Wik Peoples v State of Qld & Ors B8/1996 [1996] HCATrans 214 (6 May 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B8 of 1996

B e t w e e n -

THE WIK PEOPLES

Appellants

and

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Third Respondent

COMALCO ALUMINIUM LIMITED

Fourth Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fifth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Sixth Respondent

NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

PORMPURAAW ABORIGINAL COUNCIL

Eighth Respondent

EDDIE HOLROYD

Ninth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Tenth Respondents

MERLUNA CATTLE STATION PTY LTD

Eleventh Respondent

JOHN BOCK

Twelfth Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Thirteenth Respondent

REEFDEEN PTY LTD

Fourteenth Respondent

RICHARD JOHN and JOHN RICHARD PRICE

Fifteenth Respondents

RICHARD MATTHEW PRICE

Sixteenth Respondent

GEOFFREY JOHN GUEST and ROBERT JOHN FRASER

Seventeenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Eighteenth Respondents

THE THAYORRE PEOPLE

Nineteenth Respondents

Office of the Registry

Brisbane No B9 of 1996

B e t w e e n -

THE THAYORRE PEOPLE

Appellants

and

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ABORIGINAL AND ISLANDER AFFAIRS CORPORATION

Third Respondent

COMALCO ALUMINIUM LIMITED

Fourth Respondent

ALUMINIUM PECHINEY HOLDINGS PTY LTD

Fifth Respondent

COUNCIL OF THE SHIRE OF AURUKUN

Sixth Respondent

NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

PORMPURAAW ABORIGINAL COUNCIL

Eighth Respondent

EDDIE HOLROYD

Ninth Respondent

CAMERON CLIVE and DOREEN RUTH QUARTERMAINE

Tenth Respondents

MERLUNA CATTLE STATION PTY LTD

Eleventh Respondent

JOHN BOCK

Twelfth Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Thirteenth Respondent

REEFDEEN PTY LTD

Fourteenth Respondent

RICHARD JOHN and JOHN RICHARD PRICE

Fifteenth Respondents

RICHARD MATTHEW PRICE

Sixteenth Respondent

GEOFFREY JOHN GUEST and ROBERT JOHN FRASER

Seventeenth Respondents

MYLES KENNETH and DEBRA ANN GOSTELOW

Eighteenth Respondents

THE WIK PEOPLES

Nineteenth Respondents

Directions Hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 MAY 1996, AT 11.02 AM

Copyright in the High Court of Australia

MR SOFRONOFF: Your Honour has by now received our outline of submissions.

HIS HONOUR: Yes, I will just take the appearances first.

MR W. SOFRONOFF, QC: I appear with my learned friend, MR R.W. BLOWES, for the appellants, the Wik Peoples. (instructed by Ebsworth & Ebsworth)

MR J.W. GREENWOOD, QC: May it please your Honour, I appear for the Thayorre People in their appeal and as the 19th respondent in the other matter. (instructed by Bottoms English)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please your Honour, I appear with MR G.J. KOPPENOL, for the first and third respondents in each appeal. (instructed by the Crown Solicitor for Queensland)

MR G. GRIFFITH, Solicitor-General for the Commonwealth: If your Honour pleases, I appear with MR D.J. McGILL, SC and MS M.A. PERRY for the Commonwealth, second respondent in each matter. (instructed by the Australian Government Solicitor)

MR P.L. O'SHEA: May it please the Court, I appear for the fourth respondent in each appeal. (instructed by Blake Dawson Waldron)

MR G.A. THOMPSON: May it please the Court, I appear for the fifth respondent in each appeal. (instructed by Feez Ruthning)

HIS HONOUR: Yes. What is your interest, Mr Thompson?

MR THOMPSON: I appear for Pechiney, the fifth respondent.

HIS HONOUR: My listing seems to be at odds with the appeal book. Are you for the fifth respondent, Pechiney?

MR THOMPSON: Yes, I am, your Honour.

HIS HONOUR: Thank you. Mr O'Shea, could I just ask you who is your client?

MR O'SHEA: The fourth respondent, your Honour, Comalco Aluminium Limited.

HIS HONOUR: Mr Solicitor for Queensland, who is the third respondent?

MR KEANE: The Aboriginal and Islander Affairs Corporation, your Honour.

HIS HONOUR: I see. Thank you.

MR W.C. HAWKINS: If it pleases the Court, I appear for the eighth respondent in each appeal. (instructed by Farrellys)

HIS HONOUR: Just so that I have the name correctly, Mr Hawkins, for whom do you appear?

MR HAWKINS: It is the Pormpuraaw Aboriginal Council.

MR D.J.S. JACKSON, QC: May it please your Honour, I appear in each appeal for the ninth to twelfth respondents and the fourteenth to eighteenth respondents. (instructed by Corrs Chambers Westgarth)

HIS HONOUR: Can you give me a general description of their - - -

MR JACKSON: They are the pastoral leaseholders who are described loosely as cattle men. They do not include the Aboriginal and Torres Strait Islander Commission who is the twelfth respondent in the application and I think they are now the thirteenth respondent in each appeal.

HIS HONOUR: Thank you.

MR B.A. KEON-COHEN: If your Honour pleases, I appear for the Northern Land Council and the Central Land Council, seeking leave to intervene in both matters. (instructed by the Northern Land Council and the Central Land Council)

HIS HONOUR: Your interest being?

MR KEON-COHEN Our interest, your Honour, is as a representative body operating in the Northern Territory under the Native Title Act and in that capacity representing a number of communities in various stages of claims under that Act.

HIS HONOUR: And what questions are you interested in?

MR KEON-COHEN: Your Honour, we are interested in the surviving issues in both appeals, but most particularly the pastoral lease question.

HIS HONOUR: I see. Thank you.

MR K.M. PETTIT: May it please your Honour, I appear on behalf of the Attorneys-General for the States of Western Australia, South Australia and New South Wales, seeking leave to intervene in both appeals. (instructed by the Crown Solicitors for the States of Western Australia, South Australia and New South Wales)

BRENNAN CJ: Mr Pettit, I take it that you are in support of the State of Queensland?

MR PETTIT: Yes, we are, sir.

MR G.M.G. McINTYRE: Your Honour, I appear for the Kimberley Land Council, (instructed by the Kimberley Land Council); the Nanga-Ngoona Moora-Joonga Association Aboriginal Corporation, (instructed by the DCH Legal Group); the Western Desert Punturkurnuparna Aboriginal Corporation, (instructed by the Western Desert Punturkurnuparna Aboriginal Corporation) and the Ngaanyatjarra Land Council, (instructed by the Ngaanyatjarra Land Council)

Each of those corporate bodies is a representative body under the Native Title Act. Within Western Australia it would cover the majority of the northern half of the State of Western Australia. They would seek to intervene in relation to both appeals to put similar kinds of arguments to the ones that your Honour may recall from the Waanyi Case, that is to essentially support the position of the appellants in these matters but draw to the Court's attention any matters which may assist it in reaching general conclusions as to questions relating to pastoral leases, but also to the fiduciary duty question. So it may be that it will range across the full extent of the matters that are before the Court.

HIS HONOUR: Thank you, Mr McIntyre.

MS R.J. WEBB: If the Court pleases, Mr Bennett, QC will appear for the Attorney-General for the Northern Territory seeking leave to intervene in both appeals, and I appear with him. (instructed by the Solicitor for the Northern Territory)

HIS HONOUR: And I take it your interest is to support the State of Queensland?

MS WEBB: We will be supporting Queensland.

MR R.H. BARTLETT: (From Perth by video link to Canberra) If the Court pleases, I appear for Ben Ward and others on behalf of the Miriuwung and Gajerrong People who are seeking leave to intervene in both appeals in the hearing of this matter. (instructed by the Aboriginal Legal Service of Western Australia)

HIS HONOUR: And what is your interest, Mr Bartlett?

MR BARTLETT: The Miriuwung and Gajerrong are seeking a determination of native title under the Native Title Act and the matter has been referred to the Federal Court. Our particular interest, though all matters decided with respect to this question will affect the Miriuwung and Gajerrong, our particular interest is with respect to questions 1B and C dealing with pastoral leases and question 3 dealing with the mining legislation.

HIS HONOUR: Yes, I see. Thank you. Can I ask you whether or not your submissions are likely to be along the same lines as those of the present applicants, that is the Wik Peoples and the Thayorre People?

MR BARTLETT: They may well be along the same lines with respect to pastoral leases and mining legislation, but there may be some differences because of the nature of the legislation in Western Australia as opposed to Queensland.

HIS HONOUR: Yes, that may be a question which, in itself, will govern the decision of the Full Court as to whether you should have leave to intervene. Thank you, Mr Bartlett.

Now, there are a number of matters which require attention. The first is in relation to the submissions. I should mention first of all that there is a certificate by the Deputy Registrar that he has received a letter dated 1 May from Messrs Hemming & Hart, Solicitors, advising that the Aurukun Council, the sixth respondent in each of 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 has received a similar letter from Ms S.M. Coates, Solicitor, in respect of the Napranum Aboriginal Council and a similar letter from Messrs Clayton Utz, dated 1 May, advising that the Aboriginal and Torres Strait Islander Commission, the thirteenth respondent in each of these matters, does not wish any representations to be made on its behalf and submits to any orders of the Court.

Now, dealing first with the question of the submissions, Mr Sofronoff, question 1A, where does one find the submissions with respect to question 1A?

MR SOFRONOFF: We are not pursuing that, your Honour. May I tell your Honour the grounds of appeal that we are not pursuing?

HIS HONOUR: Yes, thank you.

MR SOFRONOFF: They are grounds 1, 2, 3, 6, 12, 16, 17, 18, 19, 20, 21 and 23. In substance they are what was called the Waanyi ground, the minerals ground and the limitation of power ground, which was question 1A that your Honour asked about.

HIS HONOUR: Once the limitation of powers ground has gone, does that mean that the appeal books will be of much smaller content than they would otherwise have been?

MR SOFRONOFF: No, your Honour, because much of the historical material, some of it anyway, is material relevant to the pastoral lease ground.

HIS HONOUR: I see.

MR SOFRONOFF: What we will try to do, what we will do, your Honour, is that we will extract the historical documents that we wish to rely upon and put them into a separate folder so that it will not be necessary for the Court to wade through - I think there are 10 books with historical materials in them - it will not be necessary for the Court to go to that trouble.

HIS HONOUR: Are those 10 volumes presently in computerised form?

MR SOFRONOFF: No, your Honour.

HIS HONOUR: If you wish to have them available, then they have to be in hard copy?

MR SOFRONOFF: Yes, I am afraid so.

HIS HONOUR: It occurs to me that if it is not necessary to produce large volumes of paper, it would be obviously desirable to avoid that necessity. The question is whether or not any alteration to the index to the appeal books at this stage would interfere with the preparation of the submissions for argument.

MR SOFRONOFF: I do not know that it would interfere with the preparation of our final submissions. It may be difficult to shift the momentum of preparation that the solicitors are now undertaking. There are 40 sets being prepared of 17 volumes each and to shift that task in mid-stream now might be difficult and it might be easier if we extracted the necessary documents, and hopefully in a way that does not cut across the submissions the other sides might wish to make, and use them ultimately. But we will do our best and we will do what is possible so that nobody has to look at matter inefficiently.

HIS HONOUR: Yes. Thank you. Now, could I just mention a few matters with regard to the submissions that have been prepared, the penultimate submissions, and raise some general problems. First of all, with respect to old legislation in particular, but including the present Lands Acts, what is the material that will be available to the parties and to the Court in respect of the legislative material to which reference will be made?

MR SOFRONOFF: The State of Queensland is preparing what are called legislation books which will have all the legislation that is going to be referred to in this case.

HIS HONOUR: I see. Could I mention for the advice of all parties that all lists of authorities will need to be filed in the Court by close of business on the Tuesday before, that is 4 June.

Have you got a copy of your submissions there?

MR SOFRONOFF: Yes, your Honour.

HIS HONOUR: I would just like to draw your attention to two matters in general: one is that it would obviously be helpful, and in some parts of your submissions this has already been provided for, to give page references where necessary to particular documents or material. I might say that applies in particular to the Thayorre Case as well, Mr Greenwood, that that will be necessary. Also references to authority generally, which is I think more liberally contained in the Wik Peoples' submissions than in the Thayorre People's submissions.

Apart from that it is not of course for the Court to dictate the manner in which the submissions should be prepared or the contents of them, but I will mention some items which have occurred to me on the quick reading that has been available. On page 7 in paragraph 16 there is a reference to the concurrent exercise of rights which, understandably enough in that context, are not identified. The argument proceeds to deal with the concurrent exercise of what are called rights but I wonder whether it is necessary to look at the existence of rights and to identify the nature of them to the point of saying that there are either concurrent exercise of rights or a concurrent exercise of conduct which is consistent with rights. Do I make the point clear?

MR SOFRONOFF: I am sorry, your Honour.

HIS HONOUR: No. It is said that the pastoralists and the Aborigines concurrently exercised rights.

MR SOFRONOFF: Yes.

HIS HONOUR: It is not entirely clear that the allegation is that there were rights vested in each party which, in themselves, could be concurrently exercised or whether what is being said is that the pastoralists did what they wished to do in exercise of their rights; the Aborigines did what they wished to do in exercise of their rights and the concurrent exercise is what is relied on as distinct from the concurrent existence of rights which are compatible as rights one with the other.

MR SOFRONOFF: I understand.

HIS HONOUR: That may need some clarification. On page 15 there is, I think, yet to be supplied some footnotes of the sections of the Land Acts upon which reliance is made.

MR SOFRONOFF: Yes. Your Honour, may I mention about the footnotes? Some of the footnotes have come from earlier versions of this document which was longer, so the footnotes at the moment are not accurate in every respect and that will be tidied up this week.

HIS HONOUR: On page 17, at the top of the page there is a reference to the ease with which "pastoralist's rights could be readily overridden in the event of discovery of gold." I imagine a footnote is required for that.

MR SOFRONOFF: Yes.

HIS HONOUR: On page 29 - and perhaps this is pages 27 to 29 - where there is a question of the manner of the exercise of a discretionary power, it is not entirely clear that the argument is that when a statute confers a discretion upon the repository of a power, the obligation of the repository is to exercise the power in conformity with the repository's private obligations removed from the purpose for which the power has been conferred. It just seems to me that that is something which needs some further elucidation in that area.

MR SOFRONOFF: Yes.

HIS HONOUR: I think that really exhausts the comments that I can make in the short time I have had to review this argument. But I might say that generally the purpose of these submissions, having regard to the limited time that will have to be imposed on counsel for the presentation of oral argument, must be (a) to inform the Court of the line of argument and (b), to provide the Court with the necessary material, both factual and in terms of authority, on which the Court's judgment is sought to be based. The more completely that can be done, the more efficiently I think the matter can be disposed of.

MR SOFRONOFF: That is the assumption that we have worked on, your Honour.

HIS HONOUR: Yes, thank you. Now, I would like to raise next with you, Mr Greenwood, the question of the Thayorre submissions. On page 6 of the Thayorre submissions and, in a sense, the same problem might be considered by the Wik Peoples, but particularly the Thayorre submissions at page 6, there is a reference to the Crown's interest which is expectant upon the determination of a lease but there does not seem to be any reference to the nature of the interest acquired by the Crown as reversioner at the time of the grant of the lease. That seems to me that that may be some subject that is worthy of consideration by counsel. In saying that, I do not mean to indicate a line of argument that I think is a valid one or one which ought to be pursued. Simply, I am endeavouring to foresee the possibility of future arguments as the matter progresses.

MR GREENWOOD: Thank you, your Honour.

HIS HONOUR: At page 9 there is a need, I think, in particular, for reference to volume and page references for the various documents that are referred to there and that will have to be provided by reference to the appeal books. At page 39 where there is a discussion of profits a prendre, there is a citation of authority which cites, inter alia, the Duke of Sutherland v Heathcote to support a proposition that a profit a prendre is a right to take something off another person's land. If that be the argument which is intended to be advanced or one of the arguments that is intended to be advanced, it may be necessary to identify what extraction is involved in depasturing of cattle or sheep.

MR GREENWOOD: Yes, your Honour.

HIS HONOUR: At page 41 in paragraph 16.00, the third sentence, there is a seeming reference to authorities in other countries that there is a presumption that a statutory lease confers exclusive possession. If there are, it would be desirable to have a reference to those cases and a submission as to the manner in which those cases should be distinguished or should not be followed.

At page 44, which deals with a fiduciary duty or the relationship being of a fiduciary nature, it may be desirable to identify with more particularity what is the relevant fiduciary duty which is said to have been breached in the instant case. At page 46, at the bottom of the page there is a reference to "cases illustrate a wider principle". On pages 46 and 47 there are a series of propositions, each of which seems to rely upon earlier authority and that authority should be cited.

On page 56 there is a reference to the protection of the Thayorre People from dispossession by a squatter, for example, and it does not clearly appear what the significance of the Nullum Tempus Act is in relation to such third parties. At least, it did not appear clearly to me, Mr Greenwood. It may be that I have not read it properly but for what it is worth.

Now, those are some general observations that I would make but as the submissions have been available to other counsel, I think it would be of assistance if other counsel, if they have any query that is desired to be made of either the Wik Peoples or the Thayorre People and their submissions, that those queries should be made at this time and not left until some later stage when the submissions are complete. In other words, the complete submissions are due on 14 May and it would be desirable for any further or better particulars, as it were, to be sought at this stage and in writing. That is all I have to say at this stage, Mr Greenwood.

MR GREENWOOD: If your Honour pleases.

HIS HONOUR: Now, the question of the date of submissions: at the Full Court hearing it was intimated that the submissions by the respondents and interveners would be required by 28 May. Is there any difficultly apprehended by any counsel with respect to that time frame? In that event, if there should be a reply required by the Wik Peoples or by the Thayorre People, that should be provided by 4 June.

Now, the next question is the time which should be allocated to the various submissions. First, I should indicate that it will be a matter for the Full Court to determine whether any and what applications for leave to intervene should be granted. On the assumption, however, that all who are presently represented today are granted leave to intervene, it is necessary to determine the time that counsel should have in respect of oral submissions. The times which were mentioned at the Full Court hearing, together with other times that would have to be made available, exceed the four days which has been allocated. It would therefore be necessary to limit the times that have been sought.

Mr Sofronoff, I will leave your time to one side for a moment, as I will yours, Mr Keane. However, Mr Greenwood, your submissions relate, it seems, only to question 1C.

MR GREENWOOD: Yes, your Honour.

HIS HONOUR: Is there any reason why, having regard to the similarity of the argument between the Wik Peoples and the Thayoree People in respect to question 1C, the time that has been allocated to you should not be an hour and a half?

MR GREENWOOD: Your Honour, hitherto, our arguments were quite dissimilar but I have been given this morning a copy of the Wik submissions which I have not yet read. So, at present, I do not know the extent to which the two arguments overlap. We do wish, in exploring the fiduciary duty which we contend is upon the Crown, to look at American and Canadian cases, only a very few of which have been mentioned in the preliminary outline. I would not myself have thought that we could compress our submissions into that duration. The original thought was that it would take us about a day and a half.

HIS HONOUR: That is quite impossible, and as to the reference to the American submissions, perhaps that simply illustrates the point that I made with reference to those unspecified authorities.

MR GREENWOOD: I am very conscious of your Honour's suggestion.

HIS HONOUR: I am afraid you are going to have to add to your written submissions in order to abbreviate your oral submissions.

MR GREENWOOD: If your Honour pleases.

HIS HONOUR: In other words, the oral submissions will have to be restricted, I think, to matters of principle and the material in support will have to be contained in the written submissions. But I hear what you say about the disparity of argument and I will bear that in mind in a moment.

MR GREENWOOD: Thank you, your Honour.

HIS HONOUR: Counsel for Comalco, Mr O'Shea. On a previous hearing Mr Fraser thought the argument on Comalco would take two to three hours. That is, however, only one of the questions, though an important one. Again, could I ask is there some reason why the argument in support of the Comalco position could not be presented in an hour and a half?

MR O'SHEA: Your Honour, that may be possible. It depends, particularly, on what is said by those counsel who precede counsel for the fourth respondent. If I can say this: in terms of the way the extent of the appeal has been reduced by the decision of, particularly, the Wik Peoples, that, in one sense, does not affect the fourth respondent, particularly, because question 4 is still there and the fourth respondent would also wish to make some submissions, limited though, in relation to the pastoral lease question. An hour and a half may be possible, your Honour. There is nothing though, really, to reduce the previous estimate of two to three hours. Perhaps if I could say that two hours might be sufficient.

HIS HONOUR: Yes. It may depend to an extent upon what the Solicitor for Queensland has to say in respect of the Comalco legislation.

MR O'SHEA: Very definitely, your Honour.

HIS HONOUR: Yes. Thank you. Mr Thompson, Mr Buchanan on the previous occasion was conservative at 15 minutes.

MR THOMPSON: I think that is an adequate estimate, your Honour. We will be largely adopting what is said by Mr Fraser and Mr O'Shea and probably Mr Keane.

HIS HONOUR: Yes. There are, however, some additional points that are raised in the Wik Peoples' submissions which you may have to deal with but it would be, I would think, susceptible of some adequate consideration in written submissions and it may not be necessary for you to extend any oral submissions.

Solicitor-General for the Commonwealth. Mr Solicitor, what exactly are your interests as distinct from those of the Solicitor for Queensland?

MR GRIFFITH: Your Honour, of course it involves the whole issue of native title throughout Australia so, to some extent, as well as being a respondent in the action, it is representing the broader public interest.

HIS HONOUR: Yes. But in terms of the legal arguments, is there likely to be much advanced by you which would not be the subject of submissions by the Solicitor for Queensland?

MR GRIFFITH: Your Honour, we would say, of course, because of the capacity of the Commonwealth to put succinct arguments on issues such as this to the Court. But, your Honour, we would, of course, open up that completely in our written submissions and just speak briefly to the general principle in our oral submissions. We did give an estimate of not more than two hours, your Honour, and that remains and we could comfortably take one to one and a half.

HIS HONOUR: Yes. Thank you, Mr Solicitor.

MR GRIFFITH: Your Honour, may I say something while I am on my feet on this question of timing?

HIS HONOUR: Yes.

MR GRIFFITH: Your Honour, there is some difficulty in working out the overall timing as we see it because of the position of interveners. Firstly, we do not yet know whether or not all the interveners will be permitted to intervene and there may be a difference here between the State interveners and the Territory and the other interveners. Your Honour, we would have thought it would be very useful if the interveners could be put on terms to make very concise submissions rather than contemplating submissions of the length of the principal parties which have been filed and although we appreciate this is a matter for the Full Court to determine, your Honour, we would have thought there might be some utility for the interveners to be put on notice, if your Honour regarded that as appropriate, that it may be that the only submissions they may make on the merits are their written submissions and not oral ones.

I say that in the context, your Honour, that one intervener has indicated that it, to us informally, requires perhaps three hours or more. So, your Honour, we see the whole problem about time constraints as being related to the capacity of interveners, in effect, to take what otherwise we see should be the principal time for the parties. But we do accept that the States and the Territory are in a somewhat different position, your Honour. It is a point of general importance for the Court beyond merely this litigation.

HIS HONOUR: Yes. However, if a State takes a view that is significant to that State and is permitted to address argument that is relevant to that Stage, then those who have an interest in contradicting in respect of that Stage must be given an equal opportunity.

MR GRIFFITH: Of course, your Honour, so this is the whole question of where we do have time constraints, how far is it possible for the parties who have interests beyond that of immediate parties, in effect, to come in and appropriate substantial parts of that time which the principal protagonists should, we would have thought, on first principle, your Honour, have at their disposal to dispose of the issue actually before the Court. But we would mention as matters for the anxious consideration of your Honour and the Court as matters to be looked at rather than us proposing the solution.

HIS HONOUR: I am grateful, Mr Solicitor, because I will certainly give the indication that you suggest, namely, that it is a matter for the Court, ultimately, to determine whether any oral submissions should be entertained from the applicants for leave to intervene as distinct from their written submissions and that may, in itself, provide some incentive for the production of written submissions which are both precise and informative.

MR GRIFFITH: Your Honour having said that, could I make a final submission when your Honour has made final directions as to how matters might run in June? It is a separate point but a matter that I would wish to flag with your Honour.

HIS HONOUR: Yes. You wish to do that at a later stage?

MR GRIFFITH: Perhaps I will mention it now, your Honour. My understanding is that the Court intends to appropriate some four days for this hearing. In the event that matters fell one way rather than the other and it turned out that the matter could be completed in the oral hearing in, say, something slightly over three - and this may be a matter to be raised formally, your Honour, on Wednesday when the Hindmarsh Bridge matter comes up - I was contemplating that an application may be made to the parties in that Hindmarsh Bridge matter for the matter to be provisionally listed in the event that there were time available on the last day, but that is running over to the Wednesday matter. But if I may flag that for consideration.

BRENNAN CJ: Yes. Thank you, Mr Solicitor. Now, Mr Pettit, the times that are sought by the Solicitors for Western Australia, New South Wales and South Australia?

MR PETTIT: Yes, your Honour. I would say at the outset that there is some difficulty, I am afraid, in that instructions I received from South Australia and New South Wales were received before I had notice of the reduction in the grounds of appeal. However, I am instructed that the Solicitor-General for New South Wales will require half an hour and the Solicitor-General for South Australia has intimated that he requires one hour. Your Honour, that is the matter on which I am not able to inform the Court whether that was based on Mr Selway's intention to speak on all topics or primarily upon the pastoral lease issue. It may well be that the learned Solicitor-General requires less time than that, I am simply not able to say.

HIS HONOUR: And Western Australia?

MR PETTIT: Western Australia: you might recall, your Honour, that we initially intimated we might take up to three hours but that can be drastically reduced and we would say an hour and a half would be adequate. We do intend to address all the issues and there are some issues in which we feel it is important that the Court is aware of the ramifications in Western Australia, particularly in the case of pastoral leases where there are so many, and also in the case of State agreements where, I think, there are some 66 State agreements presently in operation.

HIS HONOUR: Thank you very much. Ms Webb, if leave were given to the Solicitor for the Northern Territory to intervene, what time would be required?

MS WEBB: Your Honour, it would very much depend on the grounds covered by other parties and interveners. At the very outside, we would say an hour. That would be the very outside we would need to make oral submissions but it could be reduced depending on the grounds covered by others.

HIS HONOUR: Are there any special considerations in the Northern Territory to which we ought to be alerted?

MS WEBB: We would be wanting to draw the Court's attention to respects in which there may be differences in the Northern Territory and to ensure that the Court was aware of that in the making of their decision and the ramifications that there might be.

HIS HONOUR: It would obviously be desirable in these areas, and this applies particular to Western Australia, New South Wales, South Australia and the Northern Territory, if the divergences between the statutory provisions there in force and those in Queensland were dealt with in the written submissions so that the Court could be apprised of the area of discourse before the actual oral hearing.

MS WEBB: Thank you.

HIS HONOUR: Now, the Northern Land Council: Mr Keon-Cohen, how long would you wish to take?

MR KEON-COHEN: If your Honour pleases, having heard the discussion that has preceded myself, we would wish to respond to the Northern Territory mainly in writing and particularly with regard to any divergences in the statutory history. Secondly, your Honour, I am happy to attempt to co-ordinate, if this is of assistance to the Court, the matters to be addressed by the three intervening parties - if I can put it that way - who appear before you today, those being parties who would all seek to support the appellants in the two matters. Now, that may be of use to your Honour in allocating time to the three interveners and in order to attempt to avoid duplication. Your Honour, I am likely to be led by Mr Sher in this matter, although that is uncertain. We would, your Honour, seek 15 minutes to half an hour.

HIS HONOUR: Now, in relation to the three interveners that you mention, that is the Northern Land Council, the Central Land Council, and what is the third?

MR KEON-COHEN: The other parties, your Honour, I was referring to are the parties represented by Mr McIntyre, being the Kimberley Land Council and other Aboriginal organisations in Western Australia and, thirdly, the parties represented by Professor Bartlett. I do not wish to in any way restrain what they might say, I simply offer to your Honour a suggestion in order to more efficiently deal with that element of intervening submissions.

HIS HONOUR: Yes, but you are not thinking in terms of a single oral submission on the part of those parties, you are thinking in terms of perhaps co-ordinating the written and oral submissions?

MR KEON-COHEN: Of those three parties, and the time suggestion I have made to your Honour of 15 minutes to half an hour is the time we would seek representing the Northern Land Council and the Central Land Council and it may be that following discussions between the three of us, the three of us can perhaps combine to reduce the total amount of time we occupy before the Court.

HIS HONOUR: Yes. Thank you, Mr Keon-Cohen. Mr Bartlett in Western Australia, how long would you expect to take if you were at liberty to do so?

MR BARTLETT: Your Honour, I would be happy to rely principally upon the written submissions and I would not anticipate more than 15 to 20 minutes being required in oral submissions, and it could be less. Our fundamental concern would be with the structure of the argument relating to extinguishment in connection with pastoral leases, your Honour.

HIS HONOUR: What do you mean by "the structure of the argument"?

MR BARTLETT: The nature of the steps involved in determining whether or not there was a clear and plain intention in questions such as whether the conferment of exclusive possession is even relevant in terms of determining if pastoral leases have extinguished native title.

HIS HONOUR: Yes. Thank You, Mr Bartlett. Mr McIntyre, you have something to add?

MR McINTYRE: Yes. I do still represent a separate party. However, we will be talking extensively to Mr Keon-Cohen and I would think that if we were given 15 minutes in oral argument, that would be ample. The other thing, perhaps, is that we would probably want to put some submissions in reply to what the State of Western Australia says, and perhaps if we were to do that on the same date as the Wik and Thayorre have been given, which is 4 June. Essentially, the parties whom I represent are here to keep an eye on the Western Australian Government and ensure that whatever position they put is put in a way which we see as balanced. So we would perhaps seek to put some written submissions in reply, perhaps by 4 June, so as to reduce any oral argument which would otherwise be necessary.

HIS HONOUR: Yes. Am I right in thinking, Mr Keon-Cohen, that you occupy a similar situation with respect to the Northern Territory as Mr McIntyre has indicated in relation to Western Australia?

MR KEON-COWEN: Yes, your Honour. We are concerned with a divergence of statutory history in the Northern Territory. What the Northern Territory Solicitor-General might say about that, and especially the impact of any decisions of this Court upon those differing circumstances.

HIS HONOUR: If the Solicitors-General for Western Australia and the Northern Territory have their submissions by the 28th of this month, then it would seem appropriate that Kimberley Land Council and others, Northern Land Council, Central Land Council and the Miriuwung People should have their submissions in reply all lodged at the date when others are lodging their reply, namely 4 June.

MR KEON-COWEN: Yes, your Honour.

HIS HONOUR: Mr Sofronoff and Mr Solicitor for Queensland, each of you thought a day. Having regard to the issues that have been defined, could you do it in four hours, which is half an hour short of the day. We have 18 hours altogether. Mr Sofronoff.

MR SOFRONOFF: The answer must be yes, your Honour, depending, of course, upon the dialogue that might develop; the debate that might develop but subject to that, yes.

HIS HONOUR: What do you say, Mr Solicitor.

MR KEANE: Yes, your Honour, we could. We will be concerned to put as much as we can in relation to the authorities and the competing views of the them and the analysis of them into the writing with a view to spending our time orally on matters of principle. On that footing, we would expect we could do it in four hours.

HIS HONOUR: Reference to some of the old Privy Council written cases might be of assistance in indicating the kind of assistance that the Court might look for; in order words, a developed argument replete with references to both the transcript or the appeal books and to the authorities which support the propositions.

Then this will be the tentative allocation of times. When I say "tentative", it could be varied by notice to the parties after the submission of the written arguments and it is, of course, open to the Full Court to vary the times. But subject to that, counsel would be expected to finalise their oral submissions within the times that I will now respectively indicate: for the Wik Peoples, four hours; for the Thayoree People, one and a half hours; for the State of Queensland, four hours; for Comalco, one and a half hours; for Pechiney, 15 minutes; for the Commonwealth, two hours; for Western Australia, one and a half hours; for New South Wales and South Australia, 20 minutes; for the Northern Territory, 30 minutes; and for the Kimberley Land Council, Northern Land Council, Central Land Council and the Miriuwung People, a total of 45 minutes to be allocated by them as amongst themselves. Now, that leaves some margin for overrun but very little.

MR JACKSON: If your Honour pleases, I forgot to stand up at the appropriate time.

HIS HONOUR: Mr Jackson, I must have forgotten to call upon you. Of course, I have, yes.

MR JACKSON: Your Honour might be pleased to know that at least the estimate on the last occasion was 15 minutes and I do expect really that all I want to say will probably be covered by Mr Keane anyway. So, I do not think I will cause too much tension with those arrangements.

HIS HONOUR: Yes. You shall have your 15 minutes, Mr Jackson.

MR KEANE: Your Honour, might I just mention one further matter in relation to this?

HIS HONOUR: Yes, Mr Solicitor.

MR KEANE: The Solicitor-General for Victoria is still awaiting instructions as to whether Victorian should seek leave to intervene or not. As of Friday he did not have those instructions one way or the other and as of Friday his view was that if he received instructions to seek to intervene he might take up to an hour and a half. Can I just inform your Honour of that possibility and, of course, that estimate on his part was based upon a case which is a little different in terms of the extent of what is involved than is now.

HIS HONOUR: Yes, and in particular the limitation on power which would be of significance. I should indicate that although those indicative times have been given, they are by no means to be taken as giving an indication that leave to intervene will be granted by the Court to any applicant for intervention, but if the application for intervention is refused, then of course some of the time which I have indicated would be available for distribution to other parties. If there are some particular reasons why those times should be departed from, it would be desirable for a submission accordingly to be brought to the Court's attention before the day of sitting. We will obviously have to deal first with applications for leave to intervene and then proceed to the hearing.

Are there any other matters in which directions are required by any party? I thank you for your attendance and the Court will adjourn to a date to be fixed.

AT 11.57 AM THE MATTER WAS ADJOURNED