Reeves J
In this matter, Reeves J heard separate questions on extinguishment in relation to the historical grant and conversion of a number of grazing homestead leases, and the dedication of a road, all of which are located in the vicinity of the town of Taroom in Western Queensland. Reeves J held that the leases and the road were valid, constituting previous exclusive possession acts as defined by s 23B of the Native Title Act 1993 (Cth) (NTA). Each of those interests had the effect of extinguishing exclusive possession native title over the land and waters concerned.
There were 29 respondents including the State of Queensland, various shire and regional councils, petroleum and pastoralist interests. The parties to the native title application agreed in principle to the terms of a proposed consent determination, with the exception of the questions relating to extinguishment of native title dealt which is dealt with in this separate judgement.
The Road Issue
This issue concerned the validity of a road and whether the presumption of regularity could be relied upon by the State of Queensland (the State) because the State lacked evidence to prove the road was validly dedicated and established. The applicant argued that the presumption of regularity only applies to executive acts prior to the exercise of a statutory power, and each of the grants was made after, and not before, the supposed proclamation had been made.
Reeves J did not consider the application of the presumption of regularity was limited in this way, at [30], and found that it could be inferred that the road would not have been granted unless the applicant included the proclamation declaring the land open for selection. On that reasoning, it can also be inferred that the duty to publish the proclamation was fulfilled.
His Honour concluded that the land marked as a road on the plan constituted the dedication of that area of land as a public road, and the road is therefore a ‘public work’ within the meaning of s 253 of the NTA. The dedication, made prior to the commencement of the Racial Discrimination Act 1975 (Cth), was valid and therefore operated as a previous exclusive possession act under s 23B(7) of the NTA to extinguish all native title rights and interests that existed in the area of land comprising that road, at 37].
The Metwally Issue - prospective validation of past acts as historical facts
It was not in dispute that the relevant leasehold interests all arose after the enactment of the Racial Discrimination Act 1975 (Cth) (RDA); were inconsistent with the RDA; rendered invalid by the operation of s 109 of the Constitution because the leasehold interests extinguished native title and left other titles intact; and all of the interests had come into existence and been surrendered before the NTA came into effect on 1 January 1994 when the NTA.
The dispute was whether the executive acts (grants of leases) and legislative acts (conversions of the grazing leases) were validated by the NTA despite the fact that all of these interests came into existence and were surrendered before the past act validation provisions of the NTA came into effect.
The applicant argued that as the leases ceased prior to the NTA and QNTA coming into operation, none of the acts could be retrospectively validated by the ‘past acts’ provisions of the NTA and the QNTA, at [51].
The State argued that the Commonwealth and State governments can act together to overcome the effects of invalidity under s 109 of the Constitution, if the Commonwealth first removed the source of the inconsistency and then allowed the State to pass validating legislation. The State therefore submitted the combined provisions of the NTA (ss 7, 19 and 228) and QNTA (s 8) achieved an effective validation of the past invalid acts associated with the leases, at [52].
Reeves J considered the scheme for validation of past acts in the NTA and drew on the plurality judgment in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 which considered in detail how the NTA and the QNTA overcome the s 109 inconsistency with the RDA.
Section 11 of the NTA provides that native title cannot be extinguished contrary to the NTA. Section 7 recognises that native title is substantially protected from extinguishment by the RDA but s 7(3) states that the RDA does not affect the validation of past acts under the NTA. It was held that by enacting those provisions, the Commonwealth removed any future inconsistency with the RDA in relation to past acts, allowing State laws to be enacted in the future to validate past acts in accordance with s 19 of the NTA, see [71].
Reeves J confirmed that the leases were invalid between the date of commencement of the RDA and the advent of the NTA and QNTA in 1994. Their continuing existence as past invalid acts was a central qualifying criteria for the operation of the validating provisions of the NTA and QNTA. If, at that time, they fell within the carefully drafted terms of the definitions in the NTA by virtue of the provisions of the NTA and the QNTA, from that time onwards they were validated as acts of the State and, as such, they became effective as exceptions to the exclusive code in the NTA to extinguish any native title rights and interests interests.
Reeves J held that s 8 of the QNTA validated the past acts and extinguished native title despite the fact that the leasehold interests had been surrendered some years before the NTA and the QNTA came into effect and comprised exclusive possession acts under s 23B of the NTA, at [76].