Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors

[2024] HCATrans 50

[2024] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2023

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

YUNUPINGU (ON BEHALF OF THE GUMATJ CLAN OR ESTATE GROUP) AND OTHERS NAMED IN THE SCHEDULE

Respondents

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON FRIDAY, 9 AUGUST 2024, AT 10.00 AM

(Continued from 8/8/24)

Copyright in the High Court of Australia

GAGELER CJ:   Mr Glacken.

MR GLACKEN:   Your Honours, yesterday I mentioned a decision of the Privy Council, the citation of which always escapes me, that an acquisition requires an act under legal compulsion.  It is John Cooke v Commonwealth (1924) 34 CLR 269 at 289, concerning wool clips.

From where I left off yesterday, I mentioned the normative force of the clear and plain intention standard.  Could I just elaborate upon that by asking the Court to turn up Queensland v Congoo (2015) 256 CLR 239, it is in the bundle at volume 14, tab 103. I will go to two or three passages in the judgments of the statutory majority. If your Honours turn up Chief Justice French and Justice Keane at paragraph 34 ‑ ‑ ‑

GORDON J:   What paragraph, Mr Glacken?

MR GLACKEN:   Paragraph 34.

GORDON J:   I think you might need to speak up, please, I am having problems hearing you.  I may be the only one ‑ ‑ ‑

JAGOT J:   No, you are not – was that 34 or 44?

MR GLACKEN:   It is at paragraph 34 in the reports.

JAGOT J:   Thanks.

MR GLACKEN:   Their Honours observed that: 

The clear and plain intention standard for extinguishment formulated in Mabo [No 2] is an important normative principle informing the selection of the criterion for determining whether a legislative or executive act should be taken by the common law to have extinguished native title.  That standard has not been displaced by any subsequent decision of this Court.

And this is the point I made yesterday:

The settled criterion for its satisfaction, which has been established in the case of the grant of rights over land or waters pursuant to a statute, as explained in Western Australia v Ward, is inconsistency between the rights granted and the propounded native title rights and interests.

And I should say, Congoo is a case, and so is Yarmirr, where the criterion of inconsistency has equal application to other acts by the sovereign power.  Now, Congoo was the case of the wartime measures under the military regulations of the Commonwealth taking possession of land, but the criterion of inconsistency ultimately informed the outcome.  And then, at paragraph ‑ ‑ ‑

GAGELER CJ:   Mr Glacken, that sentence you have just read to us from paragraph 34 contains within it the essence of the argument against you that you really need to grapple with, and that is, it is not about the legislative act itself extinguishing native title, it is about the legislative act being taken by the common law to have that effect.  That is the essence of the argument against you.  It is a common law rule of recognition that has built into it, it is said, this element of inherent defeasibility.

MR GLACKEN:   Yes, I am going to come to that by elaborating upon what is meant by “recognition”, and answering the Chief Justice’s question yesterday about what is the property involved.  We do not say that talking of a common law rule of recognition is anything inconsistent with our case, although we do say there must be care not to slip into speaking of common law requirements or elements of native title, but I will come to that in a moment.

I just wanted to round off the submission yesterday, picking up what Justice Beech-Jones said, is that when we look at Justice Brennan at page 62 of Mabo, there is no substantive difference between the interpretative presumption at 62, point 2 and the clean and plain intention standard at 62, point 4 of the Commonwealth Law Reports.  So, at paragraph 37, after the quotation referring to Akiba, their Honours continue that:

The normative force of the clear and plain intention standard is reflected in the inconsistency criterion.

Then Chief Justice Gageler at paragraph 158 refers to the statement in the Native Title Act Case that:

“native title can be extinguished –

at common law, and your Honour continues:

must be understood in light of the footnoted reference to the reasons for judgment of Justice Brennan in Mabo –

Then, at the very bottom of the page, where:

his Honour said . . . that “[a] clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment –

and I will come back to that for ground 3.  Then, at paragraph 159, your Honour continues:

There are many references in the native title case law to the need to discern a “clear and plain intention” –

then explains how:

They are to be understood –

in terms of:

the judicial determination of the scope of legal change –

and then, the last four lines:

So understood, they have, as French CJ and Keane J put it in the present case, “normative force”:  they inform constructional choice.  They are not inherently in tension with the common law test being one of “logical antinomy” of rights.

being a reference to Brown’s Case:

To the contrary, they inform one aspect of its application.

Then as to the ultimate result, in terms of the construction of the wartime measure, at paragraph 167, the last line expressing, alternatively, an agreement with the reasoning of Chief Justice French and Justice Keane.  Now, as I said, that was just to round out, so to speak, that submission that there is no substantive difference between the interpretive presumption of non‑derogation from grant and the clear and plain intention standard.

Just in that context, when we look at the Commonwealth’s case, that is all that is pointed to for the alleged vulnerability – it is the absence of a so‑called comparable rule of non‑derogation from grant.  It only comes down to that.  That is all that is identified in the Commonwealth’s case.

Could I then deal with what we say in terms of what is the property to ultimately make this point, extinguishment is not a contingency inherent in the property itself.  It is not akin – borrowing from what Dr Helmore said – the seeds of destruction in the words of limitation and a defeasible or determinable fee, and a contingency that has come to past.  Extinguishment depends upon, to simplify things, when the continued recognition of native title rights is consistent with the common law and when it is not – and I will come to what is said in Yarmirr about that, and Yorta Yorta.

GAGELER CJ:   You have not addressed what is the property – you have assumed property in the statement you just made.

MR GLACKEN:   Sorry, I did not quite pick that up.

GAGELER CJ:   Is the property the bundle of rights existing under the different system of law, or is it that bundle of rights to the extent recognised by the common law?

MR GLACKEN:   The former.

GAGELER CJ:   The former.

MR GLACKEN:   The former, for these reasons.  First, native title is property as fact – and I will explore that with Yanner v Eaton.  Secondly, what is meant by “recognition” – and I will explore that with Yarmirr and Yorta Yorta – it is a process of enforcement of the property.  Thirdly – or perhaps I will put it this way – the first and second propositions are consistent with the third and fourth.

Those two propositions are consistent with, first of all, characterisation of the consequences of extinguishment, which were dwelt upon yesterday and we put it in our outline – that is, it is undeniable that extinguishment of native title rights to land confers an identifiable proprietary benefit on others. It is also consistent with the learning on section 51(xxxi) that property can exist separately to its enforcement.

We make that point in our written submission, at paragraph 72(4), in reference to Georgiadis and what occurred in that case, where an accrued general law cause of action against the Commonwealth was an acquisition of property even if the practical enforcement of that right depended upon having a right to proceed derived from statute – see 179 CLR 297, at 305 to 306, Chief Justice Mason, Justices Dean and Gaudron, and 311 to 312, Justice Brennan.

Could I then elaborate upon that by, first of all – perhaps in a slightly different order – before dealing with native title as property and as fact, can I deal with the concept of “recognition” by asking the Court to go to Yarmirr, and then I will go to Yorta Yorta.

GAGELER CJ:   Where are we going now?

MR GLACKEN:   We are going to Yarmirr, and then Yorta Yorta, to elaborate upon what is meant by “recognition”.  Yarmirr 208 CLR 1 is volume 6, tab 70. If your Honours turn up paragraph 40 of the joint reasons. At paragraph 40, the joint reasons commence:

The requirement in section 223(1)(c) –

of the Native Title Act:

that the native title rights and interests which are claimed are “recognised by the common law of Australia”, is not elucidated elsewhere in the Act –

And, perhaps, if your Honours make a margin note, we say it is elucidated in Yorta Yorta at paragraphs 75 to 77. Then in Yarmirr, their Honours continue:

It is useful to approach the requirement from two opposite poles:  the negative, when will the common law not recognise such rights and interests; and the positive, when will the common law recognise them?  At the risk of some over‑simplification, the fundamental question which lies behind both of these approaches is a question about inconsistency between the asserted rights and the common law.

Again, this is why I mentioned yesterday that things are a bit more simple than referring to “skeletal principles”. At the risk of over‑simplification, continued recognition depends upon the criterion of inconsistency being informed by the clear and plain intention standard. So, again, at paragraph 42, after referring to statements in the Native Title Act Case that extinguishment is not to be presumed, their Honours say:

Thus the question about continued recognition of native title rights requires consideration of whether and how the common law and the relevant native title rights and interests could co‑exist.

Then, at paragraphs 48 and 49 – and by going to these next paragraphs, I am also dealing with a lot of subsidiary points in the Commonwealth’s case about “skeletal principle” – at 48, their Honours note it is important:

to bear steadily in mind that native title rights and interests are not created by and do not derive from the common law.  The reference to radical title is, therefore, not a necessary pre‑requisite –

It:

provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co‑exist.

Then, at 49:

It is, however, not right to say, as the Commonwealth contended, that native title rights and interests cannot exist without the Crown having radical title . .  This contention gives the legal concept of radical title a controlling role.  The concept does not have such a role.  It is a tool of legal analysis which is important in identifying that the Crown’s rights and interests in relation to land can co‑exist with native title rights and interests.

On the cross‑appeal by the native title holders, or the separate appeal, which commences at the discussions at paragraph 81, the issue ‑ ‑ ‑

GORDON J:   What page are we at, sorry, Mr Glacken?

MR GLACKEN:   The discussion on the native title holders’ appeal commences at paragraph 81, under a heading “The claimants’ appeal”.  What was in issue was whether exclusive native title rights to the sea could be recognised in view of the existence of common law public rights to fish and navigate “recognised” upon the change of sovereignty.  The conclusion was, at 94, that they could not co‑exist, but, of course, non‑exclusive rights to use the waters of the sea could co‑exist.  There was no inconsistency with those rights.  And then, at paragraph 97:

Much of the debate on this aspect of the matter proceeded by reference to the metaphor of “fractur[ing] a skeletal principle of our legal system” used by Brennan J in Mabo [No 2].  The use of the metaphor cannot, however, be allowed to obscure the underlying principles that are in issue.  There are obvious dangers in attempting to argue from the several elements of the metaphor to an understanding of the principles that lead to the result that is expressed by the metaphor.  It is, therefore, not profitable to stay to consider what principles of the legal system are, or are not, part of its “skeleton”.  Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.

I will develop the notion of “recognition” by going to Yorta Yorta, but the process of recognition depending upon consistency or inconsistency is a process that is separate to the property.  It is the process of the enforcement of the property accommodated in the new legal system.  As we said yesterday, as would be the case with rights and interests in land that owe their existence to the new legal sovereign order.  As for what “recognition” means, and why we say it is not an element of the property, if I can put it that way, if your Honours turn up Yorta Yorta ‑ ‑ ‑

EDELMAN J:   “Recognition” is a slightly misleading metaphor in some senses, because on your submission, the property right exists, and exists at common law, irrespectively of whether it is recognised or not, but this label of “recognition” is really analysing whether or not that right can be given effect to in light of inconsistency with other rights within the system.

MR GLACKEN:   Correct.

GORDON J:   That is made good by paragraph 100 of that passage on the page of Yarmirr that you just took us to, when the Court says at the end:

At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.

MR GLACKEN:   Yes.  One can read an emphasis on the word – it depends what “existence” ‑ ‑ ‑

GORDON J:   The way you have just walked us through it, the answer, I think, is, you identify what are the native title rights and interests at issue in a particular case, and one has to identify whether or not they have existed at the relevant time, and under this regime here, at least in the Yarmirr approach, one asks whether the subsequent act – to adopt your language – is so clear that it cannot sit with and continue with, is inconsistent with, the continued existence of the asserted rights.

MR GLACKEN:   By that, cannot be enforced ‑ ‑ ‑

GORDON J:   Correct.

MR GLACKEN:   To answer Justice Edelman’s question, perhaps I neglected – but Justice Brennan in Mabo speaks of recognition as being able to provide such legal and equitable remedies that are suitable to the rights and interests in issue.

EDELMAN J:   In other words, the rights pre‑exist the recognition.

MR GLACKEN:   Correct.

EDELMAN J:   In the same way as a right to possession arises as a result of the fact of possession.

MR GLACKEN:   Yes.

EDELMAN J:   But the common law just gives consequences to that.

MR GLACKEN:   And that is the next point I am going to develop by reference to Yanner v Eaton, that to adopt a Gray and Gray analysis, although native title is property as right and, deeply, property as responsibility, it is in its core property as fact in the sense of the exposition in Mabo (No 2).  It was the simple fact of prior occupation that could not be denied.

GAGELER CJ:   What does “property as fact” mean?  What does it mean to say “property as fact”?  Property is a legal relationship, is it not, on any view?

MR GLACKEN:   One, deep in the common law is the notion that property is fact in the sense of possession – it is a cliché, a root title.  And then, in terms of the sort of questions yesterday or the day before about ground 3, if you take an example like 1847 Brown’s Case, it is who has the better title, and who has the better title is that sense of relations, property being our titles are all relative to the source – or resource, I should say – in question.

But I do not want to digress too much with the writings of Gray and Gray. They have informed the Court in areas both in native title and section 51(xxxi). At the end of the day, I think when you re‑read, which I did recently, the seminal piece by Kevin Gray and Susan Gray, one is left to views that property is all those three things.

EDELMAN J:   But the notion of property rights arising simply by virtue of the fact of possession is a lot older than Kevin Gray’s writings.

MR GLACKEN:   That is so – that what he is drawing upon.  But the comment that he makes with Susan Gray in the piece I am thinking of that is cited in Yanner v Eaton is that they considered Mabo (No 2) to exemplify a recognition of property as fact, because you could not deny the prior fact of occupation, which is very much also at the heart of Justice Toohey’s approach to traditional title being possessory.

I think I asked your Honours to turn up Yorta Yorta 214 CLR 422, volume 10, tab 89. These passages are in the Full Court’s judgment, although the final passage is only paraphrased. But if your Honours turn to paragraph 75 of the joint reasons, what really matters is the first sentence:

To speak of the “common law requirements” of native title is to invite fundamental error.  Native title is not a creature of the common law –

Now, we say that error informs or affects – or infects, I should say – the Commonwealth’s case, which speaks of the common law conferring recognition on terms.  That is not our conception of what recognition is and what the common law does.  Then, their Honours go on say – and I will just paraphrase for the moment, that the relevant rights are:

rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title –

Now, in the context of Yorta Yorta, the debate was whether paragraph (c) of section 223 incorporated some common law requirements about continuing acknowledgement of laws and customs, whereas their Honours ultimately found that was sourced in paragraphs (a) and (b) with the concept of what is traditional.  That is reason for the debate.  Then, in the middle of paragraph 76, if I can just paraphrase, their Honours make the point that:

par (c) of s 223(1) . . . cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests . . . is brought into the Act.

Pause.  There is a reason why section 12 no longer appears in the reprint.  It suffered the fate in the Native Title Act Case which, for other reasons, purported to say that the common law had the force of law of a law of the Commonwealth, which was held in invalid in the Native Title Act Case.  But I digress.  Their Honours continue:

To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not.  And to speak of there being common law elements for the establishment of native title is to commit the same error.

In our view, that analysis supports the answer I am developing as to why the property are the rights under the traditional law of custom per se, if I can put it – they were not the rights under traditional law and custom as recognised.

GAGELER CJ:   Mr Glacken, I do not want to take you out of that interesting argument, but just to cut to the end point for a moment. Assume ground 3 against you for a moment. So, assume that the relevant native title rights cease to be recognised at common law in 1903. Of course, they may still continue under customary law from 1903. Is it your case that, provided the rights or interests continue under customary Aboriginal law, they constitute property for the purposes of section 51(xxxi), even if they might have been extinguished according to the common law rule of recognition at an earlier stage?

MR GLACKEN:   If, on the facts of the case, an extinction – sorry, I will put it differently.  If, on the facts of the case, a legislative or executive act would result in an acquisition in the sense of conferring a proprietary benefit on others.  Now, the trouble with that example is – one is ‑ ‑ ‑ 

GAGELER CJ:   Sorry, I did not really understand the answer.  Could you say it again?  I think I did not fully hear it.

MR GLACKEN:   Provided, on the facts of the case, the legislative act – or executive act, pursuant to statute – effected an acquisition in the sense of conferring an identifiable proprietary benefit, yes.  Now, the problem with the facts of that case is that the relevant right is a right to use the natural resources of the land and one is trying to isolate one aspect of that right for one form of substance on the resources of the land. 

Now, “extinguish” means permanently extinguish, see section 237A, and there can be, as I said, entire extinguishment or partial extinguishment.  The Native Title Act itself does, though, permit the revival of native title, if I can put it that way.  What was rejected in Fejo – the argument is Fejo is that there could be a revival upon, in that case, the forfeiture of the land – I cannot remember the exact sequence of events, but it was an historic fee simple.  Logically, if there is nothing left to extinguish or acquire, then there would not be an acquisition.  The question is whether there is.

GORDON J:   Is that to say nothing more – sorry to cut through that.  Is your answer then to say that if there is a clear act which is inconsistent with the native title rights and interest, then there is extinguishment and there is no property which continues to exist for the purposes of 51(xxxi)?

MR GLACKEN:   Yes.

GORDON J:   That is a very broad statement.  So, is that right in this sense:  if you start with the analysis of what is the bundle of rights that existed, which common law then has to intersect with on sovereignty, and one understands the authority is to require a clear act to give rise to an inconsistency, then are you not concerned with the right which is inconsistent?

MR GLACKEN:   Yes. 

GORDON J:   So, you may very well have property which continues for 51(xxxi); it is just not the right that has been effected.

MR GLACKEN:   Correct.  And that is why, if you take ‑ ‑ ‑ 

GORDON J:   And then one has to ask oneself:  is the right effected in whole or in part?  Is it exclusive or non‑exclusive?

MR GLACKEN:   Yes.  And if it is non‑exclusive – well, it is more likely to co‑exist.

GORDON J:   Correct. 

MR GLACKEN:   Correct.

GORDON J:   Is that not a more nuanced answer that is required to be given to the question posed? 

MR GLACKEN:   It is far more nuanced than the way I answered it, your Honour.  I agree.

GORDON J:   I do not know whether it is right or wrong; I am just trying to identify what the ambit of the answer is.

STEWARD J:   Just to be clear ‑ ‑ ‑ 

MR GLACKEN:   That is the analysis – sorry.

STEWARD J:   Sorry.  No, you go ahead.  Finish what you were going to say.

MR GLACKEN:   I was just going to illustrate it by the facts of this case that the Commonwealth’s case on ground 3 at its highest is that it is somehow of the right to take the natural resources of the land once – there is a right to take one substance, which has been extinguished.  That is the highest the case goes.  So, rights to take all the other substances – timber, guano, everything else – somehow is unaffected.  The highest, on their case.  Then, if you look at the later Acts, the grant of the special mineral leases, they interfere with the continuing recognised native title rights – if I can put it that way – to use all those other resources of the land and to otherwise use the land.

GAGELER CJ: Mr Glacken, I am really sorry, I think I just unduly complicated the question by going to ground 3. Let us just assume that there was a grant of freehold in 1903 over the relevant land. The native title bundle of rights and interests may have continued under customary law quite independently of that grant of freehold. That is a separate system of law. Is it your case that a subsequent legislative act must treat, for the purposes of section 51(xxxi), that bundle of rights and interests under customary law as property?

MR GLACKEN:   In that example?

GAGELER CJ:   In that example.

MR GLACKEN:   No.

GAGELER CJ:   So, what is it that prevents them continuing as property, in that example?

MR GLACKEN:   It is more that the subsequent action has no further legal effect. 

GAGELER CJ:   Under what system of law?  Under the common law, you mean?

MR GLACKEN:   Under our system of law.

EDELMAN J:   Your basic proposition is that native title is a right that arises as a result of a fact, but that proposition is not necessarily inconsistent with saying, well, there are some legal rules that tell us which facts count and what the limits are to the facts that will count.

MR GLACKEN:   Yes.  A system of relativity.

EDELMAN J:   Well, it is adding a little bit more to the system of relativity, but it is bringing the facts within the system and saying, well, this is when the right will ‑ ‑ ‑

MR GLACKEN:   Yes.  And to develop that example from the Chief Justice, it is the fact of something occurring under our legal system, being a grant of a fee simple, that is inconsistent with continuing enforcement of the native title rights.  In that example, a later action – the later fact, if you like – has no additional effect, subject to the Native Title Act permitting revival.  Sorry, Justice Steward?

STEWARD J:   No, you answered my question anyway.  Thank you, though. 

MR GLACKEN:   Before I get to properties fact, which really does pick up the more nuanced points in Yanner v Eaton, that there can be partial extinguishment – that was a point of Ward – and there can be prohibition on activities, but not severance with connection and extinguishment – I will get to that in a moment.  Can I just finish what recognition does.

The point I wanted to make from 75 and 76 of Yorta Yorta is it is incorrect to speak of common law elements or requirements of native title, and it is equally incorrect to speak, as the Commonwealth does, of the common law conferring recognition on terms.  Now, what “recognition” means at paragraph 77 has at least two relevant features.  The first we need not dwell upon, but the citation at footnote (106) of Ward, in turn, refers to the Church of the New Faith Case, that there may be in a case for common law to recognise some practice that is:

antithetical to fundamental tenets –

No such case has ever been identified.  And:

Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty.  The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change . . . and now, by resort to the processes of the new legal order, can be enforced and protected.  It is those rights and interests which are “recognised” in the common law.

So, recognition is a process of enforcement, and the question is when native title holders cannot resort to that process of enforcement. 

Can I then develop the second point, which is about the significance of native title as property as fact.  In Yanner v Eaton 201 CLR 351 at paragraph 38 – I will not ask the Court to go to it – Chief Justice Gleeson and Justices Gaudron, Kirby and Hayne observed that:

Native title . . . must be understood as . . . “a perception of socially constituted fact” –

that is, property as fact:

as well as . . . artificially defined jural right”.

Drawing on the work of Gray and Gray.  The joint reasons also observed – sorry, if your Honours want to turn it up, I should have said it is volume 19, tab 128, but I was just going to give the citations.

GORDON J:   And could you just give us the page references you are referring to, Mr Glacken, please?

MR GLACKEN:   Of the ‑ ‑ ‑ 

GORDON J:   Of Yanner v Eaton. 

MR GLACKEN:   Paragraph 38.

GORDON J:   Thank you.

MR GLACKEN:   I am told it is page 373 of the Commonwealth Law Report.  Their Honours also observed at paragraph 38 that:

an important aspect of the socially constituted fact of native title . . . that is recognised by the common law is the spiritual, cultural and social connection with the land.

Now, taking up the points raised by Justice Edelman, in the footnoted paper by Gray and Gray, the authors noted that native title rights, although scarcely expressible in terms of common law estates and interests in land, have been enjoyed for tens of thousands of years before European settlement.  Mabo (No 2) recognised the impossibility of declaring that the holders of those rights had, as Justice Brennan put it at page 29, been converted by European colonisation into: 

intruders in their own homes and mendicants for a place to live.

Your Honours might also note that at pages 39 to 40 and 58 of Mabo (No 2), Justice Brennan rejected strands of older authority, as not conforming to the facts about aboriginal social organisation as we now know them and, importantly, for this case, rejected the absence of law theory as false in fact – sorry, at 58, for this case, I should say – at 58, rejected the theory of Crown beneficial ownership of land in order to bring matters into conformity with Australian history.  So, they are some examples of how Mabo (No 2) proceeded upon the concept of property as fact. 

Returning to Yanner v Eaton at paragraph 35, the joint reasons noted that because the extinguishment of native title “must, by conventional theory, be clearly established”, a law prohibiting the taking of natural resources other than under a permit did not sever that connection, and did not deny the continued existence and exercise of the rights under custom to take those resources.

Could we make this point about some of the later cases.  Akiba v Commonwealth later demonstrated that native title rights to resources of the sea will continue to exist when public common law rights to fish are abrogated by statutory prohibition because – and this is important for this reason – native title rights are more than utilitarian rights to access and use resources; they are more than that because they define relationships between Indigenous people and their country.  With that brief conspectus ‑ ‑ ‑

GORDON J:   What was the reference to what you just provided then in support of that proposition?  What was the case name and the page number?

MR GLACKEN:   Akiba v Commonwealth 250 CLR 209. I would have to provide the precise paragraph numbers ‑ ‑ ‑

GORDON J:   I would be very grateful if you did, Mr Glacken.

MR GLACKEN:   It is where each of the Judges refer to Harper’s Case.  Harper was the abalone case about abrogation of public rights to take fish.

GAGELER CJ:   Is the language “continue to exist” or “continue to be recognised”?

MR GLACKEN:   I would have to turn up the passage, but my recollection for Akiba is that they continued to exist, whereas public rights would be abrogated, and one reason why they continued to exist is this further dimension that they defined relationships between people and country.

GAGELER CJ:   I am not sure the case actually withstands that analysis, but you had better turn up the passages.

MR GLACKEN:   I do not have Akiba handy, but ‑ ‑ ‑

GAGELER CJ:   It is all right.  In due course.

MR GLACKEN:   We certainly cite the paragraphs in our written submissions.  I could turn that up.  The other feature which we mentioned yesterday, and the Gumatj respondents mentioned, was that when native title is surrendered or otherwise extinguished, and it can only be surrendered to the Crown because it is inalienable, and that is part of its accommodation with the new legal system – you cannot stand parallel or outside – when those events occur, there is an identifiable proprietary benefit conferred on others through the underlying title, the body politic being enlarged freed of that restriction – that is the burden metaphor – and by others being given rights to use the land in dispossession of the native title holders, who were previously, in fact, in lawful occupation.

With that rather brief conspectus, ultimately, we say there is no reason to suppose that the protection of property by section 51(xxxi) of the Constitution against arbitrary deprivation does not extend to rights that owe their existence to traditional law and custom that are recognised by the common law – that is, that may be enforced by legal and equitable remedies.  Perhaps, to put it differently, section 51, in our submission – as does the common law – can recognise or embrace the existence of native title as property as a fact, and can – importantly, for present purposes – recognise the consequences of its destruction as a fact of acquisition by virtue of the loss inflicted on native title holders, and the benefit and gain that destruction confers upon others.

As Justice Rich said in Dalziel 68 CLR 261 at 285, the operation of section 51(xxxi) is to be determined by general principles, not “artificial refinements”, and the point is Dalziel was the circumstance that what was seized by the Commonwealth, possession, had no equivalent as a common law estate or interest, did not mean that the act was outside section 51(xxxi).

Just while I have been given a note, and before I move on to other points, because I have also been given an orange light, Akiba, paragraphs 37 and 38 – Chief Justice French and Crennan and in the joint reasons at paragraph 74. Now, from recollection, and I stand to be corrected, one of the reasons given for distinguishing Harper’s Case was the different quality of native title in defining relationships to land, sea and resources.

GAGELER CJ:   Do you accept what is said at paragraph 10?

MR GLACKEN:   I will have to turn it up.  It was not in my select bundle for the lectern.

GAGELER CJ:   I am just looking at the last sentence of paragraph 9 and the first two sentences of paragraph 10.

MR GLACKEN:   That picks up what we discussed earlier about the example of Fejo.

GAGELER CJ:   You accept it.

MR GLACKEN:   That follows from Fejo.

GAGELER CJ:   Mr Glacken, what I am having difficulty with, and it is a highly technical difficulty, is I understand you say there are native title rights and interests that exist under traditional laws and customs. I understand that. It is at the point of what we refer to as “extinguishment” which involves the withdrawal of common law recognition, taken to be valid. You, I think, say that the continuing existence of the rights and interests under traditional laws and customs is not enough to give them the quality of property for the purposes of section 51(xxxi). I think that is what you are saying. If that is what you are saying, I do not understand how you treat them differently before and after what we refer to as an extinguishing Act.

MR GLACKEN:   The only difference in the analysis is that if a right is incapable of enforcement, then an act – I will put it differently.  If a traditional right is incapable of enforcement because one act under the legal system occurred, then a subsequent act affecting the enforcement of that right has no further legal effect.  So, in the example of Fejo, it was mentioned that there had been extinguishment by the fee simple grant.

At common law, native title rights as enforceability did not revive for that parcel of land, therefore they need not dwell upon a further question about the compulsory acquisition of that same parcel of land decades later, where, by the compulsory acquisition, all rights and interests would have vested in the Commonwealth freed.  So, the land would have vested in the Commonwealth, freed and discharged from all prior interests.  As I said, we need not dwell on that.

That follows Fejo.  Now, might I say, when I said yesterday that extinguishment may be entire or partial, entire is a very rare beast:   Fejo – fee simple; Wilson v Anderson – a lease that confers a right of exclusive possession.  Other than those examples and an act of compulsory acquisition of an entire area of land, taking in all interests, I cannot conceive of an act by our legal system that has that effect.  Just to put things in context.

Now, it remains, of course, and this is my point of referring to what Justice Rich said about section 51(xxxi), there remains the question of whether there is an acquisition of property, and whether the extinction or the act in issue, confers an identifiable proprietary benefit on others.

BEECH-JONES J:   Mr Glacken, I do not understand the Commonwealth to put that in dispute.  I am not sure about that, but I do not understand the Commonwealth to say that extinguishment does not carry some burden or benefit for the radical title.

MR GLACKEN:   No, I have not heard that submission.  And the case is, as your Honour put things yesterday, that it fits an acquisition, and the question is whether there is a sufficient analogy to inherit defeasibility of some sort.

BEECH-JONES J:   Well, that is what I thought Mr Moses was putting, I think.

MR GLACKEN:   Well, I think that it is the essential issue of the case.  Prima facie, there is an acquisition.  Now, we also meet that case by what I opened with, that there is no relevant difference between an interpretive presumption of non‑derogation from a grant and the clear and plain intention standard to take one set of rights out of 51(xxxi) and another set of rights within 51(xxxi).

In terms of what I said about Akiba, what I had in mind – at paragraph 37, Chief Justice French and Justice Crennan referred to Harper’s Case.  And at the very last line, a quotation from Justice Brennan in that case – I think it was Justice Brennan, yes – that the public right was “freely amenable to abrogation”.  But then their Honours say:

As the appellant submitted, Harper is not authority for the proposition that native title rights and interests, derived from traditional laws and customs and recognised by the common law, are as freely amenable to abrogation –

And then at 74, Justices Hayne, Kiefel and Bell, again referring to Harper, then over the page, six lines from the bottom of the paragraph:

The question decided in Harper was, therefore, radically different . . . This case concerns the relationship between legislation prohibiting commercial fishing without a licence and rights and interests which are rooted, not in the common law, but in the traditional laws acknowledged, and traditional customs observed –

Now, those are the passages that I had in mind when I said ‑ ‑ ‑ 

GORDON J:   So, the reason why – I think it might be the next paragraph is the one that you were probably talking about, about “continued existence”, where they quote the passage from Yanner.  Is that the passage you are relying on?

MR GLACKEN:   Yes, that it:

does not sever their connection –

Your Honours, I am told I need to go to ground 3, but can I perhaps just try and wrap things up by some points in our outline, in case I have not captured everything.

Paragraph 4 of our outline – can I perhaps just make this point, which is about a certain, if I might put it this way, trajectory of the case law.  When it is submitted that native title is from a different source or has different characteristics, can I just refer to three cases which, as I say, is a trajectory.  In Mabo (No 2), that sort of argument was rejected when it was said that native title rights are not property, that different source and characteristics was not a reason to deny its quality as property.  Secondly, in Mabo (No 1) it was said that it is not a reason to deny equality in treatment for the purposes of the Racial Discrimination Act, and that was repeated in Ward and the Native Title Act Case.

Then, thirdly in the Timber Creek Case, that equality in treatment was picked up in the passage at paragraph 75 that was read yesterday and, although much of Timber Creek was driven by the terms of the Native Title Act and the Racial Discrimination Act, at paragraph 23 the Court refers to the qualities of native title as material rights and rights with a spiritual connection. At paragraph 154, to cultural loss as a loss inherent in the thing diminished. So, in other words, although paragraph 75 and the reference to the cases has some background with the Racial Discrimination Act, ultimately it is the quality of native title rights that demanded a parity in treatment.

As I said, there is a trajectory in the case law by those three seminal cases.  Then, finally, at paragraph 8 of the outline we make a point about artificiality.  We take it from what was said by Justice Rich in Dalziel 68 CLR 261 at 285, that section 51:

is not restricted to acquisition by particular methods . . . It extends to any acquisition of any interest in any property.

Justice Starke used a similar phrase at page 290, that:

the construction of the Constitution cannot be based on such refinements.

So, in both Dalziel and then in Congoo, it was not fruitful to compare the nature of the right to possession seized by the Commonwealth with their stakes or interest in land recognised by the common law.  In each case, the right dispossessed the prior occupier, Mr Dalziel or the Bar‑Barrum People, albeit their interests continued to exist in form, if I can put it that way.  So, in that sense, section 51 has an operation of on general principle, not by reference to precise questions of doctrines of tenure and estates.

The point we seek to draw from that is to attempt to characterise laws that diminish native title to land and confer a benefit on others as something other than an acquisition of property reference to the common law concept of radical title dealing with when Great Britain acquired sovereignty in 1788 is an artificial refinement distorting the ordinary principles upon which section 51(xxxi) depends.

Now, more so when prerogative power – being the act of State for the acquisition of power – over land had been displaced by 1861.  There is a certain irony in calling in aid the doctrines of tenure estates, for in Mabo (No 2) at page 120, Justices Gaudron and Deane had noted that those concepts had been earlier brought in aid to legitimise dispossession.  Your Honours, I need to move on to ground 3, given the time, unless there be any large questions so far.

GAGELER CJ:   You move on, Mr Glacken.

MR GLACKEN:   Before I advance any propositions about ground 3, can I take the Court to the lease instrument and then the key statutory provisions.  Unfortunately, to go to the key statutory provisions is an exercise in what the Chief Justice said yesterday, or Wednesday, the nitty‑gritty, but it is unavoidable.  Could your Honours turn up the book of further materials.

BEECH‑JONES J:   Is that the appellant’s book?

MR GLACKEN:   Yes, I am sorry.  The lease is at page 155, and the print is rather small, but just readable, I hope.  This grant, and your Honours can pick this up in the second hand‑written entry, at about point 4 of the page ‑ ‑ ‑

BEECH‑JONES J:   What page?

MR GLACKEN:   Page 155.  At about point 4 of the page, there is a second hand written entry.  The pastoral lease covered an area of:

by estimation nineteen thousand two hundred and fifty (19250) square miles –

In today’s measure, 49,857 square kilometres.  In Wik, the Court was informed by the side of the leases there, which were in the order of 1,950 – I cannot recall whether it is square miles or square kilometres – so it is larger than the countries of Belgium and Denmark, not quite as big as Tasmania.  The second margin note on the left reads:

Exceptions and Reservations.

The first is:

EXCEPTING out of this lease to Aboriginal Inhabitants of the State and their descendants during the continuance of this lease full and free right of ingress egress . . . to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings . . . as they would have been entitled to do if this lease had not been made –

For that exception to operate, it is necessary to read with the second exception, in other words, that Aboriginal customary use also requires use of materials excepted from the grant in the second one.  The second relevant one, starting with an uppercase – this is the last five lines:

AND ALSO excepting and reserving out of this lease under His Majesty His Heirs and Successors all trees and wood standing . . . all minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and sand with full and free liberty –

In other words, with rights, which is a standard form of a mineral reservation in the colonies, that is, to preserve the minerals and rights to work the minerals:

and for the said Minister and his agents lessees and workmen and all other persons authorised by him or other lawful authority with horses carts engines and carriages –

et cetera, to work upon the land, over the page, and this extends to:

trees wood or underwood or bark . . . charcoal –

as well as working minerals, metals, et cetera.  The next exception is a power to resume the land if considered expedient, then a series of covenants, but it is point 6 or 7 of the power there is bold, upper‑case, “AND ALSO”.  So, it is a covenant that the lessee:

will not obstruct or hinder the holder of any mineral timber or other lease or licence granted by or on behalf of the Crown nor any other person lawfully authorised in that behalf in the exercise of the rights or powers conferred by such lease or licence –

Those provisions then work harmoniously with the statutory scheme, so, the point being that those provisions of the lease are designed to facilitate particular powers in the statutory regime.  If your Honours turn up volume 2 – I am sorry that is necessary to move from tab to tab for this background – but your Honours were taken to the Northern Territory Land Act 1899 at tab 43, and your Honours were referred to section 24 and schedule A.  It was noted that they are dealing with relations between the grantor and the grantee.  But just in terms of my point about what the exceptions and reservations do, first of all, at section 25:

No lease granted under this Act –

and this was only dealing with pastoral leases:

shall authorise the lessee to carry on mining operations of any description whatsoever upon the land –

but the exception to that is at tab 38 – and we have provided to the Court crier the two missing pages from this bundle – but at tab 38 ‑ ‑ ‑

GAGELER CJ:   Section 38?

MR GLACKEN: Tab 38 of this bundle – I am going to another Act. I have just been to section 25 of the 1899 Act by which a pastoral lessee is not authorised to carry on mining operations. But in the 1896 Act, which was not repealed – which is at tab 38 – at section 2, special permits:

to search for metals and minerals –

can be granted to a person who has taken up a pastoral lease.  We have provided the missing schedule – I hope your Honours have that.  Really, the point to be taken from the schedule is the form of the permit at clause 1 is that the pastoral lessee given the licence was, essentially, given an exploration licence and then required a mineral or gold lease or claim if it wished to remove the minerals.

At tab 44 is the Northern Territory Mineral Act 1888.  This applies to Crown land, defined in a way that would include pastoral land.  But section 4 provides for special licences to search for minerals, and it uses the sort of language found in the pastoral lease of referring to “assigns, servants and workmen”, and then section 9 deals with:

Leases of Crown lands –

as I said, defined in a way which would include pastoral land:

may be granted for mineral purposes –

GORDON J:   What is the short point of this, Mr Glacken? 

MR GLACKEN:   The short point, your Honour, is that the lease provisions and those statute provisions created a regime of control for the exploitation of minerals under licence.

GORDON J:   Is that any more to say that the reservations with which we are concerned in our lease recognised that there would be separate acts taken by the Crown in respect of minerals, and that reservation was protecting the ability of the Crown to do it by reference to the Acts you have just taken us to?

MR GLACKEN:   Yes.  There are some points that follow from that.  Unless and until that further act occurs, there is no relevant legal effect, including no relevant effect on native title rights.

GORDON J:   Is that to say there is no relevant inconsistent act with the continued existence of the native title rights and interests?

MR GLACKEN:   Correct.  This brings in play the passage that your Honour mentioned yesterday at the bottom of page 64 in Mabo (No 2), where Justice Brennan said an:

intention to extinguish . . . is not revealed by a law which merely regulates the enjoyment ‑ ‑ ‑

GORDON J:   Sorry, could you just speak more clearly?

MR GLACKEN:   That an:

intention to extinguish . . . is not revealed by a law which . . . creates a regime of control that is consistent with the continued enjoyment of native title.

So, it is a regime of control. 

STEWARD J:   That is the question:  is this a system of control which is consistent with native title? 

MR GLACKEN:   Yes, and we say it is.  Just on that passage there, could I give your Honours some other citations to similar effect.  In Mabo itself, pages 111 and 196 – but that concept that a statutory scheme is not inconsistent with continued native title is also picked up in Congoo at paragraph 32, Akiba at paragraph 33, and Yanner v Eaton at paragraph 115.

STEWARD J:   I, perhaps, should have said, consistent with the pleaded native title right in issue here, which is the right to natural resources.

MR GLACKEN:   A non-exclusive right ‑ ‑ ‑

STEWARD J:   A non-exclusive right, yes.

MR GLACKEN:   ‑ ‑ ‑ to use natural resources.  Now, I am ‑ ‑ ‑

EDELMAN J:   So, non-exclusive right against whom?

MR GLACKEN:   As against anyone other than, for example, someone who is granted a mineral or timber license.  So, non‑exclusive against the pastoralist – the pastoralist has no right to take those substances unless licensed.  Now, it is no different from a mineral lease in Brown.  In the event of those licenses being granted, then there could be competition in their exercise. 

STEWARD J:   But in Brown, it was not the competition over the minerals themselves, so ‑ ‑ ‑

MR GLACKEN:   That is so.  It is only once a license to take the minerals, or trees, or timber is granted, that will then result in a potential competition between the exercise of the two sets of rights. 

STEWARD J:   Do you accept that the legal regime that you have referred us to for the regulation of minerals was intended to be an exhaustive regime?  And if not, why?

MR GLACKEN:   In the sense that there is certainly no prerogative left.  Now, the notion that somehow the Minister who is based in Adelaide is going to take a horse and buggy to the Gove Peninsula with a shovel and pick is somewhat unreal, but the short point is that, as from 1861, the powers to deal with the land were statutory and so, in that sense, they are exhaustive.

STEWARD J:   Thank you.

EDELMAN J:   The relevant reservation and exception in the 1903 lease, you say, as I understand it, then, is effectively a licence as between the lessee and the Crown for the Crown to be able to do particular acts; it is a liberty rather than a property right against the world.  Is that right, or not?

MR GLACKEN:   That characterisation may not matter.  What matters is defining the relationship between the grantor and the grantee.

EDELMAN J:   But the characterisation may be very, very important when one is considering competition with native title rights.

MR GLACKEN:   The competition will only arise once the further licence to exploit is given.

GORDON J:   But that is because, on your construction of the reservation, as I understand it, it is dealing, in that respect – that is, the reservation – only between the lessor and the lessee.

MR GLACKEN:   Yes.  Well, it is not only because of that ‑ ‑ ‑

GORDON J:   Sorry, I understand that.  You are right to correct me.  It is because it is identifying the relationship between the lessor and the lessee in respect of that aspect.

MR GLACKEN:   Yes.  And it is holding back rights.  The relevant rights of the Crown at that time were conceived as being beneficial ownership – whether perceived in the light of Mabo (No 2) as radical title is, in our respectful submission, neither here nor there.  On either analysis, it is a holding back.  Can I say something very quickly about Brown’s Case.

EDELMAN J:   I just do not understand that submission that it can only be a holding back if it is a positive grant of a liberty to do something that would not otherwise have existed.

MR GLACKEN:   My point is that it does not convert or create something that did not previously exist.  It is not conferring or – so, we reject the Northern Territory case that somehow it is creating a right in the Minister as a representative of the Crown to explore and dig.

GLEESON J:   So, it is leaving for another day the vesting of property in the mineral rights of the kind that happened in Western Australia in the 1890 Act.

MR GLACKEN:   Yes.  Can I make these short points about Ward.

GAGELER CJ:   We will do that after the morning adjustment.

MR GLACKEN:   I am a bit concerned for Mr Hill’s time.

GAGELER CJ:   So am I.  And you will take that into account.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

MR GLACKEN:   Your Honours, on time, we are told that we could chip in a little bit to the respondents that follow us and still stay within the program.

GORDON J:   Could you please speak up, Mr Glacken?  It may be that you just need to either – speak a bit louder, please.

MR GLACKEN:   On time, we are told we can chip in to the respondents that follow and we will still be within the program.

Can I ask your Honours to turn up – probably the easiest way of completing a number of points, if your Honours have both our outline of oral argument and Ward 213 CLR 1, which has its own volume in the joint book of authorities, volume 17. I am going to ask your Honours to turn to paragraph 285. For context, it is the proposition put at paragraph 11 of our outline, where we underline the word “and”; that we are concerned with rights to use the land and its natural resources. It picks up from the point made in questions yesterday or the day before about sort of the artificiality of speaking of a right to substances separate to the land.

Just to refresh our memories, and having regard to that statutory scheme that I have just walked through, if your Honours turn up paragraph 285, there is a quotation from Newcrest Mining in turn referring to what Lord Cairns said in Gowan v Christie of what is a “mineral lease” – and it is a right:

to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil.’

In reference to what Justice Windeyer said in Wade:

the grant by the Crown of a mining lease of an area of private land –

We normally understand it to be alienated land:

that it was ‘really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years –

It is only the act of taking and removing from the soil that one can speak of rights passing to the holder of the mineral lease or licence.  I just want to say that to put in perspective the ‑ ‑ ‑

BEECH‑JONES J:   You mean the proprietary rights?  That is the only proprietary right.

MR GLACKEN:   Yes.

BEECH‑JONES J:   So, what is before that?  You just go, is it a licence or a contractual right or a statutory right?

MR GLACKEN:   By the grant of the mineral lease or licence.

EDELMAN J:   It is called a mineral lease or a right to the minerals, but what it is, is either a licence to take what is then converted into a mineral, or it is a profit à prendre.

MR GLACKEN:   Yes, well, the statutory creatures of mining leases tend to be somewhat complicated.  As Justice Windeyer said in Wade, there are many species of statutory mining leases unknown, I think he said, that sort of defy common law conceptions.  But the essential point is that it is upon the grant of that lease, licence or authority, for someone else to go on to the land and to remove the minerals that, upon removal, the holder of that authority then acquires rights and then may separate it from the land.  That is why we say there is a certain artificiality in this whole argument, as if substances generally – but one particular substance in the land is somehow in esse or in specie something separate from the land at the time of the grant of the pastoral lease. 

Then, can I return to Justice Gleeson’s question about what the body politic is doing.  At paragraph 14 of our outline, when we say Mabo (No 2) does not usurp that understanding, I might need to say something about Brown’s Case (1847), and the dicta in the New South Wales Aboriginal Land Council Case, but your Honours will note that it seems a little strange that if a reservation which was required under legislation from the late 19th century somehow gave the Crown – the body politic – property in the minerals it did not have, that there was then later in a specific provision in 1939 that all minerals shall become the property of the Crown, unless granted in fee without reservation.  What we say about the ultimate analysis of the native title rights is that if there be an impairing or extinguishing Act, it is that legislation in 1939, not the earlier holding back of rights to grantees ‑ ‑ ‑ 

GORDON J:   That was the position that was adopted in Wick as well – because they had a positive assertion in the Wick legislation, did they not?

MR GLACKEN:   Wick had exactly the same reservations, or more or less the same reservation, that we are talking about now.  The existence of the reservations was a reason to deny that a pastoral lease had a quality of exclusive possession to the land – we would say denied any quality to the land and its resources.  That was the main point that the Full Court made at paragraph 108, that a key reason for continuing consistency with native title is the existence of the reservations.  And it is somewhat of a paradox to try and convert those into an extinguishing event when the instrument embodying the reservations has no relevant effect.

In Ward, although it is obiter because there was no establishment of a separate right to use native title resources – the right claimed was an exclusive one, I should say – in the case of Western Australia, the joint reasons reached these conclusions, which we say have a parallel to the Northern Territory history.  At paragraph 378 ‑ ‑ ‑ 

BEECH-JONES J:   Of which case, sorry?

GORDON J:   Ward.

BEECH-JONES J:   Of Ward?

MR GLACKEN:   Ward, paragraph 378. And this is answering Justice Gleeson’s question. Their Honours set out section 117 of the Mining Act1904, and subsection (1) used the expression, all:

precious metals . . . of all land . . . whether alienated or not alienated from the Crown, and if alienated whensoever alienated, are the property of the Crown.

Then subsection (2) had an exception for particular fee simple grants before 1899.  The equivalent provision in the Northern Territory is section 107 of the Mining Ordinance 1939.  It is in joint book volume 2, tab 30.  It too had a proviso like subsection (2), although slightly different.  Its proviso was if land had been alienated in fee, property would depend upon the terms of any fee simple reservation because of a history in South Australia that there were some absolute fees.  And, indeed, the fee simple in Fejo was absolute, not qualified in that way.

What their Honours said at paragraphs 383 and onwards is they adopt the conclusion of the Full Court majority that it would have been extinguishment by section 117 of the Mining Act.  At 384, they refer to the common history of management of wastelands of the colonies.  Then they step out at paragraph 384, the reasoning in this obiter passage, and after saying that all minerals were the subject of “legislative disposition”:

Reserving them to the Crown and vesting “property” in them in the Crown had several consequences.

Now, the quotation takes the word “property” from section 117 of the Mining Act.  The first is no reason to suppose any difference of treatment between royal metals and others:

There is another matter before this Court that is pending that raises a question of whether section 52 is subject to 51(xxxi), concerning the Russian embassy.  We say that that will provide a vehicle to assess that matter, the Court should not proceed on the assumption that we have conceded or accepted that relationship.

The second point I address is on the assumption against us, that, as Mr Lenehan puts it, the only power to acquire property the Commonwealth has is in section 51(xxxi). That means, notwithstanding all of the cases I took the Court to under my proposition number 1, which all showed case after case where people thought section 122 included such a power, in fact, after section 51(xxxi) was drafted, there was no power in section 122 to acquire any property. That is the case, that is Justice Gummow’s position, that is the position of all the respondents.

I just want to follow that through for just a moment. That means the only power to acquire property – this is the first proposition – is for the good government of the Commonwealth, because it is only in 51(xxxi). If section 122 contains no power to acquire property at all, then a self‑governing Territory will need to be delegated power under section 51(xxxi) in order for it to have any power to acquire property, because that is the only power that the Commonwealth has, so all that it can ever give to a Territory is its 51(xxxi) power.

We say that the Territory then will, in respect of that, be exercising Commonwealth legislative power, and that, we would say, is inconsistent Capital Duplicators (No 1), where it is not a delegate.  But in fact, in relation to some aspect of its legislative power on the view of the respondents, it is a delegate.  Further, the Territory legislature would not be making laws for the good government of the Territory, it would be making laws for the good government of the Commonwealth as a delegate of the Commonwealth Parliament.

Further, if that argument is correct, that logic should apply to any new State. Any new State created under Chapter VI would, on the same assumption, only ever be able to acquire property under a delegated power. We say that on our view, section 122 is itself a source of power, and subject to the circumstances where one law is supported by both section 122 and 51(xxxi), we accept, at that point, that there is an intersection. One has to resolve whether or not the just terms constraint binds or applies to that law, and we say four Judges in Newcrest said that it does; we accept that it does.

It is put against us repeatedly that our argument involves some disjointed approach to the Constitution.  We accept that the pure Teori Tau argument – by which I mean section 122 is an entirely unconstrained power that is not abstractive at all – is quite a disjointed view on a spectrum. That is not our argument. All of the quotes from all of the cases and all of the Judges in Newcrest and Wurridjal that talk about disjointed, they are all rejecting a then‑Commonwealth argument, which is not argument, it is not the Newcrest argument.

Our argument sees not only the matters as being closely integrated, but also gives pre‑eminence to 51(xxxi) whenever there is any overlap. The only place left is where section 122 allows for acquisitions of property that section 51(xxxi) does not allow for. That is the only space where the just terms constraint is not opposed, which we say is, indeed, an orthodox view of an Anthony Hordern approach, contrary to my friend Mr Lenehan’s submissions.

My final point deals with the relationship between our grounds.  If the Court were to accept our submission that Wurridjal did not overrule Teori Tau, then that case, we say, remains good law.  If the Commonwealth succeeds on ground 2, it is then not necessary, and probably inappropriate, for the Court to determine ground 1, and also ground 3 would also not need to be determined.  If the Commonwealth fails on ground 2, then the Commonwealth ‑ ‑ ‑

GAGELER CJ:   I thought we were told ground 3 has to be determined anyway.  Am I wrong about that?

MR LLOYD:   My understanding is that if ground 2 is upheld, because all of the grants – that the section 107 grant and the five special mineral lease grants all fall within the ambit of the relevant sovereign power – would all be valid and they would not need to be validated, so they would fall away.  If we are unsuccessful on grounds 1 and 2 such that the grants are invalid, then ground 3, if it were successful, would mean that the section 107 issue would fall away in terms of the constitutional point.

But the special mineral leases do not relate – notwithstanding their names – to minerals, they relate to what is done on the land and the interference on the land, because, even on the pleaded case, it is accepted that the 1939 vesting acquired all the minerals.  So, by the time the special mineral leases were gone, the case is you are seeking damages in relation to the impact of the mines on general society, not on the minerals.

EDELMAN J:   In other words, ground 1 or ground 2 would be an entire success, but ground 3 would be a partial success for the Commonwealth. 

MR LLOYD:   Correct. 

BEECH-JONES J:   Just on that, sorry, ground ‑ ‑ ‑

MR LLOYD:   And also ground 3, success on ground 3 still means that ground 1 or ground 2 needs to be considered.

BEECH-JONES J:   So, if you fail on ground 2 you would still need to determine ground 1 because there may be other parts of this claim that – are there not are other parts of this claimed that could be supported under a Commonwealth head of power?  So, if you succeeded on your ground, other things would still need to be decided.

MR LLOYD:   Not on the matters covered by – I loosely think there was a demurrer, but on the special question.  So, the matters on the special questions do not raise any other issue.  What I was going to say, finally, is that if the Commonwealth fails on ground 2, then the Court should

approach ground 1 on the basis that – and this is also on the assumption that we were successful that Wurridjal did not overturn Teori Tau – overruling Teori Tau would lead to very considerable inconvenience and consequences. 

The Native Title Act was enacted while Teori Tau was unquestioned.  So, when the Commonwealth validated every Act in the Northern Territory it would have reasonably have thought, on the basis of Teori Tau, that it would not face the massive amount of validation and compensation.  It gave up the ability to rely upon statutes of limitation which would have otherwise been available if it did not do that.  We say that is a significant issue and should be brought into the balance in deciding whether or not to overrule Teori Tau.

GAGELER CJ:   Mr Lloyd, we have to be clear about the relationship between the questions and what has to be answered, if one question is answered one way or another.  You should reduce to writing the flowchart of questions and answers, you should discuss it with your opponents, and if there is any difference between you, we should be alerted to that difference.

MR LLOYD:   Certainly, we will do that, your Honour.

GAGELER CJ:   And that should occur as soon as possible. 

MR LLOYD:   Certainly.  May it please the Court, we have no further submissions.

GAGELER CJ:   Thank you.  The Court will now consider its decision in this matter and will adjourn until 10.00 am on Tuesday, 13 August in Adelaide.

AT 4.34 PM THE MATTER WAS ADJOURNED