In this appeal proceeding North, Dowsett and Jagot JJ constituting the Full Court of the Federal of Australia made the following orders:
In WAD 217 of 2017 the Court ordered that (1) the appeal be allowed, (2) the determination contained in the orders given on 27 April 2017 be amended by (a) deleting miscellaneous licence L53/109 from Part 2, Schedule 4 of the Attachment ‘A’ and (b) inserting miscellaneous licence L53/109 into Part 1, Schedule 4 of attachment ‘A’ and (3) each party pay its or their own costs of the appeal.
In WAD 218 of 2017 the Court ordered that: (1) the appeal be allowed, (2) the determination contained in the orders given on 27 April 2017 be amended by: (a) deleting miscellaneous licences L53/161 and L53/177 from Part 2 Schedule 4 of attachment ‘A’ (b) inserting miscellaneous licences L53/161 and L53/177 into Part 1, Schedule 4 of attachment ‘A’ (c ) removing from Schedule 5 that part of UCL 245 which is covered by exploration licence E57/676, (3) the cross appeal be dismissed, (4) each party bear its or their own costs of the appeal and cross appeal, (5) the appellant file and serve a consolidated determination, reflecting the orders in this matter and WAD 217 of 2017, within 14 days.
[1] After a 15 day hearing in July, August, October and December 2015 Mortimer J gave judgment in Narrier v State of Western Australia [2016] FCA 1519. In the course of doing so the appellants contend that her Honour erred in some respects.
[2] BHP Billiton Nickel West Pty Ltd contends that the primary judge erred in respect of one of the multitude of interests in the land which she was confronted being miscellaneous licence L53/109 relating to an access road. The primary judge held the BHP licence to be invalid because it had been granted without complying with the future act provisions of the Native Title Act 1993 (Cth) (NTA). The Full Court allowed BHP’s appeal on the basis that failure to comply with the future act provisions of the NTA does not affect the validity of the BHP licence.
[3] The State of Western Australia contends that the primary judge erred in respect of two other miscellaneous licences, L53/161 and L 53/177 which both relate to ‘search for groundwater’. The primary judge held these licences to be invalid future acts. The Full Court allowed the State’s appeal because the licences were valid future acts by operation of s 24HA of the NTA which provides for the management of regulation of water or airspace.
[4] The State further contended that the primary judge erred in respect of an exploration licence, E57/676 granted under s 59 of the Mining Act 1978 (WA) in that her Honour ought to have found that this licence was a ‘lease’ for the purposes of the NTA and that as a result s 47B(1) could not apply to the area of land covered by E57/676. The Full Court allowed this aspect of the State’s appeal holding that E57/676 is a lease for the purposes of the NTA and thus the area which it covers cannot be subject s 47B NTA.
[5] The applicant for the native title claim group by way of cross appeal contended that the primary judge erred in finding certain areas of Crown land, referred to as UCL 239, UCL 14 and UCL 15, were not occupied by the claim group when the application claiming native title were made, which meant that s 47B did not apply to those areas of land. The Full Court dismissed this aspect of the applicant’s cross-appeal because: ‘her Honour made reasonably open findings of fact on the evidence, without any error of principle and in circumstances where her Honour had the substantial advantage of hearing the witnesses and viewing the relevant locations, with the consequences that the findings of fact are not amenable to appellate review.’
[6] The applicant also contended that the primary judge erred in not holding that s 47B of the NTA applied to ‘that part of UCL 11 in relation to which the condition of occupation was satisfied’. The Full Court held that this aspect of the applicants’ cross-appeal be dismissed because ‘it is founded on a misunderstanding of the applicant’s own case and her Honour’s findings.’
BHP Licence
[8] It was common ground before the primary judge and in BHP’s appeal that miscellaneous licence L53/109 (referred to as the BHP licence) was a future act that passed the freehold test but in respect of which the State did not comply with the requirements of s 24MD(6B) of the NTA.
[17] Section 24AA(4)(j) refers to s 24MD that provides for acts that pass the freehold test. The freehold test is provided for in ss 24 MA (legislative acts) and 24 MB (non-legislative acts) of the NTA. The BHP licence is a non-legislative act. By s 24MB(1)(b)(i) such an act passes the freehold test if ‘the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it.’ As noted, the BHP licence passed the freehold test and s 24MD applies.
[18] It was also common ground before the primary judge that s 24MD(6B)(b) (which refers to the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility…associated with mining) applied with the consequence that the State was required to comply with the notification and consultation requirements in s 24MD (6B)(c)-(g). In the primary hearing the applicant also attempted to submit that there was non-compliance with s 24MD(6A) however no such case was put in the appeal proceeding. Nor can the case be put on appeal as it would require BHP to have an opportunity to adduce further evidence.
[19] Section 24MD(1) refers to Subdivision P. Section 26 NTA specifies the future acts to which Subdivision P applies. The grant of the BHP licence is not identified in s 26 as an act to which Subdivision P applied because it falls within an exclusion in s 26(1)(c)(i) being a right to mine created for the purpose of construction of an infrastructure facility… associated with mining. Section 24OA provides that: ‘Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.’
[20] The Full Court concluded that the primary judges’ conclusion that the BHP licence was invalid because it was granted without compliance with s24MD(6B) was an error and that it follows from section 24MD(1) that the BHP licence is valid. [21] Whilst the primary judge concluded that the context of the NTA read as whole supported the contrary view the Full Court disagreed for nine substantive reasons.
[22] First s 10 NTA recognises and protects native title ‘in accordance with this Act’. The provisions of the NTA and the objects specified in s 3(a) to provide for the recognition and protection of native title and s 3(b) to establish ways in which future dealings affecting native title may proceed set the standards for those dealings and how they may be achieved. They are not to be achieved other than in accordance with the provisions of the NTA.
[23] Second ss 24AA (2) and (4) both use the concept of ‘covered by’ as the criterion for validity. Thus, a future act will be valid if it is ‘covered’ by the nominated provisions, which includes s 24MD. The Full Court agreed with BHP’s submissions that: to be ‘covered by’ a provision means no more than that the particular act in question is an act of the class to which any of the listed sections in s 24AA(4) apply. The Full Court found that contrary to the applicant’s submission there is a difference between s 24AA(5) and (6). Section 24AA(5) identifies that for certain acts to be valid it is necessary to satisfy subdivision P. ‘Section 24AA(6) states that the Division ‘also deals with procedural rights and compensation for the acts.’ The Full Court found that it is apparent that the procedural rights in Division 3 are not said by s 24AA(6) to condition validity and that the requirements of Subdivision P, by contrast are said by s 24AA(5) to condition validity.
[24] Third the Full Court concurred with BHP’s description of the categories of future acts and the statutory scheme thereby established set out in this paragraph in summary:
Subdivision F-N of Part 2 covers various future acts and validation on 3 levels:
future acts that are likely to have the least impact on native title are validated without conditions or further requirements (other than payment of compensation)
future acts that are likely to have a greater impact on native title are validated and an associated notification regime is imposed (Subdivision JAA, Subdivision KA and Subdivision M for example)
two species of future acts that have the greatest impact on native title because they involve a right to mine (or certain types of compulsory acquisition) are validated subject to compliance with the right to negotiate in Subdivision P.
BHP argued that ‘This three-fold classification evinces a legislative intention that future acts that do not involve rights to mine will not be invalidated by a failure to adhere to procedural requirements.’
[25] Fourth the language of the provisions is internally consistent. Thus s 24MD(1) NTA states that if Subdivision M applied to a future act then, subject to Subdivision P, the act is valid. The same structure is evident in a number of other provisions including: s 24GB(5), s 24HA(3), s 24ID(1), s 24JB(1), s 24KA(3), s 24LA(3), s 24LA(3), s 24NA(2).
[27] Fifth the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA – management and regulation of air space and the associated notification requirements. Importantly the Full Court notes that a failure to notify under that regime ‘will not affect the validity of the future act’…‘There is no discernible difference between this provision and other procedural provisions in Div 3 of Pt 2 of the NTA.’
[29] Sixth the role of s 24OA in the statutory scheme is apparent from s 24AB particularly s 24AB(2) which provides that: ‘To the extent that a future act is covered by a particular section in the list in paragraphs s 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.’ Sections 24FA to 24NA are part of a hierarchy. If an act is in an earlier provision it cannot be in a later provision. This is critical because the procedural and other compensation rights in the nominated provisions are different. Section 24 OA is a residual provision which immediately follows the last provision in the hierarchy, s 24NA.
[30] Seventh the text and structure of Subdivision M itself also supports the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in the invalidity of the future act. The Full Court stated that: ‘It is also apparent that the procedural requirements are not expressed to condition validity.’ Section 24MD(6) makes plain that the procedural requirements in ss 24MD(6A) and (6B) only apply if Subdivision P does not apply. The Full Court further stated that: ‘It cannot be said, as the applicant would have it, that such a consequence should be implied in ss 24MD(6A)-(8) because those provisions are a substitute for Subdivision P; the provisions constitute their own regime in respect of which the legislature has not provided for invalidity to the consequence of non-compliance.’
[31] Eighth the Full Court agreed with BHP’s submission that if ‘a failure to comply with the notification requirements in s 24MD96B) renders invalid the relevant future act, then the same must presumably be so of the other procedural requirements in Subdivisions F-N, since there is no meaningful distinction between them.’
[32] Ninth and again with the Full Court concurring with BHP’s submission:
‘A number of procedural requirements in Subdivision F-N afford native title holders or claimants procedural rights sourced outside the NTA. For example s 24MD(6A) gives native title holders the same rights they would have if they instead held ordinary title to land…There is no discernible legislative intention to invalidate future acts in the event that they are in breach of State and Territory laws over which the Commonwealth legislature has no control.’
[33] The Full Court concluded that ‘for these reasons the text, structure and context of the NTA do not support the primary judge’s conclusion about the consequences of non-compliance with these procedural requirements. In particular when the statutory scheme is considered as a whole the primary judge’s analysis of the function of s 24OA cannot be sustained.’
[34] The Full Court disagreed with the primary judge’s conclusion at [1034] that ‘s 24OA provides sufficient statutory indication of a legislative intention that compliance with procedural requirements is a precondition to a future act having force and effect against native title.’ For the reasons provided by the Full Court they asserted that s 24OA supports the contrary conclusion.
[36] The Full Court stated that whilst ‘Her Honour’s perceptions of unfairness are hardly ill founded’…‘the text and structure of the provisions, construed in context, all point to the legislature having intended precisely that which her Honour found objectionable.’ The Court also found that ‘there is some force in her Honour’s observations that the possible remedies of declarations and injunctions to restrain a future act which has not been the subject of the required notification and consultation is “wholly unsatisfactory”’. The Full Court asserted however that ‘the consequence of breach of statutory requirement is always dictated by legislative purpose alone.’ And legislative purpose is determined by reference to ‘the language of the relevant provision and the scope and object of the whole statute.’ See Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 at [388]-[391] citing Tasker v Fullwood [1978] 1 NSWLR 20 at [24].
[37] The Full Court asserted that ‘fidelity to the statute and to the principles of statutory construction, in which legislative purpose is identified from the terms of the legislation construed in context, demand a conclusion contrary to that of the primary judge…Here the scope and objects and context of the NTA as a whole support the conclusion, inescapable once the structure and language of s 24MD(6B) is considered, that the legislature did not intend that an act done in breach of s 24MD(6B) would be invalid.’ The Full Court could not distinguish as the primary judge had, the Full Court decision in Lardil Peoples v Queensland [2001] FCA 414 in so far as failure to comply with the notification and consultation requirements in the future act regime is not sufficient to invalidate the future act itself. See French J as he then was at [58]-[59]; Merkel J at paragraph [72] and Dowsett J at [117]-[120]
[38] The primary judge recognised that her construction was inconsistent with that of the Full Court in Lardil which had been followed by two single judges of the Court in Banjima People v Western Australia and others (No 2) [2013] FCA 868 and Daniel v State of Western Australia [2004] FCA 1388. Her Honour distinguished Lardil on two bases. Firstly, because the observations in Lardil were obiter dicta ([at 1003]) and secondly, as her Honour put it, ‘Lardil was not a case dealing with native title rights and interests which had been recognised as existing.’ The Full Court regarded this to be an error identifying the importance of the doctrine of precedent to the question of whether one Full Court should reconsider a previous Full Court decision: Transurban City Link Ltd v Allan [1999] FCA 1723.
[39] The Full Court in this appeal proceeding stated that ‘the obiter dicta in Lardil was fully reasoned’…‘and has been followed by two single Judges of this Court’, and therefore the characterisation of the reasoning as obiter dicta was not a proper foundation to depart from the Full Court’s construction. In the Full Court’s view the distinction that the primary judge drew between claimed and established native title was not supported by the NTA. The Full Court cited Lardil at paragraph [120]: ‘if invalidity is the consequence of the non-compliance with the procedural requirements, then that consequence applies to native title claims irrespective of their merits.’ [43] The Full Court found that the fact that the claim to native title in the present case had been established could not affect the question of construction and found the construction in Lardil to be correct.
[44] The Full Court also disagreed with the applicant’s submission that Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 supported the primary judge’s conclusion. The Full Court distinguished the decision in Forrest. In that case the failure to comply with the requirements for the granting of a mining lease under the Mining Act invalidated the mining lease based upon the reasoning in Project Blue Sky.
[45] The Full Court allowed BHP’s appeal and consequently the orders constituting the determination of native title made on 27 April 2017 required amendment to confirm the validity of the BHP licence.
Groundwater licences
[46] The primary judge dealt with miscellaneous licences L53/161 and L53/177 at [1098]-[1120]. Her Honour concluded that these licences were not future acts to which s 24HA(2) applied.
[47] It was common ground that each licence had been granted under s 91 Mining Act 1978 (WA) and regulation 42B(ia) of the Mining Regulations 1981 (WA) for the purpose of ‘search for groundwater.’ [53] By s 24HA(3) NTA such an act is valid.
[53] The primary judge observed at [1113] that by s 24HA(2) ‘the requisite connection must be between the legislation and the management/regulation of surface or subterranean water’. This was not in dispute. However at [1115]-[1119] her Honour concluded that, given s 91(6) of the Mining Act, the legislation requires the prescribed purposes to be ‘directly connected with the mining’ so that the prescription of water related purposes in the regulations also had to be directly connected with mining and thus did not satisfy s 24HA(2). At [1118] her Honour stated: ‘Section 24HA is concerned with the legislation (and administrative or executive acts authorised by the legislation) having a connection with water (in its usual sense as the State submits). It is not concerned with legislation (and administrative or executive acts authorised by the legislation) having a connection with mining.’
[54] The Full Court considered the distinction that her Honour had drawn between the Mining Act and the regulations to be unwarranted. ‘It is s 91 of the Mining Act together with the Regulations which constitute the relevant “legislation” under s 24HA(2), not the Mining Act as a whole. This is because, on the terms of s 24HA(2), the only relevant legislation is the legislation under which the future act has been granted.’ [55] In the Commonwealth v Grunseit [1943] HCA 47 at [82] Latham CJ said: ‘The general distinction between legislation and the execution of legislation is that the legislation determines the content of the law as a rule of conduct or a declaration as to the power, right or duty, whereas executive authority applies the laws in particular cases.’
[57] The issue is whether the legislation under which the future act was granted, wherever the legislation be found and whatever form it may take (Act, regulation, by law ordinance or otherwise) relates to the management or the regulation of identified matters. The Full Court found that if the grant of a lease, licence, permit or authority is under that legislation, s 24HA(2) applies. This construction of s 24HA(2) is supported by extrinsic material.
[58] The State pointed out in its submission that s 24HA was enacted as part of the substantive amendments in the Native Title Amendment Act 1998 (Cth). Point 8 of that 10 point plan was concerned with ‘the ability of governments to regulate and manage surface and subsurface water; off shore resources and airspace, and the rights of those with interests under any such regulatory or management regime would be put beyond doubt.’
[59] The Full Court said that the construction that it prefers accords with the language of s 24HA(2) and the legislative intention: ‘On that basis it matters not where the provision is located, what form it takes, whether it is embedded in laws dealing with other topics or stands alone, or whether it is part of a statute or delegated legislation. Provided the provision under which the future act is granted is legislation and relates to the management or regulation of water, s 24HA(2) is engaged.’
[62] The Full Court then stated that it is readily apparent that the miscellaneous licenses L53/161 and L53/177 were granted under legislation that relates to the management or regulation of subterranean water: ‘Together, s 91(1) and reg 42B(ia) are legislation that relates to the management or regulation of subterranean water because they authorise the grant of a relevant act under which the licence holder may search for groundwater…Legislation which provides for the grant of a licence to search for groundwater directly connected with mining is legislation which relates to the management or regulation of subterranean water.’
[63] It follows that in [1115] of her reasons the primary judge’s question whether the Mining Act related to surface or subterranean water ‘was not posed by s 24HA(2) as this section is not concerned with the character of the Mining Act.…It is only concerned with whether the future act was granted under legislation...Provisions which enable the grant of a licence authorising a search for groundwater directly connected with mining satisfy this description.’
[64] The Full Court allowed grounds one and two of the State’s appeal and held that miscellaneous licences L53/161 and L53/177 are valid by operation of s 24HA(3) of the NTA and the determination made by the primary judge was to be amended accordingly as part of the Court’s orders.
Exploration licence
[65] Although the State identified eight exploration licences granted under s 59 of the Mining Act, the State accepted that only one such licence (E57/676) is affected because the other exploration licences did not exist at the date of one of the claimant applications and the relevant time under s 47B NTA is ‘when the application is made’. The issue was whether contrary to the primary judge’s conclusion, an exploration licence under the Mining Act is a lease for the purposes of the NTA, including s 47B(1)(b)(i) NTA. If so, s 47B(2) NTA, requiring prior extinguishment of native title to be disregarded, cannot operate.
[67] Division 3 of Part 15 of the NTA concerns leases. [70] If an exploration licence under s 59 of the Mining Act (WA) is a lease for the purposes of the NTA, including s 47B then by s 47B(1)(B)(i) the area the subject of the exploration licence is excluded from the operation of s 47B(1) and thus prior extinguishment under s 47B(2) cannot be disregarded.
[71] The primary judge dealt with the issue at paragraphs [1194]-[1210]. Her Honour held that: ‘Despite the definition given to the verb ‘mine’ in s 253, in my opinion the NT Act defines a mining lease more narrowly, even taking into account s 242(2). It looks to the use of the land, and requires that the land be used “solely” or “primarily” for mining. There is no evidence that the exploration licences in question permitted the licensee to use the land or waters they covered “solely” or “primarily” for mining.’
[72] The Full Court disagreed stating that:
The verb includes “explore or prospect for things that may be mined”. By s 253, this meaning must be given to “mine” in the NTA unless the contrary intention appears. It follows that cognate words such as “mining” are to be construed consistently with the word “mine” (s 18A of the Acts Interpretation Act 1901 Cth).
[76] The Full Court rejected the applicant’s argument that s 242(2) NTA operates only where the words ‘mining lease’ appears in the NTA so that s 47B(1)(b)(i) was not engaged by exploration licence E57/676. [77] The Full Court held that ‘the reference to “lease” in s 47B(1)(b)(i) thus includes any mining lease. And “mining lease” includes any licence to mine. And a licence to mine includes a licence to explore or prospect things to mine.’ The Full Court held that the primary judge ‘erred in concluding at [1207] that a “mining lease” involves a narrower concept than that of the defined verb “mine”.’ [81] For these reasons the Full Court accepted and allowed the State’s grounds of appeal 3 to 7, to the extent they relate to exploration licence E57/676.
Occupation in s 47B(1)(c) of the NTA
For s 47B(2) to apply s 47B(1)(c) requires that when the application is made one or more members of the claim group occupy the area.
[82] The applicant contended in their cross-appeal that the primary judge erred in her approach to s47B(1)(c) by ‘requiring that presence or activity in an area by members be coupled with proof of some further or other more specific sense of purpose or entitlement in order to demonstrate occupation of the area by that presence or activity and that presence or activity not be opportunistic [1236] – [1245]. According to the applicant this placed an unwarranted gloss on the statute that jars with the statutory text and context and fails to recognise that presence and activities are in the context of traditional law and custom.
[83] The Full Court disagreed with the applicant and held that the primary judge had not fallen into error: ‘The submissions for the applicant attempt to take observations in her Honour’s reasons out of context, elevate those observations to the level of principle and then attribute alleged errors of principle to her Honour. The Full Court upheld her Honour’s reasons at [1212] – [1232] as comprehensive and accurate. See paragraphs [83] – [87].
[88] The State submitted that proof of connection does not equate to proof of occupation. The Full Court ‘accepted that where there is a native title right of exclusive occupation that right to exclude strangers from the land indicates occupation, but this does not mean that any form of presence or activity on land establishes occupation (Moses v Western Australia [2007] FCAFC 78 at [216]). [89] The Full Court also set out in its reasons for judgment that the primary judge’s references to ‘opportunistic’ needed to be seen in context. See paragraphs [89]-[92].
[96] The applicant’s cross appeal that the findings of the primary judge with respect to UCL 14/15 (Tjiwarl) were not occupied by one or more members of the claim group as wrong was rejected by the Full Court. [97] The primary judge did not accept the occupation requirement with respect to UCL 239 at [1233]-[1239]. The primary judge accepted the occupation requirement for UCL 245 and UCL 246 and the Full Court concluded that appellate restraint was required because the primary judge observed more evidence with respect to UCL 245 and UCL 246 than she did with respect to UCL 239. The Full Court upheld her Honour’s findings – see paragraphs [98]-[100].
[101] With respect to UCL 14 and UCL 15 the primary judge’s findings were upheld and the applicant’s cross appeal rejected. [102] The Full Court upheld her Honour’s findings with respect to the BHP Billiton sign that had been erected with the involvement of the Aboriginal community to keep non-Aboriginal people out. The applicant asserted that Mr James was involved in the erection of the sign and therefore occupied the land, but the Full Court did not find in favour of the applicant in their cross appeal and argument on this issue. [104]-[106] The Full Court rejected any allegations of error on the primary judge’s part with respect to Mr Muir’s evidence.
[107] Their Honours further considered the applicant’s approach taken to the primary judge’s reasons ‘untenble’ with respect to the final ground for appeal relating to UCL 11 (Yakabindie Homestead). The Full Court upheld her Honour’s findings. [111] The Full Court stated that ‘The applicant never identified for the primary judge which part of UCL 11 was said to be the subject of s 47 B’ with such level of detail which is necessary. The Full Court further stated that: ‘It is apparent that the primary judge took the most beneficial view of the evidence as reasonably possible but was cofounded (sic) [confounded] by the fact that one way or another an applicant must identify the area it contends to be the subject of s 47B.
[112] The Full Court concluded stating that: having given the applicant the opportunity to make further submissions about the issue it was incumbent upon the applicant to give the primary judge sufficient information to a clearly articulated claim to UCL 11 and it did not do so: and on that basis the application for leave to amend was rejected as in the Court’s opinion it would be meaningless as it would still not be known which part of UCL11 was subject to s 47B.
[113] For the reasons provided the Full Court rejected the applicant’s cross appeal and the notice of contention was not pressed by the applicant and the Court felt no need to make comments upon the notice.