Nyamal Palyku Proceeding (No 2)

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FEDERAL COURT OF AUSTRALIA

Nyamal Palyku Proceeding (No 2) [2020] FCA 788

File numbers: WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 26 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018
Judge: REEVES J
Date of judgment: 5 June 2020
Catchwords: NATIVE TITLE – Determination of separate questions under r 30.01 of the Federal Court Rules 2011 (Cth) – whether any native title that did exist has been extinguished – where the questions relate to the tenure status of two areas of land located in Western Australia – whether a reserve was validly created and vested – whether a special lease was validly granted
Legislation:

Evidence Act 1906 (WA)

Federal Court Rules 2011 (Cth)

Interpretation Act 1898 (WA)

Interpretation Act 1918 (WA)

Land Act 1898 (WA)

Land Act 1933 (WA)

Land Act Amendment Act 1948 (WA)

Land Regulations 1887 (WA)

Native Administration Act 1905 (WA)

Native Welfare Act 1905 (WA)

Native Welfare Act 1963 (WA)

Transfer of Land Act 1893 (WA)

Western Australia Constitution Act 1890 (Imp)

Cases cited:

Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868

Daniel v State of Western Australia [2003] FCA 666

Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30

Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

Neowarra v Western Australia [2003] FCA 1402

Ocean Road Motel Proprietary Limited v Pacific Acceptance Corporation Limited (1963) 109 CLR 276

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454; [2004] WASCA 122

Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28

Date of hearing: 25 September 2019
Registry: Western Australia
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 134
Counsel for the Palyku Applicants: Mr V Hughston SC
Solicitor for the Palyku Applicants: Cross Country Native Title Services
Solicitor for the Nyamal Applicants: Mr J Edwards of Arma Legal
Solicitor for the State of Western Australia: Mr G Ranson of State Solicitor’s Office

ORDERS

WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 26 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018

IN THE MATTER OF the Nyamal Palyku Proceeding, constituted pursuant to orders made on 31 August 2018

KEVIN CHARLES ALLEN and others (NYAMAL #1)

Nyamal #1 Applicant

DORIS EATON and others (NYAMAL #10)

Nyamal #10 Applicant

TAMMY O’CONNOR and others (PALYKU)

Palyku Applicant

MAVIS WESTERMAN and others (NYAMAL OVERLAP CLAIM)
Nyamal Overlap Applicant

MAVIS WESTERMAN and others (NYAMAL OVERLAP #2 CLAIM)
Nyamal Overlap #2 Applicant

KEVIN STREAM and others (PALYKU #2)

Palyku #2 Applicant

STATE OF WESTERN AUSTRALIA & ORS

Respondents

JUDGE:

REEVES J

DATE OF ORDER:

5 JUNE…

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Details
Case
[2020] FCA 788
Decision Date

CaseChat Overview and Summary

The court was asked to determine several questions related to native title in Western Australia. The central dispute involved the validity of a reserve and a special lease granted over two parcels of land. The parties involved in the proceeding were the claimants seeking native title rights and the State of Western Australia. The court had to decide whether the reserve was validly created and vested, whether the special lease was validly granted, and if the grant of the special lease extinguished any existing native title rights. The court's decision focused on the validity of the actions taken by the State regarding the reserve and the special lease.

The court examined the validity of the reserve's creation, the vesting of the reserve, the validity of the special lease, and whether the special lease extinguished native title rights. The court determined that the reserve was validly created and vested. However, the court found that the special lease was not validly granted because it did not meet the requirements set forth in the Land Act 1933 and the Native Welfare Act 1905. Since the special lease was not validly granted, the court did not need to determine whether it extinguished any native title rights.

The court based its decision on the provisions of the Land Regulations 1887 and the Land Act 1933. The court found that the reserve was validly created as it served the purpose of "commonage," which was within the scope of permissible purposes under the Land Regulations. The vesting of the reserve was also upheld as it complied with the requirements of the Land Act. However, the court found that the special lease did not meet the statutory requirements for validity, primarily due to irregularities in the application process and the notice of the lease. Consequently, the court held that the special lease was not validly granted, and thus, it did not extinguish any existing native title rights.

The court concluded that the reserve was validly created and vested, but the special lease was not validly granted. As a result, any potential extinguishment of native title rights by the special lease was not considered. The court invited the parties to seek any necessary orders based on the findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In response, the State’s position on the four questions above is as follows:Question 1: Was the Reserve validly created?… [T]he setting aside of [the Reserve] was valid and was inconsistent with, and extinguished, any exclusive native title rights and interests in the area covered by [the Reserve]. In particular, [it] says:(a)the purpose of [the Reserve] was a purpose for which a reserve could be set aside pursuant to the provisions of the Land Regulations 1887;Question 2: If the answer to Question 1 is “yes”, was the Reserve validly vested?… [T]he vesting of [the Reserve] pursuant to s 33 of the Land Act 1933 (WA) on 9 November 1973 was valid. In particular, [it]:(a)denies that only reserves set aside pursuant to the provisions of the Land Act 1933 (WA) could be vested under s 33 of that Act; and(b)says that, having been validly created for the purpose of “Commonage”, [the Reserve] could be validly vested for that purpose pursuant to s 33 of the Land Act 1933 (WA).Question 3: Was the Special Lease validly granted pursuant to the provisions of the Land Act 1933?(a)[The Special Lease] was validly granted pursuant to s 116 of the Land Act 1933 (WA) and the Native Welfare Act 1905 (WA); and(b)to the extent that any irregularities in the application for, notice of, or lease document for [the Special Lease] exist, those irregularities do not have the effect of invalidating the grant of [the Special Lease].Question 4: If the answer to Question 3 is “yes”, did the grant of the Special Lease wholly extinguish any extant native title rights?… [T]he purpose of [the Special Lease] (being “use of Natives”) did not limit, diminish or otherwise amend the nature of the rights conferred by that lease. Those rights were identical to any other lease granted pursuant to section 116 of the Land Act 1933 (WA).… [T]he test for extinguishment of native title at common law is one of an “inconsistency of incidents” between the relevant law or act and the native title rights being asserted, not whether a “clear and plain intention” to extinguish native title existed.(Footnotes and numbering omitted)THE RESERVE – FACTUAL BACKGROUND According to the facts agreed between the parties, five relevant actions have been taken with respect to the Reserve. First, on 1 February 1895, a notice was published in the Western Australia Government Gazette (the Government Gazette) to the effect that the Governor in Executive Council (the Governor) had set aside an area of land, the boundaries of which were described in the notice, as the Reserve to be a public reserve for the purpose of “commonage”. Next, on 23 April 1909, by Order in Council published in the Government Gazette, it was directed that the control and management of the Reserve should be placed in, and held by, the Nullagine Road Board pursuant to s 43 of the Land Act 1898 (WA). Then, on 30 August 1918, notice was published in the Government Gazette that the Governor had approved by-laws for the Nullagine Road Board’s control and management of the Reserve pursuant to s 43 of the Land Act 1898.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, Question 3 must be answered “no”. Since Question 4 proceeds on the assumption of an affirmative answer to Question 3, it is unnecessary to consider that question.OVERALL CONCLUSION AND DISPOSITION To sum up, for the reasons set out above, the answers to the four separate questions are as follows:1. Question 1 – “yes”;2. Question 2 – “yes”;3. Question 3 – “no”; and4. Question 4 – it is not necessary to answer. I will hear the parties as to whether they wish to seek any orders consequent upon these answers.

Ratio Decidendi

Legal Principle Established

As can be seen from the contentions above, this question hinges on the provisions of reg 32 of the Land Regulations 1887 and, in particular, regs 32(m) and 32(n). Regulation 32 of those regulations provided:THE Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, such lands, whether surveyed or not, as may be required for the following objects and purposes:(a.) For the use or benefit of the aboriginal inhabitants.(b.) For the use and requirements of the Government of the Colony, or for purposes of military or naval defence.(c.) Railways, railway stations, roads, tramways, and canals or other internal communications, or for the approaches or other purposes necessarily appertaining to any such works.(d.) Quays, landing places, ferries, and bridges.(e.) Sites for churches and chapels, with not exceeding one hundred acres of glebe land attached, and sites for parsonages.(f.) Sites for schools and other buildings for the purposes of education, and land for the endowment of schools and other educational institutions of a public character.(g.) Reservoirs, aqueducts, or watercourses.(h.) Sites for town halls, mechanics’ institutes, telegraph stations, telegraph lines, post offices, abattoirs, public baths, schools of art, libraries, museums, public gardens, experimental farms, agricultural and horticultural societies, temperance institutions, cricket grounds, race-courses, hospitals, and institutions for charitable purposes, markets, court-houses, police stations and paddocks, prisons, or other edifices for public use or purposes.(i.) Cemeteries.(j.) Places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants(k.) For the endowment of municipal corporations within the Colony.(l.) For sinking shafts and digging for coal, iron, copper, lead, or other minerals and metals, or for quarrying rock, clay, earth, or other material for making roads, buildings, or other works.(m.) Resting places and commonage for travellers and stock.(n.) Any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.Consideration It is appropriate to begin by noting that the Proclamation of the Reserve in 1895 simply described it as “commonage” (see at [9] above). Turning, then, to the text, context and purpose of reg 32 and, in particular, the subregulation at the centre of this question, namely reg 32(m). First, it can be seen that reg 32 comprised 14 subregulations which contained 14 different groupings of “objects and purposes” for which Crown land in Western Australia, whether surveyed or not, may be “except[ed] from sale” and either “reserve[d] to” the Crown or “dispose[d] of in such other manner as for the public interest may seem best”. The common theme to all of the “objects and purposes” in those 14 groupings was the advancement of the public interest. This appears from the text of those subregulations, a good example of which is the catch all provision in the final subregulation, reg 32(n): “Any other purpose of public health, safety, utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony”.