North Ganalanja Aboriginal Corporation & Anor v State of Qld

[1995] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 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-named Respondent

CENTURY ZINC LIMITED and CRA
  EXPLORATION PTY LTD

Second-named Respondents

Application for removal of cause pursuant   to section 41 of the Judiciary Act

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MAY 1995, AT 9.46 AM

Copyright in the High Court of Australia

MR J.L. SHER, QC:   May it please the Court, I appear with my learned friend, MR R.W. BLOWES, for the applicant.  (instructed by Ebsworth & Ebsworth)

MR G.J. GIBSON, QC:   May it please the Court, I appear for the first‑named respondent, the State of Queensland, with my learned friend, MR G.J. KOPPENOL, of counsel.  (instructed by the Crown Solicitor for Queensland)

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

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   If the Court pleases, I appear with my learned friend, MR P.J. JEFFERY, to intervene for the Attorney‑General of the Commonwealth.  (instructed by the Australian Government Solicitor) 

We intervene as of right on the constitutional issue of question 2 to oppose removal and we seek leave to intervene in the public interest to support removal of questions 1 and 3 and we have no submission on question 4 and, subject to the Court’s sanction, I have discussed the order with my learned friends and they are content, because of our different position, for our submissions to be last.

BRENNAN CJ:   You have leave to intervene, Mr Solicitor.  Yes, Mr Sher.

MR SHER:   If the Court pleases.  Your Honours will appreciate from the written submissions that the proposal of the applicants is that the appeal to the Full Federal Court be remitted to this Court, but that only certain of the issues raised on the appeal be dealt with by this Court by way of a special case stated by a single Justice.  We have proposed in our submission the content of that special case which has run into some minor criticisms in the submissions of our opponents.  As to that, your Honours, might I say that the finalisation of such a special case, the question of whether the facts might be stated somewhat differently and the actual questions themselves, is a matter which could be finally determined by the single Justice and the points that are raised against us, in our submission, are not of any real substance.  But what is intended is to try and bring before this Court four matters of general importance arising from the Native Title Act and the effect of this Court’s decisions in the two Mabo Cases and in the recent decision in Western Australia v Commonwealth.

BRENNAN CJ:   But this is being done, Mr Sher, according to your notice of argument, on the assumption that Justice French was correct in finding that there was a pastoral lease.

MR SHER:   Yes, your Honour.  It is not intended to invite this Court to entertain any issues of fact other than those inferences that can properly be drawn from uncontroverted facts, in which event the appellate court is in as good a position as Mr Justice French to draw them.  We are not going to ask this Court to consider the question of whether in fact there was a pastoral lease.  On the assumption that there was and whether or not ‑ ‑ ‑

BRENNAN CJ:   That assumption might be challenged, may it not?

MR SHER:   We challenge it in our appeal but we are not going to ask this Court to ‑ ‑ ‑

BRENNAN CJ:   But why should we determine a question that may prove to be hypothetical?

MR SHER:   That point has been raised against us and, in our submission, it is not a hypothetical question.  The position at the moment is that there has been a finding that there is a pastoral lease without a reservation in favour of Aboriginals.  It is in that circumstance, we say, that notwithstanding that the native title was not extinguished and we desire to argue to this Court that that is the legal consequences of the uncontroverted material.

TOOHEY J:   But you want us not only to deal it without going into the facts but to deal with it as a hypothetical question of law, do you not?

MR SHER:   It is not a hypothetical question of law in view of the finding of fact.  The finding of fact, albeit we challenge it in our appeal, but we are prepared to assume for the purpose of argument in this Court is that there was a pastoral lease without a reservation.  Our submission is hypothetical to this extent, that we desire the Court also to consider the legal consequences if there had been a reservation of the nature set out in the material.

BRENNAN CJ:   Well, put it to the test.  If, at the end of the day, you succeed on your factual challenge before the Full Court of the Federal Court, what then would be the effect of a favourable decision by this Court in your favour?

MR SHER:   If there is no pastoral lease the decision of Mr Justice French would have to be reconsidered.  That was the basis upon which the direction was given not to register the application.

BRENNAN CJ:   I am asking you what would be the effect of a decision of this Court?

MR SHER:   In the instant case, it would not be necessary and to that extent it is hypothetical - - -

BRENNAN CJ:   That is right.

MR SHER:   But it is not hypothetical, we would submit, for us to be saying, on the facts as found, the legal consequences should have been different.  That is the current situation, that there is a finding against the claimants that there was a pastoral lease not containing the reservation which was, in fact, often contained in leases when they were eventually issued, the instruments.  So we say that is not a hypothetical situation at all; that is the finding of fact and we may lose that argument in the Full Federal Court.

TOOHEY J:   In that event you would have an answer which did not bear upon the particular litigation before the Federal Court, although it might have some persuasive value in other circumstances.

MR SHER:   It depends, your Honours, on what happens to our appeal to the Full Federal Court on the conclusion that the ‑ ‑ ‑

TOOHEY J:   Surely, but in the event that you are successful in your challenge to the existence of pastoral lease.  Could I just ask you this, too?  As a matter of timing, is there much to be gained by approaching it this way?  There is an appeal pending before the Full Court, is there not? 

MR SHER:   Yes.

TOOHEY J:   Has that been listed?

MR SHER:   Well, it is described in the affidavits as being on the stand-by list for the Full Federal Court sittings on 5 June in Melbourne.  What that actually means, I am not sure.  It may mean that it has a chance of being heard but the actual contents of the appeal book have not been absolutely finalised.  I am sorry, they were settled yesterday, apparently.  I was unaware of that.

TOOHEY J:   But in terms of stating a case in this Court and getting the matter on for hearing and so on, is there much to be said for taking that course as a matter of expedition, as against letting the matter be determined by the Full Court of the Federal Court and, if necessary, come on appeal to this Court?

MR SHER:   We believe so, your Honours, for the following reason.  Mr Justice French felt constrained by what has been said in Mabo [No 2] to come to the legal conclusion that he did, namely, that a pastoral lease had the effect of extinguishing native title.  In our submission, it is more than likely that a Full Federal Court may feel similarly constrained and that is a matter in respect of which there appears to be some difference of opinion within the membership of this Court, and which would need to be finally resolved by this Court.

BRENNAN CJ:   There are two situations, are there not, arising in relation to the pastoral lease question?  One is where there is no reservation in favour of Aboriginal occupation; the other where there is.  Indeed, within those two categories there could be shades of significant variation in the terms of any reservation that may be found in the lease.   You wish us to take on board a case on the hypothesis that there was no reservation in a pastoral lease.

MR SHER:   That is not a hypothesis, with respect, your Honour; it is the actual finding of his Honour Mr Justice French.

BRENNAN CJ:   It is the finding which has been made by his Honour which is now currently under challenge?

MR SHER:   Yes, your Honour.

BRENNAN CJ:   That finding was made not on the basis, I take it, of an actual instrument of lease?

MR SHER:   In the absence of an instrument, in fact.

BRENNAN CJ:   Quite.  That seems to make the case even less satisfactory as a vehicle for determining these important questions.

MR SHER:   The answer to that that I would give your Honour is that that is likely to be the situation in many instances of pastoral leases.  The Commonwealth’s material indicates that pastoral leases occupy something like 42 per cent of this whole country.  In fact, the material before Mr Justice French revealed that the actual issue of an instrument in many instances did not take places and in many instances took place years - sometimes in excess of 10 years - after a decision to grant the lease and often just before the lease was due to expire.

BRENNAN CJ:   That is the Queensland situation.

MR SHER:   Yes.  I am instructed, your Honour, that pastoral leases occupy a very large percentage of the land mass of Queensland.

BRENNAN CJ:   It used to when I was in practice there.

MR SHER:   I am told the figure is 42 per cent, but I cannot vouch for it.  The point that your Honour makes is correct, but the situation is likely to be similar in many other instances involving pastoral leases.

BRENNAN CJ:   One can see very readily the utility of having a clear decision by this Court on a question that could be applicable in a variety of cases.  The problem, though, is that the factual basis on which the decision has to be reached in order to get such a useful precedent is one which is on an assumption of fact that is itself under challenge in the same litigation.

MR SHER:   It is true, and we do not deny the fact that it is under challenge, but for the time being at least, in our submission, it is not inappropriate for the Court to take the findings of fact, as made by Mr Justice French and resolve the legal issues that arise therefrom.  There is another legal issue which we say is of importance and which involves ‑ and this appears to be conceded by the respondents - examining much the same historical material in relation to this issue of pastoral leases, namely, that is the question of the limitation of power of the Queensland Parliament to make laws which affected native title. 

GUMMOW J:   This is in colonial times?

MR SHER:   Yes.  As to that there is in this Court in Mabo[No 1] the considered decision of his Honour Justice Dawson, with whom two members of the Court agreed, but the matter has never been considered or the subject of a considered judgment by more than one member of this Court.  Since 1988 when the matter was argued very shortly, a great deal more of historical research has been undertaken and that matter was canvassed in some detail before his Honour Mr Justice French.  The respondents have contended in their written submissions that there would need to be a great deal of material examined in relation to this issue and, indeed, one of the points they have raised is that there is so much material it is inappropriate for this Court to look at it. 

But the fact is that that material was argued alongside all the other points before Mr Justice French in two days.  It was the subject matter of detailed written submissions which we would respectfully submit would be the way in which this matter should go forward in this Court if remitted to this Court, that is to say, that all the parties should put in detailed written submissions.  It would enable the Court to consider this very important question of the possible limitation of colonial powers in relation to pastoral leases by reference to this historical material.  On that issue we are pessimistic that a Full Federal Court with only judgments in 1988 against the point would feel constrained to resolve that issue contrary to the applicants. 

So that that issue, together with the pastoral lease issue, we would respectfully submit, are inevitably going to be brought before this Court.  I am not suggesting that special leave would be a matter of course, but the matters are so important, of such general public importance, that it is submitted it is likely special leave would be granted.  In which event, to answer your Honour Justice Toohey’s question, if these matters ultimately are to come before this Court, sooner or later, then by remission and this form a special case, we say they would come sooner.  There is, at the moment, a matter of special prejudice to these applicants and it is this, that there is at the moment a mining lease application to be determined by a mining warden and the Queensland Government has threatened to take steps to rescind a proclamation making the land claimed a reserve, to rescind that proclamation.  In their affidavit they have said, pending a hearing in the Full Federal Court, they will not make that rescission.  They say nothing about what they would do if the matter is remitted to this Court. 

But the position is that having had their application rejected, these applicants have, in effect, no standing at all in relation to this attempt to get a mining lease and it is therefore vital to them to have that issue resolved as quickly as possible.  In our submission, the quickest possible way is to bring the matter on and have it determined in this Court.  So that those factors, we submit, reveal both that it is more expeditious to bring it here and, secondly, critical that it be brought here as soon as possible.  That is leaving aside the question of judicial power which is also raised as to whether or not Mr Justice French exercised judicial power contrary to the constitutional provisions.

BRENNAN CJ:   Mr Sher, looking at the two parts of question 1 which you have in your notice of argument, what is the reservation which is referred to there?

MR SHER:   It is on page 2 of the summary of argument in subparagraph (c).  His Honour Mr Justice French found as a fact, which is not challenged by anyone, that had an instrument actually issued, it would have contained reservation in those terms.  There is a contest between the parties as to whether the second pastoral lease, issued in 1907 but backdated to 1904, would have contained such a reservation.  I withdraw that and reframe it.  The instrument that was issued did not contain it, but the applicants’ case is that such a reservation is to be implied.  So that in respect of both the pastoral leases, the one actually issued and the one granted but not physically issued, the applicants’ case is that they would have contained, either expressly or by implication, such a reservation.

BRENNAN CJ:   From what does the implication arise?

MR SHER:   That brings us, your Honour, to this argument about the limitation of power, especially in relation to pastoral leases.  There is a wealth of material of historical nature which Mr Justice French discusses, not completely but substantially, which we say would lead to the conclusion that such powers as the Queensland Parliament had to make laws pursuant to which pastoral leases were granted would have been subject to a limitation in favour of Aboriginals of this nature, a reservation of this kind, and therefore their legislation would have to be construed, if it was within power, to be subject to that limitation and therefore one would imply such a limitation in any pastoral lease that was granted.

TOOHEY J:   The way you put that, Mr Sher, suggests that the reservation does not depend upon the statute itself.

MR SHER:   No, it does not.

TOOHEY J:   My recollection is that some land Acts, for instance, provide for a - by the Act itself - for the reservation.  So, whether it forms part of the lease or not it might well operate, but you are saying here that if there is a reservation it has to be found in the document itself, are you?

MR SHER:   No, there was an Order in Council pursuant to which, when the instruments were actually issued, they contained this reservation and Mr Justice French’s decision was to the effect that you could not say that when the instrument would have issued here it necessarily would have contained it because it was an administrative requirement rather than a statutory requirement.  That is how it arises in this particular case, your Honour. 

Your Honours, in answer to your Honours questions I have effectively said most of what I wanted to say in any event, but I think I should perhaps add this, that as we apprehend the way in which the case would need to be argued it would involve of necessity, as this Court has done in recent times in both the Mabo Cases and Western Australia v Commonwealth, an examination of historical material and that, we submit, is no good reason not to entertain the matter. 

The Court has done that very recently in the past in respect of these very issues and, in our submission, it would be appropriate for directions to be given on these issues that parties submit detailed written submissions to assist the Court in considering that material.  We quarrel with the respondents’ assertions as to how substantial that material is and how long it would take to deal with.  In our submission, it could, as Mr Justice French did, be dealt with in oral argument relatively shortly. 

BRENNAN CJ:   Mr Sher, have you been able to turn your mind to the terms of a stated case?

MR SHER:   We have proposed in our submission in paragraph 1.2 the terms of the stated case and the questions that we would have the Court entertain and there has been some modest criticism of the assertions of fact.  We have been accused of over‑stating certain matters and there has been some criticism of the questions by one of the respondents in relation to 1(b), it being asserted that there being no reservation in fact in the instrument which issued in 1907, it is a hypothetical question in relation to that particular lease.  I have dealt with that by saying we say such a reservation is to be implied, but our answer to any of those criticisms is that this matter could be finalised by a single Justice, when the parties could make submissions as to the actual content and, whilst we put this forward in the belief that it is satisfactory, we are quite prepared to consider and join in any sensible discussion about refining any of the stated facts or questions, but it does raise, in our submission, the essential facts and the essential questions of public importance.

One of those questions is a rather strange one and we only raise it because, on its face, it would seem to call for some resolution; that is the question of the conflict between section 144B of the Queensland Act and sections 11 and 19 of the Commonwealth Act; that is question 3.  In a written submission to Mr Justice French in November the State of Queensland did contend that its legislation had the effect that a pastoral lease extinguished native title.  It has subsequently, in a further submission, not adopted that position and said this section is merely declaratory of the law and if the common law does not work in a particular fashion then the section makes no difference. 

The section itself, if you look at it, purports to say that a pastoral lease extinguishes native title.  If I could just quickly take your Honours to that section in the Native Title (Queensland) Act, section 144B.  It is actually set out at page 114 of the application book if your Honours do not have the legislation readily available.  Your Honours will see his Honour recounts that the submission of 30 November on the behalf of Queensland declared and made it clear “that a pastoral lease extinguishes native title”.

The section itself gives an example, which you will see at about line 13 as an example of extinguishing of native title, namely the issue of a pastoral lease.  Now that is a short question, your Honours, as to whether that section has, as it purports to, that effect.  On the judicial power point, if I may say something shortly about that - I would ask for some further time, your Honour, it will not take very long.

BRENNAN CJ:   Yes.

MR SHER:   The judicial power point, your Honours, arises because Mr Justice French adopted a procedure which resulted in the claim effectively being rejected at a preliminary stage.  On the assumption that his Honour correctly applied the relevant section of the Act - and he was acting at that stage as a presidential member which does not necessarily include a justice, so it is an exercise of non-judicial power.  If his Honour was correct then the appeal provisions, we say, are insufficient to save that exercise of power and the relevance of Brandy’s Case is that it focused attention recently on this question and illustrates that unless an appeal is of a particular nature then what appears to be the exercise of judicial power by an administrator is not saved.

The point we wish to argue in relation to this issue - and we understand this question is arising in other matters - is that Mr Justice French exercised judicial power and if that is so, then his decision is invalid. The question really involves the construction of section 63 of the Native Title Act and the question of whether or not when a matter is referred by a registrar to a presidential member, a decision which amounts to a final rejection of a claim, so it is fatal to the claim, is an improper exercise of judicial power.

TOOHEY J:   Why should not we have the benefit of the views of the Full Court of the Federal Court on that matter?

MR SHER:   It is a relatively short point and with respect, your Honours, it is unlikely that - I am not sure how to answer that question politely - that is a matter that requires speedy resolution and whilst the Court would undoubtedly gain some benefit from an analysis of this point by others, and it has not been raised before Mr Justice French, nonetheless it is a matter of urgency and, therefore, in our submission, it is a matter which ought to be resolved.

It goes to the heart of the procedures under this Act in relation to unopposed claims essentially and what his Honour Mr Justice French did here was to, in an administrative way, finally determine adversely to the claimants their claim.  This is activity which must be going on on a not infrequent basis and it calls for speedy resolution and in the particular case of these applicants their position is prejudiced unless they can get their application registered.  I will not trouble your Honours with the detailed analysis of the Act which the Court engaged in in Western Australia v Commonwealth about the effect of becoming a registered applicant but it is a question of urgency mainly, your Honour.

TOOHEY J:   Question 3 is one in which the Solicitor for the Commonwealth points out that the Commonwealth, as of right, can ask that that matter be remitted to this Court.  If the Court were minded to leave the other questions where they stand, do you have a view about question 3 on its own?

MR SHER:   Yes, we would desire to have that matter resolved as quickly as possible and authoritatively by this Court.  That is our position in relation ‑ I am sorry, that is question 3.  Did your Honour mean question 2?  I must say I ‑ ‑ ‑

TOOHEY J:   No, I meant question 3.

MR SHER:   The judicial power question is question 2;  I thought your Honour was asking me about ‑ ‑ ‑

TOOHEY J:   Yes, I beg your pardon.

MR SHER:   The judicial power question we would seek to have this Court determine authoritatively as quickly as possible.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Sher.  Mr Gibson?

MR GIBSON:   Thank you, your Honour.  Your Honours, with respect, the submissions just made wholly fail to address the issues raised in the summary of argument by the first respondent as to why any of these questions ought to be removed.  As to question 1, to assert, as has been done, that the issue raised by question 1 is not hypothetical because it proceeds upon the facts as found by the President of the tribunal is anomalous whilst those facts themselves remain the subject of appeal to the Full Court of the Federal Court.

There is no escaping the conclusion that a consideration of the issues raised by question 1 by this Court must be hypothetical whilst those grounds of appeal remain alive.  The outline of submissions of the State of Queensland point out further bases upon which the resolution of the issues raised by question 1 would be further hypothetical and premature and I would point out in this context the interrelationship between the issue raised by question 1 and that raised by question 4.

If question 4 is answered in the affirmative, that is, if the answer which the applicants here seek is obtained by them from this Court and it is held that the powers of the colony in the State of Queensland to extinguish native title are limited by the statutory instruments identified in question 4, then it is unnecessary to proceed to answer question 1.  The reason for that is that, either upon their proper interpretation the leases in 1883 and 1905 did not extinguish native title, but more relevantly for this purpose, if they did, then they would be beyond the power of the State of Queensland and hence however that issue is addressed, if a positive answer is given to question 4 it is unnecessary to deal with question 1.

Question 4 is itself not appropriate for removal because it is inevitably bound up with wide‑ranging and extensive factual issues.  The question does not pose a narrow issue of whether the powers of the Colony and the State of Queensland were in any way limited by the instruments there referred to.  The question proceeds on the basis of whether the powers of the Colony and State of Queensland to extinguish native title by the grant of pastoral leases was limited in that way.  The applicants’ submission was encapsulated by his Honour at page 75 of the appeal book in this context, where at line 20 his Honour notes that:

The applicants submit that the legislature of Queensland, both before and after federation, lacked power to make laws extinguishing native title.

But then more relevantly, from lines 25 to 30, his Honour notes their contention:

that the legislative power is expressly limited by contracts, promises and engagements existing at the time of the enactment of Imperial and local laws from which Queensland’s constitution is derived.

So question 4 is not to be determined as a neat issue of law in a vacuum, so to speak.  Rather, it is to be determined against the background of what contracts, promises and engagements, if any, existed at the time of the enactment of those laws and what was the substance of those contracts, promises and engagements.  His Honour went on to find below that there were no relevant contracts, promises or engagements which existed in an enforceable way for the benefit of Aboriginals.  He determined that factual issue against the applicants.

BRENNAN CJ:   Is that finding under attack in the Federal Court?

MR GIBSON:   Yes, it is.  The issue is raised generally, your Honour, at paragraphs 36 to 44 of the notice of appeal at page 124 of the appeal book and, in this context, most relevantly paragraphs 43 and 44 and, indeed, paragraph 41.

Now, those paragraphs strike at the vast body of factual material which his Honour considered in his reasons and which is perhaps regrettably but inevitably before the Full Court.  The applicants have not put forward a proposal which would enable question 4 to be determined in isolation from that factual background.  Indeed, we are, with respect, unable to see how that can be done because the factual background is necessarily and intrinsically bound up with the formulation of the question.  That being so, with respect, and the matters otherwise being before the Full Court - we are informed, I might say, that the appeal has been put on stand-by, whatever that might actually mean, stand-by in the sittings commencing 5 June, but I might also say that that is not simply the act of the Registrar of the Federal Court.  An application was made before his Honour Justice Drummond in the Federal Court in Brisbane for the expedition of the appeal from Mr Justice French and his Honour took the matter up and informed the parties that he had taken the matter up with the Chief Justice of the Federal Court. 

So it is our understanding, albeit perhaps implicitly, that whether those dates become available may well depend upon the outcome of today’s application.  It is our submission in short with respect to question 4 that it is a matter which although important, we do not deny that, it is a matter which is best left to the Full Court so that this Court may obtain what we would respectfully submit is the obvious benefit of the Full Court’s consideration of the issue so raised.

Your Honours, with respect to questions 2 and 3 - perhaps it is easier to deal with question 3 firstly, the submission which was made by our learned friend was that it is a short question concerning the effect of section 144B of the Queensland Act.  That it may be but that, with respect, is not a sufficient basis to bring it to this Court for the simple reason that, short question though it may be, it is not a question in dispute.  It is not a question which the State of Queensland would wish to challenge and, notwithstanding the criticism that we made of a submission which the State of Queensland made to Justice French in the tribunal last year, the written submission which is exhibited to the affidavit of Mr Smith clearly and, if I might say, repeatedly states the position of the State on that issue.

We would, therefore, submit there is no point of controversy.  There is no benefit to be derived by this Court considering it.  If other matters remain pending in the Full Court, no doubt our learned friends will make such submissions as they see fit to make and, if they are to the effect of the submissions made by them below, they will not be challenged by us.

With respect to question 2:  although it is said to raise an issue arising out of the recent decision of this Court in Brandy, in fact, it does not raise a Brandy point at all.  The point of principle in Brandy concerned or turned on the significance of the registration of the determination of the Human Rights Commission in the Federal Court and the provision in the relevant legislation which deemed it to take effect as a judgment of the Federal Court, notwithstanding that that court had given no judicial consideration to the matter the subject of the determination.

As we have pointed out in our submissions, that is not a point which arises here.  The Native Title Act does contain provisions for the registration of determinations of the tribunal in the Federal Court. But this not such a case. The power which the President exercised under section 63 was not a power pursuant to the inquiries provisions of the Act which provide for registration of determinations. His Honour made no decision which is characterised by the Native Title Act as a determination and his Honour made no decision which was capable of registration in the Federal Court, therefore, Brandy does not arise.  It is a point which could have been raised below but was not.  It is a point, along with the issue raised by question 3, as to which the applicants have sought leave to amend their notice of appeal.  That application was taken before Justice Drummond some weeks ago.  His Honour declined to rule on the application and reserved the issue to the Full Court. 

Should the Full Court grant the leave which the applicants require, subject of course to any removal by this Court in the meantime, then the issue can be argued and this Court will have the benefit of the considerations given to it by the Full Court.  In the result it seemed that the submissions made by our learned friend came down to this:  that it is a matter of urgency.  That, we would respectfully submit, is not a sufficient basis upon which to warrant an order for removal.

Your Honours, I will to add only one final matter and that is the submissions made by the Commonwealth as to the importance of the issues raised by question 1.  We do not deny that the point of principle which may be able to be fleshed out of question 1 could be regarded as important.  The difficulty, however, is that question 1, necessarily of course, proceeds upon the facts as found below and, in our submission, there is not a sufficient basis disclosed for interfering with the normal appellate process to the Full Court which may be taken by way of special leave application to this Court by an unsuccessful party if they choose to do so.  If this Court considers a special leave point is revealed by the reasons of the Full Court then this Court will deal with it with the benefit of the Full Court’s consideration of the point.

In so far as the issue of urgency is concerned, it would seem, with respect, that the most expeditious way of resolving each of these questions, and certainly the most comprehensive way of doing so, is to allow the appellate process to run its course.

BRENNAN CJ:   Thank you Mr Gibson.  Mr Fraser?  Mr Fraser, I think you can assume that we understand the basic terms of the debate as it has thus far proceeded, so if you have anything to add.

MR FRASER:   Yes, thank you, your Honour.  Just one or two comments.  The first is may I just correct something in our outline, the second respondent’s outline, in paragraph 18(b), on page 6.  We had submitted that there was an estimate that the mining warden’s hearing, which is due to commence on Monday, would last many months.  That was correct when we put it in the outline but I am instructed that, I think it was late yesterday, the Carpenteria Land Council have withdrawn their objections to the grant of the mining lease so that we expect the hearing now to be short.  It is commencing on Monday.  So we expect that there may be a recommendation one way or the other by the warden within a relatively short time.

BRENNAN CJ:   Yes.

MR FRASER:   Certainly we expect that there would be a recommendation well before any hearing, either in this Court or in the Full Federal Court.  Then, of course, the government would then be empowered to make a grant if there were a recommendation by the warden.  So far as the removal application is concerned, can I just add to what has been said, that it is my submission that removal does have the potential very seriously to delay the resolution of the question whether the pastoral leases in this case did or did not extinguish native title because, if answered by this Court on an hypothetical basis one way and then remitted back to the Federal Court and then there is a question which is raised in the Full Federal Court whether a lease was granted absent the issue of an instrument, as has been said, that is a very common situation in Queensland and one can expect a further application for special leave to this Court in that situation.       So that it is certainly possible that the matter would come back to the Court by way of an application for special leave, and from my client’s perspective that does have the possibility seriously to delay the litigation. 

In addition to that, can I just mention that the suggestion that there is a reservation in the 1905 lease seems to be based purely upon implication from matters such as the history of the colonising power and the colonial governments.  So far the form of the reservation which is said to be in the 1905 lease has not been expressed.  My learned friend for the applicants did say in his submissions that it was in the same form as the stated reservation in the earlier lease.  But that is not the way the case was put below and there is scope for arguing in the Full Federal Court that the reservation alleged is implied in a quite different form, in which case any answer by this Court with respect to the lease subject to a reservation would be purely hypothetical.  That is all I wish to add to what has been said, your Honours.

BRENNAN CJ:   Thank you Mr Fraser.  Is it desired that Mr Sher should reply before you, Mr Solicitor, or otherwise?

MR GRIFFITH:   We are speaking on both sides so perhaps we should go next. 

BRENNAN CJ:   Yes, very well.

MR GRIFFITH:    If the Court pleases.  It would seem there are two issues on this question of public interest.  The first is that there is an obvious utility in having an early and clear decision of the Court on this pastoral lease issue and its effect on native title.  We did exhibit to the affidavit of Janine Rosemary Ward a map which indicates that some 42 per cent of Australia, the white parts, do comprise pastoral leases.  The relative percentages are Western Australia, 38 per cent of the State; South Australia, 42 per cent; New South Wales, 41 per cent; Queensland, 54 per cent; Northern Territory, 51 per cent. 

The position of the Attorney-General of the Commonwealth is that it is the case currently that in decisions about future land management over questions involving pastoral land - and these obviously arise, for example, with the issue of grant of mining titles - States and Territories have now to make assessments as to the possible native title implications of any proposed Acts.  So that at the moment, it seems, they must act on the basis there is a need to comply with the requirements of the Native Title Act, and this assessment is now made on a daily basis in the absence of any definitive judicial statement on the effect of pastoral leases on native title.  And the combination of uncertainty, expense, anxiety, affects the operations of governments, not just the Commonwealth Government, in performing the land management functions.

Of course, your Honours, the tribunal in its function assists in the mediation of native title claims.  The affidavit of Ms Ward indicates that some 50 per cent of native title determination applications involve applications including land held under lease from the Crown and that 50 per cent of the applications which have been accepted have included pastoral land.  At the moment pastoralists feel compelled to become parties to applications over their land and respondent parties are unwilling to mediate claims whilst the pastoral lease issue is unresolved.  Earlier this week the Northern Territory announced it would boycott future mediation because of, amongst other things, uncertainty over pastoral leases.

So, for these and other reasons, your Honours, it is submitted to the Court that there is a real public interest in having an early and clear determination by this Court of the pastoral lease issue.  The problem of course is the factual basis for such a determination.  It is the submission of the Attorney-General of the Commonwealth on this issue that one matter is clear, and that is that the 1905 lease did issue.  Although the document itself is not before the Court as part of the application book, the lease itself is referred to at the bottom of page 112 and the top of page 113 of the application book.  The last sentence on page 112 says:

In the event, the consolidated lease did not issue until 14 November 1907.  It was expressed to be for a term of 42 years from 1 July 1904.  It contained no reservation in favour of Aboriginal persons.

As we understand the position, not being a party to this matter, that lease is a document which can be before the Court and it is a lease in terms, as indicated by the determination of his Honour Justice French, which does not contain a reservation.

We would submit, your Honours, that there is such a clear and obvious public interest in having an authoritative determination of this Court on the pastoral lease issue that if it is the case that it is only this 1905 lease which issued in 1907 without a reservation which should be now brought up before the Court and considered on this issue of what is the effect of a pastoral lease issued in 1907 for a term of 42 years in respect of this land, that is an issue which fairly may be put before the Court not as an abstract one, but as a real issue which is to be resolved between the parties.

Your Honours, in the event that it is determined that an issue of a lease without a reservation does not affect any other pre‑existing native title, on our understanding of this matter, that would be sufficient for the applicants to be entirely successful in their application and that would be the end of all issues, because in that case the result would be as of course such claim to native title which, prima facie, is made under the application would be entitled to registration.  So there would be no outstanding issue to be referred to the Federal Court.  If it were the case, your Honours, that the issue of a lease in these terms without a reservation would determine native title, obviously there would be further issues to be considered by the Full Court of the Federal Court finally to determine the issues in dispute between the parties.  But, Your Honour, intervening in the public interest, the position of the Attorney-General is that this issue of what is the authoritative view of this Court on the pastoral lease issue in respect of its operation ‑ ‑ ‑

BRENNAN CJ:   But how do you define the pastoral lease issue for the purpose of this submission?

MR GRIFFITH:   Your Honour, the preference of the Attorney, were there to be a choice, would be to have the Court consider the issue both on the basis, “Is there a reservation?”, or, “Is there not a reservation?”, but if that is not possible because the Court will regard that as an abstract issue, your Honour, it would be sufficient to at least advance the public interest in this issue if the Court considered the terms of this lease in respect of this claim for native title.  It is a document which we put before the Court.  There is a determination, your Honour, that that lease issued and as we understand it neither party challenges that. 

There is a further issue which, of course, cannot be resolved by this Court, at least not in first instance, as to whether there is to be an implication, your Honour, of some reservation but, in our submission, your Honour, the fact that that is put as an issue does not prevent the Court from looking at this lease as being a matter which is truly in issue between the parties and which, depending on one answer to the question so put, would resolve completely of the matter.  It is not unusual, your Honour, for decisions of this Court particularly on questions reserved on matters removed not finally to resolve all matters but, indeed, to be removed on the basis that the answer of the Court for the question will significantly advance the final resolution and enable the other issues to be determined on remitter to the appropriate jurisdiction.

BRENNAN CJ:   Your argument has considerable attraction, Mr Solicitor, but it seems to me that in practical terms it has got difficulties in its application to the production of a judgment in this Court.  If this Court were to take on board the question of whether or not a lease that contained no reservation in favour of Aboriginal interests was effective to extinguish native title, it seems to me to be extremely difficult to contemplate that a judgment would be written on that without adverting to the problem of the reservation and what effect one sort of reservation or another might have.  In other words, one could on one view consider that the issue of a pastoral lease, with or without reservations, was sufficient to extinguish native title or one might take the view that the issue of a lease without a reservation was sufficient to extinguish native title but it may be that reservations could preserve it in some form or another;  or, of course, one could take the view that it has no effect on native title.

Those first two hypotheses seem to me to necessarily involve a general consideration of the nature of the rights created by the lease including any reservations that there might be in a lease in order to determine the ultimate effect that a lease could have.

MR GRIFFITH:   With respect, we agree entirely with your Honour’s observations as to that, your Honour.  Of course, in the Mabo Case itself there was an abstraction in consideration and that in essence the issue of tenure throughout mainland Australia was considered by the Court in its judgment unrelated in that consideration to the specific circumstances that resulted in the particular order in respect of the Mabo claim itself and, of course, various of their Honours’ judgments did touch upon this lease issue and also touch upon the reservation issue.

Your Honour, we would suppose that in considering the lease issue the question of reservation would necessarily be involved.  The preferred position of the Attorney would be for the Court to consider the reservation issue directly rather than implicitly, as obviously will be the case in what your Honour said.  Now, your Honour, there is one obvious vehicle to do that and that would be to look at the precise terms of the reservation which are alleged in this case and for the Court to say, if this lease does, as is claimed by the applicant, have a reservation in those terms, that would or would not affect which would otherwise be the position.

Now, our submission on that, your Honour, is that in the circumstances is not a hypothetical unreal issue which is one not appropriate for the Court to decide and we do refer back on the issue of the Court’s discretion as to whether or not to proceed on this basis to the obvious issues of public interest which the Attorney seeks to represent before the Court, not as of right as a constitutional issue, but merely the issue that all the governments of Australia, all the people of Australia, both potential claimants and those potentially liable to claims, your Honour, have in knowing what is the underlying authoritative legal position and that is an answer which can only be given by this Court and, with respect, your Honour, on that issue it cannot reasonably be expected that a judgment of the Full Court of the Federal Court may advance with such authority or assist the Court sufficiently so as to justify delay, which we submit is real and in the public interest to be avoided if that is possible.

Now, your Honours, it is fully appreciated that there are problems in this case and it is a pity that this issue of whether there is a reservation or not is not common ground.  Unfortunately, after the time which has elapsed since Mabo, this seems to be the best and only case which is available for the purpose of testing this.  It may be, your Honour, within 12 months either the appeal will come up through the Federal Court or there will be some other and more appropriate case, but the view of the Attorney which I represent today is that there is this public interest and the submission of the Attorney is that the Court should, if fairly it can be said that the facts which are before the Court in this matter can be the vehicle for consideration by this Court on removal of that issue, accepting that that is a matter to be determined by this Court and it is a difficult issue.

Ordinarily one would say this is not good enough, but it is submitted, your Honour, that there is a public interest in saying this is specific, although it will not - if there is one answer rather than the other finally to dispose of the matter, it will dispose of the matter one way, so that is real and we submit it is sufficiently real and, of course, your Honour, it must be the case that if the question of a lease without reservation is removed, issues of what would be the effect of a reservation would be canvassed before the Court in argument.

Now, your Honour, that could be dealt with, we submit, firstly in the way the question should be reserved to the Court and that is something, your Honour, would could be considered by a single Judge, were the matter to be removed on this issue.  Your Honour, we would have, as a first preference, in our submission, that it would be best to face up to this reservation implicit issue by taking the terms alleged as the reservation here and having a question stated with respect of them.  So there are specific terms rather than the open textured issue of possible reservations.

Your Honour, it is a matter completely within the discretion of this Court.  We accept that it is a borderline matter but refer to the public interest and the Attorney’s sufficient a matter which the Court should weigh heavily into account before exercising the power to remove.  I should indicate, your Honour, that were this even a constitutional issue, it does seem to us that it is for the Court to determine what is appropriate and right and that it is not something where it should be removed and forced upon the Court.

BRENNAN CJ:   The difficulty I see in the removal at this stage, Mr Solicitor, acknowledging entirely the force of what you say in relation to the public interest and having some of these questions determined, is whether it would lie within the ability of the Court to determine them with sufficient precision in the circumstances of this case to give the kind of ruling which would be applicable without equivocation in the variety of cases that could arise.

MR GRIFFITH:   Your Honour, one will never cover all the variety of cases, for example, the issue of reservation clauses.

BRENNAN CJ:   One will not deal with the variety in terms of each case, but one needs to understand precisely what the facts are in order that a ruling can be given with the necessary authority and clarity.

MR GRIFFITH:   Your Honour, may we go to the narrowest point and that really can be illustrated by the issue of question 3 and whether section 144B is valid.  Your Honour, our position is that that section is merely declaratory of the common law;  therefore, there is no real issue and we would not suggest that it be issued and to make clear from your Honour Justice Toohey’s question, the Attorney does not seek to remove that question as of right.  We seek to remove no question as a right.

Your Honour, that deals with the bare question of the issue of pastoral release, not referring to reservation.  It is our position, your Honour that the answer to that question, if that is the only question that could be answered, would be a great advance to meet this real and immediate public interest of uncertainty.  If, your Honour, a judgment on that issue could not deal with the issue of reservation at all, nonetheless, we submit there would be a real public interest in having an answer to that question. 

It does seem to us, your Honour, that on any view, and whether or not there was a separate question as to what is the effect of a reservation in this term or that term, some issues as to the effect of reservation necessarily would be considered by a judgment just as already they have been touched upon in the Mabo judgment where they did not arise at all.  Your Honour, it also must be the case that the question of reservations, even on a direct consideration by this Court of a particular lease where there is no issue about the lease having a term with a reservation, will not necessarily answer all issues on all reservations, just as it may not answer all issues as to the terms of the lease, whether a lease for a month has the same effect as a lease for 999 years.  It may be that the decision of the Court will answer those questions;  it may be that it will be an incremental consideration.

Your Honour, it is the case that a substantial part of the public interest would be met merely on the narrow answer of a lease without reservation but, your Honour, it must be made clear that submissions, whether or not there was a question directed to a lease with a reservation, would necessarily include issues relating to the possible effect of reservation and it would be a matter for the Court as to the extent to which they were dealt with in the judgment.

Your Honour, we put those submissions, agreeing entirely with what is clearly the obvious difficulty in respect of the way this matter comes to the Court.  Of course, the determination of Justice French is not a judgment, it is a determination.  So, this is equivalent to removing the matter before trial at all.  We do not say that to detract from the force of argument, your Honour but we are very conscious of these difficulties.

BRENNAN CJ:   Mr Solicitor, what do you say about the issues arising under question 4 and the material that may be in dispute about the promises that might be considered as affecting legislative power?

MR GRIFFITH:   Your Honour, I am not instructed to make any submission about that but by not making a submission we make it clear that we do not regard this as an issue appropriate now to be removed to this Court.

BRENNAN CJ:   May it not affect question 1?

MR GRIFFITH:   In our submission, an answer to the Court to question 1 is an answer to a real issue between the parties, as we have submitted, on one view, it could finally dispose of the issue because if the lease makes no difference to the claim for pastoral lease then none of these issues would be

relevant to prevent the appellants obtaining registration.  So that on question 1, if answered one way, could still finally resolve the matter.  In our submission, that is sufficient for the Court, if it is minded to otherwise take it, to take it and leave the question 4 to be resolved.  If it remains relevant after the determination of question 1 the matter may be remitted.

BRENNAN CJ:   If the view should be taken, in accordance with Mr Sher’s submissions, that there were promises made of a kind which limited colonial legislative power - and I say nothing as to the likelihood of that submission being accepted, but let us assume for the moment that that argument is advanced and receives consideration, then the implication that is sought to be based on that is a reservation to be included in the lease.  So that looking at legislative power, one comes to necessarily consider the lease with a reservation in it.  If the lease with such a reservation in it does not extinguish native title, then that in itself is an important question.  It precludes the answering of the question, “What if there were no reservation?”.

MR GRIFFITH:   In effect, your Honour, it says:  what if there is no lease?  We would say it should be treated like the snail in the bottle, that that is something to be determined after the highest court in the hierarchy determines the underlying basis of legal liability.

BRENNAN CJ:   The situation of Mrs Donohue does not really lead to any encouragement to adopt that ‑ ‑ ‑

MR GRIFFITH:   No, your Honour.  All your Honour’s remarks are accepted with great force.  The difficulty is the countervailing public interest that we seek to represent today.  May I mention briefly the question of judicial power.  Of course, this is not a direct Brandy point, your Honour, but obviously following Brandy there was consideration of whether or not there is going to be legislative consideration of these issues.  On any view the point is something where the Full Court of the Federal Court is able to consider the issue and give the Court the advantage of its views.  If the Court pleases.

MR GIBSON:   Your Honours, might I have leave to inform the Court of a factual error in the submissions made by the learned Solicitor‑General which may be of some moment to the content of his submissions?

BRENNAN CJ:   Yes, Mr Gibson.

MR GIBSON:   The point which I wish to inform the Court of is the learned Solicitor‑General’s submission that in effect, in this morass of

dispute between the parties, there appears to be one fact that is common ground and that is that a pastoral lease issued, known as the 1905 pastoral lease, and that there was no express reservation clause included in that lease.  That is in fact not common ground, and that it is not common ground appears from the applicants’ notice of appeal at page 123 of the application book where, at paragraph 29, the applicants raise as an issue in appeal that his Honour erred:

in finding that a pastoral lease under the Land Acts 1897 and 1902 (Qld) (“the 1904 pastoral lease”) was granted over the claim area -

and further, in the applicants’ summary of argument at page 3, paragraph 5, it is made clear that before his Honour Justice French and by notice of appeal, the applicants have contended, inter alia, that on the facts found by Justice French, no pastoral lease ever took effect over the lands.

BRENNAN CJ:   Thank you.  Yes, Mr Sher.

MR SHER:   That last matter, your Honour, fails to distinguish between what appears to be the point and what in fact is the point.  There is no contest that a document issued.  So the points made by the Solicitor‑General about the Court being able to look at an actual instrument are correct.  But there is argument about whether in fact there was a grant within the meaning of the legislation and the effect of it.  But for the purposes of this Court, it can be assumed that there is no contest between the parties that an instrument which can be produced actually issued.

Your Honours, in relation to question 4, the question of limitation of power, the issue depends upon an analysis of historical materials which were put before Mr Justice French.  The key document is in fact an Order in Council of 18 July 1849.  What the Court would be asked to do is in effect no different than what his Honour Mr Justice French did, and that is to say to look at that material and draw appropriate inferences from it.

BRENNAN CJ:   You are saying a key document.  Are you saying the sole document?

MR SHER:   I am not saying it is the sole document but is the key document and, whilst we do not quarrel with the proposition that there is a body of material there to be looked at, there are no contested findings of fact.  One looks at the documents and draws appropriate inferences which this Court is in just as good a position to do as Mr Justice French if we were to treat him as the trial judge. 

Could I just say something shortly about the judicial power point again, your Honours. I did not draw attention to section 63 in its actual terms and it would be useful to do so in the light of what submissions have been made. Could I just ask your Honours to look at that section. It is at page 39, if your Honours have this publication. Section 63(1) requires the Registrar to accept the application:

unless he or she is of the opinion:

(a)      that the application is frivolous or vexatious; or
(b)      that prima facie the claim cannot be made out.

And then, if she forms that view, it has to be referred to a presidential member and the presidential member’s role is set out in subsection (3).  If he is of the same opinion he must give notice and give the applicants an opportunity to be heard on the question.  What the applicant has to do is:

satisfy the presidential member that.....a prima facie claim can be made out.

What Mr Justice French did was he did not decide the facts prima facie, he decided them absolutely.  On the basis of the facts that his Honour found ‑ ‑ ‑

BRENNAN CJ:   Yes, he understood that, I think.

MR SHER:   He rejected the application.  The only point of Brandy, your Honours, is that it drew attention to the issue and discusses the question of what sort of appeal provisions are necessary to save what would appear to be the wrongful exercise of an administrator of judicial power.  That is the only point of Brandy.  We are not going to invite the Court to consider Brandy.

GUMMOW J:   That brings one to section 168, does it not?

MR SHER:   Yes, that is the appeal provision, I think.  Or is it section 169

GUMMOW J:   Section 168(5), for example.

MR SHER:   No, I do not think it does.  It is not a determination, your Honour.  I think it is section 169 that it brings you to.

GUMMOW J:   Yes, section 169(5).

MR SHER:   But the actual right to appeal is section 169(2).

GUMMOW J:   Yes.

MR SHER:   I do not wish to say anything further, your Honour.

BRENNAN CJ:   The Court will adjourn briefly in order to consider what course it should take.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.13 AM:

BRENNAN CJ:   The Court is conscious, for the reasons stated by the Solicitor‑General for the Commonwealth, of the desirability of a speedy resolution of the issues arising in this litigation.  Generally speaking the jurisdiction of this Court may well in appropriate cases need to be exercised to determine the important issues which have arisen and will arise under the provisions of the Native Title Act 1993 (Cth). The importance of such issues demands, however, a firm foundation of fact in order to avoid the possibility of uncertainty in the application of any decision given by this Court.

This application invites the Court to consider important issues on the footing that findings of fact by the Native Title Tribunal which are challenged on appeal to the Full Court of the Federal Court be taken to be the facts in the case.  As we appreciate the state of this litigation, a removal of issues at this stage may result in a ruling that would not have the clear authority which the public interest demands and, so far as this particular case is concerned, if the Court were to rule in favour of the applicants’ submissions on questions of law, that ruling could prove to be inapplicable at the end of the litigation.

In these circumstances the application to remove the issue raised by question 1 proposed by the applicants should be refused.  If thge issue raisedby question 1 is not removed it would not be appropriate to remove the other questions.  For these reasons the application is refused.

MR GIBSON:   I ask for costs, if it please the Court.

BRENNAN CJ:   You do too, Mr Fraser?  You have nothing to say, Mr Solicitor?  It will be refused with costs.

AT 11.16 AM THE MATTER WAS CONCLUDED