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Western Australia v Ward (includes summary dated 3 Mar 2000 & corrigendum dated 23 Mar 2000) [2000] FCA 191 (3 March 2000)

Last Updated: 24 March 2000

Matter No. WG 6293 of 1998 THE STATE OF WESTERN AUSTRALIA & ORS v BEN WARD & ORS

Matter No. WG 6292 of 1998 CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD v BEN WARD & ORS

Matter No. WG 6294 of 1998 ALLIGATOR AIRWAYS PTY LTD & ORS v BEN WARD & ORS

Matter No. WG 6295 of 1998 ARGYLE DIAMOND MINES PTY LTD & ANOR v BEN WARD & ORS

Matter No. WG 6296 of 1998 THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS

Matter No. W 6020 of 1999 CECIL NINGARMARA & ORS v THE NORTHERN TERRITORY OF AUSTRALIA & ORS

BEAUMONT, von DOUSSA & NORTH JJ

PERTH

3 MARCH 2000

IN THE FEDERAL COURT

OF AUSTRALIA

WESTERN AUSTRALIA

DISTRICT REGISTRY

On appeal from a single judge of the Federal Court of Australia

JUDGES: BEAUMONT, von DOUSSA & NORTH JJ

DATE: 3 MARCH 2000

PLACE: PERTH

CORRIGENDUM

In the reasons for Judgment given by Justice North on 3 March 2000:

* On the two hundred and seventy-third (273^rd) page, seven hundred and seventy-eighth (778^th) paragraph, please correct the second line to read:

"these reasons entitled "Suspension of Native Title Rights and Interests" at 739-759, the basis"

* On the two hundred and eighty-fifth (285^th) page, eight hundred and eleventh (811^th) paragraph, please correct the first line to read:

"to above: par 789) at 28-29 discuss the temporal basis of the doctrine of estates in the"

Associate:

Dated:

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

3 March 2000

These are appeals, and a cross-appeal, against the first determination of native title in Western Australia made by this Court. The determination was made on 24 November 1998 by Justice Lee in favour of the Miriuwung and Gajerrong people. The claim covered an area of land and waters in the north-east of Western Australia, known as the East Kimberley District, and adjoining land in the Northern Territory. The total claim area was approximately 7,900 square kilometres and included part of the township of Kununurra, Lake Argyle and Lake Kununurra, part of the Ord River irrigation area and the Argyle Diamond Mine. The claim area also included some vacant Crown land and Crown land that had been leased or reserved for various purposes, including for conservation, preservation of Aboriginal art, mining and the Keep River National Park. At one time or another a great deal of the claim area has been the subject of pastoral leases.

The trial

The hearing of the trial before Justice Lee occupied 83 days with much of the applicants' primary evidence being taken at various sites within the claim area. The transcript of the trial ran to more than 9000 pages. Justice Lee's judgment was 277 pages.

The trial judge held that ordinarily native title is a communal interest in land, determined by reference to the Aboriginal community's traditional laws and customs and that community's connection with the land. The trial judge held that native title may be extinguished by an act of the Crown, but only if the Crown demonstrates a clear and plain intention to extinguish native title. Furthermore, the trial judge held that if rights over the land were granted to a third party in a way that regulated or modified the exercise of the native title rights, such as by a grant of a pastoral lease, licence or reserve, native title was not necessarily extinguished. For extinguishment to occur, the trial judge held that the rights granted must be permanently inconsistent with the native title rights and have the effect of removing all connection of the indigenous people with the land. Where some lesser effect was shown native title rights may be suspended, curtailed or otherwise regulated.

The trial judge held that native title was proved to exist over most of the area claimed, as the Miriuwung and Gajerrrong people had substantially maintained their connection with the land. The only extinguishment of that native title which had occurred was effected by the construction of roads, permanent public works, freehold grants and some reserves.

The appeal

The appeal was heard in Perth and lasted for 15 days, making it one of the longest appeals in this Court's history. The written submissions ran into thousands of pages. The hearing of the appeal was greatly assisted by the Court's technological facilities so that the CD Rom version of the transcript of the trial could be viewed by both counsel and the bench via computer screens centrally operated in Court.

This Full Court was called upon to consider a large number of issues. As a result, the judgments in this appeal are necessarily substantial. There are two judgments to be handed down today in these appeals - the majority judgment of Justices Beaumont and von Doussa, and the separate judgment of Justice North which dissents in part. The decision of the Court is as follows:

Connection of the claimants with the land

The existence of native title is a question of fact to be ascertained by evidence of the connection of the Aboriginal community with the land at the time of occupation and evidence of the maintenance of that connection since that time.

The judgment of the trial judge was based on a thorough analysis of evidence from many sources, including evidence from senior members of the Miriuwung and Gajerrong community as well as anthropological evidence. Both the majority and the dissenting judge uphold the trial judge's findings of fact in relation to the connection of the present Miriuwung and Gajerrong community with the land claimed, and their connection with the Aboriginal people in occupation of the claim area at the time of sovereignty.

The other major issue dealt with by the Full Court is whether or not native title has been extinguished.

Extinguishment of native title

The majority judgment finds that the principles by which the trial judge determined whether extinguishment had occurred departs from the test approved by the High Court in Wik and Fejo. In relation to the rights granted by the Crown, there is no requirement in Australian law that the rights be permanently inconsistent with native title, nor that the rights actually be exercised.

Furthermore, the majority holds that it is possible for some of the "bundle of rights", which together make up native title, to be extinguished. Where this happens, "partial extinguishment" occurs. This concept has not been authoritatively determined by the High Court in the cases that have come before it to date. Nor has it been determined by a Full Court of this Court until this case.

The majority finds that in relation to the pastoral leases, the grant of the leases in the claim area partially extinguished native title. Most of the pastoral leases contained reservations which protected Aboriginal peoples' rights of access and use of the land under lease. In Western Australia this is limited to areas that are unenclosed and unimproved. This has the result that there may be areas within the Western Australian pastoral leases where native title has been extinguished altogether. In the Northern Territory the majority finds that there has not been total extinguishment in any of the areas, as the explicit protection of the Aboriginal rights is not limited in the same way.

The majority agrees with the trial judge that the creation of the Keep River National Park does not extinguish native title. Similarly, reservations of land for a public purpose do not automatically cause extinguishment. However, the majority holds that native title has been wholly extinguished in respect of the areas covered by the Ord Irrigation Project and the Argyle Diamond Project. The nature of such major projects and the range of activities involved are completely inconsistent with the continued enjoyment of native title. The majority also finds that native title rights in minerals and petroleum in the claim area have been wholly extinguished by legislation. Further, the majority holds that the grant of mining leases in the Western Australian portion of the claim area has wholly extinguished native title in the areas covered by the leases.

The dissenting judge, Justice North, differs from the majority decision primarily on the question of the proper approach to extinguishment. His Honour holds that native title is not a bundle of rights but a fundamental right to land. Accordingly, there can be no "partial extinguishment" of some of those rights. His Honour holds that extinguishment will only occur where there is a total and permanent inconsistency between the rights granted and the native title. Where a lesser degree of inconsistency exists, native title is not extinguished but merely temporarily suspended or impaired.

Justice North agrees with the trial judge's interpretation of the law relating to extinguishment and his Honour's application of that law to the claim in question. Justice North also recognises a native title right to maintain, protect and prevent the misuse of cultural knowledge.

In the result, the appeals fail on the "connection" issues, but by a majority (Justices Beaumont and von Doussa) the appeals are allowed in part on the extinguishment issues. Justice North, dissenting, would have dismissed the appeals. The cross-appeal is dismissed.

A draft determination which identifies the areas where native title is held to exist, and where it is wholly or partially extinguished, is appended to the majority judgment, and to this summary.

THE COURT ORDERS:

1. That Appeals Nos. WG 6293 of 1998, WG 6292 of 1998, WG 6294 of 1998, WG 6295 of 1998 and WG 6296 of 1998 be allowed in part.

2. That the Cross-Appeal by the Kimberley Land Council in Appeal No. WG 6293 of 1998 be dismissed.

3. That Appeal No. W 6020 of 1999 be dismissed.

4. That the orders, declarations and determination made in Action No. WAG 6001 of 1995 be set aside and in lieu thereof there be orders, declarations and a determination which reflect the reasons for judgment of the majority of this Court.

5. That the parties be at liberty within twenty-eight days to file and serve written submissions on the draft determination published this day with the reasons for judgment.

6. That the orders as to the costs of the trial made on 6 May 1999 be set aside and that there be no order as to costs either of the trial or of the appeals or of the Cross-Appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Native title exists in the "determination area" save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal.

2. Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.

3. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in:

The whole of the land in the Glen Hill pastoral lease;

The whole of Reserve 40260;

Booroongoong (Lacrosse Island);

Kanggurryu (Rocky Island);

The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, being the mainland lying outside the limits of the former Carlton Hill Station pastoral lease 3114/1058;

The whole of NT portion 3541 (Policemans Hole);

The whole of NT portion 3542 (Bucket Springs), and

The whole of NT portion 3863 (Bubble Bubble)

are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area.

4. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for "Use and Benefit of Aboriginal Inhabitants", Reserve 31504 for "Arts and Historical -- Aborigines" and Reserve 32446 "Native Paintings", being reserves within the Ord Project area to which s 47A of the Native Title Act 1993 (Cth) applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the Ord Project.

5. Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows:

(a) a right to possess, occupy, use and enjoy the land;

(b) a right to make decisions about the use and enjoyment of the land;

(c) a right of access to the land;

(d) a right to use and enjoy the traditional resources of the land;

(e) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area.

6. The nature and extent of other interests in relation to the determination area are the interests created by the Crown as set out in the Third Schedule.

7. There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT).

8. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights.

9. The native title rights and interests referred to in paragraph 5 hereof do not confer on the common law holders possession, occupation, use and enjoyment of land and waters to the exclusion of all others.

10. The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia.

11. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by the common law holders.

Click Here for Picture:http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1998_147801.gif

Native title has been wholly extinguished in the following parts of the determination area:

1. All the land identified in Exhibits 21A and 21B as:

(i) Diversion Dam and Works Area (1960);

(ii) First Farm Area (1960);

(iii) Second Farm Area (1961);

(iv) Kununurra Townsite (1961) except for the area now comprised in Reserve 37883 - Mirima (Hidden Valley) National Park;

(v) Third Farm Area (1960-1962);

(vi) Kimberley Research Station Extension (1963);

(vii) Fourth Farm Area and Levy Bank (1967);

(viii) Packsaddle Farm Area (1972 and 1975);

(ix) The lands resumed from the Lissadell and Texas Downs Pastoral Leases in 1972, which now comprise part of Reserve 31165 (and include that part of Special Agreement Lease M259SA which is within the determination area).

2. The land formerly comprised in the Argyle Downs Pastoral Lease, and the freehold land surrounding the former Argyle Downs homestead (King Location 2) acquired by the Minister of Works under an Agreement for Sale signed on 23 November 1970.

3. Land in Reserves (being lands outside the areas already described in this Schedule).

(i) The whole of former Reserve 16729 ("Use and Requirements of the Government of the State").

(ii) The whole of Reserve 34724 ("Preservation of Historic Relics").

(iii) The whole of Reserve 40978 ("Repeater Station Site").

(iv) The whole of Reserve 39016 ("Repeater Station Site").

(v) That part of Reserve 42710 ("Quarantine Checkpoint") on which ablution blocks, a parking lot, power generator, fuel and water tanks, a tourist information shelter, shed and facilities for the Quarantine Checkpoint have been constructed and a reasonable curtilage surrounding those constructions.

4. Land in leases (being lands outside the areas already described in this Schedule).

(1) Pastoral leases

(a) Those parts of pastoral leases granted in the determination area under the Land Regulations 1882 (WA), the Land Regulations 1887 (WA) and the Land Act 1898 (WA) which were "enclosed and improved" within the meaning of the reservations in favour of Aboriginal people contained in the said pastoral leases.

(b) Those parts of pastoral leases granted in the determination area under the Land Act 1933 (WA) which were or are enclosed or improved within the meaning of s 106(2) of the Land Act 1933. Without limiting the generality of this subparagraph of the determination, it is declared that in land the subject of pastoral leases 3114/640 (Ivanhoe Station), 3114/1176 (Carlton Hill Station), 3114/1001 (Lissadell Station) and 3114/995 (Texas Downs Station) the areas agreed as "enclosures" in Exhibit 55, Schedules 1A to 1F, are enclosed lands within the meaning of s 106(2).

(ii) Other leases

The whole of the land in Lease 152/140 (Wallace and Others);

The whole of the land in lease 332/1175 (R G Skuthorp) being portion of Reserve 1059;

The whole of the land in lease 332/2177 (G & J Harman) being portion of Reserve 1061.

(iii) Mining Leases

M80/012 in area 95C, 96;

M80/014 in area 95C, 96;

M80/339 in area 95C, 96

M80/347 in area 5;

M80/401 in area 95C, 96

M80/402 in area 96;

M80/360 in area 29, 95M

M80/079 in area 29, 95M

Other interests in the determination area are of the following kind:

(a) Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease made for the purpose of the reserve.

(b) Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease made for the purpose of the reserve.

(c) Interests of lessees under:

(i) Leases granted under the Land Act 1933 (WA);

(ii) Leases granted under the Crown Lands Act 1978 (NT);

(iii) Leases granted under the Special Purposes Leases Act 1953 (NT);

(iv) Leases granted under the Mining Act 1978 (WA);

(v) Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth).

(d) Interests of licensees under:

(i) Licences issued under the Land Act 1933 (WA);

(ii) Licences issued under the Fish Resources Management Act 1994 (WA);

(iii) Licences issued under the Jetties Act 1926 (WA);

(iv) Licences issued under the Mining Act 1978 (WA);

(v) Licences issued under the Wildlife Conservation Act 1950 (WA);

(vi) Licences issued under the  Rights in Water and Irrigation Act 1914  (WA);

(vii) Licences issued under the Transport Co-ordination Act 1966 (WA);

(e) Interests of holders of permits issued under:

(i) The Land Act 1933 (WA);

(ii) The Ord Irrigation District By-Laws under the  Rights in Water and Irrigation Act 1914  (WA);

(f) Interests of holders of tenements under the Mining Act 1904 (WA).

(g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

(h) Interests of grantees under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT) and the Crown Lands Act 1978 (NT).

(i) Other interests obtained by reason of provisions of legislation of the State, Territory or Commonwealth.

(j) Other interests held by members of the public arising under the common law.

Native Title - meaning of native title - whether native title a bundle of rights - whether native title is a right to land - whether native title includes a right to maintain, protect and prevent the misuse of cultural knowledge - proof of native title - continuing connection - physical presence on the land not essential - proof of biological descent - observance of traditional laws and customs - estate groups within a wider community - overlapping of communities.

Native Title - determination of native title under Native Title Act 1993 (Cth) - requirements of s 225 - form of determination - identification of native title holders - jurisdiction to make a determination in favour of Aboriginal community in the absence of a referral to the Court under s 74 of an application for a determination of native title - effect of Native Title Amendment Act 1998 (Cth) - whether determination must cover the whole of the claim area.

Native Title - extinguishment - meaning of extinguishment - meaning of inconsistency - partial extinguishment - co-existence of rights to occupy, possess, use and enjoy - reasonable user - onus of proof - application of the presumption of regulatory in Crown grants - resumptions and acquisitions of Crown land from pastoral leases - creation and vesting of reserves - extinguishment by grant of leases - pastoral leases reserving rights of access for Aboriginal people - Western Australian mining leases and tenements - special leases - leases of reserves - conditional purchase leases - grants to third parties - permits to occupy Crown land prior to issue of Crown grant - whether extinguishment by the vesting of a national park - leases to Northern Territory Conservation Land Corporation - public works - whether extinguishment by the proclamation of an "Irrigation District" - whether extinguishment by declaration of a townsite - whether extinguishment by creation of a lake - whether extinguishment by dedication of land for the purpose of roads - extinguishment by legislation - wildlife conservation legislation - national parks legislation - application of limitation periods to native title claims.

Native Title - suspension - meaning of suspension - whether native title can be suspended.

Native Title - Native Title Amendment Act 1998 (Cth) - Titles Validation Act 1995 (WA) - occupation of land by native title claimant group under s 47A Native Title Act.

Native Title Act 1993 (Cth)

Native Title Amendment Act 1998 (Cth)

Mining Act 1978 (WA)

Petroleum Act 1967 (WA)

Territory Parks and Wildlife Conservation Act 1976 (NT)

Parks and Wildlife Commission Act 1980 (NT)

Lands Acquisition Act 1979 (NT)

Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT)

Crown Lands Act (NT)

Jetties Act 1926 (WA)

Land Act 1933 (WA)

Land Act Amendment Act (No 2) 1980 (WA)

Seas and Submerged Lands Act 1973 (Cth)

Racial Discrimination Act 1975 (Cth)

Fauna Conservation Act 1974 (Qld)

Constitution Act 1982 (Can)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999

Aboriginal Councils and Associations Act 1976 (Cth)

Sale of Waste Lands Act 1842 (Imp)

Land Regulations 1851 (WA)

Land Regulations for the Kimberley District 1880 (WA)

Land Regulations 1882 (WA)

Land Regulations 1887 (WA)

Land Act 1898 (WA)

Land Act Amendment Act 1934 (WA)

Mining Act 1904 (WA)

Petroleum Act 1936 (WA)

Land Drainage Act 1925 (WA)

Wildlife Conservation Act 1950 (WA)

Conservation and Land Management Act 1984 (WA)

Land Act Amendment Act 1963 (WA)

Crown Lands Ordinance 1927 (Cth)

Crown Lands Ordinance 1931 (Cth)

Special Purposes Leases Act 1953 (NT)

Validation (Native Title) Act 1994 (NT)

Titles Validation Act 1995 (WA)

Limitation Act 1935 (WA)

Crown Suits Act 1947 (WA)

The Constitution

 Rights in Water and Irrigation Act 1914  (WA)

Public Works Act 1902 (WA)

Land Administration Act 1997 (WA)

National Parks Authority Act 1976 (WA)

Fauna Protection Act 1950 (WA)

Fauna Conservation Act 1950 (WA)

Aboriginal Affairs Planning Authority Act 1972 (WA)

Conservation and Land Management Act 1984 (WA)

Agriculture and Related Resources Protection (Property Quarantine) Regulations 1981

Aborigines Act 1905 (WA)

Western Australian Constitution Act 1890 (Imp)

Aboriginal Heritage Act 1972 (WA)

Mining Act 1904 (WA)

Titles Validation Amendment Act 1999 (WA)

Federal Court of Australia Act 1976 (Cth)

Petroleum Act 1936 (WA)

Minerals (Acquisition) Ordinance 1953 (Cth)

Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA)

Ward & Others v State of Western Australia and Others [1998] FCA 1478; (1998) 159 ALR 483 referred to

Northern Territory v Lane (1995) 138 ALR 544 referred to

Ward and Others v State of Western Australia and Others [1999] FCA 580; (1999) 163 ALR 149 referred to

Australian Breeders Co-Operative Society Limited v Jones & Ors [1997] FCA 1405; (1997) 150 ALR 488 cited

Amadio Pty Ltd v Henderson [1998] FCA 823; (1998) 81 FCR 149 cited

Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 applied

Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 applied

North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 applied

The Wik Peoples v The State of Queensland [1994] FCA 967; (1994) 49 FCR 1 cited

The Wik Peoples v State of Queensland (1996) 187 CLR 1 applied

The Wik Peoples v State of Queensland (1996) 63 FCR 450 referred to

Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 applied

Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 applied

The Commonwealth of Australia v Yarmirr [1999] FCA 1668 discussed

Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 considered

Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 cited

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited

Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 cited

Shaw v Wolf (1998) 163 ALR 205 referred to

Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470 referred to

Ernst & Young v Butte Mining Plc [1996] 1 WLR 1605 cited

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 cited

Wheat v E Lacon and Co Ltd [1966] UKHL 1; [1966] AC 552 cited

Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 cited

Glenwood Lumber Co Ltd v Phillips [1904] AC 405 referred to

Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 referred to

Street v Mountford [1985] UKHL 4; [1985] AC 809 referred to

Bruton v London & Quadrant Housing Trust [1999] UKHL 26; [1999] 3 WLR 150 referred to

KJRR Pty Ltd v Commissioner of State Revenue (1999) 99 ATC 4335 referred to

Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 cited

Goldsworthy Mining Limited v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 cited

Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177 cited

Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd [1925] HCA 38; (1925) 36 CLR 340 cited

Boyle v Holcroft [1905] 1 IR 245 cited

Peech v Best [1931] 1 KB 1 cited

Mason v Clarke (1955) AC 778 cited

Southwark London Borough Council v Tanner and Others [1999] UKHL 40; [1999] 3 WLR 939 referred to

Jones v Pritchard [1908] 1 Ch 630 referred to

Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966 referred to

Nickells v Melbourne Corporation [1938] HCA 14; (1938) 59 CLR 219 referred to

The Queen v Kearney; ex parte Japanangka (1984) 158 CLR 39 cited

Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401 followed

Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206 referred to

Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 152 ALR 294 cited

Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 cited

City of Perth v Crystal Park Limited [1940] HCA 35; (1940) 64 CLR 153 followed

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 cited

Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404 referred to

Yarmirr v Northern Territory (1998) 82 FCR 533 considered

Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 referred to

Woolley v Attorney-General of Victoria (1877) 2 App Cas 163 referred to

Toomer v Witsell [1948] USSC 105; 334 US 385 (1948) referred to

Hughes v Oklahoma [1979] USSC 74; 441 US 322 (1979) referred to

Kean v Commonwealth (1963) 5 FLR 432 cited

Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467 considered

Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513 considered

Gowan v Christie [1873] LR 2 Sc & Div 273 referred to

I.C.I. Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VicRp 48; (1976) 11 ALR 324 considered

I.C.I Alkali (Australia) Pty Limited (in vol liq) v Federal Commissioner of Taxation [1916] HCA 67; (1978) 22 ALR 465 cited

In re Aldam's Settled Estate [1902] 2 Ch 46 referred to

Commissioner of Stamp Duties (NSW) v Henry [1964] HCA 4; (1964) 114 CLR 322 referred to

Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 referred to

Moore and Scroope v Western Australia [1907] HCA 56; (1907) 5 CLR 326 discussed

Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342 cited

Petreski v Cargill (1987) 18 FCR 68 cited

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 considered

Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317 cited

Mason v Tritton (1994) 34 NSWLR 572 cited

Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 cited

Johnson v McIntosh [1823] USSC 22; (1823) 8 Wheat 543 cited

Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 cited

Bulun Bulun v R&T Textiles [1998] FCA 1082; (1998) 157 ALR 193 cited

P Hasluck, Black Australians (2^nd ed), Melbourne University Press, 1970

M Durack, Kings in Grass Castles, Great Britain: Corgi Books, 1973

K Gray and S Gray, "The Idea of Property in Land", in Bright and Dewar (eds) Land Law:

Themes and Perspectives (1998) 15

Kaberry, Aboriginal Woman: Sacred and Profane, George Routledge & Sons Ltd, London, 1939

Simpson, A History of the Land Law (2^nd ed 1986)

Lawson and Rudden, The Law of Property (2^nd ed 1982)

Megarry and Wade, The Law of Real Property (6^th ed 2000)

Matter No. WG 6293 of 1998 THE STATE OF WESTERN AUSTRALIA & ORS v BEN WARD & ORS

Matter No. WG 6292 of 1998 CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD v BEN WARD & ORS

Matter No. WG 6294 of 1998 ALLIGATOR AIRWAYS PTY LTD & ORS v BEN WARD & ORS

Matter No. WG 6295 of 1998 ARGYLE DIAMOND MINES PTY LTD & ANOR v BEN WARD & ORS

Matter No. WG 6296 of 1998 THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS

Matter No. W 6020 of 1999 CECIL NINGARMARA & ORS v THE NORTHERN TERRITORY OF AUSTRALIA & ORS

BEAUMONT, von DOUSSA & NORTH JJ

PERTH

3 MARCH 2000

IN THE FEDERAL COURT

OF AUSTRALIA

WESTERN AUSTRALIA

DISTRICT REGISTRY

On appeal from a single judge of the Federal Court of Australia

No. WG 6293 of 1998

BETWEEN:

THE STATE OF WESTERN AUSTRALIA & ORS

Appellants

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

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

Second Respondents

and

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

and

COMMONWEALTH OF AUSTRALIA

Intervener

and

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Cross Appellant

and

THE STATE OF WESTERN AUSTRALIA

Cross Respondent

No. WG 6292 of 1998

BETWEEN:

CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD

Appellants

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

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

Second Respondents

No. WG 6294 of 1998

BETWEEN:

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

Appellants

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

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

Second Respondents

No. WG 6295 of 1998

BETWEEN:

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

Appellants

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

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

Second Respondents

and

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

and

THE STATE OF WESTERN AUSTRALIA

Fourth Respondent

No. WG 6296 of 1998

BETWEEN:

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

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

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

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

Second Respondents

and

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

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

and

COMMONWEALTH OF AUSTRALIA

Intervener

No. W 6020 of 1999

BETWEEN:

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

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

and

STATE OF WESTERN AUSTRALIA

Second Respondent

JUDGES: BEAUMONT, von DOUSSA & NORTH JJ

DATE OF ORDER: 3 MARCH 2000

WHERE MADE: PERTH

THE COURT ORDERS:

1. That Appeals Nos. WG 6293 of 1998, WG 6292 of 1998, WG 6294 of 1998, WG 6295 of 1998 and WG 6296 of 1998 be allowed in part.

2. That the Cross-Appeal by the Kimberley Land Council in Appeal No. WG 6293 of 1998 be dismissed.

3. That Appeal No. W 6020 of 1999 be dismissed.

4. That the orders, declarations and determination made in Action No. WAG 6001 of 1995 be set aside and in lieu thereof there be orders, declarations and a determination which reflect the reasons for judgment of the majority of this Court.

5. That the parties be at liberty within twenty-eight days to file and serve written submissions on the draft determination published this day with the reasons for judgment.

6. That the orders as to the costs of the trial made on 6 May 1999 be set aside and that there be no order as to costs either of the trial or of the appeals or of the Cross-Appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA

WESTERN AUSTRALIA

DISTRICT REGISTRY

On appeal from a single judge of the Federal Court of Australia

JUDGES: BEAUMONT, von DOUSSA & NORTH JJ

DATE: 3 MARCH 2000

PLACE: PERTH

BEAUMONT & von DOUSSA JJ:

Paragraph

Background 2

Parties at trial 22

Judgment at first instance 40

The Appeals 44

Common Law Native Title 55

Partial Extinguishment 88

Onus of Proof of Extinguishment 113

Summary of findings at trial on native title issues 121

Findings on Aboriginal connection with the claim area at sovereignty 122

Aboriginal connection with the claim area after sovereignty 125

(a) Historical evidence 127

(b) Linguistic evidence 141

(c) "Primary" evidence of applicants 145

(d) Anthropological evidence 146

(e) Genealogical evidence 153

(f) Observance of traditional laws, customs and practices to maintain

connection with prior community and with the land 157

(g) Conclusions 160

Boundaries of Miriuwung and Gajerrong Land 163

Miriuwung boundaries 164

Gajerrong boundaries 167

Claims of the Territory applicants and Balangarra Peoples 169

Arguments on Appeal 170

Jurisdiction issue, and form of the determination 171

Challenges to factual findings on native title issues other than extinguishment 220

Approach of Full Court 222

Requirements of "biological descent" and "mutual recognition" 229

Miriuwung and Gajerrong community 239

Continuing connection 240

The Balangarra Peoples 264

Malngin and Gija estates 272

Doolboong, Wardenybeng & Goolawarreng 280

Extinguishment 281

Pastoral Leases 282

(i) Western Australia 293

(ii) Northern Territory 332

Other Territory Tenures - Keep River National Park and Leases to

Conservation Land Corporation 344

Freehold interests in the State 367

(i) Crown grants 367

(ii) Permit to occupy 370

Roads 374

Creation of reserves in the State 377

Limitation Act 1935 (WA) 392

Proclamation of the Ord Irrigation District 396

Proclamation of townsite of Kununurra 407

Resumption and acquisition of Crown lands from pastoral leases for

Ord River Irrigation Project and other purposes 407

Use of reserves 444

(i) Townsite reserves 444

(ii) Other reserves 453

Legislation 493

(i) Conservation of wildlife and flora 493

(ii) Noogoora Burr Quarantine Area 509

(iii) Aborigines Act 1905 (WA) 510

Interests in Minerals (including Petroleum) 512

(i) General 512

(ii) The Argyle mining lease 546

(iii) Other mining tenements 573

Leases 596

(i) Conditional purchase leases under s 62 of the Land Act 1898 (WA) 597

(ii) Special leases under r 114 of the Land Regulations 1887,

s 152 of the Land Act 1898 (WA) and

ss 116 and 117 of the Land Act 1933 (WA) 609

(iii) Leases of reserves under s 41a of the Land Act 1898 (WA) and

s 32 of the Land Act 1933 (WA) 629

(iv) Leases of reserves under s 33 of the Land Act 1933 (WA) 656

(v) Leases of reserves under the Aboriginal Affairs Planning Authority

Act 1972 (WA) 657

Creation of Lake Kununurra and Lake Argyle 658

Titles Validation Amendment Act 1999 (WA) 659

Fishing 660

Disposition of Appeals 661

Costs 668

1 There are six appeals before the Court. Five appeals (the "principal appeals") are against orders made by Lee J on 24 November 1998 which determined that native title exists in the "determination area" being part of the claim area identified in an application lodged under the Native Title Act 1993 (Cth) (the NTA) on 6 April 1994. His Honour determined that native title is held by the Miriuwung and Gajerrong people, and in respect of that part of the "determination area" known as Booroongoong (Lacrosse Island) native title is also held by the Balangarra Peoples. The decision under appeal is reported as Ward and Others v State of Western Australia and Others [1998] FCA 1478; (1998) 159 ALR 483. In the course of these reasons references to the judgment will be identified by pages of this report. The sixth appeal concerns a consequential costs order.

Background

2 The application for determination of native title was commenced on behalf of the Miriuwung and Gajerrong people pursuant to ss 13(1) and 61(1) of the NTA as it then stood (the old Act). The NTA was later substantially amended by the Native Title Amendment Act 1998 (Cth) which came into operation on 30 September 1998 (the new Act). The description of the area over which native title was claimed covered land and waters in the north of Western Australia (the State) and adjacent land in the Northern Territory (the Territory). The main part of the claim area was in the north-east of the State. The remainder is a contiguous part in the Territory (the Territory area).

3 The claim area lies generally within the region known as the East Kimberley. The claim area includes parts of the present township of Kununurra, and Lake Kununurra and Lake Argyle. The total claim area is approximately 7,900 square kilometres. The claim area represents a considerable variety of ecological areas ranging from mangrove coastal flats and drowned mouths of river valleys at the northern and westernmost physical boundaries to grassy alluvial plains supporting savanna forests and woodlands, deep gorges cut between sandstone divides and massive limestone outcrops associated with underlying basalt. Climatically the area lies within the tropical and sub-tropical zones, but most of the land surface experiences arid to semi-arid conditions characterised by high temperatures and winter drought. From approximately December to April the area comes under the influence of the "wet" season. The "dry" season follows, becoming warm and dusty around mid-August, continuing to late October or early November when rain may begin.

4 The claim area concerned vacant Crown land, reserved Crown land, Crown land in a pastoral lease granted to the Aboriginal Lands Trust, and several small areas of freehold land. Waters in the claim area include water situated within the inter-tidal zone.

5 Separate claims for the determination of native title have been made, but not yet determined, by the Miriuwung and Gajerrong people in respect of land which adjoins the claim area. To the north of Kununurra, and extending westward to the coastal areas and to the south-east, the Miriuwung and Gajerrong people have made application for a determination in respect of a large area of land in the State held under pastoral leases issued under State legislation. The Miriuwung and Gajerrong people have also made application for the determination of native title in respect of a large adjoining area of land in the Territory held under pastoral leases issued under Territory legislation.

6 It is necessary to consider the history of this area, and to consider how European settlers came to the region and made use of the land to understand how the claim area is distinguished from other land in the region and to understand the issues raised in the appeals. It is convenient to repeat that history from the judgment of Lee J at ALR 489-491 which the parties have accepted on appeal as an accurate summary.

7 Land in the East Kimberley was not made available to settlers by the Crown until late in the nineteenth century when a report on an expedition to the region, prepared by explorer and Crown surveyor Alexander Forrest and published in 1879, indicated that the area would be suitable for pastoral activities. Forrest stated that the Aboriginal people were friendly and in his view they were unlikely to be hostile to settlers, although he noted that they would have to learn that the cattle that would come with settlers would not be available for hunting. As Sir Paul Hasluck commented in his work Black Australians, 2^nd ed, Melbourne University Press, Melbourne, 1970, Aboriginal people in the north of Western Australia were left to "learn" of the effects of European settlement in their region without guidance or protection from the Crown (at 63):

"No attempt was made in entering into this vast new region to prepare the natives for contact, to instruct them, to give them special protection or to ensure either their legal equality or their livelihood.

As settlement spread to remote corners of the colony the difficulty of doing anything became an excuse for forgetting that it was ever hoped to do something. Official intentions shrank. The local government ignored situations that were awkward or beyond its capacity to handle and the Colonial Office also overlooked or was unaware of any need for a positive policy."

8 The first grants of rights to depasture stock in the region were for land undefined by survey. Pastoral rights were applied for by marking on maps the approximate positions of the areas sought. In 1881 two speculators acquired pastoral rights to approximately 800,000 hectares by marking off an area that was assumed to follow the Ord River, on the understanding that when the course of the Ord River was eventually mapped the pastoral areas would be transferred to match the course of the river. Shortly thereafter, a group of pastoralists from the eastern colonies, among them Durack, Emanuel and Kilfoyle, reserved approximately one million hectares, including land on the Ord River, wherever the course of that river may be shown to be by subsequent survey and mapping: M Durack, Kings in Grass Castles, Corgi Books, Great Britain, 1973 (first published 1959) pp 209-10. To discourage speculators the Land Regulations for the Kimberley District 1880 (WA) had provided that lands unstocked or understocked after the first two years of a pastoral lease be forfeited. By the end of 1883 approximately twenty million hectares of the Kimberley had been included in pastoral leases. Within six months of that date pastoral leases covering almost one quarter of that area had been surrendered or forfeited. Further leases were abandoned over the next two years and by the end of 1885 the core of the Kimberley pastoral industry remained. That was further reduced in the 1920s when a downturn in the industry caused approximately four million hectares of pastoral lease land to be abandoned or forfeited for non-payment of rent or non-compliance with conditions. The only town in the region was the port of Wyndham founded in 1886. For many years settlers depended upon sea transport for travel to and from the East Kimberley and for delivery of supplies and export of cattle and frozen meat. An abattoir and meat freezing works operated at Wyndham from 1919 until 1985. The East Kimberley pastoral industry was based on small areas of land of high quality surrounded by large areas of land of very low potential. After 100 years of pastoral activity, it would be reported that over sixty per cent of the pastoral area of the East Kimberley had very low cattle carrying capacity, in excess of 125 hectares being required to support each head of cattle. Further, much of the Crown land used for pastoral leases was grossly degraded by the impact of cattle on the soil and pasture and by the high rates of soil erosion which followed in each wet season.

9 Soon after the pastoral industry was established in the East Kimberley it was realised that profitability and sustainability of pastoral activities in the area were subject to a number of limitations (W J Wilkin, The Ord Irrigation Project (Ex 21(a) p 2)):

"At all times pastoralists had to contend with extreme isolation, a severe climate, communication and transport difficulties, access problems in the wet season, shortage of stock feed in the long dry season and the low carrying capacity of much of the area. Consequently, settlement of the Kimberley region was sparse and the early hopes for the development of the region were not realised."

10 Development of irrigated land for tropical agriculture was given early consideration. By 1926 surveys of the Ord River environs had identified approximately 60,000 hectares of land as suitable for irrigated agriculture. That land began at the Packsaddle and Ivanhoe Plains on the Ord River and extended to the north-west to Carlton Plains and Mantinea Flats on the Ord River and to the north-east to the Weaber, Knox Creek and Keep River Plains, part of which was in the Territory. In 1941 potential dam sites on the Ord River were identified. In the same year the Department of Agriculture began trial plots of irrigated pastures on approximately five hectares of land on the Ivanhoe pastoral lease situated near the Ord River, now an area of vacant Crown land by Lake Kununurra. In 1945 an agricultural experiment and research station (the Kimberley Research Station) was established on the east bank of the Ord River on land excised from the Ivanhoe pastoral lease. Engineering studies for construction of a diversion dam, main storage dam, and an irrigation system for an area of irrigated land of 60,000 hectares began in the same year. Eventually, an Ord River Irrigation Project (the Ord Project) comprising four stages was proposed although the scheme ultimately approved was to be carried out in only three stages. The first stage involved construction of the diversion dam near the Packsaddle and Ivanhoe Plains, irrigation of approximately 10,000 hectares of land on those plains, and creation of a new town to serve the area. The second stage was the construction of the main dam and irrigation works to irrigate the remaining 50,000-60,000 hectares. The third stage was the construction of a hydro-electric power station on the main dam and reticulation of electrical power.

11 Between 1959 and 1962 land was resumed by the State from the Ivanhoe pastoral lease for the first stage of the Ord Project. In 1961 a town plan was prepared and the townsite of Kununurra declared at which time the sale of freehold lots for businesses and residences within the townsite began. The diversion dam was completed in 1962. The water impounded behind the dam, Lake Kununurra, covered an area of approximately twenty square kilometres. By the end of 1965 almost the whole of the 10,000 hectares of irrigated land had been divided into lots and leased by the State on terms which included a right to purchase the freehold interest in the lots upon performance of certain conditions.

12 In 1967 more land was resumed from the Ivanhoe pastoral lease to expand the area of the Agricultural Research Station and to provide for limited enlargement of the irrigated land on the Ivanhoe Plains.

13 In 1969 the State began to implement the second stage of the scheme, by constructing the main dam at a site approximately fifty kilometres up-stream from the diversion dam on the Argyle Downs pastoral lease and by making a small expansion of irrigated land on the Packsaddle and Ivanhoe Plains. Included in the modified second stage were steps to protect the catchment area of the main dam from silt and pollution and to commence re-generation of areas badly eroded by pastoral activities surrounding the main dam. The main dam was completed in 1971 and in the same year the State acquired the whole of the Argyle Downs pastoral lease (a lease of approximately 4,000 square kilometres), and a small area of freehold land on which the Argyle Downs homestead had been established. In 1972 the State resumed parts of the Lissadell and Texas Downs pastoral leases in the catchment area. The reservoir behind the main dam, Lake Argyle, covers an area of 700 square kilometres and at times of maximum flood may spread over 2,000 square kilometres.

14 The area of land now under irrigation is approximately 14,500 hectares. The hydro-electric power station was constructed on the main dam in 1996 and power is reticulated across the claim area to Kununurra and Wyndham and to the Argyle Diamond Mine south of Lake Argyle.

15 The Ord Project was conceived as a major production area for cotton and rice but neither crop succeeded. Production of rice ceased in 1966 and cotton in 1974. Growers turned to seed crops, nuts, sugar and horticultural ventures such as melons and other fruits, and vegetables with success. In recent years trial crops of cotton have been reintroduced. The creation of Lake Argyle and the development of the Argyle Diamond Mine has increased public awareness of the East Kimberley region, its striking landscapes and connection with Aboriginal pre-history. Tourism is now an important part of the region's economy. It was estimated in 1991 that the contribution of tourism was approximately $30 million per annum, a sum equivalent to the value of the agricultural products produced under the Ord Project.

16 The claim area in the State included:

* Crown land in and around the township of Kununurra, the Ord River irrigation area and Lake Argyle, and several freehold lots;

* Crown land in the Glen Hill pastoral lease south-west of Lake Argyle;

* Crown land and waters in the inter-tidal zones and mud flats on the eastern side of the Gulf and on the north coast of the State between the Gulf and the State/Territory border;

* Crown land in three small islands "Booroongoong" (Lacrosse), "Kanggurryu" (Rocky) and "Ngarrmorr" (Pelican) near the mouth of the Gulf; and

* Crown land in an area loosely described as "Goose Hill" east of Wyndham and south of the Ord River.

17 The claim area in the State also included land in which freehold interests were granted prior to 31 December 1993, namely:

* a small area near Lake Argyle in which a telephone exchange is operated by Telstra Corporation Limited (Telstra); and

* the area of the former Argyle Downs homestead.

18 Other freehold land included in the claim area is land that was alienated by the Crown after 31 December 1993. At trial the applicants contended that this land was not alienated in compliance with the "future act" provisions of the NTA and, therefore, native title had not been affected.

19 Crown land in the claim area in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area is vacant and reserved Crown land formerly used for pastoral leases. Much of that land, now covered by Lake Argyle, and the land which surrounds it were formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases. The balance consists of small areas of land in and around the Kununurra township, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. An area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land for the most part is vested in the Shire of Wyndham East-Kimberley (the Shire), or in statutory authorities, for purposes which include conservation, recreation, parkland, agricultural research, gravel, quarry, drainage, preservation of Aboriginal paintings, the use and benefit of "Aborigines" and purposes connected with the Ord Project. Some of the reserved Crown land has been leased to Aboriginal corporations, some to community organisations, and some for grazing purposes. Some parts of the Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA). A small part of the area on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine joint venture is included in the claim area.

20 The land in the inter-tidal zones and mud flats on the north coast of the State is land between the low and high water marks and a forty metre strip of land between the high water mark and the boundary of the Carlton Hill pastoral lease. There is a dispute as to the extent to which this land, and parts of the inter-tidal zone on the east of the Gulf were included in early pastoral leases. The mud flats and inter-tidal zone on the east side of the Gulf are Crown lands reserved for conservation purposes. The Goose Hill area is reserved Crown land part of which is used for grazing purposes under a special purpose lease to the appellant Crosswalk Pty Limited (Crosswalk). Booroongoong and Kanggurryu islands are vacant Crown lands. Ngarrmorr island is Crown land reserved for the purpose of a nature reserve.

21 The portion of the claim area in the Territory comprises the Keep River National Park, declared a park in 1981 under the Territory Parks and Wildlife Conservation Act 1976 (NT). This land was excised from the Newry pastoral leases in 1979 and leased to the Conservation Land Corporation (the Corporation) for the purpose of "carrying out the functions of the Conservation Commission" (the Commission). Under the Parks and Wildlife Commission Act 1980 (NT) the Commission (now known as the Parks and Wildlife Commission) has the care, control and management of all land "acquired" by the Corporation. Also within the Territory area is land adjacent to the park excised from the Newry pastoral leases in 1987 and leased to the Corporation for the purpose of "carrying out the functions of the Conservation Commission". The balance of the claim area in the Territory is freehold land, contiguous with, or within, the Keep River National Park. There are three areas granted as freehold land to Aboriginal corporations under the Land Acquisition Act 1979 (NT), Part IV of the Crown Lands Act (NT) and the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT). The freehold grants were made in 1989, 1990 and 1993.

Parties at trial

22 The initiating application was presented to the National Native Title Tribunal (the Tribunal) by "Miriuwunga Gajerronga Ningguwung Yawurrung Inc. (Miriuwung and Gajerrong Families and Heritage Land Council)". The native title rights and interests claimed were described as follows:

"Possession, occupation, use and enjoyment of the area. Special and exclusive relationship with and connection to the area in accordance with traditional customs, laws, practices and usages such that the area comprised Miriuwung/Gajerrong's traditional homeland."

23 After the application had been accepted by the Tribunal, the description of the claim area was amended, and the name of the applicant was changed by substituting for the corporate applicant the natural persons, now named as the first respondents in the principal appeals, who brought the claim on behalf of the Miriuwung and Gajerrong people. For ease of understanding we shall refer to them simply as "the applicants".

24 Following publication of the notice of claim, the Tribunal received notices from 127 persons with interests in the claim area who said they would be likely to be affected by a determination of native title. Pursuant to s 68 of the NTA those people became parties to the application. Proceedings by the State and the Territory challenging the decision of the Registrar of the Tribunal to accept the application were unsuccessful: (see Northern Territory v Lane (1995) 138 ALR 544).

25 After the application was referred to the Federal Court by the Registrar of the Tribunal pursuant to s 74 of the NTA, directions were given to group as respondents the various parties who had notified interests in the claim area according to common interests. The State became first respondent, representing State departments, Ministers and statutory authorities. The State opposed the application in respect of the whole of the claim area in the State.

26 The Territory became the second respondent. The Territory opposed the application in respect of the Territory area with the exception of the three freehold areas granted to Aboriginal corporations.

27 The third respondent was the Corporation as lessee of the land contained in the Keep River National Park and of the adjacent land in the Territory.

28 Cecil Ningarmara and other Aboriginal people who claimed an interest in the Territory area separate from that of the Miriuwung and Gajerrong people became the fourth respondents. In the course of directions hearings leave was given for this group to be removed as respondents and joined as the second applicants claiming a determination of native title in their favour in respect of the land claimed within the Territory as members of subgroups of the Miriuwung and Gajerrong people, namely as members of the Bindjen, Nyawamnyawam and Damberal estate groups. We shall refer to this group as "the Territory applicants".

29 The fifth respondents were the Kimberley Land Council and the Kununurra Waringarri Aboriginal Corporation. The Kimberley Land Council is a representative body under the Act. It sought to represent Aboriginal people other than those claiming on behalf of the Miriuwung and Gajerrong people who alleged interests in the claim area. During the trial leave was given to some of this group, described as the Balangarra Peoples, to become the third applicants. This occurred after they had lodged with the Tribunal an application for determination of native title for an area of land and waters which included Booroongoong island. We shall refer to this group as the "Balangarra Peoples".

30 The sixth respondents comprised persons and corporations who conducted business on or had interests in land in the claim area. This group included horticultural and agricultural businesses which take water from the Ord River irrigation scheme. The claim area did not include the freehold land on which horticultural and agricultural activities occurred, but included strips of Crown land adjoining the Ord River over which freeholders pumped water. This group also included tourist oriented businesses which used facilities on reserved or vacant Crown land within the claim area around Lake Kununurra and Lake Argyle. These activities were carried on under leases of reserved land, a permit to operate float aircraft on Lake Kununurra and install and maintain float landings and moorings, a jetty licence under the Jetties Act 1926 (WA), a permit to construct and use landing steps on the shore of Lake Kununurra, a licence to use a tour boat on the Lake, fishing boat licences, tour boat licences, a fish farm or aquaculture licence for breeding and harvesting fish in Lake Argyle, and a licence permitting the collection and commercial use of seeds of native flora on Crown land. The groups also included persons who acquired after 31 December 1993 freehold interests in residential lots in Kununurra. Telstra was included within the group but was separately represented at trial. Telstra operated telephone facilities involving an exchange, repeater station and underground cables and solar power sites on reserved or vacant Crown land, and in one case freehold land in the claim area.

31 The seventh respondents were Crosswalk and Baines River Cattle Co Pty Ltd (Baines River). Crosswalk is a lessee under a lease granted to it under the Land Act 1933 (WA). Baines River is a lessee under a lease from the Minister of Works to graze cattle in the State in an area east of Lake Argyle on reserved land vested in the Waters and Rivers Commission.

32 The eighth respondents were parties engaged in mining in or near the claim area, including Argyle Diamond Mines Pty Ltd and other joint venturers together referred to as "Argyle".

33 The ninth respondents comprised other parties who held mining tenements under the Mining Act 1978 (WA), including exploration licences and rights to quarry gravel or metal on Crown land within the claim area.

34 The tenth respondents were incorporated associations occupying reserved Crown land within the claim area under leases granted by the Shire, the reserved land being vested in the Shire under the Land Act 1933 (WA). Included among them were a sport fishing club, a water ski club and a sailing club representing recreational users of Lake Kununurra.

35 The eleventh respondent was the Shire.

36 The twelfth respondent was the company which produced hyrdo-electric power at the main dam, but this respondent took no part in the proceedings.

37 The thirteenth respondent, Innes Holdings Pty Ltd, carried on the business of irrigated agriculture on land which included freehold land in the claim area granted by the Crown after 31 December 1993.

38 The Attorney-General for the Commonwealth, later replaced by the Minister for Aboriginal and Torres Strait Islander Affairs, was given leave to intervene in the proceedings, but made no submissions at trial pursuant to that leave.

39 Preparation of the matter for trial was controlled by detailed directions. The trial commenced on 17 February 1997, much written and documentary material having been filed in advance of that date. The hearing extended in stages over many months, there being in all eighty-three hearing days. Evidence was taken at various sites in, or proximate to, the claim area. Judgment was delivered on 24 November 1998.

Judgment at first instance

40 The trial judge held:

* that the claim area, and surrounding lands, were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty - 1829 in respect of the colony of Western Australia, and 1825 in respect of the Territory (that being the date when the Territory was included within the boundaries of the colony of New South Wales). The Aboriginal people who occupied the claim area at sovereignty functioned under elaborate traditions, procedures, laws and customs which connected them to the land. It followed that the Aboriginal communities which occupied the claim area at sovereignty possessed native title in respect of that land;

* that the Miriuwung and Gajerrong community had maintained a connection with the ancestral communities which held the native title at sovereignty, and had maintained connection with the land to which native title applied, save for a small area to the west of Goose Hill near Wyndham known as Parry Lagoon. This small area was omitted when defining the "determination area". Lee J held that the Miriuwung community and the Gajerrong community were once occupants of adjacent territories which overlapped in part. They shared economic and ceremonial links, knowledge of Dreaming myths, Dreaming tracks and Dreaming sites such that the Miriuwung and Gajerrong had now become regarded as a composite community with shared interests;

* the claim of the Territory applicants could not be separated from the claim on behalf of the Miriuwung and Gajerrong people of which the Territory applicants were part;

* in respect of Booroongoong, the Balangarra Peoples which had ancestral connections with Aboriginal people from the western side of the Gulf had separate and distinct traditions and connections in respect of Booroongoong from those observed and followed by the Gajerrong people, such that any determination of native title should take account of the interests of the Balangarra Peoples in Booroongoong;

* save that in respect of freehold grants within the State, and in respect of certain reserved Crown lands that had been used in fact for roads or the erection of buildings or other fixtures and improvements for the purpose for which the Crown lands had been reserved, and their surrounding curtilages, more particularly identified in the Second Schedule to the judgment (at ALR 642), native title had not been extinguished in the determination area; and

* other interests had been created in the determination area by the Crown, the nature and extent of which are more particularly identified in the Third Schedule to the judgment (at ALR 644). Those other interests included interests held by one or more of the many parties to the proceedings as persons entitled to use reserves, or as lessees, licensees, permit holders, tenement holders, or holders of other interests obtained under or by reason of legislation of the State, Territory or Commonwealth.

41 The order entered pursuant to the judgment determined that native title in the determination area was held by the Miriuwung and Gajerrong people, and in respect of Booroongoong also by the Balangarra Peoples. Paragraphs 3 and 5 of the order read:

(3) Subject to para (5) hereof, the nature and extent of the "native title rights and interests" in relation to the "determination area" are the rights and interests of the common law holders of native title derived from, and exercisable by reason of, the existence of native title, in particular:

(a) a right to possess, occupy, use and enjoy the determination area;

(b) a right to make decisions about the use and enjoyment of the determination area;

(c) a right of access to the determination area;

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

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

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

(g) a right to trade in resources of the determination area;

(h) a right to receive a portion of any resources taken by others from the determination area;

(i) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area; and

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

... ...

(5) The relationship between the "native title rights and interests" described in para (3) and the "other interests" described in [the Third Schedule] is as follows:

The "native title rights and interests" described in para (3) hereof and the "other interests" described in [the Third Schedule] hereof are concurrent rights and interests in relation to that part of the "determination area" to which the "other interests" relate, but by operation of legislation or by reason of the nature and extent of the "other interests" created by the Crown, the exercise of some of those concurrent rights, including "native title rights and interests", may be regulated, controlled, curtailed, restricted, suspended or postponed.

(Note that paragraph 5 above is from the sealed order, the terms of which are slightly different from those reported at ALR 645.)

42 By a further judgment delivered on 6 May 1999 (Ward and Others v State of Western Australia and Others [1999] FCA 580; (1999) 163 ALR 149) Lee J ordered that the State and the Territory pay, on the basis of apportionment, the costs of the applicants. The State and the Territory had resisted orders for costs on the basis of s 85A which was inserted into the NTA by the new Act, at which time the trial, but for one day, was completed. Section 85A(1) provided that:

"Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs."

43 His Honour ordered that the State and the Territory pay ninety per cent of the costs of the applicants, three-quarters to be paid by the State and one-quarter by the Territory. An application for costs against the State and the Territory by the Territory applicants was dismissed on the basis that they did not obtain the determination sought by them, and to the extent that they were persons to whom the orders obtained on behalf of the applicants applied, their success in the litigation was derived from the success of the applicants.

The Appeals

44 The following appeals have been instituted against the determination and orders of Lee J.

45 In matter No WG 6293 of 1998 the State is the appellant. Three respondent groups are named. The first group is Ben Ward and others, the applicants at trial. The second group are the Territory applicants. The third group are the Balangarra Peoples.

46 The State appeals against the whole of the orders, declaration, and determination of Lee J save for the findings that extinguishment of native title had occurred in respect of the areas set out in the Second Schedule, and the findings as to the other interests held in the determination area set out in the Third Schedule. There are some ninety-six grounds of appeal which assert numerous errors of law and fact. The State seeks orders setting aside the determination and dismissing the application. The State also appeals against the order for costs made against it.

47 In this matter, a notice of cross-appeal has been filed by the Kimberley Land Council on behalf of those of the applicants who identify as members of the Malngin and Gija estate groups complaining that the determination of native title should have included a determination in favour of the Malngin and Gija communities as holders of common law native title in respect of the southern part of the claim area.

48 In matter No WG 6292 of 1998 Crosswalk and Baines River appeal against the determination insofar as it affects lands occupied by them, namely King Locations 736 and 744 (the Special Lease), and King Location 374 (the New Argyle Downs Lease). The notice of appeal challenges the findings that native title had been established in respect of these locations, that it had not been extinguished by Crown grants relating to the locations, and that the native title rights found to exist were not subordinate to the rights of Crosswalk and Baines River. Only the applicants and the Territory applicants are parties to this appeal.

49 In matter No WG 6294 of 1998 the numerous persons and corporations who comprised the sixth, ninth, tenth and thirteenth respondents at trial appeal against the determination of native title insofar as it affects each of them. Since the appeal was instituted, the Ord River Sailing Club (one of the tenth respondents at trial) and Innes Holdings Pty Ltd (the thirteenth respondent) have discontinued their appeals, although the area of their interests is still the subject of the State's appeal. We shall refer to these as "the Alligator appellants" (Alligator Airways Pty Ltd being the first of the named appellants). The Alligator appellants seek orders that the determination of native title insofar as it affects the lands or waters used by them be set aside, or alternatively that the relevant areas be added to the Second Schedule as lands or waters over which native title has been extinguished. Only the applicants and the Territory applicants are parties to this appeal. The separate interests of twenty persons and corporations within this group are identified in submissions as requiring separate consideration.

50 In matter No WG 6295 of 1998 Argyle appeals against the whole of the determination insofar as it affects the areas the subject of the Argyle mining leases and tenements. In addition to naming as respondents the applicants, the Territory applicants and the Balangarra Peoples, the State is named as a fourth respondent to this appeal. Foremost amongst Argyle's grounds of appeal, it is contended that any native title that may have existed in respect of the Argyle areas has been extinguished by the Crown grant of the interests presently held by Argyle.

51 In matter No WG 6296 of 1998 the Territory, through its Attorney-General, appeals against the determination of native title in respect of that part of the claim area which is within the Territory. The Territory contends that native title in that area had been extinguished by the grant of pastoral leases over the area, or alternatively by a special purpose lease and by a perpetual Crown lease both granted by the Territory to the Corporation and by the three grants of freehold to Aboriginal corporations. In the alternative, if native title continues to exist, the Territory contends that it should have been determined that the common law native title holders are the Bindjen, Nyawamnyawam and Damberal estate groups, not the wider community of the Miriuwung and Gajerrong people of whom the three estate groups form part. The Territory also appeals against the costs order made against it.

52 In each of these five appeals a notice of contention has been filed by the Territory applicants. These notices of contention seek to uphold the determination that native title exists in favour of the Territory applicants in respect of that part of the claim area within the Territory on the basis that native title is held by the Bindjen, Nyawamnyawam and Damberal estate groups. In the case of the Territory's appeal it is further contended that the finding that native title has not been extinguished can be upheld on grounds additional to those given by Lee J.

53 In matter No W 6020 of 1999 the Territory applicants appeal by leave against the order made on 6 May 1999 insofar as it refused them an order for costs of the trial. The respondents to that appeal are the State and the Territory.

54 The major issues raised by these notices of appeal are dealt with under the headings set out below. At trial more than nine thousand pages of transcript were recorded, and the exhibits run into many thousands of pages. Written submissions on the appeal also run into thousands of pages. Whilst the notices of appeal raise many major issues which are dealt with below, the notices of appeal, and more particularly the arguments presented in support of them, also challenged many findings of fact, some of them of a relatively unimportant nature. In complex appeals involving enormous quantities of material it is impracticable, in reasons for judgment, to explore at length every one of the complaints made by each appellant. We propose therefore to follow the approach adopted by other Full Courts of this Court in Australian Breeders Co-operative Society Limited v Jones & Ors [1997] FCA 1405; (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson [1998] FCA 823; (1998) 81 FCR 149 at 175 and to confine our reasons to the issues raised that are both significant and consequential.

Common Law Native Title

55 Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 established that on the acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to that part. Where native title rights and interests in or in relation to that land existed at the time, the common law in Australia recognises those rights and interests as a burden on that radical title. The term "native title" is used to conveniently describe the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants: at 57 per Brennan J. In expressing their agreement with the reasons of Brennan J, Mason CJ and McHugh J, at 15, said that six members of the Court were in agreement:

"...that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs to their traditional lands..."

56 The principles declared by Mabo [No 2] have been applied in subsequent decisions by the High Court: see Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (the Native Title Act Case) at 452, 492; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 (the Waanyi Case) at 613; The Wik Peoples v State of Queensland (1996) 187 CLR 1 (Wik) at 84-85, 100, 129, 135, 175-176 and 213; Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 126-128 and 154 and Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 at 268-269, 277-278 and 298. These decisions have been recently discussed in a Full Court of this Court in Commonwealth of Australia v Yarmirr & Others (1999) 168 ALR at 426 at 434 (the Croker Island Case).

57 The concepts of native title recognised by the common law do not constitute a title which is an institution of the common law. In Fejo Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 128:

"Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law."

58 It follows that the existence and content of native title is a question of fact to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis: Mabo [No 2] at 58 and 61, the Native Title Act Case at 452 and Wik at 169. As we observed in the Croker Island Case, at 435, native title is therefore "highly fact specific".

59 In Wik, Gummow J, citing Mabo [No 2], said (at 169):

"The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence." (Footnotes omitted)

60 In Mabo [No 2] Brennan J made a number of general observations about the nature and incidents of native title. First, as native title is not an institution of the common law, it is not alienable by the common law. However, his Honour observed at 59-60 that many clans or groups of indigenous people have been physically separated from their traditional lands and have lost their connection with it, but:

"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition."

61 Secondly, native title, being recognised by the common law may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. Recognition however is dependent on the native title arising under the laws and customs of the indigenous inhabitants not being so repugnant to natural justice, equity and good conscience that judicial sanctions must be withheld (at 59), and so long as recognition would not "fracture a skeletal principle of our legal system" (at 43).

62 Thirdly, where an indigenous people (including a clan or group) as a community, are in possession or are entitled to possession of land under a proprietary native title, that communal title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community's lands: at 62.

63 Where native title survived the Crown's acquisition of sovereignty and radical title, the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Brennan J at 69 said:

"Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals)."

Deane and Gaudron JJ referred to extinguishment at 110:

"The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession."

64 In the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case their Honours said at 452-453 that:

"The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title."

65 In Fejo, Kirby J at 151 referred to "the inherently fragile native title right, susceptible to extinguishment or defeasance...".

66 The High Court in Fejo at 126 confirmed that native title is extinguished by a grant in fee simple 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 rights or interests in land which together make up native title. The Court held that once native title had been extinguished, it was necessarily at an end, and could not revive if the land came to be held again by the Crown. In their joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, at 128:

"As Brennan J pointed out in Mabo [No 2] the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title."

67 Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the acts of the executive in exercise of powers conferred upon it: Mabo [No 2] at 63-64 per Brennan J, 110-111 per Deane and Gaudron JJ, and 195-196 per Toohey J. In Wik Brennan CJ observed at 84-85, that such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

68 A law or executive act of the first kind will not have the effect of extinguishing native title "unless there be a clear and plain intention to do so": Mabo [No 2] at 64, 111 and 196, and Wik at 85. Such an intention is not to be collected by inquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and the power supporting it. The test of intention to extinguish is an objective test.

69 In the second situation a law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. (See also Mabo [No 2] at 68 and the Native Title Act Case at 422). The exercise of power must, however, be in terms that "clearly, plainly and distinctly" create rights that are inconsistent with the continued exercise of native title rights and interests (see Wik at 171 and Yanner at 289 per Gummow J). Where the exercise of power is made under statutory authority, the statute must authorise the creation of rights which have this effect (see Mabo [No 2] at 63).

70 In the third situation, the Crown acquires a full beneficial ownership that extinguishes native title by acquisition of native title. This may occur by acquisition, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Alternatively, the Crown, without statutory authority may acquire beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. The appropriation will give rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title, for example by building a school, or a court house, or laying a pipeline. Brennan CJ noted that the mere reservation of land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land, but the Crown's exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in the land used: Wik at 85-86.

71 In the Croker Island Case we observed at 438-439, that in Wik all seven members of the High Court propounded similar tests to determine whether a statutory grant by the Crown was inconsistent with the continued enjoyment of native title: Brennan CJ, with whom Dawson and McHugh JJ agreed at 86-87, Toohey J at 126 and 132-133, Gaudron J at 135, Gummow J at 185 and Kirby J at 221 and 238. The test was described by Kirby J at 221 as "the inconsistency of incidents" test, and we shall adopt that description. The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised (see Brennan CJ at 87, and Kirby J at 238).

72 The inconsistency of incidents test approved by the members of the High Court in Wik was applied in Fejo at 126-127 and 154-155.

73 Where a law or executive act creates rights in a third party which are inconsistent with the continued enjoyment of native title rights, the inconsistency, and extinguishment, will occur at the time of the grant. The grant may however confer or impose on the grantee a power or condition to be exercised or performed in the future and which, until exercised or performed, has no immediate legal effect in terms of inconsistency: see Wik at 166 per Gaudron J. In Wik, Gummow J at 203 instanced conditions in pastoral leases requiring improvements to the land under which the construction of an airstrip and dams in compliance with the conditions could, at the time of the performance of the conditions, bring about an abrogation of native title. See also Yanner at 289. Inconsistency arising in this situation may conveniently be described as operational inconsistency.

74 The NTA is Parliament's response to the decision in Mabo [No 2]. The main objects of the NTA are set out in s 3:

"Main objects

The main objects of this Act are:

(a) to provide for the recognition and protection of native title; and

(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c) to establish a mechanism for determining claims to native title; and

(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title."

75 Whereas Mabo [No 2] held that the common law recognised native title rights and interests in land, s 6 of the NTA provides that the NTA extends to the coastal sea of Australia and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth).

76 "Native Title" is one of the key concepts in the NTA, and is defined in s 223 as follows:

"(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests."

77 The interpretation of this definition and the application of the principles discussed in Mabo [No 2] to the coastal sea, are considered in the Croker Island Case. As we there noted at 441-442, the notion of extinguishment of native title by law or executive act is not referred to in s 223 of the NTA. However, it is clear that if native title were so extinguished before the Racial Discrimination Act 1975 (Cth) it cannot be revived, nor can it be recognised and protected under the NTA. See the Native Title Act Case at 452-454 and Yanner at 269. The principles concerning extinguishment that are central to the present case do not turn on provisions in the NTA, as the Crown grants, reservations and uses which the appellants say caused extinguishment occurred (with very few exceptions) before 1976. It is only those communal, group or individual rights and interests of Aboriginal peoples presently possessed under the traditional laws acknowledged, and the traditional customs observed by them that can be the subject of a determination of native title on the application made under s 13(1) of the NTA.

78 The trial judge in the present case formulated principles by which to determine whether extinguishment has occurred in terms which we consider depart from the inconsistency of incidents test approved by the High Court in Wik and Fejo. His Honour said (at ALR 508):

"Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by `adverse dominion': see United States v Santa Fe Pacific Railroad Co at [1942] USSC 12; 314 US 339 (1941) at 347.

In Delgamuukw v British Columbia (1993) 104 DLR(4^th) 470 per Lambert JA at 670-2 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof...".

79 The trial judge does not expressly say that he adopts an adverse dominion test which involves the three conditions stated by Lambert JA in Delgamuukw, but it is apparent from his consideration of pastoral leases, and other grants to third parties later in his judgment, that he has done so.

80 We consider that this test of adverse dominion departs from the principles laid down by the High Court in the following respects. The first condition stated by Lambert JA propounds a test that there be a clear and plain intention by parliament to extinguish native title by the creation of third party rights. That requirement does not give due weight to the inconsistency of incidents test, the importance of which underlies the following statement in the joint judgment in Fejo at 128:

"As Brennan J pointed out in Mabo [No 2], the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title."

81 The inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests. It is to be noted that Lambert JA in Delgamuukw at 671 said that he did not think that there was any basis in principle for saying that inconsistency between the grant and native title necessarily means that it is the native title that must give way. This view is not consistent with the inconsistency of incidents test adopted in Australia.

82 The second condition stated by Lambert JA, namely that the grant "demonstrates the exercise of permanent adverse dominion..." introduces a notion of permanency which has not been required by the High Court. In Mabo [No 2], Brennan J at 68-69 and Deane and Gaudron JJ at 110 recognised that a lease granting exclusive possession will extinguish native title. A lease is only for a term of years, and is not permanent. The notion that native title can revive at the conclusion of the term of the lease is, in our view, inconsistent with the joint judgment in Fejo at 131.

83 The notion that a grant of statutory rights inconsistent with the continuance of native title rights must be permanent to bring about extinguishment is also inconsistent with the observations of Brennan J in Mabo [No 2] at 68 that:

"... if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a court house or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished."

84 The use of land for a school, a court house or a public office may not be permanent, but more importantly, his Honour's examples indicate that extinguishment occurs as a result of the inconsistent use independent of the likely duration of that use.

85 If the grant of statutory rights is a grant only for a short finite period, the grant may not be inconsistent with the continuance of native title rights. Whether extinguishment occurs will depend on all the circumstances and is likely to involve matters of degree. However, as a general proposition, we consider that an inconsistent grant of statutory rights, other than for a finite short time, will extinguish native title rights to the extent of the inconsistency. Even in the case of inconsistent grants stated to be of short duration, e.g. a lease for a short term, if at the time of the grant there were a likelihood that the grant would be renewed at the end of the term, so as to make the duration of the lease in fact indefinite, extinguishment to the extent of the inconsistency would occur.

86 The third condition stated by Lambert JA requires "actual use" by the holder of the tenure which is permanently inconsistent with the continued existence of native title. The requirement of actual use is again contrary to the inconsistency of incidents test approved in Wik and Fejo. Under that test, conflict in actual use is only a material consideration where the grant itself does not extinguish native title, but the later exercise or performance of a power or condition contained in the grant does so. We have earlier referred to this as operational inconsistency.

87 In Wik and Fejo it was not necessary for the High Court to consider whether there could be "partial extinguishment" of native title: that is, whether if the grant, the exercise of a right or privilege contained in the grant or the Crown use of land, were not wholly inconsistent with the rights of the holders of native title, but were inconsistent with the enjoyment of some only of those rights, the inconsistent rights are extinguished to the extent of the inconsistency. Whether partial extinguishment of this kind is a possible legal consequence of a statutory grant is a major issue of contention between the parties in this case.

Partial Extinguishment

88 The question of "partial extinguishment" of native title rights has not been authoritatively determined by the High Court, nor has it been determined by a decision of a Full Court of this Court. The respondent's contention in Yanner was that s 7(1) of the Fauna Conservation Act 1974 (Qld) had extinguished the appellant's native title right to hunt young estuarine crocodiles and to that extent had partially extinguished native title rights traditionally enjoyed by the community of which he was a member. In their joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ said it was unnecessary for the decision of the case to examine that submission, and the issue was left open. We will return to judgments of the other members of the Court in Yanner later in these reasons.

89 In Mabo [No 2] Brennan J at 57 used the term "native title" as a convenient description of the rights and interests of indigenous inhabitants of land. However, native title is not an institution of the common law: Mabo [No 2] at 59 and 61, and Fejo at 130. In Yanner at 299 Callinan J observed that the language of the Justices of the High Court when reference is made to native title has tended to be couched, as perhaps it only can be, in terms of "incidents", "nature", "rights", traditions", "customs" and "entitlements". (His Honour gave references to occasions when those terms have been used). In the Waanyi Case at 616 it was said in the joint judgment in relation to the right to negotiate conferred by subdiv B of Div 3 of the Act that "[i]t is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application". And in Fejo in the joint judgment at 126 it is said that a grant of fee simple is inconsistent with native title holders continuing to hold any of "the rights or interests which together make up native title".

90 The notion that the rights and interests of indigenous people, conveniently described as native title, constitute a bundle of rights appears to fit comfortably with the principle stated in Mabo [No 2] by Brennan J at 69, that where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title "native title is extinguished to the extent of the inconsistency". The postscript to the judgment of Toohey J in Wik at 132 also accords with this description, where his Honour said with the concurrence of Gaudron, Gummow and Kirby JJ that:

"If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield to that extent, to the rights of the grantees."

91 These statements of principle would suggest that if particular rights and interests of indigenous people in or in relation to land are inconsistent with rights conferred under a statutory grant, the inconsistent rights and interests are extinguished, and the bundle of rights which is conveniently described as "native title" is reduced accordingly.

92 However, the trial judge rejected an argument to that effect urged by the appellants. His Honour held (at ALR 508) that:

"Native title at common law is a communal `right to land' arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere `bundle of rights': see Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 per Lamer CJ at 240-1. The right of occupation that is native title is an interest in land: see Mabo (No 2) per Brennan J at CLR 51. There is no concept at common law of `partial extinguishment' of native title by the several `extinguishment' of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, `native title rights' have been `extinguished'.

Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished."

and later his Honour added (at ALR 510):

"Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed."

93 The expression "fundamental inconsistency" is not one used in the test of inconsistency propounded in the judgments in Wik. Nor in any of the judgments of the High Court does the notion of parasitic or dependent rights flowing from native title find expression. That is a notion which his Honour appears to have derived from Canadian authorities. However, as Gummow J pointed out in Wik at 182, in Canada the basic legal framework developed quite differently. In Fejo the joint judgment at 130 expressed doubt that much direct assistance is to be had from decisions in other common law jurisdictions, and Kirby J at 148-149 said that care must be exercised in the use of authorities from other former colonies and territories, noting that the position in Canada (and New Zealand) had followed a different course. Canadian jurisprudence owes much to s 35(1) of the Constitution Act 1982 (Can).

94 The trial judge construed the statement of Brennan J in Mabo [No 2] that an inconsistent grant would extinguish native title "to the extent of the inconsistency" as referring to the extinguishment of native title to the extent that there is an area of land in respect of which inconsistent rights may have been granted by the Crown with the intent of extinguishing native title. In this sense there could be partial extinguishment, that part of the area formerly the subject of native title would no longer be subject to any native title rights. This would amount to a partial extinguishment in geographical dimensions, and not a partial reduction in the number of the rights and interests otherwise enjoyed by the Aboriginal community. That conclusion appears to be drawn from observations in Wik by Gaudron J at 166 and Gummow J at 203 relating to inconsistency arising from the performance of conditions in pastoral leases. The passage from the judgment of Gummow J, which his Honour cited, reads:

"It may be that the enjoyment of some or all native title rights with respect to particular portions of the...(pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their impositions by the grant, would have brought about the relevant abrogation of native title."

95 The observations of Gaudron and Gummow JJ refer to what we have earlier described as an operational inconsistency. The appellants' argument that there can be a partial extinguishment of rights by the several extinguishment of one or more components of a bundle of rights is an argument distinct from the possibility that operational inconsistency may wholly extinguish native title in respect of a particular area of land.

96 As the common law does not recognise "native title" as an institution of the common law it is, in our opinion, a mistake to treat native title as a legal construct which is separate from the rights and interests of indigenous people. Whilst references may be found in judgments of members of the High Court to the "incidents" of native title (e.g. Mabo [No 2] at 58 per Brennan J, Wik at 185 per Gummow J, Yanner at 274 and 278 per Gummow J and at 293 per Callinan J) care is needed in the use of this expression. Under the tenure system of the common law, legal and equitable estates in land are institutions of the common law. Rights attaching to those estates as a matter of law, are described as incidents of the estates or of the title. Rights attaching to common law tenures of that kind are truly pendant or parasitic on the title. That however is not the case in respect of "native title", and the quality of the rights and interests conveniently described as native title cannot be elevated to something akin to a common law tenure by describing them as "incidents".

97 To describe native title as a bundle of rights is not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land, a possibility recognised by Brennan J in Mabo [No 2] at 51 and Gummow J in Wik at 169. Moreover, it is not inaccurate to describe proprietary interests as a "bundle of rights": Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 285 per Rich J and Yanner at 264.

98 As earlier observed, in Yanner, the question whether there could be an extinguishment of some only of the rights and interests constituting native title, in consequence of inconsistency arising from a legislative prohibition on the exercise of a particular right, was left open by Gleeson CJ, Gaudron, Kirby and Hayne JJ. The respondent's argument was however addressed by Gummow and Callinan JJ. Callinan J would have dismissed the appeal on the ground that the native title right relied on by the appellant had been extinguished by the legislation. At 288-289 Gummow J considered the issue of extinguishment and at para 112 posed the narrow question for decision as "whether the creation of certain statutory rights, conditioned upon the exercise of power conferred by the statute, abrogated the exercise of the native title right or incident to hunt". His Honour concluded that the statute, properly construed, did not have that effect. However, his discussion of the extinguishment issue supports the notion of a partial extinguishment. The remaining member of the Court, McHugh J, held that s 7(1) of the Fauna Conservation Act had vested in the Crown the right to deal with fauna (which included estuarine crocodiles), and took away from everyone else all existing rights to take fauna (at 271). The practical effect of that conclusion was to deny any present right to the appellant (or his community) to take estuarine crocodiles, but it does not necessarily follow that such a right was permanently extinguished, as opposed to being merely suspended. In Yanner, therefore, four members of the Court expressly left open the question of partial extinguishment, one member of the Court did not deal with the question, and the reasoning of two members of the Court supports the notion of partial extinguishment.

99 In the joint judgment in Yanner, four members of the High Court at 269-270 made the following observations in relation to the topic of alleged inconsistency arising from the statutory regulation or prohibition of rights or interests that may be exercised, and native title rights and interests:

"...in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, `Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights' but `[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.'

Native title rights and interests must be understood as what has been called `a perception of socially constituted fact' as well as `comprising various assortments of artificially defined jural right'. (K Gray and S F Gray, `The Idea of Property in Land', in Bright and Dewer (eds), Land Law: Themes and Perspectives, 1998, 15 at 27). And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, `You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing."

100 The authors of "The Idea of Property in Land" cited by their Honours describe three ways in which common law jurisprudence can conceive of property in land. The first two ways are discussed under the headings "Property as a Fact" and "Property as a Right". Under the first of these headings the authors say at 18-19:

"Much of the genius of the common law derives from a rough-and-ready grasp of the empirical realities of life. According to this perspective, the identification of property in land is an earthily pragmatic affair. There is a deeply anti-intellectual streak in the common law tradition which cares little for grand or abstract theories of ownership, preferring to fasten instead upon the raw organic facts of human behaviour. This perspective is preoccupied with what happens on the ground rather than with what emerges from the heaven of concepts. Accordingly, the crude empiricism of this outlook leaves the recognition of property to rest upon essentially intuitive perceptions of the degree to which a claimant successfully asserts de facto possessory control over land. On this view property in land is more about fact than about right; it derives ultimately not from `words upon parchment' but from the elemental primacy of sustained possession. Property in land is thus measurable with reference to essentially behavioural data; it expresses a visceral insight into the current balance of human power relationships in respect of land." (footnotes omitted)

101 The authors go on to say that concealed within this behavioural notion of property is, inevitably, some primal perception of the propriety of one's nexus with land which asserts that the land is "proper" to one; that one has some significant self-constituting, self-realising, self-identifying connection with the land. Yet, in terms of the empirical perspective which treats property in land as "a perception of socially constituted fact", it is the mode of behaviour consciously adopted by the claimant occupier that is the critical determinant.

102 The authors, whilst recognising that an aspect of the behavioural notion of property is a perception of belonging to the land, which in the context of native title would include spiritual, cultural and social connection with the land, it is the empirical facts, and the behavioural data that evidences that connection, which is recognised and protected by the common law.

103 In Fejo six members of the High Court in their joint judgment at 126 say that a grant of fee simple "simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land", and at 128: "[t]he rights of native title are rights and interests that relate to the use of the land by the holders of the native title".

104 In our opinion references to enjoyment of rights and interests in respect of the land, and to use of the land in these passages, confirm that the native title rights and interests that are recognised and protected by the common law are those which involve physical presence on the land, and activities on the land associated with traditional social and cultural practices. (See also Mabo [No 2] at 188 per Toohey J). Whilst the relationship of indigenous people with their traditional home land is "primarily a spiritual affair", or as Blackburn J described it in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167, a "religious relationship", the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land.

105 Under the heading "Property as a Right" the authors of "The Idea of Property in Land" say, at 27:

"A rather different - and not entirely consistent - focus is provided by the competing assessment of property in land as comprising various assortments of artificially defined jural right. On this view, the law of real property becomes distanced from the physical reality of land and enters a world of conceptual - indeed some would say virtually mathematical - abstraction. In sharp contrast to the crudely empirical foundations of property as a fact, the vision of property as a right rests upon a complex calculus of carefully calibrated `estates' and `interests' in land, all underpinned by the political theory implicit in the doctrine of tenure." (footnotes omitted)

106 It is clear from judgments in Mabo [No 2] and Fejo, to which we have already referred, that native title is not an institution of the common law, and not a common law tenure. We do not understand the reference in the joint judgment in Yanner to native title "comprising various assortments of artificially defined jural right" to be an endorsement of a notion that native title is an abstract form of title from which pendant rights are derived.

107 Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition by the common law gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are "artificially defined" under the common law because they arise from the acknowledgment and observance of traditional laws and customs under a different legal system. The common law accords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people.

108 That the common law does not provide for the protection or enforcement of purely religious or spiritual affiliation with land, divorced from actual physical use and enjoyment of the land, has the consequence that the continued recognition of traditional laws and observance of traditional customs may substantially maintain a connection between the indigenous people and the land even after native title rights and interests have under Australian law been totally extinguished, e.g. by a grant of freehold. This possibility is acknowledged in the joint judgment in Fejo at 128 in the following passage:

"The underlying existence of the traditional laws and customs is a necessary prerequisite for native title but their existence is not a sufficient basis for recognising native title. And yet the argument that a grant in fee simple does not extinguish, but merely suspends native title is an argument that seeks to convert the fact of continued connection with the land into a right to maintain that connection."

See also Fejo at 151 per Kirby J, and Yanner at 288 per Gummow J. We return to the topic of the maintenance of a substantial connection with land later in these reasons.

109 In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a "bundle of rights". It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens "partial extinguishment" occurs. In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. Further, it is possible that a succession of different grants may have a cumulative effect, such that native title rights and interests that survived one grant that brought about partial extinguishment, may later be extinguished by another grant.

110 In our opinion the trial judge erred in holding that there is no concept at common law of partial extinguishment of native title.

111 In summary, extinguishment of native title rights or interests may occur in a number of situations, and the extinguishment may be a complete denial of any further native title right or interest. Alternatively, it may constitute an extinguishment or denial of the future enjoyment of some only of the rights and interests. Extinguishment may occur: (1) by laws or acts which simply extinguish native title; (2) by laws or acts which create rights in third parties in respect of an area of land or water subject to native title which are inconsistent with the continued rights to enjoy native title; and (3) by laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. In the second of these situations, extinguishment may occur at the time of the grant because of the inconsistency of incidents of native title and the grant of statutory rights, or, less commonly, may arise subsequently because of operational inconsistency in a particular part of an area over which native title previously existed. In any of these cases the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the legislature or the executive.

112 It will be necessary later in these reasons to consider allegations by one or more of the appellants that total or partial extinguishment of native title in parts of the claim area has occurred in each of these ways.

Onus of Proof of Extinguishment

113 The parties in their submissions have addressed issues relating to onus of proof.

114 On an application under s 13 of the NTA for a determination of native title, the applicants must establish that as Aboriginal peoples or Torres Strait Islanders they are presently possessed of communal, group or individual rights and interests in relation to land or waters where those rights and interests fulfil the requirements of paragraphs 223(1)(a), (b) and (c). That will require the applicants to prove the existence of rights and interests held by them under traditional laws acknowledged and traditional customs observed in the relevant area, that they have the necessary descendant relationship with former holders of native title in that area, and that by those laws and customs, they have substantially maintained connection with the land. They must also establish the ambit or content of the native title rights and interests as defined by the traditional laws and customs of their community: cf Yanner at 288-289 per Gummow J. On those matters the applicants plainly carry both an evidential onus of proof, and the ultimate onus, or burden, of proof.

115 The central issue canvassed by the parties in their submissions is whether an onus of proof rests on the applicants to negative extinguishment where extinguishment by inconsistent law or statutory grant is alleged by a party to the application. It follows from the provisions of Part 3 of the NTA that the Commonwealth Minister and the relevant State or Territory Minister will be parties to an application in the Federal Court, and if extinguishment is to be an issue it is likely that it will be raised by a Minister, if not by another party. This is the practical reality that flows from the Crown in right of the Commonwealth, State, or Territory concerned being in the best position to know the pertinent facts.

116 In Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 the relief sought by the plaintiff included declarations to the effect that the Wiradjuri tribe are the owners of land constituting a large part of southern and central New South Wales. On an application by the defendants to strike out the proceedings, Mason CJ at 206 said that he did not consider the State of New South Wales carried the onus of proving extinguishment. The Chief Justice said:

"It seems to me that, if the plaintiff asserts native title to land, then the plaintiff must establish the conditions according to which native title subsists. Those conditions include (a) that the title has not been extinguished by inconsistent Crown grant and (b) that it has not been extinguished by the Aboriginal occupiers ceasing to have a requisite physical connection with the land in question. In Mabo (No 2), Brennan J said:

`Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.'"

117 The claim in that case was not made under the NTA, but in the Supreme Court of New South Wales seeking a declaration according to common law principles. Even in an application now brought under the NTA we think it is probably correct, in strictness, to say that the ultimate burden of proof rests on the applicants to establish that extinguishment has not occurred. This is so as the applicants must ultimately show that there currently exists native title rights and interests, and they will fail if the rights and interests asserted have at an earlier time been extinguished by law or Crown grant.

118 That legal burden of proof in the strict sense must however be distinguished from an evidential burden which may rest on the party who asserts extinguishment, and this distinction leads to another, namely the distinction between alleged extinguishment by a law on the one hand, and acts of State or executive action on the other which are said to effect extinguishment.

119 Where extinguishment is said to arise by force of legislation, the legislation itself is a matter of public record that needs no evidential proof. The application of the legislation to the facts of the case is a matter of law, no evidence is required to prove the law, and the legal effect of the legislation is not dependent upon evidence as to the state of mind of the legislators. It is well established by the cases (e.g. Mabo [No 2] at 64 per Brennan J, 110-111 per Deane and Gaudron JJ and at 195-196 per Toohey J) that the legislation must manifest clearly and plainly an intention to extinguish native title rights and interests before it will have that effect. That requirement is a rule of law relating to the interpretation of a statute, and not a rule of evidence relating to onus of proof. The following passages from the joint judgment in the Native Title Act Case at 422-423 are to be understood as referring to the rule of law relating to interpretation of a statute, not to questions of evidential proof:

"Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended...

...To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown's intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required. In In Re Southern Rhodesia Lord Sumner said the presumption of the survival of property rights upon conquest was applicable `in the absence of express confiscation or of subsequent expropriatory legislation'."

120 The effect of the rule of interpretation and the presumption that no extinguishment is intended is that doubtful expressions and doubtful provisions in legislation are to be resolved in favour of those who are asserting native title. Similar rules of law apply where extinguishment by executive act is asserted when construing the empowering legislation and the written instruments by which the executive act is effected. Where extinguishment is said to arise from an act of State, or executive act, evidence is required to prove the fact and content of the act of State or executive act. For example, where it is alleged that native title is extinguished by the grant of a lease, the fact of the grant and the terms of the lease must be established by evidence in the same way as any other fact that must be proved. In that situation, absent proof of the executive act, the Court would have no basis for finding extinguishment. Thus, in accordance with ordinary principle, the party asserting extinguishment carries an evidential onus of proving the nature and content of the executive act relied upon (although the discharge of that evidential onus may be assisted by the ordinary presumptions of regularity and continuance). However once proved, the effect of that act upon native title rights is a matter of law. For example, if it is proved that a lease has been granted over the subject land, it is then a question of law to interpret the meaning and effect of the terms of the lease.

Summary of findings at trial on native title issues

121 Before turning to the submissions made about the trial judge's findings of fact, it is convenient first to summarise the findings that were made by the trial judge, and the material which was relied upon to support them.

Findings on Aboriginal connection with the claim area at sovereignty

122 The finding that the claim area and surrounding lands were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty functioning under elaborate traditions, procedures, laws and customs which connects them to the land, was based on writings of anthropologists, on reports prepared for the purposes of the case by archaeologists and on reports of historians. Dr Fullagar gave evidence for the applicants that there was general agreement among archaeologists that Aboriginal people lived in the north-west of Australia for at least 40,000 years. He described the conclusions reached from scientific testing of archaeological material found at the Miriwun rock shelter at Lake Argyle. This showed that the site had been used by Aboriginal people for at least 18,000 years. Archaeological work at that site and in the region demonstrated a pattern of use and occupation of the land by Aboriginal people over thousands of years. The sites attested to regular, not random, use of the land by organised groups of people and suggested activities consistent with the occupation of a homeland. Dr Fullagar considered it beyond doubt that the claim area had been occupied by Aboriginal people for thousands of generations.

123 The reports of historians referred to records of maritime explorers and cartographers who observed Aboriginal people carrying on subsistence activities at Booroongoong (Lacrosse Island) and in the Gulf before 1820, and groups of Aboriginal people were observed by overland explorers who traversed the region after sovereignty and before European settlers. Dr N Green, an historian who gave evidence for the State, considered that it was beyond question that Aboriginal people occupied the claim area before sovereignty and when settlers first arrived in the mid-1880s.

124 The evidence provided clear support for the finding that Aboriginal communities occupied the claim area at sovereignty, and were possessed of native title in respect of that land at the time. This finding is not the subject of challenge on appeal.

Aboriginal connection with the claim area after sovereignty

125 Continuing Aboriginal connection with the claim area generally was disputed by the State, and by other respondents at trial in respect of their particular areas of interest.

126 Lee J commenced his discussion of the evidence on this topic with the observation that unless there is evidence to the contrary, it may be inferred that when European settlement of the claim area began some sixty years after sovereignty was asserted, the Aboriginal inhabitants then in occupation of that area were connected both to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty. The question whether native title continued thereafter involved an assessment of the nature of the changes European settlement wrought upon the Aboriginal people occupying the claim area at the time of settlement. His Honour's discussion of the evidence on that question, and whether the Miriuwung and Gajerrong community maintain such a connection, is lengthy (at ALR 514-552) and is dealt with under headings:

(a) Historical evidence

127 Archaeological evidence showed continuity of use of particular areas of land after European colonisation. That evidence, coupled with ethnographic material, identified sites within the claim area as places of continuing ceremonial or mythical significance. There was evidence that rock paintings at some sites had spiritual and mythological meanings that have been handed down through the generations. His Honour found that the knowledge of Aboriginal people of the significance of such sites, together with the archaeological material, pointed to the observance or acknowledgment of traditional laws and customs by a community subsequent to settlement and of the maintenance of some form of connection with the land thereafter. Dr Gregory gave evidence that artefacts made from European materials and the depictions of rock art demonstrated that the sites continued to be used during the "contact period", which was a matter of importance, as ethnographic materials suggest that such art is only carried out in the "country" of the artist.

128 With the advent of the pastoral industry, which absorbed the Aboriginal communities, there was evidence that the former lifestyle of Aborigines in the area of congregating in the dry season and dispersing in the wet season was reversed by a pattern of employment and residence on pastoral properties in the dry season, and movement and congregation in the wet season during "holiday time". Formerly, the common pattern of land use was that Aboriginal people split into small family groups for hunting, collecting and foraging for much of the year, and that during the dry season large gatherings would occur for ceremonial, ritual, social and trading purposes. There were seasonal movements to the coast and lowland plains in the dry season, and to the higher country which provided places of shelter in the wet season. Notwithstanding this change of lifestyle, there was evidence that trading and exchange of artefacts was continued between groups within and outside the claim area after settlement.

129 Dr Gregory gave evidence that traditional Aboriginal societies in the region were initially militant and mounted resistance against European intrusions in the form of raids on stations, cattle spearing and physical retreat to less accessible places such as rugged sandstone country. He said it took fifty years between 1880 and 1930 before "pacification" or conquest of Aboriginal people in the region was effected by the use of force by settlers and law enforcement officers. During that time many Aboriginal people in the East Kimberley were killed by settlers and by others, including miners around the Halls Creek gold fields after 1885. Witnesses for the applicants in their evidence referred to this period as the "shooting time". In some areas Aboriginal groups were virtually annihilated by reason of these events, disease and malnutrition. Aboriginal numbers were also affected by the removal of large numbers of male Aboriginal people to remote prisons after conviction on charges relating to the killing of cattle, the removal of large numbers of young Aboriginal males from the Kimberley region for use as divers in the pearling industry, the aggregation and relocation of Aboriginal people from the region at ration stations established some distance away at Moola Bulla and Violet Valley, and the gathering of Aboriginal people and control of their traditional practices at settlements established by church missions in the region.

130 The introduction of cattle by pastoral enterprises seriously depleted usual sources of sustenance, making it difficult for remaining Aboriginal people to follow their nomadic way of life. The demand for labour by pastoral enterprises also saw inhabitants of the region taken into pastoral homesteads, where males were used as stockmen and females used in domestic service. The homestead became the source of food for both employed and unemployed Aboriginal people.

131 The effect of European settlement was greater around the pastoral properties in the Ord River valleys than in the more remote coastal areas. In those more remote areas, up to the 1930s, small groups of Aboriginal people maintained a nomadic lifestyle, taking sustenance from the land and avoiding the "white man". Although by then the majority of Aboriginal people in the region were living and working on cattle stations, there were others who stayed away in the ranges and were visited by family and friends during the wet or holiday season.

132 His Honour considered oral histories, some given by witnesses, and others recorded by an historian, Dr Shaw, in the early 1970s. Those histories include graphic accounts of massacres in the fifty years leading up to "pacification" and of the enforced removal of Aborigines from their bush life to station life. These histories were from people who identified themselves as Miriuwung or Gajerrong people. One of the people from whom an oral history was obtained by Dr Shaw, Grant Ngabidj, was a Gajerrong man born in about 1904. He gave an account of early contact with settlers which was related by Dr Shaw (at ALR 517) as follows:

"Soon after Grant was able to walk and run about, William Weaber a German station manager together with his brother and a number of white and Aboriginal station people from Queensland took up Ningbing Station, in 1907-08. Grant witnessed these persons round up many of his local group, most of whom were shot subsequently after he, his sister and their mother were removed from the scene."

133 Dr Green, in reports prepared for the State, also described killings of Aboriginal people that occurred as a result of the Kimberley gold rush, and massacres that occurred between 1884 and 1926. His Honour observed that settlers no doubt believed that their property and lives were under threat, and history records that in early years a number of drovers and pastoralists were attacked and killed - events that led to savage reprisals and pre-emptive action.

134 His Honour noted that Grant Ngabidj told Dr Shaw (at ALR 519):

"There were all Gadjerong people along the coast until the white men shot them. Half of them died and some of the young boys were brought into the stations to quieten them and to learn the horses, like me. All the Gadjerong people were taken out of their country and put on the stations or were killed. There are no people left there now."

135 There is evidence that there was a community described as "Doolboong" that as neighbours of the Miriuwung and Gajerrong existed in the coastal area. Bulla Bilinggiin, born in about 1899, told Dr Shaw in 1974 (at ALR 519):

"Dulbung is finished. Everybody died...and there was all that Dulbung lot from the coast down from Ningbing, down from Wyndham back this way."

136 Grant Ngabidj told Dr Shaw that Doolboong country was below Goose Hill, and that a number of Doolboong people lost their lives in the Forrest River massacre in 1926. At a Royal Commission appointed in 1927 to inquire into the events at Forrest River, a medical officer stationed at Wyndham gave evidence that (at ALR 519):

"I calculated that in the north during the last 50 years something like 10,000 natives had disappeared by devious means, not necessarily old age. Their natural game has been either exterminated or frightened away. Wherever a white man sets foot or uses firearms he frightened away the game. The native game being in diminished numbers their place taken by flocks and herds of their white oppressors."

137 Dr Green suggested that the extent of upheaval inflicted on Aboriginal inhabitants in the latter part of the nineteenth century and early twentieth century may have resulted in the replacement of those inhabitants by other Aboriginal communities, and that perhaps the Miriuwung or Gajerrong communities had come to the claim area at that time.

138 His Honour observed that the degree of dislocation and decimation caused by the arrival of settlers and miners in the East Kimberley in the 1880s and 1890s, and thereafter, cannot be underestimated in its effect of dispossessing Aboriginal inhabitants and of fracturing their communities. However, his Honour considered that in cross-examination Dr Green conceded that a number of propositions set out in his reports were to be read with qualification, and that he had raised the "replacement" possibility as one to be borne in mind, not to suggest that there was evidence to support it. Dr Green agreed that there was no question that whenever Aboriginal people went, or were taken, into pastoral station homesteads they continued, and have continued to the present, to practice their "law". Traditional usufructuary activities were pursued as circumstances permitted.

139 His Honour concluded that the account given by Grant Ngabidj to Dr Shaw that the Gajerrong people were taken out of their country and put on the stations, and that there were no people left (in their country), was to be understood in that light. His Honour considered that there was abundant evidence that although separated from their homeland country, most Aboriginal people were on stations in proximity to their country and continued to be bound or connected to the country, by their customs and beliefs, and renewed contact with it by returning to the place in the "holiday time" of the stations. Writings of anthropologists, referred to by his Honour, noted that the Aborigines were a deeply religious people whose religious feeling was manifest through ritual observance and through mythical expressions, and the information stored in them, which led to a deep emotional attachment to the land.

140 His Honour also referred to the effect of the 1968 Pastoral Award, which saw Aboriginal people leave pastoral properties, and to acts of the Crown which entrenched disadvantages suffered by Aboriginal people, such as the failure to extend suffrage to them in Federal elections until 1962, and in State elections until 1971. Education of Aboriginal people was also restricted, access to the State education system being denied to Aboriginal children until the 1950s.

(b) Linguistic evidence

141 Ms Kofod, a consultant linguist, gave evidence for the applicants to the effect that the existence of the Miriuwung and Gajerrong languages, and the use thereof by Aboriginal people, indicated a continuing existence of an identifiable Aboriginal community and of the maintenance of connection with land with which the group had been associated by repute. Ms Kofod had observed and studied speakers of the Miriuwung and Gajerrong languages for periods of three or four months in each year between 1971 and 1974, again in 1986 and on numerous periods in 1987 and 1988. His Honour described her as an impressive witness whose evidence could be relied upon.

142 Ms Kofod stated that the Miriuwung and Gajerrong languages are related languages being part of a group of languages known as Jerrag. There are differences between the languages and each may be treated as a distinct and separate language, used for separate "countries", albeit areas with overlapping boundaries. The people of each "country" related parallel Dreaming (Ngarranggarni) stories for different areas of land in each country. Based on time spent with Miriuwung people over twenty-five years, and observing their knowledge of the land, its resources and continued use, Ms Kofod considered their knowledge of the mythical connections with the land handed down by ancestors, their desire to establish a language and cultural centre to preserve and promote the Miriuwung and Gajerrong languages, their desire to impart to the young their knowledge about the land they claimed as "country", and their desire to establish "outstations" on "country", led to the conclusion that the Miriuwung and Gajerrong people had continued to maintain a connection with the land claimed as "country" since the advent of European settlement in the region.

143 A report was submitted by the State from Dr B A Sommer in response to Ms Kofod's report. Dr Sommer suggested the possibility that the Miriuwung and Gajerrong community had taken over habitation of the area from another group or groups. As to that suggestion his Honour concluded (at ALR 524):

"It may be thought that in the absence of any evidence that such an event had occurred subsequent to the formation of a colony, there would be little room for such speculation. It was made clear by Ms Kofod that the extent of the use of the Miriuwung language in respect of features of the claim area, coupled with ethnographic material relating to widespread Dreaming and spiritual connections with the land for Miriuwung and Gajerrong people, speak quite forcefully of lengthy occupation of the relevant area and make it most improbable that the Miriuwung and Gajerrong were first connected with the land some time after 1825 or 1829."

144 In the evidence presented the claim area was said to be Miriuwung and Gajerrong country partly because that is where the languages belong, not because it is country inhabited by people who speak Miriuwung or Gajerrong. His Honour concluded that the mutual possession of a language connected with the land was an incident of identification of the community, as was mutual recognition of membership of that community, mutual acknowledgment and observation of traditional law, customs and practices, and the recognition by others of the existence of the community.

(c) "Primary" evidence of applicants

145 Numerous "primary" witnesses were called on behalf of the applicants, and also by the Territory applicants. His Honour described the evidence from a number of them as "impressive", and found there to be no issue of credibility in respect of any of the primary witnesses. Whilst some had greater knowledge than others of relevant matters, his Honour said that they all spoke of a community based on the tradition of forebears. His Honour said (at ALR 526):

"Having due regard to the difficulties they faced, and interpreting the evidence with consciousness of the special nature of the Aboriginal claims, I found the `primary' witnesses for the first and second applicants to be convincing in their description of connection to land and acknowledgement of traditional practices. I was impressed by evidence of profoundly held views and beliefs given in a forthright manner without embroidery. Evidence given by senior and respected people, and by others who deferred to them, produced a very clear impression of witnesses who understood that they shared membership of a distinct social group or community identified by common beliefs, mutual recognition of membership, shared use of, or reference to, the Miriuwung or Gajerrong languages, and observance, as members of that community, of practices based on traditional laws or customs. Evidence of an organised community which observed traditional practices, laws or customs was most convincing."

(d) Anthropological evidence

146 The applicants adduced expert evidence in written reports and in oral evidence from two anthropologists, Mr Akerman and Associate Professor Christensen. Their reports drew together and discussed in a contemporary conceptual framework diverse written and unwritten ethnographical material relating to the Miriuwung and Gajerrong people, for the purposes of the proceedings. The reports made reference to earlier works conducted in the 1920s and 1930s by Professor Elkin and Ms Kaberry. Ms Kaberry had conducted field work in the region, under Professor Elkin's supervision, in 1934 and in 1935-36, leading to the publication of the leading text Aboriginal Woman; Sacred and Profane, George Routledge & Sons Ltd, London, 1939 and a number of shorter articles. Her field notes and the numerous genealogical charts recorded in her field diaries were available to the anthropologists who gave evidence, as were the field notes of a linguist, Arthur Capell, who worked in the region between 1938 and 1939. The Territory applicants tendered anthropological reports from Mr Barber and Dr Palmer, and also led further oral evidence from them. The Balangarra Peoples tendered an anthropological report from Ms Doohan, together with genealogies and genealogical charts prepared by her.

147 The State tendered a report and led oral evidence from Professor Maddock, who was the only anthropologist called to give evidence for the respondents at trial. He had not conducted field work in the claim area, and his report was a comment on the opinions of the other anthropologists expressed in their reports.

148 Associate Professor Christensen and Professor Maddock prepared supplementary reports after hearing the "primary" evidence led at trial.

149 His Honour described the evidence of the anthropologists as clear, objective and helpful. Mr Akerman and Associate Professor Christensen emphasised the continuity of connection between the people who regarded themselves as the Miriuwung and Gajerrong community today, and the organised societies in occupation at the time of settlement. Professor Maddock's report, however, was directed to the possibility of population shifts into, or out of, the claim area and the extent of the possible change to the system of social organisation that had existed in the claim area at the time of sovereignty.

150 His Honour observed that it was apparent during the cross-examination of Professor Maddock that he agreed with significant aspects of the Miriuwung and Gajerrong people's case that communal native title is held by a wider community than a "local descendant group" (being a group of the kind in which statutory rights in land may be vested under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)). His Honour found that there was accord between the anthropologists, that in respect of parts of the claim area "local descent" or "estate groups" anchored in areas of country by a particular site or geographic feature with which they had a special bond, were part of the framework of the traditional laws or customs of the Miriuwung and Gajerrong people in respect of land. The rights distributed to such subgroups under traditional laws and customs included the right to use a particular area of land for the benefit of that "estate group" and the right of some in that group (the "Dawawang") to "speak for" that land and as to its use. Attached to those rights were responsibilities which included a duty to "care for" the country and to protect Dreaming sites, art sites and other places of significance in the "estate" area. His Honour noted that (at ALR 529):

"'Estate groups', however, were not self-contained, or autonomous functioning societies in occupation of the land. They were subgroups of the Miriuwung and Gajerrong community from which rights and duties devolved under the traditional laws and customs of that community."

151 His Honour discussed the kinship and subsection systems and totemism recognised in the East Kimberley. The evidence of Mr Barber and Dr Palmer was that one effect of the subsection system is to extend behavioural rules based on kinship to persons who are not related consanguinely. His Honour concluded (at ALR 530):

"Both the kinship and subsection system tend to suggest that from the Aboriginal perspective relationships between people, and their relationship with land, do not depend solely, or necessarily, on biological descent, a view confirmed by Ms Doohan in her evidence. Other factors said by both the anthropologists and the `primary' witnesses to be relevant to the existence of such a connection were adoption, place of birth or place of conception. These so-called `secondary' mechanisms are not regarded as aberrations to a general rule but as demonstrative of the interconnectedness of various aspects of Aboriginal society."

152 His Honour also noted that the anthropological evidence emphasised the comprehensive influence of the Dreaming (Ngarranggarni) and totemism. Associate Professor Christensen stated that the Dreaming simultaneously provided for local independence and authority (for example, "Dawawang" rights related to particular "estate groups") and the affirmation of mutual dependence on neighbouring subgroups through ritual and ceremony. Mr Akerman described the wide scope of Dreaming, and the responsibilities of different "estate groups" along the Dreaming track for segments of it. He confirmed the link between Dreaming, ceremony and ritual. Anthropological evidence confirmed the evidence of "primary witnesses" that major ceremonies were held in association with neighbouring and sometimes more distant communities.

(e) Genealogical evidence

153 Genealogical evidence was adduced from the "primary" witnesses and from the anthropologists called by the applicants, the Territory applicants, the Balangarra Peoples and the Kimberley Land Council. Evidence also included charts prepared by the anthropologists, charts and field notes prepared by Ms Kaberry in the 1930s, and oral histories recorded by Dr Shaw. By that evidence the applicants sought to establish that they had forbears who were members of an Aboriginal community or communities that occupied the claim area well before contact with European settlers and, by inference, before sovereignty was asserted by the State or the Territory. Further, by showing relationships between Aboriginal people, the material was relied upon to establish the existence of an identifiable community that had a connection with land through forbears and which observed, or acknowledged, traditional laws and customs of the forbears.

154 Having regard to the general consistency of the content of the charts with the tenor of the "primary" evidence of the applicants, his Honour expressed his satisfaction as to the reliability of the methods employed by the anthropologists in preparing the charts. His Honour considered the charts represented the accepted social recognition of kinship and "biological descent" in its widest sense. His Honour held that the requirement of "biological descent", referred to by Brennan J in Mabo [No 2] at 70 involved a broad understanding of descent, not the application of a narrow and exclusive test. His Honour said (at ALR 532):

"...it is not a requirement that a `biological' connection be made between each member of the Miriuwung and Gajerrong community and an ancestor who was in occupation of the claim area at the time of sovereignty as a member of an identifiable and functioning society. What is required is that there be sufficient connection by way of actual, or implied, genealogical links to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title. Part of that connection is shown by demonstrating the observance, or acknowledgement, by the community in some practical form of traditional laws or customs. As far as the requirement of descent is concerned, it is sufficient to show that an inference may be drawn that known ancestors were connected with the community in occupation at the time of sovereignty and with members of the present community."

155 His Honour said that the genealogies showed a broad spread of links between ancestors identified in the judgment and the representative applicants. After considering the evidence as to the genealogical links, including those going back to Grant Ngabidj who was married to Maggie Darrng, identified by one witness as the last of the Doolboong, his Honour concluded (at ALR 535):

"The interlocking connections, vertical and lateral, with numerous members of the Miriuwung and Gajerrong community were extensive and more than sufficient to support the conclusion that members of the Miriuwung and Gajerrong community had ancestral links to the community in occupation of the claim area at the time of sovereignty."

156 On this aspect of the case his Honour noted that the Territory made it clear from the outset of the trial that it was not part of the Territory case to say that the Miriuwung and Gajerrong people were not the "right people in the Aboriginal way" for the Territory part of the claim area.

(f) Observance of traditional laws, customs and practices to maintain connection with prior community and with the land

157 His Honour concluded that the evidence was "clearly sufficient" to hold that the Miriuwung and Gajerrong community retained a form of practice of traditional laws and customs that showed that, as far as practicable, the community had a connection with the land attributable to an ancestral community. His Honour said he had no doubt that the community relied upon links with forbears for the right to enjoy, or the obligation to perform, the numerous activities identified in the evidence (at ALR 539). Activities identified in the evidence referred to by his Honour included:

* almost without exception members of the Miriuwung and Gajerrong community retain, and are known to each other by Aboriginal names, in addition to European names;

* the subsection or "skin" names still form part of the organisation of the community;

* marriage rules based on the subsection system have yielded to the influence of the surrounding European lifestyle, but the avoidance rules and taboos of that system remain relevant to community behaviour and are adhered to;

* avoidance of places according to the requirements of traditional laws is observed, and the names of the recently deceased are not spoken;

* traditional ceremonial practices are still followed, including initiation ceremonies;

* the passing down of ritual knowledge incrementally from elders to others continues to be followed; rules on the restriction of access to such knowledge are rigidly applied;

* Ngarranggarni stories are known and referred to regularly and the elder members of a community regard themselves as obliged to transfer this knowledge to the younger members. (His Honour referred to important Ngarranggarni stories relating to the claim area, which were spoken of in evidence);

* rules relating to control of knowledge of separate men's and women's law are followed and regarded as important in the organisation of a community;

* there is a deep community interest in the preservation of Miriuwung and Gajerrong languages;

* traditional skills handed down through generations remain; for example, the making of spears still serves a purpose in fishing in riverine pools; and members of the community continue to hunt fish and gather traditional foods;

* the members of the Miriuwung and Gajerrong community retain substantial knowledge of the location and use of bush foods and bush medicines; and

* hunting and fishing practices are not only motivated by the desire for sustenance but by the desire to maintain a connection with the land and with ancestors: there was evidence of specialised knowledge of the methods for hunting certain animals, and for the proper or customary way to prepare and cook them.

158 His Honour also referred to another current activity. He said (at ALR 538):

"There was evidence of the contemporary use of natural resources found in and around the claim area for ceremonies and tool-making, in particular, ochre for the former. Consistent with the `primary' evidence, the archaeological evidence suggested that sources of ochre within Miriuwung and Gajerrong country were limited and that all locations of ochre were associated with sacred sites."

159 Having discussed the above activities his Honour said (at ALR 539):

"As the ecology of the claim area, and the nature of the occupation of it by the Miriuwung and Gajerrong people, has changed since settlement their opportunity to engage in traditionally-based activities on the land has been restricted. However, against the historical background discussed above, namely, the manner in which people were brought into the stations in the early years of settlement; the changes brought about by the pastoral industry and by the Ord River irrigation scheme; the drift from the pastoral stations into the town of Kununurra in the late 1960s and 1970s; the story presented by the evidence remains that of a people who have sought to maintain their connection with land in a practical sense. First, through the use of `holiday time' while working on the stations and, thereafter, by seeking to establish outstations on traditional country to give them the opportunity and authority to continue traditional links.

As noted earlier in these reasons, there is a very strong affiliation with particular areas of land by particular groups in the Miriuwung and Gajerrong community, not restricted to the groups represented by the second applicants. The court was left with the impression that fundamental ties to the land remain. There is acceptance of obligations to care for country and to protect sites of spiritual and ancestral significance. Community members know their land by place names that have been passed on by members of Miriuwung and Gajerrong communities making connection with the land of particular significance to them."

(g) Conclusions

160 His Honour addressed the question of whether a communal title was held by the Miriuwung and Gajerrong community, or vested in persons who "speak for" the "estate groups" of the Miriuwung and Gajerrong community, as asserted by the Territory applicants.

161 His Honour observed that the clear thrust of the evidence from both the applicants and the Territory applicants was to the effect that there is an organised community of Aboriginal people, described as Miriuwung and Gajerrong, which possess the languages and the Ngarranggarni that are part of, or run through, the claim area being a community which observes traditional laws and customs. Without exception the "primary" witnesses identified themselves as Miriuwung or Gajerrong, and were regarded by others as Miriuwung or Gajerrong. His Honour said (at ALR 542):

"Being satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty in the State or the Territory, it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people. In observing, or acknowledging, customary rules or practices, the community may be so organised that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by subgroups whether described as `estate groups', `families' or `clans' but the traditional laws and customs which order the affairs of the subgroups are the laws and customs of the community, not laws and customs of the subgroup."

162 His Honour was satisfied that the Miriuwung and Gajerrong community had maintained a connection with the ancestral communities which held the native title at sovereignty, and had maintained connection with the land to which that native title applied.

Boundaries of Miriuwung and Gajerrong Land

163 His Honour considered the evidence as to the boundaries of Miriuwung and Gajerrong territory. The extent of the Miriuwung and Gajerrong communities' rights and interests in the claim area was disputed by the respondents. According to the applicants' witnesses, whilst the Miriuwung and Gajerrong communities were, generally speaking, occupants of adjacent territories, the territories did overlap in part. Ethnographic maps suggested that the approximate boundary extended from the Ord River, north of Goose Hill, to Point Springs, north-east of Kununurra, and further east into the Northern Territory beyond the Territory part of the claim area. To the north was Gajerrong territory and to the south Miriuwung territory. The respondents at trial mainly disputed the boundaries and the extent of the Gajerrong territory, but also challenged the extent of the Miriuwung territory in three respects, these being in the west in the Goose Hill area, in the south in the Glen Hill area, and in an area south-east of Lake Argyle.

Miriuwung boundaries

164 In respect of the Goose Hill area, the State suggested that there had been a northward movement of the Miriuwung people, and that the Miriuwung connection with that area was therefore of recent origin. In respect of the southern parts of the claim, it was suggested that the area was Gija territory last century, and, by inference, that the Miriuwung community had expanded southward.

165 In respect of the Goose Hill area his Honour held that in the past there had been a shared Miriuwung-Goolawerreng use of that area, and that the Miriuwing identification with the country was not of recent origin. However, in respect of portion of the claim area to the west of Goose Hill known as the Parry Lagoon area, the applicants' witnesses disclaimed an interest, saying that the area belonged to another community. That area was excluded from the determination area in the final orders.

166 As to the southern part of the claim area his Honour concluded on the whole of the evidence that historically the Miriuwung people were connected with that area, and that the connection had been maintained. However, his Honour noted that the evidence suggested that the area in question may have been shared and that native title was also held by the Malngin and Gija communities, but that (at ALR 546-547):

"No determination to that effect can be made in this proceeding under the Act as amended. If communal title is asserted by communities claiming connection with the original Malngin and Gija communities, that may require an application for declaration of a common law right in a court of competent jurisdiction."

Gajerrong boundaries

167 The respondents at trial contended that all or at least the greater part of the claim area, said by the applicants to have been Gajerrong country, was occupied at sovereignty by other communities and not by people who identified themselves as Gajerrong. In particular the respondents at trial contended that part of the area was Doolboong country. After analysing the evidence relevant to this topic, his Honour rejected the contention that people who now identify themselves as Gajerrong and who assert a right to the claim area north of Miriuwung did so as the result of the introduction, post-sovereignty, of Gajerrong speaking peoples from outside the claim area. Whilst there is little doubt that there has been a dramatic thinning of population in this part of the claim area, and a loss of the cultural and language diversity that may have been present at the time of sovereignty, his Honour was satisfied that a connection with ancestors who were members of the original community occupying the land had been demonstrated. His Honour said the evidence suggested the conclusion that in part of the northern claim area, those identified as Doolboong, Wardenybeng and Gajerrong had in the past mixed together socially and culturally and exploited the resources of the land together. However, apart from one person who was identified in evidence but was not called by the Kimberley Land Council as a witness, there was no evidence that there was any Aboriginal person identified as Doolboong or Wardenybeng who asserted an interest in the part of the area claimed as Gajerrong territory.

168 His Honour held that the Gajerrong identity of the present community is rooted in the past and lends weight to the contention that the community has maintained, as far as practicable, a connection with the claim area since the time of sovereignty.

Claims of the Territory applicants and the Balangarra Peoples

169 His Honour held that the claim of the Territory applicants could not be separated from the claim made by the applicants on behalf of the Miriuwung and Gajerrong community of which the Territory applicants were part. On the Balangarra Peoples' claim, his Honour held that from the time of sovereignty rights and interests in Booroongoong were shared between Gajerrong people and Aboriginal people from the western side of the Gulf, through whom the Balangarra Peoples claimed. His Honour held that both groups had a continuing connection with Booroongoong, and that both groups had maintained their connection with the island. As to the evidence linking the Gajerrong peoples with Booroongoong his Honour said (at ALR 551):

"There was also evidence that Boorroongoong was part of the country connected with the Gajerrong people, that they have knowledge of Dreamings associated with that area, distinct from that of Kaalgi (an ancestor of one of the Balangarra Peoples), which link the island with Gajerrong country on the eastern side of the Gulf, that the Gajerrong men swam to the island on logs for hunting and that Gajerrong people continue to assert rights and responsibilities in relation to the island under their laws and customs."

Arguments on Appeal

170 It is convenient to deal with the submissions of the appellants under the headings which follow.

Jurisdiction issue, and form of the determination

171 Apart from challenges to factual findings about the existence of native title and to conclusions on extinguishment issues, the State's grounds of appeal raise questions as to the jurisdiction of the Court, and as to the form of the determination itself. It is contended that:

* the Court had no jurisdiction under the NTA to make a determination of native title in favour of the Balangarra Peoples, as the Tribunal had not referred to the Court an application for determination as required by ss 74 and 81 of the NTA;

* even if the findings of fact of the trial judge are accepted, those findings do not support a determination that the Miriuwung and Gajerrong people are the common law holders of native title rights and interests in the determination area. It is said that the determination should have been in favour of the members of each estate group in relation to their separate areas of "country". These submissions are supported by both the Territory and the Territory applicants. It is contended that the determination should have identified areas and boundaries within the determination area which delineate the "country" of particular estate groups, and also the members of each estate group. Further, it is contended that paragraph 3 of the determination identifies rights and interests that go beyond any evidence at trial, of activities of the kind described being carried out by the applicants on the land;

* the determination, in any event, is defective as it fails to state (and the judgment fails to make findings about):

q which people hold the native title and how the holders are to be identified from time to time, e.g. by patrilineal descent from named ancestors. The determination also fails to identify the laws and customs of the native title holders governing transmission;

q the rights arising under common law of other members of the public, e.g. the right of members of the public to fish in tidal waters.

* the trial judge should have included a determination that native title does not exist in that portion of the claim area to the west of Goose Hill known as Parry Lagoon.

172 These questions turn on the requirements of the NTA. As already noted, in the course of these proceedings the new Act came into force. Pursuant to the transitional provisions in Table A of the Native Title Amendment Act 1998 (Case 3 in item 6), the original application is taken to have been made to the Federal Court and is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act. As the application was lodged by the applicants under the old Act it is however necessary to make reference to a number of provisions in the legislation both before and after the amendments.

173 The third main object of the NTA, set out in s 3, is "to establish a mechanism for determining claims to native title". This object reflects the statement in the Preamble which says:

"A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character."

174 The NTA lays down procedures intended to achieve the stated object. The statutory scheme for dealing with applications under the provisions of the old Act was considered by the High Court in the Waanyi Case at 613-615.

175 The old Act, ss 13 and 61, provided that an application for a determination of native title was made in the first instance to the Registrar of the Tribunal. The new Act provides that applications are made to the Federal Court but otherwise the terms of s 13 are the same as in the old Act. Section 13(1) in the old Act relevantly provided:

" An application may be made to the Registrar under Part 3:

(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5)."

176 Subsection 13(5) provides that the grounds for variation or revocation of an approved determination of native title are that events have taken place since the determination was made that have caused it to no longer be correct, or that the interests of justice require the variation or revocation. Section 13 of the old Act, when read with s 225 of the old Act, indicate that a determination of native title in respect of an area of land, once made, was intended to determine the rights and interests both of the claimants and any other persons holding an interest in the land. That intention has been made even clearer by amendments incorporated into the new Act. Section 61A(1) of the new Act provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title, and s 68 says that if there is an approved determination of native title in relation to a particular area, the Federal Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area except on an application for revocation or variation of the first determination under s 13(1) or on a review or appeal of the first determination.

177 The expression "native title", defined in s 223 of the NTA, recognises that native title rights and interests include communal, group or individual rights and interests. The nature and incidents of native title are to be ascertained by evidence in the particular case. In Mabo [No 2] the evidence showed that traditional communal title remained in existence. That title was held by the Meriam people, and the common law could, by reference to the traditional laws and customs of those people, identify and protect the native rights and interests to which they gave rise. Brennan J said, at 60:

"Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so)."

and at 61:

"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

178 Brennan J had earlier described the nature of the communal title and enjoyment under it of particular rights by individuals or groups within that community at 51-52:

"Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown's radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum (1971) 17 FLR 141 at 272, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights."

179 Brennan J contemplated that under the laws and customs of a community holding communal native title there could be within that community smaller groups, even individuals, that enjoyed particular rights (and responsibilities) in relation to different parts of the land in relation to which the native title rights and interests existed.

180 Part 3 of the NTA deals with applications to the Federal Court for the determination of native title. Part 4 of the Act deals with determinations of the Federal Court. Section 61(1) sets out the applications that may be made. The kind of application which is relevant in this case is a "Native title determination application". The old Act provided that the "persons who may make application" were "A person or persons claiming to hold the native title either alone or with others". Section 61(3) provided that an application made by a person or persons claiming to hold native title with others must describe or identify those others, although in doing so it was not necessary to name them or to say how many there were. The description of the persons who may make such an application in the new Act is:

"A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group."

181 Under the new Act the person or persons named becomes the applicant (s 61(2)) and s 251B describes the way in which a native title claim group may authorise the person or persons bringing the application. The NTA plainly contemplates a claim by a group or community of people.

182 Under the procedure of the old Act which was followed in this case, the Registrar of the Tribunal, on being satisfied that the procedural requirements of s 62 were fulfilled, accepted the application, and took the action required by the former s 66 to give notice of the application to all persons whose interests might be affected by a determination in relation to the application. Section 66(2) provided that the Registrar was to be taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the Registrar:

"(a) gives notice containing details of the application to:

(i) the registered native title claimant (if any) in relation to the area covered by the application ; and

(ii) the Commonwealth Minister; and

(iii) if any of the area covered by the application is within the jurisdictional limits of a State or Territory - the State Minister or Territory Minister for the State or Territory; and

(iv) any registered native title body corporate in relation to any of the area covered by the application; and

(v) any person who holds a proprietary interest in any of the area covered by the application; being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

(vi) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

(b) notifies the public in the determined way of the application."

183 Under the new Act, notice of an application is to be given to a similarly wide category of people, now including the local government body for the area covered by the application.

184 Under s 68(2) of the old Act, any person covered by s 66(2)(a) (i)-(vi) or any person whose interests might be affected by a determination in relation to the application, on notifying the Registrar in writing within a specified time, became a party to the application. If the application was not settled, such persons became a party to the proceedings in the Federal Court once the application was referred under s 74: see s 84(1). Under the new Act similar provisions prescribe who shall be parties to the proceedings: see s 84 as amended.

185 Under s 62(1)(c) of the old Act an application for native title determination was required to "contain a description of the area over which the native title is claimed". The requirement to describe the land is more extensively laid down in s 62(2) of the new Act. Further, the new Act requires a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests): s 62(2)(d).

186 Under the old Act, and more plainly so under the new Act, the procedure for the bringing of a claim was intended to identify a particular geographic area, and to notify all those who may have or claim an interest in or in relation to that area. The provisions as to parties indicate that the Act intended that persons wishing to be heard, in particular in opposition to the claim, had the opportunity to become a party and to be heard.

187 If an application for determination of native title is opposed, and not settled by agreement through the process of mediation or otherwise, the NTA provides for the curial determination of the claim by the Federal Court. Section 94A of the new Act provides:

"An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title)."

188 Section 225 of the new Act provides:

"A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others."

189 Section 225 of the old Act was less demanding of detail, but nevertheless required a determination of whether native title existed in relation to a particular area of land or water, and if so, who held it, whether the native title rights and interests conferred possession occupation use and enjoyment of the land or waters on its holders to the exclusion of all others and, in any case, the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests. Section 225(a) by its terms contemplates that a determination may be made in favour of a group of persons holding common or group rights. There is no requirement that each member of the group be named or otherwise identified.

190 The scheme of the NTA was and is to have before the Court in a matter that requires curial determination, all parties who hold or wish to assert a claim or interest in respect of the defined area of land. This process is to bring about a decision which finally determines the existence and nature of native title rights in the determination area, and which also identifies other rights and interests held by others in respect of that area. As the determination is to be declaratory of the rights and interests of all parties holding rights or interests in the area, the determination operates as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland [1994] FCA 967; (1994) 49 FCR 1.

191 Lee J dismissed the challenge to the jurisdiction of the Court to make a determination of native title in favour of the Balangarra Peoples, saying (at ALR 552):

"It is apparent from the provisions and objects of the Act that the court is given jurisdiction to resolve a dispute by determining whether native title exists. Once a matter attracting jurisdiction is before the court the whole of the dispute as to the existence of native title in respect of the land the subject of the application referred to the court, and arising out of the facts which underlie that matter, can be dealt with by the court if the appropriate parties are properly joined to the litigation to have that dispute resolved."

192 In our opinion Lee J was plainly correct in so holding. Even if the Balangarra Peoples had not obtained leave to be joined as an applicant, and had participated in the hearing as respondents, the jurisdiction of the Court extended to making an order which determined that they held native title rights and interests within the determination area. Section 225 expressly requires the Court to determine the persons or each group of persons holding the common law rights comprising native title, and the nature and extent of those rights and interests. Section 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the named persons who initiate the claim for a determination of native title.

193 Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. The fact that the trial judge, as a matter of procedural convenience, gave leave to the Balangarra Peoples to become applicants, did not affect the jurisdiction of the Court to make a determination in respect of their rights and interests. Moreover, when judgment was delivered, s 67 of the new Act required that the Court make such order as it considered appropriate to ensure that the overlapping claim of the Balangarra Peoples be "dealt with in the same proceeding".

194 The challenge to the jurisdiction of the Court in respect of the determination in favour of the Balangarra Peoples fails.

195 We turn to the complaint that the trial judge's findings cannot support a determination in favour of the Miriuwung and Gajerrong community.

196 If the Court proposes to make a determination that native title exists, at the time of making the determination the Court is required by ss 55-57 of the NTA to make additional determinations concerning the manner in which the native title is to be held. Similar obligations rested on the Tribunal under provisions in the old Act. The procedures laid down in the sections result in native title being held either in trust for the common law holders by a prescribed body corporate (s 56(2)(b)), or by the common law holders themselves (s 56(2)(c)). Section 57(1) provides that if the determination under s 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate, as defined in s 253, must also perform any other functions given to it as a registered native title body corporate under particular provisions of the NTA, and any functions given to it under the Regulations. Sections 56(4) and 58 empower regulations making provision in respect of the holding in trust of native title rights and interests, and functions which a registered native title body corporate is required to perform. Sections 57(2) and (3) deal with cases where native title rights and interests are not to be held in trust by a prescribed body corporate. In those cases the Court is required to nominate a prescribed body corporate which must perform functions given to it under the NTA and Regulations. The Native Title (Prescribed Body Corporate) Regulations (the Regulations) prescribe these functions. In particular, a prescribed body corporate is required to act as agent or representative of the common law holders in respect of matters relating to the native title, to manage the native title rights and interests, to consult with, and act in accordance with the directions of, the common law holders in performing any of its functions, and to enter into agreements in relation to the native title binding on the common law holders if the common law holders have been consulted about and have authorised the agreements, and the agreements have been made in accordance with processes set out in the Regulations.

197 The Regulations in force at the time of judgment have since been replaced by the Native Title (Prescribed Bodies Corporate) Regulations 1999 which in relevant respects contain similar provisions. The Regulations provide for decision making that involves consultation with the common law holders of native title rights and interests. The Regulations establish a regime under which decisions concerning the management of native title rights and interests by the common law holders will be taken through the registered native title body corporate. The registered native title body corporate becomes the entity that speaks for and makes decisions on matters concerning the native title in dealings with public authorities and members of the public other than the common law holders themselves. See, for example, ss 24BC and 24BD(1), 24CC and 24CD(2), and 24DE(1) and (2). To this end, the Regulations provide for the giving of a document by the common law holders which will be taken as evidence that the necessary consultation and decision making process has occurred in relation to a decision.

198 By force of s 59 of the NTA and the Regulations, a prescribed body corporate is an Aboriginal Association incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) on or after 30 December 1994 for the purpose of being the subject of a ss 56 or 57 determination. An Aboriginal Association is taken to be incorporated for that purpose only if all members of the association are persons who, at the time of making the ss 56 or 57 determination, are included, or proposed to be included, in the native title determination as native title holders, and if at all times after the determination is made all members of the association are persons who have native title rights and interests in relation to the land or orders to which the native title determination relates. An Aboriginal Association incorporated under the Aboriginal Councils and Associations Act is by s 43 required to have rules which include rules making provision for and in relation to the procedure for settling disputes between the association and its members, and the procedure for the conduct of meetings of the governing committee of the association.

199 The regime created by the interaction of the Act, the Regulations, and the Aboriginal Councils and Associations Act establishes a registered native title body corporate as the entity with which a public authority and members of the public are to deal in relation to the management and administration of native title rights and interests which have been determined to exist. As between the registered native title body corporate and the common law holders of native title rights and interests, their relationship is governed by the Regulations and rules of the body corporate relating to the control and governance of that body.

200 The evidence led by the applicants in support of their claim for a determination in favour of the Miriuwung and Gajerrong as a composite community identified within the claim area separate estate groups who treated as their "country" discreet areas within the claim area. Within the State the evidence showed that there were the Yirralalem, Yardanggarlm, Wiram, Ngamoowalem, Mandangala, Gulalawa and Nganalam estate groups and in the Territory there were the Bindjen, Damberal and Nyawamnyawam estate groups. It is clear, however, that his Honour treated those estate groups as subgroups of either the Miriuwung or Gajerrong communities. Further, whilst his Honour treated the territory of the Gajerrong community as adjacent to and separate from the territory of the Miriuwung community, he held that they shared economic and ceremonial links which were reinforced when the extensive depletion of Gajerrong people after European settlement saw the Miriuwung and Gajerrong "become regarded as a composite community with shared interests" (at ALR 541). This finding is criticised by the State because his Honour did not say by whom they had "become regarded" as a composite community, but we think it is clear that his Honour meant that the members of each of the communities so regarded themselves. The effect of his Honour's findings is that the composite community, which had ancestral connection with the Aboriginal community or communities which occupied the claim area at the time of sovereignty, observed in common traditional laws and customs, in the observance of which subgroups, whether described as estate groups, families or clans, had responsibility for and control of discreet areas of "country" within the claim area.

201 In our opinion, those findings, assuming that they are justified by the evidence, support a finding that the native title rights and interests existing in the area were possessed by the Miriuwung and Gajerrong community. The enjoyment of particular rights or responsibilities and control for different areas of "country" followed from the observance of the traditional laws and customs of that community.

202 As Brennan J observed in Mabo [No 2] at 51, there may be difficulties of proof of boundaries or membership of the relevant community, but those difficulties afford no reason for denying the existence of native title rights and interests. The requirement of the NTA that the claim area be precisely identified in the application, and that the ultimate determination of native title identify a determination area, prescribe the need for precision in specifying the perimeter boundaries of the area in question. Moreover, s 225 requires the Court to determine the nature and extent of native title rights and interests in relation to the determination area. Within that area, however, the NTA does not require the determination to specify precisely which members of the community that is the common law holder of the native title rights and interests, have or may exercise particular rights in relation to particular areas of land. The enjoyment of the communal rights or some of them is a matter which is left for the common law holders to determine among themselves in accordance with the traditional laws and customs as currently acknowledged and observed.

203 It was submitted by the State that the determination in favour of the Miriuwung and Gajerrong people was in error because it had the effect of giving Miriuwung people an interest in Gajerrong country and vice versa notwithstanding the finding that the Miriuwung country and the Gajerrong country were separate territories. The State further contended that the determination was defective because it failed to state the matters required by s 225 of the NTA. The State contended that the determination should identify and declare what particular native title rights are held, and may be exercised and enjoyed, by particular people or groups in respect of particular areas within the determination area. In particular the rights and interests which may be exercised and enjoyed by members of each estate group should be identified along with the boundaries of the country over which those rights exist.

204 Those submissions fail to recognise that rights of occupation, use and control of particular areas enjoyed by the Miriuwung and Gajerrong community, and the estate groups within it, are a consequence of the communal title shared by the composite community under the traditionally based laws and customs as currently acknowledged and observed by it.

205 The degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests, and is likely to vary from case to case, depending upon the evidence. In Mabo [No 2], the court declared that "the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands" (save for the islands of Dauer and Waier and certain parcels of land excluded from the declaration). The declaration was made in those terms notwithstanding evidence that under the traditionally based laws and customs of the Meriam community, as currently acknowledged and observed, individuals within that community occupied and cultivated plots of land to the exclusion of other members of the community. It was not necessary for the declaration to spell out the personal or usufructuary rights of particular individuals within the community. The declaration as made determined the nature and extent of the native title rights held by the Meriam people as against the whole world. As between themselves, the Meriam people determined their respective rights and interests according to their laws and customs.

206 In a claim under the NTA where findings as to the native title rights and interests held by an indigenous community are similar to those made in Mabo [No 2], a determination that the community is the common law holder of native title rights and interests which entitle them as against the whole world to possession, occupation, use and enjoyment of the determination area would be sufficient, without further definition of rights and interests which may be enjoyed by different members of the community.

207 If the evidence establishes that the indigenous community is entitled as against the whole world to possession, occupation, use and enjoyment of the land, that entitlement will be similar in its enjoyment to the incidents which attach to a freehold title. Subject to the general laws of Australia which regulate or restrict the use and enjoyment of the land, insofar as those laws apply to the indigenous community, the community will have the right to control access to the land, to make decisions as to its use and as to the use and enjoyment of its resources, subject to its own traditionally-based laws and customs. The activities which members of the community may undertake in accordance with their laws and customs are not frozen in time at sovereignty, and may include activities of the kind undertaken from time to time by other members of the Australian community who use and enjoy a freehold title. In the present case we construe paragraph 3 of the determination to declare that, subject to the concurrent rights and interests identified in the Third Schedule held by others in relation to parts of the determination area, the native title rights and interests of the common law holders in the determination area are an entitlement as against the whole world to possession, occupation, use and enjoyment. That entitlement is exclusive to the Miriuwung and Gajerrong community, save for the concurrent rights and interests identified in the Third Schedule, and save that in respect of Boorroongoong the Balangarra Peoples and the Miriuwung and Gajerrong people have concurrent rights and interests.

208 The appellants contended that paragraph 3 of the determination identifies rights and interests which go beyond any evidence at trial of activities of the kind described being carried out by the applicants on the land at any time. However we do not think that his Honour intended the list of rights and interests set out in paragraph 3 of the determination to reflect findings of the actual exercise of rights disclosed by the evidence. Rather, the list is intended to reflect activities permitted by the native title rights and interests which arise by reason of common law holders having an exclusive right to possess, occupy, use and enjoy the determination area subject only to the concurrent rights and interests of others set out in the Third Schedule. The list, by the terms of paragraph 3, is not intended to be exhaustive. Other rights flowing from the right to possess, occupy, use and enjoy the land may include rights to carry on other activities which are not listed. Should a dispute arise between the holders of native title, and other members of the public or a regulatory authority as to the lawfulness of an activity carried out on the land, or a use to which the land is put, the dispute would fall for resolution by a court of competent jurisdiction.

209 A determination, once made, is intended to declare the existence of native title, both for the past and for the future. It would be an impossible task in a case where the native title rights and interests comprise an exclusive right to possess, occupy, use and enjoy the land, to specify every kind of use or enjoyment that might flow from the existence of that native title. Section 225 cannot have been intended to impose such an impossible task on the Court. To read s 225 in the demanding way for which the State contends is to read it without an understanding of the novel legal and administrative problems involved in the statutory registration of native title: the Waanyi Case at 614-615.

210 In cases where the evidence establishes that the nature and extent of rights and interests in relation to land enjoyed by an indigenous group are less than an exclusive right to possess, occupy, use and enjoy the land, it will be necessary to sufficiently identify them. If the rights held are, for example, limited to rights to fish or hunt in certain areas (rights perhaps limited to certain species of animal), or for a particular purpose, or limited to a right merely to pass over land, then the description of the right might most conveniently be expressed by describing the activity or activities which the right permits. However, as we understand his Honour's reasons for judgment, he held that the rights and interests in relation to land held by the Miriuwung and Gajerrong people were not limited in a way that required a detailed description of permitted activities.

211 It will be necessary to return in due course to paragraph 3 of the determination, if other grounds of appeal which challenge factual findings and the findings as to non-extinguishment succeed.

212 The State also contended that the determination fails to comply with s 225, as it does not provide a means of determining from time to time who are the people who constitute the community or group comprising the common law holders of native title. In our opinion the NTA imposes no such obligation on the Court. Section 225(a) requires the Court to determine "who the persons or each group of persons, holding the common or group rights comprising the native title are". That is a requirement that the persons or group of persons (which includes a community) holding the title, at the time of the determination, be identified. That is necessary for the purposes of enabling an appropriate prescribed body corporate to be nominated and appointed in compliance with ss 56 and 57 of the NTA and the Regulations.

213 However, once the determination is made, and a registered native title body corporate has been appointed to hold the native title in trust, or as representative of the common law holders, the ascertainment of who is a common law holder is a matter to be determined, if necessary, in a Court of competent jurisdiction, by reference to the traditionally based laws and customs of the common law holders named in the determination, as those laws and customs are at the time currently acknowledged and observed (see Mabo [No2] at 59). The occasion for a dispute requiring curial determination should be rare. The need should not arise in dealings between third parties and the registered native title body corporate as that body has the capacity and standing to represent the common law holders from time to time. Such a dispute is more likely to arise between the registered native title body corporate and people claiming to be entitled to be recognised as common law holders. That would be a dispute between people with a close knowledge of the relevant traditional laws and customs.

214 A decision in a particular case as to who is or is not a member of a group or community which is the common law holder of native title is likely to give rise to consideration of the kind discussed in Shaw v Wolf (1998) 163 ALR 205 and Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470.

215 It is also contended that the determination fails to comply with the requirements of s 225, as it does not identify rights of other members of the public arising under the common law. This issue flows from an observation by his Honour (at ALR 638) that:

"No submissions were made on a public right to fish and navigate in tidal waters that may have been part of the common law received in Australia at sovereignty and the effect of that right upon native title in so far as the claim area includes such waters: see Yarmirr v Northern Territory (1998) 156 ALR 370 per Olney J at 430."

216 A Full Court of this Court in the Croker Island Case has since upheld Olney J's finding that the common law recognises a public right to fish and navigate in the tidal waters of the coastal sea of Australia. As the determination stands as a declaration to the whole world of the rights and interests both of native title holders and of others in respect of a determination area, we consider s 225(c) does require the Court to consider whether public rights arising under the common law exist in relation to a claim area, and if so to reflect those rights, in the determination, even if only by a general reference to rights arising under the common law. In the present case, the complaint relating to common law rights would be catered for by an additional item in the Third Schedule namely:

"(j) Other interests held by members of the public arising under the common law."

217 The obligation arising under s 225(c) may be onerous and difficult to meet where the evidence suggests that there is a holder of interests in relation to the land who neither participates in the hearing nor in any other way asserts an entitlement to have those interests recognised in the determination. It is, however, not necessary in this case to determine how that situation is to be managed, although it should be noted that if the determination fails to recognise an existing interest, there may be scope for the holder to have the determination varied pursuant to s 13(1) and (5) of the NTA on the basis that "the interests of justice require the variation".

218 When considering the challenges to factual findings it will be necessary to return to the requirements of s 225(c), in connection with submissions made on the evidence by the State and the Kimberley Land Council, that Malngin and Gija people had interests in the determination area that are not recorded in the determination.

219 Ground 29 of the State's notice of appeal contends that the determination should have included a determination that native title does not exist in the area known as Parry Lagoon. That part of the claim area was excluded from the determination area, because no claim was made to that area by witnesses for the applicants. In our opinion it was open to the trial judge under the NTA simply to exclude a portion of the claim area from the determination area, and to make no determination in respect of it. Whilst s 225 provides that a determination of native title is a "determination whether or not native title exists in relation to a particular area...", it does not mandate that a negative determination must be made in respect of part of an area covered by an application where the evidence fails to satisfactorily disclose the position one way or the other. In our opinion, in these special circumstances, it was open to the trial judge to decide that it was not appropriate, in that respect, to exercise his jurisdiction to make a determination whether native title exists. This was a matter essentially for his Honour's judgment, in the light of the indications in the evidence that the Parry Lagoon area was for the Boogayi people, who apparently had all died out. This posed difficulties, given the in rem character of any determination. Whilst it may have been technically open on the evidence for his Honour to consider whether a negative determination should be made in relation to the Parry Lagoon area, it was also open to the Court to decide that it should decline to exercise that jurisdiction, if the interests of justice required. In approaching this choice, there was a strong discretionary element. In the absence of any suggestion of abuse of process (cf Ernst & Young v Butte Mining Plc [1996] 1 WLR 1605), we are not persuaded that the discretion miscarried.

Challenges to factual findings on native title issues other than extinguishment

220 Senior Counsel for the State, Mr Pullin QC, followed by Mr Pettit, led the attack on the findings of fact which underlie the conclusion that native title exists, and that the Miriuwung and Gajerrong people are common law holders of the native title. The submissions made were supported by other appellants.

221 Broadly stated, the following challenges arise from submissions of some or all of the appellants:

* the findings of the trial judge that each of the applicants had established the necessary continuing connection with the determination area since sovereignty are not supportable on the evidence. In particular:

q the evidence does not establish the requirements identified in Mabo [No 2] by Brennan J (at 70) of "biological descent" and "mutual recognition" (the Territory eschewed this submission);

q the trial judge erred in failing to apply a strict test of patrilineal descent;

q the evidence does not establish that the Miriuwung and Gajerrong people are a single community;

q the evidence does not establish that the named applicants who brought the proceedings in a representative capacity had a continuing connection with the whole of the determination area within the State. It is said that, in respect of some areas, there is no evidence at all of connection since sovereignty, and that in other areas, such as Booroongoong, the lease areas of Crosswalk and Baines River and some areas around Kununurra, the scant evidence of presence on the land over the last few decades by those now claiming native title rights and interests shows no more than random visits to the area insufficient to establish a continuing connection in accordance with indigenous laws and customs;

q on the evidence it should have been found that the flooding of Lake Kununurra in the early 1960s and Lake Argyle in the early 1970s necessarily ended any continuing connection in accordance with the indigenous laws and customs with the flooded areas;

q the evidence does not establish that the Balangarra Peoples were a group with sufficient identity to be recognised as a claimant community, that the applicants represent such a community, or that the Balangarra Peoples had any continuing connection with Booroongoong;

* contrary to the evidence and the requirements of the Act, the determination failed to identify and state the rights and interests in the determination area:

q of the Malngin and Gija estate groups;

q of the Doolboong, Wardenybeng and Goolawarreng peoples; and

* in failing to make findings about, and to give reasons therefore in respect of, such matters as:

q the ancestry of each of the representative applicants;

q membership of particular estate groups and their "country";

q the recognition of each of the representative applicants by other members of communities within the determination area; and

q continuing occupation of those parts of the claim area where the State disputed a continuing connection;

the trial judge erred in law such that the determination should be set aside and either recast by this Court or remitted to the Court below.

Approach of Full Court

222 In the course of presenting these submissions, the State has sought to challenge many specific findings on matters of detail as to the ancestry and connection of applicants and witnesses to parts of the claim area, and for this purpose the Court has been directed to short passages in the evidence of witnesses which appear to contradict particular findings. These aspects of the State's submissions, in effect, invite the court to re-evaluate the mass of evidence received by the trial judge over the course of a very lengthy trial. Such a task would place an impossible burden on an appeal court. Numerous witnesses gave evidence at many sites of importance to the applicants. The trial judge observed (at ALR 497):

"Evidence was usually given in English, but most often it was in broken form, using words of the Miriuwung or Gajerrong languages for names of people, places, objects, animals and for description of cultural matters...

The difficulties courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited. A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances. Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the court observes."

223 His Honour went on to observe that it was apparent to him that for a number of witnesses the adversarial system of trial, and their limited ability to express themselves fluently in English, hindered articulation of their evidence. It is apparent from reading the transcript that on many occasions an Aboriginal witness, when answering questions, sought and obtained assistance from other Aboriginal people present at the time, and often the answers recorded indicate that the witness's response was accompanied by gesture pointing to a feature of the landscape. A reading of the transcript cannot meaningfully convey the response of the witness.

224 Moreover, in many instances we have found when reading the transcript references given in support of the State's submissions, that the interpretation placed on passages by the State is not the only interpretation open, and is often inconsistent with other passages in the evidence of the same witness to be found in nearby pages.

225 In these circumstances, so long as there is evidence which is open to an interpretation that supports the finding of the trial judge, we consider this Court should not interfere with the findings.

226 The written submissions of the State challenging factual findings have been answered in great detail in the written submissions and attached schedules of the applicants. Our own reading of the evidence to which we have been referred, and the applicants' submissions, satisfy us that there was evidence capable of supporting the findings of fact made by the trial judge. We are not persuaded that the trial judge fell into error in any of the ways alleged.

227 The arguments in support of the findings of fact contended for by the State on appeal were put before the trial judge. In our opinion there is no basis for the State's submission that his Honour did not give adequate attention to those submissions. On the contrary, the major ones are expressly addressed in the judgment, where reasons are given for their rejection.

228 The judgment reveals a thorough analysis of evidence from many sources, which led the trial judge to conclude that the present Miriuwung and Gajerrong community is a descendant community identifiable with the Aboriginal people in occupation of the determination area at sovereignty, and that the community has substantially maintained connection with the land by observing, as far as practicable, the traditional laws and customs of its predecessors as presently acknowledged and observed. The conclusions reached by his Honour were not based only on the evidence of primary witnesses, but on evidence from the many sources which he has identified. The evidence of the primary witnesses was assessed against historical evidence of oral histories recorded in the past, and the anthropologists' evidence and genealogies prepared by them.

Requirements of "biological descent" and "mutual recognition"

229 We have earlier set out his Honour's conclusion that the requirement of "biological descent" referred to by Brennan J in Mabo [No 2] at 70 involved a broad understanding of the notion of descent, not the application of a narrow and exclusive test. The State challenges this conclusion as being inconsistent with the requirement stated by Brennan J. Moreover, the State contends that a strict patrilineal descent test should have been applied which would have had the consequence that a number of the applicants would not have established ancestral connection with the native title holders at sovereignty.

230 Brennan J in Mabo [No 2] at 61 addressed the question of inheritance and transmission of native title rights. His Honour said:

"The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants...But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

231 That passage does not suggest that a strict test of "biological descent" is to be applied. The reference to "biological descent" in Brennan J's judgment appears in a summary of conclusions at 70 where his Honour said:

"Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people."

232 When these two passages are read together we think it plain that his Honour was not intending to lay down as an invariable requirement that there be strict "biological descent". Rather, we understand Brennan J to be expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty.

233 Extensive evidence was led concerning the adoption ( or "growing up") of children by members of the Miriuwung and Gajerrong community, and within subgroups of the community. In our opinion, the reference by Brennan J to "biological descent" was not intended to exclude such people from membership of the community. The trial judge did not err in rejecting the State's contention that a narrow and exclusive test of biological descent was required.

234 A requirement of "biological descent" does not mandate that descent be patrilineal. The identity of those presently entitled to enjoy native title rights, is to be ascertained by reference to the traditional laws and customs as currently acknowledged and observed. The evidence in this case is to the effect that under the traditional laws and customs, a whole range of relationships may lead to membership of the community, including "father's country", "father's mother's country", "mother's country", "mother's mother's country", "regent's country", the country of a spouse, and spiritual conception or birth within the area. In the course of argument the State placed reliance upon Ms Kaberry's book Aboriginal Woman; Sacred and Profane as providing evidence of a requirement of patrilineal descent. Ms Kaberry's work lends support to the view that in relation to the enjoyment of particular areas of land by what are now referred to as "estate groups", patrilineal descent was of primary importance. However, Ms Kaberry acknowledged a wide variety of relationships with land, including the right to "walk about" or "live and hunt" in a person's mother's country, a person's mother's mother's country, a person's father's mother's country and the place where the person was born (at p 137). The evidence of the applicants discloses that they identify with traditional Miriuwung or traditional Gajerrong country, and have a primary right to "speak for" particular areas within that country. Persons or families are associated with different areas not simply by patrilineal descent, but also through other relationships, for example through mother or grandmother. Some of the witnesses emphasised the importance of a right to speak for country derived through one's father's father, as against a right derived through one's mother's father or some other line of descent. Thus, in some areas witnesses spoke of people being "in front" and others "being behind", and the possibility was identified of a person being "in front" in one area and in another "being behind", but having influence in more than one area. Differing interests of this kind are explained by the different relationships recognised by the traditional laws and customs under which rights and responsibilities arise.

235 On the evidence, the traditional laws and customs acknowledged and observed by the communities in the determination area at sovereignty, and as currently acknowledged and observed by those recognised amongst themselves as present members of the Miriuwung and Gajerrong community, did not impose a requirement of strict biological descent, let alone patrilineal descent as a prerequisite to membership. The trial judge was plainly correct as a matter of fact to observe that the genealogies admitted into evidence showed "a broad spread of links with ancestors" among the representative claimants and other witnesses who had given evidence in support of the claim. His Honour identified these people at ALR 533-535. That broad spread of links is in our opinion sufficient proof of "biological" connection between the present community and the community in occupation at the time of sovereignty. His Honour's approach was correct in point of law and correct as a matter of fact on the evidence.

236 The State contends that the trial judge upheld a "choice" rule, where a person can choose either father's country or mother's country, and that such a choice rule is in reality evidence of a loss of connection with land, and a complete breakdown in the observance and adherence to traditional laws and customs. That submission is based on the sentence emphasised in the following passage of the judgment: (at ALR 540)

"According to the evidence received in this matter `estate' or `family' subgroups continue to play a part in defining a Miriuwung and Gajerrong community. As implied in the description, an `estate' or `family' subgroup is based on descent but on the evidence received in this case its structure now is flexible, not limited to a `once and for all' delineation by birth under a system of strictly patrilineal or matrilineal descent. A person may be included in such a subgroup by adoption and may opt in, or opt out, by exercise of choice.

There were numerous examples of evidence to that effect in this case, in particular, in evidence given by Rita and Stephanie Boombi, Peter Newry, Button Jones, John Toby and George Dixon.

The evidence established that while there may remain a patrilineal bias or expectation in the organisation of such subgroups, young Aboriginal people may have several choices presented by lines of descent as to which subgoup they will identify themselves. Other grounds of choice may be provided by the locus of conception, birth and by adoption. According to the general tenor of the evidence in this case, any right to claim membership of a subgroup, and thus of the community as a whole, may depend upon the course of life of the child concerned. According to life experience, what degree of association the child establishes with one family group rather than another, and what degree of education the child receives in traditional or religious matters of the relevant family group will determine what election is available or has been made: K Maddock, The Australian Aborigines - A Portrait of their Society, pp 39-41." (Emphasis added).

237 As is plain from the full passage, the choice available is not one freely to be made at the whim of the young person concerned. On the contrary, the choice is dictated by association of a child with a particular family group and his or her upbringing. The choice, when made, will determine with what area of country the person is primarily associated. Even then, the person may be recognised as having rights of a secondary nature in other sub-areas where he or she will be recognised as "being behind". The choice identified by his Honour in the evidence is not suggestive of a loss of connection with the land.

238 On the question of recognition, the State complains that not all people who claimed in evidence to be Miriuwung were in fact recognised as Miriuwung. The examples given by the State in its submissions are contested by the applicants, and there appears to be evidence sufficient to support the conclusions reached by his Honour in respect of those witnesses whom he has treated as recognised members of the present Miriuwung and Gajerrong community. However, even if there were persons who claimed to be members of the community who were not so recognised, that is not a reason for denying the applicants' claim. So long as the Court is satisfied that there remains an identifiable community entitled to enjoy native title rights and interests in accordance with traditional laws and customs as currently acknowledged and observed, the community is entitled to a favourable determination. The status of a person claiming to be a member of the community would be a matter for resolution between the registered native title body corporate and that person at a later stage.

Miriuwung and Gajerrong community

239 The State contends that every relevant witness claimed to be either Miriuwung or Gajerrong, and a great majority of those who claimed to be Miriuwung gave evidence that they had a full array of rights only in an estate area. Those witnesses did not claim that other estate areas were their "country". To that point, the submission appears to be correct, but it does not follow that there is not now a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which members of the community enjoy differing arrays of rights within and outside their particular family or estate country. It follows from what we have earlier said that it is not necessary for each of the named applicants who bring the proceedings in a representative capacity to establish that they possess rights and interests uniformly over the entire determination area. His Honour has addressed in detail the evidence that the Miriuwung community and the Gajerrong community at one time acknowledged and recognised separate territories. His Honour has given reasons for his conclusion that the two communities in more recent times have become regarded (amongst themselves) as a composite community with shared interests. In our opinion that conclusion was in accordance with the evidence.

Continuing connection

240 Early in his reasons for judgment, the trial judge held that the determination area was inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty, operating under elaborate traditions, procedures, laws and customs which connected them with the land. The only inference available from the historical and anthropological evidence is that at sovereignty, the communities whose descendants now comprise the Miriuwung and Gajerrong community, enjoyed exclusive possession, occupation and use of almost the entirety of the determination area. In times before sovereignty, actual physical presence on some areas of the country may have been rare, having regard to the lifestyle and seasonal movements of the indigenous population. Nevertheless, the whole is properly to be regarded as their country as there were no other people exercising similar rights. Their possession, occupation, use and enjoyment of the land is fairly to be treated as "exclusive". Only at Booroongoong, in areas at Goose Hill, and in the south-east portion of the determination area was possession, occupation and use shared with other indigenous communities.

241 It is common ground that, in order to establish entitlement to native title, the applicants are required to establish that connection with the land has been substantially maintained through the acknowledgment and observance, so far as practicable, of traditional laws and customs. With the arrival of European settlement, the ways in which the indigenous people were able to possess, occupy, use and enjoy their rights and interests in the land underwent major change. The indigenous population was substantially reduced in numbers, and land uses introduced by the settlers killed or frightened off much of the resources of the land upon which the indigenous inhabitants depended for their day to day sustenance. In these circumstances, the presence of members of the community on large areas of the determination area understandably diminished. In some areas of concentrated settler activity the reasonable inference is that Aboriginal presence became impracticable, save as people employed in the pastoral enterprises that had moved on to their lands. The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.

242 The evidence as to the relationship of the applicants and their ancestors to the determination area accords with evidence which has frequently been given in other cases, about the nature of the relationship of Aboriginal peoples with their lands. That relationship has been described as a "religious relationship" (Milirrupum v Nabalco Pty Ltd at 167) and as "primarily a spiritual affair" (R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 358).

243 Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people have been hunted off the land, or because their numbers have become so thinned that it is impracticable to visit the area. The connection can be maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs. Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.

244 In Mabo [No 2] at 188 Toohey J said:

"The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society." (footnotes omitted)

That passage must, however, be understood as a general observation regarding the proof required for the recognition of traditional title by the common law. It is not to be understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable or in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers. In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case.

245 In the present case, insofar as the State's submissions maintain that physical occupation of the land is a necessary requirement for continuing connection with the land, those submissions cannot be accepted.

246 The notion of "occupancy" is in any event indefinite. Occupation and use of land does not necessarily involve exclusive possession, or presence on every part of the land, or active use of every part of the land at all times. In Wheat v E Lacon and Co Ltd [1966] UKHL 1; [1966] AC 552 at 578 Lord Denning observed:

"In order to be an `occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be `occupiers'."

247 In Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, and in the Privy Council, [1959] AC 248, it was held that a large expanse of vacant land was "used or occupied" by a hospital which maintained the land in its natural state to provide a barrier against noise, dust and fumes, and opportunities for future expansion. In the Privy Council Lord Denning said at 255:

"An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he has acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds."

248 Ground 7(a) in the State's notice of appeal challenges what is said to be an implicit finding that Miriwung people and their ancestors have occupied and used the northern mud flats, the islands off the coast of Western Australia and the eastern coastal region of the Cambridge Gulf from Goose Hill to a point north of Ningbing Station. It is not correct that there was a finding that "Miriwung people" occupied this area. On the evidence, this area was occupied and used by the ancestors of the Gajerrong community, some of whom in earlier times identified as Doolboong and Wardenybeng. Dodger Carlton and Kim Aldus gave evidence identifying the limits of this country, and there was evidence from these witnesses, supported by anthropological evidence, that justified the finding that this was Gajerrong country, and that present members of the Miriuwung and Gajerrong community had relevantly maintained connection with the country through adherence to their traditional laws and customs.

249 The trial judge discussed the evidence concerning the relationship of the Doolboong, Wardenybeng and Gajerrong groups at ALR 547-550. It is possible that Gajerrong may have been an overall tribal label by which the society in occupation of the northern part of the claim area was identified, even at the time of sovereignty. However that may be, the evidence discussed by his Honour plainly supports the conclusion that as far back as living memory goes, those who identified as members of the three groups mixed together socially and culturally, and exploited resources of the land together. Moreover, descendants of those people now identify with the Miriuwung and Gajerrong community, and that connection is rooted in their acknowledgment and observance of traditional laws and customs.

250 Grounds 7(b), (c), (e) and (f) challenge implicit findings that the requisite connection had been established by the applicants in relation to areas in the Carr Boyd Ranges, to the east and south of Bow River, to the east of Lake Argyle in the area to the north of the Behn River, and around Point Springs. There is however evidence, identified by the applicants in Appendix G to their written submissions, which provides a basis for these findings.

251 Ground 7(d) challenges the finding of relevant continuing connection with the areas now covered by Lake Kununurra and Lake Argyle which were flooded in 1962 and 1972 respectively. It is argued that the inundation of these areas by water has effectively prevented any continuing connection.

252 The inundation of the areas by water makes it impracticable to enjoy native title rights and interests insofar as they involve activities ordinarily carried out by physical presence on the land. However, by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land can be maintained. In our opinion it was open on the evidence for the judge to hold that this was the case in respect of the areas covered by the lakes.

253 Grounds 7(g) and (h) challenge findings that Gajerrong country included the three islands in the north of the determination area, and the finding that any Gajerrong people or their ancestors occupied or used the islands, or the east coast of Cambridge Gulf. The evidence of enjoyment of native title rights and interests in these islands by members of the Doolboong, Wardenybeng and Gajerrong groups was extremely limited. Dodger Carlton gave evidence that his only visit to Booroongoong was by helicopter, just before the native title claim was lodged and that he had never been to Ngarrmorr (Pelican Island). No other primary witness gave evidence of going to the islands. Nevertheless, we are satisfied that there was sufficient evidence to support the findings made by the trial judge. The evidence was not merely confined to "assertions" by Dodger Carlton that the islands belonged to him, as the State contends. The trial judge at ALR 548-549 relied on Ms Kaberry's genealogies, and Associate Professor Christensen's analysis of them, to support the finding that Gajerrong territory included Booroongoong. Grant Ngabidj's oral history to Dr Shaw described Ngarrmorr, and the journey of Aboriginal peoples to it. Grant Ngabidj identified himself as Gajerrong. There was also evidence from Ms Kofod that some twenty years earlier Paddy Carlton and an old lady, Daisy Jandoony, told her of the spiritual connections of Gajerrong people to Booroongoong. In addition Dr Shaw had recorded from Grant Ngabidj Dreaming stories for Booroongoong, and Dodger Carlton also made reference to Dreamings associated with the island and other parts of Gajerrong territory. In the result, Associate Professor Christensen, Professor Maddock and Ms Doohan were ad idem in their expert opinions that there are recognised native title interests in Booroongoong from both sides of the Cambridge Gulf. The fact that there was no evidence led of recent or regular visits to the islands by members of the Miriuwung and Gajerrong community is not fatal. The islands are remote and impracticable for members of the present community to access, except where means of transport is provided by other people. The absence of physical presence, as earlier explained, does not mean that members of the present community have lost or abandoned their connection with the islands. In this respect it is important that Dodger Carlton, in his own right and as regent for Kim, Mark and Brexie Aldus, continues to assert that relationship.

254 Ground 7(i) contends that the evidence given by witnesses claiming to be Miriuwung or Gajerrong in respect of various areas identified in Ground 7, and indeed in the whole determination area, "was evidence of merely random or coincidental visits, and did not amount to occupation of any of those lands". Reference is made to random or coincidental visits in the passage earlier set out from the judgment of Toohey J in Mabo [No 2] at 188, but his Honour was there saying that it would be insufficient to establish title if such visits were truly random "having no connection with or meaning in relation to a society's economic, cultural or religious life". In this case, the evidence given as to visits to the various areas by witnesses and their ancestors, included evidence of visits which were connected with economic, cultural or religious life. The evidence gives a picture of the applicants and their ancestors exercising Aboriginal rights and interests where and when the opportunity arose after European settlement. That evidence includes activities and "foot walking" during holiday time and weekend activities when traditional practices were pursued.

255 Grounds 7(j) and (k), in effect, challenge his Honour's reliance upon the evidence of Ms Kofod that the extent of use of Miriwung and Gajerrong languages in respect of features of the claim area was probative of the length of occupation of the area by ancestors of the Miriuwung and Gajerrong community. In our opinion the evidence was entitled to the weight which his Honour gave to it. Moreover, the impugned passage from the judgment, which appears at ALR 524, makes it clear that his Honour assessed Ms Kofod's evidence in conjunction with ethnographic material relating to widespread Dreaming and spiritual connections with the land for Miriuwung and Gajerrong people. That material was properly to be taken into account.

256 Ground 7(l) complains of an observation which his Honour made to the effect that Gajerrong and Wardenybeng languages could be regarded as mutually understood dialects. That observation was not a finding that led to any particular conclusion, and in any event the observation was supported by the evidence of Dodger Carlton and Professor Maddock.

257 The Crosswalk and Baines River appellants, in relation to the land in King Locations 736 and 744 (the Crosswalk special lease, situated south of the Ord River, and to the west of Kununurra) and King Location 374 (the Baines River New Argyle Downs lease, situated to the south-east of Lake Argyle) adopted submissions of the State to the effect that the evidence did not establish that a connection had been substantially maintained by the descendants of the native title holders at the time of sovereignty. Further, in relation to the King Locations, it is contended that the trial judge did not examine and make findings in relation to evidence that these areas had been the subject of intensive and substantial grazing activity for more than one hundred years. Save as employees of the leaseholders, Aboriginal people had not lived on these properties for many years. The Crosswalk and Baines River appellants contend that proof of continuing connection with the land is necessary in respect of discreet areas within the claim area, such as the King Locations, and as there was no evidence of any kind of continuing physical presence on the King Locations, there should have been findings that native title rights and interests in those areas no longer remain.

258 The New Argyle Downs Station is approximately 720 square kilometres in area. It is part of the original Argyle Downs Station. The manager of the station gave evidence that the soil quality and the pasture quality of the New Argyle Downs Station is very high in comparison with other stations. It has a consistently high level of cattle breeding and fattening conducted on it - some 12,000 head in most years. The manager said that since he has held that position, from 1980, he is aware of only very limited presence in the area of Miriuwung people. Mr Ben Ward, who in evidence claimed a spiritual connection with the area, had asked for and received permission to fish on the edge of Lake Argyle about four times in the last eighteen years but he was not aware of other people coming down to the New Argyle Downs Station. Ms Margaret Moore, a member of the Miriuwung and Gajerrong community, visited the station with her children about once per month, but for the purpose of visiting her husband, an employee on the station. The limited presence of Aboriginal people, as the appellants' submission acknowledges, is consistent with the high level of cattle breeding and fattening conducted on the property.

259 Evidence of connection with this area was given by Mr Jeff Janama, his "son" Mr Ben Ward ("grown up" by Mr Janama), Ms Marjorie Brown and her sister Ms Myrtle Ward, in the presence of many members of their family. Ms Brown and Ms Ward had been born at the Argyle Downs homestead, as had their father Mr Jimmy Ward. These witnesses gave evidence of traditional connections with the land surrounding the old Argyle Downs homestead, and extending on to the land now the subject of the New Argyle Downs lease. It is clear that those members of the present Miriuwung and Gajerrong community, and their ancestors, had a close spiritual, cultural and social connection with the land now comprised in the New Argyle Downs lease. A number of them who are said to speak for this country have since the flooding of Lake Argyle, lived to the north of the area at Alligator Hole and Yardanggarlm. Whilst the evidence of actual presence on the New Argyle Downs lease in recent years is minimal, none of the witnesses for the applicants said that their connections with the land had ceased. In our opinion it was open to his Honour to find on the evidence that a connection had been substantially maintained with this area, so far as it was practicable to do so.

260 The evidence of continuing connection with the Crosswalk special lease is stronger. That property is also an area with high stock carrying capacity, where some 6,000 steers per year are fattened as part of the operation of the Carlton Hill and Ivanhoe stations. In late 1994 the area was included in the declaration of the "Noogoora Burr Quarantine Area" which further restricted human access.

261 The only direct evidence from a primary witness called by the applicants, as to recent physical presence on the land, was given by Mr David Newry, who spoke of entering the land on a number of occasions, without permission, to fish since the mid-1980s. However, there was further evidence from the station manager, Mr Warriner, that he had seen Messrs Ronnie Carlton, Dodger Carlton, Terry Carlton, Warren Dawe and Ms Roberta Dawe in the general area of the Crosswalk lease, driving about, fishing and getting bush tucker. He had seen Mr Ronnie Carlton fishing both in the mud flats area well to the west, and in the Ord River closer to the lease. In his written evidence, Mr Warriner said:

"24. I do not try to stop Aboriginal people from travelling over the station. Occasionally some Aboriginal people ask me if they can enter the station to hunt the wild turkeys that are found on some parts of the leases. I always allow these requests.

...

26. I have never seen any Aboriginals use any part of the reserves lease for any traditional ceremonies.

27. To the best of my knowledge ceremonies occur in Kununurra. I know this because occasionally someone from the Aboriginal community will call me and ask for a `killer' (i.e. a bullock) for a ceremony..."

262 The Crosswalk lease is well inside the determination area, and the trial judge, in determining whether connection had been substantially maintained with that area, was entitled to have regard to Aboriginal activities in the surrounding areas which could support a finding that the community continues to acknowledge and observe traditionally based laws and customs which maintain their connection with the land. The evidence that ceremonies continue to occur in Kununurra, and that members of the present Miriuwung and Gajerrong community who live in the general area continue to gather bush tucker, observe customary bush medicine and other practices, is supportive of the evidence of the primary witnesses that they maintain a connection with the general area within which the Crosswalk lease is situated. We consider it was open to the trial judge to find that the Miriuwung and Gajerrong community had substantially maintained connection with the area of the Crosswalk lease, so far as it was practicable to do so.

263 Submissions were made by the Alligator appellants that connection had not been substantially maintained in respect of discrete allotments within the township and irrigation areas of Kununurra. Some of these areas were small, for example leases and licences in respect of a quarrying operation. In respect of these areas, the nature of the operations conducted by the lessees or licencees probably rendered any access to or physical presence on the land quite impracticable, if not impossible. Moreover, these areas are within close proximity of the places of residence of many members of the present Miriuwung and Gajerrong community and close by place where traditional ceremonies and customs continue to be performed. The implicit findings of the trial judge that connection with the land in those areas has been substantially maintained was open on the evidence, and the grounds of appeal which challenge those findings are not made out.

The Balangarra Peoples

264 The State contends that the trial judge erred in law and in fact in concluding that the Balangarra Peoples were a group with sufficient identity to hold native title. In support of this submission the State refers to evidence of the anthropologist retained by the Balangarra Peoples, Ms Doohan, which explains how the name "Balangarra Peoples" came to be established. It was chosen as an appropriate name in which to bring a claim for native title by Aboriginal people attending a meeting in Wyndham at the Shire Hall in about 1994. The name was considered appropriate as it means "all of the people", or as Ms Doohan says in her anthropological report "one mob together for country". The State points out that witnesses who gave evidence in support of the claim included Ms Mona Williams who said that her people were from the Arrwarri tribe, Mr Victor Martin who said that his grandfather's tribe was called Jangaloo, and Mr Laurie Waina, who was said by Mr Martin to be a Kwini person. On this evidence, the State contends that there are no people who were recognised by other Aborigines as Balangarra Peoples before the Wyndham meeting, and that the historical information reveals that there were at least three tribal groups in the area.

265 The question of the identity of the people bringing the claim in the name of the Balangarra Peoples was canvassed before the trial judge, as was the evidence now relied upon by the State. In finding in favour of the claim by the Balangarra Peoples, his Honour said (at ALR 551):

"It was apparent that Victor Martin acknowledged and observed laws and customs in relation to land by reason of his membership of a wider community. There was limited primary evidence led by the third applicants as to the identity of the group said to hold native title, no doubt because of the comparatively small area of land involved. However the evidence that was led was consistent with Ms Doohan's report in which she identified a group observing separate laws and customs, which group included the third applicants who made the claim as representatives of that group, however the relevant group may have been identified at sovereignty."

266 In our opinion it is not to the point that the name adopted by the third applicants was one of recent origin chosen for the purposes of the proceedings. What is important is that these applicants are the descendant members of an identifiable community which possessed native title rights and interests at the time of sovereignty under traditionally based laws and customs, and that there remains an identifiable community, the members of whom are identified by one another as members of that community, who continue to live under its traditional laws and customs as currently acknowledged and observed. The trial judge so found.

267 Whilst the evidence referred to by the State suggests that the applicants included descendant members from at least three tribal groups, the evidence of those witnesses indicates that they each considered themselves to be Kwini people. Ms Doohan explains in her report that Kwini (or Qwini) is used by the applicants in the sense that they are collectively connected to localities within the country which they claim. Ms Doohan noted that in a 1939 article by A Capell, "Mythology in northern Kimberley, north-west Australia", reporting on field studies in 1938-1939, he says that "the tribes of the Forrest River have no common name, but may be collectively called by the name of the southernmost Gwi:ni" (sic).

268 Ms Doohan gave reasons for concluding that the applicants seeking a determination for the Balangarra Peoples are presently an identifiable community defined by a common body of law and custom which is distinct from that of other Aboriginal groups, by certain practices which she identified, and by common territory regarded as encompassing land which included Booroongoong Island. She was of the opinion that the applicants, and only the applicants, were the descendants of those people who were the original occupiers of the land and waters comprising that territory.

269 In our opinion the trial judge was entitled to act on the expert evidence of Ms Doohan, supported as it was to an extent by the limited primary evidence which he received from witnesses claiming to be members of the community who had recently assumed the Balangarra Peoples identity.

270 On the question of continuing connection by members of the community now identifying as Balangarra Peoples with Booroongoong there was primary evidence that Aboriginal people from the western side of the gulf regarded Booroongoong as part of their country. Ms Kaberry had documented an oral history from Kaalgi, Mr Victor Martin's grandfather, of his travel from the western side of the Gulf in dugout canoes to hunt for flying fox, and to live on the island for a time to escape massacres. Kaalgi reported having Dreaming and ritual connection with the island.

271 It seems that Kaalgi's visits were before 1939. As to more recent occupation, the applicant Mr Vernon Gerrard said that he had visited the island on a boat when he was a small boy (probably before the Second World War) but had not been back since. He reported that another community member had gone to the island to catch turtle when Mr Gerrard was a young man. Mr Laurie Waina gave evidence that he visited the island in the early 1960s but in the course of his employment. Whilst there he found some turtle. That evidence apart, there was no evidence of recent physical presence on the island. However, for reasons already given, the absence of visits to the remote island does not necessarily establish that spiritual and cultural connections have been lost or abandoned. The evidence of the applicants was to the contrary. In our opinion there was evidence upon which the trial judge could base his findings.

Malngin and Gija estates

272 The evidence indicates that groups referred to as Malngin and Gija were recognised by primary witnesses as having interests in country in the south-eastern portion of the determination area, east of Bow River. It seems that a group referred to as Gija occupied land mainly to the south of the determination area, and a group referred to as Malngin occupied land to the east, extending well into the Northern Territory.

273 Insofar as we have been able to familiarise ourselves with the evidence relating to these groups, it does not appear to satisfactorily explain their relationship (if the two are related), or their social structure. The groupings appear to be based on language, rather than on other indicia of a structured community, and it appears to us to be an open interpretation of the evidence that the groups are subgroups of some wider community which recognises the particular usufructuary and other rights claimed by these groups. Indeed, the evidence is open to the interpretation that in the areas in question, such a recognition was accorded by Miriuwung and Gajerrong people in accordance with the traditional laws and customs to which they adhered. This appears to be the consequence of the determination made by the trial judge.

274 The trial judge noted that two members of the group who identified as Gija people, Messrs Joe Lissadell and Chocolate Thomas, were included amongst the first applicants as representatives of the Miriuwung and Gajerrong people. His Honour concluded in a passage to which we have earlier referred that (at ALR 546):

"Having regard to the whole of the evidence, I am satisfied that, historically, Miriuwung people were connected with the southern part of the claim area and that the connection has been maintained.

The evidence also suggests, however, that in respect of that part of the claim area the right to use the area may have been shared and native title also held by Malngin and Gija communities. No determination to that effect can be made in this proceeding under the Act as amended. If communal title is asserted by communities claiming connection with the original Malngin and Gija communities, that may require an application for declaration of a common law right in a court of competent jurisdiction."

275 The determination itself does not refer to native title rights and interests held by Malngin or Gija communities. On the contrary, the determination is that the native title rights and interests in that area are held by the Miriuwung and Gajerrong community.

276 The State contends that the determination is defective in that it fails to recognise the rights and interests of the Malngin or Gija people. The cross appeal by the Kimberley Land Council contends that the determination should be amended so as to provide that the determination area is held by the Miriuwung and Gajerrong people "and in respect of the southern part of the determination area is also held by Malngin and Gija People".

277 It is not entirely clear what his Honour intended in the passage from the judgment that we have cited. For reasons earlier explained, we consider that the Court had jurisdiction to make an order that declared interests of a Malngin and Gija community, or communities, if the community or communities were recognised to exist independently of the Miriuwung and Gajerrong community. His Honour elsewhere in the judgment (at ALR 552) said that the Act gave the Court jurisdiction to deal with the whole dispute as to the existence of native title. It seems that his Honour's conclusion was not based on a lack of jurisdiction in the matter before the Court. His Honour's observation that if community title is asserted by the groups, which he describes as "Malngin and Gija communities", that may require an application for a declaration, suggests that his Honour considered that such a "community title" was that of a subgroup whose rights and interests, following the determination, would lie against the registered native title body corporate, in the same way as claims by estate or family groups, who are indisputably subgroups of the Miriuwung and Gajerrong community, would lie if their rights and interests as members of that community were in doubt. We think this is the way the determination should be interpreted.

278 An alternative interpretation of his Honour's refusal to include reference to the Malngin and Gija communities in the determination, is that in the course of pre-trial procedures, his Honour had directed that the Malngin and Gija groups, if they asserted an entitlement to a determination in their own right, they were to file an application which properly particularised the claim. That procedure was followed by the Kimberley Land Council in respect of the Balangarra Peoples' claim, but not in the case of the Malngin and Gija. The issue was raised again on the first day of the trial. On the third day of the trial, counsel for the Kimberley Land Council handed to his Honour a proposed draft application in the name of Ms Thelma Birch, Mr Frank Chulung, Ms Marjorie Brown and Mr Chocolate Thomas claiming native title rights and interests on behalf of their families in the southern portion of the claim area. Counsel explained to his Honour that the claim for native title would be similar to the claim of the Meriam people in the Murray Islands as it seemed that the customs and traditions which connected the applicants with the land encompassed all groups in the area. That explanation is consistent with the interpretation of the determination which we favour. Although the application was then foreshadowed, no such application was filed.

279 We do not think that the determination made by the trial judge is inconsistent with his observation that the evidence suggests that "the right to use the area may have been shared and native title also held by Malngin and Gija communities". It is consistent with the determination that the Malngin and Gija groups have usufructuary and other rights to use the area as an estate or family subgroup in accordance with the laws acknowledged and customs observed by the wider Miriuwung and Gajerrong community. However, for reasons which appear below, we consider that native title has been wholly extinguished in the southern

portions of the claim area including in the areas where the Malngin and Gija assert native title.

Doolboong, Wardenybeng and Goolawarreng

280 The State also challenges the determination on the ground that it fails to identify and state the rights and interests in the determination area of the Doolboong, Wardenybeng and Goolawarreng peoples. His Honour dealt with evidence that in the past there may have been a shared Miriuwung Goolawarreng use of Goose Hill and that people claiming Doolboong and Wardenybeng connections mixed in the areas to the north. The evidence linked Wardenybeng in times past with the northern portion of the claim area more recently treated as Gajerrong country. However, there is ample evidence to support the conclusions of his Honour that the Doolboong, Wardenybeng and Goolawarreng no longer exist as separate Aboriginal communities, and now identify as part of the wider Miriuwung and Gajerrong community. In any event, if people still identify as Doolboong, Wardenybeng or Goolawarreng in the determination area, they would do so as members of subgroups whose rights and interests are appropriately protected by the determination in its present form. As we have already explained, it was not necessary for his Honour to make findings about the ancestry of each of the representative applicants, about the membership of particular estate groups, or about their continuing connection with particular parts of the determination area. It is sufficient that the determination declare the existence of native title rights and interests in the determination area which are held by the Miriuwung and Gajerrong community. Matters of detail as to the identity and rights of particular members of that community are matters to be determined with the registered native title body corporate.

Extinguishment

281 For convenience we shall deal with the submissions made on the appeal in the order and under the headings adopted by the trial judge.

Pastoral Leases

282 It is appropriate to deal first with the appellants' submissions that the grant of pastoral leases both in the State and the Territory have extinguished all, or alternatively many, of the native title rights and interests claimed by the applicants, as virtually the whole of the claim area at one time or another has been the subject of pastoral leases. The only land not so covered is areas of the coastal flats below the high water mark, and the islands. There is also a question whether a pastoral lease purportedly granted in relation to part of the Goose Hill area, and pastoral leases purportedly granted before the Land Act 1898 (WA), were validly issued, but we put that question aside for the moment.

283 Over the years most areas within the boundaries of the original pastoral leases have been resumed for a variety of purposes, and are now the subject of other statutory grants or interests that require separate consideration later in these reasons. Glen Hill is the only part of the determination area which is still held under a pastoral lease. If a pastoral lease had the effect in law of extinguishing wholly or in part native title in the lands to which it applied, the resumption of part of that land does not have the effect of reviving native title to the extent that it was extinguished.

284 The submissions of the parties have focussed heavily on the decision in Wik which held that pastoral leases issued under Queensland legislation did not necessarily extinguish all native title rights and interests. In Wik neither the legislation nor the pastoral leases contained a reservation in favour of Aboriginal people. The reasons of the members of the High Court consider the historical background which led to the granting of pastoral leases in eastern Australia, and analyse the nature and extent of rights granted to a pastoral lessee. The central question, on which the Court divided, was whether a pastoral lessee obtained a right to exclusive possession. If so, that right would not permit the enjoyment by anyone else of any right or interest in respect of the land and would totally extinguish native title. The majority of the Court held that having regard to the historical setting, the nature of the statutory scheme, the limited purpose of the lease (for pastoral purposes) and the extent of reservations which permitted the entry of Crown servants and others on to the land, the grant of a pastoral lease did not give a right of possession which excluded the Aboriginal people who hitherto had occupied the land. Accordingly, the statutory scheme under which the pastoral leases in question were granted, did not clearly and plainly apply to extinguish native title.

285 In relation to pastoral leases in the State, much attention has been given by the parties in their submissions to expressions used in the legislation, and to the forms of the prescribed pastoral leases. The appellants contended that Wik is distinguishable, and that the history of the legislation relating to pastoral leases in the State plainly and clearly shows that a pastoral lease in the State is truly a "lease" according to common law precepts, and accordingly constitutes a grant of exclusive possession to the pastoral lessee. It is contended that by the adoption of terms and concepts which have technical legal meanings such as "lease", used in contradistinction to "licence", the grant of power to the Governor in early Regulations to alienate land in "fee simple or for any less estate or interest", "sublet", "assign", "underlet", and "demise and lease", combine to indicate that under the legislation in force from time to time pastoral leases have had the character of leases at common law, and in substance constituted a demise of the land itself, carrying with it a legal right to exclusive possession: Glenwood Lumber Co Ltd v Phillips [1904] AC 405; Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 at 222; and Street v Mountford [1985] UKHL 4; [1985] AC 809 at 816, and see also the recent decisions of Bruton v London & Quadrant Housing Trust [1999] UKHL 26; [1999] 3 WLR 150 and KJRR Pty Ltd v Commissioner of State Revenue (1999) 99 ATC 4335 discussed at (1999) 73 ALJ 787. Other grounds of distinction were also suggested. Pastoral leases in the State have been available in undifferentiated form under the relevant legislation for areas of less than 3,000 acres in relatively settled green pasture areas of the south-west to very large areas of semi-arid lands near Eucla and "quite rough" terrain in the Kimberley, and in the State the Land Act 1933 (WA), s 106(2), discussed below, makes specific statutory provision for Aboriginal access. The matters identified by counsel are points of difference between the situation in Queensland, and in the State, but we do not consider they provide grounds that render the reasoning of the High Court in Wik inapplicable to the State legislation.

286 In the present case, however, both in the State and in the Territory, the terms of the early pastoral leases, and more recently the provisions of the legislation under which pastoral leases have been granted, contain reservations in favour of Aboriginal people which, in our opinion, make it clear that as a matter of law the pastoral leases in the claim area did not authorise the total extinguishment of all native title rights and interests. For this reason, this case raises questions which did not arise for the consideration of the High Court in Wik. Here it is necessary to consider the extent, if at all, to which pastoral leases affect native title, short of complete extinguishment.

287 We do not think it is particularly helpful in this case to ask whether a pastoral lease is strictly to be treated as a lease in accordance with common law principles. This is so, as pastoral leases are creatures of statute which were designed to facilitate the early settlement of remote areas of Australia: Wik at 122 per Toohey J, 152 per Gaudron J, and 176-177 per Gummow J. As pastoral leases are creatures of statute, the first duty of the Court is to examine the statute and to see whether, consistently with its terms, other rights and obligations that would apply by the general law attach to the statutory entitlements and duties of the parties or are modified: Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 696 per Kirby P.

288 The application of the inconsistency of incidents test adopted in Wik requires an identification of the ambit of the native title rights upon which the applicants rely, and a comparison of those rights with the statutory rights arising under pastoral leases as well as under the legislation pursuant to which they were granted. In the present case this exercise requires a consideration of the relationship between the rights of the native title holders and the pastoral lessees, rather than between the pastoral lessees and various people other than native title holders in whose favour various reservations in the pastoral lease might operate. The latter exercise assumed importance in Wik because there was no reservation in favour of Aboriginal people which demonstrated that a pastoral lessee did not have exclusive possession.

289 In carrying out this comparison, the ambit of the native title rights and interests found by his Honour to exist at the date of sovereignty, and prior to European contact, comprised rights and interests to possess, occupy, use and enjoy the land to the exclusion of all others within the determination area, which more particularly included the rights and interests specified in paragraph 3 of the determination.

290 We accept that the form of the pastoral lease from time to time prescribed, and the use of terms and concepts which have well known technical common law meanings, are indications in favour of the conclusion that a pastoral lease was to be in the nature of a demise of the land carrying with it all the rights which would normally be enjoyed by a common law lessee, save for the restrictions on those rights imposed by the exceptions, reservation and limitations expressed in the grant. The limitations as to use for a prescribed purpose, namely for pastoral purposes, and reservations which permitted the Crown and others to use parts of the land for certain purposes are not necessarily inconsistent with the lessee otherwise having exclusive possession: Goldsworthy Mining Limited v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 at 212-213. The reservations in this case in favour of Aboriginal people however plainly indicate that in relation to Aboriginal people exercising the reserved rights, a pastoral lessee does not have a right of exclusive possession. The rights granted by pastoral leases, even if they have numerous features of a common law lease, are qualified in favour of Aboriginal people by the reservation and the empowering legislation: see Mabo [No 2] at 89, 110 and Fejo at 128.

291 The question for decision here concerns the meaning and scope of the right expressly reserved in favour of Aboriginal people, and the meaning and scope of the rights of pastoral lessees which are to be ascertained from the substance as well as the form of rights granted by the pastoral lease.

292 It is necessary to consider separately the position under the State and the Territory legislation.

(i) Western Australia

293 In the Native Title Act Case at 433-434 in the joint judgment, it was held that native title in Western Australia was not extinguished by the establishment of the Colony of Western Australia, and that any extinguishment thereafter occurred only parcel by parcel in consequence of the valid exercise of the power to grant interests in some of those parcels, and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aboriginal people to enjoy native title.

294 The early history of pastoral leases in Australia is described by Toohey J in Wik at 108-110 and by Drummond J in Wik Peoples v State of Queensland (1996) 63 FCR 450 at 457 and following. By an Order in Council made on 22 March 1850, pursuant to the Sale of Waste Lands Act 1842 (Imp), pastoral leases were introduced in the Colony of Western Australia in the same manner as in New South Wales. Pastoral leases were introduced to avoid problems of conflict which had arisen in New South Wales out of the assertion of rights by pastoralists, which denied traditional rights of Aboriginal inhabitants. The Order in Council contained the following official directive:

"Nothing contained in any pastoral lease shall prevent aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner..." (WA Government Gazette 17 December 1850).

295 This term from the Order in Council was incorporated as an exception and reservation into the Land Regulations 1851 (WA) later proclaimed in Western Australia, and into the Land Regulations proclaimed in 1860, 1864, and 1872. In the Land Regulations proclaimed in 1878 the exception and reservation was amended so as to apply to "any unenclosed or enclosed but otherwise unimproved part of the demised Premises".

296 The first pastoral leases in the claim area were granted under the Land Regulations 1882 (WA). These pastoral leases:

* conferred no right to soil or timber (r 82);

* were subject to reservations of (r 85);

o the right to lay out public roads;

o the right to take indigenous produce, rock or soil for public purposes;

o the right to cut and remove timber;

o the right to sell any mineral land;

o the right to sell any portion of the pastoral lease and exercise a right of immediate entry;

o the right to depasture stock on "unenclosed or enclosed but otherwise unimproved land";

o the right of any person to pass over "such unenclosed or enclosed but otherwise unimproved land, with or without horses, stock or vehicles on all necessary occasions"; and

* were subject to a power to immediately determine the pastoral lease over any land which may be reserved, sold or otherwise disposed of under the Regulations, compensation being provided only for improvements (rr 79 and 81).

297 Leases were issued in the form prescribed in the Schedule No 11, which expressly declared the above exceptions and reservations and in addition declared a right of entry for mineral exploration and provided:

"Except and always reserved to Us, Our Heirs and Successors...full right to the Aboriginal natives of the said Colony at all times to enter upon any unenclosed or enclosed but otherwise unimproved part of the said demised Premises for the purpose of seeking their subsistence therefrom in their accustomed manner."

298 An identical exception and reservation in favour of Aboriginal people was included in the form of pastoral lease set out in the Land Regulations 1887 (WA) which replaced the Land Regulations 1882 in respect of pastoral leases issued in the Kimberley Division of the colony. Responsible self-government commenced in the colony in 1890. The Land Act 1898 (WA) in ss 106 and 107 maintained the exceptions and reservations, upon the grant of a pastoral lease which had been contained in the 1882 Regulations. Section 92 of the Act provided that all pastoral leases were to be issued in the form set out in Schedule No 24, and that form repeated the reservation and exception in favour of Aboriginal people set out in the Schedule No 11 to the Land Regulations 1882.

299 The Land Act 1933 consolidated and amended the Land Act 1898. The terms and conditions of pastoral leases remained largely unchanged save for one important omission. The form of the pastoral lease, contained in the Nineteenth Schedule, did not include a reservation in respect of an Aboriginal right of access. However, by the Land Act Amendment Act 1934 (WA), s 106(2) was inserted. As the State contends that the Land Act 1933, as amended by the insertion of s 106(2), had the effect of extinguishing native title, and substituting a statutory right of Aboriginal access, it is necessary to consider s 106 in its entirety. The section appears in Part VI of the Land Act 1933 which deals with pastoral leases. Section 90 provides that any Crown lands within the State which are not withdrawn from selection for pastoral purposes, and which are not required to be reserved, may be leased for pastoral purposes at the rent, and subject to the conditions thereinafter prescribed. Section 96 makes provision for pastoral leases in the Kimberley Division. Section 97 deals with the position and boundaries of leases. Sections 98 to 101 deal with the term, rent, and review of assessment of rent. Section 102 requires that every pastoral lease shall be granted on condition that improvements as prescribed be effected by the lessee. Section 103 provides for the forfeiture of pastoral leases, if the lease is not stocked in a prescribed manner. Section 104 provides for the re-appraisement of rent in certain circumstances. Section 105 provides that a pastoral lease gives no right to soil, and a very restricted right to timber, and s 107 requires a pastoral lessee desiring to ringbark trees to obtain prior permission. The remaining sections of Part VI make provision for withdrawal or resumption of land, compensation for improvements, and the surrender and transfer of leases. That is the setting within which s 106 appears. The marginal note for the section is "Reservations". The section as enacted in the Land Act 1933 read:

"106. The right is reserved to the Minister--

(a) to lay out, declare open, and make, either permanently or for temporary use, public roads through any land held under pastoral lease:

(b) to take away any indigenous produce, rock, soil, or other material; and to fell, cut, and remove all or any timber, sandalwood, or other woods which may be required for public purposes, from any such land:

(c) to issue licenses to any persons to cut, remove, and cart away any timber, sandalwood, or other woods or to quarry, dig for, and cart away any rock, soil, or other material growing or being upon any such land;

(d) to sell, lease, or otherwise dispose of any mineral land comprised within the limits of any pastoral lease:

(e) to sell, lease, or otherwise dispose of any other portion of such lease subject to the provisions of this Act, at any time, and with a right of immediate entry, but subject to section one hundred and eight; and

(f) to depasture any horses or cattle in the employ of the Government while working on or passing over the said land, and to water them at any natural sources there, together with a right for any person to pass over any such land which may be unenclosed, or enclosed but otherwise unimproved, with or without horses, stock, or vehicles, on all necessary occasions."

300 Those provisions were renumbered s 106(1) by the 1934 amendment, and s 106(2) provided:

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

301 It is accepted by the parties that no pastoral leases were issued under the Land Act 1933 in respect of land in the claim area before the 1934 amendment came into operation.

302 Section 106(2) has not been amended since its insertion, although a number of the reservations in s 106(1) have been repealed.

303 Pastoral leases have always been deemed "Crown land" for the purposes of land and resource management: see the Land Act 1898 (WA) s 3; the Land Act 1933 (WA) s 3; the Mining Act 1904 (WA) s 3; the Mining Act 1978 (WA) s 8; the Petroleum Act 1936 (WA) s 4; the Petroleum Act 1967 (WA) s 5; the Land Drainage Act 1925 (WA) s 6; the Wildlife Conservation Act 1950 (WA) s 6; and the Conservation and Land Management Act 1984 (WA) s 11.

304 The duration of pastoral leases has been for long periods. Under the Land Regulations 1880 leases could be granted for up to thirteen years, under the Land Regulations 1887, up to twenty years, and under the Land Act 1898 up to thirty years. Under the Land Act 1933 pastoral leases could be granted up to fifty years. The areas covered by pastoral leases in the Kimberley Division have covered large areas, varying from 10,000 to about 993,364 acres. Many exceeded 250,000 acres.

305 In summary, pastoral leases under the Land Regulations of 1882 and 1887 were granted on conditions that expressly excepted and reserved to Aboriginal people a right to enter upon "any unenclosed or enclosed but otherwise unimproved" parts of the lease "for the purpose of seeking their subsistence therefrom in their accustomed manner", and from 1934 the legislation provided a right for them at all times to enter upon "unenclosed and unimproved parts" of the lease "to seek their sustenance in their accustomed manner".

306 We do not accept the contention of the State that s 106(2) had the effect of confirming a total extinguishment of native title and creating a new statutory right of Aboriginal access. In pastoral leases granted under the Land Regulations, the prescribed term plainly operated as an exception, that is a keeping back of part of the rights granted to the pastoral lessees, and did not create a new right in favour of Aboriginal people: see Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177 at 194 per Windeyer J; Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd [1925] HCA 38; (1925) 36 CLR 340 at 377 per Higgins J; and Wik at 201 per Gummow J. By its terms, s 106(2) is not expressed to be an exception or reservation. However, s 106(1) and (2) are preceded by the marginal note "Reservations" and each of the paragraphs in s 106(1) plainly operates as a reservation as that expression is understood in Australia. Moreover, s 106 is situated between ss 105 and 107 each of which express limitations upon the extent of the rights granted to a pastoral lessee. When s 106(2) is read in context, we think it is plain that it was intended to operate as a reservation in respect of pastoral leases issued after it was inserted into the Land Act 1933. However, s 106(2) is expressed in terms that go further than merely preserving an existing native title right of access to seek sustenance. The subsection elevates that right to a statutory right, and, moreover extends the scope of that right to all "Aboriginal natives". That it does so does not carry the implication that the pre-existing native title right is abolished.

307 Being cast in the wide terms in which it is, s 106(2) caters for the situation where Aboriginal people from other areas obtain permission from the native title holders to enter their country, an event which the evidence establishes was not uncommon in relation to major ceremonies. This construction of s 106(2) is consistent with the following observations of Brennan J in Mabo[No2] at 66-67:

"Nor is native title impaired by a declaration that land is reserved not merely for use by the indigenous inhabitants of the land but `for use of Aboriginal Inhabitants of the State' generally. If the creation of a reserve of land for Aboriginal Inhabitants of the State who have no other rights or interest in that land confers a right to use that land, the right of user is necessarily subordinate to the right of user consisting in legal rights and interests conferred by native title. Of course, a native title which confers a mere usufruct may leave room for other persons to use the land either contemporaneously or from time to time." (footnotes omitted)

308 Counsel for the State contended that the trial judge erred in not having regard to statements of relevant Ministers during the debate on the Land Act Amendment Act 1934 concerning the clause that became s 106(2). It was said that these speeches confirm that Parliament intended that a pastoral lease was intended to confer a leasehold estate, not some new form of interest in land sui generis. As we have already said we do not think that the issues relating to pastoral leases in the present case fall to be determined by characterising a pastoral lease as a "lease" in the strict common law sense, or as a statutory creation of its own kind. Rather, it is necessary to ascertain the meaning and effect of s 106(2) itself. We consider the Parliamentary debate confirms the construction that we have placed on that provision. In the Legislative Council, the Honorary Minister responsible said:

"Originally, in fact since 1851, natives have had the right to enter upon any enclosed or unenclosed but otherwise unimproved parts of pastoral leases. That stipulation was for many, many years included in the pastoral leases which were granted. When the consolidating measure was before Parliament, that condition was deleted from the Bill. As a result, it became necessary for the condition to be excised from any new leases gramted. As a consequence, the aboriginal had no right whatever in regard to large areas of Western Australia...

...All that the Aborigines Department at present desire is that the natives shall have the same right as they have had since, at least, the year 1851...

...at present I say we have no right to take away from the natives something which they have enjoyed since the year 1851." (Hansard 6 December 1934, page 1808).

309 We agree with the trial judge that the reference to seeking subsistence, or sustenance, from the land in an accustomed manner makes it plain that in the exception and reservation clauses, and in s 106(2) of the Land Act 1933, the Crown acknowledged an existing right of access to land over which the Crown had granted rights to depasture stock, that is, to pursue "pastoral purposes". His Honour held that such an acknowledgment was inconsistent with any intention to wholly extinguish native title. On his Honour's view of the law, that there was no concept of partial extinguishment, it was unnecessary to consider whether pastoral leases extinguished some, but not all, native title rights and interests. His Honour considered whether the evidence disclosed that any pastoral lessee by actual use of the land in a manner permanently inconsistent with the continued existence of native title had brought about total extinguishment in relation to particular areas. His Honour said that of the improvements contemplated by the Land Acts, only dwelling houses, and possibly reservoirs and dams, would be of sufficient permanence to indicate intention to extinguish native title by adverse dominion. However, there was no evidence to establish permanent improvements of that kind.

310 We are unable to agree that the grant of pastoral leases has caused no extinguishment. For reasons earlier given, we consider that native title can at law be partially extinguished to the extent that inconsistent rights have been created by a statutory grant. Whilst the law which has authorised the creation of pastoral leases has undergone amendment and change over the years, the substantive rights granted to a pastoral lessee have remained substantially the same. The pastoral lessee is granted the right to use the land for "pastoral purposes", an expression which is given further meaning by the definition of a "pastoral lease" as a lease of an area to any person for grazing purposes: see the Land Regulations 1882 r 2; the Land Regulations 1887 r 2; the Land Act 1898 s 3; and the Land Act 1933 s 3. The pastoral lessee has the right to use and occupy the land for that purpose subject only to the conditions, exceptions and reservations contained in the pastoral lease. The pastoral leases were for substantial terms not for finite short periods. The pastoral leases imposed minimum requirements as to stocking and improvements, but contemplated, and by implication authorised, that the minimum requirements could be exceeded. Where stock numbers were exceeded, rent adjustments could follow: Land Regulations 1887 r 73; Land Act 1898 s 100; and Land Act 1933 s 101. In the case of improvements, provision was made for compensation in the event of withdrawal or resumption of land, provided the same were made bona fide for the purpose of improving the land or increasing the carrying capacity: Land Regulations 1882 rr 79 and 81; Land Regulations 1887 r 105; Land Act 1898 s 145; and Land Act 1933 s 140. The improvements envisaged by these provisions were extensive in kind and included fencing.

311 Native title rights may co-exist with other interests. In Mabo [No 2] Brennan CJ said at 67 that "a mere usufruct may leave room for other persons to use the land either contemporaneously or from time to time". And in Wik, Gummow J at 169, referring to the exercise of traditional usufructuary rights, said that "this may leave room for others to use the land either concurrently or from time to time".

312 The pastoral leases envisaged and authorised activities which, depending on their intensity, had the potential to directly clash with the pursuit by Aboriginal people of their traditional activities on the land. Notwithstanding that potential, the grants expressly recognised the coexistence, to an extent, of the activities both of the pastoral lessees and the Aboriginal people. The reservation in favour of the Aboriginal people contained in the pastoral leases in question in this case, granted before 1933, reserved to them the full right to enter upon any unenclosed or enclosed but otherwise unimproved part of the land for the purpose of seeking their subsistence in their accustomed manner. To the extent that the grants brought about a situation where the Aboriginal people on the one hand, and pastoral lessees on the other, had coexisting rights to be present on the land for their respective purposes, the law required that those rights be exercised by each party reasonably, having regard to the interests of the other. Each was entitled to exercise their respective rights, subject to the requirement of reasonable user: see Boyle v Holcroft [1905] 1 IR 245; Peech v Best [1931] 1 KB 1; and Mason v Clarke [1955] AC 778. These cases concern the interrelationship of farming and sporting rights, but provide useful guidance on the principles of reasonable use.

313 In Boyle v Holcroft the plaintiff was the grantee of exclusive fishing rights running through a farm of which the defendant was the tenant. The defendant erected a barbed wire paling along the bank of the river which interfered with fishing. Barton J said at 249-250:

"On behalf of the defendant it is said that the river is shallow, and the river-bank broken in some places; and that this paling was put up for the purpose of preventing escape and trespass of cattle. If this paling was reasonably necessary, and was erected bona fide for a purpose of that kind, the defendant would, in my opinion, be in a very strong position. The right of fishing must be exercised in view of the occupying tenant's right to use all proper and reasonable means which may be necessary from time to time for the management and cultivation of his farm. In cases of this kind, two rights in eodem solo have to be reconciled - the tenant's right to manage and cultivate his farm in all proper and reasonable ways consistent with the conditions of his tenancy, and the landlord's right of fishing and of entering upon the lands for that purpose...I take it that, as a general rule, so long as the tenant is bona fide and reasonably managing and using the lands, the owner of the fishing rights must be content to exercise his right upon the lands in the condition in which they may happen to be from time to time. On the other hand, the tenant must not, under cover of farm user or management, unreasonably or mala fide cause or maintain an obstruction to the exercise of the right of fishing, and may be restrained by injunction from doing so."

314 In Peech v Best the plaintiff was the grantee of shooting rights, a profit à prendre. Scrutton LJ said at 14:

"...both landlord and sporting tenant must use their land reasonably having regard to the interest of the other, and will be liable for damage caused to the other by extraordinary, non-natural, or unreasonable action."

This passage was approved by the House of Lords in Mason v Clarke at 796.

315 Further guidance on the principles of reasonable user may be found in cases which concern the use of land by adjoining owners and in the law of nuisance: see Southwark London Borough Council v Tanner and Others [1999] UKHL 40; [1999] 3 WLR 939 at 954-955; Jones v Pritchard [1908] 1 Ch 630 at 638; and Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966 at 980. See also Nickells v Melbourne Corporation [1938] HCA 14; (1938) 59 CLR 219 at 225.

316 The immediate consequence of the grant of these coexisting rights, in the areas where coexisting rights existed, was to destroy the exclusive nature of the native title right to possess, occupy, use and enjoy the land. Henceforth the right was one to be shared, not only with the pastoralist in pursuit of the pastoralists' right to use the land for grazing purposes, but with other people who come on to the land pursuant to other reserved rights. Moreover, insofar as the native title included rights to make decisions regarding the use and enjoyment of the land and access to the land, that exclusivity was destroyed. Any right to make decisions about the use and enjoyment of the land was also destroyed to the extent that it was inconsistent with the grant to a pastoral lessee of the right to make decisions about the use of the land for pastoral purposes. There could be no native title right to control access by the pastoral lessee, and those to whom the pastoral lessee granted permission to enter. In relation to people entering upon the land for one of the reserved purposes, actual entry would constitute a use inconsistent with the original native title, and to that extent native title would be regulated, though not necessarily extinguished. Whether extinguishment occurred would depend on the nature and degree of use undertaken pursuant to the right of entry.

317 The scope of the rights reserved to the Aboriginal people in grants made prior to 1933 was limited to unenclosed or enclosed but otherwise unimproved land. It will be noted that a similar reservation in respect of the right of any person to pass over the land was contained within the general reservations which now find expression in s 106(1)(f) of the Land Act 1933. The exception and reservation by its terms did not reserve to the Aboriginal people any right to enter upon enclosed and improved parts of the land. As a matter of construction we consider that pastoral leases granted in the terms prescribed prior to 1933 plainly and clearly intended that in respect of enclosed and improved areas the rights both of native title holders and of any other people to enter or pass over that part of the land (otherwise than in exercise of one of the other reserved rights) were abrogated.

318 Under the reservation in favour of Aboriginal people enacted in 1934 by s 106(2) of the Land Act 1933, the rights of Aboriginal people in relation to pastoral leases were further restricted. Whereas s 106(1)(f) continued to provide a right to any person to pass over unenclosed or enclosed but otherwise unimproved land with or without horses, stock or vehicles on all necessary occasions, the right of Aboriginal people at any time to enter upon parts of the land to seek their sustenance in their accustomed manner was restricted to "unenclosed and unimproved parts of the land".

319 Whilst on the one hand the reservations in favour of Aboriginal people express a clear intention that the grant of a pastoral lease does not necessarily extinguish native title, on the other hand, the terms of the reservations delineate both in terms of purpose and geographical location the extent of the rights which are not adversely affected by the grant of the pastoral lease. Correspondingly, activities of Aboriginal people that do not come within the limitations as to purpose and geographical location in respect of which their rights are reserved, are by clear implication not permitted as of right, as they are inconsistent with the rights of possession and use otherwise granted to pastoral leases.

320 The question then arises as to the meaning and scope of the expressions "unenclosed or enclosed but otherwise unimproved", and "unenclosed and unimproved". These are expressions which arise under the Land Regulations and the Land Act 1933 respectively, and as such have legal meanings in that context.

321 The State contends that "enclosed" means fenced. The applicants challenge this interpretation. They point to the definition of "fence" in the Land Act 1898 and the Land Act 1933. Under those definitions "fence" means any substantial fence, not being a brush fence, proved to the satisfaction of the Minister to be sufficient to resist the trespass of great and small stock, including sheep, but not including pigs or goats. The expression "great" stock includes cattle. The applicants argue that in this sense fences are intended to control the movement of stock, not people. That may be so, but we do not think it assists the applicants. To "enclose" means "(1) to shut in: close in on all sides; (2) to surround as with a fence or wall: to enclose land..." (The Macquarie Concise Dictionary, 3 ed). The meaning of "enclosed" is to be ascertained having regard both to the reservation in favour of Aborigines, and the reservation in respect of the right of any person to pass over unenclosed, or enclosed but otherwise unimproved land with or without horses, stock or vehicles (the reservation now contained in s 106(1)(f)). In that reservation we think it is clear that "unenclosed" means unfenced so that entry with or without horses, stock or vehicles is unrestricted, and "enclosed" means "fenced".

322 Assistance in ascertaining the meaning of "unimproved" is given by provisions for the valuation of "improvements" contained within the Regulations and the Land Acts. In particular, r 105 in the Land Regulations 1887 provides that no payment or valuation shall be made pursuant to the Regulations in respect of any improvements, nor shall any improvements be considered pursuant to the Regulations:

"... unless the same shall consist of wells of fresh water, reservoirs, tanks or dams of permanent character and available for the use of stock;...or of fences, sheds and buildings erected for farm or shearing and station purposes, not being dwelling houses (except where such dwelling houses exist upon a pastoral lease) or of cultivation, subdivision fences, clearing, grubbing, drainage, ringbarking...or any improvement for maintaining or improving the agricultural or pastoral capabilities of the land".

A similar definition was contained in the Land Act 1898, s 145 and in the Land Act 1933, s 140. However, after 1963 a dwelling house on a pastoral lease was not considered an improvement for the purposes of the Land Act 1933: see Land Act Amendment Act 1963 (WA), s 24.

323 Whilst these provisions list items that will be treated as improvements for the purposes of valuation and payment, for example on the resumption or withdrawal of land from a pastoral lease, we do not think that the list exhaustively defines improvements. The description of improvements in s 140 and in the earlier versions applies for the specific purpose stated, namely valuation and payment under the Regulations. In our opinion in the reservations, the word "improvement" carries its ordinary English meaning, namely "a bringing into a more valuable or desirable condition, as of land; a making or becoming better: a betterment". (The Macquarie Dictionary 3 ed). Items of the kind listed in s 140 will constitute improvements but other items or work may also constitute an improvement.

324 However, to identify the presence of an improvement, or several improvements dotted about a large area of land, does not necessarily justify the conclusion that the whole of the land is improved land. The nature of the improvement, and matters of degree will arise. In the case of a well, dam or watering point an area close around the improvement would reasonably be considered "improved land", but land, say one kilometre away, may not fall within that description. Questions of this kind can only be answered case by case as they arise, and do not lend themselves for blanket determination on an application for determination of native title over a very large area of land.

325 In our opinion it would be sufficient for the purposes of making a determination of native title for the Court to determine that an Aboriginal group claiming native title in respect of specified land holds a full right of entry in accordance with whichever of the reserved rights of entry is appropriate to the case, without entering upon the further task of defining geographically those portions of the land which are unenclosed, enclosed but unimproved, or unenclosed and unimproved. In the event of a dispute later arising as to the rights of the native title holders in relation to a particular area of land, any court of competent jurisdiction could determine whether that land came within the reservation.

326 In the present case, however, evidence was led as to the situation in parts of the determination area, such that this factual issue can be determined in some areas, but, as we understand the evidence, it did not extend to the whole of the determination area. The evidence included a substantial statement of agreed facts, exhibit 55, Schedules 1A to 1F of which specify agreed "enclosures" in relation to the Argyle Downs Station, pastoral lease 3114/738; the Ivanhoe Station, pastoral lease 3114/640; the Carlton Hill Station, pastoral lease 3114/1176; the Glen Hill Station, pastoral lease 3114/425; the Lissadell Station, pastoral lease 3114/1001; and the Texas Downs Station, pastoral lease 3114/995. (There were no agreed items on the Goose Hill Station). The agreement is that in respect of each of the "enclosures" they existed prior to 1972 and were located as shown in the maps attached to the statement of agreed facts. Parts of the areas on the Argyle Downs pastoral lease have since been inundated by Lake Argyle. These schedules of agreed "enclosures" are based on a report on pastoral improvements prepared for the purposes of the proceedings by J W Holmes in November 1996. Notwithstanding the applicants' submissions to the contrary, a perusal of the report satisfies us that the enclosed areas were sufficiently fenced or otherwise contained by natural boundaries to be "enclosed" within the meaning of s 106(2) and the earlier reservations. In respect of those agreed enclosures, we think the evidence justifies this Court making such a determination. However, in respect of other areas within those Stations, and on the Goose Hill Station, and elsewhere, there was no agreement about the extent of the enclosures. In the absence of a finding by the trial judge about areas where there was no agreement, this Court is in no position to find the facts.

327 As we have noted, the pastoral leases envisage and authorise that the lessee will carry out improvements, including fencing. Quite apart from any limitation on the rights of Aboriginal people arising from the express terms of s 106(2) and the earlier reservations in their favour, improvements effected by a pastoral lessee, depending on their nature, may bring about an operational inconsistency which has the effect of wholly or partially extinguishing the native title rights which survived the grant of the pastoral lease. In the present case, however, effect must also be given to the consequence which improvements, in particular fencing, have in the application of the express terms of the reservations in the pastoral leases and s 106(2).

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

329 In summary, we consider that in Western Australia, the grant of a pastoral lease had the immediate effect of extinguishing the exclusivity of the native title right to possess, occupy, use and enjoy the subject land. However, as pastoral leases were granted subject to a reservation in favour of Aboriginal people, to the extent permitted by the terms of the relevant reservation, Aboriginal people retained the full right to enter upon the land for the purpose of seeking their sustenance therefrom in their accustomed manner. In areas where that reservation applied, the Aboriginal people and the pastoral lessee had rights which coexisted, and the rights of both parties were subject to the requirement of reasonable user. The reservations did not except native title rights to make decisions about the use and enjoyment of the land, and such rights were also extinguished to the extent of the grant to the pastoral lessee of the right to make decisions about the use of the land for pastoral purposes, including as to the location and extent of improvement otherwise permitted by law to be made. However, the reserved right of access ceased to exist under pastoral leases issued before 1933 when the land became enclosed and improved, and also under pastoral leases issued after 1934 when the land became enclosed or improved. Thereafter the activities of the Aboriginal people could no longer come within the limitations as to purpose and geographical location expressed in the applicable reservation. In areas where the reservation ceased to apply native title was wholly extinguished.

330 As the trial judge concluded that the pastoral leases had not brought about extinguishment, it was unnecessary for him to consider submissions by the applicants that the State had not proved that valid leases were issued under the Land Regulations 1882 and the Land Regulations 1887 in respect of pastoral leases issued prior to 1898. On the view that we take of the matter, there is no need now for us to consider that argument because even if they were not validly issued at or before the end of the terms of those leases, later pastoral leases subject to the reservations then required by law were issued encompassing the same areas (except in respect of lands that had been resumed in the meantime and reserved by the Crown for specific purposes - which are considered later in these reasons). Even if the purported grants of pastoral leases prior to 1898 did not affect native title because they were invalid, the subsequent leases, in our view, have done so. According to the records of the State the claim area was blanketed by some forty-five pastoral leases granted under the Land Regulations 1882, and thirty-eight granted under the Land Regulations 1887. Over time these were replaced by forty-two pastoral leases granted under the Land Act 1898. The pastoral leases renewed under the Land Act 1933 covered larger areas and were fewer in number. It seems a series of leases covering the area were issued for terms of up to about fifty years in the mid-1930's, and then consolidated and reissued between 1966 and 1974 for terms expiring on 30 June 2015, save however for areas that in the meantime had been surrendered or withdrawn and become reserved lands or the subject of some other grant.

331 Presently Glen Hill, the only continuing pastoral lease, is held by the Aboriginal Lands Trust, and is occupied by an Aboriginal Corporation, the Mandangala Corporation. On the evidence the Glen Hill pastoral lease is held over the area by the Aboriginal Lands Trust in trust for people who are members of the Miriuwung and Gajerrong community including John Toby who is a named applicant. In these circumstances, s 47(2) of the NTA provides that any extinguishment of the native title rights and interests by any of the following acts must be disregarded:

"(a) the grant of the lease itself;

(b) the creation of any other interest itself in relation to the area;

(c) the doing of any act under the lease or by virtue of holding the interest."

In written submissions to this Court the applicants sought to rely on s 47(2)(b). The State, however, contended that the applicants should not be permitted to do so because they had failed to give particulars before trial about the possible application of s 47 to Glen Hill. But the evidence at trial is to the effect we have stated, and s 47, being a requirement of the NTA, must be applied. In our opinion, the determination should reflect the operation of s 47 in relation to the Glen Hill area, with the consequence that native title in that area is not extinguished.

(ii) Northern Territory

332 The reservations in favour of Aboriginal people in legislation applying from time to time in the Territory, have been expressed in terms which more widely cover traditional Aboriginal activities on land than the reservations expressed in State legislation. In the result, although we conclude that pastoral leases granted in respect of the Territory portion of the determination area have also brought about partial extinguishment by abrogating native title rights to exclusively possess, occupy, use and enjoy the land, we consider that there has not been total extinguishment in respect of any area.

333 In 1825 the Territory claim area was included in the colony of New South Wales by Letters Patent which extended the boundary of New South Wales west to 129° East longitude. In 1863 the Territory was separated by Imperial Order from New South Wales, and annexed to South Australia. It remained under the control of South Australia until 1911 when the Territory was surrendered to the Commonwealth. (See the Croker Island Case at 449). It remained under Commonwealth control until self-government was granted in 1978.

334 There have been in all, five pastoral leases granted over the claim area in the Territory. Most of the area was subject to a pastoral lease granted in 1893, and the balance of the area was subject to another pastoral lease granted in 1897. These two leases were granted under the Northern Territory Crown Lands Act 1890 (SA). The leases were in statutory form under Regulations made under the Act which in substantial respects were similar to the pastoral leases issued by the State. Under s 6 of the Act, the Governor was empowered to alienate Crown lands. Section 60 required pastoral leases to contain covenants to stock the leased land, and to contain prescribed terms. Regulation 39 prescribed that pastoral leases shall contain a condition for the protection of Aborigines. The leases were for terms of forty-two years, and were granted "for pastoral purposes". They contained reservations in respect of timber and minerals, for resumption, and for entry by the Minister and any person authorised by him to lay roads, and for access by any person to use roads and tracks to cross the land, and to do so with travelling stock where that right was conferred by any Act or Regulation. The leases contained covenants to pay rent, rates and taxes, to insure, to keep in good repair, and to destroy vermin and noxious weeds. Of present importance, each lease contained a reservation in the following terms:

"...Excepting out of this lease to Aboriginal Inhabitants of the Province and their descendants during the continuance of this lease full and free right of ingress egress and regress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made...".

335 In 1929 a new lease was granted in exchange for the two earlier leases, which covered the entire claim area within the Territory. The new lease was granted pursuant to the Crown Lands Ordinance 1927 (Cth). In accordance with s 34(b) of the Ordinance the pastoral lease contained a reservation in favour of Aboriginal Inhabitants of North Australia. The reservation in the lease was in terms that are not materially different from the reservation stipulated in the earlier leases. The lease was granted for a term of almost forty years. Before it expired it was re-executed on 30 July 1952, and in 1958 it was exchanged for a new lease granted under the Crown Lands Ordinance 1931 (Cth). Both leases covered the entire claim area within the Territory, and indeed a much wider area beyond the boundaries of the claim. The new lease was stated to be for a period of fifty years, but in 1979 was exchanged for another lease granted under the Crown Lands Ordinance 1931, expressed to be for a period of thirty years. This lease (the "Newry lease") also covered the entire claim area within the Territory.

336 The lease granted in 1958 included a reservation in favour of Aboriginal people similar to that contained in the earlier leases. The Newry lease however, issued in 1979, following the 1978 amendments to the Crown Lands Ordinance 1931-1978, expressed the terms of the reservation in favour of Aboriginal people differently. Its covenants and reservations were otherwise similar. Section 24(2) provided:

"(2) ...in any lease under this Ordinance a reservation in favour of the Aboriginal inhabitants of the Northern Territory shall be read as a reservation permitting the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who in accordance with Aboriginal tradition are entitled to inhabit the leased land:

(a) to enter and be on the leased land;

(b) to take and use the natural waters and springs on the leased land;

(c) subject to any other law in force in the Northern Territory, to take or kill for food or for ceremonial purposes animals ferae naturae on the leased land; and

(d) subject to any other law in force in the Northern Territory, to take for food or for ceremonial purposes any vegetable matter growing naturally on the leased land."

337 In 1969 s 116A had been inserted into the Crown Lands Ordinance 1931 which provided that a person who had acquired a right to a Crown lease had, until the lease was granted or the right to the lease forfeited or determined, "a right of exclusive possession of the land to be included in the lease but that right is subject to the reservations, covenants, conditions and provisions to be contained in the lease". That section was repealed in 1981, after the last of the leases was granted.

338 The trial judge held that the exception to the statutory interests granted by South Australia in the first leases, and the statutory reservations in the later leases granted by the Territory was an acknowledgment by the Crown of rights of the type attaching to a subsisting native title. He held that the form of the statutory interest described as a pastoral lease "was moulded to coexist with the exercise of the existing rights of Aboriginal people", and plainly indicated that the Crown, in granting the pastoral leases, had no intention to extinguish native title (at ALR 561). His Honour rejected the Territory's submission that the reservations constituted the substitution of statutory rights in lieu of native title.

339 For reasons already given by us in relation to the reservations in favour of Aboriginal people in the State, we agree with the trial judge that the pastoral leases granted in the Territory did not totally extinguish native title rights. On the contrary, the reservations express a clear intention that those native title rights described in the reservations are held back from the grant, and remain Aboriginal rights for the enjoyment of Aboriginal people. For the reasons given in relation to s 106(2) of the Land Act 1933 (WA) we also agree with the trial judge that the reservations, even in the forms expressed in s 21 of the Crown Lands Ordinance 1927 (Cth) and s 24(2) of the Crown Lands Ordinance 1931 (Cth), did not operate to extinguish all native title rights, and to substitute statutory rights.

340 As with the reservations in favour of Aboriginal people in the State, we consider that the express reservations in the Territory on the one hand demonstrate clearly and plainly that the pastoral leases, notwithstanding the use of traditional common law language and concepts indicative of the grant of a lease entitling the lessee to exclusive possession, did not extinguish all native title by granting pastoral lessees possession that was exclusive of the interests of Aboriginal people. However, on the other hand, they operate to define the scope of the Aboriginal rights which were preserved. Insofar as the terms of the reservations did not include Aboriginal rights, those rights were susceptible to extinguishment, and were extinguished to the extent of inconsistency with rights granted under the pastoral lease.

341 It will be noted that the reservations in each of the leases, save for the last issued in 1979, reserved "full and free right of ingress, egress and regress into upon and over the leased land and every part thereof..." for the specified purposes. The reservation contained no geographical limitation excluding enclosed or improved areas.

342 The inclusion of the reservations as substantive sections in the enabling legislation, and in the pastoral leases themselves, clearly and plainly indicated that both Aboriginal people and the pastoralists had some co-existing rights over the land. As has been said, under the common law, parties possessing coexisting rights are required to exercise them reasonably, having regard to the other coexisting interest.

343 The grant of coexisting rights to be present on the land however had the inevitable effect that native title which hitherto consisted of exclusive rights to possess, occupy, use and enjoy the land ceased to be exclusive, and the native title right to make decisions about the land was abrogated to the extent that such a right conflicted with the right of the pastoral lessee to make decisions about the use of the land for pastoral purposes, including to make improvements required or envisaged by the pastoral leases, and to comply with covenants in the pastoral leases. The rights reserved to Aboriginal people were confined to rights of access for a specified purpose. In the Territory there have been no limitations in the pastoral leases which had the potential for total extinguishment in respect of enclosed or improved areas.

Other Territory Tenures - Keep River National Park and Leases to Conservation Land Corporation

344 The claim area in the Territory is currently comprised of five tenements covering land surrendered to the Crown in 1979, 1987 and 1990. The Territory contends that the grant of these tenements extinguished any remaining native title, or alternatively, in the case of tenements now held by the Conservation Land Corporation (the Corporation), permitted activities which have had that effect.

345 In 1979 NT Portion 1801 was surrendered from the Newry pastoral lease, and in 1980 it was leased in perpetuity to the Corporation. The lease to the Corporation is a special purpose lease under the Special Purposes Leases Act 1953 (NT), expressed to be for the purpose of carrying out the functions of the Conservation Commission, now the Parks and Wildlife Commission (the Commission). In 1981 NT Portion 1801 was declared the Keep River National Park.

346 In 1987 the adjoining NT Portion 3121 was surrendered from the Newry pastoral lease, and was leased in perpetuity to the Corporation under the Crown Lands Act (NT) for the purpose of carrying out the functions of the Commission. Although it appears that NT Portion 3121 was leased to the Corporation with the intention that it would later be included in the Keep River National Park, no declaration to this effect has been made.

347 In 1989 and 1990 three freehold grants were made within the claim area of the Territory to each of the Binjen Ningguwung Aboriginal Corporation, the Nyawamnyawam Dawang Aboriginal Corporation and the Dumbral Aboriginal Community Association. These freehold areas are known as Bucket Springs, Policeman's Hole and Bubble Bubble respectively. Bucket Springs and Policeman's Hole were excised from land leased to the Corporation, thus if the grants to the Corporation extinguished native title, there was no remaining native title which could have been extinguished by the freehold grants. Bubble Bubble, which adjoins NT Portion 3121 was acquired from the Newry lease. Similarly, to the extent that the pastoral leases had partially extinguished native title, the extinguished rights were already destroyed regardless of the effect of the subsequent transaction.

348 The Corporation and the Commission were established under the Parks and Wildlife Commission Act 1980 (NT). The function of the Corporation is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with the Act. Section 29 provides that the Corporation is not an authority or instrumentality of the Crown, and is not subject to the control or direction of the Minister or the Crown: see The Queen v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 at 404, 423. The functions of the Commission include promoting the conservation and protection of the natural environment of the Territory; establishing and managing parks, reserves and sanctuaries; and carrying out such other functions as are conferred on it by the Act (s 19). One of the functions conferred on the Commission by the Act is to have the care, control and management of all land acquired by the Corporation (s 39(6)). The Commission, in the performance of its functions and the exercise of its powers, is subject to the direction of the Minister (s 22).

349 Both the Special Purposes Leases Act 1953 and the Crown Lands Act provide for the grant of leases in perpetuity, subject to a covenant that the land will be used only for the purpose for which it is leased. Each Act provides for forfeiture of the lease in the event that it is used for some other purpose. Neither Act required, nor did the leases that were granted contain, reservations in favour of Aboriginal people. Both leases specified that they were granted for the purpose of carrying out the functions of the Commission in accordance with the Territory Parks and Wildlife Conservation Act 1976 (NT), and for no other purpose. Notably, the Territory Parks and Wildlife Conservation Act provides:

"122(1) Subject to subsection (2), nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

(2) The operation of subsection (1) is subject to regulations made for the purposes of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals."

350 The trial judge drew no distinction between the special purpose lease and the Crown lease, nor is it suggested that he should have done so. His Honour noted that a perpetual lease is a creature unknown to the common law, and that these leases were interests prescribed by statute, and granted for a statutory purpose. His Honour commented that the effect of the leases was little different from a reservation of Crown land for a prescribed public purpose, or the vesting of reserved land in a body to manage and control Crown land for the public purpose of the reservation (at ALR 563). In each case, the purpose of the lease was to allow the Commission to carry out its statutory functions in respect of the management of land and the protection and conservation of wildlife. However, as those statutory powers and functions are limited by s 122 of the Territory Parks and Wildlife Conservation Act, his Honour held that the leases could not be read as intended to create an interest free of the Aboriginal right at law to make traditional use of any part of the leased land for hunting, food gathering, ceremonial or religious purposes. For this reason his Honour held that neither lease extinguished native title. His Honour had, of course, earlier held that the preceding pastoral leases had not extinguished native title.

351 The Territory challenges the conclusions of the trial judge. It is contended that the grant of both the special purpose lease and the Crown lease extinguished all native title in relation to the land as each lease conferred a right of exclusive possession on the Corporation subject only to the reservation expressed in each lease. It is stressed that neither lease contained a reservation in favour of Aboriginal people. The Territory contends that s 122 merely provides for hunting and food gathering by Aboriginals for limited traditional purposes, and does no more than allow them to enter the land for those purposes where, absent the provision, they would be excluded from such activities by the grant. It is contended that the section cannot support a view that all native title rights can coexist with the performance of the functions of the Corporation and the Commission.

352 We are not persuaded that his Honour fell into error in concluding that s 122 governs the statutory powers and functions of the Corporation and the Commission. Whilst the leases were granted to the Corporation, the Corporation merely holds the interests, but has no power or function in respect of the care, control and management of the land. Those are powers and functions vested in the Commission. The relevant functions of the Commission in relation to the claim area include the conservation and protection of the natural environment, and the establishment and management of parks, reserves and sanctuaries. Those are not functions that are necessarily inconsistent with the enjoyment of native title rights: see Mabo [No 2] at 70. As the statutory powers and functions of both the Corporation and the Commission are circumscribed by s 122, the rights granted by the lease do not permit of an interpretation that excludes the exercise and enjoyment of all native title rights. It is important to remember that a "lease", even in the strict common law sense, will only extinguish native title where the lease is an "unqualified grant": see Mabo [No 2] at 89, 110 per Deane and Gaudron JJ. Here the leases were qualified by the statutory limitations on the exercise of powers and functions by the Corporation and the Commission.

353 The Territory also submits that in respect of NT Portion 1801 the declaration of that land as a park pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act in 1981 effected a statutory vesting (in fee simple) of the land in the Corporation. Relevantly, s 12(7) of that Act provides:

"Upon the declaration of a park or reserve under subsection (1), all right, title and interest both legal and beneficial held by the Territory in respect of the land (including any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of this subsection, vested in the Corporation."

354 The trial judge noted that the land was already leased to the Corporation before the declaration occurred, and that by s 13(4) of the Territory Parks and Wildlife Conservation Act if any land leased by the Corporation, as lessee, ceased to be land within a park or reserve, the lease of that land is, by force of this subsection, "surrendered". His Honour observed, we think correctly, that s 12(7), read in the context of s 13, appears to contemplate that where land is leased to the Corporation by the Territory, no greater interest is "vested" in the Corporation under that section upon the declaration of the land as a park. Moreover, his Honour considered that even if s 12(7) did vest a further interest in the Corporation, the vesting of the further interest did not extinguish native title as the Corporation still enjoyed only a statutory interest, determinable at will (by revocation of the declaration of the park) which fell far short of an interest in fee simple that would have the effect of extinguishing native title. Moreover, the "vesting" in the Corporation was a vesting of the interest by statute for management of the land for a public purpose and no more, and the public purpose was one that was subject to s 122.

355 In our opinion his Honour did not err in reaching these conclusions. Notwithstanding the language of s 12(7) we agree with his Honour that the "vesting" was of the kind described by the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401 at 409:

"It is not unimportant, however, to notice that the term `vest' is of elastic import; and a declaration that lands are `vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively".

See also Yanner at 285 per Gummow J.

356 In the alternative the Territory contended that if the grant of the leases did not extinguish all native title rights, the rights granted to the Corporation are inconsistent with a number of native title rights asserted by the applicants, and to the extent of the inconsistency partial extinguishment has occurred. The Territory contends that the grant of the leases extinguished the native title right to exclusive possession, occupation, use and enjoyment of the land, and extinguished the exclusive right to make decisions about the use of the land. In deciding whether partial extinguishment in these ways occurred by reason of the grants, the starting point must be the ambit of the native title rights existing at the time of the grants. We have already concluded that the pastoral leases which preceded the grant extinguished the exclusivity of native title rights, and the right to make decisions about the use of the land for pastoral purposes. Insofar as these rights had already been extinguished, the grant of the leases had no further effect on the applicants' native title. Moreover, having regard to the purpose of the leases, which is more sympathetic to the exercise and enjoyment of the traditional activities and customs of the Aboriginal people than the depasturing of stock, we do not think that the rights granted by the leases restrict the enjoyment of native title rights to any extent greater than under the pastoral leases. In our opinion the grant of the leases in perpetuity to the Corporation has not brought about the partial extinguishment of any native title rights and interests that had not already been extinguished by the pastoral leases.

357 Next it is contended by the Territory that the construction of improvements by the Commission extinguished native title to the land on which the improvements are constructed -- an assertion of operational inconsistency. The trial judge dismissed this contention in a sentence, saying that while management of the park involved carrying out improvements, the improvements effected were of a minor nature insufficient to reflect an overriding intention by the Crown to have native title extinguished by manner of use of the park area (at ALR 563).

358 The improvements consist of unsealed access and service roads, small unsealed car parking areas for visitors to the park, walking tracks including a foot bridge and track markers, interpretive signs for visitors, boundary fences and cattle grids, a building housing a ranger station, a communications aerial, workshop, rangers' houses, an "airstrip", bores and watering points, a gravel pit, an information shelter, a bird hide and camping facilities for visitors. The "airstrip" is a rough, unsealed area in an open section of country, with an airsock erected on a pole. These improvements are depicted in photographs. A number of the improvements were placed on the land by the former pastoral lessee, at times when the reservation in favour of Aboriginal people preserved access to "every part" of the lands. The evidence indicates that improvements effected by the Commission are carried out after consultation with the Aboriginal inhabitants who include the native title holders. Insofar as improvements are effected with the consent of the native title holders, that use is not indicative of a use inconsistent with the surviving native title rights. Rather, it is consistent with the continued exercise by the native title holders of a non-exclusive right to make decisions about the use of the land for purposes other than pastoral purposes. The minor nature of most of the improvements, the fact that the improvements are not of a kind or for a purpose that is inimical to the exercise of native title rights, and the limitation imposed on the powers and functions of the Corporation and the Commission by s 122 of the Territory Parks and Wildlife Conservation Act, justify the conclusion that no native title rights or interests which existed at the time of the grant of the leases to the Corporation have subsequently been extinguished by works carried out by the Commission.

359 We do not consider that the leases to the Corporation, or the declaration of NT Portion 1801 as the Keep River National Park extinguished native title rights, insofar as they survived the grant of the pastoral leases. In these circumstances it is unnecessary for us to consider submissions made by the applicants, and the Territory applicants, that the acts were "category D past acts", and that any extinguishment effected by the vesting of NT Portion 1801 as a park could not bring about extinguishment by virtue of s 23B(9A) of the NTA, nor the contrary submission of the Territory that if the acts were "past acts" they were "Category B past acts" which by operation of s 7 of the Validation (Native Title) Act 1994 (NT) brought about extinguishment "to the extent of any inconsistency".

360 Ground 32 of the Territory's grounds of appeal contends that the trial judge erred in law in failing to hold that native title was extinguished or partially extinguished in the Territory by the management regime established by the Territory Parks and Wildlife Conservation Act and the regulations and by-laws promulgated thereunder. In written submissions this ground was confined to the Keep River National Park in respect of which it is argued that the management regime is inconsistent with the continuing exercise of some or all of the native title rights claimed. However, the submissions do not go beyond saying:

"...it must be self-evident, that insofar as the native title rights are said to be exclusive rights, any act of management and control of the park must extinguish that native title right, at least to the extent of any exclusivity."

361 We have already expressed our conclusion that the exclusivity of native title rights was extinguished by the grant of the pastoral leases. If that were not so, we would agree that the special purpose lease of NT Portion 1801 would have brought about a similar effect on native title.

362 The Territory Parks and Wildlife Conservation Act, ss 18 to 21, makes provision for the preparation of a plan of management as soon as practicable after a park or reserve has been declared. The preparation of the plan is to take into account public representations, and is then to be laid before the Legislative Assembly. After approval, the plan comes into force, and the Commission is required to perform its functions and exercise its powers in relation to the park to which the plan relates in accordance with the plan and not otherwise. The statutory requirement that there be a plan of management prepared in this way is not indicative of an intention to extinguish native title rights. By-laws promulgated under the Act on 24 January 1984, which related generally to all parks and reserves, contain a number of provisions which regulate access to the parks and reserves and activities carried on therein. Again, these by-laws do not indicate an intention to extinguish native title rights, although in some respects native title rights, or rather customary practices, may be regulated by them, for example as to the lighting of fires. On 12 August 1992 the Keep River National Park Local Management Committee Regulations were promulgated. The function of the Committee thereby established is to advise the Commission on issues relevant to the management of the park. The regulations provided that the Committee shall consist of seven members, one of whom shall be an Aboriginal nominated by the "Murranwong-Gadgerong" families with an interest in living areas in the park, and one shall be an Aboriginal appointed from Aboriginal groups with an interest in the park but not proposing to live in it. The inclusion of Aboriginal people with an interest in the area on the Management Committee is not indicative of an intention to impair or abrogate native title rights. The Court was informed by counsel for the Territory during argument that "cooperative and friendly arrangements" exist between the Territory and Aboriginal representatives in relation to the management of the Keep River National Park, indicating that the intention apparent from the Local Management Committee Regulations that the Commission exercise its management functions having regard to the maintenance, not destruction, of the interests of the native title holders has been carried into effect.

363 Finally, the Territory raises the question of the three statutory freehold grants in respect of the Bucket Springs, Policemans Hole, and Bubble Bubble areas. Ground 31 of the notice of appeal contends that the trial judge erred in failing to find that these grants extinguished any native title in relation to the subject areas of land which may have been held by persons other than members of the organisations to whom the freehold grants were made. As counsel for the Territory applicants points out in written submissions, the ground of appeal is curiously worded as it invites the question as to the date on which membership must be determined, and whether native title is thereby turned into a life interest which can no longer be passed on by succession according to traditional laws and customs. In written submissions in support of this ground the Territory acknowledged that at trial it expressly did not rely upon the grants of freehold title to the Aboriginal corporations as having an extinguishing effect on native title, except to say that if exclusive rights of occupation and use are found in relation to those community living areas, they are rights pursuant to statutory grant and are not native title rights at common law. The submissions appear to do no more than reserve the right to argue before the High Court in an appropriate case that the decision of the Full Court of the Federal Court in Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206 was wrongly decided. The trial judge relied upon that decision as compelling the conclusion that having regard to the nature of the interests created under the relevant statutory provisions, it is not possible to be satisfied that the statute evidences a clear and plain intention that a grant of freehold under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) extinguishes native title to the relevant land. We agree that the principles discussed and applied in Pareroultja lead to that conclusion, and it was not suggested before us that we should not follow Pareroultja.

364 The Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 was passed for the purpose stated in s 3, namely to give effect to the Memorandum of Agreement between the Commonwealth and the Northern Territory on the granting of Community Living Areas in the Northern Territory pastoral districts signed on 7 September 1989, a copy of which is printed as a Schedule to the Act. It is plain from the terms of the Act that it is intended to benefit Aboriginal people, and to foster the interests of those with historical residential association with the area of a pastoral lease, not to destroy such native title rights and interests as might exist in lands made available by freehold grant under the Act for the benefit of Aboriginal people.

365 The land for Bucket Springs and Policeman's Hole was surrendered from perpetual leases held by the Corporation in June 1989. Grants in fee simple were then made under the Crown Lands Act to the Binjen Ningguwung Aboriginal Corporation and the Nyawamnyawam Dawang Aboriginal Corporation respectively. Later, the grants were converted to "an estate in fee simple for the purpose of an Aboriginal community living area" under s 16 of the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act after that Act was passed. We were told in argument by counsel for the Territory that the grants under the Crown Lands Act were made for the purposes of Aboriginal community living areas, and nothing turns on the fact that the grants of freehold were first made under the Crown Lands Act. We accept that to be the case. Bubble Bubble was acquired pursuant to s 46(1) of the Lands Acquisition Act 1979 (NT), and an estate in fee simple granted directly to the Dumbral Aboriginal Community Association for the purpose of the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act, pursuant to a procedure provided in s 46(1A) of the Lands Acquisition Act.

366 In summary, we consider that the grant of the pastoral leases over the claim area in the Territory brought about a partial extinguishment of native title rights, but that the subsequent grants of the two perpetual leases, and three freehold areas did not bring about any further extinguishment of native title. Counsel for the Territory applicants drew the Court's attention to s 47A of the NTA which he contended had the effect of saving native title from extinguishment by the grants of estates to the Aboriginal Corporations as the grants were "for the benefit of Aboriginal people" within the meaning of the section. We agree with that contention. Moreover, we think s 47A(2)(b) has the wider consequence that the prior grants of pastoral leases are also to be disregarded in respect of the areas covered by the freehold grants. The three freehold grants are in respect of areas held as mentioned in s 47A(1)(b)(ii) but we do not consider they were grants "for the provision of services (such as health and welfare services)" within the meaning of those words in s 47A(2)(b). The notion of "services" in s 47A(2)(b) is a benefit arising from the acts of those providing the services. The conveyances of the land to the Aboriginal corporations were not for the purpose of enabling someone to carry out thereon acts which constitute services. Once the pastoral leases are disregarded, the native title rights and interests in the land transferred to the Aboriginal corporations confer possession, occupation, use and enjoyment of the land on the common law holders to the exclusion of all others (subject, however, to s 47(3)).

Freehold interests in the State

(i) Crown grants

367 The trial judge held that native title was extinguished by the following freehold grants within the claim area:

* in 1921 a grant in fee simple of 400 hectares of land which had been within the Argyle Downs pastoral lease. This land was conveyed upon the fulfilment of conditions of a conditional purchase lease issued under s 62 of the Land Act 1898;

* in 1974 a grant in fee simple to the Commonwealth of Australia of land from the former Argyle Downs pastoral lease. The location became known as the Lake Argyle Telephone Exchange;

* the grant of freehold interests in residential lots of land described as the Lakeside Stage 4 subdivision. These lots were sold by auction in 1994, but they had been planned, surveyed and marked out well before that date. By operation of ss 228 and 229(4) of the NTA the preparation of the lots for sale before 1 January 1994 constituted "public work" and, as a "past act" intended to extinguish native title, was validated by s 5 of the Titles Validation Act 1995 (WA); and

* in July 1996 in respect of two parcels of land vested in Murlroam Pty Ltd under s 118CA of the Land Act 1933. His Honour held that the "past act" provisions of s 228(3) of the NTA applied so that the grant was validated under the Titles Validation Act 1995 with the consequence that native title was extinguished.

368 There is no cross appeal by the claimants in respect of these findings.

369 The trial judge held that grants to S G Muller and Innes Holdings Pty Ltd which occurred after 1 January 1994 could have no effect on native title unless the requirements of the "future act" provisions were met, and as we understand his Honour's reasons, he was not so satisfied. Innes Holdings Pty Ltd was one of the Alligator appellants, but its appeal has been discontinued. The State nevertheless challenges this finding. These grants are both within areas of land resumed under s 109 of the Land Act 1933 for the Ord Project. As we are of the opinion that native title was wholly extinguished in these areas before the grants were made (see below), there is no need for us to consider this ground of appeal.

(ii) Permit to occupy Crown land prior to the issue of Crown grant

370 In January 1918 Reserve 16729 was created which included land formerly held in other reserves, under pastoral leases, and under a special lease. The area of the reserve was approximately 30,000 hectares outside the township of Wyndham. A major part of this land is outside the determination area. In June 1918 the purpose of the reserve was amended to "for use and requirements of the Government of the State in connection with the Wyndham Freezing, Canning and Meat Export Works". The Wyndham Freezing Canning and Meat Works (the meat works) was conducted by a body incorporated as a State Trading Concern. The works were established in June 1918. On 27 September 1918 a permit to occupy rural lands was granted to the meat 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 shall, on application, receive from the Minister a permit to occupy in the form set out in the appropriate Schedule to the Act, being a certificate that the purchaser is entitled to a Crown grant. The trial judge held that between 1918 and 1962 the reserve was used for grazing and watering of cattle before the cattle were taken to the meat works at Wyndham. However, it seems that a grant in freehold to the meat works did not proceed as there is no record of the issue of a sealed deed of grant as required by s 12 of the Land Act 1898. His Honour noted that the history of the matter suggested that the Crown regarded the interest accorded by the permit as sufficient for the purposes for which the reserve was to be used. His Honour held that neither the permit nor the manner of use of the land for the purpose for which the reserve was created demonstrated a clear and plain intention by the Crown to extinguish native title in the land, and he noted that the reserve was a substantial area which remained undeveloped save for its use for the purposes of grazing and watering cattle.

371 The fulfilment of the conditions for the grant of a permit under s 16 entitled the grantee to a grant in fee simple, and the purpose of the permit was to authorise entry for the taking of possession of the land in advance of the completion of the formalities associated with the sealing and recording of a grant in fee simple. A grant in fee simple would undoubtedly have extinguished native title.

372 The permit to occupy authorised and empowered the meat works:

"...at any time after the date hereof, to enter upon the said tract or parcel of land, and to hold and enjoy the same for its absolute use and benefit; subject to the provisos contained in the prescribed form of Crown Grant for rural lands under `The Land Act, 1898.'"

373 We consider that the grant of the permit entitled the grantee to exclusive possession of the land, a right that would have been perpetuated by the grant in fee simple. We consider that in these circumstances the statutory grant was plainly and clearly intended to extinguish native title, as the grantee obtained a right to exclusive possession which was intended to continue in perpetuity. In our opinion the grant of the permit had the effect of wholly extinguishing native title. However, even if this were not the case, for reasons which appear elsewhere we consider that other transactions in relation to Reserve 16729 would have wholly extinguished native title in some portions, and partially extinguished it in the balance of the area.

Roads

374 As the trial judge concluded that native title was not wholly extinguished by the resumption of pastoral lease land for the Ord Project, and the subsequent use of the land for that purpose, it was necessary for him to consider if other transactions wholly extinguished native title in respect of small and discrete areas within the resumed lands. In this context, submissions were made by the State and other respondents that certain areas dedicated or used as roads had extinguished native title. This submission was upheld in the case of a number of roads which are identified in the Second Schedule to the determination (about which there is no cross appeal). However his Honour was not satisfied that native title had been extinguished in respect of land described as Martin's Gap Road, nor did his Honour refer to evidence which had been led from Mr Roy Hamilton, an engineer involved with the construction of the main dam, about an early access road on the Argyle Downs pastoral lease which had been used by construction personnel for access to the top dam until the new Lake Argyle Road was completed. The State's grounds of appeal contend that both Martin's Gap Road and the access road extinguished native title.

375 For reasons which appear below in connection with the Ord Project, we consider that native title was otherwise extinguished in the area of Martin's Gap Road. However if we are wrong in that regard, it appears to us that the evidence sufficiently discloses that there was a dedication of part of Martin's Gap Road, and that the problem which his Honour noted (at ALR 573) about the evidence arises from the inconsistency between a map prepared by the State and a survey diagram made in about 1969 which were admitted into evidence. The State submits that it is obvious that the person who drafted the plan has shown the dedicated section of the road incorrectly. That error apart, maps show that there is a Martin's Gap Road which includes a configuration similar to the portion of dedicated land shown on the map admitted into evidence. We think that the probability of there being a dedicated road as alleged was sufficiently high to require that the State be given the opportunity to lead further evidence on the topic to clarify the situation so that the determination correctly declared the public interest in the road, if indeed it existed as the State alleges.

376 As to the access road, it is entirely understandable that the trial judge made no reference to it in his judgment. It was not a road that was initially pleaded. It was referred to in passing by the witness. The road was never surveyed. No evidence was led to establish its exact location. No evidence was led about the construction works, if any, which were associated with the road. The impression given by the evidence is that it was a temporary track, the course of which was dictated by the lie of the land, and that at all times it was intended to be a temporary means of access. At the time the land was part of the Argyle Downs pastoral lease, and presumably entry was gained by the construction personnel with the consent of the pastoral lessee. As it was at all stages intended that the access track be a temporary one, that use could not amount to an operational inconsistency of the kind that would extinguish native title. Moreover, there was no resumption of land from the pastoral lease at that time for road purposes, there was nothing in the nature of a declaration of Crown land as a public road, nor is there any evidence that the access track was ever used and thereby accepted by the public: see Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 152 ALR 294 at 309-310.

Creation of reserves in the State

377 Within the claim area there are numerous parcels of land that have at one time or another been reserved under the Land Regulations 1882, the Land Act 1898, or the Land Act 1933.

378 The Land Regulations 1882 empowered the Governor, by regulation 29, to except from sale and reserve Crown land for specified purposes including "any purpose of...public utility...or for otherwise facilitating the improvement and settlement of the Colony". Under regulation 33 the Governor was empowered by order published in the Government Gazette (WA) to direct that a reserve vest in, and be held by, any corporation in trust for like or other public purposes specified in a vesting order.

379 The Land Act 1898 empowered the Governor, under s 39, to except from sale and either to reserve to Her Majesty, or to dispose of in such other manner as for the public interest may seem best, any lands vested in the Crown that may be required for specified purposes including any purpose of public utility or for otherwise facilitating the improvement and settlement of the colony. The Governor was empowered to direct that any reserve vest in and be held by a municipality or other person in trust for like or other public purposes specified in the vesting order. The Governor was also empowered to grant the fee simple of any reserve to secure the use thereof for the purpose for which the reserve was made, or to lease the reserve in a form prescribed by a Schedule to the Act: see s 42.

380 The Land Act 1933, in s 29, empowered the Governor, subject to such conditions and limitations as he thinks fit, to reserve to His Majesty, or to dispose of in such manner as for the public interest may seem fit, any lands vested in the Crown and the purpose for which any such lands are so reserved or disposed of shall be specified in the reservation or disposition. Section 30 required that reserves be notified in the Government Gazette. Section 31, prior to amendment in 1949, provided that the Governor may by notice and thereafter by proclamation declare a reserve for certain purposes to be a Class A reserve by which classification the land so reserved shall remain dedicated to that purpose until an Act of Parliament provides otherwise, or to be a Class B reserve by which reserved land shall remain reserved from alienation, or otherwise being dealt with, subject to cancellation of the reserve by the Governor by notice in the Government Gazette after presentation to both Houses of Parliament of a special report giving reasons for the cancellation. All other reserves were classified as Class C. Under s 37 there was an unfettered power to cancel and amend the boundaries, or change the purpose, of any reserve not classified as Class A.

381 In 1982 s 29 was amended to allow land to be reserved for a specified purpose without the requirement that the purpose be a purpose specified in the Act.

382 Section 32 of the Land Act 1933 empowered the Governor to lease a reserve for any purpose if the reserve is not immediately required for the purpose for which it was made, for a term not exceeding ten years. In 1960 the section was amended to allow the grant of a lease or licence of land reserved for the purpose of parks or for recreation and amusement of the inhabitants for a term of one year for the purpose of depasturing stock notwithstanding that the land is being used for the purpose for which it is reserved.

383 Section 33 of the Land Act 1933 provided that by order the Governor may direct that any land vest in or be held by any person for the purpose for which the land is reserved. In 1949 s 33 was repealed and a provision substituted which authorised the Governor to direct that reserved land be vested and held by any person for the purpose for which the land was reserved, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose, and to confer upon that person power to lease for the purpose the whole or any part of the land. The amendments also permitted the Governor to direct that any land shall be granted in fee simple to any person subject to the condition that the person shall not lease or mortgage the land without the consent of the Governor and subject to such other restrictions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose for which it was reserved.

384 In 1987 s 33 was amended to include in the reserved purpose "any purpose, ancillary, and beneficial" to that purpose. Section 34B of the Land Act 1933, inserted in 1982, empowered the Governor to revoke any vesting order in respect to reserved land. In that event, leases granted by a person in whom the reserve had been vested prior to revocation were to continue as if the Crown were the lessor.

385 At trial the State submitted that the creation of reserves for a purpose had the effect of withdrawing the lawfulness of the use of the land for any other purpose and thereby extinguished native title. The trial judge rejected that submission, and before this Court the State contends that he was in error in doing so.

386 The trial judge pointed out that under the legislation an offence of unlawful occupation of public lands applied equally to vacant Crown land and land reserved for or dedicated to any public purpose: the Land Act 1898, s 135 and the Land Act 1933, s 164. His Honour referred to Mabo [No 2] at 66 per Brennan J and at 114 per Deane and Gaudron JJ, and to Wik at 190-194 per Gummow J. At these references members of the High Court explain why, in similar legislation proscribing unlawful occupation by "any person", such a provision is not directed to native title holders in occupation of land, and does not evidence a legislative intention to extinguish native title. In our opinion his Honour was correct to apply that reasoning, and correct in his conclusion that the creation of reserves, without more, did not extinguish native title. The power in s 32 of the Land Act 1933 to lease reserves not immediately required "for any purpose" supports this conclusion.

387 His Honour, correctly in our opinion, held that the effect of the reservation of land was to enable the Crown to hold back from alienation areas of land which it deemed necessary to retain for use for public purposes: see Wik per Gummow J at 200-201. By reserving land for a public purpose it protected the land from sale, but did not alter the control of the land which remained with the Crown. No rights were created in favour of third parties, and accordingly no question of the enjoyment of rights by others inconsistent with the continuation of native title could arise. If the land were both reserved and dedicated for a public purpose, for example by the classification of reserved land and as Class A under s 31 of the Land Act 1933, an issue might then arise as to whether the dedication created rights in members of the public, or a section of the public: see Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 per Windeyer J at 74. If so, a further question would arise as to whether the rights created in members of the public were inconsistent with the continued enjoyment of asserted native title rights.

388 In respect of these issues, Brennan J in Mabo [No 2] said at 66:

"Native title was not extinguished by the creation of reserves nor by the mere appointment of `trustees' to control a reserve where no grant of title was made. To reserve land from sale is to protect native title from being extinguished by alienation under a power of sale...".

and at 67:

"The power to reserve and dedicate land to a public purpose and the power to grant interests in land are conferred by statute on the Governor in Council of Queensland and an exercise of these powers is, subject to the Racial Discrimination Act, apt to extinguish native title..."

Then, after considering the effect of the grant of a lease, his Honour continued in a passage to which we have already referred, at 68:

"Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved or dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable."

389 It follows that whilst the mere reservation of land for a public purpose has not extinguished native title, it will be necessary in the case of each reservation to consider whether there is also a dedication which has created inconsistent rights in the public, or a use which has this effect, having regard to the nature of the purpose.

390 The State also contended that pursuant to the ordinary meaning of the word "vest" the vesting of reserved Crown lands in any person, where that occurred, had the effect of a conveyance of an estate in the land with the right to exclude others, thus evidencing a clear and plain intention to extinguish native title. In our opinion the trial judge correctly rejected this general proposition. The power to vest reserved land in a person for the reserved purpose in s 33 of the Land Act 1933 was considered by the High Court in City of Perth v Crystal Park Limited [1940] HCA 35; (1940) 64 CLR 153. In that case Crown land reserved for the purpose of recreation and parking pursuant to s 33 was vested by the Governor in the State Gardens Board. Rich ACJ at 162 and Williams J at 168 considered that the word "vest" is a word of elastic import and of limited meaning when lands are vested in a public body for a public purpose. Their Honours referred to the opinion of the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401 at 409 where it was said:

"It is not unimportant, however, to notice that the term `vest' is of elastic import; and a declaration that lands are `vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively: Tunbridge Wells Corporation v Baird [1896] AC 434, an interest which may become devested when these functions are transferred to another body. In their Lordships' opinion, the words quoted from s 1 are not inconsistent with an intention that the Commissioner should possess such limited interest only as might be necessary to enable him effectually to execute the powers and duties of control and management, of suing and being sued, committed to him by the Act."

See also Yanner at 267 and 285-287.

391 These passages require that where reserves have been vested in a person for the reserve purpose, it will be necessary to consider the nature and circumstances of the reserve and the purpose for which it was created to ascertain if the vesting granted to the authority more than merely the rights necessary for the control and management of the reserve. The trial judge embarked on that exercise in a separate part of his judgment, and we shall follow the same course.

Limitation Act 1935 (WA)

392 Ground 28 of the State's notice of appeal contends that the trial judge erred in law in failing to hold that in Western Australia native title is extinguished at common law or pursuant to the Limitation Act 1935 (WA) or the Crown Suits Act 1947 (WA) in circumstances where claimants have not occupied parts of the claim area for twelve years or more, or alternatively six years, and have not brought an action within that time to recover such land. The trial judge dealt with arguments based on this legislation at ALR 581-582, and rejected them.

393 The Limitation Act 1935 (WA) by its terms does not apply to an application for determination of native title under the NTA. Section 4 relevantly provides that no person shall bring an action to recover any land but within twelve years next after the time at which the right to bring the action accrued. An "action" is defined to mean a civil proceeding commenced in a Western Australian court of competent jurisdiction. An application under the NTA is not such a proceeding. Further, "land" is defined in s 3 of the Limitation Act in terms which make it clear that it is intended to apply to common law tenures. Native title is not an institution of the common law and in our opinion does not come within the definition of "land" in s 3. The Crown Suits Act 1947 is legislation in respect of proceedings brought against the Crown in the right of the Government of Western Australia to enforce a right of action. As the trial judge pointed out, it is not necessary for proof of the existence of native title to show that it has been asserted against the Crown, and an application under the NTA for a determination that native title exists is not a proceeding to enforce a right of action against the Crown in the right of the Government of Western Australia. Further, even if this view is wrong and by their terms the Limitation Act or Crown Suits Act purport to impose a limitation period upon proceedings determining native title in relation to land in Western Australia, in our opinion that limitation would be inconsistent with the scope and purpose of the NTA in providing for the recognition of native title rights which, by their very nature, are rights of antiquity. To the extent of that inconsistency, the limitation period so imposed would be invalid under s 109 of The Constitution.

394 In Mabo [No 2] at 89-90 Deane and Gaudron JJ stated that common law native title could be effectively extinguished by an inconsistent dealing by the Crown with the land and instanced the reservation or identification of land for an inconsistent use or purpose where the actual occupation or use of the native title holders was terminated. In those circumstances their Honours considered that an ultimate lack of effective challenge "would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations". In that situation a proceeding taken by the native title holders to challenge the validity of the dealing by the Crown which denied them continued occupation or use would not be a proceeding under the NTA, but a proceeding of a different kind which would plainly be to enforce a right of action against the Crown. The imposition of a time limit in those circumstances by State legislation would not be inconsistent with the NTA. However, it is not a situation of that kind which is presently asserted by the State as the basis for invoking the Crown Suits Act.

395 The State also seeks to invoke the provisions of the Limitation Act in another way. Mabo [No 2] acknowledges, at 60, that native title might be lost where the indigenous community does not substantially maintain connection with the land, and "the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs". The State contends that the twelve year limitation period specified in s 4 provides a useful analogous indicator of the outer limit of the period of interruption of connection with the land which can occur without breaking continuity of connection. Thus it is argued that if the evidence shows that the applicants have not been in occupation or possession of the land for a period upwards of twelve years, the common law will no longer recognise their native title. We reject this submission. We have already explained that connection may be substantially maintained without actual physical presence on the land. The length of time over which there has been no physical presence on the land will be a relevant consideration in determining whether the tide of history has washed away any continuing connection between the descendants of original native title holders and the land. However, that will be but one of many factors to be considered. As we have already explained, if physical presence on the land is impracticable by reason of the attitude or activity of non-Aboriginal people who have taken over the use of the land, evidence as to the absence of physical presence will not necessarily indicate a breakdown in the spiritual and traditional cultural connection with the land. That connection can be maintained in other ways.

Proclamation of the Ord Irrigation District

396 Early in this judgment we summarised briefly the development of the Ord Project. The implementation of the project led to successive resumptions of land from pastoral leases, and also to the "bargain and sale" acquisition of the Argyle Downs pastoral lease. The proclamation of the Ord Irrigation District, and the later proclamation of two extensions to the District are interrelated with the development of other aspects of the Ord Project. Stage 1 of the Ord Project involved the resumption of parcels of land for the construction of the diversion dam and associated works, for irrigable farmland, and for the Kununurra townsite in 1960 and 1961 (see below). The diversion dam was constructed between 1960 and 1962. Irrigation first began in the 1960/61 wet season on a "pilot" farm. The first release of lands occurred in May 1962 when, pursuant to s 84 of the Land Act 1933, the Governor by notice in the Government Gazette defined and set apart Crown lands as "special settlement lands" and declared the same open for selection. The proclamation of the Ord Irrigation District took place in the context of these developments.

397 In 1960, pursuant to  s 27(5)  of the  Rights in Water and Irrigation Act 1914  (WA) by proclamation it was declared that  Part III  of that Act applied to the Ord River and its tributaries. In 1962 under  s 28  of the  Rights in Water and Irrigation Act  by Order in Council the Ord Irrigation District (the District) was constituted. The District proclaimed covered the land intended to be irrigated during the first stage of the Ord Project, the diversion dam and levies, a pumping station, and two miles of the diversion dam storage (Lake Kununurra) closest to the dam wall. The District was extended in 1965 to cover additional land being irrigated as part of the first stage, and the western end of Weaber Plain. The District was extended again in 1973 to include all areas in Western Australia planned to be irrigated under the Ord Project, the whole of the former Argyle Downs pastoral lease, the area of freehold land on which the Argyle Downs homestead was located, and the whole of the Ord River catchment area upstream of the main dam. Pursuant to  s 27(4)  of the  Rights in Water and Irrigation Act , every river, stream, water course, lagoon, lake, swamp or marsh within the boundaries of the District became subject to  Part III  of the Act.

398 Upon the application of Part III to the Ord River and its tributaries, and then to the District, by s 4(1):

"The right to the use and flow and to the control of the water at any time in any water-course, and in any lake, lagoon, swamp or marsh, and in any spring, and subterranean source of supply shall, subject only to the restrictions hereinafter provided, and until appropriated under the sanction of this Act, or of some existing or future Act of Parliament, vest in the Crown."

399 The trial judge rejected the submission of the State that the proclamation of the District and its extensions, and the application of Part III to the Ord River and its tributaries had the effect of extinguishing native title to the extent of all property in the beds of

water-courses, lakes, etc. and to rights to control the use and flow of waters and to any right to impede or resist any control, conservation or regulation of the waters by or on behalf of the Crown. The State contends that the trial judge erred in this conclusion.

400 We consider that  s 4(1)  of the  Rights in Water and Irrigation Act  is a clear example of a statutory provision where all that is vested in the Crown is only such powers of control and management as are necessary to enable the Crown to discharge the powers and functions arising under the Act. We do not consider that the mere vesting effected under s 4(1) evidenced an intention to extinguish native title rights.

401 The State contends that all rights to take and use water that might otherwise have existed are abolished by Part III of the  Rights in Water and Irrigation Act , and replaced by statutory rights. Attention is drawn to the provisions of ss 6, 7, 14 and 17 of the Act. In our opinion these sections do not have the effect of replacing pre-existing rights to use water with new statutory rights. Section 6 prohibits the diversion or appropriation of water from any water-course, lake, etc. "save in the exercise of the general right of all persons to take water for domestic and ordinary use, and for watering cattle and other stock from any water course...". That section, far from destroying existing rights, and substituting new rights, is expressed to preserve existing rights. So too is s 7 which preserves certain rights of the owner or occupier for the time being of land adjacent to any water-course, lake, etc. Section 14 provides that all owners and occupiers of land alienated from the Crown through or contiguous to which runs any water-course, lake, etc. shall in respect of such ownership or occupation have rights free of charge to the water for domestic and ordinary use of themselves and their respective families and servants and for watering cattle or other stock. Again, we interpret this section as one reserving existing, although now regulated, rights, and not as a section which creates entirely new rights. Section 17 imposes conditions regulating "[t]he right of any owner or occupier of lands adjoining the bed of any water-course, lake" etc. to take and use water from a water-course, or of any lake, etc. wholly or partially supplied with water from, or whose volume may be increased by public works commenced under the Act. Again, the section by its terms, regulates an existing right, and does not create an entirely new one.

402 Similarly, s 5, to which the State refers in its submissions, which provides that where a water-course, lake, etc. forms the boundary or part of the boundary of a parcel of land, the bed thereof shall for the purposes of the Act be deemed to remain the property of the Crown and not to have passed with the alienation of the land, is a provision intended to do no more than ensure that the Crown has the necessary administrative powers of control and management for the purposes of the Act.

403 The State contends that for the purposes of the Act native title holders are not "occupiers" so as to have the benefit of sections in favour of "the owner or occupier" and thus by necessary intendment, the Act does not reserve pre-existing rights of native title holders. "Occupier" is defined to mean a "person by whom, or on whose behalf, any land is occupied, and if there is no occupier the person entitled to possession". In our opinion that definition is wide enough to include native title holders who in accordance with their laws and customs occupy lands, even where that occupation co-exists with occupation by a pastoral lessee.

404 Further, the State contends that s 8 of the  Rights in Water and Irrigation Act  by implication excludes the rights of native title holders to the exclusive use of water. That section provides that no right to take and divert water from a water-course, lake, etc. shall be acquired by any person by length of use or otherwise other than in accordance with the provisions of the Act. That section by its terms is prospective in its operation, and cannot be construed as evidencing a legislative intention to extinguish native title rights.

405 We consider that the application of Part III of the  Rights in Water and Irrigation Act  to parts of the claim area which occurred when the Ord Irrigation District was proclaimed, and later extended, did not have the effect of wholly extinguishing native title. However, if and insofar as the claimants otherwise were the native title holders of exclusive rights to possess, occupy, use and enjoy the area, the application of  Part III  had the effect of destroying that exclusivity. The Act imposed restrictions upon the diversion or obstruction of any water-course, lake, etc. and on the use of water. These restrictions necessarily removed the exclusivity of the right to control the use and enjoyment of the water. However, for reasons we have already expressed, we consider that the grant of pastoral leases over the areas in question had already extinguished the exclusivity of native title rights.

406 The State further relied at trial, and before this Court, on by-laws made in 1963 under the  Rights in Water and Irrigation Act , and contended that the by-laws had the effect of extinguishing native title. The by-laws provide for the protection of water, grounds and works from trespass and injury, make provision for the supply and control of water, and for the imposition of rates and charges in respect of waters made available for irrigation purposes. By-law 4 prohibits trespassing within fenced off ground adjacent to or reserved for water supply or irrigation works, and the unauthorised entry upon any water or irrigation work not open to the public. By-law 5 prohibits camping and lighting of fires in specified areas in the District, and other by-laws prohibit interference with flora, or the shooting, trapping or taking of fauna within a prescribed distance of any reservoir within the District. Other by-laws concerned the taking and use of water from any works, trespass and interference with any works, and fishing from or in the vicinity of the diversion dam. The trial judge, correctly in our view, held that at the highest these by-laws controlled the exercise of some rights of native title but did not signify a Crown intention to wholly extinguish native title in the prescribed areas. The regulations however would have the effect of removing the exclusivity of any right to make decisions about the possession, occupancy, use and enjoyment of water and some of the land in the proclaimed Districts.

Proclamation of townsite of Kununurra

Resumption and acquisition of Crown lands from pastoral leases for Ord River Irrigation Project and other purposes

407 It is convenient to deal with these two topics together as, like the proclamations under the  Rights in Water and Irrigation Act , they form part of the implementation of the Ord Project. The proclamation of the townsite of Kununurra occurred sometime after the resumption of land had commenced. In considering the effect of the various steps progressively taken to achieve the implementation of the Ord Project on native title, we think it is important to consider the many grants and other transactions in relation to the land affected by the Ord Project in a comprehensive way which recognises their interrelationship.

408 As we have earlier mentioned, the Ord Project proceeded in three stages. The first stage involved the resumption of land for the construction of the diversion dam, the works required to irrigate and develop 10,000 hectares of irrigation land (including such things as earthworks to establish contours and gradients for farm units, constructing irrigation channels, drainage channels, stormwater protection drains, and a pumping station) and infrastructure including roads and the town of Kununurra. A drainage system, partly constructed and partly natural, was as essential to the Ord Project as the provision of irrigation water to protect farms against flooding and water inundation from higher areas during heavy rains, and to remove excess water from the farms.

409 The second stage involved the resumption of more land, the construction of the main dam (built between 1969 and 1971, and opened on 30 June 1972, creating Lake Argyle), works necessary to develop an additional 60,000 hectares of land (including the construction of another pumping station in 1971 to supply Packsaddle Plains), further infrastructure to support the Ord Project (including roads and protective fencing around Lake Argyle as part of an erosion control program), the extension of the Ord Irrigation District in 1973, and the release of more farm units. The final stage involved the construction of a hydro-electric power station and the provision of installations incidental to the reticulation of the power generated by the station. It should be noted that there are also plans for the Ord Project to be expanded to encompass a further 50,000 hectares or more of irrigable land - hence the third extension of the Ord Irrigation District.

410 All these components of the Ord Project were included in initial plans. Areas resumed from pastoral leases were carefully planned, having regard to immediate and prospective needs. Areas resumed took account of such diverse factors as the need for buffer zones against spray drift, control of erosion and flooding on lands above the irrigation areas, weed control, the need for high land for stock in the wet, the progressive expansion of the irrigation areas, the management of human activity around and below the dams and on the banks of the lakes, and the control of stock and erosion in the catchment areas. On the last topic, for example, by 1960 it was estimated that twelve million tons of material were being eroded from the 17,800 square mile Ord River catchment area each year. The yearly silt load of the River was approximately one-eighth of the anticipated capacity of the proposed diversion dam. The protection and regeneration programs led to the resumption of pastoral land in the catchment area. Planning issues in relation to the township required consideration of issues relating to sewage disposal, power reticulation, community living and recreation areas and so on. The Alligator appellants colourfully, but we think accurately, emphasised the interrelated and interdependent elements of the Ord Project by saying that practically the entire area that has been developed is linked and criss-crossed with irrigation supply channels and drains such that the Ord Project can in a practical sense be regarded as a "living, breathing entity, protected from heavy external natural runoff by levies and hillside drains, with water distributed by a precise combination of gravity and pumping and drained back into the Ord and Keep River Systems by means of artificial drainage linking up with natural drainage patterns". And whilst "the Project harnesses, to some extent, the natural topography and forces of nature, nevertheless there is a fundamental imposition of a completely new order onto the landscape...involving precision engineering solutions applied on a very large scale".

411 The following incremental steps occurred in the course of the implementation of the Ord Project:

* 1947: 2,000 acres or thereabouts resumed from the Ivanhoe pastoral lease for "Agricultural Research Station". This land was later included within the second farm area, and is known as the Kimberley Research Station;

* 1960, January: 6,400 acres resumed from the Ivanhoe pastoral lease "for the purpose of `the Ord River Irrigation Project'". This land was resumed for the diversion dam and associated works area;

* 1960, February: declaration under the  Rights in Water and Irrigation Act ,  s 27(5) , in respect of the Ord River and its tributaries;

* 1960, May: 12,625 acres resumed from the Ivanhoe pastoral lease "for the purpose of `Ord River Irrigation Project'". This resumption was for the development of the pilot farm area and the preparation of the first farm area;

* 1961, February: 7,436 acres resumed from the Ivanhoe pastoral lease "for the purpose of Kununnura Townsite". By proclamation under s 10 of the Lands Act 1933 published in the Government Gazette on 10 February 1961, headed "NEW

TOWNSITE - KUNUNURRA" the townsite was constituted and set aside as "Town and Suburban Lands". The defined boundaries of the townsite included the land resumed in 1961 specifically for the purposes of the townsite, and additionally part of the land which had earlier been resumed in 1960 for the diversion dam and associated works;

* 1961, September: 30,790 acres or thereabouts resumed from the Ivanhoe pastoral lease "for purposes of the `Ord River Irrigation Project'". This land was for the development of the second farm area, and is immediately to the north of the first farm area. This area incorporates the land resumed in 1947 for the Agricultural Research Station;

* 1961, November: 345 acres resumed from the Ivanhoe pastoral lease "for purpose of an `Aerial Landing Ground'". This land now comprises the Kununurra airport;

* 1962, July: 23,208 acres resumed from the Ivanhoe pastoral lease "for the purpose of the `Ord River Irrigation Project'". This land was to allow for the development of the third farm area, and virtually completed the resumption of all the land considered irrigable on the area known as the Ivanhoe Plain;

* 1962, July: proclamation under the  Rights in Water and Irrigation Act  constituting the first Ord Irrigation District;

* 1963, July: Ord Irrigation District By-laws, 1963 promulgated;

* 1963, December: 2,304 acres resumed from the Ivanhoe pastoral lease "for the purpose of extending Reserve No 22609 (Agricultural Research Station)". This land adjoined the land resumed in 1947, and constituted an extension to the Kimberley Research Station to enable research into cattle breeding and the use of supplements for cattle breeding;

* 1965, August: second extension to the Ord Irrigation District proclaimed, which covered additional land being irrigated as part of the first stage, and the western end of Weaber Plain which at the time was intended to be an early development of the second stage of the Ord Project;

* 1967, August: 37,235 acres resumed from three different pastoral leases each of which constituted part of the Ivanhoe Station, "for the purpose of an `Ord River Irrigation Project'". This land was to the north-east of the previous resumptions to provide a modest extension of the first stage area, and to cover the western end of Weaber Plain;

* 1967, September: 1,967 acres resumed from the Ivanhoe pastoral lease "for the purpose of an `Ord River Irrigation Project'". This land was immediately to the south of the diversion dam and associated works area, and was resumed to prevent damage from stock, and to control activities on and around the vicinity of the levy bank at the southern end of the diversion dam; and

* 1967, April, June and December: land resumed from a number of pastoral leases outside the claim area, but in the catchment area of the Ord Project "for the purpose of `Regeneration of eroded areas in the Ord River Dam Catchment Area'". These resumed areas constitute Reserve 28538, but being outside the claim area require no further consideration.

Each of the above resumptions of land from pastoral leases occurred under s 109 of the Land Act 1933.

* 1971: the Argyle Downs pastoral lease ( 998,364 acres), and the 1000 acre Argyle Downs Homestead area held as freehold, were acquired by the Minister for Works under a "bargain and sale" transaction. The agreement for sale was signed on 23 November 1970 with completion occurring in April 1971, when the transfer of the pastoral lease was recorded on the Certificate of Title. As this was a bargain and sale transaction, it was not governed by s 109 of the Lands Act 1933. The source of power and the consequences for native title which flow from acquisition are discussed below;

* 1972, June: 117,184 acres and 23,017 acres respectively resumed from the Lissadell and Texas Downs Stations "for the purpose of `Government Requirements'". The two areas resumed adjoin the southern boundary of the former Argyle Downs pastoral lease. The resumed portion of Lissadell includes parts of Lake Argyle when full to the normal supply level, and would be largely inundated when Lake Argyle is at maximum flood level. The portion resumed from Texas Downs also includes a portion of Lake Argyle when at maximum flood level. These areas were resumed to prevent stock losses from flooding and for erosion protection;

* 1972, November: 3,361 hectares resumed from the Ivanhoe pastoral lease for "Ord River Irrigation Project - (Packsaddle Plains Area) Extension". This resumption followed the completion of the main dam, to enable an extension of the irrigation area into the Packsaddle Plains to the south of, and above the water level of the diversion dam; and

* 1975, December: 1,085 hectares resumed from the Ivanhoe pastoral lease for "Ord River Irrigation Project - Packsaddle Plains Area - Extension". This resumption was for a further extension of the Packsaddle Plains irrigation area.

The last two acquisitions were expressed to be pursuant to the Public Works Act 1902 (WA) and the  Rights in Water and Irrigation Act .

* 1973, June: proclamation of the second extension to the Ord Irrigation District

412 As earlier noted, pastoral leases granted under the Land Act 1933 in the form of the Nineteenth Schedule were granted subject to the powers, conditions and reservations contained in Part VI of that Act (ss 89E to 115). Section 109, prior to its amendment in 1963 relevantly provided that the Governor may resume, enter upon and dispose of the whole or any part of the land comprised in any pastoral lease for any purpose "as in the public interest he may think fit". Following an amendment in 1963, s 109 empowered the Governor to resume, enter upon and dispose of the whole or any part of the land comprised in a pastoral lease "as in the opinion of the Governor may be required for any purpose of public utility or for otherwise facilitating the improvement and settlement of the State".

413 We do not understand any party to dispute that s 109 empowered the Governor to resume the lands from the pastoral leases. Nor do we understand it to be disputed that upon resumption the land relevantly vested in the Minister under  s 3(2)  of the  Rights in Water and Irrigation Act .  Section 3  relevantly provides:

"(1) The general administration of this Act shall be under the control of the Minister.

(2) All lands acquired for or dedicated to the purpose of this Act, and all irrigation works constructed, or in the course of construction under this Act, and all irrigation works constructed by the Government before the commencement of this Act which the Governor may, by Order in Council, declare to be subject to this Act, shall vest in the Minister on behalf of Her Majesty...."

414 The State contended before this Court that the trial judge erred in rejecting its contention that native title was wholly extinguished by either the resumption of the lands under s 109 of the Land Act 1933 or by the vesting of the lands in the Minister pursuant to  s 3(2)  of the  Rights in Water and Irrigation Act .

415 The resumptions were undertaken, plainly enough, to terminate the interests of the pastoral lessee. However, the State contended that a resumption under s 109 has a further purpose as the Governor is empowered to resume, enter upon and dispose of the land, and not just interests in the land. The State added that s 109 should be construed in light of the fact that upon resumption the statutory right of Aboriginal access under s 106(2) of the Land Act 1933 will cease to operate. The State said that "the resumption itself effected an extinguishment by reason of the crystallisation of the reversion, acquisition of the land under s 109, and termination of the operation of s 106(2)". It is contended that s 109 should be construed as having the effect that upon resumption all right and title in the land is acquired by the Crown, to the exclusion of any outstanding native title or other rights.

416 We do not accept these contentions. We have already expressed our conclusion that s 106(2) operates as a reservation in respect of otherwise existing rights and reserved native title rights would be unaffected by the resumptions. Moreover, the permissive language of s 109 does not require the conclusion that the Governor is required, upon a resumption, to dispose of land. The Crown can continue to hold the resumed land as Crown land for the purpose for which it was resumed.

417 In Mabo [No 2] at 68, Brennan J observed that:

"If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium."

Kirby J pointed out in Wik at 225, that this is not part of the binding rule established by Mabo [No 2]. The order of the Court did not reflect such a view, and in our opinion it was effectively rejected in judgments in Wik at 128-129 per Toohey J, 155 per Gaudron J,

187-190 per Gummow J, and 224-225 per Kirby J.

418 Having concluded that the resumptions under s 109 did not without more indicate a clear and plain intention to extinguish native title, the trial judge said that extinguishment would occur, if at all, when the land was appropriated by the Crown for a public purpose and used for that purpose in a manner inconsistent with the continued enjoyment of native title. This led his Honour to consider the use to which discrete parcels of land had been put, those parcels comprising in the main various reserves established for one purpose or another in and around Kununurra, and discrete allotments of vacant land. In this respect his Honour took a narrow view of the requirement of appropriation and use, requiring, it would seem, actual use of virtually every part of every parcel of land in a permanent manner such as to establish "adverse dominion". For reasons earlier given, we think his Honour erred in the test which he applied to determine if the various uses and grants by the Crown created rights that were inconsistent with the continued enjoyment of native title rights. Moreover, we think that his Honour erred in not considering the Ord Project as a whole when considering the effect of its implementation upon the continued enjoyment of native title rights and interests.

419 Whilst we are of the opinion that the resumption of land under s 109, even though for a stated purpose, did not, standing alone, reveal a clear and plain intention to extinguish native title, the carrying into effect of that purpose could do so. There is a close analogy to be drawn between the effect of a reservation for a purpose, described by Brennan J in Mabo [No 2] at 68, and the resumption of land held under a pastoral lease for a purpose. Paraphrasing the statement of Brennan J, it seems to us that if a resumption is made for a public purpose other than for the benefit of the indigenous inhabitants, a right of continued enjoyment of native title may be consistent with the specified purpose, at least for a time, and native title will not be extinguished. But if the land is used and occupied for the public purpose, and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. In the present case, the several purposes for which resumptions were made under s 109 were carried into effect. The land was vested in the Minister under s 3(2) in pursuance of that purpose. Even though that vesting was of less than a full beneficial interest, for the purpose only of the management and control necessary to carry out the purpose, that management and control has been extensively exercised to implement the Ord Project, including the extensive construction of the dams, the irrigation areas, the roads, the power station and the infrastructure of the township of Kununurra and so on. In our opinion this is a use of the land for a public purpose in a manner which is inconsistent with the continued enjoyment of native title.

420 A similar conclusion follows from the application of the  Rights in Water and Irrigation Act . The provisions of  s 3(2)  are set out above. Not only the land acquired for the purpose of the Act, but all irrigation works constructed under the Act vest in the Minister. "Works" is defined in s 2 as follows:

"`Works' means works for the conservation, supply, and utilisation of water, together with all sources of supply, streams, reservoirs, artesian wells, non-artesian wells, buildings, machinery, pipes, drains, and other works constructed or erected for the purposes of this Act, and all appurtenances to the same, and all lands reserved, occupied, held, or used in connection with works."

421 Not all of the land resumed under s 109 of the Lands Act 1933 is included within the claim. The claim area does not include land which has been developed as irrigated lands or used for roads or drains, nor does it include land used for the airfield or the land resumed in 1947 for the Kimberley Research Station. Nor does the claim area include that part of the land resumed for the Kununurra Townsite, and actually used for that purpose, but it does include Reserve 37883 which is now the Mirima (Hidden Valley) National Park. This park is a substantial area which comprises the north-east portion of the land resumed and declared as the Kununurra Townsite. Within the land resumed under s 109, the claim area covers various lands which are not used for irrigated lands, roads, drains or areas within the built up area of the Kununurra township. It includes areas described as vacant Crown land on which intensive activities have not occurred, and it includes numerous reserves which have been established by the Minister for one purpose or another. However the land which is claimed is important to the overall operation of the project as it provides buffer zones, drainage, protection against erosion and flooding from higher levels, and makes provision for a range of township and community purposes, and for future expansion of the scheme. There is a substantial part of the fourth farm area resumed in 1967 in the north-eastern sector of the project area which has not yet been developed. It was resumed however for the purpose of future development which is envisaged to take place in due course with the construction of a second main channel running from Lake Kununurra, the extension of the road system including a major bridge over the Keep River, a major drainage system project to protect from run-off from the hills to the north, and the installation of an irrigated farm drain network.

422 The areas resumed were settled upon following detailed and prolonged research and engineering investigation. Regard was paid in some areas for the need to achieve rational boundaries, but we think the evidence justifies the conclusion that the areas selected were otherwise thought to be necessary to accommodate the numerous differing requirements of a project of this kind, including the need to make provision for future development and buffer zones around areas of intensive use. The areas were selected at a time well before it was appreciated that Aboriginal people may have native title claims over the land concerned, and it cannot be suggested that excessive areas were claimed for the ulterior purpose of defeating native title. With the exception only of the Mirima (Hidden Valley) National Park we consider that the land acquired under s 109 of the Land Act 1933 was reasonably required for the purpose for which it was resumed, and has been applied and used for that purpose. Even though some of the land has not been subjected to active earthworks and other development, and has not yet been irrigated, that does not mean that the land is not committed to and in use as part of the project. Earlier in these reasons we referred to dicta from Wheat v E Lacon & Co Ltd and Council of the City of Newcastle v Royal Newcastle Hospital. Those dicta support the view that land held for future expansion, and as a buffer zone, is land which is used in a relevant sense for the purposes of the project. Further, we consider that these lands, again with the exception only of the Mirima (Hidden Valley) National Park, come within the definition of "works" in the  Rights in Water and Irrigation Act . Whilst the mere vesting of lands acquired and dedicated for the purpose of the Act in the Minister may not be inconsistent with the continued enjoyment of native title rights for so long as the land remains undeveloped, once "works" are carried out, the management and control of those works "and all appurtenances to the same, and all lands reserved, occupied, held or used in connection with works" give rise to operational inconsistency which has the effect of wholly extinguishing native title rights.

423 The interests asserted by parties within the Alligator appellant group illustrate the types of uses to which the remaining areas of Crown land within the resumed areas are put by people whose activities reflect the implementation of the Ord Project. There are, on our reckoning, thirty-four parties whose properties are separated from the Ord River or Lake Kununurra by a strip of Crown land over which they pump water for their irrigation requirements (and there is evidence that there are a further six people in the same situation who are not parties to the proceedings). There are statements from twenty of these parties who depose to having their own pumps situated on Crown land for the purpose of obtaining water allocations for irrigation purposes. Further, the evidence shows there are a further thirty parties whose lands are further removed from the foreshore of Lake Kununurra, or the Ord River, who exercise their right to draw water by conveying it across Crown land. There are also mining leases permitting their holders to extract gravel from Crown lands, and there are leases for two stone crushing plants which meet the demand for gravel and aggregate.

424 With the exception of the Mirima (Hidden Valley) National Park, we consider the evidence supports the view in this case that all the land resumed under s 109 is land that was reserved, and is now occupied, held and used by the Minister, or others to whom the land has been alienated "in connection with the works".

425 We have excepted the Mirima (Hidden Valley) National Park from the foregoing conclusions. The area of this park is substantial - 2,067.9 hectares. It was included in the area declared as the Kununurra Townsite following investigations carried out in 1959 at the request of the State Government. In October 1959 the Department of Lands' Staff Surveyor reported (following a visit to the area) that major factors controlling the choice of the town site included the need to stay away from the black soil plains that would cause difficulties in erecting and maintaining buildings and providing a functional septic system, and the need for the presence of natural vegetation, particularly shade trees. The site chosen was considered to meet these, and other, requirements and to provide suitable land for expansion of the township. We are however unable to find in the evidence any satisfactory explanation for why it was thought necessary to declare so large an area as the townsite, or why it was thought necessary to include the hilly area which is now the National Park.

426 As events turned out, the township developed further to the west, and partly on land which had been resumed for the diversion dam and associated works. Geographical features, it seems, provided a natural separation of the Mirima (Hidden Valley) National Park from the developed area of the township. The establishment of the National Park was first proposed in 1967 when tourists were becoming increasingly interested in the area. It contains caves and unusual geological formations as well as a good variety of fauna, native paintings, and areas important to the Aboriginal people. The area was created as a reserve and proclaimed as a national park in 1982.

427 The actual township of Kununurra, and all its associated infrastructure, was a necessary and integral part of the Ord Project, and constitutes part of the "works" for the purposes of the  Rights in Water and Irrigation Act . However, the evidence does not establish that the area of the Mirima (Hidden Valley) National Park was at the time of the resumption, or at any time since, necessarily reserved, occupied, held or used in connection with the Ord Project, including the township itself. For this reason we think that the Mirima (Hidden Valley) National Park is to be treated differently from the rest of the land that was resumed. Whilst it was resumed for a purpose, it has not been so used or applied. Instead, it has been proclaimed as a national park. It will be necessary later in these reasons to consider the effect of that reservation and proclamation on native title as the park is within the area claimed.

428 The lands resumed under s 109 of the Lands Act 1933 from the Lissadell and Texas Downs pastoral leases were not resumed for the express purpose of the Ord River Irrigation Project, but for "for the purpose of `Government Requirements'". Nevertheless, in the context in which the resumptions occurred, it is plain that the resumptions were intended for the purposes of the  Rights in Water and Irrigation Act , and that the land vested in the Minister under  s 3(2)  of that Act. Although the proclamations for the resumption of the land from these pastoral leases were dated 9 June 1972, they were published in the Government Gazette on 23 June 1972. In the same Government Gazette, the reservation of the whole of the resumed lands for "Government Requirements" was notified. The lands now form part of Reserve 31165. The effect of these resumptions on native title is considered below.

429 We have so far dealt with land resumed under s 109 of the Land Act 1933. The acquisitions of land in 1972 and 1975 immediately to the south of the diversion dam to enable an extension of the Packsaddle Plains Irrigation Area were not effected under s 109. The notices of resumption published in the Government Gazette were headed " Rights in Water and Irrigation Act , 1914-1971; Public Works Act, 1902-1972". Both of these Acts contain separate powers for compulsory acquisition of land. Section 62 of the  Rights in Water and Irrigation Act  empowers the Minister to acquire land "within any District for the purposes of this Act". However at the date of the first of these acquisitions, the Packsaddle Plains area was not within the declared Ord Irrigation District. It may be assumed therefore that the power of acquisition in the Public Works Act was utilised, and that the  Rights in Water and Irrigation Act  was referred to as the land was being acquired for the purposes of that Act. That this assumption is correct gains support from the terms of the notices of resumption themselves.

430 The Public Works Act, s 10, empowers the Crown, the Government, or any local authority, where authorised under any Act to undertake, construct or provide any public work to acquire the land required for that purpose under the provisions of the Public Works Act. Section 17 provides for a notice to be published that certain land has been set apart, taken or resumed under the Act for the public purpose therein expressed. Section 18 provides:

"Upon the publication of the notice referred to in s 17(1) in the Government Gazette -

(1) as the Governor may direct and the case require the land referred to in such notice shall, by force of this Act, be vested in the Crown, or the local authority, for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever; and

(2) the estate and interest of every person in such land, whether legal or equitable, shall be deemed to have been converted into a claim for compensation under the provisions hereinafter contained.

Provided that the Governor may, by the same or any subsequent notice, declare that the estate or interest of any lessee or occupier of the land shall continue uninterrupted until taken by further notice."

431 The forms of notice published in respect of both the 1972 and 1975 acquisitions specify that the resumption was for the "Ord River Irrigation Project -- Packsaddle Plains Area -- Extention". Both notices declared that the land described in the notice has "been set apart, taken, or resumed" for that public work purpose and directed that:

"the said lands vest in Her Majesty for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way or other easements whatsoever."

432 In our opinion the vesting in the Crown for an estate in fee simple in possession brought about by the notices of resumption in the terms set out above had the effect that the Crown became the absolute beneficial owner of the land, and clearly and plainly evidenced an intention that any remaining native title be wholly extinguished.

433 We are unable to agree with the conclusion of the trial judge that the specification in the notices of resumption that the public work was "Ord River Irrigation Project -- Packsaddle Plains Area -- Extension" indicated that the provisions of  s 3  of the  Rights in Water and Irrigation Act  would apply to simply vest the land in the Minister on behalf of the Crown (at ALR 587-588). In our opinion it is plain from the notice of resumption that the land vested in the Minister under the Public Works Act, and that the land vested for an estate in fee simple in possession. For this reason, the resumptions in 1972 and 1975 are in our opinion distinguishable from the resumptions under s 109 of the Land Act 1933.

434 The 1971 acquisition of the Argyle Downs pastoral lease was by bargain and sale transaction, not pursuant to legislative power of resumption or acquisition. The whole of the pastoral lease then remaining was acquired. In 1968 a study group was established to consider the effect of flooding on Argyle Downs which would result from the construction of the main dam as it then appeared to the planners that "resumption of the whole station must be considered as a distinct possibility". In June 1968 the study group reported that it considered the areas of land which would remain of pastoral value after the flooding was "insufficient to be of economic use". In August 1968 the pastoral lessee was notified that the construction of the main dam would commence in March 1969 and that it was considered that "on completion of these works the land of pastoral value remaining in the lease will be insufficient to be of economic use and because of other Government requirements in the area it has been recommended that the whole of the land in the [pastoral lease] be taken over by the Crown".

435 However, by the following year the Government had decided that the whole of the Argyle Downs pastoral lease was needed in any event as, apart from the dam project itself, the area was needed for conservation and regeneration. The Under Secretary for Lands wrote:

"the area upstream of the Dam will require continuous control to limit silt movement into the basin and the application of soil conservation measures and control of stocking will be a pre-requisite of any leasing of this land." (Exhibit 23, p 23)

436 With very minor exceptions the whole of the land resumed from the Argyle pastoral lease is the subject of the claim. The areas around the main dam, around the spillway constructed some kilometres to the east, along the Ord River between the main dam and Lake Kununurra, and in the spillway tributary are plainly integral parts of the Ord Project. So too is Lake Argyle itself, including the areas subject to periodic maximum flooding. There are other areas in the north-east, north-west and west of the former pastoral lease where the relationship between the land and the operation of the Ord Project is not so readily apparent. Nevertheless, most of this land falls within the catchment area of either Lake Argyle or Lake Kununurra, and now all falls within the Ord Irrigation District. The south-east portion of the land is now included in Reserve 31165, the same reserve which incorporates the areas resumed from the Lissadell and Texas Downs pastoral leases in 1972. This reserve includes areas susceptible to inundation at times of maximum flood.

437 As the pastoral lease was acquired under a bargain and sale transaction, there has been no declaration of the purpose of the acquisition under any Act. However the trial judge noted that it appeared to be accepted that the land was acquired for the purposes of the  Rights in Water and Irrigation Act . As a matter of fact that was plainly so as the pastoral lease was required for the construction of the main dam, the centrepiece of the Ord Project. The trial judge found, and we agree, that the land, when acquired, vested in the Minister under  s 3(2)  of the  Rights in Water and Irrigation Act .

438 The State contends that the acquisition of the Argyle Downs pastoral lease by contract, or alternatively the vesting of the lands in the Minister pursuant to  s 3(2)  of the  Rights in Water and Irrigation Act  totally extinguished native title. The State contends that despite the form of the transaction, the purchase by the lessor of the lessee's unexpired term resulted in the expansion of the Crown's title to full beneficial ownership so that the leasehold and reversionary interests merged. Unless this was so, the State contends that legally unacceptable consequences would follow, namely that the law would have to recognise the Crown both as lessor and lessee of the same land, the Crown would be bound as lessee to use the land only for pastoral purposes, and the lease's terms as to rent and other obligations would become a nonsense. We are unable to accept that submission. As we have already observed, the statement of Brennan J in Mabo [No 2] at 68 regarding the expansion of the Crown's radical title into a plenum dominium was rejected by four members of the High Court in Wik. It was there pointed out that pastoral leases are a creature of statute which operate without the creation in favour of the Crown of what at common law would be regarded as a reversionary estate: Wik at 129 per Toohey J, at 155 per Gaudron J, at 189 per Gummow J, and at 224-225 per Kirby J. Prior to the acquisition, the pastoral leases were Crown land, and they retained that character after the transaction. In our opinion the effect of the transaction was merely to terminate the pastoral lease so that the land was no longer subject to the interests granted to the pastoral lessee. The radical title of the Crown remained burdened by whatever native title rights and interests survived the former grant of the pastoral lease. Rights which had been extinguished prior to the acquisition, whether by the earlier grant of the pastoral lease or otherwise, were not revived. Once those rights were extinguished, they were forever destroyed: see Fejo.

439 We consider that upon the acquisition of the interests of the pastoral lessee, and the vesting of the former Argyle Downs lands in the Minister under  s 3(2)  of the  Rights in Water and Irrigation Act , the surviving native title rights remained, but were susceptible to extinguishment in the event of use and occupation of the land for the public purpose giving rise to an operational inconsistency in the manner already discussed in relation to the land resumed from the Ivanhoe pastoral leases under s 109. We have earlier indicated our view that the mere declaration of the Ord Irrigation District is not in itself sufficient to extinguish native title. It appears to us that there are large parts of the former Argyle Downs pastoral lease, including the areas which are now inundated by water, which clearly form lands and "irrigation works" which are an integral part of the Ord Project such that administrative management and control give rise to operational inconsistency that wholly extinguishes native title.

440 During the construction phase there were a number of houses built in the area of the main dam used by Government employees and contractors. There was also a laboratory building, an area set aside for construction works, a rubbish disposal area and so on. Following the completion of the construction, the houses and the laboratory have been put to other uses. Included within the Alligator appellant group are parties who occupy those houses (save for one that has been demolished) and the laboratory building which is now used as a fish packing factory by Lake Argyle Industries Pty Ltd along with an adjoining yard. The Alligator appellant group contain parties who carry on a range of activities in and around Lake Argyle which are of a kind that require close management and control by the Water Corporation, namely the activities of the holders of a barramundi fish farm licence, fishing boat licences, a ferry licence, and licences to operate float aircraft. Further, there are extensive tourist activities in the area. All these human activities are required to be managed and regulated as an integral of the overall Ord Project.

441 There may be areas, for example, in the north-east, north-west and western portions some distance removed from Lake Argyle where the requirements of management and control are perhaps not so obvious. But it does not follow that these should not be treated as, in truth, part of the Ord Project, with the consequent inconsistency with native title rights we have attributed to the other areas more obviously within the parameters of the Ord Project. Here also, the reasoning in the Newcastle Hospital Case is in point. Moreover, it must be borne in mind that the north-east and other portions we have just mentioned were acquired by the Minister, and used, for the purposes of the  Rights in Water and Irrigation Act ; and it is not suggested that this vesting, or use, was for any other purpose (see Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566).

442 Against this conclusion it may be argued that the Crown has created reserves within this area for purposes that do not appear to be inconsistent with the continued enjoyment of native title rights. To take one example, in 1990 Reserve 41273 was created and vested in the Shire, with power to lease subject to the Minister's consent, for "Recreation" purposes. The reserve is a five hectare site near Lake Argyle which is now used by the Ord River Yacht Club. The land is open bushland. However, the creation of the reserve for recreation purposes, and the use of it by the Yacht Club is not, in our opinion, inconsistent with the conclusion that the degree of management and control necessary over that area as part of the Ord Project is such as to wholly extinguish native title. With a project of this kind it can be expected that at times parts of the land will be put to a variety of uses, including recreation, which, as a matter of fact, are not only consistent with some of the traditional activities of the indigenous inhabitants of the area, but may even bear a close similarity to them. However, there remains an operational necessity for the Crown to have the legal right of complete control, to be exercised as and when necessary over human activity in the area, whether by members of the general public or by members of an Aboriginal community.

443 The south and south-eastern portions of the former Argyle Downs pastoral lease beyond the flood levels of Lake Argyle, and the lands resumed from Lissadell and Texas Downs are now Reserve 31165 being lands reserved for "Government Requirements". In these areas strict controls are necessary to manage the erosion and to limit the concentration of grazing activities on those parts where grazing is permitted. In our view, even though some of this land is now leased for grazing purposes under strict terms that permit the Water Corporation to control the use of the land, the whole of it has been appropriated to the use of the Ord Project with the consequent inconsistency with native title rights. In our opinion native title rights are now wholly extinguished throughout this area.

Use of reserves

(i) Townsite reserves

444 The trial judge considered whether the creation of individual reserves within the townsite (and also within the balance of the resumed areas) and whether the actual use of each of them, brought about extinguishment. His Honour conducted that exercise against the background of his finding that there could not be partial extinguishment of native title rights, and that extinguishment of native title would occur only where a permanent use gave rise to "adverse dominion". The conclusions about individual reserves reached by his Honour cannot be upheld in light of the conclusions which we have already expressed. In our opinion native title was partially extinguished in the resumed areas by reason of the grants of the pastoral leases, and the remaining native title was wholly extinguished in respect of all the areas resumed under s 109, save for the Mirima (Hidden Valley) National Park, in the Packsaddle Irrigation Area resumed under the Public Works Act and in land formerly within the Argyle Downs pastoral lease.

445 In light of this conclusion it is unnecessary for us to address each of the reserves in these areas, particulars of which are discussed by the trial judge at ALR 589-596. It is necessary however that we refer to three matters.

446 The first matter is Reserve 37883, Mirima (Hidden Valley) National Park. When that land was resumed from the Ivanhoe pastoral lease, the exclusivity of native title rights had already been extinguished by the grant of the pastoral lease. That extinguishment removed the exclusive right to control the use of the land. The proclamation of the Mirima (Hidden Valley) National Park classified the land as Class A under s 31 of the Land Act 1933, and the reserve was vested in the National Parks Authority (now the National Parks and Nature Conservation Authority). As a reserve classified as Class A, the land, by s 31(1)(a), is to remain dedicated to the declared purpose of a national park unless and until Parliament otherwise specifies. Sections 42 and 43 of the current Land Administration Act 1997 (WA) contain a similar restriction. In Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404 at 462 Higgins J said:

"...there is no doubt, to my mind, that both expressions, `dedicate' and `set apart' - `for some public use' - connote the giving to the public of some rights in the land which subtract from the Crown's full ownership; the appropriation of the land for some definite public purpose, not for public purposes generally; and for some estate or interest better than at mere will."

See also Randwick Corporation v Rutledge at 74 per Windeyer J. The dedication of the land as a Class A reserve, to the extent that it created rights in the public, would also have the effect of extinguishing the exclusivity of native title rights to possess, occupy, use and enjoy. Under the National Parks Authority Act 1976 (WA), s 22 required the authority to prepare a detailed written program, the objects of which were to include "the public utilisation, and the maintenance, study, care and restoration of the natural environment, the conservation of the indigenous flora and fauna, and such other matters as the Authority recommends and the Minister approves". Section 41 permitted the Authority to make regulations giving effect to the Act. Regulations were promulgated in 1977 which prohibited, without express permission from the Authority, such things as entry to the park except through provided access; entry to a cave; taking or injuring of flora; taking or disturbing fauna, except fish where it is for personal consumption; carriage of any weapon or means of taking fauna; the lighting of fires except in a stipulated fireplace in picnic and camping sites; marking of rocks; removal of earth, stone or gravel; camping in other than camping areas; and erection of permanent or semi-permanent structures. These regulations stringently control and regulate activities that may be carried out in the park. However, we do not think that the stringency of the regulations reaches the point of prohibition: see Yanner at 269. Stringent regulation alone is not sufficient to manifest a clear and plain intention that native title rights in respect of the land be wholly extinguished. Their enjoyment will be significantly curtailed as Aboriginal people are, like everyone else in the community, obliged to comply with the regulatory regime, but it is to be noted that the regulations permit otherwise prohibited activities to be conducted with the permission of the Authority which leaves room for the sensible accommodation of customary Aboriginal practices.

447 The second matter that requires mention is an area designated as Reserve 40260. This small area of land adjoins the south-east corner of the land resumed for the Kununurra townsite. Aboriginal people from outside the area of the Ord Project requested the reservation of an area of land for their use. Cabinet agreed to the creation of a reserve which was proclaimed in 1987. It is immediately to the east of the land declared for the Kununurra townsite and adjoins Reserve 1063. It was then discovered that the small area, now Reserve 40260, had not been resumed from the Ivanhoe pastoral company. It was then resumed and created as a reserve for "Use and Benefit of Aboriginal Inhabitants", and vested in the Aboriginal Lands Trust. This is not land that was resumed for or was part of the Ord Project. The reservation for "Use and Benefit of Aboriginal Inhabitants" is inconsistent with an intention to extinguish native title rights.

448 The third matter concerns the operation of s 47A of the NTA. Relevant to the circumstances of this case, s 47A(1) and (2) provide that where at the time a claimant application in relation to an area is made, the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of Aboriginal people, and one or more members of the claim group occupy the area, prior extinguishment caused by the creation of other prior interests is to be disregarded. Before the present claim was made, a number of reserves were created in parts of the lands resumed for the Ord Project under s 109, or in the former Argyle Downs pastoral lease, namely:

Reserve 26600 - "Natives-Camping" (1963), later changed to "Use and Benefit of Aboriginal Inhabitants" (1986);

Reserve 31221 - "Orchard and Horticultural Development" (1972), later changed to "Use and Benefit of Aborigines" (1975);

Reserve 31504 - "Arts and Historical - Aborigines" (1972), later changed to "Use and Benefit of Aboriginal Inhabitants - (Arts and Historical") (1983);

Reserve 32446 - "Native Paintings" - (1974);

Reserve 40536 - "Use and Benefit of Aboriginal Inhabitants" (1988); and

Reserve 41401 - "Use and Benefit of Aboriginal Inhabitants" (1990).

449 We think a broad view should be taken of the word "occupy" in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so. Although there is no finding by the trial judge on this topic, it seems to us that the evidence justifies the conclusion that one or more of the claimants occupied these reserve areas and that the claimants are entitled to the benefit of the non-extinguishment principle in relation to these reserves. There is a dispute about this in the case of Reserve 40536 as many Aboriginal people living there are said by the State to come from the Territory. However, there is evidence that at least Danny Wallace, a Miriuwung person, lives there, and that other Miriwung people go there for traditional purposes, e.g. to collect bamboo. The Statement of Agreed Facts states that "[s]ome of the Aborigines who continue to reside on Reserve 40260 are neither Miriuwung or Gajerrong" which implies that the others are Miriuwung or Gajerrong.

450 However it is necessary to consider the operation of s 47A(3)(a)(iii) which provides that a favourable determination of native title does not affect:

"...any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned...."

451 "Public works" is an expression defined in s 253 of the NTA and includes a major earthwork established by or on behalf of the Crown, a local Government body or other statutory authority of the Crown in any of its capacities. A reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work: see s 251D.

452 The Ord Project involved the construction or establishment of major earthworks. In our opinion all the lands resumed under s 109 of the Land Act 1933, and the Public Works Act, and the former Argyle Downs pastoral lease, come within the meaning of "public works on the land...concerned", just as they come within the meaning of "irrigation works" under the  Rights in Water and Irrigation Act . Section 47A(3)(a)(iii) therefore has the effect that a determination of native title in favour of the claimants in relation to lands within the above reserves does not affect the interest of the Crown or any statutory authority in the Ord Project.

(ii) Other reserves

453 The trial judge considered other reserves at ALR 596-612. Insofar as these reserves fall within the lands resumed from the Ivanhoe pastoral leases and in the former Argyle Downs pastoral lease in connection with the Ord Project, for reasons already given, we consider that native title has been wholly extinguished by the implementation of the Ord Project. However a number of the reserves lie outside that area and it is necessary to deal with them. Further, a number of these reserves have been the subject of leases or licences. The effect of those transactions are separately considered after the discussion of reserves.

454 Reserve 1058 - "Public utility". This reserve is outside the determination area.

455 Reserve 1059 - "Public utility". This reserve was created in 1886, and is located near Goose Hill. The area of this reserve is approximately 1816 hectares, and it seems that the reserve was intended as a watering point for cattle on the stock route. There is evidence that it was used as a cattle depot including a dipping site, and an inn for stockmen and travellers was erected on this reserve: see Reserve 34724 below. The area was previously included in a pastoral lease. In 1970 the purpose of the reserve was changed to "Water and Conservation of Fauna". More recently this area has become part of Reserve 42155 save for the area in Reserve 34724. The general use of the area for watering cattle, and as a pastoral lease destroyed the exclusivity of native title rights. The close use of the area which is now Reserve 34724 would have wholly extinguished native title in that area.

456 Reserve 1060 - "Public utility". This reserve was created in 1886 and used as a watering point for cattle on the stock route to Wyndham. The reserve area is approximately 987 hectares. It is not clear whether this land was ever the subject of a pastoral lease. The reserve is on the north bank of the Ord River, and is surrounded by land from the Carlton Hill pastoral lease. A stock watering dam is the only development on a small portion of the reserve. The trial judge held that neither the creation of the reserve nor its use for the reserve purpose effected extinguishment of native title. In our opinion however the creation and use of the reserve had the effect of extinguishing the exclusivity of the native title right to possess, occupy, use and enjoy the land, and to this extent had the same effect on native title as a pastoral lease.

457 Reserve 1061 - "Public utility". This reserve was also created in 1886 and comprises approximately 3,000 hectares situated on the Ord River south-west of reserve 1060. The reserve included a crossing point over the Ord River and was used for a similar purpose to reserve 1060. We consider that the creation of the reserve had the same effect on native title as the creation of reserve 1060, and it is immaterial whether the land was the subject of a pastoral lease prior to its proclamation. Reserve 1061 now incorporates an area once separately reserved as Reserve 1164 for the same purpose.

458 Reserve 1062 - "Public utility". This is another reserve created in 1886 as a watering point on the stock route to Wyndham. It is of approximately 458 hectares situated on the Ord River north of Kununurra, known as Buttons Crossing. The creation of the reserve has the same consequence on native title as the creation of Reserve 1060. More recently, as the reserve is near Kununurra, it has been used by Kununurra residents and tourists for access to fishing areas and for boating. These public uses are treated as consistent with the reserve for "public utility". These uses do no more than indicate that the use and enjoyment of the land is to be shared with members of the public, demonstrating the extinguishment of the exclusivity of native title rights.

459 Reserve 1063 - "Agricultural Research Station". This reserve was created in 1886 for similar purposes as the three preceding reserves, for "Public utility", with the same consequence upon native title. In 1968 the purpose of the reserve was changed to "Cattle Experiments (Department of Agriculture)" and the land was used by the Kimberley Research Station. In 1983 the purpose of the reserve was changed to "Agricultural Research Station" and the reserve vested in the Minister of Agriculture. The reserve is largely undeveloped. It is surrounded by the Ivanhoe pastoral lease on three sides, and on the fourth side adjoins the land that was declared as the Kununurra townsite. There is nothing about the use of the land since 1968 that brought about any further extinguishment of native title over and above the use which occurred when the area was a "Public utility" reserve.

460 Reserve 1064 - "Public utility". This was another reserve created in 1886 on the stock route. The land was resumed from a pastoral lease. The reserve has since been cancelled. The reservation and use of land had no greater effect on native title than the pastoral lease. Both extinguished the exclusivity of native title rights.

461 Reserves 1165 and 1166 - "Public utility". These reserves were created in 1886 for purposes connected with the stock route with the same consequences for native title as Reserve 1064.

462 Reserve 1600 - "Public purposes". This reserve, created in 1890, is outside the determination area, and in any event is now included within Reserve 42155 - "Conservation of Flora and Fauna".

463 Reserve 2049 - "Public utility". Created in 1892 in connection with the stock route, it adjoined Reserve 1059. The purpose of the reserve was changed to "Travellers and Stock" in 1919. It was formerly part of a pastoral lease. The exclusivity of native title rights has been extinguished. Its use as Reserve 2049 did not further affect native title. It is now part of Reserve 42155.

464 Reserve 8662 - "Resting place for Travellers and Stock". This reserve created in 1901 is within the area resumed under s 109 of the Land Act 1933 for the Ord Project and native title is wholly extinguished for that reason.

465 Reserve 8663 - "Resting place for Travellers and Stock". Created in 1901 and cancelled in 1994, this land falls in the same category as Reserve 1064.

466 Reserve 14370 - "Resting place for Travellers and Stock". This reserve was resumed for pastoral leases and reserved in 1912. It later became part of the land subject to the Permit to Occupy granted to the Wyndham Freezing, Canning and Meat Export Works in 1918 and for that reason, as enunciated earlier, is an area in which native title has been wholly extinguished.

467 Reserve 16729 - "Use and Requirements of the Government of the State". This reserve, created in 1918, which is partly within the claim area, has been discussed under the heading "Permit to occupy Crown land prior to issue of Crown grant". The area became the subject of the permit to occupy granted to the Wyndham Freezing, Canning and Meat Export Works which wholly extinguished native title.

468 Reserve 18810 - "Tropical Agriculture". This reserve of 4,645 hectares was created in 1924. Prior to that it was the subject of pastoral leases. It is contiguous with land of the Ivanhoe pastoral lease. The area is also referred to as King Locations 736 and 744. It is not suggested that the land has ever been used for tropical agriculture. It has been the subject of leases under ss 32 and 116 of the Land Act 1933. In recent years it has formed part of a lease to Crosswalk. The significance of those leases on native title is considered below. The creation of the reserve and its use otherwise than by the lessees did not extinguish native title rights that survived the grant of pastoral leases.

469 Reserves 21316 and 22256 - "Stock Route". Created in 1934 and 1941 in the Goose Hill area. Exclusivity of native title had been extinguished by early grants of pastoral leases and then by use for the reserved purpose. They are now included in Reserve 42155.

470 Reserve 21422 - "Aborigines". This reserve created in 1935 and cancelled in 1956 is also in the Goose Hill area and is largely outside the determination area. Use for the reserved purpose would not have extinguished native title. However the grant of an early pastoral lease would have extinguished the exclusivity of native title. The area is now within Reserve 42155.

471 Reserve 29541 - "Wildlife Sanctuary". This reserve covers Ngarrmorr (Pelican Island). It was created in 1968 and vested in the Western Australian Wildlife Authority (now the National Parks and Nature Conservation Authority). It is a pelican breeding area, and the name "Pelican Island Nature Reserve" was applied in 1979. The relevance of regulation concerning the conservation of wildlife and flora is discussed separately below. Apart from the effect which that legislation may have on native title, there is nothing about the creation or subsequent use of this reserve which affects native title.

472 Reserve 30866 - "Protection of Flora and Fauna". This reserve was created in 1971 and named the "Palm Springs Nature Reserve" in 1982. It is now part of Reserve 42155. The creation and use of Reserve 30866 raises no issues which are not raised in relation to Reserve 42155.

473 Reserve 31165 - "Government Requirements". This is the reserve created in 1972 surrounding the southern limits of Lake Argyle, taking in the lands resumed from Lissadell and Texas Downs, and the south-east portion of the former Argyle Downs pastoral lease. The purpose was to control erosion and land use in the lands close to areas flooded by Lake Argyle. We have already discussed this reserve and expressed our conclusion that the appropriation of this land after its acquisition and resumption to the Ord Project has wholly extinguished native title throughout the area. Part of this reserve is presently leased to Baines River.

474 Reserve 31636 - "Conservation of Fauna". Created in 1972 this reserve was named "Parry Lagoons Nature Reserve" in 1982. It is now part of Reserve 42155. The creation and use of Reserve 31636 raises no issues which are not raised in relation to Reserve 42155 (see below).

475 Reserve 31967 - "Conservation of Flora and Fauna". This reserve was created in 1973 and vested in the West Australian Wildlife Authority (now the National Parks and Nature Conservation Authority). The area covers the mud flats and inter-tidal zones on the eastern and northern edges of the Gulf, and was reserved to protect the mangrove wetlands and wildlife including the saltwater crocodile. It is a nominated area (a "Ramsar" site) under the Convention on Wetlands of International Importance Especially as Waterfowl Habitats, 1975, which involves international obligations for the protection of habitats of migratory birds.

476 The trial judge concluded that there was uncertainty as to the extent, if any, to which any part of the reserve was formerly part of pastoral leases granted in the latter part of the last century. Presently, the boundary of pastoral leases is forty metres from the high water mark. It seems that if pastoral leases ever covered this area, it was due to the fact that the true boundaries were not then known and estimated boundaries encroached into these areas which are quite unsuitable for pastoral purposes. There being no satisfactory evidence that the pastoral leases did so extend, the determination should be made on the basis that they did not. However, now being an area vested in the National Parks and Nature Conservation Authority, the area, and the exercise of native title rights, is subject to the legislative regime applying to reserves of this kind. The effect of that regime on native title is considered under the topic of "Conservation of Wildlife and Flora", below.

477 Reserve 34585 - "Conservation of Flora and Fauna". This reserve of 303 hectares is situated outside, but on the northern boundary of, the fourth farm area resumed under s 109 of the Land Act 1933. The reserve is vested in the National Parks and Nature Conservation Authority and in 1982 was named the "Point Spring Nature Reserve". The reserve surrounds a natural water supply and a small area of rain forest, and contains a rare species of wallaby and a colony of bats. Since it was reserved, the land has been fenced off from the pastoral lease to exclude cattle. The grant of the Ivanhoe pastoral lease extinguished the exclusivity of native title. However, native title is now subject to the control arising under conservation legislation considered under "Conservation of Wildlife and Flora", below.

478 Reserve 34724 - "Preservation of Historic Relics". This reserve was created in 1977, and is located near the western boundary of the Ord Irrigation District, near Goose Hill. The reserve is a remnant of the former Reserve 1059 and is the area around the ruins of an early depot consisting of a chimney, fireplace and cattle dip in respect of which we have held that native title was wholly extinguished by inconsistent use.

479 Reserve 35289 - "Natural Regeneration". We have earlier referred to this reserve which is situated to the west and south of the irrigated areas of the Packsaddle Plains area. The northern section of this reserve is part of the land acquired under the Public Works Act 1902. To the south of that land, extending for about four kilometres, the reserve comprises part of the former Argyle Downs pastoral lease. The "natural regeneration" purpose of the reserve was to exclude cattle, prevent and control erosion, and to drain run-off water to the Dunham River on the northern border of the reserve. We have concluded above that the appropriation of this land to the Ord Project has wholly extinguished native title.

480 Reserve 36551 - "Irrigation". This reserve, created in 1980, contains the spillway and the water course down which the outflow from the spillway returns to the Ord River. The reserve is vested in the Water and Rivers Commission. The area of the reserve is 800 hectares of open land near Lake Argyle. Although the proclaimed purpose of the reserve was "Irrigation" it is said that the reserve is used to control activities at the spillway and the creek, involving, principally, camping and white water rafting. This is necessary as the waterway at times carries high flows which can be dangerous, and there is also a need to minimise erosion of the banks. This reserve is within the area encompassed by the former Argyle Downs pastoral lease. The appropriation of this land to the Ord Project has wholly extinguished native title.

481 Reserve 38955 - "Trigonometrical Station Site". This reserve was created in 1984 and occupies one hectare surrounding a bronze survey plaque set in concrete, and a stone cairn erected over the mark in 1967. It forms part of the State survey system. It is land that has never been the subject of a pastoral lease. The creation and use of the reserve does not affect native title.

482 Reserve 39016 - "Repeater Station Site". The trial judge held that native title in this small reserve near Goose Hill, vested in the Australian Telecommunications Commission had been wholly extinguished by inconsistent use. There is no cross appeal against that finding.

483 Reserve 40260 - "Use and Benefit of Aboriginal Inhabitants". We have already discussed this reserve which falls just outside, and to the east of, the land resumed for the Ord Project under s 109 of the Land Act 1933. The creation and use of the reserve has not affected the non-exclusive native title rights which survived the grant of the earlier pastoral lease. By force of s 47A of the NTA the partial extinguishment of native title rights brought about by the grant of pastoral leases must now be disregarded in respect of land within this Reserve.

484 Reserve 40978 - "Repeater Station Site". This reserve was created in 1989 and vested in the Australian Telecommunications Commission. It is a small area situated north of Lake Argyle near the Victoria Highway. The trial judge held that the use of the reserve wholly extinguished native title and there is no cross appeal against that finding.

485 Reserve 41617 - "Recreation". This reserve was created in 1991 from land resumed from the Ivanhoe pastoral lease which surrounds it. The reserve is an area of 61.5 hectares, situated about ten kilometres south-east of Kununurra. Prior to the creation of the reserve, the land was informally used by a pony club for equestrian activities. This reserve is outside the area resumed under s 109 of the Land Act 1933 and the Public Works Act 1902. Neither the creation of this reserve, or the fact of use by a pony club give rise to inconsistency with the exercise of non-exclusive native title rights.

486 Reserve 42155 - "Conservation of Flora and Fauna". This reserve was created in 1992 and occupies approximately 36,111 hectares incorporating the Goose Hill area. The reserve is vested in the National Parks and Nature Conservation Authority. Only part of this reserve is within the determination area as the trial judge held that the western portion, around Parry Lagoon, was not Miriuwung or Gajerrong territory. In our opinion the mere creation of the reserve, and the vesting of the reserve in the Authority did not wholly extinguish native title, but it remains to consider the effect of control arising under conservation legislation.

487 The land within this reserve has a long history. It was initially blanketed by early pastoral leases. Then in 1886 Reserve 1059 was declared in respect of part of the area, and within Reserve 1059, as we have earlier indicated, yards, buildings and a cattle dip were erected which had the effect of wholly extinguishing native title in that portion of the reserve which is now Reserve 34724. Subsequently Reserve 2049 was declared for the same purpose, and with the same effect on native title, as Reserve 1059. These two reserves were in the northern portion of the area now comprising Reserve 42155. The area to the west of Reserves 1059 and 2049 then became the subject of a special lease, then parts of the land became subject to conditional purchase leases, and a reserve set aside for a resting place for stock. Then the whole of the land to the west of Reserves 1059 and 2049 within the determination area, including the areas formerly subject to the conditional purchase leases and the reserve for a stock resting place, became the subject of the 1918 grant of the Permit to Occupy Crown Land prior to the issue of a Crown grant held by the Wyndham Freezing, Canning and Meat Export Works. We have earlier expressed our view that this permit had the effect of wholly extinguishing native title over that area. Ultimately, notwithstanding the permit, a Crown grant did not issue. In 1971 most of that portion of the area was set aside as a reserve (Reserve 30866) for the protection of flora and fauna, and another reserve (Reserve 31636) for the conservation of fauna was created in 1972 in respect of part of the southern area of the land which is now wholly covered by Reserve 42155.

488 In summary, within the area now covered by Reserve 42155, native title in Reserve 34724 - "Preservation of Historical Relics" - is wholly extinguished, as is native title in that portion of the reserve which was the subject of the Permit to Occupy. In respect of the balance of the land the exclusivity of native title was extinguished by the early pastoral leases, and also by the reserves created in 1886 for stock resting and watering points. The effect on native title of the conservation legislation is considered below.

489 Reserve 42710 - "Quarantine Checkpoint". This reserve was created in 1993 and is now vested in the Agriculture Protection Board of Western Australia. It comprises an area of 45.4 hectares situated on the State/Territory border. Facilities have been constructed on the reserve. Such facilities were constructed before the present reserve was proclaimed, but at the time the land was reserved for "Government Requirements", and the facilities were for that purpose. The trial judge held that the creation of the reserve did not have the effect of extinguishing native title, but the use of part of the reserve for the facilities did so. The Second Schedule records that native title is extinguished in "that part of reserve 42710 (`Quarantine Checkpoint') on which ablution blocks, a parking area, power generator, fuel and water tanks, a tourist information shelter, a shed and facilities for the Quarantine Checkpoint have been constructed".

490 We agree with his Honour's conclusions that the creation of the reserve did not, in itself, extinguish native title rights, although the prior pastoral lease over this area had the effect of extinguishing the exclusivity of those rights. However, we consider that native title has been wholly extinguished by the use of the land for the reserved purpose. In our opinion extinguishment is not confined to the small areas actually covered by the facilities that have been erected, but extends to the whole reserve.

491 Reserve 43140 - "Power Station". This small reserve covers the area occupied by a power station constructed in 1969 to supply electricity during the construction of the main dam. His Honour held that native title was wholly extinguished in this area, and there is no cross appeal against that finding. It is within the area of the former Argyle Downs pastoral lease.

492 Reserve 43196 - "Water Supply and Electricity Generation". This reserve was created in 1994, and is vested in the Water Corporation. The area is approximately 234 hectares. The area contains the main dam, the hydro-electric power station, water outlets from the dam, access roads near the dam, the Ord River downstream from the dam, picnic area facilities, boat mooring and launching facilities in the dam, and an area covered by part of the dam which includes the area known as Coolibah Pocket. Although the reserve was not created until 1994, the main dam and associate works were constructed between 1969 and 1972. His Honour held that the carrying out of the works on the land, before the acquisition of the Argyle Downs pastoral lease, had the effect of excising the land from the pastoral lease for the purpose of the Ord Project, and the construction of the works, being of a permanent nature, had the effect of extinguishing native title in respect of that part of the land utilised by the Crown. However his Honour held that the reserve is substantially larger than the land on which the works were constructed and adjacent land required for the purpose of the works. In respect of the balance of the land his Honour held that native title had not been extinguished. We are unable to agree with this narrow view as to use taken by his Honour. For the reasons given above, we consider native title rights which survived the former pastoral lease were wholly extinguished by the appropriation of the land acquired from Argyle Downs to the Ord Project.

Legislation

(i) Conservation of wildlife and flora

493 The Wildlife Conservation Act 1950 (WA) (formerly the Fauna Protection Act 1950 (WA)) (and the Fauna Conservation Act 1950 (WA)) in s 14(1) provides:

"Except to the extent which the Minister declares by notice published in the Government Gazette pursuant to the provisions of this section all fauna is wholly protected throughout the whole of the State at all times."

494 Under s 14(2) the Minister may from time to time declare that any of the fauna is not protected or is protected to such extent for such period of time throughout the whole or such part or parts of the State as he thinks fit. The Minister is also empowered to declare a closed season or an open season in respect of any of the fauna, and place restrictions on either the taking or disposal of fauna. Section 15 makes provision for the grant of licences to take fauna. Section 16 makes it an offence for any person to infringe the protection conferred by s 14(1) or (2) by taking fauna while protected otherwise than by the authority of a licence. Section 22 provides:

"(1) The property in fauna, until lawfully taken is, by virtue of this Act, vested in the Crown.

(2) The provisions of the last preceding subsection do not entitle any person to compensation."

495 Section 23 provides that notwithstanding any other provisions of the Act a person who is a "person of Aboriginal descent" according to the interpretation in s 4 of the Aboriginal Affairs Planning Authority Act 1972 (WA) may take fauna or flora upon Crown land or upon any other land not being a nature reserve or wildlife sanctuary, but where occupied, with the consent of the occupier of that land, sufficient only for food for himself and his family but not for sale. A "nature reserve" means an area of land reserved by the Crown for the conservation of fauna or flora.

496 Included in the reserves in the claim area are Reserve 29541 - "Wildlife Sanctuary", Reserve 31967 - "Conservation of Flora and Fauna", Reserve 34585 - "Conservation of Flora and Fauna" and Reserve 42155 - "Conservation of Flora and Fauna". The latter reserve replaced Reserve 30866 and Reserve 31636 which had earlier been declared for conservation of fauna in the Goose Hill area. It is accepted that these reserves are nature reserves for the purpose of s 23 of the Wildlife Conservation Act.

497 The State contends that the foregoing provisions completely extinguished native title in the land contained in these reserves by depriving Aboriginal people of the right to gain sustenance from the land. The trial judge rejected this submission on the basis that the statutory provisions were regulatory in nature, were directed at the conservation of flora and fauna, not to the extinguishment of native title, and that particularly having regard to the recognition of an Aboriginal right to take fauna in s 23 did not evidence a clear and plain intention to extinguish native title.

498 The State has repeated its contention before this Court. The decision in Yanner has also been handed down in the meantime.

499 In Yanner, the Court considered the meaning of s 7(1) of the Fauna Conservation Act 1974 (Qld) which provided "All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority". The majority held that s 7(1) vested in the Crown no more than the aggregate of the various rights of control by the executive that the legislation created. The ownership was less than the rights of full beneficial, or absolute ownership, and the vesting of "property" in the Crown did not extinguish native title. The State seeks to distinguish Yanner on a number of grounds, including textual differences between the Fauna Conservation Act (Qld) and the Wildlife Conservation Act. It is true that there are a number of differences, but there are also a number of similarities. Of the several reasons identified by the majority to conclude that the "property" conferred on the Crown by s 7(1) is not accurately to be described as full beneficial or absolute ownership, the following apply to the Wildlife Conservation Act. First, the definition of "fauna" includes migratory birds and fauna that may move over State boundaries: cf Yanner at 265. Secondly, the subject matter dealt with in the Wildlife Conservation Act, with limited exceptions, is intended by the Act to remain outside the possession of and beyond disposition by humans. Thirdly, it seems that the provisions in the Western Australian legislation regarding the vesting of property in the Crown were introduced to support provisions in the legislation imposing a royalty on the skins of animals: see s 18, and Yanner at 266-267. These factors persuade us that the vesting of property in fauna in the Crown under s 22 of the Wildlife Conservation Act was for the purpose only of passing such powers of control and management and such proprietary interest as was necessary for the administration of the Act: see Attorney-General for Quebec v Attorney-General for Canada at 409, cited by Gummow J in Yanner at 285. As the vesting of such property in the Crown was not absolute, the State's submission that the Act should be interpreted as a plain and clear intention to wholly extinguish native title fails.

500 The Fauna Conservation Act 1974 (Qld) did not contain a provision, like s 23 of the Wildlife Conservation Act 1950 (WA) which excepted from the general prohibition against taking fauna a right in Aboriginal people to enter upon land and to take fauna sufficient for sustenance purposes. That exemption is a further reason to hold that the Wildlife Conservation Act is not a law which generally extinguishes native title rights to take fauna. However, s 23 by its terms does not exempt Aboriginal people from the prohibition against taking fauna in a nature reserve or wildlife sanctuary. Within such a reserve or sanctuary the prohibition is complete subject only to the other provisions of the Act.

501 In 1967 s 12A was added to the Wildlife Conservation Act which empowered the Western Australia Wildlife Authority, with the approval of the Minister to classify or reclassify nature reserves or parts thereof as either prohibited areas, limited access areas, shooting or hunting areas, unlimited access areas, or such other classes of area as the Authority thought necessary for the purpose of giving effect to the objects of the Act. This section, together with s 15 which is not, by its terms, restricted to granting licences only in respect of areas outside nature reserves, indicated that there may be circumstances in which fauna may be taken within a nature reserve.

502 Section 12D required the Authority in respect of any land of which it is owner to cause to be prepared a detailed written scheme of the operations that the Authority proposes to undertake in relation to the area.

503 Under regulations promulgated in 1970 and amended in 1976, regulation 42(2) applies to the nature reserves relevant to this case. It provides:

"(2) (a) A person shall not take any fauna, whether protected or not protected, on any nature reserve unless authorised to do so by the Conservator of Wildlife.

(b) The Conservator of Wildlife may not give such authority except -

(i) on the recommendation of the Authority pursuant to s 12E of the Act or in accordance with the terms of an approved management scheme or operations or working plan prepared pursuant to s 12D of the Act;

(ii) in the case of a sanctuary or part thereof classified as a shooting or hunting area pursuant to the provisions of the Act, he may issue the appropriate licence to take game in accordance with these regulations; or

(iii) in the case of an animal declared to be a declared animal under the Agriculture and Related Resources Act 1976, he may issue the appropriate licence for its destruction subject to such conditions as he thinks fit."

504 Notwithstanding that the Act and regulations recognise circumstances where a licence to take fauna in a nature reserve may be granted, we consider the terms of s 23 so clearly circumscribe the rights of Aboriginal people that native title rights to take fauna in a nature reserve or wildlife sanctuary are clearly and plainly extinguished by the Act. Insofar as those rights were extinguished before the Racial Discrimination Act 1975 (the RDA), s 211 of the NTA (which preserves certain native title rights, including the right to hunt, where a licence would otherwise be required to do so) can have no application. However, where nature reserves or wildlife sanctuaries have been created after the RDA came into force, s 211 would by force of s 109 of The Constitution override the provisions of s 23 of the Wildlife Conservation Act, and the native title rights to take fauna would not be wholly extinguished. In our opinion the creation of the nature reserves and wildlife sanctuaries has an impact on native title holders in the area concerned that is much greater than the impact on other members of the Australian community who at most hold common law rights to hunt game, and is discriminatory.

505 Reserve 42155 was created in 1992, but insofar as it included the earlier flora and fauna Reserves 30866 and 31636 the native title right to take fauna was already wholly extinguished.

506 The State also contended that ss 104-106 of the Conservation and Land Management Act 1984 (WA) and regulations under the Wildlife Conservation Act have the aggregate effect of wholly extinguishing native title. Section 104 of the Conservation and Land Management Act makes it an offence to light fires "without lawful authority" in reserves. Section 105 prohibits the lighting of fires in a State forest or timber reserve without giving prior notice to a forest officer, and s 106 creates an offence of unlawful occupation of reserves without "a grant, lease, licence or other authority from the Crown".

507 Regulations 44(2) and 46 made under the Wildlife Conservation Act provide:

"44(2) A person shall not-

(a) camp on any sanctuary; or

(b) build, erect or transport any tent, shed, outhouse, cottage, building, or any structure whatsoever in any sanctuary,

except by permission in writing of the Conservator of Wildlife and in a part set aside for such purpose pursuant to the Act and regulations.

...

46 Except as the Conservator of Wildlife may authorise in pursuance of a management scheme or working plan or in the administration of the Act and these regulations, a person shall not, in respect of any native reserve or wildlife sanctuary -

(a) remove or disturb any humus, leaf mould, rotting vegetation, soil, stone, sand, rock or gravel;

(b) cut, pick, pull, break, remove, injure, poison, strip or destroy any tree, shrub, herb, grass or other plant or part thereof, whether living or dead;

(c) post, stick, stamp, stencil, paint, draw, or otherwise affix any mark, lettering, notice, advertisement, sign, or document of any description, or have in his possession on any sanctuary any material of any description capable of being used for such purposes;

(d) cut or make any tracks, land strip or parking area, jetty, mooring, resting or launching area for any vehicle, vessel, aeroplane, helicopter or hovercraft, or use, operate or park such a vehicle, vessel, aeroplane, helicopter or hovercraft other than in a place lawfully set aside for that purpose;

(e) interfere in any manner with the water supply in any sanctuary including any lake, swamp, watercourse, river, drainage flow, well, water hole, or dam, whether natural or artificial, or use any water therefrom;

(f) sail, tow or operate any vessel of any description except in such part or parts lawfully set aside or reserved for that purpose;

(g) drive, tow or operate any vehicle of any description except on a road or track lawfully set aside or reserved for that purpose;

(h) misconduct himself or indulge in any riotous or indecent conduct;

(i) in any way disturb, interfere with, frighten, drive, molest or take any fauna or other animal, whether by noise or any other means, in or in the vicinity of any sanctuary;

(j) take, carry, operate, fire or use any firearm, throw or discharge any missile or explosives, except that a licensed shotgun may be used on a game reserve in the manner prescribed in these regulations;

(k) take, ride or drive, graze or agist any dog, cat, fox, horse, cattle, ... or suffer or allow any such exotic bird or animal to remain on any sanctuary;

(l) cut, construct or maintain any private track, road, tramway, railway or other means of transport or communication, or lay any telephone line, electric light or power line, water pipe line, gas pipe line or carry out any other works or drain or clear or prepare any part of any sanctuary for any purpose;

(m) light any fire, other than in an authorised fireplace, or burn or clear by any means whatsoever any tree, shrub, grass or other plant, whether living or dead;

(n) introduce, place, drop, spray, fog, mist or otherwise use or discharge any dangerous, poisonous or noxious substance;

(o) do or take anything which may interfere in any manner with the natural environment; or

(p) refuse to leave any sanctuary when so directed by any warden."

508 The sections of the Conservation and Land Management Act and the regulations relied upon impose very stringent and extensive control over human activities within nature reserves and wildlife sanctuaries. However, they do not prohibit entry to or presence within nature reserves and wildlife sanctuaries and in our opinion do not impose a regime of control that wholly prevents the continued enjoyment of all native title rights and interests in relation to the land within them. Nevertheless, the exercise of control by the Authority evidences a clear and plain intention to control access to nature reserves and wildlife sanctuaries, and to make decisions regarding human activities on the land. The extinguishment of an exclusive native title right to control access also has the consequence of extinguishing an exclusive right of possession and occupancy that might otherwise have existed.

(ii) Noogoora Burr Quarantine Area

509 By notice published in 1981 pursuant to the Agriculture and Related Resources Protection (Property Quarantine) Regulations 1981 it was stated that a person other than an owner or occupier of land, or an employee of an owner or occupier, shall not enter land specified in the notice except with the written approval of an inspector or authorised person. The notice was given as part of a measure to control an outbreak of Noogoora Burr on land between Kununurra and Wyndham, near the Ord River. It seems that the quarantine area was expanded by subsequent notices. The State appeals against the trial judge's rejection of their submission that prohibition of entry to the quarantine area under the control of departmental officers meant that native title had been extinguished in that area. We agree with his Honour's conclusion that the regulations were directed not to native title but to the eradication of the burr. Even though the notice prohibited entry without permission, it was regulatory in nature.

(iii) Aborigines Act 1905 (WA)

510 The State also appeals against the trial judge's conclusion that a proclamation made under s 39 of the Aborigines Act 1905 (WA) declaring it unlawful for Aborigines to remain in an area specified in a proclamation, near Wyndham, did not extinguish native title. Again we agree with the conclusion of the trial judge. Section 39 of the Aborigines Act 1905 provided that:

"The Governor may, by proclamation, whenever in the interest of the aborigines he thinks fit, declare any municipal district or town or any other place to be an area in which it shall be unlawful for aborigines or half-castes, not in lawful employment, to be or remain; and every such aboriginal or half-caste who, after warning, enters or is found within such area without permission, in writing, of a protector or police officer, shall be guilty of an offence against this Act."

511 Even though the proclamation prohibited entry upon, and presence on land except for the purposes of employment, it was made pursuant to legislation plainly intended to be for the benefit of Aborigines generally. The Act authorising the publication of the notice makes it plain that it was not intended to have the effect that native title rights were abolished. Rather the purpose of the legislation was to regulate the exercise and enjoyment of native title rights in a way that was beneficial to Aboriginal people.

Interests in Minerals (Including Petroleum)

(i) General

512 Some parts of the Crown land within the claimed area are, as noted earlier, subject to tenements granted under the Mining Act 1978 (WA) or the Petroleum Act 1967 (WA). The claimed area incorporates a small part of the most significant tenement, on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture. This area is within Reserve 31165 - "Government Requirements" which we have discussed above.

513 The trial judge (at ALR 577-581) rejected submissions by the State, and by parties holding mining interests, that the grant of these interests wholly extinguished any native title rights or interests within those areas. The State and these parties now appeal from this part of his Honour's decision. In order to understand the issues that arise on this aspect of the appeals, it will be necessary to recall the nature of the material native title claims before his Honour in this regard and his determination in this connection.

514 In their pre-trial particulars of the customs, laws, practices and usages which, they said, gave them their connection with the subject lands, the applicants claimed (1) that they "dug for and used stones, ochres and minerals on and from the land"; and (2) that they "shared, exchanged and/or traded resources derived on and from the land".

515 There was evidence led at the trial that the applicants dug for ochre at several special sites within the claim area and used the ochre recovered for ceremonial purposes.

516 As required by s 225(b) of the NTA, paragraph 3 of his Honour's determination stated, as has been noted that, subject to paragraph (5) thereof, the nature and extent of the native title rights and interests found included:

"(a) a right to possess, occupy, use and enjoy the determination area;

(b) a right to make decisions about the use and enjoyment of the determination area;

(c) a right of access to the determination area;

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

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

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

(g) a right to trade in resources of the determination area;

(h) a right to receive a portion of any resources taken by others from the determination area; ..."

517 The determination did not specify any particular meaning of the term "resources" in this connection. Its primary (singular) dictionary meaning is "a source of supply, support or aid" (The Macquarie Dictionary 3^rd ed). The Oxford English Dictionary (2^nd ed) offers the following primary meaning: "1. A means of supplying some want or deficiency; a stock or reserve upon which one can draw when necessary. Now usu. pl.." Webster'sNew International Dictionary (2^nd ed) primary meaning is: "1. A new or a reserve source of supply or support; a fresh or additional stock or store available at need; something in reserve or ready if needed". Clearly, resources may be of a different kind, for instance, mineral resources. In the present context, that is, a claim based upon custom and tradition, it would seem that his Honour was referring to resources of a customary or traditional kind. Ochre would be picked up by this reference but, in our view, minerals that are mined by modern methods would not. We will return to this aspect when considering the statutory concept of minerals in Western Australia.

518 The determination, as required by s 225(c), stated that the nature and extent of any other interests in relation to the determination area were the interests created by the Crown set out in the Third Schedule, paragra[h 4. The Third Schedule referred to interests of the following, amongst other, kinds:

"...

(c) Interests of lessees under:

...

(iv) Leases granted under the Mining Act 1978 (WA);

(d) Interests of licensees under:

...

(iv) Licences issued under the Mining Act 1978 (WA);

...

(f) Interests of holders of tenements under the Mining Act 1904 (WA);

...

(g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

...."

519 It will be recalled that paragraph 5 of the determination, as required by s 225(d), contained this reference to the Third Schedule interests:

"(5) The relationship between the `native title rights and interests' described in para (3) and the `other interests' described in [the Third Schedule] is as follows:

The `native title rights and interests' described in para (3) hereof and the `other interests' described in [the Third Schedule] hereof are concurrent rights and interests in relation to that part of the `determination area' to which the `other interests' relate, but by operation of legislation or by reason of the nature and extent of the `other interests' created by the Crown, the exercise of some of those concurrent rights, including `native title rights and interests', may be regulated, controlled, curtailed, restricted, suspended or postponed."

520 His Honour's decision was the first consideration of the relationship between mineral or petroleum interests in the State and native title interests. That relationship, in the Queensland context, was considered by Drummond J in Wik Peoples v State of Queensland (1996) 63 FCR 450. His Honour held (at 500-502) that any rights to use minerals or petroleum that might have existed, had been extinguished by Queensland mining and petroleum legislation vesting the property in all minerals and petroleum in the State Crown. This part of his Honour's judgment was not the subject of the appeal which was dealt with by the High Court in Wik. In Yarmirr v Northern Territory (1998) 82 FCR 533, Olney J held (at 601) that by the Northern Territory legislation, which was similar to Queensland's, the Crown had appropriated to itself an interest in the minerals in question which amounted to full beneficial ownership. It necessarily followed, his Honour held, that no native title rights in minerals could have survived the acquisition.

521 The State has counterparts to the Queensland and Northern Territory mining and petroleum legislation and in particular s 3 of the Western Australian Constitution Act 1890 (Imp), s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA) to which we refer below.

522 Before considering the effect of these provisions, and before turning to the status of the specific mining tenements considered by the trial judge, the earlier history of grants by the State concerning minerals should be mentioned and the position at common law recalled.

523 The common law presumption that the owner of land is entitled to all that lies above and below the ground has been applied in an Australian mining context (see Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 per Knox CJ and Starke J at 23-24). The common law presumption was subject to an exception for the royal metals of gold and silver. Moreover, it is "a recognised principle of the construction of statutes that the prerogative rights of the Crown can be affected only by express words or necessary implication": Woolley v Attorney-General of Victoria (1877) 2 App Cas 163 at 167-168. However, prior to 1887, land granted in the State would have conveyed to the grantee the property in all other minerals. That is to say, the base minerals, including petroleum, passed with a fee simple grant. But in the Land Regulations 1887 (WA), the Governor was authorised to grant interests in land, but to reserve the royal metals and any other minerals, at the Governor's discretion.

524 From 1 January 1899, all minerals were reserved from grants by virtue of the provisions of s 15 of the Land Act 1898. Accordingly, pastoral leases granted after 1898 reserved royal metals and other minerals in accordance with the Land Act 1898.

525 The State and Argyle submitted that by virtue of s 117 of the Mining Act 1904 (WA) gold, silver and other precious metals, and all other minerals at or below the surface of any land in the State which was not alienated in fee simple from the Crown before 1 January 1891, are the property of the Crown. Similarly, the State contended that by s 9 of the Petroleum Act 1936 (WA) petroleum below the surface of all land in Western Australia is the property of the Crown. It is contended that by this legislation the Crown appropriated to itself an interest in those minerals, and in petroleum, which amounts to full beneficial ownership, and that accordingly any native title that may have existed in relation to minerals or petroleum has been extinguished.

526 In our opinion the contentions of the State and Argyle are sound and should be accepted.

527 The arguments of the State and Argyle accord with the reasoning of Drummond J in Wik and with Olney J in Yarmirr that the Crown intended, in this regard, to reserve to itself the full beneficial ownership of all minerals, both royal and base. We agree with their reasoning which, we think, applies to the counterpart legislation in Western Australia. However, before going to that legislation, consideration should be given to the possible application of the recent decision of the High Court in Yanner in the present connection.

528 In Yanner, in considering the effect of the vesting of property in the Crown under the fauna legislation, Gleeson CJ, Gaudron, Kirby and Hayne JJ said (at 266-267):

"Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland. A `royalty' is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v FCT:

... the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken.

That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia." (Emphasis added)

529 Their Honours concluded (at 267), in the light of these considerations, that:

"... the statutory vesting of `property' in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than `a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource'."

530 The citation is from Toomer v Witsell [1948] USSC 105; 334 US 385 (1948) at 402 per Vinson CJ. Neither Toomer, nor Hughes v Oklahoma [1979] USSC 74; 441 US 322 (1979) where Toomer was cited (per Brennan J at 333-334), was concerned with minerals. Each dealt with the ownership of wild animals. And the passage from Yanner (at 267) which we have emphasised above shows, in our opinion, that a distinction is to be drawn between (a) the notional or artificial vesting in the state of property in a wild animal for the purposes of creating a situation which resembles one where, traditionally, a royalty is payable; and (b) the actual vesting which occurs in the case of minerals where a royalty is, in truth, payable.

531 Section 3 of the Western Australia Constitution Act 1890 (Imp) provided that:

"The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony."

In exercise of that power, the legislature enacted the Mining Act 1904 (WA) in which s 117 provided:

"SUBJECT to the provisions of this Act and the regulations -

(1.) Gold, silver and other precious metals on or below the surface of all land in Western Australia, whether alienated from the Crown, and if alienated, whensoever alienated, are the property of the Crown.

(2.) All other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before the first day of January, One thousand eight hundred and ninety-nine, are the property of the Crown."

532 A like provision was made by s 9 of the Petroleum Act 1936 (WA) as follows:

"Notwithstanding anything to the contrary contained in any Act, or in any grant, lease or other instrument of title, whether made or issued before or after the commencement of this Act, all petroleum on or below the surface of all land within this State, whether alienated in fee simple or not so alienated from the Crown is and shall be deemed always to have been the property of the Crown."

533 As has been mentioned, the present determination did not define the term "resources". However, in describing aspects of the claimants' connection with the area, the trial judge had said (at ALR 538):

"There was evidence of the contemporary use of natural resources found in and around the claim area for ceremonies and tool-making, in particular, ochre for the former. Consistent with the `primary' evidence, the archaeological evidence suggested that sources of ochre within Miriuwung and Gajerrong country were limited and that all locations of ochre were associated with sacred sites..."

534 This is a specific indication that the reference in the determination to "resources" was intended to pick up ochre. We agree with his Honour's conclusion that this aspect of the applicants' traditional connection with the area claimed was established on the evidence. In our view it should be regarded as one of the applicants' native title rights, unless ochre falls within the statutory concept of minerals.

535 For the purposes of the Mining Act 1904 "minerals" were defined to mean "All minerals other than gold, and all precious stones": s 3. By s 115 of the 1904 Act, this general definition did not apply to Part VI (which included s 117). Section 115 provided that in Part VI the term "minerals" meant:

"Antimony, bismuth, copper, iron, lead, manganese, mercury, silver, and tin, and the ores and earths of these metals, and gems and precious stones. The term also includes coal and oil, and any mineral which the Governor may from time to time by proclamation bring under the provisions of this Part of this Act."

536 In our opinion, these definitions were not intended to pick up ochre, an earthy substance used by Aboriginal people for traditional ceremonial purposes.

537 By s 8(1) of the Mining Act 1978, unless the contrary intention appears:

"`minerals' includes all naturally occurring substances, not being soil or a substance the recovery of which is governed by the Petroleum Act 1967 or the Petroleum (Submerged Lands) Act 1982, obtained or obtainable from any land by mining operations carried out on or under the surface of the land, including evaporites, limestone, rock, gravel, shale (whether or not oil shale) sand and clay except that where -

(a) limestone, rock or gravel;

(b) shale, other than oil shale;

(c) sand, other than mineral sands, silica sand or garnet sand; or

(d) clay, other than kaolin, bentonite, attapulgite, or montmorillonite,

occurs on private land, that limestone, rock, gravel, shale, sand or clay shall not be taken to be minerals;..."

538 Although this definition is more specific than in the case of the 1904 Act, it again appears that ochre used for traditional ceremonial purposes, does not fall within this statutory definition either.

539 Petroleum was defined in s 5 of the Petroleum Act 1967 (WA) as follows:

"`petroleum' means -

(a) any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state;

(b) any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state; or

(c) any naturally occurring mixture of one or more hydrocarbons, whether in a gaseous, liquid or solid state, and one or more of the following, that is to say, hydrogen sulphide, nitrogen, helium and carbon dioxide,

and includes any petroleum as defined by paragraph (a), (b) or (c) of this definition that has been returned to a natural reservoir, but excludes oil shale."

540 Clearly, ochre was not comprehended by this definition.

541 As we have said, in our view, essentially for the reasons given by Drummond J in Wik and by Olney J in Yarmirr, by virtue of the vesting provisions of s 3 of the Western Australia Constitution Act and by virtue of the proprietary provisions of s 117 of the 1904 Act, any native title rights to the minerals there specified within the State were wholly extinguished. In our opinion, those provisions were intended to reserve to the legislature and the Crown the full beneficial ownership of all the minerals specified. Similarly, we consider that if any native title right or interest existed in relation to petroleum within the State in the determination area that right or interest was wholly extinguished by virtue of s 3 of the Western Australia Constitution Act and s 9 of the Petroleum Act 1936. However, in this case there is no evidence of any traditional Aboriginal law, custom or use relating to petroleum either in the State or in the Territory and as a matter of fact any claim in relation to the possession, use or enjoyment of petroleum (if there is any in the determination area) is not established.

542 No submissions were made by the parties regarding minerals in the Territory, perhaps for the reason that the evidence did not establish any traditional Aboriginal law, custom or use relating to minerals, apart from ochre. The Minerals (Acquisition) Ordinance 1953 (Cth) (now the Minerals (Acquisition) Act (NT)) in s 3, provides that:

"All minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of any land in the Territory, not being minerals, which, immediately before the commencement of this Ordinance, were the property of the Crown or of the Commonwealth, are, by force of this Ordinance, acquired by, and vested absolutely in, the Crown in right of the Commonwealth."

Section 2 of the Ordinance defines minerals as follows:

"In this Ordinance, `minerals' includes all mineral substances, gold, silver, copper, tin and other... metals or minerals, and gems, precious stones, coal, shale, mineral oils, and valuable earths and substances."

The validity of s 3 of the Minerals (Acquisition) Ordinance 1953 was upheld in Kean v Commonwealth (1963) 5 FLR 432 and in Milirrpum v Nabalco Pty Ltd.

543 From 1 July 1978 the Territory became a separate body politic in the right of the Crown. All interests in minerals (other than substances then within the Atomic Energy Act 1953) were transferred to the Crown in the right of the Territory: Northern Territory (Self Government) Act 1978-1984 (Cth), s 69(4).

544 In the absence of a submission from the Territory that ochre falls within the definition of the minerals now vested in the Territory under the above legislation, we draw no distinction regarding the use and enjoyment of ochre between the part of the claim area in the State, and the part in the Territory. However, insofar as there may once have been a native title right to use and enjoy any of the minerals that are now vested in the Territory, that right was extinguished by the Minerals (Acquisition) Ordinance.

545 It will be convenient to consider the extinguishment issues in respect of the areas of land concerned in the sequence adopted by his Honour.

(ii) The Argyle mining lease

(a) Background

546 Reference should first be made to the particular contractual and legislative context in which the Argyle mining lease was granted.

547 The Argyle Joint Venture is the holder of a Special Agreement Lease (M259SA). It was granted on 27 January 1983 pursuant to the Argyle Diamond Mines Joint Venture Agreement (the Agreement) which was ratified in 1981 by the State Act of that name (the Ratifying Act). The need for special legislation providing for, inter alia, the grant of a mining lease, arose out of the "project" nature of the venture, which involved the building of a substantial infrastructure, including a township, airports and roads. Lease M259SA was varied in several respects in 1986, when the boundaries were altered, and the Minister imposed conditions on the Lease which, inter alia, provided for compliance with the Aboriginal Heritage Act 1972 (WA). As mentioned, the diamond mine lies to the south-west of Lake Argyle, and part only of M259SA is within the determination area (being the section hatched green on the map at p 153 of the Joint Appeal Book, vol 1).

548 Some of the provisions of the Agreement should be mentioned:

* the Agreement required the Joint Venturers to submit proposals to the Minister for the mining and recovery of diamonds from the mining area; the construction of plant, facilities, roads and town sites; the provision of utilities and services, water supply and power supply; and the provision of an airstrip and other works or facilities desired (cl 7);

* the Agreement provided for the grant, on application by the Joint Venturers, of a mining lease of the lands specified. The lease was to be subject to the Mining Act 1978 and in the form in the Schedule to the Agreement. It was to be "for all minerals" (cl 15(1)). It was to have a term of twenty-one years, with a right in the Joint Venturers to renew for further successive terms of twenty-one years (cl 15(2));

* provision was also made for some access over the mining lease. The Joint Venturers agreed to "permit the State and third parties with the consent of the State (with or without stock vehicles and rolling stock) to have access to and to pass over the mining lease (by separate route, road or railway) so long as that access and passage does not unduly prejudice or interfere with the operations of the Joint Venturers ..." (cl 15(4)); and

* provision was made for the payment to the State of a profit-based royalty (cll 29, 29A, 29B, 29C (the last three clauses were inserted by amendments made in 1983)).

549 The form of lease in the Schedule to the Act was expressed to be a lease of the lands "for all minerals", subject to specified exceptions, including petroleum.

550 Some of the provisions of the Ratifying Act should be noticed:

* applications for certain mineral claims that had been made by one of the Joint Venturers under the Mining Act 1904 (WA) were deemed to have been validly made (s 7);

* pending the grant of the mining lease, CRA Exploration, one of the Joint Venturers, was declared to have, inter alia, "exclusive possession of the subject land for the purposes of the Mining Act 1904 and the Mining Act 1978" (s 8(1)(a));

* any right title or interest etc. in the subject land that might otherwise have been acquired under the Mining Acts 1904 and 1978 by any person other than the Joint Venturers shall not be so acquired and is extinguished (s 9); and

* where it appears to the Governor that the mining, treatment, processing, sorting, storage or cutting of diamonds is being, or is proposed to be, carried out on any land or premises within the State, the Governor may by Order in Council declare that land or premises to be a "designated area" (s 15(1)). Entry to, and egress from, a designated area is regulated for purposes related to security (s 17).

551 The provisions of the Mining Act 1978 are to apply to lease M259SA except as otherwise provided in the Agreement (cl 15(1)). Reference should therefore be made to some of the provisions of Division 3 of Part IV of the Mining Act 1978, which deal with mining leases as follows:

* subject to the Act, the Minister may, on the application of any person, after receiving the statutory recommendation of the mining registrar or the warden (under s 75 - see below), grant a mining lease on such terms and conditions as the Minister considers reasonable (s 71);

* the area of land leased shall not exceed ten square kilometres (s 73). However, the Agreement contemplates an area much larger than ten square kilometres, and s 73 is therefore not applicable;

* upon application, the Minister shall grant a mining lease, or a general purpose lease, to the holder of a prospecting licence or of an exploration licence. Otherwise, the Minister may refuse or grant a mining lease, whether or not the warden recommends it (s 75);

* subject to the Act, a mining lease shall remain in force (a) for an initial term of twenty-one years; and (b) upon application, for a further term or terms of twenty-one years successively (s 78);

* every mining lease shall be subject to conditions that the lessee shall, inter alia, (a) pay rents and royalties; (b) use the land in respect of which the lease is granted only for mining purposes in accordance with the Act; (c) unless exempted, comply with the prescribed expenditure conditions; (d) not assign, underlet or part with possession of such land or any part thereof without consent (s 82(1));

* the Minister may impose reasonable conditions for the prevention or reduction of injury to the natural surface of the land, including a condition that mining operations shall not be carried out within such distance of the natural surface of the land leased, as the Minister may specify (s 84); and

* subject to the Act, a mining lease authorises the lessee (a) to work and mine the land for any minerals; (b) to take and remove from the land any minerals and dispose of them; (c) to take and use water; and (d) to do all acts and things necessary to carry out mining operations effectually (s 85(1)). Subject to the Act, the lessee (a) is entitled to use, occupy, and enjoy the land for mining purposes; and (b) owns all minerals lawfully mined (s 85(2)). "These rights are exclusive rights for mining purposes in relation to the land (s 85(3))."

552 Some action taken by the Minister for Mines under the Ratifying Act should be mentioned:

* the form of the lease in the Schedule to the Ratifying Act provides, as has been noted, for a "lease" of the lands "for all minerals", subject however to the exceptions and reservations then specified. The Sixth Schedule to the Ratifying Act contemplated the imposition by the Minister of further conditions on the lease. As mentioned, in 1986, the Minister imposed a condition of compliance with the provisions of the Aboriginal Heritage Act "to ensure that no action is taken which is likely to interfere with or damage any Aboriginal site"; and

* in 1992, a condition was imposed that there be no mining on, inter alia, Government Requirements Reserve 31165 (which is the claimed part of the leased area) without the prior written consent of the Minister.

(b) The reasoning of the primary judge

553 His Honour's reasons for concluding that native title had not been extinguished were, in summary, as follows:

* the "mischief" addressed by ss 7-10 of the Ratifying Act was to eliminate doubts arising from litigation instituted by a third party claiming a possessory title. It was not the intention of the legislature "to extinguish in general all pre-existing interests in that land" (at ALR 578-579);

* the grant of exclusivity of possession of land by the Crown is "not the determinant" of the Crown intention as to the extinguishment of native title. The character of the act of the grant of possession has to be assessed by having regard to the purpose for which possession is granted, rather than its nomenclature (at ALR 579). In this regard, to illustrate the dangers of placing too much reliance on nomenclature, in Wik Toohey J (at 117) had pointed out that the mining "lease" in Wade v New South Wales Rutile Mining Co Pty Ltd was properly described at 192 by Windeyer J as a sale by the Crown of minerals reserved to the Crown, to be taken by the lessee at a price payable over a period of years as royalties. This showed that adoption of the nomenclature "lease" in the context in Wade was a loose use of language (at ALR 579);

* the reservation of rights of access in cl 15(4) of the Agreement is "consistent" with the exercise of a right of access to the land by the holders of native title (at ALR 579). Moreover, the holders of native title, whose interest burdens the title of the Crown, would have implied consent from the Crown to exercise rights of entry and passage under that title until such time as the title is extinguished by the Crown (at ALR 580);

* the power to declare "protected sites" under the Aboriginal Heritage Act is "consistent" with the Crown intention that a right of access to those sites attached to a subsisting native title would continue, subject to the exercise of the right of access "not unduly prejudicing or interfering with" the operation of the Joint Venturers (at ALR 580); and

* the Minister's consent to mine on the Government Requirement Reserve was required. Such controlled use does not, on its face, signify any intention by the Crown to extinguish native title under which access, or other rights in respect of the land, may be exercised (at ALR 580).

(c) Conclusions on the appeals

554 For the general reasons we have given in respect of the extinguishment issues that arise in relation to the Ord Project, we are of the opinion that in respect of the area covered by the Argyle Diamond Project also, all native title has been extinguished. Again, we cannot accept the application of the Canadian "adverse dominion" concept here. It seems to us that, as in the case of the Ord Project, the very size of the infrastructure of such a major project as the Argyle Venture, when coupled with the nature and intensity of the large range of activities contemplated in its execution, all indicate the existence of a situation of complete inconsistency. In our view, it is inevitable that any native title rights must totally yield to the lessee's rights (and obligations) under the Agreement, the Ratifying Act, the Mining Act 1978 and the mining lease itself. As in the case of the grant of a fee simple, "[i]t simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title" (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo at 126). Their Honours there went on (at 126-127) to cite a passage from the reasoning in Mabo [No 2] giving as an example of inconsistency which involved extinguishment, the grant of a lease conferring exclusive possession rights. In particular, reference was made to the observations in Mabo [No 2] by Brennan J (at 69) that "native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g. authorities to prospect for minerals)". (Emphasis added). We are not here concerned with authorities to prospect or similar "lesser" interests. Argyle held a long term lease (i.e. one with a term of twenty-one years with a right to successive renewals) which conferred rights of exclusive possession for mining and incidental purposes.

555 These general considerations apart, we should also specifically consider the particular matters relied upon by the trial judge in coming to his conclusion that native title had not been extinguished:

556 First, we would accept, as one matter of background to the passage of the Ratifying Act, that there had been an earlier dispute with a third party, concerning a claim (not a native title claim) to a possessory title. But in our view, it does not follow that the right to exclusive possession of the land for mining purposes conferred by s 8(1)(a) of the Ratifying Act should be read down so as to apply to that third party's claim alone. (Nor, in our view, did the provisions of the Ratifying Act offend s 9(1) of the Racial Discrimination Act 1975, as was suggested in argument before us. The Ratifying Act is directed at the legitimation of the mining operations and project infrastructure: it is not, we think, aimed at native title, and makes no distinction based on race (see Yanner at 280 per Gummow J). In other words, the Ratifying Act, in our opinion, is neither "a bare legislative extinguishment of native title" nor "discrimination against the holders of native title which adversely affects their enjoyment of their title in comparison with the enjoyment of other title holders of their title": The Native Title Act Case at 418);

557 Secondly, the Aboriginal Heritage Act is a statute of general application, that is, capable of application to all land within the State and this includes freehold as well as leasehold land. Further, that Act has no material application here: the part of M259SA which contains sites nominated under the Act lies outside of the claim area;

558 Thirdly, it is true that the Ratifying Act, s 8(1)(a), confers upon the Joint Venturers exclusive possession of the land for specific purposes only; that is, for the purposes of the Mining Acts; and that, consistently with this restriction on use, the lease is a lease of the land "for all minerals". But, in our view, it does not follow from the circumstance that a lessee is granted exclusive possession of land for a nominated purpose, that others may possess the leased premises for other purposes. The fact that a lessee is granted exclusive possession for residential or commercial purposes only, does not carry with it an implication that the lessor is at liberty to lease the premises to a third party for a different purpose;

559 Fourthly, the mining lease, which should be viewed in the context of the major infrastructure of the project, was neither small in its area nor limited in time to any short term. This was consistent with the obvious substantial dimensions and significance of the project. Whilst it was open to the State to lease only some of the strata of land (cf. Goldsworthy Mining Limited v Federal Commissioner of Taxation per Mason J at 210-211), the whole of the land in the area was in fact leased. Nor was this a short term affair of the temporary kind considered in Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467 per Carr J at 484-486). The initial term, as has been said, was twenty-one years, with provision for successive renewals. There is a substantial element of permanence in the mining use authorised here, a use which is physically inconsistent with the native title rights claimed. In our view, this is of a scale and dimension sufficient to extinguish those rights entirely. As has been said, from the point of view of extinguishment, this project is similar in principle to the Ord Project. Each involved the construction of major infrastructure, and the carrying on upon the land of a range of intensive activities. None of this could be done consistently with the exercise of the native title rights claimed. Accordingly, in our opinion, the latter were, by statutory implication, wholly extinguished; and

560 Fifthly, as Gummow J noted in Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513 (at 616), Windeyer J in Wade followed (at 192) the well-known description of a mining lease under the general law given by Lord Cairns in Gowan v Christie [1873] LR 2 Sc & Div 273 (at 284), that is:

"What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil."

561 It is also accurate to say, as the trial judge observed, that in Wik Toohey J (at 117) had used this as an example of looseness in nomenclature. But the point in Gowan v Christie was whether a mineral lease had been, in effect, frustrated by reason of the sterility or exhaustion of the subject matter. It was held that the lease subsisted and that the analogy sought to be used of an agricultural or horticultural lease was not appropriate in the case of a mining lease. In this particular context, before the passage at 284 cited above, Lord Cairns hadsaid(at 283-284) that:

"... although we speak of a mineral lease, or a lease of mines, the contract is not, in reality, a lease at all in the sense in which we speak of an agricultural lease. There is no fruit; that is to say, there is no increase, there is no sowing or reaping in the ordinary sense of the term; and there are no periodical harvests. What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land." (Emphasis added).

562 In I.C.I. Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VicRp 48; (1976) 11 ALR 324 McInerney J, referring to, inter alia, Gowan v Christie said (at 338):

"In cases where the subject matter of the mining lease is a defined seam of, eg coal, it is easier to understand how there can be a grant of exclusive possession, for the duration of the `lease', of the defined seam. If the term of the `lease' is such as to indicate an intention that the grantee, or lessee, is to work, until it is exhausted, the entire seam, it is difficult to see how there can be a reversion to the grantor, or lessor, or any part of the seam."

563 In the I.C.I. Case, one of the questions was whether, despite the absence of some of the statutory formalities, there were leases of land for the purposes of the Commonwealth income tax legislation. The taxpayer had engaged in the production of salt on the lands in question in South Australia which, it claimed, were the subject of mining leases or leases for mining purposes under the Mining Act 1930 (SA). It was held by McInerney J that leases of land were involved. This part of the judgment was affirmed by the High Court in I.C.I. Alkali (Australia) Pty Limited (In voluntary liquidation) v Commissioner of Taxation (Cth) (1978) 53 ALJR 220.

564 It is important, we think, to bear in mind that the subject matter of the Argyle lease is an area of land, not a defined seam.

565 In Wade, after citing the observation of Collins MR in In re Aldam's Settled Estate [1902] 2 Ch 46 (at 56) that a mining lease "is really in its essence rather a sale at a price payable by instalments than a demise properly so called", Windeyer J went on to say (at 193):

"It is thus in accordance with usage to describe a right given by the Crown to extract minerals belonging to the Crown as a lease - a term used in the statutes since 1894. The actual form of a mining lease under Pt IV, as shown in sched. 43c of the Mining Regulations, is `a grant and demise' by the Sovereign of a defined parcel of land ` for the purpose of mining for working and winning' a specified mineral."

566 In Newcrest, Gummow J referred to an earlier statement by Kitto J in Commissioner of Stamp Duties (NSW) v Henry [1964] HCA 4; (1964) 114 CLR 322 (at 330) that the common law recognises that a lease which entitles the lessee to work a mine on the demised premises gives the right not only to use the property, but also as part of the same grant, the right to appropriate the minerals when severed from the land.

567 It may be accepted that a statutory mining lease has the special characteristics described in the authorities. But it does not, in our opinion, follow that there is no lease of land involved here. For as Dixon CJ said of the mining arrangement in Henry (at 327):

"A lease it may be under the provisions of the Stamp Duties Act, but it is not a conveyance, and there is no divisible grant of a profit à prendre."

568 These observations are, in our view, equally applicable to the Argyle lease.

569 Sixthly, we cannot, with respect, accept the trial judge's statement that the "grant of exclusivity of possession ... is not the determinant ...". As we have previously noted, it was accepted in Mabo [No 2], Wik and Fejo as beyond argument that a common law lease, that is, one that confers exclusive possession will, by virtue of that conferment, wholly extinguish native title;

570 Seventhly, we do not think that the provisions of cl 15(4) of the Agreement which oblige the Joint Venturers to permit the State and third parties with the State's consent (with or without stock vehicles and rolling stock) to have access, should be interpreted as an indication of an intention not to extinguish native title. This provision makes no reference to native title, and on its face, contradicts an essential characteristic of native title, namely that it burdens the Crown's radical title without any need for the Crown's consent; and

571 Lastly, we do not think that the existence of a power in the Minister for Mines to control the mining operations can be interpreted as an indication of an intention that there should be no extinguishment of native title. As a matter of form and of substance, that power is intended to operate in an entirely different area of discourse. There is nothing in the language which confers upon the Minister the power to control mining operations to suggest that the Parliament had the preservation of native title interests in mind.

572 It follows, in our opinion, that in the above lease area, all native title rights were extinguished. As we have already said, native title rights in the minerals themselves were already wholly extinguished by the earlier vesting and proprietary legislation.

(iii) Other mining tenements

573 The trial judge considered a "general purpose" lease granted under the Mining Act 1978 and a number of mining leases granted to certain of the respondent parties. His Honour observed (at ALR 581) that a general purpose lease is "a statutory interest ancillary to the statutory tenement of a mining lease and has no particular characteristic that demonstrates a Crown intention to extinguish native title...". His Honour had earlier said (at ALR 580) that, for the reasons given in respect of the Argyle mining leases, the grant of the general purpose lease and the mining leases "did not evince a clear and plain intention by the Crown to extinguish native title".

574 For reasons similar to those we have given in respect of the Argyle lease, we have difficulty accepting his Honour's analysis.

575 It will be convenient to consider the mining leases first.

(a) The mining leases

576 There were fifty-two mining leases granted in respect of land within the claim. Forty-four of these leases are wholly within the lands resumed or acquired for the Ord Project, and for that reason alone concern land over which native title has been wholly extinguished. All of the leases were granted pursuant to Division 3 of Part IV of the Mining Act 1978. Its material provisions have been described previously.

577 Some of the provisions of the Mining Regulations 1981 should be noticed.

578 Regulation 27 inserts the following covenants into the leases:

"Every mining lease shall contain and be subject to the following covenants that the lessee shall -

(a) pay the rents and royalties due under the lease at the prescribed time and in the prescribed manner;

(b) use the land in respect of which the lease is granted only for mining purposes in accordance with the Act;

(c) comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed;

(d) not assign, underlet or part with possession of such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting with the authority of the Minister;

(e) lodge with the Department at Perth such periodical reports and returns as may be prescribed; and

(f) promptly report in writing to the Minister details of all minerals of economic significance discovered in, on or under the land the subject of the mining lease."

579 Regulation 28 provides an additional condition:

"In addition to the covenants and conditions contained in section 82 of the Act it shall be a condition of every mining lease that all holes, pits, trenches and other disturbances to the surface of the land made whilst mining which in the opinion of the State Mining Engineer are likely to endanger the safety of any person or animal will be filled in or otherwise made safe to the satisfaction of the State Mining Engineer."

580 The terms and conditions of the mining leases themselves vary, and include conditions drawn to fit the circumstances of the proposed mining project, those conditions requiring that construction and operation of the project and measures to protect the environment be carried out in accordance with a "notice of intent" which outlines the proposed operations on the lease. There are, however, a number of conditions which are common to the leases which require:

* survey;

* compliance with provisions of the Aboriginal Heritage Act 1972, to ensure that no action is taken which is likely to interfere with or damage any Aboriginal site;

* compliance with the rights in Water and Irrigation Act 1914 (as amended;

* no mining being carried out that will pollute or unduly interfere with natural water courses;

* the rights of ingress to and egress from any mining operation being at all reasonable times preserved to the authorised officers of the Public Works Department, for inspection purposes;

* the development and operation of the project being carried out in such a manner so as to create the minimum practicable disturbance to the existing vegetation and natural landform;

* all topsoil being removed ahead of all mining operations from sites such as pit areas, waste disposal areas, ore stockpile areas, pipeline, haul roads and new access roads and being stockpiled for later respreading or immediately respread as rehabilitation progresses;

* at the completion of operations, all buildings and structures being removed from site or demolished and buried to the satisfaction of the State Mining Engineer;

* all rubbish and scrap being progressively disposed of in a suitable manner;

* at the completion of operations, or progressively where possible, all access roads and other disturbed areas being covered with topsoil, deep ripped and revegetated with local native grasses, shrubs and trees to the satisfaction of the State Mining Engineer;

* any alteration or expansion of operations within the lease boundaries beyond that outlined in the above document not commencing until a plan of operations and a program to safeguard the environment are submitted to the State Mining Engineer for his assessment and until his written approval to proceed has been obtained;

* the lessee providing a bond in favour of the Hon Minister for Mines in the sum of $... for due compliance with the environmental conditions on the lease; and

* the lessee submitting to the State Mining Engineer in October of each year, a brief annual report outlining the project operations, mine site environmental management and rehabilitation work undertaken in the previous 12 months and the proposed operations, environmental management plans and rehabilitation programs for the next 12 months.

581 It is true that these mining leases did not have the background of the Argyle Diamond Project's major infrastructure and contemplated mining operations, to be carried out on lease M259SA. On the other hand, they cover an area smaller than the Argyle Project. As a consequence, the scope, in terms of space, for the existence of concurrent activities must be practically affected to a substantial extent by this factor alone. In any event, it seems to us that the statutory character of these leases, when their other aspects are also taken into account, is equally inconsistent with the co-existence of any native title rights. In our view, the statutory scheme of the Mining Act 1978 and Regulations establishes a regime which has an intended operation which, in the absence of explicit provision to the contrary (and none is relevantly to be found here) is inconsistent with the use or occupation of the lands leased by any other person.

582 We note, in this connection, that it is also not suggested that any site was declared under the Aboriginal Heritage Act in the claim area so far as concerns the lands the subject of these leases.

583 On behalf of the applicants, it is submitted that the mining leases were neither permanent, nor impossible of co-existence with native title, so as to manifest a clear and plain intention to extinguish. This result is said to flow from the following in particular:

* the finite operation of the term.

In our view, whilst it may be accepted that, strictly speaking, the lease had a definite term, it was not a short one. As previously mentioned, a term of twenty-one years with a capacity for successive renewable terms is quite different in its duration from the shorter term exploration licence considered in the Mineralogy Case;

* the absence of any requirement of a particular level of production.

Again it is true that, in strictness, there is no specific legal requirement for a particular level of production. But this cannot, in our opinion, detract from the existence of the lessee's right to exclusive possession for mining and incidental purposes; nor can it detract from the lessee's right, and in some circumstances the obligation, to carry out a range of activities upon the leased lands, including compliance with prescribed expenditure conditions. The existence of rights and obligations of this scope and intensity creates, as has been said, a situation which is quite inconsistent with the existence of native title rights; and

* the limitation on use to mining purposes only.

As previously mentioned, whilst this limits the scope of the activities that may be pursued by the lessee upon the leased lands, it does not, in our view, follow that possession may be granted to another person.

584 In our view, apart from the extinguishment of native title rights in the minerals previously mentioned, all native title rights in the areas of lands leased were also extinguished.

(b) The general purpose lease

585 A general purpose lease is an interest granted under s 86 of the Mining Act 1978. Within the claim area there is only one such lease, G80/5, held by Mr J L Woodhead, a party to Alligator Airways' appeal. This lease is also within lands resumed or acquired for the Ord Project. This lease was granted on 2 August 1989. The land leased has been used to contain crushing and screening plants, and for associated stockpiling.

586 Division 4 of Part IV of the Mining Act 1978 deals with general purpose leases "for use [by the lessee] in respect to mining operations" as follows:

* generally speaking, this type of lease has a term of twenty-one years, with a right of renewal for a further term of twenty-one years (s 88);

* the maximum area leased is ten hectares (s 86(3));

* the lease entitles the lessee and his agents and employees to the exclusive occupation of the land for one or more of these purposes:

(a) for erecting, placing and operating machinery in connection with mining operations;

(b) for depositing or treating minerals or tailings;

(c) for any other specified purpose directly connected with mining operations (s 87); and

* conditions for prevention or reduction of injury to land may be imposed by the Minister (s 90, picking up s 84).

587 Mining Regulation 36 provides that every general purpose lease shall contain these covenants:

"(a) pay the rents due under the lease at the prescribed time and in the prescribed manner;

(b) use the land in respect of which the lease is granted only for the purposes specified in the lease;

(c) not assign, underlet or part with possession of such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting with the authority of the Minister;

(d) lodge with the Department at Perth such periodical reports as are approved by the Director General of Mines as being required in respect of a general purpose lease;

(e) promptly report in writing to the Minister details of all minerals of economic significance discovered in, on or under the land the subject of the lease; and

(f) be liable to have the lease forfeited if he is in breach of any of the covenants or conditions thereof."

588 The following is the Schedule of Conditions for Mr Woodhead's general purpose lease:

"1. Survey.

2. Compliance with the provisions of the Aboriginal Heritage Act, 1972 to ensure that no action is taken which is likely to interfere with or damage any Aboriginal site.

3. The grant of the lease being confined to the natural surface of the land and thereunder to a depth of 15 metres.

4. Such further conditions as may from time to time be imposed by the Minister for Mines to deal with the prevention or reduction of dust nuisance.

5. The  Rights in Water and Irrigation Act, 1914  as amended.

6. No mining being carried out that will pollute or unduly interfere with the natural water courses.

7. The rights of ingress to and egress from any mining operation being at all reasonable times preserved to the authorised officers of the Water Authority, for inspection purposes.

8. Such further conditions concerning the pollution or interference with the natural water courses as the Minister for Mines may from time to time determine.

9. No mining, other than exploration, being commenced on any existing or planned irrigation area or on any strip of land within 50 metres of the banks of a Water Authority irrigation channel, drain or maintained water course without the lessee/holder first supplying details of, and receiving the written approval thereto of the State Mining Engineer and the Director of Engineering of the proposed layout of the mine plant, building and facilities and access routes, together with plans for the disposal of liquid and solid waste, and details of requirements as to water and other public utility services.

10. No extension of previously approved surface mining operations, other than exploration, being commenced on any existing or planned irrigation area or on any strip of land within 50 metres of the banks of a Water Authority irrigation channel, drain or maintained water course without the lessee/holder first supplying details as required by Condition (9) above and receiving the written approval thereto of the State Mining Engineer and Director of Engineering.

11. Exploration on any existing or planned irrigation area or on any strip of land within 50 metres of the banks of a Water Authority irrigation channel, drain or maintained water course being confined to surface geological, geophysical and/or geochemical surveys, and drilling, unless the written consent of the District Engineer, Water Authority, Kununurra, is first obtained.

BY APPROVAL ON 7 JULY 1995; THE FOLLOWING ADDITIONAL CONDITIONS ARE IMPOSED:

12. The construction and operation of the project and measures to protect the environment being carried out generally in accordance with the document titled:

* `Notice of Intent - Low Impact Mining Operation' dated 22 February 1995 and retained on the Department of Minerals and Energy File No: 2037/95.

13. Where a difference exists between the above document and the following conditions, then the following conditions shall prevail.

14. The development and operation of the project being carried out in such a manner so as to create the minimum practicable disturbance to existing vegetation and natural landform.

15. All topsoil being removed ahead of all mining operations from such sites such as pit areas, waste disposal areas, ore stockpile areas, pipeline, haul roads and new access roads and being stockpiled for later respreading or immediately respread as rehabilitation progresses.

16. At the completion of operations, all buildings and structures being removed from site or demolished and buried to the satisfaction of the State Mining Engineer.

17. All rubbish and scrap being progressively disposed of in a suitable manner.

18. At the completion of operations, or progressively where possible, all access roads and other disturbed areas being covered with topsoil, deep ripped and revegetated with local native grasses, shrubs and trees to the satisfaction of the State Mining Engineer.

19. Any alteration or expansion of operations within the lease boundaries beyond that outlined in the above document not commencing until a plan of operations and a programme to safeguard the environment are submitted to the State Mining Engineer for his assessment and until written approval to proceed has been obtained.

20. The lessee providing a Bond in favour of the Hon Minister for Mines in the sum of $2,000 for due compliance with the environmental conditions on the lease.

21. The lessee submitting to the State Mining Engineer in October of each year, a brief annual report outlining the project operations, minesite environmental management and rehabilitation work undertaken in the previous 12 months and the proposed operations, environmental management plans and rehabilitation programmes for the next 12 months."

589 Again, we have difficulty accepting the trial judge's conclusion that there was no extinguishment here. The express grant of exclusive possession (albeit for specified purposes) together with the strict imposition of the regime of control by the Minister for Mines of the lessee's operations (by virtue of the provision of the statutory scheme and the lease conditions), all combine to create rights and obligations, the exercise and performance of which are inconsistent with native title. Those rights and obligations are consistent, rather, with achieving the objective of good mining practice. This outcome is reinforced by the circumstance that the subject area offers even less space for concurrent activities than the maximum area available under the Mining Act 1978 for grant as a mining lease.

590 We note that in this instance there was again no evidence of the location within this area of a site declared under the Aboriginal Heritage Act.

591 For the applicants, it is again said that there is a "lack of permanence" in the duration of the lease. However, in our view, a term of twenty-one years, coupled with a right of renewal for a further twenty-one years, cannot, as we have said, be equated with the relatively short term exploration licence considered in the Mineralogy Case.

592 The result of the grant of this lease, in all its dimensions, including its duration, was, in our opinion, to create rights in the lessee which were wholly inconsistent with any native title rights. All such rights in the area leased would have been extinguished by the grant had native title not already been extinguished by the implementation of the Ord Project.

(c) Other mining tenements

593 As has been noted, in the Third Schedule of his Honour's determination, reference is made to the interests of licensees under the Mining Act 1978 (WA). There is no appeal from this part of his Honour's determination, doubtless because the parties have accepted, as we accept, the correctness of the decision of Carr J in Mineralogy. We need say nothing more about these licences.

594 As we have seen, the Third Schedule also referred to the interests of holders under the Petroleum Acts. No appeal is brought from this part of the determination.

595 Mention was made in the Third Schedule to "Interests of holders of tenements under the Mining Act 1904 (WA)". Again there is no appeal from this part of the determination. In any event, it appears that these interests have been, in the main at least, superseded by interests granted under the 1978 Act, which we have otherwise dealt with. There was provision for each of these interests to be converted into interests under the new Act, but it appears that many would have long expired, been surrendered or forfeited at the time of the new legislation, and perhaps some were not converted and were left to expire.

Leases

596 The trial judge considered the effect on native title of numerous leases and licences which have been granted over the years in respect of different reserves. Many of the reserves considered by his Honour are within the lands resumed or acquired for the Ord Project in respect of which we have held native title has been wholly extinguished. For this reason it is unnecessary for us to consider leases and licences to C Guerinoni and Guerinoni Nominees Pty Ltd (Reserve 29277); leases to the Ord River Yacht Club, and the Kununurra Ski Club Inc (Reserve 29297); leases to the Kununurra Riding Club Inc, and the Kununurra Agricultural Society Inc (Reserve 29799); to the Kununurra Race Club (Reserve 30290); and to the Ord Pistol Club Inc (Reserve 31780); leases and licences to R Walker, M Dove and W Mitchell (Reserve 36551); and two Jetty Licences; the Kona Lakeside Tourist Park lease and the lease to G M & D E Lindsey trading as Ord Valley Aqua Craft Hire (Reserve 41812). Leases to two Aboriginal Corporations within the resumed land are dealt with separately as leases of reserves under the Aboriginal Affairs Planning Authority Act 1972 (WA) (Reserves 26600 and 40536). We deal only with the various leases outside the lands resumed or acquired for the Ord Project.

(i) Conditional purchase leases under s 62 of the Land Act 1898 (WA)

597 Three conditional purchase leases were issued under the Land Act 1898 in the claim area. One led to the grant of the freehold land in the centre of the Argyle pastoral lease on which the Argyle Downs homestead was constructed. It is not disputed that the grant of freehold land extinguished native title. The other two conditional purchase leases were in the western portion of the claim area now designated Reserve 42155, and one of them, it is agreed, is wholly outside the determination area (being in the western extremity of the claim area which the trial judge found was not Miriuwung or Gajerrong territory). The third conditional purchase lease, 136/62, is partly within the determination area, and wholly within the area that later became the subject of the Permit to Occupy granted to the Wyndham Freezing, Canning and Meat Export Works in 1918 which we have held had the effect of wholly extinguishing native title. Nevertheless, as conditional purchase leases have been addressed in detail in submissions we shall deal with them.

598 Conditional purchase lease 136/62 was formally issued to Connor Doherty and Durack Limited on 30 July 1910. The area comprised in the lease was some 2,000 acres within an area of land in and around Goose Hill held by the company under the "Ascot" pastoral lease. The lease was resumed pursuant to s 9 of the Land Act 1898 for "Use and Requirements of the Government of the State" by proclamation dated 9 January 1918. Section 62 of the Land Act 1898 relevantly provided:

"Any pastoral lessee in the Kimberley...who shall have in his possession in any such division at least ten head of sheep or one head of large stock for each one thousand acres leased, may apply to purchase...any Crown land within his lease...not exceeding in the aggregate one per cent of the total area held by such lessee under pastoral lease...on the same terms, and subject to the same conditions as are prescribed for purchase under section fifty-five, except the condition of residence..."

599 Section 55 provided for conditional purchase of agricultural lands elsewhere in the State. Relevantly s 55 provided that on application for conditional purchase from the Crown, accompanied by "the first instalment", being rental payable under the lease, "and on approval of the application by the Minister, a lease in the form of the Ninth Schedule shall be issued for twenty years...". Section 55(4) had a requirement to reside on the land, not applicable in the case of the Kimberley region, s 55(5) imposed conditions as to fencing and other improvements to be carried out within two, five and ten years, and s 55(6) provided that at the expiration of the lease, or at any time after five years, provided all the conditions as to fencing and improvements have been complied with, and the full purchase money and fee have been paid, a Crown grant of the land shall issue. Section 62 contemplates that the pastoral lease in respect of the land sought to be purchased will be determined, and a new lease issued in respect of it.

600 A lease in the form of the Ninth Schedule is expressed in the form and terms of a common law lease. It is recited that in exercise of the powers given under the Land Act 1898 His Majesty does "by these Presents demise to the Lessee...the natural surface and so much of the land as is below the natural surface to a depth of (two hundred) feet all that piece or parcel of land...to have and to hold the said land hereby demised subject to the powers, reservations and conditions contained herein. ...for the term of twenty years;...YIELDING AND PAYING ...half-yearly in advance...such rent...". The lease provided that upon the expiration of the term or after five years, upon proof of compliance with the conditions and payment the lessee shall be entitled to a Crown grant in fee of the demised lands.

601 The lease contained a power of resumption for works of public utility without compensation, and reservations to take timber and stone for works of public utility, reservation in the Crown of all mining and mineral rights, and reservation of a right in the Crown to re-enter on default in complying with the conditions set out in the Act.

602 It was an agreed fact at trial that the lease was entirely fenced and that a homestead, the Ascot homestead, had been constructed on the land but the date of construction was unknown.

603 The trial judge held that the grant of the conditional purchase lease did not extinguish native title. We are unable to agree with this conclusion. In its form and terms, the grant was in the form of a lease with a right to purchase upon compliance with the conditions of the lease. The lease was for a small area of land. The lease was not for a confined purpose such as grazing. The contemplation of the parties, as expressed in the lease, was that the grant would mature into an estate in fee simple, not revert to the Crown at the expiration of the term. The reservations were less extensive than in Wik. That consideration, and the absence of a restriction as to the use of the land, mean that the rights of possession granted to the lessee were not so heavily qualified as in Wik. It can be argued that the decision in Wik is distinguishable, and that under a conditional purchase lease the lessee obtained a grant of "exclusive possession" that extinguished native title rights. But as Toohey J pointed out in Wik at 131 to focus on "exclusive possession" is to obscure the critical question which is whether the rights granted by the lessee excluded all holders of native title rights. The answer to that critical question is to be ascertained by construing the empowering statute (the Land Act 1898) and the lease. As a matter of construction there is one consideration which in our opinion decides the question. That consideration is that the prescribed form for a pastoral lease required by s 92, set out in the Twenty-fourth Schedule contained a reservation in favour of Aboriginal people, whereas the Ninth Schedule form required by ss 55(3) and 62 contained no such reservation. That omission in our opinion is a clear indication that under a conditional purchase lease native title rights were not excepted from the possessory rights granted to the lessee.

604 The trial judge noted that a conditional purchase lease is a unique feature of Australian land law which served a public purpose in promoting the settlement of land: Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 at 183 per Knox CJ. That may be so, but that fact does not deny that the lease granted in connection with a unique form of transaction by its terms may grant rights which are wholly inconsistent with the continued enjoyment of native title. His Honour also said that a conditional purchase lease issued under s 62 has more in common with an agreement for the sale of property than the grant of a lease at common law, citing Moore and Scroope v Western Australia [1907] HCA 56; (1907) 5 CLR 326 per Isaacs J at 345 and 347. His Honour said that there is a significant difference from a contract of sale in that the Crown parts with no interest and the lessee obtains no interest in the land until all statutory conditions have been fulfilled.

605 With respect to his Honour, we do not think that either of these decisions assist in determining the nature of the possessory rights which the lessee obtained under the lease to occupy and use the land pending the conveyance of an estate in fee simple at the expiration of the term, or on the sooner payment of the purchase price. In Moore and Scroope v Western Australia the question was whether homestead and grazing leases granted under the Homesteads Act 1893 (WA) and the Land Act 1898 (WA) were "sales" within the meaning of the Land Regulations 1887 (WA). The question was answered in the affirmative. Homestead and grazing leases were forms of conditional purchase. Isaacs J, referring to provisions of the Homesteads Act, said at 346-347:

"Section 23 requires him also to comply with conditions which obviously point to the intention of his permanently retaining the land as against the Crown. By sec. 25, if he had duly paid his rent and observed the conditions, he is entitled on payment of fees to a Crown grant of the lands. Section 26 permits him to accelerate the granting of title. Sec. 29 recognizes rights properly attributable to a virtual purchaser of the land. Broadly looked at, the issue of a homestead lease is only the first step in a continuous and connected process by which the Crown transfers for a fixed price its land to a permanent settler. A homestead lessee would undoubtedly regard the land as his, subject only to payment of the deferred price, and compliance with the conditions. There is no intention that his interest in the land shall terminate in thirty years; on the contrary the intention is that it shall then or sooner ripen by virtue of his contract into absolute ownership."

606 In our opinion that reasoning may be applied equally to a conditional purchase lease. The grant of the lease points to the intention of the parties that the lessee will permanently retain the land, becoming in due course the holder of an estate in fee simple.

607 The question in Davies v Littlejohn was whether the expression "charges or encumbrances" in a Will included the unpaid instalments owing to the Crown under the terms of a "conditional purchase" under the Crown Lands Acts of New South Wales. That question was answered in the negative. The issue in the case did not concern the nature of the possessory interest held by the purchaser under the transaction.

608 In our opinion the grant of the conditional purchase lease had the effect of wholly extinguishing native title. However for reasons already given we think the native title in the land in question was in any event extinguished by the subsequent grant of the Permit to Occupy issued in 1918.

(ii) Special leases under r 114 of the Land Regulations 1887, s 152 of the Land Act 1898 (WA) and ss 116 and 117 of the Land Act 1933 (WA)

609 A total of twenty special leases under one or other of these provisions have been granted for land within the claim area.

610 One was issued under r 114 of the Land Regulations 1887, and eight were issued under s 152 of the Land Act 1898 over small areas of land in the Goose Hill area. Two of those special leases were within reserve 1059 (used for cattle grazing and resting) namely the McCrann lease and the Wallace & Ors lease, and are within the claim area. It is probable that the balance of the nine leases are outside the determination area, that is to the west of the Miriuwung or Gajerrong country around Goose Hill. The leases issued were in respect of "gardens", "market garden", "saddlery business and market garden" and "canning and preserving". All these special leases concerned land now within Reserve 42155, and quite apart from the effect of the special leases, have undergone partial extinguishment of native title to the extent caused by the early pastoral leases, in two instances by Reserve 1059, and more recently by the creation of Reserve 42155.

611 The claimants disputed the valid creation of some special leases on the ground that the leases themselves were not produced into evidence. However departmental records in the case of some of those leases indicate the processing of applications and the receipt of rental payments. So far from the event, the documents produced are sufficient, with the benefit of the presumption of regularity, to warrant a finding that valid leases were issued, in those instances. Those leases are 114/47 (McCrann), 152/420 (Wallace & Ors), 152/570 (Ah Ying), 152/745 (Ah Kim) and 152/836 (Favell). We are satisfied that land leased to McCrann was mapped and precisely located, and reject the applicants' submission to the contrary. There is evidence that McCrann actually used the land to run pigs.

612 In relation to four special leases for "canning and preserving", his Honour noted at ALR 623-624 that the lease documents submitted in evidence had not been executed. It appears that rent for at least the first quarter was paid in October 1906, but there are entries to the effect that rent was not paid for the second half of 1907, and the leases were later recorded as cancelled. This is not a situation where there was no evidence about the lease itself so that the other official records could be relied on to presume that there must have been a valid lease. Here there was evidence about the lease which his Honour considered. Having analysed the evidence his Honour was not prepared to find that leases were ever issued under the hand and seal of the Minister. The appellants have not persuaded us that this finding is wrong. Moreover, the evidence suggests that the lessees may not have gone into actual possession of the land as there is no evidence of the construction of a canning or preserving works. His Honour's finding that these four special leases did not extinguish native title will therefore stand on the basis that the valid issue of these leases was not proved.

613 Under r 114 of the Land Regulations 1887 the Governor in Council was empowered to grant leases of any portion of land not exceeding twenty-five acres for the erection of wharves, storehouses, slips for building or repairing vessels, quarries, baths, works for supplying water or gas to any town, market gardens or any other special purpose. There was no prescribed form of lease. The regulation specified that the lease would be on such conditions as to rent or otherwise as shall be determined by the Governor in Council. Whilst we think the presumption of regularity operates to support a finding that a lease was validly granted under the regulation to McCrann, without the lease itself, the terms of the lease are unknown. Running pigs on the land does not readily fit within any of the nominated purposes. Without knowing the terms of the lease, and whether the land was being used for a permitted purpose, it is impossible to hold that either the grant of the lease, or the use to which the land was lawfully put extinguished native title.

614 The Land Act 1878, s 152, made provision for the grant of special leases not exceeding twenty-five acres in area and for a term not exceeding twenty-one years in the form or to the effect of the Twenty-ninth Schedule for any of the purposes that had been nominated in r 114 and for "any other special purpose". The prescribed form of the lease has the common law hallmarks of a lease, and uses common law concepts, indicating a demise of land, and the creation of a leasehold interest for a term entitling the lessee to possession for the purpose of the lease. The form of lease contained reservations similar to those recited in a conditional purchase lease. The small areas involved, and the intensive purpose for which the leases were granted distinguished the leases in important respects from the pastoral leases considered in Wik. Importantly, and in contradistinction to the Twenty-fourth Schedule, there is no reservation in favour of Aboriginal people. In our opinion leases under s 152 granted the lessees possessory rights which were wholly inconsistent with the continued enjoyment of native title rights and effected a total extinguishment of native title. That is the case with lease 152/140 (Wallace & Ors) which is within the claim area.

615 Another special lease was purportedly granted in 1977 to K J Lilly in the Goose Hill area under s 116 of the Land Act 1933 for "grazing" for a period of five years. The area concerned comprised partly land formerly in Reserve 2049, partly in Reserve 1059 (both reserves used for cattle watering and resting) and partly in the area which had been the subject of the Permit to Occupy granted to the Wyndham Freezing, Canning and Meat Export Works. In respect of the former areas we have held that native title was partially extinguished first by the grant of pastoral leases and then by the use of the reserves, and in the latter area we have held that native title was totally extinguished by the grant of the Permit to Occupy.

616 Of the ten remaining special leases, one is in respect of a large area for "grazing" to Northern Australian Estates Limited, six are for parcels of land within those lands resumed for the Ord Project under s 109, and the remaining three special leases were for a tourist resort, a jetty and boat landing, and for concrete production in areas close to the main Dam. In respect of all but the Northern Australian Estates Limited special lease, we have already held that native title has been wholly extinguished in respect of those lands resumed or acquired for the Ord Project.

617 The Northern Australian Estates Limited special lease was granted for a period of twenty-one years in 1962 covering 90,573 acres in the northern part of the claim area. The land is surrounded by the Carlton Hill pastoral lease, and most of it is not part of the claim area. There is however a small portion of the land which extends into the mud flat area below the high water mark which is subject to the claim. That part of the area was in earlier times the subject of early pastoral leases. Those pastoral leases had the effect of extinguishing the exclusivity of native title.

618 Under s 116 of the Land Act 1933 the Minister was empowered to grant leases of any Crown land in the form of the Twenty-first Schedule for a term not exceeding twenty-one years for any one of a number of prescribed purposes, and "for any other purpose approved by the Governor by notice in the Gazette". "Grazing" was first gazetted as a prescribed purpose on 2 March 1934 and has remained a prescribed purpose since then.

619 The trial judge decided that neither the grant of special leases under the Land Act 1933 nor the authorised use of land extinguished native title. His Honour arrived at that conclusion as the terms of the leases were for terms of years short in duration, most had conditions endorsed which indicated an intention of the Crown that the use of the land under the lease would not be permanent, and that the land would resume its former character as vacant Crown land on the expiration of the lease. Conditions included an express statement that compensation would not be payable for improvements on expiration or early determination, and required the land to be left in a neat and tidy state on determination of the lease. His Honour concluded that there was no extinguishment of native title as the leases did not contemplate a permanent improvement of the land amounting to the exercise of adverse dominion. In approaching the question of extinguishment on this basis, for the reasons already given, we consider his Honour fell into error.

620 Prior to 1981, definitions in s 3 of the Land Act 1933 of "Crown lands" and "pastoral lease" had the consequence that lands subject to a special lease remained Crown lands, and a "pastoral lease" meant a lease of any area of Crown land to any person for grazing purposes. The trial judge held that it followed that s 106(2) applied to reserve to Aboriginal people the right to enter upon unenclosed and unimproved parts of the land the subject of the special leases to seek their sustenance in their accustomed manner. If that were the case, for the reasons already advanced in relation to pastoral leases, the grant of a special lease for grazing purposes would not evidence a clear and plain intention to extinguish native title.

621 We are however unable to agree with his Honour's conclusion that s 106(2) applies to a special lease for grazing purposes. If that were the case every reference in Part VI of the Land Act 1933, dealing with pastoral leases, would extend to leases issued under s 116 for grazing purposes. Many of the references in Part VI are inconsistent with the provisions of s 116, for example the requirements of an application in a particular form, the requirement of a deposit, and the form of the lease. Special leases, in contra-distinction to leases under Part VI, are subject to an entirely different regime. It is anomalous that by the prescription under s 116(14) of "grazing" as a purpose for a special lease, the literal terms of the definition of pastoral lease apply to a special lease for that prescribed purpose. On the proper construction of the Act, we do not think that s 106(2) applied to a special lease prior to the amendment to the definition of pastoral lease enacted in the Land Amendment Act (No 2) 1980 (WA) which expressly confined the definition of "pastoral lease" to leases issued under Part VI.

622 It is necessary therefore to consider whether the statutory rights granted to the lessees were inconsistent with the continued enjoyment of the non-exclusive native title rights which survived the earlier pastoral leases and, in the case of the lease to K J Lilly, of the other prior grants.

623 The evidence as to the lease to K J Lilly indicates that a formal lease in accordance with the Twenty-first Schedule was not issued. Rather, in a separate document conditions of a lease purportedly granted under s 116 of the Land Act 1933 was prepared and given to

K J Lilly. The absence of a formal lease in the appropriate form is one of the grounds advanced by the applicants in support of a contention that there was no valid grant to

K J Lilly. We put that argument aside for the moment.

624 The document evidencing the purported lease, after stating that it is issued under s 116 for the purpose of "grazing" for a term of five years, sets forth seventeen conditions which restrict the use of the land, regulate the destruction of timber, deal with the erection and maintenance of improvements, and require the control of stock within designated boundaries. There are conditions as to fencing, and power is reserved to the Minister to direct that the number of stock depastured on the demised land shall be reduced if the Minister is of the opinion that the demised land is overstocked. Further, the lessee is prohibited without the previous consent in writing of the Minister from assigning, transferring, mortgaging or subletting or parting with possession of the land.

625 The lease to Northern Australian Estates Limited was in the form required by the Twenty-first Schedule. Those scheduled conditions limit the use of the land to grazing, and contain a number of reservations permitting the Minister to re-enter, and to resume a portion of the land if necessary for public purposes. The lease contains additional conditions which have been typed at the foot of a printed lease in the form of the Twenty-first Schedule as follows:

"Provided also that the Lessee shall not destroy or otherwise in any way interfere with timber or scrub growing on the demised land. Provided also that no compensation shall be payable for any improvements effected by the Lessee on the demised land existing thereon at the expiration or earlier determination of the lease. Provided also that this lease shall be subject to determination at the expiration of six months' notice in writing given by Our Minister for Lands to the Lessee or by the Lessee to Our Minister for Lands. Provided lastly that the Minister for Lands shall be at liberty to reappraise the rent payable per annum in respect of the said land for each period of seven years of the term herein granted."

626 The trial judge commented that in relation to the lease to Northern Australian Estates Limited, it was for the limited purpose of grazing, and the right to terminate on notice suggested that the lessee's interest bore some of the characteristics of a licence: see R v Toohey; Ex parte Meneling Station Pty Ltd at 340-344 per Mason J and at 352-354 per Wilson J. That is so, but the lease is in the form of a demise, and we do not think it can be characterised as a mere licence.

627 In neither case is there a reservation reserving rights of access to Aboriginal people. Nevertheless, having regard to the limitation of use to grazing purposes, the other limitations contained in the leases, and the substantial areas involved we consider that in accordance with the majority judgments in Wik, these special leases for grazing purposes do not evidence a clear and plain intention to grant to the lessees possession which is exclusive of all rights of Aboriginal people. As in the case with the pastoral leases, we think that if there had been no prior extinguishment of exclusive native title rights, the rights granted to the lessees under each of the special leases would have had the effect of extinguishing the exclusivity of those rights. However, that exclusivity had already been extinguished by earlier grants. In the result, we do not think that the leases to K J Lilly (if valid) and to Northern Australian Estates Limited brought about any further extinguishment.

628 In light of this conclusion it is not necessary for us to further consider the applicants' contention that there was no valid grant to K J Lilly (a grant which in any event has been terminated).

(iii) Leases of reserves under s 41a of the Land Act 1898 (WA) and s 32 of the Land Act 1933 (WA)

629 Under s 41a of the Land Act 1898 the Governor could grant a lease of a reserve from year to year, or a shorter term where the reserve was not immediately required for the purpose for which it was made, the lease to be subject to such conditions as the Governor thought fit.

630 Under s 32 of the Land Act 1933 the Governor is empowered to lease a reserve for any purpose if it is not immediately required for the purpose for which it is made. The term of the lease is not to exceed ten years. However if the land is to be leased for more than one year it is necessary for the Governor to call for applications by notice in the Government Gazette.

Lease of part of reserve 1059 - "Public utility"

631 In 1927 the Executive Council approved a minute prepared by the Minister for Lands giving approval for the grant of a lease under s 41a of the Land Act 1898 to R G Skuthorp of land within this reserve for "Business and Garden Area". For reasons given by the trial judge at ALR 626-627 his Honour was not satisfied that a lease was ever issued, or that if it did issue pursuant to that authority it was valid. It is however unnecessary to explore that issue as a further lease was issued in respect of the same land in the reserve on 1 October 1958 to Mr Skuthorp under the provisions of s 32 of the Land Act 1933. Section 32 appears in Part III of the Act. The Fourth Schedule to the Act is headed "leases under Part III" but s 32 does not direct that that form be used. The form provides that if, without licence, the land is used otherwise than for the purpose for which it is leased, or is not used for the purpose for which it is leased within two years of the date of the lease, it is lawful for the Crown "into and upon the said land, or any part thereof, in the name of the whole to re-enter, and the same to have again, repossess and enjoy as if this demise had never been executed". The Fourth Schedule is in a form, and uses terms characteristic of a common law demise of a leasehold interest. The lease contains a right of resumption in respect of the whole of the land with compensation payable only for buildings and improvements. There are extensive reservations permitting resumption for a variety of public purposes and uses, and of minerals. The lease granted to Mr Skuthorp on 1 October 1958 was from year to year, but terminable at any time after the first year on three months notice by the Minister. It was not in the form of the Fourth Schedule, but it nevertheless contained many of the reservations prescribed in the Fourth Schedule. Importantly, neither the Fourth Schedule, nor the lease, contained a reservation in favour of Aboriginal people and s 106(2) has no application. The area leased was eighty acres.

632 The trial judge found that no development had occurred in the area of the lease, and noted that in 1968 Mr Skuthorp stated that the land was bushland on which there was a hut and well and that the market value of the land and improvements was one hundred dollars and no more. His Honour said at ALR 628:

"It is difficult to see that a lease for a term of one year, of land reserved for a specific purpose, to wit, public utility, can be intended to operate to convey such permanent interest as necessary to extinguish native title. There is insufficient material to determine how the land was used and it should be concluded that native title was not extinguished in respect of this area by the grant of the lease to Skuthorp in 1958...

The area leased to Skuthorp was a lease of land subject to the reserve, not a lease of land excised from the reserve and leased to Skuthorp for a purpose inconsistent with the purpose of the reserve. The intention of the Crown in creating such an interest has to be ascertained in that context. The fact that the Crown is not prepared to grant more than a lease from year-to-year determinable on three months notice of land within reserve for public utility, suggests that consistent with the terms of s 32 of the Act, the Crown contemplated that the land was to remain available for the purpose of the reserve despite the issue of the lease."

633 We respectfully differ from the trial judge in the significance to be placed on the fact that the lease was of reserved land. The lease recognises that fact, but in our opinion it is not relevant in determining the nature of the grant made to the lessee. The power to lease is the power to be exercised when the reserve is not immediately required for the purpose for which it was made, and there is no evidence to suggest that the power was exercised in breach of this condition. The power to lease in s 32 is a power to lease for any purpose. In determining whether native title is extinguished wholly or partially, it is necessary to ascertain the rights granted to the lessee under the terms of the lease, and to compare those rights with the legal nature of the native title right which is asserted. If the rights granted to the lessee are such that the native title right cannot be exercised without abrogating the statutory right granted by the lease, by necessary implication the statutory right extinguishes the native title right. The State contends that there is an inconsistency of rights that brings about extinguishment, and in considering this contention it is not material to consider how the land was in fact used. Critical to this comparison of rights is the question whether the lease grants to the lessee a right to possession which is necessarily exclusive of the continued enjoyment of native title rights. If so, all native title rights then remaining will be extinguished unless from the terms of the grant, or surrounding circumstances, it appears that the grant of exclusive possession was intended to be only of such short duration that the inconsistency of the rights does not clearly and plainly indicate that native title rights are to be abrogated. In the case under consideration, although the lease was only from year to year it was anticipated that it would continue indefinitely until the land was resumed by the Minister.

634 As we have observed the lease is in the form of a common law lease under which a leasehold interest is demised for a term. The area of land is not extensive. Neither the area leased, nor the purpose of the lease is such as to suggest that, notwithstanding the terms of the lease document, exclusive possession was not intended. There is nothing in the lease to suggest that it was to operate only as a licence. There is no reservation in favour of Aboriginal people. In our opinion the document was correctly described as a "lease", and that it granted to the lessee a right of possession for the duration of the lease which left no room for the continued enjoyment of native title rights.

Lease of part of Reserve 1600 - "Public Purpose"

635 The State asserted that in 1956 a lease of five acres within reserve 1600, near Goose Hill, was made to L Manton for the purpose of a market garden. As the area of the lease is outside the determination area, the trial judge made no finding as to whether a lease was in fact issued, and there is no need for us to consider the question.

Lease of part of Reserves 1061 - "Public utility", 1164 - "Public utility" and 18810 - "Tropical Agriculture"

636 It is necessary to consider a number of leases which touch these reserves.

637 A lease was granted in October 1977 to the Ivanhoe Grazing Co Pty Ltd for portions of these reserves under s 32 of the Land Act 1933. The term of the lease was said to be for one year commencing 1 October 1966, renewable at the will of the Minister and determinable after the first year on three months notice by either side. The lease was granted for the purpose of "grazing", and covered some 7,425 hectares between Kununurra and Wyndham on the south bank of the Ord River. The land was open country contiguous with land in the Ivanhoe pastoral lease. The whole of the leased reserves were within the Noogoora Burr Quarantine Area. It was a condition of the lease that the public had free and uninterrupted use of the roads and tracks which exist on the land. That lease was cancelled in 1987.

638 In 1993 a lease of approximately the same area of the reserves was issued to Crosswalk for a term of one year commencing in July 1992, again determinable on three months notice after the first year. The leased area is known as King Locations 736 and 744. The lease comprised in part a printed form completed with particulars of the lease, and in part a schedule of additional conditions. The terms of the printed form contained terms, conditions and reservations similar to those contained in the lease of reserve 1059 to Mr Skuthorp. There is no reservation in favour of Aboriginal people.

639 The schedule of conditions require that the land not be used for any purpose other than grazing without the prior approval of the Minister. Conditions 4 and 5 provide:

"4. The Lessee shall not without the previous consent in writing of the Minister assign, transfer, mortgage, sublet or part with the possession of the demised land.

5. The land shall be continuously occupied and used by the Lessee for the purpose specified to the satisfaction of the Minister."

Other conditions required the fencing of external boundaries within twelve months, the maintenance of improvements, the permission of the Minister for the erection of structures, imposed a restriction against cutting down or damaging live timber or scrub and a condition permitting the Minister or his representative to enter the land to inspect the property at any reasonable time. The schedule also contains conditions providing for the holder of a miner's right to enter, a right in the lessee at any time within three calendar months following the expiration of the term or early determination of the lease to take down and remove building structures and improvements, an obligation to make good the land thereafter and to leave "the demised land" in a clean, neat and tidy condition to the satisfaction of the Minister, and a condition reserving to the Minister power to direct the number of stock depasturing on the demised land.

640 The trial judge held that the Crosswalk lease did not affect native title. Again, he considered it significant that the land leased was, in part, reserved for public utility, that the purpose of the lease was limited to the use of grazing, and that the lease was for a short term. His Honour considered that the grant of the lease involved no contemplation of exclusive use of the land or permanent alteration of the land by the actions of the lessee.

641 In this instance the area leased was substantial, and was for an activity likely to be less intense than was the case in the lease of Reserve 1059. The possessory title granted to Crosswalk is heavily qualified, not only by the limited purpose for which it was granted and the extensive reservations and controls imposed by the conditions in the lease, but by the further condition that:

"The public shall have at all times free and uninterrupted use of roads and tracks which may exist on the demised land consistent with the efficient operation of the lease."

This condition is not limited to use by motor vehicle, or for any particular purpose. It is wide enough in its terms to encompass walking tracks which may exist. We consider the breadth of this condition is contrary to an intention to grant rights to the lessee that are inconsistent with the enjoyment of any native title rights. We consider this special lease is inconsistent with the exclusivity of native title rights, but leaves room for the co-existence on terms of reasonable user of the native title rights which survived the earlier pastoral leases.

642 In January 1991 a lease was purportedly granted to Messrs Harman and Osborn for an initial one year term commencing 1 July 1990 for an area of 8,000 square metres. The lessees operated a fishing safari known as "Ultimate Adventures". The area was used as a basic camp facility for tourists engaged in fishing excursions conducted by the lessees.

643 It seems that administrative difficulties arose in relation to the issue of the lease and a transfer to new proprietors of the business. The lease was therefore terminated on 31 December 1992 and a new lease was issued in respect of the same area to G & J Harman. Again the lease was for an initial term of one year commencing on 1 July 1993 and thereafter from year to year determinable after the first year on three months notice for the purpose of "tourist and travel stop facility".

644 The fact that this lease, and a number of other leases of reserves proved in evidence, were granted for one year, and thereafter from year to year, was no doubt a response to the requirement in s 32 of the Land Act 1933 that no lease be granted for a term exceeding one year unless applications are called for by notice in the Government Gazette.

645 The lease comprises a printed form in terms of the Twenty-first Schedule as required by s 32 of the Land Act 1933, and a typed schedule of additional conditions. Additional condition 1 provides that the land shall not be used for any purpose other than "tourist Camp Facility" without prior approval in writing from the Minister. Condition 4 imposes a restriction on dealing with the lease without the consent of the Minister. Conditions 5 and 6 provide:

"5. The land shall be continuously occupied and used by the Lessee for the purpose specified to the satisfaction of the Minister.

6. The lessee shall maintain existing and future improvements to the satisfaction of the Minister."

646 Further conditions impose restrictions on cutting down living timber or scrub, a prohibition on keeping dogs on the land, a requirement to install and maintain at the lessees' expense "firefighting and control equipment to the approval of the Minister", and a right to remove improvements within the three months immediately following the expiration of the term, and a condition relating to the disposal of effluent and rubbish. The improvements on the land consist of a residence, kitchen area, bough sheds for tourist camping, a barbeque facility, water tank, a pump, waterlines, ablution facilities and a generator for power. These improvements were apparently carried out under the first lease, and before the grant of the lease to G & J Harman but the second lease envisaged that the improvements would be used and maintained.

647 Having regard to the small area involved, and the purpose of the lease, we are of the opinion that the lease under s 32 granted to the lessees a right of occupation and possession exclusive of the interests of all other people, including Aboriginal people, save for the limited rights of entry reserved to the Minister in accordance with the reservations specified in the Twenty-first Schedule, and in an additional condition which permitted the Minister or his representative to enter the land to inspect the property at any reasonable time.

648 This conclusion makes it necessary to consider whether the "past act" provisions of the NTA operate to extinguish native title that would otherwise not be affected by a grant made after the enactment of the RDA. If the lease is a category A past act as defined in s 229 of the NTA it will extinguish native title by operation of ss 15(1)(a) and 19 of the NTA and s 5 of the Titles Validation Act 1995 (WA).

649 Section 229(3) of the NTA provides:

"(3) A past act consisting of the grant of:

(a) a commercial lease, an agricultural lease, a pastoral lease or a residential lease; ...

(b) ...

is a category A past act if:

(c) either:

(i) the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) or (9) applies; and

(d) the grant is not:

(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity..."

650 A commercial lease is defined in s 246 as follows:

"(1) A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. The defining of agricultural lease, pastoral lease and residential lease in sections 247, 248 and 249 is not intended to limit the coverage of commercial lease.

Examples of a commercial lease

(2) For the purposes of subsection (1):

(a) construction on land of a building to be used for business or commercial purposes, or of a hotel, motel or tourist resort, is an example of use of the land for business or commercial purposes; and

(b) use of a building on land for business or commercial purposes, or operation of a hotel, motel or tourist resort on land, is an example of use of the land for business or commercial purposes."

651 In our opinion the leases, year by year, to G & J Harman fall within the definition of "commercial lease". By quirk of the dates of the terms of the leases, one term expired on 31 December 1993, and a new lease commenced on 1 January 1994. The requirement of s 229(3)(c)(i) was therefore not fulfilled. However, we consider that the lease comes within s 229(3)(c)(ii) as a grant made on or after 1 January 1994 which is a category A past act because of s 228(3) which relevantly provides that an act which takes place on or after 1 January 1994 is a "past act" if it takes place:

"...in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made..."

In our opinion the renewal of the lease each year gives effect to an "offer, commitment, arrangement or undertaking" which was plainly made in good faith before 1 July 1993, namely on 12 February 1993 when the lease was executed.

652 In January 1991 the first of two leases was granted to the Agricultural Protection Board, a Government instrumentality, over another portion of the reserve. The first lease was stated to commence on 1 July 1990 in respect of an area of 5.85 hectares in the District of King, Location 733. The land in question was actually in King Location 743. To overcome the mistake in the description in the first lease, it was terminated, and a new lease effective from 1 April 1992 was issued in respect of the same land and on similar terms save for the description of the location. Both leases were issued under s 32 of the Land Act 1933 for a term of one year and thereafter from year to year but terminable on three months notice by either party. The leases were granted for the purpose of "Residential (Government)" to provide a camp and facilities for officers of the Agricultural Protection Board working in the Noogoora Burr Quarantine Area. The leases comprised printed forms in terms of the Twenty-first Schedule with typed additional conditions. Those additional conditions include conditions similar to those in the lease to G & J Harman but there are other conditions as well.

653 Even if under these leases the Agricultural Protection Board were granted a right of exclusive possession, the lease in force at 1 January 1994 is not a category A past act. It is not a lease of a kind which meets the requirements of s 229(3)(a), and in any event the grant is excluded from the definition of a category A past act by s 229(3)(d)(i) as a grant by the Crown in any capacity to a statutory authority of the Crown. For like reasons it is not a category B past act. It is therefore a category D past act, and as such the non-extinguishment principle applies: s 15(1)(d) of the NTA, as applied by the Titles Validation Act (WA).

Lease of Reserves 2049 - "Resting Place for Stock", 16729 - "Use and Requirements of the Government of the State in connection with the Wyndham Freezing, Canning and Meat Export Works"

654 In January 1956 a lease of portion of reserve 2049 and of reserve 16729 was granted to Mr R K Skuthorp, the area was approximately 2,440 hectares, and the purpose of the lease was for grazing. It was a lease from year to year determinable on three months notice after the first year. It was cancelled in 1969. In April 1972 a lease of a slightly larger area, 2,936 hectares, including the above land, was granted to E J & M S Lilly, again for a term of one year, renewable at the will of the Minister, and determinable on three months notice on either side. Both leases were granted under s 32 of the Land Act 1933.

655 Approximately three quarters of the land the subject of these leases was land that had earlier been subject to the Permit to Occupy which we have held totally extinguished native title rights. In respect of the balance of the land, within reserve 2049, we have held that the use of the reserve for the purpose for which it was established extinguished the exclusivity of native title rights. The reservations in these leases are extensive, and not dissimilar to those contained in the 1958 lease of Reserve 1059 granted under s 32 of the Land Act 1933 discussed above. The differences between the leases concern the areas leased and the purpose of the leases. One was for eighty acres for the purpose of "Business and Garden Area", the other was in excess of two thousand hectares for grazing. Do these factors in themselves provide a sufficient ground for distinguishing the two cases? Having regard to the emphasis given in the majority judgments in Wik to the limited purpose of the lease we conclude that a distinction should be drawn. We are not satisfied that the grant of the lease to E J & M S Lilly for grazing wholly extinguished native title rights which survived the early grants and use of Reserve 2049.

(iv) Leases of reserves under s 33 of the Land Act 1933 (WA)

656 One reserve in the claim area, reserve 31165 - "Government Requirements" - has been the subject of leases under s 33 of the Land Act 1933. That reserve now comprises the large area of land to the south-east and south of Lake Argyle, and includes the lands resumed from Lissadell and Texas Downs, and some of the former Argyle Downs pastoral lease. It is presently leased as to part (King Location 374) to Baines River, and the balance was leased to M E Green Pty Ltd for grazing purposes from 1986 to 1997. In respect of the area comprised in Reserve 31165 we have held that native title has been wholly extinguished by the appropriation of the land to the Ord Project.

Reserve 31165 was first created in 1972, and thereafter underwent a number of alterations in size. At one time it took in land to the north of the present reserve that was the subject of other leases under s 33 of the Land Act 1933. However, as that land was part of the former Argyle Downs pastoral lease it is also land in respect of which we have held that native title has been wholly extinguished. It is therefore unnecessary for us to consider the lease of the reserve in December 1973 to Fielder Downs (WA) Pty Ltd, and the subsequent assignment of that lease, or part of it, to the Aboriginal Lands Trust (considered by the trial judge at ALR 630-632).

(v) Leases of reserves under the Aboriginal Affairs Planning Authority Act 1972 (WA)

657 The Aboriginal Lands Trust is a body corporate established under the Aboriginal Affairs Planning Authority Act 1972. Reserves 26600, 40260 and 40536 each for "Use and Benefit of Aboriginal Inhabitants" are vested in the Aboriginal Lands Trust. Pursuant to powers contained in ss 20(3)(c) and 30(c) of the Aboriginal Affairs Planning Authority Act, the Aboriginal Lands Trust has leased each of these reserves for the use and benefit of Aboriginal peoples. Reserve 26600 is leased to the Mirima Council Inc under a ninety-nine year lease at a peppercorn rental. Reserve 40260 is leased to the Gulgagulganeng Aboriginal Corporation under a ninety-nine year lease at a peppercorn rental. Reserve 40536 is leased to the Ribinyung Dawang Aboriginal Corporation, again on a ninety-nine year lease at a peppercorn rental. The areas of land covered by these leases are included in the claim area. When the application was made one or more members of the native title claim group occupied the area of each reserve. Pursuant to s 47A(1)(b)(i) leases were in force in respect of those areas of land under legislation that makes provision for the grant or vesting of such a lease only to, in or for the benefit of Aboriginal peoples. Accordingly, pursuant to s 47A(2) extinguishment brought about by the grant of prior interests in those areas is to be disregarded for all purposes under the NTA.

Creation of Lake Kununurra and Lake Argyle

658 The trial judge concluded that whilst the Ord Project altered the landscape and put lands flooded by waters of the lakes beyond the reach of the holders of native title, native title was nevertheless not extinguished in the areas of the lakes. For reasons already given, the appropriation of the lands to the Ord Project, and the implementation of the project had the effect of wholly extinguishing native title in the areas of the lakes, and beyond.

Titles Validation Amendment Act 1999 (WA)

659 The Alligator appellants in written submissions, and by way of alternative argument, sought to invoke the Titles Validation Amendment Act 1999 (WA) which was assented to and came into effect on 12 May 1999, after the trial judge delivered the judgment. That Act made provision in relation to native title as permitted by the NTA under s 22F of the NTA to validate past acts and intermediate acts attributable to the State and to provide for the effects of the validation, and under ss 23E and 23I of the NTA to confirm the effect on native title of acts attributable to the State done on or before 23 December 1996. It was contended that if native title had not already been extinguished in respect of a number of grants to particular appellants within the Alligator group, that Act would have the effect of validating the grants and confirming extinguishment. In light of the conclusions that we have reached as to extinguishment, the premise on which the alternative submissions are advanced does not arise. However, it should be noted that a right of appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal in the strict sense and not by way of

re-hearing. Accordingly, the Court must consider and apply the law as it stood at the date of the hearing at first instance, and not at the date of hearing of the appeal: Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342 and Petreski v Cargill (1987) 18 FCR 68. If legislation which comes into force after the operative date of the determination affects native title in a way that contradicts the determination, power exists under s 13(1) of the NTA for the Court on application under s 61 to vary or revoke an approved determination.

Fishing

660 In the Croker Island Case the majority of the Full Court held that non-Aboriginal members of the public have a common law right to fish in tidal waters, and ancillary rights to dig bait, and to take shellfish and worms: 470, 471-472. Earlier in these reasons we have held that the determination of native title should recognise this public right which has the effect of extinguishing the exclusivity of native title rights to fish in the intertidal waters which form part of the claim area: see para 216 above.

Disposition of Appeals

661 It follows from the conclusions expressed above that appeals WG6293 of 1998 by the State, WG6292 of 1998 by Crosswalk and Baines River, WG6294 of 1998 by the Alligator appellants, WG6295 of 1998 by Argyle and WG6296 of 1998 by the Territory must be allowed in part, and that the cross appeal by the Kimberley Land Council in appeal WG6293 of 1998 must be dismissed. The orders and determination of the trial judge must be set aside and a determination that reflects this judgment must be entered.

662 In many but not all parts of the determination area where native title has not been wholly extinguished we have held that partial extinguishment has occurred. It is necessary that the determination differentiate between areas where there has been no extinguishment of native title and other areas where partial extinguishment has occurred.

663 No extinguishment has occurred in respect of Booroongoong (Lacrosse Island), Kanggurryu (Rocky Island), and the north-west extremity of the mainland area of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, outside the limits of the former Carlton Hill Station pastoral lease 3114/1058. In respect of those areas, and Reserve 40260 which is outside the area of the Ord Project, and is subject to the operation of s 47A of the NTA, there should be a determination that the common law holders of native title are entitled as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area. A determination in similar terms was made in Mabo [No 2].

664 In respect of Reserves 26600, 31221, 40536 and 41401, each for "Use and Benefit of Aboriginal Inhabitants", Reserve 31504 for "Arts and Historical -- Aborigines" and Reserve 32446 "Native Paintings", being reserves within the Ord Project area to which s 47A of the NTA applies there should be a determination that the common law holders of native title are entitled as against the whole world to possession, occupation, use and enjoyment of those parts of the determination area, save that their entitlement does not affect the public works comprising the Ord Project.

665 In the balance of the determination area where native title has not been wholly extinguished, we have held that the exclusivity of native title rights to possess, occupy, use and enjoy the land has been extinguished. To the extent that legislation (in the case of nature reserves, minerals and petroleum) or executive action (in the case of pastoral and other kinds of lease) have created rights in the Crown or third parties that are inconsistent with the continued enjoyment of native title rights and interests, native title rights and interests yield to the extent of the inconsistency and are extinguished.

666 We have earlier referred to criticisms made by the appellants as to the description of particular native title rights and interests in paragraph 3 of the determination under appeal. We agree with the appellants that rights in relation to "resources" must be limited so as to exclude minerals and petroleum. It was contended that paragraph 3(j) of the determination described rights of a kind which are not recognised by the NTA as rights in relation to land.

Paragraph 3(j) described:

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

Although the relationship of Aboriginal people to their land has a religious or spiritual dimension, we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title. The right to maintain, protect and prevent the misuse of cultural knowledge is not a burden on the radical title of the Crown, and is not a right that can be extinguished by legislation or executive act. Indeed, we have already held that the spiritual or religious connection of Aboriginal people with their land can continue even after rights recognised by the common law have been extinguished. The right to maintain, protect and prevent the misuse of cultural knowledge is a personal right residing in the custodians of the cultural knowledge, independent of rights which can be the subject of a determination.

667 We propose to publish with these reasons a draft determination to be substituted in lieu of the determination made at trial, giving leave to the parties to make submissions as to its terms including, if it is thought necessary, as to a more precise delineation of particular areas within the determination area which in the draft determination are described generally by reference to an exhibit or a statutory grant identified in the evidence.

Costs

668 We noted earlier in these reasons (at para 42) that the trial judge dealt with costs in a separate reserved judgment. His Honour ordered that the State and the Territory pay the costs of the applicants as to ninety per cent thereof, seventy-five per cent to be paid by the State and twenty-five per cent by the Territory. The State and the Territory now appeal from this order. The Territory applicants appeal against the order which refused their application for costs.

669 His Honour's determination of native title was made on 24 November 1998. Section 85A of the NTA, inserted by the amendments made in 1998, and which commenced on 30 September 1998, made special provision for costs in proceedings under the NTA.

670 His Honour held (at ALR 156) that since s 85A was a procedural measure, and did not affect substantive rights, it could operate here.

671 Section 85A provides:

"(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable Conduct

(2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."

672 Before s 85A was inserted, the NTA contained no provision relating to costs.

673 Referring to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 72 ALJR 578, his Honour said (at ALR 155-156):

"It is not a requirement of s 85A that a threshold condition be met before the court is empowered to order the payment of costs: see Oshlack per Gaudron and Gummow JJ at 582. The court is not required to be satisfied that circumstances exist that `justified' an order for costs before such an order may be made. It follows even more plainly that the exercise of the discretion is not conditioned upon a finding of fact, or formation of an opinion, as to the occurrence of unreasonable conduct in the litigation, or existence of special reasons or particular circumstances for the making of such an order. What the court will keep in mind is that there is to be no expectation that costs follow the event.

Section 85A(2) makes it clear that the court may order any party, including a successful party, to pay costs incurred by others by reason of unreasonable conduct by that party in the litigation. Such a statement does not add to the discretion already possessed by the court but reflects the public interest in such conduct being subjected to the penalty of an appropriate costs order. The subsection puts beyond doubt the extent of the court's discretion: see Oshlack per Gaudron and Gummow JJ at 586."

674 His Honour said of s 85A (at ALR 155):

"The discretion of the court to award costs is not confined. The matters to be taken into consideration in making such an order are left to the court as a discretion to be exercised judicially. But the starting point will be that each party will bear their own costs unless the court determines that it is appropriate in the circumstances to make an order for costs."

675 His Honour went on to hold (at ALR 157) that the essence of this litigation was the determination of private rights, and that it was not a case in which the nature of the public interest in the litigation made it appropriate that each party bear their own costs.

676 In deciding to order costs against the State and the Territory, his Honour said (at ALR 157):

"Having been put to proof of a complex case by the State and the Territory and having succeeded in that litigation, it is just that the first applicants recover some part of the considerable costs incurred in presenting that case. Account may also be taken of the fact that, in all material respects, the litigation was prepared and completed under the usual rule that parties may expect costs to follow the event."

677 In the event, we have come to conclusions, on some of the matters argued, that differ from the trial judge. In essence, the applicants have succeeded before us on the "connection" issues, but have been, on the whole, unsuccessful on the extinguishment issues. That is also the case with the Territory applicants, and the cross appellants in the State's appeal, who have been unsuccessful in having the determination varied to declare the separate interests of different estate groups. That being so, whether the matter is governed by the usual discretion as to costs reflected in s 43 of the Federal Court of Australia Act 1976, or by s 85A of the NTA, we think that it is appropriate, as between the applicants (including the Territory applicants) and the Balangarra Peoples on the one hand and the State and the Territory on the other hand, that there be no order for costs, either at first instance, or on the appeals or on the cross-appeal.

678 At trial the applicants did not seek costs against those parties who now comprise the Alligator appellants, or against Crosswalk, Baines River or Argyle. Before us those appellants have had a measure of success on extinguishment issues, but in all the circumstances of the case including that the State had the major carriage of the appeals, we do not think there should be any order as to costs either at trial or on appeal between these appellants and the applicant groups.

679 Accordingly, we propose to order (1) that his Honour's order as to costs be set aside; and that, in lieu thereof, there be no order for the costs of the proceeding at first instance; and (2) that there be no order for the costs of the appeals or for the cross-appeal. It follows that the Territory applicants' appeal against the refusal to award them costs of the trial in W 6020 of 1999 will be dismissed.

Associate:

Dated:

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Native title exists in the "determination area" save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal.

2. Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.

3. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in:

The whole of the land in the Glen Hill pastoral lease;

The whole of Reserve 40260;

Booroongoong (Lacrosse Island);

Kanggurryu (Rocky Island);

The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, being the mainland lying outside the limits of the former Carlton Hill Station pastoral lease 3114/1058;

The whole of NT portion 3541 (Policemans Hole);

The whole of NT portion 3542 (Bucket Springs), and

The whole of NT portion 3863 (Bubble Bubble)

are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area.

4. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for "Use and Benefit of Aboriginal Inhabitants", Reserve 31504 for "Arts and Historical -- Aborigines" and Reserve 32446 "Native Paintings", being reserves within the Ord Project area to which s 47A of the Native Title Act 1993 (Cth) applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the Ord Project.

5. Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows:

(a) a right to possess, occupy, use and enjoy the land;

(b) a right to make decisions about the use and enjoyment of the land;

(c) a right of access to the land;

(d) a right to use and enjoy the traditional resources of the land;

(e) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area.

6. The nature and extent of other interests in relation to the determination area are the interests created by the Crown as set out in the Third Schedule.

7. There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT).

8. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights.

9. The native title rights and interests referred to in paragraph 5 hereof do not confer on the common law holders possession, occupation, use and enjoyment of land and waters to the exclusion of all others.

10. The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia.

11. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by the common law holders.

Click Here for Picture:http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1998_147801.gif

Native title has been wholly extinguished in the following parts of the determination area:

1. All the land identified in Exhibits 21A and 21B as:

(i) Diversion Dam and Works Area (1960);

(ii) First Farm Area (1960);

(iii) Second Farm Area (1961);

(iv) Kununurra Townsite (1961) except for the area now comprised in Reserve 37883 - Mirima (Hidden Valley) National Park;

(v) Third Farm Area (1960-1962);

(vi) Kimberley Research Station Extension (1963);

(vii) Fourth Farm Area and Levy Bank (1967);

(viii) Packsaddle Farm Area (1972 and 1975);

(ix) The lands resumed from the Lissadell and Texas Downs Pastoral Leases in 1972, which now comprise part of Reserve 31165 (and include that part of Special Agreement Lease M259SA which is within the determination area).

2. The land formerly comprised in the Argyle Downs Pastoral Lease, and the freehold land surrounding the former Argyle Downs homestead (King Location 2) acquired by the Minister of Works under an Agreement for Sale signed on 23 November 1970.

3. Land in Reserves (being lands outside the areas already described in this Schedule).

(i) The whole of former Reserve 16729 ("Use and Requirements of the Government of the State").

(ii) The whole of Reserve 34724 ("Preservation of Historic Relics").

(iii) The whole of Reserve 40978 ("Repeater Station Site").

(iv) The whole of Reserve 39016 ("Repeater Station Site").

(v) That part of Reserve 42710 ("Quarantine Checkpoint") on which ablution blocks, a parking lot, power generator, fuel and water tanks, a tourist information shelter, shed and facilities for the Quarantine Checkpoint have been constructed and a reasonable curtilage surrounding those constructions.

4. Land in leases (being lands outside the areas already described in this Schedule).

(1) Pastoral leases

(a) Those parts of pastoral leases granted in the determination area under the Land Regulations 1882 (WA), the Land Regulations 1887 (WA) and the Land Act 1898 (WA) which were "enclosed and improved" within the meaning of the reservations in favour of Aboriginal people contained in the said pastoral leases.

(b) Those parts of pastoral leases granted in the determination area under the Land Act 1933 (WA) which were or are enclosed or improved within the meaning of s 106(2) of the Land Act 1933. Without limiting the generality of this subparagraph of the determination, it is declared that in land the subject of pastoral leases 3114/640 (Ivanhoe Station), 3114/1176 (Carlton Hill Station), 3114/1001 (Lissadell Station) and 3114/995 (Texas Downs Station) the areas agreed as "enclosures" in Exhibit 55, Schedules 1A to 1F, are enclosed lands within the meaning of s 106(2).

(ii) Other leases

The whole of the land in Lease 152/140 (Wallace and Others);

The whole of the land in lease 332/1175 (R G Skuthorp) being portion of Reserve 1059;

The whole of the land in lease 332/2177 (G & J Harman) being portion of Reserve 1061.

(iii) Mining Leases

M80/012 in area 95C, 96;

M80/014 in area 95C, 96;

M80/339 in area 95C, 96

M80/347 in area 5;

M80/401 in area 95C, 96

M80/402 in area 96;

M80/360 in area 29, 95M

M80/079 in area 29, 95M

Other interests in the determination area are of the following kind:

(a) Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease made for the purpose of the reserve.

(b) Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease made for the purpose of the reserve.

(c) Interests of lessees under:

(i) Leases granted under the Land Act 1933 (WA);

(ii) Leases granted under the Crown Lands Act 1978 (NT);

(iii) Leases granted under the Special Purposes Leases Act 1953 (NT);

(iv) Leases granted under the Mining Act 1978 (WA);

(v) Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth).

(d) Interests of licensees under:

(i) Licences issued under the Land Act 1933 (WA);

(ii) Licences issued under the Fish Resources Management Act 1994 (WA);

(iii) Licences issued under the Jetties Act 1926 (WA);

(iv) Licences issued under the Mining Act 1978 (WA);

(v) Licences issued under the Wildlife Conservation Act 1950 (WA);

(vi) Licences issued under the  Rights in Water and Irrigation Act 1914  (WA);

(vii) Licences issued under the Transport Co-ordination Act 1966 (WA);

(e) Interests of holders of permits issued under:

(i) The Land Act 1933 (WA);

(ii) The Ord Irrigation District By-Laws under the  Rights in Water and Irrigation Act 1914  (WA);

(f) Interests of holders of tenements under the Mining Act 1904 (WA).

(g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

(h) Interests of grantees under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT) and the Crown Lands Act 1978 (NT).

(i) Other interests obtained by reason of provisions of legislation of the State, Territory or Commonwealth.

(j) Other interests held by members of the public arising under the common law.

IN THE FEDERAL COURT

OF AUSTRALIA

WESTERN AUSTRALIA

DISTRICT REGISTRY

On appeal from a single judge of the Federal Court of Australia

JUDGES: BEAUMONT, von DOUSSA & NORTH JJ

DATE: 3 MARCH 2000

PLACE: PERTH

NORTH J:

Paragraph

Background ............................................................................................ 681

Agreement with Beaumont and von Doussa JJ ................................................... 682

The Extinguishment Question ...................................................................... 683

The General Approach to Extinguishment ............................................... 684

The Logical Imperative and the Purpose of the Concept

of Extinguishment ............................................................. 686

According Full Respect to Native Title Rights ................................. 694

Clear and Plain Intention ........................................................... 697

The Development of Inconsistency as the Criterion for

Extinguishment of Native Title ............................................. 711

Suspension of Native Title Rights and Interests ................................ 739

The Mineralogy Case ...................................................... 759

Regulation of Native Title Rights and Interests ................................ 767

Exclusive Possession Leases ...................................................... 776

Inconsistent Rights for Short Finite Periods .................................... 779

Partial Extinguishment - Bundle of Rights ...................................... 782

Some Reflections on the Proper Approach to the Development of

the Law Concerning Extinguishment ............................................... 797

Change as a Feature of the History of Property Law ................................... 805

Interests in Minerals and Petroleum ...................................................... 821

Lee J's Approach to Extinguishment ..................................................... 844

Some Specific Arguments of the Appellants on Extinguishment ..................... 846

Determination on the Question of Extinguishment ..................................... 861

Onus of Proof of Extinguishment ......................................................... 862

Recognition of a Native Title Right to Maintain, Protect and Prevent the

Misuse of Cultural Knowledge ............................................................... 863

Disposition of the Appeals .......................................................................... 870

Costs ................................................................................................... 871

680 I would dismiss the appeals against the decision of Lee J, reported as Ward & Others v State of Western Australia & Others [1998] FCA 1478; (1998) 159 ALR 483.

BACKGROUND

681 The judgment of Beaumont and von Doussa JJ in these appeals sets out the background facts (pars 2-21), the parties at the trial (pars 22-39), the general nature of the decision at first instance (pars 40-43) and the parties to and scope of the appeals (pars 44-54). I gratefully adopt this material for the purposes of my own judgment. I will not repeat that material except where necessary for convenience in expressing my reasons.

AGREEMENT WITH BEAUMONT AND VON DOUSSA JJ

682 I also adopt the summary of the findings on native title issues contained in the judgment of Beaumont and von Doussa JJ in these appeals (pars 121-169) and the summary of argument on the appeals relating to native title issues (pars 170-221). I agree with the reasoning and conclusions of Beaumont and von Doussa JJ on the native title issues in pars 222-280, save for the reference to extinguishment in the first sentence of par 279.

THE EXTINGUISHMENT QUESTION

683 As I see these appeals the question of central importance is the proper approach to the issue of extinguishment. It is on this issue that I differ from Beaumont and von Doussa JJ. Many of the questions concerning extinguishment are raised for Australian law for the first time by these proceedings. Only two decisions of the High Court have been decided on the issue of extinguishment. In Fejo v Northern Territory of Australia (Fejo) [1998] HCA 58; (1998) 195 CLR 96 the Court determined that the grant of a fee simple estate by the Crown extinguished native title, and in Yanner v Eaton (Yanner) [1999] HCA 53; (1999) 166 ALR 258 a majority of the Court determined that legislation regulating the keeping and taking of estuarine crocodiles did not extinguish native title. There is discussion of the question of extinguishment in Mabo v The State of Queensland [No 2] (Mabo [No 2]) [1992] HCA 23; (1992) 175 CLR 1 and The Wik Peoples v The State of Queensland (Wik) (1996) 187 CLR 1 which, although not determinative of those cases, is most important in the consideration of the present questions.

The General Approach to Extinguishment

684 In my view the following general propositions apply to the resolution of questions concerning extinguishment of native title:

(1) Native title as recognised by the common law is the title ascertained by reference to the traditional laws and customs of the aboriginal people. Native title reflects the connection of the aboriginal people with the land and is ordinarily a communal title and a right to the land itself.

(2) The concept of extinguishment of native title involves the consequence that native title is permanently and totally abrogated for the purposes of the common law.

(3) Native title may be extinguished directly or implicitly by the Crown by a law or executive act taken pursuant to such a law.

(4) Native title will only be extinguished if the Crown has displayed a clear and plain intention to extinguish native title. That is to say, the law or act must demonstrate that the Crown intended thereby to permanently and totally abrogate the right of the aboriginal people to the land itself.

(5) The holders of native title have rights and interests which flow from the right to the land. Thus, for instance, rights to undertake activities on the land derive from the right to the land. The right to the land is not abrogated by the abrogation of one or more of the rights and interests which derive from the holding of native title.

(6) The test for determining whether the law or act has extinguished native title is to ask whether there is a requisite inconsistency between the rights and interests created by the law or act and native title.

(7) There are degrees of inconsistency between rights and interests created by a law or act and native title. It is only where the inconsistency is of such a high degree that the necessary intention to extinguish native title is revealed. Such inconsistency may usefully be described as fundamental, total or absolute inconsistency. It must reflect the intention of the Crown to remove all connection of the aboriginal people from the land in question.

(8) Where there is inconsistency between the rights and interests created by the law or act and native title but the degree of inconsistency is not sufficient to extinguish native title, native title will continue. However, the rights created by the law or act will take priority over native title. The exercise of rights dependent upon the holding of native title will be curtailed to the extent necessary to allow the full enjoyment of the rights and interests created by the law or act. In this sense native title will be impaired by the creation of the inconsistent rights.

(9) Where the inconsistency is limited in duration such that the term of the native title is greater than the duration of the rights created by the law or act, the intention of the Crown thereby revealed is an intention to suspend the enjoyment of the rights dependent upon the holding of native title until the expiry of the term of the rights created by the law or act. Where the Crown makes an unqualified grant in fee simple the duration of the rights created by the grant is limitless. There is therefore a necessary absolute temporal inconsistency between the rights created by the law or act and native title, and native title is extinguished.

(10) In some cases the law or act which gives rise to rights and interests will not create a total inconsistency with native title immediately. But where the subsequent use of land pursuant to the rights and interests created by the law or act are totally inconsistent with native title in the sense described above, native title will be extinguished by that use of the land.

685 The considerations raised by these propositions will now be discussed under the following headings:

- The Logical Imperative and the Purpose of the Concept of Extinguishment;

- According Full Respect to Native Title Rights;

- Clear and Plain Intention;

- The Development of Inconsistency as the Criterion for the Extinguishment of Native Title;

- Suspension of Native Title Rights and Interests;

- Regulation of Native Title Rights and Interests;

- Exclusive Possession Leases;

- Inconsistent Rights for Short Finite Periods;

- Partial Extinguishment - Bundle of Rights.

The Logical Imperative and The Purpose of the Concept of Extinguishment

686 The question to be answered is whether a particular law or executive act extinguishes native title. A law or act may directly or indirectly extinguish native title, or it may create rights or interests in third parties which either on creation or by exercise of the rights or interests become inconsistent with native title sufficient to extinguish native title.

687 Extinguishment in the context of native title is used to mean to bring to an end forever. That is to say, the extinguishment of native title is meant to signify that native title thereafter ceases to exist. It is permanently abolished by the law or act.

688 This use of the word extinguishment is convenient as a shorthand reference. But it is inaccurate in a significant way. Whilst native title is not recognised by the common law in circumstances amounting to extinguishment, and is therefore ineffective under the common law system, native title does not cease to exist as an operative force among aboriginal people. It does not cease to exist for all purposes, only for the purposes of the common law. The use of the word extinguishment is apt to suggest that native title suffers a greater destruction than is the fact.

689 The consequences of the law or act said to extinguish native title give some indication of the necessary characteristics of such law or act. A minor or insignificant inconsistency between the rights or interests created and native title could not lead to such a far-reaching consequence as total abrogation of native title. There must be proportionality between the impact of the law or the act and the effect on native title. Only a law or act which has the effect of totally replacing native title by completely nullifying it will result in extinguishment of native title. The inconsistency between the law or act must be total, fundamental or absolute to effect extinguishment. Thus, where native title is a permanent right to land, only a law or act which has permanent consequences adverse to the existence of the right to land will extinguish native title. Such a law or act must give rise to rights which fully eclipse native title. Where the inconsistency is not total or absolute it is not necessary that native title be abolished in order to allow the unfettered exercise of inconsistent rights or interests. It is only necessary that the enjoyment of the rights and interests dependent upon the holding of native title is held in abeyance for the duration of the existence of the inconsistent rights or interests. As long as the exercise of the rights or interests dependent on native title is suspended, the exercise of inconsistent rights or interests is not impeded.

690 The matter can be tested by a simple example. For the sake of argument imagine an area of vacant Crown land outside a bush town. The local aboriginal community is able to establish native title to that land on the basis of a connection with the land reaching back for many hundreds of years. The site is of central spiritual significance, is used regularly for ceremony as well as for hunting and gathering, and it is not used by others at all. The local shire decides to hold a race meeting on the land as part of the celebration of the 25^th anniversary of the settlement of the town, and approaches the Commonwealth for permission to use the land for the purpose. The Commonwealth grants to the shire an exclusive possession lease for the day of the race meeting. The shire has no expectation that the event will be repeated in later years. The exclusive possession lease creates rights in the lessee which are temporarily inconsistent with some of the rights and interests dependent upon the existence of native title. The law could not hold that the inconsistent rights granted to the shire for one day bring to an end the native title of the aboriginal community dating back hundreds of years. Such a result is not necessary to achieve the protection of the granted rights. Rather, the exercise of rights under traditional aboriginal law dependent upon the holding of native title which are inconsistent with the granted rights are suspended for the day of the race meeting. Thereafter, those rights may be exercised again.

691 There are examples of some rights and interests under consideration in the present appeals which highlight the point. For instance, a one year lease of 8,000 square metres of land, at an annual rental of $500, was granted by the Crown for use as a campsite for tourists on fishing expeditions run by the lessees (ALR 596). Further, seventy metres of the foreshore of Lake Kununurra were leased by the Crown for five years for use for the hire of non-motorised aqua bikes (ALR 603), and 5.6 hectares were leased for one year as a jetty and boat launch facility on the shore of Lake Argyle (ALR 625). Each of these interests prevails over the rights and interests dependent on native title. However, there is no reason why the rights and interests of the native title holders, assuming no possibility of coexistence, do not become effective again when the rights granted to the lessees end.

692 Some light is cast on the issue by examining the purpose which the notion of extinguishment is designed to serve. It is accepted that native title must yield to the grant of inconsistent rights or interests. This means that the holders of inconsistent rights or interests are permitted full enjoyment of their rights or interests free of any impediment from native title holders. The purpose of the concept of extinguishment is to ensure that inconsistent rights or interests have priority over native title and override native title. It is aimed at ensuring that the rights or interests created by a law or act can be enjoyed without interference from the claims of native title holders. This purpose is achieved if extinguishment is confined to circumstances in which it is necessary that native title is abolished in order that the rights or interests created by the law or act can be fully effective. Where those rights or interests can be enjoyed without abolition of native title there is no place for extinguishment. The law will recognise consequences on native title short of extinguishment, such as suspension of the enjoyment of some of the incidents dependent upon the holding of native title, in order to allow full scope for the enjoyment of the inconsistent rights or interests. A balance is thereby achieved which allows unhindered exercise of inconsistent rights or interests but permits native title to survive and permits the rights or interests dependent on holding native title to be enjoyed without interfering with countervailing rights or interests.

693 Thus, the basic attractions of the concept that native title survives extinguishment from the creation of an inconsistent right or interest where the inconsistency is not permanent or exhaustive of the full scope of native title are twofold. One attraction is the logical conformity between the aim of the law or act and the legal consequences of that law or act, and the other is that it serves the purpose of shielding the inconsistent rights or interests from any impact by native title but does not have an effect on native title beyond the effect necessary to achieve that purpose. There is incongruity in the opposing proposition that the creation of a right or interest for a shorter time should cause an otherwise longer lasting interest to be displaced forever. Such a result is opposed to reason and justice. But is it opposed to authority?

According Full Respect to Native Title Rights

694 In determining that native title was recognised by the common law after the acquisition of British sovereignty, the majority of the High Court in Mabo [No 2] relied on a number of authorities which recognised a presumption that the Crown would grant full respect to the rights of existing inhabitants. It accepted the authorities on the basis that extending full respect to existing rights accords with fundamental notions of justice. Thus, Deane and Gaudron JJ said at 82-83:

"The strong assumption of the common law was that interests in property which existed under native law or customs were not obliterated by the act of State establishing a new British Colony but were preserved and protected by the domestic law of the Colony after its establishment. Thus, in In re Southern Rhodesia [1919] AC, at p 233, the Privy Council expressly affirmed that there are 'rights of private property', such as a proprietary interest in land, of a category 'such that upon a conquest it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected them and forborne to diminish or modify them'. Similarly, in Amodu Tijani v. Secretary, Southern Nigeria ('Amodu Tijani') [1921] 2 AC 399, at p 407, the Privy Council affirmed and applied the 'usual' principle 'under British ... law' that when territory is occupied by cession, 'the rights of property of the inhabitants (are) to be fully respected'.

In Adeyinka Oyekan v. Musendiku Adele [1957] 1 WLR 876, at p 880; [1957] 2 All ER 785, at p 788, the Privy Council expressly held that the assumption that pre-existing rights are recognized and protected under the law of a British Colony is a 'guiding principle'. In a judgment read by Lord Denning, their Lordships said:

'In inquiring ... what rights are recognized, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests ... '

That case was concerned with the position in a Colony established by cession and the above passage needs to be modified to take account of the fact that, as has been seen, the Crown had no prerogative right to legislate by subsequent proclamation in the case of a Colony established by settlement. Otherwise, the 'guiding principle' which their Lordships propounded is clearly capable of general application to British Colonies in which indigenous inhabitants had rights in relation to land under the pre-existing native law or custom. It should be accepted as a correct general statement of the common law. For one thing, such a guiding principle accords with fundamental notions of justice. Indeed, the recognition of the interests in land of native inhabitants was seen by early publicists as a dictate of natural law."

695 And to the same effect see the judgment of Brennan J, with whom Mason CJ and McHugh J agreed, at 57-58. Brennan J said:

"It must be acknowledged that, to state the common law in this way involves the overruling of cases which have held the contrary. To maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land."

696 It would be quite inconsistent with the basis upon which the majority in Mabo [No 2] held that native title was recognised by the common law to now hold that native title is extinguished by creation of an inconsistent right or interest where the inconsistent right or interest can be fully enjoyed if the rights and incidents of native title are suspended for the duration of the existence of the inconsistent right or interest. To hold that in such circumstances the native title is abolished forever would neither accord full respect to the rights of the native title holders nor would it provide justice for them. It must be stressed that to accord justice to native title holders in this fashion does not cause injustice to the holders of the granted rights or interests. It simply means that when those rights or interests are exhausted and no further inconsistent rights are created native title continues and the enjoyment of the incidents dependent upon the holding of native title can be resumed.

Clear and Plain Intention

697 It was doubtless with the principle requiring that full respect for existing rights under native title law or custom be accorded in mind that the High Court in Mabo [No 2] held that native title would only be extinguished if the clear and plain intention of the legislation or executive act taken under the legislation was to extinguish native title. Brennan J said at 64:

"However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealing with the extinguishing of the native title of Indian bands in North America. It is unnecessary for our purposes to consider the several juristic foundations - proclamation, policy, treaty or occupation - on which native title has been rested in Canada and the United States but reference to the leading cases in each jurisdiction reveals that, whatever the juristic foundation assigned by those courts might be, native title is not extinguished unless there be a clear and plain intention to do so: Calder v. Attorney-General of British Columbia [1973] SCR, at p 404; (1973) DLR (3d), at p 210; Hamlet of Baker Lake v. Minister of Indian Affairs (1979) 107 DLR (3d) 513, at p 552; Reg. v. Sparrow [1990] 1 SCR 1075, at p 1094; (1990) 70 DLR (4th) 385, at p 401; United States v. Santa Fe Pacific Railroad Co. (1941) 314 US , at pp 353, 354; Lipan Apache Tribe v. United States (1967) 180 Ct Cl 487, at p 492. That approach has been followed in New Zealand: Te Weehi v. Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680, at pp 691-692. It is patently the right rule."

Deane and Gaudron JJ said at 110-111:

"Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. The ordinary rules of statutory interpretation require, however, that clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation: see, e.g., The Commonwealth v. Hazeldell Ltd. [1918] HCA 75; (1918) 25 CLR 552, at p 563; Central Control Board (Liquor Traffic) v. Cannon Brewery Company Ltd. [1919] AC 744, at p 752; Clissold v. Perry [1904] HCA 12; (1904) 1 CLR 363, at pp 373-374 (affirmed [1907] AC 73): a case dealing with possessory title. Thus, general waste lands (or Crown lands) legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title. If lands in relation to which such title exists are clearly included within the ambit of such legislation, the legislative provisions conferring executive powers will, in the absence of clear and unambiguous words, be construed so as not to increase the capacity of the Crown to extinguish or diminish the native title.

...

The executive acts of the Crown under Crown or waste lands legislation will likewise be presumed not to have been intended to derogate from the native title."

698 Toohey J said at 195:

"As I have said, the plaintiffs did not contest the Crown's power to extinguish traditional title by clear and plain legislation. That concession was properly made, subject to a consideration of the implications that arise in the case of extinguishment without the consent of the titleholders. Where the legislation reveals a clear and plain intention to extinguish traditional title, it is effective to do so. In this regard traditional title does not stand in a special position, although the canon of construction referred to by Lord Atkinson in Central Control Board (Liquor Traffic) v. Cannon Brewery Company Limited [1919] AC 744, at p 752...is of equal application:

'That canon is this: that an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms.'"

699 These passages demonstrate that the majority required a clear and plain intention to extinguish native title to be expressed by legislation authorising the act of extinguishment whether the act was the direct result of the statute or whether it was the result of executive action taken under authority of the statute.

700 In Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 423 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:

"The State of Western Australia, acknowledging the presumption, sought to rebut it by showing that the British Crown, in acquiring the territory of Western Australia, manifested an intention to extinguish all native title to land in that territory. That intention was said to follow from the Crown's intention to assume absolute ownership of all land within the Colony. To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown's intention when exercising the prerogative power to acquire new territory."

701 In Wik the High Court considered whether the grant of pastoral leases under Queensland legislation necessarily extinguished native title. Each of the members of the majority held that the grant of the pastoral leases did not extinguish native title unless the legislature expressed a clear and plain intention that native title was to be extinguished by such grant.

702 At 123-124 Toohey J directly adopted the views expressed in Mabo [No 2] as follows:

"Later in his judgment Brennan J said [at 64]:

'However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive.'

The need for clarity of intention is spelled out in the judgments of other members of the Court."

703 Gaudron J said at 154-155:

"Given that the words 'lease' and the expression 'demise for a term of years' do not, of themselves, indicate that pastoral leases granted pursuant to the 1910 Act conferred a right of exclusive possession and given, also, the indications in the Act to the contrary, the question whether they conferred such a right is concluded in favour of the continued existence of native title rights by application of the rule of construction identified in Mabo [No 2] to which some reference has already been made. That rule is that general legislation with respect to waste lands or Crown land 'is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title': Mabo [No 2] at 111.

As Deane J and I explained in Mabo [No 2] the rule to which reference has just been made is not a special rule with respect to native title; it is simply a manifestation of the general and well settled rule of statutory construction which requires that 'clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation'": Mabo [No 2] at 111.

704 Gummow J said at 168-169:

"Rather, I begin with the proposition that for a statute such as the 1910 Act or the 1962 Act to impair or extinguish existing native title or to authorise the taking of steps which have that effect, it is necessary to show, at least, the intention, 'manifested clearly and plainly', to achieve that result. That is how the point was expressed in the joint judgment of six members of the Court in the Native Title Act Case [at 422-423, 452-453].

In this context, 'intention' does not refer to any particular state of mind of the legislators, who may not have adverted to the rights and interests of the indigenous inhabitants: Mabo [No 2] at 68. Moreover, statute law may be the result of a compromise between contending factions and interest groups and of accommodations between and within political organisations which are not made public and cannot readily be made apparent to a court. To speak here of 'intention' will seldom assist and may impede the understanding of the effect of the legislation in question, unless it be kept in mind that what is involved is the 'intention' manifested by the legislation. As Holmes put it, '[w]e do not inquire what the legislature meant; we ask only what the statute means'".

705 And at 247 Kirby J said:

"There is a strong presumption that a statute is not intended to extinguish native title. The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication. General provisions of an Act are not construed as extinguishing native title if they are susceptible to some other construction. Whether by necessary implication a statute extinguishes native title depends upon the language, character and purpose which the statute was designed to achieve. This is a species of a general proposition applied by courts in the construction of legislation. It is applied out of deference to the presumption that Parliament would not normally take away the rights of individuals or groups, without clearly stating such a purpose."

706 The State contended that where it is alleged that extinguishment has occurred as the result of creation of inconsistent rights by a law or an executive act it is not necessary to show that the legislature or executive had a clear and plain intention to extinguish native title, but rather extinguishment flowed solely from the creation of the inconsistent rights. Only where extinguishment flowed directly or implicitly from the law was it necessary to demonstrate a clear and plain intention to extinguish native title. The State relied upon the following passage from the dissenting judgment of Brennan CJ in Wik at 84-85:

"Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect 'unless there be a clear and plain intention to do so'. Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title (339). In reference to grants of interests in land by the Governor in Council, I said in Mabo [No 2] [at 68]:

'A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title.'"

707 In my view, Brennan CJ did not depart from the opinion he expressed in Mabo [No 2] referred to in para 697 of these reasons. He was concerned in the above passage to emphasise that the court does not investigate the actual intention of the legislature in order to ascertain whether extinguishment results from the law or act. Whether that result follows depends on the interpretation of the legislation or the characterisation of the features of the rights or interests created by executive act conveyed by the law or the executive action. This is the purpose of the juxtaposition in the passage which his Honour extracted from his judgment in Mabo [No 2] of the reference to the "actual" intention of the Governor-in-Council and reference to the "effect" of the grant on the enjoyment of native title. In the case of the grant of inconsistent rights or interests the extinguishing effect is derived from the effect of the rights or interests on native title. His Honour was concerned to demonstrate how the necessary intention is to be identified. His point was that the requisite intention is not identified by searching for the actual intention of the legislature or executive, but rather from the terms of the legislation or the effect of the legislation or executive act.

708 That this is what his Honour meant is clear from his reference to his judgment in Mabo [No 2] at 68, where he refers to the need for a clear and plain intention to extinguish native title in the case of Crown grants in trust or reserves. Similarly, his reference to page 422 in the Native Title Act Case (see footnote 339) is to a passage which makes the point that the reference to intention is not to the actual state of mind of the Crown.

709 In Fejo the joint judgment of all members of the High Court stated at 737:

"As Brennan J pointed out in Mabo [No 2], the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title."

The State argued that this endorsed the view of Brennan CJ that there was no requirement to establish a clear and plain intention to extinguish native title in the case of the grant of inconsistent rights. As I have explained, Brennan CJ did not express such a view and hence this passage is not an endorsement of it. If it were an endorsement of that view it would mean that Gaudron, Gummow and Kirby JJ had changed the views they had expressed in Wik without reference to the fact.

710 In summary, the expression of a clear and plain intention to extinguish native title is necessary in all cases in order for extinguishment of native title to result. This requirement recognises the serious consequences akin to expropriation which flow to the aboriginal people from extinguishment of their native title. For the same reason extinguishment does not follow from the creation of rights and interests inconsistent with native title unless and to the extent that extinguishment is necessary to allow the full and unrestricted enjoyment of the inconsistent rights and interests.

The Development of Inconsistency as the Criterion for Extinguishment of Native Title

711 Earlier in these reasons it has been suggested that the creation by the Crown of rights inconsistent with native title will extinguish native title where there is an inconsistency between the rights created and native title which is absolute, total, complete or fundamental. The requirement of absolute inconsistency derives from a logical imperative, from a consideration of the purpose of the concept of extinguishment in native title, from the application of the legal principle that the rights of the aboriginal community existing at the time of acquisition of sovereignty are to be accorded full respect and from the application of the legal principle requiring the expression of a clear and plain intention to extinguish native title.

712 It is now necessary to trace the development of the doctrine which defines the basis upon which extinguishment occurs by reference to what the High Court has said in Mabo [No 2], Wik, Fejo and Yanner.

713 In Mabo [No 2] the issue which was determined by the Court was whether the native title of the Meriam people was recognised by the common law. Although there was argument about whether the lease of the sardine factory and another lease to the London Missionary Society extinguished native title, the declaration made by the Court did not determine these issues. The major focus of the case was on the question whether native title was recognised in Australia at all. That was a momentous and complex issue. What was said by the Court on the question of extinguishment must be seen in the context that the issue of extinguishment was subsidiary to the main issue. That case was the occasion for the Court to consider whether native title existed, rather than whether it had been extinguished. The limited discussion concerning extinguishment was against the backdrop of the birth of a new area of law in Australia. The discussion, then, was an early step in the development of an emerging doctrine. Toohey J in Wik at 125 commented on the state of the law at the time of Mabo [No 2] as follows:

"The recital in the preamble to the Native Title Act that

'The High Court has:

...

(c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates'

reads too much into the judgments in Mabo [No 2] so far as the reference to leasehold estates is concerned unless particular attention is given to what is meant by that term. At their highest, the references are obiter. It has been generally accepted that a grant of an estate in fee simple extinguishes native title rights since this is the largest estate known to the common law.

It is fair to comment that while there are passages in the judgments of the Court dealing with the circumstances in which native title may be extinguished, no great attention has been focused on the idea itself. Hitherto it has not been necessary to do so."

714 And in Fejo Kirby J said at 153:

"The concept of the extinguishment of the rights in land of indigenous peoples as a result of the advancing claims to legal title of the settlers appears to have originated in the decision of the Supreme Court of the United States in Johnson v McIntosh. The notion found its way into the reasons of members of this court in native title cases, but without much elaboration."

715 The analysis in this section shows that the High Court initially identified inconsistency as the criterion by which extinguishment of native title would occur. The Court did not give much attention to the degree of inconsistency which was required. As the doctrine develops there has been a need to refine the notion by identifying the degree of inconsistency necessary to extinguish native title. There has been some discussion of this topic in the consideration of actions which might lead to suspension of the enjoyment of rights and interests dependent upon holding native title. This discussion is the subject of the following section.

716 With these preliminary observations in mind I turn to consider what was said in Mabo [No 2] concerning inconsistency which will result in extinguishment of native title.

717 Brennan J said at 68:

"A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title. If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium. Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable."

718 Deane and Gaudron JJ said at 110:

"The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown, such as appropriation, dedication or reservation for an inconsistent public purpose or use, in circumstances giving rise to third party rights or assumed acquiescence."

719 Toohey J said at 196:

"It follows [from the need for the expression of a clear and plain intention to extinguish] that traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land. That is not to say that the legislature must identify with specificity particular interests to be extinguished if the legislative intention is otherwise clear. Even if a law deals specifically with land the subject of traditional title, it may take the form of a reservation or grant to trustees for the benefit of indigenous people and so be consistent with the continuance of title. These are all questions, the answers to which depend upon the terms of the legislation and any relevant circumstances." [Text added]

720 In these passages inconsistency of native title with other rights created was identified as the basis for extinguishment of native title. Further, it is recognised in the passage quoted from the judgment of Brennan J that in certain cases the relevant inconsistency will only be revealed upon particular use of the land reserved for a purpose otherwise consistent with native title. Deane and Gaudron JJ gave the specific examples of unqualified grants of inconsistent estates, namely, a grant in fee simple or a lease conferring the right of exclusive possession. While it is said that the creation of certain rights and interests is relevantly inconsistent and the creation of others, such as reserves, is not, there is no identification of the necessary degree of inconsistency required, or whether consequences short of extinguishment may follow where the degree of inconsistency is limited.

721 The former issue was raised by Toohey J in Wik at 126:

"While the appellants accepted, as they were bound to do in light of Mabo [No 2] and the Native Title Act Case, that native title may be extinguished, there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished."

722 He adopted the approach that extinguishment followed if the countervailing interests could not possibly coexist, and said at 126:

"What emerges from the judgments in Delgamuukw [v British Columbia (1993) 104 DLR (4^th) 470] is the emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished. If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned."

723 Whilst his Honour did not identify plainly the process as a search for the degree of inconsistency necessary, the conclusion that the required inconsistency does not arise where the inconsistent interest is "limited" does indicate a quantitative concept.

724 Thus, in relation to the pastoral leases under consideration in Wik he said at 130:

"Undue emphasis on the term extinguishment tends to obscure what is at the heart of this issue. It is too simplistic to regard the grant by the Crown of a limited interest in land as necessarily extinguishing native title rights. It is a large step indeed to conclude that, because there has been a grant of a 'lease' of many square miles for pastoral purposes, all rights and interests of indigenous people in regard to the land were intended thereby to be brought to an end. Where is the necessary implication of a clear and plain intention?"

725 Gaudron J in Wik examined the provisions of the two pastoral leases, concluded that they did not confer exclusive possession and held that, as a consequence, the pastoral leases did not necessarily extinguish native title. Her judgment proceeded on the basis that the grant of exclusive possession would necessarily extinguish native title but otherwise the judgment did not deal with the concept of extinguishment.

726 Like Toohey J, Gummow J referred to the impossibility of coexistence approach. At 185-6 he said:

"It was in this period that Fry J determined Yarmouth Corporation v Simmons (1878) 10 Ch D 518. The case concerned a pier, constructed under statutory authority, which obstructed what was said to have been a previously existing public right of way. Fry J rejected the submission that a public right of way could only have been abrogated by express words in the legislation. His Lordship put the matter as follows [at 527]:

'I think that, when the Legislature clearly and distinctly authorise the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right.'

The expression 'clearly and distinctly' emphasises the burden borne by a party seeking to establish the extinguishment of subsisting rights not by express legislative provision but by necessary implication from the provisions of a statute. The phrase 'physically inconsistent' does not suggest the question of inconsistency between rights is answered by regard, as a matter of fact in a particular case, to activities which are or might be conducted on the land. 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. If it cannot, then by necessary implication, the statute extinguishes the existing right.

This notion of inconsistency includes the effect of a statutory prohibition of the activity in question. It supplies the means for resolution of the issues which arise on these appeals. The decision of Fry J was applied in this Court by McTiernan J in Aisbett v City of Camberwell [1933] HCA 36; (1933) 50 CLR 154 at 178-179 and earlier by Isaacs J in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 16 and O'Connor J in Chief Commissioner for Railways and Tramways (NSW) v Attorney-General for New South Wales [1909] HCA 75; (1909) 9 CLR 547. O'Connor J said [at 560]:

'[E]xpress words are not necessary for the statutory extinction of a public right of way. That is illustrated by Mr Justice Fry's judgment in Yarmouth Corporation v Simmons, where a public right of way was held to be extinguished by necessary implication from the provisions of a Statute. The continued use of the land as a public road would render the exercise of the powers expressly conferred on the Constructing Authority impossible. It follows, therefore, that by necessary implication the rights of public way must be taken to have been extinguished by the resumption.'

The authorisation by the 1910 Act and the 1962 Act of activities amounting to physical inconsistency (in the sense indicated above) with the continued exercise of what now are accepted as existing rights of native title would manifest, as a matter of necessary implication, the legislative intention to impair or extinguish those rights."

727 Kirby J took the same approach to inconsistency at 242-243:

"Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute. Neither of the Acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for 'grazing purposes only', as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished."

728 And also at 249 he said:

"The problem of interference with proprietary rights over land (frequently rights of way) by or under railway construction legislation was a question commonly before the courts in the 19th and early 20th centuries. Where Parliament had not expressly abolished proprietary rights, the court typically asked itself whether '[t]he continued use of the land ... would render the exercise of the powers expressly conferred on the Constructing Authority impossible'. If such a question is posed in relation to native title rights and the rights conferred on lessees of pastoral leases under the successive Land Acts of Queensland, the answer must be in the negative. The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilise the land in accordance with their native title, as they did. In that sense, the nature of the interests conferred by a pastoral lease granted under the successive Land Acts, was not, of its legal character, inconsistent with native title rights."

729 Gaudron, Gummow and Kirby JJ joined with Toohey J in the concluding remarks contained in the postscript. As to extinguishment the postscript stated at 133:

"So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees."

730 Brennan CJ said at 126:

"In considering whether native title has been extinguished in or over a particular parcel of land, it is necessary to identify the particular law or act which is said to effect the extinguishment and to apply the appropriate test to ascertain the effect of that law or act and whether that effect is inconsistent with the continued right to enjoy native title.

...

Given that the pastoral lessee acquired a right to exclusive possession at latest when the lease was issued, there was an inconsistency between that right and the right of any other person to enter or to remain on the land demised without the lessee's consent. Assuming that access to the land is an essential aspect of the native title asserted, inconsistency arises precisely because the rights of the lessee and the rights of the holders of native title cannot be fully exercised at the same time."

731 In Fejo the High Court held that a grant in fee simple by the Crown extinguished native title. The majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) said at 126:

"... 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 or 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 over, upon, and in respect to, the land, every act of ownership which can enter into the imagination'. 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, by the owner of the fee simple or by a predecessor in title."

732 The inconsistency in Fejo was complete and permanent. The majority said at 127:

"A grant in fee simple does not have only some temporary effect on native title rights or some effect that is conditioned upon the land not coming to be held by the Crown in the future."

See also Kirby J at 151.

733 The reasoning and the conclusion in Fejo is an example of the approach outlined earlier in these reasons whereby extinguishment occurs where the inconsistency between rights or interests created by the Crown and native title is permanent and absolute.

734 An important reference which recognises that the degree of inconsistency is significant in relation to extinguishment is in the judgment of Gummow J in Yanner where he said at 288-289:

"The continued subsistence of native title will turn upon the extent of the inconsistency in question. In the case of a grant of a fee simple or of a leasehold interest, as known to the common law ... the comprehensiveness of the grant precludes any question of partial extinguishment.

...

The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all."

735 Callinan J also posed the relevant question in terms of the degree of inconsistency. He said at 298:

"The question then becomes, is property in, that is ownership by the Crown of the crocodiles which were taken by Mr Yanner so inconsistent with any native title right to it as to extinguish that right?"

736 In passing I note that in a number of judgments there is an implicit recognition that there will be circumstances of inconsistency which lead to something less than extinguishment. For instance in Wik both Gaudron J at 167 and Gummow J at 168 use the composite expression of extinguishment or impairment of native title. Impairment seems to be a reference to an effect less than extinguishment. And in Mabo [No 2] Deane and Gaudron JJ said in relation to the sardine factory lease at 117:

"This lease recognized and protected usufructuary rights of the Murray Islanders and was subsequently forfeited. It would seem likely that, if it was valid, it neither extinguished nor had any continuing adverse effect upon any rights of Murray Islanders under common law native title. It is, however, appropriate to leave the question of the validity and possible effect of that lease until another day."

737 Of course the view expressed is tentative, but it contains the implicit suggestion that adverse effects of native title did not extinguish because they were not permanent. It would be wrong to elevate these references too high. They do however, reflect an inherent inappropriateness in the notion that mere inconsistency or minor inconsistency or short term inconsistency should lead to extinguishment of native title.

738 Thus, in Fejo the High Court considered the case of a grant of a fee simple estate where extinguishment of native title followed because the inconsistency between the rights and interests granted and native title was complete. In Yanner it was held that regulation of some incidents dependent on native title did not extinguish native title. Apart from these two cases the High Court has not ruled on specific cases of inconsistency. It has not dealt with any other case involving the creation of rights or interests which, while inconsistent with the exercise of some incidents dependent on native title, are less than completely inconsistent with native title. No doctrine has yet been developed to deal with the shades of inconsistency short of absolute inconsistency. However, there is some support for the approach that only rights or interests which are totally inconsistent with native title bring about extinguishment and lesser inconsistency results in suspension of native title rights. This support can be seen in the discussion in several judgments about the concept of suspension of native title, and further from the way in which the issue of the regulation of rights and interests dependent upon the existence of native title have been dealt with. It is to those matters which I now turn.

Suspension of Native Title Rights and Interests

739 In Wik Toohey, Gummow and Kirby JJ held that extinguishment of native title occurred if the rights granted to the pastoral lessees were inconsistent with native title. They each explained that inconsistency arose where the rights were impossible of coexistence. Where both rights could be enjoyed concurrently there was no inconsistency and hence no extinguishment. The trial judge had not made any findings as to the rights and interests dependent upon native title. Hence, the majority was not able to determine whether the rights dependent upon native title and the rights granted under the pastoral leases were inconsistent. They therefore answered the question posed in the case by saying that native title was not necessarily extinguished by the grant of the pastoral leases.

740 The native title claimants argued that, if the pastoral leases prevailed over native title, nonetheless, native title subsisted at common law after the terms of the pastoral leases expired. The rights and interests dependent upon the existence of native title were suspended in the meantime. In response to this argument Toohey J said at 131:

"Because I have concluded that none of the grants necessarily extinguished 'all incidents of Aboriginal title', no further question arises in these appeals as to any concept of the suspension of native title rights during the currency of the grants. I express no view on that matter."

741 Gummow J said at 204:

"My conclusion is that none of these grants necessarily extinguished all incidents of native title which then were subsisting. Accordingly, on these appeals no further question remains as to the existence of any doctrine as to suspension of native title and the revival thereof upon expiration of these grants. I say nothing upon that subject."

742 Kirby J said at 251:

"The appeal on this question must be upheld. The answers given by Drummond J in the Federal Court to the questions separated for determination must be amended accordingly. For the reasons explained above, no declaration or other relief in this Court is sought or is appropriate. With the answers to the questions given by the Court in those matters still in issue, the proceedings should be returned to the Federal Court for trial. At such trial, evidence will be required to give content to the survival and requirements of the native title alleged by the Wik and the Thayorre which, for the purpose of these proceedings, it has been assumed that they can prove."

743 Gaudron J held that native title would be extinguished by the grant of exclusive possession, but that the pastoral leases did not confer exclusive possession. She did not directly consider the suspension argument.

744 The postscript to the judgment of Toohey J, in which postscript Gaudron, Gummow and Kirby JJ agreed, read at 133:

"Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants."

745 Obviously one cannot make too much of these comments as support for the concept of suspension of native title. But it can be said that the judges did not reject the concept as untenable.

746 Some further light is thrown on the question by examining the way in which Toohey, Gummow and Kirby JJ dealt with certain aspects of the minority judgment.

747 Brennan CJ (with whom Dawson and McHugh JJ agreed) held that the pastoral leases conferred rights of exclusive possession on the lessees, that the right to exclusive possession was inconsistent with the native title right of access to the land, and, consequently, native title was extinguished. He then considered the argument that native title was merely suspended during the terms of the pastoral leases. He said at 88-89:

"In Mabo [No 2] I expressed the view:

'If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium.'

If this be the correct view, there is no occasion for the revival of native title. The Crown's title to the land on reversion would be inconsistent with a continued right to enjoy native title.

...

The Wik and Thayorre submissions treat the grant of a pastoral lease as no more than an exercise of a statutory power conferring statutory rights, having no significance for the Crown's beneficial interest in the land demised. So viewed, the way is open to contend that native title is merely suspended during the currency of a lease and, when the lease is determined, the Crown has no reversionary interest but only its original radical title burdened by the native title."

748 And at 91-93 he said:

"By exercise of a statutory power to alienate an estate in land, the Crown creates, subject to statute, a tenure between the Crown and the alienee. It follows that, subject to statute - and all powers of alienation of interests in land in Australia are governed by statute - where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land and the lessee is in possession, a legal reversionary interest must be vested in the Crown. Such an interest is the necessary foundation for the existence of a right to forfeit for breach of condition.

An exercise of the statutory power of alienation of an estate in land brings the land within the regime governed by the doctrines of tenure and estates. Once land is brought within that regime, it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out from either an estate or the Crown's reversionary title. Native title is not a tenure; it is not an interest held of the Crown, mediately or immediately. It is derived solely from the traditional laws and customs of the indigenous peoples.

...

It is only by treating the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary interest that the fundamental doctrines of tenure and estates can operate. On those doctrines the land law of this country is largely constructed. It is too late now to develop a new theory of land law that would throw the whole structure of land titles based on Crown grants into confusion."

749 His Honour at 94-95 then dealt with the second basis upon which temporary suspension of native title had been argued:

"The second limb of the Wik and Thayorre attack on the notion of the Crown's title on reversion limits that title to a nominal period after the determination of the lease.

...

The hypothesis of the submission must be that native title subsists notwithstanding the demise of the land for the term of the pastoral lease and that the Crown acquires no more than a nominal proprietary interest sufficient to support the lease. Upon the determination of the lease, native title revives - assuming there are persons who satisfy the qualifications of native title holders - and burdens the Crown's radical title in the same way as native title burdened that title prior to alienation. Logically, this hypothesis would attribute to the Crown no more than a radical title (that is essentially a power of alienation controlled by statute) whenever there might be a gap in or cesser of the proprietary interest of an alienee. It would treat that proprietary interest as a bundle of statutory rights to which the doctrines of tenure and estates had no necessary application. No land would escheat to the Crown, at least while there were any surviving holders of native title. That cannot be accepted. Even if the grant of a lease were seen merely as an exercise of sovereign power and not as an alienation of property, the land would go back to the Crown on the determination of the lease, if not as a matter of title then as a matter of seigniory.

Nevertheless, the hypothesis seems to be internally consistent. But it fails to attribute to the doctrines of tenure and estates their function of maintaining the skeleton of the law of real property unless native title is treated as the equivalent of an estate in remainder, falling into possession on the determination of a prior estate. Of course, native title is not an estate and to treat native title as falling into possession on the determination of a prior estate is to create problems of title not easy to resolve."

750 Thus, the conclusion that the Crown did acquire the reversion was one reason which led the minority to reject the argument that native title rights and interests had been suspended for the term of the pastoral leases. Although the majority did not need to consider the question of suspension Toohey, Gummow and Kirby JJ did discuss whether the Crown acquired a reversion at the expiration of the grant of a pastoral lease.

751 Toohey J said at 128:

"That the radical title lies with the Crown immediately before the grant of a pastoral lease is clear. But how relevant is it to speak of the Crown acquiring the 'reversion' in such a case and of the Crown's title becoming a plenum dominium? It has been said: 'A reversion is the interest which remains in a grantor who creates out of his own estate a lesser estate'.

...

The doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the 'title' of the Crown itself. The discussion of reversion in the standard texts invariably focuses on the holder of an estate in fee simple who grants some lesser estate, usually a life estate or lease. But that is not the case here.

...

To speak, in relation to the Crown, of a reversion expectant on the expiry of the term of a lease as expanding the Crown's radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. To say this in no way detracts from the doctrine of sovereignty; the Crown may thereafter deal with the land as is authorised by statute, disposing of it in some way or appropriating it to its own use. Indeed it may deal with the land during the term to the extent that it is authorised by statute or by the terms of the grant to do so. In the present case, once a pastoral lease came to an end, the land answered the description of 'Crown land' and might be dealt with accordingly. The invocation of reversion and plenum dominium, as those expressions are usually understood, does not lie easily with the position of the Crown under the relevant statutes.

The proposition that it is the radical title of the Crown with which we are concerned and that, on the expiration or other termination of a pastoral lease, it is still the radical title that must be considered in relation to native title rights, does not minimise the sovereignty of the Crown. Nor does it undermine the principle that native title rights depend on their recognition by the common law. That recognition carries with it the power to extinguish those rights. But it requires a very clear act to do so. To contend that there is a beneficial reversionary interest in the Crown which ensures that there is no room for the recognition of native title rights, is in my view, to read too much into the Crown's title. Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease? There is a curious paradox involved in the proposition."

752 In the context of the arguments in Wik to which his Honour's remarks were addressed, some of these statements support the conclusion that there is room for recognition of native title at the expiration of the term of a common law lease. At least, the acquisition of any interest by the Crown at the expiration of the term of the lease does not stand in the way of the recognition of native title at that point.

753 Gummow J dealt with the question of the Crown's radical title as follows at 187:

"Queensland submits that the grant by the Crown of a lease necessarily involves the acquisition by the Crown of the reversion which is expectant upon the expiry of the term. Accordingly, in granting the lease, the Crown exercises sovereign power in such a fashion as to assert absolute and beneficial ownership out of which the lease is carved. That absolute and beneficial ownership is, as a matter of law, inconsistent with the continued right to enjoy native title in respect of the same land.

It is necessary for the State to make good these propositions by their adaptation to the statutory systems for the disposition of Crown lands established by the 1910 Act and the 1962 Act. It is here, in my view, that the case for the State breaks down."

754 At 189 he said:

"Section 6(1) of the 1910 Act conferred upon the Governor in Council power to grant in fee simple or as a demise for a term of years any land in Queensland, save that land for the time being in fee simple, reserved for or dedicated to public purposes or subject to lease or licence lawfully granted by the Crown. The statute maintained a legal regime where, in respect of what it identified as leases, there was no need for the creation in the Crown of a reversionary estate out of which lesser estates might then be granted. Rather, land which for the time being had been subject to any such 'lease' lawfully granted under s 6, was, upon ceasing to be so and, by reason of it now answering the definition of 'Crown Land' in s 4, liable further to be dealt with by the Crown under s 6."

755 And at 190 he said:

"The 1962 Act contains similar provisions to ss 4, 6 and 135 of the 1910 Act.

Accordingly, I would reject the submission for the State that the scheme of the 1910 Act and the 1962 Act is such that, with respect to the grant of limited interests thereunder by the Crown, the necessary consequence is the acquisition by the Crown of a reversion expectant on the cesser of that interest, thereby generating for the Crown that full and beneficial ownership which is necessarily inconsistent with subsisting native title. Whatever be the interests or other rights created under s 6 of the 1910 Act and the 1962 Act, they 'owe their origin and existence to the provisions of the statute'".

756 His Honour also rejected the notion that the rights acquired by the Crown at the expiration of the term of a pastoral lease were inconsistent with the existence of native title. However, the reasoning is limited to the operation of the particular statutes under which the pastoral leases were granted. Indeed, it is clear from his Honour's judgment in Yanner that he regarded the grant of a common law lease as effecting the extinguishment of native title (except perhaps where the lease is made in favour of aboriginal people).

757 Kirby J said at 224-225 in relation to the critical passage in the judgment of Brennan J in Mabo [No 2]:

"The passage relating to the expansion of the Crown's radical title into a plenum dominium, such that there is inherent in any leasehold the creation of a reversion expectant, comes closest to the ['inconsistency of incidents test']. Yet, by the application of that doctrine, the expansion of the Crown's radical title for the purpose of granting the two leases in question would ipso facto have extinguished native title in the lands affected by the leases simply because that was an incident of the legal character of a common law lease.

The reasons of Mason CJ and McHugh J in Mabo [No 2] included a qualification that the formal order of the Court should be 'cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration ...'. The actual declaratory order made by the Court therefore excluded the lands the subject of the two leases. That order defines what it is that this Court held. Clearly, therefore, in the reasoning of individual Justices, the effect of the grant of leasehold interests upon native title rights is not authoritatively decided.

...

Returning, then, to the passage in the reasons of Brennan J, extracted above, in so far as it concerns the effect of a lease on native title, it is not part of the binding rule established by Mabo [No 2]."

758 This passage suggests a rejection of the argument that the acquisition by the Crown of a reversionary interest in a leasehold is inconsistent with the continuance of native title.

The Mineralogy Case

759 That the grant of inconsistent rights or interests which are temporary has the effect of suspending rather than extinguishing native title was accepted in Mineralogy Pty Ltd v National Native Title Tribunal & Ors (1997) 157 ALR 467. Carr J determined that an exploration licence granted under s 57 of the Mining Act 1978 (WA) did not extinguish native title and that native title rights resumed operative effect upon the expiration of the exploration licence. His Honour set out the rights of the holder of an exploration licence at 481 as follows:

"* to enter and re-enter the land with such agents, employees, vehicles, machinery and equipment as are necessary for the purpose of exploring for minerals in, on or under the land;

* to carry on such operations and carry out such works as are necessary including digging pits, trenches and holes, and sinking bores and tunnels;

* to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances in such amount as does not exceed 1000 tonnes, or in such greater amount as the minister may, in any case, approve in writing; and

* subject to the  Rights in Water and Irrigation Act 1914  (WA), to take and divert water from any natural spring, lake, pool or stream, and to sink a well or bore and take water therefrom and to use the water so taken for the explorer's domestic purposes and for any purpose in connection with exploring for minerals."

760 Then at 484 he reasoned as follows:

"I turn first to the question whether the original grant of the exploration licence extinguished any native title over the land in question. It seems reasonably clear that inconsistency requires a comparison between the legal rights conferred, in this case by the exploration licence, with whatever native title rights may have existed over the same land: see eg Gummow J in Wik at CLR 185. An exploration licence grants certain carefully limited rights for a relatively short period. As mentioned above, the applicant's exploration licence had an initial term of five years. That is a standard initial term: see s 61(1) of the Mining Act. Thereafter the term was extended on an annual basis. The applicant was authorised by that licence to exercise certain specified rights indiscriminately over land within two pastoral leases, a special lease, freehold land, reserved land and vacant Crown land. I have referred earlier in these reasons to the numerous conditions endorsed on the applicant's exploration licence, nearly all of which place restrictions on the exercise of what would otherwise be its rights. Furthermore, the Mining Act imposes surrender conditions. Half the 'blocks' within it must be surrendered at the expiration of the third year of its term and half of the remaining 'blocks' must be surrendered 12 months later - subject to the minister's discretion to grant exemption from such requirements: see s 65 of the Mining Act. When the licence expires, so do all the rights previously exercisable under it. To the extent that the exercise of those rights might have been inconsistent with the enjoyment of rights enjoyed by those holding freehold interests or pastoral leases or reserves, that inconsistency disappears on such expiry of the exploration licence. There is no basis upon which to infer that the effect on any native title should be any more permanent."

761 It should be noted that the initial term of the expiration licence was five years. Although Carr J refers to this as a relatively short period, he nonetheless held that the rights created were inconsistent with native title rights. It cannot therefore be suggested that the period of the licence was so short as to deny any practical inconsistency. Such an argument may be available where the interference is for days or possibly weeks, but not months or years. Despite the inconsistency, native title was not extinguished.

762 The same concept of suspension was adverted to by Brennan CJ in Wik in relation to the grant of petroleum leases over land held under pastoral leases. He said at 75:

"Assuming the power to grant a petroleum lease under that Act extended to the grant of a petroleum lease over 'private land' (which included pastoral leaseholds), it may be that the petroleum lease conferred a right to exclusive possession on the petroleum lessee that suspended the right to exclusive possession otherwise exercisable by a pastoral lessee."

763 It is not readily apparent why the creation of inconsistent rights by the grant of a petroleum lease in respect of land held under a pastoral lease should have the effect of suspending a right to exclusive possession of a pastoral lessee, but the grant of an exclusive possession lease should extinguish native title. In both cases the inconsistency derives from the conflicting rights to exclusive possession. In the same way that the petroleum lease does not extinguish the rights of the pastoral lessee, but rather suspends such rights, the grant of an exclusive possession lease does not need to extinguish native title, but may cause a suspension of the right to enjoy the incidents dependent upon the existence of native title.

764 Similarly, town planning legislation may prohibit or regulate the right of a freehold owner of land to use and enjoy the land in specific ways, but the legislation does not have the effect of extinguishing the freehold title. If the town planning restriction is removed, the owner of the land resumes enjoyment of the land free of the restriction. For the period of the restriction the rights affected are suspended but the freehold title remains in existence although impaired.

765 Yet another example of the temporary displacement of rights dependent on an underlying title which does not destroy the underlying title can be found in the statutes giving control to the Crown or a statutory authority over waterways. For instance, in Western Australia that statute is the Rights in Water & Irrigation Act 1914 (WA). In Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317 Fullagar J (with whom Kitto J agreed) said of similar legislation at 331:

"...the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody's rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way."

766 As a result the rights granted to the Crown by the statute did not prevent the plaintiff land holder from exercising the right as owner to sue in nuisance for damage done by the construction by the defendant of certain earth works on and near a river which flowed through the lands of both parties. The statutory grant of rights inconsistent with the rights of the holder of the freehold did not extinguish the freehold title. But it did prevent the exercise of certain rights of control over the waterways while the Act was in place.

Regulation of Native Title Rights and Interests

767 Statutes which impact upon the enjoyment of the rights or interests dependent on native title by way of regulation of those rights or interests do not display a clear and plain intention to extinguish native title: Mabo [No 2] per Brennan J at 64. Cases dealing with the effect of regulatory schemes on native title throw some light on the effect of the creation of rights or interests which are inconsistent with the enjoyment of rights or interests dependent on native title.

768 In Yanner the evidence established that the appellant's clan held native title to certain land in Queensland as a result of which the appellant had a right according to traditional aboriginal law to hunt juvenile estuarine crocodiles for food. The Court had to determine whether s 7(1) of the Fauna Conservation Act 1974 (Qld) (the Fauna Act) extinguished that right. The section provided:

"All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority."

769 Crocodiles were protected fauna under the Act which meant that, subject to a declaration of an open season, they could be taken or kept only in certain limited circumstances, namely, if they were orphaned, injured, sick or emaciated, or if they were causing or likely to cause damage or injury. They could also be killed if they had caused or were causing or likely to cause injury to a person. An open season could be declared in respect of protected fauna and then permits could be issued permitting the taking of that fauna. Also, the Director of National Parks and Wildlife was empowered to issue permits to fauna dealers to allow them to buy, keep, sell or otherwise dispose of protected fauna during a closed season. The majority (Gleeson CJ, Gaudron, Kirby and Hayne JJ) said at 267-268:

"The 'property' which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken, rights to possession of fauna that had been reduced to possession, and rights to receive royalty in respect of fauna that was taken (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act."

770 The respondent's case was that the Fauna Act created rights of full beneficial or absolute ownership in fauna and, as those rights were inconsistent with the continued holding of native title rights, the appellant's right to hunt crocodiles was extinguished. In relation to this argument the majority said at 269:

"It is unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern."

771 The reference to prohibition seems intended as a reference to a permanent and complete prohibition because the statutory licensing scheme potentially gave rise to the possibility, and was likely designed to allow, at least temporary restrictions on the hunting of estuarine crocodile. The majority, in the extract which is set out below, even goes so far as to suggest that a complete prohibition may not extinguish native title.

772 Regulation, including severe restriction of the exercise of the rights or interests dependent on native title, short of complete abolition does not extinguish native title because the degree of interference with the enjoyment of the rights or interests dependent on native title is not sufficient either in scope or duration to demonstrate that the Crown intended to destroy native title forever. The majority explained the situation at 269-270 as follows:

"... But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, 'Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights' but '[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it'.

Native title rights and interests must be understood as what has been called 'a perception of socially constituted fact' as well as 'comprising various assortments of artificially defined jural right'. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, 'You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing."

773 The reference to the "continued exercise" of native title rights and interests is a reference to the continuance subject to regulatory requirements. If a permit is not granted for several years to the members of the aboriginal community entitled to hunt under traditional law, the exercise of the right is impaired by being suspended but the exercise of the right is not permanently denied.

774 The effect of regulation was considered by Kirby P in Mason v Tritton (1994) 34 NSWLR 572 at 592-593 where he also referred to the Canadian case of R v Sparrow as follows:

"...the Regulation merely regulates the enjoyment of native title. The Regulation was made pursuant to s 4N of the Fisheries and Oyster Farms Act 1935. That section provides that regulations may be made 'for the management of the fishery' (s 4N(1)(a)). The Regulation in question limited the permissible catch of, among other ocean dwelling creatures, abalone. It prohibited the shucking of abalone adjacent to the waters. In R v Sparrow (1990) 70 DLR (4^th) 385, the Supreme Court of Canada considered a claim similar to that made in the present case. In Sparrow, the accused was charged under s 61(1) of the Fisheries Act 1970 (Can) of a contravention of the regulations made pursuant to that Act. The accused had used a longer than permissible drift-net. Section 34(a) of that Act bestowed on the Governor in Council broad powers to make regulations, including 'for the proper management and control of the seacoast and inland fisheries'. Dickson CJC and La Forest J said (at 400-401): 'At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.' The same distinction would, in my view, be applicable in the present case. The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. In the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated."

775 The reasoning in these cases is directly applicable to determining the consequences of the creation of rights or interests inconsistent with native title. Indeed the majority in Yanner at 269 spoke of the "inconsistency" between the regulatory scheme and the exercise of rights dependent upon native title as the determinant of extinguishment. Inconsistency is also the concept used to determine whether the creation of rights or interests by the Crown extinguishes native title. Thus, where the scope of those rights or interests, including duration of the rights and interests, does not entirely override native title the position is analogous to the enactment of a regulatory scheme which, whilst impairing the enjoyment of certain rights and interests dependent on the existence of native title, does not prevent its continuance. Thus, if under the Fauna Act Mr Yanner were refused a permit to take estuarine crocodiles for five years whilst permits were granted to certain fauna dealers, say, for the purpose of stocking zoos in order to conserve the species, native title would not be extinguished. The rights and interests dependent on the existence of native title would be impaired. The right to hunt estuarine crocodiles would be denied for a time. The right would be suspended until a permit was granted. There is no difference in principle between the continuance of native title under a regulatory regime which prevents the exercise of a right dependent upon native title for a period, and the continuance of native title where, say, there is a traditional right of aboriginal people to take resources from the land and a right to mine is granted to a third party for a limited period. The native title holders are excluded from the enjoyment of the right to take those resources for a limited time and native title is impaired for the duration of the right to mine. But when the right to mine granted to the third party ceases to have effect the native title remains and is no longer impaired. Then the grant of the right to mine is equivalent in effect to a regime of strict regulation which prevents the exercise of a countervailing right for a time.

Exclusive Possession Leases

776 On the analysis set out earlier in these reasons a grant by the Crown of a lease which confers exclusive possession on the lessee does not extinguish native title where the duration of the lease is less than the duration of native title. The exercise of rights and interests dependent on native title is suspended during the term of the lease. Those rights continue once the lease expires.

777 There are some dicta in Mabo [No 2] (Brennan J at 68 and Deane and Gaudron JJ at 110) to the effect that the grant of a leasehold conferring exclusive possession necessarily extinguishes native title. This also appears to be the assumption on which Gaudron J proceeded in Wik. And in Yanner Gummow J at 288 expressed the same view.

778 There are, however, indications of a contrary view. As was noted in the section of these reasons entitled "Suspension of Native Title Rights and Interests" at 740-759, the basis on which Brennan J rejected the contention that native title rights were suspended, namely, the acquisition by the Crown of a reversionary estate, was rejected in Wik by Toohey J and probably by Kirby J. The other dicta which hold that exclusive possession leases necessarily extinguish native title provide no response to the curiosity raised by Toohey J in Wik at 126 "in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land". There seems to be no reason in principle why native title, whilst temporarily displaced by the rights of a lessee during the term of a lease, would not resume upon expiration of the term. As pointed out earlier in these reasons, the existing authorities have not rejected the notion of suspension of native title. The words of Kirby J in Fejo at 148 in reference to the extinguishment by the grant of a freehold title apply equally to the extinguishment by the grant of an exclusive possession lease:

"However, it must be accepted that none of the opinions [favouring extinguishment] cited was legally essential to the decision in the several cases referred to. To that extent, there is no holding on the point which is binding, as a matter of legal precedent. It is therefore necessary to consider the appellants' submission in terms not only of the dicta in recent legal authority but also by reference to legal principle and legal policy. The issue now being squarely presented for decision, this Court must provide the answer which most closely accords with established authority, including the reasoning sustaining its earlier decisions in native title cases. Sometimes when an important point must be decided, obiter dicta, once analysed, are found to be wanting."

Inconsistent Rights For Short Finite Periods

779 In the judgment of Beaumont and von Doussa JJ (at par 85) in these appeals the view is expressed that the grant of certain rights such as the grant of a lease for a short finite period may not be inconsistent with the continuance of native title rights. Their Honours conclude that whether extinguishment occurs will depend on all the circumstances and is likely to involve matters of degree.

780 The problem of principle is that the only difference between a short and a long term lease is the duration of the inconsistency. The nature of the inconsistency is the same, namely, in the case of a lease, the grant of exclusive possession to the lessee. In principle there is no distinction between the grant of a short term interest or a long term interest. The extinguishment consequences must follow in the same way in either case.

781 Further, on the view expressed, whether there is a relevant inconsistency is to be determined by broad indeterminate criteria. The grantee will not be able to tell whether native title is extinguished or not. This will engender uncertainty "in an area of the law's operation where certainty and predictability have conventionally been accorded high importance. Conformably with the legal rights of those involved, the avoidance of unnecessary doubt and confusion is a proper objective of land law." (Kirby J in Wik at 221.) And finally, what is the position of native title rights or interests which are not relevantly inconsistent? If they are not extinguished are they freely exercisable? If not, are they suspended for the duration of the term of the grant?

Partial Extinguishment - Bundle Of Rights

782 In Mabo [No 2] Brennan J said at 58:

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory."

783 The proper characterisation of native title thus depends on aboriginal law and custom. The matter must be viewed from the aboriginal perspective.

784 Whilst the nature and content of native title in a particular case are matters of fact which must be found by the Court, it is possible to provide a general description of native title without reference to fact findings in a particular case. This was done in Mabo [No 2] itself: see Brennan J at 59. Since then the several native title cases which have come before the Courts have extended and refined the general understanding of the nature of native title. The comprehensive and detailed examination of the nature of native title in the present case provides a clear idea of some general features of native title. From this examination Lee J concluded that native title is a right to the land itself. That conclusion reflects the traditional law of the aboriginal people. It reflects the fact of aboriginal law translated into the language of the Australian legal system. What is involved is a characterisation of the relationship between aboriginal people and the land translated into terms which have meaning for Australian law. As a characterisation of the relationship, the notion that native title is a right to the land itself conforms more closely to the traditional aboriginal law than the notion that native title consists of a bundle of rights. That latter notion suggests a number of separate rights which are individual, capable of standing alone and recognised by traditional law as standing alone. The unifying factor which creates the bundle is the feature that all the rights relate to the land. However, the relation to the land arises only by reason of the practical necessity that the exercise of the rights depends on the existence of the land. Thus, a "right" to hunt is meaningless without a place to hunt. But aboriginal traditional law does not treat the "rights" as stand-alone rights. The incidents of native title depend upon the connection of the aboriginal people with the land. The underlying connection is the foundation for the exercise of various rights. The land is not just the place to hunt. Rather the right to hunt follows as a result of the significance of the land as the centrepiece in aboriginal law and culture. It is for this reason that the proper question to ask when seeking to ascertain whether native title has been extinguished is whether the Crown has shown a clear and plain intention to abolish the underlying connection with the land. It is for the same reason that there cannot be partial extinguishment of native title by the restriction or even abolition of some or all of the rights or interests dependent upon the existence of native title.

785 In characterising native title as a right of aboriginal people to the land itself Lee J at ALR 507 cited a passage from the judgment of Lamer CJ of the Supreme Court of Canada in Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193. In Canada the concept of native title is to be distinguished from "aboriginal rights" which are recognised by the Constitution Act 1982 (Can). In the passage cited by his Honour, Lamer CJ addressed the difference between the two concepts. The discussion is enlightening in relation to the distinction sought to be made in the present case between native title as a right to the land and native title as a bundle of rights. Lamer CJ rejected the concept that native title was simply an aggregation of separate rights to conduct activities on the land. Lamer CJ concluded at 252 that "[w]hat aboriginal title confers is the right to the land itself...[t]hose activities are parasitic on the underlying title."

786 The same dependence of usufructuary rights upon an underlying title was accepted by Brennan J in Mabo [No 2] at 51:

"Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown's radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum (1971) 17 FLR 141, at p 272, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title."

787 In Yanner the majority said at 269-270 in a passage extracted earlier in these reasons:

"But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, 'Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights' but '[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.'

Native title rights and interests must be understood as what has been called 'a perception of socially constituted fact' as well as 'comprising various assortments of artificially defined jural right'. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, 'You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing."

788 In my view this passage reflects the concept that native title is a right to land based on an established aboriginal connection to that land. Native title may continue despite the regulation, even amounting to prohibition, of rights or interests which depend on the existence of native title.

789 An understanding of this passage is assisted by some knowledge of the meaning of the expressions "a perception of socially constituted fact" and "various assortments of artificially defined jural right". The expressions are used in a chapter entitled "The Idea of Property in Land" by Kevin Gray and Susan Francis Gray in Susan Bright and John Dewar (eds), Land Law: Themes and Perspectives (1998) 15 at 27. The expressions relate to two different concepts of property in the jurisprudence of property law. The context of the discussion in which they are explained is described at 18 as follows:

"The task of the present chapter is to outline the various ways in which English law - and perhaps, more generally, common law jurisprudence - handles the idea of property in land. It will be argued that our dominant models of property in land fluctuate inconsistently between three rather different perspectives. It will be suggested that this doctrinal uncertainty - this deep structural indeterminacy - explains the intractable nature of some of land law's classic dilemmas, whilst simultaneously impeding constructive responses to the more immediately pressing challenges of twenty-first century land law. The common law world has never really resolved whether property in land is to be understood in terms of empirical facts, artificially defined rights, or duty-laden allocations of social utility. Although these three perspectives sometimes interact and overlap, it remains ultimately unclear whether the substance of property resides in the raw data of human conduct or in essentially positive claims of abstract entitlement or in the socially directed control of land use. In short, the idea of property in land oscillates ambivalently between the behavioural, the conceptual, and the obligational, between competing models of property as a fact, property as a right, and property as a responsibility."

790 The first concept "Property as a Fact" is described at 18-19 as follows:

"Much of the genius of the common law derives from a rough-and-ready grasp of the empirical realities of life. According to this perspective, the identification of property in land is an earthy pragmatic affair. There is a deeply anti-intellectual streak in the common law tradition which cares little for grand or abstract theories of ownership, preferring to fasten instead upon the raw organic facts of human behaviour. This perspective is preoccupied with what happens on the ground rather than with what emerges from the heaven of concepts. Accordingly, the crude empiricism of this outlook leaves the recognition of property to rest upon essentially intuitive perceptions of the degree to which a claimant successfully asserts de facto possessory control over the land. On this view property in land is more about fact than about right; it derives ultimately not from 'words upon parchment' but from the elemental primacy of sustained possession. Property in land is thus measurable with reference to essentially behavioural data; it expresses a visceral insight into the current balance of human power relationships in respect of land. And it is, indeed, the psycho-social nature of this understanding of property which serves to discriminate between many of the hypothetical variants of the property question posed earlier in this chapter.

Concealed within this behavioural notion of property is, inevitably, some primal perception of the propriety of one's nexus with land. To have 'property' in land is not merely to allege some casual physical affinity with a particular piece of land, but rather to stake out some sort of claim to the legitimacy of one's personal space in this land. It is to assert that the land is 'proper' to one; that one has some significant self-constituting, self-realizing, self-identifying connection with the land; that the land is, in some measure, an embodiment of one's personality and autonomy. To claim 'property' in land is to arrogate at least a limited form of sovereignty over the land and to allege that one has some emotion- or investment-backed security in it. To have 'property' in land connotes, ultimately, a deeply instinctive self-affirming sense of belonging and control; and it is precisely this sense of possessory control which identifies the two proprietary estates acknowledged today in English law, the fee simple absolute (or freehold estate) and the term of years absolute (or leasehold estate)."

791 The second concept "Property as a Right" is described at 27 as follows:

"The foregoing analysis of the law of real property has concentrated on property in land as a perception of socially constituted fact. A rather different - and not entirely consistent - focus is provided by the competing assessment of property in land as comprising various assortments of artificially defined jural right. On this view, the law of real property becomes distanced from the physical reality of land and enters a world of conceptual - indeed some would say virtually mathematical - abstraction. In sharp contrast to the crudely empirical foundations of property as a fact, the vision of property as a right rests upon a complex calculus of carefully calibrated 'estates' and 'interests' in land, all underpinned by the political theory implicit in the doctrine of tenure. All property relationships with land are, accordingly, analysed at one remove - through the intermediacy of an estate or interest in land." [Bold emphasis added]

792 The passage from Yanner referred to in para 787 is a discussion about the nature of inconsistency which will lead to extinguishment. It seeks to explain the nature of native title for the purposes of defining those elements against which inconsistency might be found to exist. At the beginning there is reference to the fact that native title has its origin in aboriginal law and custom and reflects connection with the land. The "perception of socially constituted fact" is a reference to the spiritual, cultural and social connection claimed by the aboriginal people to the land. The passage emphasises that this aspect must be understood as the basis of native title. That is to say native title is not comprised only of the "artificially defined jural rights" such as the right to hunt or fish. The primacy of the underlying right to the land is confirmed by the observation that the regulation of the "artificially defined jural rights" does not sever the connection with the land, and as a consequence native title continues to exist even in the face of such regulation.

793 The notion of partial inconsistency seems to have been first referred to by Brennan J in Mabo [No 2] at 69 in a summary of the discussion concerning extinguishment. He said:

"Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals)."

794 Shortly before this summary his Honour explained at 69 that the dispossession of the aboriginal people from their land did not result from the acquisition of ownership of all the land upon first settlement but rather:

"Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement."

795 In the context of the discussion the reference to partial extinguishment probably referred to the extinguishment of native title parcel by parcel, that is to say, extinguishment of one piece of aboriginal land from a larger whole rather than the extinguishment of some rights in the one piece of land. Lee J explained at ALR 509 the reference as follows:

"At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words 'extinguish to the extent of the inconsistency' refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be 'extinguished'."

796 Partial extinguishment in the sense of the destruction of a part of native title in respect of a piece of land is thus not supported by the reference in Mabo [No 2]. Further, such a notion is inconsistent with the view that native title is a right to the land itself. The right to exercise certain rights is parasitic upon the holding of the underlying title, but the abrogation of the right to enjoy some of those incidents does not extinguish native title.

Some Reflections on the Proper Approach to the Development of the Law Concerning Extinguishment

797 This discussion concerning an emerging doctrine of extinguishment has highlighted the fact that the concept has surfaced in Australian native title legal discourse without elaboration. This case is an early opportunity in the development of the law to set the future direction by some refinement of the concept. It is clear enough from the existing authorities that different judicial minds have approached the concept differently. It is useful to consider some underlying factors which influence judicial decision making of this type.

798 The decision of the Supreme Court of the United States in Johnson v McIntosh [1823] USSC 22; (1823) 8 Wheat 543 is regarded as the source of the concept of extinguishment of native title. In about 1775, whilst the colony of Virginia was under British rule, the Piankeshaw Indians occupied territory in accordance with their tribal law. Pursuant to that law the chiefs of the Piankeshaws conveyed to the plaintiffs title to certain lands. In 1776 Virginia attained independence from Britain. In 1778 Virginia transferred title to its lands to the United States Congress. In 1818 the United States government transferred 11,560 acres of land to Thomas Johnson. That land was part of the same land which had been conveyed to the plaintiffs by the Piankeshaws. The plaintiffs sought ejectment against the successors of Thomas Johnson. Thus, there was a contest between Indian title and a title granted by the government of the United States. The Supreme Court held that, although Indian title was recognised, the title conveyed by the government of the United States prevailed. The principle was expressed as follows at 587:

"The United States, then, have unequivocally acceded to that great and broad rule by which its civilised inhabitants now hold over this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise."

799 The rationale for the principle was explained by the Court at 589-591 as follows:

"Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

...

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood and exposing themselves and their families to the perpetual hazard of being massacred.

...

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concommitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilised nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice."

800 The reason for development of the concept of extinguishment therefore was to meet the practical requirements of the existing social environment. Importantly, there was a need to subjugate an aggressive local indigenous population and thereby remove the perceived danger to the occupying population. There was the further need to cement by law the physical occupation of the non-indigenous population. Acceptance of the notion of extinguishment was based principally on considerations of policy, namely, the requirements for the safety and growth of the emerging nation. In the current Australian legal system policy considerations are appropriate for decision making by the executive or for legislative enactment, but not for judicial decision making. It may be that the difficult issues raised by native title are better addressed by detailed policy analysis open to the legislature and the executive. However, judges have no choice in selecting the cases which must be decided. We must decide the cases brought to the Court by the parties.

801 The judicial method in Australian courts involves decision making by reference to legal principle and authority. In an emerging area of the law such as the present the waters are largely unchartered. How then should the Court approach the task of creating the charter?

802 In fashioning the charter relating to the concept of extinguishment it is necessary to bear in mind the origin of the concept. The social setting was quite different to the contemporary Australian social setting. The primary factors which gave birth to the concept do not apply in Australia. Thus there are good reasons for refining the scope of the concept to take account of these differences.

803 The scope of the concept of extinguishment will be determined in large degree by the particular approach taken by judges who mould the concept. In this regard Brennan J said in Mabo [No 2] at 45:

"Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognize such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.

A basic doctrine of the land law is the doctrine of tenure, to which Stephen C.J. referred in Attorney-General (N.S.W.) v. Brown, and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency. It is derived from feudal origins."

804 No doubt this is a proper caution which highlights the need for the Court to pay appropriate regard to the existing legal and social structures in Australia. But there is a need to appreciate the danger of being bound by the "medieval chains" referred to by Laws LJ in Dutton v Manchester Airport [1999] 2 ALL ER 676 at 687. The common law is capable of change in order to meet contemporary situations. The direction of the current growth of native title law is best served by an emphasis on the need to develop modifications to the existing scheme to accommodate the development of necessary doctrine. In the following section I attempt to show that modification and change have characterised the development of property law, and that the notion of suspension of rights and interests is a well accepted part of property law doctrine.

Change as a Feature of the History of Property Law

805 Nowhere has modification and change marked the history of property law more clearly than in relation to the doctrine of tenure. This doctrine was the first way in which the ownership of property was fragmented. It underpinned the feudal system, so that the land law reflected the social demands of the time. Through the process of subinfeudation, a hierarchy was set up in which everyone held land of a superior, with the King at the apex. Each person in the hierarchy owed services to the mesne lord above, and was also owed services by those below. Interests in land were therefore not granted outright to tenants, and it was implicit in the relationship of tenure that both the grantor and the tenant have interests in the land at the same time.

806 In the fifteenth century Littleton classified the various tenures by reference to the nature of service which the grant of land required the tenant to render. Thus, for instance, a tenant holding by knight service was required to fight as a knight or supply knights for battle. A tenant who held by castle-gard was obliged to serve in defence of castles, and a tenant holding by grand sergeanty was required to render service of a personal nature, and so on.

807 A major change in the tenurial system reflected the social changes then occurring. Originally the tenures formed the basis of social organisation and reflected the economic, military and spiritual cooperation between all segments of society. In due course the value of fixed services declined and an economy based on contract and the payment of wages grew up. The obligation to render services was replaced by the obligation to pay "rent".

808 The position today is described by Simpson in A History of the Land Law (2^nd ed, 1986) at 1 as follows:

"Indeed, so unimportant have tenures become that nobody certainly knows what sorts of tenure can still exist, and in practice this matters not at all."

809 As the incidents of land holding changed so did the ability to transfer those interests. In the earliest times the tenant's interest in land was not heritable as of right. In due course the tenant was entitled to pass his interest to his heir without the consent of the grantor. By the time of the statute of Quia Emptores in 1290 it was recognised that the tenant had the right to alienate his interest. Each of these steps constituted a radical change which was accommodated within the system of tenure and which reflected the requirements of contemporary society.

810 By demonstrating that several persons could hold proprietary interests in the one piece of land, the doctrine of tenure laid the groundwork for the division of land in ways other than pursuant to the tenurial relationship. Lawson and Rudden in The Law of Property (2^nd ed, 1982) state at 81, that "tenure, since it denied in principle the unity of ownership, created a mental atmosphere favourable to the division of ownership on other lines also." In particular, with the evolution of the doctrine of estates, property interests came to be fragmented on the basis of time. Whereas the doctrine of tenure recognised that a number of persons could have a proprietary interest in the one piece of land at the same time, by relying upon duration, the doctrine of estates allowed for the creation of successive interests, present and future, in the same piece of land.

811 In essence, the doctrine of estates reflected the idea that a person should be able to have an interest in land giving rise to a present right to possession, while at the same time other persons would also have interests in the same land giving them future rights to possession. Kevin Gray and Susan Francis Gray in "The Idea of Property in Land" (referred to above: par 110) at 28-29 discuss the temporal basis of the doctrine of estates in the following terms:

"It was left to the doctrine of estates to quantify the grades of abstract entitlement which might be enjoyed by any particular tenant (or landholder) within the tenurial framework. This doctrine spelt out a rich taxonomy of 'estates' in the land, each estate representing an artificial proprietary construct interposed between the tenant and the physical object of his tenure. Each tenant owned (and still owns) not land but an estate in land. The precise nature of the estate was graded by its temporal duration and by the possible attachment of variegated conditions precedent or subsequent. Each common law estate - whether the fee simple, the fee tail, or the life estate - comprised a time-related segment of the bundle of rights and powers exercisable over land; and the doctrine of estates effectively provided diverse ways in which three-dimensional realty might be carved up in a fourth dimension of time."

812 In Walsingham's Case [1573] EWHC KB J99; (1573) 2 Plowd 547 at 555[1573] EWHC KB J99; , 75 ER 805 at 816-817 it was said:

"... the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time ..."

813 Lawson and Rudden also discuss how notions of duration could be divided through the doctrine of estates. The authors state at 88:

"In relation to land the solution long ago adopted by English law was to create an abstract entity called the estate in the land and to interpose it between the tenant and the land. Since the estate was an abstract entity imagined to serve certain purposes, it could be made to conform to a specification, and the essential parts of the specification were that the estate should represent the temporal aspect of the land - as it were a fourth dimension - that it should be divisible within that dimension in respect of time according to a coherent set of rules, but that the whole of that dimension, the estate, should be regarded as existing in the present moment so that slices of the estate representing rights to successive holdings of the land should be regarded as present estates co-existing at the same time."

814 The change in the importance of the doctrine of estates is explained by Simpson at 1-2 as follows:

"The doctrine of estates too is still with us, though in a guise which would hardly be intelligible to a medieval lawyer. But although the fundamental nature of these two doctrines [the doctrine of tenure and the doctrine of estates] is avowed in the leading modern textbook on real property, estates no longer have the fascination that once they had, and tenure is little discussed. The emphasis of the modern law passes both doctrines by, and rightly so. If we go back into the history of the land law the emphasis changes. In the eighteenth and early nineteenth centuries the ablest property lawyers are concerned to work out the subtleties of the rules governing the limitation of estates, particularly in connection with the elaborate family settlements of the time; when we reach the fifteenth century Littleton's treatise on the law of real property is traditionally called Tenures, and though he deals at length with the doctrine of estates it is the tenurial quality of the law which bulks largest in his analysis."

815 Thus, it can be seen that while native title is not an estate recognised by the common law, there is nothing inconsistent within the common law in the concept of suspension of property rights. It reflects an idea which lies at the foundation of the doctrine of estates itself. Further, the changes accommodated through history in the elements of the doctrine of estates show the capacity of property law to change as required by contemporary circumstances.

816 It should also be remembered that the original estates in property law were the freehold estates of fee simple, fee tail and life estate. Initially, leaseholds were not classified as estates. Leaseholds created contractual rights only and could be enforced by contractual remedies. Late in the fifteenth century the common law courts permitted leaseholders to recover the land itself in an action for ejectment. Once this remedy became available the common law could no longer deny leaseholders the status of estate holders. The incorporation of leaseholds into the doctrine of estates is yet another example of a change by which circumstances have seen structural alterations in the law of property.

817 Indeed change has continued in this area. Last year the House of Lords decided in Bruton (AP) v London and Quadrant Housing Trust [1999] UKHL 26; [1999] 3 WLR 150 that a leasehold does not always create an estate in land. Mr Bruton occupied a flat under an agreement with the Housing Trust. The flat was in a building owned by the London Borough of Lambeth. The Borough and the Trust entered into an agreement designated a licence, in which it was agreed that the Borough did not grant an estate or other proprietary interest to the Trust. The question to be decided was whether the Trust and Mr Bruton were landlord and tenant for the purposes of the statutory repairing obligations. The House of Lords considered that the relationship was that of landlord and tenant. In response to the argument that there could be no lease between Mr Bruton and the Trust because the Borough did not grant any proprietary interest to the Trust, Lord Hoffman, with whom Lord Slynn of Hadley, Lord Jauncey of Tullichettle, Lord Hope of Craighead and Lord Hobhouse of Woodborough agreed, said at 156-157:

"First, the term `lease' or `tenancy' describes a relationship between two parties who are designated landlord and tenant. It is not concerned with the question of whether the agreement creates an estate or other proprietary interest which may be binding upon third parties. A lease may, and usually does, create a proprietary interest called a leasehold estate or, technically, a `term of years absolute'. This will depend upon whether the landlord had an interest out of which he could grant it. Nemo dat quod non habet. But it is the fact that the agreement is a lease which creates the proprietary interest. It is putting the cart before the horse to say that whether the agreement is a lease depends upon whether it creates a proprietary interest."

818 No reference to the adaptability of the law to contemporary needs in relation to property dealing would be complete without reference to the growth of uses and trusts. The Courts of Chancery recognised a division between beneficial enjoyment and legal title - a division which the common law did not entertain. The Chancellor enforced a radical departure from the existing system to take account of the social needs which Simpson describes at 174-5 as follows:

"A variety of explanations have been given for the prevalence of feoffments to uses in the Middle Ages. The Crusades, it has been suggested, encouraged the practice by taking landowners out of the country and making it imperative that they left somebody at home in control of their lands. The friars of the Order of St. Francis found it convenient that property should be held by others to their use. Thereby they could, as St. Francis had enjoined, achieve both individual and corporate poverty. Like horses, which used but did not own their stables, the friars used, but did not own, the buildings they occupied. Their resulting complete poverty was thought to imitate the poverty of Christ. Dishonesty also played some part. One who was proposing to indulge in treasonable enterprises could seek to avoid the chance of his lands being forfeit to the Crown for treason by conveying them away to a blameless confederate, to be held to his use. By the fifteenth century it becomes clear that most uses were created for one of four main reasons: they could be employed to assist in simple fraud; they could be used to avoid feudal dues; they could be used to gain a power of devise over land; and they could be used to facilitate the creation of settlements of land."

819 Looking at the development of the equitable jurisdiction on a broader canvas McGarry and Wade, The Law of Real Property (6^th Ed, 2000) describe the growth of the chancery jurisdiction as a response to the rigidities of the common law at par 4-006 as follows:

"...the practice of petitioning the King for justice in exceptional cases gradually opened the way to a supplementary system of law administered regularly by a court, but by a court quite different and separate from the courts of common law. The latter decided cases according to the strict common law rules, and with much fondness for technicality. Chancery, on the other hand, deliberately mitigated the rigour of the common law, tempering its rules to the needs of particular cases on principles which seemed just and equitable to generations of Chancellors, and technical pleas were usually unsuccessful. The common law courts were mainly concerned with enforcing the strict rights of the parties regardless of their merits, whereas Chancery was a court of conscience where remedies would be withheld from a party guilty of sharp practice or any kind of unconscionable conduct."

820 The system of law which saw the growth of a concurrent system to take account of the demands of conscience continues today and is sufficiently flexible to accommodate the notion of the suspension of rights and interests dependent upon the existence of native title. Radical change has, thus, been a part of the development of property law. Indeed, in modern times the international community has developed a legal regime governing the ownership and use of the moon. Whilst Article 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York, 1979 ATS (1986) No 14) prevents any nation from claiming property in the moon, its surface or natural resources, Article 6 confers limited usufructuary rights for the purposes of scientific investigation. The various adaptations described in this section have accommodated changes more radical than those necessary to accommodate the concept of suspension of the rights and interests dependent upon the holding of native title for the duration of the existence of inconsistent rights and interests.

Interests in Minerals and Petroleum

821 It is necessary to say something particular about the effect on native title of mining and petroleum legislation in Western Australia. This section deals with the questions whether that legislation extinguished native title, whether the determination made by Lee J recognises native title rights in respect of minerals and petroleum, and, if so, whether his Honour erred in light of the legislation vesting property in minerals and petroleum in the Crown.

822 I agree with Lee J for the reasons he gives at ALR 577-581 that the following interests did not extinguish native title:

- interests created under the agreement made between the State and the Argyle Diamond Mine Joint Venturers;

- interests created under the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA);

- interests under a mining lease under the Mining Act 1978 (WA);

- interests under an exploration licence under the Mining Act 1978 (WA);

- interests under a general purpose lease under the Mining Act 1978 (WA);

- mining tenements under the Mining Act 1904 (WA);

- tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) for the use of land or water for the purpose of exploring for or recovering petroleum.

823 In par 3 of the declaration made by Lee J his Honour determined that native title interests in the determination area "are the rights and interests of the common law holders of native title derived from, and exercisable by reason of the existence of, the existence of native title..." Then, certain particular rights and interests were set out including:

"...

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

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

g) the right to trade in resources of the 'determination area';

h) the right to receive a portion of any resources taken by others from the 'determination area'

..."

824 In par 4 of the determination his Honour identified other interests created in the determination area which he listed in the third schedule. The "other interests" included:

"...

(c) Interests of lessees under:

...

(iv) Leases granted under the Mining Act 1978 (WA);

...

(d) Interests of licencees under:

...

(iv) Licences issued under the Mining Act 1978 (WA);

...

(f) Interests of holders of tenements under the Mining Act 1904 (WA).

(g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA)."

825 The relationship between the native title interests and the other interests is specified in par 5 of the determination as follows:

"The 'Native title rights and interests' described in para (3) hereof and the 'other interests' described in para (4) hereof are concurrent rights and interests in relation to that part of the 'determination area' to which the 'other interests' relate, but by operation of legislation or by reason of the nature and extent of the 'other interests' created by the Crown, the exercise of some of those concurrent rights...may be regulated, controlled, curtailed, restricted, suspended or postponed."

826 In my view the determination refers to resources of the determination area in the widest sense to mean any materials existing in or on the land or produced from the land. The determination uses the plural form which is defined in the Macquarie Dictionary as "the collective wealth of a country, or its means of producing wealth". The findings made by Lee J indicate that he used the term to encompass all products in or of the country. For instance, at ALR 513 he dealt with the archaeological evidence relating to aboriginal connection with the claim area at sovereignty which revealed the use of resources in the broad sense. Dr Fullagar, an archaeologist, gave evidence that few archaeologists would disagree that aboriginal people have lived in the north-west of Australia for at least 40,000 years. Dr Fullagar's opinion was that it was beyond doubt that the claim area had been occupied by aboriginal people for thousands of generations. His Honour then continued at ALR 513:

"Few extensive archaeological surveys have been undertaken in the region. Both archaeologists agree that the number of archaeological sites recorded to date should be regarded as a minimum. Work that has been done in the region, which does include some intensive surveys in limited areas such as the Miriwun Rock Shelter before the filling of Lake Argyle, demonstrates a pattern of use and occupation of the land by Aboriginal people over thousands of years. The numerous archaeological sites identified and recorded, in and adjacent to the claim area, are but a small fraction of sites in the area but are sufficient to provide a reliable guide to the activities undertaken by Aboriginal people over millennia. Such sites attest to regular, and not random, use of the land by organised groups of people and provide evidence of activities consistent with the occupation of a homeland. For example, rock art in the form of paintings and engravings; quarrying and flaking of stone in the production of tools, in particular, spear points; quarrying of ochre for ceremonial purposes; stone structures and tools; grinding hollows; burial sites and so on. In addition it shows a pattern of usufructuary activities for which the Ord River and surrounding plains were important. It also demonstrates that the lifestyle of the Aboriginal inhabitants made use of the ranges and escarpments by sheltering in rocky outcrops and by extracting material for artefacts as well as obtaining sustenance from the fauna and flora to be found in those locations. Access to water sources, however, governed the lifestyle and the use of sites.

Information obtained from the excavation of sites identifies the activities of Aboriginal people over time and reveals whether there has been continuity or change in their use of land. Excavation of the Miriwun Rock Shelter had shown that site to be used from time to time by small groups that had subsisted by hunting and gathering the same type of food in that vicinity for over 18,000 years, for example, wallabies, possums, bandicoots, lizards, rodents, molluscs, reptiles, catfish and eggs. Other information from excavation conducted at that site, when used in conjunction with ethnographic research available to archaeologists, suggested a continuing system of trade in artefacts had existed between Aboriginal inhabitants in the claim area and Aboriginal groups from more distant places."

827 His Honour referred to the changes in land use after colonisation at ALR 515 as follows:

"Changes in the use of land after colonisation were also noted by the archaeological studies. For example, it can be shown that the quarrying and flaking of stone for spear points all but disappeared and that increased use of rock shelters and more intensive production of rock art indicated a change of pattern of use that occurred when the pastoral industry absorbed the Aboriginal inhabitants...

There was evidence that the trading and exchange of artefacts being carried on between groups from within and outside the claim area continued at the time of European settlement and thereafter..."

828 His Honour found that the aborigines' "right to land", which underlies native title, rested upon the uses made of the land referred to, for instance, in the above passages, but also upon the concept in traditional law that the land including all its resources were part of one meaningful interrelated system. His Honour referred at ALR 522 to the description of the aborigines' special relationship with the land given by Professor Berndt as follows:

"At one conceptual level, everything was brought together into one expanded socio-cultural environment. The deities were manifested predominantly through man, and other living things and other features were selected as intermediaries or symbolic representations: all drew on the same life force. This particular relationship to the land and all within it was phrased as a total dependence upon it - or, rather, a total inter-dependence..."

829 The evidence referred to by his Honour supported the finding that the aboriginal people had rights to exploit resources of the land under traditional law. It is not to the point that the modern means of exploitation of the resources may be different from traditional methods. As Brennan J said in Mabo [No 2] at 61:

"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

830 Thus, in Yanner, it was not significant that the appellant used a dinghy powered by an outboard motor to hunt crocodiles. Gummow J said at 277:

"The appellant hunted the estuarine crocodiles using a traditional harpoon-type weapon, known as a 'wock', using a dinghy powered by an outboard motor. This was an evolved, or altered, form of traditional behaviour. That is, the use of this mechanical device to provide transport during the hunt was not a method of hunting known to the appellant's tribe before contact with non-indigenous people. At trial, the Magistrate held that this method of hunting was consistent with the traditional custom of the appellant's indigenous community. This finding is not challenged."

831 Callinan J noted at 294 that the appellant used "a steel tomahawk to administer the coup de grâce to the crocodiles".

832 This brings me to the question whether the Crown's legislative declaration of property in mineral and petroleum resources extinguished native title.

833 Section 117 of the Mining Act 1904 (WA) provided:

"SUBJECT to the provisions of this Act and the regulations -

(1.) Gold, silver, and other precious metals on or below the surface of all land in Western Australia, whether alienated or not alienated from the Crown, and if alienated whensoever alienated, are the property of the Crown.

(2.) All other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before the first day of January, One thousand eight hundred and ninety-nine, are the property of the Crown."

834 Section 9 of the Petroleum Act 1936 (WA) provided as follows:

"Notwithstanding anything to the contrary contained in any Act, or in any grant, lease, or other instrument of title, whether made or issued before or after the commencement of this Act, all petroleum on or below the surface of all land within this State, whether alienated in fee simple or not so alienated from the Crown is and shall be deemed always to have been the property of the Crown."

835 These sections bear a direct similarity to s 7(1) of the Fauna Act which was the subject of attention in Yanner. It provided:

"(1) All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority."

836 The respondent in Yanner contended that this section conferred on the Crown full beneficial or absolute ownership. After referring to the variable nature of the concept of property the majority said at 265:

"...the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was 'the property of the Crown and under the control of the Fauna Authority'?"

837 In rejecting the respondent's contention the majority said at 266-267:

"Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland. A 'royalty' is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v FCT:

'... the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken.'

That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia.

In light of all these considerations, the statutory vesting of 'property' in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than 'a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource'. So much was acknowledged in the second reading speech on the Bill which first vested property in fauna in the Crown. The Minister said:

'It [the fur industry] is an industry that really belongs to the people, and although the Bill, amongst other things, makes it quite clear that the native animals of the State belong to the people of the State, I do not think there is any doubt in the minds of any one regarding that question already. The native animals belong to the people in just the same way as the timber and the minerals belong to the people, and they cannot be sold without permission.'"

838 The majority elaborated on the importance of the reason for public ownership in considering the impact of such a provision on native title. At 267 they continued:

"Roscoe Pound explained why wild animals and other things not the subject of private ownership are spoken of as being publicly owned. He said:

'We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people." It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. (Emphasis added)'"

839 They concluded at 267-268:

"The 'property' which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken, rights to possession of fauna that had been reduced to possession, and rights to receive royalty in respect of fauna that was taken (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act."

840 The property which the Fauna Act conferred on the Crown was no more than the various rights to control exploitation of fauna as a public resource for the public benefit. The conferral of property in such a way did not extinguish native title. The majority regarded the same reasoning as applicable to powers to control the exploitation of minerals. They referred to the second reading speech of the Minister which equated control over the exploitation of native animals with control over the exploitation of minerals.

841 An examination of the powers conferred on the Crown under the Mining Act 1978 (WA) suggests a limited meaning of the concept of property in that Act. It confers on the Minister powers to grant various specified forms of mining interests - prospecting licences, exploration licences, mining leases, general purpose leases and miscellaneous licences. The Act defines and limits the extent of these interests. For instance, it limits the area and duration of a mining lease. There are procedural provisions which usually require that an application for a licence or lease be considered by the Warden's Court. It specifies priorities in respect of multiple applications for licences and sets out required terms which various instruments under the Act must contain. All these controls and limitations define the nature of the property conferred by the Act. They confer on the Crown a limited power to administer a system for the orderly exploitation of a community asset. Following the approach of the majority in Yanner leads to the conclusion that the conferral of such power on the Crown does not extinguish native title.

842 In The Wik Peoples v State of Queensland & Ors (1996) 134 ALR 637 Drummond J held that the legislative declaration of property in minerals in the relevant Queensland statutes extinguished native title and said at 687:

"Since 1909, the Queensland Parliament has acted to assert public ownership of all minerals in both unalienated and alienated Crown land in pursuance of a clearly discernible policy that the mineral resources of the State are an asset the exploitation of which should be under public rather than private control as an asset intended to be exploited for public rather than private benefit."

843 This is the very policy which the majority in Yanner regarded as informing the nature of the property conferred by the statute in that case. In light of the decision in Yanner, the conclusion that the mining legislation in Queensland conferred full beneficial ownership on the Crown sufficient to extinguish native title cannot be regarded as correct. Thus, Lee J was correct to include pars 3(e)-(h) in the determination.

Lee J's Approach to Extinguishment

844 Lee J set out his approach to questions of extinguishment at ALR 507-510 as follows:

"A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.

Native title at common law is a communal 'right to land' arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere 'bundle of rights'. (See: Delgamuukw per Lamer CJ at 240-241.) The right of occupation that is native title is an interest in land. (See: Mabo (No 2) per Brennan J at 51.) There is no concept at common law of 'partial extinguishment' of native title by the several 'extinguishment' of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, 'native title rights' have been 'extinguished'.

Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished. As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422):

'After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally ... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act.'

Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by 'adverse dominion'. (See: United States v Santa Fe Pacific Railroad Co at 347.)

In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorized by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof. (See also: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)

A similar principle was set out in Mabo (No 2) by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work.

The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of 'adverse dominion' described above:

'And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment.'

(Gaudron J at 166)

'It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.'

(Gummow J at 203)

Of course, for the exercise of rights granted by the Crown to third parties to be seen to be inconsistent with the continuation of native title, it would be necessary to show that the rights granted reflected an intention by the Crown that exercise of the rights remove all connection of an Aboriginal community with land under native title.

It is the concept of extinguishment at common law which s 227 of the Act attempts to reflect when it states that an act 'affects' native title if it 'extinguishes' the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The drafting of s 227 appears to be based on the following statement of Brennan J in Mabo (No 2) (at 69-70):

'Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency...

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

(It was made clear by his Honour in the remainder of that paragraph that extinguishment was not effected until the land was used for the purpose for which it was appropriated.)

In those remarks his Honour, by way of summary, was re-stating a proposition set out earlier in his reasons, namely, that to extinguish native title there must be a clear and plain intention of the Crown to do so whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.

At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words 'extinguish to the extent of the inconsistency' refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be 'extinguished'.

It is not impairment or regulation of the aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown.

In Wik the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.

The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue.

Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the 'revival' of extinguished native title can arise. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740.) If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.)

Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.

Coexistence of competing interests in land, whether recognized at common law or derived from statute, is accommodated under common law and in Australia land law. (M Tehan, 'Co-existence of Interests in land: a dominant feature of the common law', Land Rights, Laws: Issues of Native Title (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997) at 4.) It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of 'extinguishment' or 'partial extinguishment' be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised."

845 The reasoning set out in this passage corresponds with the approach to extinguishment which I have accepted in this judgment. Thus I agree with his Honour's formulation.

Some Specific Arguments of the Appellants on Extinguishment

846 Most of the appellants' arguments against Lee J's approach to extinguishment have been dealt with in the discussion to this point. It is now necessary only to address three specific arguments concerning Lee J's approach to the question of extinguishment as expressed in the following passage at ALR 508:

"In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof..."

1. The role of Crown intention in the case of extinguishment by the grant of inconsistent rights

847 The appellants contended that extinguishment by the creation of inconsistent rights or interests occurred without reference to the intention of Parliament but as a result solely of the inconsistency between the rights or interests created and native title. They contended that the first condition referred to in the extracted passage wrongly required that the expression of a clear and plain intention was necessary to extinguish native title in such circumstances.

848 As explained at 697-710 and particularly at 706-708 of these reasons the requirement for the expression of a clear and plain intention to extinguish native title always applies. Such intention is manifested in the case of the creation of rights or interests in favour of third parties by inconsistency between those rights or interests and native title. It is clear that Lee J approached the matter in this way. Immediately before the passage under consideration Lee J said at ALR 508 lines 28-31 "extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title". Shortly after reference to the first condition Lee J referred to the third condition for extinguishment, which was expressed to be subject to a proviso which stated "unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal grant" and which thereby acknowledged that it is the creation of an inconsistent right which ordinarily leads to extinguishment.

2. The requirement that the inconsistency be permanent

849 The second condition for extinguishment referred to by Lee J at ALR 508 by reference to the judgment of Lambert JA in Delgamuukw was: "that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion..." [emphasis in original]. The State denied the requirement of permanency. The necessity that inconsistent rights created by the Crown be permanently inconsistent with native title rights is discussed in these reasons at 689. Wherever there is a temporal inconsistency, that is, where the native title endures beyond the term of the rights or interests granted to a third party the law recognises an intention by the Crown that native title will be suspended for the duration of the term of the rights granted. Ordinarily, and in this case, under traditional aboriginal law native title is a permanent right to land. In those circumstances it is correct to say that only the grant of rights or interests which are permanently inconsistent with native title will have the effect of extinguishing native title.

3. The requirement for actual use

850 The State contended that Lee J erred in the approach he took to the circumstances in which the use of land would lead to extinguishment. The third condition for extinguishment in the case of the grant of inconsistent rights by the Crown was described by Lee J, again by reference to the judgment of Lambert JA in Delgamuukw, as follows at ALR 508:

"[A]nd third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof."

851 The State contended that this third requirement meant and was interpreted by Lee J to mean that actual use permanently inconsistent with native title had to be shown in each case in order to establish extinguishment. The argument fails at the initial stage. The passage does not require actual use to be shown in order to establish extinguishment. Neither does Lee J require actual use permanently inconsistent with native title to be shown as a precondition for extinguishment. The third consideration concerned an additional circumstance in which extinguishment would occur. The introductory words refer to the usual situation where the grant itself created inconsistent rights or interests and the passage goes on to describe a situation in which extinguishment would occur even though that ordinary situation did not exist. Lee J clearly recognised that there could be extinguishment arising from the grant itself. Only a paragraph before the reference now under consideration, Lee J at ALR 508 referred to the following passage in the judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case at 422:

"Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act."

852 Thus, Lee J held that actual use of land inconsistently with native title would extinguish native title where the grant of the right permitting such use did not itself immediately extinguish native title. He correctly said at ALR 508-509 that this approach was consistent with the following remarks of Gaudron J in Wik at 166:

"And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment."

and Gummow J in Wik at 203:

"It may be that the enjoyment of some or all native title rights with respect to particular portions of the ...(pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title."

853 If there is any doubt about what Lee J meant, that doubt is dispelled by reference to his Honour's source, namely, the judgment of Lambert JA in Delgamuukw. Lambert JA recognised that native title could be extinguished by legislation or acts taken pursuant to legislation without the doing of any act on the land itself which was inconsistent with native title. In setting out the principles of extinguishment he was concerned to emphasise the overriding need for the legislature to express a clear and plain intention to extinguish native title before that result ensued. Indeed he rejected the approach of Judson J in Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 on the basis that the exercise of dominion by the State over land without the expression of clear and plain intention by the legislature to extinguish native could not have an extinguishing effect. In his view the touchstone in every case was the expression of legislative intent to extinguish. He explained where adverse dominion fitted into his classification at 668 as follows:

"Express (or explicit) extinguishment is extinguishment brought about by the sovereign power acting legislatively in an enactment which provides on its face and in its terms for extinguishment, either on the coming into force of the enactment or on the happening of an event described in the enactment.

Implicit extinguishment is extinguishment brought about by the sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which brings into operation a legislative scheme which is not only inconsistent with aboriginal title or aboriginal rights but which makes it clear and plain by necessary implication that, to the extent governed by the existence of the inconsistency, the legislative scheme was to prevail and the aboriginal title and aboriginal rights were to be extinguished.

In the case of implicit extinguishment the extinguishment brought about by the clear and plain intention demonstrated by the necessary implication may be brought about by the enactment of the legislation itself, because the necessity for extinguishment may occur at that point (which I will call implied extinguishment), or it may be brought about by the administrative or executive actions authorized by the legislation, because the necessity for extinguishment may occur only when the administrative or executive action occurs (which, because this term has been used already in the cases and not because it is perfectly descriptive, I will call extinguishment by adverse dominion)."

854 His Honour's emphasis on the necessity for the expression of legislative intent to extinguish is seen in his dealing with the question of the creation of rights and interests inconsistent with the rights and interests dependent upon the existence of native title. At 670 he said:

"In short, I do not consider that the sovereign power's clear and plain intention to extinguish aboriginal title and rights can be demonstrated in any other way than by legislation passed by the sovereign in Parliament. The fact that there is an inconsistency between the exercise of powers granted by legislation and the exercise of aboriginal rights does not extinguish the aboriginal rights to the extent of the inconsistency, nor does it necessarily suspend them, unless it is clear and plain from the legislation itself that those consequences had been made the subject of clear, plain and considered legislative intention." [Bold emphasis added]

855 This discussion was the background to the statement of the three conditions necessary for extinguishment by adverse dominion referred to by Lee J. It makes clear that extinguishment of native title flowing from the use of land was a further method of extinguishment arising when extinguishment did not flow from the terms of a statute or a grant made under such statute.

856 In Mabo [No 2] Brennan J said at 49-50 that a Crown grant which created an interest inconsistent with native title necessarily extinguished native title. Lambert JA at 671 expressed reservation about this passage and Beaumont and von Doussa JJ in these appeals refer to the reservation as an indication of a divergence of views between Lambert JA and Brennan J. Lambert JA at 672 explained his reservation as follows:

"I do not think that the effect of a grant should determine the test of legislative intention, unless it is clear and plain from that effect that the intention to extinguish is clear and plain." [Bold emphasis added]

857 In my view the difference between the approaches is one of emphasis. Lambert JA stressed that in all cases of extinguishment clear and plain intention must be shown, while Brennan J focussed on the specific case where inconsistent rights were created. I do not read Brennan J as suggesting that an intention to extinguish native title is not necessary in the case of the grant of inconsistent rights. He was concerned to point out that actual intention need not be shown. Rather, the intention was to be gathered from the nature of the grant.

858 The manner in which Lee J dealt with pastoral leases was given as an example by the State of his Honour's erroneous approach of requiring inconsistent use to be shown in order to establish extinguishment. However, close attention to his Honour's reasons does not substantiate this criticism. The starting point for his Honour was to enquire whether the Crown had displayed an intention to extinguish native title. In the case of pastoral leases in the State of Western Australia his Honour noted the existence of the limitations on the possessory rights conferred on the lessee and the reservations in favour of aboriginal people. He then observed that there was no material difference between the pastoral leases in Wik and the pastoral leases in the present case. He then said at ALR 558:

"The conclusion must follow that in granting a pastoral lease the Crown did not act to extinguish native title."

859 Only after this conclusion was reached did his Honour consider the separate and further question whether the use of the land subject to pastoral leases was inconsistent with native title. Having examined the uses of the land and having concluded that none were inconsistent with native title, his Honour did not need to consider the question of the validity of the pastoral leases. In explaining this conclusion, his Honour clearly indicated that the issue of use of the land was an alternative basis, not an additional factor in every case for finding that extinguishment had occurred. He said at ALR 559-560:

"In light of the foregoing conclusion that neither the grant of a pastoral lease or use of the land pursuant to the lease reflected a Crown intention to extinguish native title, it is unnecessary to consider further submissions by the first applicants that the State had not proved that valid leases were issued under the Land Regulations 1882 (WA) and the Land Regulations 1887 (WA) in respect of pastoral leases issued prior to 1898."

860 The State contended that his Honour erred in the same respect in his approach to the other interests in land considered by him. However, the approach taken in each instance mirrored the approach taken in respect of pastoral leases, and was therefore correct.

Determination on the Question of Extinguishment

861 For the reasons elaborated earlier in this judgment, in my view Lee J formulated the correct test applicable to the determination of the questions of extinguishment in the present case. I also agree with the detailed application of this test undertaken by his Honour between ALR 552 and 638 in relation to the many interests considered by him. Further, I agree with the reasoning of his Honour on the subsidiary issues dealt with as part of the consideration of the extinguishment issue. In the light of my agreement with Lee J it is unnecessary for me to repeat the detailed reasoning in respect of each right or interest in land considered by him.

Onus of Proof of Extinguishment

862 I agree with the judgment of Beaumont and von Doussa JJ (pars 113-120) on this question.

RECOGNITION OF A NATIVE TITLE RIGHT TO MAINTAIN, PROTECT AND PREVENT THE MISUSE OF CULTURAL KNOWLEDGE

863 Lee J found that the applicants had established an entitlement to much of the land in the claim area deriving from their connection to it. The rights and incidents dependent on that entitlement were determined as a result of an examination of the evidence relating to the law and customs of the aboriginal people of the locality. From that examination his Honour included par 3(j) of the determination as a particular right dependent on the existence of native title. Paragraph 3(j) reads:

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

864 This particular right followed from his Honour's finding at ALR 538:

"Rules relating to control of knowledge of separate men's and women's law are followed and regarded as important in the organisation of the community. There is a common belief that breach of an important aspect of Miriuwung Gajerrong 'law' will visit consequences upon that person."

865 The knowledge under consideration by his Honour was knowledge intimately linked with the land. The evidence of such link relied upon by his Honour came from the report of Mr Akerman (Exhibit A48) which included at pages 14-16 the following:

"The association with particular tracts of country whether acquired patrilineally or matrilineally, as country or site of conception or birth, of adoption or long term residency, or as a regent infers that one has certain rights to that country and obligations of both sacred and secular import, both to the country and the group, that must be fulfilled. Secular ways of looking after country may include the regular firing of country either to keep it open and clear the seasonal accumulation of rank grasses and trash; or in the course of one or other of various hunting strategies involving the driving of game or the luring of game such as goanna and bustard to scavenge in freshly burnt country or attracting macropods to congregate to graze on tender new growth. The cleaning and maintenance of springs by owners or custodians has been documented by Palmer and Williams (1980:43). Springs, as well as larger permanent waterholes, are regarded as the abodes of beings generally known as Rainbow Serpents and care is required in order to maintain harmony with them and cause no offense that may unleash their awesome powers. Offended Rainbow Serpents are believed to be able to assume many forms and are capable of the most violent acts. Cyclone Tracy which destroyed much of Darwin in 1974 is, for example, believed by many Aboriginals, in both the Kimberley and adjacent parts of the Northern Territory, to have been a manifestation of a Rainbow Serpent.

From a religious perspective the acquisition of knowledge concerning the metaphysical rationale of the landscape is perhaps the primary way in which an individual can be perceived as caring for country. This acquisition takes place from an early age. Children are taught 'open' versions of the myths associated with their locale in much the same way as Christian toddlers are introduced to Bible stories. As a child grows the stories are placed in a topographical perspective which validates both the mythology and the bond between the Dreaming, the child and the land. A youth, in the course of initiation into manhood and induction into the religious life of his cultural group, acquires deeper knowledge of the events of the Dreaming, particularly those with which he is directly associated with [sic]. He is also taught the rituals and associated songs that he will ultimately have primary responsibility for. As well as acquiring knowledge related directly to his patrilineal estate; religious knowledge relating to other country and people with which he may be associated with through kin ties, or with whom he shares elements of the dreaming in common are also learnt. The acquisition of ritual knowledge including sacred objects may be seen as an introduction to, and an affirmation of, an individual's right to belong to a body corporate that is associated with, through various religious and social links, certain tracts of land. Sacred objects are often described to non-Aboriginal people as 'Title Deeds', the possession of which ratifies the owners claim to, and association with, a particular country. Conversely, country which is not associated with ritually or otherwise is potentially extremely dangerous a factor that readily deters responsible and knowledgeable people from claiming land that they (and the wider society) know there can be no real claim to. The deeper, wider and more diligently a male acquires a corpus of religious knowledge, the greater his general status and influence becomes.

A cursory glance at the site lists and records amassed over the past decade or so clearly indicates that the majority of Miriuwong and Gajerrong sites recorded can be considered to be of a religious nature, that is they are perceived as existing from the Ngarrangkanni. Of these sites, many are documented as being ritually significant, they being celebrated or referred to in one or other of the major religious cult rituals of the Miriuwong and Gajerrong. The ownership of these sites and the songs and rituals associated with them can possibly be considered the most valuable 'property' that one can possess. The acquisition of these bodies of knowledge must be paid for by the novice and transmission is not lightly undertaken. The person who holds such knowledge may legitimately display that knowledge at the appropriate time to his religious peers with the approval of his seniors. He will, in time, become a senior himself with the responsibility of deciding on maintaining the continuity of transmission of that knowledge to appropriate individuals who have demonstrated a maturity that indicates that the knowledge is in safe hands."

866 This extract usefully highlights how the secular and spiritual aspects of the aboriginal connection with the land are twin elements of the rights to the land. Thus, the obligation to care for country has a secular aspect - burning the land - and a spiritual aspect - acquiring knowledge of ritual. The protection of ritual knowledge is required by traditional law. Traditional law treats both elements as incidents of native title. There is no reason why the common law recognition of native title should attach to one incident and not the other. Because common law recognition is accorded to the entitlement to land as defined by traditional laws and customs the contrary conclusion should follow.

867 The importance of the recognition of the spiritual as well as the secular aspects of native title was emphasised by the majority in Yanner at 270 as follows:

"And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land."

868 Thus, the contention of the State that the right to maintain, protect and prevent the misuse of cultural knowledge is not a right which falls within the recognition of native title by the common law should not be accepted. Consequently, Lee J did not err by including par 3(j) in the determination.

869 In Bulun Bulun v R & T Textiles [1998] FCA 1082; (1998) 157 ALR 193 von Doussa J considered the recognition of communal aboriginal title in a painting which depicted traditional ritual knowledge. Through the artist, Bulun Bulun, the aboriginal community claimed the right to prevent the respondent from reproducing sacred images on material. The case was argued and rejected as a claim for an equitable interest in the legal copyright in the painting. The focus of the case was on the consequences flowing from the reproduction of a work of art. The impact of copyright law was thus an important consideration in his Honour's conclusion that the common law did not recognise communal title in the circumstances. The common law had been subsumed by statute. The question currently under consideration is not complicated by the intrusion of statute law. The present issue is whether the common law recognises a right to prevent misuse of cultural knowledge as an incident of native title and the Bulun Bulun case does not assist in resolution of that matter.

DISPOSITION OF THE APPEALS

870 It follows from my agreement with Beaumont and von Doussa JJ on the native title questions referred to in para 682 of these reasons, and my agreement with Lee J on the questions of extinguishment, that the appeals should be dismissed.

COSTS

871 Lee J ordered that the State and Territory pay ninety percent of the applicants' costs and that, as between them, the State pay seventy-five percent of the costs and the Territory twenty-five percent of the costs.

872 The relevant statutory provisions and the reasoning of Lee J are set out in paras 42-43 and 668-679 of the judgment of Beaumont and von Doussa JJ in these appeals. I adopt those paragraphs and, save for one passage, I do not need to repeat the contents.

873 The decision of Lee J on the question of costs was a discretionary decision to which the principles referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 apply. This Court is not justified in interfering with his Honour's decision unless he acted on a wrong principle, or if he allowed erroneous or irrelevant matters to guide or affect him, or if he mistook the facts or if he failed to take into account some material consideration.

874 It was suggested that Lee J had erred in principle in the construction of s 85A of the Native Title Act. His view is succinctly expressed at [1999] FCA 580; 163 ALR 149 at 155 as follows:

"The discretion of the court to award costs is not confined. The matters to be taken into consideration in making such an order are left to the court as a discretion to be exercised judicially. But the starting point will be that each party will bear their own costs unless the court determines that it is appropriate in the circumstances to make an order for costs."

875 I agree with this construction for the reasons given by his Honour.

876 No other grounds of attack which would justify this Court's intervention have been raised. Rather, the State asked this Court to come to a different view on the question of costs by reference to the same material that was before his Honour. This is not the proper function of an appellate court.

877 As the question of costs of the appeal was not argued I would adjourn further consideration of that matter to a date to be fixed.

Associate:

Dated: