Mansfield J
This matter concerned parcels of land that formed part of the Adnyamathanha people's native title claim over a substantial area of land to the north of Hawker in South Australia. The respondents were the State of South Australia, South Australia Native Title Services Ltd and Epic Energy South Australia Pty Ltd.
The parties agreed that by historic grant of perpetual leases native title was otherwise extinguished over the identified parcels. The applicants maintained that s 47A of the Native Title Act 1993 (Cth) (NTA) applied so that all of the freehold and leasehold estates and any other interests created in the parcels of land prior to the filing of their native title application were to be disregarded for all purposes in relation to the application.
Section 47A (1)(b)(i) NTA provides that extinguishment of native title can be disregarded if the grant of a freehold estate, lease or vesting took place under legislation for the benefit of Aboriginal People or Torres Strait Islanders.
Section 47A(1)(b)(ii) NTA provides for extinguishment to be disregarded if an area is held on trust, or reserved, for the benefit of Aboriginal peoples or Torres Strait Islanders.
The Court's answer to the applicants' stated case regarding section 47A depended on the construction and application of s 47A(1)(b)(i) and (ii) of the NTA.
Background
Between 1890 to 1958, South Australia granted perpetual leases over the land under the Crown Lands Act 1929 (SA) or its ancestors. These acts extinguished native title.
Around February 2000 the Indigenous Land Corporation (ILC), a corporation established under the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI) to assist Aboriginal people acquire and manage land, acquired the 25 perpetual leases.
On 9 March 2001 the ILC transferred 24 of the leases to Viliwarinha Yura Aboriginal Corporation (VYAC), a registered Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), subject to a Conditional Deed of Grant. In May 2002 the remaining perpetual lease was transferred to VYAC subject to the same terms.
In February 2009, ILC consented to the conversion of 9 of the perpetual leases to freehold land in favour of VYAC by deed, subject to various obligations VYAC owed to the ILC. The parties agreed that the grants of freehold were not made for provision of health and welfare services: see s 47A(2)(b) NTA.
The Adnyamathanha People claimed that extinguishment of native title is to be disregarded over the 16 parcels of perpetual lease land and the 9 parcels of freehold land in accordance with s 47A(1)(b)(i) and (ii) of the NTA.
Questions answered
Whether s47A(1)(b)(i) NTA applied so that the perpetual lease land?
Mansfield J found that the 16 parcels of perpetual lease land were 'vested' in VYAC by the ILC under the ATSI Act, and this vesting satisfied s 47A(1)(a)(i), as the section makes provision for the vesting of such things only to, or for the benefit of, Aboriginal peoples.
For this reason Mansfield J answered Yes.
Whether s47A(1)(b)(i) NTA applied so the freehold land?
Mansfield J concluded that VYAC surrendered its 9 leasehold interests, acquired from ILC under the ATSI Act, to obtain freehold titles and the grant of these freehold estates was made under the Real Property Act 1886 (SA), not the ATSI Act.
As the focus of s 47A(1)(b)(i) is upon the direct way in which the vesting took place, although the agreement between VYAC and ILC was an integral step in the vesting process, the property legislation did not have the character required by s 47A(1)(b)(i).
For this reason Mansfield J answered No.
Whether s47A(1)(b)(ii) NTA applied so that the perpetual lease land?
His Honour noted that the general purpose of sections 47A and 47B is to enable Aboriginal people in occupation of an area where there are no longer competing third party interests to have the Court disregard the earlier tenure history in determining whether native title rights and interests exist. Mansfield J also noted that this was consistent with s 47A(3), which addresses the status of existing prior interests and Crown interests and the applicability of the non-extinguishment principle as explained in s 238 of the NT Act
Mansfield J considered the status of VYAC as an Aboriginal corporation, the conditions under which it holds each of the areas of the perpetual lease land – in particular the terms of a Deed of Grant between the ILC and VYAC, a caveat registered consistent with those terms, and the restrictions on the membership of VYAC – as satisfying the wording of s 47A(1)(b)(ii).
For this reason Mansfield J answered Yes.
Whether s47A(1)(b)(ii) NTA applied so the freehold land?
Similarly, Mansfield J considered the freehold land is held by VYAC, an Aboriginal corporation, subject to its obligations to the ILC not to dispose of its legal or equitable interest in the land without the ILC’s prior consent and various covenants preventing it from changing its status and obliging it to hold and use the freehold land for purposes consistent with its rules. Accordingly, s 47A (1)(b)(ii) applied to the freehold parcels.
For this reason Mansfield J answered Yes.