Fejo and ANOR v Northern Territory of Australia and ANOR D7/1998 [1998] HCATrans 249 (23 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D7 of 1998

B e t w e e n -

JIM FEJO and DAVID MILLS on behalf of the LARRAKIA PEOPLE

Appellants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

OILNET (NT) PTY LTD

Second Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1998, AT 10.16 AM

(Continued from 22/6/98)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Solicitor.

MR BURMESTER: Your Honours, when we finished yesterday, I was answering your Honour Justice McHugh about why this case is different from Wik and I referred to the necessary intention that should be inferred from the grant of an estate in fee simple and, in this particular statutory context, it is the common law that gives content and meaning to the grant.

Now, in our submission, there is a further consequence of the common law being the relevant law that defines the incidence of the grant in this case. At a more fundamental level, the common law says that an interest held in fee simple is held directly of the Crown under the doctrine of tenure. So, the Crown, in other words, has the ultimate proprietary title from which the freeholder's title derives and, in our submission, the intention is clear that the Crown intends to dispose exhaustively, when it makes a fee simple grant, of all the interests in the land which may be held by a subject.

Your Honours, this is dealt with in some detail in paragraphs 412 to 428 of our primary submissions. We contend that this submission is entirely consistent with his Honour Chief Justice Brennan's analysis of the effect of a grant of an estate in the Wik Case, especially at pages 90 to 91, which we would adopt fully and, in our submission, his reasoning on this issue can stand consistently with the decision of the majority, which ultimately turned on the sui generis statutory nature of the particular interests to which it was held the doctrines of estate and tenure did not apply.

The doctrine of tenures also, your Honours, emphasises that there is no scope, once a fee simple grant is made, to recognise Aboriginal customary law as continuing over the land, so that there is a subsequent ability to enforce such law if the fee simple ends.

GUMMOW J: What do you say, Mr Solicitor, about an alliance, I think by analogy, on the English customary rights and commons and so on?

MR BURMESTER: Your Honour, we say that there is no evidence that such customary rights are part of the common law in Australia. Even if they are part of the common law in Australia, the rights that are recognised are not burdens on the land; they are, rather, quite different from the sorts of customary rights that are being sought to be recognised in terms of native title and, furthermore, they are subject to statutory modification or extinguishment and, in this case, where a grant is made in fee simple under a statute, we say there is no scope for any continuing separate custom to be recognised as existing over the land.

GUMMOW J: Well, they seem to depend either on grant, presumed grant, or something out of copyhold tenure, which we never had.

MR BURMESTER: That is correct, your Honour, and they depend on having existed since time immemorial, going back to 1189. We say, in the Australian context, there is probably no scope for such equivalent custom to be recognised. And we say the grant in freehold would destroy such customs which, if they were derived from copyhold, or things like that, or were of a similar nature, that the grant, itself, of freehold would destroy such custom.

Your Honour, as I was saying, in paragraphs 4.9 to 4.11 of our principal submissions, the suggestion that customary law can continue and be subsequently enforced amounts to recognising that Aboriginal customary laws continue to operate in parallel with the laws of Australia. That would require, in our submission, a recognition of two sovereigns in the country and is simply not open to this Court to find on the basis of past authority, and those authorities are collected in footnote 51 of our principal submissions. If there were recognition of the reality of Aboriginal customs, and that was sufficient, then there would be no reason to limit the rights to pre-sovereign rights, or to hold native title as extinguished by abandonment, or to limit native title to land to which it related at the time sovereignty was acquired. Again, in our submission, that would be a fundamental departure from the principles on which native title is recognised.

Your Honour, there has been some argument put that there may be such matters as possessory title which may need to be determined at some future time based on prescription or something like that. In our submission, such possessory title cannot be native title. The concept of native title is well settled, refers to rights in relation to land which pre-date the acquisition of sovereignty which are recognised by the common law, and it does not refer to rights which have some other origin, such as a possessory title, which the Commonwealth contends would not, in any event, be recognised. And, your Honours, no claim, in these proceedings, to any possessory title has been made, as distinct from native title. The Court was simply not seized of the issue and cannot act on the basis of hypothetical possibilities.

Your Honour, finally, in relation to compulsory acquisition of the land by the Commonwealth, we say the relevant matter is the intention at the time the original grant in fee simple was made. How the fee simple ended is irrelevant. But even if it were relevant, and you only had, for instance, the compulsory acquisition, it is clear the compulsory acquisition would mean there was no scope whatsoever for any continuing native title, and I have referred to Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1. Your Honours, that concludes all I have to say this morning.

GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for Queensland.

MR KEANE: If the Court please, we adopt what has been said by our learned friends for the Northern Territory and the Commonwealth. May we take a moment to take the Court to some references in relation to points which arose in the course of the exchange between your Honours and our learned friends yesterday. Firstly, your Honour the Chief Justice raised with our learned friend, Mr Basten, a question whether there was any assistance to be had in relation to the meaning of "extinguished", as the term is used in the context of section 11 of the Native Title Act 1906 .

If we can refer your Honours to the Native Title Act Case - that is, the decision in Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373. While that is being got out for your Honours, if I could just remind your Honours that in the joint judgment in that case there was a very full discussion of the scheme and operation of the Act. The first point to be made by reference to it is at 453, in the first full paragraph of text on the page. It is a short passage. I will read it to your Honours, if I may:

The first of the enacted objects of the Native Title Act is "to provide for the recognition and protection of native title" (s 3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title "is not able to be extinguished contrary to this Act." The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title.

It is our submission that the characterisation of extinguishment as a defeasance does suggest that extinguishment is something more, and more permanent than a suspension of the exercise of rights.

GUMMOW J: And at 457, about point 6, there is a discussion of Subdivision B of Division 3.

MR KEANE: Your Honour, we were about to take your Honours to that to make the point that, in relation to what our learned friend Mr Pauling said in his exchange with his Honour Justice Kirby yesterday, to take your Honour to that passage, which makes the point that Subdivision B of Division 3 contains provisions conferring a right to negotiate and, if your Honours would read that paragraph, which goes over the page, it can be seen, in our respectful submission, that when section 28(1) speaks of an act being invalid, it is speaking of the species of future permissible act dealt with in section 26; not any future permissible act, but only such a future permissible act, and that is consistent with the provisions of section 23, which mark out for special attention, by subsection (2), Subdivision B, which deals with the right to negotiate, to which it refers in terms.

KIRBY J: This is a little tricky, because the statute is quite complex and requires some careful study.

MR KEANE: It does indeed, your Honour.

KIRBY J: But if the Court was right in talking of the prima facie sterilisation, then the sterilisation is really ineffective if, in fact, by an intermediate step, native title can be lost simply by bringing in an intermediate party.

MR KEANE: Your Honour, quite. That is an important point. It is a point which was raised by Justice Gaudron yesterday in exchange with Mr Basten, where her Honour raised the issue when one speaks of invalidity, is one speaking of power, or is one speaking of a denial of effect on native title. Your Honour, we note, with respect, that in the passage from 453 which speaks of sterilisation, it is sterilisation of all acts which would otherwise defeat native title and, your Honour, the point we wish to make - and we submit that it is supported by the next passage we will take your Honours to - is that, in the context of the Act, "invalidity" means ineffective to affect adversely native title. It does not mean, with respect, a denial of power to authorise a grant; it simply denies effect to affect native title, and can we take your Honour, in that regard, to 469 - - -

KIRBY J: But I thought the point you were making was that the Court was emphasising, as it seems to have been doing, that native title is very vulnerable to extinguishment, and that the purpose of the federal Parliament in enacting the Native Title Act was to give a measure of protection to native title, in the terms expressed, of course. But what is concerning me is that if the Act properly construed means what Mr Pauling said, and what you support, then, really, the protection of that vulnerability is very limited.

MR KEANE: Well, your Honour, one has to look at what the Act does do, and the terms in which it does it, before one can say that it is unlikely to have that effect. Can we come back to your Honour's point about the needles, eyes and camels in a moment, after we take your Honour to a passage which leads into that? The passage is in the Native Title Act Case at 469, where there is a discussion of what is meant by "valid" and "invalid" in the context of the Act. That discussion commences at about point 2 on page 469, the incomplete paragraph:

The Commonwealth has chosen to prescribe the areas available to control by other laws by prescribing what State and Territory laws are "valid" or "invalid" and, if valid, the conditions of validity.

The use of the term "valid" raises the question whether the Native Title Act is attempting to prescribe conditions relating to the power to make or the making of a State law, even though the validity of a State law cannot be affected by a law of the Commonwealth. But the term "valid" (or its derivatives), which appears in more than one of the impugned provisions, has more than one meaning and it is defined in the Native Title Act to include "having full force and effect".

And if we could invite your Honours to read the balance of that paragraph, which concludes:

Therefore the use of the term, its derivates or its opposite in the impugned provisions so far as those respective terms relate to a State law, must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the Act.

In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by section 11(1). In using the terms "valid" and "invalid", the Act marks out the areas relating to native title left to regulation by State and Territory laws or areas relating to native title regulated exclusively by the Commonwealth regime.

If your Honours would go over to page 470 we would invite your Honours to read the first full paragraph of text which appears at about point 4 or 5 on the page which once again goes back to deal with Division 3 of Part 2 relating to future acts - future acts including the particular kind of future acts dealt with in section 26, they being the future acts that attract the right to negotiate regime - and then draw your Honour's attention to the bottom of 471 in the last paragraph where:

Permissible future acts fall in to one of three categories:

(i) permissible future acts covered by s 26(2) to which Subdiv B applies.

Then it goes on to prescribe the procedure that Subdivision B prescribes which:

must be followed and the conditions that must be fulfilled if a proposed permissible future act covered by s 26(2) is to be valid -

Your Honours, plainly that is valid in the sense of affecting native title. If we can invite your Honours to read over the page to the end of that paragraph, and in particular the last eight or so lines. Category (i) which is the category we just referred to, the special category of permissible future acts under section 26(2):

Category (i) creates a gateway -

Not, perhaps, the eye of a needle, but a gateway to validity:

through which other permissible future acts must pass if they are to affect the rights and interests of the holders of native title. Subdivision B defines the scope of the category (i) exceptions to the general protection of native title declared by s 11(1). It does not purport to impose upon a State Parliament or other "Government party" any positive obligation or duty to do anything or to follow particular procedures.

It is important to appreciate, in our respectful submission, that these provisions are concerned with whether native title, actual native title, is affected; not whether there is power in the State to do an act. It is, in our respectful submission, to misread what the joint judgment in Waanyi said in this regard. If we can take your Honours to that now, that is North Ganalanja Aboriginal Corporation v State of Queensland 185 CLR 595. The relevant passage is at 616. We take your Honours to this because it is the passage that is the fons et origo of the primary submission put on behalf of the appellants in this case. We can take your Honours to 616 in the second full paragraph of text on the page where there is reference to Subdivision B of Division 3 - that is the section 26 rights to negotiate provisions, your Honours. There it says that that subdivision:

denies the Governments of the Commonwealth, States and Territories power (s 28) to confer, inter alia, mining rights (s 26(2)) in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant (s 29(2)(b)) and a procedure is followed through -

The first point we wish to make there is that that passage in a judgment written after the Native Title Case, and by a number of those who were the authors of the judgment in the Native Title Case, must be understood to be referring to effective to affect native title. If your Honours go on you will see that after the passage to which our learned friends refer - that is the passage at about point 5:

Thus, once an application for determination is accepted, the Act maintains the status quo.....unless the parties negotiate -

There are really two points we make about this: the first is that, of course, this is squarely in the context of a section 26(2) permissible act, as our learned friend, Mr Pauling, urged; and secondly, your Honours, with respect, need to read that passage in context both what goes before, which is concerned with ineffectiveness to affect native title, and what goes after, your Honours, where, at the bottom of the penultimate paragraph on the page, the passage says in terms that:

the Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interest.

The point is, with respect, your Honours, that in so far as the right to negotiate regime has been enjoined, and in so far as a government might purport to make a grant that would be ineffective to affect native title but that might otherwise lead to the destruction of the subject matter thereof, there can be no doubt, in our respectful submission, that in an appropriate case an injunction could be restrained preventing that happening. But the point we wish to make, with respect, is that this passage recognises that there is no extra special right created and, in those circumstances, where there is not an arguable case of native title, there is no reason why a court would prevent the grant from occurring where it is demonstrable. There is no serious question to be argued, whether there was native title or not.

GLEESON CJ: Mr Solicitor, when did the use of the word "extinguish" or the use of the concept of extinction begin in this area of discourse? It is a word that seems to have been in use for a substantial time, but what is its origin, do you know?

MR KEANE: Your Honour, it certainly arises in our jurisprudence in Mabo (No 2). I am not able to answer your Honour immediately as to its particular provenance in that case. In Mabo (No 2) 175 CLR 63, in the judgment of Justice Brennan, as his Honour then was, it is said at point 5 on the page:

Sovereignty carries the power to create and to extinguish private rights and interest in land within the Sovereign's territory.

Reference is there made to the American decision, Passamaquoddy Tribe v Morton, but I have to confess I am not in the position to tell your Honours that the term "extinguish" is a term derived from that source.

GLEESON CJ: I notice, for example, in the Native Title Act Case, there is reference to the concept of extinction and English authority. I was wondering whether it is possible to identify the point at which people began to speak in terms of extinction rather than, for example, suppression.

MR KEANE: Your Honour, I am not sure whether that dichotomy was a dichotomy that was ever observed. One of the, and I would stand to be corrected on this, but I do not apprehend that in the cases a distinction was recognised such as that with which we are familiar in relation to Statute of Frauds, for example, where, in the absence of a written memorandum, one cannot enforce rights, but the rights may nevertheless subsist underlying the absence of an executed memorandum. It goes only to enforceability, not to the substance of one's rights. With respect, I do not know that that has ever been recognised.

GLEESON CJ: That does not seem a concept that is easy to relate to title.

MR KEANE: I have been referred to paragraph 3.3 of the submissions of the Commonwealth of 10 June which refer to the use of the term:

"extinguishment" and its use in property law where the suspension of rents and easements, for example, is contrasted with their extinguishment.

And there is a reference to Coke on Littleton in the footnote. What I do not think I can refer your Honours to is some discussion of extinguishment being different from suspension. I think, with respect, probably because it was always regarded as a once and for all consequence of the exercise of sovereign power to displace, permanently, pre-existing native titles, on the footing that once the Parliament has acted, or once the executive has acted pursuant to statutory authority, there was no basis on which the common law could continue to recognise pre-existing rights.

GLEESON CJ: One does not normally think of title to land as something that waxes and wanes.

MR KEANE: No, your Honour.

KIRBY J: Can I just ask you on a little matter that is worrying me? Section 26(2) seems to have three categories. There are what one might call the mining categories - that is paragraphs (a), (b), (c), and there is the compulsory acquisition category, that is (d). Then there is another category (e) in respect of which the Commonwealth Minister has approved any other act. Now, is there anything under (e) that is relevant to this case, or can we just ignore (e)?

MR KEANE: We can ignore it, your Honour.

KIRBY J: If the purpose of the Act is the sterilisation of this extremely fragile form of title which the common law recognises, but recognises may be readily extinguished, what will stop that sterilisation having effect would seem to be, on your theory of the operation of the Act, that a State or Territory may grant title, although a claim has been lodged, it has been received and accepted by the registrar, to a third party, and the third party subsequently secures a right to mine, but by getting the title in fee simple it has extinguished, or can arguably say that it has extinguished the fragile native title. The result of that is that though the claim has been made and is pending, and would, if things were done directly, attract the right of negotiation and the sterilisation and protection of the Act by, as it were, taking two steps, you circumvent the protection of the right of sterilisation and of negotiation and protection that the Act has been at such pains to create.

MR KEANE: I think the answer to your Honour's question, the hypothetical question your Honour raises, is that the hypothesis cannot ever happen because the grant of a mining lease under all the relevant regimes is not something that can occur by the grant of a freehold by a citizen or a corporate entity. The rights in minerals are vested in the Crown. The right to mine occurs by reason of the grant of a mining lease under the relevant mining regimes. Such a grant is apt to override the right of freeholders, because the statute says it may. So that, your Honour, there is not the scope, in our respectful submission, for getting the camel through the needle's eye, or through the gateway that your Honour fears, or that is raised in the hypothesis that your Honour raises.

The last thing I wanted to say was to simply take your Honours to the North Ganalanja Case for the purpose of indicating as well, in support of what my learned friend, Mr Pauling said yesterday, its narrow basis, to refer your Honours to page 617 from about point 5 where the passage begins halfway, or two-thirds of the way down the paragraph:

To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims.

Then three reasons are given why that is so. If we can invite your Honours to read those reasons, we make two points about them. Firstly, in this case, the submission of a claim for determination of native title occurred in this case by reason of the claim of the appellants for a declaration of native title - the first point. The second point is that the three reasons why it was said that the procedure had been inverted in that case do not apply here, in our respectful submission, for the reasons our learned friend, Mr Pauling, advanced, and for the reason that if the respondents and those who appear in their interest are correct in the contention that a grant of freehold does extinguish, in the sense of defeat, native title, then the third reason - that is, that there is an arguable claim - also disappears. There is simply no arguable claim to native title. If it please the Court, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor.

MR SELWAY: If it please the Court, our submissions deal with three matters. The first involves the extent to which one can safely rely upon overseas authority relating to native title and the recognition of customary law. Our submission is set out in paragraph 5 of the written submissions which is to the effect that the law in each jurisdiction reflects the history of that jurisdiction. As a result, cases from other jurisdictions need to be used with some caution. In paragraph 4, the last two paragraphs of our written submission, we point out what we say are the relevant historical differences so far as Australia is concerned, the consequence of which is set out in the appendix of our written submission where we contrast what we say the recognition of Aboriginal customary law is in the United States, Canada, New Zealand and the former West African colonies.

In our submission, that comparison shows that the law has developed quite differently in each of those jurisdictions and again leading to the point where some care needs to be taken to ensure that one is comparing apples with apples. We make that submission because a number of the submissions put before the Court place significant reliance upon overseas cases and we say that when they are considered in depth they may not be particularly helpful.

KIRBY J: There is this much in common, that at least in the common law countries, if we leave aside the former Rhodesia which was in the papers yesterday, they are all cases where settler societies are trying to adjust their legal system and its concepts with the claims of indigenous people which were not recognised originally.

MR SELWAY: Yes, your Honour, but the difference - if one takes Canada for example, the history of treaties and the accommodation of the law of British Columbia, for example, with the treaty law that is applied in the rest of Canada, with the Indian Acts that have been passed in that country, with now the constitutional provisions in that country, it is not surprising, we say, that at the end of the day there may well be developments in Canadian jurisprudence that are not directly applicable. I think your Honour drew attention at least to the US differences in Wik, and I think your Honour Justice Gummow did the same for Canada, and we make the point that it is proper that those distinctions exist, it is not surprising.

One quick matter I should mention, your Honour the Chief Justice raised the question of where the word "extinguishment" comes from. At page 45 of our materials is part of an article by Berman on the concept of Aboriginal rights in the legal history of the United States, and refers to submissions made in the case of Fletcher v Peck, and your Honours will see from that that the word "extinguishment" is used in that context. That was 1810. US jurisprudence seems to us to be a reliance upon Spanish international law combined with the principles of US sovereignty and treaties. If that is where it comes from, it may be that the source is even further back in Spanish international law, but that is certainly a reference back in 1810 in submissions which seems to have been accepted and followed through in the US cases.

Your Honours, in paragraph 6 we set out what we understand to be the Australian position. If I could draw the Court's attention particularly on page 5 to paragraphs (g) and (h), where we say that the intention to extinguish is to be determined from the legal effect of the grant and that that effect is to be ascertained from the terms of the grant and the statute under which it is made. We would have thought that proposition was not disputed, though some of the submissions made about the letters patent would seem to suggest that it may be.

That leads us, your Honours, to the question of the letters patent which are dealt with in paragraphs 7 and 8. We say that point is misconceived. Firstly, we say that the letters patent in terms have no relevance whatever to the Northern Territory, and that may be a sufficient answer. Unfortunately, because the submissions made raised questions about land grants in South Australia as well as the Northern Territory, if I could take the Court's time to at least say something shortly about them, what we say is the subjective intent of various officers of the Colonial Office are no more relevant to the question of extinguishment than is the subjective intent of South Australian officials or anyone else. We say that the correspondence set out in the appellants' submissions, apparently setting out the wishes of the Colonial Office, as against what we say the wishes of British Parliament had been, are irrelevant unless reflected in some document having legal effect.

The issue is, in effect: what were the terms of the grant and what were the terms of the relevant statutes? By the time of South Australian colonisation the relevant statute was the Colonisation Act. That may be set out in various volumes of material before your Honours, but at least it is set out at page 259 of the South Australian materials. I do not need to take your Honours to it, but if I could ask your Honours to note that section 1 of that Act enabled the King to establish the province or provinces, and that appears to be the power under which the letters patent was made. Section 2 enabled the King to establish a legislature. That was done by an Order in Council which is not before your Honours. That Order in Council did refer to the letters patent and the proviso but did not itself contain any condition limiting the powers of the legislature in relation to Aboriginal rights.

Section 6 gave the power to the colonisation Commissioners, a somewhat peculiar South Australian invention, to make grants of public lands which were declared public lands, and section 20 made, in effect, those declared public lands security for any losses on bonds issued by the South Australian Commissioners. At page 265 is the declaration of public lands, and your Honours will see that all public lands in the State were declared as public lands except those needed for, I think, roads and other public works.

GUMMOW J: Colony.

MR SELWAY: Colony, yes, I apologise, your Honour. What we say is the proviso to the letters patent did not limit the powers of the colonial Commissioners given by the statute. That is set out at paragraph 8(c) of our written submissions, and your Honours will be pleased to know that after last week's events, the learned Solicitor-General for New South Wales and myself have made up, and we now adopt paragraphs 3 to 13 of his written submissions as to the effect of the proviso. Your Honours, then from 1842 the position in South Australia in respect of land grants was the same as in all other colonies. Grants were made under the Imperial Act of the Wastelands Act, and then were made under various colonial Acts from 1857, and that is set out in paragraphs (d) to (g) on pages 6 to 7 of our written submissions.

All those various Acts contain a statutory definition of "wastelands", which includes lands where the Crown holds the radical title, even where that radical title would be subject to a burden. That issue is referred to in Mabo [No 2] 175 CLR 66. Consequently, what we say is that at all times there was a statutory power to make land grants in South Australia which would extinguish native title. If, on the other hand, and contrary to our submissions, the letters patent are read in some way as limiting the power of the Governor to assent to colonial legislation so that the various Crown Lands Act and Wastelands Act in South Australia were invalid, then what we say is that those Acts have subsequently been validated, and we refer to paragraphs (h) and (i) of our written submissions.

If I could take the Court quickly to the Colonial Laws Validity Act, that is at page 284 of our materials. Your Honours will see in section 7 is a specific provision validating all South Australian laws. Could I also refer your Honours to section 4. It is put as well that the Governor's instructions contained a proviso and that there had been a failure to comply with that. Your Honours may recall that Justice Boothby in South Australia had held the Real Property Act invalid, in part because it was interference with common law rights and in part because the Governor had not complied with his instructions. That was one of the reasons why the Colonial Laws Validity Act was passed, to sort out that problem.

Your Honours will see that section 4 of the Colonial Laws Validity Act specifically says that no law is invalid by reason of non-compliance by the Governor with instructions. This is an argument that may have had some success if put before Justice Boothby but, with respect, it is 130 years too late. If it please your Honours, those are the submissions for South Australia.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court, we rely on our written submissions in this matter and adopt the submissions of the first respondent and those intervening in support of the first respondent. Your Honours, in light of what has been said this morning, all of the points which we were proposing to make have been made, and anything we would say would be bordering on repetition, and we have nothing to add to our written submissions.

GLEESON CJ: Thank you, Mr Solicitor.

MR KATZ: If the Court pleases, time does not permit any sustained development of the written submissions which we have already filed, and if I may, I will limit myself simply to dealing with a few miscellaneous matters which have arisen. Your Honour the Chief Justice asked this morning about the historical derivation of the use of the notion of extinguishment. May I give your Honours some references in that respect. Chief Justice Marshall's reasons for judgment in Johnson v McIntosh (1823) 8 Wheat 541 at page 586, introduced the notion of extinguishment. His Honour there said:

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.

That terminology has been adopted subsequently in terms in the Supreme Court of Canada, if I could give your Honours a further reference, Calder v Attorney-General for British Columbia (1973) 34 DLR (3d) 145 at 160. I am sorry, I do not have the authorised report.. During the course of the 19th century the Judicial Committee of the Privy Council, hearing appeals from Canada in connection with indigenous title, used the notion of extinguishment. If I could give your Honours some references there, first, St Catherine's Milling and Lumber Company v The Queen (1889) 14 App Cas 46 at page 55, where the committee said:

It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

That passage has since been approved in subsequent decisions of the Judicial Committee of the Privy Council. Perhaps one further reference in the early 20th century, the Judicial Committee as well, in re Southern Rhodesia (1919) AC 211 at page 234. Yesterday, your Honour Justice Kirby expressed some interest in the progress of the Yorta Yorta native title claim, and I think that a certain ghost council referred to the fact that there had been a judgment in reserve for about a month and a half. At page 11,535 in the transcript, his Honour Justice Olney said this:

It can be gathered from what I have said that I am unlikely to bring down a decision next week or indeed next month, and the betting on whether I get to it next year is probably a more appropriate matter for consideration.

Lastly, may I refer to the notification of the acquisition of land by the Commonwealth which appears at page 29 in the appeal book, to make a number of points about it. These points are related to paragraphs 14 through to 20 of our written submissions. We have drawn attention to the fact in our written submissions that section 16(1) of the Lands Acquisition Act of the Commonwealth applied to the acquisition of the subject lands. In paragraph 18 of our submissions we draw attention to the fact that the 1906 Act was not directly applicable to the land. Rather it became applicable through the indirect medium of the further statute called the Northern Australia Act 1926 , and it was section 55 of that Act which rendered the 1906 Act applicable in the Territory, subject to qualifications. The 1926 Act had a brief life - it was repealed in fact in 1931 - but that equivalent provision had appeared in the Northern Territory (Administration) Act 1911 , and once the Northern Australia Act 1906 was repealed, there was a re-enactment of the Northern Territory (Administration) Act with equivalent provisions.

So that it was really through the medium of section 55 of the Northern Australia Act rather than directly to the Lands Acquisition Act that the Commonwealth provisions were applicable to the subject land. In that respect, there appears to be a slight but irrelevant error in the notice of acquisition itself. Of course, a misstatement of the source of the power would not affect the validity of what was done, as this Court has said on numerous occasions, including, I think, most recently in Brown v West, the case about the postage allowance of federal members of Parliament.

In our written submissions, we draw attention to the fact that this Court has itself pronounced on the effect of section 16(1) of the 1906 Commonwealth Lands Acquisition Act which, as I say, was directly applicable at least through the operation of the Northern Australia Act. In paragraph 16 we set out a quotation about the effect of acquisition under that statute. May I draw attention also to one further passage which we did not refer to, and that is a passage which appears in the last paragraph on page 23 in the joint reasons of Chief Justice Knox and Justice Starke, in which there is a reference to the fact that the effect of a notification is that the:

piece of land.....and all interests in and rights over it, whether in the ownership of the Crown or a subject, vest in the Commonwealth.

Finally, my learned friend the Solicitor for the Northern Territory referred your Honours to section 20 of the Commonwealth Lands Acquisition Act which imposed an obligation on the appropriate official in any State or part of the Commonwealth to take steps to alter the register in consequence of the acquisition of land - - -

KIRBY J: Which Act was he referring to? There have been several such Acts.

MR KATZ: I am sorry. My learned friend was referring to the Commonwealth Lands Acquisition Act, section 20, which provided:

If a copy of the notification in the Gazette, certified under the hand of the Attorney-General, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall register it in the register and in the manner as nearly as may be in which dealings with land are registered, and shall deal with and give effect to the notification, as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Commonwealth.

It was held in the case, to which we refer in paragraph 16 of our submissions, that that provision was incapable of requiring a State official to register the title but the case did not go so far as to say that the obligation cast by section 20 on the appropriate official did not operate in respect of the relevant territorial official, and whether it be the case that section 20 was invalid only with respect to the State officials or, indeed, even if it was invalid with respect to the territorial officials itself, the fact is, as my learned friend drew to your Honours' attention, in this case there was the appropriate notification placed on the registrar by the Northern Territory officials.

KIRBY J: With all the other matters in this case, I do not think we have to explore that.

MR KATZ: If your Honours please.

GUMMOW J: Just before you go, Mr Solicitor, we have been taken to section 6 of the Northern Territory Land Act 1872 which says, in effect, wasteland has got to be dealt with under this Act.

MR KATZ: Yes.

GUMMOW J: We have been told that South Australia assumed dominion in 1863 and that before that New South Wales was the relevant colony in respect to what is now the Northern Territory.

MR KATZ: Yes, that is so.

GUMMOW J: Is there any New South Wales legislation in between self government in 1855 dealing with wastelands which is equivalent to this 1872 Act which would have applied, making the 1872 Act not the first statement that statute was the sole method of dealing with these wastelands.

MR KATZ: I am sorry, your Honour, I cannot presently answer that question, but if I may be permitted to do some research and report the result. If I can find anything useful I will certainly send a note to the Court if I may. If your Honours please, those are our submissions.

MR GRIFFITH: If the Court pleases, as the only non-Solicitor-General on this side of the record, now I have ascertained who my client is ,if I can make some short and final submissions.

Your Honours, as to the operation of the Native Title Act, our submission is that the tribunal under that Act has no power or function to make binding determinations as to the existence of native title in these claims or in respect of any native title claims. It is a facilitator to negotiation and agreement but, in the absence of agreement or in an unopposed application, and, we would submit it is clear, your Honours, that there could be no agreement here on this issue of whether the grant of the fee simple estate does extinguish native title rights, whatever they be without any possibility of revival, the matter must be determined by the Federal Court and, your Honours, never by the tribunal.

Section 74 refer back to sections 70, 71 and 73 limited to consent in unopposed applications but it is only the Federal Court which has jurisdiction and, of course, the relief sought by the applicants in this case in the Federal Court necessarily involved this issue. There are provisions for determination reports under Subdivision D, section 160 to 165, but your Honours will see that section 165 ensures that these aspects of the tribunal's activities have no "binding or conclusive" effect. That is at page 73 of the print.

In the provisions providing for registration in the Federal Court - that is Subdivision E which commences at the foot of page 73 for "Registration of determinations", we would submit, your Honours, that for obvious Chapter III reasons the Full Court of the Federal Court in Selpam v Fourmile [1998] FCA 67; 152 ALR 294 was obviously correct in holding this entire subdivision invalid for Brandy reasons. Particular page references to the Australian Law Report are pages 297 to 298 Justice Burchett, 314 to 318 Justice Drummond and 328 Justice Cooper agreeing.

It follows, in our submission, that the fee simple issue which is here identified may only authoritatively be determined by the Federal Court; indeed, we would say in respect of this issue it must be only this Court which may authoritatively determine this issue. For those reasons, we would submit that the provisions and protections of the Native Title Act are not subverted by the Court determining this issue, which is a pure issue of law, not dependent upon any fact other than the grant of an estate of fee simple over the subject land.

KIRBY J: I did not take Mr Basten to challenge the ultimate role of the Federal Court but his submissions were directed to the point that the Federal Court only got its opportunity to play its part after certain procedures were followed in the Act.

MR GRIFFITH: Your Honour, I was going to address this issue of the fragile protection that your Honour has referred to both yesterday and today and I hope, in that way, your Honour embraced the point which I understand your Honour has made in exchanges to this point and also the way Mr Basten puts it. But, your Honour, we do refer to the fact that this is a process which was engaged by the applicant seeking to exercise the equitable jurisdiction of the Federal Court.

Your Honours, what we say is that having been engaged, it is clear that the issues which have been raised as to whether or not there is suspension with the possibility of revival, or whether or not there can be concurrent existence of rights during the tenure of the fee simple estate which, of course, may be indefinitely and may be assumed would be indefinite, gives the choice, your Honours, between the cases put by all those appearing in the interests of the applicants which, in effect, gives the choice between saying there is suspension with the possibility of revival and also, your Honour, and it is asserted, as we understand the written submissions and arguments of each of my learned friends on my left, including those who are here with ghostly presence, that at the same time, your Honours, there are aspects of native title which may subsist concurrently.

KIRBY J: As that is the second reference to the ghostly presence, I think that counsel appeared on the instructions of the Aboriginal Legal Service who may not have quite the funds of others, though perhaps he ought to have sought these - - -

GLEESON CJ: His absence has been explained to me and it is for personal reasons.

MR GRIFFITH: Your Honour, I was unaware of that, but your Honour, I was seeking to refer to the particular submissions my learned friend made and even in his absence it will be necessary for me to refer to that which he said.

KIRBY J: I think we can just do without the ghostly presence.

MR GRIFFITH: If your Honour pleases. Your Honours, what we say is that the choices given between those submissions made by each of those in support of the assertion that native title may subsist and the view taken as to those who resist that, to the extent that they say the act of grant of fee simple in itself must determine all native title interests whether they have been identified or not at the time of issue of the grant, our submission, your Honours, is that there is, we submit, a public interest in the court determining that issue now it has been identified as a pure issue to be determined independent of any issue of fact other than the grant in this case of the fee simple estate. It may well be, your Honours, the fact of the reversion to the Crown on the acquisition - the Crown of the Commonwealth - does not affect the basic issue as to whether or not the grant itself created an absolute extinguishment.

GAUDRON J: Why do you talk about it as a reversion to the Crown?

MR GRIFFITH: Your Honour, perhaps I should not use that expression. I should say the assumption by the Crown in right of the Commonwealth of the estate in fee simple upon the acquisition pursuant to the terms of the Commonwealth Act for the purposes of the Commonwealth as being an acquisition under the acquisitions power. But our submission, your Honours, it makes no difference whether the present owner is regarded as being the Crown as the registered proprietor under the Torrens system as operates in the Territory or whether it can be regarded, which it seems not in this case, a case of the Crown estate merely reverting on cesser of the alienation.

Your Honours, we would say that a decision on this matter must be conducive to the efficiency of determining native title claims. My learned friend, Mr Castan, referred to scores of parcels of land involved merely in the Yorta Yorta case and, your Honour, my junior who has spent the last 2.5 years of his life engaged in the trial in that matter informs me that the submissions in that case on the issue of fee simple involve but a few pages out of some thousands of pages of written submissions.

My learned friend, Mr Katz, referred to the fact that judgment may be expected some time this year or more likely, next year, and your Honours, it would seem that the Western Australian case is in no better position to isolate the fee simple issue. By the time judgments are given, your Honour, on the myriads of hundreds of issues which are before the trial judge in each of those matters and then they proceed before the Full Court, it could well be in the year 2000, 2001.

KIRBY J: The arguments of convenience are overwhelming. The question is whether the Act requires a different procedure.

MR GRIFFITH: Your Honour, yes, and I am seeking to address that.

KIRBY J: If it does then arguments of convenience will not weigh.

MR GRIFFITH: Your Honour, I will move on to the question of the Act. Your Honour, in our submission, if it is the case that all pre-existing native title rights are extinguished by the grant of the fee simple, it would be an abuse of process to allow the process of right to negotiate to be maintained on the acceptance of registration of the claim under the purposes of the Act and that is so, we would submit, whether or not the fact of the grant of fee simple is disclosed or not disclosed.

GUMMOW J: Is there a scope to amend what is disclosed? It would be a bizarre system, the administration, if that was not possible.

MR GRIFFITH: Your Honour, with respect, we would agree that it is somewhat bizarre, particularly when one juxtaposes the provisions of the Act with the strict position taken by this Court in the Waanyi Case but, on the issue of whether or not a native title interest, which is a good native title interest, may be broken by reason of action taken outside the Act, your Honour, we would say that section 11(1) ensures that native title will never be extinguished contrary to the provisions of the Act if native title does, in fact, exist and, of course, if eventually is found to exist and to be vindicated.

Your Honours, it is a matter of basic principle, for example, referred to by Chief Justice Latham in the James litigation that if there is legislation which is invalid, then the subject, and we would say a State as much as a subject, may act on the basis it is invalid, taking a risk as to the consequences if that view is mistaken. In the case of James it might have meant going to gaol. In the case of a State, your Honour, there are different sanctions but your Honours, if there is an arguable case of native title, one would suppose the application of the sort my learned friend made on behalf of the claimants in this case for an injunction in the Federal Court could be pursued.

McHUGH J: Your argument may be right generally but, in respect of Subdivision B cases, why would it not be proper, in the exercise of its discretion, for a court exercising equitable jurisdiction to reject any argument about the existence of native title but simply protect the native title applicants' statutory right to negotiate, for example?

MR GRIFFITH: Your Honour, it must be a matter of discretion. It is the one thing that may be affected by action of the sort my learned friend, Mr Pauling, indicated, that the right to negotiate may be effected but, in our submission, that is a matter of discretion both for the Federal Court and also for this Court, and if, your Honours, there is a clear issue of law which, if determined in one way, establishes beyond argument independently of the facts that there can never be any claim for native title interest with respect of that land which is subject to a grant in fee simple, in our submission, your Honours, it is appropriate to do what the trial judge did here in his discretion to say that as there can be no native title interest, I cannot exercise a discretion to grant an injunction and it is appropriate to dismiss the action entirely. It is a matter of discretion.

McHUGH J: That would be to subvert the intention of the Act, would it not, in respect of a case where Subdivision B applies?

MR GRIFFITH: Your Honour, what we say is it is a matter of discretion and we say that Waanyi does not dictate that one should mandate this protection of a right to negotiate, whether or not there has been disclosure of the grant of the fee simple when, if it is the case as it is asserted on this side of the Bar table, no native title interest at all can be established. Your Honours, if Waanyi is regarded as standing in the way of the Court taking that view, in our submission, the Court should modify Waanyi to the extent of taking what we submit is an appropriate, not merely common sense, your Honour, but a fair and just consideration of the circumstances to put what is a hopeless claim at an end.

KIRBY J: Justice McHugh in the Waanyi Case specifically said that there would be cases where, on full analysis, that full analysis taking some time, it may prove that there is no merit in the case.

MR GRIFFITH: Your Honours, if this was a leasehold case other than a pastoral lease, then maybe one could say it is a question of whether it is a lease such as a sardine factory or whether it is a temporary lease for only a month, what is the result, and that appropriate consideration should follow. But, in our submission, where one has a plain and simple legal issue which says either native title does exist or it cannot exist, as is here before the Court, in our submission, your Honours, it is to really subvert that which the Act seeks - - -

McHUGH J: How could that be so, Mr Griffith? If the hypothesis upon which Subdivision B operates is that there may be no native title but, nevertheless, the applicant is given a statutory right to negotiate and why cannot a court of equity protect that statutory right by simply ignoring the existence of native title altogether. It does not matter how strong your case is. After all, the right to negotiate is, in economic terms, a valuable right. Now the Parliament has given them that right.

MR GRIFFITH: Your Honours, in the context of the right relating to the statutory protection of native title claimants. Now, your Honours, in the context that one can assume by hypothesis that there is no claim to native title rights, we submit it is inappropriate for the Court to hold that the purpose of the Native Title Act is to give property rights, the valuable right to negotiate, your Honour, in circumstances where, as a matter of law, there can be no legal support for the claim to native title which the Act's structures intend to protect.

McHUGH J: It is a question of how you read the Act but it certainly seems to me, and certainly did at the time of Waanyi, that the legislature has conferred on applicants for native title a valuable economic right, a right to negotiate, in which they may be able to negotiate a position which legally they did not otherwise have.

MR GRIFFITH: Your Honours, it may be a right which is assumed on the basis of the deliberately suppressive information as to the underlying title issues and it may, as is postulated here, be a claim which, at law, is completely untenable.

McHUGH J: I know, but if they have suppressed something, then it may be a question that goes to the exercise of discretion, that a court would then refuse to injunct.

MR GRIFFITH: Your Honour, the submissions that we seek to make are that it is a matter of discretion and the Court, in its discretion, should not take a view that the Native Title Act intends to give this aspect of a valued right to negotiate in circumstances where, as a matter of law, the claimed native title interest is insupportable. Your Honours, really this exchange identifies a point of difference.

McHUGH J: Yes.

MR GRIFFITH: We say that it is a matter of discretion and the discretion here should be exercised to say, in effect, put an end to this. It is an inappropriate diversion of public resources, your Honours, to have this continue when the answer must be a nil return. But your Honour, that identifies the difference and on that basis we make the submission that Waanyi does not operate, we say, without exception and we say this is the clear case, on the assumption that the argument put with respect to the effect of the grant of fee simple is that which the Court does uphold.

Your Honours, referring again to Mr Castan's submissions yesterday, we understood one answer he gave to the Court before lunch as indicating that he did not contend that there could be a continuation of native title rights against a fee simple estate but, your Honours, I think after lunch he made it clear, we put it as the alternative, that such a submission was put and what we would wish to say is that when one looks at his submissions in reply of the Yorta Yorta Aboriginal community, particularly paragraphs 1, 3, 4 and 5, and it is sufficient just to go to the first sentence of each of those paragraphs, it is quite clear that on behalf of the Yorta Yorta people it is put, not only that there may be a revival of effective native title interests in the event that the fee simple estate reverts to the Crown, but also there are concurrent rights which may be asserted, one would suppose, against each and every fee simple estate in the terms which are postulated in their submissions.

Indeed, your Honours, we say that each of those who appeared in support of the claimants have asserted that they are such co-existing rights and, indeed, they must do so because otherwise they will be merely asserting that there is a revival in the future of native title rights which, by definition, we submit, is inconsistent with that which has been articulated by the decisions of this Court as the basis of that which is recognised by the common law in recognising and adjusting to recognise pre-existing native title rights.

Indeed, your Honours, we say that each of those who appeared in support of the claimants, your Honour, have asserted that there is such co-existing rights; indeed, they must do so, because otherwise they will be merely asserting that there is a revival in the future of native title rights which, by definition, we submit, is inconsistent with that which has been articulated by the decisions of this Court as the basis of that which is recognised by the common law in recognising and adjusting to recognised pre-existing native title rights.

So, your Honours, it is not put as an alternative to the suspension argument; both claims are put concurrently. Your Honours, it is curious how it seems each of those who have made submissions have seemed reluctant to accept, as I think his Honour the Chief Justice put to two of them, the description of suspension as being that which they are submitting as distinct from the extinguishment, which is that which is asserted at this side of the bar table.

CALLINAN J: Mr Griffith, do you say that a majority did decide that the Act means that a person without any worthwhile claim, a person with a worthless claim but who makes a claim, has a valuable right to negotiate?

MR GRIFFITH: In Waanyi, your Honour?

CALLINAN J: Yes.

MR GRIFFITH: No, we would submit to the contrary, your Honour, that the Waanyi decision involved a pastoral lease where, of course, we know - in that situation, your Honour, the approach taken by the Full Court we would accept as perfectly appropriate.

CALLINAN J: But the passage from, I think his Honour Justice McHugh - and I hope I am not misstating it - but his Honour seems to have said that this is a valuable right to negotiate and it may exist, even in a case in which, ultimately, no claim at all for native title can be made out. I hope I am putting correctly what his Honour said.

MR GRIFFITH: It is very difficult, your Honours, to parse that which a judge on the Bench has said.

McHUGH J: No, no, assume his Honour did say that, what about the other members of the Court? Do you say there is a majority for that view?

MR GRIFFITH: Your Honour, what we would submit is that Waanyi itself is authority dealing with the situation which arose in Waanyi, which was a pastoral lease, where the Full Court below had taken a certain approach which this Court - - -

CALLINAN J: Yes, but that is saying it is an obiter. Did anybody else subscribe to the same view, that is what I am asking?

MR GRIFFITH: Your Honour, we say the decision in Waanyi is dealing with the issue there of a pastoral lease, and in that way it is perfectly acceptable. We submit it is not authority, your Honours, to say that in all circumstances one merely need fill in the form, say I have got counsel's opinion to say that I can ignore the grant of fee simple, because it has not been determined, in that way obtain acceptance and then ensure that the years may expire for the right to negotiate when there may be a claim that is not supportable.

CALLINAN J: Did any other members of the Court express a similar view to his Honour Justice McHugh?

MR GRIFFITH: Your Honour, the judgments speak for themselves but we say, your Honour, they were concerned with the particular circumstances in Wik.

McHUGH J: On one view, the majority judgment went beyond mine, because I would have countenanced an examination of the claim, in some limited circumstances, but the majority said, "No."

KIRBY J: And in one sense the very notion of the fragility of this form of title, its uncertainty, the disputability of some of the background facts, and the very notion of negotiate involves the concept of uncertainty of the rights.

MR GRIFFITH: Your Honours, all that is accepted. Waanyi happened very quickly, your Honours. The parties were there to argue the leasehold issue, with reservation. The Court took the point, and gave judgment on the spot, with reasons to follow later. Your Honours, what we submit is that Waanyi cannot be regarded, we would submit, as authority which says, "In the plain case, on the assumption that fee simple grant does extinguish all native title, whether identified or not, it must be that the same result happens." My fall-back position on that is, if Waanyi is regarded by this Court as so deciding, it should be modified to the extent to accommodate the plain case which we submit exists here.

GAUDRON J: This case and Waanyi are some distance apart in that this case originates out of an application to the Federal Court for injunctive relief in the exercise of equitable jurisdiction, whereas the other arose out of an application, a registrar's decision.

MR GRIFFITH: Indeed, your Honour, and, of course, here when one engages equitable jurisdiction we submit it must, as a matter of logic and to ensure that there is not abuse of process of the Court, be appropriate for the judge to consider whether or not there is a basis for that which is asserted as the principal legal entitlement to give rise to the case for an injunction to issue as a matter of discretion. So that, your Honours, we would say that Waanyi can be regarded as quite consistent with the course taken here by the trial judge to determine the issue, and having determined it to hold that, in those circumstances, not only should no injunction issue but the action itself should be dismissed.

GUMMOW J: There was no prima facie case within the meaning of all these sections discussed in Waanyi at pages 615 to 616.

MR GRIFFITH: It was an equitable claim in the Federal Court brought by the claimants. We say, your Honours, that they having had second thoughts about it, it is not permissible for them to walk away from the consequences here, where one has identified an issue which we submit is right for determination by this Court and right in a manner which would not emerge in the other two identified cases within this millennium. Some of us might have grey hair by the time it gets here; we might not have any at all, but it could be some time away. Your Honours, there is the issue which obviously is of daily concern, even in the litigations in the Federal Court, without trespassing what is concerned outside the ambit of the tribunal and the Court process.

KIRBY J: You are arguing convenience again.

MR GRIFFITH: Yes, your Honour, I will not get back to it. Your Honour, it is a discretion in this Court, we accept that, and what I am seeking to do is to flag those matters which we say point to a decision being made on this issue. Your Honours, at paragraphs 24 and 26 of our written submissions we refer to the same issues, that this is not an inquiry of fact which Justice McHugh, I think, identified when your Honour referred to Justice Kirby's judgment in Wik at page 237. We submit that is the case here. There is no inquiry of fact, and we say, therefore, this is really the purest mechanism for this fee simple issue to come before the Court for consideration.

Your Honour, at paragraph 9 of our submissions we make the point to your Honours - and we say that it is a valid one - that the substance of the claimant's case is that native title would be indefeasible except by most direct and discriminatory statutory provision or by unequivocal abandonment. In the ordinary course, one would expect that it be very rare indeed one would have either of those occasions; it may be postulated but rarely achievable. So the reality would be that as against even a fee simple estate native title rights would almost never be extinguished but for to be considered parcel by parcel or by factual inquiry, so far as the co-extensive claims are made, and by reference to any particular circumstance which may arise in the event that the Crown emerges either as the owner of the registered estate or otherwise assumes a reversion as Crown land.

In our submission, to adopt that approach one is to turn one's back on that which the Court has enunciated through the lines of the decisions commencing with Wik. If the claimants are correct that there is mere suspension, we would submit it should follow that they could bring a claim for determination that they do have such rights, even if they are suspended in their enjoyment. One is reminded of the ordinary common law estates that we studied when we studied the law of real property, of an estate vested in interest rather than vested in possession. If it is merely suspension that, in one way, is equivalent to a claim that there is a claim vested in interest but not in possession, as one studied when we studied remainders of real property.

Similarly, one would suppose that an owner of estate in fee simple could bring proceedings to claim declarations, whether his property was affected by any claims, either vested in possession, as concurrent of the sort identified in the reply that Mr Castan filed, or suspended until the possible determination of the estate or transfer to the Crown. In our submission, your Honours, this is not the substance of native title. Further, my learned friend Mr Castan's submission that you look only at the legal and factual position at the time of inquiry, would mean there would never be a finality with respect to issues of native title. One could keep coming back again and saying, "Well, let's look at the circumstances, both legal and factual, to see whether or not at this time of inquiry the claim may be renewed or expressed or represented in a different way." Again, our submission is this is inconsistent with how the Court has expounded the principles of native title.

At paragraph 13 on page 6 of our submissions we contend that the result of extinguishment on a grant of an estate of fee simple applies also in the cases where there is a transfer to the benefit of native title claimants or Aboriginal interests. To that extent, we submit that the decision in Pareroultja, that we refer to of the Full Federal Court in footnote 20 on page 6 of our submissions, is incorrect, with respect, on this point. We say that the fact that there is a grant in fee simple which inures for Aboriginal purposes and for the benefit of persons of an Aboriginal race, including those who may claim a native title interest, does not mean that such native title interests as may previously exist before a transfer of fee simple continues to exist. We say the legal and equitable rights are those which are associated with the grant of the new title, or pursuant to statute or pursuant to transfer of fee simple. In paragraphs 14 and 15 we refer to decisions of the Privy Council, the Court of Appeal and the High Court of New Zealand, which we say supports this submission.

At paragraphs 16 and 18 we refer to the provisions of the Torrens legislation, in the case of our submission by reference to the Victorian Act. Your Honours, when one looks at section 42(1) of that Act, which we have extracted, and one sees the exceptions in the footnote on page 9, which apply in respect of the estates which may continue to exist on registration, it is our submission that it must follow that by operation of the Transfer of Land Act provisions, the Torrens Act provisions, that native title interests must be brought to an end upon the registration of the estate in fee simple.

At paragraphs 27 to 31, pages 13 to 16, we make an argument on non-revival after extinguishment, and we say that the points we make at paragraphs 28 to 30 are both unanswerable and are supported by authority of this Court to the extent of statements by various of these judges as we refer to. Your Honours, the last matter we refer to, in paragraph 33 of our submissions, are that Justice Brennan, with whom your Honour Justice McHugh agreed, in Mabo, did not regard the fact of forfeiture of the sardine factory lease as affecting the view there taken as to the extinguishment of native title on the grant of the lease. We would submit that the case of freehold title should have no lesser effect than was taken by their Honours with respect to that issue.

Your Honours, apart from those matters which I have referred to, we do, if we could adopt the words perhaps used more in gaming than before a court, your Honour, stand on our submissions as, in our submission, making in their entirety a case to support the view which we have put, as a matter of law, there is no factual issue, there must be determination of any native title interests on the grant of a title of fee simple, if the Court pleases.

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: If your Honour pleases. Your Honours, may I make some short points in reply in relation to both the preliminary point and the substantive issue. In relation to the preliminary point, the Solicitor for the Northern Territory put the proposition that Subdivision B was simply not engaged in this case. One basis for that submission may be that it is necessary to demonstrate the existence of native title to engage it. To that, we will return briefly in a moment. The Solicitor's concession, however, that it would be necessary to follow the prescribed procedures before granting a mining lease, indicates that the other basis for the submission, if we understand him correctly, is that there is no compulsory acquisition in this case under a compulsory acquisition Act.

In our submission, there is an implied prohibition in the Act against acquiring land otherwise than under a compulsory acquisition Act. A compulsory acquisition Act is not merely an Act which treats native title interests in the same way as ordinary title. The definition of that phrase, which is contained in section 253 at page 123 of the version your Honours have, requires that the Act must contain a provision equivalent to section 79 of the Native Title Act with respect to compensation. That provision, in turn, imports an obligation to negotiate, where requested, with respect to compensation other than money. What we say, in this case, is that the Government of the Territory cannot, consistently with the purpose evidenced by the Commonwealth Act, avoid its operation in the manner adopted here.

HAYNE J: What does that mean, Mr Basten? I do not understand the submission. What are you telling us?

MR BASTEN: What I am suggesting, your Honour, is that the terms of Subdivision B are attracted in circumstances where the effect of the act which is undertaken by the State or Territory Government is a compulsory acquisition which must be carried out in a certain way for the purposes of this Act.

HAYNE J: What is the compulsory acquisition that you say has occurred in this case?

MR BASTEN: The compulsory acquisition - this is on the assumption that there is native title, your Honour. I was dealing specifically on that assumption with this proposition. It may be that your Honour is asking me to go to the second element of the limb, which is whether that assumption is correct or not. What we sought to say in relation to that was that the argument, based on the need to establish native title, as opposed merely to a registered claim, was partly put by us in our opening submissions but may be elaborated with regard to two further provisions in the Act.

May we take your Honours to the provisions in relation to non-claimant applications, which are provided for in section 61, which go through the same procedures - and the relevant part of section 61 is on page 38 in the third column, paragraph (2). The non-claimant applicant is someone who is other than a claimant for native title. That application goes through the same procedure and, if unopposed, an act can validly take place regardless of the existence or otherwise of native title. That follows from section 24 of the Act.

However, once that application has been dealt with and notice has been given by the Registrar under section 66, it will cease to be effective to remove what the Court in the Native Title Act Case described as the sterilising effect of the Act if a claimant application is made within the particular period prescribed in section 67 and is accepted by the Registrar. In other words, it is the acceptance of a claim which deprives the Government party, or any other person, of the power to act with respect to the land in a particular way, on the basis that no native title does exist.

This is discussed in the Native Title Act Case in the majority judgment at the middle of page 458 and, as is noted there by the Court succinctly - I will not take your Honours to the provisions - there are means by which a matter can be dealt with if it is subsequently determined that native title did, contrary to the unopposed non-claimant application, exist in relation to that land.

KIRBY J: Can I just ask just to get it clear. Do you say that the only basis on which you get into Subdivision B is by 26(2)(d), which is the compulsory acquisition, and that the native title rights are those which you are asserting, that they do not, as it were, at that stage have to be established as existing - - -

MR BASTEN: Yes.

KIRBY J: But that this was a compulsory acquisition under a compulsory acquisition act? Now, it was never purportedly under such an act?

MR BASTEN: It was never purportedly under such an act but it could not have been otherwise, we say. There is an implied prohibition on an action of this kind otherwise than under a compulsory acquisition act and - - -

GUMMOW J: What is the compulsory acquisition here, small "c" and a small "a"?

MR BASTEN: Small "c" and a small "a". It is the effect of a grant on the hypothesis that there is another interest in the land, that interest thereby being destroyed by the grant.

HAYNE J: Which grant do you refer to? What act of the Territory, actual or threatened, constitutes the compulsory acquisition that engages 26(2)(d)?

MR BASTEN: The act is the lease to the second respondent in two cases which occurred in May and August of 1997 referred to in the appeal book at pages 36 to 41 and in the chronology, and the threat of continuing grants, both under the terms of those leases, which provide for the second respondent to obtain a fee simple in the land, and on the basis that the Territory declined to give an undertaking not to continue to alienate the land referred to in the correspondence at page 47 to 58 of the appeal book. It was those future activities as threatened that we sought to injuct.

GUMMOW J: So you are seeking an injunction in aid of this implied negative?

MR BASTEN: Yes, your Honour.

KIRBY J: Forgive me, but just on the face of it (d) appears, by the use of the words "a Compulsory Acquisition Act", capital letters, to be positing a formal procedure.

MR BASTEN: Yes.

KIRBY J: Now, that is not a procedure. I agree or I understand that you say that you cannot walk out of the Act simply by the way in which you do it, but it does not seem to be engaged here, where there was no apparent involvement of a compulsory acquisition procedure.

MR BASTEN: We say, your Honour, that the prohibition imposed by this subdivision is both procedural in the sense that the requirements of section 29 must be complied with and in the sense that the requirements of subsection (2)(d) themselves impose constraints on the manner in which the government can deal with the land, so that there are two ways, as it were, in which this subdivision imposes constraints in order to allow a government to overcome the sterilising effect as described by this Court in relation to the acts covered and the acts covered, of course, are limited to mining leases and acts which would constitute acquisition for the purpose of conferring rights on third parties. It is the latter category of act to which this particular matter is directed, not the former.

GUMMOW J: Now, your implied negative that you get out of (2)(d) still postulates a native title right, does it not?

MR BASTEN: No, there is a separate argument, your Honour, that - - -

GUMMOW J: Well, it is a remarkable implication then, at that rate.

MR BASTEN: Well, the implication though, your Honour, is derived from the whole of the subdivision, whether applying to mining rights or these rights.

GUMMOW J: Well, what is the content of the implied negative prohibition which you say is enforceable through an injunction?

MR BASTEN: Your Honour, the content is that which I have just described, namely that it is a qualified prohibition dependent upon a government following the procedures and the requirements as established by the Native Title Act.

HAYNE J: That to me has no content, Mr Basten. I am sorry, you will have to expand it if it is to convey anything to me.

MR BASTEN: The content to which I was adverting, your Honour, was both the procedure provided for under section 29 for the giving of notice, in particular to native title parties, including a registered native title claimant; the requirement, no doubt to be implied rather than expressed, that in the case of a compulsory acquisition it must take place under a form of legislation which contains certain obligations on government and that it must take place, not for the purposes of giving the government an interest or the interest in land, but of conveying the land to a third party.

KIRBY J: I have two difficulties with that theory. The first is that if it were true, one would have expected that Parliament would have just said, "And anything that diminishes the native title right", but instead it did not. It provided categories. Secondly, if your theory of paragraph (d) is right, then you did not need (a), (b) and (c) because all of those would be diminishing the native title rights and interests and to that extent be compulsory acquisitions.

MR BASTEN: No, your Honour, because the creation of a right to mine would not normally be seen as falling into the same category as an acquisition, although it may - - -

KIRBY J: It is an assertion of the Crown's rights over the land.

MR BASTEN: What we submit this provision deals with is that each of the two circumstances in which the Crown can, consistently with the existence of ordinary title, grant interests which impair those of the ordinary titleholder in land, so that on the principle espoused by the Act that the Crown should only act in a non-discriminatory manner, the Act then provides for those two specific categories of cases to be dealt with in a particular way and does so on the basis that there may or may not be a determination of native title in existence. That is the purpose that we derive from the structure and content of the Act.

GUMMOW J: Now, am I right in thinking that this implied negative which founded your application for injunctive relief, which I assume you re-embrace now, was - - -

MR BASTEN: I have re-embraced, your Honour.

GUMMOW J: - - - you have re-embraced, yes - was a right constituted sufficiently by the assertion of native title plus acceptance of the application irregardless of what the ultimate likely outcome would be?

MR BASTEN: Yes, your Honour, and, just to complete what I was saying before your Honour's question, might I add to the sections to which attention should be directed in determining the purpose of the Act, section 11, which provides, as this Court has said, that the Act is a Code in relation to the extinguishment of native title. In relation to the question your Honour asked me, might I say this: if the tribunal erred in placing the claim on the register, then that would give rise to certain other questions.

We say that the Act vests as the donee of the power to give rise to the status in someone of being a registered native title claimant the Registrar of Native Title Claims. The donee of that power must, of course, act in accordance with the Act. If there were to be a challenge to whether she had acted properly in this case, there would need to be an answer to at least one question that your Honour Justice Gummow asked earlier, namely, is there a power to provide further information. There are further questions. Is there an obligation of continuing disclosure on claimants? Can the register be amended? Is it necessary or appropriate for the registrar to only register part of a claim? None of these questions are clear from the terminology of the Act. Our point in relation to them is simply this, that the procedure by which this matter was determined did not address any of those claims and, if they were to be addressed - - -

GUMMOW J: Well, it proceeded on the basis that the right for which protection was sought was a right which required more than assertion.

MR BASTEN: No, it required more than a registered claim. It required - - -

GUMMOW J: Yes. Assertion through a claim.

MR BASTEN: Certainly, your Honour, yes, but that was the basis upon which we put it, so that these further issues, which may themselves be important issues, are simply not addressed below.

Just to complete our submission in relation to the preliminary point, I should perhaps summarise the position that we say should have been adopted in the Federal Court as being an obligation to inquire whether in the terminology of injunctive relief there was at least an arguable case as to the substantive basis of the relief claimed. That in this case was to be satisfied by establishing the existence, as we put the claim, of an accepted application for determination of native title.

GUMMOW J: Well, that is what we have just agreed was your position.

MR BASTEN: That is so, and in so far as the balance of convenience was properly a matter for the court to consider, as no doubt it was, the assessment which the court was to make was the assessment of the proposed acts, on the one hand, on those who sought to do them or received the benefit of them and, on the other, on the native title rights as entered on the register by the registrar, those being the claims which might or might not be affected if the acts went ahead. That was not the balance of convenience test which was applied in the present case. Indeed, it only really became relevant as a subsidiary issue if his Honour were wrong on the first point.

KIRBY J: Now, as Justice Gaudron pointed out yesterday, you have not moved this Court to revoke the removal.

MR BASTEN: No, your Honour.

KIRBY J: You have, on the contrary, by your motion sought to enlarge the questions that are dealt with here.

MR BASTEN: Yes.

KIRBY J: What are the orders that you would be seeking in the event that you were successful?

MR BASTEN: Well, the orders would remain the same, your Honour, because we put these submissions, at least in part, on the basis that they are another ground upon which we say that his Honour erred in making the determination. We say that his Honour erred both in making the determination he made in this case and in considering that issue in the first place. So we say his Honour should not have made the determination sought, otherwise we seek to reach the same conclusion on the basis of further removal of the other ground so that this Court may properly, if necessary, have them before it.

KIRBY J: But it was you who invoked the jurisdiction of the Federal Court.

MR BASTEN: Yes.

KIRBY J: Is the relief that you are seeking that the matter go back for consideration of the relief you sought?

MR BASTEN: Well, depending on how this Court deals with the matter, we would submit this Court would be in as good a position, I think, as the Federal Court to grant the relief sought in the notice of appeal, but that may depend upon how this Court deals with the matter.

KIRBY J: We have not really gone through the process that would normally be gone through to consider a grant of an injunction.

MR BASTEN: That is so, yes. The other aspect to that, I suppose, your Honours, is a concern which is raised in the written submissions, namely that if this Court were against us on both the arguments we seek to put, we would wish to avoid the result of an approved determination of native title flowing from section 13(7) of the Act which could only become available as a result of the removal to this Court and, if it were necessary in order to avoid that as being an inappropriate result, given the way in which the case has come up, we would ask that the matter be referred to the Full Federal Court for it to make orders in accordance with the judgment of this Court. We are not sure that that conclusion would necessarily follow, but we are concerned that it may be a result which would be obtained, as it were, only by the judgment of this Court in its appellate jurisdiction.

Your Honours, might I turn to the substantive issues and we have one or two points to make in response to those which were taken against us. Firstly, your Honour the Chief Justice asked in relation to the question of extinguishment how that phraseology had originated in the case law. The Solicitor for New South Wales gave your Honour an answer to that which I adopt and merely qualify in one or two respects. First, he referred to Johnson v McIntosh in the United States Supreme Court, the judgment of Chief Justice Marshal.

The context in which his Honour made the reference to extinguishment at the foot of page 586 in Wheatons Report, of which your Honours have a copy, is a context which is identified from page 573 to 4. At the end of the first paragraph at 574 point 3 his Honour noted that the grants which the Crown could undoubtedly make in the United States over land which was the subject of Indian occupation were:

understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

So although it could be extinguished, his Honour was obviously making the comments as to extinguishment in a context which envisaged legislation, we would say, or surrender or conquest rather than the mere grant of a potentially inconsistent title.

Your Honours, there are two New Zealand cases to which the Solicitor referred, that of Reg v Symonds, which is, I think, in the materials we handed up, the relevant passage is cited by Justice Brennan in Mabo (No 2) 175 CLR 1 at 92 point 3 and there is a subsequent Privy Council in Nireaha Tamaki v Baker (1900) NZPCC 371 and the relevant passage comes at page 384 point 6 where the Privy Council, I think in the speech of Lord Halsbury, said:

And while affirming "the Queen's exclusive right to extinguish it" -

this is referring to the earlier case of Symonds -

secured by the right of pre-emption reserved to the Crown he holds that it cannot be extinguished otherwise than in strict compliance with the provisions of the statutes.

So, again, the reference appears to be to statutory extinction, and when one comes to the law in this country the terminology derives, at least in part, from the judgment of members of this Court in Mabo v Queensland (1988) 166 CLR 186 and, in particular, at page 211 in the first full paragraph, Justices Brennan, Toohey and Gaudron in their joint judgment note:

The first question is whether the 1985 Act, on its true construction, does extinguish the traditional legal rights of the Miriam people -

again, the context was one of statutory extinguishment and, your Honour, beyond that can I merely say that there is some consideration of the history of that term in the judgment of Justice Toohey in Wik 187 CLR 1 in a passage beginning at page 122 and going through to page 126 where his Honour concludes at about point 7:

To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished.

So I think his Honour felt that the terminology adopted in the previous judgments was not necessarily conclusive of the issues before that Court and we would say either before this Court. The other point we would seek to make in that regard is that the Act itself makes no provision in relation to extinguishing effect or otherwise of grants such as the present. It does not even use the term extinguishment in this context. Section 223(1) requires that the Court determine whether "the rights and interests are" - in the present tense - "recognised" in paragraph (c) and 225 of the Act in paragraph (a), again, in the present tense asks:

whether native title exists in relation to a particular area of land -

terminology which is at least consistent with either of the views that have been put to this Court in the course of argument.

Your Honours, the other substantive issue which we seek to deal with is the reference by the learned Solicitor for the Northern Territory to the Land Acquisition Act, a matter which was also adverted to in the submissions for the Commonwealth and New South Wales. The acquisition which took place under that Act, which was not considered by his Honour below, is an acquisition under section 16 of the Commonwealth legislation which was applicable, if not in its own terms - and we would say it appears in its own terms to have had application to land anywhere in the country - it was applicable by way of the Commonwealth Acts to which the Solicitor for New South Wales referred.

The result of the acquisition, however, of land in the Territory is to be identified by reference to section 8 of the ordinance, which is at tab 27 of the volume II of the Northern Territory documents.

The land acquired shall, on acquisition, become Crown land and shall be deemed to be reserved for the public purpose for which it was acquired.

And we say that it can then be considered consistently with the principles adopted by Justice Brennan in Mabo 175 CLR 1 at 68 point 5 to the effect that a reservation of Crown land need not be considered inconsistent with the continued existence of native title. That, of course, is on the assumption that the grant itself had not extinguished all native title rights.

Leaving aside the effect of the grant, we further say that an acquisition dependent on the Commonwealth Lands Acquisition Act should not be read as extinguishing native title because it would do so without the provision of just terms compensation and the Act would, to that extent, be invalid. We rely on the views expressed by your Honour Justice Gaudron and Justice Deane in Mabo [No 2] 175 CLR 111, point 8. The Acquisition Act, of course, is not based solely on section 122 of the Constitution.

We also note that the result for which we contend, at least in relation to future Acts, is that which applies under the Native Title Act and is reflected in sections 23(3) and 238 of the Native Title Act, namely, that the non-extinguishment of the principle will apply to a compulsory acquisition.

Your Honours, in conclusion, may we say that, relevantly for present purposes, the Native Title Act does not deal with the effects of the grants which need not be validated; that sections 223(1) and 225, talking as they do in the present tense, reflect rights which are now recognised and native title which now exists, but the nature of the relevant rights and interests are not, as the Commonwealth suggested at least yesterday, in land but they are rights in relation to land in the terms of section 223. Arguably that phrase is given content by the following paragraphs of that section which do not require that the rights and interests be in the land but rather they be possessed under traditional laws and those laws provide a connection between the Aboriginal people and the land.

As the materials that we advert to in our submissions in reply demonstrate, traditional interests in land may have a religious or spiritual basis, among others, and they may involve a connection which is not in all respects dependent upon access to that land. They may involve personal rights as between members of the group as to who is entitled to make decisions about the land or speak for country. If land were to be owned or occupied by traditional owners otherwise than as a result of a claim under this Act, the issue might come before the courts as to who was entitled under traditional law to consider and determine the development of that land or the protection of it.

Some of the Privy Council decisions, including Oyekan, involve simply disputes of that kind. Your Honours, in considering the desirability of achieving certainty, the Court should, with respect, be wary of prejudicing the interests of those Australians who may hold native title rights and interests of the very broad kinds which are covered by the Native Title Act in order to further that broad policy. A coherent scheme of dealing with native title rights and interests will either need to be developed by the courts as specific issues arise or they will need to be determined by the Parliament. In relation to the validation, your Honours may not have been taken to the provisions, but it is notable that the Native Title Act differentiates with respect to the consequences of different categories of freehold land. Sections 229 to 232 will produce different results where freehold grants require validation, depending on whether they are category A past acts or fall within category D, and a freehold grant which falls within the terminology of section 229(3)(d), set out at the top of page 110, will be a category D past act to which the non-extinguishment principle applies.

Now, some of those grants are grants of interests for Aboriginal people. They may be under legislation which benefits Aboriginal people or they may be under the general law applicable in a particular jurisdiction. Pzareroultja's Case, which the Commonwealth asked your Honours to reconsider, may be one of those examples. In our submission, it would be inappropriate for this Court to venture upon a reconsideration of the common law generally in relation even to freehold grants where to do so might be to make statements of principle which might affect the rights of Australian Aboriginal citizens in the future in ways which cannot be definitely contemplated at present.

Your Honours, those are the submissions.

CALLINAN J: Mr Basten, can I just ask you the same question really as I asked Mr Griffith. At page 637, the Waanyi Case, Justice McHugh referred to the possibility of an applicant "obtaining a commercially beneficial settlement of a doubtful or even non-existent claim" - it is a passage you cite in your submissions. Are you aware of any other passages where a similar expression occurs? You may want to let me know about it later, but is there any other reference of which you are aware, in that judgment or any other judgments, to the act contemplating, as it were, the possibility of a commercially beneficial settlement in respect of a non-existent claim?

MR BASTEN: Might I answer that in two ways, your Honour. One is, with no disrespect to his Honour, a qualification on what his Honour said, lest it be thought to go too far. The Act itself does not necessarily provide that moneys payable on a compulsory acquisition which is negotiated under these terms will be paid. They will be held on trust, anticipating a future determination as to the existence or otherwise of native title. So, in a sense, that is something of a qualification on what his Honour says in that regard, and that is provided for in the scheme of sections 41(3), 42(5) and 52 of the Act.

So far as the direct answer to your Honour's question goes, the terminology which is used by the majority is not the same as that adopted by his Honour, we would concede. We would say, however, that there are a number of passages in which a similar conclusion flows from the reasoning adopted by the majority judgment and, in particular, we would refer to the first full paragraph on page 617 from point 3 to the middle of the page. Your Honour, apart from - - -

GUMMOW J: These trust provisions, of course, suggest that at the end of the day, money may have to go back.

MR BASTEN: Yes, indeed. That was the point I was seeking to make. I mean, they are posited on the basis that there may or may not be native title, and careful attention - - -

GUMMOW J: That may not assist your equitable right.

MR BASTEN: Well, it may or may not assist whether the relief is sought or not, your Honour. If it is correct, however - - -

GUMMOW J: It may not assist the grant, anyway, of relief.

MR BASTEN: Yes, I took your Honour to be referring to the discretionary element.

GUMMOW J: Yes.

MR BASTEN: Well, on the other hand, it might, your Honour, because it might be said that there would be no ultimate detriment to the payer of the money if native title were ultimately not established, so perhaps it could be argued both ways.

CALLINAN J: Mr Basten, I have just read that paragraph, the first complete paragraph on page 617. It seems to suggest that you might have to buy an amicable relationship with your neighbours even if they have not got a valid claim, if your proposition is correct. But that is the same sentiment, in effect, that his Honour Justice McHugh was expressing.

MR BASTEN: I do not read them as quite saying that, your Honour - - -

CALLINAN J: Well, if the person is interested in the determination and those issues are negotiated and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. It may not even be neighbours, of course. The non-existent claim might be made by somebody who is not going to be a neighbour.

MR BASTEN: Yes.

KIRBY J: Of course, if there is a statutory obligation to negotiate, subject always to the question of the statutory obligation to repay, it would not be the first negotiation where people go into it and have to pay money on something which they think is unjustified and which may, in the processes of this Act, ultimately turned out to be unjustified. That is what negotiation involves.

MR BASTEN: Indeed they may recover the money under section 52 if their fears are made out as a result of the ultimate determination of the application.

KIRBY J: Elsewhere in this building and in courts throughout this land, people at this moment are negotiating and they may, or may not have, good claims. I do not always know.

MR BASTEN: Yes.

CALLINAN J: Would the person obstructed have any realistic prospect of obtaining or recovering the opportunity cost of the delays caused by the obstruction?

MR BASTEN: Your Honour, I suppose the reason I took your Honour to that passage was that it is a summary and perhaps only in part, of the purpose which the majority saw as underlying the structure of the Act. Of course, one can say a lot of things in a more extensive form about it. One is that, of course, there may be no payment agreed at all. The other is that if no agreement is reached, then there may be a determination by the arbitral body that the Act can be done anyway, or that it can be done on particular terms. So that, it is not, as it were, any power of veto which is being granted, it is simply the bona fide obligation principle which is found elsewhere in the law.

The only other thing I would say, your Honour, is that when one considers the structure and the purpose of the Act, whether or not one can predict a positive outcome from the agreements, it is a structure which has been imposed by the Commonwealth Parliament, and I read not only that provision, your Honour, but possibly - and I may be remiss in not taking your Honour back to page 613, except obviously it cannot be read in the time available - but the statutory scheme for dealing with applications is discussed by the majority in quite a lengthy passage from 613 through to the passage to which I referred your Honour, and that is in a way, conclusive.

GLEESON CJ: Yes, thank you, Mr Basten.

MR BASTEN: Thank you, your Honours.

GLEESON CJ: The Court will reserve its decision.

AT 12.17 THE MATTER WAS ADJOURNED