HCA Wik Peoples

REPORTS OF CASES
DETERMINED IN THE
HIGH COURT OF AUSTRALIA
THE WIK PEOPLES .
ApPLICANTS,
AND
THE STATE OF QUEENSLAND AND
OTHERS .
RESPONDENTS,
THE THAYORRE PEOPLE ..
ApPLICANTS,
AND
THE STATE OF QUEENSLAND AND
OTHERS .
RESPONDENTS,
ApPELLANTS;
RESPONDENTS.
ApPELLANTS;
RESPONDENTS.
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
Aboriginals - Native title to land - Pastoral lease - Grant under statutory
authority - Effect of grant upon native title - Gralll for pastoral
purposes - Exclusive possession - Inconsistency of rights - Effect of
exercise of rights under lease - Reversionary right of Crown - Land
Act 1910 (Q), s 6( I), Pt JJJ - Land Act 1962 (Q), s 6( I), Pt VI.
Statutes - Authority to make agreemelll - Agreement having force of law as
though enactment - Agreement providing for grant of mining lease -
Effect of grant upon native title to land - Commonwealth Aluminium
CO/]JOration Ply Limited Agreement Act 1957 (Q) - Aurukwl Associates
Agreement Act 1975 (Q).
The Land Act 1910 (Q) empowered the Governor in Council in the
name of His Majesty to grant in fee simple or demise for a term of years
any Crown land within Queensland: s 6( I). Part III provided for the grant
of pastoral leases and occupation licences for pastoral purposes.
The Land Act 1962 (Q) empowered the Governor in Council in the
name of Her Majesty to grant in fee simple or demise for a term of years
or in perpetuity or deal otherwise with any Crown land in Queensland.
Part VI authorised the creation of pastoral leases (of three classes,
H COF A
1996
June 11-13
Dec 23
1996
Brennan CJ,
Dawson.
Toohey,
Gaudron,
McHugh,
Gummowand
Kirby JJ
2 HIGH COURT [1996
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pastoral holdings, pastoral development holdings, and preferential
pastoral holdings), stud holdings and occupation licences.
A pastoral lease over 535 square miles (the MPH area) was granted in
1915 under Pt III, Div I of the 1910 Act. It was for a term of thirty years
at a yearly rent and was expressed to be for pastoral purposes only. The
lessees never took possession of the holding and it was forfeited in 1918
for failure to pay rent. In 1919 another lease was granted of the MPH
area, in similar terms, under Pt Ill, Div I of the 1910 Act. In Inl it was
surrendered under s 122 of that Act. In 1922 the area was reserved by
Order in Council for the use of Aboriginal inhabitants of Queensland.
Both MPH leases contained "reservations", to the Crown of a right of
access to search for or work gold and minerals, and to any person
authorised by the Governor in Council of a right to go upon the land for
any purpose whatsoever or to make any survey, inspection or
examination.
A pastoral lease over 1,119 square miles (the HRH area) was granted
in 1945 under Pt III, Div I of the 1910 Act. It too was for a term of thirty
years at a yearly rent and was expressed to be for pastoral purposes only.
In 1973, after an application by the lessees for the grant of a new lease
under the 1962 Act, the lease was surrendered and in 1975 a new lease
was granted under Pt VI, Div I of that Act for a term of thirty years at a
yearly rent. It was not expressed to be for pastoral purposes only but it
was granted on condition that within five years the lessees carry out a
number of improvements, sow a seed production area and fence the
holding and that they maintain all improvements during the whole term.
None of the leases referred to the use of any part of the leased areas by
Aboriginals.
Proceedings were brought by two Aboriginal peoples who claimed to
hold native title over the MPH area and the HRH area. They claimed that
their title was not extinguished by the granting of pastoral leases but co-
existed with the interests of the pastoral lessees. The Aboriginal peoples
asserted that the pastoral lessees did not acquire a right to exclusive
possession of the two areas and that, even if they did, it was not the right
to exclusive possession but only its exercise that excluded the holders of
native title. They also contended that native title was suspended, not
extinguished, during the term of the lease and that the Crown held the
reversion as a fiduciary for the holders of native title.
Upon preliminary questions of law:
Held, by Toohey, Gaudron, Gummow and Kirby 11, Brennan CJ,
Dawson and McHugh 11 dissenting, (I) that the leases did not confer
rights to exclusive possession of the areas on the grantees.
(2) That the grants of the leases did not necessarily extinguish all
incidents of native title in respect of the areas.
O'Keefe v Williams (1910) II CLR 171 and Mabo v Queensland
[No 2J (1992) 175 CLR I, considered.
North Ganalanja Aboriginal Corporation v Queensland (1995) 61
FCR I at 14, 55-56, disapproved.
Per Toohey, Gaudron, Gummow and Kirby 11. The rights and
obligations of the grantees of the pastoral leases in question depend upon
the terms of the grant of the pastoral lease and upon the statute which
authorised it. There was no necessary extinguishment of native title
rights by reason of the grant of those pastoral leases. Whether there was
187 CLR 1] OF AUSTRALIA 3
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.
Per Toohey J. Extinguishment of native title rights in respect of
particular land depends upon inconsistency between them and rights
granted by a dealing by the Crown with that land. Inconsistency can be
determined only by identifying the rights and interests that are asserted in
relation to the granted areas (focusing on the traditions, customs and
practices of the particular Aboriginal group) and measuring them against
the rights conferred on the grantees of the pastoral leases. Some activities
authorised, or required, by the grant of a pastoral lease will be
inconsistent with native title rights which approach the rights flowing
from full ownership at common law but mayor may not be inconsistent
with a more limited right.
Per Gaudron J. 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.
Per Gummow J. The extinguishment, abrogation or impairment of
native title rights may be effected either by clear, plain and distinct
authorisation by a grant of pastoral interests necessarily inconsistent with
all species of native title which might have existed or by the performance
of conditions imposed by the grant.
Per Kirby J. The extinguishment of particular native title rights in
respect of land the subject of a pastoral lease depends upon their
inconsistency with the rights enjoyable under the pastoral lease. That is a
matter for evidence. If inconsistency is demonstrated in a particular case
the rights under the pastoral lease will prevail over native title. If not, the
native title will survive and co-exist with the rights under the lease.
The Commonwealth Aluminium Corporation Pty Limited Agreement
Act 1957 (Q) authorised the Premier and Chief Secretary to make, for
and on behalf of the State, with CAC (a mining company) an agreement
a copy of which was set out as a schedule to the Act: s 2. Upon the
making of the agreement its provisions were to have the force of law as
though it were an enactment of the Act: s 3. The agreement authorised by
the Act was duly executed and in 1958 was proclaimed to have been
made. Upon the satisfaction of the conditions of the agreement, CAC
became entitled to the grant of a special bauxite mining lease the terms
of which were set out in a schedule to the agreement. Pending the issue
of that lease CAC was entitled under the agreement to occupy the area to
be leased and to exercise all the rights and powers intended to be granted
under the lease. The special mining lease was issued in 1965.
Held, that it was not open to a native people who asserted the
existence of native title in the areas the subject of the special mining
lease to challenge the validity of the CAC agreement or the lease on the
ground that they had been made or granted in breach of the requirements
of procedural fairness to which the native people were entitled or that
they were negotiated or executed in breach of trust or fiduciary duty.
Labrador Co v The Queen [1893] AC 104 at 123; Hoani Te Heuheu
Tukino v Aotea District Maori Land Board [1941] AC 308 at 322;
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British Railways Board v Pickin [1974] AC 765 at 791; and Corporation
of the Director of Aboriginal and Islanders Advancement v Peinkinna
(1978) 52 ALJR 286 at 291; 17 ALR 129 at 138, applied.
(a) The authority conferred by s 2 to make the CAC agreement was
directed to the particular agreement which the Parliament expected to be
made and no other source of power was needed to enter into the
agreement.
(b) Once made, pursuant to Parliament's authority, the CAC
agreement had the force of law as though itself part of the enactment and
the rights conferred by it had the same status as rights conferred by
legislation.
(c) Since the CAC agreement obliged the State to grant the particular
lease to CAC, even though the lease had no statutory status, its validity
could not be impugned on the grounds that it had been granted in breach
of a duty to accord procedural fairness or of fiduciary duty.
Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR I HC
93 at 112, applied.
Decision of the Federal Court of Australia (Drummond J): Wik
Peoples v Queensland (1996) 63 FCR 450, varied.
ApPEALS from the Federal Court of Australia.
The Wik Peoples, who were described in the statement of claim as a
community or group of Aboriginal people who normally reside on or
near their traditional lands between Embley River and Moonkan Creek
on Western Cape York Peninsula in North Queensland, on 30 June
1993 commenced a proceeding in the Federal Court of Australia
against the State of Queensland, the Commonwealth of Australia, the
Aboriginal and Torres Strait Islander Affairs Corporation (ATSIC),
ComaIco Aluminium Ltd (ComaIco), Aluminium Pechiney Holdings
Pty Ltd (Pechiney), the Council of the Shire of Aurukun, the
Napranum Aboriginal Council, the Pormpuraaw Aboriginal Council,
and Eddie Holroyd seeking certain declarations and other orders. By
an amended statement of claim they alleged, amongst other things, that
the Wik Peoples had always been the holders of Aboriginal title in the
lands the subject of the proceedings and had been in long
uninterrupted possession of such land and, in particular, had
continuously used, occupied, inhabited and possessed such land;
maintained a traditional connection with such land; and enjoyed their
Aboriginal title to such land.
By their amended application filed on 12 September 1994, they
claimed declarations that the Wik Peoples were the owners of
specified areas (the Holroyd areas) and of the natural resources of each
of those areas pursuant to their Aboriginal title and their possessory
title and that those titles included sub-surface rights, especially
ownership of minerals found in, on or below the surface of each of the
areas. They also claimed that the Aboriginal title and possessory title
of the Wik Peoples to the areas to which Mining Lease 7024 applied
187 CLR I] OF AUSTRALIA 5
(the ML 7024 areas) were not and had not been extinguished at law or
impaired in any respect and that the making of the Comalco
Agreement (scil the agreement to which the Commonwealth Alu-
minium Corporation Pty Limited Agreement Act 1957 (Q) (the
Comalco Act) applied) the enactment of the Comalco Act and the
granting of ML 7024 were beyond the powers of the State and invalid.
Alternatively, they claimed declarations that the decisions to enter into
the Comalco Agreement and to grant ML 7024 was void because of
breach of the requirements of procedural fairness, that in respect of the
ML 7024 areas and in relation to the enactment of the Comalco Act,
the making of the Comalco Agreement and the grant of ML 7024 the
State was a trustee for the Wik Peoples and owed fiduciary duties to
them, and that it was in breach of its duties under the trust and the
fiduciary duties. Damages and an account were claimed. Declarations
were claimed that Comalco was liable as constructive trustee to
account to the Wik Peoples for profits made and benefits gained in
consequence of those breaches and that Comalco and the State were
liable to account in respect of payments received and benefits obtained
from the making of the Comalco Agreement and the granting of part
of ML 7024 within a specified area on the footing of unjust
enrichment and that Comalco was a trespasser upon the ML 7024
areas. Damages and injunctions were also claimed.
Similar claims were made against the State, ATSIC and Pechiney in
respect of the enactment of the Aurukun Associates Agreement Act
1975 (Q), the making of the Aurukun Associates Agreement (scil the
agreement to which that Act applied) and the grant of ML 7032
thereunder.
Declarations were also claimed that if any grants, for pastoral
purposes of a lease, licence or permission, for certain areas as were
current as at 30 June 1993 and were continuing, made pursuant to laws
passed by the Queensland Parliament had extinguished or impaired the
Aboriginal title or possessory title of the Wik Peoples and their
predecessors in title, such purported grants were beyond the power of
the Parliament and are invalid; or, alternatively were and had always
been subject to a reservation in favour of the Wik Peoples and their
predecessors in title of rights and interests comprising their Aboriginal
title; had not conferred exclusive rights of possession on the grantees;
and had conferred only rights not inconsistent with the concurrent and
continuing exercise of the rights of the Wik Peoples and their
predecessors in title under their Aboriginal title. Other claims were
made which are not relevant to the appeals.
Other respondents were subsequently joined to the proceeding:
C C and D R Quartermaine, Merluna Cattle Station Pty Ltd, John
Bock, Reefdeen Pty Ltd, R J and J R Price, R M Fraser, M K and D A
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Gostelow and the Thayorre People. The individuals added as
respondents and the two companies were the registered lessees in
respect of pastoral leases for areas specified in the original statement
of claim.
The Thayorre People cross-claimed against the Wik Peoples, the
State, the Commonwealth, the Pormpuraaw Aboriginal Council and
Eddie Holroyd seeking certain declarations and orders to the effect that
by virtue of their Aboriginal title they were the owners of certain areas
(the Mitchellton areas). Those areas in part overlapped the areas the
subject of the Wik Peoples' claim.
Pursuant to 0 29, r 2(a) of the Federal Court. Rules 1979,
Drummond J ordered that certain questions should be decided before
trial separately from other questions in the proceeding. So far as is
relevant to these appeals those questions and the answers of
Drummond J (l) are set out in the judgment of Brennan CJ at pp 65-
67.
The Wik Peoples and the Thayorre People gave notice of appeal to
the Full Court of the Federal Court from those parts of the judgment
and order of Drummond J as affected them on 27 March 1996 and
4 April 1996. The appeals were removed into the High Court pursuant
to s 40 of the Judiciary Act 1903 (Cth).
At the commencement of argument leave was given to intervene in
the appeals, limited to the issues raised by the notices of appeal, to the
States of Victoria, Western Australia and South Australia and the
Northern Territory, the Kimberley Land Council and others, the
Northern and Central Land Councils and Ben Ward and others on
behalf of the Miriuwung and Gajerrong People. The Commonwealth
indicated that, while it did not object to the grant of leave, it did not
regard it as a precedent for other cases where intervention might not be
appropriate.
W Sofronoff QC (with him R W Blowes and G L Newton), for the
Wik Peoples (appellants and respondents to appeal by the Thayorre
People), referred to the history of the Mitchellton and Holroyd pastoral
leases. The grant of those pastoral leases did not extinguish native title,
a form of title recognised by the common law, because neither the
Land Act 1910 (Q) and the Land Act 1962 (Q) (collectively "the
Act") nor the pastoral leases granted pursuant to them reveals either
expressly or by necessary implication a clear and plain intention to do
so. There is no need to imply into the pastoral leases an unqualified
right to exclude traditional owners from their land. Alternatively, it is
not possible, in the abstract, to determine that the Mitchellton and
(1) Wik Peoples v Queensland (1996) 63 FeR 450.
187 CLR 1) OF AUSTRALIA 7
Holroyd leases extinguished native title, because (a) extinguishment
ought to be only to the extent of actual inconsistency in the exercise of
the rights of traditional occupants and pastoralists; and (b) there has
been no finding that there has been inconsistency. Whether the grant
of a pastoral lease extinguishes native title involves the construction of
the Act (because the grant is an exercise of statutory power) and of the
lease. The construction principles are settled: (a) there is a strong
presumption that a statute is not intended to extinguish native title (2);
(b) the intention to extinguish native title be clear and plain (3);
(c) general provisions ought not be construed as intending to bring
about extinguishment if they are susceptible of other, less burdensome,
construction (4); (d) whether, by necessary implication, the Act
extinguishes native title depends on its language, character and the
purpose it is designed to achieve (5); (e) "necessary implication"
imports a high degree of certainty as to intention (6); (f) it ought be
assumed that the object of the Act was to achieve its desired result
with as little disruption as possible and without affecting accrued
rights and existing status more than necessary (7); (g) if the Act is
wholly or partially inconsistent with a continuing right to enjoy native
title, that title is extinguished pro tanto but where it is consistent with
continuing concurrent enjoyment, native title continues (8). There is no
express statement (a) in the Act, of an intention to extinguish native
title or to grant to the pastoralists a right to eject traditional occupants
from their traditional lands; or (b) in the pastoral leases, that the
pastoralists had a right to possession to the exclusion of the traditional
occupants who had enjoyed and continued to enjoy rights now
recognised as constituting native title, Hence the respondents must
establish, by necessary implication, a clear and plain intention in the
Act to extinguish native title, It is significant that the ultimate effect of
such an intention would be to grant the pastoralists an "unqualified
right to tum indigenous people off the land" (9). The 1910 and the
(2) Mabo v Queensland (Mabo [No 1]) (1988) 166 CLR 186 at 224; Mabo v
Queensland (No 2) (Mabo [No 2]) (1992) 175 CLR I at 96; Western Australia v
The Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 422.
(3) Mabo [No 1] (1988) 166 CLR 186 at 213; Mabo [No 2J (1992) 175 CLR 1 at 64.
110-111, 136, 138, 193, 195, 196; the Native Title Act Case (1995) 183 CLR 373
at 423.
(4) Mabo [No 1] (1988) 166 CLR 186 at 213, 223.
(5) cf Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290, 309; Pyneboard
Pry Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341; Corporate
Affairs Commissioner (NSW) v Yuill (1991) 172 CLR 319.
(6) Hamilton v Oades (1989) 166 CLR 486 at 495.
(7) Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 529 (quoted in the
Native Title Act Case (1995) 183 CLR 373 at 433).
(8) Mabo [No 1] (1988) 166 CLR 186 at 212; Mabo [No 2J (1992) 175 CLR I at 69,
76,89, 110, 196.
(9) Re Waanyi People's Native Title Application (Re Waanyi) (1995) 129 ALR 118
at 137.
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1962 Act concerned a number of forms of pastoral tenure and other
forms of dealings with Crown land, as defined. No provision expressly
dealt with native title or even the exercise of traditional rights. The
Acts concerned the granting of rights to permit persons to occupy and
use Crown land for pastoral purposes. Because the recognition of
native title by the common law was not declared until Mabo
[No 2J (10), it could not have been within Parliament's contem-
plation (II). Hence any implication of extinguishment depends not on
actual intention but on whether it is necessary to construe the Act as
granting such unqualified rights as have the effect of wholly
extinguishing native title. The nature of the entitlements conferred
have to be characterised in the light of the statutory provisions without
attaching too much significance to similarities with the creation of
particular interests by a common law landowner, eg by the use of
"lease", without considering other factors (12). The Act may be read
as affecting native title at different stages. No one contends that it
should be read as wholly extinguishing native title on enactment. It
may be read as effecting an immediate extinguishment upon the grant
of the pastoral lease because it confers a right of exclusive possession.
The respondents contend that a pastoralist thus has an unqualified right
to eject trespassers. That is so in respect of a person who enters or
remains on the land without right. But there is no need to imply such a
power in respect of traditional occupants who remain in reliance on
prior title recognised by common law. The pastoralists do not have a
right of possession exclusive of the traditional occupants pursuant to
either the Act or the leases. A statute which may affect rights should
be read so as not to impair them more than its purposes require. The
Acts do not require the implication of the extreme, unqualified right
for which the respondents contend. Pastoralists and native title holders
have co-existed on pastoral leases (and they must be assumed for this
appeal to have done so in the case of these leases). The need for
Parliament to grant pastoralists a right to possession of all land under
pastoral lease to the exclusion of traditional occupants has not been
demonstrated and is not self-evident. In granting rights to occupy and
conduct pastoral activities, it must have been intended to grant every
incidental power necessary for their enjoyment. But a right to
possession, exclusive of traditional occupants, of vast tracts, a great
part of which might never be used, or be capable of use, for pastoral
purposes, is not necessary. Since the grant of such powers may involve
the destruction of rights recognised at common law, neither Act nor
leases should be read as conferring any greater, unexpressed,
(10) (1992) 175 CLR 1.
(II) cf the Native Title Act Case (1995) 183 CLR 373 al 321; Re Waanyi (1995) 129
ALR 118 al 135.
(12) R v Toohey; Ex parte Meneling Station (1982) 158 CLR 327 at 344; cf Minister
for Lands v McPherson (1990) 22 NSWLR 687 al 696.
incidental power than necessary for enjoyment of pastoral rights. The
only right that needs to be implied to exclude traditional occupants or
prevent the exercise of native title rights is one to do so when it is
necessary for the pursuit of pastoral activities pursuant to the leases.
The exercise of that right may impair native title, partially, totally,
temporarily or permanently. Until it is exercised, native title is
unaffected and the extent of impairment is unknown. Only where the
exercise of such a right results in the total and permanent severance of
the traditional society's link with its land and the permanent cessation
of the observance of traditional laws and customs is native title
extinguished. Otherwise the exercise of pastoral lease rights only
affects native title rights to the extent and for the period of any
inconsistency. The implication of such a limited power is consistent
with the reality of continued occupation by traditional occupants, the
knowledge of such occupation by the State and pastoralists, and the
history of pastoral leases. It also accords with the history of the
legislative treatment of Aboriginals by the State. Pastoralists never in
fact had possession exclusive of traditional occupants (13). It was
always intended by the State and accepted by it and the pastoralists
that traditional occupants would remain and exercise what are now
recognised as native title rights concurrently with the consistent
exercise of pastoralists' rights. Traditional occupants have occupied
country the subject of pastoral leases since grant without any relevant
change in the exercise of native title rights. The State policy towards
Aboriginals, manifested in statutes enacted for their welfare and
speeches and proceedings relating to them, shows no intention to treat
them as trespassers. Testimony before Parliament in 1901 demon-
strates the absence of any desire by the government to do so, no
appreciation of having power to do so, or wish to obtain it under the
Act. If the Act were to be construed as involving the expulsion of
traditional occupants, by necessary implication, it is significant that
Parliament did not consider or provide for what was to happen to
them. If it intended to extinguish native title, it is odd that it did not
provide a legislative solution. There was no policy to shift traditional
occupants from their homes and no appreciation that the grant of
pastoral leases had effected a loss of the right to remain. They did not
become trespassers. The implication into the lease of an unqualified
power to exclude does not satisfy (14). The respondents' construction,
with exclusive possession as linchpin, is too technical and narrow. It
places too much significance on the word "lease" and avoids
(13) North Ganalanja Aboriginal Corporation v Queensland (Re Waanyi) (1995) 132
ALR 565 at 586.
(14) Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
at 347.
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objective consideration of the rights it was intended to grant (15).
Comparison with private leases is unhelpful because there is no
question of the destruction of existing rights or, if there is, common
law or equity provides the solution. The rights of traditional occupants
which precede the grant of a pastoral lease have no bearing upon the
lessee's right to quiet enjoyment against the Crown (16) or to
exclusive possession against those who do not occupy under any
colour of title or prior grant (17). A pastoral lease granted under the
Act is primarily concerned with defining the pastoralist's title vis-a-vis
the Crown. Pastoralists' rights are limited in other respects too (18). A
pastoral lease was and is a qualified form of tenure. The vast list of
derogations, exceptions and potential exceptions arrayed against the
rights of possession suggest it is inappropriate to equate possession
enjoyed under a pastoral lease with the nature and extent of possession
enjoyed under private leases. Exceptions, qualifications and reser-
vations were found, eg, in the Mining Act 1898 (Q), s 3; the Mining
Act 1968 (Q), s 7; the Petroleum Act (Q) 1923, s 3, the Forestry Act
1959 (Q), s 5; the Sandalwood Act 1934 (Q), s 4; the Land Act 1897
(Q), ss 12(iii), 190,209,229,230,231; the Land Act 1910 (Q), ss 4,
6(4),146,200,205; the Land Act 1962 (Q), ss 5,6(4),250,295,312,
314, 375; and various Acts relating to minerals (19). The need to
create a statutory right to remove trespassers also demonstrates that
even where possession is concerned, pastoral cannot be equated with
pri vate leases. [He referred to the Land Act 1897, s 235; Land Act
1910, s 204; the Land Act 1962, s 373(1).] Those provisions have
several significant features: (a) they envisage recovery of possession
on behalf of the Crown; (b) even when a complaint is laid by a lessee
there is to be a hearing culminating in the issue of a warrant to take
possession on behalf of the Crown; (c) pastoral lessees are treated no
differently from licensees and prospective purchasers from the Crown
who would not be expected to have possession; (d) the creation of a
statutory power of summary ejectment suggests that without it the
potential complainants would not have a right to eject. It is implicit in
the statutory procedure that possession is recovered on behalf of the
Crown. This is inconsistent with the pastoralist's having pos-
session (20). Ambiguity concerning the critical concept of possession
demonstrates the misleading nature of analogy with common law
leases. On the respondents' case, traditional owners would be liable to
(15) cf O'Keefe v Malone [1903] AC 365 at 377; Glenwood Lumber Co v Phillips
[1904] AC 405 at 408. where it was held that the substance of the interest was
critical.
(16) O'Keefe v Williams (1910) II CLR 171 at 190-191.
(17) cf Mabo [No 2J (1992) 175 CLR 1 at 66.
(18) Re Waanyi (1995) 132 ALR 565 at 586.
(19) Re Waanyi (1995) 132 ALR 565 at 585.
(20) cf the 1962 Act, s 231; Glenwood Lumber Co v Phillips [1904] AC 405 at 408.
187 CLR 1] OF AUSTRALIA II
be removed as trespassers (21). The nature of the interest acquired by
the Crown on the grant of a pastoral lease does not assist the
respondents (22). When the Crown acquires full beneficial ownership
of land over which it had sovereignty, that acquisition is not
inconsistent with native title. If it were, even by the act of reserving
land for future use for public purposes, the Crown would extinguish
native title, for such a reservation involves an appropriation (23).
Hence while the grant of a pastoral lease involves the assertion by the
Crown of a right of ownership, that assertion is not necessarily
inconsistent with the continuation of native title. The continued
existence of native title rights does not depend on recognition by the
common law only but on Aboriginal law and custom. Common law
recognition of native title determines only whether rights will be
protected and enforced (24). The principles on which recognition
depends should accommodate the existence in fact of native title. Thus
when the common law, from necessity, denies or withdraws
recognition in circumstances where native title is still enjoyed or is
capable of being enjoyed again, denial or withdrawal should not be
permanent. The circumstances that required denial or withdrawal of
recognition may have ceased. If native title continues in fact, there
ought be no impediment to the resumption of recognition at common
law. The adoption of a rule which unnecessarily conflicts with reality
risks bringing the common law into disrepute. Thus, the withdrawal of
common law recognition of native title should not be equated with
extinguishment. The suspension of the operation of native title rights,
rather than permanent extinguishment, does not involve a novel
approach (25). [He referred to Mabo [No 2J (26); Delgamuukw v
British Columbia (27).] If a right of exclusive possession is to be
implied in pastoral leases, the existence of native title should be
recognised at common law until it is exercised: a native titleholder's
rights will be better than a trespasser's, and may be the equal of a
licensee's, but will not prevail over the lessee's. The grant of a lease
containing an implied right to exclude does not extinguish native title.
It creates only a theoretical conflict of rights, for the right to exclude
may never be exercised, eg, the Mitchellton leases where the
pastoralist never took possession and the land has remained freely
available tGJ the Wik and Thayorre Peoples. Contrary construction of
the Act makes an obscure past event, which may have had no practical
effect, determinative. A decision that these leases extinguished native
(21) cf Mabo [No 21 (1992) 175 CLR 1 at 66.
(22) Mabo INo 2] (1992) 175 CLR I at 68: BrisToW v CormiCfln (1878) 3 App Cas
641; McNeil, Common Law AboriRinal Title (1989). pp 165 et seq.
(23) cf Mabo [No 2] (1992) 175 CLR I at 68.
(24) Mabo [No 2] (1992) 175 CLR 1 at 60.
(25) cf Commonwealth Constitution, s 109.
(26) (1992) 175 CLR I at 58-60, 69.
(27) (1993) 104 DLR (4th) 470 at 525,532-533,535.
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title on grant does not determine the matter because there has been no
consideration of the consequences of that decision. (a) If native title
was extinguished by the grant, because the State and the pastoralists or
their predecessors may have invited, encouraged or otherwise,
expressly or tacitly, acquiesced in the continued exercise of native title
rights by the traditional occupants without asserting any qualification
on their consequential occupation, it may now be unconscionable for
them to rely upon that extinguishment to eject the traditional owners.
(b) At least it is not possible to determine that there is an exercisable
right to eject traditional occupants without investigation of the basis on
which they have remained in occupation and continued to exercise
native title rights. An equity may be raised which prevents exercise of
strict legal rights (28). If Parliament intended to extinguish native title,
and did so, the traditional occupants no longer had a right to remain.
Their previous occupation had been as of right. It must be assumed
that they were unaware of any change in their rights. Yet, the Wik
Peoples remained in their traditional country and it must be assumed
that their occupation was at the invitation or with the encouragement
or express or tacit acquiescence of the pastoralists and the State.
Notwithstanding the change in their entitlement they remained on the
land; continued to commit themselves, as a people, to traditional
customs and traditions; adapted themselves to co-operation with
pastoral pursuits; and lost the opportunity to commit their, and their
peoples', destiny elsewhere at the time. To permit the State and the
pastoralists to resile from their position would, unconscionably, turn
them into refugees from their own land. An equity can be created by
the holder of an interest under the Land Act (29). Hence the State and
the pastoralists may be precluded from relying on extinguishment.
That issue cannot be determined without trial. If native title was
extinguished by grant, if the Crown owes traditional owners a
fiduciary duty in relation to their land, it holds the reversion of the
pastoral leases on trust for them. A fiduciary duty arises as a
consequence of the unique vulnerability of native title and the Crown's
power to extinguish it (30); and a course of conduct pursued by the
Crown since colonisation to the present, by which, through enact-
ments, proclamations, and administrative arrangements it undertook to
recognise and protect the interests of the appellants and their
(28) Willmot v Barber (1880) 15 Ch D 96 at 105-106, cited Crabb v Arun District
Council [1976] I Ch 179 at 194-195. See also P1immer v Mayor of WellingIon
(1884) 9 App Cas 699; Wood v Browne [1984] 2 Qd R 593.
(29) Wood v Browne [1984] 2 Qd R 593.
(30) Mabo [No 2J (1992) 175 CLR I at 113,200-301,203; Guerin v The Queen [1984]
2 SCR 335 at 376-377; (1984) 13 DLR (4th) 321 at 334; see also United Stales v
Mitchell (1983) 103 S Ct 2961; R v Sparrow [1990] I SCR 1075 at 1108; (1990)
70 DLR (4th) 385 at 408; Apsassin v The Queen [1995] 4 SCR 344; (1995) 130
DLR (4th) 766.
predecessors (31). The Crown is constructive trustee (32). If the grant
of a pastoral lease extinguished native title and if the Crown's title is
thereby expanded and at the end of the term becomes plenum
dominum, it will hold the reversion on constructive trust for the
traditional owners so long as they are capable of maintaining their
connection with the land. The existence of such a duty bears on the
approach to construction of a statute said to extinguish native
title (33).
Act 1957 (the Comalco Act) provided for the making of an agreement
between Queensland and Comalco. The State's entry into the
Agreement and conduct pursuant to it were breaches of fiduciary
duties owed to the Wik Peoples. Comalco took the benefit of the
Agreement with knowledge of the breaches. In entering into the
Agreement, the State also breached the rules of procedural fairness.
The question before Drummond J assumed that Queensland breached
its obligations; that Comalco knowingly induced it to do so; and that
both Comalco and Queensland were unjustly enriched thereby at the
expense of the Wik Peoples. The sole question was whether the
Comalco Act precluded claims being brought for those things. The
wrongs, if found, are serious. The only defence would be that the Act
expressly or by necessary implication provided that they were to be
without remedy. They were not excused by the Act. In Commonwealth
Aluminium Corporation Ltd v Attorney-General (Q) (the Comalco
Case) (34), Dunn J considered the provision that the Agreement
should have the "force of law" to be for the specific limited purpose
of overriding legislative impediments to the making of the Agreement.
To permit what would otherwise be beyond power, ie, the grant of
certain benefits to Comalco contrary to the relevant legislation, does
not involve the ratification of wrongs to third parties not within
Parliament's contemplation. The Comalco Act should be construed not
to abrogate rights recognised by common law. Nothing in the Act or
its subject matter implies an intention to validate a wrong to a third
party by entry into the Agreement or to relieve the parties from
obligations to third parties. In this respect there is no difference
between the State and Comalco. Drummond 1's conclusion would
produce the result that the legislative sanctioning of the Agreement
would excuse Comalco from liability to a third party if its entry into
the Agreement and the advantages thus obtained had resulted in a
breach of fiduciary or contractual obligations to that third party, eg, a
(31) Mabo [No 2J (1992) 175 CLR I at 199-205, esp 201,203; cf Delgamuukw v
British Columbia (1992) 79 DLR (4th) 185 at 197-198; (1993) 104 DLR (4th) 470
at 523-524; R v Sparrow [1990] I SCR 1075 at 1108; (1990) 70 DLR (4th) 385
at 408.
(32) Mabo [No 2J (1992) 175 CLR I at 203-204.
(33) Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 524.
(34) [1976] Qd R 231 at 250-260.
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JOInt venturer. The breach of fiduciary or trust obligations was not
prospectively authorised or subsequently ratified or validated by the
statutory and contractual arrangements. Conflict of duties is not a
defence. The existence of a predominant public duty may require the
conclusion that there is no fiduciary duty as pleaded or that it is not a
breach of that duty to yield to the public duty. That question does not
arise. Corporation of the Director of Aboriginal and Islanders
Advancement v Peinkinna (35) ought not be followed. The observa-
tions about this point did not involve a separate or detailed analysis of
the issue and did not form part of the ratio. Alternatively, if making
the Agreement and granting the mining lease involved either
extinguishment or impairment of the appellants' native title, each act
required them to be accorded natural justice. The Premier was
authorised to execute the Agreement if he decided to do so being
satisfied that all relevant matters and interests had been taken into
account. Comalco could not have required him to sign and the Premier
could not have obliged Comalco to execute if it had chosen not to.
"Authorise" may mean "sanction, approve or countenance" (36). It
may also mean "permit". In Adelaide Corporation v Australasian
Performing Rights Association Ltd (37), "authorise" and "permit"
were treated as synonymous. [He also referred to Julius v Lord Bishop
of Oxford (38); Ex parte Johnson; Re Macmillan (39).] If Parliament
considered it essential that the Agreement be signed, appropriate
words could have been used. If the appellants' interests might be
affected by the Agreement or its performance, it follows from
acceptance that its execution involved the exercise of a discretion, not
legislative power, that the rules of procedural fairness applied (40).
The power to enter into the Agreement (with its attendant conse-
quences) might "destroy, defeat or prejudice" rights or interests of the
Wik Peoples, and as the Act did not indicate that Parliament intended
rules of natural justice to be suspended, claims about procedural
unfairness are not precluded. The constructive trust claims do not raise
additional issues in the context of preliminary questions 4 and 5. If the
fiduciary duty claims against Queensland are not precluded, the
constructive trustee claims against Comalco and Pechiney are not
precluded. Unjust enrichment claims do not raise additional issues.
The questions call for consideration only of the impact on the claims
of the statutory, contractual and leasing arrangements referred to in the
(35) (1978) 52 ALJR 286 at 291; 17 ALR 129 at 138.
(36) Winstone v Wurlitzer Automatic Phonograph Co of Aust Ply Ltd [1946] ALR 422
at 426; Falcon v Famous Players Film Co [1926] 2 KB 474 at 491; University oj
New South Wales v Moorhouse (1975) 133 CLR I at 12.
(37) (1928) 40 CLR 481 at 489, 497.
(38) (1880) 5 App Cas 214 at 230, 232-234, 235.
(39) (1946) 47 SR (NSW) 16 at 18. cf In re Earl of Wilton's Settled Estates [1907]
I Ch 50.
(40) Annetts v McCann (1990) 170 CLR 596 at 598-599.
187 CLR I] OF AUSTRALIA IS
pleadings. No inquiry into the passing of the Act is involved or
question of its validity. The mining lease does not have the force of
statute even to the extent that the Act gives special status to the
provisions of the Agreement. Statutory force is given only to the
Agreement.
The Pechiney Access Agreement was purportedly made on
4 December 1975 between the predecessor of ATSIC and Pechiney
and its associates. It predated both the Aurukun Associates Agreement
Act 1975 and the Aurukun Associates Agreement which it authorised.
It is not adverted to in the body of the Act but was scheduled to the
signed Associates Agreement as is contemplated in the form of that
Agreement set out in the Act. The Access Agreement was at the heart
of the issue in Peinkinna's Case (41). It does not have statutory
force (42). Its execution was an administrative act preceding the Act
and the Associates Agreement and resulting in the making of a
contract. The character of the act of executing the Access Agreement
and of that Agreement could not be altered by its becoming a schedule
to a further agreement the making of which had been authorised by an
Act passed after the Access Agreement. Hence the rules of natural
justice applied to the making and execution of the Access Agreement.
References to that Agreement in the Act should not be presumed to
have cured any defect in its making.
Sir Maurice Byers QC (with him J W Greenwood QC, G E Hiley
QC and P M McDermott), for the Thayorre People (appellants and
respondents to the appeal by the Wik People).
A. Whether native title was extinguished by the Mitchellton leases
is a question of fact. It is not resolved by a consideration of rights
vested in the lessees independent of their exercise (such as "the right
of exclusive possession"). A conventional common law title overrides
or extinguishes native title only if exercise of the rights given by the
conventional title excludes the possibility of a concurrent exercise of
the rights given by the native title. Once the proper test is formulated
as a question of fact the Thayorre are entitled to succeed. As the
Mitchellton lessees did not go into possession or engage in any
activity which interfered with native title, the Thayorre's native title
was never in fact extinguished. [He referred to Mann Crossman &
Paulin Ltd v Registrar of Land Registry (43).]
B. If A is wrong, and the conferring on a statutory lessee of a mere
right to exclude local aboriginals is sufficient, the question of whether
such a right has been conferred is not answered by extrapolation from
an analogous common law interest such as the typical common law
lease with its right of exclusive possession. The rights conferred on the
(41) (1978) 52 ALJR 286; 17 ALR 129.
(42) Peinkinna's Case (1978) 52 ALJR 286 at 291; 17 ALR 129 at 138.
(43) [1918] 1 Ch 202 at 206.
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lessee, including rights to exclude from the leased area, are found in
the statute under which a statutory lease is granted. No right to exclude
local aborigines in peaceable enjoyment of native title is found in the
Land Act 1910 or the Mitchellton leases. [He referred to s 6.] Given
the test of whether the Crown has evinced a plain and clear intention
to extinguish native title, it would be wrong to imply such a right. It
may be necessary to imply some rights of exclusion of strangers in aid
of the "pastoral purposes only" for which the leases were granted.
How extensive must they be? The only right of use granted by the
lease is for pastoral purposes. It is an exclusive use. A use that cannot
fairly be characterised either as being for a pastoral purpose or
necessarily incidental to such a purpose is therefore prohibited. The
central use of a pastoral lease is the depasturing or agisting of cattle.
Necessarily incidental are activities such as mustering, yarding,
branding or dipping. If natural water is not available it would be
necessary to dig dams. Given that it is possible for 300 natives and the
lessee's cattle to co-exist in the 535 square mile holding, it is not
necessary to imply rights of exclusion so extensive that they extend to
local aborigines in the peaceable enjoyment of their native title. If it is
not necessary to do so there is no implied term sufficiently wide to
help establish "a plain and clear intention" in the Executive to
extinguish native title. The Queensland Government manifested a clear
intention in the leases to reserve to itself the right to permit any person
to go onto the whole or any part of the Mitchellton holding at all times
and for any purpose. If, at any time during the currency of the
statutory lease, the Government had heard of an exclusion by a
Mitchellton lessee of any of the Thayorre People, it could have
authorised those excluded to go on to the whole or any part of the
holding for the purpose of exercising and enjoying their native title.
The extent of that Government right was known to the statutory
lessees. A statutory lease which preserved the Government's capacity
to protect the continuing exercise of Thayorre's native title cannot be
regarded as evidencing a clear intention to extinguish it, nor can such a
statutory lease contemplating a permitted entry of anyone for any
purpose at any time, be regarded as conferring a right of exclusive
possession good against the whole world on the statutory lessee. [He
also referred to the Land Act 1910, ss 200, 205.]
C. If A and B are wrong and it is appropriate to imply terms in the
statutory lease by extrapolating from the analogous common law
tenure, the equivalent tenure of the Mitchellton leases is not a common
law lease but a profit a prendre which is an interest conferred for a
particular purpose (44). The Mitchellton lease does not confer
(44) Baalman, "The Neglected Profit a Prendre", Australian Law Journal, vol 22
(1948) 302 at 304-305; Watts, "Timber Agreements", Australian Law Journal,
vol 19 (1945) 183; Blackstone, Commentaries (1766), Bk II, Ch 3, pp 32, 39;
White v Williams [19221 1 KB 727; Bronwell v Roberts (1886) 12 VLR 560 at
exclusive possession against the world but only such as will enable
enjoyment for the purpose for which it is created. The holder of a
profit may bring trespass (45). The right of exclusion to enable the
enjoyment of the Mitchellton holding for pastoral purposes only does
not extend to exclusion of local Aboriginals in the peaceable
possession of their native title (46). If the statutory lease is not a profit
aprendre but an interest sui generis the result is the same. The only
right of exclusion to be extrapolated or implied is one in defence of
the limited purpose.
D. If A, Band C are wrong and the Mitchellton leases did impliedly
confer a right of exclusive possession, it was not enough to extinguish
native title. A common law lessee's right of exclusive possession does
not authorise him to exclude other holders of proprietary rights over
the same land, eg, he cannot exclude the holders of profits aprendre.
The native title rights were proprietary. In 1915 and 1919 they were
being exercised and the common law of Australia recognised and
protected them. Native title rights may be proprietary and hereditable
(eg, profits aprendre) or merely personal terminating with death, eg,
usufructuary rights (47) or both. Rights may be usufructuary in some
families or individuals but proprietary when regarded in the collective
ownership of a clan or a language group. Anthropologists have
demonstrated the complexity of native title rights and how different
clans (within a wider aboriginal language group) may have similar
rights and duties over the same country and how some clans have
primary responsibility for the country and others have a lesser
responsibility. Families and individuals also enjoy a complex set of
rights and duties within the clan structure. The co-existence in respect
of the same land of native title and of a conventional common law
title, eg, a fee simple or a lease, does not mean that the native title has
been extinguished in whole or in part. Where there is a right of access
for ceremonial purposes to a sacred site upon land to which a fee
simple has been granted, both native title and conventional title derive
(44) cont
564; Crosby v Wadsworth (1805) 6 East 602 at 610 [102 ER 1419 at 14231;
Bayview Properties Pry Ltd v Attorney-General (Viet) [19601 VR 214; Australian
Blue Metal Ltd v Hughes [1962) NSWR 904 at 916-917; Ex parte Henry; Re
Commissioner of Stamp Duties (NSW) [1963) NSWR 1079 at 1084. [He also
referred to O'Keefe v Malone [1903) AC 365 at 377; Reid v Moreland Timber Co
Pry Ltd (1945) 73 CLR I; Radaich v Smith (1959) 101 CLR 209 at 222;
Glenwood Lumber Co v Phillips [19041 AC 405; McPherson v Temiskaming
Lumber Co [1913) AC 145; Sinclair v Judge [1930) Q St R 220; and Street v
Mountford [1985) AC 809 at 827.)
(45) Fitzgerald v Firbank [1897) 2 Ch 96 at 101; Crosby v Wadsworth (1805) 6 East
602 at 606-609, 610 [102 ER 1419 esp at 1421-1422, 1423).
(46) Holford v Bailey (1846) 13 QB 426 [116 ER 1325).
(47) Mason v Tritton (1993) 6 BPC (NSW) [97492); Crocombe, Land Tenure in Cook
Islands (1964), p 48; Mabo [No 2J (1992) 175 CLR I at 51-52, 6J, 88-89, 125,
130, 194-195; Mason v Tritton (1994) 34 NSWLR 572 at 581-582.
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equal validity from the common law. Nor is native title extinguished
by an accidental characteristic such as exclusive possession of a
conventional title, if consistent with enjoyment of rights given by the
native title. Assuming that a lease enabling the lessee to use land for
only a nominated purpose, such as pasturage, confers a right of
exclusive possession, that right feeds the use of the land for that
purpose alone. The Mitchellton lessees' rights of exclusive possession
were not sufficient to prevent the exercise of the Thayorre People's
Aboriginal rights.
E. There was no legal requirement for a reversion expectant to
support the Mitchellton leases and none was created. A private
individual who carves out an estate (whether in a term of years or any
other interest in land) must do so out of a larger estate. It is said that
the larger must be sufficient to support the creation of a lesser. These
limitations on the power of a private individual do not apply to the
sovereign power exercising sovereignty. The Crown's radical title was
an aspect of its sovereignty and was always sufficient to create an
estate in a term of years without requiring the creation of a reversion
expectant. The Land Act was later a sufficient source of the same
power. A reversion expectant is implied by law when the holder of a
freehold estate grants only part of that estate. Blackstone,
Commentaries (48) assumed that a fee simple has been created. The
Crown did not have or need a freehold estate when the Mitchellton
leases were created (49). Even a common law lease is a chattel estate
and requires no freehold to support it. A fortiori the creature of statute.
Unless the Crown enjoyed freehold when the Mitchellton lease was
created there can be no reversion implied by law. When a statutory
lease expires the land reverts to its previous legal status - Crown land
not currently under lease. The Crown has the capacity to grant
interests in that land and estates in those interests. At no time did it
need a beneficial interest to create an interest or estate in that interest.
The creation of an estate which has subsequently expired does not alter
that position.
F. If E is wrong and the creation of an estate in favour of the
Mitchellton lessees would have required the creation of a reversion in
favour of the Crown (and had that effect), those events did not occur
because the lessees never went into possession and had a mere
interesse termini (50). The estate in the reversion expectant in the
Crown could not occur because no freehold was created. There can be
no freehold without seisin given and taken. It was never taken.
G. If E and F are wrong and the creation of the Mitchellton leases in
1915 and 1919 conferred a beneficial interest on the Crown when the
leases were forfeited and surrendered in 1918 and 1921, that interest
(48) (1765), Bk II, Ch II, P 175, par III.
(49) cfBlackslone, Commentaries (1765), Bk II, Ch II, pp 165-166.
(50) Gillard v Cheshire Lines Committee (1884) 32 WR 943.
did not extinguish native title. The Crown owed a fiduciary duty to the
Thayorre people then which obliged it to hold its interest in trust at
least so long as the land remained unused by the Crown and
unallocated by it for some inconsistent purpose. If necessary a
constructive trust should be declared, but in any event native title
should not be regarded as extinguished. Mere inaction when the
Crown enjoys full beneficial ownership is not an act of expropriation
extinguishing native title even in the absence of a fiduciary duty.
Given a fiduciary duty, an intention to perform it should be attributed
to the Crown and mere inaction should not be regarded as sufficient to
extinguish. [He referred to Mabo [No 2J (51); Cherokee Nation v
Georgia (52); Worcester v Georgia (53) (cf Fletcher v Peck (54);
Johnson & Graham's Lessee v McIntosh (55; Lone Wolf v
Hitchcock (56); Cramer v United States (57); United States v Sioux
Nation (58); United States v Kagama (59).] The factors that imposed a
fiduciary duty on the Imperial Crown in dealings with the holders of
native title in its North American possessions should impose a similar
duty in dealings with holders of native title in its Australian
possessions. Such a duty is founded on the arrogation by the Crown of
a pre-emptive right. In addition it has arisen from (a) the imposition by
law on the Crown at the time of annexation and thereafter of a duty to
acknowledge and respect the continuing existence of any Aboriginal
title; (b) the imposition by law of a corresponding obligation or
disability on Aboriginal title holders preventing them from alienating
their title except to the Crown; (c) the existence at all material times of
the Thayorre's Aboriginal title; (d) the Crown's power to extinguish or
impair that title, including power to evict the Thayorre from their
dwellings; power to eject them and deprive them of the capacity to
take native food and water lawfully from their own lands; power to
prevent the enjoyment of their immovable possessions; and the power
to prevent the exercise of those aspects of their religion and
performance of religious duties necessarily associated with particular
tracts of land; (e) the vulnerable position of the Thayorre relative to
the Crown which the Crown created when traditional lands were
annexed and made subject to a series of present and future disabilities
arising from the alien culture polity and legal system which it
imposed; (f) the acknowledgment of Queen Victoria of such duties
towards the Aboriginal inhabitants of Australia when establishing the
(51) (1992) 175 CLR I at 200-203.
(52) (1831) 5 Peters I at 17.
(53) (1832) 6 Peters 515.
(54) (1810) 6 Cranch 87 at 142-143.
(55) (1823) 8 Wheat 542 at 596, 603.
(56) (1903) 187 US 553 at 565.
(57) (1923) 261 US 219 at 230.
(58) (1980) 448 US 371 at 408.
(59) (1885) 118 US 228 at 230.
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new colonies of South Australia (1836) and Queensland (1859),
specifically in the Letters Patent constituting the Colony of South
Australia and cl xxiii of the 1859 Instructions to the Governor of
Queensland; (g) the recognition and reaffirmation of such duties by the
Queensland legislature through the imposition of statutory sanctions on
the general community with the purpose and intent of facilitating the
Crown's exercise of some aspects of its fiduciary and protective
duties; specifically the Native Labourers Protection Act 1884 and the
Aboriginals Protection and Restriction of the Sale of Opium Acts
1897-1934; (h) the Crown's obligation as parens partriae to rule
subject peoples in accordance with their laws and customs; (i) the
presumption that upon annexation of territory the Crown assumed
fiduciary or like duties and obligations to respect the rights of
indigenous peoples and the presumption that such duties continued;
(j) the undertaking or assumption by the Crown of powers and
responsibilities for the protection of the Thayorre and the exercise by
the Crown of control over and regulation of them; (k) the course of
dealings by the Crown in relation to the claimed lands.
H. If E, F and G are wrong and native title was extinguished by the
granting of the Mitchellton leases, it revived because common law
would recognise native title rights anew. In 1921 the Thayorre had
been in uninterrupted possession for over sixty years. The Nullum
Tempus Act 1769 (9 Geo 3 c 16) still applied in Queensland and sixty
years possession was good against the Crown (60). [He also referred to
Blackstone, Commentaries (61 ).]
S L Doyle SC, for the respondent ATSIC. ATSIC holds a pastoral
lease, but for the benefit of the traditional owners of the land. It does
not seek to exercise any right as lessee to defeat that interest. It is also
concerned to ensure that their interests as traditional owners are
recognised and protected when the lease ends. Its submissions are
directed only to Question lB.
Native title is recognised by Australian common law as a burden on
radical title. It should not be equated with common law real property
concepts. If the Aboriginal people claiming native title display a
sufficient connection with the land over which it is claimed, its precise
nature and incidents are determined according to their traditional laws
and customs. It is not an essential charaCteristic of native title that the
Aboriginal people claiming it be in continuous or exclusive use or
occupation of the land. Substantial absence may, according to
traditional laws and customs, sever a particular people's connection
but that is a question of fact. Native title may be defeated
(extinguished) by an unqualified grant by the Crown of an estate or
interest which is inconsistent with its continued enjoyment. The Crown
(60) Attorney-General (NSW) v Love [1898] AC 629.
(61) (1765), Bk II, Ch 3, pp 30-31.
is not lightly to be imputed with an intention to extinguish native title.
In the absence of express statutory provision, it will be taken to have
done so only if, by its conduct, it has demonstrated its intention in
clear and plain tenns. In the case of an unqualified grant of an estate
or interest in land over which native title is claimed, a clear and plain
intention will not be found unless there is actual conflict between the
rights or interests conferred by the grant and the nature and incidents
of the fonn of native title claimed, and then only to the extent of
conflict. The grant of a pastoral lease (even conferring a right of
exclusive possession) does not extinguish native title. If by the
traditional laws and customs of particular Aboriginal people the
necessary connection may survive suspension during the tenn of the
lease, the grant of the lease does not demonstrate a clear and plain
intention to extinguish that fonn of native title. Native title rights may
subsist at common law after the lease.
If a pastoral lease confers exclusive possession which involves a
right to exclude native title holders and a lessee exercises the right or
it is immaterial whether he does so, it does not follow that in granting
pastoral leases under the Land Acts the Crown demonstrated a clear
and plain intention to extinguish a particular fonn of native title. The
question was not answered by Mabo [No 2] (62). The grant of a
pastoral lease (if it confers exclusive possession) is not necessarily
inconsistent with the continuation of native title, even if continuous
occupation and use by the particular Aboriginal people is required by
their traditional laws and customs as an essential element of
connection with the land (63). To detennine whether a grant is
inconsistent with continued enjoyment of native title, the nature and
incidents of that title must be identified (64). A finding of inconsist-
ency involves consideration of the ability of conflicting interests to
stand together. If the native title claimed is of a kind which, under the
traditional laws and customs, could survive a substantial interruption
to access there is no necessary inconsistency with a grant of a limited
interest. The common law will recognise native title involving interests
otherwise unknown to law (65). The connection between a particular
people and traditional lands need not be exclusive or uninterrup-
ted (66). It is sufficient that they have a connection of such
significance to "establish a locally recognised special relationship".
(62) (1992) 175 CLR 1.
(63) Mabo [No 2] (1992) 175 CLR 1 at 57-58. 188-190; Hamlet of Baker Lake v
Minister of Indian A.ffairs and Northern Development [1980] 1 FC 518 at 559-
560; (1979) 107 DLR (3d) 513 at 543-544.
(64) Canadian Pacific Ltd v Paul [1988] 2 SCR 654 at 677; (1988) 53 DLR (4th) 487
504.
(65) Mabo [No 2] (1992) 175 CLR I at 49-50, 85-86; Amodu Tijani v Secretary.
Southern Nigeria [1921] 2 AC 399 at 403; Adeyinka Oyekan v Musendiku Adele
[1957] 1 WLR 876 at 880; [1957] 2 All ER 785 at 788.
(66) Mabo [No 2] (1992) 175 CLR I at 86,188-190.
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While continuous occupation and use may often be seen (according to
the traditional laws and customs of particular people) as an essential
element of a particular form of native title, it ought not to be so
assumed without proof or assumed that conferral (and even exercise)
of a right of exclusive possession pursuant to a long term pastoral
lease severs traditional ties. That conclusion can only be reached after
an examination of facts. There is no reason why common law ought
not to recognise native title of a kind capable of surviving prolonged
absence from occupation or use. Common law permits the creation of
proprietary rights the exercise of which is deferred. It would be
surprising if it refused to recognise rights under customary law simply
because their continued enjoyment is deferred. If a pastoral lease
granted under the Land Acts confers a right of excluding native
owners, the Crown's intention in making the grant must be considered.
It is not relevant to adduce evidence of the Governor-in-Council's state
of mind on the grant of a lease (67). Intention is gathered from
conduct. Here the Crown's actions may be viewed in (at least) three
ways: as indicating an intention (a) to override existing native title for
the period of the lease, while allowing for the future exercise of the
rights created, provided the native title is capable of surviving a period
of suspension; (b) that native title be extinguished upon the lessee's
exercise of the right of exclusive possession; and (c) that native title be
extinguished absolutely. How conduct should be viewed depends on
the practical conflict between rights conferred by the grant and the
continued enjoyment of the native title claimed (68). In imputing
intention in granting an estate or interest in land the subject of native
title, a restrictive approach is appropriate (69). Clear and plain
language is required and the Crown's acts ought to be taken to intend
as little interference with native title rights as consistent with the
general object and language of the grant (70). The principles apply to
the construction of an authorising statute. To hold that the Crown
should be considered to have extinguished native title would impute an
intention to do something which was not necessary to confer exclusive
possession during the term. That does not involve the proposition that
native title, once extinguished, can be revived. That is not raised by
the questions. Revival is not an issue because there is no inconsistency
between native title and pastoral leases and hence no case for
extinguishment. An alternative basis for contending that the grant of a
pastoral lease under the Acts extinguishes native title is that on grant
the Crown appropriated full beneficial ownership. The assumption that
(67) Mabo [No 2J (1992) 175 CLR I at 68.
(68) Mabo [No 2J (1992) 175 CLR I at 67-68; Mason v Tritton (1994) 34 NSWLR
572 at 591.
(69) Mabo [No 2J (1992) 175 CLR I atM.
(70) De/gamuukw v British Columbia (1993) 104 DLR (4th) 470 at 529; Mabo [No 2J
(1992) 175 CLR I at 110-111, 196.
the interest required by the Crown to support the doctrine of tenure is
nothing short of full beneficial ownership was rejected in Mabo
[No 2J (71). Radical title supports the doctrine of tenure and provides
power to deal with land over which the Crown has sovereignty. The
act of grant is not one of ownership but of sovereignty. If so, the
Crown must not be taken to appropriate full beneficial ownership on
the grant of a limited interest. It is inconsistent with Mabo [No 2J (72)
to require full beneficial ownership always to reside somewhere. The
imputation of an intention that native title rights should be interfered
with to the least extent possible involves the Crown's appropriating
only a beneficial interest necessary to support the grant. Limited
estates or interests can be granted with no adverse impact on native
title (73). North American cases are distinguishable. Buttz v Northern
Pacific Railroad (74) and Missouri, Kansas and Texas Railway Co v
Roberts (75) concerned grants in fee; likewise observations in Hamlet
of Baker Lake v Minister of Indian Affairs and Northern Develop-
ment (76). A grant in fee, involving full beneficial ownership, leaves
no scope for native title. United States v Atlantic Richfield Co (77)
merely recognises that native title may be extinguished by inconsistent
grant. The acceptance of contrary submissions would impute to the
Crown, when it purports to grant an interest in land, an intention to
appropriate the entire beneficial ownership. That would render the
accepted test of extinguishment, which focuses on the existence of
conflicting interests, devoid of practical content. The grant of a right of
way over Crown land over which native title extends may in no
practical sense be inconsistent with the continued enjoyment of native
title, yet if to grant that right the Crown had to appropriate full
beneficial ownership extinguishment would result (78). It is said that
on the grant of a lease the Crown acquires the reversion expectant
because it is assumed that the conferring of exclusive possession
extinguishes native title. If that occurs the Crown takes absolute
beneficial title because there is no other proprietor (79). If the grant of
a pastoral lease under the Acts does not necessarily have that effect,
there is no need to impute an intention to acquire beneficial interests
greater than the Crown purports to grant. Hence the acquisition of a
reversion expectant on the expiry of the term of a pastoral lease
depends on the conclusion that its terms extinguish native title.
(71) (1992) 175 CLR I at 46-49.
(72) (1992) 175 CLR I.
(73) Mabo [No 2] (1992) 175CLR I at 117.
(74) (1886) 119 US 55.
(75) (1894) 152 US 114.
(76) [1980] I FC 518 at 565; (1979) 107 DLR (3d) 513 at 548-549.
(77) (1977) 435 F Supp 1009.
(78) cf Canadian Pacific Ltd v Paul [1988] 2 SCR 654 at 678; (1988) 53 DLR (4th)
487 at 505.
(79) Mabo [No 2] (1992) 175 CLR I at 49, 60.
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An alternative basis for contending that a pastoral lease does not
ipso facto extinguish native title right lies in imputing to the Crown an
intention that native title should be extinguished only when the rights
conferred are exercised inconsistently with its continued enjoyment.
Until something occurs to prevent the continued occupation and use of
the land and sever the native owners' ties there is no need for native
title to be extinguished (80). It is no answer that native title rights can
be surrendered only to the Crown (81). The lessee's right to bring
about practical conflict is conferred by the grant, not obtained directly
from the native owners, and so does not infringe this rule. The Crown
may confer a right which, only if exercised, is inconsistent with native
title rights and so extinguishes them. Extinguishment comes from
actual not potential inconsistency (82). A right of exclusive possession
does not extinguish native title until its exercise realises inconsistency
in rights.
To this point it has been assumed that the pastoral leases confer
rights of exclusive possession. To say that the Acts provide for a lease
and that at common law a lease confers such rights begs the question
of from whom possession is exclusive. A statute which may authorise
extinguishment of native title should be construed as doing so only
where necessary for practical efficacy (83). Likewise the act of
granting the lease is to be similarly viewed. Nothing before the Court
indicates the extent to which the continued enjoyment of native title
rights might interfere with the objects of a pastoral lease. It is not
necessary to construe pastoral leases as creating a right to exclude the
Aboriginals. In granting the lease, the Crown has not provided for
compensation or relocation of displaced Aboriginals. In the absence of
such provision there can be no plain intention to exclude traditional
owners. Only the exercise of the right to exclude (or to otherwise use
the land in a manner inconsistent with that continuous occupation and
use) is inimical to and extinguishes native title. The Holroyd areas
lease does not evince an intention by the Crown to confer an
unqualified right of exclusive possession such as would enable the
lessee to exclude native title holders.
[Submissions made on behalf of intervenors which repeat the
arguments presented by parties have been omitted.]
G M G Mclntyre, for the respondent the Napranum Aboriginal
Council and for the Kimberley Land Council, the Nanga-Ngoona
Moora-Joonga Association Aboriginal Corporation, the Western
Desert Punturkurnuparna Aboriginal Corporation and the
Ngaanyatjarra Land Council, intervening. The history of Imperial and
(80) cf Mabo [No 2J (1992) 175 CLR I at 67-68; Mason v Trilllm (1994) 34 NSWLR
572 at 591.
(81) R v Symonds [1847] NZPCC 387.
(82) Mabo [No 2J (1992) 175 CLR I at 68.
(83) cf Mabo [No 2J (1992) 175 CLR 1 at 66.
Colonial legislation relating to pastoral leases in Western Australia
differs significantly from that in New South Wales and Queensland:
(a) the Imperial Crown by Order in Council under legislative authority
ordered that, in the Colony of Western Australia, a pastoral lease was
not to prevent Aboriginal entry and customary subsistence on the land,
whereas the Crown used general words of empowerment in the Order
in Council directing the Colonial Governor of New South Wales as to
the limitations on pastoral leases; (b) in Western Australia the
reservation in favour of Aboriginals was from 1850 onwards contained
in regulations of the Colonial Government and in State legislation
(except for a short period) whereas in New South Wales and
Queensland there was no such legislative provision; (c) Western
Australian pastoral leases since 1864 have been subject to a condition
that they are void in the case of specified defaults but no such
condition has applied in Queensland or New South Wales leases. The
fact that pastoral leases are rendered void for default illustrates the
limited nature of the rights granted and supports the argument that
native title is not extinguished by a Crown grant of a lease and that a
"reversion expectant" in the form of a beneficial interest of the
Crown in the land inconsistent with native title is not to be regarded as
springing into existence upon the creation or termination of a Crown
lease. [He also referred to the Land Act 1933 (WA), s 105; the Mining
Act 1978 (WA), ss 8 "private land", 27-39; the Petroleum Act 1967
(WA), ss 5 "private land", 24(1); and the Mining Act 1978 (WA),
s 9.]
P J Favell, for the respondent Pormpuraaw Aboriginal Council, did
not address the Court.
J L Sher QC (with him B A Keon-Cohen), for the Northern Land
Council and the Central Land Council, intervening by leave. It cannot
be inferred that the Crown intended to extinguish something it did not
know existed (84). The principles applicable to extinguishment of
native title directly by statute should be the same as those applicable to
executive extinguishment pursuant to statute. Both steps are involved
in the question whether native title has been extinguished by pastoral
leases. There are common law principles by which the impact of
Crown conduct upon proprietary rights may be determined. These are
non-expropriation, non-derogation and analogous matters.
Non-expropriation: An intent by statute to expropriate rights in land
without compensation cannot be imputed unless expressed
unequivocally (85). Similar principles apply to the Executive (86).
(84) Native Title Act Case (1995) 183 CLR 373 at 431-433.
(85) The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563; Mabo [No 1]
(1988) 166 CLR 186 at 213.
(86) Attorney-General v De Keyser's Royal Hotel [1920] AC 508 at 569; Clunies Ross
v The Commonwealth (1984) 155 CLR 193 at 201.
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Non-derogation: The Crown cannot by subsequent grant derogate
from its grant. The rule is not confined to interests derived from prior
grants. Common law protection extends to existing rights and interests
whatever their source (87).
Analogous matters: Adverse possessory rights (88) and customary
rights (89) are protected. Other protected rights are common law
public fishing rights (90) and prescripti ve rights (91). [He also referred
to Exeter Corporation v Warren (92) and Nightingale v Bridges (93).]
If the Crown has granted a leasehold interest it may only grant a new
interest subject to it. Scire facias is available to a person injured by an
adverse grant (94).
Except for a limited period in conquered and ceded colonies,
acquisition of sovereignty of new lands by the Imperial Crown did not
carry power to create and extinguish private rights and interests in land
without acquiring them or obtaining voluntary surrender. That rule
does not apply in settled colonies where the introduction of common
law carries a presumption that in the absence of explicit statutory
power, a subject's property cannot be taken by Executive action even
in time of war (except in battle) without the payment of compen-
sation (95). Other lawful means of removing interests are by the
exercise of a statutory power of compulsory acquisition and
purchase (96), voluntary surrender of the interest, and legislation.
Legislati ve intention to take a subject's property without compensation
should not be imputed unless expressed in unequivocal terms (97). It is
inconsistent with the principles of non-discrimination, non-derogation
and non-expropriation to treat a Lands Act which confers power to
create interests by grant as embodying a clear and plain intent to
acquire existing interests without compensation. Where Executive act
(87) Holdsworth, History of English Law, vol 10 (1938), p 360; Nichols v Nichols
(1677) 2 Plow 477 at 487 [75 ER 711 at 725-727); Field v Boethsby (1657) I Sid
137 at 139 [82 ER 1298 at 1299). .
(88) Perry v Clissold (1906) 4 CLR 374; [1907) AC 73; Colonial Sugar Refining Co
Ltd v Melbourne Harbour Trust Commissioners (1927) 38 CLR 547 at 551, 559.
561; [1927) AC 343 at 350, 359, 361.
(89) Attorney-General (Isle of Man) v Mylechreest (1879) 4 App Cas 294 at 299, 302.
(90) Bristow v Cormican (1878) 3 App Cas 641 at 662-663.
(91) In re Islington Market Bill (1835) 3 CI & F 513 [6 ER 1530).
(92) (l844)5QB773 [114ER 1441).
(93) (1689) I Show 135 [89 ER 496).
(94) R v Eastern Archipelago Co (1853) 22 UQB (NS) 196 at 213; (1853) 23 UQB
(NS) 82 at 88-89, 106; R v Hughes (1866) LR I PC 81 at 87-88; but see Mabo
INo 2J (1992) 175 CLR I at 63-64, 193-195.
(95) Burmah Oil Ltd v Lord Advocate [1965) AC 75.
(96) R v Symonds [1847) NZPCC 387 at 390, 393; Johnson v M'lntosh (1823)
8 Wheat 543 at 574, 580, 587; Tito v Waddell [No 2J [1977)1 Ch 106 at 132-135;
Administration of Papua & New Guinea v Daera Guba (1973) 130 CLR 353
at 397.
(97) Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919) AC 744
at 752; Mabo INo 2J (1992) 175 CLR I at 195-196.
is relied on it must be clearly established that the legislature intended
to clothe the Executive with power to extinguish native title (98). To
bring the Executive act within legislative intention evidence is required
that the legislature not only intended it to have the necessary power
but that its use to extinguish native title was at least within its
contemplation. If Executive intention alone were sufficient, native title
might be extinguished by the act of an official in defiance of expressed
intention of the legislature. The intention required when the legislature
enacts laws directly conferring interests in land on subjects, or directly
acquiring such interests, is also required when the legislature confers
powers which may be exercised to grant interest to subjects or to
acquire or diminish the rights of other subjects in the same land. The
intention is found by reference to (a) the non-discrimination principle;
(b) the non-expropriation principle; (c) the non-derogation principle;
(d) the protective doctrine of non-alienability of native title interests
other than to the Crown (the right of pre-emption); (e) the fiduciary
duty owed by the Crown to indigenous subjects; (f) the likely effect
on the existing native title rights and interests of the exercise of the
powers so conferred; (g) the effect of the empowering legislation;
(h) the effect of the exercise of the powers conferred; (i) express
statements of relevant Imperial, Colonial, Commonwealth or State
authorities as to the intention of the Crown in conferring the power to
grant particular kinds of interest in the face of aboriginal occupation of
the Continent. [He referred to Calder v Attorney-General (British
Columbia) (99); Hamlet of Baker Lake v Minister of Indian Affairs and
Northern Development (100); R v Sparrow (101); Te Weehi v Regional
Fisheries Officer (102); and Nireaha Tamaki v Baker (103) cf Wi
Parata v Bishop of Wellington (104).] To determine the effect of the
grant of a pastoral lease on native title requires (a) analysis of the
content of the native title rights and interests; (b) analysis of the
legislative or executive power with respect to the land, especially those
aspects said to impact upon native title; (c) examination of the effect
of the exercise of the two sets of rights on each other, to see whether
wholly or partly they may co-exist, be suspended, be incapable of ever
being further enjoyed, or as a matter of fact survive though access or
the exercise of certain rights is temporarily precluded. The attribution
of labels to interests granted by the Crown is unhelpful as is the notion
of exclusivity when discussing leases. That notion is elusive and often
begs the question. Leases are limited in time. Hence their effect on
native title is necessarily so limited, assuming that relevant indigenous
(98) Mabo [No 2J (1992) 175 CLR I at 196.
(99) [1973] SCR 313; (1973) 34 DLR (3d) 145.
(I (0) [1980] I FC 518 at 569; (1979) 107 DLR (3d) 513 at 552.
(101) [1990] I SCR 1075; (1990) 70 DLR (4th) 385.
(102) [1986] I NZLR 680.
(103) [1901] AC 561 at 578.
(104) (1877) 3 NZ (Jur) NS 72 at 77.
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laws and customs in relation to the land continue until "washed
away" by a combination of effluxion of time and exclusion from the
land. The fact that a lease confers exclusive possession of the
leasehold interest does not necessarily involve the total exclusion of
the exercise of other rights, including native title rights and interests.
The lessee's rights should be distinguished from the ability of others to
enjoy rights in the land at the same time. Here exclusive possession
means that no other person enjoys a leasehold estate, with its
concomitant rights. Others may enjoy other rights, eg, an easement
holder, a mortgagee, the holder of an exploration or mining tenement
and a caveator. Holders of native title rights and interests may
continue to enjoy interests which do not interfere with the exercise of
the grantee's rights. The grantee's rights prevail over those aspects of
native title which cannot be exercised without access or possession, eg,
hunting and camping. It is not clear that the mere grant of a lease, or
of an estate described as a lease, evinces an unequivocal intention to
extinguish. Exclusive possession is useful in determining whether
granted rights confer a leasehold interest. It does not follow that
because the word lease is used, rights granted necessarily include
exclusive possession. It is consistent with the grant of a statutory lease
that the legislature intended rights of native title holders inconsistent
with granted rights to be suspended or limited for the term. Doubts
should be resolved in favour of native title holders. If the lease or
other interest is only partially inconsistent and at least some native title
rights continue throughout its term, the fate of the other native title
rights must be considered. They often revive because the circum-
stances provide no basis for an evinced intention to extinguish
permanently. There is no presumption adverse to native title from the
arising of a notional reversion on the grant of a Crown lease. Radical
title does not have an additional attribute on the expiry or forfeiture of
a lease by having been interrupted by or made subject to a Crown
lease. The Crown will get back what it had before. It is inconsistent
with the concept of radical title (105) to treat a reversion as coming
into existence through the grant of a Crown lease. Reversion is apt to
describe the interest a private lessor with a fee simple retains, where a
lesser estate is carved out of the fee. Such terminology is inappropriate
to a Crown lease. Radical title is not equivalent to fee simple. Radical
title ceases to be such by reason of the grant of a Crown lease. At the
end of the term, if no other grant is made, the land reverts to being
unalienated Crown land, subject to the powers of the Crown and thus
to the radical title (106). The feudal fiction that the Crown is never out
of possession is rebutted by the rejection of terra nullius as an
applicable principle and the fact of prior and continuing Aboriginal
occupation. That fiction does not apply to the various Crowns in the
(105) Mabo [No 2J (1992) 175 CLR I at 46-48.
(106) cf Mabo [No 2J (1992) 175 CLR I at 68.
Federation (107). Thus, no possession is held by the Crown before the
grant of a Crown lease and none reverts to it. It is not in accordance
with principle to characterise the Crown's interest as having been
altered by the grant of a lease and expanding from mere radical title,
or as having become, on the expiry of the term, plenum dominium.
Such an approach treats land the subject of a grant of a Crown lease as
equivalent to the land which the Crown has appropriated for its own
use. Hence where the Crown did not have plenary title before a lease,
it has no greater title on its expiry than the radical title subject to
native title it held before the grant. The concept of seisin, or freehold
possession, is distinct from leasehold possession. A person can be
seised of a freehold estate while another is in leasehold pos-
session (108). On the expiration of a Crown lease, all the lessee holds
that could vest in the Crown is the leasehold possession, not seisin or
freehold estate because the Crown did not originally have freehold
possession. English law looks to the fact of possession to determine
whether interests in land exist. Possessory titles may be established
against a fee simple owner who is the original grantee (109). TiLle by
adverse possession is founded on long uninterrupted possession. The
person in possession acquires good title against the world. Adverse
possession operates against lessees who abandon possession or do not
take it up in favour of persons who take possession of land leased to
another who hold uninterrupted possession for the limitation period
without the assertion of possession by the leaseholder. There is no
proper basis on which the law can discriminate against native title
holders who hold interests adversely to a leaseholder who has not
taken possession compared with non-indigenous persons who are
adverse possessors. The facts must be explored. The concept of
Aboriginal interests founded on mere possession expounded by
Toohey J in Mabo [No 2J (110) is consistent with these doc-
trines (III). The continued exercise of Aboriginal rights is an
assertion of their existence. The question of acquisition or diminution
arises only when the leaseholder exercises rights which conflict with
their continued exercise. The duration and degree of conflict must then
be examined.
In the Northern Territory, from about 1863, except 1912-1924, until
recently, pastoral leases contained a reservation c12l!se by force of
statutes and regulations. Territory leases issued under the Crown
Lands Ordinance 1912 (North Australia), s 23 are to be "for pastoral
purposes", not "for pastoral purposes only", but s 16(e) states a
lessee may "use the land only for the purposes for which it is leased".
(107) The Commonwealth v Anderson (1960) 105 CLR 303 at 318.
(108) McNeil, Common Law AboriRinal Title (1989), pp 8-9, 38, 68-70.
(109) Bree v Scoll (1904) 29 VLR 692 at 711-714.
(110) (1992) 175 CLR I at 206-214.
(III) McNeil, Common Law Aboriginal Title (1989), Ch 7.
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The Pastoral Land Act 1992 (NT), s 3 defines "pastoral lease" as "a
lease granted over Crown land for pastoral purposes" and also
extensively defines' 'pastoral purposes". Acquisition of property must
be on just terms: Northern Territory (Self-Government) Act 1978
(Cth), s 50. There is no such limit on the powers of the Queensland
Parliament, save for the impact of ss 9 and 10 of the Racial
Discrimination Act 1975 (Cth). Under the 1912 Ordinance, s 35(b),
limited compensation was provided for improvements or for de-
preciation in value due to the resumption. The Pastoral Land Act
1992, s 4(c) includes an object "to recognise the right of Aborigines to
follow traditional pursuits on pastoral land". See also s 38(1 )(n), (2)-
(6). The Crown Lands Ordinance 1912, ss 16, 17, 18 provided for the
grant of pastoral leases with various stipulated reservations; see also
ss 27-37. The Pastoral Land Act 1992, s 84(1 )(a), (b) enables the
Minister to license a person to enter a pastoral lease area to take timber
or wood, stone, shell, sand, etc. Under the Territory Development
Ordinance 1978 and the Northern Territory Land Corporation Act
1986, the Northern Territory Development Land Corporation is
established to acquire, hold and dispose of land (1986 Act, sIS) and is
deemed "not an authority or instrumentality of the Crown" (1986 Act,
s 6(1 (112). The Administrator may vest all of the Territory's
interests in land in the Corporation (1986 Act, s 16). Under the
Aboriginal Land Rights (Northern Territory) Act 1976 Aboriginal
Land Commissioners have repeatedly found that traditional ownership
under that Act (which equates to native title) exists as a matter of fact
over many areas of land notwithstanding long periods of pastoral
tenure and other activity. No such findings have been made in
Queensland. By the Land Act 19 IO (Q), s 6(2) and the Land Act 1962
(Q), ss 6(2), 160(3), a pastoral lease vests an interest in the land in the
lessee upon grant. It is arguable from the Pastoral Land Act 1992,
s 34(1), (2) and the Crown Lands Act 1992, ss 3 "lease", 9(1) that no
estate is vested in the lessee under the Pastoral Land Act when a
leasehold interest is granted.
R H Bartlett, for Ben Ward and others on behalf of the Miriuwung
and Gajerrong People, intervening. Extinguishment "parcel-by-
parcel" must have regard to the circumstances and historical facts
respecting each parcel. The Court should refrain from general
declarations about the legal effect of pastoral leases beyond those
under consideration here. [He referred to the Native Title Act
Case (113); R v Simon (114); Kruger and Manuel v The Queen (115);
United States v Sante Fe Pacific Railroad (116); United States v
(112) Re Kearney; Ex parte JapallallKka (1984) 158 CLR 395.
(113) (1995) 183 CLR 373 at 430-431.
(114) [1985] 2 SCR 387 at 406; (1985) 24 DLR (4th) 390 at 405-406.
(115) [1987] 2 SCR 104 at 105; (1977) 75 DLR (3d) 434 at 437.
(116) (1941) 314 US 339.
Pueblo of San lldefonso (117).] Extinguishment requires the manifes-
tation of a clear and plain intention (118). The onus of establishing
extinguishment is on the party asserting it (119). The requirement of
clear and plain intention and the incidence of the onus of proof must
be applied in recognition of the discriminatory nature of
extinguishment and its consequences for indigenous inhabitants. It is
buttressed by the common law presumption against confiscation or
extinguishment of vested property rights (120). Mabo [No 2J (121)
held that native title at common law could be extinguished without the
consent of native title holders or any procedure entailing assessment,
consultation or compensation. That aspect discriminates on the ground
of race against native title holders (122). [He also referred to Mabo
[No JJ (123); Mabo [No 2J (124); and United States v Sante Fe
Pacific Railroad (125).] A finding of extinguishment by inconsistent
grant without determining the nature of the native title may be futile
because the nature and content of native title are determined by
particular facts. Extinguishment can only be concluded in the absence
of a determination of the nature of the native title if inconsistency is
found no matter what the nature may be. To make that finding, all
conceivable variations of recognisable native title rights must be
identified and it must be considered whether the grant was inconsistent
with the rights under consideration. A party asserting the
extinguishment of all conceivable variations of right bears a heavy
onus. The proper inquiry is not into the character of a grant as a lease
but into the relationship between the pastoral lessee and native title
claimants. Whether a pastoral lease is a true lease is a complex
question (126). Characterisation as a lease for taxation purposes
(117) (1975) 513 F 2d 1383 at 1388, 1390.
(118) Mabo [No 1] (1988) 166 CLR 186 at 195,201,210-215,217-218,222-228,241;
Mabo [No 2J (1992) 175 CLR I at 64, 136, 138, 195-196; the Native Title Act
Case (1995) 183 CLR 373 at 423.
(119) Native Title Act Case (1995) 183 CLR 373 at 423; Mabo [No 2J (1992) 175 CLR
I at 64, I I I, 183; Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399
at 410; Calder v Attorney-General (British Columbia) [1973] SCR 313 at 401,
404; (1973) 34 DLR (3d) 145 at 208, 210-211; Simon v The Queen [1985] 2 SCR
387 at 405, 406; R v HOrSemGfl [1990] I SCR 90; Sparrow v The Queen [19901
I SCR 1075 at 1098; Delgamuukw v British Columbia (1993) 104 DLR (4th) 470
at 521-522, 595, 663, 673-674, 753; Lipan Apache v United States (1967) 180 Ct
CI 487 at 492.
(120) Lauterpacht, An International Bill of Rights (1945), P 115, quoted Gerhardy v
Brown (1985) 159 CLR 70 at 128.
(121) (1992) 175 CLR I at 15,64.
(122) Mabo [No 1] (1988) 166 CLR 186 at 218, 231; the Native Title Act Case (1995)
183 CLR 373 at 439.
(123) (1988) 166 CLR 186 at 213-214, 224.
(124) (1992) 175 CLR I at 64.
(125) (1941) 314 US 339 at 354.
(126) Harbison, "Hohfeld and Herefords: The Concept of Property and the Law of the
Range", New Mexico Law Review, vol 22 (1992) 459; van Hatlem, "Implications
of the Native Title Legislation for the Pastoral Industry", Native Title Legislation
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provides a reason, context and purpose for a particular purpose (127).
There is no such reason or purpose here. The expression exclusive
possession lacks precision. Instruments characterised as leases may
confer varying degrees of exclusivity of possession or physical
control (128). Rather than attempt to ascertain the degree of physical
control conferred by a pastoral lease against the world, the Court
should ascertain whether the grant is so inconsistent with native title as
to show a clear and plain intention to extinguish it. Whether a pastoral
lease is a true lease does not determine whether it extinguishes native
title. Characterisation of such leases as licences, leases or profits a
prendre misapprehends the criterion. If Brennan 1's judgment in Mabo
[No 2] (129) suggests that every lease, irrespective of its terms,
extinguishes native title, it should be rejected. Deane, Gaudron and
Toohey 11 do not accept that proposition in Mabo [No 2] (130). The
judgments are compatible upon the understanding that Brennan J was
referring to the general case, not the exceptional. Nothing in his
judgment suggests that leases were intended to be the subject of a
distinct criterion nor that extinguishment by grant of a lease was not to
be determined without regard to the particular terms and conditions.
[He also referred to Pareroultja v Tickner (131 ).] Brennan J suggested
that in the general case upon the grant of a lease the Crown expanded
its interest to acquire the reversion. But the reversion may be confined
to the interest conveyed by the lease. Acquisition of the reversion will
extinguish native title only if the grant of the lease conveyed such an
interest as must of necessity do so (132). United States jurisprudence
suggests that exclusive rights to pasture or graze do not extinguish
native title and affirms that the fundamental question is whether there
is a clear intention to extinguish (133). In the United States cases the
critical question was whether there was clear manifestation of
congressional intention to extinguish in the context of government
(126) cont
in Australia (ed Bartlett & Meyers) (1994). p 200; R v Toohey; Ex parte Menelinf(
Station Ply Ltd (1982) 158 CLR 327 at 352.
(127) ICI Alkali (Aust) Ply Ltd v Federal Commissioner of Taxation (1978) 53 ALJR
220; 22 ALR 465; 9 ATR 373; 78 ATC 4728.
(128) Powell v Mc""arlane (1977) 38 P & CR 452 at 470; Buckinf(hamshire County
Council v Moran [1990] Ch 623 at 641; Petkov v Lucerne (1992) 7 WAR 163
at 167.
(129) (1992) 175 CLR 1 at 68-69.
(130)(1992) 175 CLR 1 at 117, 196-197; see also at 110.
(131) (1993) 42 FCR 32 at 44.
(132) North Ganalanja Aborif(inal Corporation v Queensland (1995) 132 ALR 565
at 591.
(133) Taylor Grazinf( Act 43 USCS, s 315;. Harbison, "Hohfeld and Herefords: The
Concept of Property and the Law of the Range", New Mexico Law Review, vol 22
(1992) 459, at pp 470, 488-495; United States v Dann (1983) 706 F 2d 919 at 932;
United States v Dann (1985) 470 US 39 at 45; but see United States v Dann
(1989) 873 F 3d 1189 at 1196-1200; (cert den (1989) 493 US 890).
policy. Emphasis was not placed upon a common law character of the
grant for other purposes.
P A Keane QC, Solicitor-General for the State of Queensland, (with
him G J Gibson QC, G J Koppenol and D A Mullins), for the
respondent State.
The grant of the Mitchellton and Holroyd leases extinguished native
title. Native title recognised by the common law is extinguished by a
valid exercise of sovereign power inconsistent with the right to enjoy
it. A Crown grant of an interest in land inconsistent with the continued
right to enjoy native title in respect of that land extinguishes it. Actual
intention to extinguish is not necessary if the grant is inconsistent with
the right of enjoyment. Whether title has been extinguished does not
depend on a comparison of the manner and extent of the exercise of
rights under the grant with the continued exercise of the incidents of
native title. The Wik submission does not accord with the judgments
of five Justices in Mabo [No 2J (134). The Native Title Act Case (135)
shows that the exercise of sovereign power in making the grant
determines extinguishment. The grant of a freehold or leasehold estate
extinguishes native title because the exercise of power to grant reveals
a clear and plain intention of the Executive to extinguish it (whether or
not there was actual intention). The Wik submission raises false issues
in asking whether there was a clear and plain intention to extinguish in
the 1910 or the 1962 Act and whether there is actual inconsistency in
the exercise of rights of traditional occupants and grantees of the
leases. The real question is whether a pastoral lease granted under
either Act is an interest inconsistent with a continuing right to enjoy
native title. It is unnecessary to ascertain whether either Act evinces a
clear and plain intention to extinguish. The Wik submissions are
wrong in asserting a strong presumption that a statute, such as the
1910 or the 1962 Act, is not intended to extinguish. The presumption
referred to in Mabo [No I J(136) is against a legislative intent to
confiscate or extinguish vested proprietary rights or interests without
compensation. The statement from Mabo [No 2J (137) on which the
appellants rely refers to the strong assumption of the common law that
existing native interests were respected and protected under the law of
the Colony once established. The presumption referred to in the Native
Title Act Case (138) applied on the acquisition of sovereignty. The
submission that if the 1910 or the 1962 Act is wholly or partially
inconsistent with a continuing right to enjoy native title, it is
extinguished pro tanto proceeds on the basis that the Act extinguishes,
not the grant of an interest under it. The submission that neither Act
(134) (1992) 175 CLR 1 at 64, 68, 69,110.
(135) (1995) 183 CLR 373 at 439.
(136) (1988) 166 CLR 186 at 224.
(137) (1992) 175 CLR I at 96.
(138) (1995) 183 CLR 373 at 422.
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nor the pastoral leases should be read as conferring greater,
unexpressed, incidental power than is necessary for the enjoyment of
the rights to occupy land and conduct pastoral activities ignores what
was said in Mabo {No 2] (139) to be the effect on native title of a
grant by the Crown which is inconsistent with its existence. The grant
of a pastoral lease under the 1910 or the 1962 Act extinguished native
title when it was made in accordance with the Act. A pastoral lease
granted under the Acts is not sui generis. A grant of a lease by the
Crown confers rights of exclusive possession for the term and also
creates the Crown's interest in the reversion. The acquisition of the
reversion on the creation of the lease converts radical title into full
beneficial title, subject to the lease. A pastoral lease is said by the
appellants to confer a right of depasturing stock or a grazing or
agistment right rather than exclusive possession. Two major points are
advanced: (a) Queensland's legislative power was subject to a
limitation which prevented it from granting pastoral leases which
extinguished native title; (b) pastoral leases were regarded in the 1840s
as sui generis and not as conferring the right to exclusive possession
upon the lessee. Both propositions are wrong. The limitation on power
argument was advanced in Mabo (No 1] (140) with reference to
Queensland's legislative power to extinguish native title and was
rejected by Dawson J, with whom Mason CJ and Wilson J
agreed (141). It was rejected again in Re Waanyi People's Native Title
Application (142) and on appeal in North Ganalanja Aboriginal
Corporation v Queensland (143) where it was not accepted by two
judges (144). It was rejected by Drummond J (145). It was raised
again in the Wik notice of appeal, but has been abandoned.
From the time of British settlement, the disposal of land in New
South Wales was a matter of prerogative. Land was initially sold or
granted. In 1826, the concept of "limits of settlement" or "limits of
location" was introduced and boundaries were set within which
persons could purchase or receive grants. In 1831, Imperial regulations
were issued by which the practice of making grants ceased. Thereafter
land could be alienated only by sale or lease. Settlement was not
permitted beyond the limits of location, but squatters began taking up
runs beyond the limits without reference to authority. They were not
concerned with buying land or stopping within the s u r v e y ~ d areas. A
number of Acts and regulations were passed in an effort to control the
occupation of land beyond the limits and squatters were required to
hold licences to depasture to regulate their occupation. In 1842, the
(139) (1992) 175 CLR 1 at 68, 69, 71, 73, 89. 110, Ill.
(140) (1988) 166 CLR 186.
(141) Mabo [No 1] (1988) 166 CLR 186 at 239-240.
(142) (1995) 129 ALR 118 at 145.
(143) (1995) 132 ALR 565.
(144) North Ganalanja (1995) 132 ALR 565 at 614.
(145) Wik Peoples v Queensland (1996) 134 ALR 637 at 644-664.
prerogative power to dispose of waste lands in New South Wales was
removed by the Sale of Waste Lands Act 1842 (Imp) which provided
that land could be disposed of only in accordance with that Act. It
preserved the Governor's power to grant licences for up to twelve
months and the practice of granting annual licences to squatters
continued. They had demanded greater security of tenure as well as
compensation for improvements and a right of pre-emption. In 1844 a
Select Committee of the Legislative Council investigated their claims
and recommended that they be granted leases. The Imperial and
Colonial authorities acceded to those claims when the Sale of Waste
Lands Amendment Act 1846 (Imp) was passed authorising the grant of
leases (for not more than fourteen years) or licences to occupy Crown
land. A distinction was thus drawn between licences and leases. In
March 1847, an Imperial Order in Council, comprising regulations to
the 1846 Act, authorised the Governor to grant pastoral leases and
gave existing licensees a right to demand leases of their runs. In May
1847, Governor FitzRoy sent Secretary of State Earl Grey a report
from an Assistant Protector of Aborigines recommending that suitable
reserves be immediately formed for the benefit of the Aboriginals,
because unless that were done, the granting of leases of Crown lands
would deprive them of any right to hunt over their native land. Earl
Grey replied that his view was that leases granted for the purpose of
pastoral occupation gave only limited rights which did not deprive
natives of rights to hunt etc. Recognising that his view might not be
shared in New South Wales, he suggested that the limitation on the
right of exclusive occupation granted by Crown leases be enforced by
public declaration or declaratory Act. The local law officers advised
that a pastoral lease did confer exclusive possession free of Aboriginal
rights of access. That view was accepted by legal advisers to the
Colonial Office. An Imperial Order in Council of July 1849 made
from a draft prepared by them was forwarded to the Governor with a
despatch which shows that Earl Grey had by then accepted that, in the
absence of express condition enabling Aboriginal access, a pastoral
lease in New South Wales conferred exclusive possession against all
others, including Aboriginals, of the land demised. He never sought to
give a binding direction to the Governor to include Aboriginal access
conditions in pastoral leases. The O,der in Council only empowered
the Governor in his discretion to include a condition in future pastoral
leases. No binding requirement was ever sought to be imposed that an
access condition be included. A clause permitting Aboriginal access
was inserted in some early Queensland pastoral leases but it was never
required by statute. It was a matter for the Governor's discretion.
Queensland became a separate colony in 1859. The 1847 and 1849
Orders in Council were repealed by its legislature in 1860 and 1868.
On their repeal, the discretion to insert a clause in future pastoral
leases disappeared. The Pastoral Leases Act 1869 (Q) did not
authorise the insertion of a clause permitting Aboriginal access, nor
did subsequent Queensland Acts. The argument that the list of
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statutory derogations, exceptions and potential exceptions arrayed
against the pastoralist' s rights of possession suggests it is inappropriate
to equate the possession of a pastoral lessee with the nature and extent
of possession enjoyed by private lessees is self-defeating: statutory
exceptions were necessary because pastoral leases conferred those
rights. The nature and extent of rights enjoyed by pastoral lessees is
established (146). The events which resulted in the Order in Council of
July 1849 are not relevant to construing the 1910 or the 1962
Act (147). They were enacted against the background of many
decisions characterising the relationship of the Crown and a pastoral
lessee under Crown lands legislation as of landlord and tenant (148).
The incidents of the Mitchellton leases depend on the 1910 Act and
those of the Holroyd lease, the 1962 Act. Section 6 of both Acts
altered common law requirements (149) for a valid grant by the Crown
of a statutory lease. Section 6(2) of each Act provides that entry into
possession was not required to give effect to the grant. The language
of s 6(2) of the 1910 Act excluded the application of interesse termini.
At common law, a lease is a grant of a right of exclusive possession
for a term and is an interest in land (150). When a statute describes an
interest that can be granted under it as a "lease", the nature of what is
granted depends on its construction. That the well understood term
"lease" is used is significant (151). In s 6(1) of the 1910 Act, the
lease is described as a "demise for a term of years". "Demise" is the
usual word to describe conveyance by lease. Under s 6(2) of the 1910
Act, the lease takes effect as an estate or interest in land. Section 122
of the 1910 Act enables a lessee to surrender. "Surrender"
traditionally describes the yielding up of an estate for years or life to
the holder of the immediate estate in reversion or remainder. Section
135 of the 1910 Act provides for the leased land to revert to the
Crown if the lease is determined prematurely. Materially identical
provisions (ss 6(1), (2), 299, 333) are in the 1962 Act. Both Acts
provide for the lease to be subject to authorised or prescribed
reservations and conditions. The provisions are consistent only with
(146) Wildash v Brosnan (1870) I QCLLR 17 at 18; Macdonald v Tully (1870) 2 QSCR
99 at 106; Heness v Bell (1906) 3. QCLLR 47 at 49-50; R v Tomkins [1919] St R
Qd 173 at 190,194,198.
(147) North Ganalanja Aboriginal Corporation v Queensland (1995) 132 ALR 565
at 613.
(148) Attorney-General (Viet) v Ettershank (1875) LR 6 PC 354, 370; O'Keefe v
Williams (1910) II CLR 171 at 191, 193, 200, 209; Yandama Pastoral Co v
Mundi Mundi Pastoral Co Ltd (1925) 36 CLR 340.
(149) Campbell, "Crown Grants: Form and Validity", Australian Law Journal, vol 40
(1967) 35, at p 38.
(150) Landale v Menzies (1909) 9 CLR 89 at 100-101, III; Radaich .' Smith (1959) 101
CLR 209 at 217-218,222; Chelsea Investments Pty Ltd v Federal Commissioner
olTaxation (1966) 115 CLR I at 8.
(151) American Dairy Queen (Q'ld) Pt)' Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677
at 682-683.
the lease otherwise conferring a right of exclusive possession. [He also
referred to Goldsworthy Mining Ltd v Federal Commissioner of
Taxation (152).] The reservation permitting persons duly authorised by
the Governor in Council to go on the land for any purpose etc is a
limited right. Neither Act regulates their entry: entry is authorised, not
a right of possession. If a lessee's possession were to be adversely
affected or diminished by the exercise of a right of entry, the Act
would have dealt with the interaction of the rights. The absence of
such provisions is consistent with the reservation's not altering the
nature of the right of possession. The Holroyd lease does not limit the
use of the land. Both Mitchellton leases were restricted to pastoral
purposes. [He referred to Glenwood Lumber Co Ltd v Phillips (153).]
The submission that the creation of a statutory right to remove
trespassers demonstrates that, on the question of possession, pastoral
leases cannot be equated with private leases misstates the effect of
s 373( I) of the 1962 Act which provides only a statutory method to
recover possession in addition to a common law right of the Crown to
recover possession of Crown land from trespassers. In proceedings
under s 373( I) the Crown seeks to recover on behalf of the Crown.
When the sub-section also confers on a lessee power "in like manner"
to make a complaint and states that "the like proceedings shall
thereupon be had", any warrant issued would require the possession to
be taken on behalf of the complainant lessee not the Crown. [He
referred to s 204 of the 1910 Act, s 235 of the 1897 Act, s 123 of the
Crown Lands Act 1884 (Q) and s 71 of the Pastoral Leases Act 1869
(Q) which were similar to s 373 of the 1962 Act. cf s 28 of the
Unoccupied Crown Lands Occupation Act 1860 (Q) and s 58 of the
Pastoral Leases Act 1863 (Q) which did not confer summary rights but
recognised common law rights (154).] A right of pasture may be the
subject of a profit aprendre, but the rights under the Mitchellton leases
were more extensive than to take grass off the land. Neither the 1910
nor the 1962 Act purports to prescribe all incidents of a statutory lease.
Neither deals with the nature of a lessee's possession, relief from
forfeiture (in the case of the 1910 Act), the right to waive forfeiture, or
the lessees' obligation to deliver up possession on the expiry of the
lease by effluxion of time. Where a statute uses an understood
common law term to describe an interest but does not prescribe all the
incidents and rights, the interest comprehends those of the common
law interest, subject to statutory modification (155). R v Toohey; Ex
(152) (1973) 128 CLR 199 affd (1975) 132 CLR 463.
(153) [19041 AC 405.
(154) McGavin v McMaster (1868) 2 QSCR 23.
(155) O'Keefe v Williams (1910) II CLR 171 at 191, 193, 200, 209; American Dairy
Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 683, 686;
At/orney-General (Viet) v Et/ershank (1875) LR 6 PC 354 at 370; Minister for
Lands and Forests v McPherson (1991) 22 NSWLR 687 at 696-697, 712-713.
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parte Meneling Station Pry Ltd (156) addresses the process of
characterising the interest, not of determining the rights that apply to
it. The indicia in the 1910 and the 1962 Act compel the conclusion
that a lease under them is a statutory lease which confers rights of a
general law lessee, including exclusive possession, subject to statutory
modifications. The right to exclusive possession conferred by the
MitchelIton leases was not diminished by restriction of use to pastoral
purposes. A common law lessor's interest in the reversion arises on
grant. Without a reversion the relationship of lessor and lessee does
not exist (157). The nature of the interest acquired by the Crown on
the grant of a pastoral lease is relevant. The acquisition of the
reversion converts radical title into beneficial title, subject to the lease.
Bristow v Cormican (158) was not concerned with the expansion of
radical title into beneficial ownership. The Crown's beneficial title
depended upon proof of title from prior owners (159). A profit a
prendre is an interest in land. If the Thayorre People's claimed rights
of possession of the MitchelIton lands is a profit aprendre, the source
of the rights must be the Crown.
The decision that the pastoral leases extinguished native title rights
determines the appellants' claim. Extinguished native title rights do
not revive. The appellants make no claim other than for the asserted
title. Notions of "suspension" and "revival" are inconsistent with the
concept of extinguishment. Neither Brennan J nor Deane and
Gaudron 11 in Mabo (No 2J support or leave open the possibility that
the grant of an interest inconsistent with the continuance of native title
can operate to suspend that title. Nul/um Tempus Act 1769 (Imp) was
repealed retrospectively by s 6(4) of the Limitations of Actions Act
1974 (Q). If the Court considers the issue of possessory title, this
submission disposes of it.
The Crown does not hold the reversions on trust for previous native
title holders. It owed native title holders no fiduciary duty in relation
to their rights. Such a duty is inconsistent with the extinguishment of
native title rights and the beneficial ownership created by the grant.
The Wik did not plead a case of that character. Their case does not
depend on equities independent of asserted native title. The prop-
osition that the Crown owes a fiduciary duty to appellants whose
native title has been extinguished is not supported by authority and is
wrong in principle. If no beneficial interest subsists, there is no basis
for holding that land is held by the Crown subject to a fiduciary duty
to the appellants. The United States cases rest on a basis fundamen-
tally different from that in Australia. Courts there have long
recognised the existence of a trust or fiduciary relationship between
(156) (1982) 158 CLR 327 at 344.
(157) Maho INo 2J (1992) 175 CLR I at 68, 73.
(158) (1878) 3 App Cas 641.
(159) Bristow v Cormican (1878) 3 App Cas 641 at 652-653, 655, 658-659. 665-666.
government and Indian tribe, akin to that of guardian and ward,
founded on the Nonintercourse Act 1790 (US) (\60). Once the source
of the relationship is appreciated, the cases cited by the appellants can
be seen as implications from the Nonintercourse Act rather than
examples of a "free standing" (but quite amorphous) fiduciary
duty (161). Despite the guardian/ward relationship, it has been
recognised that Indian title can be extinguished under statute (162).
United States cases do not support the proposition that governments
owe a fiduciary duty generally to holders of native title, much less to
former holders. The position in Canada is fundamentally different too.
There was historically an assumption of responsibility by the Crown in
respect of Indian land ownership. See, eg, Indian Act 1952 (Can),
under which the Indian interest in land was inalienable except on
surrender to the Crown. Thus Guerin v The Queen (163) held that the
fact that the Crown's obligations to the Indians could not be defined as
a trust did not mean that it owed them no enforceable duties
concerning its dealing with Indian land. The fiduciary relationship
rested upon the nature of the Indians' title to use the land and the
restricted surrender provisions of the Indian Act which placed the
Crown in the position of protector of the Indians' commercial
interest (\ 64). The position in Australia is different. In Sparrow v The
Queen (165) it was said that, in relation to s 35( I) of the Constitution
Act 1982 (Can), "the relationship between the Government and
aboriginals is trust-like, rather than adversarial, and contemporary
recognition and affirmation of aboriginal rights must be defined in
light of this historic relationship". No subsequent Canadian case
purports to extend the source of the fiduciary duty expounded in
Guerin and Sparrow. The possible existence of a general fiduciary
relationship between the Crown and native title holders was raised in
Mabo [No 2J (166) but only Toohey J offered any support. A fiduciary
obligation of the kind he described is inconsistent with the proposition,
accepted by the majority and by the Court in the Native Title Act
(160) Joint Tribal Council of Pasmmaquoddy Tribe v Morton (1975) 528 F 2d 370 at
372 n 2, 374 n, 375-376, 379; Oneida Indian Nation of New York v County of
Oneida. New York (1974) 414 US 661 at 684; United Slllt,'s v University of New
Mexico (1984) 731 F 2d 703, cert den (1984) 469 US 853; Ca!awba Indian Tribe
of South Carolina v South Carolina (1983) 718 F 2d 1291 at 1298-1299; Hoopa
Valley Tribe v Christie (1986) 805 F 2d 874 at 879 and (1987) 812 F 2d 1097
at 1102; Golden Hill PauE;ussett Tribe of India/lS v Weider (1994) 39 F 3d 51
at 56; Tonkawa Tribe of Oklahoma v Richards (1996) 75 F 3d 1039 at 1045.
(161) eg, United States v Mitchell (1983) 463 US 206 at 225-226.
(162) eg, United Sllltes v 7.405.3 Acres of Land in Macon. Clay. and Swain Counties.
NC (1938) 97 F 2d 417 at 422; United Sllltes v Santa Fe Pacific Railroad Co
(1941) 314 US 339 at 347; cert den (1942) 314 US 76.
(163) [1984] 2 SCR 335; (1984) 13 DLR (4th) 470.
(164) Guerin v The Queen [1984]2 SCR 335 at 376; (1984) 13 DLR (4th) 321 at 334.
(165) [1990]1 SCR 1075 at 1108; (1990) 70 DLR (4th) 385 at 408.
(166) (1992) 175 CLR 1 at 202-203.
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Case (167), that, subject to the Racial Discrimination Act, the Crown
may extinguish native title without the consent of the title holders. If
native title is extinguished by the grant of a lease, there is no basis for
holding that the reversion is held for the benefit of persons who, ex
hypothesi, have no beneficial interest in the land.
The enactment of the Comalco Act and the Aurukun Associates Act,
the making of the Agreements under (or associatcd with) them and the
grant of the mining leases precludes the maintenance of claims for
procedural unfairness, breach of fiduciary duty or trust, account and
unjust enrichment and for an injunction and damages based on
activities of Comalco and Pechiney under State Agreements.
Drummond 1's conclusions upon the claims was correct in principle
and supported by authority (168). The submission that the Act did not
oblige the Premier to sign Agreement is misconceived. It authorised
the Premier to sign the Agreement. Both the immediate purpose and
the ultimate objects of a principal are relevant in considering an
agent's authority (169). Parliament's intention was that the State
would proceed to enter into the agreement for the development of a
major mining project. [He referred to Ex parte Johnson; Re
Macmillan (170).] The Premier was required to execute the Agree-
ment. Even if he was not, it was signed, and s 3 of the Act thereby
rendered the conduct in signing immune from challenge. The
submission that the claims should be maintainable unless the contrary
"is a necessarily intended consequence" of the Act misconceives the
holding in Mabo {No 2J that the determining factor is the effect of the
legislative instrument not the "necessarily intended consequence".
G Griffith QC, Solicitor-General for the Commonwealth, (with him
D J McGill SC and M A Perry), for the respondent the Commonwealth
of Australia.
Extinguishment of inconsistent rights by grant: On the acquisition
of sovereignty over part of the territory of Australia, the Crown
acquired radical title to the land and waters. Where there was no
indigenous owner, radical title enabled the Crown to acquire absolute
beneficial ownership without further step. Where native title rights
existed radical title did not expand into beneficial ownership. The
Crown did not have possession at common law though it had radical
title. Recognition of native title could co-exist with it. Sovereignty
clothed the Crown with capacity to expand radical title to absolute
ownership by exercise of political power and so extinguish native title.
The Sale of Waste Lands Act 1842 (Imp) may have removed the
(167) (1995) 183 CLR 373-
(168) COII/alco Case [1976] Qd R 231 at 249, 258, 259; Coe \. The COII/II/onwealth
(l993)68ALJR II0at 118; 118ALR 193 at 203-205.
(169) Restatement of the Law, 2d, Agency 2d, vall, *34, P 121.
(170) (1946) 47 SR (NSW) 16.
prerogative to make grants and promises to grant land and replaced it
with a statutory scheme. When sovereign power to grant an interest is
exercised, the relationship between the Crown and the land undergoes
a fundamental change. The doctrine of tenure, that all land is held of
the King as Lord Paramount, provides the basis for the grant and
defines the relationship between tenant and Crown. Native title is
extinguished only where there is a "clear and plain intention".
Intention need not be actual or express. It is sufficient that there be a
step clearly inconsistent with the continuation of native title rights, eg,
the grant of legal rights in respect of land necessarily inconsistent with
the continuation of the native title rights, such as the grant of freehold
or a lease. Complete extinguishment is effected by the creation of
wholly inconsistent legal rights, not by their exercise. In the United
States and Canada, the grant of legally inconsistent titles extinguishes
aboriginal title where aboriginal rights have not been recognised by
treaty (171). Where rights derived from the sovereign power are
inconsistent with their continued existence, pre-acquisition rights are
extinguished. The law cannot require the enforcement of mutually
inconsistent rights. In the absence of contrary legislation, the collision
of rights created by the grant of an inconsistent interest must be
resolved in favour of rights created under Australian law. The
presumption against derogation from a Crown grant does not require
the reading down of a statutory power the exercise of which is apt to
extinguish native title. Only the Commonwealth and the States and
some of their statutory authorities can act to extinguish native title. It
is accepted in the United States that power to extinguish indigenous
title lay at first exclusively with the States and then with the United
States, specifically Congress (172). Similarly in New Zealand (173).
As the power is a sovereign political power, it is not circumscribed by
a requirement that it be exercised in the best interests of indigenous
peoples. Likewise, in the United States, the manner, time and
conditions of extinguishment are nonjusticiable in the absence of a
statute providing otherwise. Compensation is not required unless by
treaty or statute.
Intention: Extinguishment by inconsistent grant does not depend on
actual intention. The principle that the exercise of power to extinguish
must reveal a "clear and plain intention" does not refer to subjective
intention. Where a grant is inconsistent with the continuation of native
title, clear and plain intention is revealed or evidenced by, or inferred
(171) ego United States v Atlantic Richfield Co (1977) 435 F Supp 1009 at 1020;
Missouri. Kansas and Texas Railway Co v Roberts (1894) 152 US 114 at 117-
118; Hamlet of Baker Lane v Minister of Indian At/airs and Northern
Development [19801 I FC 518 at 566; (1979) 107 DLR (3d) 513 at 549;
DelRamuukw v British Columbia (1993) 104 DLR (412) 470 at 525.
(172) Burtz v Northern Pacific Railroad (1886) 119 US 55 at 66; Turtle Mountain Band
of Chippewa Indians v United States (1974) 490 F 2d 935 at 945.
(173) R v Symonds [1847] NZPCC 387 at 389-390.
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from, inconsistency between the rights created and the continuation of
native title rights and interests. It is not appropriate to adopt the stricter
United States intention test where the existence of aboriginal rights
was formally recognised and acknowledged by proclamations, treaties
and statutes for hundreds of years. Statutory provisions under which a
grant is made need not expressly authorise the extinguishment of
native title or reveal an intention to do so. It is enough that the law
authorises a grant which by its nature is inconsistent with the
continuation of native title rights. Statutory powers should be
construed in historical context.
Revival: Extinguished native title cannot be revived. Common law
rules about the recognition of pre-acquisition rights are about the
extent to which the common law regards them as continuing. When
they cease, they are extinguished forever. To treat native title as
suspended by common law would treat it as a form of title which
stands between radical and ordinary common law titles, so that, on the
cessation of a common law title, land would revert not to the Crown
but to the native title holders. There is no support for revival or
suspension in foreign jurisprudence. Native title rights may be
regulated in a manner which does not effect extinguishment.
Extinguishment by grant of pastoral lease: A lease is an estate
inconsistent with the continuation of native title rights and interests. Its
grant necessarily extinguishes native title (174). The grant is inconsist-
ent because the lessee acquires possession and the Crown, the
reversion. There is no distinction between a pastoral lease and any
other kind of lease. The history of the occupation and use (or lack of
use) after grant is irrelevant, as is the term. A reversion expectant
arises on grant and is a property right vested in the lessor analogous to
an incorporeal hereditament. It carries a number of rights including the
benefit of lessee's covenants and distress for rent and may be assigned
separately from the lessor's other interests such as the freehold.
Inherent in the grant of a lease is the lessor's right to enter into
possession at termination (175). That reversion arises at the moment of
grant reflects the alteration in the relationship between the Crown and
the land inherent in the first grant of an interest. The doctrine of tenure
applies and the Crown acquires an interest. It no longer holds mere
radical title and, in the case of a lease, is regarded as being in
possession at law, though the tenant has the right to actual possession
for the term. The necessary and complete inconsistency between the
acquisition of the reversion expectant and the continued enjoyment of
native title rights lies in the right to assume absolute beneficial
ownership at the end of the term. Inconsistency also arises from the
assertion, implicit in the grant of the lease, of the rights of a full
beneficial owner of the land out of which the grant is made. Exclusive
(174) Mabo [No 2J (1992) 175 CLR I at 15,68,69,71-73.110,158.
(175) AflderWfl v Bowles (1951) 84 CLR 310 at 319.
possession is an essential element of a lease and its conferral will
necessarily determine that what is granted is a lease. The concept of
exclusive possession is capable of accommodating extensive reser-
vations permitting others entry on the land and to carry out activities
thereon which operate by way of regrant. The absence of a covenant
for quiet enjoyment will not necessarily involve that no right to
exclusive possession has vested in the lessee. The grant of a lease
carries a right to exclude all persons from the land subject to any
applicable reservations. The conferral of a right to exclusive
possession extinguishes native title rights. That a lessee may not take
possession does not preclude the extinguishment at grant. The Crown
has applied the land to its own use (as a source of rent and with the
benefit of the reversion) in a way inconsistent with the continuation of
native title rights. The assertion of full beneficial ownership
immediately before grant which is implicit in that act and provides its
basis is necessarily inconsistent with the continuation of native title.
Pastoral leases: A pastoral lease confers the right to exclusive
possession and is a true lease. The legislation and leases here clearly
evidence an intention to grant a lease having regard to the terms of the
empowering Acts, legislative history, the presence of reservations, the
express statutory power to remove trespassers and other indicia. The
Acts and leases use language appropriate for a lease and inappropriate
for a lesser interest (176). Other indicia of intention to create a lease
include the express right to remove trespassers, the obligation to pay
rent, the substantial term of the lease, obligations to fence and carry
out other improvements, the insertion of reservations in favour of
others to enable them to enter the land or use it when otherwise they
would be excluded, and the ability to mortgage, sublet or transfer. It is
significant that, following the example of the Waste Lands Occupation
Act 1846 (Imp), legislation has commonly provided both for leases and
licences. That was so in the Land Act 1910, which made separate
provision for pastoral leases and occupation licences, and the Land Act
1962. The intention to confer exclusive possession by the grant of
pastoral leases is also consistent with the history of legislation in the
Australian colonies relating to leasing for pastoral purposes. Pastoral
leases developed as a response to demands by squatters for security of
tenure, compensation for improvements and a pre-emptive right. Those
demands are reflected in the Land Acts. Intention to confer exclusive
possession is not accidental. One way of testing legislative intention is
to consider whether it could have been intended that rights be
conferred on the lessee subject to the rights of existing Aboriginal
occupants. The grant was not intended to be conditional on any native
title first being extinguished by the Crown, nor can it sensibly be
regarded as a right to occupy to the extent that occupation was not
(176) American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677
at 687.
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inconsistent with Aboriginal rights. Even if native title were limited to
rights to enter or be on the land for certain purposes, in a case of
conflict the lessee would be obliged to give way. It would be
unrealistic to impute such an intention to the legislature. The
undoubted intention was to invest the lessee with control over the land,
who entered it and what activities took place, subject to any
restrictions imposed by or under legislation. That is a right of
exclusive possession. Exclusive possession does not mean that no-one
except the lessee is expected to be present on the land but that the
lessee has control over who is to be on it. Reference to "pastoral
purposes" merely indicates the intended use. It is common for leases
to be expressed to be for limited or specific purposes yet such interests
are leases. There should be no distinction between leases for pastoral
and for other purposes. To hold that a lease for a specific purpose was
a lesser interest such as a profit aprendre would involve a fundamental
alteration to property law. Confining the grant to pastoral purposes had
the consequence that a lessee who wished to use the land for other
purposes had to purchase the freehold. Nor is the inclusion of
"reservations" in favour of other persons inconsistent with exclusive
possession, even where they are extensive and continue throughout the
term. Such reservations would not be necessary if exclusive possession
was not conferred. Even grants of fee simple under statutory powers
could be subject to reservations and conditions (177). Even where a
lease contains a reservation in favour of Aboriginal persons the result
is the same. The grant results in the creation of a reversion expectant.
That the Crown's right to absol ute beneficial ownership is deferred is
immaterial as the right vests in interest at grant. The lease confers
exclusive possession and reservations are in effect "carved out" of
that right by regrant by the lessee. The combined effect of the
conferral of the right to exclusive possession and the acquisition of the
reversion expectant is the extinguishment of native title (178). The
view of Deane and Gaudron JJ in Mabo [No 2] (179) does not account
for the transformation of radical title into an interest in the land at
grant and the acquisition of the reversion expectant. At common law, a
purported reservation in favour of the landlord or others in the nature
of an easement or profit a prendre was not "reservation" (180) or an
"exception" (181) and was void. This could be avoided where the
tenant executed the lease, whereupon the easement or profit could take
effect on the basis that the tenant, having been granted exclusive
possession, had then re-granted the easement or profit to the landlord,
(177) Land Act 1910, S 6(1).
(178) Mabo [No 2](1992) 175CLR 1 al72-73, 158.
(179) (1992) 175 CLR 1 a189, 110, 117.
(180) Durham & Sunderland Railway v Walker (1842) 2 QB 940 at 967 [114 ER 364
at 374]; Doe d Douglas v Lock (1835) 2 Ad & E 70S at 743 [111 ER 271 at 287].
(181) Durham & Sunderland Railway v Walker (1842) 2 QB 940 [114 ER 364].
his assigns or other persons. On this analysis, reservations in favour of
Aboriginal inhabitants, unless necessarily a term of a grant by statute,
would only be effective if a lease had been executed by the lessee. If
valid, such a "reservation" would create new rights enforceable by
the Aboriginal persons to whom it applied or by the Crown.
Accordingly, a reservation in the lease would supplant existing native
title and the rights of Aboriginal persons with respect to the land
would thereafter be derived exclusively from, and be defined by, the
terms of the reservation. Even where the common law is displaced by
statute providing that leases are subject to such reservations, it ought
to be presumed that the statute applies common law doctrines unless it
provides otherwise. Statutory schemes of reservation operate as if the
reservation had been made at common law and takes effect as a grant
by the lessee and is subsidiary to the lessee's title. Alternatively, the
source of the rights in such a case is the statute rather than traditional
laws and customs recognised by common law.
Fiduciary duties: There was no breach of general fiduciary duty in
making grants of interests in land under legislation for that purpose.
An argument that the Crown owes a general fiduciary duty to all
native title holders and hence takes the reversion in trust for former
native title holders is inconsistent with Mabo [No 21. The vulnerability
of native title to extinguishment and the Crown's capacity to effect it
do not found a fiduciary duty. The opinion of Toohey J in Mabo
[No 2J (182) was not supported by any other Justice and is
inconsistent with the result. Fiduciary duties have been imposed in
other jurisdictions only where the sovereign has undertaken obligations
to act on behalf of the native title holders in respect of their interest,
by statute, by treaty, or in some other formal manner, eg,
proclamation (183). Since no general fiduciary duty has been owed by
the Crown in respect of land subject to native title there can be no
breach and no constructive trust of the reversion. The Crown is not
under a duty not to exercise statutory powers if they would affect
native title. The fact that a statute authorises grants must override an
obligation which might otherwise exist not to make such grants. [He
referred to Mersey Docks and Harbour Board Trustees v Gibbs (184);
Allen v Gulf Oil Refining Ltd (185); Geddis v Proprietors of the Bann
Reservoir (186); and Peinkinna' s Case (187).]
Common law possessory title: The argument that a possessory title
could have been acquired under the Crown Suits Act 1769 (Imp)
(Nullum Tempus Act) cannot be sustained because s 6(4) of the
(182) (1992) 175 CLR I at 199-205.
(183) Guerin v The Queen [1984] 2 SCR 335; (1984) 13 DLR (4th) 321 and United
States v Mitchell [No 2J (1983) 463 US 206.
(184) (1866) LR I HL 93 at 112.
(185) [1981] AC 1001.
(186) (1878) 3 App Cas 430.
(187) (1978) 52 ALJR 286; 17 ALR 129.
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Limitation of Actions Act 1974 (Q) and s 374 of the Land Act 1962 (Q)
provide that title to land by adverse possession against the Crown can
no longer be claimed; and the Act operates to validate claimed
common law title; hence it would only assist those possessed of land
under colour of a title to land known to the common law: cf a
communal native title originating in native custom which may have
been recognised by the common law (188). [He referred to the Land
Act 1910 (Q), s 203 (inserted by the Land Acts and Another Act
Amendment Act 1943) and the Land Act 1962 (Q), s 374.] Title was
not adverse until the Crown had full beneficial ownership (189). The
application of the Act to land in Australia which had not been dealt
with by the Crown was based on the assumption that the Crown had
full beneficial title to all waste lands in New South Wales from
original settlement (190). That view was rejected in Mabo [No 2].
Hence time could not run against the Crown under the Act at least
until native title had been extinguished. Where it is extinguished by
the grant of a lease to another, time will not run under the Act until the
Crown's reversion falls into possession (191). Whether a lessee went
into possession or paid rent is not relevant because he became liable
for rent (192). A conclusion that possessory title could be acquired
under the Nul/um Tempus Act by occupation under native title would
mean that by 1848 all land within the original limits of New South
Wales of which possession had been retained by Aboriginal peoples
was thereafter held by them under a statutory title. Only land the
subject of a grant at that time would be exempted. If such a title were
to be upheld now, it would be tantamount to concluding that
Aboriginal title could only have been effectively extinguished in
Queensland before 1848 and would render the operation of all
subsequent grants there otiose unless they were treated as granting
titles which expropriated that conferred by the Nul/um Tempus Act.
Colonial legislatures could affect the operation of Imperial statutes
made applicable by the Australian Courts Act. The Queensland
Parliament had power to expropriate titles granted pursuant to the
Nul/um Tempus Act. No express expropriation could have occurred
because no one could have been aware that by 1848 the Aboriginal
peoples had obtained statutory title to all the land they then occupied.
If it is now found that this was the case, no sensible effect can be
given to provisions of various Queensland Acts which have authorised
grants in fee simple or of lease unless they are treated as having
granted titles which superseded and destroyed earlier titles in the same
(188) See Nul/um Tempus Act, ss 1,5.
(189) Nul/um Tempus Act, ss I, 3; Lightwood, Time Limit on Actions (1909), Ch I, s X.
(190) Attorney-General (NSW) v Love [1898] AC 679 at 684.
(191) Lightwood, The Time Limit on Actions (1909), p 150.
(192) Attorney-General (NSW) v Love [1898] AC 679 at 686; Lightwood, Time Limit on
Actions (1909), p 144.
land. The position is no different from the propositIOn that titles
granted under those Acts extinguished native title rights which are now
understood to have been recognised by common law but were not
suspected when the Acts were passed.
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H B Fraser QC (with him P L O'Shea and J K Bond), for the QUEENSLAND
respondent Comalco. [Submissions which repeat arguments presented
by other respondents have been omitted.] The Wik submissions
assume that one or more of the enactment of the Comalco Act, the
making of the Comalco Agreement, or the granting of ML 7024
extinguished the appellants' native title. They do not allege that the
Comalco Act is invalid. We contend that ss 2 and 3 of the Comalco
Act have the effect that the Comalco Agreement must be treated as
though it were an enactment and thus that, no objection can be taken
to its validity and neither the making of the Agreement nor the grant
of ML 7024 were wrongful for denial of procedural fairness, breach of
trust or fiduciary duty, or as resulting in unjust enrichment. The Wik
response relies on statements by Dunn J in the Comaleo Case (193)
that the Comalco Act operated for a specific limited purpose, to
override specific legislative impediments of making the Agreement.
That was one purpose, but that does not resolve the question. [He
referred to the Comalco Case (194); West Lakes Ltd v South
Australia (195); Institute of Patent Agents v Lockwood (196);
Caledonian Railway Co v Greenock & Wemyss Bay Railway Co (197);
Sankey v Whitlam (198); and Campbell "Legislative Approval of
Government Contracts" (199).] If the Comalco Agreement has the
status and effect of an Act of Parliament, no objection can be taken to
its validity except ultra vires (200). British Railways Board v
Pickin (201) held that the validity of an Act could not be impugned on
the ground of its having been obtained by fraud. The same principles
prevent the court from inquiring into the circumstances of the making
of the Comalco Agreement. Hoani Te Heuheu Tukino v Aotea District
Maori Land Board (202) is closer to this case. It was held that the
court could not go behind what had been enacted. The validity of the
Comalco Agreement cannot be challenged and damages or other relief
cannot be obtained for alleged breaches of duty resulting in or
constituted by its making or in respect of benefits flowing from it. To
hold otherwise would take away benefits conferred by Parliament on
(\93) [1976] Qd R 231 at 260.
(\94) [1976] Qd R 231 at 237, 247-248.
(\95) (1980) 25 SASR 389 at 391, 404, 415.
(\96) [1894] AC 347 at 359-361, 365, 367.
(197) (1874) LR 2 Sc & Div 347 at 348-349, 350.
(\98) (1978) 142CLR 1 at31, 77, 89,106-107.
(\ 99) Australian Law journal, vol 46 (\ 972) 217 at 218.
(200) Foster v Alon; [1951] VLR 481 at 483-484, 485.
(201) [1974] AC 765.
(202) [1941] AC 308.
48 HIGH COURT [1996
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the parties to the Agreement. Any limitation must come from
Parliament. ML 7024 does not have the force or status of an Act (203).
But cI 8 of the Agreement obliged the State, upon satisfaction of a
condition, to grant the lease and cl Il(c) provided that from grant
Comalco was entitled to occupy the lease area and exercise all rights
and powers to be granted. The Agreement also imposed obligations on
Comalco. If Parliament directs or authorises a particular thing, it
cannot be wrongful (204). Where Parliament has directed the grant of
a lease, no action lies that the grant was wrongful or in breach of duty
and no other relief should be granted in consequence of the grant. The
terms of the Comalco Agreement are not merely permissive (205).
Peinkinna's Case (206) is persuasive authority that the Comalco
Agreement and ML 7024 are immune from direct or indirect
challenge. Drummond 1's reasoning and conclusions upon these
questions were correct.
G A Thompson, for the respondent Pechiney, adopted the
submissions for the State of Queensland and Comalco. [He also
referred to Ward v Williams (207); Commissioner of State Revenue
(Vict) v Royal Insurance Australia Ltd (208); Kioa v West (209);
Annetts v McCann (210); Builders Registration Board (QJ v
Rauber (211); Re Canadian Forest Products (212); Gardner v Dairy
Industry Authority of New South Wales (213); Attorney-General v
Lamplough (214); and Acts Interpretation Act 1954 (Q), s 14(2).] If
there was no statutory direction to the Premier to make the Aurukun
Agreement, in doing so he was acting legislatively in the sense that he
was authorised by the statute as a delegate of Parliament and within its
control (215). The main difference between the Aurukun Associates
Agreement and the Comalco Agreement was that scheduled to the
former was a further agreement, the Access Agreement.
D J S Jackson QC (with him J D McKenna), for the respondent
(203) Peinkinna v Corporation of the Director (if Aboriginal and Islanders Advancement
(unreported; Supreme Court of Queensland (Full Court); 5 October 1976);
Peinkinna's Case (1978) 52 ALJR 286; 17 ALR 129.
(204) Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR I HL 93 at 112;
Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1011.
(205) Halsbury's Laws of England, 4th ed, vol 1(1), par 206; In re Earl of WilTon's
Sellied Estates [1907] I Ch 50 at 5152, 55.
(206) (1978) 52 ALJR 286; 17 ALR 129.
(207) (1955) 92 CLR 496.
(208) (1994) 182 CLR 51 at 63-64,85,97.
(209) (1985) 159 CLR 550 at 609.
(210) (1990) 170 CLR 596 at 598.
(211) (1983) 57 ALJR 376 at 385; 47 ALR 55 at 71-72.
(212) (1960) 24 DLR (2d) 753 at 759.
(213) [1977] I NSWLR 505 at 519.
(214) (1878) 3 Ex D 214 at 229.
(215) Queensland Medical Laboratory v Blewell (1988) 84 ALR 615 at 634-636; The
Commonwealth v Grunseit (1943) 67 CLR 58 at 82.
pastoralists, adopted the submissions for the State of Queensland upon
questions IB and lc. [He also referred to Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (216); Cooper Brookes
(Wollongong) Pty Ltd v Federal Commissioner of Taxation (217);
Mills v Meeking (218); Attorney-General (NSW) v Brewery Em-
ployees' Union of NSW (219); Camberwell and South London Building
Society v Holloway (220); Progressive Mailing House Pty Ltd v Tabali
Pty Ltd (221); Addiscombe Garden Estates Ltd v Crabbe (222); and
Commissioner of Crown Lands v Page (223).] [GUMMOW J. Do
pastoral lessees assume a covenant for quiet enjoyment?] As I
apprehend it. [TOOHEY J. One would have to be careful about
approaching it on the footing that the document or the grant is of a
lease and then as it were attributing a whole range of characteristics,
rather than perhaps looking at it the other way around, identifying the
characteristics first and then reaching some conclusion as to whether it
is truly a lease in the sense of conferring exclusive possession upon the
lessee.]
D Graham QC, Solicitor-General for the State of Victoria, (with
him M Sloss), for the Attorney-General for that State, intervening in
relation to questions 1Band 1C, submitted that the answers to those
questions and the reasons for judgment of Drummond J were correct.
If the Court does not accept those answers it should not express a final
and general view about the effect upon native title of pastoral leases or
leases for pastoral purposes in Australia. Legislation passed by the
Victorian Parliament since Separation has not provided for leases for
pastoral purposes on the scale of those granted in the larger States.
Although large holdings were assembled in some areas of Victoria, the
Land Acts over the years sought to encourage the creation of holdings
on a relatively modest scale and the occupation and improvement of
those holdings by those to whom they were granted. Many different
forms of leasehold tenure have been provided for, including perpetual
leases for agricultural and grazing purposes. The terms of those
categories have varied over the years. Leases of rural land in Victoria
did not exhibit many of the characteristics on which the appellants rely
to found the argument that a "pastoral lease" is not a true lease. For
example, no lease for pastoral purposes granted in Victoria since
Separation appears to have included a reservation of the rights of
Aboriginals in respect of the Crown lands the subject of the lease.
(216) (1920) 28 CLR 129 at 161-162.
(217) (1981) 147 CLR 297 at 304-305.
(218) (1990) 169 CLR 214.
(219) (1908) 6 CLR 469 at 531.
(220) (1879) 13 Ch D 754 at 759.
(221) (1985) 157 CLR 17 at 51.
(222) [195811 QB 513 at 524-525.
(223) [196012 QB 274 at 287, 289, 291.
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It is accepted by all that the grant of a fee simple absolute
extinguishes native title. But the appellants appear to submit that the
grant of an estate other than a fee simple absolute does not have that
effect and that the Crown may grant a leasehold interest emanating
from its radical title without concurrently creating a reversionary
interest. Those submissions overlook the fact that common law
recognised freehold estates other than a fee simple absolute and the
fact that, upon the creation of such an estate, a further estate or interest
on the part of the grantor came into existence. Estates in reversion
arose in the case of the grant of certain freehold estates. Where a grant
of a freehold estate for life was made, the grantor retained an estate in
reversion (224). The same position arose where a grant of an estate in
fee simple was intended to be made but the essential phrase "and his
heirs" was not included in the grant after the name of the grantee. If
that phrase were omitted or an incorrect form of words were used, the
grantee obtained only a life estate and there would be an estate in
reversion in the grantor. The latter rule applied in relation to land
under general law in Australia but, following its modification in
England, it has been modified in all Australian jurisdictions except
South Australia (225). Common law also recognised the grant of a
determinable fee simple and a fee simple upon condition (226). The
grantor of a determinable fee simple retains a possibility of reverter
and of a fee simple upon condition, a right of re-entry, The right to
dispose of a possibility of reverter and a right of re-entry as distinct
interests is preserved by statute (227), Early in Victoria it was not
uncommon for Crown grants to contain conditions restricting the
grantee's ability to use the land otherwise than for specified purposes,
eg, a school, a church, municipal market or abattoirs. Whether the
restriction caused the estate to be a determinable fee simple or a fee
simple upon condition depended on the language. Section 42(2)(a) of
the Transfer of Land Act 1958 (Vict) recognises that land on the
Register shall be subject to "the reservations exceptions conditions
and powers (if any) contained in the Crown grant of the land"
notwithstanding that they are not specially recorded as encumbrances.
A grant of a freehold interest other than a fee simple absolute pursuant
to which an interest held by the grantor is concurrently created is well
known to common law, Such a grant in Australia would have
extinguished native title, No distinction can properly be drawn
(224) Blackstone's Commentaries, 17th ed (1830), vol 2, p 175.
(225) See Bradbrook, MacCallum and Moore, Australian Real Property Law (1991),
pp 62-63.
(226) Halsbury's Laws of England, 1st ed, vol 24, pp 168-171; Challis, Law of Real
Property, 3rd ed (1911), pp 251-262; Megarry and Wade, Law of Real Property,
5th ed (1984), pp 67-76, 275-279; Cheshire and Burn, Modern Law of Real
Property, 13th ed (1982), pp 341-343; 345-357; Bradbrook, MacCallum and
Moore, Australian Real Property Law (1991), pp 67-69.
(227) eg, Property Law Act 1958 (Viet), s 19.
between such a grant of a freehold estate and such an interest, and the
grant of a leasehold interest and the concurrent creation of a reversion
in the Crown as lessor. In both the grant and the grantee's right of
exclusive possession are inconsistent with continued native title.
R J Meadows QC, Solicitor-General for the State of Western
Australia, (with him C A Wheeler QC and K M Pettit), for the
Attorney-General for that State, intervening.
R J Meadows QC addressed upon the State agreements issues. It
appears to have been assumed that an action may be maintained for
breach of fiduciary duty and breach of procedural fairness in relation
to impairment or extinction of native title. Those are large assumptions
which depend upon native title having survived the grant of pastoral
leases. Each, particularly the fiduciary assumption, depends on
rejection of the decision in Mabo [No 2] (228) that extinguishment of
native title (Racial Discrimination Act 1975 (Cth) apart) is not
wrongful. The procedural fairness issue assumes there was a duty to
hear native title holders notwithstanding that those who were putting
the agreements in place would not have been conscious of native title.
The assumptions carry the consequence that every extinguishment of
native title may have been in breach of procedural fairness and capable
of being set aside and in breach of fiduciary duty and remediable. That
includes the grant of fee simple, leasehold, mining tenements and the
building of roads, bridges, dams etc. Government agreements are used
for projects which are to involve great expenditure. The purpose of
each Agreement Act is to facilitate projects free of legal impediment.
The developer requires, and the State gives, statutory assurances that
what is proposed is lawful and that the parties' rights and obligations
will be stable and binding. The assumptions the Court is asked to
make upset those assurances to the point where titles could be void,
agreements invalid and a developer could be called upon to account
for profits made over several decades: For many years most major
resource development in Western Australia has proceeded by
government agreement. Mining and petroleum ventures are often in
remote areas. It is necessary to deal directly with the State to ensure
the co-operation and co-ordination of all government agencies for the
provision of facilities. It is necessary that agencies and Ministers give
undertakings about the way statutory discretions will be exercised.
That cannot be done without further statutory authority (229).
Statutory authority is also required to resolve doubts about the
(228) (1992) 175 CLR 1 at 15-16.
(229) South Australia v The Commonwealth (1962) 108 CLR 130 at 141; The Amphitrite
[192112 KB 500.
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enforceability of some provisions of State agreements (230). It is often
necessary to alter or disregard certain State legislation for the purposes
only of the project (231). Developers require certainty of title, long
term security of tenure and stability of rules before making vast
financial commitments. The precise form of ratification or approval is
not significant. Following concern about the ramifications of Sankey v
Whitlam (232), the Government Agreements Act 1979 (WA) was
enacted to apply to all such agreements. They are intended to have
legislative effect at least so far as they alter statutes and provide that
the agreement is to have statutory force. The purpose of the Act is to
facilitate the execution, implementation and completion of projects in
accordance with the agreement notwithstanding any law or statute
which might be an impediment. Legislative approval or ratification
give an agreement full effect and operation in accordance with its
terms notwithstanding contrary law. It cannot do so yet leave the
parties liable to suit for the act of entering into the agreement. Entry is
specifically authorised or ratified by Parliament and cannot be
regarded as wrongful or be challenged or enjoined. [He referred to the
Interpretation Act 1984 (WA), s 18; Miller v The Common-
wealth (233); Federated Engine Drivers and Firemen's Association of
Australasia v Broken Hill Pty Co Ltd (234); Pearce and Geddes,
Statutory Interpretation in Australia (235).]
The remedy for breach of procedural fairness is the avoidance or
quashing of the decision. Where relief is sought by declaration rather
than certiorari, it is granted in the expectation that it will be treated as
tantamount to quashing Ainsworth v Criminal Justice Com-
mission (236). It is contrary to the intention of Parliament that the act
of execution of a government agreement be void or voidable. All
conduct within the contemplation of the Act, including the prior
execution of the agreement, is rendered lawful. Where execution for
the State follows the enactment, Parliament intended the future
execution of the agreement to be approved or ratified. If the Executive
has a discretion whether to execute the agreement, the act of execution
is prospectively sanctioned. The grant of a lease, contemplated by the
authorised or ratified agreement, cannot be wrongful by reason of its
grant.
Fiduciary duty is relevant to whether native title is extinguished by
the grant of a pastoral lease in that it is contended that the Crown was
(230) New South Wales v Bardolph (1934) 52 CLR 455 at 496, 502-503, 508, 514;
Australian Alliance Assurance Co Ltd v Goodwyn, Insurance Commissioner
[1916] QSR 135.
(231) Nicholas v Western Australia [1972] WAR 168.
(232) (1978) 142 CLR I.
(233) (1904) I CLR 668 at 674.
(234) (1911) 12 CLR 398 at 439.
(235) 3rd ed (1988), pp 29-31.
(236) (1992) 175 CLR 564 at 581.
187 CLR l] OF AUSTRALIA 53
under a fiduciary duty not to extinguish native title and, if it did so,
that it holds the reversion on trust or is otherwise liable for breach. No
issue involves an act which has extinguished native title without
statutory authority. Rights conferred by a pastoral lease, if authorised,
extinguished native title whether or not a fiduciary duty existed and,
because the lease was issued under sanction of statute, no suit can be
maintained for breach of fiduciary duty. If the conferred rights are not
authorised, native title has not been extinguished and there is no
breach of fiduciary duty. Hence the only point at which fiduciary duty
of the Crown in respect of native title may arise is in the question of
whether the Land Acts should be interpreted by reference to such a
duty. The role of fiduciary duty is limited to questions of whether
under the common law of Australia in 1910 and 1962 the Crown owed
a duty to traditional owners not to extinguish native title by grant of
pastoral leases; and whether any duty affected the interpretation of the
Acts of 1910 and 1962 so that grants of pastoral leases did not
extinguish native title. Mabo [No 2J held that extinguishment of native
title is not wrongful. Extinguishment in breach of fiduciary duty would
be wrongful. The issue of fiduciary duty was before the Court (237).
Overseas authority does not support the contention that there is a
fiduciary duty binding the Crown not to disturb native title. A
contention that it is beyond legislative competence to authorise
extinguishment is contrary to Mabo [No 2J (238); Western Australia v
The Commonwealth (239); and Union Steamship v King (240). The
Court should rule that there has never been an enforceable fiduciary
duty binding Parliament not to exercise its powers or the Crown not to
exercise statutory or prerogative powers inimically to rights of native
title, at least in the absence of promise or undertaking (241). If there
may be a fiduciary duty not to extinguish, its existence cannot affect
the construction of the Land Acts of Queensland or Western Australia.
In Western Australia the legislature has specifically addressed the
issue of Aboriginal access to land and the prospect of exclusion and
has enacted a particular solution. The history of pastoral lease
regulation in Queensland shows that the question of access by
traditional owners influenced the content of legislation. In view of that
history, it cannot be said that a fiduciary duty arose from the identical
concerns and should lead to an interpretation to the effect that
dispossession was never authorised by the statutes. Provisions for
Aboriginal access in relation to pastoral leases are not true
reservations.
C A Wheeler QC. Native title exists only as a burden on an interest
(237) Mabo [No 2] (1992) 175 CLR I at 11-l2, 15-16.
(238) (1992) 175 CLR I at 64, 110, 138, 195.
(239) (1995) 183 CLR 373 at 423, 481, 492.
(240) (1988) 166 CLR I at 9-10.
(241) Mabo [No 2] (1992) 175 CLR I at 60.
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of the Crown in land, not on the interest of any other land holder. It
could survive the grant of a pastoral lease only if a sufficient interest
of the Crown were reserved or excepted from the grant. If the access
to the land by Aboriginal people were by grant of licence from, or
obligation imposed by statute or covenant upon, the lessee, native title
would not survive. No relevant interest to which native title could
attach was reserved or excepted from grants of pastoral leases. If a
grantor intends to reserve a right over the property granted it must be
reserved expressly in the grant (242). No express reservation of
anything described as native title rights and interests is made in
pastoral leases because it was assumed that no such rights existed.
Some rights of access as exercised may be similar to some native title
rights. The Crown reserved no such rights from its grant. Access for
sustenance under a pastoral lease is no more an interest in land than
access accorded to miners or government officials. It is a mere licence,
and no reservation or exception is needed to sustain it. If it can be
regarded as a profit a prendre, such an interest is not a reservation or
exception but operates by regrant or covenant from the lessee (243).
The form of lease is consistent with the provisions for Aboriginal
access being in the nature of covenant rather than true reservation or
exception. In Western Australia the lease set out the "powers,
reservation and conditions" before the habendum. There is no
question of reservation or exception within the grant of a pastoral lease
for which Aboriginal access is provided by statute (244). There is a
mere statutory obligation, capable of being expanded or removed at
any time, to provide access. Even if the "reservation" in favour of
Aboriginal access could be considered as a true reservation or
exception to the Crown, the Western Australian provisions for access
were so limited and the rights conferred on lessees so large that the
lease with the reservation would be inconsistent with continuance of
native title. The lessee's rights included one to enclose or improve any
of the land which would end even limited access for sustenance.
Moreover access extended to Aboriginal people regardless of whether
they had ever held native title rights; it applied generally in favour of
"aboriginal natives".
To establish a clear and plain intention to extinguish when an
interest is granted in Crown land under statute, its objects and terms
must be examined, with particular reference to whether the law creates
a regime of control consistent with native title; in the case of a grant to
third parties, the nature of the interest or estate, which is a question of
law; and in the case of the Crown's appropriation by itself, of the
nature of appropriation and use or the purpose of appropriation and of
(242) Wheeldon v Burrows (1878) 12 Ch D 31.
(243) Doe d Douglas v Lock (1835) 2 Ad & E 705 [Ill ER 271]; Woodfall, Landlord
and Tenant, 12th ed (1881), pp 73 et seq, 161 et seq.
(244) eg, Land Act 1933 (WA). s 106.
whether third party rights or assumed acquiescence arise. In relation
only to this category of extinguishment, questions of fact may require
investigation. In no category is the subjective intention of the
Executive or Parliament relevant (245). The effect of a pastoral lease
on native title is resolved by the propositions that a pastoral lease is a
lease, a lease confers exclusive possession and exclusive possession by
the lessee is wholly inconsistent with rights of native title. A Crown
grant means what it says. From the moment of execution a grantee and
all others dealing with him can ascertain from its terms the rights that
exist over the granted land. If the grantor intends to reserve a right it
must be reserved expressly in the grant (246). The Crown must be held
strictly to its grant (247). Native title is not derived from the Crown
and is vulnerable to extinguishment. If the appellants are right no land
could be considered to be land upon which native title had been
extinguished without factual inquiry, ranging from the brief and simple
to the prolonged and complex. Where no question of validity arises,
the only relevant questions concern the nature of the interest granted
and whether it is inconsistent with native title. The incidents of the
grant are determined by ordinary rules of construction and law. We
adopt Queensland's submissions on this issue. It is impossible to
assume that, in 1915 and 1974 (when the leases were issued) or in
1910 or 1962 (when the Queensland Land Acts were passed), the
Executive and legislature did not fully understand that the grant of a
"lease" conferred exclusive possession. A right of a land holder to
exclude entry and activity on the land by traditional owners is wholly
inconsistent with rights of native title. In determining whether a Crown
grant to a third party is inconsistent with native title, failure to exercise
the right of exclusive possession and any absence of practical
inconsistency or conflict with Aboriginal usage are irrelevant to
extinguishment. Failure to exercise rights as a lessee is no different
from failure as a freeholder.
B M Selway QC, Solicitor-General for the State of South Australia,
(with him E E David), for the Attorney-General for that State,
intervening. The common law rule for the recognition of aboriginal
law in settled colonies was unable adequately to explain actual
colonial practice where British settlers established autonomous
communities in already inhabited lands held by the Crown. In the
former Australian, New Zealand, West African and North American
colonies the issue was resolved by applying some of the principles for
"conquered" territories to the settled colony. This involved a
recognition by common law of some aboriginal customary law.
Differences in the extent of recognition of native customary law in
(245) Mabo [No 2] (1992) 175 CLR I at 68; Western Australia v The Commonwealth
(1995) 183 CLR 373 at 417-418, 422.
(246) Wheeldon v Burrows (1878) 12 Ch D 31.
(247) Western Australia v The Commonwealth (1995) 183 CLR 373 at 439.
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these fonner colonies can be explained only by their different
historical and constitutional development. The initial recognition by
Marshall CJ of native customary law in the United States was
specifically based upon the history of relations between the indigenous
peoples and the settlers in the United States (248). See also as to New
Zealand Te Runanga 0 Muriwhenua Inc v Attorney-General
(NZ) (249). Common law was applied in a settled colony only to the
extent that it was "reasonably applicable to the circumstances of the
colony". As the nature of native title can differ between colonies, so
too can the Crown's response. Hence the extent to which common law
in relation to native title and customary aboriginal law was received
differed in each colony (250). This analysis is appropriate in the
eastern States of Australia where there were forty years of Crown
practice before the date at which common law was received
(Australian Courts Act 1828 (Imp) (9 Geo IV c 83), s 24) (251).
(248) Johnson v Mcintosh (1823) 21 US 543 at 572.
(249) [1990] 2 NZLR 641 at 644-645.
(250) Mabo [No 2J (1992) 175 CLR I at 79-80, 87; R v Nicknl (unreported; Supreme
Court of Canada; 25 April 1996), per Cory J.
(251) In relation to Indian customary law in the United States, he referred to Cohen,
Handbook of Federal Indian Law (1942), Ch 3; Berman, "The Concept of
Aboriginal Rights in the Early Legal History of the United States", Buffalo Law
Review, vol 27 (1978) 637; Johnson v Mcintosh (1823) 21 US 543 at 587; cf
United States Railway v Santa Fe Pacific Railroad Co (1941) 314 US 339 at 347;
County of Oneida v Oneida Indian Nation (1985) 470 US 226 at 247-248; Tee-
Hit-Ton Indians v United States (1954) 348 US 272 at 279-285; Cherokee Nation
v Georgia (1831) 5 Peters I; Worcester v Georgia (1832) 6 Peters 5I5; National
Farmers Union Inmrance Co v Crow Tribe (1985) 471 US 845 at 852-853; Lone
Wolf v Hitchcock (1903) 187 US 553 at 566; Kennedy v Becker (1916) 241 US
556 at 561-564; Ex parte Crow Dog (1883) 109 US 556 at 571; United States v
Wheeler (1978) 435 US 313 at 327; United Slates v McBratney (1881) 104 US
621; Williams v Lee (1959) 358 US 217 at 219-220; Oliphant v Squamish Indian
Tribe (1978) 435 US 191; Merrion v Jicarilla Apache Tribe (1982) 455 US 130
at 149; Talton v Mayes (1896) 163 US 376 at 382-384; Elk v Wilkins (1884) 112
US 94; United States v Wong Kim Ark (1896) 163 US 649 at 693; Santa Clara
Pueblo v Martinez (1978) 436 US 49 at 58; United States v Kagama (1886) 118
US 375 at 384-385; Lane v Pueblo of Santa Rosa (1919) 249 US 110 at 113;
Fellows v Blacksmith (1856) 60 US 366 at 372; United States v New York Indians
(1899) 173 US 464; United States v Joseph (1876) 94 US 614; cf United States v
Sandoval (1913) 231 US 28 and Alaska Pacific Fisheries Co v United States
(1918) 248 US 78. In relation to native customary law in Canada, he referred to
Cumming & Mickenberg, Native Rights in Canada, 2nd ed, (1972), pp 54-58;
Slattery, "Understanding Aboriginal Rights" Canadian Bar Rev. vol 66 (1987)
727; Calder v Attorney-General (British Columbia) [1973] SCR 313 at 401, 404-
405 (1973) 34 DLR (3d) 145 at 208, 210-211; Guerin v The Queen [1984] 2 SCR
335 at 345,349-355; (1984) 13 DLR (4th) 321 at 334, 357-361; Blueberry River
Indian Band v Canada (1995) 130 DLR (4th) 193 at 193, 199-200, 208-209, 219;
Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 519-520, 521-525,
532-533, 566-571, 595, 640-643, 661-667, 670-672, 711, 727; Sparrow v The
Queen [1990] I SCR 1075 at 1098-1103, 1108, 114, 1119; (1990) 70 DLR (4th)
385 at 401-404, 408, 413, 416-417; R v Nikal [1996] 2 SCR 1013; (1996) 133
DLR (4th) 658; R v Lewis [1996] 2 SCR 921; (1996) 133 DLR (4th) 700; R v
Australian native title is sui generis and differs from that in other
jurisdictions. This is the result of the different cultural and social
(251) cont
White and Bob (1964) 50 DLR (2d) 613 at 617-618; Francis v The Queen [1956]
SCR 618 at 628, 631; (1956) 3 DLR (2d) 641 at 647, 652; R v Badger [1996]
2 SCR 771; (1996) 133 DLR (4th) 324; Simon v The Queen [1985] 2 SCR 387 at
400, 404, 410-411; (1986) 24 DLR (4th) 390 at 401, 404, 409; Sioui v Quebec
[1990] I SCR 1025 at 1043-1045, 1066-1072; (1990) 70 DLR (4th) 427 at 441,
442, 459-463; Re Kitchooalik and Tucktoo (1972) 28 DLR (3d) 483 at 488; Re
Wah-Shee (1975) 57 DLR (3d) 743 at 745; Casimel v Insurance Corporation of
British Columbia (1993) 106 DLR (4th) 720; and R v Isaac (1975) 13 NSR (2d)
460. In relation to native customary law in New Zealand, he referred to Forsylh,
"Cases and Opinions on Constitutional Law" (1869), p 27; Gilling, "The
Queen's Sovereignty Must be Vindicated", New Zealand Universities Law Rev,
vol 16 (1994) 136; Keith, "The Treaty of Waitangi in the Courts", New Zealand
Universities Law Rev, vol 14 (1990) 37, at pp 38-40; Re the Ninety Mile Beach
[1963] NZLR 461 at 467 et seq; Tamihana Korokai v Solicitor-General (NZ)
(1912) 32 NZLR 321 at 354; New Zealand Maori Council v Attorney-General
(NZ) [1987] I NZLR 641 at 670-671, 690-693; R v Symonds [1847] NZPCC 387
at 390; Nireaha Tamaki v Baker [1901] AC 561 at 574, 578-579; Te Runanganui
o Te lka Whenua Inc Society v Attorney-General (NZ) [1994] 2 NZLR 20 at 23-
24; Faulkner v Tauranga District CO/wcil [1996] I NZLR 357 at 363, 365; Te
Weehi v Regional Fisheries Officer [1986] I NZLR 680 at 690-691; Te Rurnanga
o Muriwhenua vAG [1990] 2 NZLR 641 at 654-655; cf Waipapakura v Hempton
(1914) 33 NZLR 1065; Te Runanga 0 Wharekauri Rekohu v Attorney-General
(NZ) [1993] 2 NZLR 301 at 306; Ngai Tahu Maori Trust Board v Director-
General of Conservation [1995] 3 NZLR 553 at 559; Hoani Te Heuheu Tukino v
Aotea District Maori Land Board [1941] AC 308 at 324-327; New Zealand Maori
Council v Attorney-General (NZ) [1994] I NZLR 513 at 515; cfTe Runanganui 0
Te lka Whenua Inc Society v Attorney-General (NZ) [1994] 2 NZLR 20 at 25;
New Zealand Maori Council v Attorney-General (NZ) [1987] I NZLR 641 at 664,
682-683, 691-692, 703; Attorney-General (NZ) v New Zealand Maori Council
[No 2J [1991] 2 NZLR 147 at 149; New Zealand Maori Council v Attorney-
General (NZ) [1994] I AC 466 at 473-475; Ngai Tahu Maori Trust Board v
Director-General of Conservation [1995] 3 NZLR 553 at 560-561; New Zealand
Maori Council v Attorney-General (NZ) (unreported; High Court of NZ,
McGeehan J; 29 March 1996); Hineiti Rirerire Arani v Public Trustee [1920] AC
198 at 204-205; Berkett v Taurunga District Court [1992] 3 NZLR 206 at 212-
213; New Zealand Maori Council v Attorney-General (NZ) [1987] I NZLR 641
at 670; Native Land Act 1909 (NZ) Pi IV; and Maori Affairs Act 1953 (NZ),
s 155. In relation to native customary law in former West African colonies, he
referred to Roberts-Wray, Commonwealth and Colonial Law (1966), pp 782-803;
Ollennu, "The Changing Law and Law Reform in Ghana", Journal of African
Law, vol 15 (1971) 132; Asante, Property Law and Social Goals in Ghana (1975),
pp 29-81; Daniels, "The Interaction of English Law with Customary Law in West
Africa", International and Comparative Law Quarterly, vol 13 (1964) 574;
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399; Idewu Inasa v
Sakariyawo Oshodi [1934] AC 99 at 105; Oshodi v Balogun [1936] 2 All ER
1632 at 1633, 1638; Sunmonu v Disu Raphael [1927] AC 881 at 883-885;
Sakariyawo Oshodi v Dakalo [1930] AC 667 at 670, 668-669, 670; Idewu Inasa v
Sakariyawo Oshodi [1934] AC 99 at 101; Oyekan v Adele [1957] I WLR 876
at 880, 882-883; [1957] 2 All ER 785 at 788, 790; Attorney-General (Southern
Nigeria) v Holt [1915] AC 599 at 608-609; Amodu Tijani v Secretary, Southern
Nigeria [1921] 2 AC 399 at 403-404; Nii Amon Kotei v Asere Stool [1961] GLR
492 at 495; and Eshugbayi Eleko v Govt of Nigeria [1931] AC 662 at 671-673.
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organisation of aboriginal inhabitants and the different history of the
relationship between the Crown and the aboriginal inhabitants in
Australia compared with other jurisdictions (252). The final and
ultimate source of the common law relating to Australian native title is
the judgments of this Court. Cases from elsewhere should be used with
caution, recognising that differences between the decisions in various
jurisdictions are to be expected (253). In relation to the continuing
occupation test, he referred to Kanak v National Native Title
Tribunal (254).
D M J Bennett QC (with him R J Webb), for the Attorney-General
for the Northern Territory, intervening, referred to the Northern
Territory Act 1863 (SA) and regulations of 26 November 1863; the
Northern Territory Land Act 1872 (SA), ss 4, 13, 74, 75 and the
Pastoral Regulations of 9 January 1873, regs 2, 8; the Northern
Territory Crown Lands Act 1882 (SA), ss 6, 59, 60, 64, 75 and
regulations of 29 February 1891, regs 39, 48; the Northem Territory
Land Act 1899 (SA), ss 1, 5, Pt III (ss 23-25, 79, 89), the Crown
Lands Ordinance 1912 (North Australia), ss 16, 17,22,27; the Crown
Lands Ordinance 1924 (North Australia), ss 2, 25, 26(e), 28, 39,40,
78, 82 and regulations, reg 48(1); the Crown Lands Ordinance 1927
(Central Australia), ss 2, 3, 20, 21, 23, 34, 35, 102, 106, 111 and
regulations thereunder, reg 48(1); the Crown Lands Ordinance 1964
(NT), ss 1(2), 4. [His submissions concerning extinguishment,
inconsistency, the nature of a pastoral lease, profits a prendre,
exclusive possession, concurrent exercise of rights on pastoral leases,
reversions and fiduciary duties were substantially the same as those
made on behalf of the States. In relation to the extinguishment of
common law rights by the substitution of statutory rights, he referred
to Mayor of New Windsor v Taylor (255), and, in relation to fiduciary
duties, to Registrar of Accident Compensation Tribunal v Federal
Commissioner of Taxation (256); Slattery, "First Nations and the
Constitution: A Question of Trust" (257); Finn, Fiduciary Obli-
gations (258); Canada v Ontario (259); and Mutasa v Attomey-
General (260). He also mentioned the Aboriginal Land Rights
(252) Maho INo 2J (1992) 175 CLR I at 108; Coe v The Commonweallh (1979) 53
ALJR 403 at 407-408; 24 ALR 118 at 128-129.
(253) cf Re Waanyi (1995) 129 ALR 100 at 114-115.
(254) (1995) 61 FCR 103 at 131-132; cf Re Waanyi (1995) 129 ALR 118 at 133-134.
(255) (1899) AC 41 at 45.
(256) (1993) 178 CLR 145 at 162-164.
(257) Canadian Bar Rev, vol 71 (1992), 261, at pp 289-290.
(258) (1977), Ch 2.
(259) (1910) AC 637 at 646.
(260) (1980) QB 114 at 119-120.
(Nonhern Territory) Act 1975 (Cth).] Leave to appeal to the Supreme
Court has been granted in Delgamuukw v British Columbia (261).
WSojronoffQC, in reply. Mabo [No 2] (262) did not determine the
effect of pastoral leases on native title. The declaration was cast to
ensure that it "could not give rise to any possible implication affecting
the status of land which is not the subject of the declaration in par 2 of
the order" (263). If it were otherwise the appeal in Nonh Ganalanja v
Queensland (264) would have been nugatory. Yet the present question
was described as "fairly arguable" and "plainly arguable" (265).
The Crown's reversion: Under the Land Act 1962 there is no hint of
the need for the Crown to acquire beneficial title to land before the
creation of a statutory pastoral lease or after the expiry of such a lease.
A statutory definition is provided of land that be so granted and, in
Pt III, a statutory procedure is provided for grants. "Crown land" is
land which is not already the subject of a lease or grant of fee simple.
The power and procedures to deal with it are wholly statutory. So too
are the nature of the interests created by a grant and consequences of
the cessation of an interest. The power to grant an interest does not
require an imputation of additional interest in the Crown. The interest
which reverts to the Crown upon termination of the lease gives it
power once again to deal with the land. That ability depends on its
being "Crown land" as defined. Where the owner of a fee simple
grants a lease, the reversion is constituted by an entitlement to recover
"absolute beneficial ownership" because that is the interest the lessor
had before the grant. It does not follow that a person who grants a
lease must have such an entitlement. The Crown does not need an
absolute beneficial interest to deal with "Crown land". "Reversion"
is no more than a term describing the interest a landlord holds pending
termination of the lease (266). The Crown's "reversion" is reflected
in its expectation to recover its power under the Land Act to deal with
the land as "Crown land". Dealing with Crown land, it has dominium
plenum by virtue of the statute's giving it full power to deal with
"Crown land". There is no need to adopt a fiction that it becomes a
beneficial owner. Apart from statute, by attributing radical title to the
Crown, common law invested it with the character of Paramount Lord
and thus enabled it, in the exercise of sovereign power, to grant an
interest in land held of the Crown. The doctrine of tenure should not
be' applied as a postulate which would lead to and justify the mass
disposs::ssion of Aboriginals when there is no need to do so. The
(261) (1994) 109 DLR (4th) 7 [affd sub nom R v Van del Peel [1996] 2 SCR 507;
(1996) 137 DLR (4th) 289-Ed].
(262) (1992) 175 CLR I.
(263) Mabo INo 2J (1992) 175 CLR I at 16.
(264) (1996) 185 CLR 595.
(265) Norlh Ganalanja (1996) 185 CLR 595 at 628 see also at 642-643.
(266) Megarry and Wade. Law of Real Properly, 5th ed (1984), p 44.
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statutory power is sufficient to found a grant for a term without
expansion of radical title. It is not reasonable to impute to the
legislature a clear and plain intention to extinguish native title by the
grant of a pastoral lease, when, at the passing of the 1910 Act, and
certainly the 1962 Act, it was known that a lessee might never enter
into possession; the lease might be forfeited a short time after grant; a
lessee might never comply with obligations under the lease to effect
improvements etc; the lease might end soon after grant by surrender.
Some grants do extinguish native title, eg, an estate in fee simple,
because the clear and plain intention that underlies the grant is to give
an interest in perpetuity free from competing interests. A pastoral lease
is limited in purpose and time. In a lease for a limited time, for one
purpose which is consistent with the continued presence of traditional
occupants on part of the land, there is no need to conclude that native
title is extinguished by grant. It is enough that the Crown granted a
dominant right to occupy and use the land for pastoral activities which
might wholly or partly impair the exercise of native title rights. The
equation of native title rights with common law property rights is inapt
when considering rights alien to common law which may be
manifested in ways not comparable with common law notions of
possession or occupation. No respondent contends that the exercise of
any native title rights is in fact inconsistent with any rights of the
pastoralists.
Assumption that exclusive possession results in extinguishment: If a
pastoral lease confers a right to exclude traditional occupant it does not
follow that native title is extinguished. The recognition of native title
rights by common law must be distinguished from the continued
existence in fact of the customs and traditions constituting them. The
cessation of recognition does not mean that native title ceases as a
matter of fact and cessation of recognition need not be permanent.
Actual extinguishment occurs when it is no longer possible to
recognise native title (267). Until then it is only p o s ~ i b l e to say that
they will not be recognised by law and cannot be protected for the
duration of the inconsistent dominant right.
Fiduciary duty: Queensland's Nonintercourse Act (US) submission
fails to address the consideration that the Nonintercourse Acts
effectively enact principles which Mabo [No 2J recDgnised as common
law principles. Hence there is an equivalent source in Australia of a
trust relationship between the Crown and native title holders. The
Indian Act 1952 (Can) and the Constitution Act 1982 (Can) submission
fails to address the fact that the inalienability of native title except
upon surrender to the Crown is a common law principle independent
of the enactment of the principle in the Native Title legislation. The
appellants do not contend for the existence of a general fiduciary
relationship between the Crown and native title holders but for a basis
(267) Mabo [No 2J (1992) 175 CLR 1 at 60.
or source for such a relationship which may yield an actual
relationship when activated by particular facts and circumstances. The
existence of a general duty to all native title holders in respect of the
grant of leases is not in issue, only whether, in the circumstances of
certain pastoral leases, if the grant would otherwise extinguish native
title, which is inalienable except to the Crown, a fiduciary obligation
may arise which would prevent any enlargement of Crown interests in
disregard of the native title or would fix that enlarged interest with a
constructive trust in favour of the native title holders.
Pastoral leases are sui generis: The pastoral leases in issue were an
invention of a new type of tenure in Australia (268), attracting only
such express or implied incidents as local circumstances, statutes,
regulations and practices allowed.
Possessory title: The Court should not consider the issue of
possessory title except to confirm that it is not within the ambit of the
decision of Drummond J.
Validity of Aurukun Associates Act: The validity of that Act is in
issue on the ground of inconsistency with the Racial Discrimination
Act 1975 (Cth).
No discretion to abstain from executing the Agreements: The
purpose of that Act is the overcoming of legislative impediments to
making a commercial arrangement with Pechiney and its predecessors.
Such a purpose speaks no more of a requirement to consummate the
arrangements than of the creation of a regime in which a final choice
may be made. The word "may" must retain its facultative meaning.
Status of the Agreements as an Act: The immunity of the Acts from
challenge does not necessarily protect the parties to the Agreements
from the consequences of breach of trust or fiduciary duty in
connection with their making. Hoani Te Heuheu Tukino (269) is
distinguishable because the legislation in question was "authorised,
empowered, and directed" to accept an offer.
Acts authorised by legislation cannot be challenged: The contention
that Parliament has directed the grant of the lease is valid only if the
Agreement is for all purposes a statute. Otherwise (assuming the
validity of the Agreement) the State has merely agreed to the grant.
Each gave little more than a transferable right to agist.
Sir Maurice Byers QC, in reply. Until possession occurs no
reversion expectant arises (270). The doctrine of interesse termini was
abolished in Queensland in 1975 by the Property Law Act 1974 (Q),
s 102. Concurrent interests may exist in land at law (271). There was
little difference between the rights created by pastoral leases and
(268) Fry "Land Tenures in Australian Law", Res Judicalae, vol 3 (1948) 158, at
p 159.
(269) [1941] AC 308.
(270) Co Lilt, 19th ed (1832), valli, 270a.
(271) Mason v Clarke [1955] AC 778; Chappelle v The King [1904] AC 127 at 135.
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occupation licences under Pt III of the Land Act 1910 (Q). Crown
leases may be granted in Australia without the Crown's creating a
reversion expectant in itself (272). The Crown may arrogate rights
necessary for the grant which are confined to the term. The term
"reservation" is used in Australia in other than its conventional
conveyancing sense (273). "Reserved" means held back from.
Without the rights held back from the Mitchellton lessees they cannot
be said to have had exclusive possession. Because native title is not an
institution of the common law, even the act of granting an estate in fee
simple does not extinguish it but the exercise of the rights given by
that title may do so.
Cur adv vult
23 December 1996
The following written judgments were delivered:-
TABLE OF CONTENTS OF JUDGMENTS
BRENNAN CJ
Introduction 64
The content of the pastoral leases 67
The rights of a lessee under the pastoral leases 70
Inconsistency between a lessee's rights and the continued
right to enjoy native title 84
The nature of the Crown's reversion 88
Temporary suspension of native title 94
The claims for equitable relief 95
Claims against Comalco, Pechiney and Queensland 98
DAWSON J 100
TOOHEY J
Introduction 10I
The Holroyd River Holding Lease 104
The Mitchellton Pastoral Holding Leases 106
Pastoral leases: general observations 108
Pastoral leases: an historical survey 108
The Land Act 1910 112
The Land Act 1962 114
Leases: exclusive possession 115
Pastoral leases: exclusive possession? 119
Extinguishment 122
Radical title 127
(272) Wade v New South Wales Rutile Mining Co Ply Ltd (1970) 121 CLR 177 at 193.
(273) Wade v New South Wales Rutile Mining Co Ply Ltd (1970) 121 CLR 177 at 194.
GAUDRON J
Non-entry into possession
Extinguishment revisited
The claims against Queensland, Comalco and Aluminium
Pechiney
Answering the questions
Postscript
The issues in the appeal
The claims by the Wik Peoples with respect to bauxite
mining leases granted to Comalco and Pechiney
(Questions 4 and 5)
The arguments with respect to pastoral leases
The Mitchellton land
Dealings with the Mitchellton land
The question asked concerning the Mitchellton
Pastoral Leases (Q Ie)
The terms of the Mitchellton Pastoral Leases
Early Queensland land law
Reservation in favour of Native Title Rights (Q le(a
General provisions of the 1910 Act bearing on pastoral
leases
Particular provisions of the 1910 Act relating to pastoral
leases
The interest conferred by the Mitchellton Pastoral Leases
The Mitchellton Pastoral Leases: the Crown's "reversionary
interest"
Conclusion with respect to the Mitchellton Pastoral Leases:
answer to question Ie
The Holroyd land
Dealings with the Holroyd land
The question asked concerning the Holroyd Pastoral Lease
(Q IB)
The terms of the Holroyd Pastoral Lease
Special conditions of the Holroyd Pastoral Lease
General provisions of the 1962 Act bearing on pastoral
leases
Statutory conditions with respect to pastoral leases
Provisions of the 1962 Act allowing for exemption from
conditions
Other provisions of the 1962 Act relevant to the estate or
interest conferred by pastoral leases
The interest conferred by the Holroyd Pastoral Lease
Conclusion with respect to the Holroyd Pastoral Lease:
answer to question IB
Orders
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134
135
135
136
136
137
138
139
143
144
147
149
155
156
156
156
157
157
158
159
163
163
164
164
167
167
64
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Brennan CJ
HIGH COURT
McHUGH J
GUMMOW J
Introduction
The Federal Court proceedings
The legal framework
English land law
The significance of Mabo [No 2J
Statutory interpretation
Expansion of radical title
Extinguishment by the general provisions of the Act
Pastoral leases
Conclusions
KIRBY J
[1996
167
167
169
171
177
179
184
186
190
195
204
Introduction
The Mabo decision and its aftermath 205
Procedural context 210
Pastoral Leases
Common ground 213
Mabo [No 2J does not resolve the claims 221
Pastoral leases 226
The pastoral leases in this case 231
Mere exercise of sovereignty doctrine rejected 233
Factual inconsistency doctrine rejected 235
Arguments for extinguishment of native title 238
Significance of non-entry 241
Native title was not necessarily extinguished 242
Statutory Agreements
Agreement with Comalco authorised by statute 251
Decision of the Federal Court 254
Attack on the Agreement: Implications of the Comalco Act 255
Statutory authorisation and its effect 257
The lease was valid 258
Pechiney and the "Access Agreement" 259
Orders 261
BRENNAN CJ.
1. Introduction
In proceedings brought in the Federal Court, the Wik Peoples and
the Thayorre People claim to be the holders of native title over certain
areas of land in Queensland. Those areas include or consist of land
known as the Holroyd River Holding and the Mitchellton Pastoral
Leases. In 1915 and 1919, pastoral leases had been granted by the
Crown to non-Aboriginal lessees over the Mitchellton Pastoral Leases
pursuant to the Land Act 1910 (Q) (the 1910 Act). In 1945, under the
same Act a pastoral lease had been granted by the Crown to non-
Aboriginal lessees over the Holroyd River Holding. In 1973, another
pastoral lease had been granted over the same area under the Land Act
1962 (Q) (the 1962 Act) (274). The Wik Peoples claim that their
native title was not extinguished by the granting of pastoral leases but
constitutes "a valid and enforceable interest in the land co-existing
with the interests of the lessees under the Pastoral Leases and
exercisable at all times during the continuation of the Pastoral
Leases". The Thayorre People, who were joined as respondents to the
Wik Peoples' application filed a cross-claim seeking, inter alia,
declarations that:
"On their proper construction and in the events which happened the
leases which the Crown granted over the Mitchellton Holding [in]
1915 and again [in] 1919 allowed the co-existence of use for
pastoral purposes only by the lessees with use for the purposes of
aboriginal title by the Thayorre people;
Any reversion held by the Crown in respect of the Mitchellton
leases was held in trust for the Thayorre people and the exercise by
them of their aboriginal title over the claimed land; [and]
At all times during the terms of the leases which the Crown
granted over the Mitchellton Holding ... the Thayorre people were
entitled to the unimpaired enjoyment and exercise of their aboriginal
title over the claimed lands."
Without deciding whether the claimants are the holders of native title
in respect of the land that had been leased, Drummond J determined as
a preliminary issue (275) the effect of the grant of the respective
pastoral leases upon any native title then subsisting over the land the
subject of the grant of the pastoral leases. His Honour's decision on
this issue was expressed in the answers to two questions (276):
"I B. If at any material time Aboriginal title or possessory title
existed in respect of the land demised under the pastoral lease in
respect of the Holroyd River Holding a copy of which is attached
hereto (pastoral lease):
(a) is the pastoral lease subject to a reservation in favour of the
Wik Peoples and their predecessors in title of any rights or
interests which might comprise such Aboriginal title or
possessory title which existed before the New South Wales
Constitution Act 1855 (Imp) took effect in the Colony of New
South Wales?
(274) Now repealed: see the Lnnd Act 1994 (Q).
(275) Tried pursuant to 029, r 2(a) of the Federal COUll Rules.
(276) Wik Peoples v Queensland (1996) 134 ALR 637 at 706-707.
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(b) does the pastoral lease confer rights to exclusive
possession on the grantee?
If the answer to (a) is 'no' and the answer to (b) is 'yes':
(c) does the creation of the pastoral lease that has these two
characteristics confer on the grantee rights wholly inconsistent
with the concurrent and continuing exercise of any rights or
interests which might comprise such Aboriginal title or
possessory title of the Wik Peoples and their predecessors in
title which existed before the New South Wales Constitution
Act 1855 (Imp) took effect in the Colony of New South
Wales?
(d) did the grant of the pastoral lease necessarily extinguish all
incidents of Aboriginal title or possessory title of the Wik
Peoples in respect of the land demised under the pastoral
lease?"
Question IB was answered as follows:
"as to question IB(a):
as to question IB(b):
as to question IB(c):
as to question IB(d):
No;
Yes;
Yes;
Yes."
" Ic. If at any material time Aboriginal title or possessory title
existed in respect of the land demised under the pastoral leases in
respect of the Mitchellton Pastoral Holding No 2464 and the
Mitchellton Pastoral Holding No 2540 copies of which are attached
hereto (Mitchellton Pastoral Leases):
(a) was either of the Mitchellton Pastoral Leases subject to a
reservation in favour of the Thayorre People and their
predecessors in title of any rights or interests which might
comprise such Aboriginal title or possessory title which
existed before the New South Wales Constitution Act 1855
(Imp) took effect in the Colony of New South Wales?
(b) did either of the Mitchellton Pastoral Leases confer rights
to exclusive possession on the grantee?
(c) does the creation of the Mitchellton Pastoral Leases that
had these two characteristics confer on the grantee rights
wholly inconsistent with the concurrent and continuing
exercise of any rights or interests which might comprise such
Aboriginal title or possessory title of the Thayorre People and
their predecessors in title which existed before the New South
Wales Constitution Act 1855 (Imp) took effect in the Colony
of New South Wales?
(d) did the grant of either of the Mitchellton Pastoral Leases
necessarily extinguish all incidents of Aboriginal title or
possessory title of the Thayorre People in respect of the land
demised under either of the Mitchellton Pastoral Leases'?"
"as to question le(a):
as to question I e(b):
as to question le(c):
as to question Ie(d):
Question Ie was answered as follows:
No;
Yes - both did;
Yes;
Yes - the grant of the first of these
leases extinguished Aboriginal title."
The Wik Peoples also claim declarations which challenge the
validity of Special Bauxite Mining Leases which had been granted by
the State to certain mining companies in purported pursuance of the
Commonwealth Aluminium Corporation Pty Limited Agreement Act
1957 (Q) and the Aurukun Associates Agreement Act 1975 (Q). Two
further questions were decided by Drummond J as preliminary issues
relating to these claims. The questions and his Honour's answers were
as follows:
"Question 4
May any of the claims in pars 48A-53, 54-58(a), 59-61, 61 A-64 and
65-68 of the Further Amended Statement of Claim [being claims of
alleged breach of fiduciary duty and failure to accord natural justice]
be maintained against the State of Queensland or Comalco
Aluminium Ltd notwithstanding the enactment of the Comalco Act,
the making of the Comalco Agreement, the publication in the
Queensland Government Gazette of 22 March 1958 pursuant to s 5
of the Comalco Act of the proclamation that the Agreement
authorised by the Comalco Act was made on 16 December 1957 and
the grant of Special Bauxite Mining Lease No I?
Question 4 is answered: No
Question 5
May any of the claims in pars 112-116, 117-121, 122-124, 125-127,
128-132 and 141-143 of the Further Amended Statement of Claim
[being claims of alleged breach of fiduciary duty and failure to
accord natural justice] be maintained against the State of
Queensland or Aluminium Pechiney Holdings Pty Ltd notwithstand-
ing the enactment of the Aurukun Associates Agreement Act 1975,
the making of the Aurukun Associates Agreement, the publication
in the Queensland Government Gazette of the proclamation of the
making of the Agreement pursuant to the Act and the grant of
Special Bauxite Mining Lease No 9?
Question 5 is answered: No"
The Wik and the Thayorre Peoples appealed to the Full Court of the
Federal Court. The appeal was removed into this Court pursuant to
s 40( I) of the Judiciary Act 1903 (Cth). It is convenient first to refer to
the issues arising from the grant of the pastoral leases.
2. The content of the pastoral leases
The first Mitchellton lease, issued under the 1910 Act in 1915, was
forfeited for non-payment of rent in 1918. The second lease, issued
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under the 1910 Act in 1919, was surrendered in 1921. Possession was
not taken by the lessees under either lease. Since 12 January 1922 the
land has been reserved for the benefit of Aborigines or held for and on
their behalf. The first Holroyd lease, issued under the 1910 Act in
1945, was surrendered in 1973. The second lease, issued under the
1962 Act, is for a term of thirty years from 1 January 1974. None of
the leases contained an express reservation in favour of Aboriginal
people. The power to issue leases under the 1910 Act was vested in
the Governor in Council (277) by s 6:
"(1) Subject to this Act, the Governor in Council may, in the
name of His Majesty, grant in fee-simple, or demise for a term of
years, any Crown land within Queensland.
(2) The grant or lease shall be made subject to such reservations
and conditions as are authorised or prescribed by this Act or any
other Act, and shall be made in the prescribed form, and being so
made shall be valid and effectual to convey to and vest in the person
therein named the land therein described for the estate or interest
therein stated.
(3) The rights of the Crown in gold and other minerals, and the
reservations with respect to the same which are to be contained in
all Crown grants and leases, are declared and prescribed in 'The
Mining on Private Land Act of 1909.'
(4) In addition to any reservation authorised or prescribed by this
Act or any other Act in any grant or lease made after the
commencement of this Act, there may be reserved for any public
purposes, whether specified or not, a part of the land comprised
therein of an area to be specified, but without specifying the part of
the land so reserved. And it is hereby declared that all such
reservations in all grants and leases made before the commencement
of this Act are valid to all intents and purposes."
Similar provisions are contained in s 6 of the 1962 Act, except that the
subsection dealing with the Crown's mineral rights is extended to
cover the rights in petroleum declared and prescribed in the Petroleum
Acts 1923-1958 (Q). "Crown land" was defined by s 4 of the 1910
Act as follows:
"All land in Queensland, except land which is, for the time
being -
(a) Lawfully granted or contracted to be granted in fee-simple by the
Crown; or
(b) Reserved for or dedicated to pUblic purposes; or
(c) Subject to any lease or license lawfully granted by the Crown:
(277) The Parliament of Queensland was empowered to make laws for regulating the
letting of Crown land in Queensland by s 30 of the Constitution Act 1867 (Q): see
also s 40 of that Act.
Provided that land held under an occupation license shall be deemed
to be Crown land."
An identical definition of the term appeared in s 5 of the 1962 Act.
The leases issued under the 1910 Act recited that the respective
lessees were "entitled to a Lease of the Land described in the
Schedule endorsed on these Presents for the term, and at the yearly
rent, hereinafter mentioned, and with, under, and subject to the
conditions, stipulations, reservations, and provisoes in the said Act,
and hereinafter contained".
In consideration of the premises and the rent, the Crown did
"DEMISE AND LEASE unto the said [lessee] (hereinafter with their
Successors in title designated 'the Lessee') and their lawful assigns,
ALL THAT portion of Land situated in [name of district] ... to hold
unto the Lessee and their lawful assigns, for pastoral purposes only,
for and during the term of [number of years] ... subject to the
conditions and provisoes in Part III, Division I of the said Act, and to
all other rights, powers, privileges, terms, conditions, provisions,
exceptions, restrictions, reservations, and provisoes referred to ... in
... the said Act, and 'The Mining on Private Land Act of 1909' ". In
addition to the reservations in the Mining on Private Land Act 1909
(Q), the second Mitchellton lease included reservations under the
Petroleum Act 1915. Both Holroyd leases included reservations under
the Petroleum Act 1923 (as amended) and the second Holroyd lease
included reservations under the Mining Act 1968-1974 (Q).
The second Holroyd lease is not expressed to be limited "for
pastoral purposes only" but otherwise is in similar terms although
granted under the 1962 Act. It contains further express conditions
requiring the lessees to erect a manager's residence and effect other
improvements on the land (including fencing the land) within five
years. Although question 18 relates to the operation and effect of the
second Holroyd lease, the land title history of both of the parcels of
land in question in these proceedings must take account of the
operation and effect of the leases issued under the 1910 Act. For
reasons that will appear, it is not necessary to examine the effect of the
1962 Act and the second Holroyd lease issued under that Act upon
native title. It is sufficient to note that, in all material respects, the
operation and effect on native title (if any then subsisted) of the
pastoral lease issued under the 1962 Act would be the same as the
operation and effect on native title of the pastoral leases issued under
the 1910 Act. Hereafter, the references to particular sections are to the
sections in the 1910 Act.
Each lease contained reservations with respect to the Crown's
mineral rights and a reservation (278) in these terms:
"WE Do FURTHER RESERVE the right of any person duly authorised
(278) Pursuant to S 14(4).
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in that behalf by the Governor of Our said State in Council at all
times to go upon the said Land, or any part thereof, for any purpose
whatsoever, or to make any survey, inspection, or examination of
the same."
The leases under the 1910 Act were issued "pursuant to Part III,
Division r' of that Act and were expressed to be subject to "the
conditions and provisoes of Part III, Division I". That Division
provided for the Minister by notification to declare any Crown land to
be open for pastoral lease and to specify "the areas to be leased, the
term of the lease ... and the rent per square mile during the term"
(s 40(2)). Applications for a pastoral lease were lodged with a land
agent and, when issued to a successful applicant, commenced "on the
quarter day next ensuing after the date of acceptance of his
application" (s 41(4)). The term of a lease was divided into ten-year
periods, the rent for periods after the first being fixed by the Land
Court (ss 42, 43). Every lease was subject to the condition that the
"lessee shall, during the term, pay an annual rent at the rate for the
time being prescribed" (s 43(i)).
The submissions on behalf of the Wik Peoples (the Wik submission)
and the Thayorre People (the Thayorre submission) are directed to
establishing two basic points: that the pastoral lessees did not acquire a
right to exclusive possession of the land the subject of the leases and,
even if they did, it is not the right to exclusive possession that
extinguished native title but only the exercise of that right to exclude
the holders of native title. These basic points were supplemented by
two subsidiary arguments, namely, that native title was not
extinguished but merely suspended during the term of a lease and that
the Crown held any reversion as a fiduciary for the holders of native
title. In addition submissions were made specific to the claims made
against the mining companies.
The submissions made by the Wik and Thayorre Peoples were
supported by some respondents and opposed by others. Leave to
intervene was granted without objection to the States of Victoria,
Western Australia and South Australia, the Northern Territory and
(this being an exceptional case) to certain Aboriginal Land Councils
and representatives of certain other Aboriginal Peoples. The principal
issues in the case were raised by the Wik and Thayorre Peoples on the
one hand and by the State of Queensland on the other. These issues
were addressed by other parties and interveners but it will be
convenient to refer chiefly to those parties' submissions as the source
of the submissions in the following discussion.
3. The rights of a lessee under the pastoral leases
The Wik and Thayorre submissions first point to the magnitude of
the area of the land the subject of the leases and its capacity to permit
concurrent use by Aboriginal inhabitants and pastoral lessees as
indications that the lessees were not intended to acquire a right to
possession exclusive of the Aboriginal inhabitants. The Holroyd River
Holding was 1,119 square miles in area; the Mitchellton Lease was
535 square miles in area. If the granting of the leases were intended to
exclude the Aboriginal inhabitants who had been the traditional
inhabitants of these areas, it is submitted that the granting of the leases
would have been "truly barbarian", for the Aboriginal inhabitants
would thereby have become trespassers on their traditional land.
The quoted phrase is taken from my judgment in Mabo v
Queensland [No 2J (279) (hereafter Mabo [No 2]) where it was used
in reference to a possible construction of a statutory provision (280)
which made it an offence for a person to be found in occupation of
Crown land, not being a lessee or licensee. To construe such a
provision as applying to Aboriginal inhabitants would have left them
practically without anywhere in the country to live and, on that
account, would have been "truly barbarian". The term "person" in
the statute was read down so as not to include traditional Aboriginal
occupiers. The question that arises as to the operation of a pastoral
lease is different. That question is whether the pastoral lessee acquires
a right to exclusive possession of the area of land the subject of the
lease. If the pastoral lessee acquires a right to exclusive possession, it
does not follow that the Aboriginal inhabitants are necessarily turned
into trespassers. It would not be an offence to be found in occupation
of land subject to a pastoral lease. A pastoral lessee, who took no steps
during the term of the lease to exclude known Aboriginal inhabitants
from the leased land, must be taken to have consented to their
presence on the land. But if, in exercise of a right to exclusive
possession, the Aboriginal inhabitants were excluded by the lessee, the
exclusion would be an example of events referred to in Mabo
[No 2J (281): "Aborigines were dispossessed of their land parcel by
parcel, to make way for expanding colonial settlement." (282) That
was the consequence of the exercise of the Crown's power to confer
on the colonial settlers an authority or purported authority to exclude
Aboriginal inhabitants from the parcels of land granted to the settlers
by the Crown. But the adversely discriminatory treatment suffered by
the holders of native title is not now in issue; what is in issue is the
legal effect of the Crown's grant of pastoral leases over land that was
or might have been the subject of native title.
The construction of the 1910 Act or the effect of a lease issued
under Pt III, Div I of that Act is not to be ascertained by reference to
whether a pastoral lessee in fact excluded Aboriginal inhabitants from
(279) (1992) 175 CLR I at 66.
(280) Section 91 of the Crown Lands Alienalion ACI 1876 (Q). Section 203 of the 1910
Act was drawn in similar terms.
(281) (1992) 175 CLR I at 69.
(282) Note the summary procedure for removal of persons in wrongful occupation
prescribed by s 204 discussed below.
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the land. It must be ascertained by reference to the language used in
the Act and reflected in the instrument of lease. If, on its true
construction, a pastoral lease under the Act conferred on the lessee a
right to exclusive possession, that right is not to be qualified by the
presence on the leased land of the traditional Aboriginal inhabitants at
the time when the lease was granted or by their continued presence
thereon after the lease was granted.
A number of arguments were put that the 1910 Act and the leases
granted thereunder did not confer exclusive possession on the Crown
lessees. First, the Wik submission contends that the statutory
procedure for removing persons in unlawful occupation of a pastoral
lease showed that the person in or entitled to possession of the leased
land was not the lessee but the Crown. And, if that be so, the lease
must be construed as no more than a licence. Section 204 of the 1910
Act read as follows:
"Any Commissioner or officer authorised in that behalf by the
Minister who has reason to believe that any person is in unlawful
occupation of any Crown land or any reserve, or is in possession of
any Crown land under colour of any lease or license that has
become forfeited, may make complaint before justices, who shall
hear and determine the matter in a summary way, and, on being
satisfied of the truth of the complaint, shall issue their warrant,
addressed to the Commissioner or to such authorised officer or to
any police constable, requiring him forthwith to remove such person
from such land, and to take possession of the same on behalf of the
Crown; and the person to whom the warrant is addressed shall
forthwith carry the same into execution.
A lessee or his manager or a licensee of any land from the Crown
may in like manner make a complaint against any person in
unlawful occupation of any part of the land comprised in the lease
or license, and the like proceedings shall thereupon be had."
The successor to s 204 of the 1910 Act, name]y, s 373 of the 1962
Act, extended the range of applicants for a warrant to licensees and
persons "purchasing any land from the Crown". A person in either of
these categories may not have a right to exclusive possession.
These sections are drafted witho>Jt much recognition of the different
interests of the Crown, Crown lessees and licensees and purchasers,
but the purpose of these provisions is clear enough. It is not to eject a
person in possession, for the person to be removed might not have
been in possession but merely in "unlawful occupation". The purpose
is to procure the removal of a person who has no right to remain on
the land. The taking of possession under the warrant was the step
which restored to the applicant party the full enjoyment of the party's
interest that had been impaired by the presence of the person removed.
Absent this statutory procedure, a pastoral lessee could secure the
ejectment of a person having no right to be or to remain on the land
only by bringing civil proceedings in the Supreme Court (283). The
Wik submission says that "the like proceedings" to be had on an
application by a person in one of the categories mentioned in the last
paragraph of s 204 would lead to the issue of a warrant "to take
possession ... on behalf of the Crown". Therefore, so the argument
runs, the Crown must be the party in possession. That would be a
bizarre construction.
The section assumes that a person may be in possession under
colour of a forfeited lease or licence. If a forfeited lease or licence can
create a colour of possession, an existing pastoral lease must be taken
- for the purpose of the section at least - to confer a right to
possession. And, if a lessee who applies for a warrant is in possession,
it could not have been intended that the issue of a warrant should
result in the lessee's dispossession. The "like proceedings" must
mean that the warrant of removal issues in favour of the applicant for
the warrant who has demonstrated his title to relief in the same way as
it issues in favour of the Crown when an application is made by or on
behalf of the Crown. A provision corresponding with the last
paragraph of s 204 was introduced in a statutory predecessor of s 204
in 1869 (284), perhaps to avoid the necessity for litigation between
adjoining landholders in the Supreme Court as had occurred in
McGavin v McMaster in the year before. There is no substance in the
submission based on s 204.
Next, both the Wik and the Thayorre submissions placed some
reliance on the reservation in the lease of the Crown's right to
nominate any person to enter upon the land for any purpose and at any
time to show that the pastoral lessee did not acquire a right to
exclusive possession. That reservation, together with certain statutory
provisions (ss 6(3), 14(3), (4), 139, 199(1), (2), 200, 205) authorising
access to land the subject of a pastoral lease and the restriction placed
by the leases (other than the second Holroyd lease) on the use of the
land "for pastoral purposes only", are said to negative a legislative
intention to confer a right to exclusive possession on the pastoral
lessees. The reservation, far from implying that the lease did not
confer a right to exclusive possession, implies that, without the
reservation, the lessee would have been entitled to refuse entry to any
person (285). The reservation was not a reservation from the grant of a
third party interest in the land but a reservation to the Governor in
Council of a power to authorise a third party to enter. Similarly, the
statutory provisions conferred authority to enter on leased land when
(283) This was the course taken in McGavin v McMaster (1869) 2 QSCR 23 when the
Pastoral Leases Act 1863 (Q) provided the summary remedy on an application by
or on behalf of the Crown but contained no provision authorising an application
by or on behalf of lessees or the other categories of persons mentioned in the last
paragraph of s 204.
(284) Section 71 of the Pastoral Leases Act 1869 (Q).
(285) See Radaich v Smith (1959) 101 CLR 209 at 222, per Windeyer J.
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such entry would otherwise have been in breach of the rights of the
lessee. And the restriction on use of the land was consistent with a
lessee's right to exclusive possession.
In Goldsworthy Mining Ltd v Federal Commissioner of Tax-
ation (286), a dredging lease issued under the Land Act 1933-1965
(WA) over a portion of the seabed contained several reservations
which restricted the use to which the demised premises could be put
by the lessees, permitted the Crown and others to use any part of the
demised premises for navigation, and imposed on the lessees
obligations of an important kind (including consenting to the grant of
easements or rights over the demised premises). Mason J held that
those provisions were consistent with the lessees' right to exclusive
possession. "Indeed", his Honour said (287), "the provisions assume
the existence of that right". And, in Glenwood Lumber Co Ltd v
Phillips (288), the Privy Council said:
"If the effect of the instrument is to give the holder an exclusive
right of occupation of the land, though subject to certain
reservations or to a restriction of the purposes for which it may be
used, it is in law a demise of the land itself."
If, as a matter of construction, it is right to hold that the right to
exclusive possession was conferred on a pastoral lessee, the statutory
provisions that authorised entry onto leased land for a variety of
purposes were qualifications of that right but they did not destroy it.
They merely limited the enjoyment of that right to the extent that the
particular statute prescribed. For example, s 205 which authorised the
depasturing of stock other than sheep along stock routes traversing
pastoral leases was simply what it purported to be: a statutory
exception to the right which, as an incident of the right to exclusive
possession, the lessee would otherwise have had to exclude the stock
and the persons driving the stock (289).
However, there are certain statutory provisions which authorised the
suspension or termination of a lessee's right to exclusive possession.
The clearest example was the statutory power to resume for particular
purposes a portion of land subject to a pastoral lease. That power,
contained in Pt VI, Div VI of the 1910 Act, did not deny that the land
resumed was in the exclusive possession of the lessee prior to the
resumption. Another example is found in the Petroleum Act 1923 (Q).
(286) (1973) 128 CLR 199.
(287) Goldworthy Mining (1973) 128 CLR 199 at 213.
(288) [1904] AC 405 at 408.
(289) See Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd (1925) 36 CLR 340
where the issue was whether a provision of the Pastoral Act 1904 (SA) conferred
a right to travel stock across a pastoral lease or whether it merely conditioned the
exercise of an existing right so to do. Both the majority and minority accepted
that, in the absence of some right arising aliunde, the travelling of stock would
have infringed the pastoral lessee's possession: see at 365, 376.
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 (290)), 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 (291). But that is not to say that the pastoral lessee's
interest in land the subject of a pastoral lease was altered by the mere
existence of a power to grant a petroleum (or other mining) lease over
the same land. The problems of mining leases over land already leased
by the Crown arise precisely because the Crown has already disposed
of the leasehold estate in the land.
It remains a question of construction whether a pastoral lease issued
pursuant to Pt III, Div I of the 1910 Act confers on the lessee a right to
exclusive possession. That question is to be determined by reference to
the terms of the lease and of the Act under which it was issued. It is
not a necessary consequence of the description of the instruments
issued pursuant to Pt III, Div I of the 1910 Act as leases that they
conferred a right of exclusive possession on the lessee. The question
whether the lessees acquired a right to exclusive possession does not
depend on what the parties called the instrument except in so far as
their description of the instrument indicates the rights which it confers.
As the Privy Council observed in Glenwood Lumber Co Ltd v
Phillips (292), it is not a question of words but of substance. Thus,
their Lordships held in O'Keefe v Malone Ltd (293) that an exclusive
and transferable licence to occupy land for a defined period is in truth
a lease. Conversely, a true lease confers on the lessee a right to
exclusive possession, albeit that right might be subject to particular
reservations or exceptions (294). In Radaich v Smith (295), Windeyer J
said:
'Whether the transaction creates a lease or a licence depends upon
intention, only in the sense that it depends upon the nature of the
right which the parties intend the person entering upon the land shall
have in relation to the land. When they have put their transaction in
(290) The definition of "private land" in s 3 of the Petroleum Act means all land other
than Crown land. Crown land does not include land "subject to any lease or
licence lawfully granted by the Crown".
(291) The problems of mining leases over privately owned land need not be explored
here. See, eg, Croudace v Zobel [1899] AC 258; Ebbels v Rewell [1908] VLR 261
at 264; Frazers Creek Mining Co Ply Ltd v Schieb [1971] I NSWLR 953 at 959;
Wade v New South Wales Rutile Mining Co Ply Ltd (1969) 121 CLR 177.
(292) [1904] AC 405 at 408.
(293) [1903] AC 365 at 377; followed in 0 'Keefe v Williams (1910) II CLR 171 at 208.
(294) Street v Mountford [1985] AC 809 at 816,818. As to the difference between an
exception and a reservation in conveyancing law, see Wade v New South Wales
Rutile Mining Co Ply Ltd (\969) 121 CLR 177 at 194 and Hill and Redmond's
Law of Landlord and Tenant, 18th ed (1988), par A686.
(295) (1959) 10I CLR 209 at 222.
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wntmg this intention is to be ascertained by seeing what, in
accordance with ordinary principles of interpretation, are the rights
that the instrument creates. If those rights be the rights of a tenant, it
does not avail either party to say that a tenancy was not intended.
And conversely if a man be given only the rights of a licensee, it
does not matter that he be called a tenant; he is a licensee. What
then is the fundamental right which a tenant has that distinguishes
his position from that of a licensee? It is an interest in land as
distinct from a personal permission to enter the land and use it for
some stipulated purpose or purposes. And how is it to be ascertained
whether such an interest in land has been given? By seeing whether
the grantee was given a legal right of exclusive possession of the
land for a term or from year to year or for a life or lives. If he was,
he is a tenant. And he cannot be other than a tenant, because a legal
right of exclusive possession is a tenancy and the creation of such a
right is a demise. To say that a man who has, by agreement with a
landlord, a right of exclusive possession of land for a term is not a
tenant is simply to contradict the first proposition by the second."
(Some emphasis added.)
Although it is the substance of the rights conferred and not the
description of the instrument conferring them which is the ultimate
touchstone for determining whether a lease has been granted, the
ordinary rules of interpretation require that, in the absence of any
contrary indication, the use in a statute of a term that has acquired a
technical legal meaning is taken prima facie to bear that mean-
ing (296). Under the 1910 Act, the power to grant a pastoral lease was
a power to "demise for a term of years" (s 6(1)); a "lease" was
declared to be effectual to vest "the estate or interest therein stated"
(s 6(2)); a pastoral lease was granted for a term (s 40(2)) commencing
on a quarter day (s 41(4)) in respect of a specified area of land
(s 40(2)); there was an obligation to pay the rent (s 43); provision was
made for a "surrender" of a lease (297) and for forfeiture (298) and,
on forfeiture, the land reverted to His Majesty and could have been
dealt with again under the Act (299). This is the language of lease.
(296) AI/orney-General (NSW) v Brewery Empl,)yees' Union (NSW) (1908) 6 CLR 469
at 531; Barker v The Queen (1983) 153 CLR 338 at 341, 355-356; R v Slator
(1881) 8 QBD 267 at 272, 274.
(297) s 122: and see Chelsea Investments Ply Ltd v Federal Commissioner of Taxation
(1966) 115 CLR I at 6. ii Co Lilt, 19th ed (1832) at 337b, refers to "surrender"
as "a yielding up [of] an estate for life or years to him that hath an immediate
estate in reversion or remainder, wherein the estate for life or years may drown by
mutual agreement between them".
(298) Section 130(2) of the 1910 Act; ss 14(1),249,295 of the 1962 Act. Section 14(1)
of the 1962 Act, unlike s 130(2) of the 1910 Act, distinguished between a lease
which is "forfeited" and a licence which is "determined".
(299) s 135; see Minister for Lands v Priestley (1911) 13 CLR 537.
In American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (300) I
observed in reference to the similar provisions of the 1962 Act:
"By adopting the terminology of leasehold interests, the Parliament
must be taken to have intended that the interests of a lessee,
transferee, mortgagee or sublessee are those of a lessee, transferee,
mortgagee or sublessee at common law, modified by the relevant
provisions of the Act. The incidents of those interests are the
incidents of corresponding interests at common law modified by the
relevant provisions of the Act."
This is the long-established and hitherto accepted approach to the
operation of Crown Lands legislation in Australia. In Attorney-General
(Viet) v Ettershank (301), the opinion of the Privy Council defined the
effect of a "lease" issued under the Land Acts in force in Victoria:
"What the Act of 1862 authorises and prescribes in the case of a
selector, is that he shall receive 'a lease,' and by s 22 such lease is
to contain 'the usual covenant for payment of rent, and a condition
for re-entry on non-payment thereof'. When, therefore, the statute
authorises a lease with these usual and well understood provisions,
it is reasonable to suppose that the Legislature intended that it
should operate as a contract of the like nature made between private
persons."
The statutes of the Australian colonies regulating the alienation of
interests in unalienated land have been construed as controlling the
Crown's capacity to contract for the alienation of interests and the
Crown's capacity to grant interests in such land. The principle
applicable in New South Wales as in other Australian colonies was
that the Crown was "only authorised to dispose of Crown lands in
accordance with the provisions of the Crown Lands Acts" (302). In
Cudgen Rutile (No 2) Pty Ltd v Chalk (303) Lord Wilberforce said:
"As a starting point, their Lordships accept as fully established
the proposition that, in Queensland, as in other states of the
Commonwealth of Australia, the Crown cannot contract for the
disposal of any interest in Crown lands unless under and in
accordance with power to that effect conferred by statute. In
Queensland the legal basis for this power, and for the limitations
upon it, is to be found in the Constitution Act 1867, of which s 30
(300) (1981) 147 CLR 677 at 686; and at 682-683. per Mason J; see also ICI Alkali
(Australia) Pty Ltd v Federal Commissioner of Taxation (1978) 53 ALJR 220
at 223; 22 ALR 465 at 470; 9 ATR 373 at 378; 78 ATC 4728 at 4731-4732,
where the High Court accepted that a Crown lease under the Mining Act 1930
(SA) was in truth a lease, not a licence.
(301) (1875) LR 6 PC 354 at 370.
(302) de Britt v Carr (1911) 13 CLR 114 at 122, per Griffith CJ.
(303) [1975] AC 520 at 533.
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provides for the making of laws regulating the sale, letting, disposal
and occupation of the waste lands of the Crown, and s 40 vests the
management and control of the waste lands of the Crown in the
legislature.' ,
Illustrative of this view is the judgment of Isaacs J in O'Keefe v
Williams (304), where his Honour repeated a view he had earlier (305)
expressed:
"'It may fairly be said that the whole frame of the Crown Lands
Act 1891 (NSW) shows that the legislature has merely enacted the
method and conditions upon which the Crown may contract for the
disposal of its interest in the public lands.' And that involves the
position that the Crown may contract to give a lease, and may
contract by a lease. It cannot contract either for or by a lease in any
terms contrary to the Statute; and where the Statute declares what
rights the lease when granted shall confer, in other words declares
its legal effect, the Crown when granting such a lease grants those
rights," .
The use of well understood conveyancing terms in statutes authorising
the disposition of interests in unalienable land was taken to import the
interests and rights ordinarily attributed to those terms (306). The
substantive rights conferred on a Crown lessee are equated with the
rights of a lessee under a lease at common law granted within the
confines of the empowering statute. The substantive rights of a Crown
lessee thus include the right of exclusive possession. In Goldsworthy
Mining Ltd v Federal Commissioner of Taxation (307), Mason J held
"the language of lease" to indicate an agreement by the Crown to
give the lessee the right of exclusive possession.
However, there is a passage in a judgment of Isaacs J in Davies v
Littlejohn (308) in which his Honour speaks of conditional purchases
under the Crown Lands Consolidation Act 1913 (NSW) not as
contracts but as creatures of statute. He said of the Act:
"It creates them, shapes them, states their characteristics, fixes the
mutual obligation of the Crown and the purchaser, and provides for
the mode in which they shall cease to exist, either by becoming
unconditional purchases or by termination en route , .. Whatever
estates, interests or other rights are created by the Crown must owe
their origin and existence to the provisions of the statute, In other
words, they are statutory or legal estates, interests and rights. They
(304) (1910) 11 CLR 171 at 207,
(305) In O'Keefe v Williams (1907) 5 CLR 217 at 230.
(306) O'Keefe v Williams (1910) 11 CLR 171 at 191, 193,200,209; and see American
Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pry Ltd (1981) 147 CLR 677 at 683.
(307) (1973) 128 CLR 199 at 213.
(308) (1923) 34 CLR 174 at 187-188.
are not and cannot be equitable, that is, owing their existence to
some doctrine or principle of equity."
His Honour's approach was followed by the Full Court of the Supreme
Court of Victoria in In re Brady (309) in defining the right to a grant
in fee simple possessed by a Crown lessee who had complied with the
conditions of the lease and was entitled to the grant on payment of a
specified amount. Both of these cases were concerned to distinguish
between a statutory right to acquire the fee and an ordinary contract of
sale under which the respective rights of vendor and purchaser are
affected by equitable principles. In Davies v Littlejohn, Isaacs J was
concerned to demonstrate that the Crown had no vendor's lien on the
unpaid price of land held on conditional purchase. As the purchaser
under a conditional purchase (unlike a purchaser under an ordinary
contract for the sale of land) acquired no interest in the land until the
statutory conditions were fulfilled, the Crown (unlike a vendor under
an ordinary contract for the sale of land) parted with no interest.
Accordingly, there was no occasion for equity to protect the Crown by
a vendor's lien for the unpaid balance of the purchase price. The
scheme for conditionally purchasing land was statutory and there was
"no room for equity to intervene and modify the nature of a
conditional purchase as Parliament has shaped it" (310). Of course the
conditions which entitle a person to the grant of a freehold estate under
a conditional purchase are prescribed by statute; non constat that a
lease issued by the Crown in exercise of its statutory powers is not
truly a lease conferring, or in accordance with the statute conveying, a
leasehold estate.
The reasoning in Davies v Littlejohn casts no doubt on the orthodox
characterisation as leases at common law of leases issued by the
Crown under Crown Lands legislation. Attorney-General (Viet) v
Ettershank (311) makes the distinction between a lease contractually
binding on the Crown though issued in accordance with the statute and
a purely statutory right to acquire the fee that is conferred on a lessee:
"It was said that the right to the grant of the fee was not given by
contract but by statute. It is true that the right is created by the
statute, but it is conferred upon the holder of a lease, and accrues to
him by reason of such lease, and only upon payment of the full rent
agreed to be paid under it. It is a statutory right annexed to the
lease, and an implied term of the contract, and therefore may be
properly said to be founded on and to arise out of it."
This passage was cited by Isaacs J in O'Keefe v Williams (312).
The Court of Appeal of New South Wales in Minister for Lands and
(309) [1947] VLR 347.
(310) Davies v Li/llejohn (1923) 34 CLR 174 at 190.
(311) (1875) LR 6 PC 354 at 372.
(312) (1907) 5 CLR 217 at 229.
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Forests v McPherson (313) was right to view Davies v Littlejohn and
O'Keefe v Williams as cases dealing with distinct subjects.
Mahoney JA said (314):
"I do not think that the principles adopted in Davies v Littlejohn
are inconsistent with those adopted in O'Keefe v Williams. In
O'Keefe v Williams, the court was concerned with the implications
to be drawn from or in the context of a transaction under which a
right of occupation amounting to a lease had actually been granted.
It was held not inconsistent with the statutory nature or origin of
that right that other rights should be implied. In Davies v Littlejohn,
the court was concerned with the nature of an agreement to buy
Crown lands which had not yet resulted in the creation of a term or
estate: the issue was whether the agreement which existed provided
the basis for the creation of the equitable lien."
Kirby P, after referring to both cases, said (315):
"In the case of an interest called a 'lease', long known to the law,
the mere fact that it also exists under a statute will not confine its
incidents exclusively to those contained in the statute. On the face
of things, the general law, so far as it is not inconsistent with the
statute, will continue to operate."
I respectfully agree. In Davies v Littlejohn, Isaacs J simply followed
the principle established by Attorney-General (Viet) v Ettershank.
Indeed, he did not think it necessary to refer to Attorney-General
(Viet) v Ettershank or to either of the 0'Keefe v Williams appeals in
which he had cited that case (316). Whatever may be said of
conditional purchases, a Crown lease issued under s 6( I) of the 1910
Act was effective to convey and vest "the land therein described for
the estate or interest therein stated" (s 6(2. The lessee acquired more
than a bundle of statutory rights: the lessee acquired a leasehold estate.
Although the 1910 Act did not expressly confer on a Crown lessee
the right to exclusive possession - a circumstance on which the
Thayorre submission places particular emphasis - that right is the
leading characteristic of a leasehold estate, distinguishing the lease
from a licence, as Lord Templeman pointed out in Street v
Mountford (317). If the 1910 Act intended the lease to confer no more
than the rights expressed by the Act, there would have been little point
in distinguishing between leases and licences which share many
statutory features. Yet the distinction is clearly made. I see no basis,
consistently with authority, for denying to lessees holding under
(313) (1991) 22 NSWLR 687.
(314) McPherson (1991) 22 NSWLR 687 at 712.
(315) McPherson (1991) 22 NSWLR 687 at 696.
(316) O'Keefe v Williams (1907) 5 CLR 217 at 229; (1910) II CLR 171 at 207.
(317) [1985] AC 809 at 816.
Crown leases issued under the 1910 Act (or under the 1962 Act) the
right of exclusive possession characteristic of a leasehold estate.
Notwithstanding the language of lease that is found in both Pt III
Div I of the 1910 Act and the instruments of lease of the subject lands,
the Thayorre submission characterises a pastoral lease as a mere profit
aprendre - an interest in the land which authorises the pastoralist to
enter on the land of another (presumably on the land of the holders of
native title) for the sole purpose of grazing stock. That view of a
pastoral lease was rejected by the Colonial Land and Emigration
Office in April 1849 (318) and, in 1870, the Full Court of the Supreme
Court of Queensland held (319) that a pastoral lessee had an
"exclusive right to the land" . After the enactment of the 1910 Act, the
Full Court held that the Crown and its lessees were in the same
position, subject to statute, as a landlord and tenant at common
law (320). A pastoral lease under Regulations pursuant to the
Australian Waste Lands Act 1855 (Imp) (321) by which the Crown
purported to "demise and lease" to a lessee a parcel of land in
Western Australia was said by Griffith CJ in Moore v Western
Australia (322) to create "an estate in the land which could not be
diminished by the Crown by means of any disposition of the land
inconsistent with the continuance of the estate so created" subject,
however, to a reservation which - in that case - empowered the
Crown to sell the land demised. It has never hitherto been doubted that
a Crown lease conferred an estate on a lessee taking possession under
the lease (323). Although the Thayorre submission that the depasturing
of stock can be made the subject of a profit aprendre is correct, it does
not follow that the right to depasture stock conferred by a pastoral
lease is a mere profit aprendre.
In Falkland Islands Co v The Queen (324) the Privy Council
considered an instrument described as a licence "to depasture stock on
10,000 acres [of the Falkland Islands], the limits of which were strictly
defined in the instrument, for a term of twenty years, in consideration
(318) Letter from the Colonial Land and Emigration Office to Herman Merivale dated
17 April 1849.
(319) Wildash v Brosnan (1870) QCLLR 17 at 18 and see Macdonald v Tully (1870)
2 QSCR 99 at 106 where a pastoral lessee's right to occupy while awaiting the
issue of a formal lease was "capable of being maintained against any disturber".
(320) R v Tomkins [1919) St R Qd 173 at 190, 194-195, 198; see also Attorney-General
(Viet) v Ettershank (1875) LR 6 PC 354 at 368, 370; O'Keefe v Williams (1910)
II CLR 171 at 190-191, 196, 200, 208; Yandama Pastoral Co v Mundi Mundi
Pastoral Co Ltd (1925) 36 CLR 340; Minister for Lands and Forests v
McPherson (1991) 22 NSWLR 687 at 696, 710; cf R v Toohey; Ex parte Meneling
Station Ply Ltd (1982) 158 CLR 327.
(321) 18 & 19 Vict c 56.
(322) (1907) 5 CLR 326 at 336.
(323) See the use of the term "estate" by O'Connor J in Minister for Lands v Priestley
(1911) 13 CLR 537 at 550.
(324) (1863) 2 Moo (NS) 267 at 273 [15 ER 902 at 904).
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of an annual rent of 10". The instrument contained a reservation
"securing to the Crown the right of re-entering on the lands for the
purpose of making roads, canals, and other works of public utility, the
right to cut timber, and to search for and carry away stones or other
materials which might be required for making or keeping such works
in repair, and also reserving to the Crown all mines of gold, silver,
precious metals, and coal, with full liberty to search for and carry
away the same" (325). Their Lordships classified the instrument as a
lease, expressing the opinion that (326) -
"though this is entitled a licence to depasture stock, it is in law a
demise of the land therein contained, to which the ordinary rights of
a lessee attach, and consequently, that the land thereby demised,
subject to the rights of the Crown and the performance of the
conditions contained in the licence, belong to the Falkland Islands
Company as their exclusive property during the period of the
lease."
If the pastoral leases in the present case conferred no more than a
profit a prendre, it would be necessary to attribute ownership of the
land to the Crown from whom the postulated profit a prendre was
derived. But if the "licence" in the Falkland Islands case conferred
"exclusive property" rights on the lessee, a fortiori, the pastoral leases
in the present case must be classified as true leases conferring a right
to exclusive possession on the pastoral lessee.
In order to rebut this conclusion, the Thayorre submission (and
perhaps the Wik submission (327)) contends for a presumption against
the Crown's intending to derogate from native title and for a
construction of s 6 of the 1910 Act and of the pastoral leases granted
thereunder that would leave native title subsisting. The submission
points to the difference in the position of the holders of native title
who are said to be vulnerable and the position of the Governor in
Council who is said to have the dominant power to alienate interests in
land subject to native title. That difference is said to give rise to a
fiduciary duty owed by the Crown to the holders of native title which,
if I understand the submission correctly, creates a presumption that the
legislature did not intend to extinguish native title and that, by reason
of that presumption, the grant of a pastoral lease did not extinguish
native title.
To compare the relative positions of the Crown and the holders of
native title is not to show the existence of any relevant fiduciary duty.
Even if there were some fiduciary relationship, it could not affect the
(325) Falkland Islands Co v The Queen (1863) 2 Moo (NS) 267 at 273 [15 ER 902
at 904].
(326) Falkland Islands Co v The Queen (1863) 2 Moo (NS) 267 at 273 [15 ER 902
at 905].
(327) Also the submission of some interveners.
interpretation to be placed on s 6 of the 1910 Act (328). Indeed, the
proposition that the Crown is under a fiduciary duty to the holders of
native title to advance, protect or safeguard their interests while
alienating their land is self-contradictory. The sovereign power of
alienation was antipathetic to the safeguarding of the holders of native
title. In conferring the power of alienation, Parliament imposed no
guidelines to be observed in its exercise. The power was to be
exercised as the Governor in Council saw fit. At the time when the
1910 Act conferred the power of alienation on the Governor in
Council, native title was not recognised by the courts. The power was
not conditioned on the safeguarding or even the considering of the
interests of those who would now be recognised as the holders of
native title.
In the case of the Holroyd River Holding, the pastoral lessee went
into actual possession of the land but in the case of the Mitchellton
Leases, no lessee ever went into actual possession. At common law, a
lessee who had not entered into possession had an interest known as
interesse termini which carried a right to enter (329) and to maintain
an action for ejectment (330) but not an action for trespass (331). And,
as the lessee acquired no estate in the land prior to taking possession,
no reversion expectant on the termination of the leasehold interest
arose until possession was taken (332). The landlord's estate remained
unaffected until possession was taken by the tenant.
However, s 6(2) of the 1910 Act provided, inter alia, that "[t]he
grant or lease ... shall be made in the prescribed form, and being so
therein stated". Whatever be the position in other States, in
Queensland s 6(2) vested in the named lessee the estate or interest
conferred by the instrument of lease when the instrument was "so
made", that is, "made in the prescribed form" (333). True it is that
the subsection was concerned with the form of the instrument, but that
is not surprising when the issue of the lease is merely the Crown's
response to the lessee's application for a lease of an area which the
Minister has declared open for pastoral lease (334). It follows that on
the grant of a pastoral lease under the 1910 Act, the pastoral lessee
(328) Coe v The Commonwealth (1993) 68 ALJR 110 at 118; 118 ALR 193 at 204.
(329) Gillard v Cheshire Lines Committee (1884) 32 WR 943.
(330) Parsley v Day (1842) 2 QB 147 at 155-156 [114 ER 58 at 62].
(331) Ryan v Clark (1849) 14 QB 65 at 73 [117 ER 26 at 29].
(332) Copeland v Stephens (1818) I B & Aid 593 at 606-607 [106 ER 218 at 223];
Williams v Bosanquet (1819) I Brod & B 238 [129 ER 714\; ii Co Litt, 19th ed
(1832). P 270a.
(333) One effect of s 6(2) would have been the elimination of any requirement that. to
be effective. the Crown grant be a matter of record: see Enid Campbell, "Crown
Land Grants: Form and Validity", Australian Law journal, vol 40 (1966) 35, at
p 38.
(334) 1910 Act. ss 40, 41.
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was, in point of law, in possession of the land demised, irrespective of
the lessee actually going into possession of the land. It follows that, in
point of law, the lessees of the Mitchellton Leases were in the same
position as a lessee at common law who entered into possession
forthwith on the granting of the lease. In my opinion, the lessees under
each pastoral lease had possession and a right to exclusive possession
at the latest from the moment when the lease was issued. And, for
reasons presently to be stated, the Crown had the reversion expectant
on the termination of the lease.
4. Inconsistency between a lessee's rights and the continued right to
enjoy native title
The Wik and Thayorre submissions then raise their second basic
point, namely, whether extinguishment of native title is effected by
mere inconsistency between the continued right of indigenous
inhabitants at common law to the enjoyment of native title and the
pastoral lessee's right to exclusive possession created or conferred
pursuant to the 1910 Act or whether it is a practical inconsistency
between the exercise of those respective bundles of rights that can
alone extinguish native title. These submissions contended for the
latter view for the reason, it was submitted, that extinguishment
required proof of a clear and plain intention to extinguish native title.
As I held in Mabo {No 2J, 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" (335).
Those rights, although ascertained by reference to traditional laws and
customs are enforceable as common law rights. That is what is meant
when it is said that native title is recognised by the common law (336).
Unless traditional law or custom so requires, native title does not
require any conduct on the part of any person to complete it, nor does
it depend for its existence on any legislative, executive or judicial
declaration. The strength of native title is that it is enforceable by the
ordinary courts. Its weakness is that it is not an estate held from the
Crown nor is it protected by the common law as Crown tenures are
protected against impairment by subsequent Crown grant. 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 (337). 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
(335) Maho {No 2J (1992) 175 CLR I at 58. See also at 110, per Deane and Gaudron JJ;
at 195, per Toohey J.
(336) Maho {No 2J (1992) 175 CLR I at 59, 69; Western Australia v The
Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 422.
(337) Mabo {No 2J (1992) 175 CLR 1 at 63-64, per Brennan J; at 110-111, per Deane
and Gaudron JJ; at 195-196, per Toohey J.
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" (338). 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 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 2J (340):
"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."
Third party rights inconsistent with native title can be created by or
with the authority of the legislature in exercise of legislative power
but, as the power of State and Territory legislatures is now confined by
the Racial Discrimination Act 1975 (Cth), a State or Territory law
made or executive act done since that Act came into force cannot
effect an extinguishment of native title if the law or executive act
would not effect the extinguishment of a title acquired otherwise than
as native title (341).
The third category are laws and acts by which the Crown acquires a
full beneficial ownership that extinguishes native title. That may occur
by acquisition of native title by or under a statute, in which case the
question is simply whether the power of acquisition has been validly
(338) Mabo [No 2J (1992) 175 CLR I at 64, per Brennan J; at III, per Deane and
Gaudron JJ; at 196, per Toohey J.
(339) Mabo [No 2J (1992) 175 CLR I at 68; Western Australia v The Commonwealth
(Native Title Act Case) (1995) 183 CLR 373 at 422.
(340) (1992) 175 CLR I at 68; see also at 94, 197.
(341) Mabo v Queensland (Mabo [No 1]) (1988) 166 CLR 186 at 218-219, 231-232 and
see Western Australia v The Commonwealth (Native Title Act Case) (1995) 183
CLR 373 at 438-439.
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exercised. Or the Crown, without statutory authority, may have
acquired beneficial ownership simply by appropriating land in which
no interest has been alienated by the Crown. (Such an acquisition by
the Crown in right of a State or Territory would have occurred, if at
all, before the Racial Discrimination Act came into force.) In the latter
case, the appropriation of the land gives 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 laying a pipeline. Until such a use
takes place, nothing has occurred that might affect the legal status quo.
A mere reservation of the land for the intended purpose, which does
not create third party rights over the land, does not alter the legal
interests in the land (342), 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 or over the land used (343).
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.
In the present case, it would be erroneous, after identifying the
relevant act as the grant of a pastoral lease under the 1910 Act to
inquire whether the grant of the lease exhibited a clear and plain
intention to extinguish native title. The question is not whether the
Governor in Council intended or exhibited an intention to extinguish
native title but whether the right to exclusive possession conferred by
the leases on the pastoral lessees was inconsistent with the continued
right of the holders of native title to enjoy that title.
On the issue of a pastoral lease under the 1910 Act, the lessee
acquired an estate. There is no legal principle which would defer the
vesting of, or qualify, that estate in order to allow the continuance of a
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. As Mahoney J observed in Hamlet of
(342) See Williams v Attorney-General (NSW) (the Government House Case) (1913) 16
CLR 404 (HC); (1915) 19 CLR 343 (PC) and Randwick Corporation v Rutledge
(1959) 102 CLR 54. Mabo [No 2J rejected the dicta in these cases which treated
the Crown as the beneficial owner of all land in the Colony of New South Wales
upon settlement of the Colony, but their authority in other respects was left
unimpaired.
(343) Mabo [No 2J (1992) 175 CLR I at 68. per Brennan J; at 110, per Deane and
Gaudron JJ.
Baker Lake v Minister of Indian Affairs (344) with reference to Indian
land rights in Canada:
"The co-existence of an aboriginal title with the estate of the
ordinary private land holder is readily recognised as an absurdity.
The communal right of aborigines to occupy it cannot be reconciled
with the right of a private owner to peaceful enjoyment of his land.
However, its co-existence with the radical title of the Crown to land
is characteristic of aboriginal title."
If a holder of native title had only a non-accessory right, there may be
no inconsistency between that right and the rights of a pastoral lessee.
The law can attribute priority to one right over another, but it cannot
recognise the co-existence in different hands of two rights that cannot
both be exercised at the same time (345). To postulate a test of
inconsistency not between the rights but between the manner of their
exercise would be to deny the law's capacity to determine the priority
of rights over or in respect of the same parcel of land. The law would
be incapable of settling a dispute between the holders of the
inconsistent rights prior to their exercise, to the prejudice of that
peaceful resolution of disputes which reduces any tendency to self-
help. To postulate extinguishment of native title as dependent on the
exercise of the private right of the lessee (rather than on the creation or
existence of the private right) would produce situations of uncertainty,
perhaps of conflict. The question of extinguishment of native title by a
grant of inconsistent rights is - and must be - resolved as a matter
of law, not of fact. If the rights conferred on the lessee of a pastoral
lease are, at the moment when those rights are conferred, inconsistent
with a continued right to enjoy native title, native title is
extinguished (346).
The submission that inconsistency in the practical enjoyment of the
respective rights of the native title holders and of the pastoral lessees,
not inconsistency between the rights themselves, determines whether
native title has been extinguished is founded on the notion that the
1910 Act and pastoral leases should be given a restrictive operation so
as to permit, as far as possible, the continued existence of native title.
If that notion is not applied, there is "a significant moral shortcoming
in the principles by whichnative title is recognised," to adopt a
dictum of French J (347).
So much can be admitted. The position of the traditional Aboriginal
inhabitants of the land demised by the Mitchellton leases is a good
illustration. If it be right to hold that the mere grant of those leases
(344) [1980] I FC 518 at 566-567; (1979) 107 DLR (3d) 513 at 549.
(345) Yarmouth Corporation v Simmons (1878) 10 Ch D 518 at 527, cited by
McTiernan J in Aisbeu v City ofCamberwell (1933) 50 CLR 154 at 178-179.
(346) Mabo [No 2J (1992) 175 CLR I at 68.
(347) Re Waanyi People's Application (1995) 124 FLR I at 51; 129 ALR 118 at 166.
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extinguished the native title of the traditional Aboriginal inhabitants,
the law will be held to destroy the legal entitlement of the inhabitants
to possess and enjoy the land on which they are living and on which
their forebears have lived since time immemorial. That would be a
significant moral shortcoming. But the shortcoming cannot be
remedied by denying the true legal effect of the 1910 Act and pastoral
leases issued thereunder, ascertained by application of the general law.
The questions for decision by this Court are whether, on the issue of
the Mitchellton and Holroyd River leases under s 6 of the 1910 Act,
there was an inconsistency between the rights of the lessees and the
continued right of the Wik and Thayorre Peoples to enjoy their native
title and, if there were an inconsistency, which set of rights prevailed.
For the reasons stated, the lessees had the right of exclusive possession
and that right was inconsistent with native title (except for non-
accessory rights, if any) and, as the right of exclusive possession was
conferred on the lessees by the Crown as the sovereign power, that
right prevailed and the rights of the holders of native title were
extinguished.
That does not mean that the holders of native title became
trespassers. Their continued presence on the land would have been
expected and probably known by the lessees. Unless the lessees took
some action to eject them, their presence on the land would have been
impliedly consented to. It appears that the holders of native title were
never trespassers on the Mitchellton leases and, if their occupation of
the Holroyd River Holding was not objected to, they were never
trespassers on that land. Nevertheless, consistently with s 6(2), the
inhabitants of the land demised became liable to exclusion by the
lessee once the lease issued. From this it follows that native title could
not co-exist with the leasehold estate.
The holders of native title did not acquire a possessory title. A
possessory title arises from possession that is adverse to the title of the
true owner. Until the Crown lessees acquired their respective titles, the
holders of native title held the land by virtue of that title. After the
Crown lessees acquired their titles, the continued occupation by the
erstwhile holders of native title is explicable by lessors' consent rather
than by possession adverse to the lessors' possession.
The next' question is: was native title extinguished on and by the
issuing of the leases or was native title merely suspended during the
terms of the respective leases? The answer to this question depends on
the nature of the Crown's reversion.
5. The nature of the Crown's reversion
In Mabo [No 2J I expressed the view (348):
"If a lease be granted, the lessee acquires possession and the Crown
(348) Mabo [No 2J (1992) 175 CLR I at 68; see also at 72-73.
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 together raise two grounds of challenge to the
view I expressed in Mabo [No 2]: first, that a pastoral lease is issued
in exercise of a statutory power, not in exercise of the Crown's
proprietary rights in the land and that the interest of the Crown on
reversion is no more than the radical title or, alternatively, no more
than the minimum proprietary interest required to support the
leasehold interest possessed by the lessee; and second, the rights and
interest of the native title holders are suspended only to the extent
necessary to admit the interest of the pastoral lessee and, on expiry of
the term (349) or earlier determination of the lease, revive (350).
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. It is
submitted that, although s 135 of the 1910 Act provided that on
forfeiture or other determination of a lease prior to expiry of the term
"the land shall revert to His Majesty and become Crown land, and
may be dealt with under this Act accordingly", that section said
nothing as to the Crown's legal and beneficial interest in the land but
merely ensured that the Crown dealt with the land after it reverted to
His Majesty in accordance with the Act. This argument accounts for
the application of s 135 to the expiry of licences as well as to the
determination of leases.
If it were right to regard Crown leaseholds not as estates held of the
Crown but merely as a bundle of statutory rights conferred on the
lessee, it would be equally correct to treat a "grant in fee simple" not
as the grant of a freehold estate held of the Crown but merely as a
larger bundle of statutory rights. If the grant of a pastoral lease
conferred merely a bundle of statutory rights exercisable by the lessee
over land subject to native title in which the Crown (on the hypothesis
advanced) had only the radical title, the rights of the lessee would be
jura in re aliena: rights in another's property. And, if leases were of
that character, an estate in fee simple would be no different. Then in
(349) Or, perhaps, on expiry of the term to which the lessee becomes entitled by
exercise of a right of renewal.
(350) The Thayorre submission contends, in the alternative, for a recognition anew of
the native title that was extinguished by the lease.
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whom would the underlying or residual common law title subsist?
Presumably, in the holders of native title. But such a theory is
inconsistent with the fundamental doctrines of the common law (351).
And it would equate native title with an estate in fee simple which, ex
hypothesi, it is not. To regard interests derived from the Crown as a
mere bundle of statutory rights would be to abandon the whole
foundation of land law applicable to Crown grants. In Mabo [No 2J,
Deane and Gaudron 11 declared that the general common law system
of land law applied from the establishment of the first Australian
colony. Their Honours said (352):
"It has ... long been accepted as incontrovertible that the
provisions of the common law which became applicable upon the
establishment by settlement of the Colony of New South Wales
included that general system of land law (353). It follows that, upon
the establishment of the Colony, the radical title to all land vested in
the Crown. Subject to some minor and presently irrelevant matters,
the practical effect of the vesting of radical title in the Crown was
merely to enable the English system of private ownership of estates
held of the Crown to be observed in the Colony. In particular, the
mere fact that the radical title to all the lands of the Colony was
vested in the British Crown did not preclude the preservation and
protection, by the domestic law of the new Colony, of any
traditional native interests in land which had existed under native
law or custom at the time the Colony was established." (Emphasis
added.)
The English system of private ownership of estates held of the Crown
rests on "two fundamental doctrines in the law of real prop-
erty" (354), namely, the doctrine of tenure and the doctrine of estates.
By the interlocking doctrines of tenure and estates, the land law
provides for the orderly enjoyment in succession of any parcel of land.
The doctrine of tenure creates a single devolving chain of title and the
doctrine of estates provides for the enjoyment of land during
successive periods (355). The doctrines of tenure (with its incident of
escheat (356 and estates ensure that no land in which the Crown has
(351) See Simpson, A History of the Land Law, 2nd ed (1986), p 47.
(352) Mabo [No 2J (1992) 175 CLR I at 81.
(353) See, eg, Delohery v Permanent Trustee Co (NSW) (1904) I CLR 283 at 299-300;
Williams v AI/orney-General (NSW) (1913) 16 CLR 404.
(354) Megarry and Wade, Law of Real Property, 5th ed (1984), P 14.
(355) As Pollock and Maitland, History of English Law before the time of Edward J, 2nd
ed, (1898: reprint 1952), vol 2, P 10 observe: .. Proprietary rights in land are, as
we may say, projected upon the plane of time. The category of quantity, of
duration, is applied to them."
(356) Williams and Eastwood on Real Property, 24th ed (1933), pp 34-35; Pollock and
Maitland, History of English Law, 2nd ed (1898: reprint 1952), vol I, pp 35 Iff.
granted an interest is ever without a legal owner (357). The creation of
a tenure, however limited the estate in the particular parcel of land
may be, establishes exhaustively the entire proprietary legal interests
which may be enjoyed in that parcel of land. If the interests alienated
by the Crown do not exhaust those interests, the remaining proprietary
interest is vested in the Crown. In In re Mercer (358), Jessel MR said:
"If a freehold estate comes to an end by death without an heir, or
by attainder, it goes back to the Crown on the principle that alI
freehold estate originalIy came from the Crown, and that where
there is no one entitled to the freehold estate by law it reverts to the
Crown."
In this country, the Crown takes either by reversion on expiry of the
interest granted or by escheat on failure of persons to take an interest
granted. It is unnecessary for present purposes to distinguish between
them (359).
By exercise of a statutory power to alienate an estate in land, the
Crown creates, subject to statute, a tenure (360) between the Crown
and the alienee. It folIows that, subject to statute - and alI powers of
alienation of interests in land in Australia are governed by
statute (361) - where a leasehold estate is the only proprietary
interest granted by the Crown in a parcel of land (362) 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 (363).
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 (364); 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.
(357) See the note on Elliott. "Land Without An Owner", Law Quarterly Review.
vol 70 (1984) 25.
(358) (1880) 14 Ch D 287 at 295; and see In re Strathblaine Estates Ltd (1948) Ch 228
at 231, per Jenkins J.
(359) The distinction is explained by Pollock and Maitland, History of English Law, 2nd
ed (1898: reprint 1952), vol 2, pp 22-23.
(360) That is, the leasehold estate is held of the Crown. It is a "tenure" in the strict
common law sense of the term, not merely in the sense in which "tenure" is used,
often loosely, in Crown lands legislation.
(361) Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533.
(362) In this context, where ownership of minerals is reserved from a grant, the
reservation is truly an exception, that is, the minerals do not form part of the
parcel of land that is the subject of the grant of the leasehold estate.
(363) Lyttleton's Tenures (1841) pars 328-330. pp 374-376.
(364) Mabo [No 2J (1992) 175 CLR I at 48-49.
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Consistently with our constitutional history and our legal system, it is
recognised as a common law interest in land provided it has not been
extinguished by statute, by a valid Crown grant of an estate
inconsistent with the continued right to enjoy native title or by the
Crown's appropriation and use of land inconsistently with the
continued enjoyment of native title. As the majority judgment in
Western Australia v The Commonwealth (Native Title Act Case) (365)
said:
"Under the common law, as stated in Mabo {No 2J, Aboriginal
people and Torres Strait Islanders who are living in a traditional
society possess, subject to the conditions stated in that case, native
title to land that has not been alienated or appropriated by the
Crown." (Emphasis added.)
It was only in respect of unalienated and unappropriated land that
native title was recognised as subsisting. Thus I noted in Mabo
{No 2J (366):
"As the Governments of the Australian Colonies and, latterly, the
Governments of the Commonwealth, States and Territories have
alienated or appropriated to their own purposes most of the land in
this country during the last 200 years, the Australian Aboriginal
peoples have been substantially dispossessed of their traditional
lands. They were dispossessed by the Crown's exercise of its
sovereign powers to grant land to whom it chose and to appropriate
to itself the beneficial ownership of parcels of land for the Crown's
purposes.' ,
Native title is not recognised in or over land which has by alienation
become subject to inconsistent rights or which has by Crown use
become unavailable for continued enjoyment of native title.
The provisions of the 1910 Act admit of no interest in land the
subject of a pastoral lease being held by any person other than the
Crown, the lessee and persons taking an interest under the lease.
Historically, it is impossible to suppose that Parliament, in enacting the
1910 Act (or, for that matter, the 1962 Act) might have intended that
any person other than the Crown should have any reversionary interest
in land subject to a pastoral lease. In 1910 (as in 1962), no recognition
was accorded by Australian courts to the existence of native title in or
over land in Australia. On the contrary, the common understanding
was that, from the beginning of colonial settlement, Crown grants were
made out of the Crown's proprietary title to all land in the
colony (367). The 1910 Act makes it clear that, on the issue of a
pastoral lease, the reversion ',vas held by the Crown. Rent was a debt
(365) (1995) 183 CLR 373 at 452.
(366) (1992) 175 CLR I at 68.
(367) See the cases cited in Mabo INo 2J (1992) 175 CLR I at 26-28.
"due to His Majesty" (s 127(3)), the Minister was the recipient of a
notice of intention to surrender (s 122) and forfeiture was enforced
only if the Governor in Council so decided (s 132). On forfeiture, the
land reverted to His Majesty (s 135); on forfeiture or surrender,
improvements to the property were deemed to be vested in the Crown
but were to be paid for by the "incoming lessee, selector, or
purchaser" (s 124); and provision was made for dealing with land
"pursuant to a certificate given under 'The Escheat (Procedure and
Amendment) Act, 1891'" (s 177). The last-mentioned Act provided a
simplified procedure for ascertaining' 'the failure of the heirs or next-
of-kin of an intestate, or the alienage of a grantee, or such other facts,
as may be necessary to establish the title of Her Majesty in right of the
Crown or otherwise" (368). The procedure was prescribed in order to
determine, inter alia, questions arising "as to the title of Her Majesty
in right of the Crown to any land or interest in land in any case of
escheat or alleged escheat" (369). Thus, the 1910 Act treated the
Crown as having not only the power to issue a lease and thus entitle
the lessee to a leasehold estate but also as having the reversionary
interest which, under the ordinary doctrines of the common law, a
lessor had to possess in order to support and enforce the relationship of
landlord and tenant. The 1910 Act also conferred certain statutory
rights on pastoral lessees, the exercise of which would require the
carving of further proprietary interests out of the reversion. The lessee
of a pastoral lease whose term had expired had a priority right (s 72),
if the land was then open to selection (ss 48, 50), to apply for a
selection, some categories of which conferred a right to acquire the
selection in fee simple (ss 100, 106, 108, 110, 114) and others a right
to take it on perpetual lease (s 104). These interests were clearly
intended to be carved out of the Crown's reversionary title, not out of
the title of a third party.
The Wik submission then denies the Crown's title to the reversion
on the ground that it is not assignable. That objection could as easily
be raised to the proprietary interest of the Crown. But the Crown
"assigns" a proprietary interest in its land by grant unless the Crown
has acquired an interest that is assignable, for example, the interest of
a sub-lessor.
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.
Moreover, a new theory which undermines those doctrines would be
(368) Section 5 of the Escheat (Procedure and Amendment) Act 1891 (Imp) (the Escheat
Act).
(369) Section 4 of the Escheat Act.
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productive of uncertainty having regard to the nature of native title.
That is a problem which will be examined in the next section.
6. Temporary suspension of native title
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. This submission is supported by the
thirteenth respondent (ATSIC) which submits that the Crown should
not be taken, upon the granting of a limited estate, to appropriate to
itself ownership of the reversion for an unlimited time. At common
law, a lessor who grants a leasehold estate needs an estate out of
which the leasehold estate is carved (370), else there can be no
demise (371). The lessor needs no more to support the grant than an
estate greater (or deemed to be greater) than the estate granted (372).
The demise in a pastoral lease would be supported if the Crown's
reversion were limited to some nominal period beyond the term of the
lease. That would be a sufficient estate to allow the Crown to enforce
conditions binding on the lessee (373).
Must the Crown's title be treated as any greater when the land is
subject to a claim of native title? 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
of the lease, if not as a matter of title then as a matter of
seigniory (374).
Nevertheless, the hypothesis seems to be internally consistent. But it
fails to attribute to the doctrines of tenure and estates their function of
(370) Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608
at 622.
(371) Woodfall's Landlord and Tenant, 15th ed (1893), vol I, par 1.005.
(372) Javad v Aqil [1991] I WLR 1007 at 1012; [1991] I All ER 243 at 247.
(373) Hall v Ewin (1887) 37 Ch D 74.
(374) Pollock and Maitland, History of English Law, 2nd ed (1898: reprint 1952), vol I,
P 351; Williams and Eastwood on Real Property, 24th ed (1933), pp 34-35.
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. If the holders of native title were recognised as the owners of
an estate in remainder in the land, could the priority right to a selection
enjoyed by a lessee (s 72) be exercised? And would the holders of
native title have become liable to pay for the improvements to the land
effected during the expired lease? (s 124) To what extent was the
discretion to enforce a forfeiture against a lessee affected by the
supposed subsistence of native title in the land? In the unusual event
of the determination of an estate in fee simple, would the land revert to
the Crown or would it be taken by the holders of native title? And,
since the Racial Discrimination Act 1975 (Cth) commenced, would the
provisions (375) which annex statutory rights to a pastoral lease (eg, a
right to receive an offer of a new lease) be ineffective by reason of
s 109 of the Constitution?
These questions indicate some of the problems that arise once the
fundamental doctrines that govern the title to land granted by the
Crown under the 1910 Act are departed from. In my opinion, the
common law could not recognise native title once the Crown alienated
a freehold or leasehold estate under that Act. Consequently, the
common law was powerless to recognise native title as reviving after
the determination of a pastoral lease issued under the 1910 Act. Does
equity provide any relief to the erstwhile holders of native title?
7. The claims for equitable relief
The Wik and Thayorre submissions assert the existence of a
fiduciary duty owed by the Crown to the indigenous inhabitants of the
leased areas. The duty is said to arise from the vulnerability of native
title, the Crown's power to extinguish it and the position occupied for
many years by the indigenous inhabitants vis-a-vis the Government of
the State. These factors do not by themselves create some free-
standing fiduciary duty. It is necessary to identify some action or
function the doing or performance of which attracts the supposed
fiduciary duty to be observed (376). The doing of the action or the
performance of the function must be capable of affecting the interests
of the beneficiary and the fiduciary must have so acted (377) that it is
reasonable for the beneficiary to believe and expect that the fiduciary
will act in the interests of the beneficiary (or, in the case of a
partnership or joint venture, in the common interest of the beneficiary
(375) See the 1962 Act, Pt VI Divs I and II, especially s 166.
(376) Breen v Williams (1996) 186 CLR 71 at 82.
(377) Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 205.
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and fiduciary (378)) to the exclusion of the interest of any other person
or the separate interest of the beneficiary (379).
In the present case the only relevant function perfonned by the
Crown is the exercise of the power of alienation. That is the only
power the exercise of which relevantly affects native title. With all
respect for the opposing view, I am unable to accept that a fiduciary
duty can be owed by the Crown to the holders of native title in the
exercise of a statutory power to alienate land whereby their native title
in or over that land is liable to be extinguished without their consent
and contrary to their interests.
The exercise of statutory powers characteristically affects the rights
or interests of individuals for better or worse. If the exercise of a
discretionary power must affect adversely the rights or interests of
individuals, it is impossible to suppose that the repository of the power
shall so act that the beneficiary might expect that the power will be
exercised in his or her interests. The imposition on the repository of a
fiduciary duty to individuals who will be adversely affected by the
exercise of the power would preclude its exercise. On the other hand, a
discretionary power - whether statutory or not - that is conferred on
a repository for exercise on behalf of, or for the benefit of, another or
others might well have to be exercised by the repository in the manner
expected of a fiduciary (380). Thus in Guerin v The Queen (381), the
Crown accepted a surrender by an Indian band of native title to land in
order that the land be leased by the Crown to a third party. The
statutory scheme which provided for the surrender to the Crown and
its subsequent dealing with the land imposed on the Crown the duty to
act "on the band's behalf' (382), as "the appointed agent of the
Indians ... and for their benefit" (383) or for their "use and
benefit" (384). Similarly, in the United States the statutory scheme for
dealing with Indian land requires the sanction of a "treaty or
convention entered into pursuant to the Constitution" (385). The
scheme has its origin in the Indian Nonintercourse Act 1790
(US) (386) which, in its successive fonns, has been held to impose on
(378) Chan v Zacharia (1984) 154 CLR 178; United Dominions Corporation Ltd v
Brian Pty Ltd (1985) 157 CLR I.
(379) Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41.
(380) See United States v Mitchell (1983) 463 US 206 at 224.
(381) [1984] 2 SCR 335; (1984) 13 DLR (4th) 321; see also Blueberry River Indian
Band v Canada (1995) 130 DLR (4th) 193 at 203,209.
(382) Guerin v The Queen [1984] 2 SCR 335 at 375. 379; (1984) 13 DLR (4th) 321
at 334, 340.
(383) Guerin v The Queen [1984]2 SCR 335 at 392; (1984) 13 DLR (4th) 321 at 347.
(384) Guerin v The Queen [1984] 2 SCR 335 at 348-349; (1984) 13 DLR (4th) 321
at 356-357.
(385) 25 USC 177.
(386) Joint Tribal Council of Passamaquoddy Tribe v Morton (1975) 528 F 2d 370
at 379.
the Federal Government "a fiduciary duty to protect the lands covered
by the Act" (387).
The power of alienation conferred on the Crown by s 6 of the 1910
Act is inherently inconsistent with the notion that it should be
exercised as agent for or on behalf of the indigenous inhabitants of the
land to be alienated. Accordingly, there is no foundation for imputing
to the Crown a fiduciary duty governing the exercise of the power.
This conclusion precludes the acceptance of a further submission
made on behalf of the Wik and Thayorre Peoples. That submission
sought to impose a constructive trust in their favour of the Crown's
reversionary interest in the leased land. If the constructive trust be
viewed as a remedial institution, as Deane J viewed it in Muschinski v
Dodds (388), it is nevertheless available "only when warranted by
established equitable principles or by the legitimate processes of legal
reasoning, by analogy, induction and deduction, from the starting point
of a proper understanding of the conceptual foundation of such
principles" (389). Given that no fiduciary duty was breached by the
Crown in issuing the pastoral leases under s 6 of the 1910 ACI and that
the issue of those leases destroyed native title, there is no principle of
law or equity which would require the imposition of a constructive
trust on the reversion to restore what the holders of native title had
lost.
The Wik submission raises another equitable basis of relief. It is
said that, by reason of the acquiescence of the State and the pastoral
lessees in the continued exercise by the Wik Peoples of their native
title rights, it would be unconscionable now to hold them liable to
ejectment without investigation of the basis or bases on which they
have remained in occupation. The propounded basis of relief depends,
of course, on contested issues of fact but that basis was not pleaded.
Prior to the hearing in this Court, the submission was not argued. It
would not be appropriate to express any view on the merits of the
submission at this stage. This appeal relates to the answers given by
Drummond J to the questions determined as preliminary issues. Those
questions turn on the subsistence of native title, not on the existence of
an equity which would entitle the Wik Peoples to remain on the land
to continue to exercise the rights which they would have been entitled
to enjoy if native title still subsisted.
In the result, I would hold the answers given by Drummond J to
questions 18 and lc to be correct. The Wik and Thayorre Peoples'
claims fail because native title was extinguished on the issue of the
leases under s 6 of the 1910 Act. It is unnecessary to advert to the
effect of the 1962 Act. The principles of the law may thus be thought
(387) United Stales v University oj" New Mexico (1984) 731 F 2d 703 at 706, citing
Passamaquoddy Tribe v Morton (1975) 528 F 2d 370 at 379.
(388) (1985) 160 CLR 583 at 614.
(389) Muschinski v Dodds (1985) 160 CLR 583 at 615.
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to reveal "a significant moral shortcoming" which can be rectified
only by legislation or by the acquisition of an estate which would
allow the traditions and customs of the Wik and Thayorre Peoples to
be preserved and observed. Those avenues of satisfaction draw on the
certainty of proprietary rights created by the sovereign power. Such
rights, unlike the rights of the holders of native title, are not liable to
extinguishment by subsequent executive action.
8. Claims against Comaleo, Pechiney and Queensland
Act 1957 (Q) (the Comalco Act) provided for the making of an
agreement between the State of Queensland and Comalco. Section 2
provides:
"The Premier and Chief Secretary is hereby authorised to make,
for and on behalf of the State of Queensland, with Commonwealth
Aluminium Corporation Pty Limited, a company duly incorporated
in the said State and having its registered office at 240 Queen Street,
Brisbane, in the said State, the Agreement a copy of which is set out
in the Schedule to this Act (herein referred to as 'the Agreement'). "
Section 3 provides:
"Upon the making of the Agreement the provisions thereof shall
have the force of law as though the Agreement were an enactment
of this Act.
The Governor in Council shall by Proclamation notify the date of
the making of the Agreement."
The Agreement set out in the schedule required the State, inter alia,
to grant to Comalco a Special Bauxite Mining Lease for an initial term
of eighty-four years (cl 8, par (a)). The form of lease was
prescribed (390). The Agreement was made on 16 December 1957 and
the lease was issued on 3 June 1965 as ML7024.
The Wik submission contends that the Agreement and ML7024
were entered into in disregard of the rules of procedural fairness and in
breach of the State's fiduciary duty to the Wik Peoples and that
Comalco was a party to that breach. It is further contended that the
State and Comalco were unjustly enriched by the breach. Relief is
claimed on the footing that the decisions to enter into the Agreement
and to grant ML7024 were invalid and that the Agreement and
ML7024 are invalid. The relief claimed relates to impairment or loss
of the Wik Peoples' enjoyment of native title rights and possessory
rights in or over the land leased and the benefits deri ved by Comalco
from exploiting the lease. Comalco's response is that, as s 3 gives the
Agreement the force of law, no claim by the Wik Peoples can be based
(390) By the Third Schedule to the Agreement.
on any irregularity or breach of duty that might have occurred in the
course of negotiating or executing the Agreement.
Section 3 was referred to by Dunn J in Commonwealth Aluminium
Corporation Ltd v Attorney-General (Q) (391) in these terms:
"By providing, in s 3, that upon the making of the Agreement its
provisions 'shall have the force of law as though the Agreement
were an enactment of this Act,' legal effect is given to provisions
which otherwise would lack such effect, because of such legislation
as I have already discussed. The Agreement remains something
apart from the Act, however, the legislative artifice adopted in order
to give it effect does not make it, in point of law, 'an enactment of
this Act'."
This judgment led to the submission that the effect of s 3 was limited
to the overriding of particular legislative impediments to the making or
implementation of the Agreement. That is too narrow a view of the
operation of s 3. To take one example: that view would not admit that
mandamus might have gOlle to compel the granting of the Special
Bauxite Mining Lease pursuant to cl 8 of the Agreement, although the
State's obligation to grant that lease was the leading purpose of the
Comalco Act.
However, the sufficiency of the Comalco response turns on the
operation attributed to s 2 as well as to s 3 of the Comalco Act.
Although s 2 authorises, but does not command, the Premier and Chief
Secretary to make the Agreement, the authorisation it gives is
unqualified by any requirement as to the performing of a fiduciary
duty or the according of natural justice. So soon as the Agreement is in
fact made, s 3 operates to give it the force of law "as though [it] were
an enactment of this Act". It follows that, the Agreement having been
made, the powers conferred by the Agreement acquire the force of
statutory powers. Thus s 3 operates to give validity to what is done in
their exercise (392). Therefore the granting of the Special Bauxite
Mining Lease was valid. Moreover, whatever consequences flowed to
the Wik Peoples from the granting of that lease could not be actionable
loss or damage, for those consequences were the result of an act
sanctioned by the Comalco Act.
Nor could relief be granted in relation to the benefits derived by
Comalco's exploitation of the lease for those benefits flowed to
Comalco from the granting of the lease pursuant to legislative
authority.
The Comalco response is thus good in law.
The Wik claim against Aluminium Pechiney Holdings Pty Ltd
(Pechiney) and the submission in support arise from the making and
(391) [1976] Qd R 231 at 260.
(392) Corporation of DireClOr of Aboriginal and Islanders Advancement v Peinkinna
(1978) 52 ALJR 286; 17 ALR 129.
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implementing of an Agreement (the Associates Agreement) authorised
by the Aurukun Associates Agreement Act 1975 (Q). The Associates
Agreement provided for the grant of a Special Bauxite Mining Lease
(c1 2 of Pt III) for forty-two years (c1 3 of Pt III) in a form set out in
the Fourth Schedule to that Agreement (c1 5 of Pt III). The provisions
of the Aurukun Associates Agreement Act, the allegations in the
statement of claim with respect to the making of the Associates
Agreement under that Act and the relief claimed are indistinguishable
from the provisions of the Comalco Act and the allegations and the
relief claimed against Comalco. Pechiney's response, substantially
identical to Comalco's response, is also good in law. The claim against
Pechiney seeks relief in respect of an earlier agreement (the Access
Agreement) between the Director of Aboriginal and Islanders'
Advancement and certain corporations including Pechiney. The Access
Agreement was scheduled to the Associates Agreement, the latter
being given the force of law. The third respondent (the Aboriginal and
Islander Affairs Corporation) is the statutory successor of the Director
and is sued in that capacity. An account is sought against both
Pechiney and the third respondent by reason of their entry into the
Access Agreement and the obtaining of benefits under it. However, in
Corporation of Director of Aboriginal and Islanders Advancement v
Peinkinna (393) the Privy Council held that the Aurukun Associates
Agreement Act ratified the Access Agreement and recognised it as
valid and subsisting. There is no reason to dissent from that view, the
consequence of which is that neither entry into the Access Agreement
nor the obtaining of benefits under it can give rise to a cause of action
in the Wik Peoples. It follows that the answers given by Drummond J
to questions 4 and 5 were correct.
I would dismiss the appeals and make orders for costs against the
Wik Peoples and the Thayorre People in favour of those parties who
opposed their claims. I would make no order as to the costs to be paid
to or by other parties.
DAWSON J. In the Native Title Act Case (394) I indicated that I
intended to follow the decisions of this Court in Mabo v Queensland
{No JJ (395) and Mabo v Queensland {No 2J (396). Following that
course, I am able to express my agreement with the judgment of the
Chief Justice in these matters. I have nothing which I wish to add.
(393) (1978) 52 ALJR 286; 17 ALR 129.
(394) Western Australia v The Commonwealth (1995) 183 CLR 373.
(395) (1988) 166CLR 186.
(396) (1992) 175 CLR I.
187 CLR I]
TOOHEY 1.
OF AUSTRALIA 101
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Introduction
These proceedings, which were removed into this Court pursuant to
s 40 of the Judiciary Act 1903 (Cth), have their origin in an action
brought by the Wik Peoples in the Federal Court of Australia. That
action was initiated before the coming into operation of the Native
Title Act 1993 (Cth). The catalyst for the action was the decision of
this Court in Mabo v Queensland [No 2J (397).
The proceedings in the Federal Court were described by
Drummond J in the following terms (398):
"The action was brought by the Wik Peoples, an Aboriginal clan or
group, for a declaration that it has certain native title rights over a
large area of land in North Queensland. They also claim damages
and other relief, if it be found that their native title rights have been
extinguished. One of the respondents is the Thayorre People,
another Aboriginal clan or group, who have cross-claimed for a
similar declaration in respect of lands that, in part, overlap those the
subject of the Wik Peoples' claim."
However, by the time of his Honour's judgment the Wik Peoples had
included an alternative claim under the Native Title Act though that
claim is not the subject of the judgment or of this appeal. Although his
Honour speaks of "native title rights" (399), that is not precisely the
language of the relevant pleadings. Paragraph 8 of the statement of
claim in its amended form filed on behalf of the Wik Peoples asserts
that "The Wik peoples and their predecessors in title are and have
always been the holders of Aboriginal title in ... the claimed land".
"Aboriginal title" is defined in par I of the statement of claim as
meanmg
"title to land ansmg by virtue of Aboriginal tradition and
recognised by the common law of Australia and has the same
meaning as 'native title' as defined in the Native Title Act, 1993
(CTH)" .
"Native title" and "native title rights and interests" have a
common definition in s 223 of the Native Title Act. Each expressio'l
means
"the communal, group or individual rights and interests of
Aboriginal peoples or Torres Strait Islanders in relation to land or
waters, where:
(397) (1992) 175 CLR I.
(398) Wik Peoples v Queensland (1996) 63 FCR 450 at 454.
(399) The expressions "native title" and "native title rights" are now part of the
vocabulary of the law. However, I still confess a preference for "traditional title".
See Mabo [No 2[ (1992) 175 CLR I at 188.
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(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."
The significance of the definition for the appeal by the Wik Peoples
lies largely in a system of "rights and interests" to which the
definition adverts. This will become clearer as these reasons progress.
The cross-claim of the Thayorre People also uses the language of
"aboriginal title". Their statement of claim does not define that title
quite in the way that the pleading of the Wik Peoples does; rather it
describes the expression by reference to their and their predecessors'
occupation and use of the land claimed and their connection with it
"in accordance with a system of rights, duties and interests
exercised, acknowledged and enjoyed by Thayorre individuals,
families, clans and groups in accordance with their traditional laws
and customs" .
Nevertheless, they claim title by reason of "a system of rights, duties
and interests". Again, the significance of this formulation will emerge
later in these reasons.
Accordingly, references in the judgment of Drummond J to native
title rights must be understood in light of the pleadings, as must the
use of the expression in these reasons.
The land claimed by the Wik Peoples and the Thayorre People (the
appellants) includes land over which pastoral leases were granted by
the Crown. The former claim encompasses land the subject of the
Holroyd River Holding lease (the Holroyd lease). The Mitchellton
pastoral leases (the Mitchellton leases) were granted over land within
the area of claim by the Thayorre People and also by the Wik Peoples.
Central to the claims was the argument that native title rights had
survived the granting of these pastoral leases. Save in one respect,
which is discussed later in these reasons under the heading' 'Non-entry
into possession", no attack was made by the appellants on the efficacy
of the pastoral leases. In effect the Wik Peoples and the Thayorre
People each argued for native title or aboriginal title, "co-existing"
with the interests of the lessees. In the event of an inconsistency
between rights exercisable by a lessee and rights exercisable by the
holders of native or aboriginal title, the appellants accepted that the
former would prevail. While accepting the language of
extinguishment, the appellants were disposed to argue in terms of
restrictions on the enforceability of their rights.
On 29 January 1996 Drummond J gave judgment on five
preliminary questions which had been identified for the purposes of
the proceedings in the Federal Court (400). In the course of those
answers, his Honour held that each of the leases in question conferred
on the lessee "rights to exclusive possession" of the land and that
thereby the grant of each lease "necessarily extinguish[ed] all
incidents of Aboriginal title ... in respect of the land demised under
the pastoral lease". This is a considerable over-simplification of
Drummond 1's judgment but it will suffice at this stage in order to
show how the matters come before this Court (401). It should be
noted, however, that his Honour did not decide whether the appellants
are the holders of native title rights in respect of the leased land. That
matter was not explored and is shut out by his Honour's answers to the
questions. The result is to clothe the principal questions with a certain
unreality.
Drummond J also answered questions bearing on claims by the
appellants against the State of Queensland, Comalco Aluminium Ltd,
and Aluminium Pechiney Holdings Pty Ltd (402). By those claims the
Wik Peoples challenged the validity of Special Bauxite Mining Leases
which had been granted by the State to mining companies under the
authority of Queensland legislation.
On 22 March 1996 Spender J granted the appellants leave to appeal
to the Full Court of the Federal Court against the judgment of
Drummond J. Leave was necessary because his Honour's judgment
was interlocutory and did not dispose finally of the proceedings.
Notices of motion were filed in the Federal Court seeking removal of
both matters to the High Court. An order to that effect was made on
15 April.
An amended notice of appeal filed in this Court on 28 May excised
any challenge to the answer given by Drummond J to the first question
asked of him, namely, whether the power of the Queensland
Parliament at the time of its establishment and thereafter was subject
to a limitation that prevented it from enacting laws providing for the
grant of pastoral leases that do not preserve native title rights. His
Honour answered that question adversely to the appellants.
In its present form the notice of appeal is primarily a challenge to
the conclusion of Drummond J that the grant of the Holroyd lease and
the Mitchellton leases in each case extinguished any native title rights
in the land. When the hearing began in this Court, leave to intervene
was granted to State and Territory governments and others. However,
the Court made it clear that it proposed to deal only with the particular
questions raised by the notice of appeal, questions which related
specifically to the Holroyd and Mitchellton leases.
His Honour's approach to the significance of the pastoral leases in
(400) Wik Peoples v Queensland (1996) 63 FCR 450.
(401) The relevant questions and the answers given by Drummond J are set out in full in
the judgment of Brennan CJ.
(402) Those entities are respectively the first, fourth and fifth respondents to the appeals.
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question, dictated as he considered by the majority judgment of the
Full Court of the Federal Court in North Ganalanja Aboriginal
Corporation v Queensland (403), was in the following terms (404):
"I regard the majority decision as binding authority that the
executive act of granting a pastoral lease under Crown lands
legislation that does not differ materially from the Land Act 1902
(Q) will extinguish any native title rights that existed in respect of
the Crown land the subject of the lease, provided the lease confers a
right to exclusive possession for other than a short period on the
lessee and also provided the lease does not contain a reservation
sufficient to preserve those native title rights."
The conclusion reached by the Full Court in North Ganalanja was
that the 1904 pastoral lease under consideration in that case necessarily
extinguished any native title rights that may have existed in the land
leased, for the reason that the lease conferred a right of exclusive
possession on the lessee. This right of exclusive possession, though
limited in time to the duration of the lease, was held sufficient to
extinguish all native title rights. Drummond J observed (405):
"I also regard the majority decision as authority binding on me that
a lease will confer a right to exclusive possession sufficient to have
that extinguishing effect, notwithstanding the fact that the lessee's
interest is fettered by conditions and statutory limitations of the kind
to which the 1904 lease was subject and notwithstanding that the
grant is expressed to be 'for pastoral purposes only', as was the
1904 lease."
Nevertheless, his Honour qualified this approach, at least to the
extent of recognising that there may be a question of degree involved
in determining whether a pastoral lease does extinguish native title
rights where a short term is involved. He referred also to the extent of
any restrictions imposed by the lease and the statute pursuant to which
it was granted as matters relevant to the issue whether
"the particular lease truly does confer a right of exclusive
possession or at least a right of possession sufficiently exclusive to
extinguish native title" (406).
The Holroyd River Holding Lease
The story of the Holroyd lease begins with Instrument of Lease
No 4652, dated 8 February 1945. It is titled "Lease of Pastoral
Holding under Part III, Division I of 'The Land Acts, 1910 to
(403) (1995) 61 FCR I.
1943'" (407). The lease is expressed to be for "pastoral purposes
only". The lessee is identified as Marie Stuart Perkins and the term of
the lease is thirty years from I October 1944 at a yearly rent. The area
leased is 1,119 square miles. Reference is made in the instrument to a
notification dated 8 June 1944
"declaring the said land open for Pastoral Lease, and to al1 other
rights, powers, privileges, terms, conditions, provisions, exceptions,
restrictions, reservations, and provisoes referred to, contained, or
prescribed in and by the said Acts (408), 'The Mining on Private
Land Acts, 1909 to 1929,' and 'The Petroleum Acts, 1923 to 1939,'
or any Regulations made or which may hereafter be made under the
aforesaid Acts or any of them" .
The lease also contains reservations of minerals and petroleum and
rights of access for the purpose of searching for and obtaining them. It
concludes:
"AND WE Do FURTHER RESERVE the right of any person duly
authorised in that behalf by the Governor of Our said State in
Council at al1 times to go upon the said Land, or any part thereof,
for any purpose whatsoever, or to make any survey, inspection, or
examination of the same."
On 20 December 1972 the then lessees, John Herbert Broinowski,
John Darling, James Maurice Gordon and Ross Farm Pty Ltd, applied
under s 155 of the Land Acts 1962-1967 for the grant of a new lease of
the holding. The application contains a description of the land by the
lessees: natural waters only; bloodwood, ironwood, stringy bark, ti-
tree, messmate, ironstone ridges with some melon-hole country, some
spear grass with some kangaroo, purely breeding country;
approximately one beast to 60 acres; country suitable for cattle
breeding only; no improvements; no accommodation.
There fol1owed correspondence between the Land Administration
Commission and the lessees, as a result of which the subsisting lease
was surrendered so that a new lease might issue. The new lease, which
is the current lease, is Instrument of Lease No 4652, dated 27 March
1975. It is titled "Lease of Pastoral Holding under Part VI, Division I,
of the Land Act 1962-1974". It is not expressed to be for "pastoral
purposes only". It identifies the former lessees as the new lessees. It is
for a term of thirty years from I January 1974 at a yearly rent. It is
expressed to be subject to statutory and other reservations similar to
those contained in the earlier lease. It is granted upon condition that
within five years from the commencement of the lease the lessees
(407) Section 4(1) of the Land Act 1962 (Q) repealed the 1910 Act. Section 4(2)
provided that leases granted under the earlier legislation "shall be deemed to have
been granted"' under the new Act.
(408) A reference to the Land Acts.
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carry out a number of improvements by way of buildings, an airstrip,
internal fencing, dams, a set of main yards and dip; sow 100 acres at
least as a seed production area; and "Enclose the holding with a good
and substantial fence". The lessees are further required "during the
whole term of the lease [to] maintain all improvements".
In his judgment Drummond J said (409):
"The question (410) focuses solely on the current lease and ignores
the earlier lease because the current lease is no doubt considered to
be typical of a number of leases granted over lands in the area of the
applicants' claim not previously leased."
His Honour concluded (411):
"This lease is subject to substantially less onerous restrictions than
was the 1904 lease considered in the North Ganalanja case ...
There is no ground for holding that this lease is so different in any
material respect from the 1904 lease that it should not be held ... to
confer on the lessee the right to exclusive possession of the area of
the lease. It follows that, upon the grant of this lease, any native title
rights the applicants held in respect of those lands were
extinguished, unless the lease contained a reservation sufficient to
preserve those rights to the applicants."
Nevertheless, reference is made in these reasons from time to time to
the earlier lease.
The Mitchellton Pastoral Holding Leases
These leases were granted over lands within the area of claim by the
Thayorre People.
The story of this leasehold begins with Instrument of Lease
No 2464, dated 25 May 1915. It is titled "Lease of Pastoral Holding
under Part III, Division I of 'The Land Act of 1910'''. The lessees
were Alfred Joseph Smith, Thomas Alexander Simpson and Marshall
Hanley Woodhouse. It is expressed to be for "pastoral purposes
only". The term of the lease is thirty years from 1 April 1915 at a
yearly rent. The area leased is 535 square miles. The lease has
reservations which are similar to, though not identical with, the
reservations in the Holroyd lease. There is no reservation of
petroleum; the Petroleum Act had not then been enacted.
The lessees never took possession of the holding. On 20 July 1918
the lease was forfeited, "the lessees having failed to pay the annual
rent due". Shortly thereafter the Mitchellton area was declared open
for pastoral lease.
Instrument of Lease No 2464, dated 14 February 1919, was also
(410) A reference to Question lB.
granted under Pt III Div I of the Land Act 1910 (Q). It was of the same
land as the 1915 lease. The lessee was Walter Sydney Hood. The lease
is expressed to be for "pastoral purposes only". It was for a term of
thirty years from I January 1919. The lease was subject to reservations
under the Mining on Private Land Act 1909 (Q) and the Petroleum Act
1915 (Q). Like the previous lease, it concluded with a reservation,
concerning the right of entry by authorised persons, in the general
terms noted in the Holroyd lease.
On 9 September 1919 Mr Hood transferred his interest as lessee to
the Byrimine Pastoral Properties Ltd. On 12 October 1921 the
company surrendered the lease pursuant to s 122 of the Land Act 1910.
On 8 July 1921 the Chief Protector of Aboriginals had written to the
Under Secretary, Home Secretary's Department, Brisbane, noting that
the Chief Protector's Office had not been consulted at the time of the
lease in 1919 and that "there are about 300 natives roaming on this
country, and when the company starts operations the natives will
doubtless be hunted off". The Chief Protector noted that there was a
suggestion that the lease might be allowed to lapse. In that event, he
said, "I would strongly urge that, before allowing anyone else to
obtain possession, this Department be first consulted as regards the
need for reserving the area for native purposes". On 12 January 1922,
an Order in Council reserved the land, the subject of the former leases,
for the use of Aboriginal inhabitants of Queensland. The reservation of
the land did not extinguish any native title rights then in exist-
ence (412).
Speaking of the Mitchellton leases, Drummond J said (413):
"The lease considered in the North Ganalanja case, and those
granted under the Land Act 1910 confer substantially the same
rights on the lessee and subject him to substantially the same
restrictions: the 1904 lease was subject to a more restrictive
limitation than the Mitchellton Pastoral Leases in that it was subject
to a condition reserving to the Crown unrestricted right to resume
land for reserves without compensation (save for improvements)."
His Honour then went on to say (as he had said in the case of the
Holroyd lease) that each of the leases issued under the 1910 legislation
was subject to a less burdensome range of limitations and restrictions
than the lease considered in North Ganalanja. He concluded (414):
"It therefore follows that each of these leases should be held to
confer the right to the exclusive possession of the leased area on the
lessees. The grant of the first of the Mitchellton Pastoral Leases
must therefore be taken to have extinguished any native title rights
(412) Maho [No 2J (1992) 175 CLR 1 at 66-67.
(413) Wik Peoples v Queemland (1996) 63 FCR 450 at 489.
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the Thayorre People may previously have enjoyed with respect to
the leased lands."
WIK
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v
QUEENSLAND At the heart of the argument in the present case - that the grant of
each pastoral lease extinguished native title rights - is the proposition
Toohey J that such a grant conferred exclusive possession of the land on the
grantee, and that entitlement to exclusive possession is inconsistent
with the continuance of native title rights.
Expressed with that generality, the proposition tends to conceal the
nuances that are involved. The first step is to consider whether the
relevant grants did in truth confer possession of the land on the
grantees to the exclusion of all others including the holders of native
title rights. That question is not answered by reference only to general
concepts of what is involved in a grant of leasehold. The language of
the statute authorising the grant and the terms of the grant are all-
important. The second step is to determine whether, if such a grant did
confer exclusive possession, native title rights were necessarily
extinguished. This second step has within it two elements. The first
looks at inconsistency, that is, whether and to what extent native title
rights are inconsistent with the exclusive possession which the grant of
a pastoral lease is said to carry. The second asks whether native title
rights are thereby truly extinguished or whether they are simply
unenforceable while exclusive possession vests in the holder of the
pastoral lease. Because of the answers I propose to the questions
asked, this second element does not arise for consideration.
The grant of the pastoral leases with which these appeals are
concerned did not take place in an historical vacuum. It reflected the
history of land grants in Queensland. That history cannot be
understood without some reference to what had taken place in New
South Wales of which Queensland earlier formed part.
Pastoral leases: an historical survey (415)
When the Australian colonies were first established there was no
doubt as to the power of the Crown with respect to the disposition of
waste lands. The Royal Prerogative was initially the source of grants
(415) In this discussion I am indebted to Dr Fry's writings. His major work in this
respect is Freehold and Leasehold Tenancies at Queensland Land. There is a
more summary account in "Land Tenures in Australian Law" in Res Judicatae,
vol 3, (1947) 158. I am also indebted to the monograph by Professor Reynolds
and Mr Dalziel, Aborigines, Pastoral Leases and Promises By The Crown -
Imperial and Colonial Policy 1826-1855, now published as "Aborigines and
Pastoral Leases - Imperial and Colonial Policy 1826-1855", UNSW Law
Journal, vol 19 (1996), 315.
of land in Australia (416). The situation was explained by Windeyer J
in Randwick Corporation v Rutledge (417) in these terms:
"The early Governors had express powers under their commissions
to make grants of land ... The colonial Act, 6 Wm IV No 16
(1836), recited ... that the Governors ... had authority 'to grant and
dispose of the waste lands' ... And when in 1847 a bold argument,
which then had a political flavour, challenged the right of the
Crown, that was to say of the Home Government, to dispose of land
in the colony, it was as a legal proposition firmly and finally
disposed of by Sir Alfred Stephen CJ: Attorney-General v Brown."
Attorney-General (NSW) v Brown (418) was not followed in Mabo
[No 2J but its historical role remains.
The need for statutory regulation was brought about by movements
in New South Wales in the late 1820s to occupy large areas of land to
depasture stock. The "squatters" moved on to land to which they had
no title. The land was unsurveyed, their activities were uncontrolled.
And of course they had no security. The colonial authorities met the
movement of squatters with a system of occupation licences. The
Crown Lands Unauthorised Occupation Act 1839 (NSW) (s 25)
established a Border Police force "for the mutual protection and
security of all persons lawfully occupying or being upon Crown Lands
beyond the limits allotted for location". The Act made it unlawful to
occupy Crown lands beyond the limits of location without a valid lease
or license; it imposed a penalty for unauthorised occupation. The
protective reference to persons "being upon Crown Lands" was
clearly wide enough to include Aborigines.
It was in 1842 that the management and disposal of Crown land was
first brought under statutory control with the enactment of the Sale of
Waste Lands Act 1842 (Imp) (419). "The year 1846 saw the first step
taken along a road which led to the subsequent invention of a
multitude of Australian tenures of new types." (420) In that year the
Sale of Waste Lands Act Amendment Act 1846 (Imp) (421) authorised
the making of Orders in Council. An Order in Council was issued in
1847 in respect of New South Wales. This made it lawful for the
Governor to grant leases of land in unsettled districts for any term not
exceeding fourteen years for pastoral p u r p o s ~ s . Dr Fry has described
this Order in Council as having a two-fold significance in the New
South Wales of the day.
(416) See Campbell, "Crown Land Grants: Form and Validity", Australian Law
Journal, vol 40 (1966) 35.
(417) (1959) 102 CLR 54 at7l.
(418) (1847) 2 SCR (NSW) App 30; 1 Legge Rep 312.
(419) 5 & 6 Viet c 36.
(420) Fry, "Land Tenures in Australian Law", Res Judicarae, vol 3 (1947) 158, at
p 160.
(421) 9 & 10 Viet c 104.
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"It brought to an end the policy of concentration of settlement,
which was to have been achieved by the Crown refusing to alienate
the fee simple of, or to lease, any land outside 'the nineteen
counties' around Sydney or outside small areas around Hobart,
Melbourne and Brisbane. It also introduced a system of Crown
leasehold tenures which led to the whole of Australia being
transformed in subsequent decades into a patchwork quilt of
freeholdings, Crown leaseholdings, and Crown 'reserves'." (422)
Less than a decade later the English authorities, through the New South
Wales Constitution Act 1855 (Imp), surrendered their control over
Crown lands. Thereafter, the entire management and disposal of
Crown lands was vested in the New South Wales legislature.
It is against this background that one goes to the situation in what
later became the State of Queensland. By Proclamation dated
10 February 1842 (423) the District of Moreton Bay ceased to be a
penal settlement. Pursuant to the provisions of the Crown Lands
Unauthorised Occupation Acts 1839-1841 (NSW), a Commissioner of
Crown Lands was appointed for the Moreton Bay District. Other
Districts were proclaimed as settlement expanded in the move to open
up new land for pastoral purposes.
In June 1859 Queensland became a separate colony. The laws of
New South Wales, including laws regulating the "sale, letting,
disposal and occupation" of waste lands, remained in force until
repealed or varied by the legislature of the new colony. By Order in
Council of 6 June 1859 the Queensland legislature was empowered to
make laws with respect to waste lands. By s 30 of the Constitution Act
1867 (Q), "it shall be lawful for the Legislature of this colony to make
laws for regulating the sale letting disposal and occupation of the
waste lands of the Crown within the said colony". Section 40 vested
the "entire management and control of the waste lands belonging to
the Crown in the said Colony of Queensland ... in the Legislature of
the said colony". The local legislature adopted the form of pastoral
lease tenure which had evolved in New South Wales. Many statutes
were passed between 1860 and 1962 which provided for or affected
pastoral leases. It is unnecessary to detail them; it suffices to say they
reflected a regime designed to meet a situation that was unknown to
England, namely, the occupation of large tracts of land unsuitable for
residential but suitable for pastoral purposes. Not surprisingly the
regime diverged significantly from that which had been inherited from
England. It resulted in "new forms of tenure" (424). Regard must be
had to the extraordinary complexity of tenures in Australia, perhaps
(422) Fry. "Land Tenures in Australian Law". Res Judicatae, vol 3 (1947) 158, at
pp 160-161.
(423) Published in the New South Wales Government Gazette, 15 February 1842, p 267.
(424) STewart v Williams (1914) 18 CLR 381 at 390.
187 CLR 1] OF AUSTRALIA III
most of all in Queensland. This can be seen most readily in the
writings of Dr Fry.
While Australia inherited the English law of tenure, it must be
remembered that the system of tenures had by then undergone much
change. In 1788 socage and copyhold were the only lay tenures
recognised by English law and frankalmogn was the only spiritual
tenure. Frankalmogn was then obsolescent; it was never specified in
any Australian grant. No land has been held here on copyhold tenure.
Socage is the only form of tenure that, for practical if not theoretical
purposes, has existed in this country.
As early as 1905 the authors of what became the standard real
property text for New South Wales had written (425):
"The law of real property now in force here, and the law on the
same subject in force in England, present more numerous and more
striking differences and divergences than are found in any other
branch of equal importance ... The English law of real property ...
has ... received a strong impress of feudalism ... It was therefore
natural that this medieval growth, when transplanted to new and
uncongenial soil, should soon begin to wither in its weakest
branches - that is to say, in the principles which derived the least
support from public utility and convenience, and presented the most
striking departures from modern notions of reason and justice."
What is important about this history of legislation, both in New
South Wales and Queensland, is that it is essentially the story of the
relationship between the Crown and those who wished to take up land
for pastoral purposes. It reflects the desire of pastoralists for some
form of security of title and the clear intention of the Crown that the
pastoralists should not acquire the freehold of large areas of land, the
future use of which could not be readily foreseen.
Writing in 1947, Dr Fry commented (426):
"A century of subsequent legislation by the various legislatures of
Australia has developed a new system of land tenures in the various
Australian States and Territories, so that it is now possible to say,
with a very high degree of accuracy, that the constitutional
supremacy of Australian Parliaments and the Crown over all
Australian lands, as much as the feudal doctrines of the Common
Law, is the origin of most of the incidents attached to Australian
land tenures."
Of course Dr Fry was not writing with the principles enunciated in
(425) Millard and Millard, The Law of Real Property in New South Wales (1905).
quoted in Edgeworth, "Tenure, Allodialism and Indigenous Rights at Common
Law: English, United States and Australian Land Law Compared after Maho v
Queensland", AnKlo-American Law Review, vol 23 (1994) 397 at 397.
(426) Res ludicatae, vol3 (1947) 158, at p 159.
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Mabo [No 2] in mind. His starting point was clear: "Rights in respect
of any land in Australia must therefore be derived either directly or
indirectly from the Crown, or not at all." (427) Mabo [No 2] has
shown his starting point to be too narrow. What is important for
present purposes is Dr Fry's focus on legislation rather than feudal
doctrine in order to identify the incidents of tenure. This reinforces the
need to look at the relevant statutory provisions, rather than simply
apply feudal notions of tenure without considering their place in the
statutory scheme. Thus in R v Toohey; Ex parte Meneling Station Pry
Ltd, where the question was whether a grazing licence under the
Crown Lands Act 1931 (NT) conferred an "estate or interest" in the
land within the meaning of the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth), Mason J said (428):
"The grazing licence is the creature of statute forming part of a
special statutory regime governing Crown land. It has to be
characterised in the light of the relevant statutory provisions without
attaching too much significance to similarities which it may have
with the creation of particular interests by the common law owner of
land."
These comments apply with particular force to Queensland where,
at least at the time Dr Fry was writing, there were approximately
seventy different kinds of Crown leasehold and Crown perpetual
leasehold tenures. To approach the matter by reference to legislation is
not to turn one's back on centuries of history nor is it to impugn basic
principles of property law. Rather, it is to recognise historical
development, the changes in law over centuries and the need for
property law to accommodate the very different situation in this
country.
Pastoral leases lie in the grant of the Crown. They are the creature
of statute and the rights and obligations that accompany them derive
from statute. In light of this, it is pertinent to turn to the legislation
pursuant to which the leases the subject of these appeals were granted.
The Land Act 1910
The grants in question were of course of Crown land. The first
Holroyd lease and both Mitchellton leases were granted pursuant to
and subject to the conditions and provisos of Pt III, Div I of the Land
Act 1910 (Q).
The 1910 Act is described in its long title as
"An Act to Consolidate and Amend the Law relating to the
Occupation, Leasing, and Alienation of Crown Land."
Section 6(1) empowers the Governor in Council, in the name of His
(427) Res Judicatae. vol3 (1947) 158, at p 158.
(428) Meneling Station (1982) 158 CLR 327 at 344.
Majesty, to "grant in fee-simple, or demise for a term of years, any
Crown land within Queensland". "Crown Land" is defined (429) as
being -
(a) Lawfully granted or contracted to be granted in fee-simple
by the Crown; or
(b) Reserved for or dedicated to public purposes; or
(c) Subject to any lease or license lawfully granted by the
Crown: Provided that land held under an occupation license
shall be deemed to be Crown land".
Pan III of the Act deals with Pastoral Tenures. The term pastoral
tenures is wider than pastoral leases since it includes occupation
licenses granted under Pt III (430). Division I of Pt III prescribes the
machinery whereby Crown land may be declared open for pastoral
lease for a term not exceeding thirty years and competing applications
dealt with. When the term of any lease exceeds ten years, the term is
to be divided into periods, the last period to be of such duration as to
permit the other period or periods to be of ten years duration (s 42).
Division I contains other provisions relating to the computation of
rent. Subject to what is said in the general provisions of the Act, little
more appears as to the rights and obligations attaching to pastoral
leases.
Division II of Pt III deals with occupation licenses. Section 45
empowers the Minister to declare Crown land to be open for
occupation under occupation license. A yearly rent is payable. Each
license expires on 31 December of the year in which it is granted but
is renewable from year to year (s 47). While Pt III makes specific
provision for pastoral leases and occupation licenses in respect of term
and rent, other parts of the Act apply equally to both.
There are two other sections of the 1910 Act which should be noted
because of the attention paid to them (or their counterparts in later
legislation) in argument. The first is s 135 which reads:
"If the license or lease of any land is determined by forfeiture or
other cause before the expiration of the period or term for which it
was granted, then, unless in any particular case other provision is
made in that behalf by this Act, the land shall revert to His Majesty
and become Crown land, and may be dealt with under this Act
accordingly.' ,
This section has relevance to the concepts of radical title and reversion
to the Crown which are discussed later in these reasons.
The other provision is s 203 which reads:
(429) s 4. The definition of "Crown land" in s 5 of the 1962 Act is the same.
(430) In the interests of consistency I have used the spelling "license" for the noun in
contexts where the Queensland statute uses that spelling.
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"Any person, not lawfully claiming under a subsisting lease or
license or otherwise under any Act relating to the occupation of
Crown land, who is found occupying any Crown land or any
reserve, or is found residing or erecting any hut or building or
depasturing stock thereon, or clearing, digging up, enclosing, or
cultivating any part thereof, shall be liable to a penalty not
exceeding twenty pounds."
This provision was relied upon by the respondents as evidencing the
exclusive possession of a pastoral lessee. I shall return to s 203 when
dealing with that question.
As already noted, the leases granted under the 1910 Act (431) were
expressed to be for "pastoral purposes only". "Pastoral purposes" is
not defined in the Act nor are the grants of lease specific as to what
the expression entails. Clearly it includes the raising of livestock. It
also includes things incidental thereto such as establishing fences,
yards, bores, mills and accommodation for those engaged in relevant
activities. But the use to which the land may be put is circumscribed
by the expression "pastoral purposes only"; the rights of the lessee
are to be determined accordingly.
The Land Act 1962
The second Holroyd lease, the one on which Drummond J focused,
was granted in pursuance of Pt VI, Div I of the Land Act 1962-
1974 (Q).
The 1962 Act is described in its long title as
"An Act to Consolidate and Amend the Law relating to the
Alienation, Leasing and Occupation of Crown Land."
With some transposition of words, the long titles of the 1910 and 1962
Acts are the same. The definition of "Crown land" in the 1962 Act is
the same as that in the 1910 Act. The power to make grants and leases
is virtually the same. In the 1962 Act s 6( I) empowers the Governor in
Council, in the name of Her Majesty, to "grant in fee-simple, or
demise for a term of years or in perpetuity, or deal otherwise with any
Crown land within Queensland".
Part III of the 1962 Act deals with Pastoral Tenures which it
identifies as pastoral leases, stud holdings (not found in the 1910 Act)
and occupation licenses. Occupation licenses are dealt with similarly
in both Acts. Part III, Div I of the 1962 Act prescribes the machinery
whereby Crown land may be declared open for pastoral lease.
Section 49(1) identifies
"the following classes of tenure, namely:
(a) pastoral holding; or
(b) pastoral development holding; or
(431) That is, the first Holroyd lease and both Mitchellton leases.
(c) preferential pastoral holding".
These classes of pastoral lease are not defined. But s 49(1) provides
that land may be declared open for pastoral lease under pastoral
development holding "only where the cost of developing the land will
be abnormally high, and where developmental conditions are imposed
calculated to improve the carrying capacity and productivity of the
land and to develop the public estate". A preferential pastoral holding
carries an obligation of personal residence if the notification so
provided (s 62(1 .
Mention is made earlier in these reasons of the improvements and
development specified in the second Holroyd lease which is a pastoral
holding. While the lease is not expressed to be for pastoral purposes
only, no other activity is authorised. The term of such a pastoral lease
is to be determined by the Minister and may not exceed thirty years
(s 53(1 .
By force of s 4(2), all leases granted under repealed Acts and
subsisting at the commencement of the 1962 Act "shall be deemed to
have been granted or issued under the provisions of this Act relating to
the tenure or class or mode of a class of tenure hereunder which is
analogous thereto".
Before leaving this survey of the 1962 Act, two provisions should
be mentioned. In dealing with the 1910 Act mention was made of
s 135 which provided that on the determination of a lease before the
expiration of the term, the land reverted to His Majesty and became
Crown land. That provision has its counterpart in s 299( 1) of the 1962
Act with, however, an additional requirement that the person in
occupation give peaceful possession to the Land Commissioner,
"otherwise such person shall be a trespasser upon Crown land"
(s 299(2.
The other provision was s 203 of the 1910 Act relating to persons
on Crown land, "not lawfully claiming under a subsisting lease or
license or otherwise under any Act relating to the occupation of Crown
land". It has its counterpart in s 372 of the 1962 Act.
Leases: exclusive possession
The 1910 Act and the 1962 Act say little as to the rights conferred
by a pastoral lease. What of the lease itself? In each of the leases with
which this appeal is concerned, the Crown "Do HEREBY ... DEMISE
AND LEASE" the land in question.
At the forefront of the respondents' case was the argument that an
essential feature of a lease is that it confers exclusive possession on the
lessee. In their submission, it followed that the instruments, being
pastoral leases, conferred on the lessees exclusive possession of the
land. To pose the issue in that way is to focus unduly on leasehold
interests as known to the common law and to give insufficient
recognition to the fact that the pastoral lease is a creature of statute.
Accordingly, the rights it confers and the obligations it imposes must
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be detennined by reference to the applicable statutory provisions. That
is not to say that reference to leasehold interests at common law does
not aid an understanding of these rights and obligations. But it must
not be allowed to obscure the particular nature of a pastoral lease
under the relevant legislation. And it must not divert attention from the
basic question whether the grant of a pastoral lease was so inconsistent
with the existence of native title rights that those rights must be
regarded as having been extinguished. With those observations in
mind, I turn to a consideration of leasehold interests.
The headnote to Radaich v Smith (432) reads:
"In detennining whether an instrument creates a lease as opposed
to a licence, the decisive factor in favour of a lease is whether the
right which the instrument confers is one to the exclusive possession
of the premises for a tenn."
Put that way, the point is not so much that a "lease" confers exclusive
possession; it is that the conferring of exclusive possession is an
indication that the arrangement in question is a lease rather than, say, a
licence (433).
Radaich v Smith and many other cases in which the character of a
lease has been considered were decided in the context of commercial
transactions, often entered into against the background of legislation
that controlled rents and evictions. The factual background had
generally been a written contract, described as a licence in order to
avoid the operation of legislation. It is in this context that the
following passage from the judgment of Windeyer J must be
considered (434):
"What then is the fundamental right which a tenant has that
distinguishes his position from that of a licensee? It is an interest in
land as distinct from a personal pennission to enter the land and use
it for some stipulated purpose or purposes. And how is it to be
ascertained whether such an interest in land has been given? By
seeing whether the grantee was given a legal right of exclusive
possession of the land for a tenn or from year to year or for a life or
lives. "
The particular context in which emphasis has been placed on
exclusive possession is further illustrated by Street v Mountford, where
the question was whether an agreement gave rise to a tenancy
protected under the Rent Acts (UK). Lord Templeman, with whom the
other Law Lords agreed, "gratefully adopt[ed] the logic and the
language of Windeyer 1" (435) for the purposes of detennining
(432) (1959) 101 CLR 209.
(433) See Lewis v Bell (1985) I NSWLR 731.
(434) Radaich v Smith (1959) 101 CLR 209 at 222.
(435) Street v Mountford [1985) AC 809 at 827.
whether as a result of an agreement relating to residential accommo-
dation the occupier was a lodger or a tenant. Neither Windeyer J nor
Lord Templeman was speaking in a context which throws light on the
position of a "lessee" whose rights depend on statute. It is a mistake
to apply what is said in these passages to the present appeals unless it
accords with the relevant statute and has regard to the presence on the
land of the indigenous people.
The inconclusiveness for the present context of descriptive terms
such as lease and licence is illustrated by O'Keefe v Malone which
concerned licences granted under the Crown Lands Act 1889 (NSW).
Lord Davey, delivering the advice of the Privy Council, spoke of the
need to examine the rights actually conferred on the grantee and
said (436):
"An exclusive and transferable licence to occupy land for a defined
period is not distinguishable from a demise, and in the legislative
language of the Land Acts the words 'leased,' 'lease,' and 'lessee,'
are frequently used as words of a generic import, including lands
held under occupation licence, or the licence or the holder thereof."
The point is that the rights and obligations of a person holding an
interest under the legislation involved in the present appeals are not
disposed of by nomenclature. A closer examination is required. The
looseness of terminology in this area is further illustrated by the term
"mining lease" which, as used in the Mining Act 1906 (NSW), was
described by Windeyer J in Wade v New South Wales Rutile Mining
Co Pty Ltd (437) as "really 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" (438).
Likewise, the question has arisen whether an arrangement described
as a lease may fall short of the grant of a right of exclusive possession.
It arose in Goldsworthy Mining Ltd v Federal Commissioner of
Taxation (439) with respect to a dredging lease of an area of sea-bed
issued under the Land Act 1933 (WA). The respondent in that case
argued that reservations in favour of the Crown and others by way of
access for navigation, and the reservation of all minerals and
petroleum showed that there was no right of exclusive possession in
the appellant. Mason J rejected the argument, holding in effect that the
reservations were explicable by reason of the relationship of the sea-
bed to the navigable channel which it underlay. Indeed, his Honour
thought that the very existence of access reservations assumed a right
of exclusive possession. It is clear that Mason J found such a right in
(436) O'Keefe v Malone [1903] AC 365 at 377.
(437) (1969) 121 CLR 177 at 192.
(438) See also Gowan v Christie (1873) LR 2 Sc & Div 273 at 284; In re Aldam's
Settled Estate [1902] 2 Ch 46 at 56.
(439) (1973) 128 CLR 199.
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the tenns of the overall arrangement, not simply in the use of the
expression "demises and leases". A similar approach may be found in
Glenwood Lumber Co Ltd v Phillips (440) where the Privy Council
said:
"If the effect of the instrument is to give the holder an exclusive
right of occupation of the land, though subject to certain
reservations or to a restriction of the purposes for which it may be
used, it is in law a demise of the land itself."
The instrument in question was a licence of land for the purpose of
cutting timber, granted pursuant to a Newfoundland statute.
Certainly, the authorities point to exclusive possession as a nonnal
incident of a lease. They do not exclude, however, an inquiry whether
exclusive possession is in truth an incident of every arrangement
which bears the title of lease. Furthennore, those authorities, which are
directed to commercial transactions between individual persons or
corporations, are not concerned whether something that is underpinned
by common law recognition, namely, native title rights, are excluded
by the grant by the Crown of what is described as a pastoral lease over
land to which those rights attach.
There is a passage in the judgment of Brennan J in American Dairy
Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (441) which may seem to tell
against some of the considerations just mentioned. His Honour said of
a lease by a trustee of land reserved under the Land Act 1962
-1981 (Q):
. 'By adopting the tenninology of leasehold interests, the Parliament
must be taken to have intended that the interests of a lessee,
transferee, mortgagee or sublessee are those of a lessee, transferee,
mortgagee or sublessee at common law, modified by the relevant
provisions of the Act."
These remarks were made in a particular context, namely, whether a
sublessee of the land could assign its interest at common law. The
further sublease proposed was an entirely commercial transaction. It
did not involve the title of the Crown. There is no comparison with the
situation in the present appeals. Furthennore, examination of how
pastoral leases came about in Queensland and the more bi'.sic question
of tenures under Queensland law shows that his Honour's observation
cannot be transposed so as to throw light on the position of native title
rights. The same may be said of the observation of Mason J in the
same case (442) that the rule that courts will construe a statute in
accordance with common law principles "applies to the principles of
(440) [1904] AC 405 at 408.
(441) (1981) 147 CLR 677 at 686.
(442) American Dairy Queen (1981) 147 CLR 677 at 682-683.
the common law governing the creation and disposition of rights of
property" .
Pastoral leases: exclusive possession?
It is not surprising that the terminology of pastoral leases was
employed by the legislature. And it is important to bear in mind that
although the second Holroyd lease was granted in 1975 (the
Mitchellton leases in 1915 and 1919), the regime under which all the
leases were granted was established before the turn of the century and
was itself part of the historical development of the colony. The regime
is best understood by seeing what had preceded it, as outlined earlier
in these reasons.
It is apparent from a despatch from Sir George Gipps, transmitting
the Crown Lands Unauthorised Occupation Act to the Secretary of
State that one of its aims was "for the purpose of putting a stop to the
atrocities which have been committed both on them [the natives] and
by them" (443). Furthermore, under the Regulations made pursuant to
that Act a licence could be cancelled if the licensee was convicted "of
any malicious injury committed upon or against any aboriginal native
or other persons". The whole tenor of these provisions indicates a
contemplation that Aborigines would be upon licensed lands.
The thrust of contemporary documents, in particular communi-
cations by the Secretary of State, Earl Grey, to the Governor of New
South Wales make it clear that Aborigines were not to be excluded
from land under pastoral occupation (444). In the first of these two
despatches, Earl Grey wrote of pastoral occupation:
"I think it essential that it should be generally understood that
leases granted for this purpose give the grantees only an exclusive
right of pasturage for their cattle, and of cultivating such Land as
they may require within the large limits thus assigned to them, but
that these Leases are not intended to deprive the Natives of their
former right to hunt over these Districts, or to wander over them in
search of subsistence, in the manner to which they have been
heretofore accustomed, from the spontaneous produce of the soil
except over land actually cultivated [or] fenced in for that purpose."
In the second, Earl Grey repeated hj.s earlier view that the intention
was "to give only the exclusive right of pasturage in the runs, not the
exclusive occupation of the Land, as against Natives using it for the
ordinary purposes".
The Queensland legislation aimed at giving pastoralists some
security of tenure in regard to their pastoral activities. The authorities
in England expressed almost constant concern that the grant of pastoral
(443) Despatch No 65, Sir George Gipps to Lord Glenelg, 6 April 1839, CO 201/285.
(444) Despatch No 24 Earl Grey to the Governor Sir Charles FitzRoy, II February
1848; Despatch No 134 Earl Grey to Sir Charles FitzRoy, 6 August 1849.
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leases should not be used to prevent Aborigines from using the land
for subsistence purposes. And a similar concern was expressed within
Australia. Thus in his 1900 Annual Report the Northern Protector of
Aboriginals, Walter Roth, warned against the dispossession of blacks
from their hunting-grounds and sources of water supply "by their
lands being rented for grazing rights at a nominal figure". He added:
"Carrying the present practice (might against right) to a logical
conclusion, it would simply mean that, were all the land in the north
to be thus leased, all the blacks would be hunted into the
sea." (445)
The Protector repeated his forebodings in his report of 1903 (446).
Against this background, it is unlikely that the intention of the
legislature in authorising the grant of pastoral leases was to confer
possession on the lessees to the exclusion of Aboriginal people even
for their traditional rights of hunting and gathering. Nevertheless,
"intention" in this context is not a reference to the state of mind of
the Crown or of the Crown's officers who, for instance, made a grant
of land. What is to be ascertained is the operation of the statute and the
"intention" to be discerned from it (447).
Some reference should be made to the authorities upon which the
respondents relied. In Macdonald v Tully the Full Court of the
Supreme Court of Queensland said of a plaintiff who had paid rent to
the Crown and occupied and stocked Crown lands under the Tenders
for Crown Lands Act 1860 (Q) (24 Vic No 12), though no forrnallease
had been granted to him (448):
"This right of the plaintiff to occupy was, in our opinion, capable of
being maintained against any disturber, whether assuming to disturb
in virtue of an alleged lease or otherwise."
But, despite the generality of the statement, it is clear that the Court
was directing its attention to the position of third parties in the
conventional sense, not to Aborigines whose traditional land might fall
within the lease. The same may be said of the observation of the Full
Court in Wildash v Brosnan (449) that a pastoral lessee had an
"exclusive right to the land".
Reference was made earlier in these reasons to s 203 of the 1910
Act and its counterpart, s 372 of the 1962 Act. The respondents
contended that the effect of the provision was to render a trespasser
(445) Annual Repon of the Nonhero Protector of Aboriginals for 1900, Queensland,
Votes and Proceedings, 1901, vol 4, pp 1329-1337.
(446) Annual Repon of the Nonhero Protector of Aboriginals for 1903, Queensland
Parliamentary Papers, 1904. pp 847-873.
(447) Western Australia v The Commonwealth (the Native Title Act Case) (1995) 183
CLR 373 at 421-423.
(448) Macdonald v Tully [1870)2 QSCR 99 at 106.
(449) [1870)1 QCLLR 17 at 18.
any person occupying Crown land who was "not lawfully claiming
under a subsisting lease or license". This was said to include
Aborigines. The answer to this contention was given by Brennan J in
Mabo [No 2J when dealing with s 91 of the Crown Lands Alienation
Act 1876 (Q), the predecessor of this provision. His Honour said (450):
"To construe s 91 or similar provisions as applying to the Meriam
people in occupation of the Murray Islands would be truly
barbarian. Such provisions should be construed as being directed to
those who were or are in occupation under colour of a Crown grant
or without any colour of right; they are not directed to indigenous
inhabitants who were or are in occupation of land by right of their
unextinguished native title."
In the course of argument reference was made to the decision of this
Court in Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd (451)
as pointing to exclusivity of possession on the part of a holder of a
pastoral lease. But this was a case in which one pastoral company,
relying on certain statutory provisions, claimed the right to take
travelling stock across the land comprised in a pastoral lease held by
another pastoral company. The judgments turned on the language of
the statutory provisions. There was however a strong dissent from
Isaacs J who thought it astonishing to hear it argued (452)
"that - while in the very act of liberalising the conditions of
pastoral settlement in the more distant parts of the State on virgin
land ... the Legislature of South Australia had deliberately adopted
the suicidal and inconsistent policy of making the passage of healthy
travelling stock, not only always more difficult than it already was,
but in a vast number of cases impossible".
His Honour's judgment is lengthy, involving a detailed consideration
of the history of pastoral leases in South Australia. It is apparent that
his view of the statutory provisions was influenced by that history
which he regarded (453) as establishing that "the right of owners of
travelling stock to pass - a right more or less regulated, but basically
a right - over Crown lands, including lands let by the Crown for
pasturage, is part of the constant and traditional policy and law of
South Australia".
While the appellants may find some support for their argument in
the dissenting judgment of Isaacs J, the decision itself turns on
statutory language. Certainly, the decision offers no support for the
proposition that exclusivity of possession is a necessary ingredient of a
pastoral lease.
(450) Mabo [No 2J (1992) 175 CLR 1 at 66.
(451) (1925) 36 CLR 340.
(452) Yandama Pastoral Co (1925) 36 CLR 340 at 349-350.
(453) Yandama Pastoral Co (1925) 36 CLR 340 at 353.
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A pastoral lease under the relevant legislation granted to the lessee
possession of the land for pastoral purposes. And the grant necessarily
gave to the lessee such possession as was required for the occupation
of the land for those purposes. As has been seen, each lease contained
a number of reservations of rights of entry, both specific and general.
The lessee's right to possession must yield to those reservations. There
is nothing in the statute which authorised the lease, or in the lease
itself, which conferred on the grantee rights to exclusive possession, in
particular possession exclusive of all rights and interests of the
indigenous inhabitants whose occupation derived from their traditional
title. In so far as those rights and interests involved going on to or
remaining on the land, it cannot be said that the lease conferred on the
grantee rights to exclusive possession. That is not to say the legislature
gave conscious recognition to native title in the sense reflected in
Mabo [No 2]. It is simply that there is nothing in the statute or grant
that should be taken as a total exclusion of the indigenous people from
the land, thereby necessarily treating their presence as that of
trespassers or at best licensees whose licence could be revoked at any
time.
It follows that Question IB(b) and Question Ic(b), which ask
whether the pastoral leases "confer rights to exclusive possession on
the lessee", must be answered "No". As the questions are framed, the
question of extinguishment strictly does not then arise. But for these
reasons to be meaningful, one must go on and consider to what extent
the grant of a pastoral lease under the 1910 Act or 1962 Act
necessarily extinguished native title rights.
That a concept of feudal tenure brought to Australia but subjected to
change through a complex system of rights and obligations adapted to
the physical, social and economic conditions of the new colony, in
particular the disposition of large areas of land (often unsurveyed) for
a limited term for a limited purpose, should determine the fate of the
indigenous people is a conclusion not lightly to be reached. The
continuance of native title rights of some sort is consistent with the
disposition of land through the pastoral leases. I say "of some sort"
because there has been no finding by the Federal Court whether such
rights existed in respect of the leased land and, if they did, the nature
of those rights. That is a matter to which I shall return.
Extinguishment
The idea of extinguishing title to land raises a number of questions,
particularly when the title said to have been extinguished does not
derive from the common law but has been recognised by the common
law. When land is acquired by the Crown for the purposes of public
works, the title of the registered proprietor is in truth extinguished by
force of the notice of acquisition or resumption. The title vests in the
Crown by force of statute though registration may be required under
the Torrens system. But that is hardly the situation here when what is
contended is that the grant of a pastoral lease of itself effected an
extinguishment of native title rights.
In Mabo [No 2J (454) Brennan J said:
"Sovereignty carries the power to create and to extinguish private
rights and interests in land within the Sovereign's territory. It
follows that, on a change of sovereignty, rights and interests in land
that may have been indefeasible under the old regime become liable
to extinction by exercise of the new sovereign power."
His Honour cited, in support of the initial proposition, Joint Tribal
Council of Passamaquoddy Tribe v Morton (455). There are other
authorities which assert or assume the power to extinguish traditional
title (456). The general proposition is not questioned by the appellants.
And although fiduciary obligations on the part of the State of
Queensland were asserted by the appellants, it is unnecessary to pursue
this aspect in order to deal with the questions posed by the appeals.
Mason CJ and McHugh J agreed with the reasons for judgment of
Brennan J. Deane and Gaudron II said that, like other legal rights,
"the rights conferred by common law native title and the title itself
can be dealt with, expropriated or extinguished by valid Common-
wealth, State or Territorial legislation" (457).
I said that there is "precedent for the proposition that the Crown has
power to extinguish traditional title" (458). But I raised a number of
questions. Is the power exercisable only with the consent of the
titleholders or is it exercisable unilaterally? I added (459):
"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.' ,
Later in his judgment Brennan J said (460):
"However, the exercise of a power to extinguish native title must
(454) (1992) 175 CLR I at 63.
(455) (1975) 528 F 2d 370 at 376, n 6.
(456) Johnson v McIntosh (1823) 21 US 240 at 259; United States v Sante Fe Pacific
Railroad Co (1941) 314 US 339; St Catherine's Milling & Lumber Co v The
Queen (1888) 14 App Cas 46; Tee-Hit-Ton Indians v United States (1955) 348 US
272 at 279; Hamlet ()f Baker Lake v Minister of Indian Affairs [1980)1 FC 518 at
566-567; (1979) 107 DLR (3d) 513 at 549. In Mabo v Queensland (1988) 166
CLR 186 at 195, 20 I, 213-214, the power to extinguish by legislation consisting
of "clear and plain" language was assumed.
(457) Mabo [No 2] (1992) 175 CLR I at 110-111.
(458) Mabo [No 2] (1992) 175 CLR I at 193.
(459) Mabo [No 2] (1992) 175 CLR I at 195.
(460) Mabo [No 2] (1992) 175 CLR I atM.
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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 (461).
In Western Australia v The Commonwealth (the Native Title Act
Case (462 the following passage appears:
"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."
It is with the concept of inconsistency that these appeals are much
concerned.
During the hearing of these appeals attention focused on a passage
in the judgment of Brennan J in Mabo [No 2J where his Honour
said (463):
in respect of the same land necessarily extinguishes the native
title. "
In this regard Deane and Gaudron JJ said:
"The personal rights conferred by common law native title ...
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." (464)
In the circumstances of the case, I held that whether the leases in
question were effective to extinguish traditional title was something it
was unnecessary to answer (465).
(461) Mabo [No 2J (1992) 175 CLR 1 at 110-111, per Deane and Gaudron 11; at 136,
per Dawson ); at 193-196, per Toohey), See also Western Australia v The
Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 422: "the
presumption in the case of the Crown is that no extinguishment is intended." See
also R v Van Jer Peet [1996] 2 SCR 507 at 585, 652; (1996) 137 DLR (4th) 289
at 337. 385,
(462) (1995) 183 CLR 373 at 422.
(463) Mabo [No 2J (1992) 175 CLR 1 at68.
(464) Mabo [No 2J (1992) 175 CLR 1 at 110.
(465) See Mabo [No 2J(l992) 175CLR 1 at 197.
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 2J 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. What is meant by
extinguishment is alluded to by Macfarlane JA in Delgamuukw v
British Columbia (466) when he said:
"Before concluding that it was intended that an aboriginal right
be extinguished one must be satisfied that the intended conse-
quences of the colonial legislation were such that the Indian interest
in the land in question, and the interest authorised by the legislation,
could not possibly co-exist."
There is a further passage in the judgment of Macfarlane JA which
strikes a chord in the present appeals:
"It is clear that the mischief at which many of the Colonial
Instruments was directed was the agitation in the colony attendant
upon the influx and presence of miners seeking gold. Governor
Douglas needed authority to stabilise the situation. A plan to attract
permanent settlers, and establish them on the land was urgently
required. The aboriginal peoples were not the problem. The
acquisition of Indian lands was not the design, although attendant
upon settlement was the need to reconcile the conflicting interests of
the aboriginals and of the settlers. But the urgent question was
settlement and the establishment of British authority in the colony.
One should assume that the object was to achieve the desired result
with as little disruption as possible, and without affecting accrued
rights and existing status any more than was necessary." (467)
It is true that what is said in the judgments in Delgamuukw is
against a background of treaty making. Nevertheless the passage in the
(466) (1993) 104 DLR (4th) 470 at 525.
(467) Delgamuukw (1993) 104 DLR (4th) 470 at 529.
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judgment of Macfarlane JA is particularly apposite here. In the course
of his judgment Lambert JA (who was in dissent as to the outcome of
the appeal) distinguished express (or explicit) extinguishment and
implicit extinguishment. As to the latter he said (468):
"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.' ,
What emerges from the judgments in Delgamuukw 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.
While the appellants accepted, as they were bound to do in light of
Mabo [No 2J (469) and the Native Title Act Case (470), 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.
Inconsistency can only be determined, in the present context, by
identifying what native title rights in the system of rights and interests
upon which the appellants rely are asserted in relation to the land
contained in the pastoral leases. This cannot be done by some general
statement; it must "focus specifically on the traditions, customs and
practices of the particular aboriginal group claiming the right" (471).
Those rights are then measured against the rights conferred on the
grantees of the pastoral leases; to the extent of any inconsistency the
latter prevail. It is apparent that at one end of the spectrum native title
rights may "approach the rights flowing from full ownership at
(468) Delgamuukw (1993) 104 DLR (4th) 470 at 668.
(469) (1992) 175 CLR I.
(470) (1995) 183 CLR 373.
(471) R v Van der Peer [1996] 2 SCR 507 at 559; (1996) 137 DLR (4th) 289 at 318, per
Lamer CJ.
common law" (472). On the other hand they may be an entitlement
"to come on to land for ceremonial purposes, all other rights in the
land belonging to another group" (473). Clearly there are activities
authorised, indeed in some cases required, by the grant of a pastoral
lease which are inconsistent with native title rights that answer the
description in the penultimate sentence. They may or may not be
inconsistent with some more limited right.
Thus the questions asked of the Federal Court, which assume the
existence of native title rights but say nothing as to their content,
produce an artificial situation.
Radical title
Because of the course taken by the argument before the Court in the
present appeals, it is necessary to say something about radical title,
though this matter was considered by the Court in Mabo [No 2J (474).
As is clear from the judgments in that case, a consequence of
sovereignty is the attribution of radical title to the Crown. But radical
title does not of itself carry beneficial ownership. Brennan J described
it in these terms (475):
"The radical title is a postulate of the doctrine of tenure and a
concomitant of sovereignty."
In Amodu Tijani v Secretary, Southern Nigeria (476) the Privy
Council, in a judgment delivered by Viscount Haldane, spoke of the
title of the Sovereign as "a pure legal estate, to which beneficial rights
may or may not be attached".
From the distinction thus made, it is apparent that the grant of an
estate in land does not require the Crown to assume beneficial
ownership of the land. Nor does the relevant legislation so dictate. As
Brennan J observed in Mabo [No 2J (477):
"It is only the fallacy of equating sovereignty and beneficial
ownership of land that gives rise to the notion that native title is
extinguished by the acquisition of sovereignty."
Later his Honour said (478):
(472) Mabo [No 2J (1992) 175 CLR I a189.
(473) Mabo [No 2J (1992) 175 CLR I at 190.
(474) See generally, Rogers, "The Emerging Concept of 'Radical Title' in Australia:
Implications for Environmental Management", Environmental and Planning Law
Journal, vol 12 (1995) 183.
(475) Mabo [No 2J (1992) 175 CLR I at 48.
(476) [1921)2 AC 399 at 403.
(477) (1992) 175 CLR I at 51.
(478) Mabo [No 2J (1992) 175 CLR I a168.
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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 (479): "A
reversion is the interest which remains in a grantor who creates out of
his own estate a lesser estate" (emphasis added). In support of the
foregoing statement, the author quotes from Blackstone (480):
"An estate in reversion is the residue of an estate left in the grantor,
to commence in possession after the determination of some
particular estate granted out by him ... For the fee-simple of all
lands must abide somewhere; and if he, who was before possessed
of the whole, carves out of it any smaller estate, and grants it away,
whatever is not so granted remains in him."
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. The matter was explained by Brennan J in Mabo [No 2] (481)
when he said:
"Recognition of the radical title of the Crown is quite consistent
with recognition of native title to land, for the radical title, without
more, is merely a logical postulate required to support the doctrine
of tenure (when the Crown has exercised its sovereign power to
grant an interest in land) and to support the plenary title of the
Crown (when the Crown has exercised its sovereign power to
appropriate to itself ownership of parcels of land within the Crown's
terri tory). "
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 (482). 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
(479) Helmore, The Law of Real Property in New South Wales, 2nd ed, (1966), P 227.
(480) Commentaries, Book 11, Ch II, P 175.
(481) (1992) 175 CLR I at 50.
(482) These appeals are not concerned with the operation of the Racial Discrimination
Act 1975 (Cth).
came to an end, the land answered the description of "Crown land"
and might be dealt with accordingly (483). 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.
While nothing in the judgments of the Court, in particular those in
Mabo [No 2J, point with any certainty to the answers demanded of the
Court in the present proceedings, that decision is a valuable starting
point because it explores the relationship between the common law
and the "law" which evidences native title rights. So far as the scope
of Mabo [No 2J is concerned, it should be noted that in their joint
judgment Mason CJ and McHugh J, with the authority of the other
members of the Court constituting the majority, said (484):
"The formal order to be made by the Court .. . is 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 in ... the
formal order."
This simply reinforces the proposition that while the judgments in
Mabo [No 2J are significant for an understanding of the issues in the
present appeals, they do not determine their outcome.
Non-entry into possession
The lessees of the Mitchellton leases did not go into possession.
Council for the Thayorre People relied upon this point of distinction
with the Holroyd lease to argue that the Mitchellton leases vested in
interest but never in possession.
The argument was in part that if the concept of feudal tenures
(483) See S 135 of the 1910 Act.
(484) Mabo {No 2J (1992) 175 CLR I at 16.
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applied to pastoral leases, the Crown did not acquire a reversion
expectant necessary for the plenum dominium required to extinguish
native title rights. The feudal principle was expressed in Coke on
Littleton in the following manner (485):
"For before entry the lessee hath but interesse termini, an interest of
a terme, and no possession, and therefore a release which enures by
way of enlarging of an estate cannot worke without a possession, for
before possession there is no reversion."
Although the rule has been abolished in all States of Australia,
including Queensland (486), it occasionally rears its head (487).
However the earlier existence of the rule does not advance the
argument of the Thayorre People. Section 6(2) of the Land Act
1910 (Q), under which the Mitchellton leases were granted, declares
the leases to be "valid and effectual to convey to and vest in the
person therein named the land therein described for the estate or
interest therein stated". It follows that execution of the leases in
question was sufficient to vest in the lessees a grant in accordance with
the statute.
Extinguishment revisited
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? The impact of
such a conclusion was addressed by Lee J in North Ganalanja (488)
when he said:
"It may be thought to be a bold proposition that the grant of a
statutory right to take possession of a vast area of leasehold land to
depasture stock, being an area which included land to which an
organised social group of indigenous inhabitants resorted as of right
for usufructuary or cultural purposes, demonstrated a clear and plain
intention by the Crown to extini;uish those rights when the interest
granted to the pastoral tenant by the Crown was subject to various
derogations including the right of the Crown to recover the demised
property by resumption or reservation, and rights of access and
possession vested by the Crown in third parties, the exercise of
which, in most cases, was likely to cause as much disturbance to the
(485) 2 Co Litt 270a.
(486) Properry Law Act 1974 (Q), S 102.
(487) See Butt, "Conveyancing", Australian Law Journal, vol 70 (1996) 524.
(488) (1995) 61 FCR 1 at 23.
pastoral tenant's enjoyment of possession as the use of native title
rights by indigenous inhabitants."
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.
The claims against Queensland, Comalco and Aluminium Pechiney
These claims, mentioned at the outset of these reasons, are the
subject of Questions 4 and 5. They raise discrete issues from the
earlier questions.
I would answer each of those questions "No", for the reasons given
by Kirby J which I gladly adopt.
Answering the questions
As I said early in these reasons, the Court made it clear that it
proposed to deal only with the particular questions asked.
Questions IA and IB are not happily framed, with their emphasis on
whether the grant of each pastoral lease "necessarily" extinguished
"all incidents of Aboriginal title" of the Wik Peoples and the
Thayorre People, an aspect that only arises if in each case the pastoral
lease conferred "rights to exclusive possession on the grantee". The
questions reduce to straightforward propositions what are in truth
complex issues of law and of fact. They look for a certainty in the
answers which, in the circumstances of the present appeals, is a
mirage. There have been no findings as to whether native title rights
even exist in connection with the land, let alone the content of any
such rights. It is apparent from these reasons that I am of the opinion
that none of the grants the subject of the appeals "necessarily"
extinguished all incidents of aboriginal title. However, Questions I B
and IC cannot be answered in the form asked because I am also of the
opinion that the pastoral leases did not confer exclusive possession on
the grantees especially in the sense of excluding all holders of native
title rights, the existence and nature of which have not even been
canvassed. Indeed, the questions framed by reference to "exclusive
possession" ,tend to obscure what is the critical question, that of
extinguishment. Nevertheless, the questions should be answered as
best they can.
As to Question IB(a), the Wik Peoples did not press a challenge to
Drummond 1's answer. While the Thayorre People did not abandon
their challenge to Drummond 1's answer to Question Ic(a), they made
no submissions in support of that challenge. I am content to adopt
Gaudron 1's reasons for dismissing the appeal on this point.
In the light of these reasons for judgment, I would answer the
questions as follows:
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(b) No.
WIK (c) Does not arise.
PEOPLES
(d) Strictly does not arise but, In the light of these reasons, IS
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Toohey J
Question Ie
(a) No.
(b) No.
(c) Does not arise.
(d) Strictly does not arise but, In the light of these reasons, IS
properly answered No.
Question 4
No.
Question 5
No.
It follows that each appeal succeeds in part. The answers given by
Drummond J to Questions 1B(b), (c) and (d) and 1c(b), (c) and (d)
should be set aside and the questions answered in accordance with
these reasons. The Wik Peoples should have their costs of the appeal
relating to Question 1B(b), (c) and (d), to be paid by the respondents
who opposed the orders sought in relation to that question. The Wik
Peoples should pay the respondents' costs relating to Questions 4 and
5. The Wik Peoples and the Thayorre People should have their costs of
the appeal relating to Question 1c(b), (c) and (d), to be paid by the
respondents who opposed the orders sought in relation to that question.
The Thayorre People should pay the respondents' costs relating to
Question 1C(a). The matter should be remitted to Drummond J with
respect to the costs of the proceedings below and generally.
Postscript
Before leaving this judgment, it is important that the significance of
the answers proposed should be properly understood. What now
follows is said with the concurrence of Gaudron, Gummow and
Kirby 11 who each answers the questions in similar terms. The order
the Court makes will therefore reflect those answers.
In these appeals the Court has been called upon to answer questions
which, no doubt, it was hoped would resolve all important issues
between the parties. Having regard to the form of the questions framed
for the purpose of the proceedings in the Federal Court, that has not
proved possible.
To say that the pastoral leases in question did not confer rights to
exclusive possession on the grantees is in no way destructive of the
title of those grantees. It is to recognise that the rights and obligations
of each grantee depend upon the terms of the grant of the pastoral
lease and upon the statute which authorised it.
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. 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.
GAUDRON J. In June 1993, the Wik Peoples commenced proceed-
ings in the Federal Court of Australia against the State of Queensland,
the Commonwealth of Australia and other respondents, including
Comalco Aluminium Ltd (Comalco) and Aluminium Pechiney
Holdings Pty Ltd (Pechiney). They, the Wik Peoples, claimed native
title and possessory title rights over an area of land, including tidal
land, in far north Queensland and over the adjoining sea. In the
alternative, they claimed damages and sought various forms of
equitable relief. Other persons and bodies, including pastoralists, the
Aboriginal and Torres Strait Islander Commission and the Thayorre
People, were later joined as additional respondents.
The Thayorre People claim native title over part of the land the
subject of the Wik claim. When joined to the proceedings instituted by
the Wik Peoples, the Thayorre People cross-claimed against the State
of Queensland and others, including the Pormpuraaw Aboriginal
Council which, as trustee, holds part of the land which they, the
Thayorre, claim.
The Native Title Act 1993 (Cth) came into force on I January 1994.
The Wik Peoples then made a claim under that Act but procedural
rulings were made by Drummond J for the hearing and determination
of certain issues in the Federal Court proceedings which, it was
thought, might resolve the major, if not all, issues in the Federal Court
proceedings as well as those in the claim under the Native Title Act. In
the result, five questions were raised for determination as preliminary
questions of law, the first question containing three sub-questions, lA,
18 and Ie.
It will later be necessary to refer in some detail to some of the
questions raised for determination as preliminary issues. For the
moment it is sufficient to note that, at first instance, Drummond J
declined to answer one of those questions, Q 2, but answered the
others in a manner adverse to the interests of the Wik and the Thayorre
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Peoples (489). The Wik and Thayorre Peoples (together referred to as
"the appellants") were each granted leave to appeal to the Full
Federal Court and, in due course, their appeals were removed into this
Court pursuant to s 40 of the Judiciary Act 1903 (Cth).
The issues in the appeal
The notice of appeal filed on behalf of the Wik Peoples was
amended in various respects and, as a result, there is no longer any
challenge to the answers given by Drummond J to questions IA and 3.
Question IA was designed to determine whether, as a matter of State
constitutional law, the legislative power of the Queensland Parliament
is limited in such a way that it does not extend to laws extinguishing
or impairing native title rights. Question 3 was designed to determine
whether, assuming their previous existence, native title rights to
minerals and petroleum were extinguished by the enactment of general
legislation reserving or vesting minerals and petroleum in the Crown.
The result of the amendments to the notice of appeal filed on behalf
of the Wik Peoples is that they challenge the correctness of the
answers given by Drummond J to parts of questions IB and Ic and,
also, to questions 4 and 5. The Thayorre People only challenge the
answer to question Ic; and they alone challenge the answer to question
Ic(a). That sub-question is directed to ascertaining whether native title
rights are constitutionally protected by reason of undertakings given by
colonial authorities in the mid-nineteenth century. No argument was
addressed to that question in this Court.
The major issue in the appeal arises by reference to questions IB(b),
(c) and (d) and Ic(b), (c) and (d). Those sub-questions are directed to
ascertaining whether, as contended by the State of Queensland and the
other respondents who adopted the same position in this Court (490)
(together referred to as "the respondents"), the grant of pastoral leases
pursuant to the Land Act 191O (Q) (491) (the 191O Act) and the Land
Act 1962 (Q) (the 1962 Act) automatically extinguished native title
rights. The sub-questions proceed by reference to two leases granted
under the 191O Act (the Mitchellton Pastoral Leases) and one granted
under the 1962 Act (the Holroyd Pastoral Lease).
Questions 4 and 5 give rise to a separate and distinct issue, namely,
whether, as contended by the Wik Peoples, native title survived
separate agreements between the State of Queensland and Comalco
and Pechiney and the grant of bauxite mining leases to those
companies in accordance with those agreements.
(490) The second-fourth, ninth-twelfth and fourteenth-eighteenth respondents in both
appeals. The fifth respondent made submissions only with respect to question 5.
The sixth respondent did not appear before this Court. The seventh and eighth
respondents did not make any submissions contrary to those of the appellants and
the thirteenth respondent supported the Wik Peoples' submissions.
(491) 1 Geo V No 15.
The claims by the Wik Peoples with respect to bauxite mining leases
granted to Comaleo and Pechiney (Questions 4 and 5)
It is convenient to state at the outset that I agree with Kirby J, for
the reasons that his Honour gives, that Drummond J correctly
answered questions 4 and 5 against the interests of the Wik Peoples.
Accordingly, to that extent their appeal must be dismissed.
The arguments with respect to pastoral leases
As already mentioned, no argument was directed to question Ic(a).
As to questions IB(b), (c) and (d) and Ic(b), (c) and (d), it was argued
for the respondents in this Court and by the interveners who appeared
in the same interest (492) that pastoral leases granted under the 1910
and 1962 Acts were true leases in the traditional common law sense
and, thus, conferred rights of exclusive possession. Those rights,
according to the argument, are inconsistent with the continued
existence of native title rights and, thus, necessarily extinguished them.
On the other hand, the appellants and the interveners and respondents
appearing in the same interest (493) argued that pastoral leases granted
under those Acts were not true leases and did not confer rights of
exclusive possession, but merely rights to use land for pastoral
purposes.
By way of alternative, the appellants argued that, if pastoral leases
did confer rights of exclusive possession, native title rights were not
extinguished because those rights were not exercised either pursuant to
the Mitchellton Pastoral Leases or the Holroyd Pastoral Lease. The
respondents and supporting interveners replied to this contention by
asserting that it was the grant, not the exercise, of a right of exclusive
possession which operated to extinguish native title rights. In this they
were undoubtedly correct. As Deane J and I pointed out in Mabo v
Queensland [No 2J (494), native title rights "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" or other inconsistent dealings with the land by the Crown.
The appellants also contended, by way of further alternative, that
native title rights revived on expiry, surrender or forfeiture. The
respondents and interveners resisted this submission, arguing that, with
(492) The Attorneys-General for Victoria, South Australia, Western Australia and the
Northern Territory.
(493) While the Napranurn Aboriginal Council (seventh respondent) and Porrnpuraaw
Aboriginal Council (eighth respondent) made no submissions contrary to those of
the appellants, ATSIC (thirteenth respondent) supported the submissions of the
Wik Peoples. The Kimberley Land Council, Nanga-Ngoona Moora-Joonga
Association Aboriginal Corporation, Western Desert Punturkurnuparna Aboriginal
Corporation, Ngaanyatjarra Land Council, Northern Land Council, Central Land
Council and Ben Ward and others on behalf of the Miriuwung and Gajerrong
Peoples intervened in the same interest as the appellants.
(494) (1992) 175 CLR I at 110; see also at 68, per Brennan J; at 195-196, per Toohey J.
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the grant of a pastoral lease, the Crown acquired the interest in the
reversion and its radical title was thereby converted to full beneficial
ownership. The appellants, in turn, argued that there was no reversion,
in the sense for which the respondents and supporting interveners
contended.
Finally, the appellants argued that, if the Crown acquired the
reversion and, thus, full beneficial ownership by the grant of a pastoral
lease, the Crown owed a fiduciary duty to, and, thus, held the
reversion on trust for previous native title holders.
Leaving aside the question of trust, the arguments direct attention, in
the main, to the terms of the Mitchellton and Holroyd Pastoral Leases
and to the terms of the 1910 and 1962 Acts.
The Mitchel/ton land
As the Mitchellton Pastoral Leases were granted before the Holroyd
Pastoral Lease, it is convenient to deal with them first. They were
granted under the 1910 Act and are the subject of separate claims by
the Wik Peoples and the Thayorre People. The land the subject of
these Pastoral Leases (the Mitchellton land) is located north of
Normanton, in far north Queensland. It covers an area of 535 square
miles, extending from the Mitchell River to the Edward River in the
north and west to the Gulf of Carpentaria. It is in the District of Cook
which was opened up for occupation in 1866 (495).
Dealings with the Mitchellton land
There were no dealings with the Mitchellton land by government
authorities until 1912. In that year, on 23 May, an occupation
license (496) was granted to William Hutson for an area of "about 100
square miles". The license was expressed to extend "until
31 December [1912], and thereafter from year to year, so long as the
rent fixed from time to time in terms of the [1910] Act [should] be
punctually paid". The license was determinable in a number of
specified events, including in the event that the land was selected,
leased, reserved or sold under that Act. The license was subsequently
forfeited.
On 28 January 1915, an area of 535 square miles which included the
land the subject of the OCcup?tion license forfeited by William Hutson
was notified as open for pastoral lease "in terms of section 40" of the
1910 Act (497). It was granted to Alfred Joseph Smith, Thomas
Alexander Simpson and Marshall Hanley Woodhouse for a term of
thirty years from I April of that year (the first Mitchellton
(495) By Proclamation dated 27 December 1865 published in the Queensland
GovernmenT GazeTTe on 6 January 1866.
(496) Note that both the 1910 Act and the 1962 Act refer to licenses and accordingly
that word will be so used in this judgment.
(497) Published in the Queensland GovernmenT GazeTTe on 30 January 1915.
lease) (498). The lease was forfeited in 1918 for failure to pay
rent (499). It was accepted by Drummond J at first instance that the
lessees never entered into possession (500).
The Mitchellton land was again notified as open for lease on
23 August 1918 (501). On 14 February 1919, it was granted to Walter
Sydney Hood for a term of thirty years from I January 1919 (the
second Mitchellton lease). That same year, on 9 September, he
transferred his interest to Byrimine Pastoral Properties Ltd (the
company). The company surrendered the lease pursuant to s 122 of the
191O Act on 12 October 1921. Again it was accepted by Drummond J
that neither Mr Hood nor the company entered into possession (502).
Shortly before the surrender of the second Mitchellton Lease, the
Chief Protector of Aboriginals wrote to the Under Secretary, Home
Secretary's Department, informing him that there were "about 300
natives roaming on [the] country" and complaining that there had
been no consultation with his Department with respect to the lease. He
also noted that there was "a suggestion that the [c]ompany [might]
allow the lease to lapse" and urged that, if it did, his Department
should be consulted before anyone else was allowed to obtain
possession. Whether in consequence of this letter or otherwise, the
Mitchellton land was temporarily reserved for the use of Aborigines on
12 January 1922 (503) and permanently reserved for that purpose on
7 May 1930 (504). Although its precise status has changed from time
to time, it has apparently been held for and on behalf of Aboriginal
people ever since. And at least some of it is now part of the land held
in trust by the Pormpuraaw Aboriginal Council.
The question asked concerning the Mitchellton Pastoral Leases (Q Ie)
The question which Drummond J asked concerning the Mitchellton
Pastoral Leases (Q Ic) is as follows (505):
"If at any material time Aboriginal title or possessory title existed
in respect of the land demised under the pastoral leases in respect of
the Mitchellton Pastoral Holding No 2464 and the Mitchellton
Pastoral Holding No 2540 ... (Mitchellton Pastoral Leases):
(a) was either of the Mitchellton Pastoral Leases subject to a
reservation in favour of the Thayorre People and their
" predecessors in title of any rights or interests which might
(498) The grant was made on 25 May 1915.
(499) Declaration of forfeiture published in the Queensland Govemmelll Gazette on
20 July 1918.
(501) Published in the Queensland Govemment Gazette on 24 August 1918.
(503) Published in the Queensland Govemmelll Gazette on 14 January In!.
(504) By Order-in-Council published in the Queensland Govemmelll Gazette on 10 May
1930.
(505) See Wik Peoples v Queensland (1996) 63 FCR 450 at 487.
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comprise such Aboriginal title or possessory title which
existed before the New South Wales Constitution Act 1855
(Imp) took effect in the Colony of New South Wales?
(b) did either of the Mitchellton Pastoral Leases confer rights
to exclusive possession on the grantee?
(c) does the creation of the Mitchellton Pastoral Leases that
had these two characteristics confer on the grantee rights
wholly inconsistent with the concurrent and continuing
exercise of any rights or interests which might comprise such
Aboriginal title or possessory title of the Thayorre People and
their predecessors in title which existed before the New South
Wales Constitution Act 1855 (Imp) took effect in the Colony
of New South Wales?
(d) did the grant of either of the Mitchellton Pastoral Leases
necessarily extinguish all incidents of Aboriginal title or
possessory title of the Thayorre People in respect of the land
demised under either of the Mitchellton Pastoral Leases?"
Drummond J answered that question (506):
"as to question lc(a): No;
as to question 1c(b): Yes - both did;
as to question lc(c): Yes;
as to question 1C(d): Yes - the grant of the first of these leases
extinguished Aboriginal title."
It is common ground that, in the proceedings before Drummond J, no
argument was directed to the question whether possessory title was
necessarily extinguished by the grant of the Mitchellton Pastoral
Leases and that the answer to Q lc(d) does not cover that issue (507).
The terms of the Mitchellton Pastoral Leases
Each of the first and second Mitchellton Leases was expressed to
operate as a "Demise and Lease". The persons to whom they were
granted were described as entitled to a lease' 'in pursuance of Part III,
Division I of the [1910] Act" and together with their successors were
designated as "the Lessee". In each case, the "Demise and Lease"
was expressed to be made in consideration of a specified sum "paid
for a full year's rent and of the rent [t]hereby reserved". In each case
it was granted for "pastoral purposes only". And in each case, the
grant was expressed to be "subject to the conditions and provisoes in
Part III, Division I of the [1910] Act", all other rights, conditions and
restrictions contained in that Act and, also, the Mining on Private Land
Act 1909 (Q). The second Mitchellton Lease was also made subject to
the Petroleum Act 1915 (Q).
There were two express reservations of access in the Mitchellton
Pastoral Leases. The first was a reservation of access for the purpoSe
of searching for or working gold and minerals and, in the case of the
second Mitchellton Lease, petroleum. The second, which was in
identical terms in both leases, was a reservation of "the right of any
person duly authorised in that behalf by the Governor of Our said State
in Council at all times to go upon the said Land, or any part thereof,
for any purpose whatsoever, or to make any survey, inspection, or
examination of the same".
Early Queensland land law
It is convenient, before turning to the provisions of the 1910 Act, to
note some aspects of the early development of Queensland land law.
That account must begin with the early law of the Colony of New
South Wales which, at first, included the area that is now Queensland.
On settlement, there was introduced to the Colony of New South
Wales, "by the silent operation of constitutional principles" (508),
that English law "applicable to the condition of an infant Colony",
but not "artificial requirements and distinctions ... [which were]
neither necessary nor convenient" (509). And perhaps, "as the
population, wealth, and commerce of the Colony increase[d], many
rules and principles of English law, which were unsuitable in its
infancy, [were] gradually ... attracted" (510).
It was held by the Privy Council, in Cooper v Stuart (511), in
application of the principles to which reference has just been made,
that " [t]here was no land law or tenure existing in the Colony [of New
South Wales] at the time of its annexation to the Crown; and, in that
condition of matters ... as colonial land became the subject of
settlement and commerce, all transactions in relation to it were
governed by English law, in so far as that law could be justly and
conveniently applied to them" (512).
As pointed out by Drummond J at first instance, land in the Colony
of New South Wales was initially disposed of by the Governor in the
exercise of prerogative power (513). Thus, for example, the com-
mission of 2 April 1787 issued to Governor Phillip conferred "full
power and authority to agree for such lands tenements and
hereditaments as shall be in Our power to dispose of and grant to any
person or persons upon such terms and under such moderate quit rents
services and acknowledgments to be thereupon reserved unto Us
(508) Cooper v Stuart (1889) 14 App Cas 286 at 293.
(509) Blackstone, Commentaries, 1 Comm 107, approved by the Privy Council in
Cooper v Stuart (1889) 14 App Cas 286 at 291.
(511) (1889) 14 App Cas 286.
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according to such instructions as shall be given to you under Our Sign
Manual" (514).
The prerogative power to dispose of land gave way to a power
conferred by statute with the passage of the Sale of Waste Lands Act
1842 (Imp) (515). Section 2 of that Act provided that the waste lands
of the Crown in the Australian colonies were not to be alienated by the
Crown either in fee simple or for any less estate or interest otherwise
than by sale conducted in accordance with the regulations made under
the Act. That Act was amended by the Sale of Waste Lands Act
Amendment Act 1846 (Imp) (516) which provided, amongst other
things, for the making of rules and regulations by Orders-in-
Council (517).
Prior to 1847, most land was alienated by the grant of an estate in
fee simple (518). Following the enactment of the Sale of Waste Lands
Act Amendment Act 1846 (Imp), there issued an Order-in-Council of
9 March 1847 making distinct provision with respect to pastoral
leases (519). The Order-in-Council classified lands in the Colony as
"Settled Districts" (520), "Intermediate Districts" (521) or
"Unsettled Districts" (522) and, within those areas, pastoral leases
might be granted for one year, eight years or fourteen years
respectively (523).
Apart from the use of the word "lease", there was nothing in the
Order-in-Council of 9 March 1847 to indicate the estate or interest
intended to be conferred by the grant of a pastoral lease. However,
some indication appears from correspondence between the Secretary of
State, Earl Grey and the Governor of New South Wales, Sir Charles A
FitzRoy, discussing the concern that pastoral lessees might abuse their
position with respect to Aborigines who had traditionally used the
(514) Cited by Drummond J in Wik Peoples v Queensland (1996) 63 FCR 450 at 458
and by Barton ACJ in Williams v Attorney-General (NSW) (1913) 16 CLR 404
at 416-417.
(515) 5 & 6 Vict, c 36.
(516) 9 & 10 Vict, c 104.
(517) Section VI of the Sale of Waste Lands Act Amendment Act 1846 (Imp).
(518) Fry, Freehold and Leasehold Tenancies of Queensland Land (1946), P 20.
(519) Published in the Supplement to the New South Wales Government Gazette on
7 October 1847.
(520) Settled Districts comprised land in certain established counties, lands within a
specified radius of particular towns, lands within 3 miles of the sea, and lands
within 2 miles of the banks of certain rivers in the Colony - Ch I, s 2 of the rules
and regulations.
(521) Intermediate Districts comprised land within certain specified counties and any
other county whose boundaries were fixed and proclaimed on or before
31 December 1848 other than land within those counties designated as Settled
Districts - Ch I, s 3 of the rules and regulations.
(522) Unsettled Districts comprised all land in the colony of New South Wales which
was not otherwise designated as a "Settled District" or "Intermediate District"
- Ch I, s 4 of the rules and regulations.
(523) See Ch IV, s I, Ch III, s I and Ch II, s I of the rules and regulations.
land (524). That correspondence culminated in a despatch
accompanying an Order-in-Council of 18 July 1849 (525) permitting
the insertion in pastoral leases of conditions appropriate for "securing
the peaceable and effectual occupation of the lands comprised in such
leases, and for preventing the abuses and inconveniences incident
thereto". In that despatch Earl Grey wrote (526):
"Comparing the terms of the [Sale of Waste Lands Act Amendment
Act 1846 (Imp)] Sections I and 6, with those of the Order in
Council of 9th March 1847, there can, I apprehend, be little doubt
that the intention of Government was, as I pointed out in my
Despatch of II th February last, to give only the exclusive right of
pasturage in the runs, not the exclusive occup[a]tion of the Land, as
against Natives using it for the ordinary purposes: nor was it meant
that the Public should be prevented from the exercise, in those
Lands, of such rights as it is important for the general welfare to
preserve, and which can be exercised without interference with the
substantial enjoyment by the lessee of that which his lease was
really intended to convey."
There is also a minute to the same effect on an earlier despatch of
II October 1848 (527) in which it is recorded:
"But it must also be considered what ought to be done in order to
secure what is due to the natives as regards lands already leased for
14 years [under the Sale of Waste Lands Act Amendment Act 1846
(Imp)]. The introduct[io]n of a condit[io]n into these leases is now
impracticable, but I apprehend that it may fairly be assumed that
HM did not intend and [gave] no power by these leases to exclude
the natives from the [use] they had been accustomed to make of
these unimproved [Ian]ds and the quest[io]n arises whether some
declarat[io]n to that [effect] sh[oul]d not be introduced into the
[0 in C]?"
No declaration of that kind found its way into the Order-in-Council
which eventually issued.
The position with respect to the sale and disposal of land changed
(524) See especially Despatch No 24, Earl Grey to Sir Charles FitzRoy, II February
1848, Historical Records lif Australia, Series I, Vol 26 at p 223 (CO 201/382).
See also Despatch No 107, Sir Charles FitzRoy to Earl Grey, 17 May 1847,
enclosing Report, GA Robinson (Chief Protector of Aborigines at Port Phillip-
Loddon District) to the Colonial Office and other documents (CO 201/382);
Despatch No 221, Sir Charles FitzRoy to Earl Grey, II October 1848
(CO 20114(0).
(525) By Proclamation published in the New South Wales Government Gazette on
26 April 1850.
(526) Despatch No 134, Earl Grey to Sir Charles A FitzRoy, 6 August 1849, Despatches
to the Governor, Mitchell Library, MSA 1308.
(527) Minute from the Secretary of State for War and Colonies, 26 March 1849,
Despatch No 221, Sir Charles FitzRoy to Earl Grey (CO 201/4(0).
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significantly with the conferral of self government on the Colony of
New South Wales, it being provided in s 2 of the New South Wales
Constitution Act 1855 (Imp) (528) that "the entire Management and
Control of the Waste Lands belonging to the Crown in the said Colony
... shall be vested in the legislature of the said Colony". That
constitutional provision was subject to a number of provisos, only the
second of which is presently relevant. By that proviso, "nothing
[t]herein contained [was to] affect or be construed to affect any
Contract or to prevent the Fulfilment of any Promise or Engagement
made by or on behalf of Her Majesty, with respect to any Lands
situate in the ... Colony". It is that proviso which lies at the heart of
question lc(a).
The New South Wales Constitution Act 1855 (Imp) also provided, in
s 7, for the establishment of a separate colony or colonies by the
alteration of the Colony's northern border (529). Letters Patent were
issued pursuant to that section establishing Queensland as a separate
colony in 1859 (530). The Letters Patent conferred on the Governor of
Queensland, in cl 5, "full power and authority, by and with the advice
of the ... Executive Council, to grant ... any waste or unsettled lands
in ... [the] colony ... provided ... that in granting and disposing of
such lands [he] ... conform[ed] to and observe[d] the provisions in
that behalf contained in any law ... in force within ... [the] colony".
There were various statutes, including the Pastoral Leases Act 1863
(Q) which, from time to time, governed the exercise of that
power (531). Again, apart from the use of the word "lease", neither
that latter Act nor any other Acts making provision with respect to
pastoral leases indicated the estate or interest intended to be granted by
a lease of that kind.
With the enactment of the Queensland Constitution Act 1867
(Imp) (532), the position with respect to waste lands in that Colony
was brought into line with that provided for in New South Wales by
the New South Wales Constitution Act 1855 (Imp). Thus, it was
provided by s 40 of the Queensland Constitution Act 1867 (Imp) that,
subject to certain provisos, "[t]he entire management and control of
the waste lands belonging to the Crown ... [should] be vested in the
Legislature of the ... colony". Again, it is necessary to mention only
(528) 18 & 19 Viet, c 54.
(529) Earlier provisions to the same effect are to be found in s 51 of the New South
Wales and Van Diemen's Land Act 1842 (Imp) (5 & 6 Viet, c 76) and s 34 of the
Australian Colonies Act 1850 (Imp) (13 & 14 Viet, c 59).
(530) Published in the Queensland Government Gazette, 10 December 1859.
(531) See, eg, Unoccupied Crown Lands Occupation Act 1860 (Q) (24 Viet No II);
Tenders.li" Crown Lands Act 1860 (Q) (24 Viet No 12); Alienation of Crown
Lands Act 1860 (Q) (24 Viet No 15); Occupied Crown Lands Leasing Act 1860
(Q) (24 Viet No 16); Pastoral Occupation Act 1862 (Q) (26 Viet No 8). Except
for the Alienation of Crown Lands Act, all of these Acts were repealed by the
Pastoral Leases Act 1863 (Q) (27 Viet No 17).
(532) 31 Viet No 38.
one proviso, namely, a proviso in the same terms as that in the New
South Wales Constitution Act 1855 (Imp) relating to previous
contracts, promises and engagements. That proviso supplanted the
proviso to the same effect in the New South Wales Constitution Act
1855 (Imp) which, until then, had been part of the law of
Queensland (533).
The power conferred by s 40 of the Queensland Constitution Act
1867 (Imp) was exercised with the enactment of the Crown Lands
Alienation Act 1868 (Q) which provided, amongst other things, for the
selection of first and second class pastoral lands and the grant of
pastoral leases (534). Shortly afterwards there was enacted the
Pastoral Leases Act 1869 (Q) (535) which was concerned with land in
unsettled districts. There followed a number of other legislative
measures prior to the enactment of the 1910 Act (536). Again, apart
from the use of the word "lease", none of these measures provides
any indication as to the nature of the estate or interest created by the
grant of a pastoral lease.
Reservation in favour of Native Title Rights (Q I c(a))
As already mentioned, no argument was put in this Court with
respect to the answer to question Ic(a). However, the notice of appeal
filed on behalf of the Thayorre People challenges the answer given by
Drummond J. Accordingly, the issue raised by that sub-question must
be considered.
At first instance, the contention with respect to the issue raised by
question Ic(a) was that the despatches between Earl Grey and Sir
Charles FitzRoy with respect to Orders-in-Council made following the
(533) By cI 5 of the Letters Patent of 1859, the Governor of Queensland was vested with
full power to dispose of waste lands subject to any other law in force in
Queensland regulating such disposal. Clause 20 of an Order-in-Council dated
6 June 1859 (published in the Queensland Government Gazelle on 24 December
1859) provided that the laws of New South Wales operated until repealed or
varied by the Queensland legislature. Clause 17 of that Order-in-Council provided
thai it was lawful for the Queensland legislature to make laws regulating the
disposal of waste land subject to the provisions in the New South Wales
Constitution Act 1855 (Imp) and the Australian Waste Lands Act 1855 (Imp)
"which concern the maintenance of existing contracts", however cl 22 permitted
the legislature to repeal any provision in the Order-in-Council. The Order-in-
Council was repealed by s 3 of the Repealing Act 1867 (Q) (31 Vict No 39) which
was enacted concurrently with the Queensland Constitution Act 1867 (Imp).
Accordingly s 40 of the Queensland Constitution Act 1867 (Imp) replaced s 2 of
the New South Wales Constitution Act 1855 (Imp).
(534) 31 Vict No 46.
(535) 33 Vict No 10.
(536) See, eg, the Crown Lands Act 1884 (Q) (48 Vict No 28); the Crown Lands Acts
1884-1886 Amendmelll Act 1889 (Q) (53 Vict No 14); the Pastoral Leases
Extension Act 1890 (Q) (54 Vict No 14); the Crown Lands Au 1894 (Q) (58 Viet
No 25); the Land Act 1897 (Q) (61 Viet No 25); the Pastoral Leases Act 1900 (Q)
(64 Vict No 14); the Pastoral Holdings New Leases Act 1901 (Q) (I Edw VII
No 25) and the Land Act 1902 (Q) (2 Edw VII No 18).
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Sale of Waste Lands Act Amendment Act 1846 (Imp), to which
reference has already been made, contained promises or engagements
for the preservation of native title rights (537). According to the
argument, they constituted promises or engagements for the purposes
of the second proviso to s 2 of the New South Wales Constitution Act
1855 (Imp) which vested the management and control of waste lands
in the legislature of New South Wales. And, as earlier noted, that
proviso continued in effect in Queensland until supplanted by a
proviso in the same terms in the Queensland Constitution Act 1867
(Imp).
Drummond J rejected the contention with respect to the proviso to
s 2 of the New South Wales Constitution Act 1855 (Imp), holding that
it did "not encompass undertakings to preserve native title rights ...
but only undertakings to grant interests in Crown lands made before
the [Sale of Waste Lands Act 1842 (Imp)] came into force, which
undertakings had not been carried into effect or completed by issue of
a formal deed of grant when the [New South Wales Constitution Act
1855 (Imp)] came into effect" (538).
It is unnecessary to consider the detailed history by which
Drummond J came to the conclusion that the proviso was confined to
undertakings made before the Sale of Waste Lands Act 1842 (Imp)
came into force. It is sufficient to observe that it operated in a
legislative context concerned with the management and control of the
waste lands of the Crown. In that context, the proviso is properly to be
seen as directed to undertakings with respect to the disposal of waste
lands, and, perhaps, their reservation for public purposes, both of
which fell within the contemplation of the enacted legislation, not
undertakings with respect to the preservation of native title rights
which fell outside the operation of any legislation then existing. It
follows that, to the extent that it challenges the correctness of the
answer to question lc(a), the appeal of the Thayorre People must be
dismissed.
General provisions ofthe 1910 Act bearing on pastoral leases
The 1910 Act was in force when each of the Mitchellton leases was
granted and remained in force until after the second Mitchellton lease
was forfeited in 1921. It was amended in 1916 (539), 1917 (540),
1918 (541) and 1920 (542). These amendments are not directly
relevant to the nature of the interest taken under the Mitchellton
Pastoral Leases and it is thus convenient to refer to the 1910 Act in its
(539) Land Act Amendmenl Act 1916 (Q) (7 Geo V No 19).
(540) Land Act Amendment Act 1917 (Q) (8 Geo V No 21).
(541) Land Acts Amendment Act 1918 (Q) (9 Geo V No 8).
(542) Land Act Amendment Act 1920 (Q) (10 Geo V No 30); Land Acts Amendment Act
1920, No 2 (Q) (10 Geo V No 24).
unamended form. However, it should be noted that the 1916
amendments introduced a different kind of pastoral lease, namely, a
preferential pastoral lease which was subject to a condition of personal
residence during the first seven years of its term (543).
Sub-section (I) of s 6 of the 1910 Act provided, subject to that Act,
for the Governor to "grant in fee-simple, or demise for a term of
years, any Crown land within Queensland". "Crown land" was
defined in s 4 of the Act as:
being -
(a) Lawfully granted or contracted to be granted in fee-simple
by the Crown; or
(c) Subject to any lease or license lawfully granted by the
Crown: Provided that land held under an occupation license
shall be deemed to be Crown land."
"Occupation license" was also defined (s 4). In essence, an
"occupation license" was a license to occupy land for pastoral
purposes, expiring on 31 December of each year (544). There was no
definition of "demise", "lease" or "license". "Lessee" was defined
merely as "[t]he holder of a lease under [the] Act" (s 4).
By s 6(2) of the Act, it was provided that:
"The grant or lease [of Crown land within Queensland] shall be
made subject to such reservations and conditions as are authorised
or prescribed by this Act or any other Act, and shall be made in the
prescribed form, and being so made shall be valid and effectual to
convey to and vest in the person therein named the land therein
described for the estate or interest therein stated."
The Mitchellton Pastoral Leases were both in the prescribed form,
which form provided for reservations in the terms incorporated in
those Leases (545).
The Act provided for the grant of pastoral leases and for the grant of
leases of various agricultural selections, including "Perpetual Lease
Selection[s]", the latter of which were, by s 104(1), described as
"lease[s] in perpetuity". It also provided for licenses to occupy
pastoral land (ss 45-47) and licenses to occupy selections (ss 75-77),
the latter being licenses which operated pending the grant of a lease.
As well, the Act provided for the surrender of any holding on one
year's notice in writing or on payment of one year's rent in advance
(543) See Land Act Amendment Act 1916 (Q), s 5(d).
(544) Section 47(1). The license was renewable from year to year (s 47(3)), however it
could be detennined either by the Minister on three months notice (s 47(5, or
upon selection, reservation, lease or sale of the subject land (s 47(6)-(7)).
(545) Land Regulations 1912, Form 3 (published in the Queensland Government
Gazette on 28 June 1912).
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and other moneys due in respect of the holding (s 122). It also
provided for forfeiture, including for non-payment of rent (ss 129,
131). It will later be necessary to refer to some of these provisions in
greater detail. For the moment, their only significance is to permit an
understanding of s 135 which provided:
accordingly.' ,
There was no equivalent provision as to the situation obtaining on the
expiry of a pastoral lease. And prima facie, at least, s 135 appears to
have provided exhaustively as to the situation obtaining on forfeiture
or early determination.
Two other general provisions should be noted. Section 203 of the
Act created an offence of trespass on reserves and on Crown land
(which, by force of the definition of "Crown land" in s 4, included
pastoral land the subject of an occupation license, but. not land which,
in terms of s 6, had been "granted" or "demised"). Section 203 was
in these terms:
exceeding twenty pounds."
A procedure was laid down by s 204 for the issue of warrants for
the removal of "any person [who was] in unlawful occupation of any
Crown land or any reserve, or [was] in possession of any Crown land
under colour of any lease or license that [had] become forfeited". And
it was provided in the last paragraph of that section that:
"A lessee or his manager or a licensee of any land from the
Crown may in like manner make a complaint against any person in
A provision in similar terms to s 203, namely, s 91 of the Crown
Lands Alienation Act 1876 (Q), was considered by Brennan J in Mabo
v Queensland [No 2] (546). It was held in that case that general words
in a statute are not to be construed as extinguishing native title rights
unless that intention is manifest, as evidenced by the use of clear and
(546) (1992) 175 CLR 1.
unambiguous words to that effect (547). In application of that
principle, Brennan J said in a passage which, in my view, is clearly
correct, that s 91 and similar provisions were "not directed to
indigenous inhabitants who were or are in occupation of land by right
of their unextinguished native title" (548). That statement is equally
true of s 203.
Once it is accepted that s 203 did not render Aboriginal people
trespassers on their own land, it follows that s 204 did not, of itself,
render them trespassers on land the subject of a pastoral lease. Rather,
the question whether their presence constituted or, perhaps, was
capable of constituting "unlawful occupation", has to be determined
by ascertaining the nature of the rights conferred by the lease in
question.
Particular provisions of the 1910 Act relating to pastoral leases
Provision was made in the Act for procedures to be adopted for the
grant of pastoral and other land. It was provided in Pt III, which was
headed "Pastoral Tenures", for the Minister to notify that land was
"open for pastoral lease" (s 40) or "open for occupation under
occupation license" (s 45). The nature of the land which might be the
subject of a pastoral lease or of an occupation license was neither
defined nor described. However, some indication that the land was
generally remote from settled areas appears by contrasting the
provisions of Pt III with those of Pt IV, which was headed
"Selections". The latter provisions allowed for the Minister to notify
that "country land [was] open for selection either as surveyed land or
as designed land" (s 48), although an application for designed land
could not be approved until it was surveyed (s 49(2)(a. "Surveyed
land" was land which was surveyed with roads and reserves, whereas
"designed land" was land which was divided into portions merely by
markings on maps or plans (s 49). Further contrast may be made with
the provisions of Pt V, headed "Sales by Auction", which provided
for the Minister to notify that town, suburban and country land was
available for sale as lots (s 115).
Moreover, it is clear from s 43, which required the calculation of
rent according to the number of square miles, that pastoral leases
might be granted for vast areas, many times exceeding that available
for agricultural selections. There were statutory limits as to the areas
of the different selections for which the Act provided (s 56). However,
they were expressed in acres, not square miles (549).
(547) Mabo [No 2J (1992) 175 CLR I at 64. per Brennan J; at III, per Deane and
Gaudron JJ; at 195, per Toohey J. See also Mabo v Queensland [No JJ(1988) 166
CLR 186 at 213; Western Australia v The Commonwealth (the Native Title Act
Case) (1995) 183 CLR 373 at 423.
(548) Mabo [No 2J (1992) 175 CLR I at 66.
(549) One acre equals 0.405 ha (4,050 m
2
); one square mile equals 2.59 km
2
(2,590,000 m
2
).
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Section 41 provided for the processing of applications for pastoral
leases, directing in sub-s (4) that "[t]he lease [should] be issued to the
successful applicant and [should] commence on the quarter day next
ensuing after the date of acceptance of his application". There was no
provision dealing with occupation or possession of pastoral land, the
rights in that regard being left to inference from the word "lease", the
expression "occupation license" and the terms of s 204 which, as
already mentioned, allowed that a lessee or licensee might take action
for the removal of persons in "unlawful occupation". By contrast, it
was expressly provided by s 75 that, on the approval of a settlement
application and on payment of the sum required by the Act, the
applicant was entitled "to receive ... a license to occupy the land"
and, by s 76(1), that "[fJrom and after the date of his license to
occupy, the selector may enter upon the land and take possession
thereof" .
As appears from the terms of the Mitchellton Pastoral Leases, there
were certain conditions applicable to pastoral leases by virtue of the
provisions of Pt III of the Act. By s 40, the Minister might declare in
the opening notification that land was open subject to one or both of
the conditions specified in that section, namely, a condition that the
land should be enclosed and kept enclosed with a rabbit-proof fence or
a condition for the destruction of noxious plants. Neither of the
Mitchellton leases was subject to either condition.
There was one other condition imposed by Pt III, Div I, namely, a
condition with respect to the payment of an annual rent at the rate for
the time being prescribed (s 43). And as earlier indicated, the rent was
to be calculated according to the number of square miles comprised in
the lease. The word "rent" was not used in a way that gives any clear
indication of the nature of the interest effected by leases authorised by
the Act for the Act also required the payment of rent pursuant to
licenses to occupy pastoral land (s 46) and pursuant to occupation
licenses granted following approval of settlement applications (s 75).
Again, as the terms of the Mitchellton Pastoral Leases indicate, the
Act provided with respect to "other rights ... conditions ... [and]
restrictions" applicable to pastoral leases. Some were also applicable
to other holdings. There was a prohibition in s 198 on ringbarking,
cutting and destructicn of trees. This condition applied to lessees of
pastoral holdings, to holders of occupation licenses, and, also, to
selectors of Agricultural, Prickly-pear and Unconditional Selections.
However, in the case of selections, it applied only during the first five
years (s 198(1)).
Another restriction was to be found in ss 199 and 200.
Section 199(1) provided for the issue of licenses to persons "to enter
upon any Crown land, or any pastoral holding, or any Grazing
Selection, or any road or reserve, and to cut, get, and remove timber,
stone, gravel, clay, guano, or other material, but not, unless with the
consent of the lessee, within two miles of the head station of any
pastoral holding". The licenses were given further effect by s 200
which provided that, except to the extent that the Act pennitted
otherwise, "a lessee of a pastoral holding or the holder of a Grazing
Selection [should] not have power to restrict persons duly authorised
by law from cutting or removing timber or material within his
holding" .
Section 205 was another provision of some importance. It allowed
for a drover or traveller riding or driving stock on a stock route or road
passing through a pastoral holding or through land the subject of an
occupation license to depasture the stock on "any part of the land
which [was] within a distance of half a mile from the road and [was]
not part of an enclosed garden or paddock under cultivation, and
which [was] not within a distance of one mile from the principal
homestead or head station".
The interest conferred by the Mitchellton Pastoral Leases
It is clear that pastoral leases are not the creations of the common
law. Rather, they derive from specific provision in the Order-in-
Council of 9 March 1847 issued pursuant to the Sale of Waste Lands
Act Amendment Act 1846 (Imp) and, so far as is presently relevant,
later became the subject of legislation in New South Wales and
Queensland (550). That they are now and have for very many years
been entirely anchored in statute law appears from the cases which
have considered the legal character of holdings under legislation of the
Australian States and, earlier, the Australian Colonies authorising the
alienation of Crown Lands. Thus, for example, it was said of such
holdings in O'Keefe v Williams (551) that "[t]he mutual rights and
obligations of the Crown and the subject depend, of course, upon the
tenns of the Statute under which they arise".
O'Keefe v Williams is of particular interest because it was argued in
that case that occupation licenses under the Crown Lands Act 1884
(NSW) and the Crown Lands Act 1895 (NSW) conferred "an absolute
right to possession as against all the world" with the consequence that
there was no necessity to imply a right of quiet enjoyment (552). The
argument was disposed of on the basis that, "if sound", it would
(5.50) See also, eg, Victoria: Land Act 1869 (Viet), Land Act 1884 (Viet), Land Act 1890
(Viet), Land Act 1898 (Viet), Land Act 1901 (Viet), Land Act 1915 (Viet);
Western Australia: Land Regulations 1850 (WA), Additional Land Regulations
1851 (WA), Regulations for the Sale, Letting, Disposal and Occupation of Waste
Lands 1864 (WA), Land Act 1898 (WA); Northern Territory: Northern Territory
Act 1863 (SA), the Northern Territory Land Act 1872 (SA), the Northern
Territory Crown Lands Consolidation Act 1882 (NT), the Northern Territory
Crown Lands Act 1890 (SA), the Northern Territory Land Act 1899 (SA), Crown
Lands Ordinance 1912 (NT).
(551) (1910) 11 CLR 171 at 190, per Griffith CJ; see also at 207, per Isaacs J. See
further Davies v Littlejohn (1923) 34 CLR 174 at 187-188; R v Toohey; Ex parte
Meneling Station Ply Ltd (1982) 158 CLR 327 at 344; Minister for Lands and
Forests v McPherson (1991) 22 NSWLR 687 at 696.
(552) O'Keefe v Williams (1910) II CLR 171 at 191-192.
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negative an implied covenant for quiet enjoyment in leases between
subject and subject (553). However, that case does contain statements
suggesting that the occupation licenses in question conferred an
exclusive right of occupation (554), a suggestion also made in O'Keefe
v Malone (555), an earlier case involving the same licenses, and in
Macdonald v Tully (556), a case arising under the Tenders for Crown
Lands Act 1860 (Q).
It may be that in O'Keefe v Williams Griffith CJ and Isaacs J both
used the expression, "exclusive right to occupy" as synonymous with
the expression "exclusive right of possession" (557). However, that is
of little or no significance not only because the case was concerned
with different legislation but because their Honours proceeded on the
view that the Privy Council had held in O'Keefe v Malone that the
occupation licenses in question were leases (558). In truth, their
Lordships held only that a power to relieve against "the lapse or
voidance of [a] contract ... for the purchase or leasing of Crown
lands" extended to relieve against forfeiture of the occupation
licenses. And, perhaps, of some relevance to this case, their Lordships
reached that conclusion because "the words 'leased,' 'lease,' and
'lessee,' [were] frequently used [in the relevant legislation] as words
of a generic import, including lands held under occupation licence, or
the licence or the holder thereof" (559).
Whatever may have been said in the decided cases as to holdings
under other legislation, it is clear that the Mitchellton Pastoral Leases
derive entirely from the 1910 Act and that they conferred, and only
conferred, the estate or interest which that Act authorised. As there has
been no case which decides what that estate or interest was and as the
Act, itself, contained no express provision in that regard, the estate or
interest must be ascertained by application of those principles of
statutory construction which have been devised to determine what it
was that the legislature intended but failed to say in plain words.
There are two features which point in favour of the view that the
Mitchellton Pastoral Leases were true leases in the traditional common
law sense and, thus, conferred rights of exclusive possession. The first
is the language of the Act and of the Leases. In this regard, the use of
the words "demise", "lease" and derivatives of the word "lease" in
(553) O'Keefe v Williams (1910) 11 CLR 171 at 192.
(554) O'Keefe v Williams (1910) 11 CLR 171 at 191.
(555) [1903] AC 365.
(556) (1870) 2 QSCR 99 at 105, 106, 108. See also Wildash v Brosnan (1870)
I QCLLR 17 at 18, where there was reference to a lessee's "exclusive right to the
land" under a pastoral lease granted pursuant to the Crown Lands Alienation Act
1868 (Q).
(557) O'Keefe v Williams (1910) II CLR 171 at 191-193, per Griffith CJ; at 212, per
Isaacs J; see also at 200-20I, per Barton J.
(558) O'Keefe v Williams (1910) II CLR 171 at 191, per Griffith CJ; at 208, per
Isaacs J; see also at 196, per Barton J.
the statutory provISIons concerned with pastoral leases and in the
Leases themselves, are to be noted. Similarly, it is to be observed that
s 6(1) of the Act speaks of a "demise for a term of years", "demise"
being a word traditionally used to create a leasehold estate (560).
Moreover, the word "lease" and the expression "demise for a terms
of years" are used not only in relation to pastoral leases, but also in
connection with agricultural holdings. However, it will later appear
that there is no sound basis for assuming that they necessarily have the
same meaning when used in relation to the various different holdings
permitted by the Act.
The second feature which points in favour of the view that pastoral
leases under the 1910 Act were true leases is that the 1910 Act clearly
distinguished between leases and licenses, thereby suggesting that it
was maintaining the traditional common law distinction between a
lease, which confers a right of exclusive possession, and a license,
which does not.
Ordinarily, words which have an established meaning at common
law are construed as having the same meaning in a statute unless there
is something in the words or the subject matter of the statute to
indicate otherwise. This is but an instance of the general rule that
statutes are not to be construed as altering common law principles
unless that is clearly intended. Thus, in American Dairy Queen (Q'ld)
Pty Ltd v Blue Rio Pty Ltd (561), where the question arose whether the
1962 Act precluded the right of a sub-lessee to transfer or mortgage its
interest in a lease of an area reserved under Pt XI of that Act (562),
Mason J observed (563):
"The general rule is that the courts will construe a statute in
conformity with the common law and will not attribute to it an
intention to alter common law principles unless such an intention is
manifested according to the true construction of the statute ... This
rule certainly applies to the principles of the common law governing
the creation and disposition of rights of property. Indeed, there is
some ground for thinking that the general rule has added force in its
application to common law principles respecting property rights."
However, there are difficulties in applying that principle to the word
"lease" and the expression "demise for a term of years" in the 1910
(560) Coke, Commentary upon Littleton, "Of Tenant for yeares" LI c7 Sect 58 [45b]:
"Words to make a lease be, demise, grant, to fearme let, betake; and whatsoever
word amounteth to a grant may serve to make a lease."
(561) (1981) 147 CLR 677.
(562) Part XI of the 1962 Act deals with "Grants. Reserves and Reservations for Public
Purposes" .
(563) American Dairy Queen (1981) 147 CLR 677 at 682-683. See also Wade v New
South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 185. per
Windeyer J and the cases there cited.
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Act, even in a context where a distinction is drawn between a lease
and a license.
It is well settled that the question whether an instrument creates a
lease or a license is a question of substance not one of language (564).
It is also well settled that it is a question to be answered, at least in the
first instance, by asking whether the instrument in question confers a
right of exclusive possession (565). These principles of interpretation
are equally applicable in the construction of a statute concerned with a
particular type of holding not known, as such, to the common law, but
devised to suit the peculiar conditions of the Australian colonies. Thus,
the word "lease" and the expression "demise for a term of years"
cannot, of themselves, provide a basis for holding that a pastoral lease
under the 1910 Act conferred a leasehold estate, as understood by the
common law and, thus, conferred a right of exclusive possession.
Rather, the search must be for indications within the Act that it was
intended that pastoral leases should confer that right.
Because it is necessary to look for indications within the Act to
ascertain the estate or interest intended to be conferred by a pastoral
lease and, indeed, by a lease of any of the holdings permitted by the
1910 Act, there is no basis for assuming that "lease" and "demise for
a term of years" bear precisely the same meaning when used in
relation to each of those different holdings. And for that reason, also, it
would be wrong to place over-much reliance on the 1910 Act's
apparent distinction between a lease and a license. Particularly is that
so in a statutory context in which an occupation license with respect to
pastoral land may be readily distinguishable from a pastoral lease by
reason of the short term nature of the license (566).
Another difficulty with approaching the word "lease" and the
expression "demise for a term of years" in the 1910 Act as if they
bore their common law meaning is that, whatever may be the position
in other areas of the law, there is no very secure basis for thinking that
pastoral leases owe anything to common law concepts. As already
indicated, pastoral leases are statutory devices designed to suit the
peculiar conditions of the Australian colonies, deriving from the
Order-in-Council of 9 March 1847. And as has been seen, the common
(564) Radaich v Smith (1959) 101 CLR 209. See also Claude Neon Ltd v Melbourne
and Metropolitan Board of Works (1969) 43 ALJR 69 at 71; Goldsworthy Mining
Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 at 212.
(565) Radaich v Smith (1959) 101 CLR 209 at 214, 217, 219-220, 222. See also Chelsea
Investments Ply Ltd v Federal Commissioner of Taxation (1966) 115 CLR I at 7;
Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR
69 at 71; Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973)
128 CLR 199 at212.
(566) Whereas an occupation license expired on 31 December each year and was
determinable at any other time on three months notice or on selection, reservation
or lease of the land (s 47), a pastoral lease could be granted for a term of up to
thirty years (s 40(2.
law was only applicable in the early days of the Colonies to the extent
that that was necessary or convenient.
In 1847, when pastoral leases were devised, the Colony of New
South Wales had been established for nearly sixty years. However,
there were vast areas which had not then been opened up for
settlement, including the land in issue in this case. Even if pastoral
leases were devised with common law concepts in mind, they were a
novel concept and there is nothing to suggest that it was necessary or
convenient for them to conform precisely to the common law. More to
the point, perhaps, there is nothing to suggest that a right of exclusive
possession was either a necessary or convenient feature of pastoral
leases in the conditions of the Colony of New South Wales in 1847.
And there is nothing to suggest that subsequent statutory measures
culminating in the 1910 Act effected any significant change with
respect to the estate or interest which they conferred.
A third difficulty with attributing the features of common law leases
to the holdings described as "pastoral leases" in the 1910 Act is that,
at least in one significant respect, the Act prescribes a quite different
feature. As the common law stood in Queensland until 1975, a
leasehold estate vested only on entry into possession (567). In contrast,
s 6(2) of the Act provided that it was the making of a grant in the
prescribed form which operated to convey and vest the interest thereby
granted.
Finally, there is the difficulty of construing "lease" in the 1910 Act
as the equivalent of a lease at common law in a context in which the
Act clearly used the word "lease" to refer to something quite foreign
to the common law conception of a lease. At common law, a lease is
normally a demise for a term of years. However the 1910 Act
authorised the grant of perpetual leases which, as already indicated,
were expressed to be "leases in perpetuity", an expression which is
unknown to the common law and which cannot possibly take its
meaning from it (568).
Quite apart from the difficulties involved in approaching the
provisions of the 1910 Act on the basis that the word "lease" and the
expression "demise for a term of years", of themselves, indicate that
pastoral leases were true leases in the traditional common law sense,
there were provisions in the Act indicating that they were not.
(567) A lease without entry conferred an interest in the term (interesse termini) but no
estate: Coke, Commentary upon Littleton, "Of Tenant for yeares" Ll c7 Sect 58
[46b]; Blackstone, Commentaries, Bk II, P 144; Joyner v Weeks [1891] 2 QB 31
at 47. The doctrine of interesse termini was abolished by s 102 of the Property
Law Act 1974 (Q) as from I December 1975.
(568) Sevenoaks, Maidstone & Tunbridge Railway Co v London. Chatham & Dover
Railway Co (1879) II Ch D 625 at 635: "Now we have not by law any such thing
as a lease in perpetuity. We have a fee simple subject to a rent-charge, and we
have a lease for years, but we have no such thing as a lease in perpetuity"; Fry
"Land Tenures in Australian Law", Res Judicatae, vol 3 (1947) 158, at p 167.
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Certainly, there were indications that they did not confer a right of
exclusive possession which, as already mentioned, is an essential
feature of a lease at common law.
The strongest indication that a pastoral lease granted under the 1910
Act did not confer a right of exclusive possession is to be found in
those provisions of the Act conferring rights on persons authorised in
that behalf to enter upon land the subject of a pastoral lease to remove
timber, stone, gravel, clay, guano or other material (s 199), denying
the lessee the right to ringbark, cut or destroy trees (s 198) and also
denying the lessee power to restrict authorised persons from cutting or
removing timber or material within the holding (s 200). There is a
similar indication in the provision permitting others to depasture stock
if a stock route or road passed through the holding (s 205). And, of
course, there were the reservations in the Leases as required by the
prescribed form of lease. In particular, there were the identical
reservations in both Leases of "the right of any person duly authorised
in that behalf ... at all times to go upon the said Land, or any part
thereof, for any purpose whatsoever, or to make any survey,
inspection, or examination of the same" (emphasis added).
There is another indication that a pastoral lease granted under the
1910 Act did not confer a right of exclusive possession. In
contradistinction to the express provision contained in s 76( I) of the
1910 Act with respect to persons whose applications for agricultural
holdings had been approved, there was no provision in the Act
authorising a pastoral lessee to take possession of the land the subject
of a lease. Rather, the only right expressly conferred on pastoral
lessees in that regard was that conferred by s 204 of the Act, namely,
to take action for the removal of persons in "unlawful occupation".
And, as already explained, that provision did not, of itself, confer a
right of exclusive possession.
Moreover, the vastness of the areas which might be made the
subject of pastoral leases and the fact that, inevitably, some of them
would be remote from settled areas militate against any intention that
they should confer a right of exclusive possession entitling pastoralists
to drive native title holders from their traditional lands. Particularly is
that so in a context where, in conformity with the prescribed form, the
g r a l l ~ s were expressed to be made' 'for pastoral purposes only".
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 2J to which some
reference has already been made (569). That rule is that general
(569) See note 547.
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" (570).
As Deane J and I explained in Mabo [No 2J 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" (571). Whether the rule be stated generally or by
reference to native title rights, it dictates the conclusion that, whilst the
grant of a pastoral lease under the 1910 Act certainly conferred the
right to occupy land for pastoral purposes and s 204 conferred the right
to bring action for the removal of persons in unlawful occupation, a
pastoral lease did not operate to extinguish or expropriate native title
rights, as would have been the case, had it conferred a right of
exclusive possession.
The Mitchellton Pastoral Leases: the Crown's "reversionary interest"
It follows from the conclusion that the grant of a pastoral lease
under the 1910 Act did not confer a right to exclude native title
holders and, thus, did not confer a right of exclusive possession that
the Mitchellton Leases were not true leases in the traditional common
law sense, and, thus, did not operate to vest a leasehold estate. As a
reversionary interest only arises on the vesting of a leasehold
estate (572), there is no basis for the contention that, on the grant of
the Mitchellton Leases, or, more accurately, on the grant of the first
Mitchellton Lease, the Crown acquired a reversionary interest, as that
notion is understood by the common law, and its radical title was
thereby expanded to full beneficial ownership.
Moreover, the provisions of the 1910 Act run counter to the notion
that the Crown acquired a reversionary interest of the kind for which
the respondents contended. As already indicated, a reversionary
interest arises on the vesting of a leasehold estate, which, prior to 1975
in Queensland, occurred on entry into possession. However, s 6(2) of
the 1910 Act operated to vest the estate or interest conferred by a grnnt
under the Act, not on entry into possession, but on the making of a
grant in the prescribed form.
(570) Mabo v Queensland [No 2] (1992) 175 CLR I at III.
(571) Mabo [No 2] (1992) 175 CLR I at III. See also the cases there cited, namely,
The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563; Central Control
Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744 at 752; Clissold
v Perry (1904) I CLR 363 at 373-374 (affd (1906) 4 CLR 374; [1907] AC 73). a
case dealing with possessory title.
(572) Coke, Commentary upon Littleton, "Of Fee taile" LI c2 Sect 19 [22bJ;
Blackstone, Commentaries, Bk II, P 175.
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Furthennore, s 135 made provision for what may be called a
statutory reversion in the event of "detenninat[ion] by forfeiture or
other cause before the expiration of the period or tenn for which it was
granted", specifying that in that event it should' 'revert to His Majesty
and become Crown land", able to be "dealt with under [the] Act
accordingly". In the event of forfeiture or early detennination, the
clear effect of s 135 was to assimilate the land involved to land which
had not been alienated, reserved or dedicated for public purposes and
which, therefore, was "Crown land" as defined in s 4 of the Act. In
other words, the effect of s 135 was, in that event, to assimilate the
previously alienated land to land in respect of which the Crown had
radical title, and not to land in respect of which it had beneficial
ownership.
The fact that in these two respects the 1910 Act proceeded on a
basis which was at odds with the common law principles with respect
to reversionary interests tends to confinn the conclusion otherwise
reached in the application of ordinary principles of statutory
construction, namely, that the grant of a pastoral lease under the 1910
Act did not confer a right of exclusive possession.
Conclusion with respect to the Mitchellton Pastoral Leases: answer to
question 1C
The conclusion I have reached by application of ordinary principles
of statutory construction renders it unnecessary for me to consider the
appellants' alternative arguments with respect to fiduciary duties. And
it follows from that conclusion that Drummond J was in error in
answering question lc(b) as he did. Instead it should have been
answered "No". So answered, sub-questions lC(c) and (d) do not
arise. However, in the light of these reasons, I would answer sub-
question lc(d) "No".
The Holroyd land
The land the subject of the Holroyd Pastoral Lease (the Holroyd
land) is also in the District of Cook. It is further north and to the east
of the Mitchellton land and about 24 miles west of Coen. It covers an
area of approximately 1,120 square miles (573) or 2,830 km
2
and
extends north and east from the Holroyd River.
Dealings with the Holroyd land
The Holroyd land was declared open for pastoral lease on 8 June
1944 (574). On 8 February 1945, Marie Stuart Perkins was granted a
"Lease of Pastoral Holding under Part III, Division I, of the Land
Acts, 1910 to 1943" for a tenn of thirty years from 1 October 1944
(573) The original grant was for an area of 1,120 square miles but one square mile was
resumed for the purposes of a road in 1953.
(574) Published in the Queensland Government Gazette on 10 June 1944.
(the first Holroyd Lease). It was the subject of a number of transfers.
During the term of that lease, the 1910 Act was repealed and the 1962
Act enacted.
In 1972, the then lessees of the first Holroyd lease applied under
s 155 of the 1962 Act for a new lease of the Holroyd land. The
application was approved, subject to the incorporation of certain
conditions in the new lease. On 31 December 1973, the first Holroyd
lease was surrendered and a second lease, the Holroyd Pastoral Lease,
was granted over the same land for a term of thirty years from
I January 1974. The 1962 Act was amended by the Land Act
Amendment Act 1986 (Q) and, pursuant to s 5 of that latter Act, the
term of the lease was extended by twenty years. In 1989 the lease was
transferred to the present owners, members of the Shepherdson family.
The question asked concerning the Holroyd Pastoral Lease (Q 18)
Save that it refers to the Holroyd Pastoral Lease, the question asked
of the Holroyd land, question IB, is the same as question lc, the
question asked of the Mitchellton Pastoral Leases. And save that his
Honour was dealing with one lease, not two, Drummond J answered
question IB in the same manner as he answered question IC (575).
Three matters should be noted with respect to the answers given by
Drummond J to question lB. The first is that there is no longer any
challenge to his Honour's answer to question IB(a). The second is that
it is common ground that, as with the answer to question lc(d), the
answer to question IB(d) does not extend to possessory title. The third
matter and the one that lies at the heart of these proceedings, as they
affect the Holroyd land, is that, in answering question I B(b), his
Honour held that the Holroyd Pastoral Lease conferred a right of
exclusive possession. To determine whether that is so it is necessary to
analyse the terms of the Lease and, also, the provisions of the 1962
Act which, like the 1910 Act, contained no express provision as to the
estate or interest conferred by a pastoral lease.
The terms of the Holroyd Pastoral Lease
The Holroyd Pastoral Lease is expressed to be a "Lease of Pastoral
Holding under Part VI, Division I, of the Land Act 1962-1974". It is
in a form similar to that of the Mitchellton Pastoral Leases. It recites
that the grantees were entitled to a lease of the Holroyd land pursuant
to Pt VI, Div I of the 1962 Act (576). It is expressed to operate as a
"Demise and Lease" made in consideration of an amount "paid for a
full year's rent, and of the rent [t]hereby reserved". It is not expressed
to be granted solely for pastoral purposes.
The Lease is expressly made subject to the conditions and provisos
in Pt III, Div I of the 1962 Act and subject also to the Mining Act
(576) Part VI, Div I is entitled "Renewal of Leases before Expiry" and includes s 155.
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1968-1974 (Q) and the Petroleum Acts 1923-1967 (Q) and regulations
made under those three Acts. It contains reservations in similar terms
to those in the Mitchellton Pastoral Leases, including a reservation of
"the right of any person duly authorised in that behalf by the
Governor of Our said State in Council at all times to go upon the said
Land, or any part thereof, for any purpose whatsoever, or to make any
survey, inspection, or examination of the same".
The Holroyd Pastoral Lease also contains the following special
conditions:
"The Lessees shall within five (5) years from the date of the
commencement of the lease and to the satisfaction of the Minister:
(a) Construct Manager's residence, quarters for five (5) men
and a shed (machinery shed, store, workshop, etc);
(b) Construct an airstrip to Department of Civil Aviation
standard for mail service and flying doctor service;
(c) Erect ninety (90) miles of internal fencing;
(d) Erect I set of main yards and dip;
(e) Construct in the melonhole country three (3) earth dams of
not less than 3,060 cubic metres (4,000 cubic yards) capacity
each;
(f) Sow at least 40.5 hectares (100 acres) to Townsville Style
as a seed production area; and
(g) Enclose the holding with a good and substantial fence."
There is a further condition requiring that all improvements be
maintained in good repair during the term of the lease. These
requirements reflect the conditions attached to the approval of the
application for a new lease under s 155 of the 1962 Act.
Special conditions of the Holroyd Pastoral Lease
Some but not all of the special conditions of the Holroyd Pastoral
Lease have been satisfied. It is not clear whether, as permitted by
s 64(3) of the 1962 Act, the Minister formally exempted the lessees
from compliance with the condition as to boundary fencing. However,
it seems that, at the very least, a decision has been made not to enforce
it. Some seed has been sown, and some internal fencing, dams and
mustering yards constructed, bL't, the mustering yards are no longer
usable and main yards and dip have not been built. An airstrip,
machinery shed and toilet block have been constructed but, by
November 1988, work had not commenced either on the manager's
residence or on the workmen's quarters. It was reported in that year
that a house was to be built within the next twelvc months but the
materials provided by the parties do not disclose what, if anything, has
happened since.
General provisions of the 1962 Act bearing on pastoral leases
The 1962 Act was amended from time to time and repealed in
1995 (577). The amendments do not bear on the question whether the
Holroyd Pastoral Lease conferred a right of exclusive possession. It is
therefore convenient to approach that question by reference to the
1962 Act in its unamended form. The long title of that Act was "An
Act to Consolidate and Amend the Law relating to the Alienation,
Leasing and Occupation of Crown Land" and it is not surprising,
therefore, that several of its provisions are or are substantially to the
same effect as those of the 1910 Act.
In terms only slightly different from those in the 1910 Act, s 6(1) of
the 1962 Act authorised the Governor-in-Council, subject to that latter
Act, to "grant in fee-simple, or demise for a term of years or in
perpetuity, or deal otherwise with any Crown land within
Queensland". "Crown land" was defined in terms which were
identical to those found in the 1910 Act (578). By s 6(2) of the 1962
Act it was necessary that a grant or lease be subject to the reservations
and conditions authorised or prescribed by that or any other Act and
that it be made in the prescribed form. It was also provided in s 6(2)
that, when so made, the grant or lease was "valid and effectual to
convey to and vest in the person therein named the land therein
described for the estate or interest therein stated". The Holroyd
Pastoral Lease is in the form prescribed as at the date of its grant,
which form provided for reservations in the terms incorporated in the
Lease (579).
The Act provided for the grant of "occupation licenses" over
pastoral land (580), pastoral leases (581), leases of stud holdings (582)
and the sale and lease of various agricultural holdings (Pt IV). No
relevant distinction is to be drawn between occupation licenses granted
under the 1910 Act and those granted pursuant to the 1962 Act.
However, the provisions of the 1962 Act with respect to pastoral
leases differ from those of the 1910 Act as it stood when the
Mitchellton Pastoral Leases were granted for the reason, among others,
that provision was made for the grant of pastoral leases under three
different forms of tenure, namely, pastoral holding, pastoral develop-
ment holding and preferential pastoral holding (s 49). As appears from
its temis, the Holroyd Pastoral Lease is a lease of a pastoral holding.
(577) Land Act 1994 (Q), s 524. Note that certain provisions of the 1962 Act are still in
force, none of which are presently relevant.
(578) Section 5 of the 1962 Act, s 4 of the 1910 Act.
(579) Form 5 of the Regulations under the 1962 Act published in the Queensland
Government Gazette on 5 February 1963. Note however that the lease was granted
pursuant to Pt VI, Div I of the 1962 Act rather than Pt III, Div I as on the
prescribed form.
(580) Di v III of Pt III.
(581) Div I ofPt III.
(582) Div II of Pt III.
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The chief difference between the lease of a pastoral holding and
other pastoral holdings under the 1962 Act is that additional conditions
attached to leases of pastoral development holdings and preferential
pastoral holdings. A lease of a pastoral development holding could
only be granted if "the cost of developing the land [would be]
abnormally high, and [if] developmental conditions [were] imposed
calculated to improve the carrying capacity and productivity of the
land and to develop the public estate" (s 49(1)). A preferential
pastoral holding, like its counterpart under the 1910 Act, was subject
to a requirement of personal residence (583). Similarly, on the
conversion of a pastoral holding to a stud holding, as permitted by
s 66(1) of the 1962 Act (584), the lessee came under an additional
obligation to provide the Minister with information with respect to the
stud (s 67) and to satisfy conditions associated with its running
(s 73(3)).
The 1962 Act also effected a number of changes with respect to
agricultural holdings. It allowed for only four agricultural holdings,
namely, agricultural farm holdings, perpetual leases, settlement farm
and grazing selections, with the latter having two sub-categories,
namely, grazing homestead selections and grazing farm selections
(ss 83, 84). As with perpetual leases under the 1910 Act, a perpetual
lease under the 1962 Act was described in s 127( 1) of that latter Act as
"a lease in perpetuity".
The 1962 Act provided for the automatic conversion of some
holdings under earlier Acts to holdings under that Act (585). As well,
provision was made for lessees of some agricultural holdings under
earlier Acts to apply for their conversion to holdings under the later
Act (586). The 1962 Act also contained specific provisions for the
continuation of some unconverted holdings (587). However and
leaving aside s 66(1) which permitted certain holdings, including
pastoral holdings, to be converted to stud holdings (588), pastoral
leases granted under earlier Acts were not converted, but continued by
s 4(2) of the Act and, by that subsection, deemed to have been granted
(583) By s 62, the lessee of a preferential pastoral holding was required to reside on the
holding during the first seven years of the lease or longer if a condition to that
effect was imposed by the opening notification.
(584) By s 66(1), the holder of any lease or selection under the 1962 Act could apply to
have the tenure converted to a stud holding when the subject land was used to
breed stud merino sheep or beef cattle.
(585) See, eg, s 4(2) (savings provision); s 129 (perpetual lease Prickly-pear and
perpetual lease Prickly-pear development selections converted into perpetual lease
selections); s 132 (development grazing homesteads and Prickly-pear development
grazing homesteads converted into grazing homesteads).
(586) See, eg, s 124(5) (conversion of a perpetual lease selection to an agricultural
farm).
(587) See, eg, s 124(1), (3), (4) (agricultural farms); s 130(5) (certain settlement farm
leases); s 133 (grazing selections).
(588) See note 584.
under the 1962 Act. Subject to provisos which are not presently
relevant, s 4(2) provided for their continuation in these terms:
"All leases of land ... granted ... under the repealed Acts, and
subsisting at the commencement of this Act, shall be deemed to
have been granted or issued under the provisions of this Act relating
to the tenure or class or mode of a class of tenure hereunder which
is analogous thereto and shall in all respects continue in force and
be held under and subject to this Act."
The 1910 Act was one of the repealed Acts (589).
The effect of s 4(2) was reflected in the definition of "pastoral
lease" in s 5 of the 1962 Act. That definition was as follows:
"A lease of land under and subject to Divisions I and II of Part III:
the term includes a pastoral holding, preferential pastoral holding or
pastoral development holding, the lease whereof was issued
otherwise than pursuant to Part 111."
The definition also reflected the provisions of Div I of Pt VI of the Act
which, as already mentioned, allowed for the renewal of certain leases,
including pastoral leases, prior to their expiry.
It should also be noted that the terms of the definition of "pastoral
lease" in s 5 of the 1962 Act emphasise that, as with pastoral leases
under the 1910 Act, pastoral leases granted under the later Act
conferred only the estate or interest which that Act authorised.
Unlike the 1910 Act, the 1962 Act provided for the renewal of
certain leases prior to their expiry (590). Application for early renewal
had to be considered by the Land Administration Commission, which,
pursuant to s 156(1), was required to investigate, amongst other things:
(b) the public interests, the interest of the lessee concerned, and how
best the land [might] be brought to its maximum production,
increased population [might] be sustained, and the public estate
[might] be developed;
(d) such other factors and circumstances as the Commission
deem[ed] fit and proper."
By s 157(1) of the Act, the Minister was given "absolute discretion"
(589) See s 4(1) and the Schedule to the 1962 Act.
(590) Sections 154 and 155 of the 1962 Act, which applied to settlement fann leases,
grazing selections, brigalow leases, pastoral holdings, preferential pastoral
holdings and pastoral development holdings allowed for leases to be renewed if
they had not more than ten years to run. Note that while the 1910 Act did not
provide for renewal as at the time of the Mitchellton Pastoral Leases, the Land
Acts Amendment Act 1952 (Q) (Pt III, ss 13-19) and the Land Acts and Other Acts
Amendment Act 1959 (Q) (PI VIII, ss 40-47) provided for renewal of pastoral
leases prior to expiry.
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to refuse or approve an application for early renewal and to approve
renewal "either unconditional1y or subject to such conditions as, in his
opinion, [were] calculated to develop the public estate" (see also
s 162). It was pursuant to these provisions that the Holroyd Pastoral
Lease was granted and made subject to the special conditions earlier
mentioned.
Another point of distinction between the 1910 Act and the 1962 Act
is that the 1962 Act made express provision for entry into occupation
and possession of al1 holdings under the Act. If there were
improvements on the land, the Act provided that alI selectors, lessees
(which, of course, included pastoral lessees) and purchasers were
"entitled to occupy, and [might] enter into possession" upon payment
of the prescribed or provisional value of the improvements or sooner
with the written permission of the Minister (s 231(l)). If there were no
improvements, the grantee of a pastoral lease was' 'entitled to occupy
and [might] enter into possession ... on and from the date of
acceptance of his application" (s 231(2)(b)).
The 1962 Act provided for the early surrender of leases (s 333) and
for forfeiture for various causes, including non payment of rent (s 305)
and "breach of any condition to which [the lease was] or [was]
deemed to be subject" (s 295(a)). Subsection (l) of s 299 provided
that, in the event of forfeiture or early determination, "unless in any
particular case other provision [was] made in that behalf by [the 1962]
Act, the land [should] revert to Her Majesty and become Crown land,
and [might] be dealt with under [the] Act accordingly". In that
respect, the 1962 Act corresponded with the 1910 Act. However,
s 299(2) provided:
"Forthwith upon the determination of the lease the person in
occupation of the land concerned shal1 give peaceful possession
thereof and of all improvements thereon to the [Land Commissioner
for the relevant district] or a person thereunto named by the [Land]
Commissioner, otherwise such person shal1 be a trespasser upon
Crown land and the provisions of [the] Act relating to such
trespassers shal1 apply accordingly."
Provision was made in s 372 of the 1962 Act with respect to
trespassers on reserves and Crown land in terms to much the same
effect as s 203 of the 1910 Act. A similar procedure to that specified
in s 204 of the 1910 Act for the removal of persons in unlawful
occupation of reserves and Crown land was laid down by s 373. And,
as with its counterpart under the 1910 Act, the concluding paragraph
of s 373 provided for the same procedure to be invoked by "[a] lessee
or his manager or a licensee of any land held from the Crown, or a
person ... purchasing any land from the Crown" against "any person
in unlawful occupation" of the land concerned.
Statutory conditions with respect to pastoral leases
As well as the special conditions to which reference has been made,
the Holroyd Pastoral Lease is expressed to be subject to the conditions
and provisos specified in Pt III, Div I of the 1962 Act. By s 50(2) in
that Part, the Minister might specify conditions in the notification that
land was open for lease as a pastoral holding, including conditions
with respect to boundary fencing, improvements, developmental works
and the eradication of noxious plants. Additional conditions might be
specified in the opening notification for pastoral development holdings
and preferential pastoral holdings (s 50(l)(e)-(f). See also ss 51, 52).
The Holroyd Pastoral Lease was granted in consequence of an
application for renewal under s 155 of the 1962 Act, not pursuant to an
opening notification. Thus, it is not subject to conditions which might
otherwise have attached by operation of s 50 (591).
One other provision of Pt III, Div I of the 1962 Act, namely s 61,
specified conditions applicable to leases of pastoral holdings. It
provided as to their maximum permissible term, their commencement,
and specified, in s 61(d), that "rent [should] be computed according to
the number of square miles in the lease".
In addition to the conditions attaching to leases of pastoral holdings
pursuant to the provisions of Pt III, Div I of the 1962 Act, ss 251 and
261, respectively, subjected all holdings to conditions for the
destruction of noxious weeds and Harrisia cactus. However, the
Minister was empowered by s 266 to grant exemptions from each of
those conditions if satisfied that performance would be uneconomic.
Provisions of the 1962 Act allowing for exemption from conditions
In addition to s 266 which empowered the Minister to grant
exemptions with respect to the destruction of noxious weeds and
Harrisia cactus, there were two other provisions of the 1962 Act
relevant to the performance of conditions attaching to pastoral leases.
First, s 14(2)(a) allowed that "[t]he Minister, with the approval of the
Governor in Council and the consent of the lessee, [might] delete or
vary or amend any developmental or improvement condition
(including the condition of fencing or other improvement) of a lease".
That power was subject to the qualification contained in subsection
(c), the effect of which was that the Minister could extend but not
reduce the time for performance.
The second relieving or exempting provision was that contained in
s 64(3), to which some reference has already been made. By that
subsection, "[t]he Minister, in his discretion, [might] exempt a lessee
from performing any condition of fencing imposed upon the lease of a
pastoral lease and [might] alter or cancel such exemption". The
(591) Note that in any case the opening notification pursuant to which the first Holroyd
lease was granted required only that there be payment for any improvements
already on the land.
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combined effect of the concluding paragraph of that subsection and of
s III of the Act (592) was that the exemption might be limited as to
time and circumstances and that, once granted, it could only be
cancelled or altered by the giving of six months' notice to that effect.
Specific provision was also made for relief against forfeiture,
including forfeiture of pastoral leases. Although provision was made in
s 297 for proceedings to determine whether a lease was liable to be
forfeited, an overriding discretion was reserved to the Minister in these
terms (s 297(2:
"If upon the final decision of the matter any such liability to
forfeiture is established the Minister may in his discretion -
(a) recommend to the Governor in Council that the lease be
forfeited; or
(b) waive the liability to forfeiture subject to such terms and
conditions as he thinks fit to impose upon the lessee."
Other provisions of the )962 Act relevant to the estate or interest
conferred by pastoral leases
As with the 1910 Act, the 1962 Act made provIsIOn denying the
lessees of various holdings, including the lessee of a pastoral holding,
the right, without prior written permission, to destroy any tree on the
land the subject of the lease (593). There was no provision in the 1962
Act akin to ss 199 and 200 of the 1910 Act which allowed for others
to be licensed to take timber from land held under a pastoral lease. At
all relevant times, however, the Forestry Act 1959 (Q) provided for the
issue of licenses to get forest products from various holdings,
including pastoral holdings, and conferred full power of entry upon
persons so licensed (594).
Finally, it should be noted that persons travelling stock on a stock
route passing through a pastoral lease were entitled to depasture the
stock on the land on the same terms and conditions as those applicable
under the 1910 Act (595).
The interest conferred by the Holroyd Pastoral Lease
The differences between the Mitchellton Pastoral Leases and the
Holroyd Pastoral Lease and between the 1910 and the 1962 Acts
provide some support for the view that the Holroyd Pastoral Lease is a
(592) Section 64(3) provided that s III applied to that section.
(593) Section 250. In general tenns, that section operated with respect to agricultural
selections and perpetual country leases, during their first two years, and pastoral
leases, brigalow leases, grazing selections, settlement farm leases and certain
licenses for their entire tenn.
(594) See ss 55 and 57 of the Forestry Act 1959 (Q). Note that s 44 of the Forestry Act
1959 (Q) specifically provided that the lease of any Crown holding, which
included a holding granted under the 1962 Act, was subject to the provisions of
PI VI of the Forestry Act (ss 44-61).
(595) Section 375(1) of the 1962 Act, s 205 of the 1910 Act.
true lease, the grant of which conferred a right of exclusive possession
on the lessees. Perhaps the most significant difference is to be seen in
the Holroyd Pastoral Lease, itself, which, as already mentioned, is in
the prescribed fonn and, in accordance with that fonn, is not expressed
to be granted solely for pastoral purposes.
There is also the consideration that the 1962 Act, unlike the 1910
Act, provided for lessees of pastoral holdings, along with selectors, the
lessees of other holdings and purchasers of land under the Act to
"occupy and ... take possession" ofland. This does not establish that
a pastoral lease conferred a right of exclusive possession; on the other
hand, the contrary proposition draws no support from the absence of
any provision authorising occupation or possession, as is the case with
the 1910 Act.
Another difference between the 1910 and the 1962 Acts which
provides a measure of support for the view that the lease of a pastoral
holding under that latter Act confers a right of exclusive possession is
that, as with other holdings under the 1962 Act, the lessee of a pastoral
holding was required, on forfeiture or early tennination, to give
possession to the Crown. Notwithstanding the tenns of s 299(1) which,
in the event of forfeiture or early tennination of a lease, assimilate the
land involved to what, for convenience, may be referred to as
unalienated Crown land, the terms of s 299(2), requiring that
possession be given to the Crown, point in favour of a statutory
interest on forfeiture or early tennination extending beyond radical
title. Again, if that is the effect of s 299(2), it does not establish that a
pastoral lease conferred a right of exclusive possession and accord-
ingly does not establish the existence of a traditional leasehold
estate (596); neither, however, does it provide support for the contrary
view, as did the absence of a reversionary interest extending beyond
radical title in the case of the Mitchellton Pastoral Leases.
Other provisions which are capable of giving some support to the
view that a lease of pastoral holding under the 1962 Act conferred a
right of exclusive possession are those allowing for a grant to be made
subject to conditions for the erection of boundary fences and the
carrying out of improvements and developmental works. As earlier
indicated, such conditions might be imposed pursuant to a requirement
to that effect in the opening notification (s 50(2)(c)(i), (iii, or, as
here, pursuant to conditions imposed by the Minister on renewal prior
to expiry. And, of course, the question of early renewal in the case of
pastoral and other renewable leases, was dependent on a consideration,
amongst other things, of "how best the land [might] be brought to its
maximum production, increased population [might] be sustained, and
the public estate ... developed" (s 156(1)(b. Consideration of those
(596) As explained with respect to the Mitchellton leases, no reversion can arise at
conunon law unless a leasehold estate exists,
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matters might well result in conditions suggestive of a right of
exclusive possession.
Certainly, improvement and developmental conditions for the
construction of buildings and improvements such as the manager's
residence and airstrip required by the Holroyd Pastoral Lease might
suggest a right of exclusive possession. And as there is no basis for
distinguishing as to the estate or interest granted with respect to that
part of the land to be improved and that to be left unimproved,
conditions of that kind might suggest a right of exclusive possession
over the whole land. Similarly, as there is no statutory basis for
distinguishing between pastoral holdings made subject to improvement
or developmental conditions and those not subject to conditions of that
kind, the possibility that such conditions might be imposed is capable
of suggesting that aH pastoral leases conferred a right of exclusive
possession.
However, it would be wrong, in my view, to place great weight on
the provisions of the 1962 Act authorising the imposition of
improvement and developmental conditions. After aH, other provisions
of the Act conferred discretionary powers on the Minister to delete,
vary or amend those conditions, to exempt lessees from performance
of fencing conditions and ultimately, to relieve against forfeiture.
Moreover, it cannot be said that the conditions which might be
imposed were of such a nature that they necessitated a right of
exclusive possession. After all, the ordinary criminal and civil laws
were and are available to protect against wilful and negligent damage
to property. 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.
In the light of the principle of construction identified and explained
in Mabo (No 2J and in light of the long statutory history of pastoral
leases, clear words are plainly required before the provisions of the
1962 Act dealing with pastoral tenures can be construed as changing
the essential nature of pastoral leases by the introduction, under the
same name, of a different tenure conferring a right of exclusive
possession. The matters to which reference has been made fall short of
a clear indication of an intention to that effect. Rather, s 4(2) of the
1962 Act makes it plain that the pastoral tenures permitted by that Act
were, and were intended to be, "analogous" with those permitted by
earlier Acts, including the 1910 Act. Given these considerations, the
provisions of the 1962 Act concerned with leases of pastoral holdings
are not to be construed as creating leases which conferred a right of
exclusive possession and, thus, a right to exclude native title holders
from their traditional lands.
It foHows that the Holroyd Pastoral Lease did not confer a right of
exclusive possession. The questions whether performance of the
conditions attached to the Holroyd Pastoral Lease effected any
impainnent or extinguishment of native title rights and, if so, to what
extent are questions of fact and are to be detennined in the light of the
evidence led on the further hearing of this matter in the Federal Court.
Conclusion with respect to the Holroyd Pastoral Lease: answer to
question 18
Again, the conclusion that, as a matter of statutory construction, a
pastoral lease under the 1962 Act did not confer a right of exclusive
possession makes it unnecessary to consider the arguments with
respect to fiduciary duties. And that conclusion also has the
consequence that Drummond J was in error in answering question
IB(b) as he did. Instead, it should have been answered "No". As with
questions Ic(c) and (d), questions IB(C) and (d) do not arise. However,
in the light of these reasons, I would answer sub-question IB(d)
"No".
Orders
I agree with the orders proposed by Toohey 1.
McHUGH 1. I agree with the judgment of Brennan CJ In these
matters and with the orders which he proposes.
GUMMOW J.
Introduction
On 30 June 1993, that is to say before the enactment of the Native
Title Act 1993 (Cth) (597), the Wik Peoples instituted in the Federal
Court of Australia a proceeding in which they sought to establish the
existence of certain native title rights over an area of land in North
Queensland. The State of Queensland was first respondent and the
Commonwealth of Australia second respondent. The Thayorre People
were later joined as respondents. They cross-claimed, seeking similar
relief in respect of lands that, in part, overlapped those the subject of
the claim of the Wik Peoples.
The litigation stands outside the system for the detennination of
native title claims established by the Native Title Act. However, it
raises issues which may have importance for the operation of that
statute. The expressions "native title" and "native title rights and
interests" are defined in s 223(1) thereof as meaning communal, group
or individual rights and interests of Aboriginal peoples or Torres Strait
Islanders in relation to land or waters where, among other things, "the
rights and interests are recognised by the common law of Australia".
If acts done before the commencement on 31 October 1975 of the
Racial Discrimination Act 1975 (Cth) were effective to extinguish or
(597) The substantive provisions of the Native Tille Act commenced on I January 1994.
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impair native title, the Native Title Act does not undo that result. In the
joint judgment of six members of this Court in Western Australia v
The Commonwealth (the Native Title Act Case) (598), it was said:
"An act which was whol1y valid when it was done and which
was effective then to extinguish or impair native title is unaffected
by the Native Title Act. Such an act neither needs nor is given force
and effect by the Act."
The present litigation is not concerned solely with steps taken under
the prerogative. Prerogative powers were supplanted in Queensland by
statute as a result of constitutional development in the second half of
the nineteenth century. As wil1 appear in the course of these reasons,
the issues on these appeals turn upon the proper construction of the
Land Act 1910 (Q) (the 1910 Act) ,\nd the Land Act 1962 (Q) (the
1962 Act), and upon the terms of the grants of pastoral leases
thereunder. The 1962 Act repealed the 1910 Act. The 1962 Act has
now been repealed by the Land Act 1994 (Q).
I approach these issues of construction upon the assumption,
adverse to the Wik Peoples and the Thayorre People, that there does
not exist and did not exist when the 1910 Act and the 1962 Act were
enacted, any fiduciary relationship between them and the State of
Queensland. The Wik Peoples and the Thayorre People submitted that
such relationships existed and the duties arising thereunder militated
against there being any legislative intention to extinguish native title. I
put fiduciary duty issues to one side.
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 (599).
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 (600). 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
(598) (1995) 183 CLR 373 at 454.
(599) Native Title Act Case (1995) 183 CLR 373 at 422-423, 452-453. See also Mabo v
Queensland (1988) 166 CLR 186 at 213-214, and, in Canada, R v Sparro.... [1990]
I SCR 1075 at 1097-1099; (1990) 70 DLR (4th) 385 at 400-401; R v Van der Peet
[1996] 2 SCR 507 at 537-538, 585-586, 644; (1996) 137 DLR (4th) 289 at 302-
303,337,385.
(600) Mabo v Queensland {No 2J (1992) 175 CLR I at68; Native Title Act Case (1995)
183 CLR 373 at 422.
apparent to a court (601). 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 (602). As Holmes put it,
"[w]e do not inquire what the legislature meant; we ask only what the
statute means" (603). It will be necessary later in these reasons to
consider the particular criteria by which the manifestation of
legislative intention is to be assessed in this case.
The Federal Court proceedings
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 (604). 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 (605). 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 evi-
dence (606).
It is at this threshold that thcsc appeals present a significant
consideration. There has been no trial of issues going to the
establishment of native title and the ascertainment of its content. Yet
the effect of the decision at first instance was to foreclose the occasion
for such a trial and to rule against the claims of the Wik Peoples and
the Thayorre People. This state of affairs has come about as follows.
A Judge of the Federal Court (Drummond J) ordered (607) a
number of questions for separate decision (608). Questions lB, lc,
4 and 5 and the answers given by Drummond J are set out in the
judgment of Brennan CJ. The Thayorre People were granted leave to
appeal to the Full Court of the Federal Court against the determination
of Question lc. This related to two instruments for a grant of pastoral
leases (the "Mitchellton Pastoral Leases") dated respectively 25 May
1915 and 14 February 1919 and issued pursuant to the 1910 Act (609).
(601) Posner, The Problems of Jurisprudence (1990), pp 276-277.
(602) Native Title Act Case (1995) 183 CLR 373 at 423.
(603) Holmes, "The Theory of Legal Interpretation", Harvard Law Review, vol 12
(1899) 417, at p419. See also Re Bolton; Ex parte Beane (1987) 162 CLR 514
at 518,532; Brennan v Comcare (1994) 50 FCR 555 at 572-575.
(604) Mabo [No 2J (1992) 175 CLR I at 66-67.
(605) Mabo [No 2J (1992) 175 CLR I at 89.
(606) Mabo [No 2J (1992) 175 CLR I at 58.
(607) Pursuant to 0 29, r 2(a) of the Federal Court Rules.
(609) The first of these pastoral leases was issued under the 1910 Act as amended by the
Land Act Amendment Act 1913 (Q) and the Land Act Amendment Act 1914 (Q).
The second was issued under the 1910 Act as further amended by the Land Act
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Each pastoral lease was for a tenn of thirty years. However, the first
was forfeited in 1918 for non-payment of rent and the second was
surrendered in 1921. There was no entry into occupation by the
grantees of either of these pastoral leases. They were for an area of
535 square miles, bounded partly by the Gulf of Carpentaria, the
Mitchell River and the Edward River. In 1921 the Chief Protector of
Aboriginals reported that "there are about 300 natives roaming this
country". In that year, by Order in Council made under the power
conferred by s 180 of the 1910 Act, the land in question was reserved
and set apart for use of the Aboriginal inhabitants of the State. The
creation of such a reserve did not extinguish any native title which
then still subsisted (610).
The Wik Peoples obtained leave to appeal to the Full Federal Court,
not only in respect of the answer to Question IC but in respect of
Question IB. This concerned a lease of an area of 2,830 km
2
(partly
bounded by the Holroyd River) as a pastoral holding under the 1962
Act (the Holroyd River Pastoral Lease). The carrying capacity in fair
seasons was one beast per 60 acres. The pastoral lease was granted,
with effect for thirty years from I January 1974, by instrument dated
27 March 1975 (some seven months before the commencement of the
Racial Discrimination Act) and is still current (611).
Leave also was granted to the Wik Peoples to appeal to the Full
Court in respect of the answers to Questions 4 and 5. These concerned
certain claims against the State of Queensland, the first respondent;
Comalco Aluminium Ltd (Comalco), the fourth respondent; and
Aluminium Pechiney Holdings Pty Ltd (Pechiney), the fifth
respondent. That branch of the litigation involves discrete issues. I
agree it should be dealt with as proposed by Kirby J and for the
reasons given by his Honour.
The Questions concerning the Holroyd River Pastoral Lease and the
Mitchellton Pastoral Leases were so framed as to ask whether, if at
any material time any native title existed in respect of the land the
subject of those pastoral leases, the grant of those pastoral leases
necessarily extinguished all incidents thereof. The fonn in which the
issue is presented, namely necessary extinguishment by grant, is
significant. The primary judge answered the questions in the
(609) cont
Amendment Act 1916 (Q), the Land Act Amendment Act 1917 (Q), and the Land
Acts Amendment Act 1918 (Q). The 1910 Act will be considered in these reasons
in the form it took at the respective times for the Mitchellton Pastoral Leases.
(610) Mabo (No 2] (1992) 175 CLR I at 66-67.
(611) An earlier lease for a term expiring I October 1974 had been granted in 1945
under the 1910 Act. The effect of the 1962 Act (s 4(2 was to deem the earlier
lease to have been granted as a pastoral lease under PI III, Div I of the new
legislation, this being '"the tenure or class or mode of a class of tenure" which
was '"analogous" to that under the 1910 Act. Pan VI, Div I of the 1962 Act
provided for "renewal" of such leases by the issue of a new lease and surrender
of the subsisting lease (s 160).
affirmative as to the Holroyd River Pastoral Lease and the first of the
Mitchellton Pastoral Leases. However, as I have indicated, this was
without any prior determination as to whether, in fact, any native title
was in existence at the respective times of grant of those pastoral
leases.
By orders of this Court made under s 40 of the Judiciary Act 1903
(Cth), each of the pending appeals to the Full Federal Court by the
Wik Peoples and the Thayorre People was removed into this Court.
My conclusion is that the primary judge erred in determining that
the grants of pastoral lease under the 1910 Act and the 1962 Act
necessarily had the effect of extinguishing all incidents of any native
title which might have then subsisted in the Wik Peoples or the
Thayorre People. Rather, his Honour should have determined that none
of these grants clearly, plainly and distinctly authorised activities and
other enjoyment of the land which necessarily were inconsistent with
the continued existence of any of the incidents of native title which
could have been subsisting at the time of these grants. This would
leave for future determination at trial the questions whether such
native title subsisted at material times and still subsists and, if so, the
incidents of such native title.
The legal framework
In asking "what the statute means" (612) of any provision of the
1910 Act or the 1962 Act, regard is to be had not only to the other
provisions of the same statute but also to such matters as other statutes
in pari materia and the existing state of the law (613). The phrase "the
existing state of the law" embraces the then understanding of the
common law. In this way there is discerned the state of affairs for the
remedy or establishment of which the statute was designed (614).
At the enactment of the 1910 Act as at that of the 1962 Act, a basic
principle of land titles in Australia was that identified, with some
reference to New South Wales colonial history before the establish-
ment of self-government, by Windeyer J in Randwick Corporation v
Rutledge. His Honour said (615):
"On the first settlement of New South Wales (then comprising the
whole of eastern Australia), all the land in the colony became in law
vested in the Crown. The early Governors had express powers under
their commissions to make grants of land. The principles of English
(612) Holmes, "The Theory of Legal Interpretation", Harvard Law Review, vol 12
(1899) 417, at p 419.
(613) Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461,
cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157
CLR 309 at312, 315.
(614) Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461.
See also the Native Title Act Case (1995) 183 CLR 373 at 452.
(615) Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71.
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real property law, with socage tenure as the basis, were introduced
into the colony from the beginning - all lands of the territory lying
in the grant of the Crown, and until granted forming a royal
demesne. The colonial Act, 6 Wm IV No 16 (1836), recited in its
preamble that the Governors by their commissions under the Great
Seal had authority 'to grant and dispose of the waste lands' - the
purpose of the Act being simply to validate grants which had been
made in the names of the Governors instead of in the name of the
Sovereign. And when in 1847 a bold argument, which then had a
political flavour, challenged the right of the Crown, that was to say
of the Home Government, to dispose of land in the colony, it was as
a legal proposition firmly and finally disposed of by Sir Alfred
Stephen CJ (616)."
Stephen CJ had emphasised in Brown that, at the time of making a
grant of land to a subject, the Crown must be presumed to have a title
to that land and that this original title provides the foundation and
source of all other titles. Estates in land in the colony were held in free
and common socage. They were not allodial, that is to say, they were
not a species of estate which existed outside the feudal system and
were held independently and not of any superior. All interests in land
in New South Wales had been granted directly by the Crown. In
contrast to the tenurial system as it had been applied in England, in the
colony estates were not held by any intermediate or mesne lord.
Attorney-General v Brown concerned a grant made in 1840. Until as
late as 1842 there was no statutory restriction upon the alienation by
the Crown of lands in the Australian colonies. The phrase "waste
lands" had as its primary meaning lands which were uncultivated
rather than profitless (617). The management and control of colonial
waste lands (ie, lands not yet granted from the Crown in fee simple, or
for an estate in freehold, or for a term of years, and not dedicated and
set apart for some public use (618)) was by executive fiat (619).
Until the mid-nineteenth century Imperial policy with respect to
Australia was opposed to Colonial control in such matters. There was
no invariable rule that a colony enjoyed its own land revenue (620).
To the contrary, the Imperial authorities saw "unsettled" land as the
source of revenue to recoup the outlays in the operation of the colonial
administrations and to provide for further emigration from the United
Kingdom and other development. After 1840, the Colonial Secretary
was advised by the Colonial Lands and Emigration Commissioners. In
(616) Attorney-General v Brown (1847) 2 SCR (NSW) App 30; 1 Legge Rep 312.
(617) Wildash v Brosnan (1870) 1 QCLLR 17 at 18.
(618) From the definition of "waste lands of the [C]rown" in s 23 of the Al/stralian
Colonies, Waste Lands Act 1842 (Imp) (5 & 6 Viet e 36).
(619) Campbell, "Crown Land Grants: Fonn and Validity", Al/stralian Law JOl/rnal.
yol40 (1966) 35.
(620) cf In re Natl/ral Resol/rces (Saskatchewan) [1932] AC 28 at 38.
1842 this body received by statute (621) powers with respect to the
administration of the proceeds of sale of waste lands. Gross proceeds
of such sales were to be applied to the' 'public Service" of the colony
in which the land was situated and one-half was to be appropriated to
the purposes of emigration (622). An element of representative
government was provided by the Australian Constitutions Act 1842
(Imp) (623), but s 29 excluded from the competence of the New South
Wales Legislative Council any law which interfered in any manner
with the sale of Crown lands in the colony or with the revenue arising
therefrom (624).
The Australian Constitutions Act did not provide a constitutional
settlement of any duration. Queensland was separated from New South
Wales in 1859 and with the arrival of representative government the
Imperial authorities relinquished control over Crown lands in these
colonies. Imperial statute, s 2 of the New South Wales Constitution Act
1855 (Imp) (625), vested in the New South Wales legislature the entire
management and control of the waste lands belonging to the Crown in
New South Wales and the power of appropriation of the gross
proceeds of the sales of any such lands (626). Then s 30 of the
Constitution Act 1867 (Q) (the 1867 Act) (627) provided that it was to
be lawful for the legislature of that colony to make laws for regulating
the sale, letting, disposal and occupation of waste lands of the Crown
within Queensland. With exceptions not presently material, s 40 stated:
"The entire management and control of the waste lands belonging
to the Crown in the said Colony of Queensland and also the
appropriation of the gross proceeds of the sales of such lands and of
all other proceeds and revenues of the same from whatever source
arising within the said colony including all royalties mines and
minerals shall be vested in the Legislature of the said colony.
"
The result was to withdraw from the Crown, whether represented by
the Imperial authorities or by the Executive Government of
Queensland, significant elements of the prerogative. The management
and control of waste lands in Queensland was vested in the legislature
(621) Australian Colonies, Waste Lands Act 1842 (Imp) (5 & 6 Viet c 36). s 16.
(622) Australian Colonies, Waste Lands Act 1842 (Imp) (5 & 6 Viet c 36), s 19.
(623) 5 & 6 Viet c 76.
(624) In England, the prerogative to alienate lands of the Crown had been restricted to
the granting of certain leases by the Crown Lands Act 1702 (Eng) (I Anne c I).
The Crown Lands Act 1829 (Eng) inaugurated the modem system whereby the
Crown Estate Commissioners lease Crown lands in accordance with statute:
Halsbury's Laws of England (4th ed) (1974), vol 8, pars 1451-1475.
(625) 18 & 19 Viet c 54.
(626) Blackwood v London Chartered Bank of Australia (1874) LR 5 PC 92 at 112-113.
(627) The sources of power of the Queensland legislature to pass this statute were
identified in Cooper v Commissioner of Income Tax (Q) (1907) 4 CLR 1304
at 1311-1313. 1326-1329.
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and any authority of the Crown in that respect had to be derived from
statute (628).
There followed the enactment in Queensland and elsewhere of
statutes designed to provide for conditions unknown in England and to
meet local wants in a fashion unprovided for in England. First, there
was the growth of a statutory system of title by registration, identified
by the phrase "the Torrens system", whereby statute makes the
certificate of title conclusive evidence of its particulars and protects
the registered proprietor from actions to recover the land, except in
specifically described cases (629).
Then there was the creation by statute of what Griffith CJ called
"new forms of tenure" (630). This legislative activity illustrated the
general propositions that statute may create interests in property which
are unknown to the common law (631) and that "there is nothing
higher among legal rights than a right created by statute" (632). To
these new forms of tenure the terms "lease" and "licence" applied in
a new and generic sense (633). The legislation teemed with
"proverbial incongruities" (634) and Higgins J used the term "quasi-
Crown lands" (635) to identify those areas as to which there had been
conferred a tenure short of a fee simple. Of the operation of that
system in New South Wales in 1905, that is to say shortly before the
enactment of the 1910 statute in Queensland, A C Millard and
G W Millard wrote (636):
"The whole of the numerous and elaborate provisions of the Acts
for the alienation and occupation of Crown lands are examples of
the legislation which has been necessary to meet the peculiar
conditions and wants of the colony. Nothing corresponding to the
body of laws thereby created is found in English law, there being
(628) Australian Alliance Assurance Co Ltd v Goodwyn (Insurance Commissioner)
[1916] St R Qd 225 at 253-254; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC
520 at 533; Mabo [No 2[ (1992) 175 CLR I at 63-64.
(629) Breskvar v Wall (1971) 126 CLR 376 at 384, where this description was applied
by Barwick CJ to the Real Property Acts 1861-1963 (Q).
(630) Stewart v Williams (1914) 18 CLR 381 at 390.
(631) Sevenoaks Maidstone & Tunbridge Railway Co v London Chatham & Dover
RailH.'ay Co (1879) II Ch D 625 at 635; Duncan v Queensland (1916) 22 CLR
556 at 578.
(632) Blackwood v London Chartered Bank of Australia (1874) LR 5 PC 92 at 110.
(634) Stewart v Williams (1914) 18 CLR 381 at 406, per Isaacs J, speaking of the New
South Wales legislation.
(635) Hegarty v Ellis (1908) 6 CLR 264 at 281, speaking of the legislation in Victoria.
(636) The Law of Real Property in New South Wales (1905), pp 5-6. Comparable
legislative ingenuity occurred with mining law: Wade v New South Wales Rutile
Mining Co Pty Ltd (1969) 121 CLR 177 at 186-195. In 1891, it was said that "the
whole of our mining law is founded on statutes for which no precedent existed in
any other country": Armstrong, A Treatise on the Law of Gold-Mining in
Australia and New Zealand, 2nd ed (1901), p vi, from the Preface to the 1st ed
(1891).
nothing in England analogous to the vast area of unoccupied lands
in this colony, of which the Crown is the nominal, and the public
the real owner, the settlement of which is necessary to the welfare
and progress of the country."
The comparable situation in Queensland later was described as
follows (637):
"The Crown leasehold principle, introduced during the imperial
period as a device in favour of the squatters, was developed in
(literally) scores of Queensland statutes after the Separation in 1859.
The undoubted constitutional right of the Queensland Parliament to
create whatever tenures it thinks fit and to attach to them whatever
incidents it thinks fit, has been exercised actively. In Queensland, as
Millard has correctly stated in respect of New South Wales, the
result is 'a bewildering multiplicity of tenures - many of them
exhibit only trifling differences in details' (638).
Gone is the simplicity of the law concerning modern English
tenures; gone is the senile impotence of the emasculated tenurial
incidents of modern English Land Law. In Queensland, as in the rest
of Australia, we are in the middle of a period in which the
complexity and multiplicity of the law of Crown tenures beggars
comparison unless we go back to the early mediaeval period of
English Land Law."
Throughout this period it was assumed that the powers of the
colonial and then of the State legislatures to create whatever tenures
they thought fit, and with the attachment of such incidents as statute
provided, were exercised in an environment where the local common
law recognised no allodial species of estate which was held
independently of any grant by the Executive Government or of any
grant by or pursuant to statute. That this was a false assumption was
demonstrated in 1992 by the decision of this Court in Mabo
[No 2J (639).
That decision confirmed native title rights to certain lands in two
Torres Strait islands which had been annexed to the colony of
Queensland in 1879 (640). On remitter to the Supreme Court of
Queensland, findings of fact were made concerning the occupation of
the Murray Islands by the Menam People, Melanesians who probably
came to settle the islands from Papua New Guinea (641). This Court
granted declaratory relief as to the subsistence of the native title of the
Meriam people (642). Nevertheless, Mabo [No 2J must be taken,
(637) Fry, Freehold and Lease/wid Tenancies in Queensland Land (1946), P 29.
(638) Millard on Real Property (NSW), 4th ed, (1930), P 474.
(639) (1992) 175 CLR I.
(640) See WaCi1ndo v The Commol/wealth (1981) 148 CLR I at II.
(641) Mabo [No 2J (1992) 175 CLR I at 17-25.
(642) Mabo [No 2J (1992) 175 CLR I at 217.
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particularly since the further decisions wi th respect to Western
Australia in the Native Title Act Case (643), to establish and entrench
in the common law of Australia broader and more fundamental
propositions. They include the holding that:
"the common law of Australia recognises a form of native title that
reflects the entitlement of the indigenous inhabitants of Australia, in
accordance with their laws and customs, to their traditional lands."
This is the formulation in the Preamble to the Native Title Act, and
thus supplies a foundation upon which the Parliament enacted the
Native Title Act. The Preamble also recites the holding in Mabo [No 2J
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."
The extinguishment of existing native title readily is seen as a
consequence of a grant in fee simple. That is because the fee simple,
as the largest estate known to the common law, confers the widest
powers of enjoyment in respect of all the advantages to be derived
from the land itself and from anything found upon it. No different
result may follow where what is asserted against native title is a lease
for a term. In particular, subject to the constraints imposed by the law
of waste, at common law the lessee ordinarily has powers of use and
enjoyment with respect to certain profits or produce derived from the
land. Under the common law as developed in England, this included
game and other ferae naturae captured within the limits of the
land (644) and a general property in underwood and trees (645).
In these appeals, the fundamental issue does not concern the
extinguishment of native title by grant of a fee simple or of a leasehold
interest as known to the common law. Rather, it concerns the impact
upon native title of statute and of sui generis interests created
thereunder. The dispute is whether the grants of the Mitchellton
Pastoral Leases, pursuant to the 1910 Act, and of the Holroyd River
Pastoral Lease, pursuant to the 1962 Act, were, in the sense of the
Preamble to the Native Title Act, valid government Acts inconsistent
with the continued existence of any native title rights and ir.terests
which subsisted when the grants were made. Those statutory grants
(643) (1995) 183 CLR 373.
(644) Falkland Islands Co v The Queen (1863) 2 Moore NS 266 at 274 [15 ER 902 at
905]; Halsbury'S Laws of England, 4th ed, vol 27(1) Reissue, par 137. A
provision in a lease expressed to reserve such rights to the landlord operated not
as a true reservation but as a regrant by the lessee to the lessor: Wickham v
Hawker (1840) 7 M & W 63 at 76 [151 ER 679 at 685]; Mason v Clarke [1955]
AC 778 at 786.
(645) But excluding what the common law regarded as "timber": Halsbury's Laws of
England, 4th ed, vol 27(1) Reissue, pars 157-160.
were not of any freehold estate, being, indeed, grants of interests that
were sui generis.
English land law
Traditional concepts of English land law, although radically affected
in their country of origin by the Law of Property Act 1925 (UK), may
still exert in this country a fascination beyond their utility in
instruction for the task at hand. So much became apparent as
submissions were developed on the hearing of these appeals. The task
at hand involves an appreciation of the significance of the unique
developments, not only in the common law, but also in statute, which
mark the law of real property in Australia, with particular reference to
Queensland. I have referred above to some of these developments.
There also is the need to adjust ingrained habits of thought and
understanding to what, since 1992, must be accepted as the common
law of Australia.
Further, those habits of thought and understanding may have lacked
a broad appreciation of English common law itself. For example, there
is no particular reason to be drawn from English land law which
renders it anomalous to accommodate in Australian land law notions
of communal title which confer usufructuary rights. There are
recognised in England rights of common which depend for their
establishment upon prescription and custom. An example is the
common of pasture in gross enforceable by action by one commoner
on behalf of that commoner and the other commoners (646).
Moreover, the extinguishment of the rights of commoners may be
effected by statute. In the century before the enactment in England of
the Inclosure Act 1845 (UK) (647), nearly 4,000 private inclosure Acts
had been passed (648).
Nor, in a system where, subject to statute, land ownership depends
upon principles derived from the English common law is there any
necessary conceptual difficulty in accommodating allodial to tenurial
titles. The point was made as follows by Brennan J in Mabo
[No 2J (649);
"Nor is it necessary to the structure of our legal system to refuse
recognition to the rights and interests in land of the indigenous
(646) Halsbury's Laws (if England, 1st ed, vol 4, "Commons and Rights of Common",
par 1104. See also Halsbury's Laws of England, 4th ed, vol 6 Reissue,
"Commons", par 564; Holmes, Notes to Kent's Commentaries, reprinted in
Novick, The Collected Works of Justice Holmes (1995), vol 2, pp 410-415;
Simpson, A History of the Land Law, 2nd ed (1986), pp 107-108.
(647) 8 & 9 Vict c 118. See Simpson, A History of the Land Law, 2nd ed (1986),
pp 261-262; Cornish and Clark, Law and Society in England 1750-1950 (1989),
pp 137-141.
(648) Halsbury's Laws of England, 1st ed, vol 4, "Common and Rights of Common",
par 1146.
(649) (1992) 175 CLR I at 48-49.
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inhabitants. The doctrine of tenure applies to every Crown grant of
an interest in land, but not to rights and interests which do not owe
their existence to a Crown grant. The English legal system
accommodated the recognition of rights and interests derived from
occupation of land in a territory over which sovereignty was
acquired by conquest without the necessity of a Crown grant."
Blackstone contrasted as follows the term "allodial" with the term
"fee" (650):
"The true meaning of the word fee (feodum) is the same with that
of feud or fief, and in its original sense it is taken in
contradistinction to allodium; which latter the writers on this subject
define to be every man's own land, which he possesseth merely in
his own right, without owing any rent or service to any superior.
This is property in its highest degree; and the owner thereof hath
absolutum et directum dominium, and therefore is said to be seised
thereof absolutely in dominico suo, in his own demesne. But
feodum, or fee, is that which is held of some superior, on condition
of rendering him service; in which superior the ultimate property of
the land resides."
In Blackstone's time, it was accepted that allodial titles preceded the
development of the feudal system after the Norman Conquest.
In the same period in which the existence of allodial title was denied
to the colony of New South Wales by the decision in Brown, it was re-
emerging elsewhere in the common law world. Quite apart from the
treatment in the United States of native title, the American Revolution
was followed in several of the States by legislative repudiation of the
tenurial system as the ultimate root of real property title. For example,
in New York the legislature abolished all feudal tenures of every
description, with all their incidents, and declared that all lands within
that State were allodial (651). Of the developments in the United
States, Chancellor Kent wrote in 1828 (652):
"Thus, by one of those singular revolutions incident to human
affairs, allodial estates, once universal in Europe, and then almost
universally exchanged for feudal tenures, have now, after the lapse
of many centuries, regained their primitive estimation in the minds
of freemen."
(650) Blackstone, Commentaries on the Laws o(England, 17th ed, (1830), vol 2, p 104.
(651) Kavanaugh v Cohoes Power & Light Corporation (1921) 187 NYS 216 at 236-
237; Gray, The Rule Against Perpetuities, 4th ed (1942), 23.
(652) Kent, Commentaries on American Law (1828), vol 3, p 412. For the views of
Jefferson and John Adams and their influence upon constitutional theory in the
United States see Edgeworth, "Tenure, Allodialism and Indigenous Rights at
Common Law: English, United States and Australian Land Law Compared after
Mabo v Queensland", Anglo-American Law Review, vol 23 (1994) 397, at
pp 399-403.
The significance of Mabo [No 2J
In this decision, the Court declared the content of the common law
upon a particular view which now was taken of past historical events.
The significance this has for common law techniques of adjudication
may be seen in the form taken by the submissions on the present
appeals. The first matter of significance concerns what is sometimes
identified as the declaratory theory of the common law. The second is
related to the first. It concerns the meaning to be given, when
interpreting statutes such as the 1910 Act and the 1962 Act, to the
phrase, referred to earlier in these reasons, "the existing state of the
law".
There have been few adherents in recent times to a declaratory
theory in an absolute form. For one thing, the principles and doctrines
of equity were never "like the rules of the Common Law, supposed to
have been established from time immemorial"; rather, they were
"established from time to time - altered, improved, and refined from
time to time" (653). For another, to use the words of Windeyer J,
"[I]aw is to be accommodated to changing facts" (654). Perhaps the
general understanding (with its emphasis upon the evolutionary and
the functional (655 was expressed by Lord Radcliffe in 1956 in his
speech in Lister v Romford lee & Cold Storage Co Ltd (656):
"No one really doubts that the common law is a body of law which
develops in process of time in response to the developments of the
society in which it rules. Its movement may not be perceptible at
any distinct point of time, nor can we always say how it gets from
one point to another; but I do not think that, for all that, we need
abandon the conviction of Galileo that somehow, by some means,
there is a movement that takes place."
Here is a broad vision of gradual change by judicial decision,
expressive of improvement by consensus, and of continuity rather than
rupture. Yet much of the common law is subjected to statutory
modification, often drastic. The task of the courts then is to construe
that statutory change to the common law, employing common law
methods and techniques of interpretation and adjudication (657).
Movement also may plainly be perceptible, and there may be an
explicit change of direction, where, in the perception of appellate
(653) In re Hallett's Estate (1880) 13 Ch D 696 at 710, per Jessel MR.
(654) Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267.
(655) cf Gordon, "Critical Legal Histories", Stanj(Jrd Law Review, vol 36 (1984) 57, at
pp 63-65.
(656) [19571 AC 555 at 591-592.
(657) An example is the consideration of the abolition of the rule in Brinsmead v
Harrison (1871) LR 7 CP 547, by s 5(1) of the Law Reform (Miscellaneous
Provisions) Act 1946 (NSW), in XL Petroleum (NSW) Pty Ltd v Caltex Oil
(Australia) Pty Ltd (1985) 155 CLR 448. See also, in this respect, Thompson v
Australian Capital Television Pty Ltd (1996) 71 ALJR 131; 141 ALR I.
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courts, a previously understood principle of the common law has
become ill adapted to modern circumstances. The point was made as
follows by Mason J in State Government Insurance Commission v
Trigwell (658):
"If it should emerge that a specific common law rule was based on
the existence of particular conditions or circumstances, whether
social or economic, and that they have undergone a radical change,
then in a simple or clear case the court may be justified in moulding
the rule to meet the new conditions and circumstances. But there are
very powerful reasons why the court should be reluctant to engage
in such an exercise. The court is neither a legislature nor a law
reform agency." (659)
Again, it may emerge that the rationale of a particular cause of
action is the product of a procedural fiction (eg, an implied promise to
pay) which should no longer be supported after the demise of the old
forms of action (660). In those cases, the perceived reason for change
stems from alterations in the legal system itself. The procedural
operation of the Judicature system may produce similar results (661).
More simply, upon analysis it may appear that a particular principle
(eg, as to the irrecoverability of payments made under a mistake of
law) rests upon a dubious foundation in the case law which has not
been accepted in this Court (662).
Mabo [No 2J was not such a decision. Nor did it rest upon the
rejection of a particular common law rule by reason of its basis in
particular conditions or circumstances which, whilst once compelling,
since have become ill adapted to modern circumstances. Rather, the
gist of Mabo [No 2J lay in the holding that the long understood refusal
in Australia to accommodate within the common law concepts of
native title rested upon past assumptions of historical fact, now shown
then to have been false.
Those assumptions had been made within a particular legal
framework which had been developed over a long period. The effect
of the British Settlements Act 1887 (Imp) was to empower the Crown
to make laws and establish courts not only for possessions acquired by
cession or conquest and which lacked a legislature, but also for
possessions which had been settled and which lacked a legislature.
Previously, settlers had seen their interests as better protected by the
classification of a settled colony because that took the local legal
(658) (1979) 142 CLR 617 at 633.
(659) See also the discussion by McHugh J of this passage in Burnie Port Authority v
General Jones Pty Ltd (1994) 179 CLR 520 at 592-593.
(660) Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 253-255.
(661) Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 254-256.
(662) David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
at 370-376.
structure outside prerogative control (663). Settled colonies had been
identified by the Privy Council in 1722 as those which had been found
"uninhabited" (664). This classification was extended to include
inhabited territory and in 1828 it was decided that the applicability of
the law of those inhabitants to settlers depended upon "the existence
of a lex loci, by which the British settlers might, without
inconvenience, for a time, be governed" (665).
That left various questions as to the legal position of the original
inhabitants (666). These included the operation of the criminal
law (667). After the adoption in Attorney-General (NSW) v
Brown (668) of the doctrine that the original title of the Crown
provided the foundation and source of all other land titles, there
remained in Australia the question of the extent to which the common
law denied all continuity to customary law of Aboriginal peoples with
respect to land. No question of native title arose for express decision in
Brown.
In 1889 the Judicial Committee decided Cooper v Stuart (669). No
question of native title was in issue in that case. However, the
reasoning of their Lordships was adverse to any theory of continued
native title. The appellant unsuccessfully sought to show that the rule
against perpetuities, in so far as it affected the Crown, was operative in
New South Wales at the time of an executive grant made by Governor
Brisbane in 1823. The Privy Council held that there was no land law
or tenure existing at the time of annexation to the Crown.
Nevertheless, as an exception to the general and immediate application
in New South Wales of English law, the law against perpetuities could
not justly and conveniently be applied in New South Wales against the
Crown.
As a step in their reasoning, their Lordships declared that the colony
of New South Wales had peacefully been annexed to the Crown, being
territory "practically unoccupied, without settled inhabitants or settled
law" (670). Of that proposition it was said in Mabo [No 2J (671):
(663) Mabo [No 2J (1992) 175 CLR I at 37.
(664) Anonymous (1722) 2 P Wms 75 [24 ER 646].
(665) Freeman v Fairlie (1828) I Moore Ind App 305 at 325 [18 ER 117 at 128].
(666) Walters, "British Imperial Constitutional Law and Aboriginal Rights: A Comment
on Delgamuukw v British Columbia", Queen's Law Journal, vol 17 (1992) 350, at
pp 365-373, 385-386.
(667) Taken in Australia to have been settled by R v Murrell (1836) I Legge 72; see
also, with respect to Bonjon's Case, the despatch from Governor Gipps to Lord
Stanley of 24 January 1842 and the reply of Lord Stanley of 2 July 1842 reprinted
in British Parliamentary Papers, Papers Relating to Emigration. the Aboriginal
Population and Other Affairs in Australia 1844 (1969), vol 8, Colonies Australia,
pp 143-156.
(668) (1847) 2 SCR (NSW) App 30.
(669) (1889) 14 App Cas 286.
(671) (1992) 175 CLR I at 39.
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"The facts as we know them today do not fit the 'absence of law'
or 'barbarian' theory underpinning the colonial reception of the
common law of England. That being so, there is no warrant for
applying in these times rules of the English common law which
were the product of that theory. It would be a curious doctrine to
propound today that, when the benefit of the common law was first
extended to Her Majesty's indigenous subjects in the Antipodes, its
first fruits were to strip them of their right to occupy their ancestral
lands."
Thus, it was appropriate to declare in 1992 the common law upon a
particular view of past historical events. That view differed from
assumptions, as to extent of the reception of English land law, upon
which basic propositions of Australian land law had been formulated
in the colonies before federation. To the extent that the common law is
to be understood as the ultimate constitutional foundation in Australia,
there was a perceptible shift in that foundation, away from what had
been understood at federation.
In Canada, the basic legal framework had developed quite
differently. In R v Van der Peet (672) McLachlin J identified two
fundamental principles upon which dealings with the aboriginal
peoples were predicated by the common law and those who regulated
British (and semble French (673)) settlement of Canada. These were,
first, "the general principle that the Crown took subject to existing
aboriginal interests in the lands they traditionally occupied and their
adjacent waters, even though those interests might not be of a type
recognised by British law" and, secondly, these interests "were to be
removed only by solemn treaty with due compensation" (674).
There remains lacking, at least in Australia, any established
taxonomy to regulate such uses of history in the formulation of legal
norms. Rather, lawyers have "been bemused by the apparent
continuity of their heritage into a way of thinking which inhibits
(672) [1996] 2 SCR 507 at 647-648; (1996) 137 DLR (4th) 289 at 382.
(673) R v Cote (1996) 138 DLR (4th) 358 at 401-407, per Lamer CJ, with whom
Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ agreed.
(674) The present legal regime in Canada is supported by s 35 of the Constitution Act
1982 which enshrines "existing aboriginal and treaty rights". Aboriginal rights
encompass more than what in Canada is regarded as aboriginal title: R v Adams
(unreported; Supreme Court of Canada; 3 October 1996), pars 26, 27 of the
judgment of Lamer CJ, with whom La Forest. Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ agreed. The text of s 35 is as follows:
"(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognised and affirmed. (2) In this Act, 'aboriginal peoples of
Canada' includes the Indian, Inuit and Metis peoples of Canada. (3) For greater
certainty, in subsection (I) 'treaty rights' includes rights that now exist by way of
land claims agreements or may be so acquired. (4) Notwithstanding any other
provision of this Act, the aboriginal and treaty rights referred to in subsection (I)
are guaranteed equally to male and female persons."
historical understanding" (675). Even if any such taxonomy were to
be devised, it might then be said of it that it was but a rhetorical device
devised to render past reality into a form useful to legally principled
resolution of present conflicts.
At what level of primary fact does one perceive the disappearance
of the foundation for native title by reason of the washing away by
"the tide of history" of any real acknowledgment of traditional law
and real observance of traditional customs? (676) Again, for example,
one might speculate on the significance their Lordships in Cooper v
Stuart might have attached to the observations of Governor Hutt in
1841 had they been dealing with the position in Western Australia.
The Governor wrote from Perth to the Colonial Secretary, Lord John
Russell, in accordance with his directions, a report "exhibiting the
state of the [A]borigines in Western Australia, and showing what has
been done for them in the course of the year preceding". In so doing,
the Governor said (677):
"They have no particular spotsVl'hich can be regarded as their
haunts, or where they habitually dwell; and though every family has
its particular locality or tract of land which it considers its own, yet
this seems to be open to the use of all the relations of the family,
and from their intermarriages, and consequent wide-spread con-
nexions, except there should be a blood fued [sic] between him and
the inhabitants of a particular district, a man may have the privilege
of hunting or of ranging for roots over very many miles of country;
even the land which an individual may call his own he has no
tenacious longing after when usurped by us, except so far as it may
afford him the means of subsistence; the moment we clear it for the
purposes of agriculture or gardening, it loses its chief value in his
eyes; so that an Australian's idea of property in land is limited, it
may be said, to its usufructuary value."
The development of an appropriate historical method to some extent
has been constricted by habits of thought engendered by the
adversarial processes of common law trial. In Air Canada v Secretary
of State for Trade (678), Lord Wilberforce emphasised that those
processes may, from the imperfections or absence of evidence,
(675) Baker, The Legal Profession and the Common Law - Historical Essays (1986),
p436.
(676) cf Mabo [No 2/ (1992) 175 CLR I at 60; R v Van der Peet (1996) 2 SCR 507 at
554-556; 558-559, 578-579; (1996) 137 DLR (4th) 289 at 315-316, 317-318, 332.
(677) British Parliamentary Papers, Papers Relating to Emigration, the Aboriginal
Population and Other Affairs in Australia 1844 (1969), vol 8, Colonies Australia,
p 380. John HUll was the second Governor of Western Australia, holding office
between 1839 and 1846.
(678) (1983)2 AC 394 at 438.
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produce an adjudication which is not, and is known not to be, the
whole truth of the matter. His Lordship observed (679):
"[T]he task of the court is to do, and be seen to be doing, justice
between the parties ... There is no higher or additional duty to
ascertain some independent truth."
From such a foundation, the further elucidation of common law
principles of native title, by extrapolation to an assumed generality of
Australian conditions and history from the particular circumstances of
the instant case, is pregnant with the possibility of injustice to the
many, varied and complex interests involved across Australia as a
whole. The better guide must be "the time-honoured methodology of
the common law" (680) whereby principle is developed from the
issues in one case to those which arise in the next. On the present
appeals, this requires close attention to the tenns of the 1910 Act and
the 1962 Act.
Statutory interpretation
The particular application in Mabo [No 2J of the declaratory theory
of the common law has consequences for these appeals. The Court is
called upon to construe statutes enacted at times when the existing
state of the law was perceived to be the opposite of that which it since
has been held then to have been. Moreover, there is an incongruity in
the application to the 1910 Act and the 1962 Act of the now
established common law doctrine that, in certain circumstances, regard
may be had to what is said by the responsible Minister in the course of
the passage through the legislature of the Bill for the particular Act in
question (681). The legislature would have proceeded in such a
situation upon a false understanding of the existing law.
The same is true of the "purposive" approach to construction,
enshrined in s 14A of the Acts Interpretation Act 1954 (Q). The goal
there is the promotion of the general legislative purpose underlying the
provision in question by the adoption of a construction which would
have that result over one which would not. Moreover, in 1910 and
1962 the legislature would not have been equipped fulIy to discern any
mischief or defect for the remedy of which the statutory provision was
appropriate. FinalIy, the false footing on which the legislature is now
seen to have acted inhibits the perception of "the equity of the
statute" with consequent significance for the doctrines of ilIegality
founded upon the scope and purpose of the legislation (682).
(679) Air Canada [1983) 2 AC 394 at 438.
(680) R v Van der Peet [1996)2 SCR 507 at 640-641; (1996) 137 DLR (4th) 289 at 377,
per McLachlin J.
(681) Pepper v Hart [1993) AC 593. Statute in Queensland provides to similar effect:
Acts Interpretation Act 1954 (Q), s 148.
(682) Nelson v Nelson (1995) 184 CLR 538 at 552-555; Orr v Ford (1989) 167 CLR
316 at 326-327,333-334.
Of course, a statute may operate adversely upon eXlstmg legal or
equitable rights which, at the time of the enactment, were unknown to
the legislature or even could not be known to it. An example is
Plimmer v Mayor &c of Wellington (683). There, the Judicial
Committee held that, upon the view it took of the facts (which
commenced in 1848), the appellant by 1856 had acquired, by a species
of estoppel, an equitable proprietary interest in certain land. That
interest gave a statutory right to compensation upon resumption of the
land in question in 1880.
It was in this period that Fry J determined Yarmouth Corporation v
Simmons (684). 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 (685):
"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 (686) and earlier by Isaacs J in Goodwin v Phillips (687)
and O'Connor J in Chief Commissioner for Railways and Tramways
(NSW) v Attorney-General (NSW). O'Connor J said (688):
"[E]xpress words are not necessary for the statutory extinction of a
(683) (1884) 9 App Cas 699.
(684) (1878) 10 Ch D 518.
(685) Yarmouth Corporation (1878) 10 Ch D 518 at 527.
(686) (1933) 50 CLR 154 at 178-179.
(687) (1908) 7 CLR I at 16.
(688) Chief Commissioner j(Jr Railways (1909) 9 CLR 547 at 560.
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public right of way. That is illustrated by Justice Fry's judgment in
Yarmouth Corporation v Simmons (689), 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. I have
referred to legislative intention with the particular meaning of
"intention" indicated in the Native Title Act Case (690) and discussed
earlier in these reasons. Impairment or extinguishment would also
follow if the 1910 Act or the 1962 Act prohibited acts which would be
committed in the exercise of what now would be accepted to be native
title. I approach the analysis of the 1910 Act and the 1962 Act upon
that footing and what follows should be read accordingly.
Expansion of radical title
Radical title is that acquired upon the assumption of sovereignty (as
understood in the law of nations) or, rather, upon settlement (691) (as
understood in that part of British constitutional law concerned with
Imperial expansion). Radical title links international and constitutional
law notions with those which support the private law of proprietary
rights and interests in land. Thus, radical title was "a postulate to
support the exercise of sovereign power within the familiar feudal
framework of the common law" (692). The framework included the
doctrine of tenures. Absolute and beneficial Crown ownership, a
plenum dominium, was established not by the acquisition of radical
title but by subsequent exercise of the authority of the Crown.
The mediaeval notion of tenure was expressed by the proposition
that all land was held directly or indirectly of the Crown. This
involved relationships of reciprocal obligation between the respective
parties at each level of the feudal structure, at the peak of which stood
the sovereign. In an understanding of these relationships, including
those between intermediate or mesne lord and tenant, "proprietary
language is out of place" and the dominium of any particular dominus
"was always a relative thing" (693). The concept of ownership by the
(689) (1878) 10 Ch D 518.
(690) (1995) 183 CLR 373 at 423.
(691) Mabo [No 2J (1992) 175 CLR I at 86-87.
(692) Mabo [No 2J (1992) 175 CLR I at 54.
(693) Milsom, The Legal Framework of English Feudalism (1976), p 39.
Crown of all land is a modern one, and its adoption in legal theory
may have been related to Imperial expansion in the seventeenth and
eighteenth centuries, well after the decline of feudalism (694). Writing
in 1896, Professor Jenks said (695):
"[T]he theory had almost died a natural death when it sprang to life
again in the most unexpected manner with the acquisition of the
great English colonies. For if, as was the case, no subject could
show a recognised title to any of the countless acres of America and
Australia, at a time when those countries were first opened up by
white men, it followed that, according to this relic of feudal theory,
these acres belonged to the Crown. It may seem almost incredible
that a question of such magnitude should be settled by the revival of
a purely technical and antiquarian fiction."
In the law, fictions usually are acknowledged or created for some
special purpose, and that purpose should be taken to mark their
extent (696).
The State of Queensland relies strongly upon a passage in the
judgment of Brennan J in Mabo [No 2]. In the course of discussing the
extinguishment of native title upon the vesting by Crown grant of an
interest in land inconsistent with continued enjoyment of a native title
in respect to the same land, his Honour said (697):
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.
(694) Simpson, A History of the Land Law, 2nd ed (1986), pp I, 47-48; Edgeworth.
"Tenure, Allodialism and Indigenous Rights at Common Law: English, United
States and Australian Land Law Compared after Mabo v Queensland", Anglo-
American Law Review. vol 23 (1994) 397, at pp 428-432.
(695) Jenks, A History of the Australasian Colonies (1896), p 59.
(696) Mabo [No 2/ (1992) 175 CLR I at212; Morris v Pugh (1761) 3 Burr 1241
at 1243 [97 ER 811 at 8111; Fuller, Legal Fictions (1967), pp 56-71.
(697) Mabo [No 2/ (1992) 175 CLR I at 68.
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I have referred to the significant constitutional developments
embodied in mid-nineteenth century legislation, culminating in
Queensland with the 1867 Act, whereby settlement was achieved, in
favour of the colonial legislatures, of the conflicting fiscal and political
interests of the Imperial and local authorities and of the executive and
the colonial legislatures in the disposition of the waste lands of the
Crown.
That settlement, embodied in ss 30 and 40 of the 1867 Act, was
implemented in successive statutes. These provisions include sub-
ss (1) and (2) of s 6 of the 1910 Act, which state (698):
"(1) Subject to this Act, the Governor in Council may, in the
name of His Majesty, grant in fee-simple, or demise for a term of
years, any Crown land within Queensland.
(2) The grant or lease shall be made subject to such reservations
therein stated."
Section 209(1 )(ii) of the 1910 Act empowers the Governor in Council
to make regulations which prescribe forms and "the conditions,
stipulations, reservations, and exceptions that shall be inserted ... in
grants, leases, licenses, and other instruments".
The term "Crown Land" was defined in s 4 as follows (699):
being -
(a) Lawfully granted or contracted to be granted in fee-simple by the
Crown; or
(c) Subject to any lease or license lawfully granted by the Crown:
Provided that land held under an occupation license'shall be deemed
to be Crown land."
The phrase "[a]1I land in Queensland" was apt to include land in
respect of which the Crown held radical title. By that radical title, as a
postulate of the doctrine of tenures and <1 concomitant of sovereignty,
the common law enabled the Crown to grant interests in land to be
held of the Crown and to become absolute beneficial owner of
unalienated land required for the purposes of the Crown (700).
(698) Section 8 of the Crown Lands Act 1884 (Q), s 12 of the Land Act 1897 (Q) and
s 6( I) and (2) of the 1962 Act were all in similar tenns.
(699) Section 4 of the 1910 Act followed, in this respect, the tenns of earlier legislation
including the Pa,ftoral Leases Act 1869 (Q) (s 3), the Crown Lands Act 1884 (Q)
(s 4) and the Land Act 1897 (Q) (s 4) and the pattern is continued in the definition
of "Crown Land" in s 5 of the 1962 Act.
(700) Mabo [No 2J (1992) 175 CLR I at48.
However, by the constitutional settlement of the mid-nineteenth
century, these prerogatives of the Crown, part of the common law,
were displaced. Thereafter, all land in Queensland was to be dealt with
pursuant to statute. It was by legislation that interests in the land were
to be granted by the Crown and land was to be reserved or dedicated
to "public purposes" (70 I).
Section 6( I) 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 (702). 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. Moreover, as will appear later in
these reasons, whilst entry by the lessee was essential, at common law,
to the creation of the reversion, s 6(2) operated effectually to vest
interests granted under the statute in advance of and without
dependence upon entry.
In addition, special provision was made by s 135 for consequences
of forfeiture or other premature determination of any lease or licence.
Section 135 provided:
accordingly. "
It is apparent that the term "revert" is used in the particular sense of
the reassumption of the character of "Crown land" liable to further
disposition under s 6. Further, as I seek to explain later in these
reasons, whilst entry was necessary to create the common law
reversion, compliance with s 6(2) effectually vested without the need
for prior entry, the interest granted. Upon that state of affairs, s 135
would operate in the above manner.
(701) The term "Public Purposes", as it appeared in the definition of "Crown Land" in
the 1910 Act, itself was defined in s 4 by reference to a lengthy list of objects or
purposes, including"Aboriginal reserves".
(702) The effect of the proviso to par (c) of the definition of "Crown Land" was to
classify as Crown land susceptible of grant or demise under s 6 land held merely
under an occupation licence issued under PI III (ss 40-47) of the 1910 Act.
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The 1962 Act contains similar provisions to ss 4, 6 and 135 of the
1910 Act (703).
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" (704).
Extinguishment by the general provisions of the Act
Putting to one side particular submissions concerning the pastoral
lease provisions, it is convenient first to consider whether the general
operation of the 1910 statute necessarily involved the extinguishment
of any native title in relation tu an area of Crown land (as defined in
s 4) which subsisted at the commencement of the 1910 Act on
I January 1911 (705). Particular attention is required to two
provisions. The first is s 203 (706). This states:
exceeding twenty pounds." (707)
Section 203 is concerned with the protection of the interests of the
Crown in land which, for the time being, has not been granted in fee,
is not reserved for or dedicated to public purposes, and is not subject
to any lease or licence granted by the Crown, other than an occupation
licence. This follows from the definition of "Crown land" in s 4. On
its face, s 203 would have rendered a trespasser any person who, in
exercise of what now are to be characterised as having been native title
rights, occupied any of the very large area of Queensland falling
within the definition of "Crown land" or conducted there any of the
activities referred to in s 203. Were that so, the ground would be
(703) The 1962 Act, s 5 (definitions of "Crown land" and "Public purposes"), s 6,
s 299 (forfeiture).
(704) cf Davies v Littlejohn (1923) 34 CLR 174 at 187-188.
(705) Section 2 of the 1910 Act provided for this commencement date.
(706) Section 203 of the 1910 Act largely, but not fully, followed the terms of s 29 of
the Unoccupied Crown Lands Occupation Act 1860 (Q), s 72 of the Pastoral
Leases Act 1869 (Q), s 91 of the Crown Lands Alienation Act 1876 (Q), s 124 of
the Crown Lands Act 1884 (Q), and s 236 of the Land Act 1897 (Q).
(707) This is a summary offence (s 206).
provided for a submission as to the general extinction of native title in
respect of any land from time to time falling within the definition of
"Crown land".
However, the progenitors of s 203 included s 91 of the Crown
Lands Alienation Act 1876 (Q). Section 91 stated:
"Any person unless lawfully claiming under a subsisting lease or
license or otherwise under this Act who shall be found occupying
any Crown lands or land granted reserved or dedicated for public
purposes either by residing or by erecting any hut or building
thereon or by clearing digging up enclosing or cultivating any part
thereof or cutting or removing timber otherwise than firewood not
for sale thereon shall be liable on conviction to a penalty not
exceeding five pounds for the first offence and not exceeding ten
pounds for the second offence and not exceeding twenty pounds for
the third or any subsequent offence. Provided that no information
shall be laid for any second or subsequent offence until thirty clear
days shall have elapsed from the date of the previous conviction."
(Emphasis added.)
In Mabo [No 2], s 91 was construed by Brennan J (708) (with whose
judgment Mason CJ and McHugh J agreed) and by Deane and
Gaudron 11 (709), as being directed to those who were in occupation
under colour of a Crown grant or without any colour of right and as
not directed to indigenous inhabitants in occupation of land by right of
what is now to be seen as their unextinguished native title. Those
indigenous inhabitants were not by s 91 rendered trespassers, liable to
expulsion from Crown lands. They were not included in the class or
description of persons to whom s 91 was directed. That was because
an indigenous inhabitant as identified above would not be "any
person". This construction of s 91 was an important step in the
reasoning which led to the conclusion that the native title of the
Meriam people had not been extinguished.
The 1910 Act and its predecessors were enacted at a time when
there was doubt whether at common law the Crown was obliged to
proceed by way of information for intrusion because it could not
maintain an action for ejectment. These doubts since have been
dispelled (710). However, they assist in perceiving the purpose of the
first paragraph of s 204 in conferring a specific remedy for the
removal of trespassers from Crown land.
Section 204 states (711):
(708) Mabo [No 2J (1992) 175 CLR I at 66.
(709) Mabo [No 2J (1992) 175 CLR I at 114.
(710) The Commonwealth v Anderson (1960) 105 CLR 303 at 318.
(711) Section 204 was predated (as to the first paragraph of s 204) by s 28 of the
Unoccupied Crown Lands Occupation Act 1860 (Q). and more fully by s 71 of the
Pastoral Leases Act 1869 (Q), s 90 of the Crown Lands Alienation Act 1876 (Q),
s 123 of the Crown Lands Act 1884 (Q), and s 235 of the Land Act 1897 (Q).
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"Any Commissioner (712) or officer authorised in that behalf by
the Minister who has reason to believe that any person is in
unlawful occupation of any Crown land or any reserve, or is in
possession of any Crown land under colour of any lease or license
that has become forfeited, may make complaint before justices, who
shall hear and determine the matter in a summary way, and, on
being satisfied of the truth of the complaint, shall issue their
warrant, addressed to the Commissioner or to such authorised
officer or to any police constable, requiring him forthwith to remove
such person from such land, and to take possession of the same on
behalf of the Crown; and the person to whom the warrant is
addressed shall forthwith carry the same into execution.
A lessee or his manager or a licensee of any land from the Crown
may in like manner make a complaint against any person in
(Emphasis added.)
The first paragraph of s 204 is concerned with the recovery of
possession on behalf of the Crown of land which is "Crown land"
within the definition of that term in s 4. The second paragraph assists
those holding from the Crown under any lease or licence land which,
in the above sense, for the time being is not Crown land.
In that regard it is convenient at this point to consider the decision
in Macdonald v Tully (713). There, in delivering the judgment of the
Court, Cockle CJ said of a plaintiff who was a lessee within the
meaning of s 5 of the Tenders for Crown Lands Act 1860 (Q)
that (714):
"This right of the plaintiff to occupy was ... capable of being
maintained against any disturber, whether assuming to disturb in
virtue of an alleged lease or otherwise."
The Full Court granted a motion for arrest of a judgment recovered in
an action against a nominal defendant representing the Crown. The
plaintiff's complaint had been that the Crown had wrongly granted to
a third party a lease of the land in question and that, in response to
threats of trespass made by that third party, the plaintiff had withdrawn
from occupation of the land. The judgment was arrested on the footing
that the plaintiff's case failed because, rather than maintaining his own
right, he had acquiesced in the claim of right made by the third party
and had withdrawn from the runs without notice to or knowledge on
the part of the Crown. This case illustrates that an end sought to be
achieved by legislation such as s 203 and s 204 of the 1910 Act was
(712) Being the Land Commissioner for the district in which the land in question is
situated, or a Deputy Land Commissioner: see the definition in s 4.
(713) (1870) 2 QSCR 99.
(714) Macdonald v Tully (1870) 2 QSCR 99 at 106.
the imposition of legal order upon the confusion which developed with
the expansion of European settlement. In particular, the second
paragraph of s 204 conferred some security of tenure against third
parties, including settlers with competing claims.
In each paragraph of s 204, the term "any person" was used to
identify those whose occupation of the Crown land was "unlawful".
Section 203 achieved the same result by the phrase "not lawfully
claiming". As indicated above, the term "any person" is not apt to
include those claiming under native title. The use of "unlawful" does
not require a different construction. Rather, it supports the above
construction.
The word "unlawful" may be used in various senses. Two of these
were discussed by Griffith CJ in Lyons v Smart (715). His Honour
spoke as follows with reference to the unlawful importation and
unlawful possession provisions of the Customs Act 1901 (Cth) as they
then stood (716):
"Now, the word 'unlawfully' is a word commonly used in Statutes
creating crimes, misdemeanours and minor offences, and in such
Acts it is used in two shades of meaning, one when referring to an
act which is wrong or wicked in itself - recognised by everybody
as wicked - as, for instance, when it is used with reference to
certain sexual offences, or with reference to acts which are
absolutely prohibited under all circumstances; the other when
referring to some prohibition of positive law. The Customs Act 1901
has nothing to do with what is right or wrong or virtuous. It contains
certain arbitrary rules which the legislature lays down. What is
wrong is wrong because the Act says so, and for no other reason.
The word 'unlawfully' must, therefore, there being no other relevant
law, be read in that context as meaning 'in contravention of the
provisions of this Act.' "
The situation with which these appeals are concerned, the exercise of
rights attached to native title, would not, without more, be in
contravention of the provisions of the 1910 Act, in the above sense of
"unlawful" used by the Chief Justice. Indeed, the question at issue is
whether, upon its true construction, the 1910 Act contained clear and
plain provisions necessarily inconsistent with the continuation of
native title. The answer to that question is not to be found by passing
through a gateway erected by a particular construction of "unlawful"
in s 204.
In Lyons v Smart (717), Barton J and O'Connor J treated the
ordinary meaning of an unlawful act as one "forbidden by some
(715) (1908) 6 CLR 143.
(716) Lyons v Smart (1908) 6 CLR 143 at 147-148. See also Owens v Collector of
Customs (NSW) (1940) 40 SR (NSW) 605 at 609.
(717) (1908) 6 CLR 143 at 155, per Barton J; at 160, per O'Connor J.
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definite law", whether statute law or common law. Upon the present
hypothesis, there is no statute forbidding the exercise of rights of
native title and that title is recognised by the common law of Australia.
Finally, in his dissenting judgment in Lyons v Smart, Isaacs J referred
to that construction of "unlawfully" as meaning without any bona fide
claim of right or colour of justification (718). If s 204 be interpreted in
this way, a bona fide assertion of a claim to rights conferred by native
title would not render occupation unlawful.
In the result, whichever shade of meaning is given to that term as
used in s 204, as to which it is unnecessary to express any concluded
opinion, s 204 did not render indigenous inhabitants relying upon their
native title liable to removal from land which was for the time being
Crown land or land comprised in a lease or licence from the Crown,
by warrant issued at the instance either of officers of the Crown or the
lessee or licensee.
Further, the reasoning which leads to the construction of s 203
which does not render those holding native title trespassers upon the
subject lands applies at least as forcefully to the construction of the
phrase "unlawful occupation of any Crown land" in the first
paragraph of s 204. This is not to be read as directed to authorising the
Crown to expel indigenous inhabitants from occupation of land
enjoyed in exercise of their unextinguished native title. That being so,
no different interpretation should be given to the phrase "unlawful
occupation" in the second paragraph of s 204. The presumption is that
the same meaning should be given to the same phrase where it occurs
in the same provision and the context here does not suggest the
contrary (719).
Finally, the terms of s 204 are of some assistance in an analysis of
those particular forms of tenure created by the 1910 Act which are
identified by expressions using the terms "lease" and "licence". The
second paragraph of s 204, which must be read with the first,
authorises a lessee and licensee of any land from the Crown to take
proceedings in the same manner as a Commissioner or officer
authorised by the Minister. If successful, this will lead to the issue of a
warrant for the removal of the unlawful occupiers and thereafter to
what is identified as the taking of "possession" of the subject land
"on behalf of' the less'ce or licensee. The section treats indifferently
the nature of the enjoyment of such a lessee or licensee by use of the
same term, "possession", to identify it.
On the other hand, at common law the term "exclusive possession"
is used as a touchstone for the differentiation between the interest of a
(718) LI'I!/lS I' Smart (1908) 6 CLR 143 al164. See also CotterillI' Penn [1936] I KB
53 at 61.
(719) cf McGr",..-Hinds (AusO Pty Ltd \' Smith (1979) 144 CLR 633 at 643: Clyne 1"
Deputy Commissioner ot" Taxation (1981) 150 CLR 1 at 10. 15-16: Murphy v
Farmer (1988) 165 CLR 19 at 26-27.
lessee and that of a licensee, who has no interest in the premises.
"Exclusive possession" serves to identify the nature of the interest
conferred upon the lessee as one authorising the exclusion from the
demised premises (by ejectment and, after entry by the lessee, by
trespass) not only of strangers but also, subject to the reservation of
any limited right of entry, of the landlord (720). As Windeyer J put it,
a tenant cannot be deprived of the rights of a tenant by being called a
licensee (721).
Accordingly, s 204 points towards a construction of the 1910 Act
which does not treat as coincident with the characteristics of "leases"
and "licenses" as understood at common law, those of the tenures
created by the statute and identified therein by terms which include
one or other of those words.
Provision corresponding to s 203 and s 204 is made in s 372( I) and
s 373(1) respectively of the 1962 Act. The conclusions reached with
respect to the earlier provisions apply to their later counterparts.
Pastoral leases
It is appropriate to turn to consider more closely the particular
provisions of the legislation with respect to pastoral leases. The
question is whether it follows upon a proper construction thereof and
by reason of the steps taken thereunder by the issue of the Mitchellton
Pastoral Leases and the Holroyd River Pastoral Lease, the necessary
extinguishment of any subsisting native title.
Attention is to be focused upon the terms of the legislation and of
the instruments themselves. In that examination, the term "exclusive
possession" is of limited utility. As has been indicated, by s 204 the
1910 Act created its own remedy in the nature of ejectment and made
it available not only to lessees but also to licensees of any land from
the Crown.
To reason that the use of terms such as "demise" and "lease" in
legislative provisions with respect to pastoral leases indicates (i) the
statutory creation of rights of exclusive possession and that,
consequently, (ii) it follows clearly and plainly that subsisting native
title is inconsistent with the enjoyment of those rights, is not to answer
the question but to restate it.
The term "lease" may be used in a statute in a limited sense only.
Thus, a lease enforceable in equity under the doctrine in Walsh v
Lonsdale (722) may not answer the description of "lease" in a
particular statute (723). Statute, such as the Landlord and Tenant
(Amendment) Act 1948 (NSW), may create between parties who were
(720) Radaich v Smith (1959) 101 CLR 209 at 222; Street v Moullt!iJrd [1985] AC 809
at 827.
(721) Voli v IlIglewood Shire Coullcil (1963) 110 CLR 74 at 90.
(722) (1882) 21 Ch D 9.
(723) Chall v Cresdoll Pty Ltd (1989) 168 CLR 242 at 264.
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landlord and tenant a relationship for the identification of which "no
new terminology ... has come into existence" (724). The phrase
"statutory tenant" then may be used to identify these rights and
obligations which subsist only by virtue of the legislation and are
unknown at common law (725).
In the present dispute, the necessary analysis discloses an operation
of the legislation comparable to that identified by Isaacs J in respect to
conditional purchases under the Crown Lands Consolidation Act 1913
(NSW). In Davies v Littlejohn (726), his Honour said of tenures
created by such legislation:
"It creates them, shapes them, states their characteristics, fixes the
mutual obligation of the Crown and the [grantee], and provides for
the mode in which they shall cease to exist."
More recently, in R v Toohey; Ex parte Meneling Station Pty
Ltd (727), Mason J spoke to similar effect. The question there was
whether a grazing licence granted pursuant to the Crown Lands Act
1931 (NT) to permi t the grazi ng of stock on Crown land conferred an
"estate or interest" in the subject land within the meaning of the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), so as to
take the grazing licence beyond the reach of its provisions as to grants
to Aboriginal Land Trusts (728). In deciding that a grazing licence
conferred no such "estate or interest", Mason J determined that the
rights of the holder of such a licence fell short in two respects of the
concept of property or proprietary rights expressed in the well-known
analysis by Lord Wilberforce in National Provincial Bank Ltd v
Ainsworth (729). First, although a licence might be granted for up to
one year, it was liable to cancellation by the Minister on three months'
notice in writing and without any default by the licensee. Secondly, the
licence was not assignable, thereby emphasising the personal nature of
the rights conferred by it. In the course of this analysis, Mason J
said (730):
"The grazing licence is the creature of statute forming part of a
special statutory regime governing Crown land. It has to be
(724) Arnold v Mann (1957) 99 CLR 462 at 475.
(725) Andrews v Hogan (1952) 86 CLR 223 at 250; Chelsea Investments Ply Ltd v
Federal Commissioner of Taxation (1966) 115 CLR I at 6.
(726) (1923) 34 CLR 174 at 187.
(727) (1982) 158 CLR 327 at 344.
(728) cf Goldsworrhy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR
199, affd (1975) 132 CLR 463; there the issue was whether a dredging lease
granted by the State of Western Australia pursuant to the Iron Ore (Mount
Goldsworrhy) Agreeme1lt Amendment Act 1964 (WA) rendered the taxpayer a
lessee for the purposes of s 88(2) of the Income Tax Assessment Act 1936 (Cth).
(729) [1965] AC 1175 at 1247-1248.
(730) Meneling Station (1982) 158 CLR 327 at 344.
attaching too much significance to similarities which it may have
with the creation of particular interests by the common law owner of
land."
Two further points should be made here. The first is that land law is
but one area in which, whilst statute may appear to have adopted
general law principles and institutions as elements in a new regime, in
truth the legislature has done so only on particular terms. A statutory
body in which a fund is vested may be styled as a "Trust", or may be
given by its constituent statute the investment powers of trustees. In
neither case may contributors to the fund have the beneficial interest of
an ordinary cestui que trust (731). On the other hand, from an express
statement that a statutory body is not bound by the law relating to the
administration of trust funds by trustees, it does not necessarily follow
that in other respects this body is a trustee in the ordinary sense of
moneys held by it (732). In such ways the legislature may create
entities which have some but not all of the characteristics of a trust. In
each case the true construction of the law determines the d ~ g r e e of the
analogy. Accordingly, there is nothing remarkable in the use of a term
such as "lease" or "licence" to identify new institutions not fully to
be identified with either term as understood at common law.
The second point is that it is unhelpful to approach the issues of
construction which arise on these appeals by asking whether the 1910
Act and the 1962 Act each is a "code" and, after giving a negative
answer, to conclude that a pastoral lease for a particular period has the
same incidents of a lease for such a term under the general law. Like
native title itself (733), the interests created by the 1910 Act and the
1962 Act take their place in the general legal order. As such (and
subject to the operation of doctrines of illegality (734)), those interests
may be the object of rights and obligations created inter partes and
supported by the law of contract. In O'Keefe v Williams (735), this
Court held that there was an implied covenant by the Crown not to
derogate from the rights of a plaintiff under an "occupation licence"
granted under the New South Wales Crown lands legislation. For
breach of a contractual obligation to deal in a statutory interest in or
with respect to land, a remedy in the nature of specific performance
(731) Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640; Superannuation
Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330
at 353-354, 362-364.
(732) Registrar of Accident Compensation Tribunal v Federal Commissioner of
Taxation (1993) 178 CLR 145 at 161-168.
(733) Mabo [No 2J (1992) 175 CLR I at 61.
(734) As considered, eg, in Chalmers v Pardoe [19631 I WLR 677; [19631 3 All ER
552; Maharaj v Chand [1986) AC 898; Orr v Ford (1989) 167 CLR 316.
(735) (1910) II CLR 171. It will be necessary (0 make further reference to this case
later in these reasons.
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may be appropriate (736). In the circumstances of the particular case
and depending upon the particular incidents attached by statute to the
interest in question, there may be an equity to relief against forfeiture
of that interest (737). The exercise of statutory powers with respect to
the granting of interests thereunder which are conferred upon the
executive may be attended by obligations to afford procedural fairness,
and equity may, by injunction, restrain eviction of the plaintiff pending
the determination of an application for a further grant (738).
In such ways, the legal system may operate upon pastoral leases and
other interests created under the 1910 Act and the 1962 Act. However,
in so doing, the legal system takes those interests as they are found in
the statute. It does not first so classify those interests that they fit
within one or other category of estate or interest already known to the
general law.
It is true that s 6( I) of the 1910 Act speaks of a "demise for a term
of years", as well as the grant in fee simple. However, in s 6(2) the
same formalities are prescribed for both a "grant" and a "lease".
Moreover, under this provision the lease is to be made in the
prescribed form and, being so made, is stated as being "valid and
effectual" both to convey to and to vest "in the person therein named
the land therein described for the estate or interest therein stated".
Section 6(2) is not merely a procedural provision. By stating that
compliance with this requirement was effectual to vest the interest in
question, it marks off, to a significant degree, pastoral leases from
leases granted under the common law.
If the Mitchellton Pastoral Leases were treated as attended in their
creation by the same requirement as those attending the creation of
leases under the common law, neither of those instruments would have
vested the term in the lessees. At common law, the term would have
vested only upon entry and there was no such entry. Before entry, the
lessees would have had merely an interest in the term, or interesse
termini. With effect from I December 1975 (739), the doctrine of
interesse termini was abolished by s 102 of the Property Law Act 1974
(736) BUI/s v O'Dwyer (1952) 87 CLR 267 at 286; McWilliam v McWilliams Wines PI)'
Ltd (1964) 114 CLR 656 at 660-661; Brown v H ~ f f e r (1967) 116 CLR 344 at 349-
350.
(737) AI/orney-General (Vict) v Ellershank (1875) LR 6 PC 354 at 370; McPherson v
Minister for Natural Resources (1990) 22 NSWLR 671 at 682-683, per Kearney J,
affd Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 697-
703,713-715; cf Davies v Lil/lejohn (1923) 34 CLR 174 at 184,190-191,196-
it was held in this case that, in respect of conditional purchases under the Crown
Lands Consolidation Act 1913 (NSW), the Crown did not have a vendor's lien for
the instalments of purchase money not yet due.
(738) Queensland v Litz [1993] I Qd R 343 at 349-351.
(739) Property Law Act 1974 (Q), s 1(2); Residential Tenancies Act 1975 (Q), s 2. The
latter statute was repealed with effect from 3 April 1995 by s 342 of the
Residential Tenancies Act 1994 (Q).
(Q) and s 12 of the Residential Tenancies Act 1975 (Q) (740). This
was after the grant of the Holroyd River Pastoral Lease. The interesse
termini gave not an estate but a right of entry (741). This reflected the
origin in covenant of the rights of the lessee against the lessor, so that,
if the lessor failed to deliver possession, the lessee could not bring a
real action. The remedy was one for breach of covenant (742). Entry
was essential to create the estate in reversion (743). However, as
indicated earlier in these reasons, the 1910 Act operated without the
creation in favour of the Crown of what at common law would be
regarded as a reversionary estate.
Part III of the 1910 Act was headed "PASTORAL TENURES".
Division I thereof (ss 40-44) was headed "Pastoral Leases", and
Div II (ss 45-47) was headed "Occupation Licenses". Occupation
licences were granted by the Minister (s 46) and pastoral leases by the
Governor in Council (s 6). Occupation licences, unless renewed for the
next year, expired on 31 December of the year of grant (s 47(1. The
term of any pastoral lease was not to exceed thirty years (s 40(2.
Pastoral leases might be mortgaged (ss 156, 158, 159) (744) and
surrendered (s 122).
The pastoral leases and occupation licences, as the two species of
pastoral tenure, were treated without distinction in various provisions
of the 1910 Act outside Pt III. Reference already has been made to
s 204. Pastoral leases and occupation licences might be transferred to
qualified persons with the permission of the Minister (s 166). In
respect of both species of interest, the same provision (s 129)
conferred a power of forfeiture for default in payment of rent and
acceptance by the Crown of any rent or other payment did not operate
as a waiver of such forfeiture (s 131 (2. The expression "the land
shall revert to His Majesty and become Crown land, and may be dealt
with under this Act accordingly" is used in s 135 in respect of
determination of either pastoral lease or licence before the expiration
of the period or term of grant; under the common law, determination
of a licence would not ordinarily be described as bringing about a
reversion of the land to the licensor. Finally, in Pt III itself, s 43(1)
(740) Section 102(2) of the Pi-iJperry Law Act 1974 (Q) provided that, from the date of
commencement of the Act, all terms of years absolute, were to be capable of
taking effect from the date fixed for commencement of the term, without actual
entry.
(741) Lord Llangattock v Watney Combe Reid & Co Ltd [1910] I KB 236 at 246, affd
[1910] AC 394.
(742) Note, "Is Interesse Termini Necessary'?", Columbia Law Review, vol 18 (1918)
595. If the lease were made by way of bargain and sale for a term, the term would
vest by operation of the Statute of Uses and without actual entry: Lutwich v Mitton
(1620) Cro lac 604 [79 ER 516].
(743) Mann Crossman & Paulin v Land Registry (Registrar) [1918] I Ch 202 at 206-
207.
(744) Detailed provision for the mortgaging of interests, including pastoral leases, under
the 1962 Act is made by ss 275-281 of that statute.
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requires of every pastoral lease that it be subject to a condition as to
payment of "rent", and s 47(2) stipulates the "rent" for an
occupation licence.
A condition might be imposed upon a pastoral lease that the land be
enclosed and kept enclosed with a rabbit-proof fence (s 40(1)). No
such condition was imposed in the Mitchellton Pastoral Leases. At the
time of the grant of the second of the Mitchellton Pastoral Leases in
1919, s 43(iii) (745) provided, in certain circumstances, for the
inclusion of a condition of personal residence during the first seven
years of the term. No such condition was imposed in the second of the
Mitchellton Pastoral Leases. On the other hand, in Pt IV (ss 48-114),
headed "SELECTIONS", there were obligations of fencing (ss 78-83)
and detailed provision as to conditions of personal residence and
occupation (ss 86-93).
Each of the Mitchellton Pastoral Leases was expressed to "demise
and lease" the land "for pastoral purposes only" and to be subject to
the conditions and provisos in Pt III, Div I of the 1910 Act and to the
other provisions of that statute and to the Mining on Private Land Act
1909 (Q), and to any Regulations made or thereafter to be made under
that Act or the 1910 Act. The Court was furnished with the relevant
General Regulations under s 209 of the 1910 Act (746). These indicate
that both the Mitchellton Pastoral Leases were in Form 3 prescribed by
reg 4 and that the expression "for pastoral purposes only" appeared in
Form 3. The Form, like the two Mitchellton Pastoral Leases, contained
what was styled a "reservation" in favour of the Crown of a right of
access to search for or work gold and minerals and there was a further
"reservation" of a right of access in favour of any person authorised
in that behalf by the Governor in Council to go upon the land "for any
purpose whatsoever, or to make any survey, inspection, or examination
of the same".
Section 209(1)(ii) of the 1910 Act empowered the Governor in
Council to make the General Regulations prescribing Form 3 and this
fell within the terms of the central provision in s 6(2). This stated that
a grant or lease "shall be made subject to such reservations and
conditions as are authorised or prescribed by this Act or any other Act,
and shall be made in the prescribed form ... " . The term
"reservation" in strict usage identifies something newIy created out of
the land or tenement demised and is inappropriate to identify an
exception or keeping back from that which is the subject of the
grant (747). However, in accordance with the Australian usage referred
(745) Inserted by s 8 of the Land Act Amendment Act 1916 (Q).
(746) "General Regulations Under 'The Land Act of 1910''', published Queensland
Government Gazette, vol XCVIII, No 167,28 June 1912. The Regulations were
amended and supplemented from time to time in the period before the grant of the
second Mitchellton Pastoral Lease, but nothing turns upon these further
Regulations.
(747) Norton on Deeds, 2nd ed (1928), pp 268-272.
to by Windeyer J in Wade v New South Wales Rutile Mining Co Pty
Ltd (748), "reservation" was apt in Form 3 to identify that which was
withheld or kept back by the grants made by the Governor in Council
under the 1910 Act. The adoption of Form 3 with this text does not
necessarily support a proposition that without these "reservations" the
holder of the pastoral lease would have had the entitlement to refuse
entry or re-entry to all persons whatsoever.
The ordinary meaning of the phrase "for the purpose of pasture" is
the feeding of cattle or other livestock upon the land in question (749).
The phrase "for pastoral purposes" would include the feeding of
cattle or other livestock upon the land but it may well be broader, and
encompass activities pursued in the occupation of cattle or other
livestock farming. Even upon this broader interpretation, it cannot be
said that there have been clearly, plainly and distinctly authorised
activities and other enjoyment of the land necessarily inconsistent with
the continued existence of any of the incidents of native title which
could have been subsisting at the time of these grants of the pastoral
leases.
The foregoing supports four propositions. First there is apparent the
mixing together or combination in the statutory regime for pastoral
leases and occupation licences of elements which in an analysis under
the common law of leases and licences would be distinct (750).
Secondly, the terms of the 1910 Act providing for pastoral leases were
apt to identify the characteristics and incidents of that statutory
interest. Thirdly, those characteristics were not such as to approximate
what under a lease as understood at general law may have been a right
to exclude as trespassers persons exercising rights attached to their
subsisting native title. Fourthly, the contrary conclusion, that native
title holders were rendered trespassers as a consequence of rights given
by pastoral leases, would be at odds with the interpretation of the
phrase "unlawful occupation" which, as indicated earlier in these
reasons, is to be given its use in s 204 of the 1910 Act.
I tum to the Holroyd River Pastoral Lease. Part III (ss 49-80) of the
1962 Act is headed "PASTORAL TENURES", and Div I (ss 49-65) is
headed "Pastoral Leases". There are two pastoral tenures in addition
to pastoral leases, stud holdings (ss 66-74) and occupation licences
(748) (1969) 121 CLR 177 at 194.
(749) Westropp v Elligott (1884) 9 App Cas 815 at 819-820.
(750) It should also be noted that s 104, contained in PI IV of the 1910 Act, and s 127
contained in PI IV, of the 1962 Act, provide for a "Perpetual Lease Selection".
This is identified as "a lease in perpetuity", something unknown to the common
law, there being no limitation of time to fix the boundary of the term: see Landale
v Menzies (1909) 9 CLR 89 at 125; Prudential Assurance Co Ltd v London
Residuary Body [1992] 2 AC 386 at 390, 396-397. The result is the creation of a
statutory title which is sui generis; see Nolan v Wi/limbong Shire Council (1939)
14 LGR (NSW) 89 at 90; Ryall, "Perpetual Leaseholds in New South Wales",
Australian Law Journal, vol II (1937) 223; Fry, "Land Tenures in Australian
law", Res Judicatae, vol 3 (1947) 158, at pp 167-169.
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(ss 75-80). The tenn "rent" is used in respect of occupation licences
(s 79) as well as pastoral leases (s 61). There was a statutory
maximum of thirty years as the tenn of a pastoral lease (s 53(1)). The
prescribed fonn for pastoral leases differed from that under the 1910
Act in not expressing the grant as "for pastoral purposes only". Other
differences between the two regimes are identified by Gaudron J in her
reasons for judgment.
As indicated earlier in these reasons, the land carried approximately
one beast to 60 acres. The cattle were run under open range conditions.
At the time of the relevant grant in 1974, there appear to have been six
sets of roughly constructed mustering yards but no other improvements
upon the land. Section 14 of the 1962 Act obliged the grantees to
perfonn conditions imposed upon them by the statute or the
grant (751). The instrument contained conditions requiring, within five
years, the sowing of at least 40.5 ha as a "seed production area" and
the construction of an airstrip, 90 miles of internal fencing, one set of
main yards and dip, three earth dams and a manager's residence, with
quarters for five men and a shed. There was a further condition
requiring, within that period, the enclosure of the holding with a good
and substantial fence. This was unwelcome to the grantees. It was not
common practice on Cape York to boundary fence. Apparently as the
result of an exercise of the discretion conferred upon the Minister by
s 64(3) of the 1962 Act, the grantees later were relieved from
compliance with this condition (752). The airstrip was constructed and
the Minister appears to have accepted that there was compliance with
the requirement for dam construction. The other conditions were not
complied with by the grantees. Failure to comply with conditions
required by the Holroyd River Pastoral Lease rendered it liable to
detennination by forfeiture (ss 14(1) and 295 of the 1962 Act). Upon
such detennination, the land reverted to the Crown and became Crown
land available for re-grant (ss 299(1), 6(1 )). The person in occupation
would be obliged by s 299(2) to give to the Land Commissioner
peaceful possession of the land and of all improvements thereon.
Liability to forfeiture might be waived by the Minister (s 297(2)).
Despite some differences between the two statutory regimes and
subject to one qualification, the same conclusions apply to the Holroyd
(751) Section 14(1) states: "Subject to this Act the lessee of a holding or holder of a
license under this Act shall perform all of the conditions of the lease or license
which by this Act or by the lease or license are required to be performed by him
and for any failure so to do shall be liable to the prescribed penalty (if any) and
the lease shall be liable to be forfeited or the license to be determined as
prescribed.' .
(752) Section 64(3) states: "The Minister, in his discretion, may exempt a lessee from
performing any condition of fencing imposed upon the lease of a pastoral lease
and may alter or cancel such exemption." A power of deletion, variation and
amendment of developmental and improvement conditions, with approval of the
Governor in Council and consent of the lessee, was conferred by s 14(2).
River Pastoral Lease as those reached with respect to the Mitchellton
Pastoral Lease. In none of these instances was there clear, plain and
distinct authorisation by the relevant grant of acts necessarily
inconsistent with all species of native title which might have existed. It
does not appear that the statutory interests could be enjoyed only with
the full abrogation of any such native title.
The qualification is that the later but not the earlier grants were
subject to conditions requiring improvements to the land. It may be
that the enjoyment of some or all native title rights with respect to
particular portions of the 2,830 km
2
of the Holroyd River 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.
It remains to consider two authorities of this Court which were cited
in opposition to the submissions presented by the Wik Peoples and the
Thayorre People. In American Dairy Queen (Q'ld) Pty Ltd v Blue Rio
Pty Ltd (753), this Court was concerned with the construction of Pt XI
(ss 334-361) of the 1962 Act. Division I is headed "Deeds of Grant in
Trust and Reserves" and Pt XI deals generally with grants, reserves
and reservations for public purposes. As was indicated in argument in
that case (754), the provisions of Pt XI, in particular s 343 dealing
with leases by a Trustee and s 347 dealing with the transfer, mortgage
and subletting of leases, are to be contrasted with the detailed
provisions in Div VIII (ss 273-293) of Pt X. These deal with
subleases, mortgages, transfers and other dealings with certain
holdings, including pastoral leases created under earlier Parts of the
Act. Section 343 and the sections following expressly mentioned only
one interest, identified as a lease. It was held that by adopting the
terminology of leasehold interests the legislature must be taken to have
intended the operation of the incidents of corresponding interests at
common law as modified by the statute (755). The immediate issue
concerned the power of a sublessee to deal with its interest, the subject
premises being a reserve having upon it a kiosk and other buildings
adjacent to a swimming area at Southport. I would not treat that
decision as authority going beyond the particular operation of Pt XI of
the 1962 Act. The decision is further discussed by Toohey J in his
judgment in the present case. I respectfully agree with what is said
there by his Honour.
The second authority is O'Keefe v Williams (756). I agree with the
(753) (1981) 147 CLR 677.
(754) American Dairy Queen (1981) 147 CLR 677 a1679.
(755) American Dairy Queen (1981) 147 CLR 677 a1683, 686.
(756) (1910) II CLR 171.
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analysis of this case by Gaudron J in her Honour's reasons for
judgment.
Conclusions
Of the questions separately determined by Drummond J,
Questions 4 and 5 arise in this Court only upon the appeal by the Wik
Peoples. These questions concerned the claims against Comalco and
Pechiney. The appeal by the Wik Peoples in respect of the answers to
those questions should be dismissed.
The Wik Peoples also appeal in respect to the answer to Questions
lB and Ie. The Thayorre People appeal with respect to the answer to
Question Ie. Drummond J answered in the affirmative that element in
Question lB which asked whether the grant of the Holroyd River
Pastoral Lease necessarily extinguished all incidents of Aboriginal title
or possessory title of the Wik Peoples in respect to the land demised
thereunder. His Honour also answered that element of Question 1e
which asked whether the grant of either of the Mitchellton Pastoral
Leases necessarily extinguished all incidents of Aboriginal title or
possessory title of the Thayorre People in respect to the land demised
thereunder by stating that the grant of the first Mitchellton Pastoral
Lease extinguished Aboriginal title.
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. There
should be no further delay in preparing for trial. The particular
elements of Questions 1Band 1e to which I have referred are
contained in each case in par (d). This asks whether the grant of the
pastoral lease in question necessarily extinguished all incidents of
native title. The form of par (d) thus is important. However, both
Question lB and Question le were so drawn that consideration of
par (d) only arose upon an affirmative answer to the question posed in
par (b). This asked whether the respective pastoral leases conferred
"rights to exclusive possession on the grantee". In my view, as
indicated earlier in these reasons, the posing of a question in those
terms may have distorted the essential issues and par (d) should have
stood independently for decision. On the other hand, there was no
challenge at the hearing before this Court with respect to questions and
answers to par (a) in Questions 1Band 1e (757).
1 would deal with this situation in respect of both Question 1Band
(757) In their notice of appeal, the Thayorre People challenge answer "No" given by
Drummond J to the question in par (a) of Question Ie. However, the statement of
the grounds of appeal does not further refer to the maller, and it was not the
subject of submissions. Accordingly, there is no reason to doubt the correctness of
the judgment of Drummond J on the point. I adopt the reasons of Gaudron J for
affirming the answer given by Drummond J to Question lc(a).
Question Ic by answering par (b) "No", par (c) "Does not arise",
and par (d) "Strictly does not arise, but is properly answered no".
Each appeal should be allowed in part. In the appeal by the Wik
Peoples, the answers given by Drummond J to Question 1B and
Question IC should be set aside and replaced by answers reflecting the
above conclusions. On the appeal by the Thayorre People, this is
required only in respect of Question Ie. Costs in this Court should be
ordered as proposed by Toohey 1. The costs of the proceedings below
should be remitted for further consideration by the Federal Court.
KIRBY J. These proceedings, removed into this Court from the
Federal Court of Australia, concern a claim by Aboriginal Australians
to "native title" (758) in respect of certain land in Northern
Queensland. They raise the issue of the effect on such title of pastoral
leases granted under Queensland legislation. Also raised is a challenge
to the effectiveness of two agreements with mining consortia which,
by statute, are given the force of law as if they were enacted by the
Queensland Parliament.
INTRODUCTION
The Mabo decision and its aftermath
Before the decision of this Court in Mabo v Queensland
[No 2J (759) (Mabo [No 2]), the foundation of land law in Australia
was as simple as it was clear. From the moment that the lands of
Australia were successively annexed to the Crown, they became "in
law the property of the King of England" (760). It was so in respect
of Eastern Australia when Governor Phillip received his first
commission from King George III on 12 October 1786. It was so after
the first settlement of the English penal colony was established in
Sydney in 1788 (761). No act of appropriation, reservation or setting
apart was necessary to vest the title in the land in the Crown. All land,
including all waste lands of the colony, were "without office found, in
the Sovereign's possession ... as his or her property" (762). Land
interests were thereafter enjoyed only as, or under, grants made by the
(758) A preferable description is "traditional title"; cf Mabo v Queensland {No 2J
(1992) 175 CLR I at 176, per Toohey J. The words "aboriginal natives" appeared
in the Constitution, s 127 (now repealed) and in colonial legislation. In the
statement of claim and notice of appeal the appellants refer to "Aboriginal title".
However, such title rights are not confined to Aboriginals. They extend to other
indigenous peoples. The term "native title" has been used repeatedly in decisions
of this Court and other Australian courts. It is now used in Federal and State
legislation. It is therefore used throughout these reasons.
(759) (1992) 175 CLR I.
(760) Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 439, per Isaacs J. See
also Fry, "Land Tenures in Australian law", Res Judicatae, vol 3 (1947) 158.
(761) Attorney-General (NSW) v Brown (1847) I Legge 312.
(762) Attorney-General (NSW) v Brown (1847) I Legge 312.
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Crown. This doctrine, providing the ultimate source of all interests in
land in Australia, was upheld by early decisions of the courts of the
Australian colonies. But it was also accepted (763), affirmed (764) and
reaffirmed (765) by this Court. Although the indigenous inhabitants of
Australia (Aboriginals and Torres Strait Islanders) "had neither ceded
their lands to the Crown nor suffered them to be taken as the spoils of
conquest" (766), their legal interests in, and in relation to, the annexed
land were considered to be extinguished. If they were to enjoy any
such interests thereafter, they could do so only by, or under, a grant
from the Crown: the universal repository of the ultimate or "radical"
title (767).
This apparently unjust and uncompensated deprivation of pre-
existing rights distinguished the treatment by the Crown of the
indigenous peoples in Australia when compared to other settlements
established under the Crown in the American colonies (768),
Canada (769), New Zealand (770) and elsewhere. The principle was
criticised (771). However, from the point of view of the settlers, their
descendants and successors, it was part of Australia's historical reality.
From the point of view of legal theory, it had a unifying simplicity to
commend it: No legally enforceable rights to land pre-existing
annexation and settlement. No title to land except by or under a Crown
grant made out of the royal prerogative of the Sovereign in the earliest
days and thereafter pursuant to enabling legislation.
Into this settled and certain world of legal theory and practicality,
the decision in Mabo [No 2] (772) intruded. By that decision, this
Court unanimously affirmed that the Crown's acquisition of sover-
eignty over the territories which now comprise Australia might not be
challenged in an Australian court. Upon the acquisition of such
(763) Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 439.
(764) Randwick Corporation v RutledRe (1959) 102 CLR 54 at 71.
(765) New South Wales v The Commonwealth (the Seas and Submerged Lands Case)
(1975) 135 CLR 337 at 438.
(766) Mabo [No 2J (1992) 175 CLR 1 at 29, per Brennan J.
(767) See also Fry, "Land Tenures in Australian Law", Res ludicatae, vol 3 (1947)
158, at p 158, citing Williams v Attorney-General (NSW) (1913) 16 CLR 404
at 439, per Isaacs J.
(768) Cherokee Nation v GeorRia (1831) 5 Peters 1; Worcester v GeorRia (1832)
6 Peters 515; Menominee Tribe of Indians v United States (1968) 391 US 404;
loint Tribal Council of the Passamaquoddy Tribe v Morton (1975) 528 F 2d 370;
cf Mabo [No 2J (1992) 175 CLR I at 135-136.
(769) Guerin v The Queen [1984] 2 SCR 335; (1984) 13 DLR (4th) 321; Sparrow v The
Queen [1990] 1 SCR 1075; (1990) 70 DLR (4th) 385; Delgamuukw v British
Columbia (1993) 104 DLR (4th) 470; affirmed sub nom R v Van der Peet [1996]
2 SCR 507; (1996) 137 DLR (4th) 289; Apsassin v The Queen [1995] 4 SCR 344;
(1995) 130 DLR (4th) 766; cf Mabo [No 2J (1992) 175 CLR 1 at 131-135.
(770) In re the Ninety-Mile Beach [1963] NZLR 461 at 468; cf Mabo [No 2J (1992) 175
CLR 1 at 137.
(771) Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 256.
(772) (1992) 175 CLR 1.
sovereignty, the Crown acquired a radical title to the land. But, by
majority (773), the Court held that what it called "native title"
survived the Crown's acquisition of sovereignty and of the radical
title. However, such title was subject to extinguishment where it was
shown that the sovereign power, acquired by annexation, had been
exercised in respect of land in a way inconsistent with the continuance
of the native title (774).
The decision in Mabo {No 2J called forth a great deal of legal
commentary (775). It resulted in the passage of the Native Title Act
1993 (Cth). Various State Acts were also enacted, including the Native
Title (Queensland) Act 1993 (Q). In Western Australia v The
Commonwealth (the Native Title Act Case) (776), this Court upheld
the general validity of the federal Act as resting upon s 51(xxvi) of the
Constitution. That paragraph empowers the Federal Parliament to
make laws with respect to the "people of any race for whom it is
deemed necessary to make special laws" . It was held that the Act was
"special" in that it conferred on the holders of native title benefits
protective of that title, otherwise vulnerable to extinction in
accordance with the holding in Mabo {No 2J (777).
The Native Title Act 1993 (Cth) did not purport to provide for the
consequences for native title of the grant of pastoral leases such as are
in question in this appeal. In the Preamble to the Act, the Parliament
expressed its understanding of the decision of this Court in Mabo
(No 2J to include a holding that (778):
" ... 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."
(773) Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh 11, Dawson J
dissenting.
(774) Maho [No 2J (1992) 175 CLR I at 68.
(775) eg, Bartlett, "Political and Legislative Responses to Mabo", University ot'
Western Australia Law Review, vol 23 (1993) 352; Mcintyre, "Aboriginal Title:
Equal Rights and Racial Discrimination", University ot' New South Wales Law
Journal, vol 16 (1993) 57; Reynolds, "The Mabo Judgment in the Light of
Imperial Land Policy", University ot' New South Wales Law Journal, vol 16
(1993) 27; Lumb, "Native Title to Land in Australia: Recent High Court
Decisions", International and Comparative Law Quarterly, vol 42 (1993) 84;
Stephenson and Ratnapala (eds), Maho: a Judicial Revolution. The Aboriginal
Land Rights Decision and its Impact on Australian Law (1993); Nettheim,
"Judicial Revolution or Cautious Correction? Maho v Queensland", University ot'
New South Wales Law Journal, vol 16 (1993) I; Hanks, "A National Aboriginal
Policy", University of New South Wales Law Journal, vol 16 (1993) 45; Phillips
(ed), Essays on the Maho Decision (1993); Butt and Eagleson, Maho: Whar the
High Court said and what the Government did (1996); Webber, "The
Jurisprudence of Regret: The Search for Standards of Justice in Mabo", Sydney
Law Review, vol 17 (1995) 5.
(776) (1995) 183 CLR 373. Section 12 of the federal Act was found to be invalid.
(777) (1995) 183 CLR 373 at 460-462.
(778) Native Title Act 1993 (Cth), Preamble at par 7(c).
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The Act provided for the recognition and protection of native
title (779). This Court has had occasion to emphasise the beneficial
character of the procedures established by the Act, in North Ganalanja
Aboriginal Corporation v Queensland (the Waanyi Case) (780). That
was an appeal from the Full Court of the Federal Court of
Australia (781). Although the holding of the Federal Court in the
Waanyi Case included a holding about the effect, in law, of the grant
of a pastoral lease in Queensland, this Court, by majority (782),
considered that it was then premature to determine the correctness of
the Federal Court's opinion on the "pastoral lease question". The
application on behalf of the Waanyi people was returned to the
National Native Title Tribunal established by the Native Title Act 1993
(Cth) so that the procedures of that tribunal might be correctly
followed.
It did not take long for an opportunity to present itself again
whereby this Court would be asked to consider the effect of pastoral
leases upon the native title found, in Mabo [No 2J (783), to have
survived the annexation by the Crown of the Australian lands.
In Wik Peoples v Queensland (784), a single Judge of the Federal
Court of Australia (Drummond J) answered a number of questions of
law raised by the claims of the Wik Peoples ("the Wik" - the
present appellants) and also the Thayorre People ("the Thayorre" -
the nineteenth respondents) to an area of land in Northern Queensland
affected by earlier grants of pastoral leases under Queensland law. The
several questions isolated for consideration by Drummond J, and
answered by him, conccrned:
I. Whether the power of the Queensland Parliament to enact laws
providing for pastoral leases without preserving native title rights was
limited in law. (The State constitution question.)
2. Whether a grant of a pastoral lease in Queensland, without
express reservation of native title rights, necessarily extinguished
native title, including that of the Wik and the Thayorre. (The pastoral
leases question.)
3. Whether the passage of the Mining on Private Land Act 1909 (Q)
and/or the Petroleum Act 1915 (Q) had extinguished any native title
rights which the applicants may have had in minerals and petroleum
beneath the subject land. (The mineral rights question.)
4. Whether the applicants could claim relief against the State of
Queensland and Comalco Aluminium Ltd if a grant by the State of
Queensland to that company of rights in land, including mining rights,
(779) Native Title Act 1993 (Cth). s 3(a).
(780) (1996) 185 CLR 595.
(781) North Ganalanja Aboriginal Corporation v Queensland (1995) 61 FCR 1.
(782) Waanyi Case (1996) 185 CLR 595, per Brennan CJ, Dawson, Toohey, Gaudron.
McHugh and Gummow 11, myself conIra.
(783) (1992) 175 CLR 1.
(784) (1996) 63 FCR 450.
extinguished any native title rights which the applicants may have had
in the land, having regard to the Commonwealth Aluminium
Corporation Pty Limited Agreement Act 1957 (Q) and the agreement
entered into pursuant to that Act. (The Comalco Agreement question.)
5. A similar question to the Comalco Agreement question in relation
to the entitlement of the Wik and the Thayorre to maintain claims
against the State of Queensland or Aluminium Pechiney Holdings Pty
Ltd (the fifth respondent) having regard to the Aurukun Associates
Agreement Act 1975 (Q) and the Aurukun Associates Agreement
purportedly made under that Act. (The Aurukun Agreement question.)
When Drummond J answered each of the foregoing questions
adversely to the Wik (and consequentially to the interests of the
Thayorre) an appeal was immediately taken to the Full Court of the
Federal Court of Australia. An application for removal of that appeal
into this Court was heard and granted on 22 March 1996. However,
the issues for decision in the appeal were narrowed. The State
constitution question and the mineral rights question were not pressed.
This left as the active issues in the appeal the pastoral leases question
and the Comalco and Aurukun Agreement questions. I shall group the
latter together to be dealt with in due course as the "Statutory
Agreements question".
The ultimate questions for decision in this Court are relatively
simple and confined. Did the pastoral leases granted in the lands
claimed by the Wik and the Thayorre, either by the fact of grant or the
terms thereof, extinguish the native title rights of the Wik and the
Thayorre? Could the claim brought by the Wik against the State of
Queensland and the companies mentioned in the Statutory Agreements
be maintained in law, notwithstanding the steps purportedly taken
under the legislation authorising the making of those agreements to
give them the force of statute?
It might be thought that such relatively straightforward questions
would yield simple answers. Whilst I regard the Statutory Agreements
question as being relatively simple to answer, the pastoral leases
question is not. Most of the oral hearing before this Court was devoted
to its complexities, as were the written submissions and documentation
filed by the parties, numbering many thousands of pages. These have
taken the Court into the history and incidents of feudal land tenures in
England; the reception of land law into the Australian colonies, and
specifically into Queensland; the history of the special legislative
measures enacted in colonial and post-colonial Queensland to provide
for pastoral leases; and the decisions of many courts on the meaning
and effect of the statutory provisions in question.
For the purposes of comparison, the Court was also taken to
colonial practice and legislation as well the modern statutes affecting
pastoral leases in the States of Australia and in the Northern Territory.
The State of Queensland was the first respondent to the appeal. All of
the other States (except New South Wales and Tasmania) and the
Northern Territory intervened. The Court received detailed sub-
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mIssIons on behalf of the Commonwealth (second respondent) and
contradictory submissions for the Aboriginal and Torres Strait Islander
Commission (thirteenth respondent). It received submissions from a
number of Aboriginal Councils concerned about the possible impli-
cations of the resolution of the pastoral leases question for jurisdictions
other than Queensland. It also heard submissions from various
interests representing pastoralists who might be affected were the Wik
to succeed. Some of these submissions drew upon decisions of courts
of other common law countries upon problems described as analogous,
being the resolution of conflicts about legal claims upon land made on
behalf of indigenous peoples (785) and the claims of pastoralists and
their suggested foreign counterparts (786).
Procedural context
At the outset it is appropriate to say something about the procedural
context in which the issues before the Court arise.
In June 1993, following Mabo [No 2J, proceedings were
commenced in the Federal Court on behalf of the Wik. By those
proceedings, the Wik, an Aboriginal clan or group, sought a
declaration as to their native title rights in relation to a large area of
land in Northern Queensland. The Wik also claimed damages and
further relief in the event that it was found that such rights had been
extinguished. One of the respondents to the claim was the Thayorre,
another Aboriginal clan or group. The Thayorre cross-claimed for
similar declarations in respect of lands which overlapped, in part, those
the subject of the claim of the Wik.
Subsequently, in January 1994, the Native Title Act 1993 (Cth)
commenced operation. The Wik made an application to the Federal
Court for the adjournment of its proceedings under the general law so
that they could apply to the Tribunal established under the new Act for
a determination that they enjoyed "native title" as, in effect, they
were claiming in the Federal Court action. The application for
adjournment, and subsequent procedural issues, were all dealt with in
the Federal Court by Drummond J (787). Some of the respondents
supported the application or did not oppose it. Others opposed it on the
ground of the fragmentation of the litigation. On II March 1994,
Drummond J ruled that the Wik could divide the proceedings. But to
avoid vexation of the resisting respondents, the Wik were required to
file and serve an undertaking not to prosecute further their original
claim for native (called "Aboriginal") or possessory title. That
application was adjourned but with liberty to any party to restore it
(785) ego Delgamuukw v British Columbia (1993) 104 DLR (4th) 470; affirmed sub nom
R v Van der Peet [199612 SCR 507; (1996) 137 DLR (4th) I.
(786) eg, United States v Dann (1983) 706 F 2d 919; United States v Dann (1985) 470
US 39; United States v Dann (1989) 873 F 2d 1189.
(787) Wik Peoples v Queensland (1994) 49 FCR I.
depending on the prosecution and outcome of the claim under the
Act (788).
The Wik brought proceedings under the Act for the determination of
their claim to native title. On 18 April 1994, Drummond J heard
argument as to whether some of the issues raised should not be
disposed of as preliminary questions. Much the same course was
followed as in the Waanyi claim, ie it was ordered that a number of
issues arising from the proceedings be dealt with as preliminary
questions (789). This course was followed before the clarification by
this Court, of the procedural entitlement of claimants, such as the Wik,
as explained in the Waanyi Case (790). No party has taken any point
on this procedural irregularity.
The Wik accepted that some issues in their claim were appropriate
for preliminary determination. However, they submitted that it was
first necessary for evidence to be taken. A difference arose as to
whether that evidence should be more than formal and documentary
evidence. The Wik sought to be released, in part, from their
undertaking to the Federal Court so that they could pursue part of their
claim under the general law, outside the Act. This application was
refused on 26 May 1994. Instead, Drummond J, with the assistance of
the parties, formulated questions on the five issues identified above.
Drummond 1's rulings were challenged before the Full Court of the
Federal Court. Whilst expressing no opinions on the substantive issues,
the Full Court declined to disturb the interlocutory orders which
Drummond J had made (791). Some of the submissions of the Wik
before the Full Court appear similar to those subsequently upheld by
this Court in the Waanyi Case (792). However, the Full Court was of
the view that the legal questions were important and that it was in the
interests of all parties that they be determined as quickly as
possible (793).
It was against this background that Drummond J came to the
determination of the questions presenting the issues which he had
separated for resolution (794). Those questions, so far as still relevant
to the proceedings removed into this Court, are set out in the reasons
of Brennan CJ. I do not repeat them. As I have stated, all of them were
answered by Drummond J adversely to the interests of the Wik (795)
and some only of them are now contested.
The point of explaining this protracted procedural saga is now
reached. The notice of appeal filed by the Wik (as amended) sets out
(788) Wik Peoples v Queensland (1994) 49 FCR I.
(789) North Ganalanja Aboriginal Corporation v Queensland (1995) 61 FCR I.
(790) (1996) 185 CLR 595.
(791) Wik Peoples v Queensland (unreported; 6 September 1994).
(792) (1996) 185 CLR 595. The submissions concerned the statutory right to mediation.
(793) cf Waanyi Case (1996) 185 CLR 595 at 669.
(794) Pursuant to 0 29, r 2(a) of the Federal Court Rules 1979 (Cth).
(795) Wik Peoples v Queensland (1996) 63 FCR 450 at 450-452.
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those grounds of appeal which are still in contest. Certain of the
grounds challenge the correctness of Drummond 1's procedural
approach. They assert that his Honour erred "in treating the question
[of the effect of the pastoral leases] as a question only of law and not a
question of fact or a mixed question of fact and law". They dispute
that the questions were "capable of determination in the absence of a
determination of facts as to the nature and extent of native title rights
and interests". As argued, I did not take these grounds of appeal to
seek to reagitate the discretionary procedural decision of Drummond l,
as such. Whilst appellate courts retain their supervision to correct error
in such orders, they are most hesitant to disturb them, even where, in
effect, those orders have the consequences of striking out or otherwise
terminating the entire proceeding (796). Instead, I took the Wik to be
raising a point of substance. This was that, upon one view of the law,
pastoral leases of the kind here in question do not, merely by grant,
extinguish the native title of the Wik. Such extinguishment depends
upon the elucidation, by evidence, of complex facts. Relevant facts
might include, for example, whether the lessee entered into possession.
Alternatively, they might include a painstaking examination of the
conduct of successive lessees and successive generations of the Wik to
see whether in fact there was such an inconsistency between the title
under the pastoral lease and native title as to extinguish the latter.
It will be necessary to return to this point of substance. I depart the
procedural complaint by the Wik over the course followed in the
Federal Court by endorsing the remarks of Sir Thomas Bingham MR
in E (A Minor) v Dorset County Council (797). An order to strike out
an action or to separate and answer adversely to the plaintiff
preliminary questions having the same effect, may not be an
appropriate course where the source of doubt as to the "legal viability
of a cause of action" is that "the law is in a state of transition". In
such a case it may be desirable to reach conclusions on the law after
conclusions have been reached on the facts. Evidence may sometimes
add substance and understanding to the legal claim, depending on what
it is.
Against this background, the Wik made it clear to this Court that the
sole relief they sought was that the appeal be allowed and new answers
given to the questions formulated by Drummond 1 (so far as they were
still in issue and it was appropriate to answer them). The proceedings
could then be returned for trial. They did not seek to formulate
(796) House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions
Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Williams & Humbert Ltd
v W & H Trade Marks (Jersey) Ltd [1986] AC 368 at 435-436, 441. cf Pos.'fund
Custodian Trustee Ltd v Diamond [1996] I WLR 1351 at 1355-1358; [1996] 2 All
ER 774 at 778-781.
(797) [199512 AC 633 at 693-694; approved X (Minors) v Bedfordshire County Council
[19951 2 AC 633 at 740-741, per Lord Browne-Wilkinson; applied Mulcahy v
Ministry of Defence [1996] QB 732 at 737-739.
declaratory or other relief in this Court. This was because it is of the
essence of their contentions that the proper elucidation of their
entitlements to native title would be found after evidence is adduced,
and factual findings made, concerning the incidents of the title enjoyed
under the pastoral leases when compared with the proved character-
istics of the native title of the Wik.
The Wik could only have stood to lose from the procedure adopted
by Drummond J. That is why it was, in effect, a strike out application
or demurrer to their claim. If any of the questions remaining in contest
are answered favourably to the Wik, it was enough for them that the
proceedings should be returned for trial. Any future elucidation or
elaboration of such complex questions as the relationship in this case
between pastoral leases and native title could be better attempted
against a thorough understanding of the facts, including the variations
in place and time both of the incidents of the pastoral lease in question
and the native title claim. If the threshold could be passed, the Wik
would then be in a position to take their claim to trial.
PASTORAL LEASES
Common ground
Despite the strenuous contest over matters of great importance
which this litigation has presented, many points relevant to its
determination were either agreed or not seriously in contest amongst
the parties:
1. There was no challenge to the principle established by Mabo
[No 2J that the duty of this Court (as of every Australian court) is to
apply the common law and relevant statutes although this could lead to
the extinguishment or impairment of native title. This Court,
established by the Constitution, operates within the Australian legal
system. It draws its legitimacy from that system. Self-evidently, it is
not an institution of Aboriginal customary law. To the extent that
native title is recognised and enforced in Australia by Australian law,
this occurs because, although not of the common law, native title is
recognised by the common law as not inconsistent with its
precepts (798). This does not mean that, within its own world, native
title (or any other incidents of the customary laws of Australia's
indigenous peoples) depends upon the common law for its legitimacy
or content. To the extent that the tide of history has not washed away
traditional laws and real observance of traditional customs, their
legitimacy and content rest upon the activities and will of the
indigenous people themselves (799). Two centuries of interaction
between Australian law and such traditional laws and customs have
doubtless affected the latter, often to their detriment. Now, the
(798) Mabo [No 2J (1992) 175 CLR I at 61.
(799) Mabo [No 2J (1992) 175 CLR I at 60,71.
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decision in Mabo [No 2J, the enactment of the Native Title Act 1993
(Cth) and other legislation have begun a process which may protect
and reinforce some aspects of traditional laws and customs. But no
dual system of law, as such, is created by Mabo [No 2J. The source of
the enforceability of native title in this or in any other Australian court
is, and is only, as an applicable law or statute provides. Different
considerations may arise in different societies where indigenous
peoples have been recognised, in effect, as nations with inherent
powers of a limited sovereignty that have never been
extinguished (800). This is not the relationship which the indigenous
people of Australia enjoy with the legal system of Australia. For
Aboriginal legal rights, including to native title, to be enforceable in an
Australian court, a foundation must be found within the Australian
legal system (801). These truisms do not resolve all of the issues
concerning the relationship between the Australian legal system and
Aboriginal law and custom, including as to native title. It will be
necessary to return to some of the differences which have emerged.
2. No party challenged the decision in Mabo [No 2]. No party
sought leave to reargue the correctness of Mabo [No 2J or the
fundamental principle which it establishes, contrary to the previous
understanding of the law, that native title to land survived the Crown's
acquisition of sovereignty in Australia. The respondents did not
contest the importance of the Court's decision in Mabo [No 2J or the
necessity which that decision imposed to accommodate the new
understanding of native title rights within a legal system which, for
two hundred years, had developed in great detail on the basis of a
completely contradictory assumption. The position of the parties
contesting the submissions of the Wik and the Thayorre was, not that
Mabo [No 2J was wrongly decided, but that, contained within its
holdings, or implicit in a logical development of its reasoning, were
conclusions sustaining the answers given in the Federal Court to the
questions isolated in this case.
3. No party contested the determination in Mabo [No 2J that upon
annexation of the Australian territory, sovereignty over every part of
Australia passed to the Crown which thereupon acquired a radical title
in respect of all such land. There was no contest that the Crown, as
Sovereign, had the power, in accordance \vith law, to deal with land in
every part of Australia. To the extent that it did so in a way
inconsistent with Aboriginal law and custom or native title, the latter
would, to that extent, be liable to extinguishment or impairment.
(800) Cherokee Nation v Georgia (1831) 5 Peters I; Worcester v Georgia (1832)
6 Peters 515. See Mabo [No 2J (1992) 175 CLR I at 193, per Toohey J;
Reynolds, Aboriginal Sovereignty: Reflections on Race. State, and Nation (1996);
Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws
(1975).
(801) cf Coe v The Commonwealth (1993) 68 ALJR 110; 118 ALR 193; Walker v New
South Wales (1994) 182 CLR 45. per Mason CJ.
4. There was some discussion during argument about Aboriginal
traditions and customs other than in relation to possession of land.
However, as pleaded, this case is not concerned with claims of a
sentimental or ceremonial kind. It is not concerned, as such, with
rights of a spiritual or religious character. It is concerned with interests
in land. It presents the question whether the grants of the pastoral
leases proved constituted such an exercise of the acquired sovereignty
over Australia as to extinguish the vulnerable native title which, until
then, had survived such acquisition of sovereignty.
5. Although there was also some discussion during argument about
the precise character and qualities of the Crown's radical title (802)
and about the character and qualities of native title, these questions do
not have to be exhaustively determined. It was suggested that native
title was allodial in character, ie that land in which the relevant
Aboriginal clan or group held native title would be held as their
absolute property and not as an estate from a Lord or superior. By
conventional doctrine, no land in England, at least after the Conquest,
was held allodially (803). The highest estate known to the common
law was one in fee simple. In a context in which this fiction of English
land law, derived from feudal times, has long been criticised as
inappropriate to Australian land law (804), it scarcely seems helpful to
attempt to categorise the laws and customs of Australian Aboriginals
as allodial in terms of the Lex Salica of Roman law. It seems safer to
agree with Macfarlane JA in Delgamuukw v British Columbia (805)
that Aboriginal rights are sui generis, difficult if not impossible to
describe in the terminology of traditional property law, being
communal, personal and usufructuary (806). Interesting although these
issues may be, they do not have to be resolved at this stage of the
present litigation.
6. No one disputed that, as a matter of fact, members of the Wik and
(802) See Rogers, "The Emerging Concept of 'Radical Title' in Australia: Implications
for Environmental Management", Environmental and Planning Law Journal, vol
12 (1995) 183; Stuckey, "Feudalism and Australian Land Law: 'A Shadowy,
Ghostlike Survival'?", University of Tasmania Law Review, vol 13 (1994) 102.
cf North Ganalanja Aboriginal Corporation v Queensland (1995) 61 FCR I at 29,
per Lee J.
(803) Blackstone, Commentaries on the Laws of England, 17th ed (1830) vol 2, P 105.
(804) Fry, "Land Tenures in Australian Law", Res Judicatae, vol 3 (1947) 158, at
pp 159-160. cf Edgeworth, "Tenure, Allodialism and Indigenous Rights at
Common Law: English, United States and Australian Land Law Compared After
Mabo v Queensland", Anglo-American Law Review, vol 23 (1994) 397.
(805) (1993) 104 DLR (4th) 470; affirmed sub nom R v Van der Peet [1996] 2 SCR
507; (1996) 137 DLR (4th) I.
(806) Delgamuukw (1993) 104 DLR (4th) 470 at 494-497 applying Paul v Canadian
Pacific Ltd [1988] 2 SCR 654 at 678; (1988) 53 DLR (4th) 487 at 505; R v
Sparrow [1990] I SCR 1075 at 1111-1112; (1990) 70 DLR (4th) 385 at 411. See
also warning of the Privy Council in Amodu Tijani v Secretary. Southern Nigeria
[1921] 2 AC 399 at 403, noted in Mabo [No 2J (1992) 175 CLR I at 195, per
Toohey J.
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the Thayorre had remained upon, travelled in and out of, and utilised
the land the subject of the pastoral leases in question in these
proceedings. There was no agreement about the intensity of such
usage. Hansard records of debates in the Parliament of Queensland and
evidence before Committees of that Parliament suggest that the
accepted policy in respect of "blacks" in Northern Queensland at the
end of the nineteenth century was opposed to the establishment there
of Aboriginal reserves (807). The Home Secretary explained that "the
aboriginals are by nature hunters, they would feel as if they were
imprisoned. I do not propose to deal with them in that way" (808).
This policy was also adopted by the Northern Protector of Aboriginals
(Dr Walter Roth). In answer to questions asked of him in Committee
he said (809):
"[Q:] Do they come under your control to round them up into
camps? I do not see any clause in the Bill which says I am to put
blacks into camps.
[Q:] In certain cases you may require every aboriginal to be drafted
away into some camp or reserve? In cases it may be necessary; but I
have no idea, and no one else has, of shifting the blacks from their
hunting-grounds on to reserves unless it is absolutely necessary to
do so.
[Q:] Then you would not have a provision of that kind in the Bill? I
have not asked for any.
[Q:] And you would not approve of it? No .
[Q:] You do not think it advisable to abolish camps and force all
the blacks to go on to reserves? Very far from that. How can we
keep 18,000 or 20,000 blacks on reserves'!"
The Northern Protector of Aboriginals had responsibility for
Aboriginals in the districts of Queensland included in the areas
claimed by the Wik and the Thayorre (810). Complaints were later
recorded from pastoralists that Aboriginals, roaming and hunting over
their traditional lands, sometimes frightened cattle or camped at
waterholes. But the Northern Protector of Aboriginals for 1903, in his
report to the Queensland Parliament, asserted (811):
(807) Second Reading of the Aboriginals Protection and Restriction of the Sale of
Opium Bill 1897 (Q), Queensland Legislative Assembly, Parliamenrary DebaTes
(Hansard), IS November 1897, pp 1538-1539.
(808) Queensland Legislative Assembly, ParliamenTary DebaTes (Hansard),
15 November 1897, p 1539.
(809) Debate in Committee on the Aboriginals Protection and Restriction of the Sale of
Opium Amendment Bill 1897, Queensland Legislative Council, ParliamenTary
DebaTes (Hansard), 8 October 1901, p 1139.
(810) Queensland GovernmenT GazeTTe, No 7, Vol LXIX, 8 January 1898, p 66;
Queensland GovernmenT GazeTTe, No 150, Vol LXXII, 18 November 1899,
p 1166.
(811) Annual Report of the Northern Protector of Aboriginals for 1903, Queensland,
ParliamenTary Papers (1904), p 870.
"[T]he principle must be rigidly instilled that the aboriginals have
as much a right to exist as the Europeans, and certainly a greater
right, not only to collect the native fruits, but also to hunt and
dispose of the game upon which they have been vitally dependent
from time immemorial. Were the assumption just mentioned to be
carried to its logical conclusion, and all available country leased or
licensed, we should have a condition of affairs represented by a
general starvation of all the aboriginals and their concurrent
expulsion from the State."
In an earlier report, the Northern Protector had stated (812):
"It would be as well, I think, to point out to certain of these
Northero cattle-men (at all events those few amongst them who
regard the natives as nothing more than vermin, worthy only of
being trampled on) that their legal status on the lands they thus rent
amounts only to this: There is nothing illegal in either blacks (or
Europeans) travelling through unfenced leasehold runs. These runs
are held only on grazing rights - the right to the grass - and can
only be upheld as against people taking stock, &c, through them. It
certainly is illegal for station-managers, &c, to use physical force
and threats to turn blacks (or Europeans) so travelling off such
lands. Carrying the present practice (might against right) to a logical
conclusion, it would simply mean that, were all the land in the north
to be thus leased, all the blacks would be hunted into the sea."
Because the Wik and the Thayorre were not banished from the lands in
question, still less hunted into the sea, the issue presented by this
aspect of these proceedings was not whether in fact the Wik and the
Thayorre had physically remained on their traditional lands. It was
simply whether in law they did so in pursuance of the native title
rights which the common law recognised and which the common law
and the Native Title Act 1993 (Cth) would now protect. Or whether
such rights had been extinguished by the Crown's action in granting
pastoral leases under legislation, which action was said to be
inconsistent with the continuance of native title rights.
7. Several of the respondents appealed to the Court to confine any
holding in this case to the peculiarities of pastoral leases in
Queensland and the suggested additional peculiarities, as between each
other, of the pastoral leases granted in respect of the Holroyd River
Holding and the Mitchellton Pastoral Holdings No 2464 and 2540
affecting the traditional lands of the Wik and the Thayorre. The
Holroyd River Holding is the pastoral lease referred to in Question 1B
in this case. The leases in respect of the Mitchellton Pastoral Holding
are the subject of Question Ie. The Wik are concerned principally
(812) Annual Report of the Northern Protector of Aboriginals for 1900, Queensland,
Votes and Proceedings (1901), vol 4, pp 1335-1337.
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with the Holroyd River Holding. The Mitchelleton Pastoral Holding is
principally the concern of the Thayorre. The Thayorre's claim to
native title around the Edward River in Northern Queensland includes
areas within the Mitchellton Holding. Because part of this land is
within the southern portion of the Wik's claim, the Thayorre were
joined in these proceedings. To a large extent the Thayorre made
principal cause with the Wik on the common issue of the effect of
pastoral leases generally upon native title. But the history of each
pastoral lease was different. The point was fairly made that not all
pastoral leases, including not all of them in Queensland, would reflect
the same history and depend on the same statutes and instruments of
pastoral lease as did the Holroyd and Mitchellton Holdings. As will be
shown, these holdings evidence minimal, if any, activity on the part of
the pastoral lessees in exercise of their leasehold rights. Such would
not necessarily be the case in other pastoral leases. Therefore, a
decision should not be made in the present case on an assumption that
the leaseholds in question here were necessarily typical or representa-
tive of Queensland pastoral leases generally. To the extent that native
title was not extinguished, as a matter of law, by the fact or necessary
concomitants of the grant of a leasehold interest, each such interest
would have to be considered individually. A fortiori, because of the
different colonial history, legislation, regulation and practices in the
several States of Australia and in the Northern Territory, care would
need to be observed in expressing any general rule concerning the
legal consequences of the grant of pastoral leases upon native title in
those jurisdictions. In particular, the legal consequences of express
reservations in the grant of a leasehold interest, to protect the rights of
Aboriginals (or arguably the reservation of lands for purposes
consistent with the enjoyment of those rights, as in national
parks (813)) needed to be separately considered. The different
contractual and legislative formulae which exist in this regard in the
several States and in the Northern Territory were explained. If the fact,
or necessary incidents, of the grant of a pastoral lease did not, without
more, extinguish any surviving native title, it was common ground that
this Court should confine its attention to the particular leases in
question in this case. It should avoid the expression of unnecessary
generalisations which might cause problems in future native title
claims in Queensland and, in significantly different legal settings,
elsewhere in Australia.
8. There is also a point concerning the role of the courts which
should be mentioned for it was referred to in submissions. Various
submissions acknowledged the injustices suffered by Australia's
indigenous peoples as a consequence of the substantial
extinguishment, after 1788, of their traditional laws and customs,
including native title. Thus, the Commonwealth admitted that
(813) Mabo [No 2J (1992) I7S CLR I at 70.
acceptance of its submissions, upholding the determination of
Drummond J on the effect of pastoral leases, could be regarded as
"the hard view", the "tough view" and one which "the Common-
wealth will completely admit is an unsatisfactory result so far as the
present position of Aboriginals, or of those claiming native title, may
be concerned" (814). Nevertheless, the Court was repeatedly reminded
of the limits of the proper function of the courts in resolving the
present claim according to law. Effectively to take away the property
rights conventionally assumed to have been granted and previously
enjoyed by those holding land by or under pastoral leases is an equally
serious matter given the law's respect for, and protection of, property
rights (815). The radical rewriting of the property rights of Aborigi-
nals, pastoralists and those taking under them is a matter for
legislation; not a court decision. So much may be accepted. No one
doubts the limits of this Court's functions in stating what the law is.
But just as in Mabo [No 2J, there is room for difference as to where
the boundary lies. The Court cannot disclaim the responsibility of
determining the legal claims advanced for the Wik and the Thayorre.
Those claims are before the Court to be decided according to law. A
new ingredient has been injected into the previously settled land law of
Australia by the decision in Mabo [No 2]. Settled principles and
assumptions must be re-examined to accord with the decision of the
Court in that case. Where there is no precise holding on the point (and
no valid legislation resolving any doubt) the Court must reach its
decision upon the competing legal contentions of the parties: finding
the applicable rule by the use of the normal techniques of judicial
decision-making, viz reasoning by analogy from established legal
authority illuminated by relevant legal history and informed by
applicable considerations of legal principle and legal policy (816).
9. No one doubted the significance of the issue tendered to the
Court. Various estimates were given of the area of land in Australia
covered by pastoral leases. For the Commonwealth it was put at 42 per
cent in aggregate. In various States, estimates of 70-80 per cent of the
land surface were mentioned. The systems of Crown leases introduced
into New South Wales and Queensland were particularly "complex
and diversified" (817):
"[The law] ... introduced a system of Crown leasehold tenures
which led to the whole of Australia being transformed in subsequent
(814) Transcript of proceedings, p 197.
(815) cf Constitution, s 51(xxxi); Mutual Pools & Staff Ply Ltd v The Commonwealth
(1994) 179 CLR 155; Georgiadis v Australian and Overseas Telecommunications
Corporation (1994) 179 CLR 297.
(816) See Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252.
p 162.
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decades into a patchwork quilt of freeholdings, Crown
leaseholdings, and Crown 'reserves' ...
The result in each State, as Millard has said of New South Wales,
is 'a bewildering multiplicity of tenures.' (818) Gone is the
simplicity of the modern English law as to tenures. Gone is the
senile impotence of the emasculated tenurial incidents of modem
English law. New South Wales and Queensland are in the middle of
an historical period in which the complexity and multifarious nature
of the laws relating to Crown tenures beggars comparison unless we
go back to the mediaeval period of English land law ... [I]n no
Australian State or dependant Territory are these laws nearly as
simple as is the modern English law as to tenures ...
Of all Australian States, Queensland is that in which the largest
fraction of total area is held by Crown tenants on various kinds of
non-perpetual Crown leasehold tenures (819), and in which there
exists a remarkable multiplicity of Crown leasehold tenures.
There are approximately seventy different kinds of Crown
leasehold and Crown perpetual leasehold tenures in
Queensland." (820)
The issues at stake in these proceedings are therefore important. If
the primary argument of the contesting respondents is accepted, this
Court's holding in Mabo [No 2J, that native title survived the
annexation of Australia to the Crown and the acquisition of the
Crown's radical title, is revealed as having little practical significance
for Australia's indigenous people over much of the land surface of the
nation. The vulnerability of native title to extinguishment by the fact
or necessary incidents of a grant of a pastoral lease over the land is
revealed in sharp relief. The effective operation of the Native Title Act
1993 (Cth) and like legislation, as well as claims under the general
law, recede to apply only to the balance of Australia's land surface
after the grants of estates, including freehold (821) and pastoral
leaseholds (without relevant reservations), are deducted. This is all the
more significant to indigenous peoples as the parts of Australia where
their laws and traditions (important to sustain native title) are most
likely to have survived include those where pastoral leases are likely to
exist. On the other hand, the issues are equally important for lessees
under pastoral leases, those laking under them, potentially those
holding other title to land, governments, mining interests and the
population generally.
(818) Millard on Real Property (NSW), 4th ed (1935), p 474.
(819) In 1947 it was estimated that only 8 per cent of Queensland had been alienated on
freehold tenure compared with 34 per cent in New South Wales and 54 per cent in
Victoria.
pp 161, 163.
(821) Mabo [No 2J (1992) 175 CLR I at 69, per Brennan J.
10. Finally, there is a further consideration of a practical kind. If the
threshold objection to the claim of the Wik and the Thayorre, upheld
by Drummond J, is set aside, these proceedings would be returned for
trial. The position of the parties would then be uncertain. The rights of
Aboriginal and non-Aboriginal Australians in respect of land affected
by pastoral leases would be left unclear: awaiting elucidation in this
and many other cases unless earlier resolved by valid legislation. This
would be so 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.
Mabo [No 2J does not resolve the claims
In judging what Mabo [No 2J decides, it is helpful to consider the
three possible doctrinal solutions in respect of grants of pastoral leases
which compete for acceptance:
(1) The exercise of sovereignty test: That once the Crown proceeded
in any way to convert its ultimate or radical title into some other
estate or interest in land, it exercised its sovereignty. In doing so,
necessarily and without anything more, it extinguished any fragile
native title interests in the land affected.
(2) The inconsistency of incidence test: That once the Crown's
ultimate or radical title was converted, by the exercise of
sovereignty into an estate or interest in land, the question became
whether that estate or interest, of its legal character, was
inconsistent with the continuance of native title in the land. The
question was not whether the estate or interest 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. The issue was one of legal theory, not
detailed evidence.
(3) The factual conflict test: That the issue is in every case one of
actual or practical inconsistency between the estate or interest
conferred in the land (in this case the pastoral lease executed
pursuant to statute) and the actual exercise of surviving native
title rights. If, in actuality, the two may be reconciled, the native
title rights are not extinguished. They survive as a continuing
burden on the Crown's radical title.
Much of the argument in the Federal Court, and in this Court,
concerned a suggestion that the decision in Mabo [No 2J, either in the
language of the majority reasons or by logical inference from what
was there held, required the result to which Drummond J gave effect.
This was that the grant of pastoral leases under the relevant
Queensland legislation, without more (822), extinguished any native
(822) There being no relevant reservation of Aboriginal rights which could have the
consequence of preserving native title, expressed in or able to be implied from
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title right which the Wik or the Thayorre had previously enjoyed in
respect of the Crown land the subject of the leases. In so deciding,
Drummond J held that he was bound by the majority decision of the
Ful1 Federal Court in the Waanyi Case (823). There was no basis for
holding that any of the leases involved in the Wik or Thayorre claims
were distinguishable from the pastoral lease considered in the Waanyi
Case. Because alI of the leases granted exclusive possession of the
areas specified in them it necessarily fol1owed that the grant of such
interests extinguished the native title rights of the Wik and the
Thayorre.
In the Waanyi Case (824) Hil1 J, with whom Jenkinson J agreed on
this point (825) concluded that the issue was resolved by the reasoning
of this Court in Mabo [No 2]. As this is also the ultimate foundation of
Drummond J's conclusion in this case, it is appropriate to note the
reasoning (826):
"There was agreement by the majority of the court that the grant
of a freehold title necessarily operated to extinguish native title.
Once it was extinguished it could not be revived. The matter
depended not on subjective intention but, as Brennan J
observed (827) on 'the effect which the grant has on the right to
enjoy the native title'. At that page his Honour said: '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.'
Later his Honour referred to the grant of interests in land
inconsistent with the right to continued enjoyment of native title ...
The exposition given by Deane and Gaudron JJ is slightly
different from that of Brennan J ...
However, it is clear that [they] were of the view that a lease
would operate to extinguish native title. Thus their Honours
said (828): '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 ... ' "
(822) conI
either the applicable Queensland Acts, the relevant Executive Acts of the
Queensland Government or the terms of the leases involved. See Wik Peoples v
Queensland (\ 996) 63 FCR 450 at 480-481,483-487, 488.
(823) (\995) 61 FCR I.
(824) (1995) 61 FCR I at 55-56.
(825) Waanyi Case (\995) 61 FCR I at 14.
(826) Waanyi Case (\995) 61 FCR I at 55.
(827) Mabo [No 2J (\992) 175 CLR I at 68.
(828) Mabo [No 2J (\992) 175 CLR I at 110.
Whilst acknowledging that the opinions extracted "may strictly be
dicta", Hi1l J regarded them as "of the highest authority" and adopted
them (829).
Convenient as it would be if it were otherwise, I cannot accept that
the cited passages relied on from Mabo [No 2J, other passages referred
to, or the conclusions inherent in the majority reasoning require the
conclusion that the grant by the Crown of any leasehold interest in
Crown land necessarily extinguishes native title in that land.
There were two leases involved in the decision in Mabo
[No 2J (830). The first was one of two acres of land on Mer Island in
the Murray Island group. This had been granted by the Crown to the
London Missionary Society in 1882. It was for a term of years. The
second lease by the Crown was granted to two non-Islanders over the
whole of the islands of Dauar and Waier, for a term of twenty years
for the purpose of establishing a sardine factory. The latter lease
contained a condition that the lessees should not obstruct, or interfere
with, the use by Meriam people of the islands for gardens and the
surrounding waters for fishing.
In Mabo [No 2J, the consequences of the Crown's grants of the two
leases constituted an issue subordinate to the main questions which
this Court had to determine. It is unsurprising, therefore, that the Court
withheld conclusive answers on the effect of leases on the survival of
native title. Given the great number and variety of Crown leasehold
interests in Queensland law (831), the decision in Mabo [No 2J would
not, in any case, have provided a conclusive answer to the effect of a
pastoral lease on native title, unless the first of the doctrines stated
above had been clearly embraced. If the leases described in Mabo
[No 2J were sufficient to evidence the exercise of sovereignty and,
without more, to expel any residual native title, the same logic would
apply to every leasehold interest, including pastoral leases. The
reasoning offered by the Court in Mabo [No 2J does not uniformly
sustain this thesis. The orders of the Court are inconsistent with it.
The passage from the reasons of Brennan J in Mabo [No 2J (832),
partly extracted above by Hill J in the Waayni Case (833), deserves to
be cited in full because it was the linchpin of much of the argument of
the contesting respondents:
in respect of the same land necessarily extinguishes the native title.
(829) Waanyi Case (1995) 61 FCR 1 at 55.
(830) (1992) 175 CLR I at 71-72.
p 163. There were about seventy different types of Crown leasehold at the time of
this article.
(832) (1992) 175 CLR I at 68.
(833) (1995) 61 FCR I at 55.
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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.' ,
As I read this passage, it contains the seeds of each of the three
theories stated above. However, it cannot be reconciled with the first
theory because, by that theory, any exercise by the Crown of
sovereignty in respect of the land, however slight, would necessarily
be inconsistent with native title rights and would extinguish them. This
would certainly have been so in respect of the leases discussed in
Mabo [No 2]. It would even have been so in respect of the conversion
of the Crown's radical title to the creation of a reservation for public
purposes over the land.
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 second
theory. 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] (834)
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 (835) 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. There are dicta in the
reasons of Deane and Gaudron 11 (836) to the effect that an
unqualified grant of an inconsistent estate, whether in fee or by a lease
conferring a right to exclusive possession, could extinguish native title.
But their Honours clearly rejected the first theory propounded by
observing that the lease of two of the islands for a term of twenty
years for the purpose of establishing a sardine factory did not of itself
extinguish native title rights. Nor did it have any continuing adverse
effect upon native title (837). Toohey J agreed that the issue of the
effect of the leases did not have to be determined in Mabo
[No 2] (838).
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]. The
reasoning of all Justices in the majority appears to be inconsistent with
the first theory which I have indicated. Moreover, as Lee J pointed out,
in dissent, in the Waanyi Case (839) when it was before the Full
Federal Court:
"If the act of reservation by the Crown of a discrete area of
Crown land for the express purpose of dedicating it for use as a
school, courthouse or public office, or the appropriation and use of
Crown land if that use is consistent with the continuing current
enjoyment of native title does not extinguish native title (840), there
must be ample scope for the argument that the grant of a statutory
leasehold interest by the Crown, in the form of a pastoral lease over
waste land, is not intended to exclude concurrent enjoyment of
native title and to extinguish that title."
Once one has descended to the particularity of the facts as to
whether a school, courthouse or other public building has been erected
on the land or not, attention has shifted from consideration of pure
(834) (1992) 175 CLR 1 aI15-16.
(835) Maho [No 21 (1992) 175 CLR I at 217.
(836) Moho [No 2J (1992) 175 CLR 1 at 110.
(837) Moho [No 2J (1992) 175 CLR 1 at Ill.
(838) (1992) 175 CLR I at 197.
(839) (1995) 61 FCR 1 at 29.
(840) Maho [No 2J (1992) 175 CLR I at 70.
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legal theory to a consideration of factual inconsistency and the state of
the evidence.
Although the discussion of the effect of the leases in Mabo [No 2J
is helpful as identifying some of the problems which are presented by
the rather different leases in question in the present claims, Mabo
[No 2J does not provide the solutions. It was understandable that Hill J
(with the concurrence of Jenkinson J) in the Waanyi Case (841) should
have turned to the dicta of Brennan J about the leases in Mabo [No 2J
to seek analogies for the pastoral leases competing with the Waanyi
claim. However, I prefer the analysis of Lee J in that case (842). Mabo
[No 2J failed to resolve the basic questions. That is why some of them
remain to be decided in these proceedings.
Pastoral leases
It is useful to record, briefly, something of the history of the
emergence of pastoral leases in Queensland. As a result of the
different patterns of availability and utilisation of land in England,
such leases were unknown in that country. They are creatures of
Australian statutes (843).
Moves to depasture stock outside the concentrated settlements in
New South Wales first began without official sanction in the late
1820s. They continued in the following two decades. So-called
"squatters" simply moved onto land unoccupied by other squatters
and took possession of that land without any right or title to it (844).
Faced with this fait accompli, the New South Wales legislature
enacted the "Squatting Acts", instituting a system of pastoral
licences (845). For a fixed annual licence fee holders of such licences
were pennitted to occupy land outside the settled districts for pastoral
purposes. The squatters objected to the intrusion into their de facto
activities. The Government was concerned about uncontrolled activi-
ties on Crown land, particularly where the land was acquired without
payment, unsurveyed and beyond legal and administrative con-
trol (846). Hence the Crown Lands Unauthorised Occupation Act 1839
(NSW) established a border police force "for the mutual protection
(841) (1995) 61 FCR Lat 55.
(842) Waanyi Case (1995) 61 FCR I at 24-29.
(843) See Reynolds, "Native Title and Pastoral Leases" in Stephenson and Ratnapala
(eds), Maho: A Judicial Revolution (1993); Yandama Pastoral Co v Mundi Mundi
Pastoral Co Ltd (1925) 36 CLR 340 at 353, per Isaacs J.
(844) Fry. "Land Tenures in Australian Law", Res Judicatae, vol 3 (1947) 158, at
p 161. See also Roberts, History of Australian Land Settlement 1788-1920 (1968),
P 179.
(845) The Crown ulIlds Unauthorised Occupation Act 1836 (NSW) was operative from
I January 1837 until 31 December 1838. It was amended by the Crown ulIlds
Unauthorised Occupolion Act 1838 (NSW) which commenced operation on
I January 1839.
(846) Fry, "Land Tenures in Australian Law". Res Judicalae, vol 3 (1947) 158. at
pp 160-161.
and security of all persons lawfully occupying or being upon the
Crown lands beyond the limits allotted for location ...". That Act
clearly contemplated Aboriginals "being upon" Crown lands, includ-
ing those lawfully occupied by the holders of licences (s 25).
Regulations made in 1839 provided that such licences could be
cancelled if the licensee were convicted "of any malicious injury
committed upon or against any aboriginal native or other person
... " (847).
By the Sale of Waste Lands Act 1842 (Imp) (5 & 6 Vict c 36), the
Imperial Parliament brought all grants of Crown land under legislative
supervision. In 1846, the Imperial Parliament enacted the Sale of
Waste Lands Act Amendment Act 1846 (Imp) (9 & 10 Vict c 104). By
s 1, it was made lawful for Her Majesty to "demise for any Term of
Years not exceeding Fourteen, to any Person or Persons, any Waste
Lands of the Crown in the Colonies ... ". This Act was implemented
in New South Wales by Order in Council of 9 March 1847 (848). By
Ch II s 1 of the Order in Council, the Governor was empowered to
grant leases of land in the unsettled districts for any term not
exceeding fourteen years for pastoral purposes. There was nothing at
all in any of the foregoing legislation, unless it was that the interests
granted were called "leases" and "licences", which evidenced an
intention of the Crown to grant possession over the lands in question
to the exclusion of the Aboriginal subjects of the Crown. Contempor-
ary documents, including communications by Earl Grey, Secretary of
State for the Colonies, to the Governor of New South Wales, Sir
Charles FitzRoy, indicate that this was not intended, at least by the
Imperial authorities (849):
"[I]t should be generally understood that Leases granted for this
purpose give the grantees only an exclusive right of pasturage for
their cattle, and of cultivating such Land as they may require within
the large limits thus assigned to them, but that these Leases are not
intended to deprive the Natives of their former right to hunt over
these Districts, or to wander over them in search of subsistence, in
the manner to which they have been heretofore accustomed, from
the spontaneous produce of the soil except over land actually
cultivated or fenced in for that purpose." (850)
A further Order in Council of 18 July 1849 (851) was declaratory of
existing rights under the Sale of Waste Lands Act Amendment Act 1846
and the Order in Council of 9 March 1847. Thereafter, pastoralists
(847) New South Wales Government Gazette, 22 May 1839.
(848) Supplement to New South Wales Government Gazette. 7 October 1847, at
pp 1070-1077.
(849) Despatch No 24. Earl Grey to Sir Charles FitzRoy II February 1848; Despatch
No 134, Earl Grey to Sir Charles FitzRoy, 6 August 1849_
(850) Despatch No 24, Earl Grey to Sir Charles fitzRoy, II February 1848_
(851) New South Wales Government Gazette. 26 April 1850_
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outside the settled districts of the colony held their lands on leases of
eight or fourteen years duration, for low annual rents. A right of
resumption was retained by the Crown and a right of pre-emption of
the fee simple of the land, or part thereof, was granted to the Crown's
leasehold tenants.
These developments provide the common starting point for the
evolution of Crown leasehold tenure, including pastoral leases, in what
are now the States of New South Wales, Queensland, Victoria and
Tasmania (852).
In February 1842, land in the Moreton Bay District was first opened
for free settlement (853). The laws applicable were those of the colony
of New South Wales of which it was then part. In May 1842 a
Commissioner for Crown Lands for the Moreton Bay District was
appointed pursuant to the Crown Lands Unauthorised Occupation Acts
1839-1841 (854). As the new settlement expanded, pressure grew for
other districts to be opened up for the use of land within them for
pastoral purposes. The occupation of waste lands of the Crown for
such purposes initially mirrored the unauthorised expansion which had
taken place elsewhere in the colony.
Self-government was granted to New South Wales in 1855. In June
1859 Queensland separated from New South Wales (855). However,
the laws of New South Wales, including those regulating the "sale,
letting, disposal and occupation" of wastelands of the Crown,
remained in force until repealed or varied by the legislature of the new
colony (856). That legislature had the power to make laws with respect
to land use. Thereafter, the Queensland Parliament adopted and
elaborated the form of pastoral lease which had earlier evolved in New
South Wales. There followed, up to recent times, a large number of
statutes with provisions for, or affecting, pastoral leases (857). The
(852) Fry, "Land Tenures in Australian Law", Res Judicatae. vol 3 (1947) 158. at
p161.
(853) Proclamation 10 February 1842, Queensland Government Gazelle. 15 February
1842. p 267.
(854) Government Notice. Queensland Government Gazelle. 10 May 1842. pp 690-691.
(855) Order in Council. 6 June 1859. Queensland Government Gazelle. 10 December
1859. pp 1-3. The 1847 and 1849 Orders in Council were repealed by Queensland
legislation in 1860 and 1868: see Unoccupied Crown Lands Occupation Act 1860
(Q). s 2; Crown umds Alienation Act 1868 (Q). s I. Such provisions had the
effect of repealing the clauses expressly permitting Aboriginal access.
(856) Order in Council. 6 June 1859. Queensland Government Gazelle. 24 December
1859. pars 17,20.
(857) ego Unoccupied Crown Lands Occupation Act 1860 (Q); Tenders for Crown umds
Act 1860 (Q); Occupied Crown umds Leasing Act 1860 (Q); Pastoral Occupation
Act 1862 (Q); Pastoral Leases Act 1863 (Q); Pastoral Assessment Act 1864 (Q);
Leasing Act 1866 (Q); Crown Lands Alienation Act 1868 (Q); Pastoral Leases Act
1869 (Q); Sellied Pastoral Leases Act 1870 (Q); Crown Lands Alienation Act
Amendment Act 1876 (Q); Sellied Districts Pastoral Leases Act 1876 (Q); Crown
Lands Act 1884 (Q); Land Act 1897 (Q); Pastoral Leases Act 1900 (Q); Pastoral
Holdings New Leases Act 1901 (Q); Land Act 1902 (Q); Land Act 1910 (Q); and
point of referring to them is to demonstrate the extent to which the
Queensland Parliament regulated the incidents of pastoral leases in the
colony. Most of the statutes contained express provisions conferring
rights on third parties over a pastoral lease, inconsistent with the
submission that the lease conferred rights of exclusive possession upon
the lessee.
By the successive Queensland Acts, rights to possession were
subject to various exceptions. Thus, the Land Act 1910 (Q), pursuant
to which the instrument of lease of the Mitchellton Pastoral Holding
was granted, provided for reservations of a right of access for the
purpose of the search for, or working of, any mines of gold or
minerals (s 6(3)); the right of a land ranger to enter a holding to "view
the same and observe the manner of residence or occupation"
(s 14(3)); a right of entry to a person authorised by a Minister to
survey, inspect or examine land the subject of a lease (s 14(4)); a
power of the Commissioner appointed under the Act to cause
inspections of all land within the District of the lease (s 139); a
provision to grant a licence to cut timber on leasehold land or to
remove stone, gravel, clay, guano or other material (s 199(1)); a right
of a licensee to use animals and vehicles to remove timber or materials
and to depasture such animals (s 199( I)); a right in a person duly
authorised by law to cut or remove timber or material without
restriction by the pastoral lessee (s 200); and a right of pasturage for
travel1ing stock (s 205). Such rights enjoyed by third parties, are not
confined to the Land Act 1910 (Q). Many of the statutes referred to
above contain similar provisions. Their existence gave rise to
competing submissions in this appeal. For the Wik and the Thayorre,
they showed that the Queensland Parliament had never intended, by
cal1ing a pastoral lease a "lease", and using other terminology apt to
describe a lease at common law, to assimilate the special kind of
statutory lease created, to a lease at common law. The fundamental
element explained in Landale v Menzies (858) was missing, viz a
"contract for the exclusive occupation of land for a determinate
period, however short ... " For the contesting respondents, however,
the very need, in the statutes, expressly to reserve rights of entry and
inspection demonstrated an acceptance that, in the absence of such
reservations, the pastoral lease would, in law, permit exclusion of
anyone on the ground that that was the character of a lease. The latter
view enjoyed the support of early Queensland Supreme Court
(857) cont
Land Act 1962 (Q). There were many more statutes of relevance to pastoral leases
and their incidents.
(858) (1909) 9 CLR 89 at 100-101, per Griffith CJ; see also Radaich v Smith (1959) 101
CLR 209 at 222: Chelsea Investments Pry Ltd ,. Federal Commissioner (!f
Taxation (1966) 115 CLR I at 8.
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decisions (859) written, of course, without any need to address the
problem presented by the subsequent decision in Mabo [No 2].
None of the foregoing Queensland legislation expressly abolished
Aboriginal native title. This is scarcely surprising, having regard to the
then understanding of the law, that such title had not survived
annexation of Australia to the Crown. Nor did the legislation expressly
provide for the curtailment or limitation of Aboriginal rights, or any
manner of dealing with the land from which could be inferred the
purpose of abolishing Aboriginal native title. Again, this is
unsurprising, in light of the understanding of Aboriginal legal rights at
the time, the provisions in limited legislation about particular aspects
of Aboriginal policy and the then prevailing policy of ignoring
Aboriginals, leaving them as far as possible untouched by Australian
law in the expectation, and hope, that they would become "civilised",
assimilated or otherwise disappear as a "problem" (860).
It now falls to legislatures and courts to work out the consequences
of the failure of this earlier social and legal strategy. There is an
inescapable element of artificiality, in looking back over Australian
legal history, which developed upon a particular hypothesis about
Aboriginal legal rights, and endeavouring to reinterpret that history
with the knowledge afforded by Mabo [No 2]. But it is important to
understand that the decision in Mabo [No 2] was not a legislative but a
judicial act. It did not declare that thenceforth native title would be
recognised. It held that native title had always existed (861). It had
survived the advent of the sovereignty of the Crown in Australia. It
was recognised by the common law. It would be enforced unless
clearly extinguished. Thus the search must now be conducted to find
indications of extinguishment. It is a search conducted at a
disadvantage because it relies upon legal materials written in a
completely different legal environment of contrary understandings and
beliefs. One of the founders of the Australian Constitution, Alfred
Deakin, stated that the judicial method enabled "the past to join the
future, without undue collision and strife in the present" (862). In this
case the present must revisit the past to produce a result, wholly
unexpected at the time, which will not cause undue collision and strife
in future.
(859) eg, Wi/dash v Brosnan (1870) I QCLLR 17 at 18; Heness v Bell (1906) 3 QCLLR
47 at 49-50. See also R v Tomkins [1919] St R Qd 173 at 190, 199.
(860) See Reynolds, Dispossession Black Australians and White Invaders (1989), Ch 7.
(861) Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR I at 15. cf Bropho v
Western Australia (1990) 171 CLR I at 23; Mason, "Prospective Overruling",
Australian Law Journal, vol 63 (1989) 526.
(862) Second Reading Speech on the Judiciary Bill, House of Representatives,
Parliamentary Debates (Hansard), 18 March 1902, p 10968.
The pastoral leases in this case
The Holroyd River Holding covers an area of 2,830 km
2
The
Mitchellton Holding, expressed in the old measurements, is said to
cover an area of 535 square miles (approximately 1,385 km
2
).
The first Mitchellton lease was issued under the Land Act 1910 (Q)
(the 1910 Act) on 1 April 1915. However, it was forfeited for non-
payment of rent in 1918. The second Mitchellton lease was also issued
under that Act in 1919. It was surrendered in 1921. Possession was
never taken by the lessee under either of these two leases. Since
12 January 1922, the land, formerly the subject of the Mitchellton
leases, has been reserved for the benefit of Aboriginals, held for and
on their behalf. The Holroyd River Holding lease was originally issued
under the 1910 Act in 1945. That lease was surrendered in 1973. A
new lease was issued on 27 March 1975 under the Land Act 1962 (Q)
(the 1962 Act). The lease was issued to the same persons for a term of
thirty years with a commencing date of 1 January 1974.
The lease documents for the Holroyd River Holding are instructive.
They show that there was no irrigation on the property. It was served
by natural waters only. It was said not to be fit for fattening cattle. It
was purely suitable for breeding cattle. Its carrying capacity in fair
seasons was approximately one beast to 60 acres. This could be
increased by fencing and the supply of additional waters but the cost
of doing that was unknown and the lessees were recorded as
displaying no intention of doing so. The cattle carried on the holding
were running under open range conditions. The lessees disclosed that
there were no improvements whatsoever on the property. In answer to
a question concerning the nature and estimated cost of any
improvements proposed to be made they stated "Nil at present". As to
land "cultivable or suitable for the introduction of pasture", the
lessees stated that there was "Nil". There was no accommodation or
amenities for employees on the property at the time of the first return.
When the new lease was issued under the 1962 Act in 1975, certain
conditions were imposed. Within five years of the commencement of
the new lease the lessees were obliged to construct a manager's
residence with quarters for five men and a shed for machinery. They
were also to build an airstrip and to erect 90 miles of internal fencing
with some yards, a dip and some dams. From a report in 1984 from
the relevant government officer who inspected the property, it is clear
that there had been little change. The number of stock depastured upon
the land was estimated at 1,000 head. The property had been partly
destocked to restrain an outbreak of tuberculosis. Its carrying capacity
at the time of the inspection was reduced to one beast to 55 ha. The
holding was characterised as "Not permanently occupied". As to
employees, it was stated that "No one employed at the time of
inspection though usually about twelve stockmen are mustering the
block in the dry season". None of the buildings required by the above
conditions had been built, although an airstrip had been constructed.
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No seed production area had been established nor was any planned.
No boundary fencing had been erected and the lessee did not intend to
erect any.
By 1988, a similar inspection report disclosed that the only cattle on
the land were feral cattle. There were no branded cattle and only about
I ()() unbranded. The only occupants of the land, so far as the lessee
was concerned, were two sleeper cutter gangs of six men and the
contract musterers in the dry season. A machinery shed had been built.
But no residential quarters for employees had been constructed.
Timber cutters, using their own money, had erected a toilet and shower
system. They were recorded as intending to build a house on the
holding for their own use. The introduction of helicopter mustering
had, in the opinion of the inspector, reduced the necessity to insist on
permanent mustering yards. The openness of the country afforded the
cattle little means of escape or hiding.
The picture painted of the two pastoral leasehold properties in
question in the present case is, therefore, somewhat bleak. Each of
them, in remote parts of Northern Queensland, offered to the lessee
rudimentary and apparently unpromising conditions for depasturing
cattle and conducting associated activities. So unpromising was the
first Mitchellton lease that it endured for only three years and was
forfeited for non-payment of rent. The second lease lasted for an even
shorter period before it was surrendered. On 14 January 1922, by
Order in Council of two days earlier, the Mitchellton Holding was
reserved for the use of Aboriginal inhabitants of Queensland.
According to the evidence, neither of the Mitchellton lessees entered
into possession. The Thayorre assert that they never left their ancestral
lands. Members of the Thayorre continued living on the land in their
traditional way. They would have had no reason (there having been no
entry) even to be aware of the grant of any pastoral lease over the
land. Soon after the surrender of the lease in October 1921, a reserve
was created for them. Given that it is now established that their native
title survived the annexation of all Australian land to the Crown, it
would require a very strong legal doctrine to deprive them of their
native title. Especially because, so far as they were concerned, nothing
of relevance had occurred to their land, save for (as it was put in
argument) "the signing of documents by people in Brisbane".
The position of the Holroyd River Holding is not so extreme a case.
But from the conditions which are described in the pastoral lease
documents and from the successive inspectors' reports, it seems a
reasonable inference that traditional Aboriginal life would have been
little disturbed by the grant of the pastoral lease in that instance. The
number of persons entering the land was small and mostly seasonal.
Thc physical improvements were virtually non-existent. In such a large
remote terrain, for most of the year, the Wik could go about their lives
with virtually no contact with the lessee or the tiny number of
stockmen, wood gatherers and occasional inspectors who entered their
domain or, more recently, in the case of helicopter pilots engaged in
mustering, who flew over it.
To the contesting respondents, these facts were irrelevant. They
were not necessarily typical of all pastoral leases in Queensland, still
less elsewhere in Australia. The issue to be resolved was one of legal
theory. It was the resolution of a conflict of legal titles which was to
be decided on legal principles determining legal rights: not factual
evidence regarding land use. I have nevertheless described the
evidence as to the use of the land in the pastoral leases in this case
because the emerging facts illustrate vividly the kind of practical
physical conditions for which pastoral leases were created by the
Queensland Parliament. Those facts also demonstrate the very limited
occupation of the land which was expected and regarded as normal
under pastoral leases. They show how Aboriginal law and tradition
could readily survive in such an environment because of the very
limited contact which was inherent in these pastoral leases, between
Aboriginals and those connected with the lessee. The understanding of
these facts helps to provide the context against which the application
of legal theory must be tested in this case. It also helps to illustrate,
and describe, the nature of the pastoral leases which the successive
enactments on pastoral leases were designed to permit. They are a far
cry from the situation in settled and occupied areas of Australia where
the extinguishment of native title has a practical and necessary quality
sustaining a legal determination of extinguishment by reference to the
legal characteristics of common law or residential leases. In pastoral
leases of the kind described in the evidence in this case, talk of
"exclusive possession" or "exclusive occupation" has an unreal
quality. It may be what the law imputes to the lease at common law.
But it would require very clear law to drive me to such an apparently
unrealistic conclusion. The common law tends to abhor unreality, even
when it is presented as legal doctrine.
Mere exercise of sovereignty doctrine rejected
I now return to the three theories which were suggested as
potentially providing the solution to a conflict between the grant of an
estate or interest in land under Australian law and native title as a
burden on the Crown's ultimate or radical title.
The first theory was one which postulates the extreme fragility and
vulnerability of native title. Under this theory, any action, now
necessarily by legislation, whereby the Crown's radical title is
expanded into an exercise of dominium in respect of the land,
necessarily expels native title. This is so, whatever the estate or
interest granted. It does not depend upon the precise legal features of
that estate or interest.
This theory rests upon the political notion that in the one nation
there cannot be two sovereigns. Specifically, there cannot be two
sources of title to land. All land is held of the Crown, otherwise the
Crown's claim to sovereignty is put in doubt. Even native title is, upon
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this View, held of the Crown, to the extent that the common law
recognises and enforces it. Thus where, in effect by legislation, the
Crown grants any estate or interest in land (however limited in rights
and time), by the very act of doing so it has exercised its sovereignty
in a way that is inconsistent with the common law's recognition of
native title, derived from a different source, in respect of the same
land. A legal metamorphosis takes place the instant that the paramount
or radical title is changed to a dealing in the land. When that occurs
the Crown's undoubted sovereignty has been exerted in a way that
does not permit the survival of a legal right originating outside the
ordinary legal system. To the complaint that it would be extraordinary
that the rights of Aboriginal peoples in Northern Queensland, possibly
enjoyed for millennia, could be extinguished by the actions of officials
in Brisbane of which they were completely unaware, the answer is
given: that is the way that sovereign powers of a modern state are
exercised. Radical title is not a real title for property purposes. It is
more in the nature of a political notion and in that sense a legal
fiction (863). But property rights of any kind are not fictional. They
concern the interests of individuals. Where they involve estates or
interests in land, their recognition and protection by the legal system is
important to the social and economic stability and peace which it is the
function of the sovereign to protect and enforce. Thus, where radical
title expands through the exertion of sovereignty, to the extent of
granting a legal estate or interest in land, that fact alone is sufficient to
expel forever native title in such land. Thereafter, such title as exists
must be derived from any further exercise of the powers of the new
sovereign which has asserted its rights of sovereignty over the land.
On this theory, the grant of a pastoral lease in respect of any land,
being an exercise of the sovereign's powers in relation to that land,
necessarily extinguishes rights deriving from a competing legal system
unless, possibly, those other rights were expressly reserved or
exempted and that is not suggested here.
This theory was supported in argument by what was said to be the
logic of the explanation in Mabo [No 2J of the way in which, upon the
grant of a lease, the 'Crown's title is ... expanded from the mere
radical title and, on expiry of the term, becomes a plenum
dominium" (864). However, it is not consistent with the analysis of
the reasoning of any of the Justices in Mabo [No 2J; nor with the
(863) Mabo [No 2J (1992) 175 CLR I at 50: "[Rladicaltitle, without more, is merely a
logical postulate required to support the doctrine of tenure ... and to support the
plenary title of the Crown (when the Crown has exercised its sovereign power to
appropriate to itself ownership of parcels of land within the Crown's territory)."
See also Western Australia v The Commonwealth (the Native Title Act Case)
(1995) 183 CLR 373 at 422.
(864) Mabo [No 2J (1992) 175 CLR I at 68.
Court's holding in that case. Nor is it consistent with earlier analyses
of the Privy Council (865).
In the critical passage in the reasoning of Brennan J in Mabo
[No 2J (866), his Honour implies that it is not the grant of the lease, as
such, which has the effect of expanding the Crown's title "from the
mere radical title" to a "plenum dominium" but the acquisition of the
reversion expectant on the expiry of the leasehold term. This required
legal analysis of the consequences of the exercise of sovereign rights
in respect of each dealing in the land. So much is implied by the
passage which followed, discussing the case where the Crown grants
land in trust or reserves or dedicates land for public purposes. This
would also be an exercise by the Crown of its rights as sovereign. But
clearly it was not regarded by Brennan J as sufficient (without more)
to extinguish native title. That title remained a burden on the Crown's
radical title despite such exercise of sovereignty.
The first theory is not compatible with the authority of the Court in
Mabo [No 2]. The decision of the Court in that case introduced a new
and radical notion. It disturbed the previous attempts of the Australian
legal system to explain all estates and interests in land in this country
by reference to the English legal doctrine of tenure derived ultimately
from the sovereign as Paramount Lord of the colonies as he or she had
been in England after the Conquest (867). Now a different source of
title must be accommodated by the recognition of the continuance of
native title as a burden on the Crown's radical title. Something more is
needed to remove that burden, and to extinguish the native title, than a
mere exercise by the Crown of rights of dominium in respect of the
land. Native title might be subject to extinguishment. However, it is
not as fragile as the first theory propounded.
Factual inconsistency doctrine rejected
It is convenient to deal next with the third theory, viz that in order
to see whether native title, as recognised in Mabo [No 2J, had been
extinguished by a grant of an estate or interest in land said to be
inconsistent, it is necessary to examine the facts relating to the
exercise of rights under such estate or interest. I took this theory to be
inherent in the submissions for the Thayorre. Some support for the
proposition was derived from passages in the judgments of the Court
in Mabo [No 2]. For example, Brennan J, discussing the nature and
incidents of native title said (868):
(865) Catherine's Milling & Lumber Co v The Queen (1888) 14 App Cas 46 at 55;
Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401 at 409-
410; Amodu Tijani v Secretary. Southern Nigeria [1921] 2 AC 399 at 403.
(866) (1992) 175 CLR 1 at 68.
(867) Mabo [No 2J (1992) 175 CLR 1 at 46-47; see also Devereux and Dorsell,
"Towards a Reconsideration of the Doctrines of Estates and Tenure", Australian
Property Law Journal, vol 4 (1996) 30.
(868) Mabo [No 2J (1992) 175 CLR 1 at 58.
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"Native title has its origin in and is given its content by the
traditional laws acknowledged by and the traditional customs
observed by the indigenous inhabitants of a territory. The nature and
incidents of native title must be ascertained as a matter of fact by
reference to those laws and customs. The ascertainment may present
a problem of considerable difficulty ... It is a problem that did not
arise in the case of a settled colony so long as the fictions were
maintained that customary rights could not be reconciled 'with the
institutions or the legal ideas of civilised society' (869), that there
was no law before the arrival of the British colonists in a settled
colony and that there was no sovereign law-maker in the territory of
a settled colony before sovereignty was acquired by the Crown.
These fictions denied the possibility of a native title recognised by
our laws. But once it is acknowledged that an inhabited territory
which became a settled colony was no more a legal desert than it
was 'desert uninhabited' in fact, it is necessary to ascertain by
evidence the nature and incidents of native title."
By parity of reasoning, it was argued, the survival, persistence and
revival of native title under the Australian legal system, notwithstand-
ing a superimposed title from the Crown, was in every case a question
of fact. The Crown (acting under legislation) might have the power to
extinguish native title. Whether it had done so in the particular case
would depend, not upon theoretical possibilities discovered by an
examination of the nature of legal instruments, but by evidence
concerning the possible reconciliation or inconsistency of the two legal
regimes and the concurrent enjoyment of rights deriving from them, as
a matter of fact. It was the essence of the Thayorre's primary
submission that native title was title outside the common law. In its
nature, it had nothing whatever to do with the feudal system of
tenures. Because it had its own sources and integrity, it could not be
destroyed by a legal theory outside its own regime (870). It could
expire by factual circumstances: dispossession, acquisition, surrender
or abandonment. But even then it might later revive. The Australian
legal system might determine whether, and if so when, it would grant
recognition and enforcement to native title. But the title itself, being
derived from an entirely different legal source, would continue to exist
whatever the Australian legal system said, until it was acquired from,
or surrendered or abandoned by, the indigenous people themselves.
It was suggested that this theory would apply equally to native title
(869) In re Southern Rhodesia [1919] AC 211 at 233.
(870) For example, in Ceylon (as it was then called) the doctrine was accepted by the
courts, that until a change in land tenure was effected by a clear and deliberate act
on the part of the Crown, the interests derived before the acquisition of
sovereignty would be enforced: Hooker, Le[;al Pluralism - An Introduction to
Colonial and Neo-Colonial Laws (1975), P 467, citing Abeyesekera v Jayatillaka
(1932) 33 NLR 51.
in respect of land granted in fee simple as to land demised by lease,
including a pastoral lease. Dicta in Mabo [No 2J suggest that the grant
by the Crown of title in fee simple necessarily extinguishes native
title (871). That conclusion is compatible with earlier Privy Council
decisions explaining how native title could be lost "[b]y the will of
the Crown and in exercise of its rights" (872). The Thayorre did not
resile from their argument. Whether, in a particular case, native title
would be recognised by the common law was, for the Thayorre, a
question of fact to be answered by examining the current state of the
native title in order to see whether it could be reconciled with the
exercise of the competing title granted under Australian law. If it could
not, the latter would prevail, simply because of the ascendancy and
power of the Australian legal system. The native title would continue
to exist. It would simply not be enforceable in an Australian court.
Whilst this submission has certain attractions, it is supported neither
by legal authority applicable to this country nor by legal principle or
policy. It may be conceded that some of the passages in the reasoning
of Mabo [No 2J can be read to suggest that, in a particular case, where
native title is claimed and extinguishment is asserted, the task is to
find the factual, as distinct from the legal, content of a supervening
title from the Crown. The contemplation that native title could survive
the expansion of the Crown's radical title into a grant of land on trust
or for reserves (873) or is lost only when a school, a courthouse or a
public building is erected on such land (874), may be interpreted as
suggesting that the search in each case is for evidence about the factual
use of the land. However, this is not the legal principle which I take
Mabo [No 2J to establish. What is in issue is title in respect of land. It
is therefore a question about the existence or otherwise of rights of a
legal character in respect of the land. As such, it is not a question
about the intention or actions of the Aboriginal parties, any more than
of the Crown or governmental officials. The question is not whether
indigenous people have in fact been expelled from traditional lands but
whether those making claim to such lands have the legal right to
exclude them. The parties have come to the Court for the elucidation
of their legal rights. I read the passages in Mabo [No 2J as saying no
more than that facts will generally have to be explored in order to
decide whether claims to native and other title can be estab-
lished (875). The proof of native title by detailed evidence is necessary
because such title, unlike Australian title from the Crown and other
title under Australian law, is not inscribed in official records.
The theory accepted by this Court in Mabo [No 2J was not that the
(871) Mabo [No 2J (1992) 175 CLR 1 at 68, 110.
(872) In re Southern Rhodesia [1919] AC 211 at 235.
(873) Mabo [No 2J (1992) 175 CLR 1 at 68.
(874) Mabo [No 2J (1992) 175 CLR 1 at68.
(875) Mabo [No 2J (1992) 175 CLR 1 at 58-59.
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native title of indigenous Australians was enforceable of its own power
or by legal techniques akin to the recognition of foreign law. It was
that such title was enforceable in Australian courts because the
common law in Australia said so (876).
To suggest that the actual conduct of a pastoralist, under a pastoral
lease, could alter the rights which the pastoralist and others enjoyed
under the lease, would be tantamount to conferring on the pastoralist a
kind of unenacted delegated power to alter rights granted under the
Land Acts. This cannot be. It would introduce a dangerous uncertainty
in the entitlements to land of all people in Australia to adopt such a
principle. The search must therefore be one which is first directed at
the legal rights which are conferred on a landholder by the Australian
legal system. This is because legal title and its incidents should be
ascertainable before the rights conferred are actually exercised and
indeed whether they are exercised or not. In some cases the grant of
such legal rights will have the inevitable consequence of excluding any
competing legal rights, such as to native title. But in other cases,
although the native title may be impaired, it may not be extinguished.
The answer is to be found in the character of the legal rights, not in the
manner of their exercise (877).
Arguments for extinguishment of native title
I therefore return to the second theory about the extinguishment and
impairment of native title rights, which is the one that I take Mabo
[No 2J to have established and which I would apply in this case. The
question is whether the legal character of the pastoral leases in the
present case, discernible from their terms and the rights afforded under
them, had the necessary legal effect of extinguishing the native title
claimed by the Wik and Thayorre.
Several strong arguments were marshalled to support
extinguishment:
1. As a matter of authority, the opponents to the claims of the Wik
and the Thayorre relied heavily on the passage in the reasons of
Brennan J in Mabo [No 2J already cited (878). Even if this were not
part of the holding in the case, binding until reversed or qualified, it
represented the only consideration by this Court of the effect of the
grant of a lease on native title (879). In the application ::nd
development of this body of law, it is highly desirable that consistency
and predictability should be maintained. Moreover, it is undesirable
(876) Mabo [No 2J (1992) 175 CLR I at 59, 61.
(877) See Mabo [No 2J (1992) 175 CLR I at 110, per Deane and Gaudron 11 who note
that common law native title will be extinguished by a lease "conferring the right
to exclusive possession".
(878) Mabo [No 2J (1992) 175 CLR I at 68.
(879) Deane and Gaudron 11 also contemplated that, at least in some circumstances, the
grant of a leasehold with exclusive possession could effect extinguishment. See
Mabo [No 2J (1992) 175 CLR I at 110.
that the basic tenets of Australian land law should be disturbed, more
than is absolutely necessary, by the belated recognition of native title.
2. It was argued that the absence of express abolition of native title
by the Land Acts under which the pastoral leases in question were
granted was not important for several reasons:
(a) Both the Land Acts in question and the instruments granting the
relevant interests are expressed in terms of a "lease". A lease is a
legal interest well known to the common law. Where a word such as
"lease" is used in the Acts of Parliament, it should be presumed that
it was the purpose of the legislators to use the word in its ordinary
meaning. That meaning includes the concept that it is the intention of
the parties that the grantee will be entitled to exclusive possession of
the property, the subject of the lease. Where it is otherwise, what is
granted is a licence and not a lease (880). Conceding that the word
"lease" is sometimes used where "licence" is meant (881), it should
nonetheless be assumed, in the technical area of land law, the subject
of successive and detailed enactments of the Queensland Parliament,
that the drafters knew what a "lease" was in law and intended to use
the word in the technically accurate sense (882). Any doubts or
confusion which they may have had at an earlier historical time would
have been removed by decisions of the Queensland Supreme Court
before the 1910 and 1962 Land Acts were enacted and before the grant
of any of the pastoral leases in issue here (883). It is of the essence of
a "lease" in the ordinary meaning of that term, that it must be for an
estate or term less than the lessor has in the property. Otherwise, an
instrument which passes the entire interest of the grantor is a
conveyance or assignment and not a lease. It was this attribute of a
lease which was critical to the respondent's argument resting on the
reversion expectant (884). According to this notion, it was inherent in
the Land Acts (although not expressed in them) that, in order that it
might grant a lease to the lessee, the fundamental legal character of the
Crown's interest in the subject land must have changed. Its title had
"expanded from the mere radical title and, on the expiry of the term,
becomes a plenum dominium" (885). Such a metamorphosis was
implicit in, and necessary to, the Crown's capacity to found a grant of
a leasehold interest, including a pastoral leasehold under statute. Not
only was this an essential postulate to sustain the grant of a legal right
(880) umdale v Menzies (1909) 9 CLR 89 at 100-101.
(881) Radaich v SmiTh (1959) 101 CLR 209 at 222; OKeefe v Malone [1903] AC 365
at 377.
(882) American Dairy Queen (Q'ld) Ply LTd v Blue Rio Ply LTd (1981) 147 CLR 677
at 686; Minister for Lands and ForeSTS v McPherson (1991) 22 NSWLR 687
at 696-697, 712-713. cf O'Keefe v Malone [1903] AC 365 at 377.
(883) Wildash v Brosnan (1870) I QCLLR 17 at 18; Macdonald v Tully (1870) 2 QSCR
99 at 105-106; R v Tomkins [1919] St R Qd 173 at 190, 194-195, 198-199.
(884) Mabo {No 2J (1992) 175 CLR 1 at 68.
(885) Mabo {No 2J (1992) 175 CLR I at 68.
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called a "lease". It was equally necessary to explain the Crown's
interests, elsewhere reflected in the Land Acts, to protect the land and
to receive the reversion on expiry, forfeiture or surrender of the
lease (886). The successive Land Acts, by expanding the Crown's
dominium in order to sustain the grant of interests called "leases" had
necessarily moved from the "logical postulate" of a radical title to the
holding of an interest in the particular parcel of land which was
sufficient to expel any residual native title.
(b) Alternatively, or additionally, the lessee's entitlement to
exclusive possession which was itself sufficient to extinguish native
title in the land was supported by both general and specific references
to the instruments creating the pastoral leases and the Land Acts under
which they were issued. The instrument of lease under the 1910 Act is
titled "Lease of Pastoral Holding ... " The recital refers to the
entitlement of the lessee to "a Lease" for a specified "term" and at a
yearly payment called "rent". The operative words of the instrument
are expressed in the name of the sovereign to "Demise and Lease [the
specified lands] unto the said [lessee] and [its] lawful assigns". This is
the normal language of a lease. The provisions under the 1962 Act
were almost identical. They tend to reinforce the suggestion that the
interest being granted was intended to be an ordinary leasehold
interest, although for a specific objective, namely "for pastoral
purposes only". To the language of the instrument must be added the
language of the Act itself. Thus s 6 of the 1910 Act provides for the
Governor in Council, in the name of the sovereign to "grant in fee-
simple, or demise for a term of years, any Crown land within
Queensland". Section 6(2) should be noted. It provides:
"The grant or lease shall be made subject to such reservations
therein stated."
(c) Far from being an indication that the interest granted by a
pastoral lease under the Land Acts was of a different character from a
lease at common law, the several exceptions envisaged by the Land
Acts were called in aid to reinforce the argument that the Land Acts
were thereby contemplating that, with the "lease", came the ordinary
common law entitlement to exclusive possession from which
derogations had to be specifically authorised (887).
(886) Land Act 1910 (Q), ss 100, 103, 106, 108, 122, 130, 135. cf Land Act 1962 (Q),
S 122.
(887) cf Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR
199 at 213; affd (1975) 132 CLR 463. See also Glenwood Lumber Co v Phillips
[19041 AC 405 at 408-409.
In these different ways, the arguments of extinguishment were
advanced. At the highest level of abstraction, by the assertion of
plenum dominium converting the Crown's radical title to a reversion
expectant incompatible with the survival of native title. At a lower
level of abstraction, by the language of the Land Acts and the relevant
pastoral leases, affording legal rights of exclusive possession to the
entirety of the land referred to in the leases. At the lowest level of
abstraction, by reference to the detailed provisions of the Land Acts, it
was argued that the rights conferred by the pastoral leases were
incompatible with the continuance of native title. Such title was
therefore extinguished (888).
Significance of non-entry
It will be remembered that unlike the Holroyd River Holding, the
successive lessees of the Mitchellton Holding never went into
possession. This fact, which was undisputed, led to a submission for
the Thayorre which is particular to their case and does not affect the
case for the Wik. For the Thayorre, it was put that, until a lessee goes
into possession, it does not have an estate in possession but a mere
interesse termini. Therefore, it was submitted, the estates of the
Mitchellton Holding lessees vested in interest but never in possession.
As a consequence, assuming (contrary to the Thayorre's primary
submission) the principles of tenure were attracted to the pastoral
leases executed in respect of the Mitchellton Holding, the Crown never
acquired a reversion expectant which was the postulate for the
(888) Pastoral lease land did not remain Crown land for the purpose of Land Acts: see
Land Act 1897 (Q), s 4; Land Act 1910 (Q), s 4; Land Act 1962 (Q), s 5.
However, it did remain Crown Land for many other statutes: see Mining Act 1898
(Q), s 3; Mining Act 1968 (Q), s 7; Petroleum Act 1923 (Q), s 3; Forestry Act
1959 (Q), s 5. Pastoral lease land remained subject to the issue of licences to cut
timber, to dig and remove stone, gravel etc. The holders of such licences were also
entitled to depasture animals used for the purpose of exercising the rights under
the licence: Land Act 1897 (Q), s 227; Land Act 1910 (Q), s 199. The pastoralist
did not have the power to restrict a person duly authorised from cutting or
removing timber or material or from searching for metal or minerals: Land Act
1897 (Q), s 229; Land Act 1910 (Q), s 200. The pastoralist could not ringbark or
destroy trees without permission or cut down trees other than for the purpose of
the pastoral holding: Land Act 1897 (Q), s 231; Land Act 1910 (Q), s 201; Land
Act 1962 (Q), s 250. Pastoral leases contained a condition reserving in favour of
the Crown the right to proclaim reserves and to resume land required for the
purpose of such reserves: Land Act 1902 (Q), s 12(1 )(iii), (iv) and (v); Land Act
1910 (Q), s 6(4); Land Act 1962 (Q), s 6(4). One of the purposes for which a
reserve could be proclaimed was for the use and benefit of Aboriginal inhabitants
of Queensland: Land Act 1897 (Q), s 190; Land Act 1910 (Q), s 4; Land Act 1962
(Q), s 5. A pastoral lease was subject to resumptions without compensation
payable except for improvements: Land Act 1897 (Q), s 209; Land Act 1910 (Q),
s 146; Land Act 1962 (Q), ss 307,314. A person driving stock was entitled to pass
through a pastoral lease and depasture stock on any part of the land within half a
mile of the road used for droving: Land Act 1897 (Q), s 230; Land Act 1910 (Q),
s 205; Land Act 1962 (Q), s 375.
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expansion of the Crown's radical title to the plenum dominium that
was said to extinguish the residual native title in the land.
To support this argument, the Thayorre relied on what was
advanced as a basic principle of the common law of leases, as
expressed in Coke Upon Littleton (889):
"For before entry the lessee hath but interesse termini, an interest
of a terme, and no possession, and therefore a release which enures
by way of enlarging of an estate cannot worke without a possession,
for before possession there is no reversion ... "
This rule was referred to, without disapproval in Mann, Crossman &
Paulin Ltd v Registrar of the Land Registry (890). It has now been
abolished by statute in Queensland, but such abolition did not occur
until 1975 (891).
Attractive though it might be to find a rule of the common law of
leases that would forestall the legal operation of the grant of the
pastoral leases over the Mitchellton lands, considering that they were
never taken up and no entry was ever made under them, I do not
believe that this argument can prevail in the face of the operation of
s 6(2) of the 1910 Act. It was under that Act that both of the
Mitchellton leases were granted. By that sub-section (set out in its
entirety above) the lease itself is, by force of statute, declared: " ...
valid and effectual to convey to and vest in the person therein named
the land therein described for the estate or interest therein stated."
Any residual common law principle which required physical entry
to give rise to the effectiveness of a lease and the reversion expectant,
is swept aside in the case of a pastoral lease granted under the 1910
Act by the provisions of the legislation. Under the 1910 Act, execution
of the lease, alone, is sufficient. Drummond J was right to so
determine. The submission for the Thayorre, that s 6(2) of the 1910
Act was merely providing for matters of form, must be rejected.
Native title was not necessarily extinguished
This conclusion takes me, therefore, to the basic argument,
advanced for the Wik and the Thayorre, to sustain the suggested
survival of their native title notwithstanding the pastoral leases granted
in this case. Their argument was simple and correct. 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,
(889) 2 Co Litl 270a.
(890) [191811 Ch202 at 206. See also O'Keefe v Williams (1910) II CLR 171 at 190.
cf North Ganalanja Aboriginal Corporation v Queensland (1995) 61 FCR I at 53-
54, per Hill J.
(891) Property Law Act Amendment Act 1975 (Q). See now Property Law Act 1974 (Q),
S 102. cf Conveyancing Act 1919 (NSW), S 120.
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.
The foregoing conclusions are supported by the following consider-
ations:
1. Australia's peculiar colonial needs and environmental
opportunities called forth legislation on land use which was
increasingly particular and special to this country. The prerogative
power of the sovereign to dispose of waste lands of the Crown in New
South Wales (then including the present Queensland) was removed by
the Sale of Waste Lands Act 1842 (Imp) (892). Thereafter, the grants
of interest in land were made under legislation, eventually enacted
exclusively by local legislators. The Queensland legislation on pastoral
leases, commencing with the Pastoral Leases Act 1869 (Q) was, as I
have noted, multifarious, detailed anq peculiarly local. Whereas in
England, most of the instruments by which land was first granted had
been lost (resulting in a reliance on fictions, the general rules of the
common law and evidence of practice), in Australia, and specifically
in Queensland, it is virtually always possible to trace the grant to an
instrument and to the legislation by which the instrument was
authorised (893). Dr Fry commented:
"The Crown tenures of mediaeval England were as difficult to
classify, and the incidents of such tenures were as multitudinous and
multifarious, as are the Crown tenures and tenurial incidents of
modern Australian land law, especially in Queensland and New
South, Wales. Tenurial incidents in mediaeval England were,
however, peculiarly appropriate to the feudal period, and those in
modern Australia are of a different nature." (894)
It is a mistake to import into the peculiar Australian statutory creation,
(892) 5 & 6 Viet c 36. There was an irrelevant exception preserved by s xvii, whereby
the Governor's power to grant licences for periods of up to twelve months
(squatters' annual licences) was preserved.
(893) Fry, Freehold and Leasehold Tenancies of Queensland Land (1946), p 19; Fry.
"Land Tenures in Australian Law", Res Judicatae, vol 3 (1947) 158, at p 160.
p 169.
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the pastoral lease, all of the features of leases in English leasehold
tenures dating back to medieval times. Unless such importation is
necessary, either for reasons of the language or imputed purpose of the
statute, it is much more appropriate to give content to the statutory
pastoral lease by reference to the statute, unencumbered. Doing so
represents a more orthodox approach to the construction of an
Australian statute, made for peculiar, and in some ways unique, local
land conditions. Tenure is already, to some extent, a fiction in
England. It is a fiction increasingly questioned (895). Why, in such
circumstances, it should be imputed to the Queensland Parliament in
1910 and 1962 that it had imported all of the incidents of the English
common law of leases is not immediately plain. Pastoral leases
covered huge areas as extensive as many a county in England and
bigger than some nations. In these circumstances, it seems distinctly
unlikely that there can be attributed to the Queensland Parliament an
implied purpose of granting a legal right of exclusive possession to the
pastoralist (including as against Aboriginals known to exist on the land
and unmolested in their continuing use of it) where that Parliament
held back from expressly so providing.
2. The Land Acts regulate the grant of leases. They do not expressly
confer on the Crown the estate necessary to grant a lease. The
historical reason for this is clear enough. At the time of the
enactments, it was assumed that the Crown exclusively enjoyed the
power to grant leasehold and other interests simply as an attribute of
its sovereignty. Only now, following Mabo [No 2J, has it become clear
that, contrary to the earlier understanding, with sovereignty came no
more than a radical or paramount title and this was burdened with
native title which the common law would, in some circumstances,
uphold. To invent the notion, not sustained by the actual language of
the Land Acts, that the power conferred on the Crown to grant a
pastoral leasehold interest was an indirect way of conferring on the
Crown "ownership" of the land by means of the reversion expectant
involves a highly artificial importation of feudal notions into
Australian legislation. It would require much plainer statutory
provisions to convince me that this was what the Queensland
Parliament did in 1910 and 1962 when the Land Acts were enacted.
That legislation is silent on the point precisely because the notion thac
the legislators (and drafters) were obliged to confer such a power on
the Crown would have been furthermost from their minds. What is
therefore suggested, upon analysis, is that, by a new legal fiction, such
a purpose should be invented, retrospectively attributed to the
Queensland Parliament and read into the Land Acts in order to afford
the estate out of which the Crown might grant a pastoral lease. But if
the Crown's power to make such a grant, properly analysed, exists
p 160.
simply because Parliament has said that it does, that is sufficient.
Importing into the Land Acts notions of the common law apt for
tenurial holdings under the Crown in medieval England, and
attributing them to the Crown itself, piles fiction upon fiction. As it is
not expressed in the legislation, I would not introduce it.
3. As to the argument that the very word "lease" and the other
words familiar to leasehold interests ("demise", "rent", "assigns")
are used in the Land Acts, I am quite unconvinced that they are
sufficient to import all of the features of a common law lease. The
case books are full of warnings against such a process of reasoning,
both generally (896) and particularly in the context of the use of words
such as "lease" and "licence" (897). In R v Toohey; Ex parte
Meneling Station Pty Ltd (898), this Court was obliged to consider a
statutory "grazing licence" as either proprietary or non-proprietary in
nature. Mason J observed that the licence (899) "has to be
attaching too much significance to similarities which it may have with
the creation of particular interests by the common law owner of land".
The same point has been made many times by this Court and by other
courts of high authority. Long ago, in O'Keefe v Malone (900), the
Privy Council, in a case involving a statutory licence, emphasised that
the correct approach for a court to take was to examine the rights
actually conferred on the grantee by the instrument rather than
implying from the mere use of the word "licence" or "lease" all of
the incidents common to those expressions in a private contract. This
is not to say that some features of an ordinary "lease" may not be
imported into the terms where used in a statute. For example, the
lessee would be entitled (exceptions and reservations aside) to enforce
as against the Crown an entitlement to be given quiet enjoyment. The
lessee would be entitled to seek relief in equity in certain
circumstances as under a private lease (901). The lessee would have
the statutory right to invoke the assistance of the Crown to expel
trespassers who had no right or title to be upon the land (902).
However, these conclusions fall a long way short of requiring that the
title conferred by a pastoral lease upon the lessee to use the land "for
pastoral purposes only" be extended to exclude Aboriginals using the
land in the traditional way. This is particularly so where they are on
the land, as Mabo [No 2J now makes clear, in pursuit of a native title
(896) O'Keefe v Malone [1903] AC 365; Glenwood Lumber Co v Phillips [1904] AC
405.
(897) Radaich v Smith (1959) 101 CLR 209 at 222; cf Berkheiser v Berkheiser [1957]
SCR 387; (1957) 7 DLR (2d) 721.
(898) (1982) 158 CLR 327.
(8
'
)l)) Meneling Station (1982) i58 CLR 327 at 344.
(900) [19031 AC 365 at 377.
(901) Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 696.
(902) Land Act 1910 (Q), S 204; Land Act 1962 (Q). S 373(1).
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which the common law will recognise and enforce so far as it is not
inconsistent with the pastoralist's right to use the land "for pastoral
purposes only". The context in which the legislation on pastoral leases
was enacted in Queensland also makes it highly unlikely that this was
the intention of Parliament. As the historical materials demonstrate, it
was known that there were substantial numbers of Aboriginals using
the land, comprised in the pastoral leases, according to their traditional
ways. It was not government policy to drive them into the sea or to
confine them strictly to reserves. In these circumstances, it is not at all
difficult to infer that when the Queensland Parliament enacted
legislation for pastoral leases, it had no intention thereby to authorise a
lessee to expel such Aboriginals from the land. Had there been such a
purpose, it is not unreasonable to suggest that the power of expulsion
would have been specifically provided. In such huge, remote and
generally unvisited areas as ordinarily comprise pastoral leases, it may
be assumed that Parliament, had it been questioned about the position
of Aboriginals, would have responded as the Northern Protector of
Aboriginals did at the turn of the century.
4. There are several provisions in the Land Acts which reinforce the
foregoing conclusions. The Land Act 1897 (Q) contained, in s 235, a
provision for the removal of trespassers. This provision became
common in the Queensland legislation. By regulations made under that
Act, the form of warrant for the removal of trespassers read:
"[t]hat our Sovereign Lady the Queen is entitled to possession of
the said land; These are therefore to command you forthwith to
enter into and upon the said land, and to dispossess and remove the
said [trespassers] ... and to take possession of the same on behalf of
our said lady the Queen."
The equivalent provision in the 1910 Act was s 204. In the 1962 Act
it was s 373( I). These sections uniformly provide for the removal of
trespassers by the taking of possession "on behalf of the Crown".
This is one of a number of indications in the Land Acts that, by their
terms, exclusive possession did not repose in the lessee. A residue of
actual possessory right was retained to the Crown, not a mere
reversion expectant. Both the 1910 and 1962 Acts contained
provisions [that pastoral leases should be subject to reservations and
conditions authorised or prescribed by the Acts (903). Although such
exceptions to the right of peaceful enjoyment of the entire land
referred to in the lease do not throw much light on the legal character
of the interest thereby created, by their number and variety, they do
emphasise the point that the interest in the land which was granted by
a pastoral lease was a peculiar statutory interest. It is an interest
peculiar to, and apt for, the conditions of the countryside described. It
(903) See the Acts contained in fn 888 above.
was not one conferring on the lessee a general right of exclusive
possession simply because what was granted was called a "lease".
5. Confining the rights granted to the lessee to those apt for the
circumstances of a pastoral lease involves no distortion of the language
of the Land Acts. On the contrary, it simply applies to the Land Acts
the ordinary rule of statutory construction that the powers conferred by
the legislative language on a donee of such powers are, and are only,
those stated or necessary for the achievement of the stated
objects (904). In the context of a pastoral lease, the interests acquired
by the lessees to achieve the objects of the Land Acts are not
dissimilar to those which, at common law, were known as profits a
Prendre (905). However, because of my view that the rights conferred
on the lessee under a pastoral lease in Queensland are sui generis and
to be discovered from the legislation creating those rights, I see no
reason to pursue any analogy to profits a prendre or other property
interests developed in other contexts (906).
6. There are further reasons of legal principle which reinforce this
approach to the Land Acts under which the pastoral leases here were
granted. There is a strong presumption that a statute is not intended to
extinguish native title (907). The intention to extinguish native title
must be clear and plain, either by the express provision of the statute
or by necessary implication (908). General provisions of an Act are
not construed as extinguishing native title if they are susceptible to
some other construction (909). 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 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 (910). It may be said
that the Land Acts under which the present pastoral leases were
(904) Water Conservation and Irril(ation Commission (N5W) v Browninl( (1947) 74
CLR 492 at 505; Roberts v Hopwood [1925] AC 578 at 602; Bromley London
Boroul(h Council v Greater London Council [1983] I AC 768 at 813.
(905) Wans, "The Conveyancer. Timber Agreements", Australian Low Journal, vol 19
(1945) 183; Baalman, "The Neglected Profit aPrendre", Australian Law Journal.
vol 22 (1948) 302.
(906) On the rights exercisable under a profit aprendre, see Mason v Clarke [1955] AC
778 at 796. See also Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR I.
(907) Mabo v Queensland (Mabo [No 1]) (1988) 166 CLR 186 at 224; Mabo [No 2J
(1992) 175 CLR I at III; Western Australia v The Commonwealth (the Native
Title Act Case) (1995) 183 CLR 373 at 422.
(908) Mabo [No I] (1988) 166 CLR 186 at 213; Mabo [No 2J (1992) 175 CLR I at 64,
110-111; Western Australia v The Commonwealth (the Native Title Act Case)
(1995) 183 CLR 373 at 423.
(909) Mabo [No I] (1988) 166 CLR 186 at 213, 223.
(910) Potter v Minahan (1908) 7 CLR 277 at 304; 50rby v The Commonwealth (1983)
152 CLR 281 at 289-290. 309; Pyneboard Pty Ltd v Trade Practices Commission
(1983) 152 CLR 328 at 341; Hamilton v Dades (1989) 166 CLR 486 at 495-496;
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granted, were made by the Queensland Parliament before the survival
of native title was made clear by this Court in Mabo [No 2]. That is
true. It is equally true that a court, in giving meaning to the language
of an Act, will ordinarily take into account the circumstances and
conditions contemporaneous to its enactment (911). However, the
principle protective of the rights of Aboriginal people is not new to the
common law. It existed in Australia in colonial times. Often it was
explained in terms of the duty which the Crown owed, in honour, to
native people who were under the Crown's protection (912). Although
the legislators in 1910 and 1962 did not know of the existence of
native title, it should be presumed that, had they known, Parliament
would have acted to protect such rights against uncompensated
expropriation (913). Especially would it have done so in circumstances
where the expropriation asserted was alleged to have occurred by a
legal fiction, viz the grant of a leasehold interest but one whose
peculiarities would leave traditional Aboriginal life totally, or largely,
undisturbed. In Canada, the principle has been approved that courts
should attribute to Parliament the objective of achieving desired results
with as little disruption as possible of the rights and interests of
indigenous peoples and affecting their rights and status no more than is
necessary (914). Moreover, the principles of statutory construction to
which I have referred are by no means new principles. There were
many cases before and at the time of the enactment of the early
pastoral leases legislation which adopted analogous principles (915).
Existing proprietary rights might be affected by Parliament acting
(910) cont
see also Bropho v Western Australia (1990) 171 CLR I; Corporate Affairs
Commission (NSW) v Yuill (1991) 172 CLR 319.
(911) Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Bropho v
Western Australia (1990) 171 CLR I. The courts have accepted presumptions as
to the result of development of the law unforeseen at the time that original
legislation was enacted. Thus, where legislation which had disturbed proprietary
rights was repealed, the courts would infer that it was Parliament's intention that
the repeal would revive and restore the pre-existing common law rights of
property: see Marshall v Smith (1907) 4 CLR 1617 at 1634. Here, the legislative
text is unchanged but a major hypothesis upon which it was drafted and enacted
has been varied with retrospective effect.
(912) cf Guerin v The Queen [1984] 2 SCR 335 at 376; (1984) 13 DLR (4th) 321 at
335; Mabo [No 2] (1992) 175 CLR I at 201-203, per Toohey J.
(913) There are indications of legislative intent that some protection be afforded to
Aboriginals in other respects: see Aboriginals Protection and Restriction of the
Sale of Opium Act 1897 (Q); Aboriginals Preservation and Protection Act 1939
(Q).
(914) Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 529, quoted with
approval in Western Australia v The Commonwealth (the Native Title Act Case)
(1995) 183 CLR 373 at 433; affd sub nom R v Van der Peet [1996] 2 SCR 507;
(1996) 137 DLR (4th) 289.
(915) eg, Arthur v Bokenham (1708) II Mod 148 at ISO [88 ER 957 at 958] cited in
Potter v Minahan (1908) 7 CLR 277 at 304.
within, and in accordance with, its constitutional powers (916).
However, to deprive a person of pre-existing proprietary interests, the
legislation enacted by Parliament must clearly do so, either by express
enactment (917) or by necessary implication (918). 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 nineteenth and early twentieth
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" (919). 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. Whether, in particular
cases, and in particular places, native title rights, in their operation,
were inconsistent with the rights enjoyable under the pastoral lease is a
matter for evidence. Because the interests under native title will not be
unifonn, the ascertainment of such interests, by evidence, is necessary
in order to judge whether such inconsistency exists as will extinguish
the particular native title proved. If inconsistency is demonstrated in
the particular case, the rights under the pastoral lease will prevail over
native title (920). If not, the native title recognised by our law will
survive.
7. Is there any legal principle or legal policy which would cast
doubt on the foregoing conclusion and require that such outcome be
reconsidered? I think not. No new doctrine is adopted which alters the
course set by the decision of this Court in Mabo [No 2]. There is no
radical departure from the fundamental principles of Australian law,
including Australian land law (921). It is true that some remarks in
(916) Penny v Penny (1965) 6 FLR 476.
(917) Greville v Williams (1906) 4 CLR 694.
(918) Yarmouth Corporation v Simmonds (1877) 10 Ch 0 518 at 528; Goodwin v
Phillips (1908) 7 CLR I at 16; Chief Commissioner for Railways and Tramways
(NSW) v AI/arney-General (NSW) (1909) 9 CLR 547 at 560. See also Hocking v
Western Australian Bank (1909) 9 CLR 738 at 746; The Commonwealth v
Hazeldell Ltd (1918) 25 CLR 552 at 563; Melbourne Corporation v Barry (1922)
31 CLR 174 at 206.
(919) Chief Commissioner for Railways and Tramways (NSW) v Allorney-General
(NSW) (1909) 9 CLR 547 at 560.
(920) Mabo [No 2J (1992) 175 CLR I at 68.
(921) Mabo [No 2J (1992) 175 CLR I at 42-43.
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Mabo [No 2], not necessary to the actual decision in that case, have
been reconsidered. The suggestion that it was necessary and inherent
in the special Queensland legislation creating the uniquely Australian
property interest of a pastoral lease to import the paraphernalia of
English feudal leasehold notions has been rejected. It is not what the
Queensland legislature said in its enactments. It is not necessary in
order to make the legislation effective. It is unhistorical and artificial
in the concept which it would import into the function of the Crown in
Australia as the paramount grantor of interests in land. The
fundamental rule in Mabo [No 2] is unaffected.
When, therefore, the legal interests granted by the pastoral leases
here are analysed and considered with our present knowledge that
native title survived annexation of the Australian lands to the Crown,
the nature of such legal interests is such that they do not necessarily
extinguish native title. This conclusion can more comfortably be
reached with the assistance of the presumption that, without express
words or necessary implication, Australian legislation will not be
construed to take away proprietary rights, particularly without
compensation. The holders of pastoral leases are left with precisely the
legal rights which they enjoyed pursuant to the leases granted under
the Land Acts "for pastoral purposes only". Those rights will prevail,
to the extent of any inconsistency with native title. This judgment is
concerned only with the legal interests of the lessees under the
Queensland legislation examined in this case. It is the peculiarity of
the legal rights conferred by such statutory leases, in the factual setting
in which they were intended to operate, which permits the possibility
of coexistence of the rights under the pastoral lease and native title.
Such would not be the case where an estate or interest in fee simple
had been granted by the Crown. Such an interest, being the local
equivalent of full ownership, necessarily expels any residual native
title in respect of such land. The position of the countless other
leasehold interests in Queensland, described by Dr Fry (922) and of
the pastoral and other leasehold interests elsewhere in Australia must
remain to be elucidated in later cases. It is true that this result
introduces an element of uncertainty into land title in Australia, other
than fee-simple. However, this is no more than the result of the
working out of the rules adopted in Mabo [No 2].
There were many reasons of legal authority, principle and policy for
adhering to the understanding of the law which existed prior to Mabo
[No 2] (923). But no party before this Court sought to reargue the
correctness of that decision. So it falls to the Court to determine one of
its logical consequences. I forbear, of my own motion, to reagitate the
wisdom of the step taken by the Court in Mabo [No 2]. Once that step
(922) Fry "Land Tenures in Australian Law", Res Judicarae, vol 3 (1947) 158, at
p 163.
(923) See Mabo [No 2J (1992) 175 CLR I at 145-160, per Dawson J.
was taken, ordinary common law principles for the protection of a
proprietary right, found to have survived British settlement, extended
to the protection of the indigenous peoples of Australia, in exactly the
same way as the law would protect other Australians. Because pastoral
leases in Queensland are not necessarily, in law, incompatible with the
survival of native title rights, the latter survived unless shown, by
particular evidence, on the particular facts, to be inconsistent and thus
extinguished.
A large number of other submissions were received by the Court on
the pastoral leases question. Determination of them, in these already
extended reasons, is not necessary. What has been stated is sufficient
to bring me to my conclusions and to the orders which I would
propose on this point.
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.
STATUTORY AGREEMENTS
Agreement with Comalco authorised by statute
Questions 4 and 5 concern only certain claims by the Wik
propounded in their further amended statement of claim. So far as
question 4 is concerned, the claims are maintained against the State of
Queensland (Queensland) and the Commonwealth Aluminium Corpor-
ation Pty Ltd (Coma1co). There was no dispute as to the facts, so far as
the preliminary determination of the question of law was concerned.
For that purpose, Queensland and Coma1co assumed that the Wik
would make out the various defaults alleged (including breach of the
requirements of procedural fairness and breach of fiduciary duty)
whilst strenuously denying that such defaults had occurred.
In 1957, the Government of Queensland procured the passage
through the Parliament of Queensland of the Commonwealth Alu-
minium Corporation Pty Limited Agreement Act 1957 (Q) (the
Coma1co Act). The Act was given the Royal Assent on 12 December
1957. As originally enacted, its relevant provisions were:
"2. The Premier and Chief Secretary is hereby authorised to make,
for and on behalf of the State of Queensland, with Commonwealth
Aluminium Corporation Pty Limited ... the Agreement a copy of
which is set out in the Schedule to this Act ...
3. Upon the making of the Agreement the provisions thereof shall
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have the force of law as though the Agreement were an enactment
of this Act.
The Governor in Council shall by Proclamation notify the date of
the making of the Agreement.
4. The Agreement may be varied pursuant to agreement between the
Minister for the time being administering this Act and the Company
with the approval of the Governor in Council by Order in Council
and no provision of the Agreement shall be varied nor the powers
and rights of the Company under the Agreement be derogated from
except in such manner.
Any purported alteration of the Agreement not made and
approved in such manner shall be void and of no legal effect
whatsoever.
Unless and until the Legislative Assembly, pursuant to subsection
four of section five of this Act, disallows by resolution an Order in
Council approving a variation of the Agreement made in such
manner, the provisions of the Agreement making such variation
shall have the force of law as though such lastmentioned Agreement
were an enactment of this Act.
5(1) Any Proclamation or Order in Council provided for in this Act
or in the Agreement may be made by the Governor in Council ...
(2) ...
(3) Every such Proclamation or Order in Council shall be
published in the Gazette and such publication shall be conclusive
evidence of the matters contained therein and shall be judicially
noticed.
(4) Every such Proclamation or Order in Council shall be laid
before the Legislative Assembly within fourteen days after such
publication if Parliament is sitting for the despatch of business; or, if
not, then within fourteen days after Parliament next commences to
so sit.
If the Legislative Assembly passes a resolution disallowing any
such Proclamation or Order in Council, .. , such 'Proclamation or
Order in Council shall thereupon cease to have effect, but without
prejudice to the validity of anything done in the meantime."
The agreement authorised by the Coma\co Act (the Coma\co
Agreement) was executed by the Premier and Chief Secretary of
Queensland in apparent compliance with s 2 of the Act and
purportedly "for and on behalf of the State [of Queensland]", and also
by Coma\co, on 16 December 1957. On 22 March 1958, the
Proclamation notifying the date of the making of the Coma\co
Agreement was published in the Queensland Government Gazette. The
conditions in the Coma\co Agreement being satisfied, Coma\co
became entitled, pursuant to cl 8, to the grant of a "Special Bauxite
Mining Lease for the western bauxite field for an initial term of
eighty-four (84) years commencing on the first day of January, 1958".
Pursuant to cl ll(c) of the Coma\co Agreement, Coma\co also became
entitled to occupy the area to be leased and to exercise all the rights
and powers intended to be granted under the lease, pending the issue
of the instrument of lease. The Special Bauxite Mining Lease
(identified as ML 7024) was issued on 3 June 1965. It was in the form
set out in the Third Schedule to the Comalco Agreement, in
conformity with cI 11 (a) of that Agreement. The lease was thereafter
varied on a number of occasions in the manner provided for by s 4 of
the Comalco Act.
The primary submission of the Wik in their statement of claim was
that the enactment of the Comalco Act, the making of the Comalco
Agreement and the granting of the lease did not extinguish native title
in the areas the subject of Comalco's entitlements under the foregoing
provisions. However, against the possibility that this primary
submission might fail and that the Comalco Act, the Comalco
Agreement and the lease referred to, singly or in combination, might
be so inconsistent with the Wik's native title rights as to extinguish
them, the Wik sought to advance the claims against Queensland and
Comalco which are the subject of question 4. Those claims were:
(a) That the Comalco Agreement and the lease were invalid and of
110 effect, being made in breach of the requirements of procedural
fairness to which the Wik were entitled (basically notification that
their interests might be adversely affected by the decision to enter
into the Comalco Agreement or otherwise over-ridden to the
advantage of the private rights and interests of third
parties) (924).
(b) That the Comalco Agreement and the lease were invalid and of
no effect on the ground that they were negotiated and executed in
breach of trust or fiduciary duty on the part of Queensland, in
which breach Comalco knowingly participated (925).
(c) That Comalco was obliged to account to the Wik for profits made
by Comalco in consequence of the breach of fiduciary duty by
Queensland and that there should be a declaration that Comalco
held the lease as constructive trustee for the Wik (926).
(d) That Comalco had been unjustly enriched by the benefits which it
received from the making of the Comalco Agreement, the grant
of the lease and the operations conducted pursuant thereto, and
was thereby obliged to account to the Wik for such ben-
efits (927).
(e) That Comalco should be enjoined from continuing its operations
pursuant to the Comalco Agreement and lease because it had no
(924) Statement of claim, pars 48A-53.
(925) Statement of claim, pars 54-58.
(927) Statement of claim, pars 6IA-64.
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lawful right to conduct the operations once the Comalco
Agreement and the lease were found invalid (928).
The Wik did not contend that the Comalco Act was invalid.
Queensland and Comalco successfully argued in the Federal Court that
the Comalco Act, the Comalco Agreement it authorised and the lease
which it envisaged together, expressly or by necessary implication,
denied the Wik any remedy for the wrongs alleged, assuming they
could prove them. The Wik denied that this was the effect of the
Comalco Act or of the Comalco Agreement and lease made under it.
Decision of the Federal Court
In approaching the operation of the Comalco Act, Drummond J had
the benefit of the decision upon that issue of the Full Court of the
Supreme Court of Queensland in Commonwealth Aluminium Corpor-
ation Ltd v Attorney-General (Q) (929). In issue in that litigation was
whether an amendment to the rate of royalties payable under the
Comalco Agreement, effected not by means of the variation provisions
in s 4 of the Comalco Act but by a subsequent Act (930), was
inapplicable to vary the Comalco Act. The Court held that,
notwithstanding the Comalco Act, the Queensland Parliament retained
full legislative power to amend the Comalco Act and, by later
legislation, to affect the Comalco Agreement executed under that Act.
In response to the complaint that the fonnula in s 4 of the Comalco
Act had the effect of elevating executive action to the status of
legislation, and so abrogating the legislative authority of the
Parliament of Queensland, Wanstall SPJ pointed out that the
Queensland Parliament retained its entire legislative powers (931). His
Honour rejected the attack on the validity of the Comalco Act and
relied upon the reasoning of the Privy Council in Cobb & Co Ltd v
Kropp (932).
In this Court the Wik shifted their attack. Many of the arguments
which were rejected in the Federal Court were abandoned. The three
arguments which were advanced were: .
(a) That the Federal Court had erred in reading the ComaIco Act so
widely as to excuse Queensland and ComaIco from any
enforceable liability which they respectively owed to the Wik.
(b) That so far as the ComaIco Agreement was concerned, the most
that the Act did was to "authorise" the Premier to execute the
Comalco Agreement. This should be read as falling short of
imposing upon the Premier the obligation to execute the Comalco
Agreement. It pennitted him to do so if he so decided, after
(929) [1976] Qd R 231.
(930) Mining Royalties Act 1974 (Q).
(931) Commonwealth Aluminium Corporation [1976] Qd R 231 at 239.
(932) [1967] I AC 141 at 157.
satisfying himself that all relevant matters and interests had been
taken into account (including the entitlements of the Wik). It
thereby implicitly preserved the obligation to adhere to procedural
fairness and to respect the Wik's fiduciary rights.
(c) That the lease was separate from the Comalco Agreement and did
not form part of it. Hence the lease did not have the force of
statute even though the Comalco Agreement was given such
status by the Comalco Act.
In the Federal Court, Drummond J rejected each of these
submissions. In my opinion his Honour was right to do so.
Attack on the Agreement: Implications of the Comalco Act
The Wik urged that the proper construction of the Comalco Act was
that it was limited to its basic purpose of removing the need, under the
Mining Acts of Queensland, to follow for the granting of mining
leases, what the Privy Council described as a "chain of necessary
steps to be taken, of satisfaction to be achieved, of decisions to be
made, of discretions to be exercised" (933). In this regard, reference
was made to the reasoning of the Full Court in the earlier litigation
concerning the Comalco Act (934). There seems little doubt that had
the Comalco Act merely authorised the execution of the Comalco
Agreement, without the additional element provided by s 3 which gave
that agreement statutory force, it would not have sanctioned the
provisions in the Comalco Agreement which otherwise conflicted with
the Mining Act (935). There is no doubt that this was one of the
purposes of the Comalco Act. The Wik argued that the Act should be
given a construction which avoided attributing to Parliament any
intention to validate what would otherwise be a wrong done to a third
party. They submitted that it would require clear language to authorise
not merely the bringing into force of the Comalco Agreement but also
doing so in breach of the duty of procedural fairness and of fiduciary
duty, as posited. Compliance with those duties was assumed by
Parliament. Breach was not prospectively authorised or subsequently
ratified or validated by the statutory and contractual arrangements
which followed. The Wik acknowledged that a passage in the
judgment of the Privy Council in Corporation of the Director of
Aboriginal and Islanders Advancement v Peinkinna (936) was auth-
ority against their proposition. They urged that this Court should not
follow the opinion there expressed.
There are a number of answers to these arguments. Essentially, the
function of the Court is to give effect to the purpose of the Queensland
(933) Cudgen Rutile [No 2J Ply Ltd v Chalk [1975] AC 520 at 535.
(934) Commonwealrh Aluminium Corporation Ltd v Allorney-General (Q) [1976] Qd R
231 at 258-260, per Dunn J.
(935) Wik Peoples v Queensland (1996) 63 FCR 450 at 509, per Drummond J.
(936) (1978) 52 ALJR 286 at 291; 17 ALR 129 at 138.
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Parliament in adopting the exceptional course found in the Comalco
Act. In Hoani Te Heuheu Tukino v Aotea District Maori Land
Board (937), the Privy Council referred to its earlier decision in
Labrador Co v The Queen (938) and said:
"It is not open to the court to go behind what has been enacted by
the legislature, and to inquire how the enactment came to be made,
whether it arose out of incorrect information or, indeed, on actual
deception by someone on whom reliance was placed by it."
Those remarks were repeated in the House of Lords in British
Railways Board v Pickin (939), where it was further decided that a
litigant could not establish a claim in equity that the other party, by
fraudulently misleading the legislature in successfully promoting a
Bill, had inflicted damage on the plaintiff. The Wik's argument
concerning the invalidity of the Comalco Agreement, at least on the
basis of their attacks on that Agreement, conflicts with one of the
obvious purposes of adopting the procedure evidenced in the Comalco
Act. That procedure was designed to confer a statutory status on the
Comalco Agreement. To permit a party to attack the validity of the
Comalco Agreement on the basis of alleged default or impropriety in
the steps leading to its execution would undermine and frustrate the
clear purpose of the legislation. Similarly, once the Comalco
Agreement was executed, the rights conferred by it were of the same
status as if they had been conferred by legislation. The fact that other
persons (such as the Wik) may thereby have lost rights previously
belonging to them is simply the result of the operation of legislation,
the constitutional validity of which is not impugned. Subject to what
follows, the Comalco Act had the purpose and effect of giving
legislative force to the Comalco Agreement. To permit the Wik now to
question the validity of the Comalco Agreement is contrary to the
plainly intended effect of the Comalco Act. Inherent in this conclusion
is the further one that damages and other relief cannot be obtained for
alleged breaches of duty resulting in, or constituted by, the making of
the Comalco Act or in respect of the benefits flowing from the
Comalco Agreement. This is so because, once executed as Parliament
provided, the Comalco Agreement itself took on the force of
legislation (940). This was not the usurpation of legislative power. It
was the exercise of it. The suggested injustice of the Comalco
Agreement and of its consequences for the Wik is not then a matter for
legal (941) but only for political redress.
(937) [1941] AC 308 at 322.
(938) [1893] AC 104 at 123.
(939) [1974] AC 765 at 791.
(940) Campbell, "Legislative Approval of Government Contracts", Australian Law
Journal, vol 46 (1972) 217, at p 218.
(941) cf Caledonian Railway Co v Greenock & Wemyss Bay Railway Co (1874) LR 2
Sc & Div 347 at 348-350.
It is not necessary in this case to consider what might be the
consequences where a procedural requirement of Parliament, or of the
particular Act, is not complied with (942). The Wik raised the case
where the authorised signatory to a statutory contract was substituted
by an imposter. There is no suggestion of any such default in the
Parliamentary procedures or the legislative requirements applicable in
this instance. I do not regard the suggested analogy as a valid one.
Parliament is to be taken to expect that its own procedures and its
essential legislative conditions would be fulfilled. But the major
purpose of the legislative endorsement of the Comalco Agreement,
adopted in the Comalco Act, was to avoid claims of invalidity of the
Agreement of the kind which the Wik, by the applicable paragraphs of
their statement of claim, wish to ventilate.
Statutory authorisation and its effect
In a fall-back argument, the Wik asserted that, upon its true
construction, the provision in s 2 of the Comalco Act which
"authorised" the Premier to make the Comalco Agreement did not
require him to do so. It merely permitted that course. The actual power
to make the Comalco Agreement had to be found elsewhere either
under different legislation or under the residue of the Royal
prerogative. In either such case, so it was argued, to move from the
authorisation to the execution of the Comalco Agreement, the Premier
would be obliged by law to do so in conformity with the general law
requiring compliance with duties of procedural fairness owed to
persons affected and fiduciary duties applicable to the case.
As was pointed out by Jordan CJ in Ex parte Johnson; Re
MacMillan (943), the word "'authorise', according to its natural
meaning, [ordinarily] signifies the conferring upon a person of a right
to do something which, apart from the authorisation, he does not
possess". But Jordan CJ pointed out that the word, like any other
word, takes its meaning from the context in which it appears. In that
particular case he found that "authorise" had to be read as including
"requiring" (944).
There is not much point in offering, as the Wik did, numerous cases
where "authorise" has been held to mean no more than to "sanction,
approve, and countenance" (945) or "permit" (946). Just as many
(942) See, eg, Allomey-General (NSW) v Trethowan (1931) 44 CLR 394 at 429-431;
Eastgate v Roz.lo!i (1990) 20 NSWLR 188 at 193-198; Bigno/d v Dickson (1991)
23 NSWLR 683 at 693-694.
(943) (1946) 47 SR (NSW) 16 at 18.
(944) Ex parte Johnson (1946) 47 SR (NSW) 16 at 19.
(945) Falcon v Famous Player., Film Co [1926] 2 KB 474 at 491, cited in University (If
New South Wales v Moorhouse (1975) 133 CLR I at 12.
(946) Adelaide Corporation v Australasian Peljimning Right Associalion Ltd (1928) 40
CLR 481 at 489. 497.
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cases could be found where the word included the notion that the
"authorised" course was required (947).
In the present context, the employment of the term "authorised"
was appropriate to the relationship between the Parliament of
Queensland and the Executive Government of the State. The detail and
specificity of the Comalco Act and the departure which it represents
from the ordinary law governing the multitude of contracts made for
and on behalf of the Crown in a State (948) all suggest that this was an
agreement which the Queensland Parliament expected to be made.
Once made, pursuant to Parliament's authority, the Comalco Agree-
ment, exceptionally, had the force of law as though itself part of the
enactment.
In such a context, the suggestion that the Comalco Agreement
needed a different and additional foundation (which would permit an
attack on the suggested defaults) is not persuasive. For this special
agreement, a particular regime of legislative authorisation was laid
down. It was sufficient, without more, to support the making of the
Comalco Agreement. In this case, no other source of power was
required.
The lease was valid
The final challenge by the Wik to the rights of Comalco involved an
attack on the validity of the lease, ML 7024. Comalco conceded in the
Federal Court that it could not contend that the mining lease itself had
statutory status (949).
The Wik argued that the lease, having no special statutory status,
did not preclude the maintenance of the claims set out in the amended
statement of claim. They should therefore be entitled to a trial of their
assertion that the Executive Government, before obeying the legislat-
ive command to grant the lease scheduled to the Comalco Agreement,
was required to accord procedural fairness and to avoid any breach of
fiduciary duty to persons in the position of the Wik.
It is a serious step to terminate a party's claim in advance of a trial
on the merits. As I have already said, where the law is uncertain, or in
a state of development, it is usually preferable to allow the claim to go
to trial (950). On the other hand, if a claim is clearly hopeless in law,
it is an unjust vexation of the defendant to oblige it to defend the
claim. Long ago in the Mersey Docks and Harbour Board Trustees v
Gibbs (951) it was said:
(947) See Julius v Lord Bishop o(OxtiJrd (1880) 5 App Cas 214 at 222-223.
(948) Seddon, Governmellt COil tracts - Federal. State alld Local (1995).
(949) Co/poratioll o( the Director "(Ahorigillal alld Islallders Advallcemellt v Peillkilllla
(1978) 52 AUR 286 at 291; 17 ALR 129 at 138-139.
(950) X (Millors) v BedtiJrdshire Coullty Coullcil [1995]2 AC 633 at 740-741.
(951) (1866) LR I HL 93 at 112, per Blackburo j, The aphorism assumes the abseoce of
aoy coostitutiooal limitations.
"If the legislature directs or authorises the doing of a particular
thing, the doing of it cannot be wrongful."
As the Comalco Agreement, with the force of an Act of Parliament,
obliged Queensland to grant to Comalco the lease ML 7024, the action
of Queensland in granting that lease pursuant to the express statutory
authority cannot, in my view, give rise to actions of the kind which the
Wik wish to bring. This conclusion is what the correct construction of
the Comalco Act requires. Cases involving other Acts and other
factual circumstances (952) are not in point. The question here is the
purpose and operation of a special public statute of the Queensland
Parliament adopting the particular device of a statutory agreement, an
essential purpose of which was to grant just such a lease as ML 7024.
Within the scheme established by the Comalco Act, obligations of the
kind which the Wik now wish to litigate were excluded. This
conclusion relieves me of the need to consider the additional defensive
arguments advanced by Queensland and Comalco.
Pechiney and the' 'Access Agreement"
Question 5 concerns similar questions which arise in respect of a
number of paragraphs of the Wik's amended statement of claim. By
those paragraphs the Wik seek to maintain against Queensland and
Aluminium Pechiney Holdings Pty Ltd (Pechiney), actions similar to
those identified in the case of Comalco. In this case, the statute in
question is the Aurukun Associates Agreement Act 1975 (Q) (the
Aurukun Act). It gave like authorisation for the making of the
Aurukun Associates Agreement (the Franchise Agreement) (953). In a
like way, that agreement gave rise to the proclamation of the making
of the Franchise Agreement pursuant to the Aurukun Act with the
grant of Special Bauxite Mining Lease, number 9.
The Aurukun Act was given the Royal Assent on 12 December
1975. As in the case of the Comalco Act, its validity was not in
contest in this Court. By Proclamation dated 27 December 1975, the
Governor of Queensland in Council notified that the date of the
execution of the Franchise Agreement was 22 December 1975. That
was the agreement, the making of which was authorised by s 2 of the
Aurukun Act. The Third Schedule to the Franchise Agreement was the
"Access Agreement". This was an agreement between the Director of
Aboriginal and Islanders Advancement of Queensland (the Director)
and, amongst other parties, Pechiney. The Aurukun Act was in all
material terms similar to the Comalco Act. Accordingly, for the
reasons already given, the Franchise Agreement is to be treated as if it
were an enactment of the Queensland Parliament. No objection may be
taken to the validity of the Franchise Agreement. Such validity may
(952) Such as In re Earl of Wilton's Settled Estates [1907] I Ch 50; PyX Granite Co Ltd
v Ministry of H o u , f i ~ K and Local Government [1960] AC 260. .
(953) Section 2 of the Aurukun Act.
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not be impugned on the grounds of breach of fiduciary duty or breach
of the rules of procedural fairness because to do so would be to
contradict the clear purpose of the Queensland Parliament in adopting
the exceptional course of authorising the making of the Franchise
Agreement and, once made, affording it the force of statute.
It is clear both from the Aurukun Act itself and from the
Parliamentary Debates on the Bill which became the Act, that it was
"the culmination of detailed negotiations between the Queensland
Government and the Aurukun Associates" (954). The "Access
Agreement" was part of the background to those negotiations. It was,
in fact, the very agreement which was considered in the Peinkinna
Case (955). It bears the date 4 December 1975. It thus preceded both
the Aurukun Act and the Franchise Agreement which that Act
authorised. It is not expressly referred to in the body of the Aurukun
Act. However, as contemplated in the form of the Franchise
Agreement as set out in the Act, it was scheduled to that agreement
when it was made.
The submission of the Wik in relation to the Access Agreement was
similar to the submission made with respect to the lease granted to
Comalco: it did not itself have the force of statute. Its execution was
an administrative act liable to be tested by reference to the obligations
of procedural fairness and fiduciary duty.
For reasons similar to those given in dealing with the Comalco
lease, I am of the opinion that the scheme of the Aurukun Act
excludes prosecution of the Wik's claims against Queensland and
Pechiney in respect of the Access Agreement. The Franchise
Agreement has statutory force. One of its provisions (956) imposes on
the Aurukun companies an obligation to "carry out their
responsibilities and obligations as defined in the [Access Agree-
ment]". The obligations under the Access Agreement are therefore as
effective as if they were expressly stated in, and part of, the Aurukun
Act. The clear intention of the Queensland Parliament was that the
Access Agreement should take effect as part of the scheme which was
to include the Franchise Agreement made with the force of statute.
This interpretation, which I would reach independently, is confirmed
by the explanations given to the Queensland Parliament in support of
the complex arrangements betweer. the parties and for which the
approval of Parliament was sought (957). Placed as it was as an
integral part of the arrangements carried into law in the Franchise
Agreement, it must be taken that, for the successful operation of the
Franchise Agreement sanctioned by Parliament, the latter supplied any
(954) Queensland, Parliamentary Debates (Hansard), vol 269, P 2409.
(955) Corporation of the Director of Aboriginal and Islanders Advancement v Peinkinna
(1978) 52 ALJR 286; 17 ALR 129.
(956) PI Vlll, cl19.
(957) Queensland, Parliamentary Debates (Hansard), vol 269, P 2541.
deficiency in the authority or power of the Director to enter into the
Access Agreement. It would be destructive of the obvious purposes of
the Aurukun Act now to open to complaint the claims advanced by the
Wik in objection to the Access Agreement.
I therefore consider that Drummond J was right to answer
question 5, like question 4, in the negative.
ORDERS
For the foregoing reasons I agree in the answers to the questions
proposed, and in the orders stated, in the reasons of Toohey J.
I. Each appeal allowed in part.
2. Set aside the answers given by Drummond J to
Question IB(b), (c) and (d) and Question Ic(b),
(c) and (d). Affirm the answers given by
Drummond J to Question I c(a), Question 4 and
Question 5.
3. Answer Questions 1B, Ie, 4 and 5 as follows:
Question IB
"If at any material time Aboriginal title or
possessory title existed in respect of the land
demised under the pastoral lease in respect of the
Holroyd River Holding a copy of which is
attached hereto (pastoral lease):
(a) [not pressed]
(b) does the pastoral lease confer rights to
exclusive possession on the grantee?
If the answer to (a) is 'no' and the answer to (b)
is 'yes ':
(c) does the creation of the pastoral lease
that has these two characteristics con-
fer on the grantee rights wholly incon-
sistent with the concurrent and continu-
ing exercise of any rights or interests
which might comprise such Aboriginal
title or possessory title of the Wik
Peoples and their predecessors in title
which existed before the New South
Wales Constitution Act 1855 (Imp) took
effect in the Colony of New South
Wales?
(d) did the grant of the pastoral lease
necessarily extinguish all incidents of
Aboriginal title or possessory title of
the Wik Peoples in respect of the land
demised under the pastoral lease ?"
Answer
(b) No.
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(c) Does not arise.
(d) Strictly does not arise but IS properly
answered No.
Question Ie
"If at any material time Aboriginal title or
possessory title existed in respect of the land
demised under the pastoral leases in respect of
the Mitchellton Pastoral Holding No 2464 and
the Mitchellton Pastoral Holding No 2540 copies
of which are attached hereto (Mitchellton Pas-
toral Leases):
(a) was either of the Mitchellton Pastoral
Leases subject to a reservation in
favour of the Thayorre People and their
predecessors in title of any rights or
interests which might comprise such
Aboriginal title or possessory title
which existed before the New South
Wales Constitution Act 1855 (Imp) took
effect in the Colony of New South
Wales?
(b) did either of the Mitchellton Pastoral
Leases confer rights to exclusive pos-
session on the grantee?
If the answer to (a) is 'no' and the answer to (b)
is 'yes':
(c) does the creation of the Mitchellton
Pastoral Leases that had these two
characteristics confer on the grantee
rights wholly inconsistent with the con-
current and continuing exercise of any
rights or interests which might com-
prise such Aboriginal title or possess-
ory title of the Thayorre People and
their predecessors in title which existed
before the New South Wales Consti-
tution Act 1855 (Imp) took effect in the
Colony of New South Wales?
(d) did the grant of either of the
Mitchellton Pastoral Leases necessarily
extinguish all incidents of Aboriginal
title or possessory title of the Thayorre
People in respect of the land demised
under either of the Mitchellton Pastoral
Leases?"
Answer
(a) No.
(b) No.
187 CLR 1] OF AUSTRALIA
(c) Does not arise.
(d) Strictly does not arise but IS properly
answered No.
Question 4
"May any of the claims in pars 48A-53, 54-
58(a), 59-61, 61A-64 and 65-68 of the further
amended statement of claim [being claims of
alleged breach of fiduciary duty and failure to
accord natural justice} be maintained against the
State of Queensland or Comalco Aluminium Ltd
notwithstanding the enactment of the Comaleo
Act, the making of the Comaleo Agreement, the
publication in the Queensland Government Ga-
zette of 22 March 1958 pursuant to s 5 of the
Comalco Act of the proclamation that the
agreement authorised by the Comalco Act was
made on 16 December 1957 and the grant of
Special Bauxite Mining Lease No I?"
Answer
No.
Question 5
"May any of the claims in pars 112-116, 117-
121, 122-124, 125-127, 128-132, and 141-143 of
the further amended statement of claims [being
claims of alleged breach of fiduciary duty and
failure to accord natural justice} be maintained
against the State of Queensland or Aluminium
Pechiney Holdings Pty Ltd notwithstanding the
enactment of the Aurukun Associates Agreement
Act 1975, the making of the Aurukun Associates
Agreement, the publication in the Queensland
Government Gazette of the proclamation of the
making of the agreement pursuant to the Act and
the grant of Special Bauxite Mining Lease
No 9?"
Answer
No
4. The respondents who opposed the orders sought
in relation to Question 1B(b), (c) and (d) pay the
costs of the proceedings in this Court of the Wik
Peoples relating to that question.
5. The respondents who opposed the orders sought
in relation to Question Ic(b), (c) and (d) pay the
costs of the proceedings in this Court of the
Thayorre People and the Wik Peoples relating to
that question. The Thayorre People pay the costs
of the proceedings in this Court of the
respondents relating to Question 1c(a).
263
HCOF A
1996
WIK
PEOPLES
v
QUEENSLAND
HCOF A
1996
W,K
PEOPLES
v
QUEENSLAND
6. The Wik Peoples pay the respondents' costs of the
proceedings in this Court relating to Questions 4
and 5.
7. Remit the matters to the Federal Court with
respect to the costs of the proceedings before
Drummond] or otherwise in that Court.
Solicitors for the appellant and respondent Wik Peoples, Ebsworth
& Ebsworth.
Solicitors for the appellant and respondent Thayorre People,
Bottoms English.
Solicitor for the respondents the State of Queensland and the
Aboriginal and Islander Affairs Corporation, B T Dunphy, Crown
Solicitor for the State of Queensland.
Solicitor for the respondent the Commonwealth, Australian Govern-
ment Solicitor.
Solicitor for the respondent Comalco Aluminium Ltd, Blake
Dawson Waldron.
Solicitor for the respondent Aluminium Pechiney Holdings Pty Ltd,
Feez Ruthning.
Solicitor for the respondent Napranum Aboriginal Council,
S M Coates.
Solicitors for the respondent Pormpuraaw Aboriginal Council,
Farrellys.
Solicitors for the respondent pastoralists, Corrs Chambers
Westgarth.
Solicitors for the Aboriginal and Torres Strait Islander Commission,
Clayton Utz.
Solicitor for the Attorney-General for the State of Victoria,
R C Beazley, Victorian Government Solicitor.
Solicitor for the Attorney-General for the State of Western
Australia, P A Panagyres, Crown Solicitor for that State.
Solicitor for the Attorney-General for the State of South Australia,
M D Walter, Crown Solicitor for that State.
Solicitor for the Attorney-General for the Northern Territory,
Solicitor for the Northern Territo!)'.
Solicitors for the Kimberley Land Council, the Nanga-Ngoona
Moora-Juunga Association Aboriginal Corporation, the Western
Desert Punturkurnupara Aboriginal Corporation and the Ngaanyatjarra
Land Council, D C H Legal Group.
Solicitors for Ben Ward and others, on behalf of the Miriuwung
Gajerrong People, Aboriginal Legal Service of Western Australia.
JDM
H COF A
1996
WIK
PEoPLES
v
QUEENSL},... 'm

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