Dorante v Minister for Natural Resources and Mines & Ors; Sabatino v Minister for Natural Resources and Mines & Ors [2017] QLC 15

* Pursuant to the Land Court Rules 2000, rules 21 (Power to correct mistakes), this is a corrected decision, issued on 6 April 2017, and replaces the original decision issued on 3 April 2017. LAND COURT OF QUEENSLAND CITATION: Dorante v Minister for Natural Resources and Mines & Ors; Sabatino v Minister for Natural Resources and Mines & Ors [2017] QLC 15* PARTIES: In appeal No. ATS1140-16: Seriako Dorante (appellant) v Minister for Natural Resources and Mines (first respondent) and Torres Strait Island Regional Council (second respondent) Pearson Wigness Harry Seriat Isaac Savage Milton Savage (interlocutory applicants) In appeal No. ATS1141-16: Peter Christopher Sabatino (appellant) v Minister for Natural Resources and Mines (first respondent) and Torres Strait Island Regional Council (second respondent) Pearson Wigness Harry Seriat Isaac Savage Milton Savage (interlocutory applicants) -- 1 of 28 -- 2 FILE NO/s: ATS1140-16 ATS1141-16 DIVISION: General PROCEEDING: Appeals against Minister’s decisions Application for joinder as party to the appeals DELIVERED ON: 3 April 2017 DELIVERED AT: Brisbane HEARD ON: 2 March 2017 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER/S: 1. The application for the interlocutory applicants to be joined as a party to the appeals is refused. 2. The interlocutory applicants have leave to intervene to the extent that they may make submissions about the nature and scope of the appeal and whether their claim is a practical obstacle to the grant of the leases. 3. The appeals are allowed. 4. The Minister is directed to change the statement of reasons (obstacles) the subject of each appeal to state that there is no practical obstacle to the grant of a lease to satisfy the lease entitlement. CATCHWORDS: PROCEDURE– CIVIL PROCEDINGS IN STATE AND TERRITORY COURTS– INTERLICUTORY APPLICATIONS- Application for joinder of party – where interlocutory applicant sought to be joined as party whose presence is desirable, just or convenient – whether Uniform Civil Procedure Rules 1999 r 69 excluded by the Aboriginal and Torres Strait Islander Land Holding Act 2013 s 33(5) which specified the parties to the statutory appeal STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESERVATION OF ACCRUED RIGHT – CONTRARY INTENTION – Whether the appellants accrued the right to the grant of leases under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 – Where that Act was repealed by the Aboriginal and Torres Strait Islander Land Holding Act 2013 – Where the later Act provided for the grant of leases approved but not granted under repealed Act – Where there are differences in the process for grant and conditions of leases grant under -- 2 of 28 -- 3 the later Act – Whether the right to grant, if accrued, survived the repeal of the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 – Whether a contrary intention was expressed in the Aboriginal and Torres Strait Islander Land Holding Act 2013 ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – NATIVE TITLE – PERMISSIBLE FUTURE ACTS – Native Title Act 1993 (Cth) s 24IB – Whether the grant of a lease under the Aboriginal and Torres Strait Islander Land Holding Act 2013 is a pre-existing right- based act – Whether the grant of a lease under the Aboriginal and Torres Strait Islander Land Holding Act 2013 is in exercise of a legally enforceable right – Whether the grant of a lease under the Aboriginal and Torres Strait Islander Land Holding Act 2013 is in good faith to give effect to an offer, commitment, arrangement or undertaking STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – Where s 29 of the Aboriginal and Torres Strait Islander Land Holding Act 2013 defines practical obstacles for the purposes of that Act – Where the definition includes competing interests in the lease entitlement land that need to be dealt with - Where the Minister identified a practical obstacle to grant of a lease is native title rights and interests based on a native title claim not yet determined – Whether that was a practical obstacle to the grant of a lease Aborigines and Torres Strait Islanders (Land Holding) Act 1985, s 4, s 5, s 9, s 10, s 12(1)(d), s 13, s 15, s 16, s 17, s 18, s 21 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 3(a), s 4(1)(b), s 4(2), s 5, s 6, s 9(1), s 11, s 12, s 12(4), s 15, s 23(4), s 24(11), s 25(2)(3), s 25(5), s 29, s 29(1)(c), s 30, s 31, s 32(2), s 33(1)(b), s 33(3), s 33(5), s 34(4), s 35(1), s 35(1)(b)(i), s 35(1)(b)(ii), s 35(1)(c), s 35(2), s 36, s 38(4), s 43, s 46, s 47(1), s 47(2), s 47(2)(g), s 47(3), s 48, s 48(2), s 48(3)(b), s 48(4), s 49, s 49(5), s 50, s 54(4), s 56(4), s 57(5), s 64, s 66 Aboriginal and Torres Strait Islander (Land Holding) Bill 2012 Acts Interpretation Act 1954, s 4, s 14A(1), s 20(2)(c) Land Court Rules 2000, r 4 Native Title Act 1993 (Cth), s 24AA(2), s 24EB, s 24IB, s 24IB(a), s 24IB(b), s 24ID(1)(b), s 24ID(1)(d), s 24ID(2)(a), s 24OA, s 233(1), s 227, s 228(3)(b), s 238 Torres Strait Islander Land Act 1991, s 85 -- 3 of 28 -- 4 Uniform Civil Procedure Rules 1999, r 69, r 69(1)(b)(ii) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited Allan v Transurban City Link Limited (2001) 208 CLR 167, considered Banjima (No 2) v Western Australia (2013) 305 ALR 1, considered Director of Public Works v Ho Po Sang [1961] AC 901, followed Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, applied Daniel v Western Australia (2004) 212 ALR 51, considered Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430, applied Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503, applied Narrier v State of Western Australia [2016] FCA 1519, considered Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37, cited Thiess v Collector of Customs (2014) 250 CLR 664, applied Western Australia v Graham [2016] FCAFC 47, distinguished Wilson v Anderson (2001) 213 CLR 410, applied APPEARANCES: R Merkel QC with R Mansted of Counsel (instructed by MacDonnells Law) for the appellant M McKechnie of Counsel (instructed by Crown Law) for the first respondent D Yarrow of Counsel (instructed by Gilkerson Legal) for the interlocutory applicants F Campbell solicitor (instructed by Torres Strait Regional Council) for the second respondent Introduction [1] These appeals involve rights under Queensland acts designed to facilitate home ownership in indigenous communities and their intersection with the Native Title Act 1993 (Cth) (“NTA”). [2] In 1985, the Queensland Parliament passed an act to allow residents of land reserved for indigenous communities to apply for perpetual leases for private home ownership. The Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (“1985 LHA”) -- 4 of 28 -- 5 commenced on 24 April 1985. Until 21 December 1991 it was the principal legislation in Queensland for leasing on indigenous lands. [3] Applications made by Messrs Stanislaus and Peter Sabatino to lease areas on Hammond Island in the Torres Strait were approved by the Hammond Island Council under the 1985 LHA, but were never granted. Mr Stanislaus Sabatino has since passed away. Mr Peter Sabatino is accepted as the appropriate person under the laws of succession to exercise Mr Sabatino’s interests in relation to that approval. [4] The 1985 LHA was repealed by the Aboriginal and Torres Strait Islander Land Holding Act 2013 (“2013 LHA”). Under the 2013 LHA, the Minister for Natural Resources and Mines issued a statutory notice for each application called a statement of reasons (obstacles) which identified a practical obstacle to the grant of the lease. [5] The effect of each statement of reasons (obstacles) is that the Minister cannot grant leases to Mr Dorante and Mr Sabatino until the practical obstacle has been resolved. [6] The practical obstacle identified by the Minister is native title rights and interests evidenced by the native title claim made by Mr Wigness and others on behalf of the Kaurareg People (the claimants). He submitted the grant of the leases would be an invalid future act1 that would have to be authorised by an Indigenous Land Use Agreement.2 [7] Mr Dorante and Mr Sabatino requested the Minister amend each statement of reasons (obstacles) to state that there is no practical obstacle to the grant. That would allow the Minister to immediately grant each lease. [8] The prospective leases confer a right of exclusive possession. Mr Dorante and Mr Sabatino submitted the grant of such leases would be a pre-existing right based act (PERBA) under s 24IB of the NTA. The effect of the grant would be to extinguish any native title rights and interests the claimants might establish.3 For that reason, their claim could not be a practical obstacle to granting the lease. 1 Native Title Act 1993 (Cth), s 24AA(2). 2 Ibid s 24EB. 3 Native Title Act 1993 (Cth), s 24ID(1)(b). -- 5 of 28 -- 6 [9] The Minister rejected that assertion and refused to amend the statement of reasons (obstacles) for either lease. Mr Dorante and Mr Sabatino have appealed those decisions. [10] The Torres Strait Islander Regional Council is now the trustee of land which includes Hammond Island. It is a statutory party to the appeal. Although it is the second Respondent it supports the appeals and adopted Mr Dorante’s and Mr Sabatino’s submissions. [11] The claimants applied to be joined as parties to the appeal. They support the Minister’s decisions. They argued the appeal could only be allowed if the Minister’s decision on each request was unreasonable. They submitted the Court could not determine whether the claim presented a practical obstacle until the claim was determined. The applications for joinder and the appeals were heard together. [12] The issues raised by the joinder applications and the appeals can be resolved by answering the following questions: 1. Should the claimants be joined as a party to the appeals? 2. Can the appeals be allowed only if the Minister was unreasonable in identifying the claim as a practical obstacle? 3. Can the Court consider whether the grants would be PERBAs before the native title claim is determined? 4. Would the grant of the leases be PERBAs under s 24IB of the NTA? [13] Before answering those questions, it is helpful to consider the legislative background, the definition of practical obstacles and the purpose of identifying them. The definition and purpose of identifying practical obstacles to granting leases [14] The 2013 LHA was introduced to make ongoing provision for particular matters arising under the 1985 LHA and to repeal that Act.4 [15] A qualified person could apply under the 1985 LHA for leases over land within a trust area. A trust area was an area granted in trust or reserved by the Governor-in-Council for the benefit of Aborigines or Torres Strait Islanders. A qualified person was a person entitled to reside as a member of the community of Aborigines or Torres Strait Islanders resident in a trust area.5 4 Aboriginal and Torres Strait Islander Land Holding Act 2013, preamble. 5 Ibid ss 4 and 5. -- 6 of 28 -- 7 [16] The Explanatory Notes for the Aboriginal and Torres Strait Islanders (Land Holding) Bill 2012 recorded difficulties in operating and granting leases under the 1985 LHA. It also noted difficulties in application, assessment and approval processes under that Act. As at 30 July 2012, the Government identified 474 unresolved applications under the 1985 LHA, 222 of which were valid.6 The two applications the subject of these appeals are amongst that number. [17] A main object of the 2013 LHA is to provide a framework for identifying and satisfying lease entitlements under the 1985 LHA, including by dealing with practical obstacles to satisfying the entitlements.7 The means to achieve that object include resolving practical obstacles through consultation, negotiation and agreement.8 It allows for the grant of a lease to be deferred having regard to the practical obstacles that may be identified.9 [18] A lease entitlement is an entitlement to be granted a lease to satisfy an entitlement under the 1985 LHA.10 They are identified through a process which includes the chief executive of the Department of Natural Resources and Mines issuing lease entitlement notices.11 Lease entitlement notices were published for the areas subject to each appeal. There is no dispute Mr Dorante and Mr Sabatino are each the sole holder of the respective lease entitlements in relation to approvals.12 [19] As soon as practicable after a lease entitlement notice is issued, the Minister must investigate, consult about and identify practical obstacles to the grant of a lease.13 Practical obstacles are defined in s 29 of the 2013 LHA. The definition includes examples of practical obstacles. Each of the examples is an issue that would have to be determined before the lease could be granted. [20] After consultation with entities prescribed by the Act, the Minister identifies whether there are any practical obstacles by publishing a statement of reasons (obstacles).14 6 Explanatory Notes, pp 1-2. 7 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 3(a). 8 Ibid s 4(1)(b). 9 Ibid s 4(2). 10 Ibid s 9(1). 11 Ibid s 15. 12 Agreed Statement of Facts, at [9]-[11]. 13 Aboriginal and Torres Strait Islander Land Holding Act 2013, ss 30 and 31. 14 Ibid s 31. -- 7 of 28 -- 8 [21] If the statement of reasons (obstacles) states there are no practical obstacles to the grant, the Minister may grant the lease and if the Minister does not, the holder can apply to compel the Minister to do so.15 [22] If the Minister does identify a practical obstacle, the holder can apply to the Minister to amend the statements of reasons (obstacles) to state there are no practical obstacles to the grant.16 If the Minister refuses to do so, the holder can appeal that decision to this Court.17 [23] Identifying a practical obstacle does not mean the Minister cannot make a grant. However, the grant must be made under a deferred grant procedure set out in Part 5 Division 4.18 The Minister must consult with any person the Minister is satisfied ought to be consulted about the grant or whose agreement to the grant is required.19 Following consultation, the Minister may make an agreed deferred grant, if all agreements have been obtained.20 There is no right to appeal against an agreed deferred grant. [24] If all agreements have not been obtained, the Minister may make a contested deferred grant, but only as decided by this Court.21 The Minister’s application to the Court must be supported by a statement of reasons which includes details of persons whose agreement would be required for an agreed deferred grant, but which have not been obtained.22 The parties to those proceedings include those persons identified in a statement of reasons (contested deferred grant) as persons whose agreement has not been obtained.23 [25] Steps to satisfy Mr Dorante’s and Mr Sabatino’s lease entitlements have reached the stage of identifying practical obstacles. The only aspect of the process that is in dispute relates to the Minister’s identification of a practical obstacle to the leases being granted. 15 Ibid ss 35(1)(c), 36. 16 Ibid s 32(2). 17 Ibid s 33(1)(b). 18 Ibid s 34(4). 19 Ibid s 43. 20 Ibid s 46. 21 Ibid s 48. 22 Ibid s 47(2)(g) and (3). 23 Ibid s 48(4). -- 8 of 28 -- 9 [26] The parties agree the third example of a practical obstacle in the definition is the relevant one for these appeals:24 “Section 29(1) … (c) that competing interests in the lease entitlement land need to be dealt with”. [27] In each of his statements of reasons (obstacles), the Minister identified native title is a competing interest and therefore a practical obstacle to the grant of the lease entitlement.25 He took into account an active native title claim made by Pearson Wigness, Harry Seriat, Isaac Savage and Milton Savage over areas which include the land subject of the lease entitlements held by Mr Dorante and Mr Sabatino (the Kaurareg People #3 claim).26 [28] The dispute between the parties is whether the Kaurareg People #3 claim is a competing interest that needs to be dealt with and, therefore, a practical obstacle to the leases being granted. For reasons given later in this judgment, that question will be resolved by determining whether the grant of the leases would be PERBAs27 under the NTA. [29] Against that background, I turn to each of the questions identified above. Should the claimants be joined as a party to the appeals? [30] The claimants applied to be joined as a party to both appeals. As the Land Court Rules 2000 make no provision for joinder, the claimants relied on r 69 of the Uniform Civil Procedure Rules 1999 (“UCPR”).28 [31] Mr Dorante, Mr Sabatino and the Trustee Council opposed the claimants being joined, but did not oppose them making submissions as an intervenor or amicus curiae.29 The Minister took no position on the matter. 24 Ibid, s 29. 25 Agreed Statement of Facts, at [16]. 26 QUD362/210 Kaurereg People #3; Agreed Statement of Facts, at [16]. 27 Native Title Act 1993 (Cth), s 24IB. 28 Land Court Rules 2000, r 4 applies the Uniform Civil Procedure Rules 1999, with necessary changes, if a matter in relation to a proceeding is not provided for by the Land Court Rules 2000. 29 Court Transcript, p 7. -- 9 of 28 -- 10 [32] A potential argument about joinder was resolved during the hearing when Mr Dorante and Mr Sabatino abandoned their request for declaratory relief in both appeals.30 As a result, the joinder application is determined on the basis of the appeal jurisdiction conferred on the Court by the 2013 LHA. [33] These are statutory appeals. Mr Dorante and Mr Sabatino argued there is no scope for joinder. The 2013 LHA establishes a regime which specifically provides who may appeal and who are the parties to the appeal. For these appeals, the parties are specified by s 33(5) which provides: “(5) The parties to the appeal are – (a) the relevant person; and (b) the Minister; and (c) the reference entity for the lease entitlement”. [34] Although the claimants accept they do not come within s 33(5), they argued r 69 of the UCPR is not excluded. They may be affected by how the practical obstacle is resolved. This means they are affected persons for a practical obstacle 31 under the 2013 LHA. They submit their presence as a party to the appeals is desirable, just or convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.32 [35] However, being affected persons for a practical obstacle does not result in any procedural rights in relation to the statement of reasons (obstacles). Any procedural rights arise later in the process. [36] The mechanism for addressing a practical obstacle is a deferred grant of the lease under Part 5 Division 4. This requires the Minister to consult with a person who ought to be consulted or whose agreement to the grant of the lease is required.33 Any right to be consulted or to agree arises after it has been determined whether there is a practical obstacle to the leases being granted. [37] This contrasts with other provisions of the 2013 LHA dealing with affected persons for different processes. For example, persons affected by decisions about replacement lease entitlement notices must be provided with copies of notices and they have a 30 The appellant abandoned the relief sought in para 4 of each appeal. 31 Aboriginal and Torres Strait Islander Land Holding Act 2013, Sch Dictionary. 32 Uniform Civil Procedure Rules 1999, r 69(1)(b)(ii). 33 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 43. -- 10 of 28 -- 11 right of appeal.34 Further, regardless of the identity of the appellant, an affected person is stated to be a party to such an appeal.35 [38] Mr Dorante and Mr Sabatino submitted the question of joinder must be determined exclusively by reference to the 2013 LHA. In support of that proposition, they relied on Allan v Transurban City Link Limited.36 In that case the High Court had to consider whether a person had a right to review a particular administrative decision. Under the relevant Act that depended on whether he was a person “affected by” the decision, within the meaning of the applicable section. The High Court unanimously concluded that question had to be determined by reference to the subject, scope and purpose of the Act. [39] Although Allan v Transurban dealt with a person’s standing as, in effect, an appellant, the reasoning is apposite in resolving the question of joinder. [40] The starting point must be the 2013 LHA in resolving whether there is any scope to join to an appeal a person claiming an interest in its outcome. [41] I accept Mr Dorante’s and Mr Sabatino’s submissions that, but for s 33(5), the parties to these appeals would be Mr Dorante and Mr Sabatino, as the persons holding the lease entitlements under the 2013 LHA, and the Minister, as the decision maker. [42] Section 33(5) extends the parties to this particular statutory appeal; but in a precisely limited way. The level of definition in the section does not sit comfortably with a discretionary power to join additional parties relying on uniform procedure rules. [43] The indication in s 33(5) that the 2013 LHA excludes r 69 is reinforced by reference to other provisions in that Act which govern different types of appeals or proceedings before this Court. [44] Each of the footnoted sections37 declares who are the parties in non-inclusive terms. As between the sections, distinctions are drawn between the parties for the different appeals and proceedings. Those distinctions indicate deliberate delineation of each 34 Ibid ss 24(11), 25(2)(3). 35 Ibid s 25(5). 36 (2001) 208 CLR 167. 37 Aboriginal and Torres Strait Islander Land Holding Act 2013, ss 23(4), 25(5), 38(4), 48(4), 49(5), 54(4), 56(4), and 57(5). -- 11 of 28 -- 12 appeal or proceeding. This displays a legislative intent that the 2013 LHA exclusively determines who will be the parties to appeals or proceedings under that Act. [45] For that reason, I am persuaded s 33(5) excludes the operation of r 69 for these appeals and refuse the claimants’ applications to be joined as a party to the appeals. [46] That does not mean the claimants should have no voice in the appeals. If the Minister’s decisions are upheld on appeal, the claimants would be consulted by the Minister about the grant of the leases. Depending on the Minister’s investigations, he might determine the claimants must agree before the lease can be granted. If the Minister’s decisions are overturned, the claimants will not be involved in the process of grant. Although the 2013 LHA does not confer standing as a party on the claimants in these appeals, they have a clear interest in the outcome. [47] It might be argued the Minister can adequately make submissions on the issues raised in the appeals. However, the Minister’s interests do not necessarily coincide with those of the claimants. I am satisfied their interest in being consulted about the grant of the leases is sufficient to sustain an application to intervene in order to make submissions about the nature and scope of the appeal and whether their claim is a practical obstacle to the grant of the leases.38 I will grant them leave to intervene for that purpose. [48] Had the claimants been joined as a party, they asked to be heard on or lead evidence about the factual basis for the appeals. As their joinder applications have been refused, the appeals will be determined on the agreed statement of facts filed on 13 January 2017. Can the appeals be allowed only if the Minister was unreasonable in identifying the claim as a practical obstacle? [49] On appeal, the Court may order the Minister to change the statements of reasons (obstacles) in the way the Court considers appropriate.39 38 Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37. 39 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 33(3). -- 12 of 28 -- 13 [50] The claimants submitted the Minister is entitled to a certain deference in his identification of a practical obstacle, which may only be overturned if the Minister’s decision is unreasonable. [51] The Minister did not join in that submission and Mr Dorante and Mr Sabatino rejected it.40 [52] The parties’ written submissions raise questions of statutory interpretation involving the 1985 LHA, the 2013 LHA and the NTA. They do not raise questions about the reasonableness of the Minister’s decision. [53] Mr Dorante’s and Mr Sabatino’s written submissions posed two questions: 1. Whether granting the leases to satisfy lease entitlements under the 2013 LHA would be PERBAs under the NTA. 2. Whether the claimant’s native title claim is a practical obstacle under the 2013 LHA. [54] However, during argument, senior counsel for Mr Dorante and Mr Sabatino agreed the appeals should be dismissed if the Court found against it on the first question.41 [55] The Minister agreed with that approach to the appeals. He accepted that if the grant of the leases are PERBAs, this would extinguish native title over the leased area and would not present a practical obstacle.42 [56] That concession seems sound. If the leases are PERBAs, even if the claimants make out their claim, their interest would be in a claim for compensation made against the State of Queensland.43 They would not have an interest which competed with Mr Dorante’s and Mr Sabatino’s lease entitlements that would need to be dealt with before the leases could be granted. [57] It is not necessary, therefore, to address competing arguments in the parties’ written submissions about: (a) whether the 2013 LHA is consistent or not with the NTA; or (b) the implications of the absence of explicit reference to native title rights in the provisions dealing with grant of leases under the 2013 LHA. Other arguments about 40 Court Transcript, p 43. 41 Court Transcript, pp 4-5. 42 Native Title Act 1993 (Cth), s 24ID(1)(b). 43 Ibid ss 24ID(1)(d) and (2)(a). -- 13 of 28 -- 14 the validity of the 2013 LHA or re-vesting land in the trustee under that Act, which were raised only by the claimants, will also not be addressed. [58] The appeals will be determined by answering the question whether granting the leases would be PERBAs under the NTA. That question raises a number of issues; but none of them relate to the reasonableness of the Minister’s identification of practical obstacles. [59] I do not accept the claimants’ submission that the appeals can only succeed if the Minister’s identification of a practical obstacle was unreasonable. Can the Court consider whether the grants would be PERBAs before the native title claim is determined? [60] The claimants submitted the Court could not decide whether the grants would be PERBAs because it was a hypothetical exercise which lacks utility and is impermissible.44 To find the grants would be PERBAs requires the Court to accept they would be future acts.45 That requires the Court to be satisfied that native title exists and that the grants would affect native title. The claimants argued the Court could not be satisfied of either.46 [61] That is a surprising argument for the claimants to advance. It is inconsistent with the position taken by all parties to the appeal.47 [62] Native title is the practical obstacle identified by the Minister and rests on the Kaurereg People #3 claim. If the claimed native title rights and interests do not exist there is no competing interest and no practical obstacle to the grants. Although Mr Dorante’s and Mr Sabatino’s submissions also advanced the argument that a claim does not establish native title exists, his counsel argued the Court could determine the appeals in Mr Dorante’s and Mr Sabatino’s favour assuming that the claim will be made out. 44 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at pp 581-582. 45 Native Title Act 1993 (Cth), s 233(1). 46 Claimants’ submissions, at [52] to [57]. 47 Applicant’s submissions at [36]; respondent’s submissions at [13]. -- 14 of 28 -- 15 [63] An act affects native title if it extinguishes native title rights and interests or is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.48 [64] The claimants’ primary claim is for exclusive possession, occupation, use and enjoyment as against the whole world. Their secondary claim is for non-exclusive rights including:49 “… (b) The right to access, traverse and be present on the Application Area; (e) The right to live on the Application Area; …” [65] A lease granted pursuant to s 35(2) of the 2013 LHA is a tenure which grants the right of exclusive possession50 and would affect the claimed native title rights and interests, if they exist. Unless otherwise authorised, they would be future acts that would be invalid to the extent that they affect native title.51 [66] The case involves more than a hypothetical exercise. The Court must decide whether the Kaurereg People #3 claim is a practical obstacle to the grant of the leases and, consequently, whether the Minister should be directed to amend his statement of reasons (osbstacles). [67] All parties to the appeals accept the Court can consider whether grant of the leases would be PERBAs. They agreed the Court’s decision on that question will determine the outcome of the appeals. Would the grant of the leases be PERBAs under the NTA? [68] For the grant of the leases after 23 December 1996 to be PERBAs they must fall within one of the subclauses of s 24IB of the NTA. “24IB Pre-existing right-based acts A future act is a pre-existing right-based act if it takes place: (a) In exercise of a legally enforceable right created by an act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or (b) In good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and 48 Native Title Act 1993 (Cth), s 227. 49 Affidavit of Pearson Wigness, sworn on 6 February 2017; Annexure A, Extract from the Register of Native Title Claims for the Kaurereg People #3 claim. 50 First respondent’s submissions, at [35] fn 14; Wilson v Anderson (2001) 213 CLR 410. 51 Native Title Act 1993 (Cth), ss 24OA and 238. -- 15 of 28 -- 16 of which there is written evidence created at or about the time the offer, commitment arrangement or undertaking was made.” [69] Mr Dorante and Mr Sabatino submitted the grant of the leases would fall under both subparagraphs. The Minister submitted neither applied. [70] Mr Dorante and Mr Sabatino argued the grant of the leases under the 2013 LHA would be in exercise of a legally enforceable right accrued under the 1985 LHA. The Minister submitted any right accrued under the 1985 LHA no longer exists, having been replaced by a right conferred on Mr Dorante and Mr Sabatino by the 2013 LHA. Any right accrued under the 1985 LHA can no longer be exercised, so the grant of the leases could not be in exercise of that right. [71] There is a statutory presumption that a right acquired or accrued under an Act is not affected by the repeal of the Act.52 That presumption can be displaced by a contrary intention.53 The Minister raised the following matters to demonstrate the contrary intention:  The legislative intention expressed in s 6 and other provisions of the 2013 LHA;  Differences in the tenure and grant process under the two Acts. [72] The Minister also submitted there was insufficient nexus between any right accrued under the 1985 LHA and the grant of a lease under the 2013 LHA for the grant to be a PERBA. [73] Before considering those matters, it is necessary to identify the right Mr Dorante and Mr Sabatino say they acquired or accrued under the 1985 LHA.54 Did Mr Dorante and Mr Sabatino accrue a legally enforceable right under the 1985 LHA? [74] Approval by the trustee of a trust area of an application for a lease under the 1985 LHA had the following consequences: 1. The applicants were entitled to be granted leases in perpetuity; 52 Acts Interpretation Act 1954, s 20(2)(c). 53 Ibid s 4. 54 Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430, at p 439. -- 16 of 28 -- 17 2. The Governor in Council was authorized to grant the leases; 3. The trustee was divested of the land concerned, although it continued to exercise local government functions for the land; 4. The land became Crown land for the sole purpose of the leases being issued; and 5. No other authority could be exercised on behalf of the Crown in respect of the land unless the leases had been issued.55 [75] Some matters regarding the leases were prescribed by the 1985 LHA: 1. The maximum area of land within a trust area that could be subject to a lease in perpetuity;56 2. Ownership of and maintenance of structural improvements on the land;57 3. Assessment and payment of rent;58 4. Rights to transfer, mortgage or sub-lease;59 and 5. Forfeiture of lease.60 [76] Other conditions could be specified by the Minister in the lease itself.61 While there was some scope for uncertainty about the final conditions of a lease, a person whose application had been properly made and approved had more than a hope or expectation that the Governor in Council would issue a lease.62 [77] Mr Dorante and Mr Sabatino argued they had a right that under the 1985 LHA that he could have enforced by a writ of mandamus to compel the grant of the lease.63 [78] The State’s obligation to grant was acknowledged in the Explanatory Memorandum for the 2013 LHA: “…Where an application was properly made and approved under the Aborigines and Torres Strait Islanders (Land Holding) Act 1995 prior to 21 December 1991, the State is obliged to grant a lease over the area covered by the application.” (emphasis added) [79] The agreed statement of facts record the two applications were properly made and approved.64 [80] The Minister did not appear to contest the proposition that Mr Dorante had acquired or accrued rights under the 1985 LHA. Rather, he submitted any rights had not 55 Aborigines and Torres Strait Islanders (Land Holding) Act 1985, ss 9 and 10. 56 Ibid s 13. 57 Ibid s 15. 58 Ibid ss 16 and 17. 59 Ibid s 18. 60 Ibid s 21. 61 Ibid s 12(1)(d). 62 Director of Public Works v Ho Po Sang [1961] AC 901, at p 920. 63 First respondent’s submissions, at [45]. 64 Agreed Statement of Facts, at [2]. -- 17 of 28 -- 18 survived repeal of that Act. The 2013 LHA, which repealed it, expressed a contrary intention.65 [81] To some extent, that rested on his characterisation of the accrued right. The Minister said the right accrued under the 1985 LHA was a right to be granted a perpetual lease under that Act. Mr Dorante and Mr Sabatino characterised the right as a right to be granted a lease in the nature of a perpetual lease, which conferred exclusive possession. As a matter of logic, Mr Dorante’s and Mr Sabatino’s characterisation must be correct. The vehicle for exercising the right is a different matter to the nature of the right itself. In this case, the right relates to the tenure, not the means by which it is granted. Is the statutory presumption displaced by a contrary intention expressed in the 2013 LHA? [82] In interpreting the 2013 LHA the Court must prefer the interpretation that will best achieve the purpose of the Act.66 In interpreting its provisions, it must consider which meaning is most consistent with the language of the statute as a whole and with the purpose of the statute as a whole.67 The text must be considered in its context, which includes its legislative history and extrinsic material, including the Explanatory Memorandum, insofar as they assist in fixing the meaning of the text.68 The legislative intention [83] The 2013 LHA was introduced to make ongoing provision for particular matters arising under the 1985 LHA.69 A main object is to provide a framework for identifying and satisfying lease entitlements under the 1985 LHA.70 [84] The parties agreed s 6 expressed the legislative intention, although they differed on its meaning. 6 All rights under the 1985 Land Holding Act to be dealt with under this Act 65 First respondent’s submissions, at [41]-[50]. 66 Acts Interpretation Act 1954, s 14A(1). 67 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, at [24]. 68 Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 at 519; Thiess v Collector of Customs (2014) 250 CLR 664, at 671-672. 69 Aborigines and Torres Strait Islanders (Land Holding) Act 1985, preamble. 70 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 3(a). -- 18 of 28 -- 19 A right a person may have had under the 1985 Land Holding Act to be granted a lease under that Act may be satisfied only in the form of a grant to satisfy a lease entitlement as provided for under this Act. (emphasis added) [85] The Minister and the claimants highlighted the phrase a grant to satisfy a lease entitlement as provided for under this Act. They considered this choice of words indicated a right to a lease under the 1985 LHA was replaced by a right to a grant under the 2013 LHA. [86] I have already addressed why the right should be characterised as the right to be granted a tenure of a particular type. The Act under which it is granted does not necessarily affect the right to be granted a tenure of a particular type. [87] The plain meaning of the language used in s 6 does not evidence a contrary intention to displace the statutory presumption that Mr Dorante’s and Mr Sabatino’s right to the grant of leases survived the repeal of the 1985 LHA. [88] Section 6 starts by recognising a person may have a right to the grant of a lease under the 1985 LHA. It does not divest the person of that right. It does not generate a new right. It provides how the right will be satisfied. Further, s 5 provides the grant must be done in a way that takes account of rights and obligations under the 1985 LHA. [89] That indicates a legislative intention to provide a mechanism to satisfy an ongoing legally enforceable right. The rationale for the mechanism is revealed in the Explanatory Memorandum which states:71 “…The actual operation and grant of leases…was difficult largely due to the application, assessment and approval processes of applications under the Act which required decision-making by Indigenous local governments and two State Government Ministers…” [90] That interpretation is reinforced by considering the overall scheme of the 2013 LHA. It relates to only two types of leases: “1985 Act granted leases” and “new Act granted leases”. [91] “1985 Act granted leases” are leases granted, or purportedly granted, under or by reference to the 1985 LHA and still in force when that Act was repealed.72 They are continued and given effect to under the 2013 LHA. 71 Explanatory Memorandum, at pp 2-3. 72 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 12. -- 19 of 28 -- 20 [92] “New Act granted leases” are leases granted under the 2013 LHA.73 They have their origin in an application made and approval given under the 1985 LHA. [93] No new rights to grant are created by the 2013 LHA. The function of the Act is to continue granted leases, grant leases approved and provide for the administration of both types of leases. Differences in the tenure and grant processes under the two Acts [94] The fundamental nature of the tenure is the same under the two Acts. Both Acts provided for a lease in perpetuity for residential purposes. [95] Nevertheless, the Minister relied on differences in the tenure and grant processes.74 Mr Dorante and Mr Sabatino submitted these are minor administrative differences with no consequence for the nature of the tenure. [96] The first difference asserted by the Minister is the identity of the grantor.75 However, the Minister has confused the grantor with the lessor. During the application period under the 1985 LHA, the trustee of a trust area did not have the power to lease land in a trust area. To facilitate grant, the land was divested from the trustee and became Crown Land.76 The Crown granted the lease and the 1985 LHA conferred certain administrative powers on the trustee. [97] The trustee now does have power to enter into a lease77 and the 2013 LHA vests the land in the trustee. It also specifies the trustee is the lessor.78 [98] However, it is still the State (through the Minister) that grants the leases under the 2013 LHA. The consistency of the State being grantor under both Acts sits comfortably with the grant under the 2013 LHA fulfilling the State’s obligation to grant, which was acknowledged in the Explanatory Memorandum. [99] The second difference pressed by the Minister was that the statutory conditions of the 2013 LHA were not imposed on leases granted under the 1985 LHA: such as the 73 Ibid Sch Dictionary. 74 First respondent’s submissions, at [49]. 75 Ibid at [49 a.] 76 Aborigines and Torres Strait Islanders (Land Holding) Act 1985, s 10. 77 Torres Strait Islander Land Act 1991, s 85. 78 Aboriginal and Torres Strait Islander Land Holding Act 2013, ss 11, 12(4) and 50. -- 20 of 28 -- 21 requirement to build private premises on residential land within a certain time.79 That does not alter the fundamental nature of the tenure granted under both Acts: a lease in perpetuity for residential purposes. [100] Finally, the Minister said there is no guarantee that the lease will be granted under the 2013 LHA on the same terms as the entitlement under the 1985 LHA. That is so. For example, a contested deferred grant may take into account the interest of relevant third parties.80 However, it is not possible to determine what would be the final conditions of a lease under the 1985 LHA. There was discretion to impose additional conditions under that Act, just as there is under the 2013 LHA. [101] I am not persuaded that the differences relied upon demonstrate a contrary intention to displace the statutory presumption that the right accrued under the 1985 LHA survived the Act’s repeal. Is there a sufficient nexus between the right to the grant and the act of grant? [102] The Minister argued there is insufficient nexus between the legally enforceable right accrued under the 1985 LHA and the mechanism, provided by the 2013 LHA, by which the act is done in exercise of the right. [103] He relied on a passage from Nicholson J’s judgment in Daniel v Western Australia:81 “…Again it is the terms of the NT Act in its relevant section which must determine this issue. Section 228(3) draws a distinction between the ‘act’ which takes place on or after 1 January 1994 (which may become the past act if it satisfies the statutory criteria) and the ‘legally enforceable right’ in exercise of which the ‘act’ takes place. The accommodation lease is not the ‘legally enforceable right’; rather it is the ‘act’ resulting (if it does) from the ‘legally enforceable right’ created in accordance with the section. It follows from the provisions of the section that it will be sufficient if the enactment sets out a mechanism providing a legally enforceable right which results in the application of the mechanism there provided on a later occasion to produce an act.” (first respondent’s emphasis added) [104] Although Daniel dealt with s 228(3)(b) of the NTA, which applies to past, not future, acts, it mirrors the language of s 24IB. [105] The necessary inference from Nicholson J’s reasoning is there must be a nexus between the ‘legally enforceable right’ and a mechanism later used to do the ‘act’ in 79 Ibid ss 64, 66. 80 Ibid s 49. 81 (2004) 212 ALR 51, at [44]. -- 21 of 28 -- 22 exercise of that right. As I understood Mr Dorante’s and Mr Sabatino’s position, that is not in dispute. [106] However, the Minister took Nicholson J’s reasoning further and inferred it meant that the mechanism for producing the future act (in this case the grant) should be in the same enactment under which the right (to a grant) was accrued. In this case, the statutory mechanism provided under the 2013 LHA is separate to and materially different from the process set out in the 1985 LHA.82 [107] Nicholson J’s reasoning does not compel that inference. The issue of successive enactments did not arise on the facts considered in Daniel. It appears not to have arisen on the facts considered in any case dealing with s 24IB. None of the cases to which I was referred involve a right accrued under one enactment and an act in exercise of that right under another. [108] I am not satisfied it is necessary for the same enactment to provide both the right and the mechanism by which the act in exercise of the right takes place. The necessary nexus between the right and the act may or may not be broken by successive enactments, depending upon their terms. [109] I am satisfied there is a direct and unavoidable nexus between the right accrued under the 1985 LHA and the grant of a lease under the 2013 LHA. [110] The sole basis for grant of a “new Act lease” under the 2013 LHA is a valid approval under the 1985 LHA. A lease can be granted only to the holder of a lease entitlement.83 [111] A person can hold a lease entitlement if, between 15 June 1985 and 20 December 1991, they applied under the 1985 LHA for a lease of land within a trust area and the application was approved, but no lease was granted.84 [112] The only other circumstance in which a person who did not apply can hold a lease entitlement is if the applicant is deceased and the person is an appropriate person having regard to the laws of succession.85 82 First respondent’s submissions, at [55]. 83 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 35(1). 84 Ibid s 35(1)(b)(i). 85 Ibid s 35(1)(b)(ii). -- 22 of 28 -- 23 [113] These provisions demonstrate the direct and unavoidable connection between the right and the grant. The reference to the laws of succession is a further credible indication the 1985 LHA right endures the Act’s repeal. [114] Another indication is provided by the process for grant. A person does not apply for a grant under the 2013 LHA. The grant process commences by the Minister identifying and publishing information about lease entitlements, including the identity of the holder of that entitlement. [115] The Minister submitted the process under the 2013 LHA was analogous with that considered in Western Australia v Graham.86 In that case, lease holders under the Mining Act 1978 had a priority right to apply for a new lease. The Court considered whether the grant of a subsequent lease would be a PERBA because it took place in exercise of a legally enforceable right. [116] Justice Jagot (with whom Mansfield and Dowsett JJ agreed) decided the re-grant of a mining lease took place in the exercise of a statutory discretion by the Minister, not in the exercise of a legally enforceable right. The priority application was made in exercise of a legally enforceable right: the right to apply. But that was insufficient to link the subsequent grant, which was at the Minister’s discretion.87 [117] Those circumstances can be distinguished from the facts of these appeals. In Graham, the legally enforceable right was a right to apply for a new lease. Whether the lease was granted was a matter of statutory discretion. [118] Here, the right is not to apply for a lease. That has already occurred. The applications have been approved. The right recognised and satisfied by the 2013 LHA is the right to the grant of the leases. [119] The existence of some discretion in the process of grant does not disqualify the act of grant from being a PERBA. That is illustrated by a number of decisions on s 24IB. [120] In Daniel, Nicholson J accepted a right could be legally enforceable notwithstanding the Minister could elect to grant it in part, defer its grant, and require conditions precedent.88 86 [2016] FCAFC 47. 87 Ibid at [130]. 88 Daniel v Western Australia (2004) 212 ALR 51, at [48]. -- 23 of 28 -- 24 [121] In Banjima (No 2) v Western Australia,89 Barker J accepted there was a legally enforceable right even though the Minister could give notice of approval or any alterations or conditions desired. This did not affect the contractual obligation to grant the tenure requested. [122] In Narrier v State of Western Australia, the Minister had the discretion to grant the lease for such periods and on such terms and conditions, including renewal rights, as shall be reasonable.90 [123] It was common ground the deferred grant provisions accommodate the need to deal with developments on or other changes that may have occurred on the land between approval and grant, including to the boundaries of the area applied for.91 In the absence of agreement by all necessary persons, the Minister cannot make the grant and must apply to this Court. [124] If the Court’s decision provides for granting a lease over land to any extent different in area or location from the area applied for, to the detriment of the proposed grantee, that person can apply for compensation.92 [125] That is another direct link which reinforces the nexus between the approval under the 1985 LHA and the grant of a lease under the 2013 LHA. [126] It is true that the Court has the power to refuse the Minister’s application to make a deferred grant.93 However, that power appears to be limited in scope. [127] The Court can only be asked to decide a deferred grant where the grant remains contested, because the Minister has not secured all necessary agreements.94 The application must include a record of the Minister’s consultations about the lease entitlement, any agreements reached, any conditions the Minister proposes and a statement of reasons explaining the proposed approach to satisfying the lease entitlement.95 89 (2013) 305 ALR 1, at [972]-[973]. 90 Narrier v State of Western Australia [2016] FCA 1519, at [1133]. 91 That is supported by the explanation of practical obstacles given in the Explanatory Memorandum at pp 9-11. 92 Aboriginal and Torres Strait Islander Land Holding Act 2013, s 49. 93 Ibid s 48(3)(b). 94 Ibid s 47(1). 95 Ibid s 47(2). -- 24 of 28 -- 25 [128] In deciding the application, the Court must decide whether the requirements of the division have been complied with and whether it is reasonable that the application be granted.96 No other function is conferred on the Court. [129] That indicates the Court’s power to refuse the application is not at large. Given the purpose of the deferred grant division is to allow practical obstacles to be investigated and dealt with before grant, it makes sense the Court’s function would be limited in that way. [130] If the Minister had not complied with the requirements of the deferred grant division, there is nothing in the 2013 LHA that indicates the Court’s refusal to make the grant would relieve the Minister of his obligation to comply with the division. [131] If the Minister had complied with the requirements, but failed to secure all necessary agreements, the Court’s function is to consider whether the proposed approach to satisfying the lease entitlement is reasonable, given the Minister’s consultations and proposed conditions. [132] Again, the Court’s decision that the Minister’s proposed grant is not reasonable does not appear to relieve the Minister of continuing to consult and seek agreement in order to deal with the practical obstacle to the grant. [133] As I read the deferred grant division, the Minister is never relieved of the obligation to make the grant. [134] That interpretation is consistent with the explanation of the deferred grant process in the Explanatory Memorandum:97 “…Whilst the Bill permits the grant of a lease to be deferred, this is not to diminish the obligation to the grant of the lease. Instead this allows the resolution of those obstacles prior to the grant and means the lessee receives a lease that is not burdened by any practical problems…” [135] If further indication is needed of the link between the approval (the right) and the grant (the act in exercise of it), the Explanatory Memorandum provides further assistance. It identified entitlements under the 1985 LHA may be granted as PERBAs under s 24IB:98 96 Ibid s 48(2). 97 Explanatory Memorandum, at p 20. 98 Ibid at p 22. -- 25 of 28 -- 26 “…This Bill is consistent with the requirements of the Commonwealth Native Title Act 1993… Entitlements under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 may be granted as pre-existing right- based acts under section 24IB of the Commonwealth Native Title Act 1993…” [136] The Minister argued the following statement suggests that is just one way the native title interests might be dealt with in relation to the grant of a lease: “…In certain circumstances an Indigenous Land Use Agreement may be required under the Commonwealth Native Title Act 1993 where the proposed action affects native title and is not otherwise covered by another future act provision of the Commonwealth Native Title Act 1993…” [137] I accept Mr Dorante’s and Mr Sabatino’s submission that statement should be read as a reference to amendments to other Acts included in the Bill. For example, the Bill proposed amendments to the Land Act 1994 to facilitate certainty for rural leaseholders and Indigenous people in relation to access and use of State rural leasehold land and assist in more timely resolution of native title claims over this land.99 One policy objective of the Bill was to provide a statutory framework for such state rural leasehold land using Indigenous Access and Use Agreements (“IAUA”) and Indigenous Land Use Agreements (“ILUAs”).100 [138] It makes sense for the reference to an ILUA to relate to proposed action on State rural leasehold land, rather than to the grant of leases under the proposed 2013 LHA. [139] It is difficult to conceive in what circumstances an ILUA would be required, if one accepts, as the drafter of the Explanatory Memorandum did, that the grant of a lease may be authorised as a PERBA. There is no relevant distinction between the circumstances that could apply to grants of “new Act leases” under the 2013 LHA. The same requirements apply to all grants: valid application, within time, and approval but no grant under the 1985 LHA. If those features qualify any grant of a “new Act lease” under the 2013 LHA as a PERBA, logic dictates they must qualify all such grants as PERBAs. 99 Ibid at p 1. 100 Ibid at p 3. -- 26 of 28 -- 27 Conclusion [140] I am satisfied that, before 23 December 1996, Mr Dorante and Mr Sabatino accrued a legally enforceable right to the grant of leases over the areas applied for and approved under the 1985 LHA. [141] That right survived the repeal of the 1985 LHA. [142] The 2013 LHA provides the mechanism to produce the act in exercise of that pre- existing right. [143] Accordingly, the grant of leases in accordance with the 2013 LHA is a PERBA under s 24IB(a). [144] If I am wrong in concluding the right accrued under the 1985 LHA is a legally enforceable right or that it survived the repeal of that Act, I am satisfied the requirements of s 24IB(b) are established. [145] The Minister accepts an offer, commitment, arrangement or undertaking can be contained in a statute.101 An offer, commitment, arrangement or undertaking must be something different to a legally enforceable right; but a justified expectation might not be sufficient.102 [146] An offer, commitment, arrangement or undertaking by the State to grant a lease arose from the function the approval played in the statutory regime of the 1985 LHA. The Minister did not argue to the contrary. The Minister did not assert any other requirement of s 24IB(b) was not fulfilled. [147] The contest appeared to relate only to the causal relationship between the offer, commitment, arrangement or undertaking and the grant. [148] For reasons stated at [102] to [139], the grant of leases under the 2013 LHA has sufficient causal relationship to be an act giving effect to, or otherwise because of, the approval under the 1985 LHA. [149] I find the requirements of both sub-paragraphs of s 24IB are fulfilled. 101 First respondent’s submissions, at [61]. 102 Western Australia v Graham, at [134]. -- 27 of 28 -- 28 [150] Accordingly, I am satisfied the grant of the leases under the 2013 LHA would be PERBAs. Any native title rights or interests the claimants may establish would be extinguished by the grant of the leases. The claimants’ prospective right to compensation on extinguishment is a claim against the State of Queensland, not Mr Dorante and Mr Sabatino. Both extinguishment of native title and the right to compensation, if they are exist, are the consequence of, not a practical obstacle to, the grant of the leases. Orders [151] I make the following orders: 1. The application for the interlocutory applicants to be joined as a party to the appeals is refused. 2. The interlocutory applicants have leave to intervene to the extent that they may make submissions about the nature and scope of the appeal and whether their claim is a practical obstacle to the grant of the leases. 3. The appeals are allowed. 4. The Minister is directed to change the statement of reasons (obstacles) the subject of each appeal to state that there is no practical obstacle to the grant of a lease to satisfy the lease entitlement. [152] I will hear from the parties about any ancillary orders, including costs. FY KINGHAM PRESIDENT OF THE LAND COURT -- 28 of 28 --