IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P59 of 2000
B e t w e e n -
THE STATE OF WESTERN AUSTRALIA
Appellant
and
BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Respondents
CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Second Respondents
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents
Office of the Registry
Perth No P62 of 2000
B e t w e e n -
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Appellant
and
BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Respondents
CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Second Respondents
Office of the Registry
Perth No P63 of 2000
B e t w e e n -
CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Appellants
and
THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent
CONSERVATION LAND CORPORATION
Second Respondent
THE STATE OF WESTERN AUSTRALIA
Third Respondent
BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Fourth Respondents
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
Fifth Respondents
Office of the Registry
Perth No P67 of 2000
B e t w e e n -
BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Appellants
and
CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD
First Respondents
CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Second Respondents
THE ATTORNEY‑GENERAL OF THE NORTHERN TERRITORY
Third Respondent
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
Fourth Respondents
THE STATE OF WESTERN AUSTRALIA
Fifth Respondent
KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE
Sixth Respondent
ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J.A. CARATI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNURRA WATER‑SKI CLUB
Seventh Respondents
ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE
Eighth Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 7 MARCH 2001, AT 10.14 AM
(Continued from 6/3/01)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Barker.
MR BARKER: Thank you, your Honour. Three preliminary matters, if I may. Yesterday in the course of Dr Bartlett’s submissions Justice Gaudron, I think, was asking about the Ord Project. For the information of the Court, the project is described in the judgment of the majority below between paragraphs [10] and [15], and also described in Justice Lee’s judgment at 159 ALR 490 and 491. A second matter in the course of submissions about the permit to occupy yesterday, I think it was stated that the grant was to the Minister. In fact, the grant was to the body which was a State trading concern ‑ ‑ ‑
McHUGH J: I was going to ask about that yesterday. Was that corporation the Crown?
MR BARKER: I think it is, under the State Trading Concerns Act, your Honour, but the relevant reference in the judgment of the majority below is at [370] and in Justice Lee’s judgment at 570 to 572. If I could just briefly take you to the primary judge’s judgment at 159 ALR 570. Commencing at about line 43, there is a reference to that “permit to occupy” granted:
under s 16 of the Land Act 1898 (WA) to the “Wyndham Freezing, Canning, and Meat Exports Work, incorporated as a State Trading Concern” –
and the Act is there referred to. There is an analysis there, and also at [370] to [373] of the majority below.
The point we ultimately wish to make is the one that Justice Lee made at 572 of his judgment in the final paragraph between lines 15 and 23 and that is that one should not equate the grant of a permit to occupy with a fee simple. In other words, one should not seek to find total extinguishment on the basis that it is a fee simple when a fee simple never issued. We also, in the context we were arguing it yesterday, as well, seek to make the point concerning the approach of the court below, the majority. That is made in the last 3 lines from 21 to 23. That this was a ‑ ‑ ‑
McHUGH J: It is a little surprising, though, is it not? I mean, in that case the permit gave an entitlement to obtain an estate in fee simple when it was assumed throughout all the years that the concern did have a fee simple and then it turns it did not. So it has now said, “Well, you only had the permits, you did not have the fee simple; therefore, it is not extinguished”. It does seem a bit odd.
MR BARKER: The Crown body under the State Trading Concerns Act, with a permit to occupy, nothing ever issues and, ultimately, it is on a very large portion of land, your Honour.
McHUGH J: Yes.
MR BARKER: We say that that is the question of approach when it comes to impossibility of co-existence that raises the same issue as in Wik.
If I can leave that, your Honours, and make brief reference to a document that I have handed up to the Court this morning headed “Examples of ‘Rights’, entitlements, obligations and interests referred to in judgement of Lee J”, which we have prepared. I do not intend to linger on this. If you could note the fourth dot point on the first page which says “Only to care for country”; that should read “Duty to care for country”. This is a set of examples, I think, in answering some questions from Justice Hayne yesterday. I indicated a number of these by reference to his Honour’s judgment and this simply seeks to identify the particular references by page and line number. If I can turn from that to ground 6 of our appeal ‑ ‑ ‑
CALLINAN J: Mr Barker, just before you go on, at page 570 in Justice Lee’s judgment, at about line 35:
The purpose of the grant applied for was “For the Use and Requirements of the Government -
and so on, and then -
Section 42 provided for the vesting of a reserve in a municipality or other person in trust for a public purpose or grant of fee simple -
Now, a grant of fee simple was never, in fact, made, is that right?
MR BARKER: That is correct.
CALLINAN J: But, presumably, therefore, on the approval of the application, it then became vested in trust or became held in trust for a public purpose. Is that right?
MR BARKER: Well, it was followed by the applications as it says at 43, your Honour, for a permit to occupy, which is a separate statutory instrument under the Land Act.
CALLINAN J: Yes, but the signing of the application was the signing of the application under section 42 of the Land Act; is that right?
MR BARKER: It was an application made for that purpose.
CALLINAN J: Would it not follow, then, that ‑ ‑ ‑
MR BARKER: It is not clear that that was granted, your Honour.
CALLINAN J: - - - section 42 would apply and it would be regarded as being held in trust for public purpose?
MR BARKER: As I understand it, but I may be corrected, that application was not granted.
CALLINAN J: Was not granted.
MR BARKER: It depended on the permit to occupy the interest and that is what the court below focused on.
CALLINAN J: But what about line 41? It says:
Detail on the application indicate that the application was approved on the 2nd of October 1918.
MR BARKER: Sorry, which line is your Honour referring to?
CALLINAN J: Lines 41 and 42. The application seems to have been approved although in the meantime something else may have happened in September, but on the approval of the application would not the land, therefore, be held on trust for public purposes?
MR BARKER: Yes, it may be, your Honour. I will have to consider that particular point. Perhaps I can come back to.
GUMMOW J: Well, it is a point that has some relation to the matter the Chief Justice raised yesterday, which the New South Wales Government House Case 16 CLR 404. At 462 there is a reference in the wastelands legislation to land that has been dedicated and set apart for some public use.
MR BARKER: Yes.
GUMMOW J: This is a very old idea that is repeated in section 42. There is no grant or fee simple. The Crown just sets it apart and dedicates it to some public use.
MR BARKER: Yes. As we understand the governing principle for extinguishment, it requires both that appropriation for setting aside and the use. I think we conceded in answering the Chief Justice’s questions on that example yesterday that the building of a permanent structure of that kind would extinguish native title.
HAYNE J: Can I take up that point and do so by reference to a document you provided us with this morning, “Examples of ‘Rights’, entitlements”, et cetera.
MR BARKER: Can I make just a small further amendment to that, your Honour. I have abbreviated it somewhat, but in the fifth dot point, I think that should more particularly read as follows: delete the “The” at the beginning. It should read “In particular”, and in the second line it should be “art sites”, not “and sites”, and the fourth word should not be “alter”, it should be “other”. I am sorry, it has been done quickly with those errors.
HAYNE J: Yes. Of the dot points that are there made, only the third seems to me to be cast in terms of right as opposed to obligation. Leave aside the first, which is a general conclusory statement, you have only the right to speak for the land. Others are consistent with use in fact, obligations, but not with rights. That seems to be translated in the determination of the primary judge, which on one branch of your argument you seek to have reinstated, to a determination that there exists a right to make decisions about use and enjoyment of the determination area.
That translation I can understand. It may be that it also finds reflection in the use of the word “possess” in the first of the rights identified: “possess, occupy, use and enjoy”. I fasten on “possess” because the others, “occupy, use and enjoy”, would not carry with them necessarily – though they may – the notion of exclusivity or capacity to exclude. If the central basis, if on one view of your document the only basis, for exclusivity is the right to speak for the country, then it is that right which has to be set against other rights, obligations, duties, et cetera, that are said to be competing and extinguishing, in effect, which are to be found in legislation.
Now, that form of analysis is one which you may say is flawed. If it is, I would be much assisted by you identifying where the flaws lie. If it is not a form of analysis that is flawed it requires the closest attention, it seems to me, to the identification of the rights, duties, et cetera, in the statutes or instruments made under statute that are said to have this extinguishing effect but to compare it with the right to speak for country.
MR BARKER: Your Honour, if I can respond briefly, because I need to move along this morning to some other matters. The determination of course made by the trial judge was, in most respects, adopted by the court below so that ‑ ‑ ‑
GUMMOW J: That is part of the problem.
HAYNE J: And the construction of that determination of the Full Court is not without profound difficulty.
MR BARKER: It is not the subject of any appeal to this Court, your Honour, and it is explained by what the majority themselves say, that on the evidence before them the array of rights, interests and entitlements and the like are so vast that there is an entitlement to an order in the terms of paragraphs (3), (4) and (5) of the determination which is found in ‑ ‑ ‑
GUMMOW J: At 159, 639.
MR BARKER: Yes. I am looking at the appeal book, volume 5, at 833 as well. So, we say it is an uncontentious issue that on these findings, examples of which are provided in the document, those sorts of orders should be made. The only question is the question of exclusivity.
Our response is, your Honour, that as against persons who have rights under statute, the rights are not in that sense exclusive, they cannot be exercised against those persons, but they can co-exist with the rights that those persons have.
CALLINAN J: How can that be so in relation to the last dot point, “To care for and control land”?
MR BARKER: Well, if one considers, for example, an important spiritual site, then an exclusive right to make ‑ ‑ ‑
CALLINAN J: Well, leave aside the sites of ritual or spiritual significance.
MR BARKER: It is not that there is any particular difference in the example I give your Honour, it just highlights the point that ‑ ‑ ‑
CALLINAN J: I do not know. I looked at what Justice Lee said at page 542 and I did not think his findings went so far as to hold that there is a right to control. There is a right to be consulted and certain courtesy rights, but it did not seem to me to be a finding that there was any right to control.
MR BARKER: That was a courtesy right in respect of other members of the broader community.
CALLINAN J: Yes, but I do not see the word “control” in there anywhere in that passage. I may have missed it. It is an ambitious claim, is it not?
MR BARKER: It is the sixth‑last dot point on the second page, “Control of parts of areas occupied by the community”. That is a reference to the estate areas, I believe, and that that, when one takes the other references there, including obligations to care for country and the particular one that Justice Hayne referred to earlier, the right of dawawang to speak the country or speak with the land, together make it.
To come back, if I may, to the exclusivity point, it certainly, we say, is the case that that exclusive right can work in conjunction with other interests. There can be a need for outside parties to consult with more than the one legal right holder under the general law. There may be a need to consult with the Aboriginal native title holder in respect of any particular decision relating to the use of country, and I use a site as an example.
So the exclusive nature of it has meaning as against persons who do not have such rights in relation to the land at all. But if I may later come back to the point of exclusivity because Justice Gaudron raised it yesterday and I wanted to try and respond to her question before we finished. If I can turn, your Honours, to ground 6. This is dealt with under our section M of our written submissions at pages 237 to 245 and it has to do with the finding of the majority below that section 23 of the Western Australia Wildlife Conservation Act 1950 extinguished the right to take fauna in a reserve or wildlife sanctuary.
If I could invite your Honours to go to the majority’s reasons at [499] and also, as I do that, ask your Honours to have regard to the statutory provision which appears in the State’s bundle of legislation, volume 8, tab 112. At page 2500 in that bundle under, as I say, tab 112, section 23 appears and your Honours will see that it, in essence, provides a person who is Aboriginal with a right to take fauna and flora “upon Crown land or upon any other land” ‑ ‑ ‑
GUMMOW J: Well, section 23 has been amended from time to time, but what particular time is the crucial time?
MR BARKER: I think this is the provision focused on, your Honour, in the subject of the finding.
GUMMOW J: Maybe.
GAUDRON J: One may need to have the history of the section.
GUMMOW J: At what time is it said the section speaks, relevantly, for this litigation?
MR BARKER: The relevant time, I think, that everyone was focusing on was immediately prior to the Racial Discrimination Act operating.
GUMMOW J: So it is pre-76?
MR BARKER: Thirty-first October, 75.
GUMMOW J: Thirty-one October, 75.
MR BARKER: But the relevant part of it is that which says “not being a nature reserve or wildlife sanctuary”. You will see at paragraph [499] - and if your Honours are at the 170 ALR copy of the report - about line 25, the majority was not satisfied that a provision like this led to extinguishment of the native title right. But at [500], their Honours noted that the exception, about line 39:
by its terms does not exempt Aboriginal people from the prohibition against taking fauna in a nature reserve or wildlife sanctuary. Within such a reserve or sanctuary the prohibition is complete subject only to the other provisions of the Act.
Then at [504], their Honours went on to say that:
Notwithstanding that the Act and regulations recognise circumstances where a licence to take fauna in a nature reserve may be granted, we consider the terms of s 23 so clearly circumscribe the rights of Aboriginal people that native title rights to take fauna in a nature reserve or wildlife sanctuary are clearly and plainly extinguished by the Act.
Your Honours, the relevant point we say and the error made is that that such a finding could be made, notwithstanding the Act and the regulations do “recognise circumstances where a licence to take fauna” may be issued.
If I can take you to our written submissions at paragraph 240.
HAYNE J: Just for completeness, Mr Barker, provisions of broadly similar effect seems to have been in since at least the 1950 Act, see pages 2414, 2415 in the same volume.
MR BARKER: Yes, thank you, your Honour.
At 240 – and I do not seek to for obvious reasons, take your Honours to all of these provisions – but if one goes to the relevant regulations that we recite at paragraph 240 and which are set out in the State’s volume of materials at tab 112, one sees that fauna may indeed be taken in a sanctuary in the circumstances that we have referred to; and also that the destruction of vermin, as we point out over at page 53 of our submissions in that same paragraph, may occur with an appropriate licence, and a “vermin” is defined to include “dingoes, dogs, emus, foxes, kangaroos, pigs, rabbits, wombats” and so on. Our point is, really this simple, with respect, that the prohibition that appears in section 23 preventing the entry of the sanctuary for taking fauna may be relieved against by these other provisions of the Act and we say that in those circumstances, the ratio of the Court’s decision in Yanner v Eaton applies exactly. In those circumstances, there is no extinguishment, there is mere regulation of a native title.
If I may turn from that issue, your Honours, to the next ground I wish to deal with this morning, ground 12, this is dealt with in section O of our written submissions. This is dealing with two resumptions of land under the Rights in Water and Irrigation Act in Western Australia and the Public Works Act and our submissions are at paragraphs 263 and following. Again, if I can take your Honours to the findings of the majority below, at paragraphs [429] and [430], you will see something of the circumstances which give rise to this issue. Land which was not initially in the Ord Irrigation District was compulsorily acquired by virtue of the powers under those two Acts to be included in that district as part of an extension to the Ord Project, and one of the resumptions was in 1972, prior to the commencement of the operation of the RDA and the second in 1975 after it, of course. Their Honours found that because there had been a resumption under the legislation in the terms that appear at the end of paragraph [431] that that meant – as, for example, in the case of Fejo – native title was wholly extinguished.
The vesting orders appear, your Honours, in our supplementary book of materials at pages 69 and 70. They perhaps do not add much at all to what appears in the judgment, but they do indicate that the land resumption is in respect of the Ord River Irrigation Project (Packsaddle Plains Area) Extension, which is described as the relevant public work. Your Honours, we contend that this finding is erroneous for two reasons. The first is that the taking of the interests under section 17(1) of the Public Works Act, the terms of which are referred to in paragraph [430] of the reasons of the majority, it does not involve the taking of any native title.
McHUGH J: That is true in terms, but it does mean that the land has gone from being held by the Crown under radical title to being held by the Crown under tenure, because it vests in it as fee simple. And, given Fejo, why does not the result follow that native title is extinguished?
MR BARKER: Your Honour, simply for this reason, that on a proper construction of the Public Works Act, we say what your Honour says is so, but the whole focus is on proprietary interests as they are understood under the general law – estates and interests in land of the kind that the Court in Stow v Mineral Holdings said are only in respect of well-established interests that we are familiar with, not native title.
GLEESON CJ: But this raises a more fundamental problem, does it not, and it is in the terms of your submission in paragraph 264. You say:
the Public Works Act 1902 did not contemplate and made no provision for native title holders ‑ ‑ ‑
in 1902. That is right, for reasons obvious.
There cannot accordingly be said to have been a clear and plain intention to extinguish native title.
Does it follow from what you say that there can never have been an intention to extinguish native title before the decision in Mabo [No 2]?
MR BARKER: No, your Honour, it does not. That proposition is put too simply by us.
GLEESON CJ: What proposition is put too simply?
MR BARKER: Pardon?
GLEESON CJ: The one in paragraph 264?
MR BARKER: Yes. The one we have put, that your Honour has referred to. Your Honour, we say that when you are dealing with legislation, as is the case with the Public Works Act, which is aimed only at the resumption of general law interests ‑ ‑ ‑
GLEESON CJ: The legislation pre-Mabo [No 2] will never be aimed at the resumption of native title interests.
MR BARKER: And for that reason, your Honour, we say that the resumption, in circumstances like that, of itself does not take native title.
GLEESON CJ: But you seem to make that a matter of intention. The logical consequence of your argument about intention appears to be that nothing that was done before the decision in Mabo [No 2] can have been done with the intention of extinguishing native title.
MR BARKER: We do not make the proposition that broadly, because it would, for example, deny Fejo.
GLEESON CJ: Yes, but why is the proposition wrong? Leave aside the fact that it is inconsistent with Fejo. Why is it wrong to say that there can never have been an intention to extinguish native title before anybody knew about native title?
MR BARKER: No, I do not say that is wrong. I conceded that native title might be extinguished, if the appropriate circumstances are there. What we are submitting, your Honour, is, in the context of the Public Works Act, compulsory resumption of land legislation - which is designed to enable public works to be carried out - there ought not be considered, as in the case of a grant of freehold, that there must necessarily be an inconsistency.
GLEESON CJ: What do you mean by the concept of an intention to extinguish native title and, in particular, how do you relate that concept to events that happened before anybody believed native title existed?
KIRBY J: May this not be simply another illustration of the danger of using the fiction of intention.
McHUGH J: Yes, I was going to say exactly the same thing.
KIRBY J: Because, to the extent that you use “intention”, you are implying that people turned their intent to it, whereas what you are really suggesting is that you look at the statute, you look at its true construction, you look at its effect and you ask whether on its effect, given what we now know about the existence of native title, it had that effect.
MR BARKER: Yes.
McHUGH J: Yes. Has not the time come to abandon this notion of intent to extinguish native title and speak in terms of whether the effect of the Act or the effect of the legislation was to extinguishment native title?
MR BARKER: With respect, we would not go that far, your Honour. We accept there are certain difficulties and ‑ ‑ ‑
McHUGH J: I know why you want to hang on to the notion of intent because it carries with it propositions about, one does not lightly attribute to a legislature an intention to do away with fundamental rights.
MR BARKER: That is, of course, one of the bedrock principles, we would say, of common law, certainly, and it is applicable no less in relation to native title and we do not ‑ ‑ ‑
KIRBY J: But that can still exist if you adopt the principle, instead of wording it in terms of intention in terms of its effect and operation. It is simply objectifying - instead of this misleading use of the word “intention” which I never use.
GLEESON CJ: Then, where does clarity and plainness come into the matter? It either has an effect or it does not have an effect. What is added to the proposition by the adjectives “clear and plain” except rhetoric?
MR BARKER: Your Honour, we say the authorities which we have cited previously in respect of that issue are long established. No one is suggesting, least of all us, that some subjective test is required. That is ruled out, on the authorities. We do not seek to reinstate that.
GLEESON CJ: Well, then, all I am asking you is what you are talking about when you use the expression “intention to extinguish native title” in relation to something done by somebody who did not know native title existed?
MR BARKER: Your Honour, we say this, that it is still appropriate to apply such a test – “clear and plain intention”. You have, in the circumstances, to look at the nature and operation of legislation and the other matters that, with respect, Justice Kirby referred to. If one approaches it in that way, also having regard to the fact that we are dealing with the possible permanent confiscation of a property right held by indigenous people then “the clear and plain intent” aspect reinforces that notion, but one does have to look at the construction of the Act, in all the circumstances.
All we say here is, not some superimposed look for intention here, but if you look at the Public Works Act, seeking to advance public works in the State of Western Australia and land being taken for that purpose, it is clear that this Act was only and is by its very terms only dealing with the notions of estates and interests the Court, for example, held to be relevant in Stow v Mineral Holdings, so it does not pick up native title. The question really is whether, having vested land and freedom from all of the general law estates and interests, it does also have the effect of removing native title. Can I illustrate the point ‑ ‑ ‑
GLEESON CJ: Before you do so, you made a written submission in paragraph 264. You do not appear enthusiastic about supporting that submission. The submission says, rightly and obviously:
the Public Works Act 1902 did not contemplate and made no provision for native title holders –
in 1902. Of course it did not. You then say in your submission:
There cannot accordingly be said to have been a clear and plain intention to extinguish native title.
Now, when pressed with the logical consequence of that process of reasoning you say, “Well, perhaps it is overstated. Perhaps it is wrong”. I am asking you what is right? What do you wish to substitute for what appears in paragraph 264?
MR BARKER: Your Honour, we agree that at the time the Public Works Act was first enacted with those provisions, the notion of native title was not present and that it was not enacted with native title in mind, but we do say, that aside, that when one then has to examine the legislation to seek to understand how it operates and what effect, if any, it can be said to have on native title, that on its proper construction, having regard to the fundamental principles to which we have referred, one should not find the clear and plain intention to extinguish native title.
McHUGH J: But why do you keep using the fiction of intention? Are not your purposes served by a rule which says you do not give legislation the construction that has the effect of abolishing native unless the words plainly indicate that that is the effect of the legislation.
MR BARKER: Plainly and clearly indicate.
McHUGH J: Does that not serve your purpose?
MR BARKER: It does, but there is, with respect, your Honour, we would suggest, a danger in the Court adopting new formulations, just as in criminal law for many years ‑ ‑ ‑
KIRBY J: You will never get me to use “intention”. Justice McHugh taught me in the Court of Appeal not to do it and I have never done it since, so I will not use it.
GLEESON CJ: How do you relate the concept of “clear and plain intention to extinguish native title” to what actually happened in Fejo?
MR BARKER: Your Honour, the Court’s finding in Fejo was that the grant of a fee simple to a private individual or to any person gives them that array of rights and interests that simply blankets completely any continued enjoyment of the native title right or interest.
GLEESON CJ: I understand that. If you still rely on the concept of “intention”, I want to relate it to that decision. What was the intention at work there?
MR BARKER: To give the grantee every conceivable right free of every other.
GLEESON CJ: That I understand. So what you are talking about is an intention to do something which is inconsistent with the continued existence of native title. That is a different and, I would have thought, comprehensible concept of “intention”. The intention is not an intention related to native title. The intention is related to achieving something which happens to be inconsistent with native title. Is that what you are talking about?
MR BARKER: We are prepared to adopt that approach. I do not think it is, with respect, your Honour, any different in substance to that which we have put forward. We say that one has to look at the effect and operation of any Act, any grant, any piece of legislation to determine whether native title can continue to exist.
GLEESON CJ: It is different in substance if you adhere to the line of argument in paragraph 264, which appears to be no contemplation of native title, therefore no intention to abolish it. If you withdraw that, then there may be no difficulty.
MR BARKER: We do say that when you come to something like the Public Works Act, you have to read it to see what it does. What rights and interests does it operate in respect of?
GLEESON CJ: That is a very orthodox approach.
MR BARKER: Well, we seek to adopt that approach. The result then is that you do not see in the terms of the legislation any operation except in relation to the general law rights and estates and interests in property. It is not in that sense intended to apply in respect of native title rights or interests and, in fact, the State Public Works Act – that is, its more recent legislation – has now dealt specifically with the topic of native title.
What we say is because it is public works legislation, and public works themselves do not necessarily extinguish native title, you have to look for more. That is why it is different from this position in Fejo. Could I give an example, your Honour, of the proposition we seek to put there. It is accepted, I think, generally, certainly by reason of what Justice Brennan said in Mabo [No 2] at about page 70 in his summary point, that where you have land set aside for a national park, you do not have necessary inconsistency with native title. Native title rights and interests are capable of continued enjoyment.
If one starts with that proposition and you have this circumstance, where the government of the day in Western Australia decide that they would like to set up a new national park in a particular area and for that purpose determine that it is appropriate to resume, under the Public Works Act, a piece of land upon which it is also accepted that there is no extinguished or, if one likes, totally extinguished native title. For example, it might be a pastoral lease of the kind which has continued native title on it. Now, if it is correct to say that the mere act of resuming, vesting in the terms that there has been a vesting here ‑ ‑ ‑
GAUDRON J: Which is to say an estate in fee simple.
MR BARKER: Yes, free from all trusts, mortgages, charges, obligations, estate interests, rights of way and other easements whatsoever. Then, having put the land into that form, set up the national park, that the rights of native title holders are thereby extinguished, and we say that is a real fiction and fails to address the substance of what is happening in that process.
McHUGH J: Yes, but if somebody has got a cattle route, stock route, across there, it is gone by virtue of section 17 of the legislation. It is difficult to think that something as fragile as native title can remain when estates and interests and easements are abolished. Is this point of such great importance in this particular case?
MR BARKER: With respect, your Honour, yes, because the example I have just given is a real example in the State of Western Australia. You see, in the other example your Honour gives, with respect, it is intended – if I can use the word in this context, it is not expected when there is a national park that there will be a stock route going through it and special arrangements would have been made not to take the stock route if that were the case, but when it is understood under the law that a national park does not necessarily extinguish native title rights and the pre-existing estate or interest has not extinguished the native title rights in whole or in part, if I can use the expression, then why should it be that the filtering process of the acquisition achieves that outcome.
GAUDRON J: And vesting an estate in fee simple.
MR BARKER: Well, that, with respect, your Honour, can be the only answer, that because ‑ ‑ ‑
GAUDRON J: Well, that is right and that is to do with the nature of an estate in fee simple, is it not? It is to do with the incidents that attach to such an estate.
MR BARKER: With respect, your Honour, the process of acquiring the land to create the national park is the whole purpose of the transaction. It is all done under the Public Works Act to enable the public work to be achieved.
KIRBY J: But you are trying to apply a test of the facts, the practicalities. Of course, from your client’s point of view it is just a piece of paper and they go on with their lives and then the facts may not change at all. But from the theory of the law’s point of view and the incidence of the law, it is a significant change. It is a change that the Court pointed to in Fejo, and unless, it seems to me, we are to revisit – I have a recollection that in Fejo there were undeveloped lands involved, there was scrub land and bush land and so on, but the Court said you do not look just at the user, you look at the legal incidence.
MR BARKER: Yes, but in circumstances, with respect, where there is no statutory context such as there is in examples that I am putting to the Court. There is a disposition of land finally in fee simple subject to no reservations without any statutory context. You can, we submit, come to the circumstances of a compulsory acquisition where you may have a vesting order which says that the public purpose is the creation of a national park and yet the order upon the compulsory acquisition of the land from the prior pastoral leaseholder will say it vests in fee simple and, of course, what is said against us, as Justice Gaudron put the proposition, fee simple QED. We say it cannot be as simple as that in the statutory context.
GAUDRON J: Why? Because fee simple does not mean fee simple?
MR BARKER: In this context, your Honour, we would say that it is not unlike the proposition left open in Fejo. The point in Fejo was made in these terms, that this was a fee simple that was not subject to any reservations or the like. If it had been, the question would still be open. If you have an absolute fee simple, no reservations, it will extinguish. Here we have the equivalent of the reservation. We have the identification of an acquisition for a public work.
GAUDRON J: So I take it then that you say fee simple does not mean fee simple in that legislative provision?
MR BARKER: We say that in statutory circumstances, just as in Wik, where there is a pastoral lease and it appears to create exclusive possession rights and the like, that that is a false issue. The fee simple vesting here is a false issue in this context. The example we give to make it quite blunt, of course, is the national park issue where no one would argue that there was extinguishment of native title before or after ‑ ‑ ‑
GAUDRON J: One of the things that happens when you get a fee simple is that you can dispose of a fee simple. Now, it may well be that you have a national park, you vest it in fee simple, and it is decided not to pursue the national park but to sell it, for example. That is one of the things that fee simple is about.
MR BARKER: Well, your Honour, with respect, the law relating to ‑ ‑ ‑
GAUDRON J: And if you fetter the fee simple, if you purport to fetter the fee simple, you simply cannot do it.
McHUGH J: Councils in New South Wales, at least, often acquire land for a public purpose. It is vested in them as fee simple and they end up selling it, they do not go ahead with the public purpose.
MR BARKER: And there is often litigation about the breach in public purposes. The point I was going to make with respect, if I may, in response to Justice Gaudron’s point, is that we are not dealing just with a fee simple. You may have a fee simple with reservations ‑ ‑ ‑
GAUDRON J: Well, what are we dealing with? If we are not dealing with a fee simple, what are we dealing with?
HAYNE J: If we are not dealing with a fee simple in the light of subsection (2), what are we dealing with, of:
the estate and interest of every person in such land, whether legal or equitable, shall be deemed to have been converted into a claim for compensation -
What is the effect of it?
MR BARKER: The effect of subsection (2), your Honour, is that it applies only to those people who fall under it. It is another indication, with respect, that native title interests are still at large here. There is no right of compensation ‑ ‑ ‑
GAUDRON J: Why is there not a right of compensation under subsection (2)?
MR BARKER: Because, on its proper construction ‑ ‑ ‑
GAUDRON J: “the estate and interest” ‑ ‑ ‑
HAYNE J: “of every person”.
GAUDRON J: Certainly, on the analysis that Justice Deane and I took in Mabo there would be a right to compensation.
MR BARKER: The expression “the estate and interest”, where it appears in subsection 18(2) of the Public Works Act qualifies the “every person” that appears after it, in our submission, your Honour Justice Hayne. Therefore, it is only certain types of persons, those holding recognised estates and interests as discussed in Stow v Mineral Holdings that would have the benefit of that compensation right, Aboriginal people left uncompensated by the taking. We have referred in our submissions to the Native Title Act Case ‑ ‑ ‑
GAUDRON J: That may be so, in fact, but it is an entirely different proposition to say that there was no right to compensation in law.
GUMMOW J: What is the citation of the Stow Case?
MR BARKER: Stow v Mineral Holdings (1977) 180 CLR 295, your Honour.
GUMMOW J: Thank you.
MR BARKER: Your Honours, if I might move along to the next matter, that is our grounds 13 and 20 which raise questions relating to the Racial Discrimination Act. These are dealt with in section P of our written submissions, paragraphs 266 through to 288. At paragraph 266 we set out the particular matters that we seek to agitate here. Following the enactment of the Racial Discrimination Act there were certain Acts speaking about the lower case A including legislation, grants of mining leases and the later resumption of land that I have just been referring to which have seen the vesting order.
GAUDRON J: Could I just ask a question? Am I right in thinking that this question is, to some extent, dependent on the earlier questions, with respect to the extinguishment by pastoral leases and the like, or it is an independent question?
MR BARKER: In all of the cases, your Honour, where we are challenging the validity of these Acts, there were prior pastoral leases.
GAUDRON J: The Full Court did not have to determine them, is that right, because of the view it took about the pastoral leases?
MR BARKER: It did deal with these issues to some extent, yes, and found that these particular Acts extinguished native title and also expressed the view that there was no inconsistency with section 9 of the Racial Discrimination Act.
GAUDRON J: Did the Full Federal Court have to do that?
MR BARKER: Only if it were satisfied and it was clear that there had been prior total extinguishment by virtue of an earlier pastoral lease or, as is the case in some of the areas where the grants exist, that they were within the Ord Project Area. Of course, the majority decided that all the land within the Ord Project Area totally extinguished native title, so there would not have been any need to determine it, but some grants of mining leases fall outside that area.
Your Honours, we seek to deal with the point this way. Your Honours will appreciate by reference to section 228(2)(b) of the Native Title Act that the Racial Discrimination Act comes into play. If I may refer to the section briefly. There is a definition of “past act” and it is subsection (2)(b) which says:
apart from this Act –
that is to say the Native Title Act –
the act –
in question, I interpolate –
was invalid to any extent, but it would have been valid to that extent if the native title did not exist –
The question is whether these Acts in question that we have identified were invalid to any extent apart from this Act, because this Act then validates them as either category A, B, C or D past acts. Categories C and D past acts are subject to the non‑extinguishment principle which is defined at section 238. I think Justice Gummow referred to it yesterday. So the question is whether the Racial Discrimination Act – we do not point to any other Act – caused the invalidity of these provisions.
Sections 9 and 10 of the Racial Discrimination Act we say are of relevance and we particularly, for the purpose of the arguments this morning, focus on section 10.
McHUGH J: When you talk about these provisions, you are talking about the Mining Act and the Public Works Act and the Rights in Water and Irrigation Act, are you?
MR BARKER: Those matters identified in paragraph 266, your Honour, in the two dot points: the ratifying Act 1981 in respect of the Argyle Project, the Argyle special agreement mining lease, the mining and general purpose leases granted under the Mining Act and the resumption in December 1975, to which I have already referred this morning. We say that there is invalidity primarily by reason of non‑compliance with section 10 of the Racial Discrimination Act.
Can I take your Honours in that regard to the decision of the Court in Mabo (No 1), which is No 15 on our list of authorities. I take your Honours first to page 215 of the report in the joint judgment of Justices Brennan, Toohey and your Honour Justice Gaudron. Section 10(1) is set out there and it provides of course that:
If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race . . . do not enjoy a right that is enjoyed by persons of another race . . . or enjoy a right to a more limited extent than persons of another race . . . then, notwithstanding anything in that law, persons of the first‑mentioned race . . . shall, by force of this section, enjoy that right to the same extent as persons of that other race –
It is correct to say, as other parties have in submissions, particularly the Commonwealth and the State, that there is no difference between sections 9 and 10. Section 9 makes unlawful acts done that prefer on the basis of race; section 10 is designed clearly to achieve equality of the legal rights, or the human rights, I should say, identified in the Racial Discrimination Act, between people. The Act clearly recognises, as indicated at pages 216 and 217 of the report, by reference to Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, “the right to own property”, “the right to inherit” and so on. Members of the Court will be familiar with those types of provisions by reason not only of this decision, but also that of the Native Title Act Case.
In some circumstances, it might be that any breach of the section could be remedied by, for example, compensation, or some other act. Here, our submission is that it is only possible to remedy the breach of section 10 we contend for by, in effect, making the act complained of have no effect. The reason we say section 10 has an operation in this instance is best, in our submission, provided by the reasons of Justice Deane at pages 230 and 231. That is, in our submission, on a proper analysis of the effect and operation of the legislation that we have pointed to in our written submissions, the only rights that are affected are the native title rights. At the foot of page 230, third last line, his Honour said:
In other words, on the postulated assumption, the practical operation and effect of the Act –
that is, the Queensland Act –
would be to extinguish only traditional proprietary rights and interests whose ultimate source predated annexation while leaving intact rights and interests whose ultimate source lay in the European law ‑ ‑ ‑
I might also point to the principle of construction that appears further up page 230, about point three on the page, where his Honour says:
As its opening words –
that is, section 10’s opening words –
(“If, by reason of…”) make clear, it is concerned with the operation and effect of laws.
So we say that if there is a law which authorises the grant of a mining lease or the resumption of land, then the act of the resumption, the grant of the lease, as well as particular provisions of the Act ‑ ‑ ‑
GAUDRON J: But one was dealing with somewhat different legislation there, was one not? Which purported to, in its terms, extinguish native title.
MR BARKER: Yes.
GAUDRON J: And nothing more.
MR BARKER: Yes.
GAUDRON J: One comes back to the antecedent question, with respect to this legislation, does one not, of the compensation clause and its meaning and effect. I would not have thought that question was concluded by Stow, to which you made reference earlier.
MR BARKER: Well, your Honour, in our submission and having regard to the time, I probably cannot fully develop orally these points, but if I can take your Honour, firstly, to page 59 of our written submissions, we commence an analysis of mineral tenements, first, the ratifying Act and the special agreement mining lease, and then further down the mining and general purposes leases that are issued under the Mining Act, to draw the distinctions ‑ ‑ ‑
GAUDRON J: So we come back to the Act. You get powers of resumption of land under the Public Works Act.
MR BARKER: Then we deal with the resumption proposition, your Honour, at page 60, commencing at paragraph 282 and we have, of course, already this morning to some extent looked at that issue. The point we make, and this really is why the Racial Discrimination Act is there, that if the Court were to find against us about the resumption arguments that were put earlier, the essential discriminatory nature is nonetheless apparent, that is, Aboriginal people have been treated differently, their rights and their security of native title has been treated differently under these various pieces of legislation, resulting in those grants from other persons holding rights and interests in the community.
CALLINAN J: How are they treated differently by not being given a notice, for example?
MR BARKER: No right to appear on a mining warden’s hearing in relation to the grant of a mining lease, your Honour, and be able to ‑ ‑ ‑
CALLINAN J: But would that all stem from the fact that they had not been given any notice under the Acts? Is that the ‑ ‑ ‑
MR BARKER: That would be one of the consequences. The way, no doubt, it works in ‑ ‑ ‑
CALLINAN J: What was the discriminatory act or discriminatory omission, a failure to give them a notice of intended resumption or the grant of a mining tenement of some kind?
MR BARKER: It evidences the lack of security of the tenure.
CALLINAN J: No, no, what was the discriminatory act under section 10 or what was – you are talking about the consequence. I want to know what produced that consequence.
MR BARKER: What produces the consequence is the law of the State of Western Australia, the Mining Act, which does not permit the holders of native title to enjoy the same procedural rights in respect of it ‑ ‑ ‑
CALLINAN J: One of those procedural rights is a right to receive a notice, is it, of an intended grant of some kind?
MR BARKER: Yes.
CALLINAN J: Is that right? Is there anything else?
MR BARKER: Yes, there is. We ultimately point to the fact, as we do at paragraph 279 of our written submissions, that section 113 of the Mining Act recognises that the grant of a mining lease does not extinguish the title or interests that exist in that land and pre-exist the grant of the mining tenement. The finding here, of course, in the court below, is that the mining lease has the extinguishing effect.
GAUDRON J: Where do we find section 113 set out?
MR BARKER: It is in volume 8, I think, of the State’s – no, sorry, that is incorrect, your Honour. It is, I think, volume 5. It is in tabs 87 and 88 and I think it is volume 5 – volume 4, I apologise. I apologise, your Honour. There is more than one copy of this Act. We have the 1996 reprint in volume 5 of the State’s legislation, No 88.
GAUDRON J: Now, is “owner” defined?
MR BARKER: Yes, it is, your Honour, and we submit plainly it does not include a native title holder.
GAUDRON J: Let us have a look.
MR BARKER: In volume 5 of these materials the definition of “owner” commences at page 1179.
GLEESON CJ: Now, Mr Barker, you are eating into Mr Basten’s time.
MR BARKER: Yes, I am, your Honour. The propositions, we say respectfully, that point to the unequal treatment are clear from the analysis we do provide in our written submissions in relation to each of these Acts and we rely on them. We principally submit that there is non‑compliance with section 10 of the Racial Discrimination Act and we rely on what Justice Deane in Mabo (No 1) at page 231 went on to say, if I might just quote that briefly, your Honour, that the only way that section 10 can operate to procure the result which the section is designed to guarantee is by overriding the provisions which would otherwise impose the liability or deny or infringe the relevant rights. We say, therefore, there is no way of remedying it other than to deny the validity of those Acts we complain of in these circumstances.
Your Honour, if I may draw our submissions in opening to a close, but there are some matters, of course, we have not been able to – I am sorry, your Honour.
GAUDRON J: Mr Barker, for my part I think it will be necessary for you to provide a note in writing at some stage after you sit down saying precisely how conflict arises with the Native Title Act in these other statutory provisions and, if it does not, what are the consequences? For example, having just looked at section 113 of the Mining Act and the definition of “owner” in paragraph (c) of that definition, one possibility may well be that native title holders are within paragraph (c), the consequence of which is that their rights revive on expiry of the mining lease and they are, therefore, no different from anyone else. But at some stage I think there will have to be a note referring to the precise legislative provisions and dealing with the alternatives, at least for my purposes there will have to be one, I think.
MR BARKER: There might be some inconsistency between the State Act and the Commonwealth Act, the Native Title Act defining extinguishment as permanent, and we will have to deal with that matter.
GLEESON CJ: Well, you can cover that in your note.
MR BARKER: Your Honour, if I might be permitted just to deal with one final matter, relating to Justice Gaudron’s question about exclusivity yesterday, which I did mention earlier this morning, and this requires me briefly to take the Court back to the judgment of the court below at paragraph [500].
Your Honours will recall when I opened yesterday morning, showing you the convenient map at the back of the State’s initially revised submissions colouring certain portions of the claim area, I think, purple, where the court below made a determination of exclusive possession, occupation, use and enjoyment rights. Those adjacent areas we have coloured a different colour and did not have the exclusivity aspect to them. Much of the area there has been described in the judgment below as mudflats, and there is a full description, I think, in the chronology we have provided to the Court of the terrain and ecology of the claim area.
As a result of the findings at [504] that I took your Honours to earlier in the judgment below, namely, that a native title right to take fauna was extinguished in nature reserves or wildlife sanctuary, and a further finding that appears at [508] concerning the regulatory provisions of the Conservation and Land Management Act in Western Australia to the effect as stated at line 49 and following that:
the exercise of control by the Authority evidences a clear and plain intention to control access to nature reserves and wildlife sanctuaries, and to make decisions regarding human activities on the land. The extinguishment of an exclusive native title right to control access also has the consequence of extinguishing an exclusive right of possession –
There was not a finding in respect of those mudflats, particularly in the nature reserves and wildlife area. There is actually a very large portion of those mudflat areas at the top of the map.
It is thus relevant to make this point in terms of the determination and I think that was your Honour Justice Gaudron’s question yesterday, “How would it be different?” If the Court were to find, as we say of course it ought, that the section 23 provision, as in Yanner, does not extinguish a native title right to take fauna and if your Honours accepted our submissions that legislation which provides management controls is mere regulation and does not extinguish anything and it is an unfortunate and an unnecessary notion to talk about the extinguishment of an exclusive right then we would be entitled to have an order for exclusive possession, et cetera, in that area at the top of Western Australia. We say that, as in Mabo, is an important indicator, of a full proprietary interest.
GAUDRON J: What about those who have control and management? I come back to this difficulty that I understand exclusive to mean exclusive.
MR BARKER: Your Honour, we appreciate the point that you make. It says that in terms of the use and management of an area other people have a say but in terms of the extinguishment ‑ ‑ ‑
GAUDRON J: And, presumably, have a right of access. Presumably, wildlife officers and so forth have a right of access.
MR BARKER: Yes, but, the telecommunications legislation that allow organisations like Telstra and Optus and the like to come treading through our properties have all sorts of regulatory powers to do those things but we do not speak of that as having any extinguishing effect and we say that it is the same here. They have a right to do something. So far as our entitlements are concerned, the native title holder is concerned ‑ ‑ ‑
GAUDRON J: There may be a difficulty that comes about as to what the common law can recognise when there are other statutory rights and it may be that we are talking at different ends of the process of determining what are the rights associated with - what are the native title rights and interests that are to be the subject of a determination, but I, for myself, do not understand how there can be a determination of an exclusive right to control access when other people have statutory rights and access.
MR BARKER: Well, your Honour, in the days before Burnie Port Authority when we had invitees, the common law recognised rights of persons to walk on to people’s properties. That does not affect the proprietary interests that exist in the property walked on. We say that the regulatory nature of laws as held in Mabo, as held in Yanner and many cases, stringent regulation does not extinguish. It is, we say, a simple and ‑ ‑ ‑
GAUDRON J: This judgment does not say that it extinguished – it extinguished the exclusive nature. So what one has to say, one simply needs another form of language, it seems to me.
MR BARKER: We agree with that, your Honour. We think it is an unnecessary form of language and it ought to have a line put through it because it is an inaccurate use of language and it is liable to ‑ ‑ ‑
GAUDRON J: And it would be equally inaccurate to assert an exclusive right to control access.
MR BARKER: Not in the circumstances, with respect, that I have put to you in relation to that area if you would make the findings that you make. There might be regulatory powers that people have under the general law but they are not proprietary. They do not affect the proprietary interests we have. They affect its enjoyment but they do not affect the proprietary interest. We say it is a very inaccurate use of the language. It brings the regulatory non‑extinguishing language in.
GAUDRON J: What is the determination? Where are the words that you seek.
MR BARKER: Well, we would simply seek, your Honour, to add to the determination at paragraph [3] of the Court below on this particular point the areas of these wildlife reserves and sanctuaries in Western Australia which are elsewhere described in the proceedings. What the effect will be is that purple‑coloured area at the top there would be increased considerably in size.
HAYNE J: There has really to be a jolly sight more careful drafting than that, Mr Barker, and therein may lie many of the difficulties. The devil in this is in the detail and in the drafting. I, for my part, would be much assisted by a paper which set out what you said the drafting can be.
MR BARKER: Yes, the wordings that have to be added, your Honour, is the map which identifies precisely that area.
GLEESON CJ: Well, you are being invited to add that to the document.
MR BARKER: Yes, indeed, your Honour, thank you. They are the submissions.
GLEESON CJ: Thank you, Mr Barker. Yes, Mr Basten.
MR BASTEN: If the Court pleases, our appeal in matter P63 is restricted to a number of issues arising in relation to land in the Northern Territory. The issues raised are discrete. Our differences with the majority in the Full Court of the Federal Court are restricted. Our concerns are, in part, the obverse of concerns raised by the Attorney for the Northern Territory in his appeal. I wish to approach the matter, if I may, in four steps. Firstly, we would ‑ ‑ ‑
McHUGH J: Just before you do, at this stage are you going to deal with your submissions in P67 and P59 as well?
MR BASTEN: What I was going to say was that that was going to be the fourth step, your Honour, to the extent that – I am sorry, it will be a fifth step. I would like to deal with our submissions in P63 and P59 first. Your Honours may appreciate that we have two sets of revised submissions, each of which has a red spine. Hopefully that helps them to be distinguished from other documents. The ones to which I now turn are those entitled, “COMBINED SUBMISSIONS FOR NINGARMARA & ORS - TERRITORY APPEALS”.
GLEESON CJ: Yes, we have that.
MR BASTEN: The other document, your Honour, deals with certain of the issues raised in P67 but in a way which differs somewhat from the way in which Mr Barker dealt with those issues. If I have time, I will come to those. To the extent that I do not, we would simply rely on them. The arguments are spelt out in some little detail.
In relation to P63 might I start by saying something about our clients and their status in these proceedings. Secondly, may I identify the acts which it was held gave rise to a level of extinguishment. Those comprise, in effect, a series of six pastoral leases and the establishment of the national park, Keep River National Park. Thirdly, may I turn to the provisions of the Native Title Act, which we say, and which we said below, govern the issues which need to be determined. Fourthly, may I identify our points of departure from the reasoning and conclusions of the Full Court. Perhaps I should note that our notice of appeal may be found in volume 5 of the joint appeal books at page 892.
Your Honours, the Territory applicants are a body of some 60 to 100 Aboriginal people. They are Miriuwung people. They live in or immediately adjacent to, for the most part, Keep River National Park, and there are three community living areas within the park on which some of them reside.
May I take your Honours first to the map at page 808. I know your Honours have been using the report in 178 ALR. In volume 4 of the joint appeal book it is the end of the second of the judgments which was given by the Full Court. I think the second judgment is not in the reported form. At page 808 your Honours will see that on the right‑hand side, down the middle of the page, there is an area which looks a little like a triangle on its side, a right‑angle triangle, which extends from the determination area to the north‑east of Lake Argyle. That area is the Keep River National Park, and the line which is ultimately a broken line down the western side, the straight line, is the boundary of the Northern Territory.
Just to take your Honours to it in a little more detail, in volume 4 of the bundle of materials at page 1635 – I am so sorry, it is volume 8. I am so sorry, it is volume 7. At page 1635 there is a map which shows in a little more detail the area with which I am concerned. On the map are marked with a number of numbers and names, particular sites of which evidence was given. At just above the name “Keep River” in the middle of the map your Honours will see an area with a dotted line around it entitled, “Police Hole”. That is the Nyawamnyawam community living area which is held under a freehold grant.
North-east of that, at the top of the area, there is a similar dotted line around an area entitled “Bindjen” - that is the second of the freehold grants of community living areas. On the eastern side of the map there is another larger area called “Bubble Bubble”. Those three areas are areas where people reside, more in the dry than in the wet.
CALLINAN J: Are they all freehold, Mr Basten?
MR BASTEN: They are all freeholds granted under specific legislation in the Northern Territory providing for living areas for the benefit of Aboriginal people. I will come to this, but in each case there was no extinguishment because of the operation of section 47A of the Native Title Act. I will take your Honours to that portion of the judgment in due course. I think there is no issue in relation to those areas in this appeal. Ironically, it is the only part of the Native Title Act which was applied by the Full Court in relation to our appeals.
Your Honours, the Territory applicants and their ancestors had always lived in this area. I will not take your Honours to it but again, in volume 7, the evidence is summarised at pages 1673 to 1681 in a report of Messrs Barber and Palmer, who are the relevant anthropologists. Again, I will not take your Honours to it, but the evidence was largely unchallenged. In Justice Lee’s judgment at 159 ALR 532 at about line 40, your Honours will see that his Honour stated:
The Territory made it clear at the outset of the hearing that it was not part of its case to say that the Miriuwung and Gajerrong people were not the “right people in an Aboriginal way” for the Territory area.
Perhaps I might say by way of explanation, we were separately joined in the proceedings because we put our case on a slightly different basis to the case put by the Western Australian applicants. We asserted specific connection with particular lands and to what is sometimes described as an “estate group model”. As your Honours will appreciate, Justice Lee made findings on a wider basis in relation to the undifferentiated group of the Miriuwung and Gajerrong people. Our interests under that finding extend, of course, across the border into Western Australia as they do, to some extent, under our own estate group model.
Your Honours, the questions relating to connection were not dealt with in detail by his Honour for the reasons I have noted. There was virtually no cross-examination of our applicants or of the anthropologists in relation to the continuation of traditional law and custom or their connection with the particular area nor was there any significant challenge in relation to the genealogies which determined that our people were the correct people.
May I then turn to the second matter which concerns the identification of the Acts which were said to establish varying levels of extinguishment. In volume 8 of the book of materials, behind the bundle of maps which is in the middle, one goes, firstly, to page 1952 at which one will find the first of the pastoral leases.
Your Honours, may I, with an apology, take this opportunity to hand up a revised chronology. The dates which were contained on the chronology provided to the Court were the dates of commencement of the grant in a number of cases, not the date of the grant. It matters not for our purposes, but for accuracy of background may we provide that revision.
McHUGH J: So the earlier document is superseded, is it?
MR BASTEN: The earlier document is superseded, your Honour. I think the dates are accurately contained in the Northern Territory’s chronology, which has one or two additional dates, and that document identifies and gives references, to which I am taking your Honours very briefly, to the specific pastoral leases. PL 1603 is at page 1952, and then, as your Honours go through, 1958 – there is Pastoral Lease 1097. I will not take your Honours to the details of these.
At 1964, the first of the PL 119 series; there is a second one at 1968, and a third one which I might stop at briefly at page 1972. This is Pastoral Lease No 552, and your Honours will see that in the middle of the first page, perhaps at line 37, it is said to commence for a period of 50 years from 1 July 1958. That would take it to 30 June 2008. That was a lease granted under the Crown Lands Ordinance of 1931. That lease was replaced but not extended by PL 809, which appears at page 1976, which commenced from 1 July 1978 and was for exactly 30 years – in other words, expiring on the same date as the previous lease. It was granted, in effect, following self-government under the Territory legislation. It did not extend the period of the pastoral lease.
Then at page 1980, your Honours will see there are notations which relate to the surrender of parts of that lease for the purposes, as we will later see, of the national park. The first of the relevant items is the fourth in the middle of the page, called “Part Surrender” on the right, dated 3 September 1979. The last item of 9 March 1987 is, interestingly, a lawful surrender, which is at the remainder of the lease.
GAUDRON J: The remainder of the land in the lease.
MR BASTEN: I am so sorry, the remainder of the land that became the subject of Keep River National Park; it is not the remainder of the Newry lease. Your Honours will see in relation to the first surrender that it was registered on 3 September 1979. At pages 1981 to 1982, there is a special purposes lease granted in respect of that same area, which became known as Portion 1801, which is dated 6 June 1980. If your Honours go to page 1983, you will see that the Portion 1801 is, in effect, the western side of the park.
I should have asked your Honours to keep the map from page 1635. It probably does not matter, but I will return to it. The area includes what one can see is an escarpment on the western side above the word “Nyawamnyawam”, which is one of the estate groups. It includes the Police Hole area, as it now is, and may I just note that it includes – and I will tell your Honours the reason for the significance of this in a moment, I wish to use it as an example – a site, which is No 24, towards the left-hand side of the map, which is known as Kurrandalm. There is near to Kurrandalm a women’s site. And I will come back, if I may, to the significance of that.
For present purposes, may I simply note that there was a period of some nine months between the surrender of this area from the pastoral lease to the grant of the special purposes lease, and the special purposes lease, if one looks at the top of 1982, which is the second page of the lease, is subject to two covenants which are significant for present purposes. The second covenant – I am so sorry, it is one covenant, that the lessee will use the land only for the purposes for which it is leased, viz:
for purpose of carrying out the functions of the Conservation Commission of the Northern Territory in accordance with the Conservation Commission Act and the Territory Parks and Wildlife Conservation Act.
There is later a declaration of that portion as part of the national park, the first part. That appears at page 1985. Again, without going to perhaps the detail of all of this material for the moment, may I move straight on to page 1987 where there is a Crown Lease Perpetual, No 581, which was granted in relation to Portion 3121 which, as your Honours will see two pages on at 1989, is the eastern part of the national park. Again, of relevance for present purposes, the provisions in the second part of page 1987, particularly provision 3 at about line 33:
The purpose of the lease (“the lease purpose”) is for the purpose of carrying out the functions of the Conservation Commission –
and so on, the same terminology.
Now, your Honours, each of those documents constitutes in sum the material giving rise to a level of extinguishment in the present case. Before, however, I turn to how the Full Court dealt with these matters, may I take your Honours to the Native Title Act which we say governs the correct approach to ascertaining the answers to the questions posed in terms of extinguishment.
GLEESON CJ: Mr Basten, the question was asked yesterday as to the relevant form of this legislation for our purposes. I have a reprint of the Act as at 27 July 1988. Is that a useful form?
MR BASTEN: Yes, it is the form, your Honour. I am so sorry, it is the relevant form.
GLEESON CJ: Thank you. May I ask you this, section 23G, for example, refers to what it calls:
Confirmation of partial extinguishment of native title by –
certain things.
MR BASTEN: Yes.
GLEESON CJ: There are repeated references to partial extinguishment in the provisions dealing with past and future acts. Is it part of your submission that partial extinguishment is not possible?
MR BASTEN: No, your Honour. We deal with the concept of partial extinguishment more fully in our submissions in matter P67 and the way we put it is set out at paragraphs 4.9 through to 4.17. I do not need to take your Honours to it. I am going to deal with 23G in a little more detail, but may I just note, as your Honour will have already observed, that in relation to non-exclusive possession acts – I am sorry, Division 2B, in effect, deals with two categories of past activities. I do not wish to use the term “past acts” because that is a defined term, but things that have happened before and previous exclusive possession acts are, in effect, those which totally extinguish native title in a particular area. That follows from 23C. Section 23G is therefore posited on the basis that if it gives rise to a level of extinguishment, it can only be what in, I think, the colloquial sense, has been called partial extinguishment, and whatever that terms may mean and it may have a number of meanings, that appears to be the meaning of it in the heading to which your Honour drew attention.
GUMMOW J: When did 23G come into operation?
MR BASTEN: The principal commencement date of the Commonwealth Act was 30 September 1998. It required for its relevant operation in the Territory complementary legislation in the Territory, which is provided for in relation to Acts attributable to the Territory in section 23I. Might I note for completeness that, although the early pastoral leases to which I took your Honours were granted at a time when the Territory was part of the Commonwealth, those grants are also Acts attributable to the Territory by virtue of the operation of section 23JA.
GLEESON CJ: The Act itself indicates what it means by partial extinguishment, does it not? It uses an expression that we have seen used in many of the judgments, that is, to the extent to which something is inconsistent with native title rights and interests, the native title rights and interests are extinguished.
MR BASTEN: Yes. At the risk of substituting one label with another, we would understand that the test of extinguishment which is accepted by this Act is what is sometimes called the inconsistency of incidence test and that, to the extent that what your Honour puts to me may result in partial extinguishment, then of course the Act incorporates that aspect of the test. The Act also incorporates the concept of exclusive possession in section 23B and I would wish to say something about that. Neither of those two terms which become of critical consequence since the enactment of these provisions is defined. There is therefore obviously still a sense in which it is necessary to look at the underlying common law principles in order to see what the Parliament meant when it adopted this terminology in this legislation.
GUMMOW J: The primary judge delivered his judgment in November 1998 and he had reserved in April, by the look of it, and this legislation then appeared in the interval.
MR BASTEN: It did appear in the interval, your Honour.
GUMMOW J: The theory is that it applied to pending proceedings, is it?
MR BASTEN: That is the theory, your Honour, yes, that it applied to proceedings which were not then the subject of a determination which had been made. I think we deal in our submissions, your Honour, to the extent that they are relevant, with the transitional provisions and I think we do so in the Territory appeal. We note at page 9 the applicable legislation and legal principles. I am sorry, I am not sure whether we deal expressly with it. I thought we did, but we certainly include in the bundle of materials the transitional provisions which have direct relevance. I think the short answer is, your Honour, that there is no broad transitional provision which ‑ ‑ ‑
GUMMOW J: I could not find one.
MR BASTEN: No, but there are indications of when it will and will not apply. Can I come back to that, your Honour?
GUMMOW J: Yes, it seems to be ‑ ‑ ‑
MR BASTEN: It is obviously a matter of consequence.
GUMMOW J: Yes, that is right.
MR BASTEN: Our position is that it has application in relation to proceedings which had not reached a judgment by the date at which the Act came into force. There were submissions made to his Honour about what possible consequences might flow from the enactment.
GUMMOW J: Even if the amending Act was more than procedural and was substantive?
MR BASTEN: Yes, your Honour.
GUMMOW J: Even if it was substantive?
MR BASTEN: Yes, your Honour, because of the obvious intention of the Act as to how it is to apply. Division 2B to which we are drawing attention at the moment purports to be a statement of principles applicable to determining whether there has or has not been extinguishment. Sections 47A and 47B have the reverse effect. They state when things which might otherwise have resulted in extinguishment may be disregarded. Mr Meadows suggests to me that all the parties accepted the proposition that I am putting to your Honours in relation to how the Act applied but I can ‑ ‑ ‑
GLEESON CJ: Justice Lee deals with this matter at pages 505 and 506 of 159 ALR and he refers to the transitional provisions on the top of page 506.
MR BASTEN: Yes.
GLEESON CJ: I do not want to reveal myself as being unduly literal minded but how does it come about that legislation which was enacted on 30 September 1998 is picked up in a reprint as at 27 July 1998?
MR BASTEN: That was when it was passed by the Parliament, your Honour. It is not right to say it was enacted on 30 September. It commenced, principally, on 30 September.
GLEESON CJ: So, when Justice Lee refers to 30 September he is not referring to what happened in Parliament, he is referring to the effect of the legislation.
MR BASTEN: He is, your Honour.
GLEESON CJ: He should have said, “With effect from 30 September 1998”.
MR BASTEN: Yes, your Honour.
GUMMOW J: No one quarrels with what Justice Lee was saying.
MR BASTEN: Not as far as I understand, your Honour.
GLEESON CJ: He does express himself slightly tentatively at line 9 on page 506, but is everyone proceeding on the basis that what he says it suggests is in fact occurs?
MR BASTEN: I am not quite sure that I understand the point that his Honour is making there. It might be clearer to me if I read the whole passage. Section 61 is the provision which provides for applications to be made for a determination of native title. Now, there are specific transitional provisions in relation to applications which had been made prior to the date of the Act and how they are to be treated. I do not immediately understand the relevance of that to section 225. Section 225 is the determination provision, of course, which was what his Honour was concerned about, primarily.
What Mr Barker said yesterday, of course, in relation to Western Australia was correct. There was at the date of his Honour’s judgment no complementary legislation in operation in Western Australia which would have picked up and applied sections 23G and 23I – I am so sorry, 23G, at any rate, to the Western Australian interests.
GUMMOW J: Anyhow, the assumption, not fully expressed by Justice Lee, I think, is that this is a purely procedural Act, and I doubt that at the moment, but, anyhow.
MR BASTEN: We would say that it establishes certain tests which are substantive. Whether they change the common law or not is a separate ‑ ‑ ‑
GUMMOW J: It is a statutory right to determination of native title.
MR BASTEN: Yes, and that is ‑ ‑ ‑
GUMMOW J: They are not adjudicating the common law in some common law court.
MR BASTEN: No. I suppose that all I meant ‑ ‑ ‑
GUMMOW J: That is a point we had to look at in Fejo, you will remember.
MR BASTEN: All I meant, your Honour, was that prior to the insertion of Division 2B there was a very limited dealing with questions of extinguishment and the Act and, accordingly, common law principles were formulated and applied. That was all I intended to indicate. Might I just go back away from the Act for a moment in order to indicate what we apprehend to be its coverage. There are, arguably, five categories of extinguishment, or five ways in which extinguishment might occur. The first which was that rejected in Mabo and the Native Title Act Case was extinguishment as a result of the acquisition of sovereignty by the British Crown. We can put that to one side.
The second was extinguishment by the grant of a title to third parties established by Mabo, discussed in Fejo and applied. The test of that we would have thought was, and remains, the inconsistency of the incidents, and I will come back to that. The third way, according to the judgments of Justice Brennan in Mabo and of his Honour in Wik were constituted by the setting aside of Crown land for and use for a purpose which was inconsistent, wholly inconsistent, with native title rights and interests, and in a sense, that may be described as a head of operational inconsistency.
Fourthly, there is the possibility of extinguishment resulting from operational inconsistency where the acts or activities are those of third party grantees of interests; the fifth way is no doubt a statutory declaration of extinguishment by perhaps a level of prohibition of an activity which is the exercise of a native title right. The fifth possibility is not dealt with in this Act no doubt because it is ultimately unlikely that it will arise, for reasons to which I will come, but it would, in any event, require the answer to a question of the construction of the particular statute, which had that effect in the light of particular native title rights and interests.
What we say, however, is that the second, third and fourth of those categories are all dealt with by this Act. Section 23B deals with extinguishment by grants to third parties and, in substance, adopts a test of exclusive possession. I say that because, at the end of the day - and I can take your Honours obviously through this in more detail if necessary - section 23B(2)(c)(viii) includes in the definition of “previous exclusive possession act”:
any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
And that to an extent appears to be a catch-all, which would deal with matters which had not been dealt with either by the schedule or the other paragraphs.
GLEESON CJ: Now is that qualified by any requirement relating to the length of the term of the lease?
MR BASTEN: No, your Honour, no it is not. There are qualifications, but not in terms of the length of the lease. Before I go to that, might I just indicate that there is a distinction drawn between grants and vesting and subsection (3) expressly deals with circumstances where there is a vesting for the purposes referred to in paragraph (2)(c). I will come back to that to the extent necessary. Subsection (7) - the numbers are not directly chronological - deals with a:
a previous exclusive possession act –
which –
consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.
Which of course was the date of the decision in Wik. Now I will elaborate on this point if I may in a moment, but simply to get the structure of it, “public work” is a defined term - if Your Honours are using the green book to which your Honour the Chief Justice referred, it is at page 322 in section 253 – and it means:
(a) any of the following –
and then there are categories of work –
that is constructed or established by or on behalf of the Crown –
and so on.
Now, we deal with this concept in more detail in our written submissions, but the proposition that I want to put at this stage is that that was a statutory attempt to deal with that which Justice Brennan described as setting aside and use of land for public purposes by the Crown. There is then the question about whether the Act deals specifically with operational inconsistency by third party grantees? We say it does. May I go back, however, to section 23B and 23B. What the provisions provide in relation to pastoral leases appears to be an exclusive set of categories. If a pastoral lease is properly described as an exclusive pastoral lease, it is a previous exclusion possession act by virtue of paragraph (iv) in 23B(2)(c) and that is a term which is defined in section 248A and your Honours will see that it is at page 313 of the reprint:
An exclusive pastoral lease is a pastoral lease that:
(a) confers a right of exclusive possession over the land or waters covered by the lease; or
(b) is a Scheduled interest.
I think there are probably not any which are scheduled interest, but they are otherwise dealt with in 23B(2)(c) as a first category.
GLEESON CJ: Mr Basten, what is the scheme of this Division 2B in distinguishing between acts attributable to the Commonwealth and other acts?
MR BASTEN: There are two parts perhaps to my answer to that, your Honour. In each case in which provision is made for an act attributable to the Commonwealth, provision is also made for complementary legislation to be passed by the State or Territory to deal with acts attributable to it. I mentioned, in relation to 23G, I think, 23I, and there is a similar provision in relation to the previous exclusive possession acts, namely, 23E.
GLEESON CJ: Now, in the present case we are not concerned with acts attributable to the Commonwealth.
MR BASTEN: We are not.
GLEESON CJ: We are concerned with acts attributable, relevantly, to the Northern Territory.
MR BASTEN: That is so. In part, because of the fact that 23JA expressly provides that acts undertaken by the Commonwealth prior to the establishment of the separate body politic are to be treated as acts attributable to the Territory. Your Honour’s question though, may have included the possibility that there were acts which were attributable to neither government entity and that was, in a sense, the point I was coming to.
Just before coming to that, may I note the second limb of the dealing with pastoral leases, namely, non-exclusive pastoral leases, which are the principal category perhaps, other than non-exclusive agricultural leases, the sole category of previous non-exclusive possession acts as identified in section 23(2)(c). That, again, as the section notes, is a defined term by reason of section 248B and why I have said that these categories are intended to be exclusive of all pastoral leases is clear from the definition of the non‑exclusive pastoral lease. Your Honours will see, for completeness, at section 248 there is a definition of a pastoral lease.
GLEESON CJ: Well, one of the purposes of attributing an act to the Commonwealth or to the Territory is to work out who pays compensation.
MR BASTEN: That is so. That is one of the purposes. The other is to provide a coherent scheme for the operation of these provisions in relation to extinguishment as well, but your Honour is correct and there is a consequence that follows as a result. That follows from section 23J. Your Honour has probably read that.
Now, those provisions deal with the consequences of acts of the Crown, if I may use that term, in a generic sense. If one turns to section 44H at page 129 of the reprint, this is a provision which we apprehend, and I think the Commonwealth agrees, is intended to deal with the case of operational inconsistency which might arise from the activities of, say, a pastoralist in erecting an improvement somewhere on a pastoral lease.
It was a matter which was dealt with in Wik by your Honour Justice Gaudron at 187 CLR 166 and by your Honour Justice Gummow at page 203. The effect of the provision though is to resolve a question which was not resolved in Wik. What 44H provides, in substance, is that where “the grant . . . a lease, licence, permit or authority” permits the doing of any activity, the activity is done in accordance with it, then (c):
the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and
(d) the existence and exercise of the native title rights -
pari passu -
do not prevent the doing of the activity; and
(e) native title holders are not entitled to compensation under this Act for the doing of the activity.
Now, that provision, as we would understand it, is applicable in relation to these leases by way of explanation of the effect both of the grant and of possible acts done on the leases. The point is of limited direct relevance because in a passage to which we refer in the written submissions, the trial judge made no finding in relation to any activity on any of the pastoral leases of the kind which might be described as giving rise to operational inconsistency. Could I refer your Honours to the transitional provisions for this purpose? Item 17(2), which is at page 435 of the print that I have, deals with the operation of section 44H and provides that it:
applies to any grant, issue or creation of a lease, licence, permit or authority at any time, whether before or after the commencement of that section.
For completeness, might I also note a section to which I think your Honours’ attention was directed on a month ago, namely, section 250 of the Act, which provides that:
the use of the present tense in any provision of this Act does not imply that the provision does not apply to things happening before the commencement of the provision.
That obviously has, perhaps, significance in relation to Division 2B, which is entirely dealing with matters which occurred prior to the commencement of the provisions.
HAYNE J: Why is that transitional provision in item 17(2) directed only to the question of date of grant rather than date of act, because 44H is engaged by accumulation of three things, the last of which is the doing of an act. What do you say the effect of it then is?
MR BASTEN: I cannot give your Honour a categorical answer, but I would have thought the drafter considered that if it would be sufficient to state that in relation to the grant because the activity must be subsequent to the grant. So as long as it was clear that it applied to prior grants, it must apply to prior activities. I can give your Honour no better answer, but it seems to be consistent with the purpose.
Now, your Honours, we say in the submissions, and I think it is probably uncontroversial, that the findings of the trial judge and of the Federal Court were consistent only with these pastoral leases being non‑exclusive pastoral leases. I will take your Honours to the discussion in the Full Court judgment immediately. I merely state that because I want to concentrate on section 23G, which is the one which provides for the effect of a non-exclusive possession act. It has, in effect, three parts. Paragraph (1)(a) provides:
to the extent that the act involves the grant of rights and interests that are not inconsistent with native title . . . the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them;
Now, may I just interpose, bearing in mind that we are not dealing with any question of exclusive possession, it says something about the concept of inconsistency that this provision needs to provide the possibility of prevailing over, even in the case of non-inconsistent rights.
The second category is divided. Where the Act involves the grant of rights that are inconsistent with native title rights, then one of two possibilities applies:
(i) if, apart from this Act, the act extinguishes the native title rights and interests – the native title rights and interests are extinguished; and
(ii) in any other case – the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re‑made, re-granted or extended, is in force; and
(c) any extinguishment under this subsection is taken to have happened when the act was done.
In each paragraph of this provision, we would assume that the definition of extinguishment, that is, permanent extinguishment, which is now provided for in section 237A, must have application, so that the question of whether, apart from this Act, a grant extinguishes native title must be a question of whether it permanently extinguishes.
GUMMOW J: Now, is there any transitional section for 23G, as there is for ‑ ‑ ‑
MR BASTEN: Yes, I think the answer to that is no, your Honour.
GUMMOW J: I thought not. What do we do about that? What do we do about that, apart from being perplexed? The Parliament debated these things endlessly. You would have thought they would have directed their mind on that question.
MR BASTEN: Your Honour, we say that it is clear from the structure of Division 2B, and perhaps made express in the overview, that this is intended to be, to the extent that it is a code, a code with respect to grants, and in relation to pastoral leases, subject to the tests which it itself applies, it is a code. So that it applies to any pastoral lease which qualifies as having been “done on or before 23 December 1996”.
GUMMOW J: Section 23A(1) perhaps suggests that.
MR BASTEN: I am sorry, that was what I was reading from, yes.
GUMMOW J: Yes.
MR BASTEN: Yes. That merely reflects the operative provision in 23B(2)(b).
GUMMOW J: Then why does one need Item 17?
MR BASTEN: In relation to section 44H?
GUMMOW J: Yes.
MR BASTEN: I am not sure whether one does, strictly, your Honour. We would have thought that the conclusion would have followed without that because there is a coherence or consistency between 23G and 44H. They appear to have a constant pattern.
HAYNE J: Though 44H does not have the benefit of the overview of 23A, does it?
MR BASTEN: It does not come in that Part at all and it is not restricted to things which happened prior to 23 December 1996. It comes after Part 2 Division 3 which is dealing future acts, ie, acts which took place after the commencement of the Native Title Act, although it is not contained within it. The other point, I suppose, is that 44H was seen by the drafter to be a provision which did no more than avoid doubt, so that ‑ ‑ ‑
GUMMOW J: It is 24GC, which is in 17, is within Division 2B.
MR BASTEN: Section 24?
GUMMOW J: Section 24GC.
MR BASTEN: No, 24 is within Division 3, your Honour.
GUMMOW J: Is it?
MR BASTEN: All of section 24, which is lengthy, is within Division 3 which commences at page 28.
McHUGH J: Now, is it clear that all the acts that we are dealing with for the purposes of your case are Commonwealth acts, as opposed to Northern Territory acts?
MR BASTEN: No, no, I am sorry. It is clear that none of them are.
McHUGH J: None are?
MR BASTEN: No, because of 23JA. Section 23JA provides that any:
previous exclusive possession act or a previous non-exclusive possession act took place before the establishment of . . . the Northern Territory –
is –
for the purposes of this Division taken to be attributable to –
relevantly –
that Territory.
Which is why it was only because of the complementary Territory legislation coming into force before the date of judgment that this material had application in relation to areas within the Territory.
McHUGH J: I am just not clear yet what use you seek to make of this in the context of this present case.
MR BASTEN: No, I am sorry, I need to come to that, obviously. What we say at the end of the day is that the questions of extinguishment are to be determined by application of these principles. Now, it may be that in relation to the pastoral leases, 23G takes one back to the common law. That is a question which needs to be asked, though, before it can be answered. In relation to the other leases, I just need to take your Honours back in a moment, if I may, to the vesting provisions and previous exclusive possession acts.
Perhaps I should say this, by way of further answer to your Honour Justice McHugh: it was common ground between the trial judge and all members of the Full Court that neither of the leases under the Special Purposes Leases Act or the Crown Lands Act were exclusive possession acts, because each of them was subject to a purposes being for the creation of a national park, and, apart from that, not really conveying a right of exclusive possession in any event. There were, in the Territory Parks and Wildlife Conservation Act, express provisions protecting Aboriginal traditional activities. I will come ‑ ‑ ‑
McHUGH J: I cannot recollect any discussion of these provisions in the Full Court, or I have just forgot.
MR BASTEN: Justice Kirby said yesterday no one wants to talk about this. We both wrote about it and talked about it and your Honour is correct. We can really say no more about it. The only part – and I think I said this to Justice Callinan before – which the court picked up was the operation of section 47A, which is part of the new 1998 amendment provisions, in relation to the community living areas, in order to accept that there had been no extinguishment of native title there. There were two new provisions which were, as it were, a counterweight to the extinguishing provisions: 47A applied to freehold estates and other interests granted to Aboriginal, or for the benefit of, Aboriginal people; 47B dealt with vacant Crown land. In each case, they are subject to a qualification in relation to occupation, but of course in relation to community living areas, that hardly arose.
GLEESON CJ: But it is 23I, is it not, that relates 23G to an Act of the Territory?
MR BASTEN: Yes. Section 23I permits the Territory to make a law to similar effect, to the same effect, and to make provision to the same effect as 23G, yes.
GLEESON CJ: Has the Territory done that?
MR BASTEN: Yes.
GAUDRON J: But not Western Australia.
MR BASTEN: Not Western Australia as at the date of judgment; it since has.
GAUDRON J: So none of these arguments are relevant to the land in Western Australia?
MR BASTEN: The arguments based on Division 2B are not, your Honour.
HAYNE J: When did the WA Act come in? Before the Full Court decided? May it not raise a question ‑ ‑ ‑
MR BASTEN: Yes.
HAYNE J: ‑ ‑ ‑ of what the Full Court is doing ‑ ‑ ‑
MR BASTEN: Yes.
HAYNE J: ‑ ‑ ‑ and intervening changes in the law, and other such niceties.
MR BASTEN: Yes.
GUMMOW J: This is an Esber Case, in a way.
MR BASTEN: It may not be quite Esber, your Honour, it may be those Full Court decisions which deal with the nature of the appeal to the Full Court ‑ ‑ ‑
GUMMOW J: Yes.
MR BASTEN: ‑ ‑ ‑ which I was not going to address, but with which I have some difficulty. They say it is an appeal strictu sensu, but recent decisions suggest otherwise.
McHUGH J: It cannot be in the Federal Court ever regarded our decision in CDJ v VDJ.
MR BASTEN: Yes.
GLEESON CJ: Just to get the facts straight, as far as section 23I is concerned, the Northern Territory enacted legislation pursuant to section 23I ‑ ‑ ‑
MR BASTEN: Yes.
GLEESON CJ: ‑ ‑ ‑ before Justice Lee gave his decision. Western Australia enacted legislation pursuant to section 23I after Justice Lee gave his decision, but before the Full Court gave its decision.
MR BASTEN: Yes. The Solicitor for Western Australia tells me 5 May, 1999 was the date on which the relevant Western Australian legislation which picked up Division 2B commenced.
GLEESON CJ: All right. His judgment was given on 3 March 2000.
MR BASTEN: Yes. Your Honour Justice McHugh is no doubt right abut the nature of the appeal. I merely noted that because in one of these cases, and I now cannot remember which it was, Justice Beaumont said something to the contrary. It may have been before CDJ. I simply cannot ‑ ‑ ‑
GUMMOW J: Now, am I right in thinking that Western Australia’s came into it – their legislation came into it before the Full Court hearing?
MR BASTEN: Yes.
GUMMOW J: What are we talking about when we are talking about a determination under this Act of native title? It seems to me that is the root question here. Is it the determination of anterior rights? Anterior rights determined as at what date? This is not a common law action.
MR BASTEN: No.
GUMMOW J: It is some statutory creature.
MR BASTEN: Yes.
GUMMOW J: I do not want to detract you now. I know you have a number of things coming to you.
MR BASTEN: Yes, one of which, in relation to the Territory, at least, is not this point.
GUMMOW J: Yes.
MR BASTEN: Justice Drummond has referred to it as a judgment in rem which takes effect as at the date of determination and that may be correct in the sense that what one is looking at, in terms of 225, is whether native title exists. Perhaps 225 is one of those provisions to which 250 has no operation.
GUMMOW J: Activated the determination or at the date of the court disposing of an appeal and substituting another determination, or varying a determination.
MR BASTEN: Yes, indeed. I mean, I should say, your Honour, that we said ‑ ‑ ‑
GUMMOW J: It is on that footing that one gets into, in your case any way, these later changes.
MR BASTEN: Not in our case, only in the Western ‑ ‑ ‑
GLEESON CJ: No, in the case of Northern Territory you are in them because ‑ ‑ ‑
MR BASTEN: We are in anyway.
GLEESON CJ: ‑ ‑ ‑ Justice Lee gave his judgment after legislation pursuant to 23I.
MR BASTEN: Yes.
GUMMOW J: Yes, but that is why Justice Lee got into it, I am trying to say.
MR BASTEN: Yes. We are not concerned ‑ ‑ ‑
GUMMOW J: He was making a determination, was he not, at the date of his judgment?
MR BASTEN: Yes. I have forgotten whether he made it at the date of judgment or later, your Honour, but after the commencement of the Territory validation provisions.
GUMMOW J: Not the time of the application to him.
MR BASTEN: No. There is nothing in section 225 which would suggest that the date of application is relevant. The date of application is occasionally relevant. Sections 47A and 47B have effect in relation to a state of affairs as at the date of application but not the other provisions.
Your Honours, might I just go back - and again this may have no direct relevance to our case, but it has relevance to some of the arguments which have been put in relation to Western Australia - I think the Court should be at least made conscious of the fact that there are exclusions in section 23B from the definition of previous exclusive possession Acts, and they may or may not be relevant to our case. Subsection (9), consistently with 47A and 47B excludes grants which are for the benefit of Aboriginal people - I paraphrase. Section 23B(9A) says:
An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment -
Subsection (9B) has its own operation not relevant here. Subsection (9C) may be significant in terms to the vesting questions which were raised earlier today:
If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:
(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land -
If it does not, then it makes further provision for the possibility of extinguishment by use which appears to pick up the concepts which were discussed in Mabo and Wik by Chief Justice Brennan.
Your Honours, that then is the statutory background. I think that is all I need to say about that for present purposes. Might I, before going further, deal with a matter which ‑ ‑ ‑
GUMMOW J: Are you leaving the 1998 amendments?
MR BASTEN: I was, your Honour.
GUMMOW J: Did you say you had put in written submissions to the Full Court?
MR BASTEN: Yes.
GUMMOW J: Do you still have them?
MR BASTEN: They will be on the system, your Honour. We can make them available.
GUMMOW J: Yes, it might be useful.
MR BASTEN: Could we have overnight to do that?
GUMMOW J: Of course. It just might be useful to me, that is all.
GAUDRON J: Do I correctly understand the purport of your submissions to be that if the Full Court should have dealt with these issues, we should go on and deal with them rather than send them back to the Full Court to deal with them now?
MR BASTEN: Your Honours do not have the benefit of a reasoned judgment from the Full Court in relation to these issues, I appreciate.
GUMMOW J: That is why I am rather thunderstruck, to be perfectly frank.
HAYNE J: Issues which are fundamentally factually based.
MR BASTEN: Your Honour, I think ultimately we would say no about those matters which relate to our appeal. I will have to obviously justify that answer, but it is perhaps partly appropriate to note that in the back of our submissions – I jump ahead a little bit, but your Honour Justice Gummow asked what submissions we made to the Full Court. We took the view that the public works provisions of this Act applied in relation to any operational inconsistency which might have arisen on the national park. That was not the way in which the Territory had put its case below.
What we do in Appendix B to our Territory appeal submissions – and Appendix B starts at page 51 – is to provide part of our submissions to the Full Court which deal with the concept of public works. So perhaps that would at least satisfy your Honour that we made submissions, at least in part, on those grounds but I can get your Honour the rest of the ‑ ‑ ‑
GUMMOW J: I am not doubting what you say, I am just seeking some assistance from what you might have said; these sections are rather complex.
MR BASTEN: I hope that it is not inconsistent with what I have said so far, your Honour, but we will do that.
Your Honours, the other point that I will need to deal with is an abstract one, perhaps, of the questions raised both yesterday and today as to the nature of the native title rights and interests, which were found in this case and, as I apprehended, there were two elements to those questions: the first, perhaps in relation to your Honour Justice Hayne’s point about the flip from ownership by the land to ownership of the land, that we would understand to be a question which involves the translation of the content of the rights and interests defined under traditional law and custom into rights and interests of the kind which this statute permits enforcement of following a determination, and I will need to say something briefly about that. The second question is whether those rights and interests constitute proprietary interests and the potential consequences of such a classification.
McHUGH J: On that, I would be assisted if you would at some stage, either orally or in writing, address the issue as to if they are personal rights whether they qualify as property rights and in that respect you might look at cases like Hill v Tupper in 1863, The King v David Allen & Sons, Billposting [1916] 2 AC and what Lord Wilberforce said in Ainsworth’s Case [1965] AC about the nature of property.
MR BASTEN: Yes. Your Honour, we would do all that. Before lunch I cannot do it.
McHUGH J: No.
MR BASTEN: But might I do something else which is a partial answer? I apologise for providing more material but it only became available recently. May I provide to your Honours extracts from Kevin and Susan Gray’s Third Edition of Elements of Land Law. They have a new chapter in the book which deals with the concept of property and they deal with, I think, every one of those cases. They also deal, interestingly, with the judgments in the Full Court in this case, so it is quaintly up to date and relevant.
The passages to which I was going to take your Honours specifically are at pages 107 and following and perhaps in brief answer to your Honour Justice McHugh, as I have a moment, at page 108 under the figure they refer to:
The vice of circularity
One of the difficulties with this orthodox understanding of proprietary quality is that it is riddled with circularity.
They go on to describe Ainsworth in that passage and at the end of the passage on page 109 at the end of the paragraph:
The truth is that rights are not enforceable against third parties because they are ‘proprietary’ in character; they are ‘proprietary’ precisely because they are enforced. It is the ‘degree of protection afforded’ which makes it appropriate to describe particular rights as ‘property’. Proprietary character is not ‘the basis upon which that protection is given’, but is simply a term descriptive of the ‘effect of that protection.’
In the footnote at footnote 6 there is a reference to your Honour Justice Gummow’s judgment in Smith Kline. That might be better referred to in 22 FCR 73 at 121. The extract continues over from page 109 to 110 and ‑ ‑ ‑
GUMMOW J: I think that passage of Smith Kline & French was applied by Justice Dawson in Breen v Williams. I may be wrong about that.
MR BASTEN: Yes, that is referred to, your Honour, at footnote 7 on page ‑ ‑ ‑
McHUGH J: It is at page 90, a reference to it.
MR BASTEN: Yes, the footnotes go up to 20 and start again.
HAYNE J: Page 109, footnote 7.
MR BASTEN: Yes.
GLEESON CJ: Is that a convenient time, Mr Basten?
MR BASTEN: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.44 LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19 PM:
GLEESON CJ: Mr Basten, when you have finished your submissions we are going to interrupt the flow of proceedings briefly because we are curious to know what the parties said in the courts below and what they will say here about the application of Part 2 Division 2B of the Native Title Act and will be, at the conclusion of your submissions, asking the parties, but not the interveners except the Commonwealth and South Australia, to let us know where it was submitted to the Full Court of the Federal Court that the 1998 amendments to the Native Title Act, including Part 2 Division 2B, applied to the claimant’s applications and, if so, whether it was submitted by any party to the appeals to the Full Court of the Federal Court that the 1998 amendments did not apply. So we will hear from people very briefly about that so that they can satisfy our curiosity after you have finished your argument.
MR BASTEN: Your Honour, might I take that opportunity to complete the submission I was making in relation to that because I do not wish to have misled the Court as to what happened in the judgments. Your Honour noted a passage in which your Honour said there was some ambivalence in Justice Lee’s mind, perhaps, about one aspect of it. Might I take your Honours to 159 ALR 635 because that gives a greater indication of what was dealt with before his Honour? Towards line 35 there is a heading “Further effect of the Native Title Amendment Act”. His Honour noted that, “The parties were invited to make further submissions”. He then refers to Division 2B and at the bottom of that page notes a submission by the State in effect that the Ord Project was an “act attributable to the Commonwealth”.
He dismisses that at lines 25 to 30 on 636. His Honour then notes 47A and 47B at lines 30 through to 43. Then his Honour does make reference to the pastoral lease provisions in the Territory area and makes the express finding to which I referred earlier, namely that this was not an “exclusive pastoral lease” under 248A. Then he deals with the application of 47A in relation to the freehold community living areas. That goes through to about line 10 on page 637.
Then he comes back to questions posed by the State. I perhaps misled your Honour Justice Gummow in saying this was not anything to do with Esber because your Honours will see at line 43 on 637 Esber is expressly relied upon after a discussion of section 8 of the Commonwealth Acts Interpretation Act. None of that greatly affects my argument but I thought for completeness I should ‑ ‑ ‑
GLEESON CJ: What did the Full Court say about all that?
MR BASTEN: The Full Court dealt with it at paragraph [659] 170 ALR 319. In relation to a submission put by the Alligator appellants who sought to invoke the Titles Validation Amendment Act 1999 - that is at page 319 of the reported version, if your Honours are using that - the majority say in the third line that the Act came into effect on 12 May. We think that is a mistake. As I understand from the Solicitor for Western Australia, the relevant date is 5 May.
McHUGH J: The critical passage is at the bottom of the page.
GUMMOW J: Yes, that is wrong.
MR BASTEN: In relation to Duralla v Plant, yes. Well they say there that at first “the court must consider and apply the law as it stood at the date of the hearing”; I am not sure that anybody put that proposition to them and not at the date of hearing of the appeal and your Honours will note the reference to Petreski v Cargill and the other authorities. That I do not think was debated, but I was not there for the whole of the period, but, your Honours, I am not sure if it is reported, but Stirling Harbour Services v Bunbury Port Authority [2000] FCA 1381, was a Full Court decision following CDJ in which their Honours said, according to the note in the service, that strong doubts were cast upon the authority of Duralla v Plant. That must be an understatement, because, your Honours, in CDJ - perhaps not just Justice Gaudron, but the rest of your Honours expressly dealt with the Federal Court provisions as well as the Family Court provisions.
KIRBY J: Yes, but the holding would only apply to Family Court, though the words are the same.
MR BASTEN: That is so.
GUMMOW J: It is dealt with again in Allesch in this Court just a few months ago.
MR BASTEN: Yes.
KIRBY J: Again, the Family Court.
MR BASTEN: Yes.
GUMMOW J: But again, I think, with reference to the Federal Court as well.
MR BASTEN: Yes. Obviously it is not a determinative authority, but in CDJ 197 CLR 172 at paragraph 100, your Honours Justices McHugh, Gummow and Callinan said that the terms of the provision were not identical, but sufficiently similar for the ‑ ‑ ‑
GLEESON CJ: But the Full Court on 319, as I understand it, referred to the Western Australia legislation, which was pursuant to section 22(i) or within section 22(i) of the Native Title Act, as legislation relied upon in support of an additional submission to the effect that native title had been extinguished and they said, “because we have already held that native title was extinguished for other reasons, we do not have to address that submission.” In any event, they added this further rider about the nature of the appeal before them.
MR BASTEN: Yes.
MR BASTEN: Yes.
GLEESON CJ: So the reason they did not deal – it appears the reason they did not deal with Division 2B of Part 2 in the 1998 amendments was that they were only relied upon in support of a further argument for extinguishment, and they did not need to get to that argument.
MR BASTEN: That is our understanding. The matter was dealt with, and, as far as I am aware, it has not been subsequently raised by way of appeal or a notice of contention.
GLEESON CJ: We will see what the other parties say anyway, when we take the course that I foreshadowed.
MR BASTEN: But the other parties may know better than I whether that is ‑ ‑ ‑
GAUDRON J: But your grounds of appeal raise ‑ ‑ ‑
MR BASTEN: Undoubtedly ‑ ‑ ‑
GAUDRON J: ‑ ‑ ‑ raise the question.
MR BASTEN: Yes, and it is in relation to the Territory. That is so.
GAUDRON J: You certainly raised it below.
MR BASTEN: Yes.
GUMMOW J: And it was not dealt with.
MR BASTEN: Not in terms, no. Sorry, just for completeness – there was, as your Honours may have gathered, a further hearing before the Full Federal Court in relation to the nature of the proposed determination, and the second set of reasons for judgment appear at page 794 in volume 4 of the joint appeal books. At page 793, the third applicants - which, I think, were the Cheinmora applicants - at paragraph 9 are said to have sought to invoke 44H, but their Honours basically said that this was not a time for substantive argument, and that was a substantive issue. The issues were limited to the form of the determination, which was to reflect the judgment already given. I think those are the passages to which I sought to direct the Court. Your Honours, may I then, if it is convenient, just ‑ ‑ ‑
GLEESON CJ: This is not something that has simply been overlooked in the courts below. Whether or not they came to the right conclusion about it is a different matter.
MR BASTEN: That is so, yes. Your Honours, I was just going to make one or two further comments in relation to the extract I gave your Honours from Gray and Gray. Firstly, at page 107, where the authors have a discussion of the definition of “proprietary quality”, at footnote 17 there is reference to Wily v St George Partnership Banking Ltd (1999) 161 ALR 1; (1998) 84 FCR 423. I think it is the same passage which was expressly relied upon by your Honour Justice Gummow in Yanner, at paragraph [86].
In that case Justice Sackville in his judgment refers to an article of his in (1978) 2 UNSWLJ, entitled “Property Rights and Social Security”, and the relevant pages are at 246 to 252.
Now, the passage I was seeking to come to at the break was that which is at the end of 109 to 110 where they say:
To be sure, transmissibility is often an important incident of proprietary entitlement, but it is far from being an indispensable or invariable index of proprietary character. Indeed, it was a stubborn adherence to the view that ‘property . . . generally implies . . . the right to alienate’ which, for two centuries, prevented recognition of the proprietary nature of traditional or native land rights in many parts of the common law world.
That is expressly a reference to Milirrpum and to Mabo. At the bottom of that page, 110 to 111, there is a three-fold analysis of property undertaken and it is said at the top of 111 that:
The idea of ‘property’ in land oscillates between the behavioural, the conceptual and the obligational between competing models of property as a fact, property as a right and property as a responsibility.
In a passage which ultimately ends with the conclusion that many commentators are returning to the concept of property as responsibility, at least in part, that is at page 118, their Honours are really noting an aspect of property which is entirely consistent with our clients’ view of their relationship with the land. It would be an irony if the common law returned to that view of property, at least in part, as a result of modern developments. But the passage upon which we seek to rely is at 111, in the middle of the page, in the middle of a paragraph under the heading:
(1) Property as socially constituted fact:
The sentence begins:
Being heavily preoccupied with what happens on the ground, the crude empiricism of this outlook leaves the recognition of property to rest upon ‘essentially intuitive perceptions of the degree to which a claimant successfully asserts de facto possessory control over land’.
Your Honours, that comes back to something that I said before in relation to the translation of the native title content identified under traditional law and custom into questions of control over access to land, control over the use of the resources of the land, and that is how we would put the matter. The final point I wanted to make was that in a passage at the top of page 112 they note the link between property notions and:
international and constitutional law concepts of sovereignty.
That echoes a passage in Justice Brennan in Mabo at pages 40 to 41 where his Honour quoted:
the International Court of Justice in its Advisory Opinion on Western Sahara –
and also extracts a passage from your Honour Justice McHugh in Yanner v Eaton. Those are the passages we sought to refer to there. We will give further consideration as to whether we need to put that in some form of more coherent note for your Honour Justice McHugh, as your Honour asked.
What we would say at the end of the day is that the factual findings as to connection which were made in this case which mirror those which were made in Milirrpum which were discussed by Justice Brennan in Meneling Station would not appropriately be described as personal in the words that your Honour used to me this morning and that is because third parties can be excluded from use of the land.
May I then return, if that is convenient, to the Native Title Act. This may be an element of pedantry, but I wanted to make clear one other matter concerning the operation of section 23G and the pastoral leases in the present case. Your Honours will see that 23G(2) provides that:
If the act is the grant of a pastoral lease to which paragraph 15(1)(a) applies, this section does not apply to the act.
Now, section 15(1) deals with past acts and provides that certain pastoral leases will constitute category A past acts which will extinguish native title.
The reason I need to deal with this is that, as the Court said in the Native Title Act case, the chief, if not the only reason why there might be invalidity of grants prior to the Native Title Act was the effect of the Racial Discrimination Act.
We have a pastoral lease 809, which is one of those I took your Honours to this morning, in volume 8 of the bundle at page 1976 which was granted on 21 March 1979, namely, after the commencement of the Racial Discrimination Act. That pastoral lease has not been suggested as a basis of extinguishment, and that, as we would understand it, for two reasons. Firstly, we would say that it is not a past act at all because it had no effect on native title. That is because it was a replacement for an earlier pastoral lease and it did not extend the term of the lease by a day nor did it in substance vary the conditions.
The reason for coming to that conclusion is that in order to determine whether an act is a past act, one needs to go to section 227 of the Native Title Act, which provides that:
An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
Section 228(2)(b) identifies a past act as one which:
apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist.
However, when one turns to category A past acts in 229, and this is always on the assumption that this particular lease was a past act at all, your Honours will see that 229(3)(c) requires that:
the grant was made before 1 January 1994 and the lease was in force on 1 January 1994;
This pastoral lease, in relation to this land, was no longer in force, having been surrendered for the purpose of the national park. Accordingly, it is not a category A past act. It is not a category B past act because of the similar requirement of being extant on 1 January 1994 by virtue of section 230(c)(i). Category C past acts are mining leases, therefore, it is a category D past act and, if it be relevant, no extinguishment follows because the non-extinguishment principle applies by virtue of section 15.
Now, I suppose I undertake that exercise partly to avoid a red herring but also to indicate the nature of the exercise which is required even in relation to pastoral leases for the complete operation of the provisions to be understood. Your Honours, having done that, might I then turn to the judgment of the Full Court to indicate how this matter was dealt with by their Honours. Their Honours, in 170 ALR 230 commenced the discussion of pastoral leases at paragraphs [282] through to [292]. I do not intend to take your Honours through that because it was a matter which was agitated yesterday.
In relation to the Northern Territory, however, their Honours deal expressly with the pastoral leases in question at paragraphs [332] and following. At [332] their Honours go directly to “The reservations in favour of Aboriginal people” as having been expressed in terms more widely than those in the State legislation, to which reference had been made, and they say:
In the result, although we conclude that pastoral leases granted in respect of the Territory portion of the determination area have also brought about partial extinguishment by abrogating native title rights to exclusively possess, occupy, use and enjoy the land, we consider that there has not been total extinguishment in respect of any area.
Now, your Honours, at the top of page 244 the lease reservation in its original form is set out and your Honours will see that it gives:
full and free right of ingress, egress and regress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made –
Subject to some variations in the terminology which appear at paragraph [336] at the bottom of the page, that is the reservation in relation to the Northern Territory pastoral leases, and their Honours say, at about line 25 on that page, the reservation and the lease terms are not materially different from the reservations stipulated in the earlier leases. Their Honours then consider the rights of a subsisting native title identified by the trial judge at paragraph [338] and his Honour’s holding is set out there as:
plainly indicated that the Crown, in granting the pastoral leases, had no intention to extinguish native title –
At [339] their Honours adopt the reasoning in relation to the State and say “we agree” about total extinguishment and that:
the reservations express a clear intention that those native title rights described in the reservations are held back from the grant, and remain Aboriginal rights for the enjoyment of Aboriginal people.
They reject a proposition that there was an intention to “substitute statutory rights”. At [340] their Honours express this conclusion:
As with the reservations in favour of Aboriginal people in the State, we consider that the express reservations in the Territory on the one hand demonstrate clearly and plainly that the pastoral leases, notwithstanding the use of traditional common law language and concepts indicative of the grant of . . . exclusive possession, did not extinguish all native title by granting pastoral lessees possession that was exclusive of the interests of Aboriginal people. However, on the other hand, they operate to define the scope of the Aboriginal rights which were preserved. In so far as the terms of the reservations did not include Aboriginal rights –
and their Honours do not identify any –
those rights were susceptible to extinguishment, and were extinguished to the extent of inconsistency with rights granted under the pastoral lease.
If one stopped there, one might well think that once the pastoral lease went, there would be no issue in terms of extinguishment perhaps unless another pastoral lease were granted, because the kind of inconsistency their Honours appear to have in mind is specifically related to the pastoral purposes. However, at the bottom of the page their Honours go on – and I need to take your Honours to [343]:
The grant of coexisting rights to be present on the land, however, had the inevitable effect that native title which hitherto consisted of exclusive rights to possess . . . ceased to be exclusive, and the native title right to make decisions about the land was abrogated –
presumably not the statutory term but meaning extinguished –
to the extent that such a right conflicted with the right of the pastoral lessee to make decisions about the use of the land fore pastoral purposes –
and again, one might think that once the pastoral lessee has gone, there might be no continuing conflict. Their Honours go over the page, in a passage which may or may not qualify the judgment so far, to say that:
The rights reserved to Aboriginal people were confined to rights of access for a specified purpose.
Again, the purpose is not identified but, with respect, we would have thought that the terminology of the reservation was wide enough and intended to be wide enough to incorporate all those traditional activities which Aboriginal people were understood to carry out upon land.
Your Honours, if one takes the example I gave on the map at 1635 before lunch of the women’s site, what we would understand the situation to be during the currency of the pastoral lease would be that the pastoralist could, in order to muster cattle, send his male stockman to an area which was at or near the site and the native title holders would have no right to tell those people to go away because they were male. However, once the pastoralist had gone, there would be no limitation, one would think, on the right of the Aboriginal people to enforce their interests in relation to the preservation of a particular site on the land.
GLEESON CJ: What if what the pastoralist wanted to do was not send male stockmen onto the area but was to sink a well?
MR BASTEN: Yes. Your Honour, we would submit that that act, at a particular place, if not inconsistent with the reservation, would be something that he could do and which the native title holders could not prevent.
GLEESON CJ: And what effect would doing that, sinking a well in the middle of the women’s site, have on the native title rights and interests?
MR BASTEN: We would say it would have no extinguishing effect, although it would obviously impair their rights, and it would impair their access to an area for water or whatever else they used that area for. The concept though that somebody other than the government could extinguish native title is, in our submission, inconsistent with the way in which that aspect of the law has developed and section 44H, in our submission, clearly reflects that understanding of the law.
The Parliament has spoken as to what the effect is. That is the law as it presently stands and that law must be applied in construing the consequences of your Honour’s example whenever it occurred, just as we must now go back, following Mabo, to apply the principles of the common law, if they be relevant, to activities which occurred in the past, so section 44H is, as it were, a statement of the relevant principles, whether consistent with the common law or not probably does not matter.
GLEESON CJ: Well, how would section 44H apply to the example I gave?
MR BASTEN: The example that your Honour gave would be an example of something ‑ ‑ ‑
GLEESON CJ: Assuming, of course, that what the pastoralist has done is done pursuant to a power in the lease.
MR BASTEN: Absolutely, and it may be a power which is implied; it may not necessarily be expressed or it may be. As long as it was done for a pastoral purpose, it would probably be valid. That is, of course, the first question, whether the pastoral lease is valid is the first question, but whether the pastoral lease “requires or permits the doing of” that activity under (b), we assume it does:
An activity is done in accordance with the lease –
well, there is no suggestion it is in contravention of it, and then it says:
the requirement or permission, and the doing of the activity, prevail over any native title rights . . . but do not extinguish them;
No doubt there is an impairment; nobody is “entitled to compensation”.
HAYNE J: Does it follow from your earlier submissions that to approach the problem in the way in which the Full Court did, that is, as a problem that is almost entirely, perhaps entirely, a common law question, may itself betray a false premise?
MR BASTEN: Yes. We say yes, your Honour, and that is one of the bases on which we put our ground of appeal at 892. Your Honour’s example, and perhaps my own example, also illustrate a question which arises as to how one identifies inconsistency of incidence of a grant. We say two things about that, firstly, that the incidence of the grant should not be identified in a manner which, in effect, reduces them to activities which can be carried out. There is a danger in looking for inconsistency between the activities which may be permitted as opposed to looking for inconsistency between the incidence of the grant itself.
So the correct way of approaching a pastoral lease, in our submission, would be to ask possibly three questions. The first, perhaps not relevant in the present case because it is answered in the negative, is whether the lessee is given the power to exclude Aboriginal people from the area subject to the lease. If he is, then, relevantly for the purposes of this Act, that is an exclusive possession lease.
Secondly, it must be asked whether he has power to restrict the access of Aboriginal people in relation to particular areas, and it may be that if he has, and that power is granted by the lease, there is an incident which is inconsistent. And, thirdly, it may be asked whether he has power to prevent Aboriginal people from carrying out particular activities on the property.
In each of these areas there is a problem with the way that the Full Court both identified the question and answered it. For example, it is not the correct approach, we would respectfully say, to look at the reservation as indicating the effect of the lease in relation to Aboriginal people. The correct approach is to undertake the exercise which the majority of this Court undertook in Wik, identify the nature of the lease in accordance with the background, historical background, which is probably the knowledge that there were Aboriginal people on the land, in relation to the statutory purpose and in relation to - and this how we understand the Court approached the matter - whether there are other limitations on the extent to which the pastoralist may exclude people which would simply be inconsistent with an intention that they also implicitly be able to exclude all Aboriginal people. In other words, the reservation is not to be set apart, but is to be treated as one factor, we would have thought a powerful determinant factor, indicating that no such right of exclusion was intended - intended in the objective sense - and it was not appropriate to exclude it from the consideration from the other terms of the lease and then to say the reservation defines the extent of the activities of Aboriginal people.
As we say in relation to the Northern Territory reservation, it is hard to conceive of a more complete application of a statement of principle and in our submissions we have sought to identify for the purpose of saying why that is so in Appendix A some of the historical material which predated the Northern Territory in Western Australian leases. We do say purely for the purpose of suggesting that the formulation of the reservation is to be read against an historical context which is inconsistent with any intention to exclude Aboriginal people from the lands, and I do not intend to take your Honours thorough that.
GAUDRON J: Can I just ask this. Is it your submission that under the 1988 amendments, now, one really looks only to the incidents of the lease to determine if there is total or partial extinguishment, and one really never has to look at what is said to be operational inconsistency?
MR BASTEN: Yes.
GAUDRON J: Because that does not ‑ ‑ ‑
MR BASTEN: Because that does not extinguish.
GAUDRON J: - - - affect extinguishment. It just affects a priority, if you like, of rights.
MR BASTEN: Yes, and, your Honour, might I just reiterate an answer to the first element of your Honour’s question that although 23G(1)(a) talks about the grants of rights and interests that are not inconsistent with native title, it also envisages that those grant – I am sorry. That the rights and interests granted as well as the activities pursuant to them may need to prevail over native title in some circumstances, which suggest a high level of abstraction in identifying the rights and incidents.
GAUDRON J: Well, that would come from 44H - - -
MR BASTEN: It does, your Honour, yes. I am not sure if your Honour Justice Gummow referred me this morning to section 24G(c) which is in the future act provisions. I was informed that you had and I had suggest it was irrelevant. Your Honour might have picked it up because item 17(1) in the transitional provisions referred to it.
GUMMOW J: Yes, that is right.
MR BASTEN: 24GC refers to grants which occur before 23 December 1996, but its operation is limited to activities which occur after that date. The relevance of the provision, however, is G is entirely consistent with this scheme in relation to things that have happened in the past. It does two things. One it provides for the future, expressly, and, secondly, it is consistent in the way that it does so with things that have happened in the past. Your Honour will see 24GC(1)(c) talks about the activity as the carrying on after 23 December 1996 of certain things and subsection (2) is consistent with 44H.
GUMMOW J: Yes, thank you.
MR BASTEN: May I then press ahead, if that is appropriate, and consider the other Territory tenures. They are dealt with in the Full Court’s judgment at pages 246 to 247 at paragraphs [344] and following and they are dealt with in terms which are expressed with reference to arguments put by the Territory because his Honour the trial judge had made findings that there was no extinguishment resulting from the creation of the national park. We do explain some of this in more detail in our submissions, but perhaps it is sufficient if I note for the purposes of understanding his Honour’s conclusion, the terms of section 122 which are set out at paragraph [349] in the judgment of the Full Court.
Your Honours will recall that both of these leaseholds were granted to the public statutory authority, the Conservation Commission, for the purposes of the Territory Parks and Wildlife Conservation Act. That Act basically provided for establishment and management of national parks, but 122 itself contained a form of protection, namely, that:
nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering –
non-commercial –
and for ceremonial and religious purposes.
HAYNE J: Now, that apart, whatever may be the consequences of that, was Division 2B engaged in respect of the park?
MR BASTEN: Only if necessary under an exclusory sense, your Honour.
HAYNE J: But that may be the question, may it not, whether the inclusion in 23B of subsection (9A) is to be regarded as significant in the construction of a statute creating what, on one view of things, is a statutory regime for the recognition of statutory rights and not a debate involving the trading of citation of paragraphs via 175 CLR 1.
GLEESON CJ: Is that the issue that was dealt with at paragraph [359]?
MR BASTEN: No. I am sorry, I ‑ ‑ ‑
HAYNE J: It is mentioned, is it not?
MR BASTEN: Yes, it is, the second part of the paragraph is. The first part of the paragraph dealt with a proposition that the leases could not have been granted after the enactment of the Racial Discrimination Act validly because of the existence of native title in relation to the land and that they were, therefore, past acts which were validated and not falling within the other categories of past acts. They were category D past acts. That was the first argument dealt with in that paragraph, your Honour. The second argument is stated there in relation to 23B(9A).
GLEESON CJ: Could you state in summary form the effect of the difference between what Justice Lee held and what the Full Court held in relation to the matters with which you are concerned?
MR BASTEN: Your Honour, Justice Lee had held that the pastoral leases did not effect any extinguishment of native title. The Full Court held that there had been extinguishment in relation to what they term “exclusivity” of the incident of possession, occupation, use and enjoyment. They also held there had been extinguishment of the exclusivity of the right to make decisions – whatever that may mean – in relation to the land. Both those resulted from the pastoral lease and were limited in so far as the inconsistency which resulted in extinguishment had resulted from the use by the pastoralist for pastoral purposes of the land.
GLEESON CJ: In order to understand the significance of that, I need you to elaborate slightly on what Justice Lee held was the consequence of the pastoral leases.
MR BASTEN: I think his Honour held there was no extinguishment and that was an end of the matter, as far as that was concerned ‑ ‑ ‑
GLEESON CJ: But did he not put the interests of the pastoral lessees then in one of those schedules?
MR BASTEN: No, there are no current pastoral leases over the determination area.
GLEESON CJ: I see.
MR BASTEN: So the pastoral leases were historic. They had been replaced by the park, so he did not need to deal with them, having decided there was no extinguishment. No doubt he would have held that the pastoralists’ interests prevailed, if they were still extant.
GLEESON CJ: From your clients’ point of view, what is the practical difference between what Justice Lee held and what the Full Court held?
MR BASTEN: The problem arises because of the next stage in their Honours’ argument, about which both we and the Territory complain. They said that that level of extinguishment having been achieved, the conservation leases, if I can call them that, extinguished no more. So they held that the Conservation Commission leases had no extinguishing effect. We would be content with that finding, if their Honours were wrong about pastoral lease extinguishment, then there is simply no extinguishment. There are existing interests which will prevail and need to be acknowledged, and I will come back to that, if I may.
The Territory’s approach, of course, is that what they want to do has nothing to do with pastoral purposes. Quite the contrary. They want to preserve the land, get rid of cattle, if there are any cattle there. So that they say it is irrelevant that there may have been a level of extinguishment of decision making for pastoral purposes, because they want to use other purposes and they complain that the finding of extinguishment is inappropriate and inadequate. We say it is inappropriate and does not apply. So those, in practical terms, I think are the two views. I may not have expressed that very clearly.
GUMMOW J: Neither the trial judge nor the Full Court approached it through section 23G?
MR BASTEN: No.
GAUDRON J: And are you in a position to say how the determination should be worded with respect to your clients?
MR BASTEN: Your Honour, in our submissions in the Territory appeal matter we set out the orders sought at pages 34 to 35. It does not vary, I think, from the way in which we put it in the notice of appeal.
GUMMOW J: You have still this word “possession” in there.
MR BASTEN: Yes.
GUMMOW J: Not just occupation, use and enjoyment.
MR BASTEN: Yes.
GAUDRON J: But no “exclusive”?
MR BASTEN: No, because paragraph (c) requires that we recognise the interests that arise both in the commission and in members of the public ‑ ‑ ‑
GAUDRON J: Yes, they are public rights.
MR BASTEN: They are public rights.
GAUDRON J: Yes, thank you.
MR BASTEN: Your Honours, the other two matters which are dealt with in the appeal, one of them is that which your Honour Justice Gaudron just referred to, we make some comments at page 32 of the submissions ‑ ‑ ‑
GAUDRON J: Page 332?
MR BASTEN: Page 32 of the submissions, just before the orders, in relation to the interests in land. I do not want to repeat what I say there, but we quibble with the determination to the extent that it identifies other interests held by members of the public.
GAUDRON J: They may have rights, but they are not interests.
MR BASTEN: They may have rights, they are not interests within 225, we say. We might also say that if there are such rights, it would be helpful to know what they are with a little more precision. For example, one might have thought that if public rights were to be identified, they might have been public rights arising under the Territory Parks and Wildlife Conservation Act, rather than the common law.
GAUDRON J: That is what your proposed determination refers to, the rights under ‑ ‑ ‑
MR BASTEN: Yes, it reflects that, I need not perhaps say more than I say on that part. The other aspect of our appeal concerns the protection of cultural knowledge which we deal with at part 10 of the submissions. His Honour Justice Lee made a finding in terms of a right to maintain and protect places of importance under traditional laws and customs and customs and practices in the determination area. I think we indicate in the submissions where that is to be found and we have reinstated in the orders sought a right in those terms.
GAUDRON J: Does that mean more than a right to exclude people from particular sites?
MR BASTEN: Yes, it may do, your Honour, subject to ‑ ‑ ‑
GAUDRON J: I could certainly understand a right to exclude from particular sites and a right to control access to particular sites, but I have some difficulty in seeing how else it is in relation to land.
MR BASTEN: Yes. Well, your Honour, it may be that, in part, that is the position of the Commonwealth too, because they refer specifically to a right which – well, they do not seem to quibble with the appropriateness of sacred site protection legislation having application and we would say, if that is right, then they can have no objection to a native title right in those terms which might be of significance to native title holders, but ‑ ‑ ‑
GAUDRON J: It seems that if that is correct, then again the determination has to be reworded.
MR BASTEN: May I take it one – - -
GAUDRON J: Yes.
MR BASTEN: I understand your Honour is putting to me that if that is all that is sought, then it might need to be.
GAUDRON J: What I need to know is what else is sought that can fairly be said to be in relation to land?
MR BASTEN: Yes. Well, your Honour, in the submissions we seek to identify the nature of such cultural information and beliefs as the substratum for maintenance of those traditional laws and customs. We say perhaps as much as can be said about that, I do not want to repeat it. One aspect of this Act which perhaps has not been fully evaluated is that it appears to provide a mechanism for enforcement of Aboriginal laws under our system of law and courts which would be consistent with the assumption that, absent any sovereignty in Aboriginal people, their powers of control and enforcement must now be limited in accordance with our laws.
If that is right, then it means that women of the Nyawamnyawam tribe who want to protect their site from recalcitrant members of their own clan, if there be such, would not do so by traditional enforcement mechanisms but would come to a court to seek relief. Accordingly, in that sense the protection of their cultural beliefs and customs is a matter which is entitled to protection under the common law and could therefore be reflected in the determination.
CALLINAN J: Mr Basten, I think I may have asked something like this before, but if there were no means available for the enforcement of rights and interests under traditional laws or, indeed, if there were only ones that the common law would reject as inappropriate because they might have been violent means, then do you have a title that can be recognised by the common law?
MR BASTEN: We would say one must have in order to be consistent with Mabo, your Honour, because Mabo accepted that sovereignty had gone and therefore the traditional mechanisms for enforcement of rights which might have theretofore existed must have gone too. That we see as one element of the decision in Mabo.
CALLINAN J: But why would those means necessarily have gone, assuming that they did exist? You might remember - I think it was at page 51 - Justice Brennan referred to “making the title effective” or “effective means”. I have forgotten the language but you may recall there is a reference to “effective”.
MR BASTEN: Your Honour is correct.
CALLINAN J: I think I might have asked you about it in a previous case, Mr Basten. It is a matter that troubles me and if you could assist me on it, I would be grateful.
MR BASTEN: I suppose that ultimately the enforcement of any right under our system of law involves the legitimate exercise of power by the State. That is what the courts do. The mechanisms which are thereby made available, at least in relation to land – and one must acknowledge that limitation on the scope of Mabo – those mechanisms would now be available. In other words, once one translates the content of traditional law and custom into rights and interests which can attract relief in our courts, then that relief may be available against settlers, third parties, foreigners or other Aboriginal people, otherwise it would be to introduce a discriminatory element to say that they could not enforce their rights amongst themselves by our laws. But your Honour’s concern is that once their traditional mechanisms have been, as it were, subverted by the acquisition of sovereignty, there is now effective assertion of them. Maybe for a scintilla of time that is correct, but there is no reason to suppose in theory that the common law did not impose itself immediately in place of the system of enforcement which was theretofore available.
CALLINAN J: I appreciate the force of what you are saying, but the point is really in a sense raised at page 109 in that passage from “Elements of Land Law” that you referred us to before lunch from Gray.
MR BASTEN: Yes.
CALLINAN J:
The truth is that rights are not enforceable against third parties because they are ‘proprietary’ in character; they are ‘proprietary’ precisely because they are enforced.
Now, pre-common law, before the application of common law, were these laws enforced? If not, how would the common law recognise them? I understand that there are different ways of enforcing them. It might be by consultation or persuasion but it seems to me at first sight there would need to be something.
MR BASTEN: I do not dispute that, your Honour. All I can really say in answer to your Honour was that that would be a question of fact which would have to be determined by the trial judge.
HAYNE J: What weight, if any, then do you give to the words “customs observed”?
MR BASTEN: “As far as practicable” I think is the terminology in Mabo but if one comes to ‑ ‑ ‑
HAYNE J: Leave aside Mabo - 223(1)(a). What content do you give to the expression “customs observed”? Observance of customs may be enforced by nothing more effective than the shunning by other members of the community - displeasure.
MR BASTEN: Yes, there must be some form, (a), acknowledgment, which is presumably an internal process and, (b), observation, which means, presumably, the subject of at least an understanding on the part of others that what you are doing is wrong. Now, all I am really saying is that if in traditional times that might have been greeted with a spearing or ostracism or some sort of exclusion from land which can no longer be enforced ‑ ‑ ‑
HAYNE J: Or by no communally-enforced sanction beyond that of saying, “X has behaved dishonourably”.
MR BASTEN: Yes. I do not have any difficulty with that, your Honour. The only proposition I am putting though is that where these are rights in relation to land, I do not understand there to be a limitation which would prevent the use of the common law courts in now enforcing them.
HAYNE J: It may come to bear most pointedly in questions of succession and those who are among the group that have the interests. It may be matters of custom, not of communally-based sanction.
MR BASTEN: Yes. Well, your Honour, in the Northern Territory Land Rights Act those questions are addressed and power is given to the land councils to identify those who by, as it were, traditional succession inherit rights in relation to particular land. Under this Act we have nothing other than resort to the courts to allow that to happen. There are not administrative mechanisms. There are no other judicial mechanisms available. Your Honour, I would foresee there are significant areas in which problems will arise in relation to the enforcement of determinations of native title once they have been made, but the proposition that we are looking at now is the extent of the determination.
CALLINAN J: My point, if it has any point at all, cuts in before that.
MR BASTEN: I appreciate that.
CALLINAN J: It is a recognition point. How can the common law recognise something that cannot be effectively enforced?
MR BASTEN: Well, there are questions of fact involved in effective enforcement. I suppose your Honour would accept that as a response and, as I said at the outset, at least in relation to our clients in this case, the evidence about these factual matters of traditional law and custom were accepted by the Territory. I am not sure that I can say there was no cross‑examination of anybody but it was very limited and they made their position clear at the outset of the hearing, in other words, on the basis of reports and statements that they had seen, that they were not challenging any of this. But I do not have a difficulty with the proposition underlying your Honour’s question, I do not think.
CALLINAN J: Thank you.
MR BASTEN: Your Honours, I think those submissions cover the matters that I sought to deal with in our appeal. Might I refer briefly to the submissions we make in support of the Western Australian applicants and, your Honours, it will be apparent from the index at page 2 of the submissions that we have focused our submissions, apart from matters of general principle, on a specific range of issues which we apprehended had some broader importance and which were also ones that we could deal with without addressing in detail the facts. Now, it may be that ultimately one needs to do that. We do not seek to do that in our submissions.
Parts 5 and 6 and 7 are all concerned with questions relating to the operation of pastoral leases, and I will say a few limited things in relation to that. Parts 8, 9 and 10 are all issues relating to the Ord River Project and the use of Crown land and the operation of the Public Works Act. Parts 11 to 15 all concern minerals and mining tenements.
Might I start by saying a few words about minerals, because this is an issue which has express relevance in the Northern Territory, although the ground was not raised in our appeal. What we seek to do in those submissions, starting at page 36, is to put forward a proposition in relation to the legislation which seeks to vest minerals in the Crown and I do not seek to do more than summarise, if I may, the points we are making there.
The relevant legislation which was dealt with by the Full Court was ultimately section 3 of the Minerals (Acquisition) Ordinance, which we have set out at paragraph 12.1. What we say in substance in these pages is that prior to any alienation of land in the Territory, the Crown had a radical title both to the land and to the minerals, that what happened in the Northern Territory, as elsewhere in Australia in the early days, was that the initial grants did not contain that full reservation of minerals, which is now common place in conveyances.
The history of the operation of section 3 of the Ordinance was one which required a variation to the terms on which the Commonwealth had accepted the land mass of the Northern Territory. The purpose was expressly to allow the Territory to resume the interests which had been granted by way of freehold grants in specific areas in the Territory, which were known and identified, so that they were thereafter held from the Crown.
Now, if that is the purpose and intended scope of the legislation, we have no interest in it, because any grant of a freehold estate would have extinguished native title, the position of minerals will be no different. The proposition that the Act was intended to do something in relation to minerals, which were now vested in the Territory, is, in our submission, inconsistent with that history and, accordingly, it should not be read as having an effect which was beyond the clear intention of the legislative scheme. For that purpose we say that that which is said to be vested absolutely in the Crown is that which the Crown did not theretofore own.
Now, whether the result is a radical title or something more is a separate question. Our submission in that regard, which obviously has ramifications for the Western Australian legislation, is that what was intended was to vest a radical title. It was one of those statutory vestings which consistently with the cases discussed in Yanner v. Eaton with respect to statutory vesting, was and has always been construed for the purpose for which the vesting took place and subject purely to the matters of control of management which were intended to accompany the acquisition of some property interest.
We say that the purpose of vesting minerals in the Crown was, as with land, to insure that the Crown had power to grant interests by way of sale of the minerals and mining legislation. For that purpose there was no need to have absolute beneficial property any more than there was such a need in relation to land, and that, accordingly, the effect of the conferral of ownership of minerals was no more than that which was necessary for the purpose of granting mining tenements.
The next stage in the argument is that the grant of a valid mining tenement consistently with authority constitutes a sale of the minerals by the Crown just as much as an auction of a fee simple estate might do. That, at least prior to the Racial Discrimination Act would have had the effect of extinguishing native title in the minerals. There is a separate question as to the effect of a mining tenement on the land, other than the minerals, and what we say in that respect, in particular at part 14 of the submissions, is that the granting of a mining tenement which could occur in relation to privately held land, was never intended to effect any extinguishment of underlying title. That was so before the existence of the Racial Discrimination Act. Therefore, one would not construe a mining tenement as having that effect.
CALLINAN J: Mr Basten, can I ask you this. If, in fact - and assume this for present purposes - native title is a bundle of rights, and that bundle of rights includes rights that have been traditionally exercised or observed; is that correct?
MR BASTEN: Yes.
CALLINAN J: There is no evidence of an traditional observance of the exploitation of minerals. I am not talking about ochre and other - - -
MR BASTEN: No, I accept that, your Honour.
CALLINAN J: For your submission to be right, does not one need to be able to say that native title is something other than a bundle of rights? That it is equivalent to freehold?
MR BASTEN: No, I think not, your Honour. Well, freehold is said to be a bundle of rights, too. That was Minister for State of Army v Dalziel.
CALLINAN J: Yes, but there are numerous cases that say freehold at common law entitles one to anything underneath the surface.
MR BASTEN: Yes. Yes, that is so. The proposition which we would make in regard to that goes back to that process of translation of control of access to land and use of its resources into a right or interest which is recognised under the common law. Now, that process, in our submission, does not involve or require that native title holders establish a particular use of their land in order to enjoy control of access to it or to its resources.
CALLINAN J: But access is a different matter, is it not, to exploitation?
MR BASTEN: Yes. I think I went the next step in my original comment in relation to that, that we would see the translation as translation into control of access to the land and control of the use of the resources - vegetable, mineral or otherwise I perhaps should have added on - or under the land.
CALLINAN J: But say it was land that was only used for, say, very occasional foraging and assume that that is the only traditional custom observed or practice observed in respect of it. How can that translate into a form of title, however you describe it, which obstructs the exploitation of the minerals?
MR BASTEN: I think on the hypothesis that your Honour puts, we might well accept the conclusion. The difficulty is to find that case where all one has is a right of foraging. There may be those cases. If one ‑ ‑ ‑
CALLINAN J: You see, I looked at the United States cases that deal with this, and they do seem to be affected by the treaty arrangements that were made with the Indian peoples involved and the terms of the reservations and things of that kind which are not present here.
MR BASTEN: Yes, and of course that can work in two ways.
CALLINAN J: Yes.
MR BASTEN: It can either give greater or lesser rights depending on how one looks at it.
CALLINAN J: Yes, quite.
MR BASTEN: I must confess that we have not sought to rely on that material, for that reason.
CALLINAN J: Mr Barker did. He relied on that material.
MR BASTEN: We do not seek to rely on it, your Honour.
CALLINAN J: No, I understand that.
GLEESON CJ: Just to take that point a slightly further step. Consider petroleum: a long distance under the surface of the earth and in the form of hydrocarbons which are fluid, the exploitation of which might depend upon a complex set of arrangements made between owners of adjoining interests as to who is treated as being entitled to capture the hydrocarbons and exploit them. How does that translate into native title?
MR BASTEN: It does not in its terms, your Honour, any more than it does in relation to ownership of the land under other systems, we would say. I mean, there is case law about that which is not resolved by the fact that somebody holds fee simple estates or leasehold interests in the land under which the hydrocarbons are found. Even the existence of a mining lease may give rise to problems as to where the hydrocarbons come from. The question for present purposes is whether there is some basis for saying that what is within the land is excluded from the nature of the interest in the land that is that of the native title holders. They have no power to sell those hydrocarbons, on the assumption that the radical title in the Crown gives that power. They may have an interest in restricting access to that land because the wells and so on may be destructive of their communities. We know that mining is highly destructive of traditional ways of life. But, your Honour, we do not shy away from the proposition that ultimately they have an interest in all of the land and the resources under it.
GLEESON CJ: It is one thing to say their interest in the land enables them to control access to the land which may be necessary for somebody who wants to exploit the resources. It is a different thing, is it not, to say they have an interest in the resources. Do you say either or both?
MR BASTEN: We do not say the first, your Honour, because the first is limited by mining legislation. No private owner has that sort of ‑ ‑ ‑
GLEESON CJ: Then what is the nature of their interest in the resources, as distinct from an interest in land which might make it difficult for someone who wants to exploit the resources to get access to the land?
MR BASTEN: They have an interest in that which the Crown can sell, I suppose. Ultimately, it is a commercial interest, probably, an interest in some recompense for a diminution of the value of their land.
GLEESON CJ: Royalty.
MR BASTEN: The sort of interest which any land-holder may have in the grant of a mining tenement.
GLEESON CJ: Well, whether a land-holder has a royalty interest may depend upon whether the mineral has been reserved to the Crown, for example.
MR BASTEN: Yes.
GLEESON CJ: In the days when there used to be privately-owned coal in New South Wales, then the owner of land beneath which coal existed may be able to extract a royalty from a mining company.
MR BASTEN: Yes. Your Honour, the submissions that we have put do not actually address the petroleum legislation. I may need to be careful that I do not make comments about it which – there may be differences in the formulation of the vesting under the Petroleum Act. We have not sought to make submissions about that and I perhaps should be careful about how far I put our case in that regard.
GAUDRON J: I may have confused myself here, but I take it that the purport of your submissions is to say no extinguishment of native title. They seem to leave unaddressed, however, the rights and interests involved.
MR BASTEN: Yes.
GAUDRON J: Do we not need to look at the rights and interests?
MR BASTEN: Your Honours may do. All I can say is that we have been selective in the issues which we have addressed and we do not address that issue specifically.
GAUDRON J: You make no request for any amendment of the determination, other than - - -?
MR BASTEN: We make no request in relation to Western Australia. In relation to the Northern Territory, the question of minerals simply did not arise in argument. Perhaps I should make this perfectly clear, our concern was that the question of the operation of the Northern Territory Minerals (Acquisition) Ordinance arose in these proceedings, not at our instigation. It has, as far as we are aware, no relevant operation. It may have very significant operation in other parts of the Territory. Our concern was that almost by a side wind the issues which might be of great importance to native title holders elsewhere in the Territory were being determined on a point on which very limited argument had been put below. Our primary concern was to say that for the reasons I have indicated, the Minerals (Acquisition) Ordinance had a particular history and we say a limited effect. That is really the primary focus of our attention.
GLEESON CJ: How is it an issue that arises, then, in this case, the Territory Ordinance?
MR BASTEN: It was raised in the application and was determined by the Full Court on submissions made by the State of Western Australia and the reasoning of the Full Court does not directly address any difference of approach between the Northern Territory and WA legislation. Full argument was never put in relation to the Northern Territory Ordinance, but a finding was made. That finding was the subject of an appeal. We sought to address on that ground.
GLEESON CJ: A finding? Was a decision made?
MR BASTEN: Yes, in paragraphs [542] to [544], your Honour,on page 293 of 170 ALR. It commences:
No submissions were made by the parties regarding minerals in the Territory –
that is correct and so is the reason given. But their Honours go on to deal with the issues; [544] deals with ochre and then says:
However, in so far as there may once have been a native title right –
a question which your Honour Justice Gaudron perhaps is asking me, assumed rather than addressed even in the Full Court –
to use and enjoy any of the minerals that are now vested in the Territory, that right was extinguished by the Minerals (Acquisition) Ordinance.
GAUDRON J: Yes.
GAUDRON J: Yes.
MR BASTEN: That was the conclusion reached and found a reflection in the determination without any reference to submissions by the parties.
GAUDRON J: How is it reflected in the determination?
MR BASTEN: Your Honour, at page 807, if your Honours are in volume 4 of the joint appeal book. I think that is the only place the determination is found.
HAYNE J: Page 807 or 837?
MR BASTEN: Page 807.
HAYNE J: Is it the Full Court determination?
MR BASTEN: No, it is the judgment which follows ‑ ‑ ‑
HAYNE J: The second judgment.
MR BASTEN: Second judgment, yes.
HAYNE J: Yes, thank you.
MR BASTEN: Paragraph 7 - I am sorry. Your Honour, 834 I am told is the final sealed copy.
HAYNE J: Yes.
MR BASTEN: It is still paragraph 7 on that page, your Honour.
GLEESON CJ: Your argument, in so far as it becomes necessary for us to deal with it, is that although the evidence did not establish any traditional Aboriginal law, or custom, or use relating to minerals, and although the Ordinance said all minerals are acquired by and vested absolutely in the Crown in right of the Commonwealth, we should leave open the possibility that there were rights and interests in relation to minerals, and if there were they were not extinguished by the absolute vesting of them in the Crown.
MR BASTEN: Yes, that is the submission I am putting, your Honour, for the reasons which we set out in part 12 of the submissions. Your Honours will see at paragraph 12.7 at the bottom of page 40 the proposition that there were some 2000 grants of estates in fee simple and Darwin and the gulf district - the footnote is a mistake but - made in the 1870s and that they were the subjects of the Bill which had this effect. Your Honour, we then deal with the authorities in relation to statutory vesting. We deal with the counter authorities set out in Kean’s Case and the comments in Milirrpum, which are dealt with by the Full Court in that very brief passage from their Honour’s judgment. But we have made the submission on the basis that your Honour noted, namely, the same basis as the Full Court, namely that an assumption that there might be native title interests in minerals.
It may be unsatisfactory that the matter is resolved by the Full Court in that way because this Court obviously is not in a position to deal with the assumption. We have not sought to deal with it. Our concern is that we may have lost a right which we would otherwise have had without having ever addressed it in argument and, of course, it is not just our clients who, in the national park, perhaps are not concerned about these things. It has broad ramifications for others within the Territory who might want to put a contrary position.
GAUDRON J: I suppose you say that paragraph 7 adds nothing to the determination anyway?
MR BASTEN: As a practical matter, from our point of view, it does not.
GAUDRON J: Yes. No, but even from the others. Well, if paragraph 5 were made subject to the pieces of legislation set out in paragraph 7, you would be happy with a determination in those terms rather than a specific declaration, as it were, that there was no ‑ ‑ ‑
MR BASTEN: Yes.
GAUDRON J: Yes, and it would not affect anything one way or the other, I suppose you would say, as between any of the parties if paragraph 5 were expressed in that way and paragraph 7 deleted.
GUMMOW J: Yes, what you want is something that makes it clear there is no declaration has been made about this, one way or the other.
MR BASTEN: Yes, that is so.
GUMMOW J: At the moment it appears to be a negative declaration with all the vices that negative declarations have.
MR BASTEN: Yes.
GLEESON CJ: All right, thank you.
MR BASTEN: Yes, thank you, your Honour. I realise that if I take off the 20 minutes, I am now at the end of my time, but might I just deal very briefly with the question of the pastoral leases. I do it in this way because, although we do not seek to resile from anything we say in parts 8, 9 or 10, concerning the public works resumption or the Ord Project as it is defined in paragraph [10] of the Full Court’s judgment, those are matters which Mr Sofronoff will deal with in more detail, and he is following me.
Might I just say one thing though in relation to a question which arose concerning the operation of the Public Works Act. We address that at paragraph 10 at page 34, which is where we set out the authorities in relation to statutory vesting. The question, however, arose as to the – I think one of your Honours asked the significance of this question for the purposes of these proceedings. Might I just give the reference. In the bundle of materials volume 4 at page 822 there is a map which identifies by cross‑hatching various areas. There is one area identified as Packsaddle Farm Area. That is the area which is in issue in relation to the Public Works Act resumption. What that does not do, and which would on Mr Barker’s argument perhaps be relevant, is to distinguish between the resumptions in 72 and 75. I merely point that matter out.
Your Honours, the other point I wish to make in that regard was at paragraph 10.1 of our submissions. We identify an error on the part of the majority in the Full Court in line 2 – no, I am sorry, I thought the paragraphs in the judgment had not been given, but they are given in the footnote.
Your Honours, in relation to the pastoral leases in Western Australia, we deal at part 5, starting at page 14, with the approach of the Full Court and we make some submissions as to the way in which their Honours dealt with that matter through to paragraph 5.9. Might I say that at 5.9 there is a typographical error in the extract from your Honour Justice McHugh’s judgment in Baba, the “Reliance” in the third line is, of course, on the maxim. I do not know how that came about. I will not repeat any of those submissions, if I may, given the time.
GUMMOW J: But how did they square with your appeal in your own matter?
MR BASTEN: Your Honour, what we say in relation to the way the Full Court dealt with the matter in our case, of course, is only peripherally dependent upon the reasoning absent the Native Title Act, but to the extent that it is dependent on the reasoning, we say that it is clear from the passages I took your Honours to before that the approach that the Full Court adopted in relation to the Territory reservation was the same approach as it adopted in relation to the Western Australian pastoral leases. It dealt with the State pastoral leases first, and then basically said, “We adopt the same approach.” Accordingly, that approach is infected with the same error as to how one identifies whether the effect of the grant of a pastoral lease was, indeed, clearly to extinguish native title or not. We spell out in relation to the reasoning in these submissions in some more detail why we say that their Honours approach it on a flawed basis.
GUMMOW J: What I am trying to get at, in your WA submissions on page 14, section 5, when you are dealing with the Full Court there, there is no engagement of the 1998 amendments.
MR BASTEN: No.
GUMMOW J: Are you saying there should have been?
MR BASTEN: Yes, well, we ‑ ‑ ‑
GUMMOW J: Otherwise, I just wonder what the utility of what you are doing there is.
MR BASTEN: We have assumed for the purpose of argument that the Full Court address the Western Australia pastoral leases on the correct basis. But the problem is ‑ ‑ ‑
GAUDRON J: Well, when you say on the correct basis, you mean on the basis that West Australian legislation did not apply?
MR BASTEN: That is so, the Western Australian native title legislation.
GAUDRON J: If that assumption be wrong, then this is largely irrelevant, is it not?
MR BASTEN: Yes. It is very good, but it is irrelevant.
HAYNE J: A lot of time was spent on it.
MR BASTEN: And your Honours will say the same in relation to part 7 which deals with unenclosed and unimproved land, in relation to which I wanted to add, if I might, one proposition in respect of which we disagree with the approach taken by the appellants in P67, I think, if I understood that proposition correctly.
I will not take long with this because I understand that there may be a concern about its relevance, but could I just make the point very quickly. Your Honours will see at 170 ALR 235 the terms of section 106 and 106(2). If your Honours go to 106(f) at line 20 there is contained there, curiously one might think, but there is a reason why it has all been run together which we explained, the second limb of (f) says:
together with a right for any person to pass over any such land which maybe unenclosed or enclosed but otherwise unimproved.
That was the terminology which was also applicable in relation to Aboriginal rights prior to 1993 under the Land Regulations 1898. A change was made in 106(2) when it was inserted to talk about unenclosed and unimproved parts of the land, thereby arguably restricting the Aboriginal reservation to areas which were not, as their Honours found, fenced, because if they were fenced, they were enclosed.
We say that there was no intention to change what was expressed differently in (f) and 106(2) and that follows clearly from the extract from Hansard at the bottom of page 236, line 50 to the end of the paragraph at line 8 on the following page. In other words, there was a different version of the language adopted in 106(2) to that which had theretofore existed. There was no clear intention to take something away from the natives. Indeed, the contrary intention was expressed by the Minister, and to whatever extent plain and clear intention still has a role to play, one would not, in our submission, construe the phrase “unenclosed and unimproved” in a way which limited the rights of Aboriginal people.
Your Honours, those are our submissions in support of both appeals.
GLEESON CJ: Thank you. Just before we proceed with Mr Sofronoff, Mr Solicitor for Western Australia, you gave notice earlier of a question.
MR MEADOWS: May it please the Court, could I ask my learned friend, Mr Pullin, who can speak first hand about these matters, to address the Court?
GLEESON CJ: Certainly. Yes, Mr Pullin.
MR PULLIN: May it please the Court. I am afraid the full story still has not been told about how things unfolded and perhaps I could just go through it blow by blow. It might help. When the 1998 Commonwealth legislation was passed – that was in September 1998 ‑ ‑ ‑
GUMMOW J: You mean commenced.
MR PULLIN: Commenced, I am sorry. We then, of course, proceeded to the hearing – there was a hearing before Justice Lee. He had reserved in April 1998, and when the amendments commenced, we all came back again to make submissions about ‑ ‑ ‑
GUMMOW J: On 24 October.
MR PULLIN: ‑ ‑ ‑ yes – about the effect of the amendments. One of the submissions we made was to try and say that the Ord Project was an act attributable to the Commonwealth, and that has been dealt with by his Honour and the page references have been given. The reasons for decision were handed down on 24 November 1998. We have a feeling that the determination itself was to take effect a month later – we will have to try and find that – but it is not significant because the Titles Validation Act came into operation on 5 May 1999, the relevant part which brought in Part 2B ‑ ‑ ‑
GUMMOW J: That is the Western Australian statute?
MR PULLIN: Yes, that is right. Then in the Full Court, as we know, at paragraph [659] ‑ ‑ ‑
GUMMOW J: The Full Court appeal at that stage was pending, but not heard.
MR PULLIN: That is right. But in the Full Court, as Mr Basten has said, and directed the Court’s attention to paragraph [659], one party did seek to argue the application of Part 2B of the Titles Validation Act to the Ord Project, and the paragraph explains what happened in relation to that. It was heard that extinguishment had already occurred, and there was a view that there was, therefore, no need to go to Part 2B, and there is some force in that view, which is implicit, because if you look at the provision which authorises the State legislation, which is 23A, you will see that in 23A(4):
This Division allows States and Territories to legislate in respect of certain acts attributable to them, to extinguish native title ‑
So at least there is an argument open that, if there is a need to bring about extinguishment, there can be legislation to that effect, but if there already has been extinguishment, it is not necessary to look to those provisions. I do not want to go into the argument that might be had, but that is one view about it.
Then, after the reasons of the Full Court were handed down, we then went back again – I was not in attendance at this stage – but there was then debate about the form of the determination. If you go to page 798 in volume 4, you will see that that is in the course of the reasons for decision ‑ I think it is 798, it might be ‑ ‑ ‑
GUMMOW J: You seem to be missing page 12 of the judgment.
MR PULLIN: That was a reference to 44H. It is on page 798. There is a reference to the fact that there was an attempt made by the third applicants to invoke section 44H of the Native Title Act at that stage. The court said that they thought it was too late, but, in any event, the section appeared to “have no practical application” because it was:
to avoid doubts that might arise by reason of the carrying on of certain activities on leased land.
And that the judgment was given in November 1998 and the point was “academic”. That is probably a reference to the view that the appeal was an appeal strictu sensu, but ‑ ‑ ‑
GAUDRON J: Do you say that is the correct approach?
MR PULLIN: Well, first one has to look at section 44H and we say that, in fact, it is applying only to future activities and that operational inconsistency in the past still did bring about extinguishment and is not affected by section 44H. I understand - I have not read it, but we have just had sent through the explanatory memorandum which does seem to indicate that that was the intention of Parliament. As we understand it, this section was brought about after the Wik decision was handed down. There was a great fuss then in the Press about what it was that pastoralists would be able to do on their properties and the idea was that there would be some legislation which would allay all their fears that they could no longer build fences or do anything.
GAUDRON J: Section 44H, as I read it, merely repeats what had been said in Wik, namely, that rights dependent on the pastoral lease prevailed.
MR PULLIN: Yes, but speaking to the future and not speaking in the past. The only reference to the transitional provision is not to activities but to the grants. So, in other words, it has to have been - it applies to grants made in the past, so if a pastoralist said, “Look, I have had a pastoral release for 40 years and now I cannot build a fence”, section 44H was intended to cover that and say, “Look, you can still build the fence and this provision will make it clear that you are able to do that from now on”.
HAYNE J: Can a court consider a question of extinguishment in relation to a lease that was granted before the commencement of the 1998 amendments without regard to the content of the 98 amendments?
GAUDRON J: And State legislation ‑ ‑ ‑
HAYNE J: And the relevant State.
MR PULLIN: Yes, well, I am afraid there was some political argy-bargy in Western Australia which brought about a different provision which makes it clear that this legislation, the titles validation legislation, and part 2B, only applied to leases - and we are talking leases - if they were still on foot as at a date, which is December ‑ ‑ ‑
GLEESON CJ: Were the leases with which we are concerned still on foot as at that date?
MR PULLIN: No, none of the pastoral leases in Western Australia were still on foot. They had all been resumed ‑ ‑ ‑
GLEESON CJ: That was what I wanted to ask you. Where can we find the Western Australian legislation so that we can consider whether or not it was necessary for the Full Court to take account of that legislation by reason of the enactment of the 1998 amendments? Where do we see it most conveniently?
MR PULLIN: Well, let me just deal with the specific provision - I have just now lost the reference to the section which - I am talking first about the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995, and a relevant Act is defined in 12I and it is in the Western Australian legislation, we think. Apparently, only the 1995 Act is there and not these later ones but we will have to provide those tomorrow, but the whole of Part 2B starts off with the definition of “relevant Act” and “relevant Act means a previous exclusive possession Act under section 23B” and various subsections from it “if the scheduled interest or the lease concerned was still in force on 23 December 1996”. So we say that none of the Part 2B provisions applied to any of the pastoral leases in Western Australia that we are concerned with because they had all expired or been resumed before then.
GLEESON CJ: Are you telling us that if and when we ever get the opportunity to see the Western Australia legislation that was enacted pursuant to Part 2B of the Native Title Act, we will find when we look at it that it had no application to any of the pastoral leases, the subject of this case. Is that what you are saying?
MR PULLIN: I am in that respect, your Honour, and I am being told that there might be some modification to that. The pastoral leases that I am referring to are what I call the conventional pastoral leases. I am told that one of the parties has what might be called a common law lease, which might be picked up as a pastoral lease because of the purpose in it, which was still on foot, which would be covered on this argument under this Part, but all of the pastoral leases that we say worked an extinguishment over the whole of the area, except for the mudflats, this Part 2B does not apply.
McHUGH J: Mr Pullin, that Act is at page 2265 of volume 8 of the materials.
MR PULLIN: We think, I am told, and I have not double-checked this, your Honour, that there were three stages to this Act. There was the Titles Validation Act 1995, No 16 of 1995, and then the critical one is No 9 of 1999, which was assented to and commenced on 5 May 1999 and that is what brought in Part 2B. Now, I am not sure whether the Court has that. We will just have to check that.
McHUGH J: There does not seem to be, no.
GLEESON CJ: We do not seem to have it and that is presumably because, perhaps for the reason you have just mentioned, everybody has regarded it as irrelevant.
MR PULLIN: Yes. Well, that is right. It leaves, of course, 44H, which is outside of that, but we say that, for the reasons that I have mentioned, 44H is speaking to future activities and we are concerned, in this case, with the pastoral leases that covered the whole of the land, with pastoral leases that were long ago expired and all of the activities had the extinguishing effect held.
Could I just then summarise, even if the Titles Validation Act should have been applied, that CDJ, in fact, requires an application of the law, is said to apply to Federal Court appeals and is said to apply or to require the application of the law at the time the determination was made by the Full Court, we say that the Court will still have to look at the question of principles because that raises the question of partial extinguishment which raises the question of the effect of expired pastoral leases.
It will still leave the question of reserves, the extinguishing effect of reserves, of permits to occupy, of conditional purchase leases, of the rights to fish, spiritual connection, cultural knowledge, putting aside the minerals questions which have been mentioned, but we say they are still in there, the determination, no evidence of exclusive possession. The only two areas that might be affected are the Ord Project, and there is a specific provision that we say works exactly the same result under Part 2B for the Ord Project, and all the necessary findings have been made to apply that provision which would bring about complete extinguishment, as the Full Court found; and leases, and most of the leases are within the Ord Project Area, although there are some ‑ ‑ ‑
GLEESON CJ: All right, that tells us what you say about Western Australia. We will see what the Solicitor for the Northern Territory has got to say about Part 2B in the Northern Territory.
CALLINAN J: Mr Pullin, are the relevant parts of the later Act, at page 26 of the appellants’ book of statutes? Do we have to look at any other sections but those? If you look at the appellants’ book of statutes, it has a number of sections from the 1999 Titles Validation Amendment Act.
MR PULLIN: I am not certain, your Honour, I think we had better give a copy of the reprint and the reprint is quite good because it shows what came in at what time when you are reading the sections.
GLEESON CJ: Thank you. Mr Pauling, what is the Northern Territory’s position in relation to Part 2B?
MR PAULING: Your Honour, we made submissions to Justice Lee in writing and we will provide copies of them. We said that if any of the Acts that were called in question fell within 2B, it had to be applied, but we said they amounted to previous exclusive possession Acts and therefore had the effect of not only extinguishing, but having that extinguishment confirmed.
We no longer press the argument that the Acts relied upon were previous exclusive possession Acts. So that from our point of view, your Honours, our legislation came into effect the day after the 1998 amendments came into effect and that was before Justice Lee gave his decision and nothing changed between then and the appeal.
GLEESON CJ: All right, thank you. I think we have heard enough to enable us to proceed with Mr Sofronoff and we can consider the significance of that for ourselves later. Yes, Mr Sofronoff.
MR SOFRONOFF: Your Honours, I propose only to make submissions about the Ord River Project in so far as it affects my clients and the Argyle Project in so far as it affects my clients. I will start with the Ord River Project. Could I ask your Honours to get the book of materials volume 4. If your Honours would go in that book to page 823, there is a map there which identifies the two parcels of land with which my clients are concerned. The map is part of a report of Mr Wilkin’s, who is a civil engineer who prepared a report for the State, describing the progression of the Ord River Scheme.
If your Honours have that map - it is figure 3 - at the foot of the map there is an odd‑shaped, peach‑coloured piece of land, on the right‑hand side of which the border is the river, and immediately to the right of that at the foot of the shaded area is a much smaller piece of land. The one on the left is described as King, location 380, and you can see that in faded print in the middle of that block, and the one on the right is Luman, location 12. You can see that also in faded print. Those two parcels were resumed, the one on the left from the Lissadell pastoral lease and the one on the right from the Texas Downs lease.
While your Honours have that plan in front of you, the Argyle lease, the mineral lease, stretches from the left-hand side of the left-hand shaded area into the white area and it covers a substantial area of land to the left of King Location 380. But, relevantly, it intrudes into King Location 380 in one small particular. In the left-hand-most corner of King Location 380, just diagonally, the corner just above the notation “3116” in the white area, if you were to draw on that corner a rectangular shape about the size of one’s little fingernail, that is the extent to which the Argyle lease intrudes into that portion of land and is the relevant part of the Argyle lease for the purposes of my submissions. So what your Honours have in front of you are the two pieces of land, King Location 380 and Luman Location 12 which are the two areas excised from the former pastoral leases about which the order of the submissions progress and, in addition, although not marked on that map, it is a convenient place to see the corner where a tiny piece of the Argyle lease intrudes into the King Location 380 portion.
If your Honours keep that book in front of you and if you would go to page 767 of that book, at that page your Honours will see the beginning of Mr Wilkin’s description of the Ord Irrigation Project. It is not necessary for your Honours to dwell on that page but, having introduced it, he then goes on to examine the various ways in which the Ord Irrigation Project was to be given effect. One of the things that had to be done was to ensure, your Honours will see at the foot of the page, against erosion where that was being affected by cattle. So the intention, relevantly, was to prevent cattle eroding the land. Mr Wilkin then goes on to describe, if your Honours go to page 774, how that plan to stop the erosion was to be undertaken. At paragraph 6.5 at the foot of the page in the third line, he describes the intention, the desire:
It was desired to protect the banks of the reservoir from erosion by stock, which would be naturally attracted to the water and choose to graze in its vicinity.
He then describes the idea of locating a fence, not quite at high-water mark when the dam would flood completely, but somewhere below it, to be realistic in terms of what can be expected in the usual years that the dam flooded, and the fence would form the boundary between the land on which no cattle were to intrude and land on which it might be permissible, and indeed in due course was permitted, cattle were permitted to graze.
If your Honours go to page 793, he then begins to deal with the steps that were taken to put that into effect by way of resumptions and at paragraph 9.3.1 he begins that, but relevantly, your Honours, at the foot of the page, the second-last paragraph, he refers to the resumption of areas of the Lissadell Pastoral Station and the Texas Downs Station that your Honours have seen on the plan. He then, on the next page, identifies once again the intention and the progress of resumption of land that came to be called Reserve 31165. Reserve 31165 comprised the two areas of land that I identified to your Honours on figure 3 that your Honours saw a moment ago, as well as the much larger peach-coloured piece of land on the right-hand side to which my clients make no claim. So, over the page then, at the top of page 795, he identifies the resumption of those areas of Lissadell Pastoral Station and the Texas Downs Station in 1972.
The statute that was used to resume that was the Land Act 1933, section 109. It is not necessary for your Honours to look at it now. It provides for a power in the Governor in Council to resume land for public purposes whenever he thinks fit, and it is in perfectly general terms. In our submission, when one looks at the resumption under that statute and purpose for which the resumption was made, was effected, one can see that the intention behind the taking of the land from the pastoral leases was the exact obverse of the position in Wik. In Wik the intention of the grant was to put cattle onto the property. Here the intention of the taking of the land was to get cattle off the property. In neither case was it any part of anybody’s intention to keep traditional dwellers off the property.
GLEESON CJ: Now, what is the relevance of anybody’s intention?
MR SOFRONOFF: Well, your Honour, one needs to - when I speak of “intention”, I speak of the effecting of the resumption of the land in circumstances where when one looks at the resumption itself, the purpose for which it was taken, the statute under which it was taken and one can not see anywhere a necessary implication that the effect of the taking was to destroy pre-existing interests amounting to native title. The intention was to take away the rights of the pastoralist to graze cattle.
CALLINAN J: Where did Mr Wilkin get his information from that he set out in this report in which he says what the intentions were?
MR SOFRONOFF: Your Honour, I can not answer that off the top of my head.
CALLINAN J: It is the intention as he inferred it to be at the time.
MR SOFRONOFF: Your Honour, I do not know whether it was that or whether in part ‑ ‑ ‑
CALLINAN J: Whether he may have had recourse to some documents, perhaps.
MR SOFRONOFF: He did because in the footnotes for his report he identifies minutes that he has had regard to.
CALLINAN J: Do not worry about it now, Mr Sofronoff. I would just be interested in that at some convenient time.
MR SOFRONOFF: Your Honours will see at page 809 of that volume, for example, at footnote 134, the:
Minute Paper for the Executive Council, 9 June, 1972 –
which related to a resumption. The next document is a:
File Note by Engineer, Planning Design –
So, he appears to have gone to the source documents.
CALLINAN J: Do we have any of those documents?
MR SOFRONOFF: No. It is pointed out to me that he was actually engaged on the project between 1965 and 1974. That appears at page 818 which is part of his CV.
GLEESON CJ: Is that a convenient time, Mr Sofronoff?
MR SOFRONOFF: Certainly, your Honour.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.21 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 MARCH 2001
- AGLC
- Aldridge & Ors v Walsh (as Liquidator) [2001] HCATrans 82
- Case
- [2001] HCATrans 82
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the liquidator had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in relation to the sale of certain assets of the company. It also had to consider whether the liquidator had breached his fiduciary duties owed to the company and its creditors by reason of his conduct in the sale process.
The Court analysed the nature of the liquidator's duties and the scope of s 52 of the Trade Practices Act. It held that a liquidator, in conducting a sale of company assets, owes a duty to act with due diligence and in good faith. However, the Court found that the liquidator's conduct in this instance, while perhaps not ideal, did not amount to misleading or deceptive conduct under s 52. The Court also concluded that the liquidator had not breached his fiduciary duties, as his actions were within the scope of his statutory powers and were taken in the honest belief that they were in the best interests of the company and its creditors.
The High Court dismissed the appeal, upholding the decision of the Full Federal Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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