Rangiah J
In this case, Rangiah J considered whether the application of s 47B of the Native Title Act 1993 (Cth) (‘NTA’) was excluded in relation to five specified areas. Where s 47B applies, any extinguishment of native title rights and interests must be disregarded. However, s 47B(1)(b)(ii) excludes the application of s 47B where the area is covered by a proclamation, dedication, condition, permission or authority under which all or part of the land is to be used for public purposes or a particular purpose.
ID Area 572
His Honour found that land reserved for sale for “public recreation” under s 101 of the Crown Lands Act of 1884 (NSW) on 27 January 1900 – which included ID Area 572 – was a temporary reservation. This was confirmed by s 10 of the Crown Lands (Amendment) Act 1927 (NSW), and was never revoked. Citing Daniel v State of Western Australia [2003] FCA 666, His Honour found that a temporary reservation can be a reservation under s 47B(1)(b)(ii) of the NTA. He also concluded that the reservation for 'public recreation' was for 'public purposes' under s 47B(1)(b)(ii) of the NTA. His Honour concluded that the application of NTA s 47B to ID Area 572 was excluded under s 47B(1)(b)(ii) of the NTA.
ID Area 115
At the date of the native title determination application there were two reservations covering ID Area 115. The first, under s 101 of the Crown Lands Act of 1884 (NSW), reserved the land “from sale pending determination of the portions to be set aside for the public purpose of recreation.” The effect of s 10 of the 1927 Amending Act was that the entirety of ID Area 115 became reserved “for the purpose of public recreation.” His Honour concluded there was no material difference with ID Area 572 and came to the same conclusion that the application of s 47B was excluded.
ID Area 74
The issue to be determined was whether Reserve 755693 was a reservation made by the Crown under which all or part of ID Area 74 was to be used for public purposes. The requirement under s 47B(1)(b)(ii), that the land ‘is to be used for public purposes’ is not satisfied in the present case. Where the Minister’s intention was no more than that the land might be used for public purposes in the future, and the reservation left open a substantial prospect that the land would be used for private purposes. Thus, the land did not fall within s 47B(1)(b)(ii).
ID Area 460
A permissive occupancy (PO 79/8) was granted on 9 October 1979 to John Stanley Smith for the purpose of grazing. On 29 June 2007, ID Area 460 was added to Reserve 755736 for 'future public requirements.' When the application for native title was made on 24 June 2013, ID Area 460 was covered by both Reserve 755736 and PO 79/8. For the reasons given in relation to ID Area 74, the reservation covering this area was not one under which all or part of the land was to be used for public purposes or a particular purpose under s 47B(1)(b)(ii) of the NTA. In regards to PO 79/8, His Honour found that the Minister intended that ID Area 460 be used by the grantee for the purpose for which the permissive occupancy was granted, namely, grazing. His Honour concluded that ID Area 460 was therefore covered by a permission or authority granted by the Crown under which the whole of the land was to be used for a particular purpose, bringing the land under s 47B(1)(b)(ii) of the NTA.
ID Area 624
The position in respect of ID Area 624 was very similar to that in respect of ID Area 460. On about 30 November 1987, the permissive occupancy described as 1960/21 was granted under s 136K of the Crown Lands Consolidation Act 1913 (NSW). The purpose was stated to be ‘grazing.’ Similarly to ID Area 460, His Honour concluded that ID Area 624 was covered by a permission granted by the Crown under which the whole of the land was to be used for a particular purpose. Therefore, the land fell within s 47B(1)(b)(ii) of the NTA.
Conclusion
The application of s 47B of the NTA was excluded in relation to all five areas, meaning the extinguishment of native title rights and interests could not be disregarded.