Erubam Le (Darnley Islanders) #1 v State of Queensland

Federal Court of Australia (Full Court)|2003-10-14|Before: Drummond J, Black CJ, Cooper JJ

Question 1 Whether, apart from the operation of s 47A of the Native Title Act 1993 (Cth), the construction or establishment of any of the valid public works referred to in the statement of agreed facts at paragraphs - (i) 10.1; (ii) 10.2, 10.3 or 10.4; (iii) 10.5 or 10.7; and (iv) 10.6 would have extinguished native title rights and interests otherwise existing in relation to the land or waters on which the public works were or are situated. Answer (a) Apart from the operation of s 47A, the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1 would, because of provisions of the Native Title Act 1993 (Cth), have extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated. (b) The construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 has not extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated. Question 2 Whether, if any of the acts referred to in Question 1 would, apart from the operation of s 47A, have extinguished native title, s 47A requires that such extinguishment be disregarded for the purposes of a determination of native title under the Native Title Act 1993 (Cth). Answer The acts referred to in paragraphs (i) and (ii) of Question 1 have, by reason of the provisions of the Native Title Act1993 (Cth), extinguished any native title rights and interests in the subject land and s 47A does not require that the extinguishment be disregarded for the purposes of a determination of native title under the Native Title Act1993 (Cth). 2. There be no order as to costs.

native title rights and interests - extinguishment GENERALLY 9 In Mabo v Queensland [No 2] (1992) 175 CLR 1 ("Mabo") it was recognised that native title might be extinguished. In that case, Brennan J (Mason CJ and McHugh J agreeing at 15) noted (at 67): "The power to reserve and dedicate land to a public purpose and the power to grant interests in land are conferred by statute on the Governor in Council of Queensland and an exercise of these powers is, subject to the Racial Discrimination Act, apt to extinguish native title." 10 In response to the decision in Mabo the Native Title Act was enacted by the Commonwealth Parliament. Some of the extinguishment provisions have been present in the Act since it came into operation. Section 10 of the Native Title Act provides that native title is recognised and protected in accordance with the Act and s 11 states that native title cannot be extinguished contrary to the Act. Various provisions of the Act provide for the extinguishment of native title depending on the nature of the act and the time at which the act occurred. 11 Ten years after its decision in Mabo, the High Court noted in Western Australia v Ward (2002) 191 ALR 1 ("WA v Ward')that until the Native Title Act was amended in 1998 the Act said little about what was involved in the notion of extinguishment of native title. Gleeson CJ and Gaudron, Gummow and Hayne JJ observed (at 19 [26]): "The term "extinguishment" is most often used to describe the consequences in law of acts attributed to the legislative or executive branches of government. In addition, it was asserted that in some cases the native title claimed in these matters had been extinguished by acts of the executive branch of government, done pursuant to legislative authority, that were acts which did not constitute a grant of rights to any third party but were said to be the assertion, by the executive, of rights in respect of the land, or the exercise, again by the executive, of powers over the land, inconsistent with the continued existence of some or all native title rights and interests. It is important to recognise, however, that despite the grant of rights to others, or the assertion or exercise of rights or powers by the executive, to some extent the native title might survive or there might be no inconsistency in the relevant sense at all." 12 Substantial amendments to the Act were made by the Native Title Amendment Act 1998 (Cth) ("the 1998 Amendments") to deal with, amongst other matters, extinguishment of native title. The amending legislation was introduced following the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 ("Wik"). Amongst the provisions of the amending Act was s 237A which provides: "The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect." This defines 'extinguish' for the purposes of the statute although it appears to be consistent with the common law as stated in Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 128. 13 The questions now before the Full Court require an analysis of provisions of the Native Title Act (including the 1998 Amendments) which provide for the extinguishment of native title and which also provide that extinguishment is to be disregarded in certain circumstances. 14 The High Court has held that extinguishment of native title occurs where the Crownhas acted within power in a manner inconsistent with native title. In Wik Brennan CJ noted (at 84-85): "Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title." [Footnotes omitted.] Propositions (ii) and (iii) may be regarded as aspects of the one proposition. 15 The passage quoted from the judgment of Brennan CJ in Wik was cited with approval by Gleeson CJ in Wilson v Anderson (2002) 190 ALR 313 ("Wilson v Anderson") at 315-316. See also WA v Ward at 35-36.

Interaction between commonwealth and state native title acts 16 We are concerned here with an interaction between Commonwealth and State legislation relating to native title. Relevantly, the Native Title Act of the Commonwealth provides that certain acts that are attributable to the Commonwealth are "validated" and that as "validated" they may affect the continued existence of native title. The relevant interaction with State and Territory legislation comes about through the operation of provisions in the Commonwealth legislation which provide that a State or Territory may make provisions to the same effect as the Commonwealth law in respect of acts attributable to that State or Territory. For example, s 22F of the Native Title Act picks up 'intermediate period acts' by providing: "If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid." 17 In enacting the State Act, the Parliament of Queensland has made provisions of this nature. The preamble to the State Act notes that the Commonwealth Government proposed legislation for a national scheme for the "recognition and protection of native title and for its coexistence with the existing land management systems" and that it is the intention of the Parliament that Queensland should participate in the national scheme. 18 Relevantly, the State Act provides for the extinguishment of native title by certain "validated" acts. Part 4 of the State Act applies to 'previous exclusive possession acts' defined in Division 2B of Part 2 of the Native Title Act. Section 21 of the State Act confirms that an act which is a 'previous exclusive possession act' under s 23B(7) of the Native Title Act will extinguish native title. Part 2 of the State Act contains provisions that mirror those contained in Division 2, 2A and 3 of Part 2 of the Native Title Act, which relate to 'past acts', 'intermediate period acts' and 'future acts'. These provisions have the effect that acts which, if attributable to the Commonwealth, would extinguish native title, also extinguish native title if attributable to the State of Queensland. 19 Since the public works that have given rise to the referred questions are all acts that are attributable to the State of Queensland, there is an interaction between the Native Title Act and the State Act. In the course of the analysis that follows, we have directed primary attention to the Commonwealth legislation, it having been adopted by the State Act in respect of acts attributable to the State of Queensland.

qUESTION 1 - WHETHER, APART FROM SECTION 47a, NATIVE TITLE WOULD BE EXTINGUISHED 20 We now turn to the first of the questions. In summary this asks, in relation to the "valid public works" constructed or established on Erub at various times between 1977 and 2002, whether, apart from the operation of s 47A of the Native Title Act, their construction or establishment would have extinguished native title rights and interests otherwise existing. 21 Section 47A is a complicated provision which provides in substance that any extinguishment of native title by various specified acts must be disregarded. The provision, which was introduced as part of the 1998 amendments, is lengthy and complicated. We set it out in full later in these reasons. 22 The extinguishment provisions upon which s 47A may operate are contained in four of the divisions of Part 2 of the Native Title Act, two of which have been present since the Act was first enacted. The various divisions operate differently according to the date or dates of the relevant act. In summary, Division 2 applies to 'past acts' (defined in s 228). They are acts that were done before 1 January 1994 and certain other acts done after that date. Division 2A applies to 'intermediate period acts' as defined in s 232A; these are acts that were done between 1 January 1994 and 23 December 1996. Division 2B applies to 'previous exclusive possession acts' as defined in s 23B; these are acts done on or before 23 December 1996. Division 3 applies to 'future acts'; these acts are defined in s 233 and are acts done after 1 January 1994. The public works referred to in the separate questions referred to the Full Court may fall for consideration under any of these divisions.

Public works pre - 23 december 1996 23 The public works referred to in paragraphs (i) and (ii) of Question 1 commenced to be constructed or established before 23 December 1996. They consist of a windmill-driven pump, established in 1977; a new windmill structure, an earth dam storage, a fibreglass reservoir and reticulation pipes, all constructed between September 1985 and June 1986; a State School constructed in or about early 1988; and a residential house constructed in the 1993/94 financial year. These public works, having been constructed or established prior to 23 December 1996, fall to be considered under Division 2B of Part 2. 24 Division 2B, as described in the overview in s 23A, provides that certain acts that were done on or before 23 December 1996 will have completely or partially extinguished native title (see s 23A(1)). If the acts fall within the category of 'previous exclusive possession acts' they will have completely extinguished native title (see s 23A(2)). This is effected by s 23C(2), which provides: "If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth: (a) the act extinguishes native title in relation to the land or waters on which the public work (on completion of its construction or establishment) was or is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began." 25 Section 23C(3) further provides that if s 23C applies to the act, other extinguishment provisions do not apply to that act. These other provisions are s 15, which concerns 'past acts' and s 22B, which concerns 'intermediate period acts'. They contemplate partial extinguishment or the application of the non-extinguishment principle, a form of "suspended extinguishment". In contrast, a 'previous exclusive possession act' completely extinguishes native title.

26 'Previous exclusive possession act' is defined in s 23B. Relevantly, s 23B(7) provides: "An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A); and (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996." 27 It is clear therefore that for s 23B(7) to apply, the act in question must be "valid" and must consist of the construction or establishment of a public work on or before 23 December 1996. 28 An act may be "valid" either because it was valid when done and it was done before the commencement of the Racial Discrimination Act 1975 (Cth) ("Racial Discrimination Act") or it is validated by the provisions of the Native Title Act. The Native Title Act provides that an act may be "valid" if it is a 'past act' under s 228 of the Native Title Act and is validated by s 14 of the Native Title Act or by s 8 of the State Act (see Wilson v Anderson at 328 [53]). The Native Title Act further provides that an act may also be valid if it is an 'intermediate period act' under s 232A of the Native Title Act and is validated by s 22A of the Native Title Act or by s 8A of the State Act. The statement of facts shows that the parties agree that the acts of constructing or establishing the public works, identified in the relevant paragraphs, are "valid". 29 As noted, the parties have agreed that each of the acts is a 'public work' within the definition in the Act. The public works referred to in (i) and (ii) of Question 1 were constructed prior to 23 December 1996 and therefore satisfy the requirements of a 'previous exclusive possession act' in s 23B(7). Accordingly, subject to the exclusory provisions of s 23B, these acts will have extinguished native title. It is therefore necessary now to examine the application of any relevant exclusory provisions which are found in later subsections of s 23B. 30 The applicants submitted that the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1 are excluded from being 'previous exclusive possession acts' because of s 23B(9) which provides: "An act is not a previous exclusive possession act if it is: (a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters." 31 To satisfy any of the sub-paragraphs in s 23B(9), the construction or establishment of the public work must first be an act that is "the grant or vesting of any thing". The applicants submitted that the construction or establishment of a public work is a "vesting" because the construction of a fixture vests title to that fixture in the owner of the freehold. The construction of a public work and its attachment to the land therefore, the applicants contended, vested title in the public work in the Council as owner of the land held on trust. 32 This submission must be rejected. Section 23B(9) provides, in terms, that an act is not a previous exclusion possession act if it "is" the grant or vesting of any thing. It is straining language to say that the beneficial impact (assuming the impact to be beneficial) upon the physical characteristics, value or utility of the land consequent upon the construction or establishment of public works and the simultaneous operation of principles relating to fixtures, results in some unspecified way in the construction or establishment of the work being a grant or vesting. The public work is neither "granted" nor "vested." In truth, there is no change at all in the fee simple interest as such, even if the land becomes, as a practical matter, more valuable or more useful. The correctness of this approach is confirmed when reference is made to other provisions within the same legislative framework, including other parts of the same section, where a clear distinction is drawn between acts that are or "consist of a grant or vesting" (which are dealt with by s 23B(2) and subss 23B(9), (9A) and (9C)) and acts that "consist of the construction of establishment of any public work" (within s 23B(7)). 33 Our conclusion is also supported by reference to the definition of public work in s 253, which expressly contemplates that some public works may have become fixtures. The Act thus confronts and deals with the notion that public works may, in a sense, physically or tangibly "enlarge" the interest in the land on which they are constructed but, nevertheless, s 23B(7) provides that they are 'previous exclusive possession acts' which extinguish native title. It is unlikely in these circumstances that the legislature intended that certain public works, which might by the Act's definition be fixtures and which would extinguish native title because they would fall within the definition of a 'previous exclusive possession act' in s 23B(7), should not in fact extinguish native title because the acts in question are the construction or establishment of fixtures and therefore involve the vesting of an interest. 34 Finally, the approach contended for by the applicants would create uncertainty, unlikely to have been intended, in that an act consisting of the construction of a public work that also involved the creation of a fixture would not extinguish native title because of the operation of s 23B(7) upon the consequent suggested "vesting", whereas the construction of a work that did not involve the creation of a fixture would have no such effect. 35 In their written submissions the applicants further submitted that s 23D applied to the Deed so that, it was contended, the construction or establishment of the works done on land the subject of the grant by the Deed could not extinguish the rights and interests of the applicants through the operation of s 23C. This submission was not developed in oral argument and need only be considered briefly. Section 23D provides: "If: (a) a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 23C affects that reservation or condition or those rights and interests." 36 The text of s 23D makes it clear that the section has no application to protect native title rights and interests from extinguishment by previous exclusive possession acts as provided for by s 23C; its only application is to protect reservations, conditions or rights and interests "other than native title rights and interests". Section 23D confirms that these other interests are not extinguished by previous exclusive possession acts, but it does not operate to restrict the extinguishment of native title rights and interests. The submission must therefore be rejected. 37 The first part of Question 1 should therefore be answered: Apart from the operation of s 47A of the Native Title Act 1993 the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1 would, because of provisions of the Native Title Act, have extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated. This of course leaves for consideration under Question 2 whether, by reason of the operation of s 47A, the extinguishment is to be disregarded.

PUBLIC WORKS POST - 23 DECEMBER 1996 38 The public works referred to in paragraphs (iii) and (iv) of Question 1 commenced to be constructed after 23 December 1996 and therefore do not fall within Division 2B of Part 2. The public works consist of a house, a reticulated sewerage scheme and a sport and recreation stadium. The extinguishment provisions that now need to be considered are those which treat acts done after 23 December 1996 as 'past acts' (Division 2), 'intermediate period acts' (Division 2A) and 'future acts' (Division 3). (See [22] above, where the relevant periods of operation are set out.)

Past Acts - Division 2 of Part 2 39 Like Division 2B already discussed, Division 2 of Part 2 contains provisions for the "validating" of 'past acts'. The effect of validation in relation to 'past acts' is explained by s 15(1), which provides: "(1) If a past act is an act attributable to the Commonwealth: (a) if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies - the act extinguishes the native title concerned; and (b) if it is a category A past act to which subsection 229(4) applies: (i) in any case - the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (ii) if paragraph 229(4)(a) applies - the extinguishment is taken to have happened on 1 January 1994; and (c) if it is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned - the act extinguishes the native title to the extent of the inconsistency; and (d) if it is a category C past act or a category D past act - the non-extinguishment principle applies to the act. Note: This subsection does not apply to the act if section 23C or 23G applies to the act." 40 As we are considering the effect of public works, the relevant part of s 15(1) is sub-paragraph (b)(i). It is not suggested that the other sub-paragraphs of s 15(1) are relevant. The works cannot be 'category B past acts' because they are not the grant of a lease (as required by s 230), nor are they 'category C past acts' for the reason that they are not the grant of a mining lease (see s 231). No party submitted that they could be 'category D past acts', as those acts must have occurred before 1 January 1994 (see s 231 and s 228(2), which define 'past act'). 41 If the construction of the public work (establishment not being presently relevant) is a 'category A past act' to which s 229(4) applies, that construction will extinguish native title. 'Category A past act' is defined in s 229(4): "(4) A past act consisting of the construction or establishment of any public work is a category A past act if: (a) the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or (b) the work was constructed or established before 1 January 1994 and still existed on that day; or (c) the work was constructed or established on or after 1 January 1994 and the construction or establishment is a past act because subsection 228(9) applies." 42 It will be apparent that (4)(a) and (b) cannot apply to these public works because they were constructed after 1 January 1994. If the public works in paragraphs (iii) and (iv) of Question 1 fall within s 229(4) at all, they must fall within subparagraph (c), which in turn requires consideration of s 228(9). 43 Section 228(9) provides: "(9) Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is apast act if: (a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and (c) the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and (d) the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and (e) the later act is not the making, amendment or repeal of legislation.". 44 Subsection (10) excludes some acts from being a 'past act', but it is not suggested that the subsection has any relevance in the present circumstances. 45 Each of the conditions in s 228(9)(c) must be satisfied for the construction of the public work to be a 'past act'. If it is a 'past act' under s 228(9), then it will fall within s 229(4)(c) and will be a 'category A past act'. If it thus is a 'category A past act' under s 229(4), the act will extinguish native title under s 15(1)(b) (see [35] above). 46 It may assist in the application of the complex provisions of s 228(9) if we substitute for the statutory expressions 'earlier act' and 'later act' the relevant agreed facts. The earlier act is the grant made by the Deed (which took place on 17 October 1985); and each later act is the construction of a public work. All the public works now being considered were constructed in 2000 and 2002. So modified, the provisions would read: (9) Subject to subsection (10), the construction of a public work (in 2000 or 2002) that takes place on or after 1 January 1994 is a past act if: (a) the construction of a public work would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) the grant made by the Deed (in 1985) that is a past act because of any subsection of this section took place before the construction of a public work (in 2000 or 2002); and (c) the Deed contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the Deed related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and (d) the construction of a public work is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and (e) the construction of a public work is not the making, amendment or repeal of legislation. 47 It will be seen that the construction of the public works under consideration fall within the threshold requirements of s 228(9) because the construction took place after 1 January 1994. We therefore turn to the application of each of the paragraphs of s 228(9). 48 Section 228(9)(a) requires for its operation that the construction of a public work would be a 'past act' under s 228(2) if that subsection were not limited in its application to acts taking place before a particular day. This directs us to s 228(2), which provides: "(2) Subject to subss (10), if: (a) either: (i) at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or (ii) at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and (b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist; the act is a past act in relation to the land or waters." 49 The public works in question were constructed in 2000 and 2002 and it may be assumed for present purposes that native title existed in relation to the land upon which the works were constructed. The construction of each public work would therefore fall within the first element of this part of the definition of a 'past act' in s 228(2)(a)(ii) if that provision were not limited in its operation to acts occurring before 1 January 1994. Section 228(2)(b) provides for the second element of this part of the definition of a 'past act'. To be satisfied, it requires that, apart from the Native Title Act, the construction of the public work was "invalid to any extent", but would have been valid to that extent if the native title did not exist. Let it be assumed for the sake of argument that the construction of the public works in question was inconsistent with native title interests. 50 It follows that, on the assumptions made, the construction of the public works presently in question would be 'past acts' under s 228(2) if that subsection were not limited in its application to acts taking place before a particular day. Accordingly, when we return to s 228(9)(a) we find that the first element of that definition of 'past act' is satisfied by the construction of each of the public works referred to in paragraphs (iii) and (iv) of Question 1. 51 The next provision to be considered is s 228(9)(b) (see [46]). The grant made by the Deed took place on 17 October 1985, and therefore took place well before the "later acts" constituted by the construction of the public works in 2000 and 2002. The grant made by the Deed is a 'past act' for the purposes of s 228(9)(b) because, first, it took place before 1 January 1994 (see s 228(2)(a)(ii)) and secondly, the grant made by the Deed, being the grant of a freehold estate, was inconsistent with any native title interests (see s 228(2)(b)). Therefore, the grant made by the Deed is a 'past act' for the purposes of s 228(2) and in consequence, the requirements of s 228(9)(b) are satisfied. As a result it required and attracted validation under the provisions of the Act. 52 We can now turn to the provision that is the subject of controversy between the parties, s 228(9)(c). It requires that the earlier act (the grant made by the Deed) contain or confer a reservation, condition, permission or authority under which the whole or part of the land was to be used at a later time "for a particular purpose". The grant made by the Deed was a grant in fee simple to the Council in trust: "… subject to the trusts, reservations and conditions hereinafter specified, and to the Exclusions specified in the Second Schedule hereto and such other Reservations and Conditions as may be contained in and declared by the Laws of Our said State and in particular to the provisions of the Community Services (Torres Strait) Act 1984 and the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 and to any regulations under those Acts." 53 The Deed contains what it describes as a 'Schedule of Trusts' which provides: "The grantee is to hold the said land in trust for the benefit of Islander inhabitants and for no other purpose whatsoever." 54 The respondent submits that this provision is a reservation or condition under which the land was to be used "for a particular purpose" and that the definitional requirements of s 228(9)(c) are thus satisfied. This is contested by the applicants, who deny that the provision involves a "particular purpose". 55 There can be no doubt that the Deed does contain a condition for the use of the land for a purpose. The Deed itself implicitly accepts that the trust for the benefit of Islander inhabitants is a "purpose", for it expressly provides that the land is to be held for the benefit of Islander inhabitants "and for no other purpose whatsoever" (emphasis added). There is no reason not to accept that what the Deed treats as a "purpose" is in truth a "purpose" as a matter of ordinary usage. The question is, however, whether there is a reservation or condition for a "particular" purpose within the meaning of s 228(9)(c). 56 The introduction into s 228(9)(c) of the concept of a "particular" purpose, with illuminating examples of such a purpose, shows unambiguously that the reservation of land for a purpose that is not a "particular" purpose was not intended to be sufficient to attract the definition of 'past act'. By grounding the definition in the reservation etc. for a "particular" purpose the legislature must be taken to have accepted that there would be "non-particular" or general purposes that would not be sufficient to satisfy the policy objectives of the definition. The example contained within s 228(9)(c) itself is illuminating because it can readily be seen how a "reservation for forestry purposes" is a reservation for a "particular" purpose. The notion of "particular" purpose is further clarified by the context, which includes s 228(9)(d) and the related example given in that paragraph. It is also easy to see how, for the purposes of s 228(9)(d), an act may be done in good faith under a reservation for a "particular" purpose such as - to take the example chosen by the legislature - the issue in good faith of a licence to take timber under a reservation for forestry purposes. 57 Once it is accepted that there is an intended distinction between a "particular" purpose and other, (generally) broader purposes, it becomes apparent that the purpose of "the benefit of Islander inhabitants" is not a "particular" purpose but, rather, a purpose that lies well outside the boundaries marked off by the introduction into the definition of the notion of "particular". 58 This conclusion is of course reached in a particular context and an important element in that context is the breadth of the grant itself. It is a grant in fee simple of land upon trust to a council for "the benefit of Islander inhabitants". The grant of the highest estate in land subject only to its use for "the benefit of Islander inhabitants" suggests that that named purpose is a purpose of great breadth and negligible particularity. 59 Any contrary conclusion would have, in the context of the Deed and in the context of any deed like it, the remarkable result that any acts, of whatever nature, done by the grantee of a trust for the benefit of the inhabitants of the trust property would potentially come within the definition of a 'past act' and might effect a statutory extinguishment of native title. Whilst the policy objectives pointing to extinguishment in circumstances such as those given by way of example in s 228(9) (forestry reservations) can easily be discerned, it is quite unclear why an act done in the pursuit of the general purpose of "benefit[ing] the Islander inhabitants" of the land should necessarily result in the extinguishment of native title. To so find would impute to the legislature an intention which is not consistent with the language of the provision or with any apparent policy objective. 60 It remains to consider whether other reservations and conditions contained in the Deed satisfy the requirements of s 228(9)(c). 61 The specified reservations in the Deed are: "1 (a) All minerals (as defined by the Mining Act 1968-1983) on and below the surface of the land; and (b) The right of access for the purpose of searching for and working any mines (as defined by the Mining Act 1968-1983) in any part of the land. 2 (a) All petroleum (as defined by the Petroleum Act 1923-1983) on or below the surface of the land; and (b) All rights of access for the purpose of searching for and for the operations of obtaining petroleum in any part of the land, and all rights of way for access and for pipe-lines and other purposes requisite for obtaining and conveying petroleum in the event of petroleum being obtained in any part of the said land. 3 (a) All forest products and quarry material (As defined by the Forestry Act 1959-1984) above, on or below the surface of the land; (b) The right to enter and re-enter for the purpose of establishing and carrying on such operations and works as the Conservator of Forests thinks fit for the getting and selling of forest products and quarry materials (as defined by the Forestry Act 1959-1985) in any part of the land. 4. An area of land, whether in separate parcels or in whole, comprising 10 hectares to the Crown for public purposes." 62 It may well be that some, perhaps all, of these reservations fulfil the requirement of being for a "particular" purpose but it is not suggested that the public works under consideration were constructed in reliance upon any of them. The consequence of this is that the additional definitional requirements of s 228(9)(d) are not satisfied by the specified reservations in the Deed. 63 The Deed also imports any reservations and conditions that are contained in the provisions of the Community Services (Torres Strait) Act (1984). Even if it could be said that the reference in the Deed to the reservations and conditions that may be contained in the Community Services (Torres Strait) Act satisfied the requirements of s 228(9)(c) as being "contained in or conferred by" the Deed, the respondents failed to point to any provision of that Act that might relevantly impose a reservation, condition etc. that the land be used for a "particular" purpose.

64 The respondent points out that the Council constructed the public works in accordance with the power conferred by s 45(5)(f) of the Community Services (Torres Strait) Act, which provides: "(5) Matters with respect to which an Island council may exercise its powers and discharge its functions include - … (f) works, matters and things that, in its opinion, are necessary or conducive to the good rule and government of its council area or to the wellbeing of its inhabitants." 65 This provision does not satisfy s 228(9)(c) because it does not provide a condition or reservation etc. that the land be used for a particular purpose. The Community Services (Torres Strait) Act does not impose any conditions or reservations on the future use of the land by the Council, save as to the Council acting in accordance with its conferred powers and fulfilling its stated functions. 66 For these reasons we conclude that the requirements of s 228(9)(c) are not satisfied in respect of the Deed and that in consequence, the acts of construction of the several public works are not within the definition of 'past act' in s 228(9), and therefore do not satisfy the definitional requirements of a 'category A past act' contained in s 229(4). It follows that we conclude that the construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 do not extinguish native title under the 'past acts' regime in Division 2 of Part 2.

Intermediate period acts - Division 2A of Part 2 67 The next division to be considered, Division 2A of Part 2, requires little discussion. The construction of the public works did not involve 'intermediate period acts' as defined for the purposes of Division 2A by s 232A. The effect of s 232A is that Division 2A applies only to acts that took place between 1 January 1994 and 23 December 1996 and the works referred to in paragraphs (iii) and (iv) of Question 1 were constructed much later, in 2000 and 2002. It follows that the construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 do not extinguish native title under the 'intermediate period acts' regime in Division 2A of Part 2.

Future Acts - Division 3 of Part 2 68 It remains to consider the 'future acts' regime provided for by Division 3 of Part 2. This division contains provisions for the "validating" of 'future acts'. Relevantly, parts of subdivision J apply to acts consisting of the construction or establishment of public works. Section 24JB provides for extinguishment of native title by acts within s 24JA. Section 24JB(1) provides: "If the act consists of the construction or establishment of a public work: (a) the act extinguishes any native title in relation to the land or waters on which the public work (on completion of its construction or establishment) is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began." 69 Section 24JA explains what acts are covered by the subdivision. Section 24JA(2) states: "(1) This Subdivision applies to a future act (the later act) if: (a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and (b) the earlier act was valid (including because of Division 2 or 2A); and (c) the earlier act: (i) was done by the Crown in right of the Commonwealth, a State or Territory; or (ii) consisted of the making amendment or repeal of legislation by the Commonwealth, a State or Territory; and (d) the earlier act contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of any land or waters was to be used for a particular purpose; and (e) the later act is done in good faith: (i) under or in accordance with the reservation; or (ii) in the area covered by the reservation, so long as the act's impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had." 70 Subsection (2) of s 24JA applies to land over which a lease has been granted (by the earlier act) and is therefore irrelevant to the present questions. 71 Preliminary to a consideration of the requirements of s 24JA is the definition of a 'future act', contained in s 233(1): " Subject to this section, an act is a future act in relation to land or waters if: (a) either: (i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or (ii) it is any other act that takes place on or after 1 January 1994; and (b) it is not a past act; and (c) apart from this Act, either: (i) it validly affects native title in relation to the land or waters to any extent; or (ii) the following apply: (A) it is to any extent invalid; and (B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and (C) if it were valid to that extent, it would affect the native title." 72 The construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 took place after 1 January 1994, and therefore fall within s 233(1)(a)(ii). 73 The construction of the public works are not 'past acts' because 'past acts' are limited by s 228 to acts that took place before, either, 1 July 1993 (if the act is the making, amendment of repeal of legislation) or 1 January 1994 (if it is any other act) (see s 228(2)(a)). The acts of construction of the public works, not being 'past acts', therefore satisfy the requirements of s 233(1)(b). 74 The application of paragraph (c) of s 233(1) is more difficult. The parties have agreed that the public works are "valid" without stating whether the "validity" of the works is a consequence of the validating provisions of the Native Title Act or a consequence of the act being valid when done. The requirements of s 233(1)(c)(ii) are in similar terms to the requirements of s 228(2) and, on the assumption of inconsistency with native title, essentially for the same reasons we give at [49]-[50] above, we conclude that the provision is satisfied. The acts of construction of the public works in question are consequently 'future acts' and, accordingly, satisfy the threshold requirement of s 24JA. 75 As with s 228(9), it may assist in understanding the application of s 24JA(1) if we substitute for the statutory expressions 'later act' and 'earlier act' the relevant agreed facts: the 'later act' is the construction of the public work and the 'earlier act' is the grant made by the Deed. So modified, the provisions would read: (1) This Subdivision applies to the construction or establishment of a public work if: (a) the grant made by the Deed took place before the construction or establishment of a public work and on or before 23 December 1996; and (b) the grant made by the Deed was valid (including because of Division 2 or 2A); and (c) the grant made by the Deed: i. was done by the Crown in right of the Commonwealth, a State or Territory; or ii. consisted of the making amendment or repeal of legislation by the Commonwealth, a State or Territory; and (d) the grant made by the Deed contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of the land or waters was to be used for a particular purpose; and (e) the construction of a public work is done in good faith: i. under or in accordance with the reservation; or ii. in the area covered by the reservation, so long as the act's impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had. 76 The grant made by the Deed took place on 17 October 1985. As this was before 23 December 1996 and before the construction of the public works in 2000 and 2002, the requirements of s 24JA(1)(a) are satisfied. The grant made by the Deed is validated by the Act (and this is also agreed between the parties) and so s 24JA(1)(b) is satisfied also, and, since the grant made by the Deed was done by the Crown in right of the State of Queensland, s 24JA(1)(c) is satisfied too. 77 Section 24JA(1)(d) requires that the Deed contain, make or confer a reservation, proclamation, dedication, condition, permission or authority under which the whole or part of the land was to be "used for a particular purpose". The opening words of this provision are somewhat more comprehensive than the opening words of s 228(9)(c) but the same concept of "particular" purpose is central to the operation of s 24JA(1)(d) also. The examples that we found to have illuminated the interpretation of s 228(9)(c) are not given in the same way in the text of s 24JA(1)(d), but similarly illuminating examples are given by way of footnote and form part of the statute (see Brooks v Federal Commissioner of Taxation (2000) 173 ALR 235 at 251). The examples also point to the same construction of "particular" purpose. Accordingly, for essentially the same reasons for which we concluded that s 228(9)(c) did not apply, we conclude that the grant made by the Deed does not satisfy the requirements of s 24JA(1)(d). It follows that we conclude that the construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 did not extinguish native title under the 'future acts' regime in Division 3 of Part 2.

Extinguishment apart from the Native Title Act 78 We have concluded that the construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 did not extinguish native title under the provisions of the Native Title Act. It is not now necessary to consider whether those acts may nevertheless have extinguished native title at common law. Any such extinguishment by 'past acts' or 'future acts' inconsistent with native title is now regulated by the Act.

Conclusions as to Question 1 79 For these reasons Question 1 should be answered: (a) Apart from the operation of s 47A, the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1 would, because of provisions of the Native Title Act, have extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated. (b) The construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 has not extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated.

QUESTION 2 - WHETHER SECTION 47A REQUIRES THAT SUCH EXTINGUISHMENT BE DISREGARDED FOR THE PURPOSES OF A DETERMINATION OF NATIVE TITLE 80 Division 4 of Part 2 of the Native Title Act contains provisions that require extinguishment by certain acts to be disregarded. Some of these provisions, including s 47A, were introduced as part of the 1998 amendments.

81 Section 47A provides: "(1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made: (i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and (c) when the application is made, one or more members of the native title claim group occupy the area. (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded: (a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii); (b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services). Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title. (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed (a) the determination does not affect: (i) the validity of the grant or vesting or of the creation of the trust or reservation; or (ii) the validity of the creation of any other prior interest in relation to the area; or (iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest. (4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity." 82 It is agreed between the parties, and it is clearly the case, that the grant made by the Deed is within s 47A(2)(a) as being "the doing of the thing" (the grant in fee simple made by the Deed) that resulted in the land being held on trust expressly for the benefit of Torres Strait Islanders. It follows that s 47A(2)(a) applies to the grant made by the Deed and that any extinguishment of native title rights and interests that might have occurred by reason of the grant made by the Deed is to be disregarded. 83 The disagreement between the parties is about the application of s 47A(2) to the construction or establishment of the public works. The applicants contend, and the respondents deny, that the section operates to save from extinguishment any native title rights and interests that might otherwise have been extinguished. 84 It is important to note at the outset that s 47A(2) is concerned with the characterisation of "acts" that are to be disregarded. It doing so, it characterises the act to be disregarded as a "grant or vesting", or a "doing of the thing that resulted in the holding or reservation" or a "creation of any other prior interest". The provision is tightly worded; it would, for example, have had a much broader potential application if the paragraphs were expressed to apply to extinguishing acts that "involved" a grant, a vesting or a creation of a prior interest. The provision requires, however, that in the consideration of its application to any extinguishment otherwise effected by (relevantly here) the construction or establishment of the public works, it must first be determined what, as a matter of characterisation for the purposes of s 47A(2), the act by which native title is extinguished actually is. 85 The extinguishment with which we are presently concerned is a statutory extinguishment brought about by the operation of complicated provisions directed specifically to public works. We have concluded in answer to Question 1 that native title rights and interests have been extinguished by the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1, and that this occurred by virtue of the provisions of Division 2B. It will be recalled that within Division 2B, it is provided by s 23C(2) that if an "act" is a 'previous exclusive possession act' it extinguishes native title. Section 23B(7) defines 'previous exclusive possession act' as an act "consist[ing] of the construction or establishment of [a] public work". The extinguishing act now being considered for the purposes of the potential application of s 47A(2) having been characterised for one purpose as "the construction or establishment of [a] public work", it would seem appropriate to characterise it in the same way when considering the operation of a provision for the disregarding of extinguishment. In this way, a coherent and consistent operation may be given to the relevant provisions of the Act. 86 In any event, as we have discussed in considering our answer to Question 1, the construction or establishment of a public work is not apt to be described as a "grant or vesting", whatever may occur, as a matter of law, as a consequence of the work becoming "fixed" to the land. (It should not be assumed, of course, that each of the public works in question was in fact "fixed" to the land - the term would not necessarily be apposite, for example, to describe the rearrangement of earth and other material on the land to form a dam.) In relation to the second category provided for in s 47A(2)(a) it is clear that the provision has no application to the construction or establishment of public works in question since this did not result in any "holding or reservation" of the land. 87 It remains to consider whether the construction or establishment of the public works falls within s 47A(2)(b), as the "creation of any other prior interest" in relation to the land. 88 "Interest" is defined for the purposes of the Act in s 253. The definition is very broad and reads as follows: "interest, in relation to land or waters, means: (a)a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters; or (ii) an estate or interest in the land or waters; or (c) a restriction on the use of the land or waters, whether or not annexed to other land or waters." 89 Taken in isolation, the definition of "interest" extending, as it does, beyond legal and equitable interests to "any other right" in connection with land, might extend to the right that the owner of land has to deal with things that have become parts of the land such as dams, pumps, houses, pipes and other such things which, in this case, are in the nature of public works. It seems to us however that in the context of the Native Title Act such a consequential or derivative interest cannot fall within the definition, wide though it is, of "interest" and it certainly sits uncomfortably with the notion of "the creation of any other prior interest" for the purposes of s 47A(2)(b). 90 We do not need to resolve this question however because, here again, it cannot be said that the construction or establishment of the public works is properly to be characterised as "the creation of a prior interest" in the land. It follows that s 47A(2)(b) does not apply so as to compel the disregarding of the extinguishment brought about by the acts of constructing or establishing the public works.

Conclusions as to Question 2 91 For these reasons Question 2 should be answered: The acts referred to in paragraphs (i) and (ii) of Question 1 have, by reason of the provisions of the Native Title Act, extinguished any native title rights and interests in the land and s 47A does not require that the extinguishment be disregarded for the purposes of a determination of native title under the Native Title Act.

inconsistent results from the application of the act 92 One other matter should be mentioned in conclusion. The applicants argued that the Court should not construe the Native Title Act as having the effect of extinguishing native title in respect of small areas, here and there, upon which public works had been constructed. It was said that an interpretation that had this effect in some instances and not in others would create an especially anomalous situation that could not have been intended. 93 Two short points may be made in answer to this argument. The first is that the Native Title Act, as amended, directs its attention specifically to the extinguishment of native title rights and interests by the construction or establishment of public works. The second is that the Act quite explicitly provides for a regime under which an act might or might not effect extinguishment depending upon the nature of the act and the time at which it was done. The Native Title Act acknowledges the reality of extinguishment in relation to acts occurring before the Racial Discrimination Act came into force and seeks to address the uncertainty attaching to the validity of certain acts in the period between the commencement of the Racial Discrimination Act and the commencement of the Native Title Act ('past acts'). Acts occurring after the commencement of the Native Title Act ('future acts') fall to be considered under a different set of statutory provisions. It is inevitable that such a regime will produce differing results in differing circumstances. 94 With a broader application, s 47A operates beneficially to protect native title within the area it marks out. When it applies, it has the effect that extinguishment effected by the Act, or by the operation of the common law, must be disregarded. See, for example, Andrew Passi on behalf of the Meriam People v State of Queensland [2001] FCA 697 at [29] and Rubibi Community & anor v The State of Western Australia (2001) 112 FCR 409 at 450; [2001] FCA 607 at [182].

orders 95 The questions should be answered as follows: Question 1 Whether, apart from the operation of s 47A of the Native Title Act 1993 (Cth), the construction or establishment of any of the valid public works referred to in the statement of agreed facts at paragraphs - (i) 10.1; (ii) 10.2, 10.3 or 10.4; (iii) 10.5 or 10.7; and (iv) 10.6 would have extinguished native title rights and interests otherwise existing in relation to the land or waters on which the public works were or are situated. Answer (a) Apart from the operation of s 47A, the construction or establishment of the public works referred to in paragraphs (i) and (ii) of Question 1 would, because of provisions of the Native Title Act, have extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated. (b) The construction of the public works referred to in paragraphs (iii) and (iv) of Question 1 has not extinguished any native title rights and interests that might otherwise have existed in relation to the land on which the public works are or were situated.

Question 2 Whether, if any of the acts referred to in Question 1 would, apart from the operation of s 47A have extinguished native title, s 47A requires that such extinguishment be disregarded for the purposes of a determination of native title under the Native Title Act 1993 (Cth). Answer The acts referred to in paragraphs (i) and (ii) of Question 1 have, by reason of the provisions of the Native Title Act, extinguished any native title rights and interests in the subject land and s 47A does not require that the extinguishment be disregarded for the purposes of a determination of native title under the Native Title Act. 96 It is not appropriate that there be any order as to costs: see s 85 of the Native Title Act. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, their Honours Justice French and Justice Cooper.

Associate: Dated: 14 October 2003 Counsel for the Applicants: Mr J Basten QC with Ms G Reid

Solicitors for the Applicants: Torres Strait Regional Authority

Counsel for the Respondent: Mr G Hiley QC with Ms S Brown

Solicitors for the Respondent: Crown Solicitor (Queensland)

Counsel for the Northern Territory: Mr T Pauling QC with Ms S Brownhill

Solicitors for the Northern Territory: Solicitor for the Northern Territory

Counsel for Commercial Fishing Interests: Mr P Gore

Solicitors for Commercial Fishing Interests: Gore & Associates

Date of Hearing: 15 May 2003

Date of Judgment: 14 October 2003

Native Title Amendment Act 1998(Cth)

Racial Discrimination Act 1977(Cth)

Community Services (Torres Strait) Act 1984(Qld)ss 40, 45

At a glance

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