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Ben Ward & Ors v Crosswalk Pty Ltd & Ors P67/2000 [2001] HCATrans 73 (6 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

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

Second Respondents

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

Office of the Registry

Perth No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

Second Respondents

Office of the Registry

Perth No P63 of 2000

B e t w e e n -

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Fourth Respondents

ON BEHALF OF THE BALANGARRA PEOPLES

Fifth Respondents

Office of the Registry

Perth No P67 of 2000

B e t w e e n -

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

Second Respondents

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

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

Seventh Respondents

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

Eighth Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 MARCH 2001, AT 10.17 AM

GLEESON CJ: I understand, before appearances are announced, that there are some applications for leave to intervene. We will deal with those first. It will be sufficient at the beginning if people seeking leave to intervene identify themselves and then we can ask whether there is any opposition to the application and then hear argument in support of the application if there is any opposition. Who seeks leave to intervene?

MR J.L. SHER, QC: If the Court pleases, I appear with my learned friend, MR M.T. RITTER. We seek leave to intervene in matter No P 67 on behalf of the Goldfields Land Council. (instructed by the Goldfields Land Council Aboriginal Corporation)

GLEESON CJ: Is there any objection to that application? What is the next application?

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If it please the Court, I appear for the Commonwealth of Australia with my learned friends, DR M.A. PERRY and MR J.S. STELLIOS. We seek leave to intervene in the appeals other than P67 and P59. In those matters we intervene pursuant to section 78A of the Judiciary Act 1904 . (instructed by the Australian Government Solicitor)

GLEESON CJ: Is there any objection to that application? What is the next application?

MR G.E. HILEY, QC: If the Court pleases, I seek leave to appear on behalf of the Pastoralists and Graziers Association of WA (Inc.) in matter No P67. (instructed by the Pastoralists and Graziers Association of WA (Inc.))

GLEESON CJ: Is that opposed by any party?

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MS S.T. HELLAMS, for the Attorney-General for South Australia. To the extent necessary, we seek leave to intervene in all appeals. (instructed by the Crown Solicitor for South Australia)

GLEESON CJ: Is that application opposed?

MR B.W. WALKER, SC: May it please, your Honours, I appear with my learned friend, MS S.E. PRITCHARD, for the Human Rights and Equal Opportunity Commission, seeking leave to intervene in all appeals. (instructed by the Human Rights and Equal Opportunity Commission)

GLEESON CJ: Is that application opposed?

MR G.M.G. McINTYRE: If the Court pleases, I appear with my learned friend, MR D.L. RITTER, on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation, seeking leave to intervene in all appeals. (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

GLEESON CJ: Is that application opposed? Are there any other applications?

MR C.F. THOMSON: If the Court pleases, I appear for Mirimbiak Nations Aboriginal Corporation, seeking leave to intervene in the matter of P67. (instructed by the Mirimbiak Nations Aboriginal Corporation)

GLEESON CJ: Is that opposed? Are there any other applications? All those applications for leave to intervene are granted. In relation to appearances, there is no need for counsel to announce their appearances. We will take them and they will be entered on the record in accordance with the Court list today.

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friends, MR C.J.L.PULLIN, QC and MR K.M. PETTIT, for the appellant in P59 of 2000, and for the fifth respondent in P67 of 2000. (instructed by the Crown Solicitor for Western Australia

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: If the Court pleases, I appear with my learned friend, MS R.J. WEBB, for the Attorney-General of the Northern Territory in P62, P63 and P67 of 2000. (instructed by the Solicitor for the Northern Territory)

MR M.L. BARKER, QC: May it please the Court, I appear with my learned friend, MR R.H. BARTLETT, for the appellants in P67, who are also respondents in the other matters. (instructed by the Aboriginal Legal Service of Western Australia (Inc)).

MR J. BASTEN, QC: If the Court pleases, I appear with my learned friends, MR K.R. HOWIE, SC and MR S.A. GLACKEN, for the appellants in P63 of 2000, Cecil Ningarmara and Others, who are the second and other respondents in the other appeals. (instructed by the Northern Land Council)

MR W. SOFRONOFF, QC: If the Court pleases pleases, I appear with my learned friend, MR G.M.G. McINTYRE, for the fourth and sixth respondents in P67 of 2000. third respondent in P59 and the fifth respondent in P63. (instructed by the Kimberley Land Council)

MR B. O'LOUGHLIN: If the Court pleases, I appear for the second respondent in P63 of 2000, the Conservation Land Corporation. (instructed by Clayton Utz)

MR H.B. FRASER, QC: If the Court pleases, I appear with my learned friend, MR K.R. JAGGER, for the eighth respondents in P67 of 2000. (instructed by Freehills)

MS N. JOHNSON, QC: If the Court pleases, I appear with my learned friend, MR M.T. McKENNA, for the first respondents in P67 of 2000. (instructed by Hunt & Humphry)

MR D.W. McLEOD: If the Court pleases, I appear with my learned friend, MR P.L. WITTKUHN, for the seventh respondents in P67 of 2000. (instructed by McLeod & Co).

GLEESON CJ: Yes, Mr Barker.

MR MEADOWS: Your Honour, before my learned friend commences, there are one or two things I wish to refer to. As the Court will be aware, the State of Western Australia has had a change of instructions, and this has resulted in the abandonment of a number of grounds of appeal, proposed cross-appeal, and contentions. I wish to tender a minute, if I may, setting out the grounds and contentions abandoned and one consequential amendment to contention 10. To the extent that it is necessary, we seek leave to abandon those grounds and contentions and to make the consequential amendment.

GLEESON CJ: You have that leave.

MR MEADOWS: Thank you, your Honour. As the Court will also be aware, we filed amended submissions yesterday. Unfortunately, we have found some minor errors in those amended submissions, and we will be lodging an errata which corrects those errors. They are fairly minor.

GLEESON CJ: Somebody might find some major errors in them.

MR MEADOWS: I beg your pardon, your Honour?

GLEESON CJ: It does not matter.

MR MEADOWS: I would also ask the Court to note that the tabs which were attached to our original submissions are still relevant and should be kept, as they will be referred to. I would also inform the Court that we will

be filing an amended proposed determination in lieu of that, at pages 930 to 938 of the appeal book. This is also consequential upon our change in.

instructions. I should mention as well that there is a notice of motion seeking revocation of one of the grounds of the grant of special leave to appeal

GLEESON CJ: We can deal with that in due course, when we find out more about what the case is about, Mr Solicitor.

MR MEADOWS: Yes, I appreciate that, your Honour. I just wanted to foreshadow that there will be an amendment to that notice of motion which we will be filing. We have already foreshadowed that amendment. Subject, of course, to the agreement of the Court, we would suggest that that should be dealt with in the course of the appeal. May it please the Court.

GLEESON CJ: Yes, Mr Solicitor. Mr Barker.

MR BARKER: May it please the Court. We appeal from the decision of the majority in the court below resulting in the extinguishment of native title in much of the claim area, the subject of the original application for native title. Your Honours, if I can take you immediately to the submissions of Western Australia which do have the tabs in them that the Solicitor has just referred to - they were the ones dated 16 February 2001 - and ask you to go to tab A in that bundle. There is a big map entitled Miriuwung Gajerrong Determination.

GLEESON CJ: Just a minute.

MR BARKER: I inquire of your Honour the Chief Justice whether that map appears there?

GLEESON CJ: No. Whatever you are looking at I am looking at something different.

MR BARKER: The State yesterday filed some amended submissions to take account of their withdrawals but these are the previous set of submissions that still have the tabs that are relevant, and, as I say, it is tab A in that set of submissions.

GLEESON CJ: Go ahead, Mr Barker.

MR BARKER: The map indicates in the legend on the right that the areas where the court below found native title was wholly extinguished. They are the brown coloured portions, and they include an area which is and adjacent to Lake Argyle to the south of the area depicted on the map. There are areas marked green where the majority found partial extinguishment and they go to the north of that claim area. At the top of that claim area that portion might be generally referred to as the intertidal zone, or, more colloquially, mudflats. Then there is an area coloured purple where the majority found that there was no extinguishment of native title and that includes some islands in the northern portion of that map, Lacrosse Island, Kanggurryu Island and Pelican Island, going from west to east.

The town of Kununurra, your Honours, is more or less in the middle of that map to the right of the words, "See Enlargements". The trial judge, Justice Lee, save in respect of some areas of freehold land, determined that there was no extinguishment of native title through that area. In short, we would seek to reinstate that determination. Your Honours, we have filed a revised outline of submissions which are dated 9 February 2001 and we adopt those submissions for the purposes of this appeal and we will seek to develop particular ones of them. We have filed this morning, although it is not particularly consequential for the submissions we make today, a note of amendments that we would make to those submissions as a result of the State's amendments.

The way we present our submissions to the Court identify four broad matters for determination here. The first of those broad matters concerns the nature and content of native title and it encompasses grounds 5, 16 and 23 and is dealt with in our written submissions in sections F and G. The second broad matter concerns the circumstances in which native title may be extinguished, whether or not partial extinguishment may occur under the common law. That matter encompasses grounds 1 to 4, 6 to 12, 15 and 17 to 22 and in our written submissions is covered by our sections H to O.

The third broad matter concerns the question whether certain legislative and executive acts done after the commencement of the Racial Discrimination Act in 1975 are, to use the terminology of the Native Title Act, and I quote, "past acts", as defined in section 228. That matter covers grounds 13 and 20 and dealt with in section P of our submissions. The fourth matter, which really is consequential and we would not need to rely on if we were to succeed on the first two broad matters, is a matter relating to the application of section 47B of the Native Title Act in the instant case and that is the subject of ground 14 and is dealt with in section Q of our submissions.

Your Honours, I will open by addressing the first broad matter, the nature and content of native title, a question of partial extinguishment and related matters. Dr Bartlett, who appears with me, will address the second broad matter of extinguishment, or most of those matters, and tomorrow morning, on the timetable that we are running on, I will complete the last two matters that I have mentioned.

Your Honours, turning to the first broad matter then, the nature and content of native title, as I say, our written submissions, at sections F and G from pages 9 to 16, address the issues that arise in this context pertaining to, firstly, partial extinguishment, secondly, the extent of rights in respect of natural resources and thirdly, the existence of a right in respect of cultural knowledge.

In relation to partial extinguishment, the majority in the court below, at paragraphs 109 and 110 - - -

KIRBY J: Could you just help me how this treatment that you are now going into overlaps with the second of the issues that you mention? I realise that all of these things overlap to some extent.

MR BARKER: Yes, but, Your Honour, I think the overlap though is minimal in relation to the broad extinguishment question. We raise the question of partial extinguishment as specifically in relation to the nature and content of native title to make an argument that, in short, says this: that if the nature and content of native title is a right to the land itself, it follows, as a matter of legal principle, that there cannot partial extinguishment. That is the principle that the primary judge applied and why he effectively found there was not extinguishment through much of the claim area. What we say in the second broad section that your Honour refers to is this, that, even if we are wrong about that, the principles pertaining to extinguishment need still to be dealt with and they go beyond the question of partial extinguishment.

The finding of the court below is set out at paragraph 11 of our written submissions. Your Honours will see from that quotation we have provided there that the majority expressed the opinion that:

the rights and interests of indigenous people which together make up native title are aptly described as a "bundle of rights".

Without seeking to read further from that, your Honours will appreciate the view taken by the majority was that the sticks in that bundle could be extinguished one by one so that there could be partial extinguishment of the incidence or rights of a native title and that they might be extinguished cumulatively; and, furthermore, that a native title that might start out with the character of a proprietary interest could be so reduced in content that it would not longer have that character.

HAYNE J: Now, this is to begin examination into a degree of abstraction or generality. At some point do you not have to grapple with exactly what were the rights and interests possessed under traditional laws acknowledged and traditional customs observed that were found, whether by the trial judge or the Full Court, to exist in this case?

MR BARKER: We say two things about that. First, I will bring the Court to the trial judge's findings, which are set out relevantly in his judgment, but we do argue at a broader level, but we say not at a level of abstraction that the Court is not concerned with, that on a proper analysis the native title here in a case such as this where the applicant group through their predecessor community occupied exclusively the claim area at sovereignty held then and hold today a right of occupation. That is the native title right that exists here. It justifies the determination made by the trial judge and, indeed, repeated in the ways I have indicated by the court below of an order that there is a right to possession, occupation, use and enjoyment of the determination area.

McHUGH J: Do you not go further and argue that that means a right to the land itself?

MR BARKER: Indeed, we do, your Honour, and we say that that is the legal consequence of having a right to occupation of the land in the circumstances I have described or seek to develop, particularly by reference to what his Honour Justice Brennan had said in Mabo [No 2].

McHUGH J: What has happened in the jurisprudence to the dictum of Justice Blackburn in Milirrpum's Case when he said that the clan belongs to the land rather than the land belonging to the clan?

MR BARKER: Well, with respect, your Honour, I am not sure that anything has happened if the implication is that it has been lost. In our submission, if you like, the concept that is redolent in that statement is also reflected in what the joint judgment of this Court in Yanner v Eaton said about the connection of an Aboriginal group being based on spiritual, cultural and social aspects is what underlies a native title. I am paraphrasing but - - -

McHUGH J: The reason I asked you was because it seemed to me to be inconsistent with your submission that native title was a right to the land itself, at least in parts of Australia.

MR BARKER: Well, your Honour, we do not see any inconsistency at all. If I may be permitted to make immediately one observation in respect of Justice Blackburn's comments in that case. That action was run on prevailing anthropological theory at the time that the proper land owning group of Aboriginal people were a plan or perhaps in modern terminology that anthropologists have tended to use, an estate group, but to the exclusion of other people who might have rights and interests in it.

Justice Toohey, in Mabo [No 2], I think at about page 190, remarked that Justice Blackburn, having found that that claim failed and indicating that the evidence did not seem to match the anthropological submissions that were made to the Court, could have possibly been framed in terms of a people making the application for title and a broader group of people in the other society actually holding the native title itself. Indeed, we say that is what happened in, of course, the Mabo [No 2] decision.

It is not the individual clans or families on the island who are found to hold the title, but the people themselves. That is exactly what Justice Lee at first instance here has found. So the concept of belonging to the country that we say is strong, it is evidenced here in this case, and it justifies the view that the people, here the Miriuwung and Gajerrong people, occupied this claim area at sovereignty, and that is the underlying title that is native title.

HAYNE J: But is there a slide in that proposition that needs to be identified? That they occupied the land at sovereignty may be accepted for the purposes of the present debate, but occupation may be no more than a statement of fact. The relevant inquiry, at least at first blush, would seem to me to be the statutory inquiry of what were the rights and interests possessed, et cetera. That inquiry, at least, is not self-evidently answered by a statement of fact, "They occupied the land."

It may be, as Justice McHugh's questions invite attention to, that there is in truth a flipping occurring here, from propositions reduced to undue simplicity, which are, "The land owns the people", "The land is the people", to, "The people own the land". At some point, as I say, it seems to me we have to come out of a level of theoretical discourse down to particular factual findings about what were rights and interests possessed, et cetera. You are at the very early stages of your submissions, but at some point, it seems to me, we need to get down to that level of specificity.

MR BARKER: Your Honour, I intend to go to it quite soon, by commencing with a closer analysis of what Justice Brennan found in Mabo [No 2], because, in our submission, much is to be gained from that closer analysis. We say, with respect, that there is equally a slide involved in saying that the only rights and interests that exist in an indigenous system are those that are merely reflected by a set of currently acknowledged laws and customs. There is something more at play. If I may seek to develop that submission. I will not linger at this point. I think I have indicated it sufficiently and it is clear from the judgment that the majority below did find that there was a right to exclusive possession, et cetera, in the areas I have indicated and that in other areas where native title had not been extinguished it was a right to possession.

The difference between the two, of course, was that in the one they attached the word "exclusive" and in the other they did not, but the right was a similar one. The majority arrived at that position by considering all of the evidence that had been led in the case and, I think, if not expressly, by clear implication, found that the evidence showed so much activity of different types by the applicant community that they were entitled to have that type of enjoyment classified as a proprietary interest, exclusive or not exclusive, but, in our submission, their follow-up analysis, that it was only a bundle of rights and each could be extinguished, fails.

KIRBY J: You seem to be starting your submissions with the common law. You are going back to Mabo and to what Justice Brennan said and so on.

MR BARKER: Yes, I am, your Honour.

KIRBY J: Is not the starting point now, the river having moved on, the statute, because the people in Parliament have, as it were, taken another step? Recognition by the common law is one element in what Parliament has provided, but the starting point now is surely the Act of the Federal Parliament.

MR BARKER: We accept that, and section 223 has, I think, been focused on in this Court previously, including in recent submissions in the Croker Island appeal and it has also been considered recently in other Federal Court cases. Our simple response is that the position has not changed with the enactment of section 223, that the position at common law, both in relation to the nature of native title and its content and the circumstances in which it will be found to exist is unaltered by the enactment of section 223(1).

KIRBY J: Except that notions of property normally do not conjure up notions of spirituality. They are very important in the question of property rights of Aboriginal Australians and spirituality is specifically recognised in the Act and therefore we are dealing with a hybrid kind of concept, both by the common law and by the Act, of property and the legitimacy of that is found in the statute itself.

MR BARKER: It reflects the common law, with respect, your Honour. The common law has acknowledged, as this Court did, for example, in the joint judgment in Yanner of the aspects of which your Honour has mentioned. The Court on a number of occasions has referred to what his Honour Justice Brennan said in Ex parte Meneling concerning native title or Aboriginal traditional ownership being primarily a spiritual affair but not only that. We do not see anything in the Act which deprecates that view and the common law is specifically recognised, of course, in section 223(1)(c).

KIRBY J: I was not suggesting an inconsistency, I was suggesting that that might be the answer to the link with Justice Blackburn's notion of the people belonging to the land, that this is the spiritual element of attachment which is not one found in the tenures theory of English Law but is one that we have to try somehow to reconcile to our system of land tenure once you take the step of recognising Aboriginal native title.

MR BARKER: Yes. We certainly agree, your Honour. We would see nothing, as I say, in the Act which cuts across that and indeed the common law recognises that, in the sense, of course, that the common law recognises that there is an indigenous system. Where it has survived it operates according to its own rights and the evidence before the Court, as in the Milirrpum Case that has been referred to, as in the Mabo decision, as in the evidence in this case before the trial judge reflects that underlying spirituality, so it is that type of case, particularly, that we do have here as well.

The evidence is replete with dreaming stories by the Aboriginal witnesses, some of which were for men or for women only and many for which are shared openly within the community. So, there is that underlying spiritual basis to the connection that has been made out and found by the trial judge and upheld by the court below, unanimously.

CALLINAN J: Mr Barker, do you say that section 223 enacts the ratio of Mabo [No 2]? Is that your submission that it adds nothing, that it really is intended to be a reflection or an enactment of what was decided in Mabo [No 2]?

MR BARKER: In essence, your Honour, yes.

CALLINAN J: It goes no further and it certainly is not less than what was said there?

MR BARKER: Certainly not less than, your Honour. I think it seeks to clarify in some respects, for example, by making it clear that usufructuary rights to hunt and fish and the like - - -

CALLINAN J: But that was said in Mabo [No 2].

MR BARKER: Yes, I agree. It seeks to do no more than reflect the common law and that is - - -

CALLINAN J: And as stated in Mabo [No 2].

MR BARKER: Yes. Your Honour, I would just mention in passing - it does not appear in our written submissions - that the Full Federal Court in the decision of Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 which I think has been referred to by one or other of the other parties in these proceedings that does include a discussion of the preferable view of their Honours in the majority - they are Justices Branson and Katz - of section 223. That appears at paragraph [108] of that decision. In general terms, we would accept that analysis.

CALLINAN J: You adopt that, do you?

MR BARKER: We perhaps can come back to that later. The question of the nature of the rights and the question his Honour Justice Hayne pressed me with a few moments ago is reflected, we say, in some of the findings of the primary judge. Can I ask your Honours to go to the report.

GUMMOW J: In doing that, Mr Barker, you took us to paragraph [109] and [110] of the Full Court majority which is set out in your paragraph 11.

MR BARKER: Yes.

GUMMOW J: Is there a particular paragraph in Justice Lee's decision which is the other side of that coin, in other words, which states what you say should be the position?

MR BARKER: Yes there is. I am taking your Honour to that judgment now which, I think, is No 1 on our list[1998] FCA 1478; , 159 ALR 483.

GUMMOW J: Is it at page 510?

MR BARKER: Page 508, I think, your Honour, to answer your Honour Justice Gummow's question. Really there is a discussion commencing the previous page, but ultimately the critical passage, I think, is that commencing at about line 4 on 508:

Native title at common law is a communal "right to land" -

And his Honour proceeds thereafter to observe:

It is not a mere "bundle of rights" -

He makes reference to the Canadian Supreme Court decision in Delgamuukw, which we also rely on here, and talks about the fact that partial extinguishment does not follow as a mater of law from that.

McHUGH J: Mr Barker, does your submission on this point require the rejection or modification of Wik in any way, the actual decision in Wik?

MR BARKER: No, we say it does not. We, your Honour, with respect, say that the question of whether native title can be partially extinguished has not been fairly and squarely dealt with by this Court. We note in our submissions, and will note again in these oral submissions, that there are dicta standing against us, but, properly understood, there is not such a concept. The question of inconsistency - - -

McHUGH J: Do you accept that Wik appears, at least, to proceed on the basis that native title is a bundle of rights?

MR BARKER: We see Wik this way, your Honour, that it had to compare the rights given to a pastoralist under the Queensland legislation with rights that come with a native title to see whether the native title had been extinguished and, of course, one of the problems was the rights that came with the native title had not been clarified by the evidence and any findings. There is plainly some dicta there to suggest that it is a simple exercise of comparing one with the other to see what is left, and that is all that native title then would be, but we say that if there is no necessary inconsistency between the native title and the pastoralist's rights in that circumstance, then you do not have extinguishment, you have impairment, and you will not be able to do a lot of things under your native title, but there is no necessary - - -

McHUGH J: I understand how you seek to reconcile the two cases. It just seemed to me that you may have been on stronger ground in relying on Justice Brennan in Mabo if Wik had not been decided the way it was, paradoxical as that might seem.

MR BARKER: Yes. Your Honour, the majority Judges in Wik - we just make the point now, of course, by reference to Justice Toohey's postscript, I think at page 133 - left the question of suspension of native title open and for that reason, in particular, we say the question of extinguishment, as far as the majority was concerned there, was left unresolved because, of course, if there can be a suspension, and we say there can, then there is no extinguishment, it would only be inconsistency in enjoyment.

GUMMOW J: This reliance on Chief Justice Lamer's judgment in Delgamuukw by Justice Lee does not quite explain or highlight the emphasis in the Canadian case on their constitutional provision, does it,

on section 35(1)? In other words, the Chief Justice was talking on one hand about Aboriginal rights, and there is a narrower element in that, Aboriginal title. They have this idea in Canada that we do not have, it seems to me, which influences a lot of the Canadian reasoning.

MR BARKER: They have an idea in Canada that we do not have, with respect, and that is section 35 of their Constitution, which recognises particular rights, but there has been an attempt to portray by perhaps others at the Bar table and on other occasions parties trying to portray the Canadian decision as being something from a remote part of the galaxy that really has taken the common law somewhere else, but, your Honour, we - - -

GUMMOW J: I was just referring to it because it is used by Justice Lee to bolster his conclusion which he reaches at the top of 508, which is inconsistent with the Full Court at paragraph [109].

MR BARKER: Yes. There is no doubt, your Honour, that Delgamuukw sets up a contrary proposition, that Justice Lee strongly relied on it and we, indeed, strongly rely on it here. We do not accept that on any proper reading of Delgamuukw the constitutional provisions infect the reasoning in a way that makes it inapplicable in the Australian common law.

GUMMOW J: That is an important question, I guess.

MR BARKER: It is an important question, and I would like to come back to that as well, if I could.

KIRBY J: Given the common problem, there would at least be some merit in, as it were, advancing on this issue in the two other jurisdictions which are common law jurisdictions which inherited the English notions of property law and which are now seeking to adjust their orthodox property law to the rights of the indigenous people, namely the United States and Canada. New Zealand had a different regime from a long way back. Rhodesia and South Africa had completely different regimes.

MR BARKER: Yes.

KIRBY J: Canada and - - -

GUMMOW J: But the rights of Canada refer to treaty rights of the British Crown, do they not, and the French Crown, if it comes to that, too?

MR BARKER: There are certainly differences, your Honours, in the historic treatment, which your Honours are obviously aware of, of the indigenous people in other countries that are or formerly part of the countries called the Commonwealth. But we say that in relation to the Delgamuukw analysis, it reflects a common law analysis and I will seek to demonstrate that to your Honours before long, if I may. This Court, of course, has drawn since Federation much guidance from countries such as the United States and their jurisprudence and Canada in more recent times. We do have a shared heritage, of course, in relation to the common law.

Your Honours, I think it would be best - - -

CALLINAN J: Mr Barker, in Yanner v Eaton in paragraphs [152] to [154] I tried to collect from Wik and Mabo all of the references I could find to the nature of native title and it was my recollection that consistently they are references to - expressions more consistent with a bundle of rights than with a proprietary interest of the kind that you are advocating.

MR BARKER: Yes.

CALLINAN J: I know I was in dissent, but I did try to collect all the references I could find and I could not find one that - I do not think there is one that really supports your submission.

MR BARKER: Well, I will seek to sway your Honour otherwise now. I recognise that your Honour was not alone in the views expressed in Yanner and - - -

CALLINAN J: No, no, I am just talking now, not about the views, but about the collection of the expressions that had been used in the cases until that time which were "incidents", "nature", "rights", "traditions", "customs" and "entitlements". I think it was a fairly comprehensive list.

MR BARKER: Your Honour, with respect, there are many of the relevant matters there. It is a question of, we submit, analysis of what his Honour has said on a closer examination. Can I take your Honours to the decision in Mabo [No 2] - - -

GAUDRON J: As you do that, Mr Barker, could I just say this to you: the expression "bundle of rights" is a common expression used in relation to all sorts of property because we do not really have a very good definition for it. But it is a metaphor and ultimately, as Justice Gummow has pointed out on many occasions, you do not get very far with proper analysis by relying on metaphors. So the question is, what are we really talking about? On one view, you are talking about a title with various incidents, or you are talking about separate titles for each of the incidents relating to the land. Is that right?

MR BARKER: Well, if the latter is right, your Honour, it would be, with respect, an absurd proposition.

GAUDRON J: I am thinking that you may be right, but I am just suggesting one is not going to get very far in this area just talking about a bundle of rights.

MR BARKER: Your Honour, we, with respect, agree and we would adopt the observations made in the joint judgment in Yanner to that effect, relying on Professor Gray developing that thesis. We also note what his Honour Justice Gummow said to similar effect in his judgment in Yanner. We think the "bundle of rights" expression is something, really, that is too easily proffered. It perhaps is referred to in the early days of property law in law schools, that it comprises a bundle of rights, and we do not think too much more about it after that.

We certainly submit that whatever application a "bundle of rights" theory has for the development of the general law in relation to such matters as the property and body parts, intellectual property and other things, that when we come to the native title dealing with different relationships with land than the mainstream community in this country are used to, the "bundle of rights" theory is not terribly apposite.

GAUDRON J: It does not seem to me to be so much a theory as possibly an inaccurate expression. I think we need different language.

MR BARKER: Yes. We have been happy to adopt it but, again, precisely in this way, that it is often said that a fee simple comprises the largest number of the bundle of rights that is known to the law and permits anything and everything imaginable to be done with the property to be done. We say that if that was the proper view of the bundle of rights then we adopt it in relation to a native title, but, of course, it is used in a different way here. It is literally talked about in relation to native title as a compendium of rights and interests. They are quivers, they are sticks in a bundle, and we reject that analysis.

It does bring me to what his Honour Justice Brennan did say in Mabo [No 2] which we seek to develop because we say it is this jurisprudence precisely that was adopted in Delgamuukw in the Supreme Court of Canada. Can I take your Honours to Mabo [No 2] - I think it is No 3 on our list - and take your Honours immediately to page 57 of Justice Brennan's reasons. It is the paragraph at about point 5 on the page following the heading "The nature and incidents of native title". This has been referred to regularly in the recent judgments of the Court:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Your Honours, we say that on a proper analysis, particularly when one goes to the rest of his Honour's judgment, that statement does not comprise a denial that there exists an underlying title that gives rise to rights and incidents as they have been described. We say that this is so because the existence of native title in the first place depends on there being an identifiable community which has laws and customs which identifiable community has maintained its connection with land by laws and customs today. Only if those matters are satisfied, does native title survive. When one appreciates that, it is obviously correct to say, as his Honour did, and meant to say, we say, that native title has its origin in and is given content by the traditional laws and customs.

GLEESON CJ: Who first used the expression "native title"?

MR BARKER: Your Honour, it was used, I think, by some of the parties in Mabo [No 2]. I think the expression "native title" was actually also referred to in Mabo (No 1).

GLEESON CJ: But you are not suggesting that the expression "native title" originated with a barrister?

MR BARKER: With a barrister?

GLEESON CJ: Yes.

MR BARKER: Your Honour, I will have to be helped and perhaps provide an answer to that later, but it seems to owe itself to a concept of indigenous title.

GLEESON CJ: I just noticed that on page 57 in the words in parentheses, Justice Brennan gives a definition of this term "native title".

MR BARKER: That is right. Other expressions were pressed on the Court, for example, Justice Toohey, I think, talked about Aboriginal title.

GLEESON CJ: But did the expression originate in Mabo [No 2]?

MR BARKER: I am being reminded, your Honour, an expression to the same effect or something like it was used in some of the early Privy Council cases.

GLEESON CJ: If you look at page 56, in the middle of page 56 in Justice Brennan in Mabo you will find a reference to "private native rights".

MR BARKER: Yes.

GLEESON CJ: But I just wondered who coined the phrase "native title"?

MR BARKER: Well, the Canadian Supreme Court, of course, has used the expression "aboriginal rights," and if one were appearing before the court afresh in relation to this matter, one might use the same sort of expression here. There may be a reason it was not, and that is because the indigenous people of Australia comprise not only the people referred to colloquially as Aboriginal Australians but also Torres Straight Islanders, your Honour.

GLEESON CJ: Let me ask the question slightly differently. Was the expression "native title" ever used by any court before the decision in Mabo [No 2].

MR BARKER: As a legal concept?

GLEESON CJ: Was the expression ever used by a court? If you answer that question yes, I will see if I can find out how it was used and what it was intended to mean.

MR BARKER: Yes. Your Honour, the expression was used in Mabo (No 1).

KIRBY J: I think you are right to say it was used by the Privy Council. I mean it is a very 19th century expression; that is why Justice Toohey did not like it much, but it has some authority in the sense that native peoples were referred to in those provisions of the Australian constitution which were deleted after the referendum. So it is a 19th century slightly pejorative word.

McHUGH J: It appears in one of the early New Zealand cases where they talk about "the rights of the native race", and if you look in Chief Justice Marshall's judgment in Johnson, he also refers to "natives". Now, I do not recollect the expression "native title" was used, but they talk about rights dominion residing in natives, rights of the native rights, and the "aboriginal title" was an expression used commonly. There is an article in 1986 by my namesake in New Zealand, which I think that is the very title of it, something to do with Aboriginal title.

HAYNE J: "Native title" appears in Amodu Tijani [1921] 2 AC 399 especially at 402, 403, the expression "native title" is to be found there, at least.

MR BARKER: We seem to be able to take the anthropology a little further back, your Honour, to case of Tamaki Baker - - -.

McHUGH J: Yes, [1901] AC. It is referred to in that.

MR BARKER: At [1901] AC at page 381 at about point eight on the page, and also in the headnote at page 371. Does that provide some help?

GLEESON CJ: Yes, thank you.

McHUGH J: In Tamaki the Judicial Committee refers to the "native title of possession and occupancy".

MR BARKER: Yes. We rely on that as well, your Honour. Thank you.

HAYNE J: This discussion serves to identify, does it not, the determination of Justice Lee was that the rights and interests included the right to possess, occupy, use and enjoy. To begin with Justice Brennan's comments in Mabo [No 2] at page 58, do you say that a right to possess the land - leave aside occupy, use and enjoy - is a right that has its origin in and has some content given by traditional law and custom?

MR BARKER: We say that native title has its origins or its origin - - -

HAYNE J: No, my question was more precise. Do you say that the right to possess the land is a right that has its origin in and has content given by traditional law and custom?

MR BARKER: The answer to that can be yes, and I think on the findings of fact in this case is yes. Can I take your Honour, perhaps just to deal with that issue, to his Honour the trial judge's findings at 159 ALR. Perhaps I can take your Honour to page 542 in the first instance. At about line 8 on that page, his Honour concluded that he was:

satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty -

So there is a specific finding concerning occupation. Without taking your Honours there, there are similar findings concerning occupation at page 540 between lines 34 and 51 and page 541 between lines 27 and 47.

As to the system of laws and customs which bears upon the question your Honour has asked me, if one goes to 541 of the report starting at about line 27 at about point 5 on the page, Justice Lee said this about the evidence:

The evidence adduced in this case demonstrated substantial consistency with the concept of a "tribal group" advanced by Professor Elkin in The Australian Aborigines . . . such a group is comprised of people related by actual and implied genealogy who occupy and are in a definite area of territory and hunt and gather food over it according to rules which control the behaviour of smaller groups and families within the tribe. The identity of the tribal group is reinforced by shared use and possession of language. The subgroups make the community work by acting as the economic units which take sustenance from, and are responsible for the upkeep of, the land and for the protection of sites of religious or ritual significance for the community according to traditional laws and customs that have been handed down from Dreamtime figures.

Then there is a further reference there to subgroup reliance, contacts, ties and understandings and the older people in the community in relation to secret matters. At page 542 from about line 8 really through towards the end of the page, there is a discussion by his Honour concerning the nature of those laws and customs and rights and interests. At about line 34 on that page he says:

The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes. For example, a member of the Miriuwung and Gajerrong community is entitled to forage over Miriuwung and Gajerrong territory, and is not confined to the "country" of a subgroup with which that person has connection. As a matter of courtesy or custom that person may be expected to inform the "dawawang" of a subgroup, as persons responsible for the "country", of the intended use of the land in the care and control of the subgroup -

and so on. At page 529, lines 1 to 20, there is further discussion which bears, in our submission, on the point your Honour raises. Starting at about line 6, his Honour says:

The rights distributed to such subgroups under traditional laws or customs included the right to use a particular area of land for benefit of the "estate group" and the right of some in that group, (the "dawawang") to "speak for" that land, in particular, as to the use thereof.

Attached to those rights were responsibilities which included a duty to "care for" the country, in particular, to care for and protect Dreaming sites, art sites and other places of significance in the "estate" area.

He then goes on to talk about the estate groups. So it is through those findings and the responsibilities to care for country, the rights that accord to particular people within a subgroup, the right to forage over the land and the like and ultimately the right to speak for the country and to control what happens on it that one sees, with respect, the justification for the particular finding that there is possession, occupation, use and enjoyment of the traditional homelands of the applicant group.

GLEESON CJ: Suppose one of the relevant rights is a right to forage over the land, and suppose that the Executive Government, acting pursuant to a power conferred by a statute, floods the land with a lake, which is intended to be there indefinitely. What has happened to the right to forage?

MR BARKER: The right to forage, your Honour, might still be consistent, if it includes the right to fish. That is the first point to make. The right to forage in terms of hunting, say, a goanna and chasing it to a hole, will be difficult, given the flooding - - -

GLEESON CJ: Suppose, pursuant to statute, the government not only floods the land with a lake but puts up a sign saying "everybody keep off the lake".

MR BARKER: If there is authority for the putting up of the sign in the first instance, your Honour - - -

GLEESON CJ: That is what I asked you to assume.

MR BARKER: - - - then that might regulate the enjoyment of native title. It would be, in our submission, no different from the circumstances in Yanner, where - - -

GLEESON CJ: So you could have a right to forage on land which is submerged beneath a lake and on which you are prohibited to enter. That constitutes a mere regulation of your right to forage, does it?

MR BARKER: Your Honour, I think I conceded that the use and enjoyment of that right to forage in respect of land-based fauna would be impossible. Fishing, if it is included, would not be. A regulation which actually prevented people from entering an area would plainly prevent the continued enjoyment of that native title activity.

GLEESON CJ: What has then happened to the right to forage, in the example I gave?

MR BARKER: Your Honour, if one is to assume other things, for example, that that is not the only activity or connection with the area which is being made the subject of flooding - for example, that there are spiritual sites of importance to the Aboriginal people in that flooded area and that they maintain a connection in relation to those as well - then we would submit that the whole of the native title has not been destroyed, and that - - -

GLEESON CJ: But my question to you is, what has happened to the right to forage?

MR BARKER: It is incapable of enjoyment.

GLEESON CJ: It still exists?

MR BARKER: Yes.

GLEESON CJ: Is it possible to extinguish a right to forage?

MR BARKER: We submit, it is not, if the right - - -

GLEESON CJ: It is not impossible.

MR BARKER: It is not, if - - -

GLEESON CJ: Suppose the government of Western Australia sought your advice on how to extinguish a right to forage in relation to a particular land. How would you tell them to do it?

MR BARKER: Your Honour, it depends what the government of Western Australia wanted to achieve. If it wanted to prevent the carrying out of foraging in that place, it could do so.

GLEESON CJ: Suppose it wanted to extinguish the right to forage. Could it do so? Is it possible to extinguish the right to forage?

MR BARKER: Your Honour, we say in respect of a native title that comprises a right to the land itself, that merely to prohibit the act of foraging in that place would not extinguish the underlying title. The title would remain, but the ability to enjoy that foraging right would be impossible.

GLEESON CJ: Is it possible for a grant of a lease, ever, to extinguish a right to forage?

MR BARKER: It would depend, your Honour, on the terms of the lease - whether or not there is an impossibility of coexistence. It would depend on the - - -

GLEESON CJ: Is it possible?

MR BARKER: It might be possible, yes.

GLEESON CJ: How would you do it, if you wanted to do it?

MR BARKER: You would seek to make it clear that the uses comprehended were as broad as the rights that are capable of being enjoyed under a fee simple, and that the term of the lease was of sufficient duration to make it clear that it was intended to be totally inconsistent with continued enjoyment of native title.

GLEESON CJ: Would it be possible for a lease to extinguish a right to forage?

MR BARKER: The answer would be similar to the one that I provided in relation to the other example, your Honour. It, if it is cast in certain terms, might certainly be inconsistent with the continued enjoyment of such a native title activity. But it would be possible, if it were cast in the manner I have put it, to extinguish the whole of the native title that underlies it.

GLEESON CJ: That is why I asked you the question that I did and I am afraid I am still not sure what your answer to it is. Is it possible to extinguish a right to forage?

MR BARKER: It is and I do not seek to be semantical, your Honour, but it is, so long as the act takes place in a certain way. We would say that a single act of the executive or the legislature aimed at removing the right to forage will not extinguish the native title because it - - -

KIRBY J: That is not very consistent with Fejo, is it, because one way of extinguishing the right to forage would be by a grant of fee simple.

MR BARKER: Well, I have conceded that, your Honour, and I suggested it - - -

KIRBY J: The question is, what is the logic of the steps down from fee simple to other property rights that expel the fragile native title?

MR BARKER: That is why I said, with respect, in answering his Honour the Chief Justice's question that a grant in fee simple will plainly on the authority of Fejo extinguish all native title rights and interests.

GLEESON CJ: If your argument is correct, native title is not fragile at all, is it? It is extremely resilient.

MR BARKER: It is indeed, your Honour, and the notion that fragility, in our submission, must be treated with care. The Commonwealth in their submissions and others, but particularly the Commonwealth, seek to make the point that your Honour has put to me, and that we do not shrink from that proposition. Native title is recognised by the common law in the sense that it may be enforced and protected and there is no reason, given the nature of that interest, that indigenous people in this country have, why it should not be treated with the same respect that other property interests are treated with.

GLEESON CJ: Now, my questions about the right to forage were really directed at the last sentence in the paragraph that you took us to as the key paragraph in Justice Lee's judgment on page 508 at line 10.

MR BARKER: Yes.

GLEESON CJ: You embrace that, as I understand it?

MR BARKER: Yes, we do.

GLEESON CJ: Is the corollary of that that it is all or nothing?

MR BARKER: Yes, it is.

GLEESON CJ: If one of the rights has gone, they have all gone?

MR BARKER: If all of the rights have gone - - -

GLEESON CJ: What about if one of them has gone?

MR BARKER: No, no, that is - - -

GLEESON CJ: You see, a possible point of view is that that sentence could cut rather harshly against you. The possible point of view is that if one right is gone, they have all gone, unless there is some possibility of partial extinguishment.

MR BARKER: Your Honour, that brings one to matters that we will come to later in our submissions concerning appropriate tests. One really has to say, what is the nature of the act of the legislative executive, that is said to extinguish?

GLEESON CJ: If you relate this question to what Justice Brennan said in the words in parentheses on page 57 of 175 CLR and if you put to one side for the moment the metaphor of "a bundle", all that is being put against you is, is it not, that some of those interests and rights can be extinguished at the same time as some of them are left standing?

MR BARKER: This is in relation to what is said at page 57?

GLEESON CJ: Page 57, the words in parentheses, as to what native title means.

MR BARKER: Yes, yes.

GLEESON CJ: Now, you, as I understand it, are intending to resist the notion that it is possible to extinguish some of those rights and interests there referred to, but leave others standing?

MR BARKER: Yes, that is right. Your Honour, can I take you to page 51 in Justice Brennan's judgment in Mabo [No 2]. There are a number of passages here which we say go to explicate his Honour's statements in the other areas, including the one that your Honour the Chief Justice has just identified. At the first full paragraph on the page, your Honour, his Honour notes:

If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.

The particular point that we seek to draw from that is that it is the community that holds the proprietary title and there is a distinction drawn between the rights and interests that some groups or individuals might have as members of that community, there is a community title. We seek to advance that community title concept, because we say it is found in Mabo, it may not be found in other cases, although we would say in much of the native title in Australia it will be, and it was certainly found in this case. It is an identifiable community of sovereignty; it is an identifiable community today; the community has the proprietary title. Can I take your Honours further down the page to about point 5 on the page, a little bit past where I read. His Honour goes on to say:

The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners.

Then if I can take you down to about point 7 on the page, towards the end of a line, his Honour says:

Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown's radical title -

And, your Honour, to take the point which is then incorrectly put in some of the submissions against us, including a footnote, I think, in the Commonwealth's submission, and not, it seems, fully appreciated by the court below either, with respect, the suggestion that usufructuary rights might have an independent existence, his Honour says here, following on:

The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title.

So it is by reason of his Honour's identification of those relationships between a usufructuary right and a proprietary community title that we say there is a proprietary community title.

GLEESON CJ: Is one way of expressing your argument to say that the rights and interests to which Justice Brennan was referring are inseverable?

MR BARKER: It is, because they, your Honour, are all derived from that one title and unless we say the law or the executive act in question strikes at that very title, and all that is derived from it, that title continues. If you go over the page, your Honour, if I may draw the Court's attention - at the top of page 52 his Honour goes on to say in the second line:

That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title.

GLEESON CJ: But to say they are inseverable might mean that if one goes they all go.

MR BARKER: Well, if one takes a very physical attitude, your Honour, and sees them as things attached to a long piece of rope and if you can get hold of one of them and pull it hard enough the whole piece of rope will go with it, but, with respect, that would not be right when one considers what we are talking about here. It would be no different, with respect, than the situation that the Court in Yanner, the majority findings, that to seek to prohibit the exercise of a right to hunt, to catch a crocodile or whatever, will prevent the enjoyment of that right. You might want to use the word like "extinction" or "confiscation" and the like in respect of the curtailed right of enjoyment, the activity that you cannot do, but it does not remove the community title that gives rise to that usufructuary interest.

McHUGH J: I agreed to that judgment but I have always felt that there was some tension between what is said at 51 and 52 in the judgment and the notion that you could nevertheless extinguish native title. The original problem was that the Crown could not recognise existing native title property rights and then claim to have a radical title to the land because the property rights, according to the theory of tenures, had to derive from the radical title, otherwise they would be inconsistent, indeed, contrary, to that title. Chief Justice Marshall had said as much in Johnson v McIntosh.

So, the path that was taken before Mabo was that it was recognised that the Crown needed to obtain full property rights to the land in order to grant estates which were subject to the Crown's radical title and the cases up to Mabo, the Privy Council cases, regarded the rights of the native inhabitants as possessory or usufructuary rights which were a burden on the title of the Crown in the same way as a lease or a life estate is a burden on a fee simple, an estate in fee simple. But Justice Brennan went further than saying that it was a possessory or a usufructuary right, he described it as a proprietary right and the rights of the individual members of the clan or group were the possessory or usufructuary rights.

If it is a property right, how can the Crown issue estates inconsistent with that? That is the problem that has often seemed to me to flow from those passages. I have always thought there was a bit of a tension between the two concepts, that the native title could be a proprietary interest and yet it could be extinguished by the Crown granting another proprietary estate.

MR BARKER: Your Honour, there are certain tensions and, to take the Chief Justice's point earlier in respect of whether this is good or bad in terms of an indigenous party's interest, the result, of course, of Justice Lee's determination is that there is no extinguishment through most of this claim area, regardless of the nature of the interest granted. It either does act as a mere regulation of native title or it operates to curtail its enjoyment or it suspends native title rights on an appropriate analysis. The result is there is no extinguishment and thus legislation, the grants of rights and interests, do not effect extinguishment unless, of course, one is to deal with grant of a fee simple or another type of property interest that satisfied the advice that I gave to the WA Government when I was then asked to give it. So, you do not get to extinguishment very easily on the primary judge's position.

What it does, of course, if you like, in practical outcomes, if not policy terms, is not achieve extinguishment. It means that so far as the Native Title Act is concerned there do not arise immediately claims for compensation by reason of extinguishment, but there remains also the possibility, because there is that underlying title which may be affected, rights of negotiation and, in the future, if those various forms of legislation or tenure or the prohibition of hunting in a particular place are taken down, the native title can be enjoyed.

CALLINAN J: Mr Barker, section 223 of the Act, though, defines both:

native title and native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples - - -

MR BARKER: It is disjunctive, your Honour.

CALLINAN J: Yes, but the definition is the same in either case.

MR BARKER: It is simply a provision in that respect - - -

CALLINAN J: I simply make the point, Mr Barker, that the reference is to "rights and interests". That appears, not only in the introductory part of subsection (1), but also in paragraphs (a) and (c).

MR BARKER: Your Honour, the question is in any - - -

CALLINAN J: It does not talk about a State.

MR BARKER: The question is, in any particular case, what the evidence shows the right is here and we say community title is shown here, been found here, in effect, as it was in Mabo.

McHUGH J: Correct me if I am wrong, but Justice Deane and Justice Gaudron did not accept the notion that there was a proprietary in this. Their view was it was a personal right and it is very easy to reconcile extinguishment once you adopt the view that Justice Deane and Justice Gaudron took. I am right in that, am I, my recollection that they thought it was a personal right, not a proprietary right?

MR BARKER: Justice Gaudron will no doubt right it for herself, but, your Honour, it has to be recalled, as we read their Honours' judgment in Mabo, that whilst they took that view about it, it was because they also took the view that appears at the top of page 100 of Mabo, starting at the bottom of page 99:

In different ways and to varying degrees of intensity, they used their homelands for all the purposes of their lives: social, ritual, economic. They identified with them in a way which transcended common law notions or property or possession.

Redolent of the joint judgment in Yanner that I referred to earlier, and whilst it - - -

McHUGH J: But what about at 112 about point 6 on the page, where their Honours say:

the vulnerability of the rights under native title resulted in part from the fact that they were personal rights - - -

MR BARKER: Yes, and then, your Honour, to trade the passages, at page 113 at about point 3, after the reference to footnote 25:

Notwithstanding their personal nature and their special vulnerability -

et cetera -

under common law native title can themselves constitute valuable property.

The analysis, with respect, is tied up with the observation at the top of page 100 that, indeed, Justice Gaudron formulated as a propositional question to me earlier, that "bundle of rights" analysis is not terribly apposite in these types of cases. So, perhaps if your Honour uses "property" in a particular way, one might say, "Well, it is not that sort of property, it is a different property". But we say it is property nonetheless and it would be protected under the Commonwealth Constitution from a taking. Just terms would have to be provided. That all clearly follows, in our respectful submission, from what is said in Mabo [No 2].

GUMMOW J: What about Justice Toohey in Mabo [No 2]?

MR BARKER: As to his - - -

GUMMOW J: There are three judgments in Mabo [No 2]. We keep hearing about one. There are two others.

MR BARKER: We accept all of them, your Honour. We do not see anything in Justice Toohey's judgment that essentially runs counter to that proposition.

GUMMOW J: Where do you say he embraces the analysis of Justice Brennan?

MR BARKER: Well, ultimately, your Honour, in what he says about the nature of the title. For example, if you come to page 191, the first full paragraph on that page at about point 3:

All the factors discussed above in support of traditional title are clearly satisfied in the present case. Indeed, the defendant agreed that the Meriam people were present on the Islands before and at the time of annexation and that the Crown in right of Queensland has not attempted since then to dispossess them.

Then there is an argument about "there was no ordered system of land tenure" and his Honour responds to that at the bottom of the page, at about point 8, says:

It is true that the findings of Moynihan J do not allow the articulation of a precise set of rules and that they are inconclusive as to how consistently a principle was applied in local law, for example, with respect to inheritance of land.

But then over the page at 192, his Honour in the first full paragraph at line 4 says:

An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise "traditional" rights and duties and have adopted European ways also fails.

He goes on to point out at the bottom of that passage that:

The economy of the Islands is now based on cash from employment rather than on gardening and fishing.

But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life.

We say it can in that sense modify its title but we say that it is an analysis on all fours with the judgment of Justice Brennan.

GUMMOW J: He deals with extinguishment too, does he not?

MR BARKER: Yes, his Honour does.

GUMMOW J: Does he deal with it in the same way as Justice Lee?

MR BARKER: Your Honour, at page 195 the question of clear and plain intention is - - -

CALLINAN J: What about page 207, the last paragraph:

"Title" is, in the present case, the abstract bundle of rights associated with that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss - - -

MR BARKER: His Honour is dealing, I think, with the common law concept of possessory title.

CALLINAN J: That contemplates partial extinguishment, does it not, plainly?

GUMMOW J: It is certainly consistent with what his Honour was saying in Wik, I think.

McHUGH J: At 194 his Honour says five lines from the bottom:

This follows from characterization of the title as "a personal and usufructuary right" as opposed to a propriety right, the former being inherently weaker and more susceptible to extinguishment.

Earlier at 178 and 179 his Honour had said:

The rights claimed by the plaintiffs on behalf of the Meriam people do not correspond to the concept of ownership as understood by the land law of England . . . "Title" is no doubt a convenient expression . . . is "a special collective right . . . by virtue of its long residence and communal use of land or its resources".

MR BARKER: Yes, and we draw comfort from that, your Honours.

GUMMOW J: It was his Honour's view, I think, that he thought this word "title" caused mischief and had been fixed upon and there it was; one had to live with it.

MR BARKER: That is so, and he says that at page 178, but that reflects the view which we put to the Court that it is not easy to categorise - - -

GUMMOW J: It seems to me you are left with Justice Brennan, and you have to remember Justice Brennan dissented in Wik, so you have to read what he said in Mabo [No 2] with what he said in Wik and make it all match up. You just cannot read what he said in Mabo [No 2]. It was not his last word on the subject; it was his first word.

MR BARKER: The basis upon which the Meriam people were awarded their native title in Mabo [No 2] though, your Honour, has not been altered, we submit. And so one does have to ascertain the basis upon which it was awarded. Can I move to that, by taking your Honours - - -

KIRBY J: Just before you do that - you have obviously gone through all this and you have had more time to do so than I have, but I come back to the question I asked at the beginning. At least on one view, the passage of the Native Title Act transmogrified the common law entitlements. It is an Act valid on the face of it, it has been enacted under the powers that are given by the Constitution to the Federal Parliament. It talks of "title", and it provides for the recognition of native title as defined - that is in section 10 -it provides for limits on extinguishment in section 11, and, at least in my view at the moment, foraging around amongst what members of this Court said before the Federal Parliament within its constitutional power provided for native title, its recognition and limits on its extinguishment, is just misconceived. It is starting at the wrong place.

We have title, we have native title, but we have it under an Act of the Federal Parliament, the validity of which is not challenged, and at least orthodox approaches would suggest that you then look into the Act with the benefit of the past, but not controlled by the past. You are giving meaning to what the Federal Parliament, within its constitutional power, has provided. It has talked of "title" and therefore you have to give content to an Act, not forage around amongst the predecessor provisions of the common law. Anyway, I have said that to you twice now, I will not say it again.

MR BARKER: Your Honour, section 223(1) of the Native Title Act simply defines the expression "native title" or the alternative expression "native title rights and interests".

HAYNE J: But it is that which you sought to have determined. What you sought - - -

MR BARKER: Yes.

HAYNE J: - - - to have determined was the statutory concept thus defined.

MR BARKER: Yes. And the question is, what is the statutory concept?

HAYNE J: And we might begin with the words of the statute.

MR BARKER: Yes, and they can mean different things. They can mean "the communal, group or individual rights and interests of Aboriginal peoples". In this case - - -

KIRBY J: I do not think this is necessarily against you. The very - - -

MR BARKER: No.

KIRBY J: - - - definition, the concept of "communal" recognising - that is just something different and novel. The reference in the statute to spiritual values - - -

MR BARKER: Yes. I appreciate that your Honour - - -

KIRBY J: - - - "over water" - I mean, all of these are novel ideas, but they are novel not by the common law; they are novel now by the statute.

MR BARKER: They are solidified, if we can put it that way, by the statute - - -

KIRBY J: No, not just solidified. That has a notion that you have a common law right you put in a refrigerator. You have something that has authority from the people of Australia in Parliament. It has a new legal character, nature. I mean, normally when you have a statute, you start with the statute. I mean, in this Court, in any court in the land, you start with a statute; the common law is overtaken. Anyway, you take your own course, but I think there are real dangers in the Court - if we look at it historically, there was no native title, then Mabo came, Wik came along, the statute intervened, and the statute becomes our anchor, not what the Court said. It, in a sense, triggered the statute, but the statute is the law, the law of Australia.

MR BARKER: The question then becomes though, your Honour, what is the native title that exists in this case? Our submission is that the court below and the primary judge were right in saying that it was a right to possession, occupation, use and enjoyment, whether you call it exclusive or not. We contend that that determination conveys a right to the land itself, and it is appropriate and necessary to look at what was decided in Mabo [No 2].

To come back to Justice Toohey's position, to which Justice Gummow, for example, referred; whilst his Honour was plainly uncomfortable with the use of those expressions because we were dealing with an indigenous system of law, he nonetheless was finding that there was, and found that there was, a right to possession, occupation, and use and enjoyment, in the Meriam people. That finding, in our submission, does not depend on the content of particular laws and customs. It is quite separate from it. By reason of the time, and the fairly tight timetable we are on, your Honour, I need to move fairly quickly - - -

CALLINAN J: But before you do that, can I just ask you one question to help me try to understand some aspect of the case? Mr Barker, are there areas in this case in respect of which the connection is claimed to be spiritual but on which no ritual is carried out and which do not even need to be occupied or visited for the spiritual significance and, therefore, a form of native title to exist?

MR BARKER: Your Honour, that is an issue that is raised by the State in their appeal and cross-appeal.

CALLINAN J: Yes, but I am asking you whether there are areas of that kind in this case in respect of which a claim is made?

MR BARKER: It requires a longer answer than I can perhaps give at the moment and had intended to deal with in reply, if I needed to.

CALLINAN J: All right.. Well, would you at some stage address that for me please, when it is convenient.

MR BARKER: Yes. In short, your Honour, we say that the evidence does not break down in that way. The spiritual connections combine with physical connections, use and enjoyment together provide the connection in respect of the claim area.

CALLINAN J: So you say there are no areas of the kind which I have identified or which answer that description?

MR BARKER: Yes. We say this is not a case where the finding of native title simply depends on there being a spiritual connection and nothing else.

CALLINAN J: Thank you.

MR BARKER: I can take your Honours to page 62 of his Honour Justice Brennan in Mabo [No 2] dealing with this question of the relationship of the entitlement to the rights and interests or the laws and customs. We point to about page 62, point 9, the ultimate finding of his Honour that:

Whatever be the precision of Meriam laws and customs with respect to land, there is abundant evidence that land was traditionally occupied by individuals or family groups and that contemporary rights and interests are capable of being established with sufficient precision to -

allow the relief that was granted. If one goes back to the top of page 61 of the report, the essential findings appear there in those first half dozen lines and ultimately reflect the test for native title that his Honour Justice Brennan set out and which appears in section 223 of the Native Title Act, namely, there needs to be connection by laws and customs and the common law must apply. But going to the second line at the top of page 61, his Honour says:

The Meriam people asserted an exclusive right to occupy the Murray Islands -

That is the first characteristic. Secondly:

as a community, held a proprietary interest in the Islands.

That is the second, "as a community", and, thirdly:

have maintained their identity as a people -

That is the next criterion, and the fourth:

they observe customs which are traditionally based.

There is no attempt made, in our submission, by the court here to identify rights and interests in terms of, for example, a right to grow vegetables or to fish or the like. Indeed, as pointed out from what Justice Toohey said earlier, there had been a change, on the evidence, to a cash-based economy rather than gardening and fishing.

McHUGH J: But that is what I said to you earlier, that it seemed to me that Wik was inconsistent, indeed, utterly inconsistent with the notions or concepts that appear at page 61 of the book. I do not think there is much force in your argument in so far as you anchor yourself on Justice Brennan, but it is Wik and what was said by members of the Court in Yanner that seem to me to present great difficulties from your point of view, not to mention what Justices Deane and Gaudron and Justice Toohey seemed to say in Mabo, because they did not, as it appears to me, go along with Justice Brennan's analysis.

MR BARKER: We appreciate, your Honour, that there are propositions against us and there might be said to be, on one reading of some of the statements in the authorities, a degree of momentum about that, but we seek to come back nonetheless to what the recognition of native title actually involved in Mabo [No 2].

We say, in short, that Mabo [No 2] is about enabling an identifiable indigenous community to evolve and adapt to changing circumstances in a post-sovereignty world. They can continue to own the land they owned at sovereignty and are entitled to use it, so long as they do so consistently with or in accordance with their traditionally-based laws and customs as currently acknowledged and observed.

HAYNE J: Mr Barker, again you inject this notion of ownership pre-sovereignty and that, it seems to me, flips the relationship that, at least on what I have read so far, is asserted to exist. It is not that the people owned the land. On the contrary, the land was the people; the land owns the people.

MR BARKER: Your Honour, the people occupied the land.

HAYNE J: Different.

MR BARKER: Yes, and I used the expression "owned" then in a colloquial sense, but it is the occupation, the exclusive occupation, of a people at sovereignty which gives rise and is at the source of native title. If there is an identifiable community then and now, if that community had laws and customs then and now and they continued to observe them now and they are traditionally based, that native title will survive. The point is that his Honour Justice Brennan, and it is accepted generally by the Court - I focus on his judgment at page 61 for the purpose, at about point 6. He said:

Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too.

His Honour explicitly recognised that the laws and customs of the people will change, and that the rights and interest of the members of the people among themselves will change too. Neither is fixed immutably and the submission that we are ultimately making the Court is this, that the right of native title that is recognised by the common law, because it is not a creature of the common law, is that right of occupation arising in those circumstances. There is an internal indigenous system, which I think his Honour Justice Gummow called an idiosyncratic system in the Yanner judgment, that operates quite separately. It is clear from Mabo [No 2] that the common law is not concerned with the administration of the local indigenous law. It is left for those people to work out. As pointed out in Mabo [No 2], there was not an easy rule to settle a dispute amongst the people as to who owned particular tracts of land.

CALLINAN J: Mr Barker, just coming back if I may, and I am sorry to return to it, to the matter that the Chief Justice asked you about, is not your response quite inconsistent with subsection 4(6) of the Act which refers both to complete extinguishment - - -

MR BARKER: Sorry, your Honour, which subsection?

CALLINAN J: Section 4(6) which refers both to complete extinguishment and extinguishment to the extent of any inconsistency. Now, is that not totally against your proposition that it is either all or nothing?

MR BARKER: We are dealing here, your Honour, with the situation at the common law, the Act - - -

CALLINAN J: We are dealing with the Act under which you made your claim.

MR BARKER: Yes, but - - -

CALLINAN J: You submit that you cannot have partial extinguishment.

McHUGH J: I think you argue that refers to geographical extinguishment, do you not? Is that not your argument?

MR BARKER: That is the question of partial extinguishment that his Honour Justice Brennan dealt with.

McHUGH J: Yes.

MR BARKER: We certainly make that argument and Justice North developed that below.

GLEESON CJ: What exactly is that argument? Do you read that provision as meaning the extinguishment is to the geographical extent of any inconsistency?

MR BARKER: For a start, it is confirming acts done beforehand - - -

GLEESON CJ: But that expression, "extinguishment is to the extent of any inconsistency" is one that is repeated over and over again in judgments of this Court.

MR BARKER: Yes.

GLEESON CJ: Now, what do you say it means?

MR BARKER: Your Honour, it can have statutory force under the Native Title Act. We are in this case dealing with grants made prior to the enactment of the - - -

GLEESON CJ: But when Justices of this Court have talked about extinguishment to the extent of any inconsistency, and when the Act talks about extinguishment to the extent of any inconsistency, what is meant, if not partial extinguishment?

MR BARKER: Your Honour, one example is this - and I think it comes out of Justice Brennan's judgment again at about page 69 - it is the summary point 5 starting at the bottom of page 69, going over to page 70:

Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.

Then his Honour gives an example:

Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use . . . and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used -

et cetera.

GLEESON CJ: But the example that he gives at the bottom of page 69 is native title being extinguished by the grant of leases.

MR BARKER: Yes, that is correct. That is in relation to summary point 4.

GLEESON CJ: All right. Now, could you give an example of what you say is a grant of a lease that would extinguish native title?

MR BARKER: Only the one that I gave earlier, your Honour. The performance criteria that I would offer are that it has to exhibit that degree of permanence and that degree of impossibility of coexistence with native titles continued enjoyment to satisfy the clear and plain intention test that native title has been extinguished.

GLEESON CJ: Would it have to be a lease in perpetuity?

MR BARKER: That may achieve extinguishment, absent other features under the legislation, for example, pursuant to which it was granted.

GAUDRON J: You might give the example of the leaseholds in the Australian Capital Territory, leaseholds for residential dwelling. Presumably you would - - -

MR BARKER: I think they are still granted for 99 years.

GAUDRON J: Yes.

MR BARKER: That might be an appropriate one. Of course, Justice North, at the other end of that equation proffered a hypothetical example of a race meeting where a lease is granted for a day for that purpose.

McHUGH J: But there were two leases in Mabo, were there not? One of them was a lease for 20 years and one was a special lease. Did not Justice Brennan, with the agreement of Chief Justice Mason and myself, say that that had extinguished native title?

MR BARKER: Your Honours did.

McHUGH J: Yes, and, I think Justice Deane and Gaudron also - - -

MR BARKER: There was observations made, of course, concerning any reservations that might be relevant to the indication of that clear and plain intention.

McHUGH J: But whatever you might get out of Justice Brennan's judgment in Mabo on this notion of geographical extinguishment, is it possible to argue that Wik was confining itself to geographical or physical extinguishment? It seems to me that the very essence of that judgment is that you could have this partial extinguishment, that there could be rights that would be extinguished and yet other rights flowing from the native title could coexist with the rights of the graziers or the pastoralists. It seems to me very difficult, in the face of Wik, to maintain this argument of yours. I hardly suppose that you would want to be arguing that Wik was wrongly decided.

MR BARKER: The last I take is a rhetorical question, your Honour?

McHUGH J: Yes.

MR BARKER: The first matters - I accept that one can construe what is being said by some of their Honours there in the way your Honour does. We say that this is the occasion for the Court to confront squarely the question of the nature and content of native title, what it is and how it in fact arises; to recognise that because laws and customs may change and rights and interests may change under the indigenous system it is an unsafe process to identify rights and interests by reference to whatever they are for the time being because you simply finish up identifying activities that may be carried out on land rather than the right or interest.

If one accepts that the nature of native title when it is a community title of the type in Mabo and here, is a right to the land itself, it is an underlying title from which all the other rights and interests are derived, then the Court ought to accord that interest, that indigenous interest, the common law should recognise that that interest, that indigenous interest, is not susceptible to dismantling partially activity by activity no more than if the simple is under our general law. It would treat it, therefore, in the same way. Under the general law activities on any of the simple owned land - - -

McHUGH J: Yes, but that is what seems to be, contrary to what you arguing for seems to me, what saved the day for the native title holders in Wik; otherwise, they would have been sent packing, so to speak.

MR BARKER: But there is not necessary inconsistency in Wik. One of the difficulties with Wik is, and this, perhaps, comes out of his Honour Justice Gummow's judgment in Yanner by reference to the recent decision or relatively recent decision of the Court in Western Australian v Commonwealth, the Mining Act Case that your Honours will recall. When you start analysing the nature of rights that have been given to a pastoralist and the nature of particular activities that may be carried out on or pursuant to a native title, there is no necessary inconsistency. For example, if a mining lease can be subject to conditions that will not impede the Commonwealth's use of its land as a rifle range, so you do not have a section 109 inconsistency, or, similarly, the same analysis can be made in respect of the - - -

GUMMOW J: Well, Justice Beaumont picked up that idea and Justice von Doussa picked up that idea in this case, including that operational inconsistency.

MR BARKER: Like they talk about reasonable user, those propositions can apply.

GUMMOW J: You quarrel with that, I think.

MR BARKER: Beg your pardon?

GUMMOW J: You quarrel with what they said about operational inconsistency, do you not?

MR BARKER: Well, we do in particular respects.

GAUDRON J: You quarrel, do you not, that it brings about extinguishment as distinct from suspension or impairment so that the title or the rights can be enjoyed when the operational inconsistency ceases. I mean if you go to your 109 inconsistency notions, you do not have any problem, do you? It is only if you go - - -

MR BARKER: That is right.

GAUDRON J: - - - to some notion of finality that you are in difficulty.

MR BARKER: Yes. With respect, that is our position, your Honour.

GUMMOW J: What is put against you, I think, as to the finality is the fragility of native title, and I know you dispute the word "fragility," but I think that is where the battleground is.

MR BARKER: Well, it undoubtedly is, with respect, so.

HAYNE J: And the answer you make on this question of fragility seems to me at the moment, at least, to be tied up with this: apart from factual inquiries about who holds the title, apart from factual inquiries that may be raised by question of extinguishment, I would understand your submission to be that native title relevantly is a legal concept devoid - divorced from any factual inquiry about what was done in the past. You say that it is a title to the land, a right to the land. You speak in legal terms rather than factual terms, but is that right?

MR BARKER: It is not right that that the way we put it our submission, with respect. We do not wish to be understood that way, your Honour. We say that you must, of course, look at the evidence that is adduced on any application for native title to ascertain whether it has survived, and, if so, what has survived.

HAYNE J: I am not asking about extinguishment or holding. Your core concept seems to be a legal concept rather than a factual inquiry about what were the rights, et cetera, held under traditional law and custom.

MR BARKER: But, your Honour, once it is on the evidence shown that there is an identifiable community today which is governed by laws and customs that are traditionally based and that identifiable community at sovereignty had the exclusive possession of the territory claimed - that requires evidence to be led, of course; it is not a legal concept - the legal consequence is that there is a right of occupation, and I use that expression to encapsulate possession, occupation, use and enjoyment. Once you prove that the predecessor community was in occupation at sovereignty and the requirements of the common law are met today to see whether it survived, then it is that right of occupation, that right to the land itself, that exists.

That is governed, of course, in its enjoyment by the rights and interests and the laws and customs. Absent the laws and customs today, there will not be any survival of native title. That is the relevance of the laws and customs. The other relevance of the laws and customs would be in relation to the idiosyncratic system, and if an Aboriginal person is charged with offending some provision of the State laws and the like, they may, as has been suggested, I think again by Justice Gummow in Yanner, they would need to demonstrate that under the idiosyncratic or internal system of indigenous law they indeed have the personal right to hunt or whatever. They cannot just stand up and say, "I'm an Aboriginal person, therefore I have the right".

GLEESON CJ: Mr Barker, you can have partial extinguishment of native title under the Native Title Act, can you not?

MR BARKER: It proposes a system of partial extinguishment, yes.

GUMMOW J: I mean, section 51 has always been in the Act, has it not, from the beginning? Section 4(6), I think, went in in 1998.

MR BARKER: Yes, it did.

GUMMOW J: But section 51 has always been there. That is the "Criteria for determining compensation".

MR BARKER: It simply begs the question as a matter of general law whether you can partially extinguish. I do not think, with respect, it advances you any further and I think Justice Lee made a similar point.

GLEESON CJ: Section 238(2) refers to partial extinguishment.

MR BARKER: Yes, it provides for the eventuality that there is partial extinguishment, your Honour.

GUMMOW J: That has always been in the Act, that section.

MR BARKER: Yes, I think non-extinguishment principle has.

GUMMOW J: Yes, it has.

MR BARKER: Your Honour, to the extent that the common law can be guided by an Act of the Commonwealth Parliament if enacted after the event - - -

HAYNE J: That is the point, Mr Barker. We are not dealing with the common law. You made a statutory claim under a statute. We are not dealing with a common law claim.

KIRBY J: You seem to dislike this statute. Barristers by and large hate statutes; they love the common law. We see it over and over again in this Court. But the statute is the word of the Parliament.

MR BARKER: It undoubtedly is, your Honour, and we do not seek to avoid the statute.

McHUGH J: Is it section 223(1)(c) which is what keeps bringing you back to the common law, namely that they must be rights and interests that are recognised by the common law of Australia?

MR BARKER: Yes, we certainly recognise that that provision governs the determination whether native title exists.

KIRBY J: Yes, but after the statute the character of the right, which is called "native title" by the Parliament of Australia, is a statutory right.

MR BARKER: Yes, but, your Honours, there is a certain assumption in the Act that there may be partial extinguishment.

GLEESON CJ: And you say that is wrong? Is that what you say?

MR BARKER: We say that in circumstances such as the case before the Court, it is wrong.

GLEESON CJ: Well, can you give us an example of a case where it is right?

MR BARKER: Your Honour, the Court has accepted in principle, and again stated recently in Yanner, that native title is not a unitary concept, therefore you may have something like the community title that Justice Brennan has referred to at the one end, and at the other you may have some quite limited interest or interests which cannot be characterised in the same way. Now, in relation to some particular rights of that nature at the low end of the spectrum, if I can put it like that, you might be able to deal with them directly because they do not depend on that type of analysis on the right of occupation.

We say where you identify the native title right as the right to possess, occupy, use and enjoy this land, it is not a bundle of severable rights; it is a right that arises by reason of the prior occupation of the Aboriginal people which has been maintained and which is premised on the spiritual, cultural, social connections. They are difficult to break down. They explain the concept that I was presented with earlier by Justice McHugh from Milirrpum: people belonging to the land. It is a relationship that cannot be unravelled easily. It does not lend itself to partial extinguishment. So where we have, as we do in the evidence of this case, a particular type of native title, then we say it cannot be partially extinguished. There may be those other cases where you can, but this is not it.

HAYNE J: Is it any part of your argument to begin from a premise that there was a traditionally-based right of occupation in this case?

MR BARKER: I am sorry, your Honour, could you put that again?

HAYNE J: Is it a premise of your argument that there was a traditionally-based right of occupation, as opposed to occupation in fact?

MR BARKER: The findings of Justice Lee that I took the Court to concerning the operation of the system, the use and occupation of discrete areas of land, the right to others to forage throughout the land, the responsibility to speak for country and care for country, with respect, we say comprise that.

Your Honours, I am extremely mindful of the time that I have taken and the time we have allocated to us following our directions hearing yesterday to not go beyond next Thursday and we need to finish by one hour into tomorrow morning, so I need to draw the submissions on the nature and content of native title to an end so that we can try and proceed with a degree of haste, given the extinguishment issues we need to address.

Can I, perhaps, in closing on this, there are other matters - just make these points concerning matters I said I would address and have not. First of all in relation to the Supreme Court of Canada's decision in Delgamuukw, we say that the manner of proof of native title under the recognition of Aboriginal title, the common law in Canada is, if not the same, extremely similar to the proof required here. If I may simply, without taking your Honour to these particular passages, point them out for the record. There is an occupancy requirement that at sovereignty the group claiming native title occupied the land. That is found at paragraph [144] of Chief Justice Lamer's judgment; that the occupancy requirement requires "physical presence on the land", although one looks at that from an Aboriginal perspective, paragraph [147]. That there must be connection with the piece of land such as to show it to be of "central and significant part of the society's culture", paragraphs [150] to [151], but that, in dealing with that, it is said at [151] that a group of plaintiffs who "have maintained a substantial connection with" the land, will satisfy that requirement.

The requirement of "substantial maintenance of the connection" and citation of Mabo [No 2] was required by the court, paragraph [153]. The nature of the occupation that would normally satisfy "substantial connection" were discussed at [154] including the Supreme Court's analysis that there are "internal limits on uses which land . . . may be put" even though they considered it to be a right to the land itself. Those internal limits being those uses which would be inconsistent with the continued use by future generations of Aboriginal people. There was requirement that at sovereignty the occupation must have been "exclusive", paragraph [155], although it was acknowledged that other groups might be present and it was also acknowledged there could be shared exclusivity, paragraph [156] and [158].

The result we say, on proper analysis, is that the Canadian position at common law in requirement to the proof of native title of the community title nature we have in Mabo is the same and the Supreme Court of Canada concluded at paragraphs [111] and [124] in the Chief Justice's judgment, that native, in their terms "Aboriginal title", is not restricted to those uses which are elements of "practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies". At [111] it said:

Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title.

And then there is reference to a limitation that that ought to be applied.

Justice La Forest wrote a separate judgment taking a similar approach and rejecting at paragraph [193] that native or Aboriginal title "should not be defined as merely a compendium of aboriginal rights"; he rejected that concept.

To put it very shortly, your Honours, the position that we then say flows from acceptance of our proposition in relation to the nature of the right here, is that in relation to resources one does not look to see whether there is enjoyment of resources of a customary or traditional kind only. You do not look to the past, you are entitled to look to the present requirements and demands of that society. Once you recognise that community title is a right to the land itself, and that is the external recognition given by the common law, then it is a question of whether the internal system of the indigenous people prevent the use in contemporary ways. To give an example: if there were phosphate resources - I do not know if there are on the Meriam Islands - which had never been used at all in past times, certainly annexation, what would there be to prevent the Meriam people, under the order they now have, to exploit those resources? We say, none, unless they had an idiosyncratic law of their own which said those resources were not to be used. Now that would be a matter that might be litigated between them; it is a matter that might never come to a court.

Similarly we say, in respect of the native title right in respect of cultural knowledge where their Honours did make in the court below an order that there was a native title right to protect sites but not a native title right to protect cultural knowledge, but that is a finding that fails to recognise the nature of connection that Aboriginal people have, but itself goes to the basis of native title.

We put an example, your Honour, that if a person not a member of the indigenous people who held the native title somehow were to acquire secret knowledge and attempt to impart it to others not members of that people, it is submitted that the native title that inheres in the people would permit the people or representatives of them, perhaps custodians, to take appropriate action in the country's courts to prevent its dissemination. We say that that right would go well beyond a personal right residing in the custodians of the cultural knowledge which is the way the court below characterised the right we contend for.

GLEESON CJ: What, in your submission, would be the consequence of valid legislation in relation to an area of land in respect of which the community owners were a certain identifiable group which vested title in that land pursuant to a long-term lease in an Aboriginal land trust which existed for the benefit of other Aboriginal people in addition to the ones who had native title in respect of that area, but preserved to the traditional owners the exclusive continued exercise of one particular right, such as a right to engage in a spiritual activity? What would be the effect of that on the title of the original native title owners?

MR BARKER: I am sure your Honour would be surprised if I answer that by saying anything other than that it will not extinguish the native title. There would be a number of reasons why but, taking that proposition about other Aboriginal people being given entitlements, I think it is fair to say that his Honour Justice Brennan at the bottom of page 66 and top of page 67 of Mabo dealt with the situation, although it is not exactly the one your Honour puts, of course, which dealt with the declaration of the land for use by indigenous inhabitants of the State generally and found that that would not extinguish native title. In fact, he said at the last sentence commencing on 66:

Nor is native title impaired by a declaration that land is reserved not merely for use by the indigenous inhabitants of the land but "for use of Aboriginal Inhabitants of the State" generally.

GLEESON CJ: But it would be extinguished, would it, by a grant of an estate in fee simple to an Aboriginal land trust which operated for the benefit of people in addition to the people who were the original owners of native title?

MR BARKER: We submit not. We say one applying a clear and plain intention test has to ask whether that statutory Act, be it through the medium of a fee simple or not, cannot, just because it involves a fee simple, bring about a termination of native title.

GLEESON CJ: Well, it would involve what in other terms would be called a fairly substantial redistribution of property, if you are right in your original argument that this is a property right.

MR BARKER: But it, with respect, requires that type of deep analysis, and the difficulty with the example your Honour puts is that, of course, it is hypothetical. It has certain matters built into it.

GLEESON CJ: But does a redistribution of property amongst Aboriginal people interfere with native title?

MR BARKER: It may do, it may impair it, but it may not be possible to draw clear and plain intention that it extinguishes and is intended to extinguish that native title. That is what, again, we would draw from the passage of Justice Brennan that I took you to.

GLEESON CJ: That seems to treat native title as an abstract concept rather than as somebody's title or a communal group's title.

MR BARKER: With respect, not. One is simply focusing on the effect and the clear and plain intent of the executive act to which your Honour posited. It is not an abstract matter. One is seeking to determine whether as a matter of law a grant in those terms extinguishes native title. That is why we say, and Dr Bartlett will address in a moment, that unless one can see in the Act that there is no continued enjoyment of native title possible or that an Act does not have sufficient duration to exhibit an intent to extinguish native title, for example, that native title should not be considered as having been extinguished.

GLEESON CJ: I think my question really was a question for Mr Bartlett.

MR BARKER: Then I had better let him come forward, your Honour. May it please the Court.

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

MR BARTLETT: May it please the Court. If your Honours could turn to the index of our revised submission, I might give your Honours some indication of the structure of our submissions in relation to the grounds. I am hoping to address by the end of today items marked H, I, J, K, L, M and N, your Honours. If I may address them in terms of the grounds, item H, headed "GENERAL PRINCIPLES OF EXTINGUISHMENT", is essentially directed to the significance of the requirement of clear and plain intention which is the essence of ground 1.

Part I, headed "IMPOSSIBILITY OF CO-EXISTENCE", is the essence of ground 2 and under that head we turn immediately to circumstances of great importance in this appeal. The areas I will particularly focus on will, of course, be the Ord Project Area and probably the mining leases, given the time that is available, and the permit to occupy. Part J, "SUSPENSION AND PERMANENCE", is the essence of ground 3, that suggestion that in order to have a clear and plain intention to extinguish it must be an intention that the native title right not be capable of enjoyment permanently. Under that head again we will address mining leases but also a variety of dispositions which would seem to be intended to be temporary in nature.

Part K, "REGULATION AND CONTROL", is the essence of ground 4 and we would suggest that if there is an intention only to regulate or control native title it cannot extinguish native title and under that head we will refer to various legislative environmental controls, the existence of certain public rights and also the existence of certain private rights. Part L deals with grounds 6, 7, 8 and 9, in essence are the working out of the previous grounds in connection with pastoral leases. Ground M, dealing with "NATURE RESERVES", also arises under ground 6 and is particularly focused upon the "RESERVATIONS FOR ABORIGINAL ACCESS" and the particular effect the majority gave that provision. Ground N, ground 15, deals with the conclusion of the majority of the Full Court that the Mining Act, section 117, expropriated any native title right to minerals.

If I may go to part H of the submissions, headed "GENERAL PRINCIPLES OF EXTINGUISHMENT", and paragraph 59 which is dealing with the submission that we make that the requirement of a clear and plain intention is derived from universal principles for the protection of property. We would make that submission on the basis of the authority of both Mabo [No 2] and of Wik, in particular. In Mabo [No 2] his Honour Justice Brennan emphasised the need for the recognition of native title to reflect:

the equality of all Australian citizens before the law -

In the High Court's decision in Wik several of the majority referred to the requirement not being "a special rule" but rather, as his Honour Justice Kirby described it, arising from:

ordinary common law principles for the protection of a proprietary right -

We also cite on that page excessive, it might be said, reference to Privy Council decisions and decisions of the New Zealand court and the United States Supreme Court, all of which also adopt that requirement of a clear and plain intention, which also emphasised the need to give full respect to the concept known and the interests known as native title. The Privy Council decisions contain a variety of Lord Chancellors, including Viscount Haldane, in Amodu Tijani, emphasising the rights of property of the inhabitants are to be fully respected. Adeyinka Oyekan, the succeeding decision, recites that same authority, a decision of and a judgment written by Lord Denning, and, of course, the Canadian Supreme Court, in Hall's decision in Calder.

KIRBY J: Is it inherent in the very word or notion "extinguishment" that it is extinguishment forever?

MR BARTLETT: We would submit that is the case. Extinguishment we would regard as a concept - - -

KIRBY J: The extinguishment is final.

MR BARTLETT: - - - it is terminated. It cannot revive. We are not suggesting that once extinguished, native title can be revived.

GLEESON CJ: If there was any doubt about that, section 237A of the statute puts an end to the doubt.

MR BARTLETT: It certainly would. I also would take that understanding from this Court's decision in Fejo, your Honour. The rationale of that requirement, which, we would submit, is critical to understanding why we emphasise it, is made evident in the decision of the High Court in Wade v New South Wales Rutile, which we find a reference to in paragraph 63 of our submissions, where Chief Justice Barwick stressed that:

The courts are not entitled, and ought not, to eke out a derogation of such private rights -

That particular case might be said to have some significance, both in this context and in others, because it involved an attempt to grant a mining lease over private land, and the refusal of the High Court to interpret the Mining Act 1904 of New South Wales to allow that mining lease to be granted, because it would be a derogation of that private right.

There is also, of course, countless authority, some of which is cited here, to that same effect and emphasising that same significance. We are talking about the protection of property rights, and native title is entitled to a similar form of protection, subject, I should stress, of course, to that vulnerability which the Commonwealth in its submissions referred to, and has been referred to here already. We are not suggesting that native title cannot be extinguished by an appropriate inconsistent grant, not something that other interests are subject to.

KIRBY J: Is it central to your clients' argument that you cannot have partial extinguishment?

MR BARTLETT: No, it is not, in the sense that these arguments are all made in the alternative. If partial extinguishment can occur, these submissions are entirely independent and in the alternative of those submissions, though there would be some consequences depending upon this Court's conclusion on that issue.

KIRBY J: I take Justice Gaudron's point about the danger of metaphors, but if one thinks of the so-called "bundle of rights" as being quivers or sticks, then you can take out a lot of sticks and there can still be sticks left which, when you remove the inconsistent exercise of title, might be capable of being recognised.

MR BARTLETT: We would agree with that suggestion, your Honour. We would suggest a great deal could be left and much of our analysis in these submissions is based on that premise.

KIRBY J: I have not just understood quite yet why it seemed so important to your argument, except for its consequences downstream, to resist the notion of partial extinguishment given that we are talking of the interface of two legal systems which are very different and the common law system is going to have consequences depending on what the property rights of the common law system are.

MR BARTLETT: Of significance it would certainly seem to be that in the event of a refusal by this Court to accept the concept of partial extinguishment, a lot of other issues would not need to be addressed because immediately one determined that the entire bundle of rights had not been dealt with, then native title would be extant and there would not be any need to go further in the analysis.

KIRBY J: But seductive though it may be not to have to deal with other issues, it just seems an unreal concept. First of all, it seems to defy what the Court has said before in the common law cases. Secondly, it seems to defy what the statute has said, and, as far as I am concerned, I am going to be paying primary attention to the statute because that is the usual way of our courts. Thirdly, it seems to defy the logic of the interface between two legal systems, that different property interests will have different impact upon different Aboriginal communities asserting different rights and community rights in relation to land. It is just not a realistic way to view the interaction of two legal systems.

MR BARTLETT: Your Honour, we make these submissions in the alternative now. I am happy to rest on the previous submissions with respect to partial extinguishment.

McHUGH J: But is it not important from your point of view to maintain that there is no partial extinguishment because, unless you do, it may be very difficult to assert rights in respect of oil and minerals? Your argument about your right to the oil and minerals depends very much on your notion of what native title consists of, does it not, that it is not a bundle of rights?

MR BARTLETT: Our submission also contains the proposition that it entails use and occupation on enjoyment of the land, including surface of the land, and that normally carries with it ownership of the minerals beneath the land and, on that basis, we would suggest that the content of native title with respect to minerals, as we later do suggest, has not been extinguished by the operation of the Mining Act.

McHUGH J: But if part of your rights go, it seems to me there is some difficulty in maintaining then that you have rights to the minerals and oil.

MR BARTLETT: Only if those rights have been partially extinguished. Our submission is they have not. It does depend on this Court finding we had rights in the first place, however.

GUMMOW J: Mr Bartlett, when you talk about the Act, the Act in what form are we talking about?

MR BARTLETT: With respect to minerals, your Honour?

GUMMOW J: No, the Act. People keep talking about the Native Title Act 1988 .

KIRBY J: The Act no one wants to look at.

GUMMOW J: We are talking about the Act in its original 1993 form, are we not? What is the date of these applications? They fall for determination under the Act in what form? I just want to know the starting point. Do the 1998 Act amendments operate in a procedural way over the whole picture, or not?

MR BARTLETT: The 1998 Act was, in effect, when judgment was handed down at trial. However, the State of Western Australia had not acted upon all of the provisions at that time, so it is quite a complex arrangement with respect - - -

GUMMOW J: I just want to know what act you are referring to, that is all.

MR BARTLETT: The 1993 Act as amended, your Honour.

GUMMOW J: As amended?

MR BARTLETT: As amended.

GAUDRON J: Well, these claims were brought before the 1998 amendments took effect.

MR BARTLETT: They were brought but - - -

GAUDRON J: The question - they were to be determined according to the law as it then stood, what, when the judgment was given?

MR BARTLETT: When the judgment was given, your Honour.

GAUDRON J: Yes, and had the amendments taken effect then?

MR BARTLETT: I understand these amendments had taken effect at that time.

GLEESON CJ: Well, you might have an opportunity to check that over adjournment, Mr Bartlett. It is not that anyone is suggesting the outcome of the case turns on this, but when we come to write a judgment we have to refer to the relevant provisions of the statute. So if could after lunch let us know what print of the Act we need to look at and what are the relevant times of which we should be concerned with the form of the statute. We will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mr Bartlett.

MR BARTLETT: May it please the Court, I was asked to ensure which Act was applicable with respect to this matter before the break. The applicable Act is the Native Title Act as amended by the Native Title Amendment Act which came into effect on 30 September 1998. Judgment was handed down in this matter on 24 November 1998. There are complications arising from the different implementation legislation of the Northern Territory and Western Australia. Northern Territory did have implementation legislation in place on 1 October prior to the judgment being handed down but the State of Western Australia did not. We will be addressing these matters in more detail later on in relation to the Racial Discrimination Act 1981 and the operation of the Native Title Act.

Before the break we made submissions with respect to the significance of the requirement of a clear and plain intention to extinguish native title, seeking to emphasise that it was a protective presumption recognising the significance of native title. It leads, in our submission, to the first elements that flow from the significance of that requirement, that is, that any inconsistency which is relied upon must amount to an impossibility of coexistence. Only that kind of inconsistency can manifest a clear and plain intention to extinguish.

The authority in that regard we would point to is found in paragraph 71 of our submissions, in particular, his Honour Justice Gummow referring to High Court authority in Chief Commissioner for Railways v Attorney General and also of the Court of Appeal in England in the case of Yarmouth v Simmons. But the essence being that such an impossibility of coexistence is required, supported, I might say, by the other members of the majority, in particular his Honour Justice Kirby and his Honour Justice Toohey.

KIRBY J: What is the difference between "clear" and "plain"?

MR BARTLETT: I do not think there is a difference, your Honour.

KIRBY J: I did not think so either.

MR BARTLETT: I have seen the expression, "clear and distinctly". I suggest it is an attempt to emphasise - - -

KIRBY J: Just one of those formula.

MR BARTLETT: - - - the weight of the requirement and how clear it must be to protect property rights. If I might move to the major instances in where this requirement of inconsistency arises, it is in two contexts. Firstly, actual use of reserves and Crown land and, in particular, the Ord Project; and, secondly, with respect to particular Crown dispositions. Turning to the actual use of Crown land and the Ord Project in particular - - -

GLEESON CJ: Just before you pass from intention, whose intention are you speaking of?

MR BARTLETT: The intention of the Crown, your Honour. We are not suggesting there needs to be an actual intention. It is an objective intention which may be divined from the circumstances, but our emphasis is concerned to emphasise that we are in the realm of the protection of property rights and the weight of that requirement is what we are concerned about.

GLEESON CJ: Now, where the extinguishment occurs as the result of an executive action pursuant to legislation, where do you find the intention, in the legislation or in the act?

MR BARTLETT: We would suggest that it must be present in the legislation, that there be a clear and plain intention to bring about extinguishment, and that must also be reflected in the act. So we would submit that - - -

GLEESON CJ: I mean act with a small "a".

MR BARTLETT: I understand, your Honour. We would submit that the clear and plain element must be present in both the legislation which gives authority to the act to be undertaken, and in the undertaking of the act. We would submit that Justice Toohey at page 196 of Mabo [No 2] has made that point.

If I might proceed to consideration of actual use of Crown lands, we would submit that Chief Justice Brennan in dissent in Wik emphasised the requirements with respect to the actual use of reserves and Crown land at page 86 of Wik v State of Queensland, and if I might take you to those pages. Chief Justice Brennan on page 86 is referring to the concept of appropriation by the Crown of reserves or Crown land. In the fifth line, Chief Justice Brennan emphasises, in such a case:

the appropriation of the land gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose -

and then gives some indication of the kind of purposes the Chief Justice had in mind -

inconsistent with the continued enjoyment of native title - for example, by building a school or laying a pipeline. Until such a use takes place, nothing has occurred that might affect the legal status quo.

GLEESON CJ: Once it does take place, does it affect extinguishment or merely suspension?

MR BARTLETT: It would depend, your Honour, whether or not it was a permanent usage or not.

GLEESON CJ: All right. Take the case of building a school.

MR BARTLETT: It might well be conceived that a school was intended to be there for 100 years or more, your Honour, in which case we would acknowledge that there would have been extinguishment in those circumstances. If, however, it was some kind of camping school in the bush of a temporary nature then there would not have been extinguishment.

GLEESON CJ: What if it is merely intended to be there for an indefinite time?

MR BARTLETT: Well, it does depend always upon the particular circumstances, your Honour, and if it is a school in an urban setting I am inclined to suggest there would have been extinguishment, as I am sure Chief Justice Brennan contemplated by his remarks.

KIRBY J: Does this not get very close to the notion that the test is actual user as distinct from the nature of the legal incidence, which at least earlier writing in this Court has suggested is the test?

MR BARTLETT: But the actual user must be inconsistent with the incidence of native title. If, for example, it is a use of land as a national park, we would submit then there may be no inconsistency whatever and, again, as Chief Justice Brennan indicated in Mabo [No 2]. So it is actual user amounting to - it is not mere use of the land or not mere actual use will not necessarily extinguish native title; it must be actual use of an inconsistent nature giving rise to an impossibility of coexistence and, if I may continue the formulation, thereby manifesting a clear and plain intention to extinguish native title.

KIRBY J: But would not one usually see in that case - take the school, for example, that a certificate of title would be issued to the Department of Education or somebody for the dedicated use as a school and, therefore, there would be some assertion of a legal interest. You cannot just put up a school without some legal basis for doing so.

MR BARTLETT: I am sure Chief Justice Brennan was contemplating the circumstance where land is set apart for school purposes and no certificate of title issues. I acknowledge that if a certificate of title issued, that may be a very different circumstance, because presumably a freehold grant would have flowed from that.

GLEESON CJ: But Chief Justice Brennan, as appears from line 2 on the page you are reading, is talking about unalienated Crown land, is he not?

MR BARTLETT: Yes, he is, your Honour.

GLEESON CJ: That is what the whole discussion is about.

KIRBY J: But the notion of putting up a school on unalienated land without some permanency of title seems odd to me, at least as far as I understand what actually happens.

MR BARTLETT: With respect, your Honour, the history of the Crown Lands Acts and of the imperial and local variety always contemplated land might be reserved for school purposes and a school might be erected purely on the basis that the land had been reserved. If your Honours look at a lot of the usages that Chief Justice Brennan makes reference to, it is in connection with that list of public purposes with respect to the imperial and domestic Land Acts. In any event, the reference by Chief Justice Brennan makes clear that future use is not anticipated as extinguishing native title, nor merely because the land might be required. It is actual use that is demanded and, accordingly, that is our objection to the conclusions reached by the majority of the Full Court with respect to the Ord Project Area.

McHUGH J: But why is actual use required? There does seem an inconsistency between the Chief Justice's approach in the passages at page 86 and what he had to say about the extinguishment in the case of the leases in Mabo. There he said that giving the lease and investing the reversion in the Crown was inconsistent with any native title. I know you say he could not have been intending to transfer title or beneficial ownership in any way, but that seems to me what he is saying. Do you concede that if the Crown was not simply relying on its radical title but was transferring beneficial ownership to itself, that that would be the end of native title?

MR BARTLETT: As Chief Justice Brennan makes clear, if, in fact, the act is of such a nature that its actual use is entirely inconsistent with native title, then beneficial ownership is appropriated to the Crown, hence, his usage of the term in that passage, but I believe the Chief Justice - - -

McHUGH J: But to take up Justice Kirby's questions, if the Crown is going to build on land, there must be title in somebody, that is, the beneficial title, as opposed to the radical title, must be in the Crown. Why does that not extinguish any native title rights? I just do not follow. There may be an explanation. Perhaps, I just do not understand it clearly.

MR BARTLETT: Well, perhaps, if I can turn to the Ord Project Area, most of the land covered by the Ord Project Area is today vacant Crown land and yet the Crown has purported to exercise a great deal of control and institute some public works with respect to that area. The Crown assumes the ability to develop lands, albeit, it has no paper title to the lands, it relying purely on its radical title.

CALLINAN J: You might need to keep the catchment area pure and control a huge area in order to make the dam effective.

MR BARTLETT: There is no question that the Full Court majority made reference to the needs for protection of erosion, but we would suggest that that kind of usage is not inconsistent in the degree required with respect to native title. But it is also clear that the Full Court made reference to setting aside the land for future development but - - -

CALLINAN J: We are talking about the Newcastle Hospital Case and the passive buffer and things of that kind, which are all part of a dam usage.

MR BARTLETT: We would submit that with respect to the Newcastle Hospital Case, where the land was, in the words of Lord Denning, in its virgin state, kept for its own special purposes, that is not a use of land that will extinguish native title. We would submit that emphasises the need to go back to what are the fundamental principles underlying this area. We are concerned with parcel-by-parcel dispossession of Aboriginal people of their land, a concern with the protection of property rights, and in that circumstance, what many would regard as a non-use of land is not sufficient to bring about such an inconsistency.

CALLINAN J: If it is in the catchment area it might be that perhaps in that country - I do not know - water would only flow once in 10 years, or something of that kind, but that might be a very critical flow in order to fill up the dam or keep the dam full.

MR BARTLETT: But if the use was inconsistent, your Honour, to such a degree, we would acknowledge that there may have been extinguishment, but that kind of usage with respect to either future development or mere protection from erosion or a mere buffer zone, we would submit, is not an inconsistency which, given the protection due native title, is sufficient to extinguish native title.

CALLINAN J: I understand.

HAYNE J: Buried in there, there are some assumptions, are there not, about the rights which are being spoken of as possibly extinguished? Unless you first identify what are the rights that are the subject of the alleged extinguishment, the debate about extinguishment may occur, may it not, again at too high a level of abstraction, because you cannot determine the way in which the two said to be "competing" rights intersect until you identify what they are. Thus, at least for my part, debate in terms of native title undifferentiated and assertion that use is necessary to extinguish it is a debate that does not lead to any real joinder of issue.

MR BARTLETT: Your Honour, we do not disagree with the suggestion that the content of native title needs to be identified before determining extinguishment but to provide something by way of an answer. If, in fact, it includes a right to fish and forage, then we would suggest, for example, that the use of the land which has been made in this case with respect to most of the Ord Project Area is not inconsistent with that particular right or rights.

GLEESON CJ: The rights were declared or found, were they not, by Justice Lee?

MR BARTLETT: Justice Lee found there to be a right to possession, occupation and use of the land. It had been extinguished in some parts of the Ord Project Area with respect to the dam area and spillways and irrigation areas - - -

GLEESON CJ: Where do we find Justice Lee's findings as to the rights about which we are arguing? It is in his determination, is it not, on pages 639 and 640?

MR BARTLETT: Yes, your Honour, and they are listed in paragraph (3) at the bottom of page 639.

GLEESON CJ: Including, for example, a right to decide who can go there.

MR BARTLETT: But the determination was made subject to paragraph (5) indicating that they were concurrent rights and in many circumstances subject to rights otherwise declared in law or held by others.

HAYNE J: Just as a matter of clarification, paragraph (5) that we find at 640 of the judgment at first instance, was overtaken, was it not, and it was amplified to the form that appears at 175 in the Full Court? Is that right?

MR BARTLETT: Yes, I believe so, your Honour. The Ord Project Area contemplated initially, back in the 40s and 50s, the development of some 70,000 hectares of irrigated land. To date only 14,000 hectares have been developed, indicating the great degree to which future development was contemplated in the conception of the Ord Project. Land in excess of a million acres was also resumed for the purpose of the project. Much of that land, as is indicated in the Federal Court majority at paragraph 434, was taken, amongst other reasons, because to leave it behind rendered it non-viable as cattle country.

Accordingly, that explains, in part, why so much of this land has not been actually used, except perhaps under the characterisation as a buffer zone, or land set aside for future development, or land to protect the reservoir from erosion. That has not, of course, prevented it being used for grazing pursuant to grazing leases which have been issued.

HAYNE J: Now, is that designation of those areas consistent with the continuation of a right to make decisions about use and enjoyment, or a right to control access?

MR BARTLETT: We would suggest the content of that right would have been severely modified, but it would be a right that might be enforceable against others other than the Crown or the Minister in whom the Ord Project Area is under the control of.

HAYNE J: Because it seems to me that that is the necessary level of inquiry, not the abstract level that you are presently debating. I speak only for myself.

MR BARTLETT: With respect, your Honour, the determination made by the trial court was one for rights of possession and occupational use, including control of the area. As I indicated in my response, it is our submission that, in fact, the right to control access would have been diminished by the powers arising under the Rights in Water and Irrigation Act and the powers vested in the Minister accordingly, but they would still be rights that would be exercisable against other parties. They would not be exercisable against the Crown, but there would still be some content. The nature of native title that would be left would be within that context of the water legislation governing the Ord Project Area.

HAYNE J: But could the claimants say under this rubric, "You may, you may not", and can the Crown say, "The first group may not and the second group may"?

MR BARTLETT: The Crown would have the superior right with respect to determining access.

GLEESON CJ: Can the claimants under this rubric charge the public for access?

MR BARTLETT: Not if the Crown refused them the right to do so.

McHUGH J: Now, this seems to me to go to the very heart of this problem. What title would the Crown be exercising when it controls these rights? Supposing, for instance, it wanted to bring an information for intrusion or take advantage of the ejectment action. It would not be bringing the action in its capacity as holder of the radical title, would it?

MR BARTLETT: We would submit that the action would arise under the legislation and the powers vested in the Minister to control the Ord Project which are, under the Rights in Water and Irrigation Act, extremely general discretionary powers.

McHUGH J: The problem I have about the passage in 86 in Wik that you refer to is this: the radical title gives the Crown the right to create interests and estates in the land, it is associated with sovereignty and native title is a burden on it. But once the Crown moves in some way to exercise dominion over land, it must be departing from its radical title and acquiring beneficial ownership. If it has acquired beneficial ownership, how can native title survive? What has it to do with what use it has?

MR BARTLETT: We would submit, your Honour, that the creation of a reserve is essentially merely the passage of the Order in Council and the drawing of a line on the map. It does not, in fact, bring about any result on the ground. It does not necessarily bring about any result whatever on the land and, accordingly, in those circumstances, Chief Justice Brennan has looked to something more to deny Aboriginal people their lands, as would arise in these circumstances, without notice, without consultation and without any compensation.

McHUGH J: I appreciate the way you put it, but the land has been appropriated for a purpose, so the Crown no longer, it seems to me at the moment, relies on its radical title. You know these cases backwards, but is there any case where the radical title has been anything other than, in effect, the container which holds the estates, the interests or has a burden imposed on it under native title? I mean, it is associated with sovereignty.

MR BARTLETT: We would agree, your Honour. My understanding of radical title is a power of disposition. It has no beneficial content whatever, but it is an absolute power of disposition and in that context exercising that power of disposition merely by declaring a purpose for the land, which is what the creation of a reserve amounts to, does not connote the vesting of beneficial ownership in the Crown. That occurs when something concrete is undertaken.

KIRBY J: I took your earlier answer to me to indicate - and this would be a legal question to be clarified - that the Crown out of its radical title does not grant to the Crown a beneficial title. It simply uses the land. It may, to a particular department, a corporation or the Ord Authority, grant a particular title, but ordinarily it simply uses its land. It does not first grant itself a species of tenure. Is that correct?

MR BARTLETT: That would seem to be the practice followed in this region.

KIRBY J: It seems very odd to fit it with registered title, but maybe not.

McHUGH J: But supposing the Crown wants to bring an action to protect the land. In what capacity does it do it then? As beneficial owner?

MR BARTLETT: As sovereign, we would submit, your Honour, pursuant to its powers under the Act whereby it has the authority to control what takes place, pursuant to the regulations under the Rights in Water and Irrigation Act or perhaps the Conservation and Land Management Act which has regulations governing Crown lands.

McHUGH J: So it brings its action as owner of the radical title?

MR BARTLETT: As sovereign, as the possessor of the power of disposition.

McHUGH J: Without having any interest in the land itself, then, on that basis, apart from the radical title?

MR BARTLETT: Until they have acted upon the setting apart of the land.

GLEESON CJ: Does building a fence around it constitute acting upon it? That is the way you set land apart.

MR BARTLETT: I agree. Acting upon it in a way that is inconsistent with native title.

GLEESON CJ: Well, the way you set land apart usually is by building a fence around it.

MR BARTLETT: Certainly in small lots with respect to the private land-holder, certainly a fence would give rise to adverse possession, perhaps, in those circumstances - we will come to this later on - but a cattle fence of a one or two wire variety we would not necessarily suggest sets the land apart in the context of pastoral leases. So, our submission would be it does depend upon all the circumstances to see if there is an inconsistency, and I do bear in mind the difficulty of this at this level of abstraction but - - -

GLEESON CJ: Does it also depend on the size of the fence?

MR BARTLETT: It certainly would depend upon the size of the fence. A concrete wall erected around an area would certainly seem to be a very effective way of setting apart the land and - - -

GLEESON CJ: What about if you only had one or two strands of wire but they were electrified?

MR BARTLETT: I appreciate the nuances one ends upon, but I would prefer, if I can put it so crudely, more circumstances to inform me as to what the entire context was in order to determine if there was an inconsistency.

HAYNE J: Does it mean though that if under a relevant statute in respect of a designated type of reserve, for example, the relevant Minister has power to control access to the land, that your submission is until the power is actually exercised there is no adverse effect on any existing native title?

MR BARTLETT: That is our submission until the power is exercised in a way such that it is inconsistent with native title. If the control was such that there was an absolute prohibition on any entry by any party at any time permanently, we would not disagree that native title is extinguished.

GLEESON CJ: This sentence in the judgment of Chief Justice Brennan in Wik that you relied upon is in fact part of a paragraph that begins on the bottom of page 85. It shows that what he is talking about are "laws or acts by which the Crown acquires full beneficial ownership" that extinguishes native title. That is the particular category he is discussing at this stage of his judgment.

MR BARTLETT: And the reference we take out of that is that acts whereby the Crown acquires full beneficial title. There may be other laws to that effect as well, but usually, clearly, setting a part of land as a reserve is pursuant to the Crown Lands Act of a particular jurisdiction.

GUMMOW J: You have to go back to the bottom of page 84, have you not? This is category (iii).

MR BARTLETT: We acknowledge that Chief Justice Brennan is making a general observation, a general summation, of his estimation of the circumstances in which native title is extinguished, but we would submit that the language used on page 86 is with reference to the appropriation to itself by the Crown of Crown land and reserves in those circumstances in which it takes place.

Your Honours, perhaps I should move on. We have been looking at the Ord Project Area. An aspect of the Ord Project Area is Lakes Argyle and Kununurra and the reservoirs that were created by the dams with respect to those reservoirs. We have some brief submissions at paragraphs 96 through to 98. The element we would wish to emphasise is that the areas that were inundated permanently by the creation of Lakes Argyle and Kununurra were naturally flooded, not necessarily the entire area but they were from time to time inundated, as the references we have given to the project engineer's evidence indicates.

It must be said, and Western Australia has pointed out, there are no very clear findings below on this question because neither the trial judge nor the majority of the Full Court thought it necessary to do so. The point we would make with respect to Lake Argyle in particular is that it is clear that the majority of the Full Court thought, as we indicate in paragraph 97, that native title rights could continue to be exercised. That is, there was the possibility of coexistence. Accordingly, in our view the flooding of the land did not extinguish native title. There was no sufficient degree of inconsistency.

If I might leave the Ord Project Area and allude very briefly to two other elements that might be said to arise under this head at paragraphs 99 to 101. One is the Argyle Diamond Project and in this context we are speaking only of the notion of the project - not the lease, the project itself - extinguishing native title. We would suggest, for the same reasons we have just advanced - - -

GUMMOW J: What do you mean by "the project"?

MR BARTLETT: The majority of the Full Court in paragraph [554] seemed to suggest, the first sentence of paragraph [554] - - -

GUMMOW J: Well, that is referring to some defined term. There is some earlier paragraph where they say what that means. It is not a legal expression.

MR BARTLETT: Which?

GUMMOW J: The phrase "Ord Project".

MR BARTLETT: Your Honour, I am endeavouring to indicate the approach adopted in paragraph [554] with respect to the Argyle Diamond Project - - -

GUMMOW J: Well, that is not a legal expression either.

MR BARTLETT: - - - is that adopted with respect to the Ord Project.

GLEESON CJ: There was an anterior problem, was there not? Did they not find that native title had been extinguished in some areas by the legislation, by the Mining Act?

MR BARTLETT: On one understanding of the reasoning of the Full Court it is suggested that the statutory scheme of the Mining Act extinguished native title, but also it would seem in paragraph [554] the suggestion is that the actual project, apart from the lease - - -

GUMMOW J: But what do you mean by the "actual project"?

MR BARTLETT: The area covered by the Argyle Diamond Agreement Act.

GUMMOW J: An area of land.

MR BARTLETT: The area covered by the Argyle Diamond Agreement Act.

GUMMOW J: An area of Western Australia to which a particular statute applied in a particular way.

MR BARTLETT: Apart from the mining leases that were granted pursuant to that Act. We will address that separately, because we acknowledge that is a very different issue, but merely by the undertaking of the project did not necessarily - - -

GAUDRON J: But, again, we are not getting anywhere. We are talking about an area of land to which some laws were applicable and perhaps some agreements were applicable and perhaps some leases were applicable. Now, can you identify the laws, the agreements and the leases that are said to constitute the Argyle Diamond Project?

MR BARTLETT: Yes, your Honour. In paragraph 100 there is a reference to the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act - that is the Act to which we are referring - which ratifies an agreement between the mining joint venturers and the Crown.

GLEESON CJ: What was that paragraph number again, please?

MR BARTLETT: Paragraph 100 of our submissions, your Honour. My apologies.

MR BARTLETT: The Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1898 authorised the construction of certain infrastructure and the issuance of certain mining leases and, in particular, one mining lease.

McHUGH J: But was not the Ord River Project the product of notices that were given under section 17 of the Public Works Act, or am I wrong?

MR BARTLETT: Most of the land resumed for the Ord Project was resumed pursuant to section 109 from pastoral leases. It was not taken pursuant to the Public Works Act. So there are areas which are affected by the Public Works Act. We will come to those tomorrow morning. What I am endeavouring to submit to your Honours is that the mere undertaking of the project itself did not - - -

GAUDRON J: Again, I do not think we understand it. The passage of the Act - - -

MR BARTLETT: The majority of the Full Court suggests in that paragraph [554] of the majority's reasons in the sentences that - I believe it is the third sentence at line 40 and thereafter of paragraph [554]:

It seems to use that, as in the case of the Ord Project, the very size of the infrastructure of such a major project as the Argyle Venture, when coupled with the nature and intensity of the large range of activities contemplated in its execution, all indicate the existence of a situation of complete inconsistency.

GAUDRON J: So that their Honours are there talking about the act, are they, as ratifying the agreement?

MR BARTLETT: Your Honour, I believe they are talking about the undertaking of the project pursuant to the act.

GAUDRON J: Well, has it been undertaken there?

MR BARTLETT: It has been undertaken but not so as to bring about any development on the particular land which is under claim in this case, which is the point which I, perhaps, neglected to make clear. That, in fact, this particular piece of land involved in this claim has not been the subject of any mining or any development. But, yet, the declaration of this area as being part of the project has led to a finding of complete inconsistency and accordingly extinguishment in the view of the majority of the Full Court.

Your Honours, all I wish to do with respect to this passage was point out that a similar line of reasoning was used with respect to the Argyle Diamond Project. Our main interest with respect to the Argyle Diamond Project is with respect to the mining leases that have been issued in the area.

The other area where similar reasoning was employed was with respect to two reserves, and I do not really wish to dwell on those either, where Justice Lee determined that the lands involved were open bushland and, accordingly, there had been no actual use that extinguished native title. Whereas, the majority of the Full Court took the view that Justice Lee had taken too narrow a view of the requirement of use to bring about an inconsistency. We would submit that there has been no actual use of the majority of those reserve lands, and, accordingly, there is no extinguishment.

If I might move on to look at particular Crown dispositions, your Honour. There are a variety of dispositions here which our written submissions address. I would like to linger most on the mining leases, but if I might allude also to elements of the others in passing over them. The first is the permit to occupy granted by a Minister of the Crown to another, thought, in fact, it was the same person, over 76,000 acres of land in the claim area. This permit was held by the majority to extinguish native title. Contrary to the conclusion of his Honour Justice Lee, his Honour Justice Lee's position, which we would seek to sustain, took the view that, in fact, the use that was contemplated by this permit was that of grazing lands. In essence, what the grant of this permit amounted to was another way of reserving land for grazing. The permit did contemplate in the future that, perhaps, a grant in fee simple might issue, but no such grant ever issued. It is our submission that the use that was made of the land, the nature of the permit, and the fact that a Crown grant never eventuated, denies extinguishment in these circumstances.

CALLINAN J: Which paragraph of your submissions - - -

MR BARTLETT: Paragraphs 104 to 106.

CALLINAN J: Thank you.

KIRBY J: Was the permit made out of the radical title or out of the Crown's general title, or what?

MR BARTLETT: Out of the Crown's radical title conferring upon it a power of disposition to the - a permit to occupy is a tenement or tenure which was included in the schedule to the Land Act. It did not necessarily need to be issued to the Crown although it was in this particular case, or Minister of the Crown.

KIRBY J: That was an Act operating throughout the whole State.

MR BARTLETT: Yes, your Honour.

GAUDRON J: I am very confused. Do the appellants think that we can determine whether or not there was extinguishment on the basis of what is contained in your written submissions?

MR BARTLETT: Your Honour, our written submissions do refer to the findings of fact made by the trial judge - - -

GAUDRON J: Well, again, I know those are findings of facts. You, however, propound four tests for actual inconsistency. You may or may not be right in them and perhaps if you are right, then maybe you can determine these issues. I, for one, do not think you are right, at this stage. I do not think they can be exclusive tests. When we get to the permit to occupy, one is, in fact, going to have to look at the terms of the permit and also the terms of the legislation, I would have thought. I should not have thought one could determine it simply on the basis that the land was - well, I do not know. I do not know whether the land was used. You tell me it remains otherwise undeveloped. I do not know what "otherwise" means, and I very much doubt it can be determined without looking at the actual permit and the legislation pursuant to which it was issued.

MR BARTLETT: I do understand the difficulty and the dilemma, your Honour. That is why we have endeavoured to indicate the facts as found, both by the trial judge and the majority - - -

GAUDRON J: But to what end?

MR BARTLETT: To applying the criterion of the impossibility of inconsistency, whether or not that criterion has been satisfied.

GAUDRON J: But again I do not understand to what end. Let it be assumed, for example, that it were held that impossibility of coexistence was a criterion but not the sole criterion, would that mean that the matter should go back to the Full Court to be determined rather than that we should be trying to come to a conclusion, as your submissions tend to suggest, by reference to the tests you propose?

MR BARTLETT: We would submit, your Honour, that it is possible for the Court to make this determination but by the same token - - -

GAUDRON J: But surely that is only if your criteria are exhausted and exclusive.

MR BARTLETT: By the same token, your Honour, the matter could be sent back to the Full Court for - - -

GAUDRON J: But am I right in thinking the conclusions for which you propound would only follow if the four criteria you nominate are exhaustive and exclusive?

MR BARTLETT: Yes, your Honour, but they can operate independently, in the sense that if any of those criterion are not met, that extinguishment would not have occurred.

GAUDRON J: If any of them, or if none of them?

MR BARTLETT: If any of them are not met, in the sense, if we look at the permit - - -

GAUDRON J: You are putting forward four criteria. You are putting forward a test of four matters each of which you say must be satisfied before there can be extinguishment.

MR BARTLETT: Yes, your Honour.

GAUDRON J: Yes. You leave out of contention altogether, do you, in that regard, the legislation pursuant to which the permit was granted to deal with this - whatever it is, or the legislation in question, the instrument creating rights in third parties, using that in its broader sense? Is that right? You leave that out.

MR BARTLETT: Not at all, your Honour, we regard that as the essential element, but, your Honour, with respect, we were instructed to provide the concisest possible submissions, and we have done that by reference to the findings and the characterisation of the framework and authority provided - - -

GAUDRON J: I am just putting to you, suggesting to you, that that may not be adequate.

KIRBY J: After all, in the Wik Case, we looked very closely at the pastoral leases involved, we looked very closely at the legislation, and the judgments in the Wik Case are analysis of both of those things. Whereas here, you are inviting us to do this at a rather superficial level. I am with Justice Gaudron, I think we have to get into, unfortunately, the terms of the legislation, see what it is that justified the Crown in giving this permit.

MR BARTLETT: I agree with your Honours entirely on this matter, that it is necessary to look to the Land Act 1898 under which this permit was granted.

GAUDRON J: Are we going to have the benefit of submissions in that regard?

HAYNE J: I must say that, having turned it up at volume 2 of the legislation, page 340, its meaning is not self-evident. Having turned up the permit to occupy at volume 5, page 1106 of the book of materials, the meaning of that is not self-evident.

GAUDRON J: Really, I think what this comes down to is, at some point, you have to work out what precisely, if you are correct, your submissions enable this Court to do, and whether one - the position of the appellant should not be something like: "Look, the Full Court got it wrong doing this. We do not ask the High Court to go further than to send it back, telling the Full Court that they got it wrong and that they now ought to do it properly".

MR BARTLETT: Your Honour, we do not object to that method of proceeding at all - - -

GAUDRON J: It is not a question of what you object to, it is a question of where your submissions take us. It seems to me, they are taking us down blind alleys.

KIRBY J: You see, I remember very vividly Mr Sofronoff began Wik by asking us to look at the pastoral lease, and then he took us to the statutes. I am not being critical; different people present cases and we are down the track from Wik, but I just do not think we can deal with it at this level. We have to get into that Act, we have to get into the permit, and then, taking it as an illustration, we have to ask ourselves, "Is the approach of the Full Court correct in this case?" Perhaps from a couple of instances - this was Justice Hayne's question to you earlier today - what were the findings of fact? It is very hard to deal with cases at an ethereal level. You have to be able to get your teeth into actual facts. That is the common law technique.

MR BARTLETT: I understand that, your Honour, which is why I was hoping not to linger on the permit to occupy, and single out some dispositions where we would focus on them a little more closely, because of the impossibility, we acknowledge, of any thorough canvassing of these issues in oral argument before the Court.

McHUGH J: But two matters are critical in this area, neither of which, I think, are mentioned in your submissions. First of all, the permit in question gave the grantee the right -

to enter upon the parcel of land, and to hold and enjoy the same for its absolute use and benefit -

and it was issued knowing that that could be converted into a fee simple, an estate in fee simple. And it was grazed on between, what, 1914 and 19 - for many, many years. Have you not got to come to grips with those facts? I mean, you just ignore them.

MR BARTLETT: We have endeavoured to come to grips with them by emphasising that, in fact, this was a disposition by one aspect of the Crown to another for a use of land that might be characterised as essentially that of a reserve nature. It always remained in the interest of the Crown and was used for grazing, a use that is not conventionally regarded as being inconsistent with native title.

McHUGH J: But the very permit was different from, say, the leases in Wik. It gave them the right to use it for absolute use and benefit and as a step in getting a fee simple, which apparently they never did. But up to 1962, they were grazing and watering cattle there, pending their slaughter.

KIRBY J: Presumably you say that, though given a different title, it is generally analogous to the pastoral leases in Wik. Is that what you are contending?

MR BARTLETT: That is what we are submitting, but also submitting it does not have the - - -

KIRBY J: Would you not be in a better forensic position to urge that upon us if you took us to the legislation, if you took us to the permit and then drew the analogy with what was the case in Wik because I can well imagine that if this is a permit that allowed the Crown to another agency, the Crown to allow cattle to graze, that the Aboriginal people continued to go about their customs and traditions and occupation, that we may well be in a position analogous to Wik.

MR BARTLETT: We would like to do that, your Honour, but, with respect, you have no hope of meeting the time constraints, given the number of issues and dispositions before the Court. That is essentially the reason we are not taking you to every one of these dispositions, it is not possible.

KIRBY J: Speaking for myself, I think you have just got to take one or two of your best examples and say, "Well, this is analogous to Wik", because, otherwise, it is at a level where you are really casting quite unreasonable burdens on this Court to go ferreting around amongst the papers, a huge amount of material. I mean, already the written submissions in this case greatly exceed those which we normally receive.

HAYNE J: This case has always been put forward as raising points of principle, not simply points of particular application.

MR BARTLETT: Your Honour, that is what we are suggesting we are endeavouring to do.

HAYNE J: The points of principle, from my point of view, would be much better elucidated at a level of specificity, rather than at this level of abstraction, utterly divorced from the statute under which your clients claim rights.

MR BARTLETT: Your Honours, if I may go to mining leases, which is the area I thought we might focus on with a little more specificity, and in doing so, if it is possible to look at volume 7 of the book of materials.

KIRBY J: Which paragraph of your written submissions is this?

MR BARTLETT: This is at paragraph 124. In volume 7 - - -

GAUDRON J: Mr Bartlett, at some stage - really what you are seeking to do, as I understand it, is to have this Court put its imprimatur on several broad principles, as though this were a roving commission into native title. I presume at some time, someone from your end of the Bar table will deign to tell us precisely in what respects you say the Full Court erred, rather than propound this catalogue of broad principles?

MR BARTLETT: Our position is that the Full Court adopted a test of inconsistency which was at a much lower level than that demanded by that of impossibility of coexistence.

GAUDRON J: I know, but you may be setting it too high and then this Court is left with this undefined middle ground that has not been met by argument.

MR BARTLETT: If we could turn, your Honours, to pages 1510 to 1517 of volume 7 of the book of materials. This is a mining lease granted originally to Freeport Bow River Properties.

CALLINAN J: But that is just the application with the schedule of conditions. Where is the actual grant? Is it in the Act somewhere? Where is the actual grant?

MR BARTLETT: The actual form of lease takes this form, your Honour. This is what appears on the mining tenement registry.

CALLINAN J: But there is no grant anywhere here, is there, or am I missing it?

MR BARTLETT: I believe the grant is assumed pursuant to section 71 of the Mining Act 1978 .

CALLINAN J: Where do I find that, section 71 of the Mining Act?

MR BARTLETT: The Mining Act is number 88 of the Crown Solicitor's Office of Western Australia's volumes of legislation.

CALLINAN J: Section 71, you say?

MR BARTLETT: Section 71 provides for the grant of a mining lease.

HAYNE J: It is page 1276 of volume 5 of the legislative materials, is it?

MR BARTLETT: Page 1162.

KIRBY J: Do you notice down at the bottom of page 1510 there is a stamp, "COMPUTER ENTERED", so there must have been some sort of entry on some title document of this mining tenement.

CALLINAN J: You have to look at section 78, do you not? Is that correct? That says that:

a mining lease shall remain in force -

(a) for an initial term of 21 years -

Then section 82 seems to contain standard covenants and conditions.

MR BARTLETT: Section 79 indicates that upon the approval of an application:

the applicant shall be deemed to be the holder of the lease comprising the land -

section 79(1).

GAUDRON J: Now, it is accepted, is it, by your side of the Bar table, that this lease was validly granted?

MR BARTLETT: Yes, it is, your Honour, subject to the operation of the Racial Discrimination Act 1904 and the Native Title Act, which raise other issues which will be addressed tomorrow.

CALLINAN J: You would rely upon section 82(1)(b), would you not:

subject to the conditions that the lessee shall . . . use the land in respect of which the lease is granted only for mining purposes in accordance with this Act -

is that right?

MR BARTLETT: We do, your Honour, and there is a similar provision in section 85 which limits the occupation of the land to be that "for mining purposes" under section 85(2). What I was hoping to draw your Honours' attention to was the particular terms and conditions of this mining lease because they are essentially standard across the mining leases issued in Western Australia and, in particular, one of those conditions.

GAUDRON J: Where is the power to grant the lease to be found?

MR BARTLETT: Section 71.

GAUDRON J: What does "subject to this Act" bring with it? What baggage does that carry? Nothing?

MR BARTLETT: I am afraid that would carry a great deal of baggage in relation to priority and the compliance with the application requirements, but none of those matters are being challenged by us in our submissions.

GAUDRON J: A mining lease can be granted over private land?

MR BARTLETT: Yes, your Honour. It can be granted over freehold and it can be granted over pastoral lease. Freehold is regarded as private land; pastoral lease is regarded as Crown land pursuant to the Mining Act.

GAUDRON J: Thank you.

MR BARTLETT: The terms and conditions set out on page 1511 of the book of materials provide for protection of Aboriginal sites, they provide for prevention of pollution - I have indicated in the written submissions at paragraph 125 how these conditions operate - and provisions for rehabilitation. But the particular provision I wish to refer to is numbered 2 on page 1511, namely:

No developmental or productive mining being commenced until . . . a plan of the proposed operations -

has been submitted -

to the State Mining Engineer for assessment; and until his written approval has been obtained.

The significance of that requirement must be understood, we submit, in the context of the use of mining leases in Western Australia. They are granted to any person upon application who is first in time. They do not necessarily contemplate that any mining will take place. Indeed, as the condition indicates in the standard form of mining lease, no mining can take place until the State mining engineer provides written approval of the proposed plan of operations.

What we would submit is that the significance of that particular condition is that there is no right to mine until approval by the State mining engineer is provided. Until that approval is granted, there is no inconsistency with native title such as to bring about the extinguishment of native title.

CALLINAN J: What about section 85(2) which, at first sight anyway, seems to contemplate a somewhat larger grant than a grant simply for mining purposes.

(a) is entitled to use, occupy, and enjoy the land in respect of which the mining lease was granted -

Do you read "use, occupy, and enjoy the land" for mining purposes? Is that how you want it read?

MR BARTLETT: We read that as a limitation, particularly in the context of the section to which your Honour earlier referred, 82(1)(b), namely, that the land can only be used "for mining purposes". We would stress that "mining" is defined to include exploration. Mining is not merely production. So, in the context of a grant of this nature, until written approval is granted, the land can only be used for exploration purposes, which we would understand from Mabo [No 2] not to be inconsistent with native title.

GAUDRON J: But at some stage mining operations were carried out.

MR BARTLETT: On most of these leases, I do not believe there were. There are thousands of mining leases issued every year in Western Australia.

GAUDRON J: Let us talk about this Argyle lease.

MR BARTLETT: I should stress, your Honour, the Argyle mining lease has no clause of this variety No 2. It is the general mining leases issued under the Mining Act, not the Argyle lease issued under the Argyle Joint Venture Agreement Act. The Argyle mining venture was subject to securing different approvals under the special Act and those approvals were granted. So the force of our submissions in this respect is directed towards other mining leases issued under the Mining Act generally, not that issued to Argyle under the Special Agreement Act dealing with the Argyle Diamond Mine.

GLEESON CJ: Just to understand the significance of this argument, in paragraph 525 of their reasons, the majority in the Full Court had earlier concluded that provisions of the Mining Act (WA) and the Petroleum Act 1936 (WA) produced the result that "any native title that may have existed in relation to minerals or petroleum has been extinguished". Is that in contest in this appeal?

MR BARTLETT: It is in contest, but not at this point. The focus of our - - -

GLEESON CJ: At this point, we are not concerned with any assumption that your clients might have any rights or interests in minerals or petroleum.

MR BARTLETT: No, your Honour. This is concerned with perhaps a native title right to forage whether that has been extinguished by the grant of the mining lease.

GLEESON CJ: Thank you.

McHUGH J: Correct me if I am wrong, but are not 44 - there are 52 leases involved in this aspect, are there not? Are not 44 of them part of the Ord River Project and were extinguished, according to the Full Court, under that regime?

MR BARTLETT: There certainly are overlapping elements here,. depending upon findings on one area may preclude findings on another, but not completely, your Honour. There are leases outside that area as well.

GAUDRON J: What part of the joint judgment is this directed to? Can we have that drawn to our attention so we - - -

GLEESON CJ: Paragraph [546] and following.

MR BARTLETT: I believe in paragraph 124 the submissions endeavour to indicate - - -

McHUGH J: No, but the judgment, Mr Bartlett.

GLEESON CJ: What paragraph of the reasoning in the judgment of Justices Beaumont and von Doussa is this directed? Where did they go wrong?

MR BARTLETT: Paragraph [584] is the conclusion of the Full Court's analysis of the mining leases - from [576] to [584].

GLEESON CJ: So when they say "apart from the extinguishment of native title rights in the minerals", and that is a reference back to the paragraph that I earlier referred to, paragraph [525], they said apart from that, "all native title rights in the areas of lands leased were also extinguished."

MR BARTLETT: Yes, your Honour.

GLEESON CJ: What is the step in the process of reasoning - which paragraph shows the erroneous step in the process of reasoning leading to that conclusion?

MR BARTLETT: Well, the analysis of the majority is found at paragraph [583] in which our submission was that:

the mining lease were neither permanent, nor impossible of

co-existence with native title, so as to manifest a clear and plain intention to extinguish.

Then the references by the majority to the various elements in which the majority reject those submissions.

GLEESON CJ: By "permanent", you mean something different from "indefinite"?

MR BARTLETT: Yes, your Honour.

GLEESON CJ: What is the difference?

MR BARTLETT: Having said that, your Honour, indefinite may be contemplated such that it is permanent.

GLEESON CJ: Let me give you an example in relation to a particular parcel of land to test this notion of permanence in your submission, in relation to inconsistency. There is a parcel of land in Sydney, down near the harbour that is occupied by the Governor of New South Wales, and there was some litigation in the Privy Council about that in [1915] UKPCHCA 1; 19 CLR 343 at a time when there was a dispute as to whether it was the Commonwealth or the State government that could control it, but if you look at the judgment of the Privy Council, you will find a reference to the fact that that land was never the subject of any legislation.

All that happened was that a government official was permitted to build a dwelling house on it and reside there, and he did. Now, that was not the first Government House that had been built in Sydney and I am not sure whether, in your submission, that would be described as intended to be permanent.

MR BARTLETT: Our submission would contemplate that the building of a structure of that nature on what would seem to be vacant Crown land would be permanent and would extinguish native title.

GLEESON CJ: As distinct from indefinite?

MR BARTLETT: As distinct from indefinite. The circumstances would suggest the permanence that would extinguish native title.

GLEESON CJ: What the Privy Council said about it was this:

It was built at the instance of the Governor for the time being for the use of himself and his successors. In this sense, and in this only, has it been "appropriated" to the use of the Governors of New South Wales. At no time have members of the public any right to use it.

I assume native title was extinguished.

MR BARTLETT: We would agree with that assumption, because of the nature of the act that took place upon that particular land.

GAUDRON J: Mr Bartlett, the reasoning of the Full Court seems to be at paragraph [581]:

it seems to us that the statutory character of these leases, when their other aspects are also taken into account -

although I am not sure what they are -

is equally inconsistent with the coexistence of any native title rights.

Now, may I take it that you accept that it is at least possible in theory for a statutory scheme to extinguish native title rights?

MR BARTLETT: A statutory scheme which prohibited any entry by any native title holder in all and every circumstances, yes, your Honour.

GAUDRON J: Very well. So what we are talking about then, are we - I am sorry to say this to you, Mr Bartlett, but I think you ought to think about it - again you seem to me to be pitching the level of debate out of the stratosphere. We are not talking about a scheme in this case which does necessarily prohibit - well, require the exclusion of native title holders in all circumstances, but you have got to address the statutory scheme, do you not, instead of just propounding your criteria in which, seemingly, the statutory scheme is just the background?

MR BARTLETT: Your Honour, we do address the statutory scheme as a separate element later in our submissions and there are specific written submissions that address that point, the essence of those submissions being that the Mining Act 1934 , like the Land Act, essentially provides a general scheme for the disposition of, in this case, minerals, and the general scheme authorising disposition does not, in itself, extinguish native title, although tenements granted pursuant to it may do so in some circumstances.

GLEESON CJ: Well, once again to reduce the expression "native title" to some concrete instances, if we look at the determination of Justice Lee, we find that what he is talking about and what you are talking about are rights:

(d) to control the access of others to the "determination area";

(e) the right to use and enjoy resources of the "determination area";

(f) the right to control the use and enjoyment of others of resources of the "determination area";

Now, how is that consistent with the statutory scheme?

MR BARTLETT: The determination of his Honour Justice Lee, subject to subsection 5 on page 645 of the ALR report, which indicates it is subject to that legislation and subject to those powers, so in that sense, native title, the rights of interest that can be exercised are diminished in that way by that provision.

GLEESON CJ: Let us get to a concrete example of it. How is it of practical significance that your clients have the right to control the access of others to an area that is a subject of a mining lease?

MR BARTLETT: It may not be significant, your Honour, but what may be significant is a right to forage, which has not been extinguished by an undeveloped mining lease. In those circumstances when the mining lease comes to an end, the right to forage is maintained.

GLEESON CJ: When you say right to forage, but when I look at the list of rights on the bottom page 639 and the top of page 640, they seem pitched at a higher level of generality; and if we go through those rights, one by one, it is not easy at the moment to understand in a practical sense how they are compatible with a mining lease. You can take them one by one. Which is the first one you would care to discuss?

MR BARTLETT: Well, if you take the first one, the right to possess, occupy, use and enjoy the "determination area." It may well be said that a part of that right is a right to forage. It may well be said that (a) is, in fact, the combination expression for all of the other rights that flow therefrom. Many of those rights may have been diminished and if partial extinguishment is permissible, may have been extinguished by the grant of the mining lease, but we would suggest that not all have been.

GLEESON CJ: If it is possible to imagine anything that your clients might wish to do in pursuit of their traditional rights that is not necessarily inconsistent with a mining lease and the statutory scheme, then it necessarily follows that there has been and can be no extinguishment.

MR BARTLETT: With respect to that particular right or element in the circumstances where the mining lease is not developed.

GLEESON CJ: But you deny the possibility of partial extinguishment.

MR BARTLETT: This is an alternative. This is an alternative with the - I am responding to your Honour on the assumption that you can have partial extinguishment.

GLEESON CJ: On the alternative assumption, what I put to you is correct?

MR BARTLETT: Yes, your Honour.

GLEESON CJ: On the assumption you are now addressing, what is the consequence? Is it partial extinguishment or is it absence of extinguishment but mere impairment?

MR BARTLETT: Upon an undeveloped mining lease we would submit that some elements would have been, leaving aside questions of the duration of the mining lease, extinguished. We acknowledge that with respect to suspension and permanence, which we are next coming to, if, in fact, it is regarded that mining leases are necessarily merely suspensive in nature, there would have been no extinguishment whatever. But, otherwise, we acknowledge the possibility of extinguishment.

GLEESON CJ: I am just having a little difficulty spotting the bone.

MR BARTLETT: We acknowledge, your Honour, given the generality of the determination, the great difficulty of measuring one grant or tenement against the nature of the native title interest, this is not a simple matter to resolve.

GLEESON CJ: Another way of putting some of the problems that have been put to you, Mr Bartlett is this: are we to assume that there are only two possible outcomes of this case, one of which is we agree with Justice Lee and Justice North and the other which is that we agree with Justice Beaumont and von Doussa, or is it the case in which there are many intermediate possibilities?

MR BARTLETT: I am afraid we submit there are intermediate possibilities which may entail remitting the matter to the lower court. But if I might proceed to the next section of our written submissions dealing with suspension and permanence, the essence of those submissions is that if it is accepted that a clear and plain intention to extinguish is required, then an intention to merely suspend native title would not be sufficient and, accordingly, if the interest has only the duration of one year, then such an interest cannot have the effect of extinguishing native title.

In that regard, we would refer on pages 33 and 34 of our written submissions, paragraphs 139 to 140, to a variety of dispositions which provide a range of particular interests. We would submit that one-year leases, of their nature, do not extinguish native title. They suspend native title. At the other extreme - - -

GAUDRON J: But, again, can we decide this without reference to the legislative provision pursuant to which the lease is granted?

MR BARTLETT: We would submit, with respect to one-year leases, that one could. I must acknowledge, your Honour, I am not sure why one should, which is why we provide the references in the materials to the findings with respect to the one-year leases, but the issue is: does a one-year lease terminate native title? We would suggest that if you contrast the source of native title and its history, that the passage of a one-year term as contemplated by the grant of a lease is not sufficient to permanently terminate native title. It does not manifest a clear and plain intention to extinguish for all time.

There are a variety of intermediate dispositions, but at the other end are the mining leases, it might be suggested, which are for a longer term, and, in particular, it must be acknowledged the mining lease granted to the Argyle Diamond Mine's Joint Venture - - -

GLEESON CJ: How could a lease, which is necessarily for a term, ever manifest an intention for all time?

MR BARTLETT: Your Honour, we would acknowledge that permanence here must be given some realistic understanding - - -

GLEESON CJ: You just used the expression in your submission "for all time". I would have thought that there is an inherent inconsistency between a lease and something that is for all time.

MR BARTLETT: Your Honour, we would acknowledge that and I am in error in using that phrasing because we have previously indicated that the construction of the substantial dwelling has a permanence which is may be only there for 80 years is clearly sufficient to extinguish native title. We do not draw back from that earlier submission, and I was in error to suggest that "for all time" was the requirement.

GLEESON CJ: "Permanent" sounds pretty like that too, unless it just means "indefinite".

MR BARTLETT: Perhaps "for a long time" is what is required in the circumstances, your Honour. What we are looking for is to give understanding to the fundamental criteria of a clear and plain intention to extinguish. Something granted for a 100-year period is considered to entail an intention to end native title for all time. It flows from - - -

GLEESON CJ: Three years is a period that in some contexts has a particular significance in relation to leases.

MR BARTLETT: But we would suggest it does not denote such a clear and plain intention to extinguish that it should dispossess the native title holders. At the other extreme is the lease granted to the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act, for example, which is a perpetually renewable lease. We do not submit that that is of a nature that it is suggested that native title is merely suspended. We do have other arguments with respect to mining tenements which are found at paragraphs 141 to 146 of our submissions which arise from the peculiar nature of mining tenements in so far as under the Mining Act of Western Australia, when they are granted over freehold land or Crown lease land, for example, in the form of a pastoral lease, at the expiration of the mining lease, the other interests revive.

GLEESON CJ: Mr Bartlett, the issue of suspension arose in Fejo. Is there any other case in which it has been said that native title or the rights and interests that constitute native title are susceptible of suspension, as distinct from extinguishment?

MR BARTLETT: Your Honour, Justice Toohey in Wik at page 108 seemed to indicate that suspension was possible and in the postscript at page 113 in Wik the matter was left open.

KIRBY J: Did it not come up in Fejo as well?

GLEESON CJ: It was decided in Fejo that the concept of suspension did not apply in the circumstances of that case.

MR BARTLETT: We would agree, your Honour. If in fact native title is extinguished by such a grant there is no possibility of revival. We are not suggesting the possibility of revival.

GLEESON CJ: That was a case in which suspension was considered in the context of a grant of an estate by the Crown and then the Crown re-acquiring the land but you are using it in a rather different context here and that is in a context where a long-term lease may extinguish native title but a medium or short-term lease merely suspends it.

MR BARTLETT: That is our submission, your Honour. We are suggesting that in the Fejo Case there was extinguishment. Once extinguishment occurs revival cannot occur, whereas if in fact the extinguishment has not occurred because of the nature of the original grant then suspension then becomes the legal effect. But, the submission I was moving to at paragraph 141 is somewhat different from an emphasis merely on duration. What the submission addresses is the circumstance where when the particular interest in question is granted it does not extinguish any other interest.

When a mining lease is granted over freehold or pastoral lease, those interests, the freehold and pastoral lease, are not extinguished. Specific provision is made in section 113 of the Mining Act that the interest of the owner, broadly defined, revives. It is our submission, in accord with the Mineralogy Case referred to at paragraph 144 that in those circumstances it cannot be said, in the language of his Honour Justice Carr:

There is no basis upon which to infer that the effect on any native title should be any more permanent.

We would submit that is a submission which is unique to mining tenements but would apply both to mining leases issued under the Mining Act and the mining leases issued to Argyle Diamond Joint Venture under their special Act.

If we might turn to our next head with respect to our submissions, namely, the area of regulation and control. What we are here dealing with is findings by the majority at various parts of the judgment which I will set out when we consider the particular elements involved which held that extinguishment occurred when there was a loss of exclusivity and also that when control and management was vested in Ministers of the Crown native title was also extinguished.

We, of course, take the view that regulation is to be distinguished from extinguishment. Regulation is a circumstance where native title can still be enjoyed, the regulation providing the framework or context in which native title is enjoyed. We would also submit that in circumstances of such a regulatory framework, merely because rights are conferred upon others does not deny and does not thereby extinguish native title. Indeed, if the right is a public right it does not deny the exclusivity of native title.

In this respect, we find ourselves in agreement with the Commonwealth with respect to the public right to fish. Perhaps if we might go to our submissions on the public right to fish, which are at paragraph 172 of our submissions - and the Commonwealth also examines this question at paragraphs 3.24 to 3.26 of the Commonwealth's submissions - we find ourselves in agreement that the public right to fish does not raise an issue of extinguishment. It raises an issue of the language of the determination.

GAUDRON J: Again, what part of the joint majority judgment is this directed to?

MR BARTLETT: This is directed to paragraph [660] of the majority, where the majority refer, in the latter part of the paragraph, to the

public right which has the effect of extinguishing the exclusivity of native title rights to fish in the inter-tidal waters - - -

GUMMOW J: Would you accept that?

GAUDRON J: What is wrong with that? It is talking about "extinguishing the exclusivity". I would have thought that we are beating the air, at this point.

MR BARTLETT: We would suggest, your Honour, that this is not a question of extinguishment. This is a question of the characterisation of the right in the context of common law public rights. We would suggest that the - - -

GAUDRON J: Is there any holding that there is no native title right to fish in the intertidal waters?

MR BARTLETT: Your Honour, no, there is no - - -

GAUDRON J: No. In fact, does the determination allow a native title right to fish in the intertidal waters?

MR BARTLETT: The determination, we would submit, would allow such a right.

GAUDRON J: But it is not an exclusive right, because there is a public right. Is that not right? It is only a question of language. If the common law could not - does it not come down to this: if there is a public right to fish, the common law cannot recognise an exclusive right to fish. All it can do is recognise a native title right to fish.

MR BARTLETT: We do not disagree, your Honour. We are merely submitting - - -

GAUDRON J: Why are we arguing about - why is there material given over to written submissions, apparently even on the part of the Commonwealth? What do you say is wrong with paragraph [660] or, more precisely, for the purposes of an appeal to this Court, what do you say is wrong with the determination made by the Full Federal Court that invites arguments about fishing rights in the intertidal waters?

CALLINAN J: You want to restrict access by others, do you not? Is that not what it is all about?

MR BARTLETT: No, your Honour, we are not submitting that there should be a restriction on access.

CALLINAN J: Or any restriction, or right to control fishing in the intertidal waters?

MR BARTLETT: We would submit that the native title right to fish gives rights to fish which can be relied upon to control access by those who would exceed the public right to fish. The public right to fish, for example, does not give a right to construct weirs. The native title holders could, in fact, act to prevent the construction of such weirs.

CALLINAN J: Your submission is, then, that you want to have some rights to control some sorts of access to, and use of, intertidal areas. Is that right?

MR BARTLETT: That is correct, your Honour. We are not submitting that, in fact, we seek to have an exclusive area. We are accepting the public right to fish, and it is a question of the language of the determination.

GAUDRON J: In what language do you say the determination should be worded?

MR BARTLETT: We would suggest that there is a degree of exclusivity left in the native title right.

GAUDRON J: Exclusivity is a little like pregnancy. It does not make a lot of sense to talk about degrees thereof. Either it is exclusive or it is not.

MR BARTLETT: With respect, your Honour, the material of Professor Gray cited in the High Court's decision in Yanner v Eaton goes to great lengths to point to the degrees of excludability and exclusivity that can arise with respect to property. In the circumstances of a public right, the degree of exclusivity has only been moderately diminished. We would suggest in those circumstances that - - -

GAUDRON J: What is the language that you would like to reflect these degrees of exclusivity?

MR BARTLETT: We would suggest that it should be exclusive against all the world except those who have other rights and that should be - - -

GAUDRON J: This would amend the determination in what way?

MR BARTLETT: Depending upon the conclusions with respect to extinguishment and the content of native title. If there was a specific designation of the native title right to fish, it would be a native title right to fish simpliciter. There would be no further need to refer, because we do not submit there is a need to in fact include references to public rights. They are taken as part of the common law and statutory framework to apply in any event.

GAUDRON J: Very well. What is it that is wrong with the determination of the Full Court and how do you submit it should now be amended?

GLEESON CJ: Is it that you are dissatisfied with paragraph (j) in the Third Schedule on page 326?

MR BARTLETT: Your Honours, with respect, we do not consider that such a reference is necessary in the determination.

GLEESON CJ: Is that the alteration that you want us to make? Do you want us to delete that?

MR BARTLETT: Yes, your Honour, it would be the alteration we wish to make.

GLEESON CJ: If we were to accept your argument in relation to fishing, you would like us to respond to that by deleting paragraph (j) of the Third Schedule?

MR BARTLETT: Yes, your Honour.

GLEESON CJ: That is what we wanted to know.

McHUGH J: That argument concerning the matter the Chief Justice has raised is raised under ground 21 of your notice of appeal. That raises a different argument, does it not? Your argument is that the public right to fish is not a proprietary right that should be recognised under section 225(c) of the Native Title Act. That is a different argument. What is your argument in respect of ground 22?

MR BARTLETT: With respect to extinguishment of the public right to fish?

McHUGH J: Yes.

MR BARTLETT: Our argument is, flowing from the language used by the majority of the Full Court in paragraph [660], that there is no extinguishment.

GAUDRON J: Of what?

MR BARTLETT: Of the exclusivity of native title right to fish, and in that we have common cause, we understand, with the Commonwealth.

GAUDRON J: So we take it now that your contention is there is an exclusive right to fish?

MR BARTLETT: Yes, your Honour, but exclusive with an understanding that does acknowledge the legislative framework and the common law framework of public rights.

GLEESON CJ: It is exclusive of everybody except the public.

MR BARTLETT: Yes, your Honour. If I might turn to - there are other elements here. I had hoped that the public right to fish would elucidate this question.

GAUDRON J: I think your hopes have been dashed.

MR BARTLETT: I understand that, your Honour. The other elements that I will not refer to but just comment on in passing: the imposition of legislative environmental controls raises similar issues dealing with the removal of exclusivity. We would suggest with respect to those elements it is not a question of extinguishment; it is a question of the language of the determination.

GAUDRON J: What is the language about which you complain?

MR BARTLETT: Well, it must be said, I am not sure the determination reflected the findings with respect to the extinguishment of exclusivity which the majority of the Full Court made at several points in its judgments.

GAUDRON J: I do not follow that. You want something written in or something written out?

MR BARTLETT: Your Honour, with your permission I would like to be able to respond to that in the morning, if that is possible, and move if I might to pastoral leases. Our treatment of pastoral leases commences with an examination of the applicability of Wik which I do not want to linger upon. We would note, however, that our understanding of the State submissions with respect to the application of Wik is that they are still maintaining the position that Wik is not applicable; at least the submissions they have left standing contain that heading. So we would refer the Court to our submissions at paragraph 197 through to paragraph 211 which indicate that, in our submission, the decision in Wik, upon an examination of the Land Act and the Land Regulations, is applicable in Western Australia.

We have referred to those particular provisions and also the imperial correspondence which addresses the origin of those provisions because, again, we find ourselves agreeing with the Commonwealth that in examining what we would point to as the error of the majority with respect to pastoral leases, it is necessary to look at the whole of the tenement, not just to focus, we would submit, as did the majority, at paragraphs [319], [327] and [328] to [329], and this is indicated at paragraph 213 of our submissions, where the majority held that the reservation for Aboriginal access manifested a clear and plain intention to extinguish native title outside the language of the reservation for Aboriginal access.

We would submit that what the Full Court majority did was look at the reservation in isolation without looking at the entire context in which the reservation was just one part. We would suggest that when looked at as a whole in the context of all of the circumstances which we have indicated in paragraph 210, dwelling on the historic documentation, the limitation of the grant for pastoral purposes, the nature of the conditions and the nature of the territory, that the reservation cannot be seen at all to manifest a clear and plain intention to extinguish native title, and we would submit, as we do at paragraph - - -

HAYNE J: Am I misunderstanding what the Full Court said at [329], when I understand it to be saying that:

the grant of a pastoral lease had the immediate effect of extinguishing the exclusivity -

but not more than extinguishing exclusivity?

MR BARTLETT: It is our understanding they went beyond that. They certainly did consider that upon the grant:

the exclusivity of the native title right to possess, occupy, use -

was extinguished, but they then went on to hold, as indicated at the latter part of paragraph [329], after the reservation:

the activities of the Aboriginal people -

and this is some three lines from the bottom of paragraph [329] -

could no longer come within the limitations as to purpose and geographical location expressed in the applicable reservation.

HAYNE J: That is in respect, is it, of leases issued after - - -

MR BARTLETT: , your Honour. But prior to that time there was a differently worded reservation, which the majority employed the same reasoning with respect to. So that if it fell outside the protection of the reservation, native title was entirely extinguished.

GUMMOW J: Now, there were no such reservations in the Wik leases, were there?

MR BARTLETT: No, there were not, your Honour. The Queensland legislation had originally envisaged them, but those leases issued without. It is our submission, as we indicate in authorities in paragraph 219 through to - - -

GLEESON CJ: Well, just before you go further, the reason they came to that conclusion is expressed in paragraph [328], is it not, and it is a reason related to the construction of the leases? It may be right or may be wrong.

MR BARTLETT: Yes, your Honour, it certainly would be part of their reasoning, given the language of the clause, that that was the intent. A similar conclusion was, of course, reached with respect to the Northern Territory reservation, where in paragraph [340], some halfway through paragraph [340], in referring to the reservation in the Northern Territory legislation:

they operate to define the scope of the Aboriginal rights which were preserved.

We would submit that the authorities, in particular, Yandama Pastoral Company v Mundi Mundi Pastoral Company, which is referred to at paragraph 219, indicate that such reservations in pastoral leases - that was not a reservation for Aboriginal access, it was a reservation for the crossing of stock - do not extinguish and take away rights. That, of course, is in accord with the language of the reservation, but if, in fact, one goes to paragraph [300] of the majority, you find the language of the reservation with which we are most concerned. In paragraph [300] the provision reads, from section 106(2) of the Land Act 1934 :

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

We would suggest that is not the language of extinguishment or expropriation, it is the language of preservation and protection and that is a conclusion which the Yandama Case, referred to in paragraph 219, would be in accord with.

e would also, however, emphasise that there are particular elements in the language which would suggest that the reservation has nothing whatever to do with native title holders. The language used in section 106(2) is, "The aboriginal natives". It also declares a right which would seem to prevail over that of the pastoralist. So, we would accordingly submit that the language of the reservation indicates that it refers to different people than native title holders and indeed is - - -

GUMMOW J: No one thought there were any native title holders at this time, that is part of the problem with all of this.

MR BARTLETT: But in the context of looking for a clear and plain - - -

GUMMOW J: People over there in the Crown Law Office in Perth who were drafting this Act they did not think there were any such things a native title holders. I am not saying it against you, but the question is, how do you accommodate all of that to what is now perceived?

MR BARTLETT: I would refer to, in particular, the Northern Territory reservations which refer in particular to all Aboriginal inhabitants of the Territory and so make clear that they are not speaking or referring to merely native title holders. That is less clear in the Western Australia reservation, it must be said, but it is very clear in the Northern Territory legislation. What I was going to go on to submit is that we would submit it is referring to different people but also it is of a different character to native title. The native title holder's rights must give way to the rights of the pastoralists, whereas this particular right prevails over that of the pastoralists, within its terms.

Accordingly, we would submit that the reservation does not manifest any clear and plain intention to extinguish and we would refer in support at paragraph 223 to fisheries legislation where this matter has been considered where there are special provisions for Aboriginal rights. The case of, in the Canadian Supreme Court, R v Sparrow but also in the Western Australian Supreme Court of Derschaw v Sutton, it has not been suggested that native title rights to fish are extinguished outside the reservation which is contained within that legislation.

HAYNE J: Is it the reservation that is said to extinguish or is it the grant of the lease?

MR BARTLETT: The Full Court indicated that it was the reservation which manifested a clear and plain intention to extinguish all native title. The Full Court did say that the grant of the lease extinguished the exclusivity of the rights of the native title holder but it was the reservation that manifested the clear and plain intention.

GLEESON CJ: I am looking at the first sentence in paragraph [306]. The Full Court seems to have rejected an argument that section 106, which is referred to in paragraph [300], extinguished native title.

MR BARTLETT: I believe that the rejection is primarily focused towards the creation of a new statutory right of Aboriginal access because, if one goes to paragraph [319], the majority would seem to conclude that if the activities of the Aboriginal people do not come within the language of the reservation, then the rights are extinguished.

GLEESON CJ: By the grant of the pastoral lease, surely?

HAYNE J: That being understood from [310].

GLEESON CJ: And from the concluding words of [319].

MR BARTLETT: I believe you are correct, your Honours, in the sense that the grant would bring about the extinguishment where it was beyond the ambit of the protective provisions of the reservation, the focus being upon, in the majority, of the language of the reservation, the majority of the Full Court having held that Wik was applicable, in their own language.

GAUDRON J: Did their reasoning to any extent depend upon subsequent legislation?

MR BARTLETT: The Land Act with respect to the grant of pastoral leases has not been amended before, I do not believe. There is now a new Land Administration Act but I do not believe it was passed before judgment was handed down.

GAUDRON J: I am just looking at paragraph [317]:

As a matter of construction we consider that pastoral leases granted in the terms prescribed prior to1933 plainly and clearly intended that in respect of enclosed and improved areas the rights . . . were abrogated.

Then it goes on to the 1934 Act.

MR BARTLETT: Your Honour, there was a change by the Land Act Amendment Act . There was a reservation protecting an Aboriginal right of access prior to that time. The language was changed in 1934. It is common ground between the parties that all of these pastoral leases always were subject to a reservation. There was what has been called "a window period", but it does not apply, it is common ground between the parties, to any of the pastoral leases involved in this particular case in Western Australia.

GAUDRON J: Does not the question of extinction or extinguishment, whether in whole or in part, necessitate consideration of the legislation of the pastoral leases in question?

MR BARTLETT: We would submit that it most certainly does, your Honour. That is why we have set it out in the written submissions at pages 44 through to 47 and, in particular, the Full Court at paragraph [296] to [300] also set out the pertinent parts of the legislation.

GLEESON CJ: And the leases.

MR BARTLETT: They do not provide a form of leases, but I am happy to take your Honours to the form of lease. The form of lease is not particularly enlightening in so far as it reflects the legislation. It does provide a nice map.

GLEESON CJ: It was a prescribed form, was it not?

MR BARTLETT: In both cases, both under the Land Act 1898 and 1933, it is a prescribed form of lease.

GLEESON CJ: Yes.

MR BARTLETT: In paragraph 203 of our revised submissions we do refer to the pastoral leases which were central to the Argyle Downs pastoral lease, and you certainly might find it of assistance to go to volume 5, 1152 to 1157, which is referred to there, which is a pastoral lease issued under the Land Act 1898 . On the next line the pastoral lease designated 396/455, which is in volume 5, 1174 to 1176, that is the pastoral lease issued under the Land Act 1933 . The form of lease did vary between the two Land Acts.

As I say, they, by and large, reflect the language of the legislation as described by the Full Court at paragraphs [296] to [300]. They also contain a nice map of the old Argyle Downs homestead and the Ord River flowing by it. If I might then attempt - - -

GAUDRON J: I am sorry to trouble you about this, but is not the reason really to be found in paragraph [312], that:

The pastoral leases envisaged and authorised activities which, depending on their intensity, had the potential to directly clash with the pursuit by Aboriginal people of their traditional activities on the land.

Is that not where the reasoning that leads to the extinguishment, except in respect of what is expressly reserved, begins?

MR BARTLETT: With respect, your Honour, we would submit that in the latter part of that paragraph it is indicated that it is understood that the rights can coexist and, accordingly, extinguishment does not necessarily arise. We would submit that the pastoral lease is a unique form of disposition involving such huge areas for relatively unintensive activity upon the land that, to some extent, a unique resolution of the rights of the pastoralist and native title holder are necessary. If the example I might give is of the obvious right of a pastoralist to build a homestead is considered, it might be suggested by some that that right to build a homestead anywhere on the lease necessarily extinguishes all native title.

But we would submit the right of the pastoralist is not to build a homestead throughout and over the entirety of the pastoral lease. It confers a right to build one or perhaps two homesteads, but not so as to occupy the entire area so as to extinguish native title throughout the entire area. It is a relatively unique form of disposition conferring a relatively limited interest and it is why we have recourse to the concept, as did the majority below and the trial judge, of operational inconsistency. The notion being that extinguishment does not arise upon the grant, it arises upon the inconsistency with respect to certain powers that were conferred in the case of, as we would submit, the unique form of disposition known as the pastoral lease.

GAUDRON J: I do not think that is what the majority was saying. When you get to paragraph [319], they are talking about Aboriginal rights:

are inconsistent with the rights of possession and use otherwise granted to pastoral leases.

Their Honours seem to be comparing rights, not actual use thereof.

GLEESON CJ: Is there a typographical error or a slip in that last sentence on paragraph [319]? Should that be "granted by pastoral leases" or should it be "granted to pastoral lessees"?

MR BARTLETT: I think it is acknowledged it should be "lessees" at that point. It is acknowledged it should be "lessees" at that point, rather than "leases".

GLEESON CJ: Thank you.

MR BARTLETT: But, your Honours, if I might refer to the latter part of paragraph [285], which is where the majority of the Full Court declare that Wik is applicable in Western Australia.

GLEESON CJ: And the last sentence in paragraph [316] seems to reflect what you referred to as operational inconsistency, does it not?

MR BARTLETT: Yes, it is certainly our understanding that that is the concept that the majority had in mind and they certainly refer to it in their statement of general principles with respect to extinguishment.

GLEESON CJ: Is that a convenient time, Mr Bartlett?

MR BARTLETT: Yes, it is, your Honour. Though, if I might be permitted, your Honour, we have not advanced perhaps as far as we had hoped, and it may be necessary, if we are to canvass orally the matters, that another half hour would be required in our allocation tomorrow. I appreciate this is a - - -

GLEESON CJ: You will have to be very persuasive to introduce, at this early stage of the proceedings, a blow-out in time allocations, Mr Bartlett. We will adjourn until 10.15.

AT 4.19 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 7 MARCH 2001

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