Pareroultja & Ors v Tickner

[1994] HCATrans 269

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~ ----~, •• !'l:m!!II

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S156 of 1993

B e t w e e n -

JANICE PAREROULTJA, DULCIE

JUKKADAI, ELFREIDA UNGWANAKA

and MAGDELINE UNGWANAKA

Applicants

and

ROBERT TICKNER

First Respondent

and

KUNMANARA BREADEN and MAX

STUART

Second Respondents

Application for special leave

to appeal

MASON CJ
BRENNAN J

Pareroultja(2) 1 12/4/94

DEANE J
DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 APRIL 1994, AT 10.22 AM

Copyright in the High Court of Australia

MR A.J. SULLIVAN 9c:  May it ~lease the Court, I appear for

the applicants in this matter with my learned

friends, MR C.R. McDONALD and MS H.L. DELANEY.

(instructed by James Noonan)

MR I.M. BARKER, QC: If the Court pleases, I appear for the

first respondent with my learned friends,

MR E. WILLHEIM and MR L.S. KATZ. (instructed by

the Australian Government Solicitor)

MR A.R. CASTAN QC: If the Court pleases, I appear for the

second respondents with my learned friend,

MR T.F. ROBERTSON. (instructed by D. Avery,

Solicitor for Central Land Council)

MASON CJ: Yes. Mr Sullivan.

MR SULLIVAN:  As Your Honours will be aware, this

application for special leave today comes before a

Full Bench pursuant to a direction at the special leave application, heard before Your Honours

Justices Brennan, Deane and Gaudron on 11 February

1994.      Your Honours, we have taken the opportunity

of presenting, as directed, comprehensive written

submissions in this case, and we proposed, really,

to work through those and appreciating in saying
that that Your Honours are well familiar with much

of the material we have put in there about the Land

Rights Act, for instance. However, we think it

would be appropriate to remind Your Honours of some

of that material given that, in our respectful
submission, a re-look at that material is

necessary, given the change of climate since

Your Honours last considered the Land Rights Act,

and change of climate which I am referring to, of

course, is this Court's decision in Mabo (No 2),
and the subsequent enactment of the Native Titles

Act.

As we have set out in our written submissions,

we have four principal submissions to put to the	Court and they can be summarized very briefly as	these: first, that upon its true or proper
construction - and these are set out, I should say, at page 2 of our written submissions - the Land Rights Act does not apply to land in respect of
which there is valid and subsisting common law
native title. In other words, that where there is
such title the Land Rights Act does not operate so as to permit a grant of a land to be made to a land
trust.
A second, and it is a true alternative, is that, if we are wrong on that submission, none the
less, the relevant, what we have lumped together
and called, the granting and management provisions
of the Land Rights Act, fall foul of section 10(3)

Pareroultja(2) 2 12/4/94

of the Racial Discrimination Act and, for that

reason, they are, to use the words of this Court in

Mabo (No 1) and Mabo (No 2), relevantly overridden

to the extent that they fall within the ambit of

section 10(3) and, by reason of 10(3), within

section 10(1).

Our third submission, again it is a true

alternative, is that the granting provisions of the

Land Rights Act fall directly within 10(1) itself,

of the Racial Discrimination Act, and we submit

that the Land Rights Act is not, now at least, a

special measure to so be protected.

Our fourth submission, and one which we hasten

to add, was not argued before the Federal Court
because it was impossible to do so, is based on the
Native Title Act. Our submission in respect to the

Native Title Act may be summarized in this way,

that that Act effectively gives to common law

native title holders a choice; a choice between whether that native title is held by themselves

directly or whether it is held for them on trust by

a prescribed corporation.

McHUGH J: Is there not some problem about arguing this

fourth point, when the Native Title Act is under

constitutional challenge?

MR SULLIVAN:  Your Honour, we are aware that the

Native Title Act is under constitutional-challenge,

and we have not, unfortunately, been able to see a

copy of the statement of claim. I understand the

matter was in for directions this morning before

this Court. In our respectful submission, whilst

it may be that Your Honours would prefer to reserve

your decision on the argument in this case on the

Native Title Act until after that challenge was

heard by the Court, it would be inconvenient in the
extreme for the parties, and an undue waste of

money, time - both the Court's time and everyone

else's time - if this argument had to be hived off,

so to speak, and heard some time in the future

after the argument which Your Honour refers to has

been determined by this Court.

In our respectful submission, everyone present

at the bar table submits the Native Title Act is a

valid Act.	Indeed, we all seek to rely on it in
various ways.

McHUGH J: That is the problem, there is no contradictor.

MR SULLIVAN:  We appreciate that, Your Honour. We gave

section 78B notices on one aspect of the argument

about the Native Title Act, and they have been met

by a deafening silence. But we really respectfully

Pareroultja(2) 3 12/4/94

submit that we should not be precluded at this

stage, or even postponed at this stage, in putting

an argument based on the Native Title Act. Indeed,

a further complication arises if that course - - -

MASON CJ:  You are not precluded. The only suggestion is

that that part of the case would stand over.

MR SULLIVAN:  Yes, Your Honour, I appreciate that and that

is why I said secondly "or postponed". A further

problem, however, that arises there, Your Honour,

is this, that my learned friends for the second

respondents are contending effectively in their

written submissions that all of our arguments are

moot by reason of the Native Title Act. They

assert that since the Native Title Act came into

being, that everything we say is a waste of time.

Obviously we beg to differ with that. But if they

are to maintain that stance, as I suspect they

will, then the corollary of Your Honour's tentative

view would be that the whole case would have to

stand over.

McHUGH J: Not unless there is no substance in your first

three submissions, or any of them for that matter.

MR SULLIVAN:  Yes, Your Honour, that is, with respect, true.

But we would respectfully submit that we are here, it is an important point, and we would respectfully

submit that the Court should presume that the

legislation is valid, and that is certainly the

assumption upon which the parties are here.

BRENNAN J: But does it not come to this, that if you failed

on your first three points, your fourth point would

then be that native title as dealt with and defined

by the Native Title Act so operated as to preclude
the lawful granting of an estate in fee simple

under the Northern Territory Land Rights Act?

MR SULLIVAN:  Yes, Your Honour.

BRENNAN J: Would that not involve an interpretation of the

meaning of "native title" as defined by the Native

Title Act?

MR SULLIVAN:  Yes, Your Honour.

BRENNAN J: Would that not be the key issue upon which the

question of constitutional validity might depend?

MR SULLIVAN:  Your Honour, it may be the key issue. As I

understand, one of the issues which is in debate in
the constitutional challenge is the definition of
native title and, if you like, the ambulatory

operation which the Native Title Act gives to that

provision. Of course we are - and we appreciate

Pareroultja(2) 4 12/4/94

the force of potential argument but, in our
respectful submission, whilst that may be a matter

for the Court on~ future occasion, presently,

?ecause of the guidance Your Honours have given us

in Mabo (No 2) we do know what native title is at

the present. Although the definition of native

title is ambulatory in the Native Title Act there

has been no movement, if you like, since

Mabo (No 2) and one can address this question and

address this case in the light of an established

meaning of native title as in Mabo (No 2).

We do not know the precise arguments which are

going to be raised on a constitutional point about

that matter but, in our respectful submission, we

should be permitted, as I say at this stage, to run

that point in anticipation that Your Honours will

uphold the validity of the legislation and on the

presumption that legislation is valid in relevant

respects.

TOOHEY J: It may not be enough, Mr Sullivan, for there to

be common ground as to the validity of the Native

Title Act. Real questions might arise as to what

the Act means. Now is there common ground between

the parties on that aspect of it?

MR SULLIVAN: There probably is not common ground,

Your Honour, about what the Act means, but we are

all here fully equipped to argue our competing

versions of what the Act means and, in our

respectful submission, that is sufficient because
Your Honours will have the benefit of argument on

all sides about what the relevant provisions of the

Native Title Act means in this case.

TOOHEY J:  Of course it may prove to be the case that a

particular view of the Native Title Act has some

bearing as to its validity.

MR SULLIVAN:  Your Honour, it may but, if anything, that

would be of assistance not only to the Court in	this case if those views were now expanded upon,
but also may be of assistance to the Court in the
proposed constitutional challenge because if
Your Honours were to form a view as a result of
this case of meanings of key provisions of the
Native Title Act, when they have been fully argued
before Your Honours, that may well be of assistance in the subsequent case.

In our respectful submission, for those

reasons, we should be entitled to run this point at

this stage. We note that at the adjourned - if I

might use that expre.ssion - special leave

application a challenge was foreshadowed by the

Commonwealth as to whether the Court has

Pareroultja(2) 12/4/94

jurisdiction to hear this matter - the Native Title

Act point - but their latest written submissions

seem to indicate that that point is not being run,
but rather they are asking the Court not to hear

the point in the exercise of a discretion.

So, some of the submissions which we put out

in our written submissions tempting Your Honours

or seeking to tempt Your Honours, into a view th~t

Your Honours clearly had power to hear this matter,

notwithstanding that it was not argued below, and

that the legislation came into effect after the

decision below, will no longer need to be pressed

at least in-chief.

Your Honours, with that preamble may I turn to

each of our four submissions, and before doing so,

I should say that two of our submissions anyway

depend upon a finding that common law native title

is either extinguished or substantially modified by

the provisions of the Land Rights Act. If we were

to fail in that submission then clearly our

construction argument would have great

difficulties, and also with some equal clarity our

argument based on section 10(1) of the Racial

Discrimination Act would have problems.

The submissions based on section 10(3) of the

Racial Discrimination Act, and also the submissions based on the Native Title Act would remain, in our

respectful submission, valid even if Your Honours

were to find that common law native title is not

extinguished or not substantially modified by

reason of the operation of the Land Rights Act.

In order to address that question of the effect of the Land Rights Act upon common law native title, it is necessary to briefly remind

Your Honours of how the Land Rights Act operates,

and we have sought to do that starting at page 3 of

our submissions, and we do apologize if, in many of	these paragraphs, we are stating what to
Your Honours is the obvious given the many
occasions upon which Your Honours have considered
the Land Rights Act in the past decade or so, but it is necessary, in our respectful submission, to understand that operation fully in order to see the
manner in which the Land Rights Act affects what is
now known to be an enforceable common law title.
The first point to make, Your Honours - and we set it out in paragraphs 6 to 8 of our outline - is
that the only land which can be the subject of a grant under the Land Rights Act is land which is defined in the Act as unalienated Crown land or, alternatively, a limited class of what is defined
as alienated Crown land and that is alienated Crown

Pareroultja(2) 6 12/4/94

land in respect of which all outstanding estates or

interests not held by the Crown are held by or on

behalf of Aboriginals.

Your Honours have, on several occasions, noted

that fact and without taking Your Honours to the

authorities I could give Your Honours a reference

to where Your Honours have recognized that in

previous cases. Two convenient references are:

Reg v Toohey; Ex parte Attorney-General for the Northern Territory, 145 CLR 374, at page 389 at

about point 3, and that is a joint judgment of
Justices Stephen, Mason, Murphy and Aickin.

Perhaps I could start at the top of the first full

sentence:

They enable Crown land to be granted to Land

Trusts, to be held for the benefit of those

Aboriginals entitled by Aboriginal tradition

to the use or occupation of that land. Only

Crown land is to be the subject of this

programme of returning land -

that is a theme we will come back to. But

Your Honours have said on many occasions is that

the object of this legislation is to return or

restore -

land to its traditional Aboriginal owners, and

then only certain Crown land; Crown land in

which any estates or interests are held

otherwise than "by, or on behalf of,

Aboriginals" cannot be the subject of a

recommendation by the Commissioner and (land

in scheduled districts always apart) cannot be

granted to Land Trusts. Thus, neither

freehold land nor Crown land the subject of

lesser interests held by white men can be made

the subject of grants to Land Trusts for

traditional Aboriginal owners. Only

unalienated Crown land and Crown land in which

estates or interests are held "by, ot on

behalf of, Aboriginals" are, by the Act, to be
available for return to their traditional

Aboriginal owners.

A similar statement, Your Honour, was made by the

former Chief Justice Sir Harry Gibbs in Reg v

Kearney; Eex parte Northern Land Council,

(1984) 158 CLR 365 at 372 point 6.	The passage
starts:	·

The framers of the Land Rights Act

obviously found it necessary to reconci~e

competing interests. On the one hand, it was

intended that the traditional Aboriginal

owners of lands in the Northern Territory

Pareroultja(2)	12/4/94 should, where p~acticable, be able to acquire, through the medium of Land Trusts, an interest
in those lands that is recognized by the law. On the other hand, it was not intended to
interfere with existing estates and interests
already obtained under the law by persons other than Aboriginals.

The other feature, before I leave this point to

remind Your Honours of, is that in respect of land

where Aboriginals hold a relevant estate or

interest a grant can only be made where those

Aboriginals holding that estate or interest consent to the land claim going ahead, and they have to

consent in writing to the Commissioner. That is

section 50(2C) of the Land Rights Act.

So we have a situation where, as we develop

later in our submissions, manifestly in this

beneficial legislation which the Commonwealth has passed in 1976, the Land Rights Act, there was an

express recognition that land in respect of which
others held an estate or interest was not to be the
subject of a grant under the Land Rights Act. That

is a theme or a purpose of the Land Rights Act to

which we shall be reverting when we come to address

Your Honours on the construction argument, because

just to foreshadow it briefly, it is our respectful

submission that some of the obscurity of the

language of the Land Rights Act in respect of common law native title arises because of the historical reality at the time the Land Rights Act

was passed no one thought that was an eventuality

which had to be dealt with because they did not

think that native title enforceable at common law

existed; and it was the whole purpose, in our

respectful submission, of the Land Rights Act to

overcome that perceived lack of common law

enforceability.

BRENNAN J: Your proposition depends solely on the

proposition that estate or interest in the

definition of "unalienated Crown land" or in

"alienated Crown land" means an estate or interest

which may not have been created by alienation?

MR SULLIVAN:	Yes, Your Honour, that is our primary submission. Our secondary submission is that
Your Honours can read into the definition of "Crown
land" a limitation, the limitation being after the words "land in the Northern Territory", the
limitation other than land in respect of which
there is valid and subsisting common law native
title. So we say that this - - -

12/4/94

Pareroultja(2) 8

BRENNAN J: That is a very distinct argument. The first

point is really an extremely short point, is it

not?

MR SULLIVAN: It is indeed, Your Honour. Indeed,

Your Honours have touched upon this and Your Honour

the Chief Justice mentioned a view of the

definition of unalienated Crown land in the

Meneling Station case which we will take

Your Honour to briefly. Your Honour

Justice Brennan agreed generally with His Honour

the Chief Justice's comments in Meneling Station

and Sir Harry Gibbs also agreed with the reasoning

of the present Chief Justice in that case.	We will
take Your Honours to that very shortly.

Your Honours, reverting if I may to the scheme

of the Act, what occurs once land is the subject of

a claim, a commissioner has heard the matter of

course, is that he makes recommendations.

Your Honour Justice Toohey will be more familiar

than most with the format, and we do not labour it.

The relevant provisions, of course, for

recommendation are set out in section 11 of the

Act, and we set out in paragraphs 9 and 10 of our written submissions a skeleton of what occurs in

respect of it.

The first step, of course, is a land trust

needs to be set up. The second step, of course, is

that the recommendation be made to the Governor,

and the third step is that the Governor-General
decides whether or not to accede to the Minister's

recommendation and make a grant of that land to the

land trust.

TOOHEY J: Is there not a step left out in paragraph 9,

Mr Sullivan? It reads presently:

Assuming that the land is capable of being a

subject of a grant under the Act, upon the

appropriate recommendation being made, the

Minister is obliged to set up a land trust.

The Minister also has to be satisfied.

MR SULLIVAN:  Yes, Your Honour. There is a discretion which

is afforded to the Minister, and this Court has

held the Minister is not bound by the

recommendation of the Land Commissioner. For more

complete accuracy, we are obliged to Your Honour,

that once the recommendation has been made by the

Land Rights Commissioner, then the Minister if he

decides in the exercise of his discretion that the

land should be granted, then makes his own

recommendation and is obliged, having done that, to

Pareroultja(2) 12/4/94

set up a land trust to hold the land as set out in

section ll(l)(c) of the Act.

The title - if I might jump because

Your ~onours have dealt with this scheme on many

occasions and I do not want to take undue time on

something which is so familiar to Your Honours.

But we simply might remind Your Honours again that

the title which is held by a land trust under the

Land Rights Act is a fee simple, or it is expressed

to be fee simple. It is an unusual fee simple in

the sense that the Act imposes certain conditions

upon those who acquire the fee simple; for instance

very limited rights of alienation, but it is

expressed to be a fee simple and, indeed, that is

apparent from section ll(l)(e) and 12(l)(a) of the

Act, and of course this Court again has recognised

that in a number of cases.

We would simply, for present purposes, refer

Your Honours to Reg v Toohey; Ex parte Meneling Station Pty Ltd, (1982) 158 CLR 327. The first

convenient reference is at page 335 in the judgment of Your Honour the Chief Justice. At about point 3 of the page Your Honour says:

Section 11(1) provides that, where the

Commissioner recommends to the Minister that

land should be granted to a Land Trust and the

Minister is satisfied that the land should be

so granted, the Minister shall, inter alia,

establish a Land Trust to hold the land for

the benefit of Aboriginals entitled by

Aboriginal tradition to the use or occupation

of the land and he shall recommend to the

Governor-General that a grant of an estate in

in deed of grant by the

fee simple the land be made to the execution of the

Governor-General.

Similar passages are found in the judgment of

His Honour Justice Wilson at 347, in a very short

passage at the top of the page:

Sections 11 and 12 provide the machinery whereby a grant of an estate in fee simple in

land may be made to a Land Trust, provided

that two conditions precedent are satisfied.

Those conditions are, first, that the

Commissioner recommends to the Minister that a

grant of a specified area of Crown land be

made and, secondly, that the Minister is

satisfied that .the land or any part of the

land should be so granted.

12/4/94

Pareroultja(2) 10

Finally, Your Honour Justice Brennan dealt with the

same point at page 355 of the judgment. We rely on

this passage quite heavily in this case,

Your Honours, so if I could read more of it than is relevant, for the point I am now bringing Your

Honours to, to save reverting to it.	At 355
Your Honour Justice Brennan said this:

The Act provides for the restoration of

some areas of land within the Northern

Territory to Aboriginal control and gives

legislative recognition to Aboriginal rights

and interests in that land. The Act does not

confer or authorize the Crown to confer

proprietary rights upon particular Aboriginals

beneficially: Land Trusts are created to hold

the title to an estate in fee simple in

Aboriginal land -

and then Your Honour sets out the definition of

Aboriginal land:

Paragraph (a) of this definition relates

to land granted pursuant to s 12(l)(a);

par (b) relates to land granted pursuant to s

12(l)(b). When land is granted pursuant to s

12(l)(a), there is no estate or interest in

that land outstanding in the hands of any

person other than the Crown; when land is

granted pursuant to s 12(l)(b), there is such

an estate or interest outstanding and the deed

of grant or an estate in fee simple in held in

escrow by the Land Council until all such

estates and interests come to an end,

whereupon the deed of grant is delivered to the Land Trust. The granting of land under the Act vests in the hands of Aboriginal Land

Trusts proprietary rights which, unlike the

traditional usufructuary rights which

Blackburn J held not to be property, are

recognized by the common law. Those

proprietary rights are carved out of the

Crown's radical title. Generally speaking,

the title to land which passes from the Crown

under a deed of grant executed and delivered

to a Land Trust under s 12 neither impairs nor
affects any estate or interest outstanding in

the hands of a third person. Any such estate

or interest must be acquired before a

recommendation is made under s 11(1) -

For completeness, if I could take Your Honours

to a further passage of His Honour

Justice Brennan's judgment in Meneling Station, and

that is at page 358. In the first two-thirds of

that page Your Honour identifies some of the

aspects of traditional native title and the task to

Pareroultja(2) 11 12/4/94

be confronted by the Aboriginal Land Commissioner,

and then Your Honour goes on at 358 at about

six-tenths of the way down the page;

However, if the Aboriginal Land

Commissioner finds that "there are Aboriginals

who are the traditional Aboriginal owners of

the land" and recommends that land be granted

in accordance with ss 11 and 12, and if the

land is granted under s 12 and becomes

Aboriginal land, any Aboriginal has or any
Aboriginal group have his or their traditional

rights restored - not in a form unrecognized

by law, but in the form of rights conferred by

statute. Subject to the proprietary rights of

third parties (not being a land trust or an

Aboriginal Council or corporation) Aboriginals

are entitled to their traditional rights of

entry, occupation and use with respect to

Aboriginal land -

and Your Honour then sets out section 71, and then

Your Honour goes on to say:

The Act thus protects the exercise of those

usufructuary rights which Aboriginal tradition
either required certain groups of Aboriginals

to exercise or allowed certain groups to enjoy

with respect to land.

Your Honours, once the land trust is given the land, it is obliged to do certain things under the

Act and its powers in respect of that land are

severely circumscribed or, at least, set out under

the Act. The first of the sections which is

necessary to go to is in the Land Rights Act,

section 5 of the Act, and in my reprint that

appears on page 9. Section 5 of the Land Rights

Act states what the functions of the land trust

are. The first one is:

to hold title to land vested in it in

accordance with this Act -

and that is in fee simple. The second one is of

importance:

to exercise its powers as owner of land
referred to in paragraph (a) for the benefit

of the Aboriginals concerned -

that is an expressions which, as we will see in a

moment, embraces more than simply Aboriginals who

are the traditional.Aboriginal owners as defined.

It embraces at least all of those who can be

beneficiaries under the trust. They are people who

would not necessarily fall within the definition of

Pareroultja(2) 12 12/4/94

traditional Aboriginal owners. That is a point we

make some play of because, under the Land Rights

Act, the trust which is created is not one which is

confined to what the traditional Aboriginal owners

as even defined in the Act, and therefore is not	'
one which is confined to, in our respectful submission, people who would satisfy the criteria
inherent in the common law concept of native title.

Section 5(2) of the Land Rights Act is an

important limiting factor. It states the land

trust:

shall not exercise its functions in relation

to land held by it except in accordance with a

direction given to it by the Land Council for
the area in which the land is situated;

That is important because we will be submitting in due course that the effect of managers of land granted under the Land Rights Act is not the land trust but rather, the relevant Land Council.

Section 7 of the Act is of importance as well,

as we point out in our written submissions, because

that defines who are to be the members of the land

trust. I have omitted to tell Your Honours

already, but we have set it out in paragraph 10 of

our submissions that the land trust is expressly

deemed to be or stated to be a body corporate and
that is section 3 of the Act. Section 7 then sets
out the persons who are to comprise the membership
of the land trust and in particular it is

subsections (2) and (3) set out the categories of

persons who may be members of a land trust.

In our respectful submission, the only

relevant precondition is set out in section 7(6): All members of a Land Trust shall be

Aboriginals living in the area of the Land

Council in the area of which the land of the

Land Trust is situated or whose names are set

out in the register maintained by that Land

Council in accordance with section 24.

Section 24 is the register of traditional owners

which the Land Council is empowered to keep. So

membership is not confined to traditional
Aboriginal owners, nor is it indeed confined to

others who may have an interest in the land.

Membership of the land trust extends or can

extend to any Aboriginal who lives in the area

under the jurisdiction of the relevant Land

Council. I say that in passing because, as I have

indicated to Your Honours, the land trust is really

Pareroultja(2) 13 12/4/94

subject to the exclusive direction of the Land

Council and section 5(2) makes that plain. It directs the land trust not to do anything unless it

is directed to by the Land Council in 5(2)(a) and

indeed, requires it to act as the Land Council '

directs by section 5(2)(b).

The powers of the land trust, especially in

relation to dealings with the land, are set out in
the main in another section which we rely upon in

the Land Rights Act, namely section 19 of the Act.

Section 19 is the provision which I referred

Your Honours to before which makes this a curious

type of fee simple because it limits the

circumstances in which there can be an alienation

and section 19(1) provides that:

Except as provided by this section or

section 20, a Land Trust shall not deal with
or dispose of, or agree to deal with or

dispose of, any estate or interest in land -

It is convenient to go quickly, before going

to the other subsections, to section 19(12) which

puts an important fetter on the land trust's powers

of dealing with the land stating that:

The preceding provisions of this section

do not authorize the grant by a Land Trust of

the fee simple in land vested in it except in

the circumstances referred to in

paragraph (4)(b).

And, (4)(b) that:

With the consent, in writing, of the

Minister and at the direction, in writing, of

the relevant Land Council, a Land Trust may:

(b) transfer to another Land Trust, or

surrender to the Crown, the whole of its
estate or interest in the whole, or any part
of, the land vested in it.

So, the scheme effectively is that the only

surrender or transfer of fee simple which can occur
is either to another land trust or by way of a

surrender to the Crown.

There is a limited power to grant estates or

interests in the land conferred by subsection (3),

which I do not presently need to take Your Honours

to, but a relevant fetter on the discretion or the

power of the Land Council to give the direction

which triggers the rights under paragraph 4(b) is

set out in subsection (5). Now, we have had some

12/4/94

Pareroultja(2) 14

assistance from Your Honours as to the construction

of this particular part. Section (5) prohibits a

Land Council from giving a direction unless it is

satisfied of three things. The first, which is

obviously important from the point of view of

clients such as ours, is that:

the traditional Aboriginal owners (if any) of

that land understand the nature and purpose of

the proposed grant -

et cetera, and:

consent to it;

The second, which we attach significance to, is

that Aboriginals other than those traditional

owners who:

may be affected by the proposed grant,

transfer or surrender has been consulted and

has had adequate opportunity to express its

view to the Land Council; and -

the third, is that the Land Council must be

satisfied that:

the terms and conditions ..... are reasonable.

We submit that the practical effect of those

prohibitions is that unless not only the

traditional owners approve, but also the Aboriginal

community or group referred to in subparagraph (b)

approve the relevant transaction, then the Land

Council cannot give a direction.

TOOHEY J: Is that correct, Mr Sullivan? Does paragraph (b)

do any more than give an affected Aboriginal

community or group the right to express its views?

MR SULLIVAN:	effect is what we respectfully submit and, indeed, On its face it does not, but the practical	that seems to be the view which was adopted by
Your Honour Justice Brennan in Meneling Station. I
have taken Your Honours to Meneling Station before,
158 CLR 327, and Your Honour Justice Brennan deals
with this matter at 359 at the top of the page in the paragraph beginning:

The usufructuary rights of Aboriginals in respect of Aboriginal land, once acquired,

might be overridden by the granting of a lease

or licence by a Land Trust (s 19(3)), or by a
surrender of that land to the Crown (s 19(4)),
but any of those events requires the approval

of the traditional Aboriginal owners, and of

Pareroultja(2) 15 12/4/94

any Aboriginal community or group that might

be affected thereby - - -

TOOHEY J: There is a fairly clear difference of language in

paragraph (a) and paragraph (b).

MR SULLIVAN: There is a shift in language.

TOOHEY J: Paragraph (a) speaks of consent; paragraph (b)

speaks only of the opportunity to express a view.

MR SULLIVAN:  Yes, Your Honour. There is a shift in

language and obviously Your Honours would determine

that that shift in language was not inadvertent by

Parliament.

BRENNAN J:  Mr Sullivan, let me say immediately, I recant.

It is not so. I mean, the whole idea of this is

that the traditional Aboriginal owners are the ones

who have the essential veto. The others have a

right of consultation and the third condition of the Land Council's power was intended to be with the miners.

MR SULLIVAN:	Yes, Your Honour.
BRENNAN J:	So if the Land Council bureaucracy would

negotiate with the miners and say, "Is this
reasonable?", then there would be a consultation

with the communities affected, for example, one

community wanted to go over land belonging to

another, but the final veto would be in the

traditional owners. That is the basic notion.

MR SULLIVAN:  Yes, we do not, with respect, disagree, except

that although Your Honour has, with respect,

recanted from the proposition, we would submit that

in practical terms the approval - although the

section says only consent is required, in practical

terms a Land Council would be loathe to make a

direction unless another community or group also

approved it, as well as the Aboriginals.

BRENNAN J: It depends on whether there was, for example, a

conflict in Maningrida between the occupants and

the traditional owners and that was not an

impossible situation to contemplate.

MR SULLIVAN:	Yes, Your Honour.
TOOHEY J: And it is not	really quite enough to say that in

practical terms	paragraph (b) has that effect,
because you are	seeking to erect, or draw our
attention to, a	str~cture, the features of which
you are seeking	to rely upon for the purpose of
your argument.	But you are making a great deal of
the position of	the land trust and its lack of

Pareroultja(2) 16 12/4/94

power but is there anything unusual about the

registered proprietor of a land who in fact is a

trustee or holds a position akin to that of a

trustee, having limited powers of disposition, or

being required to act in accordance with the views

of the beneficiaries.

I appreciate that modern trustee legislation

tends to confer wide powers on the trustees and

they are the decision makers in many cases, but if

you went back to the old settled land legislation

you would find a quite different situation as to

where power resided vis-a-vis the registered

proprietors.

MR SULLIVAN:  Your Honour, if I might answer that inquiry in

two stages, there is legislation of course, some of

which you have mentioned, whereby the rights of the

registered proprietor are circumscribed and there

are dictates imposed about how he or she or it

addresses those rights. However, of course, that

concept is one which is foreign to the common law

of trusts. The common law of trusts of course

prohibits a trustee acting at the direction of the
beneficiary except in the rare circumstance of the

rule in, say, Saunders v Vautier where, if the

beneficiary is of full age, et cetera, he can

direct a transfer of the land to himself.

But the point we are trying to make here,

Your Honour, is this, that the beneficiaries as

such of this land were, we say, the common law

native title holders. Their direct management and

say over their land is effectively transferred to

another or transferred to two others and that,

although they have a right of veto, the converse is not true. We pose an illustration later on, but it

could be conveniently expressed now, since we are
dealing with subsection (5), that whilst, as His

Honour Justice Brennan says, it is perfectly correct to say that traditional Aboriginal owners

may veto a proposed surrender, the converse is not

true.

It may be that common law native title holders

wish to surrender their common native title in
return for, say, a promise by the Crown of a grant

in fee simple to them. It is a matter which was

specifically adverted to by Your Honours, and

especially Your Honour Justice Brennan, in

Mabo (No 2), where Your Honour Justice Brennan

indicated there may be a fiduciary obligation which

arose in that circumstance.

Here, even if the traditional Aboriginal

owners wished to surrender the fee simple conferred

by this Act to the Crown in order to obtain a fee

Pareroultja(2) 17 12/4/94

simple themselves, for instance, they have not got

the power to do so. That power is in accordance

with a direction of the Land Council which may or may not - and it may be for good reasons - decide

not to do it.

TOOHEY J: That is undoubtedly true, but I am not sure where

this analysis of the structure of the Act is taking

us.

McHUGH J: Yes, I was going to ask the same question. ram

not quite following this. This argument is

directed to your first point - - -

MR SULLIVAN:  It is directed to the point as to whether

common law native title is extinguished or

substantially modified by a grant under the Land

Rights Act.

TOOHEY J: But for the purpose of your argument - and I do

not want to take you ahead - but you are from time

to time proceeding on the assumption that
traditional ownership under the Land Rights Act and

common law native title are synonymous.

MR SULLIVAN:  If I have sought to appear that way, we do not proceed upon that assumption. We recognize that

there can be differences between those two

categories. There is no doubt, with respect,

Your Honour, that when the definition of

"traditional ownership" was done in the Act, it was

attempted to be done, in our respectful submission,

to embrace within it those people who had the
traditional ties with the land and who may, if it

had been recognized at that stage by the common
law, have been called the common law native title.

But we do recognize that the common law native

title as explained by this Court in Mabo (No 2),

the category of people who may fall within that

common law definition may not be precisely

coincidental with the category of people who are

traditional owners for the purpose of the Act,

although ordinarily that would be the case, in our

respectful submission.

BRENNAN J:  What is the significance of having either a

similarity or a dissimilarity in the respective
sets of rights? Your only case, as I understand

it, is that you want to maintain that there is no

power to make a grant under the Land Rights Act.

MR SULLIVAN:  Yes, Your Honour.

BRENNAN J: What happens if a grant is made is a matter no

doubt for consideration, but it does not really

throw light on the proposition as to whether the

grant can be made, does it?

Pareroultja(2) 18 12/4/94

MR SULLIVAN: In our respectful submission, it does,

Your Honour, because if we can persuade

Your Honours that the scheme of this Act grossly

impairs upon what would be otherwise rights under

common law native title enforced by law, and

because it shifts the instance of management, that

is a relevant factor for Your Honours to consider

on the construction argument, for instance, because
on the construction argument Your Honours would

have to face the proposition that, "Did the legislature intend that to occur?", and the

presumption against such common law rights being

abrogated or modified, and Your Honours would then

have a justification for a construction of the

relevant paragraphs of the definition sections

along the lines, we submit, they should be

construed. That is the first relevance.

McHUGH J: This is what I am just not following. This

argument is directed to your point that	upon its
proper construction the Land Rights Act	does not
apply to land in respect of which there	is a valid
and subsisting common law native title.	Is that
right?

MR SULLIVAN:  To that point and it is also relevant to the

submission we make based on section 10(1) of the

Racial Discrimination Act. If I take Your Honour to section 10(1) of the Racial Discrimination Act

just to hopefully highlight the relevance of that

section, that section provides:

If, by reason of, or of a provision of, a

law of the Commonwealth or of a State or

Territory, persons of a particular race ..... do

not enjoy a right ..... or enjoy a right to a

more limited extent than -

others, then certain consequences flow. What we

say is by reason of the Land Rights Act, common law

native title holders would not enjoy the rights

inherent in the common law native title, or at

least would enjoy it to a more limited extent than

other people who have an interest in land enjoy it.

So the submissions are a precursor to those two

ultimate submissions we make.

TOOHEY J: But when you put it that way, Mr Sullivan, are

you not again equating common law title holders

with traditional owners? Why do you not put it in

terms that traditional land owners do not enjoy a

right that is enjoyed by other persons? I mean, I

just do not quite understand what the point is.

MR SULLIVAN:	The reason we do not put it that way, Your Honour, is because traditional land owners
only acquire their right for the purposes of the

Pareroultja(2) 19 12/4/94

Racfal Discriminatfon Act by reason of this very

:eg7me we are talking about. The right which is	impinged, and the only right which can be impinged
by the Racial Discrimination Act, in our respectful
submission, are the rights of people as common law
native title holders. If the distinction is made
which Your Honour has adverted to, it really
highlights the problem rather than diminishes it,
because if you have got a situation where an estate in fee simple can be granted to people, traditional
owners, who are not the common law native title holders or who are not exclusively those common law native title holders, then what room is there left, in our respectful submission, for the existence of a common law native title in respect of that very
same land?

McHUGH J:	I am confused.
TOOHEY J:	I understand the point you are making, but it

seems to me that you are driven back, for the

purposes of the argument, to a proposition that

traditional ownership under the Land Rights Act is

synonymous with native title, as discussed in Mabo.

MR SULLIVAN:	Your Honour, we do not submit that we are driven to that situation. Indeed, what we submit
is that ordinarily, and indeed Justice Lockhart
found this and the Full Federal Court found this,
and we, with respect, adopt this finding because it
is obvious that ordinarily there will be a close
coincidence between those who are found to be
traditional owners within the legislative
definition, and those who are common law native title holders. It will not always be the case.

TOOHEY J:  That may be. I was simply cavilling at the

assumed equation between the two.

MR SULLIVAN:  Your Honour, if I have clumsily done that, I

apologize. We recognize the distinction. But our

submission is, and if I might try to answer

Your Honour's question and at the same time render

Justice McHugh's mind less confused - seek to

explain why the structure of the Act is significant

to our submissions, and it is necessary to go

through.

We recognize that there must be a purposive approach to the construction argument for us to

succeed. We recognize substantial difficulties on

a literal construction for us of the Land Rights

Act. In order to persuade Your Honours of the

correct construction on a purposive approach, it is

necessary, in our respectful submission, to point

to the features of the Land Rights Act which are

Pareroultja(2) 20 12/4/94

inconsistent or incompatible with the continued

unfettered complete enjoyment of common law rights.

BRENNAN J:  Can I interrupt you just for a· moment? I

accept, for the purposes of this argument, the

validity of what you just said, that it is

inconsistent, and that the creation of a fee simple

with all the powers that are given to a land trust

under the direction of a Land Council are
inconsistent with the unfettered enjoyment by

native title holders of all their respective native

title rights. But the proposition that unalienated

Crown land did not include land which can be the

subject of a native title claim at common law seems

to me to be extraordinary. What it means is that

the Parliament must be taken to have intended that

none of the land, which traditionally belonged to

Aborigines in the Northern Territory, should be given to them.

MR SULLIVAN:	No, Your Honour.
BRENNAN J:	I mean the very purpose of the Act is the

opposite.

MR SULLIVAN: It sounds extraordinary. If I could try to

make it sound more ordinary in this way: we start

as I have said before, with the historical reality

that when the Land Rights Act was passed everyone

apparently thought, including this Court, with

respect, that there was no such thing as native

title enforceable at common law.

That is why, in our respectful submission, the

Act is framed the way it is. That is why the

second reading speeches, the speeches in Parliament

read as they do. Starting there, there was no need

to expressly refer to common law native title at
all in the Land Rights Act because it just did not,

in the minds of legislatures, exist.

To use the language of Justice McHugh in

Kingston v Keprose, which we will come to in a

moment, and which appears to have been adopted by

this Court, what occurred, in our respectful

submission, is that there was an eventuality

required to be dealt with by the Act which was not

dealt with, that eventuality being the possibility
or the probability or the chance that indeed there

was common law native title.

When you look at the scheme of the Land Rights

Act, you see it is at pains to ensure that only

land which is not the subject of other interests is

granted. So we come to situation, in our

respectful submission, to say, if the legislature

had adverted to that eventuality, what is it likely

Pareroultja(2) 21 12/4/94

likely to say that that would have rendered 1 clearer	to have done? In our respectful submission it is
the definition of unalienated Crown land, in the
mann7r_I have indicated, because that would give
Aboriginals who are common law native title holders
precisely the same choice as it gives Aboriginals
who have other estates or interests of land under section 50 ( 2C) .

It does not stop land being granted to common

law native title holders. Rather, what it does is

to say give them the right to veto such a right and

say, "We do not want land granted to us, thank you

very much", or alternatively, in just the same way as section 50(2C) operates, they can say, "Yes

thank you, we would prefer the administrative

facility and ease of a grant under the Land

Rights Act".

BRENNAN J:	The indefeasibility.
MR SULLIVAN:	And the indefeasibility, and the other

advantages.

BRENNAN J: And the other advantages.

MR SULLIVAN: Traded off however, with respect, Your Honour,

by other features which may or may not be features

which the Aboriginals wish to have.

BRENNAN J: Such as?

MR SULLIVAN:  Such as, Your Honour, the right to make their

own decisions in respect of the land, in so far as those decisions are permitted by common law native

title.

BRENNAN J: Section 71.

MR SULLIVAN: Section 71, Your Honour; such as the right to

surrender the land to the Crown in return for a

grant of fee simple.

BRENNAN J: Which the land trust can do.

MR SULLIVAN:  It can do, but it is not obliged to do and

that is an important feature, in our respectful

submission, such as the right conferred by the

Native Title Act and the recognition of right,

self-determination, a freedom of choice to choose,

fondly or foolishly, if you like, to look after

things yourself rather than have somebody else look

after them for you. That is our respectful

submission; that this whole legislative scheme,

benign as it obviously was, beneficially intended

as it was, is now out of step with the situation

which is available to Aboriginals in this country.

Pareroultja(2) 22 12/4/94

McHUGH J:  My confusion may now disappear, depending on the

answer to this question, but, do you accept that

your clients do not have an estate or interest in

the Crown land for the purpose of the definition of

"unalienating Crown land"?

MR SULLIVAN:  No, we do not, Your Honour. We say that

Your Honours should construe those words liberally

so that those words include an estate or interest

which arises from common law native title.

McHUGH J: But the historical matter to which you referred,

namely the decision of Mr Justice Blackburn,

indicates quite plainly, does it not, that those

words "estate" or "interest" were intended by the

Parliament to refer to the types of estates or

interests which common law or equity recognize,

being interests in land as opposed to the native

title concept.

MR SULLIVAN:  Your Honour, it indicates quite clearly, as

Your Honour says, that it referred to estates or

interests recognized by the common law or equity.

That is precisely what this Court has said in

Mabo (No 2) common law native title is. It is recognized by the common law.

McHUGH J: Yes, but a different type. In Justice Brennan's

judgment there is a reference to a native title

being a proprietary right or interest.

MR SULLIVAN:  Your Honour, there are several references in

that and, of course, Your Honour agreed with that

judgment.

MCHUGH J: Yes.

MR SULLIVAN:	We will be taking Your Honours to a number of passages of judgments of this Court and we hope,
with respect, Your Honours do not recant on them
all, but where Your Honours have set out that this
is a common law right, going as high as proprietary
right; Your Honour Justice Toohey suggests in
Mabo (No 2) that, with possession, it could well
have become a fee simple upon annexation.
TOOHEY J:	It is not an easy path to follow you down, but

the reference to "estate or interest" in the

definition of "unalienated Crown land", cannot be

divorced from the meaning of Crown land itself.

MR SULLIVAN: Precisely, Your Honour.

TOOHEY J: That in turn is defined to mean land that has not

been alienated from·the Crown by a grant of an

estate in fee simple in the land. It is

Pareroultja(2) 23 12/4/94

necessarily picking up Anglo-Australian concepts of

property law.

MR SULLIVAN:  Your Honour, may I answer this in this way.

That is certainly the view which the present

Chief Justice appears to adopt in Meneling which r

am not trying to hide from - I will come to in a

moment - to suggest why that view is not

necessarily a correct one, with respect, but - - -

MASON CJ:	You mean I need not have had?
MR SULLIVAN:	You need not have had, yes. First of all, it

is pure obiter, Your Honour, it was not necessary

for Your Honour's decision, and secondly, it was at

a time when Your Honour was not instructed by the

High Court in Mabo (No 2) as well. A third factor,

Your Honour, in our respectful submission, is that

quite clearly in that, Your Honour worked upon the

apprehension that common law native title did not

confer a common law right of a proprietary nature or another. I will take Your Honour to that in a

moment.

But if I could,just address Justice Toohey's

question first, because we agree that you have to
read in the definition of Crown land into

unalienated Crown land, because it is a

prerequisite of being unalienated Crown land that

it is Crown land. But it is important to actually

do that task, Your Honours, because then a contrast

in language emerges. If Your Honours look at the

language, the definition of "unalienated Crown

land", it states:

"unalienated Crown land" means -

and then if we insert the relevant part of the

definition of "Crown land", it reads something like

this:

land in the Northern Territory that has not

been alienated from the Crown by a grant of an

estate in fee simple in the land, or land that

has been so alienated but has been resumed by,

or has reverted to or been acquired by, the

Crown -

and then there is a "but does not include", which I

will leave out -

in which no person other than the Crown has an

estate or interest.

So we have in the first part of that extended definition a reference to land which has been

alienated from the Crown by a grant of fee simple

Pareroultja(2) 24 12/4/94

and those words are singularly lacking in respect

of the second part of the definition, being in

which no person other than the Crown has an estate

or interest.

Two things emerge from that, in our respectful

submission. Quite plainly the reference to "estate

or interest" in unalienated Crown land cannot be a

reference to an estate or interest conferred by a

fee simple because it would be tautologous in the

light of the expanded definition. So there is one

of two constructions available, we suppose. The first, which we do not prefer, is that the words

"estate or interest" mean some interest lesser than

a fee simple which has been alienated from the

Crown. The second is that those words are intended

to import an estate or interest recognized by the

common law, howsoever created or howsoever it

arises.

We respectfully submit that an interpretation

to the contrary would defeat one of the clear

purposes of the Act which Your Honours have

identified on numerous occasions, and that is, the

intention that this land is not to be permitted to

be the subject of a grant if other people have an

interest in it unless, in the case of Aboriginals,

those Aboriginals choose. On our construction

argument, Your Honours, it is not the end of the

Land Rights Act at all. On our construction

argument, what it does is to confer on Aboriginals

a choice, a choice between whether they wish to

hold their common law native title either as common

law native title, or whether they wish to have a

determination under the Native Title Act and to

have the trust regime and/or a management scheme

set up under that; or thirdly, whether they wish

to have the choice of submitting to a claim under

the Land Rights Act and having a land trust

established.

BRENNAN J:  How could they have that if your argument is

right?

MR SULLIVAN: Because, Your Honour, if one goes to

section S0(l)(a) it would not be unalienated Crown

land, but it would be -

alienated Crown Land in which all estates and

interests not held by the Crown are held by,

or on behalf of, Aboriginals -

and then they could decide whether to go ahead or

they could exercise their veto under 50(2C).

I hope I have fully answered Your Honour

Justice McHugh's question but, in our respectful

Pareroultja(2) 25 12/4/94

submission, subject to dealing now with what the

Chief Justice said in Meneling, there is nothing to

stop the Court on a purposive approach construction

gi:7"ing the words "es~ate or interest" the meaning

which we seek to do it. Indeed, we would submit

that any other construction effectively defeats one

of the main purposes of the Land Rights Act.

Your Honour the Chief Justice dealt with the

definition of "unalienated Crown land" in the

Meneling Station case, 158 CLR 327, and Your Honour

commences the discussion at the foot of page 341.

The Meneling Station case, as Your Honours will

recall, was a case of a grazing licence and the

competing contention was whether that was a

proprietary interest in the nature of a profit a

prendre or whatever, and Your Honours eventually

held that it did not come within the definition of

an estate or interest for the purposes of

section 3(1) of the Act. Your Honour the

Chief Justice says this at the foot of 341:

The applicants' argument is that a

grazing licence created under the Crown Lands

Act is a profit a prendre and constitutes an

interest in land. The respondents do not

dispute that a profit a prendre constitutes an

interest in land at common law. Their

submission is that a grazing licence created

under the Crown Lands Act is not a profit a

prendre; that the statute gives a clear

indication that a grazing licence does not

carry with it an interest in land.

There is no question that the phrase

"estate or interest" in the Act has, in its
ordinary and natural usage, a proprietary

connotation -

and, Your Honours quote a decision which I will

take you to briefly in a moment, or two decisions:	No one who has a merely personal right in
relation to land can be said to have an "estate or interest" in that land. Here the
natural and ordinary meaning of the expression
is reinforced by the circumstance that it is a
constituent element in the definition of
"unalienated Crown land".  The definition
gives emphasis to the notion that Crown land
remains unalienated unless and until the Crown grants to another some proprietary interest in the land.
Now, with respect to Your Honour the

grant, then a grant in the future does not satisfy

the definition in subsection (3) of a past act.

The consequence of that is that the act does not in

any way validate either the Land Rights Act itself,

nor a grant thereunder in the context of the

present case. So we can skip by presently the

various categories of "past act" and I can deal

with those more fully in reply if that occasion

arises, because my learned friend, the second

respondent, I think is seeking to rely upon those

provisions and put a proposition contrary to ours.

The other relevant definition of how the Act

operates is in respect of future acts. In respect
of future acts, it says some are permissible and

some are not permissible, and there are various

consequences which flow. The definition of "future

act" is set out in section 233 of the Act:

a "future act" in relation to land or waters -

means:

{i) it consist- of the making ..... of

legislation ..... after 1 July 1993 -

Pareroultja(2) 86 12/4/94

the Land Rights Act of course does not apply there.

Or:

(ii) it is any other act that takes place on

or after 1 January 1994; and

(b) it is not a past act -

Prima facie, a grant in the future, if our

submissions be correct to date, could satisfy the

definition so far of a future act, but it cannot -

it fails because of subsection (3) which says:

Subsection (1) does not apply to any of the following acts:

(a) an act that causes land or waters to be
held by or for the benefit of Aboriginal

peoples ..... under a law mentioned in the

definition ..... in section 253 -

And one goes to 253 and one then has this curiosity

that one of the Acts referred to - this is on page

122 of the print - is the Land Rights Act of the

Northern Territory. That is subparagraph (3). So

a grant of the type which is envisaged is expressly

not a future act under this Act, it is expressly

not a past act under the Act if we are right in our

submissions.

So that the only way one can determine whether

the future operation is protected or not is to
construe section 210(c), because that is the only

saving provision which is available and that

section, as we say, states that nothing affects the

rights or interests of any person under the

Aboriginal Land Rights Act. It says no more than

that. In our respectful submission, unless and

until a grant is made, with one exception, there

are no such rights or interests of a person under

that Act. The only exception is this: that as

Your Honours have recognized, you can have a

statutory right once you make a claim to have that

claim determined by the Land Commissioner; in other
words, to have a finding made that you are the

traditional owners. That is a right, and that is a right which could, in our respectful submission, be

preserved by section 210, but there is no right to a grant. In our respectful submission, therefore, section 210(c) does not operate so as to continue

in a force and effect the granting provisions of

the Land Rights Act. If that had been the

intention given the obvious repugnancy of the two

regimes, a provision of the sort set out in

Pareroultja(2) 87 12/4/94

section 7, in our respectful submission, would have

been necessary.

Your Honours, for those reasons we would

respectfully submit that the Native Titles Act also

gives us a separate argument.

MASON CJ: Thank you, Mr Sullivan. The Court will adjourn

now rather than continuing	with the argument at
this stage and will resume	at 10.15 am tomorrow
morning.

AT 4.05 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 13 APRIL 1994

12/4/94

Pareroultja(2) 88