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Ben Ward & Ors v Crosswalk Pty Ltd & Ors P67/2000 [2001] HCATrans 106 (16 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Second Respondents

DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondent

Office of the Registry

Perth No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

Second Respondents

Office of the Registry

Perth No P63 of 2000

B e t w e e n -

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Fourth Respondents

ON BEHALF OF THE BALANGARRA PEOPLES

Fifth Respondents

Office of the Registry

Perth No P67 of 2000

B e t w e e n -

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

Second Respondents

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J.A. CARATI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB'S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNURRA WATER-SKI CLUB

Seventh Respondents

ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE

Eighth Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 MARCH 2001, AT 10.17 AM

(Continued from 15/3/01)

GLEESON CJ: Mr Barker, it was my mistake not to notice last night that this schedule was worked out on the basis that we were starting at 10 today; the necessary adjustments will be made.

MR BARKER: If it please the Court.

GLEESON CJ: Yes, Mr Barker.

MR BARKER: Your Honour, I understand Mr Ritter, for the Goldfields Land Council, as an intervener, wishes to make an application before I proceed.

GLEESON CJ: Yes, Mr Ritter.

MR RITTER: May it please the Court. I have provided to the Court another document, which I would seek leave as an intervener, to submit as a supplementary submission. It deals with two points that arose in Mr Sher's oral submissions that he did not have the opportunity to address, dealing with the Racial Discrimination Act 1933 matter and the explanatory memorandum to section 44H.

GLEESON CJ: Yes, you have that leave.

MR RITTER: Your Honour, I am obliged. I am also obliged to instruct the Court, or advise the Court, that Mr Fraser has indicated he would like seven days to put in a brief response to this submission.

GLEESON CJ: Thank you. Now, your client are Goldfields - yes, thank you, Mr Ritter. Yes, Mr Barker.

MR BARKER: Your Honours, I hand up to members of the Court a bundle of documents. I will deal with the first in the bundle briefly if I may by reason of the other matters I wish to get to orally this morning. The first is a note responding to Justice Hayne's request yesterday for a short statement of our test for extinguishment in the Ord Project Area. I would simply add this in the response that I provided to your Honour the Chief Justice in relation to the school example yesterday. That appears at transcript page 687. What we say in relation to the school example is it is a question of fact and degree in any case what the extent of the actual use is.

GLEESON CJ: I understand that, but you are looking at the facts for what purpose? What is the test you are applying when you observe the facts? Is it different, for example, from the test in the provision in the Native Title Act as amended in 1998? I think it is 235, is it not?

MR BARKER: Your Honour, we make further submissions really in response to what her Honour Justice Gaudron said yesterday, and that is item 2 in our bundle. We say in essence that the result is no different.

GAUDRON J: That is, in a sense, the test that the majority of the Full Court applied. Do you quibble only with their application of it?

MR BARKER: We say that they did not apply that test because it requires one to have regard to actual use. They applied a test of notional use. We say a test of notional use may be appropriate in the case of land use planning or rating where the rights of a property owner, vis-à-vis, the government are at stake, and it is appropriate to apply a test as the Court long has done to respect private rights. We say that type of notional use test is inapposite in relation to native title, the actual use test is apposite, and we cite it as you will see it, note 1, what his Honour Chief Justice Brennan said in Wik at page 86 to that effect.

Your Honours, if I can note in relation to a couple other preliminary matters, I said your Honour the Chief Justice late yesterday that I thought Reserve 43196 was at a particular place on the map, and the references to that are transcripts 684 and 685. I can confirm my understanding. The particular reserve is shown on enlargement 4 at tab A of the State's revised submissions.

Your Honour also asked about the canoeing licences. We have not finally confirmed this, your Honour, but we believe that the by-laws under the rights in Water and Irrigation Act, regulations 4A and 4B that appear in volume 8 of the West Australian bundle of legislation at page 2237 and have boating controls in them are the relevant regulations.

Your Honour Justice Gummow asked concerning the usufructuary use of Lake Argyle his Honour the trial judge referred to, and I just refer your Honour to our revised submissions of 9 February, paragraphs 374 and 375 where we refer to relevant evidence, which we included in the book of materials.

But, your Honours, there has been some discussion, and I think your Honour the Chief Justice has raised this on some occasions concerning the extent of flooding in the Lake Argyle vicinity. Can I take your Honours again to volume 4 of the book of materials, firstly, to the map at page 823 to which you have been taken before, and then I will take you in a moment to Mr Wilkin's written report at page 794 where what he says is relevant to the map. The blue line that is still within the yellow area at page 823, as we understand what Mr Wilkin says, and I do not think this is disputed, is the 1-in-15-year flood estimation.

The fence line that appears with the broken red line at the edge of the brown and yellow area is drawn to be effectively on the perimeter of that 1-in-15-year flood area.

GLEESON CJ: According to the legend on the left-hand side of the page, the maximum flood level is a red line.

MR BARKER: That is the maximum flood level, your Honour. If I can then take you, having noted that, back to page - - -

GLEESON CJ: Now, just before you go away from 823, is the Keep River National Park on the area to the east into which that red - indeed the blue line extends?

MR BARKER: Your Honour, the Keep River Area is, I believe, to the east of where Reserve 47210 appears near the dotted line, being the Victoria Highway. Does your Honour see that, about three or four inches from the top of the right-hand side of that map?

GLEESON CJ: Yes.

MR BARKER: That road continues across for a very short distance into the Northern Territory and, if you turn left and go north, you are in the Keep River National Park Area. I do not believe there is any question of flooding that at least we have heard about in the evidence that is relevant. Your Honour, if I take you then to 794, the best description one then has of the extent of flooding, we submit, rather than the various estimates provided from the Bar table, is in the third paragraph under the heading "b) Reserve No. 31165", where it is pointed out that:

The water can rise under extreme floods as much as 78 feet (24 metres) above spillway crest, (297 feet level) inundating some hundreds of additional square kilometres, but the higher levels are only reached very infrequently and for short periods.

It is pointed out further down that the:

level of 330 feet would only be reached about one year in fifteen and the water would not remain above that level for more than one month.

Then there is some discussion about the placement of the fence.

Your Honours, there has been further discussion concerning Lake Kununurra, as it has been called. I do not wish to delay long in relation to this matter; it was the subject of Mr McLeod's submissions yesterday. As you will see from looking at the enlargements that are attached to Mr McLeod's submissions - and I do not take the Court to them now - Lake Kununurra, in some respects, is a misnomer. It is a swollen area of the Ord River in that vicinity. It is in no way - and no one has suggested it is - to be equated with Lake Argyle, but there is much evidence of connection, evidence notwithstanding the submissions made by Mr McLeod, and I refer the Court to our revised submissions at paragraph 376.

A further matter that we seek to deal with, your Honours, is the references to the crisscrossing of channels and drains that has been referred to in the course of exchanges between the Bar table and the Bench. The majority at paragraph [410], around line 30, make reference to that, but I think it is clear that most of those channels are on the land not claimed. His Honour Justice Lee, at various places, makes reference to some drainage channels and the like, for example, at ALR 606, on "Reserve 35289", but we seek to clarify that. The main point was that there were some pipes that pumped water from the river, across some Crown reserves, to farms at various places.

We also make the point that I think is now clear to the Court, as a result of your Honour the Chief Justice's questions, that the land within the Ord Project Area, but being the finger near the Cave Springs area that your Honour the Chief Justice noted yesterday, and is referred to in the map at volume 3 of the book of materials, page 627, is not used, and no one has suggested it has. It has been set aside for, it seems, the possible future use of farming, but that has not happened.

Your Honours, the second matter that we wish to touch on this morning again, briefly, because we have dealt with a number of select issues in our further written submissions that are included as annexure 5 to the bundle this morning, is the question of pastoral leases in Western Australia. To this end, if I can take your Honours to the decision of the majority below at paragraph [307], there was discussion yesterday afternoon and during the day, concerning the way that the reservation or exception, in section 106(2) of the Western Australian Land Act , might be construed.

It is clear, in our submission, that the majority below adopted a similar approach to that taken by the trial judge, namely, that you could read section 106(2) consistently with the continuation of traditional rights. So those paragraphs I have drawn attention to, particularly [307], the notion that it is clear on the evidence in this case, and found by Justice Lee, that subgroups or estate group members might exercise rights of control of entry to their areas, was referred to by the majority in this way, that it would be expected that other Aboriginal people whose country that was not that would comply and could comply, consistently with the continued rights of the traditional owners to that area. We submit that that is an appropriate way of analysing the matter.

The problem, of course, arose so far as the appellants are concerned, when their Honours then proceeded to find that immediately upon the fencing of a pastoral lease in Western Australia, native title was totally extinguished. That finding, as your Honours will appreciate, is ultimately to be found at paragraph [328] of their Honours' judgment. The terms of the statutory provision, just to remind your Honours, which is set out at paragraph [300] of their Honours' judgment, is that:

The aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner.

It is focused on the seeking of sustenance and no other matter. Where there are unenclosed and unimproved areas, that right may be enjoyed. The plain implication is that where the circumstances that give rise to that right do not exist, then it cannot be exercised. The result from that drawn by the majority is at [328]. Their Honours go on to say that:

In our opinion the effect of the reservations is that once a pastoral lessee in exercise of the authority contained in a pastoral lease encloses or improves parts of the pastoral lease, the lessee becomes entitled to the use and possession of the surface of that part of the land to the exclusion of the rights of Aboriginal people to enter to seek their sustenance in their accustomed manner. The exclusion of the rights of Aboriginal people in those areas as a matter of law effectively prevents the enjoyment of any rights and interests in respect of those parts of the land just as effectively as a grant in fee simple because, in those areas, the pastoral lessee has a right of possession exclusive of the interests of the Aboriginal people.

GAUDRON J: There seems to be a difficulty with their Honours' use of "encloses or improves". The statutory provision is "unenclosed and unimproved", which I would have thought in its ordinary meaning signified land on which there were improvements and around which there was a fence in any event.

MR BARKER: Yes. We have raised fencing on its own as a separate ground of appeal. We have not addressed it but I, with respect, commend my learned friend Mr Basten's submissions on that particular topic to the Court. But the point that I wish to emphasise this morning is this, that the reservation in section 106(2) is in respect of obtaining sustenance and yet it is converted by the majority below into a complete denial of all native title rights and interests. For example, and one does not ask the question rhetorically, but why would it be that a right to have access to an enclosed area, however that is to be defined, in respect of the conduct of ceremonies would not be still possible? Why would it not be the case that access to engage in the protection of sites still not be possible? Why would it not be possible to enter for the purpose of obtaining a resource such as ochre? None of those matters involve - - -

GLEESON CJ: They may be right or they may be wrong, but their reasoning earlier was, was it not, that the reservation was the total expression of the remaining Aboriginal rights? I realise you challenge that.

MR BARKER: Yes, we do challenge that.

GLEESON CJ: If that is correct, in other words if the pastoral lessee has exclusive possession subject to the reservation, then once the reservation ceases to have effect, the consequence they say would flow, but where do we see them referring to the reservation? What paragraph?

MR BARKER: The reservation itself, your Honour, is at [300] and then there is a discussion that follows concerning the proper analysis to be made.

GLEESON CJ: So, the reservation is a permission to enter upon unenclosed and unimproved parts of the land?

MR BARKER: Yes.

GLEESON CJ: So, if the part of the land is either not unenclosed or not unimproved, the permission to enter does not apply?

MR BARKER: That is right, in respect of a right of sustenance.

GLEESON CJ: Yes, in other words, if the part of the land is either enclosed or improved, then the right to enter, in respect of sustenance, does not apply?

MR BARKER: Yes. Of course, as your Honour notes, we go on to make other submissions concerning the inability to draw from such a provision, in circumstances of the pastoral lease history here, any clear and plain intention or if one wants to - - -

GLEESON CJ: Quite. I think that may be the explanation of the terms of the first sentence in paragraph [328].

MR BARKER: Well, it certainly goes to that, but we say in its own terms, their Honours convert a denial of that into a denial of access for any of the other types of purposes that I have referred to.

GLEESON CJ: Well, let us relate it not to ceremonies, but to a specific right that you claim; that is, the right to control the use of resources.

MR BARKER: Yes.

GLEESON CJ: By the way, what exactly do you mean by "resource"?

MR BARKER: Your Honour, I have noted your questions from late yesterday; may I come to those and deal with them more directly shortly.

GLEESON CJ: All right. It just occurred to me that it may have a possible relevance in relation to this particular question - - -

MR BARKER: I also mentioned in the examples I gave, and I deliberately kept it to that example, of ochre, to avoid wider implications, but it is accepted by all, certainly the court below, that the use of resources such as ochre would be an entitlement under this native title. So we use that as an appropriate example in the circumstances. Again, say it is not inconsistent with that reservation that their Honours focused on.

Your Honours, if I can turn from that matter. In our supplementary submissions in reply on select issues we have, if I might just point this out without going to them, dealt with the matter I mentioned yesterday, the criticism of Justice Lee's use of the expression "adverse dominion". We say that it has been misunderstood, quite clearly. His Honour simply used it in the same way as the court below, the majority, used the expression "operational inconsistency", and it was only ever applied where his Honour did not find extinguishment by other means, other acts, other grants; he looked then to actual use.

We have also dealt with the matter that has been raised by the State or perhaps by the Court to do with section 68 of the Transfer of Land Act 1890 Western Australia, and we have set out our written submissions. I do not seek to rehearse those this morning.

HAYNE J: Just as to that, you refer to Mr Pumphrey's work.

MR BARKER: Yes.

HAYNE J: What was the status of that work? It seems, is it, to be a report in the nature of an expert report tendered in evidence, is it?

MR BARKER: That is right, your Honour. He is an officer in the State Department of Land Administration. It is not, in that sense, an academically refereed work. It is expert advice produced in evidence in the proceedings.

If I can turn to the next matter in substance and that is the State's appeal relating to the spiritual connection issue. This is raised principally in ground 2.1 of the State's notice of appeal. Your Honours will recall that the ground is raised in this way that the Full Court erred in law in deciding that in the absence of the proof of possession, occupation, use or enjoyment of land, spiritual connection was sufficient to ground a determination in favour of the applicants, et cetera, and particular reference is made to Lacrosse Island, the east coast of Cambridge Gulf and Pelican Island. Mr Pullin, in his submissions, particularly, had focused on the Lacrosse Island.

Your Honours, the map area, I think you are now sufficiently familiar with is that at tab B of the State's revised submissions showing the claim area and those three islands can be seen. There is also a map to which I should make brief reference in volume 3 of the book of materials at page 618 and I briefly show that to the Court. That was the map used in the course of taking evidence in relation to the areas under consideration. This map, and others like it, used in the course of the proceedings by the first applicants, are created from satellite imagery. They show actual terrain and is one way of the Court coming a little closer, without actual photographs, to the claim area.

Your Honours will see the Ningbing community indicated near a figure with a circle around it, D2, towards the right-hand side in about the centre of the map. The Ningbing community is an Aboriginal out-station where persons such as Dodger Carlton, who I will come to shortly, reside. Access to the northern mudflat areas is by way of - and the Court took this route when evidence was taken - a track which is marked in a red broken line which finds its way up to near Brolga Springs near the mudflat area.

An area referred to in the evidence as Wundarri is that area between the two yellow lines to the north of Brolga Springs generally to the east and the west in that location. The Lacrosse Island is in the Cambridge Gulf and that is marked to the west, and then the other islands, Rocky or Kanggurryu Island and Pelican Island are further to the east. Your Honours will note that this map is marked in various places with numbers such as D2 and the other references and they are referred to in the evidence, including the book of - - -

GLEESON CJ: Where does this show Lake Argyle?

MR BARKER: This is the Gajerrong country, by and large, your Honour. Lake Argyle is in Miriuwung country to the south of Kununurra.

GLEESON CJ: This is to the north of - - -

MR BARKER: This is the north portion. In fact, your Honour is familiar with the Cave Springs area now and you will see in the bottom right-hand side of that map Cave Springs referred to.

GLEESON CJ: Is Kununurra in this?

MR BARKER: It is not. Kununurra, if you went from the Cave Springs and followed that finger in that south-westerly direction, you come to Kununurra, probably down near the legend drawn in the map. That is the finger of undeveloped land that I made reference to and your Honour the Chief Justice has made reference to previously. So that is the map, in particular, used in evidence and which relates to some of the factual matters that we deal with in our written submissions.

The submission we make principally about the State's ground of appeal is this, that the premise that they advance is incorrect, that is to say, that the Court merely found native title because there was a spiritual connection and nothing else. In short, your Honours, the evidence in this case - and you have been introduced to some of this, for example, by Mr Basten, in relation to the Keep River Area - is that there were subgroups of people, particularly within the Miriuwung group, throughout the claim area.

In respect of this Gajerrong area that I have referred to, his Honour pointed out in his judgment there had been much population thinning since contact with European people and the group of Gajerrong people today relate to the whole of that area that has been referred to. They are a subgroup in their own right. The evidence led in the trial was not only a spiritual connection and important sites through that area that I have pointed to in the map, but also use and enjoyment of that area. The claim area, therefore, is simply part of the larger country of these Gajerrong applicants.

It is wrong, therefore, to submit, as we say the State does, that you can take an isolated part of the area and say the only evidence in respect of that is spiritual connection and, therefore, you cannot succeed. One has to look at the evidence as a whole in relation to the country as a whole.

GLEESON CJ: What did the Full Court do about that?

MR BARKER: They accepted the approach that we put, that the trial judge took and had accepted. We say that it was not just spiritual connection that underpinned their finding in this area. Your Honour, if I can take you to the findings by the trial judge for a start, that touch on that matter. I should indicate at this point that we have dealt at some length with all of the factual grounds and contentions of the State. In our revised submissions, for example, at page 81, section AC, also because the amendments the State made to their submissions following withdrawal of other grounds affected their contention in ground 4 and our section AA is also relevant to this matter.

If I can first, though, indicate to the Court some of that relevant evidence by taking the Court to Justice Lee at page 511. Your Honours, between about lines 35 and 40 there is reference to "the maintenance of a connection" by subgroups, but at about line 40, the reference is:

The "primary" evidence of the first applicants attested to the general connection of the Miriuwung and Gajerrong community with the claim area. The northern and north-eastern part of the claim area was said to be "Gajerrong", the remainder "Miriuwung". In respect of the latter part there were areas known as -

and that is a reference to some of the subgroups in that area.

Then at page 534, your Honour, at about lines 27 to 40 there is particular reference to ancestors of the present applicants who are connected with that area and by such evidence the group of persons who relate to that part of the claim area are identified, not every one of them, but a number of them. Then at page 550 of Justice Lee's judgment, particularly at about lines 35 to 40, he finds expressly - and this finding was upheld on appeal by the court unanimously below:

I am satisfied that Gajerrong country included the land in the claim area running from the eastern side of the Gulf, along the northern coast to the State/Territory border, and the three islands off the north coast. As stated earlier, Miriuwung country merges with Gajerrong country from about Point Springs -

Those three islands, without taking you back into it - I do not think there is any contest here - are the three islands that the State have focused upon in their ground 2.1.

Your Honours, if I can take you to our written submissions then. At about page 81 we, in the first parts of it, make in essence the submissions that I have outlined to the Court this morning, that we are dealing with one country, Gajerrong country, and that it is not necessary for applicants to gain the native title that has been achieved here, to put their foot on every part of that territory. That is a proposition generally accepted by the State, and we say that when one does understand the evidence appropriately and considers the nature of the evidence, that those islands, whether or not they have been the subject of recent use, are part of the traditional territory, are the subject of Dreamings and the connection with the whole of that territory has been sufficiently made out, tested in appeal below and the finding should not be disturbed.

We have set out at paragraph 367 - and I do not take the Court to it now, but just identify that evidence - much of the evidence concerning the historic and other use of the area today. At paragraph 369, there is a list of various Dreaming sites in that Gajerrong country that were identified, particularly by Dodger Carlton in his evidence, and all of that is provided. There was also significant restricted evidence given in a session which is the subject of an order that it can only be read by men and those present. We do not seek to take the Court to that, but just to highlight that there was such evidence in relation to a number of the parts of the Gajerrong country.

Your Honours, we then at paragraph 381 of our submissions go to the more general question. We say that the propositions put by the State in their submissions, that, for example, and I quote:

If native title holders cease occupying their traditional country and shift to live in towns or cities and do not return to country -

then they will not be able to prove their native title, is a proposition that is so far from the factual circumstances of this case that it requires little attention by us. The reality is that many Miriuwung people, Gajerrong people live in Kununurra and they have out-stations throughout their country, some of those, for example, the Keep River, but others throughout the territory that was the subject of claim or otherwise identified as the traditional country of the applicants.

If your Honours turn briefly to the last page of our written submissions, you will see a map wherein outstations of Miriuwung and Gajerrong people throughout the claim area have been identified by way of a community - a little triangle here and there. I took you to the Ningbing community in particular, and you will see that on the map, north of Kununurra, and that is a relevant one for witnesses in the Gajerrong portion of the claim.

At paragraph 382 of these submissions, we also emphasise, at another level - a proposition, I think, that has been put elsewhere, and also developed in the submissions that Mr Basten handed up last night - that the nature of a spiritual connection is capable of being misunderstood, or characterised incorrectly as being merely a spiritual connection, as though it is at a great distance, when, in fact, it forms the basis of - on the evidence in this case - Aboriginal connection with their country. We have cited Professor Maddock, anthropologist, with some evidence - called by the State to give evidence in this case, at the bottom of page 86 and top of page 87, in paragraph 382, where he said:

"The usual Aboriginal view...(holds) that human ties to land take -

Date. That should not read "take" - should be "date" -

from The Dreaming, which is also the time when the world attained the shape it has today".

At paragraph 386, your Honours, we have set out, in relation to this particular area of Gajerrong country, some indication of the evidence going beyond spiritual connection, that was provided here. And that is set out in Appendices 1, 2, 3 and 4. Time, this morning, does not permit me to highlight that, but one will see, in relation to each of those appendices, that there is a variety of activities conducted on land, including in the Ningbing and Wundarri area, at Minini, Green Island, and such places, that are within the areas that are the subject of the State's attack, in the northern area of the claim.

In our submissions, at the sections I have referred to, we deal in detail with the other areas of the claim, to say that the claim, on the evidence, is the subject of discrete sub-areas, that the persons for those areas came to the court, gave their evidence, spoke to their country, identified what they did on it - including by reference to their spiritual connection with the land - and that, in those circumstances, on the fact of this case, the ground raised by the State is without a proper premise.

Your Honours, we also note, in passing - or not in passing - I embrace it fully - the Native Title Act, with all of its amendments, at section 39(1)(v), makes specific reference to sites of "significance", and - - -

GLEESON CJ: Incidentally, while you are on the Native Title Act, I just wanted to clear one thing up. I do not think there has been any contest about it, but section 11(1) - is it common ground that that speaks only prospectively?

MR BARKER: It is, on our part.

GLEESON CJ: Thank you.

MR BARKER: Section 39(1)(v) sets out the particular criterion for the making of determinations in respect of certain future acts by the arbitral body, in this case, the national Native Title Tribunals, as to whether or not something ought to be permitted. The particular question of an -

area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions -

is identified, and, we say, emphasises that the question of spiritual connection, on its own, is relevant to the matter of connection, and therefore the matter of rights, as well.

Your Honours, if I can turn to the third of the matters that I indicated yesterday that I would come to, and also to the questions that your Honour the Chief Justice posed for me last night, or that is when I considered them. The question we seek to deal with here is the determination that has been made, the nature of the rights that we have, and the appropriateness, therefore, of the order that Justice Lee made at first instance.

It will be appreciated by the Court - and I make these submissions again for fear that our submissions in this case have been misunderstood by other parties on earlier occasions. We say that on the evidence in this case the judge was right in making a determination that we have a right to the possession, occupation, use and enjoyment of the claim area. We say that that is a very full order and we, with respect, do not accept the Chief Justice's suggestion yesterday that it might be the case that an applicant for native title would be better off having a series of smaller, if you like, more finely grained, rights identified in their application.

We say it is understood from the type of determination we sought and obtained and, indeed, comprehended by the Native Title Act, which I will come to shortly, that if one obtains the order for possession, et cetera, that it comprehends all the matters that might be done, provided they are, in fact, done in accordance with the laws and customs of the people, as currently acknowledged and observed.

If I can come to your Honour's questions about concurrence.

HAYNE J: Just before we do. Is the asserted right to possession, et cetera, founded, as I would understand Mr Basten's submissions to say, in the proposition that under traditional law and custom the peoples concerned have the right to speak for the country?

MR BARKER: Is it limited to that, you mean?

HAYNE J: No, no. Is it founded in that? If it is not founded in that, where lies its foundation?

MR BARKER: Yes. Your Honour, if one accepts the conceptual approach that we put to the Court in our opening submissions and in our written submissions that there can be drawn a distinction so far as the general law of Australia is concerned with the external recognition of the right that an Aboriginal community has if its native title has survived. Compared with what Justice Gummow has called the idiosyncratic, what we would call the internal system, of a particular group, then the answer may be seen to be one or the other.

If you look at the internal system and the way it operates, to take up a point that Justice McHugh raised yesterday, with respect, we would accept that you will not find Aboriginal people necessarily speaking in their evidence about a right to occupy. There is no Blackstones Commentaries on the rights and interests of Aboriginal communities, save when people, perhaps, in this day and age in response to these questions are forced to articulate it that way. So what you do have is a recognition that they have a right to speak for that country. We say that is what you will find when you look at the internal law.

We say the appropriate recognition of the right is something more fundamental that underlies that right to speak the country, and that is because they have a right to possess that country. We say that that is what was recognised not by Justice Toohey on his own in Mabo [No 2], but fairly and squarely recognised by Justice Brennan. The terms of the internal system were not relevant to the determination made by him and the others in the Court. It was emphasised by him that the usufructuary rights that were referred to, which may not have been proprietary in character, nonetheless, depended wholly on the community title.

HAYNE J: If you confine attention to the internal system, is there any basis for a claimed right to possession, et cetera, other than the right to speak for country which may be found within that internal system?

MR BARKER: I think that it is, your Honour. If one goes back to the examples of rights, entitlements, obligations and interests that we say are identified in Justice Lee's judgment, then there are a number of other aspects to that which one could rely upon, for example, the right to use a particular area of land for the benefit of estate groups at ALR 529, lines 6 to 7. There is certainly the right to speak for land, which we have identified at the same pages, 8 to 9, a duty to care for country under the same page, lines 10 to 11.

The right to control the use of land is also another particular right that we say manifests a right to possess, occupy, use and control. The right of control, we say, is a manifestation of that type of property interest at the end of the day. We do not seek to so narrowly define it to say that it arises only from a right to speak for country, but that is redolent of the right to possess that we say is the external manifestation of that native title.

HAYNE J: Do not misunderstand me. The right to speak for country may on one view of matters be a very ample right, but at the moment the only internal right that seems to me to form a possible basis for the finding of a right to possess, use, occupy and enjoy is the right to speak for country. I have delayed you sufficiently but I have, I hope, perhaps identified the sort of problem that I had in mind.

MR BARKER: Yes. Your Honour, we would only say this, that again we are dealing with an Aboriginal concept. It has in a sense been popularised in anthropological writing, and that right to speak for country - - -

HAYNE J: And it is all skewed by the fact that the determination application is cast in terms that the 19th century conveyancer would have been well familiar with. Once you start the debate from that point, the whole debate gets skewed.

MR BARKER: I want to get to the Chief Justice's question if I may. I do not want to leave that point either that your Honour Justice Hayne has raised. Can I ask your Honours in relation to that point and the nature of an application under the Native Title Act and the terms of the determination made to consider what in fact the relevant terms of the Native Title Act have been in this regard from when it was first enacted, taking into account amendments that were made in 1998. Can I take your Honours to the judgment of the majority below at paragraph [172].

The general point, should there be any doubt about it now, that both Justice Lee and the court below certainly purported to apply the terms of the Native Title Act and not act in some independent way by reference to the common law as if the Act had not been passed. Section 225 of the Native Title Act, as originally enacted, your Honours, provided as follows. Firstly that:

A "determination of native title" is a determination of the following:

(a) whether native title exists in relation to a particular area of land or waters -

and it takes one back to section 10, it is a recognition of something that exists under an indigenous system, in our submission. We do not, in some respects, disagree with much of what was said by the Solicitor for the Commonwealth yesterday, about the relevance of the common law. (b) then provides:

if it exists:

(i) who holds it; and

(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the - - -

GLEESON CJ: Excuse me, what are you reading from?

MR BARKER: I am reading, your Honour, from the original terms of the Native Title Act section 225 and - - -

GLEESON CJ: That is different from the print I have.

MR BARKER: That is correct, your Honour; there has been an amendment to that provision. The point I seek to make is this, and it is recognised at paragraph [189] of their Honours judgment; I had lost it, but I found it:

Section 225 of the old Act was less demanding of detail, but nevertheless required a determination of whether native title existed -

et cetera -

and if so, who held it, whether the native title rights and interests conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others - - -

GLEESON CJ: Now when was section 225, as it appears in the form of the reprint as at 27 July 1998, which was the one Mr Basten was working from, when was that amended?

MR BARKER: The 1998 Amendments, your Honour, and that was in place when Justice Lee made his determination, and if one goes to - - -

GLEESON CJ: I see, but your application was framed under the previous statutory provision?

MR BARKER: It was, that is correct, and we have also put in, although they were not finally relevant because of the way we formulated our final submissions at trial, in the nature of the statements of issues and the contentions we made in December 1996.

GLEESON CJ: To anticipate another question I am going to ask you, did the previous 225, which I do not have in front of me, make any references to resources?

MR BARKER: I do not think it referred to resources, as such, no.

GLEESON CJ: Right, thank you.

MR BARKER: In our submission the matter is of some considerable relevance, because even with the amendment in section 225, as it now stands, to which I would like to take your Honours, and which was applied by Justice Lee - if you look at his determination that your Honour has taken me to he deals with each of the propositions in 225 as it is amended, in making his determination. The relevant differences for the point of this submission are as follows: that the lead-in words remain the same; (a) has been changed, but we say in ways that are not particularly relevantly different and certainly not for the purposes of this appeal; (b) then says that there needs to be a determination of:

(b) the nature and extent of the native title rights and interests in relation to the determination area; and -

"the nature and extent" and we say that that does not require one necessarily to list particular activities that are said to be rights; it is the nature, and we say the nature of native title rights and interests may be the right to possess, occupy, et cetera. The extent will depend upon whether it is exclusive or not. If one goes to (e) of this definition it provides, as follows:

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

KIRBY J: What are you reading there, I am sorry?

MR BARKER: The present section 225 subsection (e), your Honour.

KIRBY J: Thank you.

MR BARKER: Now, in our respectful submission, there can be little doubt that the proper inference to draw from that is that there may be, and indeed it is expected there will often be, in terms of the way it was put by his Honour Justice McHugh yesterday, a determination that, where an applicant group's ancestors had the exclusive occupancy right in respect of an area of sovereignty, they will have it today.

By virtue of section 225(e), there cannot be an order, plainly, of exclusive possession where you have a non-exclusive possession act in place. It really, with respect, answers the matter that has troubled those on this side of the Bar table and, I think, some of your Honours in respect of the exclusive possession point. There is a recognition in the statutory term that where you have, as defined, a non-exclusive possession act, you cannot have a native title determination for the applicant group giving them exclusive possession, occupation, et cetera. But the clear inference is, outside those areas, the determination of the nature and extent of native title under (b), can be, indeed, as it is in this case, in the terms of Justice Lee's determination and the determination of the court below.

GLEESON CJ: Now, let us consider this concept of concurrency in relation to one of the rights you claimed, that is, the right to receive a portion of any resources taken by others from the determination area. You were found to have that right but it was said to be a concurrent right. What does the word "concurrent" mean in that context? First of all, what does the word "resources" mean, and secondly, what does the word "concurrent" mean in that context?

MR BARKER: We see no reason, your Honour, why "resources" ought not be given its ordinary meaning. It includes natural resources, but there are some indications in his Honour's, the trial judge's, judgment, that he was referring to natural resources, but the expression "resources" has been used and we do not quibble with it because, as you appreciate, in our submission, the right that we have achieved in the first part of the determination, it really enables us to carry out the particular matters that arise thereunder in the determination.

GLEESON CJ: It was your word in the first place, was it not? I presume it was in the application.

MR BARKER: Well, yes, and I have set out the way the application was first set up - - -

GLEESON CJ: I do not want to know exactly what it means. You said it was natural resources. All right, we will exclude humans from it. Does it include water?

MR BARKER: Yes, it does.

GLEESON CJ: Air?

MR BARKER: Yes, it would.

GLEESON CJ: Wind?

MR BARKER: Part of the air, yes.

GLEESON CJ: Now, how do you have a concurrent right to wind?

MR BARKER: Your Honour, it will be the same question, with respect, that one might have in relation to other resources such as minerals. If you have a power of control in respect of an area of land, then you may be able to protect an interest in relation to wind.

GLEESON CJ: What do you mean by having a concurrent right to receive a portion of any resources taken by others from the area?

MR BARKER: Your Honour, can I firstly amplify the answer to that question by indicating something of the evidence relating to such a traditional concept or interest in the first place? I may do that, if your Honours will look at volume 7 of the book of materials at page 1713. This page, your Honours, is within a report - often called in Western Australia a "heritage report" - prepared by an anthropologist, having made a study of certain matters the subject of the report, for the parties referred to at page 1700.

Why it is called a "heritage report", just to put it in context, is that the Aboriginal Heritage Act of Western Australia protects sites as defined and the museum who control that Act require anthropological information to be put forward. So that, for example, mining companies resource activities can be given a go-ahead. I draw the Court's attention to page 1713 at about line 14, because here the anthropologist has pointed out that, in relation to what arrangements might be made between Aboriginal people and a resource company, that, and I quote:

Most of this upset derived from the fact that not everyone had access to capital goods. They point out that in traditional exchange systems a set number of goods are passed along a `line', through a network of groups, which make up the known Aboriginal world. These are exchanged with a different set of goods coming from the opposite direction. Neither sets of goods can be sent in the opposite direction or returned.

Now, there is that concept within the internal system and it is referred to elsewhere in the evidence as a wirnan exchange system, traditionally. What has happened in the course of those types of dealings that you see in this report is that it is relied upon by the persons with native title in their dealing with other parties to say, "This is the way we seek to deal, if we are going to treat with you in relation to these types of matters".

Now, what we say about the exercise of such a concurrent right is this, that if there are parties with other grants or interests which would seek to clash with that and who would not thereby seek to recognise the internal law of the native title holders in respect of receiving portions of resources and the like, that those third party interests will prevail but there is no reason why they cannot work concurrently.

It is the same situation, we would say, in respect of the Keep River National Park where, without again rehearsing all the evidence that there is here but taking what has been said, for example, by the Solicitor for the Northern Territory from the Bar table about the willingness of the Northern Territory Government or the relevant authorities to deal with the people, but the Aboriginal people who have rights and interests in Keep River National Park are not treated as traditional owners.

GLEESON CJ: Let me ask you a very specific and practical question, because I am simply trying to understand the meaning of the determination. Does the word "resources" include diamonds?

MR BARKER: It would, your Honour.

GLEESON CJ: Very well. So that Justice Lee determined that your clients have a right to receive a portion of any diamonds taken by others from the determination area, is that right?

MR BARKER: Yes.

GLEESON CJ: Now, that is said to be a concurrent right?

MR BARKER: Yes.

GLEESON CJ: What is the nature of a concurrent right to receive a portion of any diamonds taken from the area?

MR BARKER: Can I take your Honour immediately to his Honour Justice Lee's reasons at ALR 639 between about lines 3 and 12. It is clear, in our submission, that broken down in the way that your Honour puts the question, it becomes difficult for me in relation to the particular example your Honour gives to give an unequivocal answer, but the point we say is this, that what his Honour is indicating in the passage that I have made reference to is that there will be an array of different rights and interests in third parties, including those who under the law of the State of Western Australia once pursuant to a lawful mining tenement have taken diamonds and, again, the property in them for the purposes of sale, that will be at odds with the rights of a native title holder that existed prior thereto in respect of that resource. The point really is that there will have been, depending on the circumstances, to use his Honour's language:

regulation, control, curtailment, restriction, suspension or postponement of a native title right -

We accept, and it is our understanding of the judgment of the trial judge, that where a law has a particular effect, for example in Western Australia, it will compromise the native title rights and interests to that extent and that native title rights will yield but they are not extinguished. So that there will be circumstances in which concurrence will have no practical effect, as in the case of the diamonds, ultimately, but in other respects, for example, the management of Keep River National Park or activities on a pastoral lease or a very good example, your Honour, in the mudflats area to the north of the claim where the court below found "exclusive possession" et cetera, pursuant to section 225(e). The concurrence can occur quite readily in those areas.

GLEESON CJ: In so far as there is a right to receive a portion of diamonds taken from the area, what portion?

MR BARKER: We would not submit, having regard to the law of Western Australia, the Mining Act and how it operates in respect of a mineral once won, that we have the right to demand a portion, but what we do have, and we say the exhibit that the exhibit that I have just taken you to emphasises, is that that the internal system nonetheless enables the holders of that right to make reference to it and to endeavour to deal with other persons concerning the exercise of it.

Can I make this point in relation to minerals, your Honour, and I appreciate I am running very close to my time, that we have filed extensive written submissions about the operation of the Western Australian Mining Act. In essence, we say this, that in Western Australia privately owned minerals still exist quite independent of mining controls over minerals, property of the Crown, on privately owned land. There are still privately owned minerals in Western Australia. We draw from that this submission, that there is nothing in the Mining Act in Western Australia, section 117, which of itself extinguishes a native title right in respect of minerals and we say that the grant of a mining lease does not do that. But we recognise that once the diamonds in the instance your Honour gives are taken, then the law of Western Australia makes it not possible for us to insist upon the particular portion rule that your Honour refers to. But, as your Honour has previously pointed, the power to control or have other limited rights in respect of land can, nonetheless, be valuable and that is the way concurrent rights can work.

GAUDRON J: How would it work with respect to public fishing rights, for example, up near Lacrosse Island? Who is entitled to what proportion of the fish that John Citizen catches?

MR BARKER: Well, the answer is very simple, your Honour. To take that area, it is a very good example, if your Honours acceded to our grounds of appeal about that, you would see the public right to fish as not having any extinguishing effect, merely being a regulatory aspect of our exclusive native title there. People would have the right to fish. We would not have any right that would prevail over the public fisherpersons. If they took fish and wanted to keep them, then they can because they have that right recognised by the general law.

GAUDRON J: But what is your right to a proportion of the fish?

MR BARKER: Well, in that situation, we would not make a claim that there is one, but we have a right in our internal system. It can be emphasised and in dealings, as we say, for example, with mining companies, that principle is on very many occasions recognised and acted upon.

GLEESON CJ: Can you give an example of a case in which you would make a claim to a right of a proportion of resources?

MR BARKER: Your Honour, yes. Take the mudflats area: my clients currently hold the exclusive possessory right, et cetera, in respect of portions of that. If something of particular value were found in respect of that, we would be insisting that pursuant to our right to a proportion of the minerals there, that we ought be able to enjoy it.

GLEESON CJ: But can you give an example of a case where your rights are only concurrent and you would insist on a right to a proportion?

MR BARKER: It will be difficult if our interest ultimately yields to the other concurrent interest. All we are saying it is not necessarily the case where we have that concurrent right, that the holder of the other right is going to insist that we cannot enjoy that right, and we say that in practical terms, mining companies like that that Mr Fraser has appeared for here will deal with the native title holders on the basis that they, so far as their internal system is concerned, have such an interest. But we accept that at a certain extremity, we may not be able to insist on the exercise of that right, vis-a-vis holders of third party interests.

KIRBY J: You say in accordance with their traditional interests, but their traditional interests would not, at least as I understand it, have extended to diamonds.

MR BARKER: It depends how, with respect, your Honour, one wants to put traditional interests. As we submitted earlier and saying, with respect, echoing something not necessarily saying that it was his position yesterday that Justice McHugh put, but the true position here is that Aboriginal people have a set of laws and customs that cover all manner of their lives and you do not find within them something to cover every aspect of life. But if the right of a native title holder pursuant to this determination is to possess, enjoy the resources, et cetera, then that includes everything there, whether it has traditionally been used or not.

KIRBY J: It is grafting onto Aboriginal law - and it may be that the statute permits or requires this - elements of our concepts of law.

MR BARKER: With respect, I do not submit that that is what is happening. Section 225, as we put it, of the Native Title Act recognises that there will be determinations of the type that we have here. They should simply be enforced according to their terms. If it is said that there is an internal law or custom that prevents us from exploiting a resource, then it would be possible for somebody perhaps to take action in the general courts of the land to prevent that use. But absent a law or custom which constrains the enjoyment of the native title right to possess, then anything can be done with the land. That submission is characterised by the Commonwealth as one amounting to a claim for sovereignty over land. We reject that unequivocally. It is a recognition for the native title right to possess which can only be exercised in accordance with currently acknowledged laws and customs.

McHUGH J: Mr Barker, one matter that troubles me: I think in the 1973 report by Mr Justice Woodward there is reference to Aborigines thinking discussion of land ownership is unnecessary because they know who owns land, so they see it in a sense quite different from the way we would see it. We would see it by reference to something. Does that play any part in this in any way? Is my recollection correct about that?

MR BARKER: I am sure it is. It is some time since I have read that report and I have seen references to extracts of it. It is certainly a sentiment I have heard often as to why my clients need to be here at all. But there is a more profound point that underlies the comment, with respect, your Honour, and that is this, that once there is recognition by the general law of Australia of the external fact of native title and that there is a right to possess, occupy, use and enjoy, et cetera, whether or not it is exclusive, then the general law of the land does not have to bother itself any further in most circumstances with the content of the internal system because it will change, as Justice Brennan said in Mabo. It will change and the Court will only ever be interested in a native title application and what the currently acknowledged laws and customs are.

The groupings amongst people are going to change. The subgroups today, as demonstrated on the evidence, in the Miriuwung area in 50 years time may well be quite different, depending on how things develop. If you sought to write down rights and interests in respect of specific groupings and people and rights today, there will be change recognised by the common law, recognised by section 223(1)(c). That is the reality and that is what Justice Brennan was emphasising strongly at page 61 of his judgment in Mabo. The laws and customs themselves will change.

CALLINAN J: How do we know that? How do we know that there is not a law that requires traditional and continuing observance?

MR BARKER: How do we know, your Honour?

CALLINAN J: Yes. Is there evidence in this case that the traditional laws change, that they evolve in the same way as the common law does?

MR BARKER: Your Honour, the evidence in this case, including the anthropological evidence, is as follows: that Aboriginal tradition has always - perhaps, it is changing now - been oral, and information and knowledge is held for a two-generational or three-generational period. If you ask Aboriginal people today who are the right people for this country and who has the rights in respect of a particular area, they will tell you under their current acknowledged laws and customs what that might be, but, at the same time, if there were a set of anthropologists who went out and were working there in 1930 or 1920 and wrote certain things down, it might be at odds with what the laws are said to be today.

CALLINAN J: Where is the evidence to that effect in this case?

MR BARKER: Well, your Honour, that goes to matters that are not specifically the subject of any appeal, but it is there in the anthropological evidence that one will find on the transcript, and we can certainly make reference to the nature of that evidence in further written submissions in reply.

CALLINAN J: I would like some references to it at some stage, please.

MR BARKER: Your Honour, the primary legal proposition, which is what we seek to emphasise, is what his Honour Justice Brennan said in Mabo at page 61.

CALLINAN J: It seems to me that you trying to import into traditional Aboriginal law common law concepts of evolution of the law, and I would be interested to see, and not immediately, some references to the propositions that you just put to me.

MR BARKER: Can I take your Honours very briefly in relation to this issue to the decision of the Federal Court, presently unreported, in the Yorta Yorta Aboriginal Community v State of Victoria. It is No 27 on the State of Western Australia's list of authorities.

KIRBY J: I think what Justice Callinan might be suggesting to you, and his Honour will correct it if I am wrong, is that this is not a matter of legal proposition; this is a matter in each case for evidence. It might be true of one Aboriginal community. After all, the laws of the Medes and Persians never changed at all.

MR BARKER: It will be, your Honour - and I am not disputing that for a moment - but can I make the point though that started to develop in Yanner and has gone so far, and Justice Gummow, with respect, I think focused on it to a large extent. There are going to be circumstances, for example, as in Yanner, where there is perhaps a criminal prosecution of someone under the general law for fishing or hunting or doing something that is apparently proscribed by the law. If they are going to insist upon a right to do that activity contrary to the law, if you like, or because they are excused from it, they will have to prove in the court that they have the particular right to do what they have been charged with, and that will require some identification of the internal system itself. That is where the internal system will find expression in a general law court. But absent that type of situation, there is not going to be a circumstance very often where there needs to be that sort of inquiry into the local indigenous law.

CALLINAN J: Well, you say that, but if you want to assert a right that depends upon some sort of an evolution, as it were - I mean, take diamonds, for example. It is inconceivable that your clients would have been able to recognise diamonds or had any use for them or had the means of recovering them or polishing them or giving them any utility, commercial or otherwise. So that if you are looking to exercise some right in respect of them now, on one view, at least - and it may not be the only view - but on one view, at least, you might have to show that the internal traditions and customs permitted the winning and exploitation of these. It may not be the only view that is open, but it is a possible view and it is a view that I am putting to you and I am asking you to deal with it.

MR BARKER: Yes. And I addressed that specific issue in relation to a hypothetical situation on the Meriam Islands in my opening, your Honour, and that will be on the transcript, to say this, that unless an activity today proposed to be done pursuant to the native title right we have here is essentially proscribed by the internal indigenous system, it can be done, because that is the nature of the right we have. To deal with the specific proposition that your Honour puts, can I also - because it has not been previously referred to in our list of authorities - refer the Court to an article authored by the Honourable Hal Wootten AC QC, entitled "Mabo: Issues and Challenges", which appears at volume 1, 1992-1994 of the Judicial Review, published by the Judicial Commission of New South Wales, at page 333, and just quote what his Honour says, which, I think, with respect, encapsulates much of the propositions we have put to the Court and does deal directly with your Honour's question. And it is this:

The approach of the writers discussed in the previous paragraphs resembles deducing from an inspection of a grazier's property that his title does not allow him or her to grow crops, or from an inspection of the activities of nineteenth century freeholders that freehold title does not allow the holder to establish airstrips or radio transmitters. It has echoes of a view rejected in Mercer -

which is the subject of footnote 80, (1904) 2 Ch 534 -

(a case referred to by Young J in Mason) -

unreported in the Supreme Court of New South Wales -

where Farwell J said that a custom for all inhabitants to play all kinds of lawful games justified the defendants in playing cricket, even though cricket was unknown in 1189 (the reference point for "time immemorial.")

We say that is essentially the position we have here.

CALLINAN J: But that seems to me to be necessarily equating native title or native title rights with common law fee simple.

MR BARKER: Your Honour, it may be characterised that way, and we make, of course, no apology about putting the submission in that way, where the evidence shows, in accordance with the determination required to be made under section 225 of the Native Title Act, that there is a right to possess, occupy, use and enjoy. That is what not only the common law per Mabo Justice Brennan, but also the Native Title Act itself comprehends will be made in appropriate cases. We say this is an appropriate case. It may be that not all evidence adds up to this right, but that is the right we have here.

CALLINAN J: And you are going to refer me to the evidence here, because the way in which Justice Kirby put the matter to you is exactly what I had in mind.

GLEESON CJ: You can do that in your written additions to your reply, can you, Mr Barker?

MR BARKER: May it please the Court.

GLEESON CJ: Yes, Mr Solicitor.

CALLINAN J: Could I just ask Mr Barker one question before he sits down. Mr Barker, have you seen this analysis of Wik, which I think has been done in tabular form by Western Australia?

MR BARKER: The one that was handed to me at 14 minutes past 10 this morning, your Honour?

CALLINAN J: Yes. What I am going to ask you to do, and, indeed, I would ask Mr Basten to do at some stage if he can, is to note on it any disagreements with it and any additions and, indeed, if that could be done in the same form, because I think it will be a most helpful document, certainly to assist me to analyse Wik and what the ratio of the majority is in Wik. I do not suggest you do it now, but if it can be done, it will be very helpful to get one composite document, that is all.

MR BARKER: We will do everything we can to meet your Honour's request.

CALLINAN J: Thank you.

MR BARKER: May it please the Court.

GLEESON CJ: Thank you, Mr Barker. Yes, Mr Basten.

MR BASTEN: If the Court pleases. May I say immediately we will seek to answer your Honour Justice Callinan. Whether we can do it in the same form is a different issue, because the reason why members of the Court went to particular matters may be of great importance to understand how the case was decided.

CALLINAN J: I understand that. It would be helpful if I could get it in some sort of a tabular form anyway, Mr Basten.

MR BASTEN: Certainly, your Honour, yes.

CALLINAN J: You are not bound, of course, to accept the categories or classifications.

MR BASTEN: We will do that, your Honour.

CALLINAN J: Thank you.

MR BASTEN: Before I forget, may I ask if the answer to your Honour Justice McHugh's question, as Dr Pritchard has suggested to me, may have come from an article by Stanner, which is in the materials produced by the Human Rights Commission, in the volume of materials, at tab 18. On the first page of that, at page 319 of the volume, at the bottom of the first page, Professor Stanner says something about a universal understanding of a given truth, which may be along the lines of something that your Honour had in mind. I cannot remember if it is in Woodward, to be honest.

Might I also, while your Honours have that, just refer to page 329 at about point 3 to point 7, where Professor Stanner repudiates what might be described as the flip side of ownership of land, namely, the idea that the land owns the person, as an inaccurate understanding of Aboriginal traditional law and custom.

GUMMOW J: Page 329?

MR BASTEN: Page 329, your Honour, yes, on the right hand page. Your Honours, might I start by addressing the concept of exclusivity which has been the source of some discussion? The concept of exclusivity lies at the heart of our concern with the majority judgment in the Full Court in relation to pastoral leases because it was that which was said to be extinguished. In the Commonwealth's eyes, it may not be a simple, single, freestanding right, we are told, but a combination of other otherwise unidentified rights. I refer to the transcript at 26525. Western Australia warned your Honours of the danger of over-intellectualisation, by which I take them to mean that this concept may not withstand close scrutiny.

GUMMOW J: Close intellectual scrutiny.

MR BASTEN: That is so, your Honour. That is a proposition, I hasten to add, with which we agree.

GLEESON CJ: What, that we should not think about it too hard?

MR BASTEN: Not that you should not, your Honour, but that an insight might come if you did. We seek to explain that in paragraph 2.6 of our reply, namely, that it can only be understood in Hohfeldian terms, in what he described as a "multital right". In other words, the concept of a property right as divided into separate rights against all individuals, billions of them perhaps. But those in prior occupation of land have their right to exclude others qualified by the creation of a class whom they cannot exclude. Now, there are two, or possibly three, consequences, in legal terms.

The first is that the native title right is qualified for so long as the interest exists which creates the qualification - that is our contention. The second possibility is that the native title right to exclude those within the class is permanently extinguished. In other words, we can never again exclude a pastoralist from our land. That may be the reading which the Territory gives to the majority judgment. The third possibility is that because we cannot exclude pastoralists once a pastoral lease has been granted, we can never again exclude anybody, ever.

GLEESON CJ: Coming back to the first possibility, which is your preferred one, if the qualification is the result of a statute, for how long does the statute subsist? When you are determining, at a particular time, say, today, the consequence of a statutory qualification of a right, do you attach a time limit to the statute?

MR BASTEN: No, we do not, your Honour. Can I indicate a slightly different analysis? The consequence is what we are concerned about. In effect, whether it is extinguishment or suppression. The proposition we seek to put is that it is only if you adopt the disaggregative theory of rights that extinguishment can be correct. We say that proposition is unjustifiable, both in principle and in terms of the common law. That is not how the common law works. At paragraph 2.4 of our reply, we give the indication of the television crew who wants to come onto the pastoralist to photograph, and so on, a women's site.

McHUGH J: I notice that, but why could not the pastoralists allow them to come on? They have exclusive possession. Surely, they could allow the television crew to come on to photograph them in their home, if they wanted to.

MR BASTEN: Your Honour, we do not understand it to be anybody's proposition that the pastoralist has exclusive possession, depending on what your Honour means by that, I suppose.

GLEESON CJ: Exclusive possession is more than the right to exclude people; it is also the right to let people come on. A right of exclusive possession includes the right to decide who may come as well as who must go.

MR BASTEN: Yes, control of access. What we say in relation to that is that the pastoralist's right in that regard is limited to the purposes of the interests which he or she holds, namely, to use the land for pastoral purposes, and we would say that particular purpose is not within the purpose of the lease.

GLEESON CJ: But if a pastoralist had a right of exclusive possession that would confer upon the pastoralist, would it not, the right to say, "All Aboriginal people may use this land for hunting, not merely the Aboriginal people who have a traditional right to hunt on it"?

MR BASTEN: Your Honour, if the pastoralist has a right of exclusive possession, then pursuant to section 23C there is no native title right left; it is extinguished. That is the consequence - - -

GLEESON CJ: But apart from the provisions of the statute, a right of exclusive possession - we seem to keep talking about a right of exclusive possession, only in terms of the right to keep people out, but it also includes a right to let people in and if a pastoralist has the right under a lease to say, "All Aboriginal people may hunt on this land, not merely the people who had a traditional right to hunt", that could have very significant practical consequences.

MR BASTEN: But in that case, your Honour, those people come on by virtue of the consent of the grantee of the interest. That was what was said in Wik about the possibility that people - by those who thought that the pastoral lease extinguished native title in relation to their continued presence.

GLEESON CJ: Yes, but a pastoralist who did what I just supposed would, it might be thought, have done something very damaging to the rights and interests of the traditional owners.

MR BASTEN: Yes, and we would say that there is no basis in law for that proposition. I do not know whether your Honour's example is seeking to encompass the form of the Western Australia reservation, in the broad sense.

GLEESON CJ: No, I was not think about that sort of thing.

MR BASTEN: Yes. We do have a submission about that and that is, namely, that the words "in their accustomed manner" are designed to operate to restrict those whom we would now say had native title rights, but we would say that the authority of the pastoralist does not extend, so far as your Honour puts it to me, because that would be beyond the terms of a purpose for which the pastoral lease is granted and would be inconsistent with the reservation in favour of traditional Aboriginal use. That reservation, we say, as Justice Toohey said in Wik, prevails over the rights of the pastoralist.

GLEESON CJ: Yes, I was only seeking to draw attention, by example, to the fact that to talk of exclusive possession, merely in terms of keeping people out as distinct from letting people in, can be misleading.

MR BASTEN: I appreciate that. Yes. If I adopted that terminology, it was partly because that is the terminology of Radaich v Smith and it talks in terms of the right to exclude strangers and the landlord, Justice Windeyer in the passage which Justice Gummow refers to in Wik at page 195.

GUMMOW J: It is all explained by Justice Toohey.

MR BASTEN: I am so sorry?

GUMMOW J: I was referring to what Justice Toohey said.

MR BASTEN: That may be so, your Honour.

GUMMOW J: Yes. He was talking about Radaich v Smith.

MR BASTEN: Yes. No, that is what I was saying.

GUMMOW J: Yes.

MR BASTEN: Could I, secondly, come to your Honour the Chief Justice's question about inconsistency? You have heard a number of answers, perhaps, but perhaps I could suggest one. The question, in our submission, cannot be answered by setting alongside each other the two lists of rights and comparing them. The question is, ultimately, what legal relationship exists between the holders of the rights.

Just as under general law there may be people who have interests in common, even in a fee simple estate, who can exclude others but not each other, so one goes in this area to the pastoral lease, the statute, wherever the reservation is found, and identifies the relationship in terms of that legal material in order to see if there is inconsistency and whether in the alternative the rights can be construed in a manner where they coexist.

If your Honour's question was concerned with the terminology of paragraph [8] of the Full Court's determination, then I can understand the concern. It seems inappropriate in that paragraph, where one is talking about the relationship between coexisting rights, to use the concept of "inconsistency". It is at least infelicitous. A clause in a determination which is intended, as this appears to be, to reflect the terms of section 225(d) would, in our submission, properly be cast in the terms of section 44H, of which your Honours have heard much, and that is appropriate because it is now a pivotal provision in the Act.

Might I turn, in considering 44H, to say something about the submissions made by the Commonwealth yesterday that native title can only be extinguished by the exercise of governmental power. We agree that it is correct in principle but importantly, we say, it is a principle which is now reflected in Division 2B of the Native Title Act which is expressed in terms of inconsistency of rights. It is also reflected in such provisions as section 47B which talk about the grants or creation of interests as the source of extinguishment which must pursuant to that provision be disregarded.

In other words, there is a consistency about the Act which conforms to what the Solicitor-General put. The only exception that we can find in the Act to that proposition is section 47(2)(c) which relates to pastoral leases held by Aboriginal people. We think that that terminology, which is not mirrored elsewhere in the Act, or at least the first limb, needs to be read in the light of the 1998 amendments. It was not amended when 47A and 47B were inserted.

Might I also say this in relation to the Solicitor's examples. He referred to various contingent interests, options and the like. I am not sure that he invited your Honours to deal with these examples but, in our submission, they give rise to their own particular difficulties under the Act, which might suggest that they should be left for another time unless it is otherwise necessary to consider them. For example, in section 228, which defines what is a past act, most of the section, subsections (3) through to (9) concern what are past acts in a way which would include things which have not only not happened as at 1 January 1994 but may not yet have happened.

Similarly, in section 24IB and 24IC there are references to classes of future acts which may also be identified in terms of rights which have been created heretofore. If that is the sort of interests to which the Solicitor referred, obviously one would need to consider in a particular case how the Act operated.

HAYNE J: If one is concerned to identify whether there has been extinguishment in the past, do you say that it is appropriate to give attention to the particular government act or sovereign act that is alleged to be extinguishing?

MR BASTEN: Essential, your Honour.

HAYNE J: Yes, and what, if anything do you say about the submission of the Commonwealth, which I took to be that the sovereign act of granting, even conditionally or contingently, a right to exclude Aboriginals from land, is inconsistent with the continued recognition by the common law of a native title right of Aboriginals to enter that land.

MR BASTEN: We say in that regard, your Honour, that the first condition or circumstance in which that would be true, would be if the right were given in relation to the whole of the land. In other words, we do not understand it to be put, and indeed I think Mr Hiley, who seemed to adopt this proposition, did not put it that one could, as it were, delegate to another person the power to extinguish native title in relation to areas within a grant. Now that says something about the nature of the power one is looking at and we would perhaps put it - - -

HAYNE J: And thus attention to whether particular land was fenced or improved on this approach becomes irrelevant. The relevant question is whether there has been a grant, albeit a contingent grant, of a right to exclude from the whole of the granted area. Now what do you say about that proposition?

MR BASTEN: We agree with that proposition, your Honour, and we note that in Mr Hiley's submission it was the power to fence the whole of the land, which is, as I understood it, gave rise to extinguishment as at the date of the grant. Now, if that be so, that makes a nonsense of the statutory attention to provide a reservation for occupation and use by Aboriginal people of that very land, or at least of part of it.

Your Honours, before leaving that question, might I answer a question that your Honour the Chief Justice asked about section 11. We do not entirely agree with the answer that Mr Barker gave. Section 11 says:

(1) Native title is not able to be extinguished contrary to this Act.

That is clearly not simply limited to a future view of what is to be extinguished or capable of being extinguished. This Act spoke, as at the date of its enactment, of legislative Acts which occurred prior to its enactment, namely from 1 July 1993. So at least, to that extent, that provision appears to have a retrospective operation. If one goes on and reads what subsection (2) now says, although it is not part of the Act, the heading has any work to do, it suggests that section 11(1) does not have any such restricted operation as that which might have been suggested before the introduction of 11(2) in that form, because of the reference to Division 2B.

GLEESON CJ: If Mr Barker had answered my question differently, I was going to ask him then to explain the relationship between section 11 and the concept of confirmation in Division 2B.

MR BASTEN: Yes. Now you answer it differently to the extent of things that happen after 1 July 1993 and that may not give rise to any particular problem - but if you went back earlier than 1 July 1993, the question of relating section 11 to the concept of confirmation, I would have thought would be a puzzling one.

MR BASTEN: Well, that is so, your Honour. Can I say two things about that. Firstly, your Honour is referring to subparagraph (a), I think, in asking the question. Subparagraph (b) also has work to do, but I need not address that aspect of it. In relation to subparagraph (a), the question they depend upon, the correct construction of Division 2B, it has been suggested that - and I think the Northern Territory so says - one should properly look at whether or not there has been extinguishment at common law, absent any reference to Division 2B.

GLEESON CJ: Did Division 2B not come in after 11(1)?

MR BASTEN: Yes, it did, your Honour.

GLEESON CJ: So you can hardly construe 11(1) by reference to 2B, unless you say 11(1) changes meaning when 2B was inserted in the Act?

MR BASTEN: That depends upon the use one makes of the subheading over the subsection, "Effect of subsection (1)". It is not immediately obvious that that is an accurate description of what subsection (2) does, but if it has some meaning, as an exegesis of subsection (1), then one needs to construe subsection (1) now with that in mind. I do not know whether it matters terribly, your Honour.

What may matter, though, is the role one gives to Division 2B now. We say that it is the focal point of any current consideration by a court of extinguishment. We say that because that is consistent with the proposition which we take conveniently from Mabo (No 1) as to the effect of a declaratory act. Now, the significance of that is that 23J - I think your Honour the Chief Justice might have drawn attention to in the past - appears to contemplate that there may be extinguishment which occurs as a result of this subdivision which would, in any event, have been extinguishment which occurred at common law, ie, that which is now confirmed, and that which would not have been the case at common law.

Now, in relation to confirmation, it would still make a nonsense of this detailed set of provisions if one were to start with the common law. We say you only go to the common law to the extent that these provisions have any operation in relation to a particular act if you are dealing with a compensation application, which is a separate form of procedure under section 61.

GLEESON CJ: But the question of who is liable to pay compensation is bound up with the scheme of this Act, is it not?

MR BASTEN: Yes, and one would say that 23JA, for example, would almost undoubtedly vary what might have been the situation before.

GLEESON CJ: Now, I have not checked this, but I presume that part of the scheme of this legislation now is that if extinguishment occurred at common law, nobody is liable to pay compensation.

MR BASTEN: Well, it depends perhaps on - I used the phrase "common law" perhaps ill-advisedly, but the concept in the Act is otherwise than under this Act, so that compensation might have occurred as a result of the Racial Discrimination Act.

GLEESON CJ: Yes, leaving that to one side.

MR BASTEN: Yes. Well, the only other likely possibility is an act of the Commonwealth in contravention of the constitutional guarantee of just terms. Those would be the two possibilities, I suppose.

Your Honours, it may be of assistance, in order to appreciate the nature of the concurrent interests, if I briefly take your Honours to aspects of the pastoral leases in the Northern Territory which conform with the Queensland scheme considered in Wik. As a matter of convenience, might I ask that your Honours have the appellant's bundle of legislation in matter No P63 and I will hand up, if I may, a very small bundle of provisions which are collected for this purpose. I will only take two minutes of your Honours' time.

Your Honours, in our reply we refer to some analysis of Pastoral Lease 552 which is found in volume 8 at page 1972, but which I provided a blown-up copy for present purposes to your Honours. The legislation which was in force in relation to this pastoral lease is found in the volume of our legislation at page 133. It is a form of the Crown Lands Ordinance 1931 as in force at the relevant date in the mid-fifties.

The passages we would seek to draw your Honours attention to are, firstly, section 24 which begins on the right-hand side of page 132 and continues to 133. The reservation itself is paragraph (e). Your Honours will note the bottom right-hand - perhaps your Honours are familiar with the extent of that reservation which I think the Solicitor for the Commonwealth described as the most comprehensive form in which the reservation tends to be found, at least in its terminology if not its effect. Might I just note the reference to "entitled to do" in the final two lines of the determination, which reflects perhaps the terminology of "in their accustomed manner," which your Honours have already been familiar with.

Section 24B at the bottom of the right-hand page makes it an offence subject to a penalty to interfere with the "full and free exercise by the aboriginal inhabitants . . . of the rights reserved to them" in the lease. That is a significant provision. I might say it has not always been in the Northern Territory legislation nor is it, I think, now. At the relevant time it was.

Compliance with the reservation also constituted a covenant under the lease. That appears from the lease document itself, which is the first document in the bundle, page 1 of the bundle your Honours will see towards the bottom of the first page (a), (b) (c) (d), which are specific reservations, followed by reference to the reservation in favour of Aboriginal people more specifically set out in the statute. Then on the following page towards the bottom, subparagraph (13) the covenant that the lessee:

will comply with the provisions of the Ordinance and of the Regulations for the time being in force.

CALLINAN J: Mr Basten, do you remember yesterday the Chief Justice and I, I think both, put a proposition with respect to the fact that the reservation was in favour of all Aborigines rather than any particular community of Aborigines. Do have a submission on that?

MR BASTEN: Yes, three, perhaps, your Honour. The first is that we do not read it so.

GLEESON CJ: It is the concluding words. You rely on the words "would have been entitled" as importing traditional rights?

MR BASTEN: Yes.

CALLINAN J: What about the words "to all Aboriginal inhabitants of the Northern Territory" at the beginning of the reservations. Now, I can readily see the argument by reference to - - -

MR BASTEN: Is your Honour looking at the lease?

CALLINAN J: I was actually looking at the Ordinance itself. Should I be looking at the lease rather than the Ordinance, because I thought the ordinance governed the way in which - - -

GUMMOW J: The ordinance say "the Aboriginal inhabitants."

MR BASTEN: Yes.

GUMMOW J: It does not say "all."

MR BASTEN: That is so. I just wondered if I - - -

CALLINAN J: The actual paragraph (e) of 24:

shall be read as a reservation giving to all aboriginal inhabitants of the Northern Territory - - -

MR BASTEN: Oh, I see in the third line, yes.

CALLINAN J: So does not the Ordinance govern the construction no matter what it says of the reservation contained in the lease?

MR BASTEN: Yes, but - - -

GUMMOW J: The "they" in the second-last line governs the lot.

MR BASTEN: Yes. As "they" meaning, perhaps, all or anyone who was an inhabitant.

CALLINAN J: That is the question.

MR BASTEN: There are two aspects to it perhaps your Honour. One is that they are rights in relation to the leased land. "Aboriginal inhabitants of the Northern Territory" might mean from anywhere in the Territory, I suppose.

CALLINAN J: I can see that readily enough. I am really interested in the submission on the basis of - - -

MR BASTEN: Of your Honour's proposition?

CALLINAN J: And, I think, the Chief Justice raised the possibility yesterday.

GLEESON CJ: There is another small problem of construction we probably have not got the time to try and work it out and it does not matter, but there is a possibility that the last two lines of (e) only relate to taking and using "for food, birds and animals" and not the "right of ingress, egress" et cetera.

MR BASTEN: Yes. Your Honour, I understand - - -

GLEESON CJ: If it meant that it would give rise to the precise problem that Justice Callinan is asking about.

MR BASTEN: Your Honours, can I just say this in very brief form, in our written submissions we have spent a little time in considering the history of the reservations both in WA and in the Northern Territory, in particular, in appendix A to our submissions in relation to the - I am so sorry, I mean the original submissions in the red-spined binders, dealing with the history. We say that if you look to the history of the reservation it is tolerably clear what was intended and we do not ask that some ahistorical approach be taken to the concept of entitlement or rights.

What was sought to be protected was the factual circumstances, as they were then understood, on the ground. We might now talk of them in terms of native title rights. We do not see the reservations in those days as having that effect. If one looks at that history we say that a purposive construction gives rise to a different view to that which I understand is literally open. Might I say two other things, though. These relate to the consequences of that. It may be that that has consequence if, in particular, one treats the reservation as a compulsory conversion for the purpose of 223(3) and I think that was the context in which it was discussed yesterday.

CALLINAN J: With Mr Hiley. That was one occasion, yes.

MR BASTEN: Yes. May I say that that interpretation was given of the Western Australia statute. Nobody has put that in relation to the Northern Territory. Might I also say that we do have interveners and of course they have a right to be heard. The particular ground which would support that issue is now only to be found indirectly in the Crosswalk notice of contention and whether it is there is not entirely clear from the Crosswalk submissions. They do not argue this point at all, but taking it as read in that way - I suppose I have to qualify myself again - we do not understand 223(3) to have any application to the Territory, but suppose it did to the Western Australia lease, then the question is whether those rights are native title rights and interests.

What we understand to be the purpose of subsection (4) is to accept that the creation of native title under subsection (3) might, on its face, pick up the broader group sometimes described as traditional owners and other inhabitants who happen to be on the land. Perhaps they have been displaced from their other lands. Subsection (4) then confines the definition of native title rights as expanded by subsection (3) to those which were native title rights and interests properly so understood. We would have thought, on any view, that is a sub-category of all the inhabitants. That is how we would read those provisions.

I think if I may just indicate the other passages in the legislation to which I was taking your Honours. Firstly, section 24A I think I mentioned deals with a breach of a covenant - I am sorry, I do not think I did mention that - and provides for forfeiture. That was in the 1931 Ordinance to which I was having reference. Might I then turn to a slightly different point. In the bundle of legislation at page 82, and there are provisions - and I go back a little. I will not take your Honours through all of them but may I just refer to the Northern Territory Crown Lands Act which is the first of the relevant statutes.

At the top of 82 your Honours will see sections 96 and 97. Perhaps I can simply say that 96 deals with a power of ejectment in the Minister. It is equivalent to 204 discussed in Wik and set out at page 146, conveniently. Section 97 is the equivalent of section 203 discussed in Wik and set out at the same page, and if one has the 1931 Ordinance, in the loose leaves that I gave your Honours, it is sections 118 and 119, by that stage. I need not delay your Honours - - -

GLEESON CJ: What was the date of that Ordinance, again?

MR BASTEN: The 1931 to 1959 Ordinance in the materials I just handed up, 118 and 199 are merely noted because by this stage those sections are almost identical to the Wik legislation.

CALLINAN J: Which is discussed, I think, in Wik at 154, 191 to 193 and 246. Three judgments, I think

MR BASTEN: I went from 191 to 195, but those are the references I had too, your Honour.

CALLINAN J: It is also touched upon by Justice Toohey in dismissing an argument by Queensland. I have just forgotten the reference to that, but there are four references that I can find.

MR BASTEN: There are, your Honour, yes, and I will come back in our written submission to say what we make of that. Finally, in that document which I handed up, your Honour Justice Gummow was asking about the abolition of interesse termini. I think it has occurred. It was the Law of Property Act 2000 in the Northern Territory, which I think is in - - -

GUMMOW J: .....obviously had that in mind.

MR BASTEN: I believe that it is in - perhaps cases in native title help one to reform the laws generally. But it came into force, obviously, well after any event which is relevant in these proceedings.

GUMMOW J: I think it is section 74 of the WA Property Law Act 1969 .

MR BASTEN: Yes, I am sorry, I was not - it may not be of any concern, your Honour, but the references are in volume 16 of Halsbury's "Laws of Australia" at paragraph 245-50. Your Honours, I think those were the matters I wished to deal with in relation to the pastoral leases in the Northern Territory. Before leaving our appeal, may I make two short points? Firstly, in relation to the protection of cultural knowledge, we deal with this in yesterday's reply at page 7.9 through to page 9. We do not wish to expand on what we say there but we do note that, accepting the force of your Honour Justice Gaudron's criticism of the imprecision of the draft in the grounds, we have sought to reformulate what we would seek to pursue.

GAUDRON J: Yes. But then, if I may say so, you then - - -

MR BASTEN: Top of page 8.

GAUDRON J: Yes - give examples which relate to the disclosure by other persons having rights or interests in the land.

MR BASTEN: Of information supplied to them?

GAUDRON J: Yes.

MR BASTEN: It might depend on the terms on which it was supplied, your Honour.

GAUDRON J: Yes. But the difficulty I have is with your anthropologist who wanders in and is told information. That situation seems to be protected by the general law and, in fact - - -

GUMMOW J: Foster v Mountford (1976) 14 ALR 71, which was such a case.

MR BASTEN: Well, that sort of cuts both ways, your Honour. In a sense, why should it not be encompassed as a native title right if it is otherwise recognisable by the law?

GUMMOW J: Yes, but the anthropologist had sold his manuscript to some publisher who had no notice of any of this. You would want to enjoin the publisher, would you not, even though he was an innocent third party.

MR BASTEN: That would obviously have a very real effect on the likelihood of obtaining relief and the nature of the relief. But, certainly, that has happened in other cases.

GUMMOW J: Not, I think, in respect of a totally innocent third party who paid money for it.

MR BASTEN: It might not be totally innocent, no. I mean, I do not know that I wish to spend time analysing that aspect.

GUMMOW J: We have to know before we formulate this right. That is the trouble.

GAUDRON J: You see, from my point of view, I think there would be no difficulty in saying there was a native title right if you said, "To prevent the disclosure by any other person or corporation having any interest in the land". It is much narrower than you want, but I can see that at that point that it is in relation to land.

MR BASTEN: But it is our interest which is in relation to land, we say, and just as we can exclude, not another person who has an interest in land, but the stranger who has no interest, so we would wish to be able to deal with the person who has no interest in the land, but who has obtained and seeks to disclose secret sacred information. I am not sure that the result in Mountford was as your Honour indicated. We thought the case was settled after an interlocutory injunction had been granted.

GUMMOW J: Yes, what is reported is an interlocutory injunction, you are quite right.

MR BASTEN: Yes, but I understand the point your Honour is making. I do not think I can delay any further on that matter, your Honour. Our other ground of appeal concerned the limits of other interests in relation to land referred to in section 225(b). We covered this in our earlier submissions and nothing has been raised orally which we would seek to expand upon.

Might I then move to the Territory's appeal. We dealt with the Territory's submissions in our combined submissions and Territory appeals, which we filed on 13 February, at pages 26 to 29. We dealt with the Conservation Land Corporations arguments in Part 7 at pages 24 to 26. All we refer to in our reply at pages 11 to 12 is the statutory authority argument; we do not seek to say more than we say in writing about that. We also dealt with the improvements question at page 11 at paragraph 5. In our earlier submissions we suggested a revocation of special leave in relation to that ground and we still submit that that course remains open. We do not seek to expand upon the written submissions any further.

In relation to the Western Australian appeals, may I just make two points. The course of the discussion earlier in the hearing suggested that we would not need to expand on our submissions concerning the pastoral leases. On reflection, your Honours, we think that the criticisms of the Full Court's approach, on the basis on which it addressed the issues, remains cogent and would have a bearing on the way that the Court dealt with it, if it were required to do so, within the statutory framework. The criticisms, in our submission, also confirm the materiality of the errors in the Full Court's approach. We deal with it in the red-spiral bound submissions at Parts 5, 6 and 7, at pages 14 to 29.

In answer to a question from the Court as to whether there is a Western Australian version of Fry, no one has suggested any and we are not aware of one. We quote Fry's observations in respect to Western Australia at paragraph 6.19 of our earlier submissions. We also note that Appendix A to our Territory appeal submissions traces briefly the history of the reservation in both jurisdictions.

I have referred briefly to what Mr Hiley said yesterday in relation to 106(2). Might I say one other thing in that regard. Mr Hiley argued that the grant of the pastoral lease applied to the whole of the property. Whether that argument is correct or not requires attention to the pastoral lease in question. There is, for example, one at volume 5 of the bundle of materials at page 1174. Read in the context of section 140 of the Act, we do not read that lease as imposing an obligation to do any external fencing. Subdivisional fences and fences around buildings and sheds are referred to, and that appears to be the extent of it. Otherwise, I think I have made the submissions I seek to make about that matter.

Might I just say a couple of other general points, if I have - I am not sure when my time - - -

GLEESON CJ: You have about another 10 minutes or so, Mr Basten - - -

MR BASTEN: Thank you, your Honour. I appreciate that.

GLEESON CJ: - - - because Mr Barker was detained a little over time.

MR BASTEN: Thank you. Might I first say that there are provisions in relation to the effect of the determination made under this Act which have not been referred to and, perhaps, bear only indirectly on the nature of the matter. One needs to look, though, to sections 193(1)(c), which deals with approved determinations. That is a defined term in subsections 13(3) and (7), each of which refers to either a determination by this Court, or a determination made pursuant to an application under section 61 - that is section 13(1)(a).

One then goes - and I am perhaps taking your Honours too quickly, but I do it really by way of information - to the ultimate consequence, which is found in section 199, namely, that the Registrar notify land titles offices. I am not conscious of any legislation in Western Australia or the Northern Territory which, as it were, provides complementary State legislation, following on that notification. I am aware that section 12C of the New South Wales Real Property Act 1999 gives the Registrar-General a rather broad discretion as to what, if anything, he wants to do with the information.

Secondly, might I just say a word about the operation of section 223(1). Our analysis is, shortly, this: it is a discursive definition in which subsection (1)(a) identifies the sources of the rights and interests; paragraph (b) requires that the connection of the holders of those rights and interests with the land be traditional; (c) is generic - it deals with interests of a kind, as your Honour the Chief Justice put it, as is apt for a definitional section, we would say - and picks up such matters as the repugnancy to which Justice Brennan referred in Mabo. Extinguishment, in our view, is better considered not as arising in the definitional section, but as arising under the chapeau to 225, namely, the requirement, before a determination is made, that native title exists.

GUMMOW J: Yes. I think we had a case a few months ago in which the court below had got trapped into construing a definitional section in the Corporations Law as it was a substantive provision.

MR BASTEN: Yes.

GUMMOW J: I have forgotten which one it was now. It was section 559H, I think, in the Corporations Law. One has to be careful one does not fall into the same trap with 223.

MR BASTEN: That would be our submission, your Honour.

GUMMOW J: You have to connect it with a particular section on every occasion and the particular section it is connected to here is the one about applying for a determination, is it not, and making a determination?

MR BASTEN: Yes. I hope we said something similar in Yarmirr, but I - - -

GUMMOW J: Yes.

MR BASTEN: On another point, your Honour Justice McHugh made some comments yesterday on interests in arid lands. I appreciate those were purely arguendo. There would be an issue about that, on the facts of particular cases, which does not arise here. Justice Toohey in Mabo had a slightly different view, at pages 188 to 189, drawing, of course, for a factual understanding, no doubt, on his experience in the Northern Territory as Land Commissioner. We merely note that.

Might I pick up your Honour Justice Hayne's comment to Mr Barker this morning about the right to speak for country. We would say that that is the practical reflection of the traditional connection with country, which traditional Aboriginal people see as being part of the given order of things. It is as well described by Stanner in the passage in Meneling Station 158 CLR 356 to 359, and also in his more recent article, to which I referred earlier. It is the reason Aboriginal people speak of "our country" or "my country" and assert, as they did in evidence in this case, not discussed in the judgments at length, because it was uncontroversial. It is the reason they assert a right to be asked about all aspects of the use and enjoyment of the land and to grant or refuse permission for those activities.

Those matters have undoubted consequences for the drafting of an application. That is not without its difficulties under this Act, at two levels. We have been speaking about translation. Translation itself occurs in two levels. I think we meant translation of rights identified under traditional law and custom into rights familiar to the common lawyer, but there is an anterior level which may need to be acknowledged, and that is the translation from the Aboriginal language into English, the language of our courts, and that is a difficult matter.

It may have occurred by the Aboriginal witnesses themselves adopting certain terminology. It may have occurred in the past, as a result of linguistic evidence or interpretation, or it may have occurred for the purposes of the hearing. The second issue is, at what level should the application itself be drafted, and perhaps there is an ambiguity as to what is required by section 223 which would lead to an understanding of why applications are drafted in the form in which we see them. It may be that the proper course for a drafter is to identify first in terms of the traditional laws and customs that which is asserted and include as a draft determination the rights and interests in a form which might be recognised and enforceable under the common law. But might I note that these applications are applications, in this case in particular, made to the Native Title Registrar, not to a court.

GLEESON CJ: Mr Basten, if a fundamental right considered in traditional terms is the right to be consulted about entry upon and use of land, then to avoid technical terms like "extinguishment" and "inconsistency", leases and reservations, even, but certainly leases seem to constitute a fairly fundamental invasion of that right.

MR BASTEN: Yes. Well, most leases, other than what are called non-exclusive pastoral leases would extinguish all native title.

GLEESON CJ: But the very grant of the instrument, whatever its terms, is an invasion of that right.

MR BASTEN: Yes, it is, that is why we do not shy away from the concept of partial extinguishment. What we do draw the line at is partial extinguishment of a right, and the point we seek to make in the submissions is that it depends how you define the right, but keeping people off some parts of land or keeping some people off some parts of land does not involve extinguishment, we would say, of the basic right properly understood.

GLEESON CJ: But the grant by the Crown of a pastoral lease without consulting the Aboriginal owners is itself inconsistent with the fundamental right of which you are speaking.

MR BASTEN: That is so, and if it occurred in the past, then it no doubt occurred validly. I mean when I say in the past, before October 1975. It no doubt occurred validly, even though it would not have occurred had there been some ordinary title interest.

But, with respect, your Honour, that of itself does not necessarily satisfy the test either under 23D and 23C, nor does it demonstrate a clear and plain intention that for all purposes the presence of Aboriginal people on the land is no longer to be countenanced. I deliberately use non-rights language.

GLEESON CJ: But it does demonstrate a clear and plain disregard of their right to speak for the land.

MR BASTEN: It does, and that was considered a matter of some concern in Mabo. What we are now doing is working out the consequences of that disregard, whether it be total or partial extinguishment of the native title rights which may have theretofore been untrammelled. It is simply a consequence though of the exercise of sovereign power which cannot be gainsaid in this Court. Your Honours, unless there are any other matters - - -

GUMMOW J: Yes, there are. In any further written material you put in on this question of the cultural right, if I can use that, some consideration might be given to what significance there is, if any, of the moral rights legislation of the Commonwealth that has just recently been enacted. I am not sure what really came out in the end of your response to Justice Hayne's questions about the view of the Solicitor-General of the Commonwealth on operational consistency. If you might consider that some more perhaps in writing.

MR BASTEN: Yes, we do not accept it, your Honours, is the short answer, unless it is the creation of an interest by the Crown.

HAYNE J: Two other matters to which you might give attention in your writing. First, in paragraph 11.6 of your reply you say that certain issues were not litigated in this case. Can that proposition stand with the requirements of 225(c) and (d)? That is, given the obligation under 225(c) and (d) to note other interests, are not all issues in debate? That is a matter that I would be assisted by your comments on. Secondly, paragraph 15.3 and the omission of words "or operation" seems to me, at least at first sight, not to be an accurate identification of the way in which the Western Australian legislation operates. So I would be assisted by some further elucidation of the point you there make.

GLEESON CJ: Thank you, Mr Basten.

MR BASTEN: Thank you, your Honours.

GLEESON CJ: Mr Solicitor for Western Australia.

MR McINTYRE: Your Honours, I had an agreement with Mr Basten that he leave me two and a half minutes; I think it will take one.

GLEESON CJ: Yes, Mr McIntyre.

MR McINTYRE: We have prepared some written submissions, your Honours, which have been provided. There is only one matter I would wish to draw your attention to orally. It is dealt with in the first few paragraphs. That is, for the State of Western Australia there was some attack put on Justice Lee's extinguishment analysis and his use of the concept of adverse dominion. Your Honours may have taken the opportunity to read his Honour Justice North's decision below, in which he gives a detailed analysis of how Justice Lee did conceptualise the matter. We say that one can see that Justice Lee, in fact, followed essentially the three-pronged test which his Honour Chief Justice Brennan used in Wik, and that the criticism is overly harsh. Thank you, your Honours.

GLEESON CJ: Thank you. Yes, Mr Solicitor.

MR MEADOWS: May it please the Court, my learned friend Mr Pullin will reply on behalf of the State of Western Australia.

GLEESON CJ: Yes, Mr Pullin. You have 90 minutes and we are going to sit until 1 and adjourn then until 2.

MR PULLIN: Yes, thank you, your Honour. Your Honours, I handed up this morning four documents and I just want to make sure that they all reached members of the Court. There is a list of all the documents that we have handed up during the course of these proceedings so that one can keep track of them all. There is an analysis of the Wik decision which has been referred to. There is a substitution of tab J in our original submissions, which is a list of the reserves, and I will mention why we have done that, and a final document which the Court may find of some assistance, which I will go to towards the end of my submissions, about a practical way that this Court might approach the writing of the judgment given the mass of materials that have been put before it. I will come to that later.

But I wanted to start with the application of the Titles Validation Act first. There were some submissions we put in the other day entitled "Western Australia's Submissions Concerning: (1) The Application of Part 2B of the Titles Validation Act (WA); and (2) The Nature of an Appeal to the Full Court", which I want to take the Court to. While that is being found for you, we deal with what was intended by the Commonwealth legislation, that is the Native Title Act 1969 , before one gets to the State legislation which, of course, was authorised by the Native Title Act.

We touch on this subject in relation to this subject of extinguishment in the past, that is, say before 1975. In fact, some extinguishment even after that date can be covered by what we say on this. We say that the determination of native title under section 225 will be made if it is recognised by the common law of Australia and that if native title is extinguished, say, in 1890, then the common law will not recognise it in a determination to be made today. So that is our starting point.

We say, secondly, that one gleans from a number of sources the fact that the Commonwealth did not intend to affect any extinguishment where that had already occurred, that Division 2B was entirely concerned in those circumstances with confirmation of past extinguishment and we have set out all of the reasons for that, not the least of which is the fact that the compensation provision contemplates that there will be no compensation if there has been extinguishment by some other means.

Now, I noticed that the Commonwealth, in talking about what the Full Court had done, it just said the court erred by not applying Division 2B or Part 2B, as it became in the State legislation and, of course, it is not possible just to say that without actually looking to see how it might have applied or not applied and we say there are only three circumstances in which it might be argued that Part 2B could apply. The first is in relation to pastoral leases, and here I am talking about pastoral leases under section 90 of the Land Act or its predecessors, and we cover that in paragraph 6 of this material, and we say quite clearly the definition of "relevant act" in the State legislation only bites if the lease concerned was still in force on 23 December 1996. None of the pastoral leases were still on foot, so, therefore, the Act does not bite at all in relation to those pastoral leases.

In relation to the public works, that is, the Ord Project, there is a provision that deals with public works, but we say that the setting out or marking out of the Ord Project occurred in the 1960s and the construction commenced in the 1960s. If that is so and our submissions about how extinguishment occurs in relation to major public works, then there was extinguishment in the past and the Act, once again, does not bite, other than to confirm that that common law extinguishment was effective to extinguish native title. Only if you disagreed with that, would you need to go to the Act and then the Act does work an extinguishment by reference to its provisions, and then provides for compensation in those circumstances.

We say that there would be nothing more for the court to do, and so there is no need to remit it because the court has made all of the findings of fact which would allow the application of the provisions of the Titles Validation Act.

GLEESON CJ: But even if you were right in what you have said so far, a decision as to whether the extinguishment in relation to the public works was effected by the statute or other than under the statute would be very important in terms of quests of compensation, would it not?

MR PULLIN: Well, it is in the sense that if our arguments about the way the common law test works and the fact that works commenced in 1960 and that is enough to bring about extinguishment for the Ord Project, then there is common law extinguishment, there is confirmation under the Act, and there is no compensation. If we are wrong about that, then one has to go to the application of the Act itself because all of my arguments are rejected, then one goes to the Act, sees that there is an extinguishment and there is a right of compensation.

GAUDRON J: When you say the works commenced in 1966, you are aggregating all the works into one, are you? Have we got the factual findings, if that be thought not to be the correct approach?

MR PULLIN: Well, if it is not the correct approach, remembering that the Titles Validation Act, your Honour, then actually says that extinguishment occurs when the work commences, I think is the expression under the Act.

GAUDRON J: Yes.

MR PULLIN: So, on any test, the works certainly commenced - in fact, it was all finished, the dam was built and the lakes were created and the power stations were created. I mean we are a long way past the commencement which is referred to in the Act if one is looking at extinguishment under the Act itself.

HAYNE J: Now, do you say there are sufficient findings of fact to tell us whether the use of adjacent land or waters is or was necessary for or incidental to the construction, establishment or operation of the work if the work, relevantly, is earthworks?

MR PULLIN: Yes, your Honour, we say that the passages that have been referred to in the judgment deal with those issues and can be applied whether one is looking at common law extinguishment or extinguishment under the Act itself.

GLEESON CJ: Is there some date by reference to which we can say after that date, everything that is there now was there then and no relevant works were done, except for maintenance and repairs?

MR PULLIN: Probably the power station was the last, I think. The hydroelectric works would have been the last of the series of major steps that were taken. I forget when that was. About 1994 as we understand it. That is a fairly recent final step. The building of the main dam is something that occurred in the 1960s; the diversion dam was 1960s; the creation of the township was in the 1960s, and all of the creation of the drainage channels and so on, except for Packsaddle, which occurred in 1972 and 1975.

GUMMOW J: Is there any Commonwealth legislation which affected this project?

MR PULLIN: Yes, your Honour. There was some funding. The Commonwealth government considered this was an important public work.

GUMMOW J: Yes.

MR PULLIN: We have referred to it in the materials in answer to Justice Callinan's question. That is where you might have seen the reference to it.

GUMMOW J: No, you put that before. I was just wondering if that was where I could find it particularised.

MR PULLIN: It was entirely funding for the project

KIRBY J: That also was back in the 1960s?

MR PULLIN: I would need to check. It is in Justice Callinan's - the material. I just cannot recall the date, your Honour. 1968.

GUMMOW J: But that would have had a definition of what the money was being spent on hopefully?

MR PULLIN: Yes.

GUMMOW J: By what criteria was it defined?

MR PULLIN: I cannot remember, your Honour, but we will look at it over lunchtime. They were the submissions we made and if all of our submissions are correct that the Act does not bit anywhere - in fact, I have not referred to the last area where there may be said to be some applications. The only area where the might be some argument is in relation to the Crosswalk lease which we cover under paragraph 17 through to 20 and you will remember that Crosswalk lease is not a pastoral lease under the Western Australia legislation but it is a pastoral lease under the Native Title Act and we have given the references in paragraph 17.

You will remember that the Full Court held that the Crosswalk lease did not extinguish all native title and we rather think they slipped - they tended to apply once, and probably once only, the Justice Lee approach about what actually happened on the land. The ball was dropped at that point. Instead of staying with the test that they had set themselves, based on the High Court authorities, they seemed to have looked at what actually happened. That is a subject of challenge, of course, but we say, in any event, there are other earlier grants of leases which are referred to in the Crosswalk submissions. You will remember they listed the tables of the tenure before the Crosswalk lease.

One of our grounds of appeal is in relation to an earlier grant which we call the Ivanhoe lease and I should just mention where you will find that. I will need to come to it afterwards and just give you the references to it. It is around paragraph [641]. One of our grounds of appeal covers that lease. Could I just mention that now because we want to abandon one part of the ground that is in volume 5 of the appeal book, page 926. Ground 2.3. Ground 2.3 identified two leases.

GLEESON CJ: You have already abandoned the second one.

MR PULLIN: Yes, in case that was not clear, we have abandoned that one. The details regarding the Ivanhoe Grazing Company lease which was the one granted immediately before the Crosswalk one - if you would like to put a note against it - paragraph 637 of the Full Court's reasons for decision deals with that Ivanhoe Grazing Company lease. We say that one would have extinguished native title, so, in a sense, you do not need to get to Crosswalk, but if some reasons are thought that that did not extinguish and you do get to the Crosswalk lease then if the present decision of the Full Court remains then one might have to get into the Titles Validation Act and we have set out in paragraph 19 how it would apply.

It is only in that respect, throughout the whole decision that the Titles Validation Act has any application at all and that is only if you find that the Ivanhoe lease did not extinguished. If you agree that the Ivanhoe lease extinguished then no question of the Titles Validation Act comes up at all, therefore there is no need to consider the nature of the appeal to the Full Court about whether it is rehearing or a stricto sensu appeal, and we have made some submissions on the subject, in any event, for some assistance.

We note that in CDJ there was no reference to the line of the Full Court of the Federal Court about the nature of an appeal. It was not touched upon. it was just a passing reference to the Federal Court provision which prompted the court to say that appeals to the Family Court were appeals by way of rehearing.

GUMMOW J: The Ivanhoe lease is 1977. Is that after the Racial Discrimination Act?

MR PULLIN: Well, in fact, it was first granted in 1966 and the documentation was dated 1977 but I think there is a reference to the fact that it was first granted in 1966 which is why we chose it as an earlier grant.

GUMMOW J: Yes. What is said at paragraph [637] is a little elliptical. I see what you say.

MR PULLIN: Yes. It does refer to the lease was for one year commencing 1 October 1966 and then renewable. So, they are all the submissions, your Honours, concerning the Titles Validation Act.

Could I then go to the Ord Project and make some submissions in reply to what Mr Barker was saying about the Ord Project. We would adopt what Justice Gaudron put to Mr Barker this morning. That, in reality, on this test that Mr Barker has now articulated as a result of Justice Hayne's question last night, that is, what is the test for extinguishment in these circumstances, Justice Gaudron said, " Well, it is really the same test as the Full Court applied, and your real compliant is just about the application of that test to the facts in this case." We have long complained about that.

Our original submissions referred to the way there was an attempt to have the High Court scrutinise all the evidence and reach a conclusion which is different from the decision of the Full Court. Now, the Full Court considered all the evidence, reached its decision, stated its findings, and no one has challenged them. There is an attempt via the submissions to challenge those findings without any ground of appeal which would never have gained a grant of special leave. So that is the first point we make about it.

The second is the application of this test, which is that you actually look at the use, because this is really a qualification of what is said in writing, that is, that you actually look at what happened on the ground. That is, the actual use, is really going back to the adverse dominion theory that Justice Lee adopted from Canada. You actually see what happens on the ground, and it would - it is shown up by way of example in page 609 of Justice Lee's judgment in relation to the quarantine station. If you go to page 609 you will see that his Honour there deals under the heading "Quarantine Checkpoint" and you see that it was an area of land 45.4 hectares in size. It is the checkpoint that when one drives across the border from the Northern Territory into Western Australia right at that point there is a quarantine station where one has to hand in one's fruit coming into Western Australia and that kind of thing. There is a building where the person comes out and sees the car through or waves it through. There is a set of ablution blocks, a parking area, a power generator, fuel and water tanks, a tourist information shelter and a shed, and they occupy a minor part of the reserve. His Honour Justice Lee held that there was extinguishment around these items but not over the rest of the reserve so that one then wonders how you get from the building to the ablution block. One assumes there would have to be extinguishment on a track across to that point.

This kind of decision allows native title rights, including digging for ochre, right up to the walls of the buildings. It is unworkable, in my submission, that kind of solution, and the Full Court considered that this was wrong, and, at paragraph [489] - - -

GAUDRON J: Is this a matter to which Division 2B, Part 2B, may have application?

MR PULLIN: Not that I can see, your Honour.

GAUDRON J: The reserve was created in 1993.

MR PULLIN: Yes, but - - -

GAUDRON J: What is your ground of appeal relating to this one?

MR PULLIN: This is to do with the argument really by the other side, by the Ward appellants about the reinstatement of the adverse dominion test, which includes looking at the actual use. This is not a question about Part 2B. The Full Court at [489] just summarised the circumstances of this particular quarantine checkpoint in exactly the same terms. Of course, we have arguments that the vesting of the reserve and the creation of the reserve extinguished in any event, but overall, of course, what the Full Court did was report all of these and then say but in any event the Ord Project extinguished over all of this area in any event. But they said, for good measure, at [490]:

In our opinion extinguishment is not confined to the small areas actually covered by the facilities that have been erected, but extends to the whole reserve.

So they were dealing with what I have called another layer of extinguishment, in case they were wrong about the Ord Project extinguishing, because this is within the Ord Project Area.

GLEESON CJ: Is that a convenient time? - - -

MR PULLIN: It is not in fact. It is outside the Ord Project area. So that is not a layer, it is a primary finding of extinguishment. Yes, it is a convenient time.

GLEESON CJ: That is outside the Ord Project Area?

MR PULLIN: Yes.

GAUDRON J: So there is a ground of appeal that goes to this issue, is there, or not?

GLEESON CJ: It would not be your ground of appeal.

MR PULLIN: It is not one of ours. I have used it by way of example. I do not know whether the other side - they certainly do not specifically identify it, but one of their grounds, their general grounds, talks generally about the grant in creation of reserves.

GUMMOW J: I do not think they granted leave about the quarantine checkpoint.

MR PULLIN: No, they did not. That is another one of these problems that we have complained about. It has crept back in to the general grounds as - - -

GAUDRON J: I had not heard of it at all until you raised it.

MR PULLIN: It is within the Ord Project Area; in fact, we have just checked.

KIRBY J: It is or is not?

MR PULLIN: It is.

GLEESON CJ: It is another layer of extinguishment.

MR PULLIN: Yes, it is.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ: Yes, Mr Pullin.

MR PULLIN: Thank you, your Honour. Your Honours, could I just say for, I think, the third time, the status of the quarantine station land. It is Reserve 42710. It is within the Ord Project Area, so that the court was really deciding that aspect in addition to its decision about the whole of the Ord Project. Just going back to the history, because Justice Gummow mentioned what had happened on the special leave application, in the draft grounds of appeal before the Court on the special leave application, ground 24 specifically sought special leave to challenge the decision of the Full Court in relation to that reserve, and it was mentioned, 42710.

Leave was refused in relation to that ground and yet it has been redrafted into grounds 3, 4 and 5 which, as we say, happened in relation to a number of matters where leave was refused. But we have handed up a package of material which analyses the grant of leave and what leave was granted for and what leave was refused for. It comes up, if it is permitted to proceed in that way, that is for the appellant to challenge, we, of course, then say, "Well, the Ord Project extinguished in relation to that land. It was just part of the whole Ord Project.".

If that is not upheld, then we have a contention, ground 8, which puts up reserves, and our tab J is the tab which lists all of the reserves within the Ord Project Area, and one of them is the quarantine station. When we get to the way of proceeding to judgment, there is a solution that I am going to offer, at least, for what its worth, to help the Court through all of this mass of material.

In relation to the buffer zone, that was the only ground that was allowed through on the special leave application. There were, in fact, three grounds seeking to challenge the findings of the Full Court that the Ord Project Area extinguished native title in the whole of the project area. They were grounds 17(b), (c) and (d). Leave was refused on all of those and then 17(e), which is the buffer zone ground, which is ground 10 now, was allowed through. Now, I have gained the impression at different times that the Court may think that this is just some small area, perhaps the cerise area, but we sought particulars of what it was that the appellants were actually saying and having obtained the particulars, we then mapped it.

GLEESON CJ: You have already told us this.

MR PULLIN: All right, your Honour.

GLEESON CJ: You pointed out to us that it was - - -

MR PULLIN: Yes, all right. Well, there is tab C which, in fact, shows that really it is the whole Ord Project Area that is being now attacked under the guise of ground 10.

Now, if I could next go to the Wik analysis and just briefly mention this summary that we have prepared. It is probably obvious what we have done. We have put the three judges in the minority together at the beginning, which is the conclusion that pastoral leases in the case conferred the right of exclusive possession on the lessee, and that is the Chief Justice and Justices Dawson and McHugh.

GLEESON CJ: What are those symbols above the numbers? They look like ticks.

MR PULLIN: Yes, that is where that point was stated. The only reason we have done it is because in relation to one of the items - in Justice Kirby's column, for example, the fact that there was a provision which vested the interest on grant rather than upon entry was a point that Justice Gaudron has referred to and Justice Kirby dismissed as a factor.

CALLINAN J: Mr Pullin, another factor, certainly referred to by her Honour Justice Gaudron as indicative of an imputed intention, and, I think, also by Justice Kirby, and perhaps others, was the magnitude of the areas involved. The vastness, I think her Honour Justice Gaudron said. That is at page 154, but there may be other references - - -

MR PULLIN: That is on the list. It is about the fourth item down - you will see the tick.

CALLINAN J: Yes. I do not know whether that is the only reference.

MR PULLIN: No. It is a bit difficult, because the way the majority proceeded was not to say: we have to determine whether or not a pastoral lease confers the right of exclusive possession and here are the reasons why the particular judge considered that that was not so. There are factors mentioned that may or may not be part of the reasoning - sometimes, it is just part of the history, but we have tried to put in all of them, and I am sure it is likely there is a mistake or two, in all of this.

CALLINAN J: That is why I invited your opponents to make any additions or corrections.

MR PULLIN: Yes. Now, down the bottom of course, the principle was not in dispute, we say. That is right at the bottom. Everyone, we say, agreed that if pastoral leases were leases conferring exclusive possession then all native title would have been extinguished. It is expressly stated by the Chief Justice and Justices Gaudron and McHugh, of course, and expressly stated by Justice Gaudron at 135 and by Justice Gummow at 176.

We say it is implicit in the whole process of reasoning in the other two judgments, because that was what was going on. Now we do not challenge, of course, the result in the Wik decision. The reasoning may be - well it is, perfectly right, while the judgment stands, in relation to Queensland pastoral leases, but as you know what we do is to say that the reasoning, or the factors that have been mentioned, are not factors which can be applied in Western Australia, and we have given the reasons for that being so and we just mention what Justice Brennan said in Mabo at page 45 warning about the danger of:

fracturing the skeleton which gives our land law its shape and consistency.

And an example of how that would be so, if the reasoning in Wik were applied in Western Australia comes up, for example, in relation to that reason that was stated by at least Justice Gaudron - in fact I thought Justice Gummow, but it is not showing up here - that the making of the grant vested the interest rather than the entry into possession, which is not the common law position, of course; it was a factor leading to the conclusion that it was not a lease. The trouble with that is that exactly the same provision is found in our Land Act, which is section 7 of our Land Act, and if that reasoning were applied - section 7 actually reads 7(2):

All grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate made in accordance with this Act shall be valid and effectual in law to transfer to and vest in possession in the purchasers the land described in such grants -

Now, as we understand it, that is a provision to get rid of the need for livery of seisin and any process of that kind and if it be held that pastoral leases are not pastoral leases because of the existence of that provision, then fee simple is not fee simple - - -

GAUDRON J: No, that does not follow at all. Its relevance is because, at common law, you need an entry for the estate to vest or the leasehold to estate to vest.

MR PULLIN: The same with fee simple though, your Honour. Livery of seisin was an important aspect.

GAUDRON J: Do you not have a Real Property Act equivalent now?

MR PULLIN: Yes, but that was the same in Queensland. The Property Law Act dealt with interesse termini and disposed of it as a doctrine. Queensland had it, we had it, but we are talking here about grants that have taken place since 1933 in this case. So, if it be the case that the fact that the grant vests in possession upon grant and that is an indication that it is not a common law lease, that is the pastoral lease, then the same reasoning has to be applied in relation to fee simple.

GUMMOW J: Not really, because with leases you are talking about an estate in reversion; a fee simple you are not.

MR PULLIN: It is the grant of the term of years that we are concerned with, your Honour, in relation to 7. We are not concerned there with the creation of the reversionary interest. We are simply concerned with the grant of the leasehold estate.

GAUDRON J: But your argument must entail the conclusion, must it not, that there is a reversion in possession in the case of Western Australian pastoral leases?

MR PULLIN: Because they are leases. The definition is that a pastoral lease is a lease. It has all kinds of dangerous aspects to it.

GAUDRON J: But you do say that there was a reversionary interest in the Crown?

MR PULLIN: Yes, and if this provision says that there was no reversion - - -

GAUDRON J: And this notwithstanding the provisions which said they - I think that is right - in your Act that on forfeiture, termination and - - -

GUMMOW J: The Minister has to do something.

MR PULLIN: I am sorry, your Honour?

GUMMOW J: On forfeiture there has to be some extra step because there is a reversion. It postulates that without it there is not.

MR PULLIN: Yes, but I am just staying, your Honours, with section 7. If the reasoning is that section 7 means that there is no reversionary estate - and with respect, I cannot see it, myself, in the section.

GAUDRON J: No. One has to look at the definition of Crown lands, as I recollect the structure of your Act.

MR PULLIN: Well, not in relation to section 7,your Honour. The position is that if it be true that this makes a pastoral lease not a lease, then it means that other leases are not leases. Now, that is going to cause a fair bit of damage in Western Australia and it will cause damage in all sorts of unseen ways. We came across one last night in the Mining Act 1968 . The whole scope of the Mining Act is to allow for mining on Crown lands and there is also mining permitted on private lands, in certain circumstances.

GAUDRON J: But one of the consequences of your submission may be that on termination, for whatever reason, of a pastoral lease it is no longer Crown land, within the definition.

MR PULLIN: I am not sure what the point is, your Honour, in relation to 7.

GAUDRON J: It is to do with the estate in reversion.

MR PULLIN: But if that comes from section 7, your Honour, my point is that dealing with that point, if that is a reason put forward in Western Australia, then it is going to fracture the skeleton of our land law in Western Australia and it will have other consequences because we have provisions drafted on the basis that pastoral leases are leases, for example, in the Mining Act, which will suddenly mean that where there is no compensation for pastoral leases, where there is a mining interest granted in relation to pastoral leases, if they are not regarded as leases, that it will mean that suddenly they will be entitled to compensation under the provisions relating to private land if they are shifted across from leases to non-leases. I am just saying that there are all sorts of other provisions. It cannot just be dealt with - - -

GAUDRON J: For my part, I do not follow that. The Mining Act refers to pastoral leases?

MR PULLIN: Yes.

GAUDRON J: Well, that is whatever - - -

MR PULLIN: No, in fact, it does not, it refers to leases for pastoral purposes, and that is exactly what the definition of pastoral lease is in this Act. It is just a lease for - it is the same as, you might say, a shopping centre lease, or a tavern lease, or a residential lease.

GAUDRON J: Well, you say so, but, at best, it is a statutory - well, it is a statutory lease to start with.

MR PULLIN: They are all statutory leases, your Honour.

GAUDRON J: That is right, and then you take it from there to see what else is involved.

MR PULLIN: Yes. The only other matter which seemed to attract the attention of at least three Judges, was this point about section 204 in Queensland. That was a provision that you may remember created - made it an offence to trespass on land and also created rights of recovery. It was argued, I think, or the reasoning was, in Wik, and the three Judges who dealt with it said, "Well, if there was a right at common law to bring ejectment proceedings, then there would have been no need for that".

We do not have a provision like section 204. We have a section 164 which provides for the creation of an offence, just as it is an offence for someone to go on to any of our own house properties, but it does not confer any right of civil recovery. So, therefore, the only way that there could be any protection would be to go to the common law doctrines and the action of ejectment.

GUMMOW J: That offence, I suppose, would be construed in accordance with Cain v Doyle, I think it is, as not applying to officers of the State, would it not? They would not be committing an offence.

MR PULLIN: I cannot remember, your Honour, but - - -

McHUGH J: No, I think Cain v Doyle holds that they did commit an offence, does it not? It is just the Commonwealth does not commit the offence.

MR PULLIN: Sorry, your Honour.

McHUGH J: Cain v Doyle holds that the officers do commit the offence, it is the Commonwealth.

GUMMOW J: Not the State.

MR PULLIN: I am not sure, in relation to this particular provision, but there is a reservation, there are certain rights reserved which would give officers rights to go on to the property. I am reminded that section 164 makes it an offence if one is unauthorised in the entry.

GAUDRON J: Unlawful and unauthorised, is it not?

MR PULLIN: Or unauthorised.

GAUDRON J: Or unauthorised. I think there was a submission that they had to be read as conjunctive.

MR PULLIN: Well, the section is 164. I just cannot recall what it says, your Honour.

GAUDRON J: Unlawful or unauthorised, and then I think there was a concession in the course of argument that that must mean unlawful and unauthorised.

MR PULLIN: Yes, the actual words are "a person shall not without lawful authority" do certain things.

Just one other thing I am reminded is section 7, if the reasoning is that because there is a statute which provides for the grant of a pastoral lease that is somehow different from common law, well fee simple is mentioned there as well. That reasoning would apply equally to fee simple.

So, your Honours, without going through all of these points, we have addressed them in our submissions and we indicate that the reasoning that applies in Wik is not applicable in Western Australia. The teaming array of new tenures was another factor that was mentioned, and I have analysed and dealt with that in my earlier submissions. There were only, I think, four types of tenure in our Land Act.

Now, I just wanted to go back to that point about Justice Callinan's question and the answer that we gave in writing and Justice Gummow's question about the Commonwealth Act. The Western Australia Agreement (Ord River Irrigation) Act, the Commonwealth Act, provided for funding for the works described in a schedule and the schedule is pretty well all of the works that we have in the Ord Project in this case. So, certainly as between the two, the Commonwealth and the State, it was regarded between those two as a project to be funded and, generally speaking, it corresponds with all of the works that have been done within the Ord Project Area.

Also, I wanted to deal with the answer that has been given in answer to Justice Callinan's question. There are a couple of additional pieces of information. Justice Callinan wanted to know whether the project is administered by a board or not, and we have said there was not a board. We also wanted to mention that in volume 8 of the Western Australian legislation in the Rights in Water and Irrigation Act 1933 , section 3 allows the Minister to:

exercise, within any District, all the powers and authorities -

of -

a Board -

(a) until the constitution of a Board -

and that is at page 2178. Then at 2226, the regulations made under the Rights in Water and Irrigation Act for the Ord Irrigation District defines the Minister as:

the Minister for Water Supply, Sewerage and Drainage -

and then, in effect, gives the Minister all the powers to control the use of water within the Ord Irrigation District. So he is the one who actually issues licences and gives permission for the use of water and irrigation rates and the like. That can be seen 2226, through to 2231. That is probably all I need to refer to on that subject.

I wanted to mention briefly section 223 of the Native Title Act which has been the subject of some discussion and add a comment that may assist. The drafting, in my submission, has produced the situation where, in section 223(1) in reality, what we have is a general statement contained in the introduction and then particulars of what has to be shown. Now, I know that is not exactly how it reads, but if you start out:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of the Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where -

and then read (a), (b) and (c) as the three requirements, one does not have that apparent repetition that your Honour the Chief Justice was pointing out about the reference to rights and interests in the introduction and then connection in (b).

Now, it is just a suggested interpretation. The drafting of this whole Act is extremely difficult, and it is a style that seems to be popular with the Commonwealth draftsmen. Cato used to say at the end of speeches in the Senate that Carthage should be destroyed, no matter what the subject being talked about. Perhaps, judgments of the High Court could end with a similar chant. But the Act is filled with difficult concepts - - -

GUMMOW J: Parliamentary council had a difficult and urgent task.

MR PULLIN: Now, that is a suggestion for that section and, for what it is worth, I put that forward. The only other reference I wanted to make was the use of the word "traditional," and Justice McHugh gave the example of something that might have arisen of some use that started to develop 20 years ago. We say the word "traditional," of course, is based on tradition and tradition is handed down from generation to generation. So one needs to get some longevity about it all, and we know from Mabo that that longevity needs to take us back to sovereignty, which in this case one can assume that things were pretty well unaltered from the period between 1829 and 1880 when people turned up, Europeans turned up, and so we are talking about, at the most, four generations, if one allows 30 years as a generation. We have people who are able to talk about the 1940s, so we easily got back to people who were talking about the way they lived in the 1940s. So we were not far off the 1880s, which is when Europeans first arrived.

Now, we have handed up a new tab J for our submissions, which are the corrected list of reserves, and there are only two other matters that I want to deal with before I go to our suggested way of proceeding. One is in relation to the section about the reservation in favour of Aborigines; that is section 106.

The provision, we say, is just the same as the example that I think your Honour the Chief Justice gave, which is a statute that gives, say, the gas man the right to have access to someone's property, and if it provided that the gas man could have access to a residential property providing it is not fenced, then it is exactly the same type of provision. So, in other words, one starts with the Full Court's analysis which is the pastoral lease is a lease, it does confer exclusive possession, but there is simply a right in Aboriginal people to have access, and when the fencing takes place, the rights that they have no longer exist, the fencing or improvement.

GAUDRON J: What was the drafting - the conveyance in drafting practice with respect to the use of the word "reserving"? I thought in traditional conveyancing terms it was usually meant to signify something that had existed prior to the grant or demise being drafted.

MR PULLIN: Well, your Honour is referring to two expressions, exception and reservation.

GAUDRON J: Yes, but - - -

MR PULLIN: I think reservation meant the holding back of something that previously existed.

GAUDRON J: That already existed, yes.

MR PULLIN: Whereas, reservation was the creation of some new right.

GLEESON CJ: Exception.

MR PULLIN: Exception is the holding back of some existing right and reservation was really the creation of some new right.

GLEESON CJ: We saw an example in a document that was handed up this morning of a fairly miscellaneous set of things called reservations.

MR PULLIN: Yes. It is quite clear when you read any text on it that the use of the phrase is not adhered to. One will see something that is an exception referred to as a reservation, and vice versa.

GAUDRON J: When, for example, there is a reservation of all minerals, you say that is the creating of a new right in the Crown to the minerals?

MR PULLIN: It should have been described as an exception. If there had been already a vesting of property in the minerals by some legislation, then if there is a reference to no right to minerals, it should, strictly speaking, in our view, be referred to as an exception. But, as I say, one can see these words being interchanged.

In relation to spiritual connection, Mr Barker made some submissions about this. Your Honours may remember that he took the Court to Justice Lee's judgment. The phrase, in answer to Justice Gaudron's question, in pastoral leases, I am just looking at one in - it actually says "accepted and reserved to us".

HAYNE J: Not only counsel in a belt, braces and a piece of string around the waist, Mr Pullin.

GAUDRON J: Could I just take you back. Assuming you are right that it was the creation of new rights - - -

MR PULLIN: We are not arguing for that, your Honour, but assume that that is the case. I accept that.

GAUDRON J: - - - what then do you say about section 223(3), (3A) and (4)?

MR PULLIN: I understand (4) clearly enough, your Honour, but subsection (3) does not apply to rights and interests created by a reservation and one has to decide whether the transfer of use - - -

GAUDRON J: And which are not native title rights and interests.

MR PULLIN: Yes, so, given that this - - -

GAUDRON J: But subsection (3) seems to define them as native title rights and interests.

MR PULLIN: I am not sure what Part 2, Division 3Q of the Act deals with, your Honour, I must confess, without going to it. If one can read the heading, it does not apply to statutory access rights, and if that is a reference to something like section 106 - - -

GAUDRON J: Subsection (3) seems to be predicated on the compulsory conversion into or replacement by.

MR PULLIN: Yes, I agree with that, your Honour, but whether or not, when one traces through Part 2, Division 3Q, one ends up with the result in (3), I am afraid I am just not certain.

GAUDRON J: Your 106 is a statutory right.

MR PULLIN: Yes.

GAUDRON J: Notwithstanding that there are, as well, in some pastoral leases, reservations in the lease.

MR PULLIN: Up until 1933, there was no statutory access right until 1934, and one found what I will call the reservation or exception in the lease instrument.

GAUDRON J: Yes. But subsection (3) would then seem to - if you are right about section 106 creating new rights of its own force, it would seem to fall within subsection (3), would it?

MR PULLIN: Yes. It says if the native title rights and interests:

have been at any time in the past, compulsorily converted into, or replaced by, the statutory rights and interests in relation to the same land or waters -

then they are -

covered by the expression native title or native title rights and interests.

But only, obviously, to the extent of the statutory provision. So, if the statutory provision says that one has the right to go into unenclosed and unimproved land for subsistence purposes, then that is the case, but if there is an enclosure, of course, there is no longer that right.

GLEESON CJ: Mr Basten handed us, this morning, a pastoral lease of the Northern Territory executed in 1958, which contained a reservation to the lessor of (a) a right of entry and inspection - that is a new right; (b) all minerals - that is not a new right; (c) a power of resumption - that is a new right; (d) all timber - that is not a new right. And then went on to refer, by using a different formula, to "a" reservation in favour of the Aboriginal inhabitants.

MR PULLIN: Yes. Really, when one looks at the text, one sees that there is a recognition that reservation and exception, and their original meanings, have not been adhered to. And it looks as though here, we have seen in the West Australian one, there is a reference to rights as both exceptions and reservations, just to make sure that if someone tries to classify them, the right word has been used.

Your Honours, in relation to the spiritual connection point, Mr Barker went to Justice Lee's judgment at 511 and pointed out that there was - in fact, what he said was the northern part was said to be Gajerrong. He does not say who it was said to be, so maybe "claimed" to be. Then, at 534, he said there was - I had better go to 534 - at line 35, he referred to Dodger Carlton and others who spoke different languages, and that, according to him:

an area along the north of the Ord River as it enters the Gulf above Goose Hill and Wyndham.

That was their country. That is just an assertion, so one is looking for some exercise of rights in relation to that, to establish native title rights and interests, and all that his Honour did at 550 was to say, "I am satisfied that it is Gajerrong country". So he does not go into any of the evidence of what actually happened.

The Full Court did, and it actually described, at paragraph [253] - the Full Court actually went to the evidence, and it was here that they said: look, there is historical evidence, not just the assertions by Dodger Carlton. And there is a reference to the Kaberry genealogies, which were prepared back in the 1930s or thereabouts, and others, and some identification of oral histories and the like, but that, of any recent occupation - that is, really, I suppose, apart from the Dreaming stories, which are listed, there is probably nothing for more than 50 years, probably more - but the only evidence that was actually given of anyone ever going to the Island was Dodger Carlton.

GLEESON CJ: You are going to tell us again that he went on a helicopter, are you?

MR PULLIN: That is the one, your Honour.

GLEESON CJ: We got that point earlier.

MR PULLIN: I only mention it, your Honour, because the argument is that there was some evidence of connection. There was not evidence of any physical occupation or use or presence on Lacrosse Island and so the issue is therefore identified very clearly in this case, which requires resolution, and the Court said at 253 and 252 that spiritual connection was enough. That is what we say in answer to the points that were made by Mr Barker. There is one other point before I finish, and that is that the suggestion that there be a determination of possession and the right to exclude others - as a result of the discussion with Mr Barker this morning it became evident that he was talking about the rights as between Aboriginal people to exclude others, not everybody, because I have already referred to the history and the findings of the trial judge which made it clear that the Europeans were certainly not excluded from these lands and never have been for 120 years.

There is a potential problem with a direction or a determination that there is a right to exclude others, even if it is directed to other Aboriginal people because surely Aboriginal people wanting to drive into Kununurra, which goes through this claim area, if there be a determination, do not have to get permission in order to go into Kununurra. It creates that kind of problem which says they have the right to exclude others. Even if it is confined to Aboriginal people there is a modern-day problem associated with it and maybe the common law would not recognise that kind of claim in relation to an area like this where people live in the town who are not Miriuwung or Gajerrong people who are faced with a determination and are told, "You cannot come in". Even if it applies only between Aboriginal people. There is a potential problem with that kind of determination.

That is the problem and why we have raised an appeal ground about possession and the fact that that appears in the determination. If I could then go finally to this suggested way of proceeding.

GLEESON CJ: Where in this document do you deal with the question of whether the Full Court was correct when it said the Ord Project extinguished native title?

MR PULLIN: I am just locating my copy, your Honour. Your Honour, we deal with that, first with 3 about deciding whether or not there should be a revocation of special leave.

GLEESON CJ: I understand your arguments about whether or not they ought to be permitted to argue that.

MR PULLIN: Yes.

GLEESON CJ: But it might be thought that if we were against you and we would hold that they were permitted, that is, the Ward appellants, for example, to say that the Full Court was wrong to hold that, that is an argument that could be given a certain degree of priority in any order of consideration of these things.

MR PULLIN: Yes. Well, we say, your Honour, that - I mean, obviously your Honours will have to decide that issue, but if it goes - - -

GLEESON CJ: But I was just asking, where have you got us deciding that issue in this order of things?

MR PULLIN: Well, that would be decided in 3, at that point. If the decision was not to revoke special leave and the buffer zone argument was dealt with, then you would have to deal with that at that stage and then we say, regardless of that decision, the Court will still have to decide the points which are set out in 5, that is 5, deal with the nature of native title rights and interests, the principles of extinguishment, exclusive possession point, the spiritual connection point, which is tied up with occupation of Lacrosse Island by way of example - - -

GLEESON CJ: Can you just explain why we would have to decide all the issues under question 6?

MR PULLIN: Yes, your Honour, because it might not have been detected, but we very carefully chose subjects that would raise these issues, even if the Court found that the Full Court was right in relation to the Ord Project. So take, for example - - -

GAUDRON J: Your appeal is really from the orders. If the court was right in relation to the Ord Project, there is not a great deal left that has to be decided, is there?

MR PULLIN: I am afraid there is, your Honour, and 6 sets them out. So just take them one at a time - - -

GAUDRON J: It really is a question of the land that is involved thereafter.

MR PULLIN: Certainly if the Ord Project is held to extinguish, we are left then only with the area of land outside the Ord Project.

GLEESON CJ: That is right.

GAUDRON J: Yes.

GLEESON CJ: But you have got us here deciding theoretical issues, as it were - - -

MR PULLIN: No, your Honour.

GLEESON CJ: Well, they are expressed in that way, whether pastoral leases completely extinguished all native titles. The question we decide is whether pastoral lease XYZ extinguished native title and, on ordinary principles, we would only decide that question if we had not found native title extinguished in respect of the land covered by pastoral lease XYZ for some other reason.

MR PULLIN: I entirely agree with that, your Honour, but there are lots of pastoral leases covering the area outside the Ord Project Area, and that is the subject of Ward grounds of appeal, that they complain about the determination in relation to those areas. So there were pastoral leases and if your Honours go to the last document, this is the - - -

HAYNE J: Well, just before you do, do we see that from this map identifying issues in Western Australian portion of determination area that you handed up? In particular, do we see it in respect of the northern part of the claim area, as, for example, where it is said to be subject to part of pastoral lease 396507 under the Land Act raised by cross-appeal ground 2.3? Is that the way in which these questions are said to arise?

MR PULLIN: I am afraid I will have to get the map, your Honour.

HAYNE J: Do not ask me to repeat it, that is all I ask Mr Pullin.

MR PULLIN: Yes, that is exactly it, your Honour. We have a pastoral lease, two pastoral leases, for example, identified on the plan, which are to the area, you might call at the bottom of the Cambridge Gulf. They are nothing to do with the Ord Project.

GAUDRON J: And they are the subject of your proposed cross-appeal?

MR PULLIN: No, we have identified it. They are the subject of the Ward grounds 4 and 6. Then if you use this sheet - and I agree with your Honour the Chief Justice, this is not just the general statement - we then give you a set of facts which will allow the Court to describe the pastoral lease, and we have given the example on the last page. These are pastoral leases which we identify where you will find them and then it will provide the foundation for the writing of the judgment.

If the Court goes to our first set of submissions, you may remember that we listed all of the pastoral leases within the area. Under tab F we list all of the pastoral leases that have existed over the whole of the claim area. Some of them are within the Ord Project Area and some are outside. Now, the Court cannot possibly write a judgment listing and describing the circumstances of each of these pastoral leases. All they can do - if the Court decided that the Ord Project did extinguish, then we still have some pastoral leases outside and we given an example of a pastoral lease outside of the Ord Project Area which will found the judgment of the Court. Our suggestion is that the Court takes perhaps three pastoral leases - I think we have listed three of them and I believe that they are leases under the 1933 Act, the 1898 Act, and one of the regulations.

GLEESON CJ: You look as though you have listed five, do you not? This is under the heading "Documents"? I am looking at "Facts Relating to Paragraph 6 and 8 of Western Australia's Proposed Way of Proceeding", the last page and under paragraph 6(i), "Item", "pastoral leases", you give examples. Are there not five examples there?

MR PULLIN: I must confess I did not get down to that detail but - - -

CALLINAN J: There are 12 - - -

MR PULLIN: There are three pastoral leases only. There is one under the 1887 regulations, one under the 1898 Act and one under the 1933 Act. So that will raise the enclosure issue in relation to - which is contained by way of reservation or exception within the pastoral lease, and the last one under the 1933 Act will raise the 106 point. So, we say that you only need to consider three pastoral leases. You do not have to go to tab F and then try and write a judgment dealing with all of those.

What we suggest is that once the Court's decision has been written about the pastoral lease and all of these other tenure that we have referred to, the Court would send the parties away to come in with a draft determination based upon these examples which have been chosen. That is the only way that it can be done unless the Court wants to embark upon a judgment which considers every pastoral lease which existed from 1880 through until the time of the claim till pastoral leases were all resumed. It would be an impossible task.

So in relation to leases we selected, a lot of the leases are within the Ord Project Area, so if one has to look at the Ord Project Area and there is a decision that it did extinguish, your Honours will not have to consider all of the leases within the Ord Project Area. But we have carefully selected a lease outside of the Ord Project Area so that there is a High Court authority on the effect of a lease. There is one, the subject of the Crosswalk appeal, and we also take the Ivanhoe, so if the judgment is written in relation to those two, we will have a High Court decision on leases which will guide parties for the future.

The reference to the other leases is a reference to what we have said in 8(v), and I just - - -

GLEESON CJ: You seem to have a different concept of the exercise of judicial power from ours. It does not get qualified in the textbook.

MR PULLIN: Well, it is only a suggestion, your Honour. What happened with the court below is that they came in, in fact, with a draft determination. They did the whole thing, as did Justice Lee, and they came in with a draft determination, but in both cases they were drafts. There could even be a draft in this case, which is simply a matter of sending the parties away; if the parties can not reach agreement, they must come back and the Court will have to do it. If it means that the Court has to consider 50 or 60 pastoral leases, so be it, but I do not anticipate that is going to happen because they are in common form. So in relation to leases, as I say, we have taken an example.

If you take the reserves, we have listed two reserves. They are reserves outside of the Ord Project Area. We identify them and suggest that that be the foundation for the judgment. They were not vested reserves, so they raise the creation of a reserve extinguishing as an issue, and the vested reserves point deals with a reserve which was vested and the effect of that, and whether it extinguishes.

The nature reserves issue are all outside the Ord Project Area. We have identified just two of them. Mirima is outside of the Ord Project Area. Mining leases, we have identified a mining lease outside of the Ord Project Area.

GLEESON CJ: Just remind me, were some of the areas the subject of what you call "other leases" earlier a subject of pastoral leases?

MR PULLIN: Yes.

GLEESON CJ: Now, if we decided that the pastoral leases extinguished native title, we would not be deciding whether the other leases extinguish native title, would we?

MR PULLIN: I am afraid even that is not the answer, your Honour, because if pastoral leases only - well, it depends what your Honours found. If your Honours found that pastoral leases completely extinguished, that would be so.

GLEESON CJ: That is all I was asking. The same applies in relation to these reserves, does it not?

MR PULLIN: We will have to check this, but I understand that the first of the reserves we have indicated has not been the subject of a pastoral lease.

GAUDRON J: All of this will become clear when you file the document that the Chief Justice requested the other day, will it, when you identify all the extinguishing acts in relation to individual pieces of land?

MR PULLIN: Yes. If we take the first item, pastoral leases, we have said all of the pastoral leases that have an extinguishing effect are listed in tab F of our submissions and we give the reference to where each one of them can be found. This Court would do nothing else for a very long time if it tried to deal with every pastoral lease, but if it proceeds in this way it can write a judgment and publish reasons for decision, which is a common practice.

GLEESON CJ: Neither of the courts below has attempted to deal with every pastoral lease, has it?

MR PULLIN: They have not, not every pastoral lease, but they have covered the history of pastoral leases. The Full Court, for example, certainly did not deal with every item of tenure because, for example, in the Ord Project Area they dealt with the Ord Project and some of the other extinguishing events, but outside they had to deal with the extinguishing events. That is why it is rather an incredible work. We only had three weeks before the Full Court and they wrote a judgment that seems to have buried into all of these materials themselves.

KIRBY J: Speaking for myself, I think that your suggestion of species that can be tackled is a sensible one, but has it been discussed with the other parties?

MR PULLIN: We have only produced this this morning. I have spoken to Mr Barker about it very briefly and I got the impression that he - - -

KIRBY J: If they agreed that lease A, B and C were, as it were, the species of the problem that needed to be addressed, then there would be good reason and it might aid expedition if the Court dealt with those and led the consequences to follow.

MR PULLIN: Yes. I have spoken briefly to Mr Basten about it but they have not had the opportunity of finally considering the position, but for my part I cannot see how the Court could proceed otherwise.

GLEESON CJ: Any of the other parties in the time given for putting in further written material will have the opportunity to respond and put their own counter proposals about ways of proceeding if they want to or comment on your proposals.

MR PULLIN: Yes. Your Honours may also note that we say that if "no" to paragraph 3, that is, there is to be no revocation in relation to the Ord Project, and if in fact it were found that the Ord Project did not extinguish, then there is a whole lot more work to do. We list that in 8. There are all of the reserves within the Ord Project, there is general purpose lease, there are the Packsaddle resumptions issues and there are the leases we have identified as coming within contention 7.

GLEESON CJ: Which is the step in the proposed proceedings that deals with the possibility of remitter, or have you left that out of account?

MR PULLIN: Well, I tried to identify an item where there is not enough available to the Court. The only one I could really identify was 5(4). This relates to the lack of evidence of use or presence upon some areas. We have put in submissions and maps that show areas that we say there was no evidence about and identified the evidence and there is an issue between the parties about it. We have suggested that the Court deals with, say, Lacrosse Island and Lake Argyle, which is what the Full Court dealt with. Then it dealt with the issue of spirituality and whether that was sufficient. Once we know the answer to that, there may be some issues still to be dealt with by the Full Court, but that would have to be remitted, but most of the others, there is not anything to remit, in our submission. It is a daunting prospect, I am afraid.

GLEESON CJ: Is there anything else you want to put?

MR PULLIN: No, your Honour.

KIRBY J: You want to leave us on that note?

MR PULLIN: Yes, I do, your Honour.

GLEESON CJ: Yes, thank you, Mr Pullin. Mr Solicitor for the Northern Territory.

MR PAULING: Thank you, your Honours. Your Honours might recall that Mr Selway announced yesterday that I had given him 15 minutes.

GLEESON CJ: Yes.

MR PAULING: He managed to only extinguish three of them, your Honour, but I intend to be very brief. Your Honours, we come here seeking three things. Your Honour, we seek to deny the proposition that a non-exclusive right to make decisions about non-park use of the land can be a native title right and included in a determination. So that if your Honours were with us on that point, then that particular part of the determination would be struck out.

The second thing we seek, your Honours, and it is set out at the end of our written submissions, and I will not go to them, is that the items we there identify as improvements in the Keep River National Park be added to the schedule to the determination on the basis that their Honours applied a new and wrong test and that at common law there must have been an extinguishing effect from them.

The third, your Honours, is that the appeal in Ward, ground 15, dealing with our Minerals (Acquisition) Ordinance 1953 be dismissed. There is no Ningarmara ground in relation to that Act, your Honours, although Mr Basten has made extensive submissions on it; but when one goes to the Ward submissions, and this is merely for noting, at paragraph 261 and the further submissions on select issues at paragraph 13, those submissions seem to admit or accept the proposition that that ordinance was a general expropriation and, therefore, different to the Western Australian ground, and therefore an act that extinguished all interests in minerals as at the passing of the Act. So that we say we are entitled, on that basis, regardless of what is said against us by Mr Basten, to have that ground against us dismissed.

HAYNE J: What do you say as to Mr Basten's contention that this is not a matter that was in issue at trial?

MR PAULING: Your Honour, it is true that there was no extensive discussion of the Minerals Ordinance and Act itself, but it certainly was in the scope of the finding and the claim to resources and the right to control access to resources and obtain a share of resources, that it was understood that a broader meaning was being given to that than simply flora, fauna and water. But in any event, it has certainly been given a lot of treatment in this Court, your Honour. But as against - - -

HAYNE J: Could the trial judge, consistent with 225(c) and (d) ignore the question?

MR PAULING: I am not sure, your Honour. Could I come back to that right at the end?

HAYNE J: Yes.

MR PAULING: Could I take your Honours to 223 in the Native Title Act 2000 for two purposes. In discussing the way in which subsection (1) and its component parts (a), (b) and (c) might properly be interpreted. In our respectful submission the term "traditional" as in traditional laws acknowledge and traditional customs observed, is what takes us back to the time of sovereignty and the reason for that is that firstly that of course native title to land is a burden on the Crown's radical title, and, that took place on the acquisition of sovereignty and in this respect, can we take your Honours to Justice Merkel's judgment in Yarmirr. It is in [1999] FCA 1668; 168 ALR 426 or 101 FCR - - -

KIRBY J: Why would one gloss the statute to add that requirement. The Act does not say traditional as at a certain date, it just says that, presumably, as at the time of the claim it is traditional.

MR PAULING: What we are saying, your Honour, is that traditional takes you back to the origin of the title that is being protected and that is the time of sovereignty. I take the Court to paragraphs [401] and [402] in Justice Merkel's judgment and you might remember that when Yarmirr was argued we took issue with the majority over what they describe as a tradition-based approach and agreed with the judgment of Justice Merkel and he said this:

The tradition based approach results in what, in my view, amounts to a significant change to the conceptual basis for the common law's recognition and protection of native title as a jural right akin to a property right or interest. As I will endeavour to explain it would be a significant step to eliminate from the determination of native title under the NTA any consideration of the native title that burdened the Crown's title or sovereignty rights upon its acquisition of sovereignty over the relevant area of land or waters.

[402] A critical finding in Mabo was that native title, in the form of a jural right recognised by the common law, only survived the acquisition of sovereignty by the Crown over the relevant land as it was recognised by the common law to be a burden on the Crown's radical title to that land. The jural right was thereafter able to be extinguished by operation of law or may lapse as a result of the loss of the traditional connection with the land upon which the native title was based. It followed that the native title that burdened the Crown's radical title could not be expanded, for example, by post sovereignty use or occupation by the relevant indigenous community of other land.

In our respectful submission, that proposition is correct. So, that, we say, is the way in which - - -

GAUDRON J: It depends, does it? I mean, that, perhaps, may be the best illustration of whether you are looking to a bundle of rights or this organic title, but, let us assume that there is a native title interest over the whole area. The particular rights - why could not the particular rights vary with respect to the land from time to time? The pastoralists come in and they take over and they occupy the land in ways that perhaps the Aboriginal people cannot exercise their rights and they say, "Well, there is other land over there. It is land which we can use. We have never used it before and hitherto we have taken the view it should not be used but now we have got our laws saying `You have got nowhere else to go, you go there'".

MR PAULING: Well, as I understand it, that is what was done in relation to the creation of reserves for the use of Aboriginal people, but it does not mean that those people, in relation to that land, have native title rights. They may have other rights. They probably do. If one looks at 223(3) and (4) - - -

GAUDRON J: No, forget about the reserves. Why can it not be, consistent with 223(1)(a), that you simply look to see if there are traditional laws acknowledged and traditional customs observed, as of today, and you look to see what those rights are, or interests, that come under those laws today. Now, you may have to say, were there traditional rights and interests back at the time of sovereignty to give them the character of traditional, but why do you have to look for precise rights as at 1828?

MR PAULING: I am not suggesting you do, your Honour, and as in Yarmirr we - - -

GAUDRON J: Well, then I am misunderstanding you.

MR PAULING: I am sorry, your Honour. As in Yarmirr, we do not suggest the "frozen rights" theory or anything of the sort. What we do say it has to be rooted in pre-sovereignty context and in Yarmirr [1998] FCA 771; 156 ALR 370 at 405, at first instance Justice Olney, with respect, encapsulated that notion of traditional - the word "traditional" is used in the Act, in the section, as seeking to find the roots of this title in pre-sovereignty pre-contact on the acquisition of sovereignty; it goes back to there. The fact that it may have changed, either in the method of its employment or what it is - - -

GAUDRON J: Or its content?

MR PAULING: In its content, yes, and it depends on the level of - - -

GAUDRON J: So one is only looking at traditional to see if there were laws and customs - - -

MR PAULING: That connected people to land.

GAUDRON J: We are now into the next paragraph.

MR PAULING: Can I just refer you to Justice Olney's judgment at paragraph [85] and [86] and, again, without delaying the Court, we say that that is an entirely appropriate analysis of the part that the word "traditional" has to play, which when you take the example and say that 20 years ago people who had never been on an area moved on and now have certain family traditions, it cannot simply be left to the fact that it was traditional for the Prime Minister to go to a particular place on the New South Wales coast every Christmas - that might be said to be traditional on his part - but traditional in this Act has got a particular role to play.

GUMMOW J: It means more than habitual.

MR PAULING: So we say, your Honours, you have to give the word its part to play, and it takes you back to pre-sovereignty, and that is why.

CALLINAN J: I have a problem about that - the passage from Justice Brennan in Mabo, that Justice Olney refers to. The words in italics:

under the traditionally based laws and customs as currently acknowledged and observed -

seems to me, with respect, to carry within it the assumption that these laws and customs themselves involve evolution, and recognition of evolution, which, as was suggested this morning, really should be a matter of evidence, rather than assumption.

MR PAULING: Can I say two things - - -

CALLINAN J: Do you understand what I am putting to you? I do not think, with great respect, that that passage assists, because it makes the assumption that the law itself recognises, as does the common law, evolution. And I do not know whether it does, and I do not know, and nobody has ever pointed me to any evidence here or in Mabo, or, indeed, in Wik, or anywhere else, to demonstrate that.

MR PAULING: One can say, your Honour, that - - -

CALLINAN J: Again, I suspect - - -

MR PAULING: - - - a law might evolve, I mean, it may change in its particular aspects - - -

CALLINAN J: It may, it may, but not all laws do. Some laws may be fixed in stone, like the Ten Commandments - unchanging.

MR PAULING: It depends upon the level of specificity to which the inquiry goes. The core of the law must be one that the laws and customs - - -

CALLINAN J: It looks to me like the importation of a common law notion of incremental common law change into traditional Aboriginal law. And I am not satisfied that that is permissible.

MR PAULING: With respect, your Honour, we would see it somewhat differently to that notion, in that if you start on the basis that the nature of the laws and customs you are talking about are ones that connect people to particular land and waters, and you say that is the tension - that is what must be there in continuity. So you can go back, and by "go back" not necessarily by direct evidence - by inference, as Mr Pullin suggested - to a time when you say: we find, or a court finds, that these particular people, the Ngarinman people, for example, have been associated forever with these lands. In their conception, it is forever.

They are the sort of laws we are talking about and when Justice McHugh puts the proposition, or rather, suggests that there may be a possessory title, and if you have lost what you need to have that possessory title you have nothing, may well be right. That it is not this little collection and bundle of rights, but that is another way of looking at it. It does not involve, in those circumstances, a necessary challenge to any authority in this Court. But if your Honour is saying do the laws and customs change, I suppose - - -

CALLINAN J: I do not know whether they do, you see. That is a matter of evidence. It is a matter of what is the law, the traditional law. Does the traditional law itself acknowledge the possibility of evolution, and I do not know that and I suspect there is no evidence to that effect. It is rather like giving evidence of what the law of another country is. You might need evidence on it. But it is not a matter for assumption, it seems to me, at this stage, anyway.

MR PAULING: Well, I accept that, and if, in the next seven days something occurs to us that might be of assistance to your Honour, we will certainly put something in. At the moment, we are not intending to. While we are in 223, can I take you to subsections (3) and (4), to say this, that 223(4) refers to "rights and interests created by a reservation" in a "pastoral lease". So that, when you are positing the situation that all native inhabitants of the Northern Territory have a right of ingress and egress, and regress, and so on, that may create rights in people who are not, and could not be, native title holders. Now, in the Northern Territory, during the pastoral industry days, a great number of people came to be living on country that they freely acknowledge is not theirs. But these reservations created rights in them.

Now, the problem that arose was that if those rights for people who would not ordinarily be found to be native title rights where, by this Act, converted into native title rights, all things would fly when there was a clear potential for conflict. So (4) is to avoid any doubt. It is talking about rights which are not native title rights, and you then go back to section 3 and that explains with respect how all that works. There are protections for the rights which are not native title rights to be found in the Act, and they are in - and, perhaps, might just note - sections 16, 22C, 22D and 23H.

Your Honours, the next point is the meaning of "yield" in the Court's determination. As you were told by Mr Pullin, the Court put up a draft determination and asked for the parties' comments upon it, and in joint appeal book volume 4 at page 804 of our submissions, and at the top of the page it says:

The Territory contends that the words "must yield" should be omitted, and instead reference be made to "extinguishment to the extent of any inconsistency".

Sorry, they are not our submissions; they are the reasons And their Honours say:

However, when the words we use are read in the context of our reasons, we see no reason for any amendment.

We say that puts beyond question when their Honours said "yield" that they meant "extinguish".

The effect of the determination is where native title rights are inconsistent with rights under other interests, the native title rights are extinguished. Where native title rights are not inconsistent with rights under other interests, they may be curtailed, suspended, et cetera, by valid law of Australia, which is paragraph 10, and such valid laws we say would include the Native Title Act, particularly section 44H.

GLEESON CJ: Can you just remind us, what are the procedures set up by this Act or which might exist elsewhere to resolve a dispute that arises in a case where there has not been an extinguishment complete or partial of native title rights, but it is said that native title rights are modified or curtailed by the existence of some other interest? What is the procedure for resolving a dispute as to the extent of such modification or curtailment?

MR PAULING: I suppose this, your Honour, that because the act largely looks to the future, if one is dealing with something that is proposed to happen in the future and one wants to see how much it may impact on or conflict with or affect native title, then one may be asked to go through the future act regime and in that way, to the extent that there are negotiations or other procedures of the act, sees ways to work it through. If it was a government wanting to do something, it may go to different streams of acquisition under land acquisition legislation either for government purposes or for third party purposes. So that really, if one confines the question to looking to the future, there are all sorts of mechanisms.

GLEESON CJ: What about in relation to previous acts? I put some examples relating to diamonds this morning to Mr Barker but he responded by saying he did not really mean that. Suppose, if you looked at the determination of Justice Lee in relation to one of these concurrent rights that he lists, you found that there was the native title right, as he described it, and then there was the competing interest listed in the schedule and then you concluded that they were concurrent and a question then arose as to what was the practical outcome of an interaction between the native title right and the concurrent scheduled right. How is the problem resolved?

MR PAULING: You may have to go to an ordinary court and seek some sort of remedy. Take Mr Basten's example of non-pastoral use of a pastoral lease and assume that the native title holder stands at the gate and, as the pastoralist's friends arrive one by one, he inquires, "What are you here for?", and he says, "I've come to play tennis", and he says, "Well, that's not a use of the land for pastoral purposes. You'll have to go away. I'm exercising my right". At some stage, if push did not come to shove, somebody might want to go to court and seek an injunction saying people should not be allowed onto this pastoral lease to play tennis. At that point, yes, in an ordinary way, unfortunately express competing but said to be concurrent rights would emerge.

It is put to me that for the future we are talking about 44H, but they are in relation to rights given under the pastoral lease and here it is denied that the pastoralist could invite a television crew on to film he and his family playing tennis. So it is put, "Well, you can't call 44H in aid because that is not for pastoral purposes, what you're proposing to do". So the conflict ends up in the ordinary courts if it gets serious enough.

GLEESON CJ: The example you gave would be easily answered by saying that inviting somebody to play tennis is an ordinary domestic purpose incidental to a pastoral activity. But take a slightly different example: suppose a pastoralist wanted to establish a tourist enterprise inviting paying guests to come onto the premises. It might be a modest enterprise or it might be a substantial enterprise, but it is not a pastoral enterprise. Then a question might arise as to how you would work out the consequences of a complaint about that.

MR PAULING: But that is not a complaint in the end between the pastoralists and the native title holders. It is a question as to whether what he has got in terms of the pastoral lease would allow him to do so because, if it did not, you would be in breach of the lease and liable to forfeiture.

GLEESON CJ: Now, if some of the guests want to fish, assuming it is either a permissible activity or an activity that nobody with authority to do so is complaining about, and a question arose as to a right to share in the catch?

MR PAULING: We do not see any way in which that could be determined unless the native title claimants went off and sued on their so-called legal right and said, "You caught 20 barramundi and we want 5. You didn't give them to us and they are worth so much each.". They could try and bring an action in that sort of way but we do not, your Honour, for a moment concede that such an action would be successful.

There are so many grey areas, and unless you take a Mabo situation where all the trespassers are gone, they are kicked out by government decree, the people stay in continuous occupation, nobody else is in occupation, you say, "Yes, there is a possessory right, that is what the Court is recognising here, you do not have to worry about all the other bits and pieces, they can work it out among themselves", as, indeed, they did in their own Land Court. But then you try and translate that fact situation or something similar to it, to what we are talking about here on pastoral leases, and it is chalk and cheese, with respect, and you say, "Well, what are we doing? What are we seeking to protect?".

What we know is that in so far as native title rights are coextensive with the reservations and the provisions of the statute that support the leases, those things can be done and they could not now be taken away, except in a proper way or with compensation. We know that in relation to people who have not got native title rights, but do fall under the reservations, they too are protected under this Act.

So that the problem that then arises is that conceptually Mabo is different to what we are talking about here, if we accept that there is partial extinguishment of things like exclusivity. It is conceptually very different. That is where I think everyone is struggling to find a way of expressing it. Those on my left want to put it at the basis that, "Look, it is a right in the land itself and these things are pendant from it and that is why we want to go in the Canadian direction". On the right are those who say, "Well, these sorts of interests must extinguish all incidents of native title".

But where one finds the balance otherwise and how to express it in language that clearly conveys - it ought to be the language that a person could go to a suburban solicitor and sit down and say, "Here is this determination in respect of my pastoral lease. Can you tell me whether they can stop me taking my friends fishing?" Now, the determination we have now, you would have no hope. You do not know whether the people there might have decided you could or you could not. You are put on an inquiry, seemingly endlessly in relation to every shade and nuance of these enumerated rights. We say, your Honours, that that is at the core of the difficulties we are all experiencing in this case.

Can I turn very briefly to a couple of other quick matters. Can I take your Honours to 23G of the Native Title Act. Just before I take you to the terms of the section, can I just say this, there is something that your Honour Justice Gaudron said early on in the proceedings that the key to understanding all this in the end is access, who controls it, who has it, and that is why when you have got a determination that says the native title holders have a right of access that is an understandable and valuable right. It if was true that you could spell out how the native title holders could control the access of others that would be a valuable right but you would need to spell it out with particularity if you want to avoid conflict.

GLEESON CJ: The proposition that the key to all this is the right to control access sounds very easy to reconcile with the proposition that the fundamental principle of native traditional title is the right to speak for the land. It just sounds like the same thing.

MR PAULING: It is not quite, with respect, the same thing, your Honour. The right to speak for the land carries with it a lot of connotations that really go beyond control of access, but - - -

HAYNE J: There is a lot of duties in there.

MR PAULING: Yes.

HAYNE J: Of course there are.

MR PAULING: As indeed when you go through the list in Justice Lee's finding you find there are more duties than rights.

McHUGH J: Mr Pauling, Professor Stanner's article was referred to and he seemed to say it was all based on patrilineal dissent, but was there not some problem about the nephews having managerial rights, and did you have to amend your Act in Queensland that - - -

MR PAULING: No, in the Northern Territory.

McHUGH J: I am sorry, in the Northern Territory, I mean.

MR PAULING: In the Northern Territory over a process of really judge-made law, mainly by Justice Toohey, one started off with the very first land claim, and remember - as in Meneling, when you read the words so often reported about Aboriginal's relationship with land being primarily a spiritual affair, one has to read that against the definition of traditional Aboriginal owner, which involved common spiritual affiliations, primary spiritual responsibility, that is what the Act was driving at. But by a process of argument and evolution, it was seen that in some Aboriginal communities - and there is an article about it by Dr Maddock in the material somewhere - that you often have - - -

McHUGH J: Matrilineal lines had some case - - -

MR PAULING: Yes, and in some cases you even got to mother's mother's people, who formed a third tier if you like, and so in Aboriginal English - - -

McHUGH J: That was done by Judge.....my recollection has failed me. I thought you had to amend the Act when you came to recognise it, but - - -

MR PAULING: No, it involved interpretation of what one meant by "local descent group" and how they function in a sort of Ying and Yang sort of way, you were able to go away from the patrilineal group and encompass the larger functional ritual sort of group and one, by that process, rather expanded the numbers of people who came into that top group of being traditional owners as opposed to those who would otherwise benefit or be entitled according to traditional laws and customs to use.

McHUGH J: Was there some group who had nephews and had managerial rights - - -

MR PAULING: That is the Aboriginal English analogy; you talk about owners and managers, because of their involvement in the pastoral industry this was understandable English, but while the traditional owners, you know, the core of them, the patrilineal group, are the owners, they cannot function in a ritual way without the other side, the female side, if you like, which paint them up and assist them and teach them advances and keep them on the straight and narrow - that is the way it functions in Aboriginal society, at least in those areas with which I am most familiar.

McHUGH J: Could I just ask you this. Am I right in thinking that there is no Austinian view of the law about - this is Aboriginal law and customs, I know, in Austin's view, or Hart's view, or even Dawkins' view. Is there any apt analogies with our thinking about the common law or European jurisprudence at all?

MR PAULING: There are a number of things, your Honour. First of all, if you ask an Aboriginal person whether the law can change, they will deny it, and they will say, "It has always been that way" even if it is known that things have happened - - -

KIRBY J: That would be a common view of many Australian citizens.

CALLINAN J: I do not know whether, if they appear here, it would be.

KIRBY J: Justice Callinan never gives up.

MR PAULING: The article to which I referred, "`Owners', `Managers' and the Choice of Statutory Traditional Owners By Anthropologists and Lawyers" is in volume 7 of the book of materials at page 1714. I think that will answer your Honour Justice McHugh's - - -

KIRBY J: Certainly, you get speared if you do certain offences and that has a sort of quasi-Austinian ring, does it not? It is a sanction.

MR PAULING: But there are other sanctions that have been mentioned here. One might be shunned, one might be banished for a time or for all time. There may be consequences in terms of who you are entitled to marry. In fact, the person you are married to might be given to somebody else as a form of retribution. But, generally speaking - - -

GLEESON CJ: Retribution against whom?

MR PAULING: Generally speaking, the aim of the law is to reconcile the differences and bring about peace and harmony, so that one is always looking for ways in which compensation might be paid or some sort of reparation done.

In relation to our sacred sites legislation, where there has been damage to sacred sites and the owners come to the Aboriginal Areas Protection Authority petrified about what is going to happen, because of their obligations to the managers, if you like, that then one can actually engage in negotiation about how much worth of compensation might be paid, in terms of blankets or cars or other sorts of things, to settle everything down. So that it is not, in the Austinian sense, a requirement that there be an identifiable and immediate sanction for some breach of Aboriginal law or custom.

Section 23G, I just wanted to take your Honours to briefly, just to give it some context. In (1)(a), where a previous non-exclusive possession act involves the grant of rights, none of which are inconsistent with native title, the right so granted, and the doing of any act "prevail" over any native title, but they do not extinguish them. If you take the pastoral industry situation, the ordinary grazing activity might be said to be not inconsistent with these Aboriginal rights, but they will prevail over them, but not extinguish them. That is the scheme now in (2)(b). In (1)(b)(i), where a previous non-exclusive possession act involves the grant of rights, some of which are inconsistent with native title, the rights that are inconsistent with native title, and extinguish at common law, extinguish under this act.

Then you go to (1)(b)(ii), where a previous non-exclusive possession act involves the grant of rights, some of which are inconsistent with native title, the remaining, ie, unextinguished at common law, native title rights are "suspended" but not extinguished, while the lease is in force. So that is where it comes, because it is 23B that deals with complete extinguishment, and 23G deals with partial extinguishment. Then it not only goes on to confirm extinguishment, it deals with the reconciliation of unextinguished rights, the pastoralists' or agricultural rights prevail.

Lastly, if your Honours will permit me, can we go, please, to 226. This is in relation to the Commonwealth's argument that only the Crown can extinguish native title. So, it is 226. It is a definition of "act". Perhaps we ought to go to 227 first because that defines "act" affecting native title:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

So, then you go up to section 226(2):

Certain acts included

(2) An act includes any of the following -

You will see it starts with legislation and grants and the creation of rights, but when we get to (d) we have:

the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise . . .

(f) an act having any effect at common law or in equity.

But then the important provision to see is subsection (3):

Acts by any person

(3) An act may be done by the Crown in any of its capacities or by any other person.

Our submission is that that denies the proposition that only the government, to use the learned Solicitor's expression, is able to extinguish native title. Those are the only oral submissions I wish to make.

GUMMOW J: Mr Solicitor, before you disappear, there was some reference this morning to recent legislation in the Territory revising property law generally.

MR PAULING: Yes, that is the Law of Property Act .

GUMMOW J: Can we be supplied with that with your further materials?

MR PAULING: Yes, I will, your Honour.

GUMMOW J: Unless it is too extensive.

MR PAULING: No, it will be all right. I am sorry, there is one matter I could mention. Mr Basten mentioned the Crown Lands Act of the Northern Territory and took you to a section that made it an offence to interfere with the exercise of rights reserved under the reservation. When that Act was amended in 1978, and provided that - it recast the provision to provide that you could not do so without just cause, and then said just cause would apply if you were carrying out the purposes of your lease. I will supply those sections as well and show when they began. May it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. We will reserve our decision in this matter and we will adjourn.

AT 3.34 PM THE MATTER WAS ADJOURNED

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