Federal Court of Australia

Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38

ORDERS

THE COURT ORDERS THAT:

1.    The time in which an application for leave to appeal may be brought from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021 be extended to 22 April 2021.

2.    Leave be granted to the Attorney General of New South Wales to:

(a)    appeal from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021; and

(b)    rely in that appeal on the Notice of Appeal filed on 7 April 2021.

3.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an application for leave to appeal from certain orders in Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169. The applicant, the Attorney General of New South Wales, also requires an extension of time in which to seek leave to appeal. In these reasons, we refer to the applicant as the State, as the primary Judge did.

2    The orders the subject of the application comprised answers to nine series of separate questions regarding the extinguishment of native title, which arose in the context of an application for a determination of native title made under s 61 of the Native Title Act 1993 (Cth) by the Ngemba/Ngiyampaa People. It was agreed that the separate questions would be answered before any determination of the native title claim.

3    The separate questions concerned eight types of historical statutory leases over Crown land in New South Wales. In the context of the whole native title claim area, the amount of land previously covered by these statutory leases (all of which were historic rather than current tenures) was small: approximately 1.2 per cent of the total claim area. The State sought leave to appeal from some, but not all, of the answers given by the primary judge that the grant of the statutory leases in question did not wholly extinguish native title rights and interests in relation to the subject land.

4    For the reasons that follow, leave to appeal is granted, but the appeal is dismissed.

Background

Legal framework

5    Section 10 of the Native Title Act provides that native title is recognised and protected in accordance with the Act, and s 11(1) provides that native title cannot be extinguished contrary to the Act: see Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [46] about the importance of these provisions. Those two general provisions conceal the complexities of the legislative scheme concerning extinguishment, and its interaction with the common law. Some of those complexities are at work in these appeals. However, below we set out only those parts of the Native Title Act relevant to the issues on the appeal. For example, Division 2 of Part 2 of the Native Title Act deals with the validation of certain acts that took place before 1 January 1994 and which would otherwise be invalid because of the operation of the Racial Discrimination Act 1975 (Cth). These acts are known as “past acts” and they are defined in s 228 of the Native Title Act. Since all the acts in question on the appeal, and before the primary judge, occurred decades before the Racial Discrimination Act was enacted, the “past act” provisions have no relevance, as was the case in Wilson (see Wilson at [53]).

6    Division 2B of Part 2 was introduced by the Native Title Amendment Act 1998 (Cth). The objective was to implement points 2 and 4 of the Commonwealth Government’s Ten Point Plan, in response to the High Court’s determination in Wik Peoples v Queensland (1996) 187 CLR 1 that the rights conferred by Queensland pastoral leases did not include a right of exclusive possession and did not completely extinguish native title: see Minchin N, The Ten Point Plan: Federal Government’s Response to the Wik Decision (Department of the Prime Minister and Cabinet, 1997); Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [5.1]. These points declared the Government’s intention that:

States and Territories would be able to confirm that “exclusive” tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.

…

As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralists.

7    Part 2 Division 2B includes the concept of a “previous exclusive possession act”, which is taken to extinguish native title completely: if attributable to the Commonwealth, by reason of s 23C(1); if attributable to a State or Territory, by reason of s 23E read with the applicable State or Territory legislation. See further Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [8]-[10].

8    Relevantly here the applicable State legislation is contained in s 20 of the Native Title (New South Wales) Act 1994 (NSW). It suffices to reproduce [43] of the primary judge’s reasons describing this provision’s effect and extracting the relevant parts:

In the case of New South Wales, s 20 of the [Native Title (New South Wales) Act 1994 (NSW)] picks up acts which are [previous exclusive possession acts] under s 23B of the NT Act [i.e., the Native Title Act] that are attributable to that State. Reflecting the terms of s 23C of the NT Act, s 20(1) of the [Native Title (New South Wales) Act 1994 (NSW)] provides that an act which is a [previous exclusive possession act] extinguishes any native title in relation to the land or waters covered by a freehold estate, a Scheduled interest as defined or a relevant lease and that the extinguishment is taken to have happened when the relevant act was done. Section 20(1) of the [Native Title (New South Wales) Act 1994 (NSW)] provides:

20    Confirmation of extinguishment of native title by previous exclusive possession acts of the State (NTA, secs 23E and 23C)

(1)    Acts other than public works If an act is a previous exclusive possession act under section 23B(2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State:

(a)    the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

(b)    the extinguishment is taken to have happened when the act was done.

9    The operation of these provisions was explained in Wilson at [48]-[49]:

The scheme of Div 2B was explained in Ward. The Division provides for the characterisation of certain “acts” as either “previous exclusive possession acts” (s 23B) or “previous non-exclusive possession acts” (s 23F). That characterisation then has consequences respecting extinguishment of native title. By force of s 23C, a “previous exclusive possession act” completely extinguishes all native title in relation to land (or waters) covered by that “act”. Section 23G, on the other hand, applies to “previous non-exclusive possession acts” and, in broad terms, provides for the partial extinguishment of native title. It should be emphasised that, whilst the expressions “previous exclusive possession act” and “previous non-exclusive possession act” are defined so as to apply to Commonwealth, State and Territory “acts”, ss 23C and 23G only have effect in respect of “acts” attributable to the Commonwealth. Provision is then made for States and Territories to legislate, subject to satisfaction of certain conditions, to the same effect as ss 23C and 23G in respect of all or any previous exclusive or non-exclusive possession acts attributable to the State or Territory in question (ss 23E and 23I).

Part 4 (ss 19-25) of the State Act was enacted in accordance with the power conferred by ss 23E and 23I of the NTA. The objects of Pt 4, as set out in sub-s (1) of s 19, are:

“(a)    to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State, and

(b)    to confirm the partial extinguishment of native title by previous non-exclusive possession acts attributable to the State.”

(Citations omitted.)

10    Sub-section 23B(1) of the Native Title Act provides that sub-s 23B(2) defines what is (and therefore also what is not) a “previous exclusive possession act”. Sub-section 23B(2) provides (relevantly to the issues on the appeal):

An act is a previous exclusive possession act if:

(a)    it is valid (including because of Division 2 or 2A of Part 2); and

Note:    As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(b)    it took place on or before 23 December 1996; and

(c)    it consists of the grant or vesting of any of the following:

(i)    a Scheduled interest (see section 249C);

…

(iv)    an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

…

(viii)    any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

11    Section 249C explains that a Scheduled interest is almost anything set out in Schedule 1 to the Native Title Act (the exceptions are not presently relevant), and anything otherwise declared to be a Scheduled interest by a regulation made in accordance with sub-ss 249C(2) and (3) (also not presently relevant).

12    Relevantly, cl 3 of Schedule 1 to the Native Title Act includes the following interests:

(3)    A settlement lease (whether an original or an additional holding) under the Crown Lands Act 1895 [(NSW)] or the Crown Lands Consolidation Act 1913 [(NSW)], other than a lease that:

(a)    permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

(b)    does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

…

(8)    A special lease under section 28A of the Western Lands Act 1901 [(NSW)] or section 75 or 75B of the Crown Lands Consolidation Act 1913 [(NSW)] that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoirs accommodation paddock; abattoirs and resting paddock; accommodation house; aerodrome; agriculture; agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; archery ground; bakery; basketball court; bee and poultry farm; boatshed; boiling down works; bowling green; brick kiln; bridge; building and repairing boats; building and repairing boats or ships; building or repairing of ships; bushfire brigade facilities; cable station; church and school site; community centre; construction of drainage canal; construction of irrigation canal; council chambers; council depot; council office; coursing ground and plumpton; cricket; cultivation; cultivation of eucalyptus; Country Women’s Association rest rooms; dairying; dam; dam, weir or tank; day care centre; depot; dog and animal pound; dog racing course; domestic garden; driver training ground; equestrian grounds; erection of building; erection of coke oven; erection of dwelling; erection of machinery; factory; feedlot; ferries; freezing works; golf course; graving dock; gymnasium; horse racing course; horticulture; inn; kindergarten; land‑based aquaculture; library; lime‑kiln; mail station; manufacture of eucalyptus oil; market garden; mixed farming or any similar purpose other than grazing; motel; motor car and bike racing track; motor sports activities and facilities; neighbourhood depot; night soil depot; nursery garden; orchard; parking area; patent slip; pig and poultry farm; piggery; planting; poultry farm; power house, engine house, boiler house, bathroom, loading facilities or coal washery in connection with coal mining; pre‑school; punt house; railway siding; railway station and depot; reclamation; refreshment room; refuse tip site; research centre; residence; residential development; residential subdivision; retirement village; rifle and pistol range; sale yard; sawmill; school and church site; school or other educational institution; septic tank; sericulture; sewage farm; sheep and cattle yard; showground; site for storage of explosives; skin drying and skin packing; slaughterhouse or abattoirs accommodation paddock; slaughterhouse; slip; smelting works; smithy; sporting club building; sporting ground; sporting ground and facilities; stable; storage of explosives; storage purposes; store; sugar cane growing; surf life saving club; swimming pool; tank; tannery; telecommunications or broadcasting tower, mast or building; tobacco growing; tramway; tree farming; vegetable garden; vegetable garden and nursery; velodrome; vineyard; volunteer rescue facilities; waste depot; water race; water storage; wattle growing; weighbridge; well; whaling station; wharf; wool washing establishment.

13    Sub-section 242(1) of the Act defines “lease” to include:

(a)    a lease enforceable in equity; or

(b)    a contract that contains a statement to the effect that it is a lease; or

(c)    anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

14    Section 248A defines an exclusive pastoral lease to be a pastoral lease that confers a right of exclusive possession over the subject land or waters or is a Scheduled interest. Section 248 defines a pastoral lease to be a lease that permits the lessee to use the subject land or waters solely or primarily for maintaining or breeding sheep, cattle or other animals, or any other pastoral purpose, or contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes. The definition of exclusive agricultural lease is not presently relevant. The paragraphs in s 23B(2)(c) which refer to exclusive agricultural leases, and exclusive pastoral leases, were not invoked in the formulation of the separate questions.

15    The next point of relevance to the legal framework in which the present extinguishment issues arise is the New South Wales legislative regime, in its various historical iterations, which governed the grant and regulation of the eight types of statutory leases referred to in the separate questions.

16    The complexity of the legislation that has governed the alienation of Crown land in New South Wales is notorious: see Wilson at [125]-[127]. In the present case, this complexity is accompanied by difficulty in ascertaining the actual terms of the leases subject of the separate questions. For many of these leases, no instrument of lease was adduced before the primary judge, and key terms of the leases in question were inferred from Gazettal notices or legislative provisions.

17    Statutory control over the alienation of Crown land was first established in the Crown Lands Alienation Act 1861 (NSW) and the Crown Lands Occupation Act 1861 (NSW). This legislation, known as “Robertson’s Land Acts” in homage to their chief proponent in Parliament, was broadly aimed at organising the allocation of land in the then colony. It established a legal process for settlers to acquire tenure in the vast tracts of so-called ‘unoccupied’ land outside the original counties of the colony, which had come to be used by squatters for pastoralism without any proprietary interest conferred by formal government grant. After about two decades of regulation under Robertson’s Land Acts, the enactment of the Crown Lands Act 1884 (NSW) (CLA 1884) split the administration of Crown land into eastern, central and western divisions of the colony, and all legislation regulating Crown land dealings in New South Wales was effectively consolidated into one statute.

18    The CLA 1884 defined Crown land as “lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any of the Acts hereby repealed”, and proscribed its sale, lease, dedication or reservation except in accordance with the Act. The Act empowered the Governor of the colony to grant different types of leases over Crown land, including “scrub leases”, “homestead leases”, “pastoral leases” and other forms of “special leases”, subject to conditions imposed by or under the Act. This range of leases was modified and supplemented by subsequent legislation, from which the various statutory leases subject of the separate questions were derived. The statutory leases were granted for limited purposes and were made subject to certain restrictions, aimed at regulating the uses to which the land could be put.

A brief description of the leases in issue

19    The first category of statutory lease dealt with in the separate questions was the “scrub lease”, which was a form of tenure first introduced in the CLA 1884. Section 86 of that Act empowered the Minister for Lands to declare, on the recommendation of a statutory authority known as a “Local Land Board”, any Crown land covered by scrub or “other noxious undergrowth” to be “Scrub Lands”. Under s 87, parcels of Scrub Lands up to a certain size could be leased for terms up to a certain length, subject to “such conditions as to clearing and destruction of scrub as may be defined by Regulations”.

20    Two scrub leases were at issue before the primary judge, and on this appeal. Scrub Lease No. 287 was granted under s 35 of the Crown Lands Act 1889 (NSW) (CLA 1889) over 6000 acres of declared scrub lands, for a term of 21 years commencing on 23 September 1909. Fifty acres of land were surrendered in 1922, but the size of the grant was subsequently increased by 1640 acres and the term was extended by 7 years. Scrub Lease No. 416 was granted under s 77 of the Crown Lands Consolidation Act 1913 (NSW) (CLCA 1913) over 9700 acres of declared scrub lands, for a term of 21 years commencing on 12 May 1933. The lease was forfeited early, with effect from 7 June 1942. The CLA 1889 and the CLCA 1913 contained provisions similar to s 86 and s 87 of the CLA 1884.

21    The second category of statutory lease was the “settlement lease”, a form of tenure created under Part III of the Crown Lands Act 1895 (NSW) (CLA 1895). Section 24 of that Act enabled the Governor of New South Wales to set apart Crown land for various types of leases, including settlement leases. Land subdivided under s 24 was required to be parcelled into farms, whose size was limited according to whether the land was suitable for agriculture, or for pastoralism. Settlement leases granted under s 25 were subject to a statutory limit on the length of their terms, and lessees were required to fence and reside on the land, and keep it clear of pests.

22    Five settlement leases were in issue before the primary judge, but only two were at issue on appeal. Settlement Lease No. 1895/16 Coonamble was granted under s 25 of the CLA 1895 over 2910 acres of land, some of which contained tanks and fencing, for a term of 28 years commencing 12 December 1895. Part of the leased land was acquired for the construction of a railway, part was deemed surrendered to the Crown on an application for its conversion to a conditional purchase or a conditional lease, and the remainder was withdrawn on 13 March 1912, following the proclamation of the village of Armatree. Settlement Lease No. 1911/9 Nyngan was granted under s 25 of the CLA 1895 over 5870 acres of land, for a term of 40 years commencing on 5 January 1911. The relevant part of the leased land was surrendered on 14 November 1924.

23    The third category of statutory lease was the “improvement lease”, another form of tenure created under Part III of the CLA 1895. Section 26 of that Act empowered the Governor to grant leases of Crown land that could only be made “suitable for settlement” by “improvements” and “the expenditure of large sums” on those improvements. These leases were subject to statutory limits on the size of the land granted and the length of their terms, as well as a statutory requirement that the lessee covenant to improve the land subject of the lease.

24    Three improvement leases were in issue before the primary judge and on this appeal, each of which was granted under s 26 of the CLA 1895 for a term of 28 years. Improvement Lease No. 1161 Coonamble was granted over approximately 11,307 acres of land, which, at the time of grant, included a woolshed and yards, a tank and fencing. Improvement Lease No. 581 Nyngan was granted over an area of approximately 5249 acres. Improvement Lease No. 958 Nyngan was for an area of approximately 4477 acres.

25    The fourth category of statutory lease was the “homestead lease”, a form of tenure introduced under Part IV of the CLA 1884. Section 82 of that Act empowered the Governor to grant leases of Crown land in New South Wales’ Western Division, subject to statutory restrictions that included minimum and maximum size limits, fencing requirements and requirements that the lessee reside on the land for a minimum period of time (namely, at least six months during each of the first five years of the lease).

26    Two homestead leases were in issue before the primary judge and on this appeal. Homestead Lease No. 1244 was granted over 9190 acres for a term of 21 years commencing on 21 December 1892. Lot 7303 in deposited plan 766965, which comprises land that was the subject of Homestead Lease No. 1244, is now the subject of a coal mining lease, granted on 2 December 1993 and expiring on 24 June 2028. Homestead Lease No. 1478 was granted over 5760 acres for a term of 28 years commencing on 14 August 1895. This lease was converted to Western Lands Lease No 1446 on 21 February 1906, by which part of the leased area was withdrawn for public works.

27    The fifth category of statutory lease was the “18th section lease”, a form of tenure created by s 18 of the Crown Lands Act Amendment Act 1903 (NSW). By this mechanism, the holder of a pastoral lease was entitled at the lease’s expiration to an extended tenure over one third of the area of the pastoral lease, subject to conditions imposed by statute. Five 18th section leases were in issue before the primary judge, but none of those leases were at issue on appeal.

28    The sixth category of statutory lease was the “western lands lease”, a form of tenure created by the Western Lands Act 1901 (NSW) (WLA 1901). Two western lands leases were in issue before the primary judge, but only one of those leases was in issue on this appeal. Western Lands Lease No. 3469 was granted under s 39 of the WLA 1901 over approximately 109,511 acres of land for a term of 13 years and 10 months and subject to statutory conditions, including that the lease be used for pastoralism. This tenure was the last in a series of interests in the leased area that dated back to a pastoral run known as ‘Willandra’, which was converted to a lease in 1865. The term of Western Lands Lease No. 3469 was extended twice and did not expire until 20 November 1971.

29    The seventh category of statutory lease was the “special lease for a term”, a form of tenure first introduced by ss 86 to 92 of the CLA 1884. Section 90 of that Act prescribed that special leases for a term were to be granted for specified purposes, including for wharves, irrigation works, saw-mills, quarries and similar industrial development. Each of the special leases for a term that were in issue before the primary judge was granted under s 75 of the CLCA 1913. That provision imposed a statutory limit on the maximum term of the leases at 28 years, which was subsequently extended to 40 years and then effectively removed by an option to convert special leases for a term to leases in perpetuity. Regulations made under the CLCA 1913 set out a list of conditions that could be imposed on a special lease for a term, including 22 conditions that applied to a lease unless its Gazettal notice specified otherwise. To the extent they are relevant, these conditions are discussed further below.

30    Nine special leases for a term were in issue before the primary judge but, of these, only three were in issue on appeal. Special Lease No. 1939/1 Warren was granted over 36 acres for a term of 10 years and two months commencing on 1 November 1940. The purpose of the lease was limited to “access and storage”. Special Lease No. 1964/1 Coonamble was granted over approximately 35 acres for a term of 27 years, six months and 22 days commencing on 9 May 1965. The purposes of the lease were limited to “grazing and access to water”. Special Lease No. 1952/1 Warren was granted over approximately 36 acres for a term of 13 years commencing 1 January 1951. The lease was originally granted for the purpose of grazing and access. Its term was subsequently extended to 31 December 1990 for the amended purposes of “grazing, access and storage”.

31    The eighth and final category of statutory lease was the “special lease for grazing”, which also has its origin in ss 86 to 92 of the CLA 1884. By a Gazettal notification in 1894, “grazing” was declared to be a purpose specified in s 90 of that Act. Sub-section 3(f) of the CLCA 1913 declared that all purposes set out in s 90 of the CLA 1884 were valid purposes for which a lease could be granted under s 75 of the CLCA 1913, so that special leases for grazing could be granted under that Act, subject to the prevailing conditions imposed by the statute and its regulations.

32    Two special leases for grazing were in issue before the primary judge and on appeal. Special Lease No. 1908/51 Coonamble was granted over 40 acres for a term of 10 years commencing 1 January 1909. Its term was subsequently extended by six years to 31 December 1925. Special Lease No. 1957/6 Nyngan was granted over 105 acres for a term of 28 years from 1 January 1958. Lot 7002 in deposited plan 1020588, which comprises land that was the subject of Special Lease No. 1957/6 Nyngan, was subject to a licence for grazing at the time the State investigated the tenure of the land subject of the separate questions.

Resolution: Extension of time and Leave to appeal

33    The parties proceeded on the basis that leave to appeal from the primary judge’s orders on the separate questions was required. It is correct that leave to appeal is required: see District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [9]. The underlying proceeding was an application under s 61 of the Native Title Act for a determination of native title in favour of the Ngemba/Ngiyampaa People. The answers to the separate questions did not determine the rights of the parties on that application, but rather determined the extent to which native title could be recognised by the Court over a small part of the claim area.

34    The State’s written submissions explained the State’s initial and then revised position about the need for leave to be sought, by reference to an affidavit filed by the State’s instructing solicitor – Ms Fegan – in support of the application for leave to appeal and extension of time:

As Ms Fegan explains at [13] and [16], although initially the State’s legal representative did not consider that leave to appeal was required, following the receipt of correspondence from the Respondent on 14 April 2021, it was accepted that the better view is that leave to appeal was required. By that stage, the notice of appeal had already been filed and served on the Respondent (this was done on 6 April 2021 [NB: the notice of appeal was stamped on 7 April 2021]). The application for an extension of time and for the grant of leave to appeal was then filed on 22 April 2021, ie, just over a week after the receipt of correspondence from the Respondent.

The State submits that, having accepted that the better view was that an application for leave was required, it moved fairly quickly to file its application for the grant of such leave (and an extension of time).

35    The State relied on the summary of the correct approach set out recently by the Full Court in C Pty Ltd v Sommer [2021] FCAFC 87 at [37]:

Leave to appeal will be granted if the decision is attended with sufficient doubt to warrant a grant of leave and substantial injustice would result if leave was refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 73 FCR 397 at 398. The discretion to extend time is to be exercised for the purpose of enabling the Court to do justice between the parties. An extension of time will be granted where there has been an acceptable explanation for the delay in bringing the application, there is no prejudice to the respondent in granting the extension and it can be shown that there is an arguable error in the decision in issue: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].

36    The way the three factors to which the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 referred are to be weighed and balanced will vary from case to case. The overriding consideration is, as the Full Court in Sommer explained, how the discretion should be exercised to enable the Court to do justice between the parties.

37    The respondents did not contend there was any prejudice in the extension of time being granted, and did not resist the grant of leave to appeal other than on the ground that the primary judge’s decision was not attended by sufficient doubt to warrant the grant of leave.

38    We accept the State’s submissions that at least some of the matters raised by its grounds of appeal may raise questions of significance to the determination of native title applications before the Federal Court throughout the State of New South Wales. We accept that some of the State’s contentions are arguable. We also accept there is a reasonable explanation for the delay, on the basis of Ms Fegan’s evidence. Therefore, to do justice between the parties, including settling by way of final appellate decision the questions of law and fact which will govern the recognition of rights in rem in any determination of native title, it is appropriate to extend time in which to apply for leave to appeal, and to grant leave to appeal, on the basis the State will rely on the Notice of Appeal filed on 7 April 2021.

The primary judge’s reasons in summary

39    The reasons of the primary judge are detailed and comprehensive. We do not propose to rehearse them here other than at a summary level. Where necessary we address the details of the primary judge’s reasoning in our consideration of each of the grounds of appeal.

40    Three observations about the primary judge’s reasons and the grounds of appeal should be made at this point.

41    First, the primary judge’s reasons included some preliminary observations which were material to some of his Honour’s conclusions, and set out a summary of general principles concerning extinguishment. None of those parts of the primary judge’s reasons were challenged in the grounds of appeal. Nor was the primary judge’s summary of the parties’ submissions impugned. The primary judge also made the following observation at [27]:

There is another consequence of the antiquity of all the land grants or reservations in the present proceeding which pre-date Mabo (No 2). Although the parties have gone to considerable lengths (particularly the State, which carries the evidentiary burden), to adduce relevant evidence concerning those tenures, there are unavoidable gaps. It is not suggested that these gaps reflect upon the diligence or thoroughness of the searches which have been conducted by the various parties into the historical records. The volume of material which has been provided to the Court testifies to the contrary. Rather, my point is to emphasise that the task of fact finding is rendered more difficult in a proceeding such as this where relevant events span more than a century and Government and other official record keeping over that period may not be as thorough, or accessible, as is the case with more recent materials.

42    The State did not challenge this observation, or the need for the primary judge at various points in his reasoning to draw an inference or inferences, because there was no direct evidence available.

43    Second, the primary judge dealt with each category of lease individually. As he did so, he set out the agreed facts about each lease, other matters about the leases, the history of that category of lease, additional factual matters his Honour considered relevant and the parties’ specific contentions about the category of lease. Having set out all those matters, his Honour then expressed conclusions about each individual lease within each category of lease. Some of the reasoning becomes more summary towards the end of the judgment, but that is to be expected and is unremarkable, given that the factual and legal issues are themselves repetitive. With respect, his Honour gave detailed and careful consideration to all matters pertaining to the questions asked in respect of each lease. We emphasise this because, as his Honour said at the start of his reasons, at [30]-[31]:

Before proceeding to summarise other general relevant principles it is important at the outset to emphasise that the issues which fall for determination in the present proceeding cannot be resolved by a “tick the box” exercise. Although helpful guidance is provided by various authorities, particularly Wik, Ward and Anderson, careful attention needs to be paid to the terms of legislation which is the source of the grant or vesting of a relevant land tenure, as well as the individual terms of any instrument concerning such a tenure.

Each case necessarily turns on its own individual facts, including the relevant terms and conditions of any particular land tenure, the relevant terms of the legislative regime and any relevant preceding legislative history. There is a grave danger of falling into error if the relevant issues are sought to be resolved simply by “cherry-picking” certain aspects of decided cases and transposing those individual aspects into a different factual and statutory context.

44    We respectfully agree. Moreover, the State’s contentions on the appeal bore the hallmarks of “cherry-picking” at many junctures. By “cherry picking”, we refer to the State’s approach of fastening on one factor or feature put forward by the State or identified by the primary judge, and taking it out of the context of the Court’s overall reasoning. Such an approach did not persuade us of any error in the approach taken by the primary judge. The whole of the reasoning of the primary judge on each lease, measured against his Honour’s explanation of the applicable principles which was not challenged, needs to be assessed in order to decide whether an appellable error is proven.

45    Third, the primary judge gave some prominence in his reasons to whether a grant of tenure to a third party could be described as “precarious”. As his Honour said (see for example Ohlsen at [51(5)]), this is a description taken from the High Court’s reasons in Ward. To take some key passages from Ward illustrating how the concept was used, at [170], the plurality said:

The rights obtained under a pastoral lease were limited. Such a lease:

“[gave] no right to the soil, or to the timber, except to such timber as may be required for domestic purposes, for the construction of buildings, fences, stockyards, or other improvements on the lands so occupied.”

The interest obtained was precarious. It could be forfeited for non-payment of rent or for failing to comply with its terms and conditions. If the lease was forfeited for failure to pay rent, or for some other failure to comply with its terms and conditions, it was to be offered at auction. Importantly, s 106 of the Land Act 1898 provided that:

“such lease shall immediately determine over any land which may be reserved, sold, or otherwise disposed of under this Act, or under the Goldfields or Mineral Lands Acts.”

(Citations omitted.)

46    And then at [184]:

Chief among those reasons is the recognition of the fact that the exercise of native title rights and interests on Crown lands was not an unlawful or unauthorised use liable to penalty under the penal provisions of the then applicable Land Act or Land Regulations. The grant of a precarious interest in Crown land, for limited (pastoral) purposes, subject to extensive reservations and exceptions permitting entry on the land in a wide variety of circumstances and, in some circumstances, by anyone, is not to be understood as rendering unlawful what was previously a lawful use of the land by native title holders.

47    At [355]:

Unlike a pastoral lease, however, the interest granted by a special lease was not precarious. There was no general provision which would determine the lease upon reservation, sale or its other disposal by the Crown. Nor were there provisions applicable to special leases that were equivalent to s 106 of the Land Act 1933 which, in the case of pastoral leases, reserved to the Crown the right to depasture stock and gave to “any person” the right to pass over any part of the land that was unenclosed or, if enclosed, was unimproved. As the Full Court rightly held, the statutory reservation in favour of Aboriginal peoples did not apply to a special lease, even if that special lease were for the purpose of grazing.

(Citations omitted.)

48    Callinan J dissented in relation to the use of this concept: see [702]-[703].

49    The primary judge employed the description “precarious” in much of his reasoning about the specific leases. For example, at [110], in a passage which typifies his Honour’s method in making findings about each of the individual leases, and in relation to one of the scrub leases:

The conditions which attached to Scrub Lease No. 287 derived from various sources, including the CL Act 1889, regulations and the terms of the lease instrument itself. Scrub Lease No. 287 contained the following conditions (which the applicant submits indicate that the lessee held a “precarious interest” similar to the case with a pastoral lease):

(a)    The lessee was required to destroy box ironbark and gum seedlings and suckers, specified wattle and other scrubs.

(b)    The lessee was required to preserve emu, warrior, cherry, dwarf, oak, and currant bush scrubs. The lessee was also to preserve currajong, belar, wilga, she-oak, berrigan, and rosewood trees. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs for stock-feeding purposes.

(c)    The lessee was required to preserve pine box and iron bark trees of a certain dimension and useful for fencing, mining, or building, or railway sleepers, but was entitled to cut and use any timber for fencing or other improvements in the lease area.

(d)    The lessee was otherwise to destroy all trees and saplings by ringbarking or otherwise.

(e)    The lessee could not cut or remove any timber for sale.

(f)    The lessee was to begin operations within 3 months, doing a particular amount each year, and once cleared, was to keep the lease clear.

(g)    The lessee was to take effective steps to destroy rabbits, wallabies, wild dogs, dingoes, wild pigs, foxes and other noxious animals, and to continue to do so during the term of the lease.

(h)    The lessee was not to overstock the land either wholly or in part.

(i)    The lessee was required to fence the eastern boundary of the land with a substantial netting fence.

(j)    The lessee was to provide a sufficient water supply for the full stocking of the land by the excavation of a tank or the construction of a tank or dam.

(k)    The lessee was to maintain all Crown improvements.

(l)    The Governor could at any time withdraw any land from the lease required for mining, mining purposes, residential lease, saw-mill site or for any public purpose. The Governor could withdraw the whole or any part of the lease at any time for the purposes of settlement in the event of a railway or tramway being constructed within 20 miles of the lease. After 10 years, the Governor could withdraw the whole or any part of the lease for settlement. Subsequently, after the term of the lease was extended, the Governor could only do so if the Minister was of the opinion the land could be profitably occupied for agricultural purposes. In no case was the lessee entitled to compensation, other than for improvements on the land withdrawn.

(m)    Any holder of a miner’s right following the occupation of a miner or prospector could graze on the lease horses or other animals necessary for their subsistence and for carrying on mining or prospecting.

(n)    The lessee could not sublet without the Minister’s consent in writing.

(o)    The lessee could not cultivate the land without the Minister’s consent in writing.

(p)    All public rights in roads were preserved.

(q)    The lease was deemed to be a lease for pastoral purposes within the meaning of the Mining Act 1906 (NSW) and as such was subject to the operations of that Act.

(r)    All persons authorised to do so were to have full right to enter the land for the purpose of cutting and removing timber, without interference by the lessee, and the lessee was to provide convenient gateways and openings where required. The lessee was to permit timber getters to camp and graze their teams over the lease.

(s)    Any person authorised by the Survey Branch of the Lands Department could access Trigonometrical Reserve 39,226 in the lease area.

(t)    If any condition was not complied with the lease was liable to forfeiture.

(Emphasis original.)

50    At trial, the State had made submissions on the limitations of using such a concept, and at a general level the primary judge accepted that submission (at [118]):

Finally, the State contended that there was little utility in approaching the relevant issues by reference to the question whether a Scrub Lessee’s rights were “precarious” or by application of the notion that exclusive possession refers to a landholder’s right to exclude everyone and anyone for any reason or no reason. This was because, in the modern world, virtually all land tenures are subject to third party rights, some held by private parties and others held by government agencies, which erode a landholder’s level of control. This particular contention should be accepted (see Introduction at [65]), at least at the level of generality at which it was put.

51    Nevertheless, ‘precariousness’ is a concept which features prominently in the primary judge’s reasoning on each specific lease. On appeal, under some of the grounds, the State criticised the primary judge’s fact-finding on whether the interests granted by a specific lease could be described as “precarious”. The State did not submit, nor could it given the passages in Ward to which we have referred, that an inquiry which employed the concept of “precariousness” for the purposes of deciding whether the grant of an interest had extinguished native title was erroneous.

The scope of the appeal

52    The State has not appealed from the primary judge’s findings about all of the leases in issue at trial, including findings which were unfavourable to the State’s contentions in whole or in part. There are many examples where the reasoning of the primary judge about the effect of the grant of some leases, from which there is no appeal, is not materially different from his Honour’s reasoning on the effect of those leases from which there is an appeal. There is thus inconsistency in the State’s approach which has been left unexplained. Whilst that approach may be the subject of general disapproval, we deal with each finding challenged on its individual merits.

53    There is no appeal from the primary judge’s orders in relation to any of the 18th section leases in Schedule 5 of the separate questions. In relation to each of the 18th section leases, the primary judge concluded that they did not confer “a right of exclusive possession over particular lands or waters”, within the meaning of s 23B(c)(viii) of the Native Title Act.

54    There is also no appeal from the primary judge’s conclusion on several settlement leases, even though there were conclusions adverse to the State in the answers to the separate questions about Scheduled interests and exclusive possession.

(a)    Settlement Lease No. 1898/39 Nyngan. There was no appeal made in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that part of the area covered by the lease had been converted to Conditional Lease No. 1927/15 Nyngan, and this had the effect of wholly extinguishing all native title in the land and waters covered by that part of the lease.

(b)    Settlement Lease No. 1911/2 Nyngan. There was no appeal in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that part of the area covered by the lease had been converted to Conditional Lease No. 1929/4 Nyngan, and this had the effect of wholly extinguishing all native title in the land and waters covered by that part of the lease.

(c)    Settlement Lease No. 1909/3 Coonamble. There was no appeal in relation to this lease, although the primary judge concluded the lease was neither a Scheduled interest nor a lease which conferred “a right of exclusive possession over particular lands or waters”. However, the primary judge concluded that the grant in 1936 of a lease in perpetuity had the effect of wholly extinguishing all native title in the land and waters covered by this lease.

55    Next, there was no appeal against the primary judge’s conclusions in relation to Western Lands Lease No. 11935. The primary judge found that, while the grant of this lease was the grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act, it did not confer a right of exclusive possession over particular lands or waters within section 23B(2)(c)(viii) of the Act.

56    In the category of special leases for a term (Schedule 7), there was no appeal from the primary judge’s findings in relation to Special Lease No. 1955/7 Warren. The primary judge found the grant of this lease conferred “a right of exclusive possession over particular lands or waters”, within the meaning of s 23B(2)(c)(viii) of the Native Title Act, such that the act of granting or vesting that special lease was a “previous exclusive possession act” within the meaning of s 23B of the Act. His Honour also found the grant of this lease had the effect of wholly extinguishing all native title.

57    In the Schedule 7 category, there are five other special leases about which there is no appeal from the primary judge’s findings: Special Lease No. 1961/48 Warren; Special Lease No. 1958/2 Coonamble; Special Lease No. 1924/16 Walgett; Special Lease No. 1952/6 Coonamble; and Special Lease No. 1957/42 Nyngan. For all of them, the grant of the lease was found in Ohlsen to fall within one of the categories in s 23B(2)(c) of the Native Title Act (it presently does not matter which), to have conferred a right of exclusive possession and therefore to have wholly extinguished native title in the area covered by the lease. We note the primary judge accepted the State’s arguments that two of these leases were “commercial leases” within the meaning of s 23B(2)(c)(iii) Native Title Act: see [600]-[607]; [615]-[619].

58    Finally in relation to Schedule 9 of the separate questions, and the question about Canbelogo Common, the primary judge found that neither the reservation of the land as a “temporary common” under s 101 of the CLA 1884 or under s 39 of the CLA 1889, nor the appointment of trustees for the land, nor the operation of any legislation which applied to the land conferred a right of exclusive possession so as to extinguish native title over the reserved land. There is no appeal from those findings.

The appeal

59    There are 108 grounds of appeal. Most of them are expressed in a conclusory way, identifying the finding alleged to be erroneous, but with no articulation of why the finding is said to be erroneous. When the State’s written submissions in support of the appeal were received, the State focussed on what it described as “overarching errors” in the primary judge’s findings, without identifying the grounds of appeal to which these overarching errors were said to relate. The notice of appeal itself contained no reference to “overarching errors”. The Court requested the State provide a document linking its written submissions with the grounds of appeal. The State did provide a table in response to this request, which has been of some assistance. Nevertheless, even during oral argument it was, as the Court observed, difficult to understand how the State’s submissions related to particular grounds of appeal.

60    It is not apparent that the description of a group of errors by the primary judge as “overarching” is appropriate. Few of the errors in the grounds of appeal can be described as errors of legal principle. Many concern the application of established principle to the facts. As the argument developed orally, it appeared that what was being said was that there was a category of errors that were said to be common to the primary judge’s findings about a number of individual leases, or categories of lease. We understand that to be what the State meant by the use of the term “overarching”.

61    Ultimately, the Court will decide the appeal on the basis of the grounds of appeal as they are articulated. If the State’s submissions stray beyond the grounds of appeal, or were not in reality able to be tied back to the grounds of appeal, submissions of that kind are unlikely to be able to establish error on the part of the primary judge, as the error is alleged in the grounds of appeal. Particularly in a complex appeal with so many grounds, there is a responsibility on the moving party to ensure that its submissions are plainly tied to the way the grounds of appeal are expressed. Otherwise, the discharge of the appellate task becomes impracticable.

The State’s submissions in summary

62    Where necessary, we return to the detail of the State’s submissions in particular in explaining our resolution of the grounds of appeal. What follows is a summary of the way the State’s contentions were put, with particular reference to how they were put in oral argument. Not all grounds of appeal were developed in any detail in writing, or orally. Therefore, this summary concentrates on what senior counsel developed in oral submissions. The respondents generally defended the reasoning of the primary judge and therefore only the points developed by the respondents that went beyond the primary judge’s reasoning will be set out below.

63    By using the table provided by the State, we have attempted to match each heading with the grounds of appeal said by the State to include that argument.

64    In contextualising the primary judge’s reasoning, the State began its case with some general submissions about exclusive possession and how the existence of reservations and conditions should, or should not, affect its contention that the leases in question conferred a right of exclusive possession. It submitted that exclusive possession has sometimes been described as a right to exclude anyone and everyone for any or no reason (e.g., Western Australia v Brown [2014] HCA 8; 253 CLR 507 at [36]). However, the State submitted that the concept of exclusive possession “has never been given a literal interpretation”, as the primary judge recognised at [65] of Ohlsen. In oral argument, senior counsel for the State also contended that what was said in Brown at [36] could not be taken “literally”. Indeed, in the State’s submission, reservations and conditions, either in a common law lease or a statutory lease, implicitly confirm the existence of exclusive possession. It was submitted that these sorts of conditions and reservations include reservations for the Crown’s mineral rights and mineral exploration rights, restrictions on the taking of timber or destroying of trees, the authorisation of entry by public officials for specific purposes, restrictions on interference with roads or tracks and permission for the withdrawal of land from the lease for various purposes.

65    In support of these submissions, the State took the Court to the dissenting reasons of McHugh J and the dissenting reasons of Callinan J at [551] and [707] (respectively) in Ward:

551    The grant under the 1864 Regulations also reserved the right of “aboriginal natives” to enter upon the land “for the purpose of seeking their subsistence therefrom in their accustomed manner”. But this reservation did not negative the grant of the legal right to exclusive possession. Indeed, that reservation was about as clear an indication that the pastoral lessee had the legal right to exclusive possession as could be imagined. The reservation was necessary to prevent the lessee from excluding the Aboriginal natives. Unless the lease had given the lessee the legal right to exclude all others, the reservation would be irrelevant. The same comment can be made in respect of reservations that allowed third parties to enter the demised premises for various purposes. Anyone at that time who thought that such reservations were inconsistent with the legal right to exclusive possession simply did not understand the law relating to leases. No doubt then, and certainly now, few leases drawn by conveyancers did not contain one or more reservations and exceptions. But as Glenwood Lumber Co v Phillips, Dalton v Eaton, Whangarei Harbour Board v Nelson, Goldsworthy Mining Ltd v Federal Commissioner of Taxation and numerous other cases show, the reservation of a right of entry to the grantor or others is not only consistent with, but indicative of, the grantee having the legal right to exclusive possession. To reject that proposition would be to deny the efficacy of the work of generations of conveyancers who have never doubted that they were creating leases although the instrument of grant contained extensive reservations and exceptions in favour of others. Exceptions and reservations are not inconsistent with the right of the grantee to exclude any person who does not come within an exception or reservation. They are not inconsistent with the right of the grantee to bring ejectment or sue for damages for trespass to land. Exceptions and reservations do not put the grantee in the position of a licensee who, by definition, cannot bring an action for ejectment or trespass to land but must depend on his or her contractual rights.

…

707    In Goldsworthy Mining Ltd v Federal [Commissioner] of Taxation, the appellant there also sought to claim taxation deductions for improvements on leased land. The Solicitor-General for the Commonwealth argued that the taxpayer was not a lessee because the instrument did not confer a right of exclusive possession and was therefore not a lease. In support of this argument, the Solicitor-General pointed to several extensive reservations and limitations on the purported lessee’s rights. These included a reservation in favour of the Crown, its agents, invitees and licensees to pass, repass and to navigate vessels in or over the demised premises; a reservation of all minerals and petroleum on or below the surface of the premises; a requirement that the lessee permit the Crown and any vessel to use any part of the premises for navigation, anchorage or other purpose incidental to shipping; and a requirement that the lessee would consent to the granting of easements or rights in or over the premises as might from time to time be necessary for the overall development or use of the harbour of Port Hedland. Despite the breadth of these reservations, Mason J found that they were compatible with a right of exclusive possession. As he explained:

“Although these provisions restrict the use to which the [lessee] may put the premises and impose obligations of an important kind, in my view they are not inconsistent with existence of a right of exclusive possession in the [lessee]. Indeed the provisions assume the existence of that right. Some of the provisions are novel but their introduction is explicable by reference to the relationship of the premises to the navigable channel which it underlies and to the harbour of Port Hedland.”

    These cases demonstrate that substantial reservations and qualifications on a lessee’s rights do not by any means point to an absence of exclusive possession. They also demonstrate that there are no closed categories of leases or of provisions that may be contained in them. As ways of life, of commerce, of grazing, of cultivation, of using land generally have changed and will continue to change, so too will the arrangements of lessors and lessees to give effect to those changes. The ingenuity of conveyancers is constantly called upon in any sophisticated society to devise terms adapted to the particular circumstances of that society and commercial activity conducted within it. A modern lease of a store in a large suburban drive-in shopping centre, with its strict requirements, de facto profit sharing between lessee and lessor, expanded rights of entry for the lessor, and obligations imposed as to trading hours, would look to a nineteenth century conveyancer a rather different creature from a lease of a country estate in England, or a nineteenth century London building lease. The presence of exceptions and reservations in forms adapted to particular times and circumstances should not, and does not, of itself have the consequence that what the parties have described and treated as a lease is not to be regarded as a lease and does not confer exclusive possession (save, of course, to the extent expressly reserved or excepted).

(Citations omitted, emphasis added.)

66    In the State’s submission, the reasoning of McHugh and Callinan JJ in that case was consistent with that of the majority. Although the State acknowledged that the reasons of Gaudron J in Wik at 145 considered conditions and reservations on the leases in that proceeding to be an indication that exclusive possession was not conferred, the State directed the Court to [202]-[203] of Callinan J’s reasons in Wilson, in which his Honour expressed agreement with the minority in Wik that reservations do not tell against a right of exclusive possession.

67    The State submitted that the restrictions and conditions imposed on a number of the interests subject of the separate questions, but particularly Western Lands Lease No. 3469, were “effectively indistinguishable” from the restrictions and conditions imposed on the western lands lease that was determined in Wilson to have conferred exclusive possession. Although the primary judge distinguished the majority’s reasoning in Wilson on the basis that it was concerned with a perpetual lease, and although the State acknowledged that perpetuity of term would normally be an indication that a lease does confer exclusive possession, the State submitted that the reasons of Gleeson CJ and Callinan J in Wilson contained an expression of doubt that there is “any real juristic difference between leases for a term and perpetual leases”.

Errors described as “overarching” or common to more than one category of lease in issue

The use made by the primary judge of pastoral leases (Grounds 8, 21, 22, 38, 50, 51 and 13, 46, 59, 63, 67, 81, 88, 90)

68    The State submitted that the primary judge made assumptions about the rights conferred by generic leases for grazing or pastoral purposes. It submitted that the primary judge also made assumptions about the rights conferred by certain pastoral leases under the CLA 1884 and the CLA 1895. Central to the State’s submission was the proposition that it cannot be assumed that a pastoral lease will or will not extinguish native title; the answer to that question requires analysis of the nature of the relevant pastoral lease. In the State’s submission, the primary judge relied on those assumptions to conclude that the interests in question did not confer exclusive possession and, in doing so, his Honour failed to objectively inquire into the rights created by the relevant interests, as well as what should be drawn, or inferred, from some of the conditions or restrictions attached to the leases. At [3] of the State’s written submissions, these were listed as overarching errors “(i)” and “(ii)”.

69    For example, the primary judge erred, the State contended, by assuming that, because they were similar to pastoral leases, the scrub leases conferred rights that were capable of coexisting with native title rights. His Honour should not have assumed that a pastoral lease confers non-exclusive rights and therefore that the holder of a scrub lease had rights of a similar nature. The holder of a scrub lease was not restricted to using the leased area for grazing, because the responsible Minister at the time could consent to cultivation. The State advanced similar arguments in relation to the primary judge’s findings in relation to the improvement leases and the homestead leases.

Reliance on the size of the land covered by the leases (Grounds 11, 24, 37, 83)

70    The State submitted that the primary judge erred by relying on the size of the leased area as a significant factor in deciding whether the lease conferred a right of exclusive possession.

71    The State submitted that there is no part of the ratio in Wik to suggest that the size of a lease is relevant or at least significant to determine whether it conferred a right of exclusive possession. In support of this submission, the State referred to [196] and [714] in Ward. The State emphasised that the special lease for grazing considered in Ward was over 90,000 acres in size, and the High Court determined that it conferred exclusive possession. The State also submitted that size did not play a part in the majority’s reasoning in Wilson. While the State acknowledged that size played a part in Wik “in a handful of places”, it hastened to emphasise that the size of the leases in Wik (342,000 acres and 716,000 acres) was much greater than that of the leases subject of the separate questions.

Discounting of the lessee’s rights to bring actions in trespass (Grounds 15, 30, 41, 44, 54, 66, 79, 86, 92, 100, 106)

72    The State submitted that the primary judge erred by failing to consider, or give any weight to, the right of a holder of a special lease for a term to bring an action in trespass against wandering stock, which was recognised by s 130 of the CLA 1884, s 55 of the CLA 1895 and s 250 of the CLCA 1913: provisions that restricted the ability of a holder of a homestead lease or a special lease to bring an action in trespass unless the land trespassed upon was fenced. In the case of s 55 of the CLA 1895 and s 250 of the CLCA 1913, this restriction was on actions in trespass of stock. The State submitted that the provision recognised that there was a common law right to bring an action in trespass.

73    In support of this submission, the State directed the Court to Cleaver v Mackinnon (1910) 10 SR (NSW) 377, in which tenure granted under s 2 of the Crown Lands (Homestead Selections and Settlement Leases) Act 1896 (NSW) was held to confer a right to “take the necessary steps to eject any person who disputes” the tenant’s rights to possession of the land. The State also took the Court to Fergusson v Mackinnon (1912) 12 SR (NSW) 406, in which s 55 of the CLA 1895 – which the State characterised as similar to s 250 of the CLCA 1913 – was held to be predicated on a common law right to bring an action in trespass against stock. The State relied on Smith v Ward (2002) 20 SR (NSW) 299 in support of a submission that, because the CLCA 1913 was a consolidating Act, it was not intended to radically change the legislation that it consolidated.

74    The State submitted that where a right to bring an action in trespass is recognised in statute, that recognition is a good indication that exclusive possession has been conferred because it is only exclusive possession, or what it referred to as “legal possession”, which may found an action in trespass. A common law right to bring an action in trespass is incompatible and inconsistent with the continued recognition of native title rights, the State submitted.

75    The State advanced similar arguments in relation to the scrub leases, Settlement Lease No. 1895/16 Coonamble and Settlement Lease No. 1911/9 Nyngan, the improvement leases, the homestead leases and Western Lands Lease No. 3469.

Failure to address State’s arguments about the exclusion of express limitations on the rights of the lessees, the permission of persons to enter the lease area and provisions authorising the resumption of the lease area (Grounds 7, 16, 28, 36, 62, 68, 72, 94, 98)

76    The State submitted that the primary judge did not squarely address its argument at trial that the imposition of express statutory limitations on the rights of a lessee, the presence of provisions permitting officials and others, in some circumstances, to enter the lease area, and provisions authorising the resumption of land for public purposes were indicative of the conferral of exclusive possession. This contention appeared to align in principle with what the State had submitted about the effect of reservations and conditions, which we have summarised above.

77    We note that, although the State did not have a cross-reference in its table to these grounds, the following grounds appear to make the same, or a similar, argument: see grounds 6, 27, 58, 60, 61, 77, 103.

Reliance on factors which should have supported extinguishment, rather than no extinguishment (Grounds 13, 25, 35, 45, 49, 53, 59, 64, 81, 88, 89, 90, 101, 102, 107, 108)

78    This appeared to be another way of putting the same contentions we have already described – the State submitted that the primary judge considered certain factors, such as the requirement to take up residence or a requirement to fence, as supporting the absence of exclusive possession, when they actually suggested that exclusive possession had been conferred.

Discounting or failing to take into account the language used in the governing statute (Grounds 14, 40, 65, 80, 87)

79    The distinction the State sought to make before the primary judge by its emphasis on the fact that the legislation in question used the term “lease” rather than licence, was contended by the State to have been misunderstood or not appreciated by the primary judge. Despite the primary judge’s references to the State’s argument regarding the “nomenclature” (see, e.g., Ohlsen at [72] and [271]), the State submitted his Honour paid little or no regard to the language used in the governing statute and in the relevant lease instrument, and did not give any weight to the use of language typically associated with the grant of a lease at common law.

Alleged errors concerning specific leases

80    We set out here an overview of the errors alleged by the State to have been made by the primary judge specifically relating to one kind of lease. Again, this summary is taken largely from what was developed in oral submissions by senior counsel for the State.

Scrub leases (Grounds 1-16)

81    In a variation of the wider argument about the way restrictions and conditions should have been approached by the primary judge, the State submitted that the conditions imposed on the scrub leases indicated an intention to confer exclusive possession, because it would have been easier to comply with the conditions requiring the extermination and exclusion of vermin if one had control of access to the land. The State also submitted that the requirement that the land be fenced had a similar effect. The ability of a scrub leaseholder to apply for a “homestead selection” under s 27 of the CLA 1895 and s 193 of the CLCA 1913 was said by the State not to have been adequately taken into account by the primary judge, given that the State had submitted this was a “pathway to freehold”.

82    Again, in a variation of its overall contention about the irrelevance of the size of the land leased, the State submitted that the primary judge erred in assuming that, because they were granted over extensive areas of land, the leases were likely to confer rights that coexisted with native title rights. In the State’s submission, no such assumption could be made. The State relied on Wik, in which it was held that a court must examine the characteristics and terms of the lease before it, rather than making an a priori assumption about the purpose of the lease and its compatibility with native title rights (see Wik at 115-116, 152, 195 and 245).

83    The State pointed to the absence in the scrub leases of any reservation preventing the lessee from refusing access to the leased land by government officials and the public. The State emphasised that reservations of this kind in the mineral leases considered by the High Court in Brown were held to mean that the mineral leases in Brown did not confer exclusive possession. Since those reservations did not exist in the scrub leases, the primary judge erred in reasoning that the scrub leases did not confer exclusive possession because they were subject to the Mining Act 1906 (NSW).

84    The conditions on the scrub leases that deemed the leases to be pastoral leases under the Mining Act 1906 created a statutory fiction which demonstrated, the State contended, that the leases were not in fact pastoral leases and that, but for the condition, the lessee could have excluded miners and others from doing what they wanted on the land. The State submitted that conditions allowing authorised persons to enter the land to search for and obtain minerals were also found in the leases in Ward and Wilson and were common in grants of freehold title.

Special leases for a term (Grounds 69-94)

85    The State submitted that s 75 of the CLCA 1913, which permitted the granting of special leases for a term, permitted the grant of an interest that would ordinarily be taken to require a degree of control about entry to the land. In that respect, the State submitted, the special leases for a term were “just like the special leases in Ward”, which were determined to confer exclusive possession.

86    The State submitted that the conditions which applied to the special leases for a term that were at issue on appeal were not relevantly more precarious than the conditions applying to the two special leases for a term that the primary judge determined conferred exclusive possession.

87    The State submitted that several of the conditions which applied to the special leases for a term naturally implied that the interest was granted as a lease at common law. The State noted, by way of example, the restriction on transferring the special leases without the written consent of the Minister, except by way of mortgage or release of mortgage. The State contended that the imposition of such a restriction assumed that there was an underlying authority to transfer the special leases.

88    The State added that the right of the holder of a special lease for a term to apply for its conversion into a lease for perpetuity supported the conclusion that the special leases for a term conferred exclusive possession. In the State’s submission, it was unlikely that the legislature intended that an interest that did not confer exclusive possession could be converted into a lease in perpetuity. Senior counsel did acknowledge that the right to convert these leases was only introduced in 1968. Similar arguments were made about the entitlement of a special lessee to apply for conversion of the lease to a conditional purchase lease.

89    The extent of the land used for storage under Special Lease No. 1939/1 Warren was said to be another matter the primary judge gave too much weight. There was no basis, the State contended, for the primary judge’s inference that “lucerne or a similar crop” was stored on the land and no basis for his Honour’s inference that that storage “would not have taken up much of the 36 acres” (see Ohlsen at [583]). Reliance on such a factor was also erroneous because the question was not how the rights under the lease were exercised, but what rights were conferred by the lease instrument. The State submitted that the primary judge’s inferences were irrelevant.

90    The condition on Special Lease No. 1939/1 Warren that the leaseholder could not interfere with access to stock routes and tracks was also submitted to have been a factor on which the primary judge placed too much weight. The State submitted that stock routes were open only to limited use for restricted purposes, and the presence of a stock route did mean the rights conferred by the lease were less than exclusive possession. A similar contention was made about Special Lease No 1964/1 Coonamble. In oral argument, senior counsel for the State did acknowledge, however, that the objective purpose of the grant of an interest must be assessed in order to consider whether it is likely to bring with it a need for exclusive possession.

91    In the alternative, the State submitted that Special Lease No. 1939/1 Warren was a Scheduled interest. Many of the separate questions about the individual leases were posed in the alternative, with the category of “scheduled interest” being one the alternatives. In the State’s submission, this lease was granted solely or primarily for storage purposes and, therefore, fell within the definition of a Scheduled interest by operation of subclause 3(8) of Schedule 1 to the Native Title Act. Subclause 3(8) deals specifically with leases under the WLA 1901 or the CLCA 1913, and lists a very large number of purposes. The lease must be one that “permits the lessee to use the land or waters covered by the lease solely or primarily” for one of the specified purposes.

92    The State submitted that the primary judge’s determination that the lease was granted for “storage and access purposes” and therefore not “solely or primarily” for storage purposes, was erroneous, since there was nothing to necessarily preclude the leaseholder from using the land primarily for storage purposes.

93    The State submitted that the primary judge erred in determining that the conditions imposed on Special Lease No. 1952/1 Warren made that lease precarious. In the State’s submission, the requirement that the lease had to be used for a specified purpose and the fact that that lease would have been forfeited if the leaseholder had failed to erect and maintain a fence around the land could not support a determination that the lease was precarious in any material way. The State compared the lease with Special Lease No. 1955/7 Warren, which the primary judge determined was not precarious. The State also compared the lease with the prescribed leases in Ward, which would likewise have been forfeited if the leaseholder had not complied with the conditions imposed on them, but which were nevertheless determined to confer exclusive possession. Furthermore, the State submitted that the fact that there was a requirement to fence the land would favour a right of exclusive possession, not the contrary, especially since the primary judge had considered a requirement to fence the land subject of Special Lease No. 1958/2 Coonamble supported a finding of exclusive possession.

Special leases for grazing (Grounds 95-108)

94    These grounds related to Special Lease for Grazing No. 1908/51 and Special Lease for Grazing No. 1957/6.

95    The State’s contentions about these leases followed the same substantive form as its earlier submissions, namely that the primary judge erred by: not affording sufficient weight to the language used in the legislative provision under which the leases were granted, which the State submitted was suggestive of a common law lease; seeing restrictions as tending against rather than in favour of exclusive possession; not affording sufficient weight to the significance of references to a right to bring an action in trespass (even if only in the context of limiting that right) and the submission that the ability to convert the lease into a conditional purchase or a perpetual lease meant it was unlikely that the legislature did not intend it to confer exclusive possession.

Settlement leases (Grounds 17-30)

96    The primary judge’s error in respect of these leases was said to be his Honour’s failure to characterise them as Scheduled interests under the Native Title Act. The State submitted the terms of the leases did not preclude the land being used for agriculture or horticulture, and contended the primary judge erred in finding the lessees did not have permission to use the land solely or primarily for agriculture, especially since the primary judge had accepted that s 24 of CLA 1895 did not impose conditions or limitations on the use by the lessee of the whole of the land.

97    In the alternative, the State contended the primary judge erred in finding the settlement leases did not confer a right of exclusive possession. Again, the potential to use the leases for agriculture should have led to this conclusion, the State contended, rather than the focus being (as the State contended it was) on the fact the lease was used for grazing purposes.

98    Second, the State submitted that the conditions imposed on settlement leases to require the lessee to reside on the land and make it the lessee’s bona fide residence for the whole term of the lease, to fence the land, to keep the land free of pests, not to assign or sublet the land and to forfeit the land in the event of a breach of a condition were not incompatible with a right of exclusive possession. Such conditions all indicated that the land was supposed to be lived on. Consistently with other arguments on the appeal, the State also contended that the existence of a restriction (here, on assigning or subletting the land) implied that without such a restriction, the land could have been assigned or sublet. Assignment or sub-letting demonstrating, the State submitted, a right in the nature of exclusive possession, and rebutting any suggestion of ‘precariousness’.

99    The State further contended that, with the settlement leases, the power to resume the lease in whole or in part was narrower in scope than a similar power conferred in respect of the special leases, yet the primary judge (correctly) found those special leases did not confer a ‘precarious’ interest. The resumption provisions were also contended to be narrower than similar provisions in the pastoral leases in Ward. The State submitted that the primary judge erred in deciding that a condition on the settlement leases that deemed the presence on the land of stock not owned by the lessee to be evidence of subletting was evidence that the settlement leases were precarious. In the State’s submission, that condition had an evidential purpose, as a way of ensuring the lessee did not allow other people’s animals to graze on the land.

100    Third, the State submitted that the primary judge erred in giving insufficient weight to s 55 of the CLA 1895, repeating its overarching submission in relation to that provision: see [72]-[74] above. The State submitted that provisions such as s 55 are not similar to the provisions in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 and Wik, which made it an offence to be in unlawful occupation of Crown land. The State submitted that the provisions in Mabo and Wik were penal provisions that applied across all land, whereas the provisions that applied to the leases at issue on appeal were predicated on an existing common law right conferred by the relevant interest. In connection with this submission, the State submitted that pre-Mabo Queensland legislation conferring property rights was not to be approached on the basis it did not deal directly with the exclusion of native title holders. Rather, relying on Gleeson CJ’s reasons at [12] in Wilson, the correct approach is to simply to work out what rights were in fact conferred, and measure them for inconsistency with native title rights. The State submitted that comments to a similar effect were made by the majority of the High Court in Ward at [78] and [181]-[183]. The State further submitted that [51]-[54] in Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 explains why native title rights cannot co-exist with a right of exclusive possession or similar rights conferred by fee simples or leases, as they are normally understood.

101    The primary judge was also said to have given insufficient weight to the fact that the holder of a settlement lease could apply for a homestead selection and a conditional purchase, which were tenures akin to a fee simple. In oral argument, senior counsel fairly accepted the potential to transform the interest held under a settlement lease was just that; acknowledging that the holder of a settlement lease did not have the exclusive right to apply for a homestead selection or a conditional purchase and there were third parties who were also entitled to apply for those interests.

Homestead leases (Grounds 42-54)

102    In respect of these leases, the State made further arguments about factors it contended were irrelevant having influenced the primary judge’s reasoning. One such factor was said to be that homestead leases could only be granted in the Western Division of New South Wales, which the primary judge described as the most remote and least arable part of the State. In the State’s submission, by noting this factor as ‘not unimportant’ in assessing the precariousness of the homestead leases, the primary judge had characterised this factor as ‘important’. Yet no evidence was adduced at trial about the general characteristics of land in the western division, and – even if it were accepted that the land was remote and not arable – those characteristics said nothing about the rights conferred by homestead leases. Therefore, according to the State, it was a mistake for the primary judge to give considerable weight to the factor.

103    Again, the State submitted the primary judge equated homestead leases with pastoral leases, in terms of their character and the rights they conferred, despite (at [328]) acknowledging substantive differences between the two kinds of leases in terms of the size of the holdings and different residence requirements for the leaseholder. Homestead leases also had a longer term than the pastoral leases, a matter the State contended the primary judge overlooked in his (erroneous) comparison.

104    In a similar vein, the State contended the primary judge had no basis for assuming that pastoral leases under s 78 of the CLA 1884 would not have conferred a right of exclusive possession. The primary judge failed to account for the fact that the pastoral leases differed from homestead leases at least insofar as the latter were not expressly confined to pastoral purposes. In response to a question from the Court, senior counsel for the State noted that, regardless of the practical feasibility of using the homestead lease lands for purposes other than pastoral purposes, it does not follow that one must read down the legal right of a lessee to use the land for purposes other than pastoral purposes.

105    The State submitted that the primary judge failed to give sufficient weight to the rights of the lessees and the obligations on the lessees to reside on the land, to hold the land for their exclusive benefit and to fence the land. In the State’s submission, those obligations suggested that the lessee was given a substantive interest that differed from that of a licence holder, and that the requirement to fence the land was suggestive of exclusive possession. It was erroneous, the State contended, for the primary judge not to find the five-year residency period to be material, because of a contrast with a requirement to reside on the land in perpetuity.

106    Other reservations were mistakenly seen by the primary judge as telling against exclusive possession, the State submitted. For example, the finding at [331] of the primary judge’s reasons about the Governor’s power to withdraw land leased under a homestead or pastoral lease for any public purpose told against a right of exclusive possession. There were similar powers reserved in the leases considered in Ward and Wilson, but the fact land can be resumed for public purposes was not seen in those cases as necessarily inconsistent with exclusive possession. Indeed, since the holders of homestead leases enjoyed a greater entitlement to compensation for resumption than that of the holders of the leases in Ward and Wilson, the primary judge should have taken this as suggesting an exclusive possession right.

Improvement leases (Grounds 31-41)

107    The State submitted that the primary judge erred in considering the “intrinsically inferior” nature of the land subject of the improvement leases as a factor indicating that exclusive possession was not conferred. Together with the primary judge’s consideration of the size of the lease area (see [70]-[71] above), the State submitted these factors were not relevant in determining whether exclusive possession was conferred.

108    The reservation of miners’ rights to enter land under improvement leases was also erroneously treated by the primary judge, the State submitted. First, the deeming of improvement leases as pastoral leases for the purposes of the Mining Act 1906 created a statutory fiction which suggested that the legislature did not otherwise consider improvement leases to be pastoral leases. Second, the mining reservation was not inconsistent with a right of exclusive possession, as was said to have been the case in Ward.

109    Referring to one of the “overarching” grounds, the State submitted that conditions requiring the Minister’s consent to sublet or assign the lease or rights of entry, such as the right to cut and remove timber, did not suggest rights less than exclusive possession, and the primary judge erred in so finding. On the contrary, it would have been unnecessary to impose a restriction on subletting and assigning those rights if they were not otherwise taken to have been conferred by the improvement leases. The right to sublet or assign a lease being a usual feature of a common law lease, the improvement leases should have been seen by the primary judge as analogous to common law leases, and therefore conferring a right of exclusive possession.

110    Conditions requiring the lessee to carry out extensive clearing works, including by removing trees, noxious weeds, destroying various animals, and improving and maintaining the leased area, should have been treated in the same way by the primary judge, but were not. This was work of an enduring character, indicative of exclusive rights. Conditions requiring the lessee to fence the land, the entitlement to apply for a homestead selection and requirements that an incoming tenant pay for improvements that had been made were all also indicative of exclusive possession.

Western lands leases (Grounds 55-68)

111    The State submitted the primary judge gave insufficient weight to the fact that the language of the instruments for the western lands leases were in terms similar to the terms of a lease. As with other categories of lease, the State also challenged the approach taken by the primary judge to the conditions imposed on these leases, being conditions such as requiring the lessee to clear the land of weeds and various animals, to improve the condition of the land, and to fence the land. The State submitted these conditions demonstrated the conferral of an enduring and secure interest.

112    As with other categories of leases, the State also submitted the primary judge erred in his consideration of the reservations for mineral rights, referring to the reasons of Callinan J at [187] in Wilson in support of this submission. Although the primary judge distinguished Wilson on the basis that the interests in that case were of a perpetual term, whereas the western lands leases were granted for a fixed term, the State challenged the relevance of this distinction, contending it did not affect the nature of the rights conferred. The State referred to the dicta of Gleeson CJ at [20] in Wilson in support of that submission.

113    Finally, the State submitted, as it had in relation to other leases, that the primary judge erred in treating rights conferred on specific third parties, or rights of resumption, as supportive of “precariousness” of the interests granted. Nor, in the State’s submission, should the primary judge have seen a restriction on interference with reserves, roads or tracks as material, when there were no such features in the majority of the parcels being considered.

Resolution of the Appeal

114    This section of our reasons sets out some findings and observations relevant to many of the grounds of appeal, then considers the correct approach to determining when there is a conferral of a “right to exclusive possession” under s 23B of the Native Title Act in particular, then considers the State’s contentions on errors alleged to be common to the findings of the primary judge about more than one lease, and finally turns to errors said to relate to specific categories of leases, or specific leases.

General points relevant to most if not all grounds of appeal

115    Senior counsel for the State correctly accepted in oral argument that the task before the primary judge was one of characterisation. He correctly accepted that there may have been a number of factors which were capable of contributing to the characterisation arrived at. Nevertheless, many of the challenges made to the findings of the primary judge reveal a fundamental misunderstanding of the characterisation task performed by his Honour.

116    The task of deciding whether a lease falls within one or more of the terms of s 23B and in particular whether the lease “confers a right of exclusive possession” requires the consideration of all factors or features which tend for or against that characterisation. Importantly, the characterisation exercise requires the factors or features to be considered in combination. That exercise is inevitably necessary because in cases such as this one, the instruments and other written terms of the grant do not say expressly whether exclusive possession is conferred. Whether the right conferred bears the character of a right of exclusive possession is thus to be assessed standing back from the individual considerations in order to gain an overall impression. Drawing upon an observation made about an exercise of characterisation in a different legal arena, we consider the following oft cited observation of Mummery J in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 (most recently cited by Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631 at [18]) to be instructive:

The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can be only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

The process involves painting a picture in each individual case. As Vinelott J. said in Walls v. Sinnett (1986) 60 T.C. 150, 164:

“It is, in my judgment, quite impossible in a field where a very large number of factors have to be weighed to gain any real assistance by looking at the facts of another case and comparing them one by one to see what facts are common, what are different and what particular weight is given by another tribunal to the common facts. The facts as a whole must be looked at, and what may be compelling in one case in the light of all the facts may not be compelling in the context of another case.”

117    In our respectful view, the primary judge well appreciated that a characterisation exercise was required and understood the nature of that exercise. His Honour carefully focused on the features of the instruments in question and evaluated those features to form a holistic, context-specific picture of the overall effect of the detail.

118    In contrast, the State readily resorted to comparisons with individual features of instruments considered in other cases for the purpose of contending that the characterisation given to those instruments should here be adopted. In so doing, the State impermissibly sought to focus on a particular feature or detail divorcing it from its context and overall effect when considered in combination with all of the relevant detail, as was done in the cases upon which the State relied.

119    Further, and in contradiction to the principles summarised by the primary judge and not impugned by the State, the State’s contentions impermissibly ‘cherry-picked’ from passages in the primary judge’s reasons, and thus also from his Honour’s overall characterisation reasoning on each lease. When this was raised in oral argument, senior counsel for the State responded by reference to an analogy with the legs of a chair. He submitted that, despite the multitude of different factors incorporated into the conclusion on each lease by the primary judge, if the State convinced the Court that the primary judge erred with respect to ‘a significant number’ of the factors, the Court could decide to set aside the decision of the primary judge and remit the matter, or decide it in favour of the State. Alternatively, senior counsel also fairly accepted that the Court could decide that the primary judge erred but reach the same conclusions as his Honour.

120    Despite the attractiveness of the analogy made by senior counsel, and his careful oral submissions, we remain of the view that the State’s challenges involve cherry-picking, by fastening on one factor or feature identified by the primary judge, and taking it out of the context of his Honour’s overall reasoning. That is because, by necessity, the structure and content of the grounds of appeal invite the Court to find error in single findings, sometimes in single sentences in long paragraphs of a 745-paragraph judgment. But it is simply not possible, and certainly not correct, to discern error in relation to the way a particular factor is addressed in isolation. Regard must always be had to the place of the factor in the course of reasoning about each grant as a whole.

121    The other conceptual difficulty with the thrust of almost all of the State’s grounds of appeal is that it seeks to reduce focus on the actual terms of the grant of the lease – mostly here statutory terms, but ones which frequently impose restrictions or conditions – and instead seeks to invite a characterisation based on assumed characteristics of common law leases, without regard to those express restrictions or conditions. That is not an approach which is compatible with the authorities.

122    Furthermore, many of the State’s contentions supporting its grounds of appeal misunderstand, or mischaracterise, the approach taken by the primary judge. Many depend on the contention that the primary judge “assumed” a state of affairs, or a fact, or undertook some kind of formulaic assessment without regard to the individual leases. That is not correct. Most of the State’s grounds of appeal fall at this initial hurdle.

123    These flaws in the State’s approach would be enough to justify dismissal of many of its grounds of appeal. Nevertheless, we turn to consider its arguments in more detail.

Characterisation: the importance of the leases as statutory leases of unalienated Crown land

124    All the leases in question are granted pursuant to statutory powers, contained in the various iterations of New South Wales legislation to which we have referred above. In many cases, the terms and conditions form part of the legislative scheme, thus part of the conferral of power to grant the lease. They are creatures of statute “forming part of the special regime governing Crown land” in New South Wales: see Wilson at [109].

125    At [46] of the primary judge’s reasons, in a passage not impugned on appeal, the primary judge described, correctly with respect, the role of the definition of “lease’ in s 242(1) of the Native Title Act and the applicability of this definition to statutory leases:

The second relevant category is whether the leases the subject of the separate questions are leases (other than a mining lease) which confer “a right of exclusive possession over particular land or waters”, as specified in s 23B(2)(c)(viii). For the purposes of the NT Act, the term “lease” is defined in s 242(1) to include a lease enforceable in equity; a contract that contains a statement to the effect that it is a lease; or anything that, before it was created, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease. As the plurality observed in [Wilson] at [58], this definition is wide enough to encompass statutory interests for the purposes of the NT Act which may not necessarily amount to a lease as understood by the common law. Their Honours further observed at [59] that the scheme of Pt 2, Div 2B of the NT Act is premised upon the fact that a “lease” under that Act may or may not confer a right of exclusive possession.

126    The correctness of this finding disposes at a level of general principle with those grounds of the State’s appeal which contend the primary judge incorrectly understood, or failed to take account of, the use of the word “lease” in the grants in issue.

127    Relatedly, it is important not to lose sight of the fundamental characteristics of the leases as grants of rights in respect of land to which the Crown has radical title. Appreciating that requires one to approach with caution techniques of construction adapted from common law leases of freehold land. In making the grants that are in issue here, the Crown was not acting as a freehold landlord temporarily parting, for the use of a tenant, with a right to exclude any and all from the land. Rather, it was granting specific rights, and imposing specific duties and restrictions, in order to promote what it considered to be the advantageous management and improvement of the land. That different context must inform the proper approach to the construction and characterisation of the statutory leases.

The correct approach to s 23B of the Native Title Act

128    As the plurality in Wilson observed at [47], it would be erroneous to apply any “common law” test of extinguishment in the place of the provisions in Division 2B of Part 2 of the Native Title Act. While before the primary judge there was express reliance on extinguishment at common law (and the separate questions were amended to include this), ultimately it appears that any such contentions had a minor role in the way the State put its arguments. On the appeal, there was no focus at all, in terms of the 108 grounds of appeal and the State’s arguments, on extinguishment at common law. The focus of the grounds of appeal was squarely on the findings of the primary judge in relation to the operation of s 23B of the Native Title Act, and in particular sub-paragraphs (2)(c)(i) and (viii). Indeed, the separate questions in relation to all the leases relevant to the appeal were framed by reference to one or both of these two sub-paragraphs.

129    Therefore, the only question on the appeal is whether the primary judge erred in finding each of the leases which remain in issue did not fall within the terms of either sub-paragraph 23B(2)(c)(i) or (viii). The approach to the assessment of the State’s arguments on the appeal must be undertaken bearing in mind what the plurality said in Wilson at [59] and [61]:

The definition in s 242 of “lease” is of importance in the present proceedings because it demonstrates that the NTA postulates the existence of an interest which, although described as a “lease”, is not a lease at common law. Further, the scheme of Div 2B of Pt 2 is premised upon the fact that a “lease” under the NTA may or may not confer a right of exclusive possession. These considerations illustrate the flaw in reasoning that as an interest was described as a “lease” it is to be presumed that a right of exclusive possession was conferred.

….

No doubt it is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed. But the relevant question in the present matter is what are the rights that were created by the grant of the Lease. In particular, did the holder of the Lease acquire a right to exclusive possession of the Leased Land? That question is not to be answered by presuming its answer any more than it is to be answered by noticing that later legislation has attributed certain legal consequences to the fact of the grant of such rights. It is to be answered by analysing the nature and extent of the rights that were conferred by the grant.

130    A similar point was made in Wik at 152-153:

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 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.

“Exclusive possession”

131    Bearing in mind our observations to this point, the State’s contentions on the appeal which go to the primary judge’s findings about the application of s 23B(2)(c)(viii) depend very much upon how the phrase “confers a right to exclusive possession” in that sub-paragraph, and in other similar places in the legislative scheme, is to be understood.

132    In the context of its use in the Native Title Act, the statutory phrase’s meaning will take its colour from, and must remain consistent with, the underlying principles about extinguishment of native title at common law, which were summarised by Gageler J in State of Queensland v Congoo [2015] HCA 17; 256 CLR 239 at [156]-[159]:

It must now be treated as settled that the common law ceases to recognise a native title right at the point in time of the creation of an “inconsistent” right by or pursuant to legislation. The common law test is one of “logical antinomy” of rights. The test involves asking whether the existence of the right created by or pursuant to legislation necessarily implies the non-existence of the native title right. The test is not adequately captured merely by asking whether the two rights could be exercised concurrently. The test is more appropriately captured by asking whether the existence of the right created by or pursuant to legislation is “inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title”.

There is no reason in principle why the common law should adopt any different approach when it comes to consideration of the effect of legislation imposing a prohibition on the continued recognition of native title rights. The only question should be whether a particular prohibition is necessarily inconsistent with the continued existence of a particular native title right. That would not ordinarily be so in the case of a prohibition of the exercise of the native title right which is partial, temporary or conditional.

The statement in Western Australia v The Commonwealth (Native Title Act Case) that, at common law, “native title can be extinguished or impaired by a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title” must be understood in light of the footnoted reference to the reasons for judgment of Brennan J in Mabo v Queensland [No 2]. Having explained (as he later summarised it) that “[t]he rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title”, his Honour said (in the passage referenced in the Native Title Act Case) that “[a] clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title”.

There are many references in the native title case law to the need to discern a “clear and plain intention” to extinguish native title in a valid exercise of sovereign power in order to conclude that native title has been extinguished at common law. They are to be understood as directed to the judicial determination of the scope of legal change wrought by an exercise of sovereign power – relevantly, for present purposes, to the judicial determination of the incidents of a legislatively conferred right or of the ambit of a legislatively imposed prohibition. So understood, they have, as French CJ and Keane J put it in the present case, “normative force”: they inform constructional choice. They are not inherently in tension with the common law test being one of “logical antinomy” of rights. To the contrary, they inform one aspect of its application.

(Citations omitted.)

133    Similarly, the focus must remain steadily on the nature of the right conferred by the lease, not the consequences of the exercise of the rights. In Congoo at [34], French CJ and Keane J said:

Where a right or power is conferred for a statutory purpose and is to be exercised for that purpose, inconsistency is not demonstrated by the fact that the repository of the right or the power may use it to prevent the native title holders from exercising or enjoying their rights.

134    That point was made clear in Ward, where the majority said (at [308]):

The grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. Although the lessee could prevent anyone else seeking to use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area … The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area. That is not to say, however, that the grant of a mining lease is necessarily inconsistent with all native title.

135    As Gageler J said in Congoo at [168], that holding in Ward “illustrates the proposition that a right or power conferred for a statutory purpose, to be exercised for that purpose, is not inconsistent with native title holders continuing to hold rights or interests under their traditional laws and customs which remain recognised by the common law merely because an exercise of that right or power might prevent native title holders from exercising or enjoying those rights or interests”. See also Brown at [8], [36], [46], [55]-[57] and [63].

136    Brown concerned joint venture mineral leases granted by an agreement, with the agreement being approved by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA). The issue was the effect, if any, of the grant of these leases on the native title rights held by the Ngarla People in the area covered by the leases.

137    The ratio of the case is that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if not accompanied by the grant of a right to exclude “any and everyone from the land for any reason or no reason”, is not necessarily inconsistent with, and did not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land: Brown at [55].

138    One of the two alternative ways in which the State of Western Australia put its argument in the High Court was that native title rights and interests were wholly extinguished over the whole of the area of the mineral leases, either because those leases conferred on the holders a right of exclusive possession or because the rights granted by the leases and the State Agreement were inconsistent with all of the native title rights and interests: at [29].

139    In Brown, the High Court applied the inconsistency test from Ward, and was concerned with common law extinguishment: see [31]. The High Court did not refer to the terms of Pt 2 Div 2B of the Native Title Act. The reasons for that are explained in the Full Court (Brown v Western Australia [2021] FCAFC 154; 208 FCR 505 at [23]-[27]), where Mansfield J refers extensively to the findings of the trial judge in Brown (Bennett J), whose reasoning Mansfield J adopted on the appeal and who had found that none of the statutory extinguishment provisions were applicable. Notwithstanding that distinction between the circumstances in Brown and the present circumstances, the phrase “right to exclusive possession” is not a defined term in the Native Title Act. Therefore, in our opinion, what the plurality in Brown says about the concept of exclusive possession remains of considerable importance, and either directly binding on us, or if not directly binding, we should in any event apply it.

140    As to the identification of rights said to have extinguished native title, the plurality said at [34]:

The identification of the relevant rights is an objective inquiry. This means that the legal nature and content of the rights must be ascertained. The nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised. That is why the plurality in Ward said that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and content of the right.

(Citations omitted.)

141    For the purposes of this appeal, the key passage in Brown is the one at [36]:

It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the “intersection of traditional laws and customs with the common law” (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”. Yet it is no less important to recognise that, as Fejo v Northern Territory [at [47]] made clear, a right of exclusive possession affords the holder the right to “use the land as he or she sees fit and [to] exclude any and everyone from access to the land” (emphasis added). The grant of a right to exclude any and everyone from access to the land for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land but also of any right which depends upon access to the land.

(Citations omitted.)

142    While this passage appears in a section of the plurality’s reasons dealing with the correct approach to the claimed native title rights and interests, that does not diminish the significance of the passage, especially given that the characterisation of exclusive possession as a “right to exclude any and everyone for any reason or no reason” appears elsewhere in the Court’s reasoning in Brown: at [45], [46], [52], [53], [55], [57] and [63].

143    Further, the reference to the earlier decision of Fejo at [47] is important. In that passage, in explaining why a grant of a freehold interest extinguishes and does not merely “suspend” native title rights (suspension being one of the arguments made in Fejo), the High Court said:

Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land.

(Emphasis added.)

144    Thus, it is not only the right to exclude anyone and everyone, but also the absence of any limits or restrictions in the grant on how the grantee may use the land, which are indicative of exclusive possession. While restrictions on use may not be determinative (many leases granting exclusive possession having, as the State submitted on the appeal, some restrictions on use), the passage in Fejo, endorsed by the plurality in Brown, indicates that restrictions and limits on use of the land, in the terms of the grant, may be indicative – one way or the other – of whether the appropriate characterisation is a grant of exclusive possession, or not.

145    At [45] in Brown, the plurality referred to an express clause in the mineral leases which, in the plurality’s opinion, precluded the construction of the leases as impliedly providing a right of exclusive possession:

This being the nature of the right granted to the joint venturers, the third point to be made is that neither the instrument itself nor the State Agreement provided expressly that the joint venturers were not only to have possession of the land which was the subject of the mineral lease for the purposes which have been described but also to have the right to exclude any and everyone from that land for any reason or no reason at all. On the contrary, as already noted, the State Agreement provided expressly that the joint venturers must allow not only the State but also third parties to have access over the land the subject of the mineral lease, provided that the access did not “unduly prejudice or interfere with” the joint venturers’ operations. This express provision precludes construing the leases as impliedly providing a right of exclusive possession.

146    The State submitted there is no such term in the scrub leases, and as we understood it, did not concede any of the leases in issue on the appeal had a similar term. As we have noted, the evidence was incomplete as to the contents of the leases, and often all that was available was the terms of the statutory power to grant the lease and the notification of the grant in the government gazette of the time. Instruments of lease were in evidence for only five of the fifteen leases in issue on the appeal – but nevertheless, the negative point made at [45] in Brown is also true of the leases in issue on this appeal. The positive point (an obligation to allow the State and third parties access to the land provided no prejudice to mining operations) could find functional equivalents in the leases in issue on the appeal: see the conditions set out in Ohlsen at [110].

147    Finally, Brown indicates the importance of a careful examination of the purposes for which a lease is granted. At [63], the plurality said:

As the State rightly pointed out, the mineral leases gave the joint venturers the right to mine anywhere on the land and the right to build improvements anywhere on the land. But the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works. Had the mineral leases provided that the whole of the land must be used in a way which would not permit any use of the land by native title holders, it may have been open to construe the mineral leases as providing for the joint venturers to exclude any and everyone from the whole of the land for any reason or no reason. But, as has been explained, that is not what these mineral leases provided.

(Emphasis original.)

148    This passage, as well as [55] and [57] from Brown, together with [33]-[38], were all referred to in the primary judge’s reasons at [55]-[58], including this passage at [56], which was drawn, we conclude, from what is said in Brown, read with Wik and Ward:

The plurality in Brown High Court confirmed at [55] that both Wik and Ward established that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if unaccompanied by the grant of a right to exclude anyone from the land for any reason or no reason, is not necessarily inconsistent with and does not necessarily extinguish native title rights and interests such as rights to camp, hunt and gather, conduct ceremonies on land and care for land.

149    The force of the statement made in Brown at [36] as to the importance of recognising that “a right of exclusive possession affords the holder the right to ‘use the land as he or she sees fit and [to] exclude any and every one from access to the land’” (emphasis in original) is not diminished by the contention of the State that the statement, and many others like it in the authorities, is not intended to be read ‘literally’, that is, categorically and without qualification. Nor is the proposition in Brown diminished by pointing to examples in the cases where a grant of a right of exclusive possession was found despite an express reservation benefitting the grantor or others to enter and remain on the property in question. Reservations of that kind are not necessarily inconsistent with the grant of exclusive possession. As Windeyer J stated in Radaich v Smith (1959) 101 CLR 209 at 222, “[a] reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course, not inconsistent with a grant of exclusive possession”. Further obvious examples include the rights of third parties such as local or statutory authorities to enter and inspect premises for various statutory purposes. Broader reservations including a general reservation permitting the grantor and others to pass through and or use the demised premises in limited circumstances (as, for example, those addressed in Goldsworthy Mining Limited v Federal Commissioner of Taxation (1973) 128 CLR 199 and discussed above at [65]-[67]) may likewise not be inconsistent with the grant of exclusive possession.

150    Whether reservations or conditions of these kinds are or are not inconsistent with the grant of the right of exclusive possession can only be assessed taking into account all of the circumstances of the grant in question, including “the nature of the right granted” (Brown at [45]) and the extent to which any such reservation precludes the grantee to “use the land as he or she sees fit” (Brown at [36]). It is for that reason that a de-contextualised “cherry-picking” exercise of the kind engaged in by the State was unhelpful.

151    Many of the leases in issue on the appeal are granted for specific purposes. The scrub leases are one example. The conditions and requirements set out at [110] and [111] of the primary judge’s reasons are illustrative of the confinement of lessees, in terms of what they could and could not do on the land subject to the scrub leases, both in terms of their own activities, and in terms of allowing others access to the land for other purposes. Those conditions also demonstrated the positive requirements imposed on lessees – what they “must” do with the land, including within specific timeframes.

152    Accordingly, the authorities make it clear that a right of possession conferred under legislation (even where the term “lease” is used), may be purposive, it may be limited, or it may confer rights which equate to an estate in fee simple. No generalisations can be made, as the State’s submissions tended to invite the Court to do.

153    As the primary judge correctly appreciated, each grant of lease needed to be considered on its own terms and in its own context, but in our opinion the primary judge correctly appreciated that the core assessment was whether what was conferred could be characterised as being a right to exclude anyone and everyone for any reason or no reason, including by an assessment of whether a lessee was granted a right to use the land as the lessee saw fit. We reject the State’s submissions that the passages in Brown to which we have referred, picking up as they do the earlier authorities, do not represent the correct approach.

Errors common to more than one lease

The use made by the primary judge of pastoral leases (Grounds 8, 21, 22, 38, 50, 51 and 13, 46, 59, 63, 67, 81, 88, 90)

154    There is no error in the primary judge’s observation at [56] of Ohlsen, which we have extracted above. His Honour was correct to observe that the authorities place emphasis on the grant of rights for particular purposes, and require a careful comparison between a purposive grant and the test for the conferral of a right of exclusive possession as we have explained that concept above. The primary judge made no “assumption” to this effect; indeed, his Honour’s own language in [56] – “not necessarily inconsistent” – indicates his Honour appreciated there was a qualitative characterisation to be made.

155    Some passages where this error is contended to be revealed are [121], [124] and [221]. Paragraphs [121] and [124] concern the primary judge’s reasoning about the scrub leases. Paragraph [221] concerns his Honour’s reasons about the settlement leases.

156    At [121], the primary judge did no more than note the connection, correctly on the evidence, between pastoral leases (and homestead leases) and scrub leases, in terms of scrub leases within the boundaries of an existing pastoral lease or homestead lease only being available to the holders of those other leases. At [124], the primary judge expressly premised his observation by stating that “each case necessarily turns on its own particular facts (with particular reference to the legislation from which the lease is derived as well as the terms of the lease instrument)”. His Honour then went on to extract a passage from the judgment of Toohey J in Wik, but his Honour did so for the purposes of applying what Toohey J had said about the scrub leases. In particular, as the respondents submitted, the primary judge referred to Toohey J’s reasons to make the observation that the grant of the scrub leases “gave to the lessee such possession as was required for the occupation of the land for those purposes.” His Honour was plainly correct to characterise the scrub leases as purposive, given the findings at [110] and [111] about the features of the leases.

157    At [221], the primary judge’s statement that “[a]bsent special considerations, and expressed at a level of generality, leases for grazing are likely to be able to co-exist with native title rights and interests” is entirely consistent with established principle. It goes no further than the repeatedly endorsed notion that one factor in any characterisation will be whether a grant gives only as much possession as is necessary to achieve the purpose of the grant. As we explain below, to a material extent that consistency is also reflected in the way the separate questions were framed with the State’s agreement. In the context of the entire paragraph of his Honour’s reasoning at [221], what the primary judge pointed out, consistently with the evidence before him, was that the settlement leases were also purposive, and targeted particular kinds of land, and were not intended to perform the same function as homestead leases (with which the primary judge had dealt in this context at [325]).

158    There is nothing erroneous in his Honour’s approach.

159    Relevantly to grounds 38, 50 and 51, contrary to the State’s submissions, we do not consider that the primary judge’s reasons at [130], [225], [232], [235], [282] and [327]-[331] disclose any error of this kind either. At [130], there is no more than an observed comparison to pastoral leases, which is compatible with Wik and subsequent authorities. His Honour discloses, in passages such as that at [282], a consciousness that there is no necessary or automatic connection with pastoral leases. The parallels his Honour draws are based on his cumulative impression from a number of features or factors. That is the correct approach. At [225], the primary judge refers to a number of statutory provisions about pastoral leases to sustain the comparison he makes and we see no error in this approach. Paragraphs [232] and [235] also illustrate the correct approach to characterisation, by the primary judge standing back and looking, in a holistic way, at the features or factors he has identified from the evidence and argument. Paragraphs [327]-[331] adopt the same method, and the comparison with pastoral leases is not only appropriate, but to be expected when dealing with historic leases of the kind in issue in this proceeding. To conduct the comparative exercise was not only not erroneous, it was necessary. The primary judge engaged in that exercise on a lease-by-lease basis, considering the evidence relevant to each lease. That was correct.

160    As to the State’s submissions (at [6] of its written submissions) that the primary judge made another assumption, about leases for pastoral and grazing purposes not being intensive (said by the State to go to grounds 13, 46, 59, 63, 67, 81, 88, 90 in the notice of appeal), in our opinion the primary judge made no such assumption. At some points in his reasons (e.g., at [129] and [281]), his Honour rejected the emphasis placed by the State on “intensity” of use. We see no error in those parts of his Honour’s reasons, for the reasons the primary judge expresses at [129] and [281]. Otherwise, “intensity” was a concept introduced by the State, and rightly not elevated to any great importance by the primary judge.

161    Further, we accept the point made by the respondents that the consequences of Wik in relation to pastoral leases was a premise of the framing of the separate questions, and to that extent the primary judge was entitled to understand that the parties both approached the resolution of the separate questions on the basis that the grant of pastoral leases over the land covered by the leases in issue had not extinguished native title. In other words, the premise was that pastoral leases, as a class, and as a consequence of the outcome in Wik, did not have this effect. These submissions are developed in writing by the respondents at [5]-[13]. It suffices to set out part of [5], and [12] and [13] of those submissions.

The parcels of land the subject of the separate questions were previously the subject of pastoral leases but those pastoral leases were not included in the separate questions as dealings which had potentially extinguished native title. For example:

a.    The land the subject of the separate questions relating to Western Lands Lease 3469 (WLL3469) had been part of a pastoral lease within “Papekura No. 4 Run”, within the pastoral holding known as Willandra.

b.    The lease within the Papekura No. 4 Run was then converted into a pastoral lease under the Crown Lands Occupation Act 1861 (CLOA 1861).

c.    The pastoral lease under the CLOA 1861 was then divided into “resumed” and “leasehold” areas under the Crown Lands Act 1884 (NSW) (CLA 1884) and a grant of pastoral lease 245 (also known as PL245) was made over the leasehold area.

d    Pastoral lease 245 was then converted into WLL1386, which in turn was converted into WLL3301 and WLL3302, before WLL 3302 was surrendered and subdivided into two WLLs, one of which was WLL3469.

….

Further, as set out above, the parties and the Court knew from the evidence that pastoral leases had been granted over the disputed areas the subject of the Homestead Leases. The areas that were subject to the grant of a Homestead Lease were carved out of an earlier pastoral lease. Yet it is in respect of Homestead Leases that the argument is advanced in Ground 51 that the primary judge erred in assuming that the grant of the earlier pastoral lease had not extinguished native title. There would be no utility in putting forward as a separate question whether the grant of a Homestead Lease extinguished native title if the State did not accept that the earlier grant of the pastoral lease out of which the Homestead Lease was carved, had not extinguished native title.

Fifthly, and finally, with respect to this issue, it is notable that the State does not appeal from Orders E. Orders E related to his Honour’s answer of “no” to the questions in Schedule 5 regarding 18th Section Leases, as to (1) whether the leases conferred exclusive possession, and (2) whether any subsequent acts had resulted in the lessee holding a right of exclusive possession. As noted above, all the disputed land the subject of the 18th Section Leases was previously the subject of a grant of a pastoral lease. In not appealing Orders E, the State must be taken to accept that native title has not been extinguished in the disputed areas the subject of those leases, including by the prior grant of a pastoral lease. It must therefore be taken to accept that those pastoral leases granted under statute in NSW could co-exist with native title, did not confer exclusive possession, and did not wholly extinguish native title.

(Emphasis original; citations omitted.)

162    We accept those submissions. They are supported by detailed references to the evidence, some of which the State initially sought to challenge on the appeal. That challenge was later withdrawn and the State conceded the respondents’ references were accurate. While we do not consider it is accurate to describe the primary judge’s reasoning as making an “assumption” about the effect of the grant of a lease properly described as a pastoral lease, we do consider it is accurate, and appropriate, to conclude that the primary judge was guided by the joint approach taken by the parties, and in particular the State, to the identification of the leases said by the State to have an extinguishing effect, and that his Honour was conscious that pastoral leases over some of the land in issue had been deliberately excluded from the separate questions. His Honour was entitled to, and we infer he did, consider that this approach was consistent with established authority, and was entitled to, and we infer did, factor this into his consideration of the appropriate characterisation of each lease at an individual level.

163    The State sought to persuade the Court that the respondents’ submissions should not be accepted. At [14] of its written submissions in reply, the State submitted:

Secondly, although the State has never contended that pastoral run leases granted under the CLOA 1861 wholly extinguished native title rights and interests, the State did not accept that Pastoral Leases granted under the CLA 1884 were capable of co-existing with native title rights and interests: cf. RS, [5] and RS [6] (second sentence). Nor did it proceed upon any such assumption. The State’s submissions in reply (dated 3 July 2020) made it clear that it did not accept that “pastoral leases” necessarily co-existed with native title rights and interests (see esp. [3] and [20]-[22]). If the Respondent proceeded on an assumption that was inconsistent with the State’s articulated position, that is not the fault of the State. Contrary to RS [8], the State is not raising a “new issue for the first time on appeal”.

164    The response given by senior counsel for the respondents in oral argument was the following:

That was the dispute which was to be quelled by the court answering these separate questions. Has native title been extinguished either under the Native Title Act or at common law on these particular parcels of land? And on these particular parcels of land there had been earlier pastoral leases that had been granted. Now, if the Court were to answer this question by saying, “Well, no. This improvement lease doesn’t extinguish native title,” that would not have quelled the dispute on the approach the State is now taking. The State would say, “Well, we’ve still got to have an extinguishment hearing because there had been an earlier pastoral lease.” This is a Bass v Permanent Trustee situation. The separate questions would lack all utility. They would not quell the dispute.

165    That submission should be accepted. It is apparent from the transcript of the first day of the hearing before the primary judge that his Honour was acutely concerned to ensure that the separate question process would be effective to quell the dispute between the parties about whether native title had been wholly extinguished on the parcels of land identified in the separate question. See, for example, the following passages from his Honour during the first day of the trial (related to other apparent uncertainties about the separate questions):

…. I need to be confident that the terms of reference – the ambit of the separate questions is a matter upon which there is agreement between the parties. These separate questions were ordered by consent. I accept that the Court has its own responsibility to exercise in ordering separate question[s], but I want to make sure that this case is not going to – after two weeks and all the huge amount of effort that has gone into it and the amount of money that has been spent on it, that it’s all going to come to no point because someone is going to take a special leave application and say the separate questions have not been honoured in this case, they have been fudged.

….

Look, it may – look, over the weekend I was reading Kirby J’s judgment in – I can’t remember which one it was now; it might have been given in Wilson v Anderson. I think he was one of the dissenting judges. And he was lamenting there the amount of resources and time and the heavy litigious nature of native title legislation – litigation, I beg your pardon, and how much it’s just sucking up all of the benefits that were meant to accrue to Indigenous people. I’m just now very, very anxious that here we are on the first day of a two week trial and there are alarm bells ringing already about the adequacy of the terms of the separate question.

…

I need to have – what I’m suggesting to you gentlemen is I need to have complete and utter confidence that we can [have] consensus here on the ambit of these separate questions, and if there is any controversy or any dissention I will pull the plug on the lot.

166    It was the capacity of the Court to recognise native title in the land (and any waters) which was in issue on the separate questions; and it was the dispute between the parties which the separate questions sought to quell. If the State was contending other acts by the State in relation to the same land (and any waters) precluded any recognition of native title, its responsibility was to bring that contention forward at the trial of the separate questions. It did not do so. It did not make the primary judge aware, nor did it make the respondents aware, that it contended the application of the principles in Wik, or the extinguishment provisions of the Native Title Act, to the grant of earlier pastoral leases might or did mean those grants had also extinguished native title. Since the State referred to its reply submissions before the primary judge, the Court has looked at those paragraphs referred to, even though they were not in the appeal book. While those passages certainly emphasise, as the State did on this appeal, that it is possible for some pastoral leases to be characterised as granting exclusive possession (and the Native Title Act expressly recognises this), what those submissions do not do is put in issue on the separate question that the particular pastoral leases granted previously over the particular land in question had this effect. Rather, the State encouraged both the respondents and the primary judge to act on the basis that the only acts of extinguishment which could preclude recognition of native title over the land (and any waters) subject to the nine categories of leases were the acts it identified in the separate questions.

167    In the face of this aspect of its conduct of its case before the primary judge being raised, senior counsel for the State informed the Court on the appeal that he had instructions to offer an undertaking to the Court:

My client has instructed me that my client is, if necessary, willing to give an undertaking that if the answers, for instance, the settlement leases and these other leases on which – which were on land that had been covered by earlier pastoral leases, should when the judicial process is over – and I mean that by reference to possibility of appeals and so on. If it’s finally determined against my client that these things do not extinguish native title, my client has indicated that I’m instructed that an undertaking can be given if it’s required that we will not seek to reopen those findings based on earlier pastoral leases on those lands. So that should do away with the Bass v Permanent Trustee difficulty that my learned friend has referred to.

168    The proffering of an undertaking of this kind was not necessary. The State had not put in issue before the primary judge the capacity of any earlier pastoral lease over any of the lands and waters in issue to extinguish native title, and preclude its recognition in the respondents’ s 61 claim, if they were otherwise successful. In the circumstances of these separate questions, for the reasons articulated by the primary judge in transcript, the State was bound by its conduct at trial: see Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1. It is clear from the reasons of the primary judge as a whole that both his Honour and the respondents proceeded on the basis the State did not allege there had been any earlier extinguishing acts in relation to the land and waters in question.

169    The relevance of the existence of pastoral leases over the land (and any waters) which was the subject of many of the leases in issue was twofold. First, at a general level, it confirmed (if confirmation were needed) the appropriateness and relevance of the primary judge engaging, on a lease-by-lease basis, in some comparisons between the leases in issue and the grant of pastoral leases – that having been an earlier form of tenure granted over the land in question. Second, we find the primary judge was entitled to proceed on the basis that the State was not seeking to persuade the Court that earlier pastoral leases over the land (and any waters in question) had extinguished native title.

170    All of the grounds which relied on assertions of error in the way the primary judge used, or relied upon, the effects of the grant of pastoral or grazing leases should be rejected. Those grounds are: 8, 21, 22, 38, 50, 51 and 59a (see the State’s written submissions at [4]-[5], [18], [24], [34]-[41]). Also rejected are the grounds which more indirectly pick up the way the primary judge considered parallels between the leases in issue and pastoral leases: grounds 13, 46, 59, 63, 67, 81, 88 and 90 (see the State’s written submissions at [6], [9], [21], [43]).

Reliance on the size of the land covered by the leases (Grounds 11, 24, 37, 83)

171    Although the State accepted that, in Wik, the size of the land subject to the leases was a factor considered by the Court in characterising the nature of the rights granted under the leases, the State contended on this appeal that size was legally irrelevant.

172    We reject that proposition. The size of the land subject to the grant of a proprietary interest is a basic component of the grant which is capable of assisting in the proper characterisation of the nature of the rights conferred. That is the way in which three judges in Wik (Toohey, Gaudron and Kirby JJ) used the size of the land subject to the pastoral leases. In his reasons, Toohey J did so (at 130) by reference to the reasons of Lee J in North Ganalanja Aboriginal Corporation v State of Queensland [1995] FCA 869; 61 FCR 1 at 23:

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 extinguish 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 pastoral tenant’s enjoyment of possession as the use of native title rights by indigenous inhabitants.

173    While this analysis was in the context of assessing inconsistency of rights, as we have explained, that concept is necessarily inherent in the concept of exclusive possession as it should be understood to be used in the Native Title Act. The rights to exclude for any reason or no reason, and to use the land as they saw fit, lie behind the analysis of Lee J, endorsed by Toohey J. As the respondents submitted, Gaudron and Kirby JJ made similar observations.

174    In Wilson, it is true that Callinan J (in dissent) was of the view that there is “no principled basis on which to hold that large and remote pastoral leases do not confer exclusive possession but smaller ones supposedly nearer to more closely settled places do” (Wilson at [196]). His Honour acknowledged that some Justices in Wik thought the factor was significant. The State submitted the approach of Callinan J demonstrated the error in the primary judge’s findings, but we do not agree. Wik suggests there is nothing legally impermissible in incorporating consideration of the size of the land subject to a grant of a lease in the characterisation task. Further, the kind of presumption inherent in the way Callinan J expressed his view is not the approach taken by the primary judge, nor the approach we consider permissible. The reasoning reflected in the passage from Lee J’s reasons in North Ganalanja is far more nuanced than that.

175    The respondents were also correct to submit that, before the primary judge, the State itself relied on the size of the land subject to some of the leases. In written submissions before the primary judge, the State contended:

The size of the Lease Area (see also Crown Lands Act 1884 s 82(I) and Crown Lands Act 1889 s 34), the nature of the use to be made of the leased land, the requirement to pay for existing Crown improvements (see Annexure 1 to the Homestead Leases Questions), the requirement for residence and the importance attaching to that requirement (see Annexure 1 to the Homestead Leases Questions, Crown Lands Act 1884 s 82(IX), Crown Lands Act 1889 s 34, Crown Lands Regulations 1889 reg 126 and Crown Lands Regulations 1895 reg 176), the ability to use the lease as security or have it mortgaged (see Crown Lands Act 1889 s 34) and the requirement to erect boundary fencing (see Annexure 1 to the Homestead Leases Questions, Crown Lands Act 1884 s 82(III), Crown Lands Act 1889 s 34, Crown Lands Regulations 1889 reg 121 and Crown Lands Regulations 1895 regs 173-175) are, alone or in the context of other matters, indicia of the instrument being a true lease which granted exclusive possession.

176    This submission on behalf of the State was correct, in terms of approach – the matters listed were all capable of being “indicia” of the nature of the rights granted. That is how the primary judge used the factor of size. For example, in [121] of his Honour’s reasons (summarised at [156] above), the primary judge is doing no more than using the size of the land under the scrub leases as one factor in the characterisation exercise. The reference to size is also plainly to be read with the first sentence of this paragraph, and his Honour’s findings about the purpose of the scrub leases as facilitating land ultimately being suitable for grazing. There is no error in this approach and we consider it correct.

177    It should also be noted that, where the primary judge relied on size (as the State contended he could at trial) to the State’s advantage, it is not suggested there was an error in his Honour’s approach. See, for example, [570], where the primary judge found, relevantly:

First, and primarily, it is significant that SLT No. 1955/7 Warren was granted for the purpose of “Access” and the lease area was a relatively small area of only five acres, which was close to the lessee’s farm (which was held under conditional purchase, a higher land tenure akin to freehold).

See also [576].

178    At [583]-[584], the primary judge found, in relation to one of the special leases for a term (Special Lease No. 1939/1 Warren) that:

First, although the lease was granted for the purposes of “Access and storage”, different considerations arise as to the significance of those purposes compared with the case of SLT No. 1955/7 Warren. The grant there was for access alone, and was not also for the purpose of storage. It is evident from the Department’s lease card concerning SLT No. 1939/1 Warren that the storage was of fodder. It may be inferred that the fodder was lucerne or similar crop which was grown on the “heavy black soil” on Portion 79 as marked on the Crown plan. Presumably the fodder was stored on part of the lease area as bales or stacks, which would not have taken up much of the 36 acres.

In these circumstances, the need for the lessee to control access to the lease area would have been far less acute than was the case with, for example, SLT No. 1955/7 Warren, where the lease area was only five acres and the purpose of the lease there was limited to “Access” alone.

179    The State submitted these passages demonstrated the primary judge erroneously examined the way the leased land would be used, and impermissibly took account of the size of the land. We disagree. The reasoning here relates to the purpose of the leases in question – having been granted for the purpose of storage, his Honour finds it was likely storage of lucerne or a similar crop. In these passages, his Honour is doing no more than applying the approach we have described above, of determining – where a grant of lease is purposive – what kind of possession is conferred to fulfil the purposes of the grant. The same can be said of other findings criticised by the State, such as the one at [129] of the primary judge’s reasons. In that paragraph, his Honour was dealing with an argument by the State about the “intensity” with which a lessee is entitled to use the land. His Honour rejected the contention that “intensity” (however described) was determinative:

As Brown High Court well illustrates, even the rights and interests conferred by mineral leases on the joint venturers there were held not to be inconsistent with native title rights notwithstanding that the mining operations were intensive. The position may be different where the lease area is relatively small and the activities on it are intensive.

180    The last sentence, read in context, is no more than an observation. Even as such, it does not reveal error: subject, of course, to consideration of all relevant circumstances, conferral of a right to conduct “intensive” activities on a small parcel of land might well indicate the correct characterisation of the right conferred as a right of exclusive possession, because the nature of the activities contemplated by the grant, together with features such as the size of the land granted, in combination make it clear that what was contemplated was that the lessee (or other interest holder) would be able to exclude anyone and everyone, and it was not contemplated by the grant that the lessee’s interests would continue to co-exist with other interests in that land.

Discounting of the lessee’s rights to bring actions in trespass (Grounds 15, 30, 41, 44, 54, 66, 79, 86, 92, 100, 106)

181    These alleged errors should be rejected.

182    The applicable provisions of the New South Wales legislation were as follows.

183    Section 130 of the CLA 1884 provided that:

No person occupying land under a conditional purchase or conditional or homestead lease shall be entitled to bring any action for trespass (other than a wilful trespass) on such land until he shall have fenced such land pursuant to the provisions of this Act.

184    Section 130 of the CLA 1884 was repealed and replaced by s 55 of the CLA 1895:

Trespass and Impounding.

Section one hundred and thirty of the “Crown Lands Act of 1884” is hereby repealed.

No person occupying land under a conditional purchase, homestead selection, conditional lease, homestead lease, settlement lease, or annual lease, or in virtue of an application for a conditional purchase, or for a conditional lease, or a homestead lease shall—

(a)    bring an action for trespass committed by stock upon the said land, whether before or after the commencement of this Act; or

(b)    impound any stock trespassing upon the said land—

unless the said land or the portion thereof trespassed upon was, at the date of the trespass, enclosed with a fence reasonably sufficient to keep out stock:

Provided always that nothing in this section contained shall—

(a)    apply to any trespass wilfully caused, or

(b)    affect any action which is pending at the commencement of this Act, or

(c)    refer to any conditional purchase or homestead selection, for which a grant has been issued at the date of such trespass.

185    Section 250(1) of the CLCA 1913 provided that:

Impounding and actions for trespass.

No person occupying—

any holding within a classified area—or

a conditional purchase, conditional lease, or additional conditional purchase lease not with in a classified area—or

a homestead lease, special lease, or annual lease—

and no person occupying land in virtue of an application for a conditional purchase or homestead selection or for any lease of a kind hereinbefore referred to or specified, the application for which lease entitles him to go into occupation of the land, shall—

(a)    impound any stock trespassing on the holding or land—or

(b)    bring an action for trespass committed by stock on the holding or land—

unless the holding or land, or the portion thereof trespassed upon, was at the date of the trespass enclosed with a fence reasonably sufficient to keep out stock: Provided however that the foregoing enactment shall not be taken to—

(c)    apply to any trespass wilfully caused—or

(d)    refer to any conditional purchase or homestead selection for which a grant has been issued at the date of such trespass:

Provided moreover in reference to an application for any holding of a kind hereinbefore referred to or specified (except a homestead selection settlement lease special lease or annual lease), that, notwithstanding anything to the contrary hereinbefore contained, the person making the application shall not acquire any right of impounding any stock of the holder of any annual lease or occupation license under which the land applied for was held, until the expiration of three months after the date of such application; and for the purposes of this proviso any allotted lands which are not described in the application, as originally made, for a conditional purchase or conditional lease shall be deemed to have been applied for on the date of the confirmation of the application.

186    There are two answers to the State’s submission. The first is that the submission invites the Court to pass over the terms of the statutory grant of the lease itself, and go instead to what is said to be an implication which lies behind the conditions imposed by the legislature. That inverts the correct approach. The correct approach is that this condition gives a limited and qualified right to a leaseholder to bring proceedings for trespass. The lease does not recognise a right to exclude any one and everyone by bringing proceedings in trespass. Attention must then be paid to the terms of the particular grant.

187    The second answer is that any implication such as that contended for by the State does not inevitably mean, as the State asserted, that the right conferred by the lease is a right of exclusive possession. That is because it is well established that a person with a right of actual possession, as well as a person with a right of exclusive possession, can bring a claim in trespass.

188    So much was recognised by Gordon J in Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [383] where, citing inter alia Wheeler v Baldwin [1934] HCA 58; 52 CLR 609 at 632 and Newington v Windeyer (1985) 3 NSWLR 555 at 563, her Honour wrote:

In an action for trespass to land, there must be direct interference, either intentional or negligent, with possession of the land without the plaintiff’s consent or without other lawful authority. The gist of the action is interference with possession. The right of possession of a freeholder (or a lessee) is sufficient, but is not necessary, to found an action in trespass. Actual possession of land (as distinct from mere occupation in the sense of physical presence or use and enjoyment) constitutes prima facie evidence of seisin in fee and is therefore sufficient to found a right of action in trespass against any person who is unable to show a better title: for instance, a defendant having no right of possession of their own.

(Citations omitted.)

189    Once it is accepted that a grant under statute may afford the holder possessory rights short of exclusive possession (for instance, see Congoo at [11]-[12]), it does not follow that a statutory grant of an interest which includes a right to bring an action in trespass must necessarily entail a right of exclusive possession. Upon that acceptance the reasoning in Cleaver or Fergusson, relied upon by the State, is of no assistance

Conclusion on the trespass arguments

190    The premise of the State’s arguments about an implication from the express conferral of a limited right to bring trespass claims in s 55 of the CLA 1895, s 130 of the CLA 1884 and s 250 of the CLCA 1913 is flawed. The implication, if contrary to our first line of reasoning it exists, does not lead inexorably to the conclusion that the leaseholder must have had a right of exclusive possession. To the contrary, the law of trespass would lie to protect actual possession as well as a right to exclusive possession.

191    There was no error in the primary judge’s conclusions (see, e.g., [333] of Ohlsen) that the statutory conferral in s 130 of the CLA 1884, s 55 of the CLA 1895 and s 250 of the CLCA 1913 of an entitlement to bring an action for trespass relating to stock in limited circumstances did not indicate that what was being conferred by the lease in question was a right of exclusive possession.

Failure to address State’s arguments about the inclusion of express limitations on the rights of the lessees, the permission of persons to enter the lease area and provisions authorising the resumption of the lease area (Grounds 7, 16, 28, 36, 62, 68, 72, 94, 98)

192    As we have explained, and as the respondents submitted, this contention invites an erroneous approach by focusing on some asserted inference to be drawn from the terms of the restrictions and limitations expressly imposed, rather than focussing on the restrictions and limitations themselves.

193    In any event, the primary judge did not “fail to properly consider” the State’s contentions, as the ground of appeal contends. Rather, his Honour did not agree with them. Several passages in the primary judgment show that his Honour appreciated that the question was to be approached with a focus on the terms of the grant and with consideration, as part of the overall characterisation exercise, of limitations, reservations and rights of resumption as potential indications that the grantee could not use the land as he or she sees fit or exclude any and everyone from access to the land: see e.g. [50(5)], [55], [66], [124]. In accepting that approach, and in supporting it throughout the judgment by reference to authority and to the detail of the terms of the grants, his Honour gave proper consideration to the significance of the limitations and reservations. It was not incumbent on him in a judgment of such length to recite the State's contention at every point.

194    The primary judge did summarise the contention at [362]:

Fifthly, the State submitted that any legislative provision or lease condition which authorised entry by certain persons onto to 18th Section Lease lands for specified purposes indicated that, absent such statutory rights of entry, the lessee could exclude such persons from entering the leased lands.

195    At [372], the primary judge said:

Seventhly, the State’s submission at [362] above is, in effect, a claim based on the expressio unius maxim of statutory construction, which is notoriously unreliable. No inference should be drawn that, absent the conferral of express powers of entry to certain persons, the lessee could have excluded such persons from the lease area, let alone extend that submission so that it meant that the lessee could exclude persons exercising native title rights and interests.

196    There is no appeal from the primary judge’s findings on the 18th section leases. The fact that this submission is recorded in that section of his Honour’s reasons does not detract from our conclusion that his Honour gave proper consideration to this contention on behalf of the State.

197    The State’s contentions, said to be relevant to several categories of lease, should be rejected.

Reliance on factors which should have supported extinguishment, rather than no extinguishment (Grounds 13, 25, 35, 45, 49, 53, 59, 64, 81, 88, 89, 90, 101, 102, 107, 108)

198    As we have noted, this appeared to be another way of putting the same contentions we have already described – the State submitted that the primary judge considered certain factors, such as the requirement to take up residence or a requirement to fence, as supporting the absence of exclusive possession, when they actually suggested that exclusive possession had been conferred.

199    We do not agree his Honour’s approach was affected by error in this way. To take the fencing example, while there are numerous references in the primary judge’s reasons to the requirements to fence (generally in the summaries of agreed facts, the conditions of the leases and the State’s arguments), there are few references in the primary judge’s reasoning to the fencing requirement as indicating, one way or the other, that what was conferred was a right of exclusive possession.

200    In oral argument, members of the Court observed to senior counsel for the respondents that a condition or requirement on a lease that a lessee must fence the land might be seen as suggesting conferral of a right of exclusive possession, if the purpose of the fence is seen as to keep anyone and everyone off the land. Senior counsel responded that the purpose of requiring fencing may well be to keep stock in, or to keep the stock of other landholders out. So much is apparent from the way some of the conditions are expressed: see, e.g., references to a “stock-proof fence” in Ohlsen at [186(d)] and [229].

201    As we understood it, the proposition is that, like other conditions or requirements, the obligation to fence, if imposed, needs to be considered in the context of the nature and purposes of the lease, and the other conditions. We agree. In our opinion, that is what the primary judge did. An example is his Honour’s conclusion at [609], in favour of the State, in relation to the finding that Special Lease No. 1958/2 Coonamble conferred a right to exclusive possession:

First, this is another case where it can reasonably be inferred from the lease purpose and the relatively small area of leased land (approximately two acres), that the lessee would wish to control access to the leased land (see Ward). This is further underlined by the fact that condition 6 required the lessee, within one year of lease grant, to enclose the land with a substantial fence and to maintain the fence in efficient repair during the currency of the lease. I do not suggest that such a requirement will be determinative in every case, but it takes on a particular significance in the circumstances of this lease.

202    And see also [617] and [621], in relation to Special Lease No. 1924/16 Walgett (also found to confer exclusive possession):

First, it is plain that the paddock was used to accommodate the horses of guests who stayed at the Grand Hotel in Carinda. The lease area was approximately six acres and it is reasonable to assume that the lessee had a real interest in controlling access to the paddock (see Ward). The use of an area as an accommodation paddock to keep guests’ horses, in a rural village, required appropriate controls on public access to the relatively small area. This is further highlighted by the fact that under condition 5 of the lease, the lessee was obliged within one year of notification of the grant to enclose the lease area with a substantial fence and maintain such fence in efficient repair during the currency of the lease. That is not to say, however, that such a condition is determinative in every case.

…

…[T]his is another case where it can reasonably be inferred from the lease purpose and the relatively small area of leased area (approximately six acres), that the lessee would need to control access to the lease land (see Ward). This is further underlined by the fact that condition 6 required the lessee, within one year of lease grant, to enclose the land with a substantial fence and to maintain the fence in efficient repair during the currency of the lease (again, this is not determinative in every case).

203    In our opinion, the content of the primary judge’s reasoning demonstrates his Honour was conscious of the way the State sought to use the fencing requirements imposed by many of the leases. His Honour referred to the variously expressed terms in the leases – sometimes referring to stock, sometimes referring to the height of the fence, once referring to a kangaroo-proof fence – see [470].

204    However, the fact that in relation to some leases, the fencing requirement was not expressly mentioned in his Honour’s “Resolution” section simply indicates his Honour did not consider the fencing requirement to be of much significance in the characterisation exercise for that lease. As the passages we have extracted above indicate, there were leases for which his Honour accepted the State’s submissions that the requirement to fence was a strong indication of exclusive possession – but that was in combination with other factors to which his Honour referred.

205    Given the treatment of pastoral leases (which may also have fencing requirements, such as those referred to in Wik), first by the parties in their formulation of the separate questions, and then in argument, together with the varieties of fences which the leases required to be erected, it is clear that the primary judge did not consider the fencing requirements tended one way or the other in the characterisation exercise for some of the leases. That view was open to his Honour and no error attaches to it.

206    This alleged overarching error is another example of the importance of approaching all relevant factors in context. The requirements to enter into residence, for example, when taken in context indicate precariousness (in the sense used by the primary judge). That is because the lessees could not do whatever they liked on the land. They were required to live on it. And the requirements were often hedged with conditions and limitations. We will return to this requirement in connection with the homestead leases below.

207    Other factors the State relied on as supporting extinguishment are, at most neutral, and certainly give no support to its case when considered in context. These included the ability to assign with the Minister’s consent (which could also be described as an inability to assign without consent) and liability to forfeiture for breach of conditions. We do not accept the State’s submission that these indicate exclusive possession because similar terms are found in common law leases, which do confer exclusive possession. Their appearance as restrictions or liabilities in the different context of the statutory grants here provides no support for an analogy between those grants and leases of freehold property granted under the common law.

Discounting or failing to take into account the language used in the governing statute (Grounds 14, 40, 65, 80, 87)

208    The primary judge well understood the relevance of the use of the word “lease” in the applicable statutory grants of power. His Honour expressly adverted to the emphasis placed by the State on the use of the word ‘lease’ at [72]:

The State’s primary submissions on central issues of general legal principle may be summarised as follows. First, in the case of each of the relevant statutory leases, it submitted that the relevant statutory scheme governing the grant of each lease used language which was commensurate with the grant of a true common law lease. While acknowledging that the distinct nomenclature differentiating licences and leases was not determinative, the State submitted that the adoption of such language at least provided an indication that when the relevant statute referred to the grant of a “lease”, the intention was that the grantee would hold a true lease in the traditional common law sense.

209    The primary judge’s conclusions at [285] (expressed in relation to the improvement leases) that “the use of particular terminology in the lease instruments, which is shared with common law leases, falls far short of being a determinative consideration” is correct. It is consistent with all of the relevant High Court authorities, none of which place any special emphasis on the use in a statutory grant of power (or an instrument issued pursuant to such a power) of the word “lease”.

210    In Wilson at [21], Gleeson CJ said:

Wik does not deny the relevance of the use by the statute of the term “lease”. But it requires a court to look further.

211    The terms of s 23B(2)(c)(viii) itself make good the proposition that more is required. While “lease” is a defined term in the Native Title Act, it is only a lease which confers a particular kind of right which falls within s 23B(2)(c)(viii). The primary judge correctly recognised this, as we have said above (see [125]-[126]).

212    There was no error in the approach of the primary judge to the fact that the word used in the instruments of grant was “lease”. This conclusion is consistent with the approach advanced to the primary judge on behalf of the State (at T9.18-22):

In essence, our case is, as the [High] Court found in Wik, that the entitlement or the nomenclature used to describe the lease really doesn’t shed a great deal of light on what it confers or doesn’t confer. It really is a matter of examining the content of the statute, the content of the lease, and the legislative context at the time. So we will be examining quite a number of parts of those two Acts in particular.

213    That submission is consistent with passages from Wik and Wilson we have set out above (at [128]-[129]). It is correct, and reflects the approach taken by the primary judge.

Alleged errors concerning specific categories of lease

214    In this section, we deal with more specific grounds directed at one category of lease, or at particular leases. We do not repeat our conclusion and reasoning on grounds of appeal which overlap with grounds we have already discussed.

Scrub leases (Grounds 1-16)

215    We have dealt with some of the State’s arguments, such as those regarding fencing and the relevance of the size of the leased land, above.

216    As to the State’s emphasis on the ability of a scrub lessee to apply for a homestead selection, the primary judge set out the State’s contention at [114] of Ohlsen. His Honour rejected this factor as an important indicator of exclusive possession at [131]:

Fifthly, I do not accept the State’s submission that the entitlement of a Scrub Lessee to apply for a Homestead Selection under the CL Act 1895 and CLC Act 1913 is an important indicia of exclusive possession or a right which is inconsistent with native title rights and interests. A pastoral lessee also had such an entitlement. Moreover, the right of a Scrub Lessee to apply for a Homestead Selection was far from unqualified. Under s 27 of the CL Act 1895 and s 193 of the CLC Act 1913, it applied only in the following limited circumstances:

(a)    the Scrub Lease must not have been within a pastoral or homestead lease;

(b)    the application for conversion could only be made in the last year of the term of Scrub Lease, noting that both relevant Scrub Leases had terms of 21 years;

(c)    the Scrub Lessee must have a dwelling house on the land;

(d)    the application could only be for the area around the dwelling house;

(e)    the area applied for could not exceed 640 acres; and

(f)    the holder must have improved the area applied for with permanent, fixed and substantial improvements to the value of one pound per acre and own the improvements.

217    There is no error in the approach taken by the primary judge; the qualified nature of the entitlement to apply and the limits on the size of the area over which application could be made, as well as the fact it was nothing more than a future entitlement, said little about the nature of the present grant.

218    The primary judge’s description (at [121]) of the scrub leases as being for the purposes of “facilitat[ing] the elimination of scrub, with a view to the land being used more profitably, most likely for grazing purposes” was correct. As his Honour found, holders of pastoral leases or homestead leases could only apply for a scrub lease over land within the boundaries of their existing pastoral or homestead lease; this condition recognised the object of the scrub lease as being to make land more amenable to grazing and other pastoral purposes. That object was facilitated by charging the scrub lessee little or no rent so long as the scrub lessee improved the land in the way required. This is reflected, correctly, in his Honour’s finding at [92]:

It was made clear in the second reading speech to the Bill leading to the enactment of the CL Act 1884 that the purpose of Scrub Leases was to clear land which was harbouring “all kinds of vermin”. Scrub Lands were leased at a lower rent than Pastoral Leases and Scrub Leases imposed greater obligations on the lessee to improve the land.

219    There was no error in the primary judge’s approach to the deeming clauses in the scrub leases. By these clauses, the leases were deemed to be leases for “pastoral purposes”, within the meaning of the Mining Act 1874 (NSW). Some of the other leases in issue in the appeal, such as the improvement leases, also had such deeming clauses: see Ohlsen at [280]. At [280(a)], the primary judge makes findings about the effect of such clauses:

Under s 2 of the Mining Act 1874, “Crown Lands” was defined as all lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted in fee or lawfully contracted to be granted or which are not under lease for purposes other than pastoral purposes. Thus the deeming of an Improvement Lease to be a lease for pastoral purposes had the effect of attracting the operation of relevant provisions of the mining legislation. Crown Lands were vulnerable to the exercise of miner’s rights in gold fields, which entitled a miner to enter and take possession of land for the purposes of mining gold (Mining Act 1874, s 15(6)). Crown Lands were also subject to a miner’s rights to enter, occupy and reside on the land for the mining of gold purposes (s 15(1)); to construct water-races, dams, and reservoirs and to take or divert water (s 15(2)); to erect buildings and structures and remove stone or gravel (s 15(4)) and to make tramways and roads for carrying out mining operations (s 15(5)). These are significant third-party rights which are scarcely consistent with the suggestion that an Improvement Leaseholder had a right of exclusive possession or had rights which were otherwise inconsistent with native title rights and interests.

220    It is true, as the State submitted, that deeming clauses are a device by which what is sometimes described as a ‘fiction’ is created. However, the State’s submissions failed to recognise that once engaged, the fiction becomes the reality for the law’s purposes. By clauses such as those described by the primary judge, scrub leases and improvement leases were, so far as the law was concerned, equivalent to leases for pastoral purposes, and all rights under the Mining Act 1874 in relation to the land granted by such leases were preserved.

221    The deeming clauses formed part of the legislative context through which the nature of the rights conferred was to be ascertained. The nature of the rights conferred was not to be ascertained by ignoring the deeming clauses, as the State would have it. The deeming clauses had legal effect, and preserved the third party rights of miners, which – as the primary judge found – were rights involving significant incursions onto the land, and significant alterations to it.

222    The grounds of appeal said specifically to relate to scrub leases are rejected.

Special leases for a term (Grounds 69-94)

223    To the extent the State’s grounds of appeal sought to criticise the primary judge for giving “too much weight” to a particular factor or feature, they misunderstood the task before the primary judge. In any event, his Honour did not engage in any such weighing exercise, despite the language sometimes employed in the reasons. In our opinion, where his Honour used phrases such as “these matters far outweigh the incidents relied upon by the State” (e.g., [699]), that does not indicate any kind of balancing exercise; rather, it is his Honour’s turn of phrase to indicate which features or factors were more material to arriving at the correct characterisation.

224    It is also important to acknowledge what the primary judge said at [563] of his reasons, about the use which could be made of the decision in Ward, because it also dealt with special leases:

Moreover, it would be naïve and wrong not to take into account the different legislative scheme in New South Wales for granting SLTs. That scheme contains some important differences to the legislative scheme considered in Ward. The value of examining the reasoning in Ward is that it highlights the kinds of indicia in a legislative scheme which can justify a conclusion that a statutory lease conferred a right of exclusive possession.

225    At [564]-[567], the primary judge then explained why there was no single determinative feature of the special leases in Ward which led to the characterisation of them as leases conferring exclusive possession. Rather, there were three features in combination and cumulatively (see [566]):

(a)    there was no general provision such as in s 106 of the Land Act 1933 which would determine the lease upon reservation, sale or its other disposal (at [355]);

(b)    nor were there reservations applicable to the special lease equivalent to s 106 of the Land Act 1933 which, in the case of pastoral leases, reserved to the Crown the right to depasture stock or gave to any person the right to pass over any part of the leased land which was unenclosed or, if enclosed, was unimproved (at [355]); and

(c)    the purposes for which a special lease could be granted were also viewed as significant. Some of those purposes, such as uses as sites for tanneries, factories, saw or other mills, stores, warehouses or dwellings (s 116(5)) of the Land Act 1933) were described by the plurality as “uses in which it might ordinarily be expected that the user would wish to control access to the land” ([at 356]).

226    In our opinion, the primary judge was conscious of the State’s reliance on similarities in some of the terms of the leases in issue and those in Ward, and his Honour took those submissions into account. However, his Honour was correct to reject any approach that could be seen as simply adopting findings from Ward and applying them to a different lease in a different statutory context.

227    Where, for example, his Honour used a feature such as fencing as a matter supporting a characterisation of the conferral of exclusive possession, his Honour did so in particular terms and only because of the combination, or cumulative effect, of that feature with others, as we have explained at [198] to [205] above.

228    The primary judge’s finding at [610] indicates how his Honour used the size of the leased area, in a way the State now does not complain about or seek to have the findings about these leases set aside:

Secondly, although in common with some of the other SLTs there was a condition that the lessee not interfere with the right of the public to the use of inter alia any roads or tracks within the leased land (condition 16), there is no evidence that there were any such roads or tracks on the small leased area

229    These passages demonstrate how the primary judge correctly examined a number of features in combination, and cumulatively, just as the High Court did in Ward. His Honour did not look at a reservation such as the reservation in Special Lease No. 1955/7 Warren to members of the public to use roads within the leased area in isolation. Rather, he looked at it in the context of that particular lease, including the size of the leased area, the purpose of the lease and other differing factors.

230    In relation to Special Lease No. 1939/1 Warren, his Honour’s reasoning regarding the conferral of exclusive possession is found at [582]-[588] of Ohlsen. One factor which his Honour found material was that there was a travelling stock route on the lease area (at [586]-[587]):

There is a long history in Australia and New South Wales specifically providing legislative recognition to the need for land to be reserved for the purposes of travelling stock routes. This is so particularly with regard to the Western District, which is prone to seasonal conditions and droughts which require stock to be moved for them to survive. In New South Wales, the history goes back to at least the Crown Lands Occupation Act, s 19 of which provided that any person driving horses, cattle or sheep along any track used or required for the purpose of travelling may depasture such stock on any Crown Lands within the distance of a half a mile of such a track and notwithstanding any lease of such lands for pastoral purposes. I consider that it is also appropriate to take judicial notice of the notorious fact that many travelling stock routes, including in New South Wales, originated from tracks used by Indigenous people and early European explorers who frequently adopted Indigenous pathways as travelling stock routes (see, for example, Spooner, Firman and Walmanbirra, “Origins of Travelling Stock Routes. 1. Connections to Indigenous traditional pathways”, (2010) 32 The Rangeland Journal, 329-339).

The presence of a travelling stock route on the lease area is significant. It is inconsistent with the State’s propositions that the lease granted a right of exclusive possession. This is further reinforced by the express reservation in condition 15 of SLT No. 1939/1 Warren of the right of the public to use any of inter alia the roads or tracks on the lease area without interference by the lessee.

231    The State impugned this reasoning under cover of one of its arguments common to many of the leases in issue, about the way his Honour approached reservations and conditions in the lease: see [8] of the State’s written submissions. The State’s submissions about the primary judge’s reasoning on the special leases for a term ignore the context and range of factors considered by his Honour. These grounds of appeal are good examples of the cherry-picking approach taken by the State, which should be rejected.

232    The State’s contentions that the primary judge took too ‘subjective’ an approach to the entitlement of special lessee for a term to convert the lease to conditional purchase (see the State’s written submissions at [48]) should be rejected. What was “subjective” about the primary judge’s approach was not clearly identified. For example, in a section otherwise favourable to the State in concluding what was granted was a right of exclusive possession, the primary judge found (at [575(a)]):

The State overstated the significance of the lessee’s entitlement to apply to convert the SLT into a conditional purchase under s 190 of the CLC Act 1913. The right to convert to a conditional purchase was not absolute nor guaranteed, particularly in circumstances where the Minister’s power to approve such a conversion depended upon a favourable report by the Local Land Board (see s 190(5)).

233    That conclusion involves a statement of objective fact, and discloses no error. It was adopted by the primary judge in some of his reasoning on other leases, for example Special Lease No. 1939/1 Warren: see [588]. However, the primary judge added two other factors at this point:

Moreover, at the relevant time the right to convert a SLT to a conditional purchase was limited to leases for specified purposes, which did not include a SLT granted for “access and storage”, as was the case here. In addition, SLT No. 1939/1 Warren expired on 31 December 1950, while the option to convert to a conditional purchase or a lease in perpetuity did not became available to SLTs generally until 1968 (see ss 4(1)(b)(ii) and 4(1)(f)(ii) of the Crown Lands and Closer Settlement (Amendment) Act 1968).

234    The distinction the State sought to make in argument between looking at “the likelihood of such an application being granted” and the existence of the entitlement, with respect, again misstates the primary judge’s reasoning. The primary judge was examining the “precariousness” of the interest granted by looking (as only one factor) at how certain any such conversion entitlement was. Restrictions on the entitlement to apply, and preconditions to any entitlement being given effect, were all legitimate aspects of this assessment.

235    As to the related contention of the State about the approach of the primary judge to the lessee’s entitlement to apply for a special lease to be extended in perpetuity, we deal with this at [242]-[247] below in relation to the special leases for grazing, and our reasoning for rejecting the State’s contention is the same.

The Scheduled interest arguments

236    The primary judge’s reasoning on this aspect of the State’s contentions is found at [579]-[580] of Ohlsen:

It is important to note that although the parties agreed that “access” and “storage” were separate purposes for which a SLT could be granted, in its own terms SLT No. 1939/1 Warren was granted for the purposes of both “Access and storage”. This has important implications for whether the lease is a Scheduled interest within cl 3(8) of Sch 1, Pt 1 of the NT Act. That is because the relevant item in cl 3(8) is a lease granted under s 75 of the CLC Act 1913 that permits the lessee to use [land] or waters covered by the lease solely or primarily for “storage purposes”.

As the applicant pointed out, it is difficult to see how this particular SLT permitted the lessee to use the lease area primarily or solely for storage purposes when the terms of the grant of the lease permitted it also to be used for access in circumstances where access is not included in the list of items in cl 3(8).

(Emphasis original.)

237    Thus, the primary judge resolved this as a “matter of statutory construction”: see [581]. His Honour's approach to the construction of the Schedule was correct. In Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 at [81], Olney J observed, by reference to different clauses in the Schedule, that “those who have been responsible for drafting the legislation have gone to extraordinary lengths to identify with precision the various purposes from which leases intended to be covered by these subclauses have been granted.” Olney J concluded, therefore, “that the purposes specified in the Schedule are intended to relate to leases actually granted solely or primarily for those purposes”. We agree. The implication to be drawn from a lease granted for the purpose of ‘access and storage’ is not the same as a lease granted for the purpose of ‘storage’ alone.

238    In that light, the ground of appeal based on an absence of anything precluding the leaseholder from using the land primarily for storage purposes (ground 73) cannot succeed. It was an agreed fact that this lease was granted “for the purpose of access and storage”: see Ohlsen at [459]. Evidence to contradict that fact would have been inadmissible: see Evidence Act 1995 (Cth) s 191(2)(b). Further, his Honour found (at [461]):

According to the Gazette notification dated 20 December 1940, SLT No. 1939/1 Warren was granted for the purpose of “Access and storage” and covered an area of approximately 36 acres. According to the tender card which records the grant of this lease, the purpose was for “Bridge access” and “storage for fodder”. The parties conducted the case on the basis that the purpose was “Access and storage”. The lease was for the term 1 November 1940 to 31 December 1950, when the lease expired (as was agreed by the State and the applicant).

(Emphasis added)

239    In any event, the State’s contention that there was nothing to necessarily preclude the leaseholder from using the land primarily for storage purposes is incorrect. At [459] his Honour noted that the purposes of access and storage were purposes that had been declared by the Governor to be purposes within s 75 of the CLCA 1913. That section provides, among other things:

If it should appear to the satisfaction of the Minister that the land comprised in any such lease is not used and occupied bona fide for the purpose for which the lease was granted, such lease together with any rent paid in respect thereof shall be liable to be forfeited.

240    This confirms that the terms of the grant in issue here required the lease holder to use and occupy the land bona fide for both access and storage. To posit a situation where the lease holder uses the land so much for storage and so little for access that it is used primarily for storage is to commit the error of focussing on what subsequently happens on the land, rather than on the terms of the grant. In any event, it would be a situation where the lease holder risks breaching the terms of the grant. His Honour’s reasoning at [579]-[580] was correct.

Special leases for grazing (Grounds 95-108)

241    Most of the grounds of appeal in relation to the special leases for grazing have been addressed in our reasons to this point. Again, many of the individual grounds of appeal at [95]-[108] seek to “cherry-pick” a particular feature and have it considered in isolation, contrary to the correct approach in a characterisation exercise.

242    Two contentions specifically should be addressed, although they are common to some of the grounds of appeal about special leases for a term. Those two contentions are:

(a)    the entitlement of a lessee to apply under s 190 of the CLCA 1913 to convert the lease to a conditional purchase is a factor that supported a finding that the lease conferred a right of exclusive possession or rights which are inconsistent with native title rights and interests. The error is said to be located in Ohlsen at [575(a)], [588] [638], [695] and [700] (grounds 78, 85, 91, 99 and 105); and

(b)    the entitlement of the lessee (which arose following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW)) to apply under s 75A of the CLCA 1913 to have the lease be extended into perpetuity supported a finding that the lease conferred a right of exclusive possession or rights which are inconsistent with native title rights and interests. The error is said to be located in Ohlsen at [549(b)], [637], [642] and [699] (grounds 84, 93 and 104).

Conditional purchase entitlement

243    At [575(a)], in the section dealing with special leases for a term (in particular Special Lease No. 1955/7 Warren, where the primary judge upheld the State’s ultimate contention about exclusive possession), the primary judge explains his view on the State’s reliance on the entitlement to apply to convert the leased area into a conditional purchase:

The State overstated the significance of the lessee’s entitlement to apply to convert the SLT into a conditional purchase under s 190 of the CLC Act 1913. The right to convert to a conditional purchase was not absolute nor guaranteed, particularly in circumstances where the Minister’s power to approve such a conversion depended upon a favourable report by the Local Land Board.

244    Further reasoning appears at [588] in relation to other special leases for a term:

In addition, I repeat and adopt what is said at [575] above regarding my rejection of some of the State’s contentions concerning this aspect of SLT No. 1955/7 Warren. Moreover, at the relevant time the right to convert a SLT to a conditional purchase was limited to leases for specified purposes, which did not include a SLT granted for “access and storage”, as was the case here. In addition, SLT No. 1939/1 Warren expired on 31 December 1950, while the option to convert to a conditional purchase or a lease in perpetuity did not became available to SLTs generally until 1968 (see ss 4(1)(b)(ii) and 4(1)(f)(ii) of the Crown Lands and Closer Settlement (Amendment) Act 1968).

245    The primary judge made similar findings in relation to Special Lease No 1924/16 Walgett at [624]. There is no error in the primary judge’s assessment of this entitlement as no more than an entitlement to apply for conversion to a stronger form of tenure, with conditions to be met before any approval was granted. Indeed, the entitlement might be seen as tending against any suggestion the existing form of tenure included a right to exclude anyone and everyone for any or no reason; but rather that a stronger form of tenure might be required to achieve that kind of possession. We also adopt our reasoning set out above at [232]-[235] in relation to special leases for a term.

246    To the extent that the primary judge’s findings rely on the 1968 amendments, they are correct for the reasons we explain below.

Extension in perpetuity entitlement

247    The primary judge found the later amendments to the legislative scheme in 1968 allowing for a lease to be extended into perpetuity following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW) had “no relevance in circumstances where SLT No. 1908/51 (as extended) expired in 1925”: Ohlsen at [695]. The same finding is made at [699] in relation to Special Lease No. 1957/6 Nyngan. Those findings are plainly correct. The leases in question, said to constitute acts wholly extinguishing native title, were to be assessed at the time of the grant of the lease, in terms of the nature of the rights conferred: see Brown at [37]. At that time, there was no such entitlement. Nor did the entitlement arise during the currency of the leases.

Settlement leases (Grounds 17-30)

248    There are three specific contentions advanced by the State in relation to the settlement leases which we have otherwise not dealt with to this point.

Potential to use the land for agriculture or horticulture

249    This was said by the State to have required a conclusion that the leases were both a Scheduled interest and also conferred a right to exclusive possession.

250    These errors are said to arise in passages such as [214] in Ohlsen.

251    As to the Scheduled interest argument, the primary judge deals with this from [212]. As his Honour explains at [213], there were two preconditions to the settlement leases being characterised as a Scheduled interest, namely that they not be a lease which:

(a)    permitted the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

(b)    did not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

252    At [214], the primary judge found:

In my view, all five Settlement Leases are covered by the exemption in cl 3(3), with the consequence that none is a Scheduled interest under that provision. That is because, under each of them, the Settlement Leaseholder was permitted to use the land primarily for grazing or pastoral purposes and was not permitted to use the land solely or primarily for agriculture. As discussed above, the terms of each Scheduled Lease did not prevent the lessee from using part of the land for agriculture, but there was no permission for the land to be used solely or primarily for agriculture, horticulture, cultivation or similar purpose as referred to in paragraph (b) of the exemption.

253    The primary judge’s analysis is correct. His Honour correctly focused on the use of the word “permit” in cl 3(3)(b) of Part 1 of Schedule 1 to the Native Title Act. That paragraph does not refer to ‘permission’ in the sense of a mere absence of prohibition; rather, it asks what the lease positively allowed a lessee to do. It thus focusses on the express terms of the grant. To read it that way is consistent with the use of the word elsewhere in the Schedule and with the purpose of the Schedule as a whole. Parliament (and the States) are not to be taken to have intended to extinguish native title over land merely because there has been a grant which does not prohibit an inconsistent use.

254    It is true that this may require reading the word ‘permitted’ in a different sense in cl 3(3)(a), because the settlement leases here also lacked any prohibition on using the land solely or primarily for grazing or pastoral purposes. Construing permission in the same sense in both sub-paragraphs (a) and (b) would mean that the exclusion from the definition of scheduled interest inherent in both sub-paragraphs, taken together, would rarely if ever be engaged. Instead, ‘permitted’ should be read in (a) as referring to an absence of prohibition. It is a case where a simple canon of construction – that a word means the same thing when used twice in the same clause – must give way to a contrary intention discerned from the Act as a whole: see McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; 144 CLR 633 at 643. That is consistent with the ‘flexible, common sense approach’ to Schedule 1 summarised by Perry J in Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356 at [40].

255    The primary judge was correct to hold that the settlement leases were not scheduled interests.

The entitlement of a lessee to apply for a Homestead Selection under the CLA 1895 and CLCA 1913

256    These errors are said to arise in passages such as [227] of Ohlsen:

Fifthly, as was the case with a Pastoral, Homestead, Scrub or inferior land lessee whose dwelling house was on the leased land, the holder of a Settlement Lease could in the last year of the lease make an application for a Homestead Selection in respect of the leased land (s 27). The maximum area that could be applied for was 1,280 acres in the case of a holder of Settlement lease or 640 acres in the case of the other categories of lease (s 27). Upon grant, the Homestead Selection would be withdrawn from the ambit of the original lease, and the original lease would otherwise continue (s 27(v)). The position changed in 1903, when it became possible for a Settlement Leaseholder to apply for a Homestead Selection after the expiration of the first five years of the Settlement Lease (CLA Act 1903, s 25). Further evidence of the relationship between Settlement and Pastoral, Homestead and inferior land lessees is that the same application form had to be used when applying for a Homestead Selection (see regulation 70 in NSW Government Gazette, 3 June 1895).

257    Like the entitlement to apply for a conditional purchase, this feature of the leases is no more than a potentiality. The potentiality is permission to change to a stronger form of tenure in the future. As we have explained above, this cannot affect the characterisation of the rights conferred at the time of grant by the lease, other than negatively to the State’s arguments.

Support to conferral of exclusive possession given by statutory power to resume some or all of the land leased for any public purpose and the reservations

258    These errors are said to arise in passages such as [228] of Ohlsen:

Sixthly, as detailed further below, a Settlement Lease could be resumed for any public purpose and was subject to various reservations in favour of third parties. A Settlement Leaseholder could not assign or sublet the farm without consent and could not interfere with timber in a forest reserve.

259    The State’s challenge to this finding involved a comparison with the primary judge’s findings in respect of the special leases, where the primary judge accepted the State’s contentions: see, e.g., Ohlsen at [571]. Assuming the State may be correct to submit that the reservations in the settlement leases were not different in substance, and were perhaps narrower, than those dealt with by his Honour in the special leases for a term at [571], where his Honour overall found in favour of the State’s position, this is a good example where the State’s method of selecting one finding for one category of lease and comparing it to another finding for another category of lease fails to take account of the cumulative nature of the findings made by the primary judge before a characterisation was arrived at. In the example used by the State, it is clear that, in relation to Special Lease No. 1955/7 Warren (to which [571] relates), the main factor which determined the characterisation of conferral of a right of exclusive possession was what his Honour set out at [570], which we have reproduced already above at [177]. In that paragraph, his Honour says “First, and primarily”, indicating this feature was significant to his Honour’s characterisation. And therefore, in the context of the features set out in [570] (a leased area of five acres’ size, located close to the lessee’s farm held under conditional purchase, granted so as to improve access to the farm), the reservations did not change the characterisation of the grant which his Honour considered to be correct.

An additional matter

260    The State’s challenges to the settlement leases, as explained in the grounds we have just referred to, reveal another flaw in the State’s approach and a different way of “cherry-picking” alleged errors. The passages in the reasons impugned by these grounds appear in a section of his Honour’s reasons where he gives more than seven separate justifications for rejecting the State’s characterisation of the leases as conferring rights to exclusive possession. Impugning one fails to recognise that the primary judge’s reasoning is, correctly, cumulative and to be taken as a whole. Save for obvious errors which might be said to have infected the entire cumulative reasoning process as reflected in [219]-[231] (taking this as an example), the State could not in our opinion successfully impugn the ultimate characterisation by an argument based on one of the seven or more justifications.

Homestead leases (Grounds 42-54)

261    There are three specific contentions advanced by the State in relation to the homestead leases which we have otherwise not dealt with to this point.

262    Each of them must be understood in the context of the primary judge’s findings at [325]-[332] (plus the finding about trespass at [333]). It is appropriate to set out the whole of his Honour’s reasoning in these paragraphs:

First, it is beyond dispute that the purpose of creating Homestead Leases was to encourage leaseholders to live on, and improve, the land. That is not necessarily inconsistent with any native title rights relating to the land.

Secondly, the structure of the CL Act 1884 is significant. The object of Pt IV was to split up large pastoral runs (which were defined in s 4 as “Crown Land held under pastoral lease” at the commencement of the CL Act 1884). The provisions in Pt IV dealing with Homestead Leases came immediately after earlier provisions dealing with the division of pastoral runs (ss 70-77), the grant of pastoral leases (ss 78-80) and the grant of occupation licences for grazing purposes (s 81). Subsequent provisions in Pt IV provided for annual leases for pastoral purposes (s 85) and special leases (ss 86-92). Significantly, Pt IV also contained general provisions which affected all leases (see ss 96-98), including:

•    liability to forfeiture for non-payment of rent or breach of any condition;

•    a prohibition on lessees and licences taking timber other than for building or other purposes upon the leased land; and

•    a prohibition on any lessee preventing duly authorised third parties from cutting or removing timber or material for building or other purposes or from searching for any mineral.

Thirdly, as mentioned above, the scheme of the legislation was to require the holder of a pastoral run to lodge with the Minister a written application for a pastoral lease, which involved splitting the applicant’s holding into two areas, one being the leasehold area and the other being the resumed area. The effect of s 77 of the CL Act 1884 was to entitle a runholder, on application, to occupy the resumed area under an occupation licence for the purpose of grazing. Apart from occupation licences, provision was also made for a Homestead Lease to be granted over that part of the pastoral run which was the “resumed area”, as well as Crown Land (ss 81 and 82 of the CL Act 1884). Not unimportantly, Homestead Leases could only be granted in the Western Division, being the most remote part of the State with generally the least arable land.

Fourthly, the primary substantive differences between a Homestead Lease and a pastoral lease related to the greater maximum size of the former lease under the CL Act 1884 (10,240 acres for the former lease (s 82), compared to 1,920 acres for the latter lease (s 85)); the requirement that the leaseholder enter into residence within 90 days after approval of the Homestead Lease (s 82(iii)); and that the leaseholder reside on the leased land for at least six months of each of the first five years of the lease (s 82(iv)) (amended to “six months of each year of the prescribed term of residence” under s 34 of the CL Act 1889). I accept the applicant’s submission that the evident legislative intention was not to provide Homestead Lessees with any greater interest than that of pastoral lessees.

Fifthly, as to the similarities between Homestead Leases and pastoral leases, under the CL Act 1884 the Governor was empowered to grant pastoral leases over leasehold areas in all divisions of the State, with a term of 15 years in the case of a pastoral lease in the Western District (s 78(i)). Provision was also made for the Governor to withdraw from a pastoral lease any land required for any public purpose, but with a related right to compensation (s 78(vii)). Once a pastoral lease expired or was forfeited or was surrendered, provision was made in s 79 for the land to be relet or subdivided and then made available again as a pastoral lease or, alternatively, the area could be declared to be a resumed area (s 79). The term of a Homestead Lease was also 15 years (s 82(i)) and, as the applicant correctly submitted, all provisions that applied to pastoral leases in the Western Division applied mutatis mutandis to a Homestead Lease (being terms relating to rent issuance, forfeiture, surrender, extension, “or otherwise” (s 82(ii)).

Sixthly, the close connection between Homestead and pastoral leases is reflected in the fact that the form used for the Homestead Leases was the same as those for any pastoral lease (see regs 103 and 132 of the Crown Lands Regulations 1889 and regs 183 and 188 of the Crown Lands Regulations 1895). Furthermore, under both the CL Act 1884 and CL Act 1889, holders of either a Homestead Lease or a pastoral lease could apply for a Scrub Lease over land within the external boundary of the Homestead or pastoral Lease (s 88 of the CL Act 1884 and s 35 of the CL Act 1889).

Seventhly, in the case of both a Homestead Lease and a pastoral lease, the Governor could withdraw any land required for any public purpose at any time (s 78(vii) of the CL Act 1884, read together with 82(ii) which, as noted above, applied all provisions pertaining to pastoral leases in the Western Division to Homestead Leases). In such a case, either kind of leaseholder was only entitled to compensation in respect of the land for the unexpired term of the lease and for improvements lawfully made on the land withdrawn (s 78(vii) of the CL Act 1884).

Eighthly, while it may be accepted that the legislature envisaged that Homestead Leaseholders would take up settlement and live on the land for lengthy periods, it should not be overlooked that the residency period was for only five years (or the “prescribed period” under s 34 of the CL Act 1889) and could be broken down to six months of each year (s 82(iv) of the CL Act 1884). This contrasts, for example, with the requirement under a Homestead Selection that the holder reside on the land in perpetuity (see s 17 of the CL Act 1895).

Finally, as to the State’s reliance on the fact that the holder of a Homestead Lease had a right under s 130 of the CL Act 1884 to bring an action in trespass (other than a wilful trespass), the significance of this right should not be overstated. It is notable, for example, that under s 130 of the CL Act 1884, the holder of a Homestead Lease could only bring an action in trespass if the leased land had been fenced as required. Moreover, under s 55 of the CL Act 1895 (extracted above), the holder of a Homestead Lease was not empowered to bring an action for trespass committed by stock or impound stock, unless the land trespassed upon had been enclosed with a fence reasonably sufficient to keep out stock. This strongly suggests that the actions in trespass contemplated by the legislation were directed to stock trespassing onto the land, rather than Indigenous people exercising native title rights. The right of the holder of a Homestead Lease to bring an action in trespass was limited to circumstances where the trespass was wilfully caused.

Location

263    The State submitted the primary judge erred in taking into account that homestead leases could only be granted in the Western Division of New South Wales, which the primary judge described as the most remote and least arable part of New South Wales. It was an error for his Honour to see this as ‘not unimportant’ in assessing the precariousness of the homestead leases.

264    This error was said to be apparent from the last sentence of [327] of Ohlsen:

Not unimportantly, Homestead Leases could only be granted in the Western Division, being the most remote part of the State with generally the least arable land.

265    With respect to the State, seeking to elevate a single sentence in a judgment of this size and complexity to an appellable error was not an appropriate method for the State of New South Wales to adopt.

266    In any event, that single sentence reveals no error. Remoteness was a factor some judges in Wik considered: see the reasons of Gaudron J at 154, and the reasons of Kirby J at 232-233. As to the primary judge’s description of the Western Division, his Honour had a basis in the evidence for this description, which he had explained in more detail at [430]:

First, it is appropriate to highlight some aspects of the legislative history to the Western Lands Act 1901. It was introduced following a report of a Royal Commission into the condition of Crown tenants in the Western Division of the State, as referred to by Gaudron, Gummow and Hayne JJ in [Wilson] at [70]. The Royal Commission made recommendations concerning the special problems surrounding land settlement in the dry western-fringe of the State.

267    And this at [431]:

The following passage from the second reading speech to Bill which became the Western Lands Act 1901 highlights the problems presented by much of the land in the Western Division which was unimproved, uninhabitable and unsustainable without improvement (see [Wilson] at [71]):

[W]e are told in a way that we cannot doubt that there is hardly a solvent man in the western division. If this be true it means that to bring the western division into a state to carry stock there must be money expended upon it whether in water conservation, clearing, or scrubbing, and if these men [the present settlers] have no money, they must borrow to enable them to carry on. When a man lends money he naturally asks upon what security he is making the loan, and if the applicant can say, ‘Here I have an absolute lease for forty-two years, and at the very most I am assessed at three or four acres to a sheep, and no matter what Government comes in or what Parliament may be sitting, the greatest rental they can put upon me is 7d per sheep,’ then the man who contemplates lending the money can calculate his security. That is an absolute security, and the man who has money to lend knows what he is lending it upon.

268    By these references, picked up later in the passage about the homestead leases, his Honour was doing no more than explaining the objectives behind the lease system in this part of New South Wales at the time, and the context for the legislative grants. The material his Honour referred to involved no “subjective” judgment, contrary to the submissions of the State.

Residence

269    This error was said to be apparent from [325], [328], [331] and [332] of Ohlsen.

270    It is apparent from [325] that the primary judge well understood that leaseholders were to be encouraged and, for part of the period of the lease, required to live on the land they leased. There is no authority for the proposition that, merely because a leaseholder resides on leased land used for pastoral and grazing purposes, permission to reside is an unequivocal indication of conferral of a right of exclusive possession. Especially so where, as here, the requirement that the leaseholder reside on the leased land was a part-time residence requirement – for at least six months of each of the first five years of the lease. It is not to be suggested that the proper character of the grant of a homestead lease varied depending on whether the lessee is in residence, or is not. Rather, the correct question is whether, by imposing that residence requirement, in the context of the other features of that particular lease, there was an intention the lessee should be able to exclude anyone and everyone for any reason or no reason, as described in Brown.

271    The primary judge was correct to answer that question in the negative. As his Honour pointed out at [325], the objective was to encourage the lessee to live on and improve the land, but the leased land was land that had been split off from pastoral runs (see [326]), with only part of the split off area being available as a homestead lease and the rest available under an occupation licence for grazing only.

272    Further, the State’s criticism of [332] should be rejected. In this paragraph, giving the eighth feature or factor which underpinned his Honour’s characterisation, the primary judge referred to the fact that, while the legislature may have envisaged that homestead leaseholders would take up settlement and live on the land for lengthy periods:

it should not be overlooked that the residency period was for only five years (or the “prescribed period” under s 34 of the CL Act 1889) and could be broken down to six months of each year (s 82(iv) of the CL Act 1884). This contrasts, for example, with the requirement under a Homestead Selection that the holder reside on the land in perpetuity (see s 17 of the CL Act 1895).

273    Contrary to the State’s written submissions, this passage does not amount to the primary judge seeing only leases granted in perpetuity as capable of conferring a right to exclusive possession. It is but one further indication of precariousness – a limited and part-time residence requirement over, proportionally, a small amount of the period of the lease. There is no error in this approach.

274    The State’s contentions should be rejected.

Reservations such as withdrawal

275    This error was said to be apparent from [331] of Ohlsen:

Seventhly, in the case of both a Homestead Lease and a pastoral lease, the Governor could withdraw any land required for any public purpose at any time (s 78(vii) of the CL Act 1884, read together with 82(ii) which, as noted above, applied all provisions pertaining to pastoral leases in the Western Division to Homestead Leases). In such a case, either kind of leaseholder was only entitled to compensation in respect of the land for the unexpired term of the lease and for improvements lawfully made on the land withdrawn (s 78(vii) of the CL Act 1884).

276    As one of numerous factors relied upon for the characterisation, we see no error in this finding, and the State’s submissions did not develop how the finding was erroneous, beyond the “overarching” contentions put about the primary judge’s approach to limitations and reservations.

Improvement leases (Grounds 31-41)

277    Most of the State’s grounds of appeal relating to improvement leases (grounds 31-41) have been addressed in the matters we have explained to this point in our reasons. As to the specific contention about the primary judge considering the “intrinsically inferior” nature of the land subject of the improvement leases as a factor indicating that exclusive possession was not conferred, we see no error in his Honour examining the character of land over which the lease was granted, since that character is inherent in the character of the lease itself as an “improvement” lease. The “inferior quality” of the land subject to improvement leases was a description contained in s 26 of the CLA 1895: see Ohlsen at [258]. Section 26 described the land as “not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improvement thereof”. In his reasoning at [284], the primary judge did no more than echo the description from the statute as but one indicator that the improvement leaseholder’s rights were capable of co-existing with any native title rights such that the grant of such leases did not confer a right to exclusive possession.

Western lands leases (Grounds 55-68)

278    Subject to one matter, the same is true of the Western lands lease.

279    The one matter we have not considered to this point is the State’s submission that, in relation to the Western lands lease, the primary judge erred in the significance he attached to the reservations and limitations set out at ground 59 in the notice of appeal, and explained at [437] of his Honour’s reasons. The State submitted many of these features were also features of the leases in Wilson, and the distinguishing factor that the leases in Wilson were leases in perpetuity did not justify the primary judge discounting the similarities that otherwise existed between the leases in Wilson and the leases in issue in this proceeding.

280    Paragraphs [430]-[431], as we have identified above, are the part of the primary judge’s reasons where he explains some of the history and context for the granting of leasehold interests in the Western Division of New South Wales. At [432], and by reference to Wilson, the primary judge explains the rationale behind the grant of leases in perpetuity in this region, in short summary to increase the security of tenure enjoyed by the leaseholders and enable them to borrow against the leases.

281    His Honour went on (at [434]-[435]) to list a number of features, aside from the absence of a perpetual term, which contributed to the characterisation that what was conferred by the Western lands leases in issue were non-exclusive rights.

282    Contrary to the State’s submissions, the primary judge did not ‘discard’ the reasoning of the High Court in Wilson at [114]-[115]. His Honour’s emphasis in [432] on the perpetual feature of the leases accurately reflects the reasoning of the plurality in Wilson.

283    It is important to recall how those passages in Wilson were expressed, especially [115], where the plurality said:

The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non-observance of conditions is equivalent to the right of re-entry on breach of a condition subsequent attached to a determinable fee simple.

(Emphasis added.)

284    In other words, it was the conclusion at [112] that what had been created was “a tenure which, like freehold tenure, was to last “for ever” but the term “lease” indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents”, which led the plurality to conclude what was conferred was equivalent to a grant of fee simple: see [116]. It was this feature which led the plurality to compare the situation with Wik, where the leases lacked the “historical and conveyancing background” of the leases in Wilson, and which led their Honours in Wilson (at [117]) to describe a lease in perpetuity as a “substitute for the old Crown grant of the determinable fee simple”.

285    That is why, at [115], the plurality expressed the other reservations as “not inconsistent with” their principal conclusion. The primary judge understood the emphasis in Wilson. The State’s contentions should be rejected.

Conclusion

286    The appeal will be dismissed. The respondents did not submit there should be a costs order against the State, on the basis that the circumstances set out in s 85A(2) of the Native Title Act existed. Therefore, each party should bear its own costs of the appeal and there should be no order as to costs.

Associate:

Dated:    16 March 2022

SCHEDULE OF PARTIES