kN (deceased) and Others on behalf of the Tjiwarl and Tjiwarl#2; Tjungarrayi & Ors v State of Western Australia & Ors
[2018] HCATrans 233
[2018] HCATrans 233
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P38 of 2018
B e t w e e n -
KN (DECEASED) AND OTHERS ON BEHALF OF THE TJIWARL AND TJIWARL#2
Appellant
and
STATE OF WESTERN AUSTRALIA
First Respondent
SHIRE OF LEONORA
Second Respondent
ALBION DOWNS PTY LTD
Third Respondent
MARILYN ANNE BERNHARDT AND COLIN LESLIE BERNHARDT (YOUNO DOWNS STATION)
Fourth Respondent
RANGEVIEW ASSET PTY LTD
Fifth Respondent
WEEBO PASTORAL COMPANY PTY LTD
Sixth Respondent
AGNEW GOLD MINING COMPANY PTY LTD
Seventh Respondent
BHP BILLITON NICKEL WEST PTY LTD
Eighth Respondent
BHP BILLITON YAKABINDIE NICKEL PTY LTD
Ninth Respondent
CAMECO AUSTRALIA PTY LTD
Tenth Respondent
MABROUK MINERALS PTY LTD
Eleventh Respondent
MPI NICKEL PTY LTD
Twelfth Respondent
TELSTRA CORPORATION LIMITED
Thirteenth Respondent
TEC DESERT NO 2 PTY LTD
Fourteenth Respondent
TEC DESERT PTY LTD
Fifteenth Respondent
CENTRAL DESERT NATIVE TITLE SERVICES LTD
Sixteenth Respondent
Office of the Registry
Perth No P37 of 2018
B e t w e e n -
HELICOPTER TJUNGARRAYI AND JANE BIEUNDURRY AND RICHARD YUGAMBARRI AND FRANCES NANGURI AND RITA MINGA AND EUGENE LAUREL AND DARREN FARMER AND SANDRA BROOKING AND BARTHOLOMEW BAADJO AND JOSHUA BOOTH AND BOBBY WEST
Appellants
and
STATE OF WESTERN AUSTRALIA
First Respondent
SHIRE OF HALLS CREEK
Second Respondent
COMMONWEALTH OF AUSTRALIA
Third Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 NOVEMBER 2018, AT 10.04 AM
Copyright in the High Court of Australia
____________________
MR S.A. GLACKEN, QC: If the Court pleases, I appear with MR S.J. WRIGHT, SC for the appellants, the Native Title Party, in each matter. (instructed by Central Desert Native Title Services)
MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MR G.J. RANSON on behalf of the first respondent, the State of Western Australia, in each matter.
(instructed by State Solicitor’s Office (WA))
KIEFEL CJ: The Court records that in matter P37 of 2018 the third respondent has filed a submitting appearance. The second respondent has been served but has not filed an appearance, and that in matter P38 of 2018 respondents numbers 3 to 10 inclusive, 12, 13 and 16 have filed submitting appearances, the other respondents have not but have been served. Yes, Mr Glacken.
MR GLACKEN: If your Honours please, your Honours will appreciate that the burden of each appeal is that in reversing of the construction of the two trial judges that the existence of an exploration licence over a claim area does not preclude the application of section 47B of the Native Title Act. The Full Court, in our submission, erred in the application of the definitions of “lease”, “mining lease” and “mine” in sections 242, 245 and 253 as properly understood in the context of section 47B.
The errors, in our submission, are threefold: first, the Full Court disregarded the actual text of section 242(2), being a critical if not the critical provision; secondly, the Full Court failed to have regard to the actual substantive operation of the Act in relation to the defined terms of “mining lease” and “mine”; and, thirdly, the Full Court’s construction is contrary to the context of section 47B in being concerned with when vacant Crown land is available for claim and restoration to traditional ownership despite historic extinguishment.
When one pays attention to the statutory context, the critical text of the sub‑definition of “mining lease” in section 242(2) and the Act’s substantive operation in relation to the defined terms, the proper conclusion in our submission is that the reference to a lease in section 47B of the Act does not comprehend an exploration licence.
KIEFEL CJ: Is your third proposition really your principal submission and the first two lead into it?
MR GLACKEN: The second leads into the third but the first is our primary and independent, if you like.
KIEFEL CJ: But if you are right about the third the first does not matter. Is that correct?
MR GLACKEN: We put the third in two different ways. One is we say it is confirmatory of our reading of section 242(2). The second, if necessary, is put as manifesting a contrary intention if the Full Court’s construction of section 242 is correct.
Can I explain now how the second feeds into the third? The Act’s substantive operation in relation to the defined terms of mining lease and mine concern, in respect of a mining lease, the application of the non‑extinguishment principle and in relation to the substantive operation of the term “mine”, that is in the context of a creation of a right to mine, concerns the right to negotiate in the Act.
The second point feeds in because it is incongruous, in our submission, that a non‑extinguishing event under the Act, a mining tenement, could be treated for the purposes of section 47B as an Act that continues prior extinguishment.
It is incongruous because the whole point of section 47B is to disregard prior extinguishment and to apply the non‑extinguishment principle to the creation of other interests.
GORDON J: Is not that just chicken and egg though, which one comes first?
MR GLACKEN: In the sense that ‑ with respect, it is the context in which one understands the substantive operation. But might we say, your Honours, that this understanding and this broader understanding of the Act which the Full Court did not undertake, helps illuminate why it is that section 242(2) uses the expression that, “In the case only of references to a mining lease” will a mining lease include a licence or authority to mine.
KIEFEL CJ: But the central question in this case concerns the construction of section 47B(1) does it not?
MR GLACKEN: Yes, or the – I could put it as the ultimate question.
KIEFEL CJ: That is what is comprehended by the term “lease”.
MR GLACKEN: Yes, as used in subparagraph (1).
KIEFEL CJ: The way in which you are approaching it to start with, section 242(2) is really to adopt the approach of the Full Court, is it not?
MR GLACKEN: We do that, your Honour, to say that the Full Court – its premise was erroneous.
KIEFEL CJ: But you also say that – well, all right, I will leave you to it.
MR GLACKEN: I am happy to start with section 47B but I think because of the second point feeding into section 47B, it is convenient to follow the sequence that I have outlined.
NETTLE J: Would the incongruity that you have just identified of non‑extinguishing tenement continuing extinguishment apply equally to a mining lease stricto sensu?
MR GLACKEN: Yes, and can we say that the contextual reasons why section 47B does not comprehend an exploration licence have application to a mining lease per se, but of course we are one step removed. This is a case where the contextual reasons have greater force in the case of an exploration licence.
KIEFEL CJ: But just to be clear, you say the lease referred to in section 47B(1) does not comprehend a mining lease?
MR GLACKEN: Yes.
KIEFEL CJ: Yes, and that regardless of how you construe section 242(2), that there is a jump, if you like, from the construction adopted by the Full Court to inserting that into what is comprehended by the word “lease”?
MR GLACKEN: Yes. The slide, if you like, with respect, was based on their use of section 242(2) and their use of the term “mine” as defined, and that is why I wanted to approach it in that sequence.
GAGELER J: Mr Glacken, is the word “lease” in section 47B(1)(b)(i) the lease as defined in section 242(1)?
MR GLACKEN: In most cases, yes, and, in particular, paragraph (c). Just to stay with this point – in terms of the question by Justice Nettle – if one formed the view that a mining lease, something described as a mining lease in State legislation, is a lease because of the terminology of section 242(1)(c), and if one then says, does that therefore mean that the use of the word “lease” in section 47B, prima facie, comprehends such a thing, we are one further step removed because the step taken by the Full Court is to say it also includes (a) a licence or authority even though it is not described in the legislation as a licence or authority, and (b) a right to explore alone not to mine.
NETTLE J: It would be just as incongruous in the case of a mining lease, strictly so‑called, as it would be in the case of an exploration permit, would it?
MR GLACKEN: That may well be so, your Honour, but one can imagine another example where exactly that happens. A pastoral lease – if one takes the view that a pastoral lease is comprehended by the same route – it is described in the definitions as a lease that permits the use of land for grazing, and the like.
NETTLE J: Yes.
MR GLACKEN: In the case of a pastoral lease, the cut‑off, if you like, is between a pastoral lease and a grazing licence. So, something called a “grazing licence” that, for example, considered in R v Toohey; Ex parte Meneling Station Pty Ltd 158 CLR, that is not comprehended as a lease in any fashion. So, the legislator has, if you like, drawn a cut‑off line. Section 242(2) is a specific exception where a particular type of lease will include a licence or authority. That particular type of lease is a mining lease but it does so, in our respectful submission, for particular reasons which are revealed in the extinguishment provisions of the Act.
NETTLE J: I am sorry, I have lost the thread of this. Do you now accept that a mining lease, strictly so‑called, is a lease within the meaning of 47B?
MR GLACKEN: Can be.
NETTLE J: It is just that when one goes beyond a mining lease, strictly so‑called, to an exploration permit, it is not within the definition of “lease” in 47B.
MR GLACKEN: Yes.
GORDON J: Is there any other instance – you said, “can be” – are there any other circumstances where it is not caught on your construction?
MR GLACKEN: On our construction, the section 47B does manifest a contrary intention.
GORDON J: I am sorry, I am lost. Justice Nettle asked you whether or not a mining lease is caught by 47B(1)(b)(i).
MR GLACKEN: Our submission is that it is not, I am sorry.
KIEFEL CJ: Is the context you are referring to an interest in land?
MR GLACKEN: Yes.
KIEFEL CJ: You say a mining lease does not contain an interest in land and section 47B(1) is concerned only with the creation of interests in land. Is that your point?
MR GLACKEN: It is concerned with something that has the quality of an extinguishing event as far as the Native Title Act is concerned. One would start with the expression “freehold estate or a lease” which appears in roman numeral (i) – in ordinary meaning, comprehends an estate or interest in the land. And, the definition of “interest” in section 253, paragraph (a), also starts with that, that it comprehends “a legal or equitable estate . . . in the land”. One then starts on that ‑ ‑ ‑
EDELMAN J: Do you accept that 47B(1)(b)(i), in referring to “lease”, picks up the extensions in 242(1), although not 242(2)?
MR GLACKEN: That is at the least, yes.
NETTLE J: A mining lease would be a usufructuary interest in the land, would it not, and thus within the definition of interest in section 253?
MR GLACKEN: Well, a pastoral lease or a grazing licence could have the characterisation of a usufructuary interest in land, but a mining tenement, including a mining lease, would not. An exploration licence confers nothing but authority ‑ ‑ ‑
NETTLE J: Certainly, but a mining lease, strictly so‑ called?
MR GLACKEN: No. If you look at the line of authority considered by this Court in TEC Desert – I think it is 251 CLR – going back to Justice Windeyer’s judgment in Wade v New South Wales Rutile Mining Co, is that a mining tenement is often described as a chattel interest. It does not confer a propriety interest in the land.
Now, that is part of the context with which one looks at 47B. I am happy, perhaps, just to go straight to the context of 47B without the mechanics along the way, which was the mechanics of the Full Court’s construction, but what I want to do is really dismantle the Full Court’s premises before we got to the punchline or the context.
KEANE J: But is not the punchline of your submission to take the Full Court’s approach, which is a literal approach, at its highest and say that the prefatory words of 242(2), which speak of “reference”, that means textual reference?
MR GLACKEN: Yes.
KEANE J: And if there is not textual reference the extended operation that 242(2) gives to the notion of mining lease does not apply.
MR GLACKEN: Yes.
KEANE J: Why would you need more than that?
MR GLACKEN: I say I do not but ‑ ‑ ‑
KEANE J: I mean you are saying – you are advancing arguments to the effect that the reference in 47B(1)(b)(i), or (1)(b)(i), is to extinguishing events, a genus of extinguishing events. If the statute had meant to say that, it could have easily said it.
MR GLACKEN: Yes, and in context ‑ and this is really where Justice Barker landed, I think, ultimately, is that there being – one would expect some clarity, irresistible clearness, if the Act was going to depart from its regime of protecting native title to make that leap. That is why I said at the outset, there are three points. The first is the textual one about section 242(2). If we are right on that, it is game over as far as this case is concerned.
KIEFEL CJ: That is because it feeds into the construction of 47B(1). I mean, it is the answer on your argument, it is the answer to – yes, complete answer to the Full Court. There is no reference to a mining lease.
MR GLACKEN: Yes. Our second and third points show why it is quite sensible that there is no such reference. Might I go to how the Full Court approached ‑ ‑ ‑
GORDON J: Just before you do that, do you propose to deal with the constructional problem of the other provisions in the Act which, when they seek to exclude from lease the concept of a mining lease, it specifically addresses that language?
MR GLACKEN: Yes, we do.
GORDON J: It seems to me that every other time the Act seeks to take out of the inclusive definition of “lease”, the subset of mining leases, it does so specifically.
MR GLACKEN: Yes, we make two points about that, your Honour.
GORDON J: I should say more than once it does that.
MR GLACKEN: It does it several times, and it does, though, in the context of the substantive extinguishment provisions and it is a drafting device – so we make two points – the first is that it is a drafting device and that is that where there is a reference to a lease there is a specific exclusion in the context of extinguishment by saying “other than a mining lease”, because of the difficulty that section 242(1)(c) might capture something called a “mining lease”, so it is no more than clarity in the drafting to make sure that one does not say, well, hang on, what about a mining lease, is it included. The second point we wish to make ‑ ‑ ‑
GORDON J: How does that help you? Is not that against you?
MR GLACKEN: In our submission, not ‑ perhaps for the second point if your Honour does not like the first point. The second point is that it says nothing about a licence or authority. It has no bearing upon the Full Court’s construction that a reference to a lease – that is really the slide by the Full Court – includes a licence or authority.
GORDON J: I think the stepping stones, if they are right or wrong, are a separate question, but one has to read 242(2) as being an amendment in those circumstances to the definition of “a lease” rather than to the definition of “a mining lease”. If you are going to look at it, it is creating a subset and extending the definition of “lease” in a very peculiar and limited fashion.
MR GLACKEN: Yes, and that is all there is to where we join issue on section 242.
GORDON J: That seems to be the one point between the two of you. It is either an extension of the definition of “lease”, and the one thing against you, it seems, would be that if you are right you would expect it to be in the definition of “mining lease”, not in the definition of “lease”.
MR GLACKEN: We say it is a sub‑definition of “mining lease”, and this is confirmed by the simple point raised by Justice Keane, that it is only in the case of references to a mining lease. Our friend’s approach on that is reading section 242 as if the words say “in the case of a mining lease, a lease includes a licence”. What the drafting is is that in the case only of references to a mining lease, so that simply means that one has to find those two words together - “mining lease”.
GORDON J: That is the issue that joins you.
MR GLACKEN: Yes. I do not know whether I really need to say much more about the construction of section 242 because that is it. Can I go back to how the Full Court dealt with that particular point?
EDELMAN J: Just before you do, your textual point, as I understand it, is that subparagraph (2) is an extension in the same way as 242(1)(b) is an extension; in other words, that the use of the magic word “lease” could turn a licence into a lease under 242(1)(b), and the use of the magic words “mining lease” can turn a licence into a lease under 242(2).
MR GLACKEN: Yes. It can operate at two different levels. One is if one concludes in a substantive sense that something is a licence, because it does not confer a right of exclusive possession, or – and this is really the devil that the Act is addressing – where the legislation uses labels like “lease” or “licence”.
EDELMAN J: So the reason you would say that one has this specific extension under the definition of “lease” is the same reason that you see (1)(b) in there? It is just a further extension in cases of mining leases.
MR GLACKEN: Yes, and only of references to a mining lease. I cannot overemphasise the word “references”.
EDELMAN J: But that is really the same effect as 242(1)(b), is it not – a reference to or a statement to the effect that it is a lease?
MR GLACKEN: No, because 242(1)(b) is looking to a substantive conclusion that you will find outside of the Act. Section 242(2) is looking to an extension for something that you will find within the Act.
KIEFEL CJ: So “references to” is read to mean references in this Act?
MR GLACKEN: Yes.
EDELMAN J: Why would it not also be references in State legislation?
MR GLACKEN: Because the whole point of the definition, if one goes back to section 9, is it is defining expressions used in the Act. So the expressions that are being defined are in subsection (1), “lease”. That is an expression used in the Act.
GORDON J: I am back to where I started. You are dealing with it in this section, section 15, dealing with definition of “lease”. You are not dealing with definition in 242 of “mining lease”.
MR GLACKEN: Yes. But that is ‑ ‑ ‑
GORDON J: So I do not understand how the phrase “references to a mining lease” has to be limited to, or can be limited to, references to those two particular words in this Act. That is not what section 242 is addressing. It is addressing the definition of “lease”.
MR GLACKEN: We maintain it is a sub‑definition of “mining lease”. It may define the word “lease” but only where it appears in conjunction with the word “mining” and that is the drafting only of references to a mining lease.
GORDON J: Why would that not then be in 245 which is dealing with mining leases specifically as a specific definition?
MR GLACKEN: It is neither here nor there, in our respectful submission, because one would just look at the fact that 245, that has the expression “lease” – “A mining lease is a lease”.
NETTLE J: It means it includes the licence.
MR GLACKEN: Yes, by 242(2) that can feed into that, that it includes a licence or authority to mine. I do not find, in our respectful submission, the location of 242(2) to be critical. What we do say, in our respectful submission, is what is critical is the manner in which it has been drafted to capture references.
Could I then go to how the Full Court dealt with this point, appeal book volume 2, page 641. Earlier, their Honours had taken the steps of saying because of 242 a lease includes a licence and because of 253 mining includes exploring. Then when it came to the text of section 242(2), their Honours dealt with our argument at paragraph 76 and at about line 4 in the sentence it commences:
In this context, “mining leases” are a type of lease. The purpose of ss 242(2) and 243(2) –
the latter dealing with lessee:
is to ensure that instruments described as licences or authorities to mine (which include exploring or prospecting for things to mine by s 253) are taken to be a mining lease, and thus a type of lease for the purposes of the NTA.
Our submission is that, with respect, their Honours are treating that analysis of something being taken to be a mining lease as a type of lease for all purposes of the Act. When one looks at what is the purpose of the Act in referring to a mining lease, they are found in Divisions 2, 2A and 2B and their purpose is to treat mining leases as a non‑ extinguishing event.
The mischief or the apprehension at the time of the enactment, and we will go to the legislative history, was an apprehension such a thing could extinguish native title and that would treat native title differently to the holders of other forms of title. For example, the Mining Act (WA), section 113, provides that the owner of a land will resume full possession of the land once expired.
KIEFEL CJ: When you say it treats mining leases as a non‑ extinguishing event, that is in relation to past acts, past acts in category C?
MR GLACKEN: Yes, in Division 2.
KIEFEL CJ: Yes.
MR GLACKEN: Then Division 2A, intermediate period acts, and Division 2B, previous exclusive possession acts. This is another criticism we make of the Full Court’s analysis. Although the mischief is to make sure that something that gives rights, like a mining lease, if it is described as a licence or authority, is treated in the same way, there is no reason for that apprehension in the case of an exploration licence and that is a category D act. We will go to the legislative history shortly.
Perhaps while I am on that, and your Honours have section 242 open, I might just make one further observation about subsection (1)(c). Ward 213 CLR 1 at about paragraph 299 observes that a mining lease under the Mining Act (WA) is a lease within paragraph (c) because it is described as such in the granting legislation and is, therefore, a category C act for the purposes of the past Act extinguishment provisions.
What paragraph (c) does is at least two things. One is that if the piece of paper evidencing the grant is not styled as a lease but the legislation describes it as a lease, then it is to be treated as a lease for the purposes of the Act. The second thing it does is that although something in a substantive sense may not be a lease because it does not confer exclusive possession but it is styled as a lease in the legislation, it will be treated as a lease. In the case of a mining lease, the legislative history is conveniently set out in the preceding page.
GORDON J: Just before you go to that, could I just ask one question about 243(2)? Do you propose to deal with that before you deal with the legislative history because they came in together, I think?
MR GLACKEN: Yes, can I say that 243(2) does nothing more than feed into section 245 as an understanding of who is the lessee referred to in section 245. There are no – apart from some provisions which I will turn up in a moment, it has no substantive independent operation other than informing the definition of a mining lease in section 245 so that where 245(1) refers to a “lessee” that will include the licence holder or the holder of the authority.
GORDON J: I was more interested in the first phrase which is the first two and a half lines of section 243(2) which would seem to suggest on one construction of the Act that it is treating, as I put to you earlier ‑ it is an extended definition of “lease”, to pick up a “mining lease” which therefore picks up “licences” and “authority”.
MR GLACKEN: Yes, and “because of” feeds into the expression of “lessee” used in the operation of section 245. There is no independent operation of the expression “lessee”. If I can give your Honours the references to where the Act does refer to a lessee, in each case it is concerned with a pastoral lessee, but it is sections 24GE(1)(e), 24MD(5) and 44B(2) and 44C(3). So, on our reading of the Act that definition of “lessee” has no independent operation and does nothing other than to illuminate how to read section 245.
Perhaps while your Honours also have section 242, and going back to subsection (2), it is not without significance, we submit, that it is referring to an action of a licence issued or an authority given rather than a static situation. That, in our submission, does indicate its interaction with the substantive provisions of Divisions 2, 2A and 2B, which are concerned with the act of the grant of a mining lease. So where there is a reference to the act of the grant of a mining lease, that is to be read as including a reference to the act of issuing a licence or giving an authority.
In terms of the legislative history, if your Honours still have volume 2 of the appeal book, at page 640, at paragraphs 74 and 75, the Full Court cites the extrinsic material. Their Honours use it to confirm their construction. Justice Barker used it to confirm his contrary construction. We say Justice Barker’s analysis is correct for two reasons or two points that are to be drawn from the extrinsic material. The first appears at about line 25, that quotation of the supplementary material where it is referring to section 242(2) and says:
The addition of subclause (2) provides that for the purposes of mining leases only, licences or authorities to mine are to be treated in the same way ‑
Now again, that, we say, matches the deliberate language of 242 to say it is in the case only of references to mining leases. The second point we extract is from the last three lines of the page, which is then dealing with the definition of “lessee” in section 243 where the explanatory memorandum observes, in the last three lines:
These amendments are also consequential upon the treatment of mining licences and authorities which give similar rights to mining leases in the same manner for the purposes of this Bill.
So what is the concern is that if an instrument, to use a neutral term, gives rights similar to mining leases is to be treated in the same manner. That is why we say the Full Court erred to read the definition of “mine” as including the word “explore” into the references to a mining lease.
The short form of the treatment of mining tenements, if I can use a neutral term, is probably best illustrated by the expression of the non‑extinguishment principle in section 238. I am still dealing with the legislative history and context. I am using volume 3 of the book of authorities. Section 238 commences on page 173. If I can take your Honours to the example given in subsection (8) ‑ volume 1, tab 3 of the authorities. Subsection (8) gives an example of the operation of a non‑extinguishment principle:
to a category C past act consisting of the grant of a mining lease that confers exclusive possession –
and it goes on to explain the operation that, in effect, the native title would be suspended and revived once the Act ceases to have effect.
I have already mentioned section 113 of the Mining Act. In our written submissions we note in footnote 25 – we have made available the Hansard, if that is convenient ‑ the second reading speech where the Prime Minister explained the treatment of mining tenements being driven by – ensuring it is the same treatment to other title holders and referring to section 113 of the Mining Act.
The apprehension expressed in subsection (8) of 238 and the mischief being addressed is not one that would be available or readily apparent in the case of an exploration licence. Your Honours will recall that in Ward the Full Court had held that a mining lease would extinguish native title. This Court disagreed at paragraphs 306 and 308, but your Honours will recall that in Western Australia v Brown the issue was agitated again and at 253 CLR 507, at paragraphs 41 to 46, the Court concluded that the mining lease did not have that extinguishing effect.
The apprehension that it might have such an extinguishing effect is readily apparent, for example, from section 85 of the Mining Act, which confers rights to use the land exclusively for mining. That has always been the type of argument. No apprehension lies in the case of an exploration licence.
As part of the background to the Act, we have provided an extract from the judgment in Mabo of Justice Brennan. Your Honours will appreciate that although, of course, we are dealing with the text of the Act, much of what is said by Sir Gerard informs what is found in the Act. After giving an account of what could be extinguishing events, commencing at page 63, at page 69 Sir Gerard gives a summary. If we could take your Honours to paragraph 4 at the bottom of page 69.
What we take from that legislative history is that the mischief being addressed is to ensure that instruments that confer rights to mine be treated in the same way, whether they be styled as a lease, licence or authority, but there was no mischief in the case of an exploration licence.
GAGELER J: Mr Glacken, I may be misunderstanding your submission. In section 238(8), there is a reference to a mining lease. Does that reference to a mining lease invoke the extended definition in section 242(2)?
MR GLACKEN: Yes. In that particular example the question would become does it confer a right of exclusive possession despite the language of “licence” or “authority”. I have gone to 238 as a shorthand way of dealing with the substantive provisions that refer to a mining lease. Perhaps I will come back that. But, for the moment, I want to address the legislative history and the mischief involved.
GAGELER J: The mischief ‑ ‑ ‑
MR GLACKEN: To treat ‑ ‑ ‑
GAGELER J: ‑ ‑ ‑ to which provision is directed ‑ ‑ ‑
MR GLACKEN: Section 242(2) - and, that is to treat – if I can use a neutral term – instruments to mine in the same manner, irrespective of how they are styled. Can I conclude in reference to the analysis of section 242 by saying that what has occurred in the Full Court, in our submission, is not dissimilar to what occurred in Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628. Perhaps, I might take your Honours to it. It is volume 3 of the authorities at tab 9.
In that case, a definition of “dividend” in the Taxation Act, included bonus shares which have the nature of capital. The argument was that bonus shares were, therefore, to be treated as if they had the character of dividends and, therefore, constituted assessable income. The joint reasons deal with the argument and set it out at page 635.
KIEFEL CJ: What is the point you are making here, Mr Glacken?
MR GLACKEN: That, as in Gibb, what section 242 does is define – or provide a sub‑definition of “mining lease” – only in the cases of reference to “mining lease”. As in Gibb, the definition was only with respect to dividends and said nothing about income. We say 242 says nothing about a reference to a lease alone.
KIEFEL CJ: Sorry, it says nothing about?
MR GLACKEN: A reference to a lease alone. Perhaps our argument is best conveyed by ‑ ‑ ‑
KIEFEL CJ: In 242(2) where it says:
the expression lease also includes a licence issued, or an authority given –
do I understand your argument to be that, whatever those descriptions are, they refer to a document which amounts to a mining lease, so they would be a licence to mine or an authority to mine?
MR GLACKEN: Yes.
KIEFEL CJ: But would that not bring in the definition of “mine” then if that is implicitly caught up?
MR GLACKEN: No. We say no for two reasons, your Honour. One is that the substantive references to a mining lease in Divisions 2, 2A and 2B. when one has regard to the substantive operation of those provisions a mining lease is category C. There is no reason ‑ ‑ ‑
KIEFEL CJ: Well, perhaps you should expand on what you mean by the substantive operation of those provisions.
MR GLACKEN: Perhaps if I can just complete that sentence. In those provisions an exploration licence can be category D. There is no occasion to read “exploration licence” within “mining lease”. On the other hand, the term “mine” by itself appears in Division 3 and there is a sensible reason to read “mine” in those situations as comprising a right to explore only. I will come to the references in a moment.
Perhaps just dealing with the Division 2 treatment – and it is replicated in the provisions – if your Honours go to section 15 on page 50 of the materials, one will see in section 15(1)(d) that if a past act:
is a category C past act or a category D past act—the non‑extinguishment principle applies to the act.
The non‑extinguishment principle, as I mentioned is set out in section 238. Section 231, appearing on page 167 of the materials, provides that:
A category C past act is a past act consisting of the grant of a mining lease.
In those references one would read in “licence or authority” as per section 242(2). There is, however, no need to read in the word “explore” by the word “mine” because of the next category, category D, which is basically any other act that is not within the preceding categories.
NETTLE J: Is that against you, the fact that there is no need at that point to read in “licence”?
MR GLACKEN: That is for us. Sorry - no need to read in the word “explore” is what I said.
NETTLE J: All right.
MR GLACKEN: Sorry. An exploration licence can be within category D.
GORDON J: Can be but it might also be in C.
MR GLACKEN: If one reads the word “mining” in section 245 as picking up “explore”.
NETTLE J: Well, why would you not? I mean why – it is just the way it works, is it not? You look at mining and then you go to the next section, it tells you what is in mining.
MR GLACKEN: Perhaps I will need to complete it by going to the references to the word “mine” in contradistinction. Consistent with the extrinsic material to which I went to, we submit that “mining lease” – “references to a mining lease” are concerned with mining as opposed to exploration. Within category C there is no need or occasion to read “explore” into the reference to “mining lease”. The Act works perfectly fine by treating a licence to explore as in category D. The definition of “Act” itself, which appears on page 160 of those materials in section 226, is act in referring to a licence or authority. That is in paragraph (b).
BELL J: I am sorry. Which section are you taking us to?
MR GLACKEN: Section 226(2)(b), referring to an act and bear in mind that category D is essentially defining any other act as a catchall, if you like, that does not fall within the preceding categories. One can read these provisions as operating harmoniously by treating an exploration licence as category D and not as within a mining lease.
KIEFEL CJ: But why would you read them that way? What is the compelling – why did you need to read them the way for which you contend?
MR GLACKEN: Perhaps if I could put it the other way. There is no reason to read it the way the Full Court did. The Full Court read the word “explore” into “mining lease” so that whenever the Act refers to a mining lease, it refers to explore. Now, what their Honours did not do is to look at when does the act refer to a mining lease and why does it refer to a mining lease. The submission is simply that there is no occasion ‑ ‑ ‑
KIEFEL CJ: You say the reason it refers to a mining lease in relation to the effect of validation and the non‑extinguishment principle is - it refers to mining lease and not authority because ‑ ‑ ‑
MR GLACKEN: It refers to – it can include a licence or authority but it does not embrace rights only to explore. Their Honours read the word “explore” into section 245 because it uses the word “mining” and then said, now, wherever the Act refers to a mining lease that includes “explore”, “explore” alone. Now, obviously, a grant of a mining lease is going to carry with it rights to explore incidental to mining, the miner needs to search for the minerals to dig them up but our submission is that the term “mine”, and it is defined to include “explore”, has another particular operation which is in Division 3.
GORDON J: Just so that I am clear – the definition of “mine” in 253, you say does not apply except in when?
MR GLACKEN: Division 3, which I will come to in a moment.
GORDON J: But does not otherwise apply throughout the Act.
MR GLACKEN: There is no occasional need to read “mining lease” as exploring.
GORDON J: No, no, no, I just want to understand the broad proposition first is that the definition of “mine” in 253 only applies in the context of the Native Title Act in Division 3.
MR GLACKEN: Yes.
NETTLE J: That is because a contrary intention appears?
MR GLACKEN: Yes, and because it makes perfect sense.
NETTLE J: But where is that contrary intention?
MR GLACKEN: Can I come to Division 3 then?
NETTLE J: Yes. I mean the contrary intention which is referred to in the opening line of section 253 – that is to say the definition of “mine” applies in this Act unless the contrary intention.
MR GLACKEN: The contrary intention within Divisions 2, 2A and 2B – for Divisions 2A and 2B the contrary intention is that category D does the job, category D covers an exploration licence, it functions to do that.
KIEFEL CJ: You do not need a reference to authority or licences in the category C past act because mining leases operate in a different way. They do not comprehend – a category C past act does not comprehend an authority or a right to a licence to explore because they do not do what a mining lease does?
MR GLACKEN: Correct.
KIEFEL CJ: So you do not need the more general term to pick up the lesser because those provisions are concerned to – I am just grappling with the non‑extinguishment principle and why it is directed so much to the mining lease but it is not – you say it is not directed – does not need to be directed to an authority.
MR GLACKEN: No need to read the reference to a mining lease in Divisions 2 and 2A as embracing a licence to explore. Division 2B only ever uses the expression a “freehold estate” or a “lease” so one again does not have any need to look to what we are dealing with which is a licence to explore.
Now, bear in mind, if there is a constructional choice and the Act works perfectly fine in the way we have outlined one would, I think, be driven to the choice that we are submitting should be taken and that is there is no need to treat a mining lease reference as embracing a licence only to explore in those divisions.
GAGELER J: Mr Glacken, I confess that I am really not following the argument. You were, I thought, explaining the mischief to which section 242(2) is directed. Section 242(2), on your submission, says where you see these two words -“mining lease” - read the word “lease” in that collocation in a particular way.
MR GLACKEN: Read “licence” or “authority” in – perfectly happy with that.
GAGELER J: The submissions you are now making focus not on why you would read “lease” within the expression “mining lease” in that extended way but why you would not read “mining” in that expression to include exploration.
MR GLACKEN: Correct; to only be exploration.
GAGELER J: Can we just stick with the first for a moment, that is, why you say section 242(2) has this extended operation in respect of the word “lease” when you see the expression “mining lease”. I would be assisted if I could understand that first before separately understanding why “mining” should be given a restricted meaning in these provisions.
EDELMAN J: Sorry, just before you address that as well, I would also be assisted in knowing whether the two submissions are alternative. In other words, if your submission on the first point that Justice Gageler has just raised with you is correct, whether it matters for your argument whether the definition of “mine” is read into “mining” or whether you need to succeed on both aspects of the submission.
MR GLACKEN: Dealing with the first question, 242(2) works perfectly fine where there is a reference to a mining lease in Divisions 2, 2A and 2B, to bring in a licence or authority to mine. The mischief, as apparent on the extrinsic material, is that if some jurisdictions label an instrument as a licence rather than a lease but that thing gives rights similar to a mining lease, as the material puts it, that thing is to be treated in the same way. That works perfectly fine.
The second point – and I do not need to succeed on the second point to win the case, but it is part of a harmonious construction – is that we take umbrage with the Full Court’s approach that the word “explore” has to be read into all of those references. There is no need to. The Act works perfectly fine by appreciating that a licence, or permission to explore, can be treated as a category D act.
EDELMAN J: If you are right on your first point one would never ask the second question, would one, in this case?
MR GLACKEN: Only in this case.
EDELMAN J: Because there would not be a mining lease and so one would not then need to turn to the question of whether or not in other cases a mining lease might involve the extended definition of “mine”.
MR GLACKEN: Yes – on the facts of this case, yes. Can I then, in terms of the workings of the Act, point out that the word “mine” itself is used in a different expression – or part of a different expression in Division 3? Perhaps if I can take your Honours to the operative references and by way of background, your Honours will appreciate that generally speaking, future acts do not extinguish native title, save for a compulsory acquisition of land. In general, future acts require some prior consultation, if not agreement, before their occurrence and in general, the treatment of future acts is heavily driven by the RacialDiscrimination Act to make sure native title holders are treated in the same way as the holders of a freehold title – hence the freehold test.
KIEFEL CJ: In the context of the terms that we are talking – mining lease – are we in the area of right to negotiate provisions and validation of ‑ ‑ ‑
MR GLACKEN: Future acts. Future acts are not validated.
KIEFEL CJ: No.
MR GLACKEN: They are valid. They are valid if they pass the freehold test – is the first step. The second step is that when they are subjected to rights to negotiate those procedures must be complied with.
KIEFEL CJ: Perhaps we should come back to that. I am taking you away from Division 3.
MR GLACKEN: That is in Division 3. In contradistinction – so, our submission is Divisions 2, 2A, 2B work perfectly fine without bringing in the baggage of “explore” into reference to a mining lease. The word “mine” – and conveying the word “explore”, as per section 253 – does work perfectly fine in Division 3 and serves a purpose. The operative key provisions are section 26, on page 96 of the materials.
KIEFEL CJ: Sorry – section 26.
MR GLACKEN: Section 26. It comes up in three places but the relevant expression is essentially “the creation of a right to mine”. So, subsection (1A) deals with certain renewals and, critically, paragraph (c) of subsection (1A) if:
the renewal, re‑grant . . . of the lease, licence, permit or authority concerned creates a right to mine.
In that reference the word “mine” can, for reasons I will come to in a moment, convey “explore” only. Subsection (1) then stipulates other future acts that attract the right to negotiate. Paragraph (c)(i) ‑ ‑ ‑
GORDON J: Where are you now, Mr Glacken, sorry?
MR GLACKEN: Subsection (1)(c)(i).
GORDON J: Thank you. I had always understood that the “or otherwise” was dealing with things like commercial joint venture agreements and the like – this idea of mining lease or otherwise was dealing with the potential of other mechanisms for granting a right to mine.
MR GLACKEN: Yes.
GORDON J: That does not help you, does it, then?
MR GLACKEN: No, because the creation of a right to mine could be the grant of an exploration licence. In Division 3 we are perfectly comfortable with reading “mine” as “explore”. I will come to the substantive reason in a moment; I just want to give the references.
As I said earlier, the grant of a mining lease will convey rights to extract and to search but the provisions turn on not the grant of a mining lease but the creation of a right to mine. So, again, where there is a reference to a mining lease in that subparagraph, there is no reason to read “explore” within the words “mining lease”. One can read the word “explore” within the words “right to mine”.
NETTLE J: But that is a reference to mining lease, so it would necessarily import in that the words, in the case of a mining lease, includes “exploration”.
MR GLACKEN: No, because that is done by the words before the comma.
NETTLE J: Subject to a contrary intention exhibited by those words, yes, but that is an express reference to a mining lease. I come back to something Justice Keane said this morning and I thought you adopted, namely that the extended definition of “mine” goes in in the case where there is a mining lease, or not so?
MR GLACKEN: Yes, but not the word “explore”.
NETTLE J: I see.
MR GLACKEN: That is the second difficulty or question that Justice Gageler put.
BELL J: Your short point on 242(2) is that it picks up where there is a reference to “mining lease” to something that is a mining lease, albeit described in State legislation as an authority to mine or a permit to mine but does not pick up some lesser right, being a right to explore. Is that ‑ ‑ ‑
MR GLACKEN: Yes. As the explanatory material used the expression, where the thing creates similar rights to a mining lease. I have gone through Divisions 2 and 2A to illustrate that there is no need to do what the Full Court did. Division 3, however, in the expression “the creation of a right to mine” can sensibly comprehend only “explore”.
KIEFEL CJ: Why would you not read it consistently with how you have read 242(2)? Why would you not read it as restricted to mining in the sense of the rights a mining lease gives you – “the right to mine” read in that context, which then puts it at cross‑purposes with the definition of “mine”?
MR GLACKEN: That is so for the reference to “mining lease” appearing in (i).
KIEFEL CJ: You cannot just take words out.
MR GLACKEN: But not so for the reference to the right to mine. The substantive reason why the right to mine will include “explore” is in section 26D. The general scheme, subsection (2), is a complicated provision but what it enables is for the parties at the exploration stage to agree on the conditions of the later mining stage, the extractive stage. Ordinarily, your Honours will appreciate, exploration is, if you like, the first phase of any mining project. The extraction will follow once there has been a successful identification of a seam worthy of mining.
In this Division there is a function of reading the word “mine” to include “explore”. But the Full Court, as I said, did not undertake this analysis. There is no function of doing the same for the reference to a mining lease.
EDELMAN J: Can I just test that by reference to 26C(1)(c)(i) again? You accept that the creation of a right to mine in that subparagraph includes “explore” within the extended definition of “mine”, so why would not then the grant of a mining lease which is creating a right to mine also have to include the notion of exploring?
MR GLACKEN: Because of the – perhaps subsection (1) is the better example, that because of this substantive operation that one finds in section 26D, the Act contemplates that there will be a future act that is a grant of a exploration right that will be subject to negotiation and that the negotiation will extend to the latter act of extracting the minerals. So, in that setting we are comfortable with reading “mine” as conveying “explore”.
KIEFEL CJ: But section 26(1A)(c) contains language which is found in 242(2) which refers to a lease, licence or authority that creates a right to mine. So, the right to mine there is the same that we are talking about in 242(2) which you say does not include the right only to explore.
MR GLACKEN: We say there is no function of so including but your Honours will notice there is ‑ ‑ ‑
KIEFEL CJ: The language is the same but you are reading it distributively.
MR GLACKEN: Our distributive construction is only this, that there is a difference in the substantive operations between the past act provisions and the future act provisions. The latter, dealing with future acts, there is a reason to read “explore” into “mining”. The former, the past act provisions, there is no reason or need to read “explore” into “mining”.
Now, this was a subsidiary step in the Full Court’s reasoning because their Honours concluded that whenever one sees a reference to a mining lease that must mean “explore”. It is a subsidiary step because here we are concerned with a reference only to a lease where we say there is no occasion to bring all that baggage in as it is.
BELL J: I am not sure whether I quite understand your construction of 26(1)(c)(i). Am I right in thinking the words “mining lease” there are to be construed in the same way as in Divisions 2 ‑ ‑ ‑
MR GLACKEN: They can, yes, perfectly ‑ ‑ ‑
BELL J: The matter I am raising with you is I had perhaps understood that you were saying in the case of an exploration permit, that would come in under 26(1)(c)(i) as the creation of a right to mine otherwise than by a mining lease as defined in 242(2).
MR GLACKEN: That is so.
BELL J: That is the submission, is it?
MR GLACKEN: Yes.
BELL J: Yes, all right, thank you.
MR GLACKEN: Hence we maintain that the meaning of “mining lease” or a reference to mining lease as not comprehending only exploration is read in the same way across all of the divisions, and because in this division the determinative act that provides the traction for the sections is the creation of a right to mine and that, for substantive reasons, can include a right only to explore.
GAGELER J: Mr Glacken, there are I think two quite distinct arguments here, are there not? One, as you say, that the exploration licence is not a lease; and, second, you say, I think quite distinctly although perhaps it gets intertwined in the way you put it, that the exploration licence is not a mining lease. Is that right?
MR GLACKEN: Yes.
GAGELER J: If you win on the first point, that is, that it is this licence is not a lease, do we need to go further?
MR GLACKEN: No. The Full Court did though.
EDELMAN J: But if you lose on the first point, you only get to the second point because of your argument that even then this is not a mining lease.
MR GLACKEN: Yes, and then if I have to I get to 47B in its context and its manifestation of a contrary intention, hence I started off with saying I had three points. Can I before moving on to the 47B point just give your Honours the reference – and we have put it in our outline – in other instances where the Act refers to the word “mine” alone or with the word “mining”, so “mine” and “mining”, and we have given the references in our outline, I am sorry, at the end of paragraph 8. I will not go to them, but they are instances where one can read those references to “mine” and “mining” as comprehending exploration. There are no references in those sections to “mining lease”, by the way. That then takes me ‑ ‑ ‑
KIEFEL CJ: Your simplest point is that section 47B(1)(b)(i) refers to a lease, it is not a reference to a mining lease?
MR GLACKEN: Yes, and therefore we do not get into this ‑ ‑ ‑
KIEFEL CJ: If that is correct and contextually “lease” there does not include a mining lease, that is an end of it?
MR GLACKEN: Yes. And this second step, the detail, if you like, falls to the way ‑ ‑ ‑
KIEFEL CJ: A much more complicated way home, you mean?
MR GLACKEN: It is. But I have done it for this reason, your Honours. The substantive references to “mining lease” and to the word “mine”, in our respectful submission, help inform the context of 47B which is what we submit, with respect, an absurd result, that something that is treated by an Act as non‑extinguishing precludes the application of a section which is designed to apply non‑extinguishment. That is why I have gone ‑ ‑ ‑
KIEFEL CJ: Well, does that not give – does that not suggest that the words “freehold estate” or “lease” in 47B(1) are very important?
MR GLACKEN: Yes, and the starting point is ‑ ‑ ‑
KIEFEL CJ: And you read “mining lease” in that context?
MR GLACKEN: Yes.
KIEFEL CJ: That might be a convenient time for us to take a morning break.
MR GLACKEN: Thank you.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Glacken.
MR GLACKEN: Your Honours, can I turn to the context of section 47B. We do so because it is our submission that the context is confirmatory of the construction we make of the key provision of section 242(2). In other words, there are good reasons why section 47B does not refer to a mining lease and therefore does not drag in the extension made in section 242(2).
Before turning to the text of section 47B, can we ask the Court to note that by section 237A of the Act, inserted at the same time as many of the 1998 amendments, the word “extinguish” when used in the Act means permanently extinguished so that the native title rights cannot revive after the extinguishing act ceases to have effect. That language reflects the holding of this Court in Fejo v Northern Territory 195 CLR 96, that absent statutory provision, native title cannot revive when the effects of an inconsistent extinguishing act are removed.
A contrary provision is so made in three central provisions of the Act, sections 47, 47A and 47B, dealing with certain kinds of land held or occupied by native title holders are being, in the case of section 47, which was there from the first enactment of the Act, land the subject of a pastoral lease held by or for the native title holders.
Section 47A deals with land the subject of a freehold estate or lease granted for the benefit of Aboriginal people that is occupied by the native title holders, so classically land under the Aboriginal land rights in the Northern Territory, for example.
And then we have section 47B dealing with vacant Crown land occupied by the native title holders. 47B reflects a reversal of the holding and the ratio, if you like, in Fejo. Fejo was the instance where there had been a fee simple grant in 1882. The land was then subsequently acquired for a public purpose that was no longer needed so by the time of the native title claim it was vacant Crown land.
Now, in each instance – in each of those sections – it is necessary that the group continue to acknowledge and observe traditional laws and customs under which they hold rights and interests in relation to the land. So, in other words, paragraphs (a) and (b) of the definition of “native title” in section 223 need to be satisfied. When section 47B and the other provisions do apply, the recognition required by paragraph (c) of the definition is supplied by statutory force that in effect reverses the earlier withdrawal of recognition of those rights.
KIEFEL CJ: Does that mean the prior extinguishment can be disregarded?
MR GLACKEN: Yes. Sometimes “extinguishment” is termed as a withdrawal of recognition and therefore is part of the inquiry in paragraph (c) of the definition of “native title” in section 223. So what these provisions do – they use the expression “disregard”. Another way of looking at it is they reverse the prior extinguishment.
Now, can I turn to the text of section 47B and its structure. In the book of materials it is tab 3 at page 150. First of all, just using the subheadings to the section, to walk through it quickly before drilling down to the more critical aspects presently in contention, subsection (1) obviously deals with when the section applies, and we are concerned with paragraph (b), which are the disqualifying features, so they are qualifications to the application of the section, if I can put it that way.
Subsection (2) provides for the consequences of when the section applies, and that is to disregard any prior extinguishment. Can we point out, your Honours, that that will colour and reverse the effects of extinguishing acts whether they be done validly before the Racial Discrimination Act – in other words, if they were effective at common law. It also covers the effect of extinguishment under the past and intermediate validation provisions of this Act.
They also conceivably extend to any extinguishment effected by a valid future act consisting of a compulsory acquisition. Moreover, that prior extinguishment can operate both in relation to partial extinguishment, which is the facts of this case. There had been an historic extinguishment of a right of exclusive possession by an Act that predated the Racial Discrimination Act. It can also operate to disregard entire extinguishment, say, for example, if there had been extinguishment by freehold grant of all native title. The next point to notice about the structure is subsection (3), which complements subsection (2).
GAGELER J: Mr Glacken, before you go to that, can I go back to subsection (2). When it says:
For all purposes under this Act . . . any extinguishment . . . must be disregarded -
do you only get to that point – that is, all purposes under the Act – through the definition of “native title” in section 223? Do you get there by disregarding the extinguishment for the purpose of that definition or is there additional work that is done by subsection (2)? I may not have made that a very clear question.
MR GLACKEN: Subsection (2) does it itself independently of the definition of section 223. I went to section 223 to conceptualise what subsection (2) does. In other words, what was once a withdrawal of recognition is now supplied by force of statute. Just on that question, can I point out that it is for the purposes in relation to the application and the application is the claimant application. There is authority of a single justice of the Federal Court in the Griffiths litigation but it does not have application for a compensation application, to make that clear.
There is another operation that I should point out, section 61A of the Act prevents what might be called repeat claimant applications if there has been a previous determination of native title, negative or positive – sorry, I will withdraw that - and prevents applications to areas covered by previous exclusive possession acts which are extinguishing. When these sections, that is, 47, 47A or 47B apply, it is possible to make that application despite those primary provisions.
Now, subsection (3), as I said, complements subsection (2) and that is that if the claim is made out and the section applies and there is a determination that native title exists, the determination will provide that the non‑extinguishment principle applies to the creation of any prior interest in relation to the area. That is in subsection (3)(b). That would mean any interest created up until the time the application is made or possibly up to the time of judgment.
GORDON J: Can you just explain to me how you see that practically working? So, assume for the moment that you are – the Full Court was right in the way in which it dealt with 242 and 47B(1), how does 47B(3) operate in those circumstances?
MR GLACKEN: If the Full Court is correct then this section is not engaged. That is what we say is a slight oddity of it because it is not being engaged by an event that is treated otherwise as non‑extinguishing. That is the context that I will come to in a moment. Now, the application of the non‑extinguishment principle to what were extinguishing acts complements the direction in subsection (2) that their extinguishing effects are to be disregarded, but, of course, those extinguishing acts are otherwise treated as valid.
As for when the section applies, could I go back to paragraph (b) of subsection (1), which are the negative conditions or qualifications as to when the section cannot apply and there are three in (i), (ii) and (iii). Now, (i) is the one with which we are presently concerned being a “freehold estate or a lease”; (ii) is when the land is covered by a reservation, dedication, et cetera, under which the land is to be used - in old‑fashioned terms, a setting apart and dedication of Crown land, although the Full Court considers it might involve more and I will come to that in a moment.
Then, (iii) is a resumption process defined in subsection (5)(b), essentially a compulsory acquisition of all interests. Those three features have a quality about them of extinguishing acts, and I will come to this in a moment.
Now, can I make these points as to why the reference to a lease in (i) does not comprehend an exploration licence. The first is that the qualification in subparagraph (i) of whether the area is covered by a freehold estate or lease connotes a proprietary estate or interest in the land, on the face of things, consistent, for example, in the reflection of a definition of “interest” as a legal or equitable estate or interest and it connotes that estate or interest in land, putting aside particular definitions, in a context where there are two features, which we say are important.
The first is that each qualification in (i), (ii) and (iii) goes to the state of land as vacant Crown land – in short form, land that is unalienated or, in Western Australia, the Land Administration Act terms it as unallocated land. The second feature is that the conditions or qualifications, if engaged, have the effect of continuing prior extinguishment and the conditions have, as I have said, the quality of an extinguishing act.
Now, in contrast, a licence to explore does no more than confer an authority or permission to go onto land and to search for minerals reserved to the Crown. It confers no interest in the land or in the minerals, except for testing purposes. We collect the statutory provisions in the earlier case law in our reply submissions, paragraph 7, and that includes what Justice Windeyer said about what used to be termed “authority to enter land” in Wade 121 CLR 177 at 189.
KIEFEL CJ: Mr Glacken, you were going to explain not just why section 47B(1) does not comprehend a licence to explore - you started earlier by saying the reasons why it does not refer to a mining lease as such.
MR GLACKEN: They have equal application. The submission I am making now ‑ ‑ ‑
KIEFEL CJ: I thought you were going to explain to us why – or a lease is not a reference to a mining lease. You do that textually, textually is it not a reference to a mining lease.
MR GLACKEN: Yes, and this is ‑ ‑ ‑
KIEFEL CJ: You say that is because a mining lease is not comprehended by section 47B(1)(b)(i) because?
MR GLACKEN: Because it connotes a proprietary estate or interest in the land and it does so against a backdrop of those two features that I just mentioned being concerned as a definition of Crown land and a mining tenement does not affect the status of land as Crown land.
KIEFEL CJ: But what about a mining lease as distinct from a mining tenement, an authority to explore?
MR GLACKEN: The same.
KIEFEL CJ: No interest in land.
MR GLACKEN: No.
EDELMAN J: What about a lease that is declared to be or – sorry, a licence that is declared to be or described as a lease within 242(1)(c)?
MR GLACKEN: If it be – I took the example earlier – say a pastoral lease, then there is no extension of a licence or authority by the Act in the case of a pastoral lease. A pastoral lease – and certainly Meneling Station 158 CLR has some discussion about the context of grazing licences – can connote, if you like, some interest in the land of a usufruct – the pastoralist has his cows grazing on the land. That is not the same with a mining tenement because of the vesting of minerals in the Crown.
KIEFEL CJ: Is the pastoral lease – the problem with the pastoral lease cuts across any notion of exclusive possession?
MR GLACKEN: Yes.
KIEFEL CJ: You say that does not apply with the mining lease?
MR GLACKEN: No. Each of them can have an extinguishing ‑ ‑ ‑
KIEFEL CJ: Feature.
MR GLACKEN: If your question is about the extinguishing quality ‑ ‑ ‑
KIEFEL CJ: Yes.
MR GLACKEN: Each can have an extinguishing quality of that kind.
KIEFEL CJ: But you say 47B(1) requires more?
MR GLACKEN: Yes. One would not start – by those words alone one would not read a pastoral lease within the expression “a freehold estate or lease” in the context of Crown land. Generally speaking, Crown land remains Crown land if held under pastoral lease. As I said, these are the contextual points without regard to the specific definitions of “lease”, et cetera.
KIEFEL CJ: You say the reference to “a lease” in 47B(1)(b) is specifically chosen to identify a full interest – an interest, a legal interest in land and a choice has been made not to include pastoral leases, mineral, mining leases – all of the other matters that you have referred to elsewhere in the Act.
MR GLACKEN: That is the starting point, yes.
KIEFEL CJ: Because it draws a distinction between them.
MR GLACKEN: Yes.
KIEFEL CJ: That the Act draws a distinction generally between a lease and other lesser leases.
MR GLACKEN: In the context of this section, yes.
GORDON J: Just explain to me why then it would not adopt the language that it adopts elsewhere ‑ I think I have asked you this question before, Mr Glacken, so I apologise – “lease (other than a mining lease)”?
MR GLACKEN: Because it is not dealing with the potential of extinguishment. In those references there is a specific drafting exclusion when there is a reference to a lease, to make sure it does not include a mining lease, because the drafter wants to make sure that something is not brought within the word “lease”. There is no need to have that drafting technique here.
GORDON J: But expect there might be, given 242. That is the question.
MR GLACKEN: I mentioned that the grant of an exploration licence over Crown land, as with other mining tenements, does not affect the character of the land. It is vacant Crown land. Your Honours have the definition of “unallocated Crown land” in the materials: Land Administration Act, volume 2, tab 4. I will not go to it but I apologise that the definition of “mining right” has been omitted from the materials. The effect of the definition of “unallocated Crown land” is that it includes land in which there is no interest other than native title and it defines “interest” not to include a mining right. We have omitted the definition of “mining right” but it basically means a tenement under the Mining Act or the Petroleum Act.
The context of these qualifications in paragraph (b) is that if they are engaged they will preclude the application of the section. In a Federal Court case of Northern Territory v Alyawarr – I will not go to it but it is 145 FCR 442 at paragraph 187 – a Full Court described the qualifications to the application of section 47B of serving a policy that in suitable cases prior extinguishment should be continued in force, but having regard to the beneficial purpose of section 47B one would not read the qualifications more widely than is necessary to serve that policy.
In general – I can only submit in general because of one feature I will come to in a moment – consistent with that policy, the qualifications themselves involve Acts that are in the nature of extinguishing acts: the alienation of land under (i); likewise (ii), the setting aside of land if coupled with a vesting of an estate; and, (iii), being an acquisition of land.
I can only say “in general” because (ii) may or may not have that extinguishing quality; it depends upon the arrangements for the dedication of vesting. That was discussed, for example, in Ward, about the Western Australian Land Act at paragraphs 240 and 241 in Ward. Also the Full Court – a point I will come to in a moment – treats (ii) in an expansive way as to possibly include a licence to explore.
That aside, in general, reflecting a policy of continuing prior extinguishment in suitable cases, the qualifications have that quality of acts that are competing with native title in the relevant sense of being inconsistent with the recognition of native title. The policy or design of the Act, as reflected in the considerations stated in the preamble, is that where appropriate native title should revive after validated acts cease to have effect, these sections give effect to that overall design of the Act as part of the main object expressed in section 3(a) to provide for the recognition and protection of native title.
Now, therefore, we say to conclude as the Full Court did that a current non‑extinguishing event should preclude application of a section that seeks to reverse the consequences of past extinguishing acts jars with that legislative design. There is a separate and further point flowing from the Full Court’s reasoning on subparagraph (ii). That uses the language of “a permission or authority” and then goes on to say “under which the land is to be used for a particular purpose”. That language is apt to cover a licence to use land for a particular purpose.
The Full Court in the Ngurra matter – I will give the references but it is appeal book volume 1, pages 81, 84, paragraphs 31 to 38, reasoned that an exploration licence can be within subparagraph (ii) but on the facts of the case it had not been shown that the land is to be used for that particular purpose. If that is so and subparagraph (ii) covers a licence of that kind then the section works perfectly fine without reading the reference to “lease” in subparagraph (i) as including an exploration licence.
To so read an exploration licence as a lease in subparagraph (i) as well as subparagraph (ii) is, in our submission, to give the qualification a wider operation than is needed for the purpose of the qualifications as explained and identified in the Full Court case of Alyawarr, so we adopt that analysis.
BELL J: Acceptance of that rather runs counter to your submission respecting the object of 47B and the incongruity of extending past extension.
MR GLACKEN: It does and we put it as an alternative. The final point we would make is that section 47B, as with the companion provisions of 47 and 47A, caters for a situation where Aboriginal people continue to occupy their traditional lands under their traditions and customs. It is plainly a beneficial object that reverses the holding in Fejo that once extinguished always extinguished.
The facts in Fejo illuminate the operation of the section where a long‑forgotten paper title of a grant in fee made in 1882 with the land being resumed in 1927 for a purpose no longer needed in 1980 demonstrates the practical importance of the section where – and I should say, the facts are outlined in Fejo 195 CLR 96 at paragraphs 8 to 9. Where land reverts to vacant Crown land, this section reverses the holding of Fejo that once extinguished always extinguished.
It is a very blunt, if I could put it that way, parliamentary bludgeoning, if you like, of reversing what has been held to be the effects of extinguishment, as I said, consistent with the preamble that wherever appropriate, native title should revive. The classic example is mining interests. That is one of the central tenets of the Act.
Now, having regard to the text of section 242(2) and the debate that we have had about should be read strictly, as we submit, that it is in the case only of references to a mining lease or should it be read more loosely, as the State suggests, that in the case of a mining lease it includes a licence, having regard to that feature, having regard to our submission as to the operation of the word “mine” in Division 3 in contrast to the operation of the words “mining lease” in Divisions 2 and 2A, et cetera, there would seem, perhaps as illustrated by the difference of opinion in the courts below, a constructional choice or some ambiguity as to whether in effect section 242(2) extends to an indirect rather than a direct reference to a mining lease.
That ambiguity, we would say, would mean that the question is left open, then one is provided with a choice of the kind addressed in the early land rights cases that we have cited, but I note that more recently this Court considered the line in New South Wales Aboriginal Land Council 260 CLR 232 in the joint reasons at paragraphs 30 to 33. We include in that line Toohey’s Case 145 CLR 374 and Jurlama 158 CLR 426.
The point may be put this way, that one would not read the qualifications to the application of section 47B any wider than is necessary to accommodate the purpose of continuing prior extinguishment by acts of themselves of that nature. That is what we perceive to be the content of the operation of the qualifications. As I said, the constructional choice is not dissimilar to that addressed in the older cases in the context of the Land Rights Act which enabled claims to unalienated Crown land or land where the only interests were held on behalf of Aboriginal people.
Ultimately, may we say it might come down to the proposition that it is improbable that the recognition of native title by the overall design of the Act could be departed from without that being expressed in irresistible clearness, and that was the view that commended itself to Justice Barker at first instance ‑ appeal book volume 1, page 23, paragraphs 57 to 58. They are the contextual points that we wish to make.
GORDON J: Can I raise one other section with you just so that I am clear, and this is dealing with the validation of intermediate period acts. In section 21(3) the phrase “a grant of a freehold estate or a lease” – this idea of what you would describe as – I think the first point you said was that it was dealing with land as vacant Crown land which has either been unallocated or unalienated.
MR GLACKEN: Yes.
GORDON J: It expressly excludes from it “other than a mining lease”. It seems odd to exclude something that is not included. That phrase appears in the sense that deliberate choice appears to have been made throughout both Divisions 2A, 2B and then, again, in 232, as well as in 46 between this idea of a freehold estate or a lease comprising a mining lease and then, when they seek to exclude it, it is taken out.
MR GLACKEN: Yes. Can we say two things. One is that my submission as to 47B is that – I think I used the expression “prima facie” or “it connotes” ‑ ‑ ‑
GORDON J: You did.
MR GLACKEN: ‑ ‑ ‑ a proprietary estate or interest in the context of 47B because the context of 47B is defining when land is Crown land or not Crown land. That is a very different context to the Act’s approach to extinguishment – and I think I also said that submission was putting to one side the specific definitions – by references to a lease, one picks up 242(1)(c). Your Honour has taken me to an example of what I call the drafting device of the drafters saying, “Let us be clear if there is a reference to a lease, in the context of extinguishment I am not including a mining lease”. Now, there is no need to have that caution in 47B because of the much different context. If your Honours please.
KIEFEL CJ: Yes, Mr Solicitor.
MR THOMSON: May it please the Court. We would choose to start with section 47B rather than the definitional provisions. The reason is because definitional provisions have to be read in the context of the legislative intention of the substantive provision which needs to be construed. Of course, that is said in Kelly’s Case and also in the passage in Gibb that my friend took you to, at page 635.
Section 47B enacts a statutory principle, which is a principle that requires prior extinguishment of native title to be disregarded in respect of land which is the subject of the native title application. The principle does not apply to land within three classes at the time when the application is made and those three classes of exempt land are land covered by freehold estate or a lease, Crown reserves and similar reservations, and land subject to a resumption process.
The proper construction of section 47B requires analysis of the statutory language but analysis which occurs, understanding the purpose and context of section 47B. Context and purpose obviously inform the entirely of the construction process and are not to be left to the end. In relation to the subject matter of section 47B, the land to which the principle of this regarding prior extinguishment applies is not expressly defined, save by exclusion of classes.
The three classes of land to which the principle of disregarding prior extinguishment does not apply are classes in which another person has interests which would compete with, or affect, the traditional rights which would otherwise be recognised if the principle in section 47B applied. The question which the Court is asked to determine is whether this characteristic of the excluded classes, which I have just referred to, assist in understanding the statutory intention in relation to the nature of the land to which the principle positively applies.
The class of land to which section 47B positively applies is indicated by the heading to section 47B. The heading describes the land to which the provision applies as “vacant Crown land”. Now, that is obviously part of the Act itself which is able to be part of the statutory construction process by virtue of section 13 of the Acts Interpretation Act. And we say that the heading indicates that section 47B was only intended to apply to vacant land, which is not the subject of any competing rights, which would affect any native title which would be recognised if the principle of disregarding the extinguishment is applied.
Now, there is an important point about the operation of section 47B which must be recognised, and that is that its operation applies at a single point in time, that is, namely, when the application for native title is made. And we say that that indicates that section 47B is not concerned with the ongoing interaction of traditional rights and competing interests in land after that particular point when the test is applied and we give the example of a pastoral lease. The pastoral lease, we would say, is a lease which is clearly a lease for the purposes of section 47B(1)(c). Our friends do not seem to accept that, but I will come back to that in a minute.
The point I am about to make applies equally to any form of a lease. Even though the lease will expire, section 47B does not provide that prior extinguishment should be disregarded after the relevant lease interest expires. The principle in section 47B just simply never operates. And, that is so, even though the lease may cover a large area and in the case of a pastoral lease may only involve a minor use of the land. In effect, what our friends want is to say that section 47B in it has something akin to the non‑extinguishment principle which applies to exploration tenements because what they would like to be in a position to say is that once the exploration tenement has expired then the native title can then, once again, be “revived”, to use their word.
The appellant’s distinguished pastoral leases, as they say – but they are not in the same category as mining leases, as we understand it, perhaps because they provide an interest in land ‑ we would suggest that that is not actually the test that the statute applies and I will come to precisely how section 47B(1)(c) should be construed in a minute. But we would make this point, and that is that a mining lease is within the definition of a lease for the purposes of the statute, at least according to the decision in Ward, because of the operation of section 242(1)(c), that is because the mining leases in WA, just to say that they are leases, and, therefore, at least to that extent, the definition of “lease”, on its face, would pick up a mining lease.
But, the reason our friends say that a mining lease and a pastoral lease, and other leases which do not confer an interest in land are not within section 47B is because of this question about whether there is an interest in land or not. If you understand that the purpose of the section is to deal with questions about whether you regard or disregard prior extinguishment, the test should be something relevant to the question of extinguishment and the question then is whether there are rights that might compete with, or affect, traditional native title as opposed to whether there is an interest in land.
So, we suggest that the idea that you construe section 47B(1)(c)(i) as adopting a test of interest or no interest in land, is inconsistent with the purpose of section 47B(1)(c)(i). It is also inconsistent with section 47B(1)(b)(ii) which refers to permissions or authorities. And, we would just point out, in that context, that our friends mentioned something about the possibility of an exploration licence being within section 47B(1)(b)(ii) but that in the particular case the Full Court, in this instance, did not think that it was.
The decision of a five judge Full Court in the Banjima People in Western Australia clearly says that an exploration licence is not within (b)(ii). The reference to that is [2015] FCAFC 84.
GAGELER J: Why is it not according to that authority?
MR THOMSON: Because it is not for a public purpose which is one of the conditions that the reservation has to be for. The relevant paragraphs are from 87 through to 99.
GAGELER J: How did they deal with “particular purpose”?
MR THOMSON: They referred to what was said in the Alyawarr Case. In the Alyawarr Case a narrow construction of 47B(1)(b)(ii) was adopted and that was in relation to the proclamation of a town site and the court there said that it is sufficient. So that the mere proclamation of a town site which might comprise largely private property holdings by lease or otherwise does not define “public purposes” or a particular purpose within the meaning of section 47B(1)(b)(ii). It was really upon the basis of the narrow construction that I have just mentioned of section 47(1)(b)(ii), the concept of the public purpose, so it was not a public purpose for the purposes of an exploration licence.
GAGELER J: Anyway, you accept that holding, you rely on that holding?
MR THOMSON: Well, for the purposes of the argument that is presented here, what is suggested by our friends is that section 47(1)(b)(i) – I apologise, I have the section in front of me – the test which is applied as a bright line is whether or not there is a proprietary interest or estate in the land and that the submission that we make is (1)(b)(ii) shows that you can have permissions or authorities.
I simply referred to Banjima because there was the suggestion that if there is a holding against us on (b)(i), that we might still come within (b)(ii). At present, that is not the case but really for the constructional issue, the point that I am making is that the bright line of an “estate or interest in land” is not supported by (b)(ii) because of the reference to “permission or authority”.
BELL J: Mr Glacken put an alternative submission with respect to 47B(1)(b)(ii). His principal submission, as I understand it, was concerned with the asserted incongruity of the construction for which you contend having regard to an exploration licence attracting the non‑extinguishment principle.
MR THOMSON: We would adopt what his Honour Justice Nettle said, that if there is such incongruity, it applies equally with a mining lease. It also applies equally with any other lease that is the subject of the operation of section 47B(1)(b)(i). The incongruity that is mentioned is the fact that something which is in itself a non‑extinguishing act may mean that you cannot have regard to native title because of the disapplication of the provision of section 47B.
We say that as a matter of understanding the purpose of section 47B that what it was intended to do is to say that if at the time that the application is made there are no rights that would compete at all with the native title rights which could be seen if you disregarded the prior extinguishing event, then it operates in a sense to revive the native title. But if there are going to be competing rights, it does not.
That, we say, is the bright line and that is a line that makes sense, because the idea of disregarding the prior extinguishment of native title is that in circumstances where nobody will be affected if that prior extinguishment is disregarded, then you are in a position where there is no harm at all to anybody if you then recognise it. But if somebody will be affected by it, the question then arises, why should a person with rights over the land be affected by native title which has in fact been extinguished?
GAGELER J: That involves reading (i), (ii) and (iii) as covering the universe of all potentially competing rights, which is a pretty ambitious reading, I would have thought.
MR THOMSON: Well, your Honour may be correct, but at the very least we say that it is a purpose which underpins the construction of lease.
GAGELER J: It is a purpose that you can only infer, if at all, from the language used, is it not?
MR THOMSON: Yes.
GAGELER J: You are asserting the purpose and you are asserting its basis as lying in the language of the section.
MR THOMSON: That is right, and then that will inform the proper understanding of “lease” and whether it then picks up a mining lease and so forth.
GORDON J: Another way of looking at it is to recognise that if one puts aside the past extinguishing acts, section 47B is identifying in effect a field of exclusions, that is, it is identifying with precision those competing interests which are to be upheld, and the three categories of exclusions you have identified have in effect one common factor, that is, at least in some part they have some aspect of Crown conduct in relation to (ii) and (iii), it would appear, and then the first is driven back, is I think the way you put it, to the definitions of “lease” and other interests by reference to the definitional sections.
MR THOMSON: That is right, having in mind that in circumstances where the heading says “Vacant Crown land” and clearly the types of interests in (i) are private interests that would compete with native title, whether or not there is an estate or interest properly said in the land itself and that the principle is about extinguishment rather than related to proprietary interests, that you would construe the words “freehold estate or a lease” by reference to whether or not the nature of those interests create rights that would compete with the native title.
NETTLE J: If the native title were revived when there was in existence a mining lease, what would be the effect upon it?
MR THOMSON: It would mean that the mining lease would nevertheless still prevail but that once it expired the principle of non‑extinguishment would apply and that the native title would revive, if you like, after that.
NETTLE J: So it revives after it is ‑ ‑ ‑
MR THOMSON: That is right. That was the point, though, that I was making about the singular point of the test in time. That is applied by section 47B.
NETTLE J: Equally so in the case of exploration.
MR THOMSON: In the case of any form of lease that would be covered.
NETTLE J: It holds it over until it is expired?
MR THOMSON: That is right. The other effect might be, although we accept that it has been conceded by our friends in this case, that where there is in 47B(2) a reference to disregarding native title “for all purposes under this Act”, there might then be a compensation application. They say that would not follow because it was in relation to the application. We would accept that that is the right way of looking at it, but if somebody were to turn up and say that there would also be a compensation effect while the mining tenement was still on foot then you would have this problem, that somebody would be paying compensation for interfering or affecting traditional rights which have in fact been extinguished but you are only now having regard to by reason of section 47B.
GORDON J: In your answer to Justice Nettle, is that consistent with subsection (4), which deals with renewals and extensions of leases ‑ that is, this question of revival?
MR THOMSON: Yes, because a lease at some stage will have to come to an end. So, at whatever point it comes to an end the principle of non‑extinguishment if there is – if the exploration licence or whatever lease it is is not – does not mean the land is excluded from the operation of section 47B, it would then mean that there is an act which is the grant of the lease which is subject to the non‑extinguishment principle and then the native title will be recognised upon the expiry of the lease. It would not interfere with the operation of the relevant rights under the lease.
GORDON J: Thank you.
MR THOMSON: The point applies to whatever lease it is, that is, within the terms of section 47B(1)(b)(i) - some form of lease has to be.
GAGELER J: Unassisted by any definition in the Act – you are going to take us to 242 in due course – it would be natural to read subparagraph (i) as being concerned with circumstances where there is a right in someone else to exclusive possession of the land in question. It would be natural to group (ii) and (iii) together as covering circumstances in which the land in question has been set aside by the Crown for a particular purpose or public purposes, which is a much narrower target than the idea that the section is concerned simply with land where there is a complete absence of competing rights.
MR THOMSON: Yes. Perhaps I only need to go as far as your Honour has gone for this case because the thing about this case is it relates to exclusive possession rights. The particular tenements in this case had a partial extinguishing effect. The partial extinguishing effect was in respect of the right of exclusive possession. But if I can put it this way, we are suggesting that the idea of vacant Crown land is not drafted into the statutory language but that it informs, as part of the purpose, how you would interpret “lease”.
So the idea that it would then be used to interpret “lease” as meaning some form of instrument which gives rights which then compete with them, may have a partial or fully extinguishing effect in respect of native title rights is consistent with the purpose of the provision.
So can I put it like that instead of specifically adopting that it must mean exclusive possession. It is an instrument which might create rights that are then in competition with or affect native title rights. It may be that it only has a partial effect upon them, or it might have a complete extinguishing effect on them. Does that assist?
GAGELER J: I think so. Thank you.
MR THOMSON: Can I, while I am on the question of the operation of section 47B, make this point that if land that is subject of a mining lease is exempt but it does not exempt land covered by other forms of mining tenements, it may end up treating differentially production leases, production licences and exploration tenements.
We say that that would be an odd result for a number of reasons. The first is that there has been no distinction expressly drawn between mining production tenements and exploration tenements for any purpose in the Act itself. The supplementary explanatory memorandum for section 242 expressly suggests that there is no distinction.
The second thing is that, as we had understood it, and I am not sure if I am correct saying this after hearing the oral argument, but a mining production tenement which is called a licence or authority, even if it is in substance the same as a mining lease, is not something that the appellants would say is covered by section 47B(1).
Now, it might be that that is only on their alternative argument. The other thing is that if a mining lease is within the terms of section 47B(1)(b)(i) but an exploration licence is not, a mining lease gives rights which more greatly interfere with the land but there would be no compensation payable. There is this possible spectre of compensation out there but I leave that just as a point that is potentially going to be argued at some other aspect – or at some other time if the construction advanced by our friends is adopted.
Can I then, having tried to elaborate upon the subject matter and the actual operation of section 47B, come to the statutory language of the definitions? Section 242(1) provides an inclusive definition of “lease”, given that section 241 itself says that:
This Division contains definitions relating to leases.
Then, section 242 starts with the statement that:
The expression lease includes –
and then throughout the rest of the division there are particular forms of lease defined. We would suggest that the inclusiveness of 242(1) is intended to allow that definition to pick up everything that falls within the concept of a lease as it is then described subsequently in the following provisions.
GAGELER J: Mr Solicitor, does the inclusiveness of the definition indicate that it extends the ordinary meaning of “lease”, that is, if you have a legal right to exclusive possession for a term is that a lease without needing to go to the terms of section 242(1)?
MR THOMSON: I think that is correct but the inclusiveness of the definition, we think, is also a statutory drafting technique intended to allow the term “lease” to also be picked up by the things that are particularly called “leases” subsequently. Common law leases as well as the things that are specifically mentioned in the following provisions and then also the things that are specifically extended in (a), (b) and (c).
GAGELER J: So, if you find a right conferred pursuant to a State’s statute that is a right to exclusive possession for a term then it is a lease without needing to get to (1)(c), that is, it does not matter what it is called, it is a lease.
MR THOMSON: Yes, that is right; that is correct. It might be helpful for us to show you what the High Court said, particularly in relation to (1)(c), in relation to mining leases in Ward. It is contained in the book of authorities and it is at page 871, behind tab 17.
There was a question there about the status of a mining lease under the Mining Act (WA). In paragraph 298 there is a reference to the definition of “mining lease” in 245 of the Native Title Act and then there is a further reference to the definition of “lease” in 242. Then the Court said in paragraph 299:
It should be apparent that the mining leases granted pursuant to the WA Mining Act at issue in this case fall within this statutory definition.
So at least for the purposes that were being considered in Ward, which our friends say are different to the purpose of considering the operation of section 47B, a mining lease under the WA Act is to be treated as a lease. And we would say that it would be a very odd and differential application of that definition if section 47B(1)(b)(i) therefore did not pick up a mining lease in WA by reason of it falling within section 242(1)(c).
And, of course, then that drives the inconsistencies in the construction that our friends have propounded, if you have to accept that a mining lease is within it but not a mining production tenement, which is not called a lease, and then perhaps exploration tenements.
Can I then make this point about section 242(2). There is a question in the construction of section 242(2) about whether the introductory words which say that:
(2) In the case only of references to a mining lease –
that means in the case only of a mining lease which is a lease or whether it means in the case of textual references to a mining lease, but the constructional question probably does not need to be resolved for this reason. If it means the second – that is, in the case only of textual references to a mining lease – then the first textual reference to a mining lease that immediately follows is in section 245. So that it could not be the case that section 242(2) was intended to have an operation in respect of textual references to a mining lease everywhere, except in section 245 and that seems to be the fundamental basis on which my friend’s submission rests.
GAGELER J: Mr Solicitor, does a mining production tenement in Western Australia confer a right to exclusive possession?
MR THOMSON: Only for mining purposes. It is in section 66 of the Mining Act. I can take your Honour to that.
GAGELER J: It is section 66 and it is exclusive possession?
MR THOMSON: For mining purposes.
GAGELER J: Yes.
KEANE J: Did not this Court hold in Brown that it does not confer exclusive possession ‑ ‑ ‑
MR THOMSON: For any purpose.
KEANE J: ‑ ‑ ‑ for any purpose?
MR THOMSON: Yes, that is right. If you want to look at section 66, it is at tab 5.
EDELMAN J: It is the principle that emerges from TEC Desert, is it not?
MR THOMSON: I beg your pardon?
EDELMAN J: Is it not the principle that emerges from TEC Desert?
MR THOMSON: I think, in part, that is right. I think TEC Desert also said that there was not an interest in land. I think that is part of our friend’s arguments but, we say, that that is not relevant because it creates rights that interfere with or compete with traditional native title rights.
GAGELER J: Section 66, I think, is the exploration licence provision.
MR THOMSON: I am terribly sorry. Sorry, it is section 85.
GAGELER J: Thank you.
MR THOMSON: It is on page 353.
GAGELER J: Thank you.
KEANE J: Mr Solicitor, in relation to the point you have just made about section 242(2) ‑ ‑ ‑
MR THOMSON: Yes.
KEANE J: ‑ ‑ ‑ and 245 why would it be odd to read 242(2) as being concerned with references to a mining lease in the non‑definitional operational provisions of the Act, rather than to mining lease in a provision that defines the term in 245?
MR THOMSON: Well, for at least two reasons; one, that there is no such express exclusion in 242(2) as to how it applies, it applies throughout, and the second reason is that section 242(2) is extending upon the concept of what is a lease. So, it is in section 242, not in section 245 and if it had appeared in section 245 then you might have thought that it was an add‑on to section 245 in specific circumstances but presumably the legislature appreciated that this is contained in a different section and therefore the textual reference will be picked up by the operation of 245 and that was designedly so. So, if that is correct, it would lead to section 245 being read as we have set out in paragraph 10 of the oral outline of argument that we have handed up this morning.
EDELMAN J: Unless, of course, one reads “references to” to mean a shorthand for “declared to be” or “described as”, then it would not naturally pick up the definition of “mining lease” because it would not need to. It would just be concerned with the case of something that is declared to be or described as a mining lease and that would also then explain why subsection (2) is in 242 because it is really then just expanding a very particular circumstance that goes beyond 242(1)(c).
MR THOMSON: The way that your Honour puts it is, first, not consistent with the supplementary explanatory memorandum which says that the idea of the amendments introduced by section 242(2) and 245 is to ensure that all types of mining tenements are treated equally. Your Honour is drawing out a distinction which does not have a firm foothold in the statutory basis and is in fact not supported by the explanatory material.
So, even if it is construed by saying that it needs textual references, we say that it is then incorporated immediately into section 245 and it has the effect that is set out in paragraph 10 which means that a mining lease is defined as a lease and therefore also a licence or authority that permits the lessee and, by reason of section 243(2), the licensee or authorised person to use land or waters covered by the lease solely or primarily for mining. So, section 242(2) and 243(2) both feed into that definition of mining lease.
We also then make the submission ‑ because that answers the first constructional question and we say that the answer that is provided by that constructional question is entirely consistent with the purposes of section 47B, because 47B deals with, we say, the situations where the rights that are conferred by the mining tenement may compete with or interfere with the underlying traditional title which would be recognised if section 47B had an effect.
That also provides the answer, we say, to reading the Act consistently about the definition of “mining” in section 245. Section 245 clearly should be read with section 253, which defines “mine” throughout the Act, and “to mine” means or includes exploration.
BELL J: Mr Solicitor, before we get to 253, could I just understand your submission with respect to the work done to the references to mining lease subheading and the prefatory words in (2)?
MR THOMSON: At the very least, when it says “references”, if it means textual references – that is, wherever the words “mining lease” appear somewhere in the Act – then the first place that they appear immediately after this definition is in section 245. Therefore, when you read 245 with 242(2), it has the effect that a lease other than an agricultural lease, a pastoral lease or a residential lease or a licence or an authority, that permits the lessee or, because of section 243(2), the licensee or authorised person to use the land or waters covered by the lease solely or primarily for mining.
BELL J: Mr Solicitor, if you do not understand 242(2) as applying to the definition of “mining lease”, do you have an alternative submission respecting the prefatory words?
MR THOMSON: Yes. The question is whether the prefatory words mean in the case only of textual references or in the case only of references to a lease which is a mining lease, so that what it is doing is identifying a subset of leases that this could apply to, so that where there is a reference to a lease, to the extent that that reference picks up a mining lease, then it also incorporates this directly and we would suggest that the reason why you would read it like that, in the context of section 47B, is because things such as licences or authorities can provide rights that could have a partial or full extinguishing effect.
BELL J: On that alternative view it would suffice if sub (2) read “in the case of a mining lease”.
MR THOMSON: Yes.
GAGELER J: Mr Solicitor, you are concerned, you say, in section 47B with competing rights.
MR THOMSON: Yes.
GAGELER J: If the section applies, what harm is done to those competing rights?
MR THOMSON: The answer to that question is that if the section applies – can I take a step back. When we talk about competing rights I mean rights that may have an extinguishing effect if the prior extinguishment of native title is not disregarded. If the prior extinguishment of native title is disregarded but there are competing rights that affect it by virtue of a valid act which involves the application of the non‑extinguishment principle, the act will no doubt still involve the person who has benefited from it, such as the holder of the exploration tenement, having the right to, if you like, override the native title rights and, at the time that the exploration licence expires, the native title rights, if the extinguishment is to be disregarded, will then revive.
In that sense and if you leave aside the questions of compensation, there is no harm done. But the answer is that clearly, in some respects, the provision is intended to cover leases which will expire at some point in time, and the test is applied at a single point in time. Therefore, the effect will be equally in that sort of a case as well that the prior extinguishment is regarded, even though the lease will expire, and that there will never be a revival of the native title rights which would have underpinned it if the principle had applied.
KEANE J: Mr Solicitor, given that there are rights and there are rights, and we know that in this context that truism is truer than in almost any other context, why would it not be a rational and reasonable intention readily attributed to the Parliament that rights in relation to ordinary titles such as freehold titles – rights to explore, for example – which can subsist with freehold title, for example, authorities to prospect, which it has been decided by the legislature can subsist with freehold title because, obviously, they are less intensive in the use that they authorise, why would it not be reasonable to take the view that native title being treated as the equivalent of freehold title can also subsist with rights to explore? Why would there be this necessary antinomy?
MR THOMSON: Your Honour started with the proposition that there are rights and rights. In this case, we are talking about extinguished rights and so this is a provision which effectively sets aside the extinguishment. So when you start with the proposition about there being rights, what we are talking about here are extinguished rights and whether they are to be revived.
KEANE J: In respect of persons who are actually in occupation of the land.
MR THOMSON: Yes, and we would suggest that the principle that informs this, as is indicated by the idea of vacant Crown land, is that so long as no other person is on that land who has rights that would be affected by recognising the revival of the extinguished rights, then there is no difficulty. But if there is a difficult – if there is such a person upon the land, then because the extinguishment has occurred, the statute is not going to reinvest it with any vigour.
KEANE J: However exiguous those rights may be?
MR THOMSON: So long as they come within the definition of “lease” or “freehold estate”. I cannot take it further than that.
NETTLE J: Is compensation payable on Justice Keane’s hypothetical? That is to say if the mining lease exists and the native title is revived, does the mining lessee have to pay compensation to the newly acquired native title holder?
MR THOMSON: Well, that is a question that depends upon whether it says – when it says for all purposes under this Act, in relation to the application that, in relation to the application, limits all of the purposes under the Act. Now, I am certainly not going to suggest to the Court that it would generate decisively a compensation liability, but what I would say is that ‑ ‑ ‑
NETTLE J: It cannot be excluded.
MR THOMSON: Precisely. And that would create a very odd situation where the tenement holder might have to pay compensation for affecting extinguished native title rights which then the statute has revived.
KIEFEL CJ: That might be a convenient time, Mr Solicitor. The Court will adjourn until 2.15.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Mr Solicitor, earlier you drew a distinction between compensation which might be payable under the Native Title Act in the event of a mining lease – that it would not be payable in the case of a mining lease in the scenario you discussed but it would be payable with respect to an authority to explore or like instrument. Could you expand on that a little for us so we can follow that?
MR THOMSON: Yes. With a mining lease, if we are correct and say that it is a lease that is within the operation of section 47B – that is, it is excluded from the principle of disregarding prior native title – and we say that because of the operation of Ward – the submission is that native title is regarded as extinguished and section 47B does not revive the native title and, therefore, there is no prospect of any compensation being paid. So, that is the position.
KIEFEL CJ: Why is compensation not paid – because it is revived?
MR THOMSON: No, it is not revived.
KIEFEL CJ: It is not revived.
MR THOMSON: That is right. So, that is upon the assumption which we think is based in the decision of Ward, that there is no prospect of a mining lease being – where land is subject to a mining lease that native title will be revived, if you like, by the operation of section 47B. Compensation is only payable where there is some interaction between the rights of a valid future act and native title which has not been extinguished.
NETTLE J: Would that compensation be payable under 45 or otherwise?
MR THOMSON: I think it is 51. Section 45 - no, sorry – so in a situation where you have a ‑ ‑ ‑
NETTLE J: An exploration permit, let us say, and Mr Glacken is correct, that is not covered, let us assume for the argument’s sake, so that the native title does revive. This is for argument’s sake, the native title revives.
MR THOMSON: Yes.
NETTLE J: Because 47B does not apply or at least 47B(1) does not apply. Does that mean that under 47B(3) the exploration permit continues to be valid and, as it were, prevails to the extent necessary over the native title?
MR THOMSON: That is right.
NETTLE J: Then whence derives the entitlement for compensation in respect of the continuation of that exploration permit, or at least the arguable entitlement to compensation?
MR THOMSON: So the application is made under section 50(2) and just compensation is assessed in accordance with the criteria in section 51(1).
NETTLE J: But for what? For what is it payable? I mean, it is not an act which has extinguished native title to any extent.
MR THOMSON: No, that is right, so the compensation would be payable to the extent that there is, in the terms of section 51(1):
any loss, diminution, impairment or other effect of the act on their native title rights and interests.
NETTLE J: The act would be what in those circumstances?
MR THOMSON: It would be the grant of the relevant tenement.
NETTLE J: Even though that preceded the revival of the native title?
MR THOMSON: But, you see, this is the point about identifying precisely the effect of section 47B. We would say it is not right to perhaps regard it as a revival because it is actually a principle of disregarding. So if it is true that what occurs is you disregard the prior extinguishment, then it is as if it has been in existence at all times.
NETTLE J: That is not just for the future; it is for the past as well.
MR THOMSON: Perhaps. I mean, these are all arguments that can be made and so that is why I have drawn them to the Court’s attention. They are certainly not arguments we embrace. We would oppose them if they were made.
KEANE J: Why would not one treat, if one looks at it in terms of disregarding – why would not the effect of it be that one has regard only for the future, one has regard to the native title for the purposes of the Act only for the future?
MR THOMSON: Your Honour may be right but clearly unless there was some indication about that, that is a matter that would be of some contention because the Act itself, except in the preamble, does not use the word “revive”.
NETTLE J: Certainly, in paragraph 47B(3)(a)(i) harkens back to something that was done in the past to give it legitimacy.
MR THOMSON: Yes, and I think there is a decision of Justice Rares - I think it is the Griffiths Case which says that the law is not settled but that you regard it as if nothing – sorry, as if the prior extinguishing event had never happened.
GORDON J: But the reference in (3)(a)(i) to prior interest is not to the mining tenement, is it? That is to the earlier existing interest that was extinguished ‑ ‑ ‑
MR THOMSON: That is correct.
GORDON J: So, we are not dealing with the mining tenement in (3)(a)(i). We are dealing with, in a sense, the preservation of what has gone before. It has already been extinguished.
MR THOMSON: Yes. But the mining tenement itself would be a future act because it is – in this case it is certainly a future act because it is post‑1994 and then you would have the compensation prospect because if you regard the native title as never having been extinguished.
NETTLE J: Certainly - at least more arguably for the future if not for the past.
MR THOMSON: Exactly. There might be a temporal issue if it is not for the past because the relevant act for which compensation is paid is an act which has occurred by definition prior to the operation of section 47B because it is at the time that the application is made. It only applies into the future when there is the possibility of compensation not being paid for that reason, but then we get back to the point about at what point in time do you say that a revival or a disregard of the prior extinguishment occurs.
NETTLE J: Yes. Thank you.
MR THOMSON: The last substantive point that I think I need to deal with is this. The appellants justify their construction of section 242(2) by reference to two particular purposes. The first, they say, is that it is enacted to ensure that mining production tenements which are not expressly described as a lease nevertheless attract the non‑extinguishment principle. The second purpose, they say, which is served by section 242(2), is to ensure that there is a right to negotiate in relation to exploration tenements. We would say that the construction of section 242(2) which they advance is not necessary to achieve either of those purposes.
In relation to the future act provisions and the right to negotiate, those provide that they apply to all mining rights. If I can take you to section 25(1)(a), which is an overview of Subdivision P which is the right to negotiate, it says in subsection (1):
In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
. . .
(a)certain conferrals of mining rights –
There is no distinction drawn there between mining leases and exploration tenements or production tenements. Then if you go to section 26(1) it says:
This subdivision also applies to a future act if:
. . .
(c)subject to this section, the act is:
(i)the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of an infrastructure facility ‑
Again, there is no distinction drawn there between various forms of mining tenements and, therefore, it is the case that the right to negotiate applies to all forms of mining tenements however you construe section 242(2).
In relation to the position of the non‑extinguishment principle, as the Court has already elucidated with my friend, the grant of a mining lease – sorry, the granting of a mining tenement may be with a category C past act or intermediate act, or it may be a category D past act or intermediate act, and it does not really matter, because it will be one or other of those two things, and the non‑extinguishment principle will apply either way so it does not drive any particular construction of section 242(2).
I should also point out that insofar as it is suggested that Division 3 of Part 2 has some particular need to be construed in order to achieve the purposes that I have mentioned, there are a number of provisions in that division which specifically exclude mining lease from the definition of “lease”, which suggests that where that does not occur it is not intended to occur. So if you look at section 23B to subparagraph (viii), you will see that there is some dealing with an act which is a previous exclusive possession act, and it says that:
An act is a previous exclusive possession act if –
(c)(viii) says:
any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
And also if you look at ‑ ‑ ‑
EDELMAN J: So that was 23B ‑ ‑ ‑
GORDON J: Subsection (2) I think is what you are referring to, are you not?
MR THOMSON: Yes, that is right, to (viii). Likewise, if you go to section 24IC and if you go to subsection (4)(c) there is a reference to certain future acts and the features that do not prevent a lease from being a renewal. It says:
The features are as follows:
And if you look at subparagraph (c):
the new authority or any of the new authorities is a perpetual lease (other than a mining ‑ ‑ ‑
KIEFEL CJ: That is in subsection (4)?
MR THOMSON: Subsection (4)(c).
KIEFEL CJ: Yes.
MR THOMSON: Now, those references are in addition to the point that Justice Gordon made about the operation of Division 2A which also has that similar provision which specifically excludes mining leases in section 21(3)(a). So, far from the construction of “lease” in those provisions having to be driven by section 242(2) in a particular way, wherever it is necessary in those provisions to particularly exclude a mining lease, it has done it.
KIEFEL CJ: There is a reference in section 232B(3)(g) to:
any lease (other than a mining lease) that confers a right of exclusive possession ‑
Does that suggest that a mining lease is thought not to confer a right of exclusive possession?
MR THOMSON: I think that is specifically in the context of a category A ‑ ‑ ‑
KIEFEL CJ: Intermediate period act.
MR THOMSON: ‑ ‑ ‑ intermediate period act, and I think we would also accept as a result of as far as Brown goes it is not exclusive possession for all purposes; it is only for the purposes of conducting mining.
KIEFEL CJ: Yes, I see.
MR THOMSON: So, to the extent that the construction advanced by the appellants is driven by a purposive argument based upon the ability to obtain the benefits of the future act provisions and the right to negotiate and the non‑extinguishment principle, we say that the purpose is not, in fact, achieved by the particular construction they put on section 242(2). It is achieved by the plain words of the statute out of the relevant divisions. Those are our submissions.
KIEFEL CJ: Thank you, Mr Solicitor. Yes, Mr Glacken.
MR GLACKEN: If your Honours please, I wish to make two points in reply, although there are some sub‑points. Each concerns the workings of section 47B. The first point I wish to address is what might be termed what is the harm of our construction in the sense of what is the effect of a determination being made and the second point we wish to address might be described as what is the universe of the exclusions to the application of the section?
On how the provision works and what would follow from our construction, if your Honours notice that section 47B(3) and, relevantly, paragraph (b) will apply the non‑extinguishment principle to the creation of any prior interest. That principle and its workings are explained in section 238 and the best example for present purposes is in subsection (4) because, on our construction, the exploration licences at a particular point in time would be a prior interest that would remain. The non‑extinguishment would apply to that existing interest – if I can call it that.
Under subsection (4), that licence would be partly inconsistent with the continued existence, enjoyment or exercise of the native title rights, relevantly inconsistent with what would be the revived native title right of exclusive possession. That revived right will have no effect in relation to the existing licence.
NETTLE J: So that no compensation will be payable?
MR GLACKEN: Correct. The short point about compensation that I will come to in a moment is that it can only be prospective for the next reason I am coming to. It would be prospective because the non‑extinguishment principle as expressed only applies in relation to the particular extant act, if I can put it that way. There may be several acts but extant acts.
NETTLE J: In this case, the exploration permit?
MR GLACKEN: Yes. Now, if there were another act, say, for example, a grant of a grazing licence over the same area, after the making of the native title determination, so say in three years hence or thereabouts, that would be a future act because that would be inconsistent with the revived native title right. The non‑extinguishment principle is not applying with respect to the future revival.
NETTLE J: So if at the end of the exploration permit they had found gold and got a mining licence that would be a future act, attracting compensation?
MR GLACKEN: Yes, well, attracting the future act regime. Now, what the compensation is ‑ and your Honour asked about section 45 of the Racial Discrimination Act, there is an analysis of that in Ward ‑ in effect, because compensation will be payable to the holder of a freehold title for disturbance to possession of the land the RDA would supply that right to the native title holders; it is what is known as the “similar compensable interest test”. So, section 45 of the Native Title Act then says the principles are those for assessment that you find in the Native Title Act itself.
The citation I should have given earlier was the first instance judgment of Justice Mansell in Griffiths v Northern Territory [2014] FCA 256 at paragraph 67. His Honour held that 47B did not have any reviving effect, if I can put it that way, in relation to past acts that were the subject of the compensation claim.
Now, the policy that is identified by the Full Court in the Northern Territory v Alyawarr, it is in the bundles of materials at tab 12 but it is 145 FCR 442 at paragraph 187, the Full Court spoke of a policy – this is in terms of the qualifications to the application of the section ‑ a policy that:
prior extinguishment which might obviate public exposure to compensation claims or a future act process –
GORDON J: Sorry to interrupt, could you just tell me what paragraph you are on?
MR GLACKEN: Paragraph 187, I am sorry. I apologise, I thought I had given the reference. Their Honours identified that if you continue prior extinguishment and if your Honours have turned up the passage in the materials, the sentence appears at line 10 of the materials with the sentence in the middle commencing with the words “A narrower construction”.
So what their Honours identify, which is correct in our analysis, is that for some time in the future – if I might call it a future future act – such a thing will engage the provisions of the Native Title Act relating to the right to negotiate and relating to agreement on compensation or determination of compensation, if not agreed, but it is prospective. To stay with the facts of this case, it had no application or exposure, if you like, for the extant exploration licences.
NETTLE J: But it would say “for an extension of the exploration licence”?
MR GLACKEN: That would bring in the question of renewals and there are exceptions about renewals in – I think it is section 26D. But the best example would be a fresh grant – if it expired and there was an entirely new grant, or to another party or something like that. There are several nuanced exceptions about what is a future act.
NETTLE J: Whereas 47B(3) picks up renewals, does it not?
MR GLACKEN: Your Honour might have in mind subsection (4).
NETTLE J: Yes, (4), thank you.
MR GLACKEN: And that actually serves a different function, revealed by the final words of subsection (4), talking about the period between the expiry or termination and the renewal. Subsection (4) really just goes to saying when land is covered by a lease for the purposes of subsection (1). It is not engaging with the issue we are presently analysing.
But if I can sum up, the short point is that these exploration licences – take the facts of this case – the non‑extinguishment principle would apply to them in the terms of section 238(4). There would be a suppression of the native title right of exclusive possession. That would not have any exposure to compensation for that act. But if that licence came to an end, as it will or would, a fresh licence of a similar kind would engage the future act process. And I should be clear that “future act” is defined in section 233 and it turns on the expression “affects native title”, as defined in section 227, as something that is inconsistent either with the continued existence of native title rights or the continued enjoyment of the native title rights.
NETTLE J: Presumably it would. An exploration permit, to some extent, would interfere with the enjoyment.
MR GLACKEN: Yes, yes, that is our analysis. I do not think I can add more to that but that is the consequences of engagement of the section. It looks forwards rather than backwards – if I can put it that way? Can I then say something about the universe of the exclusions in paragraph (b), or perhaps put it this way? It cannot be a total exhaustive description of competing interests in the area depending on how one defines the phrase “competing”.
An obvious example is that this section will apply if there is a grazing licence unless someone argues that that engages subparagraph (ii). In short form, the correct characterisation of paragraph (b) is our analogy, we submit, to the notion of unalienated Crown land, hence the title “Vacant Crown Land”. Toohey’s Case – sorry, Meneling Station 158 CLR – different statutory setting – but the issue there was whether or not a grazing licence meant that land was not unalienated Crown land.
As I said, the question becomes what is meant by competing interests? We submit that the correct characterisation of competing interests are those that are inconsistent with the recognition of native title, having regard to the prior extinguishment that is to be disregarded.
Perhaps, if I could ask for a modification to our written outline which might provide a better focus. It is partly in response to the question from the Chief Justice, observing that a pastoral lease, obviously, has extinguishing effects. We may have put things too loosely in saying that the Acts – that there is an incongruity in using a non‑extinguishing act to prevent the application of a non‑extinguishing provision.
Can we make it more targeted by suggesting these amendments to our outline at paragraph 9(1)(b)? In the second sentence, we have used the expression “dealings that are in the nature of extinguishing acts”. What we are endeavouring to submit, to be more accurate, are dealings that are – if we can insert these words – “treated by the Act”, large A. In the next line we say “whereas a mining tenement is not of that nature” – it should perhaps more accurately read “is not so treated”.
Therefore, to target the submission is really that the act itself works on a premise that certain events are non‑extinguishing as a key provision to apply non‑extinguishment in certain events. That is the incongruity. It is a question with the confines of the act. That then leads to the final remark which is really to do with the universe of the exclusions. We do get back to
the language, I think, of section 242(2). That is what has really sparked this case and the reasoning of the Full Court.
I think what our submission comes to is that one would not stretch the language of the text of section 242(2) any more than is necessary to achieve the harmonious workings of the Act, having regard to its overarching design and the policy that finds particular expression in section 47B to reverse the consequences of the sort of result in Fejo, where there is a long‑forgotten dealing and the native title holders continue to occupy the land under their traditions and, in this case, do so pursuant to their native title rights, which includes rights to access and to be on the land. They are the two broad points that I wanted to make in reply. If your Honours please.
KIEFEL CJ: Yes, thank you, Mr Glacken. The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 13 November.
AT 2.42 PM THE MATTER WAS ADJOURNED
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