Dates v Karuah Local Aboriginal Land Council & Ors

Aboriginal Land Rights Act 1993 s 36, 40, 40AA, 40D Acts Interpretation Act 1901 (Cth) s 8 Environmental Planning and Assessment Act 1979 Pt 3A Interpretation Act 1987 s 30 LEGISLATION CITED: Interpretation Act 1897 s 8 Native Title Act 1993 (Cth) s 11, 13, 24OA, 61, 228, 237A, 238 Native Title (New South Wales) Act 1994 s 8 Racial Discrimination Act 1975 (Cth) Western Lands Act 1901

Dates v Roads and Traffic Authority of NSW [2009] NSWLEC 82 Esber v Commonwealth (1992) 174 CLR 431 Henderson v Henderson (1843) 3 Hare CASES CITED: Mabo v Queensland (No 2) (1992) 175 CLR 1 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 685 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457

TEXTS CITED: D C Pierce and R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press)

DATES OF HEARING: 14 December 2009 15 December 2009

APPLICANT Mr A Oshlack (agent)

FIRST RESPONDENT Mr D Rayment SOLICITOR Bilbie Dan LEGAL REPRESENTATIVES: SECOND RESPONDENT Ms S Pritchard SOLICITOR Chalk & Fitzgerald THIRD RESPONDENT Mr S Lloyd SC with Ms G Wright SOLICITOR Crown Solicitors Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40771 of 2009 Dates v Karuah Local Aboriginal Land Council & Ors

JUDGMENT 1 Her Honour: The Applicant, represented by his agent, Mr Oshlack, seeks various declarations and orders concerning two lots of land at Karuah (Lot 206 DP729578 and Lot 217 DP48786) which are owned by the First Respondent. The First Respondent, Karuah Local Aboriginal Land Council (Karuah LALC), wishes to sell the lots to the Third Respondent, the Roads and Traffic Authority of NSW, for use in a road project. It is able to do so provided certain requirements under s 40D(1) of the Aboriginal Land Rights Act 1983 (the ALR Act) are met. The Second Respondent, the New South Wales Aboriginal Land Council, must approve the sale of the two lots under s 40D(1)(b) of the ALR Act. I am informed that the Second Respondent is yet to approve the sale. 2 In his amended summons the Applicant seeks the following relief: 1. A declaration that the First and Second Respondent pursuant to section 40(1) of The Aboriginal Land Rights Act 1987 ("ALRA") are restrained from disposing of land described as Lot 206 DP 729758 and Lot 217 DP 48786 ("The Land") to the Third Respondent for the purposes of the construction of the Bulahdelah Bypass by the restriction in the provision of s40AA(1) of the ALRA.

2. Further a declaration that pursuant to s40(2) of the ALRA the sale of the land by the First and Second Respondent to the Third Respondent for the construction of the Bulahdelah Bypass would be void and of no effect because of the provision of s40AA.

3. An order restraining the Third Respondent it's employees, contractors, sub contractors, servants, consultants to enter the land for the purposes of undertaking any activity or work that may impact on the environment including but not limited to: ground disturbance, vegetation clearance, removal of plants, tree marking, surveying and damage, movement or destruction to any item of Aboriginal heritage, in accordance or which seeks reliance upon the conditions of approval for the construction of the Bulahdelah Bypass MP 05_0044 issued by the Minister for Planning to the First Respondent on the 9th of July, 2007.

3A. An order restraining the First and Second Respondent from selling or otherwise disposing of the land to the Third Respondent for the purpose of the construction and ancillary work for the Bulahdelah Bypass 3 The Applicant's agent advised at the end of the hearing that the order sought in relation to the Second Respondent is different to that in the amended summons, to the effect that the Applicant now seeks an order that the Second Respondent not approve the sale of the two lots. No further amended summons to that effect was filed.

4 Sections 40(1) and (2) of the ALR Act state: (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division. (2) Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void. 5 Section 40D(1) of the ALR Act provides: (1) A Local Aboriginal Land Council may, subject to the provisions of any other Act, sell, exchange, mortgage or otherwise dispose of land vested in it if: (a) at a meeting of the Council specifically called for the purpose (being a meeting at which a quorum was present) not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of, and (b) the New South Wales Aboriginal Land Council has approved of the proposed disposal, and (c) (Repealed) (d) in the case of the disposal of land transferred to an Aboriginal Land Council under section 36, both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed disposal. 6 Section 36 of the ALR Act provides for claims to be made by aboriginal land councils such as the First Respondent over claimable Crown land. Such claims are made to the Crown Lands Minister. If a claim is granted the land is transferred to the aboriginal land council. Sections 36(9) and (9A) of the ALR Act provide in relation to claims made for Crown land by aboriginal land councils: (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9A) Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer . 7 Section 40AA(1), the section referred to in the summons, provides: (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). 8 If the Court finds that s 40AA(1) does apply to the proposed sale then the Respondents accept that there has been no approved determination of native title within the meaning of the Native Title Act 1993 (Cth) (the NT Act (Cth)) and the sale cannot proceed. The Points of Claim refer to the Applicant's claim that he has native title rights and interests on the two lots as a traditional Worimi owner of the land. Whether the Applicant has native title rights and interests is not an issue that needs to be determined in light of the acceptance outlined in the previous sentence. Appropriately in light of this, the Applicant did not read affidavit evidence concerning his claim of native title rights and interests over the two lots. 9 The Points of Claim filed by the Applicant refer to the Applicant as an aboriginal traditional owner over the land the subject of the summons and assert that he is a member of the Karuah LALC. The Third Respondent initially challenged the standing of the Applicant to bring these proceedings but that challenge was not ultimately pressed. Preliminary issue - Anshun estoppel 10 A preliminary issue was raised by the Third Respondent as to whether the Applicant was able to proceed on its summons or whether it was estopped from continuing the proceedings. An affidavit of Christopher Woolard affirmed 4 December 2009 was read on this issue. His affidavit identifies other court proceedings which the Applicant has commenced in relation to the proposed sale of the land. One proceeding involving the same parties was before Biscoe J in this Court (matter no 40027/09). The summons (original and amended) and submissions of the parties in that matter were annexed to Mr Woolard's affidavit. In the amended summons in that matter relief sought by the Applicant included: 1. A declaration that the Second and Third Respondents will have breached the provisions of sections 40(1) and 40D(1)(a) & (b) and (2) of the Aboriginal Land Rights Act 1987 ("ALRA") in the disposal of land described as Lot 206 DP 729758 and Lot 217 DP 48786 ("The Land") for the purposes of the construction of the Bulahdelah Bypass. 2. In the alternative a declaration that by virtue of the provisions of s 40(1) & (2) and 40D(1)(a) & (b) of the ALRA the Third Respondent is constrained from disposing of the land and the Second Respondent approving the disposal of the land to the First Respondent for the construction of the Bulahdelah Bypass. 2A. Further a declaration that it is a jurisdictional fact that the land is culturally significant to Aboriginal People within the scope of s 40D(3) of the ALRA . 3. Further or in the alternative a declaration that by virtue of the failure of the First Respondent to comply with section 42 of the ALRA, the acquisition of the land for the purposes of constructing a bypass at Bulahdelah would be otherwise invalid and/or void and of no effect.

Third Respondent's submissions 11 The Third Respondent argues that the Applicant is estopped from pursuing these proceedings, relying on the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun). Anshun estoppel rests on the principle that parties to litigation should bring forward their whole case so that the court will not permit a party to reserve a claim and make it later. The Third Respondent referred to the application of Anshun in Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457. The issues now raised ought to have been brought forward as part of the earlier proceedings, matter no 40027/09, brought by the Applicant in this Court.

12 The earlier proceedings (matter no 40027/09) giving rise to the Anshun estoppel were commenced by way of summons on 16 January 2009. The summons challenged the proposed purchase of land from the First Respondent by the Third Respondent. A preliminary issue was raised as to the construction of s 40D(1)(a) of the ALR Act in prayer 2A. Biscoe J held, in Dates v Roads and Traffic Authority of NSW [2009] NSWLEC 82, that a question of whether or not land was of cultural significance to Aboriginal people of the local area in the context of s 40D was not a jurisdictional fact and was a matter for the local aboriginal land council to determine subject to the procedural requirements of s 40D. Biscoe J dismissed prayer 2A of the Applicant's summons seeking a declaration that it was a jurisdictional fact that the land was culturally significant. His Honour also dismissed prayer 3. The rest of the summons was discontinued by the Applicant on 9 June 2009. The Third Respondent was not restrained from carrying out work or activity in reliance on the approval issued by the Minister for Planning under Pt 3A of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for the road project.

13 The relief sought in the present proceedings and the proceedings before Biscoe J is essentially identical. In both proceedings the provisions of Div 4 of Pt 2 of the ALR Act are relied upon. A declaration that the sale of the land to the Third Respondent is void and a related injunction were sought in the earlier summons. The present proceedings are against the same Respondents. Although a different provision of the ALR Act is raised (s 40AA), it would be expected that a litigant would raise a claim based on s 40AA in a proceeding challenging the authority to sell the land under s 40D, as sought in matter no 40027/09, in which the land and the facts giving rise to the claims for relief are identical. This would have minimised costs and delay to both parties and the demands on court time.

Applicant's submissions 14 The Applicant argues that the decision to sell the land by the process referred to in s 40D(1)(a) of the ALR Act was made on 15 September 2009 when 12 members of the First Respondent adopted a motion that the land was not culturally significant and should be disposed of. The motion was passed again by 14 members on 9 November 2009 after advice from the Second Respondent that the motion of 15 September 2009 was flawed. (I note these meetings are referred to in the affidavit of David Tink, referred to later at par 23). These meetings occurred after the finalisation of matter no 40027/09. As the present proceedings are based on this decision of the Second Respondent to approve the sale of the land by the First Respondent to the Third Respondent, the issue it seeks to raise now could not have been decided in the earlier proceedings before Biscoe J.

15 The Applicant also submits that the only issue determined by the Court in the earlier proceedings was that of jurisdictional fact in relation to s 40D(3). The current proceedings relate to the construction of a different provision of the ALR Act and are of wider scope than the issue finally determined by Biscoe J. Zavodnyik is distinguishable on its facts as it considered matters relevant to a commercial dispute which are entirely different from the matters the Applicant is raising. Finding on estoppel 16 In Anshun the majority in the High Court (Gibbs CJ, Mason and Aickin JJ) held at 598: The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) . The Vice-Chancellor expressed the principle in these terms:

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

The existence of the principle has been affirmed by the Judicial Committee on four occasions (Hoysted v. Federal Commissioner of Taxation (1925) 37 CLR 290, at p 303; (1926) AC 155, at p 170; Kok Hoong v. Leong Cheong Kweng Mines Ltd. (1964) AC 993, at pp 1010-1011 ; Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. (1975) AC 581 ; Brisbane City Council v. Attorney-General (Q.) (1979) AC 411, at p 425 ). See also Carl Zeiss (1967) 1 AC, at pp 915-916, 966 ). In two of these cases the principle was applied so as to shut out litigation of an issue which could and should have been litigated in the earlier proceedings. At 602 their Honours held: Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. 17 That test of exercising reasonable diligence to bring forward matters which properly belong to litigation has been applied in a number of other cases, including Zavodnyik, referred to by the Third Respondent. In Zavodynik, Handley JA (Mason P and Latham J concurring) in that matter held at [29]: The question, posed by Henderson v Henderson, is the characterisation of "the subject matter" of the litigation in the Tribunals. If a claim in restitution "properly belonged to the subject matter" of that litigation the District Court proceedings will be barred either by a res judicata or Anshun estoppel. They will be barred because those pleas cover matters which were not litigated, but should have been, whether the omission was due to negligence, inadvertence, accident, or otherwise. The fact that the restitution claim was not litigated on the merits in the Tribunal is not decisive. The reasonableness test in Anshun is considered by Handley JA at [38]-[39] in the context of cross-claims. His Honour held that on the facts of that case there was substantial overlap in the facts underlying both the earlier claim and the current proceedings, suggesting they should be litigated at the one time to avoid cost and delay. He therefore held there was an Anshun estoppel. 18 As submitted by the Third Respondent, the relief sought in these proceedings is virtually identical to matter no 40027/09 which involved the same parties and related to stopping the sale of the two lots under s 40(1) and s 40D(1) of the ALR Act. The subject matter of the earlier litigation was also the validity of any decision of the First Respondent (named as the Second Respondent in those proceedings) to dispose of (sell) the same two lots to the Third Respondent. As can be seen from the earlier summons set out in par 10, declarations were sought that breaches of the s 40 and s 40D of the ALR Act would occur if the sale proceeded and a declaration constraining the disposal was sought. The relief sought now includes declarations restraining the First Respondent disposing of the land and orders that any sale would be void for breaches of s 40AA of the ALR Act. 19 The substantive matter raised in the Applicant's summons in these proceedings is the operation of s40AA of the ALR Act which matter was not raised in the earlier proceedings. That matter is raised in the context of stopping a sale of land under s 40D(1) of the ALR Act. That matter could have been raised in the proceedings 40027/09 which also sought to stop the disposal of land by the First Respondent to the Third Respondent. The legal issues raised by s 40AA do not depend on whether the First Respondent had the meeting required under s 40D(1)(a) before it can sell the land, as it has done in September and November 2009. The Applicant's agent's submission that the meeting required under s 40D(1)(a) had not occurred at the time of the proceedings before Biscoe J is not material. 20 The operation of s 40AA, raised in the present proceedings, properly belonged to the subject matter of that earlier litigation, to adopt the principle in Henderson v Henderson (1843) 3 Hare as applied by the Court in Anshun and as applied in subsequent cases such as Zavodynik. It is reasonable to expect that this issue should have been raised in the earlier proceedings (matter no 40027/09). To do so would have saved the parties additional cost and delay. It is not material that there was no determination of all the matters raised in the earlier summons. The Applicant chose to discontinue the balance of the proceedings after the finding on the preliminary issue by Biscoe J. I consider an Anshun estoppel arises in these proceedings. This means the Applicant is prevented from pursuing these proceedings. 21 As I have heard argument on the substantive issue raised concerning s 40AA and am able to consider that issue I will nevertheless do so as the parties requested that I do so. Substantive issue - application of s 40AA of the ALR Act 22 The relevant facts for the purposes of the substantive issue of statutory construction of s 40AA of the ALR Act are set out in the Second Respondent's written submissions at [7]-[17] as follows: Lot 206 7. On 31 October 1984, Karuah LALC lodged a claim pursuant to s 36(3) of the ALRA in relation to Lot 206 DP729758. The claim was given Aboriginal land claim number ALC 870. 8. On 9 May 1989, the Minister for Natural Resources (being the Minister administering the Crown Lands Act 1989) granted the claim pursuant to s 36(5)(a) of the ALRA. 9. On 2 May 1990, the State of New South Wales transferred an estate in fee simple in Lot 206 to the first respondent, Karuah LALC. 10. The original transfer records the following notations: (a) the conditions in Memorandum Y757000; and (b) restrictions on dealings - see section 40 of the Aboriginal Land Rights Act 1983. 11. As at 2 December 2009, the folio recording for Lot 206 provided that the title of Karuah LALC was subject to two notifications: (a) Y9864658: subject to conditions in Memorandum Y757000. Restrictions on dealings - see section 40 of the ALRA; and (b) AE485774: Caveat by Worimi Dates. 12. The folio recoding for Lot 206 makes no reference to s 40AA of the ALRA Lot 217 13. On 23 April 1993, NSWALC lodged a claim pursuant to s 36(2) of the ALRA in relation to Lot 217 DP 48786. The claim was given the Aboriginal land claim number ALC 4679. 14. On 13 June 1997, the Minister for Land and Water Conservation (being the Minister administering the Crown Lands Act 1989) granted the claim pursuant to s 36(5)(a) of the ALRA. 15. On or about 12 May 1999, the State of New South Wales transferred an estate in fee simple in Lot 217 to the second respondent, NSWALC. 16. On 12 April 2002, NSWALC transferred an estate in fee simple in Lot 217 to Karuah LALC. 17. As at 2 December 2009, the folio recording for Lot 217 provided that the title of Karuah LALC was subject to three notifications: (a) subject to conditions in Memorandum 757000. Restriction on dealings - see section 40 of the ALRA; (b) an easement for transmission lines; (c) AE4857858: Caveat by Worimi Dates. The notification in relation to Memorandum Y757000 provided as follows: "This is not affected by section 40AA".

23 These agreed facts are drawn from the affidavit (and annexed documents) of Anthony Millott, officer of the Second Respondent, affirmed 4 December 2009. Two paragraphs of the affidavit of David Tink, solicitor for the Third Respondent, affirmed 4 December 2009 were also read (referred to earlier at par 14) and concerned minutes of meetings of the First Respondent on 15 September 2009 and 9 November 2009 to pass resolutions relevant to s 40D(1)(a) of the ALR Act in relation to the land the subject of these proceedings. The Third Respondent read the affidavit of Christopher Woolard dated 4 December 2009 which overlaps in part with Mr Millott. 24 In addition to the history set out above, the Points of Claim also refer to a letter of 13 June 1997 (annexed to the affidavit of Mr Millott) from the Minister for Land and Water Conservation to the Second Respondent in relation to the claim over Lot 217. The letter stated the Minister had decided to grant Lot 217 to the Second Respondent. This letter further stated that s 40AA applied to restrict disposal of the land if any native title interest was proved. By a later letter dated 24 March 1998 (also annexed to Mr Millott's affidavit) the Director-General of the Department of Land and Water Conservation wrote to the Second Respondent stating that s 40AA of the ALR Act did not in fact apply to Crown land claimed under the ALR Act before 28 November 1994 (the date of the introduction of s 40AA in to the ALR Act). I have identified this correspondence as the parties referred to it in submissions but it provides no assistance in the resolution of whether s 40AA applies in this matter. ALR Act amendments 25 It is useful to set out earlier versions of some parts of the ALR Act in order to understand the arguments made. As originally drafted and as at 31 October 1984 (the date that the claim was made for Lot 206) the ALR Act s 36(9) provided: Any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple. 26 As at 23 April 1993, the date the claim was made for Lot 217, s 36(9A) had been inserted and s 36(9) amended to provide as follows: (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple.

(9A) Where the transfer of lands to an Aboriginal land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act.

These amendments were inserted on 2 May 1986. 27 Section 36 was amended again by the introduction of the Native Title (NSW) Act 1994 on 28 November 1994. As amended s 36 relevantly provided: (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9A) Where the transfer of lands to an Aboriginal land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. 28 Section 40AA was also inserted on 28 November 1994 to provide as follows: Disposal of land subject to native title restricted

40AA The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth native Title Act).

Interpretation Act 29 Section 30(1)(c) of the Interpretation Act 1987, provides as follows:

(1) The amendment or repeal of an Act or statutory rule does not: … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or …

30 Prior to the introduction of the current Interpretation Act, s 8 of the Interpretation Act 1879 relevantly provided as follows Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not: … (b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed, or

Applicant's submissions 31 Section 40AA operates on all dealings with land made after the section came into force in November 1994 regardless of when Lot 206 and Lot 217 were claimed by or granted to the First Respondent. Retrospectivity is not relevant. Nothing on the face of s 40AA reflects the interpretation of the Respondents that the section not apply to the sale of any land made after the section came into force but where the land claim was made before the amendment. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 685 (Winbar No 3) must be distinguished as it deals with different facts and concerns the making of a grant of land to an aboriginal land council rather than the disposal of land by an aboriginal land council. 32 In reply, the Applicant submitted that the Respondents' interpretation of s 40AA is not consistent with the NT Act (Cth). The sale of the land will extinguish native title on the land and that is inconsistent with the NT Act (Cth). Native title cannot be extinguished unless in accordance with the NT Act (Cth), per s 11 of that Act. Section 237A of the NT Act (Cth) defines "extinguishment" and will occur if the sale of the two lots the subject of these proceedings takes place. The non-extinguishment principle in s 22K of the NT Act (Cth) applies to sales under the ALR Act. This is detailed in s 238 of the NT Act (Cth), headed "Non-extinguishment principle". The act to dispose of land under the ALR Act is not a valid future act and no application has been made pursuant to s 61 of the NT Act (Cth) to obtain a determination that native title is extinguished. There was a breach of the Racial Discrimination Act 1975 (Cth) (the RD Act) when Lot 206 was transferred to the First Respondent. Third Respondent's submissions 33 Section 40AA does not apply to either Lot 206 or Lot 217. Aboriginal land claims are determined under s 36 of the ALR Act in relation to claimable Crown lands. Section 36(5) requires the Crown Lands Minister who receives a claim for claimable Crown land, to grant the claim by transferring the land to the claimant land council, in whole or part. The test of whether land is "claimable Crown lands" is required to be met at the time at which the claim is made.

34 As first enacted in 1983, s 36 of the ALR Act provided for the transfer of land as a transfer in fee simple. Section 36 was amended with the insertion of s 36(9A) in 1986 concerning land claims in the Western District. Sections 36(9) and s 36(9A) were amended and s 40AA inserted into the ALR Act in 1994 (the 1994 amendments) by the Native Title (New South Wales) Act 1994 (NT Act (NSW)) which commenced operation on 28 November 1994. These amendments followed the recognition of native title by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the introduction of the NT Act (Cth). The 1994 amendments to the ALR Act were made after the claims for Lot 206 and Lot 217 were lodged by the First Respondent. Section 40AA does not apply to either lot as both were claimed before the section came into force so that the land transferred in satisfaction of those claims was not "vested…subject to native title rights and interests under s 36(9) or (9A)" within the meaning of s 40AA. Winbar No 3 is authority for this proposition.

35 Winbar No 3 considered s 36(9) and (9A) in the ALR Act prior to the 1994 amendments. Hope JA (Samuels and Clarke JJ concurring) held that s 36(9A), which was inserted in May 1986, did not apply to land claims lodged before the insertion of that provision. His Honour considered this in the context of s 8 of the Interpretation Act 1897 but stated at 691 that no different result would have arisen if the 1987 Act had been applied. The High Court referred to Winbar No 3 with approval in Esber v Commonwealth (1992) 174 CLR 430 at 440 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.

36 For Lot 206 the claim was lodged in 1984 and granted in 1989 to the First Respondent, both before the 1994 amendments to the ALR Act were made. The claim for Lot 217 was lodged in April 1993 by the Second Respondents before the 1994 amendments. The Second Respondent obtained a right to have the land transferred to it in fee simple on the making of these claims in 1984 and 1993, subject to the Minister (or Court on an appeal) being satisfied that the land was claimable Crown land. The principal determined in Winbar No 3 applies in relation to both lots. The 1994 amendments are not expressed to operate retrospectively. The statutory right vested in the Second Respondent upon lodgement of the claim under s 36 was preserved notwithstanding later amendment of the legislation. That statutory right was then implemented upon the grant of the land from the Crown to the Second Respondent. 37 It cannot be said that when Lot 206 and Lot 217 were vested in a land council, they were "vested in it subject to native title rights and interests under s 36(9) or (9A)" for the purposes of s 40AA. Section 40AA is not therefore engaged.

Native Title Act (Cth) 38 It is unnecessary to consider the NT Act (Cth) to resolve the issues in the case. At the time the land claim for Lot 206 was made and granted, s 36 provided for all grants of land (putting aside lands subject to the Western Lands Act 1901 which is not relevant to the land the subject of these proceedings) to be for "an estate in fee simple". There was no provision making the grant subject to any native title rights and interests existing in relation to the land before the transfer. Indeed, native title was not recognised as being an interest in land by the common law at that time as this was before Mabo (No 2) was decided. 39 Having taken place before the enactment of the NT Act (Cth) on 1 January 1994, the question of the validity and significance of the transfer of Lot 217 to the Second Respondent arises. Native title can be extinguished or affected only in accordance with the NT Act (Cth) (s 11(2) and s 24OA). The NT Act (Cth) distinguishes between past acts and future acts and sets up a regime for the validation of "past acts" which affected native title (in the sense of extinguishing or being inconsistent with native title to some degree). The past act validation regime mainly deals with invalid acts before the commencement of the NT Act (Cth) on 1 January 1994. 40 The term "past act" is defined in s 228 of the NT Act (Cth). By s 228(3) it includes an act that takes place on or after 1 January 1994 if it "takes place in exercise of a legal enforceable right created by … any … act done before 1 January 1994 …". To the extent that the grant of Lot 217 to the land council affected native title, it was a "past act" under s 228(3). This is because the Minister's determination in 1997 that the land was "claimable Crown land" and the subsequent grant of the land in 1999 took place in exercise of the legally enforceable right created (in the land council) by the lodgement of the land claim in April 1993. In the Third Respondent's submission, there can be no doubt that the lodgement of the land claim created a right to the transfer of the land (Hope JA confirms as much in Winbar No 3) for the purposes of s 228(3). 41 Section 19 of the NT Act (Cth) provides for validation of "past acts" by State legislation. Similarly the relevant NSW legislation, the NT Act (NSW), provides in s 8 that past acts attributable to the State are valid. The non-extinguishment principle nevertheless applies to the act (s 13 of the NT Act (Cth)). That principle is defined in s 238 of the NT Act (Cth) to mean that native title is not extinguished. 42 Thus, to the extent that the grant of Lot 217 in satisfaction of the land claim was prohibited by the NT Act (Cth), it was a past act which was validated by s 8 of the NT Act (NSW) as referred to above. The grant of the estate in fee simple to the Second Respondent was valid but gives rise to compensation consequences and the non-extinguishment principle applies. In the Third Respondent's submission, it is entirely irrelevant to the issue in these proceedings whether or not native title rights and interests subsist in relation to the area comprising Lot 217. Even assuming that they do exist, they do not have the effect contended for by the Applicant. They do not inhibit the First Respondent's ability to dispose of the land in accordance with Div 4 of Pt 2 of the ALR Act. 43 No late submission concerning the application of the RD Act can be raised by the Applicant as there has been no notice under s 109 of the Constitution of Australia Act 1990 (the Commonwealth Constitution). Second Respondent's submissions 44 The Second Respondent does not own the two lots and cannot dispose of them. It transferred Lot 217 to the First Respondent in 2002. Disposal is a matter entirely for the First Respondent. It does have a role to approve the sale under s 40D(1)(b) of the ALR Act. The Second Respondent adopted the submissions of the Third Respondent in relation to the operation of s 40AA and the application of Winbar No 3. Its counsel expanded briefly on these to the effect that Winbar No 3 was referred to in Esber, which considered s 8 of the Acts Interpretation Act (Cth). The majority in Esber concluded that the existing right at issue was protected by s 8(c) of the Acts Interpretation Act, in similar terms to s 30 of the NSW Interpretation Act. 45 It is a well settled principle of statutory interpretation that where Parliament amends a statute after judicial interpretation of a particular section then Parliament is assumed to be aware of that interpretation and to accept it, see D C Pierce and R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press) at 3.39 and [18]-[19] of Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76. Sections 36(9) and (9A) were amended and s 40AA was introduced after Winbar No 3 and the legislature is assumed to accept that interpretation when it passed s 40AA. 46 It is unnecessary to resolve whether native title extinguished or exists consistent with the NT Act (Cth). Whether the grant of the land extinguishes native title is not raised. The past acts regime is not engaged because there is no breach of the RD Act. 47 The First Respondent adopted the submission of the Second Respondent. Finding 48 The provisions of the ALR Act at various relevant times are set out above. While the provisions vary as between the dates of the claims under the ALR Act for Lot 206 and Lot 217, there is no material difference in outcome. That is because the principle that whether land is "claimable Crown land" is determined at the time at which the claim is made, and that is the time at which the interest in land able to be claimed is defined. 49 This principle was determined in Winbar No 3 and arises from the operation of the Interpretation Act (whether s 8 of the 1897 Act or s 30 of the 1987 Act is immaterial as the relevant provisions are the same). At the time of Winbar No 3, s 36(9) and (9A) of the ALR Act were as set out above at par 26. Section 40AA was not in the ALR Act. In Winbar No 3 the issue to be resolved was whether claimable Crown land should be conveyed to the applicant aboriginal land council as a lease in perpetuity or as an estate in fee simple. This turned on which version of the section applied to the grant of land given that the claim had been made in April 1984 and the claim was granted in 1987. The amendment to the ALR Act in May 1986 provided for a transfer of a lease in certain circumstances where as previously the ALR Act provided for a transfer of the estate in fee simple under s 36(9). 50 Hope JA at 691 held: The resolution of the question whether this submission is correct requires a consideration of the nature of the right which the Act confers, and of the effect of a repeal or amendment of a statute upon such a right. I have referred in these reasons to the Interpretation Act 1897. No different result arises because of the repeal and replacement of this Act by the Interpretation Act 1987.

… the definition of "claimable Crown lands" in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made. It does not require the conditions to be satisfied at some later time, as, for example, when the Minister investigates the matter or when the court, on appeal, investigates it. What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim. 51 Hope JA then held at 693 that the right conferred by the ALR Act was "not a mere right of existing in the members of a relevant class of community 'to take advantage of an enactment'". Hope JA characterised the rights in the following manner, at 694: … the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. (emphasis added) 52 At 696, Hope JA stated: In the circumstances I have concluded that the Land Council had a right in respect of the land at the time its appeal was lodged with the Land and Environment Court and that that proceeding could be continued in that Court as if the law had remained the same as it was at the time when the appeal was instituted. The Land Council's right was a right to have the land transferred to it in fee simple. This statutory right was a right in respect of the land notwithstanding that it was conditional on the court affirming and implementing it. 53 Winbar No 3 was quoted favourably by the majority judgment of Mason CJ, Deane, Toohey and Gaudron JJ in Esber at 440. Esber was considering payments made to a former defence force member under a 1971 statute. Between applying to the Administrative Appeals Tribunal and the hearing of an application to redeem payments in a lump sum, the 1971 statute was repealed and replaced by a new 1988 statute which included a provision that payments not be redeemable. The dispute turned on the interpretation of a saving provision in the 1988 statute for proceedings commenced under the 1971 statute. This was read by the majority in light of s 8 of the Acts Interpretation Act. The majority held that the applicant for a lump sum payment had accrued rights pursuant to the 1971 statute which were not revoked by its repeal. 54 As identified in par 28, s 36(9) and (9A) of the ALR Act were amended in 1994 and s 40AA was also inserted into the ALR Act. The principle identified by Hope J in Winbar No 3, that a statutory right will be preserved notwithstanding the amendment of the statute provided that the statutory machinery for obtaining that decision has been set in train before the amendment, is based on the application of common law principles and is set out in s 30(1)(c) of the Interpretation Act. This principal applies to the 1994 amendments and is relevant to the statutory construction issues raised by whether s 40AA applies in relation to the two lots. Based on s 30(1)(c) of the Interpretation Act and the principles in Winbar No 3, s 40AA does not apply as the sale of the two lots is not land vested in the First Respondent subject to native title rights and interests under s 36(9) or (9A). Lot 206 was vested in the First Respondent in fee simple pursuant to s 36(9) as at 31 October 1984 and Lot 217 vested in fee simple pursuant to s 36(9) as at 23 April 1993. 55 As submitted by the Second Respondent the legislature can be assumed to be aware of Winbar No 3 at the time that s 40AA was inserted into the ALR Act. It was not framed as having any retrospective operation and accordingly there is no basis for construing it to apply in that way. 56 As identified in the summary of agreed facts set out at par 22 the dates of the claim and granting of the claim vary between Lot 206 and Lot 217. For Lot 206 the date of claim and the grant of the claim both occurred before the introduction of the 1994 amendments to s 36(9) and (9A) and the introduction of s 40AA. The claim for Lot 217 in April 1993 was before the 1994 amendments. The grant occurred in 1997 following these amendments in 1994. There is no relevant difference between the ALR Act provisions applying to Lot 206 and those in Winbar No 3 because s 36(9A) which applied in Winbar No 3 dealt only with the transfer of land under the Western Lands Act. The different provisions of the ALR Act applying to Lot 217 do not suggest the principle of statutory construction identified in Winbar No 3 ought not apply, contrary to the Applicant's submissions. 57 I agree with the Third Respondent's submission that the Applicant's construction should be rejected. If the construction of s 40AA urged by the Applicant was correct (namely, that the land cannot be dealt with if native title rights and interests in relation to the land have not been extinguished, absent an approved native title determination), the words "under section 36(9) or (9A)" in s 40AA would be obsolete. It is not the case that any native title subsisting in relation to the land attaches to the land, or is held in relation to the land, "under section 36(9) or (9A)". Sections 36(9) and (9A) refer to the quality of the title vested in the land council under the ALR Act. The two lots were granted to the First Respondent/Second Respondent in fee simple. 58 Section 40AA of the ALR Act does not apply to the disposal of the two lots by the First Respondent to the Third Respondent. Native Title Act (Cth) 59 As submitted by the Second and Third Respondents it is unnecessary to determine whether there is any breach of the NT Act (Cth) in the context of this case. Nor do I need to resolve whether native title rights are extinguished or continue to exist under the NT Act (Cth). 60 There was reference to the NT Act (Cth) in the Applicant's submissions and oral submissions in reply as summarised at par 32. The Second and Third Respondents addressed the NT Act (Cth) in their submissions although also submitting it was not relevant. I hesitate to spend any time on a matter that does not need to be determined by me. I have also been asked to deliver a judgment quickly and the matter was listed for early hearing before the end of the law term to facilitate an early resolution. I cannot do better than adopt the written submissions of the Second and Third Respondents in relation to the (non) application of the NT Act (Cth) to the two lots in issue, about which they essentially agreed. The Third Respondent's submissions are set above in par 38 (in relation to Lot 206) and par 39-42 (in relation to Lot 217). 61 In addition to par 38 of the Third Respondent's submissions, the Second respondent submitted in relation to Lot 206 that claims lodged under the ALR Act prior to commencement of the NT Act (Cth) on 1 January 1994 were not prohibited by the RD Act, and were not invalid. There was no relevant "past act" within the NT Act (Cth), and the validation provisions in the NT Act (Cth) do not apply because there was no act requiring validation. Land vested in an aboriginal land council can be dealt with in accordance with the terms of the ALR Act, including being sold. 62 In addition to par 39-42 of the Third Respondent's submissions, the Second Respondent submitted in relation to Lot 217 that because claims lodged prior to 1 January 1994 were not prohibited by the RD Act, and were not invalid, on the basis of the principles in Winbar No 3, the determination of those claims and transfers of land were similarly not invalid. 63 Even if a claim lodged under the ALR Act prior to 1 January 1994 was prohibited by the RD Act, it was a "past act" which was validated by the NT Act (NSW). 64 Accordingly, any transfer of fee simple was valid, but the non-extinguishment principle applies, and gives rise to compensation consequences. 65 Thus, it is irrelevant whether or not native title rights and interests exist in relation to either Lot 206 or Lot 217. Even assuming they do exist they do not inhibit the ability of the First Respondent to dispose of the land in accordance with Div 4 of Pt 2 of the ALR Act.

Conclusion 66 The principle of Anshun estoppel applies to these proceedings. In any event, the Applicant has not established that the declarations and orders he seeks in this Class 4 application ought be granted. The Class 4 application is dismissed. Orders 67 The Court makes the following orders: 1. The Applicant's Class 4 application is dismissed. 2. Costs are reserved.

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