Daniel v Western Australia [2005] FCA 178 (4 March 2005)

NATIVE TITLE – determination – issues arising from minute of proposed determination – whether effect of pastoral lease open to further submission – motion for leave to reopen – effect of reserve for a church site – whether ‘authority of the Crown’ applies only to agent of Crown – whether act ‘attributable to the State’ – whether road reserve has extinguishing effect when roads constructed over part of dedicated area

Native Title Act 1993 (Cth) ss 23B(7), 23B(7)(a), 24KA(3), 228(2), 228(3)(b)(ii), 239, 251D, 253

Land Act 1933 (WA) ss 7, 164, 164(2)(b)
Land Administration Act 1997 (WA) s 28
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 5, 12J, 12J(1)(a)

Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 cited
Daniel v State of Western Australia [2004] FCA 849; (2004) 208 ALR 51 cited
Daniel v State of Western Australia [2003] FCA 666 cited
Daniel v State of Western Australia [2003] FCA 1425 cited
Erubam Le (Darnley Islanders) v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 cited
Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923; (2000) 104 FCR 380 applied

DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAD 6017 of 1996
and part of WAD 127 of 1997
and part of WAD 6256 of 1998

NICHOLSON J
4 MARCH 2005
PERTH

BETWEEN: AND: AND:	DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE FIRST APPLICANTS VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS
AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND:	THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM FIRST RESPONDENTS COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY RESPONDENTS 2A TELSTRA CORPORATION LIMITED THIRD RESPONDENTS (FORMER RESPONDENTS 2B) SHIRE OF ROEBOURNE FOURTH RESPONDENTS P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL FIFTH RESPONDENTS BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD SIXTH RESPONDENTS CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD EIGHTH RESPONDENTS DAMPIER SALT LTD NINTH RESPONDENT HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD TENTH RESPONDENTS NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD ELEVENTH RESPONDENTS MINERALOGY PTY LTD RESPONDENT 12A BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP RESPONDENTS 12B ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A MG CREASY RESPONDENT 14B RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS AUSI IRON NL TWENTY-THIRD RESPONDENTS
JUDGE:	NICHOLSON J
DATE OF ORDER:	4 MARCH 2005
WHERE MADE:	PERTH

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:

AND:

AND:

DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE
FIRST APPLICANTS

VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE
SECOND APPLICANTS

BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS
THIRD APPLICANTS

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM
FIRST RESPONDENTS

COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY
RESPONDENTS 2A

TELSTRA CORPORATION LIMITED
THIRD RESPONDENTS (FORMER RESPONDENTS 2B)

SHIRE OF ROEBOURNE
FOURTH RESPONDENTS

P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL
FIFTH RESPONDENTS

BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD
SIXTH RESPONDENTS

CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD
EIGHTH RESPONDENTS

DAMPIER SALT LTD
NINTH RESPONDENT

HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
TENTH RESPONDENTS

NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD
ELEVENTH RESPONDENTS

MINERALOGY PTY LTD
RESPONDENT 12A

BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP
RESPONDENTS 12B

ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL
THIRTEENTH RESPONDENTS

RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER
RESPONDENTS 14A

MG CREASY
RESPONDENT 14B

RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS
RESPONDENTS 14C

GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc)
FIFTEENTH RESPONDENTS

COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER
SEVENTEENTH RESPONDENTS

YATHALLA ABORIGINAL CORP
EIGHTEENTH RESPONDENT

MINGULLATHARNDO ASSOCIATION INC
NINETEENTH RESPONDENT

HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES
RESPONDENTS 19B

TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE
RESPONDENTS 19D

GEOFFREY & MICHAEL TOZER
TWENTIETH RESPONDENTS

GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER
TWENTY-FIRST RESPONDENTS

AUSI IRON NL
TWENTY-THIRD RESPONDENTS

1 These reasons address (1) issues arising in respect of the Minute of Proposed Determination of Native Title and (2) the first respondent’s notice of motion for leave to reopen its case in relation to additional extinguishing tenure and other interests. Written submissions have been received from the first respondents, supported where appropriate by the fourth respondents, and the first applicants.

2 As a consequence of exchange of written submissions between the parties, it is now agreed that the following are correctly included in the Minute of Proposed Determination filed by the first respondents on 21 October 2004:

3 It is also agreed that ‘Map 1’ be amended to include in the Legend, after the words ‘Part Telstra Area’ the words ‘(Peawah Loc 63)’.

4 This lease is included by the first respondents in Draft Determination, First Schedule, definition of ‘Ngarluma Total Extinguishment Area’ item (9), p 21 and definition of ‘Yindjibarndi Total Extinguishment Area’ item (5), p 28. The first respondents’ submission is that it should be included because:

6 In Daniel v State of Western Australia [2004] FCA 849; (2004) 208 ALR 51 (‘Daniel (2004)’) at [3], I declined to hear re-argument on the issue of whether certain pastoral leases wholly extinguished native title. I did so because the issue had been the subject of reasons previously delivered: Daniel v State of Western Australia [2003] FCA 666 (‘Daniel [2003] FCA 666’) at [535] and Daniel v State of Western Australia [2003] FCA 1425 (‘Daniel [2003] FCA 1425’) at [2]. It cannot now be accepted that the first applicants should be allowed to make submissions in relation to the extinguishing effect of this pastoral lease separately from the decisions made in relation to other pastoral leases which have been held to extinguish native title.

7 Pastoral lease 398/824 (Area no. 81) was referred to in Daniel [2003] FCA 666 at [98] and at [1098]. It is part of Mallina Station. It is relevantly indistinguishable from pastoral leases found to have wholly extinguished native title, namely, nos. 3114/1138 (corrected to 3114/1228), 3114/1173, 3114/1209 and 3114/716. I accept the submission for the first respondents that the omission of 398/824 from previous judgments appears to have been brought about by the omission of the lease from the submissions referred to in Daniel [2003] FCA 666 at [917].

8 Given these circumstances, I accept that pastoral lease 398/824 should be included in the Total Extinguishment Area in the Draft Determination. Had it not been omitted from the relevant submissions, it is clear that it would have been included with the other relevant pastoral leases.

9 This motion is supported by affidavits of Messrs Parr, Rowe, Seman, Farrar and Baulch.

10 In Daniel (2004) at [67] I examined the principles upon which leave to reopen should be approached. I seek to apply that statement of principles here.

11 I agree with the first applicants that the process of reopening needs to be brought to an end. I also accept that the evidence now sought to be adduced could by reasonable diligence have been previously discovered. Nevertheless, the application of all other principles in the abovementioned statement favours the grant of leave. The evidence is so material that the interests of justice require it. It would most certainly affect the result one way or the other to the extent of the interests concerned. There is no demonstrated prejudice to the first applicants in that the issues raised are the subject of submissions by them. There is a public interest in properly finalising the once up opportunity for determination of native title.

12 Additionally, for reasons which follow, I consider that the merits of the contentions on the matters the subject of the reopening support the grant of leave.

13 With some reservation, because it comes late and was avoidable, I therefore consider that leave should be granted in terms of the motion.

14 The additional extinguishing tenures the subject of the motion are as follows:

15 It is agreed that, leave being granted, Wickham High School should be included as reserve 46193 in the First Schedule, definition of ‘Ngarluma Total Extinguishment Area,’ item (13), p 25 of the Draft Determination.

16 This relates to reserve 46888 for the purpose of a ‘Church Site’. The first respondents contend that this is a previous exclusive possession act under s 23B(7), s 228(2) and s 253 of the Native Title Act 1993 (Cth) (the ‘NTA’). The act that is said to be the exclusive possession act is not the creation of the reserve, which did not take place before 23 December 1996, but the construction of a church on the site. The first respondents contend that the church was constructed after December 1975 and before 1987. On the evidence in the affidavit of Mr Farrar, I find it is more probable than not that the church was erected prior to 1980. This is because on 12 December 1975 the Under Secretary for Lands granted to the Bishop of Geraldton a Right of Entry to enable work to commence on Wickham Lot 138 where it was urgently required.

17 The construction of a building on Crown land was dealt with by s 164 of the Land Act 1933 (WA). Prior to 1980, s 164 prohibited ‘unauthorised’ use of Crown land (which it is submitted implicitly included the erection of any structure on Crown land). After 1980, s 164(2)(b) expressly prohibited erection of a structure on Crown land without ‘lawful authority’.

18 The first respondents contend that the act of construction was valid (if necessary, as a validated past act) and was a previous exclusive possession act under s 23B(7) of the NTA and s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the ‘TVA’). Paragraph (b) of s 23B(7) is applicable with respect to ‘any public work that commenced to be constructed or established on or before 23 December 1996’.

It is common ground that par (a) of that definition has no application to the case of the church. It is on par (b) that the first respondents rely.

20 The first applicants contend that the words in par (b) ‘with the authority of the Crown’ must mean more than just with the approval or permit of the Crown. It is submitted that otherwise the phrase would cover most things that may be constructed on Crown land which are solely for the benefit of one party and not in any way to be considered a ‘public work’. The term ‘authority of the Crown’ is often considered in the context of a person acting under the shield of the Crown or could be considered as the Crown: see for instance the discussion in Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 in relation to whether a person acting with the authority of the Crown could be guilty of an offence under the Aboriginal Heritage Act 1972 (WA). It is submitted that the term ‘the authority of the Crown’ refers to a concept of agency and acting for or on behalf of the Crown, rather than simply works done by a private person or organisation with the permission of the Crown. It is also submitted, the findings in relation to public works in other native title decisions so far do not relate to any buildings or other works operated or used for non-governmental purposes.

21 In reply the first respondents submit that the phrase ‘with the authority of the Crown’ means with the warrant of the Crown, for the following reasons. First, the Macquarie Dictionary (second edition) at p 112 defines ‘authority’ to include ‘a warrant for action; justification’, which is the correct meaning in this context. Second, par (a) of the definition of ‘public work’ refers expressly to things constructed ‘by or on behalf of the Crown’. The change to ‘with the authority of the Crown’ in par (b) signals a different meaning. That is to say, to interpret ‘with the authority of the Crown’ as referring to ‘a concept of agency and someone acting on for or on behalf of the Crown’ is to read par (b) of the definition as a mere restatement of par (a)(i), which could not be the legislative intention. Third, to read par (b) of the definition as confined to buildings that relate to the ultimate benefit of the Crown, rather than simply works done by a private person is to add to the definition a criterion not expressed. In any event, a church is not simply a work by a private person or organisation. A church can easily be categorised as public, in the same way as a park or hospital can. Accordingly, it is said the construction of the church was a public work.

22 In my view the textual difference between the reference to the Crown in par (a) and par (b) of the definition of ‘public work’ supports the submissions of the first respondents on this issue. I therefore consider that the reference to authority should be read as referrable to its normally understood meaning of providing justification by the grant of approval or permit. That would not mean wide application of the section in an inappropriate way because the grant of authority is one conditioned by application of the Land Act and so only applicable to private persons in circumstances considered to properly attract that grant of authority.

23 Reference to the affidavit of Mr Farrar shows that on 29 October 1975 the Under Secretary for Lands accepted that Wickham Lot 138 should be ‘made available’ to the Roman Catholic Church as a Crown Grant in Trust. That was not a lawful authority to commence construction. However, the grant of a Right of Entry made on 12 December 1975 was expressly made ‘to enable work to commence’. That is to be understood in the context of the letter from the Bishop of Geraldton to the Under Secretary for Lands dated 2 December 1975 in which it was made clear that the parishioners were anxious to ‘commence work on the building of a new church’. In my view this establishes that the church was a building constructed ‘with the authority of the Crown’.

24 Section 23B(7)(a) also requires as a pre-condition of an act being a previous exclusive possession act that it is valid. The first question is whether the act was valid under the laws of the State. The first respondents contend that lawful authority was given, relying on the affidavit of Mr Farrar sworn 29 September and the circumstances of grant summarised above. They contend that the authority that was granted was sufficient in law for the purposes of s 164, even though at all relevant times the Land Act contained no provision for formality in granting authority to use Crown land (including to build upon Crown land).

26 The further aspect is whether there was any invalidity by reason of native title. Such invalidity could only arise by operation of the Racial Discrimination Act 1975 (Cth), the church having been built after 31 October 1975. The TVA provides for confirmation of extinguishment under Pt 2B in s 12I and s 12J. The former is not applicable here as there is no grant of freehold or a lease. The latter applies to public works but only provides for extinguishment of previous exclusive possession acts under s 23B(7) of the NTA where those are ‘attributable to the State’.

27 The phrase ‘attributable to the State is defined by s 239 of the NTA as follows:

28 The first applicants submit that the construction of the church is not ‘attributable to the State’. It is contended that none of the requirements of s 239 are satisfied here. It is said this case is quite different from that in Erubam Le (Darnley Islanders) v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 where the works were constructed by the local council and the State. The term ‘under a law of the State’ must mean more than just a private person or organisation constructing their own building where such a building requires the permit of the State before it can be constructed as that would cover most buildings.

29 In reply the first respondents submit that because lawful authority for construction was given pending the creation of the reserve, the construction of the church was done by a person ‘under a law of...the State...’, namely the Land Act, so that the act of construction was attributable to the State within the requirements of s 239 of the NTA.

30 The phrase ‘under a law of ...the State...’ is in different terms to either of the phrases in issue in s 253 of the NTA, namely ‘by or on behalf of the Crown’ and ‘with the authority of the Crown’. The phrase now in issue arises in the context of s 239. That section is concerned with attribution. The Macquarie Dictionary at p 106 defines ‘attribute’ to include the meaning of ‘something attributed as belonging’. Paragraph (a) and par (b) include acts done by the Crown and the Parliaments of the Commonwealth, State and Territories; that is, acts intrinsically belonging to the State. It is in that context that par (c) must be understood. When it refers to ‘any person under a law of the Commonwealth, the State or the Territory’ it is speaking of a person who is given the authority of the State to do that act. It therefore seems to me that it is not addressing a person who has obtained the authority of the State under a provision in a law of the State; it is someone whose act is attributable to the State because the State by a law has authorised that person to do the act, not merely authorised all persons to apply for an authority by some process. Thus understood, par (c) is consistent with the notion of ‘attributable’ and consistent with pars (a) and (b) in satisfying the element of closeness to the State and so belonging to it.

31 It follows that I do not consider the act of construction can satisfy the requirement of s 12J(1)(a) of the TVA that it is a previous exclusive possession act which is ‘attributable to the State’. Likewise it cannot satisfy the same requirement in s 5 of the TVA which validates every past act ‘attributable to the State’.

32 The first respondents submit in the alternative that if native title has not therefore been extinguished in the area of reserve 46888 by the construction of the church, the creation of the reserve in 2002 is a ‘past act’ under s 228(3)(b)(ii) of the NTA. That subparagraph provides that, subject to subs (10), an act that takes place on or after 1 January 1994 is a past act if it takes place ‘in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made’. The first respondents submit that the affidavit evidence of Mr Farrar establishes that there was a commitment, arrangement or undertaking given in the 1970s by the State to the Roman Catholic Church that the area in question would be reserved for a church.

33 Reserve 46888 was created on 19 August 2002, that is after 1 January 1994. The evidence of Mr Farrar satisfies me that the State in creating that reserve gave effect to a commitment, arrangement or undertaking made to the Roman Catholic Church before 1 July 1993 of which there is written evidence created at or about the time the commitment, arrangement or undertaking was made.

34 Therefore the creation of the reserve was a category D past act to which the
non-extinguishment principle applies and reserve 46888 should be included in the Second Schedule as an ‘other interest’.

35 A section of the Point Samson-Roebourne Road was constructed by the Main Roads Department of Western Australia in 1982, and a section of Spinifex Drive and Tamarind Place and Hakea Road were constructed by the Main Roads Department of Western Australia in 1984: see affidavit of Mr Seman and aerial photograph in affidavit of Mr Rowe. The construction of the roads by the Crown were public works commenced before 23 December 1996. It is not in dispute that the acts of construction were valid (if necessary, as validated past acts) and are previous exclusive possession acts under s 23B(7) of the NTA and s 12J of the TVA which wholly extinguished native title over the constructed roads and the area necessary or incidental to the construction of the roads.

36 On 6 March 2002 and 13 June 2002, sections of the Point Samson-Roebourne Road, a section of Spinifex Drive and Tamarind Place and Hakea Road were dedicated as new roads pursuant to s 28 of the Land Administration Act 1997 (WA): see affidavit of Mr Farrar sworn 29 September 2004.

37 Although the area of the constructed roads does not occupy the whole of the area dedicated as a new road, the first respondents submit that the whole of the dedicated area is necessary or incidental to the construction and maintenance of the road and is therefore part of the public work (see s 251D of the NTA). Support is sought in the decision of Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923; (2000) 104 FCR 380 at [127]. Olney J held that, having regard to the physical environment in the remote areas of Northern Territory where weather conditions may necessitate temporary diversions, it is not unreasonable to treat the area of the road as the whole of the area set aside to be used for the road. The first respondents contended the same considerations apply in the Pilbara region and therefore native title is extinguished over the whole of the areas of the dedicated roads (which appears in Deposited Plans 214781 and 214782).

38 Alternatively, the first respondents submit, to the extent some of the area dedicated as roads in 2002 is not the subject of the earlier public works which have wholly extinguished native title, the dedications are valid under s 24KA(3) of the NTA and the
non-extinguishment principle applies (see s 24KA(1)(b)(i) and s 24KA(2)(a)). Those dedicated areas should be listed in the Second Schedule to the determination of native title as ‘other interests’.

39 The first applicants argue that as the whole of the constructed roads do not occupy the whole of the area dedicated as a new road, those areas cannot be considered as necessary or incidental to the construction and maintenance of the roads and as forming part of the public work. It is contended that specific evidence should be tendered to establish that the areas are necessary or incidental. Also it is submitted that the decision in Wandarang is distinguishable on the basis that the roads in question here concern roads in or close to towns and built-up areas, not in remote areas. In any event, it is said that the decision is not binding.

40 In Wandarang at [127], Olney J accepted that there can be no hard and fast rule applicable to all roads in every part of Australia, having regard to the nature of the physical environment in the remote areas and the effect that weather conditions have on many roads necessitating temporary diversions. The area in which the roads are located is as much subject to the same weather conditions even though proximate to living areas. Proximity to settlement may be more likely to create problems of usage in the wet season, necessitating resort to the area on which the road is not presently constructed. I am therefore unable to distinguish the reasoning in Wandarang. I am therefore of the view that, as in that case, it is appropriate to treat each of the road areas as having been set aside to be used for roads. They therefore extinguish native title over the whole of the dedicated areas.

41 The draft determination should be amended to reflect these reasons. Steps should also be taken to now finalise the determination so that it may be handed down.

(a)	Lease I88601 (First Schedule, definition of ‘Ngarluma Total Extinguishment Area’, item (8), p 21);
(b)	section of road 390 shown in Government Gazette 31 August 1893 p 869 (which was omitted from the Draft Determination but should be included in First Schedule, definition of ‘Ngarluma Total Extinguishment Area’, item (10), p 23);
(c)	road 3705 (Portion of Point Samson – Roebourne Road) (First Schedule, definition of ‘Ngarluma Total Extinguishment Area’, item (10), p 23);
(d)	road on Deposited Plan 217003 (First Schedule, definition of ‘Ngarluma Total Extinguishment Area’, item (10), p 23);
(e)	Reserve 46200 (Second Schedule, par (c), p 39);
(f)	Dampier to Bunbury Natural Gas Pipeline (Second Schedule, par (f), p 40);
(g)	dedicated roads (Second Schedule, par (h), p 40).

(a)	the construction of Wickham High School on reserve 46193;
(b)	the construction of Roman Catholic Church on reserve 46888;
(c)	the construction of a section of the Point Samson-Roebourne Road;
(d)	the construction of a section of Spinifex Drive;
(e)	the construction of Hakea Road;
(f)	the construction of Tamarind Place.

(a)	any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:...
(b)	a building that is constructed with the authority of the Crown, other than on a lease.’

(a)	the Crown in right of the Commonwealth, the State or the Territory; or
(b)	the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or
(c)	any person under a law of the Commonwealth, the State or the Territory.’

Counsel for the First Applicants:	Ms C Tan

Solicitor for the First Applicants:	Yamatji Maripa Land and Sea Council

Counsel for the Third Applicants:	Mr RI Viner QC

Solicitor for the Third Applicants:	Kitto and Kitto

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6017 OF 1996 and part of WAD 127 of 1997 and part of WAD 6256 of 1998

JUDGE:	NICHOLSON J
DATE:	4 MARCH 2005
PLACE:	PERTH

(a)	through oversight it was previously omitted;
(b)	however, its effect on native title is legally indistinguishable from the other pastoral leases in definition of ‘Ngarluma Total Extinguishment Area’ item (9), p 21 and definition of ‘Yindjibarndi Total Extinguishment Area’ item (5), p 28.

(a)	they contest the legal basis for the presence of any pastoral lease in definition of ‘Ngarluma Total Extinguishment Area’ item (9), p 21 and definition of ‘Yindjibarndi Total Extinguishment Area’ item (5), p 28; and
(b)	if leave is to be granted to argue the inclusion of pastoral lease 398/824, then the legal basis for its inclusion in definition of ‘Ngarluma Total Extinguishment Area’ item (9), p 21 and definition of ‘Yindjibarndi Total Extinguishment Area’ item (5), p 28 should also be reagitated.

Counsel for the First Respondents:	Mr KM Pettit SC with Mr S Wright
Solicitor for the First Respondents:	Crown Solicitor’s Office

Solicitor for the Second Respondents:	Australian Government Solicitor

Solicitor for the Third Respondents:	Blake Dawson Waldron

Counsel for the Fifth Respondents:	Mr G Hiley QC

Solicitor for the Fifth Respondents:	Jackson McDonald

Solicitor for the Eighth, Ninth and Tenth Respondents:	Blake Dawson Waldron

Counsel for the Eleventh Respondent:	Mr M McKenna

Solicitor for the Eleventh Respondent:	Hunt & Humphry

Counsel for the Fifteenth Respondent:	Mr M McKenna

Solicitor for the Fifteenth Respondent:	Hunt & Humphry

Date of Last Written Submissions:	19 November 2004

Date of Judgment:	4 March 2005

Federal Court of Australia

Daniel v Western Australia [2005] FCA 178 (4 March 2005)