FEDERAL COURT OF AUSTRALIA

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The questions reserved for consideration be answered as follows:

(1)    On the facts set out in the applicant’s statement of claim, does the whole of the applicant’s claim fail because:

a.    the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and

b.    the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution because:

i.    the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,

ii.    the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.

Answer: No

(2)    If the answer to question (1) is “no”, on the facts set out in the applicant’s statement of claim, does the applicant’s claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, fail because:

a.    the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL1095 granted on 26 January 1886, or pastoral lease PL1875 granted on 15 August 1896, or pastoral lease PL1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);

Answer: No

b.    further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and

Answer: No

c.    in any event, for the reasons specified in paragraph 1(b) above.

Answer: No

(3)    If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), fail:

a.    because the said enactment did not have any effect on native title in the claim area as:

i.    any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;

ii.    further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;

iii.    further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and

Answer: No

b.    in any event, because the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).

Answer: No

(4)    If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, fail because the grants were not invalid as asserted in that:

a.    none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and

Answer: No

b.    in any event:

i.    as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution;

ii.    none of these grants were capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.

Answer: No

2.    Within 28 days, each party file and serve a short written submission on any further orders that they contend should be made by the Full Court.

3.    Subject to order 2, the proceeding otherwise be referred back to a docket judge for case management.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The applicant, Dr Yunupingu AM, on behalf of the Gumatj Clan or Estate Group of the Yolngu People, brought two applications under s 61 of the Native Title Act 1993 (Cth). One is a claimant application, seeking a determination of native title in favour of the Gumatj Clan or Estate Group. The second is a compensation application, seeking the payment of compensation for the alleged effects on native title of certain executive and legislative acts done after the Northern Territory became a territory of the Commonwealth in 1911, but prior to the coming into force of the Northern Territory Self-Government Act 1978 (Cth). In these reasons we shall call the group represented by the applicant the claimants. Dr Yunupingu passed away after judgment was reserved. The legal representatives for the claimants informed the Court that after ceremonial and sorry business is conducted, the claimants will authorise a new applicant, as s 66B of the NTA requires. Given the significant role played by Dr Yunupingu in these proceedings, in these reasons we have continued to refer to him as the applicant.

2    The two applications were filed in November 2019. The claim area is slightly different for each application; the compensation claim area is approximately 236 square kilometres. The claim area is located in the Gove Peninsula, in north-eastern Arnhem Land in the Northern Territory.

3    In the written submissions filed on behalf of the Northern Land Council and the Arnhem Land Aboriginal Land Trust (the NLC parties), the following uncontested background was given:

The case is the latest in a long campaign by Yolngu peoples for the recognition of their title. That includes Milirrpum v Nabalco (Gove Land Rights Case) where Blackburn J held that Yolngu society is founded on a government of laws, but concluded that the traditional rights and interests of the Yolngu clans in land on the Gove Peninsula within the Arnhem Land Reserve were not capable of recognition by the common law as property or, alternatively, had not survived the Crown’s acquisition of the radical title to the land in dispute. The decision of Blackburn J was the stimulus for the inquiry that led to the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by which Crown land comprising the Aboriginal reserves in the Northern Territory were restored to traditional control.

(Footnotes omitted.)

4    As the NLC parties’ submissions then observe, the legal conclusion of Blackburn J in Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141 was overturned in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1. Mabo (No 2) forms a critical part of the Commonwealth’s and the Northern Territory’s constitutional issues raised on the separate questions.

5    Given the active parties in these current proceedings, it should be noted that in the Gove Land Rights Case, Blackburn J recorded the first plaintiff, Milirrpum, as “a member of the Rirratjingu clan”, and another plaintiff, Munggurrawuy, as a member of the Gumatj clan. Other Yolngu clans were also represented by other plaintiffs in the Gove Land Rights Case. As we explain below, several representatives of the Rirratjingu Clan are respondents to these proceedings.

6    Mining in the claim area has a long history, the early stages of which are relevant to the issues to be decided by the Court on the present application, but the most well-known stage of which continues to the present day, having commenced in 1968, as described by Blackburn J in the Gove Land Rights Case at 149:

On 22nd February, 1968, the two defendants, the Commonwealth and Nabalco Pty. Ltd. (which I shall call “Nabalco”) entered into an agreement whereby the Commonwealth promised to grant a special mineral lease to Nabalco, for a term of forty-two years, of land included in the subject land. The purpose of the agreement was to enable Nabalco to mine the bauxite. The Commonwealth also promised to grant special purposes leases to Nabalco for the establishment of a township and for other purposes ancillary to Nabalco’s mining operations. The agreement was expressed to come into effect upon the coming into effect of an Ordinance approving it. Such an Ordinance, the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968, was duly passed and came into effect on 16th May, 1968. Leases were duly granted, Nabalco commenced operations accordingly, and the writ in this action was issued on 13th December, 1968.

7    The thirtieth respondent to the present proceedings, Swiss Aluminium Australia Limited (ACN 008 589 099), is the current lessee of one of the mineral leases granted pursuant to the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT) (the 1968 Ordinance), described by Blackburn J in the extract above.

8    In broad outline, the applicant’s case is as follows. The applicant accepts that, by reason of the grant of a pastoral lease in respect of the claim area in 1886 (and three further pastoral leases in respect of the claim area in the years up to 1903), the claimants’ exclusive native title rights in respect of the claim area were extinguished. However, the applicant contends that the claimants continued to hold non-exclusive native title rights in respect of the claim area, including the right to access, take and use for any purpose the resources of the claim area. This is said to include resources below, on or above the surface of the claim area, such as minerals on or below the surface. The applicant then contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place which, if valid: (a) may have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights (either generally or in relation to minerals, depending on the particular grant or act); and (b) may have extinguished or impaired those non-exclusive native title rights at common law. The applicant contends that if the grants or acts had any extinguishing effect, then, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) of the Constitution. On this basis, the applicant contends that each of the grants and acts falls within the definition of a “past act” in the NTA. The applicant then contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property.

9    It was clear that there were a number of complexities with the compensation application, including (but not limited to):

(a)    The claimant application has not yet been determined and there are claims by other First Nations groups, and individuals, that the claim area, or parts of it, was land in which they held native title. In particular, such claims were made by Rirratjingu People and a group of 21 other Indigenous respondents who identify as Yolngu.

(b)    The claimants allege that under traditional law and custom they had a right to take and use for any purpose the resources of the claim area, which included all minerals in the claim area, and that the claimants had native title rights in the airspace above the claim area.

(c)    There are substantial objections, including constitutional objections, by the Commonwealth and the Northern Territory to the fundamental basis for the claimants’ compensation claim.

10    Since the claims were filed, the parties debated whether and how some of the central issues in the compensation application might be dealt with separately. This process was case managed by a Judge and a Judicial Registrar of the Court. Agreeing on a process took a long time.

11    Eventually, it was agreed that the applicant would file a statement of claim in both proceedings in March 2022. In response, it was agreed that the Commonwealth would file an interlocutory application in the compensation proceeding, seeking orders to facilitate a hearing of a demurrer against the applicant’s claims for compensation.

12    Neither the applicant nor any other party contended that a demurrer would be an inappropriate procedure to deal with some of the central issues in relation to the compensation application.

13    However, a demurrer is not a form of pleading for which the Federal Court of Australia Act 1976 (Cth) and the Court’s rules provide. Order 20 r 3 of the Federal Court Rules 1979 (Cth) as enacted provided that “[n]o proceeding by way of demurrer shall be brought on any pleading”. Order 20 r 3 was amended by the Federal Court Amendment Rules 2007 (No 1) (Cth), and the amended rule contained no express prohibition on demurrers. The current iteration of the Court’s rules, being the Federal Court Rules 2011 (Cth), likewise contains no such express prohibition. However, there is also no express provision for the pleading of a demurrer in the Court, and in this respect the Court’s procedure stands in contrast to that of the High Court of Australia, which expressly permits and prescribes processes in relation to the filing of a demurrer: High Court Rules 2004 (Cth) r 27.07.

14    The removal of a demurrer process reflected the changes in the Court’s rules to allow pleadings on questions of law. Thereafter, the processes for strike out and summary dismissal were available in respect of questions of law arising on the pleadings, as were the processes of separate questions (Federal Court Rules r 30.01) and case stated (r 38.01).

15    Notwithstanding the Court’s rules, the parties sought to use a demurrer process and the Court accepted the filing and service of the Commonwealth’s demurrer. On 20 April 2022, Jagot J made orders to incorporate the Commonwealth’s demurrer into the Court’s current processes by the use of separate questions stated under r 30.01 of the Federal Court Rules. This is the course some of the authorities suggest is appropriate: see, for example, Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002; Alcock v Commonwealth [2012] FCA 524; 203 FCR 114; Alcock v Commonwealth [2013] FCAFC 36; 210 FCR 454; Ure v Commonwealth [2015] FCA 241; 323 ALR 164; Ure v Commonwealth [2016] FCAFC 8; 236 FCR 458.

16    Relevantly, the 20 April 2022 orders provided:

THE COURT ORDERS THAT:

1.    By 4 pm on 29 April 2022, the Second Respondent (Commonwealth) is to file and serve a demurrer substantially in the form of annexure “A” to these orders.

…

Disposal of demurrer

3.    For the purposes of determining the issues arising on the demurrer pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be determined separately from any other questions in the proceeding (separate questions):

(a)    Should ground 1 in the demurrer be allowed?

(b)    If the answer to question (a) is no:

(i)    should ground 2 in the demurrer be allowed?

(ii)    should ground 3 in the demurrer be allowed?

(c)    Should ground 4 in the demurrer be allowed?

…

ANNEXURE “A”

Demurrer

1.    The Second Respondent, Commonwealth of Australia (Commonwealth), demurs to the whole of the Applicant's statement of claim, and says that the facts alleged do not show any entitlement to compensation under the Native Title Act 1993 (Cth) (NTA) because:

(a)    the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and

(b)    the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51 (xxxi) of the Constitution because:

(i)    the just terms requirement contained in s 51 (xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,

(ii)    the grant was not capable of amounting to an acquisition of property within the meaning of s 51 (xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power - derived from its radical title - to grant interests in land and to appropriate to itself unalienated land.

2.    The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, and says that the facts alleged do not show any entitlement to compensation under the NTA because:

(a)    the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL 1095 granted on 26 January 1886, or pastoral lease PL 1875 granted on 15 August 1896, or pastoral lease PL 1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);

(b)    further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and

(c)    in any event, for the reasons specified in paragraph 1(b) above.

3.    The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), and says that the facts alleged do not show any entitlement to compensation under the NTA:

(a)    because the said enactment did not have any effect on native title in the claim area as:

(i)    any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;

(ii)    further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;

(iii)    further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and

(b)    in any event, because the just terms requirement contained in s 51 (xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).

4.    The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, and says that the facts alleged do not show any entitlement to compensation under the NTA, because the grants were not invalid as asserted:

(a)    none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and

(b)    in any event:

(i)    as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51 (xxxi) of the Constitution;

(ii)    none of these grants were capable of amounting to an acquisition of property within the meaning of s 51 (xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.

17    Due to the significance of the issues raised, the former Chief Justice made a direction under s 20(1A) of the Federal Court Act in respect of the hearing of the demurrer by a Full Court.

18    At the commencement of the hearing on the separate questions, we raised with the parties whether the order for separate questions should be reformulated to set out, in terms, the questions raised by the statement of claim (SOC) and the demurrer that the Full Court was to determine. After discussion with the parties, we formed the view that it was appropriate to restate the separate questions in this way. Accordingly, on 26 October 2022, the Full Court ordered that:

1.    Paragraph 3 of the orders made on 20 April 2022 be amended to read as follows.

Pursuant to rule 30.01 of the Federal Court Rules 2011, the following questions are to be determined separately from any other questions in the proceeding (separate questions):

(1)    On the facts set out in the applicant’s statement of claim, does the whole of the applicant’s claim fail because:

a.    the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and

b.    the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution because:

i.    the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,

ii.    the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.

(2)    If the answer to question (1) is “no”, on the facts set out in the applicant’s statement of claim, does the applicant’s claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, fail because:

a.    the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL1095 granted on 26 January 1886, or pastoral lease PL1875 granted on 15 August 1896, or pastoral lease PL1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);

b.    further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and

c.    in any event, for the reasons specified in paragraph 1(b) above.

(3)    If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), fail:

a.    because the said enactment did not have any effect on native title in the claim area as:

i.    any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;

ii.    further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;

iii.    further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and

b.    in any event, because the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).

(4)    If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, fail because the grants were not invalid as asserted in that:

a.    none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and

b.    in any event:

i.    as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution;

ii.    none of these grants were capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.

19    The separate questions set out above arise by reason of the filing of the SOC and the demurrer. Although the separate questions assume a particular set of facts, the questions are not hypothetical for reasons explained by the High Court in Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135 at [32]-[34].

20    In these reasons, we will refer to the subject matter of the Court’s orders and reasons as the separate questions.

21    At the conclusion of the hearing, the Court informed the parties that it proposed to reserve its decision and deliver judgment, with answers to the separate questions set out in the Court’s orders, and publish reasons for those answers. The Court indicated it would then hear the parties on any further or other relief. All parties indicated they were content with that course.

22    The active parties on the separate questions included the Commonwealth, the Northern Territory, Swiss Aluminium and the Attorney-General for the State of Queensland. Queensland intervened in the proceeding in response to notices given by the Commonwealth pursuant to s 78B of the Judiciary Act 1903 (Cth) that the issues raised in the proceeding involved matters arising under the Constitution or involving its interpretation. In these reasons where we refer to the contentions made by the Commonwealth and the Northern Territory, we should be taken to be including the supporting submissions made by Queensland and Swiss Aluminium, except in relation to what we have described as the Wurridjal argument: Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309; see [46] below. On the Wurridjal argument, the Northern Territory and Swiss Aluminium did not support the Commonwealth. Queensland made no submissions on the Wurridjal argument.

23    The other active parties were the applicant, the NLC parties and four members of the Rirratjingu Clan – Bakamumu Alan Marika, Wanyubi Marika, Wurrulnga Mandaka Marika and Witiyana Matpupuyngu Marika (the Rirratjingu parties). The NLC parties supported the applicant’s position in relation to the separate questions. The Rirratjingu parties make their own claims to native title over parts of the claim area, but on the separate questions they supported the position of the applicant.

24    All parties made lengthy and detailed written submissions, and oral submissions were heard over five days. The Court is grateful for the comprehensive and detailed assistance provided by the legal representatives of all active parties.

THE PLEADED COMPENSABLE ACTS

25    In these reasons, we use the term “compensable acts” to describe the acts identified by the applicant as those for which the claimants may seek compensation, depending on the findings of the Court. It is a shorthand phrase used by the parties in their submissions. By our use of it, we do not imply that we have formed any views about the claimants’ entitlements to the compensation claimed in the proceeding.

26    There are four sets of compensable acts to which the separate questions are addressed. On our reading of the SOC, the answers are unlikely to exhaust all of the claims for compensation, nor exhaust the issues in dispute between the parties in terms of any entitlement of the claimants or any other group to compensation. The effect of the answers to the separate questions on the compensation claim as a whole is a matter on which the parties will have the opportunity to be heard after the publication of the Court’s orders and reasons.

Grant of the Mission Lease (SOC at [171]-[202])

27    By a lease dated 1 July 1938, the Administrator of the Northern Territory granted the Mission Lease to the Methodist Missionary Society of Australia Trust Association. Its commencement was backdated to 1 July 1936, which suggests the Missionary Society may have been in occupation of the land since that earlier date. The Mission Lease covered the whole of the claim area, and extended beyond it.

28    The Mission Lease was granted under s 14 of the Aboriginals Ordinance 1918 (NT).

29    As enacted, s 14 of the Aboriginals Ordinance 1918 provided:

(1.)    The Administrator may grant to any aboriginal institution leases of any Crown Lands for any term not exceeding twenty-one years, at such rent and on such terms as he thinks fit.

(2.)    The lease may confer a right of renewal, providing it can be shown to the satisfaction of the Administrator that the lands therein described are required for and applied to the use and entirely for the benefit of aboriginals or half-castes, or both.

30    The construction and operation of s 14 of the Aboriginals Ordinance 1918 was central to several of the arguments about the Mission Lease. The applicant’s primary position is that the grant of the Mission Lease had no effect on the claimants’ native title, and there was no purported acquisition of property because the lease did not confer rights of exclusive possession on the lessee. His alternative position is that if exclusive possession was conferred, then the Mission Lease, if valid, would have extinguished the claimants’ non-exclusive native title rights: SOC at [180]-[182].

Enactment of 1939 Ordinance (SOC at [190]-[202])

31    The Mining Ordinance 1939 (NT) (1939 Ordinance) was made under s 21 of the Northern Territory (Administration) Act 1910 (Cth).

32    Section 107 of the 1939 Ordinance provided:

Subject to the provisions of this Ordinance and the regulations, gold, silver and all other minerals and metals on or below the surface of any land in the Territory, whether alienated or not alienated from the Crown, shall be and be deemed to be the property of the Crown:

Provided that this section shall not apply in the case of land granted by the Crown in fee simple, in which case the ownership of gold and minerals shall depend on the terms of any reservation (if any) of gold or other minerals.

33    The applicant contends (in summary) that, if valid, s 107 would have been inconsistent with the claimants’ native title mineral rights (see [43] below) and would have extinguished those rights at common law: SOC at [190]-[202], [505].

Enactment of the 1953 Ordinance (SOC at [213]-[231])

34    The Minerals (Acquisition) Ordinance 1953 (NT) (1953 Ordinance) was made by the Northern Territory Legislative Council, pursuant to s 4U of the NT Administration Act (as amended), and assented to by the Governor-General, pursuant to s 4X of the NT Administration Act.

35    Section 3 of the 1953 Ordinance provided:

All minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of any land in the Territory, not being minerals, which, immediately before the commencement of this Ordinance, were the property of the Crown or of the Commonwealth, are, by force of this Ordinance, acquired by, and vested absolutely in, the Crown in right of the Commonwealth.

36    The applicant contends (in summary) that if s 107 of the 1939 Ordinance did not have the effect contended, then s 3 of the 1953 Ordinance, if valid, would have been inconsistent with the claimants’ native title mineral rights (see [43] below) and would have extinguished those rights at common law: SOC at [213]-[231], [507].

The special mineral leases (SOC at [232]-[278], [293]-[315], [462]-[478])

37    There were five special mineral leases in issue on the separate questions. The first special mineral lease was purportedly granted by the Commonwealth to the Commonwealth Aluminium Corporation Pty Ltd over part of the claim area on 17 November 1958. The second, third and fourth special mineral leases were purportedly granted by the Commonwealth to the Gove Bauxite Corporation Ltd over parts of the claim area on 11 March 1963. Each of the first four special mineral leases was purportedly granted pursuant to the 1939 Ordinance, as amended.

38    The fifth special mineral lease was SML11. It was purportedly granted by the Commonwealth to Swiss Aluminium and Gove Alumina Ltd over parts of the claim area on 30 May 1969, pursuant to the 1968 Ordinance. As noted above, SML11 is still held by Swiss Aluminium today.

39    The applicant contends that, if valid, each of the special mineral leases would have “diminished and impaired” the surviving native title rights of the claimants: SOC at [246]-[248], [270]-[272], [308]-[310].

The way the compensable acts are said to engage the NTA

40    In respect of each of the compensable acts, the applicant contends that each was a past act within the terms of s 228 of the NTA, although for the Mission Lease this is the applicant’s alternative argument. All of these acts occurred prior to 1975 and the commencement of the Racial Discrimination Act 1975 (Cth).

41    The contention by the applicant which is largely responsible for the wider significance of this case is the way in which he deploys the term “invalid” in s 228. He contends that the compensable acts are invalid because they were acts done under the authority of s 122 of the Constitution, the Territories power, and that an exercise of that power engages s 51(xxxi) of the Constitution. Since there was an acquisition of property, without just terms being provided, he contends that each compensable act falls within the terms of s 228(2)(b), because:

apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist.

42    It is in response to this argument that the Commonwealth raises the two constitutional arguments referred to below.

OUTLINE OF THE PARTIES’ CONTENTIONS

43    The applicant accepts that, by reason of the grant of a pastoral lease in respect of the claim area in 1886 (and three further pastoral leases in respect of the claim area in the years up to 1903), the claimants’ exclusive native title rights were extinguished. However, the applicant contends that the claimants continued to hold non-exclusive native title rights in respect of the claim area, including the right to access, take and use for any purpose minerals on or below the surface (which we will refer to as native title mineral rights).

44    Each of the four successive pastoral leases contained a reservation of minerals. The Commonwealth contends that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established). This contention forms the basis of parts of separate questions 2 and 3. It should be noted that the Commonwealth’s contention in relation to the pastoral lease reservations concerns only the claimants’ native title mineral rights, as distinct from the claimants’ native title rights generally.

45    The positions of the applicant and the Commonwealth, respectively, in relation to the grant of the Mission Lease can be summarised as follows:

(a)    The applicant’s primary case in relation to the Mission Lease is that it did not confer a right of exclusive possession on the lessee, was not inconsistent with the claimants’ non-exclusive native title rights, and did not purport to extinguish native title. However, in the alternative, the applicant contends that, if the Mission Lease did confer a right of exclusive possession on the lessee, then the grant, if valid, would have extinguished those native title rights and purported to effect an acquisition of property on other than just terms, contrary to s 51(xxxi) of the Constitution. On this alternative, the applicant contends that: the grant is a past act attributable to the Commonwealth for the purposes of the NTA; by operation of the NTA, the lease was effective to confer on the Missionary Society the rights as lessee provided for in the Mission Lease (including a right of exclusive possession) over the claim area; and the claimants are entitled to compensation from the Commonwealth in respect of the acquisition of property effected by the grant.

(b)    The Commonwealth contends that the Mission Lease validly extinguished any native title rights in the claim area that then subsisted. This contention relates to the claimants’ native title rights generally, not only the claimants’ native title mineral rights. The Commonwealth’s contention has two (cumulative) limbs, which are reflected in paragraphs (a) and (b) of separate question 1. First, the Commonwealth contends that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted. Secondly, the Commonwealth contends that the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution. Within the second limb, the Commonwealth advances two constitutional arguments:

(i)    The Commonwealth contends that the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the legislation and legislative instrument under which the Mission Lease was granted.

(ii)    The Commonwealth contends that, in any event, the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.

46    The first constitutional argument concerns the relationship between s 122 and s 51(xxxi). The Commonwealth submits that the latter does not condition the former, as the High Court held in Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564. The Commonwealth contends that this Court is bound by Teori Tau and the later High Court decision of Wurridjal did not overrule Teori Tau. We shall describe this as the Wurridjal argument.

47    The second constitutional argument is independent of the first. Even if this Court is bound by Wurridjal to find that s 122 is conditioned by s 51(xxxi), the Commonwealth submits that native title rights are inherently defeasible, such that the requirement for just terms in s 51(xxxi) does not condition an exercise of legislative power which adversely affects or extinguishes those rights. The Commonwealth relies on the line of authority most clearly articulated in three cases in 1994; namely, Mutual Pools & Staff v Commonwealth [1994] HCA 9; 179 CLR 155, Health Insurance Commission v Peverill [1994] HCA 8; 179 CLR 226 and Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297.

48    The Commonwealth contends that there is authority, at least described as seriously considered dicta, that the concept explained in these cases applies to native title rights. That authority is a paragraph in the reasons of Gummow J in Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38; 190 CLR 513 at 613. Considerable time was spent in written and oral argument on this paragraph, how the other judgments in Newcrest should be understood as relating to it, its treatment in subsequent cases, and the weight that should be given to it. We shall describe this as the inherent defeasibility argument.

49    We note that there was a second argument about Newcrest to which some attention was paid in written and oral submissions. In substance, that argument concerned the accepted ratio in Newcrest that if an exercise of power was supported by s 122 and another power in s 51 of the Constitution, then the s 51(xxxi) protection was attracted. In light of our conclusions, it is not necessary to consider the application of this contention to the compensable acts.

50    We turn now to the parties’ contentions on the next compensable act, namely the 1939 Ordinance. The key provision of that Ordinance has been set out above. The applicant contends (in summary) that, if valid, the making of the 1939 Ordinance would have extinguished the claimants’ native title mineral rights at common law and that in the premises, the 1939 Ordinance purported to acquire property on other than just terms within the meaning of s 51(xxxi) of the Constitution. The applicant contends that the making of the relevant provision of the 1939 Ordinance was a past act attributable to the Commonwealth for the purposes of the NTA, and that the claimants are entitled to compensation under the NTA.

51    In relation to the 1939 Ordinance, the Commonwealth advances three contentions, which are reflected in separate question 2. These are:

(a)    the vesting did not have any effect on native title in the claim area as any native title mineral rights in the claim area (if established) had already been extinguished by the reservations of minerals in the pastoral leases;

(b)    further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and

(c)    in any event, the Commonwealth relies on the Wurridjal argument and the inherent defeasibility argument.

52    The key provision of the 1953 Ordinance has been set out above. The applicant’s primary contention in relation to the 1953 Ordinance is that, in light of the 1939 Ordinance, all minerals on or below the surface of the claim area were already the property of the Crown in right of the Commonwealth, and that the relevant provision of the 1953 Ordinance therefore had no extinguishing effect with respect to the minerals on or below the surface of the claim area.

53    In relation to the 1953 Ordinance, the Commonwealth advances several contentions, which are reflected in separate question 3. These are:

(a)    the enactment did not have any effect on native title in the claim area as:

(i)    any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;

(ii)    further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and

(iii)    further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and

(b)    in any event, the Commonwealth relies on the Wurridjal argument. There is no express reliance on the inherent defeasibility argument in relation to the 1953 Ordinance.

54    As to the five special mineral leases, the applicant pleads in respect of each lease that: the NTA apart, the grant of the lease was not inconsistent with the continued existence of the claimants’ non-exclusive native title rights and did not extinguish those rights; the doing of any activity permitted or required to be done by or under the grant of the lease, when done, prevails over but does not extinguish the claimants’ non-exclusive native title rights; and the grant of the lease was thereby inconsistent with the continued exercise of the claimants’ non-exclusive native title rights. By reason of this impairment, the applicant contends, in respect of each special mineral lease, that the grant of the lease, if valid, would have resulted in an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that this was on other than just terms. The applicant contends that the grant of each lease is a past act for the purposes of the NTA, and that the claimants are entitled to compensation.

55    In relation to the special mineral leases, the Commonwealth advances the following contentions (at this stage of the proceeding), which are reflected in separate question 4:

(a)    the Commonwealth contends that none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and

(b)    in any event, the Commonwealth relies on the Wurridjal argument and the inherent defeasibility argument.

SUMMARY OF OUR CONCLUSIONS

56    For the purpose of answering the separate questions, and only for that purpose, the Court has assumed that the applicant can prove at trial:

(a)    a bundle of rights under traditional law and custom comprising the claimants’ non-exclusive native title rights;

(b)    in particular, a right under traditional law and custom to take and trade in resources, including minerals (cf Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [382]); and

(c)    that in respect of the whole claim area, these rights are held under traditional law and custom by the Gumatj Clan or Estate Group of the Yolngu People, and not any other group.

Separate question 1

57    In our opinion, the Mission Lease did not confer a right of exclusive possession, and therefore did not extinguish the claimants’ non-exclusive native title rights. Thus, the applicant has made out the primary position pleaded at [174]-[178] of his SOC. Further, we reject the Commonwealth’s first and second constitutional arguments because:

(a)    the manner in which it dealt with the three separate grounds of the demurrer before it demonstrates that the High Court in Wurridjal overturned the principle it had earlier set down in Teori Tau;

(b)    this Court is bound by Wurridjal to find that s 122 of the Constitution is conditioned by s 51(xxxi);

(c)    it is therefore unnecessary to decide the alternative argument that the compensable acts were done pursuant to ordinances made under a statutory power sourced not only in s 122 of the Constitution, but also in a placitum of s 51 (eg, s 51(xxvi));

(d)    aside from the obiter dicta of Gummow J in Newcrest, the authorities have confined the application of the concept of inherent defeasibility to rights created by statute;

(e)    this Court is not bound by Gummow J’s obiter dicta, and should instead apply the weight of authority in native title law about the character of native title rights; and

(f)    native title rights are not inherently defeasible in the sense that description has been applied in the authorities.

58    Separate question 1 should therefore be answered “No”.

Separate question 2

59    The reservations in the four pastoral leases constituted a withholding or keeping back of any rights that may exist in relation to minerals, to the Crown. That is the proper interpretation of the reservations. They were not the full assertion of beneficial ownership by the Crown in minerals in a way which was inconsistent with the continuation of the claimants’ native title mineral rights. Therefore, the claimants’ native title mineral rights (if established) continued after the grants of the pastoral leases, and separate question 2(a) should therefore be answered “No”.

60    Those rights were also unaffected by the grant of the Mission Lease, and separate question 2(b) should therefore also be answered “No”.

61    As noted above, we reject the Commonwealth’s two constitutional arguments. Separate question 2(c) should therefore be answered “No”.

Separate question 3

62    In light of our conclusions in relation to the pastoral lease reservations issue, the Mission Lease issue and the effect of the 1939 Ordinance, the answer to separate question 3(a) is “No”. Further, in light of our conclusion in relation to the Wurridjal argument, the answer to separate question 3(b) is “No”.

Separate question 4

63    As noted above, we conclude that the Mission Lease did not extinguish the claimants’ non-exclusive native title rights. Therefore, separate question 4(a) should be answered “No”.

64    As indicated above, we reject the Commonwealth’s two constitutional arguments. Separate question 4(b) should therefore be answered “No”.

RELEVANT ASPECTS OF THE NTA

65    Section 4 of the NTA sets out a helpful guide to what is a complex legislative scheme. Its terms are of some importance to various aspects of the parties’ arguments. It provides:

4    Overview of Act

Recognition and protection of native title

(1)    This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

Topics covered

(2)    Essentially, this Act covers the following topics:

(a)    acts affecting native title (see subsections (3) to (6));

(b)    determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

Kinds of acts affecting native title

(3)    There are basically 2 kinds of acts affecting native title:

(a)    past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

(b)    future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

Consequences of past acts and future acts

(4)    For past acts and future acts, this Act deals with the following matters:

(a)    their validity;

(b)    their effect on native title;

(c)    compensation for the acts.

Intermediate period acts

(5)    However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.

Confirmation of extinguishment of native title

(6)    This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.

Role of Federal Court and National Native Title Tribunal

(7)    This Act also:

(a)    provides for the Federal Court to make determinations of native title and compensation; and

(aa)    provides for the Federal Court to refer native title and compensation applications for mediation; and

(ab)    provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

(b)    establishes a National Native Title Tribunal with power to:

(i)    make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and

(ii)    provide assistance or undertake mediation in other matters relating to native title; and

(c)    deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.

66    Sections 13A to 18 of the NTA provide for the validation of certain past acts and (by s 17) provide for an entitlement to compensation. Section 18 concerns the operation of s 51(xxxi) in certain circumstances. The resolution of the separate questions does not depend on any consideration of those provisions, and the parties did not address them in any detail, so we do no more than note them.

67    Section 47A of the NTA is applicable to much of the claim area. It is a beneficial provision, which permits the recognition of native title in certain circumstances by “disregarding” prior extinguishment for the purposes of a determination of native title. However, its operation was not a matter said by any of the parties to affect the answers to the separate questions.

68    Sections 51, 51A and 53 of the NTA concern the calculation and payment of compensation. Their presence in the legislative scheme is in our view of some relevance to the inherent defeasibility argument, but they are otherwise of no direct relevance to the answers to the separate questions.

69    The nature and operation of s 223(1) assumes some prominence in the parties’ arguments, especially the inherent defeasibility argument.

223    Native title

Common law rights and interests

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

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

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

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

70    Section 228 of the NTA defines a past act for the purposes of the compensation provisions. It relevantly provides:

228    Past act

Definition

(1)    This section defines past act.

Acts before 1 July 1993 or 1 January 1994

(2)    Subject to subsection (10), if:

(a)    either:

(i)    at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

(ii)    at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

(b)    apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.

71    It was common ground for the purposes of the separate questions that if the applicant’s contentions about the 1939 Ordinance were correct (including because the Court rejected the Commonwealth’s arguments about the four pastoral leases), and the Court rejected the Commonwealth’s two constitutional arguments, then (at least) the 1939 Ordinance was a past act within s 228(2) (T407-408).

RELEVANT HISTORICAL BACKGROUND

72    In some of the following sections, there are titles to legislative instruments, provisions in those instruments or in statutes, and descriptions of powers and circumstances which resonate with the past injustices inflicted on First Nations Peoples in this country. The reproduction of them here is necessary because those are the historic facts relevant to the Court’s consideration of the parties’ arguments, but that reproduction should not occur without the Court expressly recognising the impact that the use of such terms and descriptions may have on First Nations Peoples, and the way those terms and descriptions may recall the trauma of their lived experiences, and those of past generations.

73    Some of the history of post-colonisation control of the Northern Territory and the claim area is set out by Blackburn J in the Gove Land Rights Case at 147-149. We have drawn on this in setting out the chronology below.

The period from 1863 to 1910

74    In July 1863, by Letters Patent under the Australian Colonies Act 1861 (UK), the whole of what is now the Northern Territory was annexed to the colony of South Australia.

75    On 1 January 1901, the Commonwealth of Australia was established under the Constitution. The area that is now the Northern Territory remained part of the (now) State of South Australia.

76    In the period 1886 to 1903, four pastoral leases were granted over the claim area. These are identified at SOC [113]-[163] and copies are attached to the SOC. The four pastoral leases are:

    Pastoral Lease No 1095 dated 26 January 1886, granted pursuant to the Northern Territory Land Act 1872 (SA) or the Northern Territory Crown Lands Consolidation Act 1882 (SA);

    Pastoral Lease No 1875 dated 15 August 1896, granted pursuant to the Northern Territory Crown Lands Act 1890 (SA) (the 1890 Crown Lands Act);

    Pastoral Lease No 1991 dated 13 October 1899, also granted pursuant to the 1890 Crown Lands Act; and

    Pastoral Lease No 2229 dated 21 September 1903 (the 1903 Lease), granted pursuant to the Northern Territory Land Act 1899 (SA) (the 1899 Land Act).

77    Each pastoral lease covered all of the claim area, although each also extended beyond it. In other words, the pastoral leases covered an enormous area of land and waters. As we have noted, all parties accepted that the pastoral leases extinguished any or any surviving exclusive native title rights in respect of the claim area.

78    Each pastoral lease contained a reservation of minerals and timber. Each reservation was expressed in different language, the differences being a matter the Commonwealth noted might be of some importance. The one which the Commonwealth identified as most favourable to its extinguishment argument about these reservations was in the 1903 Lease. The relevant part of that lease provided:

AND ALSO excepting and reserving out of this lease under His Majesty His Heirs and Successors all trees and wood standing and being on the said lands and all minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and sand with full and free liberty of access ingress egress and regress to and for the said Minister and his agents lessees and workmen and all other persons authorised by him or other lawful authority with horses carts engines and carriages or without in over through and upon the said land to fell cut down strip and remove all or any trees wood or underwood or bark and to work or convert such trees word or underwood into charcoal and to dig try search for and work the said minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and send [sic – sand] and to take the same from the said lands and to erect buildings and machinery and generally to do such other work as may be required…

79    When we explain our conclusions on the Commonwealth and Northern Territory’s arguments about the reservations in the pastoral leases, we use the 1903 Lease. This is because, if the Commonwealth and Northern Territory’s contentions are not correct in relation to this pastoral lease, it follows from the Commonwealth’s submissions that their contentions would not be correct for any of the four leases.

80    The Commonwealth and the Northern Territory contended the effect of these reservations was to extinguish any remaining non-exclusive native title in terms of a right to take and use resources for any purpose, including minerals.

81    The right to take and use resources for any purpose, including minerals, is relied upon heavily by the applicant in his pleadings in terms of the effects of the compensable acts. It appears that it is for the extinguishment of this right that particular compensation is sought.

82    In other words, the inclusion of the pastoral lease argument in the separate questions is because the Commonwealth and the Northern Territory contend that the pastoral lease reservations have such an extinguishing effect that, thereafter, no native title mineral rights over the claim area continued and therefore the later compensable acts did not “affect” the asserted native title mineral rights.

The period from 1911 onwards

83    On 1 January 1911, South Australia surrendered the Northern Territory under s 111 of the Constitution, which provides:

States may surrender territory.

The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

84    The Commonwealth accepted that surrender by the Northern Territory Acceptance Act 1910 (Cth), which included in the recitals reference to s 122 of the Constitution. Section 6(1) of the NT Acceptance Act relevantly provided:

The Northern Territory is by this Act declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth, by the name of the Northern Territory of Australia.

85    Section 10 of the NT Acceptance Act relevantly provided:

All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall continue to be held from the Commonwealth on the same terms and conditions as they were held from the State.

86    The NT Administration Act was enacted in 1910 to provide for the “Provisional Government of the Northern Territory”. Section 13 provided:

(1.)    Until the Parliament makes other provision for the government of the Territory, the Governor-General may make Ordinances having the force of law in the Territory.

(2.)    Every such Ordinance shall—

(a)    be notified in the Gazette;

(b)    take effect from the date of notification, or from a later date to be specified in the Ordinance;

(c)    be laid before both Houses of the Parliament within fourteen days of the making thereof, or, if the Parliament is not then sitting, within fourteen days after the next meeting of the Parliament.

(3.)    If either House of the Parliament passes a resolution, of which notice has been given at any time within fifteen sitting days after any such Ordinance has been laid before the House, disallowing the Ordinance, the Ordinance shall thereupon cease to have effect.

87    The NT Administration Act provided for the acquisition of land in the Northern Territory. Section 9 provided:

The provisions of the Lands Acquisition Act 1906 shall apply to the acquisition by the Commonwealth, for any public purpose, of any land owned in the Territory by any person:

Provided that, in determining the compensation to which the owner is entitled under that Act, the value of the land shall be taken not to exceed the unimproved value of the land, or the interest therein of the owner, at the date of the passing of this Act together with the value of his interest in the improvements on the land at the date of the acquisition of the land.

88    No party referred to this provision as having any relevance to the issues before the Court. In our opinion what s 9 establishes, at least, is that the exercise of federal legislative power in the enactment of the NT Administration Act, supported by s 122 of the Constitution, expressly included a power to acquire property, and to do so on just terms.

89    In 1918, the Aboriginals Ordinance 1918 was made under the NT Administration Act. This ordinance continued in force until its repeal in 1953 by the Welfare Ordinance 1953 (NT).

90    The effect of the Aboriginals Ordinance 1918 was relevantly described in Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 49-53 (Dawson J) and 74-76 (Toohey J), and later in Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; 109 FCR 488, where Sackville J said at [41]:

In its original form, the Ordinance said nothing about entry into waters on or near an Aboriginal reserve. The Yirrkala Report, however, noted that (at par 26):

“Having proclaimed the Arnhem Land Reserve, the Government considered that the fact that the Aboriginal Ordinance ... provided that persons should not enter the reserves without permission indicated that it was the intention of the Ordinance to ensure that reserves should be used solely by Aborigines.”

(Emphasis added.)

91    Section 6 of the Aboriginals Ordinance 1918 provided:

(1.)    The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.

(2.)    Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.

(3.)    The powers of the Chief Protector under this section may be exercised whether the aboriginal or half-caste is under a contract of employment or not.

92    By s 7 of the Ordinance, the Chief Protector was made the guardian of “every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living”.

93    In 1931, the NT Administration Act was amended so that the power of the Governor-General to make ordinances in the Northern Territory was provided for in s 21 of the Act, in similar terms to s 13 of the Act as enacted, except that each ordinance was required to be laid before each House of Parliament within 30 sitting days of the making of the ordinance.

94    On 14 April 1931, the Arnhem Land Reserve was created “for the use and benefit of the aboriginal native inhabitants of North Australia”, pursuant to s 102 of the Crown Lands Ordinance 1927 (NT). An earlier reserve had been created in 1920. As well as being important factual background to the circumstances of First Nations Peoples in the claim area after settlement, the history of the Arnhem Land Reserve was raised particularly by the NLC parties in their submissions about the proper interpretation of the effects of the Mission Lease.

95    The Arnhem Land Reserve covered approximately 80,000 square kilometres at the time of its pronouncement in 1931. It was extended in October 1940 and then effectively consolidated with two other reserves in 1963 (Darch and Croker Islands on the Coburg Peninsula), following an inquiry by a parliamentary committee established in response to the Yirrkala Bark Petition. The reserve continued after 1963 by proclamation under a different ordinance, the Crown Lands Ordinance 1931 (NT), apparently because of some doubts about the validity of the earlier proclamation: Director of Fisheries at [33]-[40].

96    On the applicant’s case as pleaded, the Arnhem Land Reserve remained in place for the entire duration of the Mission Lease, and encompassed the entire claim area. At no point during the Mission Lease’s term was any part of the Arnhem Land Reserve resumed, notwithstanding the existence of the power to do so under s 102 of the Crown Lands Ordinance 1927 (NT).

97    Before turning to the arguments about the compensable acts, we deal with the Commonwealth’s contentions about the early grants of pastoral leases.

THE PASTORAL LEASE RESERVATIONS ARGUMENT

98    A copy of the 1903 Lease is annexed as Document 4 to the SOC. The relevant reservation appears at 1-2 of that document. The reservation has been set out above, but for ease of reference we set it out again:

AND ALSO excepting and reserving out of this lease under His Majesty His Heirs and Successors all trees and wood standing and being on the said lands and all minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and sand with full and free liberty of access ingress egress and regress to and for the said Minister and his agents lessees and workmen and all other persons authorised by him or other lawful authority with horses carts engines and carriages or without in over through and upon the said land to fell cut down strip and remove all or any trees wood or underwood or bark and to work or convert such trees wood or underwood into charcoal and to dig try search for and work the said minerals metals (including Royal metals) ores and substances continuing metals gems precious stones coal and mineral oils guano claystone and send [sic – sand] and to take the same from the said lands and to erect buildings and machinery and generally to do such other work as may be required …

(Emphasis added.)

Applicable principles

99    There does not appear to be any real dispute between the parties about the applicable principles as to when an executive act or grant extinguishes native title rights. In essence, the test is concerned with inconsistency of rights. In Akiba v Commonwealth [2013] HCA 33; 250 CLR 209, French CJ and Crennan J explained at [30]-[35]:

The early approach of this Court in Mabo v Queensland and Mabo v Queensland [No 2] to determine whether native title rights or interests had been extinguished by legislative or executive action focused upon the intention to be imputed to the legislature or the executive. For both legislative and executive action, a plain and clear intention to extinguish native title was required. Imputed legislative intention is, and always was, a matter of the construction of the statute. …

The identification of a statute’s purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed. However, purposive construction to ascertain whether a statute extinguishes native title rights or interests is not without difficulty where the statute was enacted prior to this Court’s decision in Mabo [No 2] that the common law could recognise native title. The difficulty was described by Gummow J in Wik Peoples v Queensland. The Court in that case was, as his Honour pointed out, construing statutes “enacted at times when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been”. That reality affected the application of the purposive approach to construction. The Court therefore focused on inconsistency as the criterion for extinguishment. In the case of competing rights – native title rights and interests on the one hand and statutory rights on the other – the question was:

“whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.”

His Honour observed that that notion of inconsistency included the effect of a statutory prohibition of the activity in question.

In Fejo v Northern Territory the plurality held that a grant of land in fee simple extinguished underlying native title because the two sets of rights were inconsistent with each other. Similarly, in Yanner v Eaton the plurality said: “native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests.” Nevertheless, “[t]he extinguishment of such rights must, by conventional theory, be clearly established”.

…

The pre-eminence of inconsistency as the criterion of extinguishment of native title rights by the grant of rights by the Crown or pursuant to statutory authority was reiterated by the plurality in Western Australia v Ward. Their Honours warned against misunderstanding the criterion of “clear and plain intention” to extinguish, which had been used in earlier decisions of the Court. The subjective states of mind of those whose acts were alleged to have extinguished native title were irrelevant:

“As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights.”

(Footnotes omitted.)

In so saying, their Honours emphasised the need to identify and compare the two sets of rights. In so doing, they distinguished between activities on land and the right pursuant to which the land is used. Their Honours went on to reject the proposition that there could be degrees of inconsistency between rights or, absent statutory powers, suspension of one set of rights in favour of another and said: “Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.” …

(Footnotes omitted.)

100    In Akiba, Hayne, Kiefel and Bell JJ stated at [52] that “inconsistency of rights lies at the heart of any question of extinguishment” (original emphasis). Their Honours discussed the notion of inconsistency of rights at [61]-[64]:

This Court held in Western Australia v The Commonwealth (Native Title Act Case) that, at common law, native title rights and interests can be extinguished by “a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title”. In Yanner, the plurality noted that the “extinguishment of such rights must, by conventional theory, be clearly established”. Likewise, as the plurality held in Ward, under the NTA, “[w]hether native title rights have been extinguished by a grant of rights to third parties or an assertion of rights by the executive requires comparison between the legal nature and incidents of the right granted or asserted and the native title right asserted”.

As was also noted, however, by the plurality in Ward, while it is often said that a “clear and plain intention” to extinguish native title must be demonstrated, it is important that this expression not be misunderstood. The relevant question is one of inconsistency, and that is an objective inquiry. The “subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant”.

Hence, as the NTA acknowledges in s 211, and as was held in Yanner, “[r]egulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent)”. Likewise, regulating particular aspects of the usufructuary relationship with traditional waters does not sever the connection of the Torres Strait Islanders concerned with those waters (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent).

Not only does regulation of a native title right to take resources from land or waters not sever the connection of the peoples concerned with that land or those waters, regulation of the native title right is not inconsistent with the continued existence of that right. Indeed, as was pointed out in Yanner, “regulating the way in which a right may be exercised presupposes that the right exists”. Of course, regulation may shade into prohibition, and the line between the two may be difficult to discern. But the central point made in Yanner, and reflected in each of Wik, Fejo, Yarmirr and Ward, is that a statutory prohibition on taking resources from land or waters without a licence does not conclusively establish extinguishment of native title rights and interests of the kind found to exist in this case: “the rights to access, to remain in and to use the native title areas”, and “the right to access resources and to take for any purpose resources in the native title areas”.

(Footnotes omitted.)

101    To similar effect, in Western Australia v Brown [2014] HCA 8; 253 CLR 507, French CJ, Hayne, Kiefel, Gageler and Keane JJ stated at [32]-[33] and [37]-[38]:

Did the grant of the mineral leases extinguish some or all of the claimed native title rights and interests?

To answer this question, it is necessary, as the plurality held in Ward, to ask “whether the rights [granted] are inconsistent with the alleged native title rights and interests”. This question is “an objective inquiry which requires identification of and comparison between the two sets of rights”. …

…

The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests? As these reasons will later demonstrate, to the extent to which the decision in De Rose [No 2] countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted), it is wrong and should not be followed. In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important only to the extent to which it directs attention to the nature and content of the rights which were granted.

There cannot be “degrees of inconsistency of rights”. “Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment”. As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where “the existence of one right necessarily implies the non-existence of the other”. And one right necessarily implies the non-existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.

(Footnotes omitted.)

102    See also Queensland v Congoo [2015] HCA 17; 256 CLR 239 at [31]-[37] (French CJ and Keane J), [57]-[61] (Hayne J), [87]-[94] (Kiefel J), [130]-[131] (Bell J), [156]-[159] (Gageler J).

103    As submitted by the Northern Territory, without being exhaustive, native title may be extinguished by grant of inconsistent rights in land from the Crown to a third party or by the appropriation to the Crown of inconsistent rights in land: Mabo (No 2) at 63-64, Brennan J; Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 at 84-85, Brennan CJ. As to the extinguishing effect of an appropriation to the Crown, see Bodney v Westralia Airports Corporation Ltd [2000] FCA 1609; 109 FCR 178 at 189-191, Lehane J and Lawson v Minister for Land and Water Conservation (NSW) [2003] FCA 1127 at [21], Whitlam J.

The Commonwealth’s submissions

104    The claimed native title right in issue is a non-exclusive “right to access, take and use for any purpose the resources of the Claim Area (including … minerals on or below the surface of the Claim Area)”: SOC at [52(b)(iv)].

105    The Commonwealth submits (in summary) that:

(a)    Properly construed, the object of the minerals reservation in the 1903 Lease was to ensure that property in all minerals in the leased land was vested in the Crown and that rights to take those minerals were held by the Minister or agents or by authorised persons.

(b)    At the time of the grant, it was likely assumed that the Crown already had full beneficial ownership of the claim area including all minerals. That assumption was overruled in Mabo (No 2), which held that the Crown acquired only “radical title” rather than full beneficial ownership at settlement.

(c)    If there were native rights in relation to minerals in the claim area, the minerals reservation was an assertion by the Crown of beneficial ownership in those minerals. The effect of the reservation was to appropriate to the Crown the minerals in the leased land.

(d)    This view is supported by Attorney-General v Brown (1847) 1 Legge 312, a judgment of the Supreme Court of New South Wales (Stephen CJ, Dickinson and Therry JJ). In that case, the Crown brought an action for intrusion (which is similar to an action for trespass). A prerequisite was that the Crown had title by record under which it had a right of exclusive possession. It was held that the Crown had such title on the basis of a reservation in the lease.

(e)    Although Attorney-General v Brown was overruled in Mabo (No 2), that overruling does not affect its relevance for present purposes, as outlined above.

(f)    This view is supported by a passage in the judgment of Gageler J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [112], in which his Honour said:

Momentous as Mabo [No 2] was in the development of the common law of Australia, its significance for those aspects of Attorney-General v Brown [(1847) 1 Legge 312] that are of present relevance is minimal. Given that the land in question had been the subject of the grant of a Crown lease from which the coal in question had been expressly reserved, it is difficult to see how the result in Attorney-General v Brown could have been different even if the view which was to prevail in Mabo [No 2] had been applied. What would have been different would have been the steps in the analysis leading to that result: instead of the grant and reservation being seen as the exercise by the Crown of a proprietary right which the Crown had as the original absolute owner of all land in New South Wales on and from settlement in 1788, the grant and reservation would have been seen as an exercise by the Crown of non-statutory executive power which had the consequence of creating rights of ownership in respect of the land in question, in the Crown and in the lessee, on and from the time of the exercise of that non-statutory executive power in 1840. Either way, the Crown as represented by the Attorney-General would still have had the possession necessary to found an action for intrusion.

In that passage, Gageler J said that, although Attorney-General v Brown was overruled by Mabo (No 2), the result of the case would have been the same if decided under the principles expressed in Mabo (No 2). Gageler J referred to the grant and reservation being an example of the exercise by the Crown of non-statutory executive power which had the consequence of “creating rights of ownership” in respect of the land in question in the Crown. Further, Gageler J considered that the action for intrusion would have been successful post-Mabo (No 2). That action required the Attorney-General on behalf of the Crown to have title by record under which it had a right to exclusive possession.

Consideration

106    In our view, the Commonwealth has not established that any native title mineral rights in respect of the claim area were extinguished by the 1903 Lease.

107    First, although the term “reservation” in strict usage identifies something newly created out of the land or tenement demised, the term has often been used in Australia to identify that which is withheld or kept back: see Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; 121 CLR 177 at 194, Windeyer J; Wik at 200-201, Gummow J. In Wade, Windeyer J said that the terms “reservation”, “reserving” etc are “often used to mean a keeping back of a physical part of a thing otherwise granted: and so they are to be understood and have long been understood in the Australian law of real property”. It is true that, as the Commonwealth submits in its reply submissions, the judgment is predicated on the pre-Mabo (No 2) view that the Crown had ownership rights in respect of minerals. However, the observations of Windeyer J about the Australian usage of “reservation” or “reserving” remain apt in considering whether the reservation in the 1903 Lease constituted a mere holding back or the creation of property rights in the Crown.

108    Indeed, as the NLC parties submit, it would be paradoxical if the reservation extinguished any native title mineral rights given that the existence of reservations from a grant of a pastoral lease, including a reservation of timber and minerals, is a key reason why there is no necessary inconsistency between the grant of a pastoral lease and the continuance of non-exclusive native title rights to use the land and its resources: see, for example, Wik at 122 (Toohey J), 154 (Gaudron J), 200-201 (Gummow J), 229 (Kirby J); Ward at [178], [184], Gleeson CJ, Gaudron, Gummow and Hayne JJ.

109    Secondly, the text of the reservation in the 1903 Lease is consistent with a withholding or keeping back of any rights that may exist in relation to minerals, as distinct from a creation of rights in favour of the Crown. The words “excepting” and “reserving” appear to be used interchangeably or to express similar concepts. The words “out of this lease” suggest a holding back. The reservation of “liberty” to access and dig etc is made not only in respect of the Minister and those authorised by him, but also in respect of persons with “other lawful authority”. Thus, the lease contemplates persons other than the relevant servants of the Crown enjoying these aspects of the reservation. This is consistent with the reservation merely preserving whatever rights to access and dig etc otherwise exist from time to time.

110    Thirdly, the statutory context in which the 1903 Lease was granted (the 1899 Land Act) does not assist the Commonwealth’s contention, as set out in the applicant’s submissions at [196]-[200], which we adopt in the following paragraphs.

111    Section 1 of the 1899 Land Act provides that the Act must be read together with the 1890 Crown Lands Act. The following features of the 1890 Crown Lands Act are noted:

(a)    The 1890 Crown Lands Act provides for the grant of various categories of leases, including perpetual leases, agricultural leases, pastoral leases and leases for special purposes. It also provides for sale of lands by public auction, the dedication of lands for public purposes, and the reservation of lands for various purposes.

(b)    In relation to grants of fee simple and grants of perpetual leases under the 1890 Crown Lands Act, s 8:

(i)    provides that such grants “shall not be construed to include or to convey any property in any gold, silver, copper, tin, or other metals, ore, mineral, or other substances containing metals, or any gems or precious stones, or any coal, or mineral oil in or upon such land, the same being reserved by the Crown”;

(ii)    further provides that “it shall be lawful for the Minister, and for all persons authorised by him, at all times to enter upon any such land, and to search and mine for and remove therefrom any gold, metals, and other things reserved there found”;

but this provision does not apply to pastoral leases granted under the 1890 Crown Lands Act.

(c)    In relation to perpetual leases granted under the 1890 Crown Lands Act, s 31 provides that every such lease “shall contain a reservation to the Crown of all gold, silver, copper, tin, and other metals, ores, minerals, and other substances containing metals, and all gems and precious stones, and all coal, timber trees (except dead fallen timber), and mineral oils in or upon the leased lands”. Again, this provision does not apply to other categories of leases such as pastoral leases.

(d)    The only other respects in which the terms of the 1890 Crown Lands Act refer to mining or minerals are:

(i)    one of the permitted purposes for reservation of lands is “for mineral reserves or reserves for gold mining purposes” (s 6(f)(iv));

(ii)    one of the purposes for which land subject to a perpetual lease granted under the 1890 Crown Lands Act may be resumed is “for mining purposes” (s 33);

(iii)    one of the purposes for which possession of land subject to a pastoral lease granted under the 1890 Crown Lands Act may be resumed is “for mineral purposes” (s 63(i));

(iv)    one of the purposes for which special purpose leases could be granted is “for the working of mineral springs” (s 78(vii)); and

(v)    section 90 provides that reserved or dedicated lands, and unalienated land under roads, “shall, for the purpose of mining, as well for gold as for other metals and minerals, and for the purposes of all Acts relating to mining, be deemed to be Crown lands, and may be dealt with accordingly” (emphasis added).

112    The 1890 Crown Lands Act is a statute directed at the grant of interests in land to third parties and the preservation of land for particular purposes. It is not a statute directed at mining generally, and does not provide a regulatory framework for mining, in contrast to legislation such as the 1939 Ordinance. It does not purport to vest title to minerals in the Crown or any person. Nor is the 1890 Crown Lands Act directed at appropriation of land by the Crown generally (as distinct from the resumption of leases granted under its terms).

113    Insofar as mining or minerals arise in the 1890 Crown Lands Act, it is in the context of describing the contours of the leases granted, not in a freestanding sense. Indeed, s 90 specifically contemplates that mining and mineral rights will be dealt with by other Acts that, unlike the 1890 Crown Lands Act, relate to mining. It leaves in place whatever position may obtain under those other Acts as regards mining and mineral rights, while clarifying that reserved and dedicated lands are to be considered “Crown lands” for this purpose. In this respect, “Crown lands” simply means lands that have not been alienated, dedicated or reserved, rather than lands that have been appropriated to the Crown’s absolute beneficial interest or the royal demesne. So much is clear from the definition of “Crown lands” in s 5 of the 1890 Crown Lands Act, which extends to “all lands in the Northern Territory” subject to specific exceptions.

114    The enactment of the 1899 Land Act does not alter this position. It merely replaces the provisions of the 1890 Crown Lands Act relating to pastoral leases with different and more comprehensive provisions. In particular, the 1899 Land Act contains provisions as to the terms and conditions of pastoral leases to be granted under that Act, including:

(a)    section 23 provided that the term of such leases shall not exceed 42 years;

(b)    section 24 provided that such leases “shall contain the covenants, exceptions, reservations, and provisions mentioned in Schedule A to [the 1899 Land Act]”;

(c)    section 25 provided that no such lease “shall authorise the lessee to carry on mining operations of any description whatsoever upon the land leased”; and

(d)    Schedule A relevantly included “an exception or reservation in favour of the Crown, and all persons authorised of all minerals, metals, gems, precious stones, coal, and mineral oils together with all necessary rights of access, search, procuration, and removal, and all incidental rights and powers”.

115    It is noteworthy that s 24 is expressed as a statutory requirement that pastoral leases contain particular terms, rather than a statutory prescription of the legal consequences of such leases. The text on its face is apt to impose a requirement that the instrument of grant contain the specified terms, but not to create any rights that would not follow under the general law from the fact that the terms of the lease are so expressed. Similarly, s 25 is expressed as a negative stipulation on the scope of rights conferred on a lessee by a pastoral lease; it is not expressed as a restriction or extinguishment of any rights the lessee (or another person) had independent of the pastoral lease.

116    Fourthly, it is difficult to see how Attorney-General v Brown can offer assistance in relation to this issue. The fundamental premise of the judgment is that the Crown had full beneficial ownership from the time of settlement (see 316-318). That part of the judgment was overruled in Mabo (No 2). That premise is central to the reasoning in the case: see, for example, 323, lines 8-14.

117    Fifthly, while the passage in Gageler J’s judgment in NSW Aboriginal Land Council is supportive of the Commonwealth’s submissions, the observations were made in a very different context. The point being developed by Gageler J in the relevant passage concerned the existence of non-statutory executive power to create interests in land (see [100], [110]). The passage was not concerned with an issue of extinguishment of native title rights. In particular, his Honour did not express any view on whether the grant of a pastoral lease containing a reservation of minerals would have the effect of extinguishing any native title rights in respect of the minerals.

118    In light of the above, we do not consider it necessary to consider the applicant’s alternative argument that, even if the 1903 Lease reservation created rights in the Crown in respect of minerals, those rights could co-exist with any native title rights in respect of the minerals.

119    For these reasons, we reject the Commonwealth’s contentions in respect of the pastoral lease reservations. It follows that separate question 2(a) is to be answered “No”.

THE MISSION LEASE

120    At [27]-[30] and [83]-[96] above, we have explained some of the background and tenure circumstances surrounding the grant of the Mission Lease on 1 July 1938. Conspicuous amongst those circumstances from the perspective of the applicant’s submissions is the existence of the Arnhem Land Reserve, the character of that reserve demonstrated by the extract at [90] above, and the fact that both tenures extended over the whole of the claim area.

121    In the Gove Land Rights Case at 148, Blackburn J described the arrival of Methodist missionaries in the area:

In November 1935 or thereabouts, the Reverend Wilbur Chaseling and others came ashore at Yirrkala, on the subject land (in about latitude 12 degrees 15 minutes south, longitude 136 degrees 53 minutes east) and founded the Mission which has existed there ever since. They were probably the first white men to establish permanent habitations on the subject land. The Methodist Missionary Society of Australia Trust Association had a lease of almost the whole of the subject land, together with other land, for a term of twenty-one years from 1st July, 1938.

122    At [174]-[178] of the SOC, it is alleged that the grant of the Mission Lease did not confer a right to exclusive possession on the Missionary Society. In other words, although the applicant identifies the grant of the Mission Lease as a compensable act, the effect of the pleading is that it is identified as no more than a potentially compensable act, and the applicant’s primary case is that the Gumatj non-exclusive native title was purportedly extinguished or impaired by later acts; namely either the 1939 Ordinance (at least as to mineral rights) or the grant of the special mineral leases (alleged to have impaired the broader native title rights and interests of the Gumatj).

123    Specifically, at [177]-[178] the applicant alleges:

By the reservation identified at paragraph 175 above and covenants identified at subparagraph 173(c) above, the Mission Lease:

a.    had the effect that no rights to minerals, timber, timber trees, or other trees producing valuable substances were conferred upon the lessee; but

b.    did not vest in the Crown title to such minerals, timber or trees; and

c.    was not inconsistent with, and did not extinguish, the Non-Exclusive Native Title Rights in respect of such minerals, timber or trees.

In the premises of paragraphs 173 to 177 above, the grant of the Mission Lease was not inconsistent with, and did not extinguish, the Non-Exclusive Native Title Rights of the Gumatj and their predecessors in respect of the Claim Area.

124    To recall, the non-exclusive native title rights identified by the applicant are set out at [52(b)] of the SOC:

i.    the right to live on the land, to camp, to erect shelters and other structures in the Claim Area;

ii.    the right to travel over, move about and to have access to the Claim Area;

iii.    the right to hunt, fish and forage on the Claim Area;

iv.    the right to access, take and use for any purpose the resources of the Claim Area (including resources below, on or above the surface of the Claim Area, such as minerals on or below the surface of the Claim Area);

v.    the right to have access to and use the natural water of the Claim Area, including subsurface water and aquifers;

vi.    the right to have access to and use the airspace above the Claim Area;

vii.    the right to engage in cultural and social activities on the Claim Area, including the transmission of cultural knowledge to younger generations; and to:

1.    practice Yolngu law;

2.    conduct, participate and control ceremonies;

3.    conduct, participate in, and control cultural practices relating to birth and death, including burial rights;

4.    hold and conduct meetings, events and conferences;

5.    teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

6.    participate in cultural practices relating to birth and death, including burial rights;

viii.    the right to have access to, maintain and protect sites of significance, and areas or objects of cultural importance, on the Claim Area, and to enforce exclusion areas based on sacred aspects of Yolngu law.

125    Separate question 1(a) raises the issue whether the grant of the Mission Lease purported to extinguish any native title rights in the claim area that then subsisted. As the applicant recognised in his outline at [6.13], and the Commonwealth accepted in oral argument, the consequences of answering this issue affirmatively are that any right to compensation arises (if at all) only in respect of the Mission Lease, such that all other acts pleaded as compensable acts fall away. It is common ground that if the Mission Lease did purport to extinguish all non-exclusive native title in the claim area, then the two constitutional questions arise.

The Commonwealth’s contentions

126    It is common ground that the source of power to grant the Mission Lease was s 14 of the Aboriginals Ordinance 1918. Section 14 has been set out above, but we reproduce it here for ease of reference. It provided:

(1)    The Administrator may grant to any aboriginal institution leases of any Crown Lands for any term not exceeding twenty-one years, at such rent and on such terms as he thinks fit.

(2)    The lease may confer a right of renewal, providing it can be shown to the satisfaction of the Administrator that the lands therein described are required for and applied to the use and entirely for the benefit of aboriginals or half-castes, or both.

127    The term “aboriginal institution” is defined in s 3 of the Aboriginals Ordinance 1918, which we discuss below. The Commonwealth makes the following principal contentions in support of an affirmative answer to separate question 1(a).

128    Taking the breadth of the operation of the Aboriginals Ordinance 1918, together with the absence of any prescribed form or content (other than as to maximum term), the Commonwealth submits the power in s 14 is to be construed as a power to grant a common law lease (also referred to as a general law lease) rather than a statutory lease. Therefore, the conditions of the lease were to be determined by agreement and by application of the common law. This leads, the Commonwealth contends, to the inevitable conclusion that the lease conferred a right to exclusive possession. No other party seriously disputed that if the correct characterisation of the Mission Lease was as a common law lease, then it should be understood to have conferred on the Missionary Society a right of exclusive possession.

129    The Commonwealth draws an analogy with one of the leases considered in Ward; namely a lease granted under s 32 of the Land Act 1933 (WA). At [369]-[370], the plurality said:

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

That being so it is not to the point to inquire, as the majority of the Full Court did, how it would be expected that the lessee would use the land or whether that use could be compatible with the continued exercise of native title rights or interests. The lessee having been granted a right of exclusive possession, the right thus granted was inconsistent with the continued existence of native title rights and interests and, subject to the operation of the RDA and the NTA, those latter rights were extinguished.

130    In the Commonwealth’s submission, despite the use of the phrase “on such terms as he thinks fit” in s 14, the power in s 14 conferred only a power to grant a common law lease and was not to be construed as a power to grant different types of leases.

131    Section 16 of the Aboriginals Ordinance 1918 is said by the Commonwealth to support its submission. The language used in, and the content of, this provision are obnoxious to present values in the Australian community, but the provision must be reproduced as enacted. Section 16 provided:

(1.)    The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any aboriginal reserve or institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.

(2.)    Any aboriginal or half-caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance.

(3.)    Sub-section (1.) of this section shall not apply to any aboriginal or half-caste—

(a)    who is lawfully employed by any person; or

(b)    who is the holder of a permit to be absent from the reserve or aboriginal institution in question; or

(c)    who is a female lawfully married to and residing with a husband who is substantially of European origin or descent; or

(d)    for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made.

132    The Commonwealth submits that s 16 conferred an in-person power on the Chief Protector, directed to the control of individuals. In Kruger at 40 (Brennan CJ), 51-52 (Dawson J) and 133 (Gaudron J), the High Court described how that power was used. For example, in Kruger at 51, Dawson J described the purpose of s 16 as being:

to enable the Chief Protector to place Aboriginals in those reserves or institutions, if necessary against their will, and thereby to restrict their freedom of movement.

133    The Commonwealth submits that the Aboriginal institution where people were “kept” would have been involved in this exercise of control by the Chief Protector, which in turn it contends supports a construction of s 14 as authorising only general law leases so that there could be full control over who could enter and who could leave the Aboriginal institution and the reserve. In other words, an Aboriginal institution in the place of the Missionary Society was authorised by s 16 to conduct the duties of the Chief Protector. Counsel continued:

the fact that contemporary standards would not regard any of this as acceptable or even consistent with what they were declared to be for, we say it cannot cloud the objective construction of the power in section 14 as it was enacted in 1918 and as it was enacted in 1938.

134    On its secondary and alternative contention, if the Mission Lease is properly to be characterised as a statutory lease, the Commonwealth submits the nature and circumstances of its grant, and its express and implied terms and conditions, lead to the conclusion that it was a statutory lease conferring exclusive possession.

135    The absence of a clause in the lease expressly conferring exclusive possession was said to be no barrier to this conclusion. Nor, the Commonwealth contended, were clauses that suggested the Missionary Society could not exclude “any and everyone from the land” (see Western Australia v Brown at [52]). Here the Commonwealth referred in particular to the reservation of a right of entry and inspection to the Crown. The Commonwealth submitted the statement in Western Australia v Brown has not been understood so literally in subsequent authorities, referring in particular to Attorney-General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38; 290 FCR 173 and the reasons of Niall JA in Living and Leisure Australia Ltd v Commissioner of State Revenue (Vic) [2018] VSCA 237; 108 ATR 736.

136    The Commonwealth contended that none of the qualifications and reservations in the Mission Lease were of such a nature and quality to detract from the fundamental proposition that the power in s 14 was plenary in nature and intended to grant a lease with rights of exclusive possession, even if properly construed this was a statutory lease.

137    We note that the Mission Lease was not a “previous exclusive possession act” within the meaning of s 23B of the NTA (the effect of which would be to completely extinguish native title: see ss 23A, 23C), because of the terms of s 23B(9)(a) of the NTA, in that it was granted under legislation providing for the grant of leases for the benefit of Aboriginal peoples, the notion of “benefit” being said to incorporate historic concepts of what might “benefit” Aboriginal people: see [142] below. However, the Commonwealth submits:

that feature does not prevent the lease from extinguishing native title at common law if [the lease] was validly granted and conferred rights that were inconsistent with subsisting native title rights.

(Emphasis added.)

138    The reference to “validity” is, as we understand, a reference to whether s 51(xxxi) of the Constitution renders the grant invalid, there otherwise being no debate about the validity of past acts on the separate questions.

The position of the other parties

139    The Northern Territory made no submissions about the effect of the grant of the Mission Lease. Queensland made no submissions on the Mission Lease issue. Swiss Aluminium supported the position of the Commonwealth.

140    The Rirratjingu parties supported the submissions of the applicant on this matter.

The operation and purposes of the Aboriginals Ordinance 1918

141    As we have noted, the area covered by the Mission Lease as from 1938 (backdated to 1936) was, at the time of grant, already declared as an Aboriginal reserve under the Crown Lands Ordinance 1927 (NT). That declaration had occurred in 1931. This is an important chronological and structural point to note: the Arnhem Land Reserve was in existence for some years prior to the grant of the Mission Lease, and continued in existence after the grant of the lease. The area remained an Aboriginal reserve subject to the terms of the Aboriginals Ordinance 1918. Thus, as the NLC submits, it is critical to assess the effect of the grant of the Mission Lease in the context of the existence of the Arnhem Land Reserve over the same area of land, and to understand the powers and duties conferred by the Aboriginals Ordinance 1918 in respect of Aboriginal reserves. To put the matter another way, the Mission Lease was imposed on land which had, and continued to have, the status of an Aboriginal reserve, and was to be regulated as such under the Aboriginals Ordinance 1918.

142    The Aboriginals Ordinance 1918 is an instrument directed, in the times in which it was enacted, at colonial conceptions about the “welfare” of Aboriginal people. The regime it created is now regarded as oppressive and wholly unacceptable. Nevertheless, in the historical context of 1918, the purpose of the regime has been construed as generally a beneficial but controlling one, with s 16 being construed as extending to non-beneficial purposes: see Kruger at 36-7, Brennan CJ.

143    Its short title was “An Ordinance relating to Aboriginals”. In its terms, it applied across the Northern Territory, and it sought to include in its reach those people that the Ordinance defined as Aboriginal: see s 3. It purported to capture many aspects of the lives of Aboriginal people in the Northern Territory, and by the establishment of an officer described as the “Chief Protector”, to confer wide powers of control and confinement of Aboriginal people on this officer and those whom the Chief Protector appointed pursuant to s 4(2) or to whom powers were delegated under s 4. The duties of the Chief Protector, as set out in s 5(1), were wide, and included a duty:

(e)    to manage and regulate the use of all reserves for aboriginals; and

(f)    to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud.

144    Property (such as blankets and bedding) issued to Aboriginal people was declared to remain the property of the Commonwealth: s 5(2).

145    By s 6, the Chief Protector could enter any premises in order to detain an Aboriginal person covered by the Ordinance. That would, in our view, include premises subject to any lease granted under s 14. Owners and occupiers of such premises had a positive duty to “facilitate” the detention of Aboriginal people on their premises by the Chief Protector: see s 6(2). That would include lessees under s 14 leases, such as the Missionary Society. By s 7, the Chief Protector was made the legal guardian of every Aboriginal child “notwithstanding that the child has a parent or other relative living”, unless the child was already a ward of the State. That would likely include at least some children living in the premises of the Missionary Society after the grant of the Mission Lease.

146    Part III of the Aboriginals Ordinance 1918 is entitled “Reserves and Institutions”. While this Part has been subject to some amendment, the purpose of the Part was to confer powers on the Administrator of the Northern Territory, as opposed to the Chief Protector. The office of the Administrator was established by s 4 of the NT Administration Act. As the name suggests, the role of the Administrator was a broad one, the office being intended to provide for the administration by the Commonwealth of the Northern Territory: see Kruger at 145, Gummow J. The Administrator could appoint a person as the Superintendent of a particular Aboriginal reserve (s 12 of the Aboriginals Ordinance 1918). An office with the same name was capable of being established for any “aboriginal institution” declared under s 13, and any Aboriginal people in that institution (described in the ordinance as “inmates”) were deemed to be “under the control and supervision” of the Superintendent: s 13(6).

147    Section 13 of the Aboriginals Ordinance 1918 is an important provision because it contains the power to establish, by the declaration of the Administrator, an entity as an “aboriginal institution” for the purposes of the Aboriginals Ordinance 1918. As sub-s (1) indicates, such institutions might be a school or an orphanage, or – relevantly – a mission station. Any declared institution is issued a licence: s 13(1). The provision assumes, we find, that a licence could be revoked by the Administrator, and this may affect any lease granted under s 14, because then the institution would no longer be an “aboriginal institution”.

148    Section 14 of the Aboriginals Ordinance 1918 authorises leases of Crown lands only to Aboriginal institutions. It does not authorise leases to any wider group than those institutions declared under s 13. By the link of the statutory concept of “aboriginal institution”, the purposes for the grant of the lease are plainly connected to the declaration under s 13. While s 14 does not compel the grant of a lease to an Aboriginal institution, it contemplates that a lease may be granted. The maximum term is fixed by s 14(1) at 21 years, with renewal being permitted under the terms of a particular lease by s 14(2). The right of renewal that may be inserted into a s 14 lease is not however at large. Rather, the Administrator must be satisfied that:

the lands therein described are required for and applied to the use and entirely for the benefit of aboriginals or half-castes, or both.

149    The NLC submitted, and we accept, that this was a limit on the right to renewal intended to benefit Aboriginal residents. We consider the limit is designed to ensure that any Aboriginal institution is operating in a way consistent with the views of the Administrator (and the Chief Protector) in terms of provision for the welfare of Aboriginal people in their charge. In other words, just as the declaratory power in s 13 is conferred for specific beneficial purposes, so too any lease granted under s 14 is intended to conform to those purposes, which are generally beneficial, but limited in their character.

150    As we have explained above, the Commonwealth contends that s 16 of the Aboriginals Ordinance 1918 supports its characterisation of s 14 as a power to grant a general law lease. Section 16(1) and (2) are extracted above.

151    We do not agree with the Commonwealth’s submission. As some of the judges in Kruger acknowledged, s 16 is a wider and coercive provision, not necessarily restricted to the beneficial purposes found in s 6 – or, we add, ss 13 and 14. Nevertheless, what s 16 indicates is the very limited control exercisable by any lessee over who comes onto the reserve, and therefore onto the leased land, and for what purpose. The decision about who is on the reserve, and who remains there, and how they are to be “kept” there, remains with the Chief Protector. A lessee such as the Missionary Society may be tasked to implement that confinement (through both its s 13 licence and its s 14 lease, we infer), but it carries out the instructions of the Chief Protector in this regard.

152    Section 19 of the Aboriginals Ordinance 1918 imposes a prohibition on all people entering and remaining on a reserve, except those specified in s 19. Those permitted to enter and remain are in limited categories – police and authorised officers, the Administrator, Chief Protector and Protectors, and Aboriginal people. It is a wide-ranging prohibition that also creates an offence for its contravention. The prohibition is effective to exclude all members of the Northern Territory community from a reserve unless they fall within one of the excepted categories. In 1924, s 19A was enacted to create the same prohibition in respect of land included in a lease to an Aboriginal institution, while adding two further excepted categories, including the person in charge of the Aboriginal institution.

153    In other words, in keeping with the (then thought to be) protective and beneficial purposes of creating reserves for Aboriginal people, creating “aboriginal institutions” regulated under the Aboriginals Ordinance 1918 and granting leases to facilitate the functioning of those Aboriginal institutions, the scheme of the Ordinance is to control, on pain of criminal punishment, access to the reserve and leased land. The control is not being exercised by, and is not contemplated to be exercised by, the lessee. The Ordinance itself imposes the controls on access, and does so for protective and beneficial purposes. That was the characterisation of the effect of the Ordinance adopted by Sackville J (Spender and Merkel JJ agreeing) in Director of Fisheries at [41]:

Over time, a series of ordinances has governed access to Aboriginal reserves in the Northern Territory. The earliest was the Aboriginals Ordinance 1918 (NT), the terms of which were discussed in Kruger v Commonwealth (1997) 190 CLR 1, especially at 49-53, per Dawson J; at 74-76, per Toohey J. The Aboriginals Ordinance required the Chief Protector of Aboriginals (later the Director of Welfare and the Director of Local Welfare) “to manage and regulate the use of all reserves for aboriginal people”, s 5(1)(e). See also Welfare Ordinance, s 8(e) and Social Welfare Ordinance 1964 (NT), s 10(b). The Aboriginals Ordinance also made it an offence for an authorised person, other than certain officials, police officers and Aboriginals, to enter or remain on a reserve (defined to mean a reserve declared by the Administrator for the purposes of the Ordinance): see ss 3 and 19. In its original form, the Ordinance said nothing about entry into waters on or near an Aboriginal reserve. The Yirrkala Report, however, noted that (at par 26):

“Having proclaimed the Arnhem Land Reserve, the Government considered that the fact that the Aboriginal Ordinance ... provided that persons should not enter the reserves without permission indicated that it was the intention of the Ordinance to ensure that reserves should be used solely by Aborigines.”

154    Sackville J noted at [43]-[44] that the Ordinances which replaced the Aboriginals Ordinance 1918 (the Welfare Ordinance 1953 (NT) and the Social Welfare Ordinance 1964 (NT)) “maintained the system of restrictions on entry into reserves”.

155    An example of the extent of control exercised by Protectors arises in s 21 of the Aboriginals Ordinance 1918. By that section, holders of miner’s rights are expressly excluded from reserves unless they have the written permission of a Protector. This provision is another illustration of the strict limits imposed on access to reserves and implicitly leases on reserves, even in respect of other holders of proprietary interests. However, the arbiter of those limits is not the lessee, but the Protector.

156    Finally, in terms of understanding the scheme of the Aboriginals Ordinance 1918, and the control of access to reserves and leased land on reserves, it is appropriate to note the scope of the regulation-making power conferred by s 67(1) of the Ordinance. By that section, the Administrator (or, as amended in 1930, the Minister) is empowered to make regulations about, amongst other matters, “the control of aboriginals … residing upon a reserve”, “authorizing entry upon a reserve by specified persons or classes of persons for specified objects” and imposing conditions on the grant of entry.

The NLC’s argument about s 13 of the Aboriginals Ordinance 1918

157    At [44] of its written submissions, the NLC makes a contention not adopted by any other party: namely, that the Missionary Society was not an “aboriginal institution” within the terms of ss 3 and 13 of the Aboriginals Ordinance 1918, and so the Mission Lease “was simply not granted for the purposes of s 13” (at [45]). The NLC points to the absence in the evidence of any written declaration under s 13. As the NLC recognises, this submission is contrary to the submissions of the applicant.

158    The Commonwealth in reply objected to the NLC raising any submissions about the validity of the Mission Lease on the separate questions that were independent of the applicant’s case on the pleadings. We agree with the Commonwealth that it is not open to the NLC to do so. The separate questions proceed on the pleadings of the applicant, and the only invalidity pleaded by the applicant relates to the s 51(xxxi) arguments. In any event, we consider on the evidence before the Court that the Missionary Society was capable of falling within the terms of s 13, and the terms of the Mission Lease, which is before the Court, are sufficient evidence that in fact it did fall within the terms of s 13.

Consideration of the Commonwealth’s principal argument

159    In our opinion, s 14 confers a power on the Administrator to grant a lease which is properly characterised as a statutory lease. The Mission Lease is a statutory lease. We reject the Commonwealth’s principal argument.

160    The Commonwealth’s argument invites an analysis that in substance has been rejected by the majority in Wik and by the majority in Wilson v Anderson [2002] HCA 29; 213 CLR 401. Save for the one isolated finding on which the Commonwealth relies, the approach now urged by the Commonwealth was not the approach adopted in Ward. The Commonwealth’s approach invites a return to a common law analysis dependent on the distinction between a lease and a licence, involving the analysis of a contract between two parties and the determination whether the agreement confers a right of exclusive possession: see Radaich v Smith [1959] HCA 45; 101 CLR 209 at 222, Windeyer J; Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) [1973] HCA 7; 128 CLR 199 at 213, Mason J.

161    At common law, it was from the conclusion that a right of exclusive possession was conferred that courts determined an instrument to be a lease, and therefore a proprietary interest, rather than a licence, and therefore a personal interest. The conclusion that a contract or instrument was properly characterised as a lease flowed from a conclusion that the rights conferred included the right of exclusive possession. In that sense, the method at common law ended with a conclusion that an instrument was a “lease”, whereas as the plurality explain in Wilson, for the purposes of the NTA, the use of the word “lease” in historic statutory grants over land in Australia may say little about the nature of the rights conferred and whether they included exclusive possession.

162    In Australia since the mid-nineteenth century, interests in land were granted by the Crown through statute. In Wik at 108-112, Toohey J as a member of the majority traced the historical development of Crown grants, in particular pastoral leases, with a particular focus on how these interests came to be granted by statute rather than under prerogative power as was originally the case. Those passages repay careful reading and include aspects of Crown grants which travel beyond pastoral leases. From within these passages, a few of Toohey J’s findings should be extracted here. First, the overall summary by Dr TP Fry in his work ‘Land Tenures in Australian Law’ (1947) 3 Res Judicatae 158 at 160-161 of the move to giving the Governor of New South Wales statutory power to grant interests in land, which Toohey J extracts at 110:

It brought to an end the policy of concentration of settlement, which was to have been achieved by the Crown refusing to alienate the fee simple of, or to lease, any land outside ‘the nineteen counties’ around Sydney or outside small areas around Hobart, Melbourne and Brisbane. It also introduced a system of Crown leasehold tenures which led to the whole of Australia being transformed in subsequent decades into a patchwork quilt of freeholdings, Crown leaseholdings, and Crown ‘reserves’.

163    After referring to the grazing licence in issue in R v Toohey; ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 and quoting a passage from Mason J (as his Honour then was), part of which we extract below, Toohey J says at 112:

These comments apply with particular force to Queensland where, at least at the time Dr Fry was writing, there were approximately seventy different kinds of Crown leasehold and Crown perpetual leasehold tenures. To approach the matter by reference to legislation is not to turn one’s back on centuries of history nor is it to impugn basic principles of property law. Rather, it is to recognise historical development, the changes in law over centuries and the need for property law to accommodate the very different situation in this country.

Pastoral leases lie in the grant of the Crown. They are the creature of statute and the rights and obligations that accompany them derive from statute. In light of this, it is pertinent to turn to the legislation pursuant to which the leases the subject of these appeals were granted.

164    In terms of the history of how the power to grant interests in land became statutory in nature, there is no basis to find that the situation in the Northern Territory was any different in substance to that discussed in Wik. While the Northern Territory was under the control of South Australia, there is no suggestion in any of the authorities that any different approach was taken to the grant of leasehold interests in land, or that it was done other than by statute. For example, the legislation granting the pastoral leases in issue in this proceeding was South Australian legislation, although operating in the Northern Territory. From the time of the NT Acceptance Act, the legislative authority for the Northern Territory was the Governor-General (or Governor-General in Council), whose powers derived from s 13 of the NT Administration Act, which contains the Ordinance-making power: see the Gove Land Rights Case at 284-285. Thus, from 1910 there remained a statutory basis for any grants of leasehold interest.

165    The argument made by the Commonwealth here is very much like the unsuccessful argument made by Queensland in Wik. In Wik, Queensland contended that the pastoral leases in question all conferred a right of exclusive possession because that was the character of a lease at common law, even if statute was the source of power to grant the interest. The majority in Wik (Toohey, Gaudron, Gummow and Kirby JJ) rejected this argument. We have already extracted the relevant passages from the reasons of Toohey J.

166    Gaudron J discusses the very early use of the prerogative to grant interests in land at 139-140, describing (at 140) that the:

prerogative power to dispose of land gave way to a power conferred by statute with the passage of the Sale of Waste Lands Act 1842 (Imp). Section 2 of that Act provided that the waste lands of the Crown in the Australian colonies were not to be alienated by the Crown either in fee simple or for any less estate or interest otherwise than by sale conducted in accordance with the regulations made under the Act.

(Footnotes omitted.)

167    Her Honour then describes the movement away from alienation of land by grant of fee simple to alienation by way of leasehold interests, and thereafter discusses the way in which statutes authorising the grant of various kinds of leases emerged in New South Wales and Queensland, noting (at 142) that both the New South Wales Constitution Act 1855 (Imp) and Queensland Constitution Act 1867 (Imp) provided for the vesting of the “entire management and control of the waste lands belonging to the Crown … in the Legislature of the … colony”. Gaudron J then proceeds to discuss the various iterations of statutory powers to grant leasehold interests over the years, and concludes at 149:

It is clear that pastoral leases are not the creations of the common law. Rather, they derive from specific provision in the Order-in Council of 9 March 1847 issued pursuant to the Sale of Waste Lands Act Amendment Act 1846 (Imp) and, so far as is presently relevant, later became the subject of legislation in New South Wales and Queensland. That they are now and have for very many years been entirely anchored in statute law appears from the cases which have considered the legal character of holdings under legislation of the Australian States and, earlier, the Australian Colonies authorising the alienation of Crown Lands. Thus, for example, it was said of such holdings in O’Keefe v Williams that “[t]he mutual rights and obligations of the Crown and the subject depend, of course, upon the terms of the Statute under which they arise”.

(Footnotes omitted.)

168    Taking this approach did not however prevent her Honour from referring to the character of common law leases. This is instructive when we come to consider the passage in Ward upon which the Commonwealth relies as the sole example supporting its primary contention. Having considered the particular leases in detail, and the statutory provisions necessary to determine – as a matter of construction – what kind of interest was conferred, her Honour said (at 150-151):

There are two features which point in favour of the view that the Mitchellton Pastoral Leases were true leases in the traditional common law sense and, thus, conferred rights of exclusive possession. The first is the language of the Act and of the Leases. In this regard, the use of the words “demise”, “lease” and derivatives of the word “lease” in the statutory provisions concerned with pastoral leases and in the Leases themselves, are to be noted. …

The second feature which points in favour of the view that pastoral leases under the 1910 Act were true leases is that the 1910 Act clearly distinguished between leases and licenses, thereby suggesting that it was maintaining the traditional common law distinction between a lease, which confers a right of exclusive possession, and a license, which does not.

169    Her Honour is not finding that the pastoral lease is a common law lease; she is treating it as a statutory lease but with characteristics that might suggest that features of common law leases (including exclusive possession) were being attributed to pastoral leases. Ultimately, over the next few pages of her Honour’s reasons, Gaudron J concludes that despite these two features, exclusive possession was not conferred. Her Honour reached that conclusion principally by reference to the authorising statute itself and the rights it conferred on others: see at 154. Her Honour concluded at 155, in a passage we also consider has relevance to the present question:

As Deane J and I explained in Mabo [No 2] the rule to which reference has just been made is not a special rule with respect to native title; it is simply a manifestation of the general and well settled rule of statutory construction which requires that “clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation”. Whether the rule be stated generally or by reference to native title rights, it dictates the conclusion that, whilst the grant of a pastoral lease under the 1910 Act certainly conferred the right to occupy land for pastoral purposes and s 204 conferred the right to bring action for the removal of persons in unlawful occupation, a pastoral lease did not operate to extinguish or expropriate native title rights, as would have been the case, had it conferred a right of exclusive possession.

(Footnotes omitted.)

170    Gummow J also noted (at 168) that:

Prerogative powers were supplanted in Queensland by statute as a result of constitutional development in the second half of the nineteenth century. As will appear in the course of these reasons, the issues on these appeals turn upon the proper construction of the Land Act 1910 (Q) (the 1910 Act) and the Land Act 1962 (Q) (the 1962 Act), and upon the terms of the grants of pastoral leases thereunder.

171    From there on, his Honour’s starting point was clearly expressed:

I begin with the proposition that for a statute such as the 1910 Act or the 1962 Act to impair or extinguish existing native title or to authorise the taking of steps which have that effect, it is necessary to show, at least, the intention, “manifested clearly and plainly”, to achieve that result. That is how the point was expressed in the joint judgment of six members of the Court in the Native Title Act Case.

(Footnotes omitted.)

172    After explaining that “intention” does not mean subjective intention, Gummow J turned, as Toohey and Gaudron JJ had done, to discuss the historical development of the alienation of Crown land in Australia, and the policy battle between the Imperial authorities and the local authorities over the control of land in Australia, culminating in the position that (at 173-174):

The result was to withdraw from the Crown, whether represented by the Imperial authorities or by the Executive Government of Queensland, significant elements of the prerogative. The management and control of waste lands in Queensland was vested in the legislature and any authority of the Crown in that respect had to be derived from statute.

There followed the enactment in Queensland and elsewhere of statutes designed to provide for conditions unknown in England and to meet local wants in a fashion unprovided for in England.

(Footnotes omitted.)

173    Gummow J continued (at 174-175):

Then there was the creation by statute of what Griffith CJ called “new forms of tenure”. This legislative activity illustrated the general propositions that statute may create interests in property which are unknown to the common law and that “there is nothing higher among legal rights than a right created by statute”. To these new forms of tenure the terms “lease” and “licence” applied in a new and generic sense. The legislation teemed with “proverbial incongruities” and Higgins J used the term “quasi-Crown lands” to identify those areas as to which there had been conferred a tenure short of a fee simple. Of the operation of that system in New South Wales in 1905, that is to say shortly before the enactment of the 1910 statute in Queensland, A C Millard and G W Millard wrote:

“The whole of the numerous and elaborate provisions of the Acts for the alienation and occupation of Crown lands are examples of the legislation which has been necessary to meet the peculiar conditions and wants of the colony. Nothing corresponding to the body of laws thereby created is found in English law, there being nothing in England analogous to the vast area of unoccupied lands in this colony, of which the Crown is the nominal, and the public the real owner, the settlement of which is necessary to the welfare and progress of the country.”

(Footnotes omitted.)

174    While Gummow J was here referring to the way statutory interests such as pastoral leases came to be developed, his Honour’s observations apply also to the circumstances of the Mission Lease. Tragically, another “peculiar condition and want” of the Australian colony was its subjugation of Aboriginal people. The systems designed to achieve that subjugation and control were enacted through statute and legislative instruments, as the Aboriginals Ordinance 1918 demonstrates. The Aboriginal reserve system was a key “peculiar” feature of this scheme. So were the creation and maintenance of Christian missions, and the way those missions were used to confine and control Aboriginal people. The lease presently under consideration was created as part of that statutory system.

175    Kirby J made similar observations about the distinct nature of interests in land granted by statute to suit Australian conditions and government policies, also relying on Dr Fry’s work: see at 243. His Honour asked rhetorically at 244:

Why, in such circumstances, it should be imputed to the Queensland Parliament in 1910 and 1962 that it had imported all of the incidents of the English common law of leases is not immediately plain. Pastoral leases covered huge areas as extensive as many a county in England and bigger than some nations. In these circumstances, it seems distinctly unlikely that there can be attributed to the Queensland Parliament an implied purpose of granting a legal right of exclusive possession to the pastoralist (including as against Aboriginals known to exist on the land and unmolested in their continuing use of it) where that Parliament held back from expressly so providing.

176    Later, his Honour observed (at 244-245):

But if the Crown’s power to make such a grant, properly analysed, exists simply because Parliament has said that it does, that is sufficient. Importing into the Land Acts notions of the common law apt for tenurial holdings under the Crown in medieval England, and attributing them to the Crown itself, piles fiction upon fiction. As it is not expressed in the legislation, I would not introduce it.

… As to the argument that the very word “lease” and the other words familiar to leasehold interests (“demise”, “rent”, “assigns”) are used in the Land Acts, I am quite unconvinced that they are sufficient to import all of the features of a common law lease.

177    The following passage from Kirby J’s reasons (at 249) could also be applied to the Mission Lease:

The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilise the land in accordance with their native title, as they did. In that sense, the nature of the interests conferred by a pastoral lease granted under the successive Land Acts, was not, of its legal character, inconsistent with native title rights.

178    So too, the exercise by the Missionary Society, as an Aboriginal institution, of its leasehold interest to the fullest extent would involve no more than the running of the Mission. The rights conferred to enable that to occur are not of a nature that brings to an end the non-exclusive rights of the native title holders in the claim area.

179    In summary then, the majority in Wik look at the very particular conditions that had arisen in Australia after colonisation, with a focus on the undisputed move to requiring grants of Crown land to be made pursuant to statute, together with the fact those statutory grants were made for the purposes of creating interests, and permitting uses, quite different from those in England.

180    In contrast, the minority in Wik took an approach which is compatible with the approach the Commonwealth now urges on this Court. Brennan CJ (with whom Dawson and McHugh JJ agreed) held (at 75, referring to Radaich v Smith) that:

a true lease confers on the lessee a right to exclusive possession, albeit that right might be subject to particular reservations or exceptions.

(Footnotes omitted.)

181    At 76, Brennan CJ set some store by the language used in the instruments under consideration in Wik – that they were called a “lease”, and that they included phrases such as “demise for a term of years”, an obligation to pay rent and “surrender” and “forfeiture” of the lease. His Honour concluded (at 76, referring to his earlier decision in American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; 147 CLR 677 and other authorities):

This is the language of lease.

182    By that conclusion, Brennan CJ meant, we infer, a grant that confers exclusive possession. Brennan CJ also used (at 80) the distinction in the Land Act 1910 (Qld) between provisions dealing with licences and provisions dealing with leases:

If the 1910 Act intended the lease to confer no more than the rights expressed by the Act, there would have been little point in distinguishing between leases and licences which share many statutory features.

183    The minority approach in Wik was not revived in later cases. In Wilson, Gleeson CJ reiterated the majority approach in Wik at [12]:

What is relevant is that, objectively considered, there was an intention to create an estate that was inconsistent in its incidents with continuing native title rights and interests. The same applies to the creation of a leasehold estate which confers a right of exclusive possession in the lessee. That statement may appear tautologous. But the decision in Wik shows that “lease”, like “intention”, can be a slippery word. In a straightforward case, such as a residential tenancy, it may be easy to conclude that a lessee was intended to have a right of exclusive possession. Such a conclusion would then lead directly to the assignment of the case to category (ii) of Brennan CJ’s three categories.

184    At [14], the Chief Justice also clarified the correct approach to “intention”:

A majority of the Court in Wik accepted that if, as a matter of construction, the leases there in question conferred a right of exclusive possession, native title was extinguished. Partly because of the [size] and location of the subject land (one holding was 1,119 square miles in area; another was 535 square miles), the consequences for Aboriginal people were regarded by some members of the Court as having a bearing upon the question of construction. But, in so far as there was a question of intention to be decided, the question was whether the intention was that the lessees should have exclusive possession of the land.

(Emphasis added, footnotes omitted.)

185    This passage is instructive in understanding how the Commonwealth’s principal contention is inconsistent with the majority approach in Wik as reiterated by Gleeson CJ in Wilson. In form, the Commonwealth’s contention invites the Court to construe s 14. But it invites the Court to ask not whether the intention of s 14 was to grant exclusive possession through a lease, but whether the intention of s 14 was to grant a common law lease, and therefore, to grant exclusive possession.

186    That is to depart from the analysis preferred by most of the authorities, for the reasons explained and which are peculiar to Australian land law and colonial circumstances. The Commonwealth’s approach puts the cart (the ultimate character of the grant as a common law lease) before the horse (whether exclusive possession was intended to be conferred).

187    Wik was of course a claim outside the NTA, having been commenced before the NTA was enacted. In Wilson at [58]-[60], this time through the lens of the NTA but nevertheless consistently with Wik, the plurality explained how the definition of “lease” in s 242 of the NTA was to be understood:

It will be apparent that the expression “lease” as defined in s 242 is wide enough to encompass for the purposes of the NTA statutory interests which may not necessarily amount to a lease as understood by the common law. The Lease at issue in this case satisfies the above definition. It was granted under s 23(1)(a) of the Western Lands Act. This section was substituted for the original s 23 by s 8 of the Western Lands (Amendment) Act 1934 (NSW) (the 1934 Act). The new s 23(1)(a) provided that it was lawful for the Minister to grant “leases” of Crown lands as “leases in perpetuity”. Paragraph (c) of s 242(1) of the NTA therefore is satisfied.

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.

It is possible that, as an exclusive pastoral lease or as a lease conferring a right of exclusive possession over particular land, the Lease, being a “lease in perpetuity” under the Western Lands Act, satisfies either or both of pars (iv) and (viii) of s 23B(2)(c) of the NTA; par (iv) engages the definition of “exclusive pastoral lease” in s 248A. It is in this way that the issue for determination arises — whether on grant in 1955 the Lease conferred a right of exclusive possession upon the grantee thereof. That issue turns upon the meaning of the statutory expression “lease in perpetuity” and requires an examination of the nature of the perpetual holdings created under the Western Lands Act and the Consolidation Act.

(Emphasis added, footnotes omitted.)

188    The NTA definition of “lease” in s 242 may not be directly engaged here because of the exclusionary effect of s 23B(9)(a) of the NTA. However, the point the plurality emphasises in these paragraphs remains relevant; namely that where the power to grant the lease in question is sourced to a statute, the nature of the interest granted will turn on the proper construction of the power and the particular instrument comprising the exercise of the power. Whether or not it is called a “lease” will signify very little. This was the point made by the majority Justices in Wik in the passages to which we have referred. Subject to the one example on which the Commonwealth relies, this was also the approach taken in Ward.

189    Section 23(1) of the Western Lands Act 1901 (NSW), in issue in Wilson, was expressed as follows (see Wilson at [65]):

(1)    It shall be lawful for the Minister to grant leases of Crown lands —

(a)    as leases in perpetuity; or

(b)    for any term expiring not later than the thirtieth day of June, one thousand nine hundred and seventy-three.

Any lease so granted shall except as otherwise provided in this Act be subject to the general provisions of this Act.

190    The Court in Wilson held this provision conferred a power to grant a statutory lease. The statute did not closely prescribe terms for the leases, but made the lease generally subject to the empowering Act. This empowering provision is not materially different from s 14 of the Aboriginals Ordinance 1918. Nor in any other native title case that the Commonwealth could identify, aside from the one example in Ward, has it been suggested that a statute conferring power to grant a lease of Crown lands should be construed as a power to grant a common law lease with the inevitable consequence that the lease confers exclusive possession on the lessee.

191    All of the leases in issue in Ohlsen, for example, were agreed to be statutory leases, even though some of the statutory powers authorising the leases bore some resemblance to s 14 because they were powers to grant leases for particular purposes. For example, in Ohlsen at [29], the Full Court described the seventh category of lease in issue in that appeal, special leases for a term, and said:

Section 90 of that [Crown Lands] 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.

192    In Ward, some of the extinguishment issues related to pastoral and mining leases, but others related to three other kinds of lease: a conditional purchase lease under s 62 of the Land Act 1898 (WA), special leases under Pt VII of the Land Act 1933 (WA) and leases of reserved land under s 32 of the Land Act 1933 (WA). The plurality reasons are those of Gleeson CJ, Gaudron, Gummow and Hayne JJ, with Kirby J concurring.

193    It was a lease in the third category, the Ivanhoe lease, where the finding was made on which the Commonwealth relied: see [129] above. Other leases, also granted pursuant to powers in the Land Act 1933 (WA) or its predecessor, were characterised as statutory leases. Some of them were found as a matter of fact to confer exclusive possession; some of them were not.

194    The Court’s reasoning on the Ivanhoe lease was relatively brief. The fact that the statutory power in question authorised the grant of a lease “for any purpose” the Governor thought fit was considered important: see [366]. The lease itself specified the purpose of grazing (see [368]), but it was the statutory power to grant for any purpose which seems to have been critical to the Court’s reasoning. It was this feature, in our opinion, which led the Court to characterise the lease as one “determined by the nature of the agreement reached and the grant made” (at [369]). In other words, the statutory power was general (for any purpose), and the parties had, by their contract in the lease itself, agreed on a lease for the purpose of grazing. All the key terms – such as it being an annual lease, renewable, and conditions about third party access – were contained in the agreement between the parties and were not imposed by, or referable to, the Land Act 1933 (WA). That is the central aspect of the Court’s reasoning.

195    Because the Court’s reasons do not engage in any comparison between the various leases in issue in Ward, it is not possible to know how many, if any, of the other leases in question were granted under statutory powers where many of the terms and conditions of a particular lease were left to the agreement of the parties. The fact that the parties’ agreement contained a considerable number of restrictions on the rights of the lessee (see [368]) was no longer of concern to the Court, because the Court gave overwhelming priority to the fact the terms were agreed between the parties, disconnected (it seems) from the statute. Having made that finding – that what was granted was a common law lease – an inevitable conclusion then followed that the lessee had been granted exclusive possession, and so native title had been extinguished. Thus, all the features which otherwise needed to be weighed up in considering whether exclusive possession was granted (and which the Court weighed up in relation to many of the other leases in Ward, just as the Court in Wik had done and the Court in Wilson would subsequently do) did not need to be considered. The considerable list of restrictions at [368] was, the Court implicitly held, imposed only as a result of the parties’ agreement and could not alter the character of the interest granted, being exclusive possession because it was a common law lease.

196    The Ivanhoe lease is the only example the Commonwealth could find to illustrate a finding of this kind having been previously made, in respect of a historical lease granted under a statutory power.

197    In our view, the single finding in Ward does not bind us because it is a finding or conclusion about a particular lease.

198    Further, the finding is distinguishable because there is no analogy between the facts of the Ivanhoe lease and the facts of the Mission Lease. On the High Court’s findings, the Ivanhoe lease was granted pursuant to a bare and general power in the Land Act 1933 (WA), devoid of a specific purpose, with no other terms or constraints in the empowering statute about the nature of the leasehold interests to be granted – instead with all those terms being the subject of agreement between the parties.

199    The facts of and surrounding the Mission Lease are quite different.

200    The power in s 14 was entirely tied to the purposes of the Aboriginals Ordinance 1918, and furthering the purposes and functions of the Arnhem Land Reserve as an Aboriginal reserve. The power in s 14 is not at large as the power in the Land Act 1933 (WA) was. The parties to the Mission Lease did not, independently of the power conferred in s 14, agree on a particular use for the land. The use of the land was confined by the Missionary Society’s position as an Aboriginal institution, operating under the Aboriginals Ordinance 1918, on an Aboriginal reserve.

201    The Mission Lease was expressed as being granted “under and subject to” the Aboriginals Ordinance 1918 and “the Regulations for the time being in force thereunder”. We recall here our findings above about the subject matter and breadth of the regulation-making power, and how it extended to additional controls on access to reserves and therefore, through the lease conditions, to the potential for further controls on access to the land, once leased. We also recall that the duties of the Chief Protector included the management and regulation of the use of all reserves for Aboriginal people, which again, by reason of the subjection of the lease to the Aboriginals Ordinance 1918, included the leased land. Management and regulation of use clearly incorporates controls on access to the reserve, and therefore to the leased land.

202    The other features of the legislative scheme in the Aboriginals Ordinance 1918 which inform the nature of the power in s 14 and distinguish it from the Ivanhoe lease in Ward, as we have explained above, are:

(a)    the control retained by the Chief Protector over children in an Aboriginal institution and on an Aboriginal reserve: see ss 6, 7, 15 and 16, all of which incorporate access without the need for any permission to the premises of an Aboriginal institution, including the land on which it is located; and

(b)    the creation of restricted categories of people who could access an Aboriginal reserve, and therefore the leased land as well: see ss 19 and 20. There is no suggestion in the Mission Lease that the grant of the lease rendered these provisions inapplicable. To the contrary, the terms of the lease expressly contemplate their application.

203    In other words, the Aboriginals Ordinance 1918 itself contemplates very little control of access to land residing with a lessee under s 14.

204    The power in s 14 is entirely purposive, and facultative of the purposes of the Aboriginals Ordinance 1918. The power of the Administrator to grant a lease is itself restricted: it may only be granted to an Aboriginal institution, itself a defined term again limited by the purposes of the Aboriginals Ordinance 1918. Such an institution requires a licence issued under s 13, and as we observed earlier, if that licence was cancelled, then the resumption or forfeiture powers in the lease could be exercised to bring the lease to an end. The duration of the lease is prescribed by s 14. While it is true that rental and other terms are left to the discretion of the Administrator, we do not consider that in itself suggests that the nature of the power in s 14 is intended to authorise the Administrator contracting as they saw fit to confer exclusive possession on third parties occupying an Aboriginal reserve. All express and implied indications are to the contrary. Further, it is commonplace in many statutory leases of the time, as the leases in Wik, Ward, Wilson and Ohlsen reveal, for some mechanical terms of a lease, such as rental, to remain un-prescribed by the empowering legislation, without this depriving the lease of its character as a statutory lease.

205    The ability to include a right of renewal as a term of any lease (see s 14(2)) confirms the statute intends to control the grant of the lease, and that the lease is a creature of statute. Any right of renewal is limited by the statute to circumstances where the Administrator is satisfied that the leased land is “required for” the benefit of Aboriginal people, and will be used only for that purpose. This is avowedly the statute controlling not only what can be done on the land, but also how the lessee may exercise rights over the land, because activities under the lease are directly controlled not only by the terms of the Aboriginals Ordinance 1918 but also by the ongoing decision-making of the Chief Protector.

206    For these reasons, the proper construction of s 14 does not suggest that the power conferred is one to grant a common law lease conferring exclusive possession on the grantee, let alone that this is the only power conferred.

207    The power in s 14 is to be properly construed as a power to grant a statutory lease.

Consideration of the Commonwealth’s alternative argument

208    The next question is: when this power was exercised to grant the Mission Lease, what was the nature of the leasehold interest conferred on the Missionary Society? In considering this question, there is some overlap with the matters we have already discussed above. In our opinion, the Mission Lease did not confer a right of exclusive possession on the Missionary Society, and the grant of a lease of this kind was not intended to be inconsistent with the continuation of native title in the co-extensive area of the Arnhem Land Reserve, the leased land and the claim area.

209    In Congoo at [168], Gageler J emphasised the importance of correctly characterising the statutory purpose of the power conferred (here, to grant a lease; in Congoo, to order the taking of possession of land by the Commonwealth):

The right of the Commonwealth or power of the Minister to exclude persons who had pre-existing rights to be on the land, on that alternative interpretation of reg 54, would still not have been to exclude anyone from any or all of the land for any purpose. It would at most have been a limited purposive right or power to exclude, relevantly indistinguishable from those conferred on the lessees of the mining leases whose “exclusive possession” for mining purposes was held not to extinguish native title rights in Western Australia v Ward. That holding 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.

(Footnotes omitted.)

210    That analysis is applicable here. The purpose of the power in s 14 is (relevantly to the area in issue) to aid and facilitate the maintenance of the Arnhem Land Reserve and the confinement and control of Aboriginal people on it, ostensibly for their benefit and in pursuit of their welfare as the government of the time saw those matters. The grant of the lease may have affected the way native title holders could exercise their native title rights on the reserve – as, no doubt, did other aspects of the regimes under the Aboriginals Ordinance 1918. But the grant of the lease said nothing about the continued existence of the claimants’ non-exclusive native title.

211    Thus, a lease granted under s 14 is a:

creature of statute forming part of a special statutory regime governing Crown land.

212    That description comes from the judgment of Mason J in Meneling Station at 344. It was cited with approval in Wilson at [109]. The “special statutory regime” under consideration in Meneling Station was the system of grazing licences in the Northern Territory, and in Wilson it was the regime providing for the pastoral settlement of land in western New South Wales so as to encourage settlers “by giving them an asset more likely to attract the provision and continuation of finance” (Wilson at [110]).

213    In the present case, the “special statutory regime” is a regime enacted for the confinement and control of Aboriginal people on reserves created for that purpose, ostensibly for their welfare and protection.

214    We have explained immediately above why the proper construction of s 14 is that it authorises the grant of a statutory lease, for limited purposes and subject to significant control by the Chief Protector of access to the leased land (as part of an Aboriginal reserve), especially in terms of entry under the authority of the Chief Protector for any purposes under the Aboriginals Ordinance 1918, extending to the taking of physical control of individual Aboriginal people. Only Aboriginal people, and non-Aboriginal people who were expressly authorised, were able to be on the reserve, and therefore on the leased land. If there was a right to exclude trespassers at all, it came from the Ordinance, not the lease, including the creation of criminal offences to which we have referred earlier. There was certainly no “right to exclude as trespassers persons exercising rights attached to their subsisting native title”: see Gummow J in Wik at 201. Indeed, native title holders were likely to be amongst the persons living on the reserve.

215    The lessee did not therefore control at all who could enter and remain on, and leave, the leased land. The Chief Protector controlled who could come onto the land and who could not. The lease was intended to facilitate the Aboriginal reserve system and the exercise of powers by the Chief Protector; that is, the lease was intended to further the public purposes of the Aboriginals Ordinance 1918. A right of exclusive possession in the Missionary Society would be antithetical to the statutory purposes of the Aboriginal reserve system, including the Arnhem Land Reserve. In no sense did the Mission Lease confer rights on the Missionary Society to “exclude any and everyone from access to the land for any reason or no reason” (Western Australia v Brown at [36]), even if this proposition is not understood literally, and is read in the qualified way explained by Niall JA in Living and Leisure at [92]-[93], and by the Full Court in Ohlsen at [149]-[152].

216    On this alternative analysis however, it is also necessary to examine the terms of the Mission Lease itself, to determine the nature of the rights conferred. The Mission Lease is annexed to the SOC. Relevantly:

(a)    The Mission Lease itself expresses its purpose in the confined way of “Mission work”, which is consistent with the Missionary Society having a specific role to assist the Chief Protector in the administration of the Aboriginals Ordinance 1918. We reject the Commonwealth’s expansive interpretation of this term in the Lease. As the applicant submits, the Commonwealth’s expansive interpretation gives insufficient weight to the fact that the use of the land is expressly restricted.

(b)    The Mission Lease was granted over a very large area: 175 square miles. The large size of the leased area may be an indicator that non-exclusive rights are being granted: see Wik at 154 (Gaudron J), 232 (Kirby J).

(c)    The Mission Lease was not assignable – see Covenant 7 in the Lease. In Wik, Gummow J saw this as a factor tending against exclusive possession: Wik at 196. See also Meneling Station at 342-3, Mason J.

(d)    The Mission Lease was liable to forfeiture, but also to resumption on 12 months’ notice without compensation, resumption being akin to the “cancellation” term that Gummow J in Wik saw as tending against exclusive possession: see Wik at 196. See also Ward at [170], [251] regarding the “precarious” nature of the interest in issue.

(e)    The conditions imposed in the Mission Lease included strict control over the use of the land, and as we have explained above, a covenant to observe and comply with any regulations made under the Aboriginals Ordinance 1918. The interests of the lessee were in this way subjugated to the control of the Chief Protector and the Administrator.

(f)    Any “profits derived from the land covered by the Lease” were not able to be applied by the lessee as it saw fit. Rather, the Missionary Society covenanted to expend profits only in direct connection with the Mission Station, unless the Administrator approved expenditure for another purpose. Gummow J in Wik at 176 considered the power to use profits or produce derived from the land to be indicative of a common law lease.

(g)    The reservation for timber and trees was expressly agreed by the Missionary Society to include a “power to authorize any persons to enter upon the land and to cut or fell any timber … and to do all things necessary or convenient for these purposes”. This kind of reservation was relied on by Gaudron J in Wik at 154 as indicating no grant of exclusive possession.

(h)    There were express rights of entry and inspection reserved, although this was not necessary given the terms of the Aboriginals Ordinance 1918 which allowed for essentially free access by the Chief Protector and their officers.

(i)    No rental was payable. In our opinion that clause is significant; considered in context it reflects the fact that the Missionary Society was assisting the Chief Protector, performing a public role as part of what was then seen as a scheme for the protection, welfare and control of Aboriginal people.

217    While the grant of a lease to the Missionary Society no doubt gave it some security of tenure so that the Missionary Society could undertake its Methodist missionary work with Aboriginal people confined to the Mission with some certainty into the future, free perhaps of the threat that another denominational organisation might seek to intrude and work with the Chief Protector, the Mission Lease was expressly circumscribed so as to ensure the Missionary Society operated subject to the control of the Administrator and the Chief Protector in all aspects of its work. The Lease was no more than facultative to achieve the objects of the systems of confinement, control and “protection” imposed on Aboriginal people.

218    Even if the Mission Lease did not confer exclusive possession on the Missionary Society, it is also necessary to ask, consistently with the authorities, whether the rights it conferred were nevertheless inconsistent with any of the claimants’ claimed non-exclusive native title rights.

219    In the section of these reasons dealing with the pastoral lease reservations, we have referred to the authorities concerning the test for inconsistency of rights. We adopt the same approach here. The comparison to be undertaken is between the rights granted by the Mission Lease and the non-exclusive native title rights set out in the SOC and extracted at [124] above.

220    Given all of the features we have set out above, the answer is that the rights conferred by the Mission Lease were not inconsistent with the claimants’ non-exclusive native title rights. The land of the Mission Lease was intended at all times to remain as land to be used by and for the benefit of Aboriginal people. If the lease did anything, it compelled the lessee to preserve the land for the use of Aboriginal people, and to allow Aboriginal people to be the principal occupants of it. This feature, together with the other features of both the Aboriginals Ordinance 1918, s 14 and the Mission Lease itself that we have discussed above, means the rights granted under the Mission Lease could be described as positively consistent with continued recognition of non-exclusive native title over the land. This characterisation is consistent, as the applicant submits, with the overarching purpose of the creation of Aboriginal reserves, including the Arnhem Land Reserve, under s 102 of the Crown Lands Ordinance 1927 (NT), “for the use and benefit of the aboriginal native inhabitants of North Australia”.

221    The applicant also submitted (at [172]-[173] of his written submissions):

Some insight as to the character of reservation “for the use and benefit of Aboriginal inhabitants” in the Crown Lands Ordinance 1927 can be gleaned from s 21(e) of that Ordinance, which provided that in any lease under the Ordinance:

[A] reservation in favour of aboriginal inhabitants of North Australia shall be read as a reservation giving to all aboriginal inhabitants of North Australia and their descendants full and free right of ingress, egress and regress into, upon and over the leased land and every part thereof and in and to the springs and natural surface water thereon, and to make and erect thereon such wurlies and other dwellings as those aboriginal inhabitants have before the commencement of the lease been accustomed to make and erect, and to take and use for food, birds and [animals] ferae naturae in such manner as they would have been entitled to do if the lease had not been made.

It is accepted that s 21(e) may not directly apply to the Mission Lease, as that lease was granted under the Aboriginals Ordinance rather than the Crown Lands Ordinance. However, the content of s 21(e) provides an indication of what is contemplated by “reservation in favour of aboriginal inhabitants” in the Crown Lands Ordinance, which bears on the significance of reservation under s 102 (and the matters identified in paragraph 171 above).

222    We accept that submission. We add that this context also illustrates why it is unlikely in the extreme that the proper construction of s 14 of the Aboriginals Ordinance 1918 is that it authorised the grant of a common law lease.

223    If by the Mission Lease the Missionary Society could exclude some persons from the Arnhem Land Reserve (being co-extensive with the leased land), it was in our opinion able to do so only in a limited sense to further the limited rights of use granted to it under the Lease, in the same way the majority in Ward described the limited purposes of a mining lease: see Ward at [308]. See also Western Australia v Brown at [57], and Ohlsen at [144]. However, given the terms of the Aboriginals Ordinance 1918, we doubt the Missionary Society even had this level of legal control conferred on it, irrespective of what might have been asserted in practice as a feature of Mission life.

224    For these reasons, we reject the Commonwealth’s alternative argument in relation to the Mission Lease.

Conclusion in relation to the Mission Lease

225    We therefore reject the Commonwealth’s contention, reflected in separate question 1(a), that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted.

226    Given that the propositions in paragraphs (a) and (b) of separate question 1 are cumulative, it follows from the above that separate question 1 is to be answered “No” and that it is not necessary to determine the Commonwealth’s two constitutional arguments for the purposes of answering separate question 1. Nevertheless, we consider those arguments in the following sections of these reasons for the sake of completeness (in relation to separate question 1) and because it is necessary to determine those arguments for the purposes of answering separate questions 2, 3 and 4.

THE WURRIDJAL ARGUMENT

Overview

227    In this section of these reasons, we deal with the Commonwealth’s first constitutional argument, namely that the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution. This issue is raised by paragraphs (1)(b)(i), (2)(c), (3)(b) and (4)(b)(i) of the separate questions.

228    The Commonwealth’s primary contention on this issue is that Teori Tau continues to bind lower courts unless and until the High Court overrules it. The Commonwealth submits that the observations by various members of the High Court about Teori Tau in Wurridjal were not part of the ratio decidendi, with the result that it was not overruled by that decision. Accordingly, the Commonwealth submits that, applying Teori Tau, this Court is bound to hold that s 51(xxxi) does not apply to the NT Administration Act, or the ordinances made under it, and thus cannot invalidate them or the compensable acts the subject of the separate questions.

229    In response, the applicant, the NLC parties and the Rirratjingu parties contend that Wurridjal did overrule Teori Tau. Accordingly, they contend, the just terms requirement in s 51(xxxi) does apply to laws enacted pursuant to s 122.

230    Although the Northern Territory and Swiss Aluminium support the Commonwealth on other issues raised by the separate questions, they do not support the Commonwealth on this issue, and agree with the applicant’s position. Further, although Queensland supports the Commonwealth on other issues, it does not take a position on this issue.

231    It may be observed at the outset that the Commonwealth’s argument is somewhat surprising in light of the fact that the headnote for Wurridjal in the Commonwealth Law Reports, being an authorised report, states:

Teori Tau v The Commonwealth (1969) 119 CLR 564, overruled.

232    However, be that as it may, it is necessary for this Court to determine now whether or not Wurridjal overruled Teori Tau. This involves a consideration of the doctrine of precedent, and the application of that doctrine to the judgments in those cases.

233    For the reasons that follow, we have concluded that Wurridjal did in fact overrule Teori Tau.

Background to the issue

The key constitutional provisions

234    Section 51(xxxi) of the Constitution provides that the Commonwealth Parliament has power to make laws with respect to:

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

235    Section 122 provides: