Pareroultja & Ors v Tickner

[1994] HCATrans 207

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl56 of 1993

Bet w·e en -

JANICE PAREROULTJA, DULCIE

JUKKAOAI, 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

Pareroultja 1 11/2/94

BRENNAN J
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 1994, AT 2.16 PM

Copyright in the High Court of Australia

MR A.J. SULLIVAN, OC:  May it please Your Honours, I appear

for the applicants with my learned friends,

MR C.R. McDONALD and MS H.L. DELANEY. (instructed by James Noonan)

MR I. Mee. BARKER, OC: 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 J.J. SPIGELMAN, OC: If the Court pleases, I appear with

MR T.F. ROBERTSON for the second respondents.

(instructed by David Avery, Solicitor for Central

Land Council.

BRENNAN J: Yes, Mr Sullivan?

MR SULLIVAN:  Your Honours, this case involves, as

Your Honours will doubtless know from reading the

papers, consideration of the interaction of common

law native title with the Land Rights Act and, if

we are permitted to argue it, a further interaction
with the Native Titles Act in the light of, of

course, a fourth Act of the Commonwealth being the

Racial Discrimination Act. We would seek special

leave based on four alternative reasons. First, we

say that the granting provisions combined with the

management provisions of the Land Rights Act do

contravene section 10(3) of the Racial

Discrimination Act with the result that to the extent they so do, they are rendered inoperative by section 10(3) of the Racial Discrimination Act.

GAUDRON J:  Does your argument take off from a point where

native title falls within the Land Rights Act,

apart from the other matters?

MR SULLIVAN: 

Yes. This argument under 10(3) assumes the

correctness against us of the fact that the Land
Rights Act does apply to native titles, to common

law native title land, and that common law native

title is not affected by that Act. That is the

10(3) argument.

The section 10(1) argument, which is our second argument, based on the Racial Discrimination

Act, is that the granting provisions in the Land
Rights Act offend section 10(1) of the Act, and

that section is not relevantly a special measure

and so protected.

Our third submission to Your Honours is that in the very peculiar circumstances of this case a construction of the Land Rights Act should be had

whereby it excludes from the definition of "Crown

land" land in respect of which there is common law

native title.  We say that the construction

Pareroultja 2 11/2/94

argument is in unusual circumstances because, in

our respectful submission, it is quite plain that

the Land Rights Act was enacted upon an assumption,

subsequently proved to be misplaced, that there was

no enforceable common law native title in Australia

and that since its purpose was apparently to exempt

from the operation of the Land Rights Act land in respect of which there was interests in land held

by others, we would say it would be anomolous to

interpret it so as to effectively extinguish native

title.

The fourth submission which we will be seeking

to make, and it is one which could not, of course,
have been raised below, is that the passage in

December this year of the Native Titles Act has implications for this case because by sections 55

to 58 of that Act native titleholders are given a
statutory choice; the statutory choice being a

right to hold the native title by themselves or,

alternatively, to have it held for them in trust by

a prescribed body corporate. That regime, we

respectfully submit, is incompatible with and

repugnant to the regime under the Land Rights Act

where no such choice is afforded. Rather, there is

a compulsory scheme of management by a land council

and/or a land trust.

If we might then turn to the first basis upon

which we seek special leave and that is under the

provisions of section 10(3) of the Racial

Discrimination Act. Your Honours have considered

this legislation, of course, on several occasions

and most notably, for present purposes, in the two

Mabo cases.

I should add that the Full Federal Court appeared to reject our arguments based on

section 10(3) on two bases: first, upon what I

call the "special measure" basis, and saying that

irrespective of the validity of our arguments, none

the less section 10, including section 10(3) was a

special measure and therefore the Racial

Discrimination Act did not apply.

The second basis upon which they seem to distinguish it is that the Land Rights Act amounted

to an implied repeal of the Racial Discrimination

Act in relevant aspects, and I will deal with those

briefly.

Could I take Your Honours first to

section 10(3). It renders, subject'to

subsection (1), a law authorizing property to be

owned by Aborigines to be managed by others without

the consent of the Aborigines. That is 10(3)(a).

In our respectful submission and upon the

Pareroultja 11/2/94

assumption that our clients are common law native

titleholders, th~ rights that they have there,

irrespective of the categorization of those rights

- and we are aware of the differences expressed by

various members of the Court in Mabo (No 2) - that

the rights they have there by reason of their

common law native title, in our respective

submission, amount to property owned by Aborigines.

Your Honours will recall that in Gerhardy v Brown and in Mabo (No 1) Your Honours indicated

that those words should be given a very wide

meaning and attach to any right or interest in

land. Certainly, if Justice Brennan's view in Mabo

(No 2) is correct that common law native title is a

proprietary right, and we respectfully submit it

is, then that falls within the definition of

"property owned".

Secondly, quite clearly, by the Acts

Interpretation Act, section 22(a), a land council and/or a land trust is another person for the purposes of 10(3)(a). The regime of the Land Rights Act - again, with which Your Honours are

well familiar - is that once a grant is made it

must be made to a land trust which is subject, in

all .relevant respects, to. th.e .. directions of a land

council. In this case, we would imagine it would

be the Central Land Council. The Act sets out

detailed provisions relating to the management then

of land: the right to grant leases, mining leases
et cetera. And those powers are exercised by the
land council, having to take into account in

certain respects, of course, the wishes of the

traditional owners.

But the regime is imposed compulsorily by the

Act and irrespective, of course, of whether or not

the common law native titleholders, people who own the property, in our respectful submission, within

the relevant requirements of section 10(3)(a) are	submission, therefore, under the Land Rights Act, 10(3)(a), consent to it. In our respectful
met.

BRENNAN J: What is the effect of that?

MR SULLIVAN:  I will just come to that right now,

Your Honour. The effect of that is this: because

the management provisions are inextricably linked
with the granting provisions of the Land Rights

Act, you cannot have a grant unless the regime of

management is also imposed. If the management

provisions cannot apply so that you cannot compel

the Aboriginals, the native titleholders, to be

subject to a management regime, in our respectful

submission, the grant could not be made either.

Pareroultja 11/2/94

The only power to make a grant is in accordance

with the Act and in accordance with those

management provisions. If they fall, in our

respectful submission, then any purported grant

cannot be made.

They discriminate, in our respectful

submission, within 10(1) for this reason. Again,

applying the language Your Honours used

particularly in Habo (No 1), they single out, these granting and management provisions, only one set of persons in Australia who have an interest in the

land and that is - - -

BRENNAN J:	I could understand this argument operating in relation to a State law but you have got here two
federal laws.
MR SULLIVAN:	Yes, Your Honour.

BRENNAN J: And one provides a specific regime in relation

to land rights under the Land Rights Act in the
Norther Territory and there is this general
provision in 10(3) of the Racial Discrimination

Act.

MR SULLIVAN:  Yes, Your Honour. What Your Honour is

adverting to, I think with respect, is the

repugnancy or the implied repeal type argument

which found favour with the Full Court. We would

respectfully submit that it is unlikely the

intention of the Parliament was, by implication or otherwise, to repeal the Racial Discrimination Act.

BRENNAN J: It is not a question of repeal, is it, it is a

question of the way in which you interpret two Acts

together.

MR SULLIVAN:	Yes, Your Honour.
BRENNAN J: And the scope you give to each of them.
MR SULLIVAN:	Yes.  In our respectful submission, the scope

you give to them is to say that the provisions of

the Racial Discrimination Act are overarching and it is only to the extent to which the Land Rights

Act - grants thereunder - can be made which do not

contravene the Racial Discrimination Act, that

those grants can be valid. The reason for that we
simply say is this, that this is the seminal act of

Parliament prohibiting racial discrimination.

The historical accident, in our respectful

submission, which brings about this unsatisfactory

state of affairs is that of course when both these

Acts were passed they were passed upon the basis -

or pre-Habo (No 2) - where no one thought that

Pareroultja 5 11/2/94

there would be any such discrimination because no

one thought there was a common law native title.

In that circumstance, we would respectfully submit,

quite clearly Parliament did not turn its mind to

an eventuality which has arisen, namely, what

happens when there is common law native title and

the Land Rights Act applies and/or the Racial

Discrimination Act.

We would respectfully submit that the Racial

Discrimination Act is specifically enacted to give

force to Australia's international obligations,

that it is not lightly to be inferred that it was

intended that its operation be cut down by a

subsequent piece of legislation in circumstances of

an eventuality which clearly did not entertain the

minds of the legislators at the time.

If we are right in that view, in our

respectful submission, it follows inextricably that

these provisions do offend and are struck down by

sections 10(1) and 10(3) in combination because

even if the Land Rights Act is otherwise a special

measure, the operation of the Act is not saved

because in the Racial Discrimination Act itself it

is specifically provided that 10(3) is not a

special measure. So that, in other words, it is

not protected upon the same basis as the relevant

legislation is protected in Gerhardy v Brown.

That is our first submission and, in our

respectful submission, if those submissions are

upheld, and irrespective of any other submissions

we make, the Full Federal Court was in error in the

reasons it gave.

The second basis upon which we put the case,

Your Honours, is this, that the granting provisions

of the Land Rights Act themselves contravene

section 10(1) without any need to look any further.

The simple reason for that is this: under the Land

Rights Act the only persons whose interests may be

affected by a grant are common law native

titleholders because land cannot be the subject of

a land claim if there is any other estate or
interest as defined in the Act in respect of that
land such as common law tenure or statutory tenure.

The only exception to that is where the established

title is held by Aboriginals themselves, and then

that cannot be the subject of a land rights claim

unless those Aboriginals who hold that title

expressly consent to it.

So, the Act makes it plain, if you like, that

it is not to apply where there are existing

estates or interest in land. The only exception as

a result of Mabo (No 2) would be in respect of

Pareroultja 6 11/2/94

common law native titleholders. Effectively,

therefore, the effect of the legislation of the

Land Rights Act is to discriminate within the meaning of section 10(1) because of all the people

that hold rights or interest in respect of a

particular land which could be the subject of a

claim, only one can be effected without their

consent.	We would respectfully submit, therefore,
argument as to the effect of the Racial	that on the face of it, subject to the construction
Discrimination Act in the light of the Land Rights Act and subject to it being a special measure, that the granting provisions would need to be struck down or "overridq.en" - I think the language of this
Court was - to give effect to that.

We submit that notwithstanding what

Your Honours said in Gerhardy v Brown, section 10

of the Racial Discrimination Act does not amount to

a special measure because - I withdraw that.	The
provisions of the Land Rights Act which give a

power to grant land to traditional owners is not a

special measure and the reason for that, in our

respectful submission, is this, that if, as now is

the case, it is recognized that there is common law

native title in respect of the land then there is

no need, if you like, or certainly not the same
need to give a statutory title or title held in

trust under the Land Rights Act and, indeed, we

would respectfully submit that the fourth of the

indicia of Your Honour Justice Brennan in Gerhardy

v Brown is not met.

Secondly, we would say that, in any e~ent, by

reason of the Native Titles Act which provides for a complete code in respect of native title, in our

respectful submission, the need for that measure no

longer exists and so, in accordance with the proviso to the convention, it no longer is a special measure.

If I might then turn to the third of our arguments, and this is the argument based on the

construction. It requires, as our written

submissions make plain, for Your Honours to read

into the definition of "Crown land" an exclusion,

namely, that Crown land does not include land in

which there is valid common law native title. We

would respectfully submit there is power for the

Court to do that construction task where, by

inadvertence or otherwise, Parliament has

overlooked an eventuality. There is a well-known

passage, as Your Honours will recall, of

Justice McHugh in Kingston v Keprose which

discusses that principle. It has been adverted in

several cases in this Court, I think, and one was

the case of Saraswati.

Pareroultja 11/2/94

Here, in our respectful submission, at the

time the Land Rights Act was passed, it was down on

a mistaken assumption, namely that common law

native title did not exist. Given the obvious

intention of the legislature in passing the Land

Rights Act not to affect existing rights and

interests, in our respectful submission, consistent

with that intention and to cover the eventuality

which they overlooked, namely that common law

native title existed, the Act should be construed

so as to exclude from its ambit the concept of a

land to which there is common law native title. In

our respectful submission, that would give rise to

not an Act withou~ any force; quite the contrary,

because one of the benefits of the Land Rights Act

is that where native title has been lost, none the

less a grant can be made under the Land Rights Act.

The final argument we wish to raise - - -

BRENNAN J:  Does that mean that you would construe the

definition of "unalienated Crown land" where it
refers to "land in which no person has an estate or

interest" as inapplicable to land in respect of

which Aboriginal owners have native title?

MR SULLIVAN:  Yes, Your Honour. Alternatively, to add to

the definition of "Crown land", which is subsumed
within the definition of "unalienated Crown land",
a limitation to the effect of "other than land in

respect of which there is valid and subsisting

title."

BRENNAN J: Yes.

MR SULLIVAN:  Your Honour, the fourth point we wish to raise

is based upon the passage of the Native Titles Act.

We respectfully submit that argument is open to us

but in view of the time constraints, perhaps

because it has been taken against us, we can deal

with why we say the Court can consider this on an	appeal in my reply. But, essentially, our argument	is this, that sections 55 to 58 of the Native Title
Act confer the choice I have adverted to by
Your Honours, namely, a choice, where the
determination of native title is to be made, that
the native title holders can determine also whether they wish the land to be held on trust for them or
that title be held on trust for them or,
alternatively, held in their own right.
The Land Rights Act regime is incompatible with that because there is no such choice. In our
respectful submission, since the latter Act is
quite clearly applicable to land in the Northern
Territory, applies in the present circumstances,
and it is intended, in our respectful submission,

Pareroultja 11/2/94

to cover the field, in effect, the earlier Act, the

Land Rights Act, to the extent to which it is

inconsistent or takes away that choice, must be

read subject to that and that therefore, in effect,

because of that repugnancy the provisions of the provision to the Land Rights Act.

Unless I can assist Your Honours further, they

are our submissions in-chief.

BRENNAN J: Thank you, Mr Sullivan. Mr Sullivan, the grant

of special leave in this case seems to us to depend

on issues involved in the questions asked in the

stated case, the materiality of those questions and

prospects of success on the appeal. Now, those are

matters which are themselves issues which could

best perhaps be determined by a Full Bench of this

Court. What submissions do you have to make as to whether it may be appropriate to adjourn this
application to be renewed before a Full Bench which
would then proceed to determine both the question
of whether special leave should be granted and, if

granted, how the appeal should be determined.

MR SULLIVAN:  Your Honour, we would not oppose that course.

Indeed, we would respectfully submit that the

questions raised are both novel and of far-ranging

importance and we would respectfully submit that

that may be an appropriate course.

BRENNAN J: Yes, thank you. Mr Barker and Mr Spigelman,

could we have your responses to that inquiry first

before we hear any further submissions from you.

MR BARKER:  Your Honour, consistently with our submission

that special leave should not be granted which

carries with it the further argument that an appeal

could not succeed, in my respectful submission, the

matter ought to be disposed of by this Court as

presently constituted.

BRENNAN J: Mr Spigelman?
MR SPIGELMAN: We would adopt that, Your Honours.	If

Your Honours are against us on the proposition that

the Full Court was plainly right, then we make no

submission that the matter is not one of public

importance. May we say, however, that if that

course finds any favour with Your Honours,
something has to be done about the proposal to

argue the Native Title Act. It is not part of the

pleadings or the special case or some indication

is required as to whether that is in or out and we

would have thought, with respect, that Your Honours

would be able to either deal with that matter or to

Pareroultja 9 11/2/94

make such directions as would ensure that it is put

in a proper form.

DEANE J:  But if it were decided by the whole Court that the

matter should proceed to a decision on the merits,

it would be an extraordinary approach, would it

not, to disregard the new legislation?

MR SPIGELMAN:  No. If it were to proceed on the merits then

one would anticipate at some level - perhaps at the

single judge of the Federal Court level - there

would be an amendment to the pleadings. But that

has not been done, even at this stage, and

obviously it has not been considered by the

Full Court. We have always taken the position that

the issues involved on the stated case, and even

more so on the Native Title Act, depend on

questions of fact that have never been determined.

There was never a determination of the nature or

incidence of the native title sought to be advanced

on behalf of the applicants and in that situation

questions like 10(3) and what "management" means

and what interference there is with management

cannot be decided.

There may also be evidence of special measure.

None of that has been decided at all and we would

have thought that any addition of the Native Title

Act would complicate that problem further. But our

basic proposition is, obviously, that the judgment

below is not attended by sufficient doubt. Now, if

that is not blindingly clear then, plainly the

matter is one of public importance. We have other

difficulties which we have mentioned in our written

submissions.

BRENNAN J:  The difficulty about it is that one can see

various lines of argument that might be based upon

this passage or that in the several judgments and

it is undesirable, perhaps, for a Court of three as

presently constituted to determine matters which

may affect or may be affected by the views taken by

other members of the Court as to those issues.

MR SPIGELMAN: All of the judgments, with the possible

exception of Justice Toohey, were ad idem that

there were arrangements over land to which native

title attached including questions of trust and

other matters which did not extinguish native

title. Now, at least six of Your Honours - and I

could take Your Honours to detailed references if

Your Honours wished - indicated that there would be

such arrangements. The effect of the decision of

the Full Federal Court that drew on all of those
expressed, perhaps somewhat differently, but we say
the Full Court found to the same effect relevantly,

in the two judgments, that of Your Honour the

Pareroultja 10 11/2/94

presiding Judge and that of the joint judgment of the other members of today's bench, that although

maybe expressed in different words, on either test

there was no inconsistency between a grant on the

Land Rights Act and common law native title.

Now, it is true that Justice Toohey may have

expressed himself somewhat differently but in that

respect he was on his own. So, we say the basic
proposition is there is incapable of being an
inconsistency because the operations under the

Land Rights Act are entirely consonant with both

the ownership and management regime of common law

native title. That was our case before, that there

is no alienation to a third party. we have

indicated the references and the judgment below

indicated what they were.	Your Honours are aware
of it.

BRENNAN J:  We do not need you to develop this argument.

DEANE J: Mr Spigelman, could I just ask you this: what if

the bench as presently constituted thinks, in all

the circumstances of this case, the question

whether the points that are desired to be relied on

are arguable is one that should be determined by a

Full Bench, what would you say we should then do?

MR SPIGELMAN:  If Your Honours were of that view,

Your Honours would - - -

DEANE J: Refer it to a Full Bench.

MR SPIGELMAN:  Absolutely. I do not see any other step.

DEANE J: That being so, all the other problems which you

have so convincingly daunted me with really are

something that the Full Bench will have to cope

with.

MR SPIGELMAN:  In due course, if that was the course

Your Honour intended to impose on his brethren.	If
the Court pleases.

BRENNAN J: Yes, Mr Barker. Mr Barker, obviously it would

be of assistance to us if you were to address, at

least in the first instance and perhaps entirely,

the question of why the matter should not be

referred to the Full Bench.

MR BARKER:	Your Honours, I would do that by repeating, of course, our primary submission that special leave
should not be granted at all. Then, perhaps, I should put - - -
BRENNAN J:	You may be right but should not a Full Bench

determine it?

Pareroultja 11 11/2/94

MR BARKER:- Your Honour, with respect, the points of

argument as framed and presented by the applicant

raise issues which are appropriate to be dealt

with by the Court as presently constituted, and we

say that because, if Your Honours accepted our

argument which, of course, supports the judgment of

the Full Federal Court, although an issue of public

importance was raised by this litigation, it is no

longer a live issue because the judgment of

Their Honours in the Federal Court is not attended

by doubt.

You see, my friend led off with the arguments

concerning the application of sections 10(1) and

Racial Discrimination Act Land submit, is that the Land Rights Act exists quite

10(3) of the to the

independently of the Racial Discrimination Act and

Parliament, clearly, did not intend that it would be read subject to the Racial Discrimination Act.

It came second and it is itself essentially

discriminatory. As Mr Justice Lockhart said at

page 51 of the application book, it is

inconceivable that in passing the Land Rights

(Northern Territory) Act, that Parliament intended

that its operation or effect should be constrained

by the earlier Racial Discrimination Act.	If I
might just read from line 35:

The Land Rights Act is an Act of the

Parliament dealing comprehensively with the

particular subject matter reflected by its

long title, namely, the grant of traditional

Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other

purposes. A comprehensive code or scheme was

enacted to achieve this end.

The Land Rights Act is essentially

discriminatory in its nature; it confers

rights and privileges upon Aboriginal

Australians which are discriminatory as
against non-Aboriginal Australians. That
discrimination is the essence of the Act; it

is the foundation on which it is structured.

And he referred to Gerhardy v Brown.

GAUDRON J: But that paragraph assumes there is no common

law native title. The paragraph itself is based on

false assumptions or arguably so.

MR BAR.KER: Because, as the Federal Court found and as we

argue, the whole purpose of the Lands Right Act was

to give statutory protection to the incidence of

what the High Court now recognizes as common law

native title. It was to give protection to those

Pareroultja 12 11/2/94

people in that Act called "traditional owners", now

called "connnon law native titleholders" -

protection to their land and to give them the

uninterrupted freedom to live traditionally in the

way spoken about by Your Honours in Mabo (No 2).

In other words, it was a statutory regime

designed to give protection to those very interests

which were under consideration in Mabo (No 2),
which the Parliament could do, of course, because

it was dealing with a territory. So, therefore we

argue it is very difficult to see that the

Parliament intended that the Northern Territory Act

which is essentially discriminatory should be

subject to the Anti-Discrimination Act.

If it be subject to the construction which my

learned .friend urges upon Your Honours, that is the

constricted definition of "Crown land", it would

have almost nothing to do. What that would do to

previous grants is something one would have to

consider but it is difficult to imagine that it

would have anything to do, at least anything to do

as Parliament contemplated it would do, that is,

protect those very interests which my learned

friend says are taken away.

BRENNAN J:  It would still have limited application to the

lands which were scheduled lands, would it not?

The ones which were Arnhem Land, for example.

MR BARKER:	Yes, even there, Your Honour, if it be right that the Native Titles Act is to be read as being
inconsistent with the Land Rights Act and, in a sense, superior to it, well, possibly - and this
needs to be thought through - those Schedule 1
lands are all subject to claim under the Native
Titles Act. Now, it may be that they are. Our
argument all along has been that the Land Rights
Act did not extinguish native title, it preserved
it. If, as a consequence of that, all that land is
to be the subject of determinations under the
Native Titles Act, perhaps there will be a duality
of control.
The precise working out of this is something which, I must confess, is at the moment beyond me
but - - -

BRENNAN J: Perhaps it should be a matter for the Full Bench

to consider.

MR BARKER:  That is not a matter that need concern this

Court in respect of this application. That is the

point we make. You see, this application in the

Northern Territory has been on foot for many years.

The Connnissioner reconnnended that a grant be made

Pareroultja 13 11/2/94

and the Minister has a statutory duty to	determine
whether or not the grant should be made.	Now, it
is at this point that the processes stop	because of
these proceedings.

It is difficult to conceive, as a matter of

law, that the Minister can be enjoined from

carrying out his statutory duty simply because it

may be open to the applicants to seek a

determination under the Native Titles Act. Perhaps this is not the moment to take Your Honours through

it but the Act itself makes very plain that it will

sit with the Land Rights (Northern Territory) Act.

Indeed, section 14 validates that Act and grants

made under that Act because, if one goes to later

sections, the Land Rights Act itself and Acts of an executive nature or ministerial nature under it are

Acts attributable to the Commonwealth. So it and

they are valid and deemed to have always been

valid. It expressly preserves rights and interests

under the Land Rights Act by virtue of section 210.

GAUDRON J:  Does it say anything as to the future?

MR BARKER: Yes, Your Honour. It excludes from the

definition of "future acts" grants made under the

definition section. It defines "future acts"	Land Rights Act .... This is section 233 ( l) in the
which, for relevant purposes, may be taken to be
those referred to in 233(l)(a)(ii):

any other act that takes place on or after

1 January 1994 -

and if one goes to subsection (3), it provides:

Subsection (1) does not apply to .....

an act that causes land or waters to be held

by or for the benefit of Aboriginal peoples or

Torres Strait Islanders under a law mentioned

in the definition of "Aboriginal/Torres Strait

Islander land or waters" in section 253.

And that section takes in the Aboriginal Land

Rights (Northern Territory) Act. The effect of

that is that a grant - indeed, the grant in issue

here would not be an impermissible "future act"

within the meaning of the Native Titles Act, and I

refer there to section 22 of the Act.

Aside from those arguments, Your Honours,

there is the threshold argument that this point is

entirely new and has not been litigated and this

Court has consistently held, at least as far back

as Victorian Stevedoring and Meakes v Dignan, that

the right of appeal is to be limited to a

consideration of the law as it was at the time of

Pareroultja 14 11/2/94

the determination appealed against. That has been

of course, repeateq in a number of cases including'

the one cited in·our written submissions, Street v

The Queensland Bar Association.

If this Court were to embark upon an inquiry

into the issues raised by the Native Titles Act, it

would, with respect, be not considering an appeal

but sitting as a court of first instance, and the
appropriate court to deal with the matter is the

Federal Court where the point has not been

litigated.

BRENNAN J: That is assuming there are some questions of

fact involved.

MR BARKER:	Indeed, and of course there is a giant question of fact behind all this and that is whether there
is a common law native title which still exists
outside the protection of the Land Rights Act. For
example, there may well have been alienations in
the last century which do not affect the application of the Land Rights Act but which may
well have a significant effect if one looks to
define "native title" according to the exposition
in Mabo (No 2).

Your Honours, the other issue which seemed not

to be raised here is whether the Land Rights Act does in fact serve to extinguish native title. I

am not sure whether it is still a live issue but,

clearly, we submit - - -

GAUDRON J:  It is the whole premise of all the other

questions, is it not?

MR BARKER:  Your Honour, clearly, it cannot serve to

extinguish common law native title because a grant

under the Land Rights Act can do no more than

preserve the common law title and is entirely

consistent with it to the extent that it is defined

and is capable of definition. The problem always,

of course, is that it is merely case by case that

one can determine what the traditions are which

attach to the claim at hand. But nothing in the

Land Rights Act, we submit - and I refer

Your Honours to the sections set out in the Federal

Court judgment - is inconsistent with the

continuation of common law native title. We have

the local dissent group, the concept of biological

dissent, the concept of traditional attachment to

land, the concept of protection of sites and

protection of the land, and the concept that it

will endure in perpetuity for the benefit of all

those who are, from time to time, traditional

owners.

Pareroultja 15 11/2/94

So, if that is the base point, Your Honours, I

submit the application fails in limine. If the

Court pleases.

BRENNAN J:	Mr Spigelman.
MR SPIGELMAN:	Your Honours, I have very little to add to

what I said before. I jumped the gun a little, I

think, but if Your Honours are minded to refer the

matter to a Full Court, I take it that Your Honours

would be minded that the application for special

leave and the appeal be heard together?

BRENNAN J: Yes, if there·is an appeal.

MR SPIGELMAN:  Yes, Your Honours. But the crucial question

for us, I think, now is what happens with the

Native Title Act point because whilst the people at

this table are perhaps at ad idem on aspects of the

Native Title Act in terms of its validity, there

are others who are not and it may be that what is a

two-day case could become a much longer case by

reason of other applications and the precise nature

of the argument about the Native Title Act is

something that may require some definition,

particularly as it is not raised on the pleadings

pr the. st~te<icase in any way. With respect, we

would have thought that that was something that it

would be, at least, wise for Your Honours to do

rather than leaving to the Full Bench of this Court

so that we all know where we stand in terms of the

Native Titles Act rather than come back whenever it

is and have various State governments seeking to

intervene to argue points about it.

GAUDRON J:  No question arises as to its validity between

the parties, does it?

MR SPIGELMAN:  No, it does not. I am sorry, I assume that

is right.	I really have no instructions on the
matter.

GAUDRON J: Your clients do not raise one?

MR SPIGELMAN:  I would be very surprised if they do.

GAUDRON J: And the applicants rely on it.

MR SPIGELMAN: Well, yes, as do we.

MR SULLIVAN:	We do not question - - -
MR SPIGELMAN:	I do not wish to take Your Honours through our written submissions but we put, in
anticipation, a serious of steps that, we say,
validate - the Native Titles Act validate the
actions sought to be injuncted, namely, the grant

Pareroultja 16 11/2/94

of an estate in fee simple to a land trust. That

matter has not really been agitated in any way and,

obviously, Your Honours would not wish to do it

now. But before we have a full hearing, I think

everyone needs to know whether it is on the table

or not, and we would urge Your Honours to at least

make that decision yourselves as to whether or not

what I think is point l(h) in my friend's outline

of reasons, is something which is to be argued, in

which case we would wish to argue in response our

construction of the Native Title Act that it in

fact has the consequence of validating as a passed

Act - and the important thing about this Act to

understand is that most passed Acts have not

happened yet. I think the draftsman of the Income

Tax Assessment Act was responsible for part of this

legislation.

We say it validates, as a passed Act, what is proposed to be injuncted but we would wish to know

whether or not that matter is to be agitated.

Other than that, I think I have addressed the
substantive points Your Honours put to me before.
If the Court pleases.

BRENNAN J: The course which the Court proposes to take is to adjourn the application to be renewed before a

Full Bench that will determine whether special leave -should be granted and, if special leave is

granted, the fate of the appeal. The question of

whether it is open to argue the Native Title Act in the appeal seems to be itself, perhaps, a matter of

controversy and that question must therefore also

be determined by the Full Bench.

That said, there is no reason why the parties

should not, in the preparation of this matter, arm

themselves with whatever arguments are appropriate

on the footing that if the Native Title legislation

is to be argued they are ready to argue it when the

matter is returned before the Full Bench. Accordingly, the order of the Court is that

the application is adjourned for renewal before a

Full Bench of this Court.

AT 3.09 PM THE MATTER WAS ADJOURNED SINE DIE

Pareroultja 17 11/2/94