Anderson v Wilson
[2000] FCA 394
•5 APRIL 2000
FEDERAL COURT OF AUSTRALIA
Anderson v Wilson [2000] FCA 394
NATIVE TITLE – Native Title Act 1993 (Cth) – Western Lands Act 1901 (NSW) (“the WLA”) – lease in perpetuity the subject of a native title claim (“the Lease”) – separate questions pursuant to O29 r 2 of the Federal Court Rules – whether the Lease conferred on the lessee a right of exclusive possession by virtue of the WLA or regulations made thereunder as in force at the time of the grant of the Lease or one or more of the terms and conditions of the Lease – no facts yet found.
NATIVE TITLE – extinguishment – requirement of clear and plain intention to extinguish incidents of native title – question of whether the Lease gave right to exclude those claiming native title – inconsistency and requirement of identification of extent of inconsistency – whether leases conferred right of exclusive possession involves complex questions of law and fact – not appropriate to finally decide questions until facts found.
NATIVE TITLE – use of early colonial history – whether historical and legislative context is a decisive consideration – relevance of extrinsic material – relevance of size and location of area subject to claim.
Native Title Act 1993 (Cth)
Land Act 1910
Western Lands Act 1901 (NSW)
Crown Lands Consolidation Act 1913
Western Lands (Amendment) Act 1934
Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687
Brayson Motors Proprietary Limited (In liquidation) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651
Hawkins v The Minister for Lands (1949) 78 CLR 479
De Britt v Carr (1911) 12 CLR 114
Davies v Littlejohn (1923) 34 CLR 174
O’Keefe v Williams (1910) 11 CLR 171
The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
The Wik Peoples v The State of Queensland (1996) 63 FCR 450
Macdonald v Tully (1870) 2 QSCR 99
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Yarmouth Corporation v Simmons [1878] 10 Ch D 518
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Yanner v Eaton (1998) 166 ALR 258New South Wales Legislative Assembly, New South Wales Royal Commission to Inquire into the Condition of Crown Tenants (Western Division of New South Wales) – Report and Summary of Evidence (Sydney: Government Printer, 1901)
New South Wales, Parliamentary Debates, Legislative Assembly 1901, Vol. 1, 3374
New South Wales, Parliamentary Debates, Legislative Assembly 1934, Vol. 1, 401
Sir Victor Windeyer, History in Law and Law in History, (11)(1) Alberta Law Review (1973) 123MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN V DOUGLAS WILSON
NG 6043 OF 1998
JUDGES: BLACK CJ, BEAUMONT & SACKVILLE JJ
DATE: 5 APRIL 2000
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 6043 OF 1998
BETWEEN:
MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN
APPLICANTAND:
DOUGLAS WILSON
FIRST RESPONDENTAND:
THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
SECOND RESPONDENTAND:
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
THIRD RESPONDENT
JUDGES:
BLACK CJ, BEAUMONT & SACKVILLE JJ
DATE OF ORDER:
5 APRIL 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The questions in the stated case be answered as follows:
Question (a)
“(a) By virtue only of:
(i) the Western Lands Act 1901 (NSW); and
(ii)the regulations thereunder, as in force at the time of the grant of the lease;
did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?”
Answer
Unnecessary to answer.
Question (b)
“(b) If the answer to the question (a) is ‘No’, by virtue of:
(i) the Western Lands Act 1901 (NSW);
(ii)the regulations thereunder, as in force at the time of the grant of the Lease; and
(iii)one or more of the terms and conditions of the Lease;
did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?”
Answer
Unnecessary to answer.
Question (c)
“(c)If the answer to question (a) or question (b) is ‘Yes’, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:
(i) extinguished by the grant of the Lease; or alternatively
(ii)suspended upon the grant of the Lease for the duration of the Lease?”
Answer
“Strictly unnecessary to answer, but on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involve a presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease.”
2. The costs of the stated case be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 6043 OF 1998
BETWEEN:
MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN
APPLICANTAND:
DOUGLAS WILSON
FIRST RESPONDENTSTATE OF NEW SOUTH WALES
SECOND RESPONDENTNEW SOUTH WALES ABORIGINAL LAND COUNCIL
THIRD RESPONDENTJUDGES:
BLACK CJ, BEAUMONT & SACKVILLE JJ
DATE OF ORDER:
5 APRIL 2000
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
BLACK CJ AND SACKVILLE J:
Beaumont J has set out the nature of the proceedings in this Court, the questions for separate determination and the agreed facts. His Honour has also outlined the relevant provisions of the Western Lands Act 1901 (NSW) (“WLA”) at the material time and the terms of the lease granted under the WLA in 1955 (“the Lease”). WE gratefully adopt what his Honour has said on these matters.
For convenience, we reproduce the questions for separate determination:
“(a) By virtue only of:
(i) the Western Lands Act 1901 (NSW); and
(ii)the regulations thereunder, as in force at the time of the grant of the lease;
did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?
(b) If the answer to the question (a) is “No”, by virtue of:
(i) the Western Lands Act 1901 (NSW);
(iv)the regulations thereunder, as in force at the time of the grant of the Lease; and
(v)one or more of the terms and conditions of the Lease;
did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?
(c)If the answer to question (a) or question (b) is “Yes”, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:
(i) extinguished by the grant of the Lease; or alternatively
(ii)suspended upon the grant of the Lease for the duration of the Lease?”
The Lessee’s Submissions
The first respondent (“the Lessee”) submitted that the Lease conferred a right to exclusive possession of the subject land (“the Leased Land”) from the date it took effect. (It was common ground that nothing turned on the fact that the Lease was executed on 11 January 1955 but was expressed to take effect as from 31 August 1953.) It was said, therefore, that the Lease extinguished any accessorial native title rights that otherwise might have existed over or in respect of the Leased Land. It followed, according to the Lessee, that either question (a) or (b) and question (c)(i) should be answered: “Yes”.
Mr Sullivan QC, who appeared with Mr Emmerig for the Lessee, adverted to the alternative possibility that question (c)(ii) (referring to the suspension of native title rights) might be answered affirmatively. However, it is fair to say that this alternative was not pressed.
The starting point for the Lessee’s argument was the proposition that the power to grant a lease conferred by the WLA must be presumed to refer to an interest having the incidents of a common law lease, including the right to exclusive possession, subject only to modifications required or permitted by the WLA. Mr Sullivan contended that substantial weight should be given to the common law meaning of the word “lease” when used in a statute. Alternatively, he argued that the Lease itself was to be construed as using the word in its common law sense, with the consequence that the original lessee acquired the right to exclusive possession and that any native title rights over the Leased Land were extinguished.
The Lessee recognised that in order to secure an affirmative answer to the questions raised for separate determination, it would be necessary to distinguish the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 (“Wik”). In that case, it will be recalled, a majority of the Court held that the so-called Holroyd River and Mitchellton Pastoral leases granted under Queensland law did not necessarily extinguish all incidents of native title claimed by the Wik and Thayorre Peoples over the leasehold lands.
The Lessee argued that the terms of both the WLA and the Lease were materially different from the legislation and leases considered in Wik. According to Mr Sullivan:
(i)the WLA and the Lease did not include provisions corresponding to those that, according to the majority of the High Court, counted against the Wik leases being held to confer rights of exclusive possession;
(ii)the WLA and the Lease contained no other provisions negating an intention to confer rights of exclusive possession; and
(iii)certain provisions in the WLA and the Lease confirmed that the Lease was intended to confer rights of exclusive possession.
The following matters were said to substantiate the first proposition (although some were also said to be relevant to the other propositions):
· The Land Act 1910 (Qld) (“the Land Act”), the principal enactment considered in Wik, devoted a separate Division to pastoral leases. This (so it was said) added force to the contention in that case that the pastoral leases were special statutory interests, distinct from common law leases. By contrast, leases under the WLA were granted under a single power, namely that granted by s 23 of the WLA, and were all intended to confer rights of exclusive possession on lessees.
· The Land Act specifically provided that pastoral leases were to vest in the lessees at the time of the grant, thereby displacing the common law rule that a lease vests only upon entry into possession. The WLA contained no equivalent provision.
· The Land Act blurred the distinction between leases and licences, suggesting that in Queensland a pastoral lessee (like a licensee) did not acquire rights of exclusive possession. By contrast, the WLA (reflecting the history of Crown lands legislation in New South Wales) carefully distinguished between leases and licences.
· The Land Act provided for the Crown to take proceedings against persons in unlawful occupation of land subject to a pastoral lease (provisions taken as supporting the proposition that a pastoral lease did not have rights to exclusive possession). The WLA contained no equivalent provisions.
· The forfeiture provisions in the Land Act were different from those in the WLA.
· The reservations specified in the WLA and in the Lease itself in favour of the Crown and third parties were narrower than those applying to the Wik leases. The former were consistent with the grant of a right to exclusive possession; the latter were not.
· The Land Act conferred a positive power to transfer or assign pastoral leases, while the WLA merely assumed that there was such a power (suggesting that Parliament assumed that a lease under the WLA was in the nature of a common law lease).
· The Wik leases were granted over very large areas of land. The Lease, by contrast, was over a smaller area, reflecting the fact that the lessee was obliged to live on and work the Leased Land.
The second and third propositions were said to be supported by the following:
· The Lease (like the Wik leases) contained no reservation of indigenous rights over the Leased Land.
· The Lease was granted in perpetuity, suggesting that any native title rights were extinguished, not merely suspended. In this respect, it differed from the Wik leases which were each for a term of thirty years.
· The WLA, as a matter of construction, was intended to authorise leases conferring rights of exclusive possession. In particular, the WLA provided for detailed developmental and improvement conditions to be included in leases. Provisions of this kind (which were reflected in the conditions in the Lease itself) tended to confirm that the Lease granted rights of exclusive possession. So, too, the statutory requirement that a condition of residence attach to every lease granted under the WLA strongly suggested that the Lease was intended to confer rights of exclusive possession.
The Native Title Act
The questions for separate determination make no reference to the Native Title Act 1993 (Cth) (“NTA”). There was some disagreement between the Lessee and the other parties as to the significance of the NTA for the present proceedings. In order to resolve this disagreement it is necessary to summarise the provisions of the NTA which confirm the extinguishment of native title.
Part 2, Div 2B of the NTA provides for the confirmation of extinguishment of native title by what is described as a “previous exclusive possession act”. According to the Explanatory Memorandum to the Native Title Amendment Bill 1997, Div 2B is intended to confirm the effect on native title of various types of Commonwealth acts done prior to 23 December 1996, and to permit the States and Territories to confirm the effect of acts done by them prior to the same date (par 5.1). The Explanatory Memorandum states that this aspect of the legislation reflects the Government’s understanding of the common law of native title after the decision in Wik.
Section 23B of the NTA defines “previous exclusive possession act” as follows:
“(2) An act is a previous exclusive possession act if:
(a)it is valid…;
(b)it took place on or before 23 December 1996; and
(c)it consists of the grant or vesting of any of the following:
(i)a Scheduled interest (see section 249C);
…
(iv)…an exclusive pastoral lease (see section 248A);
…
(viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.”
A “Scheduled interest” includes the leases or categories of leases specifically identified in Schedule 1 to the NTA: see s 249C. Schedule 1 identifies certain categories of leases granted pursuant to the WLA, such as a lease under s 23 of the WLA that permits the lessee to use the land solely or primarily for agriculture or for agriculture and grazing combined: Schedule 1, Part 1. However, Schedule 1 does not incorporate leases granted under the WLA solely for grazing purposes. Thus the Lease the subject of the present case is not included in Schedule 1.
The Explanatory Memorandum states (par 36.2) that Schedule 1 to the NTA includes
“leases and other interests…which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession on the grantee and have therefore extinguished native title. The Schedule principally contains specific types of residential, commercial, community purpose and agricultural leases. The Government’s policy is to ensure certainty with regard to those interests in the Schedule.”
The Explanatory Memorandum recognises that the effect of pastoral leases, such as those for grazing purposes only, must be resolved by the courts (par 36.14).
The expression “pastoral lease” in the NTA is defined to include a lease that permits the lessee to use the leasehold land solely or primarily for maintaining or breeding sheep, cattle or other animals, or for any other pastoral purpose: NTA, s 248. An “exclusive pastoral lease” (the expression used in s 23B(2)(c)(iv)) is defined to mean
“…a pastoral lease that:
(a)confers a right of exclusive possession over the land…covered by the leases; or
(b)is a Scheduled interest” (s 248A).
Section 23C of the NTA provides that where an act is a “previous exclusive possession act” under s 23B(2) and is attributable to the Commonwealth
“(a)the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and
(b) the extinguishment is taken to have happened when the act was done.”
The grant of a lease under the WLA is not, of course, an act attributable to the Commonwealth. However, the NTA also provides for confirmation of extinguishment of native title by previous exclusive possession acts of a State or Territory. Section 23E of the NTA states that, subject to certain presently immaterial conditions, the law of a State or Territory
“may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.”
Part 4 of the Native Title (New South Wales) Act 1994 (NSW) (“NTA (NSW)”) was enacted by the Parliament of New South Wales pursuant to the authority conferred by s 23E of the NTA. The objects of Part 4 are, inter alia, to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State: NTA (NSW), s19(1)(a). The confirmation is said to be that contemplated by s 23E of the NTA.
Section 20 of the NTA (NSW) mirrors the terms of s 23C of the NTA. Section 20(1) is in the following terms:
“(1)If an act is a previous exclusive possession act under section 23B(2)… of the Commonwealth Native Title Act and is attributable to the State:
(a)the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and
(b)the extinguishment is taken to have happened when the act was done.”
Significance Of The Legislation For The Questions
The parties differed as to the significance of the legislative scheme contained in the NTA. Mr Sullivan founded the submissions on behalf of the Lessee on general law principles governing the extinguishment of native title. According to Mr Sullivan, the Lease granted in 1955 conferred exclusive possession on the Lessee’s predecessor in title. It followed that, in accordance with the principles formulated and applied by the High Court in Wik and Fejo v Northern Territory (1998) 195 CLR 96, any native title rights in the leasehold area had been extinguished. There was simply no occasion to have recourse to the provisions of the NTA or the NTA (NSW). Native title rights in the Leased Land had been extinguished long before the NTA had come into force.
Mr Sullivan pointed out that the NTA contemplated that extinguishment of native title could take place otherwise than under the Act itself. Section 23J(1), for example, entitles native title holders to compensation in accordance with Div 5 of Part 2 for any extinguishment under Div 2B of their native title rights and interests, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under the NTA. Mr Sullivan contended that the explicit statutory recognition that native title could be extinguished under the general law meant that the separate questions could be answered without any need to consider the operation of Div 2B of Part 2 of the NTA.
Mr Basten QC, who appeared with Mr Blowes for the third respondent (“the Council”), submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA. He accepted that the NTA did not constitute a code in relation to extinguishment. Nonetheless he argued that the legislation was
“intended to provide a comprehensive statement of as many circumstances which might involve extinguishing acts as possible, and to provide for their legal effects.”
Mr Basten appeared to accept that under both the statutory scheme and the common law, the question was whether the Lease conferred a right of exclusive possession over the land. He also appeared to accept that this question was to be answered by reference to common law principles. Thus, on his submissions, the application of the NTA (and the NTA (NSW)) did not have any significant practical consequences, other than that the questions for determination should have explicitly referred to the legislation and, in particular, to the statutory concept of a “previous exclusive possession act”.
In our view it is clearly correct, as Mr Sullivan submitted, that the NTA contemplates that native title rights in respect of particular land might have been extinguished prior to the commencement of the legislation, independently of the regime established by Part 2, Div 2B of the NTA. In the Native Title Act Case (Western Australia v The Commonwealth (1995) 183 CLR 373) the joint judgment observed (at 454) that an act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the NTA. While that observation was made before the enactment of Div 2B of Part 2, it remains true: Western Australia v Ward [2000] FCA 191, at [77]. Indeed, native title over much of the settled land mass of Australia has been extinguished in this manner. Thus the ultimate issue to be resolved in these proceedings is whether any native title rights that might exist in respect of the Leased Land were extinguished by the grant of the Lease in 1955. The resolution of this issue depends on the application of general law principles of extinguishment of native title.
The separate questions do not explicitly state whether the question of extinguishment in the present case is to be addressed by reference to the general law principles expounded in Mabo v Queensland (No 2) (1992) 175 CLR 1, Wik and Fejo, or to the statutory concept of “previous exclusive possession act”, or both. To this extent it may be said that the questions are ambiguous. However, an ambiguity of this kind does not present an obstacle to the Court addressing the core issue raised by the parties. It was common ground that the Lessee’s case had to stand or fall on the general law principles governing extinguishment of native title. While Mr Sullivan adverted to the possibility that the Lessee might be able to rely, as an alternative argument, on the confirmation of extinguishment of title effected by the NTA, he did not suggest that the statutory criteria for extinguishment were any different, for the purposes of this case, from the general law criteria. Certainly, the argument focussed exclusively on the general law principles of extinguishment.
There is no occasion in this case to consider the precise relationship between the rules embodied in the NTA governing “confirmation of past extinguishment of native title” and the general law principles of extinguishment of native title. It is enough to note that, despite the terminology employed in Part 2, Div 2B of the NTA, the effect of Div 2B is not necessarily simply to confirm instances of extinguishment of native title that have already taken place under the general law. For example, it is possible that some of the leases, or classes of leases, specified in Schedule 1 to the NTA (all of which, by virtue of s 23B(2), constitute “previous exclusive possession acts”) would be found, on general law principles, not to have completely extinguished native title. If that is so, the inclusion of these leases in Schedule 1 simply reflects the fact that Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts. (Compare the effect of the recital to the preamble to the NTA which was said in Wik to have read too much into the judgments in Mabo [No 2]: Wik, at 125, per Toohey J.)
Form Of The Questions
The identification of separate questions for determination pursuant to O 29 r 2 of the Federal Court Rules, can be a convenient procedure, and, in some circumstances, can avoid unnecessary delay and expense in the resolution of proceedings. But there are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations.
The reason for formulating questions for separate determination in the present case was explained by Mr Sullivan at a directions hearing. At that hearing, the Judge managing the proceedings (Beaumont J) drew to the attention of the parties observations made by Gummow J in Yanner v Eaton (1999) 166 ALR 258, concerning the importance of factual findings in native title claims. Gummow J said this (at 288-289):
“Before turning to whether inconsistency arose in the present appeal, it is important to clarify the utility of factual findings. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it.”
Beaumont J invited the parties to reconsider the procedure adopted in the present case in view of these comments.
At the directions hearing, Mr Sullivan acknowledged the force of the observations of Gummow J in Yanner, but justified the separate question procedure as a “short cut” designed, depending on the outcome, “to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry”. He pointed out that the questions in this case had been framed having regard to the procedure followed in Wik. In that case, the High Court answered questions asked in relation to the effect of the so-called Holroyd River and Mitchellton Leases on the native title rights of the Wik and Thayorre Peoples.
It is true that the questions in the present case follow reasonably closely the form of the questions asked and answered in Wik. Questions (a) and (b), for example, ask whether the Lease conferred a “right to exclusive possession of the leased land”. These questions are very similar in form to two of the questions (Questions 1B(b) and 1C(b)) asked in Wik.
Question 1B(b) in Wik was as follows:
“If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease):
…(c)does the pastoral lease confer rights to exclusive possession on the grantee?”
The majority answered this question (and the equivalent in relation to the Mitchellton Leases): “No”: see Wik, at 261-262.
Question (c) in the present case is asked on the assumption that an affirmative answer is given to either question (a) or (b). It asks, inter alia, whether any native title rights were extinguished upon the grant of the Lease. This question is similar to Questions 1B(d) and 1C(d) in Wik, which asked whether, on certain assumptions, the grant of the various pastoral leases
“necessarily extinguish all incidents of Aboriginal title or possessory title of the [Aboriginal] Peoples in respect of the land demised…?”
The majority in Wik answered the questions in this form: “Strictly does not arise, but is properly answered No”: see Wik, at 261-263.
Despite the similarity of the questions in the present case to those in Wik, it is important to appreciate the difficulties created by the procedure that has been adopted. In Wik itself, some members of the majority expressed reservations about the procedure the Court was asked to follow. Toohey J saw (at 116)
“the basic question [as] whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished.”
His Honour (at 131) went on to criticise the questions that had been asked:
“[The questions] are not happily framed, with their emphasis on whether the grant of each pastoral lease ‘necessarily’ extinguished ‘all incidents of Aboriginal title’ of the Wik Peoples and the Thayorre People, an aspect that only arises if in each case the pastoral lease conferred ‘rights to exclusive possession on the grantee’. The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights…. Indeed, the questions framed by reference to ‘exclusive possession’ tend to obscure what is the critical question, that of extinguishment. Nevertheless, the questions should be answered as best they can.”
Gummow J expressed the view (at 204) that Questions 1B(b) and 1C(b), by focussing on whether the pastoral leases conferred rights to exclusive possession, “may have distorted the essential issues”. His Honour considered that Questions 1B(d) and 1C(d), relating to extinguishment of native title, “should have stood independently for decision”. Nonetheless he, too, was prepared to join in answering the questions that had been asked. See also the comments of Kirby J, at 212-213.
The procedure adopted in the present case presents difficulties similar to those identified in Wik.
First, no findings have as yet been made concerning the content of native title that may exist in respect of the Leased Land. It must be remembered that native title has its origins in the traditional laws and customs observed by indigenous people: Mabo (No 2), at 58, per Brennan J. Native title is recognised by the common law but is neither an institution of the common law nor a form of common law tenure: Fejo, at 128. Consequently, as Gummow J said in Wik, the nature and incidents of native title will vary from case to case (at 169):
“It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence.” (Footnotes omitted.)
In the Croker Island Case (The Commonwealth v Yarmirr (1999) 168 ALR 426 (FC)), Beaumont and von Doussa JJ observed, at 435, that native title is “highly fact specific”: that is, the existence and content of native title are questions of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis. It follows in the present proceedings that an affirmative answer to question (c)(i), which would effectively resolve the proceedings in favour of the Lessee, cannot be given unless all possible native title rights in respect of the Leased Land were extinguished by the grant of the Lease. As Wik demonstrates, this may prove to be a heavy burden for the Lessee to discharge in the absence of evidence as to the content of native title or an act manifestly inconsistent with all native title rights, such as the grant of a fee simple estate.
Secondly, as explained by Toohey and Gummow JJ in Wik, questions framed by reference to rights of exclusive possession are apt to divert attention from the critical question. That question, to adopt the language of the joint judgment in Fejo (at 126) is whether
“the rights that are given [by the Lease] are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title.”
It is understandable that the separate questions should have been drafted so as to ask whether the Lease conferred a right to exclusive possession on the Lessee’s predecessor in title. The language of exclusive possession is found in Mabo (No 2): at 110, per Deane and Gaudron JJ. Moreover, the questions in Wik were framed by reference to “rights to exclusive possession”. Perhaps for this reason, despite the express reservations of Toohey and Gummow JJ and despite the ambiguity inherent in the concept, much of the reasoning in Wik uses the terminology of “exclusive possession”. And Parliament has followed suit, incorporating “exclusive possession” into the definitions giving content to the expression “previous exclusive possession act” in s 23B of the NTA. Even so, for the reasons given by Toohey and Gummow JJ, there are dangers in elevating the question whether the Lease conferred a right to exclusive possession into an issue requiring separate determination.
Under the general law, a legal right of exclusive possession connotes a tenancy and is secured by the lessee’s right to maintain ejectment and, after entry, trespass: Radaich v Smith (1959) 101 CLR 209, at 222, per Windeyer J; Street v Mountfort [1985] AC 809, at 827, per Lord Templeman. But it is not necessarily easy or appropriate to apply a concept developed for one purpose (that is, distinguishing between a lease and a licence, usually in the context of commercial disputes) for quite a different purpose (determining whether the rights conferred on the holder of a statutory lease are inconsistent with the continued entitlement of Aboriginal people to native title rights). Particularly is this so when it is remembered that the common law accepts the idea of relative claims to possession, or relativity of titles: Asher v Whitlock (1865) 1 QB 1; Allen v Roughly (1955) 94 CLR 98; Mabo (No 2), at 207-211, per Toohey J. Under the general law, a person in possession of land can maintain an action against third parties, other than a person having a superior title. In short, exclusive possession of land does not necessarily connote rights good against all the world. It follows that to say a person has rights to exclusive possession does not necessarily demonstrate that that person is able to exclude all third parties from access to his or her land.
Thirdly, as Mr Basten pointed out, it is difficult in any event to see how question (a) can be answered affirmatively. In order to determine whether the rights given to the Lessee’s predecessor in title were inconsistent with the rights claimed by native title holders, it is necessary to have regard not merely to the WLA and the regulations thereunder, but to the terms and conditions of the Lease itself. This is not to say that the provisions of the WLA are irrelevant to the critical question that must be addressed. Far from it. But any assessment of the rights of the Lessee’s predecessor in title must take account of the terms of the Lease itself. We did not understand Mr Sullivan to contend otherwise.
History Of Crown Lands Legislation In New South Wales
The Significance of the History
The history of Crown Lands legislation in New South Wales has been closely analysed in a number of cases. For example, in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (the Government House Case), several of the judgments examined the history of land administration in the Colony prior to the conferral of responsible government by the New South Wales Constitution Act 1855 (Imp) (“Constitution Act”). See also Randwick Municipal Council v Rutledge (1959) 102 CLR 54, at 71 ff, per Windeyer J.
In Wik at first instance (Wik Peoples v Queensland (1996) 63 FCR 450, at 457ff), Drummond J considered in great detail the shifts in policy and legislation (both local and Imperial) governing the disposal of Crown lands prior to the establishment of Queensland as a separate Colony in 1859. His Honour undertook this task in order to deal with the applicants’ contention that an undertaking had been given before 1855, by or on behalf of the Crown, to preserve native title from extinguishment, and that this undertaking constituted a “promise or engagement” within the proviso to s 2 of the Constitution Act. Drummond J considered closely a series of memoranda and despatches in the mid to late 1850s, including several documents prepared by or endorsed by Earl Grey, then Secretary of State for Colonies (at 466-475), expressing views as to the effect of pastoral leases on the Aboriginal inhabitants.
When Wik reached the High Court, three members of the majority examined the history of pastoral leases in New South Wales. They did so, however, for a rather different purpose than Drummond J (there having been no appeal on the “promise or engagement” issue). Toohey J traced the history of pastoral leases in New South Wales prior to the establishment of Queensland as a separate colony (at 107-109). He cited views expressed by Earl Grey in 1848 and 1849, in the course of correspondence with Governor FitzRoy, as supporting the proposition that Aborigines were not to be excluded from land under pastoral occupation (at 119). Gaudron J undertook a similar historical analysis and concluded that Earl Grey’s views provided an indication of the nature of the estate or interest intended to be conferred by the grant of a pastoral lease (at 140-141). Kirby J, too, considered (at 227) that the contemporary communications by Earl Grey showed that, at least so far as the Imperial authorities were concerned, pastoral lessees were not intended to grant rights of possession to the exclusion of Aboriginal subjects of the Crown.
Gummow J, the fourth member of the majority, did not rely on any apparent contemporaneous recognition by representatives of the Imperial Government that the interests of Aboriginal inhabitants had survived a grant of pastoral leases. To the contrary, after referring to the legal framework in Canada, his Honour noted (at 182) the absence in Australia of “any established taxonomy to regulate such uses of history in the formulation of legal norms”. He continued as follows (at 183):
“Even if any such taxonomy were to be devised, it might then be said of it that it was but a rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts.”
The written submissions of the parties canvassed in some depth the history of Crown lands in New South Wales, both before and after 1855. According to the Lessee, the history demonstrated that the legislation in New South Wales, from the 1830s on, had clearly distinguished between leases and licences of Crown land. The former carried with them (and were understood by contemporary commentators to carry) rights of exclusive possession that would prevail against Aborigines seeking to gain access to the lands. Licences, on the other hand, were not intended to confer rights of exclusive possession. This was said to strengthen the contention that grazing leases granted pursuant to the WLA were intended, like their predecessors, to confer rights of exclusive possession on the lessees.
Indeed, the Lessee’s submissions went further. Mr Sullivan criticised the reliance placed by the majority in Wik on the views expressed by Earl Grey. By reference to other contemporary documentation (all of which was before the High Court in Wik), Mr Sullivan submitted that Earl Grey’s opinions had not been shared by local Law Officers of the Crown or even by the Colonial Land and Emigration Office. He pointed, for example, to a letter from the Colonial Land and Emigration Office to the Permanent Under-Secretary (Herman Merivale), dated 17 April 1849, which clearly expressed the view that pastoral leases granted under the 1847 Order in Council gave an exclusive right of possession that would prevail against any third parties “whether Native or European”. (The letter was cited by Brennan CJ in his dissenting judgment in Wik, at 81.) Mr Sullivan invited us to take a different view of the significance of the historical material than that accepted by the members of the majority in Wik.
By contrast, the Council’s written submissions contended that the legislative history reinforced the view which prevailed in Wik, namely that the Colonial legislature and successive Governments had created new types of statutory leases, adapted to uniquely Australian conditions. The effect of these interests on native title could not be assessed merely by applying traditional common law principles. The Council endorsed the observations of A C Millard and G W Millard, The Law of Real Property in New South Wales (1905), quoted with approval by Gummow J in Wik, at 174-175:
“The whole of the numerous and elaborate provisions of the Acts for the alienation and occupation of Crown lands are examples of the legislation which has been necessary to meet the peculiar conditions and wants of the colony. Nothing corresponding to the body of laws thereby created is found in English law, there being nothing in England analogous to the vast area of unoccupied lands in this colony, of which the Crown is the nominal, and the public the real owner, the settlement of which is necessary to the welfare and progress of the country.”
In oral argument, Mr Basten departed from the approach taken in the written submissions on behalf of the Council and contended, in essence, that the history of Crown leases in New South Wales prior to the enactment of the WLA was largely irrelevant to the questions to be addressed in the present proceedings. This submission rested on the proposition that the decision in Wik required a comparison to be made between the terms of the Lease and any incidents of native title that might, but for the Lease, subsist in respect of the Leased Land. The fact that several members of the Court had relied on disputed historical materials in order to reach that conclusion was not to the point.
In our view, it is not necessary and not appropriate to attempt to pass judgment on the use made in Wik of the correspondence involving Earl Grey in order to shed light on the intended effect of pastoral leases on Aboriginal inhabitants of New South Wales. We accept that there has been criticism levelled at the use in Wik of Earl Grey’s views, as expressed in his correspondence with Governor FitzRoy. The historical significance of that correspondence raises complex issues on which professional historians have expressed sharply divergent views. One commentator has argued, for example, that the historical analysis used to support the majority view in Wik was incomplete and at variance with other scholarly accounts or interpretations of the relevant events: J Fulcher, “Sui Generis History? The Use of History in Wik” in G Hiley (ed) The Wik Case: Issues and Implications (Butterworths 1997), at 51-56; cf H Reynolds and J Dalziel, “Aborigines and Pastoral Leases – Imperial and Colonial Policy 1826-1855” (1996) 19(2) UNSWLJ 315. Perhaps issues of this kind were what Gummow J had in mind when he expressed, in the passages we have cited, reservations about the use of history as a foundation for the resolution of present conflicts.
The simple fact is that the majority decision in Wik is binding on this Court. Our task must be to apply the principles enunciated in Wik to the present case and, in particular, to the Lease granted pursuant to the WLA. Even if the criticisms of the use made of Earl Grey’s correspondence by the majority were thought to be well-founded, that would not affect the authority of Wik. We would therefore decline the Lessee’s invitation to re-examine and reassess the historical material before the High Court in Wik.
This conclusion does not mean that the history of Crown leases in New South Wales, in particular the legislation preceding the enactment of the WLA in 1901, should be ignored. At the very least, it sheds light on the scheme introduced by the WLA and the reasons for it. While the account that follows is necessarily sketchy, it reinforces the relevance of the fundamental point made in Wik to leases granted pursuant to the WLA. If ever there were a case of legislation adapted to the “peculiar conditions and wants” of a geographic area, the legislation governing the grant of leases in what ultimately became the Western Division of New South Wales would seem to be it.
Crown Lands Prior to Responsible Government
Until 1831 full power of disposal of lands within the Colony of New South Wales was vested in the Governor, to be exercised in accordance with instructions issued by the Colonial Office: Wik (Drummond J), at 458. In 1826, a scheme was introduced involving the establishment of the so-called “limits of location”. Within those limits, the declared boundaries of settlement, persons wishing to select land could do so with official sanction. Beyond those limits (initially comprising nineteen counties) settlers were in theory not permitted to occupy lands: id, at 459. Local regulations, made in 1831 under the prerogative power, introduced a system of disposal of Crown lands by public auction, both by way of lease and sale.
By the 1830s squatters occupied large tracts of land to run cattle and sheep without official sanction. The limits of location were extended, but the problem remained: S H Roberts, History of Australian Land Settlement (1788-1920) (Macmillan, 1924), at 176-177. This prompted the Colonial Government to introduce a system of annual occupation licences for lands outside the limits of location. Legislation enacted in 1836 (Crown Lands Unauthorized Occupation Act 1836 (NSW)), made it unlawful for any person to occupy Crown lands beyond the limits of location without a valid depasturing licence and imposed penalties for the unauthorized occupation of Crown lands within the limits. That legislation was re-enacted in 1838 and 1839.
The new controls did not resolve the difficulties created by the squatters. They demanded greater security of tenure, thrusting the colony into “an indescribable ferment”: S H Roberts, at 179. According to Mr Sullivan, the significance of the 1830’s legislation lay not in the political controversy it generated, but in the distinction drawn between leases and licences of Crown lands. For example, the Crown Lands Unauthorized Occupation Act 1839 (which established a Border Police force to protect persons lawfully occupying Crown lands beyond the limits allotted for location) rendered unlawful the occupation of Crown Lands without a “valid lease or licence” for depasturing cattle or other animals. The legislation generally imposed “fees” in respect of licences and required “rent” to be paid in respect of leases. The distinction between fees and rent was carried through into the WLA.
Another local enactment, the Crown Lands Unauthorized Occupation Act 1841 (NSW) (“the 1841 Act”), s 2, provided that no action for trespass could be brought by a person in occupation on sufferance or by virtue of a licence. According to Mr Sullivan, the importance of the 1841Act lay in its failure to prevent a lessee from bringing an action for trespass against a third party. This, so he argued, tended to confirm that a lessee of Crown lands was intended to have rights of exclusive possession.
The disposal of land in the Australian Colonies became subject to a statutory regime established by the Imperial Parliament with the enactment of the Sale of Waste Lands Act 1842 (Imp). The economic and social objectives of the legislation are referred to in Wik (Drummond J), at 461. The Sale of Waste Lands Act, although establishing a regime for the sale of Crown lands, expressly stated that it was not to prevent the grant of annual occupation licences (s 17). It did not expressly provide, however, for leases of Crown lands.
This omission was rectified by the Sale of Waste Lands Amendment Act 1846 (Imp) (“the 1846 Act”) which, as Drummond J noted in Wik, was passed following agitation by pastoralists for greater security of tenure (at 465). Section 1 authorised the Crown “to demise for any Terms of Years not exceeding Fourteen” any waste lands of the Crown. Section 6 of the 1846 Act authorised the making of Orders in Council for the purposes of the legislation, including division of the Colony into districts.
An Order in Council under the 1846 Act was made on 9 March 1847. Chapter I classified lands in the Colony of New South Wales as being in the “settled”, “intermediate” or “unsettled” districts. Chapter II, which dealt with the unsettled districts, authorised the Governor to grant leases of land, for a term not exceeding fourteen years in duration, for pastoral purposes (Ch II, s 1). The “rent” payable in respect of such leases was to be proportionate to the assessed carrying capacity of the land (Ch II, s 2). The Order in Council reserved to the Governor the power to make grants or sales of land within the limits of lands comprised in a lease for public purposes or disposing of such lands “as for the public interest may seem best”, including “for the use or benefit of the aboriginal inhabitants of the country” (Ch II, s 9).
An Order in Council made on 18 July 1849 and proclaimed by Governor FitzRoy on 23 April 1850, empowered the Governor to insert in any future “pastoral lease” such conditions, clauses of forfeiture, exceptions or reservations deemed requisite
“for securing the peaceable and effectual occupation of the lands comprised in such leases, and for preventing the abuses and inconveniences incident thereto”.
Thereafter, the practice in the Colony was to include a specific reservation in favour of Aboriginal people in leases of unsettled or intermediate land for pastoral purposes. The reservation was in the following form:
“We do further Reserve to the Aboriginal Inhabitants of Our said Colony, such free access to the said Run or Parcel of Land hereby demised, or any part thereof, and to the trees and water thereon as will enable them to procure the Animals, Birds, Fish, and other food on which they subsist.”
See forms of lease of Crown land in Progress Report from the Select Committee on Crown Lands, Votes and Proceedings, Legislative Council, 9 November 1854.
Crown Lands After Responsible Government
Until responsible government was bestowed on the Colony of New South Wales in 1855, the Imperial Government retained ultimate control and management of the Colony’s waste lands. This situation changed with the enactment of the Constitution Act, s 2 of which vested in the Colonial legislature the management and control of waste lands. Section 1 of the Australian Waste Lands Act 1855 (Imp), enacted at the same time as the Constitution Act, repealed the Sale of Waste Lands Acts of 1842 and 1846.
The first local enactment dealing with leases of Crown lands, following passage of the Constitution Act, was the Crown Lands Occupation Act 1861. The Crown Lands Alienation Act 1861 (NSW), passed on the same day, provided for the alienation of Crown lands in fee. These enactments repealed the earlier Orders in Council.
The Crown Lands Occupation Act 1861 classified Crown lands into the First and Second Class “Settled Districts” and the “Unsettled Districts” (ss 1, 11). Crown lands in the First Class Settled Districts could be “demised by lease” for pastoral purposes for one year (s 11). In other Districts the maximum term for a pastoral lease was five years. Leases could be granted for other specified purposes, including mining (other than for gold), for terms up to fourteen years (s 11). The Governor in Council was empowered to withdraw from any land comprised in a lease areas required “for any public purpose whatsoever” (s 5). Similarly, the Governor in Council could insert in leases a condition enabling land subject to the lease to be resumed without compensation (except for a proportional rebate of rent) for any public purpose (s 13(5)). Leases were subject to rights of access by third parties, such as persons authorised to search for minerals or to remove indigenous timber (s 8). The same Act provided for an offence of occupying or working Crown land otherwise than under a subsisting lease or licence (s 33). The provisions governing the grant of licences required the payment of a licence “fee” (s 31), while those governing the granting of leases required the payment of “rent” (ss 12, 13).
In 1883, the report of a Parliamentary Inquiry into the state of public lands in New South Wales was published: New South Wales Legislative Council, Report of Inquiry: State of the Public Lands and the Operation of the Land Laws (1883) (“the Public Lands Report”). The Public Lands Report considered the operation of land laws throughout New South Wales and took a good deal of evidence While it made no recommendations, the report was influential in the framing of the Crown Lands Act 1884 (NSW), described by Professor Lang as
“the first systematic Crown land legislation, purporting to set out in some order a series of tenures over Crown land”.
See A G Lang, Crown Land in New South Wales (Butterworths, 1973), at 11.
The Public Lands Report divided New South Wales into three parts. Division 1 corresponded to the Old Settled Districts and comprised about 26 million acres, with a population of 506,181. Division II was the central area, the westerly limit of which was an irregular line stretching from the intersection of the Barwon River and the Queensland border to the confluence of the Murrumbidgee and the Murray. It comprised about 86 million acres and had a population of 223,560. Division III, the forerunner of the Western Division, embraced the remainder of the Colony west of the western boundary of Division II. Division III contained 83,779,760 acres and was said to have a population of 18,500 (presumably excluding indigenous inhabitants). Of that population, 6,696 resided in towns and 11,804 in rural districts.
The Public Lands Report’s principal theme was “the class contest for the possession of [the Colony’s] lands” (at 28). By this colourful description the authors meant to refer to the contest between selectors (including pastoral lessees) and squatters, a contest which had been exacerbated by the practice of offering for sale to one class of occupants land simultaneously assigned under lease to another (at 13). The situation had led to “discord and chicanery”, to the detriment of the beneficial management of Crown lands. The Public Lands Report did not address the effect of the class contest, or of the land laws, on the Aboriginal inhabitants of the Colony.
According to the Public Lands Report, the antagonism between lessees and selectors had not been as disastrous in Division III as in Division II. This was because in Division III (at 23)
“…nature has presented an obstructive barrier to the beneficial occupation of the land in small areas. The sparse vegetation, the arid soil, and the waterless character of the country, consequent on the deficient rainfall, have protected the Crown lessees to a great extent from invasion by conditional purchasers, even for the purposes of blackmailing, but it depends on time only, if the present Land Laws remain on the Statute-book, when the bitter strife and terrible waste of human energy which are the characteristics of settlement in the inner division will commence in full force.”
In its Synopsis of Evidence, the Public Lands Report described the state of land settlement in the Warrego District (an area which includes the land subject to the Lease) (at 65):
“The occupation of the country is mainly by the pastoral tenants. The average size of the stations is fully 400 square miles, or about 250,000 acres. Most of these leaseholds are partly stocked, some are waiting the completion of works for water supply. There are few cattle; the universal stock consists of sheep, and the district is much understocked yet. The lessees have reclaimed large tracts by substantial works, especially dams and tanks. The runs as watered have been enclosed, subdivided by substantial fencing, and home stations constructed, all these improvements being directed to the remunerative occupation of the country.
…water is the key to the successful occupation of this country, and the reclamation of this great and valuable tract by the Crown tenants on the basis of their leasehold tenure presents a problem that demands much consideration. The privilege held by the conditional purchaser of appropriating leasehold land though watered by the lessee’s outlay and exertion, involves peril for public as well as private interests.”
The principles underlying the Crown Lands Act 1884 (NSW) (the “1884 Act”), in its application to the Western Division (as the equivalent to Division III became known), were stated by the Secretary for Lands as follows (New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 1883, at 43-44; 7 November 1883, at 351-353):
· all previous Crown leases legislation was to be repealed;
·the Colony was to be divided into three parts: the Western, Central and Eastern divisions;
·the Western Division was to be purely pastoral and would be subject only to leases;
·half of the existing runs would be resumed and open to conditional leasehold or homestead leasehold (the latter having a maximum area of 10,280 acres) in order to provide an opportunity for “young men…to settle upon the land, and to make a sheep farm”;
·a current lessee would be able to retain a lease over half of the run (and to secure an extension of the term of the lease) and to occupy the remaining half under licence until it was leased; and
·the administration of the legislation was to be decentralised by devolving authority to local land boards.
The 1884 Act gave effect to those principles. It is not necessary to examine the legislation in detail. However, some features should be noted.
First, the 1884 Act created new forms of tenure in addition to those recognised under the earlier law. For example, the Act created homestead leases (ss 82-84), annual leases for pastoral purposes (s 85) and scrub land leases (s 87). Amending legislation introduced yet further variations, such as inferior lands leases (Crown Lands Act 1889 (NSW), s 37) and improvement leases in respect of lands not suitable for settlement until improved (Crown Lands Act 1895 (NSW), s 26).
Secondly, the 1884 Act specified the conditions to which particular leases were to be subject. Pastoral leases in the Western Division, for example, were to be for a term of fifteen years from the date of determination of the existing lease; rental was to be assessed by a local land board; pastoral lessees were to be entitled to an additional term of the lease, subject to a contrary determination by the Minister; and the Governor could withdraw from a lease land required for any public purpose (s 78). Homestead leases in the Western Division were to be between 5,760 and 10,240 acres (between nine and sixteen square miles); they were to have a term of fifteen years, with the same rights of extension as pastoral leases; they were subject to the same provisions as to rent, forfeiture and surrender as pastoral leases; and a homestead lessee was to reside on the land for at least six months during each of the first five years of the lease (a provision designed to avoid the practice of “dummying”) (s 82).
Thirdly, the 1884 Act set out general provisions affecting leases. Thus, every lease was liable to forfeiture for non-payment of rent or breach of any condition annexed to the lease (s 96). Some provisions, such as that denying power to prevent the entry and removal of material by authorised persons, applied both to leases and licences (s 98). The Governor retained a general power to withdraw from lease or licence any land required for any public purpose (s 108).
Western Lands Act
Beaumont J has explained the background to the enactment of the WLA in 1901, including the work of the Royal Commission to Inquire into the Condition of Crown Tenants (Western Division of New South Wales). His Honour has also explained the background to the principal amendments to the WLA effected in 1932 and 1934. There is no need for us to repeat this material.
Reasoning
The Principles
We have referred earlier to the difficulties created by the form of the questions in the present case. As we have explained, the difficulties stem from the fact that the critical question is not whether, as an abstract proposition, the Lease conferred exclusive possession on the original lessee. It is whether the rights conferred on the lessee were inconsistent with any and all of the rights and interests which together make up such native title rights as may exist over the land. Thus in Fejo, the reason why native title was extinguished by the grant of the fee simple estate was that the holder of the fee simple estate was able to “use the land as he or she [saw] fit and [to] exclude any and everyone from access to the land”. In the absence of any qualification on the grant, it was inconsistent with the existence of any rights of native title over the land: Fejo, at 128.
Sovereignty carries with it the power to extinguish rights and interests in land within the sovereign’s territory, including native title: Mabo, at 53-64, per Brennan J. Whether or not the rights conferred by native title can be described as interests in land (cf Mabo (No 2), at 110, per Deane and Gaudron JJ), those rights can be terminated by inconsistent dealings with the land by the Crown. It is for this reason that the enjoyment of native title is said to be “precarious” under the common law (Native Title Act Case, at 452 (joint judgment)) or “inherently fragile” (Fejo, at 151, per Kirby J)).
Brennan CJ, in his dissenting judgment in Wik, identified three categories of laws or executive acts by which native title rights might be extinguished (at 84-85):
(i)laws or acts which simply extinguish native title;
(ii)laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and
(iii)laws or acts by which the Crown acquires full beneficial ownership of land subject to native title rights.
So far as the first category is concerned, a law or executive act which, although creating no rights inconsistent with native title, is claimed to extinguish native title, will not have that effect “unless there be a clear and plain intention to do so”: Wik at 85, per Brennan CJ, citing Mabo (No 2), at 64, 111, 196. Hence Toohey J in Mabo (No 2) observed (at 111) that general waste lands or Crown lands legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under native title. His Honour founded this observation on the principle that clear and unambiguous words must be used before the legislature will be taken to have expropriated or extinguished valuable rights relating to property without fair compensation.
So far as the second category is concerned, Brennan CJ observed (Wik, at 85) that a
“law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title”.
Yet, even in this situation, the exercise of power must be in terms that
“clearly, plainly and distinctly authorise[…]activities and other enjoyment of the land which [are] necessarily inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants”.
(Wik, at 171 per Gummow J, and see at 203); Yanner, at 289, per Gummow J; Croker Island, at 437, per Beaumont and von Doussa JJ).
In Croker Island, the majority judgment pointed out (at 438) that all members of the Court in Wik were in agreement as to the manner in which inconsistency is to be judged. The question is to be resolved as a matter of law by comparing the legal nature and incidents of the existing right and of the statutory right: Wik, at 185, per Gummow J. Kirby J in Wik (at 221) referred to this as the “inconsistency of incidence test”, which he described as follows:
“once the Crown’s ultimate or radical title was converted, by the exercise of sovereignty into an estate or interest in land, the question became whether that estate or interest, of its legal character, was inconsistent with the continuance of native title in the land. The question was not whether the estate or interest had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. The issue was one of legal theory, not detailed evidence.”
Of course, a test framed in these terms does not deny the need for a factual inquiry to ascertain the content of native title in a particular case in order to enable the required comparison to be made.
In Ward, Beaumont and von Doussa JJ (at [71]) identified the question to be addressed as follows:
“The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised…”
Subject to one qualification, what we shall describe as the inconsistency of incidents test enables a determination to be made as to whether inconsistency (and therefore extinguishment) occurs at the time of the grant of an interest: Croker Island, at 439 per Beaumont and von Doussa JJ. The qualification is that where a statute or a grant confers a power or condition to be exercised or performed in the future, the power or condition may have no immediate legal effect in terms of inconsistency. In such a case, extinguishment of native title will not occur unless and until the power is exercised or the condition satisfied: Wik, at 166, per Gaudron J; Croker Island, at 439. Gummow J in Wik held (at 203) that conditions in the pastoral leases which required the construction of earth dams and an airstrip did not of themselves abrogate native title. If extinguishment occurred it would only be by reason of the performance of the conditions. This kind of “operational inconsistency” (Wik at 203, per Gummow J; Croker Island, at 439) presents factual issues for resolution.
Until the recent decision of the Full Court in Ward, the question whether there can be “partial extinguishment” of native title rights had not been authoritatively determined. So far as this Court is concerned, however, Ward resolves the question. The joint judgment of Beaumont and von Doussa JJ reached this conclusion (at [109]):
“In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a ‘bundle of rights’. It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens ‘partial extinguishment’ occurs. In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. Further, it is possible that a succession of different grants may have a cumulative effect, such that native title rights and interests that survived one grant that brought about partial extinguishment, may later be extinguished by another grant."
The recognition that there can be partial extinguishment of native title is of some importance to the present case. It follows from what has been said that the Lessee can succeed in these proceedings only if he is able to demonstrate that the Lease, in accordance with the authority conferred by the WLA, granted rights necessarily inconsistent with all “species of native title” (Wik, at 203, per Gummow J) which might exist over the Leased Land. The fact that some native title rights were extinguished by the Lease would not require an affirmative answer to be given to the critical question in this case. Nor would it be enough that the conditions imposed by the Lease or the lessee would, when actually performed, extinguish other (or even all remaining) native title rights. In the absence of evidence that the conditions had been performed in a manner that extinguished remaining native title rights, it could not be concluded that all native title rights in respect of the Leased Land had been extinguished.
In Ward itself, the Court had the benefit of factual findings made by the trial Judge which identified the nature and extent of native title rights and interests in existence at the relevant dates. Beaumont and von Doussa JJ closely examined the extent to which those native title rights and interests were inconsistent with the terms of the various pastoral leases (which included specific reservations in favour of Aboriginal people). Their Honours concluded that, although the grant of pastoral leases had not completely extinguished native title rights and interests over the claimed lands, the leases had effected a partial extinguishment of native title rights and interests. In particular, the grant of pastoral leases had extinguished the exclusivity of native title rights to possess, occupy and use the claimed lands: see Ward, at [310], [329] and [340].
Since no factual findings have been made in the present case, a comparison of the kind undertaken in Ward cannot yet be carried out. The question at this stage of the proceedings is whether any of the claimed native title rights and interests that may have subsisted in relation to the Leased Land could have survived the grant of the Lease.
The Significance of Terminology
As we have pointed out, the starting point for the Lessee’s submissions was the contention that the word “lease”, when used in a statute such as the WLA, is presumed to refer to a lease with the incidents of a common law lease, including the right to exclusive possession. It is, however, difficult to reconcile this submission with the approach of the majority in Wik.
Toohey J pointed out (at 117) that the rights and obligations of a person holding an interest under legislation of the kind considered by Wik was “not disposed of by nomenclature”. While the authorities pointed to exclusive possession as a normal incident of a lease, they did not exclude “an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of lease” (at 118). His Honour distinguished a passage in the judgment of Brennan J in American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, at 686, suggesting the contrary, on the ground that Brennan J’s remarks were made in the context of a purely commercial transaction which did not involve the title of the Crown or native title rights.
Gaudron J was even more emphatic in rejecting the contention that the common law meaning of “lease” or “demise for a term of years” was to be applied to the Queensland legislation, even in a context where a distinction was drawn between a lease and a licence (at 151-152). Her Honour thought that there was “no very secure basis for thinking that pastoral leases owe anything to common law concepts”. Rather, they were statutory devices, deriving from the Order in Council of 9 March 1847, designed to suit the peculiar conditions of the Australian colonies. There was nothing to suggest that a right of exclusive possession was either a necessary or convenient feature of pastoral leases in the Colony of New South Wales.
Significantly for present purposes, her Honour considered that it was difficult to apply the principle that a statute should be construed in conformity with the common law in a context in which the word was used to refer to something “quite foreign to the common law conception of a lease” (at 153). Her Honour specifically had in mind the fact that the Land Act (like s 23 of the WLA), authorised the grant of a “lease in perpetuity”. This was an expression unknown to the common law and thus one which she considered could not possibly take its meaning from the common law. (At common law a lease must be for a term certain or capable of being rendered certain: Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386. Thus there cannot be a lease in perpetuity: see Wik, at 201, per Gummow J.)
Gummow J expressed the view (at 203) that the decision in American Dairy Queen was to be given limited scope. He agreed with Toohey J’s discussion of the case.
Kirby J, too, rejected the contention that the word “lease” and similar expressions in the Land Act were sufficient to import all of the features of a common law lease (at 245). The nature and effect of the lease was to be determined by examining the terms of the statute and the relevant instrument. He accepted that some of the features of an ordinary lease might be imported into the statute. But that fell
“a long way short of requiring that the title conferred by a pastoral lease upon the lessee to use the land ‘for pastoral purposes only’ be extended to exclude Aboriginals using the land in the traditional way.”
It follows from Wik that the references in the WLA to a “lease” do not necessarily refer to a lease in the common law sense of one conferring a right to exclusive possession, enforceable against all the world including holders of native title rights. A fortiori, this is the case with s 23(1)(a) of the WLA, which confers the power to grant “leases in perpetuity”. In applying the inconsistency of incidents test, the rights granted by the Lease are to be ascertained by a process of construction which does not assume that a WLA lease uses the term “lease” in its common law sense. The application of the test depends on an assessment of the rights intended to be created by the lease and a comparison between those rights and native title rights over the land. This is consistent with the approach taken by the majority in Ward at [285]-[288].
There is nothing in Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687, a case strongly relied on by the Lessee, that requires a contrary conclusion. It is true that McPherson is the only decision of an appellate court which has considered the nature of a perpetual lease under the WLA (although there are other appellate decisions dealing with the operation of the WLA in relation to perpetual leases: see, for example, Ex parte Hopkins; Re Cronin (1956) 57 SR(NSW) 554; Ex parte McDougall; Re Tully (1945) 45 SR(NSW) 188). It is also true that there are some observations which suggest, tentatively at least, that such a lease is to be regarded as a common law lease save as provided for in the legislation: McPherson, at 712-713, per Mahoney JA. But these tentative observations were made in a context very different from the present.
The issue in McPherson was whether a lessee under a perpetual WLA lease is precluded from seeking relief in the equitable jurisdiction of the Supreme Court against forfeiture of her lease. The contest was between the Minister, who had forfeited the lease, and the lessee, who had invoked the equitable jurisdiction of the Court to relieve against forfeiture. Native title rights were not involved. Kirby P, with whom Meagher JA agreed, decided the case on the principle that Parliament should be presumed to respect and conform to basic rights, including fundamental rules of equity (at 699-701). In his view, the “ancient and beneficial remedy” of relief against forfeiture could co-exist with the Minister’s statutory powers (at 703). The approach taken by Kirby P is not inconsistent with the conclusion that a perpetual lease does not necessarily confer rights on a lessee that extinguish all native title rights over the leased land: see Wik, at 197-198, per Gummow J; at 245, per Kirby J.
Mahoney J did not express a final opinion as to whether a lease in perpetuity should be regarded as having the incidents of a common law lease. He considered that even if the lease were regarded as a statutory right, deriving its force and content from the legislation, the WLA should be construed as implicitly recognising the applicability of the equitable doctrine (at 713). His judgment therefore does not support the conclusion that a lease in perpetuity under the WLA necessarily extinguishes all native title rights.
That leases under the WLA are not necessarily to be construed as having the same characteristics as common law leases receives support from the history of Crown leases legislation in New South Wales, especially after 1855. The legislation emerged as a response to the uniquely harsh physical and climatic conditions of the Western Division and to the difficulties experienced (and created) by European settlement. These difficulties included disputes between different classes of settlers, although the conflict between lessees and selectors was not as acute in what ultimately became the Western Division as it had been in other settled areas of the Colony. The various statutory interests created by the legislation, including grazing leases under the WLA, were designed to address the specific problems identified, particularly, by the Public Lands Report of 1883 and the Royal Commission report of 1901. Neither of these reports referred to the relationship between lessees and indigenous inhabitants. Whatever the historical reasons for this omission, it is difficult to view the 1884 Act or the WLA itself as directed to the extinguishment of such native title rights as might have existed over the sparsely settled areas of Western New South Wales.
Construction of the WLA
As we understood the Lessee’s argument, it included the contention that the WLA, as a matter of construction, contemplates only the grant of leases that confer on the lessee rights to exclusive possession which will necessarily extinguish any native title rights over the leasehold land. This submission must take account of the principles already discussed, namely:
· legislation is not to be construed as extinguishing or authorising the extinguishment of native title rights unless it clearly, plainly and distinctly has this effect;
· the justification for this principle of construction is that legislation is not lightly to be construed as expropriating or extinguishing rights in or over land recognised by the common law;
· legislation creating or authorising the creation of leasehold interests, such as the WLA is not necessarily to be construed as conferring rights of exclusive possession in the same sense as a common law lease, especially if the economic and social context of the legislation suggests otherwise;
· the law recognises the concept of partial extinguishment of native title rights (and thus acknowledges that the extinguishment of some native title rights does not necessarily entail the extinguishment of all native title rights); and
· the test is whether the legislation authorises the grant of rights that are necessarily capable of being exercised in a manner incompatible with the exercise of any native title rights that may exist in or over the land.
Apart from the matters to which we have referred, there are several powerful indications in the WLA itself that it does not have the effect claimed by the Lessee but that, on the contrary, it contemplates the grant of leases which do not necessarily extinguish all native title rights that may subsist over the Leased Land.
First, although the power to grant leases in perpetuity is expressed in general terms (s 23(1)), the WLA specifically provides for land to be set apart for the purposes of grazing (s 24(2)). It contemplates that leases in perpetuity, like the Lease in the present case, might be granted for the limited purpose of grazing (see s 19B(2)). In Wik, the majority considered that a lease “for pastoral purposes” (if anything, a broader concept than grazing: Wik, at 201, per Gummow J) did not authorise activities necessarily inconsistent with all incidents of native title: Wik, at 122, per Toohey J; at 153, per Gaudron J; at 201, per Gummow J; at 245, per Kirby J.
Moreover, Gummow J, in the passage (at 184) quoted above, referred to the “possibility of injustice to the many, varied and complex interests involved across Australia as a whole” if an attempt were to be made to “extrapolat[e] to an assumed generality of Australian conditions and history from the particular circumstances of [Wik]”.
I respectfully agree. As contemporary lawyers addressing a current legal problem, we should bear in mind, as Sir Victor Windeyer has reminded us, that:
“… the common law … is a body of dynamic doctrine … [and its] study … is a study of a process of evolution… . It combines stability and continuity with an inherent capacity to change and be changed – gradually by courts, rapidly by any sovereign legislature for its own domain.”
and:
“A present-day lawyer, whether counsel or a judge, who has a present question to resolve is concerned to go back into the past only to come forward to the present – to understand the law of the present by seeing it as a continuation of, or departure from, that which formerly prevailed”.
(Sir Victor Windeyer, History in Law and Law in History, (1973) (11)(1) Alberta Law Review 123 at 125; 126; and see also W M C Gummow, Change and Continuity; Statute, Equity and Federalism (Clarendon Law Lectures, Oxford University Press, 1999) at xvii.)
On behalf of Mr Wilson, a valiant attempt was made in argument in the present case to invite this Court to revisit, and review, some of the history described by Toohey, Gaudron and Kirby JJ in Wik. This aspect is more fully dealt with in the Appendix to these reasons. For immediate purposes, it suffices to say that this historical “issue” is beset with its own immense complexities. If, contrary to my understanding, historical considerations had, in truth, formed part of the ratio of those members of the majority in Wik, it would have been necessary for us to address these multi-disciplinary questions. But, we have not had the benefit of expert evidence or full arguments from both sides on these questions. In the circumstances, in my view, it is not appropriate that we pursue them further.
This is not, however, to say that in the interpretation of this legislative scheme, regard cannot be had, as part of the immediate “context”, to the material in the 1901 Parliamentary Report and the Second Reading speeches, in interpreting the WLA including its 1934 amendments. On any view, they are a legitimate resource in the process of statutory interpretation (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 99 and 112 – 113). I mention this material below. But the point is that, once it is accepted, as I think, that the interpretation to be placed upon the early colonial history did not form an essential part of the majority reasoning in Wik, we need not embark upon the complex undertaking of endeavouring to relate that early historical material to twentieth century legislation in the form of the WLA.
(b) The significance of the vast size and remote location of the lands leased in Wik
Again, it is true that Toohey, Gaudron and Kirby JJ referred to these factors. Kirby J (at 233 in the passage quoted above) described them as “context” of such significance that, if a conclusion of “exclusive possession” were to be drawn, “… it would require very clear law to drive me to such an apparently unrealistic conclusion”. Despite this, upon analysis, it does not seem that degrees of size, or of remoteness, were part of the ratio. Being dependent upon matters of degree, rather than of kind, it is not to be expected that such matters could translate easily into a known legal principle. More importantly, these aspects were not incorporated into the postscript, which, as Toohey J explained, was intended to illuminate the process of reasoning of the majority in answering the questions.
The difficulties in attempting to incorporate factors such as these into legal doctrine are well illustrated in the present case. By suburban standards, an area of 10,000 acres is immense. But judged by the standards of the zone in question, as recognised by the statute itself, it is no more than the minimum area required to make a living for a single family. The significance of this and the need to place the size of these areas in realistic perspective, are made clear by the material previously referred to, the 1901 Parliamentary report, and the Second Reading speeches in 1901 and 1934. This material was confirmed by the provisions of the statute and by the terms of the lease, limiting the purposes for which the land may be used, requiring bona fide residence on the lands leased, and contemplating a holding of the size of a home maintenance area. Moreover, the remoteness described in Wik is to be contrasted with the detailed requirements prescribed by the WLA, its regulations and the lease obliging the lessee to undertake upon the lands leased a whole range of activities.
These considerations reinforce the point that, for legal purposes, we should not attempt to assess, even if it were practicable, relativities of size and remoteness as decisive considerations in the present context.
CONCLUSIONS ON THE SEPARATE QUESTIONS
It will be convenient to consider first the issues concerning the right to possession, and then to turn to the extinguishment issues.
(a) Possession issues – the lessee’s rights
As I followed the arguments before us, it was not, and could not be, seriously in dispute that the lessee had a right to possession for grazing and for the incidental purposes of the kind described by Toohey J in Wik (at 114, see para 84). That is to say, the provisions of the legislative scheme, and of the lease itself, to the effect that the lessee is to use the lands for a particular purpose, must carry with them, by necessary implication, the intention of the Parliament and the Executive that the lessee have such possession of the area which is needed to achieve that purpose. Moreover, that a possessory or proprietary right was intended by the Parliament and the Executive to be granted is indicated by other express provisions of the legislative scheme and of the lease. The residence requirement, the fencing obligations, the requisite home maintenance area, the elaborate provisions dealing with the transfer or mortgage of a WLA lease and its devolution upon death, together with the detailed provisions with respect to improvements previously described, illustrate and confirm this. These provisions are more consistent with an intention to create a more permanent, possessory title than the merely personal, ephemeral relationship which is found in, for example, a bare licence.
The real issue here is whether that possession was “exclusive”. On any view, to use Toohey J’s words, the answer to this question must be accepted to be a complex question of law and fact.
The decision and the reasoning in McPherson stand for the proposition that, for the purposes of the availability of relief against forfeiture, the lessee should be treated as having exclusive possession: that is, in the sense that, in this context, a WLA lease in perpetuity is to be regarded as relevantly the same as, or equivalent to, a common law lease. But in the light of Wik, the reasoning in McPherson must, I think, now be read as directed only to its context, i.e. forfeiture. The ratio in McPherson did not encompass any claim of native title, which was not in issue there. In other words, we should not interpret McPherson as deciding that the right to possession under a WLA lease carried with it the right to exclude Aboriginals: that question was simply not there an issue. This is not to cast any doubt at all upon the decision in McPherson. There is nothing in the statutory scheme (relevantly described at paras 23 – 48 above), or in the High Court decision in Hawkins or in Wik, which detract from what McPherson actually decided. As I have said, I respectfully agree with what it decided, and with the reasons given by each member of the Court of Appeal for the decision.
But, at all events, a WLA lease could never be regarded as conferring a legal right to “exclusive” possession in any literal, absolute, unconditional or universal sense, even if the relative status of native title rights are put to one side for the moment; that is to say, the lessee’s right to possession was already expressly qualified or conditional in several respects, whatever the position would be vis-à-vis native title interests. One qualification has already been mentioned, namely the existence of the requisite purpose, viz. grazing. The lessee had no right to use the land for any activity not incidental to grazing. Other express conditions or qualifications clearly limit the lessee’s possessory title. As has been seen, Toohey J in Wik (at 122) observed that the lessee in Wik was granted, by the statute, possession for pastoral purposes, that is, such possession as was required for the occupation of the land for those purposes. But his Honour went on to note the reservation of rights of entry, to which the lessee’s right to possession must yield. Likewise, Kirby J in Wik at 245, in the passage cited above, observed that the lessee would be entitled (but with exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment. The same comments can be made of the explicit exceptions and reservations in the present case.
As has been seen, the Lease itself is expressed to be subject to the following additional qualifications upon the lessee’s right to possession:
·The reservation of minerals etc.
·The reservation of the State’s right to proclaim Roads, Travelling Stock, Camping or other Reserves and to withdraw land for these purposes without compensation.
·The reservation of the State’s power to resume land for mining, townships or public purposes.
·The lessee’s obligations (a) to permit authorised persons to enter and search for, remove etc. minerals etc. (condition 16); and (b) to permit the Minister for Conservation, or any person acting on his behalf, to enter for the purposes of survey or investigation in connection with soil conservation etc. (condition 22).
These qualifications upon the lessee’s right to possession are clearly within power, being specifically mentioned, as has been seen, in paras (k), (l), (m), (p) and (o) of Schedule A to the WLA.
In addition, as noted above, s 44(1) of the WLA confers upon the Governor the power to withdraw leased lands for settlement purposes.
As has also been noticed, further qualifications are imposed by the Regulations, i.e. the Commissioner’s power to cause inspections (reg 79); and the power of an authorised person to enter and to open and remove fences (reg 80).
Again, as I followed the arguments before us, the existence of these qualifications upon the lessee’s right to possession was not, and could not be, seriously in dispute. But in my opinion, no useful purpose could be served here by answering the separate questions by first referring to the existence of the lessee’s right to possession, and then attempting (especially at this early stage of the principal proceedings) an exhaustive catalogue of the numerous express exceptions and reservations, some mentioned above, and which could not be in serious contention. Rather, as has been said, the real question here, and the aspect that the Court should now address, is whether the lessee had the right to exclude those claiming native title rights. And, as Toohey J noted in Wik (at 131), the questions framed by reference to exclusive possession “tend to obscure what is the critical question, that of extinguishment” (i.e. the present question (c), which I will next address).
In these circumstances, before proceeding to questions (a) or (c), I would answer question (b) as follows:
“The Lease confers upon the lessee a right to the possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings.”
In these circumstances, I need not answer question (a).
(b) Extinguishment issues – native title holders rights
It follows that, as in Wik, this (question (c)) is the central question here.
In Commonwealth of Australia v Yarmirr (1999) 168 ALR 426 (at 436 – 439), and in State of Western Australia v Ward [2000] FCA 191 (at pars 55 – 120) von Doussa J and I referred to the High Court decisions which have explained authoritatively the general concept of extinguishment, including partial extinguishment.
In addressing question (c), it is pertinent to note that Toohey J’s postscript in Wik contemplates (1) an inquiry whether inconsistency exists between (a) the rights and interests conferred by native title and (b) the rights conferred by the statutory grants of the leases; and (2) if so, an identification of the extent of the inconsistency, because if inconsistency is held to exist, the native title rights and interests will “yield” (i.e. will be extinguished) to that extent. For our purposes, this statement of principle is, in my view, authoritative and squarely in point. Accordingly, it should, in my opinion, be applied here.
I propose to answer question (c) accordingly, and to add, for the reasons which now follow, that it is not appropriate to answer this question further in respect of extinguishment, or suspension, at this stage of the proceeding.
In answering the questions in Wik, Toohey J said (at 131):
“The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights.”
Gummow J also noted (at 169, 204) that it was significant that, in Wik, there had not then been a trial of the facts, so that the range and scope of the incidents of any native title rights that might be found to exist were not then known.
And more recently in Yanner v Eaton (1998) 166 ALR 258 Callinan J, expressing a similar sentiment, said (at 300):
“In this case there was evidence which was uncontradicted and uncontested, relevantly directed to the rights, traditions, customs and practices of the Aboriginal group of which the appellant was a member, and findings of them by the magistrate of sufficient particularity to enable, indeed to compel, the carrying out of the exercise which the majority in Wik was unable to carry out in order to decide whether the leases extinguished wholly or partially any of the native title rights claimed.”
In the present forensic circumstances, which are similar to those before the High Court in Wik, it is not now appropriate to pursue the operation, if any, of the doctrines of extinguishment or “suspension”, beyond making the general answer mentioned in response to the generally expressed question asked.
I would therefore answer question (c) thus:
“The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the lessee. It is not appropriate to answer this question further at this stage of the principal proceedings.”
COSTS
In all of these circumstances, it is appropriate that the costs of the separate question be the parties’ costs in the principal proceedings.
POSTSCRIPT
Since writing the above, I have had the advantage of reading the reasons of Black CJ and Sackville J.
I agree with their Honours that, given the operative date here (1953 or 1955) (i.e. before the introduction in 1975 of the Racial Discrimination Act 1975 (Cth) (“the RDA”)), the provisions of the NTA have no relevant operation here, essentially for the reasons given in Fejo and Yanner, and as explained by von Doussa J and myself in Ward at par 77; that is, if extinguishment occurred here, it had occurred at common law in 1953 or 1955, well before the RDA or the NTA. The argument before us ultimately appeared to proceed upon that footing, correctly so in my view. My reasons proceed accordingly.
Whilst, otherwise, some differences of emphasis do appear, each of our respective approaches follows, as we are bound to do, the majority opinions in Wik. We all also hold that the questions asked in Wik, and here, tend to conceal, rather than reveal, the true issues. For that reason, I have chosen to apply the particular reasoning of the Wik majority stated, with the concurrence of the other members of the majority in the postscript in the judgment of Toohey J.
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APPENDIX
ASPECTS OF EARLY COLONIAL LAND LAW HISTORY CONSIDERED IN WIK
In their arguments in the High Court in Wik, counsel on both sides of the record referred to aspects of the history of the legislative treatment of Aboriginals by the State.
Counsel for the Wik Peoples referred (at 9) to “the reality” of continued occupation by traditional occupants, the knowledge of such occupation by the State and pastoralists and the history of pastoral leases. Counsel submitted that this also “accords with” the history of the legislative treatment of Aboriginals by the State, and argued that pastoralists never in fact had possession exclusive of traditional occupants.
Counsel cited a passage in the reasons of Lee J in North Ganalanja Aboriginal Corporation v State of Queensland(Re Waanyi) (1995) 61 FCR 1 at 23 – 24. There, Lee J, noting that a “vast” area of Crown land unsuitable for close settlement, or enclosure, is permitted by the Crown for pastoral purposes, said (at 23 – 24):
“On the face of those facts it is arguable that the interests created by the Crown as pastoral leases – a course necessitated by the need to regulate the practice of settlers of ‘squatting’ on unalienated Crown Land – were intended to be used, or enjoyed, in coexistence with indigenous title and that the granting of pastoral leases over such areas did not carry with it an intent by the Crown to extinguish native title: see S H Roberts, History of Australian Land Settlement 1788-1920, Macmillan (1968), p 166 et seq: ‘The Tracks of the Squatters’; Ch 15: ‘The Squatters and the Government’.
In so far as assistance is to be gained from the consideration of history of the use of the waste lands of the Crown for pastoral purposes it may be said that the historical records suggest at the outset an absence of Crown intention to exclude customary rights of access of Aboriginals to that land, or to extinguish native title: see Orders-in-Council, 9 March 1847 proclaimed 7 October 1847, 18 July 1849 proclaimed 23 April 1850; Dispatch No 24: Secretary of State, Earl Grey, to Governor of New South Wales Sir Charles FitzRoy, 11 February 1848 Historical Records of Australia Series 1, Vol 26, p 226; Dispatch No 134: Earl Grey to Sir Charles FitzRoy, 6 August 1849; Dispatches to the Governor, Mitchell Library, MSA 1308.”
Stephen Roberts, in his work cited by Lee J, described (in Ch 15) the history of the relationship between the squatters and the NSW Government in the period 1828 – 1841. In Wik, Kirby J (at 226) cited Roberts at 179 as authority for the proposition that in the late 1820’s squatters took possession of land, unoccupied by other squatters, without right or title. Roberts referred (at 186) to the “famous” Order-in-Council of March 1847 as embodying a desire “to give encouragement to those engaged in pastoral pursuits”. Robert said (at 187) that the squatters thereby “received the … privileges for which they had fought; they had acquired rights in the land; the Order-in-Council was the anchor of their rights”. But, according to Roberts, this led to “a struggle between squatters and people, to the formation of the impasse which was shattered only when free selection was achieved in 1861” (at 187).
The Solicitor-General for Queensland (at 34 – 35) advanced a detailed historical argument disputing the contentions of the Wik Peoples in this connection. The Solicitor referred (at 35) to a report provided to Earl Grey in 1847, and subsequent events, as follows:
“In March 1847, an Imperial Order in Council, comprising regulations to the 1846 Act, authorised the Governor to grant pastoral leases and gave existing licensees a right to demand leases of their runs. In May 1847, Governor FitzRoy sent Secretary of State Earl Grey a report from an Assistant Protector of Aborigines recommending that suitable reserves be immediately formed for the benefit of the Aboriginals, because unless that were done, the granting of leases of Crown lands would deprive them of any right to hunt over their native land. Earl Grey replied that his view was that leases granted for the purpose of pastoral occupation gave only limited rights which did not deprive natives of rights to hunt etc. Recognising that his view might not be shared in New South Wales, he suggested that the limitation on the right of exclusive occupation granted by Crown leases be enforced by public declaration or declaratory Act. The local law officers advised that a pastoral lease did confer exclusive possession free of Aboriginal rights of access. That view was accepted by legal advisers to the Colonial Office.”
The Solicitor then (at 35) described some of the subsequent history as follows:
“An Imperial Order in Council of July 1849 made from a draft prepared by them was forwarded to the Governor with a despatch which shows that Earl Grey had by then accepted that, in the absence of express condition enabling Aboriginal access, a pastoral lease in New South Wales conferred exclusive possession against all others, including Aboriginals, of the land demised. He never sought to give a binding direction to the Governor to include Aboriginal access conditions in pastoral leases. The Order in Council only empowered the Governor in his discretion to include a condition in future pastoral leases. No binding requirement was ever sought to be imposed that an access condition be included. A clause permitting Aboriginal access was inserted in some early Queensland pastoral leases but it was never required by statute. It was a matter for the Governor’s discretion.”
In his historical survey of pastoral leases, Toohey J (at 108 – 111) traced the developments in this area from the use of the Royal Prerogative to grant lands at the establishment of the colonies to the subsequent need for statutory regulation, leading to the enactment of the Sale of Waste Lands Act 1842 (Imp) and the subsequent surrender by the English authorities of control over Crown lands to the local legislature by the New South Wales Constitution Act 1855 (Imp). His Honour’s description (at 111) of the story of the relationship between the Crown and those who wished to take up land has been summarised earlier in my reasons.
Toohey J next (at 110) explained the situation in what later became the State of Queensland, noting that pursuant to the provisions of the Crown Lands Unauthorised Occupation Acts 1839-1841 (NSW), a Commissioner of Crown Lands was appointed for the Moreton Bay District. His Honour noted (at 119) that in transmitting this Act to the Secretary of State in 1839, Governor Gipps stated that one of its aims was “[to put] a stop to the atrocities which have been committed both on them [the natives] and by them”. Toohey J said that “[t]he whole tenor of these provisions indicates a contemplation that Aborigines would be upon licensed lands”.
As has been noted, Toohey J next turned to the despatches by Earl Grey as Secretary of State to Governor FitzRoy in 1848 and 1849. His Honour said (at 119):
“The thrust of contemporary documents, in particular communications by the Secretary of State, Earl Grey, to the Governor of New South Wales make it clear that Aborigines were not to be excluded from land under pastoral occupation.”
Gaudron J (at 141) and Kirby J (at 227) also referred to Earl Grey’s despatches at this time and arrived at similar conclusions.
There can be no doubt that the writings of Dr Fry and those of Professor Henry Reynolds were influential in the reasoning of the majority in Wik. Toohey J said (at 108) that in his historical survey he was indebted to the monograph by Professor Reynolds and James Dalziel, “Aborigines, Pastoral Leases – Imperial and Colonial Policy 1826 – 1855”, (1996) 19(2) UNSWLJ 315. In his judgment in Wik, Kirby J (at 226) cited an essay by Reynolds, “Native Title and Pastoral Leases” in M Stephenson and S Ratnalpala (eds), Mabo: A Judicial Revolution, (University of Queensland Press, 1993). He also cited (at 230) an earlier work by Reynolds, Dispossession Black Australian and White Invaders (Allen & Unwin, 1989). Reynolds and Dalziel’s thesis was that by the end of the 1850s, colonial land policies aimed, inter alia, to ensure that Aborigines would not be prevented from having continued access to the pastoral lands of the colony as long as those lands were used for pastoral purposes (at 315).
As has been noted, the Solicitor-General for Queensland had argued in Wik (at 35) that the Order in Council of July 1849 was forwarded with a despatch that shows that Grey by then accepted that, absent an express condition, a pastoral lease conferred exclusive possession against all others, including Aboriginals.
However, Reynolds and Dalziel see the matter differently. They say (at 366):
“K. Effect of the Order in Council
The history of the 1849 Order in Council underlines two key differences between a lease for pastoral purposes and other forms of lease. Firstly, it was a lease for a specific purpose which had been created pursuant to statute. Secondly, the location, area and non-intensive use of lands to be leased for pastoral purposes distinguished ‘pastoral leases’ from leases for other purposes, of land elsewhere in the colony. Earl Grey acknowledged this when he pointed out that leases conferred only an exclusive right of pasturage and of ‘cultivating such land as they may require within the large limits thus assigned to them’ and were not intended:
… to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil, except over land actually cultivated or fenced in for that purpose. (emphasis added)
Although the Order in Council did not specifically refer to Aboriginal rights over pastoral leases, its meaning was nevertheless clear. During the 1830s, the need to take steps to ensure the ‘peaceable and effectual occupation’ of pastoral lands had been a concern to the Imperial and colonial governments.”
The authors (at 367) give examples of leases granted in New South Wales and Queensland in the 1860s and 1870s and later which contained conditions reserving to the “Aboriginal Inhabitants of the Colony” such “access … as will enable them to procure the Animals, Birds, Fish and other food on which they subsist”.
Reynolds and Dalziel describe the exchanges in 1849 as follows (at 368):
“Although the Permanent Under Secretary of the Colonial Office, Herman Merivale, thought that the Order in Council ‘will be found to answer the purpose, as to future leases’ the wording nevertheless concerned Parliamentary Under Secretary of State, Benjamin Hawes. In a Minute on the letter from the Colonial Land and Emigration Office enclosing the draft Order in Council he noted, the ‘nature and extent of the access of the natives must surely be defined – or far more serious collisions may arise’. Earl Grey noted that the Order in Council would ‘be sufficient with the suggested explanatory despatch’. It has been proposed that this remark suggests that Grey had had a change of heart or that he ‘refused to declare that the native rights deserved respect’. The explanatory despatch reaffirms Grey’s earlier views but clearly, he had accepted the approach recommended by Murdoch and Rogers and appreciated the practical difficulties they had encountered in drafting an instrument that would at once address concerns regarding the Aborigines but also other inconveniences to the public which it was anticipated would arise from the granting of leases. Grey may well have considered the reaction of the squatters. In any event, a general declaration of the rights conferred by leases had been rejected because it was thought that some leases might already have been granted. A similar declaration with respect to the Aborigines would no doubt have faced the same objection. On the other hand, within the constraints of the 1846 Act and 1847 Order in Council, the 1849 instrument gave the Governor the authority to insert conditions in leases and this after all was what FitzRoy had requested.” (Footnotes omitted)
Reynolds and Dalziel say (at 372):
“Grey felt that the management of colonial waste lands was properly a responsibility of the Imperial Government and that the protection of the Aborigines was a subject not just of concern ‘to the colony but to the nation’ as a whole. His reluctance to agree to the transfer of control over the management of these lands to colonial legislatures can be attributed to several factors, including it would seem, an unwillingness to let the colonists exercise an unfettered power over what happened to the Aborigines.” (Footnotes omitted)
The authors cite, in this connection, J M Ward, Colonial Self-Government. The British Experience 1759 – 1856, (Macmillan, 1976), esp. at p 328. There Ward said (of Grey):
“His successors, no less confident than he of the great destiny and fundamental good sense of large British communities overseas, were less trammelled by hopes of a uniform commercial policy for the whole empire and, it must be admitted, less scrupulous than he in their concern for indigenous peoples, who might be oppressed if European settlers were left to rule mixed populations without close imperial supervision.”
Another scholar, Dr Jonathan Fulcher disagrees and criticises, inter alia, the omission of a significant part of the quotation from Hawes. Fulcher says in his article “Sui Generis History? The Use of History in Wik” in G Hiley (ed), The Wik Case: Issues and Implications (Butterworths, 1997) (at 55 – 56):
“On the document of 17 April 1849 from Murdoch and Rogers to Earl Grey, Benjamin Hawes made a rare marginal notation. Reynolds and Dalziel merely refer to Hawes’ comment that the:
‘nature and extent of the access of the natives must surely be defined – or far more serious collisions may arise …’ [p 111].
However they leave out a critical piece of Hawes very brief note. After ‘arise’ Hawes wrote:
‘… than now that they can be restrained.’
He sought greater definition of how exactly this reservation would work in practice. Hawes was suggesting that leases enabled Aboriginal people to be excluded and this would prevent clashes. Frontier violence was a matter of constant concern to Colonial Office officials, and Hawes could see benefits in leasing land, thereby legally excluding Aboriginal people and so keeping settlers and Aborigines apart. Hawes clearly believed that leases had this legal effect, or he would not have used the word ‘restrained’.”
The scholarly debate remains unresolved. (For an analysis of Earl Grey’s role in colonial affairs, see J M Ward, above; and see also H Reynolds, Why Weren’t We Told (Viking, 1999) pp 210 – 215.) Plainly, this litigation is not the appropriate forum for its resolution, particularly in the absence of expert historical evidence.
In any event, as Ernest Scott observed in his introduction (at xi) to Stephen Robert’s History of Australian Land Settlement (1788 – 1920):
“Nobody can ever claim finality for historical work, nor should desire to do so; ….”
And see also F B Wiener, Uses and Abuses of Legal History: A Practitioner’s View, (Selden Society, 1962) at 9.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.
Associate:
Dated: 5 April 2000
Counsel for the Applicant:
Mr Patrick Larkin
Solicitor for the Applicant:
Craddock Murray & Neumann
Counsel for the First Respondent:
Mr Alan Sullivan QC with Mr John Emmerig
Solicitor for the First Respondent:
Blake Dawson Waldron
Counsel for the Second Respondent:
Mr Vance Hughston
Solicitors for the Second Respondent:
Crown Solicitor’s Office
Counsel for the Third Respondent:
Mr John Basten QC with Mr Robert Blowes
Solicitor for the Third Respondent:
Andrew Chalk Associates
Date of Hearing:
18 and 19 October 1999
Date of Judgment:
5 April 2000
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