State of Western Australia v Banjima People & Ors

[2016] HCATrans 172

[2016] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P2 of 2016

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Applicant

and

BANJIMA PEOPLE

First Respondent

BHP BILLITON IRON ORE (JIMBLEBAR) PTY LTD, BHP BILLITON IRON ORE PTY LTD (ACN 008 700 981), BHP MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD, MITSUI ITOCHU IRON ORE PTY LTD, MARILLANA STATION AND BEN NEWLAND

Second Respondents

CHANNAR MINING PTY LTD, CMIEC (CHANNAR) PTY LTD, HAMERSLEY EXPLORATION PTY LTD, HAMERSLEY IRON – YANDI PTY LTD, HAMERSLEY IRON PTY LTD, HAMERSLEY RESOURCES LTD, JUNA STATION PTY LTD, MITSUI IRON ORE DEVELOPMENT PTY LTD,
MOUNT BRUCE MINING PTY LTD, PILBARA IRON PTY LTD (ACN 107 216 535), NIPPON STEEL AUSTRALIA PTY LTD, NORTH MINING LIMITED, ROBE RIVER MINING CO PTY LTD, ROCKLEA STATION PTY LTD, SUMITOMO METAL AUSTRALIA PTY LTD AND
WRIGHT PROSPECTING PTY LTD

Third Respondents

HANCOCK PROSPECTING PTY LTD, HOPE DOWNS IRON ORE PTY LTD, WESTRAINT RESOURCES PTY LTD, MULGA DOWNS IRON ORE PTY LTD, MULGA DOWNS INVESTMENTS PTY LTD AND G H RINEHART

Fourth Respondents

THE SHIRE OF ASHBURTON

Fifth Respondent

CHICHESTER METALS PTY LTD (ACN 109 264 262), FMG PILBARA PTY LTD (ACN 106 943 828), FORTESCUE METALS GROUP LIMITED AND THE PILBARA INFRASTRUCTURE PTY LTD

Sixth Respondents

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 28 JULY 2016, AT 11.15 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, QC:  May it please the Court, I appear with my learned friend MR K.M. PETTIT, SC, for the applicant.  (instructed by State Solicitor’s Office (WA))

MR S.A. GLACKEN, QC:  If the Court pleases, I appear with MR S.J. WRIGHT for the first respondent.  (instructed by Yamatji Marlpa Aboriginal Corporation)

KIEFEL J:   Mr Glacken, we would be assisted by hearing from you first, I think.

MR GLACKEN:   And on both grounds?

KIEFEL J:   Yes.  As you would probably appreciate, the question is why should special leave not be granted.

MR GLACKEN:   In relation to both grounds, your Honour, we submit that apart from an appeal lacking sufficient prospects, the case does not raise a suitable matter of general importance to warrant a grant.  In this respect, can I say something in brief terms first about ground 1.

That ground, dealing with section 47B of the Commonwealth Act, turns entirely on the characterisation of the Mining Act (WA) provisions and the terms of the licences. While section 47B of the Native Title Act is a national law and no doubt an important law, this case does not turn on any constructional view or limit on that section.

The State seeks to introduce a gloss that the words “is to be used” should be read as “may or might be used”, but that simply jars with the statutory text, to which I will come in a moment.  That aside, the case can present no wider holding, the one that concerns characterisation of the terms of the particular exploration licences under the particular intersecting State mining legislation in its form at the time the claimant application was made in 2010.  In short, your Honours, it is a mere characterisation point and it is the characterisation of the intersecting State law, not the content of the Commonwealth law.

Ground 2, your Honours, is, we would submit, a bare challenge to concurrent findings of fact by the trial judge and the Full Court about the content of the traditional laws and customs of the native title holding community and we submit the challenge proceeds from a mistaken premise.  There was no factual finding by either the trial judge or the Full Court in the terms expressed in the special leave case that the custom to speak for country and thereby control access was confined to entry by Aboriginal people.

That aside, the case presented by the State seeks to insert some bright line test into what is quintessentially a fact‑specific inquiry about the effect and content of traditional laws and custom, which will always turn on the evidence and the evaluation of the evidence.  Before developing those points, may we put the case in perspective by reference to a map of the determination area in the application book volume 2, page 510.  I trust your Honours have it reproduced in colour.

KIEFEL J:   Yes.

MR GLACKEN:   The area in which native title has been determined to exist is in that hue yellow shade of colour.  The areas presently in question are those specks in green in the centre which follow along Wittenoom Road.  Do your Honours pick up those green marks?

KIEFEL J:   Yes.

MR GLACKEN:  There are five parcels called “the exclusive area” in the native title determination. Two parcels engage section 47A of the Native Title Act as Aboriginal community living areas and three adjoining parcels engage section 47B as vacant Crown land or, in the Western Australia terminology, unallocated Crown land or UCL.

The proposed appeal to this Court would only disturb the determinations of three of the five parcels or, more accurately, 2.5 parcels. That is apparent from the orders sought in the draft notice of appeal at page 542, which would omit two and a bit of the section 47B parcels but not the 47A parcels.

Now, it is unattractive for this Court to be asked to hold under ground 2 that there does not exist a traditional right to control access to land but leave undisturbed a determined native title right to that effect in relation to two section 47A parcels. That in itself makes ground 2 somewhat inutile, but your Honours will also observe from the map that the exclusive parcels are specks on the landscape.

The issues presented on the application thus do not loom large in the overall scheme of things.  We would put it, your Honours, as a visitation point in the negative that in that contextual setting the interests of justice would not be served by a grant of special leave, having regard to the contextual background.

With that in mind, can I then elaborate our resistance on ground 2.  As I indicated, it is based on an alleged absence of a traditional rule or custom to control the entry of non‑Aboriginal people.  Your Honours will find that in the statement of ground 2 in the application book at page 535.

KIEFEL J:   Mr Glacken, am I right in thinking that this point has never been addressed by this Court?

MR GLACKEN:   How to prove a claim of exclusive ‑ ‑ ‑

KIEFEL J:   Yes.

MR GLACKEN:   Yes, and probably for sensible reasons, your Honour.  It is fact specific.

KIEFEL J:   That may be.

MR GLACKEN:   What we say is that the State seeks to introduce some bright line test that if you cannot establish that the right was exercised against non‑Aboriginal people then you fail.  That is the way it has been put.  We say that that simply cannot be sustained and I will come to the reasons.  But here, your Honour, the premise is mistaken factually.  There was a finding about the assertion of rights, if I can develop the point.  The relevant ultimate conclusion of the trial judge – and we stress “ultimate conclusion” – is reproduced by the Full Court, application book 1, page 385.

GORDON J:    Is your short proposition on this argument that the findings of the trial judge, and it would seem to be either adopted or endorsed by the Full Court, was that the evidence disclosed custom which required non‑Aboriginal people to seek approval?

MR GLACKEN:   Yes ‑ it disclosed a custom that was binding vis-à-vis Aboriginal people and non‑Aboriginal people alike.  That is why we say the ground as stated in limb B proceeds from a mistaken premise.  That was disposed of by the Full Court in these terms.  If your Honours notice on page 385 paragraph 17 of the Full Court reasons, the Full Court sets out – and I emphasise – it is the ultimate conclusion of paragraph 686 of the trial judgment.  Preceding that were some 300 paragraphs of analysis of the evidence and findings and these are the trial judge’s conclusions.  After referring to the reports of Straker, a pastoralist inspector of the 1890s, your Honours will pick up in the last three lines of the page:

the evidence shows that the need for strangers to seek permission to be in Banjima country has remained strong and is not a re‑introduced custom.  Not the least of the reasons for this custom is the understanding by Aboriginal people that the country carries dangers and spirits and must be respected by Aboriginal and non‑Aboriginal peoples alike.

That was the way in which the trial judge expressed the relevant custom as a conclusion.  Hence, if your Honours then notice how the Full Court disposed of this argument at paragraph 20 on page 387, it said:

The third difficulty, and again contrary to the State’s submissions, is that the primary judge found that the Banjima People had exerted their right to exclude others failing observance of their custom.  This is the point of his Honour’s observations . . . that “reports of Straker go to show that the Hamersley Aborigines were apparently prepared to expel people from their country” and, thereafter, the “need” to obtain permission remains “strong”.

If I just go back to the conclusion of the trial judge on page 386, his Honour mentioned at 687 and 688 of the reasons at first instance examples of the witness who gave evidence about the continuing observance of a custom to speak for country.  Now, we emphasise that what the Full Court said at paragraph 20 was the third difficulty and it provided an additional reason to reject the challenge made by the State.  We emphasise that it was additional and we then come to – sorry, I withdraw that.

The Full Court then at paragraph 21 referred to a fourth difficulty.  That fourth difficulty concerned observations by the trial judge that the Banjima had no legal capacity to enforce their customs before the common law recognition of native title and that traditional law and custom would be framed by reference to relations with indigenous people, given its pre‑sovereignty origins. 

What I wanted to emphasise, your Honours, is that provided an additional reason to reject the challenge and, we submit, there is no error in that additional reason.  In other words, even if the premise about characterisation that the custom was accepted, which we say it is not ‑ the Full Court disposed of that as the third difficulty at paragraph 20 – the substance of the complaint now being made is about the additional reason at paragraph 21 and it is one which we submit accords with the statutory inquiry.

The definition is set out at page 390 of the book and relevantly in paragraph (a) of section 223 the inquiry is about the traditional customs observed by the Aboriginal peoples concerned.  The test is not about the observance of those customs by other peoples, including ‑ ‑ ‑

KIEFEL J:   Is not the appellant’s point, though, that there is a disconnect between the finding of the custom and the way in which the Full Court approached it, which was to say that the custom as found excluded the whole world without permission?

MR GLACKEN:   That may be a separate complaint about the drafting of the determination.  It adopts, if you like, a Mabo‑like declaration rather than the statutory language in section 225(e) of the Act, but that could be no more than a complaint about drafting, in our submission.  What I wanted to develop, your Honours, is that the notion of observance by the claim of community concern, not observance by the strangers is perfectly correct. 

It is consistent with what this Court said in Yarmirr set out at paragraph 30 of the Full Court’s reasons at page 391, that the inquiry is about identifying practices that are regarded as socially acceptable rather than looking for the organised imposition of sanctions by the relevant indigenous community and it is for this reason, your Honours.  The sanctions are provided by common law recognition.  The common law declaratory theory is, strictly speaking, retrospective.  Recognition of native title means it is enforcement under general law.  The right to exclude others from country could not at common law be forced against non‑Aboriginal people such as pastoralists and miners holding valid rights to come onto and to use the land.

That is the point of section 47B, your Honours, that to disregard that pastoral prior extinction provided that the claimant community concerned continues to observe the relevant traditional custom and entry by others under valid co‑existing titles granted by the Crown does not mean that the custom has ceased to be acknowledged and observed. That was the burden of the findings of the trial judge as to continuity post settlement.

By taking your Honours to page 70 of the application book, at paragraph [400], referring to the anthropological opinion about the effects of contact, your Honours will pick up the last two lines on the page:

Those who had what were recognised as traditional rights to speak for particular parts of Banjima country continued to assert primary rights to “speak for” particular parts of country (parts that came to be identified more with the boundaries of the pastoral stations on which lived their day‑to‑day lives) . . . 

[401]  The fact that pastoralists, miners and officials administering government regulations and the like may have inhibited the exercise by the Banjima of their traditional rights . . . does not mean that there was any substantial interruption . . . The evidence shows the Banjima never abandoned their country or pronounced the forfeiture or loss of possession of their rights.

If your Honours then note at paragraph [406] and following for some 300 paragraphs the primary judge reviews the evidence, makes findings as to the content of the traditional laws and customs being observed, including if your Honours pick up at [406] at the fourth line:

many witnesses spoke of the right to speak for country that their ancestors left them, as well as the right to do certain things on their country.  The right to speak for country is attached to the groups, Top End and Bottom End, and their main, or senior representatives.

The trial judge then proceeds from that paragraph forward to paragraph [429] appearing on page 74 to review the claimant evidence on rights to speak for country.  At paragraph [429] onwards the primary judge reviews and makes findings about the evidence of the claimants about particular sites and spirits associated with them.

That continues through to page 76 and at paragraph [449] his Honour commences a review of the evidence and makes findings about the kinship relations of the community.  At page 78, paragraph [475] onwards, his Honour makes findings about the state of the evidence on continued economic use of country and at paragraph [480] at page 79 his Honour then reviews the anthropological opinion about the continuity of these customs.

That goes on for another 200 or so paragraphs until we get to those final conclusions at paragraph [688] to which I went at the outset.  These were findings made by the trial judge after a lengthy trial, oral evidence of 22 Aboriginal witnesses and competing expert anthropological evidence.  I will not take your Honours to the detail of the very sections of the reasons but there is nothing to suggest the trial judge was wrong in his understanding of the evidence.

The finding that the State challenges is a finding of fact by the trial judge that depended on his assessment of all of the evidence, an awful lot of evidence, we must emphasise, and it was a finding that the Full Court concluded should not be disturbed.  This challenge raises no point of general principle to the extent that it proceeds from the premise I identified about whether or not there was a custom extending to non‑Aboriginal people.

Two short points:  one is it proceeds from a mistaken premise ‑ the conclusion was not in those terms ‑ and, secondly, even so no bright line test of the kind suggested can be inserted into the statutory definition.  This is a highly fact‑specific jurisdiction.  I think that is all I need to say on that ground, unless your Honours have any questions about those.

KIEFEL J:   Yes, thank you.  Yes, Mr Walker.

MR GLACKEN:  I was going to address section 47B, though.

KIEFEL J:   I am sorry; I thought you had finished.  Please continue.

MR GLACKEN:  That is what we call the possession ground – ground 2. Ground 1 is the section 47B vacant Crown land point. The statute text is reproduced in the reasons of the Full Court at page 414. As your Honours might observe from the heading used, “Vacant Crown land covered by claimant applications”, the exclusions with which we are presently concerned found in subsection (1)(b) reflect the basic pattern of State and Territory Crown lands legislation as to when land is not vacant Crown land available for alienation, disposal and use by and as patrimony of the Crown, but, naturally enough, such legislation may vary in the use of terms like “reserve” and “dedicate”.

Your Honours might recall that the variations were noted long ago by Justice Windeyer in the Randwick Racecourse Case, that terms like “reserve’ and “dedicate” were not terms of art and tended to be employed by statute in imprecise ways and with variation across Australian jurisdictions.

Hence, your Honours will focus in subparagraph (ii) that following a collection of words like “reservation, proclamation, dedication” and so forth, there is a requirement that the area covered by the relevant instrument “is to be used”.  Those words, in our submission, ensure that the instrument in issue said to be within the subparagraph produces the state of affairs considered in authorities like the Government House Case and the Garden Island Case.

Your Honours will recall the line was discussed in Ward in a native title context and in a distinguishing context, and that is what those words seek to do, your Honours, is to bring about a state of affairs as to whether or not the Crown has bound itself to some particular purpose of use in relation to the land, to adapt what Justice Higgins said in the Government House Case.

Whether land is to be so used for a purpose so as to fall within that exclusion in (ii) depends entirely on the content of the intersecting State or Territory law and it is for that reason, your Honours, that although on the surface it would seem the construction of the section might excite some interest, its operational content depends on the intersected State law, which will vary from case to case.

GORDON J:   So your short point, as I understand it, on this ground is that in order to identify whether or not within the exclusion in (ii) one has to look at the underlying instrument, here the exploration licence, look to its terms and look to see whether or not it, in its terms, constitutes something, being an authority directing the way in which land is to be used for a particular purpose.

MR GLACKEN:   Yes.  In this case, what the trial judge did at paragraph [1201] and thereabouts, and the Full Court did the same, was examine the terms and conditions of these two exploration licences in the light of the statutory framework provided by the Western Australia law at the time of the claim and applications in 2010.

Now, we do not submit there has been a material alteration since but my point is it could be altered but it all depends on what is provided for under the…..legislation of the State or Territory concerned, or it might be a Commonwealth law.  The argument of the State – and this is apparent at reply paragraph 12, page 601 of volume 2 of the application book – is that the words “is to be used” should be read as “may or might be used”, which was the argument noted by the Full Court and rejected.  As we said, that is simply not the statutory text.  It jars with the language.

GORDON J:    Subject to section 63, which the Full Court referred to.  It said it ultimately did not help but it says will explore for minerals in the Mining Act.

MR GLACKEN:   Yes, and what their Honours concluded, and there is a visual illustration of this in the papers by way of a map, is that even with

that particular provision in mind there was nothing as to whether or not one had to explore “this area”.  “This area” is the three UCL parcels combined.

KIEFEL J:   The point the court made was that it did not require any part of the area to be used.

MR GLACKEN:  No, and indeed it could be explored by aerial survey was one of the points they made having regard to - what I am trying to convey in terms of today’s exercise and whether or not a grant is warranted is that this argument seeks to put a gloss on the statutory text which jars with the words and for the purpose that I have identified and, secondly, no bright line constructional test of that kind can be introduced as a gloss on the statutory text of section 47B. Unfortunate for the State when they think there might be some point of principle is that the point of principle turns on construction of the State law which will vary from time to time and from place to place. If your Honours please.

KIEFEL J:   Thank you, Mr Glacken.  Yes, Mr Walker.

MR WALKER:   Your Honours, may I turn to what has been dealt with first by my learned friend – it is really the second point – they are two distinct points.  We accept that.  Each, however, has aspects of general public importance worthy of a grant of special leave.  Of course all findings about traditional law and custom are factually based, they cannot be anything else.  However, the way in which the Full Court dealt with the trial findings is one which, in our submission, upheld the error, not of a factual kind but of a legal kind, by which his Honour introduced the disconnect or anomaly between the content of that which had been found by his Honour and the exclusive terms of the determination.

It is highlighted by the way in which the Full Court, in particular, dealt with the matter, altering the way in which the trial judge had dealt with it, at pages 385 of the application book and following.  In reviewing the argument put on behalf of our client in the Full Court at paragraph 14, your Honours will see a note of the evidence that it was argued on behalf of the State existed concerning Europeans entering, et cetera.

My learned friend has drawn to attention the way in which the trial judge had expressed a finding, quoted in paragraph 17 and at the top of page 386 of the application book.  You will recall my friend drew to attention the finding by his Honour that something “must be respected by Aboriginal and non‑Aboriginal peoples alike”.  Now, if the matter had stayed there, there would have been, as it were, a somewhat different point concerning the adequacy of evidence and that would be a point, one would think, that would stop at an intermediate appeal.  It would not attract special leave.  But things did go much further. 

So in an appeal in which, among other things, the adequacy of evidence to support that extension to non‑Aboriginal people was dealt with by the Full Court in this fashion which does raise, in our submission, a point that most certainly transcends the particular factual dispute in this case and introduces a methodological approach which is radically different from anything previously understood under the Native Title Act and has no foundation whatever in the text.

KIEFEL J:   Do I understand from what you are saying, Mr Walker, that the State would not be challenging the factual basis?

MR WALKER:   We have to – in order for this to be worthy of special leave it has to be an attack on the way in which the Full Court approached the matter in upholding the way the determination was framed and then dealing with the findings of fact as made by the trial judge, that is accepting the findings of fact made by the trial judge.

GORDON J:   Can I just clarify that?  So is it a complaint about the wording of the determination as amended by the Full Court ‑ ‑ ‑

MR WALKER:   Yes, absolutely.

GORDON J:   Or is it a question about taking the findings as found and not challenging them and the conclusion which was then reached in paragraphs 17 through to 22?

MR WALKER:   Really we say they are the same thing because if we succeed in our challenge to 17 to 22 – or perhaps 22 plus, yes, that ought to have produced a different approach to the determination.  Of course the appeal is against an order so we do seek to have the determination varied as you have seen in our draft notice of appeal and yes, as Justice Gordon has noted, the argument which proceeds on the basis of the trial judge’s findings is about the way in which the Full Court justifies having the determination in the form the Full Court left it.

Now that justification particularly includes, one sees, in the paragraphs to which my friend has already fairly drawn attention, paragraphs 21 and 22 – those paragraphs, in effect, say it is not to the point for us to determine the challenge before us in an appeal by way of rehearing to the adequacy of the evidence about exclusion of non‑Aboriginal people.  It is not to the point because that would not deprive the law and custom of the continuing effect appropriate to justify a determination which excludes everyone, including non‑Aboriginal people, because, they say, one can move from a custom that applies only to Aboriginal people to justify a determination which extends to everyone.

GORDON J:   The way I understood Mr Glacken to contend against you on that point was to say that your premise is wrong, that the custom was not a custom that was limited in its application to the Banjima people.  It extended to non‑Aboriginal – it extended to other Aboriginal peoples and non‑Aboriginal people - that is the exclusion.

MR WALKER:   Yes, my friend did put it that way.  It is best dealt with, I think, by seeing an illustration of the way in which the Full Court had dealt with the subject matter of that so‑called premise – top of page 389, paragraph 24.  It is also to be found in paragraph 23, but in paragraph 24 the Full Court addresses evidence which had been part of the appellate argument below saying there should not have been a finding about this, in bald terms, just extending to non‑Aboriginal people.  It is more nuanced than that and one sees the reference to a class of Aboriginal people working on the station, et cetera.

The Full Court reasons that that conduct, which did not involve any demonstration of permission being expected or sought or granted, is said not to contradict a statement of the custom.  The reason why it did not affect the determination “which was against the whole world”, says the Full Court, is because one does not need to be concerned about any possibility that the custom as proved did not extend to non‑Aboriginal people.  That is the heart of the matter in paragraphs 21 and 22, and that is what we characterise as something unprecedented.

Certainly, nothing of that kind has ever come before this Court before and it is of self‑evident significance bearing in mind the Yorta Yorta holding of the essential requirement of, for example, continuity of connection.  One necessarily must look at the content of conduct post‑sovereignty.  If one cannot see, if one has, evidence which stands diametrically opposed to the notion of a custom of permission being expected then, in our submission, the Court must grapple with that in ensuring that the determination goes no further than what the evidence reveals. 

In paragraph 21 the Full Court has said, “Don’t worry about non‑Aboriginals not having been regarded and treated” – see the evidence that, for example, paragraph 24 had referred to – “as being bound by the custom or being caught up in the custom because they are outside”, as it were, the universe, as is described, of traditional laws and customs.

This is a very unfortunate figure of speech – “universal traditional laws and customs” – because it is directed to an inquiry about what happened post‑sovereignty.  It is directed to an inquiry where the universe does not exclude – indeed, as Yorta Yorta shows – and may in a historical and tragic way be absolutely affected, even destroyed, by that which lies outside what their Honours called “a universe”.

This, in our submission, represents a radical departure from the appropriate way in which one considers all the evidence about the continuity of observed custom.  It is for those reasons that on the second point that my learned friendly correctly characterises as one that depends, of course, upon findings of fact in a particular case, there is, nonetheless, a very important methodological matter which would affect, if we be correct, the way in which the determination should have been expressed.  So that is the second point.

I should have emphasised:  if you see the beginning of paragraph 22 – I referred to paragraphs 21 and 22 together – the opening of paragraph 22 makes the point extremely plain.  Their Honours seem to be accepting, query finding – I do not have to go that far; they may be finding, but they seem to be assuming at least, or accepting for the purposes of argument – that the conduct of Europeans in not seeking permission, not heeding spiritual dangers, et cetera, et cetera, says nothing.

GORDON J:   I may be wrong, but when I read paragraphs 19 through to 23 inclusive, it seems that if you start with 19, the Full Court identifies the two reasons, in a sense, or the two consequences of the custom.

MR WALKER:   Yes.

GORDON J:   One is protection from spiritual dangers.  The second is protection of sacred and religious sites.

MR WALKER:   Yes.

GORDON J:   When you get through to 23, I think if you read it with 22 and then 23, the fact that someone has not sought permission does not, in effect, detract from both the existence of the custom and the rationale.

MR WALKER:   May it be immediately conceded as a matter of common sense without particular anthropological evidence, that if a custom is disproved by one infringement or infraction of it, this is an entirely useless body of learning.  Of course, “custom” – the very word – does not require that it be destroyed as soon as it is departed from.  We are not basing ourselves on any such quixotic argument.  Our argument simply is that the way in which the matter is expressed, particularly in 21 and 22 – the opening of 22, putting it so strongly – is one which opens the door to a radically different and, in our submission, wrong approach.  Whether it be wrong is self‑evidently of importance and, in our submission, is therefore worthy of this Court’s attention in an appeal.

May I turn then to the matter which more obviously goes to principles of law.  It can be said at once, bearing in mind that the Native Title Act is designed, as it is put, to recognise rather than create native title, that the role of the concept of extinguishment is at the heart of the matter because that which has been extinguished will be regarded as so in a determination of that which exists so as to be recognised.

Therefore, the massive and significant modification of that approach – what might be called the general recognition approach – by the non‑extinguishment principle is a very important part of the architecture of the Native Title Act and thus it follows that carve‑outs from the application of the non‑extinguishment principle are equally important.  They are part of the essential architecture by which the political compromise was effected in statutory form.

The political compromise in the particular provisions with which we are concerned is one which overtly turns to previous dealings – I use the word neutrally; I will come to the specifics in a moment – with land in what might be called the public interest or for purposes which public authorities regard as being appropriate for land in question. 

We know for sure that these dealings – which is “reservation, proclamation, dedication, condition, permission or authority” – a collocation to which I will come back in a moment – we know that those dealings cannot be regarded as dealings under which the beneficiaries of them can exclude anyone else, let alone traditional owners, from the land.  We know that because that condition concerning the non‑existence of such dealings is side by side with the other condition – paragraph 47B(1)(c) – namely, that:

one or more members of the native title claim group occupy the area –

at the same time, and that must mean lawfully occupy.  So, one has the idea of “reservation, proclamation, dedication, condition, permission or authority”.  The first point is that, of course, as my friend correctly puts it, every case of necessity will concern what he appropriately called the intersection between those statutory terms and the particular dealing in question, whether it be legislation or whatever reservation, et cetera.  That is the nature of things. 

That does not make this not of general importance.  That rather emphasises that matters of general approach by the interpretation of subparagraph 47B(1)(b)(ii) are of great importance to the administration of the Native Title Act and to those advising for and against claims, in particular, for anybody charged with the difficult task of proposing or adjudicating on the terms of determinations, bearing in mind the non‑extinguishment principle and its effects under subsections (2) and (3) of 47B.  Now, mining licences are not peculiar or rare beasts in this country.

GORDON J:   This is not a mining licence; this is an exploration licence.  It is a bit different.

MR WALKER:   Quite so.  I have started with mining leases.  Mining leases are not strange.  In every jurisdiction under various titles something precedes the grant of mining leases.  Sometimes they are called exploration licences; sometimes they are called other matters.  It does not matter for present purposes.  There is, in other words, the national experience of phenomena differently named and all having a common core that there are rights, sometimes in the nature of duties, but we will leave that aside at the moment, there are rights granted covering land for the evident perceived public good of exploiting the public resource which is the mineral contained in the land.

That is plainly within – and there can be no doubt about this – the ambit of the intended purpose of 47B(1)(b)(ii) because whether you call them exploration licences or, for that matter, that which may ensue after such activity, a mining lease, it will be covered by three, perhaps two, of the dealings in that list – that is, condition, permission or authority.  Now, in our submission, there can be no doubt – we think this is not contested – in terms of what I might call the simplicity or sharpness of the issue presented to this Court in a proposed appeal that the exploration licences in this case were at least permissions or authorities.

GORDON J:   I do not think there is any dispute about that aspect, is there?

MR WALKER:   No, I think not.

GORDON J:   I thought the dispute was about the extent to which it satisfied the last three lines.

MR WALKER:   Quite so.  Attention is focused on permission or authority.  As a matter of ordinary English and, indeed, legal logic, to say that a permission requires something to be done is unnatural.  My learned friend uses the notion of jarring.  If there is jarring it is Parliament that jars by saying “permission” and my learned friend glossing the words that follow, that is, “is to be used” as involving require. 

There is no doubt that the Full Court held – I lose count of how many times they used the word “require”; it was about nine times – they held that we lost because the mining licences did not “require”.  There is a contentious footnote we can utter to that and immediately I will not spend any time on it because it is particular to this case.  Section 63 of the State Act plainly does in terms “require”.  It is a condition of the licence that there be exploration in plain terms, explicitly.  Furthermore, section 63 contains, though it not be necessary – if requirement were necessary – a sanction, namely, forfeiture. 

There is, as it were, a straw man erected by the Full Court, but it has misled them into regarding these exploration licences as not fitting within 47B(1)(b)(ii).  It is the general point that, in our submission, is of more importance rather than observing that they were wrong not to give ordinary literal weight to section 63 requiring exploration.  That is because permission or authority of its nature does not require something; it permits it – that is, it admits of a possibility.

If one has to use ordinary English as a gloss – and unless you are simply parroting the words of the statute, you are usually driven to something like that – there is therefore nothing really wrong about saying that the “is” here comprehends or includes, in the case of permissions or authorities at least and perhaps in the case of conditions, “may”. 

Let me explain that last.  A condition, of course, is a word used to describe something which may depend for its application on a contingency:  if X happens then Y must follow.  That is a kind of condition.  That, again, admits of a possibility.  If one is thinking about prediction, it does not require certainty.  If one is thinking about normative requirement, it is not compulsion.

In our submission, there is a very important point never considered and not to be tangentially gathered from any of the learning promulgated by this Court about this Act to date about whether something which is a permission or authority must nonetheless, we say impossibly, at the very least oddly, also be a requirement or a prediction of certainty in order to fit within the description of a permission or authority under which whole or part of the land is to be used for public purposes.

GORDON J:   I thought that was that last bit where the Full Court in effect said, “Listen, we can get through, in effect, the first two hurdles, but the third hurdle is that there is no whole or any part of the land that is to be used for a particular purpose”.

MR WALKER:   That is because it all depended upon the possibility of what may happen.  Your Honour is right.  That is how they reason.  In our submission, that is completely at odds with the notion of a permission or authority.  A permission or authority does not compel any use, let alone in any particular part, and it is for those reasons – and the reference to “part”,

of course, means that any part – you do not have to designate it by metes and bounds – if any part of the land is a part of the land under which, et cetera, then the whole of that land is removed from the disregard of extinguishment with which section 47B is concerned.

The reference to “part” explicitly in a statute is enough to make good our proposition that naturally enough you do not have to indicate that there is any particular part that will, as a matter of prediction, or must, as a matter of requirement, be used.  All you need to find is it is permission or authority under which it is to be used in the nature of a permission or authority.  The only way under which it can be said to say land is to be used is that it permits of a possibility.

It is for those reasons, in our submission, that there is something fundamentally important about the first point that deserves the full attention of this Court in an appeal. The passages in particular to which we have drawn attention in our written submission where it is clear that the Full Court require requirement or require compulsion or, worse, require exclusivity will mislead and deflect future applications of section 47B in the case of an exploration licence, for example, in a way that would be most serious for the operation of the Act. May it please the Court.

KIEFEL J:   Yes, Mr Glacken, anything in reply?

MR GLACKEN:   Some short observations, your Honours, dealing with the possession ground.  If your Honours were to note the form of the determination which appears in application book 2, page 490, clause 4, the complaint is, about paragraph (a), speaking as a:

right as against the whole world to possess, occupy, use and enjoy the land –

Can I draw your Honours’ attention to the text of section 22(5) of the Act which is reproduced at page 570 of the book, relevantly paragraph (e).  The statutory language recommended for some cases where there is a non‑exclusive pastoral lease is for the Federal Court to say whether the rights confer possession, occupation, use and enjoyment to the exclusion of all others.  We say that the complaint about the drafting of the determination is exactly that.  It is not materially different in substance.

As to the substantive content of the custom, your Honours were taken to paragraph 24 of the Full Court reasons.  Can we make a couple of short observations about that passage?  It is at page 389 of the application book, volume 1.  I had given that passage a tick in the margin.  It correlated with what the trial judge had said at paragraphs [400] to [401] about Europeans on pastoral stations.  In other words, the Banjima could not exclude the licensees of a pastoralist or the pastoralists from coming onto the country.  At paragraph [406] his Honour refers to the evidence, which includes “old men saying my ancestors gave me this right that we have continued to speak for country and protect sites of importance on the country”.  As a matter of law, it could not be enforced to the exclusion of Europeans who had a valid title to enter.

To be clear, the observations of Straker, the pastoralist inspector mentioned at paragraph 20 of the Full Court reasons, the detail is given by the trial judge at page 14 of the book, paragraphs [49] to [51].  Perhaps I should have been clear.  Straker was inspecting the area in the 1890s.  Sovereignty occurred in 1829.  Straker gives reports of the Hamersley Aborigines spearing and threatening to spear pastoralists for coming onto their country.  That is some generation or so since sovereignty. 

It is not unlike the findings in the Blue Mud Bay Case below in the native title proceeding, not what went to the High Court, of the spearing of Japanese pearlers by the Yolngu of Arnhem Land.  It is of no different quality, but we emphasise the inquiry is about the observance of custom and not the exercise of particular rights.  What the Full Court said at paragraph 24, in our submission, gets a tick as going to a factual finding.

As for section 47B, we think that the argument just developed as to exploration licences preceding the grant of a mineral lease exposes the very difficulty in the State’s case. If your Honour goes back to the text of 47B at page 414, the mineral lease, when granted, will fall within (i). We make the point that there is no requirement for a thing within (i) for the land to be used.

If one goes to the definitions of leases in the Act, at section 245 and following, we see statements of purposes that the land may be used for commercial purposes, mining purposes and so forth.  The requirement – a composite expression found in (ii) of the land “is to be used” in the case of exploration licences – fortifies, not undermines, our view of things of the contrast between the situation of a mining lease and an exploration licence.

Finally, your Honours might recall the debate in Brown v Western Australia, whether the grant of a mineral lease extinguished native title rights to access and use the land.  This Court observed that there was no necessary inconsistency because, amongst other things, there was no requirement in the mineral lease for any portion of the land to be used. 

Now, that resonates for the analysis of the structure of section 47B and I mention that we can illustrate the point by way of pictorial terms in application book 2. At page 598 there is a map of the areas of the

exploration licences and the parcels of vacant Crown land captured or straddled. 

Your Honours might note for one illustration the larger area, E47/1490, is one particular exploration licence.  You will see an insert 2 which has a little speck, UCL 009.  As the Full Court said, in the terms of the mining legislation, such as it is, there is nothing by which one can say the area in question, the UCL parcels, is to be used.  If your Honours please.

KIEFEL J:   Mr Walker, I omitted to draw to your attention the first respondent’s submission that an appropriate condition for leave would be that their costs be covered by the State, this being something in the nature of matters of general importance or test cases.

MR WALKER:   Yes, a test case.  Everything I have said is to that effect, yes.

KIEFEL J:   We will adjourn for a short time.

AT 12.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.08 PM:

KIEFEL J:   We consider that there are insufficient prospects of success in this matter to warrant a grant of special leave.  Special leave is refused with costs.

MR WALKER:   May it please the Court.

KIEFEL J:   The Court will now adjourn until 10.15 am on Tuesday, 23 August in Canberra.

AT 12.09 PM THE MATTER WAS CONCLUDED