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

[2024] HCATrans 48

[2024] HCATrans 048

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 WEDNESDAY, 7 AUGUST 2024, AT 10.02 AM

Copyright in the High Court of Australia

GAGELER CJ:   The appearances will be taken as they appear in the Court list.

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MR S.B. LLOYD, SC, MS N. KIDSON, KC and MS C.J. KLEASE for the appellant.  (instructed by Australian Government Solicitor)

MR A.R. MOSES, SC appears with MR K.S. ANDERSON and MS J.D. ALDERSON for the first respondent.  (instructed by Bowden McCormack)

MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory, appears with MR S.J. WRIGHT, SC and MR L.S. PEATTIE for the second respondent.  (instructed by Solicitor for the Northern Territory)

MR C.L. LENEHAN, SC appears with MR T.M. WOOD for the 25th to 28th respondents.  (instructed by Mills Oakley)

MR S.A. GLACKEN, KC appears with MR G.A. HILL, SC and MS J.R. WANG for the 29th and 32nd respondents.  (instructed by Northern Land Council)

MS R.J. WEBB, KC appears with MS C.I. TAGGART for the 34th respondent.  (instructed by Crown Law (Qld))

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory, appears with MS H. YOUNAN, SC and MS L.A. COLEMAN on behalf of the Attorney‑General for the Australian Capital Territory, intervening.  (instructed by Government Solicitor for the Australian Capital Territory)

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia, appears with MS A.B. SANCHEZ‑LAWSON on behalf of the Attorney‑General for the State of Western Australia, intervening.  (instructed by State Solicitor’s Office (WA))

There are submitting appearances for the fourth to 10th, 12th, 13th, 16th, 19th, 21st to 23rd, 31st and 33rd respondents.

There are no appearances for the third, 14th, 15th, 18th, 20th and 30th respondents.

GAGELER CJ:   The Court has also been provided with a proposed schedule, which sets out the agreed times for the presentation of oral argument, and we will proceed on that basis.

MR DONAGHUE:   Thank you, your Honour.

GAGELER CJ:   Mr Solicitor for the Commonwealth.

MR DONAGHUE:   Your Honours, when this Court handed down its momentous judgment in Mabo (No 2), it overturned the fiction that before British settlement, the lands and waters of Australia belonged to no one, and held that the common law of Australia was capable of recognising rights derived from the traditional laws and customs of the indigenous people who had resided in this country for at least 60,000 years.  It was not lost on the Court in Mabo (No 2) that the taking of that momentous step might have implications for the validity of grants of interest in land made following British settlement and might have implications for compensation to indigenous people whose native title had been impaired or extinguished by those grants.  Indeed, the question of how to deal with those two issues divided the Court in Mabo (No 2).

The way that those issues were decided by the majority in what is, in our submission, the greatest judgment of one of the great Judges of this Court, Sir Gerard Brennan, was that native title did not invalidate inconsistent grants if they occurred prior to the commencement of the Racial Discrimination Act 1975, and that no compensation was payable as a result of such grants, even if they extinguished native title.  The reasoning that led Sir Gerard to that result is, in our submission, important to the disposition of ground 2 of the appeal, and for that reason I propose to spend quite some time addressing it this morning.

The effect of Mabo (No 2) was that none of the Australian States or the colonies that preceded them were exposed to liability to pay compensation for granting interests in land or for appropriating land for themselves, provided that occurred prior to 1975.  On the commencement of the Australian Constitution in 1901, that was the position throughout the entire continent of Australia, which, of course, at that time, did not include any Territories, and it follows that that was the position in respect of the geographical area now known as the Northern Territory.

That remained the case for the 10 years following Federation, so any native title that existed with respect to lands and waters in the area now known as the Northern Territory was susceptible to extinguishment by the exercise of the Crown sovereign power to grant interests in rights or to appropriate land to itself.  The Governor of South Australia, in administering land in the Territory under the relevant Act, which was the Northern Territory Crown Lands Act 1890, could validly grant interests in land and dedicate or reserve unalienated land to itself, irrespective of native title, just like could occur in all of the other States.

The issue in this case is whether the fact of the surrender of the Northern Territory to the Commonwealth on 1 January 1911 fundamentally changed the position with respect to native title rights and interests to land and waters that happened to be situated in the area that had been surrendered to the Commonwealth, or perhaps more specifically, in such parts of the lands and waters that happened to be on one side of the newly‑demarcated border between the Territory on the one hand and the surrounding States of South Australia, Queensland and Western Australia.  The claimants’ case, as upheld by the Full Court, is that the effect of the surrender of the Northern Territory to the Commonwealth was to make native title rights in the Northern Territory immensely more economically valuable than native title rights anywhere else in Australia.

Any native title that remained on the South Australian side of the border remained susceptible to extinguishment without compensation, but any native title on the Northern Territory side of the border became, they say, protected by section 51(xxxi) of the Constitution such that thereafter, any exercise of the sovereign power to grant interests in land or to alienate land to itself – including, for example, by building roads or other infrastructure, or by granting lands as the population of the Territory grew – would be wholly invalid if it would have impaired or extinguished native title, unless just terms was paid.  So, it is not just that there was an entitlement to compensation, the grants were invalid.

Of course, in practice, it was most unlikely that compensation would have been paid for two obvious reasons. First, the existence of native title was not known until 1992, decades after the last of the pleaded Acts in issue in this proceeding; and second, section 51(xxxi) was thought to be irrelevant to the Territories, that having been the position emphatically infirmed by the unanimous Court in 1969 in Teori Tau, and not doubted at all until five years after Mabo (No 2) was decided in 1997 in Newcrest.

So, the effect of the claimant’s argument is that for the period from 1911 through to the grant of self‑government to the Territory in 1978, a vast but indeterminate number of grants of interest in land in the Territory were invalid.  Now, I mention this with hesitation because I hope not to be diverted, but we have filed – in our submission, the Court does not need evidence to draw the basic inferences that underpin what I just said:  specifically, that large parts of the Northern Territory are likely to be areas where native title exists, or did exist, as at 1911; two, that given the substantial growth in the population of the Territory over that period of time, many grants of interest in land or exercises of power by the Crown to appropriate land or minerals to itself are likely to have occurred, and that that would be inconsistent with native title. 

If, however, your Honours would be assisted by evidence to underpin those propositions, in our submission, really by way of constitutional fact, we have provided and filed an affidavit of Mr Gavin Loughton, affirmed on 1 July 2024, which exhibits three publicly available documents.  Two of them are maps created by relevant government departments – one around 1885, the other around 1916 – and those maps provide a pictorial representation of the type and geographical distribution of tenures across the Northern Territory as at those two dates.  The third document is a publication by the Australian Bureau of Statistics, which gives your Honours an indication of the growth of the Territory, or more specifically, the non‑Indigenous population growth during the period from 1911 to the present, including up to 1978.

Paragraph 16 of Mr Loughton’s affidavit identifies the inferences that we submit can be drawn from those documents, but the basic point, in our submission, is what can be seen – your Honours do not need to turn to it – from the second of those maps, the 1916 map, where ‑ ‑ ‑

EDELMAN J:   It is a little bit more than constitutional fact, is it not?  There are inferences that are sought to be drawn which may be contested.

MR DONAGHUE:   They may be contested, your Honour.  As I understand, the first respondent has made its position clear that it does not accept the probative value of what is in the affidavit, but it does not object to us putting it before the Court to gain such assistance as your Honours can.  Our point, essentially, is that the second map shows that, with the exception of the area around Darwin where you can see in green on that map that there were some grants of freehold title, nowhere else in the Territory do you see grants of freehold.  There were pastoral leases in parts of the Territory, and the rest of the Territory was available for lease for various different sums of money.

We say that is helpful because that provides a solid basis to infer that very little extinguishment of native title is likely to have occurred as at the date when the Commonwealth accepted the surrender of the Northern Territory, so that, in our submission, it provides an evidential foundation for the proposition that everything that happened after the Commonwealth accepted the Territory is at risk of invalidity because it is likely that the balance of the Territory was land that was subject to native title.  Now, I cannot prove that ‑ ‑ ‑

GORDON J:   It is common ground, is it, that this was not before the court below? 

MR DONAGHUE:   It is.

GORDON J:   Why not?

MR DONAGHUE:   Well, in part, your Honour, because the court below was constrained as a matter of authority on some of the issues – and the debate was not on the issue I can see that this is most relevant to, but it was not before the court below, no.  But, in my submission, we provided it to provide assistance to the Court, largely as a matter of constitutional fact and, as I say, in my submission, your Honours could draw the relevant inferences without it.  Indeed, a similar submission to the submission I am now making was made in Newcrest without supporting evidence.  But I do read the affidavit and invite your Honours to gain such assistance from it as you are minded to.

GAGELER CJ:   Mr Donaghue, we will reserve our position on this after and decide on the status of the affidavit after hearing from the respondents.

MR DONAGHUE:   If the Court pleases.  On the case advanced by the claimants and accepted by the Full Court, on the commencement of the Native Title Act in 1994, the effect of that Act would have been to validate all of the grants that I have just indicated or otherwise exposed to be invalid at the price of the Commonwealth becoming liable to pay compensation in respect of all of those invalid grants or invalid reservations to itself over the period stretching across the whole timeframe, from 1911 to 1978, with interest.

So, we are exposed, it is suggested, to compensation with respect to grants throughout the whole Territory and possibly a hundred years or more of interest.  It is on that basis that our submission is that your Honours can comfortably proceed upon the basis that the effect of the analysis is that native title holders, or traditional owners who have native title extinguished in the Territory, have an interest that is vastly more economically valuable than any other native title holder in Australia.  Because, as I have said, for everybody else, prior to 1975, it is clear that there is no compensation obligation.  Our submission ‑ ‑ ‑

EDELMAN J:   So, when you say “for everybody else”, you mean for all other Aboriginal people?

MR DONAGHUE:   I mean for native title holders in any of the States.

EDELMAN J:   Yes.  But not necessarily for non‑native title holders who had property rights in what became the Northern Territory.

MR DONAGHUE:   Your Honour, for reasons I will develop, our argument does not touch them.  Our argument is quite specific.  It is that native title is exposed only to what I am going to call the relevant sovereign power – the power to grant interest in land or to appropriate land to itself.  Native title is otherwise, on our case, protected by 51(xxxi) in the same way as any other property rights within the Territory.  So, it is only because of that specific characteristic of native title that we submit that there is a relevant difference.

GORDON J:   Sorry, you just fell away then.  I did not hear what you said.

MR DONAGHUE:   I am sorry, your Honour.  The point that I was – I was foreshadowing where I am going to come.  The basic proposition is that native title holders in the Territory are, on the case against us, entitled to vast compensations by reason of 51(xxxi), including interest, that is not available to native title holders in any other part of Australia.

GAGELER CJ: But you could say the same about property owners. You do not need to confine the proposition to native title holders so far as section 51(xxxi) is concerned. If the position adopted by the Full Court of the Federal Court is correct, then any property owner in a Territory is in a vastly superior position to a property owner in a State.

MR DONAGHUE: Your Honour, that is true insofar as – if your Honour is putting to me that the States have a power to compulsorily acquire property from anyone without the payment of compensation, I accept that is true. But the argument that I will come to develop shortly is that the differentiation to which I am drawing attention is a differentiation as to the characteristic of the rights in question. Native title, having been recognised by the common law – for reasons I will develop in a moment – only on the basis that it was inherently susceptible or defeasible to the exercise of what I am calling the relevant sovereign power – section 51(xxxi) is said to have changed the character of the property in the Territory by stopping it being defeasible to the exercise of a power which is a characteristic of native title everywhere else – that is the shorter point.

GLEESON J:   It is not really – why is it a change to a characteristic of the native title rights?  It is a change to the scope of the power.

MR DONAGHUE:   Your Honour, without seeking to avoid that question at all, can I develop our submission to explain the answer to that because if I try to do it shortly, I will lose all structure.  I am going to develop that at some length.

Our submission, your Honours, is that the Constitution does not mandate what we suggest is an arbitrary and invidious distinction – one Justice McHugh thought might be socially divisive – between the rights of native title holders in the Territory and those elsewhere in Australia, for two reasons which are entirely independent of one another and which are the subjects of grounds 1 and 2.

The first reason, which is ground 2, is that Justice Brennan’s reasoning in Mabo, which is reflected in numerous subsequent decisions of the Court, establishes that the common law was able to recognise native title only on the basis that it is susceptible to a particular kind of sovereign power, being the power to grant interests in land or to appropriate unalienated land to itself.  For that reason, native title as a legal right recognised by the common law by the Australian legal system is, and always has been, inherently defeasible to the exercise of that power.  That susceptibility, being what the Court has called a characteristic of the recognition of native title as property by the Australian legal system, the exercise of the power cannot involve an acquisition of property; it is the occurrence of a contingency to which the property has always been subject.

EDELMAN J:   Do you say that in relation to native title over land or do you say that in relation to all native title rights over waters, fish, chattels?

MR DONAGHUE:   So, where what I am calling the relevant sovereign power does not extend, the argument would not hold, and I think – and I expect this is underpinning your Honour’s question – in relation to offshore native title, then the Court has said, well, there is no radical title there and there is no inherent sovereign power to grant interests in that area, so the argument would not extend.

EDELMAN J:   It was a narrower question.  So, native title, for example, that arises from the taking of fish, for example, the possessory right over the fish and the content of it looks almost identical to the possessory right recognised by the common law, but your submission is that the native title right to possession of fish, for example, is inherently defeasible in a way that common law rights to possession are not.

MR DONAGHUE:   I think, your Honour – I will consult with my colleagues and come back to you if this answer is wrong, but, your Honour, in my submission, the answer is that Justice Brennan’s limit on the recognition was not with respect to any aspect of property rights; it was that native title could not be recognised if it was inconsistent with the two powers I have identified:  to grant interests in land and to appropriate land to itself.

EDELMAN J:   So, it is just native title to land you are concerned with?

MR DONAGHUE:   Yes.  I will come back to you if I need to qualify that answer, your Honour.  So, that is ground 2.

Ground 1, which Mr Lloyd will address, is entirely independent and is the argument that a law of Commonwealth Parliament that has no constitutional support other than section 122 of the Constitution is not subject to constraint in 51(xxxi).  That, of course, was the legal position emphatically supported by the unanimous Court in Teori Tau.  The correctness of Teori Tau then divided the Court 27 years later in Newcrest where Teori Tau was not friendless.  Chief Justice Brennan and Justices Dawson and McHugh all strongly reaffirmed the correctness of Teori Tau, but the issue, of course, again divided the Court 12 years later in Wurridjal.

The precedential status of those decisions – particularly Teori Tau and Wurridjal – loomed large, for obvious reasons, in the Full Federal Court, and they are again in play in this Court.  Although, our ultimate submission is, given the uncertainty and the conflict in the authorities, it may well be appropriate for this Court simply to decide the matter as a question of principle, rather than to fight about ratios.

GAGELER CJ:   Can I just ask about the relationship between these grounds?  You are taking us through them – ground 2, ground 1, ground 3.

MR DONAGHUE:   Yes.

GAGELER CJ:   It is your submission that each of those grounds necessarily has to be addressed and determined in this appeal?

MR DONAGHUE:   So, if the Commonwealth wins on either ground 1 or ground 2, then it would not be necessary to decide the other ground, because the appeal would be allowed on that basis, because the compensable acts could not give rise to an obligation for compensation under 51(xxxi) for either of those reasons.  Ground 3 arises even if we lose on grounds 1 and 2.  And I may leave it to Ms Kidson to explain this on ground 3, but there is a possible contingency where ground 3 might arise even if ground 1 or 2 have been decided in the Commonwealth’s favour.  But, largely, grounds 1 and 2 would dispose of the appeal.

GORDON J:   Can you just explain to me what that is?

MR DONAGHUE:   What the contingency is?  The reason I said I would leave to Ms Kidson is I cannot.

GORDON J:   Okay.

EDELMAN J:   Putting the contingency aside, is ground 3, in one sense – without disturbing the way you present the argument – ancillary to grounds 1 and 2, in the sense that ground 3 is what establishes the existence of a native title to which ground 1 and 2 are concerned?

MR DONAGHUE:   There is substantially so because the claim is mostly about mining rights.  So, if the native title does not extend to the mining rights, then that removes a lot, but not everything.

GORDON J:   But that is not before the Court, that issue.  In other words, there has been no determination of whether or not there are native title rights and interests and whether or not they include the minerals in the land.

MR DONAGHUE:   But ground 3, your Honour, is that the effect of the reservation in the 1903 pastoral lease granted by South Australia before surrender ‑ ‑ ‑

GORDON J:   I accept that – and that is the reason why the question from Justice Edelman may be important.  If you start by looking to see what the inconsistency is, even on your test, do you not have to address ground 3?

MR DONAGHUE:   If we are right about ground 3, then even if there was native title in the claim area, and even it would otherwise have included the right to take bauxite, that right will have been extinguished.  If that is so, then a large part of the compensation claim will have been removed.  But there are, as I understand it – because of the inclusion in the compensable acts of five special mineral leases – issues that extend beyond what would be covered by the reservation in the 1903 lease.  That is why grounds 1 and 2 are not rendered redundant if we win ground 3.

GORDON J:   I thought that the argument was that we determined ground 3 and that, therefore, had a flow‑on effect for other ‑ ‑ ‑

MR DONAGHUE:   If ground 3 – sorry, your Honour.

GORDON J:   And, therefore, that we did not need to look at those other grants because they were determined by the answer to ground 3.

MR DONAGHUE:   By ground 3, indeed.  So, Ms Kidson confirms that the way they fit together is that the vesting of minerals by section 107 of the 1939 Ordinance is affected by ground 3 but special mineral leases are not.  So, they remain in play even if we win ground 3, and that is why your Honours would need to decide at least one of grounds 1 and 2.  I hope that makes sense in terms of how things fit together.

GAGELER CJ:   Yes.

BEECH-JONES J:   Mr Donaghue, you say that in this native title claim there are other interests that had nothing to do with minerals.  Is that right or not?

MR DONAGHUE:   I do not say that, but I believe that to be the case.

BEECH-JONES J:   Right. 

MR DONAGHUE:   But I also, as I understand it – the overwhelming part of the compensation claim, which your Honours now have part of before you, is about minerals.

The final point I would make by way of introductory submissions is to emphasise that since 1 January 1994, the inherent defeasibility of native title to the exercise of the relevant sovereign power upon which our whole argument on ground 2 depends, has been removed by the Native Title Act.  So, as a result of that, since 1994 – and into the future – native title can only be impaired or extinguished in the limited circumstances permitted by the Native Title Act, and nothing that I am going to put to your Honours in this case changes that.  It does not change things for the future.  The present litigation is looking back in time to quite a long time ago before the Native Title Act and before the Racial Discrimination Act and calls for the Court to apply the principles articulated in Mabo (No 2) unaffected by those two statutes.

So, while the case is of very great importance, it is of very great importance because of the consequences of those old past Acts, not in terms of the way that governments going forward ‑ ‑ ‑

GORDON J:   I assume you will come to it, but there is at least some argument that although the Native Title Act in 1994 was forward‑looking and not backward‑looking, at least in one aspect, that the common law at least looks to see and is informed by the statutory regimes that have been put in place.

MR DONAGHUE:   Well, in my submission, your Honour, it cannot be the case that statutory regimes put in place in 1994 change the legality of what happened when the compensable acts occurred decades beforehand.  In my submission, your Honours should rule upon the validity of those Acts on the common law as articulated in Mabo (No 2), and that is what I am about to invite your Honours to do.

So, my part of the oral submission, ground 2, will involve me seeking to establish three propositions, each of which have two paragraphs of our oral outline.  The first proposition is that the basis upon which the common law permitted the recognition of native title was the basis explained by Justice Brennan in Mabo (No 2), and it is that native title is susceptible to extinguishment or impairment by exercise of the sovereign power to grant interests in land, or to appropriate unalienated land to itself.  And because that is a mouthful, hereafter I propose just to refer to that as the relevant sovereign power, but that is what I mean.

GAGELER CJ:   Which can be either legislative or as permitted by statute Executive.

MR DONAGHUE:   Yes, although Justice Brennan says in Australia it has long been exclusively statutory.

GAGELER CJ:   Yes.

MR DONAGHUE:   But it can be both.   That is outline paragraphs 2 and 3.  The second proposition is that in Newcrest, Justice Gummow with the concurrence with the other three Justices who joined in the order of the Court, correctly held that the inherent susceptibility of native title to the exercise of the relevant sovereign power meant that the exercise of that power would not constitute an acquisition of property within 51(xxxi).  Contrary to some of the submissions put against us, that does not deny that native title is property, and it does not deny that the exercise of other powers to extinguish or impair native title might constitute an acquisition of property.  The submission is quite consistent with 51(xxxi) being able to protect native title from other exercises of Commonwealth power.  It is only inherently susceptible to the relevant sovereign power.  That is paragraphs 4 and 5.

The third proposition is that the notion that property may be inherently susceptible or inherently defeasible to the occurrence of a particular contingency is not confined to property that is created by statute and that, that being so, there is no basis to adopt a special rule in the context of 51(xxxi) for statutory property as opposed to other property.  What matters is that the property has the characteristic of being inherently defeasible to a particular contingency that has occurred, and that might be a characteristic of common law property, just as it might be a characteristic of statutory property.  That is outline 6 and 7.

GORDON J:   Is that any more to say that you seek to extend the rule in relation to statutory rights to these native title rights?

MR DONAGHUE:   Your Honour, I do not accept that I need to extend the rule.  In my submission, Newcrest already ‑ ‑ ‑

GORDON J:   No, the effect of it.  I am asking what the effect of your submission is.

MR DONAGHUE:   The effect of my submission is that the same principle that the Court has applied on numerous occasions in relation to statutory rights, that those cases are just an instance of a more general proposition that property that is inherently defeasible to a contingency is not acquired on the occurrence of the contingency.  So, I accept that the cases are mostly statutory cases – on one view of it, they are all statutory cases – but they are not cases where the statutory character of the property is the critical consideration.  What matters is that it is inherently defeasible to ‑ ‑ ‑

EDELMAN J:   There are many, many property rights that are inherently defeasible, subject to a condition.

MR DONAGHUE:   Yes.

EDELMAN J:   So, the right to possession is inherently defeasible, subject to somebody with a greater right to possession taking possession; your right is defeased.  But no one would ever say that that is not an acquisition of property – that that prevents an acquisition of property, that because your possessory title is not the greatest title recognised by the common law that the Commonwealth does not have to pay compensation if it took your title.

MR DONAGHUE:   Your Honour, I do not need to and I am not advancing a proposition of that width, but I will come to a number of examples of recognition of non‑statutory property.  And so, there are old cases, for example, where a grant is made subject to a reservation – so, a grant of a 1,000 acres, subject to a reservation that 10 acres made be resumed for a public purpose.  The person who receives that grant undoubtedly has title to the property for the period of time – in the case I am going to go to, 60 years – 60 years later, the reservation is exercised and 10 acres is reclaimed for a public purpose, to become a public park.

That, in our submission, is not an acquisition of the 10 acres, because the grant was always, from the time of its inception, subject to the exercise of that power, and so it was inherently defeasible to the exercise of that power.  That is the analogy that I am drawing, but I will come to it.

Can I ask your Honours, starting with my proposition 1, to take up Mabo v Queensland [No 2] (1992) 175 CLR 1, which is in volume 9, tab 87. When your Honours have it, could you start at page 15 in the short but significant reasons of Chief Justice Mason and Justice McHugh. Your Honours can see in the middle of the page, the first line of their Honours’ judgment:

We agree with the reasons for judgment of Brennan J.

What their Honours then do, really, in the rest of the three-paragraph judgment, is to explain the result in the case:

In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes –

So, their Honours there are using the notion of recognition that you will see flowing through Justice Brennan’s judgment:

recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands –

Although, as the next line then goes on to recognise, that entitlement might be:

subject to the effects of some particular Crown leases –

So, one sees there the possibility, already reflected, that native title might be giving way to grants that have occurred.  Then, a few lines further down, a line begins:

The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary –

So, that there you can see is principle of legality language, which the minority Justices used:

neither of us nor Brennan J. agrees with the conclusion to be drawn . . . that . . . extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to claim for compensatory damages.  We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect –

And then their Honours say, in the last line and over the page:

We are authorized to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case.

So, the Court splits four to three on the question of whether the extinguishment of native title by inconsistent grant is wrongful and gives rise to compensation.  So, when your Honours see our friends relying upon the reasons of Justices Deane and Gaudron with respect to acquisition and compensation questions, they are relying on dissenting reasoning.

EDELMAN J: There is nothing in the Chief Justice and Justice McHugh’s judgment that suggests that they are talking about anything other than compensation for a wrong, rather than compensation for an acquisition under section 51(xxxi).

MR DONAGHUE:   I accept that there is no reason to read their Honours as saying anything about 51(xxxi) – and I will come to that – but what they are expressly saying is that they do not agree that the extinguishment by inconsistent grant is wrongful.  Why is it not wrongful?  I will go on to develop this – because native title is susceptible to that exercise of power.

Now, in our submission – so, having agreed with Justice Brennan, his Honour’s is the leading judgment, clearly, and it is the judgment that we submit has found favour in the subsequent jurisprudence of this Court.  The submission that I am about to develop is, we contend, entirely faithful, completely faithful, to the reasoning of Justice Brennan in this foundational judgment.  There is no respect, in my submission, in which we can fairly be accused of departing or undercutting in any way the foundational recognition of native title in the common law.

Can I ask your Honours, in Justice Brennan’s reasons, to start at page 29.  I will not read it to you, but on the top of page 29, the first half of page 29, his Honour is explaining why the proposition that when the Crown assumed sovereignty over Australia, it, by reason of acquiring sovereignty, became the universal and absolute beneficial owner of the land.

His Honour is explaining why it is necessary, as you see on the top line of 29, why that rule “invites critical examination”.  It invites critical examination because, as his Honour concludes about a third of the way down the page, the:

law is unjust, and its claim to be part of the common law to be applied in contemporary Australia must be questioned.

Then, halfway down 29, in the next paragraph:

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.

Now, that is a framework conception that one sees repeatedly through his Honour’s reasons.  He says that we can develop the common law, but subject to the constraint that we cannot if doing so would fracture the skeleton of principle of our law.  That then frames what you see at the bottom of 29, the last line:

this Court is free to depart from English precedent which was earlier followed as stating the common law of this country –

but:

it cannot do so where the departure would fracture what I have called the skeleton of principle.

Then, at about point 4 on the page:

If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied.  Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.

That, then, is what his Honour does.  He identifies in the next paragraph a few uncontentious links in the argument, but then at the end of page 30, says that the contrary rule, the absolute beneficial ownership rule, rests on a number of bases.  His Honour identifies four:

In the first place, it is said that the Crown is absolute owner because “there is no other proprietor”.  This basis denies that the indigenous inhabitants possessed a proprietary interest.

That, he identifies as the “negative basis”.  Then, his Honour says, but there are:

three positive bases to show why it is necessary –

the rule is necessary, and the second of those is the one most relevant to my argument:

One basis is that, when English law was brought to Australia with and by British colonists, the common law to be applied in the colonies included the feudal doctrine of tenure.

What one then sees, structurally, in his Honour’s reasons, is he works through those four bases that are identified there:  the no other owner basis, the tenure basis, and then two others that do not matter for current purposes.  You see in the very important and famous reasoning in the case from page 31 through to 42, an analysis of terra nullius, and ultimately, at the end of the discussion, a rejection of terra nullius at page 42 ‑ ‑ ‑

GORDON J:   One important aspect of the question posed is at the end, just before the heading “The acquisition of sovereignty”, and that is the question of – acquired the lands, but did they acquire beneficial ownership of the land?  That became the issue which was of some importance to the following analysis.

MR DONAGHUE:   Indeed, your Honour, this is all about explaining – all four of these bases, in my submission, are about explaining his conclusion that the Crown did not acquire absolute beneficial ownership.  So, there were four bases upon which it was said the rule about beneficial ownership was defensible, and his Honour goes through, one by one, and explains why they do not require that conclusion.  Ten pages of the reasoning from the middle of 31 through to page 42 is about rejecting the terra nullius basis, and then you see on page 42, at about point 4, the conclusion just under the quote:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.

So, terra nullius is rejected.  Then what his Honour does, over the page on 43, again under the quote – this is the last paragraph of the reasoning under the terra nullius part of the judgment – returns to the skeletal principles:

recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.  The proposition that the Crown became the beneficial owner . . . has been supported by more than a disregard of indigenous rights and interests.

So, it has been supported by more than terra nullius:

It is necessary to consider these other reasons for past disregard of indigenous rights and interests and then to return to a consideration –

And we have emphasised these words:

of the question whether and in what way our contemporary common law recognizes such rights and interests –

So, his Honour did not see recognition necessarily as a binary – yes or no.  One had to consider whether the common law recognises and how the common law recognises.  So, what then follows is his Honour’s consideration of the other reasons, that is, bases two, three, and four that I identified earlier. 

BEECH-JONES J:   Mr Solicitor, just so I know where you are going, what is the skeletal principle of our legal system you say can never be fractured?

MR DONAGHUE:   I am about to show it to your Honour.  It is the fact that grants can be – it is the relevant sovereign power; the capacity of the Crown to grant interests in land and appropriate and alienate land to itself, but your Honour will see it in just one moment.  So, if your Honours could go over the page to page 45.

GORDON J:   Sorry, 45?

MR DONAGHUE:   Page 45.  We are here dealing with the second basis, the doctrine of tenure basis.  At 45, at about point 7 – maybe seven lines up from the second‑last paragraph on the page, his Honour says:

Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.

And then answering your Honour Justice Beech-Jones’ question:

A basic doctrine of the land law is the doctrine of tenure –

Reading the third line up from the bottom:

and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency.

So, his Honour is expressly situating the doctrine of tenure within the framework of the fracturing of skeletal principles, the constraint upon the development of the common law.  And then, skipping forward to page 47, his Honour returns to this theme near the bottom of the page.  He says, about five or six lines up from the bottom:

Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law.  It is far too late in the day to contemplate an allodial or other system of land ownership.  Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.

GLEESON J:   So, that is a limitation on sovereign power?

MR DONAGHUE:   It is a limitation on the capacity to recognise native title, because if the recognition of native title would have prevented – would have disturbed the grants of interest in land in exercise of the sovereign power, that would have fractured an essential postulate of the system of land law.

GLEESON J:   I think I was directing you to a different point:  the doctrine of tenure is a limitation on sovereign power?

MR DONAGHUE:   In my submission, your Honour, the doctrine of tenure is a manifestation of sovereign power.  So, the exercise of that sovereign power to grant rights to others is an exercise of the sovereign power, just as it would be for the Crown to appropriate land to itself.  What Justice Brennan is saying is, I could not develop the common law to recognise native title if it would interfere with that sovereign power.

EDELMAN J:   And the exercise or the grant under an exercise of sovereign power is, itself, subject to another exercise of sovereign power.  In other words, the Crown retains the ability to extinguish a grant.

MR DONAGHUE:   Its own grant?

EDELMAN J:   Yes.

MR DONAGHUE:   Yes, but subject to the non‑derogation principle, which I am about to come to, which features in his Honour’s extinguishment of – so it does retain the power ‑ ‑ ‑

EDELMAN J:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ but it needs to be very clear about it exercises it, and that makes a difference when one comes to the grant of Crown lands law.  Turning over the page to page 48, about point 3 down the page, there is a citation of a number of cases, then his Honour says:

The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty.  The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty.  As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign’s beneficial demesne.

That is, in our submission, what I have called the relevant sovereign power.  His Honour then – I will not read it again, but the next sentence makes the same point again.  And finally – not finally, but for ‑ ‑ ‑

EDELMAN J:   The radical title is not really a title at all.  Radical title is a sovereign power.  I think Maitland described it as an exercise of governmental power.

MR DONAGHUE:   Your Honour, I do not disagree.

GORDON J:   Do you propose to read the next bit?  His Honour goes on by explaining the radical title, and then explains:

it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants.

MR DONAGHUE:   It is not a corollary of that.

GORDON J:   Yes.

MR DONAGHUE:   I totally accept that, your Honour.  This reasoning is ultimately explaining that – and the case ultimately overrules all of the old cases that said on sovereignty you get absolute beneficial ownership.  What it puts in its place is that on sovereignty you get radical title, and radical title being the logical postulate necessary to then enable the exercise of the relevant sovereign power, because, conceptually, how does the Crown grant interests in land if it does not already have an interest in the thing that it is granting?  So, the radical title is the logical postulate for a doctrine of tenure where all interests in land tie back to grants from the Crown.

EDELMAN J:   But strictly, the label “radical title” is a bit of a misnomer, because as an exercise of sovereign power it is not necessarily confined to land.  It is the ability to exercise sovereign power, potentially, over chattels, things that are severed from the land and over the land itself.

MR DONAGHUE:   Your Honour, in my submission, we used particularly – we used in our submissions, and it generated some confusion amongst our friends, the expression “the exercise of radical title” in the way that your Honour has just put to me as a convenient shorthand for what I am now calling the exercise of the relevant sovereign power.

Our friends said, the Commonwealth is totally confused and radical title does not mean any of that and it is only about the prerogative and it has not meant anything since there have been grants of statutory powers.  We said in reply, we were trying to use it in the way we understood the Court in the New South Wales Aboriginal Council Case to use it, where there is the phrase “the exercise of radical title”, but we are sorry we confused you all and what we mean is the exercise of the sovereign power to grant interests in land – which is usually statutory, it has been statutory in Australia for, I think, 150 years.

So, when I am using that phrase, I am talking about the exercise of a power conferred generally by statute to grand interests in land, which does not depend upon, legally, radical title.  Radical title is the postulate that is assumed so as to make the exercise of that power coherent within ‑ ‑ ‑

STEWARD J:   Is “postulate” the right word?  Would it be “capacity” – sovereign capacity?

MR DONAGHUE:   If one conceives of – you can call it that.  Part of the reason that I am being cautious, your Honour, is that, particularly those advising the Commonwealth who live in the world of native title, say that there are many books written about what radical title does and does not mean, and different people have different theories.  So, I am trying to avoid confusion by focusing on the power to which we say recognition of native title was subject.  Because it was subject not to radical title, it was subject to the exercise of the power to grant interests in land or appropriate it to itself.

EDELMAN J:   But, logically, that power – accepting everything you say – is not necessarily just confined to land.  It is a sovereign power that could be exercised, for example, over chattels as well – which may become relevant when one talks about things that are severed from the land.

MR DONAGHUE:   Your Honour, I can see the force of that.  Can I come back to your Honour about that?  I will come back to your Honour after the break.  On page 50, near the bottom, his Honour returns to the theme:

Recognition of the radical title of the Crown is quite consistent with recognition of native title to land –

which, returning to your Honour Justice Gordon, would not have been the case if it was absolute beneficial ownership, because:

for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power –

So, his Honour does not seem to be equating the radical title and the sovereign power, it is the logical postulate required to support:

tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).  Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown’s territory should not continue to be subject to native title.

So, his Honour is, in terms – the “unless” is recognising that if the sovereign power has been exercised in one of those ways, there is a reason to conclude that the land should not continue to be subject to native title.  That is essentially why – as I will develop in a moment – his Honour concludes there is no entitlement to compensation, because the capacity of the common law to recognise native title gives way – necessarily gives way – as an ingredient to recognition.  But I have jumped ahead of myself, so I will step back.

Before I continue with Mabo, can I just interpose a brief reference to a latter decision of this Court, Queensland v Congoo (2015) 256 CLR 239, which your Honours will find in volume 14, tab 103. I just want to seek to make sure that there is no confusion about what I mean when I speak about recognition of native title or the withdrawal of recognition of native title. So, Congoo 256 CLR 239, volume 14, tab 103 – and the only paragraph I am taking your Honours to is paragraph 31 on page 263, in the joint reasons of Chief Justice French and Justice Keane.

GORDON J:   Did you say 31?

MR DONAGHUE:   Paragraph 31, I did.  So, their Honours are here explaining, in terms that I do not apprehend to be controversial, what recognition is about:

The recognition of native title rights and interests translates aspects of an indigenous society’s traditional relationship to land and waters into a set of rights and interests existing at common law.  The metaphor of “recognition” reflects the proposition that the common law cannot transform traditional laws and customs, the relationships to country –

So, those traditional laws and customs in the relationship to country may well continue totally irrespective of what the common law thinks about them.  What recognition extinguishment – reading on near the bottom of the page:

“Extinguishment” describes the result of applying principles by which common law recognition is withheld or withdrawn in the face of legislative or executive acts affecting the land or waters in which native title is said to subsist.

So, it is not just recognition at the outset.  Recognition could have been withheld, but also it might be withdrawn.  And when native title is extinguished, that is what happens.  So, in our submission ‑ ‑ ‑

GORDON J:   Do you accept what they go on to say at 32, or are you going to come to that?

MR DONAGHUE:   I have no difficulty with 32, your Honour.

GAGELER CJ:   Mr Solicitor, I think is said something – I think very similar – at paragraphs 155 to 156 in this judgment.  But it is not new in this judgment – it goes back to Yarmirr, and it was particularly well articulated in Akiba.  The point being that native title involves the common law recognising another system of law, and what is being called the “extinguishment” of native title is just the limit of that rule of common law recognition being reached.

MR DONAGHUE:   Yes.

GAGELER CJ:   It is the one rule with two sides:  recognition and extinguishment.

MR DONAGHUE:   Extinguishment being the limit of recognition ‑ ‑ ‑ 

GAGELER CJ:   Or simply non‑recognition.

MR DONAGHUE:   Or withdrawal of recognition, if something happens later.

GAGELER CJ:   So, if that is the common law rule, I am just not quite sure what your focus on radical title and the doctrine of tenures does to assist, and I do not know why you would say the rule would be different for land and water, for example.

MR DONAGHUE:   So, your Honour, if I have given the impression that I have a focus on radical title, I am sorry, because I am distinctly endeavouring not to have a focus on radical title for the reason that your Honour just puts.  My focus is upon defeasibility to the exercise of the relevant sovereign power to grant interests that are inconsistent with the common law continuing to recognise native title.

My basic point is that even if native title has been recognised by the common law in a particular area, if the Crown subsequently exercised its power to grant interests in that land, that exercise of power would be an exercise of power that would cause the recognition of native title to cease, because the common law could not continue to recognise native title within the Australian legal system consistently with the Crown having the power to grant interests in land, and that is the power that Justice Brennan says the Crown must have as a concomitant of sovereignty.

So, were it otherwise – and this is the minority position in Mabo – once the native title has been recognised, the attempts to grant a subsequent inconsistent interest would be wrongful, it would be impairing the pre‑existing property right that the common law has recognised and it would be erroneous for that reason.

The only reason I am possibly drawing a distinction between onshore and offshore is that I am concerned that in one of the cases, the Court said, because with respect to areas outside the low‑water mark of Australia, the sovereign power to which I am referring did not run, that the Crown did not have the inherent power to grant interests in land or to appropriate land to itself in those areas.

GAGELER CJ:   It depends what you mean by inherent power, but because of the Waste Lands Acts and other legislation of a constitutional nature, the Crown did not have prerogative power to simply grant interests in land, and there was a complex relationship between statute and executive power, really, at all times relevant to this litigation.

MR DONAGHUE:   I think offshore, subject to common law public rights of navigation, which I think, in the case I had in mind, was the reason that native title was not able to be recognised – not because it was inconsistent with the power to grant interests in land but because it was inconsistent with common law rights that had a different origin.

GAGELER CJ:   I know Justice Brennan spoke about sovereignty and sovereign rights, but when you get down to the nitty‑gritty, you have to break that down a little more.

MR DONAGHUE:   His Honour, as I read his judgment in Mabo (No 2), was trying to effect a reconciliation between the abolition of a rule that had been thought to be quite well entrenched and that had a long body of authority behind it, about absolute beneficial ownership, and the way that the rights that were hitherto, or were hereafter, rather, to be recognised by the common law were to intersect with rights and interests that had been granted under the pre‑existing legal system.

I confess, for the purposes of this case, I have not carefully directed my mind to the situation other than the land law situation, and in my submission, your Honours do not need to do so here, and it may be that you should not if the issues have not been fully explored.  But with respect to land law interests, it is certainly enough for our purposes – and we say, entirely consistent with the way that Justice Brennan reasoned – to accept that the common law cannot recognise or continue to recognise native title in the face of the exercise of either of the limbs of the relevant sovereign power.

In taking your Honours to Congoo, as I did, I was not intending to suggest that it was new.  It was a convenient encapsulation of the point, but I accept that your Honour the Chief Justice reasoned similarly, and I accept that there are earlier cases that said the same thing, so, it was not breaking new ground.  I was just seeking to make plain that I was not saying anything about the continuation of native title rights or interests as a matter of traditional law, I was merely making a submission about the translation of those rights into the common law, and that is what matters for the purposes of our case.  Can I ask your Honours – I am nearly finished with Mabo, to go to ‑ ‑ ‑

EDELMAN J:   But is the core of your submission really, then, that what makes native title rights at least in relation to land inherently defeasible is that they are always subject to this exercise of sovereign power?

MR DONAGHUE:   Yes.

EDELMAN J:   Whether one calls it radical title, or whatever label one puts on it.

MR DONAGHUE:   Of sovereign power, or what I have called the relevant sovereign power, because I do not go so far as to say any sovereign power.

GORDON J:   Sorry, do not go so far as to ‑ ‑ ‑

MR DONAGHUE:   So far as to say any sovereign power.

GORDON J:   I was going to say, that is the bit that is addressed in paragraph 32, one is looking to see what the nature of the exercise is.

MR DONAGHUE:   Yes.  But my argument – so, if the Commonwealth, pursuant to an ordinary compulsory acquisition statute, exercises its power not to grant new interests in land or to appropriate land to itself, but just to say – in relation to an area where there might be normal common law rights, native title rights, a variety of rights – and the Commonwealth just says, we are taking this whole area of land to build an airport, or something of that kind.

I do not suggest that 51(xxxi) would draw a distinction between native title rights and other common law rights in that scenario, because native title has not always been susceptible to the exercise of the statutory power to take land under a compulsory acquisition statute for any purpose.  It is more limited than that, and that seems to be – when I come to Newcrest, that is the explanation, in our submission, for Newcrest, and I do not know if your Honour Justice Jagot will recall in Congoo on the Federal Court, but the answer that the Federal Court gave in Congoo reflected that exact distinction, so it said the statutory power that has been exercised there in relation to military bases is not the statutory power to which native title is inherently susceptible, and so ‑ ‑ ‑

BEECH‑JONES J:   Accepting all grants of land are statutory, you say, just the exercise of the sovereign power involved in a statute.  That is not the sovereign power you are talking about?

MR DONAGHUE:   I am not talking about any statutory power.  I am talking about the sovereign – a sovereign power, whether statutory or prerogative, to grant interests in land or to appropriate unalienated land to itself.

BEECH‑JONES J:   And you just draw a distinction between some forms of acquisition that might involve an acquisition of native title, and some that do not.

MR DONAGHUE:   Because if the Crown is seeking to acquire alienated land, for example, it cannot appropriate that to itself, and usually it does not have that power – it would need to use a compulsory acquisition statute, but that is not part of the relevant sovereign power.

GAGELER CJ:   I am not sure I fully understand that.  The rule of recognition at common law is that native title in land and water is recognised, subject to an exercise of statutory power – or potentially executive power, if authorised by statute – to create rights or interests that are inconsistent with native title.  If the rights or interests created are inconsistent, then the recognition ceases, we give that the label of extinguishment.  Is that too simplistic?

MR DONAGHUE:   Your Honour, in my submission, it is wider than what Justice Brennan said.  It is consistent with what his Honour said, but it is wider than what his Honour said, because he never put it as broadly as the capacity to create any interests that are inconsistent with native title.  He linked it to the two things that I am calling the relevant sovereign power.

GAGELER CJ:   I understand that.  One, his Honour was not directly or at least principally concerned with what we now call extinguishment; two, there were a series of cases – Fejo, Yarmirr, Akiba, Congoo – which were specifically concerned with this concept of extinguishment and they sort of fleshed it out a lot more than one finds in Mabo itself.  Not inconsistently, but ‑ ‑ ‑

Section 107, the provision here, is a provision which did not affect minerals where title had passed.  So, section 107 has a proviso which excludes fee simple grants from its effect.  That is the 1939 ordinance.  That is section 107 of that provision.  Then there is subsequently a 1953 ordinance in the Territory which comes along and takes all the alienated minerals.

So, we say that is consistent with our contention about the character of what has occurred under a reservation and that is done in a scenario – and not only is there full awareness of Mabo but it is done by a judge in a case where he is knee deep in looking at these issues and that is his characterisation.

I am very mindful of the time, your Honour.  So, the other case we rely upon is the decision of your Honour in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232. That is in volume 10, tab 92. The paragraph we rely upon is paragraph 112 where, having gone through a process of explaining the change in understanding of the law from Attorney‑General v Brown, your Honour indicated that the actual outcome of the case in Brown, even if the law – as found to be the case in Mabo – applied, would be no different.  What would be different would just be “the steps in the analysis”.  We certainly understood that to be that, as I have said, rather than the Crown asserting existing ownership of minerals and holding them back, the Crown asserts ownership, or asserts exclusive possession, by appropriating.  It is an act of appropriation to the Crown of the rights in those minerals.  In that way, the legislative intention and the objective is fulfilled.

Now, I am very mindful of the time, so I am going to largely rely upon my written submissions.  In terms of – if I could just make some short points about the approach to construction of those rights.  One of the concerns of the Full Court – or the reasons of the Full Court – at paragraph 112 of the judgment was their Honours seem to think that only a statute directed at mining generally could have the function that the Commonwealth contended for, as opposed to what they characterised as a lands legislation statute directed to granting interests of land to third parties.

We say that the very fact that interests are being granted to third parties is what gives rise to the need to sever the title of minerals from the land and to give the Crown the rights to protect those minerals.

STEWARD J:   Well, that is why I drew to your attention section 20 of the 1903 Act, because it gives the Crown the ability to pass title to the minerals to a person with a miner’s right.

MS KIDSON:   It said the Crown is wanting to pass title.  We are talking about a scenario where the Crown retains title but wants to be able to prevent unlawful interference, unlawful taking.

STEWARD J:   But the question is how could it pass – what does it need to have in order to be able to be in a position to give good title to those minerals?  Anyway, just have a think about it.

MS KIDSON:   All right.  Perhaps if I could take that on notice, your Honour.

STEWARD J:   At this late stage, have a think about it.

MS KIDSON:   Yes.  Again, the only thing we would say is that the Full Court thought that section 24 of the 1899 Land Act – that is the provision that mandates the reservation and pastoral release – was purely about rights as between the lessee and the Crown.  But we just say that, with respect, that ignores the fact that the reservation in the grant is the very proof of title that is required to bring in information of intrusion against a third party.

We really say that, because the test of inconsistency here is what rights were, we say, created in the Crown – what rights did the Crown hold, perhaps, after the reservation, is an objective test – that the answer should not change depending upon the nature of the case that arises in the court.  By that I mean, if the case before the court was effectively the equivalent of the Attorney‑General v Brown, if it was a case where the Court was having to decide if minerals were being unlawfully taken by someone without any

authority from the Crown, is the position of the Crown that they would simply have to stand by idly and be able to do nothing about It, or is an action for an intrusion available to them?

To invoke the well‑known phrase of Lord Diplock, if the courts can identify the target of Parliamentary legislation, then their proper function should see that it is hit.  The Gumatj respondent asked the Court to record that it has been missed, but we ask the Court to hit the target, and we say it is no real leap if one accepts the function and objective legislative result that is intended to be achieved by the insertion of minerals reservations.

In relation to the text of the reservation itself, I am simply going to rely upon our written submissions there, and our reply submissions, particularly, at paragraphs 151 to 154.  In terms of the submissions I was making before about the fact that the same language – the words “excepting” and “reserving” apply to, for example, trees and wood as well as to minerals – does not determine the actual legal effect of that clause in relation to that particular subject matter.

There are numerous cases where the exact same language is used, and effectively has a distributive effect.  We give one example, which I think the solicitor general referred your Honours to.  It is Mcgrath v Williams, in volume 20, tab 137.  So, that is a case where there are five reservations, all the same language, ranging from a public way, to indigenous timber, to land within 100 feet of the high-water mark, to all mines of gold and silver, and to a power to resume, and they all had different legal effect.  So, two were held to be true exceptions – actually physically taking out what was granted – three were true reservations.  They were effectively the creation of rights which may or may not happen in the future.

Attorney‑General v Brown also had the same language – reservation – for a right to resume, as well as minerals.  So, we say the language is not determinative, even within the one clause.  One looks at what it is operating on and is it appropriate that it is to be seen as either a true exception or true reservation.

Those are my submissions, and I thank the Court for its indulgence with time.

GAGELER CJ:   Thank you, Ms Kidson.  The indulgence that we have been prepared to extend this afternoon should not be treated as a precedent for the rest of the hearing.  We have an agreed timetable, and the Court will expect counsel to adhere to that timetable tomorrow.  So, we start tomorrow with the Northern Territory, I believe.  The Court will now adjourn until 10.00 am.

AT 4.32 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 AUGUST 2024