James v State of Western Australia

THE QUESTION REFERRED 14 The only issue on which the parties have not reached final agreement is the question of law as to whether and, if so, the extent to which the leases or any of them extinguish the native title rights and interests. 15 The presiding member of the NNTT considers that it would expedite the reaching of an agreement at mediation, if the referred question was answered by this Court. 16 The specific question of law posed to the Court by way of a special case pursuant to s 136D NTA is, in relation to each lease: (a) is the grant of the lease a 'past act' as defined in s 228 NTA for the purposes of Pt 2 of the Titles (Validation) and the Native Title (Effect of Past Acts) Act 1995 (WA) (TVA)? (b) If the answer to question (a) is 'yes', into which of the four categories of past act, as defined in ss 229-232 NTA for the purposes of Pt 2 TVA, does the lease fall? 17 The parties have agreed that certain documents comprising five volumes are those which will be necessary to enable the Court to decide the question raised by the special case.

JURISDICTION 18 The referral is authorised by s 136D NTA and O 78 Div 3 of the Federal Court Rules (FCR). In accordance with O 78 r 16(1) FCR, the referral is in the form of a special case. The other requirements of Div 3 of O 78 FCR have been satisfied.

THE NATURE OF THE ISSUE 19 As outlined above, the question of law relating to the operation of the 'past act' provisions of the NTA, in particular s 228, relates to the various mining tenements granted within the area of the Martu native title claim. The parties do not agree on the answer to that question. 20 Section 228 NTA provides: 228 Past act Definition (1) This section defines past act. Acts before 1 July 1993 or 1 January 1994 (2) Subject to subsection (10), if: (a) either: (i) at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or (ii) at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and (b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist; the act is a past act in relation to the land or waters. Options exercised on or after 1 January 1994 etc. (3) Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if: (a) it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) it takes place: (i) in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or (ii) in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and (c) the act is not the making, amendment or repeal of legislation. Extensions, renewals etc. (4) Subject to subsections (6) and (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if: (a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) an act (the earlier act) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and (c) the earlier act created interests in a person and the later act creates interests in: (i) the same person; or (ii) another person who has acquired the interests of the first person (by assignment, succession or otherwise); in relation to the whole or part of the land or waters to which the earlier act relates; and (d) the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and (e) the interests created by the later act permit activities of a similar kind to those permitted by the earlier act. Examples of similar and dissimilar acts for the purposes of paragraph (4)(e) (5) The following are examples for the purposes of paragraph (4)(e): (a) the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act; (b) the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act. Cases excluded from subsection (4) (6) Subsection (4) does not apply if: (a) the earlier act was the creation of a non-proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or (b) the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or (c) if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders - the later act does not contain the same reservation or condition; or (d) the earlier act or the later act is the making, amendment or repeal of legislation. Example of earlier and later acts for the purposes of paragraph (6)(a) (7) For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non-proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land. Example of earlier and later acts for the purposes of paragraph (6)(b) (8) For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land. Other extensions, and developments, of earlier acts (9) Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if: (a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and (c) the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and (d) the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and (e) the later act is not the making, amendment or repeal of legislation. Excluded acts (10) An act is not a past act if it is: (a) the Queensland Coast Islands Declaratory Act 1985 of Queensland; or (b) any other act declared by the regulations to be an excluded act for the purposes of this paragraph. 21 By s 231 NTA, a category C past act is defined thus: 'A category C past act is a past act consisting of the grant of a mining lease'. 22 Section 10 RDA provides: 10 Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where a law contains a provision that: (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or (b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person. 23 The parties describe the legal debate in these terms: '14. In short, the legal arguments of the Applicant and the First Respondent centre on whether the conclusion in Western Australia v Ward (2002) 213 CLR 1 ("Ward HC") as to the effect that a mining lease granted under the Western Australian Mining Act 1978 has on native title viz, that the Racial Discrimination Act 1975 (Cth) ("RDA") was not engaged to invalidate the grants of mining leases under the RDA, so that the grants were not category C past acts (Ward HC at [321]), is relevantly distinguishable in respect of pre-1994 mining leases. 15. In particular, a focus of the arguments is whether the RDA invalidates the pre-1994 mining leases and whether section 228(2)(b) of the NTA is thereby engaged to validate the mining leases as Category C past acts in respect of which the non-extinguishment principle applies.' 24 What was said by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward (2002) 213 CLR 1 (Ward)(at [321]) (footnotes omitted) was: [321] Were it not for the special provisions of s 45 of the NTA, s 10 of the RDA would ensure that the amount of compensation would be that determined in accordance with s 123 of the WA Mining Act. Section 45 is an instance of the operation of s 7 of the NTA to control the interrelation between the NTA and the RDA. Section 45(1) states: "If the [RDA] has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act." Section 50 is in Div 5 of Pt 2 of the NTA, which is headed "Determination of compensation for acts affecting native title etc". Section 50(1) states: "A determination of the compensation may only be made in accordance with this Division." It should be emphasised that when the RDA operates in this way, the validity of the grants of the mining leases is unaffected, as is the extinguishing effect that those grants may have on any native title. The grants did not, therefore, constitute category C past acts. The result is that to the extent that the grants of the respective mining leases extinguished native title, that native title is extinguished and in place thereof, the holders of that native title have a statutory entitlement to compensation as described above.

RESERVING THE REFERRAL TO THE FULL COURT 25 The purpose of these reasons is to determine whether or not the question should be referred to the Full Court. 26 In that regard, the applicant and the first respondent (the State) have jointly submitted that the question for referral to this Court should be referred to the Full Court. 27 By s 25(6) of the Federal Court of Australia Act 1976 (Cth) (FCA), it is provided that the Court constituted by a single judge may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the judge to a Full Court of the Court for the consideration of a Full Court and a Full Court has jurisdiction to hear and determine the case or question. 28 Any decision of a single judge on a referral of a question of law filed pursuant to s 136D NTA may be appealed to a Full Court (s 24(1)(a) FCA). Therefore, a s 25(6) FCA referral is available. Indeed, it has been described as a general provision relating to all matters which are before a single judge of the Court (Barton v Westpac Banking Corporation (1993) 50 ALR 397 at 415 per Sheppard J). As also observed by Sheppard J in Barton at 415, a single judge has a wide discretion as to whether to state a case or reserve a question to a Full Court. His Honour cited with approval the observations of Barwick CJ in Point v Federal Commissioner of Taxation. [No 2] (1970) 124 CLR 669 in relation to s 196 of the Income Tax Assessment Act 1936 (Cth). 29 As guiding indications, Sheppard J observed in Barton that: it will only be if a judge considers that it is convenient to refer a question, perhaps because it raises unusual difficulties or perhaps because there are conflicting decisions - the list is not exhaustive - that a judge will normally accede to an application. 30 Heerey J agreed with this summary in Dexcam Australia Pty Ltd v Deputy Commissioner of Taxation [1999] FCA 1784 (at [12]) adding that in exercising the discretion afforded by s 25(6): is necessary to bear in mind the basic framework that the Federal Court of Australia Act enacts for litigation in this Court. Issues of fact and law are to be decided at first instance by a single judge. … Considerations of orderly administration of the Court and efficient application of its resources indicate that this framework should not be lightly departed from. 31 On that basis, his Honour declined to reserve the matter for the Full Court on the basis that there was already a closely analogous Full Court authority on the matter and his Honour was, in any event, bound to decide whether the principle in that authority was binding on him. 32 The breadth of the issues to be decided may be one factor to take into account. Beaumont J reserved a narrow question of statutory construction for the Full Court in K Mart Australia Limited v Commissioner of Taxation [1995] FCA 760. His Honour was of the view that the dispute was within a narrow compass in terms of the facts and the law. In that case, the parties had provided a 'draft special case' which had confirmed the possibility to state the facts concisely and to isolate with precision quite a narrow point of statutory construction (at [5]). On the basis that it was desirable that the Full Court express an opinion on the ultimate legal question, rather than for it to be undertaken by a single judge at first instance, his Honour concluded that the considerations of costs and expedition dictated that the matter proceed to the Full Court as soon as possible (at [6]). 33 A similar approach was taken by Wilcox J in Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCA 29, where his Honour took into account the 'overwhelming probability' that any first instance decision would be appealed. 34 The parties have also referred to my decision in Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2) [2008] FCA 1006 in which, after citing Barton, Dexcam and K Mart, the relevant considerations I identified (at [10]) were: · whether the Judge considers that it is convenient to reserve the question, for example having regard to the point at which it arises, the strength of the point, because it raises unusual difficulties or because there are conflicting decisions; · whether there are any similar authorities on the question of law; · whether they have been determined with the benefit of full argument; · the nature of the point of law to be decided, that is whether confined to a specific point of statutory interpretation; · costs and delay; and · administration of the Court. 35 Factors weighing against the exercise of discretion can include the fact that the primary judge has already made a decision on the issue in which case the appropriate mechanism is an appeal (New Tel and Barton); where the referral will extend rather than reduce the time needed to resolve the matter (Barton); and where the issue proposed to be referred merely involves the 'routine judicial task' of deciding whether a previous authority is analogous and whether it is binding on the primary judge (Dexcam).

ANALYSIS 36 The question of statutory interpretation and the application of the RDA requires consideration of the decision of the High Court in Ward in relation to the effect on native title of mining tenure granted before the commencement of the NTA but after the commencement of the RDA, that is to say, in relation to pre-1994 mining leases. There is, of course, no issue about whether Ward is binding but the question of whether it is applicable to the present circumstances is more complex than 'routine judicial task'. Ward itself, occupies four hundred pages of the Commonwealth Law Reports and one assumes for good reason. 37 This is not a case where there is a closely analogous Full Court authority giving rise to the kind of 'routine judicial task' as that expression was used in Dexcam. The legal analysis issues are not routine but complex and may be said to raise 'unusual difficulties' warranting consideration of the Full Court in the first instance (K Mart at [6]). 38 On applying the principles in the exercise of discretion, relevant considerations appear to be: 1. There is no dispute on the facts as set out in the referral. It succinctly states the facts as agreed by the State and the applicant. 2. The point of law to be decided is narrow while complex and important, being confined to a specific point of statutory interpretation concerning s 228 NTA albeit giving rise to detailed consideration of the operation of s 10 of the RDA. 3. The entire (long running) matter is likely to be resolved with the greatest expedition and least further delay if referred directly to a Full Court. Although the extent of the extinguishment will still need to be agreed by the parties in the event the question is resolved in favour of the State, that task is unlikely to require any further involvement of the Court. The balance of the Martu claim should be, at least in theory, capable of resolution by negotiation and mediation once this issue is resolved. 4. The issues raised in the referral are of broad importance and are likely to set important precedents in relation to the effect of pre-1994 mining leases on native title. As such, an appeal from any decision of a single judge seems most likely.

CONCLUSION 39 On this application of the identified principles, the referral of the question of law from the NNTT to this Court will be reserved to the Full Court pursuant to s 25(6) FCA. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 5 November 2009 Counsel for the Applicant: M O'Dell

Solicitor for the Applicant: Central Desert Native Title Services

Counsel for the First Respondent: R Webb QC with M Pudovskis

Solicitor for the First Respondent: State Solicitor for Western Australia