The Wik Peoples v The State of Queensland

[1994] FCA 633

633       9v-

JUDGMENT No, ..,-,.--I ...

M THE COURT OF AUSTRAIJA ) No. QG 104

D DISTR- 1

- 1

BETWEEN r g E WIK PE=

WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE, EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES

Applicants

AND :  -

First Respondent

AND :

Second Respondent

AND r AND

CORPORATION

Third Respondent

AND r

Fourth Respondent

AND :

Fifth Respondent

AND r OF THE

Sixth Respondent

M D :

Eleventh Respondent

Seventh Respondent

AND r ABORI-

Eighth Respondent

AND :  EmLuumm

Ninth Respondent

AND r and v

-

Tenth Respondents

AND :	PTY. LTpr
AND :	~JixuUu

Twelfth Respondent

AND :	mRIGINAL AND TORRES STRAIT I S L A N W
COMMISSION

Thirteenth Respondent

AND	I	O	J	HN	-	-
SHEPHERDSON, IAN and

Fourteenth Respondents

AND :	-	and
Fifteenth Respondents
AND :
Sixteenth Respondent

AND :  GEOPFRgY and

Seventeenth Respondents

AND :	WnES	and Qm6Lu&a
GQslzuK

Eighteenth Respondent6

Drunnnond J

2 September, 1994

Brisbane

1.         Pursuant to 0. 29, r. 2(a) the W r a 1 -,

the following question8 be determined separately	,
from any other question in the action on 17 October,	l r '

1994:  \

1. "Ha8 the power of the Parliament of Queensland to pass laws dealing with the leasing or occupation of lands for pastoral purpose8 within Queensland at any time been limited, by the proviao in Section 2 of the Hew South Walee Constit- Act 1852 (Imp.), the proviso in Section 4 of the Buatralian Waatg

   Act 1853 (Imp.), the Letter8 Patent issued on 6th June, 1859, or by Clause 17 of the Order in Council made on 6th June 1859 pursuant to that Act, or by Section 30 or Section 40 of the Conlrtitution Act 1067 (Qld.), to a power to enact only euch laws

as a

(a)	do not extinguish or impair Aboriginal title (if any) or poeseasory title (if any) of the Wik Peoplea which existed before the pew South w e e Conatitution Act 1852 (Imp.) took effect in the Colony of New South Wales; or
(b)	permit grants for paatoral purpose8 of leasea, licences or permissions which:

(i)    are aubject to a reservation in favour of the Wik People. and their predecessors in title of the rights and interests of the Wik Peoples and their predeceasora in title comprising their Aboriginal title l if any) which existed - . before the MW south

(Imp.) took effect in the

Colony of New South Walea;

(ii)   do not confer righta to exclusive possession on tile grantee8 thereof;

(iii)  confer only rights not inconsistent with the concurrent and continuing exerciae of the rights (if any) of the Wik

Peoplea and their predeceaaors in title

under their Aboriginal title (if any)

which exiated before the B w South

-Act (Imp.) took effect

in the Colony of New South Walea?'

If the anewer to each of the question8 in (1) is

"NO":

( 2	If at any material time aboriginal title or poaaesaory title exiated in respect of the land demised under the pastoral lease in respect of Holroyd River Holding a copy of which ie attached hereto ("Pastoral Leaae"):
(a) I8 the Paatoral Leaae subject to a reaervation in favour of the Wik Peoples and their predeceaaora in title of any righta or

interests which might comprise such aboriginal title or possessory title which existed before

the f t t

(Imp.) took effect in the Colony of New South

Wales?

(b) Does the Pastoral Lease confer rights to exclusive possession on the grantee?

If the answer to (a) is 'No" and the answer to (b)

is "Yesn	I
(c)	Does the creation of the Pastoral Lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such aboriginal title or possessory title of the Wik Peoples and their predecessors in title which
existed before the &W South Wales Cons-
bct 1 8 s (Imp.) took effect in the Colony of New South Wales?

Did the grant of the Pastoral Lease necessarily

(d) extinguish all incidents of aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the Pastoral Lease?

1. The costs of the amendment to the amended statement of claim which the applicants were granted leave to amend on 31 August and the costs of the proceedings of 31 ~ugust, 1994 and today be reserved.

3.         All parties have liberty to apply to discharge order 1, upon notice to the other parties, upon delivery

of the reserved judgment of the Pull Court.

1. The applicants file and serve affidavits containing all the evidence upon which they intend to rely in support of their claims in Chapter 17 of the pleading by 19 September, 1994.

2 .          Each respondent file and serve affidavits containing all the evidence upon which it intends to rely in relation to this particular claim by 30 September, 1994.

1. The applicants file and serve any affidavits containing evidence upon which they intend to rely in answer to mattere raieed by any reepondent in ite

   affidavit6 by 7 October, 1994.

4.         The applicants deliver to the solicitore for each reepondent an outline, including referencee to all authoritiee to be relied upon, of their argument6 in support of the claim made in Chapter 17 by 10 October, 1994.

1. Each reepondent deliver to the solicitore for the applicant6 an outline, including referencee to all authoritiee to be relied upon, of ite argument in anewsr to this claim by 14 October, 1994.

6.         Any party requiring the attendance for croee- examination of any deponent whoee affidavit hae been filed by any other party give written notice to that effect to the eolicitor for the party relying on the deponent as soon ae poeeible, but in any event no later than 10 October, 1994.

WZE:	Settlement and entry of orders is dealt with in
Order 36 of the - .

Us THE m E R A L CO-TRALU ) No. QG 104 of 1993

ICT 1

- )

BETWEEN:  m E WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE
SCHEDULE, EACH OP WHOM BRINGS THIS
PROCEEDING ON THEIR OWN BEHALF, AND ON
BEHUP OP THE WIK PEOPLES

Applicants

AND :  -

First Respondent

AND :

Second Respondent

AND :	Ileo~IUNAL	AND €SUNDER AFFAIRS
CORPORATION

Third Respondent

AND:

Fourth Reapondent

AND :  PTY. m

Fif th Respondent

M D : CIL OF

Sixth Respondent

AND:

Seventh Respondent

AND :

Eighth Respondent

AND :  -

Ninth Reapondent

AND :  and v

Jxwmmwm

Tenth Reapondenta

AND :  PTY. m

Eleventh Respondent

AND I JxwLmx

Twelfth Respondent

AND :	MORIGINAL AND TORRES STRAIT ISLANDU
COMnISSION

Thirteenth Reapondent

AND:	-1-
SHEPHERDSON, IAN  and

Fourteenth Reapondents

AND: -	and-
Fifteenth Respondents
AND :
Sixteenth Reapondent
AND :	GEOPPREY and

Seventeenth Respondents

AND :	MneS	and J x i i B u u
i3wuKm

Eighteenth Respondent8

GQXm:	Drummond J
r&tQ:	2 September, 1994
W #	Briabane  REASONS FOR m

On 26 May laat, I ordered that a number of iaaues arising in the proceedings be dealt with a8 preliminary questions. That hearing ia to commence on 17 October next. The Pull Court ha8 reserved judgment on an appeal by the applicant8 against thia ruling.

So far as the first question which I dealt with on 26 May is concerned, on Wednesday last the applicants sought leave to amend their application and statement of claim so as to limit the point raised by chapter 17 of their pleading, and no by question 1, to pastoral leases. The effect of the amendment is to deprive any answer to question 1 of any relevance to the parties, save to the extent that an answer to it might resolve, in whole or in part, the position as between the applicants and the holders of the pastoral leaees over lands the subject of the applicants' claims. The applicants also sought leave to join eight holders of pastoral leases over lands within the area the subject of the applicants' c l a h for native title made in these proceedings. One pastoral lessee, the ninth respondent, is already a party.

Senior counsel for the applicants stated that they were abandoning the claim made in chanter 17, save insofar as it relates to pastoral leases. In view of that, and in view of the absence of objection from the respondents, including

an order joining those lessees as respondents in the	the eight pastoral lessees, I allowed the amendment and made
proceedings.
Question 1 in its original form raised the question whether the power of the Parliament of Queensland to pass laws dealing with the grant of interests of any kind in lands within Queensland since 1859 has been limited to a power to enact only such l a m as do not extinguish or impair the Aboriginal or possessory title, if any, of the applicants
which existed before that date. The first and third respondents have proposed amendments to question 1 which identify two additional instruments, an Imperial statute and a set of letters patent which the applicants now rely on and which it is said, along with the other instruments originally identified in question 1, are of relevance to the answer to this question but which amendments, in effect, otherwise do no more than limit the issue originally raised by question 1 to whether the legislative power of the Parliament of Queensland to pass laws dealing with the leasing of lands for pastoral purposes is so limited.
Paragraph b(3) of the amended questions proposed by the first and third respondents raises only a question of legislative power, contrary to the applicants' submission that this question should not be dealt with as a preliminary one because, so it is said, it can be answered only after identifying among other things, the content of the applicants'
native title rights.
The second respondent, who in proceedings culminating in my orders of 26 May opposed question 1 being dealt with as a preliminary question, has altered its position. It now acknowledges the importance of an early resolution of the question whether the grant under Queensland parliamentary authority of pastoral leases extinguishes native title and agrees with the amendments, proposed by the first
and third respondents, to question 1. The second respondent, however, would prefer that the question be dealt with in the form proposed by the newly joined pastoral respondents and contained in paragraph 2 of exhibit 1. If the sub-questions in this particular question are answered favourably to the paetoralists, that will result in a declaration now that their leases are immune from any claim made in these proceedings by the Wik Peoples in respect of the lands the subject of those leases. But the second respondent's position is that either one question or the other should be dealt with on 17 October as a preliminary question.
The fourth respondent takes the same view as the second respondent. The 13th respondent's position is much the same. The fifth and eighth respondents have no intereat in the issues raised by amended chapter 17. The sixth respondent opposed the setting down of the newly joined respondents* questions which, as I have said, will, if answered favourably to them, result in declarations now as to the validity of
Court to attempt to make such a declaration before the facts their leaees and submitted that it would be premature for the
have been litigated and the exact content of any native or possessory title that the Wik Peoples may be able to establish in the pastoral lands has been identified. The ninth, loth, llth, 12th, 14th, 16th, 17th and 18th respondents, all holders of pamtoral leaees, as I have indicated, urge that the question of the imnunity of those leases from native title claims be resolved now. Affidavits read on behalf of these
respondents and on behalf of the first and third respondents emphasise the practical importance of an early resolution of this question, not only to the pastoraliet respondents, but more generally. The 13th and 15th respondents, two other pastoral lessees, have not yet been served.
The applicants' primary position, however, is one of opposition to the issue raised by amended chapter 17 of their pleading being dealt with as a preliminary issue. Their objection, insofar as it is based upon the reserved judgment of the Pull Court, can be accommodated, should I decide that the chapter 17 point be dealt with as a preliminary question, by giving all parties liberty to apply to seek the discharge of that ruling once the decision of the Pull Court is available.
Suhissions that this issue should not be decided as a preliminary one because the question whether native title subsists, notwithstanding the grant of the pastoral leases now
applicants have instituted in the National Native Title in question, will be dealt with in the proceedings the
Tribunal were effectively rejected by me when I decided to met
down question 1 for determination as a preliminary issue.
Submissions that the same sort of question is also before the Tribunal in different proceedings provide, in my view, no reason for not dealing with the chapter 17 point now. The Registrar of the Tribunal has refused to accept the native title claimants' claim in those other proceedings and the
President, while he has not yet determined the reference from the Registrar rejecting the claim, has indicated a preliminary view similar to the Regietrar's. But in any event, any determination by the President of the Tribunal in favour of this other claim will amount to no more than a determination that those other claimants have a prima facie claim to native title, notwithstanding the grant of pastoral leases over the lands in question. In contrast, a decision on the point in these proceedings may well, especially after the appellate consideration that is likely to follow on any decision I make, settle the legal position in this regard.
The applicants also submit that determination of all of the questions in paragraph 2 of exhibit 1, save that in paragraph 2(c) proposed by the pastoralist respondents, would require the identification of the exact content of such native title or poseessory title as the applicants can establish, and for that reason it is inappropriate to deal with it as a preliminary one. The alternative submission by the applicants
draft question to focus on whether such power as the is to propose an amendment to the first and third respondents'
Queensland Parliament hae to pass laws dealing with the leasing of lands for pastoral purpoees permits grants for pastoral purposes of leasee which are subject to a reservation to the Aboriginal inhabitants of Queensland of the rights or interests of those Aboriginal inhabitants, rather than whether legis lative power is limited to permitting grants of pastoral leases over the lande here in question only subject to a reservation in favour of the applicants themselves. It is, I think, unnecessary to take up this suggestion in view of the clear identification in chapter 2 of the amended statement of claim of the Wik Peoples and their predecessors in title as Aboriginal inhabitants of Queensland. Given that, the question now proposed to be dealt with as a preliminary one by the first and third respondents doe6 nothing more than merely amend question 1 to limit it to the question of the legislative power of the Queensland Parliament in relation to a governing the grant of lands for pastoral purposes, an issue already encompassed in question 1. There is no good reaaon why this amended question should not be set down for hearing as a preliminary one on 17 October.
It was submitted that recent research on behalf of the applicants suggest that more evidence to be relied upon by them in identifying what the applicants will contend is the factual matrix to which I should have regard in construing the varioum legislative and executive instruments referred to in
thought originally was the case when question 1 was set down the proposed question will need to be looked at than they
for early determination. Mr. Hunter, the solicitor for the applicants, and those assisting him, seem, however, to have this task well in hand. He also refers to his efforts in obtaining access to the complete tenure history of each of the pastoral leases, including current leases, that have ever been granted over lands within the areas the subject of the applicants' claims and he refers to the relevance of that material, which the applicants have not yet obtained, to the ultimate determination of the question whether native title has been extinguished in relation to any of the lands within the claim area. However, he acknowledges, correctly I think, that it is unlikely that this tenure material will materially affect the determination of question 1. He says: "It ie therefore not proposed to seek to delay the resolution of question 1 on that basis."

I will therefore direct that the questions proposed

by the first and third respondents, and contained in their

letter of 16 Auguet, 1994 to the applicante, be determined as
preliminary questions on 17 October 1994.

That leaves for resolution whether it in appropriate to go beyond the issue of legislative power, raised in thin question, and set down for early determination anv of the mattere raised in the pastoralist respondents' proposed questions.

On 26 Hay last I declined to set down questions 3 and 4 then proposed by the first and third reepondents for early determination. These questions sought decisions as to whether certain legielative acts and the grant of certain mining leases made pursuant to those legislative acts and the grant of a particular paetoral lease extinguished any native title the applicants may once have enjoyed over the relevant lands. The reason I took that course waa because I considered

that the question whether a Crown grant, including the grant of a mining or a pastoral lease, has extinguished native title that would otherwise exist, involve8 a close comparison of the rights conferred by the Crown grant on the lessee and the rights comprising the native title made out in the particular case before a determination could be made on whether the one conflicted with the other and, so, extinguished it either wholly or in part. For the same reason, I do not think it appropriate to deal with the question in paragraph 2(d) of exhibit 1, as presently framed, as a preliminary question.

However, if all the elements of the first and third respondents' question are answered favourably to the respondents, against the background of such a determination, it would I think be appropriate to deal with the questions raised in paragraphs 2(b) and (c) of exhibit l which raise only questions of construction of the relevant leases. The evidence is that the pastoralist respondents' leases are all in eseentially the sane form so it should be necessary to look

opposition to the chapter 17 issue being dealt with as a	at only one of the leases. Subject to their general
preliminary question, the applicants accept that the question in paragraph 2(c) is appropriate for early determination. The question in paragraph 2(b) is no different.
If the questions in paragraphs 2(d) and (e) were expressed to be dependent on answers to the questions in paragraph 2(b) and (c) favourable to the respondents, they

would themeelvee throw up queetione, the answers to which would not require any identification to be made of the content of the native title that the applicants may be able to establish. The questions in paragraph 2(d) and (e), so limited, would, if anewered favourably to the respondents, result in the resolution of the entire proceedings between the applicants and the pastoralist respondents, i.e., in a situation which is exactly that which juetifies the uee of the preliminary question procedure.

I therefore propose to set down for early determination the first and third respondents' questions, the questions in paragraph 2(b) and (c) of exhibit 1 and also the restricted version of the questions in paragraph 2(d) and (e) that I have referred to. It is, I think, unneceseary to deal with the question in paragraph 2 (a) of exhibit 1. It is only if the questions proposed by the first and third reepondents are answered favourably to the respondents that the questions in paragraph 2 of exhibit 1, that I think should be dealt with

do arise for determination and if the answers are favourable	as preliminary ones, will arise for consideration and, if they
to the reepondents, that will settle the iasue of the validity of those leases and of their immunity from native title claims.
I c e r t i f y that thim and the proceding 10 page8
U. a true copy of the reamon8 for judgwnt
heroin of the Ronour&le Wt. Juntice Dr-nd.
A#8ocLato:
Date:  2 Soptombor, 1994
Counsel for the applicanter  K.J. Criepin Q.C.
Solicitore for the applicants:	Ebsworth h Ebeworth

Couneel for the f iret and G.J. Gibeon Q.C.

third respondentm:

Solicitore for the firet and Crown Solicitor

third reepondente:

Couneel for the second reepondent:  D.J. McGill

Solicitors for the second respondent: Australian Government

Solicitor

Couneel for the fourth respondent:	H.B. Praeer Q.C. and
P.L. O'Shea
Solicitore for the fourth reepondent:	Blake Daweon Waldron
Solicitor8 for the fifth respondent:	Feez Ruthning
Couneel for the eixth respondent:	S. Greenwood Q.C.
Solicitor8 for the sixth respondent:	Hemming L Hart ae town agenta for Bottom8 Engliah

Solicitore for the eighth reepondent:	Stubbe Barbeler Grant as town agents for Parrellye
Couneel for the ninth, tenth,	D.J.S. Jackeon Q.C.

eleventh, twelfth, fourteenth,
eixteenth, seventeenth, eighteenth

reapondent:

Solicitore for the ninth, tenth, Corrs Chambere

eleventh, twelfth, fourteenth,	Weetgarth
sixteenth, eeventeenth, eighteenth reepondente:

JUDGES' CHAMBERS

FEDERAL COURT OF AUSTRALIA

LEVEL 8. COMMONWEALTH LAW COURTS

119 NORTH QUAY BRISBANE Q 4000

PO BOX 84. BRISBANE ROMA ST 4003

MEMORANDUM TO :  Sonia Cornale

THROUGH :	Director, Library and Information Services
FROM :	Dorothy White Drummond J's Secretary

SUBJECT :	The Wik Peo~les	v State of Oueensland
6 Ors.

DATE :  12 September, 1994

The judgment and disk in the above matter were forwarded to Principal Registry last week.

They were returned to the Brisbane Registry from the

New South Wales Registry this morning. Please advise how this

came about.

The judgment and disk are now enclosed.

pjjL:,j,tc,

DOROTHY WHITE