State of Western Australia v Manado & Ors; State of Western Australia v Augustine & Ors; Commonwealth of Australia v Augustine & Ors; Commonwealth of Australia v Manado & Ors

[2019] HCATrans 132

[2019] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P4 of 2019

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Applicant

and

ERNEST DAMIEN MANADO AND CECILIA CHURNSIDE AND ALEC DANN AND BETTY DIXON AND WALTER KOSTER AND PHILLIP McCARTHY ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

SHEFFIELD RESOURCES LIMITED

Fourth Respondent

JAMIE PETER BURTON

Fifth Respondent

VICTORIA JANE BURTON

Sixth Respondent

KURT ELEZOVICH

Seventh Respondent

YEEDA STATION PTY LTD

Eighth Respondent

J D ARROW

Ninth Respondent

S J ARROW

Tenth Respondent

Office of the Registry
  Perth  No P5 of 2019

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Applicant

and

RITA AUGUSTINE AND ELIZABETH DIXON AND CECILIA DJIAGWEEN AND IGNATIUS PADDY AND ANTHONY WATSON ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

CLIPPER PEARLS PTY LTD

Fourth Respondent

THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD

Fifth Respondent

Office of the Registry
  Perth  No P6 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

RITA AUGUSTINE AND ELIZABETH DIXON AND CECILIA DJIAGWEEN AND IGNATIUS PADDY AND ANTHONY WATSON ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

CLIPPER PEARLS PTY LTD

Fourth Respondent

THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD

Fifth Respondent

Office of the Registry
  Perth  No P7 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

ERNEST DAMIEN MANADO AND CECILIA CHURNSIDE AND ALEC DANN AND BETTY DIXON AND WALTER KOSTER AND PHILLIP McCARTHY ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

SHEFFIELD RESOURCES LIMITED

Fourth Respondent

JAMIE PETER BURTON

Fifth Respondent

VICTORIA JANE BURTON

Sixth Respondent

KURT ELEZOVICH

Seventh Respondent

YEEDA STATION PTY LTD

Eighth Respondent

J D ARROW

Ninth Respondent

S J ARROW

Tenth Respondent

Applications for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2019, AT 9.59 AM

Copyright in the High Court of Australia

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, with MS S.J. KEIGHERY I appear on behalf of the State of Western Australia in each of the four matters.  (instructed by State Solicitor’s Office (WA))

MS R.J. WEBB, QC:   If it please the Court, I appear on behalf of the Commonwealth of Australia with MS C.I. TAGGART.  (instructed by Australian Government Solicitor)

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MR A. ROMANO for the first respondent native title party in each matter.  (instructed by Kimberley Land Council Regional Office Broome)

NETTLE J:   Mr Glacken, if I could start with you.  Having read all of the submissions with which we have now been favoured, I think I can say that we are both tentatively of the view that the application raises questions of importance which would tend to warrant a grant of special leave.  Do you wish to say something further orally in opposition to that view?

MR GLACKEN:   Yes, very much so.  Can I perhaps that, like Mr Hutley, I am somewhat of a seat warmer.  We have corresponded about the conditions of a grant of leave.  My clients have limited resources.  In cases like, for example, Queensland v Congoo, there was a condition of that sort imposed on a grant of leave.  We have asked for it.  It has been resisted by the government parties.  However, it is our submission that there should not be a grant principally on the basis that any appeal would lack sufficient prospects.  In order to reverse the holding of the Full Court and to reinstate the trial judge’s determination, the applicants need to establish that a legislative confirmation pursuant to section 212 of the Act results in an interest in relation to land that is to be included in a determination of native title under section 225(c) of the Act.

Although the Commonwealth attempts to sidestep the point by submitting that the section 212 confirmatory law has effect whereon not so included, that cannot work given that the Commonwealth, as with the State, seeks to reinstate the trial judge’s form of the determination which has the section 212 confirmatory law as a section 225(c) interest.  Both applicants therefore need to demonstrate the correctness of the trial judge’s orders.  There are insufficient prospects of that occurring essentially because the trial judge’s orders transform or convert what is an unenforceable ability or liberty to access areas into a right in rem enforceable against the world.  The orders inverse the correct legal order, contrary to the text of section 212, that only confirms an existing state of affairs rather than creating something new and it is contrary to the function of section 225 which is to determine or declare existing rights and interests in relation to land and waters.

Your Honours, the Full Court identifies this via application book, volume 1, paragraph 158, if I can take your Honours to it, and if I can somewhat paraphrase and read through it, so it is volume 1, page 493, paragraph 158.  Their Honours commence with the expression in the second line that where section 212 is:

to permit the conversion of an ill‑defined custom or convention . . . into an “interest” . . . for the purposes of identifying other interests in a native title determination . . . to create a broad new right to access and enjoy places such as those found in the determinations, where no such right has previously existed, and so will constrain the exercise of existing native title rights and interests –

Your Honours, might we call that the conversion point, borrowing that language, or perhaps the inversion point.

GORDON J:   Is that not the question?  The question which arises is how one deals with the interaction between 212 and 225, especially subparagraph (c) ‑ what is a privilege in the context of the definition of “interests” and whether it has the sort of Hohfeldian idea of inability to prevent?  So all of those questions are live questions and that is the thing which is of critical importance, is it not?

MR GLACKEN:   Yes, but can I unpack the conversion point in three steps but perhaps answer your Honour’s question more directly.  No matter how Western Australia puts it in terms of Hohfeldian analysis or not, the very point of his Honour’s orders was to transform this liberty into a right in rem, therefore enforceable ‑ ‑ ‑

GORDON J:   That is the first bundle of issues.  Call that the sort of questions of construction.  There may then be a separate question about the way in which, assuming it satisfies one of those limbs, how that is recorded.  I thought that was your, in effect, more substantive or equally substantive point; that is, assuming that even if you lost that battle, the question is how it is reflected in the determination in questions of evidence.  I thought that was sort of a – am I wrong about that?

MR GLACKEN:   Your Honour might be going to the way the Commonwealth puts this case.

GORDON J:   No, I am asking you.  I thought you said the construction was right by Justice North.  The separate question is, well, assuming that is even right, there is a dispute about the way in which it has been recorded.

MR GLACKEN:   No, that is not the way I put it, your Honour.

GORDON J:   It is the way it is put against you.

MR GLACKEN:   Yes.  The Commonwealth puts it that section 212 can operate whether or not included in a particular clause under section 225(c).  They point to clause 7 of the determination which says that native title is exercisable in accordance with laws of the Commonwealth and the State.  If that is so, we win, because the Commonwealth seeks to reinstate the trial judge’s orders which put the confirmatory law in a different place.

Could your Honours bear with me?  I want to unpack this conversion or inversion point by three steps.  We say that once the function of section 212 is properly appreciated that any appeal lacks sufficient prospects, bearing in mind that the appeal seeks reinstatement of the trial judge’s form of orders.  As I said, the Full Court grasped this vice at paragraph 158, and can we say that the three steps are the correct legal order to unpack things are as follows. 

The first step is that there no challenge to the conclusion of the Full Court at paragraph 173 that there is no demonstrated common law or statutory right of public access and enjoyment in relation to the areas in issue.  What follows from that first step, your Honours, is that these areas are Crown lands.  Without having a common law or statutory right to access and enjoy the areas, members of the public could not resist ejectment by the Crown from what are Crown lands.  The Commonwealth adverts to that power in its application, paragraph 30, application book 647.

I will not go to it, but we have provided the Court an extract of the judgment of Justice Gummow in Wik Peoples v Queensland 187 CLR 1 at 190‑2 where his Honour deals with Crown land offence provisions and referring to the power of the Crown to eject persons and citing at footnote 710 Commonwealth v Anderson.  In other words, there is no doubt about the power of the Commonwealth to eject persons from Crown lands.  Therefore, the argument put against us that what is not prohibited is permitted misfires, given the countervailing force of the Crown.  That is the first step.  So at the moment before section 212 came into being, anyone who could be on Crown land could be ejected from the land by the Crown.

NETTLE J:   Up until unless they were, they were entitled to be there.

MR GLACKEN:   Well, there is a liberty.  The most that can be put is that they are vulnerable to ejectment by the Crown.  That is the first step.

NETTLE J:   We will accept that.

MR GLACKEN:   So, as I said, this is what I call the trial judge’s orders invert these steps, invert the proper relationship.  The second step ‑ ‑ ‑

NETTLE J:   Did the trial judge hold contrary to the fact that members of the public on the coastal land could be ejected by the Crown?

MR GLACKEN:   There is no finding about that, no.

NETTLE J:   So what is the problem with that aspect of the reasoning?

MR GLACKEN:   What we say is that the result of the orders is to convert on the part of members of the public a right against the whole world, including the Crown.

NETTLE J:   Why must it be a right as against the Crown, rather than one which is subject to the rights of the Crown?

MR GLACKEN:   Well, one would need to read back into the determination – the determination says that the native title rights are subject and exercisable in accordance with laws, not with other interests though.  That is the first step though.  The second step dovetails it.

NETTLE J:   Just pause at this point, because I am not quite getting it.  There is a sort of a jus spatiandi or right of the public, it is said, to wander at large on the shore until and unless the Crown ejects them.

MR GLACKEN:   Not a right.  It can never be characterised as a right.

NETTLE J:   Well, call it a liberty.

MR GLACKEN:   A liberty.

NETTLE J:   Call it a mesonomic right.

MR GLACKEN:   I will call it a liberty.

NETTLE J:   It does not matter.  There was an entitlement to do so.

MR GLACKEN:   A liberty or an ability.

NETTLE J:   In Hohfeldian terms, yes.

MR GLACKEN:   And transformed by the trial judge’s order to a right in rem against the world, including the Crown.

NETTLE J:   Does it have to rise that high in order to be an interest for the statutory purpose?

MR GLACKEN:   It has resulted in an interest.  The answer is yes.

GORDON J:   Why?

MR GLACKEN:   Why?  Because section 225 can only declare rights and interests in relation to land. 

GORDON J:   Yes.

MR GLACKEN:   Now, they need not be proprietary in the sense of Ainsworth v National Bank ‑ ‑ ‑

GORDON J:   Of course not.  Look at the definition of “interest” in subsection (b).

MR GLACKEN:   And one sees the words:

right . . . over, or in connection with:

. . . 

(i)       the land or waters –

GORDON J:   No:

any other right . . . charge, power or privilege over, or in connection with:

(i)       the land or waters –

MR GLACKEN:   But, nevertheless, “over, or in connection with the land or waters”.

GORDON J:   Very broad terms.

MR GLACKEN:   And it dovetails section 225, which is declaring interests “in relation to . . . land or waters”.

NETTLE J:   Well, it is breadthening rather than narrowing the ambit of it.  “In” or “in relation to” takes it beyond simply “in”.

MR GLACKEN:   That is so, but it does not deny the character that it has to be something to do with land, if I can put it that way.  I just wanted to come to the second ‑ ‑ ‑

NETTLE J:   It is a privilege to wander upon the shore until and unless the Crown says no, is it not?

MR GLACKEN:   That is so, but what the orders then do is elevate it into something else.

GORDON J:   I do not understand the elevation point.  I do not understand what it is ‑ ‑ ‑

MR GLACKEN:   Well, your Honour needs to hear me on the second and third steps.

GORDON J:   Right.

MR GLACKEN:   As I said, I want to unpack the ‑ ‑ ‑

GORDON J:   I know, so just tell me what the second and third steps are.

MR GLACKEN:   The second step is that, in contrast to this alleged public liberty, at all times there existed enforceable native title rights to access, remain on and to use these areas. 

GORDON J:   Yes.

MR GLACKEN:   The native title rights are recognised by the common law and may be protected by the grant of appropriate legal and equitable remedies as against the Crown and members of the public.  Save for areas of tidal waters, the native title does not yield to any rights of the public.  This Court recently looked at the notion that the infringement of native title rights may be prevented by remedies in Griffiths 93 ALJR 327 at paragraph [83]. I will get to the orders in a moment, but the orders reverse that relationship. Let me complete the argument.

The third step, the conclusion of the Full Court at paragraph 135, application book 487, that section 212 does not provide for “the creation of new rights of access but merely, as the provision says” provides a capacity to confirm something that already exists is plainly correct.  The State in its reply – application book volume 2, page 554, paragraph 3(b), acknowledges that the statutory confirmation did not “transform” an ability or liberty into a right.  The Commonwealth also in its primary case accepts that to be so.

Your Honours have seen the text of section 212 at application book 523.  It simply confirms something that exists, an existing state of affairs.  Unpacking the conversion point by those three steps – and I appreciate your Honours’ patience – the punch line is this.  Legislative confirmation under section 212 can have no effect on native title above any effect of the thing that previously existed that is confirmed under section 212.  Here, as the native title rights did not yield to public access before legislative confirmation, they could not yield post‑confirmation.  However, on the trial judge’s orders, an ability or liberty of the public to access these areas previously not enforceable against the Crown or the native title holders is enshrined as part of an in rem judgment made under section 225, enforceable against the world including the Crown and native title holders.  That is what we mean that the proper legal order or ranking of rights is thereby inversed, and that is the point the Full Court is making at paragraph 158.

Can I take your Honours to the form of orders just to make that clear what is the vice in the trial judge’s orders.  Volume 1, page 328 – it is the same form in both sets of proceedings.  If your Honours turn to page 331, if I can run through it fairly quickly, your Honours will see at clause 5 the native title rights to access and be on these areas.  Clause 7 states that the rights “are exercisable in accordance with” the “laws of the State and the Commonwealth”, which is the Commonwealth’s alternative argument that that can pick up the confirmatory law; so be it.  Clause 9 then specifies what are other interests.

GORDON J:   You accept this is 225(c)?

MR GLACKEN:   Yes, and hence the heading.

GORDON J:   Yes, correct.

MR GLACKEN:   Then I will go to the schedule in a moment to identify the relevant thing we are talking about, but item (12)(f) at page 351 are the public rights of access.

GORDON J:   Yes.

MR GLACKEN:   Then if your Honours go back to page 332, the statement of the relationship between the two sets of interests includes in paragraph (c):

to the extent of any inconsistency, the native title rights and interests yield to the other interests.

If one accepts, as the State does, that section 212 does no more than confirm something that exists and if one accepts, as the State does, that what exists is no more than a liberty and if one accepts the unpacking of the conversion point that we have done, prior to 1994 the native title rights did not yield to any public right of access; they prevailed.  The effect of these orders is to inverse that proper ranking.  That is the point that the Full Court gets to at paragraph 158.  Anything more that I would say in response to your Honours would be an elaboration of that central point.  I can elaborate by reference to the detail of the section, the history ‑ ‑ ‑

NETTLE J:   That is the essence of the argument then?

MR GLACKEN:   Yes.

NETTLE J:   Yes, thank you.

MR GLACKEN:   We have provided an extract of the extrinsic material on the section which includes the – what its point is, was to say that anything that occurs after the commencement of the native title regime would be a future act.  It confirms our construction and the construction of the Full Court that the provision does not create any new rights and, as I said, if one accepts those propositions that it was only a mere liberty, no enforceable right, the vice in the trial judge’s orders that our opponents seek to reinstate is to inverse the proper legal relationship and turn something that was previously vulnerable to native title, if I can put it that way, as a new and paramount interest prevailing over the native title.  That is the point.

NETTLE J:   Thank you, Mr Glacken.  Mr Solicitor.

MR THOMSON:   The way in which the application is resisted is by saying that there has to have been the acceptance of a positive entitlement and that we cannot get there by simply saying that there is an ability or a liberty.  Can I just deal with that point directly?  The State says that the effect of section 14 of the Titles Validation Act, read in combination with section 212(2) of the Native Title Act, is only to confirm the existence of the ability or liberty of a member of the public to access and enjoy the coastal areas, but not in any way to strengthen that ability or liberty by transforming it into a positive legal entitlement of public access and enjoyment.

GORDON J:   Can I ask a question about the form of the order apropos that point?

MR THOMSON:   Yes.

GORDON J:   Were the opening words of subparagraph (f) in the schedule necessary?  In other words, was it necessary to refer to the Validation Act at all?

MR THOMSON:   Well, it is the Validation Act that is the law that is permitted by section 212(2), so section 212(2) permits a law of the State to ‑ ‑ ‑

GORDON J:   I know that.  That is not my question.  My question is, when you are determining the 225 ranking of interests and identifying what is to be in the determination, the fact of a reference to the Validation Act is interesting but irrelevant, is it not, in the sense that you are permitted under 225(c) to record other interests?

MR THOMSON:   Yes.  Can I suggest that the reason why it is referred to is because the phrase “public access to and enjoyment” is the phrase that is utilised in 212(2) and in the Validation Act and that the reference to the relevant legislation is to identify that the nature ‑ the juridical nature of what is the interest goes nothing beyond what is described as public access and enjoyment.  So that the reference to it is to demonstrate that the intention of these orders is only to pick up the interests to the extent it can be described in those pieces of legislation.

GORDON J:   So it is a limiting provision intended to limit by identification and specification that which is to be excluded?

MR THOMSON:   Yes, precisely, because as the reasons of the Full Court demonstrate, there is some debate that they dealt with concerning how to identify what is meant by the words “public access to and enjoyment”, and so the reference there is only to pick up what is meant by “public access to and enjoyment”, which is an ability or a liberty.  So your Honour is quite right, you could have used different words to identify the juridical nature of the vital interest, but the court has adopted these words to make sure it was precisely consistent.

Can I then say that what the State says about the confirmation of the ability or liberty means that the ability or liberty continues to exist but by reason of section 212(3) of the Native Title Act the ability or liberty “does not extinguish any native title rights and interests”.  The effect of confirming an ability or liberty of members of the public to access and enjoy coastal areas effectively confirms the absence of any prohibition which prevents members of the public from exercising the public access to and enjoyment of coastal areas.  So it is confirmation of the absence of a prohibition.

In other words, the native title rights which are created by the Native Title Act cannot be exercised in a way which creates a prohibition because the plain legislative intention of the Act is to preserve the situation where members of the public are not subject to any prohibition which arises from the operation of the native title rights which have been recognised and granted under the Act.  So, in a sense, the operation of section 212(2) in combination with the Validation Act is to clear the ground to make sure that the absence of prohibition remains the case.  It is not to create a positive legal entitlement.  So that, we say, deals with the point that has been raised against us. 

Can I say this:  this is a point of difference between the way in which the State and the Commonwealth put the case.  The State says it is and only has a confirming effect.  The Commonwealth embraces that it may well have a positive entitlement effect.  So the Court if it grants special leave will have both arguments deployed before it and we would say that the way in which those arguments are now articulated would mean that the Court can deal with this matter of public interest and that there is in fact something of importance for the Court to consider.  So that deals, we hope, with the point which is supposed to summarily dismiss the application.  I think the only other point that has been made is the question about costs.  We are in the Court’s hands.

GORDON J:   If there was a grant of leave, why would you not have the usual costs order imposed on you?

MR THOMSON:   Yes, that is precisely it.  So unless there is other points ‑ ‑ ‑

GORDON J:   By usual costs order, I mean why would it not be that you would not disturb the orders below and deal with the payment of reasonable costs?

MR THOMSON:   Yes, depending on how the result turns out, that is precisely right.  I think we have actually in our application said that we will not seek costs, but I think that they are saying that they are – even if they lose, they would like us to pay their costs.  In our application we have made it plain in the orders that – so in paragraph 50 of our application it says:

The Applicant does not submit that any special order should be made as to costs.

But we have now said that we will not – in our reply we have said we will not seek costs – in paragraph 13, I am sorry, it says:

The State accepts that the parties bear their own costs and no costs should be ordered against either party.

The claimants want more.  They want us to pay their costs even if they lose.  We say that it should just be dealt with on the outcome of the case but it should not be a factor upon which the grant of special leave depends if the Court thinks other conditions should apply.

NETTLE J:   What about the costs below?

MR THOMSON:   There have been no costs below.

NETTLE J:   Thank you.  Ms Webb.

MS WEBB:   Thank you, your Honours.  Just firstly I think it would help if I stated the way the Commonwealth puts its case to understand some of the questions that have come from the Bench.  In the Commonwealth’s case, we do not contend that prior to the enactment of section 14 which relied on section 212 of the Native Title Act that there was any right or interest in the public at large by which the public could access and enjoy coastal areas.  There was what you might call a liberty or an expectation or ability to access these areas that had long been understood to be the case.  That was because of the special character of those coastal areas as places which the public would use and enjoy and that had long been recognised and the expectation, one might say, was that the Crown would accommodate the public’s use and enjoyment of those particular areas ‑ not all Crown land, not all allocated Crown land – those particular areas.

But once native title was recognised, Parliament identified that that longstanding convention or expectation that was based on really no person other than the Crown having an interest in those accessible areas, that understanding of course was based on if the Crown created private interests, that ability to access those areas was taken away.  But once native title was recognised as existing in Mabo, that situation became uncertain ‑ this ability of the public to access those areas of a special character.  So what the Parliament did was enact section 212(2) to facilitate States and Territories in preserving coastal access and they intended that that public access be given primacy over native title in those areas.  That can be found from the debates and in fact from the parts of the debates in the various sections that the Full Court takes some extracts that is made clear that that is what was intended by Parliament.

In that way, we say that section 14 has effect.  It is the Act or the validating Act, however it is referred to, that is enacted by a State or indeed the Commonwealth or a Territory pursuant to section 212(2) which by statute then will confirm an ability of the public to access those coastal areas despite the existence of native title, and that gives a member of the public going onto those areas a statutory authority to be there.  So that if a native title holder came to somebody on a beach and said, “Look, I have got native title here.  You have got to move on”, that member of the public can point in Western Australia to section 14 of the Validation Act to say, “Well, this is the authority by which I am here”.

Now, be it a statutory right or interest, or even a privilege as against the native title holders in the sense that they cannot be moved on by a native title holder, it does not require it to be within the determination as an interest for that law to have effect.  It takes effect in accordance with its terms on its enactment.  Indeed, it is referenced in the determination in the part of the determination that says at application book 331 in paragraph 7 that:

The native title rights and interests are exercisable in accordance with and subject to the:

. . . 

(b)laws of the State and the Commonwealth, including the common law.

There has been no suggestion that this is not a valid law of the State.

GORDON J:   I put this to Mr Solicitor and that was in a sense that the inclusion is probably unnecessary in the determination.

MS WEBB:   The inclusion and particularly the reference to is unnecessary, but it is helpful, and it is helpful in the sense that it directs people to where they will go to find these other interests, which is the next point.  Although it does not need to be in the determination to have force and effect, it is helpful to be in there, but in any event section 14 does something.  It takes something that was an expectation the Crown may not do certain things and it turns into what we would say is capable of falling within the definition of “interest” in section 253 and therefore can be in the other interests clause. 

The difficulty is there are two steps.  Firstly, you construe section 212(2) and then the next question is, is it an interest?  Some of the difficulty we see with the Full Court reasoning and in fact which we think underpins the difference between the State’s approach and the Commonwealth’s approach is that conflation in parts of the Full Court judgment of 212 and an interest almost as though if it is – it has to be a right to even come within the confirmatory scope of section 212(2).

So our first question is to say what is the confirmatory scope of 212(2)?  Does the ability of the public to access these areas fall within that scope?  If it does, section 14 can operate to confirm that and when it does, it does something.  So that in effect and in short answer is the Commonwealth’s case and hopefully answers many of the questions your Honours may have in respect of that.

It also answers why there is a difference between the State’s questions and the Commonwealth’s questions.  Our first starting point is to say we do not see where the Full Court has in fact found that the liberty or the ability to access these areas was an existing public access.  We in fact say that is expressly what they did not find, but it should have come within the confirmatory scope of section 212.  So, if there is anything else, your Honours, but that explains our case and why we put it the way we do.

NETTLE J:   Thank you, Ms Webb.  Anything in reply?

MR GLACKEN:   First of all, just to be clear on costs, the condition that we would seek, which has been imposed in other cases of this order where the interests at stake go far beyond those of my clients, would be that the government parties pay the costs of the first respondents in any event.  Then can I just deal with a short matter of reply.  The question of Justice Gordon going to item 12(f) of the determination highlights what is our submission of the vice in the form of the trial judge’s orders.  It is expressed to be an interest pursuant to the confirmatory law.  It is not expressed to be a pre‑existing interest in the form of access.  Now, that then feeds into the two cases that are put by each of the Commonwealth and the State, as I apprehend it. 

Western Australia put things on the basis that the effect of referring to the confirmation is to confirm the absence of prohibition against public access and it was said does not create an entitlement.  I go back to the form of the orders.  It is treated as an interest in relation to land under section 225(c), and by clause 10 of the determination it is treated as an interest that prevails over the native title.  So the orders do a lot more than what section 212 can do, on the State’s own case.

In terms of the way the Commonwealth puts its case, again if it is put that the confirmatory law is part of the bundles of laws, if I can put it that way, covered by clause 7 of the determination, then we would submit if that is the proper analysis of the part of section 212, we win because the Commonwealth seeks to reinstate the form of the trial judge’s orders that treats the confirmatory law as a prevailing interest under section 225(c).  If your Honours have section 225 handy – I think it is at volume 2, page 523 – I have already touched on the point that by definition one must have an

interest in relation to land, but your Honours note section 225(d), and that is a determination that needs to state:

the relationship between the rights and interests in paragraphs (b) and (c) –

that is, the native title rights and the other interests:

(taking into account the effect of this Act) –

The effect that prescribes the relationship is found in Part 2 of the Act dealing with past acts, intermediate period acts, previous acts and future acts.  The Court looked at the general regime in Griffiths recently.  Going back to Justice Gordon’s observation about the form of the order at item 12(f), when one looks to see what would be the effect of pre‑existing public access, one goes to Part 2 of the Act and says, well, is it a past act, is it a previous exclusive possession Act, et cetera.  While your Honours have page 523 of the application book, your Honours will note the terms of section 212(1) deals with what we might call the vesting of minerals, control of waters and then statutory fishing rights.  They are natural in the nature of interests that will engage Part 2 of the Act so one says what is the effect of those previous acts, if I can use that language. 

If we look at subsection (2), there are things that can be rights of interests.  Paragraphs (a) and (b), there may be riparian or statutory rights with respect to waters and foreshores.  Paragraph (da), stock‑routes, added in 1998.  Stock‑routes are treated as public works in extinguishing acts under the legislation.  Paragraph (e), public places, that evokes the analysis of Justice Windeyer in the Randwick Municipal Council Case.  There may be in effect statutory trusts by which members of the public have rights to access public places.  So one says what is the effect of those pre‑existing states of affairs for the purposes of a determination under section 225(d).  One finds the answer in Part 2.  What seems to be clear, certainly from Western Australia’s case, is that section 212 does not create an entitlement.  It can only confirm something that is pre‑existing, which is perfectly correct from the statutory text. 

NETTLE J:   I see the time, Mr Glacken.

MR GLACKEN:   That is the point.  One goes back to clause 10 of the determination, the inversing of the proper legal order, and the observations of the Full Court at paragraph 158.

NETTLE J:   Thank you very much.  I should say that in each appeal, certificates have been issued that the application for special leave was apparently served on all respondents but no appearance has been filed in P4 by the fourth respondent or the ninth respondent or the tenth, in P5 no appearance has been filed by the fourth respondent, in P6 no appearance has been filed by the fourth respondent, and in P7 no appearance has been filed by either the fourth respondent or the ninth respondent.

In each of the matters the Court is of the view that there should be a grant of special leave on condition that the appellant pay the first respondents’ costs of the appeal regardless.  Counsel, there will need to be some directions made, could I have copies of these distributed, please?  Mr Glacken, these will appear familiar to you, no doubt.  They are based to some considerable extent upon the directions that were given in the native title case last year in order to ensure that there is no replication, that there is only one common set of appeal books and that submissions are directed both in writing, by reference to appropriate cross‑referencing and orally specific to the questions.  Counsel, are there any difficulties with any of those directions?

MR THOMSON:   Not from our perspective, and I do not think we require increases in page numbers from our perspective.

NETTLE J:   Thank you.  Ms Webb.

MS WEBB:   No difficulties from our perspective, your Honour.

NETTLE J:   Thank you.  Mr Glacken.

MR GLACKEN:   I do not want to cause difficulty, but just in case if we are responding to two lots of arguments, whether we might have 25 or 30 pages in response.

NETTLE J:   Well, in that case I will put in order number 6 that the page number limit – order number 4, I should say – page number limit for the first respondents’ submissions in each matter is increased from 20 pages to 25 pages.

MR GLACKEN:   If the Court pleases.  I would estimate it is a one‑day matter, subject to intervention.

NETTLE J:   All of the same view?

MR THOMSON:   Well, I would have thought perhaps one and a half days because there are three substantive sets of submissions that might need to be taken.

NETTLE J:   Ms Webb.

MS WEBB:   Your Honour, between one and one and a half days.

NETTLE J:   Yes, thank you.  The matter will be set down on an estimate of one and a half days’ duration, on the basis of the following directions:

1.The notice of appeal is to be filed and served on or before 5 July 2019.

2.The appeal filed in relation to P4 is to be the lead appeal.

3.A joint core appeal book is to be filed and served by the appellants, the State of Western Australia and the Commonwealth, on or before 26 July 2019.

4.Each appellant’s submissions, any book of further materials and chronology is to be filed and served by 9 August 2019.

5.Each respondent’s (the claimants) submissions and any book of further materials to be filed and served on or before 6 September 2019.

6.The page number limit for submissions on the part of the first respondent in each matter is increased from 20 pages to 25 pages.

7.The appellants’ reply is to be filed and served on or before 27 September 2019.

8.The electronic joint book of authorities is to be prepared by the Commonwealth of Australia in a form directed by the Registrar and to be filed and served on or before 11 October 2019.

9.No hearing fee and no daily hearing fee is payable in relation to the appeals.

The Court will adjourn until 11 o’clock.

AT 10.42 PM THE MATTER WAS CONCLUDED