State of Western Australia v BP (Deceased) - [2014] FCAFC 95

FEDERAL COURT OF AUSTRALIA
State of Western Australia v BP (Deceased) [2014] FCAFC 95

Citation: State of Western Australia v BP (Deceased) [2014] FCAFC 95

Appeal from: BP (Deceased) v State of Western Australia [2013] FCA 760

Parties: STATE OF WESTERN AUSTRALIA v BP (DECEASED), TILLY STEVENS, KEN CLAUSE, BENNY CAMPBELL and BETTY ANDERSON

File number: WAD 360 of 2013

Judges:
NORTH, BARKER AND BROMBERG JJ

Date of judgment: 1 August 2014

Catchwords:
NATIVE TITLE – pastoral leases acquired by the Crown – application for determination of native title made over land – resumption process – s 47B(5)(b) Native Title Act 1993 (Cth) – whether the Crown had a bona fide intention of using the land for public purposes or for a particular purpose at the time the land was acquired – whether the Crown still had such intention at time native title application was made – whether primary judge erred in only considering intention of the Crown at the time of the application for native title – whether primary judge failed to properly take into account use to which the land had been put by failing to find that activities by CALM on the land were for conservation purposes – whether error in primary judge’s finding that Cabinet decisions did not amount to bona fide intention to use the land for conservation – whether error in finding that lack of consent of native title holders meant no bona fide intention

Legislation:
Cases cited:

Native Title Act 1993 (Cth) ss 47B, 61

Warren v Coombes (1979) 142 CLR 531
Fox v Percy (2003) 214 CLR 118

Date of hearing: 24 February 2014

Date of last submissions: 24 February 2014

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 113

Counsel for the Appellant: Mr R M Mitchell SC with Ms C I Taggart

Solicitor for the Appellant: State Solicitor's Office

Counsel for the Respondent: Mr V B Hughston SC

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 360 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
STATE OF WESTERN AUSTRALIA
Appellant

AND:
BP (DECEASED)
First Respondent

TILLY STEVENS
Second Respondent

KEN CLAUSE
Third Respondent

BENNY CAMPBELL
Fourth Respondent

BETTY ANDERSON
Fifth Respondent

JUDGES:

NORTH, BARKER AND BROMBERG JJ

DATE OF ORDER:

1 AUGUST 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The appeal is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 360 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
STATE OF WESTERN AUSTRALIA
Appellant

AND:
BP (DECEASED)
First Respondent

TILLY STEVENS
Second Respondent

KEN CLAUSE
Third Respondent

BENNY CAMPBELL
Fourth Respondent

BETTY ANDERSON
Fifth Respondent

JUDGES:

NORTH, BARKER AND BROMBERG JJ

DATE:

1 AUGUST 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

On 28 October 2004, the respondents, on behalf of the Wiluna People, applied for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (the Act) (the native title application).
The claim area was previously subject to the Earaheedy pastoral lease and the Lorna Glen pastoral lease.
Section 47B(2) of the Act operates so that the extinguishing effect of the two pastoral leases must be disregarded in certain circumstances including if, when the native title application was made, the area was not subject to a resumption process (s 47B(1)(b)(iii)). Section 47B(5)(b) provides:
(5) For the purposes of this section:
…
(b)an area is subject to a resumption process at a particular time (the test time) if:
(i)all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and
(ii)when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
(iii)the Crown still had a bona fide intention of that kind in relation to the area at the test time.
When s 47B(1)(b) is read with s 47B(5)(b), it may be seen that the test time referred to is the time when the native title application was made.
Before the primary judge, the appellant, the State of Western Australia (the State), argued that pursuant to s 47B(5)(b) the claim area was subject to a resumption process at the test time so that the extinguishing effects of the grants of the pastoral leases were not to be disregarded under s 47B(2).
The primary judge held, in favour of the respondents, that when the native title application was made on 28 October 2004, the Crown did not have a bona fide intention of using the land for public purposes or for a particular purpose pursuant to s 47B(5)(b)(iii). Consequently, when the native title application was made, the area was not subject to a resumption process (s 47B(1)(b)(iii)), and the extinguishing effects of the grants of the pastoral leases must be disregarded.
The primary judge addressed four matters of fact which led to the conclusion that the Crown did not have the necessary intention as at the date of the native title application. The primary judge determined:
·That the existing use of the land did not establish an intention to use it for conservation and recreation purposes in the future. The issue is referred to as “the use of the land issue”.
·That the State Cabinet (the Cabinet) decisions did not exhibit the necessary intention. This issue is referred to as “the Cabinet decision issue”.
·That there was an unconcluded debate between government departments which was not simply about the tenure on which the land was to be held but concerned the future use of the land. This issue is referred to as “the treating the debate about the kind of reservation as a debate about use issue”.
·That the Crown did not intend to use the land for conservation and recreational purposes unless the native title holders agreed, and they did not agree. This issue is referred to as “the native title holders issue”.
Then, the primary judge said that, in view of the conclusion that the Crown did not have a clear intention of using the land for the purposes of conservation and recreation at the time of the native title application, it was not necessary to determine whether the Crown had such an intention when the pastoral leases were acquired or surrendered. This issue is referred to as the “order in which the questions were posed issue”.
The State appeals against the determination of the primary judge on the basis that her Honour erred on two grounds:
(1)for failing to find that when all interests last existing in relation to the determination area were acquired, the Crown had a bona fide intention of using the land for public purposes or for a particular purpose, namely conservation recreation;
(2)for finding that the Crown did not still have a bona fide intention of that kind in relation to the land at the test time of 28 October 2004.
In particular the State contended that the primary judge:
(1)erred in failing to consider whether the requirements of s 47B(5)(b)(ii) were satisfied before considering whether the requirements of s 47B(5)(b)(iii) were satisfied, and thereby failed to deal with evidence of the circumstances in which the State acquired the land and the events which followed the acquisition in determining whether the State “still” had the relevant intention at the test time;
(2)erred in finding that the evidence went no further than establishing that the Department of Conservation and Land Management’s (CALM) management activities were not inconsistent with the future use of the land for conservation and recreation purposes, when the evidence was that the State had in fact used the land for the purposes of conservation recreation since its acquisition;
(3)having correctly recognised that the relevant question concerned the intended use rather than the intended reservation of the land, erred in treating statements about the future reservation of the land as concerning its intended use;
(4)erred in concluding that decisions of the Cabinet did not disclose a clear intention with respect to the land and that Cabinet’s further decision on 3 September 2007 was made too long after the test time to disclose anything relevant about the intention of the Crown at the test time;
(5)erred in finding that the Crown had no more than a mere desire or wish to use the land for the purpose of conservation and recreation, not amounting to a bona fide intention to the use the land for that purpose, in circumstances where the evidence established that:
(a)the State had acquired the land for the purpose of conservation and recreation and had in fact used it for that purpose since its acquisition;
(b)the debate between CALM and the Department of Industry and Resources concerned the manner in which the land should be classified rather than whether the land should be used for the purposes of conservation and recreation or whether mining activity could occur on the land at all;
(6)erred in finding that mineral resource extraction and/or the application of mining legislation over the land was in conflict with the Crown having a bona fide intention to use the land for the purposes of conservation and recreation, in circumstances where the evidence did not support such a finding; and
(7)erred in finding that the State could not use (or reserve) the land for the purpose of conservation and recreation unless the native title holders agreed to that use (or reservation).
The facts relevant to the appeal are not in contention. They are largely to be found in documents. The issue on the appeal is whether the primary judge erred in drawing inferences from the documentary material about the intention of the Crown.
This appellate Court is in as good a position as the primary judge to decide on the proper inference to be drawn from these facts. “In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”: Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9 at [18]; as cited in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25].
These reasons first set out the facts as disclosed by the documents. The account of the facts is largely taken from the reasons of the primary judge. Then, these reasons examine the reasons of the primary judge. Finally, these reasons consider each of the five matters raised on the appeal.
THE FACTS
CALM considered the possible purchase of some parts of the Earaheedy pastoral lease area as early as 1996. It did not have the funds available at that time.
In March 1997, the Gascoyne-Murchison Rangeland Strategy Steering Group submitted a report to a sub-committee of the Cabinet (the Rangelands strategy report). The report identified a vision of comprehensive, adequate and representative conservation reserves in the Gascoyne-Murchison rangelands (the Rangelands) in which the areas of land in question are situated. It noted that CALM was endeavouring to establish this reserve system by purchasing pastoral lease land. Land acquired would then need to be actively managed by CALM by undertaking weed control, feral animal control, fire control, adequate fencing and the like.
On 29 July 1997, an inter-governmental agreement between the Commonwealth and the State was executed. Funding for the creation of a national system of comprehensive, adequate and representative conservation reserves was contemplated by this agreement. In particular, funding for the establishment of such a system in the Rangelands was envisaged.
On 18 November 1997, the Cabinet decided as follows:
CABINET
1.supports the Gascoyne-Murchison Strategy Action Plan, subject to any new resource allocations going through the Budget process;
2.notes the Gascoyne-Murchison Strategy Action Plan being summarised and distributed as the “Gascoyne-Murchison Strategy”;
3.directs the Gascoyne-Murchison Strategy Cabinet Sub-Committee and the Gascoyne-Murchison Strategy Implementation Group to act on its behalf and work across government to implement the Gascoyne-Murchison Strategy Action Plan;
4.authorises the Gascoyne-Murchison Strategy Cabinet Sub-Committee to formalise a State/Commonwealth agreement for the Strategy Action Plan; and
5.directs that the Implementation group be broadened to include representation of biodiversity and conservation interests and expertise.
On 13 February 1998, Cabinet decided as follows:
CABINET approves the following arrangements:
•$2 million currently scheduled by CALM for debt repayment purposes be used instead to fund, during 1997/98 and 1998/99, land acquisitions which are part of the Gascoyne-Murchison Strategy Plan noting that CALM has made debt repayments of $10 million in advance of its required repayments;
•$2 million be paid to CALM from the consolidated fund in 1999/2000 for debt repayment purposes;
•from 1999/2000 the Consolidated Fund provides funds to CALM for capital purposes associated with the Gascoyne-Murchison Strategy Plan amounting to $1.2 million for each of four years with CALM absorbing the recurrent costs associated with implementing the plan;
By May 1998, the State government had announced that there was $6.8 million available to establish comprehensive, adequate and representative conservation reserves in the Rangelands through the purchase of pastoral leases.
Thereafter, assessments of the conservation value of the Earaheedy pastoral lease area were carried out.
On 3 November 1998, the Executive Director of CALM offered to purchase the Earaheedy pastoral lease “for conservation purposes”. On 26 November 1998, the Executive Director of CALM sought Ministerial approval for the purchase “to add to the conservation estate”. On 15 January 1999 the Minister approved the purchase.
On 18 February 1999, the Commonwealth and the State entered into a financial agreement for funding for the purchase of, amongst other lands, the Earaheedy pastoral lease, to achieve the outcomes of the National Reserve System program.
In March 1999, the State government released its policy on the Rangelands (the Rangelands policy). Provisions of the policy included that the environment would be protected by:
5.1Identifying and establishing a comprehensive, adequate and representative conservation reserve system, representing the full range of land forms and biological communities.
5.2Supporting the conservation of biological diversity through the strategic protection of native flora and fauna and representative habitats.
5.3Establishing, and the monitoring of, environmental objectives for broad scale land use.
5.4Developing multiple land use models that integrate nature conservation and other land uses while ensuring that public land is managed to best practice.
5.5Facilitating Aboriginal involvement in the management of rangelands, including conservation reserves and Aboriginal lands, for conservation and/or cultural purposes.
5.6Providing the community with further opportunities to enjoy the natural values of conservation reserves.
On 10 November 1999, CALM published interim management guidelines for the Earaheedy pastoral lease which stated that:
These guidelines cover the major management issues. They are:
•the conservation of biological, physical, cultural and landscape resources
•the facilitation of recreation in a safe and appropriate form in relation to the physical and climatic conditions of the area and the conservation objectives
•To seek a better understanding of the natural and cultural environment and the impacts of a range of management activities.
These interim guidelines also noted that:
Any future mining tenements will be granted in accordance with conditions agreed to between CALM and the Department of Minerals and Energy (DOME). Prior to any ground disturbing activity a detailed program will be prepared by the proponent and referred to CALM. This program will also address rehabilitation requirements.
In March 2000, a Memorandum of Understanding (the MOU) was concluded between CALM and the Department of Land Administration. The terms are as follows:
1.        Introduction
This Memorandum of Understanding (MOU) formalizes arrangements between the Department of Conservation and Land Management (CALM) and the Department of Land Administration (DOLA) for the interim holding of land purchased or transferred under pastoral lease title by CALM to add to the conservation or forest estate. The MOU is made between CALM and DOLA. It recognizes the State’s commitment to establishing a comprehensive, adequate and representative (CAR) conservation reserve system in the rangelands of Western Australia through the acquisition of pastoral leases identified as containing land systems and vegetation types that are in good condition and are not represented or are poorly represented in the present conservation estate. The establishment and management of a CAR reserve system and the integration of nature conservation measures into pastoral land uses are key objectives in the Government’s Managing the Rangelands Policy and the Gascoyne-Murchison Strategy.
This document is an administrative document which sets out the intended outcome for pastoral leases purchased by CALM with both State and Commonwealth funds, or otherwise transferred to CALM. It applies to whole and part leases already acquired and future part and whole lease acquisitions.
2.        Background
The Executive Director of CALM currently holds a number of pastoral leases (listed at Schedule 1) and with State funds allocated for the purpose of establishing a CAR reserve system is seeking to acquire further leases and part leases. These pastoral leases are not operated as pastoral operations by CALM and all livestock is removed when the property is purchased or within an agreed time following settlement. With the advent of the Land Administration Act 1997 it is not normally appropriate for the Executive Director of CALM to hold the acquired pastoral leases as the conditions of the pastoral lease are not being met. Until all clearances/approvals are sought from Government agencies such as the Department of Minerals and Energy and from native title interests enabling the land to be set aside as a conservation reserve or State forest, an interim holding tenure is needed. Specifically this interim measure must:
•    clearly identify CALM control and management;
•not impact on Mining Act 1978 provisions in relation to Crown land; and
•be able to be achieved without reference to the ‘future acts’ requirements of the Native Title Act 1993.
The preferred interim tenure consists of reservation for a purpose not incurring the vesting provisions of the Conservation and Land Management Act 1984 (CALM Act), but without a management order issuing. However, such reservation would remove the affected land from the Mining Act’s definition of “Crown land”.
Until agreement has been reached with Department of Minerals and Energy on interim reservation, the interim tenure for acquired pastoral leases and part leases will consist of the land remaining as unallocated Crown land, but subject to a management arrangement under s 33(2) of the CALM Act.
3.        Scope
This MOU covers:
•all pastoral leases held in the name of the Executive Director of CALM and listed on Schedule 1;
•leases and part leases acquired and surrendered prior to this agreement and listed on Schedule 1; and
•all future pastoral leases and part pastoral leases acquired for inclusion in the conservation or forest estate.
4.        Agreed Interim Tenure Arrangements
The Executive Director of CALM and the Chief Executive of DOLA acknowledge that pastoral leases acquired by CALM will ultimately be added to the conservation or forest estate and the following acquisition and interim holding arrangements will apply:
…
•    The preferred option is for the land to be reserved for an interim purpose, without a management order issuing to CALM. Such interim purpose should not incur the automatic vesting provisions of the CALM Act, and might consist of “conservation and recreation”, “land management”, “future conservation purposes”, or “use and requirements of the Department of CALM. However, as reservation for purposes other than “mining”, “common”, or public utility-related purposes excludes the subject land from the Mining Act’s definition of “Crown land”, prior agreement by Department of Minerals and Energy is required.
•    In the absence of agreement by the Department of Minerals and Energy to interim reservation, the acquired land will become UCL managed by CALM under section 33(2) of the CALM Act until it is reserved for conservation or forest estate.
…
5.        CALM Management
On transfer and surrender of the purchased pastoral leases to the State of Western Australia, CALM will be responsible for the land as part of the lands managed by the Department for the conservation or forest estate. An agreement between the Minister for the Environment and Minister for Lands will be entered into for management of the lands to be placed by the Governor under CALM’s control under section 33(2) of the CALM Act.
CALM will manage the lands in accordance with CALM policies and major management goals. These are:
•protection and conservation of indigenous plants and animals and their habitats;
•protection and conservation of physical, cultural and scenic resources;
•         maintenance of scientific reference areas;
           •         conservation and protection of groundwater resources;
           •         control of feral animals and noxious weeds;
•restoration of natural resources that have been degraded by past activities;
•provision of sustainable, high quality nature-based recreation and tourism opportunities where appropriate;
•facilitating public enjoyment through the provision of access and visitor facilities where appropriate; and
•taking of forest produce (e.g. sandalwood) where appropriate on a sustainable yield basis.

In March 2000, the lessees of the Lorna Glen pastoral lease offered their lease to CALM for purchase. An assessment of the conservation value of that area was carried out.
On 10 May 2000, the Executive Director of CALM offered to purchase the Lorna Glen pastoral lease “for conservation purposes”. The lessees agreed on 23 May 2000. On that day, the Executive Director of CALM sought and obtained Ministerial approval for the purchase and inclusion of the land into the conservation estate. On 1 August 2000, the lessees of the Lorna Glen pastoral lease surrendered the lease to the State.
On 2 February 2001, the Executive Director of CALM surrendered the Earaheedy pastoral lease to the Crown to enable the land to be “revested in the State of Western Australia and created as reserves for conservation purposes”.
On 10 May 2001, a financial agreement between the Commonwealth and the State was entered into to achieve the outcomes of the National Reserve System program which provided funding for the purchase of, amongst other land, the Lorna Glen pastoral lease.
On 13 June 2001, in response to a letter of 15 August 2000, the Department of Minerals and Energy (DOME) provided CALM with advice about the mineral resources on the Lorna Glen pastoral lease, saying that there was “significant potential” for such resources with the result that “there is a need to consider a range of possible approaches for CALM’s ongoing management of the area”.
On 1 November 2001, interim management guidelines for the Lorna Glen pastoral lease were issued by CALM. Those interim guidelines are in much the same terms as those for the Earaheedy pastoral lease referred to at [24]-[25] of these reasons.
CALM provided Environment Australia, the relevant Commonwealth body, with progress reports about both areas of land. Those reports noted that various management works, including destocking, fencing and feral animal control, were being carried out by CALM and that assessments of mineral resources were still being carried out.
On 20 November 2002, Cabinet made the following decision:
CABINET
1.notes that Western Australia’s present terrestrial conservation reserve system does not meet the criteria of comprehensiveness, adequacy and representativeness;
2.endorses the policy to establish a comprehensive, adequate and representative conservation reserve system for Western Australia;
3.notes that the establishment of conservation reserves requires a coordinated approach involving all relevant agencies;
4.directs relevant agencies to give priority attention to:
a.establishing the 30 new national parks in accordance with the Protecting our old-growth forests policy and the forest management plan; and
b.converting pastoral leases already purchased for conservation reserve purposes into formal conservation reserves, resulting in the establishment of the proposed expanded Kennedy Range and Karijini National Parks and the reservation generally as conservation park of other areas;
5.notes the request for continued funding for land purchases and refers it to the Expenditure Review Committee (ERC) for the 2003/04 budget process;
6.directs the Department of Conservation and Land Management to report on progress in 6 months; and
7.notes that the program of bioregional surveys of the State is incomplete and will be the subject of a future Cabinet submission.
[Emphasis in original.]
On 31 January 2003, CALM wrote to various government agencies seeking a response to the proposed reservation of land, including the areas in question, for conservation purposes.
On 28 February 2003, the Shire of Wiluna advised CALM that it opposed the reservation of the areas as conservation reserves. CALM responded in part as follows:
In addressing this resolution I [Keiran McNamara] refer you to my letter of 31 January 2003 in which I advised that the lands purchased for conservation were acquired through a scientific assessment for suitability for addition to the reserve system. I confirm that Earaheedy and Lorna Glen were purchased for conservation purposes in their entirety after investigations into the conservation values of both leases.
…
Since purchase the Department has been approached by a neighbour for major boundary adjustments as a voluntary lease adjustment under the Gascoyne-Murchison Strategy with Earaheedy and Lorna Glen. The voluntary lease adjustment process, as its name implies, is a voluntary one between adjoining property owners. Given the under representation of the landforms and vegetation communities and other conservation values on Earaheedy and Lorna Glen in the existing conservation reserve system, none of Earaheedy and Lorna Glen are available for other uses. These lands have been purchased for conservation and reservation as part of the formal conservation system. Furthermore, funding support from the Commonwealth Government towards the purchases was provided on the understanding that these areas would be reserved and their values protected in perpetuity. Both the Department and the former Minister for the Environment have formally advised previous correspondents that none of these leases are available for voluntary lease adjustment, given that the vegetation types and landforms present are poorly or not represented in the conservation reserve system. This position remains unchanged and the whole of the former Earaheedy and Lorna Glen leases are proposed to be set aside as conservation parks in accordance with State and Commonwealth Government commitments to establish a comprehensive, adequate and representative system of conservation reserves representing the full range of biological values. Whilst there is a statutory requirement to consult with the Shire on the proposed reservations, there is no requirement for the consent of the local government authority to be obtained before the reservations can proceed under either the Land Administration Act 1997 or the Conservation and Land Management Act 1984.
On 23 May 2003 the Department of Industry and Resources (DOIR, formerly DOME) wrote to CALM. This letter annexed a map showing the department’s position regarding each area of land. The map cannot be located. The letter said:
DoIR’s position is to minimize encroachment of nature reserves or national parks into areas that are assessed as prospective for either minerals or petroleum. This position is based on DoIR’s understanding of the Government’s position in relation to mining and petroleum resource access to lands reserved for conservation.
…
However, DoIR considers that ‘conservation park’ is not an appropriate tenure for areas of moderate to high mineral or petroleum potential, in that the additional conditions and restrictions on access would act as a disincentive for industry investment.
…
It should be noted that in addition to the nine properties (proposals) for which we have indicated ‘support’, there are 13 properties for which we have indicated ‘partial support’. There is scope for reservation of substantial parts of these properties as conservation park (or national park in the case of Mt Florance) with the remaining prospective portions becoming State Forest or some other appropriate tenure that allows mineral and petroleum resource access.
The table annexed to the letter indicated “partial support” as the final position of DOIR for the reservation for conservation purposes of the Earaheedy and Lorna Glen pastoral leases. Earaheedy was said to have moderate to high mineral resource potential and Lorna Glen was said to have moderate mineral potential. The primary judge inferred from the terms of the communication that the missing map showed parts of both areas which DOIR considered suitable for conservation reservation and parts which it considered should become State forest or some other appropriate tenure allowing mineral and petroleum resource access.
On 9 July 2003, CALM wrote to the native title claimants in respect of the native title application, known as Wiluna No 1, in the following terms:
The current provisions of the CLM Act 1984 require management orders for conservation lands to be held by the Conservation Commission of Western Australia.
The Department acknowledges that the native title claimants have procedural rights under the Native Title Act 1993 and that mechanisms will need to be applied to protect native title rights and interests, perhaps through an Indigenous Land Use Agreement, enabling the creation of the reserves. It may be possible for Government to explore how it may be able to secure the future title for these proposed conservation reserves in the traditional owners when the CLM Act is amended.
The resolution of these matters will, by necessity, involve the Office of Native Title and the Department of Land Administration. However, it is important that we canvass your opinions at this early stage with the view to providing better conservation protection for ex-pastoral lands purchased for conservation purposes.
On 28 October 2004, the respondents filed the native title application in respect of the claim area.
On 10 December 2004, after the test time but nevertheless relevant for showing the position as at the test time, DOIR wrote to CALM saying:
On the 22nd April 1999 CALM requested a Section 16(3) Mining Act 1978 clearance for the purpose of creating “Conservation Reserves” of Muggon and Earaheedy Pastoral Leases which are now owned by CALM.
Our director general has no follow up on file, but from reading correspondence on file, the feeling was to “Oppose” this request. Last written correspondence was at 13th August 1999, on file.
This Department holds a reservation in our Tengraph database known as FNA 3028 to protect the proposed change in land use and an audit has shown that this request is outstanding.
The department can find no evidence of the proposed action being formalised.
Please advise if this action has been completed, is still pending or has lapsed.
In March 2005, also after the test time but relevant in the same way, the MOU was revised. Relevant revisions include:
3.Background
…
(g)Interim tenure for the Pastoral Lease Land is required until all clearances and approvals are obtained from Government Agencies, including the Department of Industry and Resources (DOIR) and from native title interests, enabling the Pastoral Lease Land to be set aside as conservation or forest estate.
(h)It is recognised that the interim tenure must:
(i)clearly identify CALM control and management;
(ii)not impact on Mining Act 1978 provisions in relation to Crown land; and
(iii)be able to be achieved as a valid ‘future act’ in compliance with the Native Title Act 1993 (Cth) (NTA).
(i)The preferred interim tenure, consists of reservation for a purpose not incurring the vesting provisions of the CALM Act but without a management order issuing. However, such reservation would remove the Pastoral Lease Land from the definition of Crown land in the Mining Act 1978.
(j)Until reservation under the LAA is achievable (having regard for the NTA’s requirements) an agreement has been reached with DOIR on interim reservation, the interim tenure for the Pastoral Lease Land will consist of unallocated Crown land (UCL) but subject to Management Services being provided under section 33(1)(f) of the CALM Act, or Management Placement under section 33(2) of the CALM Act.
…
5. Acknowledgement
The Executive Director of CALM and the Director General of DPI acknowledge that all pastoral lease land acquired by CALM for the purpose of this MOU will ultimately be added to the conservation or forest estate.
Clauses 6 and 7 of this MOU set out the process for acquiring Pastoral Lease Land and the interim tenure arrangements that will apply prior to Pastoral Lease Land being added to the conservation or forest estate.
…
8. Interim Tenure Arrangements
The parties agree that:
(a)Prior to and in the absence of:
(i)procedural requirements of the NTA being satisfied to enable reservation with the LAA, and
(ii)agreement by the Department of Industry and Resources to interim reservation,
The Pastoral Lease Land will be UCL subject to Management Services or a Management Placement until it is reserved for conservation or forest estate.
On 16 March 2005, also after the test time but relevant in the same way, an officer of CALM summarised the position including the following:
On 31 January 2003 CALM wrote to relevant government agencies (Department of Industry and Resources (DoIR) and Water and Rivers Commission (WRC)), utilities (AlintaGas, Water Corporation; Western Power; Main Roads WA and Telstra), relevant local government authorities and native title representative bodies and claimants to seek their support for the reservation of the pastoral properties purchased for conservation.
•The attached spreadsheet summarises the responses. I make the following comments/observations on responses received:
§DoIR – supported 9 of the 43 areas being reserved as conservation park (subject to a 30 metre depth limit) and gave support for parts of a further 13 areas being reserved as conservation park. DoIRs concern with the reservation category of conservation park is that they consider that it is perceived as having a single use conservation purpose. They are seeking a tenure/purpose that provides them with protection for future resource exploration access over these tracts of land, much of which are largely unexplored. They wish to protect their right of access should Government policy prevent mining and exploration in conservation parks in the future. (Legally exploration and mining in conservation parks outside of the south-west land division requires the recommendation of the Minister for the Environment).
§A meeting was held in November 2003 between CALM (G Wyre, N Caporn, J Gilmour) and DoIR (I Roberts, M Freeman) to discuss DoIRs response.
…
§Native title representative bodies and claimants – opposed the reservations until such times as the CALM Act is amended to recognise the rights and interests of traditional owners.
…
Summary
The two main issues requiring resolution before these purchased lands can be reserved are mining access and native title.
…
With respect to mining, if CALM wishes to pursue the conservation park tenure then given current opposition by DoIR I believe that this may need to be resolved through Cabinet.
…
Given the work already done, I am not convinced a project team approach could overcome the impasses without Cabinet directives.
On 17 September 2007, Cabinet made a further decision in accordance with a minute dated 3 September 2007 as follows:
1.maintains a policy of prohibition on mineral and petroleum exploration and production in national parks and class A nature reserves;
2.allows for mineral and petroleum exploration and production, subject to environmental assessment, in nature reserves and conservation parks not of class A, subject to production projects delivering a net environmental benefit;
3.endorses the reservation of purchased whole and part pastoral leases listed at Attachment 2A [which included the Earaheedy and Lorna Glen leases] as other than class A conservation parks with the exception of additions to the Kennedy Range National Park and agrees to the exclusion of the Jaurdi and Mt Elvire ex-pastoral leases at this stage;
…
9.directs that further consultation occur between the Department of Environment and Conservation, State Solicitor’s Office and Office of Native Title on the best application of Native Title Act processes to create the proposed new conservation reserves.
[Emphasis in original.]
THE REASONS OF THE PRIMARY JUDGE
The primary judge examined whether the intention of the Crown was established by the state of mind of the Minister for Lands, as argued by the respondent in that case, or by the state of mind of the Executive Director of CALM. Her Honour rejected each of those propositions, and at [64] said that:
The reservation of Crown land for conservation purposes raises issues that, almost inevitably, will require a whole of government approach. This would have been the reality at all times.
Her Honour said at [65]:
The question is to be answered having regard to all available evidence about the intention of the State of Western Australia at the relevant times. … [and] is to be determined objectively on the whole of the evidence.
Then, the primary judge addressed the significance of certain Cabinet decisions and said at [66]:
To the extent that the State submitted that the decisions of Cabinet in 1997 and 1998, and the release of its rangelands policy in 1999 [the Rangelands policy], followed by the further Cabinet decision in 2002, disclosed its clear intention with respect to these lands, I also do not accept the submission. All of that evidence is relevant, but it is not determinative. The reasons for this are twofold. First, the focus of s 47B(5) is the specific area the subject of the claimant application. Although the pastoral lease areas in question were specifically acquired to be added to the conservation estate, there are other relevant considerations. These include, in particular, that the Cabinet decisions of 1997-2002 and the rangelands policy concern larger areas of land and are expressed at a high level of generality in respect of that larger area. Further, and as already noted, the reality was always that a “whole of government” position would need to be resolved before any particular land could be reserved for conservation purposes. Second, there are two relevant times at which the intention of the Crown must be ascertained. It is necessary to recognise that an intention which might have existed at one relevant time may have altered or may no longer exist at another time. The evidence at each relevant time must be considered.
The primary judge next set out some indicative guidelines for deciding whether a bona fide intention of the Crown within the terms of s 47B(5)(b)(ii) and (iii) might be found to exist. Her Honour said at [70]:
While each case must turn on its own facts, the requirement of a bona fide intention of the Crown, insofar as any guideline considerations may be identified, indicates that:
(1)What must exist at the relevant times is the bona fide intention itself which, as noted, is a bona fide intention of the Crown, an issue to be determined objectively on the whole of the evidence.
(2)A generalised and vague desire or wish that land be used for a public or particular purpose at some indefinite future time, even if objectively attributable to the Crown, is unlikely to be able to be characterised as a bona fide intention of using the land for that public purpose.
(3)If there is a specific desire or wish, objectively attributable to the Crown, that land be used for a public or particular purpose, that desire or wish may still not be a bona fide intention if in fact the desire or wish is impossible or impractical to fulfil and the Crown knew or must be taken to have known of this impossibility or impracticality.
(4)The existence of desires or wishes to use the land for other purposes, rather than for a public or particular purpose, is likely to be relevant. The prospect of a multiplicity of potentially conflicting uses, for example, might confound any finding that the Crown had a bona fide intention of using the land for a public purpose or particular purpose at the relevant times.
(5)The firmness or permanency of the state of mind which can be attributed to the Crown is likely to be relevant. If the future use of the land is in a state of flux or indecision it might be that it cannot be found that the Crown had the requisite bona fide intention at the relevant times.
Her Honour emphasised that these observations were not intended to be definitive, but were of use in identifying the parameters which might be relevant to the identification of the bona fide intention of the Crown.

The primary judge then explained why she would deal first with the Crown intention as it existed at the date of the native title application. Her Honour said at [73]:
In the present case I propose to deal with the position “at that time” under s 47B(5)(b)(iii) first (that is, as at 28 October 2004). The reason for this is that I consider that the evidence relevant to that time clearly establishes the lack of an intention on the part of the Crown to use the land for the public purposes of conservation and recreation (and, in this regard, it must be recalled that the applicant does not have an onus to prove a lack of intention; the issue is whether the Crown had the required intention on the whole of the evidence).
The primary judge addressed the three issues which determined her view that the Crown did not have a bona fide intention to use the area for public purposes as at 28 October 2004.
The first reason concerned the way in which CALM had used the land. Her Honour said at [74]:
First, although I accept that CALM was in fact carrying out management activities on the areas of land (and had been since it obtained control of the areas) which were not inconsistent with the future use of the land for conservation and recreation purposes, the evidence goes no further than this. CALM’s management of the land was the kind of management that any responsible owner would carry out (weed control, feral animal control, de-stocking, fencing, fire control etc) and was equally not inconsistent with any other future use of the land. Accordingly, CALM’s management activities do not carry the significance which the State attempted to place upon them.
The second consideration concerned the State’s argument that the only doubt about the future of the area concerned matters of tenure, but not of use to which the land was to be put. Her Honour said:
75.Second, it cannot be said that the issues about the future of the areas of land related to tenure only and not use, as the State would have it. This characterisation does not reflect the facts. It is apparent that, although CALM had acquired the land for conservation purposes and undoubtedly wanted the land to be reserved for conservation purposes, CALM knew full well that it had to resolve not just the future tenure of the land, but also its future use, with not only the rest of government but also the native title holders. If the Cabinet decisions of 1997-2002 and the rangelands policy of 1999 had truly made plain that these areas of land were to be set aside and used for conservation and recreation purposes in the future, then the terms of the MOU would not have been framed as they were and the consultation between CALM and other departments, specifically [DOIR], would have been a mere formality. CALM, it might be inferred, did not understand the Cabinet decision or rangelands policy to determine the future use of the lands for conservation and recreation purposes, and nor do I.
76Insofar as the intention of the Crown about use is concerned, moreover, the intention of CALM is not the end of the matter. In light of the whole of the evidence relevant to the position as at 28 October 2004, it is apparent that CALM’s intention about use was no more than a mere desire or wish.
77This is because, in whole of government terms, even the interim holding arrangement established by the MOU was subject to the necessity of not interfering with the mining legislation’s application to the areas of land. Hence, no use of the land (not just the tenure arrangement) was to undermine the application of the mining legislation pending the whole of government resolution which Cabinet (and the rest of the WA government, including CALM) accepted would be required.
78Otherwise, the reality was that CALM accepted that it needed the support of other government departments, including [DOIR] to enable the reservation of the land for conservation purposes. This is why CALM sought such support in its consultation with other departments. Contrary to the State’s submissions this was not merely a matter of land tenure, it was a matter also of use. This is apparent from the terms of the letter of 23 May 2003 from [DOIR]. [DOIR] did give “partial support” to the conservation reservation of the areas in question but, equally, it is obvious that it opposed the reservation of the balance of the areas because it wanted to ensure that they were able to be used for mineral resource extraction purposes. Hence, the State’s attempts to distinguish “reservation” from “use”, which is legally correct, founders on the facts. For [DOIR], tenure was relevant because it controlled use.
79The problem for the State is that it is obvious that, as at 28 October 2004, an impasse had been reached. CALM desired the whole of the areas of land to be used for conservation purposes. [DOIR], it must be understood, opposed any tenure which would mean that the parts of the land which had moderate or high natural resource value could not be used for mining/extraction purposes. The impasse came into existence on 23 May 2003 (at the latest). It is plain that the impasse remained as at (and well beyond) 28 October 2004. That this is so is apparent from the letter of 10 December 2004 to CALM from [DOIR] and the CALM internal report of 10 March 2005, which documents post-date 28 October 2004. They disclose the position as it existed – and as it was known to exist within the State government – as at 28 October 2004.
80As at 28 October 2004, on this evidence, it cannot be said that the Crown had a bona fide intention of using the areas for public purposes of conservation and recreation. There was, at that time, no intention of the Crown to use the areas of land for any particular purpose. There were options as to use available in the future, and competing departmental views about these options, but no actual intention to use the areas of land for any purpose. The only intention that can be attributed to the Crown as at 28 October 2004 is an intention, one day, to bring the matter back to Cabinet so Cabinet could resolve all issues of tenure and use. In the interim, the holding arrangement would continue. That intention is not an intention of the requisite kind.
The third consideration related to the objections raised by the native title holders to the reservation of the land for conservation purposes. The primary judge said at [82]:
Finally, insofar as the native title holders are concerned, CALM’s knowledge of the need to deal with their rights is apparent from the terms of the MOU. Moreover, before 28 October 2004, CALM knew that the native title holders in this case opposed the reservation of the areas of land for conservation purposes. While I accept that some public purposes may be consistent with native title rights and interests, on the facts of the present case, the position of the native title holders was clear. It is difficult to characterise CALM’s undoubted desire to reserve and use the land for conservation purposes as reflecting an intention of the Crown when CALM (and the Crown) knew that any future use of this land would have to be resolved with the native title holders. This too indicates that CALM’s position is best characterised as a desire or wish to use the land for conservation purposes, which desire or wish CALM recognised could not be implemented unless and until Cabinet and the native title holders agreed. As at 28 October 2004 CALM had no way of knowing what might happen in the future. Use of the land for the purposes of conservation and recreation as at 28 October 2004 was very much in the realm of desire, wish, conjecture and speculation of CALM rather than an intention of the Crown.
Thus, her Honour concluded at [83]:
For these reasons, s 47B(5)(b)(iii) is not satisfied. It follows that, on this basis, the negative stipulation in s 47B(1)(b)(iii), is satisfied. The result is that, irrespective of s 47B(5)(b)(ii), s 47B(2) applies. The native title determination to which the parties agree the applicant is entitled must reflect the terms of s 47B (2) of the Native Title Act.
GROUNDS OF APPEAL
The arguments on appeal focused on the two separate grounds stated above which will be considered shortly. However, that consideration should take into account the guideline considerations articulated by the primary judge, as set out at [48] of these reasons, because they were the yardstick by which she assessed the evidence. At the core of her Honour’s reasoning was the conclusion that on an assessment of the facts, the process of government had not reached a stage of sufficient definition to find that the Crown had a bona fide intention of using the land for conservation purposes at the test time. In the end, the assessment whether the process had reached the requisite level of certainty is a matter of judgment. It was not contended that her Honour made any error in articulating the approach to this assessment. We agree that the guidelines utilised by the primary judge properly reflected the terms of s 47B(5)(b)(ii) and (iii). As is now explained, we also agree with her Honour’s assessment that at the test time, the decision making process of the State had not reached the stage where it can be said that there was a bona fide intention of using the land for public purposes or for a particular purpose.
Did the primary judge err in failing to find that when all interests last existing in relation to the land were acquired, the Crown had a bona fide intention of using the land for public purposes or for a particular purpose, namely conservation and recreation?
This raises the order in which the questions were posed issue, as described above.
The primary judge at [73], extracted at [50] of these reasons for judgment, dealt with the intention of the Crown at the time of the native title application (the (iii) intention) because she considered that the evidence clearly established that the Crown did not have an intention at that time to use the area for conservation and recreation.
The State argued on the appeal that the primary judge erred by failing to consider whether the Crown had the relevant intention at the time it acquired the leases (the (ii) intention). In written submissions the State contended:
51.The question posed by section 47B(5)(b) is whether, firstly, the Crown had an intention at the time the land was acquired or surrendered and, secondly, whether the Crown "still" had an intention of that kind at the test time. Whether the Crown ever had the relevant intention will be relevant to a determination of whether it "still" had an intention of that kind at the test time. If it is established that the Crown intended to use land for public purposes when the land was acquired, it may be inferred that such intention continued to be held in the absence of evidence establishing a relevant change in circumstances. In a case such as the present, where there was no evidence of a discarding of any previously held intention to use land for public purposes, the fact that land was acquired for a public purpose counts in favour of the proposition that the intention continued to be held thereafter.
52.By first addressing the question of whether the Crown had a relevant intention at the time the Respondent's native title claim was made, the trial judge effectively excluded from her consideration the circumstances in which the Land was acquired, and the uses for which it was acquired. Those matters were relevant to the identification of the Crown's subsequent intention, in the absence of evidence as to any change in intention. In those circumstances the trial judge erred by addressing the question of whether an intention still existed without having first determined whether the relevant intention had existed when the land was acquired.
The argument of the State may assume that the (ii) intention is always relevant and must necessarily be considered when determining the (iii) intention. Alternatively, the argument may be confined to the circumstances of this case.
In either case, the argument cannot be maintained. Whether the (iii) intention is demonstrated is a judgment to be formed on all of the relevant evidence. However, a finding as to the existence or non-existence of the (ii) intention is not essential to a conclusion that the (iii) intention did not exist. That is so because whatever may have been the intention at the time of acquisition (the (ii) time), the evidence of intention relevant to the test time (the (iii) time) may nevertheless establish a lack of the (iii) intention.
The primary judge did not consider it necessary to express a concluded view as to the existence of the (ii) intention (at [85]-[87]). It is clear however that the primary judge did consider and did take account of the events prior to 28 October 2004 in determining that the (iii) intention did not exist. In recounting the facts in detail, her Honour surveyed the events relevant to the intention of the State from as early as 1996.
The way in which her Honour approached the matter shows that irrespective of whether the (ii) intention existed, her Honour was satisfied that “the evidence relevant to [the (iii) time] clearly establishe[d] the lack of [the (iii) intention]” (at [73]).
In the result, there was no error in the way the primary judge approached this aspect of the case and the first ground of appeal should not be upheld.
Did the primary judge err in finding that the Crown did not still have a bona fide intention of the relevant kind in relation to the land at the test time, namely 28 October 2004?
The use of the land issue
In relation to this question, the first issue raised by the State, described above as the use of the land issue, involved the contention that the primary judge erred in finding that the evidence went no further than establishing that CALM’s management activities were not inconsistent with the future use of the land for conservation and recreation purposes, when the evidence was that the State had in fact used the land for the purposes of conservation and recreation since its acquisition.
For ease of reference, [74] of the reasons of the primary judge is again set out in order to more readily understand the present argument.
First, although I accept that CALM was in fact carrying out management activities on the areas of land (and had been since it obtained control of the areas) which were not inconsistent with the future use of the land for conservation and recreation purposes, the evidence goes no further than this. CALM’s management of the land was the kind of management that any responsible owner would carry out (weed control, feral animal control, de-stocking, fencing, fire control etc) and was equally not inconsistent with any other future use of the land. Accordingly, CALM’s management activities do not carry the significance which the State attempted to place upon them.
The State contended that the primary judge wrongly failed to find that CALM had actually used the land for conservation and recreation purposes, contrary to the pleaded and uncontested position of the parties. The written submissions encapsulated the argument as follows:
53.The State’s contention was and is that the actual continuing use of the Land for the purposes of conservation and recreation was a strong indication of the continued existence of the intention to use the Land for those purposes since the pastoral leases were acquired or surrendered. The trial judge disposed of that contention at [74] of her reasons, in which she found only that CALM's management activities "were not inconsistent with the future use of the land for conservation and recreation purposes" and that the evidence went no further than that. That is, the trial judge was not willing to accept that the State had in fact used the Land for the relevant purposes since acquisition. She described CALM's management of the land as being of the kind that any responsible owner would carry on and which was equally not inconsistent with any other future use of the land.
54.That conclusion was inconsistent with the pleaded position of both parties that, since the relevant acquisition and surrender, CALM has managed the Land for the purposes of conservation and recreation. That agreed position went beyond a statement that management activities were not inconsistent with a future use. It established an existing use of the Land.
…
57.In those circumstances both the pleaded cases and the uncontested evidence established that the Land had in fact been used for the purposes of conservation and recreation since its acquisition or surrender. The trial judge erred in fact in concluding otherwise, and thereby erred in failing to properly take into account the use to which the Land had in fact been put in ascertaining the Crown’s intention to use the Land.
In oral submissions Mr Mitchell SC, who appeared with Ms Taggart as counsel for the State, first took the Court to the respondents’ admission that since the acquisition of the Earaheedy pastoral lease and the surrender of the Lorne Glen pastoral lease, CALM has continuously managed the areas for conservation and recreation. The respondents however, did not admit the activities which constituted such use. Consequently, Mr Mitchell explained, the State led evidence through an affidavit of Ian Gordon Kealley describing those management activities. Mr Mitchell explained that there was little attention given to the reasons why those activities were undertaken because that was conceded. Rather, the evidence went into considerable detail about the activities themselves. Nonetheless, there were indications in the material about the purpose of the activities as well. For instance, Mr Mitchell relied on a publication about building the reserve system in the Gascoyne-Murchison region which was entitled “Filling the Gap”. Although not dated, it was obviously published before 2003. In June 2003, it was sent by CALM to the Department of Agriculture to demonstrate progress in the program of acquiring pastoral leases. Under the heading “Future Management” the publication read:
Leases or parts of leases purchased for the reserve system will be managed for conservation, allowing the land to return to its natural state. Depending on previous impacts, some areas may take considerable time to recover. All domestic stock will be removed from acquired areas and stock from neighbouring properties kept from straying onto reserves. Feral animals, such as goats, camels, donkeys, foxes and cats, will be controlled through trapping, shooting or poisoning programs, which CALM will run in collaboration with lessees of neighbouring properties. Once habitats recover and feral animals are controlled, it should be possible to reintroduce locally extinct or rare native animals such as malleefowl, boodies, bilbies, stick-nest rats and hare wallabies.
Artificial water sources, such as bores and dams, have led to increased numbers of feral animals and kangaroos, which in turn have affected plant communities. Watering points will be closed down once all domestic stock has been removed, in a way that is sensitive to the animal populations that now rely on them for survival. During this adjustment period, it will be important to monitor numbers to ensure that unreasonable grazing pressure does not occur on adjoining leases.
…
The restoration of the natural ecosystems and reintroduction of native animals to their former habitats would mean the restoration of nature’s balance. It may take a little time to achieve this, but we are already making a difference.
Mr Mitchell argued that this and other similar evidence demonstrated more than the existing use of the land. It was wrong for the primary judge to downplay its significance by the finding that the evidence only established that the use was not inconsistent with future use for conservation and reservation. Rather, the evidence was supportive of an intention to use the land for conservation and recreation in the future.

In the proceedings before the primary judge, the State relied on the existing use of the land by CALM for conservation and recreation purposes as an indication of the intention of the Crown to use the land for those purposes in the future. Her Honour considered the significance of the activities undertaken by CALM for the purpose of assessing the future intention of the Crown. She accepted the agreed position concerning the existing activities of CALM, but did not accept the argument of the State that those activities established an intention to use the land for conservation or recreation purposes in the future. Her Honour did not depart from the agreed position between the parties in relation to the existing use of the land, but rather assessed the significance which that existing use had for the issue under consideration, namely, the use to which the State intended to put the land in the future. The significance of the evidence about the present use of the land had to be considered in the context of all the circumstances.
The vice in the argument of the State is that it isolates the issue of present use of the land as an indication of future intention. The significance of the present use had to be evaluated in all the circumstances of the case, including the nature of the decisions of Cabinet, and the state of the debate between departments. It also had to be evaluated against the requirements that the use of the land was to be determined by a whole of government approach. This was the process of evaluating the significance of the present use of the land which the primary judge undertook. There was no error in the significance which her Honour attributed to the evidence of the present use of the land.
The Cabinet decisions issue
The second issue raised by the State in relation to this question is the Cabinet decisions issue, as described above.
The State contended that the primary judge erred in concluding that decisions of the Cabinet did not disclose a clear intention with respect to the land, and that Cabinet’s further decision of 3 September 2007 was made too long after the test time to disclose anything relevant about the intention of the Crown at the test time.
The 1997, 1998 and 2002 Cabinet Decisions
The argument of the State in relation to these Cabinet decisions concerns part of [66] of the reasons of the primary judge which again, for convenience, is repeated below. Relevantly, her Honour said:
To the extent that the State submitted that the decisions of Cabinet in 1997 and 1998, and the release of its rangelands policy in 1999, followed by the further Cabinet decision in 2002, disclosed its clear intention with respect to these lands, I also do not accept the submission. All of that evidence is relevant, but it is not determinative. The reasons for this are twofold. First, the focus of s 47B(5) is the specific area the subject of the claimant application. Although the pastoral lease areas in question were specifically acquired to be added to the conservation estate, there are other relevant considerations. These include, in particular, that the Cabinet decisions of 1997-2002 and the rangelands policy concern larger areas of land and are expressed at a high level of generality in respect of that larger area. Further, and as already noted, the reality was always that a “whole of government” position would need to be resolved before any particular land could be reserved for conservation purposes.
In relation to the whole of government approach, the primary judge had already said at [64]:
The reservation of Crown land for conservation purposes raises issues that, almost inevitably, will require a whole of government approach. This would have been the reality at all times. That this was the reality is reflected in the terms of the MOU which expressly identified that the land could not be reserved for conservation purposes unless and until all intra-governmental approvals had been obtained (as well as external approvals, including from native title holders). The MOU pre-dates the acquisition and surrender of the pastoral leases (17 March 1999 for the Earaheedy pastoral lease and 1 August 2000 for the Lorna Glen pastoral lease) and the making of the claimant application (28 October 2004). The reality is also reflected in the Cabinet decision of 20 November 2002. Cabinet noted that the establishment of a conservation reserve “requires a co-ordinated approach involving all relevant agencies”. Although this decision was made after the pastoral leases were acquired and surrendered (as relevant), to this extent, the decision does no more than record what the position would always have been.
The argument of the State was articulated in its written submissions at [58] as follows:
The trial judge found that evidence of the Cabinet decisions of 1997, 1998 and 2002 did not disclose a "clear intention with respect" to the Application Area because those Cabinet decisions concerned larger areas of land and were expressed at a high level of generality in respect of that larger area.
The State then went on to argue that the primary judge should have found that these Cabinet decisions amounted to a direction to CALM to use the areas of the pastoral leases for conservation purposes. In essence the State contended that the Cabinet decisions were determinative of the intention of the Crown to use the area for conservation purposes.
In oral submissions Mr Mitchell criticised the primary judge’s reliance on the fact that the Cabinet decisions and the Rangelands policy were concerned with a larger area than the two pastoral leases. He contended that the Cabinet decisions applied to the land in question. The intention to reserve and use a larger area is still an intention to reserve and use the components of the area for the particular purposes. He also submitted that whilst the Cabinet decisions required a whole of government approach, Cabinet, by its decisions resolved what that whole of government position was to be.
The primary judge accepted that those decisions of Cabinet were relevant to the issue. But her Honour said that they were not determinative. Her Honour accepted that the Cabinet decisions demonstrated that the pastoral leases were “specifically acquired to be added to the conservation estate”, but she said that there were other relevant considerations as to whether the State had a clear intention of using the area for conservation purposes. One of those considerations was the generality with which the Cabinet decisions and the policy on which they were based were expressed.
That conclusion was supported by the evidence. Whilst it is true, as the State contended, that the Rangeland strategy report which was the subject of the 1997 Cabinet decision had the objective of creating comprehensive, adequate and representative conservation reserves, the report did not descend into detail about the particular use of particular land. The aim was to acquire about 25 properties at a cost of $7.5 – $10 million. The funds had not been provided when the 1997 Cabinet decision was made. CALM had limited funds, and doubts were expressed in the Rangelands strategy report that CALM would have sufficient funds to manage the proposed reserve system.
The State had a wider policy expressed in a document entitled “Managing the Rangelands”. That policy statement seems to have been before Cabinet when it made the 1997 decision. It provides the context for the proposal for conservation reserves on pastoral leases acquired for conservation. In part the policy document explained:
WHAT ARE THE RANGELANDS
The Rangelands of Western Australia are those vast areas of land north and east of the agricultural area.
The Rangelands include:
·    the State’s pastoral areas which comprise land made available by lease to pastoral and mining interests (often concurrently), and to a much lesser extent, agricultural interests. Pastoral leases cover 98 million hectares which stretch from Great Australian Bight to the Kimberley;
·    national parks, conservation reserves and special leases;
·    large tracts of Crown Land; and
·    Aboriginal Reserves.
The importance of the Rangelands are that they:
·    occupy 85 per cent of the State;
·    produce most of the State’s mineral and energy wealth;
·    are of special significance to the Aboriginal population;
·    support important segments of the beef and wool industry;
·    offer major tourism potential;
·    contain essential elements of the State’s biological diversity;
·    offer opportunities to produce horticultural products for niche markets.
CHALLENGES
The Rangelands face many challenges including:
·    the beef and wool industries are based on natural vegetation which has a limited, and seasonal carrying capacity: Declining terms of trade are also an issue for these industries;
·    current land tenure arrangements limit security of tenure, flexibility of land use and the development of alternative industries;
·    communities are isolated;
·    the need to plan and manage a range of alternative land uses including tourism in an environmentally acceptable manner;
·    the need to establish a framework for the conservation of biological diversity and sustainable development;
·    the history of land use has left a legacy of land degradation that cannot be readily overcome by current management.
A number of reports have drawn attention to the need for Government to address these challenges, especially with respect to the Pastoral Areas.
The same policy document was released publicly in March 1999 (the Rangelands policy). The objectives of the policy for the environment which are set out at [23] of these reasons for judgment were themselves broad. But the proposals for conservation were set in a much wider context which involved, amongst other factors, the need to address the use of the land for business opportunities, especially mining, and also to consider the interests of native title holders. The primary judge was therefore correct to find that the 1997 and 1998 Cabinet decisions were expressed with a degree of generality that did not exhibit an intention to use the acquired leases for conservation and recreation purposes.
The primary judge also found that the Cabinet decisions, particularly the 2002 Cabinet decision, required a whole of government approach before the land could be reserved for conservation and recreation. Until the inter-departmental discussions were concluded, there was no final resolution of the use of the land. Her Honour returned to this issue at [75], where she said:
Second, it cannot be said that the issues about the future of the areas of land related to tenure only and not use, as the State would have it. This characterisation does not reflect the facts. It is apparent that, although CALM had acquired the land for conservation purposes and undoubtedly wanted the land to be reserved for conservation purposes, CALM knew full well that it had to resolve not just the future tenure of the land, but also its future use, with not only the rest of government but also the native title holders. If the Cabinet decisions of 1997-2002 and the rangelands policy of 1999 had truly made plain that these areas of land were to be set aside and used for conservation and recreation purposes in the future, then the terms of the MOU would not have been framed as they were and the consultation between CALM and other departments, specifically [DOIR], would have been a mere formality. CALM, it might be inferred, did not understand the Cabinet decision or rangelands policy to determine the future use of the lands for conservation and recreation purposes, and nor do I.
The State argued that the MOU recognised a commitment ultimately to reserve the land for conservation and recreation. For instance the MOU “recognised the State’s commitment to establishing a comprehensive, adequate and representative (CAR) conservation reserve system in the rangelands of Western Australia …”. Further it stated “Until all clearances/approvals are sought from Government agencies such as the Department of Minerals and Energy and from native title interests enabling the land to be set aside as a conservation reserve or State forest, an interim holding tenure is needed.”
And in [4] of the MOU:
The Executive Director of CALM and the Chief Executive of DOLA acknowledge that pastoral leases acquired by CALM will ultimately be added to the conservation or forest estate.
Mr Mitchell submitted that the MOU expressed no doubt about what the ultimate outcome would be. It recognised a commitment ultimately to reserve the land for conservation.
However, the MOU also recognised, in the provision set out at [84] of these reasons, that such an outcome was dependent on agreement between government departments. The primary judge was correct to conclude that this provision in the MOU demonstrated that the proposed outcome was conditional. The MOU would not have been expressed in that way if the Cabinet decision had resolved the final use of the land.
The State also contested the conclusion of the primary judge that if the Cabinet decisions had resolved the future use of the lands for conservation and recreation the exchanges between departments would have been a formality, but that this was not the way they acted. The argument centred around correspondence between CALM and DOIR.
On 31 January 2003, CALM wrote to DOIR relevantly:
In accordance with normal procedures for the establishment of conservation reserves required by the Department of Land Administration, I am writing to seek your support for the reservation of the lands listed in Attachment 2 with a management order issued to the Conservation Commission of Western Australia and management by the Department of Conservation and Land Management.
On 23 May 2003, DOIR replied. The response is referred to at [37] of these reasons. However, the argument should be assessed by reference to the full terms of the letter, which read as follows:
I refer to your letter of 31 January 2003, in which you requested DoIR support for the reservation of 43 former pastoral lease areas purchased for conservation.
I enclose a broad-scale map, that shows the location of the 43 proposals in relation to the underlying geology, and two tables, that provide details of the mineral and petroleum resource assessment for each proposal, as well as DoIR’s position.
The assessment and position are based on reviews of detailed geological mapping, mineralization and petroleum data and mineral resource information, and in some cases, discussions with petroleum and mineral resource geologists with expertise in particular commodities or regions.
DoIR’s position is to minimize encroachment of nature reserves or national parks into areas that are assessed as prospective for either minerals or petroleum. This position is based on DoIR’s understanding of the Government’s position in relation to mining and petroleum resource access to lands reserved for conservation.
It is appreciated that the Government policy concerning conservation parks is that tenements can be granted, subject to the recommendation or concurrence of the Minister for Environment and Heritage, as appropriate. DoIR recognises that the relevant conditions in relation to environmental management and rehabilitation would also apply.
However, DoIR considers that ‘conservation park’ is not an appropriate tenure for areas of moderate to high mineral or petroleum potential, in that the additional conditions and restrictions on access would act as a disincentive for industry investment.
DoIR is also concerned that the purpose of ‘conservation park’ is seen in both Government and the wider community as a single-use tenure, and that therefore a multiple-use (including mineral or petroleum resource access) is generally deemed to be inappropriate. It is further considered by DoiR that there may be future changes in relation to access to conservation parks, reflecting the recent changes that have very much limited resource access to nature reserves.
DoIR recommends that in relation to properties, or parts of such properties, that are prospective for minerals and/or petroleum, that officers from DoIR and DCLM seek to reach agreement on an appropriate multiple-use land tenure that would retain and guarantee future access by the mineral and petroleum sector to such areas.
Such an approach is consistent with principles of the draft State Sustainability Strategy whereby proposals for future land-use should be based on a combination of all relevant parameters, thus ensuring that management arrangements will be of most benefit for future Western Australians.
In considering alternative forms of tenure that might be appropriate for reservation of the prospective properties and prospective areas, State Forest is acceptable, on the basis that access for exploration, mining and petroleum production purposes (in areas outside the South-West land division) would not be unduly restricted under such tenure. Likewise a Section 5h reserve (for resource and conservation management) is another type of tenure that is considered appropriate in such situations.
It should be noted that in addition to the nine properties (proposals) for which we have indicated ‘support’, there are 13 properties for which we have indicated ‘partial support’. There is scope for reservation of substantial parts of these properties as conservation park (or national park in the case of Mt Florance) with the remaining prospective portion becoming State Forest or some other appropriate tenure that allows mineral and petroleum resource access.
The State’s conservation estate has been established to protect or conserve the biological heritage or scenic values. These are, with few exceptions, located within a short distance of the earth's surface. It is possible that access to mineral or petroleum resources at depth below the conservation estate could be feasible with no impact on these surficial values. The State has already protected access to mineral resources at depths greater than 30 m below all developed private property using the Mining Act. In keeping with this principle, agreement to the reservations in this letter will be conditional on all reserves having a depth limit of 30 m below the natural ground surface. As you will be aware, this was adopted for the Locke Estate Nature Reserve (41972) and proposed for some reserves through the RFA process.
Because of the large overlap between prospective areas and DCLM-owned pastoral leases, it is suggested that officers of DoIR and DCLM discuss this issue further.
[Emphasis added.]
Mr Mitchell contended that the correspondence was consistent with an intention to use the land for conservation and recreation because, in this letter, DOIR accepted that use. It was from that starting point that DOIR sought to ensure an additional use for mining on some parts of the area.
However, the underlined passages in particular spoke in terms of the need for an agreement between the departments about the use of the land. The issue was unfinished business. There were fundamental differences between the approaches. The letter ended with the suggestion that the contending positions should be discussed between officers of the departments. There was no error in the primary judge’s conclusion that the terms of this correspondence reflected an understanding between the departments that the Cabinet decisions had not determined the future use of the lands.
The 2007 Cabinet Decision
The primary judge determined that the Cabinet decision made on 17 September 2007 in accordance with a minute dated 3 September 2007, was made too long after 28 October 2004 to disclose anything relevant about the intention of the Crown at that time.
The State contended at [64] of its written submissions:
The 2007 Cabinet decision was made within three years of the making of the Application, and did not exist in isolation. It was one of a series of Cabinet decisions made over a number of years, commencing prior to the relevant test time, recording that Cabinet had formed an intention, and made decisions about, the creation of a conservation estate and the conversion of areas including Lorna Glen and Earaheedy to conservation parks. In that context, the 2007 Cabinet decision is probative of the fact that where the intention of the Crown continued to exist as at 2007, the necessary intention had so existed as at 28 October 2004.

There may be circumstances in which evidence of a Cabinet decision made after the date at which the intention must be shown may be probative of the intention existing at the earlier time. For instance, the later Cabinet decision may directly advert to the intention at an earlier time. But the argument to which the primary judge was responding in this case was that the existence of an intention in 2007 to use the land for conservation purposes was probative of the existence of the same intention in 2004. Her Honour made no error in finding that the later decision was too remote in time to demonstrate any intention which existed in 2004.
The treating the debate about the kind of reservation as a debate about use issue
The third issue raised by the State in relation to the question concerns what has been described above as the treating the debate about the kind of reservation as a debate about use issue.
The State contended that the primary judge, having correctly recognised that the relevant question concerned the intended use rather than the intended reservation of the land, erred in treating statements about the future reservation of the land as concerning its intended use.
The State also contended that, in a related way, the primary judge erred in finding that mineral resource extraction and/or the application of mining legislation over the land was in conflict with the Crown having a bona fide intention to use the land for the purpose of conservation and recreation, in circumstances where the evidence did not support such a finding.
In concluding that the Crown did not have the intention as at 28 October 2004 of using the land for conservation, her Honour relied on evidence of the State of discussions between DOIR and CALM as reflected in the letter between them dated 23 May 2003. The State argued before the primary judge that this discussion concerned the tenure on which the land was to be held, and did not relate to the use of the land.
At [75]-[78] the primary judge rejected this submission. In particular at [78] her Honour said:
Otherwise, the reality was that CALM accepted that it needed the support of other government departments, including [DOIR], to enable the reservation of the land for conservation purposes. This is why CALM sought such support in its consultation with other departments. Contrary to the State’s submissions this was not merely a matter of land tenure, it was a matter also of use. This is apparent from the terms of the letter of 23 May 2003 from [DOIR]. [DOIR] did give “partial support” to the conservation reservation of the areas in question but, equally, it is obvious that it opposed the reservation of the balance of the areas because it wanted to ensure that they were able to be used for mineral resource extraction purposes. Hence, the State’s attempts to distinguish “reservation” from “use”, which is legally correct, founders on the facts. For [DOIR], tenure was relevant because it controlled use.
On appeal, the State contended that the primary judge erroneously found that this letter was concerned with the use of the land and not with the tenure on which it was to be held.
In support of the argument that DOIR was concerned about the kind of reservation which would be applied to the land, and not about the use of the land for recreation and conservation, the State submitted that the letter was written in the context of Cabinet decisions which directed that the land be used for conservation and recreation. The letter shows that DOIR accepted this position, and was advocating for an alternative type of reservation which would avoid “limited resource access” to such reserves.
The foundation of this argument is a characterisation of the Cabinet decisions which has been rejected earlier in these reasons for judgment. The Cabinet decisions were not determinative of an intention on the part of the Crown of using the land for conservation and recreation purposes. The argument therefore founders at the first obstacle.
Furthermore, the discussion which the letter of 23 May 2003 reflects is about the extent and manner in which the land might be used for mining. The references to the desired tenure were references to the process by which that use would be permitted or limited. The discussion was essentially about the way the land would be used. The tenure arrangements were necessary to implement the agreed use. The primary judge did not err in determining that the issues about the future of the land did not relate only to tenure, but also to use.
The Native Title Holders issue
The fourth issue raised by the State in relation to this question concerns the native title holders issue, as described above. The State contended that the primary judge erred in finding that the State could not use (or reserve) the land for the purposes of conservation and recreation unless the native title holders agreed to that use (or reservation).
The third factor which caused the primary judge to conclude that the Crown did not have the required intention as at 28 October 2004 was that it would not implement its desired course unless the native title holders agreed, and they had not done so.
The primary judge expressed it at [82] thus:
It is difficult to characterise CALM’s undoubted desire to reserve and use the land for conservation purposes as reflecting an intention of the Crown when CALM (and the Crown) knew that any future use of this land would have to be resolved with the native title holders. This too indicates that CALM’s position is best characterised as a desire or wish to use the land for conservation purposes, which desire or wish CALM recognised could not be implemented unless and until Cabinet and the native title holders agreed.
The State submitted that the primary judge erred because the agreement of the native title holders was not required. If their agreement could not be obtained, it was open to the State to acquire the land by compulsion. In response, the respondents contended that there was no evidence that the State ever intended to compulsorily acquire the native title holders’ interests. To that argument, the State said that the occasion for compulsory acquisition had not arisen. The native title determination had not been made and CALM and the respondents had made an agreement on 6 December 2004 for the management of the land in the meantime “for the conservation of flora, fauna and Aboriginal heritage, tourism and recreation”.
The State characterised the need to deal with the native title holders as an obstacle, but not a precondition to its intention to use the land. The State submitted that to treat the issue as a precondition to intention would be tantamount to saying that there could never be a relevant intention to use land when native title parties are concerned unless there was already in place an indigenous land use agreement, or the State had otherwise indicated that it would acquire the native title interests by compulsory acquisition under the Act.
In our view, this issue is to be determined not as an either/or question, but rather on the facts in each relevant case.
The conclusion of the primary judge in this case was supported by the terms of the revised MOU, which is reproduced at [42] of these reasons, and which provided that the interim tenure for the pastoral lease land was required “until all clearance and approvals are obtained from … native title interests, enabling the pastoral leased land to be set aside as conservation or forest estate”. It was agreed in the MOU that the arrangements would remain in place until the procedural requirements of the Act had been satisfied. The primary judge also relied on the summary of the position made by the officer of CALM on 16 March 2005. The summary is extracted at [43] of these reasons for judgment, and included:
The two main issues requiring resolution before these purchased lands can be reserved are mining access and native title.”
This evidence, as her Honour correctly concluded, demonstrated that the Crown’s intention in early 2005 was that there would be no reservation without the agreement of the native title holders. The Crown did not contemplate using mandatory powers to acquire the land. No error is demonstrated in the reasoning of the primary judge on this issue.
CONCLUSION
For the foregoing reasons, the appeal is dismissed.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and Bromberg.
Associate:
Dated: 1 August 2014

Citation:	State of Western Australia v BP (Deceased) [2014] FCAFC 95
Appeal from:	BP (Deceased) v State of Western Australia [2013] FCA 760
Parties:	STATE OF WESTERN AUSTRALIA v BP (DECEASED), TILLY STEVENS, KEN CLAUSE, BENNY CAMPBELL and BETTY ANDERSON
File number:	WAD 360 of 2013
Judges:	NORTH, BARKER AND BROMBERG JJ
Date of judgment:	1 August 2014
Catchwords:	NATIVE TITLE – pastoral leases acquired by the Crown – application for determination of native title made over land – resumption process – s 47B(5)(b) Native Title Act 1993 (Cth) – whether the Crown had a bona fide intention of using the land for public purposes or for a particular purpose at the time the land was acquired – whether the Crown still had such intention at time native title application was made – whether primary judge erred in only considering intention of the Crown at the time of the application for native title – whether primary judge failed to properly take into account use to which the land had been put by failing to find that activities by CALM on the land were for conservation purposes – whether error in primary judge’s finding that Cabinet decisions did not amount to bona fide intention to use the land for conservation – whether error in finding that lack of consent of native title holders meant no bona fide intention
Legislation: Cases cited:	Native Title Act 1993 (Cth) ss 47B, 61 Warren v Coombes (1979) 142 CLR 531 Fox v Percy (2003) 214 CLR 118
Date of hearing:	24 February 2014
Date of last submissions:	24 February 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	113
Counsel for the Appellant:	Mr R M Mitchell SC with Ms C I Taggart
Solicitor for the Appellant:	State Solicitor's Office
Counsel for the Respondent:	Mr V B Hughston SC

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 360 of 2013

JUDGES:	NORTH, BARKER AND BROMBERG JJ
DATE OF ORDER:	1 AUGUST 2014
WHERE MADE:	PERTH

JUDGES:	NORTH, BARKER AND BROMBERG JJ
DATE:	1 AUGUST 2014
PLACE:	PERTH