Queensland

Case [2016] FCA 13

FEDERAL COURT OF AUSTRALIA

Doyle on behalf of the Iman People #2 v State of Queensland [2016] FCA 13

File number: QUD 6162 of 1998
Judge: REEVES J
Date of judgment: 22 January 2016
Catchwords: NATIVE TITLE – hearing of separate questions under r 30.01 of the Federal Court Rules 2011 (Cth) – whether a grant, and grants and conversions, comprise a previous exclusive possession act within s 23B of the Native Title Act 1993 (Cth) – whether land duly dedicated and established as a public road – consideration of the presumption of regularity – whether various past acts are valid within the terms of s 23B of the Native Title Act 1993 (Cth) – consideration of the meaning and operation of the decision in University of Wollongong v Metwally (1984) 158 CLR 447
Legislation:

Anti-Discrimination Act 1977 (NSW)

Brigalow and Other Lands Development Acts 1962-1965 (Qld)

Constitution

Crown Lands Act 1884 (Qld)

Federal Court Rules 2011 (Cth)

Judiciary Act 1903 (Cth)

Land Act 1897 (Qld)

Land Act 1962-1975 (Qld)

Land Act 1962-1984 (Qld)

Land Act Amendment Act 1984 (Qld)

Land Acts 1962-1968 (Qld)

Land Acts 1962-1981 (Qld)

Land Surveyors Act 1908 (Qld)

Native Title (Queensland) Act 1993 (Qld)

Native Title Act 1993 (Cth)

Racial Discrimination Act 1975 (Cth)

Racial Discrimination Amendment Act 1983 (Cth)

Cases cited:

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Fourmile v Selpam Pty Ltd (1998) 80 FCR 151

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

University of Wollongong v Metwally (1984) 158 CLR 447

Viskauskas v Niland (1983) 153 CLR 280

Western Australia v Commonwealth (1995) 183 CLR 373

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

Dates of hearing: 4 and 15 June 2015
Registry: Queensland
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 77
Counsel for the Applicant: Mr D Yarrow
Solicitor for the Applicant: Just Us Lawyers
Counsel for the First Respondent: Ms S Brownhill
Solicitor for the First Respondent: Crown Law
Counsel for the Second to Eighth Respondents: The Second to Eighth Respondents did not appear
Solicitor for the Ninth Respondent: Mr B Zillman of Allens
Counsel for the Tenth to Fourteenth Respondents: The Tenth to Fourteenth Respondents did not appear
Solicitor for the Fifteenth to Twenty-Ninth Respondents: Mr M Boge of Thynne & Macartney

ORDERS

QUD 6162 of 1998
BETWEEN:

RICHARD DOYLE & ORS ON BEHALF OF THE IMAN PEOPLE #2
Applicant
AND:

STATE OF QUEENSLAND (and others named in the Schedule)
First Respondent

JUDGE:

REEVES J

DATE OF ORDER:

22 JANUARY 2016

THE COURT ORDERS THAT:

1.Each of the following comprises a previous exclusive possession act within s 23B of the Native Title Act 1993 (Cth):

(a)The grant of:

(i)Grazing Homestead Perpetual Lease 36/7570 on 2 March 1978 pursuant to s 169B of the Land Act 1962-1975 (Qld) over Lot 1 on Plan AB94 which ceased to have effect prior to 28 November…

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AGLC
Queensland [2016] FCA 13
Case
[2016] FCA 13
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia considered a case concerning native title and the validity of certain land grants and conversions made by the State of Queensland. The dispute arose from the interpretation of the Native Title Act 1993 (Cth) and the Queensland Native Title Act 1993 (QNTA), specifically whether certain past acts constituted previous exclusive possession acts under the Native Title Act. These acts included land grants and conversions which occurred prior to the enactment of the Racial Discrimination Act 1975 (RDA) and the Native Title Act. The court had to determine if these acts, which were rendered invalid by section 109 of the Australian Constitution, could be validated by the Queensland legislation and if so, when they could be considered valid.

The legal issues before the court were multifaceted. First, it had to determine whether the land grants and conversions constituted previous exclusive possession acts. Second, it had to decide whether the land in question had been duly dedicated and established as a public road. Third, the court examined the applicability of the presumption of regularity to infer certain official actions, such as the declaration of land for selection, and whether the lack of explicit evidence could be overcome by this presumption. Finally, the court needed to interpret the decision in University of Wollongong v Metwally and its relevance to the validation of past acts under the Native Title Act.

The court found that the land grants and conversions did indeed constitute previous exclusive possession acts under the Native Title Act. It further determined that the depiction of an area as a road on a particular plan was sufficient evidence to conclude that the land had been dedicated as a public road. The presumption of regularity was deemed applicable to infer that the requisite official actions were taken, despite the absence of explicit documentary evidence. Finally, the court concluded that the Queensland legislation, once in effect, validated the past acts and extinguished the native title from that point forward, in line with the principles established in Metwally.

In summary, the court held that the land grants and conversions were valid previous exclusive possession acts, the land was properly dedicated as a public road, and the presumption of regularity supported the inference of official actions. The validation and extinguishment of native title took effect from the date the Queensland legislation came into force.

Orders

Orders of the court

1. Each of the following comprises a previous exclusive possession act within s 23B of the Native Title Act 1993 (Cth):

(a) The grant of:

(i) Grazing Homestead Perpetual Lease 36/7570 on 2 March 1978 pursuant to s 169B of the Land Act 1962-1975 (Qld) over Lot 1 on Plan AB94 which ceased to have effect prior to 28 November 1994;

(ii) Grazing Homestead Perpetual Lease 36/7569 on 4 May 1978 pursuant to s 169B of the Land Act 1962-1975 (Qld) over Lot 1 on Plan AB74 which ceased to have effect prior to 28 November 1994; and

(iii) Grazing Homestead Perpetual Lease 36/7571 on 18 May 1978 pursuant to s 169B of the Land Act 1962-1975 (Qld) over Lot 2 on Plan AB148 which ceased to have effect prior to 28 November 1994,

which comprise area 226, being Lot 62 on FTY1809.

(b) The conversion, pursuant to s 61 of the Land Act Amendment Act 1984 (Qld), of the following to Grazing Homestead Perpetual Leases under s 131 of the Land Act 1962-1984 (Qld) on 15 May 1984:

(i) Grazing Homestead Lease 40/1789 granted on 19 September 1968 over Lot 2 on Plan LE297 (comprising part of area 224, being Lot 52 on FTY1364); and

(ii) Grazing Farm Lease 40/1824 granted on 15 April 1982 over Lot 1 on LE271 (comprising area 73, being Lot 3 on LE289).

(c) The depiction on Plan LE9 of an area running north south on the western boundary of Portion 26 identified as road (comprising area 33, including Lot 1 on AP3608).

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

Background

Background to the litigation

Before explaining how these observations provide an answer to the question posed by the applicant in this Metwally issue, it is convenient to sum up. First, the scheme contained in the NTA for the validation of past acts does not involve the Commonwealth retrospectively attempting to avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a Commonwealth law, as occurred in Metwally. Secondly, by s 7 of the NTA, the Commonwealth has removed any future inconsistency with the RDA that may be involved in a State Legislature passing legislation to validate past acts that were rendered invalid by the combined operation of the RDA and s 109 of the Constitution. Thirdly, by s 19 of the NTA, the Commonwealth has confirmed that a State Legislature may pass legislation with the same effect as ss 15 and 16 of the NTA (relating to certain past acts attributable to the Commonwealth) to validate similar past acts attributable to the State. Fourthly, under s 19, a State Legislature may pass legislation which provides for the validation of past acts attributable to the State, however, to be effective, that State legislation has to comply with the apposite provisions of the “exclusive code” in the NTA: see the Native Title Act case at 453, 456 and 468–469. Fifthly and finally, if the State legislation does comply with that code, once it comes into effect, from that time onwards, it operates as an exception to the general protection offered to native title by s 11 of the NTA and effects an extinguishment of the native title concerned. This is what the expressions “giving present legal force” (see Metwally at 469 per Murphy J), “only for the future” (see the Native Title Act case at 451) and “from that time onwards” (see the Native Title Act case at 455) were intended to convey. Similarly, the words in s 19 of the NTA and s 8 of the QNTA that they “are taken always to have been valid”.The prospective validation of past acts existing as historical facts Finally, I turn to explain how these observations provide an answer to the question posed by the applicant in this Metwally issue. To begin with, there is no suggestion in this case that the Queensland legislation, the QNTA, particularly s 8 thereof, did not comply with the “exclusive code” in the NTA and did not, once it came into effect, have the validating effect and the extinguishing consequences mentioned above from that time onwards. However, in this issue, the applicant has concentrated on what happened in the intervening period between the inception of the invalid acts – the grant or conversion of the leases affecting areas 73, 224 and 226 – and 1 January 1994 and 28 November 1994, when the NTA and the QNTA, respectively, came into effect. In essence, it claims that the validating effect, and extinguishing consequences, described above, could not, and did not, apply to past invalid acts attributable to the State where those acts no longer existed as at 1994.

Evidence

Evidence Before The Court

There are two Executive acts in relation to which the State of Queensland was unable to produce any records. They are as follows:(a)any Government Gazette (including a notice similar to [14] above) declaring that the lands in Portions 26, 27 and 28 (shown on Plan LE9) were open for selection in accordance with the provisions of s 75 of the Land Act 1897; and(b)that the maps relating to Portions 26, 27 and 28 were exhibited to the public in accordance with s 84 of the Land Act 1897.Mr McClelland’s written and oral evidence about surveying practice The practice of the Queensland Government agencies responsible for the performance of land surveys, the preparation of survey plans and the charting and recording of those plans is described in Mr McClelland’s affidavit in the following terms:[The purpose and context of survey plans]Survey plans are records depicting cadastral and other lines such as lot or portion boundaries drawn in relation to natural features of the land. The cadastral and other lines are marked by reference to pegs or other marks placed upon the land (such as on the ground or on trees) and the bearings and distances from each of the pegs or marks to the next.[The performance of a land survey]In the performance of a survey and preparation of a survey plan, it has been a requirement, and part of the survey process, that:(a)surveyors consider and take account of natural features of the land such as swamps and other topographical features when determining the location of pegs or markers to identify land boundaries;(b)survey markers such as corner pegs or tree branding had to be made on the land; and(c)such survey markers had to be drawn and identified on the survey plans.[The preparation of a survey plan]The process for the preparation of a survey plan involved the following, with the steps usually recorded on the survey plan when they were taken:(a)Instructions were provided by the relevant Survey Office staff for an external surveyor to survey the area;(b)A surveyor was engaged to survey the area;(c)The surveyor went into the field, undertook the survey, and prepared field notes as a record of his survey;(d)The surveyor used those field notes to prepare a draft survey plan;(e)The surveyor provided the draft plan to the relevant Survey Office staff for checking or examination, which involved consideration of the survey plan to ensure it complied with the applicable Survey Office requirements, rules and regulations in effect at the time;(f)Once the survey plan was examined it was then charted [see “The charting of survey plans” below];(g)On some occasions, survey plans were stamped by the Survey Office Queensland (or its equivalent at the respective time), identifying the applicable Office file number and recording the receipt and processing by the Office of the survey plan;(h)The survey plan was then made available to the public as the official record of the matters recorded on the survey plan.[The charting of survey plans]A survey plan was “charted” when the plan had been registered as the formal land administration record, land transactions (such as the selection of land for the grant of tenure) had proceeded, details of the plan and tenure had been recorded on an administrative map and actions such as the issue of deeds or leases were proceeding.If a plan is recorded as “charted”, it is recognition that all actions have been carried out with respect to that plan which give it operational force and effect.[The recording of survey plans]As part of its land administration function, Queensland government agencies have long been responsible for the preparation, maintenance, publication and retention of survey plans. Survey plans were held in hard copy and used as administrative tools to record dealings in relation to the land depicted and changes made over time in respect of boundaries, portion numbers, etc were marked on the survey plans.

Decision

Reasons for decision

Based on these observations, I consider that the proper interpretation of Plan LE9 is that the line joining points 109a and 111a, which coincides with the western boundary of Portion 11v as shown on Plan LAB4012, was intended to show both the western boundary of Portion 26 and also the western boundary of the road in the vicinity of the swamp area shown on that Plan.Conclusion – affirmative answer to the question at [2(c)] above For these reasons, the question at [2(c)] above must be answered in the affirmative.THE METWALLY ISSUE – AREAS 73, 224 AND 226Introduction The historical context to the Metwally issue (see at [3(b)] above] is of much more recent origins. It dates from the late 1960s, when a number of leasehold interests were granted, or granted and converted, under the Land Act (Qld), which affected the land in areas 73, 224 and 226. Importantly, it is common ground that: those leasehold interests all arose after the passage of the RDA on 31 October 1975; they were all inconsistent with the provisions of that Act; and they were therefore rendered invalid by the operation of s 109 of the Constitution. In submissions, this invalidity was agreed to be of the second kind identified in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [108]: “[A] State law [that] … extinguishes only native title and leaves other titles intact … and the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.” Finally, it is common ground that all of the interests in question were surrendered prior to 1 January 1994, when the NTA came into effect.The grant, and grants and conversions, concerned The relevant history of the grant (area 226) and the grants and conversions (areas 73 and 224) concerned in this Metwally issue are as follows:Area 73(a)On 15 April 1982, Grazing Farm Lease 40/1824 was granted under the Land Acts 1962-1981 (Qld); and(b)On 15 May 1984, s 61 of the Land Act Amendment Act 1984 (Qld) came into effect. Under s 61(1)(a) of that Act, this Grazing Farm Lease was converted into a Grazing Homestead Lease Perpetual.Area 224(a)On 19 September 1968, Grazing Homestead Lease 40/1789 was granted under the Land Acts 1962-1968 (Qld) and the Brigalow and Other Lands Development Acts 1962-1965 (Qld); and(b)As noted above, on 15 May 1984, s 61 of the Land Act Amendment Act 1984 (Qld) came into effect. Under s 61(1)(a) of that Act, this Grazing Homestead Lease was also converted into a Grazing Homestead Lease Perpetual.Area 226(a)During 1978, the following leases were granted under Div IV of the Land Act 1962-1975 (Qld), which together covered the whole of area 226:(i) Grazing Homestead Lease Perpetual 36/7570 on 2 March 1978;(ii) Grazing Homestead Perpetual Lease 36/7569 on 4 May 1978; and(iii) Grazing Homestead Perpetual Lease 36/7571 on 18 May 1978. Affecting all of the three areas in question, between 1986 and 1990 all of the above leasehold interests were progressively surrendered and the land to which they related was incorporated into Queensland State Forests Nos 52 and 62.

Ratio Decidendi

Legal Principle Established

On the road boundary issue, the State submitted the explanation given by Mr McClelland in his evidence established that stations 111, 110a, 110 and 109 on Plan LE9 were all marked on the ground by the surveyor and provided clear evidence of the location of the eastern boundary of the road. I note, in passing, that, ultimately, the applicant did not dispute this contention. As for the western boundary of the road, the State submitted that, while Mr McClelland’s evidence was to the effect that stations 109a and 111a were not marked on the ground, the contents of Plans LAB4012 and LE9, when considered together, showed that that boundary had been surveyed in accordance with s 77 and was located as shown on both of those plans. I take this to mean along the western boundary of Portion 11v on the former, and of Portion 26 on the latter.The declaration in relation to Portions 26–28 can be inferred The road dedication issue essentially reduces to the question whether the presumption of regularity can be relied upon by the State to overcome the absence of any evidence to show that Portions 26–28 on Plan LE9 had been declared open for selection in accordance with s 75 of the Land Act 1897. The applicant claims that the State cannot rely upon the presumption of regularity because it only applies to the prerequisites that are anterior to the exercise of a statutory power. To advance this contention, it relied on the judgment of McHugh JA in Aboriginal Land Council. In that case, a question arose as to whether the Secretary of the Western Lands Commission, who had purported to grant permissive occupancy of certain land, was acting pursuant to a delegation made by the Minister for Natural Resources. McHugh JA (with whom Kirby P agreed at 157) concluded (at 164) that the presumption (or legal maxim) of regularity could be used to infer that the Secretary had the requisite authority to make the grants. In reaching that conclusion, his Honour made the following observations (at 164):The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M'Gahey v Alston (1836) 2 M & W 206 at 211150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; ; Hardess v Beaumont [1953] VLR 315 at 318-319.…A particular application of the maxim which is relevant to this case is stated in Broom’s Legal Maxims, 10th ed (1939) at 642 as follows:“… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.”