Wilson v Anderson & Ors - [2001] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S101 of 2000

B e t w e e n -
DOUGLAS WILSON
Applicant
and
MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY‑I DIXON CLAN

First Respondent

THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
Second Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Third Respondent
Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 SEPTEMBER 2001 AT 10.16 AM

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.M.C. EMMERIG, for the applicant. (instructed by Blake Dawson Waldron)

MR C.J. BIRCH, SC: If the Court pleases, I appear with my learned friend, MR J.J.T. LOOFS, for the first respondent. (instructed by Craddock Murray & Neumann)

MR V.B. HUGHSTON: If the Court pleases, I appear with my learned friend, MR S.B. LLOYD, for the second respondent. (instructed by the Crown Solicitor for New South Wales)

MR J. BASTEN, QC: I appear with my learned friend, MR R.W. BLOWES, for the third respondent. (instructed by Chalk & Fitzgerald)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MS R.J. WEBB, for the Attorney‑General for the Northern Territory seeking leave to intervene. (instructed by the Solicitor for the Northern Territory). Does your Honour want to hear that application?

GLEESON CJ: Is there any opposition to that application?

MR JACKSON: No, your Honour.

MR BASTEN: We indicated our opposition, your Honour, and ‑ ‑ ‑

GLEESON CJ: Go ahead and make the application and then we will hear the opposition - - -

MR PAULING: Thank you, your Honour. Your Honours, I rely upon the affidavit of Stephen Charles Herne, affirmed on 18 December 2000. Your Honour, that affidavit shows in the terms of Chief Justice Brennan’s judgment in Levy v Victoria, 189 CLR 579 at 603, that not only do we show that we have a particular interest or the necessary legal interests to apply for leave to appeal but, as our submissions in this case show, we bring argument to the matter that is different from any other of the parties, particularly as the construction of the Native Title Act and it is our respectful submission that it would assist the Court to reach a correct determination by viewing the arguments that were discussed in the judgments below in the proper context of the Native Title Act.

It is our respectful submission that it would assist the Court to reach a correct determination by viewing the arguments that were discussed and the judgments below in the proper context of the Native Title Act.

GLEESON CJ: How long do you think your argument would take?

MR PAULING: Fifteen minutes, your Honour.

GLEESON CJ: Thank you. Yes, Mr Basten.

MR BASTEN: Your Honour, I do not seek to say much. We set out the points we sought to raise in paragraphs 1.5 to 1.7 of the written submissions. We simply say the Territory has no interest in this beyond a general interest which is shared by all litigants in relation to native title. We say the Court needs no extra contravener and there is an element of prejudice in the sense that some of the issues raised are issues which are raised in the matters in which the Court has reserved and should not be raised in the absence of the parties to those proceedings.

GLEESON CJ: Thank you. Yes, a majority of the Court is of the view that leave should be granted. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. We have provided the Court with a copy of the lease in question in the larger form which makes it, I hope, a little easier to read. I will come to it in a moment. I just wish to indicate to your Honours we have done that. The second thing is there is a map which was before the Federal Court which is not in the books which indicates two things. One, it indicates the western division and your Honours will see the line between the western division and the central and eastern divisions. That map is November 1997. We understand the position to have been that the line is not different from its position at the time of the grant of the lease.

The second thing about it, your Honours, the location of the particular land does not appear. Where it is, your Honours, is, if I could perhaps hold this up to indicate, your Honours will see about the middle of the top the Darling Riverine Plains there referred to and immediately below that is the town of Walgett on the line of division. About perhaps a centimetre slightly east to north of Walgett is the land in question.

GLEESON CJ: Thank you.

KIRBY J: The copy of the lease that we have been provided with has as its last entry a transfer to a Timothy John Rees.

MR JACKSON: Yes, your Honour, the position is that it all became computerised after that and your Honours do not have the final stages in the chain, but that is the reason why it does not go beyond that, as we understand it.

Your Honours, as the Court is aware, this matter has been directed to be heard before the Full Court with the parties to be prepared to present argument as on an appeal. So far as the application for special leave is concerned, we rely upon the matters set out in our summary of argument in volume 15 commencing at page 3152. I would simply seek to emphasise in addition to the matters set out there that the decision in the case potentially affects many persons, as your Honours will see in volume 15, page 3153, paragraph 2.5.

Subject to your Honours, I would propose to move to the substance of our argument at this point. Could I say in relation to that that your Honours will have seen that there are substantial written submissions on behalf of the various parties in the litigation. I do not intend to go through ours seriatim. I do propose to seek to highlight what seem to be the important points so far as the argument is concerned.

As the material indicates, the Court is concerned with the Western Lands Act 1953 and with leases granted under section 23(1)(a) of that Act. So far as the Act is concerned, an agreed version of it as at 31 August 1953 appears in volume 1. It commences at page 59 and section 23(1)(a) is at page 98. I will take your Honours to it a little later. The lease appears in a number of places in the record. I have given your Honours an enlarged copy of it and it is an enlarged copy of the version which appears in volume 15 at page 3245.

The native title rights that are in question appear from two places. The first is the claim in volume 1 at page 37. May I take your Honours to that. It is page 6 of the application and it is the top of page 37 in volume 1 where the claim is an entitlement as against the world:

to the use, possession and enjoyment of their country, including all waters and land within the area of the application, subject to and in accordance with the customs and laws of the Euahlay‑i Dixon clans.

Your Honours will see the remaining two paragraphs and then, as is adverted to in the submissions on behalf of the second respondent, New South Wales, after the decision of the Full Court in this case there was some amendment by way of reduction of that claim and your Honours will see that in volume 15 at page 3255. Your Honours, could I refer particularly to paragraph 6 at the bottom of page 3255 and your Honours will see that:

The Attachment B.2 to the Amended Native Title Claim states in part:
“1. . . . The area covered by the application excludes any land or waters covered or were covered by -

and then your Honours will see (iv) and (ix), and (viii) I should say.

GUMMOW J: It is still rather difficult to see how a claim in these terms could found a determination under 225. It seems to lack anything like the necessary specificity.

MR JACKSON: Well, your Honour, that may well be a difficulty that one day has to be faced but your Honour will see that the claim really, in effect, and no doubt it can be put in other ways, but it seems to claim the land. Your Honours, the argument in the end, in our submission, is whether any native title rights existed following the grant of the lease. Your Honours, may we note in passing that the first and third respondents say one must look at things in terms of the Native Title Act and Justice Beaumont referred to that in the Full Court.

Well, your Honours, no doubt one must, in the end, look at things in terms of the Native Title Act but one is speaking, again to use the expression “in the end”, of a difference without there being a distinction because the test provided for by the Commonwealth and State Act is one involving exclusive possession.

KIRBY J: Yes, but it is not the end; it is the beginning. You begin with the Act. The statute is a higher law. You begin with the Act, and to the extent that the Act incorporates a common law principle, that is what the Act does and its authority is the Act. So it is not in the end; it is in the beginning.

MR JACKSON: Well, your Honour, I am sorry. What I was seeking to say was that the answer to the question is no different because the question posed by the statute is whether the rights conferred are those which amount to exclusive possession. I was not seeking to put the common law above a statute, with respect.

HAYNE J: But the debate is then a debate at the extremes. The debate is an all or nothing debate without regard to the possibility that there may be some middle ground in which some rights survive. What is the utility of an all or nothing debate?

MR JACKSON: Your Honour, I agree that if the issue is resolved in our favour, then it is an all or nothing result in the sense that the claim could not succeed. However, your Honour asked what is the utility of it. The utility of it is this, that if that result is arrived at, then it is unnecessary to seek to divine what native title rights might or might not survive, as it were. In relation to that, your Honour will see from the materials we have in support of the application for special leave that that is an issue which is time‑consuming and difficult, of course, and is likely to involve, as your Honour will see from the ambit of the claim that is made, very significant cost and – as I have used the expression before – time. So the utility of it is that if we are correct, then the claim is brought to an end at the start. That would be true too of claims in respect of many other areas.

Your Honours have seen that this applies – that the types of leases involved are leases which are ones applying to a significant number of persons.

GLEESON CJ: Does that mean that for you to succeed you seek to demonstrate that it is inconceivable that there is any native title right that is not inconsistent with a lease of this kind?

MR JACKSON: Yes, your Honour. No native title right which involves entry upon the land ‑ ‑ ‑

GLEESON CJ: Or perhaps more accurately, no conceivable native title right which falls within the claim made in the present case.

MR JACKSON: Yes.

KIRBY J: But there were reservations in respect of tracks.

MR JACKSON: Yes. I was intending to exclude those, your Honour, but they are reservations in relation to the use by anyone of roads or tracks.

KIRBY J: They were presumably included, though, historically for Aboriginal tracking.

MR JACKSON: We are not really talking about land as in Wik. This is hardly land where this is the first time there has been some dealing in relation to it. There had been various agricultural holdings and use of it for a period since at least 1877. So, if one says there are tracks, there may well be tracks. They may well have been used by persons who were Aboriginal. But, at the same time, equally they may well be tracks created by prior use of the land. Your Honour, I think I have said it already, this is not land that in some way one could treat as vacant land, there being a huge holding over it.

Your Honours, could I say that the Court’s decisions on native title, in dealing with the issue, take the view that if there is the grant of exclusive possession, that is sufficient to extinguish native title. May I go immediately to the legislation in question, which, as I said, your Honours will see in volume 1. I should perhaps say I mentioned that the land had been the subject of previous holdings since 1877, much larger ones. Your Honours will see those referred to in volume 14 page 2923A through to page 2926, I think, and in fact the area had been part of a holding called “Angledool”, a previous holding which had come to an end. Your Honours, the leases were granted under legislation which was intended to provide ‑ ‑ ‑

GUMMOW J: What is the purpose of this – are these said to be extinguishing Acts?

MR JACKSON: No, your Honour. I referred to the fact before, that there had been previous holdings in relation to it.

GUMMOW J: Yes. So?

MR JACKSON: We do not suggest they are extinguishing. All I am seeking to say really is that this is not land which was untouched before and ‑ ‑ ‑

GUMMOW J: So? We seem to be getting into facts, that is all. Otherwise the record is nude of fact.

MR JACKSON: Your Honour, could I just say in relation to it, I was giving a reference really to something I had said in answer to Justice Kirby. There your Honours will see the references. What I am seeking to say, however, is that one is not talking about holdings which, to use the words of some of your Honours in Wik, were vast or huge. One is talking about leases which were granted under legislation which is intended to provide holdings for return servicemen from World War II. The area, your Honours – and one is speaking, of course, not about the 1890s or the early part of the century, but one is speaking now about 1953, 1951, that time – the area was one where the effect of the grant of a lease on Aborigines must have been known – the existence or otherwise of Aborigines must have been known.

Your Honours, this is not, if I could just say so – coming to the Act itself – legislation where the starting point is simply the exercise of a power to grant a right with the question then being whether that grant has the effect that the grantee has exclusive possession. The statutory position under the Western Lands Act was, first, that a decision had to be made to remove Crown land from its status, as such, and to bring to an end reserves in it, with a view to its use for particular purposes and then to invite persons to apply for leases of that land.

The starting point may be seen at page 98, where your Honours will see section 23(2). As your Honours will see from subsection (2), which is in form a restraint upon the exercise of power, it says that:

Except as otherwise provided in this Act, the Minister shall not grant a lease of any Crown lands unless such lands have been set apart for disposal by notification in pursuance of section twenty-four –

and, your Honours, the method of the setting apart is set out in section 24(1) and that is that there has to be a:

notification in the Gazette that the Crown lands comprised within any area to be described in the notification shall be set apart for disposal ‑ ‑ ‑

GLEESON CJ: Just before you go further, I think there may be some cases that actually examine this, but what is the point of granting a lease in perpetuity, as distinct from an estate in fee simple? The concept of a lease in perpetuity on its face looks like a contradiction in terms, does it not?

MR JACKSON: Except, your Honour, no doubt it is – and I will come to this a little later. A lease in perpetuity is, if one looks at it in the terms of this Act, a lease which provides for an extended term. Your Honours, could I just say a couple of things about it and, as I said, I will come to it in a moment. The point of granting it, your Honour, is no doubt to give to lessees a greater security in terms of tenure of the land. I think the tenure of the land is something which may well be of value in terms of obtaining funds in relation to it and perhaps obtaining persons who might be inclined to buy it.

KIRBY J: Your submissions suggest that it may have some historical reason in colonial times in respect of the concerns of settlers and so on. I think Justice Gaudron in Wik attached significance to the words “in perpetuity” which I think was a feature of the pastoral leases in consideration there.

MR JACKSON: Yes.

KIRBY J: It may be for the same colonial reasons.

MR JACKSON: Yes, your Honour. It also, of course, if one goes to the United Kingdom, whilst leases in perpetuity were not part of the common law, there were some leases for very, very long periods, hundreds of years, which in some respects had similarities with leases in perpetuity. Your Honour, the concept of a lease in perpetuity as remaining a lease has been adverted to on a couple of occasions in the Court. I will give your Honours reference to those in a moment.

GUMMOW J: Do we not have to look at section 242 of the Native Title Act, section 242(1)(c)? What the Chief Justice says must be correct. However, the Act deals with it in paragraph (c). This instrument is described as a lease.

MR JACKSON: Yes, your Honour.

GUMMOW J: Therefore, it is a lease for the purpose of the Native Title Act. The question then requires one to go to section 248 and then section 248A, does it not?

MR JACKSON: Yes, I accept that. It is an exclusive pastoral lease, yes.

GUMMOW J: Then it becomes a question of section 248A. Does it confer “a right of exclusive possession over the land”, or is it “a Scheduled interest”? We find the schedule at page 325 of the print. It does not seem to be. Various interests under the Crown Lands legislation in New South Wales are scheduled interests. I think I am right, but I would like to be assured that this is not one of them. So it just becomes paragraph (a) of section 248A. That is the question. If it is, then one is in section 23(b) as picked up by the State legislation.

MR JACKSON: Yes, your Honour, that is the position.

GUMMOW J: That is the way it works?

MR JACKSON: Yes.

GUMMOW J: So it is what this phrase means, “confers a right of exclusive possession over the land”?

MR JACKSON: Yes.

CALLINAN J: I suppose one reason for a perpetual lease is to enable a lessor to control the revenue in perpetuity from the lease, to enable the land to continue to generate income by way of rent.

MR JACKSON: Yes, your Honour, so far as the lessor is concerned, that is what the lessor gets. The lessor, no doubt, has some rights given pursuant to the statute or pursuant to the lease, so far as the lessor is ‑ ‑ ‑

CALLINAN J: That would explain the reason for doing it, rather than granting a freehold title.

MR JACKSON: Your Honour, that is undoubtedly a reason for doing it. If one were to grant freehold, I suppose from the Crown’s point of view, then there would be no revenue to be obtained. Also, there may well be difficulties in having provisions enabling the land or requiring the land to be used for particular purposes thought advantageous.

KIRBY J: I rather gathered from your submission that Earl Grey, or it may have been some other Imperial officer, was pressing for licences and at least for leases for terms in order to protect the Aboriginal people in respect of areas such as the area in which this lease exists.

MR JACKSON: Yes, your Honour.

KIRBY J: There was pressure from the Imperial authorities to protect the Aboriginal people and pressure from the local settlers and their parliaments to increase the grant to the local occupier.

MR JACKSON: Well, your Honour, it is the type of conflict that one might expect to have occurred.

KIRBY J: We saw it recently in the Western Australian case which you argued, the conflict between the Imperial authorities and the locals.

MR JACKSON: Your Honour, I am innocent. Your Honours, there are a number of Western Australian cases, the one in which the Court gave judgment that I take your Honour is referring to, yes.

KIRBY J: Whether you were innocent or not, you were successful.

MR JACKSON: Unsuccessful, your Honour, entirely unsuccessful. However, your Honours, could I invite the Court to note a number of features about section 23 at this point. The first is that your Honours will see from section 23(1) that the provision refers to leases of Crown lands. Your Honours, that is a term which is defined in section 3 which your Honours will see at page 58. The definition simply tells one at page 58 that it:

means Crown lands within the meaning of the Crown Lands Acts –

and your Honours will see that Crown Lands Act is defined to mean:

the Crown Lands Consolidation Act 1913 –

that is to be seen in volume 7 at page 1287, and the definition on that page in section 5 is:

lands vested in His Majesty and not permanently dedicated to any public purposes or granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts.

GAUDRON J: That means, does it, that land which is the subject of a lease in perpetuity remains at all times Crown lands as defined?

MR JACKSON: Yes, it probably does under the Western Lands Act.

GAUDRON J: Therefore, no question of reversion ever arises, as arose in Wik?

MR JACKSON: Well, your Honour, no question of reversion in that sense. Your Honour will see, however, that the way in which the definition is framed is to speak of it as land vested in the Crown and in relation to it, one simply is speaking about a grant and what the grant conveys. What I am seeking to say about it, your Honours, is this, that one sees in, for example, Mabo, reference by Justice Brennan to the creation of a reversion by the grant of the lease, with the consequence that there is an extinguishment of any native title rights forever, as it were. Whether there can be a revival of them may be a difficult question and it may be that in the end the view is taken that the native title rights in some cases can revive at the expiration of the lease but it does not in the end, in our submission, affect the question of the effect of the lease itself.

GAUDRON J: It does mean we are talking about a purely statutory notion, does it not?

MR JACKSON: Well, your Honour, it is right to say, of course, that it is statutory but to ‑ ‑ ‑

GAUDRON J: With none of the essential features of a lease at common law.

MR JACKSON: No, your Honour, with respect, what I would say about that is ‑ ‑ ‑

GAUDRON J: Well, without some of the essential features.

MR JACKSON: Your Honour, with respect, we would submit not. I accept that so far as the landlord or lessor is concerned, that there is not a reversion or there may not be a reversion in the same sense as there would be if the landlord held a fee simple title. But having said that, and this is the ultimate hypothesis upon which the position in relation to leases and the extinguishment of native title is concerned, one is dealing with an interest granted by the Crown. In Australia that has to be a lease granted pursuant to statute, at least since the middle of the 19th century. It will always be a lease granted pursuant to statute.

So too in the end, your Honours, would a fee simple because it is a disposition by the Crown of an interest in land; it has to be by statute. Now, your Honours, having said that, one does start with the statute. The question, however, is what is granted by it. If one looks to see what is granted by the statute, then the description of it in the statute, though not decisive, takes one some distance along the way. May I come to that in just a moment.

I referred to the fact that the provision referred to Crown land. The second thing, your Honours, is this, that if one goes to the terms of section 23(2), your Honours will see that it speaks of setting apart for a purpose, the purpose being “for disposal” and the term “for disposal” does carry with it the suggestion, in our submission, that the Crown is not so much granting an interest in, but rather disposing of its interest in, land - in accordance with the statute, of course.

The third thing is this, that the restriction imposed by section 23(2) is a restriction on the grant of a lease. No doubt what that term means is to be derived from the terms of the Act but prima facie, in our submission, the usage is appropriate to describe an interest conveying exclusive possession. Could I give your Honours two references in that regard from Wik 187 CLR 1. The passages to which I wish to refer are Chief Justice Brennan at page 76, your Honour Justice Gaudron at page 151. As to the first of those, at page 76 your Honours will see after the quotation his Honour saying:

Although it is the substance of the rights conferred and not the description of the instrument conferring them which is the ultimate touchstone for determining whether a lease has been granted, the ordinary rules of interpretation require that, in the absence of any contrary indication, the use in a statute of a term that has acquired a technical legal meaning is taken prima facie to bear that meaning.

Your Honours will see that developed on the top of the next page to about halfway down the page.

Halfway down page 151, your Honour Justice Gaudron said:

Ordinarily, words which have an established meaning at common law are construed as having the same meaning in a statute unless there is something in the words or the subject matter of the statute to indicate otherwise. This is but an instance of the general rule that statutes are not to be construed as altering common law principles unless that is clearly intended.

Your Honour then quoted from Justice Mason in the American Dairy Queen Case and your Honours will see the passage there set out. Then your Honour on the next page referred to the issue that had been adverted to by Chief Justice Brennan in that passage to which I referred. I am referring now to page 152. Your Honour said in the first new paragraph that:

the question . . . is a question of substance not one of language . . . it is a question to be answered, at least in the first instance, by asking whether the instrument in question confers a right of exclusive possession.

GUMMOW J: The Native Title Act now takes as a postulate that you can have something granted which is not a lease as understood at general law but which is treated as a lease under section 242 but which, although not a lease at general law, on analysis confers a right of exclusive possession. So, in other words, the Native Title Act does not treat the one as a reflex of the other any more. You can have a right of exclusive possession without the instrument conferring it having to qualify as a lease at general law. So things have moved on from Wik, it seems to me.

MR JACKSON: They have, your Honour, yes, that is true. The point of course in the present case is that to arrive at the right of exclusive possession in the present case, one looks at a number of things, but the best indicator in a sense is in the particular case, in our submission, the description of the lease and the various rights conferred.

GUMMOW J: Yes, but it is not a lease, we know, because it is in perpetuity. It just is not a common law lease. There is no such creature, so we have to get into statute at some time.

MR JACKSON: Your Honour, I appreciate it is not a lease in the full common law sense. What I am ‑ ‑ ‑

GUMMOW J: What other sense is there? Statutory sense?

MR JACKSON: Well, it is, of course, your Honour. If one looks at the ‑ ‑ ‑

GUMMOW J: Native title statute sense.

MR JACKSON: Your Honour, what it is: it is a statutory thing – if I could use a neutral term for the moment, but ‑ ‑ ‑

GUMMOW J: It is one statute looking at another statue. That is what as are doing.

MR JACKSON: Yes, your Honour. What I am seeking to say, however, is that when one comes to the statute from which one seeks to derive the nature of the rights which might qualify under the Native Title Act provisions, what one sees, in our submission – and I will come to this a little later – is that it is speaking of something, in the first place, that is a lease, and then speaks of the “term” of such a thing being extended – that is the expression used by the statute – so as to become what it describes as a lease in perpetuity, and what we are seeking to ‑ ‑ ‑

GUMMOW J: But this grant was perpetual from the outset, was it not?

MR JACKSON: Yes, your Honour. No, I am sorry ‑ ‑ ‑

GUMMOW J: That is the extinguishing act, is it not, the grant of this lease?

MR JACKSON: Yes, your Honour. I am sorry. What I am seeking to say about the Act, however, is this, that the way in which it is framed seems to indicate that the concept it is describing, when it speaks of a lease in perpetuity, is something that has the attributes of a lease but is for a longer period. That is all I was seeking to say about that. I will show your Honours the provision in a moment. I said about section 24 – and if I could come to section 24(1), your Honours will see that that is the provision that enables the Minister – this is at the bottom of page 98 of volume 1. At the bottom of page 98, your Honours will see section 24(1) enables the Minister to declare that the Crown lands within the area are to be set aside for disposal. Your Honours will see then that is referred to as being by way of lease, in one of the ways set out in paragraphs (a) to (d), at the top of page 99.

Now, as is apparent from section 24(2), the Minister is obliged to specify the purpose or purposes for which the land is set apart, and the effect of the setting apart is that any existing reservations in the land come to an end. Your Honours will see that in section 24(6), on page 100, with the qualifications to that proposition in the concluding words of the first paragraph of section 24(6) and the proviso in the third paragraph. The Minister is able to subdivide the land “into blocks of such areas as the Minister may determine” – that is in section 24(4)(b), on page 99 - and the land becomes subject to applications. Your Honours will see applications provided for by section 25(1), at the bottom of page 100.

Your Honours will then see that persons may apply, and what they apply for is at the bottom of page 100, top of page 101: they make applications for leases. The leases that are contemplated by the Act are those referred to in section 23(1), and they are leases of Crown lands:

(a) as leases in perpetuity; or
(b) for any term expiring not later than the thirteenth day of June, one thousand nine hundred and seventy-three.

And any leases as described:

so granted shall except as otherwise provided in this Act be subject to the general provisions of this Act.

Your Honours, the notification that is contemplated by section 24(1) your Honours can see in the particular case in volume 14 at page 2962 and following. The relevant parts of it are in the right column at page 2962 at the top of the page about the first 10 lines. Could I just pause to say, your Honours will see reference to the War Service Land Settlement Act 1942. The provisions of it do not really advance the matter one way or the other, they simply provide that persons who otherwise qualify pursuant to that enactment are able to apply and have some preference in relation to obtaining rights under a number of enactments, including the Western Lands Act. The relevant provisions are section 1 and section 3.

That is the opening part of it. The relevant parts, so far as the particular case is concerned is at page 2965 and your Honours will see Block No 13333. That is the block that is referred to. Your Honours will see the name of it and under the class of country the names of the paddocks which, prima facie, would seem to make it difficult to think that those involved were not aware of the fact that there had been some Aboriginal interest in the land.

Now, could I return then to the terms of the statute. In dealing with the possible extinguishment of native title it seems, with respect, in our submission, a curious thing if the statute is to provide for a land to be used for specific purposes and for leases to be applied for and if one applies for a lease of one of the types provided for under the Act but what one gets is something which is not a lease. Your Honours, in our submission, the additional provisions of the statute suggest strongly that what is contemplated by the statute is the grant of a lease and something which confers exclusive possession.

Could I, in that regard, take your Honours to section 23(1) at page 98. Your Honours will see, as has been observed, that one of the forms of lease contemplated by the Act is a lease in perpetuity. No doubt, a lease in perpetuity is not something found in the common law but, your Honours, it is not, with respect, a foundling, as it were. There are other members of the family in the sense that it seems to be something bigger than a lease for a term but smaller than a fee simple and the Act makes it apparent enough, in our submission, that the lease in perpetuity is to partake of the same nature, so far as it can, as a lease for a term but is to be for a longer period.

Now, could I take your Honours very briefly to some provisions of the Act in that regard, first of all to section 18E, which is at page 86. Your Honours will see subsection (1) which allows “The holder of a lease” to apply “to have such lease”, as it is put, “extended to a lease in perpetuity”.

McHUGH J: What section is that, Mr Jackson?

MR JACKSON: Section 18E(1), page 86, your Honour. So the expression used there is “extended to a lease in perpetuity”. Your Honours will see in section 18E(3) on the next page, at the bottom of page 87, top of page 88:

the instrument of lease shall be lodged . . . in order that a notification of such extension . . . may be endorsed thereon.

The second paragraph of subsection (5) of the same provision at page 88 and the notification of extension again. Then at the top of page 89 subsection (11) says:

The rent payable in respect of a lease extended to a lease in perpetuity –

Your Honours, the point which emerges, in our submission, is that those provisions treat a lease in perpetuity as a, temporally, as it were, extended version of a lease and speak of a lease itself in terms which are those of the general law. Your Honours would see, for example, in section 18E(4)(a) on page 88 a reference to an “instrument of lease”. In paragraph 4(b) “the term of the lease subsisting at that date”, and in subsection (11) at page 89, in the third paragraph, “redetermining such rent”.

KIRBY J: I am now a little bit confused, because 18A – I thought that all these leases were leases in perpetuity.

MR JACKSON: No, I am sorry. If I could just go back to section 23(1), at the top of page 98, the leases could be either granted, as you will see from (a) and (b) “in perpetuity; or for a term”.

KIRBY J: I see.

MR JACKSON: If your Honour bears in mind, the form of the Act to which your Honour is looking is the one in being at the time when the lease was granted, so that is why it speaks of 1973.

McHUGH J: And 18E was introduced in 1932 during the Depression and leases in perpetuity can only be obtained in respect of areas equivalent to the home maintenance area except in some special cases where there could be two size home maintenance areas, is that right?

MR JACKSON: Yes, your Honour. Is your Honour referring to section 23(3)?

McHUGH J: I really had in mind 18E itself and what was said in the second reading speech of the Secretary of Lands.

MR JACKSON: Yes. What your Honour says is right, I think. Your Honour will also see section 23(3), that:

The Minister shall not grant a lease in perpetuity to an applicant who holds under any tenure . . . an area of land which when added to the land applied for would substantially exceed a home maintenance area.

McHUGH J: Yes.

GLEESON CJ: Was the expression “closest settlement” used in relation to this policy?

MR JACKSON: Your Honour, I think the answer is no.

GLEESON CJ: Do not worry about it at the moment, you can ‑ ‑ ‑

MR JACKSON: I will endeavour to give your Honour an answer to that. It is used, of course, for some policies. Whether this one, other than a colloquial sense, your Honour, I am not ‑ ‑ ‑

GLEESON CJ: I notice from some of the material you referred to earlier that these soldier settlers received not only what we would now call a “rent holiday” during what they described as an “assistance period”, but they also got a living allowance.

MR JACKSON: Yes. Your Honour, in that sense, as no doubt was the case after the World War I, there was some closer settlement involved. One can see that in a particular case from the fact that the former holding had become a number of different places. Whether it was used in that sense – in a particular sense, is another question.

Your Honours, could I just say in response to your Honour Justice Kirby, why I was referring to section 18E was that it gives some clue as to the concept contemplated by lease in perpetuity.

KIRBY J: I can see how once you look at paragraph (b) in section 23(1), you can understand the ‑ ‑ ‑

MR JACKSON: One sees, for example, if I could take your Honours back to page 99, section 24(2) where:

The Minister is to specify in any such notification that the land is set apart for the purpose of grazing or grazing and agriculture combined or mixing farming, or for any similar purpose or purposes.

GLEESON CJ: I notice that the lease that you showed us is described in its top left‑hand corner as a “Soldier’s block”. Is that expression “Soldier’s block” a term of art?

MR JACKSON: No, your Honour. It is a description really of a block to which the – a block contemplated by the war service enactment, to which I referred a moment ago.

GLEESON CJ: I see, thank you.

MR JACKSON: The War Service Land Settlement Act that your Honour will see referred to in the second line of the preamble to ‑ ‑ ‑

KIRBY J: That was a State Act, was it? So no federal intrusion into this?

MR JACKSON: Your Honour, I think in fact, there is a ‑ ‑ ‑

KIRBY J: It might have been funding.

MR JACKSON: ‑ ‑ ‑ federal Act which deals with it. I just cannot recall the name of it. But one of the cases in this Court deals with ‑ ‑ ‑

McHUGH J: Pye v Renshaw.

MR JACKSON: Yes, your Honour, that is it. Pye v Renshaw deals with the intersection of the two enactments.

Your Honours, if one goes to section 24(2), what one sees is that the same type of instrument, or the same type of grant, is contemplated where the type of use of the land in question may be one which is relatively intensive, or not intensive. It might be farming or it might be grazing, but whichever it is, the same type of interest is dealt with in similar provisions.

GLEESON CJ: Is that a typographical error on page 99, line 18?

MR JACKSON: It should be “mixed”.

GLEESON CJ: Should it?

MR JACKSON: Yes, your Honour, I think.

GAUDRON J: It may be that the Act deals with them that way, but the Native Title Act does not.

MR JACKSON: Your Honour, the Native Title Act, for present purposes, does not touch this enactment. I am sorry, your Honour. What I mean by that is that this is not something dealt with specifically by the Native Title Act.

GAUDRON J: But the schedule treats them differently.

HAYNE J: Are not some forms of the leases under this Act scheduled interests?

MR JACKSON: Your Honour, some are.

GUMMOW J: Even under section 23?

MR JACKSON: Yes, your Honour, I am sorry, what I am ‑ ‑ ‑

HAYNE J: Schedule 1, Part 1, item (4).

MR JACKSON: Item (4), yes. I am sorry, your Honour, I misunderstood what I was being asked. If one looks at the terms of item (4) - and your Honours, the position I think your Honours will find from the parliamentary debates about leases of the present kind was that it was left for resolution - this type of lease of which the Court is presently concerned - by the courts, as distinct from being included in the schedule.

HAYNE J: On the hypothesis that leases of the kind with which we are now concerned are pastoral leases of one sort or the other. They are either exclusive or not exclusive.

MR JACKSON: Yes, your Honour, yes, that is so.

HAYNE J: It seems to bring us back to the Native Title Act at some point.

MR JACKSON: Well, your Honour, I accept that, but the point I am seeking to make about it, your Honour, is when one gets there ‑ ‑ ‑

HAYNE J: One should arrive suitably equipped with baggage, Mr Jackson.

MR JACKSON: Of course, your Honour. May I say, in relation to it, when one gets there, what one does find is that there are really two doors at the station through which one goes. One says “exclusive possession” and the other says “not exclusive possession” and, your Honour, that is, fundamentally, what is provided for. Your Honours, the position when one gets there, is that that is the question, and I am happy to take your Honours to it and I will do so. But the reason why I am carrying the bags is to endeavour to answer the question that is posed.

Your Honours, what I was seeking to do was to say that if one looks at the terms one sees in, for example, section 23 - if I might perhaps take your Honours to section 23(4)(a) at page 98 - what your Honours will see is that it uses a number of terms which are apposite to those of a lease. Your Honours will see the words used are “lease”, “area leased”, “term” and “amount of rent”. One sees in section 23(4)(b) the expression “first year’s rent”, and your Honours, in relation to leases, the decisions in this Court in - observe upon leases in perpetuity, suggest that the difference is to be found in the link of the term.

Could I give your Honours two references? The first is Fisher v Deputy Federal Commissioner of Land Tax (1915) 20 CLR 242 at 248. Your Honours, I am sorry, I think that is not on our list. We have some copies here for your Honours. Can I give your Honours the second case as well? Now, your Honours, I was going to refer to page 248 where Justice Isaacs and Justice Gavan Duffy, in Fisher, referred, about, a little past halfway down the page, the expression “perpetual lease without revaluation”, and said:

In the first place, a perpetual lease is in its nature inherently distinct from a fee simple. That distinction is recognized by the Privy Council . . . in adopting the following words of Jenkins J in a Calcutta case -

and your Honours will see, speaking of the law of India, a few lines into the quotation:

The law of this country does undoubtedly allow of a lease in perpetuity . . .
A man who, being owner of land, grants a lease in perpetuity carves a subordinate interest out of his own, and does not annihilate his own interest. This result is to be inferred by the use of the word lease, which implies an interest still remaining in the lessor.’” The force of this distinction is not lost merely because the Crown is the landlord. As in the case of a subject, something less than the full estate of freehold is parted with -

The decision of the Privy Council does not add anything to that quotation.

The other decision is Hawkins v Minister for Lands (1949) 78 CLR 479. There are two references I wanted to give your Honours: page 487, Chief Justice Latham, and page 492, Justice Dixon. At page 487 Chief Justice Latham said:

The definition does not provide that lands which are the subject matter of lease or licence shall also be excepted. Under a Crown lease, even though it is a perpetual lease, the Crown has become the landlord of the lessee, rent is payable to the Crown as landlord, and if the lessee does not perform the conditions of the lease the lease may be forfeited and then the Crown would have a complete title free from the lease.

Justice Dixon at page 492 in the fifth line on the page said:

Because it is a Crown lease in perpetuity the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non‑payment of survey fees, of forfeiture.

It goes for about another six or seven lines down the page.

Could we say that the Act also appears to draw a distinction between leases on the one hand and lesser interests on the other. Your Honours will see, for example, section 23(3). There is a reference to other interests:

annual lease, preferential occupation licenses, occupation license or permissive occupancy –

While interests other than, I think, annual lease are not granted under that Act, they are interests which may be preserved, having been granted under earlier versions of the enactment and preserved when the enactment came into force.

HAYNE J: But they are all statutory forms of holding, are they?

MR JACKSON: Yes. Could I take your Honours to the provisions of the Native Title Act. If I could take your Honours to Division 2B which commences with section 23A, your Honours will see that section 23A(4) says that:

This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

Your Honours will see that by section 23C of that Act that there is provision made whereby there has been extinguishment of native title by various things. Your Honours will see at 23C(1) that the provisions refer to:

a previous exclusive possession act under subsection 23B(2) . . .
(2) If an act is a previous exclusive possession act under subsection 23B(7) –

and so on. Your Honours will then see section 23E which says:

If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA –

and so on. The term “previous exclusive possession act” is defined by section 23B(2). Your Honours will see that if:

(a) it is valid . . .
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following . . .
(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

GUMMOW J: Then you have (iv), have you not, as well as (viii)?

MR JACKSON: Yes, your Honour, of “exclusive pastoral lease” which is referred to in section 248A. At 248A your Honours will see at page 373 defines:

An exclusive pastoral lease is a pastoral lease that:
(a) confers a right of exclusive possession over the land or waters covered by the lease –

Now, the provision which takes one to the State Act, your Honours will see is section 23E, and it says:

If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C –

Your Honours will then see the terms of section 23C to which I have taken your Honours and the State Act. The State Act – your Honours may or may not have a loose copy of it, but the provisions are otherwise attached to the New South Wales submissions. Your Honours will see then that section 20 of the State Act is the provision that says:

If an Act is an exclusive possession act under section 23B(2) (including because of section 23B(3)) of the Commonwealth Native Title Act and is attributable to the State:

Then, your Honours will see the consequence is set out in (a) and (b) and the condition of operation, as it were, that allowed the State, in terms of the Commonwealth Act to legislate in that way can be seen by reference to sections 21 and 22.

GLEESON CJ: Is the heading to section 20 that appears in the print part of the Act? The reason that I ask the question is that the concept of confirmation does not appear in the body of section 20 although it appears in section 19.

MR JACKSON: Your Honour, I think the position in New South Wales changed where previously headings like that were not part of the provision. I think they may now be. May I check that, your Honour?

GLEESON CJ: At all events, section 19 carries this notion of confirming something.

MR JACKSON: Yes.

GUMMOW J: And 20(1)(b).

MR JACKSON: Yes, your Honour, the two paragraphs of section 20(1) on the one hand effect the extinguishment and then backdate it, as it were.

GLEESON CJ: What is the relationship between section 20, on the one hand, and the general law? Does section 20 add to it?

GUMMOW J: We have to look at section 23J, do we not, of the Native Title Act, which seems to assume that the statute may affect something that the common law did not, dealing with compensation.

MR JACKSON: Your Honour will bear in mind that the Native Title Act ‑ ‑ ‑

GUMMOW J: But looking at this situation, this particular activity, if the native title owners, assuming otherwise they have made out their case, would be entitled to compensation for extinguishment under Division 2B, that is including under section 20 of the State Act, I guess, only to the extent that their rights had not been extinguished otherwise than under the Act.

MR JACKSON: Yes. Your Honour, it may be that there would be relatively few cases, but some, where, in some applications of the Act, there had not been an extinguishment under the general law provisions but the Act effected one. But your Honour will appreciate, also, that the Native Title Act came in, in effect, in two bursts, as it were. It has been amended on a number of occasions, but the second ‑ ‑ ‑

GUMMOW J: What we are dealing with here is not a past act, because it is pre‑1975.

MR JACKSON: Yes, but it may be that the terms of section 23J would have an application in circumstances where the amendments to the Act that were effected in, I think, 1997 had an operation which might not have been the case under the previous Act.

GLEESON CJ: I am still having a little difficulty relating the concept of confirmation to the concluding words of section 23J(1).

MR JACKSON: Your Honour, it is perhaps, in a sense, an emphatic, in a way. What I mean by that is that if the position were that the native title rights were under the general law – and by that I mean, I suppose, the law as declared in Mabo and since then absent the Act – were brought to an end by the grant of the leases, then section 20(1) is really saying, in a sense, that that is what took place. There has not been any change in that effected by this Act or by, using the Commonwealth provisions, the Commonwealth Act, which ‑ ‑ ‑

GLEESON CJ: Well, take something non-controversial: a grant of an estate in fee simple. Is that an exclusive possession act?

MR JACKSON: I am not sure whether it falls within the definition, your Honour, but ‑ ‑ ‑

HAYNE J: Section 23B(2)(c)(ii). Grant of “a freehold estate”.

MR JACKSON: I am sorry. I did not catch what provision your Honour was referring to.

HAYNE J: It is reciting the alphabet, I fear, Mr Jackson. 23B(2)(c)(ii).

MR JACKSON: Yes, I have it. Your Honour will see that in the Commonwealth enactment.

GLEESON CJ: In relation to a grant of an estate in fee simple, what is the legal effect of section 20(1)(a) and (b) of the New South Wales Act? Do they add anything to the general law?

MR JACKSON: Well, your Honour, it seems not to in respect of that, however, the position is, of course, that the Native Title Act took native title rights, as defined in, I think, section 225, and made them into rights having a statutory base and it is in relation to the rights having a statutory base, as it were, that one sees them regulated by the terms of, effectively, the two enactments. Now, your Honour, it may be that the effect of the two enactments is no different from the position that in the particular case that your Honour is adverting to would be the position under the general law, but one does have a situation where, in terms of the Native Title Act, the way in which it operates is that native title is, as your Honours will see by section 4(1), recognised and protected by the Native Title Act.

GLEESON CJ: But even if it adds nothing to the general law, at the very least it fits into a pattern of compensation or a pattern of statutory provision relating to compensation.

MR JACKSON: Yes, your Honour, yes.

GLEESON CJ: So that when you come to section 23J(1), in the case of a grant of an estate in fee simple in 1940, for the purposes of 23J(1) the native title rights and interests were extinguished otherwise than under this Act.

MR JACKSON: Yes.

CALLINAN J: Mr Jackson, can I just ask you something about the history. I know you do not rely upon any earlier Act, but am I correct in saying that the 1877 demise, if I can use that term, of a run contained a reservation for the Aboriginal inhabitants, a fairly explicit one, and that was issued under the Crown Lands Act, then the first Act with which we are concerned, the 1901 Western Lands Act, made no provision in the standard covenants and terms for any such reservation?

MR JACKSON: No, your Honour, that is so.

CALLINAN J: I am correct in saying that; that reservation disappeared when the 1901 Act was introduced.

MR JACKSON: Yes. Your Honour will see actually the 1901 Act, I think immediately before the Act in volume 1.

CALLINAN J: Yes, that is what I have been looking at, Mr Jackson, and I could not find any reservation referred to anywhere in that Act.

MR JACKSON: No, your Honour, that appears to be the position, yes.

HAYNE J: Just so that I can understand the purpose that lies behind some aspects of the argument, is it the case that the questions that were referred to the Full Court of the Federal Court can usefully be answered only by reference to Division 2B of Part 2 of the Native Title Act and Division 2 of Part 4 of the State Act.

MR JACKSON: Well, that provides the context in which they are arise. I will accept that immediately.

HAYNE J: In what sense can they otherwise usefully be answered?

MR JACKSON: I am not differing from what your Honour is putting to me, what I am saying, however, is that the questions that are asked – and I will just take your Honours to those for a moment.

GUMMOW J: The question seems to have been asked without looking to section 11 of the Native Title Act, as Justice Hayne says.

HAYNE J: Unless we understand the terms that are employed in the questions as terms used in the sense in which they are found in Division 2B Part 2 and Division 2 Part 4 of the Commonwealth and State Acts respectively, we are at risk of the proceedings going awry, are we not?

MR JACKSON: Well, your Honour, except that – and I do not know that it is really suggested that there is any respect in which we are submitting that one would arrive at any different result. The question arises, of course, in the context of the Act, and no doubt one is looking to see what section 11 says. Section 11 says, as your Honour Justice Gummow observed, native titles cannot “be extinguished contrary to this Act”.

HAYNE J: It is more than a statutory context. In the context of the litigation between the parties, the rights of the parties fell to be adjusted according to the Act, did they not?

MR JACKSON: Yes, of course, your Honour, yes.

HAYNE J: Thus, the questions, if they are to have utility, are questions that must be asked and answered by reference to, perhaps only by reference to, the relevant provisions of the Native Title Act and the State Act.

MR JACKSON: Well, it depends, I suppose, what one means by saying “by reference”. I am not meaning to say something that is fundamentally different from what your Honour is putting to me but, your Honour, if one does look at the questions which were asked, the questions use terms which are germane to those issues. They speak of exclusive possession and the native title rights in the context of an application that was before the court. Could I submit, your Honours, that if one goes back to the State enactment – and by that I mean the Western Lands Act – there is not, in our submission, anything in that which suggests that the term “lease” is to have a meaning narrower than the meaning one would attribute to it under the general law.

GAUDRON J: There were certainly provisions there that would indicate that you are not talking about a common law lease.

MR JACKSON: I am sorry, provision in the Western Lands Act?

GAUDRON J: Yes. Are there not? Well, particularly if you take it in combination with the Crown Lands Acts. There was, first of all, the fact that it is a lease in perpetuity. Second of all, the definition of “Crown lands” in the Crown Lands Act.

MR JACKSON: Yes.

GAUDRON J: I do not know what powers there are, but I assume there are certain powers in hearing the Minister, by virtue of the Crown Lands Act, with respect to land that is leased under the Western Lands Act.

MR JACKSON: Your Honour, with respect, no. The Western Lands Act is really relevantly free-standing.

GAUDRON J: Except it is still defined as “Crown lands” for the purposes of the Crown Lands Act.

MR JACKSON: It picks up the definition.

GAUDRON J: In any event, once it is defined as “Crown lands”, once you find you have something that is purely a creature of statute, why would you not look to the statute or statutes to see what its incidents are, and without any preconception as to there being an estate carved out of a fee simple. The reason why a lease in the ordinary sense, or in a common law sense, carries a right of exclusive possession is because it is a term of years carved out of an estate which carries the right to exclude others from property. This is not, apparently, carved out of such an estate.

MR JACKSON: Your Honour, may I say in relation to that, what one sees is that, as your Honour has said, and one is dealing with something that really ex-hypothesised derives from statute, but in deriving from statute, what one sees is that the statue itself does the carving out.

GAUDRON J: We can find out what it carves out, in a sense. We cannot. Can we find out what the statute carves out? I do not think we can. I think you have to go to the lease to see what is carved out, and that seems to be outside the questions that are posed.

MR JACKSON: It is not, your Honour, with respect. I will take your Honour to the questions in a moment, it is certainly question 2. If we can deal with the first of the things your Honour put to me. The position, in our submission, is this. If one is looking to see what is carved out, one looks to see what the powers are given by the statute. The statute uses terms which, in our submission, indicates the nature of what it is seeking to carve out. It does that by selecting, not necessarily decisively, but by selecting the term “lease”, and in the ordinary course of events one would expect, absent other indications, “lease” to indicate something which, so far as apposite to the land in question, has the same incidents to the lease, and indeed, if one sees the term “perpetual lease” used in a context where there is already lease for a term, there is rent and all things of that kind, and sees that the term of the lease may be extended to make it a perpetual lease then one has a situation, in our submission, where what is contemplated by the statute is that the right being conferred is one which is not fee simple, of course. Not a lease in the traditional sense, but something larger than a lease, but not as ample as a fee simple.

Now, if that is the correct approach so far as the statute is concerned, then, in our submission, the one thing that would be reflected in the species forming part of the genus of 3, as it were, would be right of exclusive possession, in our submission, because that would be the incident one would expect. Now, if one goes to the lease itself, one sees that the terms of the lease, in our submission, really reflect the powers conferred by the statute. They do not go beyond it. What is granted is a lease and not narrower than that.

MR BASTEN: Your Honour, there are a number of provisions of this legislation to which your Honours were taken this morning, of which one could, I suppose, say two things. Either those rights demonstrate the fact that absent an express provision, the person would not have any such right because one assumes a right of exclusive possession, or one sees these rights as merely declaratory of what the common law position would be in any event. The same with the absence of a right. My friend says there is no express right to exclude trespassers in this legislation. We quibble with that, but he says that. If that is right, he says that it cannot mean that the Parliament left us without any right, therefore it demonstrates that that right must be inferred from the general nature of the grant. What we were going to put, your Honours, in ‑ ‑ ‑

HAYNE J: Can we come at the problem presented by the Chief Justice by considering, for example, a grant of a lease made today in respect of land over which, let it be assumed for the purposes of argument, there is undoubted native title rights and interests existing. Let is be assumed that lessor says to lessee, be the lessor State or private person, “I give to you exclusive possession of the land”. That would, given section 11, mean still would it not, that the native title remained unextinguished?

MR BASTEN: Unless the Native Title Act provided otherwise.

HAYNE J: Just so. So that to identify whether as between grantor and grantee there is provision made, be it express or implicit provision, “I grant to you exclusive possession of the land” may leave unresolved the question.

MR BASTEN: Yes, indeed.

HAYNE J: And, in particular in the case of grants made pre‑Native Title Act the conclusion that a grant was a grant of exclusive possession is a conclusion that is determinative of the question. It does not leave as a separate question for later consideration whether native title rights remain unaffected. You have concluded that question by your earlier conclusion that the grant was a grant of exclusive possession, but that is the question that is for consideration, whether the grant was a grant of exclusive possession.

MR BASTEN: Is your Honour putting that as a question which arises by virtue of section 23C?

HAYNE J: Section 23B ‑ ‑ ‑

MR BASTEN: I did not mean specifically but I would accept that, yes.

HAYNE J: Section 23B, particularly, is engaged by those species of pastoral lease that are exclusive pastoral leases.

MR BASTEN: Yes, that is so. Well, as long as one starts with the Act.

HAYNE J: Just so.

MR BASTEN: Yes, I would accept entirely what your Honour puts to me. What your Honour says is that the consequences must follow.

HAYNE J: But there is no separation of the questions. You conclude it once you have determined exclusive possession.

MR BASTEN: In effect.

HAYNE J: Yes.

MR BASTEN: That is perhaps merely an illustration of why questions (b) and (c) were misconceived because they did not seek to ask or answer the question under the Act; therefore, it was seen necessary to do it in two stages, as I would apprehend it.

MR BASTEN: Your Honours, I think if I might come back to the test which I was seeking to formulate, the issue then is whether the grant in 1953 of the pastoral lease conferred on the pastoralist a right and a power to exclude Aboriginal people from the area of the lease, in the absence of an express term to that effect, which is common ground, it must be inferred and as a matter of inference it must be necessary to give effect to the interest granted. The applicant as ‑ ‑ ‑

McHUGH J: You assume – and certain remarks have been made during the argument – that this is a statutory lease.

MR BASTEN: Yes.

McHUGH J: I am by no means convinced that this is not a common law lease and that if you look at the Western Lands Act, 1901, when it was enacted, it amounted to no more than a grant of a ministerial power to grant common law leases in respect of Crown lands in certain areas. It seems to me there is a world of difference between the Western Lands legislation and the legislation considered in Wik or, for that matter, Crown Lands Consolidation Act. It was a very simple statute, and it still is, except that since 1932 it has had the lease in perpetuity, but before 1932 it seemed to me strongly arguable if you look at the legislation; it was simply granted a power to the Minister to grant common law leases and, indeed, in MacIntosh’s Case, in the Court of Appeal in New South Wales, Justice Mahoney thought it was a common law lease. So you proceed along your own path, but for me it is not as clear cut as saying this is a statutory lease under the Western Lands Act of New South Wales.

MR BASTEN: Yes. Well, your Honour, can I deal with that in two ways. I understand the point your Honour is making about the simplicity, but might I seek to answer that by saying that that assumes that the Western Lands Act stands, as it were, alone to an extent which we do not accept, because the comparison with the Crown Lands Consolidation Act suggests that there are a number of aspects of that legislation which continue to operate in relation to lands in the western division, including this lease. Perhaps I might just illustrate that point if your Honours still have the large copy of the lease that your Honours were provided with before. At the bottom of page 1, there is just above line 50:

And Further Reserving unto Us Our Heirs and Successors the unrestricted right to proclaim Travelling Stock Camping or other Reserves within the said land and to withdraw any land for the purpose of Roads Travelling Stock Camping or other Reserves without payment of any compensation therefor: And Further Reserving . . . all powers and provisions necessary for the resumption as hereinafter provided of the said lands or any part thereof for mining purposes townships or any public purpose mentioned in or declared as such under the provisions of the Crown Lands Consolidation Act 1913 -

Now, that is an example, we would say, your Honour, of an acknowledgment in this particular document that there are a number of very important powers contained in the Consolidation Act which are expressly reserved as applying to this leasehold.

CALLINAN J: Mr Basten, taking that one, is there provision for compensation if that occurs?

MR BASTEN: Not in relation to the first group mentioned.

CALLINAN J: No, but ‑ ‑ ‑

MR BASTEN: In relation – your Honours can ‑ ‑ ‑

CALLINAN J: I am sorry, I did not mean to interrupt you, Mr Basten. I apologise.

MR BASTEN: No. No, your Honour is drawing attention to a distinction between the two. One is said to be without compensation. That point is not make in relation to the second group. I will come back to the question of compensation, if I may, but what I did want to say was that one does not treat the first group as in some different category in relation to the point I am making because one will find no provision in relation to the declaration of travelling stock reserves in the Western Lands Act, so that it must be an acceptance of the continued operation of the Consolidation Act in relation to these lands which bases that power.

McHUGH J: Not necessarily. I mean, this is done by way of contract.

MR BASTEN: That brings us to a separate question, your Honour, as to what that means because a large number of these provisions are expressly provided for by the statute.

McHUGH J: Yes.

MR BASTEN: Perhaps I need to come back to that point in a moment. What I wanted to say, though, in relation to ‑ ‑ ‑

McHUGH J: But the point I was making here, so that there will be no mistake about it, is that it is not as if we are dealing with a whole host of tenures of different sorts, a bewildering number. When this Act was passed in 1901 it simply gave the Minister the power to enter into a lease. Now, if he has asked some lawyer, “What does that mean?” he would have told, “Well, it is an ordinary common law lease”.

MR BASTEN: Yes. But what is significant about that we say is two things. Firstly, it is a reservation, as it were, of the power of alienation in relation to the western division that does not apply and, as your Honour has held in Minister for Natural Resources the Crown lands provisions in relation to occupation licences apply in the western division so that there was no abandonment, as it were, of the power to grant those licences in the western division but the question is whether or not by treating a range of leases in a specific way one does what your Honour is saying and incorporates, as it were, elements of the common law which are assumed to apply to these leases even were that not the case under the Consolidation Act.

What we say about the scheme of this legislation is that it has two underlying policies. One is to ensure that the lands in the western division are subject to an unusually high degree of Crown control by way of not simply use of the land, as Mr Jackson would put it, at the lessee’s whim, but use limited to a specific purposes, usually grazing, as in this case, a use which requires the lessee to develop the land for that purpose but prohibits the lessee from overstocking, a term which is defined in terms of the Minister’s satisfaction as to what constitutes overstocking, subject to the right of the Minister to tell the lessee to fence off parts of the land and regenerate the grass or grasses – all of these are contained in the terms ‑ ‑ ‑

CALLINAN J: But how are those different in quality from, for example, a lease to a storekeeper in a shopping centre? He will be obliged not to carry on certain types of business, he will be advised to do certain other things in comity with all the other tenants in the shopping centre. It seems to me that in quality those sorts of obligations, both negative and positive, are no different from what one encounters every day in commerce, commercial leases.

MR BASTEN: Can I deal with the question of a commercial lease separately, your Honour, because I understand the point your Honour is making. The point I am seeking to make has two aspects to it, and perhaps I should simply state them. The first is that it is the Crown which provides the level of regulation and control and that brings one to a question as to the Crown’s rights in relation to these lands which, as your Honour Justice Gaudron has pointed out more than once, remain Crown lands. The other point I was seeking to make is that the Crown does not retain this level of control in relation to pastoral leases in other parts of the State then granted under the 1913 Act.

So that it is really, in part, in answer to your Honour Justice McHugh’s point, that this seems to be, as it were, taking these leases out of the 1913, or its predecessor, and allowing for a greater level of implication of rights and obligations under the general law, as opposed to imposing on these leases a high degree of regulation.

Perhaps what I was going to say – and might I just put this aspect of the argument fully before leaving the answer to your Honour’s question. Of these various terms and conditions which may vary between Queensland leases and Crown lands leases in New South Wales and this lease, it seems to us that the high point of the applicant’s case is the absence of an express provision conferring a power to eject all people, Aboriginal people, and the equivalent, namely, an unrestricted right to bring actions for trespass or to obtain that ejectment.

If that is correct, there is also an absence of control by the Crown which, we say, is not correctly identified without considering the way in which the Western Lands Act interacts with the 1913 Consolidation Act. May I just take your Honours to the Crown Lands Consolidation Act in volume 7 of the bundle of documents. What Mr Jackson took your Honours to earlier this afternoon, in dealing with the case of Smith v Ward, were the provisions in section 250 concerning impounding and actions for trespass. Might I make a point in relation to that provision, that what is prohibited, or prevented, by section 250(1) is impounding, in (a):

any stock trespassing on the holding or land –

and in (b), bringing:

an action for trespass committed by stock –

In other words, that section is not in terms dealing with the right to remove people who are in unlawful occupation. That aspect of the matter is dealt with in sections 254 and 255, and in dealing with those sections I want to take your Honours if I may to the regulations under the Crown Lands Act, and I have also included that regulation and provisions of the Queensland legislation which was considered in Wik, namely sections 203 and 204, by way of comparison. But before I come to the regulation, I refer to section 254:

Any person - unless lawfully claiming under any subsisting lease or license . . . who shall be found occupying or using any Crown land -

et cetera, in certain ways -

shall be liable on conviction to a penalty -

and then in section 255:

On information in writing preferred in that behalf by any person duly authorized to any justice of the peace setting forth that any person is in the unlawful occupation or use of any Crown land, or in the occupation or use of any Crown land in virtue or under colour of any purchase lease or license . . . such justice -

five lines down -

shall issue his summons for the appearance of the person so informed against -

That, as we would apprehend it, is the only power available to the Crown to get rid of squatters or persons whose leases have expired or been forfeited in the western division.

McHUGH J: That is the only summary proceedings, but the Crown can always proceed by way of a writ of intrusion to get ejectment in terms of Crown land.

MR BASTEN: Can I come back to that aspect of it, your Honour? There was some discussion, I think, in Wik about why one had these provisions in relation to granting the Crown in effect.

McHUGH J: I would imagine because you did not want to be running off to the Supreme Court in Brisbane if you are out in ‑ ‑ ‑

CALLINAN J: Remoteness and expense. Remoteness, expense and inconvenience.

MR BASTEN: There was also some doubt about the Crown’s power, I thought, to bring ejectment. There are several points, if I may, which I want to make about these. The first is that they apply in the western division. I need to make that point good. The second is that they are in terms similar to the provisions which were considered at some length in relation to the 1910 Act in Queensland, sections 203, I think, and 204, which I provided copies of to your Honours. The third point I wanted to make before coming back to the first was just this, that whereas the Queensland Act in section 204 provided that:

A lessee or his manager or a licensee of any land from the Crown –

this is the separate, second paragraph of section 204:

may in like manner make a complaint against any person in unlawful occupation of any part of the land comprised in the lease or license, and the like proceedings shall thereupon be had.

One finds that in Regulation 332 of the Crown Lands Consolidation Regulations, which is the final page of the bundle, I think, makes even less provision in relation to the licensee or lessee, namely:

Whenever land intruded upon within the meaning of sections 254 and 255 of the Act is not under lease or license, the proper officer shall proceed against the trespasser; but the Minister may empower and authorise any lessee or other lawful holder whose holding has been intruded on as aforesaid, to prefer an information or otherwise proceed against the offender.

I note in passing not only that they does not confer a right, but only a power, vested in the Minister to authorise. Secondly, that it deals with lessees and other lawful holders in the same terms, and thirdly that it requires, of course, a consideration of what is an unlawful intrusion on the land.

McHUGH J: One thing you will need to bear in mind is that you could maintain an action for trespass at common law even though you could not maintain an action for ejectment.

MR BASTEN: Ejectment. But only in circumstances – well, yes, and vice versa.

GLEESON CJ: What would be the remedy if the cattle belonging to the neighbour on the adjoining property were encouraged by their owner to go and take some grass from time to time?

MR BASTEN: Your Honour, might I answer that perhaps in the morning by reference to particular provisions, because that actually depends, we would say, on whether certain conditions in relation to fencing have been fulfilled under this legislation. You can only proceed in relation to trespass by stock if you have undertaken the necessary fencing, so there is a very precise statutory scheme which operates even in relation to that ‑ ‑ ‑

GLEESON CJ: Could I ask you to think about this overnight also – I see it is 4.15. Incidentally, the memorials on the copy of the lease that we have had appear to indicate that Timothy John Rees is the registered lessee.

MR BASTEN: Yes.

GLEESON CJ: Mr Wilson must have come in somewhere.

MR BASTEN: I think Mr Jackson suggested this morning – and this was my understanding – that subsequent to the entry of Mr Rees, the computer records were ‑ ‑ ‑

GLEESON CJ: So they were later dealings.

MR BASTEN: They were later dealings.

GLEESON CJ: This is what I would like you to think about. It is possible in 2001 to ask this question: is this a lease that confers on

Douglas Wilson a right of exclusive possession over land within the meaning of section 23B of the Native Title Act? It was possible in 1951 to ask the question: is this a lease that confers on Ross Patrick Smith a right of exclusive possession over land? My question to you is this: what, if any, difference is there between those two questions and what, if any, difference is there between the answers to those questions?

MR BASTEN: If your Honour pleases.

GLEESON CJ: We will adjourn until 10.15.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 SEPTEMBER 2001