State of Western Australia v Brown and Ors [2014] HCATrans 14 (12 February 2014)

Last Updated: 12 February 2014

[2014] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P49 of 2013

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Appellant

and

ALEXANDER BROWN AND JEFFREY BROWN AND CLINTON COOK AND CHARLIE COPPIN

First Respondents

BHP BILLITON MINERALS PTY LTD AND ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD

Second Respondents

FRENCH CJ
HAYNE J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 2014, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR G.R. DONALDSON, SC, Solicitor-General for the State of Western Australia: If it please your Honours, I appear with my learned friend, MR G.J. RANSON, for the appellant. (instructed by State Solicitor (WA))

MR B.W. WALKER, QC: May it please the Court, I appear with my learned friends, MR R.W. BLOWES, SC and MS C.L. TAN, for the first respondents. (instructed by Yamatji Marlpa Aboriginal Corporation)

MR P.D. QUINLAN, SC: May it please the Court, I appear with my learned friend, MS J.M. BURSLE, for the second respondents. (instructed by Ashurst)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR D.F. O’LEARY, on the instructions of the Attorney-General for South Australia seeking leave to intervene as amicus curiae. (instructed by Crown Solicitor (SA))

FRENCH CJ: You have that leave. Mr Southalan.

MR J.L. SOUTHALAN: Good morning, your Honour. I represent Australian Lawyers for Human Rights who are seeking leave to appear as amicus curiae. (instructed by Australian Lawyers for Human Rights)

FRENCH CJ: Do you wish to add anything to what you have put in your written submissions as to the basis for your intervention?

MR SOUTHALAN: No, sir. On what we have seen in the parties’ submissions in reply there is nothing further we need to add.

FRENCH CJ: Mr Southalan, the Court declines to accede to your intervention.

MR SOUTHALAN: Thank you, your Honour.

FRENCH CJ: You may be excused if you wish. Yes, Mr Donaldson.

MR DONALDSON: Your Honours, subject to what your Honours have to say, the parties have had a discussion about the order of things. What is proposed, your Honour, is my learned friend, Mr Quinlan, will follow me, and the Solicitor for South Australia will follow Mr Quinlan and Mr Walker will go after that, your Honours.

FRENCH CJ: Very well.

MR DONALDSON: Your Honours will have our oral outline. Could I ask your Honours to look to the three maps that we have annexed to the outline? I think my learned friend, Mr Walker, is going to hand some further maps up later. Could I explain to your Honours what these maps are? They are simply enlargements of material which is in the papers. Your Honours, this is not new material.

The first of those maps, your Honours, shows the determination area, and your Honours will see on the shaded brown area, ML 235SA and the hashed boundary of that, and two sections, sections 1 and 2 of ML 249SA, 235 and 249 being the two mining leases. Could I also point out to your Honours on this map that the pink areas are in the determination referred to as unclaimed areas. They were never in fact claimed. They were excluded from the area. One of them is a special lease for rail, and that is the larger pink area, and the others are road reserves.

Could I point this out to your Honours? Your Honours will see that – and it is easier with the rail reserve. With the rail special lease reserves, your Honour, they extend beyond the area of the two mining leases, obviously on the right-hand side of the map and towards the top left-hand side of the map. Her Honour Justice Bennett explained at paragraph 151 of her Honour’s reasons, which I need not take your Honours to, that the reason why the special leases for the rail and the road reserves were there was simply so that they joined up to the special leases and the road reserves that were outside of the determination area. I will come to explain, your Honours, in due course the significance of that.

So that is the tenure that was on the particular determination area. The next map, your Honours, again appears in the appeal book. What we have done, your Honour, is simply, with the final map in that group of three, is to enlarge the second of those matters and if your Honours see that ML 235SA is the green area and the two sections of 249SA that were on the previous map, sections 1 and 2 are the pink areas that adjoin 235 and other sections of 249 are identified there.

So the sections of 249 that are within the claim area are identified there and your Honours will see the different sections, 7, 8 and 9, for instance, that are within the determination area. As I said, your Honours, that is simply a larger version of the map which precedes it. We hope that that will in due course assist your Honours in understanding, when there is reference to sections in 249SA, what the references are.

Your Honours, this case involves the extinguishing effect of the two mineral leases 235SA and 249SA. As your Honours have seen from that map, only part of 249SA is within the claim area. Other areas substantially to the south of the determination area of 249 are excluded. The central issue in this case, your Honours, of course, is to determine what are the rights attaching to the mining lease and to characterise those rights and to determine whether they are inconsistent with the determined native title rights.

In relation to the lease, your Honours, could I start by taking your Honours to the terms of the State agreement. That is in the bundle of agreed legislation. If your Honours turn, please, to page 9 of the bundle, your Honours will see that that is the commencement of the relevant State agreement. Your Honours no doubt are familiar with the general form of such agreements. They, in effect, annex the legislation – the legislation annexed the agreement which is entered into by the parties.

The first operative clause for these purposes, your Honours, is clause 4 – could I ask your Honours to turn to that – on page 19. Your Honours will see that the scheme of the agreement was, first, that there would be what is referred to as “Phase 1” obligations, which involved the joint venturers preparing a particular form of submission or proposal. Clauses 4(1)(a) through to (g) identify the work that had to be undertaken in relation to those initial proposals.

A more detailed proposal was contemplated by clause 5 and your Honours will see that that more detailed proposal, in subsection (2), was required to have been submitted by 31 December 1964. One thing that emerges from clause 5, your Honours, is that it relates only to mining area “A”. Your Honours will see, again, that set out in clause 5.(2)(a) are the particular matters that were to be the subject of the more detailed proposal at this second stage. So, your Honours, there was required to be, over the page on 22, for instance, in (ii), a detailed proposal in relation to the railway between mining area “A” and Port Hedland and in relation to town sites, housing, water supply and the like.

FRENCH CJ: Was mining area “A” contiguous with the area covered by the lease 235?

MR DONALDSON: Yes, your Honour. Your Honours will see in clause 6 of the agreement that there was a period of time within which the Minister could consider that proposal, and clause 7 provided for extensions of time. Your Honours, if I could simply point out on page 25, the power of the Minister to reject the proposal could only be exercised prior to the grant of the mining lease.

HAYNE J: What are we getting out of this history, Mr Solicitor?

MR DONALDSON: I am taking your Honours through to clause 8(1) and (2) to identify to your Honours the extent of the purposes of the lease that was granted. I am going to those clauses now, your Honour. Clause 8(1) was a provision which provided for the grant of a mining lease prior to the commencement date, and clause 8(2), your Honour, refers to the detailed proposal which is to be submitted. If I could ask your Honours to look at (b) on page 27, your Honours will see that the obligation on the State was to “grant” upon approval of the proposals:

to the Joint Venturers as tenants in common in equal shares in fee simple or for such terms or periods –

et cetera, the following –

for nominal consideration-townsite lots;

. . . special leases –

and leases as set out in what actually is C. Your Honours, unfortunately, there is a photocopying error. That is A, B and C. So, in addition to the grant of a mining lease under – or pursuant to this agreement, your Honours, there was also an obligation upon the State to grant these particular other titles if they were required by the joint venturers. Again, your Honour, over at page 29, if I might, you will see clause 8(2)(c) which deals with various other purposes for which particular instruments can be granted.

I will go to the terms of the mining lease that was granted in a moment, your Honours, but before doing so can I make this observation? I have taken your Honours to the area and your Honours have seen that there were only two forms of tenure other than the mining lease; a special lease for rail and some road reserves. Her Honour Justice Bennett accepted that the reason why those were granted was simply so that the rail corridor and the roads were clearly defined and were contiguous with areas of the rail corridor and the road reserve outside of the determination area.

There was no need for the venturers to actually have granted to them a special lease for that rail corridor within the area of the mining lease and that is because the rights able to be exercised by the tenement holders pursuant to the mining lease that was granted included a right to construct the railway and roads. So that special lease and those road reserves are simply there so that they join up at either end of the determination area with the rail reserve and the road reserve outside of the mining area. So when reference is had to the purposes for which tenure is granted in this agreement, that is to be understood in light of the fact that everything that needed to be done to give effect to the purposes of the agreement and the interests of the party under this agreement were able to be done pursuant to the terms of the mining lease.

Your Honours, could I also point out clause 8(5)(b), that is on page 30. I will not read that out for your Honours but simply leave your Honours to do so. That provides that the area of the mining lease cannot be resumed. That is a right more extensive, of course, than the right of a holder of a fee simple title, for instance. Likewise, your Honour, there is a provision in the agreement to the effect that there can be no rezoning of the particular area of the mining leases as well, and I will take your Honours to that.

Your Honours will see in clause 9(1) there is set out what the obligations of the venturers are under this agreement. Your Honours will see in 9(1)(a) that there was an obligation to:

construct install and provide . . . mining plant and equipment crushing screening stockpiling and car loading plant and facilities power house workshop and other things [required] –

In (c) there was an obligation to construct -

from mining area “A” to the Joint Venturers’ wharf [a railway] –

There was an obligation in (d) to construct roads. Subclause (e) related to the wharf at Port Hedland, and (f) in accordance with the proposals that were submitted prior to the grant of the mining, or approval of those proposals and grant of the mining lease, there was an obligation to:

(ii) lay out and develop the townsites and provide adequate and suitable housing recreational and other facilities and services;

(iii) construct and provide roads housing school water and power supplies and other amenities and services; and

(iv) construct and provide other works (if any) including the airstrip.

FRENCH CJ: Now, some of these obligations, is it right, were given statutory effect by clause 3(2)(a) of the agreement, read with section (4)(2)(b).

MR DONALDSON: Correct.

FRENCH CJ: The mining lease, ML235, does that combination of provisions also have the effect that the grant of that mining lease is the exercise of a statutory obligation imposed by that combined reading?

MR DONALDSON: Yes, your Honour. Once the proposal was made and approved there is an obligation to grant the mining lease.

FRENCH CJ: But by statute, by reason of section 4, combined with 3(2)(a) and so forth?

MR DONALDSON: Correct. Your Honours, if I could point out, because something was made of this by my learned friends, at page 34 of the bundle there is another provision, clause 9, which deals with a particular reservation. Your Honours will see that in (g) – that is 9(2)(g) – there was an obligation to:

allow the State and third parties to have access . . . over the mineral lease (by separate route road or railway) PROVIDED THAT such access over shall not unduly prejudice or interfere with the Joint Venturers’ operations hereunder –

We will come to address the possible significance of that, your Honours, in due course. The provision that I referred to your Honour about town planning, that is 10(g) and that is on page 44, so they were required to “remain zoned” for the uses and purposes of the agreement. Again, your Honours, that is a right in some respects more extensive than the holder of a fee simple title.

Your Honours, without taking the Court to them, your Honours will know that clause 11 of the agreement is a similar clause dealing with mining area “B”. Mining area “B” is that of ML 249SA. Although clause 11 also, your Honours, refers to mining area “C”, there is no part of mining area “C” within this determination area, so nothing in relation to mining area “C” is relevant.

There is an equivalent, your Honours, to clause 8(2)(b) in relation to mining area “B”, which is provided for in clause 12A, and that is in one of the various agreements, your Honours, and that is to be seen at page 147. All that that does, your Honours, that particular provision, is reproduce the terms of clause 8(2)(b) that I have taken your Honours to in relation to mining area “B” and mining area “C”.

Your Honours, as was accepted by all of the Honours who have looked at this matter below, one of the consequences of that statutory and State agreement background is that the rights conferred by the mining instrument, or the mining leases in this case, are more extensive than a mining lease granted under what might be thought of as traditional mining legislation because the purposes - - -

HAYNE J: There may be separate rights arising under the agreement. Why are the rights under the lease any different?

MR DONALDSON: I am not suggesting that they are different, your Honour. I am suggesting that the rights that are exercised and were exercised on the lease areas were exercised pursuant to the rights to do so under the lease instrument. That was the only tenure that was needed to do it.

HAYNE J: Therefore, what is the purpose of observing, as one does, that the agreement gave additional rights and obliged the State in ways that the mining lease itself did not?

MR DONALDSON: The purpose of it, your Honour, is this, that when one looks to certain of the purposes that are set out in the State agreement that refer to the construction of town sites, railways, airstrips, power stations and the like, all of those matters were lawfully able to be done pursuant to the rights of the holders of the lease because of the lease. They are not rights, your Honour, that are always conferred by or incidental to the grant of a mining lease. That is the purpose, your Honour. They had more extensive rights pursuant to this instrument to do things on the ground than holders of certain other types of mining leases might have. Can I take your Honours then to the terms of the mining lease? That is in the first volume of the appeal book. The two mining leases are in identical form, your Honour; 235SA is at page 149.

FRENCH CJ: The legal authority to grant the second lease, the clause 11 lease, is not identical, is it, to the first lease?

MR DONALDSON: No, rise under 11.

FRENCH CJ: Sorry?

MR DONALDSON: It rises under clause 11, not 8.

FRENCH CJ: Yes, I know, but that is not given statutory effect in the same way that clause 8 is.

MR DONALDSON: By reason of - - -

FRENCH CJ: By reason of clause 3 read with section 4 that I mentioned before.

MR DONALDSON: Yes, that is right.

FRENCH CJ: So what is the basis upon which that lease was granted? Granted under the Mining Act?

MR DONALDSON: It was granted pursuant to the terms of the agreement, those provisions which did not have a statutory force. But there was an agreement between the State and the - - -

FRENCH CJ: I understand that. So you are saying it is an Executive act?

MR DONALDSON: Yes, that is.

FRENCH CJ: Is it authorised by some statute otherwise?

MR DONALDSON: It is in the form of a 1904 mining lease, your Honour, so it is supplemented by – it is a 1904 mining lease in form, your Honour. Your Honours will see in the lease instrument itself, there is a reference to a grant pursuant or including the rights of the holder of the lease under the 1904 Mining Act. Could I ask your Honours to turn to page 149? Your Honours will see at about point 5 of that page that it is granted to the joint venturer as a mineral lease over mining areas “A”, “B” and “C”, and the Act “authorised the grant of a mineral lease or leases”, and then there is a grant and demise to the joint venturers:

as tenants in common in equals shares subject to the said provisions –

and they are the provisions of the State agreement, the area in mining area “A” that is identified. So there is a grant of the mining lease, and then over the page, your Honours, the third line –

and all those mines, veins, seams, lodes and deposits of iron ore in on or under the said land . . . together with –

so they get the lease, and together with –

all rights, liberties, easements, advantages and appurtances thereto belonging or appertaining to a lessee of a mineral lease under the MINING ACT, 1904 –

I will take your Honours to that in a moment. Then if your Honours could drop three lines -

or to which the JOINT VENTURERS are entitled under the said Agreement TO HOLD the said land and mine and all and singular the premises hereby demised for the full term of twenty one years . . . as provided in but subject to the said Agreement for the purposes but upon and subject to the terms, covenants and conditions set out in the said Agreement -

So the grant of the mining lease is for the purposes of the State agreement which includes the matters to which I have taken your Honours, that is, the construction of air strips, railways and the like, so more extensive rights than simply quarry, as it were. So they are the terms of this particular instrument - - -

HAYNE J: But the townships et cetera are those which are for the purposes of mining.

MR DONALDSON: Yes, your Honour. There is no issue with that. They were constructed for that purpose.

HAYNE J: That is all that was permitted to be constructed.

MR DONALDSON: Yes, by the terms of this agreement, your Honour. That is, the purpose of the town site was for the exploitation of the mineral resource.

HAYNE J: Only that?

MR DONALDSON: Yes. We do not contend otherwise, your Honour. Likewise, your Honour, in relation to the railway and other infrastructure, that was related to the mining activities. Having said that, your Honour, they happened. By that I mean, there was a town site on which people lived. The reason why they were there was because they were there for the mining purposes which were central under this agreement.

Your Honours, could I also point out to your Honours, and again it is common cause, that this agreement, this particular mining title again is rather unusual, certainly in Western Australia, in that it is for a recurring 21 year term so this mineral lease, as the evidence showed, was granted in the mid-1960s and remains in place and is subject to renewal every 21 years.

The mining instrument referred your Honours to the purposes of the Mining Act 1904. Could I ask your Honours to go back to the bundle of the material to which I earlier took you and to page 285? The section 48 – I will not read out the commencement of 48, but these are the purposes of 1904 mineral leases and so your Honours will see that there can be a grant of the lease “for any . . . of the undermentioned purposes”. So:

(1) for mining, and all purposes necessary to effectually carry on mining operations . . .

(2) for cutting and constructing thereon water races, drains . . .

(3) for erecting thereon any buildings and machinery to be used . . .

(4) for boring or sinking for, pumping, or raising water . . .

(5) for residence thereon in connection with any or all such purposes.

So it gets back really to your Honour Justice Hayne’s observation that - and we do not doubt it - that all of the non-strictly mining activities were all related to mining in this general way.

HAYNE J: But what was permitted and in part required by the agreement was in no sense different from matters, all of which were encompassed by (1) to (5) of 48, I think, is that right? Residence? Buildings?

MR DONALDSON: Yes. I think, your Honour - and again this was not the subject of evidence or any such - but the particular matters were certainly more specifically articulated in the State agreement in relation to those particular matters.

HAYNE J: This was a major infrastructure investment where both sides wanted to know what their obligations were and set them out.

MR DONALDSON: Quite so, and it was in the interests of all parties - - -

HAYNE J: Everybody.

MR DONALDSON: Quite so.

FRENCH CJ: Was the mineral lease 235 a creature of the Mining Act with add-ons or elaboration or a creature of the Government Agreements Act under the framework I mentioned to you before with incorporation, by reference, of matters coming out of the Mining Act?

MR DONALDSON: It is the former, your Honour.

FRENCH CJ: The former.

HAYNE J: Sorry, it is a creature of what?

MR DONALDSON: It was granted pursuant to and by reason of the State agreement, but the rights attaching to it by reason of the terms of the State agreement and any other rights attaching to a 1904 mineral lease.

FRENCH CJ: The definition of “mineral lease” in the State agreement refers to clause 8(1) and 8(2)(a) and also clause 11, I think, so that is the sense in which the term is being used.

MR DONALDSON: Yes. I think that is why I said to your Honour it is the former rather than the latter. I understood your Honour to be asking me was it strictly a mining lease granted under the 1904 Act.

FRENCH CJ: Yes. I thought that because clause 8(2)(a) was, in effect, given statutory operation by 3, read with section 4, that what was being granted – unless the term “mineral lease” simply picks up the Mining Act creature and says that shall be granted. Otherwise, unless you read it that way, this mineral lease is a creature of this Act – that is, the Government Agreements Act – which incorporates, by reference, various rights and obligations under the Mining Act.

MR DONALDSON: When your Honour is referring to the Government Agreements Act is your Honour referring to the Government Agreements Act 1979?

FRENCH CJ: No, I am sorry, the Mount Goldsworthy Agreement Act.

MR DONALDSON: I am terribly sorry, your Honour. I was a little confused because when your Honour was referring to the Government Agreements Act I thought your Honour was referring to the 1979 legislation.

FRENCH CJ: No, section 4 of the Agreement Act.

MR DONALDSON: Yes. As I think I have said to your Honour, it was granted pursuant to the obligations created by that legislation annexing the agreement, in our submission.

FRENCH CJ: That is a statutory obligation.

MR DONALDSON: Yes, and the terms of it, your Honour, are that the terms of the particular grant which gives rise to a consideration of whether there has been extinguishment are the terms of the lease instrument, which refer back to the purposes for which it was granted, which are to be seen in the State agreement. I took your Honours to section 48 of the Mining Act 1904 because those purposes are incorporated as well, but I do not quibble with Justice Hayne’s characterisation that the purposes in the State agreement are perhaps more specific articulations of the matters that are set out in section 48 of the 1904 agreement.

Your Honours, in this case there - and in this case, unlike this Court’s decision in Ward - there were, and have been, specific findings of native title that have been made and what the native title rights are and, again, your Honours, unlike the decision in Ward, in this case there was also extensive evidence led at trial as to the nature of the activities which were undertaken on the lease area which informed an understanding of the rights that were lawfully able to be exercised.

The native title determination, your Honour, is in volume 1 of the bundle at page 320. Could I take your Honours to those for this purpose? This case, as we will stress on more than one occasion, I suspect, a case about inconsistency of rights and the determination, and really a case about what the word “inconsistent” means, but a determination of whether the rights granted and exercisable under these mineral leases are inconsistent with the determined native title rights. What the determined native title rights are is set out at page 320 at paragraph 5. So when the determination or the assessment of whether there is an inconsistency is to be undertaken one looks to clause 5.

Again, your Honours, that was, of course, wholly unlike the situation in Ward, whether, when, where - when the matter got to this Court, of course, there was no determination of any native title rights, and so the Court was having to deal with all issues of extinguishment, as it were, in abstract. Your Honours will have seen from the written material, and from the judgment of Justice Bennett and from the judgment of Justice Greenwood, that there were extensive findings made as to the work which was actually undertaken on the mining lease area pursuant to the rights granted under the instrument.

I do not propose to go through those in any particular detail, your Honours, they are set out in paragraph 63 through to 68 of our written submission. The highlights of it, your Honour, really are, of course, that there was a massive pit constructed, it went from a hill of 135 metres to a pit of 132 metres. There was the town site which was constructed, and it was occupied for an extensive period of time. There were waste dumps which were constructed that were up to 35 metres in height. There was stored on the site, of course, massive machinery and material such as flammable fuel and explosives. There were constructed railways, roads and the like.

HAYNE J: What exactly is the point that you seek to draw from those observations?

MR DONALDSON: That when one comes to consider for the purposes of at least determining whether there is inconsistency between the rights granted under the mining lease and the determined native title rights to which I have taken your Honour, that those rights are informed by those matters and so when considering the rights exercisable under the mining lease, the judicial officer charged with making that determination understands that those lawful rights included the matters that I have outlined to your Honour.

Your Honour Justice Hayne will recall that in Ward it was observed on a number of occasions that the Court was unable to consider questions – many of the questions of inconsistency, not only because there was no appropriate determination of native title rights, but also because there was no material – there was no understanding of the rights which might have been or may have been able to have been exercised under certain of the - - -

FRENCH CJ: What is the difference in principle, apart from differences in magnitude, between those particular exercises of rights and the right on a pastoral lease to put a homestead anywhere you want to?

MR DONALDSON: The only distinction in principle, your Honour, may relate to the De Rose issue and it is a question of scope and magnitude – a principled difference of scope and magnitude, if I could put it that way, your Honour.

HAYNE J: I do not understand that proposition. You will no doubt come to it.

MR DONALDSON: I will deal with it now, your Honour. It is this. Your Honours are aware of the effect of the De Rose decision that has been dealt with in the submissions and it formed the subject of Justice Bennett’s determination. The De Rose Case itself involved a pastoral lease and the Full Court in De Rose determined that there was only extinguishment upon the actual occurrence of a matter such as the construction of a homestead, as Justice French referred to, and of course when that occurred. Now, on a pastoral lease, your Honours, it is a common understanding that activities such as that occur on a relatively small area of the granted title.

HAYNE J: So what? The inquiry is one about inconsistency of rights. That is capable of assessment, surely, at the time of the grant of the rights said to be inconsistent. Not only is it capable of determination then, must it not be determined then?

MR DONALDSON: Yes.

HAYNE J: How then does it matter? How do you take account of the fact that on the pastoral lease a year, 20 years, after its grant someone has chosen to build the homestead at this place rather than another place?

MR DONALDSON: Well, your Honour, in our respectful submission, the most logical and only logical answer to that is that native title is extinguished over the whole of the pastoral lease because - - -

HAYNE J: That would require you to reopen Wik, Ward, what else in this Court, Mr Solicitor? Do you seek to do so?

MR DONALDSON: No, your Honour, we do not, but your Honour asked me a question and I answered it, your Honour.

HAYNE J: Yes.

MR DONALDSON: But I did so, your Honour, leading into it with, in our submission, the only principled basis upon which De Rose can be defended, in our respectful submission.

HAYNE J: Do you seek to defend it?

MR DONALDSON: In relation to mining leases, your Honour, no, we do not, and we do not make submissions in relation to De Rose in relation to pastoral leases which is why we have not sought to reopen Wik or – I am not so sure about Ward actually, your Honour, but certainly we have not sought to reopen Wik which it would have been - - -

HAYNE J: Well, do you seek to reopen Ward, Mr Solicitor? We need that on the table at some point in the debate. Do you seek to reopen Ward?

MR DONALDSON: No, your Honour, there is nothing on the proper understanding of Ward that requires reopening. Can I say, your Honour, it is obvious that there are passages in Ward that have been construed differently, not only by the parties in this case, and so no doubt those matters will be clarified by the Court, but on what we submit to be the proper understanding of Ward, your Honour, we do not seek to reopen. We rely upon it, your Honour.

Could I make one further submission, your Honours, in relation to a matter of fact? It is dealt with in Justice Bennett’s judgment at paragraphs 49 to 50. That is at volume 1 of the appeal book at page 249 and through to 250. So, your Honours, at paragraph 49 your Honours will see that there is a reference there to areas of 249SA, that is section 7, 8 and 9 of mining lease 249 which were not currently the subject of any permanent construction works or productive mining. Then, your Honours, at paragraph 50, after about five lines, there was evidence before her Honour and her Honour made findings that:

Any future mining operations at Ord Ridley would be likely to entail the construction of a small crushing and screening plant and a rail spur off . . . a 7 kilometre haul road to the rail line . . . construct a maintenance workshop and facilities for fuel and water storage, a small administration office and a secure, fenced –

et cetera. So there was evidence as to the activities that would occur in the future or were proposed to occur in the future in relation to those particular areas. Your Honour, over the page at paragraph 52 which deals with sections 1 and 2 of ML 249SA and 235, so your Honours will see there three lines down:

the land the subject of Lease 235 and sections 1 and 2 of Lease 249 contains an expected magnetite resource of about 2.7 billion tonnes with the mining depth estimated at 200 metres.

Her Honour also determined in the next paragraph that the exploitation of that would require large quantities of water and in 54 an extensive drilling program beforehand.

Now, again, the relevance of that is simply to illustrate that, and it becomes particularly apposite when one comes to consider the form of any kind of De Rose determination in this matter that there is future mining proposed on these particular mining areas. Now, if and when that mining activity occurs then on the form of determination that was made by Justice Bennett there would have to be ongoing variations to that determination to accommodate the mining activity which is set out by her Honour here.

Can I also make this observation, your Honours, that those foreshadowed activities that I took your Honours to – I am sorry, your Honours, before I go on with that could I also ask your Honours quickly to turn to pages 205 and to 208? This was the primary evidence upon which her Honour relied for those particular findings. Your Honours will see on page 205 in paragraph 9 is the reference to sections 7, 8 and 9.

Then over the page, your Honour, at 208 your Honours will see paragraph 25. That is the reference to there being a resource of “2.7 Billion tonnes” on 235 and sections 1 and 2 of 249, and there is a reference there to the iron content of that particular ore. So, these are not mining leases, your Honour, in respect of which it can be said that all mining activity or other activity has ceased for all time. We do not say that is relevant, your Honour Justice Hayne, of course.

The observation I was going to make, your Honour, before I went back to that evidence was simply this: that in the event, and to the extent that those activities occur in the future no further tenure is required. All of those rights can be exercised and all of that work undertaken pursuant to the mineral leases that have already been granted.

Your Honours, can I then move to the notion of inconsistency and make submissions in relation to the notion of inconsistency which, in our submission, underlies all questions of extinguishment of native title, certainly at common law or general law. That an inconsistent statutory right extinguishes a native title right, your Honours, is clear and clearly established by many authorities in this Court, in particular Ward.

What “inconsistent” actually means is a matter that has attracted less attention. It did not attract attention in Ward itself because the Court was unable to consider the matter in detail because there were no determined rights. A number of things are however, your Honours, clear. As Justice Hayne has alluded to, the inconsistency analysis is an objective one as between the legal nature and incidence of the statutory right as against the asserted and, in this case, determined native title rights.

I will take your Honours now, if I may, to an extract from the majority judgment in Ward. If your Honours could turn please to paragraph 78 of Ward [2002] HCA 28; (2002) 213 CLR 1. Your Honours, if I could ask you to turn to page 89, please. Paragraph 79, 10 lines from the bottom, is the authority for that proposition and your Honours will see the sentence “That is an objective”, so reading up, the grant of title to a third party:

the question is whether the rights are inconsistent . . . That is an objective inquiry –

If I could leave your Honours to read the balance of that paragraph. Could I pause there to observe, it is why evidence was led in this matter as to the activities that were undertaken on the land because it informed an appreciation of the rights able to be exercised pursuant to the mining leases here.

Could I ask your Honours also to turn to paragraph 80? This is the part of the judgment where their Honours are dealing with Justice Lee and Justice North’s view of extinguishment at trial and in the Full Court. If I could leave your Honours to read paragraph 80 to about line 10. Again, your Honours, that is an unquestioned proposition. Then your Honours, on paragraph 82, their Honours are dealing there with Justice North’s view in the Full Court and your Honours will see that what is said there is this approach, that is Justice North’s approach to extinguishment:

as understood with respect to the withdrawal of recognition by the common law should not be adopted. First, it is an approach which proceeds from a false premise, that there can be degrees of inconsistency of rights . . . Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.

Then, your Honours, at the bottom of that paragraph, the point is made there is no suspension of native title.

So again, your Honours, if there is a determination of rights being inconsistent, then the native title rights are extinguished. If I could pause there for a moment to ask your Honours to turn to the determination which is actually made by the Full Court in this matter? That is in volume 2 of the appeal book at page 554, and order 9. So your Honour will see that – and it is prefaced by “Except as otherwise provided by law”, but:

the relationship between the native title rights and interests described in paragraph 4 and the Other Interests –

and I will come to what they are in a moment –

is that:

(a) to the extent that any of the Other Interests are inconsistent with . . . native title rights . . . continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests –

that is, they are suspended. Then your Honours will see (b). “Other interests” your Honours will see defined on page 555, referring to “Schedule Four”. That is at page 563. Certain of the other interests, your Honours, at the bottom of page 563 are, of course, the mining interests here. Of course, the majority in the Full Court determined that there was no – or seemed to determine that there was no inconsistency between any of the rights here, and so that determination could be made, but it does not detract from the clear proposition of principle that an inconsistent native title right is extinguished.

It also follows, and again it is a trite proposition - I can take your Honours to authority if required and this fallacy, if I might say, lays at the base of Justice Barker’s judgment, with respect – that simply because a native title right continues over time that is, in effect, enough. A native title right can be extinguished even if it is exercised or purported or sought to be exercised or even if native title exists and traditional connections exist over a particular area. It is not enough to simply point to the fact that native title rights have been able to persist over a particular area since the grant of a title. Your Honours, there are no circumstances at common law in which of course native title rights can revive after they have been extinguished.

Your Honour Justice Hayne, we adopt entirely what your Honour stated a moment or two ago. Inconsistency is and can only be determined at the time of the grant of the title that purports to be inconsistent with native title rights. That determination of inconsistency must be undertaken at that particular point in time and it is the difficulty – or the fundamental difficulty with De Rose is reconciling the decision in De Rose with that basal principle.

Your Honours, the big question left unanswered in Ward, because it did not arise in Ward, is, what does “inconsistent” actually mean in this context? It has been variously stated in a number of decisions, and we have set certain of those out in our written submissions, your Honour, and I will not take your Honours to all of them, but can I take your Honours to one, and it is in the judgment of Sir Gerard Brennan and Justices Dawson and McHugh in Wik 187 CLR 1 at 87.

Now, I am aware that their Honours dissented in that case, but the decision in Wik, your Honours, of course involved the consideration of questions, and they came down really to the question of whether a pastoral lease conferred exclusive possession and, if so, whether that was necessarily inconsistent with all native title rights. So, the question of inconsistency was not really dealt with squarely, but three of their Honours in Wik considered this issue. If I could ask your Honours to look at the paragraph commencing, “The law can attribute priority”. Rather than me read it, if I could ask your Honours to.

HAYNE J: Sorry, what page?

MR DONALDSON: Page 87, your Honour.

HAYNE J: Thank you.

MR DONALDSON: So it seems that what his Honour was there postulating was a test of two rights that cannot both be exercised at the same time. Now, were that the test, and that is, at the same time, at the same place, if that were the test then, with respect, virtually every title – well, many, many titles would extinguish native title and distinguish all native title rights. The question is asked, can a particular native title right be exercised in the same place at the same time as a particular statutory right, and if they cannot then the native title right is extinguished. That would result in fairly extensive extinguishment. It is what we refer to in our written submissions, your Honours, as “the logical test”.

The other extreme, if I can put it that way, your Honours, is really where Justice Barker and Justice Greenwood came to in the decision below. Before taking your Honours to passages of their Honours’ judgments, can I seek to encapsulate their Honours’ test of extinguishment in this way? If it can be conceived that over time and over the entire area of a title, a native title right can be exercised without interfering with the statutory right, then they are not inconsistent, and so for Justice Greenwood, yes, I can conceive of that because I can conceive that a miner may not be working on every part of the lease at every time.

More simply, of course, that answer is always, “yes, I can conceive of this because a title might cease”. So I can conceive of it because that particular title may come to an end and if that title comes to an end then, of course, native parties can be exercising rights, and on that particular formulation - and I think Justice Barker is fairly clear on this - on this particular formulation it will be rare, if ever, that there will be inconsistency.

Could I take your Honours quickly to where Justice Barker, in particular, deals with this? In volume 2 of the appeal book at page 510 and paragraph 464 and over onto page 511, your Honours, so:

Where there is no actual conflict of rights, for example because the native title right has not been exercised to produce actual conflict, why should the question of inconsistency or extinguishment arise at all? In my view, it does not -

So pausing there, there is an even better example of there never being inconsistency. Well, if you can conceive of a native title right not being exercised at a particular time, then there will not be inconsistency -

The most that can be said is what was said at [150] in Ward in the joint judgment, that in some circumstances statutory rights may be “incapable of identification in law without the performance of a further act or the taking of some further step . . . and that may well need to be regarded in identifying the rights created by statute said to be inconsistent with a native title right or interest. However the issue may be considered to be an exceptional one -

Then, your Honours, at paragraph 470 this, with respect, is simply a clear divergence from what was determined in Ward. His Honour considers that -

the clash of a statutory right, upon exercise, with the exercise of an indigenous right simply means that the exercise of the statutory right (in the event of actual conflict) has the effect of preventing and prevails over the native title right to the extent of the conflict, but only for so long as the exercise of the statutory right in fact prevents the enjoyment of the native title; and so there is no extinguishment of any relevant native title right upon the exercise of the statutory right in such a case.

His Honour is simply saying there that there is a non-extinguishment principle that applies on every occasion of there being an issue of suggested inconsistency.

Your Honours, the best answer to Justice Barker’s postulation at 470 is not only that it is contrary to Ward but is, with respect, in Justice Bennett’s judgment. Could I ask your Honours to have volume 1 of the appeal book and turn to page 306? It is really how her Honour characterises this sort of analysis, and it is page 306 at paragraph 205, and her Honour is referring to the applicant’s reasoning which was picked up by Justice Barker. Her Honour says there:

the applicants’ reasoning seeks to enlarge the concept of prevailing rights to such an extent that most granted rights would not operate to extinguish native title rights on the basis that they can merely prevail over those native title rights. It is important to note that the fundamental question is whether the granted rights and the native title rights are inconsistent and not whether one can prevail over another. A reverse analysis may result in every possibility of inconsistency between two sets of rights being answered by the fact that the granted rights can merely prevail over the native title rights.

With respect, her Honour is entirely right, that Justice Barker and Justice Greenwood’s analysis of these matters is simply and squarely inconsistent with Ward, to the passages of Ward that I have taken your Honours to, paragraph 78 through to 82. Your Honours will be taken by my learned friend, Mr Walker, to paragraph 308 of Ward. It was referred to by Justice Barker in the passages that I took your Honours to. It is referred to also by Justice Greenwood as, as it were, the basis of certain of their Honours’ reasoning.

Without taking your Honours to Justice Greenwood and Justice Barker’s judgments in that respect, Justice Greenwood refers to it at paragraph 427 and Justice Barker at paragraphs 458 through to 459. Their Honours’ contention is that paragraph 308 of Ward provides for this notion of prevailing and, your Honours, the words – 308 is a rather lengthy paragraph unfortunately, but the words that are relied upon by my learned friend and by Justices Barker and Greenwood are the words on page 166. I will come back to the rest of the paragraph, but the passage that is trotted out all the time, your Honour, is - your Honours see about 10 lines from the top:

The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity.

Now, from that, your Honour, is extrapolated a number of notions. One is, we think, De Rose – that is that it is the actual performance or doing of the - or exercise of the rights, but also the exercise of the right may prevent the exercise of some native title rights. It is preventing the exercise of them which has been converted into this prevailing notion.

Now, a number of things, your Honours, can be said about this paragraph 308. Firstly, your Honours, to read it in the way that it often is, and which Justices Barker and Greenwood did below, simply ignores what not only their Honours in the joint majority judgment but also, of course, Justices Callinan and McHugh, had to say as to extinguishment as matters of principle, and they were dealt with in paragraph 78 through to 82 to which I have taken your Honours, but it also overlooks, your Honours, the context of paragraph 308. Paragraph 308 - - -

HAYNE J: Justices McHugh and Callinan reached a different conclusion about mining rights from the plurality.

MR DONALDSON: They did, your Honour. Your Honours, they were able to determine that the exercise of rights under a mining title would be inconsistent with native title rights, and their Honours found that. The majority judgment, in my submission, did not form that – I will come back to the majority judgment in relation to mining leases, but the answer to your Honour’s question is yes, that Justices McHugh and Callinan would have found that mining leases extinguished all native title rights.

Paragraph 308, your Honours, is to be read in the context of 307. Paragraph 307 makes it clear that what 308 is referring to and dealing with is attempting to give some meaning to the notion which is a troublesome notion of a right to exclusive possession for mining purposes. Paragraph 308 deals with an explanation of what that notion of exclusive possession for mining purposes might mean. Really, all that 308 says, in our submission, your Honours, is when we have a notion such as exclusive possession for mining purposes, there may be other purposes other than mining purposes and they may not be necessarily inconsistent with all native title rights, and 308, with respect, is to be understood in that way. If Justices Barker and Greenwood and what my learned friend will put to you is right, then it is hard to reconcile that with paragraph 296 of Ward, again in the majority judgment.

FRENCH CJ: Do you accept that it is not sufficient to demonstrate inconsistency of a non-indigenous right with a native title right, that the former may be exercised in a way that precludes or prevents at a particular time or in a particular place the exercise of native title rights?

MR DONALDSON: Is your Honour asking whether we put to your Honour that the test is - - -

FRENCH CJ: I am just asking whether you accept that it is not sufficient for inconsistency of rights that the non-indigenous right may be exercised in a way that prevents the exercise of native title rights.

MR DONALDSON: We do accept that. That is, your Honour is asking whether what we have referred to as the logical test in our written submissions is the criterion - - -

FRENCH CJ: Well, I just put it as I put it.

MR DONALDSON: Yes, well, I have given your Honour my answer. We do accept that, your Honour. We will come to tell your Honours what we think “inconsistency” means, but we do not put to your Honours that it means that. Could I simply refer your Honours to paragraph 296 of Ward, which accepts that there can be extinguishment of some native title rights by the grant of a mining lease?

HAYNE J: It begins from the premise that the grants of mining leases cannot be said to be:

necessarily inconsistent with the continued existence of all native title rights and interests.

MR DONALDSON: Quite. All I am saying, your Honour, is - - -

HAYNE J: And it is at that point that the Court divided.

MR DONALDSON: Yes, and your Honour was part of the majority judgment. Your Honour went on to accept:

That some native title rights and interests were extinguished in some areas of the mining leases is not in doubt.

HAYNE J: The example given in Ward was the right to control access. That was extinguished.

MR DONALDSON: Yes. In that particular instance, your Honour, yes. But, your Honour, the point of referring the Court to paragraph 296 is if the view that is taken of what paragraph 308 means is the view that has been adopted by Justice Barker and Justice Greenwood then paragraph 296 would be inconsistent with that.

HAYNE J: But do you begin, do you accept the premise from which paragraph 296 begins, namely that the grant of the mining lease, in this case, is not necessarily inconsistent with all native title rights and interests?

MR DONALDSON: We do not accept that in this case, your Honour.

HAYNE J: That is, you challenge the premise that underpinned the majority in Ward, do you not?

MR DONALDSON: No, because that case, Ward dealt, your Honour, with a particular mining lease which is not this mining lease, your Honour. These are – and it is been made clear in all the of the judgments – these are large and extensive mining leases that have more extensive rights than what might be referred to or thought of as customary mining titles. We put our submissions on that basis, your Honour.

FRENCH CJ: Well, they are not inconsistent because they are big.

MR DONALDSON: It is not only that they are big, your Honour - it is partly that they are big, your Honour, but it is also partly because of the nature of the additional rights that were specifically contemplated as being undertaken on these mining lease areas. Your Honour Justice French knows that it is pretty unusual to have towns built in Western Australia on mining leases, and this contemplated the - - -

HAYNE J: Be it so, it is not unusual to have a building on a mining lease, is it? What does the proliferation of number matter?

MR DONALDSON: Well, one relevance of it, your Honour, is that it gives rise to an understanding that there was a community there for a term of years. There were a large number of people living there as opposed to somebody living in a tent or in a shack. It was on a scale, your Honour, that is simply more extensive than under a conventional mining title.

Your Honours, I will – well, I will put to your Honours now that when one comes to consider inconsistency – before I get onto that, can I say to your Honours we do not put the proposition which your Honour Justice French put to me as the test which we would understand your Honour Justice French to be in essence paraphrasing Justices Brennan, Dawson and McHugh from Wik. We do not put to your Honours that that is the test, and quite obviously we do not put to your Honours that the test formulated by Justice Barker or Justice Greenwood, both of which are similar, is the test either.

KIEFEL J: But on your view inconsistency is reached by a process of degree. You put a certain number of things on a mining lease and you reach a point of saturation where there is inconsistency.

MR DONALDSON: It is determined, your Honour, as a matter of common sense, in our submission.

KIEFEL J: Is that an answer to my question?

MR DONALDSON: Yes, it is, your Honour, because - - -

KIEFEL J: Forgive me if I do not think it is.

MR DONALDSON: Because, your Honour, matters of degree are relevant to a consideration of whether matters are inconsistent or not.

KIEFEL J: What has a matter of degree got to do with the nature of the rights?

MR DONALDSON: Because, your Honour, when a trial judge – and I will take you to how Justice Bennett dealt with this in a moment. All that we have at the moment is a notion of inconsistency. If one wishes to formulate a test that what that means is can there be co-extensive exercise and, if there cannot, then the native title right is extinguished, then virtually every title will extinguish native title.

If it is not that test, your Honour, then one looks at the title that is being granted – in this case the title in the form to which I have taken your Honours – understood in the context of and having regard to the rights that were actually exercised, with an appreciation that what this mining title contemplated was the construction of towns, the construction of railways, the construction of a massive pit, and that was always contemplated, your Honours, in the terms of the agreement itself, which carried with it massive additional infrastructure and storage capacity and waste management and the like.

When one has regard to those rights and asks: they are the rights that I have to compare to what is at 320 of the appeal book, is it meaningful to say that they are not inconsistent? Justice Bennett asked that very question, your Honour. If I could take your Honour to how her Honour did deal with it. It is on page 304 in volume 1. Your Honours, we say that the process which her Honour went through was really as good as can be done. At paragraph 201 her Honour said:

I accept the submissions of the tenement holders that the granted rights to construct the mine and the town site, together with the associated infrastructure, and to work and utilise those entities and the land on which they stand, are inconsistent with the continued existence of any of determined native title rights . . . In my view, none of the determined native title rights can co-exist with the rights of the Joint Venturers to construct and work the developed areas of the Leases.

HAYNE J: Now, the developed areas of the leases are something that are identified after the event of grant – long after the event of grant.

MR DONALDSON: Quite. We say, your Honour, that her Honour erred in applying De Rose. Of course, her Honour was bound by it, but that is why her Honour is making the reference to the developed areas of the mine because her Honour went on to make the De Rose-type determination.

HAYNE J: But does it therefore follow that because a mining lease would entitle the lessee to put a hut anywhere on the mining lease for the purpose of storing his or her tools by which the mine will be worked that, therefore, no native title can exist over any part of the lease?

MR DONALDSON: Your Honour, I will avoid answering your Honour’s question by saying this, with respect, that the correct question to be asked is not breaking up the rights in the way that your Honour’s question does. The correct approach, with respect, is to ask: well, here are the totality of the rights, one of which is to build a hut that somebody can live in. But here are the totality of the rights that can be exercised. Is that totality inconsistent with the identified native title rights?

HAYNE J: What the phrase “totality of the rights” is obscuring is the content of the rights and until one spells out the content of the rights embraced by this phrase “the totality”, the argument does not proceed very far I think, Mr Solicitor.

MR DONALDSON: Well, with respect, your Honour, not so because in this case there is a clear conception of what the totality of the rights in fact are because there was evidence led as to what was actually lawfully done. So when one comes to consider inconsistency, not only does one have, well, a right to mine means a right to dig a hole; does that mean a one foot hole or does that mean a 132 metre pit? In this case, what the rights are - the totality of them, the word I have used, but perhaps the full expanse of them, your Honour, would be as good a term - there is a very clear appreciation of that and there was a very clear appreciation for her Honour.

KIEFEL J: Justice Bennett says that the rights are analogous to rights of exclusive possession.

MR DONALDSON: I will come that, your Honour, if I can, but can I just – I will come to exclusive possession in a moment before I get to Justice Gageler. Could I say one other thing, Justice Hayne, to finish off your Honour’s question, and we would say that because those rights, understood in the way that I have put them to your Honour, can be exercised lawfully over the entirety of the lease area, it extinguishes native title over the totality or over the whole of the lease area. Sorry, Justice Gageler?

GAGELER J: You told us earlier that the case turns on the meaning of “inconsistent” in this context. Could you please state exactly what you say “inconsistent’ means?

MR DONALDSON: No, I cannot, your Honour, because I cannot do better than “inconsistent”.

GAGELER J: It just seems to me that issue as you framed it is one that you are not attempting to resolve.

MR DONALDSON: Well, we are, your Honour, because we accept that using different words like “prevail over” or “incompatible with” or “inconceivable that they can co-exist” or whatever other term is to be used – and in our written submissions, your Honour, we have gone through – “abrogates” is another one that gets used from time to time, your Honour. To simply substitute a word like “abrogate” for “inconsistent” does not advance inquiry.

What advances inquiry, in our respectful submission, is to understand that what lays at the base of it is inconsistency. That requires, your Honour, an appreciation of the whole of the rights able to be exercised and then asking the question, which Justice Bennett does, and if one likes the phrase “whether they can co-exist” or “whether they are abrogated”, in our respectful submission, it does not really advance things particularly far using those sorts of terms. It is, your Honour, a practical assessment that must be made at this level with a - - -

KEANE J: But why is not the question whether the two rights cannot be exercised at the same time by different persons?

MR DONALDSON: Your Honours, in our – well, there are a couple of reasons for why I do not say that that is the test, your Honour. One is that that would require a reopening of every native title decision in this Court, and we have not sought to do that, although I have taken your Honours to Chief Justice Brennan’s judgment in Wik which was his Honour’s formulation.

Were that to be the test, your Honour, then it would undoubtedly follow from it that virtually every title, the grant of every title, would extinguish virtually all native title rights. It would be difficult to conceive otherwise.

Again, your Honour – and I think, your Honour, when one looks at a decision like De Rose, in our respectful submission, the Court has tried there to deal with a response to the logical test that your Honour has put and come up with what their Honours have come up with. I think having regard, your Honour, with respect, to the notion that, well, when you are talking about a pastoral lease that can involve many hundreds of thousands of hectares and a house that can be put on 500 square metres somewhere there to conclude that the construction of a house which could be done anywhere extinguishes the whole of native title over the whole of the pastoral lease is just not a sensible solution.

I think what underlies De Rose is a response to, I think in a sense, the extremity of the conclusion that would follow what your Honour has put to me. If that is the test, your Honour, I am sure people will live with it.

KEANE J: In terms of the totality approach that you are urging on us and that Justice Bennett applied, her Honour says:

The rights exercised within the developed areas are analogous to rights of exclusive possession.

But, if one tests this question of inconsistency, as I think all are agreed one does at the date of grant, the right of exclusive possession at that date is the right to exclude all others. The right to do things on the land can be exercised without excluding all others. If someone tries to interfere with the carrying on of that exercise of that right one might get an injunction, so why are the rights to do these things analogous to a right to exclude all others?

MR DONALDSON: I think the answer to that, your Honour, is with this notion of exclusive possession, because one of the questions asked of her Honour of course is did the titles there confer a right of exclusive possession?

KEANE J: If they do not, if the mining lease does not confer the right of exclusive possession over the totality of the land, the analogy just breaks down, does it not?

MR DONALDSON: Can I answer your Honour’s question by moving to our submissions on exclusive possession, because I think the query in your Honour’s question is the query which underlies the role the notion of exclusive possession plays in this entire area of the law. Of course, the notion of exclusive possession is now entrenched in the Native Title Act and it flowed really out of the Wik decision because the question in Wik was – it was before that. There were references before, but the question in Wik was, did the pastoral lease confer exclusive possession, that is, was it a lease as opposed to a licence or some lesser statutory title?

So there was a focus upon the notion of exclusive possession but as Justice Gummow has made clear in a number of his Honour’s judgments, in some respects focusing upon exclusive possession here, in relation to native title, might be thought to confuse more than assist because the question – what exclusive possession tells you is, well is it a lease or a licence. The question here is really do you have inconsistent rights? If you have a right to exclude, that does not connote necessarily that you have exclusive possession. In some judgments, not of this Court, but in some judgments, often the notion of a right to exclude and a right of exclusive possession are conflated.

If one looks at Fejo, for instance, and it might be useful if I could ask your Honours to turn to Fejo quickly - Fejo [1998] HCA 58; 195 CLR 96 and the relevant part of Fejo is in the majority judgment, paragraphs 43 through to 46, and particularly 43. So this was the contention that a fee simple did not extinguish native title because a fee simple title may come to an end.

FRENCH CJ: Page?

MR DONALDSON: I am sorry, your Honour, 126.

FRENCH CJ: Thank you.

MR DONALDSON: Paragraph 43:

These contentions must be rejected. Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights and interests which together make up native title. An estate in fee simple is, “for almost all practical purposes, the equivalent of full ownership of the land” and confers “the lawful right to exercise . . . It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute -

What their Honours are saying there, with respect, is it is actually the quality or extensive nature of the rights that are conferred rather than a right to exclude somebody because there are very, very many titles that confer upon the whole of that title a right to exclude people from the land, very many. But Fejo does not say a fee simple title confers a right of exclusive possession and that is inconsistent with native title. Fejo says a fee simple title is a very large bundle; it is everything we can think of and because of that it is necessarily inconsistent with native title rights.

It is why we say, your Honour, in this case that when one looks at the nature of the rights able to be exercised here, they are as large a bundle, or they are an extremely large bundle. They not only confer the customary rights to mine but they confer the other rights which I have taken your Honours to, along with a prohibition upon resumption and a prohibition upon a rezoning to disentitle particular activity on land.

HAYNE J: What does that matter at all, Mr Solicitor? Yes, it matters as a matter of commercial reality to the producers, I am sure, but what does it matter to the native title analysis - - -

MR DONALDSON: Because it is a - sorry your Honour - - -

HAYNE J: You cannot resume and you cannot rezone?

MR DONALDSON: Because it is another feature of the rights which the parties have which go to an appreciation of the rights exercisable under the mineral leases as being as extensive a right as one can consider or conceive of, short of perhaps a fee simple title.

These titles confer rights that the holder of a fee simple title does not have. That is the point of my observation, your Honour. Your Honours, if I could get back then to exclusive possession – it is too late to go back on exclusive possession, your Honours; it is an entrenched part of native title analysis and it is accepted that the conferral of a right of exclusive possession is inconsistent with native title. But as Ward made clear, there are some titles that confer a right to exclude for certain purposes that do not confer a right of exclusive possession.

KIEFEL J: Are the rights here any higher than the right to exclude if the native title right sought to be exercised interferes with mining activity or associated activities?

MR DONALDSON: It is the provision of the State agreement that I took your Honour to earlier which sets that out and, in addition - - -

KIEFEL J: Are they any higher than that?

MR DONALDSON: No. Well, you cannot interfere - - -

KIEFEL J: Is not Ward an answer to it then?

MR DONALDSON: Sorry?

KIEFEL J: Is not Ward an answer to the nature of the right that you just conceded?

MR DONALDSON: Your Honour, we are not strongly putting to your Honours that these titles confer an unfettered right to exclude, which some may think means a right of exclusive possession and therefore is inconsistent with all native title rights for that reason. In our respectful submission, in all of these questions of extinguishment of native title, the principal issue is one of inconsistency of the rights rather than seeking to characterise a title as conferring a right of exclusive possession. But again, in further answer to your Honour Justice Kiefel’s question, if the question is one of does it confer a right of exclusive possession, then guidance is given by the judgment in Ward in relation to the titles that were there found to confer that right, and to therefore extinguish all native title. Your Honours will recall that in Ward, there were a number of titles that were found to give rise to extinguishment of native title. One of them was special leases, and we have set those out in our written submissions, your Honour.

But your Honour, could we make this observation in relation to that? If one looks at the quarrying special lease which was found to confer exclusive possession and therefore extinguish all native title rights, the right to quarry was not a right that would necessarily be exercised over the entirety of the special lease area. The right to exclude was only a right to exclude to the extent that it would interfere with the rights exercisable under the special lease.

HAYNE J: What passage of Ward are you referring to there?

MR DONALDSON: If your Honour could bear with me for a moment, I will turn that up. That is paragraph 368, your Honour. That is at page - - -

KEANE J: Page 181.

MR DONALDSON: Page 181, thank you. So your Honours will see at 368 – so there was a lease granted in 1977. So this was actually a consideration of the statutory exclusive possession regime:

The reference to s 116 was, for the reasons just given . . . The term of the lease was one year, renewable from year to year, but determinable . . . The term was said to commence . . . Having regard to the requirements of the Land Act 1933 . . . the grant of a lease occurred on 29 September 1977. The lease was for the purpose of grazing. The lease provided that the Crown might resume and enter upon possession of part of the lands for various purposes in the nature of public works. Power was given to the Crown to take timber, quarry, search for minerals and the like. Minerals and petroleum were reserved to the Crown. There was a proviso for re-entry. The lease recorded that it was issued subject to the condition that the public should have “free and uninterrupted use of the roads . . .

The lease that was granted was not a statutory interest in land. The features of the interest granted were not prescribed by the Act but were determined by the nature of the agreement reached and the grant made. [Grants] were, therefore, rights as lessee of the land, as that term is understood in the general law . . . a right of exclusive possession of the land.

There is another passage, your Honours, at 346. So this was actually a permit to enter that was found to extinguish native title – sorry, conditional purchase lease is the same thing. This is at 346 on page 177:

Rather, following resumption in 1918, the area the subject of the conditional purchase lease, as part of a larger area of land, was reserved for a purpose . . . As Lee J found . . . a permit to occupy this land was issued under s 16 of the Land Act 1898 to the Wyndham Freezing Canning and Meat Export Works . . .

Section 16 of the Land Act 1898 provided that after payment of the purchase money and fee payable for a Crown grant, and having performed all conditions, a purchaser would, on application, receive a permit to occupy, being a certificate that the purchaser was entitled to a Crown grant.

That is, you could go and then seek a fee simple. So it was not a fee simple title. Then 349:

The majority of the Full Court, contrary to the opinion of Lee J, rightly held that the grant of the permit to occupy wholly extinguished any native title rights and interests in the land.

HAYNE J: The hinge about which those conclusions turned and the two examples you have given us was that the person having the interest had a right to exclude all others from access to the land. The right to exclude all others from access to the land is a right which is not consistent with others entering the land, whether for usufractory purposes or other purposes. Where do we go from that observation, Mr Solicitor?

MR DONALDSON: Well, if as your Honours says those titles were on – can I say, your Honour, I am not sure that that is entirely clear from the judgment, with respect, but if – and I am obviously not doubting what your Honour says.

HAYNE J: Five out of 10 for the judgment, be it so, Mr Solicitor, but go on.

MR DONALDSON: If the point of principle to be extracted from that, your Honour, is if the right to exclude which is conferred is a right to exclude all others for any reason or no reason, then that obviously, your Honour, is inconsistent with any native title right.

HAYNE J: Yes.

MR DONALDSON: It is not a very large step, however, your Honour, from that proposition to this proposition. That if you have a right to exclude – if you are a minor and you have a right to exclude anybody who may be interfering with your activities, that that extinguishes anybody going onto your land in a manner that may interfere with it. When one is talking about a 132 metre deep pit and dynamite storage facilities and the like then, in our respectful submission, that is a distinction without a difference.

FRENCH CJ: Those are demonstrations of things which could be done, pursuant to the rights granted.

MR DONALDSON: I am sorry, your Honour?

FRENCH CJ: Those examples – a pit to which you frequently refer – are demonstrations of things that can be done in the exercise of the rights granted under the lease.

MR DONALDSON: Yes, correct. We do not say that it was the undertaking of them that gave rise to extinguishment. Can I just give your Honours one other example of perhaps inconsistency from Ward? Paragraph 194, on page 131, which is the passage which deals with burning, there was the right to light fires being inconsistent with various of the statutory rights that were granted there.

If I could go back to Justice Keane. The notion of exclusive possession as it has been used in some of these cases is, at times, a difficult one. If what exclusive possession means, in this context, is that what we are talking about is the right to exclude anyone for any reason or for no reason, and that is inconsistent with native title and those cases are confined as understood in that way, all well and good but, your Honours, the principled distinction between that sort of right to exclude and the right of a holder of a title to exclude if it interferes with the exercise of your rights under the title is a pretty fine one, in our respectful submission.

Could I conclude, your Honours, because we do have an understanding as to time, by dealing quickly with De Rose, and I have said something about this already which I will not repeat. The decision in De Rose, which her Honour Justice Bennett followed at trial and, of course, Justice Mansfield followed as well, is, with respect, difficult to distinguish from the notion of operational inconsistency, even though the notion of De Rose is that native title right was extinguished at grant, but that extinguishment was, as it were, inchoate until activity was actually undertaken. That is a fairly fine distinction, and the difficulty which the De Rose analysis, your Honours, gives rise to is clearly demonstrated in this case.

If I could make that proposition good by asking your Honours please to turn to volume 1 of the appeal book at page 320, and that is her Honour Justice Bennett’s determination, so at order 3 on page 320 your Honours will see:

Native title does not exist in relation to those land and waters of the Determination Area identified in the Third Schedule and shaded green on the maps –

and that is the map at page 326. We gave you a larger one of that and of course the extinguished area is the green hashed area on that map. Well, the logic of De Rose is that in the future if BHP or anyone else goes on to this land to further mine it or undertake further exploration work or exercise further rights on it, this particular determination will have to be varied logically on a minute by minute basis, and that is quite plainly, in our respectful submission, what – or not what the Native Title Act provides for. The conundrum in - - -

KEANE J: Why is that so? Why would it not just operate – why would not clause 5 operate in conjunction with clause 6, which is the native title rights set out in 5 to the extent that they have not been extinguished - are exercisable in accordance with the laws of the State including the common law?

MR DONALDSON: Well, that may have been a different formulation of a determination, but the determination that her Honour actually made and the problems with De Rose are illustrated by the order which her Honour actually made at 3 and what De Rose requires. It might have been possible to come up with a different form of determination that dealt with the matter differently, but a determination in that broad way, your Honour, would not give a particularly clear delineation of where native title had been extinguished over an area of the mining lease.

It may be difficult to walk onto it and know, well, it has been extinguished here or not extinguished there. That is why, your Honour, in our submission, the question simply – or the issue simply does not arise. If these rights, what I have referred to as the totality of rights, can be lawfully exercised over the whole of the mining lease area, native title is extinguished over the whole of the mining lease area, full stop.

FRENCH CJ: So let me just put this at a level of general principle, if you like - and it is revisiting something I put to you before, I think. So you have a statutory right, one, which says you may do activity X anywhere on the land, subject to the grant. You have a native title right which says you may do Z anywhere on the land. Those two things, X and Z, those activities, cannot be done at the same place in the same time. Do you say those rights are inconsistent?

MR DONALDSON: Well, if they cannot be done at the same place at the same time, they are inconsistent, your Honour.

FRENCH CJ: Because of?

MR DONALDSON: Because they cannot be done - - -

FRENCH CJ: So how does that differ from the position of the pastoral homestead?

MR DONALDSON: Because, your Honour, we are seeking to answer that quandary in a practical way that does not give rise to extinguishment in every circumstance of a title.

FRENCH CJ: It becomes a matter of degree then?

MR DONALDSON: Well, I have referred to it as practical common sense or degree.

FRENCH CJ: Well, it is a matter of degree, is it not? It is not a matter of principle that you are putting.

MR DONALDSON: Well, your Honour, matters of principle can be matters of degree and the question is perhaps best answered by saying, your Honour, well, it depends what is in X. If X is to build a house that you know is only ever going to be 500 square metres in a 500,000 hectare pastoral lease, well, maybe not, but if the question is, build this mine and this mining community over this mining lease - - -

FRENCH CJ: So do we look at the total area of the mining lease and the area occupied by potential town sites and pits and so forth and make a judgment?

MR DONALDSON: Well, with mining titles, your Honour, in our respectful submission, it is simple, or with these mining titles, your Honour, it is a relatively straightforward process, as her Honour Justice Bennett found. Here is what you can do, you can do all of these things, and her Honour came to the conclusion that she did.

If one breaks it down to the question which Justice Hayne put to me before, well, in exercise of the rights that you have got under a mining lease you can walk from point A to point B on the mining lease - undoubtedly so. Is that inconsistent with native title? Well, you may get an answer to that, but if one asks the question in relation to every permutation of everything that a person can lawfully do pursuant to their title then that is, in our respectful submission, a fairly sterile inquiry.

With these mining titles your Honour is aware that they were conferred over the area over which they were conferred. Your Honours have seen the substantial area that was the subject of mining and use, so your Honours know that it is not like a pastoral lease.

HAYNE J: It does seem, Mr Solicitor, in the end your proposition devolves to the larger the mining project the easier it is to extinguish native title. It is a rather unusual proposition, I think.

MR DONALDSON: Well, I would not put that as a submission of principle, your Honour, but in a practical sense, yes, I would say to your Honour, absolutely so. Your Honours, I would also say to your Honours that in relation to conventional mining leases it might also be difficult in many circumstances to conceive of how they do not extinguish

native title, but this case is not about those forms of tenure. This case is about the tenure that was granted in this particular matter.

Without pushing my welcome or my undertaking on time too far can I say this to your Honours? If your Honours require from me, well, that is not good enough, you tell me what your test of extinguishment is, then I put to your Honours what Justice Brennan said in Wik, which is what Justice Keane put to me a moment ago, and the consequence of that is as I have outlined to your Honours.

FRENCH CJ: Thank you, Mr Solicitor.

MR DONALDSON: If your Honours please.

FRENCH CJ: Mr Quinlan.

MR QUINLAN: May it please your Honours. I trust your Honours have a copy of our outline of oral submissions. They deal with what were the two issues expressed in the notice of appeal in the order in which they appear in the appeal, which is firstly dealing with the question whether or not the Mt Goldsworthy leases confer exclusive possession and then, upon the assumption, or if the conclusion is that they do not, dealing with how the question of inconsistency of rights may be dealt with and understood.

Can I commence, your Honours, by making some submissions in relation to the nature of the leases, and this is really going to what we say in paragraphs 2 and 3 of the outline of oral submissions as to what we say the leases are. In our respectful submission, the leases in this particular case, unlike mining leases under either the Mining Act 1904 or the Mining Act 1978, are true demises of the land in question which confer a right of exclusive possession which could be enforceable by action for trespass or ejectment.

In that context, can I take up a point that your Honour the Chief Justice raised with my learned friend as to the nature of the source of the grant of the leases and any difference, if any, between mineral lease 235 and mineral lease 249, your Honour having noted that whilst clause 8 of the agreement is one of the clauses picked up through section 4(2) of the Act, that clause 11 is not.

Our submission is this. The manner in which the authority to grant the leases derives is that they are granted as executive actions of the State pursuant to the obligations in the agreement. The leases are not statutory instruments. They are leases granted pursuant to the agreement. The purpose of the ratifying Act, which commences at page 9 of the book of legislation, and in particular section 4(1) which appears on page 10, is that:

The Agreement is approved.

So that the State has the executive authority to do that which has been agreed with the joint venturers will be done.

FRENCH CJ: That is a condition of the coming into effect of the agreement, is it not, the approval by Parliament?

MR QUINLAN: It is both. What it does is, it is part of the conditions of the agreement that it be approved, and it also ensures that the State has by approval or ratification the executive authority to have entered into the agreement. As in the same way, and we have identified the relevant cases discussing this in the context of State agreements in our written submissions at paragraphs 19 and 20, where the Full Court of the Supreme Court of Western Australia in the Re Michael decision, which is referred to in paragraph 14, applies the discussion in Sankey v Whitlam in relation to the distinction between legislation which authorises executive contracts to be entered into or approves them – that is the language used in Sankey v Whitlam, that they are either authorised prior to being entered into or approved once they have been entered into – distinguishing that from the conversion of the contractual rights into statutory rights which would bind, obviously, third parties.

The scheme of the Act, that is, the Iron Ore (Mount Goldsworthy) Agreement Act, is that for the most part, the agreement is simply approved as an agreement which is lawfully entered into by the State and which the State undertakes the obligations that are in it, and it is only in relation to selected parts of the agreement, which are set out in clause 3.2 of the agreement that appear on page 19 of the book of legislation, that those provisions take effect as if they had been enacted by the ratifying Act.

Now, the purpose of those provisions is, and if I can take your Honours to page 19 of the book of legislation which contains clause 3(2) of the agreement to which effect is given by section 4(2)(b) of the Act, your Honours will see it is subclause (2)(a) which identifies those parts of the agreement that are to take effect as though the same had been brought in to force and had been enacted by the Act.

Now, the purpose of that provision in the context of the agreement is that all of the provisions that are there referred to operate so as to amend or alter the operation of other State laws so that without section 4(2)(b) picking up clause 3(2)(a), various aspects of the agreement might be inconsistent with other State laws and it is those aspects of the agreement that are referred to in clause 3(2)(a).

For example, clause 8 which your Honour, the Chief Justice referred to, if I can take your Honours to that, clause 8 which commences on page 26, as my learned friend, the Solicitor for Western Australia, pointed out, in clause 8(2), there is both provision for the granting of the mineral lease over area “A”, which became mineral lease 235, and the granting of other tenures in other places under the provision of - and your Honours will see at the bottom of page 27 - the Mining Act, the Jetties Act or under the provisions of the Land Act as modified in subclause (2 ) of this clause.

Over the page, your Honours will see on page 29 clause 8(3) provides that for the purposes of those additional grants, various provisions of the Land Act are “deemed to be modified”, so that that is one the provisions which would necessarily require legislative amendment in order for the Land Act to be modified and so by section 4(2)(b), together with clause 3(2)(a) is so modified and if your Honours, and I will not take your Honours to them, but the same can be seen in relation to each of the clauses that are thereto referred, in clause 3(2)(a), that is, they make provision which would otherwise be inconsistent with another piece of State legislation.

Beyond those matters, the approval of the Act is simply to approve the executive authority to have entered into the agreement and undertaken the obligations that appear in the agreement including the obligations under clause 8(2)(a) and under clause 11(6) to grant the two mineral leases that are in issue in this appeal. So that in each case, in our respectful submission, the proper construction of the agreement as approved by the Act is that the mineral leases were granted by the executive authority to grant a lease over Crown land and not pursuant to either the Land Act, which otherwise had provisions for the grant of tenures, or the Mining Act 1904.

That is indeed, in our respectful submission, apparent from the terms of the leases themselves which, as my learned friend took your Honours to, on page 149 of appeal book volume 1, he used the language of a demise of land in a lease at common law, on page 149, at the bottom:

DO BY THESE PRESENTS GRANT AND DEMISE unto the JOINT VENTURERS as tenants in common in equal shares subject to the said provisions ALL THAT piece or parcel of land comprised in Mining Area “A” –

Then it goes on to additionally grant -

all those mines, veins, seams, lodes and deposits of iron ore –

And then in addition grants all of those -

together with all rights, liberties, easements, advantages –

that would pertain to a mineral lease under the Mining Act 1904.

HAYNE J: How does this instrument differ from an instrument granted under the 1904 Act?

MR QUINLAN: It depends upon what kind of land your Honour is referring to. For example, under the 1904 Act, a grant over private land, which was a mining lease under that Act, over private land, would not include a demise of the land itself. It would only include a demise of the mines, veins, seams, lodes and deposits of iron ore in or under the said land.

The types of leases that were granted over Crown land were similar and appear at page 328 of the book of legislation, although the conditions were obviously tailored to the Mining Act and refer to the purposes for which the mineral lease is demised, given that under those leases they would be demised for a particular mineral.

HAYNE J: This was too.

FRENCH CJ: Yes.

HAYNE J: It was demised for the purpose of iron ore.

MR QUINLAN: It was demised for a particular mineral, but the entirety of the land in addition to the mines, lodes and seams was demised.

FRENCH CJ: This is referred to, though, in the recital, prior to the language of demise, as a mineral lease, referring to what was agreed. When you go back to the agreement itself, you will see the term “mineral lease” is defined in clause 1 by reference to the generic concept of “mineral lease”. “Mineral lease” means the mineral lease referred to in clause – so it is being characterised by the agreement itself as a mineral lease, but it really only takes its meaning, does it not, from the Mining Act? It does not exist as some sort of animal outside that framework.

MR QUINLAN: We would say not, with respect, sir, that the definition of “mineral lease” in the agreement, which is the mineral lease referred to in clause 8(1), which in turn is the mineral lease scheduled to the agreement, is quite unique and sui generis in terms of - - -

FRENCH CJ: It may have sui generis characteristics, but does not the use of that language, and particularly the definition of “mineral lease” in terms of “the mineral lease”, in other words, it is characterising what appears in the schedule and is referred to in clauses 8 and 11, does that not tell you something about the nature of the lease that is being contemplated, which is not answered by a reference to “demise”?

MR QUINLAN: It may tell something about it, but as with the words “demise” - and I think this is the point that has been made on a number of occasions, both in Ward and in completely different context in Tec Desert, for example - that each of those expressions must be read in light of the particular statutory or contractual context. Now, in relation to the word “demise”, it is, of course, the authority of the Court in Wik that it is not conclusive that it is a demise of the land but, as his Honour the Chief Justice, Chief Justice Gleeson in Warren v Anderson – no, Wilson v Anderson, I am thinking of West Australian personalities - in Wilson v Anderson had to say, whilst it is not conclusive, it is still relevant and provides what his Honour in that case described as the primary impression of what the lease was intended to do. Now, in this case the lease which was granted, described, we accept, as a mineral lease, was intended to do much more than a mineral lease which could be granted under the 1904 Act.

HAYNE J: Why? Under the 1904 Act the words of “grant” and “demise” were used - see page 328 of the bundle of documents at the last three lines. Yes, the agreement provided for both the producers and the State to undertake a wide range of other obligations. What is it that the lease does that is more or different so far as the right to control access to the land?

MR QUINLAN: We would come at it from two directions, sir. One is the language which we say is the language of a demise outside a statutory context such as the Mining Act 1904, which provides further context in which to understand the particular grant; that is, one has to go to the 1904 Act to see what rights are conferred upon the holder of any particular tenement or miners right under that Act, as with the 1978 Act. One does not have to go to another Act to identify what rights are conferred by a lease of Crown land issued under Executive authority which demises all of the land and the mines together with any rights that might be found in the 1904 Act.

That is the difference in language, and the difference in purpose is that the purposes to which it is intended that the user will put the land under the lease will inform whether or not it is necessary for the purposes of the lease that the lessee have the right to control access by others by way of a right of exclusive possession. That, in our respectful submission, is the conclusion that underpins the finding of this Court in the plurality judgment in Ward –

HAYNE J: Just before you come to that, to the extent to which your argument depends upon some difference in wording between the leases which are immediately at issue and the form of 1904 Act lease, it may be useful if you produced a comparative document which revealed the differences upon which you depend.

MR QUINLAN: Yes, if it please your Honour. Can I take your Honours to Ward [2002] HCA 28; 213 CLR 1, and this is, to identify where I am in the oral outline, paragraphs 5 and 6. In Ward at page 179 in the judgment of the plurality – sorry, it is not 179, it is page – yes, it is on page 179 – this is the point at which their Honours in the plurality were considering special leases granted pursuant to section 116 of the Land Act which were statutory instruments. There is a reference firstly to the interests not being as precarious as pastoral leases, which appears at paragraph 355. In paragraph 356 is the passage to which we would, in our respectful submission, place emphasis, which is:

That the nature of the tenure granted by a special lease was different . . . can be seen, not only from the considerations . . . but also from consideration of the purposes for which special leases could be granted.

The reference to “could be granted” - can I just interpose there for a moment – is recognising that it is one form of tenure that 116 provides so that it was necessary to look to the purposes for which they could be granted in order to determine whether that form of tenure conferred a right of exclusive possession. Further down, after referring to the:

specific purposes for which a special lease might be granted, including taking guano, quarrying, and for sites for various kinds –

four lines from the bottom of page 179 -

At least some of the uses specified in the Act –

and their Honours give the examples of -

“sites for tanneries, factories, saw or other mills, stores, warehouses, or dwellings” are uses in which it might ordinarily be expected that the user would wish to control access to the land. One of the stated purposes (quarrying) could be the subject of a licence under s 118. Other purposes could not -

then the conclusion -

All this being so, the majority in the Full Court erred in not concluding that the grant of a special lease granted the lessee a right of exclusive possession.

What we draw from that is an examination of the purposes of the lease, so having dealt with the language of the lease, the purposes of the lease, being purposes which might ordinarily be expected that the user would wish to control access to the land, applies equally, if not more so, to the leases in the present case. That is, those purposes are no less of that nature than the purposes identified in that passage in paragraph 356.

FRENCH CJ: So this is a process of implication that the nature of the rights granted necessarily implies a right of exclusive possession?

MR QUINLAN: I would not put it as a matter of necessary implication, but that the nature of the purposes for which – or it is probably better to say, the uses - - -

FRENCH CJ: We are talking about rights, are we not?

MR QUINLAN: Yes, the uses which are intended to be carried out by the grant of the lease will inform the extent to which those uses require or contemplate the need for exclusive possession. That is why, for example, in our respectful submission, from Wik, pastoral purposes, to carry out pastoral purposes effectively over the area of a pastoral lease, is not a use which would – in which it might ordinarily be expected that the user would wish to exclude others.

It is simply not in the nature of that use, but a factory, a warehouse, a dwelling, a tannery would be, as would be the uses which are not only contemplated but intended by the leases which were granted in this case. In our respectful submission, it is those uses, together with the language of the grant, which lead to the conclusion that what was intended to be granted by these particular grants were rights of exclusive possession. We have referred, and I need not take your Honours to the variety of uses and we have summarised them in paragraph 6 of our outline, but some of them perhaps do bear - - -

FRENCH CJ: That is a right of exclusive possession over the whole of the area of the lease?

MR QUINLAN: Yes.

FRENCH CJ: You say that is necessary for the carrying out of the purposes for which the lease is granted?

MR QUINLAN: It is what – “necessary” is probably not the right word, in my respectful submission. It is that for the purposes for which the lease is granted one would ordinarily expect that a right of exclusive possession over the lease would be a feature of the rights of the lessee.

GAGELER J: Are we here really just talking about the construction of the lease?

MR QUINLAN: Yes.

GAGELER J: As a lease or a contract.

MR QUINLAN: Absolutely.

GAGELER J: Are you talking about business efficacy? Is that what it comes down to?

MR QUINLAN: Yes. As with any other instrument this exercise of interpretation as to whether a right of exclusive possession has been conferred is an exercise in construction of the lease, read with the agreement in its context, as to what right it in fact confers. Going back to Radaich v Smith and the initial identification or the confirmation by this Court in that case of the difference between a lease and a licence, Justice Windeyer commenced his Honour’s judgment by saying ultimately whether the instrument confers a licence or a lease is to be determined by the intention of the parties just as in any contractual circumstance, as opposed to the exercise, for example, of analysing a statutory right of a particular nature and its effect on native title rights and interests.

When dealing with the right of exclusive possession, the relevant intention to look to first is what is the intention of the parties to the agreement which gave right to the interest? Was it in truth a leasehold interest as would be suggested by the terms of the instrument?

We know from Wik and, indeed, from Radaich v Smith that the terms of the instrument are not going to be conclusive, that is the label that is used, but nevertheless, it will be important in looking at the lease to say what right does it give. Was it intending to give a right, for example, that persons who camped on the lease area without the authority of the holder of the lease would be able to bring an action in trespass or an action in ejectment before they had gone into possession of the lease? In our respectful submission, the answer would be yes because that is what the nature of the leasehold interest is.

It would not be a matter, for example, of the holder of the lease needing to demonstrate as part of the cause of action for the removal of the person that the removal was necessary for the mining operations. It was simply that that was a feature of the leasehold interest that strangers would be liable to those particular causes of action.

HAYNE J: Do you accept that the possessory interest granted by the lease, whatever its quality, was a possessory interest granted for the purposes of mining and purposes ancillary to mining operations?

MR QUINLAN: Not in those terms, your Honour. Can I put it this way? What we would accept is that the lease was granted for the purposes of the agreement and it is true that the agreement as a whole is concerned with mining and in a broad sense, ancillary purposes. The reason I cavil with your Honour’s characterisation is that within the notion of ancillary purposes may be a greater or lesser connection with the mining operations. In these particular - - -

HAYNE J: Do you depart from the submissions of the Solicitor or, at least, what I understand to have been the submissions of the Solicitor for Western Australia that building towns, airstrips, et cetera, was for the purposes of the mining operations and not otherwise?

MR QUINLAN: They were in order to support and facilitate the mining operations intended by the agreement, but can I just go back a little? The purposes for which many of the people would have been occupying the town may, strictly speaking, have nothing to do with mining, that is, not employees. School teachers, shopkeepers, those who worked in the shopping centre, the nurses, the police, all of those people are, in a broad sense, there because of the mining but they are in a regional town which is there because of the mining. They are, nevertheless, there for the purposes of shopkeeping, school teaching, being public servants who man the Goldsworthy police station.

So that in a broad sense, yes, your Honour, we accept that the whole purpose of this town being there in relation to Goldsworthy was because the mine was there but there would be a myriad of purposes for which the particular people would, for instance, rent houses there. That is another feature which we have referred to in the outline of oral submissions, that it was contemplated - it had always been contemplated by the agreement that there would be a town site on mining area “A”, it being referred to in clause 5(2)(a) of the original proposals required, that the joint venturers would have the capacity to let houses on the lease.

Indeed, one of the provisions which was given the force of a statute is clause 10(h), which appears on page 44 of the book of legislation which was - this is at the bottom of the page at page 44, clause 10(h) of the agreement:

that any State legislation for the time being in force in the said State relating to the fixation of rentals shall not apply to any houses belonging to the Joint Venturers in any townsite and that in relation to each such house the Joint Venturers shall have the right to include as a condition of their letting –

That is, these joint venturers, it was clearly intended by the agreement contemplated by the tenure that they were going to get, would be able to let residential tenancies and enforce them. Now, unless, if you like, the head lessee has a right of exclusive possession it would not be possible for the joint venturers to confer a right of exclusive possession by way of a residential tenancy on any of the inhabitants of the town.

That again serves to distinguish the nature of the leasehold interests conferred in these leases from, for example, what might be described sometimes as accommodation camps which are not conferring leasehold interest but are simply there to house the workers who happen to be next to the mine at the time. A far more comprehensive regime was required for the purpose of the establishment of this town site.

HAYNE J: We have gone beyond the tent on the diggings at Ballarat, I understand that.

MR QUINLAN: Yes.

HAYNE J: But the point of my raising this question of purpose is to ask you at some point in your submission to deal with what is said in Ward about the Argyle mining lease. Now, whether you come to that immediately or after lunch is very much a matter for you. But at some point I do think you have to grapple with what is said about Argyle as well as what is said about mining leases generally.

MR QUINLAN: Yes, I accept that it is necessary to consider those passages. Can I make this initial point about the Argyle lease, which is that as with the other leases referred to, it was a mining lease issued under section 78 of the 1978 Mining Act. That is of particular significance, in our respectful submission, in distinguishing the lease in this case, because a mining lease under section 78 of the 1978 Mining Act is clearly, in our respectful submission, a statutory right, the contents of which are determined exclusively by the terms of the Mining Act. In fact, section 85 of the 1978 Mining Act makes that clear. It commences subject to whatever conditions, the rights that a person has are these and, importantly - and this is a distinction between that Act and the 1904 Act – it is the same instrument which is granted, that is, the 1978 Mining Act lease, whether over private land or Crown land.

HAYNE J: Be it so, the point that I think you may need to grapple with is the last two sentences in paragraph 333 at page 174 of Ward but, as I say, come back to them after you have perhaps – let me not divert you from where you are going.

MR QUINLAN: Yes. If your Honour pleases, can I deal with in the context of exclusive possession this point, which is whether or not there is any significance to be drawn – I should not put it that way – what significance is to be drawn from what are described in the judgments of the court below as the “reservations”.

The particular reservation which is referred to is that which appears in the agreement at clause 10 – no, it is not, it is in clause 9 - it is on page 34 of the book, clause 9(2)(g) which is in the agreement headed as “Access through mining areas”. That is, if one goes back to the opening words of clause 9(2), a covenant by the joint venturers to the State to:

allow the State and third parties to have access (with or without stock vehicles and rolling stock) over the mineral lease (by separate route road or railway) –

and then there is the proviso in relation to not unduly prejudicing the operations.

FRENCH CJ: That might be a convenient moment, Mr Quinlan.

MR QUINLAN: If your Honour pleases.

FRENCH CJ: Court will adjourn until 2.15.

AT 12.45 LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Quinlan.

MR QUINLAN: May it please your Honours. Before lunch I had taken your Honours to page 34 of the book of legislation and to clause 9(2)(g) of the State agreement which was that which allows access through the mining areas to third parties by “separate route road or railway”. The submission that we make about that clause in the agreement in the context of this part of the argument which relates to our submission that the leases are a true demise under the general law which confer a right of exclusive possession is that that particular clause, the first submission we make about it is to note that it is not a term of the – it is not a derogation from the grant that appears in the lease itself, that is, it does not appear carved out from the terms of the grant in the lease which is sometimes the case in other leases, and, secondly, that it is essentially and only a covenant as between the parties to the agreement, that is, the joint venturers and the State.

It is not one of those provisions which by the operation of section 4(2)(b) of the Agreement Act operates as if it were enacted in the Act. Obviously, it is a covenant which breach of might give rise to rights to the State under the agreement but it is not, as it were, a carve-out from the terms of the grant.

HAYNE J: Well, is that right? Go to page 150 of the appeal book, line 27 and 28:

subject to the terms, covenants and conditions set out in the said Agreement –

What work are you giving those?

MR QUINLAN: Certainly, I accept that it is a covenant as between the State and the - - -

HAYNE J: But you are putting a proposition that it is somehow separated from the lease. The lease itself says “subject to the terms”, et cetera.

MR QUINLAN: No, what I am putting is that it is separated from the grant of the interest in land. It is a covenant enforceable by the State, no doubt, under the agreement and the lease, but it is not a provision which would give a right enforceable in law to any third party. That is all we say about it in terms of its operation under the lease.

Even were it to have that character, however, in our respectful submission, a provision of that kind is no different in form or substance to the kind of provision that is referred to in relation to the leases granted under section 32 of the Land Act which are dealt with in Ward, and if I can briefly refer your Honours again to the plurality judgment in Ward at page 181. My learned friend, the Solicitor-General, briefly took your Honours to this page. Can I just simply refer your Honours to these matters?

The relevant provision under which the grant of the leases in that case was made appears at the beginning of paragraph 366 on page 181, which was an authorisation for the grant of a lease under section 32 of the Land Act. The relevant leases which were being considered were those which appeared under paragraph 367, and the terms of the leases are dealt with in paragraph 368. Your Honours can see at the bottom of the page, six lines from the top:

The lease was for the purpose of grazing.

At the bottom of the line –

There was a proviso for re-entry. The lease recorded that it was issued subject to the condition that the public should have “free and uninterrupted use of the roads or tracks” on the land and that the lessee not destroy timber or scrub.

Now, that “free and uninterrupted use of the roads or tracks” on the land is, in our respectful submission, certainly no more extensive than the requirement to allow access by separate route, road or railway that appears in the lease. Importantly in that case, that reservation did not in any way derogate from the conclusion that appears in paragraph 369 which is that, and we say each of these propositions applies equally to the leases in the present case:

The lease that was granted was not a statutory interest in land. The features of the interest granted were not prescribed by the Act but were determined by the nature of the agreement reached and the grant made. The rights thus granted to Ivanhoe were, therefore, rights as lessee of the land, as that term is understood in the general law. Ivanhoe was thus granted a right of exclusive possession of the land.

We place emphasis on the word “thus” in the last of those sentences, that the conclusion that what was intended was the conferral of rights as lessee under the general law carried with it that grant and the next paragraph I do not need to read but refers to the fact that that conclusion had not been reached. It was not to the point to inquire as to whether or not there could be simultaneous exercise of native title rights and interests.

Can I make these further submissions in relation to the exclusive possession point? The first relates to the issue raised by your Honour Justice Hayne concerning the Argyle leases in Ward. Those leases were, and if I can take your Honours to the treatment of the leases, those leases were conferred following the approval of an agreement which is dealt with on page 171 at paragraphs 322 and following where there had been some dispute as to whether or not other rights or interests that were held by holders of prime mineral claims might give rise to some form of challenge.

The relevant reference to exclusive possession in the ratifying Act in that case appears at page 172 in paragraph 326, and it is in section 8(1) of the ratifying Act which referred to the:

exclusive possession of the subject land for the purposes of the Mining Act 1904 and [the WA Mining Act] –

That is what then finds its resonance in the conclusion of the plurality judgment in paragraph 333, which is that:

The provisions of the Ratifying Act and of the agreement do not require the conclusion that the grant of the Argyle mining lease was necessarily inconsistent with all native title. Exclusive possession was granted for mining purposes only.

We do not challenge in any way the conclusion that is reached there. What we say is this: the use of the expression “exclusive possession for mining purposes” in that Act and as it appears in section 85 of the Mining Act is indeed, as is confirmed by the conclusion that is there reached by the plurality, using the expression “exclusive possession for mining purposes” in a manner otherwise than that is understood at common law in terms of the interest conferred by a lease by a lessor on a lessee. It has, because of the statutory context, a different meaning and that different meaning is reflected in, for example, section 85 of the Mining Act 1978, which appears in the bundle of legislation at page 351.

What is important, in our respectful submission, is that what is clear from section 85, which is a provision as a matter of statute defining the metes and bounds of that which a person holding a mining lease under that statute will have, is that it is not necessarily to be taken to be using all of the words in their accepted common law sense and, indeed, that is part of the reasoning that gives rise to the conclusions that appear in Ward. So that, for example, in section 85(3) on the bottom of that page:

The rights conferred by this section are exclusive rights for mining purposes in relation to the land in respect of which the mining lease was granted.

It is an inherent part of the rights that are granted under section 85 that they are exclusive rights for mining purposes, that is, the purposes inherently are included in the scope of the rights. That will not necessarily be always the case in a lease which has the requirement to use for purposes. In fact, in our respectful submission, most often it will not be.

A typical lease which confers, demises and leases land, for example, on a covenant that the premises be used only for a shop or other use is simply a covenant as between the lessor and the lessee and is not, as it were, derogating from the grant as if, for example, the lessee in an action for trespass or ejectment would have to show that the reason for their seeking the order for removal or recovery of possession of the land was for the purposes of a shop.

Rather, the covenant defines circumstances in which the lessee may be in breach in relation to which the lessor may or may not take action and that, in our respectful submission, is how the leases in this case are properly to be construed. The relevant reference to “purpose” in the leases in this case appear after the grant of the interests in land and the demise, as we submit it to be, and are part of - - -

HAYNE J: After, or as part of?

MR QUINLAN: They are attached to them as covenants and conditions that are to be observed, that is that the joint venturers shall and will use the land bona fide - - -

HAYNE J: No, I had in mind what appears at appeal book 150, line 25, “for the purposes”.

MR QUINLAN: Yes:

subject to the said Agreement for the purposes but upon and subject to the terms, covenants and conditions set out in the said Agreement and to the Mining Act - - -

HAYNE J: I read that, correct me if I am wrong, I read that for the purposes set out in the said agreement.

MR QUINLAN: Yes. Then the covenant appears, that it will be used:

bona fide exclusively for the purposes of the said Agreement.

HAYNE J: Why would one not read (a) the references repeated, I think, through the document to it being a mineral lease; two, the reference in the effective demise provision to purposes, plus clause 1, as yielding inevitably the conclusion that the lease is a lease for the purposes of mining and purposes ancillary to mining operations.

MR QUINLAN: Because, in my respectful submission, the agreement goes beyond what would otherwise in a Mining Act context be regarded as purposes ancillary to mining. If “ancillary to mining” is intended to include the entire scope of the matters under the agreement I, of course, accept what your Honour says about that, but that purpose, in my respectful submission, does not cut down the nature of the rights which are conferred, given the breadth of the uses which are inevitably and necessarily contemplated in the same way as I submitted in relation to the special leases under section 116.

FRENCH CJ: Why should one not simply regard this agreement as taking the instrument of a mineral lease and adapting it to the purposes of a large-scale development without changing its essential character?

MR QUINLAN: Well, because the adaptation for the purposes of the development requires the change of its essential character in order to meet the needs of the agreement. That is, in other circumstances where a town site had to be built or other infrastructure had to be built that would not otherwise come within the terms of a mineral lease under the agreement – under the Act, a different type of tenure would need to be obtained, for example, a special lease under section 116 or some other general purpose form of lease. The point of the mineral leases that have been adapted for the purposes of this agreement is that they sustain all of those uses that might otherwise be required by a range of titles.

Can I finally in relation to that point refer your Honours to – and I have provided copies - your Honour Justice Hayne asked for a comparison between the terms of the lease that is annexed to the agreement, or schedule to the agreement, and the terms of the common form of mineral lease that appeared under the 1904 Act, and if I can just briefly explain to your Honours what is depicted on this. There may be a couple of typographical errors, but generally those parts which are struck through are those parts of the mineral lease in question in this case, that is, the Goldsworthy leases, that are not included in a mining lease under the 1904 Act.

Those parts which are underlined are those parts which are included in the 1904 Mining Act lease but are not included in this mineral lease, and those parts which are neither struck through nor underlined are those which are common to both. So that as, for example, your Honour Justice Hayne noted before lunch, the words “do by these presents grant and demise” appear in both of them, and there are other references which are common to both. The expression of the covenants and conditions is somewhat different because one is referring and picking up the Mining Act and the other is referring simply to the agreement.

The terms of forfeiture which appear on page 2 in the second full paragraph from the bottom appear in the 1904 Mining Act lease but not in the leases under the agreement because the determination is dealt with by the agreement itself and, in addition, as has earlier been pointed out, the reference to the Crown without compensation resuming any portion of the surface of the land does not appear in the leases under the agreement.

In addition, one aspect which is inherent in the demise which does not appear in the leases under the agreement but which did appear under the 1904 lease are the words six lines from the bottom that appear on page 1, that is:

excepting and reserving out of this demise all such portions of the said piece or parcel of land as are now lawfully occupied by persons other than the lessee, or any portion thereof which is now used for any public works or building whatsoever.

That exception - what I would respectfully submit is a carve-out from the demise does not appear in the leases under the agreement.

HAYNE J: And of the differences thus identified, which do you say is significant for the determination of the issues in this case?

MR QUINLAN: Those which are significant for the issues in the determination of this case are the carve-out that I just referred to; the fact that the limitation on the purposes of the agreement which are broader than the purposes of the Mining Act so that one does not go to the Mining Act to determine the scope of the rights intended to be granted, but go to the agreement. Those would be the two primary ones which, in our respectful submission, would militate the conclusion that this lease under the agreement is a true demise of the property.

That is not to say that the Mining Act 1904 Crown lease might not have done the same thing were it not for aspects of the 1904 Act. The 1904 Act, of course, included provisions which deemed the tenements to be chattels and, indeed, deemed mineral leases to be chattels in circumstances in which they might otherwise not have been, that is, that they might otherwise have been chattels real or leasehold interests.

In fact, in Adamson v Hayes [1973] HCA 6; (1973) 130 CLR 276, that was an express conclusion of at least two members of the Court, that the deeming provisions in section 137, I think, of the Act would have been unnecessary in relation to mineral leases, were they not leasehold interests in any event.

Can I move then, your Honours, to the question of inconsistency and, by reference to our outline of oral submissions make these submissions in relation to inconsistency. These impact on what we say is the authority or otherwise of De Rose, and can I preface that by saying in our respectful submission the conclusion in De Rose is incorrect and that it should not be followed.

The emphasis which is placed on the question of inconsistency in our learned friends for the first respondent’s submissions, as we have set out in paragraph 11, and appears also in their outline of oral submissions, would appear to focus entirely on whether or not one right, either the native title right or the non-native title right, includes a right to exclude. The submission made by my learned friends is that absent one set of the rights having a right to exclude the other there is little, if any, work for inconsistency to do.

Now, in our respectful submission, that is not the proper approach to inconsistency and we say that in paragraph 12 of our outline for two reasons. Firstly, were that the only exercise that was required in relation to inconsistency, all of the references by the plurality in Ward about the need to identify and properly enumerate and compare the different sets of rights would be unnecessary.

In relation to mining leases under the 1978 Act, for example, the conclusion which appears in paragraphs 307 and 308 of that judgment is that any exclusivity in the native title holders would have been extinguished, but it would be necessary to compare precisely what native title rights existed with what mining rights existed in order to determine the extent of any further extinguishment.

If the exercise were only about comparing exclusivity, the conclusion in relation to the mining leases in Ward at paragraphs 307 and 308 would necessarily have been, other than exclusivity, there could be no extinguishment. That is, in our respectful submission, not the approach that is identified.

The second matter is that in a passage that my learned friend the Solicitor has already referred to, in the context of pastoral leases a similar issue arose – that is, a pastoral lease would no doubt extinguish exclusivity, but whether or not it extinguished any other rights it was necessary to identify them and compare them.

The court indicated – and it used the word “probably”, because of the very fact that there were not findings as to the rights – the right to pastoral activities would probably not be inconsistent with the right to hunt and gather traditional foods, but the right to burn off the land by the native title holders probably would be inconsistent with the pastoral holders’ rights.

What that demonstrates, in our respectful submission, is that inconsistency arises not simply where, as it were, there is a prohibition by one set of rights against an activity by another set of rights, as occurs with exclusivity. That can occur where it is simply two activities which potentially come into conflict. That, in our respectful submission, is the exercise that is required in determining the extent of any inconsistency.

HAYNE J: Put that again. What is the proposition?

MR QUINLAN: The proposition is that the question of inconsistency can arise in circumstances in which the two sets of rights that are being compared are simply rights to conduct activities and it is necessary to reach a conclusion as to the extent of each right in order to determine whether or not they are, properly speaking, inconsistent.

Now, the way we have endeavoured to express that is in paragraph 13 of our outline which is what, perhaps borrowing from a constitutional context, we have described as the difference between a direct and an indirect consistency. A direct consistency or a direct prohibition is one where, for example, the non-native title right says you may stop somebody hunting compared to a right that says you may hunt. They are clearly directly inconsistent, one prohibits the other. But the burning-off example shows that the inconsistency may arise because to exercise one would render the other incapable of exercise.

HAYNE J: Would render the other incapable of exercise simultaneously, I think. Is it not necessary to add “simultaneously”?

MR QUINLAN: It is necessary to add “simultaneously”, but one of the features of that investigation, in my respectful submission, as part of the identification of the content of the rights in relation to the area of a grant, this exercise not being about statutes which regulate activities but in relation to grants which authorise activities by others, is that it is necessary to look to not only what the right is but the extent to which it exists across a grant in order to know whether or not it is relevantly inconsistent.

HAYNE J: Well, I think that is probably directly inconsistent with paragraph 78 in Ward. I think the proposition you advance is one which is explicitly denied in paragraph 78.

MR QUINLAN: If by my submission I have been understood that this says anything as to the exercise of the rights, that is not the effect of my submission.

HAYNE J: Activities are useful only for the purposes of focusing the mind on the right pursuant to which the activity occurs.

MR QUINLAN: Yes, that is correct.

HAYNE J: The question is one of inconsistency of rights, not inconsistency of activity.

MR QUINLAN: Yes. The right itself may not be a right which is capable of exercise across the entirety of the grant, and I am not talking in this context about where they have been exercised or when they are exercised, but the capacity to exercise them.

FRENCH CJ: Can I just test that by putting again to you the proposition I put to the Solicitor? If you have a statutory right which authorises an activity, say X anywhere on the land the subject of the grant, and you have a native title right which contemplates an activity Y anywhere on the same land, and those two activities cannot be carried on at the same time and the same place, do you say the two rights are inconsistent?

MR QUINLAN: Can I answer that by saying I say the two rights are inconsistent where the right can be exercised everywhere on the land.

FRENCH CJ: That is what I said, anywhere on the land.

MR QUINLAN: There is a difference, in my respectful submission, between a right that can be exercised anywhere and a right that can be exercised everywhere. Can I seek to draw that distinction in this way?

A pastoral lease, the right to build a homestead on a pastoral lease, which is a lease for pastoral purposes, is not a right to build homesteads covering the land. It is a right to build perhaps anywhere on the land, but it is not a right which enables the holder of the licence to cover, as it were, the pastoral lease with homesteads. It is inherent in the nature of that right that it is properly seen as incidental to the pastoral activities and can only occur on a particularly small part of the grant itself, of the land itself.

That has not got anything to do with exercise. It has to do with the extent that the leaseholder has a right to make that improvements and I have endeavoured in paragraph 14 of the outline to give some examples of the difference between the two. The example I gave in paragraph 14(a), picking up a reference to the judgment in Commonwealth v Yarmirr, the right to build a pier is not inconsistent with a right of innocent passage because the right of innocent passage does not require free access to each and every part of the waters.

The right to reclaim all of those waters, in my respectful submission, would be inconsistent because that right is able to be exercised in every part of the area and cannot be exercised without abrogating the relevant native title right, and it may require in a particular case a close analysis of what the

other right is, which is why, in our respectful submission, a pastoral lease which confers a right to build a homestead which is incidental to the pastoral purposes may not be inconsistent with any native title rights to hunt because the native title rights to hunt do not require free access to every part and there is not going to be a homestead on every part.

But, in relation to mining leases of this kind, each and every part of the mining leases may be the subject of the rights, uses and activities which are conferred by the lease and that, in my respectful submission, is the approach that is necessary to be taken to inconsistency to give effect both to the direct prohibition example and the fire burning example in Ward.

The reason, in my respectful submission, at paragraph 194 of Ward burning fires was said to be probably inconsistent with pastoral activities is because burning fires will change the landscape, prevent the use of that area for the purposes of the pastoral activity. It does not matter that in a particular case or a particular example a fire is burnt in a place where the pastoral activities are not, for that time, being carried out. It is a matter of comparing the two rights.

The right to burn off the land and change the landscape is inconsistent with the right then being carried out by the pastoralist and, in our respectful submission, the apparent conundrum in De Rose of the building of a homestead is not that at all. It is simply that there is no inconsistency when the right is properly viewed.

The position is different and could not be otherwise, in our respectful submission, in relation to the mineral lease in this case because of the fact that those rights can be exercised - - -

HAYNE J: You have said that about four times, Mr Quinlan.

MR QUINLAN: I will not say it again, your Honour. Those are our submissions.

FRENCH CJ: Thank you, Mr Quinlan. Yes, Mr Solicitor.

MR HINTON: If the Court pleases. Our submissions concern only the second ground of appeal and we confine ourselves to matters of principle on what has been described as the De Rose issue. Propositions 1 to 4 contained in our oral hand-up are not controversial. Can I pause at 1 for a moment to answer your Honour Justice Gageler’s question, a question put to my learned friend, the Solicitor-General for Western Australia.

What is it? What is the test for inconsistency or what is it when you say two rights are inconsistent? May we answer that question this way, drawing upon the imperfect analogy of section 109 jurisprudence? Where the existence or enjoyment of a native title right alters, impairs or detracts from the enjoyment of a right conferred by statute, the two rights are inconsistent and at common law the statutory right extinguishes the native title right. That, in our submission, is what amounts to inconsistency.

Proposition 5 in our oral hand-up is also not controversial. The two steps identified must be taken in order that the content of the right, derived from the statute, may be determined. The point to be had in unpacking what is required in determining the content of a right derived from statute is to highlight our proposition 6; you may not be able to determine the content of the right in the absence of the exercise of the right. That is a proposition recognised in Ward, in my submission, at paragraph 149. If I could take your Honours briefly to that, it is not a paragraph that anyone else has taken your Honours to today.

There, in 149, in explaining the limited utility of the expression “operational inconsistency” and cautioning about the potential perils in using that sort of label, the joint reasons allude to the possibility that the true content of a right may not be discerned in the absence of its exercise. I invite your Honours to read on and in particular paragraphs 150 and, for my purposes, importantly, paragraph 151.

Paragraph 151 underlines our eighth proposition. Just as the content of the grant may not be determinable until the exercise of a right pursuant to the grant, so too inconsistency between the grant and the native title rights may not be determinable in the absence of the exercise of the rights granted. Despite the inconsistency not operating until the exercise, the inconsistency is nonetheless the product of the grant. This process of reasoning was undertaken by Justice Gummow in Wik in a paragraph your Honours have not been taken to – if I could take your Honours to it – (1996) 187 CLR 1, in particular at pages 185 to 186, commencing at the top of 185. His Honour is concerned with the notion of here the label is used, physical inconsistency. Drawing upon Justice Fry’s judgment in Yarmouth Corporation v Simmons at about point 7 his Honour says:

Rather, it requires a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right.

Abrogating, we would say that occurs where it alters, impairs or detracts – and over the page, again referring to the relevant statutes here, the authorisation by them of activities amounting to physical inconsistency. My point is to make plain that whether you want to label it operational inconsistency, physical inconsistency or latent inconsistency, as explained perhaps by Justice Gummow in Wik, it remains the product of the right.

It is a matter of determining what the right grants and, therefore, it is not a comparison of use but use illuminates content. The exercise of the right then is not a precondition to its existence. The right exists as at the time of grant. The exercise of the right that illuminates inconsistency does not mean that extinguishment occurs at the time of the exercise of the right. Extinguishment occurs upon the grant of the right because it is the right that gives rise to the inconsistency. There is no alteration here to the legal criterion governing extinguishment. The question remains, having determined the content of the two rights, are they inconsistent?

GAGELER J: So what is the extent of the inconsistency that exists at the time of grant? Does it extend to any possible exercise of the right or does it extend only to those exercises that in fact later occur?

MR HINTON: The inconsistency at the time of the grant extends to the exercise of it at a point in time in the future where it is not manifest until it is exercised, if I can put it that way. So deal with a classic example: the building of a dwelling house some years after the pastoral lease is granted. At the time of the grant of the pastoral lease there is the grant of the right somewhere on the lease to build the dwelling house. At the same time there are native title rights and interests existing with respect to the pastoral lease. The inconsistency exists at the time of the grant: you can build a home. That will have the consequence of extinguishing native title where you erect your home.

HAYNE J: No, it will not, Mr Solicitor. Once you take that step, no doubt the conclusions you assert follow. But go on.

MR HINTON: Perhaps there is one thing I have not said, and that is, if your Honour the Chief Justice is waiting to ask me the question you have asked the two speakers that have come before - - -

FRENCH CJ: I had another one in mind actually.

MR HINTON: My answer to your Honour is: just because you can build a house somewhere does it mean all native title inconsistent with the erection of a dwelling is extinguished? The answer is no. It is a matter of determining the content of the right. The right is not to build a dwelling over the whole property. It is to build a dwelling somewhere on the property. If that is the content of the right then where ultimately you choose the location to exercise the right, there that is where you have the inconsistency arise. So, in my submission, whilst the grant of the right gives rise to extinguishment at the earlier point of time, you do not know where, until the right is exercised, that extinguishment occurs. It is not then a matter of one right prevailing over another. It is a matter of inconsistency and it is a matter of use illuminating inconsistency.

With respect to the reliance by the first respondent on the notion of “prevails”, we adopt the submissions of my learned friend the Solicitor-General from Western Australia. That word and, indeed, the word “yield” come from the judgment of Justice Toohey in Wik and, in particular, the addendum at the conclusion where his Honour attempts to draw together, from the judgments of himself, Justices Gummow, Gaudron and Kirby, that if one analysed the judgments of Justices Gummow, Gaudron and Kirby, they are not talking about one right prevailing over another in terms of there being a suspension; they are talking at all times of extinguishment where there is inconsistency.

In answer to your Honour Justice Hayne’s question this morning: does exercise of a right to put a hut on a lease result in native title being extinguished on any part of the lease? Our answer is, depending upon the content of the right, it is on that part where you erect the hut. Again, we concentrate on the test being inconsistency of rights, the necessity of identifying the content of the rights.

GAGELER J: What happens when the hut is demolished?

MR HINTON: At common law, once extinguished, always gone, your Honour. It is important here to deal with paragraph 308 of Ward. My learned friend, the Solicitor-General for Western Australia, has. We agree with his submissions. That paragraph does not raise the prospect of suspended native title rights that are inconsistent with rights derived from statute.

GAGELER J: See, I think that might be the imperfection with the analogy to section 109 because when a Commonwealth law prevails over a State law under section 109 - - -

MR HINTON: It is not extinguished, it is just inoperable.

GAGELER J: - - - the State law is not extinguished.

MR HINTON: I did say “imperfect”, but it is those words, “alter, impair or detract” that allow you to identify inconsistency. The same concepts direct you to determining what is the content of the right and where are the two rights inconsistent and that is why we have adopted those words. But we do not go so far as to say section 109 inoperative to the extent and for so long as the Commonwealth law operates. No, your Honour, once

extinguished always extinguished. To give content to inconsistency we say you can draw upon those three concepts.

Can I deal finally, and very quickly, with De Rose (2005) 145 FCR 290? Can I take your Honours to the judgment? In our submission, the principles we have outlined allow for conditions precedent, conditions subsequent and for the identification – or future acts, but not using that expression in the sense of the Native Title Act, where the grant, or at the time of the grant a right is conferred that would allow, sometime in the future, an activity, an act, to be done on the property. It is important, however, though I take your Honours to De Rose, and in particular, paragraphs 155 and 156.

FRENCH CJ: At page?

MR HINTON: Page 333. Sorry, paragraphs 155, 156. In our submission, with the exception of the last sentence in paragraph 156, the approach of the Full Court is correct and consistent with Ward. The distinction we draw, or the difficulty we have with the last sentence is the timing of when extinguishment occurs. In our submission, it occurs at the time of the grant of the right. It is just that by virtue of the right not having been exercised you do not know the location of extinguishment. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, before I go to the sequence outlined for address, may I pick up a number of matters that have more recently fallen from Bar and Bench, in particular what seems to be a dangerous kind of Swiss cheese effect, dangerous because of the criminal responsibility that comes where there is no lawful authority pursuant to an exercise of native title rights to be in a particular place, for example, and in particular presented by the notion that raises this, in our submission, absurd distinction between “anywhere” and “everywhere” for the purposes of the present argument, and involves an imagination – not an overactive imagination, a perfectly sensible imagination – as to what might over a very large tract of land over a very long period of time, including evolving technologies and, indeed, commodities markets, for a very large infrastructure associated with mining and the exploitation of the resource, including its transport and treatment, and considering the nature of the proposition most recently advanced by my learned friend, the Solicitor for South Australia, by which there is this, as it were, pointillist with dots - may include very large ones, but they also may include very small ones.

When a surveyor takes up occupation of part of the land, it might be for minutes, hours, days or weeks, depending upon the nature of the occupation of the nature of the surveyor’s activities, all for the purposes of mining. Exactly what is involved in this proposition that at each point where physical occupation by the man or woman involved, the equipment involved, makes it literally impossible for there to be simultaneously another man or woman in the same place doing something pursuant to a native title right, and that appears to be the test posited for extinguishment in this case by those against us, one asks rhetorically about all of that, can it seriously be suggested that that is what “inconsistency” means for the purposes of the doctrine which has inconsistency as the step or state of affairs which produces extinguishment.

In our submission, were that true, it would be an extraordinary result lacking both the moral resonance that Sir Gerard Brennan talked about in Wik in the passage which includes the passage at page 87 to which repeated attention has been given for the State of Western Australia today, and it also of course is at odds with the notion that there ought to be clarity and a capacity to perceive matters of title, which is at the very heart of the kind of dispute which ought to be settled rather than created by the making of determinations under the Native Title Act.

In relation to this particular determination area and this particular mining project, part, by no means all of which, is within the determination area, can I put some facts to the hypotheticals which underlie the arguments against us producing this Swiss cheese extinguishment, that apparently in argument being regarded by those arguing against as more attractive as an argument than what we think is conceded to be unavailable on the case law, that is, as soon a surveyor’s Land Rover goes on to any part of the vast tract, all native title rights and interests for the whole tract is thereby gone. It appears to be accepted in the arguments against us, depending upon some logical criticisms that could be made of other propositions advanced, but it appears in overt terms that it is accepted that would be an impossible argument on the case law. So the fall-back appears to be this Swiss cheese effect, the scattering over time and place of an extinguishment.

Could I take your Honours, please, in volume 1 of the appeal book first to page 128? Now, this is in a set of facts which are undisputed, though their relevance was still subject to contention. In paragraph 3 on page 128 one sees that this township – and this is the place where teachers and policemen may have worked and lived – that the town went, apart from a fence. It is the kind of improvement for the purposes of mining that in Californian and I think also Australian usage led to what looked like towns being called camps. They were there for the purposes of mining, and they went, and this one went; Goldsworthy went. In paragraph 11 on page 129, it is back to bush. That is what that amounts to:

“you might not have known there was once a town here” -

At page 131 one sees in paragraph 18 that it is not as if there is a scar on the land. Apart from “the location of some of the gum trees” -

the trees and plants . . . were of the same type that used to grow there before the town was built –

Those trees that grow now there are used for purposes which lie centrally within land – native title rights. Footnote 21 in that paragraph refers one-off to material which you will find at page 221 and, if I may say so without being facetious, there is your town at page 221. Your Honours, that, according to the argument most recently put by the Solicitor for South Australia intervening, that is an area where native title has been extinguished by reason of an inconsistency as a result of an argument which included reference in apparent reliance to the way in which Justice Gummow had discussed Mr Justice Fry’s use of the expression “physical inconsistency” in Justice Gummow’s reasons in Wik.

But, of course, those passages in Wik, to which reference was made in Justice Gummow’s reasoning, makes it crystal clear that the physical inconsistency that his Honour is talking about does not involve this imaginative construction of a physical impossibility by reason of activities intersecting and, of course, the history subsequently of the jurisprudence in this Court made it clear that the emphasis on inconsistency of rights is not to be determined by being able to imagine intersecting, conflicting if one likes, activities carried out respectively in the exercise of the two putatively inconsistent rights. That is the first of the preliminary remarks.

The next is this; it was said by my learned friend for Western Australia, as appellant, that in relation to Fejo, the effect of a grant of fee simple with its distinguishing characteristic of the right to exclude everyone for any or no reason, that it was too late to go back. His submission was not, I think, suggesting we had somehow been timorous in terms of not seeking leave to reopen Fejo, which had never occurred to us, I confess, but rather that the law in this area is of such public importance and deals with matters of such manifestly serious import that one of the cardinal fixtures like Fejo is there, must be dealt with by those who seek to advise and, where necessary, argue these matters.

Why would not the same be true, with much more vehemence in this case of Ward and, we had understood, including from exchanges at the beginning of argument today, that nothing was being said to detract one iota from the authority, I stress the authority of Ward, in relation to the matters in hand. That is why we had understood, and your Honours will see in proposition 2 of our outline for address, we had seen the key issue as being whether there was something that differentiated, distinguished if you like, the leases in this case from the mining leases I stress the mining leases, which were considered in Ward, and in a nutshell, no, there is not. Far from it; everything that attracts reasoning as part of the ratio decidendi in Ward concerning the mining leases, that is, the distilled material aspects of the leases in that case are equally true, without any qualification necessary, are equally true here and we have elaborated that in our written submissions which I will not be going further into.

Now, in our submission, once one can say that about Ward, that it is too late to go back, and no-one is asking to go back in relation to Ward, it must be that logically the only question is whether there is something to differentiate these leases.

In particular, in relation to passages, I think all of which have already been mentioned either by members of the Bench or from the Bar table in the argument today, some of which we will be going to, in particular it can be seen that the choice, if I may respectfully put it that way, that was made in Ward about the characterising notion – that is, the characterising essence of the inconsistency which would produce extinguishment – the choice which was made in Ward is very obviously against what is necessary as a premise for our friends’ success.

The dissenters in Ward on the mining leases trod a path which, in our submission, is really indistinguishable from what is really the premise of the argument advanced against us, namely, that if it can be said that the right constituted by the mining lease authorises anywhere or everywhere – I will use that as a compound phrase without distinguishing – things to be done, activities to be carried out – it does not matter whether they are transient or semi-permanent for this purpose – which would prevent, by reason of the impossibility, physically, of things being done by different people at the same time and in the same place of a different kind, then extinguishment is worked of all those native title rights from the beginning, that is, when the competing right of the mining lease is created.

Assuming that was an available choice, and it is on one form of logic perhaps deracinated from legal reality, or one form of logic that might have been a choice and, with great respect, the dissenters made that choice, this Court determined the course of the law in this extremely important matter of national importance. There is no attempt to walk away from that and, in our submission, it simply determines this case once one sees there is nothing to distinguish.

Hence, the next reference I wanted to make by way of opening comment is this. The reference to the deep pits, the dynamite dumps, both of them picked because they are evocative of the physical impossibility of, I suppose, hunting or taking material for traditional craft activity from the places where there are deep pits and dynamite dumps, now, it has to be said, and it is said in the record in this case, including in passages that you were taken to earlier today, a miner’s deep pit becomes posterity’s lake. So one should not too readily think in satanic terms about the results of mining.

The dynamite dumps are no doubt different, but both of them, of course, whether they remain simply deep pits, picturesque lakes or dynamite dumps, they have all got safety considerations. But there could be no doubt ever, and certainly not since Akiba, that compliance by those entitled to exercise native title rights with the law of the land, statutory law, prohibiting anybody or anybody without certain licences or certificates from entering into certain places or doing certain things in the presence of high explosive or deep water – whatever it may be – no one could sensibly argue that that would present an inconsistency requiring extinguishment of the native title right. It would be merely regulatory; it would be mere compliance with the law of the land.

The next preliminary observation is this. It was said by my learned friend for Western Australia that exclusive possession, which is indeed a very important part in the first step in this case to these mining leases, grant exclusive possession. It is said by my friend that exclusive possession is a difficult notion to which we say no, it is not. It is not at all a difficult notion. Indeed, if it were a difficult notion there would be something deeply defective about our land law.

It should not be a difficult notion, so if there were any difficulties they should be exposed and resolved, but no particular difficulty has been shown in this case with the idea of exclusive possession. It is a legal term that requires no arcana to understand except for the mysteries of the word “possession” which need not trouble us. “Exclusive” has its meaning in law given by its ordinary meaning in English and it permits the exclusion of all others.

Now, in our submission, Ward makes it crystal clear that exclusive possession for the purposes of mining granted by a statutory – I stress statutory or generically statutory mineral lease does not have the effect of granted exclusive possession in that in fact easily grasped sense. That leaves in this case the differentiating or distinguishing issue. Can it be said that these mineral leases are different in that regard? For the reasons we have put in writing and that have been canvassed in debate already today between Bench and Bar, the short answer is no, of course there is no difference whatever.

Interposing reference to the agreement as the textual difference which is the only one of substance offered by BHP in argument, interposing the agreement is to interpose something which even more explicitly in even more graphic detail confines the purpose of the possession to mining. Now, of course, of course mining is not just digging a hole, no one has ever supposed that. One is mining something for exploitation and the market is not to be found at the mine site, so of course it involves all the ancillary works which are by no means small.

That is why I stress much of this project is not involved in this case because it is not within the claim area. It includes a port, it includes a town still existing at a port, but all of it is for mining and the obligation on the miner, as indeed the correlative obligations on the State, are to do with the creation of a mining project, not only its creation but its lucrative continuance. I say lucrative because it included, of course, provision for payments to the State.

HAYNE J: I think the arguments against you are not substantially different from those advanced by Mr Fraser, QC on behalf of Argyle in Ward, see page 43 of the reported argument. You need not go to it but I think the arguments are essential.

MR WALKER: Your Honour, the page number eludes me, the argument I am familiar with and yes, is the short answer. In our submission, it is this – I hope I will not be misunderstood – it is a form of stare decisis argument I am putting. There has been the choice made, there it is, that is the major premise. The minor premise is does this case have a different feature that puts it on the other side of the line? No, it does not. Indeed, to the contrary, it has resoundingly all the features noted in Ward.

The only foothold for this, in our submission, impossible task of differentiating was to say, well, but these are mining leases, so-called; these are mining leases which are for the purposes of the agreement. They are not therefore to be seen as in the same case as mining leases for the purpose of granting exclusive possession for mining. When one goes to the agreement one sees that this is a distinction without any difference whatever.

The next preliminary observation is this. Your Honour Justice Kiefel asked my learned friend for Western Australia whether the rights which include the descriptor “exclusive possession for the purpose of the agreement” in this case rose any higher than an exclusive possession apt or available - I am paraphrasing - to be deployed as a right if there were activities interfering with the mining which, after all, is the way in which the matter was construed and held by the majority in this Court in Ward, and, in our submission, no, that is this case, and that is why it is governed by Ward.

Finally, by way of preliminary observation, your Honour Justice Keane asked on an hypothesis concerning whatever authority De Rose might be thought to have might be applied why it would involve a minute by minute, as I think it was at one point extravagantly put by my friend, a minute by minute variation of the determination.

Now, this comes back to where I started with the absurdity of this Swiss cheese extinguishment and your Honour observed that for consideration by counsel the possibility that it was simply that the native title rights were rights that were available in accordance with the determination, that is the point of the determination, that is why it is called a “determination” and your Honour drew to attention in volume 2 of the appeal book, pages 553 to 554 - I do not need to take you to it, your Honours are familiar with it - subparagraph (5)(a)(i) – we would add 5(b)(i) - which do subject the native title rights to the law of the land and that includes the law which requires non-interference with mining activities pursuant to a lease granted under the validating act, the agreement validating act, in our submission that is a completely satisfying, straightforward way of finding that there is no inconsistency that produces extinguishment. Indeed, as a matter of ordinary logic there cannot be inconsistency between a right, the framing and content of which accepts that another right will prevail over it when occasions of conflict arise. The inconsistency is avoided.

Could I, in relation to that aspect of inconsistency, doubt the proposition that even without the authority of Ward on the question, it would be a viable means of discerning inconsistency that produces extinguishment to test by imagination the possibility of impossible conflict; that is, the impossibility of two people being in the same place at the same time doing different things. Our law is entirely familiar with the concurrent existence of rights in different people or entities, notwithstanding that it is easy to imagine particular exercise of two of those rights being impossible in the sense of the conflict involved in different people purporting to be in the same place at the same time doing different things.

There are very familiar, indeed – if you will forgive me a pathetic word play – pedestrian examples of this, the public highway. I have a right as a member of the public to be on the public highway. The neighbouring land owner also has a right to access from his land, including via vehicle, onto the public highway. It is a conflict of the most gruesome kind if we try to do that at the same time and in the same place exercise our different rights.

We have, of course, regulations, not to mention commonsense and the common law, to resolve that conflict, but nobody would ever dream of saying that here is an inconsistency of right. There is a potential conflict of particular exercise. Even without Ward, in our submission, one would never say that shows the right of the public to use a highway and the right of a neighbouring owner to access the highway are inconsistent rights indeed. I have picked the example precisely because they both converge on the public utility protected by the common law of highways, which include both passage by the public and entry into it.

One can multiply the example, all rights in common of the public; take a common law right to fish. It is not enough to see the public as if it is some solidary single entity. It is made up of individuals, each with rights that can be actionable. Obviously enough, if I have anchored my tinny in the favoured spot over the rock hole, nobody else can do that. But no one says that there is any inconsistency of a kind that suggests that my enjoyment of the public right is inconsistent with somebody else’s enjoyment of the public right.

There is a potential conflict in actuality, at particular times and particular places, to be solved either extra-legally or legally in a way that portends no difficulty for the concurrent existence of those rights. In our submission, as I say, Ward ought not to be seen as having somehow wrenched the logic of the matter away from what would follow in principle in any event concerning the existence of rights. They are not shown to be inconsistent simply and solely because one can imagine conflicting cases for their respective exercises.

Your Honours, may I then as quickly as I may go through the way in which we have outlined it in our document? There are of course, evocatively noted in this very case, that is in the agreement, the possibility of tenures or grants which would have had an extinguishing effect by reason of the reasoning in Ward and we have noted, and I do not need to elaborate, the possibility not taken up of special leases and other reserves, and if I can simply add to the references in our proposition 1, a reference to paragraph 62 of our written submissions.

In our submission, the arguments against us concerning what was said in Ward about those other kinds of grants or tenures, other kinds of rights, actually assist our argument by showing the contrast with the mining lease rights which were the subject of Ward and which are indistinguishable from the mining leases here. Could I go to the first of the passages that were relied upon in that regard at page 178 of 213 CLR Ward at paragraph 349, the conclusion in relation to the conditional purchase lease there being discussed was that as a matter of its construction:

the grantee . . . “obtained a right to exclusive possession . . . intended to continue in perpetuity”.

That, of course, is what was held by the same judges not to be true, indeed nothing resembling that, for the mining leases which provide the occasion for the mining authority today. The same is true at 368 to 369 concerning the leases of reserves, starting at page 181 of the report, the lease as is described in 369 on page 182 were:

as lessee of the land, as that term is understood in the general law . . . thus granted a right of exclusive possession of the land.

In other words, those other forms of tenure, the unrealised possibility of which in this case has been noted by us in our written submissions at 62, show what would happen on the other side of the line which is drawn in Ward. Now, the point relevantly about exclusive possession in those cases should not lead to a travesty of our argument.

It was suggested against us today that our argument entirely turns upon the exclusivity or exclusive possession proposition. That is not correct. What we have said about inconsistency in our written submission – but I do not need to go to – does not entirely turn on that. It is true, however, that the paradigm of the straightforward case is, as has been put against us, Fejo and a fee simple, or any lease with exclusive possession – true exclusive possession, as the two examples I have just taken you to show, because there the fee simple, the exclusive possession, the leasehold – there there is, of its core essence, a right to exclude everyone from the whole for any or no reason. That right cannot co-exist with a right of anybody, without the owner’s consent, entering for any purpose, which will include any native title purpose.

That is why that is such a straightforward proposition. That is why, in our submission, it is important for us to refute WA’s comment that exclusive possession is a difficult notion. It is not a difficult notion, and it is comprehensive in its effect and works extinguishment for that very reason.

So in answer to Justice Gageler’s question to our friend, our explanation of what “inconsistency” means is that it is the state of affairs which is produced when the existence of one right necessarily implies the non-existence of the other. That is why it is such a familiar proposition in this area with native title that if the traditional law and custom, as so often is the case, reveals that one of the native title rights was to control access to land then that will be a native title right which will be readily extinguished by the inconsistency emerging that somebody else controls access to land or has a right to enter land, because it necessarily is implied by the existence of a person to enter without consent or indeed to prohibit others from entering – it necessarily implies that there is no access controlled, the right to control access no longer exists, in the native title holder.

Proposition 2: could I develop that simply by going to some further passages in Ward. I can pass relatively quickly but, I hope, with appropriate emphasis over the very important passage, with great respect, to be found commencing on page 88 and, in particular – the whole needs to be read, of course – paragraphs 78 to 82. Enough has been read and your Honours have been taken to it; I will not read from it. It is our submission that it is impossible to read the consideration of arguments which are rejected and approaches which are approved, held to be correct, in that passage and to uphold at the same time the approach shown by the underlying premise of the argument against us.

Could I now then take you further to paragraphs 193 and 194? They are paragraphs, again without reading them, which make it, in our submission, crystal clear that there is no difficulty whatever with holding that rights are not inconsistent even though it must be that one will prevail over the other when cases of possible conflict arise; that is what those paragraphs hold.

To put it another way, the argument that we think has been put, somehow couched as not a challenge to Ward, against us, as follows, should be rejected. We think that argument is that inconsistency is shown when a conflict arises which requires one to prevail over the other, that is because they cannot both be simultaneously and at the same place enjoyed or exercised.

Paragraphs 193 and 194 scotch that as a possibility accepted in argument after leave is granted to reopen these fundamental, critical parts of Ward, which of course is the last thing that the appellant and the second respondent and South Australia as intervener has asked for.

GAGELER J: Mr Walker, paragraphs 193 and 194 are directed to the statutory regime. Do you say that applies equally?

MR WALKER: No, no, it is the concept of prevailing and that not producing inconsistency such as to require extinguishment that is the only proposition I get out of those paragraphs. Section 12M has no counterpart in this case.

HAYNE J: I would understand you to be attempting to meet an argument that there is inconsistency if there could be a conflict in exercise.

MR WALKER: That is it. That is all I am using it for. It scotches the notion that if there is a circumstance that can be imagined which would require one to prevail over the over, well, there, it is all over, there is inconsistency and there is extinguishment. That is all it does.

GAGELER J: Are we concerned in this case with whether one right prevailed over the other?

MR WALKER: No, because it is all set out in the determination. That was my opening point apropos Justice Keane’s comment. There is no contest about that. We come to - - -

FRENCH CJ: Because of the “other interests” provision.

MR WALKER: Quite. We come to Court saying there is no inconsistency; the yield or prevail is there. Now, it may be that in the determination the use of the word “inconsistent” is, if I may so, with great respect, artless, bearing in mind it is very important use in the jurisprudence of extinguishment, but it is after all a general English word and it can have different applications in different context.

But there are express provisions not bedevilled by that use of that word. There are provisions which, as your Honours have seen, have the yield and prevail. I do not want to make too much of a meal of it. That is all I was getting out of those paragraphs. Otherwise, as your Honour says, they are in a specific context that has no counterpart here.

The same is true, that is, we attempt to point to the same kind of support for our argument about there being no inconsistency producing extinguishment in this case from the discussion which is found in paragraphs 290 and 291 on pages 159 to 161 and, in particular, in paragraph 291 at the foot of page 160 to the top of page 161. It is remarking what might be called a hierarchy which does not, on the holding in Ward, entail necessarily, or in those cases at all, inconsistency producing extinguishment.

We may have misunderstood and, if so, I apologise to my friend, his answer to Justice Hayne’s question about what I will call the tool shed, the hut for the miners’ tools. There are two stages to the question: what happens when it is put up and what happens when it is taken down. Fejo and the nature of extinguishment, conceptually and legally, mean that the answer to the second part must be there is no change effected from whatever was caused by the hut going up. There is no reviver. That is why 109 is an imperfect analogy.

Now, in our submission, unless one has this absurd Swiss cheese notion, one is going back then to the dissenter’s view in Ward because the tool shed would necessarily prevent the exercise of native title rights while it is there. That, on the argument against us, is enough to signify inconsistency which produces extinguishment leading only to the dilemma does that mean for the square miles involved or does that only mean for the footprint of that which was brought in on the back of a truck? In our submission, that is where one leads to this unacceptable notion of a weird kind of Swiss cheese approach, invisible, it would appear, for a very long time.

Your Honours, reference was made – this is apropos our proposition 2 – in the appellant’s written submissions, paragraphs 60 and 61, to the support to be given for a characterisation of exclusive possession under the regimes in question here by the criminal law imposed by the Government Agreements Act which, as is with respect correctly pointed out in their paragraph 59, applies in this case.

FRENCH CJ: That is an after-1975 event. We get into tiger country of category D past Acts and all sorts of complications.

MR WALKER: Quite. Your Honours, we have answered that in paragraph - - -

FRENCH CJ: I know that the Solicitor had nothing to say about it orally and perhaps for good reason.

MR WALKER: No. Perhaps I will leave it in that happy state, your Honour. Paragraph 35 is where we have responded to it. Section 4 of that Act cannot possibly have that effect. Your Honours, I have said enough about proposition 3, and I do not want to respond further to that except in relation to BHP’s submissions. We, as we presently see the nature of the law that we would urge upon your Honours to be gathered from plain statements in Ward, submit that proposition 5 in BHP’s outline for address is simply contrary to Ward in relation to mining leases, and that it fails to observe the distinction which was so strongly drawn and demonstrated in Ward itself between the special leases and the mining leases.

FRENCH CJ: The notion that you avoid inconsistency by seeing the native title right as qualified by reference to the “other interests”, I suppose, must have some limit. There is a point at which the qualification will swallow up the right, is there not, and you move into the territory of inconsistency?

MR WALKER: Yes, and that is why we have proffered the proposition that there is an inconsistency that produces extinguishment when the existence of the one necessarily implies the non-existence of the other. That is why, as I say, the paradigm – and for good reason it is the paradigm, it is the one that includes the fullest degree of ownership we can imagine - the paradigm of fee simple or leasehold exclusive possession will extinguish because, as your Honour points out, it would not matter how much the native title owner protested that the native title would yield to the fee simple and the lease hold, that would not be a qualification, it would be a negation. There could be nothing left of right once the fee simple and exclusive possession was recognised.

During address, my learned friend, Mr Quinlan, for BHP was asked by Justice Gageler about the juristic means by which one obtained an exclusive possession in these mining leases of a kind that would produce the inconsistency with native title rights. If I understood the exchange correctly, my learned friend said, in effect – my words, not his – yes, The Moorcock is operating. This is necessary for business efficacy. It plainly is not.

Ward itself shows that mining leases do not need to have that exclusive possession. There can be what the statute and the agreement calls, in effect, exclusive possession for the purposes of mining. If we are right in that analysis, then that is an end, as we understand it, to the main plank in the argument producing inconsistency as advanced by BHP. I do not need further to elaborate our proposition 4 which has been covered in a deal of my opening observations and what I have said about the earlier propositions.

FRENCH CJ: No disrespect to your propositions in the outline but it just strikes me that 6 through to 9 are kind of concertinaed into the one proposition really which is covered by your qualification point.

MR WALKER: Your Honour actually anticipates what I am about to do.

FRENCH CJ: I am glad to hear that.

MR WALKER: Yes. In fact, it is not just 6 to 9, I think it is 5 to 9 – or 4 to 9 really - and I do not want to add anything further to that. During the course of argument on the matters covered by our propositions 4 to 9, it was – and emphatically put at the end of my learned friend’s argument for Western Australia, I think it was contingently, if he was pressed in relation to a test of inconsistency, then it would be Sir Gerard Brennan on page 87 of Wik.

Now, our short submission about that is the law is to be found in Ward, and that is all we really do need to say about it. But it has to be said that that is not a passage where his Honour was considering at all the notion that there could be co-existing – I stress co-existing rights, which includes in our form of argument not inconsistent rights, the particular exercise of which might produce conflicts from time to time and place to place, a circumstance which could, and appropriate cases must, be resolved by ascertaining which one prevails.

It is for those reasons, in our submission, that whatever else may be said about that passage at page 87 of Wik, it does not purport to be either a directed or complete statement about one detects inconsistency for the purposes of the law of extinguishment.

Your Honours, there was an argument put in relation to what might be called the super qualities of the rights obtained under these mining leases, the attributes which made them superior, so to speak, even to fee simple at common law, and they included that there would be no resumption of the mining apparatus and fixtures and they included that there would be no rezoning inconsistent with successful mining.

Now, leaving aside nice questions of how that would actually fare if there were a probably complete change of voting population in Western Australia, a change of government and an enactment of different legislation; leave that aside at the moment and taking the argument at its highest against us, in our submission, it is quite impossible to see how those two attributes, which I think are the two that were singled out as making this even better than fee simple, as if that made it even more likely to pose an inconsistency with native title, it is quite impossible to see how either of those would inform the impossibility of native title co-existing with that kind of mining lease.

To put it mildly, assurance that there would not be rezoning, something that most of us would not even dream of being available for our land, assurance that rezoning would not happen is scarcely, to adopt another phrase that has been used this afternoon, to impair or detract from the enjoyment of native title.

FRENCH CJ: Really this is just saying they do not logically engage with the concept of inconsistency.

MR WALKER: They have nothing whatever to do with the matter. It is another form of degree argument, that this is, as it were, a really big right in law just as it is a really big piece of infrastructure. These matters of degree, in our submission, do not engage at the level which the law concerning what is the state of affairs that may produce extinguishment requires.

Your Honours, that leaves only De Rose about which we need say no more than has already been said by the combination of our written submissions and to large part, the submissions of our learned friends. Your Honours, we had and have supplied even larger enlargements – this is an attempt to ingratiate myself, your Honours, but I do not need to go them at all. Everything that we were going to get from them has already been done by our learned friends. May it please, your Honours.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Solicitor.

MR DONALDSON: The battle of really large maps it seems, your Honours. Your Honours, can I deal with certain of my friend’s submissions. First, what my friend has referred to as the Swiss cheese effect and the difficulties that my friend has referred to there, I say this, your Honour. We do not advocate - and we share my friend’s criticism of what he has referred to as the so-called Swiss cheese effect - we do not and have not contended that that is the case in relation to the mining titles in this case. We sought to preserve to a degree the reasoning in De Rose in relation specifically to pastoral leases but the difficulties with that are as my friend has indicated.

My friend also suggested and was encouraged in doing so by Justice Hayne that there is no difference between the mining titles in this case and those that were considered in Ward in relation to the Argyle mining project.

HAYNE J: No, what I said was there is no difference between the argument you advanced and the argument that was advanced on behalf of Argyle.

MR DONALDSON: I am terribly sorry, your Honour. In relation to the Argyle mining leases, your Honours, the leases that were considered in the Ward case were granted pursuant to the Mining Act 1978 (WA). Under the Mining Act 1978 (WA) one of the purposes of that Act was to create further form of land tenure such as miscellaneous licences, for instance, pursuant to which certain work could be undertaken on mining areas and if your Honours look in due course at section 85 of the 1978 Mining Act it is our submission that the purposes there identified for a mining lease are more limited than those for which a 1904 Mining Act lease could be granted or, indeed, the mining leases considered in this particular matter. So, for instance, there is in equivalent in the 1978 Mining Act of section 48 of the 1904 Mining Act to which I took your Honours this morning.

Next, your Honours, my friend had a go at me, and I suppose it was fair enough, about my difficulty with the notion of exclusive possession. What I was seeking to convey, your Honours, earlier was that the difficulty with that notion of a reference to exclusive possession for particular purposes – and we have seen that throughout the Ward decision, that is, particular titles granted and said to confer exclusive possession for particular purposes – it may be there is less difficulty with the notion of what exclusive possession is at common law. Then the issue, of course, becomes characterising particular titles as giving rise to a common law notion of exclusive possession.

My friend dealt with briefly the special leases in Ward that were considered. Justice Hayne earlier made reference to those. I will not take your Honours back to the reasoning at paragraphs 356 and 368 through to 369 of Ward, but in those paragraphs – and if your Honours in due course look to the provisions of section 116 of the Land Act – there was no express statutory provision or in the form of the instruments of the special leases which are in the 21st schedule of the Land Act 1933 which conferred an express power to exclude, that is, there was no express statutory conferral of exclusive possession, nor was there that right conferred by the instruments themselves which were issued under section 116.

The reasoning at Ward at the paragraphs that I have identified comes to this. One looks at the purposes for which these special leases were granted and from those purposes infers – and it is an inference – infers that the grant of a special lease for those purposes carries necessarily with it a right to exclusive possession, that is, to exclude all for every purpose.

Now, on that understanding, your Honours, and if I have correctly put to your Honour the effect of the reasoning of those paragraphs of Ward, in this case of course much of what was done on the land here could have been done pursuant to special leases, and my learned friend, Mr Walker, accepted it in his oral submissions.

Well, if there had been special leases granted for the warehouse, for the quarrying, for various of the buildings that were constructed, if there had been special leases granted, then on the authority of Ward that would have extinguished native title, and as I took your Honours to the map earlier this morning, the area of the special leases were never even claimed in this claim and obvious because it was accepted that they were extinguished.

So it is, with the greatest respect, a most odd proposition to contend that, well, they could lawfully do everything that they have done under these mining leases and they could have lawfully done exactly the same things if they had got a special lease, and had they got a special lease that would have extinguished native title, but what they have done here has not extinguished native title, even though they are lawfully done pursuant to a title that confers a right upon the holders to do so.

Can I say this about my learned friend’s test for inconsistency which slid delightfully off my friend’s tongue of course? A state of affairs where the existence of one right necessarily carries with it the non-existence of another - - -

GAGELER J: Well, at least it is a test.

MR DONALDSON: I will give you – I was criticised over lunch for being impolite to your Honour - I will give you a test. What that test of course does not tell us at all is what “non-existence” means. On that test, if one thinks of, well, what does “non-existence” mean, on that understanding a fee simple title would not extinguish native title because one could accept that a fee simple title may come to an end. The grant of no title would carry with it the non-existence of particular native title rights.

Justice Gageler, this follows from Justice Brennan and Justice Gummow in Wik at page 185, assume that the whole of the rights able to be exercised under the title are exercised over the area of the title where such rights can be exercised. So that assumption is made. Look then at the native title rights that are claimed or here determined - that is in the appeal book at page 320 - and then ask whether the exercise of the rights pursuant to the title in accordance with the assumption made at the preface render the exercise of the native title rights impossible.

Interestingly, your Honour, the passage which my learned friend, Mr Hinton, took you to from Justice Gummow’s judgment in Wik at page 185 referred to Yarmouth. Justice Brennan at page 87 in Wik, the passage to which I took your Honours earlier today, his Honour’s footnote 345, which is authority for the notion that the law does not recognise the co-existence in different hands of two rights that cannot both be exercised at the same time is Yarmouth. That is the test which we posit, your Honours.

Your Honours, my friend also put to your Honours a somewhat utopian notion of co-existing rights; that is, the reality of it is that the law deals with competing rights in a sensible and mature way without one of them being extinguished by the other. That is simply, with respect, a reformulation of what Justice Barker has said in this case, and that is really there can never be extinguishment because it can be conceived that rights can be exercised consistently with each other, and that, in our submission, your Honours, is simply inconsistent with matters that have been found are in Ward.

My friend’s reference to “prevailing” in Ward at paragraph 194, as Justice Gageler pointed out, arose in the context of their Honours considering a non-exclusive pastoral lease, and 12M of the Western Australia Act is the equivalent of 23F of the Native Title Act, which, of course, invokes the non-extinguishment principle in 23G, the basis of which, of course, is that there is no extinguishment and simply the prevailing of a non-native title right over a native title right. If your Honours please.

FRENCH CJ: Thank you, Mr Solicitor. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.

AT 4.10 PM THE MATTER WAS ADJOURNED