State of Western Australia & Alexander Brown and Jeffrey Brown and Clinton Cook and Charlie Coppin & BHP Billiton Minerals Pty Ltd and Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd

[2014] HCATrans 14

[2014] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P49 of 2013

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Appellant

and

ALEXANDER BROWN AND JEFFREY BROWN AND CLINTON COOK AND CHARLIE COPPIN

First Respondents

BHP BILLITON MINERALS PTY LTD AND ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD

Second Respondents

FRENCH CJ
HAYNE J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 2014, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   If it please your Honours, I appear with my learned friend, MR G.J. RANSON, for the appellant.  (instructed by State Solicitor (WA))

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friends, MR R.W. BLOWES, SC and MS C.L. TAN, for the first respondents.  (instructed by Yamatji Marlpa Aboriginal Corporation)

MR P.D. QUINLAN, SC:   May it please the Court, I appear with my learned friend, MS J.M. BURSLE, for the second respondents.  (instructed by Ashurst)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR D.F. O’LEARY, on the instructions of the Attorney‑General for South Australia seeking leave to intervene as amicus curiae.  (instructed by Crown Solicitor (SA))

FRENCH CJ:   You have that leave.  Mr Southalan.

MR J.L. SOUTHALAN:   Good morning, your Honour.  I represent Australian Lawyers for Human Rights who are seeking leave to appear as amicus curiae.  (instructed by Australian Lawyers for Human Rights)

FRENCH CJ:   Do you wish to add anything to what you have put in your written submissions as to the basis for your intervention?

MR SOUTHALAN:   No, sir.  On what we have seen in the parties’ submissions in reply there is nothing further we need to add.

FRENCH CJ:   Mr Southalan, the Court declines to accede to your intervention.

MR SOUTHALAN:   Thank you, your Honour.

FRENCH CJ:   You may be excused if you wish.  Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, subject to what your Honours have to say, the parties have had a discussion about the order of things.  What is proposed, your Honour, is my learned friend, Mr Quinlan, will follow me, and the Solicitor for South Australia will follow Mr Quinlan and Mr Walker will go after that, your Honours.

FRENCH CJ:   Very well.

MR DONALDSON:   Your Honours will have our oral outline.  Could I ask your Honours to look to the three maps that we have annexed to the outline?  I think my learned friend, Mr Walker, is going to hand some further maps up later.  Could I explain to your Honours what these maps are?  They are simply enlargements of material which is in the papers.  Your Honours, this is not new material.

The first of those maps, your Honours, shows the determination area, and your Honours will see on the shaded brown area, ML 235SA and the hashed boundary of that, and two sections, sections 1 and 2 of ML 249SA, 235 and 249 being the two mining leases.  Could I also point out to your Honours on this map that the pink areas are in the determination referred to as unclaimed areas.  They were never in fact claimed.  They were excluded from the area.  One of them is a special lease for rail, and that is the larger pink area, and the others are road reserves.

Could I point this out to your Honours?  Your Honours will see that – and it is easier with the rail reserve.  With the rail special lease reserves, your Honour, they extend beyond the area of the two mining leases, obviously on the right‑hand side of the map and towards the top left‑hand side of the map.  Her Honour Justice Bennett explained at paragraph 151 of her Honour’s reasons, which I need not take your Honours to, that the reason why the special leases for the rail and the road reserves were there was simply so that they joined up to the special leases and the road reserves that were outside of the determination area.  I will come to explain, your Honours, in due course the significance of that.

So that is the tenure that was on the particular determination area.  The next map, your Honours, again appears in the appeal book.  What we have done, your Honour, is simply, with the final map in that group of three, is to enlarge the second of those matters and if your Honours see that ML 235SA is the green area and the two sections of 249SA that were on the previous map, sections 1 and 2 are the pink areas that adjoin 235 and other sections of 249 are identified there. 

So the sections of 249 that are within the claim area are identified there and your Honours will see the different sections, 7, 8 and 9, for instance, that are within the determination area.  As I said, your Honours, that is simply a larger version of the map which precedes it.  We hope that that will in due course assist your Honours in understanding, when there is reference to sections in 249SA, what the references are.

Your Honours, this case involves the extinguishing effect of the two mineral leases 235SA and 249SA.  As your Honours have seen from that map, only part of 249SA is within the claim area.  Other areas substantially to the south of the determination area of 249 are excluded.  The central issue in this case, your Honours, of course, is to determine what are the rights attaching to the mining lease and to characterise those rights and to determine whether they are inconsistent with the determined native title rights. 

In relation to the lease, your Honours, could I start by taking your Honours to the terms of the State agreement.  That is in the bundle of agreed legislation.  If your Honours turn, please, to page 9 of the bundle, your Honours will see that that is the commencement of the relevant State agreement.  Your Honours no doubt are familiar with the general form of such agreements.  They, in effect, annex the legislation – the legislation annexed the agreement which is entered into by the parties.

The first operative clause for these purposes, your Honours, is clause 4 – could I ask your Honours to turn to that – on page 19.  Your Honours will see that the scheme of the agreement was, first, that there would be what is referred to as “Phase 1” obligations, which involved the joint venturers preparing a particular form of submission or proposal.  Clauses 4(1)(a) through to (g) identify the work that had to be undertaken in relation to those initial proposals. 

A more detailed proposal was contemplated by clause 5 and your Honours will see that that more detailed proposal, in subsection (2), was required to have been submitted by 31 December 1964.  One thing that emerges from clause 5, your Honours, is that it relates only to mining area “A”.  Your Honours will see, again, that set out in clause 5.(2)(a) are the particular matters that were to be the subject of the more detailed proposal at this second stage.  So, your Honours, there was required to be, over the page on 22, for instance, in (ii), a detailed proposal in relation to the railway between mining area “A” and Port Hedland and in relation to town sites, housing, water supply and the like.

FRENCH CJ:   Was mining area “A” contiguous with the area covered by the lease 235?

MR DONALDSON:   Yes, your Honour.  Your Honours will see in clause 6 of the agreement that there was a period of time within which the Minister could consider that proposal, and clause 7 provided for extensions of time.  Your Honours, if I could simply point out on page 25, the power of the Minister to reject the proposal could only be exercised prior to the grant of the mining lease.

HAYNE J:   What are we getting out of this history, Mr Solicitor?

MR DONALDSON:   I am taking your Honours through to clause 8(1) and (2) to identify to your Honours the extent of the purposes of the lease that was granted.  I am going to those clauses now, your Honour.  Clause 8(1) was a provision which provided for the grant of a mining lease prior to the commencement date, and clause 8(2), your Honour, refers to the detailed proposal which is to be submitted.  If I could ask your Honours to look at (b) on page 27, your Honours will see that the obligation on the State was to “grant” upon approval of the proposals:

to the Joint Venturers as tenants in common in equal shares in fee simple or for such terms or periods –

et cetera, the following –

for nominal consideration‑townsite lots;

. . . special leases –

and leases as set out in what actually is C.  Your Honours, unfortunately, there is a photocopying error.  That is A, B and C.  So, in addition to the grant of a mining lease under – or pursuant to this agreement, your Honours, there was also an obligation upon the State to grant these particular other titles if they were required by the joint venturers.  Again, your Honour, over at page 29, if I might, you will see clause 8(2)(c) which deals with various other purposes for which particular instruments can be granted.

I will go to the terms of the mining lease that was granted in a moment, your Honours, but before doing so can I make this observation?  I have taken your Honours to the area and your Honours have seen that there were only two forms of tenure other than the mining lease; a special lease for rail and some road reserves.  Her Honour Justice Bennett accepted that the reason why those were granted was simply so that the rail corridor and the roads were clearly defined and were contiguous with areas of the rail corridor and the road reserve outside of the determination area.

There was no need for the venturers to actually have granted to them a special lease for that rail corridor within the area of the mining lease and that is because the rights able to be exercised by the tenement holders pursuant to the mining lease that was granted included a right to construct the railway and roads.  So that special lease and those road reserves are simply there so that they join up at either end of the determination area with the rail reserve and the road reserve outside of the mining area.  So when reference is had to the purposes for which tenure is granted in this agreement, that is to be understood in light of the fact that everything that needed to be done to give effect to the purposes of the agreement and the interests of the party under this agreement were able to be done pursuant to the terms of the mining lease.

Your Honours, could I also point out clause 8(5)(b), that is on page 30.  I will not read that out for your Honours but simply leave your Honours to do so.  That provides that the area of the mining lease cannot be resumed.  That is a right more extensive, of course, than the right of a holder of a fee simple title, for instance.  Likewise, your Honour, there is a provision in the agreement to the effect that there can be no rezoning of the particular area of the mining leases as well, and I will take your Honours to that.

Your Honours will see in clause 9(1) there is set out what the obligations of the venturers are under this agreement.  Your Honours will see in 9(1)(a) that there was an obligation to:

construct install and provide . . . mining plant and equipment crushing screening stockpiling and car loading plant and facilities power house workshop and other things [required] –

In (c) there was an obligation to construct ‑

from mining area “A” to the Joint Venturers’ wharf [a railway] –

There was an obligation in (d) to construct roads.  Subclause (e) related to the wharf at Port Hedland, and (f) in accordance with the proposals that were submitted prior to the grant of the mining, or approval of those proposals and grant of the mining lease, there was an obligation to:

(ii)lay out and develop the townsites and provide adequate and suitable housing recreational and other facilities and services;

(iii)construct and provide roads housing school water and power supplies and other amenities and services; and

(iv)construct and provide other works (if any) including the airstrip.

FRENCH CJ:   Now, some of these obligations, is it right, were given statutory effect by clause 3(2)(a) of the agreement, read with section (4)(2)(b).

MR DONALDSON:   Correct.

FRENCH CJ:   The mining lease, ML235, does that combination of provisions also have the effect that the grant of that mining lease is the exercise of a statutory obligation imposed by that combined reading?

MR DONALDSON:   Yes, your Honour.  Once the proposal was made and approved there is an obligation to grant the mining lease.

FRENCH CJ:   But by statute, by reason of section 4, combined with 3(2)(a) and so forth?

MR DONALDSON:   Correct.  Your Honours, if I could point out, because something was made of this by my learned friends, at page 34 of the bundle there is another provision, clause 9, which deals with a particular reservation.  Your Honours will see that in (g) – that is 9(2)(g) – there was an obligation to:

allow the State and third parties to have access . . . over the mineral lease (by separate route road or railway) PROVIDED THAT such access over shall not unduly prejudice or interfere with the Joint Venturers’ operations hereunder –

We will come to address the possible significance of that, your Honours, in due course.  The provision that I referred to your Honour about town planning, that is 10(g) and that is on page 44, so they were required to “remain zoned” for the uses and purposes of the agreement.  Again, your Honours, that is a right in some respects more extensive than the holder of a fee simple title.

Your Honours, without taking the Court to them, your Honours will know that clause 11 of the agreement is a similar clause dealing with mining area “B”.  Mining area “B” is that of ML 249SA.  Although clause 11 also, your Honours, refers to mining area “C”, there is no part of mining area “C” within this determination area, so nothing in relation to mining area “C” is relevant.

There is an equivalent, your Honours, to clause 8(2)(b) in relation to mining area “B”, which is provided for in clause 12A, and that is in one of the various agreements, your Honours, and that is to be seen at page 147.  All that that does, your Honours, that particular provision, is reproduce the terms of clause 8(2)(b) that I have taken your Honours to in relation to mining area “B” and mining area “C”. 

Your Honours, as was accepted by all of the Honours who have looked at this matter below, one of the consequences of that statutory and State agreement background is that the rights conferred by the mining instrument, or the mining leases in this case, are more extensive than a mining lease granted under what might be thought of as traditional mining legislation because the purposes ‑ ‑ ‑

HAYNE J:   There may be separate rights arising under the agreement.  Why are the rights under the lease any different?

MR DONALDSON:   I am not suggesting that they are different, your Honour.  I am suggesting that the rights that are exercised and were exercised on the lease areas were exercised pursuant to the rights to do so under the lease instrument.  That was the only tenure that was needed to do it.

HAYNE J:   Therefore, what is the purpose of observing, as one does, that the agreement gave additional rights and obliged the State in ways that the mining lease itself did not?

MR DONALDSON:   The purpose of it, your Honour, is this, that when one looks to certain of the purposes that are set out in the State agreement that refer to the construction of town sites, railways, airstrips, power stations and the like, all of those matters were lawfully able to be done pursuant to the rights of the holders of the lease because of the lease.  They are not rights, your Honour, that are always conferred by or incidental to the grant of a mining lease.  That is the purpose, your Honour.  They had more extensive rights pursuant to this instrument to do things on the ground than holders of certain other types of mining leases might have.  Can I take your Honours then to the terms of the mining lease?  That is in the first volume of the appeal book.  The two mining leases are in identical form, your Honour; 235SA is at page 149.

FRENCH CJ:   The legal authority to grant the second lease, the clause 11 lease, is not identical, is it, to the first lease?

MR DONALDSON:   No, rise under 11.

FRENCH CJ:   Sorry?

MR DONALDSON:   It rises under clause 11, not 8.

FRENCH CJ:   Yes, I know, but that is not given statutory effect in the same way that clause 8 is.

MR DONALDSON:   By reason of ‑ ‑ ‑

FRENCH CJ:   By reason of clause 3 read with section 4 that I mentioned before.

MR DONALDSON:   Yes, that is right.

FRENCH CJ:   So what is the basis upon which that lease was granted?  Granted under the Mining Act?

MR DONALDSON:   It was granted pursuant to the terms of the agreement, those provisions which did not have a statutory force.  But there was an agreement between the State and the ‑ ‑ ‑

FRENCH CJ:   I understand that.  So you are saying it is an Executive act?

MR DONALDSON:   Yes, that is.

FRENCH CJ:   Is it authorised by some statute otherwise?

MR DONALDSON:   It is in the form of a 1904 mining lease, your Honour, so it is supplemented by – it is a 1904 mining lease in form, your Honour.  Your Honours will see in the lease instrument itself, there is a reference to a grant pursuant or including the rights of the holder of the lease under the 1904 Mining Act.  Could I ask your Honours to turn to page 149?  Your Honours will see at about point 5 of that page that it is granted to the joint venturer as a mineral lease over mining areas “A”, “B” and “C”, and the Act “authorised the grant of a mineral lease or leases”, and then there is a grant and demise to the joint venturers:

as tenants in common in equals shares subject to the said provisions –

and they are the provisions of the State agreement, the area in mining area “A” that is identified.  So there is a grant of the mining lease, and then over the page, your Honours, the third line –

and all those mines, veins, seams, lodes and deposits of iron ore in on or under the said land . . . together with –

so they get the lease, and together with –

all rights, liberties, easements, advantages and appurtances thereto belonging or appertaining to a lessee of a mineral lease under the MINING ACT, 1904 –

I will take your Honours to that in a moment.  Then if your Honours could drop three lines ‑

or to which the JOINT VENTURERS are entitled under the said Agreement TO HOLD the said land and mine and all and singular the premises hereby demised for the full term of twenty one years . . . as provided in but subject to the said Agreement for the purposes but upon and subject to the terms, covenants and conditions set out in the said Agreement ‑

So the grant of the mining lease is for the purposes of the State agreement which includes the matters to which I have taken your Honours, that is, the construction of air strips, railways and the like, so more extensive rights than simply quarry, as it were.  So they are the terms of this particular instrument ‑ ‑ ‑

HAYNE J:   But the townships et cetera are those which are for the purposes of mining.

MR DONALDSON:   Yes, your Honour.  There is no issue with that.  They were constructed for that purpose.

HAYNE J:   That is all that was permitted to be constructed.

MR DONALDSON:   Yes, by the terms of this agreement, your Honour.  That is, the purpose of the town site was for the exploitation of the mineral resource.

HAYNE J:   Only that?

MR DONALDSON:   Yes.  We do not contend otherwise, your Honour.  Likewise, your Honour, in relation to the railway and other infrastructure, that was related to the mining activities.  Having said that, your Honour, they happened.  By that I mean, there was a town site on which people lived.  The reason why they were there was because they were there for the mining purposes which were central under this agreement.

Your Honours, could I also point out to your Honours, and again it is common cause, that this agreement, this particular mining title again is rather unusual, certainly in Western Australia, in that it is for a recurring 21 year term so this mineral lease, as the evidence showed, was granted in the mid‑1960s and remains in place and is subject to renewal every 21 years.

The mining instrument referred your Honours to the purposes of the Mining Act 1904. Could I ask your Honours to go back to the bundle of the material to which I earlier took you and to page 285? The section 48 – I will not read out the commencement of 48, but these are the purposes of 1904 mineral leases and so your Honours will see that there can be a grant of the lease “for any . . . of the undermentioned purposes”. So:

(1)    for mining, and all purposes necessary to effectually carry on mining operations . . . 

(2)    for cutting and constructing thereon water races, drains . . . 

(3)    for erecting thereon any buildings and machinery to be used . . . 

(4)    for boring or sinking for, pumping, or raising water . . . 

(5)    for residence thereon in connection with any or all such purposes.

So it gets back really to your Honour Justice Hayne’s observation that ‑ and we do not doubt it ‑ that all of the non‑strictly mining activities were all related to mining in this general way.

HAYNE J:   But what was permitted and in part required by the agreement was in no sense different from matters, all of which were encompassed by (1) to (5) of 48, I think, is that right?  Residence?  Buildings?

MR DONALDSON:   Yes.  I think, your Honour ‑ and again this was not the subject of evidence or any such ‑ but the particular matters were certainly more specifically articulated in the State agreement in relation to those particular matters.

HAYNE J:   This was a major infrastructure investment where both sides wanted to know what their obligations were and set them out.

MR DONALDSON:   Quite so, and it was in the interests of all parties ‑ ‑ ‑

HAYNE J:   Everybody.

MR DONALDSON:   Quite so.

FRENCH CJ:   Was the mineral lease 235 a creature of the Mining Act with add‑ons or elaboration or a creature of the Government Agreements Act under the framework I mentioned to you before with incorporation, by reference, of matters coming out of the Mining Act?

MR DONALDSON:   It is the former, your Honour.

FRENCH CJ:   The former.

HAYNE J:   Sorry, it is a creature of what?

MR DONALDSON:   It was granted pursuant to and by reason of the State agreement, but the rights attaching to it by reason of the terms of the State agreement and any other rights attaching to a 1904 mineral lease.

FRENCH CJ:   The definition of “mineral lease” in the State agreement refers to clause 8(1) and 8(2)(a) and also clause 11, I think, so that is the sense in which the term is being used.

MR DONALDSON:   Yes.  I think that is why I said to your Honour it is the former rather than the latter.  I understood your Honour to be asking me was it strictly a mining lease granted under the 1904 Act.

FRENCH CJ:   Yes.  I thought that because clause 8(2)(a) was, in effect, given statutory operation by 3, read with section 4, that what was being granted – unless the term “mineral lease” simply picks up the Mining Act creature and says that shall be granted.  Otherwise, unless you read it that way, this mineral lease is a creature of this Act – that is, the Government Agreements Act – which incorporates, by reference, various rights and obligations under the Mining Act.

MR DONALDSON:   When your Honour is referring to the Government Agreements Act is your Honour referring to the Government Agreements Act 1979?

FRENCH CJ:   No, I am sorry, the Mount Goldsworthy Agreement Act.

MR DONALDSON:   I am terribly sorry, your Honour.  I was a little confused because when your Honour was referring to the Government Agreements Act I thought your Honour was referring to the 1979 legislation.

FRENCH CJ:   No, section 4 of the Agreement Act.

MR DONALDSON:   Yes.  As I think I have said to your Honour, it was granted pursuant to the obligations created by that legislation annexing the agreement, in our submission.

FRENCH CJ:   That is a statutory obligation.

MR DONALDSON: Yes, and the terms of it, your Honour, are that the terms of the particular grant which gives rise to a consideration of whether there has been extinguishment are the terms of the lease instrument, which refer back to the purposes for which it was granted, which are to be seen in the State agreement. I took your Honours to section 48 of the Mining Act 1904 because those purposes are incorporated as well, but I do not quibble with Justice Hayne’s characterisation that the purposes in the State agreement are perhaps more specific articulations of the matters that are set out in section 48 of the 1904 agreement.

Your Honours, in this case there ‑ and in this case, unlike this Court’s decision in Ward ‑ there were, and have been, specific findings of native title that have been made and what the native title rights are and, again, your Honours, unlike the decision in Ward, in this case there was also extensive evidence led at trial as to the nature of the activities which were undertaken on the lease area which informed an understanding of the rights that were lawfully able to be exercised.

The native title determination, your Honour, is in volume 1 of the bundle at page 320.  Could I take your Honours to those for this purpose?  This case, as we will stress on more than one occasion, I suspect, a case about inconsistency of rights and the determination, and really a case about what the word “inconsistent” means, but a determination of whether the rights granted and exercisable under these mineral leases are inconsistent with the determined native title rights.  What the determined native title rights are is set out at page 320 at paragraph 5.  So when the determination or the assessment of whether there is an inconsistency is to be undertaken one looks to clause 5.

Again, your Honours, that was, of course, wholly unlike the situation in Ward, whether, when, where ‑ when the matter got to this Court, of course, there was no determination of any native title rights, and so the Court was having to deal with all issues of extinguishment, as it were, in abstract.  Your Honours will have seen from the written material, and from the judgment of Justice Bennett and from the judgment of Justice Greenwood, that there were extensive findings made as to the work which was actually undertaken on the mining lease area pursuant to the rights granted under the instrument.

I do not propose to go through those in any particular detail, your Honours, they are set out in paragraph 63 through to 68 of our written submission.  The highlights of it, your Honour, really are, of course, that there was a massive pit constructed, it went from a hill of 135 metres to a pit of 132 metres.  There was the town site which was constructed, and it was occupied for an extensive period of time.  There were waste dumps which were constructed that were up to 35 metres in height.  There was stored on the site, of course, massive machinery and material such as flammable fuel and explosives.  There were constructed railways, roads and the like.

HAYNE J:   What exactly is the point that you seek to draw from those observations?

MR DONALDSON:   That when one comes to consider for the purposes of at least determining whether there is inconsistency between the rights granted under the mining lease and the determined native title rights to which I have taken your Honour, that those rights are informed by those matters and so when considering the rights exercisable under the mining lease, the judicial officer charged with making that determination understands that those lawful rights included the matters that I have outlined to your Honour. 

Your Honour Justice Hayne will recall that in Ward it was observed on a number of occasions that the Court was unable to consider questions – many of the questions of inconsistency, not only because there was no appropriate determination of native title rights, but also because there was no material – there was no understanding of the rights which might have been or may have been able to have been exercised under certain of the ‑ ‑ ‑

FRENCH CJ:   What is the difference in principle, apart from differences in magnitude, between those particular exercises of rights and the right on a pastoral lease to put a homestead anywhere you want to?

MR DONALDSON:   The only distinction in principle, your Honour, may relate to the De Rose issue and it is a question of scope and magnitude – a principled difference of scope and magnitude, if I could put it that way, your Honour.

HAYNE J:   I do not understand that proposition.  You will no doubt come to it.

MR DONALDSON:   I will deal with it now, your Honour.  It is this.  Your Honours are aware of the effect of the De Rose decision that has been dealt with in the submissions and it formed the subject of Justice Bennett’s determination.  The De Rose Case itself involved a pastoral lease and the Full Court in De Rose determined that there was only extinguishment upon the actual occurrence of a matter such as the construction of a homestead, as Justice French referred to, and of course when that occurred.  Now, on a pastoral lease, your Honours, it is a common understanding that activities such as that occur on a relatively small area of the granted title.

HAYNE J:   So what?  The inquiry is one about inconsistency of rights.  That is capable of assessment, surely, at the time of the grant of the rights said to be inconsistent.  Not only is it capable of determination then, must it not be determined then?

MR DONALDSON:   Yes.

HAYNE J:   How then does it matter?  How do you take account of the fact that on the pastoral lease a year, 20 years, after its grant someone has chosen to build the homestead at this place rather than another place?

MR DONALDSON:   Well, your Honour, in our respectful submission, the most logical and only logical answer to that is that native title is extinguished over the whole of the pastoral lease because ‑ ‑ ‑

HAYNE J:   That would require you to reopen Wik, Ward, what else in this Court, Mr Solicitor?  Do you seek to do so?

MR DONALDSON:   No, your Honour, we do not, but your Honour asked me a question and I answered it, your Honour. 

HAYNE J:   Yes.

MR DONALDSON:    But I did so, your Honour, leading into it with, in our submission, the only principled basis upon which De Rose can be defended, in our respectful submission.

HAYNE J:   Do you seek to defend it?

MR DONALDSON:   In relation to mining leases, your Honour, no, we do not, and we do not make submissions in relation to De Rose in relation to pastoral leases which is why we have not sought to reopen Wik or – I am not so sure about Ward actually, your Honour, but certainly we have not sought to reopen Wik which it would have been ‑ ‑ ‑

HAYNE J:   Well, do you seek to reopen Ward, Mr Solicitor?  We need that on the table at some point in the debate.  Do you seek to reopen Ward?

MR DONALDSON:   No, your Honour, there is nothing on the proper understanding of Ward that requires reopening.  Can I say, your Honour, it is obvious that there are passages in Ward that have been construed differently, not only by the parties in this case, and so no doubt those matters will be clarified by the Court, but on what we submit to be the proper understanding of Ward, your Honour, we do not seek to reopen.  We rely upon it, your Honour.

Could I make one further submission, your Honours, in relation to a matter of fact?  It is dealt with in Justice Bennett’s judgment at paragraphs 49 to 50.  That is at volume 1 of the appeal book at page 249 and through to 250.  So, your Honours, at paragraph 49 your Honours will see that there is a reference there to areas of 249SA, that is section 7, 8 and 9 of mining lease 249 which were not currently the subject of any permanent construction works or productive mining.  Then, your Honours, at paragraph 50, after about five lines, there was evidence before her Honour and her Honour made findings that:

Any future mining operations at Ord Ridley would be likely to entail the construction of a small crushing and screening plant and a rail spur off . . . a 7 kilometre haul road to the rail line . . .  construct a maintenance workshop and facilities for fuel and water storage, a small administration office and a secure, fenced –

et cetera.  So there was evidence as to the activities that would occur in the future or were proposed to occur in the future in relation to those particular areas.  Your Honour, over the page at paragraph 52 which deals with sections 1 and 2 of ML 249SA and 235, so your Honours will see there three lines down:

the land the subject of Lease 235 and sections 1 and 2 of Lease 249 contains an expected magnetite resource of about 2.7 billion tonnes with the mining depth estimated at 200 metres.

Her Honour also determined in the next paragraph that the exploitation of that would require large quantities of water and in 54 an extensive drilling program beforehand. 

Now, again, the relevance of that is simply to illustrate that, and it becomes particularly apposite when one comes to consider the form of any kind of De Rose determination in this matter that there is future mining proposed on these particular mining areas.  Now, if and when that mining activity occurs then on the form of determination that was made by Justice Bennett there would have to be ongoing variations to that determination to accommodate the mining activity which is set out by her Honour here. 

Can I also make this observation, your Honours, that those foreshadowed activities that I took your Honours to – I am sorry, your Honours, before I go on with that could I also ask your Honours quickly to turn to pages 205 and to 208?  This was the primary evidence upon which her Honour relied for those particular findings.  Your Honours will see on page 205 in paragraph 9 is the reference to sections 7, 8 and 9.

Then over the page, your Honour, at 208 your Honours will see paragraph 25.  That is the reference to there being a resource of “2.7 Billion tonnes” on 235 and sections 1 and 2 of 249, and there is a reference there to the iron content of that particular ore.  So, these are not mining leases, your Honour, in respect of which it can be said that all mining activity or other activity has ceased for all time.  We do not say that is relevant, your Honour Justice Hayne, of course. 

The observation I was going to make, your Honour, before I went back to that evidence was simply this:  that in the event, and to the extent that those activities occur in the future no further tenure is required.  All of those rights can be exercised and all of that work undertaken pursuant to the mineral leases that have already been granted.

Your Honours, can I then move to the notion of inconsistency and make submissions in relation to the notion of inconsistency which, in our submission, underlies all questions of extinguishment of native title, certainly at common law or general law.  That an inconsistent statutory right extinguishes a native title right, your Honours, is clear and clearly established by many authorities in this Court, in particular Ward. 

What “inconsistent” actually means is a matter that has attracted less attention.  It did not attract attention in Ward itself because the Court was unable to consider the matter in detail because there were no determined rights.  A number of things are however, your Honours, clear.  As Justice Hayne has alluded to, the inconsistency analysis is an objective one as between the legal nature and incidence of the statutory right as against the asserted and, in this case, determined native title rights. 

I will take your Honours now, if I may, to an extract from the majority judgment in Ward.  If your Honours could turn please to paragraph 78 of Ward (2002) 213 CLR 1. Your Honours, if I could ask you to turn to page 89, please. Paragraph 79, 10 lines from the bottom, is the authority for that proposition and your Honours will see the sentence “That is an objective”, so reading up, the grant of title to a third party:

the question is whether the rights are inconsistent . . . That is an objective inquiry –

If I could leave your Honours to read the balance of that paragraph.  Could I pause there to observe, it is why evidence was led in this matter as to the activities that were undertaken on the land because it informed an appreciation of the rights able to be exercised pursuant to the mining leases here. 

Could I ask your Honours also to turn to paragraph 80?  This is the part of the judgment where their Honours are dealing with Justice Lee and Justice North’s view of extinguishment at trial and in the Full Court.  If I could leave your Honours to read paragraph 80 to about line 10.  Again, your Honours, that is an unquestioned proposition.  Then your Honours, on paragraph 82, their Honours are dealing there with Justice North’s view in the Full Court and your Honours will see that what is said there is this approach, that is Justice North’s approach to extinguishment:

as understood with respect to the withdrawal of recognition by the common law should not be adopted.  First, it is an approach which proceeds from a false premise, that there can be degrees of inconsistency of rights . . . Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.

Then, your Honours, at the bottom of that paragraph, the point is made there is no suspension of native title.

So again, your Honours, if there is a determination of rights being inconsistent, then the native title rights are extinguished.  If I could pause there for a moment to ask your Honours to turn to the determination which is actually made by the Full Court in this matter?  That is in volume 2 of the appeal book at page 554, and order 9.  So your Honour will see that – and it is prefaced by “Except as otherwise provided by law”, but:

the relationship between the native title rights and interests described in paragraph 4 and the Other Interests –

and I will come to what they are in a moment –

is that:

(a)to the extent that any of the Other Interests are inconsistent with . . . native title rights . . . continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests –

that is, they are suspended.  Then your Honours will see (b).  “Other interests” your Honours will see defined on page 555, referring to “Schedule Four”.  That is at page 563.  Certain of the other interests, your Honours, at the bottom of page 563 are, of course, the mining interests here.  Of course, the majority in the Full Court determined that there was no – or seemed to determine that there was no inconsistency between any of the rights here, and so that determination could be made, but it does not detract from the clear proposition of principle that an inconsistent native title right is extinguished.

It also follows, and again it is a trite proposition - I can take your Honours to authority if required and this fallacy, if I might say, lays at the base of Justice Barker’s judgment, with respect – that simply because a native title right continues over time that is, in effect, enough.  A native title right can be extinguished even if it is exercised or purported or sought to be exercised or even if native title exists and traditional connections exist over a particular area.  It is not enough to simply point to the fact that native title rights have been able to persist over a particular area since the grant of a title.  Your Honours, there are no circumstances at common law in which of course native title rights can revive after they have been extinguished.

Your Honour Justice Hayne, we adopt entirely what your Honour stated a moment or two ago.  Inconsistency is and can only be determined at the time of the grant of the title that purports to be inconsistent with native title rights.  That determination of inconsistency must be undertaken at that particular point in time and it is the difficulty – or the fundamental difficulty with De Rose is reconciling the decision in De Rose with that basal principle.

Your Honours, the big question left unanswered in Ward, because it did not arise in Ward, is, what does “inconsistent” actually mean in this context?  It has been variously stated in a number of decisions, and we have set certain of those out in our written submissions, your Honour, and I will not take your Honours to all of them, but can I take your Honours to one, and it is in the judgment of Sir Gerard Brennan and Justices Dawson and McHugh in Wik 187 CLR 1 at 87.

Now, I am aware that their Honours dissented in that case, but the decision in Wik, your Honours, of course involved the consideration of questions, and they came down really to the question of whether a pastoral lease conferred exclusive possession and, if so, whether that was necessarily inconsistent with all native title rights.  So, the question of inconsistency was not really dealt with squarely, but three of their Honours in Wik considered this issue.  If I could ask your Honours to look at the paragraph commencing, “The law can attribute priority”.  Rather than me read it, if I could ask your Honours to.

HAYNE J:   Sorry, what page?

MR DONALDSON:   Page 87, your Honour.

HAYNE J:   Thank you. 

MR DONALDSON:   So it seems that what his Honour was there postulating was a test of two rights that cannot both be exercised at the same time.  Now, were that the test, and that is, at the same time, at the same place, if that were the test then, with respect, virtually every title – well, many, many titles would extinguish native title and distinguish all native title rights.  The question is asked, can a particular native title right be exercised in the same place at the same time as a particular statutory right, and if they cannot then the native title right is extinguished.  That would result in fairly extensive extinguishment.  It is what we refer to in our written submissions, your Honours, as “the logical test”.

The other extreme, if I can put it that way, your Honours, is really where Justice Barker and Justice Greenwood came to in the decision below.  Before taking your Honours to passages of their Honours’ judgments, can I seek to encapsulate their Honours’ test of extinguishment in this way?  If it can be conceived that over time and over the entire area of a title, a native title right can be exercised without interfering with the statutory right, then they are not inconsistent, and so for Justice Greenwood, yes, I can conceive of that because I can conceive that a miner may not be working on every part of the lease at every time.

More simply, of course, that answer is always, “yes, I can conceive of this because a title might cease”.  So I can conceive of it because that particular title may come to an end and if that title comes to an end then, of course, native parties can be exercising rights, and on that particular formulation ‑ and I think Justice Barker is fairly clear on this ‑ on this particular formulation it will be rare, if ever, that there will be inconsistency.

Could I take your Honours quickly to where Justice Barker, in particular, deals with this?  In volume 2 of the appeal book at page 510 and paragraph 464 and over onto page 511, your Honours, so:

Where there is no actual conflict of rights, for example because the native title right has not been exercised to produce actual conflict, why should the question of inconsistency or extinguishment arise at all?  In my view, it does not ‑

So pausing there, there is an even better example of there never being inconsistency.  Well, if you can conceive of a native title right not being exercised at a particular time, then there will not be inconsistency ‑

The most that can be said is what was said at [150] in Ward in the joint judgment, that in some circumstances statutory rights may be “incapable of identification in law without the performance of a further act or the taking of some further step . . . and that may well need to be regarded in identifying the rights created by statute said to be inconsistent with a native title right or interest.  However the issue may be considered to be an exceptional one ‑

Then, your Honours, at paragraph 470 this, with respect, is simply a clear divergence from what was determined in Ward.  His Honour considers that ‑

the clash of a statutory right, upon exercise, with the exercise of an indigenous right simply means that the exercise of the statutory right (in the event of actual conflict) has the effect of preventing and prevails over the native title right to the extent of the conflict, but only for so long as the exercise of the statutory right in fact prevents the enjoyment of the native title; and so there is no extinguishment of any relevant native title right upon the exercise of the statutory right in such a case.

His Honour is simply saying there that there is a non‑extinguishment principle that applies on every occasion of there being an issue of suggested inconsistency. 

Your Honours, the best answer to Justice Barker’s postulation at 470 is not only that it is contrary to Ward but is, with respect, in Justice Bennett’s judgment.  Could I ask your Honours to have volume 1 of the appeal book and turn to page 306?  It is really how her Honour characterises this sort of analysis, and it is page 306 at paragraph 205, and her Honour is referring to the applicant’s reasoning which was picked up by Justice Barker.  Her Honour says there:

the applicants’ reasoning seeks to enlarge the concept of prevailing rights to such an extent that most granted rights would not operate to extinguish native title rights on the basis that they can merely prevail over those native title rights.  It is important to note that the fundamental question is whether the granted rights and the native title rights are inconsistent and not whether one can prevail over another.  A reverse analysis may result in every possibility of inconsistency between two sets of rights being answered by the fact that the granted rights can merely prevail over the native title rights.

With respect, her Honour is entirely right, that Justice Barker and Justice Greenwood’s analysis of these matters is simply and squarely inconsistent with Ward, to the passages of Ward that I have taken your Honours to, paragraph 78 through to 82.  Your Honours will be taken by my learned friend, Mr Walker, to paragraph 308 of Ward.  It was referred to by Justice Barker in the passages that I took your Honours to.  It is referred to also by Justice Greenwood as, as it were, the basis of certain of their Honours’ reasoning.

Without taking your Honours to Justice Greenwood and Justice Barker’s judgments in that respect, Justice Greenwood refers to it at paragraph 427 and Justice Barker at paragraphs 458 through to 459.  Their Honours’ contention is that paragraph 308 of Ward provides for this notion of prevailing and, your Honours, the words – 308 is a rather lengthy paragraph unfortunately, but the words that are relied upon by my learned friend and by Justices Barker and Greenwood are the words on page 166.  I will come back to the rest of the paragraph, but the passage that is trotted out all the time, your Honour, is ‑ your Honours see about 10 lines from the top:

The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity.

Now, from that, your Honour, is extrapolated a number of notions.  One is, we think, De Rose – that is that it is the actual performance or doing of the ‑ or exercise of the rights, but also the exercise of the right may prevent the exercise of some native title rights.  It is preventing the exercise of them which has been converted into this prevailing notion.

Now, a number of things, your Honours, can be said about this paragraph 308.  Firstly, your Honours, to read it in the way that it often is, and which Justices Barker and Greenwood did below, simply ignores what not only their Honours in the joint majority judgment but also, of course, Justices Callinan and McHugh, had to say as to extinguishment as matters of principle, and they were dealt with in paragraph 78 through to 82 to which I have taken your Honours, but it also overlooks, your Honours, the context of paragraph 308.  Paragraph 308 ‑ ‑ ‑

HAYNE J:   Justices McHugh and Callinan reached a different conclusion about mining rights from the plurality.

MR DONALDSON:   They did, your Honour.  Your Honours, they were able to determine that the exercise of rights under a mining title would be inconsistent with native title rights, and their Honours found that.  The majority judgment, in my submission, did not form that – I will come back to the majority judgment in relation to mining leases, but the answer to your Honour’s question is yes, that Justices McHugh and Callinan would have found that mining leases extinguished all native title rights.

Paragraph 308, your Honours, is to be read in the context of 307.  Paragraph 307 makes it clear that what 308 is referring to and dealing with is attempting to give some meaning to the notion which is a troublesome notion of a right to exclusive possession for mining purposes.  Paragraph 308 deals with an explanation of what that notion of exclusive possession for mining purposes might mean.  Really, all that 308 says, in our submission, your Honours, is when we have a notion such as exclusive possession for mining purposes, there may be other purposes other than mining purposes and they may not be necessarily inconsistent with all native title rights, and 308, with respect, is to be understood in that way.  If Justices Barker and Greenwood and what my learned friend will put to you is right, then it is hard to reconcile that with paragraph 296 of Ward, again in the majority judgment.

FRENCH CJ:   Do you accept that it is not sufficient to demonstrate inconsistency of a non‑indigenous right with a native title right, that the former may be exercised in a way that precludes or prevents at a particular time or in a particular place the exercise of native title rights?

MR DONALDSON:   Is your Honour asking whether we put to your Honour that the test is ‑ ‑ ‑

FRENCH CJ:   I am just asking whether you accept that it is not sufficient for inconsistency of rights that the non‑indigenous right may be exercised in a way that prevents the exercise of native title rights.

MR DONALDSON:   We do accept that.  That is, your Honour is asking whether what we have referred to as the logical test in our written submissions is the criterion ‑ ‑ ‑

FRENCH CJ:   Well, I just put it as I put it.

MR DONALDSON:   Yes, well, I have given your Honour my answer.  We do accept that, your Honour.  We will come to tell your Honours what we think “inconsistency” means, but we do not put to your Honours that it means that.  Could I simply refer your Honours to paragraph 296 of Ward, which accepts that there can be extinguishment of some native title rights by the grant of a mining lease?

HAYNE J:   It begins from the premise that the grants of mining leases cannot be said to be:

necessarily inconsistent with the continued existence of all native title rights and interests.

MR DONALDSON:   Quite.  All I am saying, your Honour, is ‑ ‑ ‑

HAYNE J:   And it is at that point that the Court divided.

MR DONALDSON:   Yes, and your Honour was part of the majority judgment.  Your Honour went on to accept:

That some native title rights and interests were extinguished in some areas of the mining leases is not in doubt.

HAYNE J:   The example given in Ward was the right to control access.  That was extinguished.

MR DONALDSON:   Yes.  In that particular instance, your Honour, yes.  But, your Honour, the point of referring the Court to paragraph 296 is if the view that is taken of what paragraph 308 means is the view that has been adopted by Justice Barker and Justice Greenwood then paragraph 296 would be inconsistent with that.

HAYNE J:   But do you begin, do you accept the premise from which paragraph 296 begins, namely that the grant of the mining lease, in this case, is not necessarily inconsistent with all native title rights and interests?

MR DONALDSON:   We do not accept that in this case, your Honour.

HAYNE J:   That is, you challenge the premise that underpinned the majority in Ward, do you not?

MR DONALDSON:   No, because that case, Ward dealt, your Honour, with a particular mining lease which is not this mining lease, your Honour.  These are – and it is been made clear in all the of the judgments – these are large and extensive mining leases that have more extensive rights than what might be referred to or thought of as customary mining titles.  We put our submissions on that basis, your Honour.

FRENCH CJ:   Well, they are not inconsistent because they are big.

MR DONALDSON:   It is not only that they are big, your Honour - it is partly that they are big, your Honour, but it is also partly because of the nature of the additional rights that were specifically contemplated as being undertaken on these mining lease areas.  Your Honour Justice French knows that it is pretty unusual to have towns built in Western Australia on mining leases, and this contemplated the ‑ ‑ ‑

HAYNE J:   Be it so, it is not unusual to have a building on a mining lease, is it?  What does the proliferation of number matter?

MR DONALDSON:   Well, one relevance of it, your Honour, is that it gives rise to an understanding that there was a community there for a term of years.  There were a large number of people living there as opposed to somebody living in a tent or in a shack.  It was on a scale, your Honour, that is simply more extensive than under a conventional mining title. 

Your Honours, I will – well, I will put to your Honours now that when one comes to consider inconsistency – before I get onto that, can I say to your Honours we do not put the proposition which your Honour Justice French put to me as the test which we would understand your Honour Justice French to be in essence paraphrasing Justices Brennan, Dawson and McHugh from Wik.  We do not put to your Honours that that is the test, and quite obviously we do not put to your Honours that the test formulated by Justice Barker or Justice Greenwood, both of which are similar, is the test either.

KIEFEL J:   But on your view inconsistency is reached by a process of degree.  You put a certain number of things on a mining lease and you reach a point of saturation where there is inconsistency.

MR DONALDSON:   It is determined, your Honour, as a matter of common sense, in our submission.

KIEFEL J:   Is that an answer to my question?

MR DONALDSON:   Yes, it is, your Honour, because ‑ ‑ ‑

KIEFEL J:   Forgive me if I do not think it is.

MR DONALDSON:   Because, your Honour, matters of degree are relevant to a consideration of whether matters are inconsistent or not.

KIEFEL J:   What has a matter of degree got to do with the nature of the rights?

MR DONALDSON:   Because, your Honour, when a trial judge – and I will take you to how Justice Bennett dealt with this in a moment.  All that we have at the moment is a notion of inconsistency.  If one wishes to formulate a test that what that means is can there be co‑extensive exercise and, if there cannot, then the native title right is extinguished, then virtually every title will extinguish native title.

If it is not that test, your Honour, then one looks at the title that is being granted – in this case the title in the form to which I have taken your Honours – understood in the context of and having regard to the rights that were actually exercised, with an appreciation that what this mining title contemplated was the construction of towns, the construction of railways, the construction of a massive pit, and that was always contemplated, your Honours, in the terms of the agreement itself, which carried with it massive additional infrastructure and storage capacity and waste management and the like.

When one has regard to those rights and asks:  they are the rights that I have to compare to what is at 320 of the appeal book, is it meaningful to say that they are not inconsistent?  Justice Bennett asked that very question, your Honour.  If I could take your Honour to how her Honour did deal with it.  It is on page 304 in volume 1.  Your Honours, we say that the process which her Honour went through was really as good as can be done.  At paragraph 201 her Honour said:

I accept the submissions of the tenement holders that the granted rights to construct the mine and the town site, together with the associated infrastructure, and to work and utilise those entities and the land on which they stand, are inconsistent with the continued existence of any of determined native title rights . . . In my view, none of the determined native title rights can co-exist with the rights of the Joint Venturers to construct and work the developed areas of the Leases.

HAYNE J:   Now, the developed areas of the leases are something that are identified after the event of grant – long after the event of grant.

MR DONALDSON:   Quite.  We say, your Honour, that her Honour erred in applying De Rose.  Of course, her Honour was bound by it, but that is why her Honour is making the reference to the developed areas of the mine because her Honour went on to make the De Rose‑type determination.

HAYNE J:   But does it therefore follow that because a mining lease would entitle the lessee to put a hut anywhere on the mining lease for the purpose of storing his or her tools by which the mine will be worked that, therefore, no native title can exist over any part of the lease?

MR DONALDSON:   Your Honour, I will avoid answering your Honour’s question by saying this, with respect, that the correct question to be asked is not breaking up the rights in the way that your Honour’s question does.  The correct approach, with respect, is to ask:  well, here are the totality of the rights, one of which is to build a hut that somebody can live in.  But here are the totality of the rights that can be exercised.  Is that totality inconsistent with the identified native title rights?

HAYNE J:   What the phrase “totality of the rights” is obscuring is the content of the rights and until one spells out the content of the rights embraced by this phrase “the totality”, the argument does not proceed very far I think, Mr Solicitor.

MR DONALDSON:   Well, with respect, your Honour, not so because in this case there is a clear conception of what the totality of the rights in fact are because there was evidence led as to what was actually lawfully done.  So when one comes to consider inconsistency, not only does one have, well, a right to mine means a right to dig a hole; does that mean a one foot hole or does that mean a 132 metre pit? In this case, what the rights are - the totality of them, the word I have used, but perhaps the full expanse of them, your Honour, would be as good a term - there is a very clear appreciation of that and there was a very clear appreciation for her Honour.

KIEFEL J:   Justice Bennett says that the rights are analogous to rights of exclusive possession.

MR DONALDSON:   I will come that, your Honour, if I can, but can I just – I will come to exclusive possession in a moment before I get to Justice Gageler.  Could I say one other thing, Justice Hayne, to finish off your Honour’s question, and we would say that because those rights, understood in the way that I have put them to your Honour, can be exercised lawfully over the entirety of the lease area, it extinguishes native title over the totality or over the whole of the lease area.  Sorry, Justice Gageler?

MR DONALDSON:   I am terribly sorry, your Honour.  In relation to the Argyle mining leases, your Honours, the leases that were considered in the Ward case were granted pursuant to the Mining Act 1978 (WA). Under the Mining Act 1978 (WA) one of the purposes of that Act was to create further form of land tenure such as miscellaneous licences, for instance, pursuant to which certain work could be undertaken on mining areas and if your Honours look in due course at section 85 of the 1978 Mining Act it is our submission that the purposes there identified for a mining lease are more limited than those for which a 1904 Mining Act lease could be granted or, indeed, the mining leases considered in this particular matter.  So, for instance, there is in equivalent in the 1978 Mining Act of section 48 of the 1904 Mining Act to which I took your Honours this morning.

Next, your Honours, my friend had a go at me, and I suppose it was fair enough, about my difficulty with the notion of exclusive possession.  What I was seeking to convey, your Honours, earlier was that the difficulty with that notion of a reference to exclusive possession for particular purposes – and we have seen that throughout the Ward decision, that is, particular titles granted and said to confer exclusive possession for particular purposes – it may be there is less difficulty with the notion of what exclusive possession is at common law.  Then the issue, of course, becomes characterising particular titles as giving rise to a common law notion of exclusive possession.

My friend dealt with briefly the special leases in Ward that were considered.  Justice Hayne earlier made reference to those.  I will not take your Honours back to the reasoning at paragraphs 356 and 368 through to 369 of Ward, but in those paragraphs – and if your Honours in due course look to the provisions of section 116 of the Land Act – there was no express statutory provision or in the form of the instruments of the special leases which are in the 21st schedule of the Land Act 1933 which conferred an express power to exclude, that is, there was no express statutory conferral of exclusive possession, nor was there that right conferred by the instruments themselves which were issued under section 116.

The reasoning at Ward at the paragraphs that I have identified comes to this.  One looks at the purposes for which these special leases were granted and from those purposes infers – and it is an inference – infers that the grant of a special lease for those purposes carries necessarily with it a right to exclusive possession, that is, to exclude all for every purpose. 

Now, on that understanding, your Honours, and if I have correctly put to your Honour the effect of the reasoning of those paragraphs of Ward, in this case of course much of what was done on the land here could have been done pursuant to special leases, and my learned friend, Mr Walker, accepted it in his oral submissions.

Well, if there had been special leases granted for the warehouse, for the quarrying, for various of the buildings that were constructed, if there had been special leases granted, then on the authority of Ward that would have extinguished native title, and as I took your Honours to the map earlier this morning, the area of the special leases were never even claimed in this claim and obvious because it was accepted that they were extinguished. 

So it is, with the greatest respect, a most odd proposition to contend that, well, they could lawfully do everything that they have done under these mining leases and they could have lawfully done exactly the same things if they had got a special lease, and had they got a special lease that would have extinguished native title, but what they have done here has not extinguished native title, even though they are lawfully done pursuant to a title that confers a right upon the holders to do so.

Can I say this about my learned friend’s test for inconsistency which slid delightfully off my friend’s tongue of course?  A state of affairs where the existence of one right necessarily carries with it the non‑existence of another ‑ ‑ ‑

GAGELER J:   Well, at least it is a test.

MR DONALDSON:   I will give you – I was criticised over lunch for being impolite to your Honour - I will give you a test.  What that test of course does not tell us at all is what “non‑existence” means.  On that test, if one thinks of, well, what does “non‑existence” mean, on that understanding a fee simple title would not extinguish native title because one could accept that a fee simple title may come to an end.  The grant of no title would carry with it the non‑existence of particular native title rights. 

Justice Gageler, this follows from Justice Brennan and Justice Gummow in Wik at page 185, assume that the whole of the rights able to be exercised under the title are exercised over the area of the title where such rights can be exercised.  So that assumption is made.  Look then at the native title rights that are claimed or here determined - that is in the appeal book at page 320 - and then ask whether the exercise of the rights pursuant to the title in accordance with the assumption made at the preface render the exercise of the native title rights impossible. 

Interestingly, your Honour, the passage which my learned friend, Mr Hinton, took you to from Justice Gummow’s judgment in Wik at page 185 referred to Yarmouth.  Justice Brennan at page 87 in Wik, the passage to which I took your Honours earlier today, his Honour’s footnote 345, which is authority for the notion that the law does not recognise the co‑existence in different hands of two rights that cannot both be exercised at the same time is Yarmouth.  That is the test which we posit, your Honours.

Your Honours, my friend also put to your Honours a somewhat utopian notion of co‑existing rights; that is, the reality of it is that the law deals with competing rights in a sensible and mature way without one of them being extinguished by the other.  That is simply, with respect, a reformulation of what Justice Barker has said in this case, and that is really there can never be extinguishment because it can be conceived that rights can be exercised consistently with each other, and that, in our submission, your Honours, is simply inconsistent with matters that have been found are in Ward.

My friend’s reference to “prevailing” in Ward at paragraph 194, as Justice Gageler pointed out, arose in the context of their Honours considering a non‑exclusive pastoral lease, and 12M of the Western Australia Act is the equivalent of 23F of the Native Title Act, which, of course, invokes the non‑extinguishment principle in 23G, the basis of which, of course, is that there is no extinguishment and simply the prevailing of a non‑native title right over a native title right.  If your Honours please.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 4.10 PM THE MATTER WAS ADJOURNED