DP v Com Cen Authy, JLM v D-g NSW Dept of Com Servs

[2001] HCATrans 76

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth  No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Second Respondents

DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

Office of the Registry
  Perth   No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Second Respondents

Office of the Registry
  Perth  No P63 of 2000

B e t w e e n -

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Fourth Respondents

DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Fifth Respondents

Office of the Registry
  Perth  No P67 of 2000

B e t w e e n -

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Second Respondents

THE ATTORNEY‑GENERAL OF THE NORTHERN TERRITORY

Third Respondent

DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J.A. CARATI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNURRA WATER‑SKI CLUB

Seventh Respondents

ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE

Eighth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 MARCH 2001, AT 10.17 AM

Copyright in the High Court of Australia

GLEESON CJ:   I understand, before appearances are announced, that there are some applications for leave to intervene.  We will deal with those first.  It will be sufficient at the beginning if people seeking leave to intervene identify themselves and then we can ask whether there is any opposition to the application and then hear argument in support of the application if there is any opposition.  Who seeks leave to intervene?

MR J.L. SHER, QC:   If the Court pleases, I appear with my learned friend, MR M.T. RITTER. We seek leave to intervene in matter No P 67 on behalf of the Goldfields Land Council.  (instructed by the Goldfields Land Council Aboriginal Corporation)

GLEESON CJ:   Is there any objection to that application?  What is the next application?

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   If it please the Court, I appear for the Commonwealth of Australia with my learned friends, DR M.A. PERRY and MR J.S. STELLIOS.  We seek leave to intervene in the appeals other than P67 and P59.  In those matters we intervene pursuant to section 78A of the Judiciary Act.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Is there any objection to that application?  What is the next application?

MR G.E. HILEY, QC:   If the Court pleases, I seek leave to appear on behalf of the Pastoralists and Graziers Association of WA (Inc.) in matter No P67.  (instructed by the Pastoralists and Graziers Association of WA (Inc.))

GLEESON CJ:   Is that opposed by any party?

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If it please the Court, I appear with my learned friend, MS S.T. HELLAMS, for the Attorney‑General for South Australia.  To the extent necessary, we seek leave to intervene in all appeals.  (instructed by the Crown Solicitor for South Australia)

GLEESON CJ:   Is that application opposed?

MR B.W. WALKER, SC:    May it please, your Honours, I appear with my learned friend, MS S.E. PRITCHARD, for the Human Rights and Equal Opportunity Commission, seeking leave to intervene in all appeals.  (instructed by the Human Rights and Equal Opportunity Commission)

GLEESON CJ:   Is that application opposed?

MR G.M.G. McINTYRE:   If the Court pleases, I appear with my learned friend, MR D.L. RITTER, on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation, seeking leave to intervene in all appeals.  (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

GLEESON CJ:   Is that application opposed?  Are there any other applications?

MR C.F. THOMSON:   If the Court pleases, I appear for Mirimbiak Nations Aboriginal Corporation, seeking leave to intervene in the matter of P67.  (instructed by the Mirimbiak Nations Aboriginal Corporation)

GLEESON CJ:   Is that opposed?  Are there any other applications?  All those applications for leave to intervene are granted.  In relation to appearances, there is no need for counsel to announce their appearances.  We will take them and they will be entered on the record in accordance with the Court list today. 

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friends, MR C.J.L.PULLIN, QC and MR K.M. PETTIT, for the appellant in P59 of 2000, and for the fifth respondent in P67 of 2000.  (instructed by the Crown Solicitor for Western Australia

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:   If the Court pleases, I appear with my learned friend, MS R.J. WEBB, for the Attorney-General of the Northern Territory in P62, P63 and P67 of 2000.  (instructed by the Solicitor for the Northern Territory)

MR M.L. BARKER, QC:   May it please the Court, I appear with my learned friend, MR R.H. BARTLETT, for the appellants in P67, who are also respondents in the other matters.  (instructed by the Aboriginal Legal Service of Western Australia (Inc)).

MR J. BASTEN, QC:   If the Court pleases, I appear with my learned friends, MR K.R. HOWIE, SC and MR S.A. GLACKEN, for the appellants in P63 of 2000, Cecil Ningarmara and Others, who are the second and other respondents in the other appeals.  (instructed by the Northern Land Council)

MR W. SOFRONOFF, QC:   If the Court pleases pleases, I appear with my learned friend, MR G.M.G. McINTYRE, for the fourth and sixth respondents in P67 of 2000. third respondent in P59 and the fifth respondent in P63.  (instructed by the Kimberley Land Council)

MR B. O’LOUGHLIN:   If the Court pleases, I appear for the second respondent in P63 of 2000, the Conservation Land Corporation.  (instructed by Clayton Utz)

MR H.B. FRASER, QC:   If the Court pleases, I appear with my learned friend, MR K.R. JAGGER, for the eighth respondents in P67 of 2000.  (instructed by Freehills)

MS N. JOHNSON, QC:   If the Court pleases, I appear with my learned friend, MR M.T. McKENNA, for the first respondents in P67 of 2000.  (instructed by Hunt & Humphry)

MR D.W. McLEOD:   If the Court  pleases, I appear with my learned friend, MR P.L. WITTKUHN, for the seventh respondents in P67 of 2000.  (instructed by McLeod & Co).

GLEESON CJ:   Yes, Mr Barker.

MR MEADOWS:   Your Honour, before my learned friend commences, there are one or two things I wish to refer to.  As the Court will be aware, the State of Western Australia has had a change of instructions, and this has resulted in the abandonment of a number of grounds of appeal, proposed cross-appeal, and contentions.  I wish to tender a minute, if I may, setting out the grounds and contentions abandoned and one consequential amendment to contention 10.  To the extent that it is necessary, we seek leave to abandon those grounds and contentions and to make the consequential amendment. 

GLEESON CJ:   You have that leave. 

MR MEADOWS:   Thank you, your Honour.  As the Court will also be aware, we filed amended submissions yesterday.  Unfortunately, we have found some minor errors in those amended submissions, and we will be lodging an errata which corrects those errors.  They are fairly minor. 

GLEESON CJ:   Somebody might find some major errors in them. 

MR MEADOWS:   I beg your pardon, your Honour? 

GLEESON CJ:   It does not matter. 

MR MEADOWS:   I would also ask the Court to note that the tabs which were attached to our original submissions are still relevant and should be kept, as they will be referred to.  I would also inform the Court that we will

be filing an amended proposed determination in lieu of that, at pages 930 to 938 of the appeal book.  This is also consequential upon our change in.
instructions.  I should mention as well that there is a notice of motion seeking revocation of one of the grounds of the grant of special leave to appeal

GLEESON CJ:   We can deal with that in due course, when we find out more about what the case is about, Mr Solicitor. 

MR MEADOWS:   Yes, I appreciate that, your Honour.  I just wanted to foreshadow that there will be an amendment to that notice of motion which we will be filing.  We have already foreshadowed that amendment.  Subject, of course, to the agreement of the Court, we would suggest that that should be dealt with in the course of the appeal.  May it please the Court.

GLEESON CJ:   Yes, Mr Solicitor.  Mr Barker.

MR BARKER:   May it please the Court.  We appeal from the decision of the majority in the court below resulting in the extinguishment of native title in much of the claim area, the subject of the original application for native title.  Your Honours, if I can take you immediately to the submissions of Western Australia which do have the tabs in them that the Solicitor has just referred to - they were the ones dated 16 February 2001 - and ask you to go to tab A in that bundle.  There is a big map entitled Miriuwung Gajerrong Determination.

GLEESON CJ:   Just a minute.

MR BARKER:   I inquire of your Honour the Chief Justice whether that map appears there?

GLEESON CJ:   No.  Whatever you are looking at I am looking at something different.

MR BARKER:   The State yesterday filed some amended submissions to take account of their withdrawals but these are the previous set of submissions that still have the tabs that are relevant, and, as I say, it is tab A in that set of submissions.

GLEESON CJ:   Go ahead, Mr Barker.

MR BARKER:   The map indicates in the legend on the right that the areas where the court below found native title was wholly extinguished.  They are the brown coloured portions, and they include an area which is and adjacent to Lake Argyle to the south of the area depicted on the map.  There are areas marked green where the majority found partial extinguishment and they go to the north of that claim area.  At the top of that claim area that portion might be generally referred to as the intertidal zone, or, more colloquially, mudflats.  Then there is an area coloured purple where the majority found that there was no extinguishment of native title and that includes some islands in the northern portion of that map, Lacrosse Island, Kanggurryu Island and Pelican Island, going from west to east.

The town of Kununurra, your Honours, is more or less in the middle of that map to the right of the words, “See Enlargements”.  The trial judge, Justice Lee, save in respect of some areas of freehold land, determined that there was no extinguishment of native title through that area.  In short, we would seek to reinstate that determination.  Your Honours, we have filed a revised outline of submissions which are dated 9 February 2001 and we adopt those submissions for the purposes of this appeal and we will seek to develop particular ones of them.  We have filed this morning, although it is not particularly consequential for the submissions we make today, a note of amendments that we would make to those submissions as a result of the State’s amendments.

The way we present our submissions to the Court identify four broad matters for determination here.  The first of those broad matters concerns the nature and content of native title and it encompasses grounds 5, 16 and 23 and is dealt with in our written submissions in sections F and G.  The second broad matter concerns the circumstances in which native title may be extinguished, whether or not partial extinguishment may occur under the common law.  That matter encompasses grounds 1 to 4, 6 to 12, 15 and 17 to 22 and in our written submissions is covered by our sections H to O.

The third broad matter concerns the question whether certain legislative and executive acts done after the commencement of the Racial Discrimination Act in 1975 are, to use the terminology of the Native Title Act, and I quote, “past acts”, as defined in section 228. That matter covers grounds 13 and 20 and dealt with in section P of our submissions. The fourth matter, which really is consequential and we would not need to rely on if we were to succeed on the first two broad matters, is a matter relating to the application of section 47B of the Native Title Act in the instant case and that is the subject of ground 14 and is dealt with in section Q of our submissions.

Your Honours, I will open by addressing the first broad matter, the nature and content of native title, a question of partial extinguishment and related matters.  Dr Bartlett, who appears with me, will address the second broad matter of extinguishment, or most of those matters, and tomorrow morning, on the timetable that we are running on, I will complete the last two matters that I have mentioned.

Your Honours, turning to the first broad matter then, the nature and content of native title, as I say, our written submissions, at sections F and G from pages 9 to 16, address the issues that arise in this context pertaining to, firstly, partial extinguishment, secondly, the extent of rights in respect of natural resources and thirdly, the existence of a right in respect of cultural knowledge.

In relation to partial extinguishment, the majority in the court below, at paragraphs 109 and 110 ‑ ‑ ‑

KIRBY J:   Could you just help me how this treatment that you are now going into overlaps with the second of the issues that you mention?  I realise that all of these things overlap to some extent.

MR BARKER:   Yes, but, Your Honour, I think the overlap though is minimal in relation to the broad extinguishment question.  We raise the question of partial extinguishment as specifically in relation to the nature and content of native title to make an argument that, in short, says this:  that if the nature and content of native title is a right to the land itself, it follows, as a matter of legal principle, that there cannot partial extinguishment.  That is the principle that the primary judge applied and why he effectively found there was not extinguishment through much of the claim area.  What we say in the second broad section that your Honour refers to is this, that, even if we are wrong about that, the principles pertaining to extinguishment need still to be dealt with and they go beyond the question of partial extinguishment.

The finding of the court below is set out at paragraph 11 of our written submissions.  Your Honours will see from that quotation we have provided there that the majority expressed the opinion that:

the rights and interests of indigenous people which together make up native title are aptly described as a “bundle of rights”.

Without seeking to read further from that, your Honours will appreciate the view taken by the majority was that the sticks in that bundle could be extinguished one by one so that there could be partial extinguishment of the incidence or rights of a native title and that they might be extinguished cumulatively; and, furthermore, that a native title that might start out with the character of a proprietary interest could be so reduced in content that it would not longer have that character.

HAYNE J:   Now, this is to begin examination into a degree of abstraction or generality.  At some point do you not have to grapple with exactly what were the rights and interests possessed under traditional laws acknowledged and traditional customs observed that were found, whether by the trial judge or the Full Court, to exist in this case?

MR BARKER:   We say two things about that.  First, I will bring the Court to the trial judge’s findings, which are set out relevantly in his judgment, but we do argue at a broader level, but we say not at a level of abstraction that the Court is not concerned with, that on a proper analysis the native title here in a case such as this where the applicant group through their predecessor community occupied exclusively the claim area at sovereignty held then and hold today a right of occupation.  That is the native title right that exists here.  It justifies the determination made by the trial judge and, indeed, repeated in the ways I have indicated by the court below of an order that there is a right to possession, occupation, use and enjoyment of the determination area.

McHUGH J:   Do you not go further and argue that that means a right to the land itself?

MR BARKER:   Indeed, we do, your Honour, and we say that that is the legal consequence of having a right to occupation of the land in the circumstances I have described or seek to develop, particularly by reference to what his Honour Justice Brennan had said in Mabo [No 2].

McHUGH J:   What has happened in the jurisprudence to the dictum of Justice Blackburn in Milirrpum’s Case when he said that the clan belongs to the land rather than the land belonging to the clan?

MR BARKER:   Well, with respect, your Honour, I am not sure that anything has happened if the implication is that it has been lost.  In our submission, if you like, the concept that is redolent in that statement is also reflected in what the joint judgment of this Court in Yanner v Eaton said about the connection of an Aboriginal group being based on spiritual, cultural and social aspects is what underlies a native title.  I am paraphrasing but ‑ ‑ ‑

McHUGH J:   The reason I asked you was because it seemed to me to be inconsistent with your submission that native title was a right to the land itself, at least in parts of Australia.

MR BARKER:   Well, your Honour, we do not see any inconsistency at all.  If I may be permitted to make immediately one observation in respect of Justice Blackburn’s comments in that case.  That action was run on prevailing anthropological theory at the time that the proper land owning group of Aboriginal people were a plan or perhaps in modern terminology that anthropologists have tended to use, an estate group, but to the exclusion of other people who might have rights and interests in it.

Justice Toohey, in Mabo [No 2], I think at about page 190, remarked that Justice Blackburn, having found that that claim failed and indicating that the evidence did not seem to match the anthropological submissions that were made to the Court, could have possibly been framed in terms of a people making the application for title and a broader group of people in the other society actually holding the native title itself.  Indeed, we say that is what happened in, of course, the Mabo [No 2] decision.

It is not the individual clans or families on the island who are found to hold the title, but the people themselves.  That is exactly what Justice Lee at first instance here has found.  So the concept of belonging to the country that we say is strong, it is evidenced here in this case, and it justifies the view that the people, here the Miriuwung and Gajerrong people, occupied this claim area at sovereignty, and that is the underlying title that is native title. 

HAYNE J:   But is there a slide in that proposition that needs to be identified?  That they occupied the land at sovereignty may be accepted for the purposes of the present debate, but occupation may be no more than a statement of fact.  The relevant inquiry, at least at first blush, would seem to me to be the statutory inquiry of what were the rights and interests possessed, et cetera.  That inquiry, at least, is not self-evidently answered by a statement of fact, “They occupied the land.”

It may be, as Justice McHugh’s questions invite attention to, that there is in truth a flipping occurring here, from propositions reduced to undue simplicity, which are, “The land owns the people”, “The land is the people”, to, “The people own the land”.  At some point, as I say, it seems to me we have to come out of a level of theoretical discourse down to particular factual findings about what were rights and interests possessed, et cetera.  You are at the very early stages of your submissions, but at some point, it seems to me, we need to get down to that level of specificity. 

MR BARKER:   Your Honour, I intend to go to it quite soon, by commencing with a closer analysis of what Justice Brennan found in Mabo [No 2], because, in our submission, much is to be gained from that closer analysis.  We say, with respect, that there is equally a slide involved in saying that the only rights and interests that exist in an indigenous system are those that are merely reflected by a set of currently acknowledged laws and customs.  There is something more at play.  If I may seek to develop that submission.  I will not linger at this point.  I think I have indicated it sufficiently and it is clear from the judgment that the majority below did find that there was a right to exclusive possession, et cetera, in the areas I have indicated and that in other areas where native title had not been extinguished it was a right to possession. 

The difference between the two, of course, was that in the one they attached the word “exclusive” and in the other they did not, but the right was a similar one.  The majority arrived at that position by considering all of the evidence that had been led in the case and, I think, if not expressly, by clear implication, found that the evidence showed so much activity of different types by the applicant community that they were entitled to have that type of enjoyment classified as a proprietary interest, exclusive or not exclusive, but, in our submission, their follow-up analysis, that it was only a bundle of rights and each could be extinguished, fails.

KIRBY J:   You seem to be starting your submissions with the common law.  You are going back to Mabo and to what Justice Brennan said and so on. 

MR BARKER:   Yes, I am, your Honour. 

KIRBY J:   Is not the starting point now, the river having moved on, the statute, because the people in Parliament have, as it were, taken another step?  Recognition by the common law is one element in what Parliament has provided, but the starting point now is surely the Act of the Federal Parliament. 

MR BARKER: We accept that, and section 223 has, I think, been focused on in this Court previously, including in recent submissions in the Croker Island appeal and it has also been considered recently in other Federal Court cases. Our simple response is that the position has not changed with the enactment of section 223, that the position at common law, both in relation to the nature of native title and its content and the circumstances in which it will be found to exist is unaltered by the enactment of section 223(1).

KIRBY J:   Except that notions of property normally do not conjure up notions of spirituality.  They are very important in the question of property rights of Aboriginal Australians and spirituality is specifically recognised in the Act and therefore we are dealing with a hybrid kind of concept, both by the common law and by the Act, of property and the legitimacy of that is found in the statute itself.

MR BARKER:   It reflects the common law, with respect, your Honour.  The common law has acknowledged, as this Court did, for example, in the joint judgment in Yanner of the aspects of which your Honour has mentioned.  The Court on a number of occasions has referred to what his Honour Justice Brennan said in Ex parte Meneling concerning native title or Aboriginal traditional ownership being primarily a spiritual affair but not only that. We do not see anything in the Act which deprecates that view and the common law is specifically recognised, of course, in section 223(1)(c).

KIRBY J:   I was not suggesting an inconsistency, I was suggesting that that might be the answer to the link with Justice Blackburn’s notion of the people belonging to the land, that this is the spiritual element of attachment which is not one found in the tenures theory of English Law but is one that we have to try somehow to reconcile to our system of land tenure once you take the step of recognising Aboriginal native title.

MR BARKER:   Yes.  We certainly agree, your Honour.  We would see nothing, as I say, in the Act which cuts across that and indeed the common law recognises that, in the sense, of course, that the common law recognises that there is an indigenous system.  Where it has survived it operates according to its own rights and the evidence before the Court, as in the Milirrpum Case that has been referred to, as in the Mabo decision, as in the evidence in this case before the trial judge reflects that underlying spirituality, so it is that type of case, particularly, that we do have here as well.

The evidence is replete with dreaming stories by the Aboriginal witnesses, some of which were for men or for women only and many for which are shared openly within the community.  So, there is that underlying spiritual basis to the connection that has been made out and found by the trial judge and upheld by the court below, unanimously.

CALLINAN J:   Mr Barker, do you say that section 223 enacts the ratio of Mabo [No 2]?  Is that your submission that it adds nothing, that it really is intended to be a reflection or an enactment of what was decided in Mabo [No 2]?

MR BARKER:   In essence, your Honour, yes.

CALLINAN J:   It goes no further and it certainly is not less than what was said there?

MR BARKER:   Certainly not less than, your Honour.  I think it seeks to clarify in some respects, for example, by making it clear that usufructuary rights to hunt and fish and the like ‑ ‑ ‑

CALLINAN J:   But that was said in Mabo [No 2].

MR BARKER:   Yes, I agree.  It seeks to do no more than reflect the common law and that is ‑ ‑ ‑

CALLINAN J:   And as stated in Mabo [No 2].

MR BARKER:   Yes.  Your Honour, I would just mention in passing – it does not appear in our written submissions – that the Full Federal Court in the decision of Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 which I think has been referred to by one or other of the other parties in these proceedings that does include a discussion of the preferable view of their Honours in the majority – they are Justices Branson and Katz – of section 223. That appears at paragraph [108] of that decision. In general terms, we would accept that analysis.

CALLINAN J:   You adopt that, do you?

MR BARKER:   We perhaps can come back to that later.  The question of the nature of the rights and the question his Honour Justice Hayne pressed me with a few moments ago is reflected, we say, in some of the findings of the primary judge.  Can I ask your Honours to go to the report.

GUMMOW J:   In doing that, Mr Barker, you took us to paragraph [109] and [110] of the Full Court majority which is set out in your paragraph 11.

MR BARKER:   Yes.

GUMMOW J:   Is there a particular paragraph in Justice Lee’s decision which is the other side of that coin, in other words, which states what you say should be the position?

MR BARKER:   Yes there is. I am taking your Honour to that judgment now which, I think, is No 1 on our list, 159 ALR 483.

GUMMOW J:   Is it at page 510?

MR BARKER:   Page 508, I think, your Honour, to answer your Honour Justice Gummow’s question.  Really there is a discussion commencing the previous page, but ultimately the critical passage, I think, is that commencing at about line 4 on 508:

Native title at common law is a communal “right to land” –

And his Honour proceeds thereafter to observe:

It is not a mere “bundle of rights” –

He makes reference to the Canadian Supreme Court decision in Delgamuukw, which we also rely on here, and talks about the fact that partial extinguishment does not follow as a mater of law from that.

McHUGH J:   Mr Barker, does your submission on this point require the rejection or modification of Wik in any way, the actual decision in Wik?

MR BARKER:   No, we say it does not.  We, your Honour, with respect, say that the question of whether native title can be partially extinguished has not been fairly and squarely dealt with by this Court.  We note in our submissions, and will note again in these oral submissions, that there are dicta standing against us, but, properly understood, there is not such a concept.  The question of inconsistency ‑ ‑ ‑

McHUGH J:   Do you accept that Wik appears, at least, to proceed on the basis that native title is a bundle of rights?

MR BARKER:   We see Wik this way, your Honour, that it had to compare the rights given to a pastoralist under the Queensland legislation with rights that come with a native title to see whether the native title had been extinguished and, of course, one of the problems was the rights that came with the native title had not been clarified by the evidence and any findings.  There is plainly some dicta there to suggest that it is a simple exercise of comparing one with the other to see what is left, and that is all that native title then would be, but we say that if there is no necessary inconsistency between the native title and the pastoralist’s rights in that circumstance, then you do not have extinguishment, you have impairment, and you will not be able to do a lot of things under your native title, but there is no necessary ‑ ‑ ‑

McHUGH J:   I understand how you seek to reconcile the two cases.  It just seemed to me that you may have been on stronger ground in relying on Justice Brennan in Mabo if Wik had not been decided the way it was, paradoxical as that might seem.

MR BARKER:   Yes.  Your Honour, the majority Judges in Wik – we just make the point now, of course, by reference to Justice Toohey’s postscript, I think at page 133 – left the question of suspension of native title open and for that reason, in particular, we say the question of extinguishment, as far as the majority was concerned there, was left unresolved because, of course, if there can be a suspension, and we say there can, then there is no extinguishment, it would only be inconsistency in enjoyment.

GUMMOW J:   This reliance on Chief Justice Lamer’s judgment in Delgamuukw by Justice Lee does not quite explain or highlight the emphasis in the Canadian case on their constitutional provision, does it,
on section 35(1)?  In other words, the Chief Justice was talking on one hand about Aboriginal rights, and there is a narrower element in that, Aboriginal title.  They have this idea in Canada that we do not have, it seems to me, which influences a lot of the Canadian reasoning.

MR BARKER:   They have an idea in Canada that we do not have, with respect, and that is section 35 of their Constitution, which recognises particular rights, but there has been an attempt to portray by perhaps others at the Bar table and on other occasions parties trying to portray the Canadian decision as being something from a remote part of the galaxy that really has taken the common law somewhere else, but, your Honour, we ‑ ‑ ‑

GUMMOW J:   I was just referring to it because it is used by Justice Lee to bolster his conclusion which he reaches at the top of 508, which is inconsistent with the Full Court at paragraph [109].

MR BARKER:   Yes.  There is no doubt, your Honour, that Delgamuukw sets up a contrary proposition, that Justice Lee strongly relied on it and we, indeed, strongly rely on it here.  We do not accept that on any proper reading of Delgamuukw the constitutional provisions infect the reasoning in a way that makes it inapplicable in the Australian common law.

GUMMOW J:   That is an important question, I guess.

MR BARKER:   It is an important question, and I would like to come back to that as well, if I could.

KIRBY J:   Given the common problem, there would at least be some merit in, as it were, advancing on this issue in the two other jurisdictions which are common law jurisdictions which inherited the English notions of property law and which are now seeking to adjust their orthodox property law to the rights of the indigenous people, namely the United States and Canada.  New Zealand had a different regime from a long way back.  Rhodesia and South Africa had completely different regimes.

MR BARKER:   Yes.

KIRBY J:   Canada and ‑ ‑ ‑

GUMMOW J:   But the rights of Canada refer to treaty rights of the British Crown, do they not, and the French Crown, if it comes to that, too?

MR BARKER:   There are certainly differences, your Honours, in the historic treatment, which your Honours are obviously aware of, of the indigenous people in other countries that are or formerly part of the countries called the Commonwealth.  But we say that in relation to the Delgamuukw analysis, it reflects a common law analysis and I will seek to demonstrate that to your Honours before long, if I may.  This Court, of course, has drawn since Federation much guidance from countries such as the United States and their jurisprudence and Canada in more recent times.  We do have a shared heritage, of course, in relation to the common law.

Your Honours, I think it would be best ‑ ‑ ‑

CALLINAN J:   Mr Barker, in Yanner v Eaton in paragraphs [152] to [154] I tried to collect from Wik and Mabo all of the references I could find to the nature of native title and it was my recollection that consistently they are references to - expressions more consistent with a bundle of rights than with a proprietary interest of the kind that you are advocating.

MR BARKER:   Yes.

CALLINAN J:   I know I was in dissent, but I did try to collect all the references I could find and I could not find one that – I do not think there is one that really supports your submission.

MR BARKER:   Well, I will seek to sway your Honour otherwise now.  I recognise that your Honour was not alone in the views expressed in Yanner and ‑ ‑ ‑

CALLINAN J:   No, no, I am just talking now, not about the views, but about the collection of the expressions that had been used in the cases until that time which were “incidents”, “nature”, “rights”, “traditions”, “customs” and “entitlements”.  I think it was a fairly comprehensive list.

MR BARKER:   Your Honour, with respect, there are many of the relevant matters there.  It is a question of, we submit, analysis of what his Honour has said on a closer examination.  Can I take your Honours to the decision in Mabo [No 2] ‑ ‑ ‑

GAUDRON J:   As you do that, Mr Barker, could I just say this to you:  the expression “bundle of rights” is a common expression used in relation to all sorts of property because we do not really have a very good definition for it.  But it is a metaphor and ultimately, as Justice Gummow has pointed out on many occasions, you do not get very far with proper analysis by relying on metaphors.  So the question is, what are we really talking about?  On one view, you are talking about a title with various incidents, or you are talking about separate titles for each of the incidents relating to the land.  Is that right?

MR BARKER:   Well, if the latter is right, your Honour, it would be, with respect, an absurd proposition.

GAUDRON J:   I am thinking that you may be right, but I am just suggesting one is not going to get very far in this area just talking about a bundle of rights.

MR BARKER:   Your Honour, we, with respect, agree and we would adopt the observations made in the joint judgment in Yanner to that effect, relying on Professor Gray developing that thesis.  We also note what his Honour Justice Gummow said to similar effect in his judgment in Yanner.  We think the “bundle of rights” expression is something, really, that is too easily proffered.  It perhaps is referred to in the early days of property law in law schools, that it comprises a bundle of rights, and we do not think too much more about it after that.

We certainly submit that whatever application a “bundle of rights” theory has for the development of the general law in relation to such matters as the property and body parts, intellectual property and other things, that when we come to the native title dealing with different relationships with land than the mainstream community in this country are used to, the “bundle of rights” theory is not terribly apposite.

GAUDRON J:   It does not seem to me to be so much a theory as possibly an inaccurate expression.  I think we need different language.

MR BARKER:   Yes.  We have been happy to adopt it but, again, precisely in this way, that it is often said that a fee simple comprises the largest number of the bundle of rights that is known to the law and permits anything and everything imaginable to be done with the property to be done.  We say that if that was the proper view of the bundle of rights then we adopt it in relation to a native title, but, of course, it is used in a different way here.  It is literally talked about in relation to native title as a compendium of rights and interests.  They are quivers, they are sticks in a bundle, and we reject that analysis.

It does bring me to what his Honour Justice Brennan did say in Mabo [No 2] which we seek to develop because we say it is this jurisprudence precisely that was adopted in Delgamuukw in the Supreme Court of Canada.  Can I take your Honours to Mabo [No 2] – I think it is No 3 on our list – and take your Honours immediately to page 57 of Justice Brennan’s reasons.  It is the paragraph at about point 5 on the page following the heading “The nature and incidents of native title”.  This has been referred to regularly in the recent judgments of the Court:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.  The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Your Honours, we say that on a proper analysis, particularly when one goes to the rest of his Honour’s judgment, that statement does not comprise a denial that there exists an underlying title that gives rise to rights and incidents as they have been described.  We say that this is so because the existence of native title in the first place depends on there being an identifiable community which has laws and customs which identifiable community has maintained its connection with land by laws and customs today.  Only if those matters are satisfied, does native title survive.  When one appreciates that, it is obviously correct to say, as his Honour did, and meant to say, we say, that native title has its origin in and is given content by the traditional laws and customs.

GLEESON CJ:   Who first used the expression “native title”?

MR BARKER:   Your Honour, it was used, I think, by some of the parties in Mabo [No 2].  I think the expression “native title” was actually also referred to in Mabo (No 1).

GLEESON CJ:   But you are not suggesting that the expression “native title” originated with a barrister?

MR BARKER:   With a barrister?

GLEESON CJ:   Yes.

MR BARKER:   Your Honour, I will have to be helped and perhaps provide an answer to that later, but it seems to owe itself to a concept of indigenous title.

GLEESON CJ:   I just noticed that on page 57 in the words in parentheses, Justice Brennan gives a definition of this term “native title”.

MR BARKER:   That is right.  Other expressions were pressed on the Court, for example, Justice Toohey, I think, talked about Aboriginal title.

GLEESON CJ:   But did the expression originate in Mabo [No 2]?

MR BARKER:   I am being reminded, your Honour, an expression to the same effect or something like it was used in some of the early Privy Council cases.

GLEESON CJ:   If you look at page 56, in the middle of page 56 in Justice Brennan in Mabo you will find a reference to “private native rights”.

MR BARKER:   Yes.

GLEESON CJ:   But I just wondered who coined the phrase “native title”?

MR BARKER:   Well, the Canadian Supreme Court, of course, has used the expression “aboriginal rights,” and if one were appearing before the court afresh in relation to this matter, one might use the same sort of expression here.  There may be a reason it was not, and that is because the indigenous people of Australia comprise not only the people referred to colloquially as Aboriginal Australians but also Torres Straight Islanders, your Honour.

GLEESON CJ:   Let me ask the question slightly differently.  Was the expression “native title” ever used by any court before the decision in Mabo [No 2].

MR BARKER:   As a legal concept?

GLEESON CJ:   Was the expression ever used by a court?  If you answer that question yes, I will see if I can find out how it was used and what it was intended to mean.

MR BARKER:   Yes.  Your Honour, the expression was used in Mabo (No 1).

KIRBY J:   I think you are right to say it was used by the Privy Council.  I mean it is a very 19th century expression; that is why Justice Toohey did not like it much, but it has some authority in the sense that native peoples were referred to in those provisions of the Australian constitution which were deleted after the referendum.  So it is a 19th century slightly pejorative word.

McHUGH J:   It appears in one of the early New Zealand cases where they talk about “the rights of the native race”, and if you look in Chief Justice Marshall’s judgment in Johnson, he also refers to “natives”.  Now, I do not recollect the expression “native title” was used, but they talk about rights dominion residing in natives, rights of the native rights, and the “aboriginal title” was an expression used commonly.  There is an article in 1986 by my namesake in New Zealand, which I think that is the very title of it, something to do with Aboriginal title.

HAYNE J:   “Native title” appears in Amodu Tijani [1921] 2 AC 399 especially at 402, 403, the expression “native title” is to be found there, at least.

MR BARKER:   We seem to be able to take the anthropology a little further back, your Honour, to case of Tamaki Baker - - -. 

McHUGH J:   Yes, [1901] AC.  It is referred to in that.

MR BARKER:   At [1901] AC at page 381 at about point eight on the page, and also in the headnote at page 371.  Does that provide some help?

GLEESON CJ:   Yes, thank you.

McHUGH J:   In Tamaki the Judicial Committee refers to the “native title of possession and occupancy”.

MR BARKER:   Yes.  We rely on that as well, your Honour.  Thank you.

HAYNE J:   This discussion serves to identify, does it not, the determination of Justice Lee was that the rights and interests included the right to possess, occupy, use and enjoy.  To begin with Justice Brennan’s comments in Mabo [No 2] at page 58, do you say that a right to possess the land - leave aside occupy, use and enjoy - is a right that has its origin in and has some content given by traditional law and custom?

MR BARKER:   We say that native title has its origins or its origin  ‑ ‑ ‑

HAYNE J:   No, my question was more precise.  Do you say that the right to possess the land is a right that has its origin in and has content given by traditional law and custom?

MR BARKER:   The answer to that can be yes, and I think on the findings of fact in this case is yes.  Can I take your Honour, perhaps just to deal with that issue, to his Honour the trial judge’s findings at 159 ALR.  Perhaps I can take your Honour to page 542 in the first instance.  At about line 8 on that page, his Honour concluded that he was:

satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty –

So there is a specific finding concerning occupation.  Without taking your Honours there, there are similar findings concerning occupation at page 540 between lines 34 and 51 and page 541 between lines 27 and 47.

As to the system of laws and customs which bears upon the question your Honour has asked me, if one goes to 541 of the report starting at about line 27 at about point 5 on the page, Justice Lee said this about the evidence:

The evidence adduced in this case demonstrated substantial consistency with the concept of a “tribal group” advanced by Professor Elkin in The Australian Aborigines . . . such a group is comprised of people related by actual and implied genealogy who occupy and are in a definite area of territory and hunt and gather food over it according to rules which control the behaviour of smaller groups and families within the tribe.  The identity of the tribal group is reinforced by shared use and possession of language.  The subgroups make the community work by acting as the economic units which take sustenance from, and are responsible for the upkeep of, the land and for the protection of sites of religious or ritual significance for the community according to traditional laws and customs that have been handed down from Dreamtime figures.

Then there is a further reference there to subgroup reliance, contacts, ties and understandings and the older people in the community in relation to secret matters.  At page 542 from about line 8 really through towards the end of the page, there is a discussion by his Honour concerning the nature of those laws and customs and rights and interests.  At about line 34 on that page he says:

The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes.  For example, a member of the Miriuwung and Gajerrong community is entitled to forage over Miriuwung and Gajerrong territory, and is not confined to the “country” of a subgroup with which that person has connection.  As a matter of courtesy or custom that person may be expected to inform the “dawawang” of a subgroup, as persons responsible for the “country”, of the intended use of the land in the care and control of the subgroup –

and so on.  At page 529, lines 1 to 20, there is further discussion which bears, in our submission, on the point your Honour raises.  Starting at about line 6, his Honour says:

The rights distributed to such subgroups under traditional laws or customs included the right to use a particular area of land for benefit of the “estate group” and the right of some in that group, (the “dawawang”) to “speak for” that land, in particular, as to the use thereof.

Attached to those rights were responsibilities which included a duty to “care for” the country, in particular, to care for and protect Dreaming sites, art sites and other places of significance in the “estate” area.

He then goes on to talk about the estate groups.  So it is through those findings and the responsibilities to care for country, the rights that accord to particular people within a subgroup, the right to forage over the land and the like and ultimately the right to speak for the country and to control what happens on it that one sees, with respect, the justification for the particular finding that there is possession, occupation, use and enjoyment of the traditional homelands of the applicant group.

GLEESON CJ:   Suppose one of the relevant rights is a right to forage over the land, and suppose that the Executive Government, acting pursuant to a power conferred by a statute, floods the land with a lake, which is intended to be there indefinitely.  What has happened to the right to forage? 

MR BARKER:   The right to forage, your Honour, might still be consistent, if it includes the right to fish.  That is the first point to make.  The right to forage in terms of hunting, say, a goanna and chasing it to a hole, will be difficult, given the flooding ‑ ‑ ‑

GLEESON CJ:   Suppose, pursuant to statute, the government not only floods the land with a lake but puts up a sign saying “everybody keep off the lake”. 

MR BARKER:   If there is authority for the putting up of the sign in the first instance, your Honour ‑ ‑ ‑

GLEESON CJ:   That is what I asked you to assume. 

MR BARKER:    ‑ ‑ ‑ then that might regulate the enjoyment of native title.  It would be, in our submission, no different from the circumstances in Yanner, where ‑ ‑ ‑

GLEESON CJ:   So you could have a right to forage on land which is submerged beneath a lake and on which you are prohibited to enter.  That constitutes a mere regulation of your right to forage, does it? 

MR BARKER:   Your Honour, I think I conceded that the use and enjoyment of that right to forage in respect of land-based fauna would be impossible.  Fishing, if it is included, would not be.  A regulation which actually prevented people from entering an area would plainly prevent the continued enjoyment of that native title activity. 

GLEESON CJ:   What has then happened to the right to forage, in the example I gave? 

MR BARKER:   Your Honour, if one is to assume other things, for example, that that is not the only activity or connection with the area which is being made the subject of flooding - for example, that there are spiritual sites of importance to the Aboriginal people in that flooded area and that they maintain a connection in relation to those as well - then we would submit that the whole of the native title has not been destroyed, and that ‑ ‑ ‑

GLEESON CJ:   But my question to you is, what has happened to the right to forage? 

MR BARKER:   It is incapable of enjoyment. 

GLEESON CJ:   It still exists? 

MR BARKER:   Yes. 

GLEESON CJ:   Is it possible to extinguish a right to forage? 

MR BARKER:   We submit, it is not, if the right ‑ ‑ ‑

GLEESON CJ:   It is not impossible. 

MR BARKER:   It is not, if ‑ ‑ ‑

GLEESON CJ:   Suppose the government of Western Australia sought your advice on how to extinguish a right to forage in relation to a particular land.  How would you tell them to do it? 

MR BARKER:   Your Honour, it depends what the government of Western Australia wanted to achieve.  If it wanted to prevent the carrying out of foraging in that place, it could do so. 

GLEESON CJ:   Suppose it wanted to extinguish the right to forage.  Could it do so?  Is it possible to extinguish the right to forage? 

MR BARKER:   Your Honour, we say in respect of a native title that comprises a right to the land itself, that merely to prohibit the act of foraging in that place would not extinguish the underlying title.  The title would remain, but the ability to enjoy that foraging right would be impossible. 

GLEESON CJ:   Is it possible for a grant of a lease, ever, to extinguish a right to forage? 

MR BARKER:   It would depend, your Honour, on the terms of the lease ‑ whether or not there is an impossibility of coexistence.  It would depend on the ‑ ‑ ‑

GLEESON CJ:   Is it possible? 

MR BARKER:   It might be possible, yes. 

GLEESON CJ:   How would you do it, if you wanted to do it? 

MR BARKER:   You would seek to make it clear that the uses comprehended were as broad as the rights that are capable of being enjoyed under a fee simple, and that the term of the lease was of sufficient duration to make it clear that it was intended to be totally inconsistent with continued enjoyment of native title. 

GLEESON CJ:   Would it be possible for a lease to extinguish a right to forage? 

MR BARKER:   The answer would be similar to the one that I provided in relation to the other example, your Honour.  It, if it is cast in certain terms, might certainly be inconsistent with the continued enjoyment of such a native title activity.  But it would be possible, if it were cast in the manner I have put it, to extinguish the whole of the native title that underlies it. 

GLEESON CJ:   That is why I asked you the question that I did and I am afraid I am still not sure what your answer to it is.  Is it possible to extinguish a right to forage?

MR BARKER:   It is and I do not seek to be semantical, your Honour, but it is, so long as the act takes place in a certain way.  We would say that a single act of the executive or the legislature aimed at removing the right to forage will not extinguish the native title because it ‑ ‑ ‑

KIRBY J:   That is not very consistent with Fejo, is it, because one way of extinguishing the right to forage would be by a grant of fee simple.

MR BARKER:   Well, I have conceded that, your Honour, and I suggested it ‑ ‑ ‑

KIRBY J:   The question is, what is the logic of the steps down from fee simple to other property rights that expel the fragile native title?

MR BARKER:   That is why I said, with respect, in answering his Honour the Chief Justice’s question that a grant in fee simple will plainly on the authority of Fejo extinguish all native title rights and interests.

GLEESON CJ:   If your argument is correct, native title is not fragile at all, is it?  It is extremely resilient.

MR BARKER:   It is indeed, your Honour, and the notion that fragility, in our submission, must be treated with care.  The Commonwealth in their submissions and others, but particularly the Commonwealth, seek to make the point that your Honour has put to me, and that we do not shrink from that proposition.  Native title is recognised by the common law in the sense that it may be enforced and protected and there is no reason, given the nature of that interest, that indigenous people in this country have, why it should not be treated with the same respect that other property interests are treated with.

GLEESON CJ:   Now, my questions about the right to forage were really directed at the last sentence in the paragraph that you took us to as the key paragraph in Justice Lee’s judgment on page 508 at line 10.

MR BARKER:   Yes.

GLEESON CJ:   You embrace that, as I understand it?

MR BARKER:   Yes, we do.

GLEESON CJ:   Is the corollary of that that it is all or nothing?

MR BARKER:   Yes, it is.

GLEESON CJ:   If one of the rights has gone, they have all gone? 

MR BARKER:   If all of the rights have gone - - -

GLEESON CJ:   What about if one of them has gone?

MR BARKER:   No, no, that is ‑ ‑ ‑

GLEESON CJ:   You see, a possible point of view is that that sentence could cut rather harshly against you.  The possible point of view is that if one right is gone, they have all gone, unless there is some possibility of partial extinguishment.

MR BARKER:   Your Honour, that brings one to matters that we will come to later in our submissions concerning appropriate tests.  One really has to say, what is the nature of the act of the legislative executive, that is said to extinguish?

GLEESON CJ:   If you relate this question to what Justice Brennan said in the words in parentheses on page 57 of 175 CLR and if you put to one side for the moment the metaphor of “a bundle”, all that is being put against you is, is it not, that some of those interests and rights can be extinguished at the same time as some of them are left standing?

MR BARKER:   This is in relation to what is said at page 57?

GLEESON CJ:   Page 57, the words in parentheses, as to what native title means.

MR BARKER:   Yes, yes.

GLEESON CJ:   Now, you, as I understand it, are intending to resist the notion that it is possible to extinguish some of those rights and interests there referred to, but leave others standing?

We would submit that what the Full Court majority did was look at the reservation in isolation without looking at the entire context in which the reservation was just one part.  We would suggest that when looked at as a whole in the context of all of the circumstances which we have indicated in paragraph 210, dwelling on the historic documentation, the limitation of the grant for pastoral purposes, the nature of the conditions and the nature of the territory, that the reservation cannot be seen at all to manifest a clear and plain intention to extinguish native title, and we would submit, as we do at paragraph ‑ ‑ ‑

HAYNE J:   Am I misunderstanding what the Full Court said at [329], when I understand it to be saying that:

the grant of a pastoral lease had the immediate effect of extinguishing the exclusivity –

but not more than extinguishing exclusivity?

MR BARTLETT:    It is our understanding they went beyond that.  They certainly did consider that upon the grant:

the exclusivity of the native title right to possess, occupy, use –

was extinguished, but they then went on to hold, as indicated at the latter part of paragraph [329], after the reservation:

the activities of the Aboriginal people –

and this is some three lines from the bottom of paragraph [329] –

could no longer come within the limitations as to purpose and geographical location expressed in the applicable reservation.

HAYNE J:   That is in respect, is it, of leases issued after ‑ ‑ ‑

MR BARTLETT:   1934, your Honour.  But prior to that time there was a differently worded reservation, which the majority employed the same reasoning with respect to.  So that if it fell outside the protection of the reservation, native title was entirely extinguished.

GUMMOW J:   Now, there were no such reservations in the Wik leases, were there?

MR BARTLETT:   No, there were not, your Honour.  The Queensland legislation had originally envisaged them, but those leases issued without.  It is our submission, as we indicate in authorities in paragraph 219 through to ‑ ‑ ‑

GLEESON CJ:   Well, just before you go further, the reason they came to that conclusion is expressed in paragraph [328], is it not, and it is a reason related to the construction of the leases?  It may be right or may be wrong.

MR BARTLETT:   Yes, your Honour, it certainly would be part of their reasoning, given the language of the clause, that that was the intent.  A similar conclusion was, of course, reached with respect to the Northern Territory reservation, where in paragraph [340], some halfway through paragraph [340], in referring to the reservation in the Northern Territory legislation:

they operate to define the scope of the Aboriginal rights which were preserved.

We would submit that the authorities, in particular, Yandama Pastoral Company v Mundi Mundi Pastoral Company, which is referred to at paragraph 219, indicate that such reservations in pastoral leases – that was not a reservation for Aboriginal access, it was a reservation for the crossing of stock – do not extinguish and take away rights. That, of course, is in accord with the language of the reservation, but if, in fact, one goes to paragraph [300] of the majority, you find the language of the reservation with which we are most concerned. In paragraph [300] the provision reads, from section 106(2) of the Land Act:

The aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner.

We would suggest that is not the language of extinguishment or expropriation, it is the language of preservation and protection and that is a conclusion which the Yandama Case, referred to in paragraph 219, would be in accord with. 

e would also, however, emphasise that there are particular elements in the language which would suggest that the reservation has nothing whatever to do with native title holders. The language used in section 106(2) is, “The aboriginal natives”. It also declares a right which would seem to prevail over that of the pastoralist. So, we would accordingly submit that the language of the reservation indicates that it refers to different people than native title holders and indeed is ‑ ‑ ‑

GUMMOW J:   No one thought there were any native title holders at this time, that is part of the problem with all of this.

MR BARTLETT:   But in the context of looking for a clear and plain ‑ ‑ ‑

GUMMOW J:   People over there in the Crown Law Office in Perth who were drafting this Act they did not think there were any such things a native title holders.  I am not saying it against you, but the question is, how do you accommodate all of that to what is now perceived?

MR BARTLETT:   I would refer to, in particular, the Northern Territory reservations which refer in particular to all Aboriginal inhabitants of the Territory and so make clear that they are not speaking or referring to merely native title holders.  That is less clear in the Western Australia reservation, it must be said, but it is very clear in the Northern Territory legislation.  What I was going to go on to submit is that we would submit it is referring to different people but also it is of a different character to native title.  The native title holder’s rights must give way to the rights of the pastoralists, whereas this particular right prevails over that of the pastoralists, within its terms.

Accordingly, we would submit that the reservation does not manifest any clear and plain intention to extinguish and we would refer in support at paragraph 223 to fisheries legislation where this matter has been considered where there are special provisions for Aboriginal rights.  The case of, in the Canadian Supreme Court, R v Sparrow but also in the Western Australian Supreme Court of Derschaw v Sutton, it has not been suggested that native title rights to fish are extinguished outside the reservation which is contained within that legislation.

HAYNE J:   Is it the reservation that is said to extinguish or is it the grant of the lease?

MR BARTLETT:   The Full Court indicated that it was the reservation which manifested a clear and plain intention to extinguish all native title.  The Full Court did say that the grant of the lease extinguished the exclusivity of the rights of the native title holder but it was the reservation that manifested the clear and plain intention.

GLEESON CJ:   I am looking at the first sentence in paragraph [306].  The Full Court seems to have rejected an argument that section 106, which is referred to in paragraph [300], extinguished native title.

MR BARTLETT:   I believe that the rejection is primarily focused towards the creation of a new statutory right of Aboriginal access because, if one goes to paragraph [319], the majority would seem to conclude that if the activities of the Aboriginal people do not come within the language of the reservation, then the rights are extinguished.

GLEESON CJ:   By the grant of the pastoral lease, surely?

HAYNE J:   That being understood from [310].

GLEESON CJ:   And from the concluding words of [319].

MR BARTLETT:   I believe you are correct, your Honours, in the sense that the grant would bring about the extinguishment where it was beyond the ambit of the protective provisions of the reservation, the focus being upon, in the majority, of the language of the reservation, the majority of the Full Court having held that Wik was applicable, in their own language.

GAUDRON J:   Did their reasoning to any extent depend upon subsequent legislation?

MR BARTLETT:   The Land Act with respect to the grant of pastoral leases has not been amended before, I do not believe.  There is now a new Land Administration Act but I do not believe it was passed before judgment was handed down.

GAUDRON J:   I am just looking at paragraph [317]:

As a matter of construction we consider that pastoral leases granted in the terms prescribed prior to1933 plainly and clearly intended that in respect of enclosed and improved areas the rights . . . were abrogated.

Then it goes on to the 1934 Act.

MR BARTLETT:   Your Honour, there was a change by the Land Act Amendment Act 1934. There was a reservation protecting an Aboriginal right of access prior to that time. The language was changed in 1934. It is common ground between the parties that all of these pastoral leases always were subject to a reservation. There was what has been called “a window period”, but it does not apply, it is common ground between the parties, to any of the pastoral leases involved in this particular case in Western Australia.

GAUDRON J:   Does not the question of extinction or extinguishment, whether in whole or in part, necessitate consideration of the legislation of the pastoral leases in question?

MR BARTLETT:   We would submit that it most certainly does, your Honour.  That is why we have set it out in the written submissions at pages 44 through to 47 and, in particular, the Full Court at paragraph [296] to [300] also set out the pertinent parts of the legislation.

GLEESON CJ:   And the leases.

MR BARTLETT:   They do not provide a form of leases, but I am happy to take your Honours to the form of lease.  The form of lease is not particularly enlightening in so far as it reflects the legislation.  It does provide a nice map.

GLEESON CJ:   It was a prescribed form, was it not?

MR BARTLETT:   In both cases, both under the Land Act 1898 and 1933, it is a prescribed form of lease.

GLEESON CJ:   Yes.

MR BARTLETT: In paragraph 203 of our revised submissions we do refer to the pastoral leases which were central to the Argyle Downs pastoral lease, and you certainly might find it of assistance to go to volume 5, 1152 to 1157, which is referred to there, which is a pastoral lease issued under the Land Act 1898. On the next line the pastoral lease designated 396/455, which is in volume 5, 1174 to 1176, that is the pastoral lease issued under the Land Act 1933. The form of lease did vary between the two Land Acts.

As I say, they, by and large, reflect the language of the legislation as described by the Full Court at paragraphs [296] to [300].  They also contain a nice map of the old Argyle Downs homestead and the Ord River flowing by it.  If I might then attempt ‑ ‑ ‑

GAUDRON J:   I am sorry to trouble you about this, but is not the reason really to be found in paragraph [312], that:

The pastoral leases envisaged and authorised activities which, depending on their intensity, had the potential to directly clash with the pursuit by Aboriginal people of their traditional activities on the land.

Is that not where the reasoning that leads to the extinguishment, except in respect of what is expressly reserved, begins?

MR BARTLETT:    With respect, your Honour, we would submit that in the latter part of that paragraph it is indicated that it is understood that the rights can coexist and, accordingly, extinguishment does not necessarily arise.  We would submit that the pastoral lease is a unique form of disposition involving such huge areas for relatively unintensive activity upon the land that, to some extent, a unique resolution of the rights of the pastoralist and native title holder are necessary.  If the example I might give is of the obvious right of a pastoralist to build a homestead is considered, it might be suggested by some that that right to build a homestead anywhere on the lease necessarily extinguishes all native title.

But we would submit the right of the pastoralist is not to build a homestead throughout and over the entirety of the pastoral lease.  It confers a right to build one or perhaps two homesteads, but not so as to occupy the entire area so as to extinguish native title throughout the entire area.  It is a relatively unique form of disposition conferring a relatively limited interest and it is why we have recourse to the concept, as did the majority below and the trial judge, of operational inconsistency.  The notion being that extinguishment does not arise upon the grant, it arises upon the inconsistency with respect to certain powers that were conferred in the case of, as we would submit, the unique form of disposition known as the pastoral lease.

GAUDRON J:   I do not think that is what the majority was saying.  When you get to paragraph [319], they are talking about Aboriginal rights:

are inconsistent with the rights of possession and use otherwise granted to pastoral leases. 

Their Honours seem to be comparing rights, not actual use thereof. 

GLEESON CJ:   Is there a typographical error or a slip in that last sentence on paragraph [319]?  Should that be “granted by pastoral leases” or should it be “granted to pastoral lessees”? 

MR BARTLETT:   I think it is acknowledged it should be “lessees” at that point.  It is acknowledged it should be “lessees” at that point, rather than “leases”.

GLEESON CJ:   Thank you.

MR BARTLETT:     But, your Honours, if I might refer to the latter part of paragraph [285], which is where the majority of the Full Court declare that Wik is applicable in Western Australia. 

GLEESON CJ:   And the last sentence in paragraph [316] seems to reflect what you referred to as operational inconsistency, does it not? 

MR BARTLETT:   Yes, it is certainly our understanding that that is the concept that the majority had in mind and they certainly refer to it in their statement of general principles with respect to extinguishment. 

GLEESON CJ:   Is that a convenient time, Mr Bartlett? 

MR BARTLETT:   Yes, it is, your Honour.  Though, if I might be permitted, your Honour, we have not advanced perhaps as far as we had hoped, and it may be necessary, if we are to canvass orally the matters, that

another half hour would be required in our allocation tomorrow.  I appreciate this is a ‑ ‑ ‑

GLEESON CJ:   You will have to be very persuasive to introduce, at this early stage of the proceedings, a blow-out in time allocations, Mr Bartlett.  We will adjourn until 10.15. 

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 MARCH 2001