: New South Wales National Practice Area: Native Title Number of paragraphs: 286 Date of hearing: 17-19 August 2021 Counsel for the Appellant: Mr G del Villar QC with Mr H El-Hage Solicitor for the Appellant: Crown Solicitors Office (NSW) Counsel for the First to Fourth, Sixth to Tenth and Twenty-Second Respondents: Mr V Hughston SC with Mr Gregory Solicitor for the First to Fourth, Sixth to Tenth and Twenty-Second Respondents: NTSCorp Ltd Counsel for the Eleventh, Thirteenth to Seventeenth, Twentieth, Twenty-First, Twenty-Third and Twenty-Fourth Respondents: Respondents Eleven, Thirteen to Seventeen, Twenty, Twenty-One, Twenty-Three and Twenty-Four filed submitting notices, save as to costs ORDERS
NSD 292 of 2021 BETWEEN: ATTORNEY GENERAL OF NEW SOUTH WALES
Appellant
AND: ELAINE OHLSEN ON BEHALF OF THE NGEMBA/NGIYAMPAA PEOPLE
First Respondent
GRACE GORDON
Second Respondent
PETER WILLIAMS (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
BROMBERG, MORTIMER AND JACKSON JJ
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.The time in which an application for leave to appeal may be brought from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021 be extended to 22 April 2021.
2.Leave be granted to the Attorney General of New South Wales to:
(a)appeal from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021; and
(b)rely in that appeal on the Notice of Appeal filed on 7 April 2021.
3.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
This is an application for leave to appeal from certain orders in Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169. The applicant, the Attorney General of New South Wales, also requires an extension of time in which to seek leave to appeal. In these reasons, we refer to the applicant as the State, as the primary Judge did.
The orders the subject of the application comprised answers to nine series of separate questions regarding the extinguishment of native title, which arose in the context of an application for a determination of native title made under s 61 of the Native Title Act 1993 (Cth) by the Ngemba/Ngiyampaa People. It was agreed that the separate questions would be answered before any determination of the native title claim.
The separate questions concerned eight types of historical statutory leases over Crown land in New South Wales. In the context of the whole native title claim area, the amount of land previously covered by these statutory leases (all of which were historic rather than current tenures) was small: approximately 1.2 per cent of the total claim area. The State sought leave to appeal from some, but not all, of the answers given by the primary judge that the grant of the statutory leases in question did not wholly extinguish native title rights and interests in relation to the subject land.
For the reasons that follow, leave to appeal is granted, but the appeal is dismissed.
BACKGROUND
Legal framework
Section 10 of the Native Title Act provides that native title is recognised and protected in accordance with the Act, and s 11(1) provides that native title cannot be extinguished contrary to the Act: see Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [46] about the importance of these provisions. Those two general provisions conceal the complexities of the legislative scheme concerning extinguishment, and its interaction with the common law. Some of those complexities are at work in these appeals. However, below we set out only those parts of the Native Title Act relevant to the issues on the appeal. For example, Division 2 of Part 2 of the Native Title Act deals with the validation of certain acts that took place before 1 January 1994 and which would otherwise be invalid because of the operation of the Racial Discrimination Act 1975 (Cth). These acts are known as “past acts” and they are defined in s 228 of the Native Title Act. Since all the acts in question on the appeal, and before the primary judge, occurred decades before the Racial Discrimination Act was enacted, the “past act” provisions have no relevance, as was the case in Wilson (see Wilson at [53]).
Division 2B of Part 2 was introduced by the Native Title Amendment Act 1998 (Cth). The objective was to implement points 2 and 4 of the Commonwealth Government’s Ten Point Plan, in response to the High Court’s determination in Wik Peoples v Queensland (1996) 187 CLR 1 that the rights conferred by Queensland pastoral leases did not include a right of exclusive possession and did not completely extinguish native title: see Minchin N, The Ten Point Plan: Federal Government’s Response to the Wik Decision (Department of the Prime Minister and Cabinet, 1997); Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [5.1]. These points declared the Government’s intention that:
States and Territories would be able to confirm that “exclusive” tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.
…
As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralists.
Part 2 Division 2B includes the concept of a “previous exclusive possession act”, which is taken to extinguish native title completely: if attributable to the Commonwealth, by reason of s 23C(1); if attributable to a State or Territory, by reason of s 23E read with the applicable State or Territory legislation. See further Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [8]-[10].
Relevantly here the applicable State legislation is contained in s 20 of the Native Title (New South Wales) Act 1994 (NSW). It suffices to reproduce [43] of the primary judge’s reasons describing this provision’s effect and extracting the relevant parts:
In the case of New South Wales, s 20 of the [Native Title (New South Wales) Act 1994 (NSW)] picks up acts which are [previous exclusive possession acts] under s 23B of the NT Act [i.e., the Native Title Act] that are attributable to that State. Reflecting the terms of s 23C of the NT Act, s 20(1) of the [Native Title (New South Wales) Act 1994 (NSW)] provides that an act which is a [previous exclusive possession act] extinguishes any native title in relation to the land or waters covered by a freehold estate, a Scheduled interest as defined or a relevant lease and that the extinguishment is taken to have happened when the relevant act was done. Section 20(1) of the [Native Title (New South Wales) Act 1994 (NSW)] provides:
20Confirmation of extinguishment of native title by previous exclusive possession acts of the State (NTA, secs 23E and 23C)
(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.
The operation of these provisions was explained in Wilson at [48]-[49]:
The scheme of Div 2B was explained in Ward. The Division provides for the characterisation of certain “acts” as either “previous exclusive possession acts” (s 23B) or “previous non-exclusive possession acts” (s 23F). That characterisation then has consequences respecting extinguishment of native title. By force of s 23C, a “previous exclusive possession act” completely extinguishes all native title in relation to land (or waters) covered by that “act”. Section 23G, on the other hand, applies to “previous non-exclusive possession acts” and, in broad terms, provides for the partial extinguishment of native title. It should be emphasised that, whilst the expressions “previous exclusive possession act” and “previous non-exclusive possession act” are defined so as to apply to Commonwealth, State and Territory “acts”, ss 23C and 23G only have effect in respect of “acts” attributable to the Commonwealth. Provision is then made for States and Territories to legislate, subject to satisfaction of certain conditions, to the same effect as ss 23C and 23G in respect of all or any previous exclusive or non-exclusive possession acts attributable to the State or Territory in question (ss 23E and 23I).
Part 4 (ss 19-25) of the State Act was enacted in accordance with the power conferred by ss 23E and 23I of the NTA. The objects of Pt 4, as set out in sub-s (1) of s 19, are:
“(a) to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State, and
(b) to confirm the partial extinguishment of native title by previous non-exclusive possession acts attributable to the State.”
(Citations omitted.)
Sub-section 23B(1) of the Native Title Act provides that sub-s 23B(2) defines what is (and therefore also what is not) a “previous exclusive possession act”. Sub-section 23B(2) provides (relevantly to the issues on the appeal):
An act is a previous exclusive possession act 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);
…
(iv)an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);
…
(viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
Section 249C explains that a Scheduled interest is almost anything set out in Schedule 1 to the Native Title Act (the exceptions are not presently relevant), and anything otherwise declared to be a Scheduled interest by a regulation made in accordance with sub-ss 249C(2) and (3) (also not presently relevant).
Relevantly, cl 3 of Schedule 1 to the Native Title Act includes the following interests:
(3)A settlement lease (whether an original or an additional holding) under the Crown Lands Act 1895 [(NSW)] or the Crown Lands Consolidation Act 1913 [(NSW)], other than a lease that:
(a)permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and
(b)does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.
…
(8)A special lease under section 28A of the Western Lands Act 1901 [(NSW)] or section 75 or 75B of the Crown Lands Consolidation Act 1913 [(NSW)] 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.
Sub-section 242(1) of the Act defines “lease” 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.
Section 248A defines an exclusive pastoral lease to be a pastoral lease that confers a right of exclusive possession over the subject land or waters or is a Scheduled interest. Section 248 defines a pastoral lease to be a lease that permits the lessee to use the subject land or waters solely or primarily for maintaining or breeding sheep, cattle or other animals, or any other pastoral purpose, or contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes. The definition of exclusive agricultural lease is not presently relevant. The paragraphs in s 23B(2)(c) which refer to exclusive agricultural leases, and exclusive pastoral leases, were not invoked in the formulation of the separate questions.
The next point of relevance to the legal framework in which the present extinguishment issues arise is the New South Wales legislative regime, in its various historical iterations, which governed the grant and regulation of the eight types of statutory leases referred to in the separate questions.
The complexity of the legislation that has governed the alienation of Crown land in New South Wales is notorious: see Wilson at [125]-[127]. In the present case, this complexity is accompanied by difficulty in ascertaining the actual terms of the leases subject of the separate questions. For many of these leases, no instrument of lease was adduced before the primary judge, and key terms of the leases in question were inferred from Gazettal notices or legislative provisions.
Statutory control over the alienation of Crown land was first established in the Crown Lands Alienation Act 1861 (NSW) and the Crown Lands Occupation Act 1861 (NSW). This legislation, known as “Robertson’s Land Acts” in homage to their chief proponent in Parliament, was broadly aimed at organising the allocation of land in the then colony. It established a legal process for settlers to acquire tenure in the vast tracts of so-called ‘unoccupied’ land outside the original counties of the colony, which had come to be used by squatters for pastoralism without any proprietary interest conferred by formal government grant. After about two decades of regulation under Robertson’s Land Acts, the enactment of the Crown Lands Act 1884 (NSW) (CLA 1884) split the administration of Crown land into eastern, central and western divisions of the colony, and all legislation regulating Crown land dealings in New South Wales was effectively consolidated into one statute.
The CLA 1884 defined Crown land as “lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any of the Acts hereby repealed”, and proscribed its sale, lease, dedication or reservation except in accordance with the Act. The Act empowered the Governor of the colony to grant different types of leases over Crown land, including “scrub leases”, “homestead leases”, “pastoral leases” and other forms of “special leases”, subject to conditions imposed by or under the Act. This range of leases was modified and supplemented by subsequent legislation, from which the various statutory leases subject of the separate questions were derived. The statutory leases were granted for limited purposes and were made subject to certain restrictions, aimed at regulating the uses to which the land could be put.
A brief description of the leases in issue
The first category of statutory lease dealt with in the separate questions was the “scrub lease”, which was a form of tenure first introduced in the CLA 1884. Section 86 of that Act empowered the Minister for Lands to declare, on the recommendation of a statutory authority known as a “Local Land Board”, any Crown land covered by scrub or “other noxious undergrowth” to be “Scrub Lands”. Under s 87, parcels of Scrub Lands up to a certain size could be leased for terms up to a certain length, subject to “such conditions as to clearing and destruction of scrub as may be defined by Regulations”.
Two scrub leases were at issue before the primary judge, and on this appeal. Scrub Lease No. 287 was granted under s 35 of the Crown Lands Act 1889 (NSW) (CLA 1889) over 6000 acres of declared scrub lands, for a term of 21 years commencing on 23 September 1909. Fifty acres of land were surrendered in 1922, but the size of the grant was subsequently increased by 1640 acres and the term was extended by 7 years. Scrub Lease No. 416 was granted under s 77 of the Crown Lands Consolidation Act 1913 (NSW) (CLCA 1913) over 9700 acres of declared scrub lands, for a term of 21 years commencing on 12 May 1933. The lease was forfeited early, with effect from 7 June 1942. The CLA 1889 and the CLCA 1913 contained provisions similar to s 86 and s 87 of the CLA 1884.
The second category of statutory lease was the “settlement lease”, a form of tenure created under Part III of the Crown Lands Act 1895 (NSW) (CLA 1895). Section 24 of that Act enabled the Governor of New South Wales to set apart Crown land for various types of leases, including settlement leases. Land subdivided under s 24 was required to be parcelled into farms, whose size was limited according to whether the land was suitable for agriculture, or for pastoralism. Settlement leases granted under s 25 were subject to a statutory limit on the length of their terms, and lessees were required to fence and reside on the land, and keep it clear of pests.
Five settlement leases were in issue before the primary judge, but only two were at issue on appeal. Settlement Lease No. 1895/16 Coonamble was granted under s 25 of the CLA 1895 over 2910 acres of land, some of which contained tanks and fencing, for a term of 28 years commencing 12 December 1895. Part of the leased land was acquired for the construction of a railway, part was deemed surrendered to the Crown on an application for its conversion to a conditional purchase or a conditional lease, and the remainder was withdrawn on 13 March 1912, following the proclamation of the village of Armatree. Settlement Lease No. 1911/9 Nyngan was granted under s 25 of the CLA 1895 over 5870 acres of land, for a term of 40 years commencing on 5 January 1911. The relevant part of the leased land was surrendered on 14 November 1924.
The third category of statutory lease was the “improvement lease”, another form of tenure created under Part III of the CLA 1895. Section 26 of that Act empowered the Governor to grant leases of Crown land that could only be made “suitable for settlement” by “improvements” and “the expenditure of large sums” on those improvements. These leases were subject to statutory limits on the size of the land granted and the length of their terms, as well as a statutory requirement that the lessee covenant to improve the land subject of the lease.
Three improvement leases were in issue before the primary judge and on this appeal, each of which was granted under s 26 of the CLA 1895 for a term of 28 years. Improvement Lease No. 1161 Coonamble was granted over approximately 11,307 acres of land, which, at the time of grant, included a woolshed and yards, a tank and fencing. Improvement Lease No. 581 Nyngan was granted over an area of approximately 5249 acres. Improvement Lease No. 958 Nyngan was for an area of approximately 4477 acres.
The fourth category of statutory lease was the “homestead lease”, a form of tenure introduced under Part IV of the CLA 1884. Section 82 of that Act empowered the Governor to grant leases of Crown land in New South Wales’ Western Division, subject to statutory restrictions that included minimum and maximum size limits, fencing requirements and requirements that the lessee reside on the land for a minimum period of time (namely, at least six months during each of the first five years of the lease).
Two homestead leases were in issue before the primary judge and on this appeal. Homestead Lease No. 1244 was granted over 9190 acres for a term of 21 years commencing on 21 December 1892. Lot 7303 in deposited plan 766965, which comprises land that was the subject of Homestead Lease No. 1244, is now the subject of a coal mining lease, granted on 2 December 1993 and expiring on 24 June 2028. Homestead Lease No. 1478 was granted over 5760 acres for a term of 28 years commencing on 14 August 1895. This lease was converted to Western Lands Lease No 1446 on 21 February 1906, by which part of the leased area was withdrawn for public works.
The fifth category of statutory lease was the “18th section lease”, a form of tenure created by s 18 of the Crown Lands Administration Act 1903 (NSW) (CLAA 1903). By this mechanism, the holder of a pastoral lease was entitled at the lease’s expiration to an extended tenure over one third of the area of the pastoral lease, subject to conditions imposed by statute. Five 18th section leases were in issue before the primary judge, but none of those leases were at issue on appeal.
The sixth category of statutory lease was the “western lands lease”, a form of tenure created by the Western Lands Act 1901 (NSW) (WLA 1901). Two western lands leases were in issue before the primary judge, but only one of those leases was in issue on this appeal. Western Lands Lease No. 3469 was granted under s 39 of the WLA 1901 over approximately 109,511 acres of land for a term of 13 years and 10 months and subject to statutory conditions, including that the lease be used for pastoralism. This tenure was the last in a series of interests in the leased area that dated back to a pastoral run known as ‘Willandra’, which was converted to a lease in 1865. The term of Western Lands Lease No. 3469 was extended twice and did not expire until 20 November 1971.
The seventh category of statutory lease was the “special lease for a term”, a form of tenure first introduced by ss 86 to 92 of the CLA 1884. Section 90 of that Act prescribed that special leases for a term were to be granted for specified purposes, including for wharves, irrigation works, saw-mills, quarries and similar industrial development. Each of the special leases for a term that were in issue before the primary judge was granted under s 75 of the CLCA 1913. That provision imposed a statutory limit on the maximum term of the leases at 28 years, which was subsequently extended to 40 years and then effectively removed by an option to convert special leases for a term to leases in perpetuity. Regulations made under the CLCA 1913 set out a list of conditions that could be imposed on a special lease for a term, including 22 conditions that applied to a lease unless its Gazettal notice specified otherwise. To the extent they are relevant, these conditions are discussed further below.
Nine special leases for a term were in issue before the primary judge but, of these, only three were in issue on appeal. Special Lease No. 1939/1 Warren was granted over 36 acres for a term of 10 years and two months commencing on 1 November 1940. The purpose of the lease was limited to “access and storage”. Special Lease No. 1964/1 Coonamble was granted over approximately 35 acres for a term of 27 years, six months and 22 days commencing on 9 May 1965. The purposes of the lease were limited to “grazing and access to water”. Special Lease No. 1952/1 Warren was granted over approximately 36 acres for a term of 13 years commencing 1 January 1951. The lease was originally granted for the purpose of grazing and access. Its term was subsequently extended to 31 December 1990 for the amended purposes of “grazing, access and storage”.
The eighth and final category of statutory lease was the “special lease for grazing”, which also has its origin in ss 86 to 92 of the CLA 1884. By a Gazettal notification in 1894, “grazing” was declared to be a purpose specified in s 90 of that Act. Sub-section 3(f) of the CLCA 1913 declared that all purposes set out in s 90 of the CLA 1884 were valid purposes for which a lease could be granted under s 75 of the CLCA 1913, so that special leases for grazing could be granted under that Act, subject to the prevailing conditions imposed by the statute and its regulations.
Two special leases for grazing were in issue before the primary judge and on appeal. Special Lease No. 1908/51 Coonamble was granted over 40 acres for a term of 10 years commencing 1 January 1909. Its term was subsequently extended by six years to 31 December 1925. Special Lease No. 1957/6 Nyngan was granted over 105 acres for a term of 28 years from 1 January 1958. Lot 7002 in deposited plan 1020588, which comprises land that was the subject of Special Lease No. 1957/6 Nyngan, was subject to a licence for grazing at the time the State investigated the tenure of the land subject of the separate questions.
RESOLUTION: EXTENSION OF TIME AND LEAVE TO APPEAL
The parties proceeded on the basis that leave to appeal from the primary judge’s orders on the separate questions was required. It is correct that leave to appeal is required: see District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [9]. The underlying proceeding was an application under s 61 of the Native Title Act for a determination of native title in favour of the Ngemba/Ngiyampaa People. The answers to the separate questions did not determine the rights of the parties on that application, but rather determined the extent to which native title could be recognised by the Court over a small part of the claim area.
The State’s written submissions explained the State’s initial and then revised position about the need for leave to be sought, by reference to an affidavit filed by the State’s instructing solicitor – Ms Fegan – in support of the application for leave to appeal and extension of time:
As Ms Fegan explains at [13] and [16], although initially the State’s legal representative did not consider that leave to appeal was required, following the receipt of correspondence from the Respondent on 14 April 2021, it was accepted that the better view is that leave to appeal was required. By that stage, the notice of appeal had already been filed and served on the Respondent (this was done on 6 April 2021 [NB: the notice of appeal was stamped on 7 April 2021]). The application for an extension of time and for the grant of leave to appeal was then filed on 22 April 2021, ie, just over a week after the receipt of correspondence from the Respondent.
The State submits that, having accepted that the better view was that an application for leave was required, it moved fairly quickly to file its application for the grant of such leave (and an extension of time).
The State relied on the summary of the correct approach set out recently by the Full Court in C Pty Ltd v Sommer [2021] FCAFC 87 at [37]:
Leave to appeal will be granted if the decision is attended with sufficient doubt to warrant a grant of leave and substantial injustice would result if leave was refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 73 FCR 397 at 398. The discretion to extend time is to be exercised for the purpose of enabling the Court to do justice between the parties. An extension of time will be granted where there has been an acceptable explanation for the delay in bringing the application, there is no prejudice to the respondent in granting the extension and it can be shown that there is an arguable error in the decision in issue: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].
The way the three factors to which the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 referred are to be weighed and balanced will vary from case to case. The overriding consideration is, as the Full Court in Sommer explained, how the discretion should be exercised to enable the Court to do justice between the parties.
The respondents did not contend there was any prejudice in the extension of time being granted, and did not resist the grant of leave to appeal other than on the ground that the primary judge’s decision was not attended by sufficient doubt to warrant the grant of leave.
We accept the State’s submissions that at least some of the matters raised by its grounds of appeal may raise questions of significance to the determination of native title applications before the Federal Court throughout the State of New South Wales. We accept that some of the State’s contentions are arguable. We also accept there is a reasonable explanation for the delay, on the basis of Ms Fegan’s evidence. Therefore, to do justice between the parties, including settling by way of final appellate decision the questions of law and fact which will govern the recognition of rights in rem in any determination of native title, it is appropriate to extend time in which to apply for leave to appeal, and to grant leave to appeal, on the basis the State will rely on the Notice of Appeal filed on 7 April 2021.
THE PRIMARY JUDGE’S REASONS IN SUMMARY
The reasons of the primary judge are detailed and comprehensive. We do not propose to rehearse them here other than at a summary level. Where necessary we address the details of the primary judge’s reasoning in our consideration of each of the grounds of appeal.
Three observations about the primary judge’s reasons and the grounds of appeal should be made at this point.
First, the primary judge’s reasons included some preliminary observations which were material to some of his Honour’s conclusions, and set out a summary of general principles concerning extinguishment. None of those parts of the primary judge’s reasons were challenged in the grounds of appeal. Nor was the primary judge’s summary of the parties’ submissions impugned. The primary judge also made the following observation at [27]:
There is another consequence of the antiquity of all the land grants or reservations in the present proceeding which pre-date Mabo (No 2). Although the parties have gone to considerable lengths (particularly the State, which carries the evidentiary burden), to adduce relevant evidence concerning those tenures, there are unavoidable gaps. It is not suggested that these gaps reflect upon the diligence or thoroughness of the searches which have been conducted by the various parties into the historical records. The volume of material which has been provided to the Court testifies to the contrary. Rather, my point is to emphasise that the task of fact finding is rendered more difficult in a proceeding such as this where relevant events span more than a century and Government and other official record keeping over that period may not be as thorough, or accessible, as is the case with more recent materials.
The State did not challenge this observation, or the need for the primary judge at various points in his reasoning to draw an inference or inferences, because there was no direct evidence available.
Second, the primary judge dealt with each category of lease individually. As he did so, he set out the agreed facts about each lease, other matters about the leases, the history of that category of lease, additional factual matters his Honour considered relevant and the parties’ specific contentions about the category of lease. Having set out all those matters, his Honour then expressed conclusions about each individual lease within each category of lease. Some of the reasoning becomes more summary towards the end of the judgment, but that is to be expected and is unremarkable, given that the factual and legal issues are themselves repetitive. With respect, his Honour gave detailed and careful consideration to all matters pertaining to the questions asked in respect of each lease. We emphasise this because, as his Honour said at the start of his reasons, at [30]-[31]:
Before proceeding to summarise other general relevant principles it is important at the outset to emphasise that the issues which fall for determination in the present proceeding cannot be resolved by a “tick the box” exercise. Although helpful guidance is provided by various authorities, particularly Wik, Ward and Anderson, careful attention needs to be paid to the terms of legislation which is the source of the grant or vesting of a relevant land tenure, as well as the individual terms of any instrument concerning such a tenure.
Each case necessarily turns on its own individual facts, including the relevant terms and conditions of any particular land tenure, the relevant terms of the legislative regime and any relevant preceding legislative history. There is a grave danger of falling into error if the relevant issues are sought to be resolved simply by “cherry-picking” certain aspects of decided cases and transposing those individual aspects into a different factual and statutory context.
We respectfully agree. Moreover, the State’s contentions on the appeal bore the hallmarks of “cherry-picking” at many junctures. By “cherry picking”, we refer to the State’s approach of fastening on one factor or feature put forward by the State or identified by the primary judge, and taking it out of the context of the Court’s overall reasoning. Such an approach did not persuade us of any error in the approach taken by the primary judge. The whole of the reasoning of the primary judge on each lease, measured against his Honour’s explanation of the applicable principles which was not challenged, needs to be assessed in order to decide whether an appellable error is proven.
Third, the primary judge gave some prominence in his reasons to whether a grant of tenure to a third party could be described as “precarious”. As his Honour said (see for example Ohlsen at [51(5)]), this is a description taken from the High Court’s reasons in Ward. To take some key passages from Ward illustrating how the concept was used, at [170], the plurality said:
The rights obtained under a pastoral lease were limited. Such a lease:
“[gave] no right to the soil, or to the timber, except to such timber as may be required for domestic purposes, for the construction of buildings, fences, stockyards, or other improvements on the lands so occupied.”
The interest obtained was precarious. It could be forfeited for non-payment of rent or for failing to comply with its terms and conditions. If the lease was forfeited for failure to pay rent, or for some other failure to comply with its terms and conditions, it was to be offered at auction. Importantly, s 106 of the Land Act 1898 provided that:
“such lease shall immediately determine over any land which may be reserved, sold, or otherwise disposed of under this Act, or under the Goldfields or Mineral Lands Acts.”
(Citations omitted.)
And then at [184]:
Chief among those reasons is the recognition of the fact that the exercise of native title rights and interests on Crown lands was not an unlawful or unauthorised use liable to penalty under the penal provisions of the then applicable Land Act or Land Regulations. The grant of a precarious interest in Crown land, for limited (pastoral) purposes, subject to extensive reservations and exceptions permitting entry on the land in a wide variety of circumstances and, in some circumstances, by anyone, is not to be understood as rendering unlawful what was previously a lawful use of the land by native title holders.
At [355]:
Unlike a pastoral lease, however, the interest granted by a special lease was not precarious. There was no general provision which would determine the lease upon reservation, sale or its other disposal by the Crown. Nor were there provisions applicable to special leases that were equivalent to s 106 of the Land Act 1933 which, in the case of pastoral leases, reserved to the Crown the right to depasture stock and gave to “any person” the right to pass over any part of the land that was unenclosed or, if enclosed, was unimproved. As the Full Court rightly held, the statutory reservation in favour of Aboriginal peoples did not apply to a special lease, even if that special lease were for the purpose of grazing.
(Citations omitted.)
Callinan J dissented in relation to the use of this concept: see [702]-[703].
The primary judge employed the description “precarious” in much of his reasoning about the specific leases. For example, at [110], in a passage which typifies his Honour’s method in making findings about each of the individual leases, and in relation to one of the scrub leases:
The conditions which attached to Scrub Lease No. 287 derived from various sources, including the CL Act 1889, regulations and the terms of the lease instrument itself. Scrub Lease No. 287 contained the following conditions (which the applicant submits indicate that the lessee held a “precarious interest” similar to the case with a pastoral lease):
(a)The lessee was required to destroy box ironbark and gum seedlings and suckers, specified wattle and other scrubs.
(b)The lessee was required to preserve emu, warrior, cherry, dwarf, oak, and currant bush scrubs. The lessee was also to preserve currajong, belar, wilga, she-oak, berrigan, and rosewood trees. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs for stock-feeding purposes.
(c)The lessee was required to preserve pine box and iron bark trees of a certain dimension and useful for fencing, mining, or building, or railway sleepers, but was entitled to cut and use any timber for fencing or other improvements in the lease area.
(d)The lessee was otherwise to destroy all trees and saplings by ringbarking or otherwise.
(e)The lessee could not cut or remove any timber for sale.
(f)The lessee was to begin operations within 3 months, doing a particular amount each year, and once cleared, was to keep the lease clear.
(g)The lessee was to take effective steps to destroy rabbits, wallabies, wild dogs, dingoes, wild pigs, foxes and other noxious animals, and to continue to do so during the term of the lease.
(h)The lessee was not to overstock the land either wholly or in part.
(i)The lessee was required to fence the eastern boundary of the land with a substantial netting fence.
(j)The lessee was to provide a sufficient water supply for the full stocking of the land by the excavation of a tank or the construction of a tank or dam.
(k)The lessee was to maintain all Crown improvements.
(l)The Governor could at any time withdraw any land from the lease required for mining, mining purposes, residential lease, saw-mill site or for any public purpose. The Governor could withdraw the whole or any part of the lease at any time for the purposes of settlement in the event of a railway or tramway being constructed within 20 miles of the lease. After 10 years, the Governor could withdraw the whole or any part of the lease for settlement. Subsequently, after the term of the lease was extended, the Governor could only do so if the Minister was of the opinion the land could be profitably occupied for agricultural purposes. In no case was the lessee entitled to compensation, other than for improvements on the land withdrawn.
(m)Any holder of a miner’s right following the occupation of a miner or prospector could graze on the lease horses or other animals necessary for their subsistence and for carrying on mining or prospecting.
(n)The lessee could not sublet without the Minister’s consent in writing.
(o)The lessee could not cultivate the land without the Minister’s consent in writing.
(p)All public rights in roads were preserved.
(q)The lease was deemed to be a lease for pastoral purposes within the meaning of the Mining Act 1906 (NSW) and as such was subject to the operations of that Act.
(r)All persons authorised to do so were to have full right to enter the land for the purpose of cutting and removing timber, without interference by the lessee, and the lessee was to provide convenient gateways and openings where required. The lessee was to permit timber getters to camp and graze their teams over the lease.
(s)Any person authorised by the Survey Branch of the Lands Department could access Trigonometrical Reserve 39,226 in the lease area.
(t)If any condition was not complied with the lease was liable to forfeiture.
(Emphasis original.)
At trial, the State had made submissions on the limitations of using such a concept, and at a general level the primary judge accepted that submission (at [118]):
Finally, the State contended that there was little utility in approaching the relevant issues by reference to the question whether a Scrub Lessee’s rights were “precarious” or by application of the notion that exclusive possession refers to a landholder’s right to exclude everyone and anyone for any reason or no reason. This was because, in the modern world, virtually all land tenures are subject to third party rights, some held by private parties and others held by government agencies, which erode a landholder’s level of control. This particular contention should be accepted (see Introduction at [65]), at least at the level of generality at which it was put.
Nevertheless, ‘precariousness’ is a concept which features prominently in the primary judge’s reasoning on each specific lease. On appeal, under some of the grounds, the State criticised the primary judge’s fact-finding on whether the interests granted by a specific lease could be described as “precarious”. The State did not submit, nor could it given the passages in Ward to which we have referred, that an inquiry which employed the concept of “precariousness” for the purposes of deciding whether the grant of an interest had extinguished native title was erroneous.
THE SCOPE OF THE APPEAL
The State has not appealed from the primary judge’s findings about all of the leases in issue at trial, including findings which were unfavourable to the State’s contentions in whole or in part. There are many examples where the reasoning of the primary judge about the effect of the grant of some leases, from which there is no appeal, is not materially different from his Honour’s reasoning on the effect of those leases from which there is an appeal. There is thus inconsistency in the State’s approach which has been left unexplained. Whilst that approach may be the subject of general disapproval, we deal with each finding challenged on its individual merits.
There is no appeal from the primary judge’s orders in relation to any of the 18th section leases in Schedule 5 of the separate questions. In relation to each of the 18th section leases, the primary judge concluded that they did not confer “a right of exclusive possession over particular lands or waters”, within the meaning of s 23B(c)(viii) of the Native Title Act.
There is also no appeal from the primary judge’s conclusion on several settlement leases, even though there were conclusions adverse to the State in the answers to the separate questions about Scheduled interests and exclusive possession.
(a)Settlement Lease No. 1898/39 Nyngan. There was no appeal made in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that part of the area covered by the lease had been converted to Conditional Lease No. 1927/15 Nyngan, and this had the effect of wholly extinguishing all native title in the land and waters covered by that part of the lease.
(b)Settlement Lease No. 1911/2 Nyngan. There was no appeal in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that part of the area covered by the lease had been converted to Conditional Lease No. 1929/4 Nyngan, and this had the effect of wholly extinguishing all native title in the land and waters covered by that part of the lease.
(c)Settlement Lease No. 1909/3 Coonamble. There was no appeal in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that the grant in 1936 of a lease in perpetuity had the effect of wholly extinguishing all native title in the land and waters covered by this lease.
Next, there was no appeal against the primary judge’s conclusions in relation to Western Lands Lease No. 11935. The primary judge found that, while the grant of this lease was the grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act, it did not confer a right of exclusive possession over particular lands or waters within section 23B(2)(c)(viii) of the Act.
In the category of special leases for a term (Schedule 7), there was no appeal from the primary judge’s findings in relation to Special Lease No. 1955/7 Warren. The primary judge found the grant of this lease conferred “a right of exclusive possession over particular lands or waters”, within the meaning of s 23B(2)(c)(viii) of the Native Title Act, such that the act of granting or vesting that special lease was a “previous exclusive possession act” within the meaning of s 23B of the Act. His Honour also found the grant of this lease had the effect of wholly extinguishing all native title.
In the Schedule 7 category, there are five other special leases about which there is no appeal from the primary judge’s findings: Special Lease No. 1961/48 Warren; Special Lease No. 1958/2 Coonamble; Special Lease No. 1924/16 Walgett; Special Lease No. 1952/6 Coonamble; and Special Lease No. 1957/42 Nyngan. For all of them, the grant of the lease was found in Ohlsen to fall within one of the categories in s 23B(2)(c) of the Native Title Act (it presently does not matter which), to have conferred a right of exclusive possession and therefore to have wholly extinguished native title in the area covered by the lease. We note the primary judge accepted the State’s arguments that two of these leases were “commercial leases” within the meaning of s 23B(2)(c)(iii) Native Title Act: see [600]-[607]; [615]-[619].
Finally in relation to Schedule 9 of the separate questions, and the question about Canbelogo Common, the primary judge found that neither the reservation of the land as a “temporary common” under s 101 of the CLA 1884 or under s 39 of the CLA 1889, nor the appointment of trustees for the land, nor the operation of any legislation which applied to the land conferred a right of exclusive possession so as to extinguish native title over the reserved land. There is no appeal from those findings.
THE APPEAL
There are 108 grounds of appeal. Most of them are expressed in a conclusory way, identifying the finding alleged to be erroneous, but with no articulation of why the finding is said to be erroneous. When the State’s written submissions in support of the appeal were received, the State focussed on what it described as “overarching errors” in the primary judge’s findings, without identifying the grounds of appeal to which these overarching errors were said to relate. The notice of appeal itself contained no reference to “overarching errors”. The Court requested the State provide a document linking its written submissions with the grounds of appeal. The State did provide a table in response to this request, which has been of some assistance. Nevertheless, even during oral argument it was, as the Court observed, difficult to understand how the State’s submissions related to particular grounds of appeal.
It is not apparent that the description of a group of errors by the primary judge as “overarching” is appropriate. Few of the errors in the grounds of appeal can be described as errors of legal principle. Many concern the application of established principle to the facts. As the argument developed orally, it appeared that what was being said was that there was a category of errors that were said to be common to the primary judge’s findings about a number of individual leases, or categories of lease. We understand that to be what the State meant by the use of the term “overarching”.
Ultimately, the Court will decide the appeal on the basis of the grounds of appeal as they are articulated. If the State’s submissions stray beyond the grounds of appeal, or were not in reality able to be tied back to the grounds of appeal, submissions of that kind are unlikely to be able to establish error on the part of the primary judge, as the error is alleged in the grounds of appeal. Particularly in a complex appeal with so many grounds, there is a responsibility on the moving party to ensure that its submissions are plainly tied to the way the grounds of appeal are expressed. Otherwise, the discharge of the appellate task becomes impracticable.
THE STATE’S SUBMISSIONS IN SUMMARY
Where necessary, we return to the detail of the State’s submissions in particular in explaining our resolution of the grounds of appeal. What follows is a summary of the way the State’s contentions were put, with particular reference to how they were put in oral argument. Not all grounds of appeal were developed in any detail in writing, or orally. Therefore, this summary concentrates on what senior counsel developed in oral submissions. The respondents generally defended the reasoning of the primary judge and therefore only the points developed by the respondents that went beyond the primary judge’s reasoning will be set out below.
By using the table provided by the State, we have attempted to match each heading with the grounds of appeal said by the State to include that argument.
In contextualising the primary judge’s reasoning, the State began its case with some general submissions about exclusive possession and how the existence of reservations and conditions should, or should not, affect its contention that the leases in question conferred a right of exclusive possession. It submitted that exclusive possession has sometimes been described as a right to exclude anyone and everyone for any or no reason (e.g., Western Australia v Brown[2014] HCA 8; 253 CLR 507 at [36]). However, the State submitted that the concept of exclusive possession “has never been given a literal interpretation”, as the primary judge recognised at [65] of Ohlsen. In oral argument, senior counsel for the State also contended that what was said in Brown at [36] could not be taken “literally”. Indeed, in the State’s submission, reservations and conditions, either in a common law lease or a statutory lease, implicitly confirm the existence of exclusive possession. It was submitted that these sorts of conditions and reservations include reservations for the Crown’s mineral rights and mineral exploration rights, restrictions on the taking of timber or destroying of trees, the authorisation of entry by public officials for specific purposes, restrictions on interference with roads or tracks and permission for the withdrawal of land from the lease for various purposes.
In support of these submissions, the State took the Court to the dissenting reasons of McHugh J and the dissenting reasons of Callinan J at [551] and [707] (respectively) in Ward:
551The grant under the 1864 Regulations also reserved the right of “aboriginal natives” to enter upon the land “for the purpose of seeking their subsistence therefrom in their accustomed manner”. But this reservation did not negative the grant of the legal right to exclusive possession. Indeed, that reservation was about as clear an indication that the pastoral lessee had the legal right to exclusive possession as could be imagined. The reservation was necessary to prevent the lessee from excluding the Aboriginal natives. Unless the lease had given the lessee the legal right to exclude all others, the reservation would be irrelevant. The same comment can be made in respect of reservations that allowed third parties to enter the demised premises for various purposes. Anyone at that time who thought that such reservations were inconsistent with the legal right to exclusive possession simply did not understand the law relating to leases. No doubt then, and certainly now, few leases drawn by conveyancers did not contain one or more reservations and exceptions. But as Glenwood Lumber Co v Phillips, Dalton v Eaton, Whangarei Harbour Board v Nelson, Goldsworthy Mining Ltd v Federal Commissioner of Taxation and numerous other cases show, the reservation of a right of entry to the grantor or others is not only consistent with, but indicative of, the grantee having the legal right to exclusive possession. To reject that proposition would be to deny the efficacy of the work of generations of conveyancers who have never doubted that they were creating leases although the instrument of grant contained extensive reservations and exceptions in favour of others. Exceptions and reservations are not inconsistent with the right of the grantee to exclude any person who does not come within an exception or reservation. They are not inconsistent with the right of the grantee to bring ejectment or sue for damages for trespass to land. Exceptions and reservations do not put the grantee in the position of a licensee who, by definition, cannot bring an action for ejectment or trespass to land but must depend on his or her contractual rights.
…
707In Goldsworthy Mining Ltd v Federal [Commissioner] of Taxation, the appellant there also sought to claim taxation deductions for improvements on leased land. The Solicitor-General for the Commonwealth argued that the taxpayer was not a lessee because the instrument did not confer a right of exclusive possession and was therefore not a lease. In support of this argument, the Solicitor-General pointed to several extensive reservations and limitations on the purported lessee’s rights. These included a reservation in favour of the Crown, its agents, invitees and licensees to pass, repass and to navigate vessels in or over the demised premises; a reservation of all minerals and petroleum on or below the surface of the premises; a requirement that the lessee permit the Crown and any vessel to use any part of the premises for navigation, anchorage or other purpose incidental to shipping; and a requirement that the lessee would consent to the granting of easements or rights in or over the premises as might from time to time be necessary for the overall development or use of the harbour of Port Hedland. Despite the breadth of these reservations, Mason J found that they were compatible with a right of exclusive possession. As he explained:
“Although these provisions restrict the use to which the [lessee] may put the premises and impose obligations of an important kind, in my view they are not inconsistent with existence of a right of exclusive possession in the [lessee]. Indeed the provisions assume the existence of that right. Some of the provisions are novel but their introduction is explicable by reference to the relationship of the premises to the navigable channel which it underlies and to the harbour of Port Hedland.”
These cases demonstrate that substantial reservations and qualifications on a lessee’s rights do not by any means point to an absence of exclusive possession. They also demonstrate that there are no closed categories of leases or of provisions that may be contained in them. As ways of life, of commerce, of grazing, of cultivation, of using land generally have changed and will continue to change, so too will the arrangements of lessors and lessees to give effect to those changes. The ingenuity of conveyancers is constantly called upon in any sophisticated society to devise terms adapted to the particular circumstances of that society and commercial activity conducted within it. A modern lease of a store in a large suburban drive-in shopping centre, with its strict requirements, de facto profit sharing between lessee and lessor, expanded rights of entry for the lessor, and obligations imposed as to trading hours, would look to a nineteenth century conveyancer a rather different creature from a lease of a country estate in England, or a nineteenth century London building lease. The presence of exceptions and reservations in forms adapted to particular times and circumstances should not, and does not, of itself have the consequence that what the parties have described and treated as a lease is not to be regarded as a lease and does not confer exclusive possession (save, of course, to the extent expressly reserved or excepted).
(Citations omitted, emphasis added.)
In the State’s submission, the reasoning of McHugh and Callinan JJ in that case was consistent with that of the majority. Although the State acknowledged that the reasons of Gaudron J in Wik at 145 considered conditions and reservations on the leases in that proceeding to be an indication that exclusive possession was not conferred, the State directed the Court to [202]-[203] of Callinan J’s reasons in Wilson, in which his Honour expressed agreement with the minority in Wik that reservations do not tell against a right of exclusive possession.
The State submitted that the restrictions and conditions imposed on a number of the interests subject of the separate questions, but particularly Western Lands Lease No. 3469, were “effectively indistinguishable” from the restrictions and conditions imposed on the western lands lease that was determined in Wilson to have conferred exclusive possession. Although the primary judge distinguished the majority’s reasoning in Wilson on the basis that it was concerned with a perpetual lease, and although the State acknowledged that perpetuity of term would normally be an indication that a lease does confer exclusive possession, the State submitted that the reasons of Gleeson CJ and Callinan J in Wilson contained an expression of doubt that there is “any real juristic difference between leases for a term and perpetual leases”.
Errors described as “overarching” or common to more than one category of lease in issue
The use made by the primary judge of pastoral leases (Grounds 8, 21, 22, 38, 50, 51 and 13, 46, 59, 63, 67, 81, 88, 90)
The State submitted that the primary judge made assumptions about the rights conferred by generic leases for grazing or pastoral purposes. It submitted that the primary judge also made assumptions about the rights conferred by certain pastoral leases under the CLA 1884 and the CLA 1895. Central to the State’s submission was the proposition that it cannot be assumed that a pastoral lease will or will not extinguish native title; the answer to that question requires analysis of the nature of the relevant pastoral lease. In the State’s submission, the primary judge relied on those assumptions to conclude that the interests in question did not confer exclusive possession and, in doing so, his Honour failed to objectively inquire into the rights created by the relevant interests, as well as what should be drawn, or inferred, from some of the conditions or restrictions attached to the leases. At [3] of the State’s written submissions, these were listed as overarching errors “(i)” and “(ii)”.
For example, the primary judge erred, the State contended, by assuming that, because they were similar to pastoral leases, the scrub leases conferred rights that were capable of coexisting with native title rights. His Honour should not have assumed that a pastoral lease confers non-exclusive rights and therefore that the holder of a scrub lease had rights of a similar nature. The holder of a scrub lease was not restricted to using the leased area for grazing, because the responsible Minister at the time could consent to cultivation. The State advanced similar arguments in relation to the primary judge’s findings in relation to the improvement leases and the homestead leases.
Reliance on the size of the land covered by the leases (Grounds 11, 24, 37, 83)
The State submitted that the primary judge erred by relying on the size of the leased area as a significant factor in deciding whether the lease conferred a right of exclusive possession.
The State submitted that there is no part of the ratio in Wik to suggest that the size of a lease is relevant or at least significant to determine whether it conferred a right of exclusive possession. In support of this submission, the State referred to [196] and [714] in Ward. The State emphasised that the special lease for grazing considered in Ward was over 90,000 acres in size, and the High Court determined that it conferred exclusive possession. The State also submitted that size did not play a part in the majority’s reasoning in Wilson. While the State acknowledged that size played a part in Wik “in a handful of places”, it hastened to emphasise that the size of the leases in Wik (342,000 acres and 716,000 acres) was much greater than that of the leases subject of the separate questions.
Discounting of the lessee’s rights to bring actions in trespass (Grounds 15, 30, 41, 44, 54, 66, 79, 86, 92, 100, 106)
The State submitted that the primary judge erred by failing to consider, or give any weight to, the right of a holder of a special lease for a term to bring an action in trespass against wandering stock, which was recognised by s 130 of the CLA 1884, s 55 of the CLA 1895 and s 250 of the CLCA 1913: provisions that restricted the ability of a holder of a homestead lease or a special lease to bring an action in trespass unless the land trespassed upon was fenced. In the case of s 55 of the CLA 1895 and s 250 of the CLCA 1913, this restriction was on actions in trespass of stock. The State submitted that the provision recognised that there was a common law right to bring an action in trespass.
In support of this submission, the State directed the Court to Cleaver v Mackinnon (1910) 10 SR (NSW) 377, in which tenure granted under s 2 of the Crown Lands (Homestead Selections and Settlement Leases) Act 1896 (NSW) was held to confer a right to “take the necessary steps to eject any person who disputes” the tenant’s rights to possession of the land. The State also took the Court to Fergusson v Mackinnon (1912) 12 SR (NSW) 406, in which s 55 of the CLA 1895 – which the State characterised as similar to s 250 of the CLCA 1913 – was held to be predicated on a common law right to bring an action in trespass against stock. The State relied on Smith v Ward (2002) 20 SR (NSW) 299 in support of a submission that, because the CLCA 1913 was a consolidating Act, it was not intended to radically change the legislation that it consolidated.
The State submitted that where a right to bring an action in trespass is recognised in statute, that recognition is a good indication that exclusive possession has been conferred because it is only exclusive possession, or what it referred to as “legal possession”, which may found an action in trespass. A common law right to bring an action in trespass is incompatible and inconsistent with the continued recognition of native title rights, the State submitted.
The State advanced similar arguments in relation to the scrub leases, Settlement Lease No. 1895/16 Coonamble and Settlement Lease No. 1911/9 Nyngan, the improvement leases, the homestead leases and Western Lands Lease No. 3469.
Failure to address State’s arguments about the exclusion of express limitations on the rights of the lessees, the permission of persons to enter the lease area and provisions authorising the resumption of the lease area (Grounds 7, 16, 28, 36, 62, 68, 72, 94, 98)
The State submitted that the primary judge did not squarely address its argument at trial that the imposition of express statutory limitations on the rights of a lessee, the presence of provisions permitting officials and others, in some circumstances, to enter the lease area, and provisions authorising the resumption of land for public purposes were indicative of the conferral of exclusive possession. This contention appeared to align in principle with what the State had submitted about the effect of reservations and conditions, which we have summarised above.
We note that, although the State did not have a cross-reference in its table to these grounds, the following grounds appear to make the same, or a similar, argument: see grounds 6, 27, 58, 60, 61, 77, 103.
Reliance on factors which should have supported extinguishment, rather than no extinguishment (Grounds 13, 25, 35, 45, 49, 53, 59, 64, 81, 88, 89, 90, 101, 102, 107, 108)
This appeared to be another way of putting the same contentions we have already described – the State submitted that the primary judge considered certain factors, such as the requirement to take up residence or a requirement to fence, as supporting the absence of exclusive possession, when they actually suggested that exclusive possession had been conferred.
Discounting or failing to take into account the language used in the governing statute (Grounds 14, 40, 65, 80, 87)
The distinction the State sought to make before the primary judge by its emphasis on the fact that the legislation in question used the term “lease” rather than licence, was contended by the State to have been misunderstood or not appreciated by the primary judge. Despite the primary judge’s references to the State’s argument regarding the “nomenclature” (see, e.g., Ohlsen at [72] and [271]), the State submitted his Honour paid little or no regard to the language used in the governing statute and in the relevant lease instrument, and did not give any weight to the use of language typically associated with the grant of a lease at common law.
Alleged errors concerning specific leases
We set out here an overview of the errors alleged by the State to have been made by the primary judge specifically relating to one kind of lease. Again, this summary is taken largely from what was developed in oral submissions by senior counsel for the State.
Scrub leases (Grounds 1-16)
In a variation of the wider argument about the way restrictions and conditions should have been approached by the primary judge, the State submitted that the conditions imposed on the scrub leases indicated an intention to confer exclusive possession, because it would have been easier to comply with the conditions requiring the extermination and exclusion of vermin if one had control of access to the land. The State also submitted that the requirement that the land be fenced had a similar effect. The ability of a scrub leaseholder to apply for a “homestead selection” under s 27 of the CLA 1895 and s 193 of the CLCA 1913 was said by the State not to have been adequately taken into account by the primary judge, given that the State had submitted this was a “pathway to freehold”.
Again, in a variation of its overall contention about the irrelevance of the size of the land leased, the State submitted that the primary judge erred in assuming that, because they were granted over extensive areas of land, the leases were likely to confer rights that coexisted with native title rights. In the State’s submission, no such assumption could be made. The State relied on Wik, in which it was held that a court must examine the characteristics and terms of the lease before it, rather than making an a priori assumption about the purpose of the lease and its compatibility with native title rights (see Wik at 115-116, 152, 195 and 245).
The State pointed to the absence in the scrub leases of any reservation preventing the lessee from refusing access to the leased land by government officials and the public. The State emphasised that reservations of this kind in the mineral leases considered by the High Court in Brown were held to mean that the mineral leases in Brown did not confer exclusive possession. Since those reservations did not exist in the scrub leases, the primary judge erred in reasoning that the scrub leases did not confer exclusive possession because they were subject to the Mining Act 1906 (NSW).
The conditions on the scrub leases that deemed the leases to be pastoral leases under the Mining Act 1906 created a statutory fiction which demonstrated, the State contended, that the leases were not in fact pastoral leases and that, but for the condition, the lessee could have excluded miners and others from doing what they wanted on the land. The State submitted that conditions allowing authorised persons to enter the land to search for and obtain minerals were also found in the leases in Ward and Wilson and were common in grants of freehold title.
Special leases for a term (Grounds 69-94)
The State submitted that s 75 of the CLCA 1913, which permitted the granting of special leases for a term, permitted the grant of an interest that would ordinarily be taken to require a degree of control about entry to the land. In that respect, the State submitted, the special leases for a term were “just like the special leases in Ward”, which were determined to confer exclusive possession.
The State submitted that the conditions which applied to the special leases for a term that were at issue on appeal were not relevantly more precarious than the conditions applying to the two special leases for a term that the primary judge determined conferred exclusive possession.
The State submitted that several of the conditions which applied to the special leases for a term naturally implied that the interest was granted as a lease at common law. The State noted, by way of example, the restriction on transferring the special leases without the written consent of the Minister, except by way of mortgage or release of mortgage. The State contended that the imposition of such a restriction assumed that there was an underlying authority to transfer the special leases.
The State added that the right of the holder of a special lease for a term to apply for its conversion into a lease for perpetuity supported the conclusion that the special leases for a term conferred exclusive possession. In the State’s submission, it was unlikely that the legislature intended that an interest that did not confer exclusive possession could be converted into a lease in perpetuity. Senior counsel did acknowledge that the right to convert these leases was only introduced in 1968. Similar arguments were made about the entitlement of a special lessee to apply for conversion of the lease to a conditional purchase lease.
The extent of the land used for storage under Special Lease No. 1939/1 Warren was said to be another matter the primary judge gave too much weight. There was no basis, the State contended, for the primary judge’s inference that “lucerne or a similar crop” was stored on the land and no basis for his Honour’s inference that that storage “would not have taken up much of the 36 acres” (see Ohlsen at [583]). Reliance on such a factor was also erroneous because the question was not how the rights under the lease were exercised, but what rights were conferred by the lease instrument. The State submitted that the primary judge’s inferences were irrelevant.
The condition on Special Lease No. 1939/1 Warren that the leaseholder could not interfere with access to stock routes and tracks was also submitted to have been a factor on which the primary judge placed too much weight. The State submitted that stock routes were open only to limited use for restricted purposes, and the presence of a stock route did mean the rights conferred by the lease were less than exclusive possession. A similar contention was made about Special Lease No 1964/1 Coonamble. In oral argument, senior counsel for the State did acknowledge, however, that the objective purpose of the grant of an interest must be assessed in order to consider whether it is likely to bring with it a need for exclusive possession.
In the alternative, the State submitted that Special Lease No. 1939/1 Warren was a Scheduled interest. Many of the separate questions about the individual leases were posed in the alternative, with the category of “scheduled interest” being one the alternatives. In the State’s submission, this lease was granted solely or primarily for storage purposes and, therefore, fell within the definition of a Scheduled interest by operation of subclause 3(8) of Schedule 1 to the Native Title Act. Subclause 3(8) deals specifically with leases under the WLA 1901 or the CLCA 1913, and lists a very large number of purposes. The lease must be one that “permits the lessee to use the land or waters covered by the lease solely or primarily” for one of the specified purposes.
The State submitted that the primary judge’s determination that the lease was granted for “storage and access purposes” and therefore not “solely or primarily” for storage purposes, was erroneous, since there was nothing to necessarily preclude the leaseholder from using the land primarily for storage purposes.
The State submitted that the primary judge erred in determining that the conditions imposed on Special Lease No. 1952/1 Warren made that lease precarious. In the State’s submission, the requirement that the lease had to be used for a specified purpose and the fact that that lease would have been forfeited if the leaseholder had failed to erect and maintain a fence around the land could not support a determination that the lease was precarious in any material way. The State compared the lease with Special Lease No. 1955/7 Warren, which the primary judge determined was not precarious. The State also compared the lease with the prescribed leases in Ward, which would likewise have been forfeited if the leaseholder had not complied with the conditions imposed on them, but which were nevertheless determined to confer exclusive possession. Furthermore, the State submitted that the fact that there was a requirement to fence the land would favour a right of exclusive possession, not the contrary, especially since the primary judge had considered a requirement to fence the land subject of Special Lease No. 1958/2 Coonamble supported a finding of exclusive possession.
Special leases for grazing (Grounds 95-108)
These grounds related to Special Lease for Grazing No. 1908/51 and Special Lease for Grazing No. 1957/6.
The State’s contentions about these leases followed the same substantive form as its earlier submissions, namely that the primary judge erred by: not affording sufficient weight to the language used in the legislative provision under which the leases were granted, which the State submitted was suggestive of a common law lease; seeing restrictions as tending against rather than in favour of exclusive possession; not affording sufficient weight to the significance of references to a right to bring an action in trespass (even if only in the context of limiting that right) and the submission that the ability to convert the lease into a conditional purchase or a perpetual lease meant it was unlikely that the legislature did not intend it to confer exclusive possession.
Settlement leases (Grounds 17-30)
The primary judge’s error in respect of these leases was said to be his Honour’s failure to characterise them as Scheduled interests under the Native Title Act. The State submitted the terms of the leases did not preclude the land being used for agriculture or horticulture, and contended the primary judge erred in finding the lessees did not have permission to use the land solely or primarily for agriculture, especially since the primary judge had accepted that s 24 of CLA 1895 did not impose conditions or limitations on the use by the lessee of the whole of the land.
In the alternative, the State contended the primary judge erred in finding the settlement leases did not confer a right of exclusive possession. Again, the potential to use the leases for agriculture should have led to this conclusion, the State contended, rather than the focus being (as the State contended it was) on the fact the lease was used for grazing purposes.
Second, the State submitted that the conditions imposed on settlement leases to require the lessee to reside on the land and make it the lessee’s bona fide residence for the whole term of the lease, to fence the land, to keep the land free of pests, not to assign or sublet the land and to forfeit the land in the event of a breach of a condition were not incompatible with a right of exclusive possession. Such conditions all indicated that the land was supposed to be lived on. Consistently with other arguments on the appeal, the State also contended that the existence of a restriction (here, on assigning or subletting the land) implied that without such a restriction, the land could have been assigned or sublet. Assignment or sub-letting demonstrating, the State submitted, a right in the nature of exclusive possession, and rebutting any suggestion of ‘precariousness’.
Each of them must be understood in the context of the primary judge’s findings at [325]-[332] (plus the finding about trespass at [333]). It is appropriate to set out the whole of his Honour’s reasoning in these paragraphs:
First, it is beyond dispute that the purpose of creating Homestead Leases was to encourage leaseholders to live on, and improve, the land. That is not necessarily inconsistent with any native title rights relating to the land.
Secondly, the structure of the CL Act 1884 is significant. The object of Pt IV was to split up large pastoral runs (which were defined in s 4 as “Crown Land held under pastoral lease” at the commencement of the CL Act 1884). The provisions in Pt IV dealing with Homestead Leases came immediately after earlier provisions dealing with the division of pastoral runs (ss 70-77), the grant of pastoral leases (ss 78-80) and the grant of occupation licences for grazing purposes (s 81). Subsequent provisions in Pt IV provided for annual leases for pastoral purposes (s 85) and special leases (ss 86-92). Significantly, Pt IV also contained general provisions which affected all leases (see ss 96-98), including:
•liability to forfeiture for non-payment of rent or breach of any condition;
•a prohibition on lessees and licences taking timber other than for building or other purposes upon the leased land; and
•a prohibition on any lessee preventing duly authorised third parties from cutting or removing timber or material for building or other purposes or from searching for any mineral.
Thirdly, as mentioned above, the scheme of the legislation was to require the holder of a pastoral run to lodge with the Minister a written application for a pastoral lease, which involved splitting the applicant’s holding into two areas, one being the leasehold area and the other being the resumed area. The effect of s 77 of the CL Act 1884 was to entitle a runholder, on application, to occupy the resumed area under an occupation licence for the purpose of grazing. Apart from occupation licences, provision was also made for a Homestead Lease to be granted over that part of the pastoral run which was the “resumed area”, as well as Crown Land (ss 81 and 82 of the CL Act 1884). Not unimportantly, Homestead Leases could only be granted in the Western Division, being the most remote part of the State with generally the least arable land.
Fourthly, the primary substantive differences between a Homestead Lease and a pastoral lease related to the greater maximum size of the former lease under the CL Act 1884 (10,240 acres for the former lease (s 82), compared to 1,920 acres for the latter lease (s 85)); the requirement that the leaseholder enter into residence within 90 days after approval of the Homestead Lease (s 82(iii)); and that the leaseholder reside on the leased land for at least six months of each of the first five years of the lease (s 82(iv)) (amended to “six months of each year of the prescribed term of residence” under s 34 of the CL Act 1889). I accept the applicant’s submission that the evident legislative intention was not to provide Homestead Lessees with any greater interest than that of pastoral lessees.
Fifthly, as to the similarities between Homestead Leases and pastoral leases, under the CL Act 1884 the Governor was empowered to grant pastoral leases over leasehold areas in all divisions of the State, with a term of 15 years in the case of a pastoral lease in the Western District (s 78(i)). Provision was also made for the Governor to withdraw from a pastoral lease any land required for any public purpose, but with a related right to compensation (s 78(vii)). Once a pastoral lease expired or was forfeited or was surrendered, provision was made in s 79 for the land to be relet or subdivided and then made available again as a pastoral lease or, alternatively, the area could be declared to be a resumed area (s 79). The term of a Homestead Lease was also 15 years (s 82(i)) and, as the applicant correctly submitted, all provisions that applied to pastoral leases in the Western Division applied mutatis mutandis to a Homestead Lease (being terms relating to rent issuance, forfeiture, surrender, extension, “or otherwise” (s 82(ii)).
Sixthly, the close connection between Homestead and pastoral leases is reflected in the fact that the form used for the Homestead Leases was the same as those for any pastoral lease (see regs 103 and 132 of the Crown Lands Regulations 1889 and regs 183 and 188 of the Crown Lands Regulations 1895). Furthermore, under both the CL Act 1884 and CL Act 1889, holders of either a Homestead Lease or a pastoral lease could apply for a Scrub Lease over land within the external boundary of the Homestead or pastoral Lease (s 88 of the CL Act 1884 and s 35 of the CL Act 1889).
Seventhly, in the case of both a Homestead Lease and a pastoral lease, the Governor could withdraw any land required for any public purpose at any time (s 78(vii) of the CL Act 1884, read together with 82(ii) which, as noted above, applied all provisions pertaining to pastoral leases in the Western Division to Homestead Leases). In such a case, either kind of leaseholder was only entitled to compensation in respect of the land for the unexpired term of the lease and for improvements lawfully made on the land withdrawn (s 78(vii) of the CL Act 1884).
Eighthly, while it may be accepted that the legislature envisaged that Homestead Leaseholders would take up settlement and live on the land for lengthy periods, it should not be overlooked that the residency period was for only five years (or the “prescribed period” under s 34 of the CL Act 1889) and could be broken down to six months of each year (s 82(iv) of the CL Act 1884). This contrasts, for example, with the requirement under a Homestead Selection that the holder reside on the land in perpetuity (see s 17 of the CL Act 1895).
Finally, as to the State’s reliance on the fact that the holder of a Homestead Lease had a right under s 130 of the CL Act 1884 to bring an action in trespass (other than a wilful trespass), the significance of this right should not be overstated. It is notable, for example, that under s 130 of the CL Act 1884, the holder of a Homestead Lease could only bring an action in trespass if the leased land had been fenced as required. Moreover, under s 55 of the CL Act 1895 (extracted above), the holder of a Homestead Lease was not empowered to bring an action for trespass committed by stock or impound stock, unless the land trespassed upon had been enclosed with a fence reasonably sufficient to keep out stock. This strongly suggests that the actions in trespass contemplated by the legislation were directed to stock trespassing onto the land, rather than Indigenous people exercising native title rights. The right of the holder of a Homestead Lease to bring an action in trespass was limited to circumstances where the trespass was wilfully caused.
Location
The State submitted the primary judge erred in taking into account that homestead leases could only be granted in the Western Division of New South Wales, which the primary judge described as the most remote and least arable part of New South Wales. It was an error for his Honour to see this as ‘not unimportant’ in assessing the precariousness of the homestead leases.
This error was said to be apparent from the last sentence of [327] of Ohlsen:
Not unimportantly, Homestead Leases could only be granted in the Western Division, being the most remote part of the State with generally the least arable land.
With respect to the State, seeking to elevate a single sentence in a judgment of this size and complexity to an appellable error was not an appropriate method for the State of New South Wales to adopt.
In any event, that single sentence reveals no error. Remoteness was a factor some judges in Wik considered: see the reasons of Gaudron J at 154, and the reasons of Kirby J at 232-233. As to the primary judge’s description of the Western Division, his Honour had a basis in the evidence for this description, which he had explained in more detail at [430]:
First, it is appropriate to highlight some aspects of the legislative history to the Western Lands Act 1901. It was introduced following a report of a Royal Commission into the condition of Crown tenants in the Western Division of the State, as referred to by Gaudron, Gummow and Hayne JJ in [Wilson] at [70]. The Royal Commission made recommendations concerning the special problems surrounding land settlement in the dry western-fringe of the State.
And this at [431]:
The following passage from the second reading speech to Bill which became the Western Lands Act 1901 highlights the problems presented by much of the land in the Western Division which was unimproved, uninhabitable and unsustainable without improvement (see [Wilson] at [71]):
[W]e are told in a way that we cannot doubt that there is hardly a solvent man in the western division. If this be true it means that to bring the western division into a state to carry stock there must be money expended upon it whether in water conservation, clearing, or scrubbing, and if these men [the present settlers] have no money, they must borrow to enable them to carry on. When a man lends money he naturally asks upon what security he is making the loan, and if the applicant can say, ‘Here I have an absolute lease for forty-two years, and at the very most I am assessed at three or four acres to a sheep, and no matter what Government comes in or what Parliament may be sitting, the greatest rental they can put upon me is 7d per sheep,’ then the man who contemplates lending the money can calculate his security. That is an absolute security, and the man who has money to lend knows what he is lending it upon.
By these references, picked up later in the passage about the homestead leases, his Honour was doing no more than explaining the objectives behind the lease system in this part of New South Wales at the time, and the context for the legislative grants. The material his Honour referred to involved no “subjective” judgment, contrary to the submissions of the State.
Residence
This error was said to be apparent from [325], [328], [331] and [332] of Ohlsen.
It is apparent from [325] that the primary judge well understood that leaseholders were to be encouraged and, for part of the period of the lease, required to live on the land they leased. There is no authority for the proposition that, merely because a leaseholder resides on leased land used for pastoral and grazing purposes, permission to reside is an unequivocal indication of conferral of a right of exclusive possession. Especially so where, as here, the requirement that the leaseholder reside on the leased land was a part-time residence requirement – for at least six months of each of the first five years of the lease. It is not to be suggested that the proper character of the grant of a homestead lease varied depending on whether the lessee is in residence, or is not. Rather, the correct question is whether, by imposing that residence requirement, in the context of the other features of that particular lease, there was an intention the lessee should be able to exclude anyone and everyone for any reason or no reason, as described in Brown.
The primary judge was correct to answer that question in the negative. As his Honour pointed out at [325], the objective was to encourage the lessee to live on and improve the land, but the leased land was land that had been split off from pastoral runs (see [326]), with only part of the split off area being available as a homestead lease and the rest available under an occupation licence for grazing only.
Further, the State’s criticism of [332] should be rejected. In this paragraph, giving the eighth feature or factor which underpinned his Honour’s characterisation, the primary judge referred to the fact that, while the legislature may have envisaged that homestead leaseholders would take up settlement and live on the land for lengthy periods:
it should not be overlooked that the residency period was for only five years (or the “prescribed period” under s 34 of the CL Act 1889) and could be broken down to six months of each year (s 82(iv) of the CL Act 1884). This contrasts, for example, with the requirement under a Homestead Selection that the holder reside on the land in perpetuity (see s 17 of the CL Act 1895).
Contrary to the State’s written submissions, this passage does not amount to the primary judge seeing only leases granted in perpetuity as capable of conferring a right to exclusive possession. It is but one further indication of precariousness – a limited and part-time residence requirement over, proportionally, a small amount of the period of the lease. There is no error in this approach.
The State’s contentions should be rejected.
Reservations such as withdrawal
This error was said to be apparent from [331] of Ohlsen:
Seventhly, in the case of both a Homestead Lease and a pastoral lease, the Governor could withdraw any land required for any public purpose at any time (s 78(vii) of the CL Act 1884, read together with 82(ii) which, as noted above, applied all provisions pertaining to pastoral leases in the Western Division to Homestead Leases). In such a case, either kind of leaseholder was only entitled to compensation in respect of the land for the unexpired term of the lease and for improvements lawfully made on the land withdrawn (s 78(vii) of the CL Act 1884).
As one of numerous factors relied upon for the characterisation, we see no error in this finding, and the State’s submissions did not develop how the finding was erroneous, beyond the “overarching” contentions put about the primary judge’s approach to limitations and reservations.
Improvement leases (Grounds 31-41)
Most of the State’s grounds of appeal relating to improvement leases (grounds 31-41) have been addressed in the matters we have explained to this point in our reasons. As to the specific contention about the primary judge considering the “intrinsically inferior” nature of the land subject of the improvement leases as a factor indicating that exclusive possession was not conferred, we see no error in his Honour examining the character of land over which the lease was granted, since that character is inherent in the character of the lease itself as an “improvement” lease. The “inferior quality” of the land subject to improvement leases was a description contained in s 26 of the CLA 1895: see Ohlsen at [258]. Section 26 described the land as “not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improvement thereof”. In his reasoning at [284], the primary judge did no more than echo the description from the statute as but one indicator that the improvement leaseholder’s rights were capable of co-existing with any native title rights such that the grant of such leases did not confer a right to exclusive possession.
Western lands leases (Grounds 55-68)
Subject to one matter, the same is true of the Western lands lease.
The one matter we have not considered to this point is the State’s submission that, in relation to the Western lands lease, the primary judge erred in the significance he attached to the reservations and limitations set out at ground 59 in the notice of appeal, and explained at [437] of his Honour’s reasons. The State submitted many of these features were also features of the leases in Wilson, and the distinguishing factor that the leases in Wilson were leases in perpetuity did not justify the primary judge discounting the similarities that otherwise existed between the leases in Wilson and the leases in issue in this proceeding.
Paragraphs [430]-[431], as we have identified above, are the part of the primary judge’s reasons where he explains some of the history and context for the granting of leasehold interests in the Western Division of New South Wales. At [432], and by reference to Wilson, the primary judge explains the rationale behind the grant of leases in perpetuity in this region, in short summary to increase the security of tenure enjoyed by the leaseholders and enable them to borrow against the leases.
His Honour went on (at [434]-[435]) to list a number of features, aside from the absence of a perpetual term, which contributed to the characterisation that what was conferred by the Western lands leases in issue were non-exclusive rights.
Contrary to the State’s submissions, the primary judge did not ‘discard’ the reasoning of the High Court in Wilson at [114]-[115]. His Honour’s emphasis in [432] on the perpetual feature of the leases accurately reflects the reasoning of the plurality in Wilson.
It is important to recall how those passages in Wilson were expressed, especially [115], where the plurality said:
The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non-observance of conditions is equivalent to the right of re-entry on breach of a condition subsequent attached to a determinable fee simple.
(Emphasis added.)
In other words, it was the conclusion at [112] that what had been created was “a tenure which, like freehold tenure, was to last “for ever” but the term “lease” indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents”, which led the plurality to conclude what was conferred was equivalent to a grant of fee simple: see [116]. It was this feature which led the plurality to compare the situation with Wik, where the leases lacked the “historical and conveyancing background” of the leases in Wilson, and which led their Honours in Wilson (at [117]) to describe a lease in perpetuity as a “substitute for the old Crown grant of the determinable fee simple”.
That is why, at [115], the plurality expressed the other reservations as “not inconsistent with” their principal conclusion. The primary judge understood the emphasis in Wilson. The State’s contentions should be rejected.
CONCLUSION
The appeal will be dismissed. The respondents did not submit there should be a costs order against the State, on the basis that the circumstances set out in s 85A(2) of the Native Title Act existed. Therefore, each party should bear its own costs of the appeal and there should be no order as to costs.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg, Mortimer and Jackson. Associate:
Dated: 16 March 2022
SCHEDULE OF PARTIES
NSD 292 of 2021 Respondents
Fourth Respondent:
JOHN SHIPP
Fifth Respondent:
NEVILLE MERRITT
Sixth Respondent:
DANIELLE FLAKELER-CARNEY
Seventh Respondent:
JASON FORD
Eighth Respondent:
HILARY WILLIAMS
Ninth Respondent:
DAVID CLARKE
Tenth Respondent:
PHILLIP SULLIVAN
Eleventh Respondent
COMMONWEALTH OF AUSTRALIA
Twelfth Respondent
BOGAN SHIRE COUNCIL
Thirteenth Respondent
BREWARRINA LOCAL ABORIGINAL LAND COUNCIL
Fourteenth Respondent
COBAR LOCAL ABORIGINAL LAND COUNCIL
Fifteenth Respondent
CONDOBOLIN LOCAL ABORIGINAL LAND COUNCIL
Sixteenth Respondent
COONAMBLE LOCAL ABORIGINAL LAND COUNCIL
Seventeenth Respondent
GILGANDRA LOCAL ABORIGINAL LAND COUNCIL
Eighteenth Respondent
GRIFFITH LOCAL ABORIGINAL LAND COUNCIL
Nineteenth Respondent
MURRIN BRIDGE LOCAL ABORIGINAL LAND COUNCIL
Twentieth Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Twenty First Respondent
NORTH WEST LAND CORPORATION ACN 163 612 351
Twenty Second Respondent
NTSCORP LIMITED
Twenty Third Respondent
NULLA NULLA LOCAL ABORIGINAL LAND COUNCIL
Twenty Fourth Respondent
NYNGAN LOCAL ABORIGINAL LAND COUNCIL
Twenty Fifth Respondent
WALGETT LOCAL ABORIGINAL LAND COUNCIL
Twenty Sixth Respondent
WARREN MACQUARIE LOCAL ABORIGINAL LAND COUNCIL
Twenty Seventh Respondent
WEILWAN LOCAL ABORIGINAL LAND COUNCIL
Twenty Eighth Respondent
A.H. WISE PASTORAL CO PTY LIMITED
Twenty Ninth Respondent
BREWARRINA CLAY TARGET CLUB INC
Thirtieth Respondent
JOHN BRYAN CHARLES EGAN
Thirty First Respondent
SHIRLEY VIDA GEORGE
Thirty Second Respondent
GAVIN GEOFFREY GREEN
Thirty Third Respondent
HE KATER AND SON PASTORAL CO PTY LTD
Thirty Fourth Respondent
M M WOODLOCK PTY LIMITED
Thirty Fifth Respondent
FRANK JOHN MCKILLOP
Thirty Sixth Respondent
MOUNT FOSTER PTY LIMITED
Thirty Seventh Respondent
PETER WILLIAM PEARCE
Thirty Eighth Respondent
RUSSELL BRUCE ORIEL AND JANICE MARGARET ORIEL
Thirty Ninth Respondent
CHRISTOPHER JOHN STANMORE
Fortieth Respondent
T.L. AND A.L. FISHPOOL
Forty First Respondent
WARRIE GRAZING PTY LIMITED
Forty Second Respondent
WAYNE JOHN WHILLOCK
Forty Third Respondent
RICHARD JOHN WOODLOCK
Forty Fourth Respondent
VIRGINIA ANNE WOODLOCK
Forty Fifth Respondent
WYNDERBRI PTY LTD
Forty Sixth Respondent
ACTWAY PTY LTD
Forty Seventh Respondent
COBAR MANAGEMENT PTY LTD
Forty Eighth Respondent
COBAR OPERATIONS PTY LTD
Forty Ninth Respondent
ISOKIND PTY LTD
Fiftieth Respondent
PEAK GOLD MINES PTY LIMITED
Fifty First Respondent
TRIAKO RESOURCES PTY LTD
Fifty Second Respondent
TRITTON RESOURCES PTY LTD
Fifty Third Respondent
AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR RFM RIVERBANK
Fifty Fourth Respondent
CARTOBA PTY LIMITED
Fifty Fifth Respondent
MALCOLM STANLEY HENWOOD
Fifty Sixth Respondent
KILFENORA PASTORAL CO PTY LIMITED
Fifty Seventh Respondent
PETER ARCHIBALD LAIRD
Fifty Eighth Respondent
KENNETH JOHN MAYMAN
Fifty Ninth Respondent
CHRISTOPHER GERARD NOONAN
Sixtieth Respondent
THE ROTO PASTORAL COMPANY PTY LTD
Sixty First Respondent
TELSTRA CORPORATION LIMITED
Sixty Second Respondent
BOBADAH PUBLIC HALL TRUST
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