2 April 2021
What you need to know
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Two recent Federal Court decisions provide a reminder that evidence of the valid grant of interests at general law is the backbone of any argument that native title has been extinguished.
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In Nyamal Palyku Proceeding (No 2) [2020] FCA 788, the Federal Court found that the grant of a special lease was not valid at general law, so did not extinguish native title. Importantly, the Court noted that the presumption of regularity will not cure all process defects.
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In Wilson v State of South Australia (No 4) [2020] FCA 1805, the Federal Court was not satisfied by patchy evidence of the existence of a lease, so made no extinguishment finding. The Court also held that the construction of a golf course did not extinguish native title on the basis that it was not "major earthworks".
What you need to do
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Be aware that any assessment of whether native title has been extinguished requires evidence of the grant of the inconsistent tenure and its validity at general law. Assembling the evidence can be a painstaking task.
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Do not assume that extensive land use will necessarily amount to extinguishment. For public works to amount to extinguishing major earthworks there needs to be significant disturbance to the land itself.
Reminder that only grants that were validly made at general law can have the effect of extinguishing native title
Although "validity" is often glossed over in discussions about extinguishment of native title, general law validity is a precondition to validity under the Native Title Act 1993 (Cth) and to a finding that native title has been extinguished by a grant of inconsistent tenure.
Two recent decisions of the Federal Court addressed challenges to general law validity by native title parties and highlighted the difficulties of proof.
Successful challenge to general law validity prevents finding of extinguishment – Nyamal Palyku Proceeding (No 2)
In Nyamal Palyku Proceeding (No 2) [2020] FCA 788 (Nyamal), the Federal Court was asked to determine whether the creation and vesting of a reserve and the grant of a special lease were valid at general law.
The Court ultimately found that the grant of the special lease was invalid at general law and therefore could not have any effect on native title. However, the reserve was valid at general law and extinguished native title.
Court finds grant of the special lease was invalid at general law
The Court was required to consider the validity of a special purpose lease (Special Lease) granted in 1957 under section 116 of the Land Act 1933 (WA) for the purpose of 'use of Natives'.
The native title claim group argued that the Special Lease was not validly granted under the Land Act because:
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'use of Natives' was not a prescribed purpose in section 116;
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the grant of the Special Lease could not be saved by the Governor's approval in the Government Gazette because the notice requirements had not been complied with;
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there were irregularities in the form of the application for and notice of the grant, which its registration did not rectify; and
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the Minister for Native Welfare did not have power under the Native Welfare Act 1905 (WA) to acquire the land of the Special Lease other than for the purpose of sale or lease 'to a native' (as opposed to 'for the use of Natives').
The Federal Court held that it was bound to follow the approach of the High Court in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 (Forrest). Forrest concerned a mining tenement applicant's failure to comply with the statutory regime in the Mining Act 1978 (WA). The Court determined that the statutory regime for disposing of Crown lands in Western Australia was broadly similar to that for the disposal of mineral resources in Forrest.
The Court noted that where a public official attempts to act in the course of their duties, a presumption arises that all conditions necessary for that exercise are fulfilled – the presumption of regularity. However, in this instance, there were several deviations from the statutory conditions in section 116. Specifically, granting the Special Lease:
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before receiving an application in the prescribed form;
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for a purpose, notice of which was not published in the Government Gazette; and
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before any of the four required notices of application for the lease were published in the Government Gazette
The Court held that the presumption of regularity could not regularise the State's acts in these circumstances – the presumption was rebutted by evidence that formal conditions were not followed.
Given that the Special Lease was invalid, it could not extinguish native title.
Court applies principles of statutory interpretation to find creation of reserve and its vesting valid at general law
The native title group argued that the reserve was not validly created because the purpose for its creation – 'commonage' – was not a listed purpose under the Land Regulations 1887 (WA).
The Court was required to consider the terms of the historical legislation and apply principles of statutory interpretation to determine the question. Ultimately, the Court was satisfied that the reserve had been validly created at general law. The Court also rejected the native title group's argument that the reserve had been invalidly vested.
Accordingly, the Court found that the valid vesting of the reserve extinguished native title.
More principles governing extinguishment considered – Wilson v State of South Australia (No.4)
As in Nyamal, the Federal Court in Wilson v State of South Australia (No 4) [2020] FCA 1805 (Wilson) considered whether a lease, on which an extinguishment assertion turned, was in fact valid (or even existed at all).
The Court also considered whether a public golf course was a "major earthworks" "public work". This decision is significant because there has been little judicial consideration of the meaning of "major earthworks" under the public works extinguishment provisions of the Native Title Act.
There was not enough evidence to establish the grant of a lease
The golf club argued that it had been granted a "community purpose lease" for the golf course land, which extinguished native title. However, no evidence of the grant of a lease was produced by the golf club or the claimed lessor, the local council.
The definition of "lease" in the Native Title Act is wide and relevantly includes a lease enforceable in equity.
The Court considered whether a lease enforceable in equity may have come into existence in this case. The Court noted that the definition of "lease" contemplates an oral agreement for a lease that the parties intend to be legally binding upon them, whether or not the formalities for a valid transfer of a legal interest in the land have been satisfied.
The definition of "lease" may also contemplate a situation where one party would be required to grant a lease in the absence of a contract in circumstances where a lease has been promised, and it would be unconscionable for that promise to be abandoned.
However, neither the council nor the golf club could produce an executed, unexecuted or even draft lease. Consequently, the Court was not satisfied that a lease had in fact been granted. It concluded that native title had not been extinguished in relation to the golf course by virtue of a lease.
Construction of a golf course does not comprise "major earthworks" and does not satisfy the definition of "public works"
The definition of "public works" in the Native Title Act includes "any major earthworks" which is defined as:
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…earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.
In this case, there was evidence that the golf course comprised scrapes, tee-off points, bunkers and fairways. The vast majority of the golf course comprised grassed areas that formed the fairways, together with vegetated surrounds.
The Court noted that disturbance to the land is an important element of "major earthworks". The focus should not necessarily be on the erection of fixtures or features directly on the surface of the land. What is required is a disturbance "to the land", and that disturbance must be "major".
The removal of vegetation or the reseeding of the land with grass did not cause "major" disturbance to the land, notwithstanding these works involved some grading with heavy machinery and significant human effort. The Court held that although these works altered the aesthetics of the land, it did not satisfy the legal test because it is necessary to have regard to the impact on the land both qualitatively and quantitively.
The Court referred to the Explanatory Memorandum to the Native Title Bill 1993 (Cth), as considered by Mansfield J in Margarula v Northern Territory (2016) 257 FCR 226 as being important in characterising the meaning of "major earthworks" in the context of the Native Title Act. In that decision, Mansfield J said the "major earthworks" definition was intended to cover large scale earthworks (e.g. dams) which permanently disturbed the land.
Ultimately, the Court held that construction of fairways and other features of the golf course were not "major earthworks" so did not constitute "public works" and therefore did not extinguish native title.
Key Insights
Although these decisions are not ground breaking, they provide a useful reminder that evidence of the valid grant of interests at general law is the backbone of any extinguishment argument. Native title parties continue to challenge general law validity in relation to discrete grants and land parcels in the context of both litigated and negotiated determinations of native title.
The Federal Court's findings about the definition of "major earthworks", which focused on disturbance to the land itself, not fixtures or features directly on the surface of the land, is also useful for parties considering whether native title has been extinguished by "public works".
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
