Australia - Principles Governing Extinguishment - There Is Still More To Learn.
Legal News & Analysis - Asia Pacific - Australia - Dispute Resolution
28 April 2020
What you need to know
- The decision in Roberts on behalf of the Widjabul Wia-Bal v Attorney General of NSW  FCA 1158 provides some very useful guidance about the application of section 47B of the Native Title Act 1993 (Cth) to reserves and permits to occupy in New South Wales.
- The decision in Bell on behalf of the Wakka Wakka People #3 v State of Queensland  FCA 2005 serves as a reminder that parties need to be able to produce evidence of every limb of the definition of "public works" in section 253 of the Native Title Act in order to rely upon them as evidence of the extinguishment of native title.
What you need to do
- Much Crown land in NSW is reserved for "future public requirements". Be aware that such a reservation is not a bar to the disregarding of prior extinguishment if the other pre-conditions are met.
- To successfully assert extinguishment of native title by a "public work", you need to be able to produce evidence addressing every limb of the Native Title Act definition.
Application of section 47B exclusion to NSW reserves and permits to occupy
The decision of Roberts on behalf of the Widjabul Wia-Bal v Attorney General of NSW  FCA 1158 (Roberts) provides some very useful guidance about the application of section 47B of the Native Title Act to reserves and permits to occupy in New South Wales.
We have written extensively about the interpretation of this provision in many earlier editions of Native Title Year in Review, most recently in 2018 in Prior extinguishment issue finally resolved by the High Court.
Section 47B of the Native Title Act provides that historical extinguishment of native title can be disregarded if, at the time the native title claim is lodged, that area is occupied by the claim group and certain exclusions do not apply. One of those exclusions is:
the area is covered by a reservation, proclamation, dedication, condition, permission or authority 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 (s47B(1)(b)(ii)).
In Roberts, the Court looked at the scope of this exclusion as a separate question to assist in the resolution of the Widjabul Wia-Bal native title claim. It considered the meaning of "public purposes" and "particular purpose" and concluded that "public purposes" may be general and not necessarily particularised. A reserve for "public requirements" would satisfy the definition.
It was the other limb of the exclusion that the matter turned on in this case: "is to be used".
The Court said at  that the "words 'is to be used' in s 47B(1)(b)(ii) require an intention on the part of the Crown to use the reserved land for public purposes or a particular purpose. That intention must be demonstrated on an objective basis, by reference to the relevant legislation and the reservation."
Applying this to the particular reserves, the Court held that:
|DETAILS OF RESERVATION||PUBLIC PURPOSE/ PARTICULAR PURPOSE||TO BE USED|
|A 1900 "Reservation from sale pending determination of a portion to set aside for public reservation"||Y||Y|
|A 1913 "Reservation from sale pending determination of a portion to set aside for the public purpose of public reservation"||Y||Y|
|A 1913 reservation "Reserved and exempted from lease generally"||N|
|A 2006 reservation for "future public requirements"||Y||N|
|A 1979 "permission to occupy" Crown land for grazing purposes||Y||Y|
The 2006 reservation for "future public requirements" did not meet the "is to be used" test because before the land could be used it would need to be assessed under the Crown Lands Act 1989 (NSW).
Evidence needed to prove extinguishment by "public works"
The decision in Bell on behalf of the Wakka Wakka People #3 v State of Queensland  FCA 2005 serves as a reminder that parties need to be able to produce evidence of every limb of the definition of "public works" in section 253 of the Native Title Act in order to rely upon them as evidence of the extinguishment of native title.
The works in question were a pipeline, stock dip, rest area, stock watering infrastructure and a stock route. The evidence concerning some of these works was vague and uncertain because of the time that had passed since they were constructed or established.
The Court noted that the party asserting extinguishment of native title has the evidentiary onus of proving the nature and content of the act said to extinguish native title.
Although the facilities were located on what was now Crown land, there was not sufficient evidence they were constructed "by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities".
Only the pipeline was determined to be a public work. Some findings that might prove useful in future proceedings include:
- A stock dip appears to fall within the definition of a "structure that is a fixture" or "major earthworks";
- A rest area is not "necessary for or incidental to" the operation of a bridge that is a "public work", so is not a "public work" itself under section 251D of the Native Title Act;
- A pipeline owned and constructed by Sunwater and associated easements was a fixture constructed by a statutory authority of the Crown and was "public work" that extinguished native title.
For further information, please contact:
Leonie Flynn, Ashurst