Margarula v Northern Territory of Australia
[2016] FCA 1018
•24 August 2016
FEDERAL COURT OF AUSTRALIA
Margarula v Northern Territory of Australia [2016] FCA 1018
File number: NTD 6027 of 1998 Judge: MANSFIELD J Date of judgment: 24 August 2016 Catchwords: NATIVE TITLE – extinguishment – various steps taken in (1) the establishment of self-government of the Northern Territory; (2) the establishment of the Kakadu National Park; (3) the establishment and development of the Jabiru Township – consideration of whether any of those steps extinguished non-exclusive native title rights and interests in the area of the Jabiru Township Legislation: Northern Territory Acceptance Act 1910 (Cth).
Northern Australia Act 1926 (Cth)
Crown Lands Ordinance 1931 (NT)
Environment Protection (Impact of Proposals) Act 1974 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
National Parks and Wildlife Conservation Act 1975 (Cth)
Northern Territory (Self-Government) Act 1978 (Cth)
Lands Acquisition Act 1906 (Cth)
Northern Territory (Commonwealth Lands) Act 1980 (Cth)
Northern Territory (Commonwealth Lands) Bill 1980 (Cth)
Lands Acquisition Act 1955 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Racial Discrimination Act 1975 (Cth)
Telecommunications Act 1975 (Cth),
Telecommunications Amendment Act 1988 (Cth)
Evidence Act 1995 (Cth)
Native Title Bill 1993 (Cth)
Native Title Amendment Bill 1998 (Cth)
Northern Territory Crown Lands Act 1890 (SA)
Northern Territory Surrender Act 1907 (SA)
Real Property Act 1886 (NT)
Jabiru Town Development Act (NT)
Validation (Native Title) Act (NT)
Mining Act 1980 (NT)
Lands Acquisition Act 1955
Judicial Review Act 1991 (Qld)
Crown Lands Regulations (NT)
Control of Waters Ordinance 1938 (NT)
Wildlife Conservation and Control Ordinance (NT)
Mining Ordinance 1937 (NT)
Housing Ordinance 1959 (NT)
Misuse of Drugs Act 1971 (UK)
Cases cited: Western Australia v Ward (2002) 213 CLR 1
Hayes v Northern Territory (1999) 97 FCR 32
Western Australia v Brown (2014) 253 CLR 507
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Gumana v Northern Territory (2007) 158 FCR 349
Stow v Mineral Holdings (Australia) Pty Ltd (1979) 180 CLR 295
Russell v Pennings [2001] WASCA 115
Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Mabo v Queensland (No 2) 175 CLR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Commonwealth v New South Wales (1923) 33 CLR 1
Margarula v Minister for Resources and Energy [1998] FCA 48
Margarula v Minister for Resources and Energy (1998) 157 ALR 160
Pocock v Director of National Parks and Wildlife (2001) 110 FCR 419
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
Commonwealth v Maddalozzo (1980) 29 ALR 161
Re Piers Island Association and Area Assessor for Saanich and the Islands (1976) 71 CLR 270
Attorney-General (NT) v Hand (1991) 172 CLR 185
Griffiths v Northern Territory (2007) 165 FCR 391
Daniel v Western Australia (No 2) (2005) 141 FCR 426
Davis v Northern Territory Housing Commission (1984) 71 FLR 85
Telstra Corporation Ltd v Worthing [1997] NSWSC 622
Alyawarr, Kayteyte, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539
Akiba v Queensland (No 3) (2010) 204 FCR 1
Commissioner of State Revenue v Uniqema Pty Ltd [2004] VSCA 82
Rubibi Community v Western Australia (No 7) [2006] FCA 459
King v Northern Territory [2007] FCA 944
Griffith University v Tang (2005) 221 CLR 99
R v Clyne; Ex parte Harrap [1941] VLR 200
Date of hearing: 8-11 April 2013 Date of last submissions: 26 March 2015 Registry: Northern Territory Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 406 Counsel for the Applicant: S Glacken SC and CP Young Solicitor for the Applicant: Northern Land Council, Legal Branch Counsel for the First and Fourth Respondents: M Grant QC, Solicitor General and S Brownhill SC Solicitor for the First and Fourth Respondents: Solicitor for the Northern Territory Counsel for the Second and Fifth Respondents: G Kennett SC and N Kidson Solicitor for the Second and Fifth Respondents: Australian Government Solicitor Counsel for the Third Respondent: H Bowskill and D McCormick Solicitor for the Third Respondent: Cridlands MB Lawyers Counsel for the Sixth Respondent: The Sixth Respondent did not appear Counsel for the Seventh Respondent: The Seventh Respondent did not appear Counsel for the Eighth Respondent: G Hiley QC Solicitor for the Eighth Respondent: Ashurst Australia ORDERS
NTD 6027 of 1998 BETWEEN: YVONNE MARGARULA ON BEHALF OF THE MIRARR PEOPLE (JABIRU TOWNSHIP)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
24 AUGUST 2016
THE COURT DETERMINES THAT:
1.The native title rights of the Mirarr People over the area the subject of this application, broadly comprising the area of the Jabiru Township –
(a)have been extinguished to the extent that they are over areas which are the subject of subleases granted by the Jabiru Town Development Authority to non-Crown entities (as identified in the reasons for judgment);
(b)have been suppressed by reason of s 238 of the Native Title Act 1993 (Cth) to the extent that they are over areas which are the subject of subleases granted by the Jabiru Town Development Authority to Crown entities (as identified in the reasons for judgment); and
(c)to the extent that they have been so suppressed have been extinguished by the extensive public works carried on within the claim area by 23 December 1996 save to the extent that the areas over which such suppression exists comprise:
(i)the underground water line to the Kakadu National Park headquarters;
(ii)Lot 2321;
(iii)The Magela Creek sewage pipeline;
(iv)Lot 2371 save for the area of 7 hectares adjacent to the Manaburduma Jabiru Town Camp.
2.In relation to the area fixed as adjacent “land” in relation to Jabiru Drive (Lots 968, 1427, 2015, 2025 and 2032), and Arnhem Highway (Lots 2306, 2318 and 2319), the Applicant is given leave to apply within 12 months of the date of these orders to have all or any part of those Lots removed from or reduced within the adjacent area as determined.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MANSFIELD J:
THE ISSUE
At the time of the arrival of Europeans in Australia, the Mirarr People lived in central northern Australia. Their lands included the claim area of this application: the land that now comprises Jabiru, a township inside Kakadu National Park, and its immediate surrounds (the Jabiru land). According to their traditional laws and customs, the Mirarr People collectively held rights to possess, occupy, use and enjoy the Jabiru land to the exclusion of all others, subject only to those laws and customs. This much has been agreed by the parties to the present proceeding. For present purposes, but for the legislative and executive dealings with the Jabiru land since the settlement of Europeans, it is accepted that the Mirarr People should be recognised under the Native Title Act 1993 (Cth) (NTA) as having held those native title rights and interests over the Jabiru land, and as still holding those native title rights and interests.
The present broad question to be decided under the NTA is whether or not any of the executive and legislative acts since European settlement have had the effect of extinguishing the native title rights and interest of the Mirarr People over the Jabiru land, and if so the extent of that extinguishment.
BACKGROUND FACTS
In 1788, the “First Fleet” landed on the eastern coast of Australia and established the colony of New South Wales. In 1825, the borders of the colony of New South Wales were expanded by Letters Patent issued by the King: Letters Patent, 16 July 1825. The Jabiru land thereby fell within the colony of New South Wales. In 1836, another British colony was established in Australia, the colony of South Australia. In 1863, the boundaries of South Australia and New South Wales were altered so that the Jabiru land then formed part of South Australia: Letters Patent, 6 July 1863.
It was not until 30 January 1882, however, that the Jabiru land was for the first time put to any formal use by European colonists. In that year, two pastoral leases over the Jabiru land were granted by the Crown to Charles Brown Fisher, a prominent Melbourne-based pastoralist at that time, under the Northern Territory Land Act 1872 (SA) (1872 Act) and the Northern Territory Land Amendment Act 1876 (SA). The two leases together covered the entirety of the Jabiru land. In 1889, Mr Fisher surrendered the leases.
Then in 1892, two new pastoral leases were granted over the same land, pursuant to a new Act, the Northern Territory Crown Lands Act 1890 (SA) (1890 Act). The leases were granted to the bushman and explorer Harry Stockdale. They were cancelled two years later in 1894 for non-payment of rent. In 1895, one larger pastoral lease was granted over the same area, pursuant to the 1890 Act, to James Ebenezer Tonkin. Mr Tonkin's pastoral lease was cancelled only eight years later, in 1903.
From 1903 until 1937, no non-indigenous person held any rights over the Jabiru land. During that time, on 1 January 1911, the Jabiru land became part of the Northern Territory of Australia (the Territory), a territory of the newly-formed Commonwealth of Australia: Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth). In 1927, the Commonwealth split the Northern Territory into two administrative regions: North Australia and Central Australia: Northern Australia Act 1926 (Cth). The Jabiru land fell within North Australia. In 1931, however, the two regions were abolished and the Jabiru land again simply became part of the newly-recreated Territory.
In 1937, a grazing licence was granted over the Jabiru land by the Commonwealth to Edward Sawdy and Daniel Osborn, pursuant to the Crown Lands Ordinance 1931 (NT) (1931 CL Ordinance). In the next nearly 30 years, eight further grazing licences were granted over the Jabiru land to various other persons. None of these nine grazing licences lasted for a term of more than four years. The last one, which was held by Mudginberri Station Ltd (Mudginberri), expired on 30 June 1965.
The next day, 1 July 1965, an Occupation (Development) Licence (ODL) was granted over the whole of the Jabiru land to the same company, Mudginberri. The ODL was granted pursuant to s 108 of the 1931 CL Ordinance. The ODL gave Mudginberri the right to occupy the land for the purpose of taking and shooting of buffaloes, and the production of meat and hides from the carcasses of those buffaloes, and for any other purposes approved by the Administrator of the Territory. The ODL was surrendered by Mudginberri less than two years later, on 11 January 1967.
For the five subsequent years, no right or interest in the Jabiru land was granted by the Commonwealth to any person. Then in 1972, the Commonwealth declared land including the Jabiru land to be a sanctuary and a protected area under ss 14 and 22 respectively of the Wildlife Conservation and Control Ordinance (NT).
To this point, the nature and extent to which legislative or executive action may have impeded the existence and enjoyment of the traditional rights and interests of the Mirarr People over the Jabiru land is clean and uncomplicated.
In 1975, the Ranger Uranium Environmental Inquiry (Ranger Inquiry) was established to conduct an inquiry in relation to a proposal for the development of uranium deposits at sites near the Jabiru land (in accordance with s 11 of the Environment Protection (Impact of Proposals) Act 1974 (Cth)). The proposal had been made by the then Australian Atomic Energy Commission and Ranger Uranium Mines Pty Ltd. Pursuant to s 11(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), the Ranger Inquiry was also empowered to make findings for the purposes of the ALRA that groups of Aboriginals are entitled by Aboriginal tradition to the use or occupation of certain areas of land.
The Ranger Inquiry produced two reports.
On 17 May 1977, the Second Report of the Ranger Inquiry (Ranger Report) was published. The Ranger Report recommended that:
·a major national park be established over a large tract of land including the Jabiru land, with Aboriginal participation in its planning and management;
·a town be constructed within the new national park, and that the land for the proposed town not be granted as Aboriginal land under the ALRA, but become part of the national park;
·the rest of the relevant land including the Jabiru land other than the township be granted to an Aboriginal Land Trust under the ALRA; and
·the land grant to the proposed Aboriginal Land Trust and the establishment of the national park should occur before any substantial construction work is done on the Ranger uranium mine project.
On 25 August 1977, the Commonwealth Government announced that it accepted the principal findings and recommendations of the Ranger Report: House of Representatives, Parliamentary Debates, 25 August 1977, 645, 665-667. Amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) (NPWC Act) and the ALRA were subsequently introduced into Parliament on 10 April 1978. Both sets of amendments were passed and commenced on 9 and 23 June 1978 respectively. The NPWC Act amendments, inter alia, clarified that national parks may be declared over an area of Aboriginal land held under lease by the Director of National Parks and Wildlife (the Director). The ALRA amendments, inter alia, enabled areas around the Jabiru land to be granted to an Aboriginal Land Trust and then leased to the Director.
During this period, the Commonwealth Government had also determined that the Territory should become a self-governing territory of the Commonwealth. The Northern Territory (Self-Government) Act 1978 (Cth) (SG Act) was passed to achieve this. Parts of the SG Act, including s 70, commenced on 22 June 1978. The remainder of the SG Act, including the substantive provisions formally creating the Territory as a separate body politic, commenced on 1 July 1978. This Act meant that the Territory was established as a "body politic under the Crown by the name of the Northern Territory of Australia": s 5, which would now have its own institutions of self-government that would make its own laws, while still remaining a territory of the Commonwealth.
On the day of commencement, 1 July 1978, it was understood that the Territory acquired from the Commonwealth radical title to all the land within its territory. However, pursuant to ss 69 and 70 of the SG Act and a gazettal notice published on 29 June 1978 in accordance with those provisions, the Commonwealth acquired certain lands from the NT on the day the Act came into operation. Those lands included the Jabiru land.
Not long after, on 5 April 1979, the Governor-General declared by a proclamation published in the Commonwealth Gazette that an area including the Jabiru land was to be a park, and would be known as 'Kakadu National Park'. That declaration was made pursuant to s 7(2) of the NPWC Act. Upon that declaration being made, the Jabiru land was automatically vested in the Director of National Parks and Wildlife (Director), by force of s 7(7) of the NPWC Act. The Director later had the title to Kakadu National Park registered under the Real Property Act 1886 (NT) on 9 March 1982.
On 12 January 1979, the Jabiru Town Development Act (NT) (Jabiru TD Act) was passed. It established a statutory corporation, the Jabiru Town Development Authority (JTD Authority), which would be responsible for developing a town to be known as Jabiru on the Jabiru land: Jabiru TD Act, ss 3, 15(1)(a).
A number of licences were then granted by the Director to the JTD Authority between 14 June 1979 and 2 April 1981, pursuant to s 8D(2) of the NPWC Act. The licences permitted the construction of various works, amenities and buildings for the town of Jabiru. Then, on 29 June 1981, the Director granted a 40-year lease to the JTD Authority of the Jabiru land, pursuant to the NPWC Act (Township Lease).
In the subsequent years, the JTD Authority has granted various sub-leases to various entities for various purposes related to the development of the Jabiru Township. The earliest such sub-lease commenced on 1 July 1981, and the most recent in 1996. Most of the sub-leases were made to either Crown entities, in particular the Commonwealth and the NT Housing Commission, or to Energy Resources of Australia Ltd (ERA), a uranium mining company and subsidiary of the Rio Tinto group. ERA operates the Ranger uranium mine, which is eight kilometres east of the Jabiru Township. A few other sub-leases have been granted by the JTD Authority to other entities, generally businesses and churches.
From 1979 onwards, various works have been constructed in accordance with the various licences and sub-leases that have been granted over the Jabiru land. Many houses have been constructed, along with public amenities such as a fire station, sports and social club, swimming pool and related amenities, shops, and services such as roads, a sewage pump station, a bore, a telephone exchange, and for similar functions. The 2011 Census recorded the population of Jabiru at 1,129, with 630 private dwellings.
THE PRESENT PROCEEDING
In 1998, Yvonne Margarula (the Applicant), on behalf of the Mirarr people, filed an application in this Court for a determination of native title rights and interests over an area of land including the Jabiru area. This had become possible under the newly-passed NTA.
As noted, the parties agree that, prima facie, the Mirarr people hold native title rights and interests in respect of the Jabiru land within the meaning of s 223 of the NTA. The contested issue, however, is whether those native title rights and interests have been wholly or partially extinguished as a result of the various acts of the Crown since British settlement. Those acts have been briefly summarised above. The effect of those acts on the Mirarr people's native title rights and interests must now be ascertained.
Apart from the Applicant, five respondents made oral submissions at the hearing of this matter. They were the Territory and the JTD Authority (collectively, the NT Respondents), the Commonwealth and the Director (collectively, the Commonwealth Respondents), and ERA.
It is agreed by the parties that the Mirarr People originally had native title rights to possess, occupy, use and enjoy the Jabiru land to the exclusion of all others (the exclusive native title rights). It is also agreed by the parties that the exclusive native title rights have been extinguished as a result of grants of pastoral leases by the Crown in the nineteenth century.
It is also agreed by the parties that if the Mirarr people's native title has not been wholly extinguished, then the Mirarr People’s native title comprises the following rights, subject to the traditional laws and customs that govern their exercise:
(a)the right to travel over, move about and have access to the Jabiru land;
(b)the right to hunt and fish on the land and waters of the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;
(c)the right to gather and use the natural resources of the Jabiru land such as food, medicinal plants, wild tobacco, timber, stone and resin for personal, domestic, or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;
(d)the right to take and use the natural water on the Jabiru land;
(e)the right to live, to camp and for that purpose to erect shelters and other structures on the Jabiru land;
(f)the right to light fires on the Jabiru land for domestic purposes, but not for the clearance of vegetation;
(g)the right to conduct and participate in the following activities on the claim area:
(i)cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii)ceremonies;
(iv)meetings;
(v)teaching the physical and spiritual attributes of sites and places on the claim area that are of significance under the traditional laws and customs of the Mirarr people;
(h)the right to maintain and protect sites and places on the Jabiru land that are of significance under traditional laws and customs of the Mirarr people;
(i)the right to share or exchange subsistence and other traditional resources obtained on or from the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under traditional laws and customs of the Mirarr people;
(j)the right to be accompanied onto the Jabiru land by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Jabiru land;
(ii)people who have rights in relation to the claim area according to the traditional laws and customs acknowledged by the Mirarr people;
(iii)people required by the Mirarr people to assist in, observe, or record traditional activities on the Jabiru land.
(together, the non-exclusive native title rights)
THE PASTORAL LEASES
There is no dispute as to the effect of the various pastoral leases granted over the Jabiru land from 1882 to 1903. The Applicant accepted in a Notice of Voluntary Admissions dated 2 April 2013 that "the grant of each pastoral lease was inconsistent with and extinguished [the exclusive native title rights]" but that "the grant of each pastoral lease was not inconsistent with the continued existence, exercise or enjoyment of [the non-exclusive native title rights]." The Respondents do not challenge the latter proposition.
It is instructive to briefly explain how that conclusion has been reached by the parties.
Each of the grants is a previous non-exclusive possession act for the purposes of the NTA and the Validation (Native Title) Act (NT) (VNT Act).
"Previous non-exclusive possession act" (PNEP act) is defined in s 23F of the NTA. Relevantly, the definition includes acts that are valid, occurred before 23 December 1996 and consisted of the grant of a non-exclusive pastoral lease.
The pastoral leases certainly occurred well before 23 December 1996. As to the leases' validity, the Applicant in her written submissions suggested that ensuring the run was stocked (that is, that livestock had been put upon the relevant land) was a statutory precondition to the valid grant of the pastoral lease. However, that argument was not pursued at the hearing and the validity of the pastoral leases has now been accepted.
The pastoral leases fall within the definition of "pastoral lease" for the purposes of the NTA. The leases were expressly granted "for grazing and other pastoral purposes" (in the case of the 1882 pastoral leases) or "for pastoral purposes" (in the case of the other three pastoral leases): NTA, s 248.
The leases were also non-exclusive pastoral leases. The latter three pastoral leases were granted under the 1890 Act. Such pastoral leases were considered in Western Australia v Ward (2002) 213 CLR 1 (Ward HC) at 190-196 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Their Honours concluded that such pastoral leases "did not confer upon the lessee the right to exclude native title holders from the land": at 196. The latter three pastoral leases were therefore non-exclusive pastoral leases.
The 1882 pastoral leases, which were granted under the 1872 Act, were also non-exclusive pastoral leases. The 1882 pastoral leases contained the following exception:
RESERVING NEVERTHELESS AND EXCEPTING out of the said demise to Her Majesty Her Heirs and Successors for and on account of the present Aboriginal Inhabitants of the Province and their descendants during the continuance of this demise full and free right of ingress egress and regress into upon and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made.
The terms of this exception have the clear consequence that the 1982 pastoral leases did not grant rights of exclusive possession. The pastoral leases considered in Ward HC (which were granted under the 1890 Act) contained a very similar exception that was considered significant by the High Court in reaching the conclusion that those pastoral leases granted no right of exclusive possession: at 191.
Since the pastoral leases are PNEP acts, the next question to determine is to whom those acts can be said to be "attributable". Under the NTA, a PNEP act is attributable to the Territory if the act affected land or waters that now form part of the Territory, and it occurred when the Territory had not yet been established: s 23JA. That is obviously the case with the grants of the pastoral leases, as the Territory was not established as a body politic until 1978. So the pastoral leases are "attributable" to the Territory.
Part 3C of the VNT Act governs the effect of any PNEP act that is attributable to the Territory: VNT Act, s 9K. So Part 3C applies to the pastoral leases.
The effect of Part 3C can be summarised as follows: if a PNEP act "involves the grant of rights and interests that are not inconsistent with native title rights and interests", the native title rights and interests will not be extinguished, but if the rights and interests granted through a PNEP act are inconsistent with native title rights and interests, the native title rights and interests are extinguished: VNT Act, ss 9L, 9M.
The parties agree that the grants of the pastoral leases were inconsistent with the exclusive native title rights, but they were not inconsistent with the non-exclusive native title rights. That conclusion is in accordance with the established native title jurisprudence: see, eg, Ward HC at 131 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. That means, according to Part 3C of the VNT Act, that the grants of the pastoral leases extinguished the exclusive native title rights but not the non-exclusive native title rights.
THE GRAZING LICENCES
Nine grazing licences were granted between 1937 and 1965 under s 107 of the 1931 CL Ordinance. The parties agree that the grant of the grazing licences had no additional extinguishing effect upon the Mirarr People’s native title rights beyond the effect of the pastoral leases. That conclusion necessarily follows from the reasoning of Olney J in Hayes v Northern Territory (1999) 97 FCR 32 (Hayes). In that judgment, Olney J considered the effect of a grazing licence granted under s 107 of the 1931 CL Ordinance on native title rights. He concluded at 120 that it had no effect upon native title rights beyond that of a pastoral lease:
The right to graze stock on land under a grazing licence is not essentially different from the principal activity authorised under a pastoral lease, namely the grazing of stock. In neither case is it necessary that the licensee/lessee enjoy exclusive possession of the lands.
Thus, the non-exclusive native title rights survived the grants of the various grazing licences. The exclusive native title rights remained, of course, extinguished.
THE OCCUPATION (DEVELOPMENT) LICENCE
As noted above, an ODL was granted to Mudginberri on 25 June 1965 under s 108 of the 1931 CL Ordinance and Division 2A of the Crown Lands Regulations (NT) (CL Regulations), with effect from 1 July 1965 until its surrender on 11 January 1967.
Section 108 of the 1931 CL Ordinance provided:
(1)The Administrator or any person thereto authorised by the Administrator may, under and subject to the regulations, grant a licence to any person to occupy any particular Crown lands for the purpose of drying or curing fish, or for any manufacturing or industrial purpose, or for any other purpose prescribed.
(2)Licences granted in pursuance of this section may be for such period as is prescribed, but such period shall not exceed five years.
Section 131 of the 1931 CL Ordinance gave the Minister (defined by s 5 as "the Minister of State for the time being controlling the Northern Territory") the power to:
…make regulations not inconsistent with this Ordinance, prescribing all matters which by this Ordinance are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for the purpose of carrying out or giving effect to this Ordinance…
In accordance with s 131, the CL Regulations were made by the Minister. Part VII of the CL Regulations was entitled "Licences". Division 2 of Part VII was entitled "Occupation Licences". On 2 June 1965 (23 days before the grant of the ODL was made), Division 2A was added to Part VII. It was entitled "Occupation (Development) Licences". Division 2A provided that an occupation licence granted in respect of any land within a particular tract of land set out in a schedule (that included the Jabiru land) would be called an "Occupation (Development) Licence": regs 87B, 87C.
Regulation 87E described the character of an ODL:
An Occupation (Development) licence -
(a)authorizes the holder to use and occupy the land the subject of the licence for the taking and shooting of buffaloes, the production of meat and hides from the carcasses of buffaloes taken or shot and for such other purposes as the Administrator approves;
(b)may be granted for a period not exceeding five years;
(c)is subject to the payment of an annual fee calculated at a rate not exceeding two shillings for each square mile of the land in respect of which the licence is granted;
(d)shall be in accordance with Form 25 in the First Schedule; and
(e)is subject to such other terms and conditions as are determined by the Administrator and specified in the licence.
Division 2A contained a number of other provisions that assist in describing the nature of the rights conferred upon the holder of an ODL. Most relevant is reg 87K, which provided as follows:
(1)Subject to these Regulations and to any other law in force in the Territory, an Occupation (Development) licence confers upon the holder the right to exclude other persons from the land the subject of the licence.
(2)The last preceding sub-regulation does not authorize a holder of an Occupation (Development) licence to exclude a person from land which is a road within the meaning of the Control of Roads Ordinance 1953-1964.
Regulation 87F permitted an ODL holder to apply to the Administrator for permission to construct specified improvements on the relevant land, the ownership of which improvements (if permission were granted to construct them) would vest in the ODL holder. Regulation 87G provided that at the end of the term of the ODL, the improvements would vest in the Commonwealth, but the Commonwealth would pay compensation for those improvements. Regulation 87H gave the ODL holder the power to sell, transfer, mortgage or otherwise deal with the ODL, but only with the Administrator's consent.
Contentions
The Respondents contended that the grant of the ODL was wholly inconsistent with the continued existence of the non-exclusive native title rights, and therefore extinguished those rights at common law. In order to be recognised as native title rights and interests for the purposes of the NTA, those rights and interests must be recognised by the common law of Australia: s 223(1)(c). So if the grant of the ODL had the effect of extinguishing native title rights at common law, those native title rights are not capable of being recognised and protected under the NTA.
Alternatively, the Respondents contended that the grant of the ODL was a previous exclusive possession act (PEP act) as defined by s 23B(2) of the NTA. An act will be a PEP act if it took place on or before 23 December 1996, it is valid and it consists of the grant or vesting of any of a number of specified types of interests in land. The Respondents contended that the grant of the ODL occurred before 23 December 1996, is valid and consists of either a grant of a "commercial lease that is neither an agricultural lease nor a pastoral lease": s 23B(2)(c)(iii), or a grant of a "lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters": s 23B(2)(viii).
If the grant of the ODL was a PEP act, it was one attributable to the Territory: NTA, s 23JA; VNT Act, s 9NA. Section 9H of the VNT Act would then apply so as to extinguish the non-exclusive native title rights, leaving no remaining unextinguished native title rights.
The Applicant contended that the grant of the ODL did not extinguish the non-exclusive native title rights at common law, and was not a PEP act.
The primary focus of the submissions was the nature of the rights conferred upon the holder of the ODL, and whether those rights means that the grant of the ODL is wholly inconsistent with the continued existence of the non-exclusive native title rights. The Respondents argued that the grant of the ODL conferred upon the holder Mudginberri a right to exclusive possession in respect of the relevant land, or, in the alternative, at least a right to exclude others from the relevant land, and that either of those rights would be wholly inconsistent with the continued existence of the non-exclusive native title rights. That focus is, of course, consistent with the High Court decision in Western Australia v Brown (2014) 253 CLR 507 (Brown HC).
Given the ODL is a creature of statute, determining its consistency or otherwise with native title is a question of construction. The Respondents contended that reg 87K (which only applies to ODLs, not occupation licences generally) clearly confers a right of exclusive possession. The Applicant first contended in response that reg 87K does not use the clear and unequivocal language of "exclusive possession". She secondly contended that, when reg 87K is read with the terms of the ODL itself and the other relevant provisions of the 1931 CL Ordinance and the CL Regulations, it cannot be construed as conferring a true right of exclusive possession. She thirdly contended that reg 87K is expressly made subject to "any other law in force in the Territory", which includes the common law of Australia, which recognises native title rights.
The Commonwealth Respondents further contended that it is not only reg 87K that indicates that an ODL confers a right of exclusive possession, but also s 108 of the 1931 CL Ordinance, which confers a right to "occupy" the relevant land, and the other relevant provisions of the 1931 CL Ordinance and the CL Regulations construed as a whole. The Commonwealth Respondents argued that a right of exclusive possession is "inherent" in a right "to occupy" land. Reg 87K is therefore, in the Commonwealth's submission, no more than a clarification of the content of the right to occupy granted by s 108. The Applicant contended in reply that the word "occupy" does not necessarily suggest exclusive possession.
Consideration
In Hayes, Olney J considered at 121-122 the effect on native title rights and interests of the grant of several occupation licences pursuant to s 108 of the 1931 CL Ordinance. After discussing the relevant statutory provisions, His Honour found at 122 that:
…occupation licences are non-proprietary in nature and do not confer on the licensee a right to exclusive possession and do not extinguish native title.
However, Olney J was not required to consider the special type of occupation licence, the ODL, provided for in Division 2A of the CL Regulations. Alternatively, the Commonwealth respondents' argument based on s 108 of the 1931 CL Ordinance necessarily involves a contention that Hayes was wrongly decided on this point. That followed from the fact that s 108, inter alia, was considered by Olney J in his finding that an occupation licence conferred no right of exclusive possession.
I do not accept that the Commonwealth's broader argument that all occupation licences, by conferring a right to occupy, necessarily confer a right to exclusive possession.
In reaching his conclusion that occupation licences do not confer a right to exclusive possession, Olney J in Hayes applied R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (Meneling). In that case, the High Court determined that a grazing licence granted pursuant to s 107 of the CL Ordinance only conferred a "non-proprietary right of a personal nature" upon the holder: Hayes at 121. Olney J concluded in relation to the occupation licences that:
On analysis there is little to distinguish the rights conferred by an occupation licence from those conferred by a grazing licence. The reasoning in Meneling is equally applicable in the case of occupation licences…
For that reason, Olney J found that occupation licences conferred no right of exclusive possession upon the holder.
It is true that Olney J did not explicitly deal with the use of the word "occupy" in s 108 of the 1931 CL Ordinance in his consideration of occupation licences. It is also correct to say that the grazing licences considered in Meneling with which he drew an analogy did not grant a right "to occupy" land. As I do not draw too much from that decision. As was emphasised in Brown HC, the resolution of such issues depends on the rights granted by the particular instrument.
In my view, the use of the word "occupy" does not inherently involve a right to exclusive possession. In Ward HC, McHugh J explained at 228 that:
Possession and occupation - even sole occupation - are different concepts. … In Chrystall v Ehrhorn [1917] NZLR 773, Edwards J pointed out that giving exclusive use and occupation of land to a contractor was not the same as giving the contractor a lease of the land [i.e. an interest involving exclusive possession].
And at 215:
Non-exclusive occupation is an intelligible term; non-exclusive possession is not.
It is clear that the notions of "occupation" and "exclusive possession" are not coextensive. One can be given a right to occupy land without a right to exclusively possess it. The use of the word "occupy" in s 108 does not therefore dispose of the question of whether a right to exclusive possession or similar right was conferred upon the holder of an ODL. Indeed, in relation to pastoral leases (for example), the lessee is entitled to occupy the leased area but it has been held that that occupancy does not extinguish all native title rights.
I turn to consider the effect of reg 87K, and whether in particular its effect is to confer upon the ODL holder a right of exclusive possession. The Applicant contended that reg 87K cannot confer a right to exclusive possession because it "does not use the language of 'exclusive possession'". I do not accept that the absence of such precise words dictates the correct conclusion.
In my view, however, there is a distinction between a right of exclusive possession as that phrase is generally understood in property law and a mere right to exclude other persons from the land by the holder of an ODL. The effect of the grant of the right of exclusive possession is that any person other than the holder of the ODL who accesses or traverses the relevant land after the time of the grant would be prima facie guilty of trespass. In the second case, person who accesses or traverses the relevant land is not a prima facie trespasser, and it is only upon the exercise of the ODL holder's right to exclude the other person from the land does the other person's presence on the land potentially become unlawful.
As was made clear in Ward HC by Gleeson CJ, Gaudron, Gummow and Hayne JJ at 136, the relevant test for extinguishment of native title at common law is:
[W]hether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use.
That was reinforced in Brown HC.
So a right to "exclude", even if it is accepted that it is in some sense different from a right to "exclusive possession", might still prima facie inconsistent with the continued existence of native title. That is because even if the right is not exercised, and in fact native title rights and interests continued to be exercised on the relevant land, the relevant inquiry is not about inconsistent use but about inconsistent rights. It might be said that, prima facie, a right to exclude others from the land is inconsistent with the continued existence of native title.
However, I accept the Applicant's next contention, and relevantly the critical question to be answered, namely that the terms of the ODL itself (with the other provisions of the CL Regulations and 1931 CL Ordinance) demonstrate that the ODL should not be interpreted as granting a right to exclusive possession or similar right. It is a right to require the exclusion of persons from the licensed area where that is required for the carrying out of the licensed activities.
The grant of the ODL was for five years as a right to use and occupy the land for the purposes authorised by Div 2A of the CL Regulations and for pastoral purposes.
Division 2A of the CL Regulations, as noted above, authorises the holder to use and occupy the land for the taking and shooting of buffaloes and related purposes: reg 87E(a). The licence itself, following Form 25, imposes a condition restricting use to the approved uses. The other conditions included:
(5)That the holder will at all times permit access, ingress, egress and regress to, from and over the land the subject of this licence to servants and agents of the Commonwealth who are engaged on their duties.
(6)That the holder will at all times permit and will not obstruct the use by members of the public of any public roads over or on the land in respect of which this licence is granted.
As can be seen, condition (6) reflects reg 87K (2) referred to above.
More importantly, the ODL itself restricts the use for which the licensee, in this case Mudginberri, may use the land to the purposes referred to. Those purposes are not of themselves of such a character as to be inconsistent with the continued exercise of the non-exclusive native title rights.
The licence does not authorise the licensee to exclude any person (subject to clause (b) set out above) from being on the land. It is not inherent in the nature of a licence to use and occupy land for a specific purpose that there is an entitlement to exclude from their exercise any Aboriginal person exercising native title rights, or indeed to exclude any person from access to the land at all. In Part VI of the 1931 CL Ordinance, s 107 authorising the grant of grazing licences, limits the exercise of such a grant to land where there is no other lease or licence. No such restriction is imposed in the issue of an ODL. The inference is that an ODL may be granted over leased or otherwise licensed land, so exclusively of the type necessary to extinguish native title or other rights is not a necessary or constructional consequence of an occupation licence.
If, despite the above, the licence should be regarded as carrying with it (as if expressed), the right referred to in reg 87K although that is not expressed in the licence, in any event I would construe the right as being limited to excluding persons only for the carrying out or better carrying out of the authorised activities. There are two reasons for that. The first is the common sense one: rhetorically, why would that right be able to be granted to a licensee entitled to use the land only for limited purposes? And in circumstances when the licensee may not choose to undertake any authorised activities on the land? Such an entitlement, namely to exclude any other persons from the land for all purposes and at any time does not fit sensibly with the concept of a licence to use. The second is to query whether, if such a broad right was intended by reg 87K, such a fulsome right may not be within the general regulation making power in s 131 of the 1931 CL Ordinance having regard to the types of activity it contemplates.
Indeed, in addition to the fact that the ODL only grants rights to the holder to occupy the land for limited purposes, it may be added that the ODL is liable to forfeiture for breach, and is susceptible to cancellation on three months' notice. Those matters also suggest that reg 87K should not be construed as granting a right to exclusive possession in unqualified terms. Otherwise it would mean that, for some reason, it is a greater right than the pastoral leases considered in Ward HC at 127-129 per Gleeson CJ, Gaudron, Gummow and Hayne JJ and the grazing and miscellaneous licences considered in Hayes at 116-122 by Olney J.
The conclusion I have reached also accords with the language of the condition to reg 87K, that the right is subject to the CL Regulations and to "any other law in force in the Territory". That is broad enough to include the common law of Australia. The common law recognises native title rights and interests. Thus, the right to exclude other persons from the land the subject of an ODL should be subject to the native title rights and interests recognised by the common law.
I note the Respondents contention that such a conclusion would be contrary to the decision of the Full Court in Gumana v Northern Territory (2007) 158 FCR 349 (Gumana) where the Court (French, Finn and Sundberg JJ) at 375-376 held that the phrase "law of the Northern Territory", as it appeared in s 70(2A) of the ALRA, did not include the common law. However, that phrase was defined in the ALRA as being a "law made under, or having effect in the Northern Territory by virtue of, the Self Government Act": 375. It was determined that the common law did not fall within that definition. In my view Gumana is of little assistance. The relevant words used in reg 87K are different, and they are not defined as they were in Gumana.
I have not overlooked the Full Court’s comment at 376:
Though [the common law of Australia] applies in the States and Territories, it is not itself "the creature of any State [or Territory]": Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 112. It cannot properly be described as "a law of a State or Territory".
However, there is a clear distinction between the defined words "law of the Northern Territory", and the words relevant to this case, "law in force in the Northern Territory". The use of the preposition "of" led the Court in Gumana to inquire in the above passage as to whether the common law could be considered a "creature of" the Territory. Such an inquiry is not required where the words "in force" are used instead. The common law of Australia is in my view "in force" in the Territory.
That approach is consistent with the reasoning in Hayes. In that case, Olney J considered s 3 of the Control of Waters Ordinance 1938 (NT), which provided that the property in the water in various bodies of water vested in the Crown, subject only to:
(a)any rights reserved or granted to any person by or under this Ordinance or any other Ordinance or law in force in the Territory; and
(b)any right therein, or to the use thereof, inconsistent with the right of the Crown, which may be established by any person under any Ordinance or law which is, or has been, in force in the Territory.
Olney J said at 135 that:
Native title rights and interests, being rights which are recognised by the common law and protected by the Native Title Act, are rights which may be established by a person under a law in force in the Territory and thus the vesting effected by s 3 is subject to those rights.
It is to be noted that the statutory provision referred to "any Ordinance or law", so the additional words “or law” should be recognised as adding a point of distinction. And it may also be said that the condition to reg 87K should not be construed so as to include the common law, because that interpretation might render the operative part of reg 87K nugatory because (it was argued) all persons have a common law right to access vacant Crown land, so that reg 87K being subject to the common law would be nugatory.
I do not think the position is as clear as that. In Stow v Mineral Holdings (Australia) Pty Ltd (1979) 180 CLR 295, at 311-312, Aickin J noted the common law rights exercisable by any member of the public:
All members of the public have a right to pass freely along or across public highways … Likewise members of the public generally may be entitled pursuant to particular statutes to use specified areas of Crown Land for the purpose of recreation. … [S]tatutes such as the National Parks and Wildlife Act 1970 (Tas) … give rights to members of the public as such.
Indeed, the proposition is somewhat circuitous. It is a matter of construction whether reg 87K was intended to operate so as to extinguish native title rights recognised at common law, by the issue of the ODL. It is only that aspect of the common law that is in issue.
In any event, in my view, there is no general common law right to traverse, access or occupy Crown lands. Australian and English textbooks consistently mention public common law rights to pass freely along public highways and public common law rights to fish and navigate in the open sea and tidal waters, amongst others: Sackville & Neave's Australian Property Law (9th ed, 2013) p.6-8; Australian Real Property Law (5th ed, 2011) p.337; Elements of Land Law (5th ed, 2009), 1344-1376. None mention a general and public common law right to access Crown land. For example, Bradbrook, MacCallum, Moore & Grattan write in Australian Real Property Law at 337:
Although public land may be formally dedicated to particular purposes, such as highways, recreation areas and national parks, the state remains the nominal and beneficial owner of the land. Members of the public have the right to pass freely along public highways and across other public land to the extent of the provisions creating the public purpose for the land. However, members of the public do not as a result acquire any right which may be described as an estate or interest in the land.
Russell v Pennings [2001] WASCA 115 concerned a parcel of previously vacant Crown land that was then dedicated as a road in 1913. Parker J found that "[b]y virtue of that dedication … a right of all members of the public to pass and repass along [that land] has existed since 1913 and still exists." There was no suggestion that the right had existed in any case before that time.
Similarly, in Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 397, Barwick CJ found:
… [N]one of [the acts undertaken in order to colonise Papua New Guinea] was inconsistent with the traditional result of occupation or settlement, namely that though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown.
The effect of that statement is that vacant Crown lands are not held by the Crown subject to a general common law right, rather than the rights of indigenous people recognised by the common law.
In fact, to revert to a more basic starting point, Barwick CJ's understanding of the concept of radical title was supported by the judgment in Mabo v Queensland (No 2) 175 CLR 1 (Mabo (No 2)). For instance, at 86, Deane and Gaudron JJ echoed Barwick CJ's words when their Honours that:
If there were land within the Colony in relation to which no pre-existing native interest existed, the radical title of the Crown carried with it a full and unfettered proprietary estate.
Brennan J made a similar point in Mabo (No 2) at 48.
The common law of Australia recognises native title rights and interests. As Brennan CJ explained in Wik Peoples v Queensland (1996) 187 CLR 1 (Wik) at 84:
[Native title] rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law.
(Also see Mabo (No 2) at 69-71 per Brennan J.)
Of course, even if the rights conferred by reg 87K are subject to the common law, as the Territory Respondents said, "the common law contemplates that native title is liable to extinguishment by laws enacted by or with the authority of the legislature or by the act of the executive in exercise of powers conferred upon it”. That statement is of course true, but it begs the question. The question is whether reg 87K on its proper consideration has that effect. That is the case where the act consists of the grant of an unalloyed right of exclusive possession. The grant will be inconsistent with the existence of any prior common law rights in respect of the relevant land, including native title rights and interests. But that is not the case where the relevant process is the regulatory grant of a conditional right to exclude others, where one of the conditions is that the right is subject to the common law.
Finally, it should be briefly noted that the Applicant sought to draw some additional support for her position from the fact that the ODL was subject to the Wildlife Conservation and Control Ordinance (NT) (WCC Ordinance). The WCC Ordinance prohibited all persons from shooting buffalo without a permit, except Aboriginal persons who do so for non-commercial purposes: ss 34, 36, 54. Whilst that does not directly convert to a legislative right inconsistent with the exercise of a regulation-making power in another Ordinance if reg 87K has the effect the Respondents urge, it does indicate a legislative awareness in another but related legislative context of traditional Aboriginal rights, and so makes it likely that if the regulation-making power extended to enable the extinguishment of native title rights, that would have been stated. That is by way of an additional comment only.
Conclusion
Accordingly, in my view neither reg 87K or s 108 should be construed so as to have conferred rights upon the holder of an ODL that are inconsistent with the continued existence of the non-exclusive native title rights, and the grant of the rights to Mudginberri did not itself operate so as to be inconsistent with, and therefore to extinguish, the Mirarr noin-exclusive native title rights.
If the rights conferred by the ODL does not extinguish the native title rights, then in my view that the grant of the ODL also had no greater effect on native title rights and interests than the grant of other occupation licences granted pursuant to s 108 of the CL Ordinance. As noted, Olney J concluded in Hayes decided that the grant of such occupation licences is not inconsistent with the continued existence of non-exclusive native title rights and interests at 121-122.
There is an additional aspect to address. Section 9H of the VNT Act (operating with s 9G of the VNT Act) provides that any PEP act attributable to the Territory extinguishes any native title in relation to the relevant land.
It is not contentious that the grant of the ODL, if it were a PEP act, was "attributable to the Northern Territory": NTA, s 23JA; VNT Act, s 9NA.
A PEP act is defined by s 23B(2) of the NTA as an act that took place on or before 23 December 1996, is valid and consists of the grant or vesting of any of a number of specified types of interests in land.
The Territory Respondents contended that the grant of the ODL occurred before 23 December 1996, is valid and consists of either a grant of a "commercial lease that is neither an agricultural lease nor a pastoral lease" s 23B(2)(c)(iii), or a grant of a "lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters": s 23B(2)(viii).
Clearly the grant of the ODL to Mudginberri occurred before 23 December 1996.
In order to fall within either of ss 23B(2)(c)(iii) or (viii), the ODL must be a lease. As the Territory Respondents accepted, the hallmark of a lease at common law is the conferral of a right of exclusive possession. The description of the ODL as a "licence" in the 1931 CL Ordinance and CL Regulations is not determinative of the contention that it is not a lease: Wik at 117-118 per Toohey J, at 150-152 per Gaudron J, at 195 per Gummow J, at 245 per Kirby J.
However, in my view, it is clear that the ODL did not confer upon its holder a right of exclusive possession as that phrase is generally understood. It conferred a qualified right of excluding others. It was subject to the qualifications referred to. As I have found, the right to exclude others (assuming that was a term of the ODL) did not extend to those holding native title rights and interests. It cannot therefore be described as a common law lease, the holder of which can exclude native title holders. "Lease" is defined at s 242 of the NTA so as to include leases other than common law leases. It includes leases enforceable in equity, a contract that contains a statement to the effect it is a lease, or anything that is by law declared to be or described as a lease. The ODL is patently none of those things. Thus, the ODL is not a lease and so its grant cannot be a PEP act.
The result, therefore, is that the grant of the ODL did not extinguish the non-exclusive native title rights either at common law or pursuant to the NTA or the VNT Act.
THE WILDLIFE SANCTUARY
As noted above, the ODL was surrendered on 11 January 1967. On 9 August 1972, declarations were published under ss 14 and 22 of the WCC Ordinance in respect of an area which included the southern part of the Jabiru land. Those declarations were declarations that the relevant land was a "sanctuary" and a "protected area". The Respondents accept that these declarations had no effect on the non-exclusive native title rights.
COMMONWEALTH ACQUISITION UPON SELF-GOVERNMENT
As outlined in the Background section above, the Commonwealth decided to adopt the recommendations of the Ranger Report, which included the creation of Kakadu National Park over a large tract of land including the Jabiru land.
At the same time, it had also been decided that the Territory should be made a 'self-governing' territory of the Commonwealth. Under the terms of the SG Act, the land comprising the Territory would cease to belong to the Commonwealth, and instead be vested in the new political body of the Territory. Pursuant to ss 69 and 60, however, a gazettal notice was published on 29 June 1978 providing that upon the commencement of self-government the Commonwealth would acquire (or retain) the land that was to become Kakadu National Park, including the Jabiru land.
Legislation
Section 69 of the SG Act commenced on 1 July 1978. The section was contained in Part VII of the SG Act, which was headed "Transitional Provisions".
Section 69 was headed "Transfers of property, &c." It relevantly provided:
(1)All interests of the Commonwealth in land in the Territory, other than interests referred to in sub-section (5), are by force of this section, vested in the Territory on the commencing date.
(2)All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth.
Section 70 of the SG Act had commenced on 22 June 1978 (as noted above). It was headed "Acquisition of certain land, &c.". It relevantly provided:
(1)The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section.
(2)The Governor-General may, on the recommendation of the Minister under sub-section (1), authorize the acquisition of the interest for a public purpose approved by the Governor-General.
(3)The Minister may cause to be published in the Gazette notice of the authorization of the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General.
(4)Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section –
Ÿvested in the Commonwealth; and
Ÿfreed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which sub-section (6) applies),
to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth.
(5)An interest that may be acquired under this section may be an interest that did not previously exist as such.
(6)Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory.
Section 57 of the SG Act was headed "Continuance of laws". It provided as follows:
(1)Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment.
…
(3)In this section, "existing law of the Territory" means -
(a)any law in force in the Territory immediately before the commencing date, other than an Act or an instrument (not being an Ordinance or an instrument made under an Ordinance) made under an Act; or
(b)an Ordinance, or an instrument under an Ordinance, in force immediately before the commencing date or made and assented to before that date but not in force before that date.
The gazettal notice
On 29 June 1978 (two days prior to the commencement of self-government on 1 July), pursuant to s 70(3) of the SG Act, the Commonwealth Minister of State for the Northern Territory caused to be published in the Gazette a notice of the authorisation of the Governor-General pursuant to s 70(2) of the SG Act declaring the acquisition of "the fee simple interest in the land", the land being a large tract of land that included the Jabiru land, "for the following public purpose approved by the Governor-General, namely: National Park".
The gazettal notice was published prior to the commencement of s 69 of the SG Act. That means that, on the plain meaning of s 70(4), the Commonwealth acquired the Jabiru land from the Territory "immediately after the commencement of s 69". The Jabiru land was first vested in the Territory by operation of s 69. But a 'split second', as it were, after that vesting, the Commonwealth acquired the Jabiru land back from the NT as a result of the operation of s 70(4), namely 1 July 1978.
That is what appears on final analysis to be the effect of the plain meaning of the words used in s 70(4). However, Gummow J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 (Newcrest Mining) came to a different conclusion about how s 70(4) operates in this situation. Of course, his Honour's conclusion in that respect is binding upon me. It will be necessary to revert to Newcrest Mining shortly.
Contentions
The Respondents contended that the acquisition by the Commonwealth of the Jabiru land was inconsistent with the continued existence of the non-exclusive native title rights, and thus extinguished those rights at common law. They argued that, by the acquisition, the Commonwealth obtained an estate in fee simple in the Jabiru land.
It is now uncontroversial that the acquisition of a fee simple estate is necessarily inconsistent with the continued existence of native title rights: Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
The Respondents primarily relied upon the plain meaning of the words "fee simple interest in the land" used in the gazettal notice. They contended that these words are clearly intended to convey an estate in fee simple, necessarily incorporating a right to exclusive possession. There is no reason, they argued, not to give the words used in the gazettal notice that meaning.
The Applicant contended, to the contrary, first, that there is precedent to suggest that the words "fee simple" do not always mean an estate in fee simple understood as encompassing a freehold estate with the right to exclusive possession. Second, she contended that upon the proper construction of the SG Act, it is clear that s 70 was not intended to be used to grant fee simple estates to the Commonwealth, and therefore the words in the gazettal notice should not be read as such. The Applicant relied on the conclusion of Gummow J in Newcrest Mining, where the same gazettal notice was considered.
Consideration
The meaning of the words "fee simple" in the gazettal notice do not, the Applicant contended always or in this instance convey the type of interest has been granted.
Isaacs J in Commonwealth v New South Wales (1923) 33 CLR 1 (Royal Metals Case) considered the operation of s 27(2) of the Lands Acquisition Act 1906 (Cth), which required the Commonwealth to pay compensation to a State for land acquired from it, such compensation to be estimated "as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth." Isaacs J at 42 held:
The words "estate in fee simple" in this sub-section must not be misunderstood. It merely denotes the quantity of interest remaining in the State after carving out whatever interests the State has parted with.
That conclusion is of course limited to, and informed by, the particular circumstances of that case. Clearly, the context is different from the present. However, it does demonstrate that the mere selection of the words "fee simple" is not necessarily determinative of the question of what type of interest has been granted.
The Applicant’s contention about the words "fee simple" should be interpreted requires consideration of how the particular statutory context. That is what Newcrest Mining also addressed.
Newcrest Mining concerned a number of mining leases granted over parcels of land in Kakadu National Park. The relevant land had been acquired by the Commonwealth under the SG Act by operation of the same gazettal notice that is in issue in this case. One issue that arose was whether particular mining leases had been validly renewed by the Territory. After the commencement of self-government, and the acquisition of the Commonwealth of the relevant land, the Territory had purported to renew the relevant existing mining leases pursuant to the Mining Ordinance 1937 (NT) that, prima facie, had remained in force by virtue of s 57 of the SG Act referred to above. The Commonwealth contended that its acquisition of the relevant land had the consequence that such Ordinances were no longer in force over that land.
The mining leases had continued in force under the Mining Act 1980 (NT). However, s 10(1A) of the NPWC Act prohibited the carrying on or operations for the recovery of minerals in Kakadu National Park (as amended in 1987). By two proclamations under the NPWC Act in 1989 and 1981, the areas of the mining leases were included in the Kakadu National Park. The issue principally was as to Newcrest’s entitlement to compensation on just terms under s 51(xxxi) of the Constitution. That in turn raised issues as to the effectiveness of the renewals of the leases as against the Commonwealth, and if they were effective whether the entitlement under s 51(xxxi) was engaged, despite the NPWC Act by the 1987 amendment exempting the Commonwealth from liability to pay compensation by the effect of the amending legislation.
The Court (Toohey, Gaudron, Gummow and Kirby JJ) held that Newcrest was entitled to just terms compensation, so that to that extent the 1987 amending legislation was invalid. The remaining members of the Court (Brennan CJ, Dawson and McHugh JJ) dissented. Part of the majority ruling (in separate judgments) was that the effect of ss 57, 69 and 70 of the SG Act was to retain for the Commonwealth the reversionary and reserved interests in land in which private subsisting interests were continued in operation but were held from the Territory on the same terms as they were held from the Commonwealth prior to 1 July 1978.
In his judgment, Gummow J expressed views about the intersecting operation of ss 69 and 70. There was some debate in submissions about whether those views were the subject of comment in the other judgments, although it appears to me that by a general adoption of his reasons, Toohey J at 560 and Gaudron J at 561 have given them support, without specifically referring to them. His Honour’s views focused on the particular features that s 70 commenced in 22 June 1978, the s 70 notice of acquisition was gazetted before the commencing day, that is before 1 July 1978, and s 69 only commenced on 1 July 1978.
Gummow J held at 625 in relation to ss 69 and 70 of the SG Act that:
… [U]pon their proper construction, these provisions were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57. Rather, their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the [SG Act - i.e. the Northern Territory].
As to the interaction of ss 69 and 70, Gummow J held at 626 that:
… [I]n enacting the [SG Act], the Parliament … was concerned to reserve to the Commonwealth the right to withdraw from the operation of [ss 69(2) and (4)] in favour of the Territory areas associated with public purposes of the Commonwealth, and to do so without incurring any liability to compensate the Territory. Section 70 operates to attain that end.
His Honour then went on to consider the application of s 70(6) (set out above). His Honour noted at 627 that gazettal notices published pursuant to s 70 of the SG Act could be published not only after the commencement of self-government on 1 July 1978, but also in the interval between the commencement of s 70 on 22 June 1978 and 1 July 1978. His Honour reasoned that s 70(6) could have no application to any "acquisition" by the Commonwealth that was effected by the publication of a gazettal notice prior to 1 July 1978 at 627:
In [the] interval [before 1 July 1978], the Territory would not yet have come into existence as a body politic. Accordingly, there were no interests in the subject land held from the Territory immediately before the acquisition by the Commonwealth upon the commencement of s 69. There would be no interests held by the then non-existent body politic, the Territory, which were derived from the interest acquired by the Commonwealth under s 70 upon the commencement of s 69. [Note: It is suggested, with respect, that where Gummow J says "interests held by" at the beginning of this sentence, his Honour means "interests held from".]
Accordingly, in those circumstances, there would be no work to be done by s 70(6).
That is because s 70(6) applies only to interests that were held from the Territory immediately before the acquisition and that were derived from the interest acquired by the Commonwealth. His Honour continued at 627:
Where, at the time when steps were taken under s 70, the land in question had already been vested in the Territory by the operation of s 69(2), after 1 July 1978, such derivative interests [as referred to in s 70(6)] might have come into existence. In those circumstances, s 70(6) would operate to provide that thenceforth they were to be held from the Commonwealth on the same terms and conditions on which they were held from the Territory. That was not this case. The notice in question was dated 27 June 1978 and published in the Gazette two days later. Accordingly, s 70(6) may be dismissed from further consideration.
Gummow J thus formed the view that, where a gazettal notice is published pursuant to s 70(4) prior to the commencement of s 69, then the land referred to in the notice is 'held back' from the operation of s 69(2), such that it is never vested in the NT, but rather it is not acquired by the Commonwealth (at least in the everyday sense of that word), but simply retained by the Commonwealth.
During the submissions, there was debate as to whether his Honour's finding in that regard accords with the plain meaning of the language employed in s 70(4), which states that in such circumstances, the Commonwealth acquires the relevant land from the NT "immediately after the commencement of s 69". The Territory Respondents, whilst accepting the Court should apply that reasoning, reserved the right to argue that it is not correct.
Sackville J in Margarula v Minister for Resources and Energy [1998] FCA 48 (Margarula) also expressed some doubt about its correctness, but found it unnecessary to come to any final conclusion on the matter. Sackville J's decision in that matter was appealed to the Full Court of this Court: Margarula v Minister for Resources and Energy (1998) 157 ALR 160. The Full Court (Beaumont, Lindgren and Emmett JJ) at 172 and 174 referred to Gummow J's reasoning on the topic but did not make any remarks as to its cogency, and regarded it as binding. It was not a critical issue in that case. In Pocock v Director of National Parks and Wildlife (2001) 110 FCR 419, O'Loughlin J noted the caution of Sackville J about Gummow J's reasoning in Newcrest Mining, but said that Gummow J's reasoning constituted part of his ratio decidendi and so applied it: at 431 [39]-[40].
It is not the role of this Court to do other than apply the considered reasoning of Gummow J even if, strictly speaking, it does form part of the ratio decidendi. The construction of the SG Act was a necessary step in reaching the conclusion that the SG Act did not operate so as to deny the mining leaseholders the right to renew their leases.
That is what was apparently done in Margarula both at first instance and in the Full Court. It is neither necessary nor appropriate to revisit that question.
In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, McHugh J held at [60]:
Under the common law system of adjudication, the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case. Moreover, even courts of co-ordinate authority or higher in the judicial hierarchy will ordinarily refuse to apply the ratio decidendi of a case only when they are convinced that it is wrong.
I adopt the construction given by Gummow J as noted above.
Apart from his findings about the operation of (inter alia) ss 69 and 70 of the SG Act generally, Gummow J also made findings about the meaning of the gazettal notice in issue in Newcrest Mining (and in this case). Gummow J held at 629 that:
… the use in the notice of the term "fee simple" is to be read, consistently with s 70(1), (4) and s 69(2), (4), adjectivally and to identify the amplitude of the reversionary and reserved interests of the Commonwealth. By the steps taken under s 70, these were to be excepted from the vesting in the Territory which otherwise would occur under s 69 on 1 July 1978.
What Gummow J means by saying the term "is to be read … adjectivally" is not immediately clear. The above passage is footnoted with a reference to Commonwealth v Maddalozzo (1980) 29 ALR 161 (Maddalozzo). It is necessary to go to that case to properly understand the above passage. Maddalozzo concerned a gazettal notice published pursuant to the Lands Acquisition Act 1955 (Cth) that compulsorily acquired "all Estate in fee simple land included in the area of land hereunder described". A description of a small area of land near Darwin followed. The question that arose in Maddalozzo was whether that notice had effected an acquisition of mining leases granted over the relevant area of land. The Court decided that the notice had effected an acquisition of all interests in the relevant land described in the notice, including mining leases. Mason J held at 165 (the page number specifically referenced by Gummow J in Newcrest Mining):
I have come to the conclusion that the majority in the Full Court was right in holding that the notice, in speaking of "all Estate in fee simple land", was referring to all land which had been granted in fee simple by the Crown in the area in question. This is to treat the words "Estate in fee simple" as adjectival in character, describing land which has been granted in fee, not as denoting the particular estate in land which is the subject of the acquisition.
Read in the light of Mason J's judgment in Maddalozzo, it must be the case that Gummow J in Newcrest Mining, by saying that the term "fee simple" is to be read "adjectivally", means to say that the term "fee simple" should be read as granting an interest other than an estate in fee simple. That is, in the words of Mason J, the term "fee simple" does not "denote the particular estate in land which is the subject of the acquisition". In my view, the interpretation of Gummow J's reasoning satisfactorily explains his use of the word "adjectivally" and its subsequent reference to the above-quoted passage from Maddalozzo.
Gummow J then went on to say that the use of the term "fee simple" is intended to "identify the amplitude of the reversionary and reserved interests of the Commonwealth" The Commonwealth Respondents contended that the "reversionary and reserved interest" Gummow J refers to is in fact an interest which carries substantial beneficial rights in land, and cites Brennan J in Mabo (No 2) at 68 in support. But it is clear from the judgment of Gummow J that when his Honour uses the term "reversionary and reserved interest" he means mere radical title, or something close to that. Gummow J had explained at 626 that s 69 (except where s 70 is engaged) vested the "reversionary and reserved interests of the Commonwealth … in the Territory on 1 July 1978." In my view, Gummow J is there referring to the radical title that the Commonwealth held in the relevant land prior to 1 July 1978. It would be strange if his Honour then proceeded to use the same term to refer to some different kind of interest. That interpretation is also consistent with Gummow J's earlier-expressed view that the purpose of s 70 is the "adjustment" of rights between the Commonwealth and the Territory.
If the scope and purpose of s 70 is as Gummow J found, then it would be inimical to that scope and purpose for an estate in fee simple (as generally understood) to be granted to the Commonwealth under it. The salient points are that, on his Honour's interpretation, s 70 operates so as to "hold back" parcels of land from the operation of ss 69(2) and (4) (at least where gazettal notices were published prior to the date of commencement of self-government). It is clear that the Commonwealth held a bare radical title to the Jabiru land prior to 1 July 1978. It follows that, by engaging s 70, the Commonwealth 'held back' that radical title from the operation of ss 69(2) and (4), and thus retained that radical title. On Gummow J's construction of the SG Act, s 70 could not be used by the Commonwealth so as to amplify the ambit of its rights over a particular parcel of land by removing those rights' subjection to native title by acquiring an estate in fee simple.
I therefore conclude that the gazettal notice conferred only the "reversionary and reserved interests" to the land upon the Commonwealth, on the understanding that that term refers to the Commonwealth's radical title.
Against that conclusion, the Commonwealth Respondents contended that s 3(1) of the Northern Territory (Commonwealth Lands) Act 1980 (Cth) bolstered their argument that the gazettal notice conferred an estate in fee simple. Section 3(1) applied to the relevant gazettal notice in this case: s 3(3). Section 3(1) provided:
A notice to which this section applies shall, for all purposes, be taken to be, and have always been, a notice duly published under and in accordance with section 70 of the [SG Act], and, subject to this section, sub-section 70(4) of that Act shall, for all purposes, be taken to have, and always had, effect, to the fullest extent to which it is capable of having effect, in relation to an interest in land that is an interest specified in a notice to which this section applies.
In Newcrest Mining, Gummow J at 628-629 stated that the effect of this section was that the gazettal notice "[was] "for all purposes" to be taken to have and to always have had effect "to the fullest extent" to which [it was] capable of having effect in relation to "an interest in land" as specified therein".
The Commonwealth Respondents appeared to, at least in their written submissions, proceed on the same assumption as that of Gummow J - that s 3(1) required the words in the gazettal notice to be given a broad interpretation and not to be "read down".
However, in the absence of any evidence, it is not in my view appropriate simply to adopt as evidence the findings in King. I accept that major roads such as Jabiru Drive and Arnhem Highway required an adjacent area for their construction, establishment and operation and buffers for safety and maintenance. That is a matter of commonsense. There is no specific evidence as to what is necessary for that purpose. The Applicant has proposed that the determination of the necessary areas of adjacent land be deferred with liberty to apply to establish the precise areas required. I propose to accede to that suggestion, but to make a provisional ruling accepting the claim of the Territory.
The area of lots 968, 1427, 2015, 2025 and 2032 is determined to be adjacent areas to the public works constituted by Jabiru Drive, subject to the Applicant having liability to apply within 12 months of the judgment in this matter to have those areas removed from or reduced within the adjacent area as determined.
Arnhem Highway (Adjacent land on lots 2306, 2318 and 2319)
The land constituting Arnhem Highway is outside the claim area. Lots 2306, 2318 and 2319 are inside the claim area and are adjacent to the land constituting Arnhem Highway. The Territory Respondents make the same contention as to those lots as they do in regards to the lots adjacent to Jabiru Drive. Again, they rely on the same satellite map of Jabiru.
For the same reasons as given immediately above, the area of the named lots is also included in the adjacent area required with the public work which is the Arnhem Highway, subject to the Applicant having liberty to apply within 12 months of the judgment in this matter to have those areas removed from or reduced within the adjacent area as determined.
Manaburduma Jabiru Town Camp (Adjacent land on lot 2317)
Lot 2317 contains the Manaburduma Jabiru Town Camp. It has been accepted that the Camp is a "public work". The Territory Respondents contend that the whole of lot 2317 is "adjacent land" to the public work. The Applicant contended that there is no evidence for that contention.
The Territory Respondents rely on an annexure to the affidavit of Mr Fuller, being the Annual Report of the JTD Authority for the 1982/1983 financial year. At 7 of that Report, the following is stated in relation to the Manaburduma Jabiru Town Camp:
Aboriginal Camping Area (now known as Manaburduma)
Under the Plan of Management, the Authority was required to set aside 2 areas on the outskirts of the town, each 7 to 8 hectares in area, and separated from the town by a suitable buffer zone, for future aboriginal use.
The Report goes on to state that the Manaburduma Jabiru Town Camp was subsequently established to fulfil that requirement. In oral submissions, counsel for the Territory Respondents stated that having regard to that evidence, as well as "the size of the thing" and "the nature of the tenancy", it must be concluded that the whole of lot 2317 is "adjacent land" because it is necessary for the operation of the Camp.
According to the Territory government's record of "Administrative Interests", tendered by the Territory Respondents, lot 2317 comprises over 55 hectares of land. That is a significantly larger area than the required seven to eight hectares. It might be pointed out that the Plan of Management required two areas of seven to eight hectares each to be set aside. Perhaps the Camp was meant to comprise both those areas. That is a possibility. There are two vague groups of buildings visible in the aerial photograph, though there is not a great distance between them. The area is referred to as a singular camp, and not two camps. But even if I accept that possibility, that only means a maximum of 16 hectares were required for the two areas, still far short of 55 hectares. To this it might be further argued that the Plan of Management also mentions a "suitable buffer zone" between the camp and the Township. Perhaps the outstanding 39 hectares comprise that buffer zone. That inference is made less likely by the fact that only the relatively short western side of lot 2317 abuts the Township. The other boundaries of lot 2317 abut apparently vacant land. More fundamentally, however, there is no good reason to infer that 39 hectares is the appropriate size for a buffer zone. Such an inference would cross into the realm of mere speculation.
In my view, there is insufficient evidence to find that the whole of lot 2317 is "adjacent land" to the public work situated on that land. I accept that the seven hectares most proximate to the camp buildings comprise those buildings' "adjacent land". Beyond that, I do not accept that the area in issue is adjacent land.
Scout hall (Adjacent land on lot 2321)
Lot 2321 is the scout hall that has already been discussed. Given I have concluded that I cannot find that any "public work" was ever constructed there, it of course follows that there is no "adjacent land" on lot 2321.
Green waste dump (Adjacent land on lot 2326)
The large lot 2326 contains in one part of its bounds a "green waste dump". There has been no formal admission as to the green waste dump's “adjacent land” status, but there is no contest between the parties in that regard. A further set of maps was handed up on this issue by the Territory Respondents. Those maps set out the extent of the "adjacent land". I find that the "adjacent land" to the green waste dump is as set out in those maps.
Section 23B(9B)
The final argument in relation to the public works issues relates to s 23B(9B) of the NTA. This section has already been considered in these reasons. It excludes from the definition of "PEP act" any act that is done "by or under" legislation that expressly provides that the act does not extinguish native title. I have already decided that s 8B(1)(a)(ii) of the NPWC Act does not expressly make such a provision in relation to native title rights.
However, if it were necessary to do so, I would find that the construction or establishment of the relevant works were acts to which s 8B(1)(a)(i) applied. The relevant construction or establishment acts were done under licences and leases which were issued under ss 8D or 9(2A). That is, but for those provisions, the construction or establishment could not have occurred. Section 8B(1)(a)(i) provides that prescribed provisions (which includes ss 8D and 9(2A)) do not affect any interest in respect of land. If the relevant construction or establishment had affected any interest in respect of land, then it could be said that ss 8D or 9(2A) had affected an interest in respect of land without any straining of the meaning of the verb "affect". Thus, but for my earlier ruling, s 8B(1)(a)(i) applied to the construction or establishment.
The final question then would be whether the construction or establishment occurred by or under the NPWC Act. In that regard, the Applicant first pointed to s 10(3) of the NPWC Act, which relevantly states:
Subject to sub-sections (4) and (4A) -
(a)no excavation shall be carried on;
(b)no building or other structure shall be erected;
(c)no works shall be carried out; and
(d)no timber shall be felled or taken,
in a park or reserve except in accordance with the plan of management relating to that park or reserve.
Section 10(3) is expressly made subject to s 8D: NPWC Act, s 10(1). Section 8D, with which I have already dealt in these reasons, permits licences to be granted for the development of the Jabiru Township prior to a plan of management coming into effect. In addition, s 9(2A) gives the Director power to grant licences, as well as leases, to develop the Jabiru Township. Section 10(3) is not subject to s 9(2A). So s 9(2A) only grants the Director the power to grant licences and leases after a plan of management has come into effect, and in accordance with that plan of management (because otherwise the grant would contravene s 10(3)).
The Applicant said that "ss 8D and 9(2A) [of the NPWC Act] … authorise and give legal effect to the construction of a work at the township by the JTDA."
The Respondents disputed that the relevant acts were done "by or under" the NPWC Act. They rely on Griffith University v Tang (2005) 221 CLR 99 (Tang), where at 130 Gummow, Callinan and Heydon JJ state a test as to whether a particular decision is made "under" an enactment (as that expression is used in the Judicial Review Act 1991 (Qld), s 4):
The determination of whether a decision is "made … under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. …
The Commonwealth Respondents particularly emphasised the second limb of the above test. They contended that it cannot be said that the conferral and/or alteration of legal rights that the relevant acts effected "derive from" the NPWC Act.
In my view, the second limb of the Tang test is of limited assistance in the present context. Tang considered the expression "under an enactment" in the very different context of administrative law. It is clear that the test expressed by their Honours, in particular the second criterion, is tailored to that context and is inapt to deal with the present context. The other criterion of the test cited above is (in part) that "the decision must itself confer, alter or otherwise affect legal rights or obligations". That criterion makes sense in the context of the Judicial Review Act 1991 (Qld). It makes less obvious sense in the context of the NTA. The relevant act is not (or at least is not necessarily) a "decision", and it is difficult to see why it would be important in the NTA context, as opposed to an administrative law context, that the relevant act "confers, alters or otherwise affects legal rights or obligations". Indeed, if the Tang test were applied literally in the present circumstances, it may well be said that the mere construction or establishment of a particular work cannot be said to have conferred, altered or affected any legal rights. The only way it could affect legal rights is if it extinguishes native title rights because it is a PEP act under the NTA. But of course whether the relevant acts are PEP acts is the very question being determined. To determine what is meant by "by or under" an enactment in the context of s 23B(9B), I do not think Tang is decisive.
Obviously, Tang does provide some general guidance - an act done "under" an enactment is one that is "expressly or impliedly required or authorised" by the enactment, or one that "derives from" the enactment. But using these alternative formulations of the question to be determined does not answer that question.
It is clear that there are two senses in which one can speak of doing an act "under" an enactment. In R v Clyne; Ex parte Harrap [1941] VLR 200 (Clyne), O'Bryan J helpfully described those two senses as "pursuant to" (a narrow interpretation) and "by virtue of" (a broad interpretation). In the present case, a broad interpretation of "under" could include the construction of the relevant works. It can be said that the relevant acts were done "by virtue of" the NPWC Act in that they directly relied upon, and that their legal authority emanated from, a lease, licences, and a plan of management, all issued or granted pursuant to the NPWC Act. Conversely, a narrow interpretation of "under" would not include the construction of the relevant works. It would be said that only the lease, licences, and plan of management were issued "pursuant to" the NPWC Act. All subsequent acts relying on those instruments are not done "pursuant to" the NPWC Act, but only done "pursuant to" those instruments.
An example of the distinction between these two interpretations of the word "under" is provided by Clyne itself. In that case, a provision of a Crimes Act stated that a right of appeal against a conviction lay only for convictions "under" Part VI of the Act. The provision that established the relevant offence was not in Part VI. But the provision that enabled an information or complaint to be prosecuted in the Court of Petty Sessions (as had occurred in order to obtain the conviction), was within Part VI. O'Bryan J reasoned that while the conviction had been obtained "by virtue of" the provision enabling the information or complaint to be prosecuted, the conviction was "pursuant to" the provision that established the criminal offence. After having regard to the relevant context and circumstances, O'Bryan J held that "under" should be interpreted as meaning "pursuant to", rather than "by virtue of". The appellant therefore had no right of appeal.
An example of an adoption of the broader interpretation of "under" is provided in R v Kemp (1979) 69 Cr App R 330, where the English Court of Appeal held, after an extensive analysis of the relevant context, that a conspiracy to commit an offence under the Misuse of Drugs Act 1971 (UK) is an offence "under" that Act, even though conspiracy was a common law offence, and no provision of the Act made conspiracy a statutory offence. Though the Court did not use the expressions "pursuant to" or "by virtue of", it is obvious that it could not be said that conspiracy was an offence "pursuant to" the Act. It could only be said that conspiracy was an offence "by virtue of" the Act, because if the statutory offence had not been created by the Act, then there would have been no conspiracy to commit an offence.
The question, then, is which of these two alternative interpretations of "under" - "pursuant to" or "by virtue of" is most apt in the case at hand. To determine that question it is necessary to refer to the relevant context and circumstances.
The relevant Explanatory Memorandum explains that s 23B(9B) (at the time of drafting, s 23B(9C)) was an Opposition amendment to the Native Title Amendment Bill 1998 (Cth). Its purpose was to:
[make] it clear that if an act is done pursuant to a law which says that the doing of the act does not extinguish native title rights, that act is not a previous exclusive possession act, no matter what its effect under the common law may have been. (original emphasis)
That is, s 23B(9B) was inserted to ensure that native title rights and interests are protected where an applicable enactment specifically provides that a particular act will not affect native title rights.
In my opinion, a broad interpretation of the word "under" better achieves the objective of the Opposition amendment as expressed in the explanatory memorandum. That objective is to ensure that where there is an express protection of native title rights in relation to an act, that protection is not rendered ineffective by the PEP act regime. A narrow interpretation of "under" in s 23B(9B) would render the protection afforded by s 23B(9B) ineffective. In the present case, it would mean that s 23B(9B) would prevent the Township Lease from being a PEP act and thus extinguishing native title. But it would not prevent subsequent acts done in purported reliance upon or by virtue of the Township Lease that are destructive of native title, and thus in violation of the (assumed, for present purposes) express protection of native title subject to which the lease was granted, from validly extinguishing native title.
That is, on that assumption, s 23B(9B) would appear to ensure that the Township Lease's subjection to existing native title rights is respected, insofar as the grant of that lease itself would be regarded not to have extinguished native title. But then s 23B(9B) would provide only illusory protection, as it would not protect native title from subsequent acts destructive of native title that are done in purported reliance upon the township lease. The only way to ensure that s 23B(9B) provides substantive protection of native title rights where they have been expressly protected is to adopt the wider interpretation of "under" contended for by the Applicant.
When such an interpretation is adopted, the public works, which were all constructed or established in reliance on one or several of the Township lease, the licences, and the plan of management, are acts done "under" the NPWC Act, s 8(1)(a)(i). It provides that the plan of management and the relevant provisions of the NPWC Act do not affect existing rights in land (and it is assumed for the immediate purposes, including native title). Thus, the public works fall within s 23B(9B) and are therefore not "PEP acts". Thus, it would be determined that the construction or establishment of public works did not extinguish native title.
However, as the starting premise does not apply, it is not appropriate to take that step.
Conclusion on public works
Given that I have concluded that the grant of sub-leases to non-Crown entities extinguished native title under the NTA, the only native title that the public works issues could affect is that native title existing over land that was not the subject of a sub-lease to a non-Crown entity. In relation to that native title that still exists over land the subject of a grant of a sub-lease to a Crown entity, it will be recalled that the non-extinguishment principle applies such that native title is suppressed but not extinguished.
In relation to public works, I have generally accepted the claims that the specified public works have, to the extent that non-exclusive native title continued to exist in that land, extinguished that native title by reason of being PEP Acts.
In some few circumstances, for the reasons I have given, the public works as claimed have not had that effect:
(1)the underground water line to Kakadu National Park headquarters, because it is not established prior to 23 December 1996;
(2)the asserted Scout Hall on Lot 2321, because it is not shown to have been constructed;
(3)the Magela Creek sewage pipeline, because it is not a major earthwork;
(4)Lot 871 adjacent to Lot 872, because its relationship to the townhouse is not established; and
(5)the land in Lot 2317, other than an 8ha section of it adjacent to the Manaburduma Jabiru Town camp, because not all of it is shown to be “adjacent lands”.
I have made provisional orders in relation to the allotments adjacent to the Jabiru Drive and Arnhem Highway.
CONCLUSION
The consideration of the extent to which the native title rights of the Mirarr People have been extinguished over the Jabiru land is a complex one. It has required addressing the chronological sequence of events from European contact to the period after the commencement of the NTA.
The Mirarr People have been recognised as the traditional owners of the land, but it is the consequence ultimately ending in the relatively small area within their traditional country where Jabiru has been established which is in issue.
As the reasons above show, in my view each of the subleases granted pursuant to cl 2(2) of the Jabiru Town Lease by the JDT Authority, save for the Crown sub-leases, which do not come within the proviso in s 23B(9C)(b) of the NTA, extinguished the non-exclusive native title in the areas of those leases from the dates referred to. In respect of the leases granted before 23 December 1996, that extinguishment occurred at the time of the grant, rather than at the time of its registration. In respect of the leases granted after 23 December 1996, but said to have commenced retrospectively from an earlier date, that extinguishment took place at the time of the grant itself and not at the time from which the grant retrospectively dates the commencement of the entitlement.
The Crown sub-leases as Category D past or intermediate period acts did not extinguish native title, but to the extent that the activities undertaken pursuant to them adversely affect the enjoyment of the non-exclusive native title over these areas, that enjoyment of the native title is suppressed and the non-extinguishment principal applies so long as that activity (generally a structure) exists but it may ultimately revive.
The Territory argued that, in any event the mostly undisputed public works over the Jabiru land have extinguished any native title rights which survived the cascading sequence of events leading up to the Township Lease and the various sub-leases. That proposition, in general terms, was accepted by the Applicant, save for limited specific areas of dispute, which are addressed above. The conclusions on the extinguishing effect of the public works are set out in [398] above.
The parties and their advisers are commenced for having reached the degree of consensus in relation to the various issues recorded in these reasons for judgment. The areas of residual dispute, particularly on extinguishment, were narrow. The parties had requested some quite lengthy periods to complete their negotiations. The number of instruments and transactions required to be considered was very extensive. That is demonstrated by the thorough and detailed analysis contained in the submissions on the residual areas of dispute.
There will be declaratory orders to give effect to these reasons for judgment. For the purposes of better understanding them, I record that the subleases by the Jabiru Town Development Authority to non-Crown entities are set out in Table A to the Applicant’s Note on “Findings on Extinguishment Sought by the Respondents on Sub-Leases and Public Works” dated 26 April 2013 (the Applicant’s 26 April 2013 Note) consistently with the identification of those sub-leases by the Territory Respondents (see the Territory Respondents’ Submissions on Extinguishment at [137] ff and the Commonwealth Respondent’s Submissions of 9 November 2009; the subleases to Crown entities are set out in Table B to the Applicant’s 26 April 2013 Note consistently with the identification of those subleases by the Territory Respondents and the Commonwealth Respondents as noted above; and the Public Works are set out in Table C to the Applicant’s 26 April 2013 Note consistently with the identification of the Public Works in the Territory Respondent’s Outline of Submissions on Public Works of 26 September 2012 and in the Commonwealth Respondent’s Submissions on Public Works of 1 October 2012.
I certify that the preceding four hundred and six (406) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 24 August 2016
SCHEDULE OF PARTIES
NTD 6027 of 1998 Applicants
Applicants
Yvonne Margarula and Irene Nayinggul on behalf of the Mirarr People
Respondents
First Respondent
Northern Territory of Australia
Second Respondent
Commonwealth of Australia
Third Respondent
Energy Resources Australia Limited
Fourth Respondent
Jabiru Town Development Authority
Fifth Respondent
Director of National Parks
Sixth Respondent
Gundjeihmi Aboriginal Corporation
Seventh Respondent
Northern Land Council
Eighth Respondent
Telstra Corporation
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