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High Court of Australia Transcripts |
Sydney No S101 of 2000
B e t w e e n -
DOUGLAS WILSON
Applicant
and
MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN
First Respondent
THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
Second Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Third Respondent
Application for special leave to appeal
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 12 SEPTEMBER 2001 AT 10.18 AM
(Continued from 11/9/01)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: Might I answer your Honour the Chief Justice's first question of last night as the pastoralists local solicitor at the time. I say that for two reasons. The first is because I understand your Honour's purpose is to identify the answer which would have been given absent knowledge of Mabo [No 2]and the Native Title Act. The second purpose is that the issue could arise in this Court but would not be answered ignoring Mabo and the Native Title Act 1913 .
The reason it could arise was that which was noted in discussion yesterday, namely that if a compensation claim arose under section 23J, it might be necessary for a court to consider whether a particular act, for example, occurring in 1950, had not extinguished native title, but that it now had the effect of extinguishing native title by virtue of the 1998 amendments to the Native Title Act. There would then be a question as to whether the retrospective effect given by the Native Title Act was constitutionally valid. In other words, could one retrospectively annul property at a time 50 years before and comply with the constitutional requirement in 51(xxxi)?
GUMMOW J: This is a State Act. It is a State Act.
MR BASTEN: No, not if the State Act had not extinguished, but the Native Title Act did, but purported to do so as at the date - - -
GUMMOW J: It is the State Native Title Act.
MR BASTEN: Well, that raises another question, your Honour.
GUMMOW J: I know.
MR BASTEN: I do not want to address them and I know your Honours will not want to address them. I am merely indicating that there are difficult questions which arise in relation to some of the provisions of the Native Title Act. Having said that, my answer to the Chief Justice's question in 1951 to the pastoralist would be something along these lines: "Your lease does not expressly confer a right of exclusive possession. You have rights to exclude strangers with no legal entitlement to come onto the land. You may have rights against the Crown, but they are limited rights because of the expansive rights of entry provided under Schedule A to the Act. I am not sure whether those rights would properly be characterised as limited rights of entry of a landlord", historically referring to Justice Windeyer in Radaich, "but you want to know because you want to require the Aborigines who camp in Top Myall Paddock from time to time to desist from doing that. There used to be a reservation in your predecessor's lease which could have precluded you taking that action, your lease has none, but I am conscious of the Privy Council in Amodu Tijani and so on, the law is unclear in this country."
Now, I appreciate that is a long answer, but it may be the correct answer to be given in 1951 by the Solicitor, and I suppose if his daughter had taken over his practice by 1994, she would then qualify the advice by reference to the comments, for example, in the joint judgment of Justice Deane and your Honour Justice Gaudron in Mabo at page 94 at about point seven, namely that native title, if it existed, would constitute a defence to an action in trespass. In 2001, of course, the answer would be informed by the resolution of the native title issue in Mabo and the Native Title Act.
That takes one back, one would think, to the question of what the term "exclusive possession" means in section 23B and in section 248A. Might I add two things to that which we have already discussed. Although there is no definition of "exclusive possession", it has been suggested to your Honours - and I will explain why - that what the Parliament was seeking to do in Division 2B was to incorporate the principles which had been enunciated by this Court in Wik. There is a hint of that in section 23G because 23G deals with the circumstance in which there is no exclusive possession, which is assumed by the legislature to extinguish all native title rights and interests, but there may be inconsistency between native title rights and interests and the rights granted. In that case there may also be extinguishment. That is 23G(1)(b). In other words, the legislature appears to be picking up the test of inconsistency of incidents, as was expounded in Wik.
Your Honours, that they were seeking to do so appears clearly from some passages in the explanatory memorandum to the 1998 legislation which are not contained within the New South Wales submissions. Might I hand up copies of the relevant extract and simply draw your Honours' attention to one or two passages which appear to clarify the way the Parliament intended this legislation to work. I have given your Honours extracts from Chapter 3. It is probably sufficient if I take your Honours to page 30 of the extract which begins with paragraph 3.40 under the heading "The effect of the High Court's Wik decision". At paragraph 3.41 in the second half, your Honours will see a sentence beginning:
In particular, their Honours -
that is the Wik majority -
found that there was nothing in the Acts under which the leases were granted, or in the lease instruments themselves, that should be taken as intending a total exclusion of indigenous people from the land -
that we understand to have been the test that the Parliament thereby adopted in relation to the concept of "exclusive possession" -
there being a strong presumption -
and so on. At the bottom of the page, paragraph 3.44 notes that:
Accordingly, the decision opened up the possibility of claims being made over a greatly increased area -
as it is described. That was of course on the basis of a different assumption which had existed up till that time. On the last line of that page:
As native title may continue to exist on pastoral leases, which cover a significant proportion of Australia's land mass, and the NTA will protect those rights, it is important to ensure that there are effective processes for regulating the interrelationship between native title holders, pastoral lessees and others.
While I am with that material, we have also given your Honours some of the explanatory memorandum in relation to the scheduled interest simply to indicate, in answer to the discussion yesterday, what the exercise was that was undertaken. At page 402 of the document, which is two pages further in from that which I was referring to, at paragraph 36.8 your Honours will see a statement.
In order to restore certainty to Australia's land tenure system, point 2 of the 10-Point Plan sought to confirm in legislation the Government's understanding of the common law relating to native title, namely that native title is extinguished by the grant of a valid `exclusive' tenure, such as freehold - - -
et cetera. Then at paragraph 36.11 on the next page again a reference to Wik followed by the statement that:
Leases that do not provide exclusive possession do not wholly extinguish native title. Lesser interests, such as licences and permits, will be in the same category. The Government's policy is not to extinguish native title where it exists in accordance with the common law on pastoral lease and other land.
Then there is a description which follows of the kinds of leases which have been included in the schedule. I will not take your Honours through that. I should note, however, that at page 410, in paragraphs 36.48 and 36.49 there are qualifications on the conservative approach which is said to have been adopted in incorporating items into the schedule.
Now, what follows, I suppose, from that analysis and particularly from the scheme of the Native Title Act as it presently exists is that there will be shared occupation, at least, of lands in some cases. It follows, therefore, that one may need to adjust the concept of trespass in so far as it is limited to circumstances in which people can assert exclusive possession so as to take account of those variations.
We have sought to say that there is nothing particularly controversial or surprising about that. Firstly, may I say this. It is clear that native title rights can constitute a form of possession of land, at least when they are exclusive. That was acknowledged in the order in Mabo and it is now reflected in section 225(e) of the Native Title Act. The position, of course, may be different in relation to coexisting rights. The idea that there may be coexisting exclusive possession rights in relation to land is merely a reflection of the nature of land. We have given an analysis in the written submissions at paragraph 5.18 of the Glenwood Lumber Case, which was considered by your Honours in Wik, and I will not take your Honours to the case itself.
The point we sought to raise though, in that regard, appears at a passage in the middle of page 10 of the submissions where it is recognised by the Privy Council that whilst the lumber cutters may have had exclusive possession for the purpose of taking timber, there were also farmers who were authorised to clear and cultivate the same land. That is apparent from the last two lines of the paragraph in the middle of page 10 from the quotation. Of course, we do not know whether those who had agricultural rights in the land also had exclusive possession.
What we have then sought to do, your Honours, is to note that in relation to the common law it is clear that a relatively sophisticated approach may be required these days in relation to trespass. The point of Bruton, to which your Honours were taken yesterday briefly, is that the London and Quadrant Housing Association granted to Bruton an exclusive possession of premises in which the Association had no proprietary interest. In other words, the concept of exclusive possession may not be limited to carving out a proprietary interest from that of the person who grants the interest.
We have given your Honours some extracts from Gray and Gray and, in particular, the discussion in the author's text notes that there is now a departure, as it were, from the proposition that exclusive possession and the concept of tenancy is a particularly proprietary interest and it works in both directions. Firstly, the proprietor may grant a contractual interest of exclusive possession without having a proprietary interest. Secondly, in relation to the Manchester Airport Case which the authors also discuss, and I will give your Honours the reference in a moment - I am sorry, the reference to the discussion in Gray and Gray about Bruton is at page 330 to 331, which makes the point I was seeking to summarise, in part, and also, and perhaps in more detail, at page 326 to 327. Your Honours will see at the bottom of page 326:
The decision in Bruton thus confirms the existence, in English law, of the phenomenon of the contractual or non-proprietary lease -
and so on. That discussion, perhaps, I should have taken your Honours to to start with. The position in relation to the Manchester Airport Plc v Dutton [2000] 1 QB is that - I do not think it is on the list of authorities and I was not going to take your Honours to it in detail but it was simply an illustration of what your Honour the Chief Justice raised by way of reference to the builder yesterday.
In that case, what had happened was that a contractor had been given exclusive possession of part of the airport in order to lop the trees. Green environmental protesters had no doubt come onto the land in order to stop that happening and the contractor sought to bring an action in trespass to remove them, having no more than a licence, but for the purpose of the licence having exclusive possession and was able to do so.
It is [1999] EWCA Civ 596; [2000] 1 QB 133, your Honour, and it is also discussed in the extract to which I have taken your Honours in Gray and Gray, in particular, at page 238. At the bottom of the last full paragraph on that page, your Honours will see a reference to the case as involving:
an unexercised contractual right to non-exclusive occupation of land represents a better claim to possession than that of a bare trespasser.
That, as it were, is by way of background. What I wanted to say in relation to native title was that one sees precisely the same exercise which must be undertaken throughout at least two-thirds of this country where pastoral leases still contain a reservation in favour of Aboriginal people. Of course, it was a reservation which existed at one stage in relation to the land in question in the present case. Might I just say something by way of interpolation about that.
KIRBY J: Can I just ask what your submission is in relation to Mr Jackson's contention that it is like seeing the same thing from a different aspect. If you look at the reservation, the reservation in a sense acknowledges that you have to have the reservation in order to detract from that which already exists in law and that, therefore, the other way of viewing it is that the reservation is a derogation from that which the law confers on the titleholder.
MR BASTEN: Yes. Your Honour, I think I return to the point I was seeking to make yesterday, that each of these express references can be viewed in both ways, depending upon where you start from. Can I come back to this. What I wanted to say about it though, for present purposes, was that where there is a reservation, there is, presumably, no doubt that those Aboriginal people who fall within it have a legal entitlement to be on the land. So that what one then needs to ask is how their entitlements are resolved when there is a conflict with those of the pastoralist. Your Honour Justice Kirby asked yesterday: what happens in the drought? What happens as between the stock and the Aboriginal people who are entitled to use the water?
Our answer would be that where there is a reservation the Aboriginal people must have a prior right, because their rights are reserved from that which is granted to the pastoralist. If one had a different circumstance, namely a native title right, which was in conflict with the right of the pastoralist, as the Act recognises it can be, then section 44H of the Act will resolve it perhaps in a different way, because it says that the pastoralist's right under the grant will prevail over native title and section 23G appears to adopt a consist approach. Arguably, neither of those sections deal with the case of a reservation, as such, and it is that point which I was seeking to come to if I might in relation to this particular land.
The applicant argues, as we understand it, that the express reservation is necessary, as your Honour says, to avoid the implication of a possession exclusive of the Aboriginal inhabitants and that its absence leads to the conclusion that there is a right to exclude. But that approach, in our submission, assumes the answer to the question, whereas in truth the same terminology of lease and demise, which is relied upon for the assumption, is used throughout the legislative schemes that we see around Australia, including in New South Wales and the better view must be, in our submission, that the terminology should be viewed as neutral in that respect. In other words, the drafter of a pastoral lease with a reservation saw no incongruity in describing the pastoral lease as a lease.
Might I take your Honours to page 2923A in volume 14, which is the predecessor to the current leases. I think your Honours were taken briefly to this document by Mr Jackson. The original appears at page 2924 which, in my copy, is reasonably legible, but there is a transcription a few pages before that at page 2923A and your Honours will see, looking at the transcription, that it is described as a:
Lease for Pastoral Purposes
and two-thirds of the way down the page, after the parts which have been ruled through, it reads:
WE DO HEREBY, FOR Us, Our Heirs and Successors, demise and Lease -
the terminology upon which, of course, the applicant relies, and then at page 2923C, in the middle of the page, one finds the reservation as it was contained in that lease, and it all appears at page 2924 in the original.
Might I just say one thing by way of interpolation. This lease is not the actual lease in relation to this land, which was granted, I think, in 1885. The document itself appears to be missing and this, by agreement of the parties, was put in as a typical lease of the period, which would have been in the same form.
GLEESON CJ: Mr Basten, if I could just hark back to something that was said in that explanatory memorandum that you showed us a little earlier. I take it that if there were a grant of a residential tenancy that would extinguish native title.
MR BASTEN: Yes.
GLEESON CJ: Even a tenancy for a week.
MR BASTEN: Yes.
GLEESON CJ: The reason for that would be that the incidents of such a tenancy would include a right of exclusive possession and the Native Title Act would operate on that.
MR BASTEN: Yes.
GLEESON CJ: Do you derive those incidents as a matter of construction of the lease?
MR BASTEN: Yes, in its statutory context one would, your Honour, yes.
GLEESON CJ: And, you would have no difficulty construing the lease in a manner that attached to it incidents that were inconsistent with any continuing exercise of native title rights or interests, in the case of a residential tenancy?
MR BASTEN: Well, the conclusion that it was inconsistent with native title follows from the statute, of course.
GLEESON CJ: Because of the exclusive possession.
MR BASTEN: Yes, and the construction of the lease in that case - it is a bit hypothetical but it would probably be viewed without being too concerned about the need to demonstrate a plain and clear intention to exclude Aboriginal people because in the case of a residential lease presumably there would be no reason to distinguish them from anyone else. One looks to the purpose of the lease and one needs to exclude everyone.
GLEESON CJ: But that is all in aid of getting to a conclusion that there is a right of exclusive possession and once you have got to that conclusion, by force of the statute, that is it.
MR BASTEN: Yes.
GLEESON CJ: What is it that prevents you getting to the same conclusion about exclusive possession in relation to this lease? Is it, for example, the fact or the consideration that there is not the same incongruity about a coexistence of the lease and native title and interests that there manifestly is in relation to a residential tenancy?
MR BASTEN: That is certainly part of it, your Honour, yes.
GLEESON CJ: What else is there, apart from that?
MR BASTEN: There are a number of elements even in that, your Honour, because where we start from in - might I say there is a slightly artificial element to this case because, as I understand it, the applicant concedes that there has been no prior extinguishment of native title before this lease came into effect.
That in a sense distracts attention from the fact that an earlier lease had a reservation in it and therefore there might be some understanding that as a matter of fact people were living on the land when this lease was given. Mr Jackson rather obliquely referred to the name of the property as "Myall" and the "top myall paddock" and so on. As we know, "myall" is a word for a traditional Aborigine living in accordance with his culture and traditions, and "myall country" is actually defined in the Macquarie dictionary as "lands in which Aborigines lived in a traditional manner." So that against that historical background, one would say there was no incongruity so long as of course the lease itself did not grant interests which were necessarily inconsistent with all aspects of Aboriginal presence on the land.
For that part of the argument one turns, I suppose, to the limited purpose of the lease, namely for grazing. The fact that grazing had been carried on previously in the presence of the reservation for Aboriginal people, that the use of land for ordinary Aboriginal activities was not historically seen as inconsistent with grazing rights, that the lease itself did not appear to provide what we would normally think of as exclusive possession, the rights of others to enter were inconsistent with that. There are, as it were, a series of indicia, all of which one might look at in order to come to that conclusion.
KIRBY J: Did I understand your statement before that exchange to be that this document, the lease, which is a reproduction of 3245, is not the actual lease?
MR BASTEN: No, I am sorry, your Honour.
KIRBY J: I must have misunderstood.
MR BASTEN: No, I am sorry, I did say that. I was not referring to that document; I was referring to the earlier lease which is contained in volume 14 at 2923A.
KIRBY J: That was the predecessor to the document which I have just referred to, was it, or it is the pro forma of the predecessor?
MR BASTEN: Yes.
KIRBY J: Which both parties agree would have been the form in which the original lease was granted.
MR BASTEN: Yes. Might I just take one minute to explain how the tenure history operates. If your Honours go to page 297 in volume 2, your Honours will see that on the right-hand side there is a reference to the Angledool pastoral holding which your Honours were told yesterday was the predecessor to the western lands lease. That is a document dated 1885 and it provides a description of the land which became the subject of the first lease. Perhaps there is a prior reference which one needs. At pages 291 to 292 there is a notification of the creation of a reserve for travelling stock, which appears at the top of page 291 in the left-hand column. That is a document which was created in 1883. It relates to a district, the Warrego district, which appears in the description at 292. Your Honours will see references to some of the blocks in the beginning of that description which are also found in the Angledool pastoral holding description on 297.
If your Honours go to the plan which is set out at 322, a plan which of course is after the commencement of the Western Lands Act, WL3878 is the property identified in the middle of the plan and just to the right and above that, your Honours will see diagonally the letters "TSR". That is the travelling stock route which comes across the north-eastern corner of the side of the block. There are some other interests which are relevant. Your Honours will see two lines running from the north-west across the block with "BORE DRAIN", one just beside "WL3878" and one further down alongside "TOP MYALL PDK". Those were created by water trusts. If your Honours turn to 303, there is a document in 1915 which creates the Dungle Ridge Bore Water Trust.
At 305 your Honours will see a notification setting apart Crown lands in the second column, which is the notification in relation to what becomes the lease. That appears more clearly at page 308 where the so-called Myall block is identified in the Government Gazette of 16 January 1953 in the left-hand column, a third of the way down. Then if one goes back to 322, that is the plan of that block. As your Honours will see, there are some tracks and things which appear to be noted on the block and there is a bit of a description of the land, but that is all we have for present purposes.
Now, in dealing with that aspect of the matter, I make the point about the terminology which has not changed and does not vary depending upon whether there is a reservation or not. It is convenient in that context, if I may, to return to the question which I was addressing just before your Honour the Chief Justice's question last night and it relates to the description of the relationship between this Western Lands legislation and the Crown Lands legislation which I was dealing with partly in response to your Honour Justice McHugh and what I had sought to do at that stage was to take your Honours to two aspects of the matter, one I perhaps need not develop further. We say in the submissions that the reservation for a travelling stock route which can be varied, presumably, in relation to this block because of the reservation in the lease, the western lands lease which I took your Honours to yesterday at about line 50 on the big copy and also section 34 of the Crown Lands Consolidation Act which is the only source of a power to create or by notification define a travelling stock route on Crown lands. The Crown Lands Consolidation Act is in volume 7 of the materials. I need not take your Honours to section 34 specifically, I merely note it.
What I was seeking to do, however, was to go to section 254 and I gave your Honours a reference to that section and to the regulations just before we finished last night, together with a copy of sections 203 and 204 of the 1910 Queensland Land Act 1884 , to make the point that there is a significant similarity between those provisions, one of the variations being that, of course, in New South Wales all this land remains Crown land and, further, that the regulation which allowed a lessee or the holder of any other interest indiscriminately to bring an information for trespass depended upon the Crown Minister authorising it in the specific instance.
May I also invite your Honours' attention to section 12 of the Western Lands Act which is relevant in this context. The Western Lands Act is set out in volume 1 and I think your Honours were taken to a composite version, particularly at page 65 for present purposes, although section 12 has been in the same form since 1901. Section 12 provides, at the top of page 65, that:
The Minister, the Commissioner, or an Assistant Commissioner or any person authorised by, the Minister, the Commissioner or an Assistant Commissioner may at any time enter upon any Crown lands within the Western Division for the purpose of giving effect to the provisions of this Act or the Crown Lands Acts.
There are obviously two aspects to that matter. Firstly, that there is an open right, as it were, unconstrained as the time or occasion for the Minister and so on, to enter the land; and secondly, the reference to the purposes in relation to the Crown Lands Act. If one then goes back to - - -
McHUGH J: Is there any illumination of what those purposes may be?
MR BASTEN: The purposes of the Crown Lands Act, your Honour?
McHUGH J: The purposes to which reference is made in 12, why may they be entering for the purposes of giving effect to those Acts?
MR BASTEN: Your Honour, I think the answer to that may be derived, in part at least, from the references in the lease to the obligations imposed in relation to the development of the lands and the stocking of the lands, including at the bottom of page 2 in clause 15, the obligation not to "overstock", the decision as to which is "the decision of the Commissioner" and the obligation to "comply with any direction of the Commissioner" in relation to overstocking, and the directions which may be given under clause 17 not to "use by stock of any part of the said land". These are all, as it were, purposes by way of powers vested in the Commissioner or the Minister - - -
HAYNE J: Or is the focus more on provisions of the kind found in clause 22 of the lease, which contemplates permission to enter to "survey, investigate or carrying out such work in connection" with certain matters? How wide is section 12?
MR BASTEN: Clause 22 appears to go beyond section 12, your Honour, because it talks about the Minister for Conservation, not the Minister administering the Western Lands Act or the Crown Lands Act which is presumably, in answer to your Honour the Chief Justice, why that clause is there and why permission is required, because it goes beyond the statutory scheme which provides for entry in relation to the Minister administering the Act.
Your Honour, I might refer to the forfeiture provisions. There are all sorts of conditions imposed under the Western Lands Act which your Honours have been taken to, in relation to which entry might be required.
The other aspect that I wanted to deal with briefly if I may, is the inter-relationship of the two Acts. Your Honours, in relation to the 1913 Act the answer must be found by reference to section 6 of that Act, which appears in volume 7 at page 1290. It provides that:
Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act -
and so on. It then provides that sections 2 and 4 must be read in this context and this section is subject to them. Section 2 is not currently relevant. Section 4, of course, provides that:
This Act shall not be construed so as to affect . . . the operation of any provision contained in -
and the third one, as Mr Jackson noted, is the Western Lands Act.
The effect of construing the Crown Lands Consolidation Act, of course, is to start with that Act - this is a later Act than the 1901 Western Lands Act - and then ask the question, "Are the provisions, for example 254 and 255, in any sense inconsistent with those in the Western Lands Act?", and we say the answer to that is "No", there are no equivalent provisions.
McHUGH J: But is that the proper explanation? One of the problems that the legislature had to face was that prior to 1901 land in the western division had been leased under the Crown Lands Act and leaseholders were given an option in section 13 of the 1901 Act to bring their leases under the Western Lands Act 1901 if they wanted to, but if they did not, those leases could continue on until 1943, so that at least until 1943 there was this dual regime.
MR BASTEN: Your Honour is right, and it comes back to the question asked yesterday, I suppose, about how this Act operates. Within the context of this case, we have not explained in our written submissions precisely how it did operate or how it came about. With the Court's leave, might I hand up copies of those parts of our submissions in the Full Court which deal with this issue? It may save me some time because I do not want to go through the Act in detail. Is that a convenient course, your Honour?
If I do so, perhaps I can just draw your Honour's attention to a short passage which perhaps confirms what your Honour is saying to me, but it relates to the operation of the closer settlement scheme in New South Wales. Your Honours will recall that the original allotment of lands in New South Wales was subject to extraordinary corrupt practices of dummying, peacocking, picking out the water holes and then making the rest of the land around unusable by anyone else, and so on. So that, ever since the 1860s, in effect, there had been attempts to break up the big properties.
Now, at page 73 of those submissions we seek to summarise, in that conclusion at paragraph 6.1 to 6.3, how that closer settlement scheme had effect both in relation to the 1884 Crown Lands Act which created a special tenure for the western division, namely, the homestead lease, which was then taken over, as it were, by the Western Lands Act so that the lease tenure which one finds - and this is the point your Honour is making I think - was not, in substance, a power to grant pastoral leases but homestead leases, because there was an attempt to reduce the size of the runs so that they were not so small that people could not live off them but allowed more people to settle on the land.
Of course, the tension between those two policies perhaps has never been, in practical terms, allowed to obtain a sensible result in terms of sustainable use. But that was the history which gave rise to the western lands legislation, but the point we seek to make about that is that one is still left with the grazing tenure which was created under the 1884 Act in the present case, subject to the reservations and the constraints on use which were more detailed and specific in relation to the western division than in relation to the better watered divisions.
Your Honours, can I say that those are the conclusions. We have provided some historical background to justify that understanding of the legislation. The other part of this document which we have provided to your Honours is Attachment A to our submissions and this was, perhaps, a way of answering your Honour Justice McHugh's question as to how the legislation should be compared with the Queensland Land Acts which were considered in Wik.
Obviously, this was a matter which was considered in some detail in the Full Court and we had not originally intended, nor could we have, within the page limits of the submissions, reproduced this detail, but Attachment A, which is pages 108 to 122 of the original submissions, seeks to set out precisely that comparison. I will not take your Honours through it, but might I simply note that that may provide, as it were, our answer to your Honour's question about how the legislation compares. I apologise for doing it in that way.
Might I also, in this context, say that before leaving the operation of sections 254 and 255 that we would note that these provisions that dealt with the equivalent provisions in the Queensland Act were dealt with in a number of - in fact, all, I think, of the judgments in Wik, perhaps most expansively in your Honour Justice Gummow's judgment, starting at the bottom of page 191 and continuing through to 195. Perhaps it is sufficient to say that, at the top of 194, at about point 3, after a discussion of what is meant by unlawful occupation, your Honour concluded:
In the result, whichever shade of meaning is given to that term as used in s 204, as to which it is unnecessary to express any concluded opinion, s 204 did not render indigenous inhabitants relying upon their native title liable to removal from land which was for the time being Crown land -
and I need not worry about the alternative, because this is all Crown land in the present case. In the middle of 194, your Honour said, after reference to various paragraphs of 204:
This is not to be read as directed to authorising the Crown to expel indigenous inhabitants from occupation of land enjoyed in the exercise of their unextinguished native title.
The same result flows in relation to the lessee and the interests granted under the equivalent section to him.
Your Honour Justice McHugh also referred yesterday to Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687, and, I think, to the judgment of Justice Mahoney in that case. Might I just briefly say one thing about that. In a sense, your Honour, I think what I wish to say is probably also summarised in the judgment of the majority in the Full Court in this case at paragraphs 105 to 107. At the bottom of 712 to 713, Justice Mahoney sought to draw a distinction. At 712G, his Honour said:
There are, I think, two alternative views of what is done when a "lease" is granted under the Western Lands legislation. First, the authority granted by the legislation may be read as: The relevant authority may grant a common law lease of land in the Western Division, but such lease shall contain the covenants and conditions and have the other incidents provided for in the legislation. Or, secondly, it may be read as: The relevant authority may grant statutory rights, described for convenience as "lease" but being statutory rights, having the covenants conditions and other incidents provided for in the legislation.
At the top of the next page his Honour says he is inclined "to the first view" and it is, as it were, a tentative view and he deals with the second view in the second paragraph on 713 because it achieves the same result. I am not sure whether your Honour was suggesting that he had expressed a concluded view about it which was contrary to the way we were putting it, but I would not understand his Honour to have done that. In a sense, it may not matter terribly but his Honour's was a minority approach because Justice Meagher agreed with your Honour the President.
At the bottom of page 696 to 697 - and I will not perhaps read it - your Honour Justice Kirby described the matter in a way which perhaps avoids the need to categorise the statutory scheme in quite the dichotomous way that Justice Mahoney did and, with respect, we would have thought that that was the approach which might be adopted. Needless to say, that authority was referred to in, I think, all except Justice Toohey's judgment in Wik. Your Honour Justice Gaudron dealt with it at the bottom of page 149 of Wik 187 CLR in footnote (551). Your Honour Justice Gummow dealt with it at page 198 at point 2, the case is referred to in footnote (737), and your Honour Justice Kirby also referred to McPherson at 239, about point 5 and the reference is in footnote (882).
We say there is nothing inconsistent, for present purposes, with the argument we seek to put in the Full Court in the paragraphs 105 to 107, as we would understand it has said the same thing. Might I also note that the Full Court at paragraph 117, and perhaps some paragraphs both before and after, deal with the analysis of the statutory scheme in a way which reflects a substantial acceptance, we would say, of the submissions that I have just handed out.
The only other point I think I would seek to make in this regard is that it may not be necessary in this case to determine how the concept of possession applies to native title. The passage that I quoted from your Honour Justice Gummow in Wik referred to occupation where there might be coexistence. Whether one speaks of possession or occupation is perhaps not a matter which requires detailed consideration. What we would seek to say was that in the passage at page 229 in Gray and Gray the authors note that one can speak of the distinctive or peculiar intensities "of possessory control" over land. This idea is continued at page 232 in a passage from which they described relative "degrees of possessory control".
At some stage it may be necessary, especially for the purposes of section 225, to identify how this may operate in relation to coexisting tenures but the question will ultimately be resolved for our purposes, we would think, by reference to the scheme of the statute and that the scheme of the Native Title Act accepts that there may be coexisting occupation and no doubt interests in possession is a consistent theme, not only in those passages to which I have taken your Honours and which are of direct relevance, but also in Part 2 Division 3 of the Act which deals with the operation of native title in the future and future acts.
Perhaps it is sufficient for this purpose if I simply note subdivision G, which is at page 56 of the green print, which deals with "Future acts and primary production". All of subdivision G envisages that there will be grants of further interests to pastoralists and those undertaking primary production pursuant to non-exclusive agricultural or non-exclusive pastoral leases which may affect or impair native title. All of those pages through to subdivision H at page 63 address that precise point. So that it is perhaps the statutory scheme which will ultimately need to be considered in order to answer the question of principle to which I have referred. Your Honours, other than that, I think we have said what we wish to say in our - - -
GLEESON CJ: May I ask this question, Mr Basten? The contemplation of the Full Court of the Federal Court, as I understand it, is that the progress of this litigation now will be that it will go for some decision at first instance, assuming mediation does not revive and succeed, upon the nature of the rights and interests to which the claimants are entitled.
MR BASTEN: Yes.
GLEESON CJ: To what extent do we know the nature of the rights and interests which the claimants claim at this stage? I realise that there may be disputes as to some or all aspects of those claims, apart from the argument about extinguishment, but how well informed are we at the moment about the nature of the rights and interests that are claimed to exist?
MR BASTEN: I think I would have to say, ill informed, your Honour, because all that one has before this Court is the original application made - - -
GLEESON CJ: What light does that show on it?
MR BASTEN: Very little.
GLEESON CJ: Where do we see that again?
MR BASTEN: Page 37 in volume 1, subject I should add to an amendment which your Honours were taken yesterday. May I perhaps say this by way of background: the form of the application, which is contained here and commences at page 32, is a proscribed form under the Native Title Act. It was not originally lodged with the Federal Court, because it was lodged prior to the change in arrangements which occurred with the 1998 Amendment Act. It is lodged with the registrar who is then required to consider whether rights can be put on the register of native title claims and that is a consideration which has obviously been given to this. That has nothing to do with any claim though before the Federal Court; registration is a separate process of no direct concern to the Federal Court in considering an application for determination of native title.
What one would expect to happen though, at some stage, is that either particulars will be given, it is quite frequent that there are informal pleadings in these cases or, in any event, there would be extensive affidavit evidence from both individual claimants, members of the group whose interests are sought to be represented and anthropologists, historians and others who may be able to throw some light upon the nature of the rights and interests in issue. Those, of course, would be determined in this case as at the date of the judgment. Nothing would be said about - - -
GLEESON CJ: But if you look at page 37, a starting point of the claim, as I understand it, is a contention that, as a matter of native title:
The applicants . . . are entitled . . . to the use, possession and enjoyment of -
all this land.
MR BASTEN: Subject to paragraph 3, whatever that may achieve.
GLEESON CJ: If that is the starting point of the claim, presumably the exercise then is to measure the extent of the inconsistency between the rights granted by this lease and those rights and whatever is left over is the surviving native title rights and interests to the extent to which other matters such as continuing connection and so forth can be proved.
MR BASTEN: Yes, and subject to the operation of section 23G if this is not an exclusive possession lease, which may mean that some rights have been suspended but may still exist presumably in a suspended - - -
GLEESON CJ: As I understand it, if this is an exclusive possession lease, we never get to this; we have extinguishment.
MR BASTEN: That is right.
GLEESON CJ: So we are having this discussion on the assumption that this is not an exclusive possession lease.
MR BASTEN: In that case one does need to understand what section 23G says about inconsistency.
GLEESON CJ: Yes. Just applying that for a moment to the present case on the assumption that it is not an exclusive possession lease, what is left of a claim as against the whole world to the use, possession and enjoyment of this land after you subtract the rights granted by this lease? Can you just give me a practical example?
MR BASTEN: Yes. The claimants may have a right to come onto the land to hunt kangaroo, to collect game. They may be able to camp on the land for that purpose, take water and so on. Those would be examples. They may come onto the land for cultural purposes, for ceremonies at particular sites. Those would perhaps be examples which are unlikely to be inconsistent in a legal sense with the rights of the pastoralist to graze cattle. Is that sufficient, your Honour?
GLEESON CJ: Thank you.
MR BASTEN: I obviously seek to rely on the written submissions.
KIRBY J: Do we know how many applications are before the tribunal in respect of these claims under the - - -
MR BASTEN: In the western division?
KIRBY J: Yes.
MR BASTEN: There may be an answer given in Mr Shaik's affidavits, your Honour. Mr Jackson could probably tell your Honour that. I do not know the figure off the top of my head.
KIRBY J: If there is a threshold point in the sense of a knockout point, then it would seem that there would be great convenience in securing an answer from the Federal Court, it being common ground that there are many such claims as, for example, say, in Fejo with fee simple. It is desirable that the law should be clarified if it is clear.
MR BASTEN: Perhaps I might say this, your Honour. In principle we do not have any difficulty with that proposition. There is a difficulty, as your Honours are aware, from the way the questions are formulated. What we have suggested at page 57 of our written submissions is an answer that may be given particularly to question (b), which really says this is not a knockout point. That is the substance of the answer. I appreciate that there is an anterior question as to whether this Court would even want to say that if it is of the view that the Federal Court has addressed the questions from an incorrect standpoint.
HAYNE J: Can you point to any case of any kind where questions have been directed for separate determination, or in the old originating summons process questions were posed, where an answer has been given by a court introduced by the words "Strictly unnecessary to answer, but"?
MR BASTEN: No, your Honour.
HAYNE J: What do you mean by it?
MR BASTEN: It means that this question cannot be answered in the terms in which it is asked.
HAYNE J: That being so, why should, firstly, this Court - why do you say the Federal Court can or should give an answer of that kind? Can it?
MR BASTEN: There is a legal issue, I suppose, as to whether it has power to answer a question without, as it were, amending the questions and this Court - - -
HAYNE J: What do you say as to that legal issue?
MR BASTEN: Well, your Honour, I can understand the proposition that this Court has no power to deal with it in those terms and also that - - -
HAYNE J: Because the Federal Court had no power, is that the proposition you either put or accept? Where are we up to with these questions?
MR BASTEN: Yes, I am not sure that I would say that the Federal Court has no power because, given the nature of the appeal - sorry, it was not an appeal - - -
HAYNE J: It was original jurisdiction.
MR BASTEN: I am so sorry. The court would have had power if there had been an application - - -
GAUDRON J: I do not know that that is right. I mean, the practice, as I understood it, was always that the person who formulated the questions changed them, so it would have been open to Justice Beaumont to change them.
MR BASTEN: It would have been open to an application to be made to his Honour for that purpose, that is all I sought to say.
GAUDRON J: Yes.
MR BASTEN: I am not saying that it would necessarily have been an appropriate application if it had been made after the whole matter had been heard on a false basis.
GAUDRON J: On your submissions, the answers to questions (a) and (b) are "inappropriate to answer", but for different reasons. Question (a) is inappropriate to answer because it simply does not arise in the proceedings and question (b) is inappropriate to answer because it is not the question directed by the Native Title Act.
MR BASTEN: Yes.
GAUDRON J: But is it not implicit in the answer given to (c) by the Full Federal Court that they answered (a) and (b) "no", at least when you have regard to their reasoning?
MR BASTEN: Yes. Well, I understand that proposition, your Honour, I think. That is why in a sense we - if this Court were simply to refuse special leave which would be one way of dealing with it, then the matter would have to go back to the trial judge, presumably, for the matter to proceed in the normal way because - - -
GAUDRON J: What does that mean in light of the provisions in the Act for the determination of preliminary questions?
HAYNE J: What does the trial judge do with the answers that the Full Court have given him or her?
MR BASTEN: On the basis that, well, they may not assist the trial judge in abbreviating the proceedings which would then have to go ahead. That is what I meant when I said they proceed in the normal way. There would be a determination as to whether mediation should be completed and so on. I say that because, in a sense, the reasoning of the Full Court - which, of course, is not the subject of this appeal - is, as your Honour Justice Gaudron says, in a sense consistent with answering "no". But that would mean that the attempt by the applicant to prevent the proceedings with a point which determines them conclusively in its favour at the outset would have failed.
HAYNE J: Thus, on the answers as they presently stand, the applicant in this Court would be barred, would it not, from contending that there was a previous exclusive possession act.
GLEESON CJ: And pursuing a strike-out application.
MR BASTEN: Yes.
HAYNE J: Which seems to leave them in a position where their rights have been determined on a basis which seems never to have been agitated, or at least agitated directly and squarely by the questions that are presented.
MR BASTEN: Well, your Honour, they formulated the questions and presented them - - -
GUMMOW J: That is the problem. The real attack, it seems to me, has to be on Justice Beaumont's order at page 13 of the application book. That is to say, the order which put these questions. That order, it seems to me, should not have been made.
MR BASTEN: Not in those terms.
GUMMOW J: Well, it should not have been made. It should not have been made, as a matter of discretion, because the strike-out procedure should have been followed.
MR BASTEN: I see, yes.
GUMMOW J: Should not have been made on another footing, that there is to be expressed anyway, because they ignored the Act.
MR BASTEN: Yes. Well, I suppose there are - - -
GUMMOW J: But is there any complaint in this course about that order? Has anybody complained against it, in this Court? There is not, is there?
MR BASTEN: There is no challenge to that order.
GUMMOW J: No, the challenge is to the order answering the questions.
MR BASTEN: That is so, in a particular way.
GUMMOW J: Given the form of the questions, the second error is inevitable.
MR BASTEN: Well, it was not a happy experience, your Honour, but in Bass v The Permanent Trustee the same situation arose in a different way and this Court - - -
GUMMOW J: I know. The message of Bass does not seem to have been heard.
MR BASTEN: No. But there was no challenge to the form of the orders - I am so sorry, there was no challenge to the question in that case either but the court answered the questions "inappropriate to answer" and it may be that that was - - -
GAUDRON J: You say if special leave is granted those answers should be substituted and the appeal allowed? Rather, that is the way in which those answers should be substituted?
GUMMOW J: What would the answers be again?
MR BASTEN: Well, it may just be "inappropriate to answer".
GUMMOW J: As to all of them?
MR BASTEN: Yes. We formulated them in a slightly different way because obviously the practical consequences of the exercise are unfortunate.
HAYNE J: But the point is not one of procedural pedantry. The point is one about underlying rights of parties. We argued in favour of "inappropriate to answer" in the court below on the same basis.
GLEESON CJ: What is your submission as to the course we should take if we accepted Mr Jackson's argument that this lease granted a right of exclusive possession within the meaning of the Native Title Act?
MR BASTEN: Well, that question is not asked either, nor does the reasoning in the court below deal with it, so we would have thought it was inappropriate to answer the questions in their present form in that event, too.
CALLINAN J: Are there any facts not before us that we would need to know in order to answer that question?
MR BASTEN: Your Honour, there was a statement of agreed facts, which were the facts before the Court and the facts before your Honours, and they appear at page 26 - - -
CALLINAN J: Plus everything that is in the documents.
MR BASTEN: Plus the documentary material, though one has to be a bit wary about the factual inferences one might draw from that. I took your Honour to the plan. I mean, there appear to be tracks across the plan, but there is no evidence about what those dotted lines actually are. So that in a sense the statement of agreed facts is the material, together with the lease.
CALLINAN J: It just strikes me as being really not very satisfactory for us not to decide as much as we can decide when you think of the amount of time and money. There are issues here we can decide, are there not?
MR BASTEN: There are, in a sense, your Honour. The ultimate result is the difficult question. We have said all along that we thought the questions were inappropriate. Your Honours will see that the original order of Justice Beaumont started with the words "By consent". Those have been crossed out for a good reason. We never consented to the form of the questions and we made that clear.
CALLINAN J: Could you have appealed against Justice Beaumont's order?
MR BASTEN: Yes, but that would not have achieved any more, one would have thought, than saying, "These questions are inappropriate to answer".
GUMMOW J: You would have needed leave.
MR BASTEN: We would have needed leave, yes. That is so, your Honour.
CALLINAN J: It is in everybody's interests, I would have thought, to try to.
MR BASTEN: I do not wish to raise difficulties and that was why we sought to provide answers which are technically subject to objection. I accede to that proposition for the very reason that your Honour is putting to me.
KIRBY J: Justice Callinan's remarks remind me of mine in Bass, but they did not carry the day.
MR BASTEN: They are indelibly imprinted on my mind, your Honour.
KIRBY J: I hope so.
MR BASTEN: If your Honours please.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Birch.
MR BIRCH: Your Honours, our position is consistent with that that has been outlined by Mr Basten and I will not therefore repeat a large amount of material which he has already covered, and we are in full agreement with him and adopt his submissions. We have also indicated in our written outline where we adopt substantial portions of what has been said by the third respondent.
I want to concentrate on one special issue, which appears to us to be the nub of the case, that is, whether or not there ought to have been a finding that there was complete extinguishment by the grant of the lease in this particular instance. In the written submissions we preserved some ambivalence about whether that should be answered in the context of the Native Title Act. That was, in part, because of the course that had been taken by the Full Court, and the debate your Honours have just had with Mr Basten raises the issue because the questions that were posed, in fact, asked whether there had been extinguishment solely by reference to the lease or solely by reference to the Western Lands Act. They, by necessary implication, did not include reference to the Native Title Act in the manner in which they were posed. With respect to what was said by my learned friend Mr Jackson yesterday, it would probably require an amendment of those questions in order to bring them in accord with a determination that the matter was to be decided by reference to the Native Title Act.
GLEESON CJ: Where the questions appear, again, where in the order?
MR BIRCH: Your Honours, I have them marked at pages 10 and 11 in volume 1 of the appeal book. That is actually the form in which they occurred in the motion, your Honours. I understand that is the form in which they were ultimately dealt with by the court, but - - -
GLEESON CJ: Well now, just look at question (b). The question is whether the lease conferred a right to exclusive possession.
MR BIRCH: Yes.
GLEESON CJ: Well now, the right to exclusive possession, if it was conferred at all, was not conferred by the Native Title Act.
MR BIRCH: True.
GLEESON CJ: Is there anything except the Western Lands Act, the regulations thereunder and the lease, which could have conferred a right to exclusive possession within the meaning of that expression and the Native Title Act? Why should not the question be read in the light of the existence of the Native Title Act?
MR BIRCH: When your Honour puts it to me like that I am not going to stand in the path of that course. I am mindful of what Justice Callinan said a short moment ago. I am not seeking to suggest that the Court should abandon the exercise - - -
GUMMOW J: It is really this expression "a right to exclusive possession" in the sense of that term in the Native Title Act, is it not, which may, for all I know, be different in this fluctuating common law that seems to be going on in England?
MR BIRCH: Your Honour, the substance of what I am going to say is that, in fact, it does not mean what it might mean in a grant of a lease at common law. That the section - - -
GUMMOW J: It cannot because by definition it is not a lease.
MR BIRCH: Well, that is one of my first arguments. I would put an argument: even if there had been a grant of a lease for a term that it would not necessarily have the meaning in section 248A that it would have in an implied ground of exclusive possession - - -
GUMMOW J: These notions of "right to exclusive possession" lease seems the flip side of each other, but they cannot be.
GLEESON CJ: Now if the expression "a right to exclusive possession" is ambiguous, that is, if as a matter of understanding question (b) the expression of "a right to exclusive possession" is ambiguous, why should not the question be interpreted as being relevant?
MR BIRCH: Well, if one reads the questions as asking whether there has been exclusive possession granted and one views that as embedded in the statutory issue about whether there has been extinguishment under the Native Title Act, then I suppose there is no objection that could be taken to that course. I am not attempting to frustrate that course, I should add, your Honours.
GLEESON CJ: What would you say about the question if it had been framed as though there were added to it the words "within the meaning of the Native Title Act"?
MR BIRCH: Then it would raise perfectly the issue which is actually the one that has been argued before the Court for the last day and a half.
GLEESON CJ: Well then, my question to you is, why should not the entirety be read as though those words were added to it, which is only another way of saying, why should not the question be interpreted as being a relevant question?
MR BIRCH: Your Honour, as I had only taken the words "by virtue only of" where they appeared in (a) as precluding that reading - but if the Court - - -
GLEESON CJ: But I think we agreed earlier that the Native Title Act cannot confer a right to exclusive possession.
MR BIRCH: Yes, I take your Honour's point. Perhaps my reading was not the only one available; perhaps it was not the best reading. I am not going to stand in the way of the Court's answering the questions in a fashion that sees them embedded in the Act. Your Honour, perhaps I can say this then, that while I expressed ambivalence about whether that could be done in the written submissions, what I want to say today acknowledges that the question about whether there has been extinguishment must be answered in the context set by the Native Title Act, the Commonwealth and State Act, and that is really the issue.
McHUGH J: I know that has been the theory upon which the argument has tended to proceed and the assumption has been that one has to look at the past acts regime, but why can you not get a more direct answer by reason of section 223(1)(c)? That is to say that there are no rights - these rights and interests are not recognised by the common law of Australia, because they have been extinguished at common law.
MR BIRCH: What your Honour really, perhaps, puts to me is this, that if there had been an extinguishment in 1955 - - -
McHUGH J: Yes.
MR BIRCH: - - - then we do not have to concern ourselves with the effect of the Act. As I understand all those who have spoken before me - and I am not going to seek to disagree with them - what I understand is put is this, that when one looks to the provisions in Division 2B that deal with confirmation of extinguishment, they now, wherever they are relevant, speak about the way one must view what occurred in 1955, even though, of course, those provisions themselves were passed many years later. So that it would be possible that although at common law there could have been an extinguishment, there is not now deemed to be one, or that there might not have been, but there is now deemed to be one.
I apprehend that that is the view that is taken by all at the Bar table because that is the way the wording of Division 2B drives one - that it speaks about the way in which extinguishment has occurred, so that it does not leave scope for side-stepping its terms by simply asking the question: well, what did happen in 1955?
McHUGH J: I understand that. I am not persuaded that is the only way to go. It seems to me to fasten on one particular part of the Act without looking at the Act overall. It seems to me, at the moment, that there is still scope, plenty of scope, for the past acts regime to deal with situations other than those which the appellants rely on in this particular case.
MR BIRCH: Your Honour, I will decline the offer to argue extensively that the view that I have just put forward is the one that ought to be adopted, because what I am going to propose is a construction of the Act in regard to confirmation of extinguishment that will produce an identical result with what would have happened before the 1998 amendments. So it is an academic issue from the point of view that I take.
McHUGH J: I think that is so, but it just seems to me easier to answer the questions if you approach it through 223, because the questions then put before you then what is an essential element in determining what would be in issue at 223. If you answer the questions in one way or the other, then it brings you straight into 223 territory. In other words, it is not a right or interest that is recognised or that they are rights that can be recognised because they have not been extinguished.
MR BIRCH: That is undoubtedly true, although the central issue for this particular case is extinguishment. There is an assumption that there are interests there that would have been recognised for the purposes of the argument that we are having. So the question is really: what is the appropriate test for extinguishment? Is it a modified version of the common law test or has the provisions of Division 2B brought about a new statutory test which allows us to ignore the reasoning and learning in Wik and the common law cases that came before it.
McHUGH J: It seems to be a real question of constitutional validity if rights that were extinguished are somehow or other now brought into existence and then extinguished again, or deemed to be extinguished in some way. But that is another issue.
MR BIRCH: Yes.
McHUGH J: If the native title rights were extinguished, what has happened? Have they been brought into existence and then extinguished again immediately? That would seem to raise questions of whether or not compensation is required.
MR BIRCH: Your Honour, that is the only criticism that I can level at the way in which the questions were formulated, because they did not by expressly referring to the Native Title Act bring before the Full Federal Court - the Full Federal Court did not treat itself as being seized with the sorts of issues to which your Honour is now referring. The invitation is interesting but it is the wrong time for me perhaps to try and accept it and open up those matters.
KIRBY J: Are those matters part of the matter before this Court now on the record?
MR BIRCH: They are not, your Honour, and that is why I am reluctant to open that up but, on the other hand, I know that those are issues which are of interest and concern to some of the litigants.
McHUGH J: But it is a reason that if you go the "past acts" path may cause you to say that it is not appropriate to answer these questions, having regard to the way the question is presently framed.
MR BIRCH: Your Honour, I have indicated that I would not stand in the way of the Court giving an answer.
McHUGH J: Yes.
GUMMOW J: This is the past Act.
MR BIRCH: Yes, I am reluctant to seize the chance to say that therefore it should not be answered and take back what I said a few moments ago, but it is a disadvantage of the fashion in which it has come to this Court that those matters were never raised directly and it is probably not appropriate for me now to seize them because of this oblique way that they have come.
McHUGH J: Yes, but for the moment anyway, the thought occurs to me that because those questions may be lurking out there, having regard to the terms of the question, it is not appropriate to answer them if you are going to use the past acts regime as the path to seek to answer the stated questions, the order 29 questions.
MR BIRCH: Well, your Honour, I cannot say that they are not lurking out there. All I can say is that I suppose I would not wish to stand now here as an obstacle to a question being given to whether or not the phrase "exclusive possession" in 248A has a particular meaning or not.
KIRBY J: If this Court were to refuse special leave or were to confirm the decision of the Full Court of the answers, orders of the Full Court, then the lurking can still go on.
MR BIRCH: That is correct.
KIRBY J: It can lurk to the point that it becomes an issue in proceedings, which is the usual way in which matters come to Federal Courts for resolution.
MR BIRCH: That is true. I was also, like Mr Basten, here during the Bass v Homefund issue and, of course, what happened there was the matter went back, but it did not go back without any message from the Court. I suppose there is always the scope of providing some answer, even if the appeal is not granted in the terms in which it is sought.
Your Honours, could I perhaps present you with my answer to the question about what the phrase "exclusive possession" means in 248A of the Act because that appears to be the central issue that has been debated, whether it has been properly brought here, and then finally return to what ought to happen with the litigation.
I would like to introduce it by way an example in order to try and pinpoint the crucial issue which is the principles that govern extinguishment, rather than concentrating on the nature of the grant that was made by the Crown in this particular instance. If I could ask your Honours to make the following assumptions for the purposes of my example or thought experiment. Assume that the land in issue, rather than having been Crown land in the form it was, was land which the Crown held as registered proprietor under the relevant State Torrens registration system and that it was subject to an easement in favour of a neighbouring or adjoining owner for access which was a registered interest.
GUMMOW J: Sorry, what did you say about the Torrens system?
MR BIRCH: I said if one could just assume for the purposes of my hypothetical that the Crown was the registered proprietor of land that this land was under the Torrens scheme. In other words, I am asking your Honour to assume counter-factually - - -
GUMMOW J: To what end?
MR BIRCH: Well, my next assumption is to ask your Honours to assume that Parliament has legislated to empower a Minister to grant leases and that he has granted such lease and I want to then explore the way in which one would answer the question, "Was the easement that existed extinguished?". I want to do that because I hope that that will allow me to show what the appropriate test is and that it would be the same test that we would apply to the particular facts we have in this case.
GUMMOW J: But you are in the rule of the Torrens title. Are you talking about unregistered interests or you are talking about section 42, are you not, of the Real Property Act?
MR BIRCH: If one assumes that there was in fact a registered interest then - - -
GUMMOW J: That is the end of the matter.
MR BIRCH: That would be the end of the matter where there was a lease granted by a private citizen to another private citizen.
GUMMOW J: But 42 will tell you what unregistered interests are saved, otherwise the doctrine of indefeasibility applies, I suppose.
MR BIRCH: Indeed, your Honour, unless one was to find that when Parliament had legislated to empower the granting of leases it had impliedly suspended or repealed so much of the Torrens system as upheld or defended the easement in issue.
GUMMOW J: Yes, but the last question I would rush into is the relation between the Torrens title and unregistered interests and native title interests.
MR BIRCH: Your Honour, I am choosing this example because what I want to do is to highlight the presumptions that would apply and the principles that would come into play if one asked - - -
GUMMOW J: Well, you take your own course.
MR BIRCH: Yes. If one asked, in that particular instance, whether or not the easement was extinguished, it could not be extinguished, of course, in a grant of citizen to citizen. It could have been extinguished where - - -
GAUDRON J: Who is this easement in favour of?
MR BIRCH: In favour of an adjoining landowner for access across the property.
GAUDRON J: Yes.
MR BIRCH: Where there has been Act passed and that Act has empowered a minister to grant leases, one could ask the question, in those circumstances - - -
GUMMOW J: The question is the relationship, then, between that Act, the State Act, and another State Act, the Real Property Act.
MR BIRCH: Yes.
GUMMOW J: The South Eastern Drainage Board Case in this Court in the 1940s deals with that sort of problem, does it not - - -
MR BIRCH: Your Honour, it does. Well, the solution, of course, is the conventional one. One simply asks whether the later Act has extinguished the right that was granted by the earlier one and in doing that one is engaged in a simple exercise of construing the later Act to determine whether such an intention has been evinced by the language of the statute and the grant that has been made under it. The purpose of my example, though, can be illustrated in this fashion. If you are trying to answer the question, "Was the easement extinguished?", it does not assist to ask, "What was the nature of the lease that was granted? Was it a common law lease?"
If it had been a lease granted by the Minister exercising his statutory power that contained an implied grant of exclusive possession, it would still be quite feasible that that was a grant subject to pre-existing interests that had already been created in regard to the land, so that the question of extinguishment will not be able to be answered simply by saying, "Was there a grant of exclusive possession or was there a lease which granted exclusive possession in that common law sense?"
GLEESON CJ: But it is not inconsistent with a lessee having a right of exclusive possession of land that there is, for example, a statutory easement which permits people to put overhead powerlines over the land and a statutory right in employees of the instrumentality that erected the powerlines to come on and inspect them and from time to time cut huge swathes between the trees.
MR BIRCH: Yes, that is true. Well, your Honour, the implied grant of exclusive possession that would be conveyed by the grant of a normal lease would usually be subject to any number of interests carved out of it by various statutes. It would often be found to have been subject to various pre-existing interests in the land.
The point of my example, I suppose, is to pick up that very point but say if we want to know whether or not any of these particular pre-existing interests have been extinguished, asking whether there was an implied grant of exclusive possession will be an uninformative way of solving that particular problem.
GLEESON CJ: That is the way the Native Title Act goes about it, is it not? I thought it was common ground that if you have here a grant of exclusive possession within the meaning of that expression in the Native Title Act, then native title rights and interests have been extinguished.
MR BIRCH: If it is within the meaning used in the Act, what I want to argue, and I am probably doing it rather laboriously, is that the use of that phrase in the Act is not the meaning that one would attribute to the phrase when one speaks of an implied grant of exclusive possession in the grant of a normal common law lease. The reasoning behind that is this, your Honours. The grant of a normal common law lease, with its implied grant of exclusive possession, may not extinguish prior property interests or prior rights in regard to the land.
If it does, it will do so because one will have answered the question "Was there an intention to extinguish?" affirmatively, and the extinguishment will have come about from the effect of the statute and the ministerial Act made under that statute. What one has that brings about the extinguishment is not simply the grant of a common law interest but the grant of a common law interest coupled with, if you wish, a legislative intention to bring about extinguishment. When one looks to the way in which this issue was dealt with by the majority judgments in Wik - - -
GUMMOW J: It is Fejo that you are attacking in some way, I think.
MR BIRCH: No, not at all, your Honour. I used the example of a registered proprietor and a pre-existing registered easement because it was a convenient instance of a pre-existing property right that would be thought to survive the grant of a common law lease, but I am not seeking to suggest that the principles that have been enunciated on fee simple should be disturbed.
GUMMOW J: The Act assumes that those principles apply to leases. That is the way in which it is drafted.
MR BIRCH: The Native Title Act?
GUMMOW J: Yes.
MR BIRCH: Well, your Honour, that is assuming that the phrase "exclusive possession" has a particular meaning. What I am seeking to argue is the phrase "exclusive possession" means a right to exclude the interests of prior holders of rights in regard to the land. It does not necessarily connote the sense that one means when one refers to an implied grant of exclusive possession under a common law lease which of itself will not always extinguish prior existing interests.
Your Honours, when one looks at the majority judgments in Wik, the phrase "exclusive possession" is interpreted in this more stringent fashion. Mr Basten yesterday referred to the passage from his Honour Justice Toohey's judgment, which we have referred to also in paragraph 24 of our submissions, where we make this point, that:
possession exclusive of all rights and interests of the indigenous habitants whose occupation derived from their traditional title -
is the meaning to be given to "exclusive possession". Indeed, we have referred also to the passage from your Honour Justice Gummow from Wik - - -
KIRBY J: You had better put the page references to these. Where was Justice Toohey's?
MR BIRCH: Justice Toohey's passage was at page 122 in the CLR. I have set these out in paragraph 24 of our written submissions, your Honour. The passage we take from your Honour Justice Gummow's judgment in Wik at page 195 dealt with the difficulty of using common law terms such as "demise" and "lease" in order to determine whether or not the effect had been to extinguish a subsisting interest in the land. While Justice Toohey and your Honour Justice Gummow have made those points clear in the passages that we have referred to - - -
GLEESON CJ: Would you mind just going back to page 122. Which is the particular part of that page that you are referring to? Is it the sentence beginning, "There is nothing in the statute" which is about the fifth sentence on the page?
MR BIRCH: Sorry, your Honour, I took it from my submissions. No, I do not think that is right.
GLEESON CJ: That is why I really just want to read the judgment rather than your submissions.
MR BIRCH: Yes, that is right. It is a little further up that paragraph, your Honour, where Justice Toohey said:
There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title.
Than his Honour went on to say:
In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession.
GLEESON CJ: You take that to suggest, do you, that the expression "exclusive possession" in this context, means something different from the meaning it had at common law?
MR BIRCH: Yes, in this sense, that while one could grant a lease which carried an implied grant of exclusive possession, one might find that grant was subject to existing rights. If that were the case, then one would not say at common law there had not been a grant of exclusive possession. For example, say in the current lease there had been an express reservation protecting the interests of the native title holders, and there had also been an express grant of exclusive possession in that common law sense, those two would not be seen to necessarily collide with each other.
GLEESON CJ: An alternative possible point of view is not that the expression "exclusive possession" changes its meaning according to the context, but rather that, in this particular context, when you are thinking about a right of exclusive possession, your thinking is focused upon "possession, exclusive of all rights and interests in the indigenous inhabitants whose occupation derived from their traditional title". That does not mean the meaning of the expression changes, it just means that in this context your gaze is concentrated.
GUMMOW J: The bottom line is: could you sue them in trespass or could you eject them or, in more modern times, obtain an order for possession against them? That is the bottom line, is it not?
MR BIRCH: With respect, that is not the way we would view it.
GUMMOW J: Are those remedies trespass in terms of damages, order for possession in terms of mandatory order? Is their availability a consequence of the existence of this exclusive possession right?
MR BIRCH: But if one was to view the test in that way, then it would open up a number of anomalous possibilities. A lease could grant on the one hand a right to the tenant to maintain actions in trespass or ejectment. If it be a statutory lease, of course the legislature can mix these concepts up as it sees fit. It could grant of right of bringing ejectment or trespass on the one hand and on the other reserve - - -
GUMMOW J: When I say "indigenous inhabitants", I mean indigenous inhabitants relying on their native title.
MR BIRCH: It could permit an action in ejectment to be brought by the tenants but exempt them from being able to bring that sort of action against native title holders. If one offers the question of whether the lessee can bring ejectment as the acid test for whether there has been extinguishment, then that would potentially collide with the possibility that an instrument could be granted that combines the two. If, for instance, the lease had granted the lessee a right of bringing an action in ejectment but had reserved the native title holders' interests, then it would satisfy the common law test for having exclusive possession in one sense while on the other hand it had plainly not intended to extinguish their rights.
It would be odd in that situation to say that there had been extinguishment for the purposes of the Act despite an express intention in the instrument to preserve the rights of native title holders. One avoids those sorts of dilemmas by reading the phrase "exclusive possession", not in the sense of right of ejectment or right to maintain trespass, but meaning more stringently a right to exclude pre-existing holders of interests in the land.
GLEESON CJ: As I understand it, the reason why a right of exclusive possession as an incident of tenure is inconsistent with native title, if it exists, is that to say that you have a right of exclusive possession means that you can say, "I can decide who may or may not come onto this land and I don't have to justify my decision. I don't have to convince anybody I'm being reasonable. I can just decide who can come and who can't come". If that is an incident of your title, that is inconsistent with, amongst other things, people coming onto your land to hunt kangaroos.
MR BIRCH: Your Honour, that is certainly the case. I am not seeking to differ from that proposition. If there has been a grant of exclusive possession in the common law sense, as I have been using that term, it would still be possible that one might find the legislature had not intended to empower the Minister to grant that in a fashion that extinguished pre-existing rights. Therefore, while the lessee would have the right to make some decisions about certain people being able to come upon the land - intermeddlers, squatters, third parties or the like - it would not have conferred a right to exclude people there by a prior lawful interest.
If, however, the nature of the interest granted was one inconsistent with exercising access, for instance, because the grant had conferred upon the lessees such rights to perform activities that involved extensive use of the land only capable of being maintained if they had an unfettered discretion about who they admitted or did not admit, then one would have found the inconsistency demonstrated by the statute, one would find there had been extinguishment.
GLEESON CJ: I can understand why the existence or the possibility of the existence of native title might be a reason for being slow to conclude that there has been a grant of exclusive possession, but at the moment I have some difficulty in understanding that the concept of exclusive possession is different in the Native Title Act by reason of that circumstance. The Native Title Act talks about exclusive possession as though people who read the Act know what it means.
MR BIRCH: Your Honour, when one reads the expression in the Act, the natural reading of it, in my submission, is that it is a grant which has an extinguishing effect on prior rights. What I have been seeking to urge is that one could have granted that exclusive possession in that common law sense in a simple common law lease which would not have extinguishing effect. I suppose the difficulty is that it uses the phrase "exclusive possession", which is an incident of a normal common law lease which granted citizen to citizen, as I said earlier, cannot have an extinguishing effect. The extinguishing effect will come only from a grant that is made by the Crown or made by an official acting under authority of the legislature.
GLEESON CJ: It is impossible, is it not, in construing the Act to ignore the fact that it is a legislative response to decisions of this Court, Mabo and Wik?
MR BIRCH: Indeed.
GLEESON CJ: And whatever the Act was talking about when it referred to exclusive possession, it looks as though, does it not, it was talking about whatever this Court was talking about when it referred to exclusive possession?
MR BIRCH: Your Honour, that is precisely what I am putting to the Court, that when one reads the phrase "exclusive possession" in the Act, one reads the phrase as it was deployed by the majority Judges in Wik. I have referred your Honour to the passage of Justice Toohey. We have set out in paragraph 24 a passage from your Honour Justice Gummow's judgment which we say tends in that direction. We say that the judgments of each of the four Judges depend ultimately upon the principle that one only finds extinguishment if one finds that on the plain and clear intention of this statute and the grant made under it there has been extinguishment.
McHUGH J: But that seems to lead to the conclusion that the legislation has been ineffective, does it not, that all the Holroyd-type leases are still subject to native title?
MR BIRCH: Well, what it leads to is the conclusion that the Act did not alter the result that one would have got by applying the principles derived from the Wik judgment to later cases.
McHUGH J: So Wik still stands unaffected by the Native Title Act?
MR BIRCH: It is not unaffected, because the context in which one now embarks on the inquiry is structured by the statute and there are a number of changes that have been made. One, for example, is that the Act makes clear that extinguishment is permanent - something which might not have been entirely clear when the Wik judgment was delivered - but that so far as whether or not a pastoral lease affects extinguishment is concerned, the Act has not worked a change. Your Honours, there is one section of the Act which - - -
McHUGH J: But that still means, does it not, that the legislation has been ineffective to overcome Wik?
MR BIRCH: We argue that the legislation was not intended to overcome Wik; that the legislation was intended to clarify implications that flow from Wik, and to an extent the legislation was intended to confirm some aspects of Wik.
KIRBY J: You could have fooled me. I mean, we do not live in a total cocoon.
MR BIRCH: Your Honours, there are - - -
GLEESON CJ: You say the legislation provides thimblefuls of extinguishment.
MR BIRCH: Yes. Your Honours, perhaps if I could go to a section that I wanted to refer to, 249C, because it uses the phrase "exclusive possession" in a context which is consistent with what we are putting forward. That deals with additional interests to the schedule, because, of course, there were some interests that were included in the schedule so as to put the issue of extinguishment beyond doubt and there was power conferred on the Governor-General to declare further interests. In 249C(3), it provided that in order for those to be added:
the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.
The wording is not just to a right of exclusive possession but to a right of exclusive possession that extinguishes all native title rights. What I am urging is that where one sees that phrase, "a right of exclusive possession", that, in effect, is the way it ought to be read, that it is a reference to something which extinguishes native title rights.
GUMMOW J: So is it the position that if one looks at Schedule 1 and one sees that certain leases under section 23 of the Western Lands Act are scheduled interests, but not this particular species, that this particular species could be translated into a scheduled interest?
MR BIRCH: No, we would not suggest that, your Honour. We would suggest that the provision for addition of interests would be read as being - - -
GUMMOW J: Wait a minute. Translated by purely federal action? The power conferred by 249C(3) is in the Governor-General.
MR BIRCH: Yes, true.
GUMMOW J: So, nothing under the State Native Title Act can change the state of affairs, can it, as to scheduled interest?
MR BIRCH: One would not think so, but one would conclude that the provision to add further interests ought to be read consistently with the general provisions that deal with extinguishment, so that, for example, rather than litigating, for instance, whether there has been an interest granted which is an exclusive possession interest under Division 2B, one could deal with that issue by having an interest scheduled. It would seem to make more sense of the Act to conclude that what was intended was that those interests could only be added if they passed a test that was at least as stringent as the one provided in the general extinguishment provision.
CALLINAN J: Would the Minister's decision be reviewable at all, the Minister's state of satisfaction?
MR BIRCH: Your Honour, one imagines it is possible that it would come under the Administrative Decisions (Judicial Review) Act, but I do not know whether it has been exempt or not.
CALLINAN J: It is a curious provision. No, it is a curious provision, is it not? Really, it removes from the courts the sort of decision that has generally been left to the Court by this Act.
MR BIRCH: Yes, true. It is a curious provision but, on the other hand, what I am urging is that the protection built into that provision is the stringency of what must be found in regard to the grant of exclusive possession.
CALLINAN J: But it is difficult to see how some of the scheduled interests could confer otherwise or could be compatible with other than exclusive possession. If you look, for example, at section 3 in Schedule 1, under the Western Lands Act and the various other Lands Acts, accommodation building, for example, it is difficult to imagine how it could be otherwise, why you would even need to schedule that.
MR BIRCH: Well, your Honour, I suppose the virtue of the schedule is that it eliminates entirely the prospect that there will be a - - -
CALLINAN J: A claim.
MR BIRCH: - - - a claim or a case. The schedule serves the purpose of taking away from the court - or saving the parties the expense of a case where it would have been thought to have been unarguable by those that were involved in drafting the Act.
Your Honours, I have already suggested that one reads the phrase "exclusive possession" in the fashion that it was used in Wik. I have already argued how one would read the phrase "exclusive possession" from the judgments in Wik. There are two further reasons why we urge that one would adopt that reading of section 248A. They are partly that the Attorney when he introduced the 1998 amendments in the second reading speech referred to the court's intention of abiding by Mabo and Wik. In the terms that have been set out by us in our written submissions, we have quoted a passage and the remainder of that second reading speech is annexed to those submissions. We have set out the passage from the Attorney's second reading speech in paragraph 57 of our submissions.
We say that they show that there was not an intention on the part of the legislature to cause some sort of revolution in the way in which one determined whether or not there had been extinguishment, that the guiding principle of the Wik judgment was what might be called the "inconsistency of incidents" test in that there was no legislative intention of overthrowing that, that therefore that is a further reason. Finally, we point to the headings in the legislation speaking of confirmation which suggest that what was being done, legislatively, was a form of statutory confirmation of what had been already decided by this Court.
Those are the reasons why we urge the particular reading of the phrase in 248A that we do. There are two further matters that I wanted to come to. That is, how does one apply the test? If I could pick up here something that your Honour the Chief Justice said to me a few moments ago that whichever way one reads the phrase "exclusive possession", the finding that there has been a grant of exclusive possession might be made more hesitantly where the consequence will be the extinguishment of pre-existing rights.
That is perhaps as important if not a more important principle that can be gleaned from the majority judgments in Wik than the references often made to "exclusive possession" from that case and that one adopts that course is clear. We have set out in paragraph 20 and 21 the passages from each of the majority judgments in Wik which urge that one has to apply with caution a finding of exclusive possession where it would have extinguishing effect.
Then that brings one, finally, to ask whether or not in regard to the Western Lands Act itself and the lease that has been granted one recognises the requisite intention to extinguish. The arguments that have been presented by the appellant, in our submission, have not grappled with this particular problem. What has been argued by the appellant is an indirect route to finding whether or not there has been an extinguishment of native title rights. The appellant has invited the Court to embark on an inquiry to find whether there was a grant of exclusive possession in the common law sense. That will not answer the question whether there was a manifest intent or a manifest effect of extinguishment. In particular, when one looks at the incidents granted by the lease there is, of course, no express grant of exclusive possession itself.
GUMMOW J: There never is, is there?
MR BIRCH: It would be probably uncommon, your Honour, I would accept that. It would be - - -
GUMMOW J: Have you ever seen a lease - an ordinary lease in conveyancing that says that? It comes out of a demise, does it not?
MR BIRCH: It is sometimes said to be an implied grant, and that is a weakness of the appellant's case here, because when one is depending upon an implication then one would be less inclined to make that implication where the effect of it would be to be extinguish. There was a question asked yesterday as to whether there was nevertheless an implied covenant of quiet enjoyment brought about by the provisions of the Conveyancing Act. Our inquiries thus far suggest that there would not be. The provision of the Conveyancing Act that deals expressly with the Western Lands Act is section 6.
Section 6 itself is contained in volume 8 the appeal book, at page 1581, and the further relevant provisions of the Conveyancing Act are not included in the appeal book. I have had those copied, and if it is convenient, I would seek to just hand up a small bundle containing those additional pages. Section 6(2) provides that the:
Act shall not be construed as affecting the provisions of -
setting up then various statutes, including the Western Lands Act. I would accept that there is a distinction in the language between section 6(1) which provides that it "not apply to lands" under the Real Property Act 1993 . Section 6(2) provides it is not to "affect the provisions of the Crown Lands Consolidation Act". It would be our submission that one would treat section 6(2) as having the effect that where the Minister exercises the power to grant a lease, the exercise of that power will not be affected by the implication of any implied covenant of quiet enjoyment.
If I was right in assuming that the implied covenant which was being referred to yesterday was the covenant implied by section 86, which is the covenant of quiet enjoyment, being covenant 21 in the Fourth Schedule, then that section, section 86, falls in Part VI of the Conveyancing Act. Section 69 provides that that part shall not apply, except in:
Divisions 2 and 3 . . . to land under the provisions of the Real Property Act.
Section 86 to which we referred is in Division 3, but there is no reference in section 69 to any attempt to apply it to leases under the Western Lands Act.
GUMMOW J: Yes, thank you.
MR BIRCH: Your Honours, the lease in question contains no provision which by its terms confers any power to exclude all people or people having prior interest in the land, or anything of that sort. I will not go through the detailed clause by clause distinction. That has been done in great detail in the written submissions put forward by Mr Basten and we adopt those. What we say, however, is that when one looks at it, it is clear that there is not anything that has been properly identified - the onus here presumably being at least persuasively upon the appellants - to show something which will have the extinguishing effect that I have referred to. Without that there cannot be a proper establishment that there has been a right of exclusive possession in the section 248 sense.
Your Honour, for those reasons, we say that the interests that are claimed by the native title holders could not be said to have been conclusively extinguished. Can I just go back to the questions and the way in which the matter was dealt with by the Full Federal Court. The Federal Court made a finding to that effect in the judgments of the Chief Justice and Justice Sackville at paragraph 140 where, after having reviewed the various provisions, they said:
For the reasons we have given, the WLA should be construed as contemplating the grant of leases that do not necessarily extinguish all native title rights existing in relation to land subject to the leases. This conclusion goes a considerable distance to resolving the effect of the Lease in the present proceedings so far as native title rights are concerned. The reason is that the critical provisions of the Lease, of necessity, reflect the requirements of the WLA. As a matter of construction of the Lease, the rights conferred on the lessee are not necessarily inconsistent with the exercise of every incident of native title that may exist in relation to the Leased Land.
The answer that is given by his Honour the Chief Justice and Justice Sackville at paragraph 140 is an answer to the question, "Has there been a grant of exclusive possession under 248A?". In effect, their Honours are saying, "No, there has not been". That is the only way one could read that finding consistently with the legal issues that were before them and that is a finding which we support, of course.
HAYNE J: As to that, and as to the form of answers that might be given to these questions, would it be open to this Court, if it took the view, to substitute a single answer for questions (a) and (b) which would read according to the outcome of the debate that has been had, either, "Save to say that the lease did -" or on the alternative outcome, "Save to say that the lease did not confer upon the lessee a right of exclusive possession over the land, the subject of the lease, as the expression, `a right of exclusive possession over the land' is used in section 23B(2)(viii) and section 248A of the Native Title Act, it is inappropriate to answer questions (a) and (b)".
Then again, according to the outcome of the answers thus given, either to answer question (c), if an affirmative answer is given to the earlier questions, "By operation of sections 23B and 23E of the Native Title Act 1993 and section 20 of the Native Title (New South Wales) Act 1994 , the grant of the lease extinguished any native title in relation to the land covered by the lease and the extinguishment is to be taken to have happened when the lease was granted, save as aforesaid inappropriate to answer", or if a negative answer has been given to the first pair of questions, "This question does not arise". What would you say to the adoption of answers along that set of lines?
MR BIRCH: Your Honour, if I might just paraphrase what I think your Honour has said to make sure I have grasped it, that in effect, if one asks the question whether there has been a grant of exclusive possession, as that phrase is given meaning in the Native Title Act 1913 , then it is firstly inappropriate to answer the original questions that were posed, but then one proceeds to ask and answer the question.
HAYNE J: But I am not proposing any amendment to the question; I am simply proposing a speaking answer, the kind commonly given in the old originating summons jurisdiction - give a speaking answer that says we will give you this answer, otherwise no answer.
KIRBY J: There is a question of whether it is an advance on "It is strictly unnecessary to answer the question, but". I mean, that is a question that has to be considered.
MR BIRCH: Yes. Your Honour, I would not have any opposition to that course. As I understand it, where the Court would be making clear that the phrase "exclusive possession" is being used by it as it appears in the Native Title Act, and no doubt the Court will express its view as to what that phrase means in the Act.
GAUDRON J: Those suggested answers, or answers for discussion, refer to 248A which relates, of course, to a pastoral lease. May we take it that there is no dissent at the Bar table from the proposition that the western lands lease in question in this case is a pastoral lease as defined in section 248 of the Act?
MR BIRCH: I think that means there is no dissent, your Honour. There is certainly no dissent from me.
GUMMOW J: It seems to be about maintaining animals, at any rate. The word "grazing" is used.
MR BIRCH: Yes. Your Honours, those are my submissions.
GLEESON CJ: Thank you, Mr Birch. Yes, Mr Jackson.
MR BASTEN: Your Honour, might I have the indulgence to say two things before my friend replies? These are things that arose: firstly, his Honour Justice McHugh raised the possibility of reliance on 223(1)(c). It may be that that point will not arise. The argument that we put in 5.1 to 5.6 of our submissions did not address that and no one raised that. The issue about the construction of 223(1)(c) is obviously a live one of which this Court is aware. If the Court were inclined to address it, then we would seek an opportunity to put some brief submission in writing as to how we would construe it.
GLEESON CJ: I think we have been down this track before. You put an argument, do you not, that it means rights of the kind?
MR BASTEN: Yes.
GLEESON CJ: It is a generic concept.
`
MR BASTEN: Yes, and that extinguishment is to be reflected under 225 as to whether the rights exist. Maybe your Honours already know the argument; I have not put the argument for this client. Maybe it is sufficient if your Honours are conscious of that argument and I can simply adopt that, but - - -
GLEESON CJ: That argument came up in Ward, did it not?
MR BASTEN: I think it was Yarmirr more significantly, your Honour. It is just a matter as to whether, for the purpose of the other parties being fully apprised of the issue, I should do it in writing. Would that be convenient?
GLEESON CJ: Yes, thank you.
MR BASTEN: The other thing I wish to say, your Honours, is in relation to the scheduled interests. What the Commonwealth Act does is to define the parameters within which the State can act in relation to acts attributable to itself. So it is not the act of the Commonwealth in including a western lands lease - not this one, but others - within the schedule, which has any effect; it is the effect of sections 19 and 20 of the State Act which give effect to it and some States have not given effect to all of the - - -
GUMMOW J: But this one has. New South Wales has.
MR BASTEN: This has, 19 and 20 go, to the extent of - - -
GUMMOW J: But section 20 is ambulatory, in a sense, is it not? Because if you look at section 20, when it picks up section 23B(2), that then picks up the schedule, does it not?
MR BASTEN: Yes.
GUMMOW J: And the schedule itself could expand through the federal mechanism.
MR BASTEN: Yes, well, that is an interesting question, but it appears to be ambulatory, your Honour. Whether it is intended in that way, I do not - can I leave that to one side?
GUMMOW J: All right.
MR BASTEN: There is obviously an issue. In relation to your Honour Justice Hayne's question, we would accept the way your Honour put it, but I thought I heard your Honour refer to 23B(2)(c)(viii). We would say that, consistently with reference to 248, one would refer to 23B(2)(c)(iv).
GUMMOW J: As well.
MR BASTEN: Well, it might be as well, but that would be the logical - - -
GUMMOW J: It would have to be as well, would it not, otherwise all the doors have not been shut?
MR BASTEN: Yes. I do not know if there is any argument about it, but it would just be the logical way to present the answer, possibly, with reference to it as well, in the event. Thank you, your Honour.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I hand the Court something on behalf of Mr Pauling, some further extracts from "Elements of Land Law". May I turn immediately to the appropriateness of the questions and what would be appropriate answers to them. Justice Gummow referred to the fact that the Native Title Act contemplates that a lease for the purposes of that Act may not be a lease at common law. That is clearly correct, of course, because of the definition of "lease" in section 242(1) of the Act. Your Honours will see, in particular, paragraph (c) and also, of course, paragraph (b), but paragraph (c) of section 242(1) being the one that, most relevantly, is capable of expanding the meaning of "lease".
Now, your Honours, that could have the result that something was not a lease under the general law is a pastoral lease, as defined by section 248. If I can take your Honours then to that because "A pastoral lease is a lease that", and your Honours will see what is there set out. But, pastoral leases are then divided into two categories: exclusive pastoral leases dealt with by section 248A and non-exclusive pastoral leases dealt with by section 248B.
The definition of "Exclusive pastoral lease" in 248A contains two parts. Your Honours will see:
(b) is a Scheduled interest.
And:
(a) confers a right of exclusive possession over the land -
et cetera. Now, your Honours, the term "scheduled interest" your Honours have seen it is defined by section 249C. This is not a scheduled interest. No one suggests or has suggested that it is. That takes one out of section 248A(b). The question which then remains, your Honours, is whether, in terms of paragraph (a) of the definition of "exclusive pastoral lease", whether that provision is applicable, that is the provision of section 248A(a). Your Honours, that that is a relevant question appears from, if one goes back to section 23B - section 23B(2)(c)(iv) which refers to:
an exclusive . . . pastoral lease -
as set out in 248A and also, of course, paragraph (viii):
any lease (other than a mining lease) that confers a right of exclusive possession over particular land -
Now, your Honours will see paragraph (viii) uses the words:
confers a right of exclusive possession over particular land -
and they are the same words as are used in paragraph (a) of the definition of "exclusive pastoral lease" in section 248A(a).
They are exactly the words used in questions (a) and (b) and your Honours will see those questions set out, for example, in volume 15, page 3031 in paragraph 1 of the order of the Full Court.
GAUDRON J: It might be a nice question, but is "lease" defined in an extended way?
MR JACKSON: Yes, it is, your Honour.
GAUDRON J: Yes, any lease?
MR JACKSON: Well, it is more than - "lease" as such, your Honour, is defined - - -
GAUDRON J: In 242.
MR JACKSON: Yes, in an expansive way to include, in effect, what is decreed to be a lease by statute. But the point I am seeking to make about it, your Honour, is that when one starts from that point of view, in order for the issue that arises in this case, one goes steadily through the provisions and it becomes apparent that the questions that are asked as questions (a) and (b) use the words "confer . . . a right to exclusive possession" over land which are the core words in the provisions of paragraph 8 and paragraph 4 of the terms of section 23B(2)(c).
Could I just say also one is not speaking about questions which arose in a kind of abstract balloon somewhere. They arose in litigation in which a claim was made over land including the lease. Your Honours, one of the core questions in those proceedings was whether they must fail because there had been "a previous exclusive possession act". Your Honours will see that expression used in section 61A(2)(a). If I could just take your Honours to that for a moment, your Honours will see that section 61A(2)(a) says:
If:
(a) a previous exclusive possession act -
defined by section 23B to which I have taken your Honours -
was done in relation to an area -
and your Honours will see the requirements of (b) satisfied -
a claimant application must not be made that covers any of the area.
That was a central issue in the case, a central issue which is raised by the questions that are asked which direct one's attention to the very provisions that are involved. Apart from procedurally being an important question in the proceedings, it is also a question which lies at the heart of the proceedings, not only because of section 61A but also substantively because of the provision in section 20(1)(a) of the State Act.
Your Honours will see from that provision that section 20(1) says that:
If an act is a previous exclusive possession act under section 23B(2) . . . and is attributable to the State:
(a) the act extinguishes any native title in relation to the land or waters covered by the . . . lease concerned -
So, your Honours, it gets rid of - I do not mean that in any offensive way, but it extinguishes any native title in relation to the land. So that one is able to see by the resolution of a question which, if your Honours go, for example, to section 248A - if I can go back there for just one moment - that one is looking to see, in answering that question, whether the pastoral lease defined in section 248 "is a pastoral lease that: (a) confers", and your Honours will see what is set out there. So that is the question.
So far as procedure is concerned, the matter was in the Federal Court. That court had jurisdiction to hear and determine it - your Honours will see section 81 of the Native Title Act which confers jurisdiction, indeed, exclusive jurisdiction, on the Federal Court, apart from this Court, of course - and that the application was one that was deemed to be filed in the court. So the matter was in the Federal Court and the court by virtue of section 81 had jurisdiction to hear and determine it.
In doing so it had available to it its own procedures, including those relating to determining separate questions. An order was made in that regard pursuant to Order 29, rule 2, of its rules, and the direction that the matter be heard by the Full Court was done pursuant to section 20(1)(a).
So, your Honours, that was the course that was taken in relation to it. Your Honours, one comes then to the way in which the questions might be answered. Could I give your Honours a document? It contains two things. One of them is something I want to say in a moment about the Crown Lands Consolidation Act, but the last page contains a suggested answer to the questions. Now, your Honours, could I say that - and, in fact, the first answer you will see on the page is simply, putting in perhaps slightly different words what your Honour Justice Hayne said a moment ago as the first possible answer.
But, your Honours, could I just say about it, your Honours will see that we have said question (a) or question (b), the reasons why questions (a) and (b) were framed as they were - and indeed it may well be that they are not, in fact, different - was simply that one view might be that one looked only at the legislation at question (a), the other view being one looked at the legislation plus the lease. That is question (b).
But, your Honours, the answer that we would submit is an appropriate answer, in that regard, is to say that the lease conferred on the lessee, a right to exclusive possession of the leased land, which is simply to say, "Yes", in an extended fashion, within the meaning of that term. Your Honours, this is exactly the way in which the issue arose. In paragraph (a) of the definition of "exclusive pastoral lease" in section 248A and section 23B(2)(c)(viii). Your Honours, that, in our submission - - -
GLEESON CJ: Why not section 23B(2)(c)(iv) and (viii)?
MR JACKSON: Well, because, your Honour, that is covered by (a) and, your Honour - - -
GUMMOW J: Let us say (a) should be modified to indicate that that definition was then picked up in (iv).
MR JACKSON: Yes, your Honour. The reason why I put them - - -
GUMMOW J: I understand why you have done it.
MR JACKSON: - - -slightly differently is simply this, that if one goes to 23B(2)(c)(iv) you will see that it refers to "exclusive pastoral lease" and that definition is capable of comprehending more than one thing.
GUMMOW J: Yes, that is right.
MR JACKSON: That is why this reference is to paragraph A, your Honour. Your Honours, when one comes to question (c), question (c), we would submit, is simply one that one could answer either yes in (c)(i) because of the operation of section 20, but the answer would seem to follow from the answer to question (b). Your Honour, in one sense it may be unnecessary to answer question (c) at all, because the consequences that derive from answering the earlier question, in the way in which we would suggest, would be apparent.
GUMMOW J: Actually in the question (c)(ii) is expressed as an alternative to (c)(i).
MR JACKSON: Yes, your Honour. Your Honours, that does not, in our submission, involve any alteration to the questions but, in our submission, it would be perfectly within (a) the Court's power in deciding an appeal to it to give the answer which might have been given by the court appealed from and, your Honour, the Federal Court itself might have given such answers in the exercise of the powers which it has, which are - I have not got the numbers of them at the moment - equivalent in effect to the power that this Court has pursuant to sections 31, 32 and those provisions.
GUMMOW J: It was exercising original jurisdictions.
MR JACKSON: It was, your Honour, yes. That is the first aspect with which I would seek to deal. The second aspect, your Honours, is this. Your Honours have seen reference made by our learned friends to the first page of the lease. May I take your Honours to it for a moment and in particular, the part that appears towards the bottom of it where it has the words:
AND FURTHER RESERVING unto US OUR HEIRS and SUCCESSORS -
Then that and the next two lines down to the words:
Crown Lands Consolidation Act -
The argument that was sought to be mounted based upon that was that the reference to the Crown Lands Consolidation Act 1913 meant that that Act - it was an indication that that Act and the Western Lands Act were to be read together.
Could I say two things about that, your Honours. The first is that where one sees the particular provision to which I have just referred in the lease, there might perhaps be an argument about whether it is simply indicating where a definition of "public purpose" is to be found, but the lease does go further. The relevant provision of the lease more substantively expressed is in clause 23, the printed clause at the bottom of the third page, where the proposition is expanded upon and your Honours will see paragraph (d) at the bottom of page 3 which covers the same area and again refers specifically to the Crown Lands Consolidation Act .
Your Honours, what one sees when one goes to the relevant provision of that Act is that it is one of the provisions of the Crown Lands Consolidation Act that, consistently with the proposition which is set out in section 4 of that Act dealing with the way in which it and the Western Lands Act are to operate, expressly deals with western lands. I took your Honours in passing yesterday to page 1286 in volume 7 where one sees this Act. It says in section 4:
This Act shall not be construed so as to affect (except where the contrary is expressly provided) the operation of any -
and we would say "any and all" -
provision contained in the -
if one goes three down, "Western Lands Act". Now, the provision of the Western Lands Act picked up by the lease, relevantly, in the passages to which I just referred, is section 233, which is at page 1469. Your Honours will see in subsection (2) of that that it does what section 4 contemplates, that is, it refers expressly to land "in the Western Division". Your Honours will see it says:
The Governor may withdraw from any pastoral homestead lease in the Western Division, or from any scrub lease, any land required for any public purpose including -
and your Honours will see the words used there are the same as the words used in clause 23(d) of the lease. Now, the other document I handed to your Honours, or the first few pages of it that we gave your Honours - I will not take your Honours to the detail of it, but your Honours will see what we have endeavoured to do in sections A and B is to do two things.
In section A, we have set out the provisions of the Crown Lands Consolidation Act and the place where they can be found in volume 7, where, when the provision is to apply to land under the Western Lands Act, it says so, and it says so, as section 4 says it would need to do so, expressly. So your Honours will see those provisions. We add a note at the bottom of the second page in relation to that, note 1, which says that the first few lines of section 74 appear intended to refer to all lands in all districts, and that is because section 4 is a little unusually, for the Act, framed.
In section B, what we have set out there are provisions of the Act which either expressly exclude western district lands or refer expressly to lands in other districts. Could we say, in relation to that, as we say in note 2, we think that is almost everything but we may have left out one or two provisions.
Your Honours, could we turn then to just one thing about reservations? There is, of course, no reservation in relation to dealing with Aboriginal persons in the lease in this case, and one does not see any reference in the enactment. Our learned friend, Mr Basten, said, "Where is the starting point?". Well, your Honours, if one is looking to see what the starting point is in cases like this where, as your Honours have pointed out, the statute directs one to look for exclusive possession, that is something in which one does derive some assistance from looking at the Act which gives power to grant something it calls a lease and that the instrument that is produced from it is a lease.
Your Honours, could I just say also, and it is a minor point in a sense, but we did not accept, your Honours, that there were native title rights before the lease. What I said, your Honours, and your Honours will see this in yesterday's transcript at page 7, paragraph 220, was that if there were native title rights, we accepted that they had not been extinguished prior to this lease.
Your Honours, a question was asked also about the power in relation to travelling stock routes. The power is not - I am sorry, your Honours, I should indicate what I am endeavouring to speak about. A question was asked about the ambit of the reservation, in effect, allowing the creation of stock routes through the lease. Your Honours will see that that is referred to in Schedule I, paragraph (l), of the schedule to the Act, in volume 1 at page 120, but the power to create such routes is found in section 41(2) of the Western Lands Act that your Honours will see set out at page 117 of volume 1.
Your Honours, the last thing to which I wish to advert is this, that your Honour Justice Gummow asked what the position was about the land being brought under the Real Property Act. Your Honour, could we endeavour to give your Honours something in paper that we can put exactly what the position is in relation to that and whether any - your Honour, we do not think anything turns on it in the end, but whether anything might turn on it in combination with that.
GUMMOW J: Yes, thank you, Mr Jackson. What is that stock route section you just referred to?
MR JACKSON: Section 41(2), I think it was, your Honour.
GUMMOW J: Section 41(2).
MR JACKSON: It is page 129.
GUMMOW J: Yes, I have it, thank you.
MR JACKSON: So, your Honours, may we do that in relation to that - do so within the next few days. Those are our submissions.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 12.57 PM THE MATTER WAS ADJOURNED
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