Native Title Hot Spots No.9, April 2004 Contents Page RECENT CASES 1 New cases — Tribunal alert service 1 Proposed determination of native title 1 Neowarra v Western Australia [2003] FCA 1402 1 Determination of native title 19 The Lardil Peoples v State of Queensland [2004] FCA 298 19 Gale v Minister for Land and Water Conservation (NSW) [2004] FCA 374 29 Applications to vacate trial and for mediation program 35 Bennell v Western Australia [2004] FCA 228 35 Northern Territory of Australia v Doepel (No. 2) [2004] FCA 46 36 Review of decision to refuse financial assistance 38 Tucker v Aboriginal and Torres Strait Islander Commission [2004] FCA 134 38 Evidence — order sought that rules not to apply 40 Harrington-Smith v Western Australia (No 8) [2004] FCA 338 40 Disclaimer This information is provided by the National Native Title Tribunal as general information only. It is made available on the understanding that neither the National Native Title Tribunal and its staff and officers nor the Commonwealth are rendering professional advice. In particular, they: • accept no responsibility for the results of any actions taken on the basis of information contained in this newsletter, nor for the accuracy or completeness of any material it contains; and • to the extent allowed by law, expressly disclaim all and any liability and responsibility to any person in respect of the consequences of anything done or omitted to be done by that person in reliance, either wholly or partially, upon the information contained herein. It is strongly recommended that all readers exercise their own skill and care with respect to the use of the information contained in this paper. Readers are requested to carefully consider its accuracy, currency, completeness and relevance to their purposes, and should obtain professional advice appropriate to their particular circumstances. This information does not necessarily constitute the views of the National Native Title Tribunal or the Commonwealth. Nor does it indicate any commitment to any particular course of action by either the Tribunal or the Commonwealth. Recent Cases New cases — Australia. It included a number of reserves, some for the use and benefit of Aboriginal Tribunal alert service people, some pastoral leases, some of which The Tribunal’s library provides a bi-weekly is held by the Indigenous Land Corporation, service that alerts subscribers by email to parts of the waters of Walcott Inlet and Prince unreported judgments and some other Frederick Harbour and several large areas of information dealing with native title and related unallocated Crown land. issues. Hyperlinks are included. Subscribers will Extinguishment—general also be notified if and when judgments are reported. If you wish to subscribe, please email His Honour Justice Sundberg set out NTA’s [email protected]. scheme dealing with extinguishment and derived a number of propositions from the High Proposed determination of Court in Western Australia v Ward (2002) 191 native title ALR 1—at [399] to [423] and see summary of that case in Hot Spots Issue No. 1. Neowarra v Western Australia [2003] Onus of proof FCA 1402 Sundberg J noted that: Sundberg J, 8 December 2003 ■ while native title claimants have the ultimate Issue onus of proving that their native title has not This summary covers the court’s findings on been extinguished, the party asserting the extent of extinguishment of native title extinguishment carries an evidential onus of rights and interests in this case. For a proving the nature and content of the summary of the findings in relation to s. executive act; 223(1)(a) and (b) of the Native Title Act 1993 ■ absent proof of the executive act, the court (Cwlth) (NTA) see Hot Spots Issue No. 8. has no basis for finding extinguishment; Briefly, for the purposes of those provisions, the court found that the evidence supported ■ the discharge of the evidential onus may be the existence under traditional law and custom assisted by the ordinary presumptions of of a right amounting to the right to possession, regularity and continuance—at [431], citing occupation, use and enjoyment of the area the majority of the Full Court in Western covered by the application to the exclusion of Australia v Ward (2000) 99 FCR 316 at [117] all others that was held communally by the and [120]. Wanjina-Wunggurr community. However, it was noted that it may be necessary to Validity of pastoral leases ‘unbundle this comprehensive right into the The native title claimants contended that some component parts asserted by the applicants of the historical pastoral leases had never, in and to consider whether these components are fact, been granted. In the case of many of the in relation to land and waters’—at [382]. This is earliest series of pastoral leases, no what the court went on to consider. instruments of lease were produced. It was argued that the issue of an instrument of lease Non-native title rights and interests was an indispensable requirement for the The area covered by the applications in this disposal of any interest in land. The State of case was in the Kimberley region of Western Western Australia relied upon tenure 1 documents, such as public plans and a register ■ it is destructive of economic enterprise, if of pastoral leases, collated by the state’s Land the citizen cannot rely upon assurances of Claims Mapping Unit (LCMU), the evidence of public authorities. This has long been the acting manager of LCMU and the recognized with respect to title to land—at presumption of regularity: i.e. where acts are of [436] to [441]. an official nature, or require the concurrence of His Honour found that the Land Regulations official persons, a presumption arises in favour the claimants relied upon did not impose of their due execution. The ordinary rule is that ‘essential preliminaries’ but rather conferred a everything is presumed to be rightly and duly power to dispose of waste lands of the Crown performed until the contrary is shown: Broom’s and described the manner in which the power Legal Maxims 10th ed (1939) at page 642. was to be exercised: In considering the authorities on point, The [legislative] purpose behind [the] Sundberg J noted (among other things) that: Regulations was doubtless to encourage ■ an act done in breach of a condition the opening up of the Kimberley to profitable enterprise by the grant of interests in land. regulating the exercise of a statutory power To hold null and void leases not granted [in is not necessarily invalid and of no effect— accordance] with the formalities…would not traditionally, the courts have distinguished advance this purpose. It would cause between acts done in breach of an essential injustice to those who paid rent, and who preliminary to the exercise of a statutory went onto the land in reliance on the power or authority and acts done in breach approval of their applications. They were of a procedural condition for the exercise of “innocent” parties in the sense that the a statutory power or authority; requirements in [the Regulations] were ■ the test for determining validity is to ask imposed on the Governor and not on them, and they had no control over whether the whether it was a purpose of the legislation Governor discharged his duties—at [442]. that an act done in breach of the particular provision should be invalid; Sundberg J held that the same reasoning applied to the grant of pastoral leases in similar ■ courts have always accepted that it is circumstances under the Land Regulations unlikely that it was a purpose of the 1882 and 1887; the Land Act 1898 (WA); and legislation that an act done in breach of a the Land Act 1933 (WA)—at [448], [452], [456] statutory provision should be invalid if public and [462] to [463]. inconvenience would be a result of the invalidity of the act; His Honour was not prepared to find that a lease came into existence in relation to an ■ when the provisions being considered relate application form that contained annotations to the performance of a public duty, holding suggesting the application for the lease never null and void acts done in neglect of that came to completion—at [457]. duty would work serious inconvenience or injustice to persons who have no control Validity of reserves over those entrusted with the duty and, at The applicant argued that many of the the same time, would not promote the main reserves purported to exist in the state’s tenure object of the legislature. In these information were never validly created circumstances, the courts usually hold that because of a failure to fulfil legislative breach of the duty, although punishable, requirements, namely the gazettal of the does not affect the validity of the acts done; reserve or, where gazetted, the absence of a 2 full and complete description of the reserve. If his Honour was wrong in his conclusion in The state relied on the presumption of cases where no gazettal was in evidence, then regularity: i.e. where acts are of an official he would have applied this reasoning to those nature, or require the concurrence of official cases too—at [570]. persons, a presumption arises in favour of their Rights conferred by pastoral leases due execution. The ordinary rule is that everything is presumed to be rightly and duly As was noted in Western Australia v Ward performed until the contrary is shown: Broom’s (2002) 191 ALR 1 at [78], the question of Legal Maxims 10th ed (1939) at page 642. whether rights of third parties, such as the holder of a pastoral lease, are inconsistent with In relation to the absence of a gazettal notice, claimed native title rights and interests ‘is an Sundberg J saw no reason as to why the objective inquiry which requires identification ‘commonsense’ observations about the of and comparison between the two sets of presumption of validity should not apply to rights’ i.e.