Wilson v Anderson & Ors

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.

GLEESON CJ: Mr Jackson, could I ask you, apart from the present context, forgetting native title altogether, what is the most obvious example of a context in which the question whether this was a grant of exclusive possession might arise?

MR JACKSON: It might arise, your Honour, if some person sought to go upon the land – if I could just illustrate the facts. Assume that in the context of grazing on the land that there was an area that we did not wish to use for a year, for example, to let the grass grow, and in relation to that some person said, “Well, I want to come on the land and have a picnic there or to do whatever I like upon the land. I am not going to affect the grass. We will sit on rocks” and so on. In relation to that, if we did not have exclusive possession but only had possession that was limited for some purpose, then we might have difficulty in trying to remove that person from there. That is one circumstance.

Other circumstances which could arise would be if there were statutes which imposed a tax on leases but not on other things or exempted leases but not other things. There are a lot of situations in which the issue could arise. So, your Honours, the issue could arise in a number of contexts.

GAUDRON J: That really does take you to the provisions of the Crown Lands Act with respect to actions or unlawful occupation and use, does it not, because there is nothing in the Western Lands Act about it, is there?

MR JACKSON: No, and the issue was determined by the Full Court in New South Wales 81 years ago – will give your Honours a reference in just a moment – in which it was said that those provisions of the Crown Lands Act did not apply to the Western Lands Act and so that the only ‑ ‑ ‑

GAUDRON J: That does not seem to me to be a very convincing conclusion if land, the subject of a perpetual lease or a lease in perpetuity, remains at all times Crown lands, which seems to be the case.

MR JACKSON: Well, your Honour, accepting that that is so, if one is speaking about the position of a lessee and a person having the rights of lessee under the Act is a person entitled to remove by the ordinary processes or have removed by ordinary processes persons who are trespassers, whether it be a lease from the Crown or a lease from anybody else. There is no reason why the Crown lessee would not have the ordinary rights. There is no need for a special conferral.

GAUDRON J: Well that assumes, in a sense, that there is the conferral of a right of exclusive possession, which is the very question to be answered, and I would have thought one of the matters that would have been relevant to answer in that question is the fact that it remains Crown land and there are special provisions in the Crown Lands Act with respect to unlawful occupation and possession, leaving unlawful to be ascertained, I suppose, by the fact that the Crown Lands Act would be construed by reference to the considerations in Mabo. That is to say, it did not intend to exclude native title holders from their own land.

MR JACKSON: Well, your Honour, inevitably one has to have a starting point and I suppose the question of where one starts, in a sense, but ‑ ‑ ‑

GAUDRON J: I just thought it had to be the Crown Lands Act.

MR JACKSON: Your Honour I will come to that in a moment if I may but, in our submission, there is no special reason why one has to start at the Crown Lands Act; one should, prima facie, in our submission, start with the Western Lands Act and see what it says.

Your Honours could I deal with a number of matters, and I will endeavour to do so relatively briefly, which are dealt with in our written submissions and they deal with comparisons between the legislation and the legislation in contest in Wik. May I take your Honours to our written submissions. I do not intend to deal with these at great length, but there are a number of points that I would seek to make about them. We have endeavoured to put what is in there in a very short form on two pages, which give the references to the several paragraphs and it may be a help if your Honours want to have it, in effect, an index to them, and perhaps I will give those to the Court.

GLEESON CJ: Thank you.

MR JACKSON: Your Honours, the first point I would seek to make is simply this, that in the Wik decision a feature which, to a degree, played a part in the view of the majority, was that the leases or the provision for the leases was contained in a separate part of the Act, they were a separate particular type of statutory interest. Your Honours, the position here, of course, is that if one goes to the terms of the Act and, in particular, to the terms of section 23 and 24, one sees that no distinction is drawn between the various types of lease, which may be granted, and the actual usage of the land may be intense or light. If I could take your Honours to paragraph 29 of our written submissions. In Wik the legislation appears to have been thought, in some respects, to have blurred the distinction between leases and licences. Your Honours, that is not so in the particular case; the Western Lands Act speaks of rent in relation to leases. Your Honours will see the reference to sections 19 to 21 and it speaks of licence fees in relation to licences.

Your Honours, the next point to which I would advert is set out in paragraph 31 in relation to summary remedies. The position is that the provision which is the most equivalent to the provision relied upon in the Wik Case is section 255 of the Crown Lands Consolidation Act. In Smith v Ward (1920) 20 SR (NSW) 299, that was held not to apply to lands under the Western Lands Act. Your Honours will see at page 303, if one goes to the paragraph commencing at about point 3 on the page:

If the defendant’s contention is right, the operation of that section, which is now s 250, sub-s 3 of the Act of 1913, has been revived so far as lands in the Western Division are concerned.

That is a reference back to the preceding paragraph, where it said the effect of:

The operation of the Western Lands Act of 1901 was to repeal, so far as the Western Division was concerned, s 109 of the Act of 1884.

Your Honours will see throughout the last paragraph of the reasons of Justice Pring a reference to the fact that – the last five or six lines:

the manifest intention of the Act was, so far as that section is concerned, to leave the holders of lands within the Western District in precisely the same position as they were before the consolidating Act of 1913.

And Justice Ferguson’s reasons were to the same effect.

GAUDRON J: But by no means free from doubt.

MR JACKSON: Quite, your Honour. It may be, if one looked at the matter entirely afresh, then one would say that ‑ ‑ ‑

GLEESON CJ: On page 304, about a third of the way down the page, Mr Justice Ferguson says he thinks:

the intention of the Legislature was to withdraw the land from the operation of the Crown Lands Acts, not only while it is vacant, but also so long as it remains under the provisions of the Western Lands Act.

What is the land referred to in that sentence?

MR JACKSON: Well, the land under the Western Lands Act, I think his Honour is referring to. The land that is the subject of the lease.

GAUDRON J: That is, land that is notified as available for a lease, is it? Because it is only Crown land that can be notified as available for lease, is it not?

MR JACKSON: Your Honour, that is the only land that can be the subject of a lease. Once that happens, of course, the lease is then granted under the Western Lands Act. I think what was being spoken of, in the particular passage to which your Honour the Chief Justice referred, was land that had been the subject of a lease. But may I check that, your Honour?

HAYNE J: Am I right in understanding this case though as turning in part upon the effect given to a consolidating statute?

MR JACKSON: Yes, your Honour.

HAYNE J: In particular as not affecting what in argument at 301 at about point 3 was said to be the conclusion under the earlier legislation that an action of trespass could be maintained under the provisions of the Western Land Act of 1901.

MR JACKSON: Yes. Your Honour will see, I think, the provision of the 1901 Act, set out at page 300 in the second new paragraph on the page, which repealed the Crown Lands Act:

and all Acts amending the same-

except where exempted –

so far as they relate to pastoral . . . leases . . . and occupation licenses . . . except where exempted from such repeal under the provisions of the Act –

so that was really the starting point. The effect of the argument was whether the consolidating provision had brought in the provision that otherwise would have been taken out by that.

GAUDRON J: This was a travelling stock route. Was there special legislation about that? It seems there was a distinct repeal of section 70 in so far as it prohibited “actions for trespass upon stock routes”. That seems to be the position at page 300. This was for trespass on its stock route, was it not?

MR JACKSON: Yes. Your Honour will see in the second paragraph on page 299 that:

he had brought them back on to the lease after they had all left it, which was the trespass complained of.

GAUDRON J: One would assume there is specific provision in some legislation dealing with travelling stock routes that says you can only go on once, or something of that nature.

MR JACKSON: The answer is yes, your Honour. Could I give your Honour a reference to that specifically a little later. In our written submissions in paragraph 34 we refer to the provisions of the lease and of the schedule to the provisions of the Act, the schedule to the Act and the lease which deal with forfeiture. Your Honours will see the provisions of the Act are section 17C. That provision is at page 69 and your Honours will see – could I just indicate what I am dealing with is the provisions of the Act, the schedule and the particular lease which deal with the topic of forfeiture. Section 17C(4) is speaking specifically about leases, the term of which has been extended, but your Honours will see that in 17C(4)(e), which is on page 70, that the lease is “liable to be forfeited”, and your Honours will see the circumstances of forfeiture there set out.

Section 18, your Honours, which is at page 84, refers in the first paragraph in the last four or five lines to the lease containing:

a provision to the satisfaction of the Minister for the destruction of rabbits -

et cetera, and liability “to forfeiture”. Then further up that, halfway through the paragraph, each lease is to:

contain the covenants, reservations, and exemptions set out in Schedule A -

When one goes to Schedule A, which your Honours will find at the conclusion of the Act and in particular, your Honours, at page 120, it sets out the “Covenants, reservations, and exceptions referred to in section eighteen”, and your Honours will see a provision in paragraph (o) at page 121 for there to be cancellation of the lease if the rent is “in arrears for more than six months” or “a breach of non‑performance of any of the lessee’s covenants or conditions”.

GAUDRON J: What is (l)?

MR JACKSON: It gives a right, as your Honour will see, to “proclaim travelling stock, camping or other reserves”.

GAUDRON J: Yes, but “unrestricted right to” withdrawing land, and that seems to hark back to 17C(4)(a). So, although there is a lease of land, the boundaries of which are subject to survey adjustments - that seems to come from the notification provisions - at any stage the Minister can withdraw land.

MR JACKSON: Well, your Honour, the lease that is being spoken of there in 17C(4) is a lease so extended. That takes one back to 17C(1) in the first place, and your Honour will see in (1)(a):

The term of any lease (other than a lease extended to a lease in perpetuity, or a lease granted under the provisions of section 28A or section 28B -

within a particular area as:

described in Schedule F . . . shall . . . be extended for a period of twenty years.

Then, (b), land outside the Schedule F area can be extended for twenty‑five years. Those are the two types of lease to which that provision refers.

GAUDRON J: It is a funny sort of lease, is it not, that can have land withdrawn from it?

MR JACKSON: Not in relation to Crown leases really.

GAUDRON J: Well, exactly, not in relation to statutory leases. But am I right in thinking that where a lease is extended into a lease in perpetuity, the Minister, providing he has a recommendation from the Commissioner, can withdraw any land from the lease?

MR JACKSON: Your Honour, not under section 17C.

GAUDRON J: Well, what is (4)(a) doing? I think there is a typographical error there.

MR JACKSON: A missing word, I think, “from the land held under lease”, I think it should be, your Honour, in (4)(a).

GAUDRON J: Yes.

MR JACKSON: I will have that checked, but I think that is what it is, yes.

GAUDRON J: I am assuming then that where there is an extension, any land can be withdrawn.

MR JACKSON: Well, that is an extension for a further period of 20 years or 25 years under 17C.

GAUDRON J: Yes. Under an ordinary grant of a lease in perpetuity land can be withdrawn for “roads, travelling stock, camping or any other reserve”?

MR JACKSON: Yes, that is so. That is the condition that is imposed, yes. Your Honour will see that section 24(5) appears to allow the Minister to subject a lease:

to such conditions, reservations and restrictions as to the Minister may seem necessary in the public interest ‑ ‑ ‑

GUMMOW J: Where is that provision, Mr Jackson?

MR JACKSON: Your Honour, it is the second few lines of section 24(5) at page 100. There may be a question in relation to that provision of whether the last few lines relate back to the first few, and that is to the land that has been granted to a certain depth, but, in any event, under section 18 at page 84 your Honours will see on the eighth line:

every new lease shall contain the covenants, reservations, and exemptions set out in Schedule A hereto, or such of the same as the Minister may deem applicable, and shall be subject to any modifications or additions contained in the notification rendering the lands available for lease . . . as may be determined by the Minister in the case of extended leases or those granted in lieu of leases –

Those seem to be the closest provisions that enable the setting of conditions, but no doubt the provision to which your Honour Justice Gaudron was referring is one contained in the schedule which is in the statute itself. But the fact that land may be withdrawn for a particular purpose or the area of the lease reduced does not have the necessary consequence, in our submission, that while the land is not withdrawn from it the rights are not those of a lessee.

GAUDRON J: I am just wondering whether it creates an interest in land as distinct from something else. In the face of that condition I am just wondering whether we are even more remote from what is comprehended by a lease than your arguments would suggest.

MR JACKSON: Well, your Honour, I would not, with respect, accept the “even more”. I mean, what one has is a situation where, in our submission, if one is to add emphatics to the description you have a situation where this is not only a lease but more, more in terms of time, because it gives a lease, it speaks in terms of lease – I will not go over that, your Honours – and one sees it gives it for a longer period.

Now, I was going to refer to our written submissions in paragraph 35 which deals with the question of reservations and the point we would simply seek to make, we would submit, is that if one looks at the various reservations in the lease which are referred to in paragraph 35.2 of the submissions, they do not have the same ambit as those referred to in the lease in question in the Wik Case. Your Honours will see, in particular, the ambit of the provision which is extracted at the top of page 17 of those submissions which was the provision in the Wik Case.

Your Honours, as to the provision in relation to reserves, roads and tracks, which is referred to in paragraph 36 of our written submissions and following, what we submit is that there is nothing inconsistent with the nature of a lease in requiring that other persons be allowed to use tracks or roads or reserves. Your Honours, in particular we would also seek to say, if one goes over to paragraph 47 of our submissions at page 20, it is the case that with freehold titles, as well as with any other form of title, there are often very extensive reservations of rights of entry for official or other purposes. We would also note in passing that land in many places is only capable of being used for particular purposes no matter what the title to it may be, because of such things as town planning legislation and legislation of that kind. In the end, in our submission, one cannot really derive a great deal from the reservations.

So far as the provisions about transfer and mortgage are concerned, could we refer to paragraphs 39 and following of our submissions at page 18, the Western Lands Act - and could we refer your Honours to page 81. If one goes to section 18G(1) at page 91, what your Honours will see is that the land cannot be transferred, conveyed, assigned or mortgaged or otherwise dealt with, without the consent of the Minister first being obtained. The way in which the provision is framed, in our submission, rather suggests that the interest is one which is otherwise capable of being dealt with in the ways appropriate to a lease, subject of course to consent.

Your Honours, the last thing I would wish to say in this regard concerns the size and location of the lease. It is a matter to which we refer in paragraphs 42 and following, to the extent that the size of the land may be a relevant matter, to the extent that its location may be a relevant matter. It is difficult, in our submission, to regard the area as being vast or huge and it is not land which could be regarded as being, at the time of the grant, in any way remote. It is not, of course, the city, but at the same time it is hardly land that has been unknown but it has, in fact, been in use for many years.

Your Honours, our written submissions go to the other half of the coin, as it were, in the remaining provisions of it. We set out in paragraphs 48 and following a number of provisions which support the contention that the lease was a lease with common law incidents. I have dealt with a number of these aspects in passing already, and may I deal with them very briefly. The first, if I could take your Honours to paragraph 48.2 on page 22.

We have referred to section 28A, which your Honours will see set out at page 102. Under section 28A, the Minister can grant leases of:

Crown lands or lands held under occupation license or annual lease, or lands under any lake, river, creek –

et cetera –

or lands resumed –

et cetera –

for any purpose declared by the Minister, by notification in the Gazette, to be a special purpose within this section.

Now, your Honours, that speaks of, in the next paragraph, “annual rental” and so on and one sees, in our submission, that it is a lease to which section 18 of the Act, to which I have taken your Honours already, would apply and, in our submission, or we would make the submission we have in paragraph 48.5, that section 18, section 28A, section 23, all speak of leases and there is no basis, in our submission, for arriving at the view, in the case of this Act, that the leases are not something within the broad juristic contemplation of that notion.

If I could go then to paragraph 48.7 of our submissions on page 23, your Honours will see a reference there to section 18A of the Act at page 85 and to section 18A, so that:

All leases . . . shall be subject to a condition that the boundaries of the lands leased shall be fenced within such period and with such class of fencing as may be determined by, the Commissioner, not being a rabbit-proof fence.

There is provision for allowing some exemptions from that and your Honours will also see that section 18D(iv), and I am referring to the paragraph at the top of page 24 of our submissions, which is at the top of page 86, also provided for circumstances where the Minister might require there be fencing or some other means, if possible, to:

prevent the use by stock of any part of the land for such periods as the Minister considers necessary to permit natural reseeding and regeneration of vegetation; and, for this purpose, the lessee shall erect within the time appointed by the Minister such fencing as the Minister may consider necessary.

Your Honours, the point we would seek to make is that in paragraph (ii) on page 24 of our submissions that an obligation to fence is “capable of giving some support”, to use your Honour Justice Gaudron’s words in Wik, of the notion that the right is one involving exclusive possession. We would seek to say, your Honours, as we say in paragraph (iii), that the legislation in Wik did not have obligations as significant as those in the present enactment.

Your Honours, we seek to make on page 25 the point that exemptions from the fencing obligation or the fact that they can be given in particular cases or particular parts of the boundary is not inconsistent with the existence of a right to exclusive possession.

Your Honours, if I could move then to paragraph 53 of our written submissions, section 18F of the Act imposes a general requirement to reside for five years on land the subject of any lease granted under the Act, and we refer to the fact that in Wik, your Honour Justice Gaudron noted that some improvements might suggest a right of exclusive possession. In our submission, the obligation to reside on the lease for a period of five years suggest that the lease was to be one conveying the right to exclusive possession. Could we refer also to the matters to which we refer in paragraphs 54 through to 57.

GLEESON CJ: Mr Jackson, I asked you a little earlier what kind of context might require an answer to the question whether this was a grant of exclusive possession, apart from the present context. Would that question arise in a context of deciding whether your clients had a right to maintain an action in ejectment against a squatter?

MR JACKSON: Yes, your Honour, I think the answer is yes.

GLEESON CJ: So in other words, if somebody came on and just squatted on part of this land, and the interested parties went along to a solicitor and said, “We want to commence an action in ejectment”, the solicitor would have to decide who is the proper plaintiff. Who would be the competing possibilities?

MR JACKSON: In our submission, there is not really a competition. We would be the person who would be the plaintiff in the matter. The only other possibility would appear to be the Crown.

GLEESON CJ: If you did not have a right of exclusive possession, would you be a proper plaintiff in an action for ejectment?

MR JACKSON: Your Honour, perhaps not in an action for ejectment, but the course that might be taken would be to start proceedings in which we sought an order effectively of the nature of ejectment but at the same time perhaps joining the Crown as a party to the proceedings. If it be that we did not have the title to bring the action on our own, then we would have to have the Crown as a party.

GUMMOW J: But there is difficulty about the Crown in an ejectment, is there not? Special procedures, are there not? Or used to be.

MR JACKSON: Yes, your Honour, certainly, there have been, but – I was speaking, really, generically, in a sense. And there have been, I think, the information in Chancery, and another form of relief which just eludes me for the moment.

GLEESON CJ: If you did not have the right to exclusive possession and a squatter came onto the land, would it mean that in order to get the squatter off the land you would apply to the Crown to direct the squatter to get off the land?

MR JACKSON: We would have to, your Honour, and apart from curial proceedings by ourselves, that is all we could do.

GLEESON CJ: So these are all just different ways of asking the one question, namely, who can kick the squatter off.

MR JACKSON: Yes, your Honour, yes. Your Honours, it is an issue that can arise in a number of ways, of course. People commonly are given, say by the persons who hold – I use the term neutrally – land in the country permission to come on land for various purposes, perhaps to stay or come occasionally, do this, do that, do some work, perhaps; but if a question arises about whether a particular entry upon the land and remaining on the land is something that is permitted or not and there is an issue about that, it has to be resolved in some way in the end.

GLEESON CJ: Presumably, the significance of a right of exclusive possession in the present context is that if it exists it means you can exclude everybody else from the land and that would include native title holders; but it also means, the converse of it is, that anybody who wants to come onto the land requires your permission, not the permission of the Crown.

MR JACKSON: Yes, that is so, your Honour, yes. But can I say, your Honour, that exclusive possession one tends to think of only in terms of exclusion and permission and exclusion. But it also, your Honour, carries with it the exclusive right to decide how land is to be used. What I mean by that is that if one took, for example, a lease that was a lease for the purpose of agriculture, now it may well be that in carrying out particular forms of agriculture the determination is that this part of the land will be used for three years, then it will not be used for a year after that and so on. Exactly the same situation may obtain in relation to grazing because, as your Honours will have seen, the Minister can say, “You have overused this, in effect, do not use this part of the land for some time”. But the point I am seeking to make about it, your Honour, is that subject to matters of that kind, the position which obtains is that having exclusive possession allows one to determine, without reference to other people, how land will be used and, indeed, whether a particular part of it will be used at all.

GAUDRON J: Mr Jackson, is my recollection incorrect that one can maintain an action for trespass if one is in possession – forget about the right to exclusive possession or the like, was not the law of trespass predicated on actual possession and is that not the foundation of notions of possessory title?

MR JACKSON: Yes, it was, your Honour.

GLEESON CJ: Distinguishing between possession and occupation. What was in question was a right of possession as distinct from a right of occupation.

MR JACKSON: Well, your Honour, that is so, but it is right to say, no doubt, that a person in actual possession might prevent a person not in actual possession who had no greater right from coming onto a property, but that person had to be in possession. But one is not really talking about possession in that relative sense, what one is talking about is a right which it may come from statute, but it loses nothing for having that - it is a right to have possession of the land and it is a right, your Honours – what I am seeking to say, your Honours, is this, our learned friends’ submissions speak of the exclusive possession being somehow diminished because of the fact that in some circumstances one is speaking about relative possession but one really is not speaking about relative possession in this sense, what one is talking about is an undoubted statutory right given pursuant to statute and that right is one, your Honours, which can be relied upon. All one would have to do in a case of this kind would be, in a sense, to produce the lease and say, “I am the lessee”.

GLEESON CJ: What do you understand to be the difference between a right of possession and a right of occupation?

MR JACKSON: Well, your Honour, if one is contrasting the two – and very often one would be encompassed by the other. If one is speaking about a right of occupation, and no more ‑ ‑ ‑

GLEESON CJ: Probably I should have said “occupancy”.

MR JACKSON: Yes. Well, your Honour, it really is something that depends upon the context. Could I say, if one is talking about, for example, a room in a hotel, then the person who has the room in the hotel has a right to occupy the room for the time the person is there. On the other hand, the person does not have possession of it; the hotel has possession of it. Your Honour, one can have rights of occupancy for various limited purposes. One can have caretakers having rights of occupancy and, no doubt, statute can create rights that do not give rights of possession.

When one comes to possession, it involves a number of things. One is the ability to decide who will be upon the land, who, apart from oneself, will be upon the land. It involves the terms upon which they will be there. It involves also the right to determine how the land will be used within statutory confines. Those, I suppose, in a sense, are the essential elements of it.

GUMMOW J: Now, in this Western Lands lease is there any covenant by the – we have to call it the lessor – of quiet possession in favour of the lessee? Is that ‑ ‑ ‑

MR JACKSON: Not specifically, your Honour.

GUMMOW J: When one is talking about exclusive possession in landlord and tenant, in a practical sense you are talking about the relation between those two parties, namely the right to exclude the landlord and not just third parties who stray into the picture.

MR JACKSON: Your Honour, could I just say in relation to that that the landlord has, as it were, some rights in relation to it but they are limited and we set them out in our written submissions. Your Honour will see the most ample one, I suppose, is page 121, paragraph (m) – this is in Schedule A:

The unrestricted right for the Minister, the Commissioner, or any persons duly authorised in that behalf to enter upon and examine such land and the improvements thereon.

Then paragraph (i) on the preceding page:

To permit the Commissioner and all persons authorised by the Minister or the Commissioners to enter and view the whole or any part of the lease or buildings or other improvements thereon.

But, there is not, in a sense – that is in the sense of conferring rights but your Honour will see that the rights conferred – it does not suggest anywhere that there can be an interference with the possession. It is one thing to be able to inspect and it is another thing to be able to ‑ ‑ ‑

GUMMOW J: Are there any authorities in New South Wales dealing with the question, for example, whether the covenant for quiet enjoyment under the Conveyancing Act applies to these transactions?

MR JACKSON: May I check that and give your Honour an answer to that?

GUMMOW J: That covenant implied by the Conveyancing Act itself only reflects the general law, I think.

GLEESON CJ: According to Megarry and Wade, the relationship of landlord and tenant automatically implies a covenant for quiet enjoyment.

MR JACKSON: Your Honour, I was going to say, I think it was O’Keefe v Malone in which it was held that a covenant for quiet enjoyment was implied even in the occupation licence.

GLEESON CJ: We had better look at that. It is Megarry and Wade, 6th edition, page 860.

MR JACKSON: Your Honours will see in volume 9 at about page 1841, in 1932 section 18E of the Act was inserted by the 1932 Amendment Act. Section 18E is a provision that allowed for leases in perpetuity in the first place, and it is a provision I took your Honours to earlier, the one allowing extensions of leases to leases in perpetuity.

Your Honours will see at page 1841, in the left column, a Mr Buttenshaw, he asked for leave:

to bring in a bill to provide that the title conferred by certain leases shall be a lease in perpetuity –

Your Honours will see the remainder of that paragraph. Then in the right column about halfway down the page he is speaking again and he said – it is the third line after his name:

The bill . . . deals only with those lessees whose holdings do not exceed a home maintenance area. Many of them find that it is quite impossible to secure financial assistance to tide them over the present depression unless we can give them a better security than they have to‑day.

Then at page 1842 in the right column, the first new paragraph in the right column, Mr Buttenshaw again, said – this is the fourth line:

We propose to give settlers a lease in perpetuity and the Crown will not be justified in doing that unless there is included in the measure a clause to conserve its rights in the event of considerable improvements being effected during the currency of a lease.

Then four lines further down:

Unless the financial institutions are satisfied that a lessee will get a longer lease, they are not prepared to lend him the money he so urgently requires. But if those who do not hold more than a home maintenance area are given a lease in perpetuity, the financial institutions will be prepared to lend money upon –

it, and it goes down for about another six or seven lines. Your Honours, in 1934, section 23 itself was amended to allow the grant of leases in perpetuity and there is some further discussion of that in the same volume at page 1848. At the bottom, in the right column, Mr Buttenshaw, still the Minister for Lands, in about the last 12 lines or so, said:

When I introduced, in 1932, an amending bill –

and your Honours will see there that they are referred to. The issue is discussed throughout the next page 1849 and at page 1850 to about two‑thirds of the way down the left column, broadly speaking. If I could go then to the questions that were involved in the case.

GLEESON CJ: Were you going to take us to the lease?

MR JACKSON: I am sorry, your Honour. Your Honours will see, if I can just go to the first page of the lease, that in the opening parts of it there is a reference to the War Service Land Settlement Act. Your Honours will see:

for the purpose of grazing . . . under the provisions of the –

Western Lands Act as amended by subsequent Acts. Your Honours will see a reference to the application having been made on 16 March 1953. Your Honours will see then the reference to the grant of the lease:

in perpetuity at the rent and upon and subject to the exceptions reservations conditions –

et cetera. Then your Honours will see, going further down the page, the grant is of the land there identified, and then when the writing becomes a little smaller:

TOGETHER WITH ALL rights easements and appurtenances to the same belonging EXCEPTING AND RESERVING –

and then the minerals are reserved:

metals gems precious stones coal and mineral oils –

and the authority to search for all those things –

AND FURTHER RESERVING . . . 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 –

that reflects the provision to which Justice Gaudron was referring to before.

And, your Honours, a further reservation “for mining purposes”, for land for mining purposes, “townships or any public purpose”. Then your Honours will see after that:

TO HOLD the said land unto the Lessee –

GLEESON CJ: That is the language of demise, is it?

MR JACKSON: Yes, your Honour, “WE DO HEREBY grant” –

your Honour will see halfway down the page -

TO HOLD the said land unto the Lessee as a Western Lands lease . . . in perpetuity, subject to the provisions of the said Acts and the Regulations -

then you will see:

YIELDING AND PAYING . . . the yearly rent -

is there specified. The proviso at the bottom the page in relation to adjustment of the rent because of change in area on survey. Your Honours will see in the second line on the second page:

hereby declared that all conditions and . . . and any Regulations –

are, to put it shortly, to apply. Your Honours will see in the fifth line on that page it refers to:

the lease hereby expressed to be granted –

and then, the various conditions, et cetera follow. Your Honours will see the first is a reference to rent to be paid in advance. It is referred to as:

rent hereby reserved –

Clause 2 is the residence commission. Clause 3 is to:

hold and use the said land bona fide for his own exclusive benefit and shall graze own stock upon the land –

Clause 4:

not to use or permit to be used the said land for any purpose other than grazing and the Lessee shall improve and develop the said land for grazing to the satisfaction of the Minister.

I referred earlier to the fact that possession, in the ordinary course of events, also involves the ability to choose, subject to any overriding condition, how the land will be best used from time to time. One the things that the lessee has to do is to improve and develop the land.

Your Honours will see a provision in clause 5 for enclosing the land within a year “with a substantial stock-proof fence”. Clause 6, survey fees and interest to be paid. Clause 7, take the steps “to destroy rabbits dogs foxes and other vermin and such weeds” et cetera as may be noxious, and to keep the land free ‑ ‑ ‑

KIRBY J: It is focused on stock, though, is it not, “stock-proof”? It is not human-proof fence.

MR JACKSON: No, of course not, your Honour.

GLEESON CJ: I am not sure what kind of a fence would be human‑proof.

KIRBY J: Quite.

MR JACKSON: Your Honours, there are fences of various kinds, no doubt, including with dingo fences, that sometimes – who are we keeping out and who are we keeping in? Your Honour, I accept entirely the fence is a fence appropriate for the area dealing with stock, and does not have to be rabbit‑proof, which would be, no doubt, more expensive.

If one goes then to clause 8, timber has to be kept on the land sufficient for shade and firebreaks. Clause 9 – and no doubt this is a general provision – one sees “not interfere with timber upon any State Forest, Forest Reserve” and so on, without permission of the Commissioner. Under clause 10, not to have a property right in the timber on the land – one will see something specifically excluded:

shall not ringbark cut or otherwise destroy or permit the destruction of timber or scrub without the written consent of the Commissioner.

Clause 11, not to:

obstruct or interfere with any reserves roads or tracks or the lawful use thereof by any person.

Clause 12, to “keep” and “repair” any “improvements on the said land”, and there were some improvements on the land. Your Honours will have seen the reference to a “board drain” and also I think there was a well or boards referred to in the notice to which I took your Honours earlier. Your Honours will see then clause 13, there have to be “returns”, setting out the matters there referred to. Then your Honours will see in clause 14 there is a provision which reflects the provision of the Act about requiring consent for transfers and so on.

There is a provision against overstocking in clause 15. Clause 16 requires that we “permit any person, duly authorised” to search for minerals, to put it shortly, minerals, et cetera. Your Honours will see the reference to “duly authorised” and the various permits that might be obtained under the State enactment dealing with mining at the time would be the reference to the authority. Your Honours will see clause 17. We are required:

if the Minister so directs, prevent the use by stock of any part of the said land . . . to permit the natural reseeding and regeneration –

and to erect fencing to that end. Clause 18, we have to protect the land “from bush fire” or take “necessary steps”. Clause 19, we have to:

use iron or steel posts . . . for the erection or repair of all fencing on the land –

Clause 20 is a provision which reflects the War Service Land Settlement Act. It is not transferable until 10 years “except to a member of the forces”, et cetera. Clause 21, we:

shall not grant any grazing rights . . . or graze stock thereon under any stock partnership or agist stock –

without “written consent”. Clause 22, we have to “permit the Minister for Conservation ‑ ‑ ‑

GLEESON CJ: Why would your permission be necessary?

MR JACKSON: I am sorry, your Honour, in relation to?

GLEESON CJ: In clause 22 you agree to permit somebody to do something. Why would that person require your permission?

MR JACKSON: Well, your Honour, because otherwise we would be entitled to exclude them and that being an indicium, in a sense, of our having the right to possession for which we contend. Your Honours, one sees 23A, we:

shall not interfere with any telephone line crossing the land and shall allow reasonable access for –

those things. Your Honours, that again reflects a similar consideration. Clause 23B means that we have to erect “a substantial stock-proof fence” around:

an area of about one hundred and sixty acres surrounding the homestead, and shall keep such area free of stock, except . . . four head of large domestic stock –

Clause 23C, we can:

take and use the water from the bore drain within the lease provided he makes satisfactory arrangements with the owner –

and clause 23D, we are not to:

obstruct or interfere with, or damage, any bore drain –

et cetera. Your Honours will then see in clause 23 in the printed clause the various provisos:

(a) That no transfer or assignment of this Lease or any agreement . . . shall affect any forfeiture incurred or any debt or liability accrued to US OUR HEIRS OR SUCCESSORS under or by virtue of these presents;
(b) That no transfer of this Lease shall be registered or recognised if any rent payment or other dues to the Crown are in arrear;

(c) That no public rights now existing or hereafter to be created in and over any Travelling Stock Route Reserve or Camping Reserve which may be included within the said land shall be affected by the granting of this Lease;
(d) That it shall be lawful for Our Governor . . . to withdraw from this Lease any lands required for mining purposes –

et cetera, and that the lessee is entitled to compensation if that is done.

Your Honours will then see that in clause 24 there is provision for the lease to be forfeited, to put it shortly, if we do not comply with any of its provisions.

GLEESON CJ: Is that a convenient time, Mr Jackson?

MR JACKSON: Yes.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 AM:

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the question your Honour the Chief Justice asked about the Interpretation Act of New South Wales and the use of headings to sections. Your Honour, the answer is a little complicated, I am afraid, because the pristine simplicity in the past, when they could not be referred to, has gone. The position is this, that, first of all, under section 35(2) a “heading to a provision of an Act” is not to be taken as part of the Act or instrument. That is subject to qualifications set out in subsections (3) and (4), neither of which is relevant for present purposes.

One comes then, however, to the preceding section, section 34. Section 34(2)(b) says that in taking into account extrinsic material which by virtue of subsection (1) may be taken into account in various circumstances:

the material that may be considered in the interpretation of a provision of an Act . . . includes:
(a) all matters not forming part of the Act –

which would be the operation of section 35 –

that are set out in the document containing the text of the Act as printed by the Government Printer –

So the answer is, your Honour, that in the interpretation of a provision of an Act, if material not forming part of the Act is capable of assisting the ascertainment of the meaning of that provision, consideration may be given to it to confirm the meaning of the provision, to confirm that the meaning is the primary meaning or to determine the meaning if its ambiguous or obscure or if the ordinary meaning leads to a result that is manifestly absurd or unreasonable.

Your Honours, going from that to section 20 of the Native Title (New South Wales) Act, one of the purposes of the provision is also - I should have mentioned this this morning - to settle a question left, in a sense, by Mabo [No 2], in particular by Justice Toohey in that, namely whether the consequence was extinguishment or suspension. Extinguishment is provided for by section 20 and the cognate provision of the Commonwealth Act, an extinguishment is defined by section 237A of the Commonwealth Act to mean extinguishment in the fullest sense of the term.

Your Honours, that takes me then to, if I could go back to Smith v Ward (1920), 20 SR(NSW) 299, and I wanted to go to the provisions that are referred to in it. May I go first to the intersection of the several provisions before coming to the terms of the case itself. Your Honours will see that the case concerned section 250(3) of the Crown Lands Consolidation Act. It provided a particular a defence, to put it loosely, to action for trespass in certain circumstances. It was one of a number of provisions of the Crown Lands Consolidation Act which dealt with legal matters. If I could take your Honours to that Act, it is in volume 7, commencing relevantly at page 1470.

Your Honours will see the heading “Division 10, Legal Provisions - Evidence - Procedure” and then sections 234 to 255. Now, your Honours, if I could just go, for a moment, to the two provisions of that part of the Act which do refer to actions for trespass – and one of them is section 250 – what is apparent, in our submission, is that it was the legislators – the Parliament believed that the fact that one had a lease of Crown land gave rise to a right to sue in trespass. Your Honours will see that, first of all, from section 243 of the Act at page 1475, which dealt with the situation where the instrument of lease had not yet been issued.

The way in which it dealt with it was to say, in effect, that by proving the agreement one was put in the position of a lessee. Your Honours will see that the opening words of section 243 speak of an:

action or suit brought to recover possession or to recover damages for trespass upon or otherwise in relation to any Crown lands of which no lease from the Crown shall have issued - it shall be lawful for any party thereto to put in evidence any agreement with the Crown or its agents lawfully authorized in that behalf, and such agreement shall, as between the parties . . . have the same effect as if a lease from the Crown of such lands had been duly issued –

Now, your Honours, the context in which that arises is the context of an action brought to recover possession or to recover damages for trespass. When one goes then to section 250, the assumption underlying it is that what one is speaking about is an action for damages for trespass. Could I invite your Honours to note section 250 for the moment – and I will come back to its terms – but what it relates to is section 34 of the same Act, and section 34 of that Act is at page 1313. These are the provisions that were involved in the case in question.

Your Honours will see that section 34 allowed the Minister to set aside:

define and set apart routes not exceeding one mile in width through any land held under lease or license for the passage of stock -

Your Honours will see then the second paragraph of that provision on the next page, that:

The right of the lessee or licensee of any lands within such routes or camping places are situate to impound any travelling stock or to bring any action for trespass in respect thereof shall be subject to the provisions of section two hundred and fifty hereof.

When one goes then to section 250 at page 1478, it says in subsection (1) that:

No person occupying –
any holding within a classified area – or –

various other rights, including:

a homestead lease, special lease, or annual lease –
and no person occupying land in virtue of an application for a conditional purchase or homestead selection or for any lease of a kind hereinbefore referred to or specified, the application for which lease entitles him to go into occupation of the land, shall –

and then (b):

bring an action for trespass committed by stock on the holding or land –
unless the holding or land . . . was at the date of the trespass enclosed with a fence reasonably sufficient –

et cetera. Then the first proviso: that did not apply to a “trespass wilfully caused”. Then section 250(3) on the next page, your Honours will see the provision which was sought to be relied on, that:

The lessee or licensee of any lands . . . shall not be entitled to impound any stock travelling pursuant to the provisions contained in section one hundred and six of the Pastures Protection Act, 1912, or to bring any action for trespass in respect thereof while such stock shall keep within the boundaries of the said routes or camping places.

Now, it is true to say, your Honours, that provision refers both to licences and to leases, but it certainly does work on the assumption that one of the rights of, at least a person who is a lessee, is to bring an action for trespass in respect of the lands.

Now, your Honours, section 250(3) was the provision sought to be relied on in that case, but the difficulty which arose came about from section 2 of the 1901 Western Lands Act, which your Honours will see in volume 1 at page 42. That is in its original form, in the form in which it was at the time of the grant of the lease. It appears at page 57, but, apart from some, I think, missing commas at page 57, it is in relevantly the same form. What it said was that:

The Crown Lands Act of 1884 and all Acts amending the same, in so far as they relate to . . . pastoral . . . leases . . . and vacant lands in the Western Division, are hereby repealed, except where exempted from such repeal under the provisions of this Act –

so that the Crown Lands Act, by virtue of that provision, did not apply to pastoral leases or to vacant land in the Western Division. Now, your Honours, one had then a situation where, in addition to that, the 1913 Act, the Crown Lands Consolidation Act, contained section 4 which your Honours will see in volume 7 at page 1286 and it said:

This Act shall not be construed so as to affect (except where the contrary is expressly provided) the operation of any provision contained in –

and the third one listed is the Western Lands Act of 1901. Now, your Honours, it is in that context that one sees the decision in the Full Court in New South Wales in Smith v Ward (1920) 20 SR (NSW) 299 and when one comes to, for example, the conclusion of Justice Ferguson’s reasons at page 304, and about 12 lines into page 304, his Honour said:

I think the intention of the Legislature was to withdraw the land from the operation of the Crown Lands Act, not only while it is vacant, but also so long as it remains under the provisions of the Western Lands Act. If that is so, then amongst other provisions from which it was exempted was the provision contained in s 109 of the Crown LandsAct of 1884 –

which is the equivalent of section 250 -

that the lessee should not be entitled to maintain any action for trespass in respect of stock travelling upon the travelling stock route. In other words, s 2 of the Western Lands Act operated to restore to the lessees the common law right to maintain such an action. Then came the Crown Lands Consolidation Act of 1913, which reproduces in s 250 the provisions of s 109 of the Act of 1884, but which also provides in s 4 that the Act is not to be construed so as to affect the operation of any provision contained in the Western Lands Act of 1901. Now as by the operation of the Western Lands Act, the plaintiff was relieved form the obligation to allow people to trespass on his land without the right of bringing an action, I think s 4 of the consolidating Act of 1913 prevents the obligation from being again put upon him.

Now, your Honours, two things emerge from that, in our submission. The conclusion that was arrived at was one that was perfectly open to their Honours and is, with respect, the better view of the provisions. The second, your Honours, is that even if it be that the provisions of the Crown Lands Consolidation Act were to apply the position obtaining in relation to them is that they plainly enough contemplate that one of the remedies of a person who is a lessee is themselves to bring an action for trespass.

GUMMOW J: Mr Jackson, before you do that, there is provision now in the New South Wales Real Property Act in Part 3 to I think bring these perpetual interests under the Act and to obtain a certificate of title and so on. That seems to have been introduced in 1980. Can we be sure that the instrument we have here has never been further perfected by reliance on Part 3?

MR JACKSON: Your Honour, I will certainly have that checked again. Can I let your Honours know the result at some point?

GUMMOW J: Yes.

MR JACKSON: My understanding is that it remains as it was. Could I move then to another matter with which I will deal as briefly as I can. That is the question of the historical material to which reference is made in our written submissions. May I endeavour to do so very briefly. I do not intend to take your Honours to all of it. In the end we will accept the question is one ultimately of the effect of the various provisions of the enactment and of the lease in question.

Could we just say – and I will endeavour to summarise what is contained in the significant parts of it - paragraphs 60 to 67 of our written submissions give details in relation to legislation up to and including the 1846 Imperial Wastelands Act of the many provisions that consistently, in our submission, distinguished between a lease for which rent was payable and licences for which fees were payable. If one moves from there to the 1847 and 1849 Orders in Council and related official correspondence, one sees in our written submissions, paragraphs 68 to 71 and 75, the submission that the Orders in Council distinguish between demises and leases on the one hand, and licences on the other, without any indication that the term “lease” was not intended to have its ordinary common law meaning.

Your Honours, in paragraph 76 of our written submissions we submit that the inclusion of the reservation provisions for Aborigines implies that in the absence of those provisions they could have been excluded from the lands.

Your Honours, could I mention paragraphs 72 and 73 of our written submissions concerning, as it were, Earl Grey. In relation to that, what we would submit is that the position, first of all, is that reliance upon some of Earl Grey’s remarks has to be seen in the context, and taken in isolation some of that can be unsafe. But, in any event, the statutory language is, in our submission, clear enough and it is really inappropriate in the end to refer to correspondence to arrive at a different meaning.

KIRBY J: You are a bit critical of Professor Reynolds in subparagraph 74(x). I did not quite understand that point. He apparently omitted something from the letter, but I did not see the significance of the omission.

MR JACKSON: Your Honour, the omission referring in a sense to the leases. Could I move then to the material concerning the Crown Lands Occupation Act 1861. In paragraph 82 of our written submissions, in relation to that, that Act was an Act which authorised:

Crown Lands may be demised by lease for any terms –

varying according to the purposes, which included not only pastoral purposes, but also purposes for:

ferries bridges wharves . . . saw mills –

and so on. The fact that they were all granted pursuant to the one provision, which was section 10 and dealt with together in other sections, makes it unlikely, in our submission, that some juristic nature, other than lease, was contemplated in relation to them. They were all treated as being, in our submission, leases, not something depending on the judicial assessment in a particular case.

In paragraph 84 we refer to the fact that the Act distinguished between leases for rent and licences for fees. We refer your Honours to section 28 of the Act in paragraph 85 and possession and damages for trespass.

In relation to the position from 1861 to 1901, your Honours will see paragraph 87 to 100 of our written submissions contain details of the provisions which distinguish, pretty consistently, between leases and licences. Your Honours will recall that even an occupation licence was held to be not distinguishable from a demise in O’Keefe v Malone [1903] AC 365 at 377. If occupation licences were indistinguishable from demises, then, in our submission, leases must surely have their ordinary meaning and, your Honours, if I could just add a flourish, a fortiori are perpetual leases.

GUMMOW J: There was a debate at one stage whether these professional leases were fee simple.

MR JACKSON: Yes, your Honour, and that was held they were not, of course, in the case - that was, I think, in the second of the cases to which I referred this morning, of Hawkins. Your Honour, they are, I suppose - they are of their own kind, of course, but they do have similarities to a fee simple in terms of duration. They have other similarities but, as the members of the Court said in earlier cases, at the same time they remain something that is not quite a fee simple. Your Honour, in one sense, if one had a lease, say, for 999 years, it is a very long lease but one day it comes to an end, and the other feature of them is that because of the obligation to pay rent in relation to them, they can be forfeited or cancelled.

Now, your Honours, the last two things I seek to say are these. In relation to the Crown Lands Act of - perhaps I can leave that, your Honours. I will just refer your Honours to paragraphs 90.1 and 90.3 of our submissions, and your Honours, in paragraph 103, dealing with the 1901 Royal Commission Report, that referred to the demand for increased security of tenure, longer terms of leases, tenants’ rights to improvements. But there was not any suggestion at all that “lease” had anything but its ordinary meaning and incidents. Your Honours, those are our submissions.

GLEESON CJ: Mr Birch.

MR BASTEN: Your Honour, I think as between the parties, it was agreed that because he is speaking in the same interest, counsel for New South Wales would go next, followed by the Attorney for the Northern Territory and then myself, and Mr Birch would ‑ ‑ ‑

GLEESON CJ: Very well. Mr Hughston.

MR HUGHSTON: If the Court pleases, the second respondent’s interests in these proceedings is somewhat limited. The second respondent submits that the Full Court was wrong in finding that it was unnecessary to answer either question (a) or (b) that was submitted, but the second respondent has no submission to make as to how those questions should have been answered. In other words, the second respondent says that if either the terms of the lease or the terms of the lease and the legislation were sufficient to show that the Western Lands Act lease granted a right of exclusive possession, that was sufficient to extinguish native title, whether at common law or under the Native Title Act, and the questions should have been answered.

But as to whether this particular lease constitutes an instrument which grants exclusive possession, the second respondent does not wish to be heard on that point. But it is important ‑ ‑ ‑

KIRBY J: You want to have an answer - any old answer will do.

MR HUGHSTON: Yes, any old answer would do, your Honour Justice Kirby ‑ ‑ ‑

KIRBY J: It is a very strange position to adopt for the State.

MR HUGHSTON: It is not, your Honour. Your Honour will recall the ‑ ‑ ‑

KIRBY J: One would have though the State would seek to assist the Court to come to the right answer if it decided that the answer should be given.

MR HUGHSTON: Your Honour will be aware that there was a lot of political negotiation and angst involved in the government’s 10 point plan in Wik and the formulation, eventually, of the 1998 amendments. All of the States made a decision as to which of their tenures they believed had definitely granted exclusive possession, and therefore extinguished native title. They included those in Schedule 1 to the Act, so they are scheduled interests. So, New South Wales then ‑ ‑ ‑

GUMMOW J: Paragraph 4 of Schedule 1 is rather carefully worded treatment of section 23 instruments. This instrument, when it talks about grazing, does not seem to fall within the 4.

MR HUGHSTON: No, it does not.

GUMMOW J: Why would you need 4 at all, if Mr Jackson is right? In other words, looking at section 23B(2) of the Native Title Act, your client does not know what the nature of its grant was, which is pretty surprising. Why could it not make up its mind and deal with it in the schedule? Why is there some failure of cognition that leaves it out?

MR HUGHSTON: It did not want to risk itself extinguishing native title and thereby ‑ ‑ ‑

GLEESON CJ: Having to pay compensation.

MR HUGHSTON: Making itself liable to pay compensation.

GUMMOW J: Exactly.

MR HUGHSTON: So it has selected those interests which it considers would have granted exclusive possession, has included those in the schedule and, if you like, is prepared to take the risk ‑ ‑ ‑

GUMMOW J: But the risk here about compensation would not apply to this instrument. It is 1950.

MR HUGHSTON: Yes, that is right, your Honour.

GUMMOW J: It is a State Act.

MR HUGHSTON: It is a State Act.

GUMMOW J: 1950.

MR HUGHSTON: Yes, but if your Honour pleases, it does involve difficult questions of law as to whether this particular lease, under that particular legislation, the Western Lands Act legislation, does grant exclusive possession. That is why Mr Jackson and Mr Basten and the others are here today. It is not an easy point.

HAYNE J: Yet a lease in identical terms for a different purpose, on your submissions, unarguably, did constitute an exclusive agricultural lease.

MR HUGHSTON: Yes, well I think that the government did draw a distinction between agricultural purposes and pastoral purposes based upon what the majority had to say about the limited nature of the use of land involved in pastoral purposes. Agricultural purposes of course, your Honour Justice Hayne, involves a far more intensive and extensive use of the land than does pastoral purposes. So, the government would have had that in mind when it draw that distinction.

HAYNE J: Whether or not relevant.

MR HUGHSTON: Perhaps not, if your Honour pleases. What that leaves is a statutory scheme which says that if native title has been extinguished by an instrument which grants previous exclusive possession, then native title has been extinguished, and there are other provisions in the Act to ensure that the courts deal with that situation promptly so that useless litigation, wasteful litigation, does not proceed in the Federal Court. Perhaps if I could take your Honours straight away to section 61A ‑ ‑ ‑

HAYNE J: Just before you do that, the representative of the grantor makes no submission in this Court about the effect of its grant, is that the position?

MR HUGHSTON: That is the position, if your Honour pleases.

GUMMOW J: That is fairly remarkable, really.

HAYNE J: It is a quite startling proposition, I would have thought, Mr Hughston, that the grantor party to a proceeding chooses to make submissions, but chooses not to make any submission about the nature and effect of the grant which it made.

MR HUGHSTON: Well, at the time when that particular grant was made, if your Honour pleases, there would have been no considerations of native title and whether native title was extinguished.

KIRBY J: That is not an answer to his Honour’s question.

MR HUGHSTON: No, it is not.

KIRBY J: Consideration is now required and it is required by this Court. It seems a remarkable position for the State to adopt, however.

GLEESON CJ: But the observation you just made does lead to an interesting question, does it not? You say that in 1950 nobody would have even thought about whether or not this affected native title.

MR HUGHSTON: Yes.

GLEESON CJ: If this instrument effected a grant of a right of exclusive possession, it seems hardly likely that it effected a grant of a right of possession exclusive of everybody except Aboriginal people.

MR HUGHSTON: Yes, I would agree with that, if your Honour pleases, absolutely. It is perhaps trite law to say that a grant of exclusive possession does not necessarily connote rights good against the whole world, but if you have a grant of exclusive possession at common law, then that is sufficient to extinguish native title either at common law or under the statute and so a right of exclusive possession would exclude Aboriginal people.

GUMMOW J: You keep ignoring section 11 of the Native Title Act. It just fascinates me really.

MR HUGHSTON: I beg your pardon, Justice Gummow?

GUMMOW J: You keep ignoring section 11 of the Native Title Act. That is the starting point. Parliament has legislated on the question. Why do you keep making common law your first stop?

KIRBY J: The Bar loves the common law; the Bar hates statutes. We see it so often.

MR HUGHSTON: Could I take your Honour Justice Gummow to this Court’s decision in Wik?

GUMMOW J: No, because that is before the Native Title Act; it is not about the Native Title Act. That is the whole point and the Bar does not seem to be able to grasp this.

MR HUGHSTON: But, your Honour, it is just a convenient statement that your Honour has made based upon this Court’s decision in Western Australia v The Commonwealth which was after the Native Title Act and which extensively looked at the legislation.

GUMMOW J: And which focused upon section 11.

MR HUGHSTON: Section 11 was in the Act at the time.

GUMMOW J: I know, and in the Western Australian Case it is focused upon. Anyhow, I fear we are wasting time.

MR HUGHSTON: Yes. If your Honour would just allow me to go to the foot of 167. It is a very brief passage, at about point 9 of the page:

If acts done before the commencement on 31 October 1975 of the Racial Discrimination Act 1975 (Cth) were effective to extinguish or impair native title, the Native Title Act does not undo that result. In the joint judgment of six members of this Court in Western Australia v The Commonwealth (the Native Title Act Case), it was said:
“An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act.”

The point I wish to make is that section 11 was in the Native Title Act at that time when the Court decided Western Australia and the Commonwealth and, clearly, it was not considered by six Justices of this Court on that occasion that that somehow worked some change to the law of extinguishment.

HAYNE J: The legislative caravan has moved on. We now have the most elaborate provisions in the Native Title Act dealing with questions of extinguishment but everybody resolutely shuts their eyes to the Act and starts elsewhere.

MR HUGHSTON: Our central position is that the Act is the starting point but we also maintain that there is still a role for the common law, that the Act has not totally replaced the common law of extinguishment. If I could take your Honours to some of the provisions of the Act which seem to indicate that the Act contemplates that extinguishment of native title can have occurred other than under the Act. Perhaps if I could start at section 23B, a section your Honours have been taken to by Mr Jackson. Now, 23B is defining “previous exclusive possession act”. Section 23B(9C) reads:

If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:
(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters –

So, that would seem to indicate that this Act is not a code for extinguishment, that the Act contemplates that there are other circumstances under which native title can be extinguished. If I could then take your Honours to section 23G(1)(b). This is dealing with the:

Confirmation of the partial extinguishment of native title by previous non‑exclusive possession acts of the Commonwealth.

GUMMOW J: This is all telling you about how you get a determination, amongst other things. That is what is wanted here, right?

MR HUGHSTON: Yes.

HAYNE J: In aid of what proposition advocated by those for whom you appear do you make these submissions? If your clients choose to come here advocating no position about extinguishment, what is the submission you are making?

MR HUGHSTON: The submission is that the questions should have been answered because if this lease did confer a right of exclusive ‑ ‑ ‑

GUMMOW J: One reason why one would not answer the question was is that it was not aptly framed, having regard to the nature of the proceeding out of which it grew, namely an application for determination.

MR HUGHSTON: Yes.

GUMMOW J: It was a separate question in an application for a determination. One would expect it to be framed, therefore, in terms of what the Act tells you on this subject, but it is not.

MR HUGHSTON: One might, perhaps, yes, but a policy of perfection would no doubt ‑ ‑ ‑

GUMMOW J: It is not a question of a policy of perfection.

MR HUGHSTON: There was squarely raised before the Full Court statutory extinguishment by previous exclusive possession acts as well as the common law. The applicant before the Full Court ‑ ‑ ‑

GUMMOW J: I want to know why the Bar cannot get its act together to make sure these questions were not stated properly.

MR HUGHSTON: There was some discussion about the form of questions.

GUMMOW J: Talk about wasteful litigation. I cannot imagine a more apt recipe for it.

MR HUGHSTON: Your Honour, the issue of both statutory extinguishment and extinguishment at common law was raised and was squarely put before the Full Court. If I could take your Honour to that, but, before I do, if I could just respond to Justice Hayne’s question and indicate, Justice Hayne, that what we are here to do – our submission is that the question should be determined that it is central to the amendments introduced into the Native Title Act in 1998 that native title has been extinguished by a previous exclusive possession act, and that an application cannot be brought and should not brought in respect of an area that has been subject to such an act. So in other words, we get a simple and a quick resolution to what could otherwise be expensive and time-consuming litigation, if it is apparent that the land the subject of the claim has been the subject of an exclusive possession act.

I will get back to the particular provisions which direct the Federal Court to determine issues of that nature promptly, but perhaps if I first reply to his Honour Justice Gummow’s inquiries. If I could take your Honour to volume 15 of the appeal book, which has the decision of the Full Court. If I could go firstly to page 3037 of the appeal book, your Honour will see that the Full Court was troubled by the same form in which the questions have been drafted that your Honour is. Looking at paragraph 10 at the top of the page, in the majority decision of their Honours the Chief Justice and Justice Sackville, their Honours say:

The questions for separate determination make no reference to the Native Title Act 1993 (Cth) (“NTA”). There was some disagreement between the Lessee and the other parties as to the significance of the NTA for the present proceedings. In order to resolve this disagreement it is necessary to summarise the provisions of the NTA which confirm the extinguishment of native title.

And that is what their Honours then go on to do. They go through the same sections, in fact, at greater length than Mr Jackson took your Honours to this morning, going through the provisions of Division 2B, looking at the definitions of “lease” and “pastoral lease”, and the like. Then, if we get to page 3039 of the appeal book ‑ ‑ ‑

GUMMOW J: It is paragraph 21 of the judgment that paints the odd term.

MR HUGHSTON: Yes, “The parties differed as to the significance of the legislative scheme contained in the” Act, and then, if we go over the page, we will see what that difference was. We will see, in my respectful submission, that the effect of the statutory scheme was well and truly raised. In paragraph 23:

Mr Basten QC, who appeared with Mr Blowes for the third respondent –

the Land Council –

submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA. He accepted that the NTA did not constitute a code in relation to extinguishment ‑ ‑ ‑

GUMMOW J: This word “code”, which is used by the Bar, is a very slippery one in any event, is it not? There is no right to a determination at common law, is there? That is what the case is all about.

MR HUGHSTON: No, there is not, your Honour. We have an applicant here who is seeking a determination under a particular statute. But what I am trying to explain to your Honour is that the statutory scheme was raised in the hearing before the Full Court, although it was argued principally or primarily on common law principles. That was done so because the parties seemed to be in agreement that the statute and the common law approached extinguishment from the same point of view, which is that if this particular lease or instrument granted exclusive possession, it would extinguish native title. So, in other words you would get the same result under the statute as you would get under the common law.

GUMMOW J: Not really, because the statute assumes you can have something that is not a common law lease, but which it grants a right of exclusive possession.

MR HUGHSTON: Yes.

GUMMOW J: We looked at that this morning.

MR HUGHSTON: Your Honour, the touchstone, though, for extinguishment, whether it is under the common law or whether it is under the statute, is a grant of exclusive possession. The issue was the same whether one is looking to see whether this is a lease at common law, and thus grants exclusive possession, or whether one is looking at the statute and saying, “Is this a statutory instrument that is described as a lease and creates a right of exclusive possession?”.

GUMMOW J: Well, the latter is the question.

MR HUGHSTON: The latter is the question, if your Honour pleases. But that question, although not specifically ‑ ‑ ‑

GUMMOW J: You cannot say this is a lease at common law, so you are just going round in circles.

MR HUGHSTON: No, my client does not argue that it was a lease at common law, if your Honour pleases.

GUMMOW J: All right, I will not say any more.

MR HUGHSTON: While I have got your Honours’ attention on page 3040 of volume 15 ‑ ‑ ‑

GUMMOW J: I am not too sure about that.

MR HUGHSTON: ‑ ‑ ‑if I could just keep reading at paragraph 24:

Mr Basten appeared to accept that under both the statutory scheme and the common law, the question was whether the Lease conferred a right of exclusive possession over the land. He also appeared to accept that this question was to be answered by reference to common law principles. Thus, on his submissions, the application of the NTA (and the NTA (NSW)) did not have any significant practical consequences, other than that the questions for determination should have explicitly referred to the legislation and, in particular, to the statutory concept of a “previous exclusive possession act”.

So the questions were perhaps inaptly framed in Mr Basten’s submissions but, nonetheless, the issue was before the Court and the Court purported to move on to determine that issue.

GLEESON CJ: What do you understand to be the point of departure between Justice Beaumont and the majority in relation to the answer to the third question? His answer is at page 3129 at line 35.

MR HUGHSTON: I would take it, your Honour, that his Honour Justice Beaumont is giving a general answer similar to the conclusion in Wik, that that particular lease has extinguished such incidents of native title as may be inconsistent, whereas the majority said, “Look, until we can determine what the actual incidents of native title are, such that we can see what may have been extinguished, we are not going to answer the question at all”.

GLEESON CJ: Was there any discussion in the judgments as to an example or some specific instances of what Justice Beaumont calls incidents of native title that would not be extinguished if the lease involved a grant of a right of exclusive possession?

MR HUGHSTON: No, your Honour, none that I can recall, and that is the difficulty that we see with this decision. We say that if this instrument did grant exclusive possession, then it did extinguish native title. Thus, if questions (a) or (b) had been answered, whether in the affirmative or whether in the negative, there would have been a resolution one way or the other to these proceedings. Either it would have been, if you like, a killer point for the leaseholder or the parties would have been aware that, no, this is a matter which has to go to trial for findings of fact because this particular instrument does not grant exclusive possession.

GLEESON CJ: I am not sure what evidence there was, but was there any reference in evidence or in argument to practical examples of incidents of native title that would have survived a grant of exclusive possession?

MR HUGHSTON: None that I can recall, your Honour. The issues seem to be with the interpretation of “exclusive possession” and whether in fact there was exclusive possession at all. I cannot recall any examples given. Could I take your Honours to section 61A of the Act.

KIRBY J: Where are we going, Mr Hughston?

MR HUGHSTON: I was going to take your Honours to 61A, but perhaps I should go firstly to section 61 which deals with the types of applications that are made to the Federal Court to put 61A in its context. Section 61 provides a table setting out the applications that may be made under this division of the Federal Court and the persons who may make them. What we are dealing with here is the first kind of application, which is an application for determination of native title. So that is what the application was in this case. If we go to section 61A, this deals with the restrictions on making of certain applications. Section 61A(2) provides that:

(2) If:
(a) a previous exclusive possession act . . . was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.

So there is a clear parliamentary intention there that if there has been a previous exclusive possession act, an application for a determination of native title shall not be made to the court.

GUMMOW J: That presents the issue that should have been litigated. There is reference to “the application”.

MR HUGHSTON: And there is provision under section 84C for a strike‑out application to be made.

GUMMOW J: Exactly.

MR HUGHSTON: But 84C also specifically provides that the strike‑out application is not the only remedy that may be provided. Could I perhaps take your Honours to section 84C(1):

If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Subsection (2) provides:

The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

But subsection (4) provides that:

This section does not prevent the making of any other application to strike out the main application.

GAUDRON J: It does not say anything about questions reserved or stated cases.

MR HUGHSTON: No, it does not, your Honour Justice Gaudron.

GLEESON CJ: Am I right in thinking that it is page 13 of volume 1 of the appeal book that we see these questions being the subject of an order for separate determination?

MR HUGHSTON: I will just have to look at that, your Honour - yes, that is my understanding, your Honour.

GLEESON CJ: I infer, from what appears on line 35, that there was some kind of mediation in process.

MR HUGHSTON: Yes, your Honour.

GLEESON CJ: Then Mr Wilson made an application for those orders that we see made on page 13.

MR HUGHSTON: Yes. Mr Wilson took the view that his lease did grant exclusive possession and, therefore, native title had been extinguished and, therefore, mediation would be fruitless or would not get them anywhere. For that reason, he asked the court to remove the matter from mediation and to resolve that particular issue, and the court agreed to remove it and determine the questions.

Your Honours, could I take your Honours, very briefly, to the transitional provisions relating to the 1998 Amendment Act, which make it clear that Mr Wilson’s application, although made prior to the date of the commencement of the amendments is, in fact, covered by section 61A and by section 84C. Do your Honours have the green reprint of the Native Title Act? That is the one I am working off at the moment?

KIRBY J: It is a palette coloured green.

MR HUGHSTON: Greenish, your Honour Justice Kirby.

GUMMOW J: It is item 21 on page 435.

MR HUGHSTON: If your Honour pleases. Your Honour is well ahead of me, I am afraid. Yes, but section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. So Mr Anderson’s application is caught by that particular provision. If I could also refer your Honours to, at page 425, clauses 5 and 6 “sets out various situations that may exist in relation to” an application that had already been “given to the Native Title Registrar” but which had not, as yet, been finalised or determined at the date when the amendments commenced.

Your Honours will see there is a list of four cases. What each of them provides is that, in effect, unless the application has been dealt with and determined, the application is taken to have been made to the Federal Court. Your Honours will see that under the subheading “Consequences”, and then if we could go then to page 439, your Honours will see in clause 36 that:

If an application is taken to have been made to the Federal Court:
(a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act -

and the new Act, of course, is the Native Title Act as amended. So Mr Anderson’s application is well and truly caught by the provisions of the new Act. If his application had been brought in relation to an area that had been the subject of a previous exclusive possession Act, it was incompetent and should not have been allowed to proceed further.

We have referred in our written submissions to other consequences which follow in relation to registration that Mr Anderson’s application would have to undergo the new registration test and the combined effect of sections 190A and 190B would be that the application could not be registered if it was over an area that had been the subject of a previous exclusive possession act. We have submitted that the position at common law and the position under the statute is no different. If I could perhaps take your Honours to some of the passages in Wik which lay down the common law.

GUMMOW J: We must have had these read to us I cannot think how many times in recent weeks.

HAYNE J: Are you making a submission that section 23B, et cetera of Division 2B do not apply, are to be supplemented? Why do you want to take us to Wik?

MR HUGHSTON: Well, they do apply.

HAYNE J: Then why do we need to go to Wik?

MR HUGHSTON: Because, whether one follows the common law or follows the statute law, the result is exactly the same because the test is the same. I agree with your Honour Justice Hayne that the statute is sufficient.

GLEESON CJ: Why do you not just give us page references? You say this is to Wik.

MR HUGHSTON: To Wik, if your Honour pleases.

GLEESON CJ: Why do you not just give us the page references?

MR HUGHSTON: If your Honour pleases. Page 86 point 8, 87 point 6, 135 at about point 7 of the page, 155 at about point 4, 176, and 194 at about point 9.

GLEESON CJ: Thank you.

MR HUGHSTON: All of those passages, we say, support the submission that what is relevant under the common law for the extinguishment of native title following a statutory grant is whether it includes a right of exclusive possession or confers a right of exclusive possession.

GUMMOW J: Now, what does that mean? What is the content of that expression? It is not an expression of ordinary use…..It is a legal expression. What is its legal content?

MR HUGHSTON: My client does not wish to submit that this particular lease grants exclusive possession or does not grant exclusive possession, so what I might have to say in terms of what is exclusive possession would be mischievous, frankly. It would be going beyond my instructions.

KIRBY J: You see, it is difficult for you to come along here, for a State of the Commonwealth of Australia, and say, “The question should have been answered but we do not give you any clue as to what we say was the proper answer.” In a sense, it is really a – I do not know quite what the adjective is, but it is a slightly offensive position for the State to adopt. Why should we listen to you?

MR HUGHSTON: Your Honour, all I can say is what my client’s interest is. My client’s interest is to have the issue determined one way or the other: does a Western Lands Act lease confer exclusive possession or not? That is an important question for native title litigation in New South Wales. There is a lot of Western Lands Act leases that are affected by it, but one must ‑ ‑ ‑

KIRBY J: I suppose you can say you are the State of the Aboriginal citizens of the State, and of the Western Lands Division land-holders of the State, and it is an important question for all the citizens of Australia in the State and you adopt a neutral stance, but you want the matter determined so that the State can take whatever steps are then necessary according to law?

MR HUGHSTON: I am grateful to your Honour for that exposition. That is the case, that the State does not wish to be seen to favour pastoralists over Aboriginals, or Aboriginals over pastoralists.

CALLINAN J: This is not an election, it is a court case.

MR HUGHSTON: No, I am aware of that, your Honour Justice Callinan, but other governments in the past have, I suppose ‑ ‑ ‑

CALLINAN J: I do not care whether they have done it or not. Surely you can make a useful submission of the effect of the lease and the effect of the legislation?

MR HUGHSTON: I am sure that I could not ‑ ‑ ‑

CALLINAN J: It is just a waste of time frankly, in my view, if you do not.

MR HUGHSTON: Your Honour, could I say that it would be perhaps, without cavilling with your Honour, a waste of time if I was to make a submission in the sense that Mr Jackson, Mr Basten, and others, have covered the area extremely well. I cannot think of any extra that I could add.

KIRBY J: The only point is though, that it is your legislation which intersects here with the federal legislation, and you are the grantor, and therefore one would have thought that you would have had, at least in assistance to the Court, as a State of the Commonwealth to the constitutional court of the nation, some help to give us. I have tried to express what I take to be your position.

MR HUGHSTON: Yes, and I appreciate that, Justice Kirby.

KIRBY J: Whether it is a good position or not is a matter of opinion.

CALLINAN J: You cannot help your instructions, anyway, can you?

MR HUGHSTON: No, I cannot, Justice Callinan. I can complain about them, perhaps, but no I cannot.

GLEESON CJ: It comes to this, Mr Hughston. You urge us to answer the questions, but you do not wish to urge the form the answer. Is there anything else you want to add? I think I can understand your position.

MR HUGHSTON: Yes, I think your Honour does. If your Honours please, that is a submission.

GLEESON CJ: Thank you, Mr Hughston. Is it Mr Pauling next?

MR PAULING: Your Honours, a lot of the material I intended to take the Court to has been covered either by your Honours, or by engaging others in debate. We rely on our written submissions, and at paragraphs 14 and 15, point out there that we begin the search for an answer to the questions in this case, within Part 2B of the Native Title Act and not outside the Native Title Act. That has been our stance consistently in earlier cases, including Ward.

I was to take Your Honours through the provisions in relation to strike out and the prohibition in section 61A(2) of the Act, where there has been a previous exclusive possession act, but that has already been covered.

Can I say, your Honour, at the outset our concern in coming in and seeking leave to intervene in these proceedings arose in two ways. The first was that it appeared from the way that the court had dealt with it, and you have been read the passage from the joint judgment where their Honours’ understanding of Mr Basten’s submission was put, that it really was to be decided at common law, but the question should specifically have mentioned the Native Title Act. So it was with concern that that approach had been apparently taken in the Full Court that we came to put the argument that no one starts within 2B and moves from there.

The second concern we have was it appeared at the end of both the joint judgment and Justice Beaumont’s judgment that what started out not being a Wik question, if I can use that epithet, had been turned firmly into one and so that questions (a) and (b) were more or less brushed aside to get to question (c) and then say, “Well, the only way we can resolve question (c) is by the inconsistency of incidents test” which has found voice already in the 1998 amendments to the Native Title Act in 24G. Your Honours, those were the matters that motivated us to come here and the Court has rightly drawn those matters out from counsel and dealt with them, and I do not need to take your Honours much further with them.

Can I say that in seeking for the indicia that might show whether or not the particular lease in question in this case involved a grant of exclusive possession, Justice Beaumont in particular, but all their Honours referred to Radaich v Smith and then moved on to see what was there. It is well argued that the differentiation between a lease and a licence in a commercial organisation might not inform the further explanation of exclusive possession in this case; but can I just ask your Honours to note the following – I do not need to take your Honours in full to the passages – but following on Radaich v Smith, your Honours are all familiar with Lord Templeman’s judgment in Street v Mountford [1985] 1 AC 809 ‑ ‑ ‑

GLEESON CJ: Mr Pauling, how do those statements of principle of Justice Windeyer or Lord Templeman accommodate the circumstance that in modern life even the owner of an estate in fee simple is subject to all manner of requirements about people who can come onto his or her land?

MR PAULING: Yes, but it is the quality of the ‑ ‑ ‑

GLEESON CJ: You probably do not have to look much further than a Local Government Act of a State or Territory to see all sorts of qualifications to what, as a matter of the use of English language, might be regarded as a right of exclusive possession.

MR PAULING: I appreciate that. Yes, the question that arises and the case I was to take your Honour to is the fourth in the series is, in fact, Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 and it is a speech of Lord Hoffmann in that case, where he comes to, at page 413 at the bottom, to discuss two things that are particularly relevant and pertinent to the issues here.

As your Honours are aware, in the Northern Territory, as in Queensland pastoral leases, there are reservations in favour of Aboriginal inhabitants, and that entitles them to come onto the land to gather things for subsistence or ceremonial purposes or, in some quaint phrases, “to construct whirlies” as they were hitherto used to do. In other words, to share possession of the land with the pastoralists.

McHUGH J: But it is not a question of sharing possession, is it? That is the difference between possession and occupation. Possession is exclusive, when one person can claim possession as distinct from entry or occupation to an area of land to the exclusion of any other person at that time.

MR PAULING: Well, that is why I wanted to bring your Honours to Lord Hoffmann’s speech on the very point, because at 413 he says:

In this case, it seems to me that the agreement, construed against the relevant background, plainly gave Mr Bruton a right to exclusive possession. There is nothing to suggest that he was to share possession with the trust, the council or anyone else. The trust did not retain such control over the premises as was inconsistent with Mr Bruton having exclusive possession, as was the case in Westminster City Council v Clarke [1992] 2 AC 288. The only rights which it reserved were for itself and the council to enter at certain times and for limited purposes. As Lord Templeman said in Street v Mountford [1985] AC 809, 818, such an express reservation “only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant.” Nor was there any other relationship between the parties to which Mr Bruton’s exclusive possession could be referable.

Your Honour, the situation with the Northern Territory pastoral leases, but not with Western District leases, is it is express in the document that it is anticipated – and Justice Toohey, in the case that has been often mentioned today, referred to the fact that there may be shared possession. That is the distinction we seek to draw here, by saying, yes, there are cases in Australia where, if we bring forward to this Court, let us say, on a strike‑out application – somebody makes an application in respect of a Northern Territory pastoral lease – were we to bring a strike-out application saying, “You have to strike this out; we have a prior exclusive possession act”, the answer would be ‑ ‑ ‑

McHUGH J: But I do not understand this notion of shared possession. You can have joint possession. I do not understand how you can have shared possession at common law.

MR PAULING: Your Honours, that is the way we understand the quality of the right of the indigenous inhabitants, according to the reservation, is to come onto the land and possess them, subject to such paramountcy as the rights that a pastoralist might have as to how the land is used.

GLEESON CJ: But if two people possess land, that means the two of them can kick a third person off the land. And if four people possess land, that means the four of them can exclude other people, or deny other people a right to come on. That just means they are either joint possessors or they have a right of possession in common.

MR PAULING: Yes. I accept what your Honour is saying, but the proposition, I suppose, that is raised here is that, unlike in this case, where anybody coming onto the land, unless they were the subject of a specific reservation, the lessee can wave around the lease and say, “Look, I am the lessee, get off”.

GLEESON CJ: But come back to this concept of shared possession with Aboriginal people. If a pastoralist has shared possession with an Aboriginal person, or a group of Aboriginal people, does that mean that if the pastoralist says to a third party, “You can come onto the land”, the Aboriginal person with whom the pastoralist is sharing possession can say, “No, you cannot”?

MR PAULING: No, because of the terms of the reservation.

CALLINAN J: But can you not have real conflicts? Think of the situation if an Aboriginal person wanted to take fish out of a stream or out of a billabong, for example, but the pastoralist was very concerned to keep the banks free so that there was access by stock. Which prevails?

MR PAULING: One would have to look at a concrete case with a particular pastoral lease ‑ ‑ ‑

KIRBY J: It is a pretty concrete case.

CALLINAN J: I have given you one. Which prevails?

MR PAULING: Well, the rights of the pastoralist.

CALLINAN J: They both want to do it – the stock want to have a drink at the same time as the Aboriginal people want to fish.

KIRBY J: Or themselves want to have a drink. The stock have priority over the Aboriginals.

MR PAULING: It is a matter of ultimately interpreting what that is but, generally speaking, at least in relation to native title rights, the Native Title Act would afford paramountcy to the activities of the pastoralists.

KIRBY J: Even over a drink?

MR PAULING: I do not think that when one gets to that specificity that one would be going to the Federal Court ‑ ‑ ‑

KIRBY J: You have to test it by that proposition though.

MR PAULING: It can be and, I mean, we looked at it in Ward in the situation of non-pastoral uses of pastoral leases.

McHUGH J: But you have to distinguish possession from rights of entry and rights of occupation. I have possession of my fee simple, notwithstanding that council inspectors may have a statutory right of entry. I have possession of my property even though my employee is in there in occupation under a licence. I still have the legal possession; he has a mere licence of occupation.

MR PAULING: Perhaps then I can step back a step and say this, that whatever the quality of the legal right that an Aboriginal inhabitant might have under a reservation in a Northern Territory pastoral lease, there is no such reservation here.

GLEESON CJ: Well, another example of the problem Justice McHugh raises, and one that arises commonly in practice, is where land is in a state of development and the builder has certain rights to go on for certain purposes. The owner might hand over possession of the land to the builder during the period of construction or the owner might not.

MR PAULING: Yes, and that would involve a construction of the contract between the owner and the builder as to what the rights were intended to convey.

GLEESON CJ: And that then in turn has consequences as to who can take proceedings if a third party comes onto the land that they want to get off. Who takes the action in ejectment - the owner or the builder?

MR PAULING: And what we say in relation to the particular facts of the matter before the Court is that the only person able to take an action in ejectment against the stranger coming on the squatter is the lessee under the Western Lands Act and that, we say, along with all the other circumstances, is ultimately conclusive of the fact that the right is a right to exclusive possession.

GLEESON CJ: Well, the fact that there are other people who, under statute or contractual arrangements or otherwise, have rights to come onto your land does not deny you exclusive possession.

MR PAULING: No, and we say that is entirely consistent with what Lord Templeman said in Street v Mountford, entirely consistent, and with Justice Windeyer’s approach to the matter, so that it may well in the end be a distinction that rather than pointing out a difference between the nature of the rights of Aboriginals in the Northern Territory under a reservation, what is happening in the present case merely points up the case that whatever the rights in the Northern Territory, there are no such rights as against the lessee here, which goes to the question about whether or not a right of exclusive possession really needs to be against the whole world or whether it is the right to bring and maintain an action in ejectment or trespass, and we say it is the latter.

CALLINAN J: Perhaps I should have asked Mr Jackson this question, but Mr Basten may know the answer to it. Dealings in perpetual leases have to be approved by the Minister in the same way as dealings with other leases under the Crown Lands Act, is that right?

MR PAULING: I do not pretend to be fully aware of all those provisions, but I believe that to be the case from what we heard this morning.

CALLINAN J: And a mortgage is, of course, a dealing. I am just wondering whether the Minister has approved mortgages with attornment clauses in them.

MR PAULING: I cannot answer that question, your Honour.

CALLINAN J: No, perhaps somebody else may be able to help me.

MR PAULING: That rather goes to the merits of it. I suppose really, to finish the point I am on there, what is happening is not that the right to bring an action in ejectment creates the right of exclusive possession, but rather that right secures the exclusive possession, which needs to be drawn out of the Act, the regulations and the lease. It would be our submission, if asked as to what the answers ought to have been, that (a) should be answered no, because you cannot determine the rights without looking at the lease and (a) does not involve looking at the lease, (b) does, and should be answered yes, and (c), your Honours, leads to the conclusion that if it is an exclusive possession Act, then by force of the Act native title is extinguished and that in order to make sure that that is the case, both in relation to schedule interests and the matters gathered up otherwise in the Act and involving exclusive possession, we have the regime whereby there is a prohibition and a strike-out provision.

Your Honours were not taken in detail to what happened after the 1998 amendments came in but suffice it to say that the applications were taken to have been made to the Federal Court under the new Act. They had to go through a registration process. You would fail the registration process if you failed to comply with section 61, 61A and 62. So that if in the registration process you got to the point where the registrar says, “Ah, this is a previous exclusive possession act” then your application fails the test.

There is, just as a matter of noting, in section 66(4) a further strike‑out application but this applying to a “State or Territory Minister” applying “within 28 days” so it not just a party that can bring a strike‑out application under 84, there is provision for a State or Territory Minister to bring a strike‑out application in a particular case. Unless I can be of further assistance to your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Pauling. Yes, Mr Basten.

MR BASTEN: Your Honours, may I deal with this matter in three stages. Firstly, we wanted to say something about the context and content of the questions which have been asked; secondly, we wish to address the substance of the issues dealt with by Mr Jackson this morning, and, thirdly, we would seek to make some brief comments in relation to the question of principle which I apprehend is inherent in what both your Honour the Chief Justice and Justice McHugh were saying a moment ago in relation to the nature of possession.

Can I say this in relation to the first matter. The question which arises involves proceedings, as your Honours are now fully aware, brought under section 61 of the Native Title Act in relation to a determination of “native title” as defined by section 223 of the Act. The question about whether or not that native title has been extinguished depends, we would say, and we have said, consistently, on the operation of Division 2B and in particular on the meaning and effect of those provisions as they pick up section 248A and the definition of an “exclusive pastoral lease”.

We were concerned at the outset that the questions as identified were not identified in terms of the Act. We said so, apparently not very clearly. We also were concerned that the arguments which were presented by the applicant before the Full Court of the Federal Court made no reference to the Act. The result is that if this Court is called upon to answer the questions or suggest what answers should be given to the questions it is in the absence of any coherent analysis of the way in which the Act operates. We do not accept that necessarily the outcome is the same under the Act as under the common law.

We suggest in paragraphs 5.1, I think, and 5.2 of the written submissions that the answers may be the same or they may differ. The answers may also depend upon whether the questions, as formulated, are answered purely by reference to an exclusive possession pastoral lease within 248A, in which case one finds sections 23B and 23C engaged or whether, as Justice Beaumont appeared to think appropriate, one can go further and consider the questions in relation to non‑exclusive pastoral leases which would engage the operation of section 23G which has its accompanying difficulties.

The way in which we would accept that the questions might be properly formulated and answered would be by reference to the forbidden text in 187 CLR which I will not name. If one accepts the proposition that what the Act does is to pick up the concept which is expressed in many places but perhaps sufficiently lucidly by Justice Toohey at page 122 about 10 lines down from the top where his Honour said:

There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession.

GLEESON CJ: Mr Basten, I am looking at the origin of these questions, which appears to be in the notice of motion at page 10 of the application book, and the questions begin on page 11. The three questions are questions which relate back to the lease, which is an expression defined in paragraph 1 of the notice of motion. I am trying to understand the scheme of the questions. Question (b) appears to be simply an elaboration of question (a), adding to it the terms and conditions of the lease, is that right?

MR BASTEN: Yes, your Honour.

GLEESON CJ: Why were there two separate questions?

MR BASTEN: Because, as I would understand it, the solicitors for the applicant and for notice of motion sought to identify a problem at a sufficient level of generality that it was not necessary to limit the consideration to the lease.

GLEESON CJ: Why?

MR BASTEN: In other words, the first attempt was to answer the question in a way which might have consequences for the whole of the western division to the extent that it is under pastoral leases.

GLEESON CJ: You mean question (a) was intended to raise the problem in a form that would have application to other leases?

MR BASTEN: Yes, all leases.

KIRBY J: It was a knockout type of point, I assume.

GLEESON CJ: But a knockout type of point in other cases.

MR BASTEN: Yes.

GLEESON CJ: Well, the judge was very patient to allow that question to be asked.

MR BASTEN: We thought so, your Honour.

GLEESON CJ: Then question (b) is the question that is concerned with this case.

MR BASTEN: Yes.

CALLINAN J: But, in fact, the lease would be a standard lease, would it not, Mr Basten? There may be some fairly trivial differences depending upon, perhaps, some local matters, but you would not expect very great differences between any of the leases under the Act, would you?

MR BASTEN: That is probably so, your Honour, because, as your Honours have already been shown, the degree of control exerted over these documents by the Act itself is very substantial. In answer to the points your Honour raises though, it does not mean that therefore one should ignore the terms of the lease in answering the question and that is why we say question (a) was inappropriate to answer, and we still do.

GLEESON CJ: At least as far as I am concerned, you may be pushing at an open door there, as far as question (a) is concerned, but question (b) then addresses this case. Now, what is the relationship between question (c) and question (b)?

MR BASTEN: Well, question (b) is almost in terms of a declaration as to a legal concept which is undefined which therefore, presumably, requires a third question, namely, what is the consequence of a declaration in that form?

GLEESON CJ: Suppose one were to come to the conclusion that question (a) is plainly inappropriate, question (b) should be answered, “Yes”, where would we go from there? Would that mean that the application should be struck out?

MR BASTEN: Can I answer that in two ways, your Honour. Firstly, avoiding the problem which we identify in question (b), namely, what does it mean to say that a right of exclusive possession has been granted ‑ ‑ ‑

HAYNE J: You would have to give a speaking answer, would you not?

MR BASTEN: Yes.

HAYNE J: You could not give an answer, “Yes” or “No”. You would have to give a speaking answer in the order.

MR BASTEN: That is so, and that was why I took his Honour Justice Toohey’s proposition. What we would understand in the Act exclusive possession means is a right to exclude all Aboriginal people who have the traditional right to occupancy as his Honour described it. But then the question is: what does one do with (c)? Well, if assuming (b) is answered against the proposition I have just put, there is that form of right granted to the pastoralist, then the answer to (c) must depend upon the operation of section 23C of the Native Title Act and, in a sense, the answer is dictated. There is a total extinguishment of native title permanently.

GLEESON CJ: Now, did Justice Beaumont answer question (b) “Yes”?

MR BASTEN: No.

GLEESON CJ: How did he come to answer question (c)?

MR BASTEN: Well, your Honour says, “How does he come to answer it?” In terms, he does not answer it, with respect.

GLEESON CJ: On page 3129 at line 35 ‑ ‑ ‑

MR BASTEN: Yes, but perhaps I should say this, that is not an answer to the question as formulated. Paragraph 275, your Honour?

GLEESON CJ: Yes.

MR BASTEN:

“The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the Lessee.”

GLEESON CJ: He seems not to have answered question (b) at all. Justice Beaumont said at the top of 3128 that he “need not answer question (a)”.

MR BASTEN: Yes, 265, your Honour, yes, 3128.

GLEESON CJ: Page 3128. I see, you are using a different print from me. Where do we find him answering question (b)?

MR BASTEN: There.

GLEESON CJ: Where?

MR BASTEN: Paragraph 265:

In these circumstances, before proceeding to questions (a) or (c), I would answer question (b) as follows:

“The Lease confers upon the lessee a right to the possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings.”

GLEESON CJ: Then he goes on to (c). He does not reframe (c).

MR BASTEN: No.

GLEESON CJ: But since the introductory words of (c) are, “If the answer to question (a) or question (b) is ‘Yes’”, he must thought that in substance he was answering question (b) “Yes”.

MR BASTEN: Yes. Well, he did not reframe question (b) either, although the introductory words depended on the answer to question (a) which he did not answer.

HAYNE J: The position is not eased by the form of order ultimately made by the court, is it ‑ ‑ ‑

MR BASTEN: No.

HAYNE J: ‑ ‑ ‑ where you have question (c), “Strictly unnecessary to answer”, but anyway. That is the order made by the Full Court.

MR BASTEN: That is the form of the order made by the Full Court, I am sorry, yes.

HAYNE J: Yes. Now, I do not ‑ ‑ ‑

GLEESON CJ: Who won this case?

MR BASTEN: I do not know, your Honour.

HAYNE J: I do not quite know what the answer means, “Strictly unnecessary to answer”.

KIRBY J: Who got the costs?

MR BASTEN: I do not think anybody did, your Honour. Are they still reserved? We will find out shortly no doubt. But the point I am seeking to make, I suppose, is that, at the end of the day, it is simply not possible to answer the questions in this form properly. The only way in which one could answer the questions is to begin with a statement about what the concept of exclusive possession means in section 23C or 248A. Technically perhaps one would assume that it is the same in each, but ‑ ‑ ‑

GLEESON CJ: What is your submission about that?

MR BASTEN: That is the submission I make by reference to page 122 of Wik, namely that what one is asked to determine is whether the grantee has conferred upon him a right to exclude all Aboriginal people from the land, including those who occupy it in accordance with their traditional title.

GLEESON CJ: Is that different from a question whether he has the right to exclude everybody else, including all Aboriginal people, et cetera?

MR BASTEN: No, but your Honour put it in a slightly more evocative way earlier this afternoon, namely how could it be that he has a right to exclude everybody and yet not Aboriginal people? The answer to that may be that those who have a prior interest may be treated differently, just as others are treated differently under the various statutes. At the end of the day, I suppose – and this comes to the point I was going to make last – when one looks at cases like Bruton, one finds, as Professor Gray notes, that there has been a quite significant variation in the way the courts are treating questions of possession or exclusive possession, whether they are different concepts or not.

In this context the point is highlighted because the term has a meaning for the purposes of the statute. Therefore, we would say one properly understands the term to mean precisely that which one would expect from looking at the earlier case law discussing native title, namely has one been given a right to exclude Aboriginal people who might otherwise be entitled to occupy the land pursuant to the native title?

GLEESON CJ: Presumably if you are inquiring whether somebody has a right of exclusive possession, you are inquiring whether that person has a right to exclude everybody else or – what is the same thing – deny admittance to everybody else.

MR BASTEN: One obviously is not literally.

GLEESON CJ: Then you put to one side presumably rights to come onto your land that exist by reason of statute or by reason of contractual provisions. The fact that the gas man and the electricity man have the right to come onto my land to read meters does not mean I do not have the exclusive possession of the land in respect of which I hold an estate in fee simple. The fact that council inspectors can swarm all over the place looking for examples of non‑compliance with their regulations does not cut down my right of exclusive possession, or the fact that I hand the land over to a builder for six months while he demolishes my premises and builds a new building does not affect the matter. How do you reconcile rights of that kind with a right of exclusive possession?

MR BASTEN: One would think, your Honour, only by acknowledging that there is a significant variation being wrought on the meaning of the concept. In other words, as each statutory provision makes an inroad upon the literal terms, one must accept that at law the concept has a changing meaning.

GLEESON CJ: I am not sure. I do not share possession with the gas man when he comes to read the meter, and depending upon the nature of the contract I entered into, I probably do not share possession with the builder.

MR BASTEN: Then the answer to your Honour’s question in those terms may be: does anybody else have legal possession of the land? In other words ‑ ‑ ‑

GLEESON CJ: As distinct from a right of entry ‑ ‑ ‑

MR BASTEN: That is right.

GLEESON CJ: ‑ ‑ ‑ or a right of occupancy.

MR BASTEN: That is so. It may depend on the reason one is asking the question, because if one is asking the question in order to determine whether one has a right to exclude entry, as, for example, of a third party who is unlawfully seeking entry, then you may get a different answer than if you are saying: do I share this possession with anyone else?

GLEESON CJ: Well, then, why is a right of exclusive possession of land inconsistent with rights of entry by Aboriginal people?

MR BASTEN: I think I am saying that, for the purposes of the statutory provision, that is the test which one is applying: is it inconsistent with those rights of entry, or not?

GLEESON CJ: Well, is there anything that is inconsistent with a right of exclusive possession?

MR BASTEN: In the abstract, your Honour, that question is perhaps hard to answer, but when one looks - your Honours were taken to 254 and 255, I think, of the Crown Lands Consolidation Act - there are similar provisions, that were discussed in Wik, in the Queensland legislation – one finds a right to exclude or remove people who are in unlawful occupation.

GLEESON CJ: You have a right to exclude people you just do not want to be there. They do not have to be in unlawful occupation. They are knocking on your door, saying, “Can I come in?” And you are saying, “No.”

MR BASTEN: Then the question may be whether they have a right of entry despite your refusal.

GLEESON CJ: Exactly. Now, if you have a right of exclusive possession, how can they have a right of entry? Except pursuant to statute or pursuant to a contract.

MR BASTEN: Well, that may be so, your Honour. If, on the assumption that the common law, as opposed to what we have been talking about as the general law, does not allow any person onto the land. But even that is not quite correct – well, perhaps it is, perhaps the landlord’s rights are contractual – but ‑ ‑ ‑

GLEESON CJ: Beginning with the statute, section 23B(2)(c)(viii) defines a previous exclusive possession act as one that consists of the granting of:

any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

Now, what do you understand the expression, “a right of exclusive possession”, in section 23B(2)(c)(viii) to mean?

MR BASTEN: I am happy to adopt the phrase that your Honour did, as long as it is expressed in the full sense; namely, a right to exclude all other people, including Aborigines, who might otherwise have a right of entry pursuant to a traditional title.

GLEESON CJ: You may need to add to that. You may need to say, as a first element, that it has be a right to possession.

MR BASTEN: I hesitated to do that because I thought there might be a level of circularity in that, or we might get into a debate about whether possession can be shared. I can come to that point if that is convenient, I was going to come back to that. In order to answer your Honour’s question, I would be content to do that and make that assumption.

GLEESON CJ: So it is a right of possession that carries with it a right to exclude or deny entry to all other people?

MR BASTEN: Including those with a prior interest, yes.

GLEESON CJ: All other people.

MR BASTEN: Yes, but what I am saying I think, your Honour, is that one might have answered that differently before Mabo, than one would afterwards. In other words, once one acknowledges that certain people have legal rights to come onto the land, then one looks for something in the grant which expressly abrogates those rights, or one looks for incidents of the grant which clearly and plainly intend that abrogation.

GLEESON CJ: How do you formulate that in a way that accommodates the right of the prickly pear inspector to come and look at the land?

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

[2000] HCATrans 451

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