State of Queensland & Anor v Wik Peoples & Ors B8/1996 [1996] HCATrans 163 (15 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B8 of 1996

B e t w e e n -

STATE OF QUEENSLAND and ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Applicants

and

THE WIK PEOPLES

First Respondents

COMMONWEALTH OF AUSTRALIA

Second Respondent

COMALCO ALUMINIUM LIMITED

Third Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fourth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Fifth Respondent

NAPRANUM ABORIGINAL COUNCIL

Sixth Respondent

PORMPURAAW ABORIGINAL COUNCIL

Seventh Respondent

EDDIE HOLROYD

Eighth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Ninth Respondents

MERLUNA CATTLE STATION PTY LTD

Tenth Respondent

JOHN BOCK

Eleventh Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Twelfth Respondent

KEITH JOHN, SHIRLEY BEVERLEY, IAN KEITH and ANDREW JAMES SHEPERDSON

Thirteenth Respondents

RICHARD JOHN and JOHN RICHARD PRICE

Fourteenth Respondents

RICHARD MATTHEW PRICE

Fifteenth Respondent

RICHARD MATTHEW QUEST and ROBERT JOHN FRASER

Sixteenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Seventeenth Respondents

THE THAYORRE PEOPLE

Eighteenth Respondents

Office of the Registry

Brisbane No B9 of 1996

B e t w e e n -

STATE OF QUEENSLAND and ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Applicants

and

THE THAYORRE PEOPLES

First Respondents

COMMONWEALTH OF AUSTRALIA

Second Respondent

COMALCO ALUMINIUM LIMITED

Third Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fourth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Fifth Respondent

NAPRANUM ABORIGINAL COUNCIL

Sixth Respondent

PORMPURAAW ABORIGINAL COUNCIL

Seventh Respondent

EDDIE HOLROYD

Eighth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Ninth Respondents

MERLUNA CATTLE STATION PTY LTD

Tenth Respondent

JOHN BOCK

Eleventh Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Twelfth Respondent

KEITH JOHN, SHIRLEY BEVERLEY, IAN KEITH and ANDREW JAMES SHEPERDSON

Thirteenth Respondents

RICHARD JOHN and JOHN RICHARD PRICE

Fourteenth Respondents

RICHARD MATTHEW PRICE

Fifteenth Respondent

RICHARD MATTHEW QUEST and ROBERT JOHN FRASER

Sixteenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Seventeenth Respondents

THE WIK PEOPLES

Eighteenth Respondents

Section 40 removal applications

BRENNAN CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 11.30 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with my learned friends, MR G.J. GIBSON, QC and MR G.J. KOPPENOL, for the applicants in each of the motions. (instructed by the Crown Solicitor for Queensland)

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR R.W. BLOWES, for the Wik Peoples who are the first respondents in one application (instructed by Bottoms English) and the 18th respondents in the other application. (instructed by Ebsworth and Ebsworth)

SIR M. BYERS, QC: If the Court pleases, I appear with my learned friend, MR J.W. GREENWOOD, QC, for the Thayorre People who, like the Wik People, are the 18th respondent in the first application and the first respondent in the second application. (instructed by Bottoms English)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR D.J. McGILL, QC, for the Commonwealth, the second respondent in each application, to support the removal. (instructed by the Australian Government Solicitor)

MR H.B. FRASER, QC: May it please the Court, I appear with my learned friend, MR P.L. O'SHEA, for the third respondent in each matter. (instructed by Blake Dawson Waldron)

MR A. BUCHANAN: May it please the Court, I appear for the fourth respondent, Aluminium Pechiney Holdings, in both applications. (instructed by Feez Ruthning)

BRENNAN CJ: There is no written argument from the fourth respondent in these applications.

MR BUCHANAN: Your Honour, there is no intention to make any submissions.

BRENNAN CJ: Do you support or oppose?

MR BUCHANAN: Support, your Honour.

BRENNAN CJ: Thank you.

MR J.W. GREENWOOD, QC: May it please the Court, I appear for the fifth respondent in both applications, the Aurukun Shire Council. (instructed by Bottoms English)

BRENNAN CJ: I see. Thank you. What is your attitude, Mr Greenwood?

MR GREENWOOD: The Council merely wishes to convey to the Court that they will support whatever submissions the Wik People wish to place before them. The Aurukun Shire Council represents a constituency which is entirely made up of the Wik Peoples.

BRENNAN CJ: I see. You do not have anything additional to add?

MR GREENWOOD: No, your Honour.

BRENNAN CJ: Very well.

MR D.J.S. JACKSON, QC: There being no appearance before me, your Honour, I appear in each of the applications for the 8th to 11th and 13th to 17th respondents. (instructed by Corrs Chambers Westgarth)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: If the Court pleases, I am seeking leave to intervene on behalf of the State of Western Australia with my learned friend, MR K.M. PETTIT, in support of the application. (instructed by the Crown Solicitor for Western Australia)

BRENNAN CJ: The Deputy Registrar certifies that he has received a letter dated 11 April 1996 from Ms Coates, solicitor, advising that the Napranum Aboriginal Council, the sixth respondent, does not wish any representations to be made on its behalf and submits to any orders of the Court save as to costs. He has further received a letter dated 4 April 1996 from Farrellys, lawyers, who are advising that the Pormpuraaw Aboriginal Council, the seventh respondent in these matters, does not wish any representations to be made on its behalf and submits to any orders of the Court save as to costs.

He further certifies that he has received a letter dated 10 April 1996 from Clayton Utz ,solicitors, advising that the Aboriginal and Torres Strait Islander Commission, the twelfth respondent in these matters, does not wish any representations to be made on its behalf and submits to any orders of the Court save as to costs.

As to the parties, there is an application for a change of parties, made I think by you, Mr Solicitor - - -

MR KEANE: Yes, it is, your Honours.

BRENNAN CJ: - - - and supported by an affidavit on behalf of some of those who have been named as respondents.

MR KEANE: Your Honour, I understand there is no opposition to that application.

MR JACKSON: I appear for the respondents to that application, your Honour, and we are content to be joined.

BRENNAN CJ: You are content to be struck out, is that right?

MR JACKSON: Yes, as the existing 13th respondents in the principal proceedings. It might be more convenient if we simply bring in a minute of the order, your Honour, rather than try and describe them here. But they are the Shepherdsons, who are the 13th respondents in each application. They have a different number in the principal proceedings.

BRENNAN CJ: At all events, the order can be made by consent of the parties affected.

MR JACKSON: Yes, your Honour.

BRENNAN CJ: There are no other submissions to be made at the Bar table with respect to that application? You can bring in a form of order that will give effect to that arrangement.

MR JACKSON: Thank you, your Honours.

BRENNAN CJ: As to the motion for leave to intervene by the Attorney-General for Western Australia, what is the attitude, first of all, of the applicant?

MR KEANE: We support that application, your Honours.

MR SOFRONOFF: We do not oppose it, your Honours.

MR GRIFFITH: We have no objection, your Honour.

MR FRASER: No objection, your Honour.

MR BUCHANAN: No objection, your Honour.

SIR MAURICE: We do not oppose it, your Honour.

MR GREENWOOD: We do not oppose it, your Honour.

MR JACKSON: No objection, your Honour.

BRENNAN CJ: There will be leave to intervene, Mr Solicitor. I think we could hear with advantage first from Mr Sofronoff.

MR SOFRONOFF: Your Honours, in our submission, there are three reasons why there ought not be removal. The first is that facts, in our submission, bear upon the answer to the ultimate questions. The second is that in the absence of any facts, and even on the basis of broadly drawn assumptions, unless the Court were to conclude that, whatever the facts might be, native title is extinguished by pastoral leases, the Court would be in the position of delivering a decision based upon a hypothetical set of facts.

The third reason is that your Honours do not have the benefit of the reasons of an intermediate Court of Appeal, nor indeed any reasons containing an analysis of all considerations by the learned judge at first instance, because his Honour felt himself bound by the decision of the Full Federal Court in the Waanyi Case and therefore concluded that the pastoral lease in question conferred a right of exclusive possession and concluded that it followed from that that any native title was extinguished.

Could I deal with the first matter, your Honours. It was recognised by Justice Drummond in this case early on in the proceedings that, in so far as the pastoral lease question is concerned, facts may be relevant. When the matter first came up for argument as to what questions ought to be set down, his Honour was pressed with a submission that a question like the question that he ultimately answered in relation to pastoral leases be considered by him. He declined to include any such question before him.

Could I take your Honours to Mr Hunter's affidavit and to exhibit 3 of it. Exhibit 3 is a transcript of the proceedings before Justice Drummond on 31 August and also later during argument on the questions in October 1994. In August Mr Crispin, who then appeared for my clients, at page 22 at the top of the page, made the observation that there is a difficulty in relation to facts. His Honour said:

Well, you really say that for exactly the same sort of reasons that I declined to set down those two questions, one involving the York Pastoral Lease as suitable for determination as preliminary questions, so I should now declined to set down the.....issue concerning the impact of the chapter 17 point on the pastoral lease?

Then his Honour summarised the proposition just above line 15:

Because the point being that the question is not likely to be - have any real utility in the absence of a determination of just what is the content of the native title or possessory title claim by the Wiks, and that will involve a substantial factual inquiry. And it has always been intended.....that that question would be determined in the context of the.....tribunal -

If your Honours would go to volume 1 of the application book at page 49, just under the quote at the top of the page. I have asked your Honours to look at the decision of his Honour in March 1994 which was the first relevant decision in which his Honour decided to adjourn my clients' applications for declarations of native title and possessory title in order that they could pursue those claims before the Native Title Tribunal.

McHUGH J: March 1994 or May 1994?

MR SOFRONOFF: March 1994, your Honour.

McHUGH J: I thought you said page 49.

MR SOFRONOFF: Page 49, yes.

McHUGH J: Is that not the May decision?

MR SOFRONOFF: I am sorry, your Honour. I have taken your Honours to the May decision. Could I give your Honours just a swift overview so that I do not lead myself astray. The matter came on for mention before his Honour in February 1994. These proceedings had been commenced in the preceding year seeking declaratory relief as well as other relief. In February, when the matter came on for mention, our side said that his Honour should adjourn the whole of these proceedings before the Act has now come into force and we would ask that we be permitted to pursue our rights under the Act. His Honour considered that question, decided that a decision in relation to native title under the Act would operate as a decision in rem. There would therefore be utility in that being permitted to go ahead and it required our side to undertake not to pursue its native title claim or its possessory title claim in the Federal Court proceedings. We did that.

His Honour then nevertheless decided to set down some preliminary questions for early determination and, in the course of debate about what questions would be suitable, he was pressed with a submission that one such question would be this, whether pastoral leases extinguish native title. Our submission at that time was that that would not be a suitable question because matters of fact were involved. At page 49 of the record your Honours will see that just below the quote his Honour said:

In order to decide whether the grant of a particular mining lease extinguishes the native title that would otherwise have existed in the subject land, it is necessary to identify the content of that native title. Some guidance as to what this title will consist of in the particular case is also provided by Mabo [No 2] .

His Honour goes on to consider that case. Then over at page 52 of the application book at line 5, his Honour said:

Because of this possibility -

the possibility that there might be some native title of limited content not extinguished -

I do not think it is likely to be of real utility to any of the parties to attempt to determine question 3 -

that is the pastoral lease question -

in advance of a determination as to the precise content of any native title which the applicants may be able to establish in the relevant lands.

So, when then time had passed and we were before his Honour on 31 August 1994, in the course of making submissions in relation to what questions ought to be determined, Mr Crispin at page 22 of the transcript to which I took your Honour, exhibit 3 to Mr Hunter's affidavit, Mr Crispin reminded his Honour of his Honour's decision in that respect and his Honour adverted to it at about line 15. If your Honours would then turn over two photocopy pages to page 52 of the transcript, just above line 20 Mr Crispin says:

Well, that is the dilemma I was - that is the problem, because once one descends to - that is one of the vices, we submit, of the question. Once one descends to specific pastoral leases, one then gets into a construction of the lease, and one then has to set the construction of the lease in terms of the historical background to the circumstances prevailing at the time, and so forth.

BRENNAN CJ: What question is he speaking about there?

MR SOFRONOFF: He is speaking, your Honour, about listing a pastoral lease question because, by that stage - - -

BRENNAN CJ: What do you mean by a pastoral lease? We are concerned with specific questions here.

MR SOFRONOFF: I am sorry, your Honour, I mean a question of the kind that his Honour ultimately answered which your Honours will see set out at pages 325 to 326 of application book 2. On 31 August, your Honours, his Honour Justice Drumond gave leave to join the pastoralists, and it was in that context that the question arose again whether or not a pastoral lease question ought be included in the set of preliminary questions with which his Honour proposed to be concerned. So Mr Crispin was again addressing the proposition that facts were material to the answer of that kind of a question.

If your Honours would go to page 53 of the transcript, Mr Crispin continued with that submission. It is not necessary to look at it in fine detail, but at line 30 of page 53 Mr Crispin said:

And indeed, one of the submissions we would make is that if the matter is to be set down on that basis as a preliminary question, then it should be set down at a date later than October. Our research is still not complete. We are, for example, still waiting on questions - still waiting on material relating to parliamentary debates in the United Kingdom.

His Honour then gave some reassurance at page 54. At line 15 his Honour said:

Well, I really - well, I will think about that. I mean, it may be that there is substance in what you are saying, about we can get to a certain stage. This substantial factual matrix that Mr Hunter is embroiled in uncovering at the moment may have to be looked at. But even if I were to come to the conclusion that, on one view, that is a likely situation, there may still be sufficient indications that it is worthwhile setting down the matter as a preliminary question because that issue may not arise. I mean, there would be no way that you would be forced to fight a case where, accepting what Mr Hunter says, there is a very substantial body of work to be done and you may simply not be able to do it.

Then over the page at line 5, Mr Crispin having made the submission that he was concerned that if the question proceeded within certain narrowed scope it might be that on appeal some criticism might be made that evidence was not led, his Honour said:

No, I do not see that. No, I do not - Mr Crispin, let me say - I do not see that situation arising. I think that if it were to become apparent that the matter would - the resolution of the questions would depend upon an evaluation of a mass of factual material, I would simply not proceed further, if we got to that stage.

If I could invite your Honours to go page 149 which is a few photocopy pages further on - this was during argument on the preliminary questions themselves during the substantive argument - at line 25 - - -

McHUGH J: You had the Full Court decision intervene between these two events, the earlier argument and - - -

MR SOFRONOFF: Yes, we had appealed his Honour's orders to adjourn only part of the proceeding and we had appealed his Honour's orders to set down certain preliminary questions. Both appeals were refused, so we were back before his Honour. They were applications for leave to appeal, this being an interlocutory order. Mr Crispin, during the course of argument on the substantive questions at line 25, wanted to make a couple of points. The first one was that the size of the land in question was such that, given that those in authority must have known that Aboriginal people inhabited it, it may well be that the inference could not be drawn that it was intended by the enactment of the relevant statutes and by the granting of leases under the relevant statutes to turn them into trespasses. His Honour said:

Well, I mean it would be one thing if it were common knowledge that there were a group, an identifiable group of Aboriginals who used land wholly within the confines of a lease area. It would be another thing if there were an identifiable group of Aboriginals who used not only those lands but contiguous lands.

Mr Crispin said "Yes". His Honour said:

And there are all those sort of things. The matter just cannot be resolved by a general statement of the kind you have just made that everyone must have known that there were Aboriginals living there. It seems to me not to advance the resolution of the problem very far.

Mr Crispin said:

Well, your Honour, that, with respect, is one of the difficulties really of endeavouring to provide a final answer to this question at this stage of the proceedings because what we are really trying to do is - what is really asked of your Honour is: would your Honour make a determination that no matter what facts are ultimately proven in evidence about the use and occupation of this land, then come what may, the rights to occupation of those people must have been extinguished.

His Honour said:

Well, Mr Crispin, the difficulty I have with that submission is that you have lost that battle twice now, or three times: once in March -

that is when his Honour first decided to adjourn only part of the proceedings and to continue the rest -

it seems, once in May -

and that was when his Honour decided to set down the questions -

and again in the Full Court -

which gave its decision I think on 2 September or thereabouts.

GAUDRON J: But, Mr Sofronoff, how does this really impinge on removal? It would be an answer to the question perhaps or it would be a solution to the problem just to say, "Inappropriate to answer at this stage". That is an answer that could be given by this Court as well as by the Full Federal Court. How does your argument really bear on removal?

MR SOFRONOFF: Your Honours, we would be indeed content with an answer of that kind given by this Court. What we wish to - - -

GAUDRON J: That would be what you would be contending for at the end of the day.

MR SOFRONOFF: Yes, it would be, your Honour. What we wish to point out, however, is that this case, because one of its outcomes may be merely declining to answer because the facts are not in, would not be a suitable case to remove in order to look at the pastoral lease question.

McHUGH J: I am not sure about that because these questions are very specific. It is:

does the creation of the Mitchellton Pastoral leases.....

did the grant of either of the Mitchellton Pastoral Leases necessarily extinguish all incidents of Aboriginal title -

So it is an all or nothing situation. If the Court says grant or creation does extinguish every incident, whatever form it may take, that is one thing. If the Court says it depends on the facts, that is another matter altogether. But there is no reason, is there, why the Court could not answer question 1(c)?

MR SOFRONOFF: Your Honour, if the Court were to address a question concerning extinguishment based upon the widest possible view of the facts in favour of my clients - that is to say, all possible facts assumed as widely as possible in favour of my clients - and if we lost the case, then probably we could not complain about the result. But if the answer were the other way, that the court was unable to answer that because, for example, it is not possible to say whether rights that inhere in native title cannot be enjoyed concurrently with the rights - - -

McHUGH J: I understand that. Take religious ceremonies, for example. It may be an illustration of an incident of native title perhaps that can continue notwithstanding exclusive possession. But I do not know how you can ever in this area get away from facts because, even if a grant extinguishes native title in a sense, it may well be that equitable rights arise of the Ramsen v Dyson situation. If I own land and I allow somebody to go and build a house, I just cannot go and turn that person out. Similarly in this particular case, if the Aboriginal people are there on these leaseholds for years and years exercising their rights, it may well be that they just cannot be turned out and that equities arise that a court exercising equitable jurisdiction would - I do not know, but they are matters that may to be explored, and I just think they will have to be explored in these cases.

MR SOFRONOFF: Your Honour, we feel a little as though our hands are tied when confronting questions like this before his Honour and we feel as though are hands were tied if we had to defend the issue of the continued existence of native title, notwithstanding pastoral leases, in the absence of the facts that would help us. So the observation that your Honour just made to me is one that we would wish to address. We would wish to address it as well within the context of the existence and continued existence of possessory title, but that is a bit difficult to do because we would be asserting hypotheses that may at the end of the day be groundless.

The ingenuity of counsel can think of boundless possibilities and permutations of those possibilities, but at the end of the day, in our submission, the only way to get a determinative answer is the way it was done in Mabo and that is to ensure that there is a foundation of fact found after all the orthodox procedures have been conducted.

GAUDRON J: But it is too late for that. You are trying to run that battle for a fourth time, are you not? The answer has been given. Unless you can get that answer changed, you cannot even contemplate a Mabo-type situation. That is your difficulty.

MR SOFRONOFF: Your Honour, on appeal to the Full Federal Court we may persuade their Honours that his Honour should have declined to answer the questions because, having considered the argument at the end of the day, they were not apt to be answered in an absolute form. The Full Court would then set aside his Honour's decision and remit the matter back for trial.

McHUGH J: We might give the same answer. We might say you just cannot determine these questions in this way or we might say it depends on the facts.

MR SOFRONOFF: Your Honour, that, as I said, would be the result that we would be contending for; but we are concerned at facing the risk of the alternative, which we did before his Honour and lost, and which we did - or I should say, the Waanyi people did, on two occasions, and lost in the absence of fact. We are concerned to maximise our prospects of success by having available to us the facts.

McHUGH J: I do not know why you are concerned because in one sense you are in a very advantageous position because the facts concerning your leases have not been found you are in a position where you can put forward all sorts of hypotheses, and you can say, "My opponents have got to establish that the grant of creation of these leases extinguishes every incident of native title whatever". Surely, these issues affect the economies of Queensland and Australia, and they probably are starting to affect the social fabric of the country, or at least areas where native title is alleged. Surely somebody has got to make a start on resolving these questions, and perhaps it is time this Court took that step.

MR SOFRONOFF: Your Honour, we would not argue for a moment with the importance of this question, and it is difficult to exaggerate the importance of the question. It is precisely that reason that, in our submission, the proper procedures ought to be followed to ensure that not only do we get the correct answer at the end of the day, but that we get the correct question at the end of the day. The questions that his Honour posed, or that his Honour accepted that he ought to consider, are, in our respectful submission, narrow and contain with them some question begging, or at least some assumptions that could be contrasted with the questions that were set down in Mabo which were open-ended questions. So, we are concerned at the risk of needing to face this crucial issue in the absence of any facts and within the confines of questions that may well foreclose other possibilities.

BRENNAN CJ: Mr Sofronoff, one of the things that this Court must be concerned to do is to answer so far as practicable questions of law that will elucidate this area. The problems that you are agitating in respect of the questions asked are themselves, it seems to me, questions that need to be addressed by this Court. In other words, if the questions that have been posed are questions which do not answer the basic question of, "Does Aboriginal title become extinguished by the grant of a pastoral lease?", then it is as well that the limits of the questions that have been answered should be defined. One should not be too optimistic that these series of questions answer every problem that might arise with respect to Aboriginal title. But, so far as they do go, is there any reason why this Court should not address them?

MR SOFRONOFF: The reason that we advance, your Honours, is that the Court may be placed in the position where it is giving its reasons in the absence of any hard parameters, the hard parameters that the facts generally furnish, and the attempt to quell uncertainty may do no more than open a fresh trail. We would wish to come here having had our trial.

BRENNAN CJ: But that problem in itself means that you shall have a trial on issues that this Court has not defined in this context.

MR SOFRONOFF: That is so, your Honour.

BRENNAN CJ: Would it not be better for the issues to be defined if there has to be a trial?

MR SOFRONOFF: Of course it would be better, your Honour. The difficulty that we advert to is the difficulty in defining those principles in the absence of a concrete set of facts that throw them up. If that would not present an insuperable difficulty to removal, then that is the end of the matter.

BRENNAN CJ: Yes.

McHUGH J: It is fairly concrete, is it not? After all, your opponents say, "Look, we have got this document, these leases; that is the end f the matter". You say, "It is not the end of the matter". That is a concrete enough question, is it not?

MR SOFRONOFF: It is a concrete enough question, your Honour, but if the answer is given in our favour then more questions are raised, and until somebody comes back with a set of facts in the conventional way, then questions will continue to be raised.

BRENNAN CJ: But the answer must be of one of two kinds, must it not? The first is, irrespective of what the facts may be, the Aboriginal title in this case has been extinguished. The other kind of answer must be, depending upon the nature of the Aboriginal title that is pleaded and proved, it may or may not have been extinguished according to the following circumstances, in which case you have a definition.

MR SOFRONOFF: Yes.

BRENNAN CJ: Either of those approaches seem to me to be matters which are appropriate for this Court now to consider.

MR SOFRONOFF: Your Honour, we can do no more than point to the potential difficulties inherent in adopting the second of those two alternatives in the absence of any consideration of what inheres in the native title of the Wik Peoples, as opposed to other peoples with which the Court was concerned in the earlier case.

BRENNAN CJ: One can see that if this Court were to take it on, it would be necessary to have some directions given to ensure that all the relevant issues that could be agitated are agitated. For example, those that have been spoken of by Justice McHugh, and questions as to the nature of the rights which are created by the grant of a lease under the relevant legislation.

MR SOFRONOFF: Yes, your Honour. If my submissions are not accepted, then we would certainly ask that opportunities be given to ensure that the correct framework is laid, theoretical though it might be.

BRENNAN CJ: Yes.

MR SOFRONOFF: Your Honours, the arguability of the question, or a good articulation of the question, if I may say so, with respect, is in the reasons of Justice Lee in the Waanyi Case. The same propositions were put up in that case and we make the same submissions as were made in that case. His Honour set them at pages 590 to 591, and they are the issues that we wish to have investigated at a trial. If we succeed in establishing that - could I take a couple of minutes to propose this, your Honours - it is conventional to approach the question from the point of view of the title granted by the lease, and to ask whether the title granted by the lease excludes the possibility of enjoyment of any other interest in the same land.

But if one were to look at it from the other point of view and ask the question whether the interest in the land enjoyed by the Aboriginal people necessarily excludes an interest of a kind that a white pastoralist wishes to enjoy under a grant, the answer may be, "No, they can both coexist together", and indeed, there may be people today up in Cape York who would be surprised to learn that there is a lease covering many, many square acres, and who would be surprised to learn that anybody considered that their enjoyment of the land they have enjoyed since their birth was inconsistent with the manner in which the white pastoralists some kilometres away, some tens of kilometres away, are enjoying the land.

If one puts the question in those terms, it is necessary, in our submission, to look at the facts correctly to throw up the question for decision. We would not wish to be limited in considering this all or nothing question in the absence of facts. We would not wish to be prejudiced by the absence of facts as we feel that we were a little bit in the way the case has proceeded to this date. I do not think I can usefully add anything further.

GAUDRON J: Mr Sofronoff, thus far the debate seems to have been concerned with questions 1 and 2. Is there anything you wish to say as to the other questions?

MR SOFRONOFF: Your Honours, the question in relation to the limitation of power of the Queensland Parliament, and the question in relation to the effect of the Comalco Act are narrow questions of law. However, we apprehend that if they were the only questions we probably would not all be here troubling the Court, we would go through the conventional route. I have nothing to say about them.

GAUDRON J: Are they in any way - put aside the constitutional question, so called, and turn to the Comalco one. Is that in any way dependent on the answer to the pastoral lease question, or connected with it in any way?

MR SOFRONOFF: It is not connected to the pastoral lease question, your Honour, no. My learned junior reminds me there is the minerals question which is similar to the pastoral lease question, and could I regard those two together as throwing up issues of fact, and the other two questions as being true questions of law.

BRENNAN CJ: What question of fact might arise with respect to minerals?

MR SOFRONOFF: The extent of native title; the particular rights which inhere in my clients in respect of minerals needs to be defined and has not been addressed in any case yet. Then the question arises whether the right so defined can continue consistently, concurrently, with the regime that had been put in place by the Acts that are referred to in the question. Until one defines those rights, one does not know the answer to that question.

BRENNAN CJ: They would be proprietary rights, would they, to be relevant in this context?

MR SOFRONOFF: Or rights of non-interference, your Honour. I just hesitate to put a conventional label on it.

GAUDRON J: Are you talking about rights separate and distinct from land rights, if I can use that expression?

MR SOFRONOFF: I have difficulty in answering your Honour's question absolutely, but I am speaking about one element of the bundle of rights that can be called native title rights. It may be that there are four or five categories of rights, some of which are inconsistent with the grant of pastoral lease or the creation of the mining legislative regime, and some of which are not. It may be that the mineral aspect falls, and other aspects do not. It may be that, in fact, there is not a great deal to fear in the minds of those who do fear it, the continued existence of native title because it may not impact as far as they think.

If your Honours are minded to order removal, we would wish that ample time be given to the parties, to our side, to prepare the questions. We have found in the past that - at least those concerned in the past have found - that it is often very easy to underestimate the amount of time that is required to prepare proper submissions and proper arguments.

BRENNAN CJ: That may be so but, if the Court is reminded to remove this appeal, there is the week of 11 June which can be utilised for the purpose of the hearing. Before that time it would be necessary to have a directions hearing at a stage at which one would think it would be desirable to have, at least in penultimate form, the written submissions of the appellant.

MR SOFRONOFF: Yes. Could I inquire, your Honours, whether you are at all attracted to the proposition we make in paragraph 23 of our outline, which is to set down what we have called the native title application grounds and the contested facts grounds first, to avoid the necessity to prepare the substantive matter in the first instance.

BRENNAN CJ: That is to entertain those grounds of appeal by themselves?

MR SOFRONOFF: Yes, in the first instance.

GAUDRON J: I am sorry, I do not understand what you mean by the substantive issue. Could you be a little more definite?

MR SOFRONOFF: Your Honours, there are two categories of grounds in the notice of appeal. Category 1 is that his Honour was wrong in deciding that pastoral leases extinguish native title.

GAUDRON J: Because there are factual issues to be determined?

MR SOFRONOFF: No, your Honour, because he was simply wrong. He should have decided that they do not - - -

McHUGH J: You want to run the Waanyi point?

MR SOFRONOFF: Yes.

McHUGH J: Speaking for myself, I do not think we would be allowing this case to be removed and then dealing with that as a preliminary point, what would happen to the rest of it?

MR SOFRONOFF: There is what might be called the Waanyi point and the point that I have addressed this morning that the question is incapable of answer until further facts are found.

McHUGH J: But they are two separate points.

MR SOFRONOFF: Yes.

McHUGH J: You have been up to the Full Court, and there was no special leave application in respect of that decision, was there, of the decision of 6 September 1994? Justice Drummond has gone on and dealt with these issues, and now you have a full scale appeal on.

GAUDRON J: The Waanyi point is surely gone in the mists of time, has it not?

MR SOFRONOFF: No, your Honour, because our position was that having unsuccessfully argued before Justice Drummond, we sought leave to appeal from the Full Federal Court which refused leave to appeal, and I do not know that there is any right of further appeal from a refusal to grant leave to appeal.

GAUDRON J: The substance of what might be an appeal point has been determined against you; it is gone.

MR SOFRONOFF: In argument before his Honour Justice Drummond, it would have been open for us to seek to persuade the judge to decline to answer the questions because it would have been more appropriate, having heard argument and having realised the scope of the questions, for the proceedings to proceed in the Native Title Tribunal. His Honour might have declined to answer the questions on that ground. So, the ground constitutes both a reason not to set down questions and, if they are set down, a reason to declined to answer them. It is the second matter that we would wish to agitate before your Honours.

McHUGH J: If you had come up here on 7 September 1994 you might have got the same result that the Waanyi People did - you probably would have. I do not say you probably would have, but arguably, you would have. A lot of things have happened since then. We have had a hearing and the judge has made a determination - not the Native Title Tribunal but a federal judge has made a determination against you, and now you have got an appeal against that. I certainly am not attracted to dividing the issue up.

BRENNAN CJ: I think you can take it that the Court is not much attracted to that suggestion.

MR SOFRONOFF: I did take that, your Honour. Your Honour, conscious as I am of the constraints of the Court's time, is there any prospect of having a later date?

BRENNAN CJ: There is a prospect of having a later date, of course, but it is a prospect which is not very attractive when one considers the nature of the problems that are involved.

MR SOFRONOFF: Your Honour, is it very much later? I only ask that, not flippantly, but I ask that because if it were another month - - -

BRENNAN CJ: The difficulty is that after the week that I have spoken of, the Court then has a circuit week in Brisbane, and that is followed by the August sittings, which is abbreviated because of the sittings in Adelaide. So, it is not desirable that it should go over beyond that time. In fact, it is not desirable it should be delayed at all.

MR SOFRONOFF: Your Honour, those with more experience in preparing these cases than I tell me that we would be under some serious pressure to put everything together by 11 June.

BRENNAN CJ: I can understand that, but, indeed, let there be no misunderstanding about it, you would have to have it all together in time for written submissions to which the respondents would have an opportunity to reply.

MR SOFRONOFF: I think that is what we fear, your Honour, that the time is really about a month or so.

BRENNAN CJ: But the case has been run at first instance. Notice of appeal has gone into the Federal Court.

MR SOFRONOFF: Yes, your Honour, we have got some head starts.

BRENNAN CJ: Indeed you have.

MR SOFRONOFF: Your Honour, if it is possible to give us another month, we could certainly well use it. If the constraints on the Court's time is such that that is not possible, then - - -

BRENNAN CJ: It is not a question of constraints on the Court's time, although the Court's calendar will have to be rearranged to take it, it is because of the priority of the nature of the issues that are falling for determination in this case that we feel it is desirable to give it as early a date of hearing as possible.

MR SOFRONOFF: Yes, your Honour, I would ask that if the Court can, consistently with that desire, give us some more time, then we could certainly make good use of it.

BRENNAN CJ: Yes. We understand that you will be under some pressure, but the Court proposes, nonetheless, that it will be listed in June, Mr Sofronoff, unless other counsel talk us out of it after you have resumed your seat.

MR SOFRONOFF: I will let them have a chance, your Honour.

BRENNAN CJ: Sir Maurice, have you anything to add?

SIR MAURICE: No, your Honour.

BRENNAN CJ: Is there any counsel at the Bar table who seeks to make any particular application with respect to removal, it being intimated that the Court is minded to make an order for removal at this stage? Very well, an order for removal will be made.

The timetable which, subject to any further observations that counsel might make, will be adhered to is as follows. There will be a directions hearing before me on Monday, 6 May. It would be anticipated that by that time the respondents in this application, the appellant Wik Peoples, and the appellant Thayorre Peoples, will have filed penultimate notes of argument which will contain references to both pages of transcript or appeal book as necessary and to relevant authorities with a view to a final note of argument being prepared and delivered by 14 May, and notes of argument by respondent parties, including interveners, by 28 May. The matter will then be listed for hearing on 11 June.

Is there any submission from the Bar table as to a variation that might be made to that timetable? Mr Solicitor?

MR GRIFFITH: Your Honour, just a modest suggestion. I understand what Mr Sofronoff said about time. Is there any prospect of the Court entertaining this as a Queensland matter in the Brisbane sittings?

BRENNAN CJ: No, that is impossible, Mr Solicitor.

MR GRIFFITH: No other submissions, your Honour.

BRENNAN CJ: Mr Sofronoff, can you give us any broad indication of the length of time that you would expect oral argument to take on the assumption that the written submissions are submissions which will convey to the Court the substance and line of argument of your clients?

MR SOFRONOFF: Your Honour, I think up to a day. Mr Blowes thinks I should give a little bit more leeway, but I think up to a day.

BRENNAN CJ: Thank you. Sir Maurice?

SIR MAURICE: Similar amount, your Honour.

BRENNAN CJ: Yes. Perhaps I should make it quite clear that the timetable applicable to the Wik Peoples is equally applicable to the Thayorre People.

SIR MAURICE: Yes, your Honour.

BRENNAN CJ: Mr Solicitor for Queensland.

MR KEANE: Up to a day, your Honour, but certainly no more.

BRENNAN CJ: Mr Solicitor for the Commonwealth.

MR GRIFFITH: Your Honour, we think we would probably be concentrating on the pastoral lease issue, so that two hours or so should be sufficient.

BRENNAN CJ: Mr Fraser.

MR FRASER: Your Honour, I think I would be concentrating on question 4. My best estimate is two to three hours.

BRENNAN CJ: Yes. Mr Buchanan.

MR BUCHANAN: Your Honour, in light of the third respondent's submissions, probably 15 minutes maximum.

BRENNAN CJ: Yes. Mr Jackson.

MR JACKSON: I think about half an hour to an hour, your Honour.

BRENNAN CJ: Yes. Mr Solicitor for Western Australia, do you have any indication from other Solicitors-General as to whether they are minded to seek leave to intervene.

MR MEADOWS: It has been indicated that that is a possibility, but I cannot be any more definite than that. So far as ourselves are concerned, we can see ourselves perhaps requiring two to three hours, depending on how the other submissions are put.

BRENNAN CJ: Yes, very well. That will be of assistance for listing purposes. Thank you very much.

MR SOFRONOFF: Your Honour, I take it the directions hearing on 6 May will be in Canberra, not in some other city?

BRENNAN CJ: That is the prima facie view that can be taken, but if it is convenient for it to be held elsewhere, it may be that the counsel can consult with the Registry and see if some alternative location can be fixed.

MR SOFRONOFF: Would your Honours reseve the costs of today?

BRENNAN CJ: No other submissions as to that? Costs will be reserved, and if there is any desire to have the directions hearing otherwise than in Canberra, any party is at liberty to approach the Registry with a view to having those arrangements made. Court will adjourn.

AT 12.30 PM THE MATTER WAS CONCLUDED