Crown to Crown grants
94 The fourth subparagraph in Part A of the Territory's Aide Memoire concerns acts 4, 16, 18, 20, 22, 24, 26, 28 and 30 and whether previous Crown to Crown grants are not previous exclusive possession act under sub 23B(9C). The default position, by sub 23B(2) is that a grant of freehold land is a previous exclusive possession act unless such grant is denied that characterisation because of sub 23B(9C). If the previous grant is an exclusive possession act, that would cause the items above to have no additional compensable effect on native title.
95 Subsection 23B(9C) provides that Crown to Crown grants are not a previous exclusive possession act:
(a) unless, apart from the NT Act, the grant or vesting extinguishes native title in relation to the land or waters; or
(b) if the grant or vesting does not, apart from the NT Act, extinguish native title in relation to the land or waters - unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.
96 The grants in question were made to the Northern Territory Electricity Commission, the Northern Territory Housing Commission, the Conservation Land Corporation and the Commonwealth of Australia. The parties accept that each grantee is for the purposes of s 23B(9C) a statutory authority and that at the time of the grant there existed non-exclusive native title. If the previous grant is an exclusive possession act, that would cause the acts above to have no additional compensable effect on native title.
97 The applicant submits that the previous grants were Crown to Crown grants which were non-exclusive possession acts, and as a result, the subsequent acts identified in items 4, 16, 18, 20, 22, 24, 26, 28 and 30 had a compensable effect on native title. The Territory submits that either of the exclusions in sub 23(9C)(a) or 23(9C)(b) apply, so that the grant is properly understood as an exclusive possession act, and that subsequent acts had no effect on native title. The Commonwealth similarly submits that the grants are exclusive possession acts, but limits its contention to sub 23(9C)(b). The point is argued by all parties on the construction of sub 23(9C) and in particular the use of the phrase "apart from this Act".
98 By the applicant's construction, the Crown to Crown grant is not a previous exclusive possession act unless it extinguishes native title without requiring the validation of the NT Act. The expression "apart from this act", then, refers to the NT Act alone and presumes the continued operation of the RDA. This would include, for example, non-discriminatory grants made after the commencement of the RDA, but would not include discriminatory acts, which would require the validation of the NT Act. By extension, the current acts would not fall under sub 23(9C)(a) as the Crown to Crown grant requires validation under the NT Act, and accordingly, the grant would not be considered a previous exclusive possession act. The applicant says this is consistent with the findings in Ward HC: at [421]-[425].
99 The applicant submits that the same construction of "apart from this act" applies with respect to sub 23(9C)(b). The alternative provided in (b), it says, reflects the uncertainty at the time of drafting as to whether by use of the land native title could also be extinguished. That point was subsequently settled in Ward HC, which confirmed that the relevant inquiry as to extinguishment is that of inconsistency of rights, not inconsistency of use: at [78], [82], [215], [234]. In regards specifically to sub 23(9C)(b) the plurality in Ward HC said:
The operation of par (b) of sub-s (9C) presents some difficulty because, at first sight, it appears to proceed from the premise that use of land, as distinct from the creation or assertion of rights or powers in respect of land, may extinguish native title.
100 Further, insofar as the Territory and the Commonwealth submit that the creation of public works "converts" a non-extinguishing grant to an extinguishing previous exclusive possession act, that construction overlooks the clear distinction in s 23B between acts that consist of a grant or vesting (as per subs (2), (9), (9A) and (9C), and acts that consist of the construction or establishment of any public work (sub (7)). The applicant submits that the structure of ss 23B and 23C supports that construction that any acts that consist of the establishment of any public work engages sub 23B(7) and confirms extinguishment, and that that extinguishment is taken to have happened when construction began.
101 The Territory submits that sub 29(9C) operates such that a Crown to Crown grant is not a previous exclusive possession act: (a) unless at common law the vesting extinguishes native title; or (b) if at common law the vesting did not extinguish native title, unless and until the land or waters are used to any extent in a way that, at common law, extinguishes native title. By that construction, the words "apart from this Act" do not operate so as to exclude the validation effected by the NT Act.
102 The Territory says that such a construction fits with the intention of parliament, as expressed in the Supplementary Explanatory Memorandum to Government Amendments moved in July 1998 to the Native Title Act Amendment Bill (No 2) 1997 (Cth). Under the heading "Crown to Crown grants" the Memorandum provides:
The amendment also excludes from the definition of previous exclusive possession act an act that is the grant or vesting of an interest to or in the Crown or a statutory authority unless:
• at common law the grant or vesting extinguishes native title; or
• if at common law the grant or vesting did not extinguish native title, the land or waters are used in a way that, at common law, extinguishes native title.
In relation to the latter, the act only becomes a previous exclusive possession act when the land or waters are used in a way that at common law extinguishes native title. The use may take place before or after the date of the Wik decision, or before or after the provision commences operation.
The Government believes that the grant of a freehold or exclusive possession leasehold to another body politic or to a statutory authority does extinguish native title. Such grants should be treated in the same way as grants to a private person. They are more than the reservation of land for a future public purpose. However, this amendment leaves this issue to be finally determined by the common law. If at common law a Crown to Crown grant extinguished native title, the Bill confirms the extinguishment. If at common law, it is the use of the land granted or vested, and not the grant or vesting itself, that extinguishes native title, the Bill confirms that the native title is extinguished when the land is used.
Paragraph 23B(9C)(b) only deals with uses that result in the extinguishment of native title. Uses that are consistent with the continued existence of native title are not covered by the confirmation of extinguishment provisions but may be valid under Subdivision J (which deals with acts done pursuant to certain reservations and leases).
103 Accordingly, the Territory submits that the grant of freehold extinguished native title, irrespective of the fact that it was a Crown to Crown grant.
104 In Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 at [23] Lehane J held:
I am bound to conclude that… a grant of a fee simple estate to the Crown (or the acquisition by the Crown of such an estate) extinguishes native title to the same extent, and for the same reasons, as a similar grant to a private purpose does. In each case, the rights acquired by the holder of the estate in fee simple are equally inconsistent with the continued enjoyment of rights associated with native title.
In that case, a freehold grant to a local government body was held to extinguish any native title in relation to the area covered by the grant, notwithstanding that the grant was made on trust.
105 In the alternative, the Territory submits that the grants fall under sub 23B(9C)(b). Its construction of the subparagraph again calls into play a common law test, namely, where the grant does not extinguish native title at common law, it will nevertheless qualify as a previous exclusive possession act upon the land or water being used "to any extent" in a way that would extinguish native title at common law. Such use, they submit, does not require the use to be pursuant, or even related, to the grant. Despite the apparent conflict with the rights based assessment of inconsistency, the Territory submits that sub 23B(9C)(b) expressly demands an inquiry as to the extinguishing effect of use of land at common law; but that such an assessment in turn will prompt an examination of the rights or power pursuant to which the land is used, as land is used in assertion of rights and powers over it.
106 Accordingly, the Territory contends, as the uses of the land granted are wholly inconsistent with the continued exercise of native title rights, such uses must be pursuant to rights which would extinguish native title at common law, with the effect that the proviso in sub 23(9C)(b) is engaged. Thus, the construction of the Timber Creek power station and residential dwellings had no further or additional effect on native title, notwithstanding that they comprised the construction or establishment of public works within the meaning of sub 23B(7).
107 The Commonwealth supported the submissions of the applicant with respect to subs 23B(9C)(a), noting that that had been the subject of judicial consideration, and that on each occasion, the Court has proceeded on the basis that the words "apart from this Act" in s 23B(9C)(a) mean that the RDA must not have operated to invalidate the grant or vesting, such that native title would have been extinguished at common law: Ward HC [253]-[254] and [259]-[260], Wandarang People v Northern Territory (2000) 104 FCR 380 at [106] (Wandarang), Neowarra [2003] FCA 1402 [652].
108 The Commonwealth's submissions regarding sub 23B(9C)(b) on the other hand differ from both those of the applicant and the Northern Territory. As a starting point, the Commonwealth submits that the acts referred to the subclause (b) must be consequent upon the grant. They say this because (a) it is the grant itself that is converted as a result of the acts; (b) because the interests in relation to the land in sub 23B(9C) are grants of freehold or leases, and so the authority to use that land would usually derive from the grant itself; and (c) unless the authority for use of the land derives from a pre-23 December 1996 grant, an alternative reading would be to authorise the doing of future acts contrary to s 24AA(2) of the NT Act.
109 The next step in the Commonwealth's reasoning is that, if the validating effect of the NT Act is to be disregarded, then sub 23B(9C)(b) becomes redundant. To paraphrase: what act, stemming from a grant, could be valid where the grant itself is invalid. Given that subparagraph (b) is only enlivened when (a) is not met, such a construction does not appear to satisfy the intention of parliament. The construction it puts forward, as an alternative, is whether the use of the land is of a kind that would extinguish native title at common law.
110 It submits that this construction is supported by s 23DA which provides:
23DA Confirmation of validity of use of certain land held by Crown etc.
To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.
If "apart from this act" referred only to acts which were non-discriminatory under the RDA, then arguably, such clarification would not be required. The Commonwealth also highlights that such a provision was not enacted with regards to sub 23(9C)(a).
111 I turn to consider those respective submissions.
112 Subsection 23B(9C) provides that a Crown to Crown grant is not a previous exclusive possession act unless the conditions of sub 23B(9C)(a) or (b) are met.
113 I accept the applicant's submissions that the conditions of sub 23B(9C)(a) are not met in this case.
114 The meaning of sub 23B(9C)(a) was considered in Ward HC at [259]-[260] by the plurality as follows:
In the case of other reserves vested before 23 December 1996, reference must also be made to sub-s (9C) of s 23B. It provides:
If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:
(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or
(b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters unless and until the land or waters are (whether before or after
23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.
The expression "statutory authority"' (s 253) in relation to the Crown in right of the Commonwealth, a State or a Territory, means any authority or body (including a corporation sole) established by a law of the Commonwealth, the State or Territory other than a general law allowing incorporation as a company or body corporate. It follows that vesting a reserve in the Crown, or in a statutory authority, after the RDA commenced operation and before 23 December 1996, will, by par (a) of sub-s (9C), be a previous exclusive possession act only if the vesting would, apart from the NTA, extinguish native title and, for the reasons already given, vesting a reserve under the Land Act 1933 was valid and effective to extinguish native title.
(Emphasis added, references omitted).
115 This is further explained by Olney J in Wandarang People v Northern Territory (2000) 104 FCR 380 at [106]-[107]:
One of the elements of the definition of previous exclusive possession act is that the act must be valid (s 238(2)(a). Acts which took place before 1 January 1994 that were invalid because of native title have been validated, in the case of acts attributable to the Northern Territory, by s 4 of the Validation Act. However, for a grant to a statutory authority which would otherwise be a previous exclusive possession act to escape the effect of s 238(9c), it is necessary that apart from the Native Title Act, the grant would have extinguished native title. An act which but for the Act would be invalid because of native title does not fit this description; nor does the grant of a non-exclusive possession lease, albeit a lease which is a scheduled interest.
As CLP 346 was granted subsequent to the passing of the Racial Discrimination Act 1975 (Cth), but for the validating provisions of the Native Title Act and the Validation Act, it would not be valid. Further, it not being an exclusive possession lease, it would not, apart from any statutory provision, have the effect of extinguishing native title. The effect of s 238(9c) is to deny CLP 346 the status of a previous exclusive possession act. Accordingly s 23c has no application to CLP 346.
See also: Neowarra at [652].
116 The question whether s 23B(9C)(a) operates depends on whether, independently of the validating effect of the NT Act, the grant or vesting extinguished native title.
117 As both the applicant and the Commonwealth said, those authorities mean, in the present context, that because the RDA operated to invalidate each of those grants or vestings, they would not have extinguished native title. They may have been valid grants or vestings, because of the validating provisions of the NT Act or the NTV Act but they did not extinguish native title at common law.
118 The consequence is that s 23B(9C)(a) does not catch the grants and vestings, and so is not a subclause which prevents s 23B(9C) operating to prevent these acts from being previous exclusive possession acts.
119 It is also necessary to determine whether s 23(9C)(b) catches these acts so as to have that operation.
120 I also consider that the conditions prescribed in sub 23B(9C)(b) are not met. The operation of sub 23B(9C)(b) as noted by the plurality in Ward HC is troublesome as it refers to the potential extinguishment of native title "apart from this Act" by use, rather than right. Native title is extinguished by inconsistency of right or power, and not by use: see Ward HC at [78]. The Supplementary Explanatory Memorandum makes it clear that the drafters recognised that there was uncertainty as to whether Crown to Crown grants extinguish native title, and whether such extinguishment comes as a result of inconsistency of right or of use. It relevantly explains:
If at common law a Crown to Crown grant extinguished native title, the Bill confirms the extinguishment. If at common law, it is the use of the land granted or vested, and not the grant or vesting itself, that extinguishes native title, the Bill confirms that the native title is extinguished when the land is used.
That point has now been clarified in Ward HC and in Brown HC. Native title is not extinguished by inconsistency of use. This has the effect of rendering par (b) as inoperative, a finding consistent with the dicta in Ward HC quoted above, as well as the intention of parliament expressed through the Supplementary Explanatory Memorandum.
121 Accordingly, the Crown to Crown grants do not fall under the exceptions noted in subs (a) and (b) and are to be considered non-exclusive possession acts by virtue of s 23B(9C). Each grant was wholly inconsistent with the continued existence, enjoyment or exercise of native title, and under the non-extinguishment principle, the native title continued to exist in its entirety but the native title rights had no effect in relation to the grant (s 238(3)) and each therefore is compensable under ss 17(2) and 20. The later construction of public works on land covered by such a grant was a category A past act that suspended native title (ss 15(1)(b) and 229(4)) and a previous exclusive possession act in respect of which extinguishment has been confirmed (ss 23B(7) and 23C(2)) and is compensable under s 23J.