Fejo & Ors v Northern Territory
[1998] HCATrans 241
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D7 of 1998
B e t w e e n -
JIM FEJO and DAVID MILLS on behalf of the LARRAKIA PEOPLE
Appellants
and
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
OILNET (NT) PTY LTD
Second Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON MONDAY, 22 JUNE 1998, AT 10.21 AM
Copyright in the High Court of Australia
MR J. BASTEN, QC: May it please the Court, I appear MR R.W. BLOWES, for the appellants. (instructed by the Northern Land Council)
MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: May it please the Court, I appear with my learned friend, MS R.J. WEBB, for the Northern Territory of Australia, the first respondent. (instructed by the Solicitor for the Northern Territory)
MR H.C. BURMESTER, QC, Acting Solicitor-General for the Commonwealth: If it please the Court, I appear with MS M.A. PERRY and MR G.J. LOUGHTON for the Attorney‑General of the Commonwealth seeking leave to intervene. (instructed by the Australian Government Solicitor)
GLEESON CJ: Is there any objection to the application for leave to intervene made on behalf of the Commonwealth?
MR BASTEN: No, your Honour, not for our part.
GLEESON CJ: You have that leave.
MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it pleases the Court, I appear with MR G.R. COOPER and MRS D.A. MULLINS, for the Attorney-General for the State of Queensland who also seek leave to intervene in the interests of the respondent. (instructed by the Crown Solicitor for Queensland)
GLEESON CJ: Yes, Mr Solicitor. Is there any opposition to that application?
MR BASTEN: No, your Honour.
GLEESON CJ: Yes, you have that leave.
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR K.M. PETTIT, on behalf of the Attorney‑General for the State of Western Australia seeking leave to intervene. (instructed by the Crown Solicitor for Western Australia)
GLEESON CJ: Yes, Mr Solicitor. Is that opposed?
MR BASTEN: No, your Honour.
GLEESON CJ: You have that leave.
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MS D.T. SEAL, for the Attorney‑General for the State of South Australia seeking leave to intervene in support of the respondent. (instructed by the Crown Solicitor for South Australia)
GLEESON CJ: Yes, Mr Solicitor. Is that opposed?
MR BASTEN: No, your Honour.
GLEESON CJ: You have that leave.
MR L.S. KATZ, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR V.B. HUGHSTON, for the State of New South Wales seeking leave to intervene in the interests of the first respondent. (instructed by the Crown Solicitor for New South Wales)
GLEESON CJ: Yes, Mr Solicitor. Is that opposed?
MR BASTEN: No, your Honour.
GLEESON CJ: You have that leave.
MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friend, MR S. McLEISH, on behalf of the Attorney-General for the State of Victoria seeking leave to intervene. (instructed by the Victorian Government Solicitor)
GLEESON CJ: Is that opposed?
MR BASTEN: No, your Honour.
GLEESON CJ: You have that leave.
MR A.R. CASTAN, QC: If the Court please, I appear with my learned friend, MR K.R. HOWIE, for the Yorta Yorta Aboriginal community, seeking leave to intervene. (instructed by Arnold Bloch Leibler)
GLEESON CJ: Yes, Mr Castan. Is that opposed?
MR BASTEN: No.
GLEESON CJ: You have leave.
MR G.M.G. McINTYRE: If it please the Court, I appear seeking leave to intervene on behalf of the Noongar Land Council, Bropho, Warrell, the Kimberley Land Council, the Eastern Goldfields Land Council and Kenny Oobagooma. (instructed by the Noongar Land Council and Corser & Corser)
GLEESON CJ: Yes, Mr McIntyre. Is that opposed? You have leave.
MR R.H. BARTLETT: May it please the Court, I appear on behalf of Ben Ward and others on behalf of the Miriuwong and Gajerrong people seeking leave to intervene in the hearing of this matter. (instructed by the Aboriginal Legal Service of Western Australia (Inc))
GLEESON CJ: Yes, Mr Basten. Is that opposed? You have that leave.
Yes, Mr Basten.
MR BASTEN: Your Honours, the case concerns land which was in 1996 unalienated Crown land to the south of Darwin. On 6 December 1996 the appellants made an application for a determination of native title to the native title ‑ ‑ ‑
GAUDRON J: Could I interrupt you straight off and ask what you mean by unalienated Crown land?
MR BASTEN: I mean that it was then Crown land in the ownership of the Northern Territory of Australia.
GAUDRON J: Is there some definition of “unalienated Crown land” in some legislation that makes it ‑ ‑ ‑
MR BASTEN: Not for present purposes, your Honour.
GAUDRON J: Well, it was land in the ownership of the Government of the Northern Territory?
MR BASTEN: Yes, that is so.
GLEESON CJ: What does the adjective “unalienated” add to “Crown land”?
MR BASTEN: Nothing, your Honour, in the context of this case. I am happy to adopt her Honour’s analysis of the situation. Your Honours, the claims were placed on the Register of Native Title Claims whereupon the appellants became registered native title claimants. Upon a claim being registered in relation to particular land, the appellants say that the government had no power to compulsorily acquire the land for third parties or grant certain interests in it unless the procedures of the Native Title Act were followed. The first respondent did not accept that proposition and continued to alienate interests in the land. These proceedings were brought in the Federal Court to challenge the power of the Territory to alienate land and to seek injunctive relief to stop it doing so.
The factual basis of the appellants’ case was not the enjoyment of native title as such but the existence of a registered claim over the land. The Northern Territory sought to strike out the proceedings in the Federal Court on the basis that native title did not exist. The primary judge found that native title did not exist purely on the basis that the land had once been the subject of a freehold grant and he struck the proceedings out.
GAUDRON J: When you say it was once the subject of a freehold grant, are you suggesting that the grant was revoked?
MR BASTEN: The grant terminated on acquisition by the Commonwealth after the Commonwealth took responsibility for the Northern Territory. The grant was not revoked.
GAUDRON J: It was a Commonwealth acquisition under the Commonwealth Acquisition of Lands Act?, was it?
MR BASTEN: Under the Lands Acquisition Act, yes.
GAUDRON J: Was that registered in accordance with the registration procedures in the Territory?
MR BASTEN: I cannot answer that, your Honour. It was not a matter which was considered relevant by the primary judge. It was not relied on by the first respondent. I may be able to obtain an answer for your Honour. I do not have that information.
Your Honours, we wish to argue that it was wrong in law for his Honour to address the issue of the existence of native title or otherwise and hence to make the finding that he did in that respect. If the appellants could not obtain the relief they sought on the basis of the registered claim, the relief should have been refused on that basis.
This question goes on one view to the jurisdiction of the Federal Court to address the question of extinguishment at all. If the understanding that the appellant wishes to put before the Court, consistently with the approach adopted by this Court in Waanyi of the Native Title Act, is wrong, then it is submitted that his Honour could have dismissed the claim on that basis. If the analysis that the appellants wish to put before this Court is correct, then the land was alienated, we say, in direct contravention of the Commonwealth Act as construed by this Court. If that is so, for the respondents to be able to obtain a judicial determination of whether or not native title existed and for this Court to entertain that question, would be to invert the proper order of determination of issues as addressed by the Native Title Act and as found by this Court in Waanyi.
Your Honours, this argument was formulated in separate grounds in the notice of appeal before the Full Federal Court which appears at pages 104 to 105 of the appeal books. We submit we are entitled to put this argument as a basis for upholding the ground removed. However, because the order of removal was limited, we have filed a notice of motion seeking leave, if that be needed, to present this argument or, again if that be needed, to remove the other grounds of appeal to this Court. We have filed a written submission entitled Supplementary Submissions for Appellants dated 18 June 1998 in support of that motion and in support of the argument we wish to put.
Your Honours, I make those points before proceeding in case it be thought inappropriate that I continue with the argument which I have just adverted to but, if the Court is content, I would simply pursue the argument as a basis on which the ground removed should not be upheld.
KIRBY J: You were the applicant for removal into this Court?
MR BASTEN: No, your Honour, we opposed the removal.
GLEESON CJ: I do not understand it to be suggested that anyone is taken by surprise by this, Mr Basten, so it is convenient for you to go ahead and put full argument on all issues you want to address.
MR BASTEN: If your Honours please, I will do that. The supplementary submissions set out the purpose of the submission in paragraph 1 and in paragraph 2 set out certain background information. I think, however, it is common ground that there was before the Federal Court proceedings were instituted an accepted claim on the Register of Native Title Claims. The argument that we seek to pursue does not assert that the Native Title Act imposes an unqualified restraint on all dealings by the Crown with unalienated Crown - or land in its ownership. Rather, the argument is that the Act precludes the government exercising a power otherwise available to grant mining leases or other interests to third parties under the Crown Lands Act 1992 of the Northern Territory unless the procedures specified in the Native Title Act have been followed.
This analysis applies expressly in relation to compulsory acquisition of rights in relation to land subject to an accepted claim. The government cannot, we submit, avoid the result by making a grant without acquiring those rights. In any event, in this case an accepted claim existed at the time of the commencement of the proceedings. In these circumstances the Court has been called upon to consider the structure of the Act on two previous occasions, once in the case of the Native Title Act Case, which was a constitutional challenge to the validity of the Native Title Act by the Western Australian government.
We have taken your Honours in the written submissions to two passages in the judgment of the Court in that case and I will take your Honours in one moment to one paragraph. That is in 183 CLR 373. The second case in which the matter was considered by the Court was the Waanyi Case, North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595. For the purpose of the latter judgment, the Court was required to consider the appropriate procedure by which acceptance of a claim by the registrar was to be considered. In doing so, the Court considered the consequences of acceptance of a claim under the Native Title Act.
Your Honours, before coming to those cases, might I just take your Honours briefly to the relevant provisions of the Native Title Act. I have not provided these previously and I apologise for that, but it might be of assistance if your Honours had a chronology of the relevant dates for following parts of the argument. Going first to section 13 of the Act, section 13 comes in Part 2 relating to the recognition and protection of native title and provides that:
(1) An application may be made to the Registrar under Part 3
of the Act -
(a) for a determination of native title in relation to an area for which there is no approved determination of native title -
Section 13(3) provides that:
each of the following is an “approved determination of native title”:
(a) a determination of native title made on an application under paragraph (1)(a) -
There is then provision for a determination to be made by a recognised State or Territory body. There are none such at the present time. If one then goes to Part 3 of the Act ‑ ‑ ‑
GUMMOW J: Does one not start with section 223?
MR BASTEN: Well, one could start there, your Honour. I was seeking to determine the procedure.
GUMMOW J: It tells you what native title is in the terms of this Act.
MR BASTEN: Yes. I intended to come to that, if your Honour pleases, but I will go there immediately. Section 223 provides a definition of “native title” and “native title rights and interests”. They are that:
(a) the rights and interests are possessed under the traditional laws -
I will not read the whole of the definition - where the people:
by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
That definition is extended by subsection (3) to pick up certain statutory provisions which:
at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests -
a definition which itself is given some substance by subsection (4) which deals with reservations in certain pastoral leases. Those are the sorts of rights and interests therefore which can be the subject of a claim. A claim is made under section 61 of the Act which appears at pages 37 to 38 of the brown volume. Applications for native title determinations can be made either by persons who are claimants - and I refer to the third column in the table under the section - or persons who hold an interest in relation to the area of land or waters concerned.
There are then provisions in relation to what the registrar may do with a claim but, relevantly for present purposes, once a claim is lodged with the registrar, the registrar must, as soon as practicable, include details on a register which is created for native title claims, referred to in section 185. The obligation to insert claims contained in applications on the register is to be found in section 190 at page 84. The result of details of claims being inserted on the Register of Native Title Claims appears from the definition of “registered native title claimant” in section 253, a definition which appears at the top of page 126 of the brown version of the Act.
In short, the result of that process is that the claimants achieve a status which has significance for the purposes of the Act, to which I will come in a moment. Before turning to that ‑ ‑ ‑
KIRBY J: Can I just ask, to get it clear in my own mind, your threshold assertion is that you invoked the jurisdiction of the Federal Court, not to protect your right to native title as such but to protect your rights as a person who had had a claim registered?
MR BASTEN: That is so.
KIRBY J: And you say this Court by its Waanyi decision has said that that itself is a valuable entitlement which should be allowed to take its course under the statute?
MR BASTEN: That is so, your Honour.
McHUGH J: What is your explanation for the order seeking a declaration that native title existed in respect of certain land?
MR BASTEN: In our application, your Honour?
McHUGH J: Yes.
MR BASTEN: It was misconceived.
McHUGH J: Well, it was a terrible tactical mistake, was it not?
MR BASTEN: It may have been, your Honour, but we are happy to abandon any reliance on that aspect of the relief. Your Honour said it was a terrible tactical mistake, but it was not the matter which was before the primary judge when he dealt with this aspect of the claim. Indeed, there was an issue raised by the first respondent which is dealt with at page 86 of the appeal books as to whether the court had any jurisdiction to grant such relief. His Honour never finally determines that question because he was satisfied that the court had jurisdiction to grant injunctive relief to protect the status of the land in question pending a claim having been made under the Native Title Act to the registrar.
GAUDRON J: And that was jurisdiction to grant general equitable relief, not to grant statutory relief.
MR BASTEN: Your Honour, it was jurisdiction to grant relief in relation to a matter arising under the Act as a result of jurisdiction vested in the court primarily, we would say, under section 213 of the Native Title Act. So in that sense the jurisdiction of the Federal Court finds, as it must, the statutory basis. In relation to the basis upon which relief might be granted, the jurisdiction of the court may of course be found in the Federal Court Act. There would, no doubt, be a jurisdiction to grant or not grant injunctive relief in aid of a statutory right. Argument in relation to that, your Honour, is that the questions which are relevant to the grant or otherwise of that statutory relief depend upon the purpose for which the relief is sought.
McHUGH J: But your problem is, is it not, that, having sought the declarations that you did, you tendered an issue which the court had to rule on and which it ruled on adversely to you?
MR BASTEN: Well, your Honour, we say that the court did not rule on that issue. The motion which was before the court appears at page 74 of the appeal book and it was an order restraining the first respondent from doing certain things in relation to the land. What I was seeking to say in relation to the way ‑ ‑ ‑
McHUGH J: What about the words “during the pendency of these proceedings” at page 74: can they refer to anything else other than the claim for, among other things, a declaration for native title?
MR BASTEN: We would say yes, your Honour. They can advert to that aspect of the application which sought relief in these terms. These were the terms upon which - relief was sought in the application for injunctive relief and that is the relief which was before the court. It was that motion which was dealt with by his Honour. What we say, your Honour, is that if there is any issue arising from the form of the application as claiming a relief which was imposed by the first respondent and which we do not press, then that claim is abandoned and, if necessary, an amended application could be filed in the Federal Court to that effect. It was not dealt with by his Honour. His Honour says at page 87, line 15, that he is satisfied that he has jurisdiction to dispose of the matter before him. He did not dispose of that application and, in so far as it is still pending in the court, we would abandon it, your Honour, but I accept ‑ ‑ ‑
KIRBY J: Can I just ask would his Honour have had jurisdiction, in your submission, to determine the question of whether there was native title in fact as distinct from whether you had a registered claim?
MR BASTEN: We say no, your Honour.
KIRBY J: Did his Honour decide that question or not?
MR BASTEN: No, he did not.
GLEESON CJ: Is there an issue estoppel arising out of what happened at first instance?
MR BASTEN: There may be between the parties, your Honour, depending on whether the court had jurisdiction. If the court did not have jurisdiction, I suppose the answer is no, your Honour, but we need to challenge the basis upon which the order was made in order to establish that. If your Honour is suggesting there is no issue estoppel in relation to the claim for protection of the land, then we would respectfully submit that makes this a bad vehicle to consider the substantive issue to which his Honour adverted. It will be binding on nobody, the result.
Your Honours, the other motion which I should advert to which his Honour did consider was the motion of the first respondent which is set out at page 15 of the appeal book. We say it did not properly arise for his Honour’s consideration.
HAYNE J: In what sense did it not properly arise? There was application made to terminate your action summarily.
MR BASTEN: Your Honour, on the basis that there was no native title, that would have been an appropriate basis for striking out the principal relief sought in the application but not for striking out or refusing to consider the injunctive relief sought. Indeed, his Honour dealt with it on that basis because ‑ ‑ ‑
HAYNE J: I do not follow that, Mr Basten. There is an application to terminate the action summarily. There is an application for injunction. What do you say about the former, the application to terminate the action summarily?
MR BASTEN: We say that it was not appropriate in the circumstances, where the injunctive relief was sought upon a different basis, to consider that application. The proper procedure which might have been followed, your Honour, was that, if there was a lack of jurisdiction in relation to the principal application, it could have been struck out with leave to amend so as to allow the appellants to pursue the injunctive relief which they did in relation to the dealings with land by the Northern Territory Government. That course, we say, was not followed in form but it was followed in substance, because the matter to which his Honour addressed his attention was simply that. He makes it clear, in my submission, on page 87, that he simply was not considering whether or not he had jurisdiction and whether the court would in appropriate circumstance strike out the principal application. He proceeded to consider whether or not the injunctive relief was available. He said that he had jurisdiction to consider that matter inter alia under section 39B(1A) of the Judiciary Act, and that was the relief which we sought to pursue on our motion. So that, although what your Honour puts to me is correct in form, we say that what happened in practice was something slightly different and that accordingly the question of whether or not native title existed was not properly before the court.
We say one thing further, your Honour. We say that, if that relief sought in the principal application was not appropriate, it was nevertheless not because of the existence or otherwise of native title but because the statutory scheme had determined that these matters be dealt with in another way and that the Federal Court’s jurisdiction to deal with an application for a determination of native title only arises after a referral by the registrar pursuant to section 74 of the Act, and that had not happened in this case. This matter was still before the Native Title Tribunal at the time this matter came before the court. So that the application could have been struck out but not on the basis that native title did or did not exist; simply that the court did not have jurisdiction to deal with it, as the first respondent had submitted.
HAYNE J: In your application to the Federal Court, where do I find reference to the legal significance attached to registration of the claim?
MR BASTEN: Your Honour, it is not clearly expressed in that application.
HAYNE J: Or expressed at all, is it, Mr Basten?
MR BASTEN: I think that may be right, your Honour. The matter was dealt with on the - there was evidence before the court and the argument before the court was based purely on that ground. That appears from the material which we have put on by way of an affidavit of Mr Levy, I think of 19 June. It also appears, your Honour, from the judgment of the primary judge where he deals with the basis upon which the injunctive relief was sought at page 88. It is clear from that part of the judgment that the only issue which was before his Honour on that motion was the argument to which I have just adverted, namely, that the Native Title Act itself and the decision of this Court in Waanyi, formed the basis for injunctive relief and that the court was being asked to ensure that the appellants’ statutory rights which were provided by the Native Title Act were not flouted by a dealing with land which was impermissible because it was beyond the power of the Northern Territory.
GAUDRON J: You accept, do you not, that the relief you were then seeking was discretionary relief?
MR BASTEN: Yes, your Honour.
GAUDRON J: And you say, do you, that the question whether native title existed or even the prospects of success for your claim were entirely irrelevant?
MR BASTEN: We do, your Honour, yes. The reason for that, if I may say so, in further answer to your Honour’s question, is because the issue before the court was one of power. If I might just go to ‑ ‑ ‑
GUMMOW J: That is the issue that you now say was before the court.
MR BASTEN: Yes. It was the issue that his Honour dealt with.
McHUGH J: Yes, but you sought equitable relief, on your argument now, because of your statutory rights under the Native Title Act but, on the issue of balance of convenience, if nothing else, why was it not legitimate for the judge to determine whether or not you did have native title to the land? Why should a judge grant an injunction in a case where he or she forms the firm conclusion that you have no prospects of eventual success?
MR BASTEN: Because, your Honour, the question before the court was whether the government had power to deal with the land. That question did not depend upon whether or not there was a good claim for native title. It depended upon whether there was an accepted claim. The acceptance or otherwise of a claim in accordance with the judgment of this Court in the Waanyi Case did not depend upon the strength of the claim or otherwise. It depended upon the material which was properly put before the registrar and considered by the registrar.
McHUGH J: Be it so, why was not the judge, on the balance of convenience argument, entitled to say, “I am not going to issue an injunction in this case if I come to the firm conclusion that there is no prospect eventually of succeeding in this issue, and to issue an injunction at this stage would only hinder the orderly distribution or development of this land”?
MR BASTEN: Your Honour, we say two things in response to that. Firstly, that was not the way that his Honour dealt with it. Had it simply been a fact ‑ ‑ ‑
McHUGH J: No, but we are talking about jurisdiction here.
MR BASTEN: On one limb of it we are, your Honour, but that would not necessarily give him jurisdiction to make a finding as to whether or not native title existed - and that may come back to the issue estoppel question - but we would say that whether or not it was an appropriate case for the injunctive relief should not depend upon the balance of convenience in that sense because that is inverting the order in which the questions are dealt with in contravention of the statute. If it is correct to say that the Commonwealth Parliament has invested certain rights in people by virtue of the acceptance of a claim, then it is not a matter for the court to consider the strength or otherwise of that claim in ensuring that their rights are not disregarded.
Were it otherwise, that would result in a flouting of this Court’s decision in Waanyi in which the Court said that this was simply not a matter which this Court would consider in a case where acceptance or otherwise was a matter for the tribunal. The proper way to deal with the decision of the tribunal in such a case, if it is thought that the claim has no merit, is to seek to review the decision of the tribunal.
KIRBY J: Is there an internal mechanism whereby you can move the tribunal to, as it were, set aside its earlier decision to register the claim?
MR BASTEN: I think the answer to that, your Honour, is that the mechanism is external and must be found in the Administrative Decisions (Judicial Review) Act. The difficulty with pursuing a claim under that Act would be the absence of any error on the part of the tribunal, one might suppose, in a case where the tribunal appears to have properly undertaken its functions in accordance with the approach adopted by this Court in Waanyi.
KIRBY J: Would you just explain to me: there are two stages of registration. You register your claim and then the registrar of the tribunal accepts it, and that I think is what lifts it up into the Waanyi protection.
MR BASTEN: Your Honour, in Waanyi the Court was concerned with the appropriateness or otherwise of the registrar and the President refusing to accept the claim. The analysis which I was putting to your Honour a moment ago was that the status of “registered native title claimant” is actually achieved upon the lodgment of a determination for native title, an application with the registrar for a determination of native title. This is a matter of some political concern at the moment but not, in my respectful submission, a matter for your Honours. That is the first stage.
The second stage comes later after the registrar has dealt with the claim pursuant to sections 61 and 62. He is then required under section 63 to determine whether or not the claim must be accepted.
KIRBY J: Does that involve some preliminary estimate as to whether there is an arguable case or a prima facie case?
MR BASTEN: It does, your Honour. It requires the negative condition that he must accept it - or she in this case - unless he or she is of the opinion relevantly that prima facie the claim cannot be made out. In this case the claim was accepted.
GUMMOW J: Yes, it was accepted but it did not refer to the fact of the grant in 1882, did it?
MR BASTEN: It did not, your Honour, but nevertheless, on the basis of this Court’s understanding of the Act in Waanyi, would have been wrong.
KIRBY J: Would that have been a basis for review under the Administrative Decisions (Judicial Review) Act that a matter relevant to the consideration, a legal matter, had not been taken into account in registering the claim?
MR BASTEN: We would say no, your Honour. It would have been a basis for review if it had been taken into account. In a sense that was precisely the issue which came before this Court in the Waanyi Case because the registrar and the President did take into account material placed before them by the respondents who asserted that a tenure history was inconsistent with the native title claimed.
GAUDRON J: But the question in Waanyi was whether it was an arguable case and maybe that is the same question here. If it were an arguable case, then doubtless the registrar was obliged to proceed with it. The question that is now raised is whether it is simply unarguable that there can be native title in the circumstances disclosed.
MR BASTEN: Your Honour, if one supposes that that argument had been put to the Federal Court as a basis for reviewing the registrar’s decision, the answer which we would have given would be as follows: firstly, that what the registrar is required to consider is the material placed before her by the claimants.
GUMMOW J: Yes, and your client, who then sought equitable relief in the Federal Court, had not placed the relevant facts before the registrar. That is not very good conduct for an equity judge, I would have thought, when subsequently asked for an injunction by that party in a related matter.
MR BASTEN: Your Honour, the comment on the conduct of the appellants depends upon knowledge, and I think it is clear from the correspondence which is adverted to in the judgment that there was simply no knowledge of the existence of this historic claim or freehold grant until it was raised by the Northern Territory.
GUMMOW J: That is the first sort of thing you would think about when you were framing such a claim.
MR BASTEN: There is no register which was available to the claimants which indicated that, but in any event, your Honour, that would be an argument that the claimants had in some way improperly put a matter before the registrar and obtained an accepted claim as a result.
HAYNE J: But assume no impropriety, assume perfect good faith all around. Is the Equity Court then to shut its eyes resolutely to the existence of this fact that emerges in the course of evidence before it?
MR BASTEN: We would say yes, your Honour, because - I was just giving the two part answer, if I might, to your Honour Justice Gaudron’s question to me. The second part of it was that the majority judgment of this Court in Waanyi at page 621 rejected the proposition that:
the Registrar or the presidential member were at liberty to receive from a third person and to consider information or material which casts doubt on the prima facie ability of an applicant to make out a claim.
At the top of page 621 in Waanyi. The reason that your Honours adopted that analysis turns upon a consideration of the role of the registrar and the President which was, by way of administrative decision making, not to consider questions of law and not to consider a contest at that stage of the procedure set out under the Act.
Now, if it follows from that, that the decision of the registrar was properly taken, and that a claim was in accordance with the Act as at that time properly registered, then the next stage is that at page 616 of the judgment at point two, the Court’s analysis is that:
Sub-division B of Div 3 of Pt2 of the Act denies the Governments -
relevantly of the Territory:
power to confer -
certain rights. So that the substance of our argument is that the acceptance of the claim, which is not challenged, and for the purposes of the present hypothesis not challengeable, gives rise to a constraint on the territories power under the Crown Lands Act to dispose of interests in land and if that denial of power is apparent on the basis of the register, then it is that fact which the Court is required to address its mind to in considering whether or not relief should be granted.
HAYNE J: In that sense then, the registration is conclusive of the question of power. Is that the contention that you make?
MR BASTEN: That is the contention, your Honour.
HAYNE J: And the contention is that that conclusive state is arrived at, regardless of what other perhaps entirely uncontroverted facts are available to an Equity Court whose aid you seek.
MR BASTEN: Yes, your Honour, in the sense that - - -
HAYNE J: It is a startling proposition, is it not, Mr Basten?
MR BASTEN: Well, your Honour, with respect, it goes to questions of relevance and irrelevance similar to those which arise in administrative law contexts. Namely, if a factor is said by the statute not to be relevant for present purposes, then that result is perhaps not as startling, your Honour, as it might otherwise be were the matters at large. And the structure of the Act which this Court accepted in Waanyi appears in the middle of page 616 and, indeed, in other places where your Honours said that:
the Act maintains the status quo as between the registered native title claimant -
and others who may wish to develop the land. In other words, this is not a case in which the equitable jurisdiction is being invoked to maintain the status quo. The status quo is provided for in the Act and the means, the mechanism, for providing it is that there is a registered native title claim which denies power to a government. Now, whether or not that claim is soundly based is not a question which is to be considered at this stage. At page 617 at point 3, the majority judgment makes the point that there is a good policy reason why the merit or otherwise of the native title claim is not properly before the Court, namely, that there will be complex issues and that the question of how they should be resolved has been determined by the Commonwealth Parliament to be considered, in the first instance, by a process of mediation and negotiation. At the end of that paragraph, your Honours said:
To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached -
and for present purposes we would say “and completed” -
is to invert the statutory order of disposing of such claims.
Now if it be the case that the rights, the lack of power in the Territory, is unenforceable on our motion, except by putting the merit, or otherwise, of our claim for native title up for judicial determination, then, in our submission, that argument follows.
Your Honour Justice McHugh was to similar effect in a passage at the bottom of page 631 to 632:
Upon acceptance of a claim, a government.....can only grant or vary mining rights, or compulsorily acquire native title rights for the benefit of non-government parties, in respect of land covered by the accepted application if certain procedures are followed -
and so on. The procedures require certain things to be done and the purpose is to seek to achieve a negotiated agreement. Those procedures were not followed in the present case. And then at page 637, in the middle of the page, your Honour referred to the:
special procedure for determining claims of native title by conciliation and negotiation -
and continued:
In furtherance of this purpose, the effect of the Act is that, irrespective of whether a claimant has native title as claimed, as long as the claimant has a prima facie claim of title, he or she obtains the right to negotiate with interested parties once the Registrar accepts the claim. Those rights of negotiation are valuable rights. They enable an applicant to protect his or her claim against “permissible future acts”. They may also result in the applicant obtaining a commercially beneficial settlement of a doubtful or even -
your Honour said:
non-existent claim.
So that it is against that background that we say that it was inappropriate for the trial judge to consider the existence or otherwise of native title.
McHUGH J: And that is why I said it was a terrible tactical mistake to have introduced this claim for a declaration about native title.
MR BASTEN: I understood that was your Honour’s point. We accept that, in a sense, that raised a false issue.
McHUGH J: Yes.
MR BASTEN: But our request to the Court will not give it jurisdiction any more than our failure to amend the pleadings, at this stage, would.
KIRBY J: Do I understand that your contention is that it was not competent of the Federal Court to determine the issue you originally tendered and that by the time the matter came for hearing before the primary judge, the issue had refined to the issue that you are now arguing before this Court?
MR BASTEN: And further, your Honour, we had realised our own error. It was an error - - -
KIRBY J: Had you disclaimed it before the Federal Court?
MR BASTEN: Yes.
KIRBY J: That is to say, the claim for native title as such.
MR BASTEN: We made it clear that the only relief we were seeking was the injunctive relief.
McHUGH J: In the action?
MR BASTEN: In the action. And as I have indicated, your Honours, we do not pursue any other relief in the action. We say - we accept that it is unavailable to us and the reason it is unavailable is a combination of section 213, which vests jurisdiction in the Federal Court under the Act but subject to the Act, and section 74 which provides that:
the Registrar must lodge the application to the Federal Court for decision -
where it is not resolved by negotiation.
KIRBY J: Is there any power under the Act whereby some order in the nature of injunction, if that be competent, can be made by the tribunal or was it obligatory for you or the registrar to go to the Federal Court to get an order of injunction to protect the sort of entitlements that Waanyi speaks of.
MR BASTEN: It was obligatory, your Honour. The tribunal has no judicial power, that is clear, and there is no procedure, valid or otherwise ‑ ‑ ‑
KIRBY J: There has been federal legislation which provides for administrative tribunals to make orders in the nature of injunction, though they have always been a little doubtful.
MR BASTEN: But there is nothing in this Act which gives that power to the ‑ ‑ ‑
KIRBY J: So you had to go to the Federal Court?
MR BASTEN: We had to come to the Federal Court.
GAUDRON J: Now, Mr Basten, am I right in thinking that you claim that whatever the Northern Territory did was, after your claim was accepted, an impermissible future act?
MR BASTEN: We claim that ‑ ‑ ‑
GAUDRON J: That is in terms of the statute, the Native Title Act.
MR BASTEN: I think we claim more than that, your Honour.
GLEESON CJ: But at least that.
MR BASTEN: At least that.
GAUDRON J: Well, what else do you claim?
MR BASTEN: We say it was beyond power.
GAUDRON J: Well, is it not the fact that - I mean, is not the position as set out in section 22 of the Native Title Act that:
Subject to sections 24 and 25 -
which I think have no present relevance:
an impermissible future act -
is invalid, but only to the extent that it affects native title?
MR BASTEN: Your Honour ‑ ‑ ‑
GAUDRON J: So there is nothing about power, is there, as such in the Native Title Act? It is about validity.
MR BASTEN: Well, with respect, there is a difficulty in interpreting the provisions in relation to permissible future acts. Our argument, though, and the argument accepted in this Court in Waanyi as to power, depended upon the procedural constraints imposed by Subdivision B of Division 3 of Part 2 at page 17. In other words, the constraint upon a grant of an interest in land arises only in relation to what would otherwise, as it were, be permissible future acts. So that one needs to have something which is at least potentially a permissible future act before one comes within the circumstances of Subdivision B. Now ‑ ‑ ‑
GAUDRON J: Well now, the construction case against you, based on section 22, is that you have to have some native title.
MR BASTEN: Against us on 22? Yes, well ‑ ‑ ‑
GAUDRON J: Well that is to say, the Act says they are invalid to the extent that they affect native title.
MR BASTEN: Yes.
GAUDRON J: But if there is no native title, the acts are perfectly valid.
McHUGH J: I would thought that it was a mistake to ever go near the Federal Court to begin with, even to protect your statutory rights. If you did have native title, then these future acts would have been impermissible and you would have been no worse off and, meanwhile, you have your right of negotiation which may have got you something, even if you did not have any existing legal entitlement. But by going to the Federal Court, you have put yourself in this position now where the issue of your title - - -
KIRBY J: I assume that things were happening pursuant to the claim of the freehold?
MR BASTEN: Yes.
McHUGH J: But they would have been invalid.
MR BASTEN: Well, they would have been invalid, your Honour.
McHUGH J: If you have native title in the end.
MR BASTEN: They would have been invalid but they might have involved the destruction of important cultural property and to say that we have to stand aside and watch that happen is, in my submission, inconsistent with the structure of the Act. The Act is not - if that were right, your Honour, if we were required either to prove our native title or stand aside, then the purpose of section 29 and 28 of the Act would be undermined, if not destroyed. What the Act acknowledges is that there will be a considerable period of time during which determinations of native title will not exist. And section 29 requires that notice be given, not only to persons who are registered native title body corporates, in 29(2)(a), but also to registered native title claimants. In other words, whilst a claim is pending, a level of protection is granted. Section 28 provides that the Act is only valid if, (a) at the end of the notice party, there is no native title period, and a registered claimant can be a native title party.
GAUDRON J: That all assumes the existence of native title.
MR BASTEN: With respect, no, your Honour. If that was so ‑ ‑ ‑
GAUDRON J: You write section 22 out of the Act.
MR BASTEN: No, you do not write section 22 out of the Act, your Honour. Section 22 is addressed to a different issue. Section 22 is addressed to the existence of two classes of act. One is a permissible future act, as defined in section 233 and, substantially for present purposes, that is an act which can be done in relation to land affected by native title if it could be done in relation to land on which there was ordinary title. That reflects the Racial Discrimination Act protection now available for native title holders.
Acts which are discriminatory in form would be impermissible future acts and invalid for that reason. So, we are only considering the category of permissible future acts. Now there is still a construction point which is put against us and I understand that, that unless you have a permissible future act you do not come within the terms of Subdivision B and following that through, you do not have a permissible future act unless the act will affect native title in some way.
But what we say in response to that, and what we understood this Court to be saying in Waanyi, is that there is, as it were, a purpose of interpretation of this Act which says, very well, you assume for the purposes of Subdivision B that if native title exists, this would be a permissible future act, and you nevertheless impose the procedural constraints which are available in relation to a circumstance where there is a registered claim, and if those constraints are not followed, then the Act is beyond power.
KIRBY J: Is not the difficulty with your theory of the Act that - I realise you have not made a claim against those private persons who have freehold, but somebody else might. Claims might be made over the whole freehold of Australia and your theory of the Act would mean that once registered, everybody who has freehold in Australia must enter into the negotiation process which could take years. That would lead to a great deal of uncertainty which the issue that is now tendered to the Court could resolve and the vehicle for resolving it may be section 28 or 22.
MR BASTEN: Your Honour, we would say that there are a number of problems with that argument. It is obviously an unattractive result but the question is really whether such a claim would be registrable under the terminology of this Act. And if it were in that form, we would respectfully say that the registrar would be out of his mind if he accepted it. I mean, it just is not the sort of claim which is possible ‑ ‑ ‑
KIRBY J: Essentially, your case comes down to, as I understand it, the suggestion that, though that may be a large issue and an important issue, in the events that have occurred here, the registration of your claim and then the acceptance by the registrar of it, that this is not a suitable vehicle in which to resolve that question.
MR BASTEN: That is so. And I suppose, in further answer to your Honour’s proposition, whilst we say it is entirely hypothetical, the logic of it flows from the structure of the Act and the problem arises from the way in which the Act is formulated, if it arises at all. We say it does not.
GUMMOW J: Well, assume the registrar is not informed of this circumstance by the applicant, as happened here. You say the whole thing then locks in by reason of this omission, innocent or otherwise.
MR BASTEN: Yes, that is so. And as his Honour Justice Hayne put to me, we should assume not informed in good faith because it was simply not known to the claimant at the time.
HAYNE J: I made no assumption one way or the other. I put to you a hypothetical case, Mr Basten.
MR BASTEN: Yes, I was adopting that aspect of the hypothetical ‑ ‑ ‑
HAYNE J: That is not what you said.
MR BASTEN: I am so sorry. I was intending to adopt that as being the strength of the case against me because, were it in bad faith, the claim would readily be challengeable. I understood the strength of your Honour’s proposition to be that it was in good faith and, therefore, not challengeable. But, yes, we would accept the logic of that and, your Honour, that is factor which has not gone unnoticed in preparing amendments to this Act by the government, that this is, perhaps, a consequence which is unfortunate. But it follows, we would submit, from the analysis correctly adopted by this Court, and not challenged here, in the Waanyi case.
HAYNE J: Is it a consequence that you say follows through the definitions of “permissible future act” and that which then follows in the Act?
MR BASTEN: Yes.
HAYNE J: Would you take me for a moment to that part of the definition of “future act” on which permissible future act then builds, which you say bites in this kind of case.
MR BASTEN: The definition, your Honour, occurs at page 111 in section 233:
an act is a “future act ‑ ‑ ‑
HAYNE J: Yes, I have read it. My question is which part of it do you say bites? What are the operative words?
MR BASTEN: It must have one of two effects in paragraph (c):
either:
(i) it validly affects native title.....to any extent; or
in (c)(ii)(C):
if it were valid.....it would affect the native title.
HAYNE J: Is “future act” thus defined in terms which presuppose an existing native title? That is, is native title used in 233(1) to refer to something that exists, something that is claimed or something that is hypothesised, or what?
MR BASTEN: Your Honour, the answer to that depends to some extent upon the part of the Act to which one is looking. If ‑ ‑ ‑
HAYNE J: Assume it has this ambulatory definition or flexible definition that you advert to, what is the operation it has in that part of the Act on which you now rely?
MR BASTEN: Hypothesised or better claimed, your Honour, the subject of a registered claim. It is the registration of the claim in Subdivision B which creates a native title party to whom notice must be given or the Act will be invalid and we say that one construes the concept of a future act in that context on the basis that one is only looking for that purpose at a registered claim and, ex hypothesi, one cannot be required to prove one’s native title before the consequence follows. The invalidity, your Honour, flows from section 28(1).
In substance, your Honour, were it otherwise, we say the analysis would destroy the purpose of the legislative scheme insofar as it is intended to maintain the status quo pending a native title determination, a purpose which this Court expressly upheld as appropriate in the Waanyi Case.
KIRBY J: Could you just help me, if there is anything else you want to say about how section 22 fits within the scheme of the Waanyi concept of protecting claims once made, because they are likely to be complex, they are likely to take time to resolve and they are valuable in themselves even if there is no ultimate substance in them.
MR BASTEN: Your Honour, we say that section 22 is not the basis upon which we rely in the present case because we say that section 22, to the extent that it deals with something which cannot be a permissible future act, does not evince the same intention. But if one were to treat section 22 as being the source upon which invalidity arises in the present case, we say that the same analysis would apply as from section 28, namely, that the constraint imposed by the Native Title Act is a constraint on the power of the Territory to deal with its land in a way which is inconsistent with the Commonwealth law and, accordingly, not a section 109 inconsistency but a Territory Commonwealth inconsistency in the terms which this Court adopted it, amongst other places, in Japanangka’s Case 158 CLR 395 in the decision of Justice Brennan. I am so sorry, I do not think we have given your Honours a copy of the page reference. It appears at page 414 to 417 and in particular, in relation to the question of power at the bottom of page 418 where his Honour was considering a similar effect flowing from the power vested in the Territory Minister under the Self-Government Act when considering the Commonwealth Aboriginal land rights Native Title Act and the power to make and have claims considered under that. But the analysis as to capacity is set out at the bottom of page 418, and we say that would apply in relation to an analysis either under section 28 or 22.
GLEESON CJ: Does that cover what you want to say on the jurisdictional question?
MR BASTEN: That is right, yes. Might I then turn to the substantive issue raised and if it is convenient, I might deal with the matter by way of a series of propositions rather than going in detail to the authorities. We have provided copies of the authorities to your Honours and also provided some written submissions, both in outline and in reply, which deal with those matters.
KIRBY J: Before you start that. Was there anything different in what you have said to the Court on the question of jurisdiction to what you have put before the primary judge, apart from elaboration conceptually?
MR BASTEN: Certainly, perhaps by way of elaboration, but not in substance and that is apparent from the transcript which we have annexed to Mr Levy’s latest affidavit which is the transcript of the relevant part of my argument before the primary judge. But as I think I indicated, it is also apparent that his Honour understood it in that way because he dealt at pages 88 and following ‑ ‑ ‑
KIRBY J: I was not reopening the issue, I just wanted to know whether you had, as it were, put a different case to us than the case you put before the primary judge.
MR BASTEN: I put no other case, except that his Honour was bound by Waanyi. Your Honours, in relation to the substantive issue, the approach taken by the primary judge was to note the terminology of extinguishment used by various courts, including members of this Court, and to treat the question to a significant extent as one of construction of that term. And that appears from pages 90 to 94 of the appeal book. We say, with respect, that the appropriate approach requires an analysis of the relevant concepts so as to achieve the principled result consistent with the scheme of the Act and the general law. The first ‑ ‑ ‑
GLEESON CJ: What does the Act mean by the word “extinguished” in section 11?
MR BASTEN: Well, your Honour, what I was - his Honour refers to the fact that there are references to extinguishment in two places in the Act significantly, section 11 and the non-extinguishment principle in 238. Our primary submission in relation to the question of extinguish is that it depends, to some extent, on the circumstances in which it is to be found in the Act. Your Honour refers to section 11. There is also extinguishment in relation to surrender in section 21 and the distinction that is reflected by these different provisions is significant, we say. But ‑ ‑ ‑
GUMMOW J: But are you saying the Act changes the common law in respect of what happened in the 19th century as to what was involved in the common law in the concept of extinguishment?
MR BASTEN: We do say that, to some extent, yes, your Honour. There are a number of provisions which are relevant to this purpose. If I might just identify the conceptual framework within which we put them, and I will take your Honours to the specific provisions. The initial and important distinction conceptually, in our submission, is the source of the native title rights and interests and their existence as such does not depend upon the common law. Rather, it depends upon the traditional laws and customs from which they derive their content and this is a point which has been acknowledged by this Court and, as a result, the content of traditional rights will vary in different parts of the country. That is, of course, a question of fact as Justice Brennan noted in Mabo (No 2) at page 58 in the middle of the page.
But when one comes, therefore, to a question arising under section 21, it may well be that the extinguishment envisaged by surrender by agreement is such as would distinguish the source of the native title rights, namely, the traditional laws and customs. But the real question in relation to extinguishment is whether or not the common law can continue to recognise those traditional rights and interests and the finding of this Court in Mabo was that they were capable of recognition by the common law, that the recognition did not depend upon an act of acknowledgment on the part of the British Crown and that the claim of sovereignty itself gave the Crown a radical title to the land, plus the political power of disposal. But those two factors alone, or three factors, say nothing about when and in what circumstances there will be an inability of the common law to recognise and thereby provide the machinery of enforcement.
GUMMOW J: Now, the political power of disposal that was exercised here is obscure, is it not? I assume it was a South Australian statute that authorised this to happen.
MR BASTEN: Yes, your Honour, the 1872 Northern Territory Land Act which is, I think, contained in the materials provided by the Northern Territory.
McHUGH J: It is in volume 2.
MR BASTEN: Volume 2 of those materials.
McHUGH J: No 42.
MR BASTEN: Thank you, your Honour. Your Honour, in order to consider the affect of that statute, we would seek to take the Court to the historical context in which it was enacted and I was going to do that in a moment, if I may come back to that. But your Honour is correct, it is a statutory grant.
GUMMOW J: We are not talking the royal prerogative.
MR BASTEN: We are not talking about the royal prerogative. Indeed, in relation to South Australia, even the establishment of the colony was not an act of royal prerogative, it was an Act under the Imperial Parliament. If I might just stay for a moment with the concept of traditional law and custom. It is clear that it can be surrendered. It is clear that it can be abandoned. It is clear, as Justice Brennan said in Mabo, that there may be a washing away which results in the traditional laws and customs no longer being recognised and acknowledged by their own people. That is considered by his Honour at page 60 in the judgment in Mabo. I will not take the Court to it.
However, we say that the mere grant of an inconsistent interest would not destroy the traditional law or custom, although the exclusion from places may, in fact, be part of the process of washing away. We say that the grant of the inconsistent interests merely provides a bar to the common law recognition of the traditional rights and hence a bar to their enforceability in the courts. If the inconsistent interest terminates, the bar is removed. The question is whether, under traditional law and custom, the native title rights and interests in that land continue to exist. That, we say, is a question of fact. The analysis, in a sense, is analogous to the operation of section 109 of the Constitution in circumstances where the inconsistent Commonwealth Act is repealed and one needs to look to see if the State Act, which was rendered inoperative, is still in existence.
KIRBY J: I do not think that is a very good analogy, given that the repeal of an Act is a very formal, national and institutional thing.
MR BASTEN: It is, your Honour.
KIRBY J: And we are talking here about land law where, in every society, it is essential that the law be as clear as it possibly can.
MR BASTEN: We understand the force of that argument.
KIRBY J: Your theory of it is that it washes in and washes out.
MR BASTEN: No, it is not, with respect, your Honour. The theory is that the traditional law and custom must continue to exist with continuity. It cannot cease to exist and be revived, but what prevents the people from asserting their interest in the land may disappear as rarely, but occasionally occurs, in relation to a grant of freehold title. Your Honour, we refer in the written submissions in reply to circumstances in which this Court has acknowledged that traditional interests in land can continue to exist in circumstances where the land itself is not available to the traditional owners. In particular, we refer to a passage in the judgment of the then Chief Justice Sir Harry Gibbs in R v Kearney; Ex parte Jurlama 158 CLR 426 and, in particular, a passage which is set out at 432 to 433 in which His Honour notes that a claim for traditional ownership under the Aboriginal Land Rights Act, from the bottom of page 432, may be based upon sites which are of significance to Aboriginal owners under their traditions and customs, even though the land on which the sites are situated, while forming part of the larger owner of the larger area of their traditional land, is not available to be claimed. And at the bottom of the page, his Honour refers to Stanton’s Case as authority for the same proposition and we have referred in the written submissions, and I think set out, the relevant passages from members of the Court in that case.
Your Honours, before leaving the question of the content of the traditional law and custom, might I just refer your Honours to paragraphs 3.2 and 3.3 in the written submissions, and we set out there a lengthy extract from the decision of Justice Brennan in the Meneling Station Case, The Queen v Toohey; Ex parte Meneling Station 158 CLR 327 at 356, to illustrate the fact that the identity and nature of native title rights and interests differ significantly from those which are to be found under the common law and statute and, accordingly, one needs to start with the understanding that these are not readily translated into terms which are known to our law and we need to avoid, in our submission, the difficulty of seeking to identify them pari passu with our concepts, a danger identified in Amodu Tajeni and referred to by Justice Brennan in Mabo at page 49.
But starting with the concept that the traditional laws and customs are something different and separate from their recognition and enforceability by the common law, the third proposition that we wish to turn to is that the concept of extinguishment which, we say, means the removal of the power of the common law to recognise, has been partially articulated only so far in this country and, indeed, in Canada, but the articulation which has been obtained is based upon a test of legal inconsistency by which, we accept, is meant inconsistency between the respective rights.
The test of inconsistency, in turn, depends upon questions of legislative intention, primarily the intention of the legislature, since grants of interest in this country are generally not matters for the prerogative, and hence, there are questions of statutory interpretation to be addressed in order to determine whether there is a clear and plain intention which is to be found usually by implication. In the power to confer a title which will override or prevail over the rights in relation to the land deriving from traditional law, the proposition that a grant of freehold title was intended always to have that affect, we say, is really an assumption. We refer, in the outline of our submissions, to various forms of freehold which may be created for the purpose of providing public access to land, for example, by way of the creation of a national park, which would not be inconsistent, according to the principles accepted by this Court in Mabo, with the continued existence of native title.
In this case, the Court is being asked to undertake, without findings as to the nature of any traditional law or customs or the rights which may derive from it, an analysis of whether there is inconsistency. We would, however, submit to the Court that one can state two negative propositions. First, the so-called right of exclusive possession, which is often claimed to be the hallmark of a freehold title, may be qualified by statutory rights of entry given to third parties. Modern mining legislation is an example of this phenomenon, as are easements which may or may not originate with the owner.
Secondly we say, and we expand this in the written submission, the common law itself recognised customary rights which formed a burden on the fee simple estate as much as on the underlying radical title. Examples of this include the rights to come on to land, to dry fishing nets, to take turf, to depasture animals and to take firewood; all examples which are identified in the passages from Megarry and Wade and Halsbury which are set out in volume 2 of the materials we provided to the Court and I will not take the Court to them.
The common law, in our submission, protected such interests in order to permit basic means of survival and subsistence of the people who enjoyed those practical means of subsisting. We note at paragraph 4.8 of our submission in reply, the basis analysed in Halsbury for accepting and continuing to enforce such rights. In our submission, this Court would hesitate to conclude that the common law, as imported into Australia, which was able to recognise Aboriginal customary rights, could not permit them to exist as they might in the United Kingdom as a constraint or burden on the title of someone who obtained a right by grant.
McHUGH J: So I suppose your argument would concede that the native title claimants would have to continue their connection with the freehold right - title?
MR BASTEN: Yes.
McHUGH J: So the way you put it, as I understand it, is the fact that it is an estate in fee simple is, in one sense, irrelevant.
MR BASTEN: Yes.
McHUGH J: They cannot - it is just like a pastoral lease: if there is a conflict the native title rights go under, but as long as the native title rights such as hunting, fishing and no doubt other rights are pursued on the land, then it can continue to co-exist with the estate in fee simple.
MR BASTEN: Yes, that is so, your Honour.
KIRBY J: And that is an estate in fee simple granted to private owners as well. Though you have not made claims on private owners, your theory must be that it applies to all fee simple.
MR BASTEN: We have not made claims in relation to any land currently the subject of a fee simple estate, but that is so. Indeed, we say that that is the only issue which arises in this case, because other forms of freehold interest are not before the Court. Indeed, there is some ‑ ‑ ‑
GAUDRON J: But what is the difference? Apparently we do not know the precise status of the land now; is that right? I mean, we do not know if it has been - there is some register or there is some statutory provision; is that right? What is the difference between private freehold and the Commonwealth’s acquisition of freehold for, let us say, Army purposes?
MR BASTEN: Your Honour, what I was seeking to put was that there may be different forms of freehold. In that case, there may be an intention to confer or to arrogate to the Commonwealth as the Crown a right of exclusive possession in land. That is not necessarily the same as a reservation for a purpose which does not require exclusive possession.
GAUDRON J: But you are assuming it depends on something other than the incidents of the title, are you?
MR BASTEN: Yes, I am, your Honour, because within a statutory context, where a grant of freehold is made, for example, for the purpose of maintaining land as an area for conservation or for recreation, it is arguable at least that the purpose is not to exclude persons or to give any particular power of exclusion in relation to whoever the owner may be; it is a trust for public purposes. Your Honour’s example of the Army might or might not be in a different category; there may be a distinct intention in such a case to exclude people.
Your Honour, we would say that analysis falls in a different case, but within the concepts his Honour Justice Brennan discussed in Mabo, in relation to the reservation, possibly, of land for a Crown purpose, in which his Honour was at pains to indicate that a mere reservation would not of itself constitute the acquisition of beneficial ownership, or if it did, it would not necessarily be inconsistent with a continuation of native title.
McHUGH J: It comes to this, does it not, that the mere right to exclusive possession does not itself extinguish native title?
MR BASTEN: Yes, we would say so, your Honour, yes.
McHUGH J: That means, does it not, that much of the argument in Wik was misdirected.
MR BASTEN: There were different leases in Wik, your Honour. There was an historical lease, I think, but as I understood it, the basic areas were subject of existing pastoral leases. So that what I am putting, in a sense, is not that it was ‑ ‑ ‑
McHUGH J: The majority judgments in Wik placed much emphasis ‑ indeed, the cases turned on the fact that they did not give rights of exclusive possession.
MR BASTEN: That is so.
McHUGH J: But on your argument that was really a quite unnecessary step in the reasoning.
MR BASTEN: I am not sure that it was in relation - if there is a continuing lease in existence, it would obviously be necessary to consider the incidence of that lease as against the claim of native title, because the two arise at the same point in time. A question of an historic lease might put itself into a different category on my argument, that is so, your Honour, yes.
KIRBY J: Is it your theory that one looks at the actual facts on the ground rather than the nature of the legal title, which is what several of the decisions of this Court have been at pains to deny?
MR BASTEN: No, your Honour. We are seeking to divide the exercise into two parts. We do not seek to deny what your Honours put correctly as the way the Court has approached the question of extinguishment so far as the effect of the common law and the statutory grant is concerned. What we do say is that once that impediment to recognition is removed, that one then can look at the facts on the ground to see if indeed there still are traditional laws acknowledged and customs followed which provide a continuing link with the land, despite the fact that for a period there may have been inconsistency which prevented the exercise of those laws and customs. So that the question of fact arises, we would say, only at the latter stage in identifying continuity of law and custom, not at the stage of the analysis of the competing interests.
McHUGH J: What if the owner of the estate in fee simple drove the Aboriginals off the land? Does that extinguish their rights then; that is, an exercise of the right of exclusive possession?
MR BASTEN: There may be different analyses depending upon whether the owner was entitled to do so or not. There may be possessory rights which continue and continue to be recognised by the common law and could, therefore, be enforced. There may be circumstances in which that happened as a matter of fact: rights were not enforced and the traditions were washed away over time and, thereafter, they would not be enforceable, we would say. So that that is, at least in part, the answer, your Honour. The other part to the answer is that the assumption which is perhaps made explicit in Wik, but is not necessary in this case, we would say, is that there may be non-accessory rights to land which can continue to exist, and those would not be extinguished by even a right of exclusive possession in other people. I was going to come, in a moment, to the question of ‑ ‑ ‑
McHUGH J: Refresh my recollection, but you can have native title over land even though you are not in possession of the land.
MR BASTEN: We would say, yes, your Honour. In part, that is reflected in the passage from Jurlama, because we say that the concept of traditional ownership reflected in the Aboriginal Land Rights Act is very similar. It may not be identical with, but it is similar to that reflected in the Native Title Act. It is acknowledged there that one can have continuing interests in large areas of land, some of which may not be able to be claimed. Of course, what we see in the present case is that one may have a claim over a large area of land of which only a very small part is subject to the so-called historic tenure. Then the question as to whether the traditions continue to be acknowledged and followed may well give rise to an affirmative answer because the area of land over which they might not have been exercised for a period is small compared with the total country. So we would say yes, in answer to your Honour’s question.
Might I come then to the question of the nature of the interest which was granted in the present case and, on the hypothesis that I have put, or the argument that we have put, the necessary intention which must be found behind the grant is an intention to extinguish the power of the common law to recognise and enforce customary rights and must be derived both from the legislative and executive machinery established in the new colony. Your Honours, for the purpose of this exercise, we have provided the Court with a volume of historical materials, some of which some of the Court will have seen before. The historical context of such legislation has been analysed by this Court in relation to New South Wales in Mabo and in the Native Title Act Case, which also considered the Western Australian statutory context.
KIRBY J: Mabo was about Queensland.
MR BASTEN: Mabo dealt with ‑ ‑ ‑
KIRBY J: I see, because of the ‑ ‑ ‑
MR BASTEN: Because of the history of the country. The Court concluded that in neither colony did the acquisition of sovereignty by the British Crown give rise to the extinguishment of native title, rather that the Aboriginal inhabitants were dispossessed parcel by parcel of their lands. In our submission, the contemporary documents, the documents before the Court, reveal differing views held about the nature of the customs and traditions of Aboriginal inhabitants. There are passages, both in the Native Title Act Case and in the Wik Case, demonstrating that government officers held different views about whether or not, in the 19th century, Aboriginal inhabitants had an interest which could be recognised in land, and the disposition, in our submission, was the practical result of the failure to resolve the tensions between those views.
The South Australian documents indicate, in our submission, a deliberate intention to resolve that tension and to do so, consistently with the proposition that Aboriginal rights should be respected. Your Honours, we rely on a number of documents for that purpose, which are set out in volume 3 of the materials. I think the references have been adequately provided to your Honours in the written submissions, but there are there categories of document, if I may so describe them. The first category is the letters and exchanges between Sir George Grey and the colonising Commissioners for South Australia, in particular, Robert Torrens, which give rise to the question of how it is possible to protect the native title rights of the inhabitants of South Australia.
GUMMOW J: That assumes a geographical meaning.
MR BASTEN: It does, your Honour. The proposition - your Honour means in relation to the Northern Territory?
GUMMOW J: What they were talking about then before the province of South Australia was established.
MR BASTEN: Undoubtedly, your Honour.
GUMMOW J: It was a very small area.
MR BASTEN: It was not a very small area, I think, your Honour ‑ ‑ ‑
GUMMOW J: It was in comparison with South Australia plus the Northern Territory.
MR BASTEN: Yes, it was half the size, or less perhaps.
GUMMOW J: It was less than the modern State of South Australia.
MR BASTEN: It was, your Honour, yes. I am sorry, it is probably significantly less. The proposition that we put in that regard, your Honour, is that the power of the South Australian legislature was - or to the extent that the power of the South Australian legislature was constrained by its creation and by the instructions given but to the Governor prior to 1863, continued thereafter to the extent that the Northern Territory became part of South Australia and the laws of South Australia thereafter applied to the exclusion of those of New South Wales.
I was saying, I think, that there are three categories of document. What we say, in summary, in relation to the first category, those that preceded the establishment of the colony, were that indicated an intention that the experience derived from Western Australia and New South Wales should not be repeated in the colony of South Australia. That appears, perhaps, in summary, most clearly from a document at tab 6 in volume 3, a letter from Torrens to Grey dated December 1835, received December 23, at a passage from the bottom of page 9, where the author acknowledged that the primitive view had been adopted in the colonisation of Australia generally, acknowledged the wish that the Commissioners, at the top of page 10, take account of the rights of Aborigines found occupying or enjoying the proprietary rights in the soil, and at two‑thirds of the way down page 10 state:
The Commissioners believe that hitherto, in the Colonization of Australia, the case of Native occupancy has never yet been provided for before hand, and they are not only willing but desirous that South Australia should in this respect be made an exception to the general rule.
They continue over the page in relation to the protection which they say should be given to:
the Natives in the unmolested exercise of their rights of property in Land, should such a right be anywhere found to exist.
HAYNE J: What is the legal manifestation of this policy in relation to the land which is the subject of this action?
MR BASTEN: Your Honour, the legal manifestation is twofold: firstly, when one comes to the letters patent establishing South Australia under the Imperial Act, the letters patent set out at tab - I am so sorry, they are in the Northern Territory’s documents at tab 38 - one finds a proviso, which I think is set out in our outline of submissions ‑ ‑ ‑
HAYNE J: Yes, I have read that. What is the significance in law that you attach to that proviso or the other matters to which you are about to come?
MR BASTEN: Just identifying the other category, if I may. It is the instructions to the governors who are responsible for the execution of the laws in the Territory. Your Honour, we put it in two way: first, there is an intention to impose on the legislative authority of the colony, which is, of course, vested in both the assembly ultimately and the Governor, a constraint not to make grants of interests which will have the effect of excluding native inhabitants from their land if they are in occupation of the particular land. Alternatively, we say that the expressions in relation to South Australia demonstrate an express contradiction of any clear and plain intention to effect or permit the permanent extinguishment of customary rights of the native inhabitants in their soil.
KIRBY J: This was the will of the imperial executive.
MR BASTEN: Yes.
KIRBY J: But as we learned in Mabo and in Wik, the wishes of the local settlers were quite different from that which was coming out from London.
MR BASTEN: We say two things in relation to that, your Honour. First, what these documents indicate is an intention to resolve the matter in a way which differed from the manner in which it had been resolved in the other parts of the colony.
KIRBY J: That is consistent with the goodwill which the imperial authorities appear generally to have evinced towards the Aboriginal natives of Australia. We struck a brick wall when it reached the colonies themselves, the province.
MR BASTEN: It differs in this respect, your Honour, that both the imperial officers in London and the colonisation Commissioners in South Australia exhibit both a consciousness of what has happened elsewhere and an intention to do something differently and, in particular, to recognise that there is an existing customary right of occupation and use of land. It is that which appears never to have translated itself into general acceptance in relation to the other colonies. It may be that grants continued to be made and actions taken in the land mass of South Australia and, after 1863, the Territory, which were inconsistent with those clear expressions of intent.
What we say, with respect, is that when one is seeking to determine whether there was a clear and plain intention to extinguish the native title though, these documents suggest that even where there was a grant of an inconsistent interest, such was not the intention. Your Honours, that is not a position which is necessarily inconsistent in principle with the common law. As this Court has noted, I think in Mabo, in the leading American authority of Johnson v McIntosh, Chief Justice Marshall acknowledged the possibility that where a grant was made in Indian territory the land would be held subject to the continuing occupancy of the native inhabitants.
So that if one is simply seeking to identify, firstly, an intention and secondly, a capacity of the common law to co-exist with customary rights, then we say this is a case in which both are clearly established. If the result of the foregoing analysis is either that the native title rights and interests were not overridden, in this case by a grant under the 1872 Northern Territory Land Act, or that the effect of the grant was not to preclude future recognition upon termination of those interests of traditional laws and customs, then either of those conclusions gain support from the terminology of the Native Title Act.
In this respect we rely upon two provisions. Whilst the Native Title Act, as your Honour the Chief Justice noted, refers to the possibility of extinguishment in section 11, it also anticipates that there may be continuity of traditional law and custom which can give rise to statutory recognition despite the fact that there may be extinguishing interests in force. I refer to section 47, at the bottom of page 27 of the Act, which permits an application to be made in relation to land over which a pastoral lease is held by or on behalf of Aboriginal interests, a limited exception which, of course, is not relevant in the present circumstances as having direct application. But what it reflects, and expressly in the note at the end of subsection (2), is that other interests - I am so sorry, subsection (2) provides that any extinguishment of the native title by:
(a) the grant of the lease itself;
(b) the creation of any other interest itself in relation to the area -
and so, on must be disregarded. The Act then notes that:
The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
So that there is a recognition, we say, there of the fact that traditional laws can continue to exist and, in the circumstances provided, may be recognised.
Similarly, your Honours, in section 223 - I took your Honour Justice Gummow’s request before to the definition of native title rights and interests. Section 223(3) recognises that the statutory definition in the Native Title Act includes traditional rights which have been “converted into, or replaced by, statutory rights”. Without taking your Honours to them in detail, we identify in paragraphs 3.8 to 3.12 of the written submissions certain statutory rights, in particular, rights for the protection of sacred sights and heritage protection, which depend upon the concept of traditional customary law. In the case of the Northern Territory legislation, provide for access to land and appear to be included within the definition of native title rights for the purposes of the Native Title Act.
GLEESON CJ: The structure of 223(1), when you read it together with sections such as section 11 or section 21, seems to indicate that when the Act speaks of extinguishing native title, it is speaking of extinguishing the communal group or individual rights and interests et cetera, rather than suspending the recognition referred to in paragraph (c).
MR BASTEN: That is certainly an interpretation that we would accept in relation to section 21, your Honour. We say section 11 is ambiguous as to that effect. We say that section 47 suggests that the question of the existence of the laws and customs and the connection with the land is something separate from the extinguishing interests, namely the grant of rights which are inconsistent with those laws and customs.
GLEESON CJ: There is no suggestion in the language of the Act that what is extinguished is the laws and customs, what is extinguished is the rights and interests.
MR BASTEN: I may have misunderstood your Honour. The rights and interests which are possessed - there is a three-part requirement of the definition in 223(1) which is that there are:
the rights and interests are possessed under traditional laws acknowledged, and the traditional customs observed -
Those rights and interests are not themselves rights and interests in the land as such, according to the definition; rather, the people are required by the same laws and customs to have a connection with the land or waters, but the rights and interests themselves are such as are recognised by the common law. We would say one has to consider what that means, whether it is capability of being recognised or being currently recognised. In our submission, the rights and interests are not extinguished by the grant of an interest which is inconsistent with them. The rights and interests may be expressly extinguished by a statute which has that effect or by a surrender but, in our submission, they are not extinguished simply by the grant of a countervailing interest.
That is the issue which arose in relation to the effect of the pastoral leases in Wik, which was not perhaps determined in that case. We do not see there being anything in the terminology of the statute which adopts the term “extinguish”, presumably from the common law but without defining it, as having a contrary result. Your Honours, in a sense section 238, which provides for the non-extinguishment principle, appears to give rise to a contrary analysis with respect to the question of extinguishment. It certainly provides that in circumstances where the Act or its effects - and I am looking at subsection (6) - are removed:
the native title rights and interests again have full effect.
That does not necessarily indicate that they had previously, as it were, been destroyed but, rather, that their effect was no longer enforceable at common law.
GLEESON CJ: In so far as a question of construction of a provision of the Act arises, what is the status of the preamble?
MR BASTEN: We would say that the preamble is a statement that this Court has taken into account on previous occasions, and would take into account in considering the purpose and meaning of the Act.
KIRBY J: In the Communist Party Case some reservations were expressed about, as it were, the Parliament determining disputed issues of fact which are matters for the Court.
MR BASTEN: We certainly would say that it is not so much a determinative feature of the Act as part of the ‑ ‑ ‑
KIRBY J: Exhortation.
MR BASTEN: Yes, part of the legislative history which indicates the purpose of the legislation, I think.
McHUGH J: You are trying to argue this case from the point of view of concepts without paying any attention to what the Court said in Mabo. What you have got to take into consideration, at least as far as I am concerned, is this, that Mabo was a development of the law, and in developing the law the Court takes into account what expectations may be defeated. So far as I was concerned, my view was that native title would apply basically to only unalienated Crown land. If, for example, I thought it was going to apply to freehold, to leaseholds, I am by no means convinced that I would have not joined Justice Dawson, and it may well be that that was also the view of other members of the Court.
If the Court took the view that an estate in fee simple extinguished native title, why should we now develop that to defeat the expectations on which Mabo itself was founded? I mean, the pastoral leases themselves, if that issue had come before - or had been involved in Mabo as part of the Mabo issue, again, I am not sure, just speaking for myself, whether I would have subscribed to the Mabo doctrine. But in the setting of the time, and given the reservations in Mabo, it seemed to me proper that the Court should take the step that it did, because it was going to affect basically unalienated Crown land. So the position was, in one sense, the same as it was in 1788. Do you understand what ‑ ‑ ‑
MR BASTEN: I understand the concern your Honour is expressing, but the question which really was not addressed, as we would read Mabo, in relation to the recognition by the common law of indigenous customs and traditions, was the temporal one. Your Honour talks of unalienated Crown land. We are happy to acknowledge ‑ ‑ ‑
McHUGH J: But the thrust of all the judgments in Mabo - I think all of them - was that a grant of exclusive possession defeated native title and those who had exclusive possession no longer had anything - or had nothing to fear from native title. Indeed, we held in Mabo that the particular leases in that case had extinguished native title.
MR BASTEN: I understand what your Honour is putting to me. Without revisiting the question of the leases, perhaps, because this Court has considered the statutory construction, at least in a different context, of leases in Wik, the ‑ ‑ ‑
KIRBY J: On the view of some members of the Court, that did not defeat expectations; the expectation was that the two would live together.
MR BASTEN: Yes, that is so. I suppose what we say in relation to the context of the current case is that where land - your Honour uses the phrase “unalienated Crown land”. Where land is unalienated, albeit land which has been the subject of alienation in the past, then the question arises as to why it should not be treated in the same way as land which has never been alienated. The answer to that question may well depend upon the manner in which the land is dealt with within the statutory scheme.
McHUGH J: As I understood, one of your basic submissions is that the mere grant of an estate in fee simple does not extinguish native title.
MR BASTEN: Yes.
GLEESON CJ: What, in your submission, is the relevance of the fact that in the present case the land was reacquired by the Crown?
MR BASTEN: That is so.
GLEESON CJ: No, I said, what is the relevance ‑ ‑ ‑
MR BASTEN: I am so sorry. What is the relevance of it?
GLEESON CJ: Yes. What does it matter, in your submission?
MR BASTEN: For this reason, your Honour, that if the effect of the grant depends upon the statute, then one should look to the statutory context, after reacquisition, to determine whether or not the Crown has obtained a beneficial full ownership of the land or whether it has simply reassumed the radical title together with the full power of disposition of a fee simple estate.
GLEESON CJ: What would be the situation in the present case if the Crown had not reacquired the land?
MR BASTEN: If it had remained an estate in fee simple in a private person?
GLEESON CJ: Yes.
MR BASTEN: We would say these arguments that I am putting at the moment would not run.
GLEESON CJ: Why not?
MR BASTEN: I suppose I should be more specific as to which arguments. The question as to - your Honour, there are a series of propositions which need to be considered, none of which have any factual basis for their consideration. So that if one needs to consider whether or not the traditional laws and customs have continued, we simply do not know. But we would ‑ ‑ ‑
GLEESON CJ: But to that the reacquisition is irrelevant.
MR BASTEN: The reacquisition is irrelevant. Whether they can be enforced at common law, though, may be highly relevant to the reacquisition, or the reacquisition may be relevant to it, because if the Crown, in reacquiring the land, places the land back into the category of Crown lands or wastelands of the Crown, however they may be determined, and does not indicate an intention to obtain exclusive possession for itself ‑ and in that regard, one would look to such provisions as those relating to trespasses on Crown lands, provisions which were interpreted in Mabo and in Wik as not applying to native title holders or traditional owners ‑ then one may, in the result, have a situation which is simply no different than the Crown ‑ ‑ ‑
GUMMOW J: Just a minute. The notion of wastelands involved within it that lands dedicated for public purposes were no longer wastelands.
MR BASTEN: That is so.
GUMMOW J: When this was reacquired by the Commonwealth it was certainly for a public purpose. So how could it suddenly become wastelands again?
MR BASTEN: It was for a public - may I say in response to that, the subsequent reacquisition and what happened thereafter are not, as I understand it, matters which are before this Court. They were not the basis upon which his Honour upheld the first respondent’s motion. We certainly have not analysed the consequence of the reacquisition in the submissions that we have made.
GUMMOW J: I thought the consequences of the reacquisition were vital to your submissions? I thought you just ‑ ‑ ‑
MR BASTEN: Merely the fact that they returned to the Crown. What happened thereafter ‑ ‑ ‑
GUMMOW J: But you said returned to the Crown and became wastelands, as I understood it. What I am putting to you is, that is not so.
MR BASTEN: There is no evidence that they became ‑ ‑ ‑
GUMMOW J: It does not need evidence, the terms of the land acquisition legislation ‑ ‑ ‑
MR BASTEN: It depends upon the purpose of the acquisition and whether, in terms of what Justice Brennan analysed in Mabo ‑ ‑ ‑
GUMMOW J: Why cannot we see the Commonwealth of Australia Gazette that brought about this acquisition? Was that not before the trial judge?
MR BASTEN: Yes, it was before the trial judge. I am merely saying that that was not how I understood the question removed to arise, but I understand what your Honour is putting to me. What I am suggesting to your Honour is that there is a further question which, consistently with the analysis of Justice Brennan in Mabo, is that the mere reservation of land for a public purpose is not necessarily inconsistent with native title. Accordingly, one needs to consider whether, in the present circumstances, the acquisition for a purpose differentiated the land from land which might otherwise be reserved by the Crown, no doubt by a formal deed, for a particular purpose. If his Honour’s analysis is correct, namely that native title rights could continue to exist in relation to such land prior to the giving effect of the purpose, then it would be sufficient, for our purposes, that that had happened in the present case. Whether they did or not is a separate question.
GUMMOW J: His Honour was not talking in this context of revival.
MR BASTEN: No, his Honour was not.
GUMMOW J: It was removal of suspension or whatever one ‑ ‑ ‑
MR BASTEN: Rerecognition, perhaps, rather than - we do not ‑ ‑ ‑
KIRBY J: Is not the difficulty with this theory that every centimetre of land in Australia is plunged into uncertainty because of the fact that you have to look into the actual facts. If the Commonwealth reacquires and builds a building, that is one thing. If it puts up a dockyard, that is slightly different.
MR BASTEN: Yes.
KIRBY J: If it creates a weapons testing site, that it different still. If it creates a national park, different once again, perhaps more hopeful from your interests, but that is to plunge the law of land title into totally unacceptable uncertainty, that you are looking not at the nature of the title but you are looking at the nature of the user of the land pursuant to the title.
MR BASTEN: Well, in relation to Crown held land, that is so, your Honour, and that is what, in the middle of page 68, Justice Brennan was saying in Mabo 175 CLR, as we read it, that one ‑ ‑ ‑
KIRBY J: But did not his Honour in Wik, in the passage which you have constructed in your submissions, make the point that it is the nature of the title, not the nature of the user?
MR BASTEN: Yes.
KIRBY J: So, whatever his Honour said in Mabo, he seems to have come back to insisting upon and, I think, this was a common theme of a number of the judgments in Wik, that you are not looking at the user, you are looking at the title, because that recognises the need of land law to have certainty.
MR BASTEN: Well, your Honour, I am not sure that we extracted in the submissions the passage from his Honour then the Chief Justice in Wik, in relation to that aspect of the analysis.
KIRBY J: It may have been in the Northern Territory’s written submissions. Somebody extracted what his Honour said. It is consistent with what I said in Wik and what other Justices said in the majority.
MR BASTEN: Well, yes and no, your Honour, except that the categories of interest to which his Honour adverted, I think on page 84 through to 86, were threefold, and at the bottom of page 85 his Honour identified:
The third category of laws and acts by which the Crown acquires a full beneficial ownership that extinguishes native title. That may occur by acquisition of native title, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Or the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land -
Then, after reference to the Racial Discrimination Act:
In the latter case, the appropriation of the land gives rise to the Crown’s beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title -
And through to the end of that paragraph. Now, all I am really saying is that the question of the effect of a re-acquisition by the Crown is not necessarily, in my submission, it certainly has not been considered in detail by this Court, as being necessarily inconsistent with native title or the acquisition of beneficial ownership, because once the land returns to the Crown the question is, what status the Crown gives the land and if it is sufficient that it returns the land to be dealt with in a way which might otherwise have been dealt with had it never alienated it, then we would submit that it does no more that re-acquire the radical title free of the estate, which it has acquired.
KIRBY J: I thought the theory of radical title, correct me if I am wrong, was that it was extremely fragile and that once there was an exercise by the Crown of a grant inconsistent with native title, then the radical title is gone forever. Radical title was a postulate, a theory, like some feudal land-law theories, but it was very fragile, and I think some of the Justices said that in Mabo. Am I wrong in that, or not?
MR BASTEN: No, in Mabo at page 50, that is the expression that his Honour Justice Brennan used, that it was:
a logical postulate required to support the doctrine of tenure -
All that we were putting was that once the land is re-acquired by the Crown, it then has the power to grant an estate of fee simple or otherwise in the land. The logical postulate is that it must at least have radical title plus the power, and that is sufficient to support a future grant of an interest in the land consistently with the doctrine of tenure.
GUMMOW J: It all comes from statute, does it not?
MR BASTEN: Well I think that was the position from which I started this proposition in a sense, your Honour.
GUMMOW J: You have got to look at the statute.
MR BASTEN: That may well be right, and if one looks at the - that this land was not re-acquired under the 1872 Act, but it is clear that, had it been, it would have formed part of the wastelands of the Crown again ‑ ‑ ‑
GAUDRON J: That is what is not clear.
MR BASTEN: Well, it is not relevant perhaps directly, except in relation ‑ ‑ ‑
GUMMOW J: It would not have formed part of the wastelands of the Crown, that is what I adverted to about 10 minutes ago, because that is the defined in the 1872 Act as excluding land reserved for the public purpose, et cetera.
MR BASTEN: I am sorry. Your Honour is hypothesising that the land was acquired and reserved for a particular purpose.
GUMMOW J: Or, it also excluded lands which had not previously been granted, you see. Once it was granted under the 1872 Act, radical title went out the window; it did not come back again. That is not the scheme of the Act.
MR BASTEN: There is a provision in the Act, your Honour, which has a different effect; I may not be able to put my - could I come back to that point, your Honour. I thought there was another provision.
GUMMOW J: Yes.
MR BASTEN: In a sense it does not affect the present case, because the land was not re-acquired by the South Australian Colonial Government under that Act, or indeed at all.
GUMMOW J: No, it was acquired by the Commonwealth so we have to look at the ‑ ‑ ‑
GAUDRON J: For the Commonwealth’s purposes.
MR BASTEN: Yes.
GAUDRON J: And presumably, in that regard, the Commonwealth acquired what ordinarily passes as property in land, which is an estate interest title, not radical title.
MR BASTEN: Well, what we were seeking to put, your Honour, was, in a sense, that that is a curious proposition, because the Crown itself does not hold an estate of itself and therefore, to say that the Crown, where it has not appropriated the land in a fashion which gives it beneficial ownership, is not easily understood to be the holder of an estate in the land and it ‑ ‑ ‑
GAUDRON J: There used to be a company called Crown Estates operating in Australia, which did just that; it held a number of estates.
MR BASTEN: Well, that may be possible; I am not suggesting that the capacity is not there, your Honour, but rather that it would be something that one would perhaps, in any event, look to the statute to determine, rather than principles of the common law.
KIRBY J: Was the Northern Territory before the federal Constitution a creature of the Crown’s prerogative, or was it based on the South Australia Statute or part and part?
MR BASTEN: It was part of New South Wales until excised for the purpose of forming a colony for a few years of Northern Australia, in 1840s I think, and it was then annexed by South Australia in 1863 by letters patent.
KIRBY J: Is this traced in any case or?
MR BASTEN: Yes, it is. It is actually traced in, I think, Milirrpum, the judgment of Justice Blackburn in Malirrpum v Nabalco (1971) 17 FLR, I think around pages 270 and following, in recollection.
KIRBY J: Can I put this file of South Australian material away? You said there were three categories of document, and you got to tab 6.
MR BASTEN: I am sorry. The three categories were: firstly, the correspondence between the Commissioners and the Colonial Officers, Grey on behalf of Lord Glenelg; secondly the letters patent which established the colony of South Australia and thirdly, the instructions given to Governor Fergusson in 1868, shortly prior to the enactment of the 1872 Act which, we say, reflect the continuing intention that Aboriginal inhabitants not be dispossessed of lands in which they were in occupation. So those were the three categories of document on which we relied.
KIRBY J: And the references to them are in your written submissions.
MR BASTEN: The references are in the written submissions, your Honour, if that is convenient.
Your Honours, the next point we wish to make was that the validity of the 1882 grant, and arguably the consequences which have flowed subsequently, may depend upon whether the land which was occupied by, almost certainly, although I suppose there are no facts as to this at the moment, but the Aboriginal traditional owners at the time might have been affected by the existence of a possessory title in the traditional owners, based on their continuous occupation for more than 50 years between the acquisition of sovereignty in 1825 and the date of the grant or, alternatively, whether they may have had rights which were obtained under the Prescription Act of 1832, which would be valid against a title holder under the 1882 grant. And we say that on the basis that the application of the Prescription Act, the Imperial provision, has been considered to be part of the law of South Australia, was so accepted in Golding v Tanner (1991) 56 SASR 482.
We make a reservation in relation to those points, because they cannot be pursued further usefully at this stage, not only because no facts have been found, but because the native title application is not even before a court, as a result of which these issues could have been appropriately defined. That is a problem, in a sense, of the vehicle by which this matter has come before the Court.
GLEESON CJ: If you are right, the word “extinguished” is extremely inappropriate in this context, is it not; all that ever happens is that it is suspended?
MR BASTEN: Well, we would say that that may be a difficult term in this context, your Honour, because it makes little sense to say that the enforcibility of a right has been suspended where the enforcibility no longer exists and there is no determinate period during which the bar on enforcement continues to exist. If one is looking at a determinate period, suspension has some meaning perhaps.
GLEESON CJ: I thought that one of the things that the court said in Mabo was that if the Crown used its land without alienating it, used it in a way that was inconsistent with native title, that extinguished native title.
MR BASTEN: Yes.
GLEESON CJ: I am not sure that the New South Wales Government has ever alienated the land on which Government House in Sydney is erected, I am not sure, but it has certainly used it in a manner that appears inconsistent with native title.
MR BASTEN: Yes, and during the period of that use it would undoubtedly be the case that there would be no enforceable native title rights recognised by the common law or enforceable under the Native Title Act.
GLEESON CJ: And your expression “during that period” indicates that this is merely something that operates to suspend, rather than to extinguish native title.
MR BASTEN: It operates to put a stop to the enforcement. If the bar is removed, one must then inquire as to whether the traditional laws and customs are still acknowledged and operative. If they are then it may - and one would have no doubt they were not in that case. In that case ‑ ‑ ‑
GLEESON CJ: So non-use as Government House might put it in peril of a native title grant.
MR BASTEN: I very much doubt it, your Honour.
CALLINAN J: There has to be uninterrupted adverse possession, that is what you are saying?
MR BASTEN: Yes, your Honour. Well, it may not even be uninterrupted adverse possession, your Honour, because there can be destruction of native title by other means, for example, the tribe in which the native title rights were originally vested may simply have become extinct or disappeared.
CALLINAN J: So long as there is one survivor.
MR BASTEN: So long as there is one survivor, your Honour, who continues to observe the traditional laws and customs in relation to that land ‑ an unlikely scenario.
CALLINAN J: If that situation exists and there is any interruption at all to adverse possession, then that survivor becomes immediately entitled to claim a form of native title.
MR BASTEN: That may be so, your Honour, depending on the circumstances, yes. One still has to - - -
CALLINAN J: It has to be so on your argument.
MR BASTEN: Yes, as long as one satisfies the other elements of the definition in section 223, which require the continuation of the laws and customs and the continued existence of a connection between the person and the land, under paragraph (b), but subject to those qualifications, yes, your Honour.
GLEESON CJ: So your theory, it is not a question of right, it is a question of enforcibility?
MR BASTEN: Yes, and that is a phrase which is used both, I think, in the judgments in Mabo and in Wik, that the concept of common law recognition is, as it were, recognition for the purposes of enforcement by the common law and the common law courts.
GLEESON CJ: I noticed that in section 235(2(b) there is a reference to:
held ordinary title to the land -
which I assume is title under developed law, but is that defined anywhere, “ordinary title”?
MR BASTEN: Yes it is; it is a defined concept in section 253, your Honour, at the top of page 125.
KIRBY J: Is there any mention in the Act of “freehold” or “fee simple”; do the words appear anywhere in the Act?
MR BASTEN: In the Native Title Act, no, your Honour.
HAYNE J: Yes, there is. “Ordinary title” ‑ ‑ ‑
MR BASTEN: I am so sorry. In the definition there is, your Honour, yes, I though, your Honour - well there may be other indications, I am sorry, I should not - I had in mind future acts, but in relation to past acts, effects are given depending upon the nature of the interest which may have been invalid as a result of the existence of native title. The definition in section 229 of category A past acts, for example, provides an effect in relation to the validation, where the past act consisted:
of a grant of a freehold estate -
KIRBY J: Is that not significant? Does that not suggest that the scheme of the Act is not consistent with the theory that native title can recede and then reappear?
MR BASTEN: Well, not necessarily, your Honour, because the provision expressly limits itself in paragraph (2)(a)(i) to:
the grant was made before 1 January 1994 and the estate existed on 1 January 1994;
So that, whatever inference one draws, it is limited temporarily to a particular category of past acts.
KIRBY J: And, is that definition of “ordinary title” the only place in which “fee simple” appears in the Act? I mean, you can do a computer search on these things now.
MR BASTEN: Yes, I have not myself done it, your Honour, and I probably should not answer that question. Mr Katz suggests it appears in the preamble. The term “freehold” comes up elsewhere, but not, I think, “fee simple”. Your Honour, unless there are any other matters, given we have attempted to divide the time, as your Honours may be aware, those are my submissions.
GLEESON CJ: Yes, thank you, Mr Basten. I should have mentioned earlier that the Court has been notified by the solicitors for the second respondent, the second respondent does not wish to be heard on the appeal and will abide the decision of the Court, save as to costs.
Was there some agreement between counsel as to the order of addresses?
MR CASTAN: There has, your Honour. Your Honours, we adopt, with respect, the submissions that have been put by Mr Basten. We would seek to add some remarks which perhaps give your Honours a broader picture of the different nature of the way in which this concept of the historic freehold actually operates in the Yorta Yorta case, which is at a stage where it has been heard, gone to trial before his Honour Mr Justice Olney, having gone through the entire processes of the Act, including the various matters that have been earlier discussed and been referred in accordance with the provisions of the Act. It has gone to trial and evidence has been given over a very lengthy period last year. There was then a lengthy adjournment for the preparation of submissions and submissions on the facts and the law to his Honour concluded on 15 May and his Honour has reserved.
Now, in that case, the issue of the historic freehold, or as they have sometimes been referred to, “ghost freeholds”, has arisen as part of the claim; the claim in the Yorta Yorta case relates to land on the Victorian and New South Wales sides of the Murray River, in very broad terms. It is a claim which relates only to, what I will call, current Crown lands. It includes some 180 separate isolated items, if I can call it that, or plots, of historic freehold. That is to say, land which is now, in the Victorian case in particular, indistinguishable portions of State forest, and have been in that State forest for periods up to 90 years, as just part of State forests, and have been the subject of reserves or declarations, as comprising part of State forests for up to 90 years. But, portions of which, in that otherwise physically and now legally indistinguishable area of State forest, there are these ‑ it is pock-marked, so to speak, with, in the Victorian case, I think it is some 114 separate plots of land that some time in the 19th century in most instances, and for periods of 20 or 30 years, were the subject of freehold grants.
So what we are dealing with is very different, both in procedural terms to what is this case, in the matter that is before the Court, and in terms of the way in which the historic freeholds impact is very different. I might go immediately to a question that was raised by your Honour Justice Kirby, which was the question of certainty. Of course, in our respectful submission, the notion that additional certainty is obtained by not treating land as it now is when a claim is made, and looking both to the continuity of the traditional connection with land of the persons who are the applicants, and the status of the land as it currently is; that is to say, is it currently freehold land or is it leasehold or is it unalienated Crown lands or is it a reserve or whatever the case may be. That provides certainty.
Uncertainty is provided, if the determination of the issue is decided not by reference to the current state of connection, of traditional claimants, on the one hand, and the current state of the Crown tenure, on the other hand, or other tenures on the other hand, but the necessity to go back and look historically at what occurred in the 19th century in records which inevitably, in some instances, will be imperfect; in other cases they may, of course, be perfect, and try and work out whether or not particular grants were made, what they were and what their effect was, and then determine the status of the land and the way in which the claim is to be dealt, not by reference to its current status, but by reference to some historic events, which have no ‑ ‑ ‑
KIRBY J: I accept that there is an element of uncertainty, but it is less uncertainty if there is a clear rule, grant by the Crown of an estate in fee simple, grant under legislation estate in fee simple, extinguishes native title. There cannot be greater certainty than such a rule.
MR CASTAN: Well, in our respectful submission, there is no uncertainty in saying, on the termination of as fee simple, the land is then to be determined in accordance with its then status.
KIRBY J: That is the uncertainty of searching among the rubble of the facts, in each case, and that is going to take the native title and the courts of this country forever, centuries, to try and sort out every centimetre of land.
MR CASTAN: No, it is not every centimetre of land. Take the Yorta Yorta case, the claim has been made which excludes all private freeholds. So no private freeholds are the subject of claim. It has been made over what is termed “unalienated Crown lands” or Crown lands.
GLEESON CJ: Could private freeholds be the subject of a claim?
MR CASTAN: On our principal submission, no.
GLEESON CJ: Why not?
MR CASTAN: Because, in our respectful submission, we would accept that the state of authority is that there is a grant made which, as this Court has said, is inconsistent or conveys such rights that are inconsistent with the continuing recognition of the traditional rights and interests that may continue and, notwithstanding that continuance, this Court has said, and we would accept as what I will call the “principal argument” that there cannot be a continuity of recognition of those interests.
But that situation is simply not so, and what one comes back to is, what if the touchstone for this? Leaving aside questions which might be determined perhaps as ones of desirable result or desirable outcomes, which inevitably are raised when one talks about certainty, one comes back to what is the underlying principle? The underlying principle on which this area has developed is that of exclusive possession, on the one hand, and inconsistency.
McHUGH J: What about exclusive possession, Mr Castan? Do you make the same concession in respect of leases in the common law sense? Let us say, a lease of three years, five years. Does the grant of such a lease extinguish native title?
MR CASTAN: It extinguishes in the sense in which we accept; extinguishes for the period of the lease, and, when a claim is made, one looks to the status of the land as it is at the time of the claim.
McHUGH J: So is your argument only directed to those areas of land which, in effect, revert back to the Crown?
MR CASTAN: Yes, that is what the case is about and that is what the issue is about in the Yorta Yorta case and we are here in relation to those areas only and we are here in relation only to what are called, as I have called them, the historic freeholds and leases or, as they are sometimes called in a colourful way, but perhaps more permanently conveys what is really involved here, “ghost freeholds” or “ghost leaseholds”. Historic events, which have no bearing on the current aspect of the land, no bearing on its current use, no inconsistency with the native ‑ ‑ ‑
KIRBY J: Life the pastoral lease in Wik? That was a ghost.
MR CASTAN: One of them, I think, your Honour.
KIRBY J: Can I ask you, you got your claim registered under the Native Title Act and the registrar then made the same orders in this case. Did anybody seek to knock you out on the basis that there was a fundamental flaw in respect of these so-called “ghost” grants of fee simple?
MR CASTAN: No, your Honour.
KIRBY J: So you went to trial in the native title ‑ ‑ ‑
MR CASTAN: Through the native title track and then referred into the Federal Court under section 74 of the Act.
KIRBY J: On the question of whether these so-called “ghost”- larger questions.
MR CASTAN: No, no, on the totality of the claim; it is a case which has involved native title claim over substantial areas of land, the vast majority of which is not the subject of any such freeholds or leaseholds, which is unalienated Crown land. These areas happen to be part of the land, the subject of the dispute, the case, and only tiny portions in proportion to the total amount, the subject of the claim that has been heard.
KIRBY J: So questions of law were stated by the Native Title Tribunal to the Full Court or there is a provision in the Act for the reference of the whole matter. Is that it?
MR CASTAN: Yes.
KIRBY J: So the whole matter was referred?
MR CASTAN: Yes.
KIRBY J: And does that mean that, in this case, if the Native Title Tribunal, in the course of its deliberations, says the whole matter should be referred into the Federal Court, it could likewise refer the whole matter into the Federal Court?
MR CASTAN: Yes, your Honour. The way the Act is designed is that a matter goes through to the Native Title Tribunal, there is a process for negotiation or mediation, if it is a contested matter, and ultimately, if it is not agreed, and no mediated result can be achieved, the entire claim goes to the Federal Court. So ultimately the Federal Court decides the whole of any native title claim that is made into the tribunal and, although there were some provisions which seem to attempt to provide for determinations by the Native Title Tribunal itself, they have been of course now held to be ineffectual by reason of the Brandy principle emerging from this Court.
So, the way in which the system operates is that the entire case, the entire conflict, the entire claim, goes to the Federal Court and there ‑ ‑ ‑
KIRBY J: What is that section?
MR CASTAN: Section 74 is the section by which the entire matter is referred, and I should make it clear that the case we are dealing with, the case of the clients for whom we now appear, is a case involving a native title claim over what is, in substance ‑ and I am not sure of the percentages, but it is well over 90 per cent of the total area claimed ‑ is unalienated Crown land, which has never been the subject of any interest granted by the Crown and tiny pockets of land, pock-marked, so to speak, across that area, are patches which have been these short leaseholds or freeholds that were issued and then were ultimately re-acquired by the Crown.
GAUDRON J: Well, when you say re-acquired, I suppose that is right, but they acquired the estate or interest, did they not, at that stage, that had previously been granted? The land did not necessarily revert, as I think was the expression earlier used, to unalienated Crown land.
MR CASTAN: It did not revert. It is not entirely clear with all of them, because when one goes to the historical record or the title records one does not, in every case of these 180 instances, find all the details of how that actually worked and unfortunately this section has not been provided to the Court. I thought until just an hour ago that it had and we will endeavour to ensure that it is made available to the Court, but in Victoria the relevant provision is section 8 of the Land Act 1890 and it is quite simple. It is:
Any land acquired by purchase or otherwise by the Crown and conveyed to Her Majesty or to the Board, except land acquired for railway purposes, may be sold granted conveyed or otherwise disposed of by the Governor in Council in the name and on behalf of Her Majesty in the same manner and form but not otherwise as if such land had never been alienated from the Crown.
So for the purpose of its disposition, the legislation in the Victorian case speaks of the land which has been re-acquired as then being land which is to be dealt with as if it had ‑ ‑ ‑
GUMMOW J: No, no, “in the same manner” it says, does it not?
MR CASTAN: “in the same manner and form but not otherwise as if such land had never been alienated from the Crown” and in fact, of course, the circumstance of the land we are talking about, the 112 items of land, is that they were not further sold or alienated; they were dedicated as State forest in due course.
GLEESON CJ: Mr Castan, this agreement between counsel that you mentioned, provides for the case to finish when?
MR CASTAN: It was today; it was designed to provide for a conclusion today.
GLEESON CJ: I ask that because I am going to be asked at lunchtime about a time to be fixed for the next time. Thank you.
MR CASTAN: Yes, I think that is excessively optimistic myself, but ‑ ‑ ‑
GLEESON CJ: What if we were to say not before 11.15 am for the next case, would that be reasonable?
MR CASTAN: I think my learned friends on the other side might need that. I have some further matters that I wanted to put and perhaps fifteen minutes- - -
GLEESON CJ: Would you like to think about it at lunchtime and let us know at 2.15 pm and we can fix the time for the next case accordingly.
MR PAULING: Your Honours, before rising, may I hand up some brief submissions I have prepared in respect of Mr Basten’s jurisdictional argument. They have been circulated. They were directed, among other things, to the notice of motion, but also jurisdiction and it may be helpful to read it ‑ ‑ ‑
GLEESON CJ: Thank you.
MR PAULING: Your Honour, perhaps I could talk among those here immediately after the Court rises and perhaps ask the Court crier to ‑ ‑ ‑
GLEESON CJ: Yes, we just need the information for the convenience of other parties in the list.
MR PAULING: Thank you, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Mr Solicitor, we received your message at lunchtime. We would hope that counsel would be able to reach an equitable agreement between themselves about dividing up the time between now and 11.30 am in the morning, but if you cannot we will engage in some alternative dispute resolution.
MR PAULING: It will not be necessary, your Honour.
GLEESON CJ: Very well. Yes, Mr Castan.
MR CASTAN: If your Honours please. I have been berated, your Honours, for getting the facts or numbers slightly wrong before the luncheon adjournment. I am informed that the numbers of historical ghost freeholds in the Yorta Yorta case are, to be precise, 65 in Victoria and 112 in New South Wales. I gave some different numbers.
GUMMOW J: Where does this expression “ghost freehold” come from? Should it not be sent back where it came?
MR CASTAN: Well, I am happy to - the term “historic freehold” is used, I think, in the materials. It probably emerged because of the concept of continuing effect over land. The reason that I was seeking to outline briefly something of what the Yorta Yorta case is about and the stage it had reached is to indicate to your Honours that, in our respectful submission, the present case is both not ripe for resolution by this Court and, in any event, for the reasons that my learned friend, Mr Basten, advanced, the Court should not entertain the substantive issue.
On the question of the appropriateness of the Court dealing with it in terms of deciding the substantive issue, leaving aside jurisdiction, in our respectful submission, the Court’s long‑standing practice of deciding issues only when they come forward in a form which is the subject of proper findings of fact or, alternatively, on a question reserved with agreed facts and then stating a question of law is the appropriate course.
HAYNE J: How do we apply that in this case, Mr Castan?
MR CASTAN: In this case the Court would take the view that deciding this sort of a question with its undoubtedly wide‑ranging effects and the vast range of cases that it will affect that are in the pipeline in one form or another it would be inappropriate, given that it has not gone through the procedures that other cases such as the ones in respect of the parties for whom ‑ ‑ ‑
GAUDRON J: The trial judge has made a finding. We have either got to say he is right or wrong. Where he has ruled on the matter, it is either got to be said to be - somebody has got to say he is right or wrong.
MR CASTAN: With the greatest of respect, your Honour, this matter was removed by ‑ ‑ ‑
GAUDRON J: Yes, but it is the appellant’s ground of appeal that has been removed. It was their appeal. It was their application at first instance. The trial judge at first instance ruled upon it. Somebody has got to say whether he is right or wrong. It is simple as that.
MR CASTAN: Ordinarily the appeal would have gone through the ordinary processes of the Full Court of the Federal Court. This Court removed it ‑ ‑ ‑
GAUDRON J: And it would not have found any facts, Mr Castan.
MR CASTAN: No, and it would have been dealing with it in the same unsatisfactory way and, if the matter had then come forward for special leave, it would have been appropriate for the Court to take into account that it was not a case suitable for special leave, given the way in which it had come to the Full Court of the Federal Court. Now, it is our respectful submission that it is such a case.
GAUDRON J: So that a native title applicant can conceal information from the tribunal, make an application to the courts and then turn around, either by its counsel or by friendly counsel, and say, “And there is not a thing the courts can do about.” It is not a very appealing submission.
MR CASTAN: With the greatest of respect to your Honour, it is not a matter where there has been any concealment. As I understood my learned friend, it was indicated that they did not know.
GUMMOW J: No, but they knew by the time it was being decided by Mr Justice O’Loughlin.
MR CASTAN: And at that point the matter should not have been decided for the reasons that my learned friend ‑ ‑ ‑
GUMMOW J: And there was no suggestion that the then subsisting native title claim would be amended.
MR CASTAN: Well, as I have only just - I, of course, cannot speak as to ‑ ‑ ‑
GUMMOW J: Exactly, and you are really intruding into someone else’s patch, it seems to me.
KIRBY J: Can I just ask you, going back to your own patch, one might think perhaps that it would be actually helpful to the trial judge who stands reserved in your case to have the fundamental question determined for him or her.
MR CASTAN: It would be if the Court was - but, of course it would be and so for many other cases that are in the pipeline, ultimately for this Court to decide those issues. The submission I was putting is that the particular case is not the appropriate one, that it is not right for determination because your Honours do not have the facts. Your Honours have no facts about the native title and its incidence or the nature of it or its history or its operation in relation to this land and that, in our respectful submission, is critical.
GAUDRON J: Nor did we have it in Wik.
MR CASTAN: And there were difficulties, if I may say so with respect, which some of the members of the Court commented on for precisely that reason and, if I might say so, it could be said properly in relation to Wik that it was a case that came from the Federal Court as a question of wide‑ranging import without the determination of facts which had a number of unsatisfactory elements also for that very reason, as some of the members of the Court commented. In our respectful submission, this Court has had a longstanding practice of endeavouring to avoid doing precisely what did happen in Wik and what is effectively involved here, which is to take on a case where there have not been completed findings of fact or, alternatively, as can happen and frequently does happen, some agreed findings of fact which then form a basis on which the Court can, in a coherent way, go forward and it is a ‑ ‑ ‑
HAYNE J: Does this identify the fundamental point which you seek to make which is a point dependent upon the use of the land as opposed to rights to use the land and is that not a key to the submissions that you make?
MR CASTAN: It is not merely the use of the land. It is a question of what is the state of affairs when the rights to the land have ceased to be rights which are inconsistent, so that it is rights that we are talking about, not use, but we are talking about a point of time at which there is no longer the inconsistency that is said to lie at the heart of the doctrine of extinguishment. It has gone. The inconsistency which is at the heart of the problem, as it is said, has vanished at the point at which we are looking at the land.
HAYNE J: And at that point, you say, if the use in fact continues, the right which hitherto has, to use a Dixonian term, not been operative in the intervening time, springs forth?
MR CASTAN: No, your Honour, with the greatest of respect. Those rights have continued as unenforceable rights. Those rights exist within that community. The assumption is that they have continued to have their relationship with land and, as between themselves, they have had rights and duties and obligations and commitments and spiritual connection and the whole range of connection with land. The assumption is that that continues. They do have rights. They are rights which are unenforceable in Australian law.
They have rights as some people have rights under canon law in Australia which are not enforceable in the civil law and others have rights under Talmudic law or Greek Orthodox law and people exercise rights and they regulate their behaviour as between themselves in accordance with those rights and they then in some situations, most situations in those sorts of examples I have given, find that if they cannot resolve those matters internally, they get no assistance from the law because the law does not operate to give those rights effect in Australian common law or statute law.
Here we have a situation where there is effect given to a set of rights which preceded the existence of the common law and the statute law. They were in existence. The assumption is that these people had rights, duties, obligations and relationship with land going back well beyond 1788 and that those relationships and commitments and obligations continued. The question that emerged ultimately was, what is the point at which those rights will either be given effect, if at all, and at what point do they cease to be given effect in Australian law, in the common law and statute law of Australia.
KIRBY J: In your case is the issue, which one might call the central issue in this matter, going to be posed or has been posed to the judge of the Federal Court and is he required to decide it; that is to say the question of the effect of the grant of fee simple?
MR CASTAN: Inter alia, yes.
KIRBY J: So that if one were, as it were, expecting that ultimately that issue will come to this Court, that question will be determined by that judge and either will go through the Full Court of the Federal Court or could be removed into this Court after that?
MR CASTAN: Precisely, your Honour. Yes, your Honour, and it is not the only case. There is another case before his Honour Mr Justice Lee that my learned friends will be referring to in Western Australia.
KIRBY J: Who is the judge in your case?
MR CASTAN: Justice Olney, your Honour.
KIRBY J: And how long has it stood reserved in your case?
MR CASTAN: Two months now, a month and a half approximately, and the other case I am not sure of the timing. No doubt my friends will be able to inform your Honour - and I think also reserved by his Honour Justice Lee in the Federal Court.
KIRBY J: And would that be with the benefit of factual findings relating to the particular land claims?
MR CASTAN: Yes, your Honour.
KIRBY J: And without the procedural complications of cases having been received into the tribunal and then removed?
MR CASTAN: Yes, your Honour. It has gone through what we would call the routine process, if I might term it that, lengthy trial involving numerous witnesses, dozens of witnesses of the Yorta Yorta people, lengthy hearings and, of course, then lengthy submissions on the law, all aspects of the law, including, among many other issues, the issue that is now before this Court. We would respectfully submit that the issue, of course, is an important one, but it is not in a relevant sense an urgent one, in the sense that there are other cases coming up.
It is not as though, as sometimes is the case, a very important issue comes up and the case before the Court is the only one that would provide the answer to a pressing question, nor is it a question which is a matter of which the Parliament is unaware because, of course, the Parliament has an amending Bill and it is dealing with that.
GUMMOW J: How do we get into this, Mr Castan, really?
MR CASTAN: We can only get into it in this way, your Honour. The Court would never shrink from dealing with a matter that is before it, for the reasons that I have been submitting, but this is a case in which - it is not a matter of the Court shrinking from a matter that has come before it routinely. This is a case in which the Court, so to speak, itself ‑ ‑ ‑
GAUDRON J: You, as an intervener, are seeking to have the removal set aside, are you?
MR CASTAN: Support the application that has been made.
GAUDRON J: Well, we have not got that application before us. That has been dealt with and it was dealt with last week, Mr Castan.
MR CASTAN: I perhaps misunderstood the nature of the further application that was put on this morning.
KIRBY J: I thought it was made clear when Mr Basten came last week that he could renew the application before this Court as now constituted.
GAUDRON J: But he has not done it.
MR CASTAN: I had understood that and read the transcript and perhaps misunderstood what has occurred this morning.
GUMMOW J: Are you going to get to the merits of this, Mr Castan?
MR CASTAN: Can I go on to another aspect? I would seek, before going to other issues, to touch on something that was put to my learned friend this morning relating to the operation of the Waanyi decision because there were numerous questions asked about equitable relief and the operation of injunctions. In our respectful submission, once Waanyi was decided and the rights conferred by an accepted and registered claim were established by this Court, for this Court to permit State executives, the Crown in right of a State or a Territory, to bypass what this Court in Waanyi said must happen, which is that the processes of the Act and the status quo provisions of the Act must be observed, is to permit, in our respectful submission, the executive to ignore a decision of this Court.
What is occurring here is that the executives can say, “Well, instead of going through the process that Waanyi told us we have to go through, which preserves the status quo, we do not have to go to the Native Title Tribunal or the Native Title Act. We can ignore the federal Act. We can ignore section 109 and federal supremacy and we can ignore the High Court. All we do is we just issue the titles. It is the other side then who will have to do something about it. Yes, they have this status quo preservation that the High Court said they can have in Waanyi” ‑ ‑ ‑
GAUDRON J: Well, the applicants in this case wanted something in addition to that. They wanted an injunction. They came to the courts and asked for it.
MR CASTAN: They do seek an injunction. The question I would pose rhetorically to this Court is, what are applicants to do who find that the decision in Waanyi is being ignored, this Court is being ignored and the federal legislation is being ignored by State Crown ‑ ‑ ‑
GAUDRON J: Well, it is a view of Waanyi that goes a little bit beyond its ratio decidendi, I should have thought.
MR CASTAN: In our respectful submission, it does not. What is, in effect, happening here is that the State Crowns are being told, “Well, you do not have to worry about that status quo. You can avoid that by just issuing titles and the parties who have got status quo rights,” valuable rights, as they were called by this Court in Waanyi, “they will be snookered. They will not be able to move because, if they go for an injunction, you will simply say they have not got the rights” ‑ ‑ ‑
GAUDRON J: And if they have got native title, anything that has been done will have been invalid.
MR CASTAN: Yes, your Honour, and in the meantime steps will be taken which will demolish the possibility of them having their native title because the land will be changed in some way. That is not what Waanyi held, with the greatest of respect to your Honour. It referred to preservation of the status quo and that is what the Commonwealth Parliament has said must happen and, in effect, this Court, if it now permits this course of action, is saying, “Well, it did say that but you can find another way around the backdoor. You can just issue the titles.” If they then seek to protect the status quo, their statutory rights that they have got, they do something about that, you will find yourself confronted with the very question that in Waanyi the Court said should not be decided except by this proper procedure and, in our respectful submission, this Court should not countenance that.
Can I then go to a matter that is contained in our written submissions at page 13. It relates to the concept of the plenum dominium and the notion that there is the theory that the grant of an interest in land by the Crown causes the enlargement of its radical title, the plenum dominium or a full and beneficial title. Our submission on this is contained from paragraph 43 onwards to the end of our submissions and it is a simple one. It is that this matter has already been decided by majority of the Court in the Wik Case and I can give your Honours the reference without taking your Honours to the passages.
KIRBY J: What matter has been decided?
MR CASTAN: I am sorry, your Honour. I have perhaps abbreviated too much. One of the issues that was raised, has been raised, in relation to the question of extinguishment is whether an exercise by the Crown under lands legislation of making a grant, whether it be a fee simple grant or a leasehold grant, but the very exercise by the Crown of conferring an interest in land somehow converts the Crown’s interest in the land from a radical estate to a plenum dominion, to somehow a reversion or a total ownership concept, that somehow the very act of exercising rights conferred by statute on the executive under relevant land legislation itself changes the nature of the Crown’s interest from radical title to something more and that by reason of that conversion, that process, the very exercise of a grant, regardless of the nature of the grant, that in itself extinguishes native title because the Crown’s interest at that moment blossoms into full ownership rather than radical title encumbered by a native title.
This notion, of course, would mean that one would not necessarily need to look to inconsistency as a basis for determining whether or not native title has been extinguished, rather, the mere exercise of the Crown’s powers under relevant lands legislation has the effect of extinguishing native title because the Crown’s interest then blossoms into full ownership. Now, that was referred to by his Honour Justice Brennan in Mabo at, I think, it was 82. I will get the reference.
GUMMOW J: Was it not page 68?
MR CASTAN: Page 68, and it has been picked up by some members of the Court subsequently.
GUMMOW J: It may have been picked up, but it is certainly not the foundation for the majority judgment in Wik.
MR CASTAN: No, and all I wanted to say about it was that our submission is that in so far as that is sought to be relied upon, that notion is sought to be relied upon, as a basis for extinguishment, whether in the grant of a fee simple or anything else, it is a notion which has been rejected, we would respectfully submit, by a majority in the judgments in Wik and I will give your Honours the references. In the Wik Case 187 CLR 1, and his Honour Justice Toohey deals with the matter at pages 127 to 129 and perhaps I should take your Honours to page 126 at about point 6 where his Honour says in the second‑last paragraph:
While the appellants accepted, as they were bound to do in light of Mabo [No 2] and the Native Title Act Case, that native title may be extinguished, there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished.
GLEESON CJ: And what is the answer to that question?
MR CASTAN: The answer we would give is the answer that my learned friend, Mr Basten, has given, that is to say that the capacity of the rights and interests of people under their traditional laws and customs in relation to land, which were capable of enforcement once the common law came to operate in Australia, ceased to be capable of enforcement and that that means they were extinguished. The question of whether they are then again capable of enforcement again at some later point of time would depend on two matters: one is whether or not they continue to exist as between the group themselves as traditional rights and interests which still exist in that community and, secondly, whether there is any inconsistency at the point of time at which the question arises. Now, going on in relation to the question of radical title and the plenum dominium, at page 128 at the top of the page at point 1 the paragraph commences:
That the radical title lies with the Crown immediately before the grant of a pastoral lease is clear. But how relevant is it to speak of the Crown acquiring the “reversion” in such a case and of the Crown’s title becoming a plenum dominium?
That is where his Honour picks up that notion of his Honour Justice Brennan. He goes on and after the quote from Blackstone says:
The doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the “title” of the Crown itself.
And at the bottom of the page, the last paragraph:
To speak, in relation to the Crown, of a reversion expectant on the expiry of the term of a lease as expanding the Crown’s radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. To say this in no way detracts from the doctrine of sovereignty; the Crown may thereafter deal with the land as is authorised by statute, disposing of it in some way or appropriating it to its own use.
And so on, and to the top of page 129 in the second line:
The invocation of reversion and plenum dominium, as those expressions are usually understood, does not lie easily with the position of the Crown under the relevant statutes.
And at the third‑last sentence in the following paragraph:
Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease? There is a curious paradox involved in the proposition.
Now, his Honour is rejecting the whole notion and is saying, we would submit, that these are matters of statute under a statutory system for the grant of interests in land and the notion of plenum dominium does not assist. The other passages to which I briefly take your Honours, at page 156, the judgment of your Honour Justice Gaudron, and at point 2 on the page:
In the event of forfeiture or early determination, the clear effect of s 135 was to assimilate the land involved to land which had not been alienated, reserved or dedicated for public purposes and which, therefore, was “Crown land” as defined in s 4 of the Act. In other words, the effect of s 135 was, in that event, to assimilate the previously alienated land to land in respect of which the Crown had radical title, and not to land in respect of which it had beneficial ownership.
GAUDRON J: I was dealing with a specific statutory provision.
MR CASTAN: Yes, your Honour, and there will be a variety of statutory provisions in each of the States and Territories and one finds varieties as one found with the Victorian one to which I referred ‑ ‑ ‑
GAUDRON J: Well, we have not been directed to any one applying for this land and nor was the trial judge.
MR CASTAN: No, your Honour. All I am seeking to illustrate is the system is a statutory system and it will depend on the terms of the statute, but some generalised notion that by reason of a grant - the proposition, as we understand it being put against us, is, in effect, the very fact of the grant itself somehow operates to create this different interest in the Crown.
Your Honour Justice Gummow dealt with the matter at page 186 to 190, and in particular at page 189, and there is a discussion of the history and the way in which the feudal system subsided and then engaged in a great revival in the 17th and 18th century at the foot of page 186 to 187 and ultimately your Honour Justice Gummow, in effect, said the system depended upon the statutory regime operating. Your Honour Justice Kirby at page 243 to 4 - and I will not take your Honours to the details of it - expressed the same view and that, in our counting, with the greatest of respect, constitutes a majority which deals with the issue.
Can I deal briefly with the concept of exclusive possession merely to say that while much has been made of the concept of exclusive possession in this arena, and it has been taken as the touchstone or the basis on which extinguishment should be determined, it is readily apparent that a fee simple does not necessarily carry exclusive possession. It is, of course, the largest interest capable of being granted, but the very existence of the whole framework of the common law interests such as easements, profits a prendre and the like, apart from the customs of the kind that my learned friend, Mr Basten, referred to, indicates that there is not such a thing as exclusive possession in the sense of the capacity to exclude all others, or there may not be. Most titles, vast numbers of titles issued, Torrens titles, contain an easement for water or whatever and easements of way are common enough in Australia as well as ‑ ‑ ‑
GAUDRON J: Do they not depend on grant?
MR CASTAN: They depend on grant or prescription. They depend on the doctrine of lost grant, but they exist. The point is not so much their source. The point is that the rights of a fee simple owner can exist and can co‑exist with the rights of the owner of a dominant tenement who may have rights to pass over one’s land. The rights of the servient tenement owner, the fee simple owner, of course, include complete and unfettered use of the whole of his or her land, including the area of the easement, but not so as to impede passage along the easement, if it be an easement of way.
So co‑existence as a notion is not some foreign notion that was suddenly imported into the law in Mabo or perhaps in Wik. I mean, co‑existence has been of the essence of the common law doctrines of the States and tenures in land since the most ancient of English doctrines going back to, I think it is the time of Richard II, 1189, I think, that all grants are deemed to date back to.
The other matter that I wanted to briefly mention, it is a notion that has a difficulty with it, is the notion of inconsistency and inconsistency as a notion, which, again, has been a touchstone in this arena, is an arena in which there has been no difficulty at all in dealing with inconsistent rights in land prior to the questions of native title being dealt with. It has only been seen to have difficulties once native title has arisen. My learned friend, Mr Basten, mentioned the mining legislation. The reality is that in Australia for 100 years or more there has been an enormous amount of activity in the mining industry across freehold land, leasehold land or any other kind of land. Interests are granted under mining legislation which permit, in effect, an intrusion into a freehold owner’s land and the exercise of rights inconsistent with the freeholder’s rights.
KIRBY J: But that has nothing to do with the title, the quality of the title, or what comes with the title. That is simply a burden upon the title by reason of extraneous legislation.
MR CASTAN: Precisely, but the rights are inconsistent. In theory the holder of an exploration permit over a vast area of outback Australia has a theoretical right to explore over every square metre of the land, so in theory his rights are inconsistent with the whole of the rights over all of the property of the freeholder or a leaseholder or whatever, in theory. Of course, he comes in practice to then operate and he runs his seismic survey line down a particular track over perhaps many hundreds of kilometres, but that has the effect of, in fact, intruding on the rights and so his potentiality for intruding on the rights extends across the totality of the freeholder’s interest in the whole of his land.
The practicality of his exercise of those rights is limited to such actual exploration activity as he needs to within the framework of the permit. To that extent the freeholder’s rights, inconsistent with the exploration right, the miner’s rights, must yield.
GLEESON CJ: Are you putting an argument to the effect that the re‑acquisition is immaterial?
MR CASTAN: No, I am putting an argument that these notions that are taken as the touchstone in this area have been oversimplified in the discussion that has been undertaken by the Court so far and it has been assumed ‑ ‑ ‑
GLEESON CJ: Yet the logical consequence of the argument that you are just putting seems to be that the grant of freehold title does not extinguish native title.
MR CASTAN: We say that there is a subsidiary argument that can be put to that effect or an alternative argument.
GLEESON CJ: Is that put?
MR CASTAN: It is put by us as an alternative. Our primary argument is that freehold extinguishes native title in the sense that we have endeavoured to convey, but that does not deal with the question of what happens when that freehold has expired or been yielded to the Crown or no longer exists and the land has become, in effect, in substance under the statutory scheme under which it was granted again Crown land or State forest or whatever the case may be. But the proper test then is to deal with that land as one deals with all other Crown land. There is no difference.
KIRBY J: Such of the judges as I have seen in Canada say the notion that native title can survive the grant of a fee simple as absurd.
MR CASTAN: Some have said it is absurd. Other judges have said that it is - have so held in the Supreme Court of British Columbia. In the Delgamuukw Case it was so held and referred to in the Supreme Court of Canada without disapproval. I do not know that it has been determined in Canada, but all we put as - we seek to ‑ ‑ ‑
KIRBY J: Did the issue not have to be decided on appeal in that case in the Supreme Court of Canada?
MR CASTAN: No, it did not.
CALLINAN J: Mr Castan, if the Commonwealth, then, were to reacquire or acquire property that was freehold property, then you are really saying that it could not acquire a complete title - that is to say, a title that might not be burdened with a native title - unless it paid compensation on just terms to native title holders.
MR CASTAN: Yes. Or, alternatively, if it reacquires land that has been the subject of a fee simple grant, at that point, at the point of reacquiring, there is the potentiality of native title existing, if that traditional connection has been maintained. If it then seeks, for whatever reason, to extinguish that native title at that point at which it is again capable of recognition and operation, it, of course, acquires it.
CALLINAN J: It would have to seek out the persons who might be entitled to some vestige - or native title and pay them compensation.
MR CASTAN: It would do no different than it might do with neighbouring land that was never the subject of a fee simple. All we say is that the land, when so reacquired by the Crown, simply goes back to being as it would be had there not been a fee simple. There is nothing different about that than the rest of the land.
GUMMOW J: Well, what happens to the fee simple? It is extinguished, is it?
MR CASTAN: Yes, your Honour.
GUMMOW J: There is no reacquisition of anything, it is just extinguished.
MR CASTAN: Yes, that is correct, your Honour. Now, there is some land, of course, that the Crown takes unto itself in the true ‑ ‑ ‑
GAUDRON J: It raises an interesting view as to whether compensation is payable.
MR CASTAN: There is land, of course, which the Crown takes unto itself in the fullest sense of not just retrieving the land so that it becomes Crown forest or other Crown land; there is land that the Crown might resume for the purpose of building a building on it, in which case it is obviously dedicating that land to itself, as if it had taken some of its Crown lands and dedicated it to a Commonwealth purpose. But all we say is, there is nothing dramatic about this. All we say is, it is in no different position than any other Crown lands.
CALLINAN J: What about the States, if they acquire ‑ ‑ ‑
MR CASTAN: The same.
CALLINAN J: ‑ ‑ ‑ land, and then they are not obliged, of course, to pay just terms except by statute. What do they do under their various Acquisition of Lands Acts in relation to indigenous people who might claim some vestige or native title?
MR CASTAN: Well, if the land becomes susceptible of the continuity, if there is still the continuity of connection - - -
CALLINAN J: Assuming that.
MR CASTAN: Assuming that, then it is dealt with as if the land had always been Crown land. All we say is that the intervention of the fee simple estate is not the touchstone for the determination of the question of the existence of the native title rights and compensation, if it be determined to extinguish those. That is not the criterion. The criterion is the state of the land at the time when one looks to the question, not the intervention of the intervening estate that has expired or been terminated.
KIRBY J: In your preparation in the case before Justice Olney, or this case, did you come across any academic writing which supports the proposition you are advancing, that the grant of fee simple does not, of itself, extinguish native title, either in this country or Canada?
MR CASTAN: Yes, there are writings certainly of - - -
McHUGH J: McNeil.
MR CASTAN: - - - Dr Kent McNeil in the Australian Indigenous Law Review, which - I will have to provide the reference to your Honours. Beyond that, I do not have ready access to them. we can provide your Honours with - and there are such writings, I just do not have them readily accessible and we will certain provide them.
GLEESON CJ: If you could let us have them first thing tomorrow.
MR CASTAN: We will do that, your Honour.
GLEESON CJ: Thank you, Mr Castan.
CALLINAN J: Mr Castan, just before you sit down, that means that really there is potential reversionary interest, subject to continuing connection with the land, over every square centimetre of Australia.
MR CASTAN: Well, when one says a potential reversionary interest, it is not so much there is a potential reversionary interest. If the traditional connection exists - - -
CALLINAN J: Assuming connection.
MR CASTAN: - - - then, if there is no inconsistency, it is recognised and can operate. It is that simple. Now, if one calls that a reversion - one could call it a reversion. We do not use the term “reversion” because we would respectfully submit all we are talking about is a continuity of connection that predates the introduction of the common law, predates the introduction of ‑ ‑ ‑
CALLINAN J: But suspended during the course of any exclusive possession.
MR CASTAN: No, its enforceability is terminated. Those rights and interests, on the assumptions we make of the continuing connection, exist and continue. The only question we are just really debating is at what point can they become enforceable again? And we do not adopt the language of reversion, we simply say there was a continuing connection on the assumption in a given situation, if it be there. In many situations, of course, the nature of the fee simple and the nature of the use made of land means that the tide of history, as his Honour Justice Brennan said, has washed away that connection in the vast majority of cases in the eastern seaboard.
But if the connection exists, and if those rights and duties still operate, unenforceable, incapable of recognition by the common law because of the inconsistency, because of a grant, then at the point at which there is no longer than inconsistency, the common law recognises them.
GLEESON CJ: Thank you, Mr Castan.
MR PAULING: Would your Honours impose some time limit in respect of the remaining two interveners on the other side, and the reason being that our time is being seriously eroded. There was three times predicted.
GLEESON CJ: Yes. Mr Bartlett and Mr McIntyre, five minutes each sounds reasonable.
MR BARTLETT: I might find that somewhat difficult, your Honour.
GLEESON CJ: Yes, but that is because Mr Castan, who, according to a message we got at lunch time, acquired another 15 minutes, add to 15, who has just completed.
MR BARTLETT: I understand that, your Honours. May it please the Court, there are two sets of written submissions before you from the Miriuwong and Gajerrong people; one supporting an affirmative answer to the ground removed, and a brief addendum to those submissions, and what I would wish to do in my brief submissions is to point out the structure of those submissions, if I may.
May it please the Court, we regard this as fundamentally an expropriation case, and what we are concerned with is universal principles of the common law with respect to the protection of property from expropriation undertaken arbitrarily and without compensation. The entire structure of our argument is directed towards the application of those principles, which we suggest place a heavy burden upon a party asserting such expropriation and, also, require an examination of the circumstances surrounding the expropriation, or extinguishment as it is also called, with respect to native title.
If I can turn to those written submissions, our second submission, which is set out on page 1 of our main submissions, stresses where this notion of universal principles of the common law comes from with respect to native title. We submit that the recognition of native title, and the protection of native title, is fundamentally driven by our rationale of equality, and we cite authority from Mabo [No 2], from the Privy Council, which was relied upon in Mabo [No 2], from New Zealand, with respect to the R v Symonds and, over the page, on page 2, of course, from the Wik Peoples decision. And rather than turn to the particular case, if I may, your Honour, there is there the quotation from his Honour Justice Kirby which sets out the notion that:
Once that step was taken, ordinary common law principles for the protection of a proprietary right.....extended to the protection of the indigenous peoples of Australia, in exactly the same way as the law would protect other Australians.
That is the fundamental rationale is equality. And moving on from there to our third submission, we submit that that rationale demands a clear and plain legislative intention, and we distinguish that from a mere intention derived from the executive. We demand that there be a clear and plain legislative intention, that being consistent with the principle of equality as applied to the circumstances of expropriation.
We submit, on page 3, that there is there reference to the classic authority, Central Control Board (Liquor Traffic) v Canon Brewery and Commonwealth v Hazeldell, which was cited in Mabo [No 1] and Mabo [No 2], and find reference in the Wik decision, itself.
KIRBY J: This all assumes that the native title survives the grant of fee simple. If it does not, then these points do not touch it because there is no equality to be applied to something which has disappeared.
MR BARTLETT: The principle of equality applies to determining the manner in which one determines that extinguishment or expropriation took place, your Honour. So, it is at the point of extinguishment or expropriation with which we are concerned. That is where the rationale of equality demands these principles for the protection of the proprietary interest, namely, native title.
On page 4, under the heading 3.4, we set out the statements by the majority in the Wik decision which demand a clear and plain legislative intention, and I will not review them, they are there set out. There is also an addendum with respect to that principle in our submissions headed “Addendum”, which address the New Zealand authority in that regard, and we submit the New Zealand authority quite clearly supports that very same principle.
KIRBY J: Is that affected by the way in which New Zealand was acquired and a treaty was signed with its native people?
MR BARTLETT: We would submit no, your Honour, but the cases in question which were cited by intervening - the State of Victoria and the Commonwealth do address particular and peculiar legislation in New Zealand.
McHUGH J: Is not the thesis of your argument rejected by Justice Kirby in Wik at page 237, where he rejects the notion that extinguishment depends upon factual circumstances? He emphasises the question of title and, so, is not the real question whether an estate in fee simple either extinguishes or does not extinguish, and that it cannot depend upon particular factual situations? If you accept what Justice Kirby said.
MR BARTLETT: We would submit, your Honour - we address that proposition on pages 8 and, in particular, 9. We would suggest that relevant circumstances are historical documentation of intention. They must be, your Honour, circumstances that go to the legislative intention. We are not suggesting that it is a free‑for‑all with respect to an investigation of facts; they must be facts that go to legislative intention. But one of those facts is historical documentation of legislative intention. Another, we would submit, would be the nature of the terrain. Another would be the known presence of Aboriginal people upon the land. They all go to determining whether or not there is a clear and plain legislative intention to expropriate and, accordingly, that would be our response to that concern, or lack of concern, with factual circumstances, which does bring us to our fifth and sixth submissions, which address the question of how one determines whether or not a clear and plain legislative intention to extinguish and expropriate may be manifested, and I have already indicated some of those circumstances in that respect.
KIRBY J: Is your client’s case the one which is reserved before Justice Lee, or is that - - -
MR BARTLETT: It is, your Honour. It was reserved on 9 April.
KIRBY J: It will be all in the papers but, in two sentences, what is the issue in that case?
MR BARTLETT: All of the issues imaginable with respect to native title. Evidence was heard over 18 months, and they go to questions of proof and questions of extinguishment, with a wide variety of Crown dispositions and legislation affecting land use.
KIRBY J: And the question of the effect of the grant of fee simple is one of those questions.
MR BARTLETT: Is one of those questions, your Honour.
McHUGH J: Mr Bartlett, am I right in thinking your arguments go beyond those of Mr Castan?
MR BARTLETT: They are different from those submitted by Mr Castan.
McHUGH J: Well, perhaps if I can put it this way. On your argument, native title may exist at the present time, may it not, in respect of land held by private interests who hold an estate in fee simple?
MR BARTLETT: Only, we submit, in a somewhat exceptional circumstance, where the clear and plain legislative intention was not to extinguish and expropriate.
McHUGH J: Well, in cases, for example, that apply the various matters that you refer to in your argument; terrain, matters of that nature.
MR BARTLETT: But the other circumstances we really did not get to was the nature of the right granted by the Crown, which is also a very significant circumstance, as, also, is the nature of the native title right, itself. All of those are critical circumstances in determining whether or not there is a clear and plain legislative intention to expropriate. And we submit, fundamentally, that perhaps all that might survive in this particular grant are native title rights to fish and to hunt and to water, because of the nature of the common law, and the nature of the grant with respect to those interests that a fee simple grant contemplates.
Our eighth submission is, of course, consistent with what I have already indicated; that a grant in fee simple is not necessarily effective to extinguish and expropriate all native title rights and interests and, in that regard, we refer to United States authority, both in our submissions and, also, in the addendum which has been put before your Honours which relies, in particular, on the case of Missouri, Kansas and Texas Railway, which is relied upon, also, by the Commonwealth. We would submit it is a decision which is very much in our favour with respect to the conclusion that a fee simple grant does not always necessarily extinguish all native title rights and interests.
We would also like to refer to the New Zealand jurisprudence relied upon by several of the interveners against us. We would suggest those New Zealand authorities again do not support a proposition that a fee simple title always extinguishes and expropriates all aspects of native title. Those authorities are fundamentally concerned with the New Zealand legislation which substituted a freehold title for native title with the deliberate aim of
assimilating - to use the language of the courts - the native title under traditional law to British law. So, the principal object was an assimilation and a conversion from native title to freehold.
Bearing in mind the time limits, I would conclude at this point just by stressing we submit that not all incidents of native title are necessarily extinguished by a fee simple grant and, in particular, in this case, that a native title right to fish, to hunt, and to water have survived the grant in 1882. Thank you, your Honours.
GLEESON CJ: Thank you, Mr Bartlett. Yes, Mr McIntyre.
MR McINTYRE: Your Honours, Mr Castan’s length has allowed me to be a little shorter because he has covered some of the matters that are in these written submissions. The other thing I should inform your Honours is that these written submissions were put in substance to his Honour, Justice Lee, in the same case which Mr Bartlett appeared in, and in which I also appeared, so those substantive issues of law are in that case as well.
Can I, just as an aside, provide another response to his Honour Justice Kirby to a matter he raised with Mr Basten concerning the attitude of imperial authorities, not taking a great deal of notice of the local colonial authorities. Your Honour may recall that his Honour Justice Drummond, in the decision he made in the Wik Peoples Case, referred to the distinction between Western Australia and New South Wales that - - -
KIRBY J: I thought in Western Australia it was even more difficult; that the local legislatures became.....recalcitrant.
MR McINTYRE: No. In the detailed submissions I put to the Court in the Wik Case, Earl Grey was much more successful, at a slightly later time, in convincing the local authorities to include in their land legislation ‑ ‑ ‑
KIRBY J: I thought he was not successful in persuading. I thought it was insistence by the imperial authorities when Western Australia was a colony. I may be wrong.
MR McINTYRE: Yes. Well, the result was that in all of the land regulations of Western Australia, there is a reservation of a right, or an exception, within the pastoral leases, of the right of Aboriginal people to gain their subsistence or their sustenance from the land as an exception to what is granted in a pastoral lease. So, in that respect, Western Australia was slightly different historically from the eastern seaboard.
KIRBY J: I only made my comment because one often reads in popular journals that the British are blamed for what happened here, but the British were the most - always consistent, insisting that the native title, or the native rights, be protected. It was the settlers who did not want to do it.
MR McINTYRE: Earl Grey was particularly prominent in his insistence, as the historical documents show, your Honour. In relation to the submissions which I have put for the Noongar Land Council, and are adopted by the others, we, of course, adopt those submissions you have already heard and seek to add slightly to them.
We put the submission, your Honours, that, in fact, this Court in Wik really did not rely on the words “exclusive occupation” as providing any real analytical basis for dealing with the question of extinguishment. They were words which were often used but, when one analyses the judgments, as is sought to be done in the written submissions, one does not really find any real analysis of those words, themselves.
What one does find - and if you start at page 2 of our submissions, at paragraph 4, starting with his Honour Justice Toohey, he says:
The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others -
so, he introduces it by talking about exclusive possession -
including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in the grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all-important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. The second step has within it two elements. The first looks at inconsistency -
And I suggest that, really, the analysis of each member of the Court who looked at the matter really analysed the concept of inconsistency, and that is the real test and, in that sense, these submissions support those of Mr Castan, that, really, it is a question of inconsistency and unenforceability, as his Honour Justice Toohey says in the last four lines of that same quote. So that, that is the real analytical basis of the Wik judgments, and we suggest that that is the proper analytical basis to deal with this issue, and that the written submissions seek to draw together various dicta from the judgments and see how they were consistent, and I will leave your Honours to look at those and form your own views on them.
What we do, towards the end of the submissions, is to draw together what is suggested to be a summary of indicators of inconsistency, and they run (a) to (i) and, when one looks at them, they seem to be a little bit of a mixture of factual matters and rights. We accept the view that rights is what one primarily looks at when looking to intention and, so, you have things like the purpose of the grant, the power to take possession, and those are clearly matters relating to the rights granted. The size of the area of the grant seemed to be a matter which a number of judges in Wik adverted to. Now, we would suggest that that, perhaps, was used by the Court to look to the intent behind the rights granted.
The remoteness of settled and occupied areas. Again, that is undoubtedly a factual matter but again,perhaps, one which one looks to to look to the intent of the rights which were granted. The rest of them are - there is also the capacity for indigenous inhabitants to continue to occupy the land and the fact that they did so. Now, that seemed to be a matter which was on the minds of the court that made that decision in finding the intent of the legislature and the executive arm when they made those grants. Cancellation without default and lack of assignability, improvement in development conditions, derogations from grants, well, they are all part of the rights and interests which are granted. We leave those with you.
At paragraphs 42 to 44, we set out briefly the argument which Mr Castan has put about the question of unenforceability, and we suggest that various dicta have used, interchangeably, unenforceability, suspension and revival. But they are essentially the one concept, and we would adopt the submission of Mr Castan that unforceability is the better choice of those concepts when analysing the matter fully. We also draw attention to the analogy with section 109 of the Constitution, which Mr Basten has put to you and I do not say anything more about that.
KIRBY J: The alternative view is that it is a very fragile title which the common law of Australia recognises but that, once our modern title system intrudes, it is gone forever, and that is a simple doctrine that removes any uncertainty. It may, on one view, appear unfair, but it at least settles what every society, including primitive societies demand, namely, that land law be very clear.
MR McINTYRE: Yes. Well, we, in response to that, adopt the view which Mr Bartlett put that, really, if one is to accord a quality of those rights, then they are to be treated like ordinary property rights and no less fragile than any other and, therefore, you adopt appropriate consistent tests of inconsistency, rather than that sort of assumption which is implicit in what your Honour has just put to me.
In our affidavit supporting the applications, we draw attention to some facts which may provide grist to the mill for your Honours in analysing these matters. In the application by the Kimberley Land Council, there is the fact situation which your Honour Justice Gaudron referred to, or, at least if not directly, indirectly, of the military training base. There is, in that particular case of the Wororra claim, which is up in the West Kimberley, a large proportion of the area of land is an area which was the subject of an acquisition under the Commonwealth Lands Acquisition Act after the Racial Discrimination Act, followed, curiously, by a grant from the State to the Commonwealth of a freehold title after the Commonwealth had already acquired it, but for what reason one cannot quite discern.
GAUDRON J: The grant from the Commonwealth to the State of a freehold title.
MR McINTYRE: No, it was from the State to the Commonwealth, yes. The Commonwealth had acquired it, and then the Commonwealth, it would appear, approached the State and sought a freehold title. Although, I suppose, because it was within the State of Western Australia, they were the only Crown with the capacity to issue a freehold title. Why it was thought necessary to do that does not emerge from the papers. Both of those events occurred after 1975, so, arguably, are both subject to the Racial Discrimination Act and, therefore, both, arguably, are categories D under the Native Title Act, even though there is a freehold title. So, that may be a fact situation which may assist your Honours in analysing these sorts of issues. But each one turns on its own facts, regardless of whether it might be called a freehold title or not.
The other fact situation is in the affidavits in relation to the Noongar Land Council and Bropho and Warrell. Mr Warrell is an applicant for a piece of bushland - bush swamp land, which I understand is declared part of the Australian Heritage Estate, within the boundaries of the Perth airport; clearly undeveloped land. His case, when it gets to court, and it has not gone to trial yet, will be that he hunts for turtle in that area, so the question is, is his title fully extinguished where there has been no adverse activity in relation to the land? There is clearly a history of fee simple title, and that is set out in the annexure of the Commonwealth’s submissions in that case, as to the tenure history of that.
We would say that that is an example of the kind which Mr Castan is suggesting, where there is a continuity of the customs and traditions being exercised upon the land, albeit fee simple titles overlaying them. Crown to Crown grants are in the mix and, so, there are all those sorts of facts and circumstances which we say make the issue not simply the question: has a
fee simple title been granted? If it has, therefore, all native title ceases to exists.
McHUGH J: What about land held under the Torrens system? Is that in a special category?
MR McINTYRE: We would say it makes no difference. I mean, the purpose of the Torrens system, as we would suggest, was to register title for the purpose of proof, and the issue of the Torrens system - - -
GUMMOW J: No, it was title by registration.
HAYNE J: No, title by registration.
GUMMOW J: It is not registered title; title by registration.
MR McINTYRE: I accept the strong suggestions I get from both of your Honours. It creates indefeasibility. It does not make the fee simple any stronger or weaker, we would suggest. It is either a fee simple, or it is not. It certainly has a statutory base beyond the ordinary common law base of a fee simple title.
GLEESON CJ: If it be the case that a grant of freehold title extinguishes for all time native title, if that is the law, it would seem desirable that it be declared to be the law, rather than allow people to litigate, at enormous length, the facts and circumstances, the irrelevant facts and circumstances, of individual cases.
MR McINTYRE: That is undoubtedly true. All we would say is to adopt what Mr Castan has said, and others before me, that perhaps this is not the most appropriate vehicle and that there are others not far distant from this, two of which are indicated in the affidavits which we present.
GLEESON CJ: Thank you, Mr McIntyre. Yes, Mr Solicitor.
MR PAULING: May it please the Court, the words that “each one turns on its own facts” is an alarming proposition for the millions, perhaps, of allotments of land all over Australia that no one will ever know until the peculiar facts to which we have heard reference given in each case are sorted out in some sort of judicial proceedings.
Your Honours, this is not a case about extinguishing traditional laws and traditional customs, although, in hearing Mr Basten’s submissions, one might have thought that native title, on the one hand, and the traditional laws and traditional customs, seem to sometimes merge and become the same thing. So that, if at one level one finds traditional laws and customs proceeding unabated, as Mr Basten says in his submissions, even though the common law loses the ability to recognise it and enforce it during the pendency of an inconsistent grant, nonetheless - - -
GAUDRON J: I do not understand this expression “during the pendency of an inconsistent grant”. A grant is made, that is the end of the matter.
MR PAULING: Well, that is precisely our submission. I am trying to analyse what is put against us, your Honour.
GAUDRON J: I am sorry.
MR PAULING: I am not disagreeing with you. But, your Honours, what we say is that quite clearly this is a case about title. It is a case about whether what your Honour the Chief Justice clearly identified form the playing words of the definition of “native title” in section 223 of the Native Title Act. It is whether or not the rights and interests have been extinguished and, once they have, it is our submission - and we do not wish to elaborate on the written submissions - that “extinguished” must, for the reasons that the primary judge gave, mean extinguished forever.
KIRBY J: But it is a title that has got into a rather special statutory scheme - - -
MR PAULING: Yes, it has.
KIRBY J: - - - which this Court has said is a very important scheme for the protection of the interests of Aboriginal people, including some who may not ultimately be able to prove their native title.
MR PAULING: Yes, but a limited of range of matters, your Honour. This is where to talk - to extrapolate from Waanyi as though it involves some broad notions is quite wrong. The scheme of the Act that was analysed - and your Honours might recall that in Waanyi various of the interveners sought, as did Queensland, to put some argument as to the proper statutory context of the native title in this matter and were not given leave to argue those points. But the structure of the Act, for the purposes of protecting the valuable rights described in Waanyi, relies on looking at section 26(2) of the Act, and this is the right to negotiate scheme.
We do not come here and say that if it was the intention of the government of the Northern Territory, in respect of this land, to create a right to mine, that we could simply go ahead and do it. We could not. Section 26 would require us to notify the registered native title claimant and to undergo what is an extensive period of negotiation. Then notification is made under section 29. There needs, then, to be period of two months while one waits to see if anyone wants to come into the negotiations. A minimum of six months negotiations which, if not successful, then results in arbitration over a period - in the case of a miner, three months.
Now, in those circumstances, we are not saying that registered native title claimants do not have valuable rights, they do, and it is a right to be notified that the government intends to do that. Similarly, if - - -
KIRBY J: Did you do that in this case?
MR PAULING: No, because what is happening in this case does not fall within any of the provisions of section 26(2).
KIRBY J: But this was a registered claim under the Act, which the registrar recognised. So, it is in the scheme.
MR PAULING: Yes, but it is in the scheme so that if there was an intention on the government to compulsorily acquire native title rights and interests, or to do the things to do with mining that are set out here, we are under a statutory obligation to negotiate. But where the view properly taken, and clearly contemplated in the second reading speech, I might say, and I will take you to that, is that the government stands back and says, “There is no native title here. There is no native title for us to compulsorily acquire. There is no native title for us to give notice in respect of under section 29.”
KIRBY J: That is what the tribunal is going to decide.
MR PAULING: No, the tribunal is not going to decide that. The issue, the scheme, a right to negotiate scheme, as I say ‑ ‑ ‑
KIRBY J: Yes, but it is all as adjunct to a claim to native title which is, by this Act of the federal Parliament, to be determined not by the Government of the Northern Territory, not by the Federal Court, but by this tribunal.
MR PAULING: No, it is not. It is to be determined by the Federal Court unless it is unopposed.
KIRBY J: Yes, that is if it is referred.
MR PAULING: It has to be referred if there is no agreement.
KIRBY J: Was it referred in this case?
MR PAULING: It has not been yet.
KIRBY J: That is why the whole thing has jumped the gun. The procedures of the Act, which this Court said in Waanyi were valuable and important and to be protected, have been completely ‑ ‑ ‑
MR PAULING: Waanyi was a mining case. In Waanyi there was a clear statutory obligation to not only give notice but to engage in a right to negotiate procedure which was aimed at securing an agreed outcome. Where the government, on the other hand, is dealing with land in the ordinary course and issuing title and not for a moment intending to acquire native title compulsorily, because it is of the view that none can possibly exist as a consequence of the grant of the freehold title ‑ ‑ ‑
KIRBY J: But that means every time the Government of the Northern Territory conceives that native title does not exist, the whole panoply of this tribunal means nothing.
MR PAULING: No, it does not.
KIRBY J: Although you are in it, although you have got your claim registered, although the registrar has accepted it, although negotiation rights are valuable, it means nothing.
MR PAULING: No. Could I take your Honour to section 26 because in relation to mining - the creation of a right to mine, having given the requisite notice, if any person comes forward and says, “I claim to have native title in respect of that area” then one is locked in to the right to negotiate process. There is your valuable right. So that is it in relation to mining and that is also it in relation to the compulsory acquisition of native title rights and interests.
HAYNE J: Do I understand you to say, Mr Solicitor, that Subdivision B has no application in this case?
MR PAULING: Absolutely, just as much as to say that if there is no native title this Act has got no work to do at all. His Honour the primary judge, ‑ ‑ ‑
KIRBY J: So that instead of the hard won scheme that was negotiated and then put through the federal.....to debate it for months whereby a particular national tribunal would be established to sort these things out and the hard won claim to negotiate - the camel walks right through the Act just because you say it does not exist at the threshold. You attack it at the threshold.
MR PAULING: No, your Honour. Your Honour, if native title does not exist, this Act has got no work to do.
KIRBY J: But that is the very thing - this is a catch‑22 situation. That is the very thing that has to be determined in the tribunal. You cannot walk out of the tribunal just because you say it does not exist. That is what a tribunal has been set up by the federal Parliament to do.
MR PAULING: I am saying, your Honour, that no government can walk out of a procedure if, in order to confer title on somebody else that is valid, it needs to compulsorily acquire native title rights and interests. There is only one way to do it and that is under section 26 and Subdivision B and engaging in the right to negotiate.
KIRBY J: So your concession that native title exists is a pre‑condition to the whole scheme of this Act?
MR PAULING: No, it is an assessment as to whether or not in a particular case where, for example, it is intended to confer title rights on a third party, it is an assessment as to whether or not it is safe for government to proceed to grant that title without going through the right to negotiate process because it is not conceivable that native title might exist.
KIRBY J: It is not used in this country for the rights of people, including as to title, even native title, for that to be completely circumvented by the decision of a government.
MR PAULING: It is not completely circumvented because if the government is wrong and the party proceeds to establish that native title, in fact, exists, then the conferral of rights on the third party will be invalid.
KIRBY J: Yes, but ‑ ‑ ‑
MR PAULING: I mean, this very case is an example where Oilnet were invited, as it were, by the appellants to “Do not worry, go ahead and spend another $3 million but on the basis that if you are wrong, if there is native title, well that will have to come into compensation.”
KIRBY J: What sort of a scheme is that? Millions will be spent, buildings will be built, bridges will be built, roads - I mean, that is an absurd postulation.
MR PAULING: Well, it is. Let me just say this ‑ ‑ ‑
HAYNE J: Assumedly, Mr Solicitor, it is why we are here, in the context of litigation that was brought in the Federal Court to test the point.
MR PAULING: Yes, what I wanted to say was that governments have got to be free to govern. Can I just - in the brown book, the Native Title Act, at the back it has got the Hansard second reading speech, talking about future regime - it is in the right‑hand column page 2880 last paragraph:
Where native title has not yet been determined, governments will be able to ascertain whether there is a credible native title interest in land over which they wish to make a grant.
What I am saying to your Honour Justice Kirby is that let us assume what was intended was a multi‑million dollar development. A government might well sit back, as governments have to do, and assess whether or not on proper advice it is credible that there might be native title in respect of that land. If they decide it is not credible ‑ ‑ ‑
KIRBY J: So it is in the gift of government, not in the gift of the law.
MR PAULING: Because, your Honour, as suggested by Mr McIntyre, one had to wait in turn. Each one turns on its own fact so each block of land piece by piece across Australia has to be put right through the processes of the Act and presumably, the appellate levels of the judicial system, the whole business of government grinds to a halt. You have got to eventually take decisions.
HAYNE J: Mr Solicitor, if it had been held below that the claim was an arguable claim, the business of government might well have had to grind to a halt.
MR PAULING: Yes.
HAYNE J: Putting it in terms of when a government’s business does or does not grind to a halt seems not to the point, if I might say so. What is to the point is whether the claim is arguable. If it is arguable, then judicial relief will go.
MR PAULING: Yes.
HAYNE J: If it is not arguable, perhaps it may not, but it is not a question of whether the business of government grinds to a halt.
MR PAULING: I appreciate that.
KIRBY J: Just adding to that, is it not arguable and argued before the tribunal which the federal Parliament has established?
MR PAULING: No, it is their claim to the existence of native title.
KIRBY J: It is a claim that has been registered. It is a claim that has been received by the registrar and it is a claim which this Court has said is a very valuable right, including to negotiate, where ultimately it is found that there is no claim but the process of negotiation protects the rights of the Aboriginal people of this country.
MR PAULING: Only where the right to negotiate procedures in Subdivision B apply, and they do not apply in this case.
McHUGH J: There is no issue of mining or no attempt to acquire any rights. That is your point, is it not?
MR PAULING: I beg your pardon.
McHUGH J: There is no issue of mining involved here?
MR PAULING: None, nor to acquire rights, to acquire native title rights. So that really what I am saying is, and why, Justice Hayne, I came to this, that if somewhere along the line one said, “Look, it is arguable that there might be native title here”, then government can then go through the right to negotiate procedure and issue notices and seek to acquire compulsorily the native title so that it can confer a valid title.
GAUDRON J: Or alternatively you might be injuncted if you do not.
MR PAULING: And we might be injuncted if we do not, yes, but where, as here, one comes to court as a respondent to an application for injunction and says to that court, “This is ridiculous, there cannot be any native title here. Look at this grant, this completely unqualified grant of fee simple, there is no arguable case for the existence of native title”, the court is absolutely correct in striking out the action and refusing the injunctive relief that was sought. Now can I leave that topic and take your Honours to the appeal book, firstly at page 29. What is set out on page 29 as an annexure to the affidavit of Anita Kneebone is the actual “Notification of the Acquisition of Land by the Commonwealth” and your Honours will see:
the land hereunder described together with all buildings and tanks (if any) thereon has been acquired by the Commonwealth under the Lands Acquisition Ordinance 1911 and the Lands Acquisition Act 1906, for the following public purpose, namely, for the purposes of a Quarantine Station.
If you go back then to page 24 and fold out the land grant, this is a copy of the original entered in the register book and we see the volume and folio and on the bottom on the right‑hand side but crossed out is a memorial of an acquisition and then on the left appears to be a more correct memorial of the acquisition by the Commonwealth:
The within land has been acquired by The Commonwealth of Australia in pursuance of the Lands Acquisition Act 1906 and the Lands Acquisition Ordinance 1911 of the Northern Territory for the purpose of a Quarantine Station as appears by Notification of Acquisition published in Commonwealth of Australia Gazette -
and then it goes on to say -
that by virtue of Section 8 of the said Ordinance the land is Crown land and until the Governor General otherwise directs reserved for the said purpose. -
in this case, quarantine. Then if we go to the Northern Territory materials volume II at tab 26, your Honours will see that what we have there is the Lands Acquisition Act 1906. If I could take you directly to section 20. It is on the bottom of page 43. That provides -
If a copy of the notification in the Gazette, certified under the hand of the Attorney-General, is lodged with the Registrar‑General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State ‑ ‑ ‑
GUMMOW J: That is facultative, but is not section 16 the vesting section?
MR PAULING: Yes, your Honour. That is referred to in our written submissions as making it clear that whatever else upon acquisition - this was the point that we put below - the land was free from any native title considerations. If your Honour would also then go to the next tab which is the 1911 Ordinance. The relevant section is section 8 on page 57 that:
Any land acquired in pursuance of this Ordinance and the Act shall on acquisition become Crown land, and, until the Governor‑General otherwise directs, shall be deemed to be reserved for the public purpose for which it was acquired.
The reason, of course, that I mention this is that the idea that somehow land that was acquired equated with wastelands of the Crown has no basis at all.
GAUDRON J: Is there any definition of “Crown land”?
GUMMOW J: Section 11 is not much help of the Ordinance.
MR PAULING: In the 1906 Act though.
GUMMOW J: Yes, I know, but you have to go to 11 of the Ordinance. It tells you to ignore the Act. I do not know where it leaves one.
MR PAULING: It is a curious provision. I will see if I can find a satisfactory answer to it and perhaps put it in writing for tomorrow morning.
GAUDRON J: Well, the definition of “Crown land” in the Lands Acquisition Act refers to land, the property of a State, so it is excluded. What is probably wrong is the memorial that it is Crown land. Well, it may be right, yes. That complies with section 8 but when you look to section 11 it is not Crown land.
MR PAULING: Yes. It is suggested to me that that is why the first memorial was crossed out in the terms in which it was.
GAUDRON J: Yes.
MR PAULING: And replaced by a more complete memorial.
GUMMOW J: It is Commonwealth Crown land if it is anything.
MR PAULING: What is obviously plain is that it is not as if the administrative parcelling of the land into the sections that we saw in the gazette suddenly vanished and there were no more boundaries, the land was no longer identifiable. In any way, it continues. The fact is that the Commonwealth became its owner for the purposes of a quarantine station.
Your Honours, the next point I want to make briefly is concerned with the case of Jurlama 158 CLR at 526 to which your Honours were referred. That was a case, your Honours, that turned on the particular provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 which provides its own statutory definition of traditional Aboriginal owners which has a number of steps or parts, that is to say you have to have a local descent group of Aborigines who have common spiritual affiliation to sites and the land and so forth.
In this case, in Jurlama’s Case, what one had was Aboriginals who were associated with a large area of pastoral land in the whole vicinity of which was a stock reserve, a small triangular piece or whatever it was, but it became available for claim under the Land Rights Act whereas the pastoral leases being owned by persons other than Aboriginals were simply not claimable. The issue was whether, as a matter of statutory definition, the site needed to be in this triangular bit or there could be sites of significance over which there was primary spiritual responsibility anywhere on their country. So it turned on a completely compact and self‑contained Act and whole structure and really is of no assistance at all to the Court in trying to analyse what the situation might be here, that is people having some relationship to land that they do not live on.
The question really was between - not as to whether they lived on because they were pastoral leases Aboriginal people were entitled to be on the very country that they said they were traditionally associated with. The only issue was whether you needed the site in the triangle or somewhere round the triangle but influencing the triangle. It really turned on its own very peculiar provisions and is of no assistance.
The next matter, your Honours, concerns the submission as to status quo and how it is put that, being a registered native title claimant, creates certain rights. Can I take you to firstly, the definition of registered native title claimant at page 126 and also to our first respondent’s outline of submissions opposing the appellant’s notice of motion this morning. That is the short document I handed up just before the adjournment.
KIRBY J: You do not challenge the correctness of the Waanyi decision? You do not ask the Court to reconsider that decision?
MR PAULING: Your Honour, what we do say is that the notion of status quo that was there expressed ‑ ‑ ‑
KIRBY J: I am not trying to get you to do so. I am just, as it were, wanting to make it clear in my own mind that you are not questioning Waanyi. For what Waanyi stands, it still stands, and you do not challenge it.
MR PAULING: Your Honour, what we say is that Waanyi stands for a very narrow proposition, that is where the right to negotiate process is enlivened the right for registered native title claimants to be able to engage in that process of negotiation is a valuable one and that in that context, with a looming mine and all those things, one could see the sense in saying, “This is a mining company. You go away and see if you cannot negotiate an agreement which will give you the right to” ‑ ‑ ‑
KIRBY J: There has to be a looming mine and all of those things but not a looming government.
MR PAULING: No, not a looming government, your Honour, unless the intention of the government is to acquire native title rights and interests. That is what plainly Division D is restricted to. The ordinary business of government in changing zoning or granting lands and so on is unaffected ‑ ‑ ‑
KIRBY J: Granting title to land is unaffected even though that will circumscribe, walk a team of camels through the Native Title Act.
MR PAULING: No, it will not walk a team of camels through the Native Title Act. What it does is to recognise that this Act is concerned with the existence of native title and a future Act regime. If a government were to grant land and say, “I do not care anything about native title. I will ignore the Act” or, as my learned friend put against us, ignore Waanyi, ignore the High Court, “Do not worry about the Native Title Act, just go ahead”. The consequences are invalidity. The consequences are compensation.
KIRBY J: Say in years later after the bridges have been built, the roads constructed, the buildings up, it does not seem a very likely construction of the legislation.
MR PAULING: Well, the opposite side of the coin is that ‑ ‑ ‑
GUMMOW J: The opposite side of a coin is that you will be on the wrong end of an injunction.
MR PAULING: That is right and the Court then, in exercise of its discretion as to whether to grant injunctive relief, would ask the question whether it is arguable that native title exists. If it comes to the conclusion that the primary judge did, then it will not grant the injunction and, more than likely, when asked to do so, will strike the action out.
KIRBY J: Even though that means the Federal Court, as it were, taking over, despite the delicate scheme of the Act, the function which had been committed to the Act with the pre‑condition of the obligation of negotiation.
MR PAULING: In the circumstance of this matter, that is what happened, because the equitable jurisdiction of the court was enlivened by an application. It is really a strange point to be at here with the Full Court sitting to suddenly say, “Let us try to unravel things and pretend they did not happen and that it did not get to the equitable jurisdiction and that we are still in the tribunal and we have not even got to the Federal Court”. I am afraid that cannot happen. This point is too fundamental, too important and too urgent to see it go off on the basis that there is ‑ ‑ ‑
KIRBY J: Even important and urgent points must bend to the law.
MR PAULING: I do not deny that, your Honour, and we say the law in this case is quite plain and that in order to come to the conclusion that an absolute grant of fee simple did not extinguish native title would be to overturn everything that has been said, obiter or not, by members of this Court on the topic.
KIRBY J: Those obiter remarks will remain available to be argued in a case which comes to the Court appropriately, and it seems that there are two cases in the wings that will not be long that will tender the matter appropriately without the Federal Court, as it were, usurping the function of the tribunal which is what Mr Basten says is happening.
MR PAULING: There are a lot of ifs and buts in all that. Indeed, it is postulated that one of the buts is that when it got past the Full Court of the Federal Court and came up here for special leave the Court would say, “No, it is an inappropriate vehicle. Go away.” I mean, here, there is no dispute as to the grant.
GUMMOW J: Well, “here” there was an attempt to get an interlocutory injunction.
MR PAULING: That is right.
GAUDRON J: Which the Act does not provide for. The Act does not specifically enable the tribunal or any court to go round injuncting people in these circumstances. This is, as it were, the inherent equitable jurisdiction of the Court being prayed in aid if there is anything for it to be prayed in aid of.
MR PAULING: As events turn out, there is not anything to be prayed in aid of.
GAUDRON J: That is what we are here to determine.
MR PAULING: Yes.
GAUDRON J: You say there is not.
MR PAULING: That is right. What I am saying to your Honours is this. The way it is put against us, once you get your name on the register and you do not have to do anything to get your name on the register except write in. I could do it tomorrow in relation to anywhere and the registrar would be bound to write it down and I would be on the register. I would be a registered native title claimant.
KIRBY J: Yes, but if yours was an absolutely spurious or mala fides claim, that can be quite readily removed from the register.
MR PAULING: Perhaps I could get somebody friendly to make such a claim but, your Honours, what has been put against us is that becoming a native title claimant really puts one in a position, a superior position to somebody who had a caveatable interest because, at least, where there is a caveat on the title a grant could be made, albeit with the problems of registration, so that when it gets registered some issue will arise as to whether the caveatable interest can be sustained.
The argument put against us in this case is that once you are a registered native title claimant the government loses the power to make any grant in respect of the land, no power at all except if it assumes that there is native title. Even if it is totally convinced that there cannot be, it has got to work on the assumption there is native title and say, “I know you have not got any native title, but I am going to acquire it anyway” and go through that process ,as I have explained to you what is involved, the eight months of waiting in negotiation and the three to six months of arbitration, depending on what outcome you want, mining or compulsory acquisition.
So, really, once this court became seized of the matter, that is the Federal Court, it was bound to have to decide whether there was anything to protect and, in our respectful submission, the decision is plainly correct. What I was going to say about section 233 of the Native Title Act, if I can take you to it because, if Mr Basten’s submissions be correct, then the draftsman needs to do some work on this section in relation to future act because it should not read, in 233(1)(c)(i) - it should not say:
validly affects native title in relation to the land or waters to any extent -
it should say that it validly affects any land or waters in respect of which there is a registered native title claimant, because what is proposed against us is a system of presumptive title by registration and requiring no more.
Your Honours, the last two things I wanted to deal with, and very briefly because they are, we believe, adequately dealt with in our submissions, is firstly the question of plenum dominium. Can I refer you to our written submissions, that is the submissions of the Attorney-General for the Northern Territory dated 9th June, and there are two things I want to draw particular attention to. The first is in paragraph 8. We there say this concept of permanent extinguishment of the native title is consistent with the language employed in the judgments in Mabo (No 2). Thus Justice Brennan cites the example of a lease granted by the Crown which is inconsistent with native title. On the expiry of the term, the Crown’s title is expanded from the mere radical title and becomes the “plenum dominium” or full and complete ownership.
McHUGH J: Yes, but unfortunately for you, Wik is inconsistent with that proposition, is it not? Wik decides in terms that native title can exist and it does not require the existence of a radical title to continue to exist.
MR PAULING: I do not suggest that it does. What I am saying, your Honours, is this - and bear in mind that in Wik the majority were of the view that the pastoral leases, so‑called, did not have the necessary inconsistency to extinguish all incidence of native title but if one looks at the acquisition of sovereignty according to the doctrine we see, the Crown’s radical title is burdened with native title if it exists and one moves along to a point where there is an inconsistent grant, let us say this freehold grant here. On our argument ‑ ‑ ‑
McHUGH J: You start with the proposition - sorry to interrupt you but could I just make clear what I am saying. You start with the proposition that the Crown has a radical title which is burdened with native title.
MR PAULING: Yes, that is so.
McHUGH J: Wik says the Crown can make a grant of a pastoral lease and native title continues to exist.
MR PAULING: Yes, and that is because ‑ ‑ ‑
GUMMOW J: Well, wait a minute, then there is a statute. That is what Wik is all about - statutes.
MR PAULING: All right. I accept the ‑ ‑ ‑
GUMMOW J: Sir Gerard Brennan seemed to be talking about the prerogative - gone.
MR PAULING: Let me just say the point briefly and I can move on. The point we make to the extent that there is said to be inconsistency in Justice Brennan’s point in this, if it be correct that on the grant of a fee simple as in this case, at that very point native title vanishes.
GUMMOW J: To chase this rabbit right down its burrow, what is the source of the Crown’s radical title in the Northern Territory? Is it some position that comes from New South Wales?
MR PAULING: Yes, originally.
GUMMOW J: I am looking at the recital to the Northern Territory Act under tab 28 in your volume II which suggests that at some stage under imperial legislation, I think, passed in 1862 or 1863 ‑ ‑ ‑
MR PAULING: 1863 was the year of the ‑ ‑ ‑
GUMMOW J: That was the year of the letters patent under - the statute passed the year before. It seems to be so.
MR PAULING: Yes.
GUMMOW J: Or a couple of years before, so it really starts off as New South Wales, does it, the imperial activity in relation to the colony of New South Wales.
MR PAULING: The first attempts at settling the northern part, yes, and then the western boundary, if you like, of the Northern Territory was moved on two occasions.
GUMMOW J: It seemed to be suggested in some of the material that we gave the root in South Australia where these people settled there under their statutes, but that does not seem to be right in relation to the Northern Territory. The imperial root is in New South Wales if it is anywhere.
MR PAULING: Except to the extent that the new letters patent annexing the Northern Territory to South Australia.
GUMMOW J: Yes, that is right.
MR PAULING: Began a new process.
GUMMOW J: What I wonder is under any New South Wales law that was in force before this transfer to the Northern Territory, was there an Act relating to the disposition of wastelands equivalent to section 6 on page 151 of the Northern Territory Act. Do you see what I am getting at?
MR PAULING: Yes.
GUMMOW J: Now there may well be, for all I know, but we have not been provided with it and if one is to get to the bottom of it, that is probably something we need to be provided with.
MR PAULING: It may be that, following through the process looked at in Wik supplies the answer, because Queensland would have been in the same case prior to its separation.
GUMMOW J: That is right. Yes.
MR PAULING: In any event, your Honours, as I say at page 8 we seek to say that there is no internal consistency in what Justice Brennan said concerning expanding of the radical title to a full title so that at the end of a lease property so‑called or, indeed, the acquisition of land under a freehold it was no longer burdened by the interest it had itself granted nor was it burdened by any native title, a different case to the situation immediately before the grant.
The other point we wish to draw particular attention to is paragraph 7 in our submissions, in which we seek to analyse and dispute the way in which my learned friends categorise what is happening as the common law is suddenly becoming blinkered and unable to see or recognise something until that impediment goes away, when it can see it again. For reasons that we have put and others have put at length, it is our submission it is quite clear that “extinguishment” means extinguishment forever. Those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor.
MR BURMESTER: May it please the Court, we handed in this morning some submissions in relation to the effect that acceptance of the appellants’ application under the Native Title Act, this issue of freeze, and I would like the Court’s leave to take your Honours to some of those issues, in particular the construction of the Native Title Act. The discussion that your Honours had with Mr Pauling just recently indicates that there seems to be some confusion still as to how the native title operates in relation to future acts.
Your Honours, it consists of two parts: there are the future acts, that are dealt with in the right to negotiation part which, as my friend Mr Pauling indicated, only applies to certain future acts, and they are the acts defined in section 26(2). Other future acts are dealt with in Subdivision A starting at section 21, and included in that part is section 22 which provides for invalidity if an impermissible future act takes place to the extent it affects native title. The rights in this Subdivision A, the impermissible future rights, are rights that do not depend on registration; but they are rights given to native title holders and the consequence if an act is done that affects native title is, as has been said, invalidity. If a right falls within Subdivision B and the right to negotiate, those are the rights given to registered native title claimants. So the Act draws a distinction between rights given to claimants under Subdivision B and other rights under Subdivision A which are only given to native title holders.
KIRBY J: Section 22 appears in an Act which is an Act that sets up a tribunal to determine whether there is a valid entitlement to native title. It would not seem to be a sensible construction of the Act that at the threshold the issue of whether there is or is not native title takes a case right out of the scheme of the Act. It would seem that that is a matter that will take its course through the procedures of the Act. Is that right or wrong?
MR BURMESTER: Your Honour, it stays within the procedures of the Act, but what the Act ultimately might determine is whether there is, in fact, a native title holder who then can get the benefit of an invalid act, for instance, or the benefits of Subdivision A; it is only in relation to the specific acts defined in section 26(2) that the scheme contemplates, as it were, a right to negotiate from day one, simply through the registration of a claim.
KIRBY J: But does that mean that a State or Territory can grant a title, say, to a mining operation, and thereby, as it were, circumventing the scheme of Subdivision ‑ ‑ ‑
MR BURMESTER: No, your Honour, because the mining right is one that is covered by section 26(2).
KIRBY J: But that might be down the track; that might be a couple of months later.
MR BURMESTER: Your Honour, if what they are granting is a right to establish a mine ‑ ‑ ‑
KIRBY J: Let them grant it to a citizen, and then a couple of months later the citizen grants it to a mining organisation. Thereby you have just walked right out of the scheme of the Act, have you not?
MR BURMESTER: If it was a right granted between the private citizen and the mining company, yes, that may not be covered by the Subdivision B right to negotiate but, if it is a question of a mining lease being granted by a government under legislation, then it would be covered ‑ ‑ ‑
KIRBY J: If that is the theory of the Act, and that is the construction of it, there you have a team of camels. No one will ever deal with matters directly; rights will be granted under title to third parties and then subsequently to mining interests.
GUMMOW J: But the minerals will be reserved, from what we have seen a couple of ‑ ‑ ‑
MR BURMESTER: That is correct, your Honour. In the normal course any rights to mine would flow from an Act given by a government under legislation, and so covered by the right to negotiate.
KIRBY J: All I am saying is that that makes it rather unlikely, if that is the construction that is intended.
MR BURMESTER: Your Honour, all I can submit is that one consider the argument set out from particularly paragraph 32 of our written submissions in detail. The Native Title Act, in our view, gives this protection in relation to impermissible future acts, irrespective of whether a native title claim has been made. So what the Native Title Act is concerned to do is to protect native title itself rather than claims for native title. If the view that there is a freeze once one makes a registered claim is correct, then it seems that what the Act is doing is protecting claims that are registered and giving absolutely no protection to native title before that occurs. In our submission, that is not a correct construction of the way in which the Act works. As my friend Mr Pauling said, in our contention, what we have here is an Act that does not fall within Subdivision B, but falls within Subdivision A.
We also contend, your Honour, that there is nothing in the Waanyi decision that leads to a different result, and this is dealt with at paragraphs 47 and following, of our written submissions. That case was concerned, firstly, with the question of registration, and then with the question of the right to negotiate, but it says absolutely nothing about the regime applicable to impermissible future acts.
GUMMOW J: I am sorry, Mr Solicitor, what paragraph was that?
MR BURMESTER: Paragraph 47 and following.
GUMMOW J: Thank you.
MR BURMESTER: In paragraph 49 we make the point that I have just said, that if the appellates are correct, the logic of their argument is that the protection afforded by the Native Title Act is only triggered by the acceptance of an application for determination, so that existing native title rights which have not been the subject of an application are unprotected. We say that would be to interpret the Act in a way inconsistent with its object or purpose.
Your Honours, if I could turn to the other issues; the issue of extinguishment, we have set out in the submissions filed on 10 June, our arguments in detail. After filing those submissions we have, of course, received detailed written submissions in reply, and it seemed that the easiest way in which to deal with those new issues that are raised in that reply would be to hand up a short, written further submissions, ourselves, if your Honour pleases. We do not deal, in those submissions, with the historical issues concerning the constitution of South Australia or the creation of the colony, or the area of the Northern Territory. I would, however, give your Honours reference to an article by Justice McClelland on State colonial boundaries, in (1971) 45 ALJ 671, which sets out the various steps taken to create the various States and Territories.
Your Honour, in our submission, this case, properly analysed, is the reverse of the situation which faced the Court in the Wik Case. In that case the Court was dealing with a sui generis statutory interest, the incidence of which were, themselves, defined by the statute under which the interest was granted.
In this case the Northern Territory Land Act says nothing about the incidence of a grant of land in fee simple. Section 8 empowers the Governor to make the grant in fee simple to Mr Benham and the Act does impose limitations on the Governor’s powers to make grants, requiring the land to be first surveyed and so on. So it sets up mechanisms for the orderly disposition of land. But, it is only by reference to the common law, the consequences of a grant in fee simple and the incidence of that estate can be ascertained. So, in our submission, this is the reverse of the Wik situation. Here, the nature of the interest that is granted can only be understood by reference to the common law. I would refer to paragraphs 4.15 to 4.21, in particular, of our submissions.
Given that this is a grant in fee simple, in our contention that leaves no room for any other interest in the land. By making the grant in fee simple the Crown necessarily dealt with the disposition of the whole of the interest in land. It does not matter whether the grant contained exceptions or defeasances, or is unqualified, as in this case. With the grant of a fee simple, the nature of estate which is granted only serves to enforce the view that it is a complete and comprehensive dealing with all interest in land. So, on this basis, your Honours, there is no room for some other interest, be it native title or whatever, to subsist, absent some statutory right or power or privilege.
There has been some reference to English common law customary rights which are said in some way to apply in relation to fee simple, such as the right to hold revels on a village green, but in our submission they do not detract from the proposition I am putting. These quasi‑easements, as they are called in some writings, are not rights or interest in the land itself, but are, as it were, a local variation of the common law. That, your Honour, is dealt with in 3.3 to 3.5 of our written submissions. Any such common law customs that might be recognised can be destroyed by legislation. They are vulnerable, as in the case of native title, to statutory extinguishment; the question reduces, therefore, to what is the intention in the making of a grant. In our view, when a fee simple is granted under this statute there is no room for any customary rights such as that.
It is also, your Honours, meaningless to speak of native title in the context of rights to land which do not involve access to, or use, or occupation of the land. In our submission, the use and occupation of land lies at the heart of native title. That is the very reason why the common law recognises and enforces native title. The decision in Mabo (No 2) does not go further to protect intellectual property, or purely spiritual needs, such as the appellants suggest in their submissions in reply. Such needs, if they are to be protected, follow as a result of statutory protection such as the Aboriginal and Torres Strait Islander Heritage Protection Act, but they are not rights of such a nature that can burden the Crown’s radical title. The Crown’s ultimate title to the land can only be burdened by native title rights and interests in land, in our submission.
KIRBY J: I thought there were dicta that said that, or suggested you did not actually have to be in continuous occupation. It does not require that.
MR BURMESTER: Yes, your Honour, we accept that. We are not saying the rights depend on continuous occupation, but they have to be rights in relation to the land. A right to come on to the land to do something on the land in relation to the land, and there seems to be a suggestion in the appellants’ reply that there can be non‑accessory native title of some description which they say might therefore not have been extinguished by the grant of a fee simple right, and we would dispute that.
If I could come to one issue that seems to have figured in some of the submissions made by my friends, what seems to be contended by the appellants and interveners in support, would appear to involve the Court recognising a new category of rights which, by their nature, could not be native title, as that concept has been understood to date, or explained in the cases. What they seek to do is remove the focus on the legislative intention at the time of the grant and seemed to slide between a recognition of rights and land vested when sovereignty was acquired and recognised as a continuation of an Aboriginal customary legal system, under which those rights were originally vested, and rights that have continued and at some later stage are recognised by the common law.
Native title rights are pre-sovereign rights, they are rights in land which existed under the pre-sovereignty system of customary laws. That does not mean they are not liable to subsequent extinguishment, and if the adequate intention is there, then that occurs. But, in our submission, once the chain or connection with pre-sovereign rights, which are recognised by the common law as native title, is broken, such as by the grant in estate in fee simple, then whatever rights might exist in the land, should that estate cease, cannot be those pre-sovereignty rights, they must be some new rights created by the common law, in our submission. That seems to us to be the logical conclusion from the submissions that are being put by the appellants.
But, in our submission, such rights cannot be native title. Native title rights are rights recognised by the common law, but they are not rights created by the common law. So, in our submission, to admit of revival is to admit of the possibility that the common law may create native title rights and interests. In our submission, that would involve a fundamental departure from the settled principles of governing native title.
Your Honours, I can refer to 4.8 of our principal submissions, and in particular, the statement by Justices Deane and Gaudron in Mabo([No 2) 175 CLR 1 at page 89, which makes the point that recognition:
is predicated upon the absence of any intervening grant from the Crown.
Alternatively, on the submissions that are being put against us, revival would seem to require parallel systems of law with two sovereigns. What the appellants and the Yorta Yorta submissions contend is that common law must recognise the continuing reality of the observance of Aboriginal rights and customs, and therefore give effect to that once an inconsistent grant has come to an end.
McHUGH J: But is it not a question of the intention to be derived from the 1872 Northern Territory Land Act as to what one reads into section 8 of that Act? Having regard to Wik, why is it not consistent with section 8 of that Act, that native title was not extinguished?
MR BURMESTER: Your Honour, in our submission, what is granted is a right in fee simple, and ‑ ‑ ‑
McHUGH J: I know what is granted is a right in fee simple, but in respect of pastoral leases, in Wik it was said there was nothing in the Act which indicated intention to do away with native title rights. If you examine the 1872 Act, you see a right to grant estates in fee simple to lease land, or lease land for pastoral purposes, mining purposes, for fishing purposes. What would be inconsistent, as a matter of construction, with holding that native title rights continue to exist, notwithstanding. Section 8 says you may grant in fee simple.
MR BURMESTER: Your Honour, we say here, unlike Wik, one cannot, from the statute itself, find the incidence of the particular grant, and from that derive an intention not to extinguish native title. But because you have a grant of fee simple, that, by itself, by the use of that expression, by the conferring of that inconsistent interest, must necessarily extinguish native title.
McHUGH J: Is that right? At common law, for example, did not the right of common exist, notwithstanding somebody had an estate in fee simple?
MR BURMESTER: There may be certain customary rights that the common law recognises, but we say they are not burdens on the title, and they go back to time immemorial and they are rights that the common law recognises. We say that the traditional view of native title is that it is something pre-sovereignty that is recognised until there is an inconsistent grant, but once an inconsistent grant is made, we say that extinguishes native title, and we say that a statute that confers the right to grant fee simple, by itself, necessarily evinces an intention to extinguish any other interest in the land, any pre-sovereignty interest in the land.
McHUGH J: Take the leases that were involved in Wik, the pastoral leases. The Act referred to leases; it referred to grants; it referred to interest in land, and yet it was held that those interests were such that they did not exclude rights of native title. Why should the mere fact that the common law term “fee simple” is used require an interpretation of this statute that would bring about the destruction of these rights which must now be taken to have been inherent in the land?
MR BURMESTER: In the Wik decision, the construction of the statute was that the rights granted were limited rights that did not amount to exclusive possession.
McHUGH J: I know, but the Court held that notwithstanding that it was burdened with such matters as grants, interests in land - they were the terms used in respect of the leases, and it distinguished between leases and licences, yet, this Court held in Wik that a pastoral lease nevertheless could operate consistently with native title rights.
GAUDRON J: It was held that they were not really leases.
MR BURMESTER: Yes, your Honour, that ‑ ‑ ‑
McHUGH J: I know they held they were not really leases, but nevertheless, they were grants of interest in land according to the statute, the terms of the statute, itself. They were terms, grants, interest.
MR BURMESTER: And one can make certain grants of interest in land which will not wholly extinguish native title such as the pastoral leases in Wik, but where there is a grant of an interest in land which is of the extent of fee simple, the greatest estate known to the law, we say that leaves no room for the continued co‑existence of any native title. The Wik statute ‑ ‑ ‑
McHUGH J: Take the question of metals at common law, were they always reserved? Estate in fee simple, who owned the metals in the land?
MR BURMESTER: Well, certainly royal metals, your Honour, were traditionally reserved and held by the Crown.
McHUGH J: Yes, but other metals were not; but many statutes in this country reserve various mineral rights to the Crown, do they not?
MR BURMESTER: It is a question of looking at the nature of the interest that has been granted, and asking if there is any possibility of native title co‑existing. In our submission, the Wik Case shows that in the case of pastoral leases under that particular Queensland legislation there was room for co‑existence. We say, under this Act, where the incidence of the fee simple grant are not spelled out in the legislation itself, one can only give meaning to that expression by reference to the common law. The common law regards it as the greatest estate, and in that situation there is no room for continued co‑existence.
McHUGH J: But this is Australia, and this legislation has to be interpreted against a background of hundreds of thousands of Aboriginals roaming the country with vested rights recognised by the common law.
MR BURMESTER: Yes, your Honour, but where one cannot entirely divorce the land tenure system in this country from traditional common law notions, the use of the words “fee simple” must necessarily imply certain common law understandings of that term, and even in the Australian context one cannot ignore that. Your Honour, should I stop here. It is a convenient time.
GLEESON CJ: How long do you expect to require for the completion of your argument, Mr Solicitor?
MR BURMESTER: Ten minutes, your Honour.
GLEESON CJ: Very well, we will adjourn until 10.15.
AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 23 JUNE 1998
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