North Ganalanja Aboriginal Corporation v Queensland

[1996] HCA 2

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

NORTH GANALANJA ABORIGINAL CORPORATION AND ANOR FOR AND ON BEHALF OF THE WAANYI PEOPLE v THE STATE OF QUEENSLAND AND ORS

(1996) 185 CLR 595

8 February 1996

Aboriginal People—Administrative Law—Constitutional Law

Aboriginal People—Native Title. Administrative Law—Claim for Determination of Native Title—Function of Registrar, President of National Native Title Tribunal—Prima facie claim—Fairly arguable question of law—Information to be taken into account. Constitutional Law—Judicial Power—Advisory Opinions. Native Title Act 1993 (Cth) s 63.

Headnote

Hearing

CANBERRA, 7-8 February 1996
#DATE 8:2:1996 (Date of Order) 21:3:1996 (Reasons for Judgment Delivered)



Counsel for the Applicants A R Castan QC with
B A Keon-Cohen and
R W Blowes



Solicitors for the Applicants Ebsworth and Ebsworth


Counsel for the First Respondent P A Keane QC,
Solicitor-General for the
State of Queensland with
G J Koppenol and
D A Mullins



Solicitor for the First Respondent B T Dunphy, Acting Crown
Solicitor for Queensland



Counsel for the Second Respondents H. B. Fraser QC with
P L O'Shea



Solicitors for the Second Respondents Blake Dawson Waldron


Interveners

G Griffith QC, Solicitor-General for the Commonwealth with
D J McGill SC, M A Perry and C J Horan intervening for the
Attorney-General of the Commonwealth, instructed by the Australian
Government Solicitor.


K Mason QC, Solicitor-General for the State of New South Wales
with V B Hughston, for the Attorney-General for NSW, instructed by
H K Roberts, Crown Solicitor for New South Wales.


T I Pauling QC, Solicitor-General for the Northern Territory with
R J Webb, for the Attorney-General for the Northern Territory, instructed by D M I Dreier, Solicitor for the Northern Territory.


B M Selway, QC, Solicitor-General for the State of South Australia
with E E David for the Attorneys-General for South Australia and
Victoria, instructed by the Crown Solicitor for South Australia and
R C Beazley, Victorian Government Solicitor.


C A Wheeler QC with K M Pettit on behalf of the Attorney-General for
Western Australia, instructed by P A Panegyres, Crown Solicitor for Western Australia.

Orders

1 The applicants have special leave to appeal from the whole of the judgment of the Full Court of the Federal Court of Australia given on 1 November 1995.
2 The appeal be allowed.
3 The orders of the Full Court of the Federal Court made 1 November 1995 be set aside.
4 In lieu of the said orders of the Full Court of the Federal Court, order:
(i) that the appeal from the decision of the President of the National Native Title Tribunal dated 14 February 1995 be allowed with costs;
(ii) that the decision of the President of the National Native Title Tribunal dated 14 February 1995 be set aside;
(iii) that the President direct the Registrar of the National Native Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants' Application for a Determination of Native Title No QN94/9 which was lodged on 24 June 1994.
5 Order 4(iii) be stayed until 4.00 pm on 13 February 1996.
6 Order the respondents to pay the applicants the costs of this appeal limited in the case of the first respondent to the costs incurred in or in connection with paragraph 2(aa) of the grounds of appeal in the amended draft notice of appeal.

Decisions

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON AND GUMMOW JJ. The North Ganalanja Aboriginal Corporation and the Bidanggu Aboriginal Corporation on behalf of the Waanyi People (the applicants) made an application under the Native Title Act 1993 (Cth) ("the Act") for a determination of native title to a parcel of land in the vicinity of the Lawn Hills-Lilydale Road in north west Queensland. The land the subject of the claim was a Camping and Water Reserve established by proclamation (1) known locally as "Ten-Mile Water Hole". On 24 June 1994, the application was given to the Registrar of the National Native Title Tribunal ("the NNTT") in accordance with s 61(2) of the Act (2).


2. On 30 June 1994, the solicitors for Century Zinc Limited and CRA Exploration Pty Ltd (the second respondents in this Court) wrote to the Registrar of the NNTT contending that native title had been extinguished over the subject land by reason of the grant of 2 pastoral leases. They furnished the Registrar with copies of various documents that were said to show dealings affecting the subject land on which the second respondents rested their submission that native title had been extinguished. The Registrar forwarded this material to the Carpentaria Land Council through which the applicants replied, submitting that native title had not been extinguished. The Registrar formed the opinion that prima facie the applicants' claim could not be made out. Accordingly, she referred the application to the President of the NNTT pursuant to s 63 of the Act. That section reads as follows:
"(1) If the requirements of section 62 are complied with in
relation to the application, the Registrar must accept it, 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.

(2) If the Registrar is of the opinion mentioned in
paragraph (1)(a) or (b), the Registrar must refer the application to a presidential member.
(3) If the presidential member is of the same opinion, the
presidential member must:
(a) advise the applicant in writing of the fact and give the
applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and
(b) if the applicant so satisfies the presidential member -
direct the Registrar to accept the application; and
(c) if the applicant does not so satisfy the presidential
member - direct the Registrar not to accept the application.
(4) If the presidential member is not of the same opinion as
the Registrar, the presidential member must direct the Registrar to accept the application."


3. When the President (French J) considered the application, he agreed with the Registrar's opinion that prima facie the claim could not be made out. He based his opinion "on evidence of the extinguishment of native title by the grant of pastoral leases over the land" (3). On 18 August 1994, the President advised the applicants that he had formed that opinion and that the applicants would be given a reasonable opportunity to show that a prima facie claim could be made out. Because of the importance of the legal and factual issues involved and their direct interest in the outcome, the State of Queensland, Century Zinc Ltd and CRA Exploration Pty Ltd were invited by the President to make submissions. Thereafter extensive submissions were made by each of the applicants and respondents. In a preliminary ruling on 15 September 1994, the President held, inter alia, that (4):
"6. The applicants are not obliged to lodge evidence in
support of the application to make out a prima facie case.
7. The registrar may, but is not obliged to, make inquiries
or receive information to determine whether it can be said at the outset that a claim could not be made out. These inquiries may include land tenure and land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective.
...

9. An applicant who is invited, under s 63(3), to show the
presidential member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself.
10. For the purpose of showing that a prima facie claim can
be made out it is not necessary for the applicant to show that it has evidence to negative extinguishment by legislative or executive act.
11. The presidential member may have regard to evidence of
extinguishing events in determining whether a prima facie claim can be made out.
12. The presidential member in deciding whether a prima
facie claim can be made out can form a concluded view on a question of law which, if decided one way would be fatal to the application.
...

14. The issues to be addressed by the applicants for the
purpose of showing that a prima facie claim can be made out will be:
(a) the existence or availability of evidence capable of
justifying a finding (extinguishment apart) that native title exists;
(b) the effect of the known land tenure history on the
continuance of native title."
After receiving further submissions from the applicants and respondents, the President ruled on 14 February 1995 that, being bound by the judgments of this Court in Mabo (No 2) (5), he was not satisfied that a prima facie claim could be made out.


4. In his reasons for that decision, the President said (6):
"In my opinion, the decision of the High Court in Mabo (No
2) establishes a principle that generally speaking the grant of a leasehold interest conferring rights of exclusive possession upon the lessee unqualified by any right of access in favour of Aboriginal people is inconsistent with the continuance of native title rights and interests. That general proposition is subject to the terms and conditions of particular leases which, for one reason or another, may negative the characterisation of the grant as intending extinguishment. Thus, the short term of a lease or wide rights of general public access may defeat a contention that it has extinguished native title. However where native title is extinguished the common law position seems to be that it cannot be revived by the common law."
He added that "the grant of exclusive possession associated with the leasehold interest unqualified by express or implied reservations for Aboriginal people is legally inconsistent with the continuation of any rights in the land other than those created by the Crown" (7).


5. The President applied these principles to the tenure history of the subject land which had been provided by the State of Queensland. The principal evidence of those facts had come from an officer of the Queensland Department of Lands. There was an entry in the Register of runs leased under the Pastoral Leases Act 1869 (Q) purporting to show that a lease of an area known as Bauhinia Vale West No 1 commencing on 1 July 1883 had been approved by Executive Minute on 27 September 1882. However, a search had failed to locate an instrument of lease corresponding to the entry in the Register. The President thought that no instrument of lease had issued but nevertheless found that there had been a grant of a lease of the land by the Executive Council without any reservation in favour of Aborigines ("the 1883 lease"). He further held that the 1883 lease had been extended and then surrendered and a new lease commenced as from 1 January 1905.


6. The President referred to a notification in the Queensland Government Gazette of 30 January 1904 (8) which classified the Bauhinia Vale West No 1 Run lease in Class IV under the Land Act 1902 (Q) resulting in its being grouped together with other pastoral runs under the designation of Lawn Hill Holding. On 14 November 1907, a lease under the Land Act 1902 (Q) of Lawn Hill Holding issued for a term of 42 years commencing on 1 July 1904 ("the 1904 lease"). It contained no reservation in favour of Aboriginal persons. The President further found that an area of land including the parcel that was known as the Ten Mile Water Hole had been surrendered prior to the issue of an instrument of lease in November 1907 which excluded the area surrendered from the area of the lease as from 1 April 1904. The Ten Mile Water Hole as a temporary reserve for camping and water purposes was gazetted on 8 June 1907. The area reserved was the land the subject of the application given to the Registrar.


7. In the President's view, the efficacy of the grant of a lease did not depend on the issue of any instrument of lease. He concluded that any subsisting native title had been extinguished by the 1883 lease and, if the 1883 lease had not extinguished native title, the later lease would have done so. Accordingly, pursuant to s 63(3)(c) of the Act, he directed the Registrar not to accept the application.


8. The applicants appealed to the Federal Court from the decision of the President. The jurisdiction of the Federal Court to entertain such an appeal is conferred by s 169, the relevant provisions of which read as follows:
"(2) If a person has given an application to the Registrar
under section 61, the person may appeal to the Court, on a question of fact or law, from a decision of a presidential member to not accept the application.
...

(5) The Court has jurisdiction to hear and determine appeals
instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.
(6) The Court must hear and determine the appeal and may
make such order as it thinks appropriate by reason of its decision.
(7) Without limiting subsection (6), the orders that may be
made by the Court on an appeal include:
(a) an order affirming or setting aside the decision or
determination of the Tribunal; or
(b) an order remitting the case to be heard and decided
again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."
The grounds of appeal to the Federal Court included a submission that the President had been in error -
"1. in deciding to invite the State of Queensland and
Century Zinc Limited and CRA Exploration Pty Ltd to make submissions to him concerning the acceptance of the application;
2. in deciding and proceeding on the basis that the
Registrar may receive and have regard to unsolicited information from third parties in determining whether it can be said at the outset that a claim could not be made out;
...

7. in proceeding on the basis that where there is a question
of law to be considered by the President acting under para 63(3)(a) of the Native Title Act, 1993 the President should resolve that question for the purpose of deciding whether a prima facie claim can be made out, and that it is not sufficient for that purpose to conclude that the question is arguable;
8. in proceeding to form a concluded view on certain
questions of law, in particular whether certain acts were sufficient in law to grant an interest in the subject land and whether such interests have extinguished native title;
..."



9. Although the present respondents had been informed of the applicants' application and had been invited by the President to make submissions in the proceeding which he conducted under s 63(3)(a), the present respondents were not formally "parties" to those proceedings. As Jenkinson J pointed out in his judgment in the Full Court of the Federal Court (9):
"The only parties to the application (ie, the application
for determination of native title) were the applicants. The other persons who were heard by Justice French were heard, and evidence adduced by them was received, because he chose to take that course in order that he might the more effectively perform the function conferred on him by s 63(3). Sections 66, 67 and 68 are so drawn that a person other than an applicant can become a party in relation to a native title determination application only after the application has been accepted under s 63. At times in his reasons for decision Justice French refers to 'the parties', as I would suppose for ease of reference. His Honour could not in my opinion make persons other than the applicants parties."
When the applicants appealed to the Federal Court, they filed a notice of appeal (10) and thereafter, by an order of the Federal Court (Drummond J) dated 29 March 1995, the respondents were joined as parties to the appeal (11).


10. The Full Court of the Federal Court by majority (Jenkinson and Hill JJ, Lee J dissenting) dismissed the appeal. The Judges of the Full Court formed a view of the tenure history of the subject land that differed from the findings made by the President. As to the 1883 lease, Jenkinson J thought that an instrument of lease under s 25 of the Pastoral Leases Act 1869 (Q) may have issued containing a reservation in favour of Aboriginal people and that that lease would not have extinguished native title. His Honour therefore held (12):
"Justice French's conclusion ought in my opinion to have
been that the grant of the lease and the lack of available evidence of the issue of the instrument did not cause him to fail of satisfaction that a prima facie claim can be made out." Hill J also rejected the President's finding (13):
"Having regard to these possible inferences and open facts,
it was, in my view, inappropriate for the learned president to have formed the view that the present was a case where the applicants could not make out a prima facie claim, having regard to the 1883 lease. In not doing so, in my view, his Honour went beyond the task required by s 63(3) and was in error."
Lee J held that (14):
"The president ... should have been satisfied that the
ability of the applicants to make out a 'prima facie' claim was unaffected by the 1883 lease."
However, a majority of the Full Court held that the 1904 lease extinguished native title to the subject land. Hill J, with whom Jenkinson J agreed on this point, found that, irrespective of the issue of the instrument of lease in 1907 (after the subject land had been surrendered), "the term of years granted took effect as a lease from 1 July 1904" (15). As the instrument of lease actually issued contained no reservations favourable to the applicants, his Honour held that the 1904 lease operated to extinguish native title in the subject land. Lee J formed a view of the effect of the 1904 lease different from that of the majority, holding it to be (16) "plainly arguable that by 6 June 1907 the whole of the area the subject of the application to the tribunal had been excised from the area in respect of which the pastoral tenant had an entitlement to receive a lease under the 1902 Act and that the vesting of the interest which occurred upon execution and issue of the instrument of lease on 14 November 1907 did not vest an interest capable of extinguishing native title over an area that was then a proclaimed reserve excised from the pastoral holding."
In any event, in his Honour's view it was (17)
"arguable that the interests created by the Crown as
pastoral leases - a course necessitated by the need to regulate the practice of settlers of 'squatting' on unalienated Crown land - were intended to be used, or enjoyed, in coexistence with indigenous title and that the granting of pastoral leases over such areas did not carry with it an intent by the Crown to extinguish native title".


11. A majority of the Full Court, upholding the President's finding that any native title had been extinguished prior to the making of the application, dismissed the appeal. The President's direction to the Registrar not to accept the application stood.


Special leave to appeal
12. The applicants sought special leave to appeal to this Court from the judgment of the Full Court. Three points were raised in the amended draft notice of appeal in support of the application for special leave. The first challenged the procedure adopted by the President leading to the direction he gave the Registrar to reject the application; the second sought a ruling that the 1904 lease was not effective to extinguish native title (18); and the third point, related to the second, asserted that the Parliament of Queensland had no power to authorise the grant of leases which would extinguish native title.


13. The second and third points would fall for determination if the applicants' argument on the first point failed. The applicants contended that the President wrongly formed "the same opinion" as the Registrar, namely, that prima facie the applicants' claim could not be made out. If the President ought not to have formed that opinion, s 63(4) of the Act required him to direct the Registrar to accept the application. No proceeding under s 63(3)(a) was required. Had a proceeding under s 63(3)(a) been required, the applicants contend that the President was bound to be satisfied that the applicants could make out a prima facie case and was required by s 63(3)(b) to direct the Registrar to accept the application. If it be right to hold that the President was required to direct the Registrar to accept the application, there was no properly constituted proceeding in which he could determine the second and third points. Similarly, there was no properly constituted proceeding in which the Full Court could determine those points or provide any binding precedent upon them and, it follows, none before this Court. If this Court were to proceed to determine the second and third points, it would be delivering an advisory opinion. That is beyond the constitutional empowerment of this Court in its appellate (19) as in its original (20) jurisdiction. However helpful it may be for the respondents and interveners to have the opinion of this Court upon the effect of pastoral leases on native title, the question can be answered judicially only in the determination of justiciable issues in properly constituted proceedings. The law is not judicially administered by judicial declarations of its content "divorced from any attempt to administer that law" (21).

14. There are situations in which special leave to appeal may be refused because, although the applicant has an arguable point, there is a second point which will cause the appeal to fail. The respondents and interveners urged a similar approach in this case. They submitted that this Court should determine the second point, arguing that, if the point is decided against the applicants, their claim must inevitably fail. The argument would be correct only if the applicants had been permitted to make a claim. And if they should have been permitted to make a claim, it would be an injustice to deprive them of the procedural rights flowing from its acceptance, including the right to have it mediated (22) and, perhaps, agreed under s 73 of the Act. Therefore it is necessary to abstain from considering the second and third points until the first point is decided.


15. Although the respondents and the interveners submitted that the Court should determine the second point, which is clearly a question of great public importance, that point can fall for determination only if the first point is decided against the applicants. The first point is itself of great public importance, as it relates to the procedure affecting claims for the determination of native title, their consideration by interested parties and the manner in which those claims are to be resolved. Thus special leave should be granted limited, in the first instance, to the first point.


The statutory scheme for dealing with applications
16. To construe the provisions of the Act governing the acceptance and rejection of claims for the determination of native title, some reference is desirable to the background of legal principle in which those provisions operate.


17. In Mabo (No 2) (23) it was held that native title survived the Crown's acquisition of sovereignty over the territories of Australia but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title (24). This declaration of the common law overruled earlier decisions of other courts that had held, or were widely understood to have held, that native title had been extinguished on and by the acquisition of sovereignty by the Crown. In Mabo (No 1) (25) it was held that the Racial Discrimination Act 1975 (Cth) protected the holders of native title against the extinguishment of their title, as those holders were clothed
"with the same immunity from legislative interference with
their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community."


18. It was inevitable that the recognition of native title by the common law and its protection by the Racial Discrimination Act would generate novel legal problems relating to the title to land claimed by Aborigines in accordance with traditional laws and customs. The Act addressed some of these problems. Although a claim to native title as defined in Mabo (No 2) (26) was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources) to determine. If native title were claimed, the preservation of the status quo while the claim was awaiting determination would pose a particular problem, not only for the claimants and the Crown but also for those who might be seeking access to the land for mining or other non-traditional purposes. The preamble to the Act indicates the legislative preference for resolving these problems by negotiation. It contains the following:
"In future, acts that affect native title should only be
able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
A special procedure needs to be available for the just and
proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character."


19. The remoteness of many Aboriginal communities and their lack of familiarity with the legal criteria for determination of native title posed practical difficulties for many people who might be entitled to claim native title. Moreover, the task of tracing the tenure history of any parcel of land during the previous 200 years was likely to be beyond the resources of many would-be claimants. There was a perceived commercial need for despatch in the settlement of claims for native title and in the administrative disposition of applications by miners and others seeking access to unalienated land. It was expected - and it seems that the expectation has been fulfilled - that many applications would be made throughout Australia for determination of native title. The Court was informed that 180 applications for determination of native title were received by the Tribunal between the coming into operation of the Act on 1 January 1994 and 30 January 1996.


20. These were some of the "mischiefs" which the Act was enacted to address (27). Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued. The Act provided a set of solutions for these problems as the following brief conspectus shows. The Act is divided into 15 Parts. Part 2 of the Act (ss 10-60) is headed "Native Title", Pt 3 (ss 61-79) "Applications", and Pt 4 (ss 80-94) "Determinations of the Federal Court".


21. Once a claim for the determination of native title is accepted, a procedure is set in train whereby the Registrar notifies the relevant State or Territory government, persons holding proprietary interests and other bodies and persons listed in s 66(2)(a), and also notifies the public (s 66(2)(b)). Those to whom notice is given under s 66(2)(a) and other persons whose interests may be affected by the determination may become parties to the application (28). If an application which has been accepted under s 63 is unopposed, then the NNTT may make a determination pursuant to s 70(1). This states:
"In the case of an application accepted under section 63
that is unopposed, the Tribunal may make a determination in, or consistent with, the terms sought by the applicant if:
(a) the Tribunal is satisfied that the applicant has made
out a prima facie case for a determination in those terms; and
(b) the Tribunal considers the determination to be just and
equitable in all the circumstances."
If the parties to the application agree on the terms of a determination of the application consistent with the powers of the NNTT and the NNTT is satisfied that such a determination would be "appropriate in the circumstances", the NNTT must make a determination in accordance with those terms (29). Failing agreement, the matter goes to mediation and thence either to agreement by the parties and determination in accordance therewith (30) or to the Federal Court for judicial determination (31). The NNTT is obliged to hold an inquiry before it makes a determination of native title (32). Section 148 states:
"The Tribunal may dismiss an application, at any stage of
the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application."


22. It will be noted that the phrase "prima facie" appears not only in s 63(1)(b) and in s 63(3)(a), but also in s 70 and s 148. In s 63 it appears respectively in the expressions "prima facie the claim cannot be made out" and "a prima facie claim". In the other provisions, which relevantly speak to the situation after acceptance of the claim, the expression is "a prima facie case". The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase "prima facie" is:
"At first sight; on the face of it; as appears at first
sight without investigation" (33).
In s 63, the phrase relates to the interest or title to which an applicant may be entitled on the face of information contained in and the material accompanying the application.


23. Sub-division B of Div 3 of Pt 2 of the Act denies the Governments of the Commonwealth, States and Territories power (34) to confer, inter alia, mining rights (35) in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant (36) and a procedure is followed through which ordinarily (37) requires the Government to negotiate with the claimants and the miner. The negotiation is assisted, if desired, by mediation by the NNTT or other arbitral body (38). The procedure may terminate either in an agreement (39) or in a determination by the NNTT or other arbitral body that the Government may or may not confer the mining rights in question (or some other interest to which Sub-div B applies) or may do so subject to specified conditions (40). Time limits for applying for and for making of determinations of this kind are prescribed (41). Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.


24. It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.


25. A claim of native title requires an examination of facts that fall broadly into two categories: the continuity of the connection of the claimants and their ancestors with the land in which native title is claimed and the "tenure history" of that land so far as it appears from Crown grant, Crown licence or Crown use. In recognition of the fact that some applicants for the determination of native title may be unfamiliar with the requirements of the Act and may not have the resources to conduct searches of historical or other documents that may be required to support the application, s 78(1) confers on the Registrar the function of rendering "such assistance as the Registrar considers reasonable to help people prepare applications and accompanying material".


26. If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims.


27. In the present case, that inversion occurred because of a mistaken appreciation of the effect and operation of the Act in three respects: (i) the ex parte character of the procedure for making an application for determination of native title and the limitation the ex parte procedure imposes on the material to be considered; (ii) the administrative nature of the opinion to be formed by the Registrar and the presidential member under s 63; and (iii) the significance of legal uncertainty to the administrative decisions whether a prima facie claim could be made out.


(i) Ex parte character of the application
28. Sections 61 to 64 of the Act govern the functions of the only persons concerned with the making and the initial acceptance or rejection of an application for determination of native title. Section 61(1) authorises, amongst others, persons "claiming to hold the native title" to make a native title determination application (42). Section 61(2) requires an application to "be in the prescribed form and be given to the Registrar" and to "contain such information in relation to the matters sought to be determined as is prescribed". That information is prescribed by reg 5 of the National Native Title Tribunal Regulations. The prescribed information relevant for present purposes is set out in par A8 of Form 1 in Sched 1 to the Regulations:
"Details of all searches conducted with public bodies and
authorities, and of all official title registers searched, and the results of those searches, together with:
(a) a copy of any documents that record an existing or
expired interest granted over any part of the area covered by the application; and
(b) a copy of the documents of title issued as evidence of
the existing or expired interest."


29. Section 62(2) requires an application for a native title determination by a person claiming to hold native title to "be accompanied by any prescribed documents". The categories of prescribed accompanying documents are specified by reg 6(1) of the Regulations. The prescribed accompanying documents are "the documents specified in Form 1". For present purposes, the relevant documents are those specified in sub-pars (a) and (b) of par A8 of Form 1. If a presidential member, on reference by the Registrar, considers that the requirements of s 62 are not complied with, s 64 of the Act requires that the applicant be given written notice of that fact and be given a reasonable opportunity to satisfy the presidential member that the requirements are complied with. No such notice was given to the applicants in this case.


30. Apart from the requirement of accompanying documents contained in s 62(2), s 62(1) prescribes certain other material that must be contained in or accompany an application for determination of native title by a person or persons claiming to hold native title. The relevant part of that sub-section reads as follows:
"62 (1) A native title determination application by a
person or persons claiming to hold the native title in relation to an area must:
(a) be accompanied by an affidavit sworn by the applicant
that the applicant:
(i) believes that native title has not been extinguished in
relation to any part of the area; and
(ii) believes that none of the area is covered by an entry
in the National Native Title Register; and
(iii) believes that all of the statements made in the
application are true".
An affidavit complying with this requirement accompanied the application.


31. If the Registrar, after considering the information contained in and the documents accompanying the application, forms the opinion that "prima facie the claim cannot be made out" (43) and refers the application to a presidential member (44), the presidential member must form an opinion on the same question (45) on the same material and documents. If the presidential member's opinion is adverse to the application, the applicant must be given a reasonable opportunity (46) - perhaps by supplementing the material or the documents - to satisfy the presidential member that "a prima facie claim can be made out".


32. The Act makes no provision for any person other than the applicant to have any right to be heard or to furnish information or documents at the stages of the application covered by s 63(3).


33. There is no other party to the application prior to the acceptance of an application for native title determination, other than the applicant. It is only after acceptance that persons other than the applicant can become parties pursuant to s 66. It is only at that stage that the procedure for dealing with the application becomes a multi-party proceeding. Section 66 reads as follows:
"(1) If an application is accepted under section 63, the
Registrar must:
(a) give notice of the application to all persons whose
interests may be affected by a determination in relation to the application; and
(b) if the application is a native title determination
application by a person or persons claiming to hold the native title - record details of the application in the Register of Native Title Claims.
(2) The Registrar is taken to have given notice to all
persons whose interests may be affected by a determination in relation to an application if the Registrar:
(a) gives notice containing details of the application to:
(i) the registered native title claimant (if any) in
relation to the area covered by the application; and
(ii) the Commonwealth Minister; and
(iii) if any of the area covered by the application is
within the jurisdictional limits of a State or Territory - the State Minister or Territory Minister for the State or Territory; and
(iv) any registered native title body corporate in relation
to any of the area covered by the application; and
(v) any person who holds a proprietary interest in any of
the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(vi) any representative Aboriginal/Torres Strait Islander
body for any of the area covered by the application; and
(b) notifies the public in the determined way of the
application.
(3) A notice under subsection (2) must also state that:
(a) ...
(b) in any other case (including an application for
determination of native title) a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given.
(4) ..."



34. Parties to an application are defined by s 68. The parties alone are those who are empowered to reach an agreement to which the NNTT may give effect by a determination under s 71 or s 73; the parties or their representatives alone are those who are entitled to participate in a mediation conference under s 72; and it is the inability of the Tribunal to make a determination consequent on a failure by the parties alone to agree on a resolution of the matter that requires the application to be lodged with the Federal Court for decision under s 74. In the Federal Court, those who were parties under s 68 become parties to the Court proceedings (47) with a right of appearance (48). The structure of the Act shows that the proceedings prior to the acceptance of the application by the Registrar are ex parte. The functions of the Registrar and of the presidential member prior to the giving of notices under s 66 are concerned entirely with the compliance of the application with the requirements of s 62 and the questions whether the application is frivolous or vexatious or whether prima facie a claim can be made out.

35. There is some attraction in the proposition that, in deciding whether prima facie a claim can be made out, the Registrar or a presidential member to whom the application is referred by the Registrar under s 63(3) can receive information or material from third persons which is relevant to that decision. After all, any person is free to make enquiry of another without requiring statutory authority to do so (49) and s 65 confers on the Registrar (with the approval of the President) and on a presidential member the powers conferred on the Tribunal by ss 155 to 159 of the Act, including the power to summon witnesses to give evidence or to produce documents. There is no express provision of the Act that confines the power or the freedom of the Registrar or a presidential member at the stage when the application is first referred to him by the Registrar (and it is to that stage that the following discussion relates) to receive information or material from third persons. However, the notion of a good prima facie claim which, in effect, is the concern of s 63(1)(b) and, if it is still in issue, of s 63(3)(a) of the Act, is satisfied if the claimant can point to material which, if accepted, will result in the claim's success. That and the structure of the Act tell against the proposition that an opinion "that prima facie the claim cannot be made out" can be formed on contentious information furnished by third persons. Moreover, s 63(3)(a), which operates when the presidential member is of the same opinion as the Registrar, speaks only of advising the applicant of the fact and giving the applicant "a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out".


36. If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubts on the prima facie ability of an applicant to make out a claim, the Registrar or the presidential member would be bound to give the applicant an opportunity to answer and then, perhaps, to allow the third person and the applicant further opportunities to reply to each other before the Registrar or the presidential member formed an opinion on the question whether prima facie a claim could be made out. The proceeding which was intended to lead to the formation of a preliminary opinion would become - as happened in the present case - a contest between parties with opposing interests and the controversy would be settled not by agreement between "parties" or by decision of the Federal Court as the Act intends but by a presidential member acting administratively. That would be contrary to the method prescribed by the Act for determination of opposed claims - that is, determination by the Federal Court. Third persons seeking to defeat an application would be able to procure an administrative determination of the application before those persons became entitled to be parties to the application.


37. As it would not be possible to restrict the reception of relevant information and material, the Registrar or the presidential member would be forming an opinion whether on all of that information or material (including the information and material received from the third person) the applicants' claim is made out or would be made out if the evidence before the Federal Court corresponds with the evidence before the Registrar or presidential member. That is not the question for determination by the Registrar or by the presidential member to whom the application is referred. The issue whether a claim is made out is an issue reserved by s 74 of the Act for determination by the Federal Court on the evidence admitted in that Court. The Registrar or the presidential member is required to form an opinion as to whether prima facie the claim can be made out by the applicant, not whether a third person would be able to destroy any case made by an applicant.


38. The view which limits the information and material for consideration to what is contained in or what accompanies an application does not place the Registrar or the presidential member at the mercy of an applicant. That construction of the Act does not entail the consequence that an applicant is free simply to omit information or material that is likely to destroy a claim for native title. The Act confers powers designed to ensure that information and material on which the opinion is to be formed are not omitted by an applicant negligently or deliberately. If the information or material first furnished in or with an application is insufficient to satisfy s 62, the application may not be acceptedm (50). No doubt an applicant's knowledge of relevant information and material may be defective (51), while third persons may possess and be willing to furnish information or material relevant to and perhaps destructive of an applicant's claim of native title. But the preliminary consideration of the application under s 63 is not, in our opinion, the stage at which to consider what is offered by third persons.


39. If the Registrar or the presidential member were called on to form an opinion as to whether an application is frivolous or vexatious, extrinsic evidence might be relevant to the question for consideration. But the relevant material would consist in such a case of some conduct on the part of the applicant or of some disqualifying factor personal to the applicant which would not be required to appear on the face of the application or in the material accompanying the application. But the present case is not of that kind.


40. In the present case, the Registrar and the President each affirmed the holding of an opinion that prima facie the applicants' claim could not be made out, but they formed their opinions in reliance upon information and material obtained from the present respondents or their respective solicitors which, in their opinion, showed that native title had been extinguished. That information and material were irrelevant to the opinion which they respectively had to form. By receiving and taking account of information and material from third persons, they failed to address the question which s 63 posed for their consideration. That question was whether, on the information and material furnished by the applicants in and with the application, prima facie their claim could be made out.


(ii) The administrative nature of the opinion under s 63
41. The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s 63, yet they each formed an opinion adverse to the claim in reliance on the effect of the tenure history of the subject land. That involved the making of findings as to the tenure history and the application of an apprehended legal rule as to the effect of a pastoral lease on native title.


42. It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised (52). But the Act reserves to the Federal Court the jurisdiction, exclusive of the jurisdiction of all other courts except the High Court, to hear and determine opposed applications (53). For that purpose, the Federal Court must make findings on issues of contested fact and, when the relevant legal rules are contested, declare the law on which the extinguishment of native title depends. If a presidential member directs the Registrar in purported exercise of the s 63(3) power not to accept an application, he deprives the applicant of the opportunity of having the claim judicially determined and, by his direction, effectively determines the application adversely to the applicant. Having regard to the jurisdiction conferred on the Federal Court by s 74, it is difficult to attribute to s 63 a construction which would authorise the administrative rejection of an application where, on the information in the application and the material accompanying it, the applicant's claim is fairly arguable.


43. To give a direction not to accept such an application upon findings of fact made after an adversarial contest on arguable questions of fact or law between persons who would be entitled to be parties if those questions were submitted for determination by the Federal Court and by reference to a legal rule declared by a presidential member after hearing contrary submissions that are fairly arguable is practically tantamount to a proleptic exercise of the jurisdiction of the Federal Court (54). If the direction not to accept such an application is given because information or material obtained from a third person shows that the claim will fail in the event of a trial in the Federal Court or because a fairly arguable question of law is determined by the presidential member adversely to the applicant, the presidential member's conclusion will be fatal to the acceptance of any future application by the applicant for the determination of native title to the same land. When that direction is given in consequence of a conclusion fatal to the claim which the presidential member has reached by steps that correspond with the steps that the Federal Court would take to determine such an application, the presidential member is performing a function that is reserved to the Federal Court. The purely administrative function to be performed by the presidential member under s 63(3) is misconceived. If a direction not to accept the application is given under s 63(3)(c) because of findings made after an adversarial hearing or because of a ruling given on contested propositions of law that are fairly arguable, the direction is invalid. It is not saved from invalidity by the theoretical right of the applicant to make another application or by the ineffectiveness of the presidential member's conclusion to create an issue estoppel.


44. In the present case, the President conducted what amounted to a trial, found the facts and ruled on the law. In substance, he did not conclude that the applicants could not make out a prima facie claim; his conclusion was that, whatever case the applicants might make, they would fail by reason of the granting of a pastoral lease, whether the 1883 lease or the later lease. Without being invested with relevant judicial power, the President effectively determined the application which otherwise might have been resolved by agreement between "parties" to the application or by determination by the Federal Court.


(iii) Uncertainty in legal rules
45. The President's approach to the consideration of questions of law that are not settled was clearly stated (55):
"A question of law may arise which, if decided one way,
would be fatal to the application in a court of law. In my opinion, where there is such a question of law the presidential member should form a view on it for the purpose of deciding whether a prima facie claim can be made out. It is not sufficient to conclude that the question is arguable and that on that basis a prima facie claim exists. If there is an issue of law which, in the view of the presidential member, is fatal to the application, that should be resolved at the threshold. It is to be borne in mind that the presidential members, although exercising administrative functions, are judges or former judges who will be experienced in deciding legal as well as factual questions. If a determination is made not to accept the application, whether based on matters of fact or law or both, then there is a statutory appeal to the Federal Court under s 169(2) of the Act."


46. This approach accords with judicial practice in ruling whether, in a criminal case, the prosecution has established a prima facie case (56). In judicial proceedings the judge has a duty to declare and apply the law, even if the law were unsettled before the judge declares it. Indeed, it is only by an application of the law as the judge declares it that it is possible to decide whether the evidence establishes a prima facie case.


47. In some contexts, the conferring of administrative power could require the repository of the power to decide a doubtful or contested question of law and to act accordingly. But in the context of the Act which is regulating the procedure for determining novel issues of native title, it would be surprising if a question of law that is not settled but is critical to the making of a valid claim to native title could be decided administratively so as to preclude an applicant from having the question decided by the Federal Court in proceedings which would be binding on all interested parties. If a presidential member were empowered to determine such a question of law against an applicant, the statutory procedure for the judicial determination of claims for native title in default of resolution by agreement would be subverted.


48. True it is that a presidential member's error of law affecting the exercise of power under s 63(3) can be corrected on appeal under s 169(2), but such an appeal is not a judicial proceeding inter partes nor does it finally determine legal rights. It is a proceeding designed to ensure that applications that are not self-evidently without merit are resolved by agreement or determined by the Federal Court so as to bind the "parties" interested. An appeal under s 169(2) is not itself the occasion for final determination of questions of law that are fairly arguable. In other words, in a case where a presidential member's direction that an application be not accepted is taken on appeal to the Federal Court under s 169(2), the question for the Court is not whether the presidential member was right in his conclusion about a contested point of law that is not settled but whether the point of law was fairly arguable.


49. It is no doubt convenient in one sense to have a speedy settlement of contested and critical questions of law but such questions can be effectively settled only by judicial declaration in the determination of issues joined in litigation. The structure of the Act reveals clearly the intention of the Parliament to divide applications into two broad categories: opposed and unopposed. Opposed applications go to the Federal Court for judicial determination binding on the parties; unopposed applications are determined finally by the NNTT. In an unopposed application, the NNTT must make an inquiry and then determine the application in one of three ways. It may make a determination consistent with the application if satisfied that the applicant has made out a prima facie case and that a determination is just and equitable in all the circumstances (57). Or, if the parties have reached agreement, whether or not after a mediation conference, the NNTT must make a determination in accordance with the agreement if a determination is within its powers and would be appropriate in the circumstances (58). Or, if the NNTT is satisfied that the applicant is unable to make out a prima facie case in relation to the application, it may dismiss the application (59). The preliminary screening procedure prescribed by s 63(3) cannot be interpreted so as to preclude consideration of applications which depend on questions of law that, being unsettled, are fairly arguable.


The result
50. The only information and material relevant to the extinguishment of native title that the applicants furnished when the application was given to the Registrar consisted of the information contained in par A8 of the application, copies of the file "held in Department of Lands, Cloncurry" ("the Cloncurry file"), and an affidavit swearing to the deponent's belief that native title "has not been extinguished". Paragraph A8 of the application read as follows:
"A8. Details of searches conducted

The applicants' representative has caused the following
searches to be conducted concerning the status of the land within the area covered by the application:
1. The relevant reserve file in the Department of Lands in
Cloncurry.
2. Lawn Hill Pastoral Lease and sublease.

3. Minerals and Energy Resource Location and Information
Network search of application for Mining Lease 90045.
Copies of documents obtained during the searches conducted,
that comprise documents of title or that record existing or expired interests, will be provided to the Registrar at the time of lodgement of this application. A list of those documents is set out in attachment 4."


51. The applicants attached a number of documents to their application including those which they listed in "Attachment 4". The first category of Attachment 4 documents consisted of the Cloncurry file. No further information nor any further documents was or were sought from the applicants by the Registrar under s 64. If no order under s 64 is sought, the Registrar must be taken not to consider "that the requirements of section 62 are not complied with".


52. No doubt was cast on the sufficiency of the material in the application to establish prima facie the applicants' claim to native title to the subject land except in so far as their title may have been extinguished. The information relevant to that issue consisted in the deposition in the affidavit accompanying the application that the deponent believed that native title had not been extinguished in relation to any part of the area covered by the application together with the copies of the documents in the Cloncurry file.


53. The Cloncurry file included an undated lithograph which showed an area marked "Pro Reserve" within the boundaries of an area described "Bauhinia Vale West No. 1". It also included a copy of file notes headed "Burketown Land Agent's District" bearing a date stamp of "4 Sep 06" from the Surveyor General's Office though there were entries on it bearing a later date. That page contains sundry notations among which are the following in what we take to be their chronological order:
"Mines Dept - requesting proclamation of Water and Camping
Reserve at the Ten Mile Waterhole near Lawn Hill."
4 September 1906: "The area under reference forms part of
Lawn Hill Consolidated Holding, and is within Burketown Mineral Field.
Litho herewith to illustrate."

8 September 1906: "For particulars Lawn Hill Consolidated"

11 September 1906: "Act '02 Class IV.
Area 1932 1/2 sq. miles.
Present rent pounds 1021.12.6.
Date of lease 1st July 1904.
Report and Valuation Act '02 received from Cmmr A Warok."

12 September 1906: "Inform lessee of request and ask for
Surrender.
Forward surrender for execution also plans."

15 September 1906: "For plans and description of area to
be surrendered"
19 September 1906: "Description herewith."

26 September 1906: "Surrender herewith"

2 October 1906: "ToBk of NSW
CAIO
2.10.06."

It is possible to infer from this information that the Ten Mile Waterhole which the Mines Department requested to be proclaimed as a Water and Camping Reserve had been part of Lawn Hill Consolidated Holding and was surrendered on or before 26 September 1906. No 1883 lease is mentioned and the steps, if any, which had been taken prior to the surrender to put a Crown lessee into possession of "Lawn Hill Consolidated Holding" do not appear. Nor do the terms of any lease appear.


54. The information conveyed by these documents is quite insufficient to establish either that a lease of the subject land had in fact been granted pursuant to the Land Act 1902 (Q) or, if a lease had been granted, whether the subject land had been included in the area leased or whether there had been any reservation from the lease in favour of the traditional aboriginal owners of the subject land. Nor are the notations sufficient in themselves to establish the tenure history of the subject land up to the time of the surrender of the Ten Mile Waterhole. As the subject land had concededly been excluded from any lease after that time, the later tenure history was irrelevant. In those circumstances, the tenure history was not sufficient to demonstrate prima facie that the applicants' claim could not be made out. Nor could the President's approach to the question whether a lease under the Land Act 1902 (Q) - the only lease relied on by the Full Court for upholding the President's direction - be supported. The President noted that (60)

"The extent to which the judgments in Mabo (No.2) have left
open the question of the impact of leasehold interests on native title was recognised in a discussion paper published by the Commonwealth Government in June 1993".
He cited, apparently as reflecting his own opinion, a paragraph from the discussion paper61:
"The differing views of the justices on the effect of the
sardine factory lease (in Mabo (No 2)) illustrate how difficult it is to predict the court's approach to future claims to leased land, as notions of what is and is not incompatible with continuing native title are likely to differ. However, even if native title is not extinguished by leasehold or other grants, where such grants are validly made the native title would be restricted or limited by the grant."
If the President was of this opinion, the question whether the grant of a pastoral lease had extinguished the native title claimed by the applicants must surely have been regarded as fairly arguable. It is not without significance that the respondents and the interveners all supported the grant of special leave to appeal to consider this question in order to settle a question of law that was said to be uncertain.


55. However, the President held that the judgments in Mabo (No 2) bound him to conclude that any subsisting native title was extinguished by the 1883 lease and would also have been extinguished by the later lease. The effect of the events that were said to establish the grant of the 1883 lease and the creation of the later lease and the effect of either lease on any surviving native title were all questions of law that were fairly arguable. Yet they were determined against the applicants.


56. The Federal Court, on appeal by the applicants, itself made findings of fact different from those made by the President and by majority held that, on the findings so made, native title to the subject land had been extinguished. Only Lee J in dissent held that the facts given in evidence before the President raised questions of law that were fairly arguable. Those questions related, inter alia, to the nature of the interest granted by the Crown under the Land Act 1902 and the effect of that grant on native title. Even if the opinions of the President and of the majority of the Full Court on these questions turn out to be correct, it is impossible to deny that Lee J is correct in describing them as "plainly arguable". As experience in the working out of the relevant principles is gained, certainty will reduce the points that are fairly arguable.


57. The Registrar and the President misdirected themselves in the opinion they had to form, they had regard to information and material to which they were not entitled to have regard in forming that opinion and they adopted a procedure that was inappropriate to the formation of the relevant opinion. It follows that the President's direction not to accept the applicants' application must be set aside. The Full Court of the Federal Court was in error in adopting the evidence gathered by the President as the basis of their findings of fact and in determining the contested points of law instead of holding that the points were fairly arguable. The appeal from the Federal Court must therefore be allowed.


58. Once it appears that the President ought not to have formed the same opinion as the Registrar when the Registrar referred the application to him under s 63(2), the direction that ought to have been given is that prescribed by s 63(4), namely, that the Registrar accept the application. At the conclusion of argument in this case, this Court set aside the order of the Federal Court and in lieu thereof ordered that -
"the President direct the Registrar of the National Native
Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants' Application for a Determination of Native Title No QN 94/9 which was lodged on 24 June 1994." It may be that the direction to accept should be given pursuant to sub-s (4) rather than sub-s (3)(b) of s 63 of the Act, but the source of the obligation to give the direction is immaterial for present purposes. The procedure adopted by the President for the purposes of sub-s (3)(a) was in any event inappropriate for the determination of the question whether he ought to have been satisfied that a prima facie case could have been made out and the factors which invalidated the formation of the earlier opinion under s 63(3) invalidate the direction given by the President under s 63(3)(b).


59. At the time of pronouncing the judgment and order of the Court, it was announced that reasons would follow in due course. These are our reasons for that judgment and order.

McHUGH J. These reasons arise out of an application for special leave to appeal against an order of the Full Court of the Federal Court of Australia. By its order, the Full Court upheld a decision of the President of the National Native Title Tribunal ("the Tribunal") directing the Registrar of that Tribunal not to accept an application for a determination of native title filed by the applicants ("the Waanyi People"). The application concerned an area of about 247 hectares of land in north-west Queensland. The Waanyi People contended that the Registrar should have accepted their application because they had established a prima facie claim of native title in respect of the land. At the conclusion of the argument in this Court, we granted special leave to appeal and allowed the appeal with reasons to be published later.


The legislation
2. Section 61 of the Native Title Act 1993 (Cth) ("the Act") authorises a person or persons "claiming to hold native title" to make an application for the determination of that native title. Section 62 relevantly provides:
"(1) A native title determination application by a person or
persons claiming to hold the native title in relation to an area must:
(a) be accompanied by an affidavit sworn by the applicant
that the applicant:
(i) believes that native title has not been extinguished in
relation to any part of the area; and
(ii) believes that none of the area is covered by an entry
in the National Native Title Register; and
(iii) believes that all of the statements made in the
application are true; and
(b) contain all information known to the applicant about
interests in relation to any of the land or waters concerned that are held by persons other than as native title holders; and
(c) contain a description of the area over which the native
title is claimed; and
(d) state the name and address of the person who is to be
taken to be the claimant."
If an application complies with the requirements of s 62, the Registrar must accept it 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" (62). If the Registrar forms one of the opinions in pars (a) or (b), he or she must refer the application to a presidential member (63). Section 63(3) and (4) then provide:
"(3) If the presidential member is of the same opinion, the
presidential member must:
(a) advise the applicant in writing of the fact and give the
applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and
(b) if the applicant so satisfies the presidential member -
direct the Registrar to accept the application; and
(c) if the applicant does not so satisfy the presidential
member - direct the Registrar not to accept the application.
(4) If the presidential member is not of the same opinion as
the Registrar, the presidential member must direct the Registrar to accept the application."


3. If the presidential member decides not to accept the application, the person who has given the application to the Registrar under s 61 may appeal to the Federal Court "on a question of fact or law" (64).


4. Acceptance of the application confers important rights on the applicant. Notice of the details of the application must be given to, among others, any Commonwealth, State or Territorial Minister concerned with an area covered by the application. Notice must also be given to any person holding a registered proprietary interest in any of the area covered by the application (65). Any person so notified can then become a party "in relation to the application" if that person applies to be a party, as can any other person whose "interests may be affected by a determination" (66).


5. If an application is unopposed, the Tribunal may make a determination in or consistent with the terms sought by the applicant. Two conditions must be satisfied for such a determination to be made. First, the Tribunal must be satisfied that the applicant "has made out a prima facie case for a determination in those terms" (67). Second, the Tribunal must consider "the determination to be just and equitable in all the circumstances" (68). If the parties to an application reach agreement, the Tribunal must make a determination in accordance with, or consistent with, the terms of the agreement if it is satisfied that the terms of the agreement are "within the powers of the Tribunal and would be appropriate in the circumstances" (69). If the parties cannot agree, the President of the Tribunal must direct the holding of a conference between the parties "to help in resolving the matter" (70). If the parties then fail to agree, "the Registrar must lodge the application to the Federal Court for decision" (71).


6. Section 139 of the Act requires the Tribunal to hold an inquiry into, inter alia, any "unopposed application" which by definition means those applications unopposed under s 70 or those applications where agreement is reached under ss 71 or 73 of the Act. At the inquiry, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case, to inspect documents and to make submissions in relation to those documents (72). Any question of law arising in the inquiry must be decided in accordance with the opinion of the presiding member (73). Power is given to the Tribunal to refer questions of law to the Federal Court (74), to receive into evidence a transcript of evidence from other proceedings, to draw conclusions of fact from that transcript and to adopt the report or findings of specified bodies (75). The Tribunal may dismiss an application at any stage of the inquiry "if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application" (76). Similarly, the Tribunal may dismiss an application at any stage if it "is satisfied that the application is frivolous or vexatious" (77). The Tribunal is also given power to hold hearings (78) and to take evidence on oath or affirmation (79). Section 160 provides:
"(1) After holding an inquiry in relation to an application
made under section 61, the Tribunal must make a determination about the matters covered by the inquiry.
(2) The Tribunal must state in the determination any
findings of fact upon which it is based."


7. As soon as practicable after a determination under s 160 is made, the Registrar must lodge the determination in a Registry of the Federal Court (80). Upon registration in that Court, the Act purports to make the determination have the same effect as if it were an order made by the Federal Court (81).


8. Upon acceptance of a claim, a government of the Commonwealth, a State or a Territory can only grant or vary mining rights, or compulsorily acquire native title rights for the benefit of non- government parties, in respect of land covered by the accepted application if certain procedures are followed (82). Those procedures require the government to notify any registered native title claimant of such proposed action (83). The government is also required to negotiate in good faith with the native title claimant and the parties who are to be granted rights over the land, with such negotiations to be carried out "with a view to obtaining the agreement of native title parties" to the granting of the rights (84). Relevant matters that may be negotiated include payments to native title parties calculated by reference to profits made, income derived or things produced by the grantee party by using the land (85). If any of the negotiating parties request "the arbitral body" (86) to do so, it "must mediate among the parties to assist in obtaining their agreement" (87). The object of these procedures is to produce an agreement between the parties (88) or a determination by the arbitral body that the proposed right over, or in respect of, the land should or should not be granted (89).


The factual background
9. Some days after the Waanyi People filed their application, solicitors, acting for the second respondents, wrote to the Registrar expressing their concern that the application for the determination of native title might be accepted. The solicitors asserted that the relevant land had been the subject of two pastoral leases issued under the Land Act 1902 (Q). They contended that the issue of these leases extinguished any native title that had previously existed in respect of the land. Subsequently, the solicitors forwarded to the Registrar a history of dealings affecting the land together with copies of materials obtained from the Queensland State archives.


10. The history of the dealings showed that, prior to 27 June 1904, the Bank of New South Wales ("the Bank") had been the lessee of land that included the land the subject of the application. The Bank held the land under a pastoral lease whose term commenced on 1 July 1883 and expired on 30 June 1904 ("the 1883 lease"). On 7 July 1904, the Land Court of Queensland recommended an extension of the lease for a period of five years commencing on 1 July 1904. On 28 July 1904, the Bank gave a Notice of Election under the Land Act, s 8 of which provided:
"(1) At any time within six months after such publication of
the classification of a holding the lessee, upon giving notice to the Minister that he elects to take advantage of this Part of this Act, and upon surrendering the existing pastoral lease of such holding, shall be entitled to receive a lease from the Crown under this Part of this Act of the lands comprised in such holding.
(2) Every notice of election shall be in the form in the
Second Schedule to this Act or to the like effect, and when received by the Minister shall be irrevocable, and shall bind both the lessee and his successors in interest and the Crown.
Every such notice, or an abstract thereof, shall be
published in the Gazette.
...

(4) The term of every such lease shall commence on the first
day of January or the first day of July nearest to the date of the publication of such notice or abstract thereof in the Gazette, and the surrender of the existing pastoral lease shall take effect as from the commencement of the term of the new lease.
(5) In the case of two or more contiguous holdings held by
the same lessee, the whole of the lands comprised therein may, if the Minister thinks fit, and the lessee agrees thereto, be included in one and the same lease, and in that case shall thereafter, for all the purposes of this Part of this Act, be deemed to be and shall be dealt with as one holding."
The Bank's Notice of Election was published in the Government Gazette (Q) on 13 August 1904.


11. On 18 October 1905, the Under Secretary for Lands, acting under s 8(5), wrote to the Bank asking if it wished to consolidate into one lease 40 runs then leased to it. The Bank agreed to do so, but no lease was issued until 14 November 1907. The lease ("the 1907 lease") was for a term of 42 years commencing on 1 July 1904. The 247 hectares of land which is the subject of the Waanyi People's application was part of the land held under this lease. However on 22 March 1907, the Bank had surrendered to the Crown an area of 278 square miles that included those 247 hectares. On 8 June 1907, a proclamation published in the Government Gazette (Q) reserved an area of 610 acres of the land surrendered for camping and water purposes. Despite the surrender and the proclamation, the 1907 lease contained no reservation in favour of Aboriginal persons.


12. Upon receiving the materials from the second respondents' solicitors, the Registrar formed the opinion that prima face the claim of the Waanyi People could not be made out. She referred the application to the President. He formed the same opinion as the Registrar. As a result, the President wrote to the applicants through the Carpentaria Land Council advising them that in his opinion no prima facie claim had been made out because the native title to the land had been extinguished by the grant of a pastoral lease over the land in 1883. He informed them that the Waanyi People would be given a reasonable opportunity to show that a prima facie claim could be made out. The President also invited the first and second respondents to make submissions on the issue. After hearing the Waanyi People and the first and second respondents' submissions, the President held that either the 1883 lease or the 1907 lease had extinguished the Waanyi People's title in respect of the land. The Waanyi People appealed against the decision of the Federal Court pursuant to s 169(2) of the Act. But the Full Court of the Federal Court (Jenkinson, Hill JJ, Lee J dissenting) upheld the ruling of the President.


The contentions
13. The Waanyi People contended in this Court that the process adopted by the President was in error and that neither the Registrar nor the President was entitled to have regard to material other than that complying with s 62 of the Act in determining whether there was a prima facie claim of native title. They argued that the President had erred in holding that "(t)he Presidential Member in deciding whether a prima facie claim can be made out can form a concluded view on a question of law which, if decided one way would be fatal to the application." Because this Court was of the opinion that the President had erred in finding that there was no prima facie claim of native title, the Court did not hear argument as to whether the President had also erred in finding that, as a matter of law and fact, native title over the land had been extinguished.


The relevant materials
14. In my opinion, neither the Registrar nor the Presidential member is confined to the materials referred to in s 62 of the Act in determining whether a prima facie claim of native title has been made out. The strongest argument for this conclusion is that the Act does not say that the Tribunal must have regard to the s 62 materials and to no other materials. This view is strengthened by the fact that unless something in the application discloses that the application is frivolous or vexatious or a prima facie claim is not made out, the formation of the relevant opinion can only be based on extrinsic materials other than those specified in s 62.


15. Moreover, neither legal principle nor public policy suggests any compelling reason why the Registrar or the President should not use all relevant and available information in deciding whether an application is frivolous or vexatious or a prima facie claim of native title has been established. It is likely that over a period of time the Tribunal will acquire a body of knowledge concerning claims of native title and land dealings in respect of particular areas. It is difficult to accept that Parliament intended that the Tribunal could not use this information when it would show that an application should not be accepted.


16. Furthermore, there is nothing in the Act to indicate that the Registrar or the President cannot exercise the common law right of every official to make inquiries relevant to his or her duties. In Clough v Leahy (90), this Court held that, independently of any statutory powers, Commissioners conducting an inquiry had the common law right of every citizen to ask questions unless legislation prohibits those questions being asked. Far from the Act prohibiting the making of such inquiries, its provisions expressly authorise the gathering of information in respect of applications. Thus, s 108 provides:

"The Tribunal may dismiss an application, at any stage of
the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application."
This section applies after the claim has been accepted. By
its terms, it applies "at any stage of the inquiry". It is not irrelevant that s 109(1) of the Act states that the objectives of the Tribunal's way of operating are to carry out its functions "in a fair, just, economical, informal and prompt way". The last adjective must not be overlooked. Armed with the opinion of the Federal Court on the "pastoral lease question", until reversed, it may be envisaged that the respondents would seek to protect their interests and to rely upon the determination of those interests by the Full Court. Parties cannot be forced into agreement or even into fruitful negotiation. If the respondents insist, sooner rather than later the matter would be returned to the Federal Court where it seems most unlikely that a different result would ensue from a reconsideration of it; and
8. In the consideration of whether an appellate court should
grant leave to appeal, or, more particularly, whether this Court should grant special leave to appeal, it is always pertinent to look to the end of the litigation. Where procedural mistakes are shown, it is by no means unusual, accepting those mistakes, to ask whether, in the result, any substantive injustice has been done to the party complaining. If, in the final consideration of a claim, a procedural error has short-cut a proceeding which is otherwise doomed eventually to fail, it is common for the court considering leave or special leave to take into account, in its decision, the ultimate prospects of success (155). This is because courts are typically concerned with husbanding the provision of relief to deserving cases and with correcting orders rather than the reasoning which sustains those orders. Thus, in the present case if, although the applicants' claims ought to have been accepted by the Registrar, it is revealed, on a proper analysis of those claims, that they are bound to fail (eg because of a fatal legal flaw), whilst a procedural injustice has been done to the applicants, no substantive injustice will have occurred. Moreover, a failure to resolve the uncertainty will undoubtedly delay many genuine cases which are now before the Tribunal, which may shortly be so, or which are not lodged, because of the uncertainty. So far as concerns the interests of other parties to have a proper procedure followed, and the public interest to have that procedure elucidated, remarks by the Court can make plain the procedural error. They can do so without necessarily providing relief.


The limits of advisory opinions
42. I cannot agree for a moment with the proposition that the determination by the Court of the "pastoral lease question" would have amounted to the impermissible provision of an advisory opinion, forbidden by the Constitution and the Court's past authority. Nobody suggested during argument that it would be so. In my opinion this is because, manifestly, it would not.


43. The current rather narrow state of authority on the Court's original jurisdiction to provide advisory opinions may one day require reconsideration as the Court adapts its process to a modern understanding of its constitutional and judicial functions (156). Since In re Judiciary and Navigation Acts (157) was decided in 1921 there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions. For example, the scope of the availability of the beneficial remedy of a declaration, to deal with an apprehended threat of invasion of rights, has expanded greatly, overcoming in the process some of the same resistance as lay behind the refusal to provide advisory opinions (158). The judicial function is not frozen in time. This Court should remain alert to developments in judicial procedures which further, in proper ways, the defence of the rule of law. So far as is compatible with the judicial function, courts should endeavour to be constructive and useful to parties in dispute. If courts do not adopt this attitude, those parties will look to other means, rely on their power or be left unrequited by their expensive visits to the courts.


44. The decision in In re Judiciary and Navigation Acts rested upon the view taken by this Court as to the meaning of "matter" when appearing in ss 75 and 76 of the Constitution, providing for the Court's original jurisdiction. That word was defined to connote "some immediate right, duty or liability to be established by the determination of the Court" (159). However, the foundation of the Court's appellate jurisdiction, as s 73 of the Constitution makes clear, is that the appeal lies from one or more of the following categories of curial dispositions, viz "all judgments, decrees, orders or sentences", relevantly to this case, of a federal court. As its wide language suggests, that phrase should not be given a narrow meaning. Least of all should it be so treated where the result is said to be to deprive this Court of jurisdiction to dispose of an appeal in a way that is both lawful and just.


45. Whatever else may be in doubt, it cannot be disputed that in the present appeal this Court has jurisdiction. Pursuant to a grant of special leave, the appeal is before it from a "judgment" or "order" of the Full Court of the Federal Court of Australia. Different views may be taken of the convenience of dealing with the "pastoral lease question". But the jurisdiction of the Court to proceed to hear argument on the question, as incidental to its determination of the undoubted "appeal", appears to be clearly established. This is not a case where the "judgment" or "order" under appeal arose out of legislation providing for an advisory opinion. No such legislation exists in this case. To that extent the case is quite different from Saffron v The Queen (160) or Mellifont v Attorney-General (Q) (161). The Federal Court's determination of the pastoral lease issue was necessary to its view of the proper determination of the legal rights of the parties.


46. I would resist any attempt to expand the principle against the giving of "advisory opinions" to a new doctrine which would deprive this Court of jurisdiction to deal with issues potentially critical to the rights of the parties properly before it in an appeal. To do so would impose on the Court a rigidity which its past practice and authority negate. Take for example the principle explained in Stead v State Government Insurance Commission (162). A holding of a breach of the rules of procedural fairness may not entitle an aggrieved party to relief. The breach may not have occasioned any ultimate injustice. If that is so "it would be futile to order a new trial" (163). There are many similar cases, before and since (164).


47. Far from giving comfort to any suggested expansion of the ambit of prohibited "advisory opinions", the holding in Mellifont returned the Court to the broad language of s 73 of the Constitution. So long as the "appeal" involves the hearing and determination of an appeal from a judgment decree order or sentence of a designated court, jurisdiction attaches. It may be inferred that, in the context of this Court's place in the Australian judicial hierarchy, the framers of the Constitution considered that it was enough that the designated court appealed from had made a dispository decision of the specified kind. To entertain an appeal from such a court and such a disposition is guarantee enough that the High Court is not being burdened with "functions not ancillary or incidental to the exercise of the judicial power of the Commonwealth" or "foreign to that exercise" (165).


48. The present case illustrates that any narrower view would produce extremely inconvenient consequences for the reasoning of the Court in deciding appeals. The pastoral lease issue is not a question divorced from the administration of the law in relation to an actual matter. It is far from an abstract legal question separate from the determination of the rights of the parties. On the contrary, if the arguments of the respondents before this Court and the opinion of the Federal Court are correct, the issue is the essential question in contest between the parties.


49. I understand the argument that disposal of the appeal on the wider ground offered by the respondents deprives the applicants of the benefit of procedural rights of economic value to which they are entitled. I am sympathetic to those rights. I certainly have no desire to add to the long history of injustices to the Aboriginal people. But neither, in a court of justice, do I wish to be an instrument of potential injustice to the respondents. They are entitled to look to this Court to resolve the parties' legal dispute and, if proved, to uphold their legal rights. In other circumstances I would uphold and defend the procedural rights of the applicants. But in the events which have occurred in this litigation, it remains to be seen whether the applicants' asserted rights are valuable (as the majority of the Court holds or is willing to assume) or whether they are legally without value (as the respondents assert and the Full Court of the Federal Court has held). To determine which view was right, and to avoid the risk of a barren exercise of litigation which merely postpones the resolution of the question, I would have addressed that issue. I would have done so not to provide an advisory opinion to the parties and the interveners. But to determine the essential legal controversy that is at the heart of their contest about their respective rights and obligations.


Conclusion and orders
50. It is for these reasons that my own preference was to order that this Court should proceed to hear argument on the "pastoral lease question" and the associated constitutional question concerning the suggested limitation on the power of the colony and State of Queensland. Twenty advocates appeared before the Court able to argue the point. All of them, save ultimately the applicants, asked that it be determined. The interveners, representing the Commonwealth, four States and the Northern Territory asked the Court to proceed. The written submissions of the parties, reflecting the original grounds of appeal, dealt with the point. No one contested its national importance. No procedural or jurisdictional impediment stood in the way. One day, certainly, the point will have to be resolved. I was quite unconvinced that the cup should pass.


51. My view did not prevail. The Court confined its consideration to the "procedural point". Upon that point I agree with the majority of the Court. With the reservation which I have expressed, I therefore agreed in the orders of the Court announced by Brennan CJ.

1 Published in the Government Gazette 8 June 1907 (Q) vol 1 folio 1555.
2 "An application must be in the prescribed form and be given to the Registrar. It must also contain such information in relation to the matters sought to be determined as is prescribed." The prescribed information is specified in reg 5(1)(a) of the National Native Title Tribunal Regulations.
3 Re Waanyi People's Application (No 2) (1995) 129 ALR 118 at 122.
4 Re Waanyi People's Application (No.1) (1994) 129 ALR 100 at 116.
5 Mabo v Queensland (No 2) (1992) 175 CLR 1.
6 (1995) 129 ALR 118 at 138.
7 (1995) 129 ALR 118 at 138-139.
8 Queensland Government Gazette at 297.
9 North Ganalanja v Queensland (1995) 132 ALR 565 at 571.
10 In accordance with Form 141 of the forms prescribed by the Rules of the Federal Court: see O 75 r 15(1).
11 Under O 75 r 15(10) of the Rules of the Federal Court.
12 (1995) 132 ALR 565 at 577.
13 (1995) 132 ALR 565 at 607.
14 (1995) 132 ALR 565 at 582.
15 (1995) 132 ALR 565 at 615.
16 (1995) 132 ALR 565 at 584.
17 (1995) 132 ALR 565 at 586.
18 If special leave to appeal were granted on this ground, the second respondent proposed to file a notice of contention submitting that the 1883 lease had extinguished native title.
19 Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 300, 303, 305, 314, 316-319.
20 In re Judiciary and Navigation Acts (1921) 29 CLR 257.
21 (1921) 29 CLR 257 at 266.
22 s 72.
23 (1992) 175 CLR 1.
24 (1992) 175 CLR 1 at 15, 69, 110, 196.
25 Mabo v Queensland (1988) 166 CLR 186 at 219.
26 (1992) 175 CLR 1 at 15, 58-62, 109-110, 187-188.
27 "Mischiefs" in the sense in which that term is used in Heydon's Case (1584) 3 Co Rep 7a at 7b (76 ER 637 at 638) - that is, to indicate the problems for the resolution of which a statute is enacted. See Lukey v Edmunds (1916) 21 CLR 336 at 343; Wacando v The Commonwealth (1981) 148 CLR 1 at 25-27.
28 s 68.
29 s 71.
30 s 73.
31 s 74.
32 s 139.
33 Oxford English Dictionary, 2nd ed (1989), vol XII at 470- 471.
34 s 28.
35 s 26(2).
36 s 29(2)(b).
37 ss 26(3), (4), 32.
38 s 31.
39 s 37.
40 s 38.
41 ss 35, 36.
42 The persons who may make an application are identified in a table forming part of s 61(1). They are not confined to a person or persons claiming to hold the native title and the requirements in s 61(2) apply to all applications under Pt 3 of the Act.
43 s 63(1)(b).
44 s 63(2).
45 s 63(3).
46 s 63(3)(a).
47 s 84(1).
48 s 85.
49 Clough v Leahy (1904) 2 CLR 139 at 157-159.
50 s 64.
51 As O'Loughlin J noted in Northern Territory v Lane, unreported, 24 August 1995 at 45.
52 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584-585.
53 ss 74, 81, 84.
54 See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258-259, 268, 269.
55 (1994) 129 ALR 100 at 115-116.
56 May v O'Sullivan (1955) 92 CLR 654 at 658.
57 s 70.
58 ss 71, 73.
59 s 148.
60 (1995) 129 ALR 118 at 139.
61 (1995) 129 ALR 118 at 139.
62 s 63(1).
63 s 63(2).
64 s 169(2).
65 s 66.
66 s 68.
67 s 70(1)(a).
68 s 70(1)(b).
69 s 71.
70 s 72.
71 s 74.
72 s 142.
73 s 144(1).
74 s 145.
75 s 146.
76 s 148.
77 s 147.
78 s 151.
79 s 156(1).
80 s 166.
81 s 167(1). But see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
82 ss 26, 28.
83 s 29.
84 s 31.
85 s 33.
86 Defined in s 27 as either the National Native Title Tribunal or a recognised "State/Territory body".
87 s 31(2).
88 s 37.
89 ss 35, 36 and 38.
90 (1904) 2 CLR 139 at 156-157.
91 s 66.
92 s 66.
93 "A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
Governments should, where appropriate, facilitate negotiation
on a regional basis between the parties concerned in relation to:
(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and
(b) proposals for the use of such land for economic purposes.
It is important that appropriate bodies be recognised and
funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation."
94 ss 26-42, 72.
95 s 26(2).
96 s 63.
97 ss 70(1)(a) and 148.
98 cf May v O'Sullivan (1955) 92 CLR 654.
99 Cohen v Peko-Wallsend Ltd (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. The position is the same in the United States: Bowers v Columbia General Corp (1971) 336 F Supp 609; Everhart v Knebel (1976) 424 F Supp 390.
100 Cases such as Karaguleski v Vasil Bros and Co Pty Ltd (1981) 1 NSWLR 267 and Barclay Mowlem Construction Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451 that suggest that a judge is bound to determine disputed questions of law in such proceedings cannot now be accepted as authoritative.
101 cf Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545.
102 See Kunakool v Boys (1987) 77 ALR 435. See also Vereker v Rodda (1987) 72 ALR 49 - on appeal O'Donovan v Vereker (1987) 76 ALR 97; Saunders v Brown (1987) 72 ALR 66; Shepherd v Griffiths (1985) 60 ALR 176.
103 United States v Zerbst (1953) 111 F Sup 807; State ex rel Berger v Jennings (1974) 520 P 2d 313; State v Carter (1986) 714 P 2d 1217.
104 cf Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
105 Unreported, Federal Court of Australia, 24 August 1995 at 39.
106 In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267.
107 Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 300.
108 My reasoning did not have to lead to the conclusion that the extinguishment issue was not ripe for determination. This is because I have held that the Tribunal could refer to the extinguishment materials. In that context, a final decision by me on the extinguishment issue would not necessarily have been an advisory opinion. If, for example, I had held that the extinguishment materials so irresistibly pointed to extinguishment that there was no prima facie claim, the decision on extinguishment would be a binding one. But if I had taken that view, I could not have been a party to an order that the Tribunal accept the claim. Once I held that the question of extinguishment was an arguable issue and that the application of the Waanyi People should have been accepted, any final opinion of mine on the extinguishment issue could be advisory only.
109 Collins v The Queen (1975) 133 CLR 120.
110 Re Waanyi People's Application (1995) 129 ALR 118. See also (1994) 129 ALR 100.
111 North Ganalanja v Qld (1995) 132 ALR 565.
112 (1992) 175 CLR 1.
113 North Ganalanja Aboriginal Corporation v Queensland (1995) 69 ALJR 569.
114 Brennan CJ, Dawson and McHugh JJ.
115 Reference was made to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 which, it was suggested, occasioned the need for the proposed amendments to the Act or some of them.
116 Transcript of the special leave application, 15 December 1995, at 5ff.
117 By s 63 (2) the Registrar has little room to manoeuvre having formed the requisite opinion; cf Northern Territory of Australia v Lane, unreported, Federal Court of Australia, 24 August 1995, at 9.
118 The President relied on the grant under the "1883 lease" as explained in the reasons of the majority.
119 See Re Waanyi People's Application (1995) 129 ALR 100.
120 Re Waanyi People's Application (1994) 129 ALR 100 at 112.
121 North Ganalanja v Queensland (1995) 132 ALR 565 at 602.
122 (1973) 6 WWR 97. See also Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399.
123 (1973) 6 WWR 97 at 119. Relief was denied by the Federal Court of Canada. See Attorney-General of Canada v Morrow (1973) 6 WWR 150 at 156.
124 See eg Nettheim, "'Moral Shortcoming': Waanyi Peoples and Native Title", (1995) 3 (73) Aboriginal Law Bulletin 10; Bartlett, "Undermining the National Native Title Tribunal - Waanyi No 1 and 2", (1995) 3 (73) Aboriginal Law Bulletin 14; Kennedy, "Lawn Hill's Pastoral Leases: North Ganalanja and Bidanggu Aboriginal Corporations for the Waanyi People v Queensland and CRA"- case notes (1995) 3 (77) Aboriginal Law Bulletin 17.
125 See eg Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.
126 As to "prima facie case" see eg May v O'Sullivan (1955) 92 CLR 654; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622; American Cyanamid Co v Ethicon Ltd (1975) AC 396; A v Hayden (No 1) (1985) 59 ALJR 1 at 4f; 56 ALR 73 at 77f; Bunker v Mahoney (1917) VLR 65 at 67; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 303.
127 The Act, Preamble.
128 See eg May v O'Sullivan (1955) 92 CLR 654 at 658.
129 See (1992) 175 CLR 1 at 15, 69 217.
130 See eg R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399, 411f.
131 cf Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 576.
132 s 66(1)(b).
133 s 66(2).
134 s 69(1).
135 s 70(1).
136 s 71.
137 s 72(1).
138 s 72(2).
139 s 72(3).
140 s 72(5).
141 s 73.
142 s 144(1).
143 s 145(1). But see s 145(2).
144 See Webster v Lampard (1993) 177 CLR 598 at 619.
145 See affidavit of Ms Janine Ward of the Federal Attorney- General's Department. She deposed to reliable information that, at 23 November 1995, the Registrar of the Tribunal had received 156 applications for a determination that native title exists. "It is estimated that 86 of these applications related to land which was or had been the subject of a pastoral lease; 12 of these leases were held by or on behalf of Aboriginal people." Ms Ward also deposed that "in a number of mediation conferences ... the parties are often unwilling to mediate in relation to claims on land which is or has been subject to the grant of a pastoral lease while the effect of that grant on native title is unresolved".

146 See Mabo (No 2), (1992) 175 CLR 1 at 68.
147 (1992) 175 CLR 1 at 61, 69, 72-73.
148 (1992) 175 CLR 1 at 16.
149 (1992) 175 CLR 1 at 217.
150 (1992) 175 CLR 1 at 110, 117.
151 (1992) 175 CLR 1 at 158.
152 See s 74 of the Act.
153 (1993) 117 ALR 206 at 214.
154 See eg Kruger v The Commonwealth (1995) 69 ALJR 885.
155 See eg Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 515. "Logically it should follow that the appeal should be dismissed. However, we have heard full argument on the questions upon which the fate of the action depends and have reached the conclusion that the defence raised by the respondent must fail. No fact is in dispute. It has not been suggested that there is any other matter on which argument could usefully be advanced. If the action is sent to trial, the Court will be bound to apply our statement of the law and the appellant must succeed. In these circumstances it would be absurd to give the appellant leave to defend the action."
156 See Australia, Commonwealth Parliament, Senate Standing Committee on Constitutional and Legal Affairs, Advisory Opinions by the High Court, Paper No 222 (1977), par 10; Crawshaw, "The High Court of Australia and Advisory Opinions" (1977) 51 Australian Law Journal 112 at 125-126; Official Record of Debates of the Australian Constitutional Convention, Perth, (1978) at 28-49, 203-204. Contrast The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 675.
157 (1921) 29 CLR 257.
158 See Crawshaw, "The High Court of Australia and Advisory Opinions" (1977) 51 Australian Law Journal 112 at 125-126; Aetna Life Insurance Co v Haworth (1937) 300 US 227; Poe v Ullmann (1961) 367 US 497.
159 (1921) 29 CLR 257 at 265.
160 (1953) 88 CLR 523 at 528.
161 (1991) 173 CLR 289.
162 (1986) 161 CLR 141.
163 (1986) 161 CLR 141 at 145.
164 For a vivid illustration, see eg Ex parte Corbishley; Re Locke (1967) 67 SR(NSW) 396.
165 See Mellifont (1991) 173 CLR 289 at 300; cf Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476f; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475, 512, 514; Fencott v Muller (1983) 152 CLR 570 at 603, 609.