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 WEDNESDAY, 12 JUNE 1996, AT 10.17 AM

(Continued from 11/6/96)

________________

BRENNAN CJ: Yes, Mr Sher?

MR SHER: May it please the Court, we intervene in this matter in support of the appellants, your Honours, and yesterday in the course of the exchange between members of the Bench and the Bar table, the Court highlighted what was described by your Honour Justice McHugh as “the problem” and by Justice Gummow as “the question”. The observation of Justice McHugh at page 24 of the transcript was as follows:

prior to Mabo [No 2] the accepted theory in this country was that one could only hold title to land by reason either of a grant, lease or licence from the Crown. There being no grant, lease of licence from the Crown, nobody had any title to the land until Mabo [No 2]. Now, the problem is to fit Mabo [No 2] in with the nature of radical title, if you like, absolute beneficial ownership.

Justice Gummow at page 32 in an exchange with my learned friend Mr Sofronoff, in discussing allodial rights put it this way:

the question is: how does one fit them together by this concept that statutes do not ordinarily cut down common law rights -

and your Honour then observed:

we are just on virgin territory, are we not?

Our submission to the Court is that there is a problem or question arising in this matter which is novel, but the answer to Justice Gummow’s proposition as to whether this is virgin territory has to be a qualified “yes and no”. It is a new issue in this country because we are dealing here with a distinctly Australian concept, namely, a pastoral lease, and in that sense these appeals do involve venturing into virgin territory, certainly in this country, although our researches have revealed one case only in the United States of America in which something akin to a pastoral lease was discussed and discussed favourably to the Indians. The name of the case, your Honours - and it is dealt with in the submissions of my learned friend, Mr Bartlett, in paragraph 8 - the case, your Honours, is United States v Dann, which was heard by the Ninth Circuit and went to the Court of Appeal. The reference to that case is in paragraphs 8.3 and 8.5 of my learned friend’s submissions, and I do not wish to do anything at this stage than mention the fact that that case exists where grazing permits under a specific federal Act were held not to extinguish Indian title rights.

In so far as the Court is concerned with the question of whether Indian or Aboriginal or native title rights have been extinguished, we are not in virgin territory, and guidance is to be found in the Canadian case, in particular, of Delgamuukw, and, we would contend, in some observations of members of this Court in Mabo. The problem, your Honours, or the question is, “How does one reconcile centuries old concepts of land tenure with what is for this country a very new development, namely, the concept of a radical title held by the Crown burdened by native title rights?” And, with respect, we would adopt the observations of your Honour Justice Toohey yesterday in which you observed at page 33, in discussing the actual leases with which these appeals are concerned, or one of them:

the question is really what rights are created by this document......What is really concerned with is what rights are conferred -

And:

talking in terms of labels......does not necessarily advance the argument a great deal.

The approach which was adopted by your Honour the Chief Justice in Mabo in that passage at page 68, already much discussed, is, in our submission, an illustration of the approach which adopts traditional concepts of land tenure but does not make appropriate allowance for the effect upon those concepts of the development represented by this Court’s decision in Mabo [No 2]. Your Honour did later, in the course of the day, offer what we would respectfully adopt as the appropriate approach to that matter when your Honour observed at page 22 of the transcript, in discussion with my learned friend Mr Sofronoff, the proposition that:

where there is a Crown lease, one can postulate exactly the same rights, not by virtue of property but by virtue of power and, therefore, it is unnecessary to postulate any proprietary reversion in the Crown.

So, in those observations, we would respectfully suggest that your Honour the Chief Justice adopted the appropriate approach, that is to say, to have regard to the concepts of land tenure, with which we have all grown up, but to have regard to them in the light of the developments which flowed from the decision of this Court in Mabo.

BRENNAN CJ: I did not adopt anything, Mr Sher. I was simply putting in an observation for Mr Sofronoff’s response.

MR SHER: Well, Mr Sofronoff appeared to us to adopt that proposition, your Honour, and so do we and we would respectfully suggest that that is the appropriate analysis of this particular issue in this matter. Now, the suggestion we make to the Court, our submission is that the way in which these problems need to be resolved is to examine all the circumstances, including the legislative background, any regulations made pursuant to legislation and the actual documents themselves so that one can compare what rights are granted pursuant to, for example, a pastoral lease and compare it with the native title rights which it is said to extinguish or perhaps impair. That, we submit, is a necessary exercise because the ‑ ‑ ‑

DAWSON J: But what are you comparing it for?

MR SHER: One is comparing it for the purpose of seeing whether they are incompatible.

DAWSON J: What do you mean when you say “they are”; that the rights exercisable by virtue of the native title and the holding of the lease are incompatible?

MR SHER: Yes.

DAWSON J: A physical incompatibility, because that is not the test.

MR SHER: Your Honour, the question of the nature of the native title rights is an issue to be determined from case to case by reference to the particular native title rights that are asserted. It is an issue of fact and the Court has so observed, or your Honour the Chief Justice so observed, in Mabo in a passage at page 58. At that particular part of the judgment under the heading “The nature and incidents of native title”, your Honour observed that:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Your Honour later observed in the same paragraph:

But once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was “desert uninhabited” in fact, it is necessary to ascertain by evidence the nature and incidents of native title.

DAWSON J: But no one is contesting that, that you can only ascertain the content of native title by reference to native customs, native law. But the point is that the native title is a burden upon the radical title of the Crown. The question is whether in the exercise of its rights pursuant to that radical title the Crown carves out an interest which is inconsistent with the coexistence of that burden, the burden ceases to exist. That question is not to be answered by looking to see whether native title rights can be exercised at the same time as the rights of the lessee.

MR SHER: Well, with respect, we would suggest that that is precisely what one must do. If one has to ask the question, “Are these native title rights in this particular case, which may vary from one title to another, extinguished by the grant of such an item as a pastoral lease?”, one can only answer that question by examining what it is that the lessee under that lease has been given by the Crown and compare it with the rights ‑ ‑ ‑

DAWSON J: The answer to that question is not difficult to find; he is given an interest in the land to the exclusion of all others.

MR SHER: With respect, your Honour, we would suggest that is not what is given. That an interest in land is given cannot be gainsaid. We do not quarrel with that proposition for a moment. But the nature of the interest that is given, we submit, has to be examined to determine whether that interest - and native title is an interest in land - is incompatible with the ‑ ‑ ‑

DAWSON J: No, whether, by granting an interest of that kind, the Crown has acted in disregard of any other interests in the land or whether it has not.

MR SHER: Well then, one asks rhetorically, how does one test that question?

DAWSON J: Because of the nature of the grant which the Crown has made, which is by way of lease.

MR SHER: When one examines the nature of the grant that is made, in our submission, the only way one can do it is to make an examination of the legislative regime under which the grant is made, any regulations that are made under that legislative regime, the terms of the grant itself in the form, in this case, of a lease document, and having done that exercise to then see what it is, what are the rights that flow to the lessee as a consequence of that examination.

DAWSON J: No, to see whether the Crown acted in disregard of any other rights that might have existed over the land.

MR SHER: The answer to that, with respect, your Honour, is that it would not have done so if what it did was to grant rights to the lessee which are compatible with the continued existence and exercise of native title rights. I can illustrate my point ‑ ‑ ‑

DAWSON J: But there is an air of artificiality about all of this because we all know that the Crown, when it granted the lease, did not know the existence of native title. In that sense, at least, it acted in complete disregard of it.

MR SHER: With respect, we agree. But, might I illustrate my point by taking your Honours to some Northern Territory material which we say is a necessary step in every single instance in which it is asserted that a particular grant of an interest in land by the Crown which may affect native title has been made. We had circulated to your Honours some material which is already in the material before the Court but, for convenience, we have had it collected together and it comprises, in this particular instance, parts of the Northern Territory Land Act 1872. There is a small bundle of material that we circulated through the Registry this morning.

KIRBY J: It is 1872?

MR SHER: 1872.

KIRBY J: And it is the Northern Territory, or is it the South Australian?

MR SHER: It is the South Australian Act in respect of:

portion of the Province of South Australia commonly styled the Northern Territory.

It is material which is in the Northern Territory bundle of material but, for convenience, we have extracted it. Can I take your Honours to two sections of this particular Act? Firstly, section 74, and I apologise the quality of the reproduction is not as good as it might be but it is legible, your Honours. Section 74 provides that:

The Governor may demise, for any period not exceeding a twenty‑five years, for grazing and other pastoral purposes, any waste lands, to the first applicant therefor, without previously offering the same for sale by public auction, and may reserve in any such demise such rent payable in advance, and may insert therein such conditions and clauses of forfeiture and of resumption as shall be prescribed by any regulations hereinafter authorised to be made touching waste lands demised for grazing and other pastoral purposes:

So, here is a general provision permitting the granting of what, in effect, is a pastoral lease subject to terms and conditions prescribed by regulation. There is another interesting provision in this Act which I will take your Honours to while we have it, and that is section 20 which deals with this concept of the reversion and shows that there is a ‑ ‑ ‑

BRENNAN CJ: You may have another five minutes, Mr Sher.

MR SHER: As your Honours please. This section provides for waste lands held under lease which:

shall be or have been forfeited, resumed or re‑invested in the Crown.....shall be considered waste lands within the meaning of this Act, and such lands may be dealt with as may seem expedient -

So, here is a legislative provision which provides that, in effect, the reversion of the Crown is to be treated as though it were exactly the same as before the demise were made in the first instance.

McHUGH J: You use the word “reversion” and it may be that these new Australian tenures do not have reversions in any sense. They are a statutory lease out of the Crown’s radical title and that is it. I mean, to introduce the term “reversion” is to think in terms of the common law constant.

MR SHER: And we strongly urge the Court not to do that and to reconsider the matter in the light of this Court’s decision four years ago.

KIRBY J: It introduces a high element of uncertainty, though, does it not? And in terms of the administration of the law, it introduces a great deal of cost as each particular lease has to be weighed and each incident has to be judged.

MR SHER: Well, there are two answers to that, with respect. The first is that this Court will establish principles in this case which may be applicable to many leases, but I caution the Court, with respect, against going too far, because even within States and the Territory the content of a pastoral lease has changed from time to time and, secondly, if, in fact, it proves to be the difficulty your Honour Justice Kirby has mentioned, it is really a matter for the legislature and it could cure that sort of problem.

KIRBY J: Well, that is one view; the other view is that the passage that was focussed on yesterday provides the clue that native title as declared is very fragile and once the Crown exercises a right it blows it away.

MR SHER: Well, with respect, if one looks at the observations in cases such as Delgamuukw in the Court of Appeal British Colombia, and we provided your Honours with a copy and the passage in particular at page 524 and 525 - I will not read it to your Honours in view of the time - and passages in the judgments of members of this bench in Mabo at page 196 per Justice Toohey, page 110 per Justices Deane and Gaudron and, indeed, the remainder of the paragraph of your Honour the Chief Justice at page 68. Nobody seems to have gone past the first four sentences, but if we read on, what we there see is that in all those passages, what each member of the Bench is talking about is the necessity of a comparison between the native title rights said to be extinguished or possibly impaired, and that is an aspect which we submit must be borne in mind, that they may merely be impaired and only temporarily impaired and what is granted by the particular demise under consideration, because in each of those passages, and your Honour the Chief Justice at page 68 in particular talked in terms of a reservation for public purposes not affecting native title until, in fact, those public purposes were put into effect.

Now, what those passages and what the Canadian case of Delgamuukw illustrate is that it is an exercise that needs to be undertaken in each case to examine and compare two bundles of rights, and fragile though they may be it is clear, in our submission, from observations in Mabo in particular and in Delgamuukw, that these rights are not to be extinguished, as it were, by a side wind and without it being clearly established that they are to be.

KIRBY J: If the Court has a choice and, on one theory, a Mabo [No 2] theory, though not dealing with it as a holding, it can say, well, it is really for the Parliament to sort this matter out at this stage, but the other choice that you tendered to us is one which suggests that the Court should take this next step.

MR SHER: The Court can establish principles in relation to pastoral leases of the nature which are before the Court in this case and undoubtedly will do so, and that will provide significant guidance to pastoral leases of a like kind in any case hereafter, but to go beyond that at this stage, in our submission, would be inherently dangerous because pastoral leases change from State to State and within States over the history of the State. When one is considering the rights that are granted to a pastoral lessee, in our submission, it is a mistake to conclude that they are all the same.

There must be occasions in which the grant of some estate, such as a fee simple, clearly will, whatever be the native title rights, from the viewpoint of the common law, make those native title rights unenforceable. There will be such instances, but when we are dealing with a pastoral lease, with respect, we are not dealing with something which is by its very nature inconsistent.

DAWSON J: Yes, you are, you see. That is where you make the mistake suggested because the interest is given and it is clear what the interest is. The fact that it may only be exercised in a particular way, enjoyed in a particular way by reason of a statute or by reason of contract, does not alter the nature of the interest.

MR SHER: I think, with respect, that is where our submissions run headlong into the view your Honour has just expressed.

DAWSON J: Yes, but that is your difficulty.

BRENNAN CJ: We have been through that, have we not, Mr Sher?

MR SHER: If that is the view of the majority of the Court, we will no doubt find out that that is the correct view.

DAWSON J: But it is what you have to counter, and you have done that.

BRENNAN CJ: You have put your proposition.

MR SHER: I would like to say some more, your Honours, but I am conscious of the time.

BRENNAN CJ: What else do you have to say that is not covered by your written submissions?

MR SHER: What our written submissions did not do was address the matters that actually arose in the course of the debate yesterday. What I have endeavoured to do this morning is ‑ ‑ ‑

BRENNAN CJ: What points that arose yesterday do you wish to deal with?

MR SHER: Identifying the problem and suggesting a solution to it. The solution we suggest is that one should approach it not so much on a case‑by‑case basis but by an examination of the relevant rights in each case and compare them and see if they are compatible. We emphasise that native title rights do not necessarily have to be extinguished; they may be merely impaired.

BRENNAN CJ: Those points were all made yesterday.

MR SHER: They were, that is so, your Honour. Might I just say in relation to the Northern Territory - and if I can just complete the reference to the material that your Honours had - the regulations that were then made pursuant to that Act, regulation 8, did not prescribe in detail - and your Honours have the regulations there - what it is that the pastoral leases needed to provide for. But it provided for conditions necessary for the protection of Aborigines, so it moved a step further from the legislation to the concept of protection of the Aborigines. We have then given your Honours copies of two reservations in two relevant leases under this legislation. They are in identical terms and the second is much more legible than the first. I merely wish to draw the Court’s attention to the terms of these reservations, bearing in mind we are talking here of a pastoral lease. The reservation which your Honours will see on the second page, about two‑thirds of the way down, was in these terms:

“RESERVING NEVERTHELESS AND EXCEPTING out of the said demise to Her Majesty Her Heirs and Her Successors 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, egress and regress into and upon and over the said Waste Lands of the Crown hereby demised and every part thereof and in and to the springs and surface water thereon and to make and erect such wurlies and other dwelling as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this demise had not been made”

We say that the lease granted in these terms clearly preserved and was intended to preserve, although not properly understood, such native title rights as existed by the relevant Aboriginals in respect of this land. In our submission, it is not appropriate to approach the matter in the way in which your Honour Justice Dawson has suggested by merely looking at the fact that an estate in land has been granted by the Crown and ‑ ‑ ‑

DAWSON J: This may affect the estate which has been granted, of course. That is a different thing.

MR SHER: That is our contention.

DAWSON J: But we are talking about a situation where there is no reservation in this particular case.

MR SHER: This highlights the point that we and my learned friend Mr McIntyre made, that it is not desirable for the Court to go beyond the immediate issues in this case because of the differences between the legislative provisions between different States and Territory. In our submissions we deal with the Northern Territory and compare it to Queensland.

BRENNAN CJ: The Court is conscious of that and the leave to intervene has been granted upon terms of dealing with the issues arising on the notice of appeal.

MR SHER: I do not wish to repeat anything my learned friends have said about the leases but they did refer to the terms of them in argument yesterday and, in our respectful submission, the terms of those leases are eloquent in establishing that native title was not affected by them. If the Court pleases.

BRENNAN CJ: Thank you, Mr Sher. Mr Bartlett.

MR BARTLETT: If it please the Court, the outline of argument and the reply of the Miriuwung and Gajerrong Peoples, which I believe should be before you, is directed to the fundamental structure of the analysis with respect to extinguishment of native title by inconsistent grant in the form of a lease. Our principal point is that found at point 7 of the outline of argument, which declares the proper inquiry is not the characterisation of a grant as a lease or whether or not it confers exclusive possession but is confined to the nature of the relationship between the holder of the pastoral lease and the native title claimants.

We would also wish to make submissions with respect to the nature of radical title and the reversion at the end of the reference to that principal submission, but I would like to begin by alluding briefly to points 1 to 6 made in the outline of argument of the Miriuwung and Gajerrong Peoples, which suggests that the fundamental criterion, which the Court should apply, is the necessity for a clear and plain intention to extinguish native title, and I believe the authorities set out in points 1 to 6 clearly establish the weight and significance of that criterion.

The only particular point among those six I would like to refer to is point 4, which can be found at page 7 of the outline of argument, which seeks to make clear that the requirement of a clear and plain intention is an attempt to balance the requirements of equality before the law with the facts and the history of settlement of Australia. That is, in Mabo [No 2] the Court recognised that the facts of the history of settlement of Australia required that there be a notion of extinguishment of native title without consent and without compensation. But, at the same time, it was necessary to recognise native title, to some extent to equate the rights of the inhabitants of a settled colony with those of a conquered colony. So, the requirement of a clear and plain intention fetters discriminatory extinguishment of native title and we would seek that it be given the appropriate weight.

Our principal submission we would seek to make today is that found in point 7, which is set out at pages 12 and thereafter and also in point 1 of the reply, which endeavours to suggest that there is a fundamental flaw in the arguments put forward by the Commonwealth and the States of Queensland and, in particular, Western Australia. The point we seek to make in those submissions is that, of course, characterising any instrument as a lease or a conferring exclusive possession, is a very complex and difficult matter and we refer to a United States authority which has endeavoured to do that and done it in connection with ‑ ‑ ‑

GUMMOW J: Could you just slow down for a minute. That article referred to in 7.1.2 on page 13 of your submissions, Mr Bartlett, have we been supplied with that?

MR BARTLETT: I am not sure you have been supplied with it; I was not requested to by the librarian, but we can of course make it available.

GUMMOW J: Yes. Well I would be assisted to have it.

MR BARTLETT: The article, which as I say I regret that you have not had access to, engage in a complex analysis of the rights of pastoralists in connection with all others who might have rights or interests with respect to grazing lands in the Western United States, including as I indicated minors and Aboriginal people.

BRENNAN CJ: It would be desirable to have copies available for all Justices, Mr Bartlett.

MR BARTLETT: We will certainly do that, your Honour. That article indicates the complexity of the task, but it is not our principal point that we make with respect to point 7. Our principal point with respect to point 7 is that exclusive possession being a concept which occurs in varying degrees with respect to leases, that is instruments confer differing degrees of exclusive control over land and, accordingly, confer different degrees of exclusive possession, albeit the threshold may be arrived at, may contemplate a wide variety of other interests. That is, there can be a consistency with a wide variety of other instruments and a document such as a pastoral lease constituting a lease and conferring exclusive possession.

BRENNAN CJ: The question may be whether or not it is consistent with any other possessory rights.

MR BARTLETT: I would accept that, your Honour, but if a native title claim consists in a lesser right than the claim for possession, there would seem to be no difficulty in that circumstance of there being a consistency.

BRENNAN CJ: That may well be right. That may cover, for example, as I mentioned yesterday, the entitlement of one group as against another to conduct certain ceremonies. At the core of native title involved in these proceedings are the possessory native title rights, are they not?

MR BARTLETT: I would suggest, your Honour, that rights for access to gather food from the land or to enter upon the land for the purposes of conducting ceremonies are not necessarily possessory rights. They do not constitute taking control of the land but, yet, they are rights and interests which can be consistent with exclusive possession in another party.

BRENNAN CJ: Well, that might be the point. I was using “possessory” as indicating the kind of rights which might run into concepts of exclusive possession under a lease.

MR BARTLETT: I would acknowledge, your Honour, that if a claim is made that native title constitutes exclusive possession, then, in the circumstance you present there would be an inconsistency.

BRENNAN CJ: Well, the point that I want to draw your attention to is simply whatever you may say about rights which can be exercised without, in any way, requiring possession or without - no, I will rephrase that. Native title rights which cannot be exercised against the lessee of a pastoral lease, if the lessee of a pastoral lease chooses to exercise his/her or its rights to the full, are the rights which are at the core of these proceedings.

MR BARTLETT: I am assuming, your Honour, that the pastoralist will exercise rights to the fullest extent conferred by the instrument. That is my assumption which I make with respect to these arguments. My suggestion is that many native titles rights will not be inconsistent with those rights. There may be some which are certain claim which would be, and to that extent we would acknowledge an impairment or extinguishment, but there may be many others including the rights of access for food, rights of access to conduct ceremonies, rights of access to live in some small way upon the land would not be inconsistent.

McHUGH J: I do not understand that. I cannot see how they could possibly be consistent once you concede a right of exclusive possession. If I ride my horse across a pastoral lease, can the lessee sue me for trespass? If I camp on his or her land, can they get a writ of ejector against me?

MR BARTLETT: If the native title rights constitutes a right of access for those purposes, only if the instrument has expressly manifested a clear and plain intention to extinguish that right will the lease be possessed of that right. Perhaps, your Honour, if I might be permitted to cite the Commonwealth’s submissions in support of the point I am endeavouring to make. The Commonwealth in paragraph 1.9 of its submission - and there is a similar submission in paragraph 13(a) of Western Australia’s - states that:

Extensive reservations of rights of entry and use of the land have been regarded as consistent with exclusive possession.

That is the Commonwealth, and Western Australia, likewise, in paragraph 13(a), contemplate consistency between exclusive possession and rights and interests possessed by many other parties. Indeed, the Commonwealth refers to them as being “of an extensive nature”.

McHUGH J: But those rights arise out of statute or out of the instrument of lease itself, but you are seeking to rely on a right that the common law recognises to overcome the exclusive nature of the grant or, not to overcome it but to say it is consistent with the exclusive nature of the grant.

MR BARTLETT: The submission that I am wishing to make, your Honour, is that exclusive possession is not the criterion that determines this question. That is, it is a misleading criterion to employ to determine if native title has been extinguished. The only proper criterion is that of whether or not there is a clear and plain intention and that is one should look only to the confines of the relationship between the holder of the pastoral lease and the rights conferred by the grant, and the native title claimant.

McHUGH J: That may be, but if you give exclusive possession to the lessee it would seem to follow logically that that is inconsistent with any right of access, for example.

MR BARTLETT: My concern is with respect to the suggestion that exclusive possession necessarily is inconsistent with rights possessed by others. We would submit that it is not. We would understand the Commonwealth and State of Western Australia’s submissions to say it is not either; that is, exclusive possession is not necessarily inconsistent, which we understand it would submit to be the fundamental criterion of extinguishment by inconsistent grant.

TOOHEY J: Well, face up to a particular situation, namely that the pastoralists have built a home, say, in an area close to a water hole being the only source of water on the property or the main source of water and that area, because of its very nature, was the traditional area in which the Aboriginal people associated with the land lived. Now, there is an inconsistency on the face of it. What do you say about that sort of situation?

MR BARTLETT: It would, we submit, depend entirely on the facts of the particular case and looking on the facts of the particular instrument to see whether or not there is a clear and plain intention to extinguish. We acknowledge that in some situations there may be extinguishment, but what we are suggesting is that the inquiry requires an examination of the relationship between the holder of the pastoral lease and the native title claimant.

BRENNAN CJ: Well, take the present case, because that is the one that we are concerned with. You have the leases in front of you. Is a native title right to go onto those premises for the purpose of conducting ceremony a right which is consistent or inconsistent with the rights conferred on the lessee, assuming it to be a lease?

MR BARTLETT: We would submit, your Honour, that the way in which that matter must be determined is by looking to see if there is a clear and plain intention to extinguish native title manifested by the inconsistent grant.

BRENNAN CJ: Well, look at it whichever way you like. What is the answer?

MR BARTLETT: We would suggest there is no inconsistency looking, by the nature of the criterion, to the history of the legislation, the terms of the legislation, the history of the relationship between the Aboriginal people in the area and the history of the treatment of pastoral lands with respect to Aboriginal people. That is the nature of the inquiry.

McHUGH J: That seems to me to be an argument that these leases, so called, do not grant exclusive possession; that they give some confined rights, that they might give exclusive possession in respect of pasturing cattle on the land but, otherwise, they do not.

MR BARTLETT: With respect, your Honour, we are quite prepared to contemplate a circumstance where pastoral leases in any State in Australia are regarded as being leases in law or exclusive possession, but we do not acknowledge that they are necessarily inconsistent with native title, which is a different inquiry and requires the application of different criterion.

TOOHEY J: Well, are you saying that they are not inconsistent with native title or not inconsistent with every incident of native title?

MR BARTLETT: Not inconsistent with every incident of native title. In the absence of determination of the nature of native title, it is very difficult to determine what incidents we are referring to.

McHUGH J: But the whole point of a lease in the common law sense, ... subject to any statutes or subject to the instruments that grants the lease, the leaseholder can turn anybody off the land.

MR BARTLETT: The leaseholder can turn anybody off the land subject to whatever rights are, by express or implication, denied the pastoralists under the terms of the lease and we would suggest that native title requires, as I have indicated, a clear and plain intention to extinguish so that there must be that demonstration of a clear and plain intention to extinguish. Otherwise, the native title might well be preserved. The point that we are endeavouring to make really goes to the nature of material that the Court examines in determining if there is an extinguishment.

TOOHEY J: There is a difficulty, I think, and a possible confusion in simply asking the question, “In the case of a lease which confers exclusive possession, what are the rights of other persons to go upon the land?” The short answer may simply be well, there are none. They are putting native title to one side because any rights that are likely to be claimed are inconsistent with the grant of the lease and the incidents of that lease but when you move into the area of native title it may be that the question is a different one because you are then speaking of a form of title carrying certain rights which the common law recognises. Now, that does not answer the question but it perhaps suggests that the inquiry is not answered simply by asking, in terms of an ordinary commercial lease or, for that matter, the lease of domestic land, “Who is entitled to exercise rights in relation to that land if it is the subject of a lease?”

MR BARTLETT: We would agree with those observations, your Honour. On point 1.4 of our reply we endeavoured to set out the multitude of rights and interests that arise with the respect to a pastoral lease in Western Australia today, not by way of any direct application to this case, but to indicate the problems with applying a criterion of exclusive possession.

If I might conclude my submissions with respect to two aspects; the first of those is by way of explanation, we would suggest, of the comments made by, as he then was, Justice Brennan and Justices Deane and Gaudron, with respect to the operation of leases and the question of reversion. We would submit that they addressed the general case, and in the general case they may well be entirely correct. But, in the exceptional case, and we would suggest the pastoral lease is the exceptional case, they would not be applicable, because in our view there is nothing in the judgments of any member of the Court to suggest that a wholly unique criterion was to be adopted with respect to leases as opposed to any other grants. There is no suggestion there was to be a modification or deviation from the criterion requiring a clear and plain intention to extinguish demonstrated by the inconsistent grant.

Our final point addresses the question of radical title and reversion. Questions were raised by the Bench yesterday as to what was meant by radical title, and we would suggest the originating reference with respect to that problem is found at page 60 of Mabo [No 2] in the judgment of Justice Brennan. Our proposition with respect to the question of radical title is that radical title consists in everything else except native title. The significance of that we hope will become apparent as we explore its relationship to reversion. If you look at page 60 in the judgment of Justice Brennan, reference is there made some two‑thirds of the way down the page, to the Crown acquiring sovereignty. The part I am referring to ends with reference to footnote (66):

Once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown’s sovereignty over all land in the territory carries the capacity to accept a surrender of native title.

It then reads:

The native title may be surrendered on purchase or surrendered voluntarily, whereupon the Crown’s radical title is expanded to absolute ownership, a plenum dominium, for there is then no other owner.

That is, the only burden, the only deficiency of the Crown title at the time of the acquisition of sovereignty is native title. Further support for that approach, of course, is found if one turns to the footnoted reference in (66), St Catherine’s Milling & Lumber Co where, at the reference there which is page 55, we find a reference to what is meant by radical title by Lord Watson in the Judicial Committee of the Privy Council referring to:

a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

Further support for that notion of radical title can also be found at page 48 of the judgment of Justice Brennan, where Justice Brennan, as he then was, made reference to the case of Amodu Tijan v Secretary, Southern Nigeria.

GUMMOW J: That decision of Lord Watson is an appeal from Quebec, is it not? An appeal from Canada?

MR BARTLETT: It involved native title in north‑west Ontario, your Honour.

GUMMOW J: Right. Were there any Privy Council decisions involving native title in Quebec?

MR BARTLETT: There is a successora judgment of the Privy Council - Attorney‑General of Quebec v Attorney‑General of Canada (1921) AC. I do not have the reference directly with me.

GUMMOW J: That is what I had in mind. That is not common law, is it? When the Crown acquired Quebec it did not install the common law system.

MR BARTLETT: With respect, your Honour, I do not think it is pertinent to this particular point because the Quebec decisions arising in the Privy Council do not bear usefully on this point at all. I would suggest, your Honour, in fact, that the decisions from Quebec have accepted the universal notions of common law native title.

GUMMOW J: No, I am talking about common law real property. I am talking about the doctrine of tenures.

MR BARTLETT: There would be some difference in respect to the nature of the tenures under the Crown title, but the acquisition of sovereignty in Quebec assumes full beneficial interests subject to native title in Quebec.

GUMMOW J: I am not sure that is right, but anyhow.

MR BARTLETT: If I might refer your Honour to the case of James...... I would like to be able, if I could give the citation to the Quebec Court of Appeal where the matter was considered. The other case which points ‑ ‑ ‑

BRENNAN CJ: Will you be able to complete your submissions in 5 minutes, do you think, Mr Bartlett?

MR BARTLETT: I certainly will, your Honour. The other case which supports this notion of radical title is Amodu Tijaji v the Secretary of Southern Nigeria, Viscount Haldane in the Judicial Committee of the Privy Council, a case which, as I indicated, was referred to at page 48 of Mabo [No 2], where radical or final title is the phrase that is referred to - page 403, one-third of the way down - and it is there declared:

the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached.

Depending, of course, upon the ambit of native title. That is, I would suggest those Privy Council decisions, as it seems to be adopted by the judgment of Mr Justice Brennan, make clear that upon the acquisition of sovereignty, all interest in the land vests in the Crown other than native title. Now, the significance of that understanding of radical title is what happens upon a grant, because upon the grant of any interest, there is no acquisition of a reversion. There is no expansion of the interests of the Crown except to the extent of extinguishment.

Accordingly, to say that a reversion is acquired by the Crown does not answer the question of the extent of the reversion, because that is determined by the extent of extinguishment, and in order to answer the question of what is the extent of extinguishment and, therefore, the extent of the reversion which is acquired upon the grant, one must look to the fundamental criterion we have endeavoured to dwell upon, namely, the manifestation of a clear and plain intention by an inconsistent grant. So I would ‑ ‑ ‑

BRENNAN CJ: Applying that practically to a specific case, if there is a grant of a lease which confers exclusive possession, then the reversion that the Crown would take would be one which entitles the Crown to exclusive possession. If, on the other hand, the grant is one which reserves from the grant a right of access for Aboriginal people then, on your argument, the reversion would equally allow that access. Is that the situation?

MR BARTLETT: Certainly we would agree with the latter result that you contemplated, though the reservation would truly be an exception according to the established authorities. On the former ‑ ‑ ‑

BRENNAN CJ: That is an exception from the grant, not a reservation issuing out of the interest granted.

MR BARTLETT: Exactly, your Honour. The established authorities, it seems, which I can refer to, would seem to me to establish clearly that it is an exception not a common law reservation. So, in those circumstances, we would submit there is no clear and plain intention to extinguish native title.

KIRBY J: Is there any text discussion of radical title and its nature? Why is it called radical? Does that give a clue as to its character?

MR BARTLETT: I believe the original reference is by Lord Watson in the St Catherine’s Milling v The Queen in the right of Ontario decision, your Honour. In terms of further textual discussion or analysis, I think the Privy Council decisions I have given are it, your Honour.

GUMMOW J: Lord Watson was brought up in Scotland. He had a non‑common law background in matters of real property.

MR BARTLETT: That may well have formed his understanding.

KIRBY J: He probably thought everything was radical ‑ ‑ ‑

MR BARTLETT: Your Honours, those conclude the submissions on behalf of the Miriuwung and Gajerrong People.

BRENNAN CJ: Thank you, Mr Bartlett.

KIRBY J: Can I just say that I found the discussion of radical title that you put before the Court very helpful. If you were to find any textual discussion on it, or if any of the parties can, of this character, I would be appreciative of it.

MR BARTLETT: Thank you very much, your Honour. I will endeavour to provide them.

BRENNAN CJ: Mr Solicitor for Queensland.

MR KEANE: Thank you, your Honours. May it please the Court, our oral submissions will be broadly in four parts. Firstly, as to questions 1B and 1C, we with to take a moment to deal briefly with the nature of the title, the native title advanced, to support the Wik claims in this case. Secondly, the second broad category of our submissions will involve the submission that the grant of pastoral leases negates the continued right to enjoy native title at common law. There can be no continuous right to enjoy native title involving occupation or possession or physical presence where there is a grant of exclusive possession to the lessee and that, it is submitted, is because the pastoral leases were effective to create rights which firstly exclude the right to possession of or access to the land in any person other than the lessee and, secondly, because upon their creation they create in the Crown or appropriate to the Crown a beneficial interest beyond the mere radical title and that, in two respects: firstly, the interest deriving to the Crown or deriving from the right of the Crown to rent and to protect its interest; and, secondly, at the expiry of the term when there is no other proprietor, the interest of the Crown has expanded beyond the radical title to plenum dominium, and that analysis is, we submit, supported by the observations in Mabo [No 2] in the judgment of Justice Brennan, as his Honour then was, at 68 point2, 73 point 1 and in the judgment of Justices Deane and Gaudron at 100 point6.

Your Honours, we submit that the nature of the relationship of landlord and tenant, created by the grant of a pastoral lease, is too securely established in point of authority now to be rejected consistently with the requirements of the rule of law and, contrary to the view advanced by the Thayorre People, we submit, that as a matter of construction of the Land Act, entry into possession by the lessee was not essential to the grant of rights under the lease.

In the third part of our submissions we propose to address some specific arguments advanced by our learned friends, for the appellants and those intervening in their interests, in support of the general submission which has been developed by the appellants that the grant should be read down. If one accepts that it does operate to confer rights of exclusive possession and thus to preclude continued recognition of native title, the submission is made that it must be read down in some way, we wish to address the various arguments that are advanced, in some cases in the written submissions and in some cases orally, to support that approach. The fourth part of our oral submissions will deal with questions 4 and 5.

Your Honours, if we can take you for a moment to look at the nature of the case advanced in the Wik claim, and we wish to do that because our friends for the Wik, in their oral submissions, put their case at page 14 line 25 of the transcript, on the express footing that they:

claim.....very little indeed. It is only what is left .....after the pastoralists have -

exercised their rights. And Mr Doyle, on behalf of ATSIC, addressed a submission to the Court, which seemed to assume that the nature of native title was a matter at large for speculation and, in our respectful submission, that is not the case. The questions that have come before this Court have come before the Court as they did before Justice Drummond on the footing that the native title pleaded may be made out and, your Honours, this is not a case about people not being removed from land. It is, with respect, a little more adventurous than that.

It is a case where the claim is for possession and for full beneficial ownership and where the consequence of those claims is to deny validity to dealings by third parties with the land and to deny the right of exclusive possession to the pastoralists in possession. We have summarised, accurately we hope, the Wik Peoples’ claims in this regard in our written submissions and we will not ask your Honours to look at that at the moment, but the summary is at pages 8 to 17. May we take your Honours now to the actual application and the statement of claim which is in volume 1 of the appeal books.

TOOHEY J: Mr Solicitor, you said that the claim made in the present case denies exclusive possession to the holder of the lease.

MR KEANE: The present holders.

TOOHEY J: Yes. Does the claim go further and deny any possession to the present holders of the lease?

MR KEANE: No, I do not think it does, your Honour. We can take your Honour to that. If we can take your Honours to volume 1 and firstly to the application which is at page 126. Your Honours will see that in the declaration claimed as A1(a), what is claimed are:

1. Declarations that -
(a) the Wik peoples are the owners of each of -

the areas -

and of the natural resources of each of those areas pursuant to their -
(i) Aboriginal title;
(ii) possessory title -

and if one goes to page 127 one sees the attack that is made in relation to the lease to Comalco.

GUMMOW J: It is a question, Mr Solicitor, of what “owners” means in 1(a), is it not? It says:

1. Declarations that -
(a) the Wik peoples are the owners of -

those areas -

and of the natural resources of each of those areas pursuant to their -
(i) Aboriginal title ‑ ‑ ‑

MR KEANE: And one gets instruction in relation to that from the statement of claim which makes it clear that what is being claimed is full beneficial ownership.

GUMMOW J: It cannot be. Can Aboriginal title amount to full beneficial ownership?

MR KEANE: Your Honour, we would submit that it cannot but I think it is, with respect, necessary to address the claim in its terms. The reason we are doing it is really firstly to make the point that it is a rather strong thing to suggest that the title that is asserted is not inconsistent with the title of a lessee.

GUMMOW J: Thank you.

BRENNAN CJ: Before you go that far, why do you say that native title cannot amount to full beneficial ownership if one postulates the situation of native title prior to European settlement?

MR KEANE: Your Honour, if one is addressing it in those terms, then one can see that according to native custom it may be that the nature of the native title right was such as to exclude all others and to have the full beneficial use, usufructuary or otherwise, of the land.

BRENNAN CJ: And it may rest in the community, not in an individual.

MR KEANE: And in accordance with Mabo [No 2] is likely to be communal.

BRENNAN CJ: Then take the next step: post settlement you have the Crown’s radical title.

MR KEANE: Absent an expansion of the radical title or absent some action on the part of the Crown to destroy the native title, we would accept that beneficial ownership remains.

BRENNAN CJ: Full beneficial ownership. So the question is: looking at paragraph 1(a)(i), it may be a claim to full beneficial ownership?

MR KEANE: Yes.

TOOHEY J: I did not quite understand your answer to my question, but that may simply be because the statement of claim itself is not precise in that regard. But I thought you said it does not amount to a claim of exclusive possession in the sense of a claim against the holders of the lease.

MR KEANE: Your Honour, the claims against the current - the parties who are pastoralists, those claims are at page 139, it is paragraph O1(a)(iii), and the contention is that the grants for pastoral purposes of a lease, licence or permission, other than some particularly accepted ones:

have not conferred exclusive rights of possession on the grantees.

TOOHEY J: So it is a claim to ownership, whatever that may mean, perhaps extending to beneficial ownership as the Chief Justice canvassed with you, but one which does not necessarily exclude the rights of possession of the holders of the pastoral lease.

MR KEANE: Well, it forms a basis for saying, “They hadn’t got exclusive possession.” They have not got that which, we would submit, is granted them by the lease. But, apart from the position of the pastoralists these various claims, the claims for native title, are used to base the claim at 127 and following, whereby the challenge is made, it is the first basis, the first foundation, if you like, of the claim that various dealings with the land or with parts of the land are invalid because, for example, there has been a failure to address the interests of the native title holders in that land or fiduciary obligation arising by reason of it or to accord natural justice because those rights might be affected by the grants to Comalco. So it is the basis on which the rest follows.

TOOHEY J: Yes, thank you.

MR KEANE: To come back to your Honour Justice Gummow’s question, if one goes to the statement of claim which commences at page 144 and then goes to page 150, paragraph 8, your Honours will see there that it is asserted that:

The Wik peoples and their predecessors have always been holders of Aboriginal title -

in the land. In paragraph 10 it is asserted that:

At all material times until the present day the Wik peoples and their predecessors in title have continuously -
used, occupied, inhabited and possessed the claimed land -
maintained a traditional connection with the claimed land; and
enjoyed their -
Aboriginal title; and
possessory title,
to the claimed land -

And in paragraph 12 there is an amplification to what is meant by Aboriginal title and possessory title and your Honours will see that it is said to include:

full beneficial ownership of all -
natural resources
minerals on, in or below -

And below the sea area. Now, your Honours, we should mention there is a similar attack on the Aurukun Associates Agreement and the mining lease to Pechiney as there is in relation to Comalco. Prima facie, it is difficult to see how, on any view - on any view of how one approaches the question of determining whether there has been extinguishment - it is difficult to see how those incidence of native title can co-exist with the right to possession granted to lessees, or how the claims made can stand with the submission that all that is sought to be advanced is what is left after full effect is given to the pastoral leases, unless one takes a particularly attenuated view of what is conferred by way of pastoral lease.

Your Honours, can we mention - and we need not take your Honours to this now - but at the hearing before his Honour Justice Drummond some further factual circumstances were put before his Honour on the footing that they should be taken into account in answering questions 1B and 1C. Further, matters of fact to be assumed in favour of the applicants. They are set out at paragraph 15 of our submissions and they include the point that Aboriginal people have from time to time lived on or occupied or visited all parts of the land both before and after the grant of the lease and that the exercise of those rights can, as a matter of fact, occur concurrently with the exercise by the lessee of their rights.

We refer to those matters simply to make the point in relation to some submissions advanced in the written submissions by the Wik Peoples that there may be a factual basis not yet advanced, not yet pleaded, not yet a subject of an invitation to the Court to assume as a basis for a case of estoppel or acquiescence. We mention that simply because it is not the case that the relief claimed in this case is to prevent removal from the land, rather, it is to challenge the rights of others in respect of . We also wished to do this to mention that the factual basis for the native title asserted is not a matter of speculation. The facts have been asserted and the case has been determined on the footing that those facts could be maintained.

Your Honours, could we move then to the second part of our submissions and that concerns pastoral leases and their effect. Our submissions in this regard involve three broad propositions. Firstly, that the grant of a Crown lease necessarily extinguishes native title. Secondly, that the pastoral leases are true leases and by that we mean they necessarily, in their nature, import the incidents associated with the common law conception of a lease. Thirdly, that the pastoral leases were effective from the moment of the grant and did not depend upon entry into possession.

GUMMOW J: Well, that would not be a common law characteristic of a lease, would it?

MR KEANE: No, and, your Honour, in our written submissions we refer to an article by Professor Enid Campbell where she makes that point and we make our point by reference to section 6(2) of the 1910 Land Act and the 1962 Land Act.

KIRBY J: Why is the point that Justice McHugh made earlier not an important one given the history of Australia, given the history of pastoral interest, given the history of originally the Crown and then the statutes which provided for the grant of pastoral leases that one should just look at them as sui generis and not, as it were, subsumed into feudal tenure notions but look at them as a creature of Australian statute in Australian conditions with peculiarities that are to be looked at in the context of the statute and for the purpose for which they were granted? Is that not the more sensible approach which is a legally consistent one and one that focuses on the statute which, relevantly to this case, is the source of the grant?

MR KEANE: Your Honour, there are a number of things we would say about that. The first thing we should say about it, I suppose, is, with respect, to refer to authority. There is authority both contemporaneous, or nearly contemporaneous with the Pastoral Leases Act 1869 in Queensland of which the later Acts were developments. Authority running up to decisions of this Court in American Dairy Queen v Blue Rio and a decision of the New South Wales Court of Appeal to which your Honour was a party, the Minister for Lands v McPherson, all of which affirm the proposition that where the legislature in legislation like this has chosen to use the terminology of lease, then the Court should proceed on the footing that the incidents of the common law concept should be imported, save to the extent that they are excluded by the provisions of the statute.

McHUGH J: Yes, but Mabo [No 2] makes us face up to the fact that all our conceptions of property law prior to 1992 were mislead. We are dealing with some of these pastoral leases over hundreds of square miles of land.

MR KEANE: That is true.

McHUGH J: It is very difficult to believe that the legislature intended to give exclusive possession over these lands so that nobody could go across them. Was Kidman in his great cattle drives a trespasser when he drove huge herds of cattle thousands of miles? Are the local people in towns in Queensland, when they ride their horses for dozens of miles each day across unfenced land, across these pastoral leases, are they all trespassers when they turn their horses out to spell? Are they infringing the rights of the leaseholders?

MR KEANE: Your Honour, the answer to that question has been given, in this Court, in the decision of Yandama Pastoral Co v Mundi Mundi Pastoral Co, and the answer was, yes, they are trespassers.

KIRBY J: But Kidman and the others did not have the claim to title, which this Court in Mabo [No 2] has now indicated the Aboriginal people do, and therefore these appellants are in a different position to those who, as it were, were working within the rubric of feudal law; they had their claim.

MR KEANE: Your Honour, can I answer your Honour’s question and come back to something that Justice McHugh raised with us, and that is to say that Mabo [No 2] constituted an instruction to throw away Megarry and Wade.

BRENNAN CJ: That comes as a great surprise to me, Mr Solicitor.

MR KEANE: It would come - with respect, your Honour, it is not such an instruction. In our respectful submission, Mabo [No 2] accommodates native title to the common law. It does not abrogate the common law to give effect to native title.

McHUGH J: But the one thing it does show, if I can just interrupt you, is that it shows that one can have title to land without grant from the Crown. Now, that was a new conception.

MR KEANE: One could recognise that the radical title of the Crown, the route title, the power of the Crown, assumed to inform and give effect to all titles granted within that system. It recognised that that title might be subject to a burden in favour of the original inhabitants. It then recognised that because those interests had to be accommodated with the exercise of the sovereign power, that they were vulnerable, and it is the vulnerability to extinction which is the subject of the observations that were made at page 68 and page 110 of Mabo [No 2]. And it is the vulnerability, with respect, of native title which, in fact, formed one of the planks for this Court’s decision in the joint judgment in Western Australia v The Commonwealth, for recognising the power of the Commonwealth to make laws vindicating that title and protecting it.

Your Honour, we had not finished what we wanted to say in relation to your Honour’s question because, as we say with the greatest respect, the thrust of these parts of Mabo [No 2] is not to say that the common law has been radically changed, rather that the common law recognises native title, but that native title’s susceptibility to extinguishment is itself a function of the common law and of the tenures that are granted by the sovereign and recognised as having effect within the system of tenures.

Now, in relation to that, your Honour says it would be passing strange if those who walk over a pastoral lease were regarded as trespassers. The answer is, and the answer has been given consistently since 1870 in decisions of the Supreme Court of Queensland on the question and culminating in the decision of this Court in Yandama Pastoral Co v Mundi Mundi Co, has been to the effect that pastoral leases do confer a right of exclusive possession. Even though it may be said - and our learned friends, indeed, make this one of the linchpins of their argument - that something less might have done the job, looking back with the advantage of 150 years of hindsight, something less might have done the job; something less might have satisfied the desires of the pastoralists, who were agitating in New South Wales in the 1830s and 1840s for greater security of tenure, something less might have satisfied them, but it was not the expedient that was used.

Our respectful submission is that when subsequent Parliaments in 1910 and 1962 continued to use the language of lease, they did so on the footing, recognised by a unanimous decision of this Court in American Dairy Queen v Blue Rio, that they meant what they said, and they spoke of a lease because they wanted it to be a lease, subject to modification by the statute.

McHUGH J: Yes, but it is a question of - it might be a lease, but perhaps it gives no more than exclusive possession in respect of, say, pasturage and what is incidental to it. You can turn off other people who bring their cattle on, and historically that was what was the object of the claims of the squatters.

MR KEANE: Your Honour, in relation to that, that submission was made by our learned friend, Sir Maurice Byers. In relation to that, can we say ‑ ‑ ‑

KIRBY J: Does that not fit more naturally into the history of the facts as we know or assume, that thousands of Aboriginals wandered around these areas - vast, huge areas - undisturbed, uninterrupted.

MR KEANE: No, with respect. In our respectful submission, in view of the history that we have set out in our ‑ ‑ ‑

KIRBY J: You are referring to the reserve policy, are you?

MR KEANE: We are; but also, the recognition from the start by legal authorities in the colony of New South Wales and at Whitehall, that the effect of the pastoral leases was to create a right in the grantees to turn other people off.

KIRBY J: The appellants ask where were these thousands to go if they were all to be turned off as trespassers?

MR KEANE: Your Honour, that was the problem that confronted the authorities here, and, as this Court recognised in its judgment in Western Australia v Commonwealth, and we have set out the relevant passage at page 34 paragraph 57 of our written submissions, this Court recognised that as pastoral leases expanded, concern for the dispossessed Aborigines mounted. As the pastoral leases expanded, dispossessed Aborigines - it occurred; it happened.

BRENNAN CJ: And Aboriginal society was oftentimes destroyed.

MR KEANE: Yes, your Honour.

TOOHEY J: Mr Solicitor, I understand your answer to the question that Justice McHugh put to you, but I am not sure that it entirely comes to grips with the problem that is facing us. It is one thing to say that pastoral leases, or any lease, for that matter, traditionally or historically, carried with it the right to exclusive possession and the right to turn off a whole range of people, whether they were wanting to ride their horses across the property, to walk across or to effect improvements, but all that has been done within the sort of framework of what I might call the conventional property law approach. But when the Court is faced with something that is new, in the sense that the native title and the incidents of native title have been recognised by the Court, somehow the question does not necessarily remain - the question remains - but the answer is not necessarily determined by speaking of exclusive possession and what it is held to have represented in the past in relation to an entirely different regime.

MR KEANE: Your Honour, we would rather put it a little differently than what your Honour is putting to us. We would submit that it is not now appropriate to treat grants which were, when they were made, of clear effect, unambiguous in their terms, unambiguous conferral of a right which was to the benefit of the lessee and created rights to the benefit of the Crown as if they did not, as if we can now retrospectively read them down by some artifice.

McHUGH J: But it is not artifice. We have got to put the best interpretation we can on the legislation. We now have an understanding of the background and of other rights that earlier generation of lawyers did not have. With that new knowledge, what do we do? Do we just jettison it and say we will not interpret the statute in the light of what we now know and our understandings and insights?

MR KEANE: No, your Honour, we approach it with the benefit of the knowledge we have from the past, which was, in relation to matters of land law and land title, that grants were made; that as a matter of history, dare one say it, had an effect.

McHUGH J: But that is the question, what was the effect when one looks ‑ ‑ ‑?

MR KEANE: Your Honour, when one looks at the authorities, when one looks at the history of the discussion of the effect of these and the various passages that we have set out in our written submissions, when one looks at the decisions of the courts in the 1870s, when one looks at the decisions of the courts in the early years of the 20th century, including decisions of this Court, when one looks at the decision in American Dairy Queen v Blue Rio, there can be no doubt at all that, with respect, it is too late in the day to say that the grant of leases was not effective in its terms.

Now, if it be said that it is different because these are pastoral leases, then we say there is no suggestion that the legislature sought to make them something different. It made them leases. The leases themselves speak in terms of demise. Section 6(2) speaks in terms of the granting of an estate or an interest and it is not to the point, and bringing all our knowledge and insights to bear and our knowledge of the common law in relation to land law, we can say that to say that a lease is granted for a particular purpose is not to cut down and has never been to cut down the nature of what is granted to that end.

Our learned friends for the Thayorre referred to Radaich v Smith 101 CLR. Radaich v Smith was the case of a grant of a lease for the conduct of a milk bar. Many leases effective in their terms are conferred on the footing that they are for particular limited purposes, but there is no question it is the nature of the rights they grant.

McHUGH J: Take a mining lease, for example: it might be a lease over minerals on land on which the fee simple is held by a private citizen. Now, it is one thing to construe the lease is giving exclusive possession of the minerals. Does it mean that the owner of fee simple has no right to walk across the areas that lead up to where the mining tenement is?

MR KEANE: Those are all matters that are the subject of statutes, your Honour. They are addressed by statutes so that the anomalies are removed. If it had not been for the various pieces of legislation which vested those minerals in the Crown and enabled the Crown to make grants of them independently of the rest of the freehold, the owners would own them.

McHUGH J: Yes, but that is not the point I make. The point I am making is that you get a lease in respect of those minerals, the rights of access to them, but does it mean that the owner in the fee simple has got no rights to the surface?

MR KEANE: No, your Honour, he has still got rights to move over the surface save to the extent that they are taken away by statute. Your Honour, may we say this, with respect - and it takes up a point your Honour Justice Kirby raised both yesterday and today - we say this with the greatest respect, the adjustment of these rights beyond the application of common law principles as truly expounded in Mabo [No 2] is, with respect, a matter for the Parliament, and one can look back and one can look back and see great injustice, but that does not mean, with respect, that one can try to remedy it retrospectively by confining grants that were at the time they were made effective according to their terms and well understood by the courts of common law to be effective in those terms.

McHUGH J: Yes, but that is not what one is about. For maybe a century lawyers understood these terms, “conditional purchase”, “perpetual leaseholds” as embodying common law conceptions of tenure, but it may be that we have got to look at them all afresh again to see what they really do, what rights they really created, having regard to the history of the country, having regard to the terms of the statutes and, if necessary, borrowing on common law conceptions.

MR KEANE: Your Honour, can I say two things to respond to that. The first is - and I will not say it again; I will not repeat it again - simply that, in our respectful submission, Mabo [No 2] sets out the approach, and the approach is to apply common law principle, not to modify common law principle. Once one makes the adjustment that one recognises that the radical title of the Crown was, until that title was exercised, either to appropriate an interest to the Crown or to confer an interest on someone else was burdened with the native title.

The second thing we would wish to say - and this really relates not to your Honour’s last question but to the exchange that your Honour had with some of our learned friends yesterday in relation to the statutory basis of the leases under the Land Act - that Crown land may be a defined term under the Land Act does not address the question, much less answer it, whether the common law is to attribute to the Crown the radical title only or absolute ownership. Your Honour, that that is so is made clear in Mabo [No 2] at page 66 point 2. To say that Crown land is a matter of definition is not to answer the question that needs to be answered. That question falls to be answered by asking has something occurred; has there been an exercise of the radical title which has taken something to the Crown which has appropriated a benefit to the Crown or which has conferred a right on others inconsistent with native title?

As to that, your Honour the Chief Justice put a proposition to our learned friend Mr Sofronoff yesterday which was to the effect that assuming that the Crown does not have a proprietary reversion because of the statutory operation of the Act, is it the case that we are talking about rights that derive from statutory power rather than proprietary interest. Can we say as to that firstly that, with the greatest respect, we would not see the fact that the source of rights in the Crown are sourced in statute rather than in a title, a reversion sought to be inferred from statute, alters the position that there is the exercise of beneficial rights in favour of the Crown.

BRENNAN CJ: It would alter it very substantially, would it not? Would it not mean that you would have a statutory power of the Crown but you would have what would otherwise be regarded as a reversionary proprietary right in the native title holders. So that the native title holders would then be, so far as the common law was concerned, the landlords of the pastoral lessees.

MR KEANE: No, your Honour, in our respectful submission, the position would be that, because the exercise of the powers conferred on the Crown are not exercised disinterestedly, because, for example, the Crown at the creation of the lease becomes entitled to rent, it is expanding its title beyond the bare legal title. Your Honour, can we give an example beyond that of a case where, if a lessee under a pastoral lease were to start destroying the improvements or were to set fire to timber on the property or, because they were an admirer of Scipio Africanus, started to sow the land to salt, the Crown could get an injunction to restrain that voluntary waste to protect its reversion.

BRENNAN CJ: The Crown can, so long as it has the reversion.

MR KEANE: Quite.

DAWSON J: What his Honour said to you is right if the contentions - startling as it might be - put against you are correct.

MR KEANE: Yes. What we wish to draw attention to is that the Crown’s exercise of its powers are not disinterested and secondly, that though it may not be necessary to postulate a reversion to feed the title, that does not mean it is inappropriate to analyse the situation in terms of a reversion which reflects the interest of the Crown beyond the mere radical title.

BRENNAN CJ: Yes. That is your answer really to the proposition that these are questions of power only.

MR KEANE: Yes.

BRENNAN CJ: And one of the strengths of native title is that it is recognised as common law title. Once we start to look at the functions of statute then new considerations enter, but the problem of distinguishing between a proprietary reversion and a power only seems to me to be quite significant because if it were a power only and the beneficial title of that time vested in native title holders, one could not postulate that the power could be exercised otherwise than with regard to the interests of the beneficial owners. That would mean, for example, that questions of enforcement of forfeiture, breaches of condition, compliance in terms of the lease and so forth would have to be considered by reference to the interests of those whose interest may lie in the forfeiture of the leases.

MR KEANE: Your Honour, to suggest that possibility raises what we submit is the unlikely consequence, that the exercise of those powers which, as we say, are exercised not in a disinterested way on the part of the Crown, has been conditioned by the necessity to act with solicitude for the interests of the native title holders.

BRENNAN CJ: Well, that might not be historically supported, although I understand what you are saying.

DAWSON J: Before you pass on, you seem to accept - at least you did not contest the proposition - that a statute should be construed according to knowledge which we now have which was not had at the time the statute was passed rather than be construed in accordance with the understanding of the words that would have been had at the time. Now, do you accept that proposition that was put to you?

MR KEANE: Well, no, we do not.

DAWSON J: No, I thought you did not.

MR KEANE: What we were doing, with respect, is accepting that we now know something more about the common law but that is what ‑ ‑ ‑

DAWSON J: But the statute is to be construed in accordance with the knowledge of the time.

MR KEANE: And in accordance with its clear terms and what ‑ ‑ ‑

KIRBY J: Is that not a subjective view of the purpose of Parliament? Are we not looking objectively at what Parliament has provided to fit it into the law in its totality as we now understand it?

MR KEANE: We are, your Honour, and we can identify it ‑ ‑ ‑

KIRBY J: Is that not the objective theory that we have to observe?

MR KEANE: It is and we can identify the mischief at which it was directed and the language which was used to meet the mischief and to the extent that we can refer to extraneous materials to inform us and instruct us in relation to the effect of the words that were used, we can do all that. We can see the context in which it occurred and we can be in no doubt as to the effect of what was done.

McHUGH J: Do you accept the passage at page 68 in Mabo about the way in which native title is extinguished or is it your argument that irrespective of the nature of the lease, the fact that the Crown - that the rent under the lease is a debt due to the Crown, for example, under section 127 of the 1910 Act, itself is inconsistent with native title?

MR KEANE: Your Honour, can we say as to the first point, yes, we do accept what is at page 68 point 2. We accept it and we rely upon it, with respect, because as is apparent from what appears in relation to the particular leases in question which is really dealt with at the beginning of page 71 at about point 8 where his Honour the Chief Justice said in the last sentence of the penultimate paragraph:

Whatever native title had been enjoyed in this parcel of land, that title was extinguished by the granting or renewal of the lease.

Those were leases granted under the Land Act, different sections of the Land Act but under the Land Act and we adopt, with respect, the view that they were effective to extinguish native title.

McHUGH J: But is it the terms of the lease that does it, the nature of the lease, or is it the act of the Crown in granting?

MR KEANE: Your Honour, one can only define the act of the Crown by looking at its terms but it is the act of the Crown that does it. One is not, according to Mabo [No 2], concerned to identify the possibility of extinguishment over time. Over a period one looks at whether at a time, at a given moment, there has been an act by way of a grant which, by virtue of its terms, precludes the continued recognition by the common law of the pre‑existing burden on the radical title.

McHUGH J: Well, on that basis then, would a lease for a day by the Crown extinguish native title?

MR KEANE: Yes, your Honour, for the same reason that in one of the cases we cite, a former Justice of this Court held or said that a lease for a day or a week or however short a term is nevertheless a lease so long as it confers exclusive possession. These are the tools with which we work and they are not the tools which Mabo [No 2] says we should jettison.

KIRBY J: I am surprised to hear you say that you look at the terms of the lease because I thought your theory was claim of support for the radical title, then the mere fact of the assertion of the Crown’s rights converts the radical title into a claim to dominium, whatever may be the exact grant that follows.

MR KEANE: Your Honour, one has to look at the grant. I mean, there is not a common form. I mean, there are different kinds of grants. There are fee simples, there are leases, there are reservations for road purposes, for example. Now, in relation to that, where Mabo [No 2] tells us that would not be sufficient to extinguish native title that is because, in our respectful submission, there has not been the creation, by grant, of a right to do something with the land or with its possession. We do submit, and we hope to be clear about this, that it is the grant that is relevant, but one must look at the terms of the grant to see with it effects - what it effects as well as what it affects.

Your Honours, in relation to the operation of the Land Act and the extent to which it is correct to say that subject to express provision to the contrary it creates a relationship of landlord and tenant which imports the incidence of that relationship at common law. Your Honour Justice Gummow raised with our learned friend, Mr Sofronoff, yesterday section 299 of the 1962 Act.

GUMMOW J: There was a similar section in the 1910 Act, I think.

MR KEANE: There was, your Honour, and, in fact, that was section 135 and, indeed, precursors in section - or earlier provisions to similar effect. Your Honour, when one looks at the history - and we will take your Honour to it - it does appear that the concern at which section 299 was directed was the possibility that in the absence of that provision the Crown might deal with the balance of the term, that is to say, rather than going back advertising the property as being available and giving everybody the chance to apply for it.

GUMMOW J: Well, there is a Privy Council case on the point, is there not? Flavelle in the 1880s, I think, the upshot of which I think is what you have said. You have got to go back to square one, as it were, and start again. The Crown has to start again.

MR KEANE: The Crown has to start again, quite, and it was necessary to make the point that the Crown had to do that. In other words, section 299, had to take something away from the Crown, and it does that rather than giving it something else, but it does it in circumstances which really are predicated upon an assumption that the Crown had something to deal with apart from section 299. If we can go to the history, the first bit of the history that we would like to go to is section 127 of the 1897 Land Act which your Honours will find in volume 2 of the joint legislation book. It is in the 1897 Act, which your Honours will have to go about a third of the way into the bundle.

BRENNAN CJ: What section number, Mr Solicitor?

MR KEANE: Section 127, and that is the provision which is to the effect that:

If the lease of any selection is determined by forfeiture or otherwise before the expiration of the term thereof, the land comprised therein may be proclaimed open for selection for the remainder of the term of the lease on the same terms as those then applicable thereto, or may be proclaimed open for selection or occupation in any manner in which Crown lands may be selected or occupied.

That section contemplated the continuance of the balance of the term that had been forfeited. Section 299 and section 135 of the 1910 Act made contrary provision. Those were the sections that made the Crown go back and start again rather than dealing with the unexpired portion of the term.

TOOHEY J: I am not sure that I am following this, Mr Solicitor. What do you say that section 299 does that would not have been the position had the section simply not been in the Act?

MR KEANE: The Crown might have acted as it could have acted under section 127 of the 1897 Act, which is to simply deal with the balance of the term.

TOOHEY J: But the land absent section 299, on the determination of the lease, the land would then answer the description of unalienated Crown land or Crown land, depending how the statute is framed.

MR KEANE: That is because the section says so. It deals with the specific case of forfeiture. It does not deal with the case of expiration in accordance with just time, effluxion of time.

TOOHEY J: I am still not clear about this. If the lease were forfeited, would the land then not simply be Crown land by virtue of the fact that it is unalienated?

MR KEANE: Your Honour, the point is that the legislature seems to have been proceeding on the assumption that there was something left to sell. In other words, it does ‑ ‑ ‑

TOOHEY J: Something left in whom to sell?

MR KEANE: In the Crown, in the Crown to deal with.

TOOHEY J: You mean something in the balance of the lease?

MR KEANE: Something which it is not inappropriate to identify as a reversion.

TOOHEY J: It is hard to see how it can then answer the description of anything but Crown land.

MR KEANE: But, your Honour, it would not be Crown land as defined because it is Crown land of which there is a lease, unless one has a specific provision like section 299 to tell you what happens to counter provisions like section 127 of the 1897 Act.

TOOHEY J: Yes. I suppose it depends really on how you read the definition of Crown land which the Chief Justice has just drawn my attention to, one of the characteristics. The land is not subject to any lease or licence lawfully granted, but I would have thought that once the lease were forfeited that there was no lease in existence and, therefore, the land was Crown land because no relevant exception applied.

MR KEANE: That would certainly be the case where there is an expiry by effluxion of time; it might not have been the case where the lease was surrendered or where it was forfeited. In the case of surrender, the usual analysis is that the lesser estate would merge in the greater, so you would not need something specific to tell you about that, but, in the case of forfeiture, which is the particular thing dealt with in 299, it is the provision which tells you that it reverts to the Crown and becomes Crown land again, which makes the Crown go back and start again, as opposed to the previous provisions which plainly contemplated the Crown had something to deal with.

TOOHEY J: Yes, thank you.

KIRBY J: Where do we find section 299?

MR KEANE: It is in volume 4, your Honours, of the legislation book, and I think the whole of that volume is devoted to the 1962 Act.

GUMMOW J: It is page 586 of volume 4.

MR KEANE: Your Honours, that is what we wish to say about the general question of the operation of the common law, as expounded in Mabo [No 2]. We submit next that the pastoral leases are truly leases with the incidents associated with the common law conception of a lease. We realise we have said something about this to your Honours already and hopefully we will not repeat ourselves, but can we just ask your Honours to note the material terms of each lease can be found at page 4 of our written submissions, and the statutory provisions are at page 41 of our written submissions. In our respectful submission, as we have said, the use of the terminology and the language of the leases, which are in terms “to lease and demise”, in the leases and under the Acts under which they were granted, confirms that they had the incidents of corresponding interests at common law modified by the relevant provisions of the Act. That proposition is the proposition enunciated by your Honour the Chief Justice in American Dairy Queen v Blue Rio and a proposition in similar terms was enunciated by Justice Mason, as his Honour then was, with the other members of the Court agreeing.

In our respectful submission, that proposition is securely established by authority and, with respect, we do not apprehend that those authorities are challenged. The authorities to which we refer are collected at page 37 of our written submissions in paragraphs 65 to 67, paragraph 69 and at page 48 paragraph 85.

BRENNAN CJ: Have you assembled the authorities that deal with the leases granted under statute in Australia being contractual in nature?

MR KEANE: They are referred to. I think O’Keefe v Williams ‑ ‑ ‑

BRENNAN CJ: O’Keefe v Williams, I think, is perhaps one of the clearest ones.

MR KEANE: Yes, your Honour, and we refer to that - it is, I think, dealt with in a greater detail in the Commonwealth’s submissions. We refer to it, not with any disrespect, but as in paragraph 69 and footnote 120, where we also refer to Yandama Pastoral.

GUMMOW J: Where does it come out of the 1910 or the latest statute that that common law characteristic did not apply ..... that common law characteristic that required entry into possession? You say, as I understand, that is one common law characteristic which is not adopted.

MR KEANE: We do, and we say that is ‑ ‑ ‑

GUMMOW J: Why is that?

MR KEANE: That is the specific consequence of section 6(2) of each of the 1910 and 1962 Acts. Your Honour, we deal with the point at paragraph 70 where we recognise the common law position, and we set out the relevant passage from the article by Professor Enid Campbell ‑ ‑ ‑

GUMMOW J: We know....of season because it was not an estate.

MR KEANE: And the 1910 Act and the 1962 Act are in materially similar terms. We rely upon section 6(2) which says in terms:

The grant or 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 -

that is to say, “so made in the prescribed form”:

shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated.

With respect to our learned friends for the Thayorre People, with respect, this is not concerned with matters of form. It expressly provides for effect to be given to the lease so made, and it is on the making of the lease in the prescribed form that the estate or interest is conveyed.

GUMMOW J: There was no estate.

MR KEANE: The statute ordains there shall be.

GUMMOW J: Well, exactly, so we come back to this question that it is a strange creature that is being brought forth here.

MR KEANE: It is. But the statute ordains that it shall be so and we should also mention that the forms of the lease which your Honours were taken to yesterday do not provide for execution by the lessee. The scheme is, of course, that applicants apply for the grant of a lease and the lease is then granted, but the lease itself does not involve execution by the lessees.

GUMMOW J: So the lessees’ covenants must come out of the statute.

BRENNAN CJ: Coupled with the application.

MR KEANE: Yes, and it is that scheme which was identified I think in O’Keefe v Williams as being the basis for the view that there is the contractual relationship.

GUMMOW J: There are two grants under the 1910 Act. One is before and one is after the changes in the 1916 Act. Is there any significance that flows from that? The 1910 Act seems to have been significantly changed in 1916. One of these leases precedes and the other postdates it.

MR KEANE: Your Honour, I certainly do not apprehend that there is any material consequence.

GUMMOW J: And the grants in each case refer to regulations made under the Act. Are there any relevant regulations we should know about? I am not suggesting the answer may be immediately available.

MR KEANE: Just this, your Honour, that the regulations prescribe the form in which the leases are issued.

GUMMOW J: But there is nothing of the sort of regulation that Mr Sher was taking us to in relation to the South Australian system?

MR KEANE: I understand not, your Honour.

BRENNAN CJ: It seems as though that regulation of the form is available to you, Mr Solicitor.

MR KEANE: Your Honours, we have got it. It is not in the record. We will have copies made and we will distribute them to your Honours and our learned friends.

GUMMOW J: That is the regulations as they stood at both dates?

MR KEANE: Your Honour, we have them under the 1910 Act.

GUMMOW J: Yes, but before and after the 1916 amendments.

MR KEANE: We will get them, your Honour, if there was any change.

BRENNAN CJ: Mr Solicitor, whilst that material is being looked at, could you provide us with a note of the relevant sections of the 1910 and the 1962 Act with deal with the surrender of pastoral leases to the Crown. It can be done later.

MR KEANE: We will attend to that, if your Honour please. Just to come back to finish the point we were trying to make with your Honour Justice Gummow, the efficacy of these leases does not depend on possession, and we submit that is the clear effect of the terms of the statute. Our learned friend, Sir Maurice Byers, says it is an extraordinary thing that the issue of a piece of paper in Brisbane could have an operation in north Queensland, but that is how a sovereign power is exercised.

If we can now turn to the third section of our oral submissions. Your Honours, both sets of appellants contend for the proposition that the common law should read down grants previously made in the exercise of sovereign power, that this Court should do that as a matter of judicial choice now available to it and it should do so particularly on the footing that the governmental purpose sought to be achieved might have been served equally or by the grant of lesser rights.

In this regard the Wik Peoples in their submissions in reply suggest that it is anomalous for us and the other respondents to contend that the common law should produce a result contrary to that achieved for the future by the Commonwealth Parliament in the Native Title Act whereby, as it is said, for the future it is not competent for the Crown to defeat native title by the grant of a pastoral lease over land in respect of which native title otherwise subsists. The respondents - certainly the first and third respondents for whom we appear - do contend that the common law did produce that contrary result and it is, with respect, precisely because native title was vulnerable to extinguishment in this way at common law that legislative intervention was necessary to protect it for the future.

Our learned friend’s submissions involve a number of further elements that are variously invoked to support it. One of those - and this brings me back to a partially completed answer to your Honour Justice McHugh earlier - is the suggestion that it was the common understanding in this field of discourse that pastoral leases did not confer rights to exclude Aborigines from pastoral leases. Now, in our respectful submission, that submission is clearly incorrect and we have set out the history at paragraphs 31 to 67 of our submissions.

It was also submitted, particularly by our learned friends for the Thayorre People, that the right conferred by the pastoral lease is one of agistment because it is for pastoral purposes only. Your Honours, can we mention - not that we submit that it makes any difference to this case - but the Holroyd leases were not so expressed. It is the Mitchellton lease that is so expressed. We say that for clarification because we do not say there should be different results. We submit, with respect, that to describe the purpose for which the lease was granted establishes its permitted use but does not qualify that which was granted and we have given your Honours the reference to Radaich v Smith which is itself a sample of many cases where a lease truly so called and operating as such is one which is given for a specified purpose.

There are a number of other arguments of principle that are advanced rather more by interveners than by our learned friends for the Wik and Thayorre and we would wish to deal with those. Can we say firstly that they are advanced to support a reading down of the grant. The first is that native title and title under grant from the sovereign derive equal validity from the common law. Now, that contention is advanced by the Thayorre People in their written submissions in paragraphs 4.09 and 21. In our respectful submission, it is not supported by and is, indeed, contradicted in terms of the passages from Mabo [No 2] and Western Australia v The Commonwealth which we have referred to in our submissions in so far as it suggests that common law regards native title as of the same potency as a grant by the sovereign.

With respect, it cannot be correct in principle if both rights are said to be rights to exclude all others and it is to be recalled, in our respectful submission, that the native rights claim in this case are such, as I said, to invalidate dealings with the land said to be invalid because they are inconsistent with the rights asserted. Our learned friends ‑ ‑ ‑

BRENNAN CJ: There is any difference, is there, in the question of potency? Absent extinguishment, native title is enforceable at common law.

MR KEANE: Yes.

BRENNAN CJ: The question is whether or not it has been extinguished.

MR KEANE: Yes.

BRENNAN CJ: It is not quite right to say that it is not equal in potency of the common law. It is just simply that it is liable to extinguishment at common law.

DAWSON J: But you have to look at native title in the context of the common law.

MR KEANE: Yes, and its vulnerability.

BRENNAN CJ: Well, it is vulnerable.

MR KEANE: Your Honours, the submission was advanced by ATSIC in its written submissions at page 6, and orally by Mr Doyle, and it is a submission which, we notice, is advanced also in the Wik reply at paragraphs 30 to 32, that the existence and persistence of native title is to be determined by reference to a study of whether the native title is of a kind which could survive according to the custom of the particular Aboriginal people involved. Now, we submit, with respect, that is a misconception of what was established in Mabo [No 2]. It is the common law which determines the extent to which, and the conditions on which, the rights of occupation and use of land by indigenous people may be given effect in the courts. And, in testing the inconsistency for this purpose one looks at the position at the moment of the exercise of the sovereign power, the moment of grant, not over time. We submit that approach is the approach supported by Mabo [No 2] at page 68 and at page 110 in the judgment of Justices Gaudron and Deane.

Your Honours, can we submit that is not surprising as a result. The contrary would be surprising. If, in every case of surrender, forfeiture, or expiration of a lease, native title were to revive until a further grant was made, that would be a surprising result. It would hardly reflect a coherent system of land management and land title underlying it. We are conscious that our learned friend, Mr Doyle, made a submission that there may be native title of a more attenuated kind which did not involve use and possession by the claimants to the exclusion of others.

Now, as to that, we submit such title is not raised in this case but, in any event, it would not be native title of a kind which would form a basis for which the common law would recognise as impugning the validity of dealings involving use and possession, and in that regard in relation to what was said by reference to what your Honour Justice Toohey said about the necessity for physical presence in Mabo [No 2] we would, with respect, adopt. Where we would depart from our learned friend, Mr Doyle, is where he sought to make of the passage where your Honour said the physical presence was necessary, we submit that that means the physical presence is necessary though it may not be sufficient. It must also be meaningful in terms of customs, native customs, but it is not sufficient to say there is a customary meaningful connection which does not involve physical presence and, in our respectful submission, to seek to read your Honour’s observations in that way is, with respect, to misread them.

Then the last thing we should say about that is that on this approach it can be said that the common law would recognise a continuing native title, even after the grant of a fee simple and that, we would submit with respect, is a conclusion from which one intuitively recoils, although it is not a concession which all those appearing for the appellants and their other interests make. That is because it is contended that inconsistent rights to access or occupancy, one deriving from the common law’s recognition of native title and the other deriving from a grant by the sovereign, may continue to exist concurrently until the actual exercise by the grantee of his or her rights. This argument is a common thread through the arguments of the appellants and those who intervene in support of them. Once again, with respect, we submit that is inconsistent with the passages we have cited from Mabo [No 2] and Western Australia v The Commonwealth, which affirmed that it is the sovereign’s act in making the grant as distinct from the grantee’s act in making use of it which extinguishes the inconsistent right.

We submit that it is wrong in principle as well as contrary to authority because, in our respectful submission, legal rights of their nature can be recognised and known before they are exercised and that they may not be exercised to their fullest extent does not mean that they abate as a result, and in practical terms, as opposed to questions of principle, in our respectful submission, it is an unattractive proposition to assert that native title survives pastoral leases to the extent, and only to the extent, that Aborigines have not been turned off properties.

TOOHEY J: Mr Solicitor, is exclusive possession the key, on your argument, to the extinguishment of native title? Is that the excluding of anyone else than the lessee from possession of the land that constitutes the extinguishment of the title?

MR KEANE: Your Honour, it is an essential element; it is exclusive possession and the enhancement of the Crown’s radical title.

TOOHEY J: Well, I was putting it a bit more strongly than that, at least I intended to. Is it the - I used the word “key”. Is that what tells you whether title has been extinguished or not?

MR KEANE: Your Honour, we submit it does tell you that there is the right conferred by the sovereign on the grantee to exclude all others, and with that right, rights of others to be on the premises cannot be recognised by the common law.

BRENNAN CJ: What do you say about native title rights which are not necessarily dependent upon a right of access?

MR KEANE: Your Honour, we say, as we have said firstly, that they are not raised here. Secondly, in so far as it is relevant to answer your Honour’s question because your Honour asks it, we say that the common law does not recognise rights that do not involve use of or some dealing with the property. There are no cases which suggest that the common law would inhibit a dealing with property to vindicate a religious or sentimental attachment.

BRENNAN CJ: I do not know. Say, for example, you have a pastoral property on which, with the full consent of the lessee, there is a community of Aboriginal people living in the traditional lifestyle. According to the laws and customs, part of that property is either sacred or, for other reasons, not to be entered upon. Do you say that one who was traditionally the custodian of the area could not seek an injunction to restrain others of the community from breaching that traditional right?

MR KEANE: To restrain others within the Aboriginal community?

BRENNAN CJ: Yes.

MR KEANE: Your Honour, yes, we would say that rights of that kind are more closely akin to and analogous with rights of those who belong to voluntary societies, and in so far as those voluntary societies regulate their conduct on the basis of their adherence consensually to a particular pursuit, the courts would not intervene.

BRENNAN CJ: Perhaps it does not arise in this case, but that seems to require a fracturing of the unity of Aboriginal law and custom simply in order to conform with some artificial division in our own legal thinking derived from the common law system.

MR KEANE: Your Honour will appreciate we put it on the footing that it is simply that the extent to which the common law will recognise, and give effect to by its remedies, that kind of interest is something which is a feature of the common law.

BRENNAN CJ: I do not mean to take your time on this but I do not understand why it is that a use of land which is governed by native title is not such an interest that falls within the Amodu Tijan observations as to recognition by the common law.

MR KEANE: Well, your Honour, as we say, there is no suggestion in any authority which we have seen of recognition of native title of that order.

BRENNAN CJ: No, there is not. Perhaps the problem has not arisen.

MR KEANE: Your Honour, we say this with the greatest respect, there are difficulties in the courts giving effect to, by their orders, those privately held views so as to, on the footing of those privately held views, organise the management of land and other property within the community. Your Honours, one of the other things that we wished to mention, one of the other arguments that is invoked to support this reading down retrospectively, as we would put it, of the grants that were made, is put by the Northern Land Council and the Thayorre People. They urge an approach to the construction of the grants by reference to the principle of non‑derogation from grant or non‑expropriation.

This is dealt with in the Northern Land Council’s submissions at paragraph 24 and in the Kimberley Land Council submissions, appendix A, paragraph 62. It is our submission that that approach is inconsistent with the appreciation of the vulnerability of native title recognised in Mabo [No 2] and Western Australian and the Commonwealth but, in principle, it would seem to have no application in relation to native title because it is not possible to postulate a grant from the sovereign as the source of the right from which one may not derogate or from which one must be taken in the absence of express language not to have derogated. For the same reasons we submit that decisions such as the Attorney-General for the Isle of Man v Mulchreest referred to by the Northern Land Council in paragraphs 28 to 31 of its submissions and in the Kimberley Land Council submissions in appendix A, paragraph 66 to 69, do not assist.

Mylchreest’s Case is (1879) 4 AC 294. It is a case cited in support of a view of customary rights, but when one looks at it one can see, as one can see from the last three or four lines of the headnote, that it is a case where what was in issue were customary rights which grew up as one of the customary incidents of the tenures, and one can see that those customary rights were, themselves, vindicated on the basis of a presumption of a legal grant in time immemorial. That that is so can be seen from page 300 point 8 about six lines up from the beginning of the last paragraph on the page in the judgment of the Privy Council:

Their Lordships can come to no other conclusion upon this evidence than that the custom has in fact existed during and beyond the period of living memory; and, consequently, that its antiquity, and continued existence from a time when it might have had a valid commencement, ought, unless the contrary appears, to be presumed.

And if one goes over to 304 and reads from the beginning of the first full paragraph on the page of 304 to about point 8, one sees that the basis for sustaining the custom is a presumption of a grant from the lord.

KIRBY J: But is not the theory now, since Mabo [No 2], that that is not something that began in 1992 but is deemed to have always been and that, therefore, this is something that goes back to time immemorial and must now, by this Court, the decision having been made and so many steps taken on the assumption of its correctness, be fitted in somehow to the pre-existing law?

MR KEANE: But not back to time immemorial resulting from a grant so as to ‑ ‑ ‑

KIRBY J: If Aboriginal native title to their rights does not date from time immemorial, what does?

MR KEANE: Well, the reference to time immemorial is a reference to the point at which one can presume a legal grant, as is said there. Our point simply is that that presumption is not available where the postulate, the paramount law, is not available before the accession of sovereignty.

Your Honours, the argument that is put in a variety of ways that we wish to address now is that the requirement that a clear and plain intention that recognition be no longer accorded to native title claims to possession, occupancy and use of land is not satisfied by the grant of a pastoral lease. Could we say in relation to that that it is difficult to avoid the conclusion that the appellants’ arguments and the arguments addressed by the interveners in their interest would deny a clear and plain intention to any grant which is not in explicitly discriminatory language, and that is to erect really an extra fiction in this area where there are some fictions we are familiar with, but that would not be. We say that is the effect of what is said against us, and we refer in that regard to the Wik submissions, paragraphs 2(a) to (e), 49 and 59, and the Thayorre People’s submissions, paragraphs 22 and 23.028.

If that submission were to be accepted, there is no reason to see why it would not apply equally to deny efficacy to the grant of a fee simple as well as to a lease and, as we said before, that is a conclusion from which one instinctively recoils and it fails to appreciate that on the analysis in Mabo [No 2] the rights conferred by the grant or upon the grant leave no room for competing rights such as those asserted in the statement of claim in this case.

KIRBY J: I see the force of that but what is being put to us is that a fee simple and the fencing off of the area, that is the assertion of the plenum dominium, but that when one looks at the statute and when one looks at what happened and when one looks at the history of the country in respect of pastoral leases, that that can live with the native title which this Court declared in Mabo and that, therefore, the problem is one of adjustment of the one with the other and that that is purely a factual matter that has to be sorted out in a way that has not happened here because of the answers to the questions which Justice Drummond provided.

MR KEANE: Your Honour puts to us really the way it is put that it is a matter of fact and looking at what has happened.

KIRBY J: You said there is no reason why a fee simple would not melt before the native title, but I took the submissions of the Wik Peoples to say they accept that if there is a clear grant which is incompatible and inconsistent under the common law and under our legal system, which is the system we are operating within, that is it and they have lost the native title, but their assertion is that as a matter of fact and as a matter of law it is not necessary that that follows in the case of pastoral leases because of their peculiar, rather loose and vast territorial operation.

MR KEANE: But the same point could be made in respect of a very large piece of freehold, of which there are many.

KIRBY J: Yes, but that is to fence people out. That is to assert complete dominium, whereas the notion of pastoral leases, it is asserted, can live compatibly with the exercise, at least of some native title rights. The clash has to be resolved as a matter of fact.

MR KEANE: Your Honour, to say that is not to identify the rights that were granted by the pastoral lease but to invite the Court to adjust them because once it be accepted that there was the exclusive possession granted ‑ ‑ ‑

KIRBY J: I take the force of your point that in Mabo the Court appears - at least there are dicta not holdings which appear to say it is so fragile that the mere fact of the claim, of the exercise, blows away native title. But we are now having to face up to the consequences of Mabo and to see whether or not that is the correct theory.

MR KEANE: Your Honour, we say, with respect, that it simply is not open for the Court now to engage in an adjustment of what was done because it might have been done ‑ ‑ ‑

KIRBY J: Doubtless this was said in the case of Mabo, itself. You say leave it to Parliament, but for 150 years of Australian representative‑elected parliaments it was not done.

MR KEANE: Quite; and the consequences of granting the leases was known as this Court recognised in its judgment in Western Australia v The Commonwealth. The consequence that would be involved in granting rights of exclusive possession which would involve dispossession, was a consequence that was known. We have said what we can say about it in terms of principle but it is an odd thing for a court to adjust rights on the basis that, really, it is left to a grantee and someone else to work it out between themselves as to what the rights are, the usual basis for land title being to ensure that everybody knows who owns what when push comes to shove and we say that in practical terms that is an unattractive proposition because it invites some pushing and shoving.

KIRBY J: Doubtless, these were submissions that were put before Mabo [No 2] was decided. I mean, these are arguments for the courts not taking the step that was taken in Mabo, that that step has been taken and no one has suggested that it should be untaken.

MR KEANE: No, no, quite, your Honour. In our respectful submission, these are not arguments that invite the Court to retreat one iota from Mabo. These are arguments that - we want to make it very, very clear, with respect, these are the arguments which the two joint judgments support. There is no authority to the contrary of the submissions we put. The only question is, in terms of authority, whether the dicta to which we have referred require the result for which we contend. We suggest that they certainly support it and, your Honour, we are not suggesting that one resiles in any way from what Mabo said, but we are saying one has to look at all of it and one cannot treat it as if it were something of a modular thing where one can take one bit and leave the rest.

BRENNAN CJ: We will continue this argument at quarter past two, Mr Solicitor.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN CJ: Yes, Mr Solicitor?

MR KEANE: Your Honours, we have had circulated a set of the regulations in respect of the 1910 Act. We are trying to obtain copies of the regulations that followed the 1916 amendments. We do not have them presently but we will make them available when we can get them and, your Honours, we have also had circulated to your Honours’ associates a copy of a decision in the United States of America and certain parcels of land in San Bernardino County.

Your Honours, we have drawn your Honours’ attention to this decision in reference to Mr Sher’s reference to the decision in United States v Dann. The United States v Dann was the case to which Mr Sher referred which held that a licence granted under what is called the Taylor Grazing Act of the United States Congress was not apt to affect an extinguishment under Article 4 of a particular treaty; the treaty of Ruby Valley. Under that treaty, it was provided by Article 4 that it was further agreed by the parties that the Shoshone country may be worked and ranches established whereever they may be required.

So, that is to say there was a treaty whereby ranchers were permitted in derogation of native title. The question in United States v Dann was whether a licence issued under the Taylor Grazing Act could be held to constitute the establishment of a ranch within the meaning of the treaty and it was held that it was not. The purpose of giving your Honours reference to the United States v San Bernardino is to draw attention to what is said at the bottom of the left-hand column on page 775 and in the right-hand column of 775 where the court observes the distinction drawn by the Act between permits or licences to graze and leases, the point we wish to make is that Dann’s Case is concerned with the licence, not with the lease.

GUMMOW J: Just before you mention that, Mr Solicitor, do these regulations impose any requirement of occupation?

MR KEANE: An obligation to occupy?

GUMMOW J: Yes.

MR KEANE: Your Honour, can we check that? I think the answer is no, but we will check it.

BRENNAN CJ: We seem to have an Act, but no regulations. We have the Land Acts Amendment Act of 1916, I think.

MR KEANE: I beg your Honours’ pardon. The regulations are still being copied. What has been circulated to your Honours is the 1916 amendments that your Honour Justice Gummow referred to earlier. All the regulations are still being copied, including the ones that were made subsequent to that and we will give you those when we get them available.

Your Honours, the last thing we wish to say about the pastoral lease issue relates to the submissions that have been made to the effect that the grants are to be qualified by reason of a fiduciary obligation, and these submissions are made by the Wik Peoples in paragraphs 70 to 73 and by the Thayorre People in paragraphs 18.01, 18.06 and 18.07, and it said that the existence of a fiduciary duty is relevant in this sense, that it affects the approach to construction of the grant, that is to say, it is another way of reading the grant down, another basis for reading it down.

In respect of those submissions we have addressed written submissions to them but can we say shortly that as a matter of principle, in our respectful submission, the test for construction of the grant cannot be set higher on account of a supposed fiduciary duty than it is set because of native title to start with. If the fiduciary duty is founded upon the necessity for solicitude in relation to native title, then one does not construe the grant more strictly because one characterises it as a fiduciary situation than one would where one simply recognises the existence of the native title. Next, it is said to be relevant in the Wik submissions at paragraphs 70 to 72 and the Thayorre submissions at paragraph 26, as giving rise to a constructive trust of the reversion. Your Honours, in so far as our submissions are correct that there has been an exercise by the Crown of sovereign power conferred under the Land Act, that submission that is made against us would be to deny the power of the sovereign effectively to extinguish native title.

KIRBY J: In so far as the Crown acted in respect of these leases, it acted pursuant to a statute of Parliament and had no choice. The fiduciary duty, if it was owed, was owed by the Crown, but I do not think it is suggested, is it, that a fiduciary duty was owed by Parliament.

MR KEANE: I do not think so, your Honour. The basis of the fiduciary duty is not precisely defined in those submissions that we have referred to.

KIRBY J: This draws on Canadian concepts, does it not?

MR KEANE: It is not made clear whether it is owed by the executive or the legislature, and we made our submissions in relation to the American and Canadian cases and our submission is that fiduciary duty there identified derives from dealings with, or undertakings given to, or, in the case of the United States, statutes, which put the executive government in the position of a party who has assumed obligations of that nature.

KIRBY J: But assume the Crown owes the duty to vulnerable subjects such as native people, Aboriginal people. What can it do if Parliament enacts a law that overrides it?

MR KEANE: Well, if Parliament enacts a law that overrides it, cadit quaestio.

KIRBY J: Can one construe the act of Parliament by reference to the Crown’s duty given that the Crown and Parliament for this purpose are different?

MR KEANE: Your Honour, we say you do not construe it more stringently because one postulates a fiduciary duty than one does if one postulates native title that burdens the radical title of the Crown, since the fiduciary obligation itself is dependent upon the fact of a native title - a beneficial interest in someone other than the Crown, in other words and, indeed, a beneficial interest in native peoples. Your Honours, we would submit that both those contentions are inconsistent with the position established in Mabo [No 2] and Western Australia v The Commonwealth that native title may be extinguished by the exercise of sovereign power not conditioned by solicitude for the interests of any particular group. Your Honours, subject to any questions your Honours have, that is all we wish to say about the pastoral lease issue.

If we may pass on then to deal with questions 4 and 5. Our submissions in relation to these questions begin at page 66 of our written submissions. Our submission is that Justice Drummond was correct and we rely upon his reasons. If we could try to summarise that, it is our submission that the Comalco Act, by section 3 - I am sorry, we should really take your Honours to the sections. It is in volume 16 of the joint appeal book, that is, your Honours, not the legislation books, the appeal books. At page 2702 of the volume your Honours will have the Comalco Agreement Act, and we submit that as a matter of construction section 3 of that Act, which is at page 2702, when read with clause 8 of the agreement, which your Honours will find at page 2708, we submit that the effect of those provisions is to impose a statutory obligation on the Crown to grant the leases.

Your Honours, as to the question of construction that was adverted to by our learned friends in relation to section 3, we submit that where section 3 refers to:

the making of the Agreement -

and on that event -

the provisions thereof shall have the force of law as though the Agreement were an enactment of this Act -

we submit that the reference to making the agreement is a reference to making the agreement in fact. We submit that no further steps, no process, as it were, of further consideration is contemplated and that the agreement having been made as a fact, then by force of section 3 the agreement, including section 8, operates as if it were a provision of statute. That being so, the Crown was obliged to execute the lease. The point of that for the purposes of questions 4 and 5 is that, so far as procedural fairness is concerned, the command had to be obeyed. No occasion for observing any other requirements of natural justice or other provisions of the law arose and no occasion arose which might have permitted the Crown to take into account duties owed to others.

KIRBY J: Sometimes a provision like that in a statute - take, for example, privative clauses - would be construed to mean lawfully made. Why should that construction not be put on this, given that it is an extraordinary consequence?

MR KEANE: When your Honour says “it is an extraordinary consequence”, what it is is an Act ‑ ‑ ‑

KIRBY J: I say it would be an extraordinary consequence if it were all undone.

MR KEANE: Quite. It would be an extraordinary consequence if the Act, having been made for the purpose of ensuring - the evident purpose, we would submit, of ensuring that whatever legal challenge might have been mounted to it was obviated but, nevertheless, any basis for legal challenge was nevertheless available, a result which we would submit would be as surprising as it would be inconvenient. Alternatively, we submit - and this submission your Honours will find developed at paragraphs 124 to 126 of our submissions at page 73 and, your Honours, this submission is concerned with section 2 which authorised the Premier to make the agreement for the State. This submission is directed to the argument advanced by our learned friends that that did not mean it was mandatory.

In relation to that, our submission is that “authority” in this context meant “required”, and we refer to the passage from Sir Frederick Jordan with whom Justices Davidson and Roper agree in Ex Parte Johnson; Re MacMillan. We have set the passage out at 125 of our submissions. We submit that the context suggests a case where the Parliament intended the agreement be signed and it is a case where, from context, one can see that “authorising” meant “requiring” as Sir Frederick Jordan it might. If that submission be upheld then, similarly, the consequences would follow that no occasion arises for deference to fiduciary duty or for affording a right of hearing as part of some other process or some necessary precondition to obeying the statute.

Your Honours, that is all we wish to say about questions 4 and 5. Your Honours, we have noted the provisions of the 1962 and 1910 Land Act dealing with the question of surrender that your Honour the Chief Justice raised with us, and we hand up 10 copies of those.

BRENNAN CJ: Thank you. These sections.....pastoral leases, do they?

MR KEANE: Yes, your Honour.

BRENNAN CJ: Is there any learning to be had as to the nature or the effect of the surrender upon the estate of the reversioner?

MR KEANE: Your Honour, not in this context. Ordinarily, that is where estate mergers.

BRENNAN CJ: Yes. When the lease falls in, the estate of the reversioner is not expanded, is it? The reversioner simply takes what he had before but then in possession.

MR KEANE: Freed of the term that had been carved out of it, freed of the interest in the lessee.

BRENNAN CJ: Yes, well that may have ceased. What about a surrender? Does that do anything differently? Does that affect the state of a reversioner differently?

MR KEANE: Your Honour, it frees it of those rights which had been carved out of it.

BRENNAN CJ: I am not making myself clear.

MR KEANE: I am sorry, your Honour.

BRENNAN CJ: If, by reason of the statute, it was held that there was no reversion held by the Crown, what would be the effect of a surrender by a Crown lessee? Now, on that hypothesis, on the basis I put to you, there would be a native title unaffected otherwise than by the grant of the leasehold.

MR KEANE: The Crown would then become entitled to possession.

TOOHEY J: Well, you would not have section 295 operating in that situation.

MR KEANE: Section 299, your Honour.

TOOHEY J: Section 299.

MR KEANE: No, I do not think so, your Honour.

TOOHEY J: Although it does speak of forfeiture and something else, I think.

MR KEANE: There are the specific provisions in relation to surrender to which we have referred, your Honours. We would apprehend that it is unlikely that the reference in 299, determination “by forfeiture or other cause” would catch a surrender, it being dealt with specifically. “Forfeiture or other cause” would seem to mean, perhaps, re‑entry for breach.

TOOHEY J: But is there any reason to think that in the case of surrender, absent some provision in the Act itself, that the suggestion I put to you earlier today would not apply, namely, that the land just resumes its status as unalienated Crown land?

MR KEANE: With the Crown in possession of it.

TOOHEY J: Well, yes, to the extent that that adds something.

MR KEANE: In our respectful submission, it would be that the case would be one where bare radical title had been expanded by reason of the

freeing of that radical title, by freeing it of the burden of native title, and we submit that that is not gainsaid by reason of the fact that as a matter of definition it is Crown land again.

TOOHEY J: No, that was not implicit in what I was putting to you that there was some further step of that sort. Merely, as a matter of characterising the status of the land, it would simply be Crown land.

MR KEANE: Crown land, but then the question is, “What is the nature of the title? Is it the radical title or is it something more?”, and we mentioned earlier that in Mabo [No 2] at page 66, the point is made that that question is not resolved by matters of definition.

Your Honour, to return to the point your Honour Justice Gummow raised with us. In relation to a requirement of residence, the position seems to be that as a result of the 1916 amendment to the Land Act, the notification declaring that land was open for application for pastoral lease could declare that an applicant for a preferential pastoral holding ‑ ‑ ‑

GUMMOW J: Yes, that is right.

MR KEANE: ‑ ‑ ‑ could obtain priority by offering that that holding should be subject to a condition of personal residence during the ‑ ‑ ‑

GUMMOW J: That is picked up by section 43(iii).

MR KEANE: Yes, and in fact it is to be found in section 5(d) of the 1916 amendments, and the lease was then subject to a condition of personal residence.

GUMMOW J: Not otherwise?

MR KEANE: Not otherwise, no. Your Honours, those are our submissions.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for the Commonwealth.

MR GRIFFITH: If the Court pleases. Mabo [No 2] is, of course, authority for the proposition that absent extinguishment, native title is enforceable at common law. It also establishes that native title is vulnerable to extinguishment by exercise of the prerogerative or by action and operation of legislation or under legislative authority. So, we would submit to the Court that the issue here is whether or not there has been extinguishment, particularly by reason of the operation of the terms of the relevant leases pursuant to the Queensland law.

Your Honours, it must now be regarded as settled that native title is extinguished by reason of interest created by a grant of an estate in fee simple, although it is not entirely clear to us from some of the submissions which have been filed with the Court that that matter is completely conceded by all those parties making submissions in the contrary interest. We would submit also that it is to be regarded as settled that where there is a lease the same result obtains. In essence, there is no substantive difference between the nature of possession held by a lessee as opposed from the nature of possession held by the whole of a freehold estate, aside from the fact that, of course, the lessee’s possession is limited in duration.

Your Honours, if we may pause at that point and indicate that we have filed today a volume of further submissions, also with a green cover, headed “Written submissions of the Commonwealth in response to other written submissions”. I apologise to the Court for yet another volume; at least it has an original colour, combined with the green of the first volumes, and if your Honours could keep those two green volumes together. May I take your Honours briefly to the index of each volume and explain the ‑ ‑ ‑

BRENNAN CJ: Are these in response to the submissions first filed by the Wik and Thayorre People?

MR GRIFFITH: No. Your Honour, they are in response particularly of submissions filed contemporaneously with the submissions filed by the Commonwealth ‑ ‑ ‑

BRENNAN CJ: I see.

MR GRIFFITH:- - -firstly in respect of the thirteenth respondent, your Honour, the Aboriginal and Torres Strait Islands Commission, Mr Doyle’s clients, which in fact, your Honour, were filed some six days after the due date and read as an answer to our submissions, which were filed on the due date, and also, your Honour, in response to the submissions, if I may mention, by counsel, Mr McIntyre, for the Kimberley Land Council, Mr Sher and Mr Bartlett.

Your Honour, they also are in response to the replies which have been filed and, your Honour, we have adopted the course of handing up the submission to make it otiose for me in detail and by reference particularly to case citations to take your Honours to the material. Other than I might indicate that the case of United States v Dann which was referred to this morning, firstly by Mr Bartlett, is dealt with in paragraph 5.4 on page 23 of the second and thinner volume, where we make the obvious point that the Taylor Grazing Act, United States, does not give a right of exclusive possession. The Act especially provides that it does not affect pre-existing rights. So we would say, your Honour, for that reason, United States v Dann is not relevant.

Your Honours, may I take the Court briefly to the structure of our submissions and that way make it unnecessary for me to recapitulate that which is stated and asserted, and if the Court were to put me on an election which the Commonwealth would accept as comprehensively putting its case in answer to all the points made by the disparate parties, the two appellants, the thirteenth respondent and the interveners who have already made submissions. Your Honour, we have attempted to do this in a comprehensive and complete manner, but because of the disparate lines of approach and attack and argument and the disorder in which the submissions have been presented, in that, as I have mentioned, your Honour, some half in number were contemporaneous or after the filing of our submissions, it has been appropriate to draw our response together in two documents rather than one.

If I may take your Honours first to the index page of the thicker volume, that comprises three pages of index which your Honours may accept as an outline of the Commonwealth’s submissions on these issues. The general issue that the grant of a lease by the Crown extinguishes native title; and the second main issue which has been identified, and namely, that is the contention that a pastoral lease under the terms of the Queensland Act in the Commonwealth submission is properly characterised as a lease and does result in extinguishment.

The course we have followed is that in part 1 in paragraphs 1.1 to 1.11 on page 4 of this document under tab 1 we summarise our contentions. That, in essence, are the propositions which we have put to the Court and desire to maintain as our case on these issues.

We also, your Honours, in this part deal with the issue of the following parts: fiduciary duty and possessory title and the issue of the justiciability of the agreements, but may I indicate to your Honours that I do not intend to address on those paragraphs which are numbered C, D and E on page 4 of our submissions, and the further elucidation which is made in these two documents is relied upon as our submissions in relation to those issues other than the issues going to the nature and operation of the lease.

Your Honours, having made those summary of proposition we then, in part 2 under tab 2, refer to the general principles on recognition of extinguishment of native title, and we let those stand and read for themselves. We also then, in part 3, make our propositions to establish our principal contentions dealing with pastoral leases. Firstly, under part A, “Extinguishment by the grant of a lease”, commencing under tab 3 of the submissions; and under part B, also under tab 3, we make our proposition that pastoral leases are properly characterised as leases.

Logically then, dealing with the material which had been filed up to that time it was appropriate to deal with the disparate, incidental and corroborative points made by those parties, particularly the appellants, and their individual matters of rebuttal are dealt with in the appendix in this part, - Appendix 1 which appears under tab Appendix 1 commencing on page 45 dealing under paragraph A again, the same two paragraphs that appear under tab 3, pastoral leases; firstly dealing with issues of recognition extinguishment of native title general principles. Then, under part B of Appendix 1, pastoral leases, dealing extensively with the arguments which were raised and rebutting the argument which were raised by the written submissions. There is no need for me to refer to part C, fiduciary duties, of this appendix because that, once more, relates to the propositions which we leave to be ones to be made by the written submissions.

Your Honours will then see from (iv) of the index that we have Appendix 2 which is a short description of early land policies and development of pastoral leases. The main purpose of that summary is to establish the proposition that leases for pastoral purposes were so expressed and became established for the purpose of protecting the revenue. The limitation for pastoral purpose was to ensure that the revenue would obtain further revenues in the event that the land was to be applied for a higher use. I will let that appendix speak for itself.

In Appendix 3, if I may take your Honours to that, because we would present that as a useful summary of the legislative indicia which we submit are derived from the terms of the 1962 Act and the 1910 Act, the attention of the Court has been directed particularly to the 1910 Act and the corresponding provisions are listed under paragraph A3.2 on pages 74, 75 to the provisions of the 1962 Act which are dealt with in paragraph A3.1 running from page 73 to page 74. Many of those sections have already been referred to but we indicate there by way of a convenient summary the provisions which may particularly be relied upon as legislative indications that pastoral leases are intended to be leases.

Your Honours, they were our submissions originally filed pursuant to the order of your Honour the Chief Justice. May I now take the Court briefly to the index page of the supplementary volume and explain its structure and relationship. Firstly, dealing with the heading “RESPONSE TO THE WRITTEN SUBMISSIONS OF THE THAYORRE PEOPLE IN REPLY”, may I particularly note paragraphs 1.1 to 1.4 which are a convenient summary of the propositions which we desire to make in our oral submissions to the Court.

If I could make it clear to the Court that the position of the Commonwealth is that any one of the four propositions appearing in paragraph 1.1 if made out is sufficient to establish the relevant inconsistency so that there would be extinguishment. In other words, in as much as it might be suggested that the conferral of the right of exclusive possession is sufficient in itself, it is the submission of the Commonwealth that yes, it is but, even if there is not exclusive possession, if one or other of the other factors listed is made out, the result will be the same.

In other words, the Commonwealth’s submission is not that this is a case about exclusive possession stand or fall. Our case is that if you stand on exclusive possession, that is sufficient. If it is the case that exclusive possession is not held to be established by the operation of the sections, the result may still be the same so far as extinguishment is concerned if one of the other three listed matters are established. They of course are matters which are dealt with in further length in our first submissions, but this is a convenient summary and paragraphs 1.2, 1.3 and 1.4 put that in context.

Your Honours, we then in response to the Thayorre People deal with the issue of acquisition of reversion expectant - of course another matter already dealt with - and also the submissions made on reservations. Your Honours will remember that the issue of reservations of course is also dealt with as a principal matter in particularly paragraph 3B(6) commencing on page 27 and running to page 32 of the first volume. So there one will find the principal submissions on reservations, but it was necessary for us to make further submissions which appear on page 3 of the supplemental part.

Your Honours, going back to the index page of the second thin volume, one can see that it is there broken up into responses to the Thayorre People, part 1, from page 5 responses to the Wik Peoples’ submissions in reply, part 3, response to the written submissions of ATSIC, which I indicate were filed after our submissions as a co‑respondent to the Commonwealth to the appeal. In connection with the submissions of the Northern Land Council and Central Land Council, it has been necessary for us to engage in quite extensive written responses which run in part 4 from page 7 to page 22.

As your Honours see, they seek to pick up each of the relevant additional or separate points including these issues of the alleged non‑discrimination principle, the non‑derogation principle and also the reference to various citations to authority both Australian and also offshore authorities. If the Court pleases, we propose to let those submissions stand for themselves and I will not take the Court to any of the particular authorities to rebut the propositions made.

Part 5 is a shorter response to submissions on behalf of the Miriuwung and Gajerrong people, and part 6, if I may take your Honours to that, obviously showing on page 24 that this is a recently prepared document. As to the matter raised yesterday in argument as to whether or not Crown leases are known in English law we make the short submission in paragraph 6.1 that they have been recognised from, at least, the 16th. I see your Honour Justice McHugh - I will not say anything more, your Honours, the footnotes are there. This is the trouble with property law that we can always go back and find out something more about it. I am indebted to your Honour for the opportunity to roll back my barriers of ignorance on the issue of Crown leases in the United Kingdom.

Now, your Honours, having taken five minutes or so to explain that structure, in essence, the submissions of the Commonwealth are almost completed because our submission is that that is the argued case which makes the propositions in-chief which are the principal contentions which appear on pages 1 to 3 of the first volume, that they are established and, as I have indicated, with the annexes to the first volume and the parts of the second volume, the Commonwealth has sought exhaustively to answer all the relevant points made by the various parties including the thirteenth respondent and also the other parties, the appellants and those interveners appearing to support the appellants. Having said that, if I may make some observations, then, at the issues which seem to be those directly pertinent to the determination of this important issue.

The proposition which I made before taking your Honours to these indices was to submit that as a matter of general principle of extinguishment in relation to leases the same position obtains as respect to extinguishment as would obtain in respect of cases of alienation of fee simple. And, in paragraph 2.7 of our principal submissions we make the point that this result is dictated by the historical acquisition of sovereignty over the lands in which native title existed at the time of settlement, and of which radical title comprised an aspect by the consequential reception of the common law including, we submit, the doctrine of tenure in respect of those lands and the sovereignty of Parliament and we note in paragraph 2.7 that this position, as elucidated in Mabo [No 2], is consistent with the position of United States and Canada principles and where the courts have accepted that the grant of a legally inconsistent title extinguishes indigenous title where those rights of not being recognised by a treaty.

Now, the proposition which we make which is, as I mentioned, summarised in paragraph 1.1 of the thinner volume on the necessary and completing consistency between the grant of a leasehold estate by the Crown whether by the exercise of a statutory power or exercise of its prerogative, we submit arises in a number of different levels, but the results all confirm the proposition that there is extinguishment in such situations.

Now, firstly dealing with the conferral of the right of exclusive possession. As I mentioned, your Honour Justice Toohey did this morning, in an exchange with my learned friend, the Solicitor-General for Queensland, identify this for the purpose of argument as the key element. We would seek to rework consideration of that by saying it is a key element which may be decisive, and not the key element. There are four keys to the door. If any one or more fits, in our submission, that is determinative of extinguishment with respect to the operation of the lease. If we may deal, firstly, briefly, by way of recapitulation - not just recapitulation but elucidation of our written submissions on this issue of the issue of exclusive possession.

In our submission, the grant of exclusive possession to the lessee is necessarily inconsistent with the continuation of native title with the result that all and any native title rights are extinguished. We say that it is axiomatic that the law cannot require the enforcement of mutually inconsistent rights, that the law would be unworkable without principles which determine the priority of inconsistent interests. And in the case of conflict between right source from Aboriginal customary law and those created under the law of the sovereign, it is plain that the title rights must give way to those sourced from the law of the sovereign. May we refer to our submissions at paragraph 2.8. Native title rights are not rights arising under the common law. They are rights which the common law recognises as having survived from the period prior to the acquisition of sovereignty. They are recognised by the common law but they are not of the common law and, accordingly, the extent to which the common law will recognise native title as giving rights to the occupational use of land is a matter for the common law even though the nature and extent of native title necessarily, of course, depends upon Aboriginal customs and traditions.

So, similarly, where the native title rights and common law or statutory law title conflict and how any conflict is to be resolved, is also a matter for the common law subject, of course, to any alterations by operation of statutory law. Common law rules dealing with the recognition and extinguishment of native title are concerned with regulating the extent to which the law in force, as a consequence of the acquisition of sovereignty, will continue to recognise rights which predate the acquisition of sovereignty held by those who are in occupation of the land at that time, subject always to the capacity of the sovereign to extinguish those rights by exercise of executive or legislative power.

In Mabo [No 2], the Court rejected the proposition that there were no continuing rights recognised by the common law and held that native title right continued after the acquisition of sovereignty subject to the capacity of the sovereign to extinguish those rights. Our submission is it is flatly incompatible with these principles to now adopt an approach under which the native title rights are regarded as incapable of being extinguished either at all or by some voluntary cession or abandonment.

Extinguishment is permanent, in our submission, if one can say that without putting the proposition expressing it by way of a tortology. When one speaks of extinguishment, one is speaking of an ending of something, not a suspension of something, and that reflects the principle as elucidated by Mabo [No 2], that the principles of native title are not merely concerned with according priorities between different interests but are concerned to determine the extent to which pre-acquisition rights are recognised as continuing within the new and sovereign legal system.

KIRBY J: In Mabo [No 2], three Justices talked of extinguishment, others did not, and it was not necessary for the holding in that case for extinguishment to be determined in the context of pastoral leases. So that the matter that is before us has not really been determined or we would not all be here.

MR GRIFFITH: Your Honour, I would like to pick up Justice Dawson from the Western Australian Case to indicate that one can say that there are now four Judges of this Court accepting that view and that ‑ ‑ ‑

KIRBY J: Extinguishment?

MR GRIFFITH: Yes, your Honour, I would understand Justice Dawson ‑ ‑ ‑

KIRBY J: You are referring to Justice Dawson’s decision in Western Australia?

MR GRIFFITH: As I understand it, your Honour, Justice Dawson accepted the obligations of precedent and accepted the result. Now, it is not for me to paraphrase what Justice Dawson ‑ ‑ ‑

KIRBY J: But not in the context of pastoral leases, though.

MR GRIFFITH: No, of course not in that context, if your Honour pleases. May I make it clear to your Honours that, at this moment, I am talking about leases, not pastoral leases. I will move to pastoral leases having made the proposition with respect to leases, but it is important as a first step, a strong base, for us to establish to the Court the propositions which we summarise in paragraph 1.1 of the thin volume, namely, that any one of these mechanisms, in our submission, will have the effect with respect to a leaseholder estate of extinguishing any relevant native title. That is the topic of these submissions at the moment.

I would then intend, your Honours, to address the question of these particular statutory forms of leases and, of course, the proposition that we contend for is that these are leases properly so called within the ambit of the operation of the principle. The proposition that native title could be suspended by the creation of inconsistent rights by the sovereign - and your Honours will remember that various of the submissions filed with the Court and the submissions made to the Court make various propositions as to consistency of rights suspension, the possibility that after the end of the leasehold term there could be a springing up, as it were, of complete use and enjoyment of such rights which may be impaired, suspended, held in parallel, whatever the term might be used to describe them.

The proposition we wish to contend for is that once there is a relevant inconsistency arising from the operation of a leasehold estate, that effects complete and permanent extinguishment. So that is the dichotomy of submission that the suggestions made that there may be various redefinitions of the right which, absent a contrary leasehold estate would enable a claim for exclusive possession, as was conceded by my learned friend Mr Keane in exchanges with the Court this morning, may be adjusted to comprehend shared enjoyment or even suspended absence of enjoyment during the pendency of a lease with the capacity to revive and become more complete or become more exclusive, the termination of the lease is one which the Commonwealth flatly rejects in its submissions made to the Court.

We submit that the proposition that native title may be suspended by the creation of inconsistent rights of the sovereign is something which contradicts the principles which have been accepted by this Court as effectively interposing native title rights between the rights of the Crown and grantees from the Crown. We say also, and we make this proposition good in our written submissions, it receives no support from the overseas authorities. In the United States, for example, the courts have spoken of native title as being extinguished without any suggestion of revival or suspension and we refer, going back to 1823, to the decision of Johnson v McIntosh which is noted and there is a citation in paragraph 4.25 of our supplemental thin volume.

To the extent which it receives any support in the literature - and your Honours are aware that there has been some unpublished literature attached as part of the submissions of the parties - in our submission, such literature is more a result-driven theory developed because it seemed to produce a result favourable in the particular context of considering application in respect of the existence of leasehold estates which will be favourable to native title claimants and with respect to those propounding the view, in our submission, it was appropriate for my learned friend, Mr Keane, in his written submissions, to suggest that these writings should be regarded as part of the argument, not as authority - learned authority for the propositions which are put.

Indeed, in international law circles - I hope it is a privileged occasion for me to refer to this expression - the process of recent and timely self‑levitation by academic writings in matters of current controversy when one has, perhaps a three or four or five-year lead time until the matters come to be judicially determined, are known as “doing a Brownlie”. I will not identify the reference any further but it is the case that it is possible to generate literature over a course of time to produce what appears to be academic support for the proposition which has been the subject of dispute and discourse.

It is a question of what is the authority of that report of authority rather than the fact, is it a writing of someone who happens to be writing historically as an historian rather than writing from the point of view of dealing with historical legal principle as a counsel? In our submission, the content should be given the same veracity. The Court does, of course, have some historical material before it itself and we would refer to the historical discussion, particularly by the judgment of various members of the Court in Mabo. Our submission is that is better history than some of the material which has been put before the Court by way of history in connection with these proceedings.

TOOHEY J: The way you are putting the argument, Mr Solicitor, suggests that native title is some quite cohesive, readily identifiable concept which the moment anything is done by the Crown which impairs in any way any aspect of that title, carries inevitably the conclusion that title has been extinguished. Now, that may or may not be right. That seems to be the way in which the argument is being put and I wonder if, unless I have misunderstood the argument, whether it does take into account the fact that what has been referred to as native title is a collection of rights, some of which may be impaired without necessarily affecting other rights, but in some cases, the impairment may be so great that it is proper to speak of extinction.

MR GRIFFITH: I am indebted to your Honour, because your Honour enables me to create a false impression; I was not attempting to say that native title is something which can be readily encapsulated in some circumlocution which covers it. Your Honour, we would admit the proposition your Honour makes that there are different aspects to native title. But why, perhaps in explanation, it sounds rather strong here, if I can put it that way, your Honours, is that we are dealing here with the issue, firstly, we would say in passing of whether or not a grant of fee simple necessarily must be regarded as inconsistent with native title, whatever it might be in the circumstances, and our proposition is notwithstanding more than a faint suggestion from some of the submissions made to the Court, particularly in the written submissions that that is not the case; an alienation in fee simple necessarily must determine whatever is the content.

TOOHEY J: Yes, I understand that.

MR GRIFFITH: The second proposition we wish to make is, dealing with the lease properly so-called, without considering the next step, is this a lease properly so-called, we submit that the result is the same as a fee simple, hence my initial proposition that there is no substantive difference between the nature of possession held by a lessee and one held by a freeholder in fee simple.

TOOHEY J: On that argument it would not make any difference, I take it, whether the lease was, as I think Justice McHugh put this morning, of one day’s duration or whether it was 99 years?

MR GRIFFITH: Your Honour, the answer is, is it a lease, and that is the case where is it a lease because, your Honour, if it is put to me, this is a lease, that is determined, and it is for 24 hours to enable a race meeting at Birdsville ‑ ‑ ‑

DAWSON J: But you do not say, Mr Solicitor, do you, that there may not be rights asserted which perhaps inaccurately are called rights arising from native title which do not involve the possession of the land, but I take it that you would say of those, then one must look to other than land law to determine what effect is to be given to those rights.

MR GRIFFITH: We did, your Honour. I was going to make a separate submission about that, but perhaps to touch upon it now.

DAWSON J: Well, do I put what you would say inaccurately?

MR GRIFFITH: Yes. My submissions are confined solely to asserted rights of native title dealing with claims of possession or use of land.

DAWSON J: Yes.

MR GRIFFITH: Other claims as to native title, in my submission, are outside the avenue of consideration and need not be considered.

DAWSON J: And there may be remedies in relation to those, but they are not remedies of land laws.

MR GRIFFITH: And we say it may be that in the situations postulated of spiritual interests raised by Justice Brennan - and we understand that it was postulated on the basis, if entry is granted, there being no legal entitlement to entry, and there is a dispute between one native title holder and another claiming to have the right of native title and particular matter, is that something where the common law may give relief? The answer is, it may, but on common law principles where the same sort of relief you may have in relation to confidential property, intellectual property and the like, those principles would have to be worked out, but if the claim is not one which involves possession or use as against the person who legally claims possession or the complete use of the property, in our submission, it does not impinge upon the principles and submissions which we seek to make today.

TOOHEY J: You are apparently drawing a distinction between possession and use?

MR GRIFFITH: Possession or use, I would say, your Honour.

TOOHEY J: Well, are you treating them synonymously?

MR GRIFFITH: No.

TOOHEY J: Then if you are not ‑ ‑ ‑

MR GRIFFITH: But they would both be disposed of by inalienation, fee simple or relief, your Honour.

TOOHEY J: I take it the term “use” is being employed as involving some entry on to the land for some purpose.

MR GRIFFITH: Yes. It might be a purpose to take firewood or to bathe or to take ochre or something of that sort, which we would say would not conveniently be described as possession in common law terms, but we would include that within the ambit of the usual articulation of various versions of native title rights. But, your Honour Justice Toohey, I hope I have made it clear that we do not assert there is something called “native title” and that is it, a fixed bundle; it is a bundle of infinite variation, but in as much as however varied it would constitute a claim to possession and/or use of real property, in our submission, the principle is the same in respect of a leasehold estate as for an estate in fee simple, and that is the proposition for which I am contending at the moment.

On the issue of exclusive possession, in our submission, that is determinative in itself. But we make the point that is not the key issue; it is one which if established is decisive and that would make it the key issue if one went no further to see whether there are any other keys. The second key we refer to is the issue, of course, arising from traditional aspects of the law of property, and that is the issue of whether or not, where there is an alienation of estate in fee simple or an alienation of a leasehold estate, whether one says, particularly in the case of the leasehold estate, there must be extinguishment merely because of the acquisition by the Crown of the reversion expectant. Of course, there is nothing original in that being referred to now as a submission because of the manner in which these issues of aspects of the operation of the principles of real property were drawn together by Justices of the Court in the Mabo [No 2] decision.

If we may refer particularly to our submissions in paragraphs 3.8 to 3.11. I refer to our submission as being the substantial first volume filed. In our submission, the creation of a reversion expectant in favour of the Crown which coincides with the grant of the lease is in itself inconsistent with the continuation of native title. Your Honour Justice McHugh, may we hold off the issue of the statutory lease because I will deal with that separately. But dealing with leases other than the particular form here, we submit that in every case in which a lease is granted, the reversion must be reserved to the lessor because, without the reversion, there can be no demise. The relationship of landlord and tenant cannot come into existence.

We say there is nothing special about a Crown lease. Indeed, the acquisition of the reversion is confirmed by the necessary acquisition of an interest in the land by the Crown suffice to constitute the foundation for the grant. The Crown must have sufficient to grant the lease, in our submission, which in itself establishes that it has the reversion expectant of that which it has granted. If it has not carved it out and transferred the rights pursuant to the terms of the lease, then one would say there could be nothing the subject matter of the lease. That which has been transferred is that which will come back, apart from the statutory issue which we will refer to in a moment.

KIRBY J: This is a concept that I understand fully in the case of a private lessee and lessor, but in the case of the Crown where is the best authority that bears out the analogy in its case because the foundation of its title, moving from radical title to plenum dominium, seems of a different quality than that of a private lessor.

MR GRIFFITH: Your Honour, we would say that firstly, when one looks at the position, it is the case that the Crown is able to establish leasehold estates and we submit that it follows that the acquisition by the Crown of a reversion expectant at the moment of the grant must logically be created in the same way as it does in respect of a private grant.

McHUGH J: That must be so in the case of lands of which it is the beneficial owner. When I spoke to Sir Maurice yesterday, I really had in mind the position at the time of the conquest under the feudal theory then that all land was then deemed to be held in fee simple of the Crown. There were no fictitious grants of leases, for example. But I do not think it ‑ ‑ ‑

MR GRIFFITH: Your Honour is testing me. I am not quite sure whether William the Conqueror would have said, “I now have fee simple”. I think he might have called it something else and, as your Honour said yesterday, you could have socage and all sorts of fees. So that it perhaps was not as clear as that. Indeed, one of the authors relied upon in the material filed - I forget which one - asserts that in fact William the Conqueror did not conquer England at all. Neale says that he did not acquire the property by conquest.

KIRBY J: That would not be surprising given the way that the Crown’s role in England in the legal sphere developed and expanded over two centuries, whereas, tenure may - - -

MR GRIFFITH: It might be alleged to be part of the concept that the - - -

McHUGH J: Could you just help me on this, Mr Solicitor? I know in Western Australia some of the early grants of lease were grants of - tenures of free and common socage. I am not sure what the situation is in New South Wales or what form the early grants took. Have you seen that in your research?

MR GRIFFITH: Your Honour, I was hoping you would not sock me with socage. Your Honour, I come from south of the border, of course. May I take that one on notice and do my best?

McHUGH J: Yes.

MR GRIFFITH: We are not sure, your Honour, how many shields are being carried around the parishes of early Sydney.

TOOHEY J: I think knight service has really passed its used-by date.

MR GRIFFITH: We have still got one here, your Honour, so they are not extinct.

McHUGH J: Socage tenure could have been the only one that was ever introduced into Australia because all the other forms of tenure, I think, for practical purposes were extinct in England.

KIRBY J: Does not Professor Campbell say it was not? I thought there was a passage we were taken to this morning that said it was not. It is in one of the Queensland submissions. It is 39 - - -

MR GRIFFITH: Your Honour, may I give a default answer for New South Wales and say I think it was just the ordinary position but can we confirm that? That is not very helpful.

GUMMOW J: But in Queensland at the relevant time the only power in the Crown was by statute, was it not?

MR GRIFFITH: We would agree with that, your Honour, yes. That is a point that I would wish to make when one suggested that perhaps the - perhaps I should not come to it, but the pastoral leases as might be suggested as a special creation of an interest that is not really a lease at all because it arises out of something created by a statute.

GUMMOW J: It may be a new form of tenure, a statutory form of tenure.

MR GRIFFITH: The point we wish to make is it is basically, in Australia, all tenure including fee simple is the same form. It is carved out by statute rather than merely acceptance of the common law doctrines, but may I come to that as our next proposition. I appreciate, your Honour Justice Kirby, I have not given a complete answer to your question. We have discussed the issue of reversion expectant also in favour of the Crown in our written submissions. I do not whether the detail there is sufficient.

BRENNAN CJ: You might find some interesting material on the type of tenures in Queensland in this manuscript of Dr Fry’s book, Freehold and Leasehold Tenancies in Queensland Land, chapter 5.

MR GRIFFITH: I am really indebted to your Honour for that. I will read it with interest, your Honour. We always learn something, your Honour.

McHUGH J: Dr Fry has also got an article in res judicata on tenancies in ‑ ‑ ‑

MR GRIFFITH: That is south of the border, your Honour.

BRENNAN CJ: Does it make it any better?

MR GRIFFITH: No, your Honour. I was just going to suggest we should have a division here. Unfortunately, with the withdrawal of Mr Mason from the lists, although he left some written submissions before he left, which are very readable as, perhaps, academic authority now rather than legal writings and, of course - - -

GUMMOW J: Well, this author is dead, Mr Solicitor, quite a while ago.

MR GRIFFITH: I hope none of us present today will be authority for many years in that case. But, your Honours, the point I was going to make is that, apart from Tasmania not represented today, it might be better for those States and Territories represented to be responsible for informing the Court of their own tenures. We still have many to come. We will do out best to answer the questions put but thank you for the reference to Fry.

Your Honours, the last point I would like to make on this is that estates in reversion are not something exclusively a feature of leasehold estates. They could arise in the case of the grant of certain freehold estates; for example, a freehold estate made for life. That is a freehold estate as distinct from the leasehold estate but, of course, the grantor gets it back in reversion. So, the more one looks back at the principles of land law, we submit, the less sustainable becomes the proposition that any relevant distinction to be drawn between leasehold and freehold estates in determining whether the grant affects the extinguishment of native title.

The third aspect we wish to refer to is the effect of the applications of the doctrine of tenure and, of course, that was part of what we have referred to as the early expression in your Honour Justice Brennan’s judgment in Mabo [No 2] at page 45 where your Honour said:

A basic doctrine of the land law is the doctrine of tenure, to which Stephen C.J. referred to Attorney-General (N.S.W.) v Brown, and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency. It is the derived from feudal origins.

We accept that, of course. Now, in our submission, just as your Honour the Chief Justice found not merely an argument to be used by derivation but, indeed, we say the operable principle from the doctrines of tenure - I mean this expression “fracturing the skeleton” is something which is often referred to, but the point we refer to it now is just to confirm that that apt expression of your Honour the Chief Justice in your judgment in Mabo [No 2] was by reference to acceptance of the operations and relevance in this context of native title of the doctrine of tenure.

It is not something that can be said, well, this is just a feudal historical aspect which has no relevance. In our submission, the - if not “the”, but very much an integral part; perhaps it is “the”, without it the result might have been different - but I must restrain myself from inquiring of the Court as to its views, but just reading the words that were there, certainly Mabo [No 2] relied, applied in respect to the issue of establishing the issue of the existence and recognition of native title upon the doctrines of tenure.

Your Honours, when one looks at the Mabo decision, to some extent it might be regarded as a not particularly radical decision. What it does, in short, is to say that although it had not been perceived earlier, it is the case that extinguishment of native title in Australia did not occur on settlement by operation of common law. It occurred either partly on, when they stepped ashore and perhaps by prerogative right excluded the natives actually standing there, but it happened piece by piece by operation of prerogative power, by the exercise of a legislative power or by exercise pursuant to legislative power of executive power.

KIRBY J: But if that is the theory, then it is not such a radical application of the doctrine to say, and in the case of certain leases with certain statutory characteristics, it occurred when those characteristics in the particular case were incompatible with the exercise of the native title.

MR GRIFFITH: Your Honour, could I put that question on hold because that is the next issue of discourse in respect of these particular leases. At the moment, I am still on the general proposition of leases, properly so called, where there is no aspect such as your Honour refers to. But the point we are making here in a stream is to say, for this examination, in our submission, freehold title, fee simple, estate for life, leasehold properly so called, are all the same. They all necessarily determine any native title rights pre-existing in respect to claims for occupation or use of land. That is the proposition that I am making.

But as your Honours are now clear, no doubt, because I think I have said it more than once unintentionally, we say there are various ways in which it could happen: the first through exclusive possession; the second, we say there is an acquisition by the Crown of reversion expectant, but for the point of argument, if one assumes that Justice Kirby does not accept that, that the position of the Crown is the same as the position of a subject to reversion expectant, that is no difficulty for the Commonwealth because it says we have already got your Honours’ adherence to our first proposition, exclusive possession, and we would hope your Honours’ adherence to our third proposition relying on the doctrine of tenure.

What we say is that on this aspect, it is helpful to focus closely upon what occurs at the moment of the grant of an inconsistent estate over land the subject matter of native title. We say that when one analyses the situation by reference to the doctrines of tenure which, in our submission, Mabo [No 2], if nothing else, is authority as confirming their relevant application, it does reveal so complete an inconsistency as to show a clear and plain intention to determine native title.

TOOHEY J: I am just having some difficulty with this third concept as an independent concept, Mr Solicitor. It is in the context of the levels of which native title may be extinguished and this particular head reads, “The application of the doctrine of tenure to the land”. Now, does that mean the existence of the notion of tenure or its particular application by reason of a grant of land, and if it means the second, it presumably means something more than the conferral of the right of exclusive possession and does it mean anything more than the exercise of sovereignty?

MR GRIFFITH: I think your Honour has asked me four questions. Can I make our propositions and see whether or not I have answered your Honour’s propositions or whether some of those successive questions still concern your Honour? What we submit on this is that we say immediately prior to a grant in respect of - particularly where there is a relative native title, the Crown has only a radical title with respect to the land. Radical title is able to co‑exist with native title, existing prior to settlement, because without more radical title there is no interest in the land itself and we deal with that in our submissions, paragraph 2.3.

When a grant is made - and we can, perhaps assume fee simple or our submission is leasehold is the same position for this purpose - the doctrine of tenure extends to apply to the land and by virtue of that doctrine, we say the Crown necessarily acquires an interest in the land which forms the foundation for the tenure arising on the making of the grant and any subsequent estates granted in respect of the land. Now, your Honour, we elucidate this: Justice Toohey in paragraphs 2.3, 2.4, 2.5, et cetera, so that when I refer to this, this is not something coming out of the air.

We hope it is there in our submissions but I was hoping by referring to it to draw it together. Our submission is that the doctrine of tenure - and, your Honours, we say there is nothing original about this because not only is it just the application of traditional doctrine, it is something where we have the recent authority of the Court, we would submit, in Mabo [No 2] to confirm its continued operable relevance. We say that the doctrine of tenure then wholly supplants Aboriginal customary law as the source of rights in respect of the land.

In other words, rights with respect to the land subject to the grant, we submit, can thereafter only be source from the Crown. The possibility that inconsistent interests in the land could be created by two different legal systems, we say, is not one that the common law or any legal system can tolerate.

McHUGH J: Why do you have to put it on the basis of tenure? Perhaps it leads to the same result. But on any view, well, not on any view, but if the Crown leases and there is a reversion then they are asserting beneficial ownership. It is the assertion of beneficial ownership that extinguishes the native title.

MR GRIFFITH: Your Honour, that is another way of putting the same thing but in essence these four proposition in paragraph 1.1 might be regarded as putting the same thing and that it leads to the same result but one can say, “Why is this so?”, and we are saying, “You can say it is so for various reasons”, but we say, your Honour, this legal incapacity to have two different legal systems applying inconsistent interests, explains why the grant of an inconsistent estate will extinguish native title. So, we say that once one has the grant of freehold, that seems to be common ground. Now, why is that so? We say because it is inconsistent with the native title and our proposition is that leasehold, the position is the same.

DAWSON J: But it carries with it more than that really; it may not be of any consequence but it carries with it the proposition that those who have native title now in this country, since the advent of the common law, hold it of the Crown. In other words, sovereignty would be less than sovereignty if that were not so.

MR GRIFFITH: Your Honour, I hesitate to ‑ ‑ ‑

DAWSON J: Or, in other words, it is not in any respect an allodial title. It is, in that respect, like every other title. It may not matter.

MR GRIFFITH: I do not know whether I would be qualified to answer your Honour because we are accepting, perhaps to keep life simple, the expression as to radical title being able to coexist with native title until something is done, as one gets out of Mabo [No 2]. If that means the same thing as your Honour’s proposition, well, of course ‑ ‑ ‑

DAWSON J: You speak of it as being a burden on the radical title of the Crown which means that it is something that stems from and cannot be considered apart from the Crown’s title.

MR GRIFFITH: Yes. We do accept Mabo [No 2] establishes that mere radical title, itself, and the continuation of native title is not inconsistent.

DAWSON J: No.

MR GRIFFITH: Your Honour said no.

DAWSON J: I mean I accept that now, too, yes.

MR GRIFFITH: So what we are saying is, once you start doing something, if you carve out fee simple, it is, and we say this is to do with other things - - -

DAWSON J: In a sense, you do not have to grapple with what I was just putting to you because it is not necessary, but I am merely suggesting that follows.

MR GRIFFITH: I suppose that is what I was trying to do was not risk by doing something that is not necessary by possibly alienating one or other of the Justices.

DAWSON J: Yes, that is not a worry which I have.

MR GRIFFITH: I think we are furiously in agreement. Perhaps I had better keep to the best bits, your Honours. We say this is an explanation as to why the grant of an inconsistent estate by the Crown will extinguish native title because it leaves no possibility that native title can be suspended during the term of the lease; no possibility that it can be revived; no possibility, we say - no legal possibility, that it continues to exist. We would then submit - and I am starting to trespass onto this question of the statutory issue, but if I may confine myself to the Sale of Waste Lands Act, dealing with sale rather than getting into leasehold, we say that to suggest that a statutory power without more is sufficient power to grant interest in land is to misapprehend the nature of the document of tenure, and effectively to deny that it applies where the Crown has granted an interest in land through the exercise of a statutory power.

That would create real problems, we would submit, in doing that, because, since the Sale of Waste Lands Act 1842, all forms of tenure, including freehold, all grants have been authorised by statute within Australia. So that, in our submission, it is not possible to say that things are so different here that one can say this is all statute. It did not involve the application of the conventional doctrines of tenure.

One difficulty, of course - I do not know whether your Honours experience it, but I did law of property first year law, and now it is too many years ago, and one has to refresh one’s memory on these things. I do not think legal history is even taught nowadays but that is what we have to go back to and revive our memories about and we discover that that still remains, in our submission, the source and the basis of analysis for the appropriation and the determination by this Court of the relevant principles and results in the course of recognising what is not the question of the recognition of the continued existence of native title upon settlement - that is resolved by Mabo - but this more difficult issue, accepting that it is vulnerable to attack of the prerogative and by statute and pursuant to statute by executive power, has its vulnerability in particular circumstances to be examined, resulted in it being extinguished.

We are sticking to the main proposition: in ordinary leasehold estate it is just the same as freehold alienation, in our submission, the creation, itself, does the trick, whatever is claimed to have been the content of native title rights up to that time.

We submit, and very much Mabo reaffirms - it did not have to because it must be the case, in our submission, that it is not now open to question the application of that doctrine in Australia, or to say the peculiar statutory history - and once more, can I refer to Appendix 2 where we summarise the history of settlement outstripping the regulation of occupation and the creation of licences, leases, rights to buy freehold. That is a convenient summary of the position, but however it worked, the fact that it came to be regulated by statute, we say that it is within the context of the application of the doctrines of tenure.

It is the cornerstone of Australian land law and we say the doctrine of tenure applies and continues to apply, irrespective of whether the grants by prerogative were made pursuant to executive power, statutory power as well. So that, to refer back to page 45 of your Honour the Chief Justice’s judgment in Mabo, this is the essential issue of saying, well Mabo does determine this issue of the correct application of the common law, so far as the recognition or non-recognition of native title was concerned at common law, absent prerogative or legislative statutory interference. That is what we submit your Honour is referring to as the skeleton, which gives our land law its shape and consistency, and what we do submit - I will say something about it further in closing - is that whatever is in disputation, we submit, before the Court today, that skeleton, which gives our land law its shape and consistency, is something which the decision of this Court, just as in Mabo [No 2], must preserve. Of course, the Court can see what is coming; the submission that if many of the submissions made to the contrary, indeed almost any of them were accepted, in our submission that would be a fracture of the skeleton, which we say is impermissible; not impermissible because of Mabo [No 2], but impermissible for the reason stated in Mabo [No 2] that this represents:

the skeleton which gives our land law its shape and consistency.

And that is a rock firm, unalterable foundation, we submit, for the operation of land law, dare I say tenure, throughout Australia; that is not something which is, as it were, up for grabs, on the white board being able to writ in. It is not, in our submission. That is the basic structure to which any determination, and we submit any argument to be put befor the Court, must take into account.

So, the various Land Acts, I will leave out the issue of leasehold at the moment, are not codes which invent new tenures independent of those familiar with the common law; they adopt and adapt the common law tenures to greater or lesser extent. The fact that examples can be found which are substantial modifications such as perpetual leases, and one may have something termed “a mining lease” which has its problems - one can say, well yes it is a lease because there is a reservation to the Crown of the mineral itself. And then you say, well how can it be a lease because it gives rights over the property which might be the property alienated in fee simple to someone else. There is no practical difficulty in recognising the legal efficacy of provisions giving you a right of entry over someone’s freehold land for the purpose of winning a metal, the property in which remains vested in the Crown, because if a statute gives you a statutory right to enter onto someone else’s land then that right is effective, I suppose, subject only to the possibility, if it is under a federal law, a provision for just terms may be required. The States do not harbour that disadvantage so their mining laws, generally in so far as they provide for interference with what otherwise would be third party property rights, can be given effect according to their terms without any requirement for compensation. Even perpetual leases may be said to build upon basic doctrines of tenure, but we will make submissions that pastoral leases in fact make minimal departure from the common law models and do not involve any of the sort of problems which might arise, for example, in connection with a mining lease or a right to win gravel or something of the sort.

So we would submit that extinguishment cannot be suggested as something which does not occur at the time of grant to await the exercise of rights which can be said to be inconsistent, because a lessee at some indeterminate time might choose to exercise them, and we say that the proposition that one has a wait and see or an examination of the facts, directly contradicts the principles which are accepted by this Court and receives, we say, no overseas support. And also propositions which are made that extinguishment can in some way be delegated to individual lessees is equally unsustainable. It would be a very curious result if those lessees, rather than acting with a view of being fair and indulgent to those native persons who are in occupation at the time of their lease possibly in the last century, go summarily to turn those in occupation off the land or even, of course this has happened, to ensure that they permanently stay there by killing them, that it cannot be the case that extinguishment is to be determined by how vigorous the person in occupation pursuant to a lease is in exercising the legal right to exclusive possession.

In no jurisdiction has it ever been accepted that acts of private individuals can extinguish native title, and we would say that the Court in the Western Australia v Commonwealth decision recognised that it is exclusively a sovereign act. We deal with this briefly in our submissions at paragraphs 2.10 and 2.11. So for whichever way it is approached, a test of extinguishment which required the inconsistent exercise of rights would introduce a totally unacceptable level of doubt with respect to any estate granted in the land and would turn native title claims into something of a lottery.

It is not the way to go forward, but it is not to be rejected merely because it would be inconvenient. In our submission, it is closely and absolutely a confounding relevant principle. We say that the arguments which are put to this end which were advanced would lead to the conclusion that native title may and often will survive even the grant of freehold land. Tests for extinguishment are proposed in various versions in the written submissions which, in a practical sense, could never be met in a particular case. Only an exercise of rights granted by the Crown which results in the total and permanent severance of an additional society’s link with its land and the permanent cessation of the observance of traditional laws and customs is seen to suffice the Wik Peoples’ articulation of the relevant test.

So that what the appellants seeks of this Court is to re-write the clear and plain intention test so that it would be, one would say as a matter of evidentiary proof, never or only rarely met, not even by the grant of fee simple. Indeed, the only example which Sir Maurice obviously gave in answer to inquiry from the Court was to refer to the theoretical possibility of abandonment. So that for some 200 years, it has been the case that whether as colony states, the Commonwealth, the citizens of Australia, its governments, have all proceeded on the basis that Aboriginal people had no legal rights in land except where specific provision was made for them.

Now, it is one thing to say that notwithstanding that apprehension where Aboriginal people have maintained their traditional occupation, their traditional lands, and there are not inconsistent rights of other parties, these people should now be recognised as having a legal right to the occupation of that land, that is entirely accepted, but it is an entirely different thing to say that because such legal rights were not recognised during the period, nothing that occurred in that period should be treated as having impaired or restricted those rights so that they retain or can resume their full force and effect.

So that accepting entirely the injustices, the social degradation, the shameful acts which have occurred during this period, it is not possible to re-write the rules as to tenure to obtain what might be seen as an acceptable present outcome.

In our submission, one cannot question to the extent of rewriting fundamental principles of land law to require actual intention to extinguish native title when clearly of course, as this Court has said, none could have existed in fact because it was not appreciated that there were any rights. In our submission, to contemplate doing that is for the Court to be invited to abandon the principles adopted in Mabo in an attempt, which of course could not be successful but, in our submission, cannot even be aimed for, to restore Aboriginal people to the legal position they would have been in if their rights had been recognised at the time of settlement.

One cannot even assume what would have been the history of Australia had such rights been recognised. What is clear is those that came to the various colonies for the purpose of settlement would one way or another have settled at least the better parts of the colonies, so that there would have, even if there were legal acceptance of the right of native title, been actions pursuant to the prerogative or statutory or legislative authority to deal with the issues of relationship. Then our history might have been along the lines of Canada, United States, New Zealand; one does not know. But we have a past which we may admit has been shameful in this regard but one which must be considered in the context of the articulation, correctly by this Court, if I may say so, in Mabo [No 2] of the fact that the responsibility for the extinguishment of native title is not the common law. It is the responsibility of those who settled the country in exercise of prerogative and statutory powers, but that exercise of prerogative and that exercise of statutory powers has been exercised.

May I turn then to the issue of: are pastoral leases properly to be characterised as leases? That might be regarded as the crunch point for determination in this appeal.

GUMMOW J: Why do they need to be characterised as anything other than themselves?

MR GRIFFITH: To your Honour’s question I would say yes, indeed; why not? Perhaps I could withdraw the heading I had on this speaking note and say “Quite so”. Let us just look at them and see what they are. That is sufficient for the purposes of inquiry. This is, in our submission, a question of statutory construction but in the context of course of the pre‑existing land law, including the doctrine of tenure about which the Court is sufficiently and distressingly familiar. We would agree with the submissions made by my learned friend Mr Keane that one should approach the issue of construction in accordance with their ordinary and natural meaning. It must be assumed that where words have acquired a special legal content, they should be used with deliberative legislative intention.

May we pass to the Court and make passing reference to what your Honour Justice Brennan said in Corporate Affairs Commission of New South Wales v Yuill and Others 100 ALR 609 at 611. While we are waiting to distribute, can I just read the short sentence which I desire to refer to on this issue of statutory construction. At page 611 at line 14 your Honour Justice Brennan said:

We are thus concerned with an application of that presumption in a legal matrix which has changed since the Code was enacted.

This is dealing with the issue of legal privilege:

The alteration of the law which Baker v Campbell prescribes evokes an application of the rule contemporanea expositio est optima et fortissima in lege - the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up -

and your Honour refers to Broom’s Legal Maxims. So, the answer to our first question is that the Code should be construed in the light of the law as it stood when the Code came into force. Well, I do not desire to take this too far and engage in a debate as to whether your Honour’s reference was by reference to construing a Code, but the point we wish to make is that surely, we would submit, it is appropriate in construing the provisions of the 1910 and the 1962 Act to read it and make sense of it how it would have been applied when it was drawn up.

The obvious comment there is that that was in consideration of a pre‑Mabo [No 2] contemplation. So that one must assume that the Act by its terms was acting and providing for the creation of interests; pastoral leases, pastoral licences and other interests under the Queensland legislations in the context there was no appreciation that there was any possibility of continuation of native title. In that context, it is our submission that it becomes barely tenable to put constructions which result in a reading of compatibility with the continued recognition of such native title interests which might be regarded as consistent with what might be a narrow reading of the granted rights pursuant to the terms of leases issued under those legislations providing for use for pastoral purposes.

I will say more about that in a moment but our submission is that where the legislature uses the terminology of leases, it must be assumed that they reflect the intention of the legislature to create a lease.

GUMMOW J: But that is not universally true, you see. It is not a universal proposition as to what happens, as Mr Keane agreed before lunch.

MR GRIFFITH: Your Honour, of course it is not universally true, but ‑ ‑ ‑

GUMMOW J: For example, as to creation. If it is not universal proposition, then we immediately have to inquire as to what the universality does not apply and you will not answer that by repeating the universal proposition.

MR GRIFFITH: No, your Honour. What I am going to then do is go the various provisions of the Act to say “Look at what it does”. All this added together constitutes a lease. It is not just the fact that the heading says “Pastoral Lease” and it is not just section 6(2). In our submission, it is the totality of ‑ ‑ ‑

GUMMOW J: But some of its characteristics are in opposition to the concept of common law lease. That is the point of the Solicitor‑General’s concession, I think. Some of the characteristics are in opposition to the characteristics of the common law lease.

MR GRIFFITH: Well, your Honour, some might be, we would say barely so, but the overwhelming preponderance, your Honour - in our submission, absent Mabo [No 2], we would say it could not be gainsaid that the provisions with respect to pastoral leases would constitute that which would be regarded by any common law definition as a lease, and we would go further and say the provisions with respect to pastoral licences which are there in contradiction in the same part under the heading “Pastoral Tenure ‑ ‑ ‑

GUMMOW J: For example, Mr Solicitor, the 1962 Act creates perpetual leases and wants to be on contemplation of the Common Law Act.

MR GRIFFITH: Your Honour, my submission is directed entirely to pastoral leases, not perpetual ones. I have already made passing comment ‑ ‑ ‑

GUMMOW J: But we are talking about the Act, you see. That uses the word “lease” as well, you see.

MR GRIFFITH: Well, your Honour, it may be a matter of debate as to whether a perpetual lease is different from a lease for 99,999 years. Perhaps there is a distinction there without a difference. Perhaps there is no difference for anyone present here today but, your Honour ‑ ‑ ‑

BRENNAN CJ: It may be just that the statute of quia emptores does not apply to perpetual leases.

MR GRIFFITH: It could be the case, your Honour.

BRENNAN CJ: That it is restricted only, I think, subinfeudation to fee simples.

MR GRIFFITH: That might be the case, your Honour. Perpetual lease sounds like what might be characterised as equivalent to a freehold estate. If a life estate is a freehold estate, it is not that difficult for a perpetual lease to be so characterised.

DAWSON J: The mere fact that the legislation takes up the concept and adapts it in certain respects does not mean that it abandons it.

MR GRIFFITH: Of course not, your Honour. Yes, I agree. I was going to say that but now it is said and I accept what your Honour says about it.

GUMMOW J: The question is where do we get the concept of exclusive possession out of the Act? You may be right, it may come out of the Act, but I do not think it comes out of the Act just by latching on the word “lease”.

MR GRIFFITH: We, in effect, pile on indicia after indicia of an indication to create a lease with - what we submit is, at least in the part dealing with pastoral tenures - emphasising “tenures” - absolutely nothing in derogation from the concept of this must carry with it the ordinary indicia of leases, namely, exclusive possession and we would say the only thing that we put against that is the fact that it is a large area and the Act contemplates large areas. When one looks at the various sections, the rent is to be fixed at so much per square mile. It is large areas. The Act contemplates large areas. Now, in our submission, the fact that one then says, “Yes, but leases can be large areas” , that is an indicia there is not to be exclusive possession is really to seek to turn the terms of the Act on itself.

It contemplates pastoral tenures described under the first part, pastoral leases, we say with all the indicia of the lease, of large areas, including various covenants to fence the large areas, to effect improvements on the large areas, and as we know from the documents that my learned friend, Mr Keane, took the Court to as he opened his submission, covenants which are enforced and applied. There is a requirement to fence and if you do not fence, unless you get a relevant statutory dispensation from the Minister which may be given, well, then, you are reported by the inspector and you may risk then forfeiture or other consequences arising from it. Your Honours, we do desire to make these points in aggregation, accepting the force of your Honour’s comment that it is possible because this is a statutory instrument to say, “Well, this is somewhat circular because you are not spelling out that there is exclusive possession.” We would say why should a provision in the Act which provides for pastoral tenures, we say for pastoral purposes which we explain particularly by the reference of the summary of history in Appendix 2 of our first submissions, as being created from the point of view of protecting the revenue to ensure that the revenue would obtain a gain if there was a higher use.

We say rhetorically, why should it be that such instrument should not be giving its ordinary meaning and should be read down, merely because in essence, the issue is a large area? Were there a lease in all these terms, not for 312 square miles, but for Collins Park around Tasmania or within Tasmania ‑ ‑ ‑

KIRBY J: I think you are over simplifying the argument. The argument is not just that it is a large area, but it is a large area in which, inevitably, by the history of this country, large numbers of people would have wandered, and this Court has declared that the people so wandering have a right.

MR GRIFFITH: Your Honour, this Court has not declared anything more than it is now recognised that they had a common law right which was very vulnerable, and one thing is clear, that in the 200 years of Australia’s history before that, such vulnerability was exposed and those who had this right and were unaware of it were affected, often with mortal consequences. So, our submission is, your Honour, the fact that that is now recognised and acknowledged and, in essence, as one can say Mabo [No 2] effects an attempt to articulate an appropriate expression by way of - I suppose it is pretty hard to describe it but by way of expressing contrition that there has not been expression at an earlier date of these principles, cannot evade the fact that these are the events that would have happened, and how they happened was because, particularly, parcel by parcel, pastoral lease by pastoral lease or often occupation followed by licence followed by lease - see, the purpose of a pastoral lease - licence I do not think there is any need to go into the provisions in detail, but I have already made the proposition in passing that one could characterise the pastoral licence as a pastoral lease - was to enable interim occupation until one could then convert it into a full pastoral lease, but be that as it may, the effect of that was to cause disposition, parcel by parcel, as is referred to by the Court, certainly in

appropriately and telling and ringing language, of these peoples, who should not fairly have been so dispossessed, but the fact is that they were. One can say the argument is put this theory cannot be right because if it extended throughout Australia they would be left standing in the sea.

Now, the answer is of course it was not intended that they should be left standing in the sea. One knows from the legislative frameworks that it was intended that reserves should be created. I mean, to put it very harshly, there were at least three possibilities, alternatives to complete dispossession. One was that they might be established in reserves. Another, that they could keep moving further out to the next country. There seemed to be no appreciation of the aspect of native title which meant that it was tied very much to locality, but that was a matter which seems to have been ignored. And the third possibility is that it could have been assumed that those persons with native title would eventually die out and the problem would be eliminated.

Now, we have already argued in the Court the Kruger Case which is awaiting judgment where the Court is quite aware that the philosophy behind the legislation in that case was to operate in what was intended to be from a viewpoint of welfare, to enable half‑caste children to be assimilated within the community but not to require assimilation of full‑blood children because it was contemplated that eventually they would die out. I mean, that is the distressing fact.

In this case, one might contemplate - it might not have been said, but whether it was addressed in a satisfactory way at the time or not, the fact of the matter is that displacement did occur and it did occur by those persons who took up pastoral leases exercising that which we say was their undoubted power, pursuant to the lease, to turn these inhabitants off their own lands. That is the distressing legislative history but, in our submission, it is not permissible now to, in effect, seek to make amends for that, to construe the legislation as having some limited legal operation presumably in the past and a limited operation in the future.

These issues are being addressed in various ways. The judgment in Mabo has been accepted by the people of Australia; it has been accepted by the parliaments; it has given rise, after anxious and compassionate debate, to what might be regarded as an agreed result in the Native Title Acts. These matters are being addressed, but many of these issues are ones to be addressed by reason of social and political re‑examination, and that is a difficult, sometimes distressing, sometimes prolonged process. It is in hand. There is no doubt that the judgment of this Court in Mabo [No 2] has been a catalyst for these matters and that, of course, is an undoubtedly most important thing for the people of Australia - all the people of Australia. But having said that, in our submission, one cannot have regard to issues of the sort as to saying, “Well, what is the position of these people if they are to be turned off these lands?”, to give what is not an admissible meaning, in our submission, to the terms of laws passed, in the case of the first Act under consideration, in 1910. That is almost contemporaneous with the bringing into force of the laws which were considered in Kruger. There were different attitudes in that time. If one says, “Were there alienation of land in fee simple, would that enable any native occupants to be turned off?”, the answer is, “Of course, it would”. In our submission, it is equally clear, having regard to the circumstances at the time, say the 1910 Act was passed, we would say it is self‑evident beyond contrary argument that it would have been admitted that the lessee would have the same power to turn off.

They should not, that was admitted, but that is another thing to say that this legislation, on any permissible construction, can be read to say that there is no such power. These are difficult submissions for me to make to the Court but, in our submission, that is the operation of the terms of the lease, and if I may seek then to, as it were, compound the various indicia which we see from the legislation as indicating that its ordinary clear and apparent meaning and which an approach driven from the appreciation of the native title rights which were not prior to 1992 appreciated, nonetheless must be accepted as the proper construction and operation of the terms of the Act.

We refer to paragraph 3.21 of our submissions, and the third appendix to which I have already taken the Court and will not take them again, of the ordinary terms of the lease plainly imported into the terms of the legislation. We say also that this is confirmed by the long line of authorities, including those pre-dating the leases in question, and we say also by decisions of the Court and we deal with these issues of authorities in our submissions at paragraph 3.20.

So, of course, it is not a question of accepting that a given label is correct. In our submission, it is quite clear that when one looks at the terms of the Act what is constituted by an aggregation of the provision and that is that a lease properly so called is created and we submit that by its terms it is not one amenable to be reconstructed in effect in its operation so as to determine that it does not intend, by its terms, to give what is the ordinary attribute of a lease, namely, exclusive possession.

Now, the fact that these pastoral leases have many features common with pastoral licences or licences for pastoral purposes under other Lands Acts, in our submission, cannot affect the characterisation of pastoral leases as leases, so that the list of matters which my learned friend, Sir Maurice, referred to showing similarities and by reference to the written submissions of the Thayorre People, in our submission, do not in any way affect the characterisation of these particular leases under the part of the Act dealing with pastoral tenures.

May I refer in detail to our submissions, paragraph 3.20 to 3.24. We will spell this out in some detail showing the many indicia of the intention, we say, to create a leasehold estate, not just the language of the legislation but also particular things such as the power to create easements, section 282 of the 1962 Act, the power to assign and mortgage, express recognition of power to remove trespassers, the existence of reservations.....necessary by reason of the grant of exclusive possession and on that aspect may we refer to appendix 1, paragraphs 29 to 33.

The fact that the holder of a licence under the Land Act also has power to remove trespassers does not prove that this is not a lease. Indeed, to the contrary, and may we refer to the authorities in paragraph 1.33 of Appendix 1 which include authority for this Court, which suggests very strongly that so-called licences under the Acts are misdescribed and they should be regarded as indistinguishable from leases. It is also significant that there are sections providing for the Crown to take possession once the lease or licence has been terminated. The Court has already examined those this morning and we submit that this is wholly consistent with the Crown having reversion for the duration of the lease with its interest expanding to full beneficial ownership on the termination of the lease. A point that we understood my learned friend, Mr Keane, was seeking to make to the Court in his submissions.

So, the distinction drawn in this Act between leases and licences would seem to be one more concerned with the general scheme of the Act, as I mentioned, which seems to contemplate one might start with the licence in occupation as one makes application in due course might be granted a lease. But whether or not licences should properly be regarded as leases is a matter not for the Court to determine. The fact that the licence provisions have many similarities as the Court has been taken to in detail, in our submission, carry nothing in derogation from the characterisation of the provisions applying for pastoral lease as a lease properly so-called.

GUMMOW J: Would the holder of the licence be able eject the person disturbing the occupation?

MR GRIFFITH: I think they can, your Honour.

GUMMOW J: Any third party, forgetting about the Crown.

MR GRIFFITH: I will have to check whether they have express power to do it, but we would say that they would. I think, your Honour, when one looks at it in detail, apart from the provision that there may be conditions imposed on the pastoral lease which does not seem to have an equal provision in the licence and other provisions - your Honour, it seems to be covered specifically by section 373(1) of the 1962 Act, which enables any person who:

is in possession of any Crown land under colour of any purchase, lease or license -

is able to remove trespassers, so that it would seem specifically to give a statutory power.

GUMMOW J: But there was no such provision in the 1910 Act, was there?

MR GRIFFITH: May I pause before I answer that, your Honour. Your Honour, our appendix 1, paragraph A1.29 refers to section 235 of the Land Act 1897 as a provision which enabled removal of trespassers.

GUMMOW J: But 373 was the Commissioner removing people. It was not the title holder, was it?

MR GRIFFITH: Your Honour is half a lap ahead of me, so I will just say yes. Your Honour, the 1910 Act page 204, the last paragraph, enables licensee of any land from the Crown. So it looks like it may be there, but not quite as specific.

BRENNAN CJ: Is this a convenient time, Mr Solicitor?

MR GRIFFITH: Yes, your Honour. I will not say I am travelling smoothly, but we are well through our submissions, your Honour.

BRENNAN CJ: Yes, so I notice from the time. The Court will adjourn until 10.15.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 13 JUNE 1996

[1996] HCATrans 168

Key Legal Topics

Areas of Law

Native Title

Constitutional Law

Property Law

Legal Concepts

Jurisdiction

Standing

Procedural Fairness

Statutory Construction