Case: Neowarra v State of Western Australia [2003] FCA 1402
Outcome: applied
Section 22 of the NTA as originally enacted (cf s 240A of the current NTA ) provided that an impermissible future act is invalid to the extent that it 'affects native title'. Section 227 of the NTA as originally enacted provided that an act affects native title if it extinguishes native title rights and interests, or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The freehold grants were future acts that were not validated by any provision of the NTA , with the result that they were impermissible future acts under the NTA as originally enacted and appear to be invalid to the extent that they affect native title: see Neowarra v State of Western Australia [2003] FCA 1402 (' Neowarra ') at [586]. While it can be accepted that the freehold grants are valid insofar as they do not affect native title, they cannot have any extinguishing effect or confer rights that are inconsistent with the native title rights and interests I have found to exist. However, as a result of my finding later in these reasons that reserve 631 (which included 139 of the relevant freehold areas) was validly created, the native title rights and interests in respect of 139 of the relevant freeholds are not exclusive rights. It also appears that the remaining freehold lot was subject to a similar prior tenure or reserve. Accordingly, such of the rights and interests of the freehold owners as are not inconsistent with the rights and interests of the native title holders can co-exist with those native title rights and interests. 21 The State argued that, as the freehold grants were valid for some purposes, s 47B could not apply to the grants. I doubt that the argument is correct but nothing turns on it because, as explained above, the freehold grants appear to have had no extinguishing effect on native title with the consequence that there was no extinguishment to be disregarded under s 47B. In any event, no relevant occupation was established for the purposes of s 47B so the section would not apply to the areas covered by the 140 freehold grants. 63 However, the State contended for a different outcome in respect of areas covered by mining leases issued under the Mining Act 1978 (WA) ('the MA '). The State relied upon the extensive rights conferred under s 85 of the MA to use, occupy and enjoy the land in respect of which the mining lease was granted. The rights included the right to do all things that are necessary to carry out 'mining operations' in, on and under the land. The phrase 'mining operations' is given a wide definition in s 8 of the MA . The State also relied upon the decisions in Neowarra (at [522] and [613]) and Daniel (at [741], [768] and [822]) to contend that any permanent native title right to live on the land in respect of which a mining lease has been granted has been extinguished. 69 In Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536, I determined that the date 'when the application is made' is the date of the filing in the Court of the application for native title in respect of 'the area' referred to in ss 47A(1)(c) and 47B(1)(c). Plainly, 'the area' referred to in those sub-sections must be an area within the area the subject of a claimant application. However, as was explained by Sundberg J in Neowarra at [686] and [721], the area need not be the whole of the area claimed as that could lead to clearly unintended consequences in relation to the operation of ss 47A and 47B. Rather, the relevant area is the particular area with which each of the sections is concerned. 70 Textual, contextual and purposive considerations all point to 'the area' that is referred to in s 47A(1)(c) being 'the area' referred to in s 47A(1)(b). That is, 'the area' is the particular area the subject of the defined freehold estate, the defined lease, the defined vesting or the land expressly held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders. That was the view taken by Sundberg J in Neowarra (at [686]) and, in my view, is clearly correct. Insofar as there may be doubt about that matter, pars 5.45-5.49 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 , which inserted ss 47A and 47B, make it clear that the occupation is to be in respect of 'the land' the subject of the past 'land rights type' grant, trust, reservation or other historical act that would otherwise have extinguished native title in relation to that land. It follows that the occupation that must be established for the purposes of s 47A(1)(c) is an occupation in respect of the relevant 'area', that is the whole, rather than merely a part, of the particular area the subject of the freehold estate, lease, vesting etc. 71 The situation under s 47B differs from that under s 47A because s 47B requires that at the date the application is made 'the area' is not covered by a freehold estate, lease, reservation etc. However, as was pointed out by Sundberg J in Neowarra at [721], the relevant area for the purposes of s 47B is 'the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished'. That construction of s 47B is consistent with par 5.56 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 which states: 'Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the Court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act.' 72 It follows that the occupation that must be established for the purposes of s 47B(1)(c) must also be an occupation in respect of the whole, rather than merely a part, of the particular area in respect of which, but for s 47B, native title rights would be extinguished: see Neowarra at [758]-[760]. 77 This approach has been accepted and followed in a number of other cases (see, for example, Daniel at [938], Alyawar at 496 [193] and Neowarra at [682]). 95 In Neowarra at [697]-[698], Sundberg J considered the requirement in s 47A(1)(b)(ii) that the area be held expressly for the benefit of Aboriginal peoples. His Honour considered that 'expressly' meant not merely impliedly and not arising merely by inference. His Honour also referred to cases that had decided that for something to be express, rather than implied, it must arise directly from the language used and not by inference therefrom. 96 Sundberg J then applied the above criteria to an association incorporated under the ACA Act and stated (at [706]): 'The remaining question is whether, as they assert, the Rules of Kupungarri Aboriginal Corporation (under the ACA Act) show that Kupungarri holds the lease "expressly for the benefit of...Aboriginal peoples". Kupungarri's property is "available, at the discretion of the Committee, for the purpose of carrying out the objects of the Association". The objects in r 6 are all directed to the benefit of a group of Aboriginal people education, job training, housing, health services and so on. The Rules clearly and unmistakably disclose that Kupungarri's property is held by it for the benefit of Aboriginal persons. They make that explicit. There is no need to imply that from the Rules or any other source. The case falls within s 47A(1)(b)(ii).' 98 The remaining issue is whether the requisite occupation has been established in respect of area 354. I accept, as did Sundberg J in Neowarra at [708], that a combination of activities in the area can amount to occupation by claim group members, notwithstanding that the area is also occupied by the corporation. The problem with the claim under s 47A in respect of area 354 is that the activity relied upon is residence in one of the two houses on the area by a Yawuru claim group member. As explained above, s 47A requires occupancy of the whole of the area, not merely part of the area. Accordingly, the requisite occupancy has not been established. 99 The State argued that the area is not within s 47A and that there is no relevant occupation. This area is a freehold block in Broome at which Bidyadanga Aboriginal Community La Grange Inc (an Aboriginal Association incorporated under the ACA) conducts a sobering up centre. The association is not relevantly distinguishable from the associations above. For the reasons given in respect of area 354, the area is held expressly for the benefit of Aboriginal peoples. However, the involvement of some Yawuru persons, as well as others, in co-ordinating and using the centre is not sufficient to constitute occupation of the centre for the purposes of s 47A. 100 The State argued that this area is not within s 47A and that there is no relevant occupation. For the reasons given in respect of area 354, this area is held by Nirrumbuk Aboriginal Corporation expressly for the benefit of Aboriginal peoples. However, the requisite occupation at the date of the application has not been established by the evidence. 128 Although it was accepted by the parties that the resolution of the dispute involved matters of fact and degree, the State's submissions set out a number of useful examples and guidelines: 'In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 ( Hayes ) at page 109 (xiv) Justice Olney found that "it may well be inferred that 'recreation equipment' would be both a structure and a fixture." Again, at page 102 (viii), his Honour stated that "... there is no evidence of any building or structure in the nature of a fixture other than possibly a fence ..." Clearly Justice Olney regarded recreation equipment and fences as examples of structures that could be considered as public works for the purposes of the NTA . This accords with the ordinary meaning of structure being simply something "built or constructed". At page 108 of Hayes his Honour said: "Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here." The general principles can be summarised as follows: 217.1 The common law previously looked to the degree of annexation of an item; if substantially affixed, the item was a fixture, otherwise, it remained a chattel. 217.2 The importance of annexation has, however, declined over time, and the focus now is on the intention with which the item was put in place; if for better use or enjoyment of the land, the item is a fixture, for better use or enjoyment of the item, it is likely to be a chattel. There are two prima facie presumptions applied: 218.1 first, if an item is affixed to the land, it is presumed to be a fixture, and the burden of proof lies on those who assert it is not; 218.2 second, if an item rests by its own weight, it is presumed not to be a fixture, and the burden of proof rests on those asserting that it is. The presumptions may be rebutted by evidence to the contrary; for example, stone blocks resting by their own weight and placed to form a dry stone wall would be intended for better enjoyment of the land, and hence a fixture, whereas such blocks stacked in a builders yard would not. A concrete rail head or culvert for a drain, on the principles set out above, is more likely to have been put in place to enhance enjoyment of the land, hence would be a fixture, regardless of whether it is affixed or resting of its own weight. Likewise, it cannot be said as a matter of generality that playground equipment or pine bollard fencing are not fixtures, as it will depend upon the intention of the person or persons who bring it onto the land. In Daniel v State of Western Australia [2003] FCA 666 at [1047] Nicholson J found that water tanks and sewerage and waste water treatment plants were public work previous exclusive possession acts. In Sampi at [1126] and [1148] his Honour Justice French found a radio site constructed by Telstra to be a public work previous exclusive possession act. As to major earthworks, the Explanatory Memorandum to the Native Title Bill 1993 gave as examples: "... dams and weirs whose construction permanently and significantly disturbs or changes the land." Excluded from the examples given were digging wells, cultivating land for crops or establishing a walking trail in a National Park. ... In any event, as to the extent of the public works in each area, the First Respondent relies upon the decision of his Honour Justice Sundberg in Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [654] to [660] to the effect that: "Section 251D [NTA] is specifically directed to public works, and is plainly intended to operate in conjunction with ss 23B(7) and 23C(2). There is no reason to deny its beneficial function of ensuring that a public work has the benefit of adjacent land that is necessary for or incidental to the operation of the work, especially in relation to access to landlocked works."'