Kennedy, Lachlan --- "Lawn Hill's Pastoral Leases -- North Ganalanja & Bidanggu Aboriginal Corporation for the Waayni People v Queensland & CRA" [1995] AboriginalLawB 63; (1995) 3(78) Aboriginal Law Bulletin 17

• Lawn Hill’s Pastoral Leases – North Ganalanja &Amp; Bidanggu Aboriginal Corporation For The Waayni People V Queensland &Amp; Cra
• The Pastoral Lease Issue
• Procedural Issues

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Lawn Hill’s Pastoral Leases –

North Ganalanja & Bidanggu Aboriginal Corporation for the Waayni People v Queensland & CRA

North Ganalanja & Bidanggu Aboriginal Corporation for the Waayni People v Queensland & CRA

Federal Court of Australia, Jenkinson, Lee and Hill JJ

Unreported, 1 November 1995

by Lachlan Kennedy*

This was a decision of the Full Federal Court (comprising Jenkinson, Lee and Hill JJ) reviewing the decision of President French in Re Waanyi Peoples' Native Title Application (1995) 129 ALR 118. (See also' "Moral Shortcoming": Waanyi Peoples and Native Title" by Garth Nettheim, and 'Undermining the NNTT - Waanyi No. 1 and 2' by Richard Bartlett in Vol 3, 73 Aboriginal Law Bulletin 10 and 14.) In it, the effect of pastoral leases on native title was considered. The decision also considered the approaches to be adopted by the National Native Title Tribunal ('the NNTT') when determining, for the purposes of deciding whether to accept an application, whether prima facie a native title claim can be made out. The applicants argued that this involves an unacceptable exercise of judicial power.

The pastoral lease issue

The native title application related to an area of land which had been reserved for camping in 1907. Prior to this reservation, the land had been subject to a pastoral lease from 1883 ('the 1883 lease'). A second pastoral lease had been issued under the Land Act 1902 (Qld), after creation of the camping reserve, but the term of which commenced before the creation of the reserve ('the 1904 lease').

The native title application in relation to the reserve had been made by the Waanyi to the Native Title Registrar, who was of the view that, prima facie, the claim could not be made out. In accordance with s63(2) of the Native Title Act 1993 (Cth) ('the NTA'), she referred the application to the President of the NNTT. He found that there was evidence available which might be capable of demonstrating the existence of native title, if there had been no extinguishing act. He then proceeded to consider whether there had been an extinguishing act, and found that there had been. He based his decision on the effect of the 1883 lease, but concluded that the 1904 lease had the same effect. The issue of the effect of a pastoral lease on native title therefore arose in the context of determining, not whether native title existed, but whether the existence of either pastoral lease meant that the native title claimants could not make out a prima facie case. Accordingly, on appeal, the Federal Court was not determining the native title claim, but rather, whether the Waanyi should have had access to the processes of the NTA.

The majority of the Federal Court (fenkinson and Hill JJ) found that the President of the NNTT was correct in his refusal to accept the application, on the basis that since a pastoral lease had extinguished native title (although they based their conclusions on the 1904 lease, rather than the 1883 lease), the applicants had not made out a prima facie case. Lee J in dissent held that there was sufficient doubt as to the effect of the 1904 lease (particularly the time at which it was granted viz-d-viz the time the reserve had been excised) for the President to have accepted that prima facie the claim could have been made out.

No lease document could be found for the 1883 lease. However, the Court took the view that an inference which could reasonably be drawn from the facts was that the lease, had it been issued, would have been subject to a reservation permitting access by Aboriginal people. The Court was of the view that any conclusion the applicants could not make out a prima facie case because of the 1883 lease would be wrong (Hill J pages 39-42, Lee J page 9, Jenkinson J page 23).

It was in relation to the 1904 lease that the Court was divided. The tenure history of this lease was complicated in that, although not issued until 14 November 1907, its term commenced on 1 July 1904. However, on 22 March 1907, the then lessee, the Bank of New South Wales, had surrendered land to the Crown, including the land the subject of the claim. This land was declared to be a camping reserve on 8 July 1907. Hill J (with whom Jenkinson J agreed) took the view that the second pastoral lease took effect from 1904. He concluded that this lease extinguished native title, because the rights of exclusive possession held by the lessee (there was no reservation in favour of Aboriginal access) were inconsistent with the enjoyment of native title rights. He relied on principles in the judgements of Brennan J, and Deane and Gaudron JJ, in Mabo [No. 2] (Mabo v Queensland (No. 2] [1992] HCA 23; (1992) 175 CLR 1), that inconsistency of rights extinguishes native title (Hill J pages 65-68). He was not therefore concerned to determine whether the actual subjective intention of the Crown when it granted the lease was to extinguish native title. He did acknowledge that there would have been a question of degree had the lease been for a short term, but since the term of this lease was for 42 years, that was not an issue.

On the basis of Mabo (No. 2], he rejected the applicants' arguments that the question of extinguishment should be resolved by reference to the facts - that is, that an inconsistent grant might not extinguish native title if Aboriginal people actually continue to use the granted land (Hill J page 68, Jenkinson J page 25).

Lee J (in dissent) also found that there was no gap in title, or at least, at all times the party in possession of the land had a right to call for the issue of a lease. However, he was conerned to ascertain whether the Crown intended to extinguish native title by vesting in the grantee a legal interest in the land inconsistent with the continuation of native title (Lee J page 16). He considered that the vesting of the interest took place when the lease was actually issued (ie 14 November 1907), and therefore it did not vest an interest capable of extinguishing native title over the reserved area, which from 8 July 1907 had been excised from the lease (page 18). He thus did not have to decide whether a pastoral lease without a reservation in favour of Aboriginal people extinguishes native title.

However, he did discuss the arguments in favour of non-extinguishment. In particular he considered it would be a bold proposition to suggest that a lease to depasture stock, containing extensive reservations in favour of the Crown and third parties, demonstrated a clear and plain intention to extinguish native title (Lee J pages 22-23). He also considered that the historical context in which Queensland pastoral leases were issued was significant in assessing their effect on native title (Lee J pages 33-34). Since, in his view, the law did not conclusively determine that a pastoral lease had extinguished native title, the Native Title Registrar and NNTT President could not form an opinion that prima facie, the applicants' claim could not be made out (Lee J page 39).

Procedural issues

The Native Title Registrar had referred the application to the NNTT President in accordance with s63(2) of the NTA, because she was of the view that, prima facie, the claim could not be made out. After extensive inquiry, the President formed the same view, and directed the Registrar not to accept it.

In reaching this conclusion, the President formed a view of the law - namely, that any native title which may have existed was extinguished by the issue of a pastoral lease over the land. He also formed a view on questions of fact which were capable of supporting different inferences. On appeal, the Court unanimously confirmed that the President can form a view on disputed questions of fact or law. However, the Court was of the opinion that, given the very early stage of the proceedings in which the issues arose, inferences should have generally been drawn in favour of the applicants.

In his consideration of the claim, the President had sought written submissions from the respondents, and heard oral arguments. The Court considered that the President has a discretion to seek out such information as may be available in order to form a view as to whether claimants have made out a prima facie case. Further, the President is not confined to the material or issues considered by the Registrar. However, the acceptance process is not the trial of a matter, so an extensive process of fact-gathering is not appropriate to an assessment of the application for acceptance.

The Court was unanimous in finding that the President does not exercise judicial power when deciding whether the Registrar should accept an application. The Court took the view that the President's decision does not result in any permanent, binding or authorative decision. It is not a determination of native title, although applicants will be (at least temporarily) denied access to the benefits of the NTA. However, rejected applicants can bring a new claim in the NNTT or bring their claim in another jurisdiction. The President, in forming a view of the law, does not thereby decide any issue of law.

In arguing that the President exercises the judicial power of the Commonwealth when deciding whether a native title claim should be accepted, the applicants sought to rely on the High Court's decision in Brandy v HREOC ((1995) [1995] HCA 10; 127 ALR 1). The Federal Court took the view that this decision concerns the enforcement of provisions of the Racial Discrimination Act 1975 (Cth), and that no question of enforcement arose in relation to a decision by the President to accept or reject claims (Hill J page 25, Jenkinson J page 21).

Nevertheless, doubts remain about the constitutional validity of the NTA provisions relating to the enforcement of NNTT determinations similar to those found to be invalid in Brandy v HREOC. The Commonwealth Government has decided to amend the NTA to ensure that there is no question of the NNTT exercising judicial power. It has recently introduced legislation into the Parliament to amend the NTA to require native title claims to be made to the Federal Court. The Court, after mediation by the NNTT, would then make native title determinations (in some cases acting through Judicial Registrars). There would be no acceptance test for claims, so the process under consideration in this litigation would not carry over. However, the prima facie test would be retained for use by the Native Title Registrar in determining whether claims should be placed on the Register of Native Title Claims. Claimants would have to be registered to have access to the 'right to negotiate' provisions of the NTA. However, this would not affect the process of claims in the Federal Court.

The applicants have sought leave to appeal to the High Court. The special leave application is listed for 15 December 1995.

* This casenote is written in a personal capacity and does not purport to reflect the views of the Commonwealth Attorney-General's Department or of the Commonwealth.