Graham on behalf of the Ngadju People v State of Western Australia

Federal Court of Australia|2014-07-03|Before: Mr J, Marshall J

Subject to Order 2, the applicant bring forward a minute of proposed determination in accordance with the accompanying reasons for judgment read together with, and partially correcting, the reasons provided on 21 May 2014.
The applicant and the first respondent confer in a case management conference before Deputy Registrar Daniel to attempt to resolve the issues referred to at [30] and [38] of the accompanying reasons for judgment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6020 of 1998

JUDGE: MARSHALL J DATE: 3 JULY 2014 PLACE: MELBOURNE (heard on the papers)

Introduction 1 On 21 May 2014, the Court published reasons for judgment dealing with the extent to which native title rights and interests had been extinguished in the "Ngadju Trial area"; see Graham v Western Australia [2014] FCA 516 ("the initial judgment"). These reasons for judgment are to be read together with the reasons provided on 21 May 2014. 2 At [121] of the initial judgment the Court granted leave to any party to make further submissions on any matter which the Court had inadvertently not dealt with in the initial judgment. In response, certain issues were identified which were submitted to have been inadvertently omitted from consideration in the initial judgment. The most substantial area of omission was the issue of validity of certain mining tenements granted in 2004, 2006 and 2007 respectively.

Validity of some WMC State Agreement Mining Leases 3 The initial judgment at [5] to [19] dealt with whether certain mining tenements there described granted prior to the commencement of the Racial Discrimination Act 1975 (Cth) ("RDA") extinguished native title. The judgment did not address whether various mining tenements granted or renewed post the commencement of the RDA were valid or validated. 4 Counsel for the second and third respondents contended that a bare reference at [6] of the initial judgment to some mining leases continuing to operate under the Mining Act 1904 (WA) meant that the Court had specifically directed its attention to the tenements referred to the preceding paragraph. Unfortunately, due to oversight, that was not the case. Specific examination of the submissions dealing with various leases purported to be granted on 24 December 2004, 6 October 2006 and 18 December 2007 is thus required. 5 The area of current contest concerns the validity of mining leases which had been valid WMC State Agreement mining leases prior to 1994 but which were later transformed into or re-granted as leases under the Mining Act 1978 (WA) or the Nickel Refinery (BHP Billiton Nickel West Pty Ltd) (Termination of Agreements) Agreement Act 2008 (WA) ("the 2008 Act").

(i) "Bespoke" WMC State Agreement Mining Leases 6 The WMC State Agreement was executed in 1968 and was amended by subsequent agreements. Its purpose was to facilitate the mining and refining of nickel and allied products. Leases granted pursuant to that agreement were unique in the sense that they were not granted under the Mining Act 1904 (WA) or the Mining Act 1978 (WA) but in accordance with the WMC State Agreement itself and the Government Agreements Act 1979 (WA). The WMC State Agreement was a government agreement under that latter Act. 7 Mineral leases under the WMC State Agreement are tailor made or bespoke agreements as identified in Cl 5A(2) of the WMC State Agreement as amended by Cl 3(3) of the Agreement ratified under the Nickel Refinery (Western Mining Corporation Limited) Agreement Act Amendment 1974 ("the 1974 Amendment") see also s 2C of the Government Agreements Act. 8 Mineral leases governed by the WMC State Agreement required leaseholders to undertake obligations which were not features of mining leases under the 1904 or 1978 Mining Acts. Those obligations included the building and operating of a nickel smelter, transport by rail certain tonnages of ore and compliance with specific rules concerning the renewal of mineral leases. 9 The WMC State Agreement was terminated in 2008. From the late 1990s mining leases under the WMC State Agreement were progressively "normalised". This meant that they were "released" from the WMC State Agreement and permitted to be developed outside its terms. The development could now extend beyond the mining of nickel and allied mineral products and would not be affected by obligations such as the building of a smelter or the transporting of certain tonnage by rail. The termination of the WMC State Agreement was effected by the process referred to at [15] below.

(ii) Leases granted on 24 December 2004 10 There were 209 mining leases granted on 24 December 2004 as part of the normalisation process as referred to at [9] above. The question arises as to whether these leases were validly granted future acts or category C immediate period acts under the Native Title Act 1993 (Cth) ("NTA"). As the mining leases were not entered into between 1 January 1994 and 23 December 1996, they are not intermediate period acts; see s 232A of the NTA. There is no dispute that they are future acts; see s 233 of the NTA. 11 The Court accepts the submission of counsel for the applicant that these leases are not pre-existing rights-based acts under s 24IB of the NTA. That is because they were not granted in accordance with the WMC State Agreement. They were not conditional on requirements which underpinned the grant of leases under the WMC State Agreement as referred to at [9] above. For the same reasoning the leases are not within the ambit of s 24IC of the NTA as "permissible lease etc renewals". 12 The Court accepts the submission of counsel for the applicant that the leases are too dissimilar from the earlier leases granted under the WMC State Agreement to be valid category C past acts. It is not necessary to deal with the further submission that the timing of the grant of these leases or their renewal rendered them invalid. It is sufficient to say that the above analysis shows that the leases are invalid to the extent that they affect native title; see ss 24OA and 28 of the NTA.

(iii) Leases granted on 6 October 2006 13 There is no material distinction between these leases and the leases granted on 24 December 2004. These leases, being conversions of previous existing leases, are also invalid to the extent that they affect native title; see ss 24OA and 28 of the NTA.

(iv) Leases renewed on 18 December 2007 14 There are 75 leases in this category. All leases were granted in 1976 except for two leases granted in 1973, ML15/346 and ML15/347, and two leases granted in 1966, ML15/150 and ML15/151. 15 On 27 November 2007, the State and BHP Billiton Nickel West Pty Ltd signed a Termination Agreement which included reference to the 75 leases and required an enactment to come into operation. The effect of the Termination Agreement once enacted was that the rights and privileges conferred by the WMC State Agreement ceased and required the holder of a lease to apply under s 78(2) of the Mining Act 1978 (WA) for a renewal of the lease on the expiry of the current renewed term. 16 ML15/150 and ML15/151 expired on 31 December 2007. On 18 December 2007, these leases were renewed as leases under the WMC State Agreement. However the time allocated for the renewals to be permitted had expired by then; see Cl 5A(1)(b) of the WMC State Agreement as amended in 1974. Those renewals were invalid and did not affect native title. 17 On 12 May 2008 the State and BHP Billiton Nickel West Pty Ltd entered into the Variation of Termination Agreement. The expiry of the leases was changed from 31 December 2007 to 31 December 2029. 18 The agreement entered into on 27 November 2007 and its 12 May 2008 variation were given legislative status when they were attached as schedules to the 2008 Act. 19 By the above process, ML15/150, ML15/151 and the 73 other leases purportedly renewed on 18 December 2007 were treated as transformed leases, migrating from the WMC State Agreement Act to the Mining Act 1978. The 2008 Act purportedly validated invalid renewals of ML15/150 and ML15/151 in recitals within it. 20 The granting of leases or their renewal by the 2008 Act and its schedules is not a past act; see s 228 of the NTA. Under s 228(4)(e) of the NTA an act will be a past act if it takes place on or after 1 January 1994 and "the interest created by the later act permits activities of a similar kind to those permitted by the earlier act". 21 Assistance is given in the interpretation of s 228(4)(e) by s 228(5) which gives examples of "similar and dissimilar acts for the purposes of paragraph 4(e)". Section 228(5)(a) provides: The grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act; 22 Section 228(4) of the NTA does not apply in the instant circumstances because of the different character of a mineral lease granted under the WMC State Agreement from one authorised only by the Mining Act 1978. The 75 leases purportedly renewed by the 2008 Act are not confined to the mining of nickel and allied minerals. In addition, in respect of ML15/150 and ML15/151 there is a gap of nearly 6 months between their expiry under the WMC State Agreement and their subsequently purported validated renewal on 18 December 2007. Section 228(4)(d) of the NTA operates to bar their renewal from qualifying as a past act under the NTA. 23 The next question which arises is whether the leases are future acts under s 233 of the NTA. The difference in the scope of the permitted mining use after renewal prevents such a classification to be made; see s 24IC of the NTA. The Court accepts the submissions of counsel for the applicant at [262] of their written submissions on extinguishment in this regard. There the following was said: Given that the acts involve the creation of new rights to mine they fall within the scope of NTA s 26(1)(c), and the right to negotiate procedures under NTA Part 2 Division 3 subdivision P apply. The exemption at s 26D does not apply because rights to mine minerals other than nickel are created in the leases in their later form that were not available in their earlier form (see NTA s 26D(1)(e)). Given that these have not been complied with in this instance the acts are invalid to the extent that they affect native title (NTA s 24OA).

(i) Special Lease 332/1059 24 The initial judgment inadvertently neglected to deal with the validity of special lease 332/1059. This lease was purportedly granted under s 32 of the Land Act 1933 (WA). There is no lease instrument in evidence in respect to this purported lease. There is insufficient evidence to conclude that it was validly granted. It did not extinguish native title.

(ii) Special Lease 3116/3838 25 At [41] of the initial judgment the Court incorrectly stated that special lease 3116/06724 wholly covers the area of land covered by special lease 3116/3838. As the agreed table of issues showed, that was an error. However, this lease is yet another example of a special lease in respect of which there is insufficient evidence to show it was validly granted. This purported special lease does not extinguish native title.

(iii) Special Lease 0778/42 26 The parties inadvertently omitted this lease from the agreed table of issues. As a consequence of that omission the Court did not deal with their dispute in that regard. This special lease is invalid as there was no lease instrument in evidence regarding it. In the absence of a formal lease instrument being in evidence there is no basis to conclude that this special lease was valid. It does not extinguish native title.

Current Road 2 27 The parties inadvertently omitted the matter from the table of agreed issues. The Court accepts the submission of the applicant that there is no evidence that current Road 2 is in existence. There is no relevant extinguishment of native title.

Freehold parcel CT 2683/901 28 There remains a dispute between the applicant and the State as to whether parts of CT2683/901 which do not overlap Lot No 699 extinguish native title. The applicant's written submissions in reply on extinguishment dealt with this issue at [88] to [92] where the following was said: The First Respondent at [12] seeks to rely on other dealings to indicate that the subject land of CT2683/901 has extinguished native title rights and interests. The First Respondent makes no submissions on these other dealings but has provided the documents within the First Respondent's Book of Documents at pp 55-83. The freehold tenure described in CT2683/901 is Lot 1 on DP51747. Lot 1 incorporates 3 previous tenures: lot 1874 running to the left of the Coolgardie-Esperance Highway (marked Princep St on older plans); the entirety of Northam lot 699 (originally marked as a residential lot); and that portion of lot 1873 that has the same north-south extent as lot 699 (Lot 1873 is a closed road evidently intended as a laneway behind the residential lots including 699). The Ngadju claim area excludes the township of Norseman, MapInfo shows that the claim boundary excludes most of CT2683/901 - only a small triangle on the eastern side of the lot is caught by the claim. The portion of the claim area that extends over CT2683/901 appears to be only a portion of previous Lot 1874. As such, any dealings in relation to previous Lot 699 and Lot 1873 are irrelevant. The First Respondent has not provided any evidence of dealings over Lot 1874. The former area of Lot 699, or at least part of it, appears to be used for a Caltex petrol station. This is consistent with documents showing Lot 699 being held by Ampol in 1962, and transferred to Caltex in 1999. This does not extend over previous Lot 1874. The First Respondent has also provided evidence of dealings over Lot 1875 in relation to Reserve 13004, which is a golf course, this area does not extend into Lot 1874. The Applicant submits that the dealings provided by the First Respondent have no relevance to the area of CT2683/901 which overlaps with the claim area and as such the Applicant relies on [45] of the Applicant's Submissions in relation to that tenure. 29 The Court, in the absence of any persuasive analysis to the contrary as that set out above, agrees with the above submissions and finds that the portion of CT2683/901 which overlaps with the claim area does not extinguish native title.

Mining leases granted between 1 January 1994 and 23 December 1996 30 At [102]-[103] of the initial judgment, the Court dealt with this issue. It observed that the table of issues expressed agreement on this matter. The parties now appear to be in dispute on this issue. In the circumstances, the Court proposes to refer this issue to a case management conference before a Registrar of the Court. If the applicant and the State are unable to reach agreement on this issue the Court may program a further hearing to deal with it.

Section 47B NTA issue 31 The initial judgment did not, with sufficient clarity, reflect the agreement between the applicant and the State as to the occupation as at March 2014 by the Ngadju people of all unallocated Crown land within the Ngadju trial area, other than UCL019 and 041. The Court now makes that finding unequivocally. It also notes that those areas were occupied by the Ngadju people as at the making of the application; see s 47B(1)(c) of the NTA. The Court also clarifies that it intended by its initial judgment in dealing with s 47B issues concerning UCL 019 and 041 that those areas were occupied by a member or members of the claim group as at the date when the application was made. These issues should now be considered fully resolved in favour of the applicant.

Acts affecting native title 32 At [115] of the initial judgment, the Court found that it was not necessary to have a general description of areas necessary or incidental to the establishment and operation of public works in any final determination. The judgment did not address the outstanding issue between the State and applicant regarding whether it is necessary to identify each particular act affecting native title or whether a generic description of acts affecting native title is sufficient in a determination. 33 Sections 225(c) and 225(d) of the NTA requires a determination of native title to include "the nature and extent of any other interests in relation to the determination area", and their relationship with the identified native title rights and interests. Noting that a determination of native title is a determination in rem, I am satisfied that it should be possible and it is preferable that each particular act affecting native title is identified in a final determination. Area necessary or incidental to water bores 34 At [69] of the initial judgment, the Court inadvertently did not correctly address the outstanding issue between the State and applicant regarding seven water bores identified by the State. In particular the parties agree that the water bores identified are public works pursuant to the extended definition of a public work in s 251D of the NTA. The outstanding issue relates to the area necessary or incidental to the water bores. Consistently with Banjima People v Western Australia (No 2) [2013] FCA 868, 2013 305 ALR 1 at [1450] to [1458], I find 0.10 ha (or about one-quarter of an acre) is an appropriate area necessary or incidental to the water bores.

Typographical errors and omissions 35 It is with sincere regret that I take responsibility for several typographical errors and omissions in the initial judgment. They are as follows and are now taken to be corrected by this judgment: An inappropriate additional repetitive heading between [7] and [8]; At [33] A1733/151 was intended to read A1733/152; At [44] the first reference to 3116/05192 should have read 3116/05465; At [46] the reference to 3116/2898 should have been a reference to 3117/2989; At [53] the reference to 3116/1654 should have been to 3116/1653; At [58], [59] and [62] the reference to 3116/251 should have been a reference to 3116/2521; At [75] the reference in the heading to 3352 should have been a reference to 3552 and reference in the heading to 1175 should have been a reference to 11775; and At [117] the reference to "Peak Charter" should have been a reference to "Peak Charles". 36 Further, at [2] of the initial judgment the full list of rights and interests of the applicant is not set out. There is an omission of "the right of exclusive possession in relation to the land and waters above the high water mark." 37 The initial judgment should have clarified that although historical petroleum tenements cover the entire claim area and extinguish exclusive native title rights and interests, such extinguishment must be disregarded in areas to which s 47A or s 47B of the NTA apply.

The L63/40 and UCL/034 overlap 38 This issue remains unresolved despite the comments at [120] of the initial judgment. It should also be the subject of the case management conference at [30] above and of a further hearing if necessary. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Land Act 1933(WA)s 32

Native Title Act 1993(Cth)ss 24IB, 24IC, 24OA, 28, 47A, 47B, 228, 232A, 233, 251D

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