Queensland v Congoo - [2015] HCA 17

HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, KIEFEL, BELL, GAGELER AND KEANE JJ
STATE OF QUEENSLAND APPELLANT
AND
TOM CONGOO & ORS RESPONDENTS
Queensland v Congoo
[2015] HCA 17
13 May 2015
B39/2014
ORDER
Appeal dismissed with costs.

On appeal from the Federal Court of Australia
Representation
S E Brown QC with G J D del Villar for the appellant (instructed by Crown Law Brisbane)
S A Glacken QC with P D Herzfeld for the first respondents (instructed by North Queensland Land Council)
J T Gleeson SC, Solicitor-General of the Commonwealth and S B Lloyd SC with C J Klease for the second respondent (instructed by Australian Government Solicitor)
No appearance for the third respondent
Submitting appearance for the fourth to twenty-first respondents
No appearance for the twenty-second and twenty-third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Queensland v Congoo
Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests.
Words and phrases – "clear and plain legislative intention", "exclusive possession", "extinguishment", "inconsistency of rights", "possession".
National Security Act 1939 (Cth), s 5(1).
National Security (General) Regulations 1939 (Cth), reg 54.

FRENCH CJ AND KEANE J.
Introduction

In September 2001, the Bar-Barrum People lodged an application in the Federal Court for a determination of native title over an area of land in the Atherton Tableland in the State of Queensland, part of which had been used by the Commonwealth during World War II as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units. The Commonwealth took possession of the land and used it pursuant to a series of orders, made between 1943 and 1945, under reg 54 of the National Security (General) Regulations ("the National Security Regulations"). That regulation was made pursuant to s 5 of the National Security Act 1939 (Cth) ("the NSA"). The Commonwealth relinquished possession of the land in August 1945. Questions arose in the Federal Court proceedings about whether the orders had the effect of extinguishing the native title rights and interests of the Bar-Barrum People.
In August 2013, Logan J referred a Special Case to the Full Court of the Federal Court setting out questions about the effect of the military orders on the native title rights and interests of the Bar-Barrum People. The question in the Special Case relevant to this appeal was Question 3:
"Did the act of the Commonwealth in:
(a)making the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land, and, if not,
(b)being in physical occupation of at least some of the special case land pursuant to the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land or that part of the special case land that had been physically occupied?"
The Full Court of the Federal Court by majority (North and Jagot JJ, Logan J dissenting) answered both limbs of Question 3 in the negative[1]. The State of Queensland appeals to this Court by special leave granted on 4 September 2014. For the reasons that follow the appeal should be dismissed.
[1]Congoo v Queensland (2014) 218 FCR 358.
The National Security Act 1939 (Cth)
The NSA was a draconian measure with a sunset clause. The Bill for the Act was described by Prime Minister Menzies in his Second Reading Speech as granting "wide powers to the Executive"[2]. The Prime Minister went on to say, however[3]:
"That whatever may be the extent of the power that may be taken to govern, to direct, and to control by regulation, there must be as little interference with individual rights as is consistent with concerted national effort. That, I believe, is the principle that should guide any executive armed with powers of this kind."
That qualification was indicative of a legislative purpose to affect existing rights as little as possible. That was a purpose which, in its application to property rights, was reflected in decisions of this Court construing the Act, reg 54 and orders made under that regulation[4]. It informs their construction in relation to this appeal.
[2]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 September 1939 at 164.
[3]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 September 1939 at 164.
[4]Syme v The Commonwealth (1942) 66 CLR 413; [1942] HCA 29; Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] HCA 4; Minister for Interior v Brisbane Amateur Turf Club (1949) 80 CLR 123; [1949] HCA 31, which are discussed later in these reasons.
The NSA was to continue in operation "during the present state of war and for a period of six months thereafter"[5]. That period was amended in 1940 to end on "a date to be fixed by Proclamation, and no longer, but in any event not longer than six months after His Majesty ceases to be engaged in war"[6]. In 1946 the Act was further amended so that it and all regulations under it and all orders, rules and by-laws made in pursuance of any such regulations would cease to have effect at midnight on 31 December 1946[7].
[5]NSA, s 19.
[6]National Security Act 1940 (Cth), s 9.
[7]National Security Act 1946 (Cth), s 2.
Section 5(1) of the NSA originally empowered the Governor-General to make regulations for securing the public safety and defence of the Commonwealth and the Territories of the Commonwealth, and in particular:
"(b) for authorizing—
(i)the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking; or
(ii)the acquisition, on behalf of the Commonwealth, of any property other than land in Australia".
Paragraph (b)(ii) was amended in 1940[8].
[8]National Security Act 1940 (Cth), s 5. Section 8 of that Act, which inserted s 13A into the NSA, also authorised regulations under which persons could be required "to place themselves ... and their property at the disposal of the Commonwealth". No regulation based on that section was in issue in these proceedings.
The term "property" in par (b) was not defined. It is a term which may be used in different senses according to its statutory context. Referring to land, it may mean the physical entity or rights and interests which exist in relation to it[9]. In par (b)(i) it applies to land as a physical entity. The words "possession" and "control" in par (b)(i) are close to synonymous in that context. That view is supported by the observation of Williams J in Minister of State for the Army v Dalziel in which he said of the difference between pars (b)(i) and (b)(ii) that[10]:
"The Parliament ... in enacting the section, intended to distinguish between the taking of temporary possession or control of land and the acquisition of some permanent estate or interest in land".
That distinction did not prevent the characterisation of "possession", taken pursuant to a regulation made under par (b)(i), as an "acquisition" of property for the purposes of s 51(xxxi) of the Constitution. Nevertheless, as construed by Williams J, par (b)(i) conferred a regulation-making power with respect to property limited to its temporary control. It is the exercise of that power which is in issue in this case.
[9]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 276 per Latham CJ. See generally Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230–231 [44]; [2008] HCA 7; White v Director of Public Prosecutions (WA) (2011) 243 CLR 478 at 485 [10]–[12] per French CJ, Crennan and Bell JJ; [2011] HCA 20.
[10](1944) 68 CLR 261 at 306.
Under s 5(3) of the NSA, the regulations could empower persons, or prescribed classes of persons, to make orders for any of the purposes for which regulations were authorised to be made by the Act. Section 10 of the Act made it an offence for a person to contravene, or fail to comply with, any provision of a regulation made under the Act or any order made pursuant to such a regulation.
Queensland submitted that the NSA authorised the making of regulations under which a "right of exclusive possession" could be conferred upon the Commonwealth by military orders made pursuant to the regulations. That "right of exclusive possession" was said to have been conferred in this case and to have extinguished the native title rights and interests of the Bar-Barrum People in the land affected by the orders. The submission directs attention to the difficult concept of "possession" as used in the Act and the important distinction between "exclusive possession", which is a logical incident of actual, factual or physical possession[11], and a "right of exclusive possession". A "right of exclusive possession"[12] in relation to fee simple grants and leases, as discussed by this Court in Fejo v Northern Territory[13] and Western Australia v Brown[14], involves the right to exclude anyone and everyone from the land for any reason or no reason at all. However, as appears below, the statutory powers conferred upon the Commonwealth as an incident of the grant of "possession" under the military orders were not unqualified merely because that word was used. Broad as they were, they were to be exercised in accordance with the scope, subject matter and purpose of the NSA and the regulations made under it.
[11]Gray and Gray, Elements of Land Law, 5th ed (2009), par 2.1.10.
[12]See generally Hill, "The Proprietary Character of Possession", in Cooke (ed), Modern Studies in Property Law, Volume 1: Property 2000, (2001) 21 at 26–30.
[13](1998) 195 CLR 96 at 128 [47]; [1998] HCA 58.
[14](2014) 88 ALJR 461 at 468 [36]; 306 ALR 168 at 175‒176; [2014] HCA 8.
The scope and limits of those powers may be discerned by reference to the text of reg 54.
The National Security Regulations — Regulation 54
Regulation 54 of the National Security Regulations, as it stood in November 1943, provided, inter alia:
"(1) If it appears to the Minister of State for the Army to be necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.
(2)While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation, the land may, notwithstanding any restriction imposed on the use thereof (whether by law or otherwise), be used by, or under the authority of, that Minister for such purpose, and in such manner, as he thinks expedient in the interests of the public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community; and that Minister, so far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land in pursuance of this sub-regulation—
(a)may do, or authorize persons so using the land to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest; and
(b)may by order provide for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise.
(3)The owner or occupier of any land shall, if requested by the Minister of State for the Army or a person thereto authorized by him so to do, furnish to that Minister or such person as is specified in the request such information in his possession relating to the land (being information which reasonably may be demanded in connexion with the execution of this regulation) as is so specified."
Regulation 54(1) empowered the Minister to "take possession of any land". The word "possession" is one for which English law has never worked out a completely logical and exhaustive definition[15]. The question in this case is: what was the nature of the possession which reg 54(1) authorised? There are two relevant possibilities. The first is that it authorised a taking of actual or physical possession, which, as noted above, brings with it a notion of exclusivity albeit it must be understood in its statutory setting[16]. The second possibility is that it conferred a "right of exclusive possession", equivalent to the unqualified right of a fee simple owner to exclude anyone and everyone from the land for any reason whatsoever.
[15]Tabe v The Queen (2005) 225 CLR 418 at 423 [7] per Gleeson CJ; [2005] HCA 59.
[16]J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436 [41] per Lord Browne-Wilkinson, 445‒446 [70] per Lord Hope of Craighead.
The text and arrangement of the regulation, read as a whole, suggest that reg 54(1) was concerned with actual possession and did not authorise the conferral upon the Commonwealth of a "right of exclusive possession". Regulation 54(2) conferred statutory power to do the things that a fee simple owner could do and the power, by order, to restrict the exercise of the rights of persons relating to the land, whether by virtue of an interest in the land or otherwise. If reg 54(1) authorised an order conferring a "right of exclusive possession" in the sense used above, the powers in reg 54(2) would be otiose. That suggests that reg 54(1) did not go that far[17]. Moreover, reg 54(2) conferred statutory powers not property rights, albeit it did so in par (a) using the legal fiction of a fee simple grant. Those powers had to be exercised for the purposes of the regulation, which had to accord with those of the NSA. The limiting negative purpose of the NSA apparent from the Second Reading Speech is antithetical to a general discretion to exercise those powers against anyone and everyone for any reason whatsoever.
[17]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9.
If the preceding construction be correct, there is no necessary legal antinomy between the grant of the rights authorised and the powers conferred by reg 54 on the one hand, and the subsistence of pre-existing rights and interests including native title rights and interests on the other. That conclusion is reinforced by reg 54(3), which assumes a continuing relationship between the land and "the owner or occupier" of it. As appears below, the compensation provisions rest upon a similar premise.
When reg 54 was originally promulgated it included reg 54(4) in the following terms:
"Such compensation shall be payable for any damage or loss sustained by the owner or occupier of the land by reason of the taking of possession of the land, or of anything done in relation to the land in pursuance of this regulation, as is determined by agreement, or in the absence of agreement, by action by the claimant against the Minister in any court of competent jurisdiction."
The compensation was not payable by way of "quid pro quo" for the taking by the Commonwealth but for loss or damage sustained by the owner by reason of the taking under reg 54(1) and the exercise of powers under reg 54(2). The loss or damage in contemplation was concerned with the loss or damage to existing rights by the exercise of the overriding right.
A new compensation regime was created under the National Security Regulations in 1941[18] for a person who had suffered, or was suffering, loss or damage by reason of anything done in pursuance of reg 54 in relation to[19]:
"any property in which he has, or has had, any legal interest, or in respect of which he has, or has had, any legal right".
Absent any method of fixing compensation under regulations other than the National Security Regulations, the compensation to be paid would be determined by agreement, or by the Minister or a compensation board on referral by the Minister pursuant to a request by the claimant[20]. Where the claim was in respect of a continuing interference with rights, the claimant could seek compensation by way of a periodical payment during the continuance of the interference. The claimant could also, within two months after the cessation of the interference, submit a further claim in respect of any loss or damage suffered by reason of anything done during the period of the interference (except damage resulting from war operations) which had not been made good and was not covered by the periodical payment[21]. The scheme appears to have assumed, as with the former reg 54(4), the continuation of the underlying rights of the owner or occupier, the enjoyment of which was impaired or prevented for the period of the Commonwealth's occupation of the land.
[18]National Security (General) Regulations (Amendment) (SR No 291 of 1941), cl 3, inserting National Security Regulations, regs 60B–60M. Those regulations were further amended by the National Security (General) Regulations (Amendment) (SR No 402 of 1942).
[19]National Security Regulations, reg 60D(1)(a).
[20]National Security Regulations, regs 60D(1), 60E(3)–(5), 60F(1).
[21]National Security Regulations, reg 60D(1).
The existence of that assumption is supported by observations in Syme v The Commonwealth[22], in which the Court was concerned with a claim by a mortgagee, not in possession, for a proportion of the compensation paid by the Commonwealth to the mortgagor, who was in possession at the time of the taking pursuant to reg 54. The mortgagee argued that the periodical compensation was analogous to "rents and profits of the land", which, upon default in payment of principal or interest, the mortgagee was entitled to receive pursuant to s 151 of the Transfer of Land Act 1928 (Vic). In rejecting that proposition Latham CJ observed[23]:
"Compensation under the Regulations is not paid in respect of the taking away of any part of the property or of any incident of the property. It is paid for the loss or damage suffered by the person to whom it is paid — in this case, the mortgagor."
Williams J, who also rejected the proposition that the Commonwealth was in any sense a tenant of the land, said[24]:
"Its title to possession does not depend upon any express or implied agreement made with any persons interested in the land, but is paramount to and overrides any other statutory or common law or equitable rights existing in any person with respect to possession. It is therefore a right, the exercise of which can cause loss and damage, not only to the person in possession of the land at the date of the entry, but to any persons who become entitled to such possession at any time during the intrusion. The loss or damage arising from time to time from the intrusion is of the same nature as the loss or damage caused from time to time by a continuing trespass." (citation omitted)
[22](1942) 66 CLR 413.
[23](1942) 66 CLR 413 at 421. See also at 424 per Starke J.
[24](1942) 66 CLR 413 at 429.

The exercise of the powers conferred by reg 54 may be said to have overridden pre-existing rights, but that overriding operation, while potentially affecting their enjoyment and exercise, did not involve their extinguishment.
The military orders
Five successive orders were made over the native title land between 1943 and 1945, each order revoking or cancelling its predecessor. The form and content of each was substantially similar. Each commenced with a recital that it appeared to the person making the order "to be necessary and expedient in the interests of the public safety, the defence of the Commonwealth and the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, on behalf of the Commonwealth to take possession of the land described in the Schedule to this order" and to give the directions set out in the order in connection with taking possession of the land. There followed the substantive exercise of the power conferred by reg 54. The following text is taken from the order signed by Colonel Francis North on 20 December 1943:
"[Now therefore] I, acting in pursuance of the said Regulation and Instrument of Delegation, [do hereby] on behalf of the Commonwealth, [take possession] of the said land [and do hereby order and direct] as follows:
1.I direct that the Deputy Assistant Quartermaster General Number 17 Lines of Communication Sub Area or any person or persons authorised by him occupy the said land and in so doing and so far as is practicable use the existing means of access to the said land and if necessary cause to be removed therefrom all personal property not the property of the persons occupying the said land in pursuance of this order and not required for Commonwealth purposes.
2.I authorise the person or persons specified in Paragraph 1 hereof to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest.
3.While the said land remains in possession of the Commonwealth, no person shall exercise any right of way over the land or any other right relating thereto, whether by virtue of an interest in land or otherwise.
4.Should the said land be the subject of any previous order such order is hereby cancelled so far as it affects the said land."
A schedule to the order set out a description of the affected land.
At about the time the first of the orders was made the Commonwealth physically occupied at least some of the land. It was used as an artillery range and as a live fire manoeuvre range for the training of infantry and armoured units who were preparing to deploy to the South West Pacific area. Occupation by the Commonwealth ceased on or about 31 August 1945.
In Dalziel, the Court was concerned with the characterisation, for the purpose of s 51(xxxi) of the Constitution, of a military order under reg 54 whereby the Commonwealth took possession of vacant land in Sydney owned by the Bank of New South Wales and occupied by Mr Dalziel under a weekly tenancy. Queensland relied upon Dalziel for the proposition that the Commonwealth's possession pursuant to reg 54 and the military orders was "plainly exclusive of the rights of all others". To the extent that this proposition equates the authorisation of exclusive possession as an incident of actual, factual or physical possession with the right of exclusive possession, which is necessarily inconsistent with the continued existence of other rights in the same land, it cannot be accepted. In particular, that equation is not supported by the terms of reg 54 itself. As Williams J explained, notwithstanding its conferment of exclusive possession, the military order did not determine any estate or interest in the land. The owner continued to be the owner in fee simple and the tenant continued to be a tenant from week to week. Their rights continued to exist "subject to the statutory right of the Commonwealth to take possession of the land and to use it for the purpose authorized by the regulation"[25]. His Honour said[26]:
"Under the regulation, therefore, the Commonwealth acquires by compulsion a right for an indefinite period to the possession and use of land previously vested in some person ... by virtue of some estate or interest in the land which that person owns at common law. That person has therefore been divested of the right to possess the land so long as the Commonwealth continues in possession."
The right of possession was held by the majority to be a property right[27], which informed the affirmative answer to the question whether there had been an acquisition of property within s 51(xxxi) of the Constitution. That answer was nevertheless consistent with the proposition that the military order conferred on the relevant Commonwealth officer control of the land which did not involve the determination of any pre-existing estate or interest in the land.
[25](1944) 68 CLR 261 at 301, although, as Rich J observed at 286, the Minister had seized and taken away from Mr Dalziel everything that made his weekly tenancy worth having and left him with "the empty husk of tenancy".
[26](1944) 68 CLR 261 at 301.
[27](1944) 68 CLR 261 at 285 per Rich J, 290 per Starke J, 295 per McTiernan J, 299 per Williams J.
Starke J, who dissented on the question whether the regulations provided for "just terms" but was part of the majority on the question of acquisition, said[28]:
"Nothing is gained by comparing the right given by reg 54 to the Commonwealth with various estates or interests in land of limited duration or with rights over the land of another recognized by the law, for it is a right created by a statutory regulation and dependent upon that regulation for its operation and its effect."
Latham CJ, who dissented on whether the possession conferred under the regulation could be an acquisition, nevertheless accurately described the operation of reg 54 and orders made under it when his Honour said[29]:
"The rights of the Commonwealth are to take and remain in possession of the land and to use it for purposes of defence. In such use, but only for the purposes of such use, the Commonwealth has the rights of an owner in fee simple." (emphasis added)
[28](1944) 68 CLR 261 at 290.
[29](1944) 68 CLR 261 at 278.
Consistently with what was said in Dalziel, the Commonwealth submitted in this appeal that the right which it had acquired over the land pursuant to the successive military orders was a right of possession for the purposes specified in reg 54, which was to have no effect on the continuing existence of any other rights or interests in the land but only temporarily on their exercise. That characterisation, which accords with a characterisation of the possession under reg 54 as "actual possession", also accords with the approach adopted by this Court in Minister for Interior v Brisbane Amateur Turf Club[30], which concerned Commonwealth occupation of land pursuant to an order made under reg 54, and a claim for compensation by the lessee of the land, who, during the occupation, continued to pay the owner rent reserved under the lease. In rejecting a submission that the owner had no power to grant a lease during the period of occupation, Latham CJ rejected an argument, by analogy, based on concurrent leases and said[31]:
"in the present case the Commonwealth comes in by paramount right for an indefinite period without and independently of any grant by the owner. In my opinion there is no principle of law which prevents the owner granting a lease which will be subject to the rights of the Commonwealth under the regulations."
Dixon J held that the Commonwealth was in "actual possession" under a statutory right enabling it to occupy at its will and said[32]:
"I see no reason why the right to possession should not be granted by a lease although the Commonwealth was in actual possession."
McTiernan J agreed with both Latham CJ and Dixon J[33].
[30](1949) 80 CLR 123.
[31](1949) 80 CLR 123 at 148.
[32](1949) 80 CLR 123 at 162.
[33](1949) 80 CLR 123 at 163.
The actual possession or control conferred by the military orders considered in Dalziel and in Brisbane Amateur Turf Club did not extinguish pre-existing possessory rights. The character of the orders in those cases was inconsistent with the grant of a "right of exclusive possession".
Paragraph 3 in each of the military orders does not alter that conclusion. It prohibited the exercise of rights of way over the land or any other right relating to the land. It did not provide for their extinction. Indeed, par 3, like reg 54(2)(b), expressly contemplated their continuing existence.
The question that follows is whether the native title rights and interests of the Bar-Barrum People were extinguished by the military orders made in relation to that land under reg 54, in terms similar to those considered in Dalziel and Brisbane Amateur Turf Club. The question directs attention to the content of the native title of the Bar-Barrum People.
The native title rights and interests
It was agreed in the Special Case that, subject to the extinguishing effect of the military orders, the Bar-Barrum People would hold at least non-exclusive native title rights and interests over the Special Case land. Those rights would include rights of access, to be present and move about, travel over, camp and live temporarily on the land as part of camping, and for that purpose to build temporary shelters. Absent extinguishment they would also have a non-exclusive right to hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes. They could take and use natural resources including water from the land and its waters for non-commercial communal purposes. They could conduct ceremonies on the land, be buried and bury native title holders there, maintain places of importance and areas of significance under their traditional laws and customs, protect those places and areas from physical harm, and teach on the land about its physical and spiritual attributes. They could hold meetings on the area and light fires on it for domestic purposes, including cooking, but not for the purposes of hunting or clearing vegetation. The people could use the land in a variety of ways. They could not possess it to the exclusion of others.
The reasoning of the Full Court
The majority in the Full Court held that, in making reg 54, the Commonwealth (evidently a reference to the Executive Government) intended that all rights and interests in the land should yield to its exclusive possession for the duration of its exercise of power under reg 54. Those rights should otherwise continue and could found an entitlement to compensation for interference with them[34]. Although the native title rights could not be exercised during the Commonwealth's exercise of power, they were not thereby suspended. The rights which the Commonwealth took to itself were not inconsistent with the continued existence of native title rights[35]. Its exclusive possession was for a limited purpose, for a limited time, and on the premise, apparent from the legislative scheme, that all underlying rights and interests should continue[36]. With respect, the way in which the Full Court approached the question of legislative purpose was erroneous. The criterion of extinguishment is and remains one of inconsistency. The purpose of the statute said to effect or authorise extinguishment plays a part in determining the construction of that statute and, flowing from that construction, the nature and content of the powers it confers and the rights which may be granted under it.
[34](2014) 218 FCR 358 at 376 [52].
[35](2014) 218 FCR 358 at 376 [53].
[36](2014) 218 FCR 358 at 376 [53].
Their Honours also accepted a submission by the Commonwealth that the creation of a document styled "military order" did not of itself amount to taking possession of the land which it affected[37]. Given that reg 54 applied throughout Australia, and potentially to all types of land, something more than the completion of a form by a delegate had to be done to take possession. What had to be done might vary depending on the land in question[38]. As appears below, it is not necessary to consider the correctness of that conclusion.
[37](2014) 218 FCR 358 at 378 [63].
[38](2014) 218 FCR 358 at 378 [64].
Logan J, in dissent, correctly identified the relevant question as one of inconsistency. His Honour held that, objectively viewed, the comprehensive rights enjoyed by the Commonwealth in respect of the land by virtue of reg 54(2) and the terms of the military orders were inconsistent with any continued enjoyment of any of the rights claimed by the Bar-Barrum People[39]. The delegate's direction that "no person shall exercise any right of way over the land or any other right relating thereto" was destructive of the native title rights claimed, not regulatory[40]. There was no relevant distinction to be drawn between a grant, such as a grant of an estate in fee simple or a leasehold estate, giving exclusive possession and the taking of possession by the Commonwealth of the land pursuant to the military orders[41]. Those propositions were, with respect, founded upon an incorrect assessment of the operation and effect of the possession taken by the Commonwealth.
[39](2014) 218 FCR 358 at 391 [110].
[40](2014) 218 FCR 358 at 391 [111].
[41](2014) 218 FCR 358 at 391 [112].
Grounds of appeal
The first ground of appeal is that:
•The Full Court erred in holding that the military orders made pursuant to reg 54 of the National Security Regulations did not have the effect of extinguishing all the native title rights and interests with respect to the Special Case land.
The second ground of appeal, which only arises if the first ground fails, is that:
•The Full Court erred in holding that reg 54 of the National Security Regulations did not allow the Commonwealth to take possession of the Special Case land simply by the making of orders purporting to take possession of that land.
Extinguishment at common law
The recognition of native title rights and interests translates aspects of an indigenous society's traditional relationship to land and waters into a set of rights and interests existing at common law. The metaphor of "recognition" reflects the proposition that the common law cannot transform traditional laws and customs, the relationships to country which they define, or the rights and interests to which, in their own terms, they give rise. Nor can it extinguish them. "Extinguishment" describes the result of applying principles by which common law recognition is withheld or withdrawn in the face of legislative or executive acts affecting the land or waters in which native title is said to subsist.
It was held in Mabo v Queensland [No 2] that a clear and plain intention is necessary to effect extinguishment whether directly by legislation or by executive act or grant pursuant to legislative authority[42]. Where the alleged extinguishing act or grant is done by the executive pursuant to legislative authority, the necessary intention to authorise such an act must be attributable to the legislature. The high threshold of attributed legislative intention flows from the seriousness of the consequences of extinguishment for indigenous inhabitants[43]. So a law which merely regulates the enjoyment of native title or creates a regime of control consistent with its continued enjoyment does not, on that account only, reveal an intention to extinguish or impair native title rights and interests[44].
[42](1992) 175 CLR 1 at 64 per Brennan J (Mason CJ and McHugh J agreeing at 15), 195 per Toohey J; [1992] HCA 23.
[43](1992) 175 CLR 1 at 64 per Brennan J.
[44](1992) 175 CLR 1 at 64 per Brennan J. See also Yanner v Eaton (1999) 201 CLR 351 at 397 [115] per Gummow J; [1999] HCA 53; Akiba v The Commonwealth (2013) 250 CLR 209 at 230 [33] per French CJ and Crennan J; [2013] HCA 33; Karpany v Dietman (2013) 88 ALJR 90 at 92 [5], 95 [22], 97 [32]; 303 ALR 216 at 218, 222, 224; [2013] HCA 47.
Where legislation empowers the Crown to dedicate land for a public purpose the question whether the power reflects a clear and plain intention that native title affected by its exercise would be extinguished may sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Where the exercise of the power does not involve the grant of an interest in land or the reservation or dedication of land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable[45].
[45]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 68 per Brennan J.
The clear and plain intention standard for extinguishment formulated in Mabo [No 2] is an important normative principle informing the selection of the criterion for determining whether a legislative or executive act should be taken by the common law to have extinguished native title. That standard has not been displaced by any subsequent decision of this Court. The settled criterion for its satisfaction, which has been established in the case of the grant of rights over land or waters pursuant to a statute, as explained in Western Australia v Ward[46], is inconsistency between the rights granted and the propounded native title rights and interests. Application of that criterion involves "an objective inquiry which requires identification of and comparison between the two sets of rights"[47]. An analogous criterion is applicable where legislation or a legislative instrument affecting the use of land or waters is concerned. The question of extinguishment is able to be answered by determining whether or not the provisions of the legislation or legislative instrument were inconsistent with the continuing recognition by the common law of the particular native title holders' rights and interests[48]. Where a grant of an estate in fee simple or a lease in perpetuity conferring a right of exclusive possession is concerned, inconsistency is readily demonstrable. Where a right or power is conferred for a statutory purpose and is to be exercised for that purpose, inconsistency is not demonstrated by the fact that the repository of the right or the power may use it to prevent the native title holders from exercising or enjoying their rights.
[46](2002) 213 CLR 1; [2002] HCA 28.
[47](2002) 213 CLR 1 at 89 [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[48]Karpany v Dietman (2013) 88 ALJR 90 at 94 [19]; 303 ALR 216 at 221.
The enquiry as to inconsistency begins with the construction of the statute, an exercise which is properly informed by its purpose[49]. In this case the limiting negative purpose to which reference has been made earlier is important to the construction of the NSA, reg 54 and the military orders. The comparison between the statutory rights and powers created and exercisable over the Bar-Barrum People's land, with their asserted native title rights and interests, follows upon the constructional exercise. That process is not to be confused with the normative question, answered by way of conclusion from the consideration of inconsistency, namely whether the statute discloses a clear and plain intention to extinguish native title.
[49]Wilson v Anderson (2002) 213 CLR 401 at 417–418 [7]–[8] per Gleeson CJ; [2002] HCA 29.
The "clear and plain intention", demonstrated by the inconsistency of statutory rights and powers and native title rights and interests, and necessary to a finding of extinguishment, is not the subjective intention of the relevant legislature, nor is it that of the executive authority making a grant. Nor is it an intention, the presence or absence of which is to be determined by reference to the awareness or otherwise of the existence of native title rights and interests when the statute was enacted or the grant made[50]. That approach is consistent with the approach of this Court to the place of legislative intention in statutory interpretation in Project Blue Sky Inc v Australian Broadcasting Authority[51], Zheng v Cai[52] and Lacey v Attorney-General (Qld)[53]. Attributed legislative intention is a conclusion arising from the application of accepted rules of construction, both common law and statutory.
[50]Western Australia v Ward (2002) 213 CLR 1 at 89 [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[51](1998) 194 CLR 355; [1998] HCA 28.
[52](2009) 239 CLR 446 at 455–456 [28]; [2009] HCA 52.
[53](2011) 242 CLR 573 at 591–592 [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10.

In the case of the claimed extinguishment of native title, the settled approach to determining extinguishment by operation of legislation or a legislative instrument, reflected in earlier decisions of this Court, was restated in the joint judgment of Hayne, Kiefel and Bell JJ in Akiba v The Commonwealth[54]:
"This Court held in Western Australia v The Commonwealth (Native Title Act Case) that, at common law, native title rights and interests can be extinguished by 'a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title'." (footnotes omitted)
The normative force of the clear and plain intention standard is reflected in the inconsistency criterion. So much appears from Yanner v Eaton, in which the plurality said that the "extinguishment of such rights must, by conventional theory, be clearly established" (emphasis added)[55]. That criterion is not satisfied merely by the identification of restrictions or controls placed on the use of the land by statute or executive act done pursuant to statutory authority. Queensland submitted that the Commonwealth had a right of exclusive possession inconsistent with the continued existence of native title rights and interests. That approach lifts the statutory conferment of "possession" out of its context, disconnects it from its statutory purpose, and thereby misconceives its legal effect.
[54](2013) 250 CLR 209 at 240 [61].
[55](1999) 201 CLR 351 at 372 [35] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
The possession granted to the Commonwealth, and the powers conferred as an incident of that possession, authorised the preclusion of native title holders for a time, or from time to time, from entering onto the land or waters. It may be taken to have impaired their enjoyment of their native title. However, where the law, as in this case, imposes a control regime which has a limiting purpose of not disturbing subsisting rights and interests, and where that purpose limits the scope of the rights granted and the powers conferred by the law, the impairment cannot be said to be inconsistent with the subsistence of native title rights and interests. It cannot support the conclusion that there was a "clear and plain legislative intention" to extinguish native title.
In this case the position is clear. The military orders authorised, although they did not mandate, the preclusion, for their duration, of the exercise of the native title rights and interests of the Bar-Barrum People. The powers which they conferred were not unconfined. They could not support a finding of inconsistency between the statutory scheme and the native title rights and interests of the Bar-Barrum People which would lead to the conclusion that their rights or interests were extinguished.
Conclusion
For the preceding reasons, the first ground of appeal fails. Having regard to the basis upon which it fails, the second ground of appeal does not arise. The appeal should be dismissed with costs.
HAYNE J.
The issue
During World War II, pursuant to regulations made under the National Security Act 1939 (Cth), a delegate of the Minister of State for the Army made orders ("the reg 54 orders") directing a particular officer to occupy certain land, authorising that officer to do anything in relation to the land that the holder of a fee simple could do by virtue of that interest and prohibiting all other persons from exercising "any right of way over the land or any other right relating thereto". Did the reg 54 orders extinguish native title rights and interests in respect of that land?
A majority of the Full Court of the Federal Court of Australia (North and Jagot JJ, Logan J dissenting) held[56] that the reg 54 orders did not extinguish native title rights and interests. By special leave, the State of Queensland appeals against so much of the orders made by the Full Court as answered a question raising that issue in a special case reserved for the consideration of the Full Court. The appeal should be allowed. Other questions reserved by the special case, including a question about the application of s 51(xxxi) of the Constitution to the extinguishment of native title, were not the subject of the appeal and are not considered in these reasons.
[56]Congoo v Queensland (2014) 218 FCR 358.
The determinative point
The majority in the Full Court held[57], and in this Court the first and second respondents (the Bar‑Barrum people and the Commonwealth) submitted, that the objective intention, or statutory purpose, of the reg 54 orders (and the provisions pursuant to which they were made) was that "all rights and interests in the land should yield to the Commonwealth's exclusive possession" for the duration of the war (and up to six months beyond) "but should otherwise continue and found rights of compensation for the interference to those rights thereby resulting".
[57](2014) 218 FCR 358 at 376 [52] per North and Jagot JJ.
Part of that proposition is plainly right. All rights and interests in the land were to yield to the Commonwealth's taking of exclusive possession. And the Commonwealth was to take exclusive possession of the land only for the duration of the war (and up to six months beyond).
But the remainder of the proposition, however expressed, does not follow. It is both legally and logically wrong to say that the "objective intention" or "statutory purpose" of the reg 54 orders or the laws pursuant to which they were made was to "preserve" all previously existing rights.
The conclusion that native title rights and interests were not extinguished by the reg 54 orders is legally flawed. It takes as its premise a legal proposition for which there is no support: that native title rights and interests are extinguished only if an intention to extinguish is discernible in the reg 54 orders and the provisions pursuant to which they were made. That premise, and the conclusion which is drawn from it, are both contrary to the accepted doctrine established and unfailingly applied in this Court in a succession of cases decided over more than 20 years. And no party made any submission suggesting that any of those cases was not rightly decided. These reasons will show that the conclusion reached by the majority in the Full Court, and urged by the Bar‑Barrum people and the Commonwealth, can be reached only by applying tests for the extinguishment of native title rights and interests which this Court has expressly rejected.
The statement of "intention" or "purpose" is also logically flawed. It is no more than an unfounded assertion that there was no extinguishment of native title rights and interests because those rights and interests were not extinguished. Even if it is accepted as a premise that native title rights and interests are extinguished only if an intention to extinguish is discernible in the reg 54 orders and the provisions pursuant to which they were made, to state that there was an "intention" or a "purpose" to preserve all rights and interests (including native title rights and interests) leads to circular reasoning. Assuming or asserting as a second premise that there was an "intention" or "purpose" to preserve all rights and interests (then recognised or not) assumes the answer to the question that must be answered. It assumes the answer by conflating two separate inquiries. The first is an inquiry about the effect of the reg 54 orders and the provisions which authorised their making. That inquiry is answered by concluding that the Commonwealth took exclusive possession of the land for only a limited but uncertain time. The second, and separate, inquiry to make is about the effect of that taking on native title rights and interests. Assuming or asserting that there was an "intention" or "purpose" of preserving all rights and interests (then recognised or not) leads to circular reasoning. And those problems would be compounded if the statement about "intention" or "purpose" were to be understood as inviting attention[58] to what the Parliament, the Executive or the Commonwealth as a polity "wanted" to achieve. Any inquiry of that kind would be anachronistic. Native title rights and interests were not recognised in the 1940s.
[58]cf (2014) 218 FCR 358 at 361 [6] per North and Jagot JJ.
These reasons proceed as follows. First, the relevant legislative provisions and the terms of the reg 54 orders are described. Next, the native title rights and interests and the rights of possession taken by the orders are identified. The principles governing extinguishment of native title rights and interests are then stated and applied to this case. Finally, the content and utility of notions of "intention" and "purpose" in this field of discourse are examined and particular reference is made to those tests for the extinguishment of native title rights and interests which this Court has rejected.
National Security (General) Regulations 1939 (Cth)
Section 5(1)(b) of the National Security Act 1939 authorised the Governor‑General to make regulations authorising the taking of possession or control on behalf of the Commonwealth of any property or the acquisition on behalf of the Commonwealth of any property other than land. Regulation 54(1) of the National Security (General) Regulations 1939 (Cth) ("the Regulations") provided that, if it appeared to the Minister of State for the Army to be necessary or expedient to do so in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, the Minister "may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land". Regulation 54(2) permitted the Minister to "authorize persons so using the land to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest". It further permitted the Minister, by order, to "provide for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise".
The reg 54 orders
Between 1943 and 1945, a delegate of the Minister of State for the Army, acting under reg 54 of the Regulations, made five orders with respect to land in which the Bar‑Barrum people have since claimed native title rights and interests. Each order related to land in the same general area near Herberton and Atherton in North Queensland, but the borders of the land affected were not identical. The first order covered 167.4 square kilometres. The second order did not include all of the eastern part of the land covered by the first order and covered 153.3 square kilometres. The third, fourth and fifth orders covered 186.1 square kilometres, 199.4 square kilometres and 254.9 square kilometres respectively. The last three orders covered all the land which was subject to the second order but included more land to the south‑west and west. Each order was annotated in a manner which indicated that the land was to be used by the Army as an artillery range.
Each of the reg 54 orders stated that the officer making the order, acting in pursuance of the Regulations and the instrument delegating authority to him to make the order, "[DOES] HEREBY on behalf of the Commonwealth, TAKE POSSESSION of the said land". Each of the orders directed an officer (or persons whom that officer authorised) to occupy the land and authorised that officer (and other authorised persons) "to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest". Each order further provided that, while the land remained in the possession of the Commonwealth, "no person shall exercise any right of way over the land or any other right relating thereto, whether by virtue of an interest in land or otherwise".
No party to the appeal alleged that the reg 54 orders were made beyond power or are otherwise infirm. All said, rightly, that the reg 54 orders must be read and understood against the background of the National Security Act 1939 and the Regulations. But it is not necessary to trace that background in any detail. It is enough to observe that the parties accepted that each of the reg 54 orders would have ceased to take effect no later than the time fixed by s 19 of the National Security Act 1939 as the period of operation of that Act: the duration of the war and six months thereafter.
Some agreed facts
The proceedings in the Full Court of the Federal Court were by way of special case. For the purposes of that special case, the Bar‑Barrum people and the State agreed that, subject to the effect of the reg 54 orders, the Bar‑Barrum people hold "at least non‑exclusive native title rights and interests" over the land (in effect) to go onto the land, to camp there, to hunt, fish and gather for personal, domestic and non‑commercial communal purposes, to conduct ceremonies, to be buried there, to maintain places of importance and areas of significance, to teach the physical and spiritual attributes of the area, to hold meetings there and to light fires for domestic purposes. Those parties further agreed that, at about the time of the first order, "the Commonwealth physically occupied at least some of the [land] in that the Commonwealth used at least some of the [land] as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units preparing to deploy to the South West Pacific area". The parties agreed that the Commonwealth ceased physically to occupy any part of the land on or about 31 August 1945.
Taking possession
The Bar‑Barrum people and the Commonwealth submitted that there had to be some "manifestation of the intention to take possession" of the land beyond the making of the reg 54 orders. The Commonwealth's intention to take possession of this land to the exclusion of all others was evidently made plain by bombarding the land with live artillery fire and using it for live fire military manoeuvres. But the proposition that there must be some manifestation of an intention to take possession beyond the making of the relevant reg 54 order is not right.
The reg 54 orders took effect according to their terms. The orders were the assertion by the Commonwealth of rights over the land, not the grant of any right or bundle of rights to a third person. The assertion of those rights was for a limited time of uncertain duration. It was an assertion which could be made only upon the decision‑maker being satisfied of the matters stated in the Regulations. But, being satisfied of those matters, the officer who made an order, by making it, took possession on behalf of the Commonwealth of the land specified in it.
The possession which the Commonwealth thus took was possession to the exclusion of all others. Each order authorised an identified officer (and persons whom that officer authorised) to occupy the land. Not only was this officer (and other authorised persons) authorised "to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest", others having "any right of way over the land or any other right relating thereto" were not permitted to exercise that right. No doubt anyone could have asked for permission to go onto the land. But if, as all parties have assumed in this litigation, the reg 54 orders were valid, that permission could be refused for any reason or no reason. Permission could be refused because the Commonwealth had taken possession of the land. And taking possession had been judged to be necessary and expedient in the interests of the public safety, the defence of the Commonwealth and the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community. The connection between using the land as an artillery range and live fire manoeuvre range and the defence of the Commonwealth is evident. By the reg 54 orders the Commonwealth took exclusive possession of the land.
Extinguishment of native title
In Western Australia v The Commonwealth (Native Title Act Case)[59] the six members of this Court who had constituted the majority in Mabo v Queensland [No 2][60] said that "[a]t common law ... native title can be extinguished or impaired by a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title". That valid exercise of sovereign power may take the form of creating rights in third parties (for example, by the grant of an interest in land). But it may also take the form of the relevant sovereign authority itself asserting or taking rights in or over the land (for example, by some forms of dedication of land to public purposes[61]). The determinative question in either kind of case is whether the rights granted or asserted are inconsistent with native title rights and interests over the land.
[59](1995) 183 CLR 373 at 439 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; [1995] HCA 47.
[60](1992) 175 CLR 1; [1992] HCA 23.
[61]Mabo [No 2] (1992) 175 CLR 1 at 68 per Brennan J; Western Australia v Ward (2002) 213 CLR 1 at 136 [214]‑[215] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; [2002] HCA 28.
Hence, in Fejo v Northern Territory[62] this Court held that native title is extinguished by a grant in fee simple and is not revived if the land is later held again by the Crown. As the plurality pointed out[63] in Fejo, native title is extinguished by a grant in fee simple "because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title". That conclusion "follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title"[64] (emphasis added).
[62](1998) 195 CLR 96; [1998] HCA 58.
[63](1998) 195 CLR 96 at 126 [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
[64](1998) 195 CLR 96 at 128 [47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, citing Mabo [No 2] (1992) 175 CLR 1 at 68 per Brennan J.
It is against this background, then, that the decision in Western Australia v Ward[65] must be understood. And despite the degree of attention given in argument in this case to only one paragraph of what was written in Ward[66], what was said by the plurality in that case cannot be read as altering or detracting from what was then, and remains, the established doctrine of this Court.
[65](2002) 213 CLR 1.
[66](2002) 213 CLR 1 at 91 [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
Common law extinguishment of native title rights and interests depends upon only one test: inconsistency of rights. As the plurality said[67] in Ward, "[t]wo rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment." And "[a]bsent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise"[68] (emphasis added). Rather, questions of inconsistency require identification of, and comparison between, the two sets of rights, recognising always that one set of rights derives from traditional law and custom and the other set derives from the exercise of the new sovereign authority that came with European settlement.
[67](2002) 213 CLR 1 at 91 [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[68](2002) 213 CLR 1 at 91 [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

That construction of reg 54(2)(b), as providing the sole source of power to exclude persons having pre-existing rights to be on the land, is significant in two respects. One is that, by the terms in which it was expressed as well as by the nature of the power it conferred, reg 54(2)(b) expressly acknowledged the continuing existence of all such pre-existing rights irrespective of the source of those rights. The other is that the most that reg 54(2)(b) permitted to happen by order was prohibition of the exercise of those rights for the inherently temporary period which defined the maximum life of the regulations: "not longer than six months after His Majesty ceases to be engaged in war"[214]. The existence of that prohibition was logically consistent with (indeed it was premised on) the continued existence of the rights the exercise of which was temporarily prohibited.
[214]National Security Act 1940 (Cth), s 9.
If I were to interpret reg 54 as having conferred a right on the Commonwealth (under reg 54(1)) or a power on the Minister (under reg 54(2)(a)) to exclude persons who had pre-existing rights to be on the land, I would still not hold the regime of control created by reg 54 to have extinguished the rights and interests possessed by the Bar-Barrum people under their traditional laws and customs. In those circumstances, I would agree with the reasoning in the antepenultimate paragraph of the reasons for judgment of French CJ and Keane J[215].
[215] At [38].
The right of the Commonwealth or power of the Minister to exclude persons who had pre-existing rights to be on the land, on that alternative interpretation of reg 54, would still not have been to exclude anyone from any or all of the land for any purpose. It would at most have been a limited purposive right or power to exclude, relevantly indistinguishable from those conferred on the lessees of the mining leases whose "exclusive possession" for mining purposes was held not to extinguish native title rights in Western Australia v Ward[216]. That holding illustrates the proposition that a right or power conferred for a statutory purpose, to be exercised for that purpose, is not inconsistent with native title holders continuing to hold rights or interests under their traditional laws and customs which remain recognised by the common law merely because an exercise of that right or power might prevent native title holders from exercising or enjoying those rights or interests[217].
[216](2002) 213 CLR 1 at 165-166 [307]-[308], 172 [326], 174 [331].
[217] See also Western Australia v Brown (2014) 88 ALJR 461 at 464 [8], 468 [36], 469 [46], 471 [55]-[57], 472 [63]; 306 ALR 168 at 170, 175-181.
For these reasons, I agree with French CJ and Keane J that the appeal should be dismissed with costs.