	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Australia Transcripts

Home | Databases | WorldLII | Search | Feedback

High Court of Australia Transcripts

You are here: AustLII >> Databases >> High Court of Australia Transcripts >> 2001 >> [2001] HCATrans 89

Ningarmara & Ors v Northern Territory of Australia & Ors P63/2000 [2001] HCATrans 89 (9 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

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

Second Respondents

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondent

Office of the Registry

Perth No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

Second Respondents

Office of the Registry

Perth No P63 of 2000

B e t w e e n -

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Fourth Respondents

ON BEHALF OF THE BALANGARRA PEOPLES

Fifth Respondents

Office of the Registry

Perth No P67 of 2000

B e t w e e n -

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

Second Respondents

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

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

Seventh Respondents

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

Eighth Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 MARCH 2001, AT 10.15 AM

(Continued from 8/3/01)

GLEESON CJ: Yes, Mr Pullin.

MR PULLIN: Thank you, your Honour. Mr Pauling wanted to say something briefly, your Honour.

GLEESON CJ: Yes, Mr Solicitor.

MR PAULING: Your Honours will have a bundle of documents before you headed "Supplementary Documents for the Northern Territory". If I can very briefly explain what they are, they will save a lot of time next week. Do your Honours have that bundle?

GLEESON CJ: No, I am not conscious of it.

GUMMOW J: You have let us into the secret about the Validation of Title Act.

MR PAULING: Yes, your Honour, and that has all the amendments, but the first document is an "APPELLANT'S REVISED CHRONOLOGY". Your Honours will see all the events starting with a pastoral lease being granted in 1893. Annexed to that it tells you what the exhibit number is and the tab and where to find it in the book of materials' reference and so on for each of these events. So that is a key that leads into the next document which is headed "EXTINGUISHMENT OR REGULATION BY INCONSISTENT GRANT OR LEGISLATION". What this does is to take each of the findings made by Justice Lee as to what the native title interest was, "POSSESS, OCCUPY, USE AND ENJOY", and then set against that rights, conditions and obligations starting with those arising under pastoral leases.

In the right-hand column, whereas when we used this document in the Full Court we were arguing that they were exclusive possession leases, as I earlier foreshadowed, we do not maintain that here, so we have amended that to set out what we say is the inconsistency. So we do that for "RIGHT TO MAKE DECISIONS ABOUT THE USE AND ENJOYMENT OF THE DETERMINATION AREA" and so on. So that when one gets to compare that which Justice Lee said was a native title right or interest with those that were granted, then one can see the direct inconsistency and so on for the legislative regime applying both to wildlife legislation and to the control and management of the Keep River National Park. So that this document is comparing apples and apples.

GLEESON CJ: A document of this kind could presumably be produced in relation to the Western Australian situation.

MR PAULING: It could. It would be much more lengthy and complex but, yes, the same thing could be - - -

GLEESON CJ: I am sure we will get an offer of that nature from Mr Pullin before long.

MR PAULING: Yes, and the other document is the submissions we made to Justice Lee concerning Part 2B. We said earlier that we would furnish those to the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Pullin.

MR PULLIN: Thank you, your Honour.

GLEESON CJ: Are you and those with you going to be in a position to provide a similar document?

MR PULLIN: Tuesday, your Honour, yes.

GLEESON CJ: Thank you. Have a nice weekend.

MR PULLIN: Yes. Could I just finish off this first section about the nature of native title and, if you go to page 12 of our revised outline, we make the point which I think has been made by some members of the Bench yesterday, that is that the contention that native title is really a right of occupation would have a disadvantageous result in circumstances where there was, say, the extinguishment of the right of occupation but there were still rights to exercise rights, say, to gather bush tucker. If the Ward appellant's argument is correct then once the right of occupation is extinguished then all other rights would go, all the pendent rights, as suggested.

That is all I wanted to say on what native title is. I also just need to answer a question Justice Kirby asked me yesterday about section 35 of the Canadian Constitution. The provision in section 35 of that Act of 1982 seems to have been introduced in - that was the time it was introduced, it was not in any other legislation before.

KIRBY J: I saw in some of the Canadian cases that there was an old section 65, or something like that, in the 1867 British/North America Act.

MR PULLIN: I am not familiar with that, your Honour. I will have to go back yet again to look at that but the provision which reads:

existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed -

was in section 35 of the Constitution Act 1982 and that is the first time it came in that form. I might just mention that you will note that that word "recognized" appears in our section 223, the last subsection, and I think it seems to be accepted in Canada that that means that if native title rights were extinguished some time in the past they cannot now be recognised.

We would apply that same argument to section 223, that to have a native title right which is recognised it is necessary that it not have been extinguished some time in the past, putting aside the complications after 1975 but assume an extinguishment before 1975, that that would no longer be recognised by the common law in an application now.

If I could turn then to the principles of extinguishment. The submissions, in that regard, are set out at paragraph 9 under the heading "PRINCIPLES - EXTINGUISHMENT" and they run through to the bottom of page 9.

GLEESON CJ: Just before you develop what you say about the principles of extinguishment, one principle that is non-contentious, as I understand it, is that if land is vested for an estate in fee simple, that would extinguish native title. In the written submissions of the Commonwealth on page 33 in paragraph 3.34 and following, reference is made to certain land which was resumed for the Ord River Irrigation Project and it is said that under the provisions of section 18 of the Public Works Act 1993 that land was vested "in Her Majesty for an estate in fee simple".

MR PULLIN: Yes.

GLEESON CJ: Is that land the subject of the present appeal?

MR PULLIN: Yes, it is, your Honour; it is the subject of the Ward appellants grounds [12], which is on page 918 of volume 5.

GLEESON CJ: Now, is any of that land the same as the land in respect of which we have been hearing about pastoral leases?

MR PULLIN: Yes.

GLEESON CJ: What is the proportion and size of that land as compared with the total area the subject of the Ward appellants grounds of appeal?

MR PULLIN: I can show you a picture of it, your Honour, which is in the volume entitled "Western Australia's Further and Better Particulars", if the Court has that volume.

GLEESON CJ: "Western Australia's Further and Better Particulars"?

MR PULLIN: Yes, it is a volume with tabs in it.

GLEESON CJ: Is it a bound volume?

MR PULLIN: Yes, it is bound.

GLEESON CJ: Right, what tab is that?

MR PULLIN: Tab B.

GLEESON CJ: Yes.

MR PULLIN: I was going to take the Court to this when we get shortly to the Ord Project. This is really a picture of the - well I will answer your Honour's question first. The area that your Honour is asking me about is 1.8 in the Legend, the olive portion, and there were two resumptions which vested in estate in fee simple in the Crown and one was 1972 - that has no RDA complications and the 1975 one does, but it is a very small portion as you can see, but it is within the determination area, and bear in mind that the whole of the determination area was the subject of pastoral leases and many of them under regulation, the 1898 Act and the 1933 Act, except for the mudflats which are the portion right at the top.

It is rather interesting that this part of Western Australia, the blue line at the bottom of the crosshatching, is what you might call the coastline, when one goes up there, and then one goes out onto this shaded area, which is some kilometres - you can drive for kilometres across, what you might call "the beach", until you get to the ocean, and at time the tide comes right in and comes up to what you might call the coastline. So the determination in this northern area is on these mudflats and stop at the coastline, and the explanation for this odd break-up of the areas is that there were several Miriuwung/Gajerrong claims and they were at different stages of processing. The other Miriuwung/Gajerrong claim would have filled up the hole between the mudflats and down to the bottom.

So, if it is understood that all of the determination area, apart from the mudflats, and what I will call the mangrove coast of the Cambridge Gulf, which is this section along the Cambridge Gulf - which is not mudflats but which is mangroves, drowned mangrove areas with mangrove trees growing in it. And, once again, the coastline is roughly delineated because it moves around a bit because of the water.

GLEESON CJ: It will be useful, when you come to the submissions you want to make about the Ord River Project, if you just elaborate on what you have been saying in the last couple of minutes, and explain to us the facts - - -

MR PULLIN: Yes.

GLEESON CJ: - - - and the significance of the various arguments that we have been hearing, and will hear.

MR PULLIN: Yes. I think it might also help, while this plan is open, that when one goes to the determination and that part of the determination which, I think, is Schedule 2, which describes in, I think, the first paragraph, the Ord Project area, just in words. This is a picture of the Ord Project area, coloured in, showing the various components of it.

GLEESON CJ: What do you mean by "this"? Do you include the white area or the - - -

MR PULLIN: No, all the coloured areas - - -

GLEESON CJ: The coloured areas.

MR PULLIN: - - - not counting the crosshatching. So, in other words, all those colours in the legend except for the crosshatching, which is - you will see the crosshatching runs through the Ord Project area as well. That is just to indicate that that is the determination area.

KIRBY J: I did not take the Ward appellants to be challenging, in any way, the holding of the Court in Fejo, or asking us to reconsider that, so that, so far as - unless I have misunderstood something - ground (12) is concerned, it would seem to run headlong into the principle established in that case.

MR PULLIN: Well, we would agree with that, your Honour, but it is a ground, so they must be challenging it.

KIRBY J: I did not hear an application to reopen Fejo, so I think there must be some misunderstanding somewhere along the line. We will just have to clarify that.

MR PULLIN: Yes. Now, your Honours, going back to the principles of extinguishment, we say that what we have set out in paragraph 11 of our outline is uncontroversial now and settled law, that is, there are three main methods of extinguishment. One is by legislation. A good example is the legislation in Mabo (No 1). That ran into troubles because of the Racial Discrimination Act, but that is a piece of legislation that is set out to extinguish native title. We have an example of that in this case, the Wildlife Conservation Act, which specifically addresses Aboriginal interests and then seeks to protect fauna. For common sense reasons, I suppose, if you have an endangered species and you have set aside some habitat to protect black cockatoos' nesting sites, it would be strange indeed if native title rights to hunt fauna were still allowed to exist. So we say that there is an extinguishment of that right in relation to nature reserves. So that is the first one.

The second one, which is what we might call the weak analysis applied, that is, that there are laws or acts which create rights in third parties in respect of land which are inconsistent with the continued right to enjoy native title and Fejo is an example of that.

The third one, where there is as yet no decision where there is any ratio, but we have of course dicta, which says that one can have either laws or acts by the Crown acquiring full beneficial ownership of land previously subject to native title. To go right back to the colony in Western Australia, if you think of the first settlers arriving and they build themselves a building on what had then become Crown land to put in the government stores, that was an act by the Crown extinguishing native title in relation to that.

GLEESON CJ: You can go back even further than that to the building of Government House in Sydney.

MR PULLIN: Yes, exactly so, your Honour, that is the same. It is the setting aside of land in that case with simply the building of the building, I think was all that happened in that case.

HAYNE J: Though the end of the inquiry as described in 11.3 is the acquisition of full beneficial ownership. What is notable about each of these paragraphs in your formulation is that they invite attention to the creation of rights rather than inviting attention to the performance of action or carrying on of conduct on the land. Is that intended?

MR PULLIN: Well, the third one is really the conversion from radical title into true ownership. It is, once again, a commonsense approach, that when the flag was run up in Perth and Western Australia was claimed, nothing happened but there had to be some postulate, as it is called, to allow the Crown to then start granting interest in that land, but the law now is that that did not extinguish native title in all of the areas of Western Australia except, first, the store that was built and then when grants were made. In relation to those areas like the building of a public building, first, there is the identification of an area of land, and then there is something done which is more than just somebody in an office saying, "We hereby set aside this land for a courthouse", for example.

KIRBY J: So you accept that just the stroke of the pen in the office in Perth setting it aside is not enough?

MR PULLIN: We agree with that, your Honour. That is the law at the moment. We do not seek to upset it. We do distinguish, however, the situation of a reserve, the creation of a reserve for public purposes. Mr Pettit will deal with that in some detail, but for the moment let us just talk about not the creation of a reserve, but some executive act saying, "Right, we are going to build the High Court, say, on this site" to try and picture it with a piece of land. Nothing happens at that stage, but as soon as the work starts, that is a firm indication that the government is treating that piece of land as its own, as full beneficial owner of the land, and the Native Title Act is now designed so that in relation to public works, as soon as the first spade goes into the ground, extinguishment occurs. One looks at the public works provisions, and when the work commences is when extinguishment occurs.

We say that should be treated as a reflection of the common law position and we had this - really, it is the debate about the Ord Project. All of those coloured areas that we have indicated on that tab B are the areas which were set aside by various means, some not just by a stroke of a pen in an office, some by resumptions. For example, there were resumptions under 109 of the Land Act which were found not to extinguish native title. We were originally challenging that but we have dropped that ground so now that resumption should be treated as a marking out of an area and so awaiting some further thing to happen before it could be said that the full ownership was claimed by the State of Western Australia and that as soon as the first of the works was carried into operation there was then extinguishment over the whole area.

What we have in ground 10 is an attempt - ground 10 of the Ward appellants - is to argue about the fact that parts have not yet actually had a brick put on them. Now, that is a brick-by-brick argument for extinguishment and great uncertainty would be created if in fact what happened is there is an area of land set aside - no extinguishment - the building starts to be built, the courthouse is commenced, the first brick goes on, that extinguishes that area, the next brick extinguishes the next area. We say that is an unworkable idea.

KIRBY J: There seems to be a narrowing of the difference between you. One possibility would be that with the Crown because of its radical title that you look to the setting aside as being equivalent to the grant of an estate. Well, now, you do not claim that. Then the other side say, "Well, we want the brick-by-brick". Where is the intermediate position that you advocate?

MR PULLIN: No, there is none, I think, your Honour. I think the Ward appellants content for the brick-by-brick extinguishment. We say that if the land is set aside and the first step is taken where the Crown is showing its real intention to - if I can use that word "intention" - an act which indicates that there is full beneficial ownership being acquired, as long as the Court is satisfied that the area set aside is a reasonable size then extinguishment occurs. So, take this area of land - and I am not sure whether the trees at the side of the forecourt are within the land set aside for the Court but assume that it is - we do not want to get into an argument about whether the fact that you can still set up a camp within the trees up and down the forecourt means that there has been no extinguishment of native title.

What you ask is, "Is the area of land reasonable for the requirements?" If it is reasonable for the requirements and the first act is taken which is a symbol - it is rather like the act of possession, I suppose, as long as you do something - that is the claim to full ownership of the land.

HAYNE J: Is it relevant, in this connection, to have regard to what the Act says about public works in section 251D, a provision to which I think we have not yet been taken.

MR PULLIN: We are going to make submissions about it, your Honour, but can I just say that when that whole section was introduced, in the second reading speech the Minister said, "Look, we are not intending to work any extinguishment by this provision. It is simply confirmation of what has gone before. We do not intend to work any extinguishment". This volume which is the same reprint that the Court is looking at is quite useful because it has all of the supplementary second reading speeches and material that is useful and the Minister said when introducing that part that:

it needs to be clearly understood that the government does not seek to extinguish native title in this process. We do not seek to go beyond what can be inferred from the decision of the High Court as to what acts have already extinguished native title.

We say that as a matter of intent derived from the reading of the words of the statute plus the reference to the material that can now be considered for the purpose of that process, one reaches a conclusion that if there was extinguishment in the past - and this is all pre-1975 - that is effective, so the provisions of Part 2B do not apply as a matter of construction. Further, it will not be recognised as native title because section 223(c) says that it has to be native title which is recognised and the common law will not recognise native title which has been extinguished, but we will put in detailed submissions about the Native Title Act provisions, your Honour.

KIRBY J: But I am just trying to get clear in my mind the principle that you are advocating, because the principle you are advocating seems - correct me if I am wrong - to be moving towards the Canadian factual analysis of what, in fact, happened. You talk about what is reasonable to set aside. That imposes a big burden on courts and/or the Native Title Tribunal. At least one theory that was propounded before in Mabo and agitated in Wik was that it is a search for legal incidents rather than a search for what, in fact, happened.

MR PULLIN: That is entirely so, your Honour, in relation to the second category, which is the creation of third party rights. The reason for that is once again the need for certainty in the law. Your Honour wrote the most extensive analysis probably of anyone so far in the Wik decision about the analysis and the consideration of the competing arguments that were put up.

KIRBY J: So the Crown's interest is, as it were, taken because of the theory of radical title, because of the special position of the Crown, because that at one stage took the whole of the State and there have been derogation since, you put the Crown into a particular category and you look to its title as to whether it grants itself or by statute is granted a fee simple or sets aside the land for Crown use without an actual title, and then in that second category you look to what was done pursuant to the setting aside, that the setting aside is not enough. But once a third party, a citizen, Aboriginal or non-Aboriginal, becomes involved, then different principles apply and in that case you have to just look at the legal incidents. If it is fee simple, it is Fejo; if it is pastoral leases, it is Wik; if it is some intermediate western lands division, it has to be judged on its own legislation. Is that the overall structure?

MR PULLIN: It is, your Honour, and the best summary of it is in Sir Gerard Brennan's judgment in Wik. Of course, in the Wik decision everyone agreed on the law. There was only a difference of opinion about the application of that law to the pastoral leases. Some Judges thought that there was a conferral of exclusive possession and that that would have extinguished native title and others said there was no conferral of exclusive possession, therefore one had to compare the actual incidents and see what was left after the measuring had taken place, as Mr Pauling has done. One actually wrote the two lists down and then you cross out the native title interests that conflict with the interest granted under the pastoral lease.

GLEESON CJ: But do you add to the propositions to which you just assented that if extinguishment in accordance with those propositions in whole or in part occurred before 1975, then that is a matter to which the Native Title Act as amended in 1998 has nothing to say?

MR PULLIN: That is right, your Honour. There are one or two exceptions.

GAUDRON J: That does not quite tally with the opening words though of Division 2B, does it?

MR PULLIN: I am sorry, your Honour, I did not quite catch that.

GAUDRON J: Well, I said that submission does not quite tally with the opening words of Division 2B. In summary - this is related at least to the Commonwealth and then one, of course, may have different questions with respect to the Western Australian Act but if these were Acts attributable to the Commonwealth, and prima facie that would seem to cover the pastoral leases if they were attributable to the Commonwealth, it says that it provides and it relates to:

certain acts attributable to the Commonwealth that were done on or before 23 December 1996 -

that "will have", and which the past - - -

MR PULLIN: If your Honour looks at the heading, which is part of the statute under the Acts Interpretation Act 1914 , the word is "Confirmation of past extinguishment". We have the statement by the Minister that there is no intention to bring about extinguishment by this regime and we even get the odd provisions like 23G - - -

GAUDRON J: But this Court applies the law, what is in the statute, not the Minister's statement.

MR PULLIN: I agree with that, your Honour, but we are arguing as a matter of confirmation, that is the result. Now, we will deal - - -

GAUDRON J: I find it hard to square it with that language.

MR PULLIN: Well, you get this odd provision, for example, in 23G is just an example of confirmation. If you look at 23G(1)(b)(i), it actually says:

if, apart from this Act, the act extinguishes the native title rights and interests - the native title rights and interests are extinguished;

In other words, if it has been extinguished, it is extinguished. It does not provide any answer in relation to that one because you still have to make the inquiry about whether there was extinguishment.

GLEESON CJ: Well, is your submission, whether it be right or wrong, that the corresponding New South Wales legislation, assuming there is such, does not work a statutory extinction of native title in relation to the area occupied by Government House in Sydney?

MR PULLIN: That is right.

GLEESON CJ: That happened in 1824.

MR PULLIN: Exactly. Yes, I am just told about the section 4 in the overview, section 4(6), which says:

This Act also confirms that many acts done before the High Court's judgment, that were either -

and that is the reference to the Wik judgment -

valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title.

GAUDRON J: But why does it not also confirm that some Acts will not have.

MR PULLIN: It does, your Honour.

GAUDRON J: Yes.

MR PULLIN: But not relevantly in this particular case. Now, your Honours, as I say, those principles, we say, are uncontroversial, which we have set out in 11 and, as I say, the best summary of them is in the Chief Justice's judgment in Wik where he sets out the three categories and explains them and one can find support - - -

GAUDRON J: And in which he was in dissent.

MR PULLIN: Well, he was not, your Honour, with respect, in relation to the law. Everyone is agreed on the law. The only dissent was in the application of the law to the particular documents.

CALLINAN J: Mr Pullin, did any of the Justices in Wik analyse the extent and breadth of what might be done for a pastoral purpose because I, myself, cannot find a passage that explores that in any detail?

MR PULLIN: No, they did not, your Honour, because, really, the - Wik can be broken down into this. First there was a consideration of what the law was. Everyone seemed to be agreed on what the law was. They then turned to the pastoral lease and searched to see whether or not the assumption which underlay the questions, which is whether there was exclusive possession or not, was to be found in the grant of the pastoral lease.

CALLINAN J: In the terms of the grant and the statute under which it was made.

MR PULLIN: Yes.

CALLINAN J: But the terms of the grant were a grant for pastoral purposes.

MR PULLIN: Yes.

CALLINAN J: How can you identify conflicts or collisions unless and until you explore and ascertain the extent and breadth of pastoral purposes?

MR PULLIN: We say that - I might mention that this full Court found that there was a conferral of exclusive possession with our pastoral leases, but said that did not answer the question, because there was an exception in favour of Aboriginal people, under section 106.

CALLINAN J: Which they read as a classical reservation.

MR PULLIN: They said "reservation". I think, in strict terms, it is an exception, because an exception is a holding back, rather than the grant of a new interest.

CALLINAN J: But you challenge that finding here, do you?

MR PULLIN: No, we do not. We support entirely - - -

CALLINAN J: I am sorry. It has been adopted, though, by other parties.

MR PULLIN: Yes, by the changes that were made at the beginning of this appeal. We accept the analysis completely. Of course - - -

CALLINAN J: But to get back to my point here - - -

MR PULLIN: Yes.

CALLINAN J: - - - can I find anywhere in Wik an extensive analysis of precisely what a pastoral purpose might embrace?

MR PULLIN: No. And the reason for that, your Honour, was that the Court said because there was no conferral of the right to exclusive possession, it will have to go back to a trial, so that a list can be generated of the kind that Mr Pauling has produced - - -

CALLINAN J: In order to ascertain whether there is a conferral of exclusive possession, you have to identify, do you not, whether a lease for pastoral purposes itself, having regard to the breadth of pastoral purposes, might embrace or might incorporate the notion of exclusive possession? That is to say, unrestricted, totally unobstructed access at any and all times, to every square metre of your lease.

MR PULLIN: Yes. We say that is - - -

KIRBY J: We were taken in Wik through leases and, clause by clause they were looked at, and, I think, many of the participating Justices did refer to particular provisions.

CALLINAN J: There is nowhere, that I have been able to find - and I would be indebted to anybody who can point to it, if I have missed it - any analysis or consideration of the breadth and extent of pastoral purposes.

MR PULLIN: No, and members - - -

GAUDRON J: But was it not the case, though - I mean, what one was concerned with was the concept of exclusive possession in so far as that gave you the right to exclude others. What you had in Wik, as I recollect, was a provision whereby only the - and, of course, if you have exclusive possession, what you have is the right to bring action for trespass to anybody who trespasses on the land.

GUMMOW J: Including the lessor.

GAUDRON J: Yes, including the lessor. But that was the point of going through Wik and the relevant legislation, to find out who had the right to bring action in trespass, and it was the Crown who maintained that right.

MR PULLIN: That is not so here, your Honour, in Western Australia.

GAUDRON J: That may be so. We will have to come to that. But that was the point of saying there was no exclusive possession. Then went on to say, of course, whatever the pastoral lessor requires to carry on his or her pastoral activities, he has all those rights. He just does not have the right to eject Aboriginal people in the process, if they are not interfering with the exercise of those rights.

MR PULLIN: I am going to address pastoral leases in some detail, your Honour, in due course. But, just to finish Justice Callinan's questions, we say there was not a detailed analysis. There may have been some analysis, but only for the purpose of deciding whether or not there was exclusive possession. Then the Court stopped and said, "It will have to go back for a trial, we will get all the facts, we will find out what the pastoral lease incidents were, and then we will compare them with the native title rights and we will see what is left after one compares one with the other". So the answer is that your Honour's search for that kind of analysis is not to be found in Wik.

Your Honours, could I just move on to paragraph 12 and I really will not be very long on this because it seems fairly clear that this aspect is not controversial any longer.

GLEESON CJ: We need not really be terribly shy about the word "intention", although we might have to explain it. I would endeavour to find out the answer to the question I asked the other day about the origin of the concept of native title. If you go back to 1823 in the United States and the judgment of Chief Justice Marshall, so far as I can see, from then on almost every judicial discussion of native or Aboriginal or Indian title has been accompanied by discussion of extinguishment of such title and every discussion of extinguishment of title has been accompanied by reference to intention.

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

GLEESON CJ: In fact, I can see no discussion of native title that is not accompanied by a reference to extinguishment and intention.

MR PULLIN: Yes, and, your Honour, can I say that one has a feeling about that people think that there is a special rule of statutory construction if there is native title involved in the case, that one has to find clear and plain intention, as though that is some different rule to be added as a chapter to the books on statutory interpretation. It is no more, as Justice Gummow has said, quoting Holmes, "We do not inquire into what the legislature meant, we ask only what the statute means, and one finds out what it means by reading the words". It is chapter 1 of any book on statutory interpretation. It used to be called the literal rule. You found out what the intention of Parliament was, but you did that by reading the words, and now we have been allowed to go back into some materials, as well as just reading the words themselves.

KIRBY J: Would you accept, though, that with greater enlightenment, the passage of time and all the circumstances of the nation, that one is more vigilant today in looking - the eyes of a judge of the 19th century or even the first three quarters of the 20th century would have readily found that intent; whereas today, we are more vigilant and I think it is hardly able to be denied.

MR PULLIN: Yes, but the problem is letting the nation think that there is a special rule of interpretation. The Court recently held in Durham Holdings v New South Wales with a question about the presumption of no appropriation of property without compensation. That is really what lies behind all of this. One starts out with - - -

KIRBY J: You just say this is just a species of a general genus of interpretative principle.

MR PULLIN: Yes, exactly, one says when you are concerned with rights - and let us designate them as property for that purpose, just for the sake of this discussion. Let us not use the word "property", let us say that there is a presumption there will be no appropriation of native title rights and interests without compensation unless the Parliament has spoken on the subject. If Parliament said that it is to be extinguished - this is before 1975 - that is what happened, and there is no magic set of rules about statutory interpretation in this area, that presumption sits there. Then in Durham Holdings the Court collected together all of the expressions that are used like "clear and plain intention", quoting from Chief Justice Spiegelman's judgment in the court below in [1999] NSWCA 324; 47 NSWLR 340 at paragraph 44 where he collected together all of the expressions that can be used.

But "clear and plain intention" is nothing more than the application of Chapter I of any statutory interpretation book and unfortunately there is a mystique developed about it so that people looking for something special in native title that does not exist in relation to any other statutes and, furthermore, it has even reached the point with Justice Lee's judgment where he looked for intention at the point of the passing of the legislation, intention at the time of the grant of a third party interest and intention at the stage of the use of the land which is his Honour's application of what he called "extinguishment by adverse dominion".

So he looked at each stage and he would say with a lease, he would say, "Well, the Land Act does not say anything about native title, so there is no intention to extinguish native title and I cannot see anything in the grant to show an intention to extinguish native title." And when they went on and built their windmills and put the fence around the four-acre block or the small block that he would look at and would say, "Well, they did not do very much on it and so there was no extinguishment of native title" - - -

GLEESON CJ: But if you go back to the old cases that talk about extinguishment and intention, they talk about not a subjective frame of mind in relation to native title; they talk about an intention to do something which is inconsistent with native title, because they are usually considering third party rights, as most property law does.

MR PULLIN: Yes, your Honour. It is settled all really in Australia, unless it is changed by this case, that one does not look for some subjective intention; one is just applying the ordinary rules of statutory construction. That clarification, I think, would help in this area, because it does have the feeling about that there is something special about any statute that you encounter which concerns native title and it is just the same old rules that we learnt at the beginning of our careers, all of us.

Your Honours, in this case, in relation to the categories, I have mentioned that in the first category - and I have used the three categories that Sir Gerard Brennan identified in Wik, where he sets out the three categories, that is, the first category is extinguishment by legislation - we have an example of that in this case with the Fauna Conservation Act; laws are acts which create third party rights; we have Fejo for fee simple; and this case should provide authority in relation to leases, pastoral leases in Western Australia and other tenure, such as mining leases and the like.

GUMMOW J: In Western Australia, is there any equivalent discussion of your pastoral lease and other tenures that matches Professor Fry's description in Queensland?

MR PULLIN: I am going to do that, your Honour. I have a schedule which will show you the history of our legislation and I can say - - -

GUMMOW J: But is there any other writing on it?

MR PULLIN: Not that I am aware of, your Honour, but we have a pretty good analysis and you have one volume which contains the legislation from settlement, all of the - - -

GUMMOW J: But you say the pattern is quite different to the pattern in Queensland?

MR PULLIN: Yes. Can I just say, I do not want to get into this - - -

GUMMOW J: Or the eastern States really.

MR PULLIN: Yes, exactly right. In fact, there came a point where New South Wales and Queensland, at least, departed from the wish of their imperial masters to look after Aboriginal interests and they ignored the suggestion from Earl Grey that there should be protection for them. We in the west are more obedient and we immediately provided - - -

GUMMOW J: Well, you were less numerous too.

GLEESON CJ: Everywhere is east of somewhere else, Mr Pullin.

MR PULLIN: It is not my expression, your Honour.

GLEESON CJ: Christopher Columbus demonstrated that.

MR PULLIN: That is right.

HAYNE J: That is akin to it is 6 o'clock somewhere in the world too.

MR PULLIN: Now, I do not want to just go through this reading out what is uncontroversial. I have covered what we have said in paragraph - let me check. There is this aspect in relation to the second category, which is a grant of third party interest, which we cover in paragraph 13, and that is this aspect that has been called operational inconsistency which comes out of Justice Gummow and Justice Gaudron's judgments in - - -

GAUDRON J: Did we use that term, either of us?

MR PULLIN: No, you did not.

GAUDRON J: No.

MR PULLIN: That is a phrase put on - - -

GAUDRON J: That is right, it is a gloss, and did we decide that question?

MR PULLIN: Well, you said it has been seized upon, your Honour and Justice Gummow - - -

GAUDRON J: Yes, but did we decide that question? That question did not arise for decision, did it? What we said we left open was the question - we left it open, we said so as I recollect - - -

MR PULLIN: I know that, but you did say it, your Honour.

GAUDRON J: - - -whether it impaired or extinguished. We spoke in the disjunctive, did we not?

MR PULLIN: No. It is a different point, your Honour. What happened is your Honour and Justice Gummow both added a comment about what happened if there had been a grant and the grant was subject to conditions that had to be satisfied, and the satisfaction of those conditions were said to give rise to operational inconsistency, so you had to wait and see what actually happened in that limited case. But in relation to the grant itself, unconditional grants, everyone seems to be clear in the High Court that you measure the incidents of that grant. You do not have to wait to see what actually happens on the ground, which would be impossible for the law of property in Australia.

If every grant you had to go back, it would be like going back to the general law where you found out - you have to go to the history of all the grants that have ever taken place to find out what people did on it in order to find out whether or not there is an extinguishment of native title, and no one is suggesting that, at least amongst members of the Court.

Now, paragraph 15 deals with one aspect of the third category, that is, by the setting aside and use by the Crown of land which is held under radical title. I have already covered that. That is our argument against the brick-by-brick extinguishment argument which is put up against us, so we have summarised that in that paragraph. As we say, it is the view of Parliament, not that we say that that can help with the common law, given that, we say, it is not applicable, but the view of Parliament is that in relation to public works, it is when the work commences that there is extinguishment.

Now, can I, just before I finish the area and move into the Ord Project, deal with what Justice Lee did in his version of extinguishment. His Honour adopted what was said by Justice of Appeal Lambert, not in the Supreme Court but in the Court of Appeal in British Columbia, and Justice of Appeal Lambert was in dissent. Justice of Appeal Lambert said as far as he knew no one had applied adverse dominion. He said in any event it did not apply in that case because it was entirely obiter, and during the course of it he expressly disagreed with Mabo, the law in Australia. He said he did not think that fee simple extinguished native title, so he disagreed with Fejo, and he disagreed with the analysis in Wik. Justice Lee applied that in preference to the application of Mabo, Wik and Fejo. We submit that the Full Court was right to say that that was a wrong approach.

KIRBY J: He might have been right in the different circumstances of Canada, but it just highlights what you said earlier, that we have just to be a little careful in the use of Canadian authority.

MR PULLIN: Yes, that is right. I do not want to spend a long time on this, but could I just take your Honours to Justice Lee's judgment and show where he did this. It is at page 508 of the ALR report. His Honour at about line 27 said:

Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title -

and if your Honours stop there, we would agree with that. His Honour added:

and by the exercise of those rights.

That is contrary to what has been decided by the High Court, in particular in Wik. The exercise of the rights is irrelevant and, as I say, Justice Kirby analysed all of the arguments and rejected that, and all members of the Court have. His Honour said:

Such circumstances have been described as extinguishment by "adverse dominion".

In Delgamuukw v British Columbia per Lambert JA -

and that is in the British Columbia Appeal Court -

it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is -

and then "permanently" comes back in again -

permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension - - -

GUMMOW J: That passage in Fejo would not support that, would it?

MR PULLIN: No, it does not. If you go to that, there is no support for that at all on that page of Fejo.

GUMMOW J: There is some discussion in the New Zealand cases, is there not, by Lord Cooke about this? It is Te Runanganui Whenua Incorporated Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20 at 24, where Sir Robin Cooke says native title rights:

cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers, and then only to the Crown and in strict compliance with the provisions of any relevant statutes.

That is quite different.

MR PULLIN: Yes.

KIRBY J: That again would seem to rest on the different situation of the indigenous people of New Zealand because they had this treaty with the Crown which they - - -

GUMMOW J: Likewise in Canada, I think.

MR PULLIN: At least now - - -

GUMMOW J: That may underlie the reasoning in the Court of Appeal in British Columbia too.

MR PULLIN: The trouble is this was a dissenting judgment. Can I just take the Court quickly to the passage of Justice of Appeal Lambert so that your Honours know exactly where it is. Could I just say this at page 9 there is an error in the fifth-last line of paragraph 18. It is quite an important one and the computer decided it would simply eliminate some words and nobody seems to have done it purposely, but after the words "grant of fee" there is a circle and your Honours should insert in there "simple". So, in other words, it should read "fee simple would not alone extinguish native title". The reference to the passage in Justice of Appeal Lambert is given as well, which is DLR 711. We have a bundle of errata which corrects that, which is in the bundle of materials given to the Court. If the Court could go to this judgment which is in - - -

GUMMOW J: What is the current state of authority in Canada, though? This went to the Supreme Court and they sent it back for a new trial, did they?

MR PULLIN: Yes, that is right. Because they decided that oral histories could be taken into evidence when previously the law was not, because their judgment was after the trial, the trial judge had applied the law and then they changed the rules in the Supreme Court, so when they got it they said, "Well, he did not apply the law which had been decided after he decided the case" and because all the evidence was not in the case that had been running for eight years had to go back for retrial.

GUMMOW J: But in the course of deciding that did they decide anything about this division of opinion in the in the British Columbia court?

MR PULLIN: No, they did not because this was not in issue in the case. It was merely a statement by Justice of Appeal Lambert and that is why I just wanted to quickly show the Court it is a - - -

GUMMOW J: But there have been other Supreme Court cases since. Have they said anything about the Lambert theory?

MR PULLIN: Not that I am aware of, your Honour. If you go to page 669 of the Dominion Law Reports his judgment starts at page 603 and under the heading on page 669, "Extinguishment by adverse dominion" you will see that his Honour starts out by quoting from Johnson v M'Intosh where a phrase:

by the exercise of complete dominion adverse to the right of occupancy -

appears, but that is very much like the category that I have been talking about earlier, Category 3. If you just read those words, that is very similar to the Crown saying, "Well, we have radical title, we will set aside this area of land and now we are using it" that is an indication of "complete dominion adverse to the right of occupancy". If that is the view that has been taken that would be fine but what happened is that Justice of Appeal Lambert then developed his theory. You will notice on page 669 opposite g he said:

I know of no Canadian case which has decided that aboriginal title or aboriginal rights can be extinguished by the exercise of adverse dominion. I do not believe that there is one.

GLEESON CJ: He has a considerable doubt. On page 671 at line h, he say he does:

not think that there is any basis in principle for saying that inconsistency between the grant and native title necessarily means that it is the native title that must give way.

MR PULLIN: That is right. And, furthermore, at d he says fee simple is not enough. That is on d on page 670. Then, at the bottom of 670 to 671, the first paragraph, he sets the three conditions which are quoted by Justice Lee, then there is a quote from Mabo which is about the grant of third party rights and at the bottom of the page he disagrees with that. Then, he said that he did not think that the grant is enough to extinguish aboriginal title, on page 672. That is contrary to Wik. Opposite e on 672 he said, "Well, the reason I am not actually going to deal with this is because `there were no tenures' so it could not have been relevant". So, it was obiter dictum in a mid-ranking court in a dissenting judgment in a passage which disagreed with three judgments of the High Court and should not have been followed by his Honour.

Can I finish this by taking the Court to our first submissions, the ones that have been superseded to a tab which is tab A - no, I am sorry, it is not that tab it is another tab. Yes, I think it is tab 1. I am sorry, I am looking at the wrong one. It is tab B in our original submissions, and so that one does not have to search for it we have gone through the whole of the Justice Lee judgment and we have listed all of the grants of tenements and we show where his Honour has applied this three-part test that applied the Justice Lambert judgment and looked for intention, looked for permanent adverse dominion and looked for actual use of the land. So, almost nothing extinguished.

GLEESON CJ: What does "permanent" mean in that connection?

MR PULLIN: Well, no one has explained that, your Honour. I have no idea. We have heard debates about whether 99-year leases would and then you just get into an auction on the subject if one gets into whether or not there is permanency about it, it just becomes a debate about number of years - how long one - certainly, Justice Lee did not explain it at all. He just said that leases where there was a grant of a lease, for example, it just was not permanent. So it is unworkable as a system of certain property law, in our submission, your Honour, and the Full Court rejected it.

The reason for this analysis is that you just need to find out whether or not, in his Honour's judgment, he was, in any particular aspect of the case, pastoral leases and the like, why he was deciding that there was no extinguishment and the reason he said it was because he applied the three-part test which, in our submission, was wrong. Could I then shift to the Ord Project, your Honours?

GUMMOW J: It must have been someone's submission which was being adopted by the judge.

MR PULLIN: I cannot recall it, your Honour. It is suggested definitely not but I cannot remember it well enough to say that, your Honour. I cannot recall any such submission. I might add that Fejo had been handed down, and Wik of course, so all of that law was before the court.

Now, in relation to the Ord Project, there have been some references to the findings that were made by the Full Court, but only a few of them, and there was a very detailed set of findings by the court which ran - first I will identify them - between paragraphs [10] and [15] there is just a general introduction and Mr Barker referred to those. But a very detailed set of analysis and findings are set out between [396] and [443]. Now, I am going to take the Court to those paragraphs.

GAUDRON J: Is there a convenient map we could be looking at at the same time?

MR PULLIN: We looked at it earlier, your Honour, and you can certainly have that open. That is the one in the Particulars. That was at tab - - -

GAUDRON J: Tab 1.

MR PULLIN: Tab 1, was it?

GAUDRON J: Do we need to look at the enlargement as well?

MR PULLIN: No, it was tab - - -

GLEESON CJ: Tab B.

MR PULLIN: Tab B. So, if one has that open, it does help understand as we are going through it.

GAUDRON J: And the enlargement, or we can ignore that?

MR PULLIN: There are some enlargements but the pieces around the town area, your Honour, where things get more complicated, but this will do for present purposes. Now, if then we just look at paragraphs [10] to [15], and I am not going to read these, but if they can be scanned by the Court, it talks in general terms about how the idea of the irrigation of land up here - this was originally all cattle country and then there were thoughts about irrigation as early as 1926. By 1941 there had been a potential dam site identified. They then set up agricultural experiment and research stations in 1945 and they carried out engineering studies in 1945. That is all covered in [10], and then the project - - -

GAUDRON J: Can I take it at this stage it is still pastoral lease though?

MR PULLIN: Yes, that is right. It is all pastoral lease country. The history of it was that in 1880, about 1880, Alexander Forrest went up and surveyed or discovered this area and thought it would be good cattle country and it was opened up and there were pastoral leases. People settled there very quickly and took up holdings and, from then on, it was all pastoral country and cattle country. This is the history of the Ord Project, and there is a reference to the various stages. At the bottom of page 10, there was a construction of a diversion dam - you cannot really see it on this enlargement, and so perhaps if you go to - one of the others helps.

It is in the township area. As one drives into Kununurra, there is a road across the dam itself and there is a smallish lake, which was the first one constructed, and that holds a certain area of water that is described somewhere - I cannot remember - and then the second stage was the construction of the main dam. So they went back up, further upstream, and created Lake Argyle with rather a large dam and an extraordinary area of water is now contained behind that dam. It is tens of kilometres long and kilometres across. One can go out and not see the end of the lake. I think it is one of the biggest man-made areas of water in Australia, if not the biggest.

GLEESON CJ: Where is that on this map?

MR PULLIN: Lake Argyle is shown on this map - you see the blue section. You can see Lake Argyle shown, just with a blue outline with the words "Lake Argyle", and the dam for that is within Reserve 41273. That is the reserve for the actual dam wall and facilities around it. Then Lake Argyle is a man-made creation. There was no Lake Argyle before. The Ord River ran through. It would sometimes flood. The other side tries to say, "Well, really, Lake Argyle was sort of there in the past", but, in fact, the station, Argyle Station, was - we went out during the case, into the middle of Lake Argyle, bobbing around on a boat, and the station was a long way below us in the water. So, certainly, the Ord never flooded to the extent of Lake Argyle. Lake Argyle is there because there is a dam wall.

So what happens is the water banks up behind the dam and then water is released, at times when it is needed, down into the diversion dam, and from the diversion dam the water is then spread out into all of the irrigation areas and the farms, which are set out in the areas which are coloured - well, they are defined as the farm areas. Around Lake Argyle, because cattle had done a lot of damage - and environmentally there is a view, of course, that cattle should not be in this country at all, if you ask environmentalists. It is fragile country. They are hard-hoofed animals and they do a lot of damage and there was a lot of problem with erosion. So there was a need to protect the lake and, as a result, there were fences put around it.

One can see the dotted line showing the fence in the blue area, running between that reserve of the dam wall and the word "land", and running out to the eastern boundary and back around the lake itself. The other areas were also - if you go to the left-hand side, where it says "vacant", and the three words "vacant Crown land", they are the ranges called the Carr Boyd Ranges, and so that is sort of part of the natural wall of Lake Argyle on the western side because - - -

GLEESON CJ: In the middle of the blue-covered area which includes Lake Argyle, there are two small uncoloured areas.

MR PULLIN: Yes, I am not sure why - they are part of the claim area - - -

McHUGH J: They are reserves.

MR PULLIN: The homestead was freehold, so that was a Fejo extinguishment to that area, but it is part of the claim area. There is a note at the bottom of the legend. We thank the Northern Territory for the help of our map. The four white areas were reserves and do not form part of the land described in item 2 of the legend, but are within the land where there was native title extinguishment.

GLEESON CJ: But those two small uncovered or white areas in Lake Argyle are under water.

MR PULLIN: Yes. This is just a description of the history and I am not sure why that was done, but yes, they are under water and permanently under water in the case of the homestead block, which was granted in fee simple. So we know that the diversion dam was created from [10] - that is a small dam. I do not know whether we found a map that showed it anywhere. I think there is. Yes, if you go, under that same tab, down two maps, you see one entitled: "Paragraph 1 & 2 Second Schedule of Determination" and you will see the words "Lake Kununurra" and so there is a reserve just to the left of the lake written "Reserve 38368" and that is the dam wall for the diversion dam and that is the road when one drives into Kununurra, one drives over the top of that dam wall, and so Lake Kununurra is really a widening of the Ord River at that point.

GLEESON CJ: Whereabouts is that?

MR PULLIN: Does your Honour have the map itself?

GLEESON CJ: I have got the first map.

MR PULLIN: It is the third one down, your Honour.

GLEESON CJ: Where is it on the first map?

MR PULLIN: It is too small to see it.

GLEESON CJ: I see.

MR PULLIN: I am sorry; if you want to know where it is. Well it is sort of in the, I suppose, the Fourth Farm Area - about. So that is an area where there is a widening of the river, which is flowing from the bottom of the map towards the sea, which is to the top of the map and off to the left.

GLEESON CJ: There are two areas that seem to be coloured in the same way, but they are quite a distance apart. There is an area coloured pink - - -

MR PULLIN: Which map, your Honour?

GLEESON CJ: The first map, quite close to the Kununurra Townsite, a perfectly rectangular area coloured pink. Do you see that?

MR PULLIN: What are the words against the colouring, your Honour, so that I can pick that up, in the legend?

GLEESON CJ: That is what I am trying to ask you about. There are two areas that are coloured pink, and the pink is said to be Fourth Farm Area and Levee Bank.

MR PULLIN: Yes.

GLEESON CJ: But I notice that there two pink areas at a distance from one another, do you see that?

MR PULLIN: Yes, I do, your Honour.

GLEESON CJ: Do you see that to the south-west of the Kununurra Townsite there is a perfectly rectangular small pink area and then to the north-east of the Kununurra Townsite, with the word "Vacant Crown Land" appearing in it, there is another pink area.

MR PULLIN: Yes, well, certainly the top area is the Fourth Farm Area and so is that slim rectangle that you see near the township area.

GLEESON CJ: So the Fourth Farm Area was divided into two parts, which are quite a distance from one another.

MR PULLIN: It looks like it, your Honour. I must confess I cannot recall it. We may be told about that in the reasons. Has your Honour found the third map and Lake Kununurra?

GLEESON CJ: Yes, yes.

MR PULLIN: So Lake Kununurra is sometimes called the Diversion Dam and Lake Argyle is always called Lake Argyle, although it is sometimes called by Aboriginal people Top Dam, so if there is a reference to Top Dam, that is the one.

Finally, to complete the picture of the flow of water, going back to the big map, the water flows from the bottom of the map where you see Lissadell and Texas Downs, that is the Ord River, and it used to flow through what is now Lake Argyle, down towards Kununurra. It continues up through the coloured areas and then it veers off to the left. The Court may see the Ord River continuing off and then running into the bottom of the Cambridge Gulf, where the flow is from the bottom up into the Cambridge Gulf.

GLEESON CJ: Now, is it the case that every part of this first map that is crosshatched is the subject of the claim or the determination called the Determination Area?

MR PULLIN: Yes.

GLEESON CJ: The parts that are both uncoloured and without any crosshatching are the subject of other claims with which we are not presently concerned. What about the area to the north and slightly to the west of Fourth Farm, which has what I am not sure is either crosshatching or it looks like the way you would depict some residential allotments on a developer's - - -

MR PULLIN: Yes, I do not know, your Honour, but it is not part of the claim area and not part of the Determination Area.

GLEESON CJ: So, whatever that is, we can ignore it?

MR PULLIN: Yes. Yes, I am reminded, it was going to be an Israeli settlement in the 1930s. There was a plan to make Western Australia the Palestine.

CALLINAN J: A bit later, was it not, I think? I think it was a bit later there was a serious proposal to establish, in effect, Israel in Australia.

KIRBY J: Mozambique was another impossibility that was talked of. Mozambique - - -

GLEESON CJ: We probably do not need to - - -

KIRBY J: All too late.

MR PULLIN: It is interesting but not relevant. Now, does that answer all the questions at this stage, your Honour.

GLEESON CJ: Yes, thank you.

MR PULLIN: Now, just continuing with paragraph [10] - - -

GLEESON CJ: Oh, I am sorry, there is one other imposition I have to make. At some stage before next Friday, that is Friday of next week, what we would like is some document or a reference to a document, if it already exists, which shows us in relation to each of the various crosshatched parts of this map the issues that arise by reference to the decisions at first instance and on appeal that we have to decide in relation to those different localities.

MR PULLIN: Yes. May be - - -

HAYNE J: No doubt including reference to the relevant ground of appeal, cross-appeal, contention.

MR PULLIN: Might be a bit black, your Honour, the page. But we will do that and it will help, but can I just mention now - I do not want to get into the detail of this - we do have a revocation motion on foot.

GLEESON CJ: I believe we understand that.

MR PULLIN: Could I just mention briefly why at this stage. There were three grounds of appeal in the draft notice of appeal which complained about the decision of the Full Court in relation to the Ord Project. Leave was refused on those three grounds and during the course of the hearing one of the counsel - I think it was Mr Sofronoff - appearing said, "What about letting us argue in relation to the buffer zones, which they said were not used as part of the project?" The Court granted special leave, and that is now ground (10). So there is not, in fact, a ground that deals with the whole of the Ord Project because those grounds were all refused, special leave was refused in relation to them.

There is an attempt now being made to try and argue about the findings of fact that were made about what actually happened on these grounds. In amongst the papers which we have handed up, there is a bundle of papers which has the division of work between the three counsel appearing for us. In that bundle you will see the material that explains what happened in relation to the special leave application. We have put in there the draft notice of appeal. We have crossed out the grounds that leave was refused in relation to. We have put the order that was made. We put a schedule showing an analysis of the - the schedule comparing the current notice of appeal and the old ground of appeal that appeared on the special leave application.

A strange thing happened in this case that does not usually happen. Usually when one gets special leave, if you try and add a word to the ground of appeal that leave was granted for, you will not get it past registry. They will send it back and say, "You didn't get leave for that and you can't get it through." But, in fact, there seems to have been a rewriting of the grounds by the Ward appellants in this case, and we have shown how they have rewritten into some of the grounds, into the principles, the issue about the Ord Project. So we say that there is something that has to be decided there. It is for the Court to decide what the outcome is.

But in relation to ground (10), which relates only to the buffer zones, we say there is an answer to the buffer zones. The Court found that the whole Ord Project extinguished. They found it was a reasonable area of land for the project. There is no suggestion that it was unreasonable. Until we have an argument in this Court, there is an attempt to persuade the Court that certain areas were or were not used, which is not the venue for that kind of debate. Findings have been made. There is no ground of appeal challenging the findings. We should only read the findings.

So if the Court decided that, in fact, the decision of the Full Court, which held that the Ord Project extinguished native title over the whole area, has not been challenged with the leave of the Court, then we say that the whole of the decision in relation to all of this coloured area should stand.

GLEESON CJ: What do you mean by the "whole area" in that context?

MR PULLIN: All the coloured area on this map that we are looking at.

GLEESON CJ: Right. You do not include the crosshatched areas on the north and west extremities?

MR PULLIN: That is right, what I will call the mudflats and the mangrove coast, that is not part of that debate.

GLEESON CJ: But what you call the Ord Project Area includes everything that is coloured on this map?

MR PULLIN: Yes, that is right.

GLEESON CJ: Including the Kununurra town site?

MR PULLIN: Well, the Kununurra town site is, in fact - the detail is not enough here, but the determination area and the area under claim did not include the town site, and it is too small - - -

GLEESON CJ: Well, then, we need to be accurate about this. By the Ord Project Area, do you mean everything this is coloured on this map except the Kununurra town site?

MR PULLIN: And the pieces that - when you go to the detail, there were little parts in there that were not part of the claim, but in the main it is all of that area, yes. There is some detail that one has to go to to see where there was not a claim around the township area and the farm, certainly the farms.

GAUDRON J: And what is current cerise, mauve, crimson - I am sorry, it is 1.9, the now Reserve 31165, you include that in the Ord River Project?

MR PULLIN: That was resumed for the project as well, yes.

GAUDRON J: Yes.

MR PULLIN: Now, I had better move along, your Honours. The history is set out, as I say, in general terms, down to paragraph [15], 1969, so the resumptions are referred to. There was a town set aside and declared in 1961. Diversion dam completed in 1962. Resumptions took place. There was then the implementation in 1969 of what is called the second stage, by the construction of the main dam 50 kilometres upstream. So that will give you some idea of the scale of this map, if you know that there is 50 kilometres between the diversion dam wall and the wall of the main dam. Then there was extensions to Packsaddle and Ivanhoe Plains and the need to protect the catchment area - it is mentioned at line 20 on page - well, it is in paragraph [13]:

steps to protect the catchment area of the main dam from silt and pollution and to commence re-generation of areas badly eroded by pastoral activities surrounding the main dam. The main dam was completed in 1971 and . . . the whole of the Argyle Downs pastoral lease -

was acquired - and that is the area which is light blue, so the Argyle pastoral lease is all that is pale blue - and a small area of freehold land, that was resumed, and here is a reference to the size of Lake Argyle. It "covers an area of 700 square kilometres" and "may spread over 2000 square kilometres" at the time of maximum flood. There is also an Ord electric power station constructed near the main dam in 1996 and that reticulates power across to Wyndham, which is way off to the Cambridge Gulf area, to Kununurra and down to the Argyle Diamond Mine, and then there is a reference to what the original idea was, for cotton, and then that failed, and then there is various things there now.

It is a very large project, tourism contributing 30 million to a place that had not existed as an entity in this way, that is, the town was created and all the tourist resort is really a product of the creation of the scheme. If I could then go to paragraph [396] and just indicate what you will find there and in the following paragraphs. In short, and just speaking to these paragraphs, the process of proclamation of a district, of the resumption of pastoral lease lands and resumptions other than the Public Works Act resumptions, we say, is all a marking out by the Crown of an area which is going to be the subject of a public work.

So the process of resumption of the pastoral leases under section 109 of the Land Act, which says that land the subject of a pastoral lease may be resumed - originally we were arguing that that extinguished itself. We have abandoned that ground on instructions and we now treat that as a marking out of the area which was needed for the Ord Project and as it progressed, so there was more and more marking out until in the end this whole area had been marked out. The Packsaddle area, which is the part marked 1.8 and the little khaki-coloured area, part of that was the subject of a resumption under the Public Works Act in 1972 and then in 1975.

We say that resumption worked an extinguishment of native title because it vested fee simple in the Crown and the Full Court so found. Justice Lee found it did not. Then in relation to that area, there is an issue about the Racial Discrimination Act in relation to the 1975 resumption, which is put up against us in ground (13) of the Ward appellants' ground of appeal, but I will get to those in due course.

GLEESON CJ: Now, when you say that this area was marked for the Ord River Project, do you say that the whole of the coloured area is now used for the Ord River Project?

MR PULLIN: Yes, we do, and that is the findings of the Full Court and we say unchallengeable at this level and unchallenged other than during - if you read the submissions - but there is no ground challenging any finding of fact that is made by the Full Court about the Ord Project.

GLEESON CJ: Let me take an example. How is the Fourth Farm Area now used in respect of the Ord River Project?

MR PULLIN: The use is commenced by - one can see some blue lines extending into it as it starts to extend up internally. In fact, they were not the subject of claim because as soon as it had actually been the used the claim was not made against it, so if you see the blue line crosshatching down to the point - I can only hold it up and show it. In this pink coloured area at the top there is a sort of a section, a finger going up into that pink. That is now farm area which is all irrigated farm area and the crosshatched blue line that comes down from the right strikes it and then does not actually continue through it because where it has actually been farmed no claim was made.

GLEESON CJ: But my question to you is, what is the use that has been made of the crosshatched area with the words "VACANT CROWN LAND"?

MR PULLIN: The area which has been marked out that is not farming at the moment in those areas.

GLEESON CJ: My question to you is, how is that area used in connection with the Ord River Project?

MR PULLIN: It is available for further expansion, as each farm grows. It is a brick-by-brick argument that is being put against us. They say, "Well, that is not being used. It is still bush if you go there". But, in fact, the area was set aside, it was said to be reasonable, there is no suggestion it was not reasonable, and the first brick has been laid, if you like.

GLEESON CJ: Where do we find the finding of fact in relation to that?

MR PULLIN: I do not know about that particular area but as we go through it we may find it.

GLEESON CJ: Let me ask in relation to another area: how does the cerise area, the southern most part of the claim area, or the determination area, used in connection with the Ord River Project? Is some of it actually under water?

MR PULLIN: Some of it is under water and the rest of it is used as protection for the catchment to try and make sure that the trees regenerate and to prevent the enormous silt load which is referred to in the judgment, and there is findings made about that. We say it is not possible to say, "Well, the public works has got to consist of a line drawn around the water because, first, that will shift backwards and forwards. You have to draw a line around it". A line was drawn around it. The Full Court found it was reasonable. No one suggested that it was an unreasonable amount and all we have now against us in ground (10), the so-called buffer zone, is to say, "Well, look, all this stuff around the lake is just buffer zone and there is no extinguishment of native title there".

GLEESON CJ: Is there some relationship between the coloured area on this map and the boundaries of the Ord River Project? Is the Ord River Project something that has boundaries?

MR PULLIN: Yes, it is this. It is all this coloured area, your Honour.

GLEESON CJ: Where do we find the boundaries created?

MR PULLIN: By the resumptions. For example, the blue area - when they said, "Look we need to build the dam. We are going to create a big lake. People are on this property farming, or running cattle. We will have to resume it". The boundaries of Argyle Station are all this blue area. So, they said, "We will acquire that". In fact, that was by bargain and sale. We say that then marked out the area that had been set aside for the Ord Project, all the blue area. Having done that they then constructed the dam and sure enough the bricks - in this case liquid bricks - started to spread out as the water banked up behind the dam and the areas that are not actually - when you go there and say, "There is just bush around the edge of the dam" well, it is, in the same way that the trees are up in the front of the High Court here, but it does not mean - - -

HAYNE J: But the boundary that was chosen owed more to the history of what had previously been Argyle Station than anything to do with the dam, did it not?

MR PULLIN: But my submission is that this Court cannot get into that debate and start second-guessing the findings when there is no ground of appeal, and it is only in submissions that the Court is being asked by the Ward appellants to say, "Look, we'd like the Court to say the actual bush bit is not being used".

HAYNE J: There is an undistributed middle, it seems to me, in your argument about this question of leave. The undistributed middle is that there are some general grounds of appeal which if they are right may be thought to have certain factual consequences.

MR PULLIN: But not in this area. In fact, the principles which are said to be wrong do not seem to touch upon this idea of appropriation and use by government, by the Crown. We do not see that as one of even the general principles. This has just sneaked in because during the course of the special leave somebody said, "Can we have the buffer zone one?". The buffer zone one was granted and added to the list, which was originally 17E, and what has now happened is that there has been an extension of that. Really when you look at the mapping of what is said to be the buffer zone, it is all of the Ord Project area except for the lakes and tiny little bits. We have mapped it and we have asked the other side for particulars. We said, "Well, what are you saying?", and they say, "Well, really everything except the water and the dam walls", and a few other things.

HAYNE J: But if you are right in saying that the appellants fail in their challenges to principle, if you are right in saying that there is no challenge for facts, the appellants lose on this aspect, do they not?

MR PULLIN: It saves the Ord Project, your Honour, if the Full Court decision stands.

HAYNE J: That is a political answer, Mr Pullin, "It saves the Ord Project". The order that would be made by this Court is appeal dismissed, would it not?

MR PULLIN: Not entirely, your Honour, because there are issues about the rest of the determination area, and quite a lot, I am afraid.

GLEESON CJ: What do you mean by the expression "the rest of the determination area"?

MR PULLIN: All the area that is not the Ord Project.

GLEESON CJ: In other words, you mean the uncoloured portion of the determination area?

MR PULLIN: Uncoloured on this map. This is just showing the Ord Project. The rest of the crosshatching - - -

GLEESON CJ: Uncoloured on this map, yes. You said that by bargain and sale the Crown acquired the land coloured blue, is that right?

MR PULLIN: Yes.

GLEESON CJ: What title did the Crown acquire by bargain and sale?

MR PULLIN: It acquired the pastoral lease. What they did was purchase the pastoral lease off the owners of the Argyle Station pastoral lease.

HAYNE J: What was the legal transaction? It does not sound much like a bargain and sale.

MR PULLIN: It was a contract to purchase the - for consideration.

GLEESON CJ: Is there a finding about that?

MR PULLIN: Yes.

GLEESON CJ: What paragraph?

MR PULLIN: There is a reference to it in [396]:

"bargain and sale" acquisition of the Argyle Downs pastoral lease.

But there is further reference to it as we go through, your Honour.

CALLINAN J: Mr Pullin, I asked a couple of days ago whether there is an administering authority or a board in respect of the Ord Project. Can you answer that question for me?

MR PULLIN: Yes, there is no board in which all of this is vested. The vesting of all the land is in either the Crown or the Minister, where there is a resumption, "for the purposes of the Ord Irrigation Project", I think is the expression used - - -

CALLINAN J: Who administers the project? There would be a great deal of administration, would there not?

MR PULLIN: Yes.

CALLINAN J: Who issues the irrigation licences?

MR PULLIN: There is a water board who issues licences and rate notices and - water corporation is the body, but the land is not vested in the water corporation.

CALLINAN J: I am still interested in what the board does and what the board's powers and authorities are, because they might give rise to an operational inconsistency, might they not? At some stage, can we be referred to and provided with, if we do not have it, an Act under which that board operates, and some details about that board itself?

MR PULLIN: Yes. Can we do that by Friday, your Honour?

CALLINAN J: I must say, it would be more convenient to have it next week, whilst these matters are being debated.

MR PULLIN: We will see what we can do, your Honour. We will find the legislation, I have no doubt, but - we can do it, your Honour, I am told, earlier than Friday.

HAYNE J: It exemplifies the difficulty into which we will get, if there is not precision in the submissions. "Bargain and sale" is an expression the Full Court used. They put it in inverted commas. "Bargain and sale", in relation to a pastoral lease, seems to me not to be an expression of particularly apposite legal content. Now, at some point, can we have some precise submission that might give us some help in trying to write a set of reasons for judgment?

MR PULLIN: Your Honour, can I say this, that, in the paragraphs we are going to cover, 396 to 443, if I spent time on each of the items, I would never get through this within a week. But what we can do, and might offer the Court, if this is a helpful suggestion, is that we photocopy these pages of the judgment and actually write the exhibit reference and where one can find the document, if any particular judge would like to go to the document, because members of the Court may know that the appeal books and the books of materials are a tiny fraction of all the exhibits that are here in this Court. One has put into the volumes what everybody thinks they might need, and what the Court might need, but I cannot say that every reference that one will find in these very detailed findings will be in the papers that are sitting in Court at the moment.

GLEESON CJ: Yes, but I have to say that, if you just look at this map - - -

MR PULLIN: Yes.

GLEESON CJ: - - - the question that was asked, that is to say, "what is the title that the Crown acquired to the area covered in blue?" is hardly one that could be described as way up on the margin of the case.

MR PULLIN: I can deal with that, your Honour. We can say that the lake, without taking the time to go to it - because I just do not have the time to do it - the blue area was purchased by negotiation between the owners and the government, and they actually purchased under an agreement of sale signed on 23 November 1970.

GAUDRON J: Purchased what?

MR PULLIN: Purchased pastoral leases, as though I went to a pastoral lease and said, "Could I buy that pastoral lease", and they purchased it.

GAUDRON J: So the Crown's title then became exactly the same as that of the previous pastoral holder?

MR PULLIN: Yes, and we do not argue for extinguishment, you will realise.

GAUDRON J: I do not know. There is a lot I do not realise.

GLEESON CJ: Does that mean that the Crown was both lessor and lessee?

MR PULLIN: Your Honour, I agree, it seems an odd track - - -

CALLINAN J: The term of years would merge in the reversion, would it not?

MR PULLIN: If we are arguing for extinguishment by that act, we would have to get into all that. We are saying that what they did was to acquire the pastoral lease. The legal consequences of that odd transaction do not matter, for the purpose of this case, in our submission. Your Honours may completely disagree with me. But we are not arguing that that transaction extinguished native title. What we are saying is that the Crown had to mark out this area, and the way they did it was not just draw on a map where they wanted it, in this shape. They said, "There are third party interests here. We will have to get it off them, and then we will mark them out and use them." And they have marked out the - - -

GAUDRON J: But did you not say that the transactions themselves were the marking out?

MR PULLIN: Yes.

GAUDRON J: That is an interesting concept.

MR PULLIN: Yes. Then as they went in the northern area, as they needed portions for the immediate needs, they would say, "Right, well, we need the Ivanhoe Station", which is a large section that takes in - Ivanhoe is actually shown on this map, you can see Ivanhoe, that was Ivanhoe Station, you can see the dotted line showing Ivanhoe - and as they wanted more and more out of Ivanhoe Station, they did it by dribs and drabs rather than acquiring the whole lot. But they certainly needed the whole lot for Lake Argyle.

GAUDRON J: Now, you said they acquired? They resumed, they accepted surrenders? What was it?

MR PULLIN: Well, there are a number of things, your Honour. First, they resumed under section 109 in relation to portions of the Ivanhoe lease, and in relation to Packsaddle, which is 1.8, they went to the Public Works Act and they acquired that land under the Public Works Act as a result of which an estate in fee simple vested in the Crown in relation to those areas. We say in relation to those areas which are coloured khaki, there was complete extinguishment on the principles in Fejo.

GLEESON CJ: Is there a ground of appeal relating to that area?

MR PULLIN: Yes, the Ward appellants in ground (12) challenge the conclusion that that extinguished and they have ground (13) which says there is some discrimination by reference to the Racial Discrimination Act. We do not know what it is; we try and guess what the discrimination is. Justice Gaudron was trying to find out what it might be the other day, what is the discriminatory aspect. We are going to argue it on the basis we can guess what they might be saying and then try and knock down that argument. But we say it is not clear what the discriminatory aspect is, but there is a ground, ground (13).

GAUDRON J: You will address section 10 as well when you come to that?

MR PULLIN: Yes, I will, your Honour, certainly. Can I then just indicate to the Court what is set out from [396] on. There is the history of the implementation of the project, there is a reference to "successive resumptions" and to "the `bargain and sale' acquisition" and the resumptions of the parcel of land and the court says "see below" because, in the end, they analyse all of this and give details about precisely what happened. They then mention again what actually happened so there is a combination of, we say, marking out and then some use which brings about complete extinction.

Paragraph [397] mentions that:

pursuant to s 27(5) of the Rights in Water and Irrigation Act (WA) -

the Act is in the materials before the Court -

it was declared that Pt III of that Act applied -

and -

under s 28 of the Rights in Water and Irrigation Act 1903 by Order in Council the Ord Irrigation District ( the District) was constituted. The District proclaimed covered the land intended to be irrigated during the first stage of the Ord Project, the diversion dam and levies, a pumping station, and two miles of the diversion dam storage (Lake Kununurra) closest to the dam wall. The District was extended in 1965 . . . was extended again in 1973 to include all areas in Western Australia planned to be irrigated under the Ord Project, the whole of the former Argyle Downs pastoral lease, the area of freehold land on which the Argyle Downs homestead was located, and the whole of the Ord River catchment area upstream of the main dam. Pursuant to s 27(4) of the Rights in Water and Irrigation Act, every river, stream, water course, lagoon, lake, swamp or marsh within the boundaries of the District became subject to Pt III of the Act.

And as soon as that applied, the court has set out the provisions in Part III. I do not have time to read all of that. We say this is more marking out of the area by this process of proclamation of the district, the Ord Irrigation District. There was an argument by the State that the proclamation extinguished. That was dismissed; we do not pursue that. Then there is a reference to section 4 of the Rights in Water and Irrigation Act, which is an example of a provision which vests powers of control and management to enable the Crown to discharge the powers and functions arising under the Act. So there is no challenge about that; it is just part of the story. And there is a reference to rights that were abolished as a result of the application of Part III, which is dealt with in [401]. Then there is a reference to arguments that were put up and dismissed and not pursued.

Down at [405], the Court said this:

We consider that the application of Part III of the Rights in Water and Irrigation Act to parts of the claim area which occurred when the Ord Irrigation District was proclaimed, and later extended, did not have the effect of wholly extinguishing native title.

We challenge that in a ground of appeal, but it is an additional ground of appeal; it is not necessary to the Ord Project, and I really do not want to get into that now, because I really have to cover the Ord Project first, rather than finding other reasons to support the court's conclusion.

At [406] is also the subject of our contention 15, where we say that the by-laws which prohibited trespassing within fenced-off areas and other restraints on:

camping and lighting of fires.....interference with flora, or the shooting -

Our contention 15 is that, that is another basis for finding that there was an extinguishment of all those rights, but, once again, it is in addition to and not necessarily part of any discussion about the effect of the Ord Project. Then the court deals with the:

Proclamation of Townsite of Kununurra

and the fact that they formed:

part of the implementation of the Ord Project

because you had to have a Townsite for the project. That is covered in [407]. There is a reference again to the three stages and a bit more precision about it. [409] the second stage - and the map should help with that. [410] - now this is quite important to this buffer-zone argument:

All these components of the Ord Project were included in initial plans.....Areas resumed took account of such diverse factors as the need for buffer zones against spray drift, control of erosion and flooding on lands above the irrigation areas, weed control, the need for high land for stock in the wet, the progressive expansion of the irrigation areas, the management of human activity around and below the dams and on the banks of the lakes, and the control of stock and erosion in the catchment areas.....12 million tons of material were being eroded from the.....Ord River catchment area each year. The yearly silt load of the River was approximately one-eighth of the anticipated capacity of the proposed diversion dam. The protection and regeneration programs led to the resumption of pastoral land in the catchment area. Planning issues in relation to the township required consideration of issues relating to sewage disposal, power reticulation, community living and recreation areas and so on.

And then there is a reference to the colourful description by the Alligator appellants, which is picked up indicating that this is a large project imposing:

a completely new order onto the landscape.....involving engineering solutions applied on a very large scale.

And then in [411] we actually have the incremental steps with considerable precision, and this is where the Court might be assisted by us writing against each of these steps a reference to the document that actually brought about the resumption of the areas and, as I say, none of the resumptions do we say extinguish native title save for the Packsaddle resumptions where there was a resumption under the Public Works Act and a vesting of fee simple. So I do not have time to read all of that history, but there it is in considerable detail.

Over on page 265 of the judgment, you will see that each of the above resumptions which are listed in detail occurred under section 109 of the Land Act. The Court has that section. Then there are other resumptions which are discussed just above paragraph [412]. There is the bargain and sale transaction referred to; when it was dated. There was a transfer recorded on the certificate of title. It was not governed by section 109. Then there is the resumption of the Lissadell and Texas Downs stations, which are these pieces at the bottom in pinkish colour, cerise.

Then we have the two Packsaddle resumptions which are the specific subject, and the Court might like to note that those two resumptions in [72] and [75] are the subjects of grounds (12) and (13) of the Ward appellants' ground of appeal, one saying that that vesting of the fee simple in the Crown under the Public Works Act did not extinguish native title and ground (13) saying that there is some unspecified discrimination which should bring about some invalidity. The court notes that they were under the Public Works Act and then there is the proclamation of the second extension to the Ord Irrigation District. So, what we will do is we will photocopy this and put a reference to where you will find the documents.

Then there is discussion about section 109 in considerable detail and the provision is actually referred to and described. As I say, previously there was a ground from us saying that that worked in extinguishment. That is now not pursued but once again we repeat that it provides the boundaries for the Ord Project as well as the Ord Irrigation District proclamation which leads to the conclusion that the court recognised that a reasonable area of land was set aside and extinguishment occurred upon the first of the works, although they do not need to go into that detail because the project had been completed anyway. But it is put up against us that because there were some trees in some parts, that there was no extinction in those areas. We say that that is not good reasoning or the law should not bring about that result.

GAUDRON J: There may be an intermediate position, namely that the facts have to be found, because it is not entirely clear to me that the Full Court concerned itself with facts as to actual use or the area of land reasonably incidental - I am just postulating tests that might commend themselves - or that Justice Lee found any facts.

MR PULLIN: Well, we, with respect, disagree with that, your Honour. Jumping forward to [436], the court has made this very clear finding:

With very minor exceptions the whole of the land resumed from the Argyle pastoral lease is the subject of the claim. The areas around the main dam -

et cetera -

are plainly integral parts of the Ord Project. So too is Lake Argyle itself -

It is mentioned that:

There are some areas in the north-east, north-west and west . . . where the relationship between the land and the operation of the Ord Project is not so readily apparent.

GAUDRON J: Exactly. That is the problem.

MR PULLIN: The finding is, your Honour, that is not challenged:

Nevertheless, most of this land falls within the catchment area of either Lake Argyle or Lake Kununurra - - -

GAUDRON J: So be it. That may not be the relevant test. That is what I am putting to you.

MR PULLIN: But it is not a ground of appeal, your Honour.

GAUDRON J: Well, the relevant test is clearly a ground of appeal.

MR PULLIN: I agree with that, your Honour.

GAUDRON J: The facts may not, and I am just saying, one may get to the position where, upon identification of the correct test, you find that a fact-finding exercise has to be engaged in by someone else.

MR PULLIN: We submit that you cannot get any more detailed than this. This is a very extensive analysis of the setting aside of the project area and a very detailed - - -

GAUDRON J: Yes, but you put the weight on the setting aside and the laying of one brick which in some way can be seen to have some connection with the whole of the land. This one brick, I take it, being, for example, the construction of something in relation to the holding dam.

MR PULLIN: Can I just say, your Honour, there is no difference between us. If this Court says that the test is that when you have set aside the land and the test is not if it is reasonable for the requirements and when you start the extinguishment, that you have to actually look at it on a brick-by-brick basis, of course it will have to go back.

GAUDRON J: But the Full Court did not say it is reasonable for the requirements.

MR PULLIN: They did, your Honour.

GAUDRON J: They said, "Nevertheless, it falls within the catchment area". I would have thought that it was at least arguable, so far as the catchment area is concerned, that you might have to look to whether as a matter of fact or a matter of intention - it may be intention - that the Aboriginal interests could not or should not coexist.

MR PULLIN: There is no debate. If the Court says that the test is brick-by-brick, it will have to go back.

GAUDRON J: It is not necessarily brick-by-brick either.

MR PULLIN: I do not see any alternative, your Honour. Either it is a setting aside in the - - -

GAUDRON J: All right, perhaps it is not your responsibility to see any alternative, although it might assist the Court if you did consider them.

MR PULLIN: I do consider the comments that your Honour makes, of course, but - - -

GAUDRON J: You see, for example, the test proposed by Justice Brennan in Mabo was not that which you are now propounding. I am not sure that any other test has been propounded by anybody else in this Court in relation to this sort of activity. If one looks to the statute and uses the statute to inform the common law as to the test that should be applied, that does not seem to be what you are propounding either.

MR PULLIN: It is, your Honour, with respect. That is what we are saying.

GAUDRON J: What, you are saying marking out of what?

MR PULLIN: Without going through all these paragraphs again, your Honour, I can only describe it - - -

GAUDRON J: No, but what do you say the test is? You must be able to articulate that in a sentence or two.

MR PULLIN: Yes. By any means, your Honour; by marking out, by - - -

GAUDRON J: By any means?

MR PULLIN: By a myriad of means, which might be by an administrative mark in an office. In this case the marking out is by taking the boundaries of the areas resumed or purchased.

GAUDRON J: Marking out of what?

MR PULLIN: Of land for the Ord Project.

GAUDRON J: What is it about for the Ord Project that makes the marking out of the land sufficient then to extinguish native title? I dare say that at many, many, many times in this country's history somebody has put a mark on a map somewhere - let it be for a town site in western New South Wales where no town has ever been established. Unless you say the putting of the mark on the map for the town site constitutes extinguishment of native title - - -

MR PULLIN: We do not say that, your Honour. I have not said that this morning.

GAUDRON J: No, that is what I am saying. I have asked you for a sentence marking out by any means, which you then go on to describe, of land for the Ord River Project.

MR PULLIN: Yes.

GAUDRON J: I am now asking you what it is in the words "for the Ord River Project" that makes it any different from the marking out for a township in western New South Wales when that township never comes into existence.

MR PULLIN: No, difference, your Honour.

GAUDRON J: No difference. So, your test is the mere marking out?

MR PULLIN: No, I have not said that at any stage, your Honour.

GAUDRON J: Well, I am lost.

MR PULLIN: It is exactly what was said by Mabo and it was said that the marking out is not enough; it is the marking out and use.

GAUDRON J: All right, and use.

MR PULLIN: As to "use" I can do no better than the Federal Parliament which in, say, section 23C says:

the extinguishment is taken to have happened when the construction or establishment of the public work began.

GAUDRON J: Yes, but then you come, do you not, to - I think it is 251D to which Justice Hayne drew your attention this morning.

HAYNE J: Section 251D:

is or was necessary for -

factual inquiry, I would have thought, or -

incidental to -

again, a large element of fact -

construction -

I understand that -

establishment -

I understand that -

or operation -

Now, it seems to me that what is lying under these submissions is an assertion that these areas are necessary for or incidental to operation of a public work, itself a defined term, being in this case, I suspect, only, either construction of a fixture or construction of a major earthwork. Now, is that what it comes to?

MR PULLIN: If you were looking at the Act, your Honour - and we will put in our submissions - we say that that is not the test, and what we are looking at is the common law test.

GAUDRON J: Can we go back to what is the test if it is not - - -

MR PULLIN: I cannot do any better than what the High Court has said which is the "setting aside and use". It is as simple as that.

GAUDRON J: But then that is exactly what we do not have the findings about.

MR PULLIN: Your Honour, we have the fullest findings here.

GAUDRON J: We have a finding that it falls within the catchment area and now - - -

MR PULLIN: That is exactly right, your Honour.

GAUDRON J: - - - also falls within the irrigation district.

MR PULLIN: I would add, your Honour, at paragraph [422] the Court has actually said this:

The areas were selected at a time well before it was appreciated that Aboriginal people may have native title claims over the land concerned, and it cannot be suggested that excessive areas were claimed for the ulterior purpose of defeating native title.

HAYNE J: But it is the next sentence that you would also depend on, is it not:

reasonably required . . . has been applied and used for that purpose.

MR PULLIN: Exactly right, your Honour.

CALLINAN J: You would really need to establish some bad faith in the acquisition or the setting aside, would you not, before you could say that it was not reasonably required or necessary or incidental, something like what was found in Ex parte Toohey or Prentice v Brisbane City Council is another case. You have to look to - - -

MR PULLIN: Yes.

CALLINAN J: There is no evidence to that effect, is there, that there is any ultra vires acquisition or setting aside or bad faith?

MR PULLIN: No, and courts might have to be a bit more vigilant nowadays, now that there is native title issue involved, although that issue has probably disappeared with the protections that are contained within the Native Title Act, but if it were not for that courts would have to scrutinise what was going on to make sure that when a government said, "We want to set aside land for the High Court" that they did not set aside 50,000 hectares and put the building in the middle of the area.

CALLINAN J: It would be a matter of particular judgment at the time, too, as to how much beyond the ordinarily inundated area you wanted, whether you were going to make provision for a 1 in 50 or a 1 in 100 years rainfall, and that is a matter of judgment, and minds might differ on it, but if somebody reasonably makes that judgment it can hardly be challenged afterwards.

MR PULLIN: In this case, your Honour, the judgment of the Federal Court is that a reasonable amount of land was set aside for the purposes and it has been used. In applying the very simple test of setting aside and use, those findings have been made, and any attempt to argue about some portions of it in ground (10), which we have, which is the contentious ground (10), we say the answer to that is the finding that the whole area was necessary and has extinguished.

GAUDRON J: I want to detour you for a little while. The test. All of this seems to come out of what Justice Brennan said in Mabo.

MR PULLIN: Yes, it does, your Honour.

GUMMOW J: Well, then where did Justice Brennan get it from?

GAUDRON J: Where his Honour talked about actual use. That does not seem to me to be what the Full Court was talking about, actual use, because they talk about "the land is used in a relevant sense," whatever that means, for the project referring to Wheat v Lacon and Newcastle City Council [422].

MR PULLIN: Is this the Full Court judgment, your Honour?

GAUDRON J: I hope so. It says so.

MR PULLIN: Which part? I can not see it, your Honour.

GAUDRON J: Paragraph [422]. But what I want to ask is why, in any event, that is the test. It may be a useful indication of something else, but is not the ultimate test in a situation where you have Crown land, and the supposition on which we are proceeding is the Crown is holding radical title burdened by native title and there was nothing else for the moment. We could forget about the pastoral leases at this stage because it seems, unless you go into it, we are to assume that the effect of all that was to bring about a situation where the Crown had a radical title burdened by native title.

But is not the test whether by executive act there is done something, and this seems to be where the clear and plain intention should come in, not in relation to statute, but by executive act there is something that manifests a clear and plain intention to use the land in a way inconsistent with the existence of native title rights?

GUMMOW J: Is not that what Justice Brennan is saying in Wik, 187 CLR, 185 which is the passage all this comes from, I think. It is Category 3, is it?

MR PULLIN: It is Category 3, your Honour.

GUMMOW J: Yes. The paragraph that follows - - -

MR PULLIN: Sorry, your Honour, which page was that?

GUMMOW J: Page 85.

MR PULLIN: Yes.

GUMMOW J:

Such an intention is not to be collected . . . from the nature of the executive act and the power supporting it.

MR PULLIN: Are you saying page 85, your Honour, of Mabo?

GUMMOW J: Of Wik.

MR PULLIN: Of Wik, yes. Well, that is where the - - -

GUMMOW J: That is where it comes from, is it not?

MR PULLIN: Yes, it is, your Honour. It also comes from Mabo because his Honour also mentioned the schoolhouse and the courthouse and the public building example in Mabo.

GUMMOW J: Yes, quite, but Wik is later.

MR PULLIN: I agree with that, your Honour. I am looking at the passage where there is a reference to:

A law or executive act which, though it creates no rights in third parties -

no, it is not that one, I am sorry. The third category, yes.

HAYNE J: Lines 2 and 3 at 85, explained by the paragraphs that follow.

MR PULLIN: It is a passage that - I do not know that there is any difference - I mean, we agree entirely. We cannot do anything else, except apply the obiter of the two places where anything is said about public works.

GUMMOW J: Go on to 86, the schoolhouse is back there. First paragraph you see on page 86, about line 12.

MR PULLIN: It is rather intention like - - -

GUMMOW J: But just to detain you for a minute. You look at footnote (342)?

MR PULLIN: I am just trying to get my marked-up copy, your Honour.

GUMMOW J: Still on Wik.

MR PULLIN: Sorry, your Honour, that is page - - -

GUMMOW J: If you go to page 86 in Wik, the schoolhouse comes back as an example, you see, about line 10 there. Then, it says, about line 14:

A mere reservation of the land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land - - -

et cetera, et cetera, and there is footnote reference to Williams, which is the New South Wales Government House Case and what they are talking about there is the notion of set apart and dedicated to public use or purpose, I think. That all comes out of the colonial wastelands legislation in the 1840s.

MR PULLIN: Yes. There is a deal of debate - Mr Pettit will deal with this - about the difference between setting - and we really want to make the distinction between - - -

GUMMOW J: Setting apart and dedicating.

MR PULLIN: - - - the setting apart - - -

GUMMOW J: Or dedicating.

MR PULLIN: Well, there is that issue as well. So, in other words, setting apart is one thing, dedicating is another, and, in fact, reserving for a public purpose has to be taken account of as well, where there is a vesting for a public purpose. But no one is suggesting that when the colony was founded and the store was put up, that that did not convert that area of the land under radical title into full beneficial ownership.

GUMMOW J: I am not worried about that. I am worried about how these ideas are the source of your idea of marking out, that is all.

MR PULLIN: Yes. It is a setting aside, your Honour - - -

GAUDRON J: Marking out and, you say, or setting aside it is - - -

MR PULLIN: Yes.

GAUDRON J: What Justice Brennan was talking about is actual use for some purpose inconsistent with the continued enjoyment of native title. He is not talking about incidents there; he is talking about actual facts and the capacity, I would have thought, of native title holders to continue to enjoy their rights, not as a matter of fact, and when you get down to the cerise areas - I mean, you may be able to point to something in the Water Act, but leave that aside for the moment, because we are only dealing with the setting aside and use. Why does one not actually go to these cerise areas and, perhaps, even to some areas in the blue area, and say, "What is the actual use?" And when you come to actual use, it may be, may it not, that you will have to look to whether the use is one that comes - - -

MR PULLIN: Could I answer that, your Honour?

HAYNE J: It is active or passive use.

MR PULLIN: Yes.

GAUDRON J: Yes.

HAYNE J: And passive use perhaps highlights the sorts of point that I suspect Justice Gaudron and I, and perhaps others, are struggling with. If you say, "We use this land as a catchment area", that I can understand in that the water drains off into the lake and you can, as a matter of English language, say that, "This land is used as the catchment area for this lake". But it is use of a different kind and quality from erecting a building, having people pass and re-pass, and so on, and in the case of the passive use of land, which some at least of this might be, it might invite attention consistent with what Justice Brennan was saying. It might invite attention to, "Well, we use this land, we use it for the catchment area and to keep it pure we keep everyone out".

MR PULLIN: Can I suggest, your Honour - I mean, we are in the area where there is no binding authority on this. This is the case to decide public works issues, the third category. This is the case that will provide ratio, so we are debating possible outcomes. But can I submit that that is going to be a very bad result for Australia because you take a school ground - - -

GAUDRON J: I think we are getting into the politics of this now.

MR PULLIN: I am talking about certainty of law, your Honour. Can I just finish in relation to Justice Hayne? Take a school ground. Now, the school building is built, an area is set aside. There is an area for some playgrounds and there is some portion of it which is some natural bush, retained to provide a bit of shelter from wind. If the test is that you set aside and look at land which has not actually got some human activity taking place on it, well, every time that there is a public work where you cannot actually find a building on it, will involve a court case. Can I give an example of it here?

HAYNE J: Not at all. The school example perhaps highlights it. The bureaucrat sits in the office and says, "I will take out section 6 for possible public school 1234". Come the day somebody goes out and starts building public school 1234, they put up a building, they mark out playgrounds, they delimit the area of use commonly by fencing, and then you know what the area concerned is but you know what it is by reference to what actually has happened and what is done on the area. But with passive use land other questions may intrude.

MR PULLIN: Well, then that is a different test, that is, you have to put something on the boundary with a sign on it or a fence post that says that is the marking out. Marking out is not enough if you resume an area of land which has surveyed boundaries. The test must be, then - - -

GAUDRON J: There may very well be a difference between marking out on a map, marking out or setting aside by resumptions, as you rely on here, and actually marking out on the ground because if you go back to what was said by Chief Justice Brennan in Mabo, and what I was putting to you earlier, you are looking at executive acts, this is what you are looking at, and you are looking to discern in relation to the executive act an intention to assert a right over the land that is inconsistent with the existence of native title. The acts in question are that from which the intention is to be discovered, and if that is the way the matter is to be approached, then it is a different process from that which was engaged in by the majority in the Full Court.

MR PULLIN: Well, your Honour, the Full Court has given the fullest possible reasons, in my submission, not only in relation to the marking out or setting aside, but the use and whether you are under the Native Title Act, whether the Court finally concludes that the Native Title Act now applies or whether one looks at the common law, they have made the fullest possible findings in relation to this case, and there is nothing else for a court to do. They have done it in considerable detail, they have considered the possibility of too much land being set aside and, in my submission, the decision of the Full Court is unimpeachable on the law as stated at the moment.

GLEESON CJ: Mr Pullin, could you just satisfy my curiosity in one respect. How does it come about that when the Crown resumed the Packsaddle Farm Area in 1972, the area became vested in the Crown in fee simple, and when it resumed the Lissadell and Texas Downs Pastoral Leases Area in 1972 a different result followed?

MR PULLIN: Well, because, section 109, which was the Lissadell resumption, said that the land with - section 109 says that:

the Governor may resume . . . any part of the land comprised in any pastoral lease -

Now, we did have a ground of appeal, now abandoned, which suggested that that extinguished. Our instructions are not to pursue that, so we do not argue for extinguishment under section 109. But in the Public Works Act section 18, that says that upon resumption there vests an estate in fee simple in the Crown, and we say that does. We are instructed to pursue that as an extinguishing event.

GLEESON CJ: But that did not apply to Lissadell and Texas Downs, because a different power of resumption was exercised.

MR PULLIN: Section 109, which reads:

The Governor may resume, enter upon, and dispose of the whole or any part of the land comprised in any pastoral lease -

and that does not have the reference to the vesting of an estate in fee simple. So the argument against us, which is no longer in contention, and the Full Court's finding is, that that did not actually work an extinguishment.

GUMMOW J: But you still rely on that resumption power which talked about fee simple?

MR PULLIN: Yes.

GAUDRON J: Well, that statute specifically provided and invested it in fee simple free from all other estates, interests, et cetera, as I recollect it.

MR PULLIN: Yes. Can I say, your Honours, that in our original submissions under tab H, there is a schedule showing all of the resumptions covered in our contention ground 10. In fact, I will have to - yes, let me just say that that is a reflection of our original instructions, which was to argue that section 109 worked an extinguishment. We have amended contention 10, so that we are not now arguing for extinguishment under section 109, but are arguing for extinguishment in relation to those resumptions which are the last - well, the two shown on page 2 and 3, which are land resumption, Rights in Water and Irrigation Act and Public Works Act, and it is the Public Works Act relevantly which vests the estate in fee simple, and we have given the exhibit number and the page number in the documents to those resumption documents.

GLEESON CJ: In this first map under tab B, the words "Lake Argyle" appear within an area that is mainly in the blue and partly in the cerise but is bounded by an irregular line. Is the irregular line the usual water level?

MR PULLIN: You can draw lines at any time of the year and they will be different lines, your Honour. As the summer goes through, as the rains come, in a year where you get very heavy rains it will expand to greater - - -

GLEESON CJ: Is that the maximum extent of it or the minimum extent of it, or was it the extent of it on the day that somebody drew the line?

MR PULLIN: We think it is a day when a survey was done to produce maps which the Department of Land Administration - - -

GLEESON CJ: What I wanted to ask you is this. Has anybody every drawn a line marking the maximum extent of it?

MR PULLIN: I am told there is one. It could only be maximum up till now because next year we may get a 300-year flood and with greenhouse it might cover all of it - - -

GLEESON CJ: Well, I would have thought that might be a material consideration in the factual area that has been opened up with you in the last few minutes.

MR PULLIN: Your Honour, there is a map - I do not know how helpful it is. But in the Wilkin Report, which is exhibit 21(a), there is an attempt to delineate the different edges of the lake given certain circumstances and also shows the depth at different times.

GLEESON CJ: But no one has ever attempted to relate that to the boundaries of the project area?

MR PULLIN: No, your Honour. Well, certainly, the appellants never attempted to show that. We have all just worked on various maps - well, that is the one in the Wilkin Report which shows the different levels that relate at different times. My guess, your Honour, is that this is an indication of the maximum on the Wilkin Report which is a map prepared as at that date - I do not know. Sometime in the past, it might not be in recent times.

GLEESON CJ: I notice, for example, that the eastern most boundary of the lake comes very close to the border with the Northern Territory.

MR PULLIN: Yes, it does.

GLEESON CJ: The project, I take it, does not extend into the Northern Territory.

MR PULLIN: No. As I say, on the western side one has really the Carr Boyd Ranges dropping down into the lake all up and down the western sides.

GLEESON CJ: Where do we see that?

MR PULLIN: You do not see it on there, your Honour. In fact, you can see them on this map. You can see the contours of the pictorial designation of the Carr Boyd Ranges and you will see the edge of the lake running up into gullies, I suppose, that come down out of the Carr Boyd Ranges on the left-hand side. I will have to finish the Ord Project. I am told that the Wilkin report is in volume 4 of the book of materials that is behind the members of the Court and the map is in a fold-out on page 835, your Honours.

GLEESON CJ: Thank you.

MR PULLIN: Could I very quickly deal with the issue about the 1972 resumption of Packsaddle under the Pubic Works Act. Unfortunately, our submissions in relation to that issue were eliminated from our submissions in those changes that were made and handed up on the first day and in our bundle of errata there is a page restoring our submissions in relation to contention (10). They are quite short. They just say that in relation to both resumptions there was the vesting in the Crown of an estate in fee simple under section 18 of the Public Works Act and that worked an extinction. So, I do not want to say any more about it. That would answer the ground which is in the Ward appellants' notice of appeal, if that is correct. It is ground (12).

Then the Ward appellants go in, in ground (13), to say this. This is the Racial Discrimination Act:

Having found that the resumption in December 1975 -

because there is one in 1972 and one in 1975, they are only concerned about 1975. They say:

Having found that the resumption in December 1975 made under Rights in Water and Irrigation Act and the Public Works Act (WA) extinguished native title, the majority erred in law in failing to consider the application of the Racial Discrimination Act 1975 (Cth) (RDA) under the operation of the Native Title Act 1993 (Cth) (NTA)

The court should have -

(a) found that as such resumption occurred in December 1975 following the commencement of the RDA, the resumption was

(i) invalid by reason of being in breach of s 10 of the RDA and was accordingly,

(ii) ineffective to extinguish native title and was,

(iii) validated as a "category D past act -

Now, section 10 of the RDA deals with legislation. Section 9 deals with executive acts. Of course, the resumption is not a piece of legislation, so I am trying to construct the argument that they might be trying to run. It may be they are really talking about section 9, some discrimination under section 9. They do not mention discriminatory under section 9. Perhaps if they ran that argument, I am afraid this is the only way I can do it because I cannot see how section 10 has anything to do with it, with respect. But if they are saying under section 9 there is discrimination upon resumption under the executive act of resumption because they did not get a notice, we say that does not matter because the compensation rights which arise upon vesting of the estate in fee simple which is given to everyone who loses an interest in the land, is a right that they had by reason of the Public Works Act 1933 and there was a limitation period for making the claim, but there is power to extend it in the Minister.

Now if, in fact, they say, "Yes, but the process discriminated against Aborigines because they did not get a notice under section 17", which is really only a notice provision; it does not affect the rights to compensation, that was entirely inadvertent because there was no one realising that there was any native title interest holders. If that is so, that is just an accidental omission. It is rather like a person who says, "I did not get a notice; therefore, the resumption process is flawed and I am a person of the Jewish faith and because I am a person of the Jewish faith, I am going to say that the whole resumption process was invalid". It was not directed to the person because they were of the Jewish faith, it is just they did not get a notice, and that is just an ordinary attack on the process that has nothing to do with the Racial Discrimination Act.

GAUDRON J: That certainly does not over-intellectualise the notion of discrimination, Mr Pullin. It may oversimplify it to excess.

MR PULLIN: It may do, your Honour, but I am having to make up an argument in order to try and find anything in this ground at all.

GAUDRON J: Yes.

MR PULLIN: That is the best I can do and I do not want to spend too much time on it. Your Honours, I see the time, but I would now like to move on to - - -

GAUDRON J: Well, I mean, again that does pose a difficulty though. If that has to be decided, what happens?

MR PULLIN: Well, if the Court said, "Well, we do not agree with that. There was discrimination. Because they were Aborigines and did not get a notice, it was discriminatory under section 9", well, section 10 tops up their rights and gives them the right to compensation anyway.

GAUDRON J: Yes, but it did not give them notice. It gave them a right to notice which they did not get, and I think section 10 probably does top up their rights, although you say - - -

MR PULLIN: Yes, it is a compensation, yes.

GAUDRON J: One then has to look into the Public Works Act, and is it the Water Rights Act?

MR PULLIN: Just the Public Works Act, relevantly, yes.

GAUDRON J: Just the Public Works Act, to see if the absence of notice has the effect of rendering the resumption voidable or has no consequence at all.

CALLINAN J: Do the notice provisions make any provision for a kind of substituted service or necessity to leave it at a last known address or anything of that kind? You might be able to answer that after lunch.

MR PULLIN: There is publication in the Government Gazette, and I think the owners or people with interest are entitled to be served with a notice as well, but that does not trigger the compensation rights which some legislation does that if you get served, you then have a compensation right. This does not. The compensation right - - -

CALLINAN J: What I am interested in, and it may be an inconvenient question, but what were the practicalities of giving notice at the time, and you need not answer it now, but, perhaps, you can answer it later.

MR PULLIN: I know it was publication in the Government Gazette, your Honour, and I think there was requirement for notice as well on people with interest in the land.

CALLINAN J: Estates or interest, but unless there is a registered address somehow or some means of knowing that matter, how can you give a notice?

MR PULLIN: Well, I agree with that, your Honour, that there may be difficulties, but practical difficulties I do not think is the issue here.

CALLINAN J: No, but it might go to the question of discrimination. If the provisions are nondiscriminatory with respect to people who cannot readily be identified, then there may not be an racial discrimination.

MR PULLIN: Yes. Well, that is another argument, your Honour, but section 17 is the notice provision, and it is found at page 2,087 of the materials, and it provides for:

notice published in the Government Gazette -

and then:

(b) Before the publication of the notice . . . the Minister shall cause to be published in the Government Gazette a notice of intention to take or resume the land which notice is to include -

certain particulars. Then there is the notice; 30 days after notice there can be an objection and - - -

CALLINAN J: What about personal service or notice, is there a provision for that?

MR PULLIN: Yes, I think there is one. We will find, your Honour, and I will come back after lunch.

GLEESON CJ: All right, we will adjourn until 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Pullin.

MR PULLIN: Thank you, your Honour. Before I move on to pastoral leases, if I could answer Justice Callinan's question. Section 17 requires a notice in the Government Gazette of intention to take land; there is then an obligation to publish in the newspaper; there is an obligation to serve notices on owners and occupiers, but, of course, our argument is that the Ward appellants were not occupiers, in view of the Full Court's finding that all the pastoral leases were true leases, conferring exclusive possession. But, if the Court disagrees on that point, then there may be a point there about no service of notice, but the rights to compensation do not flow from the notice at all. So they would have received newspaper notice and Government Gazette notice.

GAUDRON J: Are we not on a red herring, in any event, on this issue? That is to say, that, let us assume, with respect to the Ben Ward ground 13, that there was some invalidity by reason of the Racial Discrimination Act. Does that not simply have the effect that they are entitled to compensation?

MR PULLIN: Yes.

GAUDRON J: And was their claim in this case not simply a claim for determination of native title, and, therefore, if they have a claim for compensation, it is to be made in some separate proceeding - - -

MR PULLIN: That would be outside, yes. That is right.

GAUDRON J: Yes.

MR PULLIN: They would have to apply for an extension of time with the Minister - - -

GAUDRON J: Well, no, if it is an application for compensation under the Native Title Act.

MR PULLIN: There was not any claim to that effect, your Honour.

GAUDRON J: That is right, so we are embarked on a red herring, are we not?

MR PULLIN: That is right. Can I move on to pastoral leases and can I go straight to the summary of our position and work back from that.

GLEESON CJ: Now, before you get into the principles, I would just like to understand the significance of these issues, having regard to the arguments you have already advanced. Assuming the arguments you have been advancing so far are correct what is the significance of the arguments you are about to come to?

MR PULLIN: If we are correct so far there is still all of the area on the mudflats - well, not the mudflats because they were not the subject of pastoral leases but areas to the west in the area that I am just roughly indicating were within pastoral lease areas. I think, in fact, all of the areas under the Cambridge Gulf, and even a part of what appears to be the mudflats was all subject.

GLEESON CJ: All right, now, just for the record, you are referring to the first map under tab B, and you are demonstrating portions of the hatched area, although by no means all of the hatched area which is outside the coloured areas.

MR PULLIN: Yes.

GLEESON CJ: One of the areas you are indicating, the subject of pastoral leases, is directly to the west of Second Farm and the other area is to the north of Fourth Farm.

MR PULLIN: Yes. It is all the area, your Honour, exactly to the west, as you have described, and a little way up the Cambridge Gulf but the precise detail, in our submission, it does not matter. The fact is, though, that there was pastoral lease over the area that we have mentioned.

GLEESON CJ: So, your argument has nothing to do with the pastoral leases that were originally over the land that is now the subject of the Ord Project?

MR PULLIN: It will not if the Court dismisses any appeal from the Ord extinguishment.

GLEESON CJ: However, if your argument about the Ord River Project that you have so far addressed is wrong, then it will be necessary to consider it in relation to that area also, the argument you are about to come to in relation to pastoral leases.

MR PULLIN: Yes. Could I take the Court to page 23 of our submissions and the five paragraphs that are now 69A.1 to A.5 and if the Court could also have the Full Court's reasons so that I can just read a couple of small portions. You will see that we say that the majority concluded that pastoral leases in Western Australia conferred exclusive possession save that there was an exception in favour of Aborigines. So if I can take you to those two paragraphs, [290], that is paragraph [290] of the Full Court's reasons.

CALLINAN J: Do you accept the Full Court's reasoning in relation to the exception or reservation? Their Honours held that it was a full reservation.

MR PULLIN: Yes.

CALLINAN J: Is that in issue then? Has any other party taken that up, do you know?

MR PULLIN: Yes, the Ward appellants deny any extinguishment at all with respect to pastoral leases.

CALLINAN J: Nobody is urging that that is other than a true reservation of the kind described by Justice Windeyer.

MR PULLIN: Well, in my understanding of the meaning of "reservation" and "exception", it would be more accurate to describe it at an exception, a holding back, rather than a reservation, as I understand it, means a grant of a new interest that did not exist before, whereas an exception is a holding back, but the words are often interchanged.

CALLINAN J: But the Full Court, the majority referred to that statement by Justice Windeyer and I think Justice Gummow also referred to it in Wik.

MR PULLIN: Yes, exactly.

CALLINAN J: What is your position on that?

MR PULLIN: Well we agree with the Full Court's reasoning which - in these two paragraphs we will understand it, and they are our submissions because we submit that their reasoning is correct. So in [290] the majority said:

We accept that the form of the pastoral lease . . . are indications in favour of the conclusion that a pastoral lease was to be in the nature of a demise of the land carrying with it all the rights which would normally be enjoyed by a common law lessee, save for the restrictions on those rights imposed by the exceptions, reservations -

et cetera.

GUMMOW J: Now, what does that mean?

MR PULLIN: Well, they explain that, your Honour. They deal with that. They refer to:

The reservations in this case in favour of Aboriginal people, however, plainly indicate that in relation to Aboriginal people exercising the reserved rights, a pastoral lessee does not have a right of exclusive possession.

That is, as against them. In the same way as a lease for a tavern allows the - may require access to the general public for the purpose of keeping the tavern running as a tavern. So it is the same sort of provision for the right to come on to inspect in the lessor; but go away from that to a provision in the lease that says you must operate the land as a tavern and you are obliged to keep it open and allow the public access. So we say it is that kind of provision.

GUMMOW J: It would seem to me there are three questions - more than three, but three questions. Are they saying this notion of exclusive possession really in this universe of discourse means possession to the exclusion of the landlord, or are they saying that these leases conferred rights to the exclusion of the Crown? Did they deal with that question?'

MR PULLIN: Against everyone except Aboriginal people, and the other reservations, just as the lessor has the right to go on.

GUMMOW J: Yes, I know that, but did they deal with the specific statutory provisions and indicate that they conferred rights adverse to the Crown?

MR PULLIN: They do not actually say that, your Honour, other than here.

GUMMOW J: No, exactly. Point two, do they deal with the question of interesse termini? In other words, do these statutory creatures require entry or do they come into force without entry? Was there entry in all these cases?

MR PULLIN: The answer is that it is exactly the same as Queensland. It has been abolished but only recently.

GUMMOW J: Yes, by 1969, I think, by your Property Law Act.

MR PULLIN: That is right. Before that there was the same provision as in Queensland, so there was no need to enter, but that applied to all leases. So, if that reasoning were true, there would be no such thing as a lease even in the provisions that deal with what you might call ordinary leases conferring exclusive possession. We say that cannot be right. We say that is just a statutory modification. I know it was part of the reasoning, but we would submit that where your Honour dealt with that aspect in relation to Wik, it was one of many indications and that alone cannot bring about the result because it means we would not have any leases in Western Australia at all, even - - -

GUMMOW J: I am just trying to find out what they said. Thirdly, do they say there was an estate in reversion created in the Crown under these statutes?

MR PULLIN: I do not know that they - - -

GUMMOW J: Or did they not talk about it?

MR PULLIN: In the form itself there was a reference to the re-entry and the reversion. We will come to some of the forms.

GUMMOW J: All right. We are talking very technical real property law.

MR PULLIN: Yes.

GUMMOW J: We cannot get around it with generalities.

MR PULLIN: No, I agree with that, your Honour. This is [290] and then if you go across to [328] - so they have been dealing with the statutory reservation in favour of Aborigines under section 106, which we need to look at which was a right of Aborigines after 1934 to go on any unenclosed or unimproved land, which gave them the right to exercise limited rights, what I will call subsistence rights, and it was a conferral of a right on all Aborigines not just native title holders, the Aboriginals of the state. So in [328] they say:

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

That is the reasoning, and we submit that that reasoning is correct, and that is what we say in 69A.1. But, of course, in the areas where there was no enclosure or no improvement - we deal with that in 69A.2 - we say the pastoralist had some rights under the pastoral lease, and pretty extensive rights - and we deal with Justice Callinan's point in the course of our submissions - and maybe they are so extensive as to leave very little else, but let us assume there is something left after the comparison of those rights, that we say that Aborigines continue to exercise native title rights coincident with the terms of the statutory right of access under section 106(2) and then the court dealt with a solution to this clash, that the members of the Court have talked about, in circumstances where, if the pastoral lease in these areas is not working a complete extinguishment of native title, which we do not argue for - this is the access areas - the court then dealt with this at paragraph [312] and dealt with it at some length and said, well, we have two sets of rights and one gets that by reference to ordinary common law cases about rights to cut timber on a land.

You can have a clash there, I suppose. If somebody says, "I want to go and cut the timber", and somebody says, "I don't think you should", well, there is a resolution of that at common law, which is the principles of reasonable user, which is summarised after the reference to the cases at [315], or reference to other authorities. Guidance on the principles of reasonable user may be found in cases there mentioned, and so opposite to lines 10 and 15 in paragraph [312]:

To the extent that the grants brought about a situation where Aboriginal people on the one hand, and pastoral lessees on the other, had coexisting rights to be present on the land for their respective purposes, the law required that those rights be exercised by each party reasonably, having regard to the interests of the other. Each was entitled to exercise their respective rights, subject to the requirement of reasonable user.

And we say that is a satisfactory resolution of the clash of rights until the point was reached where, as Parliament had definitely decided there should be, that there would be no rights in Aboriginal people once there was enclosure or improvement. So they had thought carefully about it and provided for the clash and said when the rights of the Aboriginal people would come to an end.

I might just add, very quickly, that the Commonwealth says it cannot be right that third parties can bring about an extinguishment by putting a fence - let us not get into a debate about what that means - but, by enclosing the land, that is an action of a third party, not of government or of the State - or the Crown, I am sorry, and we answer that by saying, it is not the fact that they do it; it is the fact that they were authorised to do it by the Parliament that is the important point. If they were authorised to enclose, when they enclose they do it with the authority of the Crown.

So that deals with the points down to 69A.3, and then 69A.4, I just need to clarify that it is dealing only with the position after 1934, because there was a change of the access provision in 1934, which I will deal with in a moment, and after 1934, upon enclosure or improvement native title rights were extinguished, and I should add, by reason of the grant of exclusive possession under the lease, and you can find that conclusion at [319] and [328], which I have already referred to, and again at [317]. There was another reference I found to it in [317], where they talk about the position prior to 1933, but that is just the access areas were slightly differently defined or differently defined.

That is their conclusion but it really comes back to looking at the legislation, as was done in Wik. What I wanted to do is quickly run through the history of the legislation. We have prepared a schedule. Can I take the Court to the materials that were handed up in a bundle yesterday and in it there is a document entitled:

LAND LEGISLATION AND DESPATCHES CONCERNING LAND IN WESTERN AUSTRALIA

Now, if the Court keeps this with volume 1 of the legislation - in think, in fact, it is volumes 1 and 2 because we go into volume 2 - this will help because in the right-hand side entitled "column" the "WA Leg 1" is a reference to WA legislation volume 1 - I am sorry, volumes, and the number is the page - not the volume number, but the page number and every page is numbered so that this gives a page reference. We identify all of the legislation between 1828 - legislation and proclamations and some other things - and we go right through until 1963 and we try and identify the critical aspects in relation to the powers that were conferred to make grants and what they were and what the access provisions were at different times.

There is a couple of things I wanted to draw to the attention of the Court in relation to this list. The first is, if you take the first entry which is the:

Colonial Office Circular providing regulations and instructions -

that were given when settlement occurred and there was a reference to the right to:

new settlers would receive "grants of land in fee simple".

Now, there was nothing more complicated than that. Now, that could only have brought in all concepts of the common law in relation to the meaning of that grant. That continued, I think, until the first reference to a lease comes on 28 August 1829, so this was in very short time. You will see that there was a reference to the power to grant, "a `lease' of 21 years". Now, that is all it said, "lease" so, clearly, if the word "lease" is used we cannot say that that means a bundle of statutory rights in the form of a Wik bundle of rights, it must mean common law lease.

We say that, in short, the situation never changes, there is a continuum - although there is some more identification of forms, it never gets very complicated and it is certainly not the case, as there was apparently in Queensland and noted by the judges in that case, that with leases alone there were 70 different forms. There was nothing like that and we will come to that in due course.

In 1844, over the page, you will see a type of anti-squatter provision that you will be familiar with in New South Wales but it did not seem to be a major problem, other than, apparently there was some pasturing of cattle on Crown land without a licence and that was made an offence. Then there is the wastelands legislation 1846 which authorised the Western Australian's to - or:

lawful for Her Majesty -

in Western Australia:

to:

"Demise for any term of years not exceeding 14 to any person any wasteland of the Crown ... or to grant to any person a licence -

So, the distinction between leases and licences was obviously understood by the draftsman. Then, over on the third page on 11 February 1848 we come to the series of despatches where the western colony and eastern colony seem to have gone their different ways, but the references I have obtained to these despatches all come from Justice Drummond in the Wik decision. If you go there all of these things are set out in detail.

So, on 11 February 1848, Earl Grey was expressing his concern to see that Aborigines were not being excluded from the land. There is a puzzling - the date order is right here. The next item is a reference to an "Advice in Officials of the Colonial Office", and I am not certain whether the date is right. It is right according to Justice Drummond. But what happened in New South Wales is shown on 11 October 1848. Governor FitzRoy obviously referred the subject to the law officers and they said you cannot put a condition like that in the leases. So there was resistance in New South Wales. And in 1849, on 18 July, there was an Order in Council in New South Wales which made no express reference to the inclusion in favour of access for Aborigines.

You will note that Justice Drummond comments that Earl Grey's final position is curious, given the forcefulness of his earlier views, which were expressed on 11 February. Then, on 10 February, there was some rebuking by Earl Grey of Governor FitzRoy about some aspect of Aboriginal affairs. We have put a note in the comment that, from here on, you see the parting company of the history in the east and the history in the west, because in 1850, on 22 March, we see an Order in Council for Western Australia which contains two things: first, a pastoral lease "shall signify a lease", and, in clause 7, there was a provision that:

Nothing contained in any pastoral lease shall prevent the Aboriginal natives of this Colony from entering upon the lands comprised therein and seeking their subsistence therefrom in their accustomed manner - - -

GUMMOW J: If you just go back to tab 8 for a minute - that is the wastelands legislation - the definition in section IX - that is 9 & 10 Victoria, chapter 104, under tab 8. The definition of "Waste Lands of the Crown", it says it excludes lands which have been "dedicated or set apart for some public Use". That would seem to be the first time that expression enters into the law in Western Australia.

MR PULLIN: I am sorry, I was gaining my copy, and I am just not sure what your Honour is referring to. I have tab 8.

GUMMOW J: Tab 8.

MR PULLIN: Yes. Which section was it?

GUMMOW J: Section IX, line 4, definition of "Waste Lands of the Crown".

MR PULLIN: Yes, I believe so, your Honour.

GUMMOW J: That is the first time that phrase comes in.

MR PULLIN: Yes. One of the problems in Wik was that, the approach having been taken that regard had to be had for the interests of Aboriginal people, and a recognition that it would just be absurd to produce law in Australia that suggested that they were trespassers in their own lands - well, that is a Mabo view. But here, and bearing in mind, of course, the fact that governments can extinguish rights and can exclude Aborigines from the land, then we see, in Western Australia, a balancing of the interests in this legislation. This really is the legislation from then on. It is in different forms.

The reference to the condition, which is 22 March 1850, clause 7, which said they could enter upon the lands, was very general at the beginning. So, in fact, as it started, there was no restriction on the right of Aboriginal natives from entering upon any part of the pastoral lease, because it was a provision in this legislation.

I should mention one other thing which will be put against me, I am sure, perhaps as a result of the judgment of Justice Gummow in the Wik decision, which is that there was an apparent confusion between pastoral leases and licences - you will see on 1 November 1851. Not a confusion but, in fact, an apparent treatment of licences as though they were leases and the conferral of "the exclusive right of occupancy". But that is a mistake which was corrected in the very next provision. I have not noted it but that provision for the exclusive right of occupancy of the licences was taken out. Probably someone was rapped over the knuckles for not observing the difference between the two concepts.

Then 14 February 1860 you will see over we have a note in it that pastoral leases and licences are now treated separately. I think it is in that provision actually that we see it, and there was no access provision in pastoral licences, from the foot of that note on 14 February 1860, because, of course, being a licence only it was unnecessary. A licence just conferred a right to go on the land to the pastoral licensee and that said nothing about the rights of others so there was not an access provision. It looks as though everyone is following ordinary principles of the common law in relation to land law.

Then in 1870 there was representative government. There was the establishment of a legislative council. Then 20 March 1872, there was some land regulations but not dealing with the area that we are yet concerned with but it still had the provision concerning access for "Aboriginal natives of the Colony". Then the 1878 land regulations, the same provision. Then 14 September 1880, "the discovery of the Kimberley Region" took place about that time and immediately there was some legislation to cover the situation and these "regulations were proclaimed", and once again there was an "Aboriginal access provision".

Now, in our first submissions there is a tab - under tab F of our first submissions, could I correct a mistake on the first page. It said "Leases issued under Land Regulations . . . proclaimed 29 November 1980". That, of course, should be 1880. Your Honour the Chief Justice will probably ask if there is a picture of these pastoral leases. It was very difficult because you had to do time slices to show what was happening and you could ask what the position was at one date and it would be different from a few years later. All I think the Court needs to know is that there were pastoral leases over the whole of the plain area, apart from the mudflats area that I have indicated, and this lists under which legislation they were granted.

So that if one needs to analyse the regulations then for all of the first lot you are looking at the 1880 regulations; then the 1882 regulations for the next lot; then the 1887 ones and then the 1898 Land Act, which was the first of the legislation after responsible government. Then there is some more under some amendment Acts which I do not think change the 1898 Act provisions or form and then, finally, those granted under section 96 of the Land Act.

Can I just explain on the last list that those which were issued under section 114 of the Land Act Amendment Act 1963 , the system was that the legislation provided for a common expiry date for all pastoral leases under the Act, so the 1933 Act, and I forget what the date was - so there is some date that was specified but then there was legislation in 1963 that allowed for the surrender and a regrant that took them all through until 2015. So there was a common expiry date.

But we have tried to identify the relevant provisions in this schedule and, as you can see, it would be impossible to go through each and every one of these pieces of legislation, but we say that if you seize upon any one of them, there is a limited reference to the tenure grants that are open. There is a provision for fee simple, leases, licences and this thing called "the permit to occupy or a licence pending the grant of fee simple". Because of the procedure, I suppose, being too long between the travelling distance between north and south, the position was that there was a permit to occupy which gave full rights which have already been discussed in the course of this case so far and the meatworks out to the west has one of these permits to occupy which, in fact, did not result in a grant, but gave all the rights that would have existed, in our submission.

Now, can I just ask the Court to note, as against the 1898 Land Act 1898 which is on page 8, there are, on my count, 34 forms scheduled at the back. It is just in the comment column, the members of the Court might like to note it. There were 34 scheduled forms, 18 of them were application forms, 16 were forms of grant, 2 of them for fee simple, 6 of them for leases including pastoral leases, 2 for licences and 4 for permits to occupy or licences pending grant of fee simple. So the only tenure or licence provisions were fee simple, leases, permits and licences. We say that this is nothing like the Queensland situation where really there was a breakdown of common law concepts.

HAYNE J: Do we need to know anything about where these kinds of transaction fitted in more generally with Western Australia land law? I assume, for example, there is no relevant intersection with Torrens Systems and the like? Do we need to be troubled by any of those question?

MR PULLIN: Well, in a sense, yes, your Honour, but a in a very limited way. That is, that when one goes to the Transfer of Land Act which was an 1890 piece of legislation, it too refers to leases and fee simple and the like. Now, if anything that is said about leases and fee simple here, we submit that there was no difference between the treatment of those expressions from one piece of legislation to the other. So that if the mere reference to a lease can somehow be said not to confer an ordinary full right of exclusive possession, then it might be that there is, by a side wind, an attack on all of the land legislation in Western Australia.

Now, we submit that concern would only be had in that regard if, in fact, the Court thought that this legislation was other than the use of ordinary common law language and we submit that it is just not open - there is no point, you would have to draw a line at some point. You could not draw it under the first one, that is 5 December 1828 or the first reference to a lease and say, "Well, up until then it was muddied". We say there is no point where you can rule a line across and say the concepts had departed from common law concepts and language. So that may assist the Court, that schedule.

In fact, we do have maps. If the Court just quickly goes to volume 3, the book of materials and here is an example at page 712 and following and it does no more than show a picture of the pastoral leases in existence as at the period 1881 to 1884. Then following it there are time slices. There are others which show the pastoral leases that follow through to the end.

The last one is on page 751 which the Court might find useful. In fact, 1994, which is on page 751, is the current position and you can see what has been chopped out of the area is really the area that was described as the Ord Project Area. Your Honours can see that with Lake Argyle shown. What was taken out of Ivanhoe is shown and your Honours can see Lissadell at the bottom where some of Lissadell was clearly chopped out for the purpose of the project. So, if you go back a bit earlier, for example, if you go back to 743, the period between 1933 and 1938 is shown. The next one is 1975, but by then, of course, Argyle Station has been resumed. So that is the attempt to provide pictures of all of that.

In the rest of the submissions, may it please the Court, if you can go back to page 12 of our outline of submissions, if I can just explain what we try to do in these submissions - - -

GUMMOW J: Just before you leave all this, Mr Pullin, at what stage was the imperial Act - - -

MR PULLIN: The wastelands legislation, your Honour?

GUMMOW J: Yes, the imperial Act that authorised the Governor to make regulations dealing with disposition of wastelands. Was that repealed on the grant of full representative government in 1889?

MR PULLIN: I am just looking whether we have that in there, your Honour. Certainly working a bit - - -

GUMMOW J: There just seems to be a constitutional gap at the moment. You have lots of regulations by the Governor and they are all under the imperial Act, then at some stage we switch to statutes of the Western Australian colony and State.

MR PULLIN: The switching to statutes came - there are really two stages. One is the 1870 creation of the Legislative Council.

GUMMOW J: Yes, but the imperial Parliament did not let them deal with wastelands.

MR PULLIN: No, it all went back for assent, approval. Then you will see in 1890 there was the enabling Act passed with the effect that the Constitution Act of 1889 became law vesting the management and control of the Crown in the legislature.

GUMMOW J: Do we have that?

KIRBY J: Is that case concerning the reservation in the 1890 Act still pending before the Court? There was a case where special leave, I think, was granted.

MR PULLIN: About the 1 per cent?

KIRBY J: Yes.

MR PULLIN: Yes, it is on next month, I think, your Honour.

KIRBY J: That awaits hearing?

GUMMOW J: Do we have the enabling Act in these materials?

MR PULLIN: I am sorry, your Honour?

GUMMOW J: Do we have the text of the enabling Act of 1890 in these materials? It is in your schedule.

MR PULLIN: If I have a page reference against it - no, I do not seem to. I think I added that in. We will provide that, your Honour. That is not in the bundle.

GUMMOW J: Then we jump to the Land Act of 1898, which is the first statute.

MR PULLIN: Yes, relevant statute.

GAUDRON J: Does that contain a definition of "wastelands of the Crown"?

MR PULLIN: It is Crown lands by then. Wastelands disappears and Crown lands is the definition.

GUMMOW J: But then there is a definition of Crown - there is some definition instead.

MR PULLIN: Yes, it is not wastelands any longer, it is Crown lands definition.

GUMMOW J: It is called Crown lands.

GAUDRON J: But the definition refers to the wastelands of the Crown?

MR PULLIN: Yes, I can not recall that. Is that so? Do you have it there, your Honour?

GAUDRON J: I may be looking at the wrong thing. I am looking at section 3 of Land Act, the definition of "Crown Lands", page 3, and it says it means "the wastelands of the Crown".

MR PULLIN: Yes. Thank you, your Honour.

GUMMOW J: Yes, and, again, it says

not for the time being reserved for or dedicated to any public purpose or set apart - - -

MR PULLIN: We do have the Constitution Act 1898 in 1890 which is out - I will check that, your Honour, and make sure you have both of the - - -

GUMMOW J: Yes, do not stop now.

MR PULLIN: Going back to the outline of submission at page 12, what we do at the beginning of this area is have our bleat again about what it is that the Ward appellants are allowed to argue, but I do not need to go into that again.

The land legislation which is referred to on page 13, I have described that and there are some more submissions I need not go into. On page 15 is some more descriptive material referring to the pastoral lease legislation in Western Australia, and why we say it is a lease. We have copies of the pastoral leases in the books of materials. Now, I do not know that I have time to take the Court - in fact, I think I should take the Court to one of them. Let us look at, for example, a pastoral lease under the 1933 Act, and that is at book of materials, volume 5, pages 1168.

GUMMOW J: It seems to me we have got to get to grips with the Land Act and then with the Land Act 1933 .

MR PULLIN: That is true, your Honour. Those two, if you concentrate on those two, the amending acts in between do not really matter because they are amendments which really just allow for the surrender and regrant of pastoral leases.

If you have 1165 you will see a pastoral lease in the form described. No, in fact, this is under 1898. Did I say 1165 as a reference?

GLEESON CJ: 1168.

MR PULLIN: Could I take the Court to 1165. I want to point out an important difference between the two Acts. 1165 is an 1898 pastoral lease in the form prescribed in the 1898 legislation. If you go to the back in the schedules, this is in accordance with the form. I am afraid it is this close boilerplate, but you will see a reference to the Land Act 1898 in about three lines down after the writing "company limited." Then you will see the words:

by these present demise and lease unto the lessee the natural surface of the land.

Then there is an exception and reservation provision which lists certain reservations, and I suppose an argument could be put, "Well, they are very extensive", but we say that when summarised they are not great in number at all. But there are reservations which continue down to a point where you see the words:

and subject to any rights of the lessee . . . to occupy or to sell any other portion of the premises at any time and with a right of immediate entry; to depasture on the unenclosed or enclosed but otherwise unimproved portion of the demised premises.

And "any horses and cattle", et cetera, of the government. Then we get the reservation provision for Aborigines:

and full right to the Aboriginal natives of the said state at all times to enter upon any unenclosed or enclosed but otherwise unimproved part of the said demised premises for the purpose of seeking their subsistence therefrom in their accustomed manner.

Now, if you turn over the tab to - and this is the one relating to Ivanhoe, so part of this was, in fact, renewed and eventually the one that was in existence at the time of resumption was under the 1933 Act, but this is one that is sort of in the claimed area. If you then go over to the Pastoral Lease under the next tab at 1168, there is no Aboriginal access provision in the form of the lease at all. Now there is a bit of a tale about this. What seems to have happened is that as it came up to the 1933 Act, the Parliament was deciding to re-enact the land legislation, and it seems that what was contemplated, they put in the Bill - the Aboriginal access provision was taken out of the form and shifted up into the Bill, which was then going to provide this access right as a statutory right.

When it went through Parliament in 1933, there were some amendments moved that took out that Aboriginal access provision and they forgot, or I think they probably all forgot, that they had taken out of the Pastoral Lease the access provision, because they thought it was going in the Act, and it then got left out of the Act for one year or so and then the government said, "Well, we did not intend to bring that result about", so they amended the Act in 1934 to bring back in the access provision, which had been left out, I think, by accident, and there was debate about what should go in and you can read the Hansard discussions, the second reading speech and the like, about the debate that took place, about what the form of the access provision was and, as a result of the government trying to get through the same access provision that we see in the 1898 provision, which was to let Aborigines on to both unenclosed, but even enclosed land, providing it had not been improved, and what happened was that section 106 was eventually passed, despite the best endeavours of the government at the time, to only allow access to areas that were not enclosed or not improved.

So you could actually have areas that were not enclosed, but improved, which there was no Aboriginal access right and if it was enclosed, they had no access right at all. So, it is a different form, but, nevertheless, still an access provision as a result of the compromise reached, despite the government's attempt to put through the same provision that was originally in the 1988 lease form, shifted up and given statutory form.

GUMMOW J: Mr Pullin, could I just go back to 1165. This instrument seems to have some connection to the Transfer of Land Act 1893 , if you look at the first line there.

MR PULLIN: It could be registered, I think, your Honour, is what that means.

GUMMOW J: Well the question is - that is right. These instruments get registered under that statute?

HAYNE J: What follows from it?

MR PULLIN: Well there is the indefeasibility provision; I think we have addressed that in writing somewhere; we have got a reference to it.

GUMMOW J: It may be important.

MR PULLIN: Yes. We can certainly see a sign of interest in something - I mean, there are lots of things to think of, your Honour, and we did put a reference in to the indefeasibility provision and we will certainly add something in writing in view of the expressions of interest on that point. But, I might add, that in Bodney v Westralia Airports Corporation Pty Ltd, Justice Lehane said that upon vesting - it was a slightly different point, but it is - of an estate in fee simple, after resumption that there was an extinguishment upon grant quite apart from any effect of the Transfer of Land Act 1900 indefeasibility provisions.

GUMMOW J: But is there any body of case law in Western Australia - just forgetting about native title - which deals with the significance for the pastoral lease system of their registration under the Torrens System?

MR PULLIN: My recollection is there is nothing specific about pastoral leases because we say that they are leases and they are just treated - there are provisions about - I think you cannot register a lease under three years and you may register one between three and five and, if you want protection under the Transfer of Land Act, then you must register if they are five years or more.

GUMMOW J: I am thinking about indefeasibility. There is a section in the New South Wales Real Property Act, section 43, I think.

MR PULLIN: They are slightly different but the same - I mean, the working of indefeasibility under the Torrens system is the same, no matter what the provision, although the provisions are slightly different. The question is whether it is one of the interests which it is free of. In other words, when you are registered, whether you are free of interest raises the question of the nature of the interests that have been talked about and defined, I suppose.

GUMMOW J: That is right.

MR PULLIN: Yes. We will provide something on that, your Honour.

GAUDRON J: At the same time could you check to see if any of the pastoral leases contained a right of purchase?

MR PULLIN: No, they did not. There was a conditional purchase lease, which was a different animal, which is the subject of one of he appeal grounds. I might mention immediately, in case I do not get to it, you will not find any submissions that we have made on the subject because we say that an application for special leave was made to appeal against the decision about conditional purchase leases and it was refused and somehow or other it has been written back into the grounds, but the analysis - - -

GUMMOW J: Justice Hayne draws my attention to section 68 of the Transfer of Land Act 1933 which is the standard form indefeasibility provision.

MR PULLIN: Yes, it is section 68. That is the provision.

HAYNE J: Free from encumbrances. Free from non-registered - - -

MR PULLIN: We have a reference to that in my submissions, your Honour.

HAYNE J: If it has nothing whatever to do with it, it has nothing whatever to do with it, but it is far from evident to me why it has nothing to do with it.

MR PULLIN: We are pleased to hear it, your Honour.

HAYNE J: Anyway, you run your case as you wish to.

MR PULLIN: No, we have a reference to that effect. It is a very slight reference, but, nevertheless, we say that that is the case, your Honour, that that would work an extinguishment itself. I am just checking on whether or not our instructions allow it, but it is a question of law and the Court is not interested in what my instructions are if it is a question of law.

GUMMOW J: I do not know about that.

MR PULLIN: I will have to check that, your Honour.

GUMMOW J: It seems to be a point of very great importance.

MR PULLIN: Yes. Now, having taken your Honours to an example of the pastoral lease legislation and the pastoral lease forms, we then on paragraph 16 deal with the general rule governing the interpretation of statutes, which the Court would be well familiar with, and we set out the usual suspects on that topic, page 16. Then under the heading, well, has Parliament understood and employed common law language and concepts respecting creation of property rights, and we say that it must be understood that the legislature at the time of the passing of the 1933 legislation, really even the 1898 legislation, we have quoted from a textbook.

It was clearly textbook law in Cole on Ejectment of 1857 that if a person was given a right of exclusive possession of land for a term, then the person was a lessee. That is quoted by Justice Windeyer in Radaich v Smith. Conversely, if there is a leasehold interest created and it is not, in fact, in reality, a licence then it will confer the right to exclusive possession and we set out the authorities - - -

GUMMOW J: Yes, but right to exclusive possession is not a "feel good" statement. It is something that translates itself into court process.

MR PULLIN: Yes, it is a right to exclude all others which is why the Full Court said - - -

GUMMOW J: Including the lessor.

MR PULLIN: Yes, and we say that that is so here, your Honour.

GAUDRON J: And to put in action for trespass.

MR PULLIN: Yes.

GUMMOW J: Yes, by an action for trespass.

MR PULLIN: And we do not have the provision that was in Queensland. Apparently, there, to provide for the fact, as the court thought, it was not a lease with no right to take the action, we do not have a provision like the Queensland provision. So if I can jump forward to - I should mention before I jump forward to paragraph 59, a lease will still be a lease even if it has exceptions and reservations - we quote the authorities; a limitation of the use of land to a particular purpose - we quote the authorities; and provision of access to the land to suit the classes of persons. Indeed, we say that such a provision indicates that exclusive possession is otherwise intended, otherwise you would not need the access provisions.

Then, on page 19, we say that there was no contrary intention to use the word "lease" in any other way than would be understood by a property lawyer which would involve the conferral of the right of exclusive possession. But, as the Full Court says, just to say that says nothing if, in fact, there is an exception in favour of Aborigines which is their reasoning, which is why they say the pastoral lease does not extinguish all native title upon grant but it does once the enclosure occurs or the improvement takes place and that is their reasoning.

CALLINAN J: Mr Pullin, what is the Western Australian Acts Interpretation Act say about marginal notes?

MR PULLIN: They are not part of the written law, your Honour, and nor are the section headings but the division headings are which is exactly the same as the Commonwealth legislation.

CALLINAN J: Thank you.

MR PULLIN: Now, we have quoted from the debates when the 1934 amendments were made which we say also is an indication of what Parliament intended, by the language used in the legislation, where you will see that there was close attention to the interests of Aboriginal people. Can I just draw to your attention something? If you do go to the Hansard pages, and they are in the materials, there is a mistake, either in what the Minister said or by the Hansard reporter, where "enclosed" is used as a word when "unenclosed" should be said, and "unenclosed" when "enclosed" should be said.

So if you look at what we have quoted in 64, you will see that the Minister said:

Originally, in fact since 1851, natives have had the right to enter upon any enclosed or unenclosed but otherwise unimproved parts of pastoral lease.

In fact, since that date, or about that date, it was "any unenclosed or enclosed but otherwise unimproved", and you will find that that mistake occurs when you are reading the debates. It occurs in a couple of places and a bit of a puzzle when you first come across it. But all that the debates reveal is that there was very close attention to the interests of Aborigines and that is why there was the debate and why there was the - one of the reasons for the amendment in 1934, to bring in the provision which had been left out when the 1933 Act was passed.

Then we go to the application of the law to these pastoral leases and look at the Wik decision. I will not have time to go through all of these points but in each case we identify the reasons given, or we think all of the reasons but there were a lot of them - the reasons given by the Judges in Wik who decided that the pastoral lease was not a lease and in each case, in 66.1 through to 66.9, we first set out what it was that was said and by whom in Wik as being the reasons why the Queensland pastoral leases were not leases conferring exclusive possession and say why that reasoning does not apply in Western Australia.

The Court might be interested in particular in what we say in 66.7 about the statutory provisions concerning penalties and occupation and mechanisms for those in unlawful occupation. I am afraid the type has gone wrong there, but there are not equivalent provisions in Western Australia. As I say, I just do not have the time to go through each and every one of those but if those submissions are read, your Honours will see that we say each of the reasons given by the members of the court would not be applicable in Western Australia.

They are the submissions concerning pastoral leases, your Honours. Could I quickly go to spiritual connection.

GUMMOW J: Where did you flag the Torrens Title point? You said it was mentioned.

MR PULLIN: It is not there. It is in our first set where we were arguing about the resumption of Argyle and we had a note in the old submissions, but that has gone because we took out the reference, so we will have to put it back in and expand on it, your Honour.

The spiritual connection argument, could I take the Court to paragraph [157] of the Full Court judgment. This is a paragraph which summarises the evidence that was led. I might add that there are really two aspects to the evidence given in the field. One lot is really evidence trying to identify the fact that there is a cultural group, a group of people, and so, for example, the first two dot points, they use Aboriginal names as well as European names, they have a subsection system or "skin" names, they have certain marriage rules, traditional ceremonial practices are followed, they have ritual knowledge and so on, they have stories. They are nothing to do with the actual use of the land; they are to do, in our submission, with the identification of the people. But we do have down at the last three dot points evidence about the kind of activities, that is fishing, hunting, gathering traditional foods, use of bush foods and bush medicine, and hunting and fishing referred to again.

So in summary, we say that the sort of rights that were established were those rights that are at least the dimension in the Native Title Act in section 225. Then if the Court goes to paragraphs [206] to [208], there is a reference to the type of determination that might be made in certain cases. We have in [208] the claim that was made, the right to exclusive possession, occupation, use and enjoyment, and that that was what his Honour said because of his Honour's view about what he should be doing based on his understanding of the law. Then [210]:

In cases where the evidence establishes that the nature and extent of rights and interests in relation to land enjoyed by an indigenous group are less than an exclusive right to possess . . . it will be necessary to sufficiently identify them.

So we say that there was no right of exclusive possession on the evidence, for all the reasons that I have given. We then go into the point that I now want to deal with specifically, which is the spiritual connection. If you go to [243] and [245], you will see what the court has said on the subject. Their Honours say at [243]:

Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people - - -

KIRBY J: Where are you reading from now? I am sorry, I have lost you.

MR PULLIN: Paragraph [243], your Honour.

KIRBY J: Thank you.

MR PULLIN: So they are saying that spiritual connection is enough, and actual physical presence might not exist. At [245] the court picks up the submission that there did have to be physical occupation - we would rather say "physical use". There is a reference to the notion of occupancy which we agree with, and this area must not be confused with the situation where an area of land is claimed by Aboriginal people. They say "This is our area" and we are not saying they have to put their foot on every piece of the area that they identify in the evidence, no more than a person steps in every square inch of their backyard. But this situation arises because what happens when these claims are made is that somebody in the Aboriginal Legal Service or the lawyers takes some instructions, and then there is a map drawn.

Now, in this case, it follows European boundaries. The Aboriginal evidence in this case identified areas of land, not all of which corresponded with the area which was actually drawn on the map by whoever prepared the application form. And there were some areas where, for example - and this raises a slightly different point but is the same problem and is a finding of fact that raises the issue - at [252], the court said:

The inundation of the areas by water -

That is the big expanse of Lake Argyle -

makes it impracticable to enjoy native title rights and interests in so far as they involve activities ordinarily carried out by physical presence on the land. However, by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land can be maintained. In our opinion, it was open - - -

HAYNE J: Is there here an elision of two separate questions: the question presented by 223(1)(a) and the question presented by 223(1)(b)? That there is an overlap between those I can readily acknowledge because both of them require reference to traditional law and custom, but do you say there is one or there are two questions posed by those paragraphs, one about rights and interests, the other about connection?

MR PULLIN: Well, (a) is the governing provision, because the rights and interests, that is, the native title rights and interests, have to be:

possessed under the traditional laws acknowledged, and the traditional customs observed - - -

by the particular group, and, "by those laws and customs", they must "have a connection with the land or waters".

HAYNE J: You speak of a "governing" provision, as though (b) is in explanation of (a) or amplification of it. What do you say is the relationship between (a) and (b), if any, in 223(1)?

MR PULLIN: Well, I am not quite sure that I am understanding the question correctly, your Honour.

HAYNE J: The subject of 223(1)(a) is "rights and interests", catch some rights and interests.

MR PULLIN: Yes.

HAYNE J: Section 223(1)(b), on its face, seemed to me, at first blush, to be talking of connection. It seemed, therefore, to be talking of a separate subject matter. Since both are subject matters deriving from traditional law and custom, then plainly there is at least identity of source, but are the subject matters the same or are the subject matters different?

MR PULLIN: Well, it perhaps comes from the reference in (1) before you get to (a), your Honour, which is the "in relation to land" point. That is the phrase that is used, so, in other words, that the rights and interests must be in relation to land and they must be "possessed under the traditional laws acknowledged, and the traditional customs" and "those laws and customs" must "have a connection with the land or waters". So that if, for example, the laws were laws relating to - - -

HAYNE J: No, the peoples must have the connection, I would have thought.

MR PULLIN: Yes, I agree with that, your Honour, yes.

HAYNE J: They must have that connection by the laws and customs.

MR PULLIN: Yes, you are quite right, your Honour, I agree with that, and the question is - - -

HAYNE J: The laws and customs may say that you have a connection with this land, the connection being spiritual.

MR PULLIN: I agree with that, your Honour.

HAYNE J: A separate area for inquiry seems to me to be, what are the rights and interests that you have in relation to this land with which you have this identified connection, namely, spiritual connection? But is there an error in that sequence of reasoning that I identify?

MR PULLIN: Well, your Honour, perhaps I can given an example of the sort of thing. Now, someone might say, "I am an Aboriginal person, I am a member of a group, and here are all the observances that we have that show that we are a group, and we hunt kangaroo". Now, that can be hunt kangaroo anywhere, anywhere in Australia. That would be something that they say they do, and so it would relate to the land. The kangaroos are on the land and so, therefore, they are the sorts of rights and interests that relate to the land. But you have to have some connection with the land - the particular people have to have a connection with a particular piece of land or water.

HAYNE J: Is the Full Court inquiring in the paragraphs you have taken us to about connection, or is it inquiring about rights and interests?

CALLINAN J: To add to that, what right and interest was found to exist following upon what the Full Court said in paragraph [253], which is maybe the same question, perhaps, as Justice Hayne is asking?

MR PULLIN: Yes.

CALLINAN J: But what is the actual right and interest or interests, because does the determination not need to define what the right or interest is? The requires that, does it not?

MR PULLIN: Yes, it does.

CALLINAN J: What is the right or interest that was found relative to paragraph [253]?

MR PULLIN: What was found was more limited than the determination. As you remember, the determination actually confers full rights to exclude everyone. The right to occupation of the land - - -

CALLINAN J: Was this the Full Court's determination, you say?

MR PULLIN: That is what Justice Lee did and what the Full Court did, but we complain about that because we say that [157] sets out in summary the findings that were made and so there are laws which have been identified which establish the existence of a community, but the actual customary activities were fishing, hunting, gathering traditional foods and, of course, there was the visiting of sites from place to place, which were identified. But the evidence about that use of the land is, of course, a long way short of conferring any right to exclude everyone from the land.

Therefore that is a different point though from the question about whether spiritual connection - and I agree with your Honour Justice Hayne that when we are looking at connection, we are going to have to decide what does the word mean, and if the Court says there has to be some physical connection, then spiritual connection is not enough; if the Court says connection means spiritual connection, that will be enough. But let me say what the consequences of that will be from the existing native title cases. We have a case pending in Western Australia, close to where the offshore oil rigs operate, and there is a flare out to the ocean. Now there is a Dreaming story developed about the flare and its significance. It happens to be outside of the area claimed, but if I were instructed in the case, you would say, well we had better draw the line around the flare, because that is a spiritual connection with the flare. There is another story that takes a Dreaming track through to, I think, Alice Springs. The line is only drawn around a small portion of Western Australia. In fact the flare is in the claim area, I am corrected.

CALLINAN J: Mr Pullin, let us assume a spiritual connection is demonstrated, and let me also assume that, as appears to be the case from paragraph [253], that the spiritual connection is asserted and exists in the minds, as it were, of people who never visited the area in question.

MR PULLIN: Yes.

CALLINAN J: Now, obviously any native title right that they have would not therefore involve a right to go there, any specific right to go there, because if they do not go there and they do not exercise that right, it is not part of their title - let me use that term - and how can it be part of their title - how can the right to exclude others from going there be part of their title if they do not go there themselves in order to expel other people?

MR PULLIN: Well, it is a rhetorical question and we answer it the way your Honour is suggesting. It is impossible to make a finding of a right to exclude others when all there is a Dreaming story, which has never - - -

CALLINAN J: Without some use or activity actually on the ground, there can be no content to native title right or interest.

MR PULLIN: Yes, and then you drift into another ground, which is cultural knowledge, where the cultural knowledge can be protected, and we have a ground about that.

CALLINAN J: The same thing would apply in relation to that, would it not?

MR PULLIN: Yes.

KIRBY J: But what if a development were proposed to build a casino or some other place that was considered totally antithetical to this place that was very important for the spiritual beliefs and traditions of the Aboriginal people? You see, this is not quite like, say, an Australian of European ethnicity feeling some link to Ireland, because Ireland is another country. This is a claim by Aboriginal people in respect of their country and our country and therefore the fact that it is more nebulous than we have been used to does not necessarily mean that it does not exist, and the Act seems to postulate that it has to be given recognition.

MR PULLIN: Well, we submit that spiritual connection is not enough. If it is important, Aboriginal people will go there; they have important sites and they will either go there or avoid them, but go around them. In other words, there will be sometimes an avoidance in relation to an area, but it is one of those things that is easy to say in general terms, that if there is a spiritual connection then they must have some right to it, but, once again, it is talking in the abstract. The reality is that what happens is that you have a Dreaming story, and Dreaming stories of course change, as tradition hands down the story will change slightly, and as people - - -

CALLINAN J: And a Dreaming story might relate to territory that they have never seen.

MR PULLIN: Well, as I say, there is one now where the Dreaming story extends out into the desert somewhere from Western Australia which is a long, long way from the area that the - if you ask the Aborigines where their country is they say, "This is our country". There is another very good example of it in paragraph [253] which is quite important in relation to Lacrosse Island where - - -

CALLINAN J: And these peoples had different Dreaming stories also. Different peoples had different Dreaming stories about different areas, did they not?

MR PULLIN: Yes, that is right. There is different stories that end up quite often with a character or an animal shifting from place to place at different locations within the country.

KIRBY J: But if this were, as it were, a claim based on the religious or spiritual belief - spiritual, not religious - that an attempt was made to render equivalent to fee simple, then I can understand the point Justice Callinan is making but if it is for some other entitlement, as, for example, to prevent a development which would be totally inimical and destructive of the spiritual content of a place important - I mean, in western Europe battles are fought. Kosovo is all about this. The Serbs claim a spiritual link to Kosovo. This is not unique to Australian Aboriginals.

MR PULLIN: Jerusalem is very important to people of various faiths but nobody says they are entitled to control that area or direct people away from it.

KIRBY J: There is the key to it, "control that area" you see. It is a question of what is the content of the claim.

MR PULLIN: I knew it would be regarded as a facetious remark but it is not a facetious remark, your Honour, the Jerusalem reference, because in this case if you take, for example - there was a Dreaming story about Lacrosse. We went to a place and there was some evidence given with a painting showing various places and on the painting it was said, "Here is Lacrosse Island". Now, could we then look at the evidence in - so that was the evidence about a Dreaming story where a character ended up at Lacrosse Island.

If you could have a look at the Gajerrong evidence on it, it is in [253]. You will see that there was a challenge to the finding:

that Gajerrong country included the three islands in the north of the determination area, and the finding that any Gajerrong people or their ancestors occupied or used the islands, or the east coast of Cambridge Gulf. The evidence of enjoyment of native title rights and interests . . . was extremely limited. Dodger Carlton -

and Dodger Carlton was a Gajerrong man -

gave evidence that his only visit to Booroongoong -

which is Lacrosse Island -

was by helicopter, just before the native title claim was lodged and that he had never been to Ngarrmorr (Pelican Island).

Now, forget that there was some evidence in relation to Pelican about a man who went there way back in the early days, but in relation to Lacrosse the only evidence of Gajerrong contact with the island was that Dodger Carlton went there in a helicopter and his evidence is in there. He did not even hunt or fish when he was there. He went there in a helicopter, one assumes, because they were putting the claim together - one speculates on that.

No Miriuwung person said that was their country because from the findings - I do not have time to go to them - his Honour the trial judge said Miriuwung country was down in the south and Gajerrong country was in the north and the extension into the islands for Gajerrong was the helicopter trip and the spiritual connection which the Full Court has said - well, they did not really go into all this in detail but they said, "Look, just talking generally, there is a spiritual connection" and we say there was evidence of a spiritual connection in the sense of a Dreaming story but we say that is not enough. If it is enough, there is a great risk of lack of control in these cases because these people in this case were all genuine people.

I mean, it strikes one in a case like this, the limited experience that I have had, that as a group of people and witnesses they genuinely give their evidence without any eye to the final result that you might get in a commercial case but we have other claims that will come forward where if the law is that all you need is a Dreaming story, well, it is very hard to cross-examine that there is no Dreaming story.

CALLINAN J: But to enjoy or believe in a Dreaming story that does not involve any physical presence will not in the future involve or require any physical presence, but the enjoyment of the native title right in respect of the Dreaming story can exist in the same way as it has existed before, without any physical presence or without either the capacity or the desire to expel anybody else from the territory in respect of which the Dreaming story exists.

MR PULLIN: Your Honour, that is all I can say about that topic because of time constraints. Our submissions in relation to this ground, the spiritual connection ground, is at page 47.

GAUDRON J: Does it apply only to Lacrosse Island?

MR PULLIN: Your Honour, there is not enough time to go into the other areas. I have identified them in paragraph [205] but I am afraid there is a debate between us about some of the areas, so let us just use Lacrosse Island as a really good example where no Miriuwung person claimed it. The only Gajerrong person who gave evidence about it was Dodger Carlton who said he went there by helicopter. Let us put that against the finding of the court that spiritual connection is enough, and we will concede that there was a Dreaming story about Lacrosse Island. That raises the issue sharply and in clear focus and the Court will make its decision - - -

KIRBY J: Do you understand that the claim is for exclusive possession of the island?

MR PULLIN: Yes, it was, your Honour, possession, occupation, use and enjoyment.

GAUDRON J: This seems to be the problem the way the claim is framed.

KIRBY J: It might be an ambit claim like many that Justice Gaudron and I saw in an earlier life.

MR PULLIN: They have it, your Honour.

GAUDRON J: And the failure, as Justice Hayne points out, to first catch your right and identify it.

MR PULLIN: That is what they claimed, what they gained and that is the result.

HAYNE J: At the moment I do not have great difficulty in understanding that connection might be spiritual connection. If the Parliament had wanted to say "use", it could have. If the Aboriginal peoples used the land or waters, a very easy piece of drafting. But that leaves utterly unanswered: "You have that connection with the land under the law and tradition but what are the rights and interests that you claim?". That seems to me to be where the debate shifts to and it is not answered simply by saying spiritual connection is insufficient.

MR PULLIN: Well, your Honour, the customs have to relate to the area of land, we say. So, in other words, the customary uses have to relate to the land. The rights and interests which are the product of the exercise of rights require some physical use if they want rights granted which involve physical use.

GLEESON CJ: Is section 223(1)(c) relevant to this discussion?

MR PULLIN: It depends what the common law is, your Honour, in relation to the subject. We say that the common law at the moment is Mabo and Mabo says usufructuary rights, and usufructuary rights are use of the land. We say Mabo is replete with that kind of suggestion.

KIRBY J: Yes, but the caravan has moved on. We now have the Act of Parliament which seems to have a broader focus.

MR PULLIN: No, this is - - -

GLEESON CJ: I am just reading from the Act of Parliament.

MR PULLIN: Yes, the Act of Parliament says that they have to be recognised by the common law, so what is the common law, and I point to Mabo.

KIRBY J: Yes, but you cannot say that they give with one hand, spiritual connection, and then take away with the other, recognised by the common law. It has to be read as a whole.

MR PULLIN: That is a common device in parliamentary drafting, your Honour. When you read the first paragraph, you think, "Oh, we are right", and then you find the next paragraph cuts you down a bit, and the third paragraph cuts you down some more.

KIRBY J: Just help me with this, you would say there is still work for the spiritual connection to do where the spiritual connection does involve use and occupation?

MR PULLIN: Look, if there are customs, that is, they do things in a customary way in relation to a piece of land, then there will be also probably some spiritual connection which will show that they are native title rights and interests because they will go there, onto the land, it will be part of their customary observance of, say, a Dreaming story, which involves a character which requires some attendance at a particular site. But that is a different situation. Your Honours, we are running out of time. Could I mention, at this point, your Honour, we were schedule for another hour on Tuesday and I think we do need at least some of that time.

GLEESON CJ: Yes.

MR PULLIN: Your Honours, can I just deal with two grounds, and I have mentioned them in passing - I will need to identify them. In the Ward appeal, if you look at page 915, ground (3), under the heading "Suspension and Permanence", you will see the last two words on the page are the words "permits to occupy". So, in other words, as I understand the ground, they are saying, "If we win this ground, it will affect the decision about permits to occupy". But if you look at the materials we have put forward in relation to our revocation motion, permit to occupy was the subject of an express ground which was ground 2.15 in the draft ground of appeal. Leave was refused in relation to that.

This ground has then been redrafted and we have done the underlining to show the changes to the grounds as they compared with the original draft and "permits to occupy" then comes back in because leave was granted under ground (3). We say that that cannot be right. We say that that is not the ground on which leave was granted and it cannot be done by saying, "Well, we got leave on ground (3), we now put the ground we were not allowed in into ground (3)". But if I am wrong on that - - -

GLEESON CJ: Just before you go any further, you will let us have the document in due course, will you, Mr Barker, relating your grounds of appeal to the leave that was given?

MR PULLIN: We have done that, your Honour, in fact, in the bundle. We have actually identified - no more could be done, I think, your Honour, to save Mr Barker some work on it, unless he disagrees with it.

GAUDRON J: What you are saying now relates to the occupancy permit?

MR PULLIN: The permit to occupy. It was a ground - - -

GAUDRON J: Granted pending the grant of a fee simple?

MR PULLIN: Yes, yes. But if I am wrong - - -

GAUDRON J: May the consequences of that not ultimately be ascertained from the definition of "Crown Lands"?

MR PULLIN: Well, your Honour, can I say all that is to be said about it. In Justice Lee, he dealt with it at page 570 and applying his test of adverse dominion, almost nothing can extinguish native title. Then the decision of the Full Court under paragraphs [370] to [373] dealt with the permit to occupy. We adopt the reasons of the Full Court and say that they were correct on that topic.

In relation to conditional purchase leases, that is in exactly the same situation. There was a ground challenging the finding of the court about conditional purchase leases, it was ground 2.38. Leave was refused in relation to that ground. That has come back into ground 3. It comes in again at the foot of ground 3. We say that if one looks at what the court said between paragraphs [597]and [608] you will see that there is a regime for the grant of a lease which leads to the right to purchase the land. We say the grant of that extinguished native title for the reasons given between [597] and [608]. I am afraid we have no written submissions about these two grounds. If the Court would like us to do it, we can just reduce this to writing so it does not get forgotten, but we did not put it in because we were not sure until the second last of the directions hearings before Justice Hayne exactly what the final position was, and it was not finally resolved as Justice Hayne could not do it because it was a Full Court matter.

HAYNE J: That was the December directions hearing.

MR PULLIN: Yes, that is right. Paragraph 114, we did mention the fact that the conditional purchase lease should be upheld and we do mention the permit to occupy, but it is only in two paragraphs, 114 and 115 of our submissions.

We have a ground also about cumulative extinguishment, but that just follows from all of the submissions that I have made, that is that - - -

GLEESON CJ: Mr Pullin, it would be as well if you put in written submissions on these matters for the purpose that you mentioned a little earlier.

MR PULLIN: Yes, all right, we will do that. There is a ground, your Honour, in relation to cumulative extinguishment and that is simply that if the pastoral lease extinguishes exclusive rights and then by-laws under the rights in the Water Irrigation Act, for example, exclude the right to camp or to take flora, we say that that works a further extinguishment of a particular right and I might need to expand that as well. I do not know that we have covered that in any satisfactory way, I am just trying to remember.

Now, your Honours, I think that might bring me to the end.

GAUDRON J: Were you going to deal with the fauna?

MR PULLIN: Mr Pettit will deal with that. Yes, the only thing I need to mention before Mr Pettit takes over with his section is that we have an application for leave to cross-appeal and we seek special leave to cross-appeal, and if I explain that - I better take the Court to it so that you understand exactly what is involved, at page 925 of volume 5 of the appeal book. Now, if the Court strikes through 2.1 and 2.2 which have abandoned, 2.4 and 2.5, and in relation to 2.3, we would like to abandon the reference to the second lease, so if you could strike through the reference to that lease. In fact, I realise I have not dealt with leases, I will have to quickly deal with leases as well.

KIRBY J: Is there a theory in these amendments? Is there something that - - -?

MR PULLIN: No, we were instructed to abandon them, your Honour, and some of them are discrete topics, completely different points. But in relation to the remaining grounds, you will see a note at the end of each of them "cf Notice of Contention" and then a number, so every one of the arguments that we raise in relation to these points are already raised in our notice of contention, to support the findings in relation to areas where there has been either complete extinguishment or part extinguishment. And we submit that if the same argument is required in relation to those areas, then special leave should be granted to argue them where they apply outside of the extinguishment areas. So you will see the reflection of exactly the same ground in the notice of contention.

Could I just mention leases, which should not take me more than a few minutes. Leases is dealt with at page 33 of our outline. There is a tab in our earlier submissions - - -

GLEESON CJ: What part of the determination area do they relate to?

MR PULLIN: All over the place, your Honour, both inside the Ord Project area - and the one that we have identified in the special leave application for the cross-appeal is outside. If I can take the Court to Justice Lee's judgment quickly. We seize upon one lease as an example within the Ord Irrigation Project, which is one that would be picked up in our contention ground 7, where we say if the Ord Project did not extinguish, then leases did. If you look - - -

GLEESON CJ: This is one of your layers of extinguishment.

MR PULLIN: Yes. If you look at Justice Lee at page 622, he identifies a lease at line 30. It was a special lease to a Murphy - and there was another man, in fact - in respect of 490 hectares; a term of 10 years commencing in 1971, so there are no RDA complications. He says it is in slightly irregular form, but, in fact, it seems to be a perfectly ordinary one - I do not know what his Honour meant by that. It also provides that there will be no compensation for improvements or flooding of the land. The document itself is at page 1126 in volume 5, and it looks like a common or garden lease demising an interest in land, conferring exclusive possession, for the special purpose of cultivation and grazing. As I say, it is pursuant to section 116 of the Land Act. This was the authority to grant the lease. That appears at the top, and you will see the usual provisions that you will get within a lease of land.

Now, Justice Lee, of course, applying adverse dominion, said that it lacked permanence, you will see at 622. He looked at what was actually done. He said there was a lack of permanence in the use of the land and that there was no clear and plain intention of the Crown by the grant of the lease - so you will see that his Honour has gone down to the level of the grant to look for intention as well - and so it did not extinguish. It is sealed and signed - the whole document is not irregular because there is a TLA stamp, so it was registered in the title office as well. Over the page - this is back in the documents - 1137 you will see the registration at the Titles Office and then was eventually a forfeiture for I think non-payment - non-compliance with some conditions and it reverted to vacant Crown land.

Now, the Full Court dealt with this at [610] but, of course, they really, having found that - no, [616], I think it is. Because they said that they found that the Ord Scheme had extinguished, they said, in effect, that they did not have to look at a number of leases, and this is one of them. So you will see paragraph [616] they say:

In respect of all but the Northern Australian Estates Ltd special lease, we have already held that native title has been wholly extinguished in respect of those lands resumed or acquired for the Ord project.

So we say that if the Ord Project fails as an extinguishing event, we say in this particular area of land this lease did extinguish, and there are lots of leases and they are all particularised in one of the tabs in our outline of submissions, and I think it is schedule 1. We say that they are leases, and in Wik Justice Gummow at 176, the Chief Justice and Justice McHugh and Dawson at 87 and 88, Justice Toohey at 102 and 126, Justice Gaudron 135, and Justice Kirby at 224 all express obiter that leases extinguish native title.

Tab I in our outline of submissions list all of the leases that we are concerned with and under which ground and which contention the lease is and where it is to be found and which exhibit number and which page it refers to, and some of them are the subject of specific grounds of appeal by two other parties. But you only need to deal with one, if the principle is clear, that we think it will be a matter of just sending it away. I will call on Mr Pettit to deal with his matter.

GLEESON CJ: Thank you, Mr Pullin. Yes, Mr Pettit.

MR PETTIT: Thank you, your Honour. Anticipating some loss of time, I had prepared, your Honour, additional submissions in respect of the areas I intend to deal with and I have asked them to be distributed, I believe the Court usher - - -

GLEESON CJ: Yes, thank you, we have them.

MR PETTIT: In the time available for this afternoon, could I deal firstly with two of the smaller points and leave for Tuesday the large issue of reserves. Could I take the Court to page 132 of those submissions, to deal with what is the Ward appellants' ground 14, relating to section 47B of the Native Title Act. The complaint by the Ward appellants is that this ground is relevant, relates to their clients' claim, but was not dealt with by the Full Court. Section 47B, in effect, deals with vacant Crown land and has generally speaking the effect that if there is occupation by the claimants at the date of a lodgment of an application for determination of native title, then any "prior extinguishment is to be disregarded".

It was inserted into the Native Title Act in 1988. That was after the evidence had been concluded, but before his Honour Justice Lee delivered judgment. So the matter was raised before Justice Lee, and his Honour dealt with it. There is no need for your Honours to go to it, 159 ALR 636, where his Honour said that on the facts that he had found, section 47B had no application to the parts of the claim area to which the Ward applicants submitted it may apply, and that included, of course, vacant Crown land.

One of the difficulties, your Honours, is that this matter was not then ever raised with the Full Court. Strictly, we say, it ought to have been raised as a contention. That is, the Ward respondents before the Full Court ought to have contended that if we were right about, in particular, the Ord Project, then within the Ord Project, those parts which remained vacant Crown land ought to have been dealt with by the application of section 47B. That was not done.

GAUDRON J: Is there a definition of "Crown land" in the Native Title Act, or does one go back to the Western Australia Act?

MR PETTIT: There is not a definition in the Native Title Act, your Honour, and nor need there be because although that phrase appears in the heading to the section it does not appear in the section itself. It is a shorthand for the purpose of the title only. We say, firstly, that had the matter been raised before the Full Court we would have argued, as I think we did before Justice Lee, several things. Perhaps I should take you to the section, first:

(i) This section applies if:

(a) a claimant application is made in relation to an area; and

(b) when the application is made, the area is not -

and then there is a list of three circumstances which are not to obtain if the section is to apply. The first is there is to be no:

freehold estate or a lease -

and pausing there, there is no limitation on the word "lease" as there is in lots of other parts of the Native Title Act. In other words, the word "lease" there includes mining lease. Secondly, the area is not to be:

covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation . . . under which the whole or a part of the land or waters in the area is to be used for public purposes - - -

GUMMOW J: It is a modern definition of "wastelands of the Crown" is what it is.

MR PETTIT: I am sorry, your Honour?

GUMMOW J: It is a modern-style definition of the old idea of the "wastelands of the Crown".

MR PETTIT: Yes, but it would not coincide with the old definition of "wasteland". There are many more things included here than would have appeared in a definition of "wasteland". Thirdly:

subject to a resumption process -

which is defined - that is defined over the page in subsection (5)(b) which reads for the purposes of this section - passing over (a) for the moment:

an area is subject to a resumption process at a particular time (the test time) if:

(i) all interests last existing in relation to the area before the test time were acquired, resumed or revoked . . . when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

(iii) the Crown still had a bona fide intention of that kind -

Now, had the matter been raised before the Full Court, we would have argued two or three things. Firstly, in terms of subsection (1)(c), namely, that:

when the application is made, one or more members of the native title claim group occupy the area.

We would have argued, as we do today, that the word "occupy" is used in a specific sense. It is used as actual occupation and cannot include the kind of evidence which amounts to no more than the occasional visit, much less a spiritual connection. So as a result of that, there was no finding - - -

KIRBY J: Can I just ask you is the point you are raising a procedural fairness question or is this purely a legal argument which, on the evidence that has been adduced, this Court can deal with just as well as the Full Court?

MR PETTIT: If this Court were prepared to search through the evidence, it could, your Honour.

GUMMOW J: What do you mean "search through the evidence"? Do you mean make some findings?

MR PETTIT: Make some findings of evidence, yes, your Honour.

GUMMOW J: Well, we should try and use legal expressions, particularly when we are here.

MR PETTIT: Yes. The second point is, your Honour, that we submit, with respect, that because of the circumstances that special leave on this particular ground of appeal ought to be revoked and, thirdly, we say that if neither of those courses is taken, that the Court ought to hold, in our respectful submission, that "occupy" does have a particular meaning in that section.

GUMMOW J: We have to make a primary finding of fact, do we not, about who did or did not occupy?

MR PETTIT: Yes, that is so, your Honour.

KIRBY J: In fairness to the Ward appellants, that is probably because of the sequence of events, that the amendment to the Act came in at the death knock after evidence was concluded, in time for Justice Lee to deal with it but in a way which they complain is not satisfactory and, in fact, erroneous.

MR PETTIT: I am not sure I follow that, your Honour. The matter certainly was raised before Justice Lee after the provisions came into effect. Justice Lee called us all back and submissions were made in terms of section 47B.

GUMMOW J: Yes, but no one sought leave to reopen.

MR PETTIT: That is correct, your Honour, that is absolutely right, with respect. Now, if the matter - - -

GAUDRON J: But it was relied on, was it?

MR PETTIT: By the trial judge, your Honour?

GAUDRON J: No, by the Ben Ward appellants.

MR PETTIT: Before his Honour Justice Lee?

GAUDRON J: Yes.

MR PETTIT: Yes.

GAUDRON J: They did not seem to need any further evidence, but they did rely on it. In the way in which he disposed of the matter, it was not necessary for him to refer to it, I take it?

MR PETTIT: That is correct and his Honour so found.

GAUDRON J: So then when you appealed, you would not have raised it?

MR PETTIT: No, your Honour.

GAUDRON J: All that might have happened is that there would have been a notice of contention. You say there was no such notice of contention?

MR PETTIT: Quite so. In any event, the next point we would make about section 47B is that the entirety of the Ord Project, we say, is obviously subject to what is referred to in the section as "a resumption process". Taking the Court back to subsection (5)(b), it is the case that:

(i) all interests last existing in relation to the area before the test time were acquired -

That is they were acquired from the pastoral lessees. They were either acquired, which fits perfectly Argyle Downs Pastoral Station, they were resumed which fits Ivanhoe or perhaps "surrendered" also applies to Argyle.

(ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose;

That is also obviously true, in our submission, the purpose being the construction and extension of the Ord Irrigation Project.

(iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time.

And the test time is obviously at the time of writing the judgment and all the evidence is to that effect.

We say also that of many reserves scattered throughout the claim area, each is within an exception, namely the exception in subsection (1)(b)(ii), that is, it is land which is "covered by a reservation". It is also covered by a "dedication", in our submission.

GLEESON CJ: Just before you pass away from what Justice Lee said, Justice Lee said, as I read from your submissions, on the facts set out in his reasons, section 47B has no application, is that correct?

MR PETTIT: That is correct, your Honour.

GLEESON CJ: In other words, he said that subsection (1) is not satisfied?

MR PETTIT: I think his Honour meant that there was no extinguishment on his Honour's finding to be ignored.

GLEESON CJ: If that is what he meant, it is different from what he said. I just invite your attention to 47B and to the language of subsection (1).

McHUGH J: I thought his Honour said in terms that the reason 47B did not apply was because he had found no extinguishment in respect of pastoral leases.

GLEESON CJ: By "has no application", did he mean "has no operation"?

MR PETTIT: Yes, that is the way I had read it, your Honour.

GLEESON CJ: I see, well, you may be right. I am just drawing your attention to the fact he has expressed himself in the language of subsection (1). However, do not take any time over it.

MR PETTIT: No, I will come back to that on Tuesday, your Honour. We also say that the only other area to which it might be now said to apply, or ought to have been applied by the Full Court, is to the very northern section, which has been referred to in these proceedings as the mudflats, and also along the - in the intertidal zone, generally. As to that, we say there could be no application for section 47B for two reasons. Firstly, the circumstances in which the Full Court held that there had been any extinguishment, or could be said to have held that there is any extinguishment in that area, was that there was a right in the public to fish, and their Honours could have also found a right to navigate.

Those public rights which affected native title, or reduced native title, were in existence, we say, at the time of the assertion of sovereignty, at the same time as native title came into effect, so could not be said to have extinguished native title. But, perhaps more importantly, native title, we say, in those circumstances, could not be said to have been extinguished by the creation of a prior interest. If I can take your Honours to section 47B(2), under the heading "Prior extinguishment to be disregarded". This is a provision, the operative provision, of section 47B. It reads:

For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

So, in our submission, it could not be said that the public rights to fish, to navigate, fall within that provision.

GAUDRON J: I might have some difficulty with the notion of public rights/extinguished rights except perhaps if it was asserted that there was a right to exclusive possession, a notion which I think has difficulties in relation to claims of this kind.

MR PETTIT: Yes, your Honour. I do not think there is any contest in that regard because the finding of the Full Court was that native title was diminished only to that extent, that there could not be an exclusive fishery and that is what we seek to uphold. It is, however, what the Ward appellants seek to challenge.

GAUDRON J: That is really a question, I suspect, about what the common law will recognise, there being a public right of fishing. The common law will only recognise a non-exclusive right.

MR PETTIT: Yes, I, with respect, entirely agree, that that is our point and that is why it is not a prior extinguishment which is to be disregarded. It is simply that the common law would not recognise in the first place an exclusive fishery.

GLEESON CJ: I wonder if the language of section 47B(2) throws any light on the relationship between the statute and common law. However, that is a matter that other people might want to argue about. Is that a convenient time, Mr Pettit?

MR PETTIT: It is, thank you, your Honour.

GLEESON CJ: We will adjourn until Tuesday at 10.15 am.

MR McINTYRE: Your Honour, I was just wondering if I could have a few seconds to hand you some documents Mr Sofronoff promised to provide.

GLEESON CJ: Yes, Mr McIntyre.

MR McINTYRE: The first is a note concerning the Aboriginal Heritage Act and the provisions which Justice Kirby asked about. We say that section 7 has some application, but section 8, not presently.

The second is the legislation instruments which Justice Hayne asked about in relation to the Lissadell Downs and Texas Downs reserves. They are all there. You might note that the Crown law officer who drafted the lease got the proclamation wrong in the recitals but otherwise the documents are there, your Honours.

GLEESON CJ: Yes, thank you, Mr McIntyre. We will adjourn now until 10.15 on Tuesday.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 13 MARCH 2001

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2001/89.html