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Casenote by James Fitzgerald
In 1994, Drummond J directed in these proceedings that certain questions of law be decided upon a full hearing of the proceedings.
Argument on the Preliminary Questions of Law was taken in Brisbane between October and December 1994. On 29 January 1996, Drummond J delivered his decision upon the Preliminary Questions of Law. None of the questions were decided in favour of the Wik people.
This casenote takes the form of a summary of the reasons for Drummond J's decision, and contains relevant extracts of the text on the Preliminary Questions of Law.
'Has the power of the Parliament of Queensland to pass laws dealing with the leasing or occupation of lands for pastoral purposes within Queensland at any time been limited ... to a power to enact only such laws as:
'(a) do not extinguish or impair Aboriginal title (if any) or possessory title (if any) of the Wik Peoples which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales; or
'(b) permit grants for pastoral purposes of leases, licences or permissions which:'(i) are subject to a reservation in favour of the Wik Peoples ... of the rights and interests of the Wik Peoples ... comprising their Aboriginal title (if any) which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales;
'(ii) do not confer rights to exclusive possession on the grantees thereof;
'(iii) confer only rights consistent with the concurrent and continuing exercise of the rights (if any) of the Wik Peoples ... under their Aboriginal title (if any) which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?'
Questions 1A (a) and (b) are answered: No.
On 16 July 1855, the Imperial Parliament passed the New South Wales Constitution Act 1855 (Imp) ('the NSW Act 1855') and the Australian Waste Lands Management Act 1855 (Imp). Section 2 of the NSW Act 1855 gave the colonial government of New South Wales entire management and control of Crown lands in the Australian colony, on the proviso that any 'Contracts, Promises or Engagements' made by or on behalf of the Crown in respect of the colonial lands before the passing of the NSW Act 1855 be preserved. A similar proviso was contained in the Land Sales Act 1842 (Imp). The proviso also appeared in the Letters Patent and Order in Council of 6 June 1859, which established the Colony of Queensland, and later in the Constitution Act 1867 (Qld).
Relying upon Imperial Despatches and other historical documents, the applicants sought to demonstrate that prior to 1855 the Crown had 'promised or undertaken' to:
The applicants argued that the Queensland Legislature was not entitled to legislate inconsistently with such 'promise or engagement' on account of the proviso contained in s2 of the NSW Act 1855 and subsequent legislation. It was not contended that any undertaking by the Crown amounted to a 'contract'.
The issue of possessory title referred to in the question was not pursued by the applicants.
Despatches brought into evidence showed the concerns of both the Imperial Secretary of State (Earl Grey) and the Colonial Governor Fitzroy prior to 1855, that the expansion of European settlement in the colony demanded protection of the interests of Aboriginal people, who were being denied access to their traditional lands and livelihoods.
Concerns about the proliferation and effect of pastoral lease . grants were explicit. For example, in Dispatch No. 24 to Governor Fitzroy dated 11 February 1848, the Secretary of State said:
'I think it is essential that it be generally understood that leases granted for ... [pastoral] purpose ... give the grantees only an exclusive right of pasturage for this purpose ... ; but that these leases are not intended to deprive the natives of their former right to hunt over these districts or wander over them in search of substinence, in the manner to which they have been heretofore customed ... except over land actually cultivated or fenced in for that purpose'.
It is noteworthy that the applicants limited their argument to lands which were not 'cultivated or fenced in'.
An Order in Council dated 18 July 1849 gave the Colonial Governor broad discretion to include in any prospective pastoral lease such conditions or reservations 'as may be necessary for securing the peaceable and effectual occupation of the [leased] lands ... and for preventing the abuses and inconveniences incident thereto'. By Despatch No. 134 dated 6 August 1849 to Governor Fitzroy, the Secretary of State communicated his clear intention that the discretionary powers given to the Governor by the Order in Council of 18 July 1849 should be used to protect the traditional rights of Aboriginal people.
Drummond J construed the meaning of 'promises or engagements' in the proviso contained in s2 of the NSW Act 1855 in the context of the manner of disposal of Crown lands by the colonial government prior to 1842. In particular, His Honour discussed the practice of 'promising' land to settlers prior to formally granting a legal estate. The term 'engagement', while not a technical term, was used commonly at the time to describe government undertakings (which did not create a legal estate) to grant interests in Crown land.
Drummond J held that the purpose of the proviso in s2 of the NSW Act 1855 was to maintain the ability of the Crown to honour any outstanding arrangement it had entered into under the system of disposal of the Crown lands in operation prior to the enactment of the Land Sales Act 1842. This finding accords with Dawson J's interpretation of the proviso in s2 of the NSW Act 1855 in Mabo [No. 1] (Mabo v Queensland (No. 1) (1988) 166 CLR 186). Drummond J said that the proviso did not refer to concerns for Aboriginal inhabitants of the colony expressed from time to time by senior Imperial officials.
Drummond J held that even if communications between the Secretary of State and Colonial Governor from 1847 to 1850 gave rise to a 'promise or engagement' in terms of s2 of the NSW Act 1855, only promises made prior to the enactment of the Land Sales Act 1842 were capable of being carried lawfully into effect, because the Colonial Governor's practice of 'promising' land was superseded by the regime for disposal of Crown land which came into force with the 1842 Act.
Whether or not the term 'promise or engagement' had the confined meaning which Drummond J thought, and even if it was for a time the policy of the Imperial government to protect native title rights, His Honour found that the Colonial Governor was given broad discretionary powers under the Order in Council dated 18 July 1849, along with instructions to protect those rights. The Governor did not exercise his discretion to insert into pastoral leases reservations preserving native title interests, and although exhorted, was never compelled by Imperial authorities to do so. This, according to His Honour, reflected the move towards granting NSW responsible government in the 1850s. It stands in contrast to the Imperial government's mandatory requirement for the insertion of reservations in pastoral leases in the fledgling colony of Western Australia during the same period.
His Honour held that none of the legislation or instruments referred to in the question operated as a limitation on the power of the Queensland legislature, relying on McCawley v R ([1920] AC 691) and Union Steamship Company of Australia Pty Ltd v King ((1988) [1988] HCA 55; 166 CLR 1).
'If the answer to each of the questions in 1A is "no":
'If at any time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding ("Pastoral Lease");
'(a) is the Pastoral Lease subject to a reservation in favour of the Wik Peoples ... of any rights or interests which might comprise such Aboriginal title or possessory title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?;
'(b) does the Pastoral Lease confer rights to exclusive possession on the grantee?
'If the answer to (a) is "no" and the answer to (b) is "yes":
'(c) does the creation of the Pastoral Lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Wik Peoples ... which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?;
'(d) did the grant of the Pastoral Lease necessarily extinguish all incidents of Aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the Pastoral Lease?'
Question 1B is answered: (a) No; (b) Yes; (c) Yes; (d) Yes.
Holroyd River Holdings Pastoral Lease was selected for this question because it is typical of the leases issued to other pastoral lessee respondents.
It is a 'Lease of Pastoral Holding under Part VI, Division I, of the Land Acts 1962-1974 [Qld]'. Some of its terms are: it devises and leases to the lessees an area of 2,830 km2; the term of the lease is 30 years, commencing 1 January 1974; rent and rent review provisions are specified; all gold, minerals and petroleum are expressly reserved to the Crown, along with rights of access for mining and exploration purposes; right of access is reserved for any person duly authorised by the Crown 'for any purpose whatsoever'; and it contains conditions concerning the construction and maintenance of certain improvements by the lessee.
The Land Acts 1962-1974 provided the further conditions in the lease that up to one third of the leased area may be resumed after 15 years without compensation to the lessee (s312); that the issue of a lease instrument (as occurred here) vests in the lessee an interest in the leased land (ss6(2) & 160(3)); and that the lessee's interest may be sublet (s274(2)), mortgaged (s275), vested in the Official Receiver or Trustee upon bankruptcy of the lessee (s291), and transferred (s286).
Having regard to the above terms, Drummond J determined that the lessee acquired an interest in the land for the term of the lease, not a mere right of pasturage.
Drummond J compared the terms of the Holroyd River Holdings pastoral lease with the 1904 lease considered in North Ganalanja & Bidanggu Aboriginal Corporations v Queensland ((1995) 132 ALR 565 - 'the Waanyi case'), and held that the Holroyd River Holding lease was sufficiently similar to the 1904 lease considered in the Waanyi case that it should be held to confer rights of exclusive possession on the lessee in accordance with the principles set out in the Waanyi case. Consequently, His Honour held that native title was extinguished over the area of the lease.
Drummond J considered the majority decision of the Full Federal Court in the Waanyi case binding authority that:
1. The executive act of granting a pastoral lease underCrown lands legislation that does not differ, materially from the Land Act 1902 (Qld) will extinguish any native title rights over the subject land, provided the lease confers a right of exclusive possession upon the lessee for other than a short period, and provided the lease does not contain a reservation sufficient to preserve those native title rights;
2. A lease will confer a right of exclusive possession sufficient to have that extinguishing effect, even if the lease interest is subject to conditions and limitations of the kind to which the 1904 lease considered in the Waanyi case was subject, and regardless that the lease is expressed to be 'for pastoral purposes only'; and
3. The factual issue that a grant for pastoral purposes may be capable of being enjoyed concurrently with the exercise of native title rights is irrelevant to the question of extinguishment.
The applicants argued that a reservation in favour of Aboriginal people should be implied into the lease, having regard to the intentions of the Imperial Parliament referred to in Question 1A, and in circumstances where occasional Aboriginal entry on to a lease area of some 3000 km2 may have no impact on pastoral activities.
Drummond J rejected as irrelevant the dictum of Deane and Gaudron JJ in Mabo (No. 2) (Mabo v Queensland (No. 2)(1992)175 CLR 1 at 111), because the intention of Parliament to extinguish native title would only be at issue in a question whether a grant under statute had extinguished native title. Here, His Honour had already determined the intention of Parliament to grant a right of exclusive possession. In addition, the possibility that a pastoralist may conduct pastoral activities in a way that does not interfere with native title rights is 'too flimsy a basis' for implying a reservation of the kind sought into all grants of pastoral leases under the Land Acts 1962-74.
'If the answer to each of the questions in 1A is "no":
'If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Mitchellton Pastoral Holding No. 2464 and the Mitchellton Pastoral Holding No. 2540;
'(a) was either of the ... Leases subject to a reservation in favour of the Thayorre People ... of any rights or interests which might comprise such Aboriginal title or possessory title of the Thayorre People ... which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?;
'(b) did either of the ... Leases confer rights to exclusive possession on the grantee?
'If the answer to (a) is "no" and the answer to (b) is "yes";
'(c) does the creation of the ... Leases that had these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Thayorre People ... which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales?
'(d) did the grant of either of the ... Leases necessarily extinguish all incidents of Aboriginal title or possessory title of the Thayorre People in respect of the land demised under either of the Mitchellton Pastoral Leases?'
Question 1C is answered: (a) No; (b) Yes, both did; (c) Yes; (d) Yes - the grant of the first of these leases extinguished Aboriginal title.
The lessees of the Mitchellton Pastoral leases never took possession of their holdings. The first lease was for a term of 30 years from 1 April 1915, but was forfeited for non-payment of rent on 20 July 1918. The second lease, also for a term of 30 years from 1 January 1919, was surrendered from 31 December 1921.
The Thayorre People, whose traditional lands are affected by the Mitchellton leases, argued that as the lessees never entered into possession of the leased land, neither lessee obtained an estate or interest in the land (Joyner v Weeks [1891] UKLawRpKQB 90; [1891] 2 QB 31 at 47). Therefore, they argued, native title was not extinguished.
Relying on the Full Court's decision in the Waanyi case, Drummond J held that the Mitchellton leases were in materially similar terms to the 1904 lease considered in the Waanyi case, and so applied the principles of the Waanyi case to hold that the Mitchellton leases entitled the lessees to exclusive possession fatal to the continuance of native title. Drummond J held that the issue of entry by the lessee was irrelevant because it is the grant of an inconsistent interest which extinguishes native title.
The Thayorre People also argued that as the Mitchellton leases were expressed to be 'for pastoral purposes only', no grant of exclusive possession was made under them; that as the leases were not unqualified grants of exclusive possession, native title was capable of surviving; and that some native title rights are capable of co-existence with leasehold interests in a similar fashion to profits a prendre over leased land.
Drummond J rejected these arguments on the basis that he was bound by the decision of the majority in the Waanyi case to hold that the grant of exclusive possession conferred under the leases extinguished native title.
'Did the Comalco Act, the Comalco Agreement, or Special Bauxite Mining Lease No. 1 (relevantly now known as Mining Lease 7024), purport to grant rights to exploit the resources of the seabed beyond the territorial limits of Queensland?'
Decline to answer.
The Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) ('the Comalco Act') and Mining Lease 7024 ('ML7024') purport to grant rights to Comalco to exploit certain of the resources of the seabed near Weipa.
Drummond J decided that in order to answer the question, it would be necessary to enquire whether, as a matter of fact, ML7024 extends beyond the inland waters of Queensland. Drummond J declined to answer the question until it is determined where the geographical boundary between Queensland and Commonwealth territory lies.
'If any Aboriginal title or possessory title of the Wik Peoples included rights of ownership, possession or control of minerals or petroleum (other than minerals or petroleum on land below the low water mark), were those rights extinguished by:
'As to minerals - Mining on Private Land Act 1909 (or any amendment thereof), Mining Act 1968 (or any amendment thereof);
'As to petroleum: Petroleum Act 1915 (or any amendment thereof), Petroleum Act 1923 (or any amendment thereof)?'
Questions 3 is answered: as to minerals: Yes - by the Mining on Private Land Act 1909 or, at the latest, by the Mining Acts Amendment Act 1925; as to petroleum: Yes - by the Petroleum Act 1915.
Drummond J summarised the history of legislative expropriation of minerals by the Crown in Queensland. His Honour held that in this case, concerning Crown lands and lands subject to different forms of Crown grant (except freehold), any native title to minerals which once existed was extinguished by the declaration of Crown ownership of those minerals contained in ss6(1)(v) and 21A of the Mining on Private Land Act 1909 (Qld), s110 of the Mining Act 1968 (Qld) and currently s1(9) of the Mineral Resources Act 1989 (Qld). His Honour reached the same conclusion as to petroleum under the Petroleum Act 1915 (Qld). Native title did not revive upon the repeal of the 1909 Act.
The applicants argued that the declaration of Crown ownership of minerals contained in the legislation listed above was premised on an incorrect previous assumption that the Crown acquired absolute ownership of the land in which the minerals were situated by virtue of the Crown's annexation of the land. The High Court's decision in Mabo (No. 2) had shown that assumption to be incorrect.
Drummond J rejected the applicants' argument. The intention of the Parliament in enacting the legislation was to acquire full beneficial ownership and public control of the entire mineral resources of Queensland (with some limited exceptions), irrespective of who, if anyone, beneficially owned interests in the land apart from minerals. It was not merely the intention of Parliament to confirm an (incorrect) belief that the Crown gained absolute ownership of minerals in land by virtue of the Crown's radical title to the land acquired on annexation. Further, such appropriation of interest in land by the Crown to the Crown is capable of extinguishing native title (Mabo (No. 2) per Brennan J at 50, Deane and Gaudron JJ at 110).
The applicants argued that as the Crown owes a fiduciary duty to native title holders, the general declarations of Crown ownership of minerals in the legislation were not intended to apply to minerals which might be subject to native title (United States v Northern Paiute Nation 393 F 2d 786 (1968)). Drummond J held that even if a fiduciary duty was owed, the American decision could be distinguished on the facts and did not support the applicants' proposition.
Drummond J noted that not all native title rights to the sub-surface are affected by his decision; only those rights to use of substances which fall within the statutory definition of minerals are affected.
'May any of the claims [concerning procedural unfairness, breach of fiduciary duty, unjust enrichment and account for profits in] the Further Amended Statement of Claim be maintained against the State of Queensland or Comalco Aluminium Limited notwithstanding the enactment of the Comalco Act, the making of the Comalco Agreement, the publication in the Queensland Government Gazette of 22 March 1958 pursuant to s5 of the Comalco Act of the proclamation that the Agreement authorised by the Comalco Act was made on 16 December 1957, and the grant of Special Bauxite Mining Lease No. 1?'
Question 4 is answered: No.
The Comalco Act purported to authorise the Queensland Premier to enter into the Comalco Agreement (s2), gave the Agreement the force of law (s3), and provided that variation to the Agreement could only be made by agreement between Comalco and the Minister (s4).
The applicants alleged in the Further Amended Statement of Claim that:
The applicants attacked the validity of the Comalco Act because it delegated to the Executive and Comalco unrestricted power to amend an agreement having the force of law, in contravention of s40 of the Constitution Act 1867 (Qld) which vested such power in the legislature.
Drummond J referred to the decision of Wanstall SPJ and Dunn J in Commonwealth Aluminium Corporation Limited v Attorney-General ([1976] QdR 231) as authority that the Queensland Parliament had not invalidly delegated legislative power to the Executive and Comalco under the Comalco Act, as it had always retained full authority to repeal or amend the Comalco Act and full authority to amend the Comalco Agreement notwithstanding ss3 and 4 of the Comalco Act.
The applicants argued that s3 of the Comalco Act gave the Comalco Agreement only such statutory force as was necessary to make the Agreement lawful and effective. There was no need for the statutory force given by s3 to extend to the process of negotiation between the Executive and Comalco and so the Executive was subject to the ordinary obligations of government to give procedural fairness to affected persons like the applicants.
Drummond J held that the words of s3 of the Comalco Act should be given their ordinary meaning (Institute of Patent Agents v Lockwood [1894] UKLawRpAC 38; [1894] AC 347 at 360), and that the words of s3 (that the Comalco Agreement and its provisions 'shall have the force of law as though the Agreement were an enactment of this Act') give the agreement a statutory character which does not allow the applicants to challenge the Agreement on any grounds that a contract may be challenged.
Having determined that the Agreement has the force of statute, His Honour refused to engage in an enquiry about the circumstances leading to the making of the Agreement. To do so, he said, would involve a denial of the doctrine of Parliamentary Sovereignty.
For the reasons set out above, Drummond J held that the applicants cannot maintain their claims relating to procedural unfairness or breach of fiduciary duty.
Unlike the Comalco Agreement, ML7024 does not have the force of statute: Corporation of the Director of Aboriginal and Islanders Advancement v Peinkinna (1978) 52 ALJR 286 at 291. However, ML7024 was granted to Comalco under express provisions of the Agreement which operated as a 'statutory command'. Drummond J held that the Executive, in obeying a statutory command, is under no duty to ensure procedural fairness to those whose rights may be effected by the carrying into effect of the command. Neither will the party carrying out the command be liable for breach of trust of other duties in those circumstances. His Honour referred to a line of authority including Mersey Docks and Harbour Board of Trustees v Gibbs [1866] UKLawRpHL 9; (1866) LR 1 HL 93 as supportive of the principle that no one can claim any remedy at law or in equity for injury resulting from an act either expressly or impliedly authorised by statute.
Referring to the applicants' claim that Queensland and Comalco account for unjust enrichment, Drummond J held that Australian law did not recognise such a claim, based as he understood it solely on the general unfairness of an arrangement authorised by statute.
'May any of the claims [concerning procedural fairness, breach of fiduciary duty, unjust enrichment and account for profits in] the Further Amended Statement of Claim be maintained against the State of Queensland or Aluminium Pechiney Holdings Pty Ltd, notwithstanding the enactment of the Aurukun Associates Agreement Act 1975, the making of the Aurukun Associates Agreement, the publication in the Queensland Government Gazette of the proclamation of the making of the Agreement pursuant to the Act and the grant of Special Bauxite Mining Lease No. 9?'
Question 5 is answered: No.
The Aurukun Associates Agreement Act 1975 (Qld) provides for the making of a mining franchise agreement (the Aurukun Associates Agreement) which, like the Comalco Agreement, has the force of statute.
Noting that the Aurukun Associates Agreement Act 1975 and the Aurukun Associates Agreement have been the subject of litigation in Peinkinna, Drummond J answered this question with the same reasons given in Question 4.
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