Wik Peoples v Queensland & Ors- Thayorre People v Queensland

[1996] HCATrans 415

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B8 of 1996

B e t w e e n -

THE WIK PEOPLES

Appellants

and

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Third Respondent

COMALCO ALUMINIUM LIMITED

Fourth Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fifth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Sixth Respondent

NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

PORMPURAAW ABORIGINAL COUNCIL

Eighth Respondent

EDDIE HOLROYD

Ninth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Tenth Respondents

MERLUNA CATTLE STATION PTY LTD

Eleventh Respondent

JOHN BOCK

Twelfth Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Thirteenth Respondent

REEFDEEN PTY LTD

Fourteenth Respondent

RICHARD JOHN and JOHN RICHARD PRICE

Fifteenth Respondents

RICHARD MATTHEW PRICE

Sixteenth Respondent

GEOFFREY JOHN GUEST and ROBERT JOHN FRASER

Seventeenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Eighteenth Respondents

THE THAYORRE PEOPLE

Nineteenth Respondents

Office of the Registry
  Brisbane   No B9 of 1996

B e t w e e n -

THE THAYORRE PEOPLE

Appellants

and

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Third Respondent

COMALCO ALUMINIUM LIMITED

Fourth Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fifth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Sixth Respondent

NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

PORMPURAAW ABORIGINAL COUNCIL

Eighth Respondent

EDDIE HOLROYD

Ninth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Tenth Respondents

MERLUNA CATTLE STATION PTY LTD

Eleventh Respondent

JOHN BOCK

Twelfth Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Thirteenth Respondent

REEFDEEN PTY LTD

Fourteenth Respondent

RICHARD JOHN and JOHN RICHARD PRICE

Fifteenth Respondents

RICHARD MATTHEW PRICE

Sixteenth Respondent

GEOFFREY JOHN GUEST and ROBERT JOHN FRASER

Seventeenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Eighteenth Respondents

THE WIK PEOPLES

Nineteenth Respondents

For Judgment

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 23 DECEMBER 1996, AT 12.04 PM

Copyright in the High Court of Australia

________________

GUMMOW J:   These appeals were from the Federal Court of Australia were heard in Canberra by all members of the Court. 

The Chief Justice would dismiss the appeals.  I publish his Honour’s reasons.

Justice Dawson would dismiss the appeals.  I publish his Honour’s reasons.

Justice Toohey would allow the appeals in part.  I publish his Honour’s reasons.

Justice Gaudron would allow the appeals in part.  I publish her Honour’s reasons.

Justice McHugh would dismiss the appeals.  I publish his Honour’s reasons.

I would allow the appeals in part.  I publish my reasons.

Justice Kirby also would allow the appeals in part.  I publish his Honour’s reasons.

The appeals concerned the answers given by the Federal Court to certain questions for separate decision.  This Court is unanimously of the opinion that the appeal fail with respect to the answers given to questions 4 and 5.  By majority, the appeals succeed with respect to certain answers given to questions 1B and 1C.  These deal with the effect of the grants of the Mitchellton and Holroyd Pastoral Leases. 

Before pronouncing the formal order of the Court, I should read the following concluding passage from the reasons for judgment of Justice Toohey, the senior member of the majority of the Court. 

“it is important that the significance of the answers proposed should be properly understood.  What now follows is said with the concurrence of Gaudron, Gummow and Kirby JJ who each answers the questions in similar terms.  The order the Court makes will therefore reflect those answers.

In these appeals the Court has been called upon to answer questions which, no doubt, it was hoped would resolve all important issues between the parties.  Having regard to the form of the questions framed for the purpose of the proceedings in the Federal Court, that has not proved possible.

To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees.  It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.

So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question.  Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established.  If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.  Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants.”

The order of the Court is:

1. Each appeal allowed in part.

1. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d) and Question 1C(b), (c) and (d). Affirm the answers given by Drummond J to Question 1C(a), Question 4 and Question 5.

1. Answer Questions 1B, 1C, 4 and 5 as follows:

Question 1B

"         If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease):

(a)[not pressed]

(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 'yes':

(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 New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?

(d)did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the pastoral lease?"

Answer

(b)      No.
           (c)      Does not arise.

(d)Strictly does not arise but is properly answered No.

Question 1C

"         If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral leases in respect of the Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No 2540 copies of which are attached hereto (Mitchellton Pastoral Leases):

(a)was either of the Mitchellton Pastoral Leases subject to a reservation in favour of the Thayorre People and their predecessors in title of any rights or interests which might comprise such Aboriginal title or possessory title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?

(b)did either of the Mitchellton Pastoral Leases confer rights to exclusive possession on the grantee?

If the answer to (a) is 'no' and the answer to (b) is 'yes':

(c)does the creation of the Mitchellton Pastoral Leases that had 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 Thayorre People and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?

(d)did the grant of either of the Mitchellton Pastoral Leases necessarily extinguish all incidents of Aboriginal title or possessory title of the Thayorre People in respect of the land demised under either of the Mitchellton Pastoral Leases?"

Answer

(a)      No.
           (b)      No.
           (c)      Does not arise.

(d)Strictly does not arise but is properly answered No.

Question 4

"         May any of the claims in paras 48A to 53, 54 to 58(a), 59 to 61, 61A to 64 and 65 to 68 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Comalco Aluminium Limited notwithstanding the enactment of the Comalco Act, the making of the Comalco Agreement, the publication in the Queensland Government Gazette of 22 March 1958 pursuant to s 5 of the Comalco Act of the proclamation that the agreement authorised by the Comalco Act was made on 16 December 1957 and the grant of Special Bauxite Mining Lease No 1?"

Answer

No.

Question 5

" May any of the claims in paras 112 to 116, 117 to 121, 122 to 124, 125 to 127, 128 to 132, and 141 to 143 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Aluminium Pechiney Holdings Pty Ltd notwithstanding the enactment of the Aurukun Associates Agreement Act 1975, the making of the Aurukun Associates Agreement, the publication in the Queensland Government Gazette of the proclamation of the making of the agreement pursuant to the Act and the grant of Special Bauxite Mining Lease No 9?"

Answer

No.

1. The respondents who opposed the orders sought in relation to Question 1B(b), (c) and (d) pay the costs of the proceedings in this Court of the Wik Peoples relating to that question.

1. The respondents who opposed the orders sought in relation to Question 1C(b), (c) and (d) pay the costs of the proceedings in this Court of the Thayorre People and the Wik Peoples relating to that question.  The Thayorre People pay the costs of the proceedings in this Court of the respondents relating to Question 1C(a).

1. The Wik Peoples pay the respondents' costs of the proceedings in this Court relating to Questions 4 and 5.

1. Remit the matters to the Federal Court with respect to the costs of the proceedings before Drummond J or otherwise in that Court.

Adjourn the Court sine die

AT 12.15PM THE MATTER WAS CONCLUDED