North, Barker and Bromberg JJ
Justices North, Barker and Bromberg provided a joint judgment dismissing the State’s appeal of the decision in BP (Deceased) v State of Western Australia [2013] FCA 760. In that case, the primary judge ordered the parties to finalise the terms of a determination of native title included that the terms of the agreement should feature the right to access and take the resources for any purposes.
The State’s grounds of appeal were about the way the primary judge had applied s 47B of the Native Title Act 1993 (Cth) (the NTA). This section allows prior extinguishment of native title to be disregarded, if the land in question is designated vacant Crown land. Under subsection 47B(1), prior extinguishment may be disregarded if one or more members of the native title claim group occupy the area and, when the application is made, the area is not:
covered by a freehold estate or a lease; or
covered by a reservation or authority that the area is to be used for public purposes or for a particular purpose; or
subject to a resumption process.
In this appeal, the State contended that the area was subject to a resumption process.
Under subsection 47B(5)(b), an area is subject to a resumption process at a particular time (the test time) if:
all interests in relation to the area had been acquired, resumed or revoked by, or surrendered to, the Crown before the test time; and
when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
the Crown still had a bona fide intention of that kind in relation to the area at the test time.
The State argued that the primary judge was in error because:
the primary judge failed to find that when all interests last existing in the determination area were acquired, the Crown had a bona fide intention of using the land for public purposes or for a particular purpose, namely conservation recreation; and
the primary judge found that the Crown did not still have a bona fide intention of that kind in relation to the land at the test time of 28 October 2004.
The State said that the error by the primary judge was based on her making inferences on documentary evidence about the intention of the State for the use of the land.
At paragraph [12], the appellate Court discussed that it would give respect and weight to the primary judge’s reasoning and decision, but that it would make its own decision about the proper inferences to be drawn.
The Court then reviewed the facts to determine the bona fide intention of the Crown at the test time. This included consideration of discussions in the Western Australian Cabinet as well as a thorough examination of the reasoning of the primary judge and the State’s ground for appeal.
At [112], the appellate Court agreed with the primary judge that the evidence:
demonstrated that the Crown’s intention in early 2005 was that there would be no reservation without the agreement of the native title holders and that the Crown had not contemplated using mandatory powers to acquire the land.