Wororra Peoples & Ors v State of Western Australia M147/1993 [1994] HCATrans 23 (14 September 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P4 of 1994

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Melbourne No M147 of 1993

B e t w e e n -

THE WORORRA PEOPLES (who are represented by DONNY WOOLAGOODJAH and GRACE UMBAGAI

First-named Plaintiffs

THE YAWURU PEOPLES (who are represented by FRANCIS DJAIGWEEN and FRANK SEBASTIAN

Second-named Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry

Perth No P45 of 1993

B e t w e e n -

TEDDY BILJABU, BILLLY GIBBS, BOBBY ROBERTS, PATRICIA FRY, NYERI MORGAN, BRIAN SAMSON, DITCH WILLIAMS (who bring this action on their own behalf and on behalf of the Aboriginal people known as Martu)

Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 SEPTEMBER 1994, AT 10.05 AM

(Continued from 13/9/94)

Copyright in the High Court of Australia

____________

MASON CJ: Yes, Mr Castan.

MR CASTAN: If the Court please. When we adjourned yesterday afternoon I had just commenced to interrupt Your Honour Justice Toohey who was about to address a question to me concerning paragraph 25 on page 94 of our submissions, being book 2 of the documents.

TOOHEY J: Would you like to hear the question before you answer it, Mr Castan?

MR CASTAN: And this time, yes, I would, of course, seek - - -

TOOHEY J: It is this: there is a proposition in paragraph 25 that whatever the character of native title, as defined in the West Australian Act, if the statutory conversion falls short of, say, freehold title, then the Act runs counter to the Racial Discrimination Act 1902 .

MR CASTAN: It is not that, but it is rather the other way around, Your Honour; it is rather that if legislation proceeds on the basis that in all instances native title is to be treated as having rights less than any other kinds of interests in land, then the Act is discriminatory. In other words, one can put the matter as a general proposition and talk about the right to inherit known property and say, that is harmed, and that we put as a general proposition. We say that as a general proposition that is true.

There may be then lesser rights, assuming they were determined to be native title rights, which are converted and which have then the character of usage rights of the lesser level of benefit to people than what we would call "full native title rights" or "the full complement of native title rights". We say, even those people are affected adversely at the general level, but then we go further and say, and legislation which in all instances treats all kinds of native title as lesser than all kinds of other interests in land, has the effect of depriving the people who otherwise own native title of the right to inherit known property. So, it can be put at the higher level generally in terms of the right to own property and then it can be put, when one gets to the specifics of the legislation, and finds that it also operates so as to diminish the rights even when they are lesser rights.

TOOHEY J: How do you apply that to section 7(2) of the Land (Titles and Traditional Usage) Act, which purports to confer rights equivalent in extent to the rights and entitlement to some.....?

MR CASTAN: We say that if legislation - putting the matter at its most general, which is this section of our submissions under the heading F at page 94, Arbitrariness and Compensation where paragraph 25 appears, what we are driving towards is a set of conclusions that appear at the end of that section F which says that the fact that the rights are extinguished but converted into statutory rights of this kind at all is, itself, discriminatory. We do say that, and we say that for reasons that are spelt out and that lead to the conclusion that, as we would respectfully put it, to have the rights converted into rights which are of this kind and which are subject to these restrictions is, in our respectful submission, discriminatory.

When one actually comes to look at the operation of section 7(2), one finds that while it might be true to say that if one converted native title rights into a bundle of statutory rights which, in all respects, were operating equally to the way in which they would have operated had they not been so converted, one would not be able to say that there had been any adverse effect on the right to inherit and own property because one is given an equivalent right to own property.

TOOHEY J: Is the key then the words "unless this Act provides otherwise"?

MR CASTAN: Yes, Your Honour.

TOOHEY J: Yes, I understand that.

MR CASTAN: And when one comes to examine it, we go to that in some detail.

TOOHEY J: Yes, thank you.

DAWSON J: I do not understand, Mr Castan, how one compares native title with the ordinary rights in relation to property which other people have, because the rights in relation to native title are in addition to the rights which everyone has, including Aboriginal people, to own and to sell and to inherit land. Really what you have got is a situation where there is different treatment for a different situation.

MR CASTAN: Yes, and if all that occurs is that legislation deals with the different rights in ways that are appropriate to the difference and relevant to the difference but do not otherwise diminish the ways in which those rights can be enjoyed as against - - -

DAWSON J: It may diminish or not, but it is not discrimination against anyone.

MR CASTAN: We would respectfully submit it is discrimination.

DAWSON J: Why?

MR CASTAN: If the enjoyment of the rights, albeit they be different rights, is - - -

DAWSON J: But that is only because you compare them with the rights which other people have in relation to property other than native title, but they are treated entirely equally there.

MR CASTAN: Let me give an example, Your Honour, that perhaps might answer Your Honour's question. If the rights assume native title rights which do include the right to exclusive possession as a matter of the common law application of them - to take the Meriam people on Murray Island in respect of whom this Court has made declarations - if one assumes that particular situation, if legislation is passed which affects rights to possession in relation to land generally and across the State, then it is not discriminatory and it will affect those persons as well as other persons having rights to possession. But if legislation is addressed to and diminishes that right of possession, enjoyment of the right of possession, differently than it affects others who have an equivalent right in that - - -

DAWSON J: But it does not affect others; that is the point. They do not have any rights of that sort.

MR CASTAN: They may have enjoyment of a particular - - -

DAWSON J: They have enjoyment of rights in relation to property in general, which rights are enjoyed equally by the Aboriginal people.

MR CASTAN: Yes, but if one focuses more closely on the actual enjoyment of the right, and if we took the right to possession as the example, our law was passed which affected the right to possession of Aboriginal people but did not generally affect the right to possession of others, then it discriminates in the relevant ways, we would submit.

DAWSON J: I do not understand that.

MR CASTAN: Can I expound further on the example by imagining a case where legislation is passed for the purpose of constructing a pipeline across a large section of country and where necessarily easements are taken, or perhaps all interests in the land are acquired for the purpose of the pipeline easement, and maybe there are various ways of doing it. But if legislation is passed or steps are taken which affects all persons who have interests in land - and they may be a wide range of interests in land. Some of them may be raising licences and some of them may be permit holders, and some of them may be pastoral lease holders, and others may be fee simple owners, some of them may be people having rights of exclusive possession, others only having rights to pass, and so on. But if all persons having various interests in respect of land, including native title holders, are affected by some legislation that says that this will be acquired, or this can be done over that land, then there is no relevant discrimination.

If the legislation addresses only the rights of those who have that particular kind of right, even though they are of a kind, as Your Honour points out, which only those people have then, in our respectful submission, it is discriminatory in so far as it diminishes their rights by reference to the two races. I understand what lies behind Your Honour's question, perhaps, is the proposition that the rights only exist by reference to race. That is the logical starting point, as I have understood it, for Your Honour's proposition.

But we would respectfully submit that given that those rights do exist, and they exist in that category in respect of those people, that legislation which then selects them out by reason of race and then affects them adversely in ways that others are not affected does discriminate. Some of the examples we go to in these submissions, in our respectful submission, would illustrate that.

Can I progress through to page 95 where at paragraph 25.5, having summarised what was said in the Queensland Coast Islands Declaratory Act and a short passage from the judgment of Justices Brennan, Toohey and Gaudron in Mabo [No 1], we put the proposition that the essential operation of the Usage Act is to extinguish native title, section 7(1)(a). The extinguishment, we would respectfully submit, undeniably operates in relation to rights of a particular racial group. "Native title" is then defined as:

the rights or entitlements.....relating to land.....exercisable by Aboriginal persons in accordance with Aboriginal tradition -

that is provided in section 3(1).

We submit the arbitrariness of the extinguishment is confirmed by the express exclusion of any right to compensation for the extinguishment of native title occurring as a result of the operation of section 7(1)(a); that is clear from that section. But then it is said - and it is just, in effect, the proposition is put to me by Your Honour Justice Toohey - the extinguishment of native title without compensation might be said not to infringe the Racial Discrimination Act if the statutory rights replacing the extinguished title were equivalent to those of the common law title; section 7(2) specifically provides, and that is the provision that Your Honour Justice Toohey put to me.

Then, as we have underlined, unless this Act provides otherwise, are equivalent in extent to the rights and entitlements. We go on to point out, in 25.7, but the Usage Act does, in many respects, provide otherwise and we come to those and I will be taking the Court briefly to the passages where they are set out without necessarily spending too much time, I hope, on going through all of them. The consequence, we submit, is that the rights of traditional usage are not equivalent to those which are incidence of native title.

Then we go on to deal with a more general proposition. The Usage Act makes provision for compensation for extinguishment or impairment of native title as a consequence of the confirmation of other titles grants; that is section 5, the validation of past titles. The compensation is to be claimed, pursuant to section 28, which we will have a look at shortly, and then one is inevitably faced with two further questions: does the mere provision of compensation sufficiently remove from the extinguishment or impairment involved in the section 5 validation process the element of arbitrariness which would otherwise render the extinguishment or impairment contrary to the Racial Discrimination Act?

That inevitably raises the question: is the question of arbitrariness to be defined only in terms of compensation, as against no compensation, or does discrimination result from the fact of extinguishment or impairment even with compensation? That may be, because, as we would submit, the comprehensive of extinguishment of a particular type of title - that is native title where there is no comparable extinguishment of any other category - a lack of procedural fairness in the extinguishment which cannot be remedied by compensation or less favourable conditions upon which compensation is paid in relation to native title compared to compensation for acquisition, extinguishment or impairment of any other form of title.

We then extract, and I will not read through all of paragraph 27, the passage from the judgment in Mabo [No 1] in which the nature of the human right to own and inherit property and immunity from arbitrary deprivation of property is analysed in that judgment, and it is there set out in brief and summarised in the first paragraph that is extracted:

the arbitrary deprivation of an existing legal right which constitutes an impairment of the human rights of a person -

and then there is an analysis of the relevant Act in that case.

We then come to what we say are the conclusions that should be drawn at this general level in paragraph 28 and 29. This is the essence of what I will call the general proposition. The conclusion is that the arbitrariness of the extinguishment is to be judged by the pervasive negative effect on a racial group of the application of the provision rather than whether or not compensation is paid. Compensation does not restore rights to a native title holder. Still less does it do so if the compensation prescribed is offered on terms which in themselves are less favourable than those offered to other property holders. We deal with that separately later.

In the present context, we submit, an arbitrary deprivation of property is one without a reasonable basis or with a basis which is unfair as between citizens, and it is our submission that at the most general level to take from one section of the community its property rights without taking from the balance of the community, or indeed, other sections of the community their property rights, is a decision which is arbitrary. The replacement of that right with lesser rights, with lesser protections against extinguishment or impairment, only reinforces the arbitrariness.

So our proposition at the general level in relation to this is that there is an inherent arbitrariness about the fact that there is singled out a particular kind of title for extinguishment, notwithstanding the provision of compensation.

Put in a more stark form, one could posit a case where if legislation were passed which said that all persons of Korean origin in Australia shall not be permitted to own land in a State and shall no longer continue to own the land in a State and shall be compensated for the value of their property holdings; a provision which selected out - we move away from the question of native title and Aboriginal people - a particular group of a particular ethnic background and said, "All persons of that particular ethnic origin in Australia shall no longer be permitted to own land and their title is now extinguished and they are entitled to full compensation for the value of the land, and they are not entitled to own land any further in the State of, say, Western Australia". Such a provision, in our respectful submission, would highlight the point to an even greater degree. We would respectfully say that in respect of that particular group, to say that they are selected out as persons who are no longer allowed to own a particular form of property - let us assume it be real estate - notwithstanding that one might provide that they be compensated would be, we would respectfully submit, an arbitrary deprivation of property.

DAWSON J: But on that reasoning, if the whole of the rest of the State was, for instance, under the Torrens system and native title was the only aspect of real property that was not under the Torrens system, and the State sought to bring that in line with everything else by bringing it under the Torrens system, it would be discriminatory.

MR CASTAN: It would - - -

DAWSON J: I do not follow that.

MR CASTAN: It would only be discriminatory, Your Honour, if it constituted in some way an arbitrary deprivation or interference.

DAWSON J: If it converted one title into another form of title to bring it into line with other titles.

MR CASTAN: Yes, if it had some deprivatory effect; if it took away something by so doing; if it in some way diminished that which those people held.

DAWSON J: What if it did it with compensation where there was a diminution?

MR CASTAN: In our respectful submission, if one selects out a particular - - -

DAWSON J: I know that is what you say, but what I am suggesting is it is a very odd sort of discrimination, bringing them into line with everyone else.

MR CASTAN: Yes. We would respectfully submit that where a particular form of title or interests or rights exist to extinguish the whole of those rights, and to say, "What we're doing is we're going to extinguish the whole of those rights and we'll bring them into line with everybody else" is, in our respectful submission, arbitrary where no one else's rights are so affected.

Now, in analysing this question, we have then got a section which follows under the heading of G, which is simply included for the purpose of establishing the proposition that native title is a property right in the relevant sense that is relevant for the Racial Discrimination Act and I will not take - the proposition should read, in G on page 98, "Native Title is a property right" rather than "as", "is a property right comparable to other property rights" and then we set out some of the authorities, both from Mabo [No 2] in which there is some analysis, and then over on page 100 to 101 some of the brief reference to American and Canadian authority.

TOOHEY J: Mr Castan, I am sorry to interrupt you, but I am still having a bit of trouble with this paragraph 25 and the paragraphs that follow it. Is the discrimination said to lie in the fact that although section 7(2) purports to confer equivalent rights, putting to one side the words "unless this Act provides otherwise", in fact it fails to do so and therefore discriminates against those whose native title has been extinguished, or is the proposition that in extinguishing native title and replacing it with rights of traditional usage there is a failure to accord all those rights available to other land owners in Western Australia and therefore there is a discrimination vis-a-vis those persons? I am not sure whether I am making myself clear.

MR CASTAN: It is put at both levels, but it is put in respect of the second way Your Honour put it: it is not that we say the rights have to be the same as all other land holders because the native title rights will vary and may not amount to the same in every case as all other interests. It is rather that unless this Act provides otherwise, qualification, when analysed, leads to the conclusion that the rights of traditional usage, which are substituted, are rendered less than any other no matter what their quality. It is that the taking a right of traditional usage which, at its highest, is what we will call the complete and full incidence of native title, assuming a case in which it is made out, including all of the totality of unimpaired traditional ownership of Aboriginal land relatively untouched by the effects of government and administration, as is the case, as we would understand it in substantial areas in Western Australia.

Now, given that there exists those sorts of cases, if you like, the Murray Island type case, where the rights would be, when described and analysed in their full panoply of native title rights - we say, even in those cases the otherwise provides provisions diminish the rights considerably below those which any other person, having even the most relatively minor rights over land, can obtain. So, for instance, extinguishment of the rights of traditional usage can occur merely by a notice by the Minister, but without the procedure under the Public Works Act of notice of intention to acquire and rights of objection and the other sorts of rights.

BRENNAN J: But that is the problem, is it not? I mean, you are speaking in terms of such generality, it is almost impossible to get ones mind around it.

MR CASTAN: Yes.

BRENNAN J: Do I understand this to be your proposition, that native title, being subject to the "unless" provision, is defeasible by all the things in the Act which the unless applies to?

MR CASTAN: Yes, Your Honour.

BRENNAN J: And by reason of that defeasibility, as specified in those several sections of the Act, it is subject to a frailty which other titles in the State are not subject to?

MR CASTAN: Yes, Your Honour, and a frailty - - -

BRENNAN J: Are you saying anything different from that?

MR CASTAN: And we would submit, and a frailty which is a greater frailty than that which it would have at common law.

BRENNAN J: Greater than it would have had if the Act had not been enacted.

MR CASTAN: As if the Act had not been passed.

BRENNAN J: I understand that, but that means you have got to take us to show us where the frailty is, does it not?

MR CASTAN: Yes, and we are about to go to that.

TOOHEY J: But they are two different aspects of discrimination, are they not? Are they discrete? One is saying there has been discrimination because native title has been extinguished and replaced with lesser rights, vis-a-vis the rights that previously existed.

MR CASTAN: Yes.

TOOHEY J: And it is discrimination because native title has been extinguished and replaced with rights which are lesser than rights enjoyed by other people.

MR CASTAN: They are both.

TOOHEY J: So it is discrimination vis-a-vis others?

MR CASTAN: Yes, they are both and we deal with both. Can I take Your Honours immediately to page 101 where we deal with those matters. We then in paragraph 33, we specifically address this question of "unless this Act provides otherwise". The qualification is set out in the first sentence. We say the Act does indeed provide otherwise, to such an extent as to reach the result that they are not equivalent to the rights exercisable under native title or, at the very least, a substantially impaired version of native title. We then set out a series of specific provisions which I would seek to take Your Honours to. In paragraph 34.1, at page 102 - if I can now take Your Honours back to the Act to section 8 on page 10 of the print, Your Honours will see that the exercise of the rights of traditional usage in subsection (2) is so as:

not authorize members of an Aboriginal group to exercise (or purport to exercise) rights of traditional usage in relation to land contrary to, or in a manner inconsistent with -

(a) this Act; or

(b) the rights of holders of title;

And "title" - I took Your Honours yesterday to the definition. And:

(c) a notice issued to the Aboriginal group by the Minister under section 26(1); or

(d) a declaration made by the Supreme Court under section 10 -

and that takes us, as we say in paragraph 34.1, to the limits imposed by the Act itself. They are set out at sections 18, 19, 20 and 21. I will come to those but can I firstly go to section 26 so that Your Honours can see the way in which extinguishment can occur.

Your Honours will see that:

The Minister may, by notice in writing given or published in the prescribed manner -

(a) extinguish rights of traditional usage; or

(b) suspend rights of traditional usage for such period as is specified in the notice,

if the Minister considers the extinguishment or suspension to be necessary for any purpose for which land could be taken or resumed compulsorily under any written law.

The written laws, as we have set them out in paragraph 34.2.2, are the Public Works Act and the Heritage of Western Australia Act and we say that section 26(2) applies to the process of ministerial extinguishment or suspension in section 26(1), a special procedure for rights of traditional usage, by sections 33F to 33J.

DEANE J: Mr Castan, do you not really have to identify the assumptions on which your argument is based? What would you say was the situation under Mabo if the Crown wanted to make a grant of land for a public purpose or to dedicate land for a public purpose such as that to which section 26(1) refers? As I understand the effect of the decision, it would be that it could do it without compensation.

MR CASTAN: We would respectfully submit that if there are provisions in the Public Works Act which provide that interest in land may be taken in certain ways, that it would be discriminatory for the exercise of the power to take land for a purpose under the Public Works Act and to acquire or extinguish native title in ways that did not apply to the native title interests, the equivalent provisions that are applicable under the Public Works Act. Whatever might be the general position about non-payment of compensation, if there is a regime in existence which provides under the Public Works Act for - - -

DEANE J: But does that really answer it? If under Mabo native title is vulnerable to what is done by the Crown and vulnerable to the extent of no compensation, do you not have to get some other basis for this argument; for example, the difficult question of whether the Racial Discrimination Act had anything to say in terms of the extinction of a particular title by the Crown exercising its rights in relation to that title?

MR CASTAN: Yes, but that is exactly as I was putting it, Your Honour, if there exists a regime for the acquisition of interests in land under the Public Works Act and that is in operation, and it provides for notifications and for various procedures and for acquisition and for compensation, and it sets up a regime for those things then the exercise by the Crown of its undoubted power to extinguish native title in ways which do not provide any of those procedures, compensation, any of the mechanisms that are provided to those whose interests in land are acquired and which ignores those kinds of procedures in relation to native title holders would, in our respectful submission, be discriminatory.

DAWSON J: But, then you are trying to have your cake and eat it because you are denying an inherent characteristic of native title which is that it may be brought to an end in a particular way. It is not the same as other titles and, therefore, it is not a differential treatment it is just a characteristic of the title.

MR CASTAN: Well, in our respectful submission, it is not a characteristic of the title that it can be - - -

DAWSON J: At common law.

MR CASTAN: Well, in our respectful submission, assuming that the common law position is that the native title may be extinguished without compensation - the Crown does not become liable for compensation, it is not a case of saying it is a characteristic, it is a question of liability that arises.

DEANE J: But, is not the answer you must give - if there is an answer - that the Racial Discrimination Act operates not only at the level you have it operating, but that it operated at an anterior level and, in effect, made extinguishment of native title by the Crown without compensation in accordance with the common law no longer permissible in that that would seem to be the assumption underlying section 5 of this Act, for example.

MR CASTAN: Yes and, Your Honour, if there be a regime in which other interests in land are the subject of notice, are the subject of compensation, are the subject of rights of objection and the like under, say, a Public Works Act regime then, in our respectful submission, that is precisely the work that the Racial Discrimination Act does.

DEANE J: I am not arguing against you one way or the other. What I am simply putting to you is that I have not seen anything that seemed to me to be addressed to the anterior working of the Racial Discrimination Act, and that seems to me to be a very difficult question, and if your argument is based on an assumption that without the Racial Discrimination Act having some operation native title could not be destroyed at the whim of the Crown, it is an assumption that I am just not prepared to make without some argument about it.

MR CASTAN: No, no, we do not need to go to a point that deals with the situation of what might be the case concerning extinguishment of native title in the absence of some other, so to speak, regime, or some other equivalent rights. We do not need to go to it in the abstract, in the sense that perhaps is implicit in Your Honours expression of an anterior assumption. We rather go to it in, what I would terms, the practical operational sense, if there be in existence, a regime. If there be in existence a set of statutes that provide that property interests are entitled to be dealt with in a certain way then, in our respectful submission, one examines the operation of an exercise of the powers of the Crown to extinguish native title, not in its pristine abstract way, as it might be the case in the absence of the Racial Discrimination Act. If we compared the position, so to speak, pre-1975 and post-1975, it might be said it would not matter what regime was applicable in relation to compensation for taking of other people's land or other kinds of interests in land, prior to 1975. The native title can be taken, and if it is taken, there is no right to compensation.

DEANE J: Can I just briefly put to you my problem in relation to that? It seems to me that if you put the Racial Discrimination Act aside, at the anterior level, and if you put the Commonwealth Act aside, that what you have here, as a matter of substance, is a conversion of a common law title that could be extinguished at any time by the Crown without compensation into a statutory title which can only be extinguished pursuant to a procedure under which the Crown must pay compensation. Well now, if that is discrimination under the Racial Discrimination Act, so be it, but it would seem to me that, putting everything else aside, it confers a much more advantageous position.

MR CASTAN: Well, we would respectfully submit that one cannot ignore - that as put is fine, but one cannot ignore the existence of the other sorts of provisions that are provided to people - - -

DEANE J: I should have qualified what I said by saying I would exclude from what I said, section 5, where your argument seems to me to be at a different level and I would exclude provisions such as limiting rights to water and the kind, which I quite frankly have not understood yet, but I was just putting it to you as a general proposition.

MR CASTAN: Yes, but Your Honour's general proposition assumes that one does not have to look at what the position is in relation to persons of other races. One looks at this, so to speak, in the abstract and, put in the abstract, and in the absence of any provisions that exist in the law in relation to what might be provided to others, as Your Honour has put it, it might well appear to be the case. Of course, if one put to one side and ignored the existence of, say, the Public Works Act or other sorts of legislation, it may well be that one would say, in the absence of anything else, there is a new regime that is different but provides something that otherwise might not be available.

In our respectful submission, that is not the world in which this legislation comes into existence, and the operation of the Racial Discrimination Act has to operate by reference to the impairment of rights on a racial basis or discrimination under section 10, and it relates to the provisions of a law and, in particular, if one goes back to section 10, it speaks in terms of not abstract issues about whether native title is better or worse than it was at some earlier stage, but whether persons of particular race do not enjoy a right that is enjoyed by persons of another race.

So, while one can abstractly investigate the issue in the way that Your Honour has put it to me, the inquiry cannot ignore the reality of the rights that otherwise exist. The question to be addressed, ultimately, when one comes to section 10, is have we got a law by reason of which persons of a particular race do not enjoy a right that is enjoyed by persons of another race. So that we ultimately are forced, in our respectful submission, to analyse this by reference to the operation of the system of, for instance, the Public Works Act or the Conservation and Land Management Act that deals with rights to access to public lands and so on, and to see what that regime is and see whether, in introducing this system, the way in which persons who are dealt with under this system have been dealt with in ways that deprive people or ensure that they do not enjoy a right.

It may be necessary to adapt the right to meet the nature of the particular kind of interests in land, just as perhaps under the Public Works Act one has to adapt the procedures to deal differently with a person who has got perhaps a grazing licence as against someone who has a fee simple. That does not mean that all persons having this interest have to have precisely the same content of all of the matters that are dealt with in the Public Works Act depending on whether or not it is a relevant and logical and appropriately adapted distinction.

But if there is, for instance, to take a simple example that we come to in these written submissions, a provision that says that all persons in Western Australia are entitled to receive notice and have a right of objection and to be heard in relation to an acquisition that results in the entire extinguishment of their interest in the land whatever it be; and in relation to persons who have in this case, rather than native title, rights of traditional usage, persons who have those sorts of rights are not to have that. They get a notice which says, "Your rights are now extinguished".

We would respectfully submit that one can then say of this Act that whatever else it does, it has the effect that persons of that particular race in relation to their native title interests, are not enjoying the right. The relevant right is the arbitrary deprivation of property, and if there is a system for non-arbitrary deprivation operating in respect of all other interests, but not operating in relation to these interests, then, in our respectful submission, it does breach section 10.

BRENNAN J: You seem to me to be missing the point, if I understand it correctly, Justice Deane is making to you. Do you not have to go to the extent of saying that the effect of the Racial Discrimination Act is to clothe native title with the same protection as the protection given to other landholders?

MR CASTAN: Yes, Your Honour, perhaps I have not expressed it - - -

BRENNAN J: So that the common law defeasibility of native title is clothed with the same kind of indefeasibility as that which protects the holders of other kinds of title?

MR CASTAN: Yes, we would respectfully adopt that proposition, but we would say it is not necessary. We would put it as an alternative proposition. It is not necessary to go that far. It is not necessary to go so far as to say that necessarily the effect of the Racial Discrimination Act is to render all native title indefeasible.

What we would respectfully submit is it is to render it subject to the same kinds of protections that are otherwise provided, in particular by provisions of a law, assuming it means a statute, by statutory provisions that provide express protections in relation to persons holding other interests in land. And in so far as that means - - -

BRENNAN J: If you delete the word "indefeasible" and say that it can be "extinguished" only by the adoption of the same procedures as that which extinguishes other titles.

MR CASTAN: Yes, with respect, we would respectfully adopt that as the underlying premise that lies behind that which we are putting, and we would respectfully say that what the Racial Discrimination Act says is if there be methods of extinguishment such as the example I have given, the Public Works Act then, as a result of the Racial Discrimination Act the native title holders are entitled to that mechanism, that protection, that is otherwise provided to other title holders. And that is why, in response to Your Honour Justice Deane, while acceding to the general hypothetical proposition, it has been respectfully put that one must look at this in the context of the relevant provisions that exist in the law generally and then see whether or not the same rights are provided in respect of this particular set of property rights and, in our respectful submission, given that there are a particular set of rights, it is only then a matter of saying, as we have submitted in our submissions, they fall in the category, as we would respectfully submit, of property rights - - -

DAWSON J: But property rights can differ enormously .....they are brought to..... Talking about native title, no-one has deigned to say what it is, and if it were no more, for instance, than a usufructuary right, then different treatment may be well justified.

MR CASTAN: Yes, and if the different treatment were - if the legislation was appropriately adapted to deal with it differently, if the legislation, for instance, said, "Well, we amend the Public Works Act so as to provide a new regime relating to native title interests and in respect of usufructuary rights there shall be the following procedures, but in respect of native title rights that include the right of exclusive possession there shall be the following procedures", in other words, if the legislation sought to do that and sought to give those interests and those rights, the exercise of which are similar to or analogous to the kinds of rights that people have who own interests such as a fee simple or a leasehold or other familiar rights, then one could not say of the person who held those rights that they do not enjoy it to the same extent.

But if there is a new regime introduced which simply says, "Well, in respect of these rights there will be no notice at all and there will be no provision for objection while in respect of all other kinds of interests there will be, without regard to the different levels at which those rights may operate" then, in our respectful submission, it is not achieving that which Your Honour puts may be capable of being achieved. That is to say to treat the differences in the relevantly different way may well be possible but, in our respectful submission, to treat the difference by simply saying, "This group of rights are rights in respect of which there won't be any notice whatsoever, while all other persons holding interest in land of any kind, even down to the most frail rights that a person might have, perhaps an annual permit to go on land, will be entitled to notice and will be entitled to the procedures that are otherwise provided." That kind of distinction, in our respectful submission, does fall foul of section 10 and, in our respectful submission, that is exactly what has happened here.

What has happened here is that a new provision has been introduced into the Public Works Act and the application does, in our respectful submission, operate in a way that creates that - - -

DAWSON J: I do not understand the application of these particular sections. What is it that does not apply that does apply in other cases?

MR CASTAN: In substance it is the absence of any provision for notice. What happens in - - -

DAWSON J: But section 26 does provide the notice.

MR CASTAN: Yes, but it is a notice of extinguishment; it is not a notice of intention to extinguish. It is the extinguishment; the notice is the extinguishment. Could I take Your Honours to the bottom of page 108 where we have dealt with this in explicit terms. We have set this out as manifesting the problem. At 38.1 we point out that the Public Works Act requires identification of individual parcels of land required for specific public works and resumptions are carried out on that basis, and we give the sections.

The Western Australian Act extinguishes the native title affecting all and any land which may have been subject to native title. Section 17(2)(c)(ii) of the Public Works Act gives the landholder from whom it is intended to take or resume land notice - and this is the relevant provision - notice of the intention to take or resume land and of the fact of taking or resumption. No such notice was given in relation to the extinguishment of native title affected by section 5, 7 and so on, and none is provided for in respect of any notice to extinguish pursuant to section 26 because 26 is not a notice of intention. Then we go on to say that the Public Works Act provides the landholder with the right to object to a resumption and have the objection considered. No such provision is contained in either 5 or 7 or 26.

Then we get to the question of compensation. We have got a further detailed analysis of that in another paragraph which I will come to. The Public Works Act provides compensation on the basis of the value of the land in section 63. The Usage Act provides compensation for loss of or interference with the entitlement to exercise the affected rights. It is a significantly different basis of calculation. It presumes that the rights of traditional usage are not part of a title to land and would not comprise a title to land but are mere rights analogous to the incidence of a licence.

It may be desirable if I take Your Honours to section 38 at this stage. The way in which 38 is framed is to provide that first of all in 38(1)(a):

regard is to be had primarily to what constitutes fair compensation for actual loss of or interference with the entitlement to exercise the affected rights; and

(b) regard is to be had to any form of compensation that the Crown.....has already provided.....

(c) the maximum amount of compensation that can be awarded is the amount that could have been determined under the Public Works Act if the land had been held under or subject to a title and had been taken or resumed compulsorily; and

(d) regard is not to be had to any purpose for which the land is to be used following the extinguishment.....

(e) compensation is not to be awarded in respect of any minerals or petroleum.....

(f) compensation is not to be awarded for loss or interference for which compensation cannot be assessed according to common law principles in monetary terms; and

(g) .....to be assessed according to values as at the commencement of Parts 2 and 3; and

(h) despite the preceding paragraphs, an additional amount of compensation may also be awarded for loss of or interference with special attachment to the land or spiritual or cultural connection with the land but this amount is not to exceed 20% of the amount that would be assessable -

In our respectful submission, this is a classic case of treating the native title in an unlike way and in a way that is not appropriate to the relevant difference. The way in which it is expressed in 38(1)(c) is that the maximum that can be awarded is the amount that could have been determined under the Public Works Act 1902 . In our respectful submission, that does not provide for an appropriate mechanism for compensation in relation to the native title interest or the right of usage that is deprived if the right of traditional usage is itself compensible to some greater degree.

In other words, when we have provisions in a Public Works Act that provides for provisions such as the determination of value of land according to valuer-generals or other determinations based on the willing seller and the available buyer, willing but not anxious buyer, those sorts of principles, in our respectful submission, may well be - depending on the circumstance of the deprivation of the native title holder or the traditional use holder under this Act - entirely arbitrary and inappropriate because the value of the land on the market-place, applying what we will call the ordinary principles, may be utterly irrelevant to the loss that is suffered, and the whole notion of what underlies provisions such as the ordinary compensation provisions is that in respect of interests in land one compensates by reference to land based on the existence of a market for land. That, in turn, assumes the nature of land as a marketable commodity, as something that operates in a market and that we value, according to what the willing buyers and sellers seek to have.

But, of course, the nature of the interests of the native title holders may operate and what they lose may need to be valued in order to give them an equivalent compensation, something that is totally unrelated to the operation of the market value. It may be considerably less and this legislation copes with that by saying in 38(1)(a):

primarily.....actual loss of or interference with the entitlement to exercise -

their rights. That, so far as it goes, does not raise a problem. The problem is that if the maximum is then geared to the principles under the Public Works Act, the ordinary principles of compensation for market value and dislocation and so on, that one may come up with nothing like what is the relevant compensation for the relevant loss.

DAWSON J: But, where is the discrimination in that?

MR CASTAN: Well, the discrimination, Your Honour, is that for those in respect of whom land is a marketable commodity, the market and some dislocation factor and the other sorts of things that one finds in these provisions, is the appropriate and relevant - - -

DAWSON J: We are talking in terms of money here, and if you say that no one will get more compensation than a certain maximum amount, that is treating everyone equally. Even if you determine that amount by reference to the market value, it is just setting a ceiling, and it is the same ceiling for everyone. Where is the discrimination?

MR CASTAN: Your Honour, that ceiling is not set, in our respectful submission, merely by some arbitrary provision.

DAWSON J: You may disagree with the way in which the ceiling is set. You may say it operates in a way that does not take into account a number of things, you may be quite right in saying that, but it is certainly not discriminatory because when we are talking of compensation we are talking of money, and to set a maximum in money terms is not to discriminate if it is set for everyone.

MR CASTAN: That, we would respectfully submit, may well be so if the money was set, not by reference to some criterion that was applicable to the loss that was - - -

DAWSON J: It does not matter how the ceiling is set, in fact, if it is the same ceiling for everyone.

MR CASTAN: In our respectful submission, one would have to - - -

DAWSON J: So far as discrimination is concerned. You may say that it is a wrong ceiling and it does not adequately do all sorts of things but it is not discrimination when we are talking about compensation which necessarily is in money terms.

MR CASTAN: Our answer to that would simply be to say the principles on which the ceiling is set are themselves discriminatory if they take market value and the like considerations as the only criteria as the means of calculating the loss to the person who has, in effect, been deprived of something. If the ceiling was set, not by reference to any such criteria but by reference to saying, "Regardless of what anybody is deprived of in land, no person shall receive more than $500 for their land", that would be non-discriminatory, in our respectful submission. It would be a law which did not seek to compensate those who are non-Aboriginal persons by reference to the loss which they have suffered.

DAWSON J: It does say that, in effect. It says that no one shall recover more for the loss of these lesser interests than a person would recover for the total loss of the land.

MR CASTAN: We simply point out that 38(1)(a) goes some of the way towards meeting this concern because it does acknowledge that it should be at what we would respectfully submit should be the entire principle that underlies the question of compensation, which is as it is put, "fair compensation for the actual loss of or interference with the entitlement". Perhaps another version of just terms in the State context.

That is, we would respectfully submit, what underlies provisions such as Public Works Act provisions. They are designed to achieve fair compensation. But if one then says, "Fair compensation but subject to the limits that operate in relation to a form of land and a form of valuation, a conceptual understanding of what land is about", that sets a limit that then ignores what is the loss to the relevant land holder, then, in our respectful submission, it discriminates. And one can see the arbitrary nature of it by the reference in subsection (h) on page 29 to 20 per cent - an additional amount of 20 per cent of what we will call the market value plus dislocation; the amount under the Public Works Act.

DEANE J: But assume against yourself - and I know it is an assumption that you would not make - that the Racial Discrimination Act has said nothing at all about the incidence of common law native title, which means that it could be extinguished by the Crown without compensation, if that be the case it would be a strange result if, on your argument, the Racial Discrimination Act struck down the compensation provisions of this Act on the basis that they were open to some criticism, leaving a situation where native title holders were entitled to no compensation at all. Again, it just seems to me that your argument starts up in the air unless one first addresses the question of what effect, if any, did the Racial Discrimination Act have on native title before this Act was enacted.

MR CASTAN: In our respectful submission - and I am content to answer Your Honour's question and I will do so in a second - but we would respectfully submit that the question as Your Honour first posed it, the anterior question, "What effect did the Racial Discrimination Act have on native title", put in the abstract, in our respectful submission, in a sense cannot be answered.

DEANE J: What relevant effect did it have on it?

MR CASTAN: If I can now go on to answer Your Honour's question - and I say that because one looks to the operation of the Racial Discrimination Act in respect of particular rights and must examine whether or not, in relation to section 10, the native title rights, in relation to a particular question, a particular issue, the holders of those persons do not enjoy rights. So one must look at some rights that are held by other persons. So there is an inherent problem, if I may say so with respect, in Your Honours posing the question as a sort of abstract question of "What effect did the Racial Discrimination Act have on native title rights?"

But having said that, can I answer the question of what effect did it have by saying that it rendered native title rights subject to the protection that persons who have those rights are entitled to enjoy rights in respect of property that are enjoyed where such rights are conferred by persons of other races. And the question of how that works out in practice will then be a matter of the practical operation of particular provisions of the law. If there be a State where there is a law which provides for the compulsory acquisition, expropriation of property, without any compensation whatsoever, if such a situation arises in a State, then it may be that the effect of the Racial Discrimination Act in so far as those holders of Native Title Act are concerned, are to leave them in a position where the title may continue to be acquired by the State in exactly the way in which it was expressed at common law in the way in which Your Honours put it to me. But one does not answer the question in the abstract because that is not the case.

There are laws out there that govern these various ways in which governments can act in relation to interest rights in land and rights short of being interests in land. Because there are such laws the effect, to answer Your Honour's anterior question, is that native title is now subject to the protection of being entitled to the procedural and the other sorts of protections that exist in relation to persons having interests that are relevantly comparable.

I understand what Your Honour Justice Dawson has put to me that there is none that are relevantly comparable in the sense that would make this work. But if one accepts that there are, then that is the answer to Your Honour's question. There is now the protection, being the right to have the appropriate level of protection that is offered by laws that protect the interests of others.

So that it does not exist entirely in the abstract and the answer to Your Honour's question as the anterior question would be, in that hypothetical world in which there was the capacity to arbitrarily deprive persons of property without any compensation, native title rights would be not much helped in that respect by the Racial Discrimination Act. In the world in which we do live in which all States in one way or another have some sorts of protections, then one must look to the way in which those protections work and, in our respectful submission, native title holders, as a result of the Racial Discrimination Act, are entitled to those sorts of protections or the relevant equivalent when it comes to extinguishment of them.

So that is why we say that while one can ask that anterior question, as Your Honour has posed it to me, ultimately one is nevertheless forced back to look at particular provisions, in this case of the relevant Western Australian legislation, which we have analysed in some detail in these submissions, we have set it all out and, in our submission, that is the appropriate basis on which to analyse it. Now, we have done that under a number of headings.

BRENNAN J: Do we have a copy of the Public Works Act or the Heritage of Western Australia Act?

MR CASTAN: I had understood it was in the Western Australian materials.

BRENNAN J: It may well be, I do not know.

MR CASTAN: Yes, I am told it is in the Western Australian materials, the last volume of - certainly I will have that checked, Your Honours. I had thought that it was there in the - - -

MASON CJ: Well you can let us have information about that later on.

MR CASTAN: Yes, we will in due course provide it to Your Honours. If I can now go back to the submissions at page 102 and over to page 103 - I think I had taken Your Honours to - and then can I take Your Honours to paragraph 34.3, which addresses the provisions of section 17 of the Western Australian Usage Act. It if perhaps desirable to address Your Honours concerning section 17 to 22, Division 3, together. Those provisions provide, in section 17, that:

"general laws" means written laws.....Unless another written law expressly states otherwise, the existence, or possible existence, of rights of traditional usage in relation to land does not affect the application of general laws that may be the subject of rights of traditional usage, or to Aboriginal groups whose members may be entitled to exercise such rights.

Section 18 is a limited protection:

Despite section 19, members of an Aboriginal group exercising rights of traditional usage in relation to land may, subject to sections 8(2) and 17, take and use food, water and materials from the land for sustenance or for purposes relating to Aboriginal tradition.

Section 19:

Rights of traditional usage in relation to land do not confer ownership of, or control over, minerals, petroleum, forest produce or water on or under the land.

And section 20:

The exercise of rights of traditional usage in relation to land is subject to, and does not restrict or impair the exercise of, the rights of the holder of a title to the land.

And then section 22:

If the effect of this Division, other than section 17, is to extinguish or impair a right or entitlement that was an incident of native title that existed before the commencement of section 7, a claim for compensation may be made -

Now, we submit in relation to that, at paragraph 34.3 after setting out section 17, that while the private property rights of title holders, other than native title holders, have the usual protections accorded to private land, and we refer to the Mining Act, land subject to the rights of traditional usage is treated as though it was public land impacted by all the restraints of use imposed upon such land by statute law.

So that the way in which section 17 works is to turn native title land, whatever be the level of the native title interest in it - and one must assume that this also applies to land which is the equivalent of the rights of the Meriam people as declared in Mabo [No 2]. Then, in paragraph 34.4, we address section 18, which makes the rights of traditional usage subject to the operation of sections 8(2) and 17 for the the purpose of exercising the right to "take and use food, water and materials from the land for sustenance" and thus, as it is put at paragraph 34.4, the right of people to sustain themselves from land is relegated to all other title holders' rights of any kind, the use of minerals, petroleum and forest products, and public access to beaches, foreshores and so on.

Now, we particularly address attention to the limited preservation that is contained in section 19, in particular, rights of traditional usage do not confer ownership of or control over minerals, petroleum, forest produce or water but persons, by reason of section 18, may "take and use food, water and materials." To give an example of the way in which this works: the effect of sections 17, 18 and 19 is that while persons holding rights of traditional usage may for instance still have access to water for the purpose of drinking the water, and using the water for purposes of Aboriginal traditional, they may not stop others from, for instance, swimming in what is otherwise a water-hole that is used for either traditional purposes or for consumption.

So their control that they would otherwise have if they had native title or if their rights of traditional usage truly amounted to the totality of their native title, is cut down by section 19 to access only for the purposes relating to taking and using it for sustenance or purposes of tradition; their capacity to exclude others in appropriate circumstances, which might otherwise exist as native title holders, is eliminated by this section, and that is explicitly referred to at page 104 in paragraph 34.5.2.

There is a more detailed analysis of this question of water and a comparison with the rights of other persons and the way in which they are dealt with in relation to water at book 4, page 87, and I would briefly take Your Honours to that. That is our reply on these matters in which there is a response concerning these matters. On page 87 where at paragraph 13.9.3 it is put:

The prohibition on "ownership" and "control" of water under the WA Usage Act would only be effective to equate RTU to fee simple title in so far as those terms could be read down to leave the native title holder, with the same riparian rights of any other owner or occupier of land.

The Rights in Water and Irrigation Act, 1914 ("RWI Act") s8 vests "control" of water in the Crown, but provides that it "shall not operate so as to prevent any person from (taking water) if the flow of water in any water course or the amount of water is not sensibly diminished" That qualification, in s.8(2), is not recited in s19 of the WA Usage Act, and so does not apply to RTU.

In addition, s9 of the RWI Act gives to the owner or occupier of land alienated from the Crown the right to take water for domestic use, watering stock and irrigating a garden. No such right is preserved for, or given to, the holders of RTU -

notwithstanding, we might add by way of parenthesis, that such rights may have existed as one of the components of the native title that has been extinguished.

DEANE J: Is there a definition of "water" in that Act, because on what is put there, it would mean the landowner in Western Australia did not control the water in his own dams?

MR CASTAN: There is no definition of "water". There is a definition of "water course", Your Honour, which describes a "water course" as -

a river, stream or creek in which water flows in a natural channel, whether permanently or intermittently, and includes any natural collection of water into, through or out of which any such river, stream or creek so flows.

DEANE J: I have been wondering how section 19 operates in relation to dams or accumulation of water on native land, or the water in your swimming pool.

MR CASTAN: The answer is that there is no ownership, and it may only be used by reason of the limited protection provided in section 18. There is the right only to take and use the water -

for sustenance or for purposes relating to Aboriginal tradition.

TOOHEY J: There may be something in the Land Act - I am not saying there is, but there may be something in the Land Act itself, Mr Castan, that throws light upon the matter that Justice Deane is asking you about.

MR CASTAN: Yes, we can have a look at it. I am not able to assist Your Honour further on that at this stage.

Section 20 is the next section that is worthy of examination. Section 20 is important because the way in which it is expressed is to make:

The exercise of rights of traditional usage in relation to land subject to.....the rights of the holder of a title to the land.

Section 20 explicitly makes the rights of a holder of traditional usage subject to all of the rights of any interest of any kind and effectively eliminates any notion of exclusive possession. It also effectively eliminates any possibility, together with section 23(c), of co-existence; but I will come to section 23 shortly.

Perhaps I should just progress to paragraph 34.7.2 where we submit that the result of these provisions is that rights of traditional usage are classified as a mere subordinate use of public land. They are made subordinate to the general public's interest and right to freedom of movement. It denied the character of a private property right sufficient to constitute an exception to the public right to freedom of movement.

DAWSON J: Mr Castan, I have the same difficulty. I do not know what constitutes native title in general or in particular cases. It may be, as I perceive, that native title may not confer exclusive possession. There may be a native title which is vested in different people over the same land for different purposes. To talk in generalities here is practically impossible.

MR CASTAN: In our respectful submission, Your Honour, what has happened here is that this legislation has dealt with all native title and converted it into rights of traditional usage without discriminating between the various rights that may go - - -

DAWSON J: Perhaps it is right in doing so; perhaps it is wrong in doing so. How do I know?

MR CASTAN: Your Honour, in the decision of this Court in Mabo [No 2], this Court held that the Meriam people on Murray Island had the right of exclusive possession in relation to their island. So we know that it is possible that native title rights may amount to that. It is sufficient to know that they may amount to that and it is clear from the analysis in the judgments that it may amount to considerably less than that and various possibilities in between, according to the traditions and customs and actual ongoing usage of particular groups and that will be determined in particular cases. But if one knows that there is a, so to speak, high limit, what the upper limit is, and that it includes the right to exclusive possession - - -

DAWSON J: The Meriam people were in a unique position in comparison with people in Australia and it may be that those rights of that type did not exist in Western Australia, for all I know.

DAWSON J: First of all, we would respectfully submit, they are not in a unique position, as a matter of fact, as will be demonstrated in the longer run as cases such as those of clients for whom I now appear come to be dealt with in the various jurisdictions in which their litigation is currently pending. But, more pertinently, the assumption on which the Court must proceed, and the assumption on which this legislation proceeds, is that there may well be such cases.

DAWSON J: There may well not be, and that is not a basis on which to decide the validity of the legislation. We do not know the answer.

MR CASTAN: In our respectful submission, given that one knows that native title can amount to that, the Court, in our respectful submission, dealing with legislation, purports to deal with the totality of native title.

DAWSON J: It is dealing with land in Western Australia. It may not exist in that form in Western Australia.

MR CASTAN: In our respectful submission, it was entirely open to the legislature of Western Australia to make some differential kinds of provisions - - -

DAWSON J: But it chose not to do so.

MR CASTAN: Yes, it did and, having done so, it is then necessary in considering the validity of the legislation to proceed upon the basis that when it speaks of native title rights having been dealt with in a particular way and - - -

DAWSON J: Mr Castan, I know of no procedure by which you can determine the validity of legislation on a factual basis which may or may not exist.

MR CASTAN: In our respectful submission, Your Honour, the only factual basis that is needed is the legal basis that has been laid down in Mabo [No 2]. The fact of the matter is that native title has been held, at least in one case, to amount to a certain bundle of rights and this legislation explicitly in its own terms says it is dealing with that situation. It says so in its preamble. It says that native title may exist and it is the native title referred to in this Court's decision. So one does not need to go beyond the Act itself and, in our respectful submission, it is appropriate to deal with this Act upon the basis that it is dealing with the totality of native title as it has been so held because that is why the legislation is said to have been passed. They were not intending to deal with some lesser set of rights.

The concern is expressed to be that it may well exist or does in fact exist. So that, in our respectful submission, the Court can and should and, in fact, in our respectful submission, must, given the nature of this legislation, proceed on the basis, so to speak, as on a demurrer, that the rights do exist and to treat them as though existing at the highest possible level because that is the level at which one must then examine the matter. The alternative to that is that one is left with the situation in which the matter would have to be deferred over to the determination of facts in a particular case. In our respectful submission, it is not necessary to do that, given the framework of the Act itself. But I should indicate to Your Honours that it is our contention that in the particular cases that are in the Supreme Court and in the tribunal currently in relation to the clients for whom we now appear, it is the submission that the rights are of exactly that magnitude and they are so pleaded, as I am reminded.

Can I go over to the top of page 105. It is there put that the combined effect of these sections that I have just addressed Your Honours on is to impair all rights to use and enjoy the resources of the land, to extinguish any right to control their use or exploitation of others and that the result of all that effectively is to reduce the native title to the permissive occupancy in the terms that Your Honour Justice Dawson expounded the doctrine in Mabo [No 2] at page 175. Then we address the provision for compensation in section 22 which effectively links up to section 28.

We then turn to section 23 which provides for extinguishment. To some extent section 23 merely reflects the common law position; that is to say:

Rights of traditional usage.....are declared to be extinguished if -

legislative or executive action clearly and plainly intended to extinguish the rights in (a). We do not have anything to say about that. Then it speaks of:

(b) the grant of freehold title or leasehold title (including pastoral leases) in relation to the land under any written law relating to land grants.....except to the extent that the grant expressly reserves any right of traditional usage -

That opens up the complex question of whether this goes beyond what might be said to be the common law position as currently standing. The third, (c), in our respectful submission, manifestly seeks to extinguish the rights of traditional usage in a circumstance in which the native title rights would not be extinguished. What section 23(c) does is to change the position as it would be if these were native title rights, in which case there would be, as we would submit, a coexistence between certain kinds of mining interests and the ongoing native title and to provide that the right of traditional usage is extinguished.

Of course, 23(c) also expressly discriminates between the position of the holder of the right of traditional usage under this Act and the holder of other interests in land. Typically mining leases over farming land, over leased land of various kinds are granted and they operate temporarily and the owner of the fee simple or the other relevant interest in land continues to hold that interest subject to the mining interest which then on its expiry, the land reverts and continues to be exclusively available to the fee simple holder or the lease holder.

Here there is an express provision that the grant of a lease in relation to mining extinguishes all rights of traditional usage. So there is express variation, if we can put it that way, of what would be, as we would contend, the common law position, and an express discrimination as between the owners of other interests in land and native title holders in land, which is not geared to the inherent nature of the right, or which is not, as we would say, perhaps appropriately adapted to deal with the difference between the respective rights. And (d), we say, more reflects what would be the common law position:

dedication.....of the land for public or other works or purposes to the extent that the dedication, reservation or use is inconsistent with the continued exercise of the rights -

and surrender, abandonment, loss of traditional connection, and so on, raised no questions. But our general proposition is put at 34.9. Although 23 extinguishes the rights upon the happening of specified terms, in practical terms we say it will have little operation because there is no true rights remaining.

Section 24 provides authority to impair, and we do not have anything to say about that. But we do now address attention to section 27, which limits the application of the rules of natural justice. If I can take Your Honours to section 27 on page 19, it is expressed:

To the extent to which the application of the rules known as the rules of natural justice.....is not provided for by this Act or any other written law, regulations may be made providing for the manner in which those rules are to be applied in relation to acts, matters and things that may extinguish, suspend or impair rights of traditional usage.

Then it is provided in 27(3):

A title to land -

that is to say, any other interest in land granted by the Crown -

to which this subsection applies, or any act, matter or thing done.....is not invalid or subject to any defect on the grounds that, when the grant was made, the rules referred to in subsection (1) were not applied, or are alleged not to have been applied, in respect of a person who was entitled, or may have been entitled, to exercise rights of traditional usage in relation to that land.

So, effectively, we would respectfully submit, that the effect of section 27(3) is to result in an inconsistency with section 10 of the Racial Discrimination Act in that it denies to persons who hold the rights of traditional usage the benefit of the ordinary rules of procedural fairness in a situation in which there are no other persons holding interests in land who suffer that denial or that specific set of provisions.

The denial, or limitation, of the rules of natural justice is not made by reference to some - and again, there is no problem about statutes which limit the application of the rules of natural justice ordinarily, but here where they are geared solely to the dealings with the right of traditional usage and not by reference to some circumstance independently of that classification, in our respectful submission, they are discriminatory on the grounds of race in that they deprive those holders of rights which other persons have.

Again, one can posit the hypothetical, that if it were necessary to limit the rules of natural justice in relation to some State project, and so all persons who were affected by that State project were so limited, that, of course, would not be subject to this complaint. This is specifically geared to these rights and no other kinds of rights in relation to land.

I think I have dealt with the compensation provisions in section 38- Turning to page 106 of our submissions, and paragraph 37.2, where the question of the procedures under compulsory acquisition are dealt with and, as it is put at 37.3 at the foot of page 106, the comparison is not a favourable one. We point out at the top of page 107 no other form of title in the state of Western Australia has been wholly extinguished by a single statute, as native title purports to be under the W A Usage Act.

We point out in 37.3.2 compulsory acquisition generally is only authorised for a public purpose (a) under the Public Works Act, section 10, land may be taken or resumed only to undertake, construct or provide any public works; and (b) Under the Heritage of Western Australia Act 1990 , section 73, land may be taken or resumed here it appears to the Minister .that the continued existence of that place in a condition suitable to effect conservation of its heritage value is in jeopardy.

Now, we point out in 37.3.3 that the various extinguishments and impairments of native title and rights of traditional usage proposed under the WA Usage Act that I have drawn attention to are not identified or identifiable as giving effect to a public purpose.

There is no public purpose identified, whereas other interests in land may only be acquired or resumed for the various public purposes or under the Heritage Act 1993 and, in our respectful submission, we put this at the foot of page 107 that there is no fair or reasonable justification, no appropriate principles that enable on to determine why there should be a special regime in relation to extinguishment or impairment of native title in addition to the procedures for compulsory acquisition.

One is tempted to ask, given that there are procedures generally for compulsory acquisition of interests, why should these interests be subjected to the additional or any other provisions than those which generally apply to interests in land, and to do so in the absence of any rational explanation is, in our respectful submission, to fall fowl of the provisions of section 10 of the Racial Discrimination Act.

We point out at page 108, in paragraph 37.3.5, that the Land Titles and Traditional Usage Act does not specifically justify the extinguishment of native title.

There is no basis on which it is sought to say that there is a reason why this interest should be extinguished or subject to extinguishment arbitrarily, without the kinds of restrictions that apply in the ordinary provisions of the Public Works Act.

I think I have dealt with paragraph 38 dealing with the question of the operation of the Public Works Act. Can I then come to the absence of equal treatment before tribunals, which is dealt with at the foot of page 109 in paragraph 39.1? We draw attention to section 30 in which there is a denial of the right to maintain:

proceedings for compensation for extinguishment.....of native title.....or .....of traditional usage .....in any court otherwise than under -

this part, and the effect of this section, as we point out at 39.2, is that the current Supreme Court actions which found our standing in these proceedings in the High Court, that is to say, actions 1282 of 1993 and CIV2109 of 1993 on behalf of the Woroora and Yawuru peoples are just such proceedings. The very proceedings that found our standing in this Court as we pleaded it in the proceedings in this Court in our statement of claim, that is to say that we have pleaded that we are the plaintiffs in actions in the Supreme Court of Western Australia, and these are the proceedings that are now directly affected.

If these provisions are valid, the plaintiffs in these proceedings are denied the right to continue to obtain a judicial determination on causes of action which were instituted before the Usage Act came into operation. If this provision is valid our action is at an end and we would respectfully submit that this constitutes a denial of the right to equal treatment before tribunals administering justice being the right set out in Article 5 of the International Convention and, we say, it is therefore inconsistent with section 10, as we have earlier submitted.

TOOHEY J: I am not clear what the point is, Mr Castan, in relation to the Supreme Court proceedings. Are those proceedings for a declaration as to title?

MR CASTAN: Yes, they are, Your Honour - - -

TOOHEY J: And/or compensation?

MR CASTAN: Yes, Your Honour, but they were proceedings for a declaration of title that were issued and instituted last year prior to the coming into operation of this legislation. This section says:

No proceedings for compensation for extinguishment, suspension or impairment of native title.....or rights of traditional usage in relation to land can be taken or maintained in any court otherwise than under this Part.

TOOHEY J: But, it would not bear upon an action seeking declaratory orders as to entitlement, would it?

MR CASTAN: The effect of the Act, if valid, is that the action must fail because the rights - - -

TOOHEY J: I appreciate, yes, I understand that.

MR CASTAN: - - - are extinguished.

TOOHEY J: Yes.

MR CASTAN: The rights are extinguished by the earlier provisions. The claim for native title was issued before the Act came into operation. In that sense it is closely analogous to the situation in Mabo [No 1] where proceedings were on foot and legislation was passed by the State of Queensland extinguishing the rights retrospectively thereby, effectively, bringing to an end the litigation if the Act, the Queensland Declaratory Act, was valid. Here you have had proceedings on foot last year, the passage of this Act, which says that native title is extinguished. So, the parties to it have no - that is, presumably, if otherwise valid, a complete bar to their claim to native title because there is no longer, after 6 December, any native title in Western Australia for them to continue to claim in the litigation.

TOOHEY J: But would that preclude an action for declaratory relief in terms that native title existed before the coming into operation of the Western Australian Act, with the consequence that, although extinguished, it gave rise to a claim for compensation?

MR CASTAN: Yes, I think the point emerges that section 7 says that one is not entitled to compensation for the extinguishment effected by section 7.

TOOHEY J: Where does it say that?

MR CASTAN: It is section 28(1) that has that effect. The compensation provision itself expressly excludes any compensation for the extinguishment of native title because, presumably, that is on the logic that one gets the rights of traditional usage. So that, in effect, the plaintiffs are out of court, by virtue of the operation of this Act.

DAWSON J: That is a strange way of reasoning because if the Act is invalid they are not.

MR CASTAN: Of course, that is right.

DAWSON J: It is really putting the cart before the horse, is it not? If the Act is valid then it denies your argument.

MR CASTAN: Your Honour, we say that this provision is invalid and it is one of the reasons why the Act is invalid. But if it be valid - it is because it has that effect on us that it is invalid, as we would submit, because by reason of section 10 of the Racial Discrimination Act - - -

DAWSON J: There is a certain logical inconsistency, but do not stop there.

TOOHEY J: I am not sure that I follow that but perhaps we do not really need to become involved in the Supreme Court proceedings.

MR CASTAN: No, the detail of the particular litigant's position is only pointed up to highlight the position. We refer, at pages 110 to 111, to the surrender agreements under section 43. The point of this is that section 43 authorises the Minister to determine unilaterally the persons to whom he will give notices under the Act, with whom he will negotiate agreements to surrender and those who will be bound. So it is the Minister who decides. There is a limited safeguard at section 25, the agreement to surrender:

does not have effect unless it has been approved by the Supreme Court on application made by the Minister.

And there are precautions set out in section 25(3) and we mention those at the top page 111. But the defect is referred to in paragraph 40.3 on page 111. There is no mechanism for ensuring that all the persons who might have entitlements to rights of traditional usage would receive notice of an agreement but it binds people who have not been notified. Now, we then come to - - -

GAUDRON J: How do you relate that to section 10 of the Racial Discrimination Act, if at all?

MR CASTAN: We say that it is not the case that other persons are placed in the position where a Minister is given the right to decide who are the persons who are to be notified, and where the rights and interests of those having some concern in a matter are determined by a Minister and may be affected without notice if they are not included. In other words - - -

GAUDRON J: It just seems to me that it may well be a provision that is appropriate and adapted to native title.

MR CASTAN: It may be argued to that effect. We would respectfully submit that it could not be so justified because there is no reason why there should not be procedures applied to Aboriginal people to ensure that all of the relevant people who have entitlements do receive notice. But we concede that it may be capable of being justified on that basis, but that basis only.

Now, we then come to what is perhaps the most fundamental defect in the entire scheme and this is the amendment of various pieces of legislation in Western Australia for the purpose of inserting provisions for notification, objection and appeal in relation to the grants of titles and interests in land and coastal waters and the provision for notification to persons who hold rights of traditional usage in relation to the grants.

Now, in relation to this can I take Your Honours to section 94P of the amendments to the Mining Act which is on page 47 of the print, which illustrates the way in which these provisions operate. We can take the provisions, which are from page 34 to 47 dealing with the Mining Act as perhaps typical of those that apply in relation to amendments to other Acts there similar.

In setting up this system of notification, provision for objection and the like on the part of those persons who may hold rights of traditional usage, when grants of other interests are to be made by the Crown, it is provided in 94P that:

(1) The Minister for Mines may by instrument published in the Gazette declare that this Division does not apply to an application for a mining tenement, or applications for a particular kind of mining tenement, in respect of an area of Crown land specified.in the instrument.

(2) A declaration.....may be made at any time -

and it has effect according to its tenor.

Now this, in our respectful submission, renders the apparent provision of a set of provisions designed to provide at least some rights of hearing, rights of objection and rights to be considered by those who hold interests under the rights of traditional usage, it renders effectively nugatory that which, on its face, appears to be a scheme designed to provide at least some of the kinds of protections, though in a different form and a different style than those which other holders have.

BRENNAN J: Now, I understand what you are saying, I think, the broad principle, Mr Castan, but throughout the whole of this I must say it seems to me that you have got to put on the one side the provisions of this Act and on the other side the statutory provisions which are of general application, and that we do not have.

MR CASTAN: I will take Your Honour to - - -

BRENNAN J: I have no doubt that by pulling down volumes of the Western Australian statutes as no doubt they have been pulled down by the draftsman of this Act, we could do it, but we will be here till next Christmas if we do.

MR CASTAN: Can I say we have summarised them in these submissions and further summarised them and provided considerable detail in our reply submissions.

BRENNAN J: But have you summarised them by saying, "and the effect of these other provisions is", or have you been able to give us the other provisions so that we can say for ourselves that your submission is right?

MR CASTAN: I think the answer is we have done the former. I am told that those who will be following us are doing this in a comprehensive way that is not encompassed in the totality of what we have put, Your Honour. So the answer is the Court will be provided with some considerable detail by those appearing for the Martu people.

BRENNAN J: So we will have the text to tell us, for example, what the effect of 94P is?

MR CASTAN: The answer to Your Honour's question is yes, you will, as I understand it. But the point we make about these provisions is that one does not need to go that far given that these procedures which have been provided are at the discretion of the Minister to be disapplied. He may disapply them. So although a procedure is set up, and although one can look at it and say, "Well, it is different to, or better than or worse than the procedures that are generally provided in the legislation", under each of these classifications - and from page 111 we have headed it, "Notification, Objection, Discretion to Consult, Denial of Judicial Review, Mining Act, Consent. The key to it comes at the bottom of page 113, "Disapplication", and the key to it comes in section 94P of the Mining Act and the equivalent provisions that are set out at the top of page 114.

The key to it is that a procedure which is set up, no matter whether it be the same or different than the procedures that are provided for others, where the Minister can say, "I won't have these procedures apply to this particular grant of an interest" is, in our respectful submission, discriminatory where other persons who might hold interests in land are not subject to whatever rights of objection and notification have been completely rendered nugatory.

BRENNAN J: But 94P is referable to areas of Crown land. Do we have a definition of "Crown land" in the Mining Act? Yes, we do on page 39 as my brother Dawson points out.

MR CASTAN: Yes, and it requires one to then go to other Acts, the Land Act and the Conservation and Land Management Act.

BRENNAN J: That is the very problem that I see. I mean, on its face it is a provision of general application with respect to Crown land, whatever that may mean. It does not single out or identify land which is the subject of traditional usage, though no doubt it is capable of application to that land.

MR CASTAN: Yes, but the point that is made, Your Honour, is that in so far as there is a provision providing for notification to persons who hold the right of traditional usage, to give them rights of objection, to give them a hearing , to give them the sort of rights in relation to their interests in land, or their now rights to traditional usage, that persons whose interests in land otherwise being affected by mining proposals or by the various other proposals that are dealt with in these amended provisions, these rights, in so far as they are conferred at all, are capable of being disapplied, that is to say, the entire set of new provisions that are here inserted, may not operate.

TOOHEY J: It goes further than notification though. You seem to put the emphasis on notification, but if you look at 94F on page 41 it deals with the right to object to the grant of a mining lease. So presumably if - to use the language of the Act - that division is disapplied, an Aboriginal group has no standing to object on grounds relating to rights of traditional usage where there is an application for a mining tenure?

MR CASTAN: Yes, Your Honour. It is an entire framework. It is not just notification. As I said, it is objection, and we have set that out at the top of page 112 with all the relevant provisions. It includes a discretion in the Minister to consult. It includes provisions for the Minister obtaining consent. That is set out at page 113. There are a number of provisions including the objection, but the point we seek to make is that the system that is provided in relation to interests being granted, including mining interests, but there are the other Acts that are also amended, is itself subject to ministerial disapplication, that is to say, the apparent rights of notification, objection, discretion, consultation, are capable of being simply eliminated, so that they do not apply at all.

The figures, as we have been supplied by our learned friends for Western Australia, are that from 6 December 1993 to 12 August 1994 there have been 3800 disapplications in relation to proposed grants. I do not have the figures for the numbers in respect of Crown grants that have been made in respect of which there was not a disapplication. But the Government Gazette reveals that there have been over 3800 disapplications in the space of nine months. So that there is a wholesale - as one might have expected and one might say, "Well, the precise facts don't matter", but as one might have expected, this is not just some hypothetical reserve capacity of a Minister to render this whole objection and system nugatory in the exceptional case. There is a process of wholesale disapplication.

So that the apparent rights created do not exist in substance, we would submit, and it is sufficient to point out the capacity to disapply is sufficient, we would respectfully submit, given that there is no such equivalent disapplication of rights of objection under a Public Works Act or under the ordinary rights that persons who have interests in land and have rights to object or to go before a mining warden, in the case of mining interests, or the whole panoply of rights that exist in the totality of the legislation. Your Honours will be supplied with the detail.

But the principle that we seek to point out is that it is only these rights that are subject to these special kinds of rights of objection and then the rights that they do have are at the Minister's discretion to simply not be there at all. They are taken away. That, in our respectful submission, classically illustrates the breach of section 10 of the Racial Discrimination Act.

It is a clear inconsistency to say that there will be not only a different set of provisions relating to notification, which perhaps it may be said are appropriate and adapted to the unique nature of native title or the rights of traditional usage now reflected in this Act, but to say that the provisions that are provided such as they are can be rendered totally inapplicable by the Minister.

In our respectful submission, in the absence of some other rational system, one might even conceive of a system of disapplication that said in the cases perhaps in towns or in the case of fee simple grants, there may be other kinds of ways in which one could devise a system that might rationally be said to be sufficient to not fall foul of section 10 of the Racial Discrimination Act. In our respectful submission, a system of this kind does.

Your Honours, given that there is going to be a further analysis of these matters provided by our learned friends who are following us, can I conclude by simply drawing Your Honours' attention to the fact that in book 4 of our submissions, at pages 83 to 99, there are further detailed analyses of a number of these provisions. I will not take Your Honours to all of them but a number of the questions that Your Honour Justice Brennan addressed to me concerning the details of other Acts are set out in our reply submissions which are set out from pages 83 to 99, though I cannot undertake that they do provide exhaustively the answer that Your Honour has sought. But a very large number of them do because there is a response to specific suggestions put. I will not trouble Your Honours with the totality of that but I would refer Your Honours to pages 83 to 100.

Can I then simply mention that in relation to the Native Title Act, we have understood the concession by our learned friends for Western Australia to be in a form that says that it is agreed, or conceded, that the Land (Titles and Traditional Usage) Act of Western Australia is inconsistent in section 109 terms if the Native Title Act 1945 is upheld as valid. In the light of that we do not seek to deal with that further issue. Our answers to questions are set out at page 101 of book 4, as we would contend. They do vary slightly from the Commonwealth, though not, I think, in any matters of real substance.

DEANE J: Except is that concession applicable for our purposes to section 5 of the Western Australian Act? Because as I follow the Commonwealth's submissions, in terms of it leaving it open to States to validate, it would not follow that section 5 was invalid. If one accepted the Commonwealth's approach, as distinct from Western Australia's concession, if that be the concession, it may well be that one would have to address the question of section 5 and the Racial Discrimination Act, regardless of whether 109 otherwise validated the West Australian Act.

MR CASTAN: We had not thought there was any limitation on the concession until we heard what was said by the Commonwealth, and we contend - - -

DEANE J: But we cannot hold laws of a State invalid because counsel for a State makes a concession if another counsel before us has put a submission which might lead to the other view.

MR CASTAN: I can answer Your Honour very shortly by saying that it is our respectful submission that section 5 does conflict with the Native Title Act, and that is simply because it does not meet the criteria of section 15 of the Native Title Act which are made applicable by section 19 of that Act. In so far as it purports to be a law of a State which provides for past acts to be valid, it does not meet the criteria of sections 15 and 16, which are the criteria that, in order to be consistent with the Native Title Act, would be required.

DEANE J: I follow that, but that means you are in conflict with the Solicitor-General for the Commonwealth, who, as I followed it, said that, notwithstanding section 19, it was open to a State to validate past grants taking the risk that its legislation may or may not stand up in terms of the Racial Discrimination Act or other legislation.

MR CASTAN: Yes, and we would disagree to that extent, and we would respectfully submit that while a State can do so, it also runs the risk of being in conflict with the Native Title Act.

DEANE J: Well, that is obvious.

MR CASTAN: Yes, but our disagreement really comes down to a matter of the appropriate construction of section 11(2)(b).

DEANE J: Is your disagreement as to whether section 19 effectively covers the field of valid extinguishment by a State?

MR CASTAN: Yes. Certainly we would adopt that view and we would say that nothing in section 11(2)(b) is intended to, so to speak, limit the way in which the Commonwealth criteria of extinguishment are laid down in section 19, which is to pick up those requirements of section 15. That is the way in which we would put the matter and would say that is the better view of section 11(2)(b).

Perhaps I should just say in case it is necessary for the matter to be dealt with on the other hypothesis, that so far as section 5 of the Usage Act is concerned, we would point out that it purports to validate grants which presumably were invalid by reason of the Racial Discrimination Act, one assumes, and to the extent they were invalid by reason of the a section 109 conflict, in its present form and in the absence of anything else it seems that it amounts to an attempt to retrospectively undo a section 109 inconsistency, and it is either ineffective, following Metwally, or it is in conflict itself with the Racial Discrimination Act. It may not be necessary to come to that analysis, but - - -

GAUDRON J: But there may be other bases for invalidity, theoretically at least, apart from 109 conflict with section 10 of the Racial Discrimination Act, in theory at least.

MR CASTAN: Yes, there could be other kinds of invalidity that it seeks to - - -

GAUDRON J: Yes, like the failure to comply with the Western Australian legislation.

MR CASTAN: Yes, and in theory it could have some operation on that basis but, as expressed, in so far as it seeks to validate invalidity that otherwise arose from section 109 inconsistency with the Racial Discrimination Act is itself trying to do that which Metwally said, as we understood it, could not be done. Those are the submissions.

MASON CJ: Yes, thank you, Mr Castan. Mr Roberts-Smith.

MR ROBERTS-SMITH: Your Honours, Teddy Biljabu and the other named plaintiffs in this action bring the action on behalf of the Martu people. In its distilled essence, the case for the Martu plaintiffs is that whilst the common law recognised the concept of native title, that recognition was modified by pragmatic considerations relating to the history of European settlement. That modification effected, in our submission, a racist diminution of the rights and interests encompassed by the concept of native title, such that at common law those rights and interests were not given full respect according to their tenor.

In Australia, since October 1975, as established by this Court in Mabo [No 1] and Mabo [No 2], the Commonwealth Racial Discrimination Act has operated to restore equality before the law by requiring full respect be given to Aboriginal title according to its tenor.

McHUGH J: I do not understand the expression "title according to its tenor". I can understand grant of title according to tenor, but what do you mean by title according to tenor?

MR ROBERTS-SMITH: Perhaps, if I might for present purposes then, in response to Your Honour, simply use the expression traditional rights and interests at common law, that is sufficient for present purposes. The Western Australian Land (Titles and Traditional Usage) Act sought, in our submission, not merely to perpetuate the racist diminishment of native title which was effected at common law, but by legislating for the general extinguishment of all traditional rights and interests throughout Western Australia and the substitution for those interests by a regime which, in our submission, was wholly subordinate and inferior, that is, the regime of rights was wholly subordinate and inferior, they are significantly less, in our submission, than the rights they purport to replace. By these means the Western Australian Act in our submission, sought to effect a fundamental and permanent denial of equality before the law to those otherwise entitled to those rights and interests and, in effect, in our submission, to complete the racially discriminatory dispossession of the Western Australian Aboriginal people which commenced in 1829.

The Martu plaintiffs, Your Honours, contend that there has never been any general extinguishment of those rights and interests in Western Australia, and perhaps for the purposes of the argument it is convenient if I might refer to them as native title rather than the long expression, but if I am understood to mean the long expression. Secondly, that the Western Australian Act, in our submission, does not achieve that result because it is wholly invalid. That Act, in our submission, was inoperative when it was signed into law in December 1993 because even then its provisions offended the Racial Discrimination Act, were inconsistent with the Racial Discrimination Act, and so were invalid by virtue of section 109 of the Constitution.

It is our submission that the Western Australian Act is also in conflict, is inconsistent with the Commonwealth Native Title Act and, so, again, by virtue of section 109 of the Constitution is invalid to that extent for that quite separate reason. But out primary submission, as I say, is that the Western Australian Act was invalid from the outset and has never come into effective operation because of inconsistency with the Racial Discrimination Act.

I think Your Honour Justice Brennan mentioned yesterday, consequential problems which might arise if it was seen that the Act had some limited operation but was then made inoperative in the section 109 sense by virtue of inconsistency with the Native Title Act, if there had been rights vested in the mean time, of course, in our submission that situation simply does not arise because of our primary submission that it was invalid and inoperative from the outset by virtue of conflict with the Racial Discrimination Act.

Could I perhaps briefly outline our approach. Your Honours have our written submissions, and certainly we do not propose to repeat those but we will be taking Your Honours through them, as it were, to indicate particular aspects we submit are worthy of particular consideration. They are in two volumes, plus a written reply. There is a fairly thick volume which deals with questions 1(a) and 1(b). On the front page of that, the heading page, it is referred to as Additional Questions. That, of course, is incorrect, it should simply be questions 1(a) and 1(b). Your Honours might note that.

We have then a separate volume which deals with questions 2, 3 and 4 - that is, additional questions 2, 3 and 4, which were subsequently renumbered, I think, in the order of Your Honour the Chief Justice and we have a further short volume entitled "A written reply". From all of that material it is apparent - hopefully it should be apparent - that we concentrate, really, on two aspects of the submissions. First of all, the question of general extinguishment and, secondly, on the question of inconsistency, first with the Racial Discrimination Act and then with the Native Title Act. Again, in further focus, if Your Honours like, we come closer in then to concentrate on the Racial Discrimination Act aspect in particular.

Might I say that we generally agree with, and adopt, the submissions put on behalf of the Wororra and Yawuru people, although there are some differences in both approach, and to some extent, I think, in content, but those will become apparent as we progress. The volume of our submissions which deals with questions 1(a) and 1(b) does, I might point out to Your Honours, contain within it the historical materials upon which we rely in relation to the question of general extinguishment.

Having regard to the sequence of argument adopted by our learned friends for the State of Western Australia, we too have adopted a division of labour such that Mr Bartlett will present our submissions on general extinguishment and on Part IV of our submissions on question 16 and 17 at pages 39 to 42, that is, basically involving the proposition that the common law recognised the concept of native title but effected its racist diminishment. He will then also deal with item D of Part V at pages 49 to 66 in which we demonstrate specifically how the regime substituted by the Western Australian Act denies equality before the law and so is in conflict with the Racial Discrimination Act.

It is in that component of our submissions that Your Honours will be taken to the materials which, I think, Your Honour Justice Brennan queried a few moments ago with my learned friend Mr Castan. The division of labour is that I will deal with all other matters.

As Your Honours again will already have noted, we have prefaced each section of our submissions with a summary or outline of what follows. So that on general extinguishment, questions 1(a) and 1(b) the summary appears at pages i to iii of that large volume. In relation to questions 16 and 17 of the other volume of the summary appears at pages 5 to 10, and on question 18 the summary appears at page 69. As I have said, our reply is quite a short document.

Our essential propositions are set out at paragraphs 11 to 37 of the statement of claim filed by the Martu plaintiffs at pages 8 to 24 of the case stated book. Because we are seeking to be as brief as we can in our oral submissions and concentrate only on specific aspects, might I perhaps begin, even though I appreciate it is unnecessary in the strict sense, I think, by handing to Your Honours an outline of our oral argument which may assist Your Honours as we go along. That of course was not in any way intended to detract from our written submissions.

Your Honours, before dealing with our submissions proper, may I say something about the document handed to the Court by counsel for Western Australia, that document being headed Land and Resources Administration and Use, Statement of Facts and Related Statistics. Whilst for obvious reasons we are essentially in no position to dispute the figures there presented, we are prepared to have this Court deal with the matter on the basis that those are the facts alleged by the State. There are some aspects of their presentation to which we feel obliged to draw Your Honours' attention briefly as illustrative of the nature of our reservations and concerns about them.

So far as the pleadings contained in that document, that is the pleadings as such contained in that document, we would simply note the subjective form of various expressions used, for example, in paragraph 66 at page 2 of that document, at paragraphs 67 and 72, pages 2, 3 and 4 respectively. Obviously those are matters of subjective comment. More significantly, in the context of the State's submissions that compliance with the Native Title Act would impose an unacceptable burden on the administration of land management to such an extent as to impair the functioning of the State as a polity, we respectfully draw attention to the State's own pleading of fact at paragraph 75 which appears at page 5 of that booklet which suggests that, in our submission, existing administrative burdens of an appropriately or apparently like nature resulting in delays are not regarded as resulting in such impairment, presumably because the governmental community or social need for the various stages of the proposals process there referred to, is seen as justifying them.

A similar point is picked up and briefly developed in Part 4 of the Martu plaintiffs' reply dated 18 August 1994, at paragraphs 1-13, and in particular, paragraph 12. Now, just whilst referring to that, might I ask Your Honours to note that in paragraph 13 of that reply, the reference should be to the State's submissions, H228 "to" 246 rather than "and" 246, as appears in paragraph 13.

At no stage in its submissions, in our submission, has the State of Western Australia gone any way to demonstrating how the nature and/or extent of the administrative burden of complying with the requirements of the Native Title Act is so different in quantity or otherwise from its own existing processes as to constitute particular disability or burden upon an operation or activity of the State and more especially upon the exercise of its constitutional powers in the sense used by Justice Dixon in Melbourne Corporation v The Commonwealth, [1947] HCA 26; (1947) 74 CLR 31, at page 78, and has obviously developed subsequently.

We will make a further brief submission about that in just a moment, but presently, if we might just remain with the document, our major concern is about the use and description of what is referred to in this State document and in the schedules as "Aboriginal land". There is an implication conveyed by the way in which these figures are presented that the Aboriginal people in Western Australia have aggregate interests in land which are more than equal, perhaps is the way to suggest it, to the interests of the non-Aboriginal population and more than equal indeed when compared to the interests of Aboriginal people in other States.

I suppose we might preface our submissions in respect of the submissions which are to follow by making the observation that, of course, Western Australia does in fact constitute some 40 per cent of Australia and against that background, the sorts of figures which are reflected in this document, the schedule to the pleadings, are hardly to be surprised at.

If I could take Your Honours to page 21, to begin with, item 17, there is a reference there to "Aboriginal Population". In Western Australia 2.6 per cent and of Australia, 1.6 per cent. At page 18 then, item 9, also item 7 at page 16, one sees that "Aboriginal land" as defined is said to constitute 13 per cent - I am looking at the top of the page to the right-hand side - of all land in Australia, and 30 per cent in Western Australia. The definition of "Aboriginal land" there, under item 2, is Aboriginal land comprises freehold, leasehold, including pastoral and reserve land held by or on behalf of Aboriginal people. The point we make about that is that there is no Aboriginal freehold title at all in Western Australia, as appears from table 14A at page 19.

That is the reality. In that table Your Honours may find a little bit more difficulty in locating Western Australia because that seems to be the only table in which Western Australia does not actually appear on the left-hand column but, rather, somewhere in the middle. One can see there, in relation to freehold, that there simply is no Aboriginal freehold in Western Australia.

The nature of what is comprised in the description of Aboriginal land in Western Australia, in fact, is seen at page 17 at item 8 and is shown there as comprising reserves, special leases and pastoral leases. So the vast bulk of what is described as Aboriginal land is in the form of Aboriginal reserves or in the form of reserves. So it is our respectful submission, to suggest, as Western Australia does at page 11, that 13 per cent of land tenure in Western Australia is Aboriginal land is extremely misleading, unless it is appreciated that that description is not comparable with the other States and territories, that Aboriginal people, of course, have no legal interest in Aboriginal reserves, they are Crown land owned and controlled by the Minister for Aboriginal Affairs under the State Aboriginal Affairs Planning Authority Act.

BRENNAN J: I thought you would say "controlled but not owned by the Minister".

MR ROBERTS-SMITH: My understanding, Your Honour, is that, in fact, they are owned in the corporate sense subject to the conditions of use by the Aboriginal people for which the reserve is dedicated.

Now, can I also draw Your Honours' attention, without going to it, simply to the Western Australian submission in volume 1, paragraph E76 at page 54, and point out that that is, of course, a pleading of fact by the State itself. We would also make the submission in passing that to classify a pastoral lease owned by a corporation, as Aboriginal land, is again something that needs to be specifically borne in mind when considering descriptions such as Aboriginal land.

There seems to be perhaps also in these figures an unarticulated assumption that behind the range of the figures advanced that mining and economic and such like interests are all that matter here. There is virtually no breakdown, there is no specificity about Aboriginal interests at all really, for example, cultural or sacred sites; the subject of protection under other legislation, heritage legislation in Western Australia and so forth. Those matters are simply not mentioned.

So overall it is our submission that the figures afford a really quite entirely unsatisfactory and inadequate basis for this Court to make any kind of qualitative determination of either the fact or extent of alleged impairment of the capacity of the State to function as a State, even having regard to the figures advanced by the State.

I turn now to the questions in our submissions and go directly to question 2, the validity of the Native Title Act and specifically section 223(3). I can deal with that extremely briefly, simply by saying that the Martu plaintiffs adopt the Commonwealth submissions in Part 8 of their written submissions. We further make the submissions set out at paragraph 2 and 3 of our written reply dated 18 August this year and have nothing further to add.

Moving then to questions 3 to 7, the matters which were broadly described previously, I think, as "controlling State legislative power". First of all, in addition to adopting the Commonwealth submissions in Part 6 of their written submissions, we make the additional submissions reflected at Part 2 of our written reply. We point out that the scheme of the Native Title Act expressly contemplates the making of State laws dealing with native title, and I draw Your Honours' attention particularly to section 8 of the Native Title Act which is actually at page 8 of the book containing the statute, which specifically provides that this Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

The Commonwealth in this instance, in our submission, could well have covered the field, but it chose not to do so. What it did choose to do, in our submission, was to cover a part of the field or to cover the field but, as it were, leave certain gates open and areas within the field within which State legislation could operate.

An express statement of an intention not to cover the field, of course, has the constitutional effect of avoiding inconsistency on that basis. In support of that proposition, we cite Wenn v Attorney-General for Victoria, [1948] HCA 13; (1984) 77 CLR 84, and particularly His Honour Chief Justice Latham at page 110 at points 1 to 5; also page 108 at point 9 to the top of page 109. Of course, we also rely on Reg v Credit Tribunal, Ex parte General Motors Acceptance Corporation, [1977] HCA 34; (1977) 137 CLR 545, per Your Honour the Chief Justice at pages 563 to 564 and adopted by Chief Justice Gibbs and Justices Stephen and Jacobs at pages 552 and 556 and generally by Chief Justice Barwick at page 552.

So, if the legislation is within the constitutional head of power, in our submission, it is not open to the objection that it is a law with respect to State legislative power or trenches upon State functions. Again, we rely upon the Chief Justice Dixon at page 120, and Your Honour Justice Deane in the Queensland Electricity Commission v the Commonwealth, [1985] HCa 56; (1985) 159 CLR 192, at pages 250 to 251 and, in our submission, the same proposition, the same principle, applies in respect to an expression of intention to cover part of the field only.

We submit, Your Honours, that the Native Title Act does not and, indeed, does not purport to control the legislative powers of the States. The latter, of course, may enact whatever legislation they choose. If it is invalid because of inconsistency then, clearly, that is only because of the operation of section 109 of the Constitution itself, and only to the extent of the inconsistency and, importantly, only for so long as the inconsistency remains and, of course, it may be removed by repeal or amendment of the Commonwealth legislation, in which event the State law would become operative. That is, in our submission, an important consideration certainly from the point of view of the Martu plaintiffs in this particular action.

We cite, in support of that, University of Wollongong v Metwally, (1984) 158 CLR 447, Your Honour Justice Brennan in particular at page 474; and also, of course, Butler v the Attorney-General for Victoria [1961] HCA 32; (1961) 106 CLR 268, His Honour Justice Fullagar at page 274 at about point 1 to point 6, His Honour Justice Taylor at pages 282 and 283, and Justice Windeyer at page 286.

Dealing with the argument that the Commonwealth provision was really invalid as an attempt to legislate with respect to State legislative powers and not with respect to the subject of restoration of discharged servicemen to civilian life in Wenn's case to which I have already made reference, His Honour Chief Justice Latham said at page 108 point 9 to the top of 109, and page 111 point 1 to point 5:

All valid Federal laws prevail over State laws which are inconsistent with them, Constitution s 109. But the Federal laws which so prevail do not therefore become laws invalidly attempting to limit the powers of State Parliaments.

Having again also referred to Butler, might I submit that the factual circumstances out of which that case arose suggest a further answer to the submission of Mr Jackson's that the Native Title Act cannot be valid as a special measure because there is nothing in it to show that it is intended to be other than permanent.

Of course, one answer to that would be the expectation that the government would monitor the operation of the Act and take appropriate legislative steps once the objective had been achieved, as I think was indicated by Your Honour Justice Brennan in Gerhardy v Brown, [1985] HCA 11; (1984-85) 159 CLR 70 at page 140 at about point 6.

A second answer to the same point was illustrated by the lapsing of the Commonwealth Re-Establishment and Employment Act, the primacy of which, of course, over inconsistent State legislation was upheld in Wenn v Attorney-General for Victoria. That was in, of course, 1948. By 1959, however, this Court decided in Illawarra District County Council v Wickham, [1959] HCA 18; (1959) 101 CLR 467, that the relevant provisions could no longer be supported by the defence power, which was the only source of power on which they were supported, and they had, accordingly, ceased to be a law of the Commonwealth. The Victorian legislation, thereupon, revived.

So, once again, should it be necessary to look for an answer in relation to the failure in the Native Title Act 1981 to specify that it is not intended to be permanent, if it is a special measure, then there are answers readily available. We would subsequently go on, in fact, to submit that there is no need to see the Native Title Act as a special measure and we support the Commonwealth's submissions in that regard in any event.

Can I now turn to Question 6 which deals with section 43 of the Native Title Act and the effect of the determination made by the Commonwealth Minister in relation to State legislation and these submissions are made in response to the matters that were argued, I think both by my learned friend, Mr Jackson, and the Solicitor-General for South Australia.

First of all, it is our submission that section 43(1) is not a determination which requires compliance with the Native Title Act for State legislation to become law but it rather affords a means of enabling a State to enact laws in relation to native title which do not conflict with the Native Title Act. Once such a written determination is made, then there is no conflict between the Native Title Act and the State provisions and section 109 of the Constitution simply has nothing with which to enliven it.

Secondly, a determination by the Minister under section 43(1) says nothing at all about the Racial Discrimination Act. The State Act, in our submission, must still comply with the Racial Discrimination Act or else face invalidity on that ground. Thirdly, section 43(1) does not make the Commonwealth Minister any part of the State legislative process. If the State law is inconsistent with the Native Title Act in a way which theoretically could be overcome by the Minister's determination but he or she does not give it, the State legislative process is still complete, the law is still a State enactment, but it has no operation because of section 109.

If the Commonwealth Minister does make the appropriate determination, then that would relate to an already existing State enactment. So, again, put simply, we say that section 43(1) of the Native Title Act does not make the Commonwealth Minister part of the State's legislative process and, in our submission, that is the short answer to the arguments advanced in that respect on behalf both of the State of Western Australia and the State of South Australia.

Could I move now to questions 9 to 13, and referring to them generally, the Martu plaintiffs adopt the submissions again of the Commonwealth, supplemented by our own submissions set out in Parts 5 to 12 of our reply of 18 August.

But dealing specifically with question 9, if I may shortly, concerning the interference or impairment of the State, my learned friend, Mr Jackson, argued, or seemed to be arguing, that there was a qualitative test and a great deal of the Western Australian submissions went to that, and this Court was taken through them at the time in some considerable detail. But, in our respectful submission, the matter was left there, in the end without confronting the real question posed by the very proposition of a qualitative test, and that is: how is interference or impairment to be measured; what is the standard? What is it, in a particular case, that takes the impact of a Commonwealth law over the line to so impair or interfere with the constitutional operations of the State, or capacity of the State to function, as to make that legislation unconstitutional?

Again, without taking Your Honours to it but referring generally to the sort of figures and transactions referred to in the Commonwealth's facts and related statistics document and the other factual material produced by the State dealing with numbers of transactions and the like, where does one draw the line? Another 500 grants of land; would that do it? If there were 50,000, does one need a few more thousand? Would a few less suffice? No test has been advanced to this Court to enable that sort of determination to be made, although it is inherent in a qualitative approach.

What I am really submitting, if Your Honours please, is that no justiciable standard has been advanced in relation to that. The so-called facts are suspect, in our respectful submission, in themselves for the sort of reasons to which I have already referred and, indeed, to which my learned friend Mr Castan referred. On this material, that is the material advanced by the State, it is our submission that the Court could not be satisfied on any reasonable basis that the Native Title Act does impose an intolerable burden on Western Australia and so, too, the approach implicit in the submissions of both Western Australia and South Australia seems to involve a subtle reversal of the onus because it has been put on the basis that it is really all so uncertain, it is all so difficult, we do not know how much native title there is, we do not know how many transactions are going to be affected, potentially it could be 93 per cent of the State and so on. That is the sort of proposition or argument that is being advanced.

It involves, in our respectful submission, no meaningful analysis, and it is perhaps to be expected that a meaningful analysis could at least have been attempted. For example, native title, of course, relates only to Aboriginal people living in a traditional context. It could have perhaps been attempted to identify the number of Aboriginal people still in Western Australia living in a traditional way and, in that context, then whereabouts in the State are they doing that because, of course, it cannot be the centre of Perth by definition, and so on. It could only be in certain areas which lend themselves to that sort of existence.

So, it could have refined, in our respectful submission, at least to some extent, and if there were, say, 3000 of the 43,000 Aboriginals in Western Australia, living traditionally today, and they were identified as living in particular areas, even in very broad terms, at least that immediately puts to rest the proposition that potentially we are talking about 93 per cent of the State. But, there really, in our submission, is not any of this in this material.

BRENNAN J: Mr Roberts-Smith, can I just interrupt you? You have gone on to Question 9 but I notice in your argument you say that you adopt the Commonwealth's submission in relation to Question 8.

MR ROBERTS-SMITH: Yes.

BRENNAN J: Mr Castan does not, in the material respect, namely that if section 12 falls that the jurisdiction of the Federal Court falls with it. Now, if that happens, it seems to me there may be grave implications for the Act as a whole. I was wondering if, perhaps, you might like to consider over the luncheon adjournment what your submissions are in relation to that?

MR ROBERTS-SMITH: I can state the submissions shortly, in relation to that. Of course that, I think, was something that occurred after the outline was prepared. But I can tell Your Honours that whilst we have no reason to disagree with the Commonwealth's submissions in respect of section 12 in the jurisdictional sense, in terms of the reason for that being there, it would be our submission that the Federal Court, none the less, would have jurisdiction, even if section 12 were not there, because that jurisdiction is vested by section 81.

BRENNAN J: Well you are in the same position as Mr Castan, are you not?

MR ROBERTS-SMITH: Yes.

MASON CJ: Mr Roberts-Smith, could I ask you how long the balance of your argument will be?

MR ROBERTS-SMITH: I would anticipate taking the afternoon, if Your Honour please, and then there would still be Mr Bartlett, of course.

MASON CJ: Yes; how long would Mr Bartlett take?

MR ROBERTS-SMITH: I would think a couple of hours. He is going to undertake that exercise to which reference has already been made, amongst other things, and that, of necessity, will take some little time. Those submissions, particularly in relation to the comparison of the substituted rights of traditional usage with the rights of others is, of course, a critical exercise, from our point of view.

MASON CJ: And, Ms O'Grady, on the assumption that you secure leave to intervene, how long do you think you would take?

MS O'GRADY: About 20 minutes, Your Honour.

MASON CJ: Thank you. Mr Jackson, your reply; is it possible for you to give an indication?

MR JACKSON: About two hours, I think, Your Honour.

MASON CJ: Thank you. The Court will now adjourn and we will resume at 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH: Thank you, Your Honour. Before continuing with my argument generally, might I apologise to the Court. I think I may have inadvertently misled the Court before lunch by referring to a qualitative test. My submissions in that regard were, as Your Honours no doubt appreciated, directed towards my learned friend, Mr Jackson's quantitative test.

It is our submission, as I think I was saying, that the material advanced by the State in relation to that in no way demonstrates that the State's continued existence or capacity to function as a polity is impaired or impeded by the Native Title Act and, of course, it is precisely in that particular way that the State has to demonstrate the matter if it is to succeed in that submission.

As Your Honour the Chief Justice reminded us in Queensland Electricity Commission v The Commonwealth, [1985] HCa 56; (1985) 159 CLR 192, at page 216 at about point 10, referring to what Your Honour and Justice Brennan had said in the Tasmanian Dam case - I will quote it without troubling to take Your Honours to that, but Your Honours simply said there, and I quote it:

it is against impairment of the capacity of the State to function as a government rather than against interference with or impairment of any function which a State government undertakes that this aspect of the prohibition is directed.

I refer also in passing to Your Honour's statement of the test at page 217, point 4 to point 5.

So, too, in our submission, rather more precision is needed than was advanced on behalf of the State in submissions referring to the effects of the Native Title Act on the State. It was not clear whether that term was intended to be used, for example, in the institutional sense, and I am talking about the effects here, or whether it was in some other sense. For example, in so far as the materials suggest that there might be a burden on mining or mining companies, it is not shown, for example, how this - if, in fact, it is established - is in turn a burden on the State. And in passing, of course, one might note that if additional administrative or bureaucratic burdens are imposed on a State for reasons of having to accommodate the Native Title Act, then as with other legislation, Commonwealth or State, those administrative or bureaucratic burdens in the sense of costs one might normally expect to be passed on in any event to the mining companies and the like.

In any event, in our submission, there is a fatal flaw in the State's propositions about impairment or impediment, and that is this because, inherent in the State's submissions is ultimately, we would submit, a total denial of Commonwealth power to legislate in respect of native title in Western Australia at all, simply because of accidents of geography, history, demography and so on. If the State's submissions in that regard were accepted, Western Australia, because of the fact that it is 40 per cent of Australia and because of the, I suppose, consequential impact of mining and these other matters referred to, Western Australia would always suffer a greater administrative and perhaps financial burden than other States and Territories, to such an extent, on the State's argument, as to amount to constitutional discrimination or impairment. So, if accepted, the logical extension of the argument advanced by the State would mean, as I have said, that Commonwealth legislation on a range of matters, be it to do with bounties on production or export, of quarantine, fisheries, the environment and many other things, could never apply to Western Australia because of its significantly greater impact on that State due to these geographic, demographic, and so on, factors.

Finally, on that point also, might I make the short submission that the Western Australian arguments make no accommodation or no allowance for the temporal aspect of these things. It is not as though, under the Native Title Act, all claims for native title were going to be made on the one day covering all possible areas of Western Australia. That Act, like any other, obviously operates in a temporal context and applications would be made over a period of time and relate to discrete areas of land; they may be large areas of land, but none the less these things would occur over time. And likewise, the projects, with which it is suggested such applications have the potential to interfere, would also occur, of course, over a period of time, and at different times.

Can I make a brief reference to the submissions advanced by the learned Solicitor-General for South Australia. It is our submission that contrary to what was put on behalf of that State, particularly at paragraph 2.15 of the State's submissions, the validation and provisions of the Native Title Act do not have the effect of indirectly amending the Racial Discrimination Act other than in relation to section 19 in respect of which specific provision is made by section 7(2).

We accept the suggestion advanced by Your Honour Justice Deane that section 7(2), section 11 and section 19 convey a clear legislative intent that native title could not be extinguished by subsequent State legislation which does not comply with the Native Title Act. In short, as I think Your Honour put it, section 19 covers the field of extinguishment by past acts. In our submission, that is the correct view.

Section 7 of the Native Title Act means what it says. By virtue of subsection (2), "the validation of past acts by or in accordance with" the Native Title Act is not affected by the Racial Discrimination Act. That is necessary because ex post facto validation with compensation only would still almost certainly not meet the requirements of the Racial Discrimination Act. So subsection (2) is a compromise. Subsection (1) then makes it clear that the Racial Discrimination Act does apply, in our submission, in respect of future acts and all other matters, indeed, arising under the Native Title Act.

Beyond that, what the Native Title Act does do, in our submission, is otherwise prescribe standards which, if complied with, will afford equality before the law, in which circumstance, of course, the relevant legislation would then not offend the Racial Discrimination Act and would not be inconsistent with it. So if that argument is accepted, then, in our submission, the related issues referred to by South Australia, at paragraph 2.17, simply do not arise or are irrelevant.

We also adopt and very strongly support the Commonwealth's submissions that the Native Title Act is fully within power and effective, quite apart from whether or not it is a special measure. Gerhardy v Brown, [1985] HCA 11; (1984-85) 159 CLR 70, should be read, in our respectful submission, as confined to its own particular facts and the particular content of the provisions of the Pitjitjanjara Land Rights Act of South Australia with which it was concerned.

We submit that the concept of discrimination in international law and, indeed, in the Racial Discrimination Act itself requires more than just different treatment. The question is whether the differential treatment is related to relevant differences between the groups in question. Again, we adopt and commend to Your Honours, with respect, the reasoning, although not the sentiments, expressed by Wojciech Sadurski in the article referred to and relied upon by the learned Solicitor-General for the Commonwealth, Gerhardy v Brown, the Concept of Discrimination: Reflections on the Landmark Case That Wasn't. That is in the Commonwealth's additional materials.

I will not take Your Honours to that now but can give some page references to which we would draw particular attention. They are page 55 at point 7, page 59 at point 7 - and these page references are of course to the page in the Commonwealth's materials - page 67 at footnote 66, page 75 at about point 5 and page 77 point 1 to point 4. In passing I would suggest that in that last reference, Your Honour Justice McHugh will, we would hope, find the answer to the question raised by yourself and, indeed, I think Your Honour Justice Brennan raised a similar question of the learned Solicitor-General for the Commonwealth on the application of Articles 1.1 and 1.4 of the Convention and the difficulty of interpreting those two in context. Without taking the time to deal with it now, we simply commend the reasoning of Sadurski in relation to that precise issue at that reference. We also refer to page 83 at point 6 and over to page 84 at point 1 and Your Honour Justice Brennan's comments in Street v The Queensland Bar Association, [1989] HCA 53; (1989) 168 CLR 461, at page 510.

Whilst on this particular aspect, Your Honour Justice Deane earlier also raised another query with Dr Griffith about reconciling section 10(1) of the Racial Discrimination Act with this approach, this different approach to Gerhardy v Brown, and I think from memory suggested that the restriction on alienability of native title at common law was difficult to reconcile on this view with alienability of other interests in land. Our submission is that the answer to that is that the inalienability of native title is not a rule imposed by the common law. It is part of the content of native title itself, and that is the distinction. So to the extent the common law recognises the incidence of native title as such, then one of those incidents traditionally, according to the traditional regime, is inalienability other than to other members of the traditional group.

Your Honours Justices Deane and Gaudron specifically referred to that in Mabo [No 2] at page 88 at point 4 and again at page 110 at point 4 to point 6 and Your Honour Justice Brennan, at pages 59 to 60 and at page 70 in the same case, and those references are noted in our submissions at page 3 paragraph 3.

Can I come now to additional Questions 2,3 and 4, which are now Questions 15, 16, and 17 in line with the order of Your Honour the Chief Justice which appears at page 122 and 123 of our case stated book. They began as additional Questions 1 to 4 and became transmuted into Questions 15, 16 and 17.

Dealing first with inconsistency of the Western Australian Act with section 9 of the Racial Discrimination Act, we make no submissions at all in relation to that. That of course is covered by Question 15. Turning to Questions 16 and 17; it is our submission that section 10 of the Racial Discrimination Act is designed to bring about equality before the law, that being the most fundamental of all human rights.

The plaintiffs particularly draw attention to the submissions in our written reply of 18 August 1994 at pages 9 to 12. It is probably unnecessary, I think, for me to go through those, but they do pick up what we contend is a significant misunderstanding on the part of the defendant of our original submissions in relation to equality before the law, and Your Honours probably need no further authority to be cited for the proposition that it is not enough simply to suggest that different interests be treated differently; more is required. The defendant's contention that that is sufficient, in our respectful submission, is fundamentally incomplete because it is only appropriate differential treatment which results in equality.

That issue generally, I think, was largely addressed by the learned Solicitor-General for the Commonwealth and, indeed, by Mr Castan, and I will not repeat what has already been said. We will make some further brief reference to these matters in our later submissions, but against the background of the submissions that have already been made on that issue.

The questions with which I would now seek to deal are set out at page 3 of our volume of our submissions dealing with Questions 2, 3 and 4. The submissions themselves, Part I commences at page 11. The proposition that section 10 is designed to bring about equality before the law is amply supported by the terms of the International Convention on the Elimination of Racial Discrimination and, indeed, by Mabo [No 1], and again I will not seek now to elaborate on that. We do emphasise, however, that it is an absolutely fundamental notion, fundamental generally, and certainly fundamental to our submissions, that in the Convention and in the Racial Discrimination Act itself the elimination of discrimination is directed to equality before the law.

At page 13 we have made the observation that the character of rights protected by legislation such as the Racial Discrimination Act is such as to require a beneficial and, indeed, a broad construction. We refer to what was said by His Honour Chief Justice Gibbs in Koowarta in the middle of page 13. We would add the view of the Supreme Court of Canada in Robichaud v Canada,(1987) 2 SCR 84, in which that court observed that interpretations of human rights laws, in that case legislation dealing with sexual harassment, which undermine the capacity to effectively redress discrimination, should be avoided.

Indeed, earlier in the case of Ontario Human Rights Commission & O'Malley v Simpson - Sears Ltd1985 CanLII 18 (SCC); , (1985) 2 SCR 536, the same court gave great weight to human rights laws, holding them to be quasi constitutional in so far as though obviously not constitutional, as the court put it, they have a natural primacy over other laws. Again, without going to it, I will give Your Honours the reference of Justice McIntyre at page 547.

Then further on in page 13, we maintain the proposition that equality before the law is not a right to be denied in favour of general public convenience or private interests, and we refer to Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 as an example of a somewhat different constitutional provision where, of course, in the very nature of the constitutional framework itself, there were seen to be reasons why the right which was granted should be read down to accommodate the federal nature of the Constitution and the national nature of the citizenry.

It is beyond question, in our submission, that the rights of which we now speak and those protected by section 10 include the right to own and inherit property, and that includes the traditional Aboriginal relationship to land. We discuss then, in the following pages or we make submissions in relation to the judgment of this Court in Mabo [No 1]. We point out at the bottom of page 14 that equality before the law has regard to the effect of the law, not merely its form; it must be genuine equality, and we refer to authorities in support of that proposition, including again another reference to Street in which it was recognised by this Court that there was a need to consider the particular effect of a provision to determine whether or not discrimination had occurred.

As to the recognition by this Court of the traditional interests asserted by Aboriginal persons in land and their abrogation, that is, the abrogation of those interests constituting a denial of equality before the law, at the middle of page 16, of course, we refer to Mabo [No 1] again and draw Your Honours' attention in particular to what fell from Your Honour Justice Deane at page 231 and indeed at the bottom of page 230. The Queensland Act there had, as Your Honour said, the effect of distinguishing between interests according to whether they were ultimately founded in pre-annexation traditional law and custom or post-annexation European law and that it discriminated against the former. And in passing, I would ask Your Honours to note the reference to the enhancement thereby of other rights, which was referred to at point 5 at page 231.

It is our submission, coming over then to page 17, that the common law and legislative regimes applied to rights and interests in land have demanded adherence to a general standard that required regard to be had to the particular tenor of the right or interest affected and that was the case, except, with respect, to the Aboriginal relationship to land. We go on then in the next part, Part II, to deal with that, that question of full respect.

It is important, perhaps, for us to emphasise, at this point, that at this stage, what we are talking about is the concept of all interests in land except native title, using that term in the way I have described.

With that qualification, it is our submission that all interests in land have always been respected according to their tenor, such that they have not been or must not be denied nor diminished arbitrarily, except for a specific public purpose or without compensation.

That respect for other interests, interestingly enough, is manifest even in the Western Australian Act itself. It effectively stipulates that all other interests, that is all interests except those founded on a traditional Aboriginal relationship to land, are to be given full respect according to tenor, and that is to be found in section 5(1). It is our submission that, in effect, what one sees there is a manifestation of the very proposition we are arguing. That approach, in respect to all other interests, is entirely consistent with the principle.

In Part II, through which I trust I can take Your Honours fairly quickly, we talk about whence the general standard of full respect is derived: first from the common law principles; Blackstone's Commentaries; well-established principles of statutory construction; even in terms of international law, the doctrine of respect for acquired rights of aliens; international legal standards; and, indeed, the legislative and constitutional history of land and resource disposition and management in Western Australia.

What we submit, with respect, is that having regard to all of those things there is well established a fundamental principle that equality before the law in relation to full respect for interests and rights in land requires that those interests be fully respected in the manner and in the ways that I have described.

We refer, at the bottom of page 18, to Adeyinka Oyekan v Musendiku Adele, (957) 1 WLR 876, at page 880 and of course emphasise the words "fully respected" appearing in the passage there quoted, which was quoted by Your Honour Justice Brennan in Mabo [No 2] at page 56 point 6. Even the case of In re Southern Rhodesia recognised the principle, although of course not followed by this Court in relation to the classification of Aboriginal inhabitants and civilisations, if I can put it in that broad way. But certainly the principle was there accepted, as in the other cases referred to at page 19 on conquest and on cession.

Under the heading, paragraph 2, on cession we refer to Amodu Tijani v Secretary for Southern Nigeria, (1921) 2 AC 399, at 407, and set out there the quotation upon which we rely. I should perhaps say something very quickly about that because my learned friend, the Solicitor-General for Western Australia, sought to distinguish Amodu Tijani, and indeed other cases in relation to the issue of extinguishment, and I deal with that only very quickly in passing because that is for my learned friend, Mr Bartlett, to deal with. But the Solicitor-General sought to distinguish it on the ground that that case concerned itself with a treaty of cession and the community usufructuary rights have been recognised by the British Government as a matter of deliberate policy.

It is instructive to look at what Viscount Haldane went on to say, after the portion quoted by my learned friend at page 404 point 3, and at 406 point 7. The policy referred to appears at the bottom of page 406, and then at page 407 about point 4:

No doubt there was a cession to the British Crown, along with the sovereignty, of the radical or ultimate title to the land, in the new colony, but this cession appears to have been made

on the footing that the rights of property of the inhabitants were to be fully respected -

His Lordship then went on to say:

This principle is a usual one under British policy and law when such occupations take place. The general words of the cession are construed as having related primarily to sovereign rights only -

and it is probably unnecessary to develop that further at this point.

Professor O'Connell is then referred to in his work, "State Succession in Municipal and International Law", and again citing the classic decision in United States v Percheman. The references are then given; I will not trouble Your Honours with them now.

Going to page 20, the observations made by Chief Justice Marshall in that case are set out, and we draw attention in particular to what appears at the end of the first quotation at about point 5 of the page. Having referred to the modern usage of nations even in cases of conquest, His Honour then goes on to say:

If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?

And importantly:

Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change.

So there is a clear recognition that even if nothing had been said about it, if there had been no stipulation, those rights would have been unaffected. And in relation to the final quotation just above paragraph 3 of page 20 or our submission, might I make this observation: that when Chief Justice Marshall was saying what is set out there, he was, in our respectful submission, making it quite clear that he was speaking of the position at common law and the modern usage of nations which has become law; and the point was that the Treaty of Cession from Spain to the United States was in conformity with that principle. That is apparent from His Honour's reference to "this state of things" at page 87.

We then turn to deal with the common law historically, Blackstone and other authorities. We make submissions in relation to the acquired rights of aliens at page 24, and then at page 25 and beyond deal with our submissions as to the legislative and constitutional history of resource disposition and management in Western Australia, affirming this principle. Again, it is important to bear in mind as one goes through these submissions, we are always here talking about interests other than traditional rights and interests to the land. This respect is given to all other interests apart from those.

I will not trouble to take Your Honours through the various statutory provisions to which we have made reference in the following pages up to page 31. I might just mention one or two as illustrative. My learned friend, Mr Bartlett, as I have foreshadowed, will in due course be taking Your Honours through particular statutory provisions on a comparison of the rights of traditional usage and, of course, the same comparison obtains in relation also to native title.

So, if I might just generally make the broad submission that each of the statutory provisions to which reference has been made can clearly be seen, we would submit, as confirming and affirming and, indeed, implementing this constant recognition by the common law of other interests and according them full respect.

Can I come now to Part III at page 32. Perhaps before I do that I should make a further submission arising out of the learned Solicitor-General for Western Australia's arguments in relation to Oyekan. I think I have dealt with the point about the treaty, but it was, in our submission, because of the treaty in that case that the question arose, "What former rights of the inhabitants had been recognised by the Crown?",and it was in that regard that Lord Denning spoke of the guiding principle and we submit that use of words, that phraseology, is important. It is a guiding principle which was that the courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.

Now, in Mabo [No 2], as I have mentioned, Your Honour Justice Brennan at pages 54 to 57 declined to follow those earlier authorities and specifically Lord Dunedin's judgment in the Indian case referred to at page 788 of Oyekan which had held that no native rights survive the acquisition of sovereignty except those recognised.

In other words, recognition, positive recognition, was not necessary, and Your Honour Justice Brennan stated that the preferable rule - and again, in our submission, the wording is important:

The preferable rule.....is that a mere change in sovereignty does not extinguish native title to land.

On that broad issue we agree with and adopt the submissions advanced by my learned friend, Mr Castan, on behalf of Wororra and Yawuru, and as to the distinction of Southern Rhodesia, and we would submit in turn that no matter how it is dressed up - if I might use that phraseology - the arguments advanced on behalf of Western Australia on this are, in our respectful submission, in direct conflict with what this Court has already held in Mabo [No 2]. Otherwise, I will leave that question of extinguishment to Mr Bartlett, and simply refer, in support of our submissions, to the proposition that the common law accords and requires full respect according to tenor.

That brings me then to Part III, which is the tenor of native title, and that begins at page 32 of our written submissions.

In summary, it is our submission that it is the status of a right of interest which attracts the protection of the law; that native title is unique; that it is fundamental to Aboriginal traditional society and it is not of inferior status to non-Aboriginal rights or interests in land. The concept of native title, as we have been using the term, encompasses all traditional rights and interests in land of whatever kind or content; it is variable. It is a system of rights, perhaps, rather than a specific interest or title in any sense we might recognise or the common law might recognise. It does bear, in our respectful submission, a fundamental relationship to Aboriginal society.

The land is the history of the community and, indeed, its future. These things do not apply to common law interests in land; the sort of interests that we are accustomed to know and understand, but it is these considerations which, in our submission, demonstrate the status in Aboriginal society of, what we have been calling, native title.

TOOHEY J: I do not quite follow that, Mr Roberts-Smith. Are you putting "native title", in the sense that you are using it, as something which is not recognised by the common law?

MR ROBERTS-SMITH: No, certainly not. What we are submitting is that the common law recognises native title but, at the same time, diminishes native title. If I could, I suppose, encapsulate the whole of or arguments in this way: that diminishment is, in turn, overcome by the operation of the Racial Discrimination Act which affords again to native title equality before the law. That is, in substance, our proposition. The common law recognises native title but, at the same time, it diminishes it for entirely pragmatic and historical reasons.

McHUGH J: I have difficulty with this proposition. After all, property is not the thing; property is different from the.....and property is no more than what the law will recognise or protect from time to time, so it is those rights. They may be in relation to something, but it is those rights which constitute property. Now how can the common law, at the same time, recognise and diminish? It seems to me to be a contradiction in terms.

MR ROBERTS-SMITH: With respect, Your Honour, the content of native title, as this Court held in Mabo [No 2] is the traditional content. If one gives full respect to the traditional content, then one must accord that bundle of interests and rights, in our submission - and we will seek obviously to develop this, but if I could state it shortly now - the highest status within the traditional Aboriginal society. There is no greater bundle of rights or interests; there is no greater concept of interest in land, if I can use that terminology. The terminology we use perhaps does not well fit for these very reasons but if we can use them for the moment: in traditional Aboriginal society, the relationship to the land is supreme; there is no higher concept in terms of interest in relation to land.

TOOHEY J: But is it only in the power of the Crown to extinguish native title by alienation that you see the Racial Discrimination Act as having a role which impinges upon the common law?

MR ROBERTS-SMITH: No. Questions of compensation would clearly arise also.

TOOHEY J: You mean compensation for extinguishment or for something less perhaps?

MR ROBERTS-SMITH: Or diminution in some other respect, some interference.

TOOHEY J: Subject to what you are saying about the Racial Discrimination Act, do you have any quarrel with the definition of "native title" in the West Australian legislation, in terms of what you are now elaborating for us? It is page 6 of the statute.

MR ROBERTS-SMITH: The quarrel we would have with that is limited, I suppose, to the extent of the reference to the common law:

one or more rights or entitlements of a kind recognized by the common law -

If that is read as meaning Aboriginal rights or entitlements as recognised by the common law, then yes, we say that seeks to import into the Western Australian Act the diminished nature of Aboriginal title at common law. The diminution, in our respectful submission, is overcome by section 10 of the Racial Discrimination Act. Just as section 10 requires, in our respectful submission, accommodation of the common law, so too, by reason of that definition, all other things being equal, would it require accommodation here.

TOOHEY J: Would it be right to say that you are content with the common law's recognition of the existence of native title but the Racial Discrimination Act has a role to play where there is any - - -

MR ROBERTS-SMITH: Inequality before the law.

TOOHEY J: Or any diminution or extinction of that title at common law.

MR ROBERTS-SMITH: Where that can be characterised as a distinction resulting in inequality before the law pertaining to the title, yes.

TOOHEY J: Thank you.

BRENNAN J: That is one way of putting it, I suppose. The other way of putting it is that the common law recognises what native law and tradition recognises, but there is another consideration which deals with the defeasibility of native title, just as there are other laws which deal with the defeasibility of granted title, and it is those laws in respect of which you draw the comparison.

MR ROBERTS-SMITH: Yes, and those laws are not directed to interests which are predicated on race which can only be held by people of a particular race.

BRENNAN J: All of that has been canvassed in Mabo [No 1] and [No 2], has it not?

MR ROBERTS-SMITH: We would say so and we would say, though, that it is important for the purposes of the development of our argument here to emphasise that distinction between native title at common law and native title as protected by the Racial Discrimination Act. It is a fundamental part of our argument and the fundamental nature of it was, I suggest, illustrated by the exchanges which occurred between Your Honour Justice Deane, in particular, and my learned friend, Mr Castan, before lunch.

It is the requirement now imposed by the Racial Discrimination Act to give full respect according to tenor to traditional Aboriginal relationships to land that is the critical part of this, because that is where the failure has been by this legislation. We draw that distinction in terms of what is meant by native title and native title at common law at the top of page 32; that is, as I say, a very important distinction for our argument.

DEANE J: But, oddly enough, if section 12 of the Native Title Act be valid, you have to rely on section 7(1) to have the Racial Discrimination Act operating on what has become a type of statutory law pursuant to section 12.

MR ROBERTS-SMITH: And section 7(1) does exactly that, if section 12 is valid, yes. That is what it says it does, with respect, amongst other things, of course.

GAUDRON J: But would section 10(1) not have done it anyway, unless there was an implied repeal of 10(1) of the Racial Discrimination Act?

MR ROBERTS-SMITH: Yes, it would. In the absence of the Native Title Act section 10(1) would have done it and it would have operated on the common law. The fact that the common law is imported by section 12 into the Native Title Act, in whatever way that is achieved, does not change that position because the Native Title Act, itself, by virtue of section 7(1) is subject to the Racial Discrimination Act.

TOOHEY J: Where would you have fitted a common law recognition of native title into section 10(1)? What part of section 10(1) would it answer, a law of the Commonwealth or of a State or a territory?

MR ROBERTS-SMITH: If one takes the beneficial construction, of which I was arguing earlier, one could clearly argue it was a law of the Commonwealth, although I well understand the authorities which say a law of the Commonwealth means statute law. On the other hand, it may well be that in that situation the relevant protection is afforded not by section 10 but by section 9.

TOOHEY J: Yes.

MR ROBERTS-SMITH: But the point we make simply is that either way, however it is described, one of those provisions will operate to protect native title and to restore what we say is equality before the law, which is the key issue here.

Native title, of course as this Court declared in Mabo [No 2], once found is an entitlement as against the whole world, which connotes in rem relief and when one comes subsequently to look at the substituted regime, for example, the fact that native title, as protected by the RDA is enforceable, for example, by injunction, is an important distinction and that is why we make the point at page 32. So too at page 33 paragraph B we pick up the submission already made to some extent, that the source of native title is the traditional Aboriginal relationship with the land of the community or society under its laws or customs. Native title does not have its source in Crown grants. It is not subject to limitations or restrictions which might be imposed on leases of whatever kind, pastoral or otherwise. Its limitations, if any, its constraints and its content are to be found in the traditional Aboriginal law applicable to the community. Again, we deal with that at page 33 and over into page 34.

The unique nature of native title is dealt with in paragraph C, and I have just mentioned of course that the content of native title will vary with the nature of the traditional Aboriginal relationship with the land. Authorities are cited there in reference again to Your Honour Justice Brennan in Mabo [No 2], and in the middle of the page we make the submission that the content of native title, and again the content is distinct from its status, the content will necessarily vary and expand with the nature of the traditional relationship because the rights conferred by native title correspond to the Aboriginal laws, to those of the group in question. And as Your Honours Justice Deane and Gaudron acknowledged in Mabo [No 2] at page 88, the content of native title may, on one view, be equivalent to full ownership in our own understanding of the sense.

At page 35 we deal with the question of alienation. As I go through this Your Honours will appreciate what I am seeking to do is to set the stage, in particular for the comparison - first of all for the process of extinguishment and then of course for the comparison with the substituted rights. Page 35, native title can only be alienated in a manner consistent with the laws and customs of the particular people and the fact that it bears a fundamental relationship to Aboriginal society is dealt with at page 35, and over on to 36; that it is integral to the history of the society and its members is dealt with paragraph 5 on page 36, as is paragraph 6, the proposition that native title encompasses a profound spiritual element.

All of these matters, in our submission, are probably more than amply covered in much of the other material which has already been provided to Your Honours by other parties and, indeed, generally, but may we, in support of this bundle of propositions, refer Your Honours also to the additional materials which we have provided to the Court, dated 31 August 1994. Again, I will not trouble to take Your Honours through those now, but if I could just give the references to the portions we say are relevant to these propositions.

First of all there is Biskup, "Not Slaves Not Citizens, The Aboriginal Problem in Western Australia", 1898-1954, at page 26 of the materials, especially at page 27; again also Paul Seaman, "The Aboriginal Land Inquiry", Chapter 12 - History, page 54 of the materials, particularly paragraphs 12.4 to 12.7; then to Kolig, "The Noonkanbah Story", Part II, Chapter 1, "Sanctity of the Land". Obviously that "land" is not the land which we are litigating in the substantive action underlying these proceedings, but the point is none the less, in our submission, the same. The references to that material are at pages 71, 72 - perhaps I should just mention at page 72, for example, to give Your Honours the flavour of the sort of material we are relying on here, if I might quote at about point 5:

As long as the land remains intact, providing visible evidence for the truth of religious belief, it remains for the believer the vessel of purpose and meaning in life.

Page 77 on the right-hand page at about point 4:

The physical and the spiritual universe are not experienced as distinct. In the traditional, unquestioned scheme of things, spiritual existence, the land, nature and man form one indissoluble whole.

And the quotation goes on; I shall not read it, but we rely on that down to the paragraph which reads:

In the Aboriginal perspective natural species, natural phenomena and man are all part of the same social, moral and existential order. People and environment, which includes animals, plants and inanimate objects, can and do "compenetrate" each other (in Stanner's words), as they all partake in the same kind of spirituality.

There are similar different observations at page 78 and then pages 79 to 80. So too in the same text, Part III, Chapter 2, "Nature, Conservation and Mining", we refer Your Honours to the material at page 81 and pages 82 and 85.

For present purposes, if Your Honours please, aspects of that sort, those aspects of the tenor and content of native title, its relationship to the history and traditions and spirituality of the Martu peoples is pleaded in our amended statement of claim, paragraphs 2 to 5 and at pages 2 to 7 of the case stated book.

At the top of page 37, coming back now to our written submissions, we refer to Your Honour Justice Brennan in Re Toohey; Ex parte Meneling Station, and at the top of page 37 give a reference to the Australian Law Reports report of that. The Commonwealth Law Report reference is as follows: [1982] HCA 69; (1983) 158 CLR 327, and the quotation appears at pages 356 and 357. We also, in that case, refer Your Honours to the remainder of the more extensive quotation down to point 5 on page 357, and again from point 7 at page 357 to the top of page 358.

Against that background - and I appreciate to some extent I have really been enunciating what this Court has largely already recognised - but I have done so because it is, in our submission, particularly important to our scheme of submissions. We come to the proposition at page 37 and that native title is not inferior nor subordinate to other interests. The foundation for that proposition, I suppose, in one way, is in the traditional society itself, because traditional society, traditional Aboriginal society, never contemplated that the traditional relationship to land could be alienated except under the traditional laws or customs.

Nor, of course, could it ever contemplate that those interests were subordinate to non-Aboriginal interests. It is in that sense that we say, according to the traditional Aboriginal law and custom, native title is not inferior to nor subordinate to other interests. Because it is rooted entirely in a different legal framework, a traditional legal framework, there can be no true analogy. One cannot say it is equivalent to freehold or leasehold, or whatever the case may be. One cannot say that accurately. But when one looks at the question of status then, of course, it is a different thing.

One can say, if Aboriginal title in traditional law was the highest form of interest in the land, the relationship was the highest form of interest, use our unacceptable or inadequate word, then it has got to be equated, if with anything, with the highest form of interest in land in our own system of law. It is on that basis that we say full equality before the law requires recognition of that status in that way.

In Oneida Indian Nation v County of Oneida, [1974] USSC 15; (1975) 414 US 661, the Supreme Court dealt with the acquisition of sovereignty, holding that it was subject to the Indians' right of occupancy and predated the recognition of those rights by treaty, which incidentally in passing makes a point of course in response to the proposition of my learned friend, the Solicitor-General from Western Australia. The treaty merely recognised rights which had already been recognised, in our respectful submission. At page 80, the court noted that:

The Sante Fe case also reaffirmed prior decisions to the effect that a tribal right of occupancy, to be protected, need not be "based upon a treaty, statute, or other formal government action."

At page 85, pertinent to that point, the court said:

In the present case, however, the assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not insubstantial claim that federal law now protects, and has continuously protected from the formation of the United States, possessory rights to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.

Of course, in that case the court noted - and we submit it is apposite here - that in its jurisprudence, native title there is considered as sacred as the fee simple of the whites, and that is in essence our proposition in relation to status.

BRENNAN J: But there is no problem about that, is there? If you recognise native title at common law, as you recognise granted title at common law, the only distinction is that the Crown, since it granted the title, cannot recall that title because of the rule dealing with Crown grants. So that titles as such are recognised equally. The distinction lies in the rule which limits the exercise of sovereign power in the case of the Crown grants. So that the only equalisation that is effected by the Racial Discrimination Act is to limit the exercise of the sovereign power in respect of the recognised native title in the same way as a Crown grant at common law is protected against the exercise of sovereign power by a recall of the Crown grant.

MR ROBERTS-SMITH: If Your Honour means by that that the exercise of sovereign power then in relation to native title carries with it or requires the incidental procedures, entitlements, whatever they may be described as, which would apply to the extinguishment of a Crown grant, then we would say that is right. But that is certainly not in fact what the Western Australian Act does and it is not something which the common law did without the umbrella of the Racial Discrimination Act.

BRENNAN J: It seems to me that the common law did exactly what you say it ought to have done in a sense. It recognised native title - this is assuming the correctness of Mabo [No 2] - on exactly the same footing as it recognised titles which were derived by grant. The difference was that there was a rule of law governing the exercise of the Crown's power to recall a grant. There was no such rule with respect to native title. Then the Racial Discrimination Act intervenes and limits the exercise of that sovereign power in respect of native title in the same way as the common law limits it in relation to granted title.

MR ROBERTS-SMITH: I may be misunderstanding Your Honour but I think that is the position we seek to put.

BRENNAN J: If that is what you are seeking to put, it is put at pages 63 and 64 of Mabo [No 2].

MR ROBERTS-SMITH: Yes. We rely fundamentally on Mabo [No 2]. What we seek to draw from that, ultimately, is the establishment of these principles which we then say are not accommodated by the Western Australian legislation. That is where it is directed to. We are not complaining, with respect, of the common law in relation to native title under the umbrella of the Racial Discrimination Act. We have no complaint about that. What we are seeking to do is establish the requirements of equality before the law for our comparison then of, first of all, the general extinguishment of it and, then, the substituted regime by the Western Australian Act.

Could I just, perhaps, on that point of status, make this observation or this submission in relation to Delgamuukw v The Queen, (1993) 104 DLR (4th) 470, per Mr Justice Lambert who was dissenting but not on this issue. His Honour, at paragraph 665 said this:

it is not only aboriginal title to land that is sui generis, all aboriginal rights are sui generis. And it is not only in relation to aboriginal title that trying to describe the title in the terminology of common law tenures is both unnecessary and misleading; trying to describe aboriginal rights in terms of rigorous western jurisprudential analysis may well be equally unnecessary and misleading.

In particular, at paragraph 689, His Honour said, apropos again of this question of sui generis:

The meaning of sui generis is that the thing so described is in a class or category of its own. It does not mean that the class or category is in any respect inferior to or lesser than any other class or category.

In the scheme of our submissions, that brings us then, at page 39, to Part IV which is the part that Mr Bartlett will be dealing with and it is sufficient for me at this stage of my submissions to note that the point to be made is that whilst the common law concept of native title recognised the traditional Aboriginal relationship to the land, it also effected its racist diminishment in furtherance of settlement. That was derived, of course, from a pragmatic resolution of the problem by Chief Justice Marshall in Johnson v McIntosh, [1823] USSC 22; (1823) 8 Wheat 543, in which the Supreme Court of the United States resorted to a "new and different rule better adapted to the actual state of things". That is referred to in our submission at page 40 point 5.

Now, that the common law principles have on occasion historically evolved giving credence to racist considerations is neither surprising nor a novel proposition. The report of the Privy Council in In re Southern Rhodesia is but one example. In repudiating that aspect of it in Mabo[No 2], Your Honour Justice Brennan at page 42 point 5 expressly observed - in fact, I think that begins at just at the bottom of page 41:

If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

And, I suppose if one were to suggest that full respect were to be accorded to native title in the sort of sense we are submitting, then one would end up with something like the Native Title Act.

Apart from those brief submissions, might I leave that part to Mr Bartlett and ask Your Honours to move directly to Part V, which begins at page 43. We deal there with section 10 of the Racial Discrimination Act and what we submit is inconsistency with the State Act. And the first basis upon which it is inconsistent is that the general extinguishment of native title constitutes an arbitrary deprivation of property, arbitrary in the sense of unjust. In one sense perhaps the first point to be made about the universal extinguishment of traditional Aboriginal rights and interests in land throughout the State of Western Australia is that it is an extraordinary Act. It is, in our submission, quite inconceivable that it would ever be applied to non-Aboriginal rights and interests.

More specifically though, in terms of arbitrary deprivation of property, can I refer Your Honours simply to what appears at the text at page 43, the first point being that the extinguishment, the general extinguishment, denies the common law recognition of the source of native title in traditional laws and customs. That is something which has never been applied to rights and interests or titles which have their origin in other common law sources.

Secondly, it seeks to diminish native title by a change of description from "title" to "rights of traditional usage". Thirdly, we say it is discriminatory. And we refer to Your Honours Justices Brennan, Toohey and Gaudron in Mabo [No 1] at page 215, and it is discriminatory not only because it abrogates only those rights and interests whose source is in Aboriginal custom and tradition, in our submission, but because, at the same time, it expressly enhances all other property rights and interests whose source is not in Aboriginal tradition and custom, and that is done, of course, by section 5(1) of the Act.

That sort of extinguishment was referred to by Your Honour Justice Deane in Mabo [No 1] at page 231 point 5. What this Act does do, in generally extinguishing native title, is treat the holders of traditional Aboriginal interests differently to all others and it does so in a way which is unjust and arbitrary and it further disadvantages and demeans a racial group who have historically been discriminated against and disadvantaged in Western Australia. That again brings me back, with respect, to the submissions made, which I will not recapitulate here, about the effect and the nature of discrimination. But it is in this context, and for this reason that we referred to that earlier.

There is further material in our additional materials which also goes to this: the traditional disadvantage and discrimination against Aboriginal people in Western Australia and apropos of that, in our materials, might I refer Your Honours simply to the article by Jack Davis, "The First 150 Years from Aborigines of the West" - that is pages 2 to 5 of the materials; to Professor Elkin, "Aboriginal European Relations in Western Australia - An Historical and Personal Record", pages 6 to 25 of the materials, and generally to Biskup, Seaman and Kolig, to which I have already made reference. Now, those references we submit, with respect, support our contention at paragraph 3 on page 43 that the group of people to whom this law is directed have traditionally been disadvantaged and discriminated against, and that is an important element of the further discrimination which is inherent in this legislation.

So, too, in our submission, it sacrifices racial equality to public convenience. The reason for the legislation is said to be to put Aboriginal interests in a similar footing to others but that, in our submission, the way in which that has been done, the denigration of the interest, the diminishment of it even from its native title at common law content, all of that, in our submission, was quite unnecessary. To pick up the point raised by Your Honour Justice Dawson with my learned friend, Mr Castan this morning, the short answer to this, from the State's point of view, dealing with our paragraphs 4 and 5 here, could simply have been for the State to use the term "native title" and import that into the existing title registration system, the existing land management system.

Now, if that had been done without any adverse diminishment or impact upon the native title interest, the traditional interest, then the public objective of importing or putting Aboriginal titles on a statutory basis would have been a perfectly rational and acceptable solution. That is what, at least in part, the Act says it is about. But of course we say whilst in the abstract had it been done that way it would have been all right, the way it is done is entirely discriminatory.

The fact is, furthermore, that rights of traditional usage are not integrated into a single system within the State. The procedures governing rights of traditional usage are distinct from those which are provided for all other titles, and they are administered by a responsible Minister who is different, for example, from the Minister for Lands, or the Minister for Mines, and so on. So it is actually in fact dealt with in a different way in any event.

Paragraph 6 at page 44 raises what we submit, again, is a particularly important consideration in that the general extinguishment is effected, with no procedure for ascertaining who the native title holders are or were, the nature of their interest, no procedures for notifying them, no procedures for consultation or negotiation. General extinguishment was simply effected by the Act. Titles which existed, interests which existed at common law were simply extinguished.

They were replaced by a different regime, certainly, and we will deal with that in Mr Bartlett's submissions, but they were extinguished without any of these processes, without any consultation and without any procedure for ascertaining in fact who they were and what those interests were. We refer in that regard to what Your Honour Justice Deane said in Mabo [No 1], at pages 231 point 10 to 232 point 2. So too, at paragraph 7 on that page, as Your Honours will see, and as has already been mentioned in these proceedings, no compensation is payable for the general extinguishment of native title. As my learned friend Mr Castan said, that is probably because they see that being achieved by replacement with the substituted regime. As I say, we will deal with that.

But if I might refer to a comment made by Mr Ken Colbung in Aborigines of the West - it is not in Your Honours' material because the article is otherwise irrelevant. At page 101, Mr Colbung makes the observation that being taken care of is no compensation for the loss or destruction of their land.

At page 45 we then go on to talk about the Western Australian Act not affording full respect to the tenor of the traditional Aboriginal relationship to land in so far as it subordinates and extinguishes or impairs native title to Crown grants issued between 31 October 1975, and the commencement of the Act. It is not necessary, I think, for me to go through what appears there, it is self-evident.

Then at C we again refer to the Act not affording full respect to the unique tenor of the traditional Aboriginal relationship to land, what we have been calling, for the purposes of this, native title because there is no requirement to obtain consent and that that is a deficiency which applies both in relation to the extinguishment of native title holders to the general extinguishment and to the extinguishment of rights and traditional usage. Of course, in making that submission in our reference to the extinguishment of common law we are, again, talking of native title rights and interests as protected by the Racial Discrimination Act and our submission is that full respect in that context requires consent.

It is our submission that it is impossible to contend that the tenor of a unique interest in land is respected if it can be extinguished without consent or without compensation, and there has been, we would submit, an increasing acceptance in other jurisdictions that acknowledgment of the need for consent is the appropriate response for the unique tenor of native title. We go over then in the following pages at page 46 and onwards to demonstrate the way in which the requirement or the need for consent has been recognised in other jurisdictions, at common law, at other common law jurisdictions, quite apart from the protection afforded by legislation such as the Racial Discrimination Act. We refer to those cases. At the bottom of page 47 after a reference to Symonds there is a quotation there that His Honour Justice Chapman stated:

"Whatever may be the opinion of jurists as to the strength or weakness of the Native title ... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers".

In passing, I note what His Honour said a few lines later at page 390.8:

It follows from what has been said, that in solemnly guaranteeing the Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of Waitangi, confirmed by the Charter of the Colony, does not assert either in doctrine or in practice any thing new and unsettled.

Which again, we say, is in part a response to my learned Solicitor-General from Western Australia.

Likewise we refer to Tamaki v Baker, and might I add to that a reference to the New Zealand case of Te Runanganui o Te Ika Whenua Incorporated Society v Attorney General, [1993] NZCA 218; (1994) 2 NZLR 20, and particularly at pages 23 to 24. At the bottom of page 23 the judgment of the court deals with the nature of "Aboriginal title" and its continuation. Pointing out that it survives sovereignty:

the radical title is subject to the existing native rights -

on the top of page 24.

It has been authoritatively said that they cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers -

which is a reference Symonds which I have just mentioned, and might I point out there at about line 18 the quotation:

It may be that the requirement of free consent has at times to yield to the necessity of the compulsory acquisition of land or other property for specific public purposes which is recognised in many societies; but there is an assumption that, on any extinguishment of the aboriginal title, proper compensation will be paid, as stated by Lord Denning -

referring then to Adeyinka Oyekan. The point we make of this is this aspect of consent, this requirement for consent here has developed in common law jurisdictions quite independently of any protective umbrella such as the Racial Discrimination Act. In our submission, when one puts that umbrella, that legislative umbrella over the concept of native title at common law in Australia, the position of course is far stronger. As against that then we have this general extinguishment of native title with no consultation and no consent and, likewise, no requirement for consent in extinguishment of rights of traditional usage.

It brings me to page 49. I referred at page 48 again to Delgamuukw, the other authorities, but our contention throughout those pages and the authorities referred to in them is that just as the content of native title is itself evolutionary, so too is the protection afforded to it by the common law, and the authorities indicate the strengthening requirement at common law for consent and compensation.

At page 49 we come to Part D which deals with the substituted regime, and as I have foreshadowed, that is an aspect with which Mr Bartlett will deal. So can I take Your Honours directly to page 67 which is where we summarise our conclusion in relation to the submissions with respect to section 10 of the Racial Discrimination Act. The propositions are there summarised. The general extinguishment of native title effected by section 7 is inconsistent with section 10; the extinguishment and impairment effected by section 5 is inconsistent with section 10; the failure of the Act to require consent is inconsistent with section 10, and the regime of rights of traditional usage is inconsistent with section 10. And if any or all of those submissions is upheld, in our submission, then the Western Australian Act must fail in its entirety because those provisions are not severable. We understand there is perhaps no real argument about that, and rather than canvass it we will therefore pass on.

Finally, I come to question 4. The question is posed at page 68 of our material, and the submissions are made at page 70 and thereafter. We deal first with section 7 of the Western Australian Act, and to assist Your Honours we have sought to set out in the submissions themselves as much of the textual material as is necessary. Again, in light of the approach that has been taken by the State in relation to that, it is perhaps unnecessary for me to deal further with it here other than simply to rely upon the written submissions.

DEANE J: Mr Roberts-Smith, can I ask you this: what order in dealing with inconsistency do you say we should take? In other words, do you agree with the Solicitor for the Commonwealth that if the Native Title Act is wholly valid, including section 11(2), one never has to deal with the question whether the Western Australian Act was in any event inconsistent with the Racial Discrimination Act?

MR ROBERTS-SMITH: We would not put it quite that way. We would not say it is not necessary to deal with it, but we would say the effect of the inconsistency is to totally invalidate the Western Australian Act. But we would submit, and we would submit strongly, that the Western Australian Act should first be looked at against the Racial Discrimination Act because, in our submission, the effect of the Racial Discrimination Act was that the Western Australian Act never became operative, and that it is still inconsistent totally, of course, in our submission, with the Native Title Act, but it is an inoperative Act whose invalidity is merely reinforced by the provisions of the Native Title Act. If the Racial Discrimination Act were repealed, then its inconsistency with the Native Title Act, of course, would be critical. If, on the other hand the Native Title Act were repealed, its inconsistency with the Racial Discrimination Act would be critical.

DEANE J: I can see that that might be a very interesting way of approaching it, but if we were to conclude that the Native Title Act was wholly valid, which is something the Court must address anyway and, if a consequence of that was that the Western Australian Act was necessarily invalid, why should we then embark on the exercise of examining whether the Western Australian Act was invalid by reason of independent inconsistency with the Racial Discrimination Act?

MR ROBERTS-SMITH: With respect, there are two responses to that: the first is, the issue of the Racial Discrimination Act is posed in the questions and it cannot be said that they are unnecessary to answer, in our respectful submission, merely because of an answer in respect of the Native Title Act questions.

DEANE J: Well, it could be said that we see no good reason for answering that question.

MR ROBERTS-SMITH: The good reason is, first of all, the point that I have already mentioned, that we are not talking about invalidity in the sense that my learned friend, Mr Jackson, sought to deal with it earlier in the sense of total and permanent invalidity, we are talking about non-operational effect. So that if the Native Title Act were to be repealed, then, as I have said, the question of the Racial Discrimination Act would immediately be a live issue and one which this Court would have had an opportunity to deal with in these proceedings, squarely raised, which it had not been dealt with and which would then have to be relitigated, no doubt, and that, in our respectful submission, is a very good reason for dealing with it.

The second point has to do with the matter raised by Justice Brennan earlier in that there may well have been rights vested under the Western Australian legislation which would be divested and raise all sorts of other issues about compensation on just terms, and perhaps other complications as well, if this matter is decided only on the basis of the questions that go to the Native Title Act. That problem is entirely avoided if, at the same time, Your Honours deal with the question of the Racial Discrimination Act, and that is our principal submission, that the Western Australian Act has always been inoperative from the very moment it was signed into law. It is a valid law in the State sense, it is just inoperative; but it has always been inoperative, in our submission, because it was always inconsistent with the Racial Discrimination Act.

As to that, might I simply point out that our submissions then, as to section 7, are dealt with at pages 81 and following, and we then come again to the question of severability and again make no further submissions about that other than what is in our written submissions. But we reiterate in conclusion then that, in our submission, the Western Australian Act is inconsistent with both the Native Title Act and the Racial Discrimination Act. We emphasise that the Racial Discrimination Act operated on it first via section 109 of the Constitution or, I suppose it is more accurate to put it the other way, section 109 of the Constitution operated on the Western Australian Act by virtue of its inconsistency with the Racial Discrimination Act.

For the reasons which we have submitted and upon which Mr Bartlett will elaborate in respect of the extinguishment and the substituted regime, it is our submission that the Western Australian Act is one further illustration of the continuing lack of regard and lack of respect which has historically been shown in Western Australia for the rights and interests of Aboriginal people, especially in relation to land and its practical effect, if valid, would be the continuation of discrimination based on race, and a further denial to Aboriginal people of equality before the law. If Your Honours please.

MASON CJ: Yes, Mr Bartlett?

MR BARTLETT: Your Honours, I am addressing three particular aspects of this case. Firstly, I will look to the question of extinguishment in Western Australia and of course our submission is that there has been no general extinguishment at the time of settlement or at any time prior to 2 December 1993, when it might have been effected by the WA Act but, of course, our submission is that that Act is invalid as contrary to the Racial Discrimination Act.

The second aspect I will be looking at is the suggestion that native title at common law effects a denial of equality before the law, which denial was effected in the interests of the settlement of Western Australia, which denial was only modified by the Racial Discrimination Act in 1975 and those concepts, which I will examine in point 1 and 2, are intimately related to one another.

Thirdly, I will examine the substituted regime, and it will be submitted, Your Honours, that that regime effectively perpetuates the common law regime which was in effect in Western Australia from 1828 to 1975.

So, if I may, I will turn to the initial aspect, the question of extinguishment in Western Australia. In that regard I would like to hand up a submission dealing with the initial aspect of the authorities which are pertinent. These authorities bear upon the question of the relevance of cases from the rest of the common law world, in particular Canada, New Zealand and the United States because, of course, it does appear from some of the submissions of Western Australia that it is entirely different from anywhere in the rest of the common law world.

The initial aspect of those submissions emphasised the proposition that Australia, and in particular Western Australia, is a territory acquired by settlement. I believe the wrong submission was provided to the Court. It is not headed Relevance of Cases, Your Honours? No. With respect, I believe the wrong submission was handed up. I apologise, Your Honours.

This submission does begin with the proposition that Western Australia, like the other territories in question, was acquired by settlement. My authority for that particular proposition, with respect to Western Australia is, in fact, found in the historical materials attached to the volume which we submitted headed, unfortunately, Additional Questions 1A and 1B; it should, of course, be Questions 1A and 1B.

I will not ask you to turn to the particular portion but it was the instructions from the Secretary of State for the Colonies which accompanied the instructions under the Royal Sign Manual, which are the crucial instructions in connection with the establishment of Western Australia, and they declare, in the course of explaining the instructions, that, of course, Western Australia is a territory acquired by occupancy and there are certain consequences that flow from that in connection with the constitutional structure of Western Australia.

I take it, therefore, it is suggested, that these jurisdictions which are all regarded in the main part as acquired by settlement are particularly pertinent to the question of the nature of native title and its extinguishment. I also take it from the judgment in Mabo [No 2] that the Court did not suggest that Australia was not acquired by settlement.

The second proposition that is advanced in the submission is that of lesser direct relevance, though not of nil relevance but of lesser direct relevance, are cases such as In Re Southern Rhodesia, which are concerned with the acquisition of territory by conquest or cession, the reason for that being is the constitutional principles and the introduction of law principles are very different. That, of course, has profound implications for the consequences that flow to the inhabitants of the territory which is acquired.

The third proposition suggests with respect to extinguishment, and why it is that those other jurisdictions provide a useful source of comparative jurisprudence, is that all of those jurisdictions have adopted essentially the same principles with respect to native title at common law. In particular, they have all sanctioned the principle that native title may be extinguished by inconsistent Crown grant without compensation. Of course, the case that tops the list with respect to Australia, Your Honours, is Mabo [No 2]. I have only provided two cases with respect to the United States. It could be a list of 20 or 30 and also the list with respect to Canada could be longer as well, but those are the authorities that establish that proposition with respect to all of those jurisdictions, including of course New Zealand.

Turning to the Australian cases that have considered the question of native title, its nature and extinguishment, they are, in my understanding, essentially two: the case of Milirrpum v Nabalco, where Mr Justice Blackburn made it very clear that he thought crucial to the determination was the jurisprudence from the United States, Canada and New Zealand and cited them at considerable length. Also, with respect, Your Honours, in Mabo [No 2], it is my impression, as I have cited somewhat tediously, the references to Canadian, United States and New Zealand material was taken with considerable weight by Your Honours, as I have set out on that page under proposition 4.

It may be of interest to Your Honours, in turning to proposition 5, that the courts in these other jurisdictions have found your decision in Mabo [No 2] to be of considerable significance, those two cases of course being Delgamuukw v The Queen in right of British Columbia in the British Columbia Court of Appeal, and the case of Te Runangonui v Attorney-General in the New Zealand Court of Appeal of December last year.

Indeed, if I tern to the sixth proposition with respect to those cases. the State of Western Australia, as I read their written submissions, at paragraph E3 -14 recites those propositions of law and those authorities at considerable length. Even with respect to the recent submission of last Friday, those submissions begin with a reference to Delgamuukw and end with a reference to the case of Calder v Attorney-General for British Colombia. It does appear that the State does consider those cases to be of significance.

Proposition 7 states the straight-forward proposition that the application of the same principles in difference circumstances may lead to different results. There is, of course, no argument about that proposition, but those differences should only arise, it is submitted, when those differences are relevant. And it is suggested that the differences which were pointed to by the defendant in this case are not relevant. If one turns to Canada, and I will attempt to be brief with respect to these matters, one point of distinction alluded to was section 35 of the Constitution Act 1982 of Canada. That section recognises existing rights of Aboriginal people. The jurisprudence with respect to native title in Canada established the concept and its relationship to extinguishment prior to 1982, and it is there set forth. It is moreover self evident in the language of section 35 that it does only protect existing rights.

The suggestion was also made that somehow Canada was entirely different from Australia with respect to the way in which reserves were set apart. It is submitted to the contrary, Your Honours, that that difference does not occur, particularly it does not occur with respect to British Colombia. In British Colombia there are no treaties between the provincial government and the Aboriginal people. Almost all reserves in British Colombia have been set apart by Order in Council.

It should also be pointed out that the three cases regarded of particular significance in that jurisdiction, Calder, Delgamuukw, and Guerin v The Queen, cited at the top of that page, all concerned lands on mainland British Columbia, and it is suggested that British Columbia does afford a very close parallel to the circumstances of Western Australia.

The United States is the other jurisdiction which it is suggested has very different circumstances. Again it is suggested that the United States does not have that different a history which should be applicable with respect to Australia. It seemed the suggestion was made that all lands were set apart by treaty. That is certainly not the case, which is why you have this rather tedious attachment to this material I have handed up headed, "Executive Order Reservations", which sets out in the almost illegible footnote which is in very tiny print, some of the Executive Order Reservations in the United States, the Executive Order being that of the President, and they are the equivalent, of course, to Order in Council Reservations in Australia and Canada.

There is also reference made to the United States v Santa Fe Pacific Railroad Co by the State, and the suggestion is made that that is a case concerning a treaty. There is no treaty in United States v Santa Fe Pacific Railroad. It concerned in part a reservation set apart by Executive Order, and in part it concerned native title lands not part of any reservation.

If we turn to New Zealand, another jurisdiction was said to have relevant distinguishing circumstances. The relevant distinguishing circumstance pointed to, Your Honours, was the Treaty of Waitangi. But in looking at the case of The Queen v Symonds, and the reference that is there made to that decision which I quote, the authority for the approach adopted in that case, the foundation case with respect to native title in New Zealand refers to the intercourse of civilised nations, and especially of Great Britain, with the aboriginal natives of America and other countries during the last two centuries. It was based upon an examination of imperial policy.

It is also pointed out that, in fact, the treaty of Waitangi is not enforceable in law. It has no legal status in law except to the extent it has been given statutory implementation. Accordingly, it is suggested that the law from all of those jurisdictions does bear upon the question of native title in Australia and does bear upon the question of extinguishment of native title in Australia, especially Western Australia because it is a settled jurisdiction.

As you now have it, the other material that was handed up to you, I hope, was headed "A Response to the Revised Argument of the State of Western Australia Respecting Extinguishment Presented on September 9th". This was made necessary despite the somewhat voluminous submission you already have from the plaintiffs with respect to this matter because it is suggested that the basis upon which the argument was presented with respect to extinguishment was changed quite considerably between the written submissions and the oral submissions.

It is suggested that it is settled more, Your Honours, than in a settled jurisdiction; a clear and plain intention on the part of the Crown must be shown in order to extinguish native title. There is no contrary authority whatever. The requirement of a clear and plain intention is not an evidentiary inquiry, Your Honours. It is not just a question of ascertaining what the intention is. The intention must be shown to be clear and plain in order to extinguish native title.

My learned friend, Mr Roberts-Smith, has already referred to the case of In re Southern Rhodesia and I will not belabour the point, but I would suggest to Your Honours, that it is possible to distinguish that case, as I have endeavoured to do on the second page of the submission, by pointing to the particular circumstances involved. It was not, of course, a case of acquisition of territory by settlement. It involved a conquest of what is now Zimbabwe, and what was involved, as the reference just over half-way down that page indicates, was a disposition to the British South Africa Company at the same time that lands were set aside for the aboriginal people of Zimbabwe. It is suggested those circumstances are very far removed from the circumstances in which Western Australia was settled.

Turning, if I may, Your Honours, to the rationale of the requirement of clear and plain intention, because that does require us to consider why it is not merely an evidentiary inquiry, I have endeavoured, at the bottom of page 2 and at the top of page 3, though there is unfortunately an omission at the top of page 3, but if we look at the bottom of page 2 initially, the fundamental reason why the common law demanded a clear and plain intention to extinguish was because of the presumption that existing rights were not to be displaced lightly. They could, in the settlement of a jurisdiction, be displaced but it was something that required a clear and plain intention.

The other reason which may also be found, and perhaps it might be appropriate to take Your Honours, if I may, to the volume I refer to - somewhat thick volume - at page 7 a paragraph which is headed paragraph 3.10, that paragraph contains an attempt to sum up the rationale and the reasons which have been proffered by various jurisdictions for the requirement for clear and plain intention, and I have already referred to one of those reasons, which is there, No 4, but it is the refusal by the common law to displace existing rights lightly.

The other reasons are referred to in connection with their authorities and in the previous pages those authorities are specified and indicated with appropriate page references. But, they include the reference by Justice Brennan to the significance of loss suffered by Aboriginal people upon extinguishment, that being a reason for the requirement of clear and plain intention. The American jurisprudence, or I should say the United States jurisprudence, has referred in particular to the dependent position of Aboriginal people as being a reason why one requires a clear and plain intention, and the other reason indicated is that the context of the circumstances in which settlement of territories acquired by settlement has taken place has suggested the need for such a requirement.

That requirement, which as I would suggest is very much supported by those rationales, leads to, if I may turn to the submission that was handed up to Your Honours, proposition 3. The onus of showing such clear and plain intention is on the party asserting it. In this particular case, it is the State. At pages 10 to 12 - - -

DEANE J: What are the missing words at the top of the page?

MR BARTLETT: My apologies, Your Honours. The missing words are a little ii followed by "the significance of the loss suffered by Aboriginal people". Turning to the question of onus, which it is submitted flows from the rationale I have endeavoured to outline, the authorities in question are set out at pages 10 to 12 of the larger material and they are almost entirely consistent or, I should say, they are consistent with respect to the question of general or blanket extinguishment of native title, that the onus lies on the party asserting it. As I say, it is suggested that this is a consequence of the rationale that the common law is concerned not to displace existing rights lightly.

The fourth proposition is one related to a matter of constitutional law but is, it is suggested, relatively self-evident that the clear and plain intention involved is the intention of the sovereign power. In the case of Western Australia, the sovereign power of course was, as set out on page 13 of the volume of materials, the imperial government. They remained the sovereign power with respect to lands, at least until 1890, and with Aboriginal peoples and their lands, they perhaps remained the sovereign power until 1905 when power was effectively returned to the local government.

So the question becomes in determining whether or not native title was extinguished in Western Australia was whether the imperial government intended, clearly and plainly, to extinguish native title at the time of settlement, and that is why it is submitted that the instructions under the Royal Sign Manual are of very great significance. Those instructions being issued in 1831 to Governor Stirling at the same time that Governor Stirling was appointed governor.

If I can turn on the material that was handed up to you, Your Honours, I have endeavoured to abbreviate considerably the references that I would otherwise make to the larger material, but that proposition is, of course, that the Crown, that is the imperial government, manifested no clear and plain intention to extinguish native title. In divining that clear and plain intention, which the common law looks for, I think it critical, it is suggested, Your Honours, that one examines the reality of the settlement of Western Australia in its early days. In making the observations that are set forth on page 4, reliance has been placed upon the materials provided by the State of Western Australia. In particular, reliance has been placed upon the writings of Crowley and Biskup, which are found in various volumes of the State materials, and I have there provided the reference.

In particular it is to be noted, it is suggested, Your Honours, that Western Australia was a settlement of very small population, many of whom sought to remove immediately to New South Wales. The population in January 1831 was 1500; 14 more people arrived in 1832. By 1848 the population, 20 years later, had grown only to 4622. For the first 50 years of its existence this place which is now known as Western Australia was then known as the Swan River Colony. At the same time, the Aboriginal population, on the basis of the historical materials provided by the State, was 55,000.

The State, as I understand it, seeks to assert, it is suggested, that the actions, proclamations and writings of local officials were sufficient to extinguish native title from this small settlement on the west coast of Western Australia throughout the entire colony, including the western desert and including the Kimberleys. It is suggested, given the reality of the initial settlement, that it is not at all possible to divine any clear and plain intention to extinguish native title.

If I may take Your Honours to the references in the larger material - - -

BRENNAN J: When were there any expeditions to the western desert or the Kimberley?

MR BARTLETT: As I understand it, Your Honour, expeditions did take place towards the middle of the 19th century and continued until the latter part of the 19th century and development of the Kimberley did take place in the sense of initial cattle herds being provided there in the latter part of the 19th century. But it is suggested, Your Honour, that that is far from sufficient from providing a clear and plain intention on the part of the imperial government to extinguish native title. I should emphasise that it is submitted that it is the imperial government who must be shown to possess this clear and plain intention to extinguish, at least until 1890 and, it is suggested, probably until 1905.

BRENNAN J: What is the significance of 1905? I have missed it, I am afraid.

MR BARTLETT: In 1890, Your Honour, the Constitution Act sought to provide for the entrenchment of Aboriginal rights with respect to reserves and with respect to what has come to be known as the section 70 incident in the Western Australian Constitution, the provision for one per cent of the revenue. It was not until 1905 that the control over reserves, the control over the Aborigines Protection Board was returned to the Governor in Council. Between 1890 and 1905, Aboriginal rights were essentially constitutionally protected in Western Australia.

Perhaps if I may refer to that now, there are volumes of material in here which deal with that question. There is a section of the explanation of this question which deals with that question. It becomes apparent that the imperial government did not trust the local government to protect Aboriginal interests.

If I may go back to the materials which commence at page 14, under three heads if I may address it, Your Honours namely, initially, the objectives of settlement of Western Australia; secondly, the establishment of the settlement of Western Australia; and, thirdly, the initial provision for the disposition of lands and resources in Western Australia.

Turning to the objectives of settlement. In the submissions of Western Australia there are references to it being a commercial venture, there are references to it being like Pennsylvania and Georgia and there are references to the need to provide land to settlers. The submissions of the State also seem to distance the initial settlement from the circumstances of New South Wales.

If one looks at page 14 you will note - 14 and 15, but looking near the top of page 15, the third and fourth line down - that the initial informal instructions, not the regular or final instructions which are of constitutional significance, but the initial informal instructions referred to in the third line on page 15, instructed Captain Stirling to adhere as closely as possible to the instructions issued three years previously to Governor Darling of New South Wales.

This pattern was of course repeated when we come to the imperial instructions issued under the

Royal Sign Manual. If one turns to the circumstances of British Columbia, which does of course involve the authority of the Delgamuukw case, British Columbia was never a penal colony; it was settled as a commercial venture initially by the Hudson Bay Company and subsequently was settled in order to secure land for settlers. In Delgamuukw - and the reference is indicated some three quarters of the way down page 15 - quoting from the judgment of Mr Justice Macfarlane with whom Mr Justice Taggart concurred, it is there suggested the colony was established in 1858 "to attract permanent settlers and to establish them on the land. The urgent question was settlement and the establishment of British authority".

In the final part of that paragraph, Mr Justice Macfarlane: "One should assume that the object was to achieve the desired results with as little disruption as possible, and without affecting accrued rights and existing status any more than was necessary". British Columbia v the Delgamuukw decision would seem to be a powerful authority contrary to the arguments of the State.

The third reference at the bottom of page 15 is to Pennsylvania and Georgia. It has been quite clearly held by the United States Supreme Court that both of those jurisdictions were subject to native title.

DEANE J: Has there been any appeal in the British Columbian case to the Supreme Court?

MR BARTLETT: An appeal has been filed and leave has been given, but it has not been heard, Your Honour.

DEANE J: I see, good. Thank you.

MR BARTLETT: If I turn to the second aspect of the initial settlement and establishment of Western Australia, point B at the bottom of page 16, I am there examining the question of the associated proclamations on instructions other than those dealing with land. An attempt to meet the arguments of the State with respect to the suggestion that these writings and instructions somehow extinguish native title. It is suggested that by and large they rest on the premise that native title at common law does require recognition or preservation.

If one looks to Part IV of these materials, which I do not ask you to go to now, there is authority replete which indicates that Your Honours have also reached the same conclusion with respect to that native title does not require recognition or preservation. That put aside, the only really substantial argument remaining to the State is that found at page 19, where they endeavour to suggest that New South Wales was entirely different from Western Australia. In doing so, of course, they do that in conjunction with their argument that Australia is entirely different from the rest of the settled world, and the rest of the British Empire.

In making this argument they seek to distance themselves from New South Wales. But as I have indicated there, the instructions issued to Governor Darling under the Royal Sign Manual in 1825 and those issued to Governor Stirling in 1831 are almost identical. The only wording of distinction relates to particular developments in New South Wales which have no bearing whatever on the question of Aboriginal rights to land or land at all. For that purpose, Your Honours, if you wish to, you may turn to the materials at the end of this volume which do contain all of the instructions issued to the governors of New South Wales and the imperial instructions under the Royal Sign Manual issued to Governor Stirling.

At the top of page 5 of the material I handed up to Your Honours entitled, "The Provision for disposition of all lands and resources upon the establishment of the Colony of Western Australia did not effect a general extinguishment": in Part VII of the larger materials, that point was made at great length and many authorities are cited from all jurisdictions which it would seem all to concur in that particular conclusion.

But if I may take Your Honours to one particular reference found at page 29 in order that I can point out one minor correction, but also to emphasise the relationship of Western Australia to British Columbia. At the top of page 29 is headed the comment, "The express declaration that title to all lands and resources is vested in the Crown". That is in the context that that express declaration does not extinguish native title, does not manifest a clear and plain intention to extinguish.

The correction I must make is that found in the quotation from the proclamation issued in the Colony of British Columbia in 1859. It refers there to "rivers"; it should, of course, read "resources". But the full text of this aspect of the proclamation is to the following effect:

"All the lands in British Columbia, and all the resources and minerals therein, belong to the Crown in fee."

The Supreme Court of Canada has considered this question in Calder, and the British Columbia Court of Appeal has considered this question in Delgamuukw. The Court of Appeal in Delgamuukw in its 1992 decision which is referred to repeatedly through these materials, and in particular in the preceding pages, held that such was not enough to manifest a clear and plain intention to extinguish native title in the circumstances of the settlement of British Columbia which I would suggest to Your Honours are parallel to those in Western Australia.

On page 29, under the heading of The Establishment of the Colony of Western Australia, I again examine the imperial instructions, and perhaps I do not need to belabour the point that they are identical to New South Wales, but if I could ask Your Honours to turn to page 33, one there finds in paragraph 745 the suggestion that this result that the settlement, which was initially established in Western Australia, did not extinguish native title in a blanket or general form at that time, is entirely appropriate to the result and reality of Western Australia at that time, and today, Your Honours.

One of the submissions of Western Australia found in H172, relating to their constitutional law arguments, suggests that up to 93 per cent of Western Australia has yet to be the subject of a grant which is inconsistent with native title. That surely suggests the reality of settlement has been such that it has not affected the general or blanket extinguishment of native title.

On page 5 of the material handed to Your Honours there is also a response to a question raised by Your Honour the Chief Justice, and that arises out of material which is referred to at page 41 of this larger material. The question was raised concerning a paragraph in a communication from Governor Hutt to Lord Glenelg, the Secretary of State for the Colonies, in which Governor Hutt offers the opinion that the Aboriginal rights were extinguished long ago, were overridden long ago, I am not quoting directly, Your Honours.

I want to indicate what that context is. The context is as indicated in the material handed up to you. What had happened was that the Select Committee of the House of Commons on Aboriginal peoples and British settlements had reported, and one of their recommendations, and the recommendations are set out in this material, had been the appointment of protectors whose duties would include the protection of the lands of Aboriginal people. Accordingly, this report was sent to Governor Hutt and also to the governor of New South Wales, but initially Governor Hutt was merely sent a copy of the communication explaining the recommendations to the governor of New South Wales and, in particular, the duties of the protectors were set out. Just before half-way down page 5 I have quoted from that reference. As I say it is found in Appendix D of these materials. The duties of the protectors must include:

"He must watch over the rights and interests of the natives, protect them as far as he can by his personal exertions and influence, from any encroachments on their property -

Governor Hutt responded in the manner that is found in the paragraph to which His Honour the Chief Justice made reference in E60 of WA 1, by suggesting that their rights had already been extinguished. But I refer you to the language that followed immediately that, that is:

"But is it not premature, if not totally impracticable to make the British law applicable to such a state of things..."

It is suggested of course that British law was applicable. All Governor Hutt was doing was reacting, as local officials did and have done since in Western Australia, is to put aside the rights of Aboriginal people with respect to land.

I will conclude there, Your Honours, with respect to extinguishment. The rest of the material does address the subsequent history of Western Australia. It is suggested it clearly supports the notion there was no manifestation of a clear and plain intention to extinguish native title.

MASON CJ: Can I ask you how long you will take now, Mr Bartlett?

MR BARTLETT: It is suggested probably an hour and a half to two, with respect to the remaining matters I must address, Your Honour.

MASON CJ: In those circumstances we will adjourn until 10 o'clock tomorrow.

AT 4.29 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 15 SEPTEMBER 1994