North Ganalanja Aboriginal Corp & Anor v State of Qld

[1995] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 1995

B e t w e e n -

NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION on behalf of the Waanyi People

Applicants

and

THE STATE OF QUEENSLAND

First Respondent

CENTURY ZINC LIMITED  and CRA EXPLORATION PTY LTD

Second Respondents

Application for special leave to appeal

BRENNAN CJ
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 1995, AT 9.32 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:   May it please the Court, I appear with my learned friend, MR R.W. BLOWES for the applicants.   (instructed by Ebsworth & Ebsworth)

MR P.A. KEANE, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J. KOPPENOL for the first respondent.   (instructed by the Crown Solicitor, Crown Law Division, Native Title Unit, Brisbane)

MR H.B. FRASER, QC:   May it please the Court, I appear with my learned friend, MR P.L. O’SHEA for the second respondent.   (instructed by Blake Dawson Waldron)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:   If the Court please, I appear with my learned friend, MR D.J. McGILL for the Attorney‑General for the Commonwealth intervening.   (instructed by the Australian Government Solicitor)

MS C.A. WHEELER, QC:   May it please your Honours, I appear with my learned friend, MS K.E. GETHING for the State of Western Australia intervening.   (instructed by the Crown Solicitor for Western Australia)

BRENNAN CJ:   Both interveners are in support of the application, is that correct?

MR GRIFFITH:   Yes, your Honour.

MS WHEELER:   In support of the application in respect of the pastoral lease issues, your Honours, yes.

BRENNAN CJ:   Yes, Mr Castan.

MR CASTAN:   May it please the Court.  I should indicate to the Court that there were three questions in respect of which special leave was sought.  As to the second of those which raised a question of the judicial power of the Commonwealth and the way in which the question of whether it had been improperly conferred upon the National Native Title Tribunal, the application for special leave in relation to that is not pursued in the light of what seemed to be obvious legislative changes that are going to render it, in effect, moot for practical purposes.

In relation to the first matter that is raised, the pastoral lease question, as we have understood the responses from those at the Bar table, there is no opposition to the application.  Does the Court wish to hear me in support of the application for special leave in relation to that?

BRENNAN CJ:   Yes, Mr Castan.

MR CASTAN:   If the Court pleases.  Your Honours, this question of the extinguishment of pastoral leases raises a matter of general importance, it should firstly be said.  That is to say, a matter which ‑ ‑ ‑

DAWSON J:   But how do we reach that question?

BRENNAN CJ:   How do we reach that question?

MR CASTAN:   Your Honours reach it because, in relation to the holdings of the Full Federal Court, there has been a determination that a lease in 1883 is to be assumed to have issued which contained a reservation which did not extinguish the relevant native title claim ‑ ‑ ‑

DAWSON J:   That is obiter, is it not?  Because what they were deciding is whether the decision that, prima facie, the claim was made out was correct or not.

MR CASTAN:   That is true.  In the procedural sense that the matter came ‑ ‑ ‑

DAWSON J:   Not in a procedural sense.  That was the question before them.

MR CASTAN:   Yes.  But the matter came before the Court on the basis that what had been determined by the President of the Tribunal was an issue in which he had come to the view that he would form a final view on the law in relation to the question of extinguishment.  In other words, in order to determine the prima facie issue, the President of the Native Title Tribunal took the view that it was necessary to ‑ ‑ ‑

DAWSON J:   But if he was wrong in that?

MR CASTAN:   If he was wrong in having to finally determine ‑ ‑ ‑

DAWSON J:   Whatever the ultimate correct decision might be in relation to pastoral leases, if he was wrong in that, then that is the matter that has to be determined.  May I put it to you this way?  What the Act provides for is a negotiating process once a claim has been accepted.  And the question is whether it was right or wrong that the claim be accepted.

MR CASTAN:   That is so, your Honour.

DAWSON J:   Once that question is determined, if it was right that the claim be accepted, then the negotiating process would go on.  If it was wrong, then again the negotiating process should go on.  You cannot deprive people by deciding the ultimate question of that negotiating process.

MR CASTAN:   Yes, and that argument was put to the Full Federal Court by the applicants.  That is to say that the matter should not have come in the way it did to them but that was lost in the Full Federal Court.  In other words, the procedural argument, if I can call it that, which was by way of a preliminary point put by the applicants that the matter was one which should not have been determined in the final way that it was so as to exclude the application being accepted and thereby excluding the process of negotiation in a required mediation that is prescribed by the Act.  That was put and lost.  In other words, the Court held that ‑ ‑ ‑

BRENNAN CJ:   We have read the judgments; we know what they said.  There are two problems, it seems to me, in the way of reaching the point that you wish to have determined.  One is the question 63(3)(a):  did the President discharge the function which is assigned to him by that paragraph?  Or did he do something different?  Now, you went to the Full Federal Court on the basis that he did something different:  you lost there.

MR CASTAN:   Yes.

BRENNAN CJ:   Are you accepting that loss?

MR CASTAN:   We accept that.  We accept it in the sense that we had not seen that it would be ordinarily open to us to come, by way of special leave, to appeal on that determination adverse to us in the Full Federal Court.

McHUGH J:   The procedural point might be the only point of substance.  Arguably, the Registrar should never have looked at the documents that were put in by the other side.

MR CASTAN:   Yes, that was our submission and we lost on that and we accept that in the sense that we had not seen it as appropriate to seek special leave on what we might term procedural issues arising under the current form of the procedures under the Native Title Act given the nature of what it is, which is relatively new legislation which is, itself, in its procedural content, in the course of being refined, developed and legislative amendments being proposed.  So that we had not seen it as appropriate to apply for special leave on what were, for us, substantive ‑ ‑ ‑

DAWSON J:   That is the only question, really, in one sense.  If the President and we decide - if we grant special leave and the question is raised and we decide that the President was wrong in doing what he did, we should not conclude the question of pastoral leases extinguishing native title or not because to do so would, in effect, be to deprive your clients of the opportunity of a negotiating process.  Because if we decided that, and that is the question, it would have to go back to the Tribunal and it would not be much of a negotiating process if we determined the very issue which lies at the back of it.

MR CASTAN:   Your Honour has succinctly summarised precisely what was put much less succinctly by us to the Full Federal Court.

DAWSON J:   Because that was the point and it remains the point.

BRENNAN CJ:   Where does that leave this application?

MR CASTAN:   It comes to a point where we had taken the view, perhaps erroneously ‑ ‑ ‑

BRENNAN CJ:   Whatever view you had taken, what do we do now?

MR CASTAN:   In our respectful submission, it is not necessary for the Court to go beyond dealing with this as a special leave application given that that issue ‑ that is to say, that procedural issue of the propriety or otherwise of the President dealing with it in the way he did, has been dealt with and disposed of by the Full Federal Court.  We do not seek special leave at this stage to pursue that.

DAWSON J:   You do not seek to pursue it, Mr Castan, but what happens if we decide that the President was wrong in refusing to accept the claim?  What order do we make at the end?

MR CASTAN:   My first answer to that is that if the determination of the Full Federal Court is ‑ ‑ ‑

DAWSON J:   No, the question is:  if the President was wrong and we reach that conclusion in refusing to accept the claim, what do we do?

MR CASTAN:   Then all one would do is send it back to be considered in a proper way and not consider the ‑ ‑ ‑

DAWSON J:   Without determining the question of pastoral leases?

MR CASTAN:   Precisely.  That is inevitably what follows from that.  Would your Honours excuse for me one moment so that I could seek instructions on what has just emerged?

BRENNAN CJ:   We will adjourn this matter.  Let me raise another point with you so this also can be considered.  If this problem were to be overcome, the next question is on what footing is the question of pastoral leases to be determined?  Leaving aside the 1883 transactions, we come then to the ground of appeal which you fasten on, that is the 1904 lease.  There is an argument with respect to that, that the only instrument of lease was issued in 1907 after the subject land was surrendered.

MR CASTAN:   That is the fact, yes.

BRENNAN CJ:   Then, what is the relationship between the lessor, the Crown, and the lessee in respect of the subject land which, under the 1902 legislation is said to extinguish the title?  If there is any dispute about the facts on that then we have to determine a question of law on the basis of disputed fact.  I raise the question.  We will adjourn the case; the matter can be considered by counsel; we will hear the next application and you can return to the Bar table.

MR CASTAN:   If the Court pleases.

AT 9.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

BRENNAN CJ:   Yes, Mr Castan.

MR CASTAN:   Your Honours, having considered what was put by the Court prior to adjourning this matter, we would seek to amend our application for special leave so as to include in the matters the subject of the application the question of the procedural issues relating to the determination by the President of the legal issues in the way that he did and the upholding of that course by the Full Federal Court. 

We would put that, by doing that ‑ and the grounds in our draft notice of appeal encompass that, although that was not isolated as a separate question ‑ the whole of that question could be argued and determined and, if determined favourably to us and the view was taken that both the President and the Full Federal Court had erred in holding that that was an appropriate way to deal with the matter, the matter would then go back to be dealt with in accordance with the way determined by this Court.  If not, then we would seek to include all the other substantive ground of appeal on this side of the matter ‑ that is to say, the lease question.

So far as concerns the second matter that your Honour the Chief Justice raised with me, the 1904 lease, there is no question of fact that is in dispute or in issue or needs to be determined or that is left the subject of any application for special leave.

BRENNAN CJ:   What are the facts, then, upon which the lease question is to be determined?

MR CASTAN:   An application was made for what I will call a conversion under the relevant statute under the 1902 Act; it was made in 1904; the appropriate steps were taken; the Act took effect and an instrument issued in October 1907.  The other fact that is a fact is that ‑ and is not disputed ‑ there had been a surrender and a creation of a reserve in May, I think it was ‑ ‑ ‑

BRENNAN CJ:   When, on those facts, is it said that there was an extinguishment of native title?

MR CASTAN:   We would be respectfully submitting that there was no extinguishment of native title so that question would have to be addressed to others, your Honour.

BRENNAN CJ:   But what was the decision made by the Full Federal Court as to the title?

MR CASTAN:   The decision by the Full Federal Court was that an extinguishment upon the grant of the lease taking effect, according to the statute, on 1 July 1904.

BRENNAN CJ:   So that it was not until October 1907 that there was an extinguishment?

MR CASTAN:   I am sorry, your Honour, no, I said that the way in which it was expressed by the Full Court was that the extinguishment took effect on 1 July 1904.

BRENNAN CJ:   By reason of what?

MR CASTAN:   By reason of the operation of a statute, Land Act 1902 which took effect because of the procedures, the lodging of an application for conversion of a pre‑existing pastoral lease and the other complex statutory steps.

BRENNAN CJ:   By reason of what fact did the extinguishment take place on 1 July 1904?

MR CASTAN:   We would be submitting that it did not.

BRENNAN CJ:   No, what was the Full Court’s finding?

MR CASTAN:   I would be forced to say that the finding was that the fact was the fact of the application made under the statute and the force of the statute.

DAWSON J:   But operating retrospectively back?

MR CASTAN:   I do not know that it was operating retrospectively.  The view taken by the Full Court was that it was not dependent upon the issue of a 1907 lease, that it took effect by reason of force of statute and the application having been made, not by reason of the issue.  There is no factual issue inherent in any of that, in our respectful submission.  What it leads ‑ ‑ ‑

BRENNAN CJ:   But there is, Mr Castan, surely.  The question must be whether or not the 1907 lease was a fact upon which the extinguishment depended.  And if there is uncertainty as to whether it was the issue of the 1907 lease or not, then the next question of fact is:  what is the effect of the surrender prior to the issue of the 1907 lease?

MR CASTAN:   In our respectful submission, those are all legal questions, your Honours.  There is no factual issue; there is no debate about the events that occurred.  The facts are clear:  there was an application made under legislation; the legislation, if it took effect, had an effect as at 1 July 1904.  No instrument issued; no events took place on the ground; no change occurred of a relevant kind.  The factual event occurred.  The next event that is a relevant event is a creation of a reserve in respect of the subject land in May 1907 and the next event is the issue of a lease in November 1907.

BRENNAN CJ:   Let us assume that the facts are, as you say, quite clear.  If you link your now proposed ground to those facts, then the question arises whether the President ought to have determined on those facts whether or not a claim could have been made out, prima facie.  And that would give rise, would it not, to a consideration of the legal consequences of the making of the application in 1904 and the issue of the lease in 1907.  And your argument, I take it, would be that there is sufficient uncertainty on either ground to justify the admission of the claim?

MR CASTAN:   Absolutely, your Honour.  That is precisely ‑ ‑ ‑

BRENNAN CJ:   Yes.  So that the question of whether or not leases are extinguished would never be reached?

MR CASTAN:   Whether or not leases extinguish ‑ ‑ ‑

BRENNAN CJ:   By something.  What your argument would be is, there are two possible grounds on which leases may have been extinguished, but there are arguments about both of those grounds.  Since there are arguments about both of those grounds, the claim was one which ought to have been admitted pursuant to 63(3)(a).

MR CASTAN:   That has been our position from before his Honour Justice French, as President and before the Full Court and it remains our position.

BRENNAN CJ:   So it would never reach your ground 2(a).

MR CASTAN:   In our respectful submission, that is not the position because that assumes we are successful in all of that.

BRENNAN CJ:   Yes.

MR CASTAN:   But if we are unsuccessful in it ‑ and we have been unsuccessful so far at both levels at which we have put all of that, those what I will call broadly procedural questions ‑ having put that very analysis we have been unsuccessful, we then have to go to the next stage and we have to grapple with the fact that, as we have been saying, wrongly or in error, their Honours have been engaging in that process and treating it as though it is not something that is ‑ ‑ ‑

BRENNAN CJ:   So that if you succeed, the matter goes back to the President without this Court having determined the correctness or otherwise of the holding in law that the Full Court reached?

MR CASTAN:   And if we have got to that point, there would be an extremely difficult position for the President because ‑ ‑ ‑

BRENNAN CJ:   It would, indeed.

MR CASTAN:    ‑ ‑ ‑he would be faced with a holding of the Full Federal Court holding that, in effect, in a determinative way, if I can put it that way, that there has been extinguishment of native title and, therefore ‑ ‑ ‑

McHUGH J:   But we would have set that order aside.  That would be the hypothesis; the claim would be bound to be accepted and the negotiating process would start.  Determination of the issue of extinguishment is well down the track.

MR CASTAN:   Yes, the only difficulty, and we would say it could be overcome by appropriate orders or expressions of a view as to the correct procedure by this Court, would be if the matter was left at large and the President was left with having to reconsider the matter but faced with a Full Federal Court decision which, so to speak, does determine the matter finally.

DAWSON J:   But it would not, because what this Court would be saying was that it was an open question and that is the reason it goes back.

MR CASTAN:   Yes.  So long as, subject to that qualification, the matter would then go back, as we have been seeking to have it go back from our very first application - as we first put it to his Honour Justice French as President.  So that we say it is capable of being determined in that way so that what we might call the proper procedure is adopted so that then, if it is thought that the proper procedure, if we lose on what we have contended is the proper procedure ‑ the procedure that if I might say so, with respect, that your Honour has put to me this morning - if it is the ultimate view that is taken is that that is not so and that the proper procedure has been adopted, then one would go on to consider what we will call the substance.  If the view were taken that it should go back, it would go back but with an appropriate indication so that the matter should be regarded as still open, if I

can use that generalised expression, in relation to the extinguishment question of native title.

BRENNAN CJ:   That is a very different case from the one which is made in the application thus far before the Court.

MR CASTAN:   It is, your Honour, and I ‑ ‑ ‑

BRENNAN CJ:   The question now is whether or not that application warrants a grant of special leave and that, in turn, is no doubt to be affected by the views that are to be expressed by those on the other side of the record from you.

MR CASTAN:   Of course, your Honour.  I would be content for your Honours to hear from them.

BRENNAN CJ:   Mr Castan, we will hear first from your opponent and, perhaps, from the interveners, as to your application to amend the application for special leave to add the ground based on 63(3)(a).

MR CASTAN:   If the Court pleases.

BRENNAN CJ:   In the meantime, you might care to turn your drafting skills to the formation of the ground so that we can consider precisely what matter is to be determined.  Mr Solicitor?

MR KEANE:   May it please the Court, we would oppose the application to amend the application for special leave.  We would do it on the basis, firstly, of the absence of an identification of error in the decision of the Full Court to approve the approach to a matter of procedure by the President in entertaining questions of law relating to the matter before him under 63(1)(b).

BRENNAN CJ:   It is a matter of procedure which affects an integral part of the Act, namely the negotiation procedures.

MR KEANE:   Your Honour, there are two things we would say about that.  The first is that it is a matter of procedure in which, as the Commonwealth’s submissions point out, amending legislation is on the way.  Secondly, while it is true to say that it is a matter of procedure integral to the proper administration of the Act, it is a question that arises as to the correctness of the President entertaining questions and, indeed, difficult questions of law and fact. 

There is an appeal afforded by the present provisions under section 169(2) of the Native Title Act.  Your Honours will see that in relation to such a question, the appeal provisions under 169(2) contemplate themselves that questions of fact or law may have been determined at the initial stage.

DAWSON J:   But in the context of a prima facie claim having been made out.

MR KEANE:   Having to be made out, yes.

DAWSON J:   Having to be made out, yes.

MR KEANE:   And one has the sort of case, I suppose, that one had in Theseus v Foyster where a judge, hearing a summary judgment application, determined the question of law which, as a matter of discretion, he may have declined to do but, having determined it and it having been held correctly, the court declined the suggestion that it should be sent back to the judge to reject the conclusion he had ultimately found because it was arguable the other way.

In our submission, the Act, as presently structured, does contemplate decision of questions which do involve matters of fact and law and resolution of those questions in relation to the decision of whether there is a prima facie case, whether a prima facie case can be made out or whether ‑ ‑ ‑

DAWSON J:   I am not sure you can consider that.  I do not know what “prima facie” really means in this context.  But you surely have to take into account the fact that the negotiating process is something which is fundamental to the Act and that, really, what is meant to be excluded is, perhaps, hopeless cases but nothing else.  I take that word from, I think, the second reading speech to the amendments which are currently before Parliament.

MR KEANE:   Hopeless cases may be hopeless because the law can be seen to be correctly expounded in a particular way.  And in this case, there is ‑ ‑ ‑

DAWSON J:   I mean to say this is just not like a pleading summons; it is something different, is it not?  A quite different context.

MR KEANE:   It is a different context, your Honour but by the same token, when your Honour says “it engages rights to negotiate”, rights to negotiate themselves are forward impediments to actions by or in favour of other parties.  One might say that those impediments are something which should not occur where there is not a prima facie case in the old Beecham sense of a case which, if the facts remain the same, will have a particular conclusion at a trial.

DAWSON J:   I would have thought there might have been a different philosophy behind the negotiating process which it provided for.

MR KEANE:   Your Honour, the question is, with respect, whether there is a different philosophy behind these provisions which inhibit action by mandating, to use that American terminology, a negotiating process where there is a claim that has been received on the footing that an affirmative view has been reached that a prima facie case is demonstrated. 

Your Honours, just to summarise then in relation to the question your Honour has invited us to address, there has not been, in our respectful submission ‑ perhaps because of the way the matter has emerged ‑ an identification of really error on the part of the Full Court in its approval.

McHUGH J:   One basis of error may be that your side should never have been heard at this stage.

MR KEANE:   Your Honour, in relation to that, there is no suggestion of any exclusion of the rights of natural justice.  The President took the view that, having regard to the consequences that would flow from acceptance of a claim in relation to inhibitions on further action by reason of its acceptance, that there was sufficient impact on the rights of the persons that he invited to make submissions that natural justice, not having been excluded, warranted him in informing himself in the way he did.

McHUGH J:   It was an administrative application, having regard to the presence of section 66 in the Act, requiring notice to be given to persons after the application was accepted.  One might have thought that was the time that your clients and the respondents were entitled to be heard.  There was a large tactical advantage for your side.  You put all this material before the Registrar to cut off the applicants from getting involved in the negotiation process.

MR KEANE:   Your Honour, as to the latter, any tactical advantage could plainly have been met by allowing any necessary adjournment, had one been applied for.  As to the former point your Honour put to us, the presence of section 66 is not, itself, a basis for implying an exclusion of the rules of natural justice at any other stage of the process and the decisions of this Court are quite clear in that regard:  Annetts v McCann and Ainsworth v The Criminal Justice Commission.

BRENNAN CJ:   But what are the rights which would have been affected by admitting the claim?

MR KEANE:   Your Honour, that would have enlivened the rights to negotiate and inhibitions on grants contrary to those rights.

BRENNAN CJ:   Is that not precisely what the Act contemplates?

MR KEANE:   It does but that being so, your Honour, in our submission, makes it a stronger case for hearing those who might be affected by that before the claim is accepted.

BRENNAN CJ:   Is that an important question for determination?

MR KEANE:   Your Honour, we would submit it is a question the answer to which is clearly established by decisions of this Court.  Its correctness was affirmed by the Full Court and the reason we are addressing your Honour on this question now is that no one has suggested, prior to a few moments ago, that there might be some doubt about the way in which that question was resolved.

BRENNAN CJ: Mr Solicitor, there is one fundamental problem underlying this, it seems to me, and that is that the question of extinguishment has been determined by the Full Federal Court by a procedure which depends upon section 169(2). Is that a judicial determination which is binding on the parties?

MR KEANE:   Your Honour, the determination under 169(2) is effective and binding on the parties as to the matters before the Court.

BRENNAN CJ:   As a judicial determination?

MR KEANE:   Yes.

BRENNAN CJ:   Considered on appeal from an administrative process without a trial, where the question posed for consideration was whether they could make out a claim?  It seems a curious result, does it not?

MR KEANE:   The question your Honour poses to us includes, as an element, without a trial.  What there was was an administrative hearing, the circumstances of which have not attracted any criticism in terms of the ability of each side to be heard and in circumstances in which that decision itself does not erect any estoppels.  There is not a judicial decision.

BRENNAN CJ:   If there is a judicial decision now at the end of that, where the question was simply one of review of propriety of that proceeding, does that elevate the decision to something more than an administrative decision?

MR KEANE:   There is a decision that that proceeding was proper.

McHUGH J:   That was a necessary step in the determination, having regard to the reasoning of the Full Court, which may well be regarded, having regard to Blair v Curran and Hoysted’s Case, to create an issue estoppel as against these applicants.  It seems to me if your argument about parties is right, then the Registrar is bound to give notice to everybody the moment an application is received.

MR KEANE:   No, your Honour.

McHUGH J:   Why not?

MR KEANE:   Not by reason of some statutory provision but simply by reason of the exigencies or by reason of the apprehended consequences of the order on parties who would be affected.

BRENNAN CJ:   Well, for whatever reason.

McHUGH J:   Whatever reason, and yet the statute takes its stand that the notice is to be given after the application is accepted, and it is an administrative decision.

MR KEANE:   But, your Honour, that, as we say, is a situation that can arise under many statutes that provide for administrative procedures.

McHUGH J:   But this is a very different procedure because matters of substance are dealt with down the track.

MR KEANE:   They can be dealt with down the track or, if one can see that by reason of the application of law two facts - a particular result is inevitable ‑ ‑ ‑

McHUGH J:   That may be, but that is a matter for an ex parte basis.

MR KEANE:   But, your Honour, one is concerned there with the propriety of hearing someone who will be affected, who may have a perfectly good answer, who may have a perfectly unassailable answer.  The question is simply whether his Honour was correct in allowing that party who, as it turned out, had an unassailable answer, to be heard, rather than to allow a claim that is doomed to limp on.

McHUGH J:   But arguably it is a matter to be determined having regard to the claim that is filed.  And if the claim is deficient, and after all section 63 starts with the words:

If the requirements of section 62 are complied with.....the Registrar must accept it, unless -

And arguably it seems to me at the moment that what has happened here has distorted the whole procedure envisaged by this Act and to the detriment of the applicant.

MR KEANE:   Your Honour, I will not keep at your Honour about it, but 63(1) does say, as your Honour says, “If the requirements of section 62 are complied with”, but then it does invite attention to the possibility of an opinion which we say section 169(2) indicates may be one based on fact or law, that a prima facie claim cannot be made out.

McHUGH J:   That may be, but you want to have a full scale argument at this stage.

MR KEANE:   One says “full scale”.  The argument that was held was the argument which was sufficient unto the day so far as those who are participating in it.

DAWSON J:   Except that line of reasoning which has its attractions, I know, but to say that something is hopeless because ultimately it proves to be hopeless when you have gone into it really does not carry very far, does it?  I know there are cases which say there are some questions of law and so on, but realistically, in this situation, it is a very hard thing to support.

MR KEANE:   Your Honour, that is all we can really put to your Honours in relation to the question your Honour has asked us to address.

BRENNAN CJ:   Mr Solicitor for the Commonwealth, have you anything to say with regard to the application to amend?  I am sorry, Mr Fraser.

MR FRASER:   Your Honour, we would oppose the application to amend but really on the same grounds that we would oppose special leave being granted if the amendment were allowed which are the sort of grounds that have been discussed by my learned friend, Mr Solicitor.  Can I just add to that one or two points.  Firstly, because the Act does grant a right of appeal on questions of law decided by the President in the course of rejecting applications, it is my submission that the special leave point would be whether the Full Court was in error in holding, as it did, that the President had acted within the range of his discretions in deciding that question of law.  And in my submission that is not a special leave question for a number of reasons, one of which of course is the fact that this legislation is in the process of being changed in material respects.

DAWSON J:   But the question of whether a prima facie claim has been made out remains a question, does it not, under the legislation?  It is just you go straight to the Federal Court from a determination.

MR FRASER:   I just cannot recall the answer to that question.  So far as the other points which have been raised are concerned, can I say that so far as the question of parties is concerned, in my submission the special leave point would not raise an issue as to whether the respondents were entitled to be present but whether his Honour Justice French was in error in inviting the respondents to be heard.  His Honour did not determine that the principles of natural justice demanded that either the first respondent or the second respondent should be present but rather his Honour, having had submissions made to him, decided to invite the respondents, having regard to the significance of the questions involved and the effect, as his Honour saw them, in the interests of the parties.  So, in my submission, that special leave question would only be whether his Honour made a mistake in, in fact, deciding to invite the assistance of the respondents in deciding those questions of law.  In my submission again, that is not a special leave point.

In the end, in my respectful submission, and all of this was traversed in the Full Federal Court, the only question is whether his Honour Justice French simply was not permitted in the circumstances to embark on a decision on the question of law.  His Honour considered that it was a good idea to do so, partly because, as his Honour expressed it I think on an earlier occasion, mediations were running into extreme difficulty because of the fact that this question had not been decided.  In my respectful submission, there is no special leave point in whether or not the Full Federal Court was mistaken in determining that that was a decision which was within the range of his Honour’s discretion.  Those are my additional submissions, may it please the Court.

BRENNAN CJ:   Thank you, Mr Fraser.  Mr Solicitor for the Commonwealth.

MR GRIFFITH:   As the Commonwealth submitted on the earlier application for removal, the interests of the Commonwealth is to ensure the ruling of this Court on the issue of pastoral leases and that is the interest in which the Attorney desires to intervene.  We had taken this matter on the judgment of the Full Court on the application which was made by the plaintiffs, your Honour, as accepting the circumstance that the issue of the procedure under section 63(3)(a) was accepted on the basis that Justice French had considered the difficult issue of law, that issue which the Commonwealth sees and the public interest in being determined in this Court, and that the applicants were not, in this application, seeking to raise the point which is now sought to be raised by the matter on which my learned friend, Mr Castan, has given notice to the Court.

Your Honour, there is one difficulty that if the matter comes up on the basis of considering that issue, firstly, we would submit that is a rather doubtful special leave point but, secondly, your Honours, one has the circumstances which are referred to in the affidavit of Janine Rosemary Ward that the Attorney-General has filed, paragraph 14 of that affidavit, page 4, after giving information out with respect to applications, your Honour, the deponent notes that in mediation conferences which have proceeded, there have been difficulties in the mediation process because of the uncertainty as to what is the position as to land which has ‑ ‑ ‑

DAWSON J:   .....some difficulties or not, I mean from one point of view in the negotiation process uncertainty might be a desirable circumstance.

MR GRIFFITH:   If it is a question of breaking the knot and knowing when one will get the certainty or the uncertainty resolved, your Honour.  In this case, it matters ‑ ‑ ‑

DAWSON J:   It is not much negotiation when you know you have not got a hope, is it?

MR GRIFFITH:   On one view there is nothing to negotiate about.  That comes within the category of hopeless case that your Honour referred to.  But we accept there is an element of circularity here.  The issue is to how to break that circle.  For example, if matters stay as they are in this matter, it is clear that the applicants’ application is not going to go anywhere.  And if there was a new application made under the Act as has not yet been amended, your Honour, one would suppose the Registrar would again refer the matter to Justice French and he would look at the judgment of the Full Court and take the view that once more the application should be rejected.  So that one can see it is almost like the “Fleelinger Hollander”, always at sea and not going there. 

But, your Honours, on the question of the amendment of the Act, section 63 is to be repealed, as your Honour Justice Dawson pointed out.

DAWSON J:   There is a new section, section a hundred and something, which reinstates the prima facie claim as being made out ‑ ‑ ‑

MR GRIFFITH:   And the provisions in the new 86A to refer matters to mediation with some exceptions.  The essential issue of public policy with which the Attorney is concerned is to determine this issue of what is the effect of a pastoral lease, without reservations?  What is the effect of a pastoral lease with certain reservations?  We appreciate the difficulty that our particular case has, this one already has in seeking to approach the Court or removal under section 40, and there is this enduring difficulty having regard to the provisions of section 63.

But, your Honours, we do submit that as a matter of public interest the mechanism whereby the Full Court has determined this difficult issue does give a basis for this Court to determine, not as an abstract issue but as a particular issue, both the matters arising under the 1883 lease and also the issue arising under the 1904 lease.  There have been findings in the Full Court that the 1883 lease was a lease issued with a particular reservation.  The terms of that reservation are set out on page 106 and page 231 of the special leave application book.  So that there is a matter which the Court could determine as a matter not in dispute between the parties concerning a lease in particular terms.  Now, it is that issue ‑ ‑ ‑

BRENNAN CJ:   We could determine that but there is no challenge to the conclusion reached by the Full Court in relation to that matter, is there?

MR GRIFFITH:   Your Honour, the question is a consequence, because in the case of the 1883 lease in effect that has been put on one side on the basis that the Full Court’s decision on the 1904 lease determines the matter that native title has been determined.  It is not necessary to go to the 1883 lease.  But it would be the Commonwealth’s view and, as we understand it, the second respondent had a view slightly different but on the same issue, that in any event the 1883 lease would have determined the native title.  As we understand it, the second respondent would say that on the basis that it should be taken that there was no reservation.

BRENNAN CJ:   Who found that fact of the 1883 lease?

MR GRIFFITH:   Your Honour, it seems to be found by, firstly, Justice French at 106; Justice Hill, 230, 231; Justice Jenkinson, not quite such precise language, 146, 147 and Justice Lee, 161.

BRENNAN CJ:   Is that a lease issue?

MR GRIFFITH:   That is the issue that there was a lease in 1883 with a reservation.

BRENNAN CJ:   But I thought Justice French found that there was none.  Am I wrong in that?

MR GRIFFITH:   Justice French found there was a lease with no reservation.  The Full Court ‑ ‑ ‑

BRENNAN CJ:   He found that there was no lease, no instrument of lease.

MR GRIFFITH:   Yes, your Honour.  The Full Court held - I think the three Judges, your Honour, that there was a lease with a reservation and that ‑ ‑ ‑

BRENNAN CJ:   Now, how did they have the jurisdiction to find that?

MR GRIFFITH:   This is the issue, of course, as to what was the matter before the court.  The Commonwealth did not control that, but as the matter was argued before the Full Court it was on the issue that the documentation is there, what is the legal consequence of that?  If there is a legal consequence which has declared that native title is determined, it is the case the Full Court proceeded on the basis referred to by Justice Dawson that that would determine as a matter of law whether or not the application was hopeless, if I can put it in those terms.

BRENNAN CJ:   Mr Solicitor, you are aware that removal in the first instance was refused in order that the facts could be resolved and the problem is that it comes back here now in a state where the facts seem to be, perhaps, not much further forward.  But, perhaps this is, again, an argument that is further down the track since we are considering, at this stage, the question of whether there should be leave given to amend the application.

MR GRIFFITH:   Indeed, your Honour.

BRENNAN CJ:   Essentially, what your point is, as I understand it, is that the question of extinguishment of native title by the lease legislation, or the

instruments of lease issued under lease legislation is the point that you wish to have determined?

MR GRIFFITH:   Yes, your Honour.

BRENNAN CJ:   Therefore, you oppose the grant lest the grant of the leave to amend prevents that question falling for determination. 

MR GRIFFITH:   Indeed, your Honour.  The Attorney appears in the public interest, no so much in the circumstances of this case, your Honour, but in the general public interest to have an authoritative decision of this Court on the lease issue.  We appreciate the difficulty about the facts but we would submit that they are further and better advanced from the disabling position they were on the removal application.  But we would point out on this application for amendment that the Act is to be amended and we would say that this is not, in ordinary terms, a special leave point.  Indeed, as we read the application, it was consciously discarded as a ‑ ‑ ‑

DAWSON J:   May we settle this once and for all.  The amendment leaves the question as what is meant by a prima facie case having been made out, does it not?

MR GRIFFITH:   Yes, your Honour.  But the Attorney’s intervention is one in the public interest to seek to have this matter ‑ ‑ ‑

BRENNAN CJ:   Yes, we would hope that it would be, Mr Solicitor.

MR GRIFFITH:   So, to that extent, your Honours, it is result driven and what we desire to submit is that, although there are difficulties in this matter, there is, as your Honours in giving the decision on the removal application, we would submit, in issues arising under this Act of this sort, a particular reason for the Court to seek to advance the matter if, consistent and compatible with the principles of the Court exercising its jurisdiction, it is possible to do so.  Special leave being a discretionary matter, we submit there is a balance thrown here in the public interest which should enable the Court, if it is close enough, to give the special leave on this issue, as it were, the benefit of the doubt, let it through the gate, even if it is clear enough without these special factors one would expect, for what are obvious technical reasons, there could be difficulty.  If the Court please.

BRENNAN CJ:   Ms Wheeler?

MS WHEELER:   Your Honour, Western Australia’s interest too is in having an authoritative determination of the pastoral lease issue and as

your Honour the Chief Justice so succinctly put it, we would oppose the application to amend lest it should prevent the achievement of that result. We have no additional submissions on that point.

BRENNAN CJ:   Mr Castan?

MR CASTAN:   Your Honours, we have formulated, with some hesitation and in haste, a form of further question which I am content to read at this stage, but it would at least perhaps assist the Court in isolating the issue, even if needing further refinement.  It is expressed, for the purpose of this exercise as, assuming it to be question 1(a):

Where there is a question of law to be considered by the President of the Tribunal acting under paragraph 63(3)(a) of the Act, whether the President should finally resolve or determine that question for the purpose of deciding whether a prima facie claim can be made out or whether he should merely determine whether that question is arguable.

I should indicate to your Honours that that formulation is taken from the grounds of appeal from some of Justice French, as President, to the Full Federal Court in which the matter was there raised and then formulated into a form of question.  In terms of those matters that have been put by my learned opponents, we would merely say that, while we also are anxious to have the ultimate issue determined, the reason for having the ultimate issue determined is to have it determined favourably so that we can have our application accepted.  Given that we have been waiting for it to be accepted now since June I think of last year ‑ ‑ ‑

BRENNAN CJ:   How will that happen if you succeed on your proposed ground?

MR CASTAN:   The matter would be referred back to the President to act in accordance with that test.  If the question is answered that he should merely determine whether the question is arguable, then ‑ ‑ ‑

BRENNAN CJ:   He is now instructed by a judgment of the Full Court?

MR CASTAN:   Instructed by a judgment of this Court.

BRENNAN CJ:   No, by a judgment of the Full Court of the Federal Court, the merits of which will not be determined by this Court.

MR CASTAN:   That is true, your Honour, but the question of whether or not the question is arguable would remain open for his Honour.

BRENNAN CJ:   It would remain open.  Of course it would remain open ‑ it would have to be determined by him.  But you see a great advantage in that?

MR CASTAN:   If the matter was dealt with in that way, we would require, and would be seeking an indication from this Court if this application succeeded and the matter was ultimately dealt with by this Court and succeeded on that ground, an indication that the ultimate issue is an issue that is arguable, at the least.  Because something is needed in order to resolve the circle that we are otherwise in and the President was otherwise in.

BRENNAN CJ:   If you say that something is necessary to resolve the circle, I thought that what this first ground was intended to do was to preserve the circle.

MR CASTAN:   Not if it is a circle that inevitably leads to rejection so that ‑ ‑ ‑

BRENNAN CJ:   That will be a matter, surely, for the President, in the light of everything that has happened.

MR CASTAN:   Yes, and that may depend on the way in which the matter is ultimately argued if leave were granted and the matter ultimately comes up, and it will depend a lot on what occurs in the course of the argument.  And if the matter goes off and the only issue which is determined by the Court, assuming it granted special leave, was that question and it did not touch at all on any of the other issues, which is one possibility, then there would be one situation.  Other possibilities are that the other questions would be at least, although assuming that question was answered favourably to the applicants, that nevertheless there would be some aspects of the lease questions might be touched on.

BRENNAN CJ:   In substance, what you would be saying is the question of extinguishment by Crown leases is a matter of uncertainty.

MR CASTAN:   Yes, we say that.  We have been saying that at the tribunal level and at the Federal Court level and we seek to say it and we would want this Court to say it if it was not going to resolve the uncertainty.

DAWSON J:   Should not your ground be more simply expressed by simply saying that the President was in error in directing the Registrar not to accept the claim of the applicants upon the basis that no prima facie case could be made out?

MR CASTAN:   That, I think, embodies the same ‑ ‑ ‑

DAWSON J:   Yes, but it leaves other questions open if they are appropriate to be considered.

MR CASTAN:   Yes.  It has been said many times by judges and, hopefully, many times by counsel that the worst time to be drafting is on one’s feet.  I have no other submissions, if the Court please.

BRENNAN CJ:   The Court will adjourn in order to consider what course it should take in relation to this first application.

AT 10.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.57 AM:

BRENNAN CJ:   The Court has decided that the matter will be adjourned to a Full Bench of the Court sitting in Canberra for determination.  There will be leave to the applicant to amend the grounds of the application.  The applicant shall have seven days in which to formulate that ground along the lines of the intimation already given by Mr Castan.  The amended application is then to be served on the other parties and the interveners.

The matter will be listed before a Full Court and will proceed, first of all, as an application for special leave to appeal on what is now intimated to be ground 1(a).  Dependent upon the view of the Court in relation to that application, the matter may then proceed (particularly if that application is refused) to deal with the other parts of the application that have been foreshadowed.  Parties should be ready to argue all aspects of the matter, including those which are of particular interest to the respondents and to the interveners as on an appeal.

The application books should contain all the material that is necessary as for an appeal but the Court would expect the parties to arrive at an agreed statement of facts relating to the issues which they would seek to raise on a substantive appeal, so that there will be no misunderstanding as to what the ultimate facts might be.  We understand from Mr Castan that there is no dispute as to the facts.  So long as the facts are clearly understood and are agreed, and are stated to be agreed, it may not be necessary to incorporate in the appeal books all the material upon which those facts have been found.  Is there any further matter at the Bar table?

MR GRIFFITH:   Your Honour, from recent experience, I wonder if it would be of assistance if it was possible to have a supervising Judge that the parties could mention the matter if - - -?

BRENNAN CJ:   Yes, the matter can be mentioned before me at whatever time is appropriate and, perhaps, ought to be mentioned before me at least in the week preceding the first sittings of the Court for next year, that is, in the week commencing 29 January.

MR GRIFFITH:   Thank you, your Honour.

BRENNAN CJ:   Now, we understand that there is some sense of urgency about this application.  Is that so from your point of view, Mr Solicitor for the Commonwealth?

MR GRIFFITH:   Yes, your Honour.

BRENNAN CJ:   What about from your’s, Mr Castan?

MR CASTAN:   There is.

BRENNAN CJ:   Mr Solicitor for Queensland?

MR KEANE:   Yes, there is, your Honour.

BRENNAN CJ:   From Western Australia, I presume.

BRENNAN CJ:   The first sittings of the Court appointed for next year commence in Canberra on 6 February.  They commence in Sydney and Melbourne on the 5th.  The 6 February will be occupied with the swearing in of the new Justice.  The 7th, 8th and 9th February are available.  Subject to any further representations which are made within a very short space of time to me I would propose to list this case for those days.  In that event, it would be desirable for the submissions that are proposed to be made to be reduced to writing by the parties and to be lodged with the Court and exchanged as between the parties not later than 30 January.

Perhaps I will list the matter now for mention on 31 January at 9.30 am, subject to any representations that are made by the parties for any alteration in that time if that time should prove to be unsuitable.

AT 11.03 AM THE MATTER WAS CONCLUDED