Ward v State of Western Australia

the applicant's submissions 41 The applicant accepts that the passages relied upon by the State do not support and indeed count against the arguments it wishes to advance in [9.2(a)] and [9.2(c)] of the statement of facts, issues and contentions. Despite this, the applicant submits it should be allowed to advance alternative arguments on the basis that: this proceeding has been described by the State as a "test case" on compensation applications under the NTA; in Ward, the Court was dealing with a very large number of issues under the NTA and, as acknowledged in the joint judgment at [253], "no question of compensation" arose for consideration in that case; accordingly, it is unlikely that the particular argument which the applicant now wishes to advance was considered by the High Court; the Court is not bound by its previous decisions although it will ordinarily follow those unless there is some special reason for entering upon a reconsideration, as explained in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 369 (Mason J). 42 It is appropriate to note exactly how the applicant would propose putting the contentions it advances in [9.2(a)] and [9.2(c)] in the face of the authority of Ward. 43 As to [9.2(a)], the applicant agrees with the State that it is uncontroversial that, if native title existed at the time of the reservation, the reservation was a category D past act. It says the issue then arises as to how to characterise the subsequent vesting of the land. In this regard, the applicant says the starting point is the statute, in particular s 29 and s 33 of the Land Act. 44 In order to understand the argument that the applicant wishes to press it is appropriate to note the full text of these two provisions: 29. Governor may make reserves (1) The Governor may, subject to such conditions and limitations as he thinks fit, reserve to Her Majesty, or dispose of in such manner as for the public interest may seem fit, any lands vested in the Crown and the purpose for which any such lands are so reserved or disposed of shall be specified in the reservation or disposition. (2) Notwithstanding any other provision in this or any other Act, the Governor may, for such price and subject to such terms and conditions as he may determine, dispose of an estate in fee simple, free of all trusts, in any lands reserved under subsection (1) for the use and requirements of the Government or of any Crown instrumentality or of any local government, whether they were so reserved before or after the coming into operation of Part 11 of the Acts Amendment (Reserves) Act 1982. [(3) repealed] [Section 29 amended by No.58 of 1950 s.8; No.36 of'1958 s.2; No.73 of 1977s.6; No. 77 of 1982s.6; No.14 of 1996 s.4.] … 33. Vesting leasing, etc. of reserves (1) In this section, unless the contrary intention appears - 'land' means land reserved under this Act; 'the designated purpose' means the purpose for which land is reserved under this Act and any purpose ancillary, and beneficial, to that purpose. (1a) An order made under this section shall - (a) describe the land affected by that order; (b) specify the purpose for which the land affected by that order is reserved under this Act, or may be leased or granted in fee simple; (c) name the person - (i) in whom the land affected by that order is directed to be vested; or (ii) to whom a lease of, or the fee simple in, the land affected by that order is directed to be granted, by that order; and (d) specify the conditions and limitations subject to which the Governor by that order - (i) directs the vesting of the land affected by that order or the grant of a lease of, or the fee simple in, that land; or (ii) confers any power to lease or sub-lease the land affected by that order. (2) By Order the Governor may direct that any land shall vest in and be held by any person for the designated purpose, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose, and by the same or any subsequent Order the Governor may, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose, confer upon that person, power to lease for the designated purpose the whole or any part of the land. (3) (a) By Order the Governor may direct that any land shall be leased for the designated purpose, by instrument of lease in accordance with the prescribed form to any person. (3a) The person to whom the land is leased under subsection (3) may, with the consent of the Governor, sublet, for the designated purpose, the whole or part of the land, or mortgage for the designated purpose, the whole of the land. (ii) The consent of the Governor may be given under subsection (3)(a) subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose and the consent shall be endorsed on the instrument of sub-lease or mortgage, as the case may be. (4) (a) By Order the Governor may direct that any land shall be granted in fee simple to any person subject to the condition that the person shall not lease or mortgage the whole or any part of the land without the consent of the Governor and subject to such other conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose. (b) The consent of the Governor may be given subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose. (5) When the mortgagee of any land mortgaged with the consent of the Governor, whether before or after the commencement of the Land Act Amendment Act 1948, completes the exercise of the power of sale or foreclosure pursuant to the mortgage, the land shall by force of this enactment be freed from any trust, condition, limitation, or other restriction, created or imposed in relation to the designated purpose. (6) The provisions of this section shall apply in respect of all land reserved pursuant to the provisions of this Act prior to or after the commencement of the Land Act Amendment Act 1948. [Section 33 inserted by No.53 of 1948 s.5; amended by No. 77 of 1982 s. 8; No. 126 of 1987 s. 60.] 45 The applicant wishes to develop the following argument. Because "land" is defined in s 33(1) as "land reserved under this Act", the valid creation of the reserve is a necessary precondition to the vesting of that reserve. If native title existed at the time the reserve was purportedly created, then were it not for the operation of the NTA in subsequently validating the creation of the reserve, there would have been no reserved land to vest. It thus follows that the vesting, like the anterior reservation, was a "past act" as defined in s 228 of the NTA. This is because it was invalid "apart from" the operation of the NTA: see s 228(2)(b). If the vesting of the reserve is a past act, it must be a category D past act, because it is not a category A, category B or category C past act. 46 The applicant wishes to further develop its argument by pointing to s 15(1)(d) of the NTA, which provides that the "non-extinguishment principle" applies to a category D past act. The effect, it says, of characterising the vesting of the reserve as a category D past act, is that the rights and interests of the native title holders are suppressed, rather than extinguished. 47 The applicant would then draw attention to that part of the preamble to the NTA, set out above, that states that justice requires that compensation on just terms must be provided to the holders of native title if acts that extinguish native title are to be validated. The applicant would argue that the NTA should be interpreted liberally in order to protect native title. Any ambiguity should be resolved in favour of the intended beneficiary. Thus, the applicant would submit: The approach to the construction of the relevant provisions of the NTA which the Applicants wish to take in this case as set out in [9.2(a)] of the Further Amended Statement of Facts, Issues and Contentions, would result in the suppression rather than the extinguishment of the relevant native title rights and interests. This would clearly be a more beneficial outcome for the native title holders than the construction which is urged by the Respondent… 48 As to the contention advanced in [9.2(c)] the applicant notes that, in the original form 4 compensation application, it only pleaded the case that is now pleaded, in the alternative, in [9.2(c)] of the statement of facts, issues and contentions. That is, if the vesting of the reserve was a previous exclusive possession act, then the compensation claim group are entitled to compensation under s 23J of the NTA. The applicant notes that while that application form was filed on 29 March 2012, it has taken the State approximately 11 months to decide that this now alternative claim should be summarily dismissed and provides no explanation for its delay in seeking to have that part of the claim dismissed. 49 Nonetheless the applicant accepts that the decision in Ward, particularly at [258], is against this alternative argument. However, it again submits that if its compensation application may become a test case there is every likelihood that the legal issues raised will ultimately progress to the High Court and, if it does, it would be open to the High Court to reconsider its decision in Ward in this respect. It is on that basis that the applicant says its alternative argument in [9.2(c)] has been included "for the sake of completeness". 50 The applicant, in respect of the State's further contentions, that the State identifies as the second problem with [9.1], notes that the State contends that the reservation of the land took place before the vesting, albeit that both occurred on the same day; and that the State also accepts that the reservation land was inconsistent with the continued existence of a native title right to control the use of or access to the land and was a category D past act validated by s 19 of the NTA and s 5 of the State Validation Act; and that the reservation was subject to the non-extinguishment principle. 51 The applicant wishes to submit that in those circumstances, if native title existed at that time, the native title holders have an entitlement to compensation under s 17(2) of the NTA in respect of that "act". The entitlement to compensation under s 51 of the NTA is an entitlement on just terms to compensate the native title holders for any "loss, diminution, impairment or other effect of the act on their native title rights and interests". The applicant would argue that the reservation of the land necessarily caused "loss, diminution [and] impairment" because it suppressed any native title right to control the use of or access to the land and made the native title holders' rights and interests susceptible to extinguishment through the "subsequent" vesting of the land. 52 The applicant submits that if, as the State maintains, the vesting of the reserve validly extinguished (as opposed to suspended), any existing native title rights and interests, the native title holders are entitled to compensation under the RDA. However, the effect of s 45 of the NTA is to provide that the assessment of that compensation is to be undertaken having regard to s 51 of the NTA. Accordingly, the applicant submits the native title holders would have a further entitlement, on just terms, to compensation for this further "loss, diminution, impairment or other effect" of the vesting on their native title rights and interests.