Griffiths & Anor v Minister for Lands, Planning and Environment & Anor

[2005] HCATrans 223

[2005] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2004

B e t w e e n -

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

Applicants

and

MINISTER FOR LANDS, PLANNING AND ENVIRONMENT

First Respondent

LANDS AND MINING TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 22 APRIL 2005, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear with my learned friend, MR S.A. GLACKEN, for the applicant.  (instructed by Northern Land Council)

MS R.J. WEBB, QC:   If the Court pleases, I appear with MS S.L. BROWNHILL for the first respondent.  (instructed by Solicitor for the Northern Territory)

HAYNE J:   I should say that I have a certificate from the Deputy Registrar that an appearance has been filed by the second respondent, the Lands and Mining Tribunal, indicating that the Tribunal submits to the order of the Court except as to costs and will not appear at the application.  Yes, Mr Gageler.

MR GAGELER:   Your Honour, the notices of acquisition in the present case had two relevant features.  The first is that they purported to acquire only native title interests.  One sees that from page 189 of the application book, paragraph [52].  The second is that they purported to acquire those native title interests for the sole purpose of allowing the land in question to be either sold or leased to third parties, and one sees that from the previous page, paragraphs [50] to [51].

In our submission, the first of those features gives rise to invalidity on the ground of inconsistency or repugnancy to provisions of the Native Title Act – I will come to that in a moment.  The second feature is that in any event the notices are taken outside the scope of the enabling power under the Lands Acquisition Act.

Your Honours, could I go first to the Lands Acquisition Act, which is conveniently contained in our learned friend’s volume of authorities; the relevant provisions appearing at pages 91 and 97. At page 91 your Honours will see section 43(1)(b), which relevantly provides:

the Minister may acquire land under this Act for any purpose whatsoever –

and dropping down to (b):

by compulsory acquisition by causing a notice declaring the land to be acquired to be published in the Gazette.

One then goes to section 46, page 97, which says:

upon publication in the Gazette of a notice of acquisition –

(a)      the land described in the notice vests in the Territory freed and discharged from all interests . . . 

(b)      any interest that a person had in the acquired land is divested –

The relevant provisions of the Native Title Act are most conveniently located in the extract that your Honours were provided separately with our bundle of legislation and authorities.  At page 92 one sees section 24MD, which applies to future acts that satisfy the freehold test and is applicable here.  Subsection (2) provides:

If –

relevantly, (b) –

the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired . . . 

then:

(c)      the compulsory acquisition extinguishes the whole or the part of the native title rights and interests -

So it is only where (b) is satisfied that the consequence in (c) follows.  Subsection (3) then, over the page, says that:

In the case of any future act . . . not covered by subsection (2) or (2A):

(a)      the non-extinguishment principle applies –

Now, what is the non-extinguishment principle?  One finds it at page 385 in section 238.  It is necessary to take into account subsections (2), (3), (5) and (6), but critically subsection (2) says under the “Non-extinguishment principle”:

the native title is nevertheless not extinguished –

and subsection (5) says despite what might be in the previous subsection, particular subsection (3), the native titleholders continue to hold native title.

Now, your Honours, in our submission, when one looks at those provisions it is plain, or at the very least plainly arguable, that to fall within section 24MD(2)(b) the acquisition in question must acquire both non‑native title interests and native title interests in the one acquisition, and that if one is then driven to the non-extinguishment principle, there is, in our submission, a pretty clear – in fact, we would say brutal – repugnancy between a provision, section 46 of the Northern Territory Lands Acquisition Act, that says that the native title interest is discharged and divested, and the provisions of section 238 that say that it is not extinguished and it continues to be held.  That is the first point, your Honours.

HAYNE J:   Now, where does the Court of Appeal deal with that?  It is at ‑ ‑ ‑

MR GAGELER:   The Court of Appeal deals with it inadequately, in our submission, at page 197 in one paragraph, paragraph [74].  This is the judgment of Justice Mildren which, on this point, was accepted by the other two members of the court.  It deals with it inadequately because, first, in that one paragraph it fails to reach a view on the proper construction of 24MD(2)(b) and it does so because it misstates the consequences of the non-extinguishment principle applying.

HAYNE J:   And in what respect does it do that? 

MR GAGELER:   It fails to come to grips with the repugnancy, the clear repugnancy, that I pointed out.

HAYNE J:   And do we find in the Court of Appeal any consideration of GPAO and considerations of that kind?

MR GAGELER:   No, not at all.

HAYNE J:   And were they argued in the Court of Appeal?

MR GAGELER:   I cannot say those cases were argued, your Honour.  The point was in play.

HAYNE J:   Yes.

MR GAGELER:   Your Honours, that is the first point.  The second point, the ultra vires point, is ‑ ‑ ‑

HAYNE J:   Well, what is the limitation you contend for on the apparently general words “any purpose whatsoever”?

MR GAGELER:   Your Honour, it really comes down to this.  The power is conferred for any purpose whatsoever, but it is still conferred for a purpose.  What is a purpose?  It is some use to be made of the land by the acquiring authority.

HAYNE J:   Why?  Why is use not relevantly satisfied by ‑ ‑ ‑

MR GAGELER:   Alienation.

HAYNE J:   Alienation.

MR GAGELER:   It is a question of construction obviously, in the context of an Act.

HAYNE J:   Plainly.  I am with you so far, Mr Gageler.

MR GAGELER: Step one, your Honour. Step two is if your Honour considers the context of this Act, one has to read section 43 with section 48, page 98 – I did not take your Honours to this, I was saving it for this moment. What your Honours see is a legislative contemplation that if the land – I am just reading the last words of the sentence in subsection (1) – if the land “is no longer required for the purpose for which it was acquired” then it “may be dealt with as unalienated Crown land”, and obviously may be alienated. The point is that that gives some support, in our respectful submission, for the notion ordinarily underlying a piece of acquisition legislation, we would say, that it is acquisition for some ongoing purpose and not acquisition so that the Crown can immediately give the land one way or another to a third party. Your Honour, we do gain some sort of ‑ ‑ ‑

HAYNE J:   Well, give or sell.

MR GAGELER:   Give or sell of course, yes.

HAYNE J:   Yes.

MR GAGELER:   I meant alienate, your Honour.  I did not mean to go into the finances.

CALLINAN J:   Mr Gageler, there is a case, a single judge case, Prentice v Brisbane City Council [1966] Qd R 394, in which Sir Alan Mansfield held, in the case of a council resumption, Brisbane City Council, that the council’s main purpose in resolving that any of the plaintiff’s lands were required to assist the developmental plan of the company - and that was a third party - notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the project, the acquisition was nonetheless invalid. I often wondered about that case, in view of a much broader view that is now taken of town planning and what is in the party’s interests, but it is a case which ‑ ‑ ‑

MR GAGELER:   Well, it sounds to be consistent with ‑ ‑ ‑

CALLINAN J:   It is on the point, I think.

MR GAGELER:   Yes.  And, your Honour, what is also on the point, as we see it, is the ‑ ‑ ‑

HAYNE J:   Just before you deal with that, why is it not a purpose of the acquiring authority to turn the land to profit by alienation?

MR GAGELER:   Because that is not – it really comes down to the construction of the word “purpose”, I accept that, but in the particular context.  The purpose is referring to some use to which the land is to be put.  The purpose ‑ ‑ ‑

CALLINAN J:   But, Mr Gageler, it has been part on the history of this country that land has been alienated by or on behalf of the Crown for all sorts of developmental and other purposes.

MR GAGELER:   I am not - your Honour may ‑ ‑ ‑

CALLINAN J:   And that has always been regarded as, using the shorthand, a legitimate governmental purpose.

MR GAGELER:   We have no difficulty whatsoever with the notion of the Northern Territory legislature having power by any special Act it chooses to enact to acquire the land for the purpose of ‑ ‑ ‑

CALLINAN J:   But it would say it has an Act to do that.

MR GAGELER:   I know it would say that, your Honour, but it is a matter of construing that general Act that confers a general power on the executive in the context of section 48 and in the context – and I wanted to come to this – of observations like one finds at page 181 in the judgement of Sir Owen Dixon in Andrews v Howell.  At page 181 of the application book your Honours will see the passage in paragraph [33], a passage that was alluded to, if not endorsed, by the Full Court in Clunies-Ross.  I will not read it to your Honours, but you see what is said.  That also, like your Honour’s Queensland example, appears to fit the present case.

HAYNE J:   Sorry, what page of Andrews v Howell?

MR GAGELER:   It is at page 281.  But there is a convenient extract at page 181 of the application book, paragraph [33].

HAYNE J:   Yes.  Now, what relationship is there, if any, between this point about statutory construction of the Lands Acquisition Act and this point of repugnancy with the ‑ ‑ ‑

MR GAGELER:   They are separate points, quite separate points.  We only need to win on one, but they are separate.  So there is that practical relationship.  So, your Honours, if one goes to what the Court of Appeal said about this, at page 202 one sees the judgment of Justice Mildren on this point, and Justice Riley agreed, bottom of page 202.  At line 20 in particular his Honour says:

In particular, there is no reason why it would necessarily be beyond the purposes of the LAA for the Territory to acquire the interests of A in order to confer a wider interest on B.

We contest that proposition, your Honour.  In relation to the judgment of Chief Justice Martin, one finds the relevant passage at page 183.  I think his Honour’s point is sufficiently captured in the last sentence of paragraph [37] about line 17:

Provided the purpose is a lawful purpose in respect of which the Legislature has power to make laws, if that purpose is related or connected to the need for or proposed use of the land, the acquisition will be within the power conferred by s 43.

HAYNE J:   Use by whom?

MR GAGELER:   In that ‑ ‑ ‑

HAYNE J:   Does your argument depend upon the proposition that acquisition for a purpose requires the existence of a purpose of use by government?

MR GAGELER:   By the executive.  Yes, but use by government is the way we put it, yes.

HAYNE J:   Yes.  And how does that sit with Clunies-Ross.

MR GAGELER:   Or my learned junior says, by or on behalf of government.

HAYNE J:   Yes.  How does that sit with Clunies-Ross?

MR GAGELER:   It is entirely consistent, perfectly consistent, with Clunies-Ross, although Clunies-Ross I would have to say does not go so far as to decide this point.  In Clunies-Ross the reason for acquiring the property was to take it away from Mr Clunies-Ross.  It was not to do anything at all.  So we have to take one step beyond Clunies-Ross.

CALLINAN J:   It was to resettle Mr Clunies-Ross, was it not?

MR GAGELER:   Get him off the island, I think, yes.  Take away his home so he had to go somewhere, yes.  Your Honours, those are our submissions.

HAYNE J:   Yes thank you, Mr Gageler.  Yes, Ms Webb.

MS WEBB:   Thank you, your Honour.  The two issues are, firstly, the validity of the notices in respect of three proposed acquisitions of all interests including native title rights and interests, if any, in certain lots of Crown land within the town of Timber Creek.  Now, the first two points there are we are dealing with notices of proposed acquisition – notices of proposals, not with the notices of acquisition which have not yet issued.  The second ‑ ‑ ‑

HAYNE J:   What consequence follows from that?

MS WEBB: The consequence that follows from that is that any reliance on section 46 of the Lands Acquisition Act and the interpretation of that section is premature. There has been nothing yet to enliven section 46 of the Lands Acquisition Act, which is only ‑ ‑ ‑

HAYNE J:   What is the statutory warrant for the notice that you say is now in issue?  Where do we find the statutory authority for that?

MS WEBB: The notices now in issue are in section 33 of the Lands Acquisition Act – section 32 firstly.  What happens is there is a Part IV procedure where the Minister if he decides to acquire land has to serve notices of proposal in relation to the proposed acquisition, and you will see at section 32 in our volume of authorities, that section dealing with “Notification of proposal”.  In fact, there is a summary of this whole procedure in the application book at page 174 in paragraph [16], the Chief Justice ‑ ‑ ‑

HAYNE J:   Now, what follows from the fact that we are at this preliminary stage, not at the Part V stage of acquisition?

MS WEBB:   What has happened at this stage is the challenge is to the validity of the notices of proposal, also to the validity of the decision of the Minister to act on the recommendation of the Tribunal to acquire.  There is no acquisition, there is no ‑ ‑ ‑

CALLINAN J:   No, but is this not the appropriate time to challenge it?  Otherwise people can take interests and would commit themselves.  It seems to me that this is a very, very technical and unattractive point and does not deal with the substance.

MS WEBB:   One of the difficulties, your Honour, is that the way the argument is put is that section 24MD – it involves the interpretation of section 24MD.

HAYNE J:   Yes, it does.

MS WEBB: Section 46 is said to extinguish native title. That is said to be the statutory purpose of the notice of acquisition.

HAYNE J:   But are we not at the point where there is a threat to exercise Part V power?

MS WEBB:   Well, Part V power is actually the notices of proposal.  It is in fact the threat that these ‑ ‑ ‑

HAYNE J:   No, Part V acquisition.

MS WEBB:   Yes, the acquisition – there is, your Honour.  There is, your Honour.

HAYNE J:   And is it said that that threat is unreal?

MS WEBB:   No, it is not, your Honour.

HAYNE J:   And are we not at the point where it is appropriate to consider whether that threat, now made, would be lawful if carried out?

MS WEBB:   Your Honour, can I – yes, your Honour, we may well do that, but the point is this.  If we assume that notices of acquisition are going to issue, we still do not know if native title exists.  That is one thing.  Firstly, there is no determination yet of the existence of native title.  There are applications – and we do not know whether in fact the notices of acquisition are going to have any effect.  There is still to be a determination of that.

The next point is that even if the notices of acquisition issue and we assume that native title exists, there are two scenarios. The first is that if the native title is extinguished by the notices of acquisition by force of section 46 of the Lands Acquisition Act and if that acquisition falls within section 24MD(2) of the Native Title Act, which is an issue still to be determined, then there will be repugnancy, then we would say you would read down the Lands Acquisition Act in accordance with well-established principles so as to be consistent not to invalidate the acquisition.  The other possibility is ‑ ‑ ‑

HAYNE J:   And at what point would one be doing that?  After acquisition and subsequent disposal?  Am I right in understanding the point you now make to be a point of prematurity?

MS WEBB:   It is, your Honour.

HAYNE J:   Now, why is it premature to examine the question?  It seems to me, first, there is a live question in that there is a live threat to acquire, a live threat to exercise Part V power.  Secondly, it seems to me that what is sought to be acquired is any extant native title right and interest.

MS WEBB:   And any other interest, your Honour.

HAYNE J:   Well, it is Crown land, is it not?

MS WEBB:   It is, your Honour.

HAYNE J:   What other right or interest, then, could there be, other than native title rights and interests?

MS WEBB:   Well, your Honour, none that we know of at present, but, of course, that was the situation before we had Mabo (No 2).  At that time the Crown thought that alienation of Crown land was permissible.  We now have the requirements of the Native Title Act, which we have attempted to comply with in this case.

HAYNE J:   Now, subject to that qualification, whose content is not immediately apparent to me, the only purpose is to acquire native title rights and interests.  Why is the dispute about intersection, or possible intersection, between Lands Acquisition Act Part V and Native Title Act not ripe for determination?

MS WEBB:   There may not be native title, your Honour.  This is one of the difficulties.  The situation is this.  There is presently before the Federal Court an application for the determination of native title in relation to the town of Timber Creek, which involves these particular lots of land.  Now ‑ ‑ ‑

HAYNE J:   And should the final determination of this dispute await the outcome of that litigation?

MS WEBB:   We say it should, and the reason it should, your Honour, is this ‑ ‑ ‑

HAYNE J:   Do you say we should put off this application for leave pending that determination?

MS WEBB:   Your Honour, the question may arise in that determination.  The way it will arise is this.  The court, when it is considering whether or not native title exists in relation to these lots, will consider the effect of any notice of acquisition.  That will involve that court ‑ ‑ ‑

HAYNE J:   I am sorry, Ms Webb, I must press you a little. Do you say that we should defer the determination of this application for special leave until that Federal Court litigation about native title rights and interests is complete?

MS WEBB:   Yes, your Honour.  This issue is premature.  In fact, the Court of Appeal – it was not an issue that the Court of Appeal found necessary to determine either.  In fact, the Court of Appeal was told that it was not an issue for it to determine.  It is not an issue that the Court of Appeal has determined; it does not come up to your Honours that way.  It will, if it comes up, come up through the decision of the Federal Court in relation to the determination of native title that it is presently hearing at the moment.  Submissions are to be made next week in relation to this.

HAYNE J:   Were we to defer this application, it would seem to me that the inevitable consequence would be that there could be no execution of the intended acquisition pending the determination of those Federal Court proceedings and us later considering what to do in this leave.  That seems to me to be a set of consequences that follow, but am I wrong?

MS WEBB:   Well, there is a practical problem.  If we were to defer this special leave application, the Minister would need to be relieved from his undertaking not to issue notices.  So the question of whether the notices of acquisition do have the effect of extinguishing native title could be determined by the Federal Court.

HAYNE J:   It immediately seems to stand things on its head, to my mind, but perhaps I am not understanding things properly.

MS WEBB:   Well, your Honour, if I can ‑ ‑ ‑

HAYNE J:   Relieving the Minister from an undertaking not to proceed with the acquisition is, I would have thought, the converse of the consequences that seem to me to follow from deferring this, pending finding out whether there are native title rights in issue.

MS WEBB:   Well, your Honour, that would be one step, to find out if there are native title rights and interest.  It then turns to whether this Court, or whether a Federal Court, are indeed – the Court of Appeal has not decided this point, it was not an issue for it – whether this Court, without the assistance of the Federal Court or the Court of Appeal, takes on the task of deciding whether or not native title is extinguished or would be extinguished by the issue or the publication of notices of acquisition.

HAYNE J:   Yes.

MS WEBB: Your Honours, if I could explain why, in any event, this particular point has no prospect of success, in our submission. Even if notices of acquisition issue and even if you assume native title exists, section 46 will operate, in our submission, to result in valid acquisitions, whether or not native title is extinguished. Either it will operate in its terms if native title is extinguished and section 24MD(2) applies, or, if it is not an acquisition that falls within section 24MD(2) of the Native Title Act, it would be read down.  So that what is vested in the Territory is subject to subsisting native title rights and interests; that is, the non-extinguishment principle that is contemplated by the Native Title Act, and expressly in 24MD(3), will apply.  They are the two scenarios.  It will not result, in our submission, in the invalidity of the notices of acquisition.

This was the approach that was suggested by the Court of Appeal, and it is clearly correct, if you look at section 59 of the Interpretation Act, which statutorily adopts the approach of reading down, where possible, an Act to ensure its validity. Section 59 of the Interpretation Act (NT) is in the same terms as section 15A of the Acts Interpretation Act (Cth).  In Chu Kheng Lim (1992) 176 CLR 1 at 14, Chief Justice Mason explained that the principle of reading down to ensure constitutional validity in the context of section 109 inconsistency has found expression in section 15A. The same principle would apply in relation to repugnancy between the Lands Acquisition Act (NT) and the Native Title Act (Cth). That is why we say, either way, there is no prospect of success, but in any event it is premature on this point. So there is no question of interpretation of the Native Title Act that presently arises.

HAYNE J:   Yes.

MS WEBB: Your Honour, can I move to the question of purpose. This challenge to the Minister’s exercise of powers is about purpose, and it turns on the construction of section 43 of the Lands Acquisition Act.  It provides:

the Minister may acquire land under this Act for any purpose whatsoever –

In the applicant’s statement of special leave questions at application book 219 we have the statement of the special leave questions.  The first question, whilst it does hinge on purpose, overstates the purpose of the proposed acquisitions in this case.  It refers to the purpose of extinguishing native title, and that is not the purpose of the proposed acquisitions, although it may be an effect.  The ultimate purpose of the acquisitions is to enable the Territory to validly alienate Crown land in the manner that is stated in the notices of proposed acquisition.

Alienation of Crown land is one of the businesses of government.  It is a legitimate Territory purpose, and doubtless the grant of Crown leases to enable particular uses to be made of land relates to a proposed use of the land.  The background to the proposed acquisitions is set out in Justice Mildren’s reasons at application book 185 to 187.  Two of the proposed acquisitions followed applications under the Crown Lands Act to purchase Crown land in respect of which the particular applicant had previously held either grazing licences or leases for grazing purposes.  The third proposed acquisition was consequent upon requests for the release of land in Timber Creek for commercial and/or tourist related purposes. 

The issue is very narrow. In order to determine whether these particular proposed acquisitions are within the limits of power conferred by section 43, it is unnecessary to determine the outer limits of a power to acquire land for “any purpose whatsoever”. That was acknowledged by the Court of Appeal at application book 202 and 203. Whatever the outer limits of the power, these particular acquisitions are for a legitimate Territory purpose or governmental purpose, however phrased, and in relation to a need for or the proposed use of the land.

There are well-established principles for determining whether an exercise of Executive power is valid, which the Court of Appeal applied in this case.  There are three distinct bases upon which an exercise of Executive power may be attacked, and they are set out in the decision of Justice Aickin in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232 to 233. This passage is found at application book 201 in the reasons of Justice Mildren. The issue is not whether there is a corrupt purpose, nor whether there is “ultra vires in the narrow sense”. The only question was one of improper purpose, whether the purposes for which the lots are proposed to be acquired are outside the scope and purpose of the Lands Acquisition Act.  And the answer to that relies only upon an interpretation of the Lands Acquisition Act; no question of interpretation of the Native Title Act arises.

Now, the Court of Appeal ruled that there is no reason why it would be necessarily beyond the purposes of the Lands Acquisition Act for the Territory to acquire the interests of A in order to confer a wider interest on B.  In the context of the applicant’s argument for acquiring interests in A to confer interests on B free of the interests of A, by “wider” the court may have meant no more than “different”.

The particular section of the Lands Acquisition Act that the applicants rely upon to support their argument that the statutory power of compulsory acquisition does not extend to acquisition for the purpose of disposal under the Crown Lands Act is section 48.  For the reasons that we have given in our summary of argument at application book 233, paragraph 3.9, this section has no bearing on the argument before the Court.  What we say that provision does is simply permit the management of acquired land where the purpose originally stated in the notices of proposal is not intended to be proceeded with; there could be many reasons for that.  The provision ensures against impugning acquisition in these circumstances.  The Court of Appeal adopted a similar approach at application book 194.

As to the principles of the power that are particular to the power of compulsory acquisition, the applicants rely upon the Clunies-Ross principle, that the relevant purpose must relate to a need for or proposed use of the land to be acquired.  Justices Mildren and Riley distinguish Clunies‑Ross from the present case, but Chief Justice Martin did apply that Clunies-Ross test, which, he considered, accorded with the view of Chief Justice Dixon in Attorney‑General of the Commonwealth v Schmidt (1961) 105 CLR 361 at 372. The full extract is set out in the application book at 181 to 182.

His Honour the Chief Justice found that the test imposed by Clunies‑Ross, that is, that there be a purpose of acquisition related to the need for or proposed use of the land, was satisfied by the purposes of the proposed acquisitions in this case.  The applicants appear to propose a dual test in respect of the powers of compulsory acquisition.  They say there must be a relevant purpose to relate to the need for or proposed use of the land, and the acquisition must be for government purposes, and they cite no authority.

HAYNE J:   Yes.  Now, I see your time has expired.

MS WEBB:   Yes, sorry, your Honour.

HAYNE J:   Thank you, Ms Webb.

MS WEBB:   Thank you.

HAYNE J:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, I only want to address on the prematurity point.

HAYNE J:   Well, what are we to do about this pending Federal Court proceeding, and what are we to do with this proposal that this application should stand over pending a determination of whether there are native title rights and interests in this land?

MR GAGELER:   Yes.  Your Honour ought not accede to that argument for this reason.  The prematurity point, as has been pointed out by my learned friend, was not taken in the Court of Appeal, nor was it taken before the trial judge, who made the orders at page 160 of the application book, which we seek to have restored.  Now, it was not taken obviously ‑ ‑ ‑

HAYNE J:   Understanding the power of those points, why would we divide what is ultimately litigation about the effect on native title rights and interests if there are none?

MR GAGELER:   Well, two reasons, your Honour.  One is, although there is no precise evidence of this before the Court, your Honours could appreciate you are not concerned with isolated exercises of governmental power.  One is concerned with a practice of the Northern Territory Government.  That is point one.  Point two is that the proposed notices assume the existence of native title.  Unless native title exists, they serve no purpose.

HAYNE J:   Just so.

MR GAGELER:   Just so.  But, your Honour, think back 15 years to Mabo (No 1) and Mabo (No 2).  You might remember the Queensland Act ‑ ‑ ‑

HAYNE J:   Yes.

MR GAGELER:    ‑ ‑ ‑ purported to extinguish native title interests.  It is like saying, “Well, let’s have Mabo (No 2) before we have Mabo (No 1)”.

HAYNE J:   But where is this Federal Court litigation up to?  How far off are we?

MR GAGELER:   Final addresses.

HAYNE J:   Therefore we are going to have an answer within a limited period of time, one should assume.

MR GAGELER:   Well, we will have an answer from the trial judge, yes.  But, your Honour, it does not change the point of principle in this case, nor does it change the question of the validity of the notices.  It really does not.  The notices either do something, and if they do it, then they are invalid ‑ ‑ ‑

HAYNE J:   If the Federal Court were to hold that there were no native title rights and interests, would not this litigation then become academic as between the parties concerning the particular notices in issue?

MR GAGELER:   Yes, I would have to accept that, yes.  Similarly, your Honour, it is just like Mabo (No 1).  The point would have been academic if Mabo (No 2) had been decided first and been decided differently.  But the point of the validity of the notices really is not an academic point in any realistic sense.

CALLINAN J:   Mr Gageler, you could understand why the Territory would frame notices very, very widely ‑ ‑ ‑

MR GAGELER:   Yes.

CALLINAN J:    ‑ ‑ ‑ in order to capture native title in case it exists, because it just does not know.

MR GAGELER:   No, no.  I am talking about a practice of going to vacant Crown land, your Honour.

CALLINAN J:   Well, that is in a sense coincidental, that it is Crown land.  It could apply to any land.

MR GAGELER:   Well, that is the not the practice I am talking about, your Honour.

CALLINAN J:   But it could.  I was the only one who did, I think, but I touched on this in Ward.  One of the points there was the effect of similar legislation, acquisition legislation, in Western Australia.

MR GAGELER:   Well, your Honour, it may well happen that the Northern Territory goes around acquiring freehold land for the purpose of allowing someone else to run a goat farm on it.  It may happen, but we are not aware of it.  May it please your Honours.

HAYNE J:   By this application for special leave the applicants seek to agitate a question about the ambit of the power conferred by the Lands Acquisition Act 1978 (NT) to acquire land for any purpose whatsoever and a question about whether there is an intersection of that Act and the Native Title Act 1993 (Cth) such as would lead to the conclusion that the Lands Acquisition Act should be read down in relevant respects.

The second of these questions is affected by litigation now pending in the Federal Court of Australia in which it will be necessary to decide whether there are native title rights and interests in the land which is the subject of proposed acquisition.

We express no view on whether leave should be granted in this matter.  Rather, the determination of this application for special leave should await the fate of the litigation in the Federal Court of Australia, that litigation having reached the stage, we are informed, of final addresses.

Subject to anything that counsel may say about the form the order should take we would propose to order:

1.        That the application for special leave to appeal is adjourned to a date to be fixed;

2.        Either party should have liberty to apply to restore the matter to the list on giving seven days notice in writing to the opposite party and either party should have general liberty to apply;

3.        We would reserve the costs.

Would counsel seek to be heard as to the form of those orders?

MR GAGELER:   Yes, your Honour.  I have said everything I wish to say on the merits of the application for special leave.

HAYNE J:   I understand that.

MR GAGELER:   If your Honours were to treat the matter as part heard before your Honours and simply to allow a note to be provided of the outcome of the Federal Court proceedings, either native title or not, it would be perhaps less wasteful of the Court’s time.

HAYNE J:   The reservation of liberty to restore was not with an immediate view to restoring it for further argument.  It was to give simply maximum flexibility about the course that might have to be taken if events took some course which could not now be expected.

MR GAGELER:   Yes.

HAYNE J:   For the moment I speak only for myself when I say that I would not anticipate either any need or it being appropriate to hear further argument on the issues, but you never know, Mr Gageler.

Do you wish to be heard, Ms Webb?

MS WEBB:   No, your Honour.

HAYNE J:   Then there will be orders in those terms.

AT 10.18 AM THE MATTER WAS CONCLUDED