Jagot J
Background
This matter concerns the question of whether the extinguishment of native title resulting from the grant of pastoral leases over two areas of land must be disregarded in accordance with s 47B(2) of the Native Title Act 1993 (Cth). The claim area covers land the subject of two pastoral leases, Earaheedy pastoral lease and the Lorna Glen pastoral lease.
Section 47B(2) applies to a native title claim if, when filed, the relevant area is not subject to:
Section 47B(1)
a freehold or lease;
a Crown reservation, proclamation, dedication, condition, permission, authority or any Act that reserves the land for a public purpose or a particular purpose; or
a resumption process.
The State of Western Australia (the State) contended that as at 28 October 2004, when the native title application was filed, the area was subject to a permission under which the whole or parts of the claim area were to be used for public purposes or a particular purpose and/or were subject to a resumption process. The reason this was contentious is that it would negate the application of s 47B(2) to the claim area, which allows for extinguishment the result of the grant of a pastoral lease to be disregarded.
Section 457B(5)(b) states that an area is subject to a resumption process if at the relevant time all interests last existing in relation to the area were acquired, resumed or revoked by, or surrendered to the Crown who had and continues to have a bona fide intention of using the area for public purposes. The parties agreed on the dates on which the pastoral leases commenced and when they were surrendered to the State. The issues under dispute concerned whether as at 28 October 2004 all of the elements of this provision were satisfied, particularly the Crown’s bona fide intention to use the land for conservation purposes.
Section 47B(1)(B)(II) - The permission issue
The areas in this case are unallocated Crown land, which is governed by the Land Administration Act 1997 (WA) (Land Act).The State’s submission that the area was subject to a permission at the relevant time, pursuant to s 47B(1)(B)(ii), was said to be constituted by a memorandum of understanding between the Department of Conservation and Land Management (CALM) and the Department of Land Administration, entered into in March 2000 (MOU). This date is before the two pastoral leases were surrendered to State. It is common ground that at no time had the areas of land in the present case been reserved for a public purpose under the Land Act or the Conservation and Land Management Act 1984 (WA) (CALM Act). Instead, CALM exercised de facto control over the land under the MOU.
The stated purpose of the MOU was to formalise arrangements between the two departments for the interim holding of land purchased or transferred under pastoral lease title to add to the conservation estate. The MOU recognises the State’s commitment to establishing a comprehensive reserve system in the rangelands of Western Australia though the acquisition of pastoral leases. The MOU also specifies that CALM will manage the lands in accordance with their goals, which include conservation priorities and facilitating public enjoyment.
The MOU specifies that for the pastoral leases to be held by CALM, it is necessary to obtain clearances from government agencies, specifically the Department of Minerals and Energy, and native title interests enabling the land to be set aside for conservation. Until this is achieved, the MOU endorses an interim holding tenure, which consists of the land remaining unallocated Crown land but subject to a management arrangement under s 33(2) of the CALM Act.
The State submitted that the MOU operated as a permission conferred by the Crown under which the whole of the area was to be used for the public purpose of conservation and recreation, thereby satisfying s 47B(1)(b)(ii) of the Act. The Court said that the question of whether the MOU constitutes a permission under s 47B(1)(b)(ii) depends on the terms of the instrument.
The Court held that, firstly, assuming the MOU constituted the relevant permission, it did not consider that the land in question is to be used for the public purposes of conservation and recreation under that permission. Secondly, the Court said it was clear from the terms of the MOU that it documents an informal interim arrangement for land to be added to the conservation estate if, but only if, all the necessary approvals could be obtained. His Honour said: ‘what emerges from the MOU is nothing more than a holding arrangement pending the obtaining of all required approvals to add the land to the conservation estate at some indeterminate future time in circumstances where those required approvals, both from within and outside the government, might or might not be obtained.’
For these reasons, the Court found that the area was not covered by permission under which whole or part of the land were to be used for public purposes or for a particular purpose.
Section 457B(5)(B) - The resumption issue
Subsections 47B(5)(b)(ii) and (iii) are concerned with the intention of the Crown at two times – first, when all interests last existing in relation to the areas before the test time were acquired, resumed or revoked by, or surrendered to, the Crown and, second, when the application was made.
Regarding the resumption issue, the State submitted that interests which exist before the test time (28 October 2004) and continue to exist after the test time, such as native title rights and interests, are irrelevant. Such interests, they argued, are not interests ‘last existing before the test time’. What is relevant according to the correct construction of the resumption provision, the State submitted, is that the interests last existing before the test time were the two pastoral leases.
The applicant contended that s 47B(5)(b) requires all interests in relation to the area to have been acquired, resumed or revoked by, or surrendered to the Crown. They contend that it is irrelevant whether or not those interests continue to exist after the test time. The Court preferred the State’s construction, indicating that the wording of the provision suggests an interest that has ceased to exist before the test time.
With regard to ascertaining the Crown’s intention, the Court identified extensive governmental material that records the history of the two leases from the time of their commencement. The Executive Director of CALM offered to purchase both pastoral leases ‘for conservation purposes’. Funding for this was made available through the National Reserve System program. On 13 June 2001, the Department of Minerals and Energy provided CALM with advice about the ‘significant potential’ for mineral exploration on the Lorna Glen pastoral lease and the need to consider CALM’s ongoing management of the area. On 20 November 2002, the Western Australian Cabinet endorsed a new conservation reserve system for the State that directs relevant agencies to give priority attention to converting already purchased pastoral leases into formal conservation reserves.
On 28 February 2003 the Shire of Wiluna advised CALM that it opposed the reservation, to which CALM responded saying that both leases were purchased for conservation purposes. This correspondence also noted that there is no requirement for the consent of the local government authority before reservations can proceed under the Land Act or CALM Act. On 23 May 2003 the Department of Mineral Resources wrote to CALM stating that it considers that the conservation reservation is not an appropriate tenure for areas of moderate to high mineral or petroleum potential (which included Earaheedy and Lorna Glen), in that restrictions on access act as a disincentive to industry investment. They recommended the prospective portions of properties which they partially support (which included Earaheedy and Lorna Glen) be set aside as an appropriate tenure that would allow for mineral and petroleum resource access.
On 9 July 2003, CALM wrote to the Wiluna claimants regarding the mechanism that would need to be applied to protect native title rights and interests, suggesting an Indigenous land use agreement enabling the creation of reserves. It also stated that it may be possible in the future to transfer title to the traditional owners under an amended CALM Act. The Native Title Representative Bodies and native title claimants opposed the reservation until such time as the CALM Act was amended to recognise the rights and interest of traditional owners. In summary, the two main issues requiring resolution before the leases could be reserved were mining access and native title.
The Court indicated that the persuasive burden of satisfying s 47B(5)(b) lies upon the State because evidence of the Crown’s bona fide intention, save for public documents, is effectively in the control of the Crown. The State submitted that at all material times the Crown intended to use Earaheedy and Lorna Glen for the purposes of conservation and recreation, both of which are public purposes. Subsections 47B(5)(b)(ii) and (iii) are concerned with the intention of the Crown. The State submitted that it is immaterial to the consideration of the Crown’s intention that the pastoral leases had not yet been formally reserved as conservation parks, but that this was the intention. The Court took the view that intention is to be determined objectively on the whole of the evidence, as the establishment of a conservation reserve evidently requires a coordinated approach across government agencies. Furthermore, the Minister for Lands is unlikely to act unilaterally in such a matter.
The Court did not accept that the Crown’s intention could be determined solely based on the Cabinet’s policy regarding the conservation estate at the time it purchased the two leases. This was because, firstly, these policies are expressed at a high level of generality and the focus of s 47B(5) is the specific area the subject of the native title application. Further, as noted above, the reservation required a whole of government position. Secondly, his Honour noted that the intention is to be considered at two relevant times and the intention may have altered since the land was purchased. For these reasons the Court was not convinced that the Cabinet’s policy determined the future use of the land for conservation and recreation purposes.
The Court outlined some steps for consideration of ‘bona fide intention’:
It is to be determined on the whole of the evidence.
It must be more than a generalised and vague desire or wish.
A specific desire or wish may not be enough if it is impossible or impractical to fulfill and the Crown knew or ought to have knowledge of that impossibility or impracticality.
The existence of a desire or wish to use the land for alternative and potentially conflicting causes.
The firmness or permanence of the state of mind attributed to the Crown, e.g., is the future use of land in state of flux or indecision.
The Court first considered the Crown’s intention as at 28 October 2004 pursuant to s 47B(5)(iii), because this discarded with the need for extensive consideration of s 47B(5)(ii).
The Court observed that CALM’s management activities on the land were not determinative as they were no more than that of any responsible land owner and were equally not inconsistent with any other future use of the land (e.g. mining). Even the interim holding tenure under the MOU was subject to not interfering with mining legislation applicable to the area. Consequently, Justice Jagot stated that CALM’s position would be more appropriately described as a mere desire or wish.
The reality was that CALM needed the support of other government departments, including the Department of Mineral Resources, to enable the reservation of the land for conservation purposes. This is evidenced by its consultations with affected government agencies. The problem for the State is that it had reached an impasse where CALM desired the whole area for conservation purposes and the Department of Mineral Resources opposed any tenure that would impede mining/extraction purposes.
While some public purposes may be consistent with native title rights and interests, the native title holders in this case opposed the reservation of Earaheedy and Lorna Glen for conservation purposes. CALM had to contend with the future use of the land with not only the rest of government, but also native title holders. Justice Jagot said that this too indicates that CALM’s position as at 28 October 2004 was best described as a desire or wish.
His Honour briefly considered the intention of the Crown when the pastoral leases were acquired (17 March 1999 for the Earaheedy pastoral lease and 1 August 2000 for the Lorna Glen pastoral lease) pursuant to s 47B(5)(b)(ii). His Honour said the fact that CALM’s intention was always inherently hedged by the significant uncertainties of future positions of other government agencies and native title holders weighed against the possibility of finding a bona fide intention to use the land for public purposes. His Honour further noted that the dual requirements of s 47B(5)(b) are an important safeguard for native title claimants against instances where the intention of one arm or agency of government does not reflect the government as a whole or where genuine intentions are later confounded by practical and political realities.
His Honour determined that as at 28 October 204, on the evidence, it could not be said that the Crown had a bona fide intention of using the area for the public purposes of conservation and recreation. Section 47B(5)(b)(iii) is therefore not satisfied and, as a result, s 47B(2) applies such that extinguishment of native title rights and interests through the grant of the Earaheedy and Lorna Glen pastoral leases can be disregarded. The Court held that the native title determination to which the parties agree the applicant is entitled must reflect the terms of s 47B(2) and directions will be made accordingly.