In this case, the full court considered an appeal of a native title determination made pursuant to s 13 of the Native Title Act 1993 (Cth) (‘NTA’). The appeal concerns four areas of Crown land in New South Wales that fell within that claim. The first two areas – Areas 572 and 115 – were covered by a reservation from sale and reservation from sale and lease, respectively, and therefore were considered to be reserved for a public purpose within the definition of s 47B of the NTA. The second two areas – Areas 460 and 624 – were each covered by a reservation and a permissive occupancy license for grazing, and were therefore reserved for a ‘particular purpose’ under s47B(1)(b)(ii) of the NTA. It also dealt with, whether the separate question procedure under the Federal Court Rules 2011 (Cth) employed by the parties in the primary proceeding was appropriate.
ID Area 572
In respect of Area 572 the parties agreed that the land had been ‘reserved from sale pending determination of the portion to be set apart for public recreation’ pursuant to s 101 of the Crown Lands Act of 1884 (NSW) (‘Crown Lands Act’). The primary judge found that this was considered ‘reserved for a public purpose’, and that ‘it was to be used for that purpose’ within the terms of s 47B of the NTA.
ID Area 115
In respect of Area 115 the parties agreed that the land had been ‘reserved from sale pending determination of the portions to be set aside for the public purpose of public recreation’ pursuant to s 101 of the Crown Lands Act. Additionally under s 39 of the Crown Lands Act the area had been reserved and exempted from lease generally. The primary judge found that this area was not materially different to ID Area 572, and therefore came to the same conclusion.
ID Area 460
In respect of Area 460 the agreed facts recorded that on 9 October 1979, under s 136K of the Crown Lands Consolidation Act 1913 (NSW) (‘CLC Act’), the Minister for Lands granted permission to occupy Crown lands including ID Area 460, described as permissive occupancy 79/8 Lismore. Additionally, on 18 July 2008, by notification in the New South Wales Government Gazette, under section 88 of the Crown Lands Act 1989 (NSW), the Minister for lands added all crown land held under license or permissive occupancy under the Crown Lands Acts that is not already within a reserve (including Area 460) to Reserve 755736. The primary judge found that because the permissive occupancy was granted for the purpose of ‘grazing’, that constituted a “particular purpose” within the terms of s 47B(1)(b)(ii) of the NTA.
ID Area 624
In respect of Area 624 the agreed facts recorded that on 30 November 1987, under s 136K of the CLC Act, the Minister for Lands granted permission to occupy Crown Lands including ID Area 624, described as permissive occupancy 1960/21 Lismore. Additionally on 29 June 2007, by notification in the New South Wales Government Gazette, under section 88 of the Crown Lands Act 1989 (NSW), the Minister for Lands added all Crown land held under license or permissive occupancy (including Area 624) to Reserve 755747. The primary judge concluded that this area was not materially different to Area 460, and therefore came to the same conclusion.
Separate Question Procedure
In regard to the separate question procedure, under r 30.01 of the Federal Court Rules 1979 (Cth), their honours relied heavily on the judgments made in AWB Ltd v Cole (No 2) (2006) 253 FCR 288 and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (‘Bass’). In Bass the High Court found that because there were no agreed facts and no findings of fact to provide the necessary foundation for the separate questions in that matter, the separate question procedure was rejected. This reasoning was applied in the current case due to the position being essentially the same as in Bass. The Court makes the point at [80] however, that there is nothing in these reasons that should be taken to deny the utility of the separate question procedure in native title litigation.
Conclusion
For the reasons stated above the separate question procedure was found to be inappropriate and the answers given by the primary judge to these questions were set aside, with the issues to be determined without a further oral hearing.