Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales

[2021] FCA 169

FEDERAL COURT OF AUSTRALIA

Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169  

File number:

NSD 38 of 2019

Judgment of:

GRIFFITHS J

Date of judgment:

5 March 2021

Catchwords:

NATIVE TITLE – separate questions concerning multiple parcels of land the subject of one of eight different kinds of statutory leases in NSW – statutory leases comprise Scrub Leases, Settlement Leases, Improvement Leases, Homestead Leases, 18^th Section Leases, Western Lands Leases for a Term, Special Leases for a Term and Special Leases for Grazing – history of Crown Lands legislation in NSW dating back to the Waste Lands Act 1842 (Imp) and including the Crown Lands Act 1884 (NSW), Crown Lands Act 1889 (NSW), Crown Lands Act 1895 (NSW), Western Lands Act 1901 (NSW) and the Crown Lands Consolidation Act 1913 (NSW) – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) (NT Act) – whether statutory leases extinguished any native title in relation to the lands or waters within the lease areas in accordance with s 23E of the NT Act and s 20(1) of the Native Title (New  South Wales) Act 1994 (NSW) – whether any one or more legislative or executive act or acts subsequent to the original grant of the statutory leases resulted in the lessee holding a right of exclusive possession – whether any such right of exclusive possession had the effect of wholly extinguishing any native title rights and interests in the lands or waters covered by the leases – whether the Settlement Leases, and certain of the Western Lands Leases for a Term and Special Leases for a Term, consisted of a grant of a “Scheduled interest” within s 23B(2)(c)(i) of the NT Act with reference to cll 3(3), 3(5) or 3(8) of Part 1 of Schedule 1 to the NT Act – validity of the Settlement Leases – whether two of the Special Leases for a Term are covered by s 23B(2)(c)(iii) of the NT Act – whether any native title rights and interests in the leased land have been extinguished by operation of common law principles

NATIVE TITLE – separate question concerning reservation of lands and waters for temporary common – whether any native title rights and interests in the lands or waters the subject of the reservation were wholly extinguished during the period of the reservation by reason of the conferral of a right of exclusive possession by (a) the reservation, (b) appointment of trustees of the land and/or (c) the operation of any legislation which applied to the land – whether the reservation consisted of a “grant or vesting” of a “freehold estate” under s 23B(2)(c)(ii) of the NT Act

Legislation:

Native Title Act 1993 (Cth), ss 23B(2), 23B(2)(a), 23B(2)(b), 23B(2)(c)(i), 23B(2)(c)(ii), 23B(2)(c)(iv), 23B(2)(c)(viii), 23B(3), 23B(9C), 23C, 23E, 61, 246, 247, 248, 248A, 249C, cl 3(2) of Pt 1 of Sch 1, cl 3(3) of Pt 1 of Sch 1, cl 3(5) of Pt 1 of Sch 1, cl 3(8) of Pt 1 of Sch 1

Federal Court Rules 2011 (Cth), r 30.01

Commons Management Act 1989 (NSW), ss 3, 4(3), 9(1)(a), 9(1)(b), 14, 16, 17, 18, 23(1), 25, 26, 27, 28, 56, 64, Sch 5

Commons Regulation Act 1898 (NSW), ss 3, 4, 5, 6, 13, 14, 15, 17, 23, 24

Crown Lands (Amendment) Act 1908 (NSW), ss 5, 6, 7, 8, 9

Crown Lands (Amendment) Act 1931 (NSW), ss 6(a)(i), 6(a)(ii)

Crown Lands (Amendment) Act 1932 (NSW), s 10(j)

Crown Lands (Amendment) Act 1964 (NSW), s 5(1)(c)(ii)

Crown Lands (Homestead Selections and Settlement Leases) Act 1896 (NSW), s 2

Crown Lands (Special Leases) Amendment Act 1952 (NSW), ss 2(a), 2(b)

Crown Lands Act 1884 (NSW), ss 4, 5, 6, 34, 70, 71, 72, 73, 74, 75, 77, 78, 78(i), 78(vii), 79, 80, 81, 82, 82(i), 82(ii), 82(iii), 82(iv), 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 96, 97, 98, 99, 100, 101, 104, 105, 106, 109, 118, 130, 133

Crown Lands Act 1889 (NSW), ss 21, 24, 29, 30, 31, 33, 34, 35, 39, 43

Crown Lands Act 1895 (NSW), ss 1(c), 13, 13(i), 14, 15, 16, 17, 17(a), 17(b), 17(c), 23, 24, 24(i), 25, 25(b), 25(c), 25(d), 25(e), 25(f), 25(g), 26, 27, 42, 43, 51, 55

Crown Lands Act 1989 (NSW), s 100(1)

Crown Lands Act Amendment Act 1903 (NSW), ss 1, 2, 5, 12, 18, 25

Crown Lands Alienation Act 1861 (NSW), ss 1, 4

Crown Lands and Closer Settlement (Amending) Act 1924 (NSW), s 7(b)

Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW), ss 4(1)(b)(ii), 4(1)(f)(ii)

Crown Lands Consolidation Act 1913 (NSW), ss 3(f), 28, 37X, 74, 75, 75A, 76, 77, 77(a), 100(1), 101(2), 101(3), 101(4), 164, 184, 185, 190, 193, 193(2), 226(1)(b), 229, 233, 250, 250(1), 250(3), 263

Crown Lands Occupation Act 1861 (NSW), ss 1, 4, 13(5), 19, 20, 21, 33

Forestry Act 1909 (NSW), s 20

Forestry Act 1916 (NSW)

Improvement Leases Cancellation Act 1906 (NSW), s 2

Inclosed Lands Protection Act 1901 (NSW)

Local Government Act 1919 (NSW)

Mining Act 1874 (NSW), ss 2, 13, 15(1), 15(2), 15(4), 15(5), 15(6), 34, 56

Mining Act 1906 (NSW), ss 3, 9, 14(1), 15, 16(1), 16(2), 23, 23(1)(c), 45,

Native Title (New South Wales) Act 1994 (NSW), ss 20, 20(1)

Rabbit Act 1890 (NSW)

Real Property Act 1900 (NSW), s 13D

Water and Drainage Act 1902 (NSW), s 8

Western Lands (Amendment) Act 1905 (NSW)

Western Lands (Amendment) Act 1927 (NSW), ss 5(1)(c), 5(3)

Western Lands Act 1901 (NSW), ss 2, 2(b), 3, 13, 17, 17C, 18, 18A, 23, 28A, 28B, 37, 39, Sch A

Land Act 1898 (WA), s 107

Land Act 1933 (WA), ss 106, 116, 116(5), Sch 21

Waste Lands Act 1842 (Imp), s 3

Waste Lands Amendment Act 1846 (Imp), ss 1, 6, 10

Cases cited:

Akiba v Commonwealth [2013] HCA 33; 250 CLR 209

Anderson v Wilson [2000] FCA 394; 97 FCR 453

Brown v  Western Australia [2012] FCAFC 154; 208 FCR 505

Chisholm v Macauley (1868) 7 SCR (NSW) 312

Daniel v State of Western Australia [2004] FCA 1388; 212 ALR 51

Drinkwater v Arthur (1871) 10 SCR NSW 193

Fejo v Northern Territory [1998] HCA 58; 195 CLR 96

Fergusson v Mackinnon (1912) 12 SR (NSW) 406

Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32

Hopkins v Minister for Lands (1912) 12 SR (NSW) 215

Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792

Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1

Minister for Lands v Priestley [1911] HCA 68; 13 CLR 357

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58

Peters v Manly Municipal Council [2006] NSWLEC 676; 149 LGERA 321

Pincham v Minister for Lands (1946) 46 SR (NSW) 393

Queensland v Congoo [2015] HCA 17; 256 CLR 239

Sullivan v Horsley (1914) 14 SR (NSW) 431

Wandarang People v Northern Territory [2000] FCA 923; 104 FCR 380

Western Australia v Brown [2014] HCA 8; 253 CLR 507

Western Australia v Ward [2002] HCA 28; 213 CLR 1

Wik Peoples v State of Queensland [1996] HCA 40; 187 CLR 1

Wilson v Anderson [2002] HCA 29; 213 CLR 401

Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38

Division:

General Division

Registry:

New South Wales

National Practice Area:

Native Title

Number of paragraphs:

745

Date of hearing:

13-17, 20-22, 24 July 2020

Counsel for the Applicant:

Mr V Hughston SC with Mr C Gregory

Solicitor for the Applicant:

Ms I Brinin of NTSCORP

Counsel for the First Respondent:

Mr J Waters with Mr H El-Hage

Solicitor for the First Respondent:

Ms C Fegan with Ms S Lowes of Crown Solicitor’s Office

Counsel for the Eighth, Ninth, Tenth, Eleventh and Fifteenth Respondents:

Ms S Pritchard SC with Mr R Pettit

Solicitor for the Eighth, Ninth, Tenth, Eleventh and Fifteenth Respondents:

Mr J Behrendt of Chalk & Behrendt

ORDERS

NSD 38 of 2019

BETWEEN:

ELAINE OHLSEN AND OTHERS ON BEHALF OF THE NGEMBA/NGIYAMPAA PEOPLE

Applicant

AND:

ATTORNEY GENERAL OF NEW SOUTH WALES and others named in the Schedule

Respondents

ORDER MADE BY:	GRIFFITHS J
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT:

A. Schedule 1 – Scrub Leases

The separate questions at [82] of Schedule 1 concerning each of Scrub Lease No. 287 and Scrub Lease No. 416 are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

B. Schedule 2 – Settlement Leases

The separate questions at [141], [144], [147], [150] and [153] of Schedule 2 concerning each of the five Settlement Leases are answered as follows:

(i) Settlement Lease No. 1895/16 Coonamble

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – No. 

(ii) Settlement Lease No. 1898/39 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i) insofar as that part of the land the subject of Settlement Lease No. 1898/39 Nyngan was converted to Conditional Lease No. 1927/15 Nyngan.  No as to question (a)(ii).

Question (d) – Yes, insofar as that part of the land the subject of Settlement Lease No. 1898/39 Nyngan was converted to Conditional Lease No. 1927/15 Nyngan. 

(iii) Settlement Lease No. 1911/2 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i) insofar as that part of the land the subject of Settlement Lease No. 1911/2 Nyngan was converted to Conditional Lease No. 1929/4 Nyngan.  No as to question (a)(ii).

Question (d) – Yes, insofar as that part of the land the subject of Settlement Lease No. 1911/2 Nyngan was converted to Conditional Lease No. 1929/4 Nyngan.

(iv) Settlement Lease No. 1909/3 Coonamble

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i). Yes as to question (a)(ii) because of the grant in 1936 of a lease in perpetuity.

Question (d) – Yes. 

(v) Settlement Lease No. 1911/9 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – No. 

C. Schedule 3 – Improvement Leases

The separate questions at [248], [251] and [254] of Schedule 3 concerning each of Improvement Lease No. 1161 Coonamble, Improvement Lease No. 581 Nyngan and Improvement Lease No. 958 Nyngan are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise. 

D. Schedule 4 – Homestead Leases

The separate questions at [288] and [291] of Schedule 4 concerning each of Homestead Lease No. 1244 and Homestead Lease No. 1478 are answered as follows:

Question (a) – No. 

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise. 

E. Schedule 5 – 18^th Section Leases

The separate questions at [336], [339], [342], [345] and [348] of Schedule 5 concerning each of 18^th Section Lease No. 114 Nyngan, 18^th Section Lease No. 146 Nyngan, 18^th Section Lease No. 82, 18^th Section Lease No. 15 Coonamble and 18^th Section Lease No. 59 Walgett are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No

Question (d) – Does not arise. 

F. Schedule 6 – Western Lands Leases for a Term

The separate questions at [376] and [379] of Schedule 6 concerning each of the Western Lands Leases are answered as follows:

(i) Western Lands Lease No. 3469

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

(ii) Western Lands Lease No. 11935

Question (a)(i) – Yes, because the grant of the lease consisted of the grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth). 

Question (a)(ii) – No. 

Question (b) – Yes, following on from the answer to question (a)(i).

Question (c) – No. 

Question (d) – Does not arise. 

G. Schedule 7 – Special Leases for a Term

The separate questions at [449], [458], [466], [474], [482], [489], [498], [505] and [518] of Schedule 7 concerning each of the following nine Special Leases for a Term are answered as follows:

(i) Special Lease No. 1955/7 Warren

Question (a) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise.

(ii) Special Lease No. 1939/1 Warren

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise. 

(iii) Special Lease No. 1961/48 Warren

Question (a)(i) – Yes.

Question (a)(ii) – No. 

Question (b) – Yes in respect of question (a)(i). 

Question (c) – Does not arise. 

Question (d) – Does not arise. 

(iv) Special Lease No. 1958/2 Coonamble

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes in respect of both question (a)(i) and (ii).

Question (c) – Does not arise.

Question (d) – Does not arise. 

(v) Special Lease No. 1924/16 Walgett

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes in respect of both question (a)(i) and (ii).

Question (c) – Does not arise.

Question (d) – Does not arise. 

(vi) Special Lease No. 1952/6 Coonamble

Question (a) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise. 

(vii) Special Lease No. 1964/1 Coonamble

Question (a) – No.

Question (b) – No.

Question (c) – Does not arise. 

Question (d) – Does not arise.

(viii) Special Lease No. 1952/1 Warren

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No. 

Question (d) – Does not arise.

(ix) Special Lease No. 1957/42 Nyngan

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise. 

H. Schedule 8 – Special Leases for Grazing

The separate questions at [656] and [659] of Schedule 8 concerning each of the two Special Leases for Grazing are answered as follows:

(i) Special Lease No. 1908/51 Coonamble

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise. 

(ii) Special Lease No. 1957/6 Nyngan

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise. 

I. Schedule 9 – Reservation

The separate question at [703] of Schedule 9 concerning the Canbelego Common is answered as follows:

Question (a) – No.

Question (b) – No.

Question (c) – No.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION	[1]
Some procedural matters	[7]
Some introductory observations	[16]
(a) Some primary provisions of the NT Act	[20]
(b) An anachronism or artificiality presented by the separate questions	[23]
Summary of general principles concerning extinguishment of native title	[28]
(a) The 1998 amendments to the NT Act	[39]
(b) Leases and the extinguishment of native title	[48]
(c) Some general observations	[60]
The parties’ primary submissions outlined	[68]
(a) The State’s primary submissions outlined	[71]
(b) The applicant’s primary submissions outlined	[78]
(c) Aboriginal Land Councils’ primary submissions outlined	[80]
Conclusion	[81]
SCHEDULE 1 – SCRUB LEASES	[82]
(a) Questions for determination	[82]
(b) Agreed facts	[83]
A. Scrub Lease No 287	[84]
B.  Scrub Lease No. 416	[84]
(c) Other matters	[84]
A. Scrub Lease No. 287	[85]
B. Scrub Lease No. 416	[85]
Consideration and determination	[85]
(a) History of Scrub Leases	[85]
(b) Some earlier legislative history	[96]
(c) Some additional factual matters	[108]
(d) State’s primary contentions summarised	[112]
(e) The applicant’s primary contentions summarised	[119]
Resolution	[120]
Conclusions on Scrub Leases Nos. 287 and 416	[138]
SCHEDULE 2 – SETTLEMENT LEASES	[139]
The effect of Settlement Lease No. 1895/16 Coonamble granted over Portions 1 and 2 of Parish of Allamurgoola, County of Ewenmar, part of which is now known as Lot 7300, DP1149110 [ID Area 10]	[141]
(a) Questions for determination	[141]
(b) Agreed facts	[142]
(c) Other matters	[143]
The effect of Settlement Lease No. 1898/39 Nyngan granted over various Portions of Parish of Boomagril, County of Gregory, part of which is now known as Lot 7001, DP1059075 [ID Area 309]	[144]
(a) Questions for determination	[144]
(b) Agreed facts	[145]
(c) Other matters	[146]
The effect of Settlement Lease No. 1911/2 Nyngan an area of land including Lot 7001, DP1027085 [ID Area 1947]	[147]
(a) Questions for determination	[147]
(b) Agreed facts	[148]
(c) Other matters	[149]
The effect of Settlement Lease No. 1909/3 Coonamble granted over Portions 5 and 14 of Parish of Dahomey, County of Leichhardt (part of which is now Lot 29, DP728742 and Lot 14, DP754201) [ID Areas 1963 and 1965]	[150]
(a) Questions for determination	[150]
(b) Agreed facts	[151]
(c) Other matters	[152]
The effect of Settlement Lease No. 1911/9 Nyngan granted over Portion 2 of Parish of Myall Cowall, County of Flinders, part of which is now known as Lot 1, DP752898 [ID Area 4099]	[153]
(a) Questions for determination	[153]
(b) Agreed facts	[154]
(c) Other matters	[155]
Consideration and determination	[156]
(a) Legislation concerning Settlement Leases	[156]
(b) Additional facts	[163]
(i) Settlement Lease No. 1895/16 Coonamble	[164]
(ii) Settlement Lease No. 1898/39 Nyngan	[165]
(iii) Settlement Lease No. 1911/2 Nyngan	[166]
(iv) Settlement Lease No. 1909/3 Coonamble	[167]
(v) Settlement Lease No. 1911/9 Nyngan	[168]
(c) State’s primary submissions summarised	[169]
(i) Settlement Lease No. 1898/39 Nyngan	[193]
(ii) Settlement Lease No. 1911/2 Nyngan	[196]
(d) Applicant’s primary submissions summarised	[199]
Validity of the five Settlement Leases and Scheduled interest issue	[201]
Resolution	[205]
(a) Validity of the five Settlement Leases	[206]
(b) Are any of the five Settlement Leases Scheduled interests?	[212]
(i) “Scheduled interest” under cl 3(3) of Sch 1, Pt 1 of the NT Act	[213]
(ii) “Scheduled interest” under cl 3(5) of Sch 1, Pt 1 of the NT Act	[215]
(c) The applicant’s position regarding the relevance of legislative or executive acts post initial grant or vesting	[217]
(d) Exclusive possession, inconsistent rights with native title rights and extinguishment	[218]
(i) Settlement Lease No. 1895/16 Coonamble	[232]
(ii) Settlement Lease No. 1898/39 Nyngan	[233]
(iii) Settlement Lease No. 1911/12 Nyngan	[235]
(iv) Settlement Lease No. 1909/3 Coonamble	[237]
(v) Settlement Lease No. 1911/9 Nyngan	[239]
Conclusion	[241]
SCHEDULE 3 – IMPROVEMENT LEASES	[247]
The effect of Improvement Lease No. 1161 Coonamble granted over Block 1,112, Parish of Dahomey, County of Leichhardt (now part Lot 7002, DP1055996 and Lot 7300, DP1160160) [ID Areas 1960 and 1961]	[248]
(a) Questions for determination	[248]
(b) Agreed facts	[249]
(c) Other matters	[250]
The effect of Improvement Lease No. 581 Nyngan granted over Block No. 547, Parish of Nardoo, County of Flinders (now Lot 1, DP1135985) [ID Area 4108]	[251]
(a) Questions requiring determination	[251]
(b) Agreed facts	[252]
(c) Other matters	[253]
The effect of Improvement Lease No. 958 Nyngan granted over Block No. 891, Parish of Warong, County of Canbelego (now part of Lot 7001, DP1026171) [ID Area 5146]	[254]
(a) Questions for determination	[254]
(b) Agreed facts	[255]
(c) Other matters	[256]
Consideration and determination	[257]
(a) Improvement Leases	[258]
(b) Additional facts	[262]
(c) State’s primary submissions summarised	[270]
(d) Applicant’s primary submissions summarised	[278]
Resolution	[279]
Conclusion	[286]
SCHEDULE 4 – HOMESTEAD LEASES	[287]
The effect of Homestead Lease No. 1244 granted over an area of land in the Parishes of Kaloogleguy, Mullimut and Buckwaroon, County of Robinson (part of Lot 7303, DP1170965) [ID Area 3360]	[288]
(a) Questions for determination	[288]
(b) Agreed facts	[289]
(c) Other matters	[290]
The effect of Homestead Lease No. 1478 granted over Portion H.L. 95.9 in the Parish of Narri, County of Robinson (part of which is now the land depicted as lots in DP75853, Lot 5, DP755672 and Lot 1, DP92450) [ID Areas 4138 to 4200 and 4203 inclusive]	[291]
(a) Questions for determination	[291]
(b) Agreed facts	[292]
(c) Other matters	[293]
Consideration and determination	[294]
(a) Legislation concerning Homestead Leases	[294]
(b) Additional facts	[319]
(c) State’s primary submissions summarised	[321]
(d) Applicant’s primary submissions summarised	[323]
Resolution	[324]
Conclusion	[334]
SCHEDULE 5 – 18TH SECTION LEASES	[335]
The effect of 18th Section Lease No. 114 Nyngan granted over Lot 7002, DP1027075; Lot 7001, DP1027075; Lot 7002, DP1024988 and Lot 1, DP914867 [ID Areas 5124, 5125, 5128 and 5129]	[336]
(a) Questions for determination concerning 18th Section Lease No. 114 Nyngan	[336]
(b) Agreed facts	[337]
(c) Other matters	[338]
The effect of 18th Section Lease No. 146 Nyngan granted over land now comprising Lot 7001, DP1026865; Lot 7300, DP1128577; Lot 4, DP47519 and Lot 21, DP727221 [ID Areas 90, 92, 93 and 2193]	[339]
(a) Questions for determination concerning 18th Section Lease No. 146 Nyngan	[339]
(b) Agreed facts	[340]
(c) Other matters	[341]
The effect of 18th Section Lease No. 82 granted over land parts of which are now known as Lot 7002, DP1059772; Lot 7005, DP1060228; Lot 7006, DP1071567; Lot 7001, DP1071568; Lot 7002, DP1059774; Lot 7007, DP1059889 and Lot, 7304 DP1165190 [ID Areas 130, 131, 132, 133, 5563, 5564 and 5569]	[342]
(a) Questions for determination concerning 18th Section Lease No. 82	[342]
(b) Agreed facts	[343]
(c) Other matters	[344]
The effect of 18th Section Lease No. 15 Coonamble granted over land parts of which are now known as Lot 7001, DP1055933; Lot 7005, DP1055934; Lot 7007, DP1032459; Lot 7004, DP1032460; Lot 7003, DP1032460; Lot 7002, DP1032460 and Lot 68, DP725892 [ID Areas 1958, 1959, 5585, 5586, 5587, 5588 and 5591]	[345]
(a) Questions for determination concerning 18th Section Lease No. 15 Coonamble	[345]
(b) Agreed facts	[346]
(c) Other matters	[347]
The effect of 18th Section Lease No. 59 Walgett granted over an area of land which includes the land now known as Lot 7001, DP1033953 [ID Area 3214]	[348]
(a) Questions for determination concerning 18th Section Lease No. 59 Walgett	[348]
(b) Agreed facts	[349]
(c) Other matters	[350]
Consideration and determination	[351]
(a) Legislation concerning 18th Section Leases	[351]
(b) Additional facts	[357]
(c) State’s primary submissions summarised	[358]
(d) Applicant’s primary submissions summarised	[365]
Resolution	[366]
Conclusion	[374]
SCHEDULE 6 – WESTERN LANDS LEASES FOR A TERM	[375]
The effect of WLL No. 3469 granted over an area of land including the land now known as Lot 7301, DP1179279 and Lot 7300, DP1179279	[376]
(a) Questions for determination concerning WLL No. 3469	[376]
(b) Agreed facts	[377]
(c) Other matters	[378]
The effect of WLL No. 11935 granted over Portion 4582 of Parish of Mopone, County of Robinson (now Lot 4582, DP767746)	[379]
(a) Questions for determination concerning WLL No. 11935	[379]
(b) Agreed facts	[380]
(c) Other matters	[381]
Consideration and determination	[382]
(a) Legislation concerning Western Lands Leases	[382]
(b) Additional facts	[390]
A. WLL No. 3469	[391]
B. WLL No. 11935	[402]
(c) State’s primary submissions summarised	[409]
(d) Applicant’s primary submissions summarised	[422]
Resolution	[429]
(a) Did the grant of the WLLs involve a right of exclusive possession?	[429]
(b) Is WLL No. 11935 a “Scheduled interest”?	[441]
Conclusion	[445]
SCHEDULE 7 – SPECIAL LEASES FOR A TERM	[448]
The effect of SLT No. 1955/7 Warren granted over Portion 22 of Parish of Tongamba, County of Gregory (now Lot 22, DP753495)	[449]
(a) Questions for determination concerning SLT No. 1955/7 Warren	[449]
(b) Agreed facts	[450]
(c) Additional findings of fact	[451]
(d) Other matters	[457]
The effect of SLT No. 1939/1 Warren granted over portion 79 of Parish of Grahway, County of Gregory (now Lot 79, DP753459)	[458]
(a) Questions for determination concerning SLT No. 1939/1 Warren	[458]
(b) Agreed facts	[459]
(c) Additional findings of fact	[460]
(d) Other matters	[465]
The effect of SLT No. 1961/48 Warren granted over Portion 18 of Parish of The Mole, County of Gregory (now Lot 18, DP753494)	[466]
(a) Questions for determination concerning SLT No. 1961/48 Warren	[466]
(b) Agreed facts	[467]
(c) Additional findings of fact	[468]
(d) Other matters	[473]
The effect of SLT No. 1958/2 Coonamble granted over portion 237 of Parish of Bobarah, County of Ewenmar (now Lot 237, DP752554)	[474]
(a) Questions for determination concerning SLT No. 1958/2 Coonamble	[474]
(b) Agreed facts	[475]
(c) Additional findings of fact	[476]
(d) Other matters	[481]
The effect of SLT No. 1924/16 Walgett granted over Portion 33 of Parish of Carinda, County of Clyde (now Lot 33, DP751556)	[482]
(a) Questions for determination concerning SLT No. 1924/16 Walgett	[482]
(b) Agreed facts	[483]
(c) Additional findings of fact	[484]
(d) Other matters	[488]
The effect of SLT No. 1952/6 Coonamble granted over the land subject to R76506 for future public requirements in Parish of Gilguldry, County of Leichhardt (now Lot 7004, DP93403)	[489]
(a) Questions for determination concerning SLT No. 1952/6 Coonamble	[489]
(b) Agreed facts	[490]
(c) Additional findings of fact	[491]
(d) Other matters	[497]
The effect of SLT No. 1964/1 Coonamble granted over portion 99 and the road to the west of portion 99 of Parish of Galargambone, County of Ewenmar (now Lot 1, DP722381 and Lot 99, DP752582)	[498]
(a) Questions for determination concerning SLT No. 1964/1 Coonamble	[498]
(b) Agreed facts	[499]
(c) Additional findings of fact	[500]
(d) Other matters	[504]
The effect of SLT No. 1952/1 Warren granted over Portion 79 of Parish of Grahway, County of Gregory (now Lot 79, DP753459)	[505]
(a) Questions for determination concerning SLT No. 1952/1 Warren	[505]
(b) Agreed facts	[506]
(c) Additional findings of fact	[507]
(d) Other matters	[517]
The effect of SLT No. 1957/42 Nyngan granted over Portions 43 and 46, part of Buddah Street and the road south east of portion 46 of Parish of Neiley, County of Canbelego in the Village of Girilambone (now Lots 43 and 46, DP751336)	[518]
(a) Questions for determination concerning SLT No. 1957/42 Nyngan	[518]
(b) Agreed facts	[519]
(c) Additional findings of fact	[520]
(d) Other matters	[525]
Consideration and determination	[526]
(a) Legislation concerning SLTs	[526]
(b) State’s primary submissions summarised	[537]
(i) SLT No. 1955/7 Warren	[538]
(ii) SLT No. 1939/1 Warren	[539]
(iii) SLT No. 1961/48 Warren	[541]
(iv) SLT No. 1958/2 Coonamble	[543]
(v) SLT No. 1924/16 Walgett	[545]
(vi) SLT No. 1952/6 Coonamble	[548]
(vii) SLT No. 1964/1 Coonamble	[549]
(viii) SLT No. 1952/1 Warren	[550]
(ix) SLT No. 1957/42 Nyngan	[551]
(c) Applicant’s primary general submissions summarised	[552]
Resolution	[563]
(a) SLT No. 1955/7 Warren	[569]
A. Conclusion	[577]
(b) SLT No. 1939/1 Warren	[578]
A. Scheduled interest	[579]
B. Exclusive possession	[582]
C. Conclusion	[589]
(c) SLT No. 1961/48 Warren	[590]
A. Scheduled interest	[591]
B. Exclusive possession	[596]
C. Conclusion	[599]
(d) SLT No. 1958/2 Coonamble	[600]
A. Commercial lease	[601]
B. Exclusive possession	[608]
C. Conclusion	[613]
(e) SLT No. 1924/16 Walgett	[614]
A. Commercial lease	[615]
B. Exclusive possession	[620]
C. Conclusion	[625]
(f) SLT No. 1952/6 Coonamble	[626]
A. Conclusion	[634]
(g) SLT No. 1964/1 Coonamble	[635]
A. Conclusion	[639]
(h) SLT No. 1952/1 Warren	[640]
A. Conclusion	[645]
(i) SLT No. 1957/42 Nyngan	[646]
A. Scheduled interest	[648]
B. Exclusive possession	[651]
C. Conclusion	[654]
SCHEDULE 8 – SPECIAL LEASES FOR GRAZING	[655]
The effect of Special Lease No. 1908/51 Coonamble granted over Portion 57 of Parish of Edgeroi, County of Leichhardt (part of which is now Lot 7300, DP1160173) [ID Area 2088]	[656]
(a) Questions for determination concerning SLG No. 1908/51 Coonamble	[656]
(b) Agreed facts	[657]
(c) Other matters	[658]
The effect of Special Lease No. 1957/6 Nyngan granted over Water Reserve 28,477, Parish of Yhababong, County of Gregory (part of which is now Lot 7002, DP1020588) [ID Area 336]	[659]
(a) Questions for determination concerning for SLG No. 1957/6 Nyngan	[659]
(b) Agreed facts	[660]
(c) Other matters	[661]
Consideration and determination	[662]
(a) Legislation concerning SLGs summarised	[662]
(b) Additional facts concerning SLG No. 1908/51 Coonamble	[671]
A. Original conditions to SLG No. 1908/51 Coonamble	[672]
B. Amended conditions to SLG No. 1908/51 Coonamble	[676]
(c) Additional facts concerning No. SLG 1957/6 Nyngan	[678]
(d) State’s primary submissions summarised	[682]
(e) Applicant’s submissions summarised	[683]
Resolution	[688]
(a) SLG No. 1908/51 Coonamble	[689]
A. Conclusions concerning SLG No. 1908/51 Coonamble	[696]
(b) SLG No. 1957/6 Nyngan	[697]
A. Conclusions concerning SLG No. 1957/6 Nyngan	[701]
SCHEDULE 9 – RESERVATION	[702]
The effect of the reservation of the Canbelego Common	[703]
(a) Question for determination concerning the Canbelego Common	[703]
(b) Agreed facts	[704]
(c) Additional facts	[705]
(d) Other matters	[706]
Consideration and determination	[710]
(a) Legislation concerning commons	[710]
(b) State’s primary submissions summarised	[721]
(c) Primary submissions of applicant and Aboriginal Land Councils summarised	[726]
Resolution	[737]
Conclusion	[745]

GRIFFITHS J:

INTRODUCTION

1. This proceeding concerns nine series of separate questions which arise for determination in the context of an application for the determination of native title under the Native Title Act 1993 (Cth) (NT Act).  That application relates to a relatively large area of land, affecting 26,714 parcels of land, which is located in parts of New South Wales (which are referred to as the Central Division and the Western Division respectively).  The claim is for both exclusive and/or non-exclusive possession. 

2. The parties are in dispute in respect of relatively small parts of the claim area (approximately 1.2 percent of the total claim area and representing about 51 square kilometres at the time the original separate questions were formulated) as to whether any native title rights and interests have been wholly extinguished under either relevant provisions of the NT Act or at common law.  Given the present stage of the native title claim, no determination has yet been made as to the nature and extent of any native title rights and interests in the claim area. 

3. With one exception, the separate questions relate to various types of statutory leases relating to Crown land in the State.  The exception, which is the subject of Sch 9, relates to a reservation relating to a temporary common.  Various Aboriginal Land Councils, including the New South Wales Aboriginal Land Council, were additional active participants in respect of this particular matter. 

4. The applicant in the proceeding is the applicant in the application for the native title determination under s 61 of the NT Act.  The Attorney General of New South Wales is the primary respondent (the State). 

5. As will emerge, the issues which arise for determination in respect of some of the leases are complicated by the fact that one or more extensions were granted to some of the leases and additional conditions were imposed, sometimes reflecting legislative or executive acts which occurred after the original or previous grant or dedication. 

6. It is desirable to say something more about some procedural aspects of the proceeding. 

   Some procedural matters

7. On 28 March 2019, the Court made orders under rule 30.01 of the Federal Court Rules 2011 (Cth) for the hearing and determination of ten separate questions, which were reflected in Schs 1-10 to those orders. The parties were subsequently able to agree all of the subject matter of Sch 10, thus it no longer requires determination. The ambit of Sch 9 was substantially narrowed after the relevant parties reached agreement such that the questions requiring determination in respect of this particular Schedule relate to only one parcel of land. The parties were also able to reduce the number of parcels of land which required determination in some of the other Schedules.

8. As will shortly emerge, the parties provided detailed written contentions and submissions in respect of the remaining separate questions.  In the applicant’s written submissions dated 29 May 2020, the applicant raised a question as to whether the State was seeking to raise matters which did not fall within the terms of the separate questions.  The applicant claimed that the State was seeking to have the separate questions relate not only to the issue of extinguishment of native title under relevant provisions of the NT Act, but also at common law separately and apart from the operation of that legislation. (It may be noted that s 23B(9C) invites, where it applies, consideration of whether native title has been extinguished apart from under the NT Act).  This matter was raised by the Court at the outset of the hearing.  The parties agreed that they would work together to reformulate the present separate questions so that all relevant matters requiring determination were clearly covered by the terms of those questions.  The parties came to an agreement as to the terms of the reformulated separate questions, which are reflected in the questions as described below. 

9. Although the reformulated questions do not explicitly refer to extinguishment of any native title according to principles of common law and independently of the operation of any relevant provision of the NT Act, I understood that they were intended to reflect the parties’ agreement that this separate matter should also be determined so that the parties would have certainty.  As the State pointed out in its written submissions in reply at [7], the question whether a lease has the effect of wholly extinguishing any native title in the leased area “necessarily requires the Court to consider whether the lease conferred rights and interests inconsistent with the native title rights and interests claimed”. 

10. I have proceeded on the basis that determination of the separate questions requires consideration and determination of the issue whether any native title rights and interests have been extinguished by operation of common law principles.  It should be interpolated, however, that neither the State nor the applicant gave much attention to extinguishment at common law.  The central focus of the case was very much on the application of relevant principles arising from the NT Act itself. 

11. On the first day of the hearing the applicant raised an additional and separate issue relating to the ambit of the separate questions as originally formulated.  It relates to the fact that the State’s written submissions addressed an issue which the applicant said was not squarely raised by the terms of the separate questions as originally formulated, namely whether any legislative or executive act which occurred subsequent to the grant or vesting of the relevant lease or dedication meant that exclusive possession was subsequently granted and wholly extinguished native title rights.  The parties subsequently provided revised reformulated separate questions which were made the subject of orders dated 18 August 2020. 

12. The applicant maintained its primary position that, as a matter of law and having regard to the terms of s 23B(2)(c) of the NT Act and the reference therein to an act being a “previous exclusive possession act” (PEPA) if inter alia it consists of the grant or vesting of various specified matters, no consideration should be given to legislative or executive acts after the original grant or vesting of a lease.  In the event that this primary position was not upheld, the applicant’s secondary position involved it responding to the State’s submissions regarding the legal effect of subsequent legislative and executive acts relied upon by the State as having the effect of wholly extinguishing any native title rights and interests. 

13. I will explain in the consideration of Sch 2 why I reject the applicant’s primary position.  In any event the issue is largely academic in the context of the present proceeding having regard to the parties’ ultimate acceptance that the Court was also required to consider extinguishment at common law. 

14. As noted, the reformulated separate questions comprise nine separate schedules (Schs 1-9), each of which deals with the following particular kinds of land tenure:

    ·Sch 1 – Scrub Leases

    ·Sch 2 – Settlement Leases

    ·Sch 3 – Improvement Leases

    ·Sch 4 – Homestead Leases

    ·Sch 5 – 18^th Section Leases

    ·Sch 6 – Western Lands Leases for a Term

    ·Sch 7 – Special Leases for a Term

    ·Sch 8 – Special Leases for Grazing

    ·Sch 9 – Reservations.

15. The Court is asked to determine a series of separate questions with reference to various identified parcels of land in respect of each of the relevant land tenures. 

    Some introductory observations

16. The NSW Crown lands legislation which is relevant to these proceedings is complex and has had many iterations.  The complexity has been heightened by the numerous amendments which have been made to that legislation.  The onerous task faced by the Court in answering the separate questions is further highlighted by the fact that the parties referred to, or relied upon, no less than 117 different pieces of State or Commonwealth primary legislation and no less than 62 pieces of secondary legislation in support of their respective positions. 

17. I will seek to describe the history of the primary NSW Crown lands legislation before addressing each of the separate questions.  I will also provide, by way of introduction, an overview of relevant case law. 

18. Before doing so, however, it is desirable to outline in very general terms the nature of the separate questions for determination.  Putting to one side for the moment the claims concerning extinguishment at common law, the issues of extinguishment by operation of the NT Act essentially relate to the following two matters. First, whether some of the land tenures (i.e. Settlement Leases and some of the Special Leases for a Term and some of the Western Lands Leases for a Term) constitute a “Scheduled interest” within s 23B(2)(c)(i) of the NT Act. Secondly, whether or not all the relevant land tenures conferred “a right of exclusive possession over particular land or waters” within s 23B(2)(c)(viii) of the NT Act. If the answer to either of those questions is yes, the Court is also asked to determine whether the effect of granting the relevant land tenure was to wholly extinguish all native title in relation to the land or waters covered by the tenure, in accordance with s 23E of the NT Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) (NSW NT Act). 

19. As noted above, the Court is also asked to determine whether the relevant tenure was otherwise wholly inconsistent with the continued existence of native title rights and interests under the common law and independently of the NT Act or NSW NT Act (see Western Australia v Brown [2014] HCA 8; 253 CLR 507 (Brown High Court) at [31]). 

    (a) Some primary provisions of the NT Act

20. It is convenient at this point to set out some of the relevant primary provisions of the NT Act commencing with s 23B, which defines what is a PEPA and noting that there are two separate limbs to s 23B(2)(c):

    23B     Previous exclusive possession act

    (1)       This section defines previous exclusive possession act.

    Grant of freehold estates or certain leases etc. on or before 23.12.1996

    (2)       An act is a previous exclusive possession act if:

    (a)it is valid (including because of Division 2 or 2A of Part 2); and

    Note:As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

    (b)       it took place on or before 23 December 1996; and

    (c)       it consists of the grant or vesting of any of the following:

    (i)a Scheduled interest (see section 249C);

    …

    (viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

    …

21. “Scheduled interest” is defined in s 249C of the NT Act. A “Scheduled interest” is anything set out in Sch 1 to the NT Act, other than a mining lease or anything whose grant or vesting is covered by certain specified exceptions in s 23B(9)-(10). That Schedule identifies numerous statutory leasehold interests which the Parliament considered to have conferred a right of exclusive possession and, accordingly, extinguished native title (see ss 23B(2) and 23C). Section 23E of the NT Act (which recognises that a State or Territory law may in the specified circumstances make provision to the same effect as s 23C regarding confirmation of extinguishment of native title by PEPAs attributable to the State or Territory) is set out at [42] below. Section 20(1) of the NSW NT Act (which is a provision as contemplated by s 23E of the NT Act) is set out at [43] below. 

22. With a few exceptions, the parties were agreed that there was no dispute that the relevant land tenures were both valid (for the purposes of s 23B(2)(a)) and took place on or before 23 December 1996 (see s 23B(2)(b)) (which is the date the High Court published its decision in Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 (Wik)). 

    (b) An anachronism or artificiality presented by the separate questions

23. It is desirable at this early stage to highlight a central anachronism and related artificiality which is exposed by the terms of the separate questions.  As has been highlighted, many of the relevant land tenures are of some antiquity.  For example, some were granted under the Crown Lands Act 1889 (NSW) (CL Act 1889) and others were granted under the Crown Lands Consolidation Act 1913 (NSW) (CLC Act 1913). In determining whether the land tenures granted under either of those Acts involved a PEPA for the purposes of s 23B(2)(c)(viii) of the NT Act, it is necessary to determine whether there was an act which involved the grant or vesting of a lease which conferred a right of exclusive possession over particular land or waters. 

24. The anachronism relates to the fact that, at the time all the relevant land tenures were granted, native title rights and interests were not recognised at common law.  This did not occur until the High Court delivered its landmark decision in 1992 in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)). Necessarily therefore, both when the relevant legislation was enacted and the relevant land tenures were granted (or extended), common law native title rights and interests were not recognised. The task of now determining whether or not a particular act is a PEPA with the meaning of s 23B(2)(c)(viii) of the NT Act is therefore a somewhat artificial exercise in the sense that determining whether, for example, a particular lease is a PEPA because it conferred a “right of exclusive possession” over particular land or waters, falls to be determined by reference to times and events when native title rights and interests were not recognised at common law.  This serves to highlight what Professor W E H (Bill) Stanner described in the Boyer Lectures in 1968 entitled “After the Dreaming” as the “great Australian silence”, namely the failure of Federal and State Governments over many years to acknowledge the traditional laws and customs of Aboriginal people. 

25. This “artificiality” was touched upon by Gleeson CJ in Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [12]. There, the then Chief Justice said that, depending on the circumstances, “it may be unlikely in the extreme that either party to [a] lease paid any attention to the subject of native title”. His Honour made clear that the subjective intentions were not relevant in determining whether or not, for example, a grant of an estate in fee simple extinguished native title, because the issue had to be “objectively considered”. Justice Callinan addressed the issue of artificiality in even stronger terms in Anderson at [194] where he reiterated the views he had expressed in Western Australia v Ward [2002] HCA 28; 213 CLR 1:

    … I would reject the notion that has unnecessarily complicated and, if unchecked, will continue to complicate the resolution of claims for native title: the imputation to the parties to pastoral and other leases of an entirely artificial intention, contrary to the known facts, that native title was or was not to subsist. ...

26. The artificiality of the task which presents itself for determination in the present proceeding is highlighted even further by the fact that questions arise for determination before any determination has been made as to whether or not the applicant holds any native title rights and interest in respect of the relevant land.  As Toohey J observed in Wik at 103, this has the consequence of clothing questions for separate determination “with a certain unreality”. His Honour further observed at 131 that, by formulating questions for decision in advance of a trial, an attempt has been made to:

    … reduce to straightforward propositions what are in truth complex issues of law and of fact.  [The questions] look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage.  There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights. 

27. There is another consequence of the antiquity of all the land grants or reservations in the present proceeding which pre-date Mabo (No 2).  Although the parties have gone to considerable lengths (particularly the State, which carries the evidentiary burden), to adduce relevant evidence concerning those tenures, there are unavoidable gaps.  It is not suggested that these gaps reflect upon the diligence or thoroughness of the searches which have been conducted by the various parties into the historical records.  The volume of material which has been provided to the Court testifies to the contrary.  Rather, my point is to emphasise that the task of fact finding is rendered more difficult in a proceeding such as this where relevant events span more than a century and Government and other official record keeping over that period may not be as thorough, or accessible, as is the case with more recent materials. 

    Summary of general principles concerning extinguishment of native title

28. The State accepted that it carried the evidentiary burden of proving the relevant extinguishing acts and any associated issue of whether a particular lease (or reservation/dedication) conferred exclusive possession.  The State submitted, however, that the significance of the burden it carried diminished when it came to the question whether any legislative or executive actions had the effect of extinguishing any native title rights and interests because that was essentially a legal rather than an evidentiary question. 

29. In general terms, the parties were also agreed as to the relevant general principles regarding extinguishment, both under Pt 2, Div 2B of the NT Act and also at common law.  There was no dispute that the NT Act did not exhaustively identify each and every act which might extinguish native title. Section 23B(9C) expressly provides that, where it applies, consideration needs to be given to whether native title has been extinguished “apart from this Act”. Justice Bennett made the following observations in Brown v Western Australia (No 2) [2010] FCA 498 at [58]-[62], (which were adopted by Mansfield J in Brown v Western Australia [2012] FCAFC 154; 208 FCR 505 (Brown Full Court) at [24]):

    The primary judge explained in detail the scope and operation of the NT Act and its interplay with the common law, and its relevance to the facts in the proceeding. I respectfully adopt those observations of her Honour in Brown No 2 at [58]-[62]:

    Part 2 Division 2 of the Native Title Act 1993 (Cth) (the NTA) is concerned with the validation of past acts which, were it not for the NTA, would be invalid. Section 228 defines a “past act” as an act that took place before 1 January 1994 (or 1 July 1993 in the case of legislation) which is invalid, but would have been valid but for native title. Invalidity would have arisen by reason of the Racial Discrimination Act 1975 (Cth) (the RDA). Where an act took place before the commencement of the RDA on 31 October 1975, the act would not have been rendered invalid by reason of the RDA. Hence, it is not a “past act” under s 228 for which it is necessary to have regard to Pt 2 Div 2.

    Pt 2 Div 2 of the NTA provides not only for the validation of past acts but also for the extinguishing effect of those acts. Some past acts extinguish native title (see also ss 229 to 232). Relevantly, Pt 2 Div 2B confirms the extinguishing effect of “previous exclusive possession acts” and “previous non-exclusive possession acts”, which are not confined to “past acts”. If Pt 2 Div 2B of the NTA applies to a particular act, the extinguishment regime of Pt 2 Div 2 is put aside and any overlap between the two extinguishment regimes is resolved in favour of Pt 2 Div 2B and its corresponding State and Territory provisions (State of Western Australia v Ward (2002) 213 CLR 1 at [10]). Accordingly, Pt 2 Div 2B provides the analytical starting point. If an act extinguishes native title under Pt 2 Div 2B, it is unnecessary for the Court otherwise to examine extinguishment under the NTA (ss 23C(3), 23G(3)).

    Nonetheless, acts that do not fall within either category of “previous exclusive possession acts” and “previous non-exclusive possession acts” may still extinguish native title apart from the provisions of Pt 2 Div 2B. The NTA does not constitute a comprehensive code of extinguishment (see, for example s 23B(9C)(a)) and an act to which Pt 2 Divs 2, 2A or 2B of the NTA do not apply may still have been effective to extinguish native title under the common law.

    Where the act is the act of the State of Western Australia and a “previous exclusive possession act” within s 23B of the NTA, it only extinguishes native title if it is also a “relevant act” under s 12I of the TVA [Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)], which is, relevantly, a freehold grant whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996.

    The question of extinguishment is not wholly determined by the characterisation of the relevant grant as conferring exclusive possession. As the applicants point out, the NTA recognises “previous exclusive possession acts” (s 23B) and “previous non-exclusive possession acts” (s 23F). The former wholly extinguish native title (s 23C), the latter generally partially extinguish native title (s 23G). What is described as a “lease” under the NTA may or may not confer a right of exclusive possession (Wilson v Anderson (2002) 213 CLR 401 at [59] per Gaudron, Gummow and Hayne JJ). Pt 2 Div 2B of the NTA expressly declines to provide for extinguishment, under that division, of native title by the grant of a mining lease, whether or not it confers a right of exclusive possession over land (ss 23B(2)(c)(viii), 249C(1)(a)). Further, certain Scheduled interests extinguish native title, without regard to whether, as drafted, they confer exclusive tenure.

1. Before proceeding to summarise other general relevant principles it is important at the outset to emphasise that the issues which fall for determination in the present proceeding cannot be resolved by a “tick the box” exercise.  Although helpful guidance is provided by various authorities, particularly Wik, Ward and Anderson, careful attention needs to be paid to the terms of legislation which is the source of the grant or vesting of a relevant land tenure, as well as the individual terms of any instrument concerning such a tenure. 

2. Each case necessarily turns on its own individual facts, including the relevant terms and conditions of any particular land tenure, the relevant terms of the legislative regime and any relevant preceding legislative history.  There is a grave danger of falling into error if the relevant issues are sought to be resolved simply by “cherry-picking” certain aspects of decided cases and transposing those individual aspects into a different factual and statutory context. 

3. This fundamental point is well illustrated by Anderson. As is the case here, the proceedings there involved the determination of separate questions prior to the determination of the existence or contents of any native title rights and interests in the subject land. Expressed in very general terms, the primary issue was whether a “lease in perpetuity” granted by the Crown under s 23 of the Western Lands Act1901(NSW) conferred on the lessee a right of exclusive possession of the leased land and whether any native title rights were wholly extinguished by the grant of such a lease. Other issues arose concerning the appropriateness of the separate questions and how they should be answered but it is unnecessary to say anything further about that aspect of the case.

4. For present purposes, it is sufficient to focus on the joint reasons of Gaudron, Gummow and Hayne JJ in Anderson and the approach their Honours adopted in concluding that the grant of a “lease in perpetuity” conferred on the lessee “the essence of a freehold” and that the conditions and obligations attached to the grant were not inconsistent with the incidents of a grant of a determinable fee simple. 

5. Their Honours traced the history of the Western Lands Act1901 and associated legislation at [64]-[108].  This highlights the need in some cases to pay close attention to the history of particular legislation in determining whether or not particular land tenures created by such legislation had the effect of wholly extinguishing native title rights and interests.  Their Honours also referred to various leading academic writings on the nature and character of perpetual leases as opposed to a determinable fee simple.  This detailed analysis, coupled with a close examination of the relevant conditions and obligations imposed by the particular lease in perpetuity provided the basis for their Honours’ ultimate conclusions at [109]-[119], which it is desirable to reproduce despite their length (footnotes omitted):

   109The interest conferred under s 23(1)(a) of the Western Lands Act and identified as a “lease in perpetuity” was a creature of statute forming part of the special regime governing Crown land. That regime included the various tenures provided for in the Consolidation Act, some of which also were identified as a “lease in perpetuity”. Legislation establishing these perpetual tenures in New South Wales predated the introduction of the “lease in perpetuity” into the Western Lands Act by the 1932 Act and the 1934 Act.

   110The evident purpose of the introduction to the Western Lands Act of the perpetual tenure already established in other respects in the Consolidation Act was to strengthen the position of settlers in the Western District, particularly by giving them an asset more likely to attract the provision and continuation of finance. The character of the lease in perpetuity derived from that of the tenures established by the earlier legislation in New South Wales.

   111There had been a history in colonial New South Wales of Crown grants of freehold for which no purchase price was paid but with the reservation to the Crown of annual quit‑rents.  Conditions also were imposed, upon pain of cancellation or revocation of the grant and determination of the fee simple.  These conditions included requirements of residence and improvement of the land.  By the time of the development in New South Wales of the legislative system of Crown land tenures in the second half of the 19th century, there was developing the popular perception of freehold as a tenure without risk of forfeiture for breach of tenurial incidents, a perception of which legislators would have been conscious.  Yet it was in the interests of the Crown to achieve the economic and social goals of land settlement with the assistance of the controls imposed by conditional grants.

   112The legislative solution began with the “perpetual” obligations imposed upon the holders of homestead grants by the 1895 Act.  As Sir Joseph Carruthers later was proud to declare, the inspiration for this legislation lay in the old common law notions of tenurial incidents.  The legislative regime was developed with the appearance, in the 1912 Act, of the “lease in perpetuity”.  By this means there was created a tenure which, like freehold tenure, was to last “for ever” but the term “lease” indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents imposed to further the objectives of the legislature with respect to land development.

   113The number and scope of those incidents developed as time passed. The Lease contains a number. Reference already has been made to the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Further, the lessee was obliged by cl 14 not to transfer, convey, assign, sub‑let or mortgage the Leased Land without the written consent of the Minister; cl 20 provided that the Lease was not to be transferable except by way of mortgage for 10 years following its commencement, save to certain members of the armed forces.

   114The Lease stipulated an “unrestricted” right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sched A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. The Lease was also expressed (cl 23(d)) to be subject to the withdrawal of land for any public purpose mentioned in the Consolidation Act. A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the Leased Land to examine improvements (cl 12) and to search for and remove minerals (cl 16). The lessee also was obliged to permit authorised persons to enter for purposes connected with soil conservation and erosion mitigation (cl 22).

   115The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non‑observance of conditions is equivalent to the right of re‑entry on breach of a condition subsequent attached to a determinable fee simple.

   116However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, “all the advantages and essence of a freehold”. Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.

   117The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik.  The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple.

   118The restraints upon alienation which applied to the Leased Land and the requirement to allow entry by certain persons for particular purposes and the other restrictions which we have described were consistent with the attachment of conditions to what in substance was a freehold. Their existence did not deny what otherwise was involved in the comprehensive statutory grant of a “lease in perpetuity”, including the right to exclusive possession.

   119It has been pointed out earlier in these reasons that it is unnecessary to determine whether the “lease in perpetuity” under the Western Lands Act is a “freehold estate” for the purposes of the NTA. The grant here was of a “lease” within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee “the essence of a freehold”, including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B(2)(c) of the NTA. Section 20 of the State Act then mandates extinguishment of any native title, with effect from the grant of the Lease.

6. The approach of Gaudron, Gummow and Hayne JJ in Anderson provides important guidance for the present proceeding.  It highlights how each case needs to be determined not simply by reference to whether or not there are common features with land tenures in other decided cases, but rather by a careful examination of all the relevant conditions and obligations associated with a particular land tenure, as well as the relevant features of related legislation.  In Anderson, the lengthy history of legislation associated with the development of “leases in perpetuity” was also important in their Honours’ analysis and ultimate conclusions.  The history relating to leases was also prominent in Wik, as is reflected in Toohey J’s helpful historical survey at 108 ff of pastoral leases in Queensland (primarily) (see [37] below). That historical survey provides helpful guidance to some of the leases in the present proceeding but that is not to say that every relevant land tenure here has such a rich legislative history.

7. The applicant emphasised the significance of the principle that the exercise of power (either legislative or executive) to extinguish native title must reveal a clear and plain intention to do so (see Mabo (No 2) at 110-111 per Deane and Gaudron JJ, at 138 per Dawson J and at 192-193 per Toohey J).  The application of that principle of construction to many of the relevant legislative and executive actions in the present proceeding is not without inherent difficulty having regard to the anachronism and artificiality referred to at [24] ff above.  As Brennan CJ stated in Wik at 85, a legislative or executive act which creates rights in third parties which are inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, “irrespective of the intention of legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title” (to similar effect, see Ward at [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and Anderson at [4] and [7] per Gleeson CJ).

8. Helpful guidance was provided by Toohey J in Wik concerning the approach to be taken in considering and determining whether or not pastoral leases (in that case) extinguished native title rights.  His Honour’s observations, although pre-dating the 1998 amendments to the NT Act, are also relevant to the task at hand in the present proceeding.  At 108, his Honour said:

   At the heart of the argument in the present case –- that the grant of each pastoral lease extinguished native title rights –- is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights.

   Expressed with that generality, the proposition tends to conceal the nuances that are involved. The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in a grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This second step has within it two elements. The first looks at inconsistency, that is, whether and to what extent native title rights are inconsistent with the exclusive possession which the grant of a pastoral lease is said to carry. The second asks whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease. Because of the answers I propose to the questions asked, this second element does not arise for consideration.

9. Justice Toohey’s judgment in Wik provides further helpful assistance in answering the separate questions in the present proceeding with reference to what his Honour said about the notion of “co-existence” of native title rights and interests and other rights and interests created by legislative or administrative schemes relating to land tenures. As his Honour explained at 126, after referring to Canadian case law, there is an (emphasis added):

   … emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished.  If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned. 

   (a) The 1998 amendments to the NT Act

10. With those introductory observations in mind, I shall now summarise some relevant general principles regarding “previous exclusive possession acts” and “previous non-exclusive possession acts”. 

11. Part 2, Div 2B of the NT Act was introduced in 1998 in response to, and substantially on the basis of, the High Court’s decision in Wik. The primary features of Div 2B were explained in Ward at [8]-[10], [41]-[45] and [135]-[140] and also in Anderson at [44]-[61].

12. In brief, Div 2B characterises certain acts as “previous exclusive possession acts” (see s 23B). A PEPA extinguishes all native title in relation to land or waters covered by the relevant act (see s 23C). The term “extinguish” is defined in s 237A of the NT Act as follows:

    237A   Extinguish

    The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect. 

13. Under s 23E, States and Territories are empowered to legislate so as to replicate the effect of s 23C in respect of PEPAs which are attributable to the State or Territory, as opposed to the Commonwealth. It provides:

    23EConfirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

    If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

14. In the case of New South Wales, s 20 of the NSW NT Act picks up acts which are PEPAs under s 23B of the NT Act that are attributable to that State. Reflecting the terms of s 23C of the NT Act, s 20(1) of the NSW NT Act provides that an act which is a PEPA extinguishes any native title in relation to the land or waters covered by a freehold estate, a Scheduled interest as defined or a relevant lease and that the extinguishment is taken to have happened when the relevant act was done. Section 20(1) of the NSW NT Act provides:

    20Confirmation of extinguishment of native title by previous exclusive possession acts of the State (NTA, secs 23E and 23C)

    (1)Acts other than public works If an act is a previous exclusive possession act under section 23B(2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State:

    (a)the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

    (b)the extinguishment is taken to have happened when the act was done.

    …

15. For an act to be a PEPA, the act must be “valid” and have occurred on or prior to 23 December 1996 (see s 23B(2)(a) and (b) respectively) of the NT Act.  The issue of validity arises in respect of only a few of the acts which are the subject of the separate questions in the present proceedings. 

16. A third and significant requirement for an act to be a PEPA is that it consists of the grant or vesting of an interest which falls within any of eight specified categories set out in s 23B(2)(c). Only two of those eight specified categories are relevant here. The first, which is the subject of s 23B(2)(c)(i), is whether the lease is a “Scheduled interest” as defined in s 249C of the NT Act (which relevantly includes anything set out in Sch 1 of the NT Act, other than a mining lease and certain specified exceptions in s 23B(9)-(10)). The question whether or not a lease is a “Scheduled interest” arises under Schs 2, 6 and 7 of the separate questions, which involve Settlement Leases, Western Lands Leases for a Term and Special Leases for a Term respectively.

17. The second relevant category is whether the leases the subject of the separate questions are leases (other than a mining lease) which confer “a right of exclusive possession over particular land or waters”, as specified in s 23B(2)(c)(viii). For the purposes of the NT Act, the term “lease” is defined in s 242(1) to include a lease enforceable in equity; a contract that contains a statement to the effect that it is a lease; or anything that, before it was created, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease. As the plurality observed in Anderson at [58], this definition is wide enough to encompass statutory interests for the purposes of the NT Act which may not necessarily amount to a lease as understood by the common law. Their Honours further observed at [59] that the scheme of Pt 2, Div 2B of the NT Act is premised upon the fact that a “lease” under that Act may or may not confer a right of exclusive possession. 

18. There is no dispute that the rights conveyed by the grant of a freehold or fee simple interest are wholly inconsistent with the existence of native title and wholly extinguish such rights at common law (see Mabo at 68-70 per Brennan J and at 89-90 per Deane and Gaudron JJ).

    (b) Leases and the extinguishment of native title

19. It is desirable to say something more generally about leases which have the effect of wholly extinguishing native title.  As noted, a lease which confers a right of exclusive possession has that effect.  At common law, that is because a right of exclusive possession conferred on a lessee is inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests. 

20. Native title is also wholly extinguished where a lease confers a right of exclusive possession, by operation of s 23B(2)(c)(viii) of the NT Act.  As Brennan CJ stated in Wik at 84-85 and prior to the 1998 amendments to the NT Act (footnotes omitted):

    …. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

    A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”. Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

    A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. In reference to grants of interests in land by the Governor in Council, I said in Mabo [No 2]:

    “A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title.”

    Third party rights inconsistent with native title can be created by or with the authority of the legislature in exercise of legislative power but, as the power of State and Territory legislatures is now confined by the Racial Discrimination Act 1975 (Cth), a State or Territory law made or executive act done since that Act came into force cannot effect an extinguishment of native title if the law or executive act would not affect the extinguishment of a title acquired otherwise than as native title.

1. Whether or not a lease confers a right of exclusive possession is a matter which is to be “objectively considered” (see Gleeson CJ in Anderson at [12]).

2. The following general principles are established by Ward:

   (1)Whether or not the grant of a tenure to a third party has the effect of wholly extinguishing native title requires identification of, and comparison between, the claimed native title rights and interests and the legal nature and incidents of the grant to the third party.  Subjective intentions are not relevant but are to be determined by an objective inquiry (at [78] and [468]). 

   (2)The relevant inquiry focuses on inconsistency of rights and not inconsistency of use or exercise of rights – while also acknowledging that use of land may suggest or demonstrate the creation of rights (at [215] and [234]). 

   (3)Evidence of how land has been used may be relevant to the extent that it focusses attention upon the right pursuant to which the land is used (at [78]). 

   (4)The object of the inquiry is to identify whether there is any inconsistency between two sets of rights, being rights derived from traditional laws and customs, and rights deriving from the exercise of sovereign authority (at [82] and [177]). 

   (5)In Ward, the rights obtained under a pastoral lease granted under the Land Act1933(WA) (which repealed the Land Act 1898 (WA)) were viewed as being limited and not extinguishing native title rights and interests having regard to the following matters (at [170]-[176]):

   (a)the pastoral lease did not grant to the lessee a right to the soil and the lessee’s right to take timber was limited to such timber as may be required for domestic purposes or the constructions of improvements, such as buildings, fences and stockyards on the land;

   (b)the lessee’s interest was “precarious” because it could be forfeited for non-payment of rent or for non-compliance with terms and conditions and the land could then be reserved, sold or otherwise disposed of under relevant State legislation;

   (c)by s 107 of the Land Act 1898 (WA) the Minister had extensive rights over pastoral leasehold land, including the right to make roads, cut timber and to quarry, as well as to access the land for depasturing horses and cattle and there was a right for any person to pass over the land (if unenclosed or if enclosed but otherwise unimproved) on “all necessary occasions”;

   (d)pastoral leases could be transferred with the Minister’s consent or could be mortgaged, but the lessee had no pre-emptive right to buy the land;

   (e)although the form of pastoral lease used language found in a lease between private parties, this was not determinative, particularly where the language used applied not only to a lease but also to a licence; and

   (f)consideration was also given to various other relevant provisions in State legislation and the Court emphasised at [173] that the significance of any particular provision “must be judged against the whole of the legislative scheme”. 

3. It is well to set out [177]-[185] of Ward which contains the essence of the plurality’s reasons why a pastoral lease granted under the Land Act 1933 did not extinguish native title (footnotes omitted, emphasis in original):

   177.What emerges from this recitation of statutory provisions is that the interest in land which was obtained by the holder of a pastoral lease under the Land Act 1898 or earlier Land Regulations was very different, in many respects, from the interest that a lessee would obtain under a lease for a term of years granted to the lessee by the freehold owner of the land. The differences between a pastoral lease and some archetypal form of “ordinary” or “typical” lease of land are, however, of importance to the present inquiry only to the extent that they assist in considering the question of extinguishment of native title. For the reasons given earlier, that inquiry requires attention to whether the rights given under a pastoral lease are inconsistent with the native title rights and interests which are asserted. As Toohey J said in Wik, at the heart of the argument in that case, and in the present – “that the grant of each pastoral lease extinguished native title rights – is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights”.  But as Toohey J went on to point out, “[e]xpressed with that generality, the proposition tends to conceal the nuances that are involved”.

   178.On no view did a pastoral lease granted under the provisions examined so far, give the holder a right to exclusive possession of the land.  There were extensive reservations permitting entry not only on behalf of the Crown but also by others in many different circumstances and for many different purposes.  It is enough to notice the widest of these, reserving a right to any person “to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another, with or without horses, stock, teams, or other conveyances, on all necessary occasions”.

   179.Of most immediate relevance, for present purposes, is the reservation in each pastoral lease which was issued under the Land Act 1898 or previous Land Regulations and s 106(2) of the Land Act 1933 which applied to pastoral leases issued after 1934. The majority of the Full Court concluded that when that reservation ceased to apply (upon the land being, as the case required, enclosed, improved or both enclosed and improved) native title to that land was wholly extinguished. That conclusion depends upon the premise that, but for the reservation, the holder of a pastoral lease had the right to exclude Aboriginal people from the land.

   180.As was pointed out in Wik, the fact that both the instrument by which a pastoral lease was granted and the legislative instrument pursuant to which it was granted used language that might be used in or in relation to a lease between private individuals does not conclusively demonstrate that the holder of a pastoral lease was granted a right to exclusive possession of the land.  Putting aside, for the moment, the provision about Aboriginal access, the following features may be noticed about the pastoral leases with which we are concerned in this matter:

   (a)Pastoral leases are a creature of statute or regulation, not the common law.

   (b)Pastoral leases were but one of several forms of interest in land for which provision was made by the Acts and Land Regulations, and not all of those interests find close analogy with interests that could be created at common law.

   (c)Although the Acts and Land Regulations provided for both leases and licences as different kinds of interest, various provisions of the Acts and Land Regulations treated leases and licences without distinction as, for example, in provisions dealing with their transfer, their forfeiture and the periodic payment to be made under each as “rent”.

   (d)The holder of a pastoral lease was entitled to use the land only for the limited purposes referred to as “pastoral purposes” and the holder obtained no right to the soil or the timber except to the extent required for certain limited purposes.

   (e)As has been noted earlier, the interest obtained under a pastoral lease was precarious.

   181.Unlike the legislation considered in Wik, no provision was made for the holder of a pastoral lease to bring action for removal of persons in “unlawful occupation” of the land the subject of the pastoral lease.  There were the successive penal provisions prohibiting unlawful or unauthorised use or occupation of Crown lands.

   182.It was not, nor could it be, submitted that these penal provisions should be understood as working an extinguishment of native title.  The provisions were generally applicable to all Crown land, that is, to all waste lands of the Crown, and are not to be understood “as intended to apply in a way which will extinguish or diminish rights under common law native title”.  That is to say, the penal provisions which operated in respect of persons found in the “unlawful or unauthorised use or occupation” of Crown lands did not extend to persons exercising native title rights and interests.  The exercise of native title rights and interests did not constitute an unlawful or unauthorised use or occupation of the land.  Did the grant of a pastoral lease over Crown land prohibit the continued use or occupation of that land, in accordance with native title rights and interests, by the holders of those rights?  Did it make use or occupation of the land by those persons for those purposes “unlawful or unauthorised”?

   183.That would be so only if a pastoral lease gave the holder the right, either absolutely, or contingently upon the taking of certain steps (enclosure, improvement or both), to exclude native title holders from the land.  Pastoral leases granted under the statutes and Land Regulations in issue in these matters did not grant that right.  There are several reasons why that is so.

   184.Chief among those reasons is the recognition of the fact that the exercise of native title rights and interests on Crown lands was not an unlawful or unauthorised use liable to penalty under the penal provisions of the then applicable Land Act or Land Regulations.  The grant of a precarious interest in Crown land, for limited (pastoral) purposes, subject to extensive reservations and exceptions permitting entry on the land in a wide variety of circumstances and, in some circumstances, by anyone, is not to be understood as rendering unlawful what was previously a lawful use of the land by native title holders.

   185.The reservation or statutory provision in favour of Aboriginal people requires no different conclusion.  Neither the reservation nor the later statutory provision is to be read as confining the circumstances in which access to the land by native title holders was to be permitted to the purpose of seeking subsistence in the accustomed manner and prohibiting access in all other circumstances.  Nor is either to be read as suggesting that, despite the great generality of the other reservations in the pastoral lease, and the limitations on the purposes to which the land may be put, the holder was granted a right, in all other circumstances, to exclude not only other citizens but also the grantor of the interest.

4. Ward also establishes some important general principles regarding the effect of reservation of land and whether that extinguishes native title rights and interests.  I will defer consideration of those principles to Sch 9. 

5. In Wik, Gummow J described the content of the expression “exclusive possession” at 194-195 (footnotes omitted):

   ... at common law the term “exclusive possession” is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises. “Exclusive possession” serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord. As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee. 

6. In Brown High Court, the plurality (French CJ, Hayne, Kiefel, Gageler and Keane JJ) at [33]-[35] emphasised that, in addressing the issue of inconsistency of rights and extinguishment at common law, a comparison is made between the rights and interests at the time of, and by reference to, the actual grant of those rights and not by the potential exercise of the rights and/or interests granted.  Their Honours then explained at [36]-[38] (footnotes omitted):

   36It is important to recognise that particular considerations apply to the identification of native title rights and interests.  In examining the “intersection of traditional laws and customs with the common law” (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs.  It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one‑dimensional view of property as control over access”.  Yet it is no less important to recognise that, as Fejo v Northern Territory made clear, a right of exclusive possession affords the holder the right to “use the land as he or she sees fit and [to] exclude any and everyone from access to the land” (emphasis added).  The grant of a right to exclude any and everyone from access to the land for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land but also of any right which depends upon access to the land.

   Determining inconsistency

   37The determination of whether two or more rights are inconsistent is also an objective inquiry.  The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights.  And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant.  At that time, were the rights as granted inconsistent with the relevant native title rights and interests?  As these reasons will later demonstrate, to the extent to which the decision in De Rose [No 2] countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted), it is wrong and should not be followed.  In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases.  What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important only to the extent to which it directs attention to the nature and content of the rights which were granted.

   38There cannot be “degrees of inconsistency of rights”.  “Two rights are inconsistent or they are not.  If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.”  As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where “the existence of one right necessarily implies the non‑existence of the other”.  And one right necessarily implies the non‑existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.

7. The plurality in Brown High Court confirmed at [55] that both Wik and Ward established that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if unaccompanied by the grant of a right to exclude anyone from the land for any reason or no reason, is not necessarily inconsistent with and does not necessarily extinguish native title rights and interests such as rights to camp, hunt and gather, conduct ceremonies on land and care for land. 

8. In Brown High Court, the plurality concluded that the mineral leases in issue in that case did not give the mining joint venturers a right of exclusive possession.  Their Honours said at [57]:

   … In this respect, the mineral leases were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward.  The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason.  The joint venturers were given more limited rights:  to carry out mining and associated works anywhere on the land without interference by others.  Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land.  (No party submitted that any distinction should be drawn between the several native title rights and interests that were claimed.)  That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases.  On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers.  That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests.

9. The importance of paying close attention to the rights conferred by the instrument which are said to be inconsistent with native title rights and interests is emphasised by the plurality in Brown High Court at [63], where the Court responded to the State’s argument that the mineral leases in that case gave the mining joint venturers the right to mine anywhere on the land and the right to build improvements anywhere on the land.  Their Honours rejected that this was determinative:

   … But the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works.  Had the mineral leases provided that the whole of the land must be used in a way which would not permit any use of the land by native title holders, it may have been open to construe the mineral leases as providing for the joint venturers to exclude any and everyone from the whole of the land for any reason or no reason.  But, as has been explained, that is not what these mineral leases provided. 

10. Even if the grant of a right does not in its original terms extinguish native title rights and interests, a subsequent modification of those rights during the term of the grant may do so, such as where amending legislation comes into force during the term of the grant. Under s 226 of the NT Act, an “act” is defined to include the making, amendment or repeal of legislation and the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument (see the discussion in Ward at [265]-[267]).

    (c) Some general observations

11. As was the case in both Wik and Ward, in the present proceeding no determination has yet been made as to the content of the native title rights and interests which are the subject of the application for a native title determination under s 61 filed on 14 March 2012. The claimed native title rights and interests are described in Sch E to that application.

12. Cases such as Wik and Ward demonstrate that, in determining the question of inconsistency, it is sufficient to focus on the native title rights and interests which are claimed in a particular application for determination of native title (see also Brown High Court at [55]).  Relevantly, the claimed native title rights and interests in the present proceeding include a claim of exclusive possession (so far as possible) and, where exclusive possession cannot be recognised, various rights such as the right to hunt, fish, gather and use natural resources, the right to protect the land and use and enjoyment of the claim area. 

13. It is uncontroversial that native title rights and interests may be exclusive or non-exclusive rights.  Examples of non-exclusive rights are rights to access and camp on land, to take flora, fauna, fish, water and other traditional resources other than minerals from the land, to engage in traditions and ceremony on the land and to care for, maintain and protect from physical harm particular sights and areas of significance to the native title holders (see Brown High Court at [2]). 

1. Section 39 of the CL Act 1889 substantially replicated s 101 of the CL Act 1884. 

2. By reason of notification under either s 101 of the CL Act 1884 or s 39 of the CL Act 1889, land the subject of such notification was set aside as a “common” and became a “common” within the meaning of s 3 of the Commons Regulation Act 1898.  “Common” was defined there as including:

   … any portion of land which, at the time of the passing of the Commons Regulation Act of 1873, had been by any instrument under the hand of the Governor, whether with or without the advice of the Executive Council, allotted as a common for the use of the inhabitants of the towns, or the cultivators and small farmers in the district or locality in which such common is situated, and any common, whether permanent, temporary, or for pasturage, heretofore or hereafter granted, notified, reserved or dedicated by the Governor.

3. The State contended that by being setting aside as a “common” within the meaning of s 3, the relevant land became a “common” within the meaning of that concept under the common law. 

4. “Commoner” was defined in s 3 to mean any person whose name was in the Commoners’ Roll. 

5. Under s 10 of the Commons Regulation Act 1898, provision was made for the appointment of the first trustees of any “common”, who thereafter were elected at a general meeting of commoners (s 6). 

6. By operation of that legislation, trustees appointed from time to time in respect of the relevant parcel near Canbelego were:

   (a)a body corporate under the name “Trustees of Canbelego Common”, and under that name the trustees had perpetual succession and were capable of holding such common in perpetuity upon the trusts and for the uses declared in, relevantly, the reservation (s 4);

   (b)required to keep a roll of the persons entitled to use the common in accordance with the grant, notification, reservation or dedication of the common or in accordance with any proclamation or other declaration relating to such common (s 5);

   (c)empowered to declare the number and description of cattle and other stock which commoners were entitled to depasture upon the common or portions of it (s 13);

   (d)required to expend money received by them under the legislation on improvement of the common.  Section 14 provided that the trustees “shall expend in and about the improving of the said common or otherwise in relation thereto all sums of money received by them for trespass or otherwise under this Act”;

   (e)empowered to make and enforce rules and regulations for the better and more convenient and equal use of the common by the persons named in the Commoners’ Roll (s 15);

   (f)empowered to distrain or impound cattle or other stock found depasturing upon the common which belonged to any person not named in the Commoners’ Roll and recover damages as claimed by the owner or occupant of any private lands in respect of such trespass and damage (s 17); and

   (g)empowered to receive charges, as prescribed by regulations under the Commons Regulation Act 1898, from carriers, teamsters, travellers or drovers depasturing animals on the common (s 24). 

7. It should be noted that under s 23 of the Commons Regulation Act 1898, the Minister was empowered to grant licences to take soil, stone or minerals or to remove timber from a common.  As Mr Waters acknowledged in oral address, while this feature of the legislation may not be determinative, it is a factor to be taken into account in determining whether or not the trustees or commoners had a right of exclusive possession. 

8. It is also appropriate to note the following relevant provisions of the Commons Management Act 1989, which commenced on 1 September 1991:

   (a)Relevant preceding legislation, as well as rules or regulations made by trustees under the Commons Regulation Act 1898 were repealed, but saving provisions applied in respect of existing Commoners’ Rolls, bodies corporate and trustees (see ss 4(3) and 64 and Sch 5).

   (b)Section 3 relevantly defined a “common” as including a parcel of land which, on or before 1 February 1909, had by any instrument made by the Governor, been set aside as a common for the use of inhabitants of any specified locality or the cultivators or famers of any locality in which the parcel of land was situated, other than where the reservation or dedication had been revoked or otherwise terminated.

   (c)“Commoner” was defined as meaning a person whose name is entered on the relevant Commoners’ Roll (s 3). 

   (d)As noted, provision was made for the continuation of existing trusts under the former Act (s 4(3)). 

   (e)Under s 14, trusts were declared to have an estate in fee simple in the common for which it is established, unless it already had such an estate by virtue of another enactment or instrument.

   (f)Trusts were empowered, with Ministerial consent, to enter into transactions, with certain exceptions relating to a common in the Western Division of the State (ss 16 and 17).  Relevantly, a “transaction” in relation to land was defined in s 3 as “any transaction which creates, transfers, charges, encumbers, varies or extinguishes an estate or interest in land, and includes a transfer, a conveyance, a lease, a mortgage, a covenant and a grant of a licence, and also includes a grant or reservation of an easement or other incorporeal hereditament”.

   (g)On transfer of land by a trust, the land vested in the transferee free from all trusts, ceased to be set aside as a common and was freed from any leases or licences (ss 18 and 23(1)).

   (h)Trusts were empowered to make by-laws with respect to, among other things, care control and management of the common and the rights of commoners with respect to the use of the common (ss 9(1)(a) and (b)).

   (i)There was provision for the creation, adoption and cancellation of management plans for commons (ss 25-28).

   (j)Members of a trust board, members of a local authority managing a trust’s affairs or authorised employees of the trust or local authority were empowered to remove: persons on the common who were not authorised to be there; persons contravening a provision of the Act or a by-law; or persons who by disorderly conduct were annoying or causing inconvenience to commoners or persons lawfully using the common (s 56). 

9. Mr Waters acknowledged in oral address that the Commons Management Act 1989 re-enacted many of the same principles as were established in the Commons Regulation Act 1898. 

10. The terms of s 14 of the Commons Management Act 1989 should be noted. They were relied upon by the State in support of its submission that the acts done in relation to the relevant parcel constituted the grant or vesting of a freehold estate in the relevant parcel. Section 14 of the Commons Management Act 1989 provided:

    Trust to have a fee simple estate in the common for which it is established

    (1)For the purposes of this Act, a trust has, by virtue of this subsection, an estate in fee simple in the common for which it is established, unless it already has such an estate by virtue of some other enactment or instrument.

    (2)If the setting aside of a common is revoked or otherwise terminated as to part of the common, the trust ceases to have an estate in fee simple in that part.

    (b) State’s primary submissions summarised

11. In brief, in addition to adopting its general submissions on matters of principle as summarised in the Introduction, the State submitted that the reservation of the parcel on 23 April 1904 and the subsequent appointments of trustees committed the relevant parcel to the public purpose of temporary common.  It further submitted that upon such reservation and appointment, rights and interests in the parcel were vested in the trustees and Canbelego Common Trust, which expressly and by necessary implication conferred on the trustees’ rights of exclusive possession and were inconsistent with the existence of native title. 

12. The State emphasised that trustees of temporary commons have considerable power under the Commons Regulation Act 1898, citing Sullivan v Horsley (1914) 14 SR (NSW) 431 at 435.

13. The State submitted that powers and duties of trustees presupposed possession of the relevant land and, while acknowledging that, in the case of a temporary commons, the right of possession would come to an end on the revocation of the reservation or dedication of the land as a common, the State submitted that, until this occurred, the right of possession was indistinguishable from possession as ordinarily understood in law. 

14. The State’s position on exclusive possession and consequential extinguishment in respect of the reservation of land for a temporary common relied on both s 23B(2)(c)(ii) and 23B(3) of the NT Act, as well as principles at common law. Section 23B(2)(c)(ii) states that an act will be a PEPA if it consists of the “grant or vesting” of a “freehold estate” (provided it meets the other necessary requirements under s 23B). The State submitted that even if the Court were to find that there was no “grant or vesting” within the meaning of s 23B(2)(c)(ii), the State contended that any native title rights or interests in the land reserved as common were wholly extinguished at common law.

15. The State contended that the reservation in respect of the common here had “all the markers that were apparent in the reservations in Ward that were seen as, in effect, conveying exclusive possession and extinguishing native title in contrast to mere reservations and reservations which were simply setting aside land or forbidding its sale or lease”.  This was because the reservation here went further than simply reserving the land from being sold or leased.  It established a specific usage, in a particular way, under a statutory scheme related to commons.  The State submitted that it was a necessary consequence of the relevant legislation that any native title rights and interests were extinguished. 

    (c) Primary submissions of applicant and Aboriginal Land Councils summarised

16. The applicant submitted that, in the early days of the colony, the most usual form of common was for pasturage, noting that “rights of common” were inherited from the position in England where land was set aside for “common use” and was considered a profit a prendre, exercisable in common with others.  Commons were used early in the colony to ensure a reliable body of grazing land. 

17. The applicant pointed out that the Gazette Notice published on 23 April 1904 in respect of the relevant parcel stated that the land was reserved from sale “pending determination of the portion to be set apart for temporary common for the use of the residents of Canbelego, and reserved and exempted from licence and lease generally, and is hereby reserved and exempted accordingly”. 

18. The applicant then made three primary submissions.  First, it contended that native title was not extinguished simply by the reservation of lands, without more. 

19. Secondly, and alternatively, it submitted that commoners’ rights under the Commons Regulation Act 1898 were limited, essentially to that of pasturage.  It emphasised that a commoner only had rights in relation to the common if his or her name was on the Commoners’ Roll.  When that occurred, the commoner had a right to the common for the purpose of pasturage of stock (including access to water) and to take fallen timber or underwood from the common with the trustees’ permission.  It submitted that these rights could not have extinguished all or any native title. 

20. Thirdly, the applicant submitted that the trustees’ powers were also relatively limited, as was reflected, for example, in s 13 which gave the trustees power to declare the number and description of stock which would be allowed on the land by commoners.  That power was not only quite narrow in its ambit, the applicant also contended that it was not an absolute power because when an aggrieved person had a right of appeal to a Court of Petty Sessions, which Court could override the trustees’ decision. 

21. As to the State’s reliance of s 14 of the Commons Regulation Act 1898, the applicant submitted that the provision did not confer a power upon trustees to bring an action in trespass.  Rather, it was a provision which directed how to deal with monies received, including for “trespasses or otherwise under the Act”.  It submitted that the words “under this Act” governed both trespasses or otherwise.  The only provision in the Act dealing with trespasses was s 17, which was directed to trespasses by stock.  The applicant submitted that it is this trespass which is the subject of s 14. 

22. The applicant contended that, as was the case with pastoral leases, native title rights and interests, other than the right to control access, could clearly co-exist with a commoner’s right to pasture their stock. 

23. As to the State’s reliance on an analogy with Ward, the applicant emphasised that that case dealt with two separate types of reserves.  The first type was a reserve created simply by reservation for public purposes, while the second type was a reserve resulting from the vesting of land in trustees.  The High Court held that the first type of reservation did not extinguish all native title, even though it clearly extinguished a right to control access.  The High Court regarded the second kind of reserve (i.e. by vesting) as the equivalent to the vesting of a fee simple.  The applicant submitted that a temporary reservation of land for a common so as to allow commoners to depasture their stock did not mean that the land reserved could not lawfully be used for other purposes, relying on what was said in Ward at [221].

24. The submissions of the Aboriginal Land Councils in respect of this parcel were primarily directed to the effect of s 14 of the Commons Management Act 1989 (see [718(e)] above).  They relied upon cases such Boggabri for the proposition that this provision (as was also the case with s 37X of the CLC Act 1913 and s 100(1) of the CL Act 1989 (NSW)) merely created a statutory fiction of the existence of a fee simple and did not affect the real or underlying title to common land.  They submitted that the effect of s 14 was not actually to vest the land in the Canbelego Common in trustees.  In support of that submission, they pointed to the fact that at all relevant times the State was recorded as the registered proprietor for the parcel of land and not in anyone else (including the trustees). 

25. The applicant clarified in oral address that it no longer pressed the issue whether the relevant parcel was in fact a common. Nor was it disputed that the parcel was reserved as a temporary common under s 101 of the CL Act 1884 and s 39 of the CL Act 1889. 

26. In the course of the hearing, the State clarified that it did not contest the position of the Aboriginal Land Councils regarding the meaning and effect of s 14 of the Commons Management Act 1989.  Mr Waters said that he withdrew [70] of the State’s written submissions in reply and accepted that s 14 operated “to transfer an estate for the purposes of the Act in terms of the language of the Act”.  This is consistent with the position of the Aboriginal Land Councils.  But the State otherwise relied upon its other submissions that the effect of the reservation was to create a right of exclusive possession, with particular reference to the earlier legislation.  Accordingly, the Court was not asked to determine the correctness of Boggabri or, as discussed in that case, the meaning and effect of s 14 for the purpose of the present proceeding. 

    Resolution

27. For the following reasons, I reject the State’s position that the reservation of the relevant parcel of land as a temporary common, the appointment of trustees and/or the operation of any legislation which applied to the land created a right of exclusive possession in either the trustees or commoners who were entitled to depasture their stock on the common.  These incidents did not wholly extinguish any native title rights and interests in the land. 

28. First, while it may be accepted that the parcel of land so reserved vested in the trustees under s 4 of the Commons Regulation Act 1898 (for the purposes of that Act), that falls far short of conferring upon the trustees a right of exclusive possession.  The powers and obligations of trustees were essentially limited to managing the activities of enrolled commoners and preventing other persons from depasturing their stock on the common. 

29. Secondly, I accept the applicant’s submission that s 14 of the Commons Regulation Act 1898 does not support the State’s contention that the reservation involved a grant of exclusive possession.  That provision obliged the trustees of every common to use all sums of money received by them for trespass or otherwise under the Act to improve the common.  Properly construed, this provision did not empower trustees to bring actions for trespass at large so as, for example, to prevent non-commoners from accessing and using the land for purposes other than depasturing stock, such as personal recreation.  The provision speaks of money received by trustees “for trespass or otherwise under this Act”.  The reference to “under this Act” is important.  It refers in part to actions for trespass brought by trustees in respect of the unauthorised depasturing of stock as provided in s 17.  The words “under this Act” are important words of limitation, which govern money received by trustees in respect of prosecutions brought under s 17 or money obtained as a result of some other provision of the Act. 

30. Thirdly, and significantly, trustees were empowered to hold the reserved land for the purposes of the Act and not for any other purpose.  The State pointed to no source of power which authorised trustees to exclude anyone and everyone from the land apart from their limited rights under provisions such as s 17.  In other words, the trustees’ power to control access was quite limited and was directed to particular classes of person.  This limited power of control co-existed with any relevant native title rights and interests in the land.  The trustees had no power to exclude any Aboriginal person exercising native title rights and interests apart from the limited powers of control conferred by the Act. 

31. Fourthly, having regard to the limited rights of commoners who were entitled to use the land, it is plain that they did not have any right of exclusive possession.  Their rights were limited in effect to depasturing their stock on the land where they were entitled to do so.  The legislation prevented persons who were not on the Commoners’ Roll from depasturing their stock on the common (apart from drovers and the like whose rights to use the common even though they were not commoners were provided for in s 24).  However, it imposed no limits on the rights of the public to use the common for purposes other than depasturing stock, as is the case with other Crown land where there has been found to be no grant of a right of exclusive possession. 

32. Fifthly, as to the State’s reliance on Ward, I accept the applicant’s response as summarised at [733] above.

33. Sixthly, the State’s reliance on ss 23B(2)(c)(ii) and s 23B(c) of the NT Act is in my view misplaced. The reserved land cannot correctly be described “freehold estate”. Moreover, as the Aboriginal Land Council’s correctly pointed out, at all times the State (and not the trustees) was recorded as the registered proprietor for the parcel of land the subject of the reservation.   

34. Finally, I am not satisfied that any native title rights and interests in the land were wholly extinguished by operation of common law principles, separately from the issue of whether exclusive possession existed within the meaning of s 23B of the NT Act. As previously mentioned, the State scarcely developed this alternative contention.  

    Conclusion

35. For all these reasons, questions relating to the Canbelego Common as set out at [703] above are answered as follows:

    Question (a) – No.

    Question (b) – No.

    Question (c) – No.

I certify that the preceding seven hundred and forty-five (745) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.

Associate:

Dated:       5 March 2021

SCHEDULE OF PARTIES

NSD 38 of 2019

Second Applicant	GRACE GORDON
Third Applicant	PETER WILLIAMS
Fourth Applicant	JOHN SHIPP
Fifth Applicant	NEVILLE MERRITT
Sixth Applicant	DANIELLE FLAKELER-CARNEY
Seventh Applicant	JASON FORD
Eighth Applicant	HILARY WILLIAMS
Ninth Applicant	DAVID CLARKE
Tenth Applicant	PHILLIP SULLIVAN
Second Respondent	COMMONWEALTH OF AUSTRALIA
Third Respondent	BOGAN SHIRE COUNCIL
Fourth Respondent	BREWARRINA LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent	COBAR LOCAL ABORIGINAL LAND COUNCIL
Sixth Respondent	CONDOBOLIN LOCAL ABORIGINAL LAND COUNCIL
Seventh Respondent	COONAMBLE LOCAL ABORIGINAL LAND COUNCIL
Eighth Respondent	GILGANDRA LOCAL ABORIGINAL LAND COUNCIL
Ninth Respondent	GRIFFITH LOCAL ABORIGINAL LAND COUNCIL
Tenth Respondent	MURRIN BRIDGE LOCAL ABORIGINAL LAND COUNCIL
Eleventh Respondent	NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Twelfth Respondent	NORTH WEST LAND CORPORATION ACN 163 612 351
Thirteenth Respondent	NTSCORP LIMITED
Fourteenth Respondent	NULLA NULLA LOCAL ABORIGINAL LAND COUNCIL
Fifteenth Respondent	NYNGAN LOCAL ABORIGINAL LAND COUNCIL
Sixteenth Respondent	WALGETT LOCAL ABORIGINAL LAND COUNCIL
Seventeenth Respondent	WARREN MACQUARIE LOCAL ABORIGINAL LAND COUNCIL
Eighteenth Respondent	WEILWAN LOCAL ABORIGINAL LAND COUNCIL
Nineteenth Respondent	A.H. WISE PASTORAL CO PTY LIMITED
Twentieth Respondent	BREWARRINA CLAY TARGET CLUB INC
Twenty First Respondent	JOHN BRYAN CHARLES EGAN
Twenty Second Respondent	SHIRLEY VIDA GEORGE
Twenty Third Respondent	GAVIN GEOFFREY GREEN
Twenty Fourth Respondent	HE KATER AND SON PASTORAL CO PTY LTD
Twenty Fifth Respondent	M M WOODLOCK PTY LIMITED
Twenty Sixth Respondent	FRANK JOHN MCKILLOP
Twenty Seventh Respondent	MOUNT FOSTER PTY LIMITED
Twenty Eighth Respondent	PETER WILLIAM PEARCE
Twenty Ninth Respondent	RUSSELL BRUCE ORIEL AND JANICE MARGARET ORIEL
Thirtieth Respondent	CHRISTOPHER JOHN STANMORE
Thirty First Respondent	T.L. AND A.L. FISHPOOL
Thirty Second Respondent	WARRIE GRAZING PTY LIMITED
Thirty Third Respondent	WAYNE JOHN WHILLOCK
Thirty Fourth Respondent	RICHARD JOHN WOODLOCK
Thirty Fifth Respondent	VIRGINIA ANNE WOODLOCK
Thirty Sixth Respondent	WYNDERBRI PTY LTD
Thirty Seventh Respondent	ACTWAY PTY LTD
Thirty Eighth Respondent	COBAR MANAGEMENT PTY LTD
Thirty Ninth Respondent	COBAR OPERATIONS PTY LTD
Fortieth Respondent	ISOKIND PTY LTD
Forty First Respondent	PEAK GOLD MINES PTY LIMITED
Forty Second Respondent	TRIAKO RESOURCES PTY LTD
Forty Third Respondent	TRITTON RESOURCES PTY LTD
Forty Fourth Respondent	AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR RFM RIVERBANK
Forty Fifth Respondent	CARTOBA PTY LIMITED
Forty Sixth Respondent	MALCOLM STANLEY HENWOOD
Forty Seventh Respondent	KILFENORA PASTORAL CO PTY LIMITED
Forty Eighth Respondent	PETER ARCHIBALD LAIRD
Forty Ninth Respondent	KENNETH JOHN MAYMAN
Fiftieth Respondent	CHRISTOPHER GERARD NOONAN
Fifty First Respondent	THE ROTO PASTORAL COMPANY PTY LTD
Fifty Second Respondent	TELSTRA CORPORATION LIMITED
Fifty Third Respondent	BOBADAH PUBLIC HALL TRUST