This matter concerned the validity of interests over two areas of land near Nullagine in the central Pilbara region. These areas are within the overlapping native title claims by the Nyamal and Palyku People. Firstly, Justice Reeves found that a reserve was valid, extinguishing any native title in the first area. Secondly, a lease granted over the other area failed to comply with statutory requirements, rendering it invalid with no impact on native title. Only the Palyku People made submissions, with the State of Western Australia responding.
Background
The Nyamal and Palyku native title claims await determination in the Nullagine overlap proceeding. The present matter was a preliminary determination to assess if the native title claims were possible, given the other interests over the land. The public reserve was created in 1895 for the purpose of ‘commonage’. It was later vested in the Shire of East Pilbara in 1973. The leased land had a history of various interests. All parties conceded that exclusive native title was extinguished by the an oil prospecting right granted in 1921. The land was then subject to multiple pastoral leases, forming Riverdale Station. In 1953, Northern Mining, the first Aboriginal owned mining company, sought to purchase the leases but the company became liquidated. Riverdale Station was sold to the Department of Native Welfare in 1955 for Indigenous use, and the individual leases were forfeited in 1957. In 1975, the lease was transferred to the Western Australian Aboriginal Lands Trust. It expired in 1978.
Validity of the leases
Applicant submissions
The Nyamal applicants adopted a neutral position in this matter. The Palyku applicants submitted that both the reserve and the lease were invalid based on the following:
The reserve for ‘commonage’ was argued to be a purpose outside of r 32 of the Land Regulations 1887 (WA). The Land Act 1933 (WA) references vesting reserves made under ‘this act’, which the applicants argued excludes the pre-established reserve, and the reserve was hence invalidly vested.
The lease was acquired for a non-statutory purpose. In relation to native title, the Palyku contended it would be inconsistent to extinguish native title based on a lease created for Indigenous use, and the lease lacks the requisite clear intention to do so.
The Palyku also argued the s public notice in 1957 did not comply with statutory requirements. It was highlighted that the lease was created between two arms of the same executive, and as an expired lease, the determination only impacts the native title claimants.
Decision
The Reserve
Upon analysis of r 32 Land Regulations 1887 (WA), his honour held that commonage was a permissible purpose, and the reserve was validly created. In considering whether vesting was valid, his honour concurred with the state. Although the reserve was created earlier, it is ruled by the Land Act 1933 (WA), which now operates with the Land Amendment Act 1948 (WA). This was supported by the statutes, as well as the ‘absurd’ result that would follow accepting all reserves in Western Australia established before 1948 could not be vested. The reserve was hence validly vested as per s 33 of the Land Act 1933 (WA), necessarily wholly extinguishing any native title interest over land and waters in the reserve.
The Lease
Whether the lease validly granted is dependent on provisions in the Land Act 1933 (WA). Justice Reeves applied the judgment in Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30, although relevant to a different statute, which held compliance with statutory requirements is mandatory to make a valid grant. These formal requirements reinforce transparency and accountability. At [124], his honour found the lease was invalid as it was granted before an application was made and prior to public notice being given. The notice also lacked the purpose of the lease. Both Forrest and this judgment (at [122]) considered the public inconvenience from the decision, which is limited to the applicant, rather than any third parties. His honour did note that lease was granted for public purposes, but this was deemed insufficient to validate the lease. Accordingly, native title is not extinguished over the second area.