Indigenous Land and Sea Corporation v Anderson

Introduction

1. The plaintiff, the Indigenous Land and Sea Corporation (ILSC), is the registered proprietor of parcels of rural land in both NSW (Mogila) and in Queensland (Currawillinghi) (collectively, the lands). Prior to 1 February 2019, the ILSC was called the Indigenous Land Corporation (ILC). The ILC was established in 1995 under s 191A of the then Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act). By force of s 191A(1) of the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act), the ILSC is now so named but retains the identity of its predecessor entity, the ILC.
2. The first and second defendants (Mr Anderson and Ms Sapotnik-Eckford respectively) are married and currently occupy the lands (and collect agistment fees for its use) without the consent of the ILSC. Mr Anderson is also known as Ghillar and Michael Eckford. Mr Anderson and Ms Sapotnik-Eckford represented themselves in the proceeding. The ILSC was represented by Mr Sean Docker of counsel.
3. The ILSC claims possession of the lands, based on a claim that the defendants have wrongly affected its right as registered proprietor to possess the lands. Alternatively, the ILSC sought an injunction to restrain the defendants' continuing trespass. The ISLC seeks vacant possession of both Mogila and Currawillinghi in order to carry out assessments and work with a view to seeking expressions of interest from Indigenous people prior to making grants of the lands as authorised by s 191D of the ATSI Act.
4. By their defence dated 1 April 2021 and their amended defence dated 15 April 2021, the defendants oppose the relief sought on various grounds which will be addressed below. Essentially the defences are based on challenges to the validity of various steps taken by the ILSC (or the ILC) relating back to its first acquisition of Mogila and Currawillinghi and the lawfulness of various subsequent actions in relation to the land. The defences raise allegations of fraud and other claims.
5. Mr Anderson has filed a Cross-Claim by which he seeks judgment for the possession of Mogila and Currawillinghi and orders removing the ILSC from the land title registers in respect of the lands. The Cross-Claim raises issues of native title rights and interests in the lands as well as an asserted right based on adverse possession.
6. Before addressing the substantive issues in the proceeding, it is convenient to address Mr Anderson's challenge to the Court's jurisdiction, as well as refer to Mr Anderson's challenge to the ILSC's claim of privilege over certain documents.

The Court's jurisdiction challenged

1. By notice of motion filed in Court with leave on the first day of the hearing (26 September 2022), Mr Anderson challenged the Court's jurisdiction to determine the ILSC's application. Mr Anderson relied upon an affidavit dated 21 September 2022 by him, which was filed in Court with leave on 26 September 2022. Mr Anderson also relied upon parts of an earlier affidavit by him dated 5 July 2021, which was filed on 7 July 2021 (and refiled on 21 July 2021). The Court said that it would hear and determine the motion at the outset of the hearing and provide reasons for its decision in the final judgment. These are the reasons why the motion was dismissed, with an order that the costs of the motion be the plaintiff's costs in the cause (vis à vis Mr Anderson alone).
2. As noted above, Mr Anderson represented himself. He has considerable experience as a litigant in various proceedings in various courts, sometimes legally represented and sometimes representing himself. He also has a law degree and practised as a solicitor for several years. I understand, however, that he does not currently hold a practising certificate. He presented his challenge to the Court's jurisdiction (and his case generally) courteously and genuinely tried to assist the Court as best he could as a litigant in person.
3. Determination of Mr Anderson's challenge to the Court's jurisdiction in a manner favourably to him effectively requires him to demonstrate why s 23 of the Supreme Court Act 1970 (NSW) is displaced. That provision states that the Court "shall have all jurisdiction which may be necessary for the administration of justice in New South Wales".
4. Another important point to note at the outset is that, although Mr Anderson challenges the Court's jurisdiction on various grounds, he did not contest the ILSC's claim that s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) applied so as to empower the Court to exercise the original jurisdiction of the Supreme Court of Queensland to grant the relief sought by the ILSC in respect of the lands. Indeed in [1] of their defence filed on 1 April 2021 the first and second defendants gave their express concurrence to the ILSC's claim regarding jurisdiction under that Act.
5. It is convenient to set out the orders sought by Mr Anderson in his motion (without alteration): 1 That the originating process by the Indigenous Land and Sea Corporation be dismissed in accordance with the NSW Uniform Civil Procedure Rules, Rule 12.11, 1(g) 2 That the claim by the Indigenous Land and Sea Corporation be dismissed on the grounds that the Euahlayi/Yawaalaraay Nation falls within the definition of, Interpretation, 1 (b) of the Foreign States Immunities Act 1985. 3 Tat this court make a declaration that to proceed with the plaintiff's case without this court having the competency to adjudicate on Euahlayi laws and customary practices will prejudice the Défense of the First Defendant Michael Anderson and thus be in violation of section of the Commonwealth Racial Discrimination Act 1975. 4 That this court make a declaration that this case cannot proceed without engaging ceremonially educated Aboriginal Senior law men and women who hold the sacred celestial knowledge law and customs. 5 That the court make a declaration that the First named Defendant Michael Anderson's Nationality is Euahlayi/Yawaalaraay (hereinafter Euahlayi) Dthane (man) 6 That the court make a declaration that the first named defendant Michael Anderson (tribal birth name Ghillar) aka Michael Eckford (Registered Birth name) is the recognised Leader of the Euahlayi/Yawaalaraay Nation as recognised by the Foreign Sovereign Head of the Commonwealth of Australia, the late Queen Ngudthy 11, (for the purpose of observing Euahlayi law and customary practice. It a sign of respect not to name a deceased person) In regard to the recognition of the First Defendant See Cross Claim affidavit of Michael Anderson dated July 21, 2021, to Case No.2020/00363972 annexure C. 7 The Euahlayi/Yawaalaraay Nation does not submit to the jurisdiction of this court but are making this submission in accordance with section 10 (7) (b) of the Foreign States Immunities Act 1985. That is: Section 7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that: (a) it has made an application for costs; or (b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity. 8 That this court make a declaration that to proceed with this case number 2020/00363972 will violate section 10 of the Racial Discrimination Act 1975 on the grounds that the court fails in its ability to consider Euahlayi Laws and Customs because these laws and Customs belong to a Foreign Nation who have never been Conquered, ceded, nor acquiesced. 9 Further to this, I respectfully submit that this court does not have jurisdiction to consider the origins of Euahlayi/Yawaalaraay 'celestial law' that establishes the laws and Customary practises of the Bhurrah (Peoples) within the boundaries as they are and always will be independent clans' territories within that Euahlayi/Yawaalaraay boundary. This is a matter that falls within the same category as ecclesiastical law and does not fit within the scope of civil and common law jurisdiction.

(1) Foreign States Immunities Act

1. The Foreign States Immunities Act provides for a general immunity of a foreign State from the jurisdiction of Australian courts, except as provided by or under the Act.
2. There are several reasons why Mr Anderson's reliance upon this legislation is misconceived. First, there is the fact that Mr Anderson is a party to these proceedings in his personal capacity, being a person occupying the lands without the permission of the registered proprietor. The ILSC did not challenge Mr Anderson's claim to be the ceremonial Elder of the Ghurrie Clan and recognised ceremonial Elder and Leader of the Euahlayi Nation. The fact remains, however, that he is sued in his personal capacity. He personally does not qualify as a "foreign State" within the definition of that expression in s 3 of the Act, which means: … a country the territory of which is outside Australia, being a country that is: (a) an independent sovereign state; or (b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.
3. Even if it be assumed for the sake of argument that the relevant State is the Euahlayi Nation and not Mr Anderson personally, the territory to which that Nation relates is not territory which is "outside Australia" for the purposes of the definition of "foreign State" in s 3. The term "Australia" is defined in s 3 as: when used in a geographical sense, includes each of the external Territories.
4. There can be no question that the reference to "outside Australia" in the definition of "foreign State" is a reference to the country of Australia in a geographical sense. Thus, even though Mr Anderson asserts that the Euahlayi Nation has never been part of Australia in the sense of never having ceded its sovereignty, geographically speaking that Nation's territory is physically part of Australia.
5. Secondly, even if, contrary to the above, Mr Anderson could overcome these significant threshold obstacles to his reliance upon the Foreign States Immunities Act, the effect of s 14(1) of that Act is that a foreign State is not immune in a proceeding to the extent to which the proceeding concerns: (a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or (b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind.

(2) Pacific Islanders Protection legislation

1. As Mansfield J pointed out in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [54], this Imperial legislation was passed to protect the Indigenous peoples of the islands of the Pacific Ocean from kidnapping for the purposes of labour, a practice which is sometimes described as "blackbirding". The preamble to the 1872 legislation expressly refers to "natives of islands in the Pacific Ocean, not being in Her Majesty's Dominions" (emphasis added). Section 2 of that Act defined "Australasian Colonies" as including the colonies of New South Wales and Queensland. Those colonies were at the relevant time part of Her Majesty's Dominions.
2. The 1872 Act provided in s 3 that it was unlawful for British vessels to carry native labourers unless they had a licence granted, relevantly, by a governor of any of the Australasian Colonies.
3. The fact that the legislation was directed to islands and places in the Pacific Ocean not being within Her Majesty's Dominions is also made abundantly clear in s 6 of the 1875 Act. That provision empowered the making of Orders in Council to establish courts of justice with jurisdiction over Her Majesty's subjects in such islands and places and to impose penalties etc.
4. I respectfully agree with Mansfield J's conclusions and reasoning in Walker at [56] as to why this legislation does not apply to Indigenous Australians, including Mr Anderson and/or the Euahlayi Nation: On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean "not being within her Majesty's dominions". As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty's dominion, as had all the other colonies of Australia.
5. Similar reasoning was applied by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [70], with which I also respectfully agree.

(3) Sovereignty

1. Order 6 sought by Mr Anderson in his motion appeared to raise a claim that the Euahlayi Nation constituted a separate sovereign nation in relation to which the Court had no jurisdiction. This claim also appeared to be supported by parts of Mr Anderson's affidavit dated 21 September 2022, which included claims that "Sovereignty and Eminent Dominion over the said lands and waters of the Ghurriebhurrah are reserved to the ceremonial Elders" (at [12]) and that "the sovereignty of the Euahlayi/Yawaalaraay Nation continues and that we had Laws and Customs of our own" (at [19]).
2. In oral address, Mr Anderson relied upon a "Declaration" and a "Declaration of Independence", which documents appear to have been created on or around 1 July 2013. The Declaration states that the Euahlayi are the original peoples of the land and waters within certain defined territories identified in Sch 1 to the Declaration. The Declaration is signed by various persons. The Declaration of Independence, which is also signed by various persons, states that the "individual members of the Euahlayi State, representing each and all of our clans, are by virtue of our natural and historic inherrent (sic) right, resolve and declare the continuing sovereignty of the Euahlayi Nation, to be henceforth known as the 'Euahlayi Peoples Republic'".
3. Mr Anderson said that copies of both Declarations had been sent to Her Majesty. Mr Anderson did not tender a copy of the letter which he stated he received in reply from Buckingham Palace.
4. Notwithstanding these matters, and the fact that Mr Anderson also advanced arguments concerning the separate sovereignty of the Euahlayi people in his oral address in chief on the motion, in his oral address in reply Mr Anderson said that "… our argument is not about whether we're a - about sovereignty. We're not - that's not the argument here. The argument here is about whether the Court has the capacity to deal with Yuwaalaraay law and make a decision over the land and the people who belong to the land as to whether or not they are entitled to be on that land. That's the question here".
5. For completeness, however, I will now explain why the sovereignty arguments raised elsewhere by Mr Anderson must fail (as must also be his related reliance on s 10 of the Racial Discrimination Act 1975 (Cth)).
6. To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point: 43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held: The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain. 44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ: Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. 45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J: [t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law's protection as subjects of the Crown. ... Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. 46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia: Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are "a domestic dependent nation" entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. 47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]-[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]-[17] per Connolly J.

(4) Court's competence or capacity

1. As noted immediately above, in his oral address in reply, Mr Anderson identified his central argument as whether the Court has the capacity (or competency) to deal with the Euahlayi Nation's law. That matter is also raised in orders 3, 4, 8 and 9 of his motion, and are elaborated upon in various parts of his affidavit dated 21 September 2022. For example, in that affidavit he claimed that Euahlayi laws and customs are foreign to the English common law, are sui generis and the Court lacked jurisdiction to "define and concluded (sic) the rights and interests of the Ghurrie clan under Euahlayi Law and Customs which are at the heart of the first defendants (sic) Défense and Cross Claim" (without alteration). He submitted that these matters were "more likely to be found in ecclesiastical laws". He added that, because the Court could only adopt what he described as "a Eurocentric legal view of this case", this prejudiced the Ghurrie clan's rights and interests from being considered without apprehended bias.
2. It is well recognised that Australian courts may be confronted with particular difficulties when they need to address and determine traditional laws and customs relied upon by Aboriginal and Torres Strait Islander persons. For example, the practical and evidentiary difficulties of establishing the nature and incidents of both common law and statutory native title have long been acknowledged (see generally the discussion in Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (June 1986) [622]ff; Christos Mantziaris and David Martin, Native Title Corporations: A Legal and Anthropological Analysis (2000, The Federation Press) chs 1 and 2; Melissa Perry and Stephen Lloyd, Australian Native Title Law (2nd ed, 2018, LawBook Co) at [82.10]). But that does not mean that the Court lacks jurisdiction to hear and determine such matters, having regard to the laws of evidence (including any relevant statutory modifications).
3. In Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo (No 2)), when addressing a common law native title claim, Brennan J made clear that any such claim needed to be supported by admissible evidence. Thus, at 58 his Honour said: The nature and incidents of native title must be ascertained as a matter of fact by reference to those [traditional] laws and customs. His Honour then added that "it is necessary to ascertain by evidence the nature and incidents of native title" (emphasis added).

Conclusion to challenge on jurisdiction

1. For these reasons, Mr Anderson's motion was dismissed and it was ordered that the costs of the motion be the plaintiff's costs in the cause vis à vis the first defendant.

Mr Anderson's challenge to the plaintiff's claim of privilege over certain documents

1. On 23 September 2022, Mr Anderson filed a notice of motion by which he challenged the privilege claimed by the ILSC over letters and other correspondence between itself and the lawyers for the liquidator for Ngurampaa Ltd (Ngurampaa) (the role of which in these proceedings I will address further below), Mr Morgan Chubb of Clout & Associates, contained within Subpoena Packet S-4.
2. At the outset of the hearing on 26 September 2022 I indicated my intention to refer this motion to the Common Law Duty Judge. Neither party objected to that course.
3. During the course of the hearing before the duty judge, Cavanagh J, on 27 September 2022, the parties settled this matter and consent orders were entered by his Honour.
4. There was no order as to costs, and it was noted that the parties intended to pay their own costs as per the signed consent orders.

The substantive proceeding

1. The ILSC's claim for possession arises in the context of it wishing to perform some of its statutory functions. The ILSC's functions include to grant interests in land to Aboriginal or Torres Strait Islander Corporations and to acquire by agreement interests in land for the purpose of making such grants pursuant to ss 191C(a) and 191D of the ATSI Act (acquisition function).
2. The ILSC also has functions under ss 191C(b) and 191E of the ATSI Act inter alia to carry on or arrange for the carrying on of land management activities in relation to land held by the ILSC or under agreements with the holders of land under agreements with the ILSC (management function). Under s 191H(1) of the ATSI Act, the ILSC has a general power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions.

Pleadings

1. By its Statement of Claim (SOC) filed 23 December 2020, the ILSC claims possession of the lands because the defendants have wrongfully affected the ILSC's right as registered proprietor to possess the lands. Alternatively, the ILSC seeks an injunction to restrain the defendants' continuing trespass. The ILSC seeks vacant possession of Mogila and Currawillinghi in order to carry out assessments and work (including repairs) on them, seek expressions of interest from Indigenous people and then make grants of the lands as part of its divestment process.
2. The defendants filed two defences, on 1 April 2021 (Defence) and 15 April 2021 (Amended Defence), which are said to be cumulative. Neither document was in correct form and each was a narrative rather than a pleading. Moreover, both documents set out the terms of alleged conversations which were not supported by admissible evidence. The defendants: 1. admit the ILSC's title to Mogila and Currawillinghi (SOC [5]-[6]; Defence [25]-[26]), do not plead to the ILSC's entitlement to immediate and exclusive possession in SOC [7] and do not contest that they have occupied Mogila and Currawillinghi since at least 16 April 2019 (SOC [8]), being the date the ILSC became the registered proprietor of Mogila for a second time; 2. allege that the ILSC has no standing because it transferred the lands (to Ngurampaa (now deregistered)) pursuant to a Deed of Grant dated 27 January 2000 (Currawillinghi Deed) and thereby lost all its rights in the lands, despite the right to lodge a caveat being conferred by clause 5.2 of the Currawillinghi Deed: Defence [4], [18]-[20], [24]; Amended Defence [10]-[12]. It is also alleged that errors in the ILSC's caveat over Mogila, which refers to a Deed of Grant dated 22 June 1998 (Mogila Deed), void any equitable interest of the ILSC in Mogila: Amended Defence [26]-[34]; 3. allege that the grant of Mogila to Ngurampaa was void because it was procured by fraud and other misconduct and the traditional owners who signed for Ngurampaa were semi-literate and did not have independent legal advice or anyone explain the transaction to them: Defence at [6]-[21]; Amended Defence [14]-[24], [31]; 4. allege that the lands were purchased by the ILSC for the purpose of redress and compensation, the liquidator of Ngurampaa had no right to release the lands because the lands were not an asset of Ngurampaa's and so the ILSC has not proved its title (as the ILSC acquired lands from the liquidator of Ngurampaa): Defence [27]-[34]. It is also alleged that the transfer from the liquidator of Ngurampaa, Mr Chubb, to the ILSC was a contempt of the Supreme Court: Amended Defence at [36]-[43]; 5. allege that the claim for possession against a traditional owner is contrary to the ATSI Act: Amended Defence [2]-[9]; and 6. allege that it was necessary for the ILSC to obtain the approval of the Governor in Council under s 174 of the Land Act 1994 (Qld) for the transfer of Currawillinghi to it on 10 July 2019: Defence [26].

The parties' evidence summarised

1. Most of the relevant facts are established by documents which were included in the six volumes of the Court Book. At the Court's direction many documents were removed from the folders because they were not relied upon by any party.
2. It is desirable to summarise the relevant parts of the parties' affidavits. It should be noted that large parts of the defendants' affidavits were ruled inadmissible on various grounds, and the Court ruled that many paragraphs should be read as submissions only.
3. It should be made clear that the summary of the cross-examinations of the ILSC's witnesses are quite brief. That is because only limited reference was made to that part of the evidence in the defendants' closing addresses.

(a) Mr Trevor Edmond

1. Mr Edmond is the Group General Counsel of the ILSC, a position he has held since October 2018. Mr Edmond described the land titles relating to both Mogila and Currawillinghi. He also described how Mogila and Currawillinghi were acquired by the ILC and the subsequent grant of those lands to Ngurampaa on 22 June 1998 and 27 January 2000 respectively.
2. Mr Edmond described the winding up of Ngurampaa on 20 July 2015 and the appointment of Mr Chubb as liquidator. Mr Edmond also described how the lands in Mogila and Currawillinghi were transferred back to the ILC under a Deed of Settlement and Release dated 24 January 2019 between the ILC, Ngurampaa and Mr Chubb.
3. Mr Edmond described the role of Mogila Merino Stud Pty Ltd (Mogila Merino Stud), a wholly owned subsidiary of the ILC, in raising merino sheep on both Mogila and Currawillinghi, including the surrender of the lease of Currawillinghi by Mogila Merino Stud in September 2002 and the ILC's decision not to renew the leases to Mogila Merino Stud.
4. Mr Edmond described various dealings between the ILC (and its successor the ILSC) and the defendants concerning Mogila and Currawillinghi.
5. Mr Edmond was cross-examined by both Mr Anderson and Ms Sapotnik-Eckford. Parts of the cross-examination related to matters of which Mr Edmond had no personal knowledge and some other parts related to matters of law, not fact. Mr Edmond was cross-examined at some length regarding the dealings between the ILC and Ngurampaa, and the involvement of Lovett & Green solicitors in those dealings. Lovett & Green acted for Ngurampaa but their fees were paid by the ILC. These dealings occurred before Mr Edmond took up his position in 2018.
6. I accept Mr Edmond's evidence.

(b) Mr Christopher Martin

1. Mr Martin is an Operations Manager of the ILSC, a position he has held since 15 July 2019. He gave evidence regarding certain dealings he had with Mr Anderson. Those dealings included his involvement in handling complaints received from members of the local Indigenous community that Mr Anderson would not permit them to come onto the land at Currawillinghi. He also said that he had received a telephone call from sheep farmers (Mr Jack Johnston and Ms Michelle Johnston) who told him that they had an agistment agreement with Ngurampaa which allowed them to agist sheep on Currawillinghi.
2. There was a brief cross-examination of Mr Martin by Mr Anderson in which Mr Martin confirmed that he had volunteered to make an affidavit in the proceeding. Mr Martin was also briefly cross-examined by Ms Sapotnik-Eckford.
3. I accept Mr Martin's evidence.

(c) Mr Mark Denning

1. Mr Denning is the Eastern Division Manager of the ILSC, a position he has held since August 2018. Between 2010 and 2018 he was an Operations Manager of the ILC. Mr Denning gave evidence of various dealings he had with Mr Anderson regarding the divestment of Mogila and Currawillinghi. They included a telephone conversation they had on 6 February 2020 in which he told Mr Anderson that the ILSC had become the registered owner of the lands and that the ILSC would be happy to assist Mr Anderson to relocate from those lands. He deposed that Mr Anderson told him that he would not be leaving the properties because he held the "original title" to them.
2. Mr Denning described another telephone conversation he and Mr Martin had with Mr Anderson on 2 March 2020. Mr Denning also annexed to his affidavit copies of letters dated 5 August 2020 from the ILSC's solicitors to the defendants concerning the ILSC's offer to provide reasonable assistance so that Mr Anderson and Ms Sapotnik-Eckford could vacate the lands.
3. Mr Denning gave evidence regarding various complaints by members of the local Indigenous community in respect of Mr Anderson, including a claim that Mr Anderson was denying some Indigenous people access to the lands.
4. Mr Denning gave detailed evidence regarding the various steps taken by the ILSC in divesting a property to an Aboriginal or Torres Strait Islander Corporation, which he said was normally done in accordance with a process detailed in an internal manual called the "Operations Manual - Divestment Program".
5. Mr Denning was cross-examined at some length by both Mr Anderson and Ms Sapotnik-Eckford regarding the divestment process and the complaints regarding denial of access.
6. I accept Mr Denning's evidence.

(d) Mr Garry Cook

1. Mr Cook is a self-employed Farm Management Consultant. He formerly held the position of Executive Director - Agribusiness with the ILC, a position he held between March 2017 and July 2018. In the period 1999 to February 2017, Mr Cook was the Director - Business Operations and a General Manager of the ILC.
2. Mr Cook gave detailed evidence regarding his role between March 1999 and February 2017 in overseeing the management of various ILC agricultural businesses, including the business conducted by Mogila Merino Stud. He described how the infrastructure on both Mogila and Currawillinghi was "somewhat run down" and that the fencing, yards, homesteads and equipment on the lands did not appear to have been updated for at least ten years. He attributed this to the difficulties of the financial position of Mogila Merino Stud, which was affected by sustained drought and record low wool and sheep prices between 1998 and 2001. He deposed that he was aware of a loan from the ILC to the Mogila Merino Stud to fund the initial establishment of its business and to acquire livestock and machinery. He said that he was not aware of any loan between Mogila Merino Stud and Ngurampaa. Mr Cook also gave evidence of his involvement in discussions between the ILC, Mogila Merino Stud and Ngurampaa in early 2002 regarding the option of renewing the leases to Mogila Merino Stud.
3. Mr Cook was cross-examined at some length by Mr Anderson, and also more briefly by Ms Sapotnik-Eckford. It is unnecessary to summarise the cross-examination because none of it was relied upon by the defendants in their closing addresses.
4. I accept Mr Cook's evidence.

The defendants' affidavits

1. The defendants relied upon the following affidavits in the substantive proceeding: 1. affidavits by Mr Anderson dated 5 July 2021, 19 October 2021, 27 October 2021 and 21 September 2022; 2. affidavits by Ms Sapotnik-Eckford dated 30 May 2021, 27 October 2021 and an undated affidavit filed on 23 September 2022; 3. an affidavit dated 20 September 2021 by Mr Jamie Cubby; 4. an affidavit dated 22 September 2021 by Mr Raymond Cubby; 5. an affidavit dated 27 September 2021 by Mr Leon Winters; 6. an affidavit dated 11 October 2021 by Ms Roslyn Forrester; and 7. an affidavit dated 27 October 2021 by Ms Eleanor Mary Williams-Gilbert.
2. Large parts of the affidavits of Mr Anderson and Ms Sapotnik-Eckford in particular were ruled to be either inadmissible or only to be read as submissions. It is unnecessary to repeat those rulings as they are set out in the transcript. I have taken those rulings into account in summarising the defendants' affidavits.

(a) Mr Anderson's evidence summarised

1. In his first affidavit (dated 5 July 2021) Mr Anderson described his ancestry. He is the great great grandson of Sarah Eckford, who is the bloodline sister of King Tyson of Currawillinghi. He described how as a child he was taken by his grandmother to Mogila, where he spent time playing, fishing and hunting. He gave unchallenged evidence that he is accepted and recognised as the leader of the Ghurrie clan and the Euahlayi Nation. He is also the ceremonial Elder who has responsibility for providing guidance to the Euahlayi Nation of the rules associated with customary practices.
2. Mr Anderson described Mogila and Currawillinghi as part of the ancient homelands of the Ghurrie clan of the Euahlayi Nation.
3. He described his involvement in the signing of a Declaration of Independence by the Euahlayi Nation.
4. In his second affidavit (dated 19 October 2021 and which is evidence in reply on Mr Anderson's Cross-Claim), Mr Anderson described the composition of the Euahlayi Nation, which is divided into four skin groups. He also described at some length the laws and customs of the Euahlayi Nation.
5. Mr Anderson said that his Cross-Claim was based upon he and the Ghurrie skin group having "an inherit right of possession through a pre-existing right of Eminent Domain, which is vested in the Elders in accordance with the ancient rule which is that the lands are held in title by skin group leaders for the present and future skin group members as constituted by bloodline descent" (without alteration).
6. In support of his claim that there were pre-existing equitable rights which were not defeated by the registered proprietorship of ILSC Mr Anderson explained that the equitable interests the subject of the Cross-Claim are based on two matters which he described as follows: 1. the pre-existing inherited rights to the lands of the Traditional Owners under their laws and customs; and 2. "the material facts evidence the Traditional Owner's efforts to improve the land thereby increasing the values of [Mogila and Currawillinghi]".
7. The bulk of Mr Anderson's second affidavit was treated as submissions only.
8. Mr Anderson's third affidavit is dated 27 October 2021. Mr Anderson again described himself as the leader of the Euahlayi Nation. He described his childhood and upbringing, including the steps leading up to him being a Senior Lawman and Elder of the Euahlayi Nation. He described how he was one of a small group of Indigenous persons who established the Aboriginal Tent Embassy in Canberra in early 1972. He also described various senior Government appointments held by him from 1973 onwards, including his role as Special Envoy and personal advisor to Prime Minister Whitlam on human rights in respect of Aboriginal Peoples.

(b) Ms Sapotnik-Eckford's evidence summarised

1. In her second affidavit (dated 27 October 2021), Ms Sapotnik-Eckford described how, since 2003, she and Mr Anderson managed Mogila and Currawillinghi. Ms Sapotnik-Eckford also gave evidence regarding the complaints received by ILSC concerning access to the lands.
2. Ms Sapotnik-Eckford gave extensive evidence regarding the state and condition of the two properties. This evidence was admitted subject to relevance, while other parts of the second affidavit were admitted as submissions only.
3. Ms Sapotnik-Eckford provided two other affidavits (one dated 30 May 2021 and the other undated but filed on 23 September 2022). Large parts of these affidavits were treated as submission only or admitted subject to relevance. The first affidavit was largely in the nature of a chronology. In the third affidavit, Ms Sapotnik-Eckford described the work which she and Mr Anderson carried out at Currawillinghi since September 2002. She said the house "was in a devastating state". She also described the repairs and maintenance carried out at the Mogila homestead, as well as other improvements to the shearing shed, border and internal fences, dams and the bore.
4. Ms Sapotnik-Eckford provided extracts from financial statements from Ngurampaa between the period 2003 and 2014, which showed the money spent by Ngurampaa on repairs and improvements during the relevant years.
5. Ms Sapotnik-Eckford was not cross-examined.
6. There is no reason to doubt Ms Sapotnik-Eckford's sincerity or the truthfulness of her admissible evidence. The difficulty remains, however, in seeing how much of her evidence was relevant to the issues for determination.

(c) The evidence of the defendants' other witnesses summarised

1. None of the other witnesses called by the defendants was required for cross-examination. Their relevant evidence may be summarised as follows.
2. Mr Jamie Cubby is a station hand and stockman. He is Indigenous. He said that over the last 20 years he had done voluntary work on Mogila with Mr Anderson, mustering sheep, cattle and goats. He said that he brings his family to Mogila and Currawillinghi for recreation, fishing, yabbying and hunting usually a couple of times a week. He said that he was not aware of Mr Anderson denying anyone access to Mogila to collect firewood if they asked for permission.
3. Mr Raymond Cubby is an Indigenous Elder. He has known Mr Anderson for many years. He is Mr Jamie Cubby's uncle. He said that the ILC bought Mogila and Currawillinghi in 1998 and that he was "present at the handover and the signing of the Deed of Grant" (which I assume refers to the Mogila Deed and I also note that neither Mogila nor Currawillinghi were bought by the ILC in 1998). He said that to the best of his knowledge and belief he could not recall any independent practising lawyers present "at that time" explaining to the Traditional Owners explaining what was in the Deed of Grant (which again I assume is a reference to the Mogila Deed).
4. Mr Leon Winters is an Indigenous man. He gave evidence of traditional ceremonies being carried out on Mogila. He described Mr Anderson as the Senior Lawman for teachings about customary laws because he is the holder of "Euahlayi Law and Customary Practice". He also referred to the native title claim concerning Currawillinghi and Mr Anderson's key role in that proceeding.
5. Ms Roslyn Forrester is a Traditional Owner of Mogila and Currawillinghi. She was the elected President of Ngurampaa for more than four years from 27 May 2002. She described her involvement in a document entitled "Unconditional Grant of Chattels" between Mogila Merino Stud and Ngurampaa but she said that she did not see the list of chattels before signing the document on 27 May 2002. Ms Forrester also stated that she had never witnessed Mr Anderson refuse access to Mogila and Currawillinghi whenever Indigenous persons wished to access the properties to celebrate their "cultural well-beings".
6. Ms Eleanor Williams-Gilbert described herself as a filmmaker, researcher and ecologist. Over 19 years she has spent extended periods of time on both Mogila and Currawillinghi. She annexed to her affidavit numerous photographs which she had taken to capture how various skin groups of the Euahlayi Nation enhance Mogila and Currawillinghi in diverse ways. She also attached photographs of various scarred trees and other cultural icons on Mogila. Numerous other photographs annexed to Ms Williams-Gilbert's affidavit demonstrated the presence of many Euahlayi cultural or sacred sites in or near Mogila.

The location of Mogila and Currawillinghi

1. The ILSC is the registered proprietor of: 1. Mogila, which consists of 20 different titles which are identified in a Schedule to the SOC. 6 of those titles are held in fee simple, 13 of the titles are perpetual leases for pastoral purposes under the Western Lands Act 1901 (NSW) and the remaining lease is a perpetual conditional lease under the Crown Lands Act 1884 (NSW) and the Crown Lands Consolidation Act 1913 (NSW). 2. Currawillinghi, which consists of one parcel of land known as Lot 7 in Crown Plan BLM458, which is held in fee simple.
2. Attached as Annexures A, B and C respectively to these reasons for judgment are: 1. an ILSC map which identifies 19 of the 20 parcels at Mogila; 2. a copy of a map which displays the single parcel of land known as Currawillinghi. As noted above, Currawillinghi forms part of a much wider area of land the subject of the native title consent determination made on 22 November 2021 (Lot 7, being Currawillinghi, is marked in blue); and 3. an aerial photograph of the two properties.

A history of the relevant dealings affecting Mogila and Currawillinghi

1. On 11 September 1996, the ILC resolved to purchase Mogila and Currawillinghi.
2. On 27 June 1997, the transfer of Mogila from Mogila Pty Ltd to the ILC for $3,050,000 was executed and registered following completion of a contract for sale.
3. On 28 June 1997, the ILC entered into a lease and a sub-leasein respect of Mogila with Mogila Merino Stud for a 5 year term. The ILC agreed to advance to Mogila Merino Stud $1,319,200 to purchase plant, equipment and livestock.
4. On 26 May 1998, Ngurampaa was registered as an unlisted Australian public company limited by guarantee under the Corporations Act 2001 (Cth). Under its Articles of Association, there were two classes of members of Ngurampaa. Resident Members had voting rights and could be elected as Board Members. Non-resident Members did not have voting rights and could not be elected as Board Members. Both classes were required to be descendants of the Yuwaalaraay/Yuwaaliyaay Traditional Owners of Mogila and Currawillinghi. As all members of Ngurampaa were Aboriginal persons, it was an "Aboriginal or Torres Strait Islander corporation" within the definition in that term in s 4 of the ATSI Act. Mr Allan Lamb and Ms Patricia Cubby were among the original directors of Ngurampaa.
5. The objects of Ngurampaa were (a) obtaining and holding title to land on behalf of its members; (b) providing economic, environmental, social and cultural benefits to its members; and (c) supporting the maintenance of the culture of the Aboriginal community of Goodooga and Ngurampaa's members, their health and welfare, education, employment and training. The income and property of Ngurampaa had to be applied solely towards the promotion of its objects.
6. From at least 27 May 1998, Ngurampaa had solicitors advising it on its negotiations with the ILC (Lovett & Green). The ILC paid Lovett & Green's legal fees in relation to the dealings. In a letter dated 27 May 1998, Lovett & Green wrote to the Australian Government Solicitor (who acted for the ILC) and indicated that solicitors from Lovett & Green proposed to set aside a day to travel to Goodooga and to meet with Ngurampaa members and other community members with a view to relevant documents being executed on that day "after explaining the terms of the documentation and obtaining instructions thereon". As noted above, the defendants allege that the grant of Mogila to Ngurampaa is void having been procured by fraud because no one explained the transaction to the Traditional Owners.

Deeds and caveats concerning the lands

1. The Mogila Deed and the Currawillinghi Deed each included clauses to the following effect. 1. The ILC agreed to transfer the lands to Ngurampaa subject to (a) Aboriginal persons continuing to have a controlling interest in Ngurampaa; (b) Ngurampaa complying with the terms of each Deed; and (c) no order being made for the winding up of Ngurampaa: cll 2.1-2.2 of both Deeds. 2. If any of these events occurred, Ngurampaa was required to transfer the lands back to the ILC upon request: cl 2.3 of both Deeds. 3. Ngurampaa's title was subject to a lease in favour of Mogila Merino Stud: cll 3.1-3.4 of the Mogila Deed; cl 5.3 of the Currawillinghi Deed. 4. Restrictions on the use of the lands, including that Ngurampaa must apply the lands solely towards the promotion of its objects for the benefit of its members and it may not dispose of or deal with its interest without the consent of the ILC: cll 5.1-5.5 of the Mogila Deed; cl 3.1 of the Currawillinghi Deed. 5. Ngurampaa may dispose of its interest in the lands in accordance with s 191T of the ATSIC Act by surrendering that interest to the ILC on terms and conditions as agreed between Ngurampaa and the ILC: cl 6.1 of the Mogila Deed; cl 4.1 of the Currawillinghi Deed. 6. Ngurampaa charged the lands in favour of the ILC as security for its obligations under each Deed and agreed to the ILC lodging a caveat to protect the charge: cll 7.1-7.2 of the Mogila Deed; cll 5.1-5.2 of the Currawillinghi Deed.
2. On 10 July 2000, the ILC lodged a caveat on the title of Mogila.
3. On 11 August 2000, the ILC registered a caveat on the title of Currawillinghi.
4. Both caveats were consented to by Ngurampaa. In respect of the Currawillinghi caveat, Ngurampaa's consent was signed by Ms Cubby and Ms Jennifer Gibbs and is dated 12 January 2000. This is the day on which two solicitors from Lovett & Green travelled to Goodooga.
5. On page 2 of the Mogila caveat, the basis for the caveat is stated to be an "equitable right in the Land". The caveat then records the caveator's right to obtain an injunction to enforce the provisions of both s 191S of the ATSIC Act and cl 7.1 of the Mogila Deed. Reference is also made to the caveator's rights under cl 7.2 of the Mogila Deed and its right to secure performance of the obligations referred to in cl 4 of the Mogila Deed. The reason why the ILC merely held an equitable interest in the land at this time is because the transfer was still to be registered, noting the delay in obtaining consent from the Western Lands Commissioner. Ms Cubby and Ms Jennifer Gibbs signed Ngurampaa's written consent to the Mogila caveat. I will return to this issue below.

Further leases

1. On 4 May 2002, Ngurampaa notified the ILC that it would not be renewing the leases of Mogila and Currawillinghi to Mogila Merino Stud (which leases expired on 27 June 2002).
2. On 27 September 2002, Mogila Merino Stud surrendered its lease of Currawillinghi and Mogila Merino Stud entered into a deed with Ngurampaa to grant plant, equipment and livestock to Ngurampaa.
3. On 20 December 2002, Ngurampaa entered into a lease with Theodore and Alice Bradstreet over part of Mogila for a 6 year term commencing on 1 October 2002 (the lease was registered on or about 24 February 2004 with the ILC's consent).
4. On 14 March 2003, Ngurampaa entered into a sub-lease with Theodore and Alice Bradstreet over the remaining part of Mogila for a 6 year term commencing 1 October 2002 (the lease was registered on 12 February 2004 with the ILC's consent).
5. It appears the leases terminated early in around 2005.

Winding up of Ngurampaa in liquidation

1. On 20 July 2015, Ngurampaa was wound up in liquidation by an order of this Court on the application of the Deputy Commissioner of Taxation. Mr Chubb was appointed as its liquidator. Both defendants, along with Ms Pamela Touma, were directors of Ngurampaa when it was wound up. Mr Anderson had been a director since 21 August 2001 and Ms Sapotnik-Eckford since 9 November 2009.
2. Previously, on 22 May 2015, after receiving notice of the application to wind up Ngurampaa, the ILC wrote to Mr Anderson on behalf of Ngurampaa and demanded that Mogila and Currawillinghi be transferred back to the ILC. On 23 May 2015, Mr Anderson refused to comply with the demand, referred to ongoing litigation with Brewarrina Shire Council concerning rates that was apparently being litigated and stated that Ngurampaa intended to defend the tax matter as the value of the two properties exceeded any debt to the Australian Taxation Office.

Registration of transfers of the lands back to ILSC

1. On 24 July 2015, the ILC sought the re-transfer to it of Mogila and Currawillinghi from the liquidator . Initially, the liquidator refused to transfer the properties back to the ILC. Negotiations continued until 24 January 2019, when a Deed of Settlement and Release between the ILC, Ngurampaa and Mr Chubb was entered into. Pursuant to cl 3.2, Ngurampaa was required on the Completion Date to transfer Mogila and Currawillinghi to the ILC in return for $200,000. The ILC also acknowledged that the land was charged with outstanding rates. In recital E, the parties agreed that the transfers of the land constituted a surrender under s 191T(2) of the ATSI Act. It will be necessary to elaborate on these matters in due course.
2. The transfers of Mogila and Currawillinghi from Ngurampaa to the ILSC were executed on 16 April 2019 and 10 April 2019 respectively. Those transfers were registered on 20 November 2019 and 10 July 2019 respectively.

Agistment at Currawillinghi

1. In June 2021, Mr and Ms Johnston informed Mr Martin of the ILSC that they had a verbal agreement with Ngurampaa to agist their sheep on Currawillinghi until it went into liquidation. Ms Johnston said this arrangement continued with the liquidator of Ngurampaa until it "was wound up", which probably means until it was deregistered because it was being wound up when the liquidator was appointed. They have since had agistment agreements with Ghurrie AG Pty Ltd, a corporation owned by Mr Anderson and managed by Ms Sapotnik-Eckford which was deregistered on 1 February 2021. Since then, the agistment fees have been paid to Ms Sapotnik-Eckford directly.

Native title rights recognised over Currawillinghi

1. On 23 January 2017, Mr Timothy Knox and others, including Mr Anderson, on behalf of the Yuwaalaraay/Euahlayi People filed an application in the Federal Court of Australia for a determination of native title over land in Queensland which included Currawillinghi but did not include Mogila (which is in NSW), being proceeding number QUD32/2017 (NT Claim). The NT Claim was registered in the National Native Title Tribunal on 5 May 2017. Land that is or has been covered by a freehold title was excluded from the NT Claim but land referred to in s 47A of the Native Title Act is not excluded: [1] and [5] in description of area. The rights claimed in the NT Claim included the right to possess, occupy, use and enjoy the land and waters covered by the application (including where s 47A applies) to the exclusion of all others or, alternatively, where a claim to exclusive possession cannot be recognised, non-exclusive rights: [1]-[2] in rights and interests. I will return below to discuss s 47A.
2. As noted above, on 22 November 2021, a consent determination of native title was made in respect of the NT Claim (see Knox). Currawillinghi is included in Part 1 - Exclusive Areas of Schedule 4 - Description of the Determination Area of the determination with a notation that s 47A of the Native Title Act applies to it (as to which, see [228]ff below).
3. After this Court raised with the parties whether notice of the present proceeding had been given to the prescribed body corporate (Yuwaalaraay Euahlayi Aboriginal Corporation (YEAC)), the ILSC's instructing solicitors sent a letter dated 26 September 2022 to the lawyers for YEAC. By an email dated 28 September 2022, the YEAC's solicitor responded by saying that their client did not wish to be heard or be joined as a party to the present proceeding.

The ILSC's demands to the defendants to vacate and commencement of proceedings

1. On 5 August 2020, Thomson Geer on behalf of the ILSC sent letters to both Mr Anderson and Ms Sapotnik-Eckford demanding vacant possession of Mogila and Currawillinghi within 28 days, offering relocation assistance and foreshadowing an action for ejectment. On 23 and 24 August 2020 respectively, Ms Sapotnik-Eckford and Mr Anderson declined to vacate, citing Mr Anderson's status as a traditional owner and Ms Sapotnik-Eckford's status as his wife and her life interest and lifelong right to reside at Mogila and Currawillinghi. Further email communications passed between Mr Edmond of the ILSC and Mr Anderson on 25 November 2020.
2. On 23 December 2020, the ILSC commenced the present proceedings.

Consideration and determination

1. In order to avoid adding unduly to the length of these reasons for judgment, I will address the parties' primary submissions in this section.
2. Significantly, the ILSC is the registered proprietor in respect of both Mogila and Currawillinghi. Accordingly, subject to some narrow exceptions, it has the benefits of indefeasibility of title under the Torrens title regime in both NSW and Queensland. With great respect to them both, notwithstanding that the Court raised several times during the course of the hearing the significance of indefeasibility, the defendants appeared not to understand the hurdle which that doctrine presented for their case.
3. It is desirable to outline some relevant matters concerning indefeasibility before turning to address the ILSC's claims for possession in respect of Mogila and Currawillinghi.

Indefeasibility of title of a registered proprietor

1. As has been emphasised, the ILSC is the registered proprietor of the lands. Such registration confers on the registered proprietor an indefeasible title to the relevant land. As was stated in Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 613, indefeasibility is the "foundation of the Torrens system of title". The point is reflected in the terms of s 42(1) of the Real Property Act 1900 (NSW) (to similar effect see s 184 of the Land Title Act 1994 (Qld)): 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except-- (a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land, (a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act, (b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land, (c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and (d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected-- Provided that-- (i) The term for which the tenancy was created does not exceed three years, and (ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years. …

The ILSC's claims for possession

1. The ILSC conducted its case on the basis that the Court should apply the substantive law of NSW and Queensland respectively in relation to its possession claims for Mogila and Currawillinghi.
2. There appears to be little substantive difference between these States in these matters. By ss 20 and 92 of the Civil Procedure Act 2005 (NSW), the common law action of ejectment has been replaced by proceedings for possession of land and a judgment for possession of land has the same effect as was formerly had by judgment for the claimant in ejectment. Section 20 of the Civil Procedure Act provides: A claim for judgment for possession of land takes the place of a claim in an action for ejectment that could have been brought under the practice of the Supreme Court as it was immediately before 1 July 1972.
3. Section 92 provides: Judgment for possession of land takes the place of, and, subject to the uniform rules, has the same effect as, a judgment for the claimant in ejectment given under the practice of the Supreme Court as it was immediately before 1 July 1972.
4. Similarly, in Queensland, a claim for possession of land is no different from the historical action for ejectment. It constitutes an action for recovery of land and includes a right to enter into possession of land (see ss 5(5) and 13 of the Limitation of Actions Act 1974 (Qld) and Eckford v Stanbroke Pastoral Co Pty Ltd [2012] 2 Qd R 324; [2012] QSC 48 at [11]-[13] and [29] per Dalton J).
5. The history of the action for ejectment as well as its modification by statutes such as the Common Law Procedure Acts of 1899-1957 pursuant to which it was commenced by writ was described in Commonwealth v Anderson (1960) 105 CLR 303 at 311-313 by Dixon CJ (with whom McTiernan and Fullagar JJ agreed) and at 318-325 per Windeyer J. In summary, the statutory action of ejectment is a remedy given to the subject to eject the person in possession without the title to remain in possession: Commonwealth v Anderson at 312-313 per Dixon CJ and at 324-325 per Windeyer J.
6. The essence of a claim for possession is that the plaintiff must establish a right to possession. It is normally sufficient for the registered proprietor to prove title to an estate in fee simple.
7. In Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58 at [43], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (footnotes omitted): … An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land" and confers "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination". It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.

The ILSC's claim for possession concerning Mogila

1. Having regard to the caselaw outlined above and subject to considering the various claims raised in defence, there seems little or no doubt that the ILSC is entitled to possession of the 6 freehold titles on Mogila because it has a registered estate in fee simple. It is necessary, however, to determine whether the ILSC has rights of exclusive possession in relation to the remaining 14 titles which make up Mogila.
2. As noted above, there are 13 leasehold titles arising out of the grant of perpetual leases for pastoral purposes and one perpetual conditional lease. In Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29 at [21] per Gleeson CJ, at [116] per Gaudron, Gummow and Hayne JJ and at [205] per Callinan J (with whom McHugh J agreed at [124]), the High Court determined that a perpetual lease for grazing purposes granted under the Western Lands Act conferred a right of exclusive possession. This strongly suggests that, in respect of Mogila, the 13 perpetual leasehold titles also confer a right of exclusive possession to the ILSC (see further [280]-[290] below).
3. The perpetual conditional lease granted under the Crown Lands Consolidation Act is a Scheduled interest under s 249C of the Native Title Act (see s 3(5) of Sch 1 of that Act). A Scheduled interest is a "previous exclusive possession act" under s 23B(2)(c)(i) of the Native Title Act. It follows that this is an additional reason why this lease confers on the ILSC a right of exclusive possession.
4. Subject to the defences raised by the defendants, as the ILSC has a right of exclusive possession over all of Mogila, its title is sufficient to support a claim for possession.
5. I shall now address each of those defences in turn and explain why none displaces or prevents the ILSC's claim for possession concerning Mogila (and noting that some of these defences are also raised in relation to Currawillinghi but, for convenience and economy, are addressed together in this section).

Adverse possession

1. It appears that the defendants claim that they have had adverse possession of the lands for a period of 12 years or more. This claim forms part of the basis of the Cross-Claim, as to which see [291]ff below.

The ILSC's standing and claimed errors in the Mogila caveat

1. The defendants make two submissions in respect of the Mogila caveat. The first is that the ILSC lost all rights in the lands when they were transferred to Ngurampaa. That submission is unsustainable, having regard to the clauses in the Mogila and Currawillinghi Deeds, which conferred upon the ILC the right to request Ngurampaa to transfer the lands back to it in the event of a breach of one of the clauses in the Deeds, including where Ngurampaa was wound up (see at [126] above).
2. The defendants' second submission is the ILSC's equitable interest in Mogila was voided because of errors in the ILSC's caveat over Mogila. This turns on a claim that the reference in the caveat to the caveator's right to obtain an injunction to enforce the provisions of s 191S of the ATSIC Act is in error because the defendants claim that there is no such statutory provision. The defendants also claim that there is an additional error in that part of the caveat instrument which identifies the facts giving rise to the claimed equitable interest in the land. They contend that the reference there to the "Deed of Grant of Interest in Land" dated 22 June 1999 is in error because there is no such Deed bearing that date. Accordingly, the defendants contend that the caveat contained false and misleading information which negates any claim by the ILSC to have had an equitable interest in Mogila. They claim that the misinformation and misleading information was designed to procure the signatures of Ngurampaa's representatives and was done in bad faith. It appears that these latter claims were intended to form part of the defendants' broad claims of fraud.
3. The defendants' claim that s 191S of the ATSIC Act did not exist is simply incorrect. The error may have occurred because of their failure to review a copy of the ATSIC Act at the relevant point in time, being mid-1998. At that time s 191S formed part of Div 4 of Pt 4A. This division addressed dealings in land granted by the ILC. Section 191S operated to impose restrictions on the right of a body corporate to dispose of, or charge, property it had acquired from the ILC in circumstances specified in s 191S(1). In particular, s 191S(2) provided that the body corporate must not, without the consent of the ILC, dispose of the interest or give a charge with respect to an asset of the body corporate that consists of, or includes, the interest. Moreover, s 191T of the ATSIC Act provided at that time that the body corporate which had acquired an interest in land from the ILC in the circumstances described therein could dispose of the interest to the ILC (see s 191T(2)).

Allegations of fraud, including lack of independent legal advice

1. The defendants' allegation of fraud relating to the original grant of Mogila to Ngurampaa and subsequent dealings with the liquidator, which they say void the dealings, appears to be based on the following matters (in addition to those already addressed, and noting that many of these matters are also relied upon in the defendants' challenge to the dealings concerning Currawillinghi): 1. Alleged misinformation in the Mogila caveat. 2. The Ngurampaa directors were not given independent legal advice before they executed the Mogila and Currawillinghi Deeds. 3. Alleged fraud on the part of the liquidator. 4. The fact that the Deed of Settlement and Release dated 24 January 2019 (between Ngurampaa, the ILC and Mr Chubb) contained an indemnity in cl 9. 5. The ILSC tried to conceal the making of the "deal" (which presumably is a reference to the Deed of Settlement and Release) by its claim of privilege in the present proceeding (see [46]ff above). 6. The ILSC made a "deal" with the liquidator to re-transfer the lands at a total cost of approximately $400,000 in order to avoid a court case with the Traditional Owners so as to deprive the Traditional Owners of their legal rights. 7. The ILSC was responsible for the liquidation of Ngurampaa. 8. Various claims of "unconscionable" conduct.
2. In addressing the defendants' allegation that there was actual fraud because the Ngurampaa directors were not given independent legal advice, it is important to bear in mind that the defendants carry the onus of establishing such a serious allegation, which is to be assessed according to the standard in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (see also s 140 of the Evidence Act 1995 (NSW)).

Alleged misinformation in the Mogila caveat

1. This claim must be rejected for the reasons given at [172] to [175] above.

Allegation that no independent legal advice was given to Ngurampaa

1. The defendants' claim that Ngurampaa did not obtain independent legal advice prior to executing the Mogila and Currawillinghi Deeds and consenting to the caveats must be rejected. As noted above, the law firm Lovett & Green acted for Ngurampaa in relation to these matters, with the ILC paying the legal fees. Lovett & Green were retained to advise Ngurampaa from at least 27 May 1998 (see at [118] above). Moreover, the letter dated 27 May 1998 from Lovett & Green records that solicitors from the firm proposed to travel to Goodooga shortly thereafter to meet with Ngurampaa and other community members and that relevant documents could be executed "after explaining the terms of the documentation and obtaining instructions thereon". There is no reason to doubt the accuracy of that statement which is supported by the fact that the Mogila Deed was executed within a month of the date of that letter. The Mogila caveat was signed on behalf of Ngurampaa by Ms Cubby and Ms Jennifer Gibbs and the statutory declaration accompanying the caveat was signed by Mr McKay of Lovett & Green.
2. Other correspondence in evidence indicates that Lovett & Green provided advice on several occasions. For example, the letter dated 23 May 2000 records a number of matters having been dealt with in the firm's visit to Goodooga on 12 January 2000. Having regard to the considerable distance between the town of Warren where Lovett & Green were located and Goodooga it is also reasonable to assume that legal advice was provided over the telephone. It is also evident that the firm generated considerable fees in advising on the dealings relating to Mogila, which presumably reflects the legal work performed (see, for example, the firm's letters dated 27 May 1998, 29 May 2000 and 7June 2000 ).
3. The defendants have adduced no evidence to substantiate their claim that there was only one face to face meeting with the Traditional Owners (when signatures were obtained). Mr Raymond Cubby's evidence falls short of substantiating that claim. He simply said that, to the best of his knowledge and belief, he could not recall any independent practising lawyers present to explain to the Traditional Owners what was in the Mogila Deed (see at [106] above). Similarly, Ms Forrester's evidence did not address the circumstances surrounding the Mogila Deed of Grant or Mogila caveat. Rather, her evidence was directed to events which occurred in or about May 2002. Her affidavit was silent on any legal advice she obtained at that time.

Alleged fraud on the part of the liquidator

1. For reasons explained at [197]ff below, there is nothing to support this very serious allegation against the liquidator, bearing also in mind that he was not joined as a party to the proceeding and has been given no opportunity to defend himself against such serious allegations, giving rise to fundamental procedural fairness requirements.

The indemnity clause in the Deed of Settlement and Release

1. The indemnity clause in the Deed of Settlement and Release (cl 9) is in the nature of a boilerplate provision, whereby the ILC agreed to indemnify both Ngurampaa and the liquidator from all claims giving rise to a liability against either of them by the Traditional Owners relating to the payment of the settlement amount and transfer back of the land, as required by cl 3 of that Deed. The defendants submitted that the inclusion of such an indemnity provision (which would apply in respect of any claims made by Mr Anderson himself, having been specifically named as a member of the "Traditional Owners" in cl 1.1 of the Deed) was "a strong indication" that the ILC and the liquidator were "unsure whether this deed could stand legal action". I am not prepared to draw any such inference from what is generally a standard clause in a transaction such as this. The specific reference to Mr Anderson reflects the relevant parties' appraisal at that time that Mr Anderson might challenge the Deed, which is what in fact then occurred.

The alleged ulterior motive for the making of the ILSC's claim for privilege

1. The ILSC's claim of privilege and the making of consent orders in respect of that claim is referred to at [46]-[49] above. There is no evidence to substantiate the serious allegation that the ILSC made its privilege claim for anything other than a forensic purpose. Merely that the parties came to a settlement on the claim does not alter the position.

The ILSC's alleged "deal" with the liquidator

1. This overlaps with the defendants' claims regarding alleged fraud by the liquidator and the liquidator's right to retransfer the lands to the ILSC. There is also an overlap with the defendants' case complaining about the ILSC's claim for privilege. I have explained elsewhere why I reject all those claims.

The claim that the ILSC was responsible for Ngurampaa's liquidation

1. The defendants claim that the responsibility for Ngurampaa's liquidation rested with the ILC. They particularly emphasise the effect of the caveats held by the ILC which they contend made it impossible for Ngurampaa either to raise finance using the lands as security or to sell part of the lands. They contend that although Ngurampaa made extensive enquiries from potential financiers, none was prepared to lend money to Ngurampaa because of the caveats and the ILC refused to remove the caveats.
2. It is unnecessary to descend into any more detail relating to this topic because even if the defendants' allegations were established (about which I make no determination) this would not give rise to actual fraud so as to defeat ILSC's indefeasibility of title. The caveats were imposed in accordance with the ILC's contractual rights under the Mogila and Currawillinghi Deeds.

Various claims of unconscionable conduct

1. The claims of unconscionability are not expressed as claims of actual fraud on the part of the ILSC. Rather, they relate, for example, to such matters as the lease arrangements entered into between Ngurampaa and Mogila Merino Stud for a term ending on 27 June 2002.
2. In the Amended Defence at [23]-[24] the defendants raise an allegation of unconscionable conduct by reference to material which is set out at [7]-[8] and [13] of their Defence. The relevant material includes statements allegedly made by then General Manager of the ILC, Mr Murray Chapman, to a Senate Estimates Committee on Aboriginal Affairs, which statements are recorded in the Commonwealth Hansard. Those extracts relate to the question whether the ILC ever loaned money to Ngurampaa.
3. The difficulty with this particular claim is that the defendants sought to rely upon those extracts as evidence, but they were ruled to be inadmissible because of parliamentary privilege.
4. The defendants also claimed in their written submissions at [36] that the ILC engaged in "exploitation and unconscionable conduct" by leasing Mogila to the Mogila Merino Stud for the sum of only $1. They claim that this "demonstrates that [the] ILC took unfair advantage of the innocence of the people and constitutes an abuse of power". These claims are based on extracts from a board meeting dated 16 February 2002 by Mogila Merino Stud. There is a reference in those minutes to "Rent of $1.00 has already been paid". One difficulty with these claims is that there is insufficient admissible evidence to substantiate these claims of coercion or unconscionability.
5. Another instance of "unconscionable conduct" raised in the defendants' written submissions at [40] is that it was unconscionable for the ILSC to create Ngurampaa knowing that it had no independent income, yet was to be burdened with administrative costs, including under the lease with Mogila Merino Stud.
6. In circumstances where it is incumbent upon the defendants to particularise their allegations of fraud, I do not consider it necessary to determine their allegations of "unconscionable conduct" which fall short of alleging fraud. In taking this course I do not intend to suggest that there may have been any substance in the claims of unconscionable conduct.

Liquidator's right to release the lands

1. This claim by the defendants is partly based on a statement made by Senior Deputy Registrar Hedge on 20 July 2015 in the context of the Ngurampaa winding up proceedings. Reliance is also placed on statements made in correspondence by a lawyer for the ILC.
2. A copy of the transcript of the hearing conducted by Senior Deputy Registrar Hedge on 20 July 2015 was in evidence. The winding up application of Ngurampaa was filed by the Deputy Commissioner of Taxation. Both parties were represented by counsel. The Senior Deputy Registrar described some paragraphs of an affidavit by Ms Sapotnik-Eckford in those proceedings as "a bit confusing or inconsistent". When the Senior Deputy Registrar asked who owned the Mogila land, Ngurampaa's counsel initially denied that it was owned by Ngurampaa. In response the Senior Deputy Registrar is recorded in the transcript as asking "the land is not any asset of the company itself?", to which Ngurampaa's counsel responded: "That is so yes". Counsel for Ngurampaa then asked for time to obtain clearer instructions, after which he told the Senior Deputy Registrar that the land was owned by Ngurampaa.
3. Ultimately, orders were made for Ngurampaa to be wound up. Mr Morgan Chubb was appointed liquidator.
4. None of these matters supports Mr Anderson's claim that the ILSC's actions were in contempt of orders made by Senior Deputy Registrar Hedge on 20 July 2015. No order was made to the effect that the lands were not the assets of Ngurampaa.
5. The other basis for this aspect of the defendants' case relates to a statement made in a letter dated 24 November 2015 by the then Senior Legal Counsel for the ILC (Mr Sailesh Rai). Mr Rai was responding to a letter dated 28 September 2015 from the liquidator's solicitor. One reason which had been given by the liquidator for not transferring the lands back to the ILC was because he had a duty "to realise the assets of the Company for the benefit of all creditors …". In response, Mr Rai said that the lands were not assets of the company and, therefore, there would be no breach of duty if title was transferred back to the ILC. Relying on that exchange of correspondence during the course of the negotiations between the liquidator and the ILC, the defendants claim that since the lands were not assets of Ngurampaa the liquidator had no right to transfer them back to the ILSC.

Whether the claim for possession is contrary to the ATSI Act

1. Mr Anderson contended that the ILSC's claim to have legal ownership and/or an equitable interest in the lands was not supported by relevant terms of the ATSI Act. Preambles to the Mogila and Currawillinghi Deeds both refer to s 191D if the ATSI Act. As best I understood his argument, Mr Anderson sought to draw a distinction between the provisions in Divs 1 and 2 of Pt 4A of the ATSI Act. Two of the purposes of the establishment of the ILSC in s 191B were "to assist Aboriginal persons and Torres Strait Islanders to acquire land and water-related rights" and to assist such persons "to manage [I]ndigenous-held land and [I]ndigenous waters" (emphasis added). Mr Anderson emphasised the use of the term "persons" in s 191B. He contrasted that with provisions in Div 2 of Pt 4A and, in particular, the wording of ss 191C and 191D. Under s 191C(a), the ILSC was given the "acquisition functions as referred to in s 191D". The acquisition functions are then described in s 191D(1)(a) as "to grant interests in land, and water-related rights to, Aboriginal or Torres Strait Islander corporations".
2. "Aboriginal or Torres Strait Islander corporations" is defined in s 4 of the ATSI Act as meaning: (a) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or (b) a body corporate where either of the following conditions is satisfied: (i) all the members of the body corporate are Aboriginal persons or Torres Strait Islanders, or both; (ii) a controlling interest in the body corporate is held by Aboriginal persons or Torres Strait Islanders, or both.
3. "Aboriginal person" is defined in s 4 to mean "a person of the Aboriginal race of Australia". "Torres Strait Islander" is defined in s 4 to mean "a descendant of an [I]ndigenous inhabitant of the Torres Strait Islands".
4. Mr Anderson then pointed to what he said were conflicting statements by two senior staff members of the ILC regarding the transfer of Currawillinghi to Ngurampaa. On the one hand he said that the then General Manager of the ILC stated that the ILC "have now purchased Currawillinghi and divested it to Aboriginal Corporation" whereas the ILC's then director said that the ILC "had divested the land to the traditional owners". Mr Anderson emphasised the difference between the reference to divestment to a corporation as opposed to divestment to Traditional Owners. He submitted that a corporation was a separate entity from persons.

Conclusion on ILSC's possession claim concerning Mogila

1. For these reasons, the ILSC has established its claim for possession concerning Mogila. Leave should be granted for the ILSC to issue a writ of possession in respect of Mogila. In recognition of the fact, however, that it will probably take some time for the defendants to vacate Mogila having regard to the nature and extent of the activities carried out on the property and their lengthy association with Mogila, I consider that it is appropriate that the issue of the writ be stayed for a period of 56 days.

The ILSC's claim for possession concerning Currawillinghi

1. As noted above, many of the claims set out above were said by the defendants to apply also to Currawillinghi. I have explained why those claims are rejected.
2. The defendants also alleged that the Currawillinghi Deed is affected by fraud for another reason. This serious allegation arises from the defendants' claim that several handwritten changes to the Currawillinghi Deed were made without the consent of the Traditional Owners nor were those changes accompanied by any initials. The handwritten changes are as follows: 1. the date of the Deed was changed from 27 October 1999 to 27 January 2000; 2. the definition of "Transfer date" was changed from 22 October 1999 to 4 February 2000 (subject to the original notation that another date may be agreed by the parties); 3. on page 7 of the Deed, instead of Mr Murray Chapman signing the Deed on behalf of the ILC, his name was struck out and replaced by Mr John Wilson, who signed the Deed on 27 January 2000.
3. There are several reasons why this allegation of fraud is rejected. First, although each of the handwritten changes is not initialled, at the foot of each page of the Deed there are several handwritten signatures, including those of Ms Cubby and Ms Jennifer Gibbs, both of whom were directors of Ngurampaa at the relevant time (their signatures also appear on the last page of the Deed, alongside the common seal of Ngurampaa). There is simply no evidence before the Court to substantiate the claim that the handwritten changes were not approved by the signatories.
4. Mr Anderson also claimed that the Currawillinghi Deed was void because the handwritten date change on page 1 of the Deed from 27 October 1999 to 27 January 2000 could not be correct because the copy of the Deed in evidence indicated that stamp duty was paid on the Deed on 27 January 2000 at 9:26:59AM in Brisbane, which is an eight hours drive away from Mogila where the Deed was signed.
5. The defendants carried the onus of establishing, to the Briginshaw standard, their serious allegation of fraud. I am not persuaded that this onus is discharged on the basis of drawing inferences of the kind advanced by the defendants as described immediately above. Significantly, the defendants did not call any witness who was involved in the execution of the Deed to make good their serious allegations of fraud. Mr Raymond Cubby's evidence does not assist the defendants' case. As noted at [106] above, there is some confusion in Mr Cubby's evidence. The weight to be given to this evidence is affected by the fact that it is clear that the Mogila and Currawillinghi Deeds were executed at different times and almost eighteen months apart. The Mogila Deed is dated 22 June 1998 (see at [119] above) while the Currawillinghi Deed is dated 27 January 2000 (see at [124] above). Moreover, even if the Court were to accept Mr Cubby's evidence based on his knowledge and belief, that would not mean that independent legal advice was not given in other ways, such as by telephone.

Was consent required under s 174 of the Land Act?

1. There is an additional matter relied upon by the defendants in resisting the ILSC's claim for possession in respect of Currawillinghi. They complain that consent of the Governor in Council to the transfer of Currawillinghi was required under s 174 of the Land Act and such consent was not obtained.
2. I will now explain why that complaint is baseless.
3. Sections 174(1) and (4)-(5) of the Land Act provided, as at 28 May 2014: (1) If a perpetual lease for agricultural or grazing purposes is converted to a deed of grant, or a deed of grant issues for a grazing homestead freeholding lease, the deed of grant is issued subject to a covenant prohibiting the transfer of the land to a corporation, or to a person as trustee for a corporation, without the Governor in Council's approval. … (4) The registered owner of a deed of grant mentioned in subsection (1) may apply for the removal of the covenant from the land. (5) The applicant must be given notice of the Governor in Council's decision about the removal of the covenant.
4. The grant of freehold of Currawillinghi on 11 December 1998 contained such a condition. As noted at [121] above, however, on 1 April 1999, the condition was lifted from the title. Accordingly, there was no need to obtain consent under s 174 when the land was transferred to the ILSC in 2019. In any event, s 174 of the Land Act was itself omitted by s 53 of the Land and Other Legislation Amendment Act 2014 (Qld) so there was no statutory requirement for consent in 2019.

Section 47A of the Native Title Act

1. As noted above, Currawillinghi is the subject of a consent determination which recognises the existence of native title subject to s 47A of the Native Title Act. Mr Anderson was a claimant in that proceeding. Section 47A is a complex provision. In broad terms it provides for circumstances in which events which otherwise would extinguish native title rights and interests must be disregarded.
2. Section 47A of the Native Title Act provides: 47A Reserves etc. covered by claimant applications When section applies (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. Prior extinguishment to be disregarded (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. Effect of determination (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.

Does s 47A of the Native Title Act apply?

1. Section 47A does not apply to Mogila simply because there is no evidence of any claimant application over the area (see s 47A(1)(a) of the Native Title Act). However, s 47A does apply to Currawillinghi to the extent that one or more members of the claim group in the NT Claim occupy it, for the following reasons.
2. Subsection (1) contains the criteria for s 47A to apply. Subsection (1)(a) is satisfied in respect of Currawillinghi because: 1. the NT claim is a claimant application pursuant to s 253 of the Native Title Act; and 2. Currawillinghi is within the NT Claim and fits the description of "an area".
3. Subsection (1)(b) has two limbs, the satisfaction of either being sufficient.
4. For the following reasons, the second limb as in s 47A(1)(b)(ii) of the Native Title Act is satisfied. The question whether the area is held expressly for the benefit of Aboriginal peoples can be approached from the point of view of the legislative or executive structure under which the grant or transfer was made or from the point of view of the entity which holds the beneficial interest, and will depend on the factual circumstances: Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228; [2016] FCA 776 at [482]-[485]. The difference is that if it is approached from the point of view of the legislative or executive structure under which the grant or transfer was made then s 47A only operates where the legislation underlying a grant, or the grant itself, imposes a condition that is intended to secure the indefinite future use of the land for the express benefit of Aboriginal persons: Risk v Northern Territory [2006] FCA 404 at [881].
5. At [14.830] of Butt's Land Law the following guidance is provided where reliance is placed upon s 47A(1)(b)(ii) (footnotes omitted): Where the applicants rely on s 47A(1)(b)(ii) (areas held "exclusively for the benefit" of Aboriginal peoples or Torres Strait Islanders), the issue of whether the area is held "expressly for the benefit" of the relevant group is decided having regard to the object and purpose of the legislation under which the area is held, and the objects and constitution of the landholding entity. …
6. At the date of the making of the NT Claim, Ngurampaa held Currawillinghi expressly for the benefit of Aboriginal people because its Articles of Association required its members to be descendants of the Traditional Owners of Currawillinghi, its Memorandum of Association provided that its objects were to benefit Aboriginal people, and Currawillinghi was transferred subject to conditions including that it shall ensure the land is applied solely towards the promotion of its objects and it was not permitted to enter into any agreements or arrangements inconsistent with the purpose of the transfer: see at [117] above and Coulthard at [114]-[116], [118]-[119]; Rrumburriya at [490]-[491]; AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193 at [928]-[932].

What is the consequence of s 47A applying?

1. This question needs to be addressed in two stages. The first is the position as at the date the NT Claim was made, ie 23 January 2017, and the second is the current position. This is necessary because the position has changed in that time. In particular, the transfer of Currawillinghi from Ngurampaa to the ILSC was registered on 10 July 2019 pursuant to the Deed of Settlement and Release dated 24 January 2019.
2. Normally, a grant of fee simple (as was made in respect of Currawillinghi) extinguishes native title: Fejo at [43] and [46]-[47]. However, native title was extinguished by the earlier grant of Grazing Homestead Freeholding Lease 39/3206 over Currawillinghi, which was issued on 1 July 1968. The Grazing Homestead Freeholding Lease was a previous exclusive possession act under s 23B(2)(c)(i) of the Native Title Act because it is a Scheduled interest under cl 22(2) of Sch 1 of that Act and it therefore extinguished native title: see s 23E of the Native Title Act and s 20(e) of the Native Title (Queensland) Act 1993 (Qld). Alternatively, it was a category A past act under s 229(3) of the Native Title Act, which was validated and extinguished native title: s 19(1) of the Native Title Act and ss 8 and 10 of the Native Title (Queensland) Act 1993 (Qld).
3. Pursuant to s 47A(2) of the Native Title Act, any extinguishment of native title by the grant of the Grazing Homestead Freeholding Lease is to be disregarded "[f]or all purposes under this Act in relation to the application". Accordingly, if Currawillinghi was still vested in Ngurampaa, the effect of s 47A(2) would be that the question whether the NT Claim group hold native title rights and interests over Currawillinghi would depend on them establishing native title in fact by their ongoing connection. However, s 47A(2) says nothing about the interaction between Ngurampaa's freehold and any such native title rights. This is governed by s 47A(3).
4. The Federal Court consent determination in Knox did not affect the validity of the grants of the Grazing Homestead Freeholding Lease or the freehold or the vesting of the freehold in Ngurampaa: s 47A(3)(a).
5. In addition, the non-extinguishment principle applies to any such grant, vesting or interest: s 47A(3)(b). The non-extinguishment principle is defined in s 238 of the Native Title Act. It involves the "suspension of what otherwise would be native title rights and interests so that, while they continue to exist, to the extent of any inconsistency (which may be entire) they have no effect in relation to the 'past act' in question. The native title rights and interests again have full effect after the 'past act' ceases to operate or its effects are wholly removed": Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [7].

Conclusion on the ILSC's possession claim concerning Currawillinghi

1. For these reasons, I am satisfied that the ILSC should succeed in its claim for possession concerning Currawillinghi. The SOC sought judgment for possession of the whole of the land comprising Currawillinghi. Significantly, however, no relief was sought in the SOC for leave to issue a writ of possession in respect of Currawillinghi (as opposed to Mogila). Presumably this is because Queensland law differs from NSW law on this matter (see rr 913-915 of the Uniform Civil Procedure Rules 1999 (Qld)).

Mr Anderson's Cross-Claim

1. The Statement of Cross-Claim filed on 1 April 2021 is not easily understood, primarily because it is not in proper form and reads as a narrative. It is also evident from handwritten changes on the cover page that it was changed shortly before filing. The handwritten changes indicate that Mr Anderson is the sole cross-claimant. It appears that it was previously intended that Ms Mavis May Eckford be a second cross-claimant and that 31 bloodline descendants of Sarah Eckford would also be cross-claimants. Significantly, however, those parties were deleted by handwritten changes prior to filing so as to leave Mr Anderson as the sole cross-claimant.
2. The only cross-defendant identified in the Statement of Cross-Claim as filed is the ILSC.
3. The contents of the Cross-Claim were not amended to reflect those changes to the claimants in the Cross-Claim. Thus, for example, the relief sought includes judgment for the "Claimants" for possession of the land. Orders are also sought to have the ILSC removed from the land titles registers in NSW and Queensland. There are also numerous references to the "Claimants" in the pleadings and particulars in the Statement of Cross-Claim, including the 31 bloodline descendants referred to above.
4. I have drawn attention to these matters because they highlight some of the practical difficulties which affect a large part of Mr Anderson's Cross-Claim, namely his claim that the Traditional Owners of the lands have equitable rights which pre-date those of the ILSC and should prevail. These equitable rights are said to arise under "the ancient Celestial Laws and customs as the original possessors of the said lands and waters". This appears to involve a claim to the effect that native title rights and interests affect the lands. Mr Anderson does not contend that this claim arises under the Native Title Act. It appears to be a claim based upon the common law, with particular reference to the principles established in Mabo (No 2). Mr Anderson also drew the Court's attention to some earlier authorities (including the decision of Willis J in R v Bonjon, Supreme Court of New South Wales, 16 September 1841). It is unnecessary to address those cases because Mabo (No 2) contains an authoritative description of native title rights and interests recognised by the common law.
5. One of the significant difficulties with this part of Mr Anderson's Cross-Claim is that his pleading leaves unclear precisely who constitutes the group of persons who have native title rights and interests in the land. Mr Anderson presumably made a considered choice to bring the Cross-Claim in his personal name only, albeit as the leader of the Ghurrie clan of the Euahlayi Nation (see at [6] in the Statement of Cross-Claim). Further, at [1] of the Statement of Cross-Claim, it is pleaded by Mr Anderson that he is the owner of the lands (in possession and occupation pursuant to a right of possession under "the pre-existing ancient title of the Ghurrie Clan as per the laws and customs of the Euahlayi Tribe (Nation)"). There is a reference at [3] of the Statement of Cross-Claim that the "Claimants" in this application are all bloodline descendants of King Tyson's blood sister, Sarah Eckford. These bloodline descendants are not identified in the pleading. The evidence before the Court is inadequate in determining all the persons who are said to have native title rights and interests in Mogila.

Claimed native title rights over Mogila

1. Any native title rights over Mogila have not been the subject of a determination under the Native Title Act. Therefore, Mr Anderson's native title claim must arise at common law and be governed by cases such as Mabo (No 2).
2. A very real question arises whether sufficient evidence has been provided to enable an informed decision to be made as to whether native title rights exist in respect of Mogila and, if so, in whom. As noted above, the Statement of Cross-Claim was amended so as to move Ms Mavis May Eckford and 31 bloodline descendants of Sarah Eckford as cross-claimants. The particulars of the 31 bloodline descendants are not identified in the Statement of Cross-Claim. Although there are references in Mabo (No 2) to the possibility that native title rights and interests might be that of an individual, ordinarily those rights or interests belong to a community or group (see Mabo (No 2) at 52 per Brennan J; at 85, 88 and 109-111 per Deane and Gaudron JJ; and at 178-179 per Toohey J). The evidence before the Court leaves distinctly unclear the identities of the persons who comprise the community or group to which the claim is said to relate.
3. Let it be assumed (without deciding) that native title rights and interests do exist in relation to Mogila and the community or group to whom those rights relate has been adequately identified. The relevant issue then becomes whether those rights have been extinguished under the Native Title Act. This question must be addressed with reference to the different kinds of legal title comprising the 20 titles of which Mogila is comprised.

The six fee simple titles

1. Each of the 6 Mogila titles comprising a fee simple interest extinguish any native title rights in respect of those parcels (see Mabo (No 2) at 68-70 per Brennan J and at 89 and 110 per Deane and Gaudron JJ; Fejo at [47]; and Ohlsen v Attorney-General (NSW) [2021] FCA 169; (2021) 390 ALR 187 at [47] per Griffiths J, as affirmed on appeal in Attorney-General (NSW) v Ohlsen (2022) 290 FCR 173; [2022] FCAFC 38). That is because there is a fundamental inconsistency between the grant of a freehold estate and the continued existence of any native title rights and interests. The freeholder has the right, subject to any statutory or common law qualifications, to use the land as seen fit and this is incompatible with the continued existence of any native title rights and interests even where native title holders maintain their connection with the land under traditional laws (see Butt's Land Law at [14.340]).
2. Moreover, each of the grants of freehold involving fee simple interests are "previous exclusive possession acts" under s 23B(2) of the Native Title Act. They are taken to have extinguished native title when the grants were made: s 23E of the Native Title Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) (NSW Native Title Act).
3. The extinguishment of native title (see s 11(1) of the Native Title Act and Wilson v Anderson at [46]) flows from the following three criteria being satisfied in respect of the 6 freehold titles (see generally Butt's Land Law at [14.630]ff): 1. Each of the 6 grants of freehold was valid as required by s 23B(2)(a). The grant of freehold in respect of the title made up by two parcels occurred on 18 April 1939. The freehold over the remaining five titles was granted on 1 May 1989 upon registration of the transfer of an estate in fee simple. Those grants of freehold were valid either because they occurred before the commencement of the Racial Discrimination Act 1975 (Cth) on 31 October 1975 or they were each a "past act" for the purposes of s 228 of the Native Title Act that occurred before 1 January 1994 and was validated by s 8 of the NSW Native Title Act. 2. Secondly, the criterion in s 23B(2)(b) of the Native Title Act is satisfied because each grant of freehold occurred on or before 23 December 1996. 3. Thirdly, each grant involved a freehold estate, which is one of the categories of grant provided for in s 23B(2)(c) of the Native Title Act which qualifies as a "previous exclusive possession act" (see generally Ward at [8]-[10]).

The 14 Mogila leasehold titles

1. Thirteen of the leasehold titles relate to 12 Western Lands Leases (WLLs) (WLL 4602 covers two parcels and creates two separate titles to those parcels). All these WLLs were granted for pastoral purposes and all are in perpetuity. Eleven of them were granted in perpetuity from the time of their original grant.
2. The power to grant a WLL in perpetuity became possible on the commencement of s 8(a) of the Western Lands (Amendment) Act 1934, which inserted a new s 23 into the Western Lands Act.
3. The remaining two WLLs (Nos 266 and 3848) were initially granted for fixed terms expiring on 30 June 1943 and 30 June 1968 respectively. Subsequently both were extended to a lease in perpetuity pursuant to s 18E of the Western Lands Act on 19 September 1934 and 19 February 1937 respectively.
4. The remaining leasehold is a conditional lease (No 1589). A copy of this lease was not in evidence. Instead an extract from the Government Gazette dated 4 November 1885 was in evidence. It refers to this conditional lease having been granted under cl 52 of the Crown Lands Act 1884 (NSW). Significantly, the conditional lease was extended to perpetuity on 17 December 1937. The ILSC handed up a document which summarised the relevant terms and conditions imposed on conditional leases under the Crown Lands Act. Many of those terms and conditions were similar to those applying to WLLs. None of those terms and conditions was inconsistent with the characterisation of the conditional lease as conferring a right of exclusive possession which was inconsistent with any continuing native title rights and interests.
5. A Title Search in respect of this estate was also in evidence. It is described there as a perpetual lease and that it is also subject to the Crown Lands Consolidation Act. Those conditions relate to such matters as residency, fencing and improvements. None of the conditions imposed by the Crown Lands Consolidation Act derogates from the right of exclusive possession conferred upon a conditional leaseholder. The importance of the conditional lease being a perpetual lease is that it attracts the observations of the High Court in Wilson v Anderson regarding the significance of a perpetual term, a matter to which I now turn.
6. It is significant that all 14 of the Mogila leases are in perpetuity. In Wilson v Anderson, it was held that a perpetual lease for grazing purposes granted under the Western Lands Act conferred a right of exclusive possession which is inconsistent with native title rights and interests. The history and purpose of that legislation and the fact that the lease was granted in perpetuity were important factors in reaching that conclusion (see at [17]-[21] per Gleeson CJ and at [109]-[119] per Gaudron, Gummow and Hayne JJ). As the plurality stated at [115]-[116] in emphasising the significance of the fact that the leases were in perpetuity (footnotes omitted): 115 The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non-observance of conditions is equivalent to the right of re-entry on breach of a condition subsequent attached to a determinable fee simple. 116 However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, ''all the advantages and essence of a freehold''. Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.

Mr Anderson's claim based on adverse possession

1. It appears from the Statement of Cross-Claim that a second basis relied upon by Mr Anderson in support of his claim for possession relates to his claimed adverse possession of the lands.
2. He claims that he and Ms Sapotnik-Eckford have occupied Mogila and Currawillinghi since 2002 (without interruption). He also relies upon all the work which he, Ms Sapotnik-Eckford and other Traditional Owners have done in order to manage the lands, notwithstanding the severe adverse effects of three droughts during the period from 2002 to recently. Mr Anderson pointed to the extracts from Ngurampaa's financial statements which were included in Ms Sapotnik-Eckford's second affidavit as evidencing the extent of the works carried out on the lands.
3. These claims appear to be based on adverse possession. If so, as the ILSC pointed out, they are bound to fail. That is because the defendants' occupation of the lands since 2002 has been through Ngurampaa or, after Ngurampaa was liquidated, with the permission of the liquidator. The lands were then transferred to the ILSC on 10 April 2019 in the case of Currawillinghi (registered on 10 July 2019). In the case of Mogila, the transfer occurred on 16 April 2019 with the registration occurring on 20 November 2019. Having regard to this chronology, the defendants' occupation or possession of the lands falls far short of the 12 years required in both NSW and Queensland for a claim based on adverse possession to succeed (see s 27(2) of the Limitation Act 1969 (NSW) s 13 of the Limitation of Actions Act 1974 (Qld)).
4. For completeness, it might also be noted that on 11 September 2020 Mr Anderson lodged with the NSW Land Registry Services an application for possessory title in respect of the lands comprising Mogila in the name of IW Ghillar (another pseudonym for Mr Anderson). The application was rejected on 24 March 2022.

Conclusion on Cross-Claim

1. For these reasons, the Cross-Claim must be dismissed. Mr Anderson should pay the ILSC's costs of his Cross-Claim.

ILSC's injunction claim

1. As noted above, the ILSC sought in the alternative an injunction restraining further trespasses to Mogila and Currawillinghi by the defendants. It was made clear by Mr Docker that this claim was not pressed if the ILSC succeeded in its claims for possession. Accordingly, it is unnecessary to determine this claim.

Conclusion

1. For these reasons, the following orders should be made: 1. Judgment for the plaintiff for the possession of the land known as Mogila which is situated at XXXX XXXXXXXX XXXX, Goodooga NSW 2838, which land is constituted by the following certificates of title in the land titles register in the State of NSW: 1. [redacted] 1. Grant leave to the plaintiff to issue a writ of possession in respect of the land identified in order (1) above. 2. Order 2 be stayed for a period of 56 days from the date of this judgment. 3. Judgment for the plaintiff for the possession of the land known as Currawillinghi which is situated at XXXXXX XXXX, Dirranbandi QLD 4486 which land is identified by the certificate of title number XXXXXXXX in the land titles register in the State of Queensland. 4. Order that the Cross-Claim filed by the first defendant be dismissed. 5. Subject to order (7) below, order that the first and second defendants pay the plaintiff's costs of the proceedings. 6. The first defendant pay the plaintiff's costs of the Cross-Claim.

Annexure A (451059, pdf) Annexure A (451059, pdf) Annexure B (405351, pdf) Annexure C (248878, pdf) Annexure D (120050, pdf)

Amendments 09 December 2022 - Typographical error in [33] of judgment amended 20 December 2022 - Hyperlinks to annexures A, B, C and D added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2022