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State of WA v Ben Ward & Ors P59/2000 [2001] HCATrans 86 (8 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 THURSDAY, 8 MARCH 2001, AT 10.18 AM

(Continued from 7/3/01)

GLEESON CJ: Mr Sofronoff, just before you go ahead with your argument, there is something I want to say. The Court is of the view that in the light of the submissions that have been made so far, it appears that the following questions may arise and may be threshold questions which it will be necessary for us to decide in due course. The first of those questions is as follows: should the Full Court of the Federal Court have held that section 12M of the Titles Validation Act 1995 of Western Australia as amended by the Titles Validation Amendment Act 1995 of 1999 of Western Australia applied in relation to any part of the land in Western Australia which was the subject of the claim? If not, why that is so. I should point out that this question includes as a subsidiary question a question as to the nature of the appeal to the Full Court of the Federal Court.

The second question is as follows: which, if any, leases or other acts done or interests created in relation to land, which were held by the majority of the Full Court to have extinguished native title rights and interests in whole or in part, are (a) valid or validated acts for the purposes of Part 2B of the Titles Validation Act of Western Australia; (b) previous exclusive possession acts within the meaning of section 23B of the Native Title Act 1993 of the Commonwealth; and (c) previous non-exclusive possession acts within the meaning of section 23F of the Native Title Act 1993 of the Commonwealth.

Now, we will not only wish to hear oral submissions from all parties, including from Mr Barker in reply, on those questions, but we will require all parties and interveners to have made written submissions on those questions by 10:15 on Tuesday morning of next week. When I said we want to hear oral submissions from the parties, I mean from the parties and interveners concerned.

Yes, Mr Sofronoff?

MR SOFRONOFF: Your Honour, I think Mr Basten wants to hand up some document.

MR BASTEN: It is the material which your Honour Justice Gummow sought yesterday, the submissions in the Full Court. May I simply hand up copies and note that at paragraph 2.17 it is apparent that we are addressing only the Territory appeals specifically.

GLEESON CJ: Thank you. Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, could I also hand up part of the submissions before the Full Court on behalf of our clients which dealt with section 44H, which your Honours saw reflected in part of the transcript referred to yesterday.

GLEESON CJ: Thank you.

MR SOFRONOFF: Could I take your Honours to the reasons of the Full Court at paragraph [419].

HAYNE J: Sorry, what paragraph, Mr Sofronoff?

MR SOFRONOFF: Paragraph [419], your Honour.

HAYNE J: Thank you.

MR SOFRONOFF: If your Honours look at the last sentence of the preceding paragraph, [418], the Full Court there said:

we think that his Honour erred in not considering the Ord Project as a whole when considering the effect of its implementation upon the continued enjoyment of native title rights and interests.

In our submission, your Honours, it is that proposition which infected their Honours' consideration of the effect of the reserves and which caused them erroneously, we submit with respect, to conclude that notwithstanding the limited purpose which was carried into effect upon those lands that native title was wholly extinguished.

If your Honours look at paragraph [419], we would not disagree with the first seven sentences, that is all but the last sentence which state propositions which in our respectful submission are uncontroversial. Our criticism begins with the last sentence where their Honours, after remarking that the vesting of lands in the various parts of the area were required to exercise management and control to build dams and power stations and the other structures, went on to say:

In our opinion this is a use of the land for a public purpose in a manner which is inconsistent with the continued enjoyment of native title.

They used the expression "the land" without identifying the land, but one reads that sentence to mean all the land used in the Ord Irrigation Project, including the two parcels of land that I identified to your Honours yesterday upon which nothing has happened, except to erect a fence to keep cattle out. In our submission, that sentence would not be correct when applied to those two parcels of land and their Honours are able to come to that view only because of the perspective adopted by them in having regard to the Ord Project as a whole, as though that were a legal creature of some kind, rather than a slogan which is apt to describe a set of discrete legal actions.

CALLINAN J: Mr Sofronoff, are we talking about resumed land only when you are making this submission?

MR SOFRONOFF: Yes, I am only speaking about the two parcels of land that were resumed from pastoral leases and then reserved for the purposes I identified yesterday.

CALLINAN J: Yes. So, they were all subject to resumption.

MR SOFRONOFF: Yes.

GAUDRON J: For public works?

MR SOFRONOFF: For government requirements was the expression used.

GAUDRON J: Were they public works, because does the Native Title Act 1933 not say something about resumption for public works?

MR SOFRONOFF: It does, your Honour, but the Native Title Act does not apply to these resumptions because they occurred pre-1975. They, therefore, do not fall within the definition of past acts. The definition of past acts, as your Honours will recall, fixes upon an act that affects native title relevantly in a discriminatory way and is, therefore, invalid but is validated by the Native Title Act. These having occurred before 1975, in 1972, they are not past acts.

GAUDRON J: Well, a question does arise, does it not, whether in determining what constitutes extinguishment the Court should, nonetheless, be informed by what the Native Title Act says about it?

MR SOFRONOFF: Yes. Could I come back to the definition of public works, your Honour?

GAUDRON J: Yes.

HAYNE J: Am I right in understanding [419] and that part of [418] to which you took us as being an inquiry about use in fact or is it an inquiry about rights of use?

MR SOFRONOFF: As I read their Honours' reasons, it was an inquiry about use in fact.

HAYNE J: Do you say that is a relevant inquiry?

MR SOFRONOFF: Yes, your Honour, because, in our submission, relevantly, there are three ways in which native title can be affected; by force of statute itself, which does not apply here; by the terms of the grant or the creation of an interest in a third party; or by the Crown itself using its own land in a way that is inconsistent with the continued enjoyment of native title; and here their Honours directed their inquiry towards the manner in which the Crown determined to use the land for the purposes of the Ord Scheme.

Your Honours, if you go over the page, their Honours advert to the fact that not all of the land was used in that highly intensive way that they had earlier described. Just above line 10 on page 268 they refer to that proposition but then go on, having said that and having described accurately the use to which the land was placed, their Honours, at line 35, conclude that:

With the exception only of the Mirima (Hidden Valley) National Park we consider that the land acquired under s 109 of the Land Act was reasonably required for the purpose for which it was resumed, and has been applied and used for that purpose. Even though some of the land has not been subjected to active earthworks and other development, and has not yet been irrigated, that does not mean that the land is not committed to and in use as part of the project.

That is, in our submission, true enough but beside the point, when the correct question, in our submission, is whether, by the terms of the resumption and reservation or by the terms of the use, there is a necessary implication that native title has been extinguished.

Their Honours then refer to two early cases Wheat v Lacon and Newcastle City Council v Royal Newcastle Hospital to support the proposition that the land is used, although not intensively occupied. Those two cases, in our submission, are beside the point. Wheat v Lacon was a case which concerned the question whether an innkeeper, or a manager of an inn, was the occupier of a staircase for the purposes of an occupier's liability claim. And the Newcastle Case was a ratings case, to consider whether land was occupied by a hospital, for the purposes of the term "occupied" in a rating statute. We would submit that whether the land was occupied by the Crown or not is an irrelevant question for the purposes of the present inquiry.

If your Honours would go to paragraph [443]; at the foot of page 273, their Honours refer to the portions of the land resumed from Lissadell and Texas Downs, which are now part of the Reserve 31165, and observe that:

In these areas strict controls are necessary to manage the erosion and to limit the concentration of grazing activities on those parts where grazing is permitted. In our view, even though some of this land is now leased for grazing purposes under strict terms that permit the Water Corporation to control the use of the land, the whole of it has been appropriated to the use of the Ord Project - - -

And again, we respectfully criticise the injection of the concept of the Ord Project as something that can of itself conclude the question.

We would also observe that although their Honours refer to strict controls, one wonders how strict they are when, indeed, in due course, grazing activities were permitted on some parts of the land, not my clients' land but the other portion of the land that your Honour saw on the plan yesterday to the right-hand side.

In our submission, your Honours, it was incorrect to adopt a tag, the Ord Irrigation Project, and then to imbue it with qualities that are said to be inconsistent with the continued existence of native title. In our submission, the correct approach was to do what Justice Lee did, that is, to look at each parcel of land, parcel by parcel, and to ask how has it been treated, has it been resumed, has it been reserved, what was the purpose for which it was resumed or reserved and what has been done on it and consistently with that inquiry to ask whether, by necessary implication, native title has been extinguished.

If your Honours would go to Justice Lee's reasons at pages 610 to 611, you will see at the foot of 610 "Reserve 31165" is considered, and that is part of a lengthy treatment that his Honour gives to each distinct parcel of land and how it has or has not been affected by relevant acts and events. At the foot of 610 and over to 611 they describe what has happened to the two parcels and then conclude that there is nothing in the creation of the reserve or the nature of the use to which it had been put to demonstrate a Crown intention to extinguish native title by adverse dominion in respect of this land. We would submit, your Honours, that, on any test, on the narrowest test, on the most conservative test, that conclusion is correct.

CALLINAN J: Mr Sofronoff, could I ask you to assist me in relation to the Act.

MR SOFRONOFF: The Native Title Act 1933 ?

CALLINAN J: No, the Act under which the land was taken.

MR SOFRONOFF: The Land Act, your Honour?

CALLINAN J: The Western Australian Land Act, which is I think in volume 8. Yes, volume 8, Mr Sofronoff. I was looking at page 2087.

MR SOFRONOFF: I will just see if I can get a copy, your Honour.

CALLINAN J: Yes. Perhaps it might be convenient to start at 2084, Mr Sofronoff - fairly familiar sorts of provisions, I think, for the taking of land. Section 12 on page 2084 empowers the taking of land to set apart the land for a purpose, including Crown land. Then if you go to section 17, which sets out the procedure for taking at page 2087. If you go over to page 2088, paragraph (b), notice must be given of:

The place where persons interested may . . . inspect . . .

(ii) a statement of the nature of the work proposed to be carried out -

Do we have a copy of that document which states the nature of the work proposed to be carried out?

MR SOFRONOFF: No, your Honour, because the land that I am addressing was reserved under the Land Act, section 109, not under this statute.

CALLINAN J: Which statute should I be looking at then?

MR SOFRONOFF: Your Honour should be looking at the Land Act 1933 , which is in volume 2 at page 489.

CALLINAN J: What provisions should I look at there?

MR SOFRONOFF: Section 109, your Honour. As your Honours heard yesterday, the purpose was put obscurely as "government requirements". We do not have the gazette but we have the quote from the gazette in Mr Wilkin's report.

CALLINAN J: Do we have any details of the compensation that was paid or anything of that kind which might indicate what improvements were on the land?

MR SOFRONOFF: Your Honour, I do not know; I suspect not. We will find out if that is there.

CALLINAN J: It is very unspecific, "government purpose", is it not?

MR SOFRONOFF: That is perhaps how governments like it, your Honour.

HAYNE J: Is there any other provision of the Land Act 1933 that says anything about the consequence that follows from section 109 having been invoked?

MR SOFRONOFF: Only if your Honour looks over the page, I think I am correct in saying there is a provision for compensation. Yes, section 110(1), your Honour. Mr McIntyre reminds me that it is usually a condition of pastoral leases that one gets compensation for improvements, if any. Your Honour Justice Gaudron asked me about the Native Title Act definition of public works.

GAUDRON J: I was really asking whether that should inform the principles to be applied with respect to extinguishment or non-extinguishment where there is a resumption for public works and if it should apply to your land.

MR SOFRONOFF: Your Honour, I tread warily to suggest that it does, given that the resumption occurred in 1972 under a 1933 Act, long before the Native Title Act came into force. However, it is nevertheless, in our submission, instructive to see that the definition of "public works" in the Act, which your Honours will find in section 253 at page 323 of the copy, a public work is defined in terms that, in our submission, would not include the mere setting aside of land to prevent cattle coming onto it or, moreover, the erection of a cattle fence to keep cattle out of an area.

GAUDRON J: It would only be a past act that extinguished native title if it did include works of the kind defined or works - - -

MR SOFRONOFF: Yes, because it would only then affect native title and be caught by the RDA, but even so, in this case it is not caught because it was an act that preceded the passing of the Racial Discrimination Act.

GAUDRON J: Yes, I know that is right as a matter of strict law but, on your submission, we are to apply the common law to determine it. Does that not inform us what that common law should be in some respect?

MR SOFRONOFF: Yes, it does, your Honour, yes. In our submission, what several sections of the Native Title Act do, as is I think common ground, is to reflect the common law treatment of the extinguishment of native title. Your Honour, could I advance that a little bit further. If the Native Title Act had applied, then the act of resumption and the act of the erection of the fence as a fact would have been a category D past act, that is, one not falling within any of the other definitions, and as a consequence of the application of section 15, the non-extinguishment principle would have applied, with the result that native title would nevertheless not be extinguished, but rights could not be exercised and so on. Your Honours are familiar with the section.

HAYNE J: Section 109 deals with resumption, but this is land, is it not, which has not only been resumed, it has been reserved?

MR SOFRONOFF: Yes.

HAYNE J: And the focus in the trial judge was on the effect of reservation, was it not?

MR SOFRONOFF: Both, your Honour, because the State contended that each of the acts of resumption and reservation had the effect of extinguishing native title. Your Honours will see that in the Full Court at paragraph [414].

HAYNE J: And did reservation take place under the Land Act ? Basically, my question is, what were the sections that were engaged in relation to reservation?

MR SOFRONOFF: The best treatment of it, your Honour, is at Justice Lee's reasons at page 585.

HAYNE J: I am sorry, where on 585? That is about resumption.

MR SOFRONOFF: He speaks of resumption and towards the foot, at about point 7, the vesting of the land under:

s 3 of the Rights in Water and Irrigation Act 1914 (WA) as it stood at -

the time. That Act, section 3 of the Rights in Water Act 1914 in subsection (2) provided that:

All lands acquired for or dedicated to the purposes of this Act . . . shall vest in the Minister on behalf of His Majesty -

in its original form.

HAYNE J: There is a statutory chain there which I just for the moment do not understand, Mr Sofronoff.

MR SOFRONOFF: I am sorry, your Honour.

HAYNE J: Let me not interrupt you further but I tell you I just do not understand it and at some point I suspect I need to.

MR SOFRONOFF: Your Honour, the land was resumed under section 109 from pastoral leases.

HAYNE J: I understand that.

MR SOFRONOFF: Then vested in the Minister under section 3 of the Rights in Water Act.

HAYNE J: Yes.

CALLINAN J: Where do I find that latter Act, do you know, Mr Sofronoff?

MR SOFRONOFF: Yes. It is in volume 8 at 104.

GAUDRON J: It was, in fact, reserved, was it?

MR SOFRONOFF: It was vested, your Honour, under section 3.

GAUDRON J: I am sorry, vested.

MR SOFRONOFF: Vested. Then it became a part of - - -

GAUDRON J: With a document?

MR SOFRONOFF: With a document that is not in the books before you but is referred to by Mr Wilkin in his report. His report is in the book of materials, volume 4, at the foot of page 794 and over to 795.

CALLINAN J: Mr Sofronoff, the vesting under subsection 3(2) of the Rights in Water and Irrigation Act 1933 is:

until such lands and works are vested in a Board -

Is there evidence whether the lands and works came to be vested in a board?

MR SOFRONOFF: No, your Honour. The evidence is that the land came to be added to Reserve 31165. So the three treatments of the land were to resume it, to vest it and then to add it to Reserve 31165.

CALLINAN J: So it vested in the Minister on behalf of Her Majesty.

MR SOFRONOFF: Yes, and added to the reserve by a notice gazetted on 23 June 1972.

CALLINAN J: Is there a board though? Is there an Ord Irrigation Scheme or Ord Dam board?

MR SOFRONOFF: Your Honour, I do not know the answer to that question, but for present purposes the land - nobody has suggested that it vested in a board or that a board exercised any control over it.

HAYNE J: Mr Sofronoff, what strikes me is, first, it is described as a reserve; secondly, it is said to be a reserve for government requirements; third, it is a reserve which leads, according to this report at 794 in its last two lines, to the Minister thinking that he is in a position to enter "negotiations to lease the reserve to an adjacent landholder". All that suggests to me that somewhere there might be some statutory statement of powers that might bear on these issues. Now, as I say, I do not want to deflect you from the course of your argument but at some point it does seem to me that we have to get down and into legislation.

MR SOFRONOFF: Yes, I appreciate that, your Honour. To the extent that it has not been identified in the report, I will endeavour to do that in due course and give the Court a note.

HAYNE J: Yes, thank you.

MR SOFRONOFF: But the three Acts that we can identify are these - and it is important, your Honour, to understand that the land that we are speaking about, my clients are interested in two parcels that I showed your Honour's yesterday but there are, in fact, three, the third one being the large parcel on the right-hand side of the plan. So, to gather those three parcels in due course came to constitute Reserve 31165. But the two parcels that my clients were interested in were, first, parts of a pastoral lease, were then resumed from those two pastoral leases, vested in the Minister, and then, as Mr Wilkin says, added to Reserve 31165. What I cannot give to your Honour is the statute under which it was added to Reserve 31165.

HAYNE J: Because were it the Land Act section 33 - that is the Land Act, section 33 - then it may raise questions about the consequence of a vesting in a person named in the Order in Council in trust for the like or other public purposes and what all that may mean. Now, letting me loose on the statute book uninstructed is about the most dangerous thing that counsel can engage in.

MR SOFRONOFF: Your Honour, it would be necessary for us to unearth the gazette notice that Mr Wilkin referred to, and we will do that.

CALLINAN J: Mr Sofronoff, could I just add this to what Justice Hayne said. It does seem to me to be unlikely - it is possible but it is unlikely - that a major undertaking like this would not have had a board administering it.

MR SOFRONOFF: That is true, your Honour.

CALLINAN J: It is possible that there was not, but it seems unlikely. There is a sugar mill and all sorts of things up there now. It may be that if there is a board, then the subsection to which I drew your attention may be relevant here. It may not need any formal notation anywhere. It may just follow from the act that if there is a board, the lands works are vested in the board. It may or may not have some significance. Perhaps, I should be asking the Western Australia Solicitor that question rather than you, but it may be relevant.

MR SOFRONOFF: Your Honour, we will unearth those matters and provide something in writing.

CALLINAN J: Somebody would have to administer the irrigation rights. There would irrigation licences and water charges. There would be all sorts of things, I would have thought, that would have been under the control of a board.

MR SOFRONOFF: Relevantly, your Honour, those who had an interest in demonstrating some such impingement upon these lands did not do so and, consequently, when your Honour asked me those questions, they are not in the record.

CALLINAN J: Yes, I say it may be a question better directed to Western Australia than to you.

MR SOFRONOFF: Your Honours, those are our submissions concerning the Ord River Project in so far as it affects those two parcels of land. Could I move on to the Argyle lease extinguishment point. I pointed out to your Honours yesterday on the plan from Mr. Wilkin's report that the Argyle lease intrudes into the claim area in that left-hand corner. The Argyle mining lease was a lease issued pursuant to an agreement. The agreement was ratified by a statute which was the Diamond (Ashton Joint Venture) Agreement Act 1981 . It was later changed to be called the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 as amended, but in the statute the lease which was foreshadowed as going to be issued was a lease that was expressed to be under and subject to the Mining Act 1978 . So it is necessary to look at the Mining Act 1978 as well the Ashton Act to determine the nature of the mining lease that was granted and its possible effect.

Could I take your Honours to the Mining Act 1978 . Could I say two things by way of introduction before taking your Honours to the sections. The first is that the interest granted while termed a "lease" is, in our submission, so circumscribed by language that it is not a common law lease at all or even an analogue of it. The rights given under that instrument are defined expressly largely in section 85, but also in other parts, and the defined rights are further limited by the imposition of conditions and all of those defined rights are limited by having been granted for mining purposes.

The second matter, your Honours, is that when one comes to look at the Act, one can see very quickly that in the case of any pre-existing rights in land created by statute, conventional rights in land, those are not extinguished, rather, the interference caused by the grant of the mining lease and operations pursuant to it are made the subject of compensation. A pastoral lease over which mining leases are commonly granted is not annihilated but instead compensation is granted.

Now, the compensation is granted to owners and occupiers and those terms are defined and those definitions do not comfortably include native title holders. In our submission, they do not include native title holders because of the terms in which they are expressed. This Court in the Native Title Case, Western Australia v The Commonwealth, expressed a view that the term "occupier" when used in this Act was not apt to include a person holding the statutory section 7 native title rights under that West Australian Act and by parody of reasoning, in our submission, it would not include a native title holder of the traditional kind.

The consequence, of course, is that the Racial Discrimination Act 1978 has a role to play, in our submission. But, more widely, it would be an odd thing if all statutory interests granted prior to the grant of the mining lease are preserved - notwithstanding the grant of the mining lease - native title alone could be said to have been extinguished entirely, as the Full Court found. Could I take your Honours to the Act. There is a version of it in volume 5 of the book of legislation at tab 88. If your Honours would go to section 85.

GAUDRON J: Do you contend that the lease is invalid?

MR SOFRONOFF: No.

GAUDRON J: So you differ in that respect to Mr Barker?

MR SOFRONOFF: Your Honour, in this case the lease was issued in February 1983; the Racial Discrimination Act applies. If the mining lease affected native title, if the statutes pursuant to which the lease was granted are statutes which treat native title differently from other title, it would offend against section 10 of the Racial Discrimination Act. As a consequence, the mining lease would be a part C category act, and the non-extinguishment principle would apply.

GAUDRON J: You do not say that section 10 operates of its own force to bring about the same rights as would relate to the holders of other interests?

MR SOFRONOFF: No, your Honour.

GAUDRON J: Why not? You see, Mr Barker says the lease is invalid, if I understood his submissions.

MR SOFRONOFF: I am sorry, your Honour?

GAUDRON J: If I understood Mr Barker's submissions correctly, he said the mining lease was invalid because of section 10.

MR SOFRONOFF: Would have been invalid but for the Native Title Act, which validates it, but gives rights of compensation under the Native Title Act.

GAUDRON J: You do not say section 10 operated to confer precisely the same rights? I mean, it seems to me the Racial Discrimination Act operated before the Native Title Act came into play.

MR SOFRONOFF: It did, your Honour.

GAUDRON J: And section 10 seems to have a substantive effect where it says if people of a particular race - to paraphrase - do not enjoy a right or enjoy it to a more limited extent, notwithstanding anything in that law, they shall by force of this section enjoy that right to the same extent. That is what I was trying to raise with Mr Barker yesterday. Why do we say it was invalid but validated by the Native Title Act?

MR SOFRONOFF: Your Honour, I have to accept that section 10 in the last portion of it which you refer me to has that effect.

GAUDRON J: That being so, all the native title rights come back into existence like everybody else's, the conclusion would be.

MR SOFRONOFF: Your Honour, it does not matter for the purposes of the appeal because the question in the present appeal is whether the grant of the mining lease affected native title. The subsidiary question is whether, having affected native title in any respect, are there rights of compensation, whether by virtue of section 10 under the mining lease 1978 or by virtue of the provisions of the Native Title Act.

GAUDRON J: Well, what difference does it make?

MR SOFRONOFF: It does not make any difference to the question of extinguishment, which is the question the Full Court decided.

GAUDRON J: This clearly is a matter that is raised, is it not?

MR SOFRONOFF: Your Honour, it has not been focused upon.

GAUDRON J: Well, exactly, and it seems to me it has to be for the purposes of what is said about the Argyle lease.

MR SOFRONOFF: Your Honour, the reason it has not been focused upon is that in the judgment at first instance it was held that there was no extinguishment. In the judgment on appeal it was held that the mining lease entirely extinguished native title rights.

GAUDRON J: Without reference to section 10.

MR SOFRONOFF: Well, they referred to the Racial Discrimination Act, section 9, although section 10 was also argued before their Honours, and their Honours concluded that the statute, the ratifying Act and the Ashton Act was not discriminatory and as a consequence the RDA did not come into play. Now, the question of whether there are rights of compensation under the Native Title Act or under the Mining Act were not the subject of dispute. The question that was raised before the court below, and that is agitated here, is the preliminary question: what, if any effect, did the mining lease have upon the native title rights?

GAUDRON J: Well, if it had any effect, then section 10 comes into play.

MR SOFRONOFF: Yes. Well, your Honour, no. If - - -

GAUDRON J: You say there is an anterior question.

MR SOFRONOFF: The anterior question is: did it have any effect? If it had any effect then, as your Honour put to me, section 10 may have the consequence that the compensation right provisions under the Mining Act can be enjoyed by native title holders also.

GAUDRON J: And it would also have the effect that their rights would come back into existence, would it not? Their rights would no more be affected than would the rights of conventional titleholders.

MR SOFRONOFF: That is right, but the question that your Honour put to me concerning compensation is concerned with compensation under the Mining Act, which would have the result that moneys might be paid in respect of the disturbance of the soil and so on, but that does not answer the question which is in issue, whether native title rights have been extinguished, which is what their Honours found below. Now, there is no compensation for extinguishment, there is only compensation of a defined kind in the Act for - - -

GAUDRON J: Well, if it does not extinguish other people's rights - - -

MR SOFRONOFF: No, it does not, no.

GAUDRON J: Well, then, section 10 - - -

MR SOFRONOFF: In our submission, one does not have to look at section 10 of the RDA for that; one can see from the terms of the mining legislation itself that in so far as there are contemplated pre-existing interests of the traditionally recognised kind under statute, they are not affected, and we submit that equally - - -

GAUDRON J: Though you did say owners and occupiers do not include native title holders.

MR SOFRONOFF: Yes.

GAUDRON J: That is going to be a question which has to - - -

MR SOFRONOFF: Yes.

GAUDRON J: You make that submission by reference to the Commonwealth and Western Australia?

MR SOFRONOFF: Yes.

GAUDRON J: If it does not include native title holders, then prima facie the Act is discriminatory, is it not?

MR SOFRONOFF: Yes, and to the extent that it is invalid, to the extent that the grant of the lease is invalid as a consequence, it is validated by the Native Title Act 1904 with all the consequences that follow from the application of that Act.

GAUDRON J: Do we have to see whether the mining lease is invalid to any extent? I would have thought not.

MR SOFRONOFF: No, your Honours do not have to do that. Your Honours only have to consider whether by reason of the terms of the legislation and the lease itself, to which I want to take your Honours, its effect has been to extinguish native title in whole or in part. If it has done, in our submission, to that extent it would have been invalid pursuant to the Racial Discrimination Act because of inconsistency, save by the Native Title Act.

GAUDRON J: My thinking cuts in at a point anterior. The Racial Discrimination Act applied, it applied to give a somewhat different substantive effect to the Mining Act from what its terms indicated. The lease has to be read in a context in which the Mining Act is recast by section 10 and then you see what happens.

MR SOFRONOFF: Your Honour, that is correct, I accept that, with respect, that the effect of section 10 strengthens our position in that as a consequence of its application, to the extent that native title alone would have been extinguished, it would be saved by section 10 of the Racial Discrimination Act, with the consequence that there is no extinguishment.

Could I take your Honours to some of the other parts of the Mining Act and then to the lease itself, which is in the Ashton Act. I took your Honours to section 85. Section 85 is a central provision of the Act which gives a list of those things which a mining lease authorises the lessee to do. Of most significance for present purposes, subsection (2) gives the mining lessee a right:

(a) . . . to use, occupy, and enjoy the land . . . for mining purposes -

ownership of the minerals, and over the page, subsection (3):

The rights conferred are exclusive rights for mining purposes -

In our submission, your Honours, what those provisions do is to give exclusive rights with respect to the matters to which they relate, but not, by any means, exclusive possession of the land as a whole. We know that because pre-existing interests, pastoral leases and so on are not affected. If your Honours look at section 82(1)(b), that provision contains a very important limitation upon the rights, namely that the leases confer a right to use the land for mining purposes only. The parallel with the High Court's consideration in Wik is, in our submission, obvious.

Compensation is provided for in section 123 of the Act for a variety of interferences. It is expressly not given for permitting entry or for the value of any minerals and certain other matters, but it is then given to "the owner and occupier" in subsection (2) and the matters that can be compensated are defined in subsection (4). I take your Honours to that to demonstrate by way of reinforcement that this provision assumes that a pre-existing holder of a statutory title continues to hold the interest. Rather, the interference with the enjoyment of that interest is the subject of compensation.

The term "owner" and "occupier" is defined in section 8. "Owner" is defined as "the registered proprietor" or "the lessee or licensee from the Crown" or:

the person who for the time being, has the lawful control and management thereof whether on trust or otherwise;

"Occupier" is defined as a:

person in actual occupation of the land under any lawful title granted by or . . . the owner -

This Court in the Native Title Case at page 443 concluded that the term "occupier" was not apt to cover the holder of a section 7 statutory form of native title under the relevant Western Australian legislation. In our submission, the same applies to a traditional holder of native title.

McHUGH J: Does this mean that we would have to overrule Goldsworthy Mining Ltd v Federal Commissioner of Taxation where it was held that a dredging lease issued under the Land Act of Western Australia gave exclusive possession in the common law sense?

MR SOFRONOFF: No, your Honour. The mining lease here gives the mining lessee the right to enter for mining purposes - - -

McHUGH J: But so did the dredging lease in that particular case. Other people had rights of entry. It was a lease for specific purposes.

MR SOFRONOFF: Your Honour, in our submission, the terms of section 85 and section 82 of this Act make it plain that the rights of possession are expressly limited to a right to enter for a particular purpose and contemplate that there may be a continuing compensation provision, to contemplate that there may be a continuing use of the land by another person in areas that do not interfere with the exercise of rights by the miner. Nothing in this statute suggests that the right that is given to a miner to enter a pastoral lease, for example, has the effect that the pastoral lessee is not able and entitled to carry on the pastoral business in so far as it does not interfere with mining.

CALLINAN J: The Court held in Western Australian Mining Wardens that naval gunnery could co-exist with mining.

MR SOFRONOFF: In our submission, this Act contemplates the possibility of co-existence of pastoralists and miners and the holders of other rights and interests in the land.

CALLINAN J: If you can live with naval gunnery, you can probably live with anything, I would have thought.

MR SOFRONOFF: Quite.

McHUGH J: But you had to give notice about the use of it for naval gunnery purposes.

CALLINAN J: So the miners could drop tools and scatter.

GLEESON CJ: It was not under constant bombardment.

MR SOFRONOFF: Your Honours, could I take you to the - - -

GLEESON CJ: How are you going in point of time, Mr Sofronoff?

MR SOFRONOFF: Your Honour, I will need to move quickly, but I suppose I need 10 minutes. Could I take your Honours to the Ashton Act? I have had pamphlet copies handed up this morning. The Ashton Agreement or the Argyle Agreement, as it is called now, was an agreement entered into in 1981 and ratified by this Act in section 3. The agreement is a schedule to the Act. I will come to it in one relevant respect in a moment.

GLEESON CJ: Is this what is called the ratifying Act in the reasons for judgment?

MR SOFRONOFF: Yes, it is, your Honour. I will call it that, your Honour. Your Honours will see that in section 7 there are a number of subsections which expressly deem valid certain applications for mineral claims and, as his Honour Justice Lee found at first instance, those provisions were inserted because there had been competing mineral tenements, a claim by another person, and this Act was passed, in part, to ensure that any previous mining tenements applied for or in existence were extinguished.

Part of that purpose was carried out by section 7, which deemed all of the joint venture as applications to be good and to be deemed accepted, and then if we can skip paragraph 8 for the moment - I will come back to it - section 9 then goes on to provide for the extinguishment of pre-existing rights, title interest, benefit or entitlements, but your Honours will see that in section 9(1)(b), that is limited to those kinds of interests "under and for the purposes of the Mining Act". Similarly, subsections (2), (4) and (5). So the effect of those provisions was to render dominant, in terms of mining legislation, the tenements held by the Ashton joint venturers.

If I come back to section 8. This Act was passed in 1981. The lease that it foreshadowed being granted to the joint venturers was granted in February 1983. This Act, therefore, provided for an interim regime in section 8 that gave exclusive possession of the land for the purposes of the Mining Act 1904 and the Mining Act 1978 immediately to the joint venture parties. It does no more, in our submission, than to give immediate right of possession pending the grant of the lease but that possession confers no greater rights than would have been conferred by a lease granted under the Mining Act 1904 or 1978.

If your Honours go then to section 14, section 14 and following envisage the creation of designated areas. These are central areas where actual extraction and work upon diamonds is conducted and Part IV which creates that concept allows for extreme security to be applied there and to control access to persons entering. Nothing of that kind has occurred on the relevant land in this case. Indeed, on the relevant land in this case nothing has occurred, as his Honour found. The agreement is at the back of the Act. Relevantly, clause 15(1) foreshadows the grant of a lease. Clause 15(1) provides, relevantly:

On application made by the Joint Venturers -

Then there is a time limit:

for a mining lease of the blue area -

When it says "blue area", it is referring to a definition of the land that is to be the subject of the lease in due course -

and in respect of which CRAE then holds mineral claims, the State shall . . . cause to granted to the Joint Venturers at the rental . . . a mining lease of such land -

then there are words in parentheses:

such mining lease to be granted under and, except as otherwise provided in this Agreement, subject to the Mining Act 1978 but in the form of the Schedule hereto -

So, the relevant Acts that one would have to look at are both the ratifying Act and the Mining Act 1978 in order to determine whether the grant of the lease extinguished native title. In subclause 15(4) there is a provision which Justice Lee considered significant - indeed, everybody urged it for their purposes - under which the joint venturers are required to:

permit the State and third parties with the consent of the State . . . to have access to and to pass over the mining lease.

I wish to take your Honours to the mining lease. Although the form is in the back of the Act, I want to take your Honours to the actual lease which is in volume 13 of the book of documents at page 3274. If your Honours actually pause at page 3271, which is a plan in a plastic binder - you need not take the plan out - your Honours will see the lip of blue area that I described yesterday intruding into the claim area and the rest of the blue area extending well down the plan.

The lease begins at page 3274 and is, in our submission, consistently with the construction of the Act that we urge, expressed in limited terms. At about point 6 the words appear "hereby leases to the Lessee the land", which is described, "for all minerals". Your Honours will recall the dicta of Justice Windeyer in Wade that was cited by Justice Toohey in Wik that a mining lease is nothing more than a sale of the minerals in its effect. If your Honours go to page 3280 you will see the first of a number of relevant conditions. Condition 10 on page 3280 is a condition that the lessees comply:

with the provisions of the Aboriginal Heritage Act -

The existence of that condition, in our submission, assumes that Aboriginals interested in those sites might be upon the land and might enter.

At page 3285 are two further conditions that are relevant. The first is condition 13, which provides that "No mining on Government Requirements Reserve 31165", and certain other reserves, can occur "without the prior written consent of the Minister for Mines". As Justice Lee found, no such consent had been given. Of course, the evident purpose of condition 13 was probably to address the irrigation requirements rather than any other requirements, but nevertheless it indicates, in our submission, that the lease is not to be construed as though it, in order to have effect, necessarily implied an extinguishment of native title.

KIRBY J: In relation to condition 10, does the provision of the Aboriginal Heritage Act 1978 contemplate entry of Aboriginals onto the land the subject of Aboriginal sites? At least one possibility, without peering into that Act, would be that they are, as it were, to be preserved and not touched, but that the Act says nothing about access to them.

MR SOFRONOFF: I will need to look at the Act, your Honour. Mr McIntyre informs me that the Act provides for an entitlement to use those sites in accordance with traditional practices, but I will have to look at the Act to give your Honour a confident answer. Condition 15, your Honours, is self-evident. Justice Lee found that no mining had been undertaken in the claim area - that is at page 578 of his Honour's reasons - and consequently nothing had been done, as a matter of fact, which might give rise to the kind of operational inconsistency referred to in the Wik Case.

Could I take your Honours to the decision of the Full Court, at paragraph [554]. Your Honours will see at [554] that their Honours again, as in the case of the Ord Project, were moved by the evident importance of the Argyle Diamond Project and its intensity in some areas to conclude that the mining lease granted pursuant to it extinguished native title. If your Honours go to the fifth line, their Honours say:

It seems to us 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.

In our submission, your Honours, that is, with respect, incorrect, just as in the case of pastoralists over whose property such a lease might be granted. In our submission, the Ashton Act does not change this in any relevant respect, so in the case of native title holders, there is no inevitable conclusion of irreconcilable inconsistency. Their Honours then say, towards the foot:

As in the case of the grant of a fee simple, "[i]t simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title" -

In our submission, your Honours, that just - - -

GUMMOW J: What is the "it"?

MR SOFRONOFF: The grant. The grant; the mining lease. The mining lease:

simply does permit of the enjoyment by anyone else of any right or interest in respect to the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title."

If your Honours go over the page at 556 their Honours give some consideration - this is I think the only consideration given - to the effect of the Racial Discrimination Act upon the Mining Act, but their Honours are not considering the Mining Act; they limit their analysis to the ratifying Act. Their Honours concluded that the ratifying Act in extinguishing previous mining tenements was nondiscriminatory, which, indeed, it was. In our submission, the relevant question was not the effect of the ratifying Act upon pre-existing mining tenements; the ratifying Act permitted the grant of a lease that otherwise would not conform with the Mining Act. The lease was, nevertheless, subject to the Act of 1978 except where inconsistent with the later Act, and it is necessary to consider whether the grant of a mining lease in its effect was relevantly discriminatory.

If it had the effect of destroying native title, in our submission, it would be discriminatory because it does not have that effect, it does not annihilate pre-existing pastoral leases or any other interest in land.

GAUDRON J: You have said that many times. Is there a statutory provision - do not go to it - that emphasises that?

MR SOFRONOFF: No, your Honour, but your Honour will see in, I think it is, section 113 of the Mining Act 1978 that possession is restored to those entitled to it. Now, that must contemplate the continued existence of the relevant interest.

If your Honours go to paragraph [558] their Honours advert to the limitation sought to emphasise, that the lease was a lease of the land for all minerals, and then go on to say:

But, in our view, it does not follow from the circumstance that a lessee is granted exclusive possession of the land for a nominated purposes, that others may possess the leased premises for other purposes.

In our submission, that is not correct, although portions of the land used for mineral purposes, used for the extraction of minerals, may have the result that nobody can enter those portions of the land. There is nothing in the mining lease that would justify a conclusion that nobody may enter the mining lease pursuant to pre-existing statutory interests.

If your Honours go over the page, you will see once again at line 5 on page 298 the strength of the influence of the Ord Project upon their Honours' reasoning:

As has been said, from the point of view of extinguishment, this project is similar in principle to the Ord Project. Each involved the construction of major infrastructure and the carrying on upon the land of a range of intensive activities. None of this could be consistently with the exercise of the native title rights claimed.

Their Honours to not, in fact, go on to consider the nature of the native title rights and to determine in what respect the rights under the mining lease completely annihilate them.

If your Honours go over the page, page 299, in paragraph [567] their Honours appear to have gone so far as to conclude the effect of a mining lease is, in substance, a lease of the land. Your Honours will see a reference to dicta Sir Owen Dixon in Henry.

GUMMOW J: That is a stamp duty case.

MR SOFRONOFF: It is, your Honour, and what is more that sentence that their Honours quote is, with all due respect, completely out of context. What his Honour was saying in that passage was that it is not a lease. It is a lease for the purposes of the peculiar definition of the Stamp Act and so his Honours says, "A lease it may be under the provision of a Stamp Duty Act.

GUMMOW J: That is right. New South Wales Stamp Duties Act.

MR SOFRONOFF: New South Wales Act, yes. And to the same effect, your Honours, if I can give you the references, Justice Kitto at 329, Justice Taylor at 333 and 335 and Justice Owen at 338, and it is clear, in our submission, that their Honours there were not saying anything that would support the proposition that a mineral lease is a lease.

Then at paragraph [571] their Honours finally deal with the proposition that the condition in the lease, which requires consent, had any effect.

Could I take your Honours speedily to Justice Lee's reasons at page 578. At the foot of 578 in the last sentence his Honour, in our respectful submission, correctly concluded that:

It was not the intention of the legislature to extinguish in general all pre-existing interests in that land.

His Honour then went on to consider the provisions, some of which I took your Honours to - I think all of which I took your Honours to - and then, over the page at 580, after referring to the conditions that I took your Honour to a little earlier, just above line 30, said that:

For the foregoing reasons relating to the character of a mining lease the conclusion must follow that in respect of the mining leases granted.....no clear and plain intention by the Crown to extinguish native title is manifested -

Your Honours, if Justice Lee was wrong and if the Full Court was right, then, in our submission, the extinguishment of native title would have had one of two consequences: either by virtue of section 10 of the Racial Discrimination Act, there would have been no extinguishment, no more than the extinguishment of a pastoral lease; or if the grant of the lease was invalid by reason of the operation of the Racial Discrimination Act, the provisions of the Native Title Act would have been triggered. Relevantly, the grant of the mining lease would have been a category C past Act and section 15(1)(d) would have rendered the non-extinguishment principle applicable. That principle would have preserved native title subject to yielding to rights of the mining lessee from time to time.

Your Honours, subject to giving the Court a note abstracting the statutes and the instruments relating to the two parcels of land, the subject of the Ord Scheme - - -

GUMMOW J: And the Aboriginal Heritage too.

MR SOFRONOFF: And the Aboriginal Heritage Act, those are our submissions, your Honour.

GLEESON CJ: Thank you. I think Mr Sher is next. Yes, Mr Sher.

MR SHER: May it please the Court. The concern of the Goldfields Land Council, whose area of responsibility is vast, is an area in which there has been many pastoral and mining leases granted in the past, is with the statements of general principle which the majority made in relation to the legislative scheme in relation to both pastoral leases and mining leases in Western Australia, which have already been applied adversely to claimants by the Native Title Tribunal. Those statements of principle, your Honours, concern the mining leases in paragraph [581] of the judgment, which was a summary of the reasoning of the majority and is encapsulated effectively in one sentence at the end of that paragraph. If I can take your Honours to that. Their Honours said this:

In our view, the statutory scheme of the Mining Act and regulations establishes a regime which has an intended operation which, in the absence of explicit provision to the contrary (and none is relevantly to be found here) is inconsistent with the use or occupation of the lands leased by any other person.

They finally express their conclusion that "native title rights in the areas of land leased" had been extinguished in paragraph [584]. So it will be seen, your Honours, that the statement related to the legislative scheme. After having dealt with the legislative scheme, their Honours went on to deal with the particular matters before them, some of which have been recently addressed by my learned friend, Mr Sofronoff.

In relation to pastoral leases, the effect of the review that they made of the legislative history in relation to pastoral leases in Western Australia, which commenced at paragraph [293] going back to an Order in Council made in 1850 and up to and including the 1933 and 1934 Acts, was summarised by their Honours in paragraph [329] of their judgment in which they, in effect, found that the grant of pastoral leases based on this legislative history:

had the immediate effect of extinguishing the exclusivity of the native title right to possess, occupy, use and enjoy the subject land.

They went on in the middle of that paragraph to say that the reservations in favour of Aboriginal people did not prevent the extinguishment of the right of the traditional owners to make decisions in relation to the use and enjoyment of the land, and they finally said, in relation to the areas to which the reservation applied where there had been enclosure and improvement, that native title was there "wholly extinguished".

In relation to the Northern Territory, which I mention because of the possibility that the Court may find that it is only the complementary legislation in the Northern Territory which needed to be considered, the finding in relation to the Northern Territory pastoral lease history is in paragraph [340]. It is slightly different because the reservation there was more expansive but it did involve, in that paragraph, a finding of some degree of extinguishment notwithstanding the reservations. What their Honours did was, in effect, to apply the concept of the bundle of rights metaphor to native title and find that there had been, in respect of some of the rights, extinguishment, meaning, of course, permanent extinguishment.

Now, in coming to those conclusions, the court effectively did not apply any provision of the Native Title Act, which we say is a very fundamental error. The reasons for not applying the Native Title Act were articulated in two places by the court. Paragraph [77] of the judgment contains a very short statement as to why they were not going to apply the Native Title Act in relation to the question of extinguishment. In the middle of that paragraph your Honours will observe that the majority judgment says:

The principles concerning extinguishment that are central to the present case do not turn on provisions in the NTA, as the Crown grants, reservations and uses which the appellants say caused extinguishment occurred (with very few exceptions) before 1976.

Now, that is factually incorrect and the reference to the way in which they approached the mining legislation which was based on the 1978 Act demonstrates how incorrect it is. In any event, in our submission, the Native Title Act applies to past events, indeed, that is one of its major areas of operation, and for no other reason than the existence of section 11 of the Native Title Act, it was essential that the court have regard to the provisions of that Act. That is the section which provides that:

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

In any event, in our submission, on its face, section 44H, which was in force when the matter was being considered by Justice Lee, so no question of there being - of an analysis of the nature of the hearing of the appeal is required, and section 44H, on its face, in our submissions and in the light of the transitional provisions, was clearly applicable.

KIRBY J: Unless under section 11(1) would presumably speak in futuro from the bringing into force of the Act.

MR SHER: It would, but in futuro in relation to claims being considered and those claims would require reference back to past events, so that it would operate on claims after the Act came into force, but in respect of events before the Act came into force and, indeed, it is the past acts provisions of the Act which are at the heart of the debate here.

The transitional provision in relation to section 44H, to which reference has already been made, makes clear that the section applies to grants at any time, which means that it was appropriate to have regard to section 44H in relation to grants of pastoral and mining leases, even though they may have been ancient. That section, in our submission, requires no complementary legislation, as section 23G might or does.

GUMMOW J: Yes, but I think it is put against you, Mr Sher, that you are right about (a), but then (b) and (c), particularly (b) and (a), are looking to the future. In other words, they are saying it does not matter how old the grant is, but if something is now done. There does seem to be a construction problem, that is all I am saying.

MR SHER: Yes. Well, our submission is that there is no temporal limitation involved in the proper reading of this section, that there is no reason to regard an activity done in the past as not being covered by the section and it does not purport to limit itself to past events, past activities. It uses the word "activity", which is a somewhat strange word, but as it relates to grants which may have taken place at any time, our submission is that activity at any time would also be covered by section 44H.

GAUDRON J: But it does presuppose that native title has not been extinguished, does it not? It is paragraph (c).

MR SHER: No, with respect, that is what the section is doing, it is making clear that activity which might otherwise be regarded as so inconsistent with native title as to extinguish it, applying common law principles does not, in fact, have that effect.

GAUDRON J: Yes, but is there not an anterior question whether the grant extinguished native title?

MR SHER: I appreciate, your Honours, and we do not submit that this section applies to grants. This is a section directed to operational inconsistency and in so far as operational inconsistency leads to extinguishment, in our submission, 44H provides that there will be no extinguishment.

So our submission is that section 44H applies to past acts, to all types of leases, whether they be mining or pastoral, requires no complementary legislation and, in effect, provides for a suspension of native title rights because if, in fact, it is dealing with a lease, the activity pursuant to the lease being inconsistent with native title rights but it does not extinguish the native title rights, the irresistible conclusion to which one is drawn, in our submission, is that when the lease expires, those non-extinguished native title rights revive. So, without saying it in express words, as they do in section 23G, in our submission, it really is a section that is designed to ensure that operational inconsistency does not extinguish native title.

Now, in relation to mining leases, your Honours, it is our submission that the appropriate provision that needs to be - - -

KIRBY J: Is there anything in the explanatory memorandum or in the Minister's speech that gave any clue as to what was intended?

MR SHER: Section 44H. Yes, I think there are some observations, your Honour.

KIRBY J: But do we have those in the materials?

MR SHER: I do not think they are presently in the Court material but we can make that available to the Court. They can be distributed, your Honour, perhaps when I conclude my submissions.

KIRBY J: Yes.

MR SHER: Now, if I may deal firstly with mining leases under the Act which are defined in section 242(2) and which go beyond what one might normally expect to be covered by the term "mining lease". The Act provides in section 228 that a mining lease, if it is a past act, is a category C. Section 228 applies to a category C past event or past act and the question that would then arise is whether the grant of a mining lease was in fact a past act. If I can come back to that in a moment. The effect of the application of section 238 is clearly to provide for the suspension and the non-extinguishment of native title rights. Your Honours will observe in subsection (2) that the section provides:

(2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

Where we have partial inconsistency, which is what the majority found, in subsection (4) it is provided:

If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

Subsection (6) is particularly important because, in our submission, it provides for a concept of suspension rather than extinguishment. It reads:

If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect.

So, on the expiration of a lease, for whatever term, native title rights would be revived. An example of that is given in subsection (8) which is a specific reference to:

the grant of a mining lease that confers exclusive possession over an area of land -

Perhaps I should read it in full:

An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re-grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.

So, we have clearly here a legislative scheme for the suspension rather than the extinguishment of native title rights in the case of a lease.

Now, the question, your Honours, is this, is the grant of a mining lease a past act, and that requires the satisfaction of two criteria. Firstly, it has to be prior to 1 January 1994 and, secondly, it has to be invalid to any extent other than because of the Native Title Act and because of native title. So, between 1975 and 1994, at least, and adopting the arguments of my learned friend, Mr Sofronoff, this morning there would certainly be an argument that the Racial Discrimination Act, to some extent, at least, if not wholly, rendered the grant of mining leases invalid from the time the Racial Discrimination Act came into effect.

GAUDRON J: Are we going to hear that argument from anyone?

MR SHER: Not from me. I have been allocated very short time, your Honours, and I will be relying on the written submissions of other parties.

GAUDRON J: It occurs to me that the question whether there is invalidity may have some significance to the ultimate disposition of this case.

MR SHER: We do not quarrel with that, your Honour, but I had not anticipated - - -

GAUDRON J: Yes. I mean, you cannot just determine invalidity or just conflict with the Racial Discrimination Act by reference to thin air.

MR SHER: Your Honours, when I say "not from me" I meant not orally. We have addressed this issue in our written submission in paragraphs 145 and following.

McHUGH J: Yes, but if there is one thing I hate in life, it is having to address legal problems without the issue being up front, and I am far from persuaded that I know what the issues are in this case, having regard to the lack of argument about so many of the statutory provisions which, at least prima facie, seem to have some impact on the case.

MR SHER: As counsel for interveners, I must confess we did not anticipate that we would be given the time to argue this matter orally.

McHUGH J: No, well, you have 18 minutes, I think, Mr Sher.

MR SHER: Yes, your Honour. I have used a fair few of them up already.

KIRBY J: Nineteen of them.

McHUGH J: But it is a difficulty, from the Court's point of view, and you float these matters and then they are left there.

MR SHER: I suspect somebody might address this question later, if not earlier, in their reply.

GAUDRON J: I suppose one answer might be if it is contended that the Native Title Act has application and the question whether it has or has not has not been addressed, then the matter just should go back to the Full Federal Court for it to determine that issue and then determine whatever falls out.

MR SHER: As I said, your Honours, we had not anticipated addressing oral argument on this question. We have addressed written argument in our written submissions. Can I turn then, your Honours, to pastoral leases. The application of section 23G and its State equivalent is a matter which provoked the questions which your Honour the Chief Justice put to us all this morning. If I can anticipate what we will be saying, our submission is that it was a re-hearing before the Full Court and that they had to apply the law as it stood at that date, which would have included the West Australian complementary legislation. There is no argument but that the Northern Territory complementary legislation was in force and under discussion before Justice Lee.

The provisions of section 23G in, whether it be Northern Territory or West Australian legislation, in our submission, clearly countenances the concept of suspension rather than extinguishment. Can I make a short point about the non-applicability of section 23G(b)(i). That section, properly construed, in our submission, involves the total extinguishment of native title rights and interests. That is to say, that it only applies where the previous act has totally extinguished native title rights and interests, and in view of the finding in this case of the majority, which was not a finding of total extinguishment at all, section 23(1)(b)(i) can have no application, in which event (ii) applies, which clearly provides for suspension and not extinguishment of native title.

HAYNE J: What work do you give to the words "to the extent that", which introduce (b)?

MR SHER: They relate to the concept of the grant because an act can be any number of things, a grant being one of them, and so the words "to the extent that the act involves the grant of rights", it is our submission that it is directed to the fact that the act under consideration as the alleged extinguishing act is a grant rather than something else, but it does not, in our submission, attach to the words "the native title rights and interests are extinguished" in subparagraph (i). The application of - - -

GAUDRON J: So you say for the purposes of section 23G(1)(b)(i), we are looking to see if by operation of the common law there was a total extinguishment?

MR SHER: Yes, that is right, your Honour.

GAUDRON J: By reason of some inconsistency. So it is allowing the possibility that a degree of inconsistency might at common law affect total extinguishment.

MR SHER: Well, I would approach it slightly differently, with respect. The words "apart from this Act" focus attention on, for example, the common law but would also focus attention from 1975 onwards on the Racial Discrimination Act.

GAUDRON J: Yes.

MR SHER: This is a section in an Act which has as its object the protection of native title and which has made it far from the fragile creature that it might have been thought to be prior to the enactment of this Act. This is a strong title, in our submission, and the whole policy of this Act is to protect it and to provide for non-extinguishment and for the suspension of native title rights rather than their extinguishment, because extinguishment means permanency. Now, if there is any ambiguity in this section at all, in section 23G(1)(b)(i), then it should be construed, in our submission, in favour of the proposition which I have advanced, namely, that it is only when all native title rights and interests are extinguished by reference to common law principles or any other legal principle that that subsection applies, otherwise there is clearly a legislative intent that there be suspension and not extinguishment of native title.

Can I, in view of the time, your Honours, just make a few further comments. We - - -

GAUDRON J: But I think, Mr Sher - I am sorry, before you move on - paragraph (c) tells against you. I just think I should direct your attention to it.

MR SHER: The Act there is a reference to the grant.

GAUDRON J: That:

any extinguishment under this subsection - - -

MR SHER: Yes.

GAUDRON J: And as I read it, that could only be under (b)(i).

MR SHER: Yes, but it does not alter the meaning, with respect, of (b)(i).

GAUDRON J: Well, that would mean that there could be no extinguishment.

MR SHER: No. If in fact at common law many years ago there was a total extinguishment because of absolute inconsistency between a grant and the exercise of native title rights in all respects, then (b)(i) would apply and it would be taken to have occurred when the grant was made.

GAUDRON J: Yes, but then "apart from this Act", what does it - well, perhaps it is all too circular.

MR SHER: That is merely a reference, with respect, your Honour, to legal principles other than the Native Title Act, and, for example, the common law.

HAYNE J: But what is then worked is a statutory extinguishment of what, on one view, is a set of now statutory rights.

MR SHER: Yes, and that is consistent with the intention that native title rights are determined by the application of this Act because this Act incorporates the common law past by sections such as 23G(1)(b)(i). Without belabouring the point, we are dealing here with an Act which in sections 3, 4, 10 and 11 make it clear what the purpose of this legislation is, which is to protect and enforce native title and to provide for non-extinguishment other than in cases, as it were, of absolute certainty.

Can I turn then, your Honours, to make two comments about the common law, because our submission is that the majority misapplied the common law. We deal with this in our written submissions and others have argued at some length in their written submissions as to why the application of the common law was erroneous. We wish to emphasise two things. Firstly, in our submission, which we deal with in writing in paragraphs 41 to 64, there is a recognition by the common law of the concept of suspension rather than extinguishment of native title rights. We refer your Honours there to a number of cases in which that concept is referred to and approved.

To that list of authorities we should add the recent decision of the Full Federal Court in Anderson v Wilson [2000] FCA 394; 97 FCR 453, which we refer to for another purpose, where the Chief Justice and Justice Sackville were asked to answer a question as to whether certain events had caused the extinguishment or suspension of native title rights. They declined to answer the question because they did not have the facts. It gives one a sense of déjà vu. But what they did not say was that the question of suspension was irrelevant. They really do not discuss it. It is what they did in not saying that suspension was not an issue that is important, in our submission.

The other comment which I wish to make, your Honours, is to say that we have submitted that the approach of seeking an intention in determining the question of inconsistency and thus the extinguishment of native title is not the appropriate approach and that, rather than look for intention which is a fiction, what should be sought is the nature of the rights granted by the alleged inconsistent grant rather than a manifestation of legislative intent. In particular, we make that point in paragraph 37 of our written submissions.

Finally, your Honours, could I merely refer to a paragraph in Anderson v Wilson which touches on the interesting question of the effect of fencing, which your Honour the Chief Justice raised on the first day. There is a discussion there in paragraph 129 of that issue which is of interest. If the Court pleases.

GLEESON CJ: Thank you, Mr Sher. Mr McIntyre.

MR McINTYRE: Your Honours, what we sought to do in our written submissions was to try and assist the Court in relation to the issue of partial extinguishment. Given that there has been quite a deal of discussion about that, we propose to take the Court to some of the statutory provisions of the Native Title Act which deal with the issue and suggest ways in which that may assist in coming to an understanding of concept.

It is another one of these metaphorical concepts in a way. The only place in the Native Title Act where the words "partial" and "extinguishment" exist together are in the heading of section 23G, but when you go to section 23G - - -

GLEESON CJ: Except that the expression "extinguishment to the extent" appears.

MR McINTYRE: That is right, your Honour.

GLEESON CJ: What can the words "to the extent" mean except partial extinguishment?

MR McINTYRE: That it may be a way of expressing it. The real test, if you look at section 23G, is one of inconsistency, so it is inconsistency to a particular extent. Section 23G, in a sense, does not tell you what partial inconsistency is other than to provide that test which, as your Honour the Chief Justice remarked, is rather similar to what Sir Gerard Brennan said in Mabo and has been said on a number of occasions and has been picked up and set out in the judgment of the majority judges in this case.

What our principal concern is, of course, is the question of whether it is extinguishment in accordance with section 237A of the Native Title Act, which is at 307 of the pamphlet, where the word "extinguish" is given a statutory definition and makes it clear that once you apply the word "extinguishment" then there can be no revival. Now, the problem that we perceive is that there may be levels of inconsistency which are temporal in nature, for instance, which, where there is an inconsistency for a period of time, we would argue that that does not become a partial extinguishment in the sense that there can be no revival, that, necessarily, the native title ceases to have effect or that that part of that which is inconsistent ceases to have that effect.

What we urge upon the Court is a view of the word "inconsistency" as used in 23G, which is similar to that suggested by his Honour Justice Gummow in Yanner v Eaton at paragraph [111], where he made a reference to the Commonwealth v Western Australia [1999] HCA 5; (1999) 160 ALR 638 and, in particular, his Honour Justice Gummow at page 672. Your Honours do not need to have a look at it, but at paragraph [139] his Honour referred to Butler v Attorney-General and identified the temporal as well as substantive connotation of inconsistency under section 109.

We say that if one takes that kind of a view of the nature of the inconsistency which might be described under the heading "Partial Extinguishment", then it is a less damaging result, if you like, and one, we would suggest, which is more in keeping with the kind of protection which ought to be accorded to native title. If one goes then on to section 238, that is reflected in the way in which the legislature has dealt with the concept. It talks, at subsection (2), about the act affecting:

any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

Now, of course, that suggests the possibility of partial extinguishment. "Affect" is defined at section 227, which says that:

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

You will see that is a compendious expression. There is a reference to either "wholly" inconsistent or "partly inconsistent" and then the three possible consequences, and it does not seek to identify which of those might flow. To go back to section 238, subsection (4) we suggest really gives an appropriate kind of test for the concept of partial extinguishment. The subsection says:

If there is an inconsistency of a temporal nature, for instance, then there will be no capacity to exercise the right. For example, if there was a statute which said that nobody can take kangaroo from the area, that might be part of the incidence which might flow under an occupational title of the kind which we suggest is in this case. For the extent of the time that that piece of legislation or that regulation said that no kangaroo can be taken from the area, there would be an inconsistency, but if the legislation was repealed, then the inconsistency would cease and under the umbrella of the occupational title, native title parties would again be able to take kangaroo, we would suggest, if you adopt that approach. Subsection (8), which Mr Sher has read out to you, talks about that kind of temporal inconsistency, and I will not take your Honours to that again.

The kind of problem we see emerging from the way in which their Honours Justice Beaumont and von Doussa have analysed it, is reflected in an example in their judgment at 170 ALR 279 paragraph [470]. They there use an example of - they are dealing with a reserve for Aboriginals and they say:

This reserve created in 1935 and cancelled in 1956 . . . Use for the reserve purpose would not have extinguished native title. However, the grant of an early pastoral lease would have extinguished the exclusivity of native title.

Now, what we say there is that is a misconception of the concept of partial extinguishment on the basis of inconsistency. There may well have been an inconsistency during the period of the early pastoral lease in relation to that activity of exclusion which was part of the overall native title, but when the pastoral lease went away, however long it might have been there in existence, and it is probable from these circumstances it was a short period of time, then there was an Aboriginal reserve where there were Aboriginal people occupying, we would say, in the full exercise of their native title rights.

We would say that it would be a wrong way to deal with the concept of partial extinguishment to say, "Oh, well, if there was an inconsistency for a period of time in relation to a prior grant which did not wholly extinguish the occupational native title, then certainly there may have been an inability to exercise that particular element of the occupational title for that time." But we would say the doctrine of partial extinguishment ought not to be applied to permanently extinguish for all time that element of the title, otherwise you have a short-term inconsistency. Whilst it does not affect any other forms of title, for some reason the principle applied by their Honours is that that would have a permanent effect upon that element of the native title, even though it would have no other permanent effect.

The only other thing that we wish to address is the question of the concept of exclusivity, the concept of exclusive occupation. Again, that seems to have taken on a sort of metaphorical context - - -

CALLINAN J: Could I ask you this question about it: section 248A of the Act defines an exclusive pastoral lease as a lease that:

confers a right of exclusive possession over the land.

Why does not a pastoral lease, in fact, in the ordinary sense confer a right of exclusive possession over the land in the sense that, for example, the pastoralist might want to burn off at any time; he might want to erect temporary or permanent stockyards; he might want to do all manner and kind of improvements; he has a right to do them. If the pastoralist has a right to do them anywhere on the land, why does not the instrument which grants that right confer a right of exclusive possession? It does not say "confers actual exclusive possession"; it says, "confers a right of exclusive possession".

MR McINTYRE: As we would understand the way in which this Court dealt with pastoral leases in Wik, they appear to have taken the view that whilst a pastoralist can apparently do anything that he wants to do within the terms of his pastoral lease - - -

CALLINAN J: There is no reference to section 248A in Wik, is there?

MR McINTYRE: That would not have existed at the time of Wik, no.

CALLINAN J: No. We have to apply our minds, surely, to the statute, not to Wik, at the moment.

MR McINTYRE: All right.

CALLINAN J: Why should that not just be given its ordinary meaning? A pastoral lease enables a pastoralist to do whatever he or she wishes in relation to depasturing on the land. Why does that not confer a right of exclusive possession?

GUMMOW J: It has to be over the land, which means all of it, I suppose.

CALLINAN J: Yes.

MR McINTYRE: And it is a particular statutorily defined concept of an exclusive pastoral lease.

GUMMOW J: Section 248 assumes that there are some creatures which are pastoral leases which are not exclusive pastoral leases.

McHUGH J: That is right, your Honour. I mean, I am not aware throughout Australia, quite frankly, of any pastoral lease which is, indeed, an exclusive pastoral lease. Now, the statute - - -

CALLINAN J: What about a right to exclusive possession? Can a pastoralist, under any of the leases in question here, do anything in relation to depasturing stock anywhere on the land?

MR McINTYRE: Yes, he can, your Honour, and - - -

CALLINAN J: Why is that not a right of exclusive possession?

MR McINTYRE: Because, as the Court did find in Wik, that the size of the area, the waxing and waning, if you like, of the use in that way does not allow you to reach a conclusion - - -

CALLINAN J: But that is a concern, is it not, with what is actually being done? It is not a concern with a right to do things.

MR McINTYRE: That is so.

GLEESON CJ: I think the point that is being put to you for your comment is that part of carrying on the pastoral business is the right of the pastoralist to please himself or herself when and where something is done.

MR McINTYRE: That is right, and whenever he does that, that right prevails over any coexisting rights, and the pastoralist has rights of exclusivity. He can exclude a person, for instance, for the purpose of mustering, for the purpose of corralling stock in a particular way. If he sinks a well, then that is an exercise of the right to exclude people from the area of and surrounding the well. So that the pastoralist has those rights of exclusion as an element of the pastoral lease.

CALLINAN J: Well, if the pastoralist has those rights of exclusion, then, by definition, is not the lease under which the pastoralist has those rights an exclusive pastoral lease?

MR McINTYRE: Well, it may be, and that is one of the things which the High Court, I think, in Wik had some difficulty with because the answer as to whether it is an exclusive occupation tenancy or tenement does not answer the question as to whether other interests can coexist with it. We would contend, for instance, that the native title also has some elements of capacity to exclude within it. Native title parties, it might be said, could exclude the pastoralist from setting up a tourist chalet without any licence to do so within the pastoral lease, and so they too have some elements of capacity to exercise some exclusion in exercising their coexisting interests, and the pastoralist has some right to exercise elements of exclusion. If there happens to be a holder of a mining lease within a pastoral lease, which is a common occurrence, in most States that person would be able to exercise rights of exclusion for mining purposes. So that the answer is not derived from concluding that there is an element of exclusion which is part of the title which might be said to be argued to coexist one with the other. That was really the second point that I wanted to address and I think, having addressed it, I - - -

CALLINAN J: I do not think, with all due respect, that answers my question as to the meaning and effect that you give to the word "right".

KIRBY J: When section 248A was introduced, was it suggested that, in its context and for its purpose in the entirety of the Act, that it was intended to strike at the very foundation of the principles accepted by the majority of this Court in Wik?

MR McINTYRE: I am not aware of any such suggestion.

CALLINAN J: But Justice Gummow in Wik, I think at page 195, cautioned against the use of the expression "exclusive possession" in any event.

MR McINTYRE: That is, I think, the point I was seeking to make, your Honour, and I think Justice Toohey also said in similar terms that it may be that setting up the proposition of exclusive possession really did not assist in answering the question.

CALLINAN J: You see, the pastoralist can maintain an action in trespass, is that not right?

HAYNE J: Against the whole world?

MR McINTYRE: No, I do not think that is so. It is Crown land and the rights to deal with trespasses is under lands legislation.

GUMMOW J: We dealt with that in Wik, I think.

MR McINTYRE: Yes.

GLEESON CJ: Yes, thank you.

MR McINTYRE: If it please the Court.

GLEESON CJ: I think Mr Thomson is next.

MR THOMSON: If the Court pleases. Your Honour Justice Kirby in beginning your judgment in Fejo said that:

the estimation of the rights of aboriginal tribes is always inherently difficult -

And given the debate with my learned friend, Mr Sher, with respect, perhaps the question in Fejo was straightforward compared to those before this Court.

The two basic questions obviously are: how is section 233 of the Native Title Act to be construed to define native title as founded upon the facts in this case? How and to what extent can that native title be extinguished by the various statutes and grants in this case? Mirimbiak's brief written submissions examine native title jurisprudence to assist the Court in these tasks. My submissions will attempt to assist in answering three questions posed by the Court in the last two days' debate.

Firstly, your Honour the Chief Justice asked about the origin of the term "native title" and I will examine the case law in relation to that. Your Honour Justice McHugh asked about the adequacy of the three-pronged test for property expounded by Lord Wilberforce in National Provincial Bank v Ainsworth to assist in examining the proprietary nature of native title, and your Honour Justice Gaudron asked if the right to control access was the only way the Act can operate to protect cultural knowledge. I hope the answers to those questions will lead to the conclusion that section 3(j) in the determination of Justice Lee, "the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the `determination area'." can be reinstated in the determination.

It is useful to look in relation to the first question to Milirrpum v Nabalco 17 FLR 141 where Justice Blackburn sets out the authorities dealing with the advance of the British Empire throughout its various colonies, and he does that at pages 204 to 242. The main cases that he cites, starting with the first in time, are Johnson v M'Intosh and that talks about an Indian title of occupancy, and that is dealt with at page 214 of Milirrpum. Moving on in time, the New Zealand case of R v Symonds of talks about native title proper, and the discussion of that case is at 236 and 237 of Milirrpum and, importantly, at 237 Justice Chapman says in the last paragraph on that page:

"Whatever may be the" opinion of jurists as to the strength or weakness of the native title, whatsoever may have been the past vague notions of the natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers."

KIRBY J: That, of course, was in the context of New Zealand with the Treaty of Waitangi.

MR THOMSON: Of course, your Honour.

KIRBY J: A different situation has prevailed in this country.

MR THOMSON: And, of course, there are different regimes in all the different colonies but, with respect, your Honour, they still are of assistance in construing how the rights of indigenous inhabitants can be respected by the common law, the common law of property applying in all the countries dealt with by Justice Blackburn. The Canadian cases of St Catherine's Milling and Calder - - -

KIRBY J: It is interesting to note on page 239, the following page, that in New Zealand they enacted a Native Rights Act and a Native Lands Act in 1865 - called it that.

MR THOMSON: Yes, your Honour. St Catherine's Milling and the case of Calder are dealt with at 217 and 219 and they talk about "Indian title" in the first case and "Aboriginal title" in the second case. And, Calder, according to Justice Blackburn, stands for the proposition that:

1. Communal native occupancy can co-exist with the existence of the ultimate title in the Crown.

2. Communal native occupancy is a personal, not a proprietary right, which on surrender to the Crown is simply extinguished.

I will be arguing that the law of real property has moved on since that time and that native occupancy can be seen to have a proprietary character. Then, importantly, in Milirrpum itself, his Honour sets out what he says to be his perception of the "relationship to the land" of the indigenous inhabitants. That is at page 167. This is important, in my submission, to construing section 223 which talks about "rights and interests in relation to land". The first whole paragraph on page 167:

As I understand it, the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship. This was not in dispute. It is a particular instance of the generalization upon I ventured before, that the physical and spiritual universes are not felt as distinct. There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.

With respect, your Honours, that answers the proposition put by the Court yesterday that is it not the case that these people are belonging to the land rather than vice versa. It is a holistic relationship in which rights flow either way and it is a crude, with respect, definition and perhaps an unfortunate aphorism by Justice Blackburn that characterises these people as not having rights of a proprietary kind in the land.

The principles that come out of these various cases, with respect, are that a native title is founded in occupation, it is usually communal, it cannot be alienated and it is based - certainly in the Australian cases - on a spiritual relationship with the land.

Viscount Haldane in Amodu Tijani - and your Honour Justice McHugh in Yamirr referred to his extensive imperial experience in the cases before the Privy Council and he speaks with some authority. He, is quoted on page 264 and 265 at Milirrpum at great length, and importantly, he says at the top of the page:

There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law.

Then a bit further down the page, about a third of the way down:

But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence."

Then, at the end of that paragraph:

Abstract principles fashioned a priori are of but little assistance, and are often as not misleading."

Well, as the Court has been insisting in this case, it is the facts in this case that are important and those facts that form the native title, rights and interests and the definition of section 223 must be fashioned around those rights and interests as they are in relation to land.

To move on to the second question, the proprietary character of native title, I would like to start with the chapter of Grays' book, and it was given to the Court yesterday, which neatly summarises the three articles that the Court has referred to in previous cases - - -

GUMMOW J: We have read all that. What do you want to get out of it?

MR THOMSON: I want to get out of it, your Honour, that there is a notion of property that involves stewardship, which he talks - the last of the three notions that he talks about - - -

GUMMOW J: But why are we interested in this question at all? I could certainly be very interested in it, if there is a section 51(xxxi) question. It has always been assumed, and, I think, probably expressly stated, that the section 51(xxxi) authorities embrace rights and interests that could be called native title rights and interests. So, otherwise I do not see why this continued angst about property.

MR THOMSON: Your Honour, I want to draw an analogy between your Honour's - - -

GUMMOW J: The Constitution is ample enough to encompass all this.

MR THOMSON: Your Honour, I want to draw an analogy between your Honour's analysis in Smith Kline & French and also in Yanner about confidential information being of a proprietary character - - -

GUMMOW J: Yes, but what I want to ask you is: do you disagree with the analysis of Justices Deane and Gaudron in Mabo and Justice Toohey?

MR THOMSON: About which point, your Honour?

GUMMOW J: About the nature of native title.

MR THOMSON: No, your Honour, in so far that it is founded in occupation and it can be - - -

GUMMOW J: Their Honours did not anguish themselves over property notions.

MR THOMSON: No. The important thing, obviously, is how it can be protected, your Honour, and that is what the Native Title Act sets out to do.

GLEESON CJ: They said there is no need to argue about whether it is personal or proprietorial; it is sui generis.

MR THOMSON: Your Honour, that is right, but the majority in this case has said that they are not going to accept a right to cultural knowledge as part of the determination because it is not of a proprietary character, in effect.

GUMMOW J: That is another question. Perhaps you had better get to that.

MR THOMSON: Yes, your Honour.

GAUDRON J: Again, that has to be located right in the definition.

MR THOMSON: Yes, your Honour.

GUMMOW J: And you get to this question then in the statute connected to land, do you not?

MR THOMSON: Your Honour, I contend - and the arguments of the appellants in P63 are useful in this respect, at 6.35 to 6.41. They set out arguments about what cultural knowledge means and particularly talk about things such as song cycles and how they are related to land and, from the perspective of the claimants, they create the land, in effect. They are, in a sense, a survey map and/or a text for living, and so they are essentially related to land and, in my respectful submission, can be protected under the Act.

HAYNE J: That they are connected with, that grow out of, concern the land, may be accepted for the purpose of debate. What is the communal group or individual right and interest in relation to land to which you now refer?

MR THOMSON: The right to possess, protect and prevent the misuse of the cultural knowledge that they have. That is as set out in - - -

GAUDRON J: The misuse of by whom? By members of their own people?

MR THOMSON: Or others, your Honour, because - - -

GAUDRON J: Well, who else has it?

MR THOMSON: It could be that, for instance, an anthropologist records a Dreaming story and publishes it in a book or talks about it on the television in a way that could be restrained by injunctive relief, for example.

GUMMOW J: Restrained by injunctive relief on what footing?

MR THOMSON: On the footing - well, if it is - - -

GUMMOW J: You are assuming you are outside the copyright law.

MR THOMSON: Assuming that the copyright law does not apply, your Honour.

GAUDRON J: And you are assuming there are confidentiality principles that are applicable?

MR THOMSON: Yes, your Honour.

GUMMOW J: There are such cases where confidentiality is applied here. But assuming you are outside all of that - - -

MR THOMSON: Yes, I still say that even if that does not apply, your Honour, that the Native Title Act can apply. Of course, there may be relief outside the Native Title Act.

GUMMOW J: Yes, but how does it apply in the words of the Act? You may be right but it will not float up there in the ether, it has to be anchored.

MR THOMSON: Of course, section 223 is opaque as to what rights and interests can be protected apart from that it includes hunting, gathering or fishing rights and interests, and section 225 which sets out what can be in the determination does not help very much either. But, with respect, if, as all the authorities agree, the connection with the land is expressed in this cultural knowledge and is vital to it, it would seem absurd if the Act could not protect it. If it is the linchpin of the relationship to land, the connection to the land under the traditional laws acknowledged and the traditional customs observed by the Aboriginal people or Torres Strait Islanders, if that is the essence of 223, if that cannot be protected then, in my respectful submission, the Act is hollow.

GAUDRON J: It may be, but that does not advance your argument. It would not be surprising if it were hollow in the way you put it because the Act grew out of the decision in Mabo and nothing of that kind was considered in Mabo. Ultimately one has to look as to the meaning, and I would have thought in ordinary language of rights and interests in relation to land or waters.

KIRBY J: Yes, but your point is that this Court should construe the Act in a way that is drawing on the history of how the Act came about, what this Court said in Mabo and Wik and in order to make effective the very purpose of protecting native title, which is something not divorced or transmogrified from what the Aboriginal people see it to be.

MR THOMSON: Entirely, your Honour. As Mr Sher said, in relation to what he was discussing to do with the Act, the Act is there to protect native title rights and interests.

GUMMOW J: Yes, but to protect against what?

MR THOMSON: To protect against - - -

GUMMOW J: On its face, it does not infer rights of action, does it?

MR THOMSON: No, it does not, your Honour.

GUMMOW J: It is a declaratory system, is it not?

MR THOMSON: The Act itself is declaratory, yes.

GUMMOW J: And then the rights thus declared fall for enforcement under the general jurisdiction of courts.

MR THOMSON: Under the common law, your Honour.

McHUGH J: I am not sure that it necessarily follows that this Act is declaratory of the common law. Why do people not start with a statute? Why do they not construe 223(1)(a) and (b) and see what they mean and then ask themselves whether those rights and interests are recognised by the common law. The common law develops. It does not say we were recognised by the common law in 1788 or 1901. Surely you ask yourself whether these rights and interests are possessed under the traditional laws. There are criticisms of the reasoning in lots of judgments, including judgments in this Court and in the Federal Court, as to the manner of defining the content of native title. But the Act, it seems to me, states how you go about it and then finally you ask yourself: are the rights and interests recognised by the common law. That may produce an answer different from the answer that you would have got in June 1992 when Mabo was handed down.

MR THOMSON: I agree with that proposition, your Honour, but the construction of the Act is informed by the common law that has lead up to it, as his Honour Justice Kirby has just said. The Act is declaratory, in effect - - -

McHUGH J: Well, it depends on what you mean by "informed." Background may help you, but it always helps to start with the terms of the legislation. If you start with the common law, you look at the Act then through a particular set of blinkers. It is much better to start with the Act where you can look back and you can look around, but it is the legislation that has to be construed. It seems to me, with great respect to counsel, that much of the argument, if not nearly all of it, is predicated on the basis that really this is a common law case, and I do not think it is.

MR THOMSON: I agree entirely, your Honour. With respect, the detailed scrutiny of section 223 does, in my respectful submissions, stand for the proposition that a right to cultural knowledge can be protected under the Act. I do not say that right comes from common law outside the Act, and the terms that I have taken the Court to, with respect, do lead to the implication that cultural knowledge is a very sort of right and interest that is and should be protected by the Act.

GUMMOW J: Protected against extinguishment.

MR THOMSON: Yes, your Honour, and - - -

GUMMOW J: Protected by getting a determination.

MR THOMSON: It is protected by getting a determination. Once there is a determination, it obviously makes it easier to maintain an action outside both within the common law.

GAUDRON J: What would the action be for?

MR THOMSON: The action could be for damages against the anthropologist in my example.

GAUDRON J: What would the cause of action be?

MR THOMSON: Misuse of confidential information.

GAUDRON J: Well, in that case you do not need a native title right, do you?

MR THOMSON: Not for that particular action.

GAUDRON J: There are a number of questions tied up in it. There is first, so far as I am concerned, the question of "in relation to land". The second is to what extent this right could be recognised by the common law beyond notions of confidentiality. The question whether it is recognised by the common law and you are entitled to bring action on it with respect to it, may be a very different question from whether it is a statutory native title right, if you follow what I mean.

MR THOMPSON: I follow the line of argument, your Honour. What I say is that the Act should be expansively, not restrictively construed, your Honour.

GAUDRON J: Yes. We are not law-maker. The Federal Court are not law-makers. We have to look at what the Act does and what the common law can do. I must say, for my part, I am just mystified by what is involved in paragraph (j) in the determination, what people think is involved in it. Perhaps if I knew that, I might be able to deal with your argument.

MR THOMPSON: Well, your Honour, the submissions that are adverted to by the appellants in P63 do go into the types of matters contemplated.

GUMMOW J:

the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the "determination area".

GAUDRON J: You see, once you get into "associated with" you may well have gone past "in relation to" and that is why I say I simply I do not know what is involved in paragraph (j).

HAYNE J: The old conveyances might have a lot to answer for but at least they attempted to use language precisely. I do not know that this determination bears the hallmarks of close attention to the identification with great care of the rights that are being declared.

MR THOMSON: Your Honour, perhaps that is right and perhaps it could be much better phrased but my point is that the general principle is correct. If the rights and interests can be properly formulated with precision, they should be able to be protected under the Act.

GAUDRON J: Well, that might indeed be the question. Have they been formulated with precision? I, for one, do not know what is meant by that paragraph. I have no idea what it is thought can be done in consequence of that paragraph or cannot be done in consequence of that paragraph.

MR THOMSON: Your Honour, given the time - I have exceeded my limit and perhaps if I could do that in writing in a note to the Court.

GAUDRON J: Yes.

GLEESON CJ: All right, thank you, Mr Thomson. We will adjourn now until 2.15 pm when we will hear Mr Walker.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours, to adapt the recent words of Justice McHugh, we say that this is an appeal in a matter which is essentially and ultimately entirely statutory, that the common law is embedded in the statutory question by reason of paragraph 223(c) and that the common law is also invoked and must be looked at as a matter of the statutory questions raised in cases to which 23G applies.

To adapt the words of Justice Gaudron recently, we say the case is about what the Act does and what the common law can do and we adopt, with respect, the axiomatic description of the common law where it is referred to in this Act as anywhere as a developing body of law. From all of that, it follows, we say, that there are matters of statute and common law involved. The first is interpretative and the second is developmental. The purpose of our intervention is to seek to persuade your Honours that there is a way in which one has to use binding international human rights obligations where the state of the law permits it. As to the first, we say that is covered by authority and is uncontroversial, that that is statutory. As to the second, common law, we say it is in reality uncontroversial, though perhaps not yet the subject of authority in this Court.

So far as the result of this case is concerned - and my spoken comments chiefly address concerns which arise in the Western Australia case, though they are not confined to that - we say that because Australia is bound by Article 5(d), particularly subparagraphs (5) and (7), of the Convention on the Elimination of All Forms of Racial Discrimination and also by Article 27 of the International Covenant on Civil and Political Rights, and because there is no statutory or common law rule to the contrary - a critical requirement - the majority in the Full Court was wrong in using the bundle of rights approach and in concluding that clashes of the kind they identified between enjoyment of aspects of common law native title, as apparently found in the record before them, and the statutory rights, principally pastoral leases to which they had regard, led in the cases before them to partial extinguishment rather than to suspension of the common law native title rights and interests.

We are not saying that there cannot be partial extinguishment. That would be absurd. Subject only to the requirements of 51(xxxi), at the Commonwealth level, clearly enough, Parliament can do all manner of things to property rights, including extinguish and partially extinguishing them. Clearly also, the Parliament has the capacity to do so, notwithstanding the engagements that Australia is bound by internationally. The question always is: what has it done? To paraphrase Justice Gaudron, what does the statute do?

GLEESON CJ: Is there a difference between partial extinguishment of rights and interests and extinguishment of some, but not all, rights and interests?

MR WALKER: Yes, there is a difference. In our submission, with respect, some of the argument before your Honours, and certainly the reasoning of the Full Court, elides any such difference. The bundle of rights approach is one which invites the latter approach as the exclusive means of proceeding. It is misleading in that regard. One need only look at a central statutory provision in this area, namely, section 225, which describes native title as being something which is comprised of "native title rights and interests" and look at the way in which the question is posed in 225(e), where - - -

McHUGH J: Is it not better, from the point of view of the holders of native title, to reject the proprietorial approach and adopt a personal right approach of Justice Deane and Justice Gaudron? It seems to me that such an approach is more easily defended as surviving various legislative and other acts than the proprietary system.

MR WALKER: Like Mr Sher, I come to sing the resilience, not the fragility, of native title, particularly since the Native Title Act, but also in light of the engagements by Australia to binding human rights obligations.

Against that background, the answer to your Honour's question is yes. The same may also be said of the statutory partial extinguishment which is, with respect to contrary argument, plainly provided for in the Native Title Act. That too in certain circumstances must be a form of qualified resilience if the only alternative - - -

KIRBY J: The problem surely is that the Act is posited on what this Court said, that there is a title. Why should Aboriginal Australians be in a lesser position in respect of proprietorial rights than other Australians? So it is not self-evident to me that it is better, especially in the light of the water that has flowed under the bridge, to make this simply something personal that they carry with them as distinct from rights and property.

MR WALKER: May I seek to address what your Honour describes as a difficulty. We would seek to persuade your Honours that what Justice Kirby has identified from the jurisprudence in this Court is, in fact, a condition which does not pose a difficulty but rather provides part of the answer to why satisfying a need to characterise it as personal or proprietorial is futile and does not matter.

GAUDRON J: They are now statutory rights, are they not?

MR WALKER: They are rights which depend upon statute, which is a slightly different formulation from the way your Honour has put it to me. They depend upon a statute in the sense that there is a regime, for example, of extinguishment, including partial extinguishment, a regime of suspension, a regime of reversed common law extinguishment and a number of other matters which go to the very heart, essence and existence of the right or the title and it is clear also that they have a derivation before sovereignty.

GLEESON CJ: Within what you call "the regime of partial extinguishment", what does "partial extinguishment" mean?

MR WALKER: Your Honour, that depends upon an understanding of, in particular, whatever particular statutory provision is being invoked at the time. If I were to take 23G and 23G only, in our submission, for the reasons we wish to develop briefly, because of the way the common law should develop, because of the way 223, 225, 238 and 23G should be interpreted, the answer to your Honour's question is that only partial extinguishment will be achieved under 23G(1)(b)(i).

This puts us at odds with Mr Sher's submission that it proceeds according to a pro tanto, perhaps pro tempore, method and the phrase "to the extent" does not have as a synonym the word "if"; it implies matters of degree. But what it does not do, in our submission, is to authorise a bundle of rights approach by which disaggregation rather than combination is the hallmark of a determined native title. The native title is a discrete and, we would submit, holistic matter special to each case, not capable of being abstracted without facts upon which to make the findings.

Under 225 it is that title which is comprised by the rights and interests that fall to be described and it is those rights and interests in the plural, for example, about which the statutory question must be asked, "Do they confer that right?", which is, one would imagine, in statutory terms, as close as one could get to a working equivalent of fee simple rights, namely, the right to possession to the exclusion of others.

Now, in our submission, when one looks at the non-discriminatory requirements in relation to property owning, including an association with others, in 5(d) of CERD, that picks up the concerns that your Honour Justice Kirby has brought to our attention.

When you look at Article 27 of ICCPR and its concern again for the full rights, the guarantees of culture, including in community, and of religion in 5(d) as well, in our submission, all of that combines powerfully to suggest that where there are choices in statutory language, where there is ambiguity in common law language, where there is no binding authority and stare decisis does not turn, the result then this Court should, not as a matter of taste or preference, but should as a matter of judicial rule, find the common law and interpret the statute in accordance with those international obligations.

McHUGH J: But why should we in this particular case because we know or at least I think we are permitted to know that this legislation represents a carefully worked out compromise between competing parties, and why should we not rely on the text of the statute to keep the parties to their respective bargains? In other words - - -

MR WALKER: No reason at all, your Honour. I have been mistaken or misunderstood if I have given your Honour the impression that the text does not govern. In the proposition we rely upon it is critical, as I said, that there is no statutory rule to the contrary. It is critical that the ordinary interpretation of the statute permits consistency or compliance with the international human rights norm, which, of course, can not prevail over the plain language of the statute. It is only when a choice is available - - -

McHUGH J: Yes, but the problem with that approach is that it favours one group to the compromise at the expense of another group.

MR WALKER: No, it favours finding that Parliament has proceeded in accordance with Australia's international obligations, and that is, in our respectful submission, entirely mandated by authority, not new authority, but relatively recently pronounced again, for example, by your Honours Justices Gummow and Hayne in Kartinyeri [1998] HCA 22; 195 CLR 337 at 384 in paragraph 97. Whether one talks in terms of a presumption and uses the fiction of intention or whether one talks in terms of an onus on those who allege international illegality by Australia, it comes out of the same thing. If the words permit, then the statute is to be interpreted so as to have Australia in compliance with and not acting outside its obligations as a matter of international law.

McHUGH J: Yes, I know, but I keep coming back to - this is a public interest theory of legislation and courts acted on that for a long period of time, but analysis and research of scholarship in recent years has shown that much legislation is the product of compromises. Legislation is not passed in the public interest; it is passed as a result of lobbying groups and compromises being entered into between various groups. Now, why should we not, in effect, treat it as a contract? This is an agreement between - - -

MR WALKER: No, it is a text. It is because it is a statutory text that one does not concern oneself, apart from noting it as a matter of social or political science, with the fact that there were horse trades, compromises and different views on different sides of the advantage or relative advantage being gained by particular wording. One does not worry about the calculus that went into the assessment by rivals in that compromise which led politically to a text being produced. Otherwise, one would not be looking merely at travaux preparatoire; one would be looking at what went on in smoke-filled backrooms as well.

We look at the text and when you look at the text, it is not a question of saying, "I must come down at either one or other part of the spectrum". The Court has to say, "There must be a principled, preferably rule-driven approach to interpretation". The first rule would not be affected at all but, rather, served by what we propose and what is illustrated in Kartinyeri, namely the ordinary English meaning of the words. Then there is the mischief rule. These are rules of statutory interpretation, canons if you will, but they are transparent and they promote certainty.

Then one comes to the text and says that there is also another presumption established by authority and highly productive of respect for the rule of law and, for the reasons we put in writing and which I will not develop now, entirely in accordance with the structure of the Constitution, particularly as to the relation between the organs which make treaties and the organs which make laws. In our submission, it follows from all of that that when one comes to construe the text, starting with a presumption that an international obligation has not been breached, is black letter, it promotes certainty and it does not put the thumb in the scales. If it - - -

McHUGH J: And it is unreal in this context.

MR WALKER: No, your Honour..

McHUGH J: It really is unreal to think that on one side at least they were worried about human rights and international treaties. They were out to protect their economic interest, they were prepared to compromise to achieve a reversal of Wik; and on the other side, those whose rights were being interfered with ultimately gave way.

MR WALKER: Your Honour, one is constrained - - -

CALLINAN J: Mr Walker, the recitals actually say in terms almost what Justice McHugh has just put to you.

MR WALKER: They do.

CALLINAN J:

The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid - - -

MR WALKER: They do.

KIRBY J: It was an Act of the Australian Parliament.

MR WALKER: None of that conduces against our argument at all. The fact that the statute, and this one ,perhaps, par excellence, but all statutes, result from what might be called political accommodation ultimately reflected by a vote on the floors of the houses - - -

CALLINAN J: I have never seen an Act with recitals of this kind. In fact, I have seen this Act described as a treaty and I do not know whether, in real terms, that is an entirely inapt description.

MR WALKER: It is an entirely inapt description - - -

CALLINAN J: Well, I do not know about that.

MR WALKER: It is an Act of Parliament, may it please your Honour.

CALLINAN J: Well, you know the sense in which I say "treaty".

MR WALKER: Yes, I do, but that would require, amongst other things, examining to what extent parties came to a bargaining table in a treaty sense and that is a very large question which is certainly not apt for determination here - - -

CALLINAN J: We can look at the recitals as an aid to construction, can we not?

MR WALKER: Yes, of course. What they do not do, however, is to say that this is an Act whose text is to be construed in any way different from any other Act, and any other Act, as was said in Kartinyeri, and not for the first time, requires to be construed, if the words permit, so as to have the enacting polity, Australia in this case, having acted in accordance with its international obligations. That is an old established and plainly respectable principle. It is, perhaps, merely piquant historical observation but nonetheless worth making, that when the Commonwealth argued WA v The Commonwealth [1995] HCA 47; 183 CLR 373 at 400, in the argument - and I stress only in the argument - by the then Solicitor-General, one finds, and not, we submit, by accident, a reference, among many other heads of power - or many other grounds, I should say - to 51(xxix) in relation to, quite specifically, 5(d) of CERD and 27 of ICCPR.

Not surprisingly, bearing in mind that, for the reasons we have already put, the regimes including in some cases as to partial extinguishment, certainly the regime as to suspension, and certainly the statutory regime as to yielding or prevailing rather than being destroyed permanently where there are clashes, those are matters which can be seen to promote resilience rather than fragility and to permit a culture to exist in the larger system, both legal and otherwise, which is, in our respectful submission, the only possible interpretation of our country's obligations under those provisions.

It is, therefore, so far as the statute is concerned, not a difficult task to say, in answer to Justice McHugh's question to me, that the text must govern, but where the textual words permit choices to be made and in relation to partial extinguishment in 23G in particular, to which I will come in just a moment, those choices are available and the rule we propose, the rule that Kartinyeri exemplifies in the passage I cited will decide that matter so that the Full Court is shown to have been in error, having chosen a method of approach which is calculated to destroy rather than to promote native title.

Your Honours, so far as the statutory matters are concerned, I am conscious of what your Honours have said about the absence of statutory analysis but also of our time limit, may I simply flag the following provisions as matters which, (1), show that it is essentially and importantly statutory, the exercise in hand; (2), show that within the statute, so far as one is concerned with matters of partial extinguishment or clashes between statutory rights and native title rights and interests, it cannot be said that there is any contrary intention, to use the banned word, or any text that shows that this Act is preventing the approach to common law partial extinguishment, which we urge, in the approach to statutory partial extinguishment under 23G, which we urge.

KIRBY J: When one actually looks at the preamble, to which we have been taken, I notice that in the first page there are a number of references to the International Covenants on the Economic Social and Cultural Rights and the other instruments that you have been referring to.

MR WALKER: Yes. In Western Australia v The Commonwealth 183 CLR - - -

McHUGH J: Yes but, Mr Walker, you have to remember, they were put in in the original Act. We are not construing the original Act. We are not construing the Act of the government that has brought this in, in 1993. What happened after Wik is a very different story.

MR WALKER: We are nonetheless construing a text, your Honour.

McHUGH J: I appreciate that, but I would not imagine that the Aboriginal interests would think that this legislation fully protected their rights or fully gave effect to Australia's obligations under various covenants.

MR WALKER: Of course not. There are attempts to satisfy international obligations, which may be good attempts, ill-starred attempts, incomplete attempts, but if they are attempts, for example, they engage the constitutional power. What we want to say about the statute is that it is clear from section 81, which gives jurisdiction to the Federal Court from which the appeal lies to this Court, that this is essentially statutory as to jurisdiction. It is clear from section 61 that the particular mode of proceeding now before this Court was purely statutory. It is clear from section 11 that extinguishment is a matter which is governed, in a sense of being controlled by, the statute; there is to be none contrary to the Act, and it is clear from the provisions of sections 223, particularly paragraph (c) and 225, to which I have already referred, that there are matters of common law necessary when it comes to describe the content in each particular case of that holistic outcome, native title.

GUMMOW J: Mr Walker, what particular sections do you take us to as being very important on which there is a constructional debate and which you say that debate will be guided one way or the other depending upon whether or not one accepts the generalities you have been putting to us? Otherwise we are not getting anywhere.

MR WALKER: Yes. Section 223(c) and 23G(1)(b)(i); now that last one is spuriously precise because it requires all of 23G.

McHUGH J: Sorry, what is the last one, Mr Walker?

MR WALKER: Section 23G(1)(b)(i); that is where the focus ultimately comes. Now, your Honours will appreciate that whether that applies in the Western Australian case depends on other matters, which I may not have time to deal with in answer to your Honour the Chief Justice's question this morning.

Your Honours, before coming to the way in which we say the International Human Rights obligations affect the outcome of the matter, I need to observe two things: the first is that 223(c) calls up the common law; the second is that it calls it up for the purposes of the scheme of legislation which, whether it results from treaty style negotiations or not, resulted in an overall textural scheme which, as your Honour Justice McHugh has observed, has to be seen as having two major phases of creation, nonetheless one scheme now. In that scheme, and for other purposes, one sees, for the indications they give of either contrary statutory interpretation or for the way in which the common law should be shaped, section 44H. Mr Sher has addressed on that; I need not return to it. One also sees section 24MA, which although it wears a new appearance, bears a tolerable relation to the former section 23(6) and the definitions of "permissible future act" under section 235(2) and (5) of the former Act.

One also finds, of course, the provisions to which your Honours have been referred, particularly by Mr Sher, in sections 238(2),(3),(4),(6),(7) and (8), to which I need not return. It suffices to say that the combination of the freehold principle, which is non-discriminatory in accordance with the international obligations, plus the non-extinguishment principle, which is also promoting of the resilience of minority culture in a wider community, under section 238, powerfully suggest that where one has interpretative choices in sections 223(c) and 23G, they are to be taken, as a matter of rule, so as to maintain the country within international obligations.

One then comes to the question of the common law, because it is embedded in the manner I have already referred to, and it is particularly important because, in the two provisions I supplied in answer to Justice Gummow's question, one finds the common law explicitly referred to. The words are used in section 223(c) and the expression "apart from this Act" are used in 23G(1)(b)(i). That common law is, of course, the common law of Australia, to be found from authorities binding in Australia, and there is none which has been cited showing that stare decisis concludes the issue of so-called partial extinguishment, particularly at common law. None has been cited to show that a "bundle of rights" theory can be used to disaggregate rather than to combine rights and interests into a unitary or holistic title.

GLEESON CJ: As I understand what you say on the top of page 98 of your written submissions, the opposable concept to that of a bundle of rights is what you call regarding native title as "primarily a spiritual affair".

MR WALKER: It primarily comes from a spiritual affair, and, for those reasons, cannot be regarded as being defeated by temporary or limited impairments.

GLEESON CJ: I am just looking at the first complete sentence on page 98, which seems to be where you come to the point of this.

MR WALKER: Yes, your Honour.

GLEESON CJ: What I want to be clear about in my own mind is what you say is the alternative to what you describe as a "bundle of rights" approach. First of all, what is the difference between a bundle of rights and a number of rights?

MR WALKER: A number of rights may be listed, and may require always to be described by their separate, discrete, individual titles.

GLEESON CJ: Which is what we are used to seeing at the end of determinations, so far.

MR WALKER: Yes. That, to come to section 225 because, with respect, it is a critical provision, in answer to your Honour's question. But what we are told in 225 is that those listed matters required now, since the amendments under paragraph (b), "the nature and extent of the native title rights and interests", a matter which apparently, in practice, lends itself to a listing or enumeration of apparently discrete rights. They are rights and interests which comprise the title, and we are told that by the words, the chapeau, of 225. They are also the collectivity - all of them, together, in the plural - of those about which the question is asked which must be answered in (e); an answer which surely does smack of the kind of settlement or compromise outcome of the Act, to which Justices Callinan and McHugh have spoken, namely, the practical question necessary for the rest of the world, all others: whether or not that plurality of rights, the whole collection, comprising the title:

confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

GLEESON CJ: Mr Walker, the problem that occurs to me at the moment is that what this legislation and this case is about is collision - - -

MR WALKER: Yes.

GLEESON CJ: - - - and the consequence of that collision.

MR WALKER: Yes, "clash" has been used in the cases and, in our respectful submission, it is the appropriate neutral expression.

GLEESON CJ: Yes, or "intersection" is a word that is sometimes used.

MR WALKER: Yes.

GLEESON CJ: Whereas the ideas reflected on the top of page 98 of your submissions make these things like two ships that pass in the night.

MR WALKER: If it is left there, then that is a failure of the submission. May we make it clear we do not intend the two ships never to meet. It is critical that quite in order to discharge international obligations of the kind we rely upon it is critical that the way in which the ships are to meet and what happens and who has to give way is determined.

GLEESON CJ: But in a practical sense, for example in the present case, we are trying to work out the respective - I will use the word "entitlements" - of a pastoralist and a group of Aboriginal people and the pastoralists and the Aboriginal people both want to know what is the outcome of some collision or clash between their respective rights and interests.

MR WALKER: Yes.

GLEESON CJ: It does not assist either of them to deny the clash, does it?

MR WALKER: No.

GLEESON CJ: Well, how can rights and interests of a kind recognised by the common law of property clash with spiritual rights?

MR WALKER: Because both of them bestow rights of physical enjoyment as well as in a native title case other forms of resort to the same land. It is precisely at the point where the group who claim that spiritual connection binds them to particular land from which they should derive sustenance seek to exercise that, as one would for sustenance, by physically being on the land that there is the clash. The spirituality is picked up by the language of traditional laws and traditional customs, there being nothing in either the word "traditional laws" or "customs" let alone in "acknowledged" or "observed" in 223 to suggest that the evidence in support of that matter cannot be couched in frankly spiritual terms.

GLEESON CJ: But it is because the Aboriginal people in question want to do something or want to be able to stop somebody else doing something or to be consulted about whether somebody else can do something or to be entitled to grant or withhold consent to somebody else being able to do something that the clash arises.

MR WALKER: Yes, your Honour, and that is why when comes to interpret the provisions, particularly of 23G, but that is only because of this particular case and it may not even be that given the state of the factual record, in cases such as that the clash is between two forms of right emanating from - I am tempted to say "radically" but I will not - from utterly different forces, but both subject to recognition and enforcement by the common law as an exercise of sovereignty.

KIRBY J: Can I ask you, is the theory that you are propounding to the Court consistent with what the Court held in Fejo?

MR WALKER: Yes.

KIRBY J: Because the thing that worried me in Fejo was that there had been a grant to a Mr John Benham and then after the grant the land went back to scrubland on which, as a matter of fact and as a matter of reality and as a matter of evidence, the Aboriginal people continued to enjoy their rights, or at least assert their rights.

MR WALKER: Yes.

KIRBY J: Now, the Court held there that because the grant was one of fee simple that expelled the Aboriginal title, but are you not really putting forward a proposition that even in that case one should have or one could have construed the law to provide rights to them? In other words, is what you are putting forward consistent with Fejo or not?

MR WALKER: I am not so bold, your Honour. No, I do not put that. I disavow it. I would seek to refute that argument. Fee simple is different. It is the greatest estate, relevantly, and as such, whether one applies unmodified a Yarmouth v Simmons approach or whether one modifies it, as we seek in a couple of minutes to suggest it should be modified for native title extinguishment inquiries, the same result must follow from a fee simple. That is all I wish to say about Fejo, that it says nothing about the cases here.

HAYNE J: And it follows, does it not, from the nature of the intersection that occurs between the competing rights?

MR WALKER: Yes.

HAYNE J: If that is the core inquiry to identify the intersection and whether one can stand with the other, what is the information that is given to us by resort to the instruments you have mentioned?

MR WALKER: Your Honour, may I answer that question, first, by reference to an error in the Full Court, and, second, by a reading of 23G, informed, as we say, by the interpretative choice available which ought to be made in the way we seek to justify.

The error which comes, we say, on this point in the Full Court is to be found [2000] FCA 191; 170 ALR 159 at 185, in the sequence between paragraphs [90] and [91]. It is highly significant to our argument about the capacity and, we submit, the duty of the Court to shape the common law comformably with the international obligations. That at the beginning of [88] on the previous page, introducing this part of their reasoning, their Honours said and we respectfully accept that there was no authoritative determination of the particular question before them; that the common law, in short, was not going to be decided by stare decisis but by development.

At [90] and [91] what occurs is that there is a reference to the postscript of Justice Toohey at 187 CLR 1 at 132, and, in particular, a seizing we would respectfully say upon the word "yields" without, in our respectful submission, proper acknowledgment that his Honour had used that word and cognate expressions very carefully throughout his reasons so as to leave open, as he does at 108, 131 and 132, the question which he is at pains to leave open, namely, the question as between, for example, partial or whole extinguishment and suspension. The very question at hand.

McHUGH J: Yes, but Mr Walker, you want us to develop the law as if we were back in the time of Mabo, and I have no problem about that generally, but cases like Warnink v Townend say that the common law should be developed in accordance with the public interest as exemplified in legislation. Here the legislature has spoken. Democracy has worked whether good or badly.

MR WALKER: It is not anti-democratic for a court to hold the legislature to the country's international obligations unless the Parliament makes it clear to the contrary. Rather, given that rule of law is either an essential concomitant of democracy or now in our system is part of a conception of democracy, for the rule of law reasons we have developed writing, a judicial approach of that kind is positively democratic.

McHUGH J: That can be accepted, but what we are dealing with here is a compromise, and if the oil producers association or some mining association came in here and said we ought to look at it from the point of the development of the country, then I would have the same reaction to them as I, prima facie, have to your submissions.

MR WALKER: Your Honour has seen already the provisions. With great respect, your Honour has noticed some of them yourself in debate in the Native Title Act, which clearly promotes resilience rather than fragility, or if one would move away from the word fragility to suppleness rather than brittleness, there are such provisions in the Act. It is therefore and thereby impossible to see this as a statute which represents a compromise which turned its face against the international obligations. That is not to say - - -

McHUGH J: I must say that at the moment I think that if there is ambiguity one would be better off trying to interpret provisions in accordance with the bargain of the parties or what they were seeking to achieve rather than going outside, looking at the development of the country or looking at human rights treaties.

MR WALKER: There is nothing outside in holding the country to its international obligations. That is part of the body of law. It has a special role. It has no paramount role at all municipally; but it has a role, according to authority, and old authority, when it comes to interpreting parliamentary words. Your Honour talks about the bargain. Whatever the bargain was, whoever played, with whatever advantages of bargaining position and relative disparities of strength of bargaining position, they produced a text. When we say "they", Parliament produced a text.

If the parallel evidence rule has any continued life in contract, its equivalent, surely, has an evergreen importance in statutory interpretation. You do not look outside. There is no room for.....of statutory interpretation so as to call in aid travaux preparatoire and other materials utterly unavailable to the ordinary citizen in order - - -

KIRBY J: That is not quite right. Since the Acts Interpretation Act developments of the common law we can and do look all the time.

MR WALKER: Which controls it in a way which at least confines it to matters which are publicly available. But the bargaining materials in this case, who on earth could ever construct a bibliography - and that is assuming it is all written - of the material that comprises the record of the bargain and, in our submission, the text is where one starts and finishes and you do not leave it in the middle.

KIRBY J: The bargain is made between private parties as citizens. The Act is made by the Parliament which has constitutional authority.

MR WALKER: Your Honours, to try and finish the answer to Justice Hayne, we say that, for the same reason as applies in the case of statutes, this Court should also proceed as if it were, by rule, to develop common law where it is capable of being developed. That is, where nothing in the nature of stare decisis or a rule beyond judicial change stands in the way so as to be conformable with current international human rights obligations to the extent that they are capable of understanding an application to the case before the Court. The last qualification designed to recognise that there are some aspirational expressions which may be incapable or too protean to inform the process, but not in this case.

GUMMOW J: I have an aspiration that you are going to come to section 23G.

MR WALKER: I am sorry, your Honour, 23G?

GUMMOW J: Yes, you promised section 23G.

MR WALKER: Yes. Section 23G(1)(a) commands within the statutory scheme, a statutory scheme which, in our submission, can be looked at in order to work out what the common law should be as well because wilfully, as it were, to introduce disjunctions between the common law and a statute would be inappropriate. In paragraph (a) it raises the concept of some rights prevailing over native title rights and interests, and the word is "prevail". One does not prevail unless there is, to go back to my answer to the Chief Justice, something in the nature of two ships approaching. One does not prevail unless there is either a clash or a threatened clash.

GAUDRON J: But they are not inconsistent with native title rights and interests. Presumably, that is to be read with the existence of native title rights and interests rather that the individual interests otherwise it would not make sense.

MR WALKER: Yes, your Honour, yes. I want to come back to that phrase your Honour has proposed because we suggest that that is important for 23G(1)(b)(i) as well. But going back to 23G(1)(a) in order to answer Justice Hayne's questions and Justice Gummow aspirations, the "not inconsistent" use, that phrase there, together with the word "prevail" and the saving "but do not extinguish", says and shows this Act has in mind, that there is something in the nature of a clash. There are clashes which are not to be treated as inconsistencies. Now, that is important, bearing in mind that this is a statute enacted in light, obviously, of the critical statutory and common law approach classically demonstrated by Mr Justice Fry in Yarmouth v Simmons.

This Act says there can be things where there are not inconsistencies but, nonetheless, there is a need to dictate which one prevails, that must be a clash. Now, we know that from Yanner in any event, that there may be something in the nature of a clash which by reason of the statutory right, duty or prohibition being, as it were, merely regulatory will not amount to a relevant inconsistency of a potentially extinguishing kind. So the common law told us that and now Parliament has told us that.

GLEESON CJ: Is the heading to 23G in the print part of the Act?

MR WALKER: I am sorry, your Honour, I cannot remember that part of the Acts Interpretation Act. It is part of the Act, but it has a specialised status so far as interpretation is concerned. I apologise, I will get an answer to that. I should say, your Honour, I do not wish, as it were, to pretend that title is not there, which is why I started by saying of course statutes can provide for partial extinguishment and they did in 23G(1)(b)(i), they do.

GUMMOW J: I think the position is it is technically not part of the Act, but under the interpretation statute, it can be looked at if there is any need to iron out a problem. I think that is how it -

MR WALKER: I have it the wrong way around, yes, thank you, your Honour.

May I then come to paragraph (b). There we have the troublesome phrase, "to the extent that" and with regret and respectfully, I differ from Mr Sher's argument. It cannot just mean if. Rather, it does give rise to the possibility of pro tanto or pro tempore affectation, but there is a textual problem which, in our submission, permits the kind of approach that we urge in relation to rendering resilient and supple rather than fragile and brittle.

GLEESON CJ: Just before you go further, pro tanto affectation might be different from pro tempore affection in that the second is consistent with suspension and the first is consistent with extinguishment.

MR WALKER: Yes, your Honour.

GLEESON CJ: Is that the distinction you mean to draw when you use those expressions?

MR WALKER: It is. There is an obvious overlap, perhaps complete between a pro tempore and a suspension. We are told what to do in certain cases in subparagraph (2), but it is important when one looks at "extinguished" as the word is used in subparagraph (i) to understand, with respect, that particularly with very short durational, relatively very short duration matters, which might be quite complete in terms of access, enjoyment, et cetera, of the resources of certain parcels of land, perhaps for a limited public purpose. The notion that the people are reverted hopelessly, as it were, to longing for that land and cannot get it back when it becomes available again is, in our submission, one that has to be looked at very carefully.

GLEESON CJ: Right, well, let us look at one carefully: 99 year leases of land for residential purposes in the Australian Capital Territory. What do you say is the position there, is that extinguishment or suspension?

MR WALKER: Your Honour, a 99 year lease on terms that are available in this Territory is likely to be considered tantamount to fee simple for the purposes of the clash or inconsistency of incidence exercise.

However, that, with respect, cannot be answered a priori and would require, in particular, investigation of whether the particular lease, whether it be a small enclave in a large piece of land, which can otherwise be entirely enjoyed so that it would be sensible to posit that in 99 years time there could well be a group of people easily capable of removing the cottage and restoring that land to the ancestral run. So it will be fact driven, but unquestionably a 99-year lease, residential, particularly with the political expectation that people in Canberra are not going to be evicted en masse, is something which will clearly raise, as the prima facie possibility, the same effect as a fee simple, and not by reason of a legal similarity between the two, but by reason of a practical investigation of the inconsistency of incidence.

Could I go back then to paragraph (b), in subparagraph (i), we know that it is a common law investigation because of the phrase "apart from this Act". We know that the matter raises the question of extinguishment. We are not told, either in preceding case law nor in the statute, what amounts to extinguishment. We have already observed that things which are not inconsistent may nonetheless require one to prevail over another. Now we find that there can be - by comparing subparagraphs (i) and (ii) of paragraph (b), we find that there are things that can be inconsistent, but one will extinguish and one will not, and those are common law expressions.

So the statute has mandated a form of the common law, in our respectful submission, whereby one can find inconsistency with native title rights and interests by reason of the grant of rights and interests. That is what the language, the chapeau, of paragraph (b) requires, the grant of rights and interests that are inconsistent with native title rights and interests and, in our submission, what that means is that the proper common law rule, on what might be called partial extinguishment, is that the common law should deny extinguishment, including partial extinguishment, unless so many aspects of the native title are permanently destroyed so as to sterilise the native title, using that word in the same sense as one gathers from the jurisprudence in an entirely different area, namely, non-express acquisitions of property for the purposes of section 51(xxxi) of the Constitution.

There remains only one point about 23G and that is this: it says that it is triggered where there is an act involving:

the grant of rights and interests that are not inconsistent with -

and it simply says -

native title rights and interests.

In subparagraph (i) the definite article is introduced:

the native title rights and interests -

if the act extinguishes them, the "native title rights and interests" then they "are extinguished". In our respectful submission, that does open up - and here we contend for the same result as Mr Sher in a sense - the possibility, or at least the textual difficulty as to whether:

native title rights and interests in relation to the land or waters covered by the lease concerned -

the expression used at the beginning of (b), means the whole of them. If it does, then the critical question of interpretation is driven by the use in (a) of what is not inconsistent. We know that something could be not inconsistent though it requires one to yield to the other.

HAYNE J: As to that, if two people are given non-exclusive rights to depasture their cattle on black acre, are those rights inconsistent one with another?

MR WALKER: No.

HAYNE J: Does it make sense to say that the rights of A to depasture his or her cattle shall prevail over the rights of B?

MR WALKER: It may very well make sense to say that, in certain cases, and it may be a useful thing to say.

HAYNE J: Is (a) dealing with anything more than that kind of idea?

MR WALKER: No, of course, your Honour appreciates that is a huge genus, particularly when one comes to native title matters. We are not talking about two cows on pasture that may be limited and water that may be limited of access, but, yes, the same genus, your Honour.

HAYNE J: But thus if the pastoralist has right to depasture cattle and there were a native title right or interest, for example, to use some of the foliage or grasses that commonly were found in that area - - -

MR WALKER: That is a clash which will not be an inconsistency given what we are told by the use of words in paragraph (a).

HAYNE J: In which (a) would be engaged?

MR WALKER: That is right. That will be prevailing, for example, in times of drought, one might imagine, although that is an invention of mine, but there will not be an inconsistency within the use of the language in that section. That same use of language is going to be carried over into the cognate in paragraph (b).

HAYNE J: But the cognate in paragraph (b) is engaged if, instead of two non-exclusive rights to depasture, each. There was a purported grant to two people of exclusive rights.

MR WALKER: Yes, your Honour.

GLEESON CJ: A clear example of a clash would be a pastoralist's right to the depasture cattle and an Aboriginal right to set fire to as much of the grass as they thought should be burnt.

MR WALKER: That is a clash. It is not necessarily a relevant inconsistency, let alone one that might give rise to extinguishing. It should not, in your Honour's example, be assumed that the pastoralist would not benefit from firing of the pasture.

GLEESON CJ: The cow might not think much of it.

MR WALKER: No, the cow might not but that depends on whether the cow is there.

GLEESON CJ: Fast enough.

MR WALKER: And, the pastoralist might be extremely happy to obtain the regrowth.

McHUGH J: Mr Walker, it seems to me that it is central to your submission that, to use a term in your written submissions, the privileging of general property rights over native title rights and interests would run foul of the guarantee of equality, but unfortunate as many may think it to be, it seems to me at the moment this legislation does favour general property rights over native title rights.

MR WALKER: Am I permitted to say, your Honour, to some extent, yes.

McHUGH J: When you find that in the legislation and there is ambiguity, what is there that prevents the judge from favouring the balance of the legislature?

MR WALKER: Two things. The fact that - depending on who one is - I suppose it does not matter who one is - to cure its egg because though some have the effect your Honours talked about, I have already named others which have an opposite effect because are there are reverses of extinguishment, for example. Next, it is worth observing, the answer to your Honour's question can be supplied by a conventional statutory interpretation, namely to construe a statute in conformity with international obligations. That is not a matter of judicial preference. That is not a matter, as it were, of taste. It has to be a matter of rule, in order to take its place in the rule of law. That is the way it has always been expressed and that is the way, in our respectful submission, that one would promote certainty in an area of land law.

There was one matter about Yarmouth v Simmons. In our submission, when considering the application of the common law of inconsistency of incidents, as one must in this area and as one is commanded by, for example, 23G(1)(b)(1), it is worth bearing in mind that the sui generis nature of native title right stands in stark contrast, juristically, and for the purposes of this inquiry from the kind of public right that was in question when that pier was built at Yarmouth. The same public whose right was taken supplied the electors who elected the legislature who took it and they could get, if the politics were right, the bargain was right, exactly the same juristic creature from that same legislature, if this was an unintended consequence.

There is no such possibility with native title, once gone, gone forever. So, when one comes to apply the inconsistency of incidence test there is lacking the same symmetry or coherence between the loss of the public right by the public's representatives who can be petitioned to restore it which would apply in Yarmouth v Simmons which is entirely absent in this case because nothing any Parliament can do can give back anything other than a simulacrum of native title, bearing in mind that it derives ad hoc, individually for each group, according to particular evidence. For those reasons, in our submission, there is a principled policy reason as well as the international law reason to read the common law, to develop the common law as to so-called partial extinguishment, so as to show the Full Court was wrong.

GAUDRON J: You do not advance any different construction from that put forward by Mr Basten?

MR WALKER: No.

GAUDRON J: At the end of the day it becomes a question to be decided by examination of statutes and documents.

MR WALKER: Yes.

GAUDRON J: By reference to the incidence of right or title conferred on the conventional property holder?

MR WALKER: It requires fact finding and then, by a mixture of fact and law, consideration.

GAUDRON J: Why would it require fact finding?

MR WALKER: I was talking about in the general case. I am not talking about these cases.

CALLINAN J: Do you not need to have some facts - perhaps they are facts of which we can take judicial notice - but what constitutes pastoral purposes or grazing purposes or perhaps mining purposes?

MR WALKER: Yes, and I would hope that this Bench can take judicial notice of a lot of them, your Honour, yes.

CALLINAN J: But that is a factual component of the exercise?

MR WALKER: Yes. In answer to your Honour Justice Gaudron, and I think also in answer to your Honour Justice Callinan, by "fact finding", I was referring to the 223(a) and (b) task.

GAUDRON J: Yes, I understand that now. Having found that, then it is just see what are the incidence of the rights and titles conferred on the conventional property holder.

MR WALKER: Yes.

GAUDRON J: Then you say, do you - I am sorry, I know you are running out of time. If apart from this Act the act extinguishes, so what we are talking about is common law at an earlier point of time.

MR WALKER: No, it is common law at the time the inquiry is made. There is no need to engage in radical departures from the declaratory theory. The common law develops.

GAUDRON J: I am sorry, that was not the point of my question. Any extinguishment that occurs occurs when the act was done, so presumably what we are looking at, the common law - - -

MR WALKER: How does that act measure up in an extinguishing inquiry according to the common law?

GAUDRON J: Yes.

MR WALKER: May it please your Honours.

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

MR MEADOWS: May it please the Court. We have decided to divide the argument between counsel and my learned friend, Mr Pullin, will commence, followed by Mr Pettit and then myself. We have provided the Court with a schedule setting out the areas that we hope to address.

GLEESON CJ: Thank you. Yes, Mr Pullin.

MR PULLIN: Your Honours, could I start with a couple of preliminary points and observations about this case, just to point out the importance of this issue about the nature of native title and whether it is a bundle of rights and whether those rights can be extinguished one by one. I assume it is obvious to all members of the Court that that has practical importance in this case, because, of course, the Full Court held that pastoral leases extinguished exclusive rights of occupancy, so that was a partial extinguishment; declarations of nature reserves extinguished the right to hunt fauna, which is just one aspect of the bundle of rights; proclamations under Rights in Water and Irrigation Act extinguished exclusive rights; the creation of public utility reserves extinguished certain rights, and certain legislation and regulations extinguished certain of the rights but not all of them. So that is the practical importance of the issue in this case.

GAUDRON J: But what was the test applied to determine that?

MR PULLIN: Well, I am going to deal with those, your Honour, one by one, to the areas and the principles involved.

GAUDRON J: But there was a general test, was there not, of proposed or intended use rather than actual use?

MR PULLIN: I will be coming to that very shortly, your Honour, and I will bear it in mind.

GAUDRON J: Yes, and just to further disturb you, this notion of bundle of rights as against a holistic concept do not have importance at the foreground if we are dealing with the statute, is that right?

MR PULLIN: Well, no, we would disagree with that, your Honour. We would say, as Mr Walker has indicated - - -

GAUDRON J: They might inform the construction of the statute but if we are dealing with the Act, except where 25B(1)(b), I think it is, or (1)(a) operates, the Act will tell us whether there has been extinguishment, not - the "not" is the question, whether there is a bundle of rights or an organic whole theory of native title.

MR PULLIN: Your Honour, the position is that there is no debate on our side that when one is looking at native title rights and interests, one has to go to the statute, see what the statute says - there are certain requirements under section 223 and one of the inquiries is to find out whether the rights and interests are recognised at common law. Let us not talk about when common law is developed. That is one element of it, but certainly one has to go to the statute and if one is going to gain a determination, one has to go through the list, satisfy each of them. We, in fact, raise issues.

For example, in relation to section 223, we have a ground of appeal which deals with this issue of connection which is in 223(1)(b). What is the meaning of "connection"? Can one have spiritual connection alone when, in this case, the court has said there are certain areas, the lake being one of them, where there is nothing but spiritual connection. There has been no evidence of any use of the lake, which is a very large area of water, and there are other areas of land identified by the Full Court where they said there is no evidence of physical use or connection with the land. So, if there is going to be success in this case, it will be because the High Court says that spiritual connection is enough. So we raise an issue in relation to 223(1)(b).

In relation to the rights and interests, we say that in this case - and we have a ground of contention which says there was no evidence that the applicants established any right to exclusive possession. They never exercised it. In fact, his Honour the trial judge went out of his way to say that, in fact, the Aborigines were so badly treated in the area - and he uses all of the adjectives which I have set out very early in the piece - that there was a conquest of them in the area. So it flies in the face of history in this area to suggest that the applicants were exercising a right of exclusive possession and therefore we have - - -

GAUDRON J: When? At sovereignty?

MR PULLIN: No, the relevant period here, your Honour, is the 1880s when the Europeans arrived in the area - - -

GAUDRON J: Well, there may be a real question as to when you look, particularly if it is the legislation which determines whether there was extinguishment.

MR PULLIN: I know that, your Honour, yes.

GAUDRON J: Particularly if it is the legislation which determines whether there was extinguishment.

MR PULLIN: It has to be recognised at common law as well, and I might add, if I - - -

McHUGH J: No, no. It is the rights and interests that have to be recognised at common law, and one possible reading of 223 is it has very little to do now with historical connection. You ask whether the relevant rights are possessed under the traditional laws, whether they have a connection with the land or waters, and then you say, "Are those rights and interests of a kind or a class that are recognised by the common law?" End of question. That is one view of it.

MR PULLIN: We are happy in this case to debate it on any level, your Honour, because at no stage have any of the applicants contended in this case that they exercised a right to exclude others from the land. None of them gave evidence that they had a right to any minerals. None of them said that they tried to exclude people by any means - by physical means, by the assertion of a right. So it does not matter in this case.

GAUDRON J: I think that is not entirely right. Not that I have spent much time on it, but I have a distinct impression, for example, that with respect to the women's sacred site, the women, at least, exclude people from it, even to this day.

MR PULLIN: We will have to come back to that, your Honour, and look at the evidence and - - -

GAUDRON J: No one. Let us deal with principle, because if one is going to have to get to that detail of the evidence, then presumably it is going to go somewhere else to be decided. I would think so. The case came forward as a matter to raise principles, not to go into the facts.

MR PULLIN: On the one hand, we are told that it is a matter of principle, but we have a set of facts to look at. So, for example, in relation to spiritual connection, we will point to the findings that provide a factual basis to examine the principle of whether or not the word "connection" allows for a spiritual connection when nobody has had any physical occupation.

GAUDRON J: Why would it not?

McHUGH J: The word "connection" is a word of the widest import. So is "in relation to". The legislature uses these words. Why do you not give them their ordinary meaning? It has a connection with the land or waters. I was wondering whether there are any rights or interests of Aboriginal peoples or Torres Strait Islanders that do not have a connection with land or waters. I do not know enough about it.

MR PULLIN: It is for the High Court to say. This is why we are here and that is what we are looking for in this case, but it is our submission that spiritual connection is not enough because it has - - -

GAUDRON J: Was this argument raised as a distinct argument below?

MR PULLIN: The spiritual connection point, your Honour?

GAUDRON J: Yes.

MR PULLIN: I believe it was a ground of appeal as such, yes, and, in fact, most certainly we identified areas of land and said there was no evidence of physical use in relation to them.

GAUDRON J: But as the matters turned out, it was not determined by the Full Federal Court.

MR PULLIN: Definitely, it was.

GAUDRON J: It was?

MR PULLIN: Yes. They said spiritual connection is enough. That is the law at the moment.

GAUDRON J: I see, thank you.

MR PULLIN: We would like to suggest that that is incorrect and that there is a set of facts, which we will take you to, and this Court will tell us whether it is right or not.

GUMMOW J: This is part of your appeal?

MR PULLIN: Yes, it is, your Honour. I have not got off the preliminary points yet, your Honour. The second preliminary point is that - you will have already appreciated that there are many layers of extinguishing events, and could I not talk about what extinguishment means, for the time being, but we are talking about 120 years of history, 120 years of legislation, regulation, and 120 years of tenure grants. We have 7,500 square kilometres. This is a case where there is a composite claim being brought, and, at one stage, we had a ground of appeal, now abandoned, about whether or not two groups could, in fact, bring a joint claim.

This government - my client - sees an advantage in being able to negotiate with larger groups and so we have dropped that ground of appeal. One can see the advantage of that, but, on the other hand, one can see what is happening even in this case. We have another case pending at the moment where there is a much greater area of land mass involved and, I think, the tenure documents are three or four times the quantity in this case. This is the problem that is going to be coming up to this Court, or into courts in this land, in the next few decades, unless there is some resolution.

GAUDRON J: Well, it is therefore important to find out what the statute says about all this.

MR PULLIN: I agree, your Honour. These layers of extinguishment in this case, can I just indicate in general what they are. The first layer of extinguishment is the Ord Project. That is the one that covers that big area of land which has already been shown on the plan which is attached to our first set of submissions.

GAUDRON J: I do not understand the expression "the first layer of extinguishment." I just do not understand what you are talking about.

MR PULLIN: All right. Well - - -

GAUDRON J: You are not assuming extinguishment. Are you talking about possible acts of extinguishment?

MR PULLIN: No. If we, for the moment, say that there is - well, there is a finding of the court that the Ord Project - I will come to the definition of that later - that that extinguished all native title in the main part of the claim area. Now, if that is wrong, one then has to say what is the effect of pastoral leases which were granted in that area under the 1933 legislation? And if the Court says, "Well, we've looked at all the provisions of the 1933 Land Act and we do not think they extinguish", then we say there were a lot of pastoral leases granted under the 1898 Land Act, and that had different provisions, and so that has to be looked at as well. If that is wrong, then there were regulations, several sets of regulations, and there were pastoral leases granted under those regulations and those regulations have different provisions again. If all of that is rejected and the Court says none of that extinguishes so far, then we come into a more fragmented area. There are reserves which have been created, have been vested, and we say that they work in extinguishment. They cover a considerable part of the Ord irrigation area. I have not moved outside the Ord irrigation area at this stage.

If the reserves did not, there are leases which did, and we say they are just ordinary common law leases and they extinguished. If they did not extinguish, then in part of the area the Argyle Diamond Project extinguished. If that did not extinguish, there are mining leases. They extinguished. If the mining leases did not extinguish, then there are statutory provisions in the mining and petroleum legislation which indicates that there is extinguishment by those means.

So when I talk of layers of extinguishment, I am afraid the despair that the Court probably feels about the task ahead of it, depending on what course is taken, is something that I think everyone who gets involved in one of these cases encounters because - - -

GLEESON CJ: What you mean by "layers of extinguishment" is sequences of argument through which it is necessary to go, assuming one by one that the previous argument fails in order to consider the existence and extent of extinguishment.

MR PULLIN: Yes. You can call it layers because if you do it in a time sense, you can start off with the earliest grant of a pastoral lease when nothing else had happened and say let us look at that. Then the next layer is a layer in time. It is just an expression, but you are quite right, your Honour, it is just a series of arguments that have to be considered and decided upon.

Now, all of what I have called layers or sequences are subject to notice of contention. Now, strictly speaking, some of the contentions are not contentions in the sense that the rule provides that one must identify erroneous findings which, if corrected, will produce the same result, but it provides a useful collection of these sequences of argument. Some of them have been found in our favour. So, as I say, some of the contentions in our notice of contention, which is at volume 5 - - -

GLEESON CJ: But have some of these arguments been left undecided by the Full Court?

MR PULLIN: I do not know that - - -

GLEESON CJ: I wondered whether it is the case that Full Court, having found in your favour on certain of these arguments, found it unnecessary to go on and consider other arguments?

MR PULLIN: Well, they did in a sense, your Honour.

GLEESON CJ: The reason I asked the question is because I am interested in where it leaves us if we should disagree with their findings on the first lot of arguments.

MR PULLIN: Yes. The trouble is, your Honour, while it is true that - take, for example, leases. What Justice Lee did was to say there was no extinguishment in the Ord Project Area. As a result, he had to consider all of the extinguishing events, sequences or layers and deal with them one by one. When the Full Court considered the matter, they decided that the Ord Project did work a complete extinguishment but, nevertheless, they covered all of these arguments. But in the case of, for example, leases, they said "We will not deal with each and every lease where an argument had been raised because we have already found this extinguishment". But I am afraid this Court cannot escape the need to look at the issue because there are leases outside of the Ord Project Area which we say work in extinguishment.

GUMMOW J: But not leases outside the Ord Area with which the Full Court did not deal?

MR PULLIN: No, we have two which are in our notice of cross-appeal and they are at 2.3. Now, one of those I think we are going to abandon, but there will still be one outside and one of the other parties is running an extinguishment by lease, but not a pastoral lease, it was a grazing lease. So another party is running that issue in any event.

GUMMOW J: But not dealt with by the Full Court?

MR PULLIN: Yes, dealt with by the Full Court, yes.

GAUDRON J: I presume at some stage the question will arise whether, if the Full Court's approach was flawed, this Court should do more than set aside its order and remit the matter to it?

MR PULLIN: I am afraid, your Honour, if that happened, the Full Court would say, "We have already said the pass for that lease is extinguished, so we will find it again" and it is the appellants who do not like that result.

GAUDRON J: If its approach to extinguishment by reference to the use intended is a wrong approach, and that seems to have been its approach with respect to the Ord River and the Argyle Mine, does it not?

MR PULLIN: Well, they applied what has been accepted by, I think, all of the judges who have considered it in the High Court in Wik who considered the issue of that aspect. It is admittedly obiter, but that is what we are here for in relation to - this is the case - - -

GAUDRON J: Wik was dealing with actual use, was it not, since which time statutory provisions have intervened?

MR PULLIN: Well, our argument, your Honour, is that nowhere in the legislation has Parliament said, "When courts consider the issue of extinguishment, they are to completely disregard all prior extinguishment and we revive any native title and extinguish it pursuant to this Act". That is never done. It is either in the relevant area that we are looking at now. It works a clarification or confirmation and it allows for previous extinguishment to remain effective. It does not bring any extinguished native title back to life. If there was an extinguishing event in 1890, we submit that the Native Title Act does not revive those rights in order to extinguish them afresh.

GAUDRON J: No, but the Ord River Scheme is not 1890, is it, and nor, as I apprehend it, more importantly, the Argyle Mine, is not.

MR PULLIN: Well, the Argyle Mine, of course, is such a tiny fraction here; it does not throw up all these complications. It is the Ord Project - - -

GAUDRON J: Why do we not deal with principles instead of throwing up the complications?

MR PULLIN: I want to do that, your Honour, but I do want to finish these preliminary points because if we do not the Court, I feel, is in danger of not quite appreciating why we are talking about these principles and, in my submission, it is important that I persist and just complete these preliminary points. Perhaps I should say what I plan to do. What I plan to do, after I have finished the preliminary points, is to go on to the principles, and I will not take long on the "bundle of rights" point, because that has been pretty well shaken out and nine judges have been content to use the expression "bundle of rights". That is nine High Court judges, and I cannot do better than rely on that.

When it comes to extinguishment, we say that the Full Court was right in its application of the law, as stated by the High Court today. They simply picked up and said, that is what the High Court has said, the three categories or methods of extinguishment and applied it, and that the Ord Project is the result of the application of one of those rules, which have been put forward. So, as soon as I have done that, I would then go to the Ord Project, because to us that is the first and most important subject and I do feel, from the discussions that have taken place to date, that the Court does not have a clear understanding of the facts, in relation to the Ord Project, and I intend to go through those facts.

So, your Honours, the final point I wanted to make, which has already been touched upon, is that this was, of course, an application for a determination by the Federal Court of an application which had been lodged under section 61. The Court has been given jurisdiction to make the determination and section 223 tells us what it is that the Court has to decide when it is deciding native title. As I say, we have grounds that deal with our complaint about some of the aspects of the findings and others we support them, but (c), in our submission, says that one has to look to the common law to decide how one ascertains native title and what the content might be, apart from the facts. So one does still have to have regard to Mabo and Wik and Fejo.

So if I could then go to our outline of submissions, and if I could take the Court - and, as I say, I will not take long with these principles, but there are a couple of aspects that I do want to emphasise - to page 10, paragraph 20, where we summarise the position, and in paragraph 23 we have collected together all of the places where Judges of this Court have described native title as a bundle of rights and on my count of those numbers one reaches the total of 9 judges have been content to describe native title as a bundle of rights. The Full Court accepted that as the law between paragraphs 88 and 93. We need not go there, I think one of the others has referred to it.

So we say that when one is looking at native title, it is correct to describe it as a bundle of rights. That is consistent with, of course, what section 225 requires in a determination. It requires a statement of certain rights and certain things. Section 225 says what the court must determine and exactly what it must say. Working back from paragraph 23, where we have collected together all of the High Court judgments that have referred to native title as a bundle of rights, can I work back up - 22, there are several references to native title being native title rights and interests ascertained by a fact-finding exercise into what activities were, and are, carried out on the claimed land and ascertaining as a fact the laws and customs of the native title claimants.

In 21 there is a reference to the phrase which has come out of Yanner v Eaton. Can I, as gently as possible, say that that phrase causes difficulty, the phrase "various assortments of artificially defined jural rights". It comes from Professor Gray and his wife, the article where they use that phrase and they use the phrase "perception of socially constituted fact". Now, it is unhelpful, in my submission, to use that kind of language because it immediately invites further questions and is in danger of over intellectualising the subject in an area where one needs simplicity.

One suspects that the Grays prefer Proust to Hemingway and while their material is very clear when you read it right through, to seize upon phrases of this kind, in my submission, create difficulties and one hears these phrases being seized upon by both sides. In my submission, it is better to stay with the kind of statements one sees in, for example, paragraph 22, which I think is clear and can be understood by all.

The debate about whether these rights are proprietary or personal, several members of the Court have already said, "Well, what does it matter?". We submit that it does not matter whether you characterise them as proprietary rights or personal rights and so we do not say anything on that topic. In paragraph 24 we submit that the components of the bundle of rights can be extinguished one by one and that there is no logical reason to suggest that native title has to be entirely extinguished rather than diminished by extinguishment of one of its components.

GLEESON CJ: Would it alter the meaning of the first sentence in paragraph 24 if instead of the words in inverted commas, you said, to use the language of the statute, "The rights and interests can be extinguished one by one"?

MR PULLIN: In my submission, it would not make any difference, that is providing the rights and interests are defined in terms that one of the sections indicates, a right to hunt. Section 223 gives an indication of the sort of rights that will be identified in a determination. So if one takes out the reference to bundle of rights and just simply refers to the native title rights, in our submission, there is no difference and we would be content still with the statement in 24.

We say this is true whether the extinguishment is by legislative means, executive acts or even abandonment which we say is a kind of extinguishment, although it does not come up in this case, so we need not concern ourselves with it. Could I correct something. I have taken Justice Kirby's name in vain. I do not think that that page in Mason v Tritton is authority for that proposition.

Now, the appellant's submission, their main submission, the Ward submission, is that native title provides a right of occupation. We say to that that that is just one of the facts to be proved. If it can be proved that a group of Aborigines - take a claim not in this area but say a claim more in the desert - where there are people still living close to their traditional lifestyle, then they may well establish occupation and even exclusive occupation. There may be no one else and they may in fact still control the area in every real sense, but no such finding can be made in this case for the reasons we have mentioned at the bottom of paragraph 25 because Justice Lee - I do not want to take you to the paragraphs - - -

GAUDRON J: But there can be joint occupation, can there not?

MR PULLIN: I am talking exclusive occupation though at this stage. If one talks exclusive occupation - you will see that it follows from - perhaps I should follow this through step-by-step. The Ward appellants are in effect urging the Canadian Aboriginal title, Aboriginal rights, dichotomy, where in Canada there is said to be Aboriginal title, there is a constitutional protection, it is then very difficult to extinguish, there is different extinguishment rules, one has to justify extinguishment under the Canadian Constitution and there are Aboriginal rights which are akin to the native title rights and interests that we see in our legislation. But, nevertheless, it is being contended and everything, I suppose, is a possibility in this case.

The Ward appellants suggest that there should be something like Aboriginal title. Now, if it be a simple adoption of the Canadian Aboriginal title, then I have set out what is required in Canada. You can see this from the Delgamuukw decision in the Supreme Court in Canada, and I have cited the reference to it. It is said that the Aboriginal title requires proof that occupation by the claimants was exclusive at the date of sovereignty and that it continued from that date until the present.

GAUDRON J: Now, may there not be something in this "rights and interests" versus "title" dichotomy that bears on the notion of exclusivity? If you are talking about exclusivity coming from title, you may well be right but if you are talking about a right to exclude people subject, however, to the prior or higher rights of the pastoralists, you might be talking about quite a different thing and the inconsistency may not be an inconsistency of rights and title. What I am putting to you is once you go the bundle of rights way, it is not as clear-cut as you would think.

MR PULLIN: It is not us. It is the other side that is urging - - -

GAUDRON J: No, but you are urging the bundle of rights way and, I mean, prima facie there is a lot to support it, but if one is looking to inconsistency as to the incidence of rights, rather than inconsistency as to the incidence of title, the result may be quite different, depending on where you look.

MR PULLIN: Can I say, your Honour, at this stage we are not, with respect, talking about the clash or extinguishment principles. Here we are just trying to ascertain, in a case where there is no extinguishment contended for, what native title is, what the bundle of rights is or, if it is not a bundle of rights, if it is some kind of a dual monad.

GAUDRON J: Well, it really depends how you define the right in question. That is what I am saying to you. If you talk about a title conferring exclusive possession, then, obviously, it cannot, in the accepted sense, once there is another title conferring a right to possession which must prevail. If you are talking about a right to exclude everybody except those who enter under a prior or higher legal claim, we are talking about a different thing altogether.

MR PULLIN: Well, your Honour, the Canadian concept of Aboriginal title is still fact based. People still have to get into the witness box and give evidence to the court that they had an exclusive right at the date of sovereignty and they put aside difficulties of proof. I think the Canadian approach is to say, "We will allow evidence of current occupation to draw inferences back", which is commonsense, but putting that aside, you have to prove occupation and that it was exclusive, and because it is exclusive occupation, it really is something different from the bundle of rights which might be established by Aboriginal rights, that is, of proving a right to hunt in a particular area or to gather or something of that kind.

Now, that is what the appellants are contending for. We submit that one should not accept that approach. It has not been suggested by anybody in Australia, no High Court Judge has suggested it, and we say that the Native Title Act is based on an understanding that native title consists of a bundle of rights and that there can be partial extinguishment and the words "partial extinguishment" appear.

GAUDRON J: But, again, it depends on how you define the right.

MR PULLIN: Well, I agree with that, your Honour.

GAUDRON J: Let us say - no, I think I will give up. I am sorry.

MR PULLIN: I am sorry, your Honour. I am obviously not answering your question.

GAUDRON J: I mean, if one says you have a right to exclude everyone from the land and you make that statement by reference to title, one thing follows; that if you say an incident of your title is to do that, then one thing follows. If you say, "I have a right under my lease" - for example, let us say it is a weekly rental - "I have a right under my weekly rental to exclude people except my landlord who can come in on a weekly basis to inspect the premises to make sure they are left clean", you are talking about a different right and the point at which inconsistency may come into operation is quite different and, ultimately, therefore, the question of when there might be any extinguishment is quite different.

Once you go down the "bundle of rights" road the extinguishment, it seems to me, becomes less obvious than it does in the case of holistic title, contrary to what has been put against you, because rights are to some extent more flexible than title. That was the point that Justice Deane and I were making in Mabo.

MR PULLIN: Well, your Honour has used the phrase "bundle of rights".

GAUDRON J: Yes.

MR PULLIN: All I am saying is, so that it is understood what the issue between us is, the Ward appellants put up a proposition which sounds as though they are arguing for Aboriginal title as it is understood in Canada, and if that is what they are saying, and it has not been spelt out exactly what the foundation for it would be or what they would have to do to prove it, I can only guess at it, so I guess that they are arguing from Delgamuukw and the Canadian jurisprudence and that they are trying to say that Aboriginal title is Aboriginal title which, if they prove it, gives them something like full ownership or fee simple almost to the land.

KIRBY J: It is some time since I have looked at the Canadian cases, but the Canadian provision for protection of the Aboriginal rights was in the British/North America Act, was it not? It is not something that came with the Charter. There was a specific provision which was in the original BNA Act, is that not correct?

MR PULLIN: Well, it is certainly in the Constitution. I simply cannot remember, your Honour, I will have to check that, take that on notice and come back with it, but it is section 35 of their Constitution and it does provide a protection. The practical effect of it is that extinguishment is then quite difficult to achieve without justifying the action taken to extinguish.

KIRBY J: There were, of course, treaties in Canada as distinct from this country.

MR PULLIN: Yes, that is right, and we probably have not got enough to do in this case, but the examination of the Canadian authorities is just another one of those areas. I will have to go to it.

KIRBY J: Well, there is a certain merit, it seems to me, in a court struggling to find basic principles and to ask fundamental questions, to look for whatever guidance we can get in similar settler societies which have gone down the same route before we did.

MR PULLIN: Yes. The difficulty is, your Honour, that we now have an Act which governs the situation and it is different, yes.

KIRBY J: That is true, it is not a difficulty. For me it is not a difficulty; it is the starting point.

MR PULLIN: Could I just finish off paragraph 25. We say, just as a fact in this case, even if it be the case that you can establish as one of the bundle of rights a right to exclusive possession, the last part of paragraph 25 gives reference to the findings made by Justice Lee that there was a:

conquest, of Aboriginal people in the region was effected by the use of force -

that they were deprived of sustenance, that it fractured their communities and that most Aborigines were "separated from their homeland", put on stations. We say no matter that they continued with their connection of some kind - and let us not debate whether spiritual connection is enough or that they visited from time to time - none of that permits a finding of exclusive occupation.

GAUDRON J: Well, what do you mean by "exclusive occupation"?

MR PULLIN: Well, a right to exclude everyone else and to make decisions about who can come onto the land.

GAUDRON J: As an incident of title?

MR PULLIN: Well, if it is a right of exclusive occupation or possession, which has got an abstract quality to it - - -

GAUDRON J: Well, I am just wondering if there is not a mistake, being the very one that Lord Haldane warned against, of equating the rights and interests possessed under the traditional laws with notions that derive from our law of tenures.

MR PULLIN: Well, the formulation of the claim in this case and the determination that was given by Justice Lee was a statement of sort of abstract rights, possession occupation and use.

GLEESON CJ: Presumably what all these cases start off with is a formulation by some applicants of their claim.

MR PULLIN: Yes, and that is what happened in this case.

GLEESON CJ: The debate then follows along those lines.

MR PULLIN: Exactly. Yes, you are right, your Honour. Further complicated, I might add, that the procedures that have been developed have no pleadings. One delves and tries to understand what the issues are as you go along. It is just an added burden in native title cases as they are running at the moment.

GAUDRON J: All it has to be is the rights and interests are possessed under the traditional laws, the people concerned have a connection with the land or waters, and the rights and interests are recognised by the common law. You seem to be saying because they could not prove continuous occupation and possession - - -

MR PULLIN: Not continuous. Any exclusive occupation or possession.

GAUDRON J: When?

MR PULLIN: Any time, your Honour.

GAUDRON J: Prior to sovereignty? I would have thought that would be quite sufficient.

MR PULLIN: No, any time since Europeans arrived in the 1880s.

GAUDRON J: Why? It is not there in the Act.

HAYNE J: Does this not invite attention to what is meant by 223(1)(a)? To use the language for which you have taken us to task, you are searching to perceive the socially constituted fact. You are looking for what was actually happening under that system of law and custom and you translate what was actually happening into a series of artificial concepts. You translate them into rights, rights and interests possessed under traditional laws and customs observed. But that is, essentially, an inquiry for fact about what that society understood the relationship between the members and the land to be, is it not?

MR PULLIN: I would say two things about it, your Honour. I have now heard two comments, one suggesting you look at the present, and the other suggesting that you look back at the time of sovereignty. But there is no dispute that to establish traditional laws acknowledged and traditional customs observed one has to have some historical context. It was understood in Mabo that one had to go back to the date of sovereignty, which in Western Australia's case is June 1829, but this does not say anything about that. So it may be that now we do not need to ascertain the position as at June 1829 and, in reality, in this case, in June 1829, when a proclamation was read in Perth, the Aborigines in the Kimberleys did nothing. They just continued to do what they were doing - - -

HAYNE J: But the inquiry being for the traditional laws acknowledged, the traditional customs observed. Leave aside the possibility that that may encompass the possibility of some element of change. Essentially, you are looking for a core of law and custom, are you not, unchanged law and custom, because it is tradition and, therefore, do you say it is relevant to look at the position, so far as you can discover it, as it existed pre-sovereignty?

MR PULLIN: Certainly, your Honour, yes.

HAYNE J: Then there comes a question of whether those laws and customs are observed.

MR PULLIN: Still being observed, yes.

HAYNE J: Yes. But do you say that the content of that law and custom - leave aside frills and flounces at the end - might be thought to be largely constant, if there is to be sufficient proof of claim?

MR PULLIN: Well, it seemed in this case, your Honour, that there was - I suppose you could say there were remnants of what existed pre-European times and we are not debating it. We are saying in this case - - -

HAYNE J: Leave aside who owned it, leave aside who the people interested were, where there were great changes you say.

MR PULLIN: Yes, absolutely, yes.

HAYNE J: But is the relationship between the people and the land said, on the evidence below, to have changed significantly on their traditional law and custom, I mean?

MR PULLIN: There were some changes, your Honour. It is not part of any appeal or complaint by us that there were traditional laws and customs in this case. The question is, what are they, and a law is something that has that rather ambiguous quality to it. I mean, one can have laws that bring about some kind of sanction and this debate has been had also, I mean, what is a traditional law, does it require some kind of sanction, a spearing if there is non-observance?

HAYNE J: Or the organised communal imposition of sanction and is custom something less or different.

MR PULLIN: That is right. Now, custom tends to suggest an activity, a customary activity, so what we are looking for is what is it that was actually done on the land in this case, and we say that what was not done - - -

HAYNE J: What was done on, or what the relationship was, and are they different?

GAUDRON J: It is the rights and interests we are talking about, not what happened.

MR PULLIN: Yes.

GAUDRON J: What happened may evidence the rights and interests, but the inquiry is to ascertain the rights and interests by reference to evidence, but not to ascertain the facts, I should not have thought.

MR PULLIN: It is a pretty prosaic exercise, in our submission, and once again we say it should not over-intellectualised. What we say is that what the court does is go to the country, which it does. Traditionally, now, the cases are being conducted by the judge going out into the country claim. We have the witnesses who give evidence to the court. They describe what their traditional laws are and - - -

GLEESON CJ: But are you not omitting an element? Am I right in thinking that this is all done against the background of a formulated claim about the rights and interests?

MR PULLIN: Yes.

GLEESON CJ: So, the inquiry that you are describing is an inquiry in an adversarial context as to whether a claim that has already been formulated by the applicants can be made out.

MR PULLIN: Yes, exactly.

GLEESON CJ: It occurs to me that formulating one of these claims might be a bit like framing the imputations in a defamation case. The higher you put them, the easier they may be to defend, and the higher you put your claim about rights and interests, the easier it may be for somebody to demonstrate inconsistency between that claim and somebody else's right.

MR PULLIN: Your Honour is quite right and we do need to look at the claim which is in volume 1 of the joint appeal book and if you look at page 42 - we are looking at the place where one finds particularity rather than just the formal claim form - page 42. This is a claim for Lacrosse Island but it was a standard format for, I think, all of the areas.

GUMMOW J: Yes, that is the problem.

MR PULLIN: You will see that it ranges from the abstract to the specific and the first:

i The right to possession, occupation, use and enjoyment of the land

ii The right to reside on the land -

If you take that for Lacrosse Island, no one resided on the land. The only Gajerrong person who gave evidence about Lacrosse Island was someone who said he went there by helicopter, not to hunt or fish, but in relation to the claim for native title. That is the only Gajerrong person who had been to the island.

GAUDRON J: Maybe they were not able to exercise their right.

MR PULLIN: Maybe they were not, your Honour.

GAUDRON J: But that is really the point at which the debate comes, does it not? You keep saying that we look to the facts. What I am putting to you is you look to the facts as established only to see whether the right under native title law is made out - under traditional law and customs is made out.

MR PULLIN: Yes. If you do it, you have the right to do it.

GAUDRON J: Which is different from whether or not the right was exercised.

MR PULLIN: Well, your Honour, in our submission, all of the High Court authority on the subject at the moment suggests that it is a fact - - -

GAUDRON J: Yes, but were we dealing with the Act? Certainly, in Mabo we were dealing with one thing. In Wik we had simply pleading questions, if you like. What decision of this Court tells us the meaning of 223(1)(a)?

MR PULLIN: Well, what we have, we had a sheet of paper produced by Mr Barker, where all of the findings were made. They appear in the Full Court as well.

GAUDRON J: No, but that is not my - the question is: is there any authority of this Court construing 223(1)(a)?

MR PULLIN: No.

GAUDRON J: No. This is the first question that has to be addressed on your argument, is it not?

MR PULLIN: That is correct, your Honour.

HAYNE J: Day three of the argument.

MR PULLIN: Well, we say that the rights and interests which have to be established have to be established by some evidence and we say there was no evidence, and it is one of our complaints about the judgment that there was no evidence of the exercise of any right to exclusive possession.

HAYNE J: You could prove it, no doubt, in any of a hundred ways. If you proved that there was a right exercised, you might then go on to invite a court to say because they did it, that infers they did it as of right.

KIRBY J: That is what happened in Mason v Tritton.

HAYNE J: And you could prove it assumedly by getting someone expert in the area who gave evidence relating to his or her expertise, rather than advocacy, which said "I understand what the traditional laws and customs of this people were, they were (a), (b), (c), (d)". But let us not get hooked up on the fact that there is one method of proof being argument back from use in fact.

MR PULLIN: Well, your Honour, I can only put forward a submission and my submission is that this requires proof of exercise at the present time.

GAUDRON J: That comes out of what?

MR PULLIN: That is out of the tense of section 223.

GAUDRON J: Out of "acknowledged" and "observed".

MR PULLIN: Yes.

GAUDRON J: But does that phrase not indicate that the laws have to be acknowledged, not carried into effect, not exercised, acknowledged. Traditional custom has to be observed, but, again, it does not say the rights must be exercised or the interests asserted.

McHUGH J: Mr Pullin, I have the impression that there was very little evidence as to any system of laws and traditions in this particular case. Is that an erroneous impression?

MR PULLIN: Yes, I think that would be unfair on the appellants. I think they gave quite extensive evidence on that. They established a lot of material about Dreaming stories that were well known within the group. They had systems of observance within their community about avoiding the use of names, for example, when someone had passed away. The structures within the families indicated that this group of people all behaved in the same way in relation to these customs or laws which govern the relationships between them and that establishes the existence of a community because there was no claim to individual rights.

So, therefore, all of that evidence goes to whether or not there was a community. If there is communal rights, you need to establish the understanding of what the community is. So there was a lot of evidence of that. We do not challenge that at all. It was quite a strong case in relation to the applicants' claim. To establish the existence of those beliefs and whether their laws and customs - - -

McHUGH J: The judgment of Justice Lee seemed to assume that, perhaps because it was common ground.

MR PULLIN: Yes, and I think this Court can assume it as well. There is no suggestion that this was a group that could not be said to be a group that could hold native title at all and it is not the State's wish to argue that at all against the Miriuwung/Gajerrong people or the Balangarra. So it boils down, in our submission, to whether or not it is right, as is said in our submissions, that the content of native title, its nature and incidence will vary from one case to another and that, to go back to the phrase "artificially defined jural rights", the word "artificial", we think, means "made by human skill and labour", which is the dictionary definition of "artificial". So, in other words, produced by the carrying out of activities which produce the rights which are then claimed. So, in other words, one says, "I do this thing. Traditionally I have done this thing. I want the right to do that thing protected by a determination of native title", and it is just a question of proving those things.

There may be cases where, as I say, to take a group of Aborigines who are living not under the conditions that the Miriuwung/Gajerrong are living, who can establish as one of their bundle of rights, that they did establish occupancy and even exclusive occupancy and it seems to be the case that Mabo was one of them. They actually marked out their plots of land and as a result, that determination in that case, the decision that they had rights against all the world, is because the evidence was so strong in that case but this is the tale of really the cattle industry and all of the witnesses who gave evidence had had experience on the stations, they were great cattle men, and they lived their lives looked after cattle until the pastoral award came which drove them off the stations and on to reserves and some of them expressed regret about that.

So, one has a great deal of sympathy for the situation that they are in but the position is that unfortunately it is necessary to establish that they are still exercising the rights that they claim.

GAUDRON J: So, you say the appeal should be dismissed by reason that it was not open to anyone to find that the claimants were at any relevant time - or were at the time of the claim I suppose it is - were at the time of the claim exercising any of the rights which they claimed.

MR PULLIN: And for the last 120 years that has been the reality. So, that is a ground of contention. We seek to establish that.

GAUDRON J: But you say were not exercising any of the rights or interests which they claimed.

MR PULLIN: No, I am not meaning to say that at all, your Honour.

GAUDRON J: What are you meaning to say? Am I right in saying you say the appeal should be dismissed because by reason of a contention you make, the claimants - you fill in the rest of it for me.

MR PULLIN: Your Honour, what we are just addressing at the moment is our contention that, at least in relation to possession and exclusive occupation and the right to exclude others, that there is no evidence. That is the simple point, and really - - -

GAUDRON J: Well, you said there was no evidence that they exercised those rights.

MR PULLIN: That is right. And we say - - -

GAUDRON J: When?

MR PULLIN: Any time in the last 120 years.

GAUDRON J: Any time in the last 120 years.

MR PULLIN: Once the pastoralists arrived, Justice Lee described what happened to the Aboriginal groups there.

GAUDRON J: Some of them continued to reside on the land.

MR PULLIN: Most certainly, they did, but it - - -

GAUDRON J: And continued to - - -

MR PULLIN: - - - was not exclusive exercise, your Honour. They were there - they gathered around the pastoral stations. They were still in the bush until about the 1930s; there were one or two perhaps, after that date. But, for the last 50 years, people have lived at the stations; they have become - - -

GAUDRON J: So your submission is: because they did not exercise the right of exclusive possession - or possession?

MR PULLIN: Possession, we say, should not be used. We do not deny that there was occupation of the land. Put aside spiritual connection in relation to those areas where we say there was no evidence even of occupation. But, in relation to occupation, we have no difficulty with the use of the word "occupation", as long as it is not exclusive. Because it flies in the face of history to suggest that - - -

GAUDRON J: What do you mean by "exclusive", again?

MR PULLIN: The right to exclude others. In other words, if - - -

GAUDRON J: Can they exclude members of their own community?

MR PULLIN: That is a different debate, your Honour.

GAUDRON J: It may all be tied up in this.

MR PULLIN: Yes.

GAUDRON J: Could they exclude - let us say, now, there is nobody else around, no law enforcement officer, nothing like that, and a television crew comes in by helicopter and says, "We have happened to hear about these sacred things in such and such a position. We are here to film them". Could they exclude the entry of the television crew to the sacred site?

MR PULLIN: One would hope, nowadays, your Honour, that there is - - -

GAUDRON J: No, no. Let us not hope.

MR PULLIN: - - - that there is a sensitivity and I doubt that in reality that a television crew - perhaps I am being wrong about this.

GAUDRON J: That is right.

MR PULLIN: There is a great deal of sensitivity shown in relation to Aboriginal rights now throughout Australia.

GAUDRON J: People may debate that one too.

CALLINAN J: By television crews.

MR PULLIN: Before the land rights era there was not a suggestion that any Aboriginal people in the Kimberleys could exclude Europeans.

GAUDRON J: They could not exclude anybody, but if you talk about the pastoral lease times they certainly could not exclude anybody entering pursuant to the authority of the pastoral lessee. That much may be accepted, but that does not answer the question. If, instead of looking at exclusive possession as we understand it as an incident of title you are looking at the right to exclude people from some or all of the land.

MR PULLIN: Rhetorically one asks how does one prove that right if it is not by showing the exercise of that right? Sorry, your Honour. It is a question I ask myself.

GAUDRON J: Justice Hayne has already told you the answer to that.

GLEESON CJ: Mr Pullin, we are going to adjourn now. I notice that the program assumes that Western Australia will have the whole of tomorrow except for the last hour. I think it is unrealistic to expect that that will be adhered to in the light of the progress that we have made so far but could I ask that you and the Solicitor and Mr Pettit endeavour to make arrangements to divide tomorrow's time between yourselves so that we will be able to have the Northern Territory up first thing on Tuesday morning.

MR PULLIN: That is an adjustment of an hour, I think that works out to.

GLEESON CJ: That gives you an extra hour.

MR PULLIN: No, it takes an hour off the time that we had set in the timetable. We had six and a half hours and we fell behind. We were scheduled to start at a quarter to twelve today and so we have lost that time. We started at 3.15 instead of a quarter to twelve, on the program.

GLEESON CJ: Yes. So, as has been said in another connection, you will all be doing the best you can.

MR PULLIN: Yes. It is really injury time, as somebody has said, that it means that we run into trouble with the time - - -

GLEESON CJ: Obviously, in any program like this, the longer people early on in the schedule exceed their time, the more difficult it becomes for those following them.

AT 4.23PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 9 MARCH 2001

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