Wik Peoples v State of Qld & Ors- Thayorre People v State of Qld

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

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 JUNE 1996, AT 10.17 AM

(Continued from 12/6/96)

________________

BRENNAN CJ: Yes, Mr Solicitor for the Commonwealth?

MR GRIFFITH: If the Court pleases, may I clarify a point we made last yesterday with respect to the removal of trespasses referring to section 373 of the 1962 Land Act, section 240 of the 1910 Act and section 235 of the 1897 Act. Each provide for the licensee of land from the Crown to lay a complaint against trespasses, or for the lessee to lay a complaint against trespasses, so that at the transcript on page 182 in response to a question from your Honour Justice Gummow, I should have said “No” when I said “Yes”, if I may refer to those statutory provisions.

Your Honours, we have circulated and your Honours do have a short addendum to our written submissions. Your Honours, this is a note with respect to tenures which has attached to it the Res Judicata that your Honour the Chief Justice drew to my attention yesterday by Fry, and also the Campbell article 40 ALJ 35, and with respect to the note which we have made in written form, to save me taking the Court in detail through the points which we would make on the tenure issues, firstly it is confirmatory of the point made by Justice McHugh over the last two days that no common law freehold tenure existed in Australia except free and common socage and we then refer to the Tenures Abolition Act.

The particular point which we would like to make from this material ‑ and that is really taking the Court to paragraph 6 and following ‑ is that we submit that the constitutional power to make laws with respect to the letting of wastelands of the Crown is a power to regulate.

We say that when one looks at the history of tenure in Australia, it is implicit that the Land Acts only regulate the granting of leases. They do not, in themselves, contain the power to grant leases. That derives from the Crown’s radical title. Whilst we have not been able to add anything to the authorities referred to by the Solicitor-

General for Queensland as to the nature of radical title on the question of the origin of the term “radical”, we do refer to the fact that the Concise Oxford Dictionary definition Fifth Edition is, as one of the meanings of “radical” is:

Naturally inherent, essential, fundamental,

and another meaning:

Forming the basis, primary, (the radical idea or principles of a system).

So that one can see that it is not a radical thing to describe the Crown’s title as radical if one uses one or other of those ordinary dictionary senses. So it may be, Justice Kirby, that we do not have to look through Scottish Law Lords or whatever to find a definition which does convey the concept within the continued use of the term.

BRENNAN CJ: I am not sure that I understand precisely what you meant in terms of regulating. Are you suggesting that a grant of an interest in land by the Crown otherwise than in accordance with statutory authority might nonetheless be valid?

MR GRIFFITH: Your Honour, we would not suggest that because it would seem by the terms of the Act itself that that is the comprehensive legislative scheme for the exercise of what we put is the inherent power by reason of the fact being the possessor of the radical title. So that it comprehensively controls the issue of title.

BRENNAN CJ: I thought that it sounded in terms not only of manner of the exercise of the power but of the existence of the power. I am thinking of Cudgen Rutile [No 2] v Chalk.

MR GRIFFITH: Your Honour, we would say on analysis the power must always have been there inherently by nature of the sovereignty arising from the radical title itself.

BRENNAN CJ: But the distribution of the power was such that it could only be exercised in accordance with parliamentary authority once sections 30 and 40 of the Constitution Act were enacted.

MR GRIFFITH: That is probably so, your Honour, yes.

BRENNAN CJ: You accept that?

MR GRIFFITH: We accept that, yes, your Honour. One can say that the terms of, for example, the Queensland Act are comprehensive but we submit that is dealing with the regulation of this power which, absent the statute, would be a prerogative power capable of being exercised to the fullest extent. Your Honours, the other point which can be made from the Campbell article is that provisions with respect to the creation of interests in Crown land were designed to overcome what was seen as the difficulty that there were no amenable roles for the entry of Crown titles or titles deriving from the Crown. Although there had been no great seal, it was necessary to consider and it took some time, as Campbell illustrates, to work through the mechanisms which might be adopted in Australia to substitute for the process of enrolment, for example, enrolment at a court of record.

So that the processes of the statutory provisions dealing with the way in which title might be regarded as being the equivalent of enrolled, namely, we would say, for example, the provisions of section 6(2) of the Land Act 1962 - and we enlarge on this in paragraphs 9, 10, 11 and 12 of this summary - is that it enables the equivalent of the process of sealing and enrolment under the English tenure system. In other words, we suggest that the whole mechanism complements the process of applying the tenure system within Australia, adapting it to the circumstances of Australia, but we submit, not repudiating it.

We would submit to the Court that these various and perhaps particular tenures which have been created with respect to the operation of the alienation of Crown land in Australia, nonetheless fit within the skeletal structure of tenures. So that, in Australia, there has been acceptance of the fact that the tenure system operates. We submit that it would be a repudiation of this historical fact to postulate that the Crown may grant interest in land without having any interest in the land to found the grant. That is to suggest that now some tenures from the Crown may be sustained by the description of being purely supported by the statutory authority to grant them. We would submit that to adopt this process you would introduce a degree of uncertainty into all Crown grants authorised by statute which, as I pointed out yesterday, would be all Crown grants since 1842.

Dr Fry’s article, page 163, points out that in Queensland alone there are 70 different forms of tenure which could be granted by statute. We say that it is not possible now to pick and choose between some of these statutory tenures - they are all now statutory - and say to some they fit within the conventional doctrines of tenure and in others that they do not. We would point to your Honour the Chief Justice’s judgment in Mabo as supporting the generality of the proposition that the doctrine of tenures support all of them.

Your Honour, we should indicate that we have been unable to obtain a copy of Fry’s book Freehold and Leasehold Tenures in Queensland. Your Honour possibly has the only copy south of the Tweed, but your Honour, in the event that we are able to obtain a copy and it has some particular passages, may we have leave of the Court to ‑ ‑ ‑

BRENNAN CJ: Yes, and the book can be made available if you wish to see it, but I do not know that it will add very much to what is in the Res Judicata in terms of the principles ‑ ‑ ‑

MR GRIFFITH: Thank you, your Honour; it is just that it looked a big volume, as your Honour had it yesterday, and we were unable to obtain it. Your Honour seemed to have the only copy south of the Tweed, as I point out.

Your Honour Justice Kirby asked on Tuesday whether there had been any consideration of decisions of courts of other jurisdictions on the effect of native title on the grant of a lease. We are not able to assist with any discussion about leases and it does seem that Australia is likely to be unique in the significance of pastoral leases and its effect on native title. This is because Australia was unusual in not recognising native title at an early stage - it took us 200 years to do it and adapting to that - so that the circumstances which led to the development of the pastoral lease in Australia were unique. As we have indicated to your Honours, we do outline these historical circumstances in appendix 2 to our first volume of written submissions and it is clear enough from that summary that in Australia there was a combination of de facto occupation of most of rural Australia by pastoralists and also an adoption of the colonialization theories of Wakefield, which prevented large areas of land being alienated in freehold, and we have already ‑ ‑ ‑

KIRBY J: It is also clear enough from the historical material that it was accepted as concomitant with the pastoral leases that very large numbers of Aboriginal Australians would continue to roam about and exercise their rights, as we now know, on the pastoral lease granted.

MR GRIFFITH: Your Honours, this is where one gets into a difficult area.

KIRBY J: Well, they were not driven into the sea. I appreciate that some were put in reservations, others went to the outskirts of towns, others went to towns, others were killed.

MR GRIFFITH: Your Honour, we know from the circumstances of the cases brought to the Court by some of the interveners that in many States there was a process of reservation to enable continuation of such activities. In the case of Queensland, certainly, in the relevant leases here, that does not seem to be the case. Now, your Honour, we would not say that it is possible to make assumption, that it was contemplated that such foraging and access that was in existence at the time of a grant a lease necessarily was something contemplated is likely to continue. As I noted yesterday it does seem likely that the contemplation was that there would be reserves created, that occupants might move to somewhere else where there was, as yet, not alienated land.

Your Honour, at the risk, perhaps, of introducing what seems to be an inappropriate note - as it occurred, your Honour, I happened to be reading last night - perhaps I should have been more directly concerned with this case - but a biography of A.B. Piddington, who was, of course, appointed, but did not take office in this Court, The Last Radical Liberal, written by Morris Graham If I may read to the Court a short extract at page 105 to 106, which I say is indicating what might well be regarded as the common attitude of those involved in the processes of legislating, operating schemes for alienation and, indeed, one might say in Piddington, someone who might well have been involved in consideration of such issues of construction. What Graham says is:

His commitment to the White Australia policy was clear -

and, remember, he is called the last radical liberal -

defending it also as a matter of destiny. He declared that, “Nature herself held Australia during aeons of evolution for the race that now holds it by a Torrens title. To him, Australia had been terra nullius. Lacking literary and architectural achievement as obvious measures of a civilisation that might have attracted his interest, Aborigines simply did not exist for the urbane Piddington. They never impinged on his consciousness, as a people or as a “problem”. The continent was kept without the plants and animals needed to support large populations and was offered to the first race to bring “to its virgin soil the stock, the grains, the fruits and, above all, the arts of civilised Europe”.

So that, your Honour, I mention that as a passage which does remind the Court that there were attitudes now, of course, entirely derogated from ‑ ‑ ‑

McHUGH J: But I mean, that is what your argument really comes down to in many respects, that one has to say, “Well, the legislature early this century and last year saw the Aboriginal people as no different from kangaroos. They were there and that was it but they had no rights and you can do what you want to do with them.

MR GRIFFITH: Your Honour, my argument does not come down to that, but dealing with the issue: should there be an assumption that these statutory form of leases, with all the indicia of leases, should not be treated as carrying the natural concomitant of exclusive possession? We would submit, the only reason that question is asked is because of the possibility that there may have been Aboriginal occupants of part of those lands exercising their traditional native title rights.

Were they not there, the question would not even be asked by the Court, we would submit, in construing these statutory provisions in the characterisation issue of, “Is this a lease properly so characterised and the necessary consequence that that would take with it, subject to any appropriate reservations, the right of exclusive possession?”

McHUGH J: But if I had been sitting in this Court in 1910, I think I would have interpreted the legislation as not giving exclusive possession having regard to distance, having regard to the existence of Aboriginal people on it. The strongest argument you have got going for you, it seems to me, is the weight of authority and there is a question of what Parliament meant in 1910 and again in 1962 when it used these terms.

MR GRIFFITH: Well, your Honour, I would suggest your Honour might have been in a minority of one so sitting if the two other judges in 1903 say of this Court. That is something we will not know an absolute answer to but we do know persons who are described as progressive liberals had those views and they certainly - your Honour, one can say from historical reasons, one can see the legislative mandate did not expressly embrace these factors which we now take as self-evident.

McHUGH J: I appreciate that, what I meant was to say, sitting in 1910, one is there with the intellectual baggage of the last decade of the 20th century.

MR GRIFFITH: Your Honour, we know it is historical fact that Aborigines were turned off these leases.

KIRBY J: Is the difficulty not that the Court has now said that the native title rights existed, not exist, not exist as from 1992, but existed. Therefore, what we have to do is to go back to this legislation and armed with that discovery and declaration to fit the pre‑existing title rights or rights of native people into the fabric of the law as it was then made, not what the legislators had subjectively in their mind, but what construct will make the law work in a way consistent with the declaration in Mabo [No 2].

MR GRIFFITH: Your Honour has identified the issue and hence we refer to the Chief Justice’s statement yesterday, “One should construe statutes in the circumstances which exist at the time of enactment”. If the Court approaches the issue, it is necessary to make, as it were, a retrofit of these principles into this Act. In effect, your Honour, we would submit that the Court is re‑engineering the plain terms of the statute as they would have been understood, as they read in their plain terms, up to such time as this mature consideration after the 1992 decision of this Court. Now, it is really a matter for the decision of this Court as to whether in that context that is the appropriate mechanism of statutory interpretation to, in effect, carve out an exception to what otherwise would have been, we would submit, up to 1982, the plain and obvious operation of the terms of these laws.

So your Honour identifies exactly the point. Our submission on that is to say that, desirable as that may be, that is a matter for legislative application, not for the Court to seek to apply a contemporary construction to these basic legislative structures which have controlled land tenure in Australia for the last 200 years. Your Honour identifies the point.

KIRBY J: Justice Dawson raised this yesterday and for my own part I think this is really quite critical, as to whether we do have to try, with the knowledge of the declaration of Mabo, to fit this principle into the pre‑existing law or whether we just say they were white Australians, they had the white Australian attitude, and that is what they intended and that is what the legislation means.

MR GRIFFITH: Your Honour, our submission is that it is not possible to do that, that this becomes a matter of the anxious working through of the principles in Mabo which does involve the people of Australia, the legislatures, the Parliament. One can pick up these aspects from the preamble of the Native Title Act itself. Of course, that is a continuous process and twice, if not thrice, we have made submissions to the Court that as part of that process it is necessary to have further direction from this Court as to the legal principles applying with respect to pastoral leases. In a situation of uncertainty, this process is one difficult to advance.

DAWSON J: But nowhere in either of the Mabo Cases is any doubt thrown upon the principle of contemporanea expositio.

MR GRIFFITH: Precisely, your Honour. So that is to identify very starkly the issue. Our submission to the Court is that it is part of the process of working through in futuro but we do need the advantage of further exposition from the Court to find out what is the underlying present legal position. We say that it is not possible for the Court to work through to the appropriate results within the historical, social and also legal framework in the history of 200 years of land tenure to itself produce a result which reflects the appropriate recognition of native title rights vindicated by Mabo [No 2]. That is the charter, but forward progress is very much a matter where not merely the Court may articulate the consequences; it is something also for the community and for the Parliaments.

BRENNAN CJ: But this is no question of partnership between the branches of government, Mr Solicitor. This is a simple question of law and the question of law has already been identified and that is whether or not native title which undoubtedly existed has been extinguished by the grant of particular leases. The answer to that question depends as a matter of law upon the operation of the leases and the understanding of the test of inconsistency.

MR GRIFFITH: That is entirely accepted, your Honour.

BRENNAN CJ: For my part I must say I think that our discussion has sometimes ranged a little more broadly than just the consideration of the relevant legal principles which alone are the questions for this Court.

MR GRIFFITH: I am sorry, your Honour, it seemed to be teased out by Justice Kirby’s raising of the issue.

BRENNAN CJ: I am sorry.

MR GRIFFITH: I was attempting to deal with the points that he made. I did not intend to trespass beyond those aspects. My comments were directed entirely to dealing with the issue that your Honour identified.

BRENNAN CJ: Yes.

MR GRIFFITH: Your Honours, may I refer briefly to the issue which we cover in paragraphs 3.29 to 3.33 with the reference of leases being for pastoral purposes. I will not recapitulate what are in those paragraphs of our primary submissions, but we do submit that it is common for leases to be expressed for all manner of purposes: for example, operating a restaurant, cutting timber, dredging and so on. The fact that the pastoral leases are expressed to be for pastoral purposes is not exceptional in this regard. They were simply intended to safeguard the Crown’s interest in generating income from the sale of land. May I refer the Court to our submissions in paragraph 3.35 where we point out the fact that even grants of fee simple made to statutory powers could be subject to reservations and conditions.

BRENNAN CJ: Mr Solicitor, in the light of the assistance that you have been asked for in the course of your submissions, the Court will extend your time by a quarter of an hour to 11 o’clock.

MR GRIFFITH: Thank you, your Honour. I thought I had another 4 minutes and I was not intending to range much over that, but thank you for indicating that.

BRENNAN CJ: The Court will be indebted to you accordingly.

MR GRIFFITH: Yes, thank you, your Honour. Your Honours, on the issue of reservations, may I refer the Court to the detail of our submissions on that, in particular, 1.6 and 3.34 to 3.43 of our principal submissions and 1.6 and 1.7 in our supplementary submissions and, in particular, may I refer the Court briefly in our principal submissions to the judgment of Justice Mason in Goldsworthy which is replicated on page 28 of our principal and the first volume of submissions where his Honour made the point, which we say undoubtedly is correct, that one may have extensive reservations, but that does not itself result in characterisation of bringing matters inconsistent with the existence of a right of exclusive possession. We say his Honour’s principles there in Goldsworthy are ones which are relevant for consideration of the points made on the issue of reservations. We say that extensive reservations are not, in any manner, inconsistent with exclusive possession.

So, your Honours, that really brings me to the conclusion of our submissions, which are that we submit that our written submissions have dealt with exhaustively the arguments which are raised on this point of construction which your Honour the Chief Justice reminded me as being the point for decision for the Court, but we do submit that these are matters where the Court is, in effect, exercising the function of working through the application of the principles which were exposed in the Mabo decision. The Western Australian Case, of course, supported the basic decision and we do submit that, in essence, when one looks at the various arguments which, in a way, seem to add up to one thing, namely, that the Court, being taken to the particular issues with respect to some 42 per cent of the area of Australia, the difficulty which is now exposed in taking what might be regarded as the hard view, the tough view, that the legal operation of these documents which, on all indicia, operate as a lease, as a demise, which would carry as a consequence the aspect of entitlement to personal possession produces what, admittedly, the Commonwealth will completely admit is an unsatisfactory result so far as the present position of Aboriginals, of those claiming native title, may be concerned.

But accepting that, in our submission, the applicants are seeking, and the interveners on their behalf who support them, to invite the Court to regard Mabo, in effect, as a first shot in restating the appropriate common law principles. In effect, the Court is being asked to recommit them. Instead of approaching from the point of view it is a matter of legal characterisation, the Court is being invited to say it is a parcel by parcel, fact by fact issue of consideration. That it is not a matter of legal operation, it is a matter of factual operation. It is not appropriate for me to summarise the various ways in which it is sought, in effect, to erode what we submit is the consistent application of the principles of Mabo [No 2] in respect of the issue of pastoral leases within the legislative structure under which they operated.

So we do submit that the appellants, in putting these arguments, are acting on the basis that the slate is clean, but it is not. Mabo is writ large on it. The Court has spoken in a considered, responsible and, of course, passionate voice on these issues. It has established the relevant principles. Notwithstanding his strong dissent in Mabo, Justice Dawson accepted it in Western Australia v the Commonwealth, and we say the people of Australia have accepted them. They have responded consciously and responsibly, and it is submitted that the Court now considered these matters in the context of the principles and without, of course, reminding the Court of the various passages to which the Court had been taken, our submission is that it is one thing that Mabo makes clear and, that is, that the vindication in Mabo [No 2] of the appropriate principles of common law make it plain that is within the context of the application of the system which might be encapsulated in the passage I referred to of the system of tenure as operating in Australia with respect to the principles of property law.

It is a skeletal principle which is not fractured by Mabo [No 2] and our submission is that when looked at in the essence the matters which are put by the applicants for the Court are, in essence, an invitation for the Court to recommit,s to repudiate the principles of Mabo [No 2] based, as it is, on the acceptance of ‑ ‑ ‑

McHUGH J: I do not see that at all, Mr Solicitor. It seems to me that the real question is what did the legislature intend to do with the 1962 Act and the 1910 Act. Did they intend to give right of exclusive possession? You can point to authority in your favour. You can point to the use of words like “lease”, “interest in land”, “rent”, “the right to mortgage”, or, having regard to the size of many pastoral leases, and having regard to the effect that it would have on people generally, should they be regarded, in effect, as some form of exclusive right to run cattle on them but not a right to exclude other people?

MR GRIFFITH: Your Honour does go to the issue of pastoral leases. What we submit is, were there no issue of native title, the question which your Honour identifies would be one that would be even necessary to ask; that one would say the legislation makes it quite clear that there is an intention to give exclusive ‑ ‑ ‑

McHUGH J: But there is not a word in there about “exclusive possession”. You have got to get it out of the word “lease”. You have got to get it out of “rent”. You have got to get it out of “interest in land”. As Justice Windeyer said in Radaich, the use of the label “lease” is not conclusive.

MR GRIFFITH: Your Honour, of course it is not conclusive. That is why we have exhaustively listed in our submissions in three layers of detail in our appendix, the fact that everything is there all one way. It is not the term lease. It is not just the heading “Pastoral tenures”; it is not the provisions of section 6(1) and 6(2). It is the entirety of it, your Honour. We submit that on any analysis of the use within the ambit of the law with respect to leases it all points one way. It is not a case of calling a lease a licence or a licence a lease. If one has a lease for a picnic race meeting at Birdsville that is called a lease, it might be difficult to regard it as a lease if it is only for one afternoon. It would probably be characterised as a licence. Your Honour, in the context of alienation for 20, 30 years on a renewable basis, with people being able to treat the property completely as their own, subject to rights of those that come and cut sleepers and the right, we say the exceptions which are to be there are spelt out exhaustively.

We know that the Court has coming towards it the issue of what happens when those exceptions include the right of those exercising native title rights to continue to exercise traditional rights - whether they are called native title, or not. In the absence of express reservation, we can find out from the history which the Court has before it, why there is an absence of express reservation. In our submission, one cannot, merely from the fact that it is a large area - which I understand is your Honour’s first substantial point on this - and secondly, that there may be a possibility of continuous occupation of part of these areas of those exercising traditional rights. In our exception, it is just not possible to construe the entirety within its historical background, other than being influenced completely by having regard to the appropriate vindication now of those rights of native title which have been recognised in Mabo. Having said that, your Honours ‑ ‑ ‑

McHUGH J: At some stage, could you give me, in a few sentences, what you contend is the correct theory of statutory interpretation to deal with this particular point.

MR GRIFFITH: Your Honour, that is a difficult question, because I thought I had finished, so I was not intending to add any more few sentences, but we do refer to the statement of his Honour the Chief Justice we gave yesterday as indicating one should look at these, not wise as we are with the appropriate recognition of native title rights after Mabo, but putting ourselves in the situation within the historical context and accepting completely the analysis of the Chief Justice in Mabo with respect to the application of doctrine of tenures and the principles of land law. We submit, your Honour, that one must accept on this crunch point that your Honour does put to me, the fact that it is plain, whether it is fair and appropriate or not now judging it, that this was the legal effect of what was done and that, in effect, it would be necessary to rewrite the plain terms to provide an exclusion which is regarded as appropriate justice and recognition for those who we know at the time and recognise had native title rights.

KIRBY J: Is that not the exploded subjective theory of statutory interpretation? Is that not brought on by the constant use of the word “intention” of Parliament as distinct from looking to what the words say and what they mean, in the context that we now know that there is native title and was native title at the time they were enacted?

MR GRIFFITH: Your Honour, I accept that. What we would say is in the context nonetheless of knowing that there is native title; it is quite clear, we would say beyond contrary argument, the plain words of the statute have this effect to create a lease with all its attending consequences, including the essentials of the lease, the right to exclusive possession, subject only to such statutory exceptions and reservations in respect of the Crown lease, as are expressed in the relevant statutes and laws which apply, but we would say, your Honour, having said that, that meaning being plain, it is also a meaning

completely supported by the historical matrix of facts in which those laws were passed and which they operated up to, one might say, 1982. So that, your Honour, we are not submitting at all there should be a subjective approach; we would submit the opposite. There should be a subjective construction and, in effect, the subjective one would be one arising from the recognised, in 1980, 1992, of the right to native title. But, your Honours, I am afraid I am repeating myself and at that stage if I could decline the remainder of the 15 minutes your Honour offered me and those are the submissions of the Commonwealth.

BRENNAN CJ: Thank you, Mr Solicitor. Yes, Mr Fraser.

MR FRASER: Thank you, your Honour. May it please the Court, the fourth respondent has attempted to put its submissions comprehensively in writing and the index to the fourth respondent’s written submissions, so far as they relate to pastoral leases, is in effect a summary of the contentions. The only point in relation to pastoral leases which I wish to take up is that which appears at the bottom of page 11 and at the top of page 12, which as it happens relates to the last topic which was raised, particularly by your Honour Justice McHugh, as to the correct method of interpretation, and it also as it happens provides some further authority for the proposition that there were Crown leases for a long time before a statutory regime in Australia.

Your Honours, I respectfully submit that the passage from the judgment of your Honour Justice Kirby in that case does provide the appropriate theory of statutory interpretation in the particular case and I would make the submission, of course, that if one now looks at the general law it includes the proposition that native title is extinguished by an inconsistent grant. The second point that I wish to make about it is ‑ ‑ ‑

KIRBY J: I was not there dealing with pastoral dealing, I think; I was dealing, with respect, the problem of the Western Land Act leases, but it may be that the position is analogous.

MR FRASER: Yes, your Honour, I accept that. The second point I wish to make about it is again in relation to a comment made by your Honour Justice McHugh comparing as it were this kind of case with the cases considered in Radaich v Smith. In my submission, this is a different sort of case. The cases of which Radaich v Smith is a prime example, are cases where the parties to a private dealing in fact set out all of the incidents of the particular arrangement and then apply a label to it, but, in my respectful submission, the scheme of the statutes here is quite different. The first part of each of the 1910 Act and the 1962 Act provides for a demise for a term and vests the interest. The form of the demise, which your Honours have already seen - it is not necessary to go to it - also provides for a demise for a term and provides that it is subject to such exceptions, restrictions, proviso and conditions that are set out in the Acts.

So that, in my respectful submission, the relevant Land Acts do not set out in detail the relevant incidents and then provide a label. They first provide for a demise. They then appropriately characterise the recipient of the demise as a lessee and they then set out particular provisions, conditions, restrictions and so on which, as it happens, are largely consistent with the incidents of a common law lease, but not universally consistent. So, in my submission, that line of cases, although helpful, is not directly on point. That is all I wish to say about pastoral leases, may it please the Court, subject to any further questions by the Court on my submissions in that respect.

If I could turn then to the question which most directly concerns my client which is that dealt with in part two of our submissions starting at page 40, or the text starting at page 41, and again, in view of the way the argument has proceeded, it is only necessary for me to elaborate on a few matters. Can I mention first some housekeeping matters? The first is that in paragraph 111 of our submissions, we point out that the question, that is question 4 with which my client is concerned, proceeds on the assumption that one or more of the Comalco Act, the making of the Comalco Agreement or the granting of the particular lease, extinguished the appellant’s native title.

We have not given references for that particular contention. That appears from the statement of claim and particularly from paragraphs 48A and 56A which are at volume 1, page 163 and 165 respectively. So that no question at all arises - I was not going to ask the Court to go to those now - in this case as to the effect of the Act, the Agreement or the mining lease. The parties have proceeded at all times on the assumption that one or other of those things would extinguish native title.

The second preliminary matter relates to the question of what relief is sought and my learned friend Mr Sofronoff did mention that to the Court. Can I just mention that one aspect of the relief which he omitted to mention was that which is set out in paragraph 111(c) of the fourth respondent’s submissions here on page 41, which is that there is a claim for an injunction restraining the fourth respondent from conducting its future mining operations. If I could then deal with the substantive points and again, I will do so briefly.

Firstly, if we could refer to paragraph 118 of our submissions, this relates to what is the primary contention of the appellants that they can maintain their claims of breach of fiduciary duty and the like, despite the legislative force of the Comalco Agreement and as we point out there, their argument is that statutory effect was given only for a specific limited purpose. We deal with that contention in paragraph 118 and following and I will not repeat that, but can I just mention one other point which is this: that had Parliament intended to give statutory effect to the Comalco Agreement for that particular purpose, it could quite easily have said so.

It could have said that the State was empowered to give effect to the terms of the Agreement. If I can ask your Honours to turn to volume 16 of the record, that is the joint appeal book in which the Act, the Agreement and the lease appears starting at page 2702, your Honours would see in section 2 ‑ your Honours have already been taken to it - that the executive was authorised to make the agreement which was annexed to the schedule.

KIRBY J: Is the second reading speech anywhere in the record or not? Does it throw any light on the issues in contention?

MR FRASER: No, your Honour. It does discuss the question of the effect on the Aboriginals, but it does not throw any particular light on the construction of the Act and I do not think that has ever been submitted before. The point I make, your Honours, is it is possibly arguable that section 2 would, in any event, achieve that limited purpose because there would seem no point in authorising the Premier to sign an agreement which provides for grants of leases if they could not lawfully be done. But it does not achieve that it could have been done simply by saying that the Comalco Agreement could be given effect to. So, we do not deny, of course, that the point identified by Mr Justice Dunn, namely, that it was necessary to override the provisions of the Land Acts and the Mining Act and so on, is one of the purposes of the Act, but, no doubt, there were other purposes and they are reflected in the words used.

The second substantive point that I wish to turn to is that relating to the primary contention of the appellant, which was made in oral argument, and that was to the effect that the Comalco Agreement was void because it was made in breach of the requirements of procedural fairness. May I submit firstly that the proposition that procedural fairness should have been afforded on the basis that there existed rights of property, the existence of which was not then recognised by the law and for which, in fact, there were no criteria of recognition is one which, in my respectful submission, has somewhat of an air of unreality about it here, but it is sufficient for the fourth respondent really to take its stand on a more conventional basis, that one simply construes the whole of the statute to discover what relevant effect should be given to it.

In my respectful submission, the approach of my learned friend, Mr Sofronoff, for the appellant, of looking at section 2 itself first then importing the requirements of procedural fairness and then saying the agreement was void and then saying that section 3 did not validate it is not a correct approach to construction. One needs to look at the statute as a whole first. Can I just make a couple of points that have not yet been made about these provisions?

KIRBY J: If the doctrines advanced to the Court were adopted it would obviously have implications for many other statutes and would introduce eventually a very risky element of uncertainty in the effect of statutes because it would be difficult in any statute to consult every group that was affected by a statute and then you would have people coming along to Court saying, “Well, we weren’t consulted. We were denied procedural fairness. The statute and what was done to the statute does not have effect.” It would be a rather new idea and introduce a great element of uncertainty in our laws.

MR FRASER: Yes, your Honour, and, perhaps, particularly in this field because if the doctrine applied with the specific provisions of this statute a fortiori would apply to all grants of land, States and fee simple under the general provisions of the Land Acts, but I really take my stand on the more specific provisions of this statute. Your Honours, the provisions I wanted to draw the Court’s attention to are that not only was the executive authorised to make it, not only does the executed agreement have the force of law, but that there was provision in section 3, second paragraph, for the Governor in Council to make a proclamation notifying the date of the making of the agreement and there is provision in section 5(iii) over the page for the proclamation to be published in the gazette, the publication to be conclusive evidence of the matters contained in it, which included the making of the agreement, and there is provision for the proclamation to be laid before the legislative assembly which might then set it aside.

The proclamation itself is at - I should say also that the agreement itself, which was intended to be given legislative effect provided - it starts at page 2704 in the recital that the State was satisfied, that it was in the interests of the State for the bauxite deposits to be developed and that it was desirable for the company to be granted the rights, titles, and privileges mentioned and then the proclamation itself is at page 2797, and it is, as I say, given conclusive force, and it provided that the agreement was, in fact, made on a particular date. I might also mention - that is 2797, top of the left

column, it appears it was the Premier and no impostor who executed the agreement and there was notification that the agreement authorised by the Act was made on a particular date. While I am dealing with that, I should just mention in passing that there have been quite a number of variations to the agreement in accordance with the agreed procedure. Those variations commence at page 2835 and they, themselves, of course, were subject to the scrutiny of Parliament in terms of the statute. They, themselves, recite the fact that the agreement has been made and contain provisions which operate upon the fact of the agreement having been made.

In my respectful submission, there is simply no room on these facts and this statute for the proposition that the scheduled agreement was not upon execution by the Premier given statutory force by section 3 and that that cannot be affected in any way by a doctrine of procedural fairness, assuming that it would in any event have any application to a document which is intended to have legislative effect. Those are my submissions, may it please the Court.

BRENNAN CJ: Thank you, Mr Fraser. Mr Thompson.

MR THOMPSON: May it please the Court, my submissions are concerned only with question 5. I do not propose to go over what is already in the written submissions, but I do wish to add one further submission to what appears in my written submissions. Question 5 concerns the Arukun Associates Agreement Act of 1975 which appears in volume 17 of the record at page 2923. That Act is in materially similar terms to the Comalco Act as regards sections 2 and 3. Pechiney adopts the submissions of Comalco in relation to those matters and also adopts the submissions of the Solicitor‑General for the State of Queensland in relation to questions 4 and 5.

Paragraph 6 of my submissions deals with the submission made by my learned friend, Mr Sofronoff, that section 2 of the Act did confer a discretion on the Premier in making the agreement. That submission turns on the proper meaning of the word “authorised” in section 2. My principal submission is contained in paragraph 6 and that is that the authorisation in section 2 was circumscribed by the context and circumstances, including the object intended to be served by the Act, its scope and subject matter. That submission is developed in paragraphs 6.1 to 6.4 of the submission.

The additional matter which I wish to deal with concerns a secondary argument if the Court is against the fifth respondent in relation to its primary submission on the word “authorised”. If section 2 is not a mandatory direction to the Premier to make the agreement, in my

submission, the Premier was nonetheless acting legislatively and not administratively in making that agreement in the sense that he was authorised by the Act as a delegate of the Parliament within the control of the Parliament.

I have given to the Court and to my learned friend, Mr Sofronoff, reference to the analysis of Justice Gummow in a decision of Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, particularly at the passage commencing at page 634, line 25 through to page 636, line 10. In my submission, the Premier in making the agreement was acting legislatively in the sense referred to by Justice Gummow in that case in that the making of the agreement had the result of changing the content of the law.

His Honour in that case referred to the test which appears in the judgment of the Chief Justice Mr Justice Latham in Commonwealth v Grunseit (1943) 67 CLR 58 at 82. If it please the Court, the rest of my submissions are contained within the written submission. Can I point out that the principal difference between the Aurukun Associations Agreement and the Comalco Agreement is that there is included as a schedule to the Aurukun Associations Agreement a further agreement called the Access Agreement which is the subject of a specific reference in the written submissions of my learned friend Mr Sofronoff but which were not further expanded upon orally.

That submission is dealt with in paragraph 8 and following of the written submissions, and unless the Court wishes me to say something further about that, I do not propose to deal with it further. Those are my submissions, may it please the Court.

BRENNAN CJ: Thank you, Mr Thompson. Mr Jackson.

MR JACKSON: Your Honours, in general, the respondents for whom we appear adopt the submissions which were made by the State of Queensland in respect of questions 1B and 1C. The principal submission we want to make today is that the question of extinguishment in this case can, and we submit should, be resolved by the application of the principles as to extinguishment which were established in Mabo [No 2] and Western Australia v the Commonwealth, but before we pass to that submission, we wanted to make a couple of brief points about things which were said in argument yesterday.

The first of them concerns some observations which have been made as to the effect of a Crown lease of a short duration, say, a week or a day. If the principle of extinguishment is truly, as we submit it is, that a grant of an inconsistent estate and a Crown ‑ ‑ ‑

KIRBY J: Did Justice Hill in the Waanyi Case in the Full Federal Court not say that, in his view, a short lease might not extinguish, or he left that open, I think? It is only of interest to know how you distinguish that view from the one that you are advancing.

MR JACKSON: Could I come to that in a moment, your Honour? The submission which I was making is that a grant of an inconsistent estate and a Crown lease with a right of exclusive possession is, in our submission, an inconsistent estate extinguishes native title. There are two ways in which the short duration lease example was invoked by those opposite. One was, if the grant were of a very short duration, and the other was, if the lease were determined after a very short time by forfeiture or surrender - and we do rely on what was said by Mr Keane yesterday about those things - but we wanted to say two additional things.

The first is that, as a matter of practical reality and of law, a pastoral lease was granted for a maximum term of 30 years under the Land Act of 1910 or the Land Act of 1962, at least until 1986 when under the 1962 Act, the maximum term was extended to 50 years. The example of the short‑term Crown lease for a day or a week is not, in reality, a pastoral lease and is essentially a theoretical example in the present case. For example, under the regulations under the 1910 Land Act, we know there were two forms of pastoral lease provided for. One was for 10 years and one was for longer.

That brings us to the second thing I wanted to say about the point, your Honours. Simply because the example is theoretical or unlikely, it does not mean, we accept, that it must be necessarily rejected as an analytical tool.

The point we want to make is that although it is a matter of low probability, an estate of fee simple is also determinable, for example, at common law, by the doctrine of escheat. Again, although it is not likely, it is possible for that to occur not long after the grant of the estate in fee simple by the death of the holder of the fee without heirs. We point to that perhaps unlikely example, though, as indicating that to test the application of the principle of extinguishment by inconsistent grant to leasehold estates by referring to their possibly short duration does not resolve much as a matter of principle.

The conclusion is accepted by all here, your Honours, except perhaps the Thayorre People, that the grant of a freehold estate extinguishes native title. Yet it too can be determined after a short time. As Mr Keane made the point yesterday, the same can be said of the circumstances that some leasehold estates are of a large area. The same could be true of freehold grants. The second submission we wish to make is as to the application ‑ ‑ ‑

BRENNAN CJ: Is that right? Was there a provision for freeholding in the Land Acts?

MR JACKSON: Section 6, we think, your Honours, yes, provides for a grant in fee simple in each of those Acts.

BRENNAN CJ: Yes. In relation to areas which were designated for pastoral purposes under the Land Acts, was it possible to convert the pastoral lease to freehold through the process of selection?

MR JACKSON: I do not think I can answer that question briefly off the top of my head. There are several estates of the statutory kind granted by the Act under which there were conversions of leasehold estate into freehold, and grazing homestead leases is one that comes to mind.

BRENNAN CJ: Is that a variety of pastoral lease?

MR JACKSON: The way in which it is expressed in the statute and in the instrument of lease, we would submit, yes, until the expiration of the - or the satisfaction of the conditions, more accurately - which are provided for in the instrument.

TOOHEY J: Does that go hand in hand with the pastoral lease or is it a form of tenure that is granted independently of a pastoral lease, Mr Jackson?

MR JACKSON: I am not sure whether I can answer the question helpfully, your Honour, in the sense of whether it goes hand in hand.

BRENNAN CJ: From recollection, it has got to be within an area that is open for selection, has it not?

MR JACKSON: Yes.

BRENNAN CJ: So, pastoral leases within an area open for selection would follow the freeholding procedure?

MR JACKSON: I am not entirely sure, your Honour.

BRENNAN CJ: Neither am I. Perhaps it might be of assistance if you were to give us a note about that at some convenient time, Mr Jackson.

MR JACKSON: Yes, your Honour. The second submission we wish to make was as to the application of the doctrine of estates to the interests granted under the Land Acts. As we apprehend it, the precise question for your Honours is whether a pastoral lease, which is a demise under section 6 of either Act, confers a right to possession meaning exclusive possession, which was an incident of a leasehold estate at common law. In testing that question under the Act it becomes relevant to look at the extent of the application of the doctrine of estates to interests granted pursuant to the Act, particularly leasehold estates.

We wanted to make a couple of additional observations to that which was said by Mr Keane yesterday. Although our primary submission is the same as his - namely that section 6 says that the grant is effectual to convey the estate - that estate being the one connoted by the expression, “demise”, which is used in section 6. The first thing we wanted to mention is that just as the Land Acts do not expressly say that an interest granted by way of demise under section 6 carries a right of exclusive possession, they do not refer to the doctrine of estates or deal with its application. In both cases, we say, they assume it. To give a simple example which we have already ‑ ‑ ‑

GUMMOW J: Do they also assume a covenant for quiet enjoyment, Mr Jackson?

MR JACKSON: As I apprehend it, yes, your Honour.

TOOHEY J: One would have to be careful about approaching it on the footing that the document or the grant is of a lease and then as it were attributing a whole range of characteristics, rather than perhaps looking at it the other way around, identifying the characteristics first and then reaching some conclusion as to whether it is truly a lease in the sense of conferring exclusive possession upon the lessee.

MR JACKSON: I think I will come to that point your Honour in the next submission. Could I do it then, and that will keep my thread. To give a simple example, which we have already mentioned, nothing in the Land Acts refers to escheat which, we submit, was one of the continuing incidents of tenurial holding at common law, and escheat applied in Queensland to land alienated under section 6 until it was abolished by the Property Law Act in 1974. After that Act land passes to the Crown by way of bona vacantia instead of escheat in Queensland. Our submission is that the application of the doctrine of estates is assumed by the Land Acts ‑ ‑ ‑

GUMMOW J: But did the doctrine of escheat apply to leases?

MR JACKSON: I do not know whether there is a decision which says that in Queensland, your Honour. I would have though probably not; I though they probably would have been dealt with by way of bona vacantia. If I could go back to where I was: our submission is that the application of the doctrine of estates is assumed by the Land Acts and that in particular the application of the estates of freehold and leasehold invoked by the language of grant used in section 6 “of an estate in fee simple or demise” is assumed. The true inquiry, we submit, and this comes back to what your Honour Justice Toohey said to me, is to what extent does the statute modify the incidents of those assumed estates? In the case of a pastoral lease, we submit there is nothing in the language of the Land Acts which would relevantly modify the usual incident of a leasehold estate, being a right to possession meaning exclusive possession, and if we needed to we would say that was a backbone principle.

The second thing we wanted to say about this question was about a point made by Mr Justice Gummow yesterday in looking at the words of the statute. Your Honour asked Mr Keane “Where do the statutes say there is a right of exclusive possession in respect of pastoral lease?”, and we have to answer, as we think he did, that they do not in express terms say a pastoral lease confers a right of exclusive possession. Can we add however, your Honours, that the statutes do not expressly confer any right to possession in respect of any of the interests granted under the authority of section 6. They no more say that the statutory interest of a grant in fee simple carries the right to possession than they say that in respect of the statutory interest of a grant by way of demise, and we would submit no less either.

The third submission which we wanted to make is as to our written submissions and the existing authorities, including the authorities in this Court mentioned by Mr Keane yesterday, which deal with the nature and incidence of a Crown lease granted under section 6 of the Land Acts. The technique which we sought to employ in our written submissions was to identify the critical provisions in section 4, identify the principles of construction which your Honour Mr Justice McHugh asked about this morning, in section 5, and to ascertain the plain meaning in accordance with those principles, having regard to some of the well-known cases in section 6. We want to say that we recognise that the State of Queensland has produced a more comprehensive exercise of a similar kind referring to a number of additional cases decided in the Supreme Court of Queensland in its written submissions, but may we say something about two particular cases which is relevant because of the way in which argument has developed.

Mr Keane mentioned yesterday, and we refer in paragraph 6.3 of our written submission to the decision of this Court in American Dairy Queen v Blue Rio. That case established, in relation to the Land Act 1962, to paraphrase the judgments, that a lease granted under that Act the Court would construe the statute so it was in conformity with and without altering the common law principles governing the creation of rights of property, unless the intention was manifest according to the true construction of the statute - unless another intention was manifest. Or, as your Honour the Chief Justice put it, that the interests of a lessee under the Act are those at common law modified by the relevant provisions of the Act. None of that is challenged by those opposite, with the possible exception of the Thayorre People. Our submission, with respect, is that it is the correct approach, unless there is, as we think was possibly suggested in argument, occasion to reconsider it in the light of Mabo [No 2], but our submission is that there is no reason in principle why one should.

We wanted to mention something raised by your Honour Justice McHugh, which is that all this thinking antedates Mabo [No 2]. We, in response to your Honour’s question, cannot find a case dealing with the same application or approach to the question of construction of the Land Act after Mabo [No 2], but there is at least one as recent as August 1991 in the Queensland Full Court, which was after Mabo [No 2] was argued. It is not on the lists and we thought we should add it to the authorities your Honours have.

We have circulated it this morning, we think. It is State of Queensland v Litz (1993) 1 QR 343 and in the interests of time I will not refer to the passages in full. They are at pages 349, lines 45 to page 350, line 17 in the judgment of his Honour Mr Justice McPherson and at page 352, lines 1 to 5 in the judgment of his Honour Mr Justice Derrington.

May we turn, your Honours, to our final submission which is that the question of extinguishment in this case can and should be resolved by the applications of the principles as to extinguishment established in Mabo [No 2] and Western Australia v The Commonwealth and before we deal with some things which were said by your Honours yesterday, to the extent that we can, we would make two brief points.

The first is that both in oral argument and in their written submissions, the Wik Peoples have said that not one of the respondents asserts any inconsistency in fact between the rights of native title holders and the rights of pastoralists. In the case of the pastoralists, our submission is that that is not so and, without reading them, could we mention to your Honours paragraphs 8.6 to 8.9 of our written submissions and paragraph 14.28 which take up the kinds of rights in fact, inconsistencies of right and inconsistency in fact, which will exist according to the coexistence theory put forward by the appellants.

The second point, your Honour, is that in Mabo [No 2], your Honour Justice Toohey dealing with extinguishment of native title at pages 195 and 196 said at page 196 that:

nothing in this judgment should be taken to suggest that the titles of those to whom land has been alienated by the Crown may now be disturbed.

Mr Keane yesterday showed to your Honours the true extent of the claims made by the Wik Peoples, although we would add a reference at page 138 of volume 1 of the appeal books to paragraph L of the prayer for relief which deals also with the question of extinguishment as asserted by the appellants, to what he said. Our submission is that the pastoral lease holders, who are respondents in the present case, are persons to whom titles have been alienated and that, having regard to the claims made against them and the sorts of factors which we have mentioned in paragraphs 8.6 to 8.9 of our written submission, what they are threatened with is aptly described as a disturbance of their titles. The final submission is that the question of extinguishment in this case can and should be resolved ‑ ‑ ‑

BRENNAN CJ: Well, I am not sure that that is a fair description of the argument that is put against you. First of all, what are your clients’ rights of renewal at the moment?

MR JACKSON: That has not been established in facts, but in the case of the Holroyd River Holding, I think there is a right of renewal at the expiration of the term which is the lease in question, 1B.

BRENNAN CJ: Well now, as I would understand the argument against you, you would be entitled under the statute to exercise the right of renewal. Would it affect the mortgagability of your interest?

MR JACKSON: We would submit as a matter of fact it would affect the mortgagability.

BRENNAN CJ: Why is that?

MR JACKSON: Because the assertion of the inconsistent title is something which a mortgagee would take into account in considering the mortgagability.

BRENNAN CJ: But it is not an inconsistent title, is it? In the argument that is put against you it is not inconsistent. It has to be consistent. I am just trying to understand why you say that your title would be affected.

MR JACKSON: It is to be disturbed on the claims pleaded because what is pleaded is that native title is neither extinguished nor impaired in any way.

BRENNAN CJ: And?

MR JACKSON: And we would submit, therefore, if the native title rights include those asserted, which are full beneficial ownership, then it follows that there are, as I have submitted perhaps loosely, inconsistent rights being asserted.

BRENNAN CJ: As I understand the argument put by the Wik Peoples at all events is that they have what is left after your interests are exhausted.

MR JACKSON: And in qualifying that proposition, they use an expression such as “to the extent that it is necessary to carry on pastoral activities”. So, what one then is immediately confronted with, your Honour, is a situation where there must be a day by day, more likely less frequently, assessment of what is necessary, what are the rights in opposition?

BRENNAN CJ: Well, one can understand that. One can understand that as an argument against what the Wik Peoples have put, but I am endeavouring to test your proposition that your title is affected. If that is your title, then that is what you have, no more. If, however, you have more, then you have more. I just do not see how the argument of native title affects your title.

MR JACKSON: It does not affect it as a matter of law within the existing system of title created by the Land Act but, if one does have to then work out de facto systems of priority which will then perhaps have to have also legal decisions made as to what are the necessary prevailing and non‑prevailing conditions, then we would submit once those legal decisions are made the title will be cut down to that extent, even though within the system of the Land Act it is recognised as not being affected. So, it is difficult to presently postulate precisely where we will end up on the coexistence theory.

BRENNAN CJ: I suppose it is. One matter that I must say concerns me is the notion of the exercise of the discretionary power to renew if native title subsists.

MR JACKSON: Quite, and potentially the application of the Native Title Act too. That would be a matter of concern of course to a mortgagee.

BRENNAN CJ: Well, would it?

MR JACKSON: If it were to apply, it potentially would be a concern because a mortgagee would then be looking at lending against, for example, the unexpired term with uncertainty as to what the right of renewal conveys. These are things that are not established and why we say non‑extinguishment leads to disturbance - perhaps not strictly a legal effect but disturbance of the title.

BRENNAN CJ: What are the sections of the Act that affect the right of renewal in your case?

MR JACKSON: I do not have it off the top of my head, your Honour. May we provide that by way of a note?

BRENNAN CJ: Yes.

MR JACKSON: We want to make only two brief points in terms of the principle of extinguishment, your Honours. Could we begin by reminding your Honours that the Thayorre People apparently challenge as a starting proposition that Western Australia v The Commonwealth and Mabo [No 2] establish that native title is extinguished in the case of any inconsistent grant. We also have in mind the observation of your Honour Justice Kirby yesterday that in Mabo [No 2] three Justices of the Court talked of extinguishment and others did not.

May we make three points about the two cases. The first is that in both cases all Justices of this Court used the language of extinguishment. The second is in Western Australia v The Commonwealth the Court unanimously referred to extinguishment by inconsistent grant at page 422. The third is that in Mabo [No 2] five of the Justices of this Court said that not only is there extinguishment by inconsistent grant but also that a Crown

lease, with the express qualification by two Justices that the lease confer a right of exclusive possession, extinguishes native title.

The substance of our final submission on the question of extinguishment principally is that, given that the titles of our clients are Crown leases conferring a right of exclusive possession consistently with both Mabo [No 2] and Western Australia v The Commonwealth there is extinguishment, our submission is that it is not necessary to identify any additional principle in order to determine whether native title is therefore extinguished by the grant of a pastoral lease. They are our submissions, your Honours.

BRENNAN CJ: Thank you, Mr Jackson. Mr Solicitor for Victoria.

MR GRAHAM: May it please the Court. In the second part of our written submissions dealing with pastoral leases, we drew attention to certain characteristics and differences which historically have existed in Victoria in the regulation of the sale and disposal of Crown land in that State and in the pattern and development of such land in Victoria by comparison to other parts of mainland Australia.

TOOHEY J: Mr Solicitor, could I just interrupt you. The amended written submissions that we have received, are they in substitution?

MR GRAHAM: They are, your Honour, yes.

TOOHEY J: Entire substitution?

MR GRAHAM: Entire substitution. They correct some references which we gave to the learned textbooks that are cited in relation to the topic of reversionary interests but they do nothing more than that. I do not propose to expand on that part of the written submission. What we do desire to do this morning is to expand just briefly upon the statutory position in Victoria, and for that purpose we have provided to the Court a collection of statutory material and an explanatory memorandum which I hope your Honours have received in the course of this morning. It is a slim booklet with orange tabs running down the side of it.

BRENNAN CJ: What is the purpose of this, Mr Solicitor?

MR GRAHAM: The purpose is simply, your Honour, because we felt - if I can answer your Honour this way. It was suggested in the course of argument that the Court might need to consider the statutory regimes which prevailed elsewhere than in Queensland in reaching a decision in relation to the particular leases and legislative regime which prevails in Queensland in order that it can make a pronouncement in relation to the effect of the grant of pastoral leases upon native title in States other than Queensland and in the Northern Territory. In order that the Court would be equipped with the necessary material to approach that task if it spreads beyond the boundaries of Queensland, this material is provided to the Court.

BRENNAN CJ: There are two questions, are there not? One is whether, having regard to the legislative history in the Australian colonies at the times when the Queensland relevant Acts were passed, there was an understanding which is manifest in the text of those colonial legislations which is informative in relation to the meaning and scope of the Queensland Acts. The second is whether in the expression of any reasons for judgment this Court needs to be alerted to distinctions between the land systems in the respective States and Territories in a manner which will allow us to ensure that no accidental reference can be taken to affect the rights and interests which might be derived from those Acts.

MR GRAHAM: As to the first question, your Honour, the Court would of course be assisted by knowledge of the regimes which prevailed in all colonies up until each colony went its separate way and passed its own land legislation in Victoria and in Queensland both, I think, in 1860. So far as the second matter is concerned, it is certainly important from our point of view that the Court be acquainted with the very different pattern of legislation and the scheme of legislation which developed in Victoria which differs in some significant ways from that which prevailed in Queensland.

TOOHEY J: But why should we be alerted to those differences?

MR GRAHAM: Only having regard to the second proposition put to me by his Honour the Chief Justice a moment ago.

BRENNAN CJ: You will draw our attention to anything that is significant, will you?

MR GRAHAM: In the booklet that has been provided to the Court, we believe we have, and we also seek to draw from that material the further proposition that, at least so far as Victorian practice was concerned, there was a constant and firm adherence in both legislation, regulation and in statutory forms of lease and other instruments granted under the legislation to the language of the common law and the use of expressions such as fee simple, lease and licence, no more than that. So we provide that material to the Court for the purposes of that caveat which your Honour the Chief Justice just mentioned.

Could I just then take up one matter which emerged in the course of argument yesterday and the day before in relation to the characteristics of a pastoral lease under Australian law? Two propositions seem to emerge in the course of argument. It was suggested that pastoral leases such as those now under consideration constitute a novel form of tenure or land holding which is unique to Australia and which is the product of Australian statute law. The second, as we understood it was, that the grant of a pastoral lease under the relevant statutory regimes does not give rise to a reversionary interest in the Crown as would be the case in the grant of a lease by an ordinary landowner. Rather, that the Crown, as grantor, obtains or has a set of rights which are the creature of statute, and power is also the creature of statute which enable the Crown to receive the rent to enforce the covenants, to forfeit the lease in the event of breach, and to re-enter at the end of the term.

However, it is our submission that one cannot take as one’s starting point the legislation as enacted by the various colonial legislatures following self-government in the 19th century. The true starting point, in our submission, must be the imperial legislation which was enforced at the time when each of the colonies obtained self-government, notably the Imperial Act 1842 and the Imperial Act 1846, together with the Order in Council of 1847. The references to those three provisions are to be found in appendix 2 to the Commonwealth’s submissions, and I will not take the Court’s time up in repeating those references. If I can just remind the Court that by section II of the 1842 Act, the whole process of sale and disposal of the wastelands of the Crown in Australia was placed under a statutory regime.

By section I of the 1846 Imperial Act the Crown was enabled to demise any wastelands of the Crown for a term not exceeding 14 years. That was the words used by the statute, and section VI of the 1846 Imperial Act authorised the making of regulations by Her Majesty in Council in relation to demises and licences of wastelands. Chaper 1 of the Order in Council of 1847 divided the lands in New South Wales, as your Honours would no doubt be aware, into three classes, namely, lands in settled districts, intermediate lands, and land in unsettled districts. Chapter 2 of the Order in Council authorised the governor to grant leases of runs of land within the unsettled districts for terms not exceeding 14 years “for pastoral purposes”. Provision was made for the determination of rent and in respect of forfeiture, but very little else was provided for in the Order in Council so far as the contents of leases of land in unsettled districts were concerned.

No doubt it was assumed, and we would so submit, that the full terms of the relationship between Crown and lessee would emerge from the terms of the lease actually granted. Chapters III and IV of the 1847 Order in Council provided for the grant of leases for pastoral purposes again, of intermediate land and land in the settled districts for terms not exceeding eight years and one year respectively. Here it is that we see, in our submission, the true origins of the concept of a pastoral lease or a lease for pastoral purposes in Australia as a creature of the United Kingdom Parliament.

It would be our respectful submission that it is really not acceptable to assert that the Imperial Parliament in 1846 or Her Majesty in Council in 1847 could be regarded as having created a new form of tenure or a new type of land holding unique to Australia for the purposes of Australian conditions, but differing in fundamental respects from a lease as understood in English law as at 1846 or 1847 with those concerned to formulate the Act of 1846, and the Order in Council adopted the familiar terminology of conveyances of the time speaking of demise, rent, forfeiture, re-entry and so forth.

TOOHEY J: But they did not adopt the nomenclature or, rather, they adopted a new nomenclature. What do we know about the origin of that terminology, Mr Solicitor, those pastoral leases?

MR GRAHAM: It may not be answering your Honour’s question; we know a great deal, your Honour, because of the background that led to the enactment of the Act of 1846. We know it was enacted in order to provide a form of secure tenure.

TOOHEY J: No, I am sorry, I may not have made myself clear. I was not asking you about the content but rather the terminology which was employed which seems, certainly so far as the United Kingdom is concerned, to have been novel in its use in Australia.

MR GRAHAM: When your Honour says “novel”, I understand your Honour to be referring to the expression for “pastoral purposes” which appeared in the Order in Council, whereas in the Act of 1846, the expression was simply “to demise for any term of years not exceeding 14”. That, in our submission, would not be regarded as novel terminology. That would be the natural choice of Parliamentary Counsel in 1846, no doubt instructed by learned works such as Challis and Fern, but one could take the Parliament of the United Kingdom to be using those terms in precisely the same terms as they would have appeared in other legislation dealing with leasehold interests in the past.

But we would submit that if one takes one starting point in the United Kingdom in 1846, it makes the activity or, rather, the choice of language adopted by the colonial legislators, when they came to enact their own regimes and again chose to use the language of the common law and real property, quite comprehensible and makes it difficult, at the very least, to reach the conclusion that some new form of interest was being created in an entirely different regime of proprietary rights as between Crown and lessee was being called into existence. If the Court pleases, those are the submissions which we desire to make to the Court in addition to our written submissions.

MR BENNETT: Thank you, Mr Solicitor. Mr Solicitor for Western Australia.

MR MEADOWS:May it please the Court. As foreshadowed, we propose that I would address the Court on the question of government agreements and that my learned friend Ms Wheeler would address the Court on the issue of pastoral leases. We will both be short, as things have transpired.

Your Honours, as to government agreements, the propositions that the execution of the agreements in question was in breach of some fiduciary duty or involved a want of procedural fairness have been so lightly put that we have little to say beyond what is in our written submissions and, in particular, at paragraphs 40 to 62.

We would say that those submissions provide a complete answer to the two contentions that are put forward. Essentially, we adopt the submissions of my learned friend the Solicitor-General for Queensland and those of my learned friend Mr Fraser, but we would go a step further and say that it is not essential to defeat those contentions that the government agreements have the force of statute. We would contend that it is sufficient that the government agreements have the sanction of Parliament. A statute which simply ratifies or approves or, in some other way, authorises the entry into a government agreement by the Executive will suffice.

The reason we make this submission is that it may be of significance for Western Australia. We point out in paragraph 46 of our submissions that there are various types of government agreements that have been in force in Western Australia, over 60 of them, and they do have different formats. If I could take you very briefly to paragraph 46 of our submissions, you can see that there set out are the various types of agreements which have been the subject of agreement Acts in Western Australia.

BRENNAN CJ: Three of those classes are simply provisions which would allow the State, or the State instrumentalities, either to take action or to bear a liability. One of them, namaely the third, provisions to have the force of law, are susceptible of creating rights in individuals, whether corporate or unincorporate. Is there anything in relation - and those seem to be the character of the contracts with which we are concerned in the Comalco and Pechiney cases. Is there any learning in Western Australia as to the effect of provisions in an Act which confer upon an agreement the force of law?

MR MEADOWS: If you mean are there any judgments of the courts of Western Australia, not that I am conscious of, your Honour. Our concern today would be that it would be to ensure that in the reasons of this Court there was no statement which suggested that it was necessary for a Government agreement to have the force of a statute in order to preclude claims of the nature which were asserted by the appellants. We would be content, if that question was simply left open. I should add, your Honour, that in 1979 the Parliament of Western Australia passed the Government Agreements Act which applies to all Government agreements, past and future, with the purpose of giving them statutory force. That does not detract from our primary submission that it is sufficient if the Parliament has ratified or approved the agreement in order to defeat claims of the nature which are made.

TOOHEY J: Ratified or approved, Mr Solicitor, only, or authorised the entry into the agreement?

MR MEADOWS: We would say that the words “ratify” or “approve” convey with them, in the context of that legislation, an authorisation. Some of the statutes in Western Australia relate to agreements that have already been entered into, and some relate to agreements which are to be entered into. We would say either way the ratification or approval of the agreement would be sufficient to convey the authority for the Executive to enter into the agreements.

TOOHEY J: Put loosely, I take it you are saying that so long as there is legislative backing for the agreement it does not matter what precise form that backing takes.

MR MEADOWS: Quite so, your Honour. We would say when one looks at the purpose of the legislation, which is to authorise the carrying out of the agreement, that it necessarily follows that that authority would exist in the Executive.

BRENNAN CJ: That raises - is potentially going to raise a number of problems. I take it that you are putting these submissions in the context of inconsistency with native title?

MR MEADOWS: Yes, your Honour. No, I beg your pardon. I am making these submissions in relation to whether there was a breach of fiduciary - whether there could be a breach of fiduciary duty in entering into the agreement or there could be a want of procedural fairness. It is not directed to whether it defeats native title.

BRENNAN CJ: I see.

MR MEADOWS: That is as far as we need go in this particular case, your Honours. The requirement of statutory force is simply not needed in order to defeat claims of the nature made in this case. We would be content if, in this case, the question of whether an agreement lacking statutory force could defeat claims of this nature is one which was left open by your Honours. If it please the Court, they are the submissions that we wish to put on the question of Government agreements.

BRENNAN CJ: Yes, thank you, Mr Solicitor. Ms Wheeler.

MS WHEELER: May it please the Court. In the submissions on the pastoral lease issue, I was proposing to do two things only. One is to deal briefly with a matter which arose during the course of argument yesterday, and which surfaced again today. The other, which I propose to deal with first, was briefly to mention for the purposes indicated by your Honour the Chief Justice in relation to the Victorian submissions, relevant differences and similarities between the Western Australian and Queensland provisions.

In relation to that question of differences and similarities, the Court will be aware already that many Western Australian pastoral leases contain provision within the terms of the lease in favour of access by Aboriginal persons for the purposes of sustenance, and that provision is found in each of the statutory forms of lease in the earlier leases.

KIRBY J: It was not universal. It was common but not universal.

MS WHEELER: It was universal until a short period in the 1930s when it disappeared and then it was reinstated in the statute but was not found in the forms of the lease and so since, I think 1935, your Honour, section 106 of the Land Act has contained a provision which enables access by Aboriginal persons for the purposes of sustenance but in unenclosed and unimproved parts of the leases only and that then banished from the form of the lease.

DAWSON J: Is that in the form of a statutory insertion in the lease or is it just a statutory provision?

MS WHEELER: No, it is just a statutory provision , your Honour, and, indeed, it reflects what happened with a number of provisions originally found in the lease. In the earlier leases - and I will come to it in a moment - there were provisions for access by timber getters and travellers and that sort of thing. Most of those have gone but those which remain and are now not in the lease, they are found in the statute.

KIRBY J: Presumably, Parliament enacted that provision on an assumption or belief that without it there might be difficulties in law in such rights being enjoyed.

MS WHEELER: Yes, precisely, your Honour, and that was what we were proposing to say about that provision today. Of course, the effect of those provisions in relation to the interest that was granted does not arise directly as a question in this case, although the Court will note that out of caution we have briefly summarised, at pages 30 to 33 of our submissions, how, we submit, the principles for which we contend in this case would apply in relation to those access provisions or reservations, as they are often called.

For the purposes of today’s question, we would simply note Queensland too had similar provisions at one time in their leases, apparently not given the statutory provision that we had, and it is difficult in either case to know why it was thought to be necessary to insert provisions of that kind if it was thought that the applicants’ argument was correct, that is, that the grant did not itself allow the pastoralist to exclude Aboriginal persons and, of course, particularly in relation to the statutes in Western Australia where one is searching for a statutory intention, we would submit, it is significant that access was expressly provided for. Leaving those reservations, if I can call them that, loosely aside, then there are some other similarities I wanted to mention specifically between Queensland and Western Australia.

BRENNAN CJ: Can I just interrupt you for a moment?

MS WHEELER: Yes.

BRENNAN CJ: The Western Australian reservations were solely statutory. There was not a practice of imposing, by way of covenant upon the lessee, an obligation to give access.

MS WHEELER: The obligation was found in the lease itself but it was a lease which was prescribed by the regulations in that form.

BRENNAN CJ: Be it so ‑ ‑ ‑

MS WHEELER: Yes.

BRENNAN CJ: ‑ ‑ ‑ but was the reservation by way of an exception to what was granted or was it by way of imposing an obligation upon the lessee to do something, namely to give access?

MS WHEELER: That would be a matter of construction of the instrument itself and the construction for which we contend is that it was a reservation; it was a form of covenant imposed upon the lessee. Your Honour will find that summarised at pages 30 through to 33 of our submissions.

GUMMOW J: Paragraph 82.

MS WHEELER: Yes, 81 and following deals with that question, and the effect of the statutory provision also in our submissions, although of course ‑ ‑ ‑

KIRBY J: May the explanation be that historically that was inserted because of an assumption, based upon the then knowledge of the law, that without it there would be no such right, but we now know that since 1992 that that right did exist and indeed existed back to the beginning of settlement, and therefore we have to put our minds back into the situation of looking at this statutory provision with the retrospect of it that such a right did exist. May the explanation for inserting it be that it was an assumption which has now being exploded by Mabo?

MS WHEELER: If one takes the view that because of what the lease granted on its proper construction that provision was unnecessary, then one can arrive at that conclusion. The use, which we would contend one makes of the provision, is that it is one among many, but it is one indication of the statutory intention, that is what the legislature thought that they were doing. We do not rely on that primarily by any means; we rely on the terms used and all the matters that the Court has already been referred to, but we submit that rather than it being an erroneous assumption about native title, it reflected a correct assumption, a correct view of the nature of the interest which was being granted.

TOOHEY J: Ms Wheeler, I am not sure that I have fully understood your answer to the Chief Justice about the distinction between reservation and covenant. So far as the leases themselves were concerned - and of course we are referring to those leases which contain some such provision - do you say they were by way of reservation ‑ ‑ ‑

MS WHEELER: Regrant.

TOOHEY J:-.-.-not by way of covenant?

MS WHEELER: We put it on a couple of bases but what we say it was not was that it was not an exception from the lease. We say it was either perhaps a reservation properly so-called or more appropriately an interest in the nature of a profit a prendre or something of that kind, which is the covenant or regrant from the lessee. The distinction which is critical for our purposes is that between exception and everything else, it would seem to us.

BRENNAN CJ: Well, looking at paragraph 82 and the words first quoted there, the critical words before “full right” are omitted. Is it “The lessee promises to give”, or is it that “The instrument of grant confers”?

MS WHEELER: No. It is extremely difficult to read, your Honour, and if I can take your Honour to it, the reason that the words that appear before those words are not quoted is that they go on for half a page or thereabouts. Now I think the form of the lease is ‑ ‑ ‑

TOOHEY J: Do you mean that there are a number of reservations of which this is only one?

MS WHEELER: There are all sorts of provisions, some of which may be seen as exceptions and some of which are reservations properly so-called and some of which do not seem to fit into either category, going on for roughly a page or thereabouts.

BRENNAN CJ: There is a pastoral lease at page 52, for example. Are you able to just show us which part of the page ‑ ‑ ‑

MS WHEELER: If I could take your Honours to page 69, I think it is probably easier to read. The words quoted appear approximately two‑thirds of the way down the page immediately after the reference to persons passing through any part of the demised premises and so on with their stock. It seems to start about 11 lines or thereabouts down from the top of the lease.

GUMMOW J: The word “EXCEPT”.

MS WHEELER: Yes, “EXCEPT and always reserved” is how it starts and then it starts with the reservation of power to sell ‑ ‑ ‑

BRENNAN CJ: Then this is an exception.

MS WHEELER: Well, that is not an exception properly so called, in our submission, your Honour, because what appears first is a power, a reservation of - I am not sure it is properly a reservation either - power to sell parts of the premises subject to a claim for improvements, power to make grants of parts of the premises. Then there is probably something which may be an exception properly so called subject to the question of uncertainty; that is to enter upon whatever parts are thought - such parts as “may seem best” for roads and communications and things of that kind.

GUMMOW J: Yes, the words immediately above the words “and full right to the Aboriginal natives”, four lines above that and:

also for any person or persons to enter, pass over, through, and out of any such part of the said demised Premises, while passing from one part of the country to another -

That is indicative of the sort of concern Justice McHugh was mentioning yesterday.

MS WHEELER: Yes, it was, your Honour. I was going to draw specific attention to that because they have them in Queensland as well. So that it would seem to us - and I do not want to deal with this at too much length today because it does distract from the principal issue in this case - but our submission is that one does not take the words “EXCEPT and always reserved” there as governing everything that then follows in the sense of making it an exception properly so called because of the miscellaneous nature, the very varied nature, of the interests or provisions which are there dealt with.

When one comes to the statute, if I can just mention that briefly also for completeness, that is found at page - the statutory provision is found - we have not provided it. I think we have provided its predecessor. The earlier provision which did not deal with Aboriginal natives is found at pages 81 to 82. That simply imports some of the rights which were originally found in the lease into the statute, but the modern provision is found at page 95, your Honours. That is the amending Act which simply adds to section 106. The amending Act is section 11. It probably would have been more convenient to provide your Honours with the way in which it now appears in the statute, but it amends the principal Act by adding a subsection which stands on its own which does not seem to be conferring rights as against any particular person or, indeed, dealing with the lease at all. It is simply creating a right in the Aboriginal natives to enter upon the unenclosed and unimproved parts of the land.

The submission is for the purposes of the present proceedings and for another time the summary in pages 30 to 33 illustrates the way in which we would seek to have the Court approach the question, but for today’s purposes, the contention is simply that that indicates the legislative understanding of the interest which has been granted by the pastoral lease.

If I could turn now to what one can shortly call the interesse termini question, in paragraph 37 on page 17 of our submissions, we have given the Court references to Western Australian equivalents of section 6(2) of the Queensland Act. Now, all those references appear to be incorrect and can I just ask your Honours to correct them. Perhaps I could just simply mention that the earliest provision of the type is found in the 1860 regulations, regulation 3 of Chapter I. We have not provided that to your Honours but it is identical to regulation 3 of Chapter I of the 1864 regulations which appears at page 44 of the book in the right‑hand column.

I will not take your Honours to it. It is very similar to the Queensland provision except that it also not only provides that the conveyance is valid and effectual in the law to transfer to, it goes on to say, “and to vest in possession in any such purchaser or purchasers any such lands” and so on. So, very similar but using the magic word “possession” as well.

McHUGH J: Was the Statute of Uses in force in Western Australia?

MS WHEELER: I cannot immediately tell your Honour. Could I get back to that if I need to? I will come back to that if I have to.

GUMMOW J: Well, you do not have 9 Geo IV over there, do you? You do not have the equivalent to the New South Wales 9 Geo IV, have you, or not?

McHUGH J: Section 24.

MS WHEELER: You will have to tell me what that is, your Honour, if we do not have it.

GUMMOW J: Well, it brought in English law at a certain date, that is how New South Wales and the Eastern States and a lot of English statutes ‑ ‑ ‑

MS WHEELER: No, it is not how it worked in Western Australia.

McHUGH J: The reason I asked that is that I meant to look it up last night but I have got a recollection that, besides entry, a lessee got an interest in land either by, I think it was, a bargain in sale or any other form of conveyance under the Statute of Uses, that was effective under the Statute of Uses. So, quite apart from entry, you got it, but I will have to look that up.

MS WHEELER: No, we have a modern provision that deals with all of that but I cannot take your Honour to the ancestors of it, I am afraid. Simply to complete the references, the later provisions which are relevantly almost identical to those I just mentioned are section 4 of the Land Act 1898 and section 7(2) of the Land Act 1933. So, the short submission is that one does not need to enter into the land or enter into possession in Western Australia either.

If I can turn then broadly to the general scheme of the Land Acts and the words used in the leases, so far as pastoral leases are concerned our submission is that there is no relevant difference between the Queensland and Western Australian provisions although there are, of course, very many differences of detail as to precisely who was allowed onto the land, in what circumstances, what the statutory exceptions and modifications were and so on. In each State, however, in our submission, a pastoral lease is plainly a lease carrying with it a right of exclusive possession and we have set out, not exhaustively but sufficiently to give the flavour of the Western Australian provisions, some of them and their history and context at paragraphs 12, 14 and 15 of our submissions and I do not think I need to take your Honours to those at the moment. We refer particularly to the language used and some of the other provisions which seem based on an assumption that the interest being conveyed is of that type and also to some of the historical context.

As to the submissions made by Mr McIntyre that there are differences and that those differences are relevant, in our submission, his written submissions may be seen to be directed to two and perhaps three issues which simply do not arise in this case. The first is the express provision for access by Aboriginal persons. The second seems to be the contracts, promises and engagements argument which was raised in Waanyi and which does not feature in this case and, in our submission, those submissions perhaps also reflect a search for a subjective intention of the colonial authorities in Western Australia which is like the similar search in Queensland not relevant to the construction of the grant for the reasons which have already been put in some detail to your Honours by others.

That section of the Kimberley Land Council submissions at pages 17 to 21 which is headed, “Pastoral Lease as a Qualified Right”, in our submission, simply serves to demonstrate that West Australian pastoral leases were issued for the same sorts of purposes and were subject to the same sorts of express statutory modifications and reservations in the instrument as Queensland leases. So, our submission, in short, is that the principles for which we contend would yield the same answer in Western Australia and in Queensland.

If I could turn now to one matter which arose in argument yesterday and I think surfaced again today in relation to the size and remoteness of pastoral leases and the suggestion that because access to them would have been necessary for all sorts of practical reasons, it cannot have been intended that exclusive possession was given to the lessee. As to the question of size, could I mention, first, that at least the West Australian history has been that pastoral leases varied in enormously in size, and we go down to about 3,000 acres and up to about a million and it is difficult to say that in relation to all of those, the same sorts of considerations would have applied. So one cannot, in my submission, make the assumption that because pastoral leases were very big, all of these sorts of considerations applied to all of them. They were not all very big. They were not all remote.

Indeed, in the book of materials which goes with our submissions, at page - it is very hard to read the page reference - 47, one finds the 1864 regulations providing that one category of pastoral lease, those in Class B, which were the southern ones, could not exceed 10,000 acres. So they were actually quite small to start with. They got bigger as time went on. Secondly, just on that point of size, of course, not all freeholds were small and there were very substantial grants, particularly for agricultural purposes and particularly in the south-west of the State of freehold land to which one would have thought perhaps some similar considerations would have applied.

Indeed, I am instructed that in relation to an action brought by those parties whom Mr Bartlett represents here today, there is in the Kimberley region of Western Australia at least one holding of 100 square miles of freehold smack in the middle of all the pastoral leases. So that is a fairly substantial freehold and bigger than some of the pastoral leases. So one cannot simply say pastoral leases were always factually different. I suppose it is the thrust of that submission.

McHUGH J: I noticed in Roberts, his History of Land Settlement 1788‑1920, that disputes about boundaries were very common, certainly in the early part of last century, which would tend to indicate that the leases did intend to give holders exclusive possession as against other ‑ ‑ ‑

MS WHEELER: Yes. Well, they would be particularly vital as between neighbouring lessees, I suppose, but, yes, they did seem to be of importance, your Honour. The matter which your Honour Justice Gummow has already picked up in relation to the matter your Honour Justice McHugh referred to yesterday in relation to access for practical reasons by others on to and through pastoral leases. Could I just mention in relation to the cattle‑drive question, at least, without going to them, we found section 205 of the 1910 Queensland Act and 275 of the 1962 Act, which contain very elaborate provision for access by those travelling with stock through pastoral leases. It allows their passage on condition, I think. It even went on to prescribe they had to do at least six miles a day or something of that kind.

TOOHEY J: But a lot of that was done through the creation of stock routes.

MS WHEELER: Stock routes, yes, your Honour, that was very common, but there was also this provision even where there were not stock routes, it seems.

GUMMOW J: What was the 1910 section?

MS WHEELER: The 1910 was, unless I got the reference wrong, 205.

GUMMOW J: Thank you.

MS WHEELER: And your Honour Justice Gummow has noted that we had those sorts of provisions, although expressed in much broader terms, in Western Australia too: we allowed access for travellers and timber getters and all of that sort of thing. That again, in our submission, suggests that notwithstanding the size and remoteness of many of the leases, although not all of them, it was intended by the grant to enable the lessee to exclude anyone and where that was practically undesirable specific legislative provision was made. May it please the Court.

BRENNAN CJ: Thank you, Ms Wheeler. Mr Solicitor for South Australia.

MR SELWAY: If it please the Court. Could I perhaps start by giving a very short explanation of the differences which we see as relevant or not relevant in respect of the situation in South Australia. Perhaps there are two matters I should mention: the first is that whatever may have been the situation elsewhere, in South Australia it would appear that all land grants have always been made pursuant to statute. That is dealt with in another context in paragraph 9 of our written submission where we refer to the somewhat peculiar position of the South Australian Colonisation Commissioners, who had specific statutory power to make all land grants in the State of South Australia. The position, in fact, was resolved practically because after a couple of years the Governor of South Australia was appointed the resident Colonisation Commissioner, so the two functions merged, but we do make the point that, in South Australia at least, there was always a statutory power to make land grants.

In respect of pastoral leases, the pastoral leases in South Australia until 1989 contained a reservation, the effect of which was that any Aborigines could enter, cross over, hunt and camp on pastoral leases for traditional purposes. The exact terms of that reservation changed from time to time. As at the turn of the century the reservation was in the same terms in the Northern Territory. My learned friend, Mr Sher, read that reservation to the Court yesterday.

Since 1989 the reservation is no longer contained within the lease, but is instead a statutory right, again being a right to cross over, camp and hunt. That right is contained in section 47 of the Pastoral Land Management and Conservation Act 1989 (SA). Although the pastoral leases differ from those in Queensland in a number of ways, but of which that is the most obviously relevant, in our submission, the answer to this case will also resolve the situation in South Australia. That is for the reasons we give in paragraphs 11, 12 and 13 of our written submissions, and also the submissions of the Commonwealth, Western Australia and Northern Territory, dealing with the effect of reservations which we say to the same general effect. The effect of that, in our submission, is that in South Australia, all Aborigines have statutory rights to cross over, hunt and camp on pastoral leases, but the native title right has been extinguished.

Our written submissions include a broad overview of the recognition of customary law in former British colonies. The purpose of doing so is two‑fold; first to show that there are significant differences, we say, between the approach adopted in each of the former colonies and, second, to highlight that those differences cannot be explained by any categorisation of the colony, whether it be a settled colony, a ceded colony or a conquered colony. In our submission, those differences can only be explained in terms of the actual history of settlement of the relevant colony and, in particular, the relationships between the indigenous inhabitants and the Crown in that colony.

In our submission, when a court comes to consider the nature of native title over two centuries after first settlement, judicial method and the nature of the common law, itself, impose a real constraint upon, if you like, the power of the court to reconstruct the law as previously understood. That was realised and acknowledge by Chief Justice Marshall in Johnson v McIntosh 21 US 543, at 572 where his Honour, when starting his analysis of Indian customary law and the extent to which it was recognised in the United States, made the point that the rules by which property was acquired and preserved is not and cannot be drawn into question. Further, that the principles that the Government had adopted in its dealing with the indigenous peoples of North America gave to that court the rules it had to apply for its decision, and properly then considered what that court did in Johnson v McIntosh was analyse the history of the relations between the American Indians and the Crown, and later the US Government and on the basis of that history, come to the conclusion as to what the nature of native title was in the US.

As we attempt to point out in our written submissions, native title in the United States has a different foundation from that which it has here. In the United States it is founded upon the independent sovereignty of the Indian nations.

Your Honours, we say that the approach adopted by this Court in Mabo [No 2] reflects that same general principle. That is set out in paragraph 8 of our written submissions and we do not take the Court through it. Our conclusion is that the land title system in Australia must be accepted as a given, no matter what the situation may have been if the Court had been deciding Mabo [No 2] in 1800 or 1801. Your Honours, that may present some answer to the queries that your Honour Justice Kirby and your Honour Justice McHugh have raised as to what the Court should do in looking back at statutes that have been previously interpreted and land tenure which has been previously considered. For example, if one were looking at the situation now and the Crown passed its first Crown Lands Act now, the Court may well look at the word “wasteland” or “Crown land” as defined in those Acts and read it down, and read it down on the basis that those words did not include land in which there had been previous title, or, in which there existed other title which was recognised by the common law.

McHUGH J: What do you say, or how does the concept that Acts are taken to be always speaking fit in with this?

MR SELWAY: To a certain extent what we say is that the very recognition in Mabo [No 2] of native title has within it its own constraint, its own constraint because the Court is faced with a choice in Mabo [No 2]. It can deny the existence of native title, that being, as it were, the historical fact of Australian development for the previous 200 years, or the Court can acknowledge native title but within a constraint that it cannot fracture the skeletal principle.

The Court has not adopted a principle of retrospective overruling. In any event, one wonders how it could apply in a circumstance such as this, but what the Court has done, and we say, with respect, perfectly properly, is it has adopted a theory of native title and applied a principle of native title which makes sense of both native title and acknowledges the existence of the tenure system of land title and land titles that have been granted. The Court has done so by, if one wants to apply the word, selectively applying the principles.

KIRBY J: You said the Court did not adopt a retrospective overruling, but my understanding is that that is precisely what it did adopt. It did not adopt a prospective overruling; it adopted a retrospective ‑ ‑ ‑

MR SELWAY: I apologise.

KIRBY J: That is the problem, that it then declares that from 1800, from 1788, this title has existed. We have to somehow fit that into the law as it developed on a different hypothesis.

MR SELWAY: I understand, your Honour, but what we say is that it is clear from Mabo and also from Western Australia v The Commonwealth that there has not been a reinterpretation of the Waste Lands Acts and the Crown Lands Acts. One has not come to a result that the Crown had no power to grant tenure over land in which there was native title.

DAWSON J: The Court could not have come to that conclusion because, if it had decided that in rejecting terra nullius the common law was not brought to Australia, which is the logical conclusion, then the Court’s legitimacy would have disappeared too. So it was forced into a situation where instead it adapted the common law accepting that it had been brought.

MR SELWAY: With respect, your Honour, that is what we say the Court did in Mabo [No 2]. It was constrained by the history of 200 years and that constraint, we say, still limits the Court in its approach to native title issues. If the Court were sitting in 1801 or 1802, the Court may well be able to adopt a much more broad and flexible view of what native title is and how it applies.

McHUGH J: I do not see that, I do not see that at all. As far as I am concerned, Mabo only declared what the common law was and it had been misunderstood in this country.

MR SELWAY: Yes, your Honour, but what we say is all of Mabo declared what the common law was. One cannot take Mabo in modules, I think was put before the Court before.

KIRBY J: But it did not answer this particular problem. It gave some indications, we have to try to be consistent with that, but this problem was not presented then and this is at the margin, that is the problem. There is no authority that decides this matter.

MR SELWAY: Your Honours, what we would say to that is that that is true so far as it goes, but Mabo [No 2], in effect, changed the law for Australia. It serves no purpose for South Australia to come along and say, “Mabo [No 2] was about the Torres Strait Islands. It has nothing whatever to do with South Australia.” It is perfectly plain the decision in Mabo [No 2] was a decision of broad reach and scale.

McHUGH J: I have never understood the criticism of the Court for deciding, as it said, more than that native title applied to the Island. I do not see how we could have reached the conclusion we did about what occurred in 1879 in the Murray Islands without considering the effect on the whole of Australia in 1788. It was a necessary step as far as I was concerned.

MR SELWAY: And the way the judgment proceeded, that was clearly a necessary step in reaching the result the Court reached, but all we put to the Court is that in considering the question of how native title impacts upon existing title and the existing understanding of title, that impact itself is one of the elements that was taken into account, in our submission, in Mabo [No 2] in developing it.

McHUGH J: Mr Solicitor, my problem is this: it seems to me that if the Court in 1801 decided native title the same way as we did in Mabo, it would still have held that a grant of an estate in fee destroyed the native title and it would still have held that a grant of a lease by the Crown would have destroyed native title, but the real question here is, is the interest taken under these pastoral leases the same nature as the interest taken under a lease carved out of an estate in fee simple, for example? Does it give exclusive possession? That seems to me to be the real problem in this particular case.

MR SELWAY: Your Honour, the answer has already been made by several of my learned friends.

McHUGH J: Yes.

MR SELWAY: Our answer to it is there is authority in favour of it, that to vary that authority, in our submission, has the effect that Mabo [No 2] has varied cases that on the face of it Mabo [No 2] did not appear that it was varied.

McHUGH J: As you say, if the Land Act 1910 and 1962 was enacted yesterday, I think at the moment anyway my view would be that one would accommodate native title and hold that it was not intended to overrule it, but we have got to look at the position in 1910 and 1962, we have got to look at the weight of authority, including the decisions in Queensland in 1870, what this Court said in 1925 and the use of concepts like “leased”, “demise”, “rent”, “term”, “interest in land”, et cetera. It all amounts to a formidable argument in favour of the respondents.

MR SELWAY: With respect, we say exactly that, your Honour. The second proposition, of course, which has also been put by my learned friends, is that there may be matters of policy but there are no matters of principle by which one can distinguish pastoral leases from fee simple at its highest, perpetual leases and others, so that one can say, “Well, here’s a rule for pastoral leases and here’s a rule for fee simple”.

KIRBY J: The suggested principle is that this was a statute in an Australian context dealing with an Australian reality with huge leases, with Aboriginals wandering across the Australian continent. These are said to be different in principle, not policy, from a lease in a feudal system in rural England.

MR SELWAY: Your Honour, I can understand that argument, but what we say is whatever one says about a pastoral lease within the Australian context, how does one distinguish it within an Australian context from fee simple and from perpetual leases, which have also been granted over large areas? How does one distinguish that pastoral leases are in large areas because they are usually on marginal lands? A fee simple applied on better lands may have had exactly the same effect on the Aborigines living on those lands as a pastoral lease does on pastoral lands. Your Honours, all we say is that when one gets to determining what the point of principle is for making the distinction, it becomes very difficult. The point of policy may be clear but, with respect, policy in general terms is not a judicial issue but a legislative one.

KIRBY J: I am not sure that I accept that. Justice Deane said in Fay v Oceanic that where there is no binding authority on the Court the Court looks to its usual sources, legal authority adapted by analogy, legal principle, legal policy.

MR SELWAY: Yes, your Honour.

KIRBY J: It is legal policy, it is not idiosyncratic policy, but it is to try to fit 1992 into a legal system which developed on a different hypothesis.

MR SELWAY: Yes, I understand that, your Honour. Perhaps if I rest on judicial policy and take it as our submission that the only factors that can distinguish are matters which, in terms of judicial policy, could not be taken into account. Your Honours, there are two qualifications we need to make to our written submissions. The first, in paragraphs 4(a) and 5(a), which are on pages 4 and 6, we refer to the effect of a Crown grant in the United States and Canada in extinguishing native title, and, in general terms, make the proposition that consent is required from the native title holders.

That proposition is inconsistent with some propositions put by some of my learned friends and, in particular, my learned friend, Mr Bradshaw, particularly disagrees with it on page 8 of their reply. Your Honours, some part of that may be because of my lack of clarity. Those paragraphs refer to the prerogative powers of the Crown and not Crown grants generally, and it is our submission that in both the United States and Canada the law seems to be that in respect of the prerogative powers of the Crown and/or government consent was required to extinguish. In the absence of such consent the title granted was subject to native title.

Your Honours, that follows from the history of those former colonies and if we can just refer to pages 44 point 7 and 46 point 6 of our materials and perhaps make the point also that Justice Deane and your Honour Justice Gaudron and also your Honour Justice Toohey in Mabo [No 2] seemed to come to the same view as to the law, at least in Canada, and that is at pages 91 to 93, 193 to 195 and 202 to 203. Your Honours, we say that where the grant is made pursuant to a statutory power, consent is not required and to that extent the cases cited in page 8 of the reply of Ben Ward, in note 16 on page 8 of the Commonwealth submissions and on pages 3 to 5 of the Northern Territory submissions we say establish that proposition and we do not disagree.

Your Honours, a second variation that we seek to make on page 3 of our written submissions in paragraph 3, starting at the second paragraph beginning “One way in which these differences can be analysed”. Your Honours, we suggest there that one means of explaining the differences between the recognition of customary Aboriginal law in various colonies is by using the rules in respect of the adoption of the common law and, in particular, whether it is reasonably applicable to the circumstance of the colony. Your Honours, we do not think that proposition can still be maintained. Your Honour, we are aware of some research not yet completed which would suggest that the law in Australia was not settled as at 1828 of the extent of recognition of customary law and in that circumstance the matter is not essential to our submission and it is best if we withdraw that proposition starting at “One way in which these differences can be analysed” to the end of that paragraph.

DAWSON J: Which proposition, Mr Solicitor?

MR SELWAY: Sorry. What we put, your Honour ‑ ‑ ‑

DAWSON J: Where is it?

MR SELWAY: Paragraph 3 on page 3, starting at one way in which these differences can be analysed and justified, and the proposition we put is that the differences between various jurisdictions can perhaps be explained by the extent to which the common law was applied in each of those jurisdictions, because of the conditions at settlement.

DAWSON J: But you now say that you want to withdraw the proposition that this was a settled colony?

MR SELWAY: No, your Honour. What we want to do is withdraw the proposition that that is a means of analysing the differences.

DAWSON J: I see.

MR SELWAY: Your Honours, the only final matter I should mention is that reference has been made in a number of submissions, including ours, to the decision of the Court of Appeal of British Colombia in Delgamuukw. It is our understanding that an appeal was instituted from that decision, but was not immediately pursued because negotiations between the parties were

ongoing. Our understanding is that those negotiations have fallen down and that appeal will probably be heard in the Supreme Court of Canada later this year. If it please the Court.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Bennett, I think it is probably not worth starting before 2.15 pm. Mr Sofronoff, can you give us an indication of how long you will expect to take in reply?

MR SOFRONOFF: Twenty minutes, perhaps twenty five minutes, your Honour.

BRENNAN CJ: Yes, and Sir Maurice?

SIR MAURICE: Something of the same order, your Honour.

BRENNAN CJ: Thank you. The Court will adjourn until 2.15 pm.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN CJ: Yes, Mr Bennett?

MR BENNETT: Your Honours, part of the art of conducting significant public interest litigation in this or any court is the selection of a good test case for the proposition and, on that basis, the plaintiffs are to be congratulated. The cases that come before your Honours today in one case involve 500 or more square miles of land which is only apparently used during certain seasons by pastoralists and another property which the lessee is never troubled to enter.

Now, this is not to suggest that special leave should be revoked or that these cases should be decided other than on their facts as, of course, they will be. There are, however, some considerations to be borne in mind when one deals with a case of this nature where the facts are of that type. The first is that one has to be assiduous, in our respectful submission, not to assume that the facts of the case are generally applicable for the purpose of deriving general principles. If, contrary to the submissions that have been made by those opposed to the appellants, it be held that it is relevant to see whether on the ground there is an actual inconsistency between two sets of rights, if one assumes that against us for the moment, then clearly, one can look at the particular facts of these particular leases, but if one is asking whether the word “lease” in the legislation is a word which was intended to confer a right of exclusive occupation, one should not start with the proposition that all pastoral leases are like the ones before your Honours in this case.

The second general comment is that, as your Honours have been told, State and Territory legislation and forms of leases differ. We have handed to your Honours, like everyone else, a vast volume of relevant provisions and your Honours will see that, but there is only one aspect of that to which I wish to take the Court by way of indication of one area in which it is necessary to take care how the principle is expressed. That concerns reservations or exceptions preserving traditional Aboriginal land rights. If your Honours have our written submission volume your Honours will see in appendix 2 on the first page something which the draftsman has apparently attempted to describe as both a reservation and an exception. Your Honours will see that that provides that:

out of the said demise......for and on account of the present Aboriginal inhabitants of the Province and their descendants during the continuance of this demise full and free right of ingress -

et cetera, and then at the end appear these words:

in such manner as they would have been entitled to do if this demise had not been made.

Now, that is the nearest thing one is going to see, or that we have seen, in any State or Territory to a draftsman anticipating, or almost anticipating, or appearing to anticipate, the decision in Mabo [No 2], because what is said there, of course, is that there were such rights, there was an entitlement, this demise has destroyed it and, therefore, this reservation is being inserted to provide a substitute form of rights.

Your Honours are not concerned with that in this case, but we do ask your Honours to bear in mind if reference is made to the possibility of exceptions or reservations of this type, to appreciate that they can have two totally opposite consequences. One might in relation to one wording of a true exception say that it is an acknowledgment that native title is not destroyed by the grant. One might in another case, such as this one, we would submit, in an appropriate case, say that it is the clearest possible demonstration that native title was destroyed or extinguished by the grant. So one does need to bear in mind that such clauses can have either effect.

There are five short matters which have been referred to in the course of argument in the last few days on which we would wish to make one or two submissions. The first is Sir Maurice Byers’ submission about the problem of reconciling the two systems of law. The second is Mr Sofronoff’s submission that native title can co-exist physically with a pastoral lease. The third is Mr Doyle’s submission that it can co-exist temporarily by operating at different times. The fourth is Mr Sofronoff’s submission that a pastoral lease is not a lease, which was picked up by a number of other counsel, and the fifth is the submission by Mr Sofronoff that the reversion is of the radical title alone.

I just want to say a few very brief words on each of those. On the first one, the question of the systems, it must be appreciated, first of all, that the logical consequence of Sir Maurice’s submission is that even the grant by the Crown of a fee simple does not destroy native title, and Sir Maurice at page 49 point 15 of the transcript expressly said that in answer to a question your Honour Justice Toohey asked him. That, we would submit, is quite contrary to what was said by virtually the whole Court in Mabo.

What that argument does point up, however, is another way of looking at the problem. If one says the true doctrine of Mabo [No 2] is that under the settled Land Act an existing system of law, or at least real property law, continues until displaced, and the titles are titles which exist under that system and it is the system which is extended recognition by the common law.

When one talks about extinguishment, one may be talking not so much about extinguishment of title as of partial withdrawal of recognition from the other system of law. In other words, what one is doing when one extinguishes by granting an inconsistent interest, is not so much take an existing title or right and extinguish it, as take an existing system of law which was otherwise recognised in relation to that property, and withdraw that recognition in relation to that property. If that is the correct way of looking at it, and it is one of the four ways in which the Solicitor‑General for the Commonwealth put it at the beginning of his submissions, it has some consequences for the other arguments put to your Honours. One of those consequences is that the argument that it is what is done on the ground which matters, rather than what is done in Brisbane, is that the pastoralist who decides to exercise his or her rights by excluding Aboriginals on the property, is really creating delegated legislation because if that is the correct way of looking at it, what the pastoralist is doing is saying, “I am, by my act, repealing or removing recognition from, part of a pre‑existing system of law”. In our respectful submission, that cannot be right. It is another reason why one can only look to the act of granting the lease, not to what is done under it.

We do stress, however that the four alternatives put by the Solicitor‑General are genuine alternatives. They are different ways of getting to the same result and, if any of them succeed, the argument ultimately succeeds.

MR BENNETT: We do stress however that the four alternatives put by the Solicitor-General are genuine alternatives; they are different ways of getting to the same result, and if any of them succeed the argument ultimately succeeds.

TOOHEY J: Mr Bennett, I just have some problems with this notion of “on the ground”. I understand the sense in which you are using it, the actual exercise of rights, and you contrasted that with the document itself, but it seems to me there is something in between in the sense that the document may, in a general way, demise the land to the lessee and carry with it certain rights that are spelt out, but - I am probably not going to put this very clearly - is it necessary to contrast the terms of the document with what is done on the ground or rather does one look at what, under the terms of the lease, the lessee may do and, as it were, that spells out the parameters of what the lessee can do under the lease and, to that extent, what is left on one argument might be native title impaired, but otherwise surviving?

MR BENNETT: Your Honour, leaving aside that last conclusion, we would agree with what your Honour has just put to me, that the issue is what are the rights of the lessee and are those rights inconsistent or not inconsistent, and the rights at the next step of the argument is, of course, our exclusive possession.

TOOHEY J: Yes. It is a bit difficult to work out the implications of it, for instance, if one takes the terms of the lease for the purpose of pasturing cattle, well does that mean that the entire holding may be used for that purpose and therefore, on that argument, there is nothing left under native title, at least by way of occupation; it may leave something in terms of entry for particular purposes.

MR BENNETT: Yes, your Honour, I was going to come to that. That was the fourth section but I will deal with it now.

TOOHEY J: You can deal with it as you wish.

MR BENNETT: No, I will deal with it now, your Honour. We submit that for all the reasons that have been given it is a lease with exclusive possession, and that is what one would expect because one would expect that the pastoralist would have the ability if he or she chooses to use all or any part of the holding for pasturage. Certainly in the case of particular large holdings the pastoralist may not need to do that, but the reason the pastoralist is given a large area presumably is that the whole of it was seen as land which the pastoralist might wish to use for it. The pastoralist is given the right to go onto any part of it, to clear it and put up pasture and put cattle on the paddocks thereby created, to irrigate and so on.

One cannot say that right is only as to some part even if in practice it is only exercised as to some part. The grantor has chosen to say you may have the whole for pastoral purposes. The exercise of the pastoral purposes over any part almost certainly does necessitate a right of exclusive occupation.

TOOHEY J: Well, it may or it may not. It may in terms of permanent habitation. Whether it does in terms of temporary entry onto land for hunting, ceremonial or like purposes may be a different question.

MR BENNETT: Your Honour, that may depend, of course, on whether trees are cleared to allow pasturage to take place in a particular area. There is also the problem that your Honour identified in a question your Honour asked yesterday in relation to the fact that in probability, it is going to be the same piece of land that both groups want; the bit around the waterhole or the bit around the best waterhole.

TOOHEY J: Yes, I was trying to get away from, as it were, the illustration of what might happen as opposed to what is capable of being done under the terms of the lease.

MR BENNETT: Well, your Honour, once there is a right to use any particular square metre of that land to put a cow on, in a sense, that must be inconsistent with the occupation by anyone else.

TOOHEY J: I drew a distinction in the question I put to you between occupation on a permanent footing and perhaps occupation for some more limited purpose and my next question was to be: on your argument, do the terms of the lease leave any rights in the holders of native title to enter upon the land for any purpose.

BRENNAN CJ: It is hard to see how it can, your Honour, when at any point one has the right to do anything one wishes consistent with the pastoral purposes which would include, for example, building a barn. It is hard to see how building a barn could be consistent with any other use of the land on which the barn stands and one can give other examples. Your Honour, there are some other aspects of the leases which are significant. One is the specific exclusions and your Honours will recall there was some discussion about timber getters and other people, gold miners and people of that sort.

We would simply say that the very fact that it was necessary to make exclusions in relation to people in those categories rather supports the idea that it was a grant of exclusive possession. Both the Queensland and Northern Territory leases use the words “to have and to hold”. Paragraph 6a of Coke on Littleton gives the meaning of those words in the habendum to a conveyance as being:

to have an estate of inheritance and to hold the same of some Lord.
In the context of a lease, no doubt, one must insert corresponding words but the fact that those words are used, “to have” whatever the leasehold interest is, no doubt, and “to hold” no doubt from the landlord, is, in our respectful submission, a fairly clear indication that what is being granted is rights under the feudal system rather than merely special statutory rights.

The other point, of course, is this: your Honours have been addressed and I will not repeat it about the importance of the word “lease”. In Radaich v Smith, as your Honours know, the court held that one can describe something as a licence but it can rarely be a lease and, of course, the converse can occur. It is one thing to do that with a private document; it is another to do that with a statute. Your Honours have been reminded of the statement of your Honour Justice Kirby in McPherson’s Case but may I also remind your Honours of what your Honour the Chief Justice said in American Dairy Queen v Blue Rio (1981) 147 CLR 677. It is a short passage. Your Honours need not go to it. I will read it. But your Honour there said at page 686:

By adopting the terminology of leasehold interests, the Parliament must be taken to have intended that the interests of a lessee, transferee, mortgagee or sublessee are those of a lessee, transferee, mortgagee or sublessee at common law, modified by the relevant provisions of the Act. The incidents of those interests are the incidents of corresponding interests at common law modified by the relevant provisions of the Act.

That concerned the Queensland Land Act. In my respectful submission, your Honour’s remarks in your Honour’s concurring judgment in that case are apposite to the use of the word “lease” here. We would submit that all the matters that have been referred to, the word “demise”, the other pieces of language and so on, show that this is a case where what has been done is to adopt the common law concept.

Now, it is true that there are cases where the word “lease” is used, even in statutes, and does not mean a lease. One very obvious example is a mining lease. Your Honours were referred by Mr Bartlett to a case called Berkheiser v Berkheiser 7 DLR (2d) 721 but that was a case about minerals and, indeed, the court held there that one of the reasons why it was not a lease was that it is normally inconsistent with the idea of a lease that it is given to you for the purpose of destroying that which is leased. The statement was:

The word “lease” in its ordinary meaning implies in relation to land the possession of an indestructible substance.....For oil or gas, livery would seem to be out of the question -

and so on. What was also said by Justice Rand in the same passage at page 725 was:

although at common law the lessee for years held the seisin or possession for the freeholder.

And, that, perhaps, is something that has to be borne in mind in considering the nature of a lease in this type of case. We would submit cases where lease is used in relation to minerals are really cases where there is a special and, perhaps, inaccurate meaning of the word “lease”. It is a subsidiary meaning the word has come to have in relation to minerals. The phrase “perpetual lease” may be in the same category. That is something not known to the common law. It is a hybrid of two ideas and one can well understand that, strictly, the word “lease” is inappropriate. Those example, we would submit, are a long way from the pastoral leases involved in this case where there is every reason why the pastoralist would have been given exclusive possession. Exclusive possession is required over whichever part, even a small part, it is desired to exercise the powers given to him or her. That is the fourth of the points.

The second was Mr Sofronoff’s submission about native title being capable of co-existing physically, and we simply stress that throughout the judgment of your Honour the Chief Justice in Mabo there is reference to rights and the extinguishment is of rights and the inconsistency is with rights. Evidence was led, if I can use that phrase, by my learned friend, Mr Sofronoff, from Hansard in Queensland about a witness who was the protector from the northern district who gave evidence about how many Aboriginals there were who lived on stations at the time, apparently with the consent and co-operation of the pastoralists. That, really, proves something the other way. All that demonstrates is that there were very good reasons why many pastoralists did not choose to exercise the right given to them. There were all sorts of reasons for that. It may be a source of labour was one, it may be that keeping wild animals that would interfere with the cattle down, was one, it may even be that altruism in some cases was a factor. One does not know, but there are many reasons why a person may not choose to exercise rights and, indeed, there are many reasons why one might wish to give a person rights. Notwithstanding that, one expects that in most cases the person will not exercise those rights.

Everyone charged with an offence has the right to plead not guilty, but it is said many times that if everyone charged with an offence pleaded not guilty the criminal law of this country would grind to a halt. There are many situations where rights are given and it is assumed that everyone will not exercise them because if everyone exercised them one would have chaos. But that does not mean that it was not intended to grant the rights and, in our respectful submission, when one looks at the purpose of the leases the right to exclusive possession was intended to be part of it. My learned friend, Mr Doyle, made a submission about native title being suspended. That was referred to in another context by your Honour the Chief Justice in Mabo at page 60.2 where, in the context of surrender or abandonment, your Honour said that it could not be revived. That is, of course, is in the context of surrender or abandonment

In the context of leases and grants the word used was “extinguish” and the use of that word, we would submit, indicates fairly clearly that it was not intended that they would be suspended. In any event, the logic of each of the four propositions put by the Solicitor-General for the Commonwealth as the four ways in which one says that the granting of the lease has the relevant effect, the logic of each of those four is inconsistent with a temporary suspension, and I will not go through the four in detail.

The final point is the issue of reversion, and we simply remind your Honours of the very clear statements by your Honour the Chief Justice at pages 68 and 73. In each case, it is made clear that the reversion

expectant is something greater than the radical title which existed before and that, logically, must follow. In particular, it must follow if one takes the approach I referred to earlier of looking at the problem as one between systems of law rather than one involving title.

A radical title, of course, is not really a title. It is a power to deal with land which no one else owns. The argument which I understand to be put against us is that all that reverts at the end of a lease where one starts with the radical title is the radical title, and if the radical title is encumbered, so is what one gets back. The answer to that, we would submit, lies in the nature of what is granted and what necessarily flows as the reversion from its granting, and that is precisely the point made by the Chief Justice at the two passages I have referred to.

There is one final miscellaneous matter I wanted to put to the Court and that was this. A number of our learned friends referred to a recent decision in Canada in a case called Delgamuukw. Your Honours should be aware that leave to appeal to the Supreme Court of Canada has been granted in that case and we understand it is likely to be heard around the middle of next year and it is being treated, as we understand it, as a case of some importance in Canada. The reference to the grant of leave is (1994) 109 DLR (4d) 7 .

We would submit, if it became necessary to do so as we have said in our submissions, that it is a case which depends largely on the Indian Acts in Canada and it is not of general application, but we would add to that that your Honours would, in our respectful submission, be cautious in relation to applying a Canadian decision where that decision is about to be considered in detail in what is obviously going to be a leading case in Canada in about 12 months time. May it please the Court.

BRENNAN CJ: Thank you, Mr Bennett. Mr Sofronoff.

MR SOFRONOFF: Your Honours, I have reduced to writing notes of my submissions which I hand up, as well as a few pages from Dr Fry’s book that your Honour the Chief Justice referred to yesterday. Your Honours, as we understand the thrust of the submissions made against us, it is that the acceptance of our contentions would involve a fracturing of the skeletal structure of Australian land law, or a rending of the fabric of the law in that regard.

In our submission, there are two approaches open to the Court which do not involve any fracturing of long held propositions and do not involve any inconsistency with land law as we recognised it before Mabo and have recognised it since Mabo, and the two alternative approaches are, firstly, to recognise that the system of tenures which exist in Queensland have a statutory origin, and the second is that whether that is given any prominence or not, the system of tenures does not require a conclusion that the grant of a lease by the Crown over formerly unalienated Crown land involves the taking by the Crown of full beneficial ownership. Instead, in our submission, the doctrine of tenures requires merely that the Crown takes to itself a sufficient interest to grant the lease that it proposes to grant which, in our submission, is a sufficient interest to represent such a lease and an instant longer.

Could I take your Honours to the pages of Fry that I have handed up. Your Honours have access to a book. The map that is the second photocopy page is in colour in the book and it shows the extent of alienation by the Crown in, I think it was, 1945 or 1946. Although the colour map in the book gives a clearer indication, I can tell your Honours that the portion right at the top of Cape York in white and the other irregularly shaped portions underneath it in white are what remained of unalienated Crown land in Queensland at the date that the author was writing.

Everything else had at some stage been the subject of some form of tenure including freehold tenure. The strip along the coast, particularly around Brisbane, that your Honours can see is of a darker shade is under freehold tenure. The rest of the west and the north of the State other than the white parts were under some form of pastoral tenure. We notice that in some of the material filed on behalf of the interveners, it is said that some parts of the State of Western Australia, for example, which are or had been under pastoral lease constitute some 90 per cent or 80 per cent or some large percentage of that State. So the consequence of the decision in this case is really to determine whether or not native title having been recognised in Mabo is to have any practical effect in this country or to constitute no more than a theoretical recognition.

Your Honours, our primary purpose in photocopying some of the pages of Dr Fry’s book is to make the submission that in his book, his closely typed analysis of how our current land law came to this country at least as far as Queensland is concerned, he makes the point repeatedly that the doctrine of tenure had already gained to some extent a fictional complexion in England and ought to be regarded appropriately in this country given the statutory origins of all our tenures, or at least in Queensland.

On the third photocopy page is the beginning of Chapter I, and I have put it there fore the sake of completeness, but the passage I wish to take your Honours to is on page 2 of the book, which is the next photocopy page. The last paragraph on that page reads - I will read it because the photocopy is not very good:
Nevertheless, the modern constitutional doctrines which give to Parliament and the Crown practically unlimited political power over all branches of the law, make it unnecessary to resort to feudal doctrines in order to establish the fact that in Australia no land is held, or ever was held, by any private individual except as the result of a Crown grant, lease, or licence, and upon such conditions and for such periods as the Crown (either of its own motion or at the discretion of Parliament) is or was prepared to concede. The constitutional supremacy of Parliament and the Crown over Australian lands, as much as the feudal doctrines of the Common Law, is the origin of most of the incidents attached to Australian land tenures.

He refers to a case. Over the page, on page 3 he pursues this view by citing a passage from part of Maitland’s work where Maitland made the observation that although on the one hand the first thing a law student learns is that nobody in England owns any land absolutely, and it is necessary to accept that to understand land law, the immediate next thing that it is necessary to learn is that that is not really true, and that the form of tenure held by persons holding freehold, at least, is very much the equivalent of full ownership. The author then says in respect of Australian land law in the next paragraph about five lines down after the semicolon:

and, furthermore, his statement, that the claims of the community on land do not depend for their efficacy upon the feudal doctrine that paramount title to all land belongs to the Crown, is applicable even to Australian land held of the Crown on one of the Crown leasehold or licence tenures. It is, of course, not true that a Crown tenant who leases land from the Crown for a term of years, whether one year or thirty years, is absolute owner of it, either in theory or in substance, but it is true that the limitations on his ownership of it, and the claims of the community on it, could be enforced against him by the appropriate governmental instrumentalities even if there were no rule that paramount title to it belonged to the Crown.

If your Honours would then turn over the page. In the last paragraph on page 19 of the book he observed that in England landlords premised upon a lost grant and the common law fills the void created by the lost grant to inform what are the incidents of tenure that would otherwise be, one would expect, contained in the grant, but that in Australia we do not suffer under the disability of not having an actual grant, and one can go to the actual grant in most cases, and certainly to the statute under which the grant was made to determine precisely, in each case, what the relevant incidents of the particular form of tenure might be.

On the next page, which is the beginning of Chapter VI, and is page 25 of the book, he makes the point in the second‑half of the third paragraph, he observes as my learned friend, Mr Griffith observed, that the position in Australia was that many, many different forms of tenure came to be invented. After making some observations in the next succeeding pages that I have not photocopied, on paragraph 29 in the second‑last and last paragraph he draws the observation that Australian land law, giving the multiplicity of tenures, is no longer simple.

The last page that I want to mention is the diagram on the next page which sets out some of the - perhaps all- of the tenures at least as classes, that Dr Fry refers to in his work. The learned Solicitor‑General for the Commonwealth said earlier today that there are some 70 tenures created that their side had counted. In our submission, that demonstrates a preparedness on the part of Parliament to create entirely new forms of tenure useful for this country, and so it cannot be assumed, or at least one cannot begin with the assumption that we are confined to old common law forms rather than that the true position be that new tenures were adopted and adapted to fit particular circumstances that arose from time to time.

KIRBY J: But does that have the corollary, rather worrying, that all such 70 tenures are subject to the Mabo native rights?

MR SOFRONOFF: Your Honour, Mabo decided that native title rights will continue so long as there is not an inconsistent Crown grant and so it depends upon the Crown grant.

KIRBY J: So that would mean that in every one of the 70 varieties you would have to go in each one and look at the incidence of the Crown grant, even fee simple?

MR SOFRONOFF: Fee simple, your Honour, differs entirely from a lease in this respect, that it involves of its essence an unconditional assertion forever of a right of dominion in the holder of the fee simple.

DAWSON J: What is the word you place emphasis on, “forever”?

MR SOFRONOFF: No, your Honour; the two words are “unconditional” and “forever”. Your Honours, we go on ‑ ‑ ‑

KIRBY J: So that leaves only 79 that are subject?

MR SOFRONOFF: 69 I think, on my learned friend’s counting. Your Honour, we do not shrink at all from the ‑ ‑ ‑

KIRBY J: That leads to a great instability in an area of the law which has always treasured certainty and stability.

MR SOFRONOFF: Your Honour, in our submission, it does not lead to either instability, with respect, or uncertainty of the kind that is advanced against us. The submission that we continually hear is that any assertion of right on the part of native title holders would lead to either uncertainty or unworkability, and both those things, in our submission, serve to identify the proposition that there is only one suitable outcome to this case, or to Mabo when it was argued, and that is for the convenience now, whatever regret might be expressed for earlier misdeeds, it is necessary, either in theory or in practicality, to deny the existence of any rights that might later be litigated.

There is no other area of law, in our submission, where courts are exhorted to make a finding on the basis that a blanket rule will prevent any further litigation whatsoever arising which is, in our submission, the nature of the submissions against us in this case. In many decisions of courts of this country, in many decisions of this Court, academic critics have said the final ratio leads to uncertainty in this area or that area. What the Court is called upon to do, in our submission, is to determine a principle, and the principle will no doubt later be applied in many disputes between people, and it is part of the function of the common law and it is certainly the function of the courts, in our submission, to determine those disputes and not by some overwhelming principle of denial to foreclose any possible dispute ever arising in the future.

So it is true that success for the appellants in this case will leave the question open and we do not shrink from that conclusion. We point to that being the position in many cases, particularly in this Court, where principles are laid down that are later to be applied in continuing disputes between people where that principle is applicable.

TOOHEY J: Mr Sofronoff, what you have just been saying prompts me to ask you some questions about the amended notice of appeal, but I do not want to ask you those questions at the moment if it is going to interrupt the flow of your argument.

MR SOFRONOFF: I am happy for your Honour to ask me, and if I cannot answer, I will think about it as I am moving and I will ‑ ‑ ‑

TOOHEY J: Well, it is germane to some of the submissions you have just been making. Could I just take you to your amended notice of appeal?

MR SOFRONOFF: Yes, I have it, your Honour.

TOOHEY J: The first question, really, is one of understanding or not, on my part, but if you go to the orders sought on page 7, under paragraph 3, you will see that certain questions are to be answered in a particular way. Question 1B(a) has been amended from “yes” to “no”, and I am a bit puzzled about that, unless I have misread something.

MR SOFRONOFF: Your Honour, the way the ‑ ‑ ‑

TOOHEY J: Perhaps you had better wait until I finish the question.

MR SOFRONOFF: I am sorry, your Honour.

TOOHEY J: I will explain my difficulty. Question 1B(a), which is on page 11, asks whether the pastoral lease is subject to a reservation in favour of the Wik Peoples. The answer sought to be given to that initially was “yes” and now it is “no”.

MR SOFRONOFF: Yes. The way the case was conceived and then conducted involved this argument - which has been abandoned - that the power of the State Parliament was limited, for reasons that do not matter at the moment, by an inability to legislate to extinguish native title.

TOOHEY J: Yes, I understand that and that is the subject of question 1A which is not before us.

MR SOFRONOFF: Which has been abandoned, and that was the foundation for the case for the appellants on the second question, because it was then argued that there being a lack of power to legislate to abolish native title, extinguish native title, it must follow that there was an implied reservation in their favour if the pastoral leases were to remain effective. The way we put the argument now is to say that the statute and the grant itself have to be construed in accordance with the principle that it is only if it is necessary to achieve the purposes of the Act that native title is taken to have been extinguished, and if the Court comes to the conclusion that that approach to construction is correct and that no necessity has been shown, then it is not a matter of a reservation in the lease. The lease takes effect in a fashion which is not inconsistent with a continued exercise of native title rights.

So we have adopted the approach, I hope not wrongly, of suggesting that the correct answer in those circumstances, given that that is the foundation of our case, is not that we invite the Court to say that there is a reservation in the lease in our favour, implied or of some other kind, but simply that a lease which otherwise confers exclusive possession, in so far as competing pastoralists are concerned and perhaps others, does not extinguish native title.

TOOHEY J: I can more readily understand you saying that question need not be answered rather than asking for a resounding “no”.

MR SOFRONOFF: I will reflect on that, your Honour, over the next few minutes and it may be that we would have been better advised, or at least my clients would have been better advised, to suggest an answer of the kind that your Honour just posed.

TOOHEY J: A similar problem arises in regard to question 1C(a). I take it your answer is the same there?

MR SOFRONOFF: It is the same, yes, your Honour.

TOOHEY J: Can I move from that to something a little wider. If the argument of the respondents is accepted, then the appeal is dismissed. I am not sure whether the respondents would seek any variation in any of the answers presently given or would simply be content with the answers as they were given by Mr Justice Drummond.

MR SOFRONOFF: I am sorry, did your Honour mean if the respondents succeed in the appeal?

TOOHEY J: Yes.

MR SOFRONOFF: Yes.

TOOHEY J: If the appellants were to succeed, the position is not by any means so simple because what you are in effect asking the Court to say is that what might be described as the incidents of native title survive the granting of these pastoral leases except to the extent that there is inconsistency between the grant and those incidents.

MR SOFRONOFF: Yes.

TOOHEY J: Are you asking the Court to be more specific than that?

MR SOFRONOFF: Your Honour, if I may just think for a moment.

TOOHEY J: I am asking you really in the context again of the suggested answers to the questions that appear in the amended notice of appeal.

MR SOFRONOFF: The reason I hesitated is that your Honour’s observations have prompted me to realise that one of our complaints in the case has been that it is inappropriate to draw a comparison between the lease on the one hand and native title on the other when one may know the nature of the lease but when one has not yet determined and defined the second thing in the comparison.

KIRBY J: But that is a reason for not agreeing to or opposing separate questions and determination of those questions in advance of the trial.

MR SOFRONOFF: Yes.

KIRBY J: It was preliminary, but was that opposed?

MR SOFRONOFF: Yes, your Honour, and one of the ‑ ‑ ‑

KIRBY J: But that is not under appeal to us?

MR SOFRONOFF: No, but, your Honour, one of the submissions that I understand was made to Justice Drummond was that ultimately he was not in a position to make final determination because of the absence of facts relating to native title and so this was not a construction question, it just did not look like a construction question and he ought not to answer it, because the answer would be useless given the many, many assumptions that would have to go into it, some of which might not be later made out.

TOOHEY J: Could I just pursue my question with you a little further?

MR SOFRONOFF: Yes, your Honour.

TOOHEY J: If, for instance, you take the answer to question 1B(d), where the question asked is:

did the grant of the Pastoral Lease necessarily extinguish all incidents of Aboriginal title -

the answer sought from the Court is “no”. Well, I understand that as a matter of language; it does not take the matter very far, does it, in itself? I do not want to take up too much time on this, but questions 4 and 5, for instance, ask whether:

May any of the claims.....in the Further Amended Statement of Claim -

I think we can put 4 and 5 to one side, because they involve the agreements and the enactments.

MR SOFRONOFF: Comalco matters. Your Honour, the position was that this was akin to a strike-out application and took the form of determination of preliminary questions of law, but in substance it was a striking-out of our claim of native title on the footing that if there was a pastoral lease there then that extinguished native title, and the question was framed, over our opposition, narrowly in circumstances where we submitted no such questions ought to be determined in advance of a trial. But ultimately they were set down and they were determined in a way in which a positive answer could only defeat us, but a negative answer would not advance our case. The reason is that, in substance, it was a strike-out application and, if the other side failed in their contention, we were left to battle on.

TOOHEY J: Is it the position that by the notice of appeal the Court is, in effect, being asked to do no more than to resolve the matter in the negative, as it were ‑ ‑ ‑

MR SOFRONOFF: Yes.

TOOHEY J: ‑ ‑ ‑ by saying perhaps no more than that title is not extinguished?

MR SOFRONOFF: Yes, your Honour. The answer is yes. It is a funny sort of case, your Honour, because ‑ ‑ ‑

TOOHEY J: Well, it might be a funny sort of answer.

MR SOFRONOFF: Your Honour, that is because it is a funny sort of case in this respect, at least, that we have undertaken not to pursue our native title claim in this litigation. That undertaking was requested at an early stage and given and so, although we can lose this case, we cannot win it because we cannot go on to prove our native title in the litigation because we have given an undertaking.

TOOHEY J: So it is really answers by way of declaratory - or perhaps it is not even by way of declaratory relief.

MR SOFRONOFF: No.

BRENNAN CJ: Your undertaking relates to proceedings under the Native Title Act, does it not?

MR SOFRONOFF: It is an undertaking not to pursue the claim for native title in this proceeding.

BRENNAN CJ: The claim under the Native Title Act?

MR SOFRONOFF: No, your Honour, not to claim a declaration in this proceeding that there is native title ‑ ‑ ‑

BRENNAN CJ: Yes.

MR SOFRONOFF: ‑ ‑ ‑ and on that footing, we proceeded under the Native Title Act and so, what I mentioned is that it is curious that having been in the position of a litigant with two proceedings dealing, in part, with the same subject matter, we would have been asked to elect between them and in substance we elected to go under the Act, but now we are faced with having to proceed to our detriment in this case.

TOOHEY J: So that if all your arguments found favour with the Court, that may well be reflected in what the Court had to say in its reasons, but effectively, in terms of any orders that the Court made by way of answers to questions, they would go no further than to say title was not extinguished by the grant of the pastoral lease.

MR SOFRONOFF: Yes, simply by the grant of the pastoral lease.

TOOHEY J: Yes, thank you.

MR SOFRONOFF: Your Honours, could I mention - could I go back to the notes of reply at page 2, in paragraph 4, having referred to those pages of Fry that I have taken your Honours to. We also refer to Davies v Littlejohn for this contention, that although in that case a specific form of interest was under consideration, it was a conditional purchase. Mr Justice Isaacs at the page reference that I have given made the observation that interests under the Land Act with which he was concerned are wholly statutory.

He went on upon that premise to consider the consequences in that case of the conditional purchase. In paragraph 5, we set out what we submit are all the necessary features of the estate that is created under the Act which requires no importation to fill it from the common law. That is not to say though that, say, the relief which equity gives against forfeiture is not available, as was decided in McPherson’s Case, or that the Crown does not owe an implied obligation to give quiet possession which would be necessarily implicit if any sense were to be made out of the grant that the Crown makes.

We seek to draw to the Court’s attention in paragraph 6, some differences between the forms of tenure created under the Land Act and what is generally understood at common law and, out of what is written there could I mention specifically the curiosity that estates can be converted. So, it is not a matter of a leaseholder purchasing the estate from the freeholder. There is statutory conversion of one form of tenure into another form of tenure under the Act.

So, in our submission, it is not a bold thing to ask the Court to do to consider that one has to look at the Act on its own terms and not from the a priori position that a lease of necessity involves any kind of lease under any circumstances involves the right to turn off those who might have had a prior interest or prior right in respect of the land demised. In paragraph 8 we make the observation that the statutory power to effect the forfeiture viewed solely as a statutory power is in substance no different from the statutory power to grant a lease over land in the first instance, and that no more than that original power to grant a lease over land should be exercised with the rights of native title holders in mind, nor does the power to effect the forfeiture come subject to an obligation to take into account the rights of others.

Those are our submissions in respect of the statutory approach, but if one puts that approach to one side, in our submission, as we say in our primary submissions, and as Dr Fry points out at great length in some parts of his book, one can have a whole series of splits in the ownership of the land constituted by the estates into which the common law slices the ownership and it is not necessary that the person in the position of the lessor have any greater an interest than is just sufficiently greater than the interest granted so as to constitute it a lease rather than an assignment of the interest. So, to argue from the proposition that the lessor, if it be the Crown, must first take a full beneficial ownership with a right to exclude persons because it comes with full rights of possession, and that it is from that interest that a lease is carved, in our submission, is to assume first the answer to the question in this case, “Does the pastoral lease confer a grant of exclusive possession?” Because, if it does, then some interest sufficient to support that right would have to exist, but if it does not, then the only interest that needs to pre-exist the grant of the lease is an interest sufficient to grant a pastoral lease which grants a right of possession to the lessee which does not include a right to turn off the holders of prior existing rights.

On page 4, your Honours, we address the question of construction of the Land Act given the decision of this Court in Mabo a few years ago. In our submission, the problem that has been raised by some of the respondents in this respect, particularly the Commonwealth, really raises a false dilemma because the question for the Court is one of construction. The words of the Act are the same words as they existed in 1910 and 1962 and the principle of construction is exactly the same. Relevantly it is that pre‑existing rights are not taken to be destroyed unless the statute shows a clear and plain intention to do so. The only difference now is that we know that which a court in 1910 would not have known, that there is such a pre‑existing right. This Court is now invited to apply that uncontroversial principle of construction to the Act and to do so in recognition now that there is such a pre‑existing right.

In paragraph 17, we just furnish a little bit of information that your Honour Justice Gummow inquired after a little while ago about obligations of occupation contained in some forms of tenure and not others, and we provide the information in those two paragraphs. We make a correction in paragraph 19 in relation to what is the nature of the native title right asserted. We do not assert the existence of any right to exclude others from the land.

BRENNAN CJ: Do these pastoral leases confer a right of renewal?

MR SOFRONOFF: No, your Honour. There is a section which permits a lessee to apply for a new lease.

BRENNAN CJ: In priority?

MR SOFRONOFF: Yes. I think there is some priority, your Honour.

GUMMOW J: Mr Sofronoff, this is the sort of thing, if I may say so, we should have been told about last Tuesday.

MR SOFRONOFF: Which thing, your Honour?

GUMMOW J: An analysis of the provisions of the statute.

MR SOFRONOFF: I am sorry, your Honour, that your Honour should make that observation. Could I say this, that the case was prepared on our side, and certainly on the other side, in joinder of the issue that we thought existed, and that over the course of the debate - and we submit that it is one of the virtues of argument - some things are exposed for the first time and we have done our best to give your Honours the benefit of what has arisen during the course of oral argument.

Your Honours, in the appendices to the outline of argument that we filed with the Court, volume 2, there are a couple of appendices which seek to describe in tabular form a comparison between rights granted under the statute. Appendix 10, which I will not take your Honours through, tries to illustrate in a tabular form the differences between some of the various forms of pastoral tenure in the Act, and appendix 9 lists in chronological form some of the qualifications to the right of possession from the Act.

BRENNAN CJ: Mr Sofronoff, could I take you to the third page of appendix 10 and the first line on that page, “May be converted to another tenure”. Let me add to that an assumption in the light of your response of some kind of right to apply in priority for renewals. If your argument be right, whence is the interest to be derived which would support the grant of another tenure or the grant of a term in renewal?

MR SOFRONOFF: Whence does the interest of the Crown ‑ ‑ ‑?

BRENNAN CJ: Well, is it the interest of the Crown?

MR SOFRONOFF: Your Honour, we would submit the statute gives the Crown a power to grant such a lease and gives the lessee an entitlement to apply for such a lease.

BRENNAN CJ: And so, if there is an application for conversion or for renewal, then it is simply a question of a statutory power conferred on the Crown to grant the new tenure or the renewed term?

MR SOFRONOFF: Yes.

BRENNAN CJ: That would be an executive power and on your argument, I take it, would have to be exercised having regard to the proprietary interests of the native title holder?

MR SOFRONOFF: No, we do not make that submission, your Honour.

BRENNAN CJ: Why not?

MR SOFRONOFF: Because, just as the primary first power to grant a lease, we do not submit is a power that has to be exercised, taking into account the interests of the native title holders upon the assumption that their rights might be impaired by the grant of the lease. Equally, the second and third powers do not have to be applied in that fashion. When Mabo said that the Crown can, by inconsistent grant, extinguish or impair native title, there was no suggestion that in doing that the Crown was hampered by any requirement to take into account the interests of native title holders, subject to one thing, the observations of Justice Toohey in relation to fiduciary duty and matters of that kind, but in any discussion of your Honour’s reasons and the reasons agreed on by two other members of the Court, we would submit that the extinguishment of native title by inconsistent grant does not require such a consideration.

BRENNAN CJ: Then, does it follow that the operation of the Racial Discrimination Act post-1975 is to invalidate, on your argument, the provisions for renewal or for conversion, because it would amount, would it not, to the extinguishment of native title, whereas another title could not be thus affected?

MR SOFRONOFF: But for the provisions of the Native Title Act, yes. The power lies and has been exercised by the Commonwealth Parliament to relevantly amend the Racial Discrimination Act if it wishes to, to permit pastoral leases to be granted. If freed of that restraint, the States would be entitled to do what they say they have been doing for years without compensation. The Native Title Act has provision in it governing the grant and the renewal of pastoral leases.

BRENNAN CJ: Yes. Thank you.

MR SOFRONOFF: In due course, does your Honour want a note of the provisions of the Native Title Act in that respect?

BRENNAN CJ: No, I think that is familiar enough to us. I would be advantaged, and perhaps other members of the Court would also, by having references to sections of the 1910 and 1962 Acts which relate to surrender, conversions or renewals as applied to pastoral leases.

MR SOFRONOFF: Yes, we will do that, your Honour. Thank you, your Honours.

BRENNAN CJ: Thank you, Mr Sofronoff. Sir Maurice.

SIR MAURICE: Your Honours, so far as the 1910 Act is concerned, there is a provision about surrender - that is section 122. I do not think it is necessary to read it to your Honours, but it allows a lessee to surrender upon paying all the rent - I think that is not an exact - but it is section 122. At some stage or other, and I will say these to get them out of the way, during the course of argument there was a reference to fee simple. I think your Honour the Chief Justice. The sections in the 1910 Act are sections 98, 100, 103, 106 and 108, which seem to envisage that there can be such a grant.

What I would seek to do in the time that is now left to me, is first of all to remind your Honours - perhaps remind is not the exact word, but to refer to one sentence in the case of Delgamuukw to which several of my learned friends have warned your Honours against. The passage which I am reading is really directed to this question which all my friends have argued and they have all said extinction requires no more than the piece of paper being issued, whether it is a grant or a lease or whatever, no more. The passage in the Canadian case is as follows - it is at page 525 and it is said:

Whether the intention to extinguish an aboriginal right is clear and plain must of necessity depend upon the nature of the Indian interest affected by the grant, and the nature of the grant itself.

It is 104 DLR 470. Your Honour, that is all I wanted to say about the Canadian case, but I refer your Honours to that only to show that what my friends have been saying, and all my friends have been saying on the other side, is not supported by any authority and not only is it, as we respectfully submit, against reason, it is against justice as well.

There is another point I wish briefly to mention before I come to the main thing I wanted to make submissions about, and can I just tell your Honours what I want to make submissions about. What I want to make submissions about is section 6(2), because, embedded in my friends’ arguments is an assumption about section 6(2) and a number of assumptions about what the law of property of Queensland is so far as interesse termini, entry, and so on, were at the time these leases were issued over the Mitchellton area. Now, I will come to that in a second.

So far as the question whether the lease grants exclusive possession, I have made my submissions, and your Honours have heard the responses, and your Honours know what I intended to say, and I am not going to repeat it. If your Honours go, as I suggest your Honours will, to a decision of the House of Lords in Mason v Clarke in (1955) AC in which a man - the landlord granted a lease and then he granted a right to a rabbit catcher. Now I am prompted to refer to this from something that fell from Western Australia and that was a reference to a profit a prendre because the House of Lords said that the right of the rabbit catcher was a profit a prendre and the passage I am referring to is only directed to the point that the Court is familiar with the adjustment of rights between people each possessing rights, and at page 796 Viscount Simonds says, about 10 lines down the page, after referring to horses and race horses, because there was built on this farming property a racing stable. He said:

He had acquired a right -

he is referring to the rabbit catcher -

which was a profit a prendre, an incorporeal hereditament, which he was entitled to protect from injury either from his grantor or any third party. Since his rights were in respect of the farm land, he could complain of no act on the part of the grantor which could be considered the ordinary, natural and reasonable use of the farm land. But the conversion of 12 acres into racing stables -

it is easy to see His Lordship is not an Australian -

and the erection of numerous buildings, was not such use, and he was therefore entitled to recover damages. For, as Scrutton L.J. said,
“ both landlord and sporting “tenant must use their land reasonably having regard to the “interest of the other, and will be liable for damage caused to the “other by extraordinary, non-natural, or unreasonable action.”

The reason why we quote that is not only that rights analogous to profit a prendre exist notwithstanding a grant of exclusive possession which that case establishes and which is obvious enough but where you do have a right analogous to exclusive possession, each possessor of the granted rights according to the normal working of the common law must accommodate his right to the right of the other and therefore, we would say, even if these pastoral leases were considered to grant to the pastoralist a right of exclusive possession for the purpose of running his cattle, that right had to be accommodated to the right recognised by the native title which in turn was recognised by the common law, although the native title was a right foreign to the common law. That is all I want to say about that.

BRENNAN CJ: Sir Maurice, that rather begs the question, does it not? The question is whether or not the rights are themselves inconsistent. If they are inconsistent, that is the end of the matter. If they are not inconsistent, then there is the adjustment and that really raises the question whether the rights here are inconsistent or whether they are consistent in some manner.

SIR MAURICE: Your Honour, can I deal with what your Honour put to me? Your Honour will, I am sure, excuse me if I do not assent to the first proposition whether the rights are inconsistent and I have already endeavoured to explain that.

BRENNAN CJ: Yes.

SIR MAURICE: I am not going to do that again. Your Honours, we would say the rights are not inconsistent because all that the pastoralist got was the right to run his cattle on 535 square miles. No specific portion was allotted to him. It was known there were natives there, as the letter of the Protector quoted by the learned judge indicates, and so that what one had was an enormous area of land subject to a right to agist cattle.

DAWSON J: Well, that is begging the question - I mean, the question is whether he got exclusive possession.

SIR MAURICE: Your Honour, I know that is one way of looking at it but ‑ ‑ ‑

DAWSON J: It may be the only way of looking at it.

SIR MAURICE: We would submit, with respect, your Honour, that it is not the only way of looking at it, that merely to say that the lease granted exclusive possession does not mean - if you just confine yourself to the lease only, and your Honour will appreciate that what I am submitting to your Honour on this part is really only looking to the lease and saying whether that lease granted a right to exclusive possession or not did not affect rights otherwise recognised by the common law. Now I do not want to repeat that, but, in any event, the right to exclusive possession was to run the cattle. His right to exclusive possession was not to build a luxury hotel. He could exclude people if he was building a luxury hotel. His right was ‑ ‑ ‑

DAWSON J: Well that is an odd view of exclusive possession, only to be able to exclude when it was for the purposes of running cattle, that is what you are saying, and that is not exclusive possession.

SIR MAURICE: Well that is why it does not give exclusive possession. That is what I have been saying.

DAWSON J: If you say that, then it follows. That is the question.

SIR MAURICE: Your Honour, that enables me easily to answer your Honour, but not I am sure to your Honour’s satisfaction. But however that may be, I do not want to go through all that again, but your Honour has understood that I am saying he is right to exclusive possession if he has one, only feeds his right to run his cattle, and I will not say that again, your Honour, and your Honour knows.

Your Honour, can I go now to section 6(2) again, because all my friends really say - they say it often silently - that the grant of the lease - the Commonwealth says this explicitly - created a reversion, but the passage in Coke on Littleton shows that that is not the case; that it is entry that gives rise to the reversion, and absent entry, no reversion, and there was no entry, so there was no reversion. So therefore one must look to section 6(2) and see what is it doing. Now I have already made my submissions to your Honours, and your Honours see there are three parts of it, but can I just separate them out? Can I just take the words about lease:

The.....lease shall be made subject to such reservations and conditions as are authorised or prescribed by this Act or any other Act, and shall be made in the prescribed form, and being so made shall be valid and effectual to convey to.....the person therein named the land therein described for the interest therein stated.

The other arm of it is talking about the fee simple:

The grant.....shall be made -

and so on, and I will not take your Honours to it, but your Honour sees:

The grant.....shall be made subject to such reservations -

and so on and so on -

shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate.....therein stated.

Now, that is what it does, and what it is talking about is not possession, but title. It says, and your Honours will remember my submissions from which I retract no whit, that I put to your Honours in-chief, that what it says is:

shall be effectual to convey.....and vest in the person -

concerned -

the land.....for the estate or interest -

title. Now you can have title to a lease of land, without having possession, and if you have the title and you have not made an entry, there is no reversion and no possession.

GUMMOW J: None at the common law, Sir Maurice, but I think the argument against you is, which you partly adopt really is, that this is a special statutory regime which may not have this particular common law requirement of entry.

SIR MAURICE: Yes, your Honour, but the only way my learned friends say it has not got the particular common law right of entry is to say section 6(2) abolishes it, that is what they are saying and, indeed, I think that was put to me when I was in-chief, but that is what they have been saying all the time. What I respectfully submit is that there is nothing in section 6(2) which changes the common law - we are talking about leasehold interest - so far as leasehold interests are concerned and the necessity for entry, and it ‑ ‑ ‑

BRENNAN CJ: Sir Maurice, may it not be that at common law, the reason why it is said that the reversion arises only upon entry is that it is only upon entry that the title of a lessee is complete and if that is the situation, then obviously the necessity for reversion does not arise until that point, because until that point, the lessee does not have possession; the “about to be reversion owner” has possession.

SIR MAURICE: The reversioner need have no possession, and this reversioner did not have possession. The Crown did not have possession of the land. It may have had title but it did not have possession. Your Honour, if one is talking about the leasehold interest that this Act is talking about, it is an extraordinary thing to say that it abolished all the common law, totally abolished it. When one looks, for example, at the way Western Australia approached it, what it did was that they said - this is their Government Gazette of 1864. They said - it is quite different:

and such conveyance or alienation being so made shall be valid and effectual in the law to transfer to and to vest in possession in such purchaser or purchasers any such lands as aforesaid.

What I am saying is this is a totally different approach. Could I hand copies of - part of the Property Law up to your Honours.

McHUGH J: But, Sir Maurice, even at common law if the lease was made by bargain or sale or by any other conveyance operating under the Statute of Uses, the whole term immediately vested.

SIR MAURICE: Yes, I do not dispute that but this is not made by bargain and sale.

McHUGH J: I know, but it shows that the critical issue to create the reversion was the vesting of the estate, and this statute vests the estate.

SIR MAURICE: No, your Honour, the critical issue was possession. If you had the Statute of Uses you could - I have forgotten the exact way it used to work but it would convert the use into the estate, from my recollection, and so it would vest the estate in possession but it would not vest possession. As I understand it, that was why the Statute of Uses and bargain and sale did not require entry to complete title.

But, your Honour, in the Law of Property Act which applied, according to section 5(1)(c):

to estates, interests, and any other rights in or in respect of land, granted, created or taking effect under any Act or any repealed Act
provisions of which continue to apply -

well, I suppose the Act has been repealed by this time. But, in any event, I am only using this to show that the law about entry was repealed. They say in section 7, and I think your Honour Justice Gummow asked a question about the Statute of Uses in Western Australia, well, it is repealed in Queensland, and then they say at section 8(1):

All lands and all interests in land shall lie in grant and shall be incapable of being conveyed by livery or livery and seisin, or by feoffment, or by bargain and sale -

as your Honour Justice McHugh -

or by lease and release, and a conveyance of an interest in land may operate to pass the possession or right to possession of land, without actual entry, but subject to all prior rights to the land.

And then they define what the word “grant” is. Then, your Honours, we have also put in section 102(1) which says:

The doctrine of interesse termini is abolished.

Now, what we are submitting, your Honour, is that it is clear that the common law basis about interesse termini and the necessity for possession existed and it is also clear that that continued to exist until 1974 and in New South Wales until - I think it is section 120A of the Conveyancing Amendment Act of 1930 - and the position in Victoria I cannot tell your Honours. So that was the position.

If one had anticipated that section 6(2) did away with entry, one would have thought to find there words dealing with possession and entry but they are not there, and they had to wait until 1974. We submit, your Honour, with respect, that it is not possible to view section 6(2) as if it abolished the doctrine of interesse termini in relation to these types of interests - talking about leasehold interests, and subject to one observation, if it is right to say that when it uses the word “lease” it is using it in the common law sense and it is using a lease that requires entry to which the doctrine of interesse permini is applicable. If that is the proper approach, then the result is irresistible and that means that in relation to the Thayorre People their native title was never terminated because no interest arose.

Your Honour the Chief Justice has asked for a list of sections that may be relevant in the 1910 Act, and if your Honour wants them from that - although I think my learned friend, Mr Sofronoff is giving it, we will certainly get them.

BRENNAN CJ: Yes, I think the Solicitor‑General for Queensland has already given us some references in relation to surrenders. We may as well have the whole lot together, I think.

SIR MAURICE: Can I just say now, why it was, in our respectful submission, that section 6(2) went in. In 1867 the Statute of Frauds and Limitations Act 1867 provided this - section 4

No leases, estates or interests either of freehold or terms of years or any uncertain interest of in to or out of any messuages lands tenaments or hereditaments shall be assigned granted or surrendered unless it be by deed or note in writing signed by the party so assigning granting or surrendering the same or their agents thereunto lawfully authorised by writing or by act and operation of the law.

Your Honours will remember that the forms that have been handed up by my learned friend, Mr Keane, I think, showed that the form did not require a signature of any sort. Your Honours I do not think have been informed of this so I will inform your Honours of it now, that section 6(2) appears in similar form in section 8 of the Crown Lands Act 1884.

Your Honours, I was almost tempted to say that my learned friend the Commonwealth Solicitor was treating the Property Law Act as if it had been passed in 1874 but, however, perhaps I should not, having made that mistake myself. Now, your Honours, those are the submissions except that we just wish to say that the Court is not concerned except with the fact that under the Constitution of Queensland and the other Constitutions, the power to grant leases and the entire disposition of Crown lands, base lands of the Crown, is vested in the legislature so that all grants are statutory and all rights are statutory and, therefore, one is not concerned with filling out the statute by notions derived from the situation that existed prior to the statutes taking those forms and I think, your Honour ‑ ‑ ‑

BRENNAN CJ: Sir Maurice, if that be regarded as the basic principle to be applied to Australian land law, what room is there for native title, that title having no statutory authority pursuant to either section 30 or section 40 of the Constitution Act?

SIR MAURICE: It is not granted by the Crown. It is a title outside the common law, as your Honour said, and it is a title - it is not an institution of the common law and it is not of a common law tenure, and your Honour said those two things upon which we rely, and we would say that is the reason. The common law then said although the system of tenure is ingrained and has taken this new form in Australia, or certainly in the eastern States, namely a legislative power in the Parliament, then, nonetheless, we would recognise that a title deriving from a different source, an allodial title, is recognised by the common law. I know that is a confused way of putting it, but the common law said, “We will recognise that title deriving from a different source and not inconsistent with this.” Now, your Honour, I think that is all I want to say.

KIRBY J: You said “not inconsistent” but in terms of the fee simple it is suggested that your assertion is that it, likewise, can be over‑ridden by native title. Is that, in fact, your submission?

SIR MAURICE: Your Honour, what I was saying was that the mere grant of a fee simple, without more, does not extinguish native title; the mere grant of it. I have already said why. It is because it is in one system of land holding, namely the tenured system, and the native title exists outside. So, the mere occurrence of an event within the tenurial channel, if I may so put it, does not affect what occurs in the other funnel somewhere else. However, since it is an exercise of sovereignty, in this instance legislative power, the enforcement of the rights given by the title to the title holder to expel the native title holder will extinguish native title.

It is analogous to what your Honour the Chief Justice said in Mabo. When one has a dedication of land for a purpose - and your Honour will remember the purpose at page 68 - about a school, your Honour said that did not extinguish native title. In other words, the act of the Crown in making that dedication left native title unaffected. It would be different when the buildings began and when the children, no doubt, went to school.
So that is not just something that occurs inside the tenurial system, or the system of tenure, that extinguishes title. It is that plus the exercise of the rights with which the sovereign has armed the title holder. That is our submission, if the Court pleases.

BRENNAN CJ: Thank you, Sir Maurice. The Court will consider its decision in this matter. The Court is indebted to counsel and instructing solicitors for the co-operation that they have manifested in the preparation of written submissions, extensive as they are, and for adhering very closely and, indeed, most efficiently to the time limits which have been proposed. The Court is indebted accordingly.

AT 3.57 PM THE MATTER WAS ADJOURNED

[1996] HCATrans 169

Key Legal Topics

Areas of Law

Native Title

Constitutional Law

Property Law

Legal Concepts

Jurisdiction

Standing

Procedural Fairness

Statutory Construction