3 Under the order the application in proceeding WAG 6006 of 1998 was to be the lead application and the seven other applications were to "be continued in and under" the heading in that application. It appears to be common ground that some of the native title rights and interests of the applicants in areas that were within the boundaries of the lands and waters the subject of the eight applications, had been extinguished completely or partially prior to the dates on which the applications were filed. However, the applicants contend that since the filing of the applications facts have arisen which require the application of the non-extinguishment principle to those areas ("the relevant areas"), with the consequence that the prior extinguishment of the native title rights and interests in the relevant areas was required to be disregarded.
4 The dilemma confronting the applicants is:
(a) whether they are entitled to treat the relevant areas, which they contend are covered by the non-extinguishment principle, as areas claimed in their eight applications for native title and therefore able to be the subject of a determination of native title on those applications; or
(b) whether the relevant areas were not capable of being the subject of a native title claim in the eight applications because of the extinguishment of native title rights and interest in those areas prior to the date of the filing of the applications.
5 If the first question is answered in the affirmative the applicants can proceed to claim native title in respect of the relevant areas on their present applications. However, if the first question is answered in the negative, and the second question is answered in the affirmative, subject to certain exceptions, the applicants would have to make such amendments as may be appropriate to the eight applications to ensure that the relevant areas are not being claimed on their present application and file new applications for native title in respect of those areas.
6 The resolution of the applicants' dilemma is a matter of some importance as their claims for native title have been heard and are awaiting determination, subject only to a two week hearing late in September and early in October 2004 in relation to extinguishment issues. Thus, the applicants need to know whether they can proceed on their present combined applications in respect of the relevant areas or whether they must file new applications in respect of those areas. In order to resolve that dilemma the applicants applied to the Court under O 29 r 2 of the Federal Court Rules, and the Court ordered that the following separate question be decided:
"Whether, upon the proper construction of the words 'when the application is made' in ss 47(1)(b), 47A(1)(b) and 47B(1)(b) of the Native Title Act 1993 (Cth), an application is made -
(a) at all material times up until a determination of native title is made under s 225;
(b) at the time that the initiating application under ss 13 and 61 of the Act is issued; or
(c) at some other and which specified time."
7 The relevant provisions of ss 47, 47A and 47B are as follows:
Section 47:
"(1) This section applies if:
(a) an application under section 61 is made in relation to an area; and
(b) when the application is made, a pastoral lease is held over the area by:
(i) any of the persons who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title; or
(ii) a trustee, on trust for any of those persons; or
(iii) a company whose only shareholders are any of those persons.
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:
(a) the grant of the lease itself;
(b) the creation of any other interest itself in relation to the area;
(c) the doing of any act under the lease or by virtue of holding the interest."
…" [Emphasis added]
Section 47A:
"(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:
(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);
(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).
…" [Emphasis added]
Section 47B:
"(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
…" [Emphasis added]
8 A claimant application is defined in s 253 as a native title determination application that a native title claim group has authorised to be made.
9 Under ss 47, 47A and 47B the facts that attract the operation of the non-extinguishment principle must be in existence "in relation to an area" the subject of a claim of native title rights and interests "when the application is made". The applicants contend that an application that claims native title rights and interests is made, remains extant and therefore continues to be made in relation to the area the subject of the claim from the time it is filed in the Court until the determination of the application. If that contention were accepted it is contended that the non-extinguishment principle is to be applied on the basis of the facts in existence up to, or as at, the date of the determination of the native title application. In the alternative, the applicants claimed that, in a case such as the present where there was a combination order in respect of the eight applications, the date when the application is made for the purposes of the non-extinguishment principle is the date at which the combination order was made, namely 21 September 1999. The Walman Yawuru People, who are respondents in the combined applications, adopted the construction contended for by the applicants.
10 The State of Western Australia and the Commonwealth of Australia, who are also respondents to the combined applications, disputed the applicants' construction. They contended that for the purposes of the non-extinguishment provisions "when the application is made" means the date on which each of the eight native title applications was filed in the Federal Court pursuant to the provisions of s 61 of the Act.
11 The determination of the separate question requires consideration of the statutory scheme set out in the Act for the recognition and protection of native title.
The Act
12 Native title is recognised and protected in accordance with the Act (s 10) and is not able to be extinguished contrary to the Act (s 11(1)). The Act contains both a prescriptive and proscriptive regime in relation to native title applications and the areas which may be the subject of such applications. Relevantly, s 13 provides:
"(1) An application may be made to the Federal Court under Part 3:
(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or
(b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5).
(2) If:
(a) the Federal Court is making a determination of compensation in accordance with Division 5; and
(b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;
the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.
(3) Subject to subsection (4), each of the following is an approved determination of native title:
(a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);
(b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.
(4) If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:
(a) the Federal Court, in determining an application under Part 3; or
(b) a recognised State/Territory body in an order, judgment or other decision;
then:
(c) in the case of a variation - the determination as varied becomes an approved determination of native title in place of the original; and
(d) in the case of a revocation - the determination is no longer an approved determination of native title.
(5) For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:
(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination."
13 Sections 60A, 61 and 61A codify the manner in which native title and compensation applications are to be made and the areas which may be the subject of a claim of native title. Relevantly for present purposes, s 61(5) provides that such applications must:
"(a) be in the prescribed form; and
(b) be filed in the Federal Court; and
(c) contain such information in relation to the matters sought to be determined as is prescribed …"
14 Section 61A provides that a native title application must not be made in relation to an area for which there has been an approved determination of native title (s 61A(1)) or in relation to areas where native title has been completely extinguished by previous exclusive possession acts (ss 61A(2)). Section 61A(3) provides that application for exclusive native title must not be made where the previous partially extinguishing act is a non-exclusive possession act. In such a case the application may only claim non-exclusive native title rights and interests. However, under s 61A(4) the prohibition in ss 61A(2) and 61A(3) does not apply to an application if:
"(a) the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b) the application states that section 47, 47A or 47B, as the case may be, applies to it."
15 Relevantly, s 62(1) provides:
"A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant:
(i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
…
(b) must contain the details specified in subsection (2);"
Section 62(2) provides:
"For the purposes of paragraph (1)(b), the details required are as follows:
(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application;
to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);
…"
16 Consistently with s 62(2), Schedules B and C of the prescribed application form (see Form 1 in the Schedule to the Native Title (Federal Court) Regulations 1998) require that information in the form include the following:
"Schedule B (see Act, s 62)
Information identifying the boundaries of:
(a) the area covered by the application; and
(b) any areas within those boundaries that are not covered by the application.
Schedule C (see Act, s 62)
A map showing the boundaries of the area covered by the application."
17 It is clear from the statutory scheme that the area covered by the native title application is the area in which native title rights and interests are claimed; and that the areas within the boundaries of the area covered by the application that are not covered by the application include, inter alia, areas within the boundaries of the claimed area where native title rights and interests have been completely extinguished. In order to enable a workable and practical application of these provisions in circumstances where the non-extinguishment principle might operate it is common for applicants to include within the area claimed areas that may have been extinguished but to state that the inclusion of those areas is subject to such of the provisions of ss 47, 47A and 47B as apply to those areas: see Strickland at 256 [48] and 258 [54]-[55]. That form of claim was adopted by the applicants in the present case. However, it is relevant to note that, subject to such a reservation, the statutory scheme prohibits an application being made that claims native title in relation to an area in which native title has been completely extinguished.
18 Section 63 provides that if an application under s 61 is filed in the Court the Registrar must give the Native Title Registrar copies of the application and the accompanying material. Section 66 provides for the Native Title Registrar to give notice of the native title application to interested and other relevant parties.
19 Section 64 provides for amendment of applications. Areas the subject of native title applications may be reduced (s 64(1A)) but an amendment must not result in the inclusion of an area of land or waters that was not covered by the original application (s 64(1)). Accordingly, an application may not be amended to include areas which were not originally claimed but which may have become capable of being claimed after the filing of the application by reason of the non-extinguishment principle becoming applicable to those areas: see Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 5) (2003) 197 ALR 138 ("Harrington-Smith") at 144 ([30]-[32]). However, s 64(2) provides for an amendment to combine applications and in such cases the amendment is able to include all of the areas the subject of each of the combined applications.
20 Section 68 provides that where there is an approved determination of native title in relation to a particular area the Court must not conduct any proceeding relating to an application for another determination of native title, or make any other determination of native title, in relation to that area unless the proceeding is to revoke or vary the approved determination or is a review or appeal of that determination.
21 Determinations of native title are provided for in ss 223 and 225 of the Act. Section 223(1) provides:
"The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia."
Section 225 provides:
"A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others."
22 Although ss 223(1) and 225 are in the present tense s 250 provides that the use of the present tense in any provision of the Act "does not imply that the provision does not apply to things happening before the commencement of the provision".
Reasoning
23 In substance, the applicants contended that:
· an application for native title commences on the filing of the application and continues to be made until the point of time at which the Court has determined it;
· the determination of the application for native title, which necessarily includes a determination of whether native title in any part of the area claimed has been extinguished, speaks as at the date of the determination;
· it would be both incongruous and anomalous for the Act to require, as is contended by the State of Western Australia and the Commonwealth, that the determination of native title and extinguishment of native title speak and operate as at the date it is made but that the non-extinguishment principle operate at the different and fortuitous date of the filing of the application;
· sections 47, 47A and 47B are remedial provisions that recognise native title which, but for those provisions, would have been extinguished and as, a consequence, should be construed beneficially;
· one consequence of the incongruous and anomalous outcome contended for by the State and the Commonwealth is that the applicants would be required to file new applications for native title in respect of the relevant areas and amend their current applications to exclude claims in respect of those areas;
· to construe the words "when the application is made" to mean the date the determination is made, or the period terminating on that date, would give effect to the beneficial purpose of ss 47, 47A and 47B and also ensure a correspondence between the facts that determine the establishment of native title and the facts that determine the extinguishment of native title.
24 There is a superficial attraction about the applicants' submission that their interpretation would give effect to harmonious goals (see Ross v The Queen (1979) 141 CLR 432 at 440) by ensuring that the date of determination is the date at which all native title and extinguishment issues in relation to the land claimed can be determined. It appears to be correct that ss 223 and 225 provide for the determination to speak as at the date it is made. That construction is supported by ss 13(5) and 68 which provide for the finality of the determination save, inter alia, for events that have taken place since the determination was made that cause it no longer to be correct. If the determination was to be based on the events that have taken place as at the date of filing, rather than as at the date on which the determination is made, it could be expected that events since the filing, rather then since the determination, would be relevant for the purposes of a revocation or variation order under s 13(5).
25 However, I have concluded that the applicants' contentions should not be accepted and will endeavour to briefly state my reasons for that conclusion.
26 The applicable principle of construction was stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed."
27 The context, general purpose and policy of ss 47, 47A and 47B can be briefly stated. The purpose of the non-extinguishment principle is to disregard the prior extinguishment of native title is in respect of land held, vested in or occupied by the Aboriginal claimants or other indigenous persons in the circumstances specified in ss 47, 47A and 47B. The principle can only apply to "an area" that is the subject of an application that is made under s 61 of the Act. The operation of each of ss 47, 47A and 47B is dependent upon the prescribed factual situation existing at the particular time specified in ss 47(1), 47A(1) and 47B(1). The time specified is when the application concerning the area in respect of which the non-extinguishment principle applies is made.
28 The ordinary and natural meaning of the words used in ss 47(1), 47A(1) and 47B(1) is that an application in relation to an area is made when it is "made" to the Federal Court by being filed in that Court: see ss 60A and 61 of the Act and Strickland at 253 [35]. Although the precise question raised on the present application has not been the subject of consideration by the Court on the occasions that ss 47, 47A and 47B have been considered, those sections have generally been viewed as operating as at the date at which the application is filed in the Court: see Ward (on behalf of the Miriuwung Gajerrong People) v State of Western Australia (1998) 159 ALR 483 per Lee J at 636 (ss 47A and 47B); State of Queensland v Hutchison (2001) 108 FCR 575 per Kiefel J at 585 [30] (s 47B); Andrew Passi on behalf of the Meriam People v State of Queensland [2001] FCA 697 per Black CJ at [29] (s 47A); In the matter of Daniel v State of Western Australia [2003] FCA 666 per Nicholson J at [598]-[615] (s 47), [930]-[957] (s 47A); [958]-[971] (s 47B); Neowarra v State of Western Australia [2003] FCA 1402 per Sundberg J at [673]-[678] (s 47); [679]-[719] (s 47A); [720]-[760] (s 47B) and The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 per Mansfield J at [228]-[230] and [311]-[314] (s 47B).
29 There is also a compelling contextual reason why the date of filing, rather than the period between filing and the date of determination, is the correct date. The statutory scheme requires that applications and the supporting material clearly state and, subject to the limited non-exclusive claims exception, exclude from the areas being claimed, areas in respect of which native title has been extinguished (see s 61A(2), (3) and (4), s 62(1)(a) and (2)). The scheme also prohibits an amendment of an application that would have the consequence of claiming areas not originally claimed (that is, areas not covered by the original application): see s 64(1) and Harrington-Smith.
30 It must follow that an area in respect of which native title has been completely extinguished cannot be claimed in an application or by way of amendment to an application. Accordingly, and consistently with that scheme, when ss 47, 47A and 47B refer to the non-extinguishment principle applying in respect of an application or a claimant application under s 61 "in relation to an area" they must be taken to be referring to an area in respect of which, as at the date of filing, native title may be claimed and not to an area in respect of which, as at the date of filing, native title has been completely extinguished and therefore must not be claimed. Thus, when the sections proceed to apply the non-extinguishment principle to the facts in existence when the application is made it is clear that the principle is intended to apply to areas in respect of which native title would have, but for the operation of the non-extinguishment principle at the date when the application is made, otherwise been extinguished. Thus, the principle is intended to operate in the light of facts existing at the time of the filing of the application and not at any later time.
31 The position is not quite as simple in respect of areas the subject of partial extinguishment by reason of a non-exclusive possession act. Under s 61A(3), non-exclusive, but not exclusive, possession may be claimed in respect of such areas. However, that does not affect the construction question which must produce the same answer in respect of the application of the non-extinguishment principle in respect of both complete and partial extinguishment. If the non-extinguishment principle is sought to be relied upon on the basis of events arising since the date of filing, in order to claim exclusive possession of areas in respect of which partial extinguishment (that is, by reason of a non-exclusive possession act) existed at the date of filing, any exclusive possession claim in respect of those areas will have to be brought in a new application. The reason for that is that the post-filing events cannot be relied upon in that application. If only non-exclusive possession of such areas is intended to be claimed then no further application or amendment would appear to be necessary as the post filing events are not relevant to that claim.
32 Further, as was pointed out by the State and the Commonwealth, the construction contended for by them gives rise to certainty as to the areas that may be the subject of a native title claim at the date of the filing of the application with the consequence that the Registrar of Native Title can give notice of the claim to those entitled to receive such notice under the Act. Also, once the operation of ss 60-64 is understood there appears to be no anomaly or incongruity in the requirement that a further application is required to be made for areas sought to be covered by the application of the non-extinguishment principle by reason of facts occurring since the filing of the initial application.
33 Also, the State and the Commonwealth pointed to anomalies that could arise if the applicants' contentions were accepted. First, the period up to the date of the determination is not only uncertain but will also usually expire at some considerable time after the hearing has concluded. It is unlikely that it was intended that after the final hearing evidence continue to be adduced, for example, as to occupation during that period. Secondly, the notification provisions would effectively be by-passed in respect of the relevant areas claimed on the basis of events occurring up to the date of the determination. Thirdly, native title claimants who fall within, and therefore may be entitled to the benefit of, the non-extinguishment principle at the date of filing may lose that benefit if, for example, they ceased to occupy the area in question by the time the Court makes its determination.
34 In all the circumstances I do not accept that there is any anomaly or incongruity in the non-extinguishment principle operating at the date of filing.
35 I would add that I have approached the question of construction as a matter of substance, rather than form. One, but not the only, reason for doing so is that the Act is not particularly helpful when emphasis is placed on form. For example, the Act refers to "when the current application was made" (s 190C(3)(b) and Western Australia v Strickland (2000) 99 FCR 33 at 45-46 ([41]-[46]) and to "if an application under s 61 is filed in the Federal Court" (s 63). Such references were relied upon by the applicants to distinguish the date of filing or the date when an application "was made", from the date on which an "application is made". However, the context and purpose of such provisions is quite different to ss 47, 47A and 47B and little turns on the different terminology they use to refer to the date of filing. In any event, if the legislature intended ss 47, 47A and 47B to operate on the basis of the facts existing up to the date of determination it could have been expected to have said so.
36 Finally the applicants' alternative contention, that the date the application is filed is the date of the combination order, should also be rejected. It is clear from the terms of the combination order that it is combining the eight applications, each of which is continuing. Also, as explained above, the date at which an application to the Court under s 61 of the Act is made has important consequences. There is nothing in the legislative scheme that suggests that an order combining applications may override those consequences.
Conclusion
37 For the above reasons the answer to the separate question is that for the purposes of ss 47, 47A and 47B of the Act an application is made when the application is filed in the Federal Court.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.