Herald & Weekly Times Ltd & Ors v Magistrates Court of Vic & Ors

[2001] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth  No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

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

Second Respondents

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondent

Office of the Registry
  Perth   No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

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

Second Respondents

Office of the Registry
  Perth  No P63 of 2000

B e t w e e n -

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

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Fourth Respondents

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

ON BEHALF OF THE BALANGARRA PEOPLES

Fifth Respondents

Office of the Registry
  Perth  No P67 of 2000

B e t w e e n -

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

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

Second Respondents

THE ATTORNEY‑GENERAL OF THE NORTHERN TERRITORY

Third Respondent

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

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

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

Seventh Respondents

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

Eighth Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 MARCH 2001, AT 10.22 AM

(Continued from 14/3/01)

Copyright in the High Court of Australia

GLEESON CJ:   Just before you begin, Mr McLeod, as counsel will see from the document that has been distributed, we propose to extend the time allotted to the Commonwealth and to the Pastoralists and Graziers and to abridge the times for reply – this will not affect you, Mr McLeod – and make some consequential directions:

(a)  permitting parties entitled to reply to supplement their replies in writing within seven days of the conclusion of the hearing;

(b)  requiring parties contending for extinguishment to file and serve within seven days of the conclusion of the hearing:

(i)  a list of each piece of land affected;

(ii)  a list of the extinguishing act relied on (or if more than one) each extinguishing act together with necessary references to the parties’ submissions, the book of materials, book of legislation and the transcript of argument; and

(c)  requiring parties contending to the contrary to file and serve within a further seven days, an answer dealing, in summary form, with each of the above items, again with necessary reference to the parties’ submissions, book of materials, book of legislation and transcript of argument.

The abridged times are as set out in the document.  As I say, that does not affect you, Mr McLeod.  Yes.

MR McLEOD:   We accept the reality, your Honours, that this Court, after grappling with the really substantial issues that have been aired in the appeal to date, is going to have great difficulty in making determinations on the interests that affect the seventh respondents.

KIRBY J:   It is not the difficulty, I think; it is the question of whether it is the appropriate role of this Court.

MR McLEOD:   Yes, I understand that, your Honour, and I was going to say that in those circumstances we accept that there is realistically likely to be a referral in the event that other issues are decided by this Court in a way that leaves those matters of individual interests still relevant.

GLEESON CJ:   Snap.

MR McLEOD:   We would hope, of course, your Honours, that the interests of the large corporate clients that have been aired here will not be treated in any way differently than the interests of the smaller respondents that are involved in the seventh respondent group.  It is going to be very difficult for any kind of distinction of that kind to be explained to the seventh respondents, who have their life’s interests intimately tied up in the issues in this case.  We would suggest to the Court that the Court can leave aside from detailed consideration the arguments set out in paragraphs 22 to 38 of the submissions on the notice of contention, that is the second set of submissions in the outline.

GLEESON CJ:   Could you repeat those numbers again, Mr McLeod?

MR McLEOD:   Yes, your Honour, 22 to 38, because they are particularly concerned with those matters that I have mentioned.  Also paragraphs 49 to 56 inclusive.

GLEESON CJ:   Thank you.

MR McLEOD:   To some extent those paragraphs, or certainly the other paragraphs, remain relevant to the extent that we would still ask the Court to give direction in principle as to how a Court should discharge the duty imposed by section 225(d) to state the relationship between the rights and interests under native title and other rights and interests.

Just to clarify the difference in the approach that has been adopted by Justice Lee and the Full Court in that regard, the Court will see that at 159 ALR 640, paragraph (5), Justice Lee stated the relationship in this way:

The relationship between the “native title rights and interests” described in para (3) and the “other interests” described in para (4) is as follows:

“‘The native title rights and interests’ described in para (3) hereof and the ‘other interests’ described in para (4) hereof are concurrent rights and interests in relation to that part of the ‘determination area’ to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown . . . the exercise of some of those concurrent rights.”

Including native title rights and interests may be regulated, controlled, curtailed, restricted, suspended or postponed.  That, we would submit to your Honours, give very little indication as to how the relationship is to be worked out on the ground, so to speak, between the claims of native title rights and the other interests.  The Full Court, we say, was better in that regard.  At appeal book 4, page 807 in paragraph 8, the Full Court dealt with the relationship issue in this way.  They said:

To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights.

That does give some indication as to what is to occur.  It says in, I suppose, simple terms that where rights and interests are on a collision course, then one particular party must yield. 

KIRBY J:   What paragraph of the Full Court’s decision is that? 

MR McLEOD:   I am sorry, your Honour, it is paragraph (5). 

GLEESON CJ:   It is under the heading “draft determination” which immediately follows paragraph [679]. 

MR McLEOD:   Yes.

KIRBY J:   Yes, I have it, thank you very much.  It is on page 324 of the report. 

MR McLEOD:   We are not confident that even that more specific direction is going to enable the interface between the rights and interests to be worked out in detail but ‑ ‑ ‑

GLEESON CJ:   Could you give just the best single practical example of the problem that you have in mind? 

MR McLEOD:   Yes.  There are two of the seventh respondent parties who operate crushing plants within the claim area.  They take local rock and crush it to produce gravel for road bases and such like.  That is, in many ways, a dangerous enterprise; there is very large machinery operating, there are large vehicles moving to and fro on the site.  If there was a ‑ ‑ ‑

KIRBY J:   What is their interest?  What is their legal interest? 

MR McLEOD:   Their legal interest is in the form of a general purpose lease in one case, under the Mining Act, and a licence under the Land Act in the other case. 

Now, if the native title rights over the relevant lands are not extinguished and the holders of native title sought to enjoy the right of access, the right to restrict others in that area, the right to camp in that area, to occupy, that is to say, then there would be a clear collision course set.  It is necessary for the business proprietor to know from day to day what the full extent of his rights are and how they are to be worked out in the case of a conflict.

So we would urge this Court to, at the very least, adopt the approach of the Full Court in that regard, but it would, of course, be desirable and welcomed by the seventh respondents if even greater specificity could be given, some direction could be given to the Court which is going to determine that particular matter.

GLEESON CJ:   When you say how they are to be worked out in the case of conflict, is there some provision in the statue, that is to say the Native Title Act, for working it out, and who is going to work it out?  I just want to understand what you mean by the expression “working it out.”

MR McLEOD:   What I mean, your Honour, is the definition of the ‑ ‑ ‑

GLEESON CJ:   Presumably your client and the group Aboriginal people are not going to stand there each with a copy of the Native Title Act in their hands stamping their feet and arguing.  Presumably, in the event that they cannot agree on something, somebody is going to have to, to use your expression, “work it out”; and I was simply inquiring of you what is the procedure for resolving conflict of that kind.

MR McLEOD:   I am not aware of any procedure, your Honour, other than through the ordinary court processes.

KIRBY J:   Is there no liberty to apply?  I mean, we have been told about the power of modification of a determination, but one would have hoped that there could be a means of liberty to apply to clarify specific aspects of determination that get down to the question of water skiers and rock crushers.  I mean, it is really unrealistic to ask this Court to get into that area of specificity and I think you accept that, but there must be a mechanism - there must be a mechanism - and I can fully understand the concerns of your clients.

MR McLEOD:   Well, there is, of course, the possibility that the Court, making the determination, could give liberty to apply.  I suppose that is a possibility.  But even that, your Honour, given that it be a liberty to apply to the Federal Court is going to involve a degree of difficulty that really ought not to be imposed on parties who are trying to establish some kind of reconciliation, as the Act seems to propose.

McHUGH J:   It would have to be a limited form of liberty to apply, because the Federal Court is exercising the judicial power of the Commonwealth.  It cannot legislate, it cannot be making up new rights as it goes along.

MR McLEOD:   Yes.

GLEESON CJ:   What is the meaning of the concept of a concurrent right in, (a), to occupy land; and in, (b), to conduct a rock‑crushing operation on the land?  What does it mean to say those two people have concurrent rights?

MR McLEOD:   I am sorry, your Honour, I cannot begin to guess what it means and that was one of the problems with that particular determination by Justice Lee.  As I said, the Full Court’s solution was much to be preferred, but we would hope that the matter could go further and would ask this Court, to the extent that it can, to give direction to the court below as to the form of determination it should make under section 225(d) in order to give as much guidance as possible to the parties as to how to work out the relationship without having to resort back to the court system.

KIRBY J:   The Native Title Tribunal has no jurisdiction in such matters because it would not be under the same restraints as Justice McHugh mentioned in respect of a court exercising judicial power of the Commonwealth.

MR McLEOD:   No, but ‑ ‑ ‑

KIRBY J:   Is there access to the Native Title Tribunal in such cases?

MR McLEOD:   I cannot give an immediate response to that, your Honour.  My guess is that it does not because I understand that the Tribunal’s function is completed once it has endeavoured to bring the parties together prior to the commencement of litigation.  I do not know if there is any mechanism to bring the Tribunal back into play in these circumstances.

KIRBY J:   I mean the point you raise is as important for Aboriginal Australians as it is for non-Aboriginal Australians; they are both entitled to know where they stand and have it clarified quickly and economically.

MR McLEOD:   Quite, your Honour.

CALLINAN J:   It is undesirable, you say, that parties have to go off to seek declarations or injunctions in order to ascertain their rights or enforce their rights.

MR McLEOD:   As we perceive the matter, that is the way it stands as a possible necessity.  One would hope that people will be able to work things out in a sensible way, but one way of ensuring they can is to give them as much enough guidance as possible in the first place.

CALLINAN J:   Can you tell me, what is the area of your lease for the extraction of gravel and ‑ ‑ ‑

MR McLEOD:   The crushing plant interests, your Honour; the Guerinoni Crushing Plant is ‑ ‑ ‑

CALLINAN J:   About approximately how much land is covered?

MR McLEOD:   Perhaps two hectares, your Honour.

CALLINAN J:   And is there a licence to use a road or designated track into the site or is it part of the lease?

MR McLEOD:   As I understand the matter, there is, your Honour.  Yes, one of the sites is directly below the diversion dam wall and there is a network of tracks in that area which are used by the vehicles operating the plant.

CALLINAN J:   But perhaps your junior could find and enable you to give us a reference to any map which shows that lease and the area of the licence.  Do not trouble about it now, but it is ‑ ‑ ‑

MR McLEOD:   I can tell your Honour where to find it.  If you have a look in the appendices, which I referred to yesterday; in Appendix 2 there is a master map and four enlargements.  The Guerinoni Crushing Plant, your Honour, is on enlargement 2 at co-ordinates A3.  You will see in orange print the words “Reserve 29277 Guerinoni Crushing Plant” directly below the diversion dam wall, in what appears on that map to be the previous bed of the Ord River.

CALLINAN J:   Is that the hatched area, is it, immediately above the No 28 or is it the area to the right of the ‑ ‑ ‑

MR McLEOD:   It is slightly below the green No 10, your Honour; that is where the arrow indicates.

CALLINAN J:   Yes.  And it is a small orange rectangle?

MR McLEOD:   That is so, your Honour.  The other is at co-ordinates A3 again, but higher up, near the number 95J or directly above the word “Crown” for Crown land.  It is, I think, G80/5 Woodhead .

CALLINAN J:   And that is the dam wall, is it, immediately to the west?

MR McLEOD:   No, your Honour, that is the highway reservation; the dam is in the line of the riverbed; you will see Lake Kununurra and then above that, Ord River.

CALLINAN J:   Your submission really is that the operation of a quarry and associated crushing plant is wholly incompatible with any native title rights, is that so?

MR McLEOD:   That was one of our submissions, yes, your Honour.

CALLINAN J:   Because of the nature of the activity, the dangerous implications as well as the relatively small area that is involved, is that so?

MR McLEOD:   Yes, your Honour, that is one of the issues that was dealt with in those paragraphs that I have indicated that we do not press your Honours to ‑ ‑ ‑

KIRBY J:   Is Alligator Airways’ interest in respect of a landing strip or something like that?  You certainly could not have people making a claim on that.

MR McLEOD:   No, it operates with float planes, your Honour.  Its interest is in relation to a jetty.  Now, while you are still looking at that enlargement sheet, if you look at co‑ordinate B3 – well, in between 3 and 4 – you will see, “Pt RES 44813”, I think it is – I am sorry, I cannot read it very ‑ ‑ ‑

KIRBY J:   2.

MR McLEOD:  

Warraminga Pty Ltd Kona Caravan Park; also Alligator Airways Pty Ltd jetty (indicative) –

That gives an approximate but reasonably accurate indication of where the jetty for the float aircraft is located, so that aircraft take off and land on Lake Kununurra and passengers are taken to the aircraft and taken off the aircraft, via the jetty, at that point.

CALLINAN J:   This is the main map for your clients’ interests.  It shows all of your clients’ interests and we can see exactly what activities they conduct from the other material in your submission.

MR McLEOD:   That is so, your Honour.  That is the map which contains most of the interests of the seventh respondents but each of the maps, including the enlargement, show other interests and the enlargement is relevant to show two interests which might not be easily – I am sorry, not the enlargement, the general map, that shows the Vuk interest in the area, the pink area with the blue hatching on the first of the maps.  At about co‑ordinate C3 you will see the notation, once again in orange print, “Vuk M 80/175” and “M 80/227”.  That is a zebra rock mining operation adjacent to Lake Argyle and there is another interest at co‑ordinates B3½, “M 80/185 Read & Hackett”.  They have a zebra rock mine on an island in Lake Argyle.  The other interests can be found in the same way on other enlargements.

Your Honour Justice Gaudron yesterday requested details of the written law basis for the seventh respondents’ interest.  Now, your Honour, we have responded to that by providing a minute of amendment to: (1) seventh respondents’ revised submissions in support of notice of contention, and (2) appendices to submissions, which gives a guidance to amending the existing papers so as to take account of your Honour’s requirements.

GAUDRON J:   Thank you.

MR McLEOD:   I would rather avoid taking up the precious time that is left to me by going through those details, but I hope that the way we set them out will enable you to find the sources that you were interested in.

GAUDRON J:   Thank you.

MR McLEOD:   I want to move away from the section 225(d) issue, and go back to what, really, for the seventh respondents, is the issue of main concern.  That is the question of ground 10 of the appeal, which deals with the Ord Project extinguishment question.  As I mentioned yesterday, practically all of the seventh respondents have their interest located within the Ord Project Area, and the Full Court’s determination on Ord Project extinguishment resolved for practically all of the seventh respondents the problems that the interface of rights would otherwise have produced.

I should mention the appellants have purported to include the whole Ord Project in grounds 1 to 5 of the appeal on the basis the alleged errors of general principle infected the majority’s consideration of the Ord Project.  Now, we say that that is not legitimate.  The Ord Project was only brought in through ground 10 or not at all.  That is something that Mr Pullin addressed on at length, and we adopt the State’s submissions in that regard.

These respondents, the impact of the claim over the area where they have their homes and focus their assets and their businesses in many cases since the 1960s and 1970s is a matter of special and immediate concern.  Ground 10 your Honours will have noted from Mr Pullin’s submissions is the remnant of draft ground 17 and your Honours had initially in the application for special leave not been inclined to grant special leave for ground 17 which raised the question of Ord Project extinguishment.

Mr Sofronoff persuaded your Honours to leave in paragraph (e), which referred to the land:

held for future expansion, as a buffer zone, for drainage and for protection against erosion and flooding -

and I will refer in my remarks to those four broad purposes as “buffer lands.”

On the face of it, there may have been an impression that the buffer lands would include only the sparsely used lands at the periphery of project area.  Wanting to be clear as to what the appellants thought the buffer lands included, particulars were sought and they were provided.  Particulars were filed on the 9 November 2000; were amended by two documents called “Notices of Clarification” dated respectively 27 February 2001 and 1 March 2001.

Now, there are two pages of areas in five categories covered by the particulars relating to ground 10.  They can be seen in the particulars.  I am not going to take up time by referring your Honours at this moment to those particulars, but to give you a grasp of how extensive they are, if your Honours were to look again at the maps in Appendix 2 and note the pink areas in those maps, and if you understand that with the exception of the areas permanently inundated by water, that is to say principally Lake Kununurra and Lake Argyle, if you take all of those pink areas, that essentially is what is being particularised as the buffer lands.  For all intents and purposes it is practically everything that is not fee simple within the claim area.

GLEESON CJ:   Just a minute, you mean those particularised buffer land – that crushing site you have told us about? 

MR McLEOD:   Yes, your Honour.  Those matters are dealt with in some detail in the State’s application to revoke leave to appeal in regard to ground 10.  That application is dated 19 October 2000.  Once again, I will not take time by taking your Honours to that.  The State’s submissions have the same date.  The submissions emphasise the extreme difficulty, in the context of this appeal, of ascertaining land falling within the scope of the Full Court’s finding attacked in ground 10.  I do know more now than to adopt the State’s submissions in that regard. 

There is a small matter, but one which I think is important to provide the necessary factual matrix against which the Court is going to have to make its decisions in this case, to have a clear understanding of the relationship between the Ord Project Area and the Ord Irrigation District.  As it happens, I have not been able to find any map, in all of the papers, which actually, clearly, explains that relationship.

If you look at volume 4 of the book of materials, page 764, the Wilkin Report, which clearly was relied upon by the Full Court in its reasons, we will see at paragraph 2 there is a reference to the Ord catchment as 46,000 square kilometres – and the figure of 17,800 square miles is also given, it is relevant – and in the next paragraph it is stated that “It is a large river in the Australian context”.  At paragraph 6.4 on page 774, you will note that it is stated, in the last three lines in that paragraph: 

The whole of the catchment area was included in the Ord Irrigation District in 1973 to allow control of activities which could be detrimental to the Project. 

That is, the Ord River Project.  Then, if you go to figure 11 in that same volume, volume 4 of the book of the materials, on page 831, you see a marking out of the Ord Irrigation District, that is the area outlined in yellow is the 46,000 square kilometres of the Ord River catchment. 

If you have a look at the areas marked green and red at the top, the area marked red is the 1962 irrigation district – and that covers the area essentially around the Lake Kununurra and the Kununurra town site – and the area in green above that is the 1965, I think it was, extension of the Ord Irrigation District, extending the irrigation area to the north, an area which to the present time remains relatively undeveloped.  But then there is no indication on here of what the full extent of the Ord Project is. 

We have endeavoured to enable your Honours to have some idea of what that amounts to by doing an overlay of the total Ord Project Area, on figure 11. You will find that attached to the seventh respondents’ submissions as to Part 2B of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995, that was filed on 13 March 2001. There is no reason for that document to remain attached to those submissions, it can be detached. You can see there that the Ord Irrigation Area is outlined in a continuous black line, and the Ord Project Area is outlined in a broken black line. The Ord Irrigation District is the 46,000 square kilometre area; the Ord Project Area – and I will explain to your Honours how I get these calculations – is 5,105 square kilometres, approximately one‑ninth of the total irrigation district.

The way in which you get that figure, just very briefly, your Honours, is from the details in the Full Court’s reasons below, paragraph [13] of their reasons, they gave the area of the Argyle Downs station acquired in 1971 as approximately 4,000 square kilometres.  But if you add up the total of acquisitions of land in paragraph [411] – and I just mention this without taking up time by taking your Honours through the exercise – the Full Court in its reasons set out the total of land acquisitions for the Ord Project.  If you convert the acres and hectares in that paragraph – and I have done the exercise – the total area is 5,105.8 square kilometres; 1,000 acres converts roughly to four square kilometres.

Your Honours were referred yesterday to the maximum flood area of the supply dam.  That appears at figure 3 of volume 4 of the book of materials.  I will not take your Honours back to that, but it suffices to say that when the Ord is in full flood, the area of the supply dam extends very substantially in Reserve 31165 and covers the greater part of that reserve located on the south‑western side of the project area.  It is the project area, that 5,000‑odd square kilometres, that the Full Court was speaking of when it referred to the Ord Project at volume 4 of the appeal book at paragraph [410] where it is said at lines 32 to 42:

practically the entire area that has been developed is linked and criss‑crossed with irrigation supply channels and drains such that the Ord Project can in a practical sense be regarded as a “living, breathing entity, protected from heavy external natural runoff by levies and hillside drains, with water distributed by a precise combination of gravity and pumping and drained back into the Ord and Keep River Systems by means of artificial drainage linking up with natural drainage patterns”.  And while “the Project harnesses, to some extent, the natural topography and forces of nature, nevertheless there is a fundamental imposition of a completely new order onto the landscape . . . involving precision engineering solutions applied on a very large scale”.

In line 23 the Full Court refers to the Ord River catchment area as “the 17,800 square mile Ord River catchment area”.  Your Honours will recall that Mr Wilkin indicated the area of 17,800 square miles converts to 46,000 square kilometres.  What they are referring to there is in fact the irrigation district and certainly not the project area.  So that is the relationship.

In paragraph [409] the Ord River catchment area is referred to by the Full Court as the 1973 extension of the Ord Irrigation District.  So when, in paragraph [410], the majority below referred to the Ord Project as imposing “a completely new order onto the landscape”, that was the project area they were referring to which is the pulsating heart, if you like, of the irrigation district.  I need to take your Honours back to the appendices, to the table of contemporary activities.  It is part of Appendix 2.  I am sorry the pages are unnumbered but the page I am referring to follows immediately after enlargement 4.

What we have set out there is a schedule of the activities of parties related to the native title claimants within the project area. This has been gleaned from the evidence given in the case and so far as our endeavours have been able to achieve it, details every instance of contact with the claimed land. Just to give you an indication of how it works, if you take item 5, say, on the schedule, under the heading “Location No. on Overlay Map”, take No 5, it refers to:

Sheba Dilyngarriya collected bush tucker while living at the Reserve - only in close proximity to the reserve;  Nancy Dilyayi - Mundy Moore caught goannas at Mirima Reserve in the early days of Kununurra -

Then if you go to overlay map enlargement 2 and overlay the transparent sheet over the enlargement map, pick up No 5, that gives the location where those activities occurred. That is the large dot around about co‑ordinates B3. There are other examples and I do not know that it is necessary for me to take your Honours through the other examples. That is how this table works. Now, that is a complete indication of the evidence of contact of the claimants with the claim area and it covers the period from 1965 to the date of the hearing, which was 1997.

HAYNE J:   Now, you were about to turn away from that subject matter, Mr McLeod, are you?  I want to take you back to a problem on which I seek submissions about the 225(d) issue that you began with because it may – it may not – reveal a difficulty of quite some importance.     Can I take you back to 225(d).  The form of determination that we have, both at trial and in the Full Court is to be understood having regard to the obligation of the Court to identify in (c):

the nature and extent of any other interests in relation to the determination area; and –

(d) to identify “the relationship between the” native title “rights and interests” and other interests, is that so?

MR McLEOD:   Yes, your Honour.

HAYNE J:   If we go to the Full Court determination which is reproduced in various places, the one I had in front of me is 834 of the appeal book, but what I am referring is paragraphs 6, 7, 8 and 9 of the determination, not the schedules, but the determination.  Paragraph 6 identifies “The nature and extent of other interests” and does so by reference to the Third Schedule.  Do you have it?  Not yet.

MR McLEOD:   Yes, thank you, your Honour.

HAYNE J:   Yes.  So 6 identifies other interests by reference to Third Schedule, that is interests, for example, of lessees under various leases, licensees, et cetera.  Paragraph 8 then is presumably directed to the 225(d) obligation to state the relationship between the two sets of rights.  Paragraph 8 is to be read in the light of 9 which says that “The native title rights and interests  . . . are not exclusive”.  But the point to which I want to direct attention is that 8 is premised upon “inconsistency”, assumedly inconsistency of rights, since 225 obliges the Court to identify both native title rights and interests and other interests by which one assumes an identification of rights.  If 8 is premised upon inconsistency and if further - this is a large question - the test for extinguishment is inconsistency of incidents, then there seems to be some difficulty lying at the core of the determination, difficulty of a kind that may be exemplified by the reference to the quarry rock crushing plant, the operator who has a right under it, you say, to extract rock, run trucks, et cetera, to the great danger of everyone.  But the point to which I draw attention is that if 8 is premised on inconsistency, what, if anything, is that saying about the possibility of co‑existence of the two sets of rights?

MR McLEOD:   It would only be those interests which were not sufficiently inconsistent to extinguish native title or which for some other reason were inconsistent but were not capable of extinguishing native title that would be the subject of that paragraph.

GUMMOW J:   You say, do you, that is an insufficient indication of relationship?  Is that not bound up with your complaint?

MR McLEOD:   I would agree with his Honour Justice Hayne to the extent that a greater specificity would have been desirable and I can also appreciate that it does involve the conceptual difficulty that Justice Hayne was referring to.  But as I read the paragraph, the inconsistency that has been referred to there is an inconsistency which would be considered, not to have been so significant as to extinguish native title.  Otherwise, it would not have been an interest that is recorded in the Third Schedule, but otherwise would have been an interest which extinguished native title.

GLEESON CJ:   Is that consistent with the opening words of section 225?  First you have got to determine “whether or not native title exists” and it is only if it exists that you then make these other determinations.  “If and to the extent to which it has been extinguished”, it does not exist.

MR McLEOD:   Yes.

GLEESON CJ:   Is that the way it seems to work?

MR McLEOD:   That would seem to be a proper reading of it, your Honour.

HAYNE J:   But can co-existence depend upon possible inconsistency?  That is the underlying question to which I direct attention.  Can the rights co-exist if it is accepted that there can be inconsistency?  I do not know.  It is that issue to which I want to direct your attention.

GLEESON CJ:   This may or may not assist your answer to that question, I do not know, Mr McLeod, but that language about “yielding” seems to come from the postscript to the judgment of Justice Toohey in Wik 187 CLR at 133. I would guess that is where the concept was taken from, but maybe that just restates the problem.

MR McLEOD:   I should say, referring back to the question by Justice Hayne, your Honour, our primary argument was that where there was an inconsistency between the rights and interests of the seventh respondents conferred under the statute and the native title rights and interests - our main submission was that there was an extinguishment.  The other submissions we make only apply to the extent that that is not successful.  I do not know that I can assist your Honours any further on the section 225.

GLEESON CJ:   Just before you pass away from that question about the meaning of the determination, am I right in thinking that paragraphs 6, 8 and 9 – I have not checked this – do not apply to anything in the Ord Project Area, because they had held already that native title was completely extinguished within the Ord Project Area.  Is my assumption right?

MR McLEOD:   Yes, that would have to be a correct conclusion, your Honour.

GLEESON CJ:   So whatever these paragraphs mean exactly, they are only talking about land outside the Ord Project Area?

MR McLEOD:   That is so, your Honour.

GLEESON CJ:   Like the mudflats; the intertidal area, for example.

MR McLEOD:   Yes.

HAYNE J:   Where then is the problem of intersection for your clients?

MR McLEOD:   I might say that the three interests that are referred to in paragraph 7.5 of the seventh respondents submissions on the appeal, those three interests which are outside the project area, they are referred to in the Third Schedule and therefore the subject of those paragraphs, your Honour.

GLEESON CJ:   Right.  Now leaving those three interests to one side, what have your clients got to complain about as to the form of paragraphs 6, 8 and 9 of the determination if, as you say, those paragraphs are not talking about land within the Ord Project Area?

MR McLEOD:   Take one of the interests that is referred to in paragraph 7.5 of the submissions, that was the right of the Harman respondents to pass over Crown land to gain access to their tourist stop.

GLEESON CJ:   To pass over Crown land in the Ord Project Area?

MR McLEOD:   No, outside the – it is in the Noogoora Burr Quarantine Area, so it is within the claim area, your Honour.

GLEESON CJ:   But outside the Ord Project Area?

MR McLEOD:   Outside the Ord Project Area.

GLEESON CJ:   Right.  Well, can we agree on this, that the crushing plant and the native camp do not give rise to a problem about the meaning of paragraphs (6), (8) and (9) of the determination because paragraphs (6), (8) and (9) of the determination do not apply to the crushing plant because it is within the Ord Project Area.

MR McLEOD:   Yes, that is so, your Honour.  The submissions that we made in regard to the form of the determination become more pressing to us if you were to overrule the Full Court’s decision on ground 10 in regard to the Ord Project extinguishment.  In that case, the form the determination becomes a matter of pressing urgency and concern to practically all of the seventh respondents.

GLEESON CJ:   That would assume that we overruled the decision in relation to the Ord Project Area but left the form of the determination otherwise the same.

MR McLEOD:   Yes.  I take your Honours just quickly to one further map.  If your Honours were to look at the map at volume 3 of the book of materials, page 627, you will see that that deals with the irrigation and the drainage works associated with the Ord Project.  You will note that there is a legend approximately in the middle of the right‑hand side of the map which indicates the method of designating irrigation supply channels, irrigation drains, levees, supply points, drainage points and other related features.

You can see that the project area is thoroughly crisscrossed with a series of drains and channels and levees.  If you refer back then to what the majority in the Full Court had to say at paragraphs [407] to [410] ‑ ‑ ‑

GLEESON CJ:   Just before you leave this map, do we see on the north‑eastern part – it does not seem to have any co‑ordinates – what was in an area that includes the words “Cave Spring Gap”, what was described last week in some submissions as a finger pointing into the fourth farm area?

MR McLEOD:   Yes, your Honour.

GLEESON CJ:   The land to the north of that is for future expansion?

MR McLEOD:   Yes, your Honour.  You will see at paragraphs [407] to [410] the majority below referred to the Ord River Irrigation Project and other purposes.  In paragraph [408] they say the project proceeded in three stages.  At line 44 it says:

the works required to irrigate and develop 10,000 hectares of irrigation land (including such things as earthworks to establish contours and gradients for farm units, constructing irrigation channels, drainage channels, stormwater protection drains, and a pumping station) and infrastructure including roads and the town of Kununurra -

were constructed in the first stage.

A drainage system, partly constructed and partly natural was as essential to the Ord Project as the provision of irrigation water to protect farms -

et cetera.  Then there is a further extension of that on page 263 in paragraph [410].  You will see the passage that I quoted earlier at lines 31 to 41 where the court said:

practically the entire area that has been developed is linked and criss‑crossed with irrigation supply channels -

et cetera, et cetera.  I will not read that out again.  But that map gives an indication of what the Full Court below was referring to when it made that reference to the criss-crossing of supply channels and the reference to the fundamental imposition of a completely new order onto the landscape.

Because of the clustering of the seventh respondents’ interests within the project area, as I mentioned, they are particularly concerned to defend the decision of the majority below, that the combination of the acts contributing to the implementation of the Ord Project extinguish native title.  Those findings are found in paragraphs [396] to [443], the final decision at paragraph [452].

We recognise this approach involved the application of common law extinguishment principles, and in our submission on Part 2B at paragraph 3 commencing on page 3, we develop the argument that the statutory extinguishment regime introduced with Part 2B does not exclude prior extinguishment at common law. Now, there is nothing I can say that is going to enlarge on what is said in those written submissions and I just commend those to your Honours to note the way in which we submit that the extinguishment at common law must be applicable in regard to the works for the Ord Project which for all intents and purposes were in place by 1975 and well before 1 January 1994.

Your Honours, I wish to deal with some of the matters that are covered in the outline of submissions.  I take your Honours to paragraph 19 of the first set of submissions, page 9, where we develop the argument that in the case of land reserved or resumed, extinguishment may require use but that is not contrary to the inconsistency of incidents test.  It may seem that one important category of extinguishment identified by Justice Brennan in Mabo [No 2], namely, the Crown appropriation of reserved land may appear to offend against the inconsistency of incidents principle in so far as it expressly requires use.

We say that if you analyse the situation, then that is not really the case.  The ultimate focus of Justice Brennan’s statement at paragraph 5 on pages 69 to 70 of the Commonwealth Law Report was not on use per se but rather on use as signifying appropriation by the Crown of the land in question.  Appropriation of the land meant the coming into existence of rights in the Crown wholly inconsistent with native title.  So it is the clash of rights and not the actual use in itself which results in extinguishment.

In the case of a grant of third party rights such as a grant of freehold, the Crown is granting rights which are inconsistent with native title. Where the Crown is, however, in effect assuming rights to itself, Justice Brennan contemplated that this is generally manifested by the actual carrying out of a public work. We say generally because the effect of the relevant legislation may be that appropriation occurred earlier, as indeed the seventh respondents contend occurred in the present case. The present line of argument is premised on this Court holding, contrary to the seventh respondents’ principal contention, that the Western Australian statutory regime required actual use. That is, under the laws in Western Australia, we are premising these arguments on the assumption that this Court would hold that under the laws in Western Australia, mere resumption under section 109 of the Land Act and mere reservation within the Land Act did not effect extinguishment.

The Crown does not normally make grants to itself in freehold or by lease.  The equivalent therefore in order to signify the assumption of such rights to itself is to take a step which is either purely by executive power or within a framework of Crown land administration legislation.  While carrying out the work itself, that action signifies the Crown’s appropriation of the land.  The carrying out of the work in effect, we submit, is the legitimation; it legitimates the setting aside of the land and signifies appropriation of beneficial ownership.  In order to extinguish native title, any such appropriation and use must exhibit the required degree of inconsistency, otherwise it does not justify the conclusion of a clear and plain intention.  Not every appropriation signified by use will justify a conclusion of extinguishment; it depends on the nature of the use.  So that if there was a creation of a reserve, say, for a nature reserve, we accept that that may not extinguish native title.  That is, I think, quite in accordance with the principles stated by Justice Brennan in Mabo.

But we are dealing here with a major public project.  Generally the implementation of a major public project by the Crown which incorporates components that are integrally interrelated and interdependent and where that public project represents, as in this case the majority below held, the fundamental imposition of a completely new order onto the landscape, that will exhibit the required degree of inconsistency with native title.  Whether a public project constitutes an integrated whole which represents the fundamental imposition of a completely new order upon the landscape is of course in any case going to be a matter of fact.

We recognise that the extinguishing act is the appropriation of land.  This is merely manifested or crystallised upon commencement of use.  It follows there will be extinguishment in respect of all such land as is the subject of the Crown’s clear and plain intention to appropriate because the Crown’s actual use of land merely signifies or manifests the Crown’s clear and plain intention to appropriate.  Native title is not necessarily extinguished only in respect of the land on which physical works or active use occurs.

Identifying the land as subject to the appropriation is a question of fact.  But, generally, the extent of the dedication, reservation, resumption of land which preceded the actual implementation will answer that question.  We say that the majority judges’ approach on this question, in relation to the Ord Project, was correct and unremarkable.  There is a quotation in paragraph 26 of the written submissions from paragraph [410] of the majority’s reasons below, and I have already made reference to that paragraph before.

Buffer land areas, in this case, would readily be seen as an integral part of the land which the Crown has shown a clear and plain intention to assume to itself, notwithstanding they might not be the subject of immediate act of physical use.  Furthermore, the elements of the Ord Project are functionally inseparable, one from another.  The catchment buffers are vital to Lake Argyle.  Levies were vital to Lake Kununurra, and so on.  I should mention, your Honours, that besides the evidence that the Full Court below saw fit to record in its reasons, there is evidence by two key witnesses in relation to the extent of the works in the project area, and I will just make reference to the place in the materials where those witnesses evidence can be found.

There is the witness, McCosker, whose evidence can be found at volume 3 of the book of materials at pages 549 to 577.  Having referred your Honours to those paragraphs, I am not going to take up the few minutes left to me by taking you to any particular passages there.  I simply make reference to those pages as evidence which will help to fill out for your Honours an understanding of the evidence that was before Mr Justice Lee and on appeal to the Full Court in regard to the extent of the works associated with the Ord Project.

I would also like to mention the evidence of Mr McColm, one of the Crosswalk witnesses.  He was the manager of “new” Argyle Downs station which is located in the south-east corner of the project area, part of Reserve 31165, adjoining Lake Argyle.  He gave evidence briefly, and in one paragraph, which I will read out - it is at volume 3 of the book of materials, page 629, and paragraph 7 is in these terms.  He said:

I have been involved with a project to regenerate the Ord river land system.  As part of that project I have been working with Agriculture - WA.  We have introduced “buffel grass”, a hardy type of grass, and have put in some contours to protect fragile land.

Here is a pastoralist who is indicating the work that he has done associated with the Ord Irrigation Project which complements the evidence given by Mr McCosker, as to the work done directly by the Irrigation Authority within the project area.  So we say the elements of the Ord Project probably exhibit a greater degree of integrity than, say, an undeveloped playing field.  If you could imagine the situation where land is set aside by the Crown for a school.  It sets aside 10 hectares for a school and develops buildings, classrooms, and so on, and administration on 2 hectares of the area, but leaves 8 hectares undeveloped for future development for playing fields and that land might remain in its natural state.

We would say that, in those circumstances, it could scarcely be doubted that the undertaking of the building work on the two hectares of the 10 would be sufficient to justify a finding of extinguishment over the whole of the area set aside for the school grounds.  It is not necessary to wait until funds become available for the development of the playing fields to find that native title has been extinguished over that area.  We say that the Ord Project, given the evidence that I have referred to, exhibits a greater degree of integrity than that case. 

In requiring inconsistent use of every portion of land, the appellants’ argument faces not only the practical problems – perhaps even the absurdities of the brick-by-brick extinguishment mentioned by the State in its submissions – more fundamentally, the appellants entirely misconceive the relevance of actual use and parcel-by-parcel extinguishment.  The appellants’ argument, we say, based as it is upon adverse dominion, fails to recognise that actual use is not the extinguishing event, but is merely indicative of the extinguishing event, which is the appropriation of a parcel of land, resulting in rights and interests of the Crown wholly inconsistent with native title.  The parcel may, on the facts of any given case, be very large in area, and not all of it need be the subject of direct physical use, as long as it is the subject of the clear and plain intention to appropriate. 

We develop a related, further argument in paragraph 44 of the outline of submissions.  We say that the decision of the majority below was wholly in accordance with the extinguishment approach mandated in Wik.  That argument is developed in paragraph 44.  That deals with mining leases.  I think, in view of the time that is available, I will say nothing more than to draw your Honours’ attention to those submissions.

Perhaps I should mention, in paragraph 44.13, the point in regard to the lack of actual improvement and development on properties, say that, as a matter of fact, all of the seventh respondents’ mining leases were worked fairly intensively, as deposed to in some detail in the witness statements that were tendered.  The reference is given there to the witness statements in question.  The apparent suggestion to the contrary in the appellants’ revised submissions at paragraph 126 is rejected as being against the evidence. 

Commencing at paragraph 52 of the first outline of submissions, we develop an argument in relation to section 47B, dealing with the question of whether, under section 47B, extinguishment may be disregarded.  This relates to ground 14.  As it happens, the only land of the seventh respondents, so far as we can ascertain, that is affected by ground 14 is the land between the farms and the water bodies which I referred to yesterday

in answer to a question by your Honour the Chief Justice.  That is the three farm groups, the River Farm Road group, adjoining the Ord River to the north; the Packsaddle group, further south and to the west of Lake Kununurra; and the Crossing Falls group, on the eastern side of the river. 

They are the only pieces of land which are affected by ground 14, the section 47B disregarding of extinguishment argument.  If you understand that then, in that case, it is those relevantly narrow strips of land between the farms and the water bodies that are affected, then it is relevant for your Honours to consider the overlays, which I referred to earlier, indicating the degree of activity by the native title claimants and their associated persons within those areas and for all intents and purposes, if you are to refer back to those overlays – and I am not going to ask your Honours in the two minutes remaining to me to do that – you will see that there is little or no evidence of activity in the period 1965 to 1997 in those areas. 

So that one of the important requirements for the operation of section 47B simply would not apply, namely there would be no occupation of those areas by members of the claimant group at the time the application was made.  That is the requirement that arises under section 47B(1)(c).       We also say that the areas are subject to reservation, proclamation, dedication, condition, permission or authority for the reasons which are explained in those paragraphs in paragraph 52.

We adopt the State’s submissions in its supplementary submissions at paragraphs 122 to 127.  The only part of the primary submissions that remains is the submission in regard to costs which speaks for itself and so far as the submissions in regard to the notice of contention is concerned, other than those paragraphs that I mentioned to your Honours earlier, as being paragraphs that your Honours could pass over lightly, the remaining submissions in the outline in relation to the notice of contention still remain relevant.

GLEESON CJ:   Yes, thank you, Mr McLeod.  Yes, Mr Solicitor.

MR BENNETT:   May it please the Court.  Your Honours should have four documents from us:  our principal submissions of 27 February, which have a pale green cover and transparent plastic on top of it; some supplementary submissions dated 13 March, which are white, and which deal with the transitional questions referred to by your Honour the Chief Justice; a set of submissions filed on 14 March, with a green cover, but without transparent plastic, which deal with two other points which arose in argument; and a single page headed “Index to the Commonwealth’s Oral Submissions”, which lists the six points I propose to address the Court on.

I should also tell your Honours, by way of amplification of what was said by my learned friend, Ms Johnson yesterday, and in answer to what your Honour Justice Callinan asked about the Wik Case, that our understanding is that there were subsequently claims filed under the Native Title Act, in relation to similar areas.  Part of the claim has been settled and resulted in the consent determination; the other part is, at present, in mediation, and it is therefore unlikely that there will be a determination of the matter remitted in that case itself, but it remains theoretically possible.

Now, your Honours, dealing first with the transitional provisions and the questions of your Honour the Chief Justice – and that is our white submissions of 13 March – the problem can be generalised in this way.  Where one has a change in the law between trial and appeal, the cases seem to suggest that one starts by saying is it an appeal strictu sensu or is it an appeal by way of rehearing?  If it is by way of rehearing, one can, subject to it being applicable, look at the new law; if not, one does not.

But the situation is actually a little more complex than that.  If one has an appeal strictu sensu, normally of course, one would not take into account a change in the law, one is looking at the law at the date of the trial.  The problem which arises is where the legislation which has intervened is itself retrospective.  Now, there, one has to look a little more closely.  Clearly, if that legislation expressly provides that it shall apply to pending appeals in the Federal Court – I put to one side constitutional questions which might arise in relation to appeals to this Court – then, in our submission, it is clear that the Full Federal Court is duty-bound to apply the new legislation.

five-hectare reserve . . . vested in the Shire.  The reserve was created in response to a request from the Yacht Club for use of an area of land near Lake Argyle.

He says, again:

The reserve is surrounded by vacant Crown land and is near the northern limits of the Lake.  It is an isolated reserve in open bushland.  The area is ‑ ‑ ‑

CALLINAN J:   What was the nature of the vesting?  Do we have the instrument vesting it in the ‑ ‑ ‑

MR BARKER:   I think we do, your Honour.  It is vested under the Land Act for recreation in the Shire.  He then goes on to say:

Clearly, no adverse dominion extinguishing native title has occurred by reason of the creation and use of the reserve.

Again, noting the nature of the terrain one is dealing with here and his Honour’s specific findings about these matters.  I might interpolate, your Honours, to say – and we make this submission later, perhaps, in more detail in writing – but the attack on the use of the expression “adverse dominion” used by Justice Lee is unwarranted because, properly understood, his Honour did not do anything more than adopt an operational inconsistency test.  It was not a superadded test that his Honour adopted.  He was indicating that if there had not been extinguishment, one needed to look to see whether, in fact, a natural use there had been.

If I can then take your Honours to page 607 of his Honour’s judgment at about lines 40 to 45.  This is dealing with the Reserve 36551 and your Honours will see that just to the north of the last reserve that I took you to, 41273, and you will see it is again ochre-coloured reserve running on a north‑south axis.  His Honour deals with that towards the foot of 607, indicating that that:

was created in 1980 and is now vested in the Water and Rivers Commission.

He goes on to explain it is an area of:

800 hectares of open land near Lake Argyle.  The reserve commences at the spillway of Lake Argyle which flows into a natural watercourse which takes the overflow from the dam back to the Ord River.  Although the purpose of the reserve is for “Irrigation”, it is said that the reserve is used to control activities at the spillway –

et cetera.  Then his Honour points out that:

In 1988 approximately 8.6 hectares of the reserve was the subject of a lease for a term of two years for the purposes of –

accommodating certain people.  But, once again, the indication is given there concerning the nature of the terrain that one is dealing with.  Then, if I can take your Honours to page 610 of his Honour’s ‑ ‑ ‑

GLEESON CJ:   Just before you pass off that reserve, it is said on the top of 608:

Licences have been granted to parties conducting canoeing ventures –

et cetera.  Those licences are granted by the Water and Rivers Commission, are they?

MR BARKER:   I do not know but would believe so, your Honour.  I think they might be some of the parties for whom Mr McLeod appeared.

GLEESON CJ:   It is the grantor of the licence I am interested in, not the grantee.

MR BARKER:   Yes.

GLEESON CJ:   What is the source of the capacity to grant the licence?

MR BARKER:   I will see if I can get an answer to that.

GLEESON CJ:   You can come back to it tomorrow if you prefer.  If I can take your Honours to 610 at about line 39 at this passage, dealing with Reserve 43196 ‑ ‑ ‑

HAYNE J:   Just before you do, Mr Barker, could you tell me what the point is that you are going to get out of this?  I am sure we have all read Justice Lee’s judgment.  Where are we heading?

MR BARKER:   Your Honour, we are heading in this direction:  firstly, to indicate that, contrary to the approach taken by the majority below, if one adopts an approach to extinguishment, that is certainly not a brick‑by‑brick approach as the State would seek to characterise it, but a parcel‑by‑parcel approach to extinguishment as has been referred to in prior authority and seeks to understand whether there is any necessary inconsistency between interests created and native title rights and interests that one can see by reference to the matters that the Solicitor for the Commonwealth acknowledged were relevant, the size, the terrain, as well as the nature of the interests, that there is an error in the approach taken by the majority below.

I further seek to show the Court, because it is a matter, if the Court were with us on that point, which would be relevant to a determination, that questions of the findings that ought to be made have indeed been made by the trial judge in relation to these areas.  Even though it was not a matter undertaken by the court below, it was taken by the trial judge.

Reserve 43196, that is referred to at page 611, at about line 39, your Honours, is further described - at about line 20 – as a reserve to the water supply and electricity generation ‑ ‑ ‑

GLEESON CJ:   Where is it on this map? 

MR BARKER:   It is described, your Honour, as an area 234 hectares, containing the main dam and hydroelectric power station from the dam, and it might be that I can be assisted from another quarter, such as the State.  It does not immediately appear, but there is an unnumbered reserve just to the southwest of the earlier reserve I took you to – 41273 – and, subject to confirmation later, I believe that that may be the relevant reserve, but your Honours see that triangular portion. 

Again, at about line 39, his Honour described that reserve as one which – about line 36 – is “substantially larger than the land on which the works were constructed”, and further goes on to describe that the area in that “vicinity is undisturbed bushland; no further intention to extinguish native title is demonstrated by the creation of a reserve”, et cetera.  The expression “adverse dominion” is used, but, in our submission, it simply is another expression for the word “operational inconsistency”.  Your Honours, if I can take you to page 634 of the report.  His Honour, in dealing, under the heading (n), with the creation of Lake Kununurra and Lake Argyle, has again emphasised the nature of the terrain and the interests at play here. 

His Honour has indicated at about line 22 that:

The areas are immense and the effect is the replacement of open land with vast stretches of water.

At about line 40, his Honour notes:

In the case of the main dam the area of water is a vest expanse in open lands in a remote area.

And then points out to some of the uses that are made and they certainly are the types of uses that Mr McLeod made reference to earlier.

There has been a submission, your Honour, that the only factual matters pertaining to the dam itself are in the nature of spiritual interests and I ask your Honours to note, at about lines 28 to 32, that paragraph, that his Honour refers specifically to:

some usufructuary and spiritually-based rights” –

So it is not simply a matter of ‑ ‑ ‑

GUMMOW J:   What are they though?

MR BARKER:   Relating to fishing, by and large, and there is direct evidence of that which I can, and will, refer to later.  There is also evidence in relation to the edges of the lake, evidence of hunting for native game.

Your Honours have previously been advised as to the extent of the areas here and you appreciate what his Honour says here is correct, that there are many hundreds of thousands of acres of land, just in the Argyle resumption itself.  I think it approaches about one million acres of land, in essence, in the yellow portions.

Your Honours, if you could go to page 610 and 611 of the report, reference is made at the foot of 610 at about line 45 to “Reserve 31165”.  Your Honours will see that in the pinky‑ochre‑ish colour area to the south, just below the figure 17C, “Reserve 31165 King Location 380”.  That is an area that Mr Sofronoff drew your attention to previously and that is the subject of discussion again at the foot of that page and the top of the next page.  His Honour noted at 611 at about line 6 and following that:

The purpose of the reserve is to ensure that the land remained under government control.  A portion of it was subject to flooding and it was necessary to keep stocking numbers at levels at which soil conservation measures could be applied –

et cetera – and refers to the exhibit about that.  It indicates that some but not of all of it is subject to the flooding.  The consequences of the approach taken by the majority below is, we say, seen well in the paragraphs at [441] of the majority’s judgment below and following.  You will see at [441] that the majority noted that:

There may be areas, for example, in the north‑east, north‑west and western portions some distance removed from Lake Argyle where the requirements of management and control are perhaps not so obvious.

We say in respect of that that having regard to the findings that his Honour made at first instance that that is an understatement by their Honours in the court below.

GLEESON CJ:   What do you say is the test?  Let us take an example that has been referred to in arguments – it has nothing to do with the present case.  Suppose Crown land is used for the purpose of building a school and there are 10 hectares of land that is resumed or reserved for the purpose and the bricks and mortar occupy two hectares, and then there is a surrounding area for playing fields or whatever.  What is the test that a court applies to determine whether, in relation to the whole or part of the surrounding area, native title has been extinguished?

MR BARKER:   Well, your Honour, one does have to have regard to the factual situation and we do say that the ‑ ‑ ‑

GLEESON CJ:   Yes, but you are having regard to the factual situation for what purpose?  What is the question you are asking yourself?

MR BARKER:   To ascertain whether, in those circumstances, given the public purpose use, there is a necessary inconsistency with a continued enjoyment of native title rights and interests.

GLEESON CJ:   Nobody would doubt that there is in relation to the part of the land on which the bricks and mortar are erected, I presume?

MR BARKER:   Yes.

GLEESON CJ:   Although you might even have a suspension argument in relation to that, depending on the life expectancy.

MR BARKER:   We have not made that in relation to such an example.

GLEESON CJ:   In argument last week it was suggested by somebody, I think, that short of absence of bona fides, the resuming authority has a discretion that will be respected as to what is reasonably incidental or necessary for the use.  What do you say about that?

MR BARKER:   Your Honour, it is going, again, to depend on the circumstances.  If a large area is taken for government purposes and in some remote part of Western Australia and it is then decided, as there is economic development in the area, that it is an appropriate place to build a school and one proceeds to do that, then one would not quibble at all with a conclusion that the school, the area surrounding it that was reasonably required for the operation of that school, are within that use.  But the balance of the area that has been set aside, we say, plainly would be an area where native title rights and interests could continue.

GLEESON CJ:   So the Native Title Tribunal would make a judgment as to the reasonableness of the requirement?

MR BARKER:   It has to be made, and that flows from the decision in Mabo [No 2] itself, that his Honour Justice Brennan in that case indicated that it is not the setting aside, it is the actual appropriation for use, and it is parcel-by-parcel disposition of native title rights in this country that has achieved the loss of native title.  We say, therefore, that it does require some assessment, but in relation to an area, such as we have here in the circumstances, that the map I have just taken the Court to illustrates, we are dealing with vast areas where there is no necessary inconsistency of the continuation of native title rights and interests, that the appropriate test is to ask that question and not take some other approach like that taken by the Full Court below or the majority.  It is not going to be, we say, your Honour, helpful to look at the school example.

GLEESON CJ:   Well now, except that whatever we say in this case about the Ord Project is going to be used by somebody as a precedent, a case involving a school sometime.

MR BARKER:   Well it is, your Honour, and we say that one has to distinguish between those types of public uses, sorts that his Honour Justice Brennan did indeed refer to, post offices and the like, in Mabo [No 2], and this type of appropriation and partial use.  This, with respect, is much more akin to the circumstances that one has, in the other example that his Honour gave in Mabo, of a national park.  There is no suggestion that the setting aside of the land for a national park achieves any necessary inconsistency with the continued enjoyment of native title rights.

HAYNE J:   Well, tomorrow, I would much assisted if you could reduce your propositions in this regard to two or three sentences.  You have mentioned “necessary inconsistency”; you have mentioned “use”; you have mentioned “reasonable use”.  For my part I would be much assisted if you nailed your colours to a mast consisting of two or three sentences.

GAUDRON J:   Do you place any reliance on section 251D of the Native Title Act?

MR BARKER:   The answer to that question, your Honour, is no, that has not been applied by the majority below.

GAUDRON J:   I know it has not, but there is a question as to whether it should have been, and if you look to that ‑ ‑ ‑

MR BARKER:   If one looks to that, your Honour ‑ ‑ ‑

GAUDRON J:    ‑ ‑ ‑you look to what is necessary “for or incidental to the construction establishment or operation of the work”.  I would not have thought it was necessarily against you.

MR BARKER:   No, it may not be.

GLEESON CJ:   But you are not too keen on looking to the Act for other reasons.

MR BARKER:   Happy to look to the Act if it is necessary, your Honour.

GLEESON CJ:   Because it has bucketloads of partial extinguishment.

MR BARKER:   Your Honour, we accept that if the Act works a partial extinguishment, I should say, that, of course, there is.  Our contention has been to this point that the inquiry that the Court did have to make below, subject to the ruling that the Court might make about the necessity for the Appeal Court to have looked at the amendments to the Native Title Act, kept one in the area of the common law.

GAUDRON J:   Do you not accept that it would totally extinguish some areas, for example, around the Lake Kununurra spillway? 

MR BARKER:   Your Honour, there are findings that Justice Lee made to that effect, and we accept those.  In his determination, he listed the areas, including areas such as the one that your Honour refers to, as the subject of complete extinguishment.  So what his Honour did – and this is why we take you to this, and seek to emphasise the findings he made – is that there are large expanses of areas, there are large reserves within that Ord Project area itself, and that, if one approaches it on the basis of there being no necessary inconsistency between the reserve grants or the reserve uses, then, there will be extinguishment, but there is much that is not extinguished. 

GLEESON CJ:   Can I put you on notice of a question I would like you to deal with, when you come to your third point, Mr Barker, which is that concerning rights and interests and inconsistency?  And it is really just a question about the meaning of the determination made by Justice Lee. 

MR BARKER:   Yes. 

GLEESON CJ:   Could I ask you to go to volume 159 ALR at pages 639 and 640? 

MR BARKER:   Yes, your Honour. 

GLEESON CJ:   You see paragraph (3) of the determination? 

MR BARKER:   Yes. 

GLEESON CJ:   And then paragraph (5)? 

MR BARKER:   Yes. 

GLEESON CJ:   What I want to ask you is this:  by a reference to the particular rights and interests in (a) to (i) inclusive, what does it mean to

refer to rights and interests as being “concurrent”?  For example, what does it mean to say that the Aboriginal communal group’s “right to use and enjoy the resources of the ‘determination area’” is “concurrent” with somebody else’s right in that respect?  What does it mean to say, “the right to receive a portion of any resources taken by others from the “determination area” is “concurrent” with some other person’s right in that respect?  And, in particular, what does it mean to say that a right to “possess” the determination area is “concurrent” with somebody else’s right to possess the determination area?  Perhaps you could deal with that, when you come to your third matter. 

MR BARKER:   May it please the Court.  I understand Mr Basten, your Honour, wanted to hand something ‑ ‑ ‑

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Might I have the Court’s indulgence to nail our colours to the mast tonight?  We have a written submission in response and reply which I could hand up to the Court to save time tomorrow.

GLEESON CJ:   Yes, thank you, Mr Basten.

MR BASTEN:   If the Court pleases.

GLEESON CJ:   Thank you.  We will adjourn until 10.15 tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 16 MARCH 2001