Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2)
[2018] FCAFC 35
•16 March 2018
FEDERAL COURT OF AUSTRALIA
Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35
Appeal from: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587
Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938
File number(s): WAD 442 of 2017
WAD 444 of 2017Judge(s): NORTH, JAGOT AND RANGIAH JJ Date of judgment: 16 March 2018 Catchwords: NATIVE TITLE – s 47B of the Native Title Act 1993 (Cth) (the NTA) – whether petroleum exploration permits granted under State legislation are “mining leases” – permits held to be mining leases for the purposes of s 47B(1)(b)(i) of the NTA – s 47B excluded from operation – State’s appeal allowed
NATIVE TITLE – s 47B(1)(b)(ii) of the NTA – whether exploration permits mean part of claim area is covered by a permission or authority under which land is to be used for a particular purpose – consideration of nature and purpose of use and the extent of the land to be used under exploration permits – exploration permits do not satisfy s 47B(1)(b)(ii) – Commonwealth’s appeal dismissed
Legislation: Native Title Act 1993 (Cth) ss 47B, 228, 242, 243, 244, 245, 253, 247, 247A, 248, 248A, 249A
Mining Act 1978 (WA) ss 46, 63, 85, 113
Petroleum and Geothermal Energy Resources Act 1967 (WA) ss 15, 38, 90, 91B, 95, 97, 117
Cases cited: Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456
Banjima People v State of Western Australia (No 2) [2015] FCAFC 171; (2015) 328 ALR 637
BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl # 2) [2018] FCAFC 8
Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155
Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
Narrier v State of Western Australia [2016] FCA 1519
Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Date of hearing: 12 February 2018 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 40 Counsel for the Commonwealth of Australia: S Lloyd SC with N Kidson Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the State of Western Australia: P D Quinlan SC with C I Taggart Solicitor for the State of Western Australia: State Solicitor’s Office Counsel for Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2): S Wright SC Solicitor for Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2): Central Desert Native Title Services Ltd ORDERS
WAD 442 of 2017
BETWEEN: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Appellant
AND: HELICOPTER-TJUNGARRAYI (NGURRA KAYANTA & NGURRA KAYANTA #2)
First Respondent
STATE OF WESTERN AUSTRALIA
Second Respondent
JUDGES:
NORTH, JAGOT AND RANGIAH JJ
DATE OF ORDER:
16 March 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 444 of 2017 BETWEEN: STATE OF WESTERN AUSTRALIA
AppellantAND: HELICOPTER-TJUNGARRAYI (NGURRA KAYANTA AND NGURRA KAYANTA #2)
First RespondentSHIRE OF HALLS CREEK
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
NORTH, JAGOT AND RANGIAH JJ
DATE OF ORDER:
16 March 2018
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Attachment “A” to the orders of 15 August 2017 be amended as set out in Attachment “A” to these reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
These reasons for judgment explain why the orders made by the primary judge on 15 August 2017 consisting of a determination of native title under the Native Title Act 1993 (Cth) (the NTA) must be amended.
The State’s appeal
In Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 the primary judge had to resolve an issue about s 47B of the NTA, which provides that:
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
…
The State of Western Australia contended that two petroleum exploration permits, EP 451 and EP 477, granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the Petroleum Act), are “leases” for the purposes of s 47B(1)(b)(i) of the NTA, so that s 47B does not apply to the land the subject of those permits.
The primary judge held at [53] that he should apply the same reasoning as identified in Narrier v State of Western Australia [2016] FCA 1519, “with the result that neither of the petroleum exploration permits in issue before me constitutes a ‘lease’ for the purposes of s 47B(1)(b)(i)”.
Subsequently, the Full Court held that this aspect of the reasons in Narrier was wrong. In BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl # 2) [2018] FCAFC 8 North, Dowsett and Jagot JJ held that certain exploration licences granted under the Mining Act 1978 (WA) were leases as referred to in s 47B(1)(b)(i) of the NTA (at [46]-[81]).
As the notices of appeal and submissions of the parties in these appeals had been filed before the publication of the judgment in Tjiwarl, the parties were requested to provide further submissions dealing with the effect of the Full Court’s judgment. The State, and the other appellant, the Commonwealth of Australia, contended that Tjiwarl decided all issues with the consequence that the appeals should be allowed and the primary judge’s orders amended as they propose. Other than in one respect, the first respondent (the applicant claiming native title on behalf of the claim group), conceded that Tjiwarl was not distinguishable and accepted that this Court would be bound to follow it. Nevertheless, the first respondent otherwise submitted that Tjiwarl was wrong to the extent that it did not decide the issue which the first respondent wished to raise and, if it did decide that issue against the first respondent’s contention, Tjiwarl was plainly wrong and should not be followed by this Court. The issue is this. The first respondent proposed that Tjiwarl did not decide whether s 245 of the NTA, in referring to a mining lease as a “lease…that permits the lessee to use the land or waters covered by the lease solely or primarily for mining”, means only an instrument which permits the holder to so use the land to the exclusion of, or so as to limit, other concurrent uses under some other right, title or interest. According to the first respondent, it is only such an instrument which, by reason if its terms and the operation of the legislation under which it is made, excludes other concurrent uses that is a “mining lease” as defined by s 245 of the NTA. The petroleum exploration permits in this case, according to the first respondent, do not satisfy this requirement.
We disagree. The first respondent’s submissions do not accord with the subject of s 245 of the NTA, which is the definition of a particular kind of instrument, being a mining lease. By s 245 such an instrument is a lease which “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”. The focus of the provision is the activities which the instrument permits the holder (the lessee, a term defined in s 243(2) of the NTA to include the holder of a mining lease) to carry out. The definition of “mining lease” has nothing to do with the capacity of persons other than the lessee to use the land for other purposes under other rights.
As explained in Tjiwarl at [72]-[73], because “mine” is defined in s 253 of the NTA to include “explore or prospect for things that may be mined” and s 242(2) provides that in the case “only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory”, a permit authorising the exploration of land for things to mine is a mining lease. And, as noted, by s 243(2), a person who holds a mining licence, authorisation or permit is taken to be a “lessee”.
For present purposes, what is important to understand is that s 245 is concerned with the permission which the instrument asserted to be a mining lease grants to the lessee (noting also that “permits” in this context is defined by s 244 of the NTA to include permission which is express, implied or otherwise operates). If that instrument grants permission to the lessee to use land “solely or primarily for mining”, the instrument is a mining lease. This is so whether or not the instrument, by reason of its terms or the operation of the legislation under which it is granted, wholly or largely excludes any other use of the land. It may be accepted that a mining lease under the Mining Act carries with it rights of use and occupation under s 85 of that Act (and, as s 113 discloses, possession of land) which are not enjoyed by holders of an exploration licence. But the scheme of the NTA is different. The NTA contains expansive definitions of “mine”, “mining lease” and, for a “mining lease” of “lessee” which operate to ensure that any instrument which permits the holder of it solely or primarily to “mine” (in its expanded sense which includes explore or prospect) is a “mining lease” for the purposes of the NTA, whether or not such an instrument would be a mining lease for the purpose of the legislation under which the instrument was granted.
The scheme of Div 3 of Pt 15 of the NTA, which defines various kinds of leases, does not assist the first respondent. In particular, the fact that certain kinds of leases, in ss 247, 248 and 249A, are defined not only by the activities they permit but also what they say or the purpose for which they are granted, does not support the first respondent’s construction of s 245. As the State submitted, the key to understanding the different definitions is that some leases are defined only by reference to what the instrument permits the lessee to do (including s 245) and others are defined by reference also to either the way in which the instrument describes itself or the purpose of the grant. And, as the State also submitted, it is apparent that where exclusive possession is a necessary element of the rights granted by the instrument, that is expressly identified as, for example, in ss 247A and 248A of the NTA.
In Tjiwarl, as noted, the instruments were exploration permits under Div 2 of Pt IV of the Mining Act. Under the Mining Act, these instruments were not mining leases and did not carry the kind of rights under that Act which a mining lease carries. Nevertheless, as held in Tjiwarl at [65]-[81], those instruments were “mining leases” and thus “leases” under the NTA because they permitted the holder to use the land solely or primarily for the purpose of mining (under the expanded definition of “mine” in the NTA). We do not accept that Tjiwarl is wrong. To the contrary, we consider it correctly reflects the scheme of the NTA. We also do not consider that Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 suggests to the contrary. Ward concerned extinguishment. Tjiwarl and the State’s appeal concern statutory definitions. Those definitions must be given effect according to their terms.
The same reasoning must be applied to the petroleum exploration permits in the present case. In s 253 of the NTA, “mine” is also defined to include in sub-paragraph (b) of the definition, “extract petroleum or gas from land or from the bed or subsoil under waters”. Thus, sub-paragraph (a) of the definition, which refers to “explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c))”, means that a permit to explore for petroleum is a mining lease if that instrument permits the land to be used solely or primarily for exploring the land for petroleum. Subject to consideration of the effect of the conditions of the permits (on which the first respondent also relied to submit that there is no relevant permission), the petroleum exploration permits satisfy this requirement because, being grants under s 38(1) of the Petroleum Act, they permit the holder “subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area”.
Accordingly, and contrary to the first respondent’s submissions, it does not matter that the land remains unallocated Crown land available for other uses. Nor does it matter that the permits, reflecting s 117 of the Petroleum Act, contain an endorsement that the activities of other land users and occupiers are “not interfered with to a greater extent than is necessary for the reasonable exercise of the rights and performance of the duties of the holder”. The permits do not permit the lessee to use the land for any purpose other than exploring for petroleum and thus are instruments which permit the use of the land solely or primarily for mining. Nor can it be relevant that the permits cover a large area and, as the first respondent put it, contemplate relatively short term activities within the permit area at particular times. The permits permit the lessee to use the whole of the land only for mining, which is all that s 245 requires. And as discussed in detail below, the fact that the permits also contained a condition that the holder “shall not commence any works or petroleum exploration operations” in the permit area, except with and in accordance with the approval in writing of the Minister, does not take the facts outside the scope of the statutory criterion in s 245.
The Full Court’s decision in Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 is not authority to the contrary. Banjima, to the extent relevant, concerned s 47B(1)(b)(ii) of the NTA and the reference in that provision to a permission or authority “under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose” (as does the Commonwealth’s appeal in this matter, discussed below). In Banjima it was not argued before the primary judge or in the appeal that the various instruments in issue were a lease within the meaning of s 47B(1)(b)(i) (see [87]-[118]). So much is apparent from ground 4 of the appeal in Banjima, the ground dealt with in [87]-[118], which is recorded at [3] in these terms:
The Court erred in law in ruling that prospecting licences and exploration licences under the Mining Act 1978 (WA) were not “permission[s] or authorit[ies] … under which … part of the land or waters in the area is to be used for public purposes or for a particular purpose” pursuant to s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) and erred by not determining instead that there were no areas to which s 47B of the Native Title Act applied (Determination of Native Title, Schedule 4.2).
Insofar as the first respondent relied on the conditions imposed on the permits, it may be accepted that the permits must be construed as a whole and in the statutory context established by the Petroleum Act. Section 38(1) of that Act is noted above. Section 15(1) is also relevant, and is in these terms:
Subject to this Act and to any condition referred to in section 91B(2), but notwithstanding the provisions of any other Act or law, the authority conferred by section 38, 43D, 48C or 62 upon a permittee, holder of a drilling reservation, lessee or licensee is, by virtue of this Act, exercisable on any land within the permit area, drilling reservation, lease area or licence area, as the case may be, whether Crown land or private land or partly Crown land and partly private.
Section 91B(2) provides that a condition “subject to which a permit, drilling reservation, lease or licence is granted may include a condition prohibiting the holder from entering specified land within the permit area, drilling reservation, lease area or licence area”. The permits are subject to conditions which prohibit access to certain nominated blocks (which, as we understand it, are not within the area of the claim), with the result that the authorities which the permits grant are exercisable over all other land (including the land within the claim area). We do not propose to comment on the effect of any such condition if it applied to land within the claim area (in whole or part), because it has not been the subject of argument. For present purposes, it is enough to record our understanding that the prohibitions on access to parts of the land covered by the permits do not relate to the land within the claim area.
The conditions on which the first respondent relied to argue that the permits do not permit the lessee to use the land to which they applied are in these terms:
1 (1) Subject to sub-clause 2, during a year of the term of the permit set out in the first column of the following table, the permittee:
(a)shall carry out in or in relation to the permit area, to a standard acceptable to the Minister the work specified in the minimum work requirements set out opposite that year in the fourth column of the table;
…
(2) The permittee shall not commence any works or petroleum exploration operations in the permit area except with, and in accordance with the approval in writing of the Minister.
The table specifying the minimum work requirements includes actual physical works to the land in the form of exploration wells in the case of both permits.
It will be apparent that conditions 1(1) and 1(2) are concerned with different matters. Condition 1(1) imposes a requirement on the holder of the permit to carry out the minimum work identified to a particular standard. Condition 1(2) prohibits the holder from commencing any work except with, and in accordance with, the approval in writing of the Minister. As the first respondent would have it, condition 1(2) means that the permit does not permit anything. We disagree. Condition 1(2) concerns the commencement of work including the work which is required by condition 1(1). As the Commonwealth submitted, the conditions are complementary. They establish a scheme under which the holder, in effect, must obtain the Minister’s approval in writing to ensure that the holder can comply with condition 1(1). In other words, condition 1(2) does not remove the obligation in condition 1(1). Condition 1(1) remains and in order to comply with it, the holder would have to ensure that it obtained the Minister’s approval in writing to at least the minimum works as condition 1(2) contemplates. To the extent that the primary judge might have considered to the contrary at [92] of his reasons, we disagree. As the Commonwealth submitted, the contrary construction assumes that condition 1(2) renders condition 1(1) nugatory as a result of the opening words of condition 1(1) (“Subject to sub-clause 2…”). However, those words operate to ensure that condition 1(2) governs in the event of conflict (Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 at [119]). There is no necessary conflict between the conditions and thus both operate according to their terms unless and until some conflict arises (namely, expiry of the time requirements in condition 1(1)). In that event, the holder would be in breach of condition 1(1) (from which it is apparent that condition 1(1) remains an extant and enforceable condition, irrespective of condition 1(2)).
Contrary to the first respondent’s submissions, the significance of this is not merely that the conditions are not necessarily inconsistent. The significance is that condition 1(1) operates to oblige the holder to carry out the minimum works specified. The practical effect of condition 1(2) is to require the holder to apply for and obtain the Minister’s approval to the minimum required works in sufficient time to enable the holder to comply with condition 1(1), which compliance requires the carrying out of actual physical works on the land in the form of exploration wells. The first respondent’s suggestion that the condition 1(1) does not impose any such implied obligation on the holder because the Minister could unilaterally approve the works is unrealistic and thus unpersuasive. The fact that condition 1(1), read with condition 1(2), requires actual physical works to be carried out on the land is in contrast to the position in Banjima. While actual physical works to land may not be necessary to constitute the use of land (for example, Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493), such works are a use of land (in contrast to, for example, exploration by a mere aerial survey of land as in Banjima).
The instruments in Banjima were granted in a different statutory context and on different terms, as is apparent from [83]-[86] of the Full Court’s reasons. In Banjima, ss 46 and 63 of the Mining Act provided that the licences were subject to a condition that the holder “will explore for minerals and will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless the holder has lodged in the prescribed manner a programme of work in respect of that use and the programme of work has been approved in writing by the Minister or a prescribed official”. Apart from the general reference to “will explore for minerals” (an obligation which the instruments disclosed could be fulfilled without entering upon let alone using the land), the instruments in Banjima did not require works to be carried out on the land and prohibited the use of all ground disturbing equipment without approval. On this basis, and in the context of the question whether the instruments satisfied s 47B(1)(b)(ii) of the NTA (where the question is whether “…the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose”) the Full Court in Banjima said at [108] that “on the evidence to which the court was taken, there was no relevant permission or authority in existence at any relevant time for one category of use potentially permitted or authorised by each licence”. In the present case, where the permits require works to be carried out, albeit not before and in accordance with the Minister’s approval in writing, and in the context of s 245 of the NTA (where the question is whether the instrument “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”), the reasoning in Banjima is inapplicable.
Other aspects of Banjima must not be overlooked. The Full Court did not have the exploration licences before it, as noted at [85]. The Full Court had to infer that no mechanical equipment had been approved for use on any part of the land (at [86]). The Full Court was dealing with an argument that the words “is to be used” in s 47B(1)(b)(ii) meant “is permitted or authorised to be used” (at [87]). It was doing so in the face of evidence that the exploration under the instruments could be undertaken by aerial survey rather than use of the land (at [109]). Most importantly of all, perhaps, is that [108] of the Full Court’s reasons (relied upon by the first respondent and the primary judge) cannot be read in isolation. This because the Full Court also said this at [114]:
It follows that the Mining Act and the terms of the licences, including the conditions incorporated in them by that Act, did not require the lands and waters to which they applied to “be used for public purposes or for a particular purpose”. Rather, the licences amounted to a mere permission or authority to explore for minerals, including from the air. While the permission or authority in the licences extended to the whole of UCL areas 7 and 9 and part of UCL area 42, it did not identify any particular area or period of time, beyond the term of the licence, in which exploration had to occur. The licensee was not obligated to explore the whole of the licensed area. Thus, the whole licensed area was not to “be used” for any particular purpose under the licence, far less did the licences require the licensee to use that entire area for the purpose of exploration. Nor did the licences require any identified portion of the licensed area to “be used” for any particular purpose…
As noted, s 245 is not concerned with the concept of land which “is to be used”. It is concerned with permission to use land. The Commonwealth’s submissions, albeit directed to its appeal about s 47B(1)(b)(ii), felicitously undermine the first respondent’s argument. As the Commonwealth put it, it is one thing to accept that condition 1(1) is subject to condition 1(2), but “it is an entirely different matter…to construe the permits such that no obligation even arises under condition 1(1) unless and until an approval is granted…On that construction, the permittee could sit on their hands and do nothing for the term of the permit”. For these reasons we also agree with the Commonwealth that the primary judge erred at [93] in characterising the conditions as ones which took the works in condition 1(1) outside of the operation of s 90(1) of the Petroleum Act. Section 90(1) provides that:
Where a permit, drilling reservation, lease or licence is granted subject to a condition that works or operations specified in the permit, drilling reservation, lease or licence are to be carried out, the permittee, holder of the drilling reservation, lessee or licensee, as the case may be, shall commence to carry out those works or operations within a period of 6 months after the day on which the permit, drilling reservation, lease or licence, as the case may be, comes into force.
Condition 1(1) is a condition that works are to be carried out. Section 90(1) applies. The fact that by condition 1(2) works could not commence without the Minister’s approval in writing meant only that, practically speaking, the holder had to ensure that it obtained the Minister’s approval in writing in a time which would enable it to satisfy s 90(1). No other provisions of the Petroleum Act, such as s 90(2) (enabling the Minister to give an exemption from compliance with s 90(1)), s 95 (enabling the Minister to give directions, which the Minister has done and which require approval for exploration wells and geophysical and geological surveys) or s 97 (allowing a holder to apply for exemptions, suspensions and variations of conditions), leads to any different conclusion about the satisfaction of s 245 and thus s 47B(1)(b)(i) of the NTA.
For these reasons we do not accept the first respondent’s submission that the permits gave no permission to the lessee to use the land solely or primarily for mining but, rather, gave rise to “only potentially permitted uses”.
The State’s appeals therefore must be allowed and the primary judge’s orders amended as the State seeks. The State did not seek an order for costs, and thus no such order is made.
The Commonwealth’s appeal
The Commonwealth’s appeal, as in Banjima, concerns s 47B(1)(b)(ii) of the NTA.
It will be apparent from the discussion above that we disagree with the reasons of the primary judge at [92]-[95] in which his Honour concluded that conditions 1(1) and 1(2), as in Banjima, meant that it could not be said that any land “is to be used” under the permits. For the reasons given above, Banjima is distinguishable as on the facts of the present case, land is to be used under the permits because the permits require actual physical works to land to be carried out.
The remaining issues are what land is to be used and is any such use for a particular purpose? The first respondent otherwise submitted that the requirements of s 47B(1)(b)(ii) are not satisfied first because, as the primary judge appears to have accepted at [90]-[91], the permits do not require any actual physical works to land within the claim area and second because, as the primary judge also appears to have accepted at [98], exploration for petroleum is not a use for a “particular purpose” within the meaning of s 47B(1)(b)(ii) of the NTA.
The second issue, relating to the concept of a use for a particular purpose, may be disposed of without difficulty. We do not accept that the cases cited in [98] of the primary judge’s reasons, Banjima at [111], Banjima People v State of Western Australia (No 2) [2015] FCAFC 171; (2015) 328 ALR 637 at [25], [33] and [39], Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 at [187], or Griffiths v Northern Territory of Australia [2007] FCAFC 178; (2007) 165 FCR 391 at [160], support the conclusion that under the permits land is not to be used for a particular purpose. As explained above, Banjima (and thus Banjima (No 2) did not involve any use of land and thus no question of use for a particular purpose could arise. Further, in Banjima (No 2) the reasons at [38]-[39] make plain that the issue was use, not purpose. Alyawarr at [187] discloses that the generality of a reservation, proclamation, dedication, condition, permission or authority may mean that it cannot be said that under the reservation (etc) the land is to be used for a particular purpose. In Alyawarr the proclamation of a townsite, as the Full Court put it at [187], “encompasses a variety of potential but unascertained uses”. In Griffiths at [160], this aspect of Alyawarr is emphasised. Griffiths itself involved a similar instrument, a reservation of land for a town, and the Full Court thus applied Alyawarr. Apart from these cases, which do not support the conclusion that a permit requiring land to be used to explore for petroleum does not involve a use of land for a particular purpose, the first respondent relied on Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155. In Erubam, the relevant instrument involved a grant of land to be held “in trust for the benefit of Islander inhabitants”. Given the need for a use for a particular purpose in the relevant provision in Erubam, s 228(9)(c) of the NTA, such a grant, unsurprisingly, did not satisfy the statutory requirement.
The present case is different. By s 38(1) of the Petroleum Act the permits authorise the holder to “explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area”. The purpose of exploring for petroleum is a particular purpose, and is capable of involving the use of land. Provided the permits involve (as they do in this case) a requirement to use land for that purpose, we do not see how it can be said that the requirement of land which “is to be used…for a particular purpose” remains unsatisfied.
The first issue, relating to the concept of “the area” as it appears in s 47B(1)(b)(ii), involves more complex issues. Despite this, we consider one thing to be clear. As the Commonwealth submitted, while the word “area” in s 47B should be construed as having the same meaning wherever it is used, the land within such an “area” for the purposes of the provision is not necessarily the same. This is because “area” is described by reference to different criteria, including in s 47B(1)(a) by reference to the claimant application, in s 47B(1)(b)(i) in relation to the area not covered by a freehold estate or lease, in s 47B(1)(b)(ii) in relation to the area not covered by a relevant reservation (etc), in s 47B(1)(b)(iii) in relation to the area not subject to a resumption process, and in s 47B(1)(c) in relation to an area which was occupied by the claim group when the claim was made. Some of the complexities associated with the repeated use of the word “area” in s 47B were explored in Banjima at [93]-[99]. In particular, at [96] in Banjima, the Full Court explained why the “area” as it appears in ss 47B(1)(b) and (c) cannot mean the whole of the claim area as referred to in s 47B(1)(a).
Nothing in Banjima or Banjima (No 2) supports the proposition that merely because the reservation (etc) extends beyond the claim area, s 47B(1)(b)(ii) is incapable of being satisfied. If [91] of the primary judge’s reasons is to be understood as endorsing this proposition, then we would disagree with it. The reasoning in Banjima at [114] cannot be understood in isolation from the particular exploration licences the Full Court was considering, which did not require any land at all to be used. The Full Court was not suggesting that in order to find that the entirety of an area subject to a reservation (etc) is to be used for a particular purpose, the reservation must require use of each and every part of the land subject to the reservation. Nor, in any event, is that the question with which s 47B(1)(b)(ii) is ultimately concerned. The focus of the section is whether any part of the claim area is covered by a reservation (etc) under which that land is to be used for a public purpose or particular purpose. To answer that question, however, the relevant instrument must necessarily be considered in its entirety.
The difficulty is this. In some cases, the reservation (etc) may co-extend with the land in the area of a claim. In other cases, the reservation (etc) may extend beyond the area of the land in the claim. And in yet other cases, the reservation (etc) may cover only part of the area of the land in the claim and not cover any other land. Section 47B(1)(b) is a negative stipulation focusing on the land within the claim area which is not covered by or subject to any of the identified circumstances. Insofar as s 47B(1)(b)(ii) is concerned, the identified circumstance is that land in the claim area not be covered by a reservation (etc) of the requisite character. The character of a reservation (etc) which engages the negative stipulation is one under which the whole or any part of the land in the claim area is to be used for public purposes or for a particular purpose. The character of a reservation is not affected by the “whole or part” criteria. Those criteria make clear only that the negative stipulation is engaged if the relevant kind of reservation affects any part or the whole of the claim area. The reservation either does require that land is to be used for a particular purpose or it does not. Thus, it is not possible to posit that a reservation (etc), on the one hand, may require all of the land covered by the reservation to be used for a particular purpose and, on the other hand, not require the land within the claim area covered by the reservation to be used for a particular purpose. These propositions cannot co-exist.
Accordingly, the Commonwealth’s concern about the potential manipulation of claims does not arise. If any land in the claim area is covered by or subject to any reservation (etc), s 47B(1)(b)(ii) may apply. The section will apply if the reservation (etc) is one under which the land in the claim area which is covered by the reservation is to be used for a public purpose or particular purpose. The question is ultimately one of characterisation of the reservation (etc). In the present case, the characterisation is not straightforward because the permits:
(1)apply to a large area of land (extending well beyond the claim area);
(2)require exploration wells to be constructed on land within the permit area (that is, as we have said, the permits are ones under which land is to be used);
(3)authorise the exploration wells to be constructed on any part of the land apart from certain blocks where access is prohibited (which we understand not to be within the claim area); and
(4)do not require the exploration wells to be located on any specific part of the land and thus do not require them to be located on the land within the claim area.
The Commonwealth contends that these facts mean that the whole of the land the subject of the permits is to be used for a particular purpose so that, necessarily, all parts of the land (including the claim area) are also to be used for that purpose. As we have said, if the former proposition is correct, the latter necessarily follows. But the fact that we accept that the permits satisfy the requirement of permitting the lessee to use the land solely or primarily for mining and thus are mining leases engaging s 47B(1)(b)(i) does not mean that we necessarily accept that the permits are to be characterised as instruments under which the whole of the land the subject of the permits is to be used for a particular purpose. Further, the fact that we accept that land is to be used under the permits for a particular purpose also does not mean that we necessarily accept the Commonwealth’s proposition. Indeed, but for the way in which the arguments in the appeal were developed, we would not have dwelled on the concepts of “is to be used” or “particular purpose” separate from the claim area because the requirements of s 47B(1)(b)(ii) are best approached as a composite, the question being whether the reservation (etc) is one under which the whole or any part of the land in the claim area is to be used for a public purpose or a particular purpose. While we do not see how this task of characterisation can be undertaken without considering the reservation (etc) in its entirety, ultimately the focus of s 47B(1)(b)(ii) is whether any land in the claim area is to be used for a public purpose or a particular purpose or not.
We do not accept that the permits in the present case engage s 47B(1)(b)(ii). This is not because the permits extend to land outside the claim area. It is because we do not accept the Commonwealth’s characterisation of the permits as instruments under which the whole of the land the subject of the permits is to be used for the particular purpose of exploring for petroleum. Section 38 of the Petroleum Act undoubtedly means that the permits authorise such a use of the entirety of the land the subject of the permits (albeit subject to conditions excluding access to certain blocks, to which the authority under s 38 does not extend). But, as discussed above, an authority to do some act involving a use of land is not the same as a requirement that land “is to be used”. So much is also clear from Banjima.
The permits in the present case authorise the use of all of the land subject to the permits (including the claim area but excluding the blocks into which access is prohibited) for the particular purpose of exploring for petroleum. The permits in the present case also require some unidentified parts of the land the subject of the permits (which may or may not be in the claim area) to be used for the particular purpose of exploring for petroleum. Given the nature of the actual physical works to the land appear to be relatively confined (two exploration wells) and the land the subject of the permits authorised to be used is large, we are not satisfied that the permits may be characterised as ones under which the whole or any part of the claim area is to be used for the particular purpose of exploring for petroleum. They are permits under which some relatively confined part of the land the subject of the permits, which may or may not be in the claim area, is to be used for that purpose. Each case will turn on its own facts including the nature of the use, the purpose of the use, the extent of the land the subject of the permits, the extent of the claim area and the conditions or terms of the reservation (etc) and the legislation under which the reservation was granted. Beyond this, no more can be said.
We note finally that at [96]-[97] of his reasons the primary judge said his conclusions were supported by Ward at [217]-[242] so that land is used for a particular purpose if it is either required to be so used or other uses are excluded. We agree with the Commonwealth that the discussion in Ward concerns a different context and that the operation of s 47B(1) of the NTA is to be determined on the ordinary meaning of the language used, construed in the context of the NTA as a whole and not otherwise.
For these reasons, we consider that the Commonwealth’s appeal should be dismissed. The first respondent does not seek any order for costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Jagot and Rangiah. Associate:
Dated: 16 March 2018
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