CATCHWORDS

Aboriginals - Land rights - At common law - Whether common law native title extinguished by pastoral leases - Effect of Queensland legislation under which leases granted considered.

Aboriginals - Land rights - Recognition in accordance with Native Title Act 1993 - Native Title determination application - Requirement of satisfaction of presidential member of National Native Title Tribunal "that a prima facie claim can be made out" considered - Who may be heard by presidential member - Decision of presidential member not to accept native title determination application not an exercise of judicial power of the Commonwealth.

Native Title Act 1993 (Cth)

Pastoral Leases Act 1869 (Qld)

Pastoral Leases Extension Act 1890 (Qld)

Land Act 1897 (Qld)

Land Act 1902 (Qld)

 

 

 

 

NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION for and on behalf of the WAANYI PEOPLE v. THE STATE OF QUEENSLAND and CRA EXPLORATION PTY LTD

QG34 of 1995

Jenkinson, Lee and Hill JJ.

Melbourne

1 November, 1995

IN THE FEDERAL COURT OF AUSTRALIA    )

QUEENSLAND DISTRICT REGISTRY         )     No. QG34 of 1995

GENERAL DIVISION                     )

                         RE:      NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION for and on behalf of the WAANYI PEOPLE

                                       Applicants

                                  THE STATE OF QUEENSLAND

                                      First Respondent

                                  CENTURY ZINC LIMITED and          CRA EXPLORATION PTY LTD

 

                                      Second Respondents

 

 

 

CORAM:     Jenkinson, Lee and Hill JJ.

PLACE:     Melbourne

DATE:      1 November, 1995

                      MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The respondents' costs of the appeal (including costs reserved) be paid by the applicants.

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

IN THE FEDERAL COURT OF AUSTRALIA    )

QUEENSLAND DISTRICT REGISTRY         )    No. QG34 of 1995

GENERAL DIVISION                     )

                         RE:      NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION for and on behalf of the WAANYI PEOPLE

                                      Applicants

                                  THE STATE OF QUEENSLAND

                                      First Respondent

                                  CENTURY ZINC LIMITED and CRA EXPLORATION PTY LTD

                                      Second Respondents

CORAM:      Jenkinson, Lee and Hill JJ.

PLACE:      Melbourne

DATE:       1 November, 1995

                    REASONS FOR JUDGMENT      

                             

JENKINSON J.

          Appeal from a decision of a presidential member of the National Native Title Tribunal to not accept the applicants' native title determination application.

          Division 1 of Part 3 of the Native Title Act 1993 ordains procedures for the consideration by the National Native Title Tribunal ("Native Title Tribunal") of an application for a determination of native title in relation to an area for which there is no approved determination of native title.  Section 225 of the Native Title Act 1993 provides:

"225.  A `determination of native title' is a determination of the following:

(a)    whether native title exists in relation to a particular area of land or waters:

(b)    if it exists:

   (i)who holds it; and

   (ii)   whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

   (iii)  those native title rights and interests that the maker of the determination considers to be of importance; and

   (iv)   in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."

No such a determination has been made in relation to the area of 247 hectares of land in north-western Queensland to which the application relates.  In Division 1 s.61 specifies the persons who may make such an application and requires that the application be in the prescribed form and "contain such information in relation to the matters sought to be determined as is prescribed", and be given to the Registrar of the Tribunal.  The next four sections provide:

"62.(1)   A native title determination application by a person or persons claiming to hold the native title in relation to an area must:

     (a)  be accompanied by an affidavit sworn by the applicant that the applicant:

     (i)  believes that native title has not been extinguished in relation to any part of the area; and

     (ii)believes that none of the area is covered by an entry in the National Native Title Register; and

     (iii)     believes that all of the statements made in the application are true; and

    (b)   contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders; and

    (c)   contain a description of the area over which the native title is claimed; and

    (d)   state the name and address of the person who is to be taken to be the claimant.

    (2)   Any application under section 61 must be accompanied by any prescribed documents and any prescribed fee.

63. (1)   If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion:

    (a)   that the application is frivolous or vexatious; or

    (b)   that prima facie the claim cannot be made out.

    (2)   If the Registrar is of the opinion mentioned in paragraph (1)(a) or (b), the Registrar must refer the application to a presidential member.

    (3)   If the presidential member is of the same opinion, the presidential member must:

    (a)   advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and

    (b)   if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and

    (c)   if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application.

    (4)   If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application.

64.(1)   If the Registrar considers that the requirements of section 62 are not complied with in relation to the application, the Registrar must refer the application to a presidential member.

    (2)   If the presidential member also considers that the requirements are not complied with, the presidential member must:

    (a)   advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the requirements are complied with; and

    (b)   if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and

    (c)   if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application.

    (3)   If the presidential member considers the requirements are complied with, the presidential member must direct the registrar to accept the application.

65.(1)   The Registrar may, with the approval of the President, exercise any of the powers in relation to an application that the Tribunal may exercise under sections 155 to 159.

    (2)   A presidential member may exercise any of the powers in relation to an application that the Tribunal may exercise under sections
155 to 159."

The powers conferred by ss. 155 to 159 include powers to take evidence and summon a person to give evidence and produce documents, to copy documents produced and to direct that evidence given, or the contents of documents produced, be not disclosed.

          In conformity with what appears in the second and third paragraphs of the reasons for judgment of Mason C.J. and McHugh J. in Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1 at 15-16, the Registrar, and later the president of the Tribunal, Justice French, considered the question whether the native title asserted by the applicants had been extinguished.  Each in turn concluded that it had and on that ground formed the opinion specified in paragraph 63(1)(b).  Having given the applicants the advice and the opportunity specified in paragraph 63(3)(a), Justice French was not satisfied "that a prima facie claim can be made out", and in compliance with paragraph 63(3)(c) he directed the Registrar not to accept the application.  Sub-section 169(2) provides:

"If a person has given an application to the Registrar under section 61, the person may appeal to the Court, on a question of fact or law, from a decision of a presidential member to not accept the application."

The last three sub-sections of s.169 provide:

"(5)The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

(6)  The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(7)  Without limiting subsection (6), the orders that may be made by the Court on an appeal include:

(a)  an order affirming or setting aside the decision or determination of the Tribunal; or

(b)  an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

          Leave was sought by the applicants to add a ground of appeal that the decision of Justice French was an exercise of judicial power by him when not constituting a federal court, contrary to s.71 of the Constitution.  The respondents and intervening federal polities had ample notice of the application for leave and submitted full argument on the ground in anticipation of the grant of leave.  I would allow the ground to be added.

          Provisions of Division 1 which follow s.66 make it clear that where, as in this case, a native title determination application is made by a person or persons claiming to hold the native title, other persons become parties to the application only after it has been accepted.  For reasons which will later appear Justice French entertained submissions on behalf of the respondents to this appeal and received evidence adduced on their behalf in the course, and for the purpose, of carrying out the functions conferred on him by sub-section 63(3).  By that means he was enabled to find that the claimed land had been in the nineteenth century and again early in the twentieth century the subject of pastoral leases by the Crown in right of the State of Queensland.  For reasons which he gave, Justice French concluded that the claimed native title had been extinguished.  That was the reason for his failing of satisfaction that a prima facie claim can be made out and for making his decision not to accept the application.  His Honour was of the opinion that "[t]he presidential member in deciding whether a prima facie claim can be made out can form a concluded view on a question of law which, if decided one way, would be fatal to the application", and "may have regard to evidence of extinguishing events in determining whether a prima facie claim can be made out" : Re Waanyi People's Application (1994) 129 A.L.R. 100 at 116.  He had earlier (ibid, at 115) observed:

"A question of law may arise which, if decided one way, would be fatal to the application in a court of law.  In my opinion, where there is such a question of law the presidential member should form a view on it for the purpose of deciding whether a prima facie claim can be made out.  It is not sufficient to conclude that the question is arguable and that on that basis a prima facie claim exists.  If there is an issue of law which, in the view of the presidential member, is fatal to the application, that should be resolved at the threshold."

That understanding of what was required of a presidential member in order to perform the function conferred by sub-section 63(3) was said by counsel for the applicants to be incorrect.  But, if it was correct, the alternative submission was that the sub-section purported to confer judicial power.

          In R. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. 1970 123 C.L.R. 361 at 411-412 Walsh J. observed:

"It is clear, in my opinion, that the conferring upon the Tribunal of authority to find facts and to make decisions of law is not itself conclusive of the existence in it of judicial power.  Where such an authority is given, a decision as to the nature of the power so conferred depends upon an evaluation of all those features of it, including the purpose which it is intended to serve, which provide indications for or against its judicial character.  One feature which I regard as providing a strong indication against attributing to the adjudication made in the first stage of the proceedings the character of an exercise of judicial power is that it is an adjudication upon a preliminary question upon which depends the making of a further investigation which is not itself of a judicial character."

Windeyer J. said in the same case (at 399) -

"The Tribunal is empowered to determine whether or not `an examinable agreement' exists or has existed or `an examinable practice' has been or is proposed to be engaged in.  If it is satisfied of these matters, which may be called conditions of its jurisdiction, it must then decide whether the restrictions produced by the agreement are, or the practice is, `contrary to
the public interest'.  A decision on the jurisdictional fact is a preliminary to a determination of whether the agreement or practice is contrary to the public interest.  I do not think that the consideration of the preliminary question and adjudication upon it is an exercise of the judicial power.  In my opinion, deciding whether or not a fact exists on which jurisdiction depends is not an exercise of the judicial power unless the jurisdiction dependent upon the decision is itself part of the judicial power, not an administrative jurisdiction.  In other words, an incidental and preliminary inquiry takes its character, for relevant purposes, from the character of the jurisdiction of which it is a phase."

The functions of the Native Title Tribunal in relation to applications that may be made under Division 1 of Part 3 of the Native Title Act 1993, after acceptance of such an application, are plainly of an administrative, not a judicial, character.  The satisfaction of a presidential member in accordance with paragraph 63(3)(b), in a case of an application referred to him by the Registrar, may also be called a condition of the jurisdiction to perform those functions.  However, the performance of those functions may not result in the making of a determination by the Tribunal.  Division 1 of Part 3 concludes thus:

"74.  If an application is accepted under section 63 and the Tribunal does not make a determination under section 70, 71 or 73, the Registrar must lodge the application to the Federal Court for decision."

Jurisdiction is conferred in Part 4 on this court to hear and determine applications lodged with it under s.74 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

          It was submitted by counsel for the applicants that the decision of Justice French not to accept the application precluded invocation of the jurisdiction of this court conferred by the Native Title Act 1993 to determine the application.  Counsel for the Attorney-General of the Commonwealth and for the Attorney-General of Queensland, as well as counsel for the respondents, submitted that the decision did not preclude the making of another application for determination of native title to the same land by the same applicants, either under Division 1 of Part 3 of the Native Title Act 1993 or under any Queensland legislation which may hereafter afford protection of that title.  The submission was made, on behalf of those interveners, upon the authority of Midland Metals Overseas Ltd. v. Comptroller-General of Customs (1991) 30 F.C.R. 87 and the cases there cited, that an administrative decision gives rise to no issue estoppel and that a decision such as this, by which the right to prosecute a claim is denied in limine, gives rise to no cause of action estoppel.

          In my opinion no issue estoppel or cause of action estoppel was created by the decision or the direction of Justice French or by reason of his failing of satisfaction that a prima facie claim can be made out or by his conclusion that native title to the land had been extinguished.  The only parties to the application were the applicants.  The other persons who were heard by Justice French were heard, and evidence adduced by them was received, because he chose to take that course in order that he might the more effectively perform the function conferred on him by sub-section 63(3).  Sections 66, 67 and 68 are so drawn that a person other than an applicant can become a party in relation to a native title determination application only after the application has been accepted under s.63.  At times in his reasons for decision Justice French refers to "the parties", as I would suppose for ease of reference.  His Honour could not in my opinion make persons other than the applicants parties.  Both issue estoppel and cause of action estoppel arise only between parties in controversy : Taylor v. Ansett Transport Industries Ltd. 1987) 18 F.C.R. 342 and cases there cited. 

          It was submitted by counsel for the applicants that the decision of Justice French, based as it was on his conclusion that native title to the land had been extinguished, involved a determination operating in rem, that native title to the land did not exist.  Support for the submission was said to be found in the reasoning of Drummond J. in The Wik Peoples v. Queensland (1994) 49 F.C.R. 1.  I cannot accept the submission.  There is nothing in s.63 to suggest that authority is being conferred by the Parliament on the Registrar or a presidential member to determine native title.  Everything in Division 1 of Part 3 indicates that s.63 confers power merely to determine whether a particular application for such a determination should, having regard to what appears from an examination of the documents given to the Registrar in compliance with ss. 61 and 62 and from any other material the applicant submits or the presidential member otherwise obtains, be accepted or not.  A decision not to accept the application determines nothing more than that the particular written application will not be accepted.  The circumstance that in making that decision a presidential member has concluded that the title sought to be determined has been extinguished does not in my opinion have any other legal consequence in relation to the existence or non-existence of the native title asserted by the applicants.  If another application for the same native title determination were made immediately after that decision had been given effect, and if the material were the same, the Registrar or a presidential member (whether Justice French or another) each would have to consider again the questions of law arising in the performance of the function conferred by s.63.  If the materials were different they would have to be considered again and any question of law arising upon them considered.

          It is true that, until some further event occurs, Justice French's decision operates to deny to the applicants the rights which the Native Title Act 1993 confers on a person, claiming to hold the native title to an area, whose application for native title determination has been accepted.  Control of admission to the enjoyment of those rights, by reference to a determination whether a claim to native title presented by the claimant has a specified probability of success, is not necessarily the exercise of judicial power : see Re Dingjan 1995) 128 A.L.R. 81 at 86, 92, 93, 103, 106-108; Precision Data Holdings Ltd. v. Wills 1991) 173 C.L.R. 167; The Queen v. Quinn; Ex parte Consolidated Food Corporation (1977) 138 C.L.R. 1.

          In the latter case the prosecutor contended that s.23(1) of the Trade Marks Act 1955 purported to confer judicial power on the Registrar of Trade Marks, who was by that sub-section empowered, on application by a person aggrieved, to order the removal of a trade mark from the Register, in respect of any of the goods in respect of which it was registered, on several grounds.  The grounds specified the occurrence, before the making of the application, of several specified circumstances.  It was submitted (138 C.L.R. at 2-3) for the prosecutor that the combination of ten considerations led to the conclusion that the Registrar would be exercising judicial power : "(1) a dispute between parties ... (2) production of a final order; (3) the trappings of litigation such as the taking of evidence which may be on oath, the compulsory production of documents, and the requirement for reasons to be given for the decision ... (4) the exercise of a discretion; (5) the decision's not being subject to collateral attack ... (6) the fact that ... the Registrar has to consider complicated facts and apply complex legal criteria rather than what he considers to be correct policy ... (7) the fact that the order may involve the deprivation of property rights; (8) the consideration that rights are determined by the application of legal criteria to facts as ascertained; (9) the consideration that the destruction and withdrawal of industrial property rights historically has been treated as an exercise of judicial power ... and (10) the fact that power that is vested in the Registrar is also vested in the prescribed court which applies the same criteria".  The order nisi for prohibition was discharged.  Four members of the High Court agreed in the reasons for judgment of Jacobs J., which included the following observations (138 C.L.R. at 10-12) -

"However, it is said that, even though a determination that a trade mark should be registered may be an exercise of administrative power, a determination that a trade mark should cease to be registered is necessarily an exercise of judicial power.  The argument in favour of a view that an exercise of judicial power is involved must depend upon the existence in the legislation of provision for rights in the proprietor springing from registration (Pt VII - Registration and Effect of Registration) and disabilities in other persons as a result of the registration (Pt XIII - Protection of Trade Marks).  That, it is said, means that a determination to rectify the register affects existing rights and is a determination of those rights.

There is no doubt that the determination of these matters can be the subject matter of judicial power if Parliament chooses to make them so (Farbenfabriken Bayer A.G. v. Bayer Pharma Pty. Ltd. (1959) 101 C.L.R. 652), as it has done in the nomination of the Appeal Tribunal.  But are they necessarily the subject of judicial power, so that they fall within the first class of case in the classification made by Isaacs J.?  I do not think so.  The rights involved spring from the statute which governs their creation and continuance.  The Registrar is given the administration of the statute.  It is his administrative duty to keep the register
in the state which the legislature has prescribed.  In so doing he must make decisions not only upon what should or should not be placed but also upon what should remain on the register in accordance with the statutory prescriptions.

The applicant has been able to point to many features of the Registrar's function under s.23 which are commonly features of an exercise of judicial power and submits that the cumulative force of those features compels a conclusion that the power is judicial.  Since the power, when exercised on an appeal (so called) under s.23(7), is a judicial power, it is to be expected that there will be an accumulation of features which can often be taken to indicate that a power is a judicial power.  But the question is whether the features are inconsistent with the power, when it is vested in an administrative officer, being an administrative power; and the answer is that none of the features is exclusively related to judicial power and they are therefore not inconsistent with administrative power.

The application to the Registrar under s.23(1) is initiated by a person `aggrieved' and therefore there will be a dispute on the hearing of the application between that person and the registered proprietor; but many administrative decisions are made after an opportunity is given to opposed interests to appear and be heard.  Town planning decisions provide one example, industrial awards another.  Next, it is said that the Registrar's order, which he himself carries into effect by alteration of the register, is a final order; but here again many administrative decisions are final in the sense that they have a binding force.  Such a feature is not conclusive.  And the same may be said of all the other features relied on - the so-called `trappings' of curial decision-making, the nature of the discretion or duty imposed by s.23 on the Registrar, the complexity of legal and factual questions which may arise, the degree to which rights defined by the statute are affected by the Registrar's decision.  They may be suggestive of, but they are not exclusive to, judicial power.

Then it is said that historically an order for the removal of a trade mark from the register has been regarded as the exercise of judicial power, and for this reason must continue to be so regarded.

...............................................

The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive.  But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom.  The governance of a trial for the determination of criminal guilt is the classic example.  But there are a multitude of such instances.  One of them has been held to be the determination of a status of a person whereby the right to recover money owing by that person is barred: Reg. v. Davison 1954) 90 C.L.R. 353.

On the other hand the course of legislation in comparatively recent times does not, in itself, provide a foundation for the historical approach.  If the legislation requires the exercise of a power to determine questions the determination of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have upon the legal rights rather than from the history of similar legislation reposing the function in a judicial tribunal.

The right to have a trade mark remain upon a register is not such a right as I have described.  It is true that certain consequential rights flow from registration by virtue of the provisions of Pts VII and XIII, but they are of a very limited kind.  Registration is not itself conclusive of the right to the exclusive use of a trade mark.  The original registration must have been a valid registration before the right to exclusive use can be maintained because the register may be rectified by a court at any time (s.22); and the primary test of validity is distinctiveness (ss. 24-26).  After seven years the registration is conclusive of the validity of the registration, except in certain limited circumstances (s.61); but such a provision is in substance a provision for limitation of action challenging the validity
of the initial registration, particularly the distinctiveness of the mark at the time of first registration.  It does not alter the fact that registration is not itself conclusive of validity nor does registration, or lack of registration, itself affect the right of a person in trade or business to distinguish his goods from those of another or others by the use of a particular mark and to prevent others from using such a distinctive mark in their trade or business.  The law relating to passing off is not substantively altered.  In these circumstances the historical argument has not the necessary foundation."

          The basic legal rights identified in Mabo v. Queensland [No. 2] (1992) 175 C.L.R. 1 can hardly be said to have been traditionally so regarded, but the judgments in that case show that they should have been.  The effect which the exercise of the decision-making function conferred by s.63(3) of the Native Title Act 1993 on the basic legal rights comprehended in the nomenclature of the Act as "native title" and as "native title rights and interests" (see s.223) will be - if that exercise is adverse to the application - serious but impermanent.  All processes made available by the Act, to applicants whose applications have been accepted, for securing recognition and protection of those rights are unavailable to applicants whose applications have been not accepted.  (Not all the benefits provided by the Act to holders of native title are limited to those in respect of whose native title an application has been accepted : see the definition of "native title holder" in s.224 and, for example, ss. 17, 20, 21, 23 (esp. sub-secs. (6) and (7)) 24, 210, 211.  In Western Australia v. The Commonwealth 1995 69 A.L.J.R. 309 at 333 the joint judgment of six judges of the High Court observed:

"The first of the enacted objects of the Native Title Act is `to provide for the recognition and protection of native title'.  s.3(a).  This object is achieved by a statutory declaration s.11(1) that native title -

     `is not able to be extinguished contrary to this Act.'

The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title.  By that prima facie sterilisation, s.11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code.  Conformity with the code is essential to the effective extinguishment or impairment of native title.  The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title."

I do not take that passage to indicate that the Act prescribes an exclusive code for the determination of the existence of native title in relation to a particular area of land or waters or of the matters set out in paragraph 225(b) of the Act.  Paragraph 193(1)(c), by which the Registrar is required to cause the National Native Title Registrar to contain

"information in relation to .... determinations of, or in relation to, native title in decisions of courts or tribunals" other than the National Native Title Tribunal, the Federal Court and the High Court, implies recognition that the common law rights to which the expression "native title" is applied may be asserted, and that their existence may be determined, and that the rights may be enforced, in and by courts of the States and Territories.

          An applicant for a native title determination whose application has been not accepted under s.63(3) may invoke the jurisdiction of a court having jurisdiction in respect of the area of land or waters to which the claimed native title relates, and in the exercise of that jurisdiction the existence or non-existence of the claimed title can be determined conclusively as between the parties to the proceeding, in my opinion.  And such a court will be able to vindicate the rights determined to exist by the exercise of its powers.  A further application under Division 1 of Part 3 of the Native Title Act 1993 may be given to the Registrar at any time after the first application has been not accepted by the Registrar.  Thereupon, according to the reasoning of Carr J. in Djaigween v. Douglas (1994) 48 F.C.R. 535, jurisdiction is conferred by s.213(2) of the Native Title Act 1993 to preserve the subject matter of the application pending the determination of the application.

          The denial by Justice French's decision of access to the processes ordained by the Native Title Act 1993 for the protection of native title is in my opinion no more than temporary.  The denial of access to the processes ordained by the Act for determination of native title does not impede resort to judicial determination of that title in State and Territory courts.  The effects of the decision are not in my opinion such as to justify the conclusion that it was a purported exercise of the judicial power of the Commonwealth.

          Reliance was placed upon reasoning of members of the High Court in Brandy v. Human Rights and Equal Opportunity Commission (1995) 69 A.L.J.R. 191.  It was submitted that the decision of Justice French was enforceable, and had been enforced, by the Registrar's non-acceptance of the application, which was in compliance with the direction which paragraph 63(3)(c) required Justice French to give.  The respondents and interveners distinguished that reasoning by the submission that the "enforcement" in this case was not the enforcement contemplated by the members of the High Court, which it was submitted was enforcement by way of execution.  But the latter submission does not accord, in my opinion, with a passage in the reasons for judgment of Mason C.J., Brennan and Toohey J.J. (69 A.L.J.R. at 198):

"If the respondent to a determination does not apply for a review within 28 days of the registration of the determination, then the determination is enforceable at the expiration

of that time unless leave to apply is granted after that time by the Federal Court.  And, if the Commission finds the complaint substantiated and yet declares under s.25Z(1)(b)(vii) that it would in inappropriate for any further action to be taken in the matter, the determination is binding and enforceable upon registration in the Federal Court because a successful complainant is given no right to invoke the review procedure."

In that passage enforceability seems to be conceived as comprehending the effect which a judicial determination has otherwise than in its execution.

          Counsel for the applicant submitted - and the reasoning in the judgment of Deane, Dawson, Gaudron and McHugh J.J. in Brandy's Case confirms - that the Human Rights and Equal Opportunity Commission's determination, whether an act had been done that was a contravention of a specified statutory provision, would not have constituted an exercise of judicial power if the provisions concerning registration and enforcement in the Federal Court had not been enacted, because it was provided by sub-section 25Z(2) of the Racial Discrimination Act 1975 (Cth) that such a determination "is not binding or conclusive between any of the parties to the determination".  In the Native Title Act 1993 s.165 provides that "[a] determination of the Tribunal, other than a determination in relation to a right to negotiate application, is not binding or conclusive".  What a presidential member does in performance of the functions conferred on him by s.63(3) is not within the meaning of the word "determination" in s.165, counsel for the applicants submitted.  I accept the submission.  The Act draws a distinction between "decision" and "determination" which is carefully observed : ss. 179(1)(b)(i), 144, 169(1), 169(2), 169(3) and 69 provide examples.  But it does not in my opinion follow that the decision of a presidential member under s.63(3) is an exercise of judicial power.  The dissimilarities between the nature and effects of the Commission's determination and the nature and effects of the presidential decision are in my opinion such that Brandy's Case does not advance the applicant's argument.

          I share the opinion expressed by Justice French (129 A.L.R. at 114) that "[t]he content of the requirement to show to a presidential member that a prima facie claim can be made out depends upon the purpose of the function conferred by s.63 upon presidential members.  That function, in my opinion, is to ensure that the application which goes forward has substance and that the time and resources of the tribunal and other parties is not taken up in processing an application which could not succeed in court."  I do not consider that the interpretation of the words "satisfy the presidential member that .... a prima facie claim can be made out" ought to be influenced by analogy derived from use of the expression "prima facie" in curial exposition or other legislative contexts.  The purpose of the function conferred by s.63 upon presidential members having been identified, the content of the requirement expressed by those words is in my opinion recognisable as satisfaction that if the application is accepted evidentiary material will thereafter be adduced which material will upon first impression justify a determination that the claimed native title exists in whole or in part.  But if after such enquiry as the presidential member thinks fit to undertake there is lacking a basis for satisfaction that evidentiary material of a certain description, which material is essential to such a favourable determination, will be available to be adduced, can there be satisfaction that a prima facie claim can be made out?  In this case the essential missing evidence was evidence that a lease granted under the Pastoral Leases Act 1869 (Qld.) had also been the subject of an instrument of lease issued under s.25 of that Act and that the instrument contained a reservation "to the Aboriginal Inhabitants .... [of] such free access to the said Run or parcel of Land hereby demised, or any part thereof, and to the trees and water thereon, as will enable them to procure the animals, birds, fish, and other food on which they subsist."  If such an instrument had issued, Justice French was prepared to accept that the reservation would have been valid.  I agree.  And in my opinion such a lease as the instrument evidenced would not have wholly extinguished the native title claimed. : see Re Waanyi People's Native Title Application (1995) 129 A.L.R. 118 at 158-161.  Extensive enquiry, the result of which was placed before Justice French, tended to show that no such an instrument had issued.  But it did not appear that all sources of relevant evidentiary material had been investigated.  The possibility existed that evidence of the issue of such an instrument would be discovered.

          If and when an application for determination of native title, after acceptance, is lodged to this court pursuant to s.74 of the Native Title Act 1993, the processes of discovery from parties and persons not parties become available to the applicants.  Exhaustive exercise of the powers conferred on a presidential member by s.65(2) of the Act to summon persons to give evidence and to produce documents might in many cases frustrate the purpose of the function conferred on him by s.63.  But enquiries about events and circumstances more than 100 years past, which consideration of native title determination applications will commonly entail, will often require prolonged and difficult search for evidentiary material.  Where a presidential member is satisfied that an event may have happened or a circumstance may have existed, and that, if the event happened or the circumstance existed, there is a real possibility that evidence will at length be found of the event or of the circumstance, he may in my opinion be satisfied that a prima facie claim can be made out.  He is in my opinion required by s.63(3) to prophesy whether, in the future and after acceptance of the application, evidentiary material will be adduced which upon first impression will justify a favourable determination of the claim.  But in my opinion the words "can be made out" should be understood as comprehending a case where the applicants' ability to make out the claim depends on their finding evidence, of an event or circumstance which the presidential member is satisfied may have happened or existed, but for the discovery of which an insufficient opportunity has been available at the time when he exercises the function conferred by s.63(3).  Such a construction of those words is in my opinion required in order that the purpose of s.63 may be achieved without too great a risk of erroneous rejection of an application.

          The circumstances were, as I find, such as to require satisfaction that an instrument of lease containing the stated reservation may have issued, and that an insufficient opportunity for discovery of evidence that such a lease did issue had been available at the time when direction was given to the Registrar not to accept the application.  There was a real possibility that, if such an instrument had issued, evidence of that circumstance would, after acceptance of the application, become available.  Justice French's conclusion ought in my opinion to have been that the grant of the lease and the lack of available evidence of the issue of the instrument did not cause him to fail of satisfaction that a prima facie claim can be made out.

          Concerning the question whether the applicants' claimed native title has been extinguished by the lease created under s.8 of the Lands Act 1902 (Qld.), I agree in the conclusions, and the reasons for those conclusions, which Hill J. expresses.

          It was a ground of appeal that Justice French had erred in law in inviting the State of Queensland, Century Zinc Ltd. and CRA Exploration Pty. Ltd. to make submissions to him concerning his performance of the function conferred on him by s.63(3).  I have already stated my opinion that persons other than the applicants could not be parties to the application or to any proceeding concerning the application until it had been accepted by the Registrar.  But there was no error of law or mistaken exercise of discretion involved in the course Justice French took of inviting the participation of those three entities in his consideration of the application, in my opinion.  The course he took was within the ambit of his administrative discretion to inform himself as he thought fit.

          The applicants contended that on its proper construction the expression "of the same opinion" in s.63(3) requires not only identity of opinion that prima facie the claim cannot be made out (or that the application is frivolous or vexatious), but identity of the ground of the opinion, and that in consequence Justice French erred in considering whether there was available evidentiary material showing continuity in the connection, with the land the subject of the claim, of the applicants and their predecessors, because the only ground of the Registrar's opinion had been extinguishment of title.  A literal reading of s.63 affords no support for that contention.  If the construction for which the applicants contend were adopted, applications which ought not to be accepted might sometimes be accepted because the presidential member was precluded from acting upon his perception of a fatal defect in a claim which had not been perceived by the Registrar.  Such a construction ought not in my opinion to be adopted.

          Justice French's opinion was that, in considering whether he is satisfied that a prima facie claim can be made out, a presidential member does not achieve that satisfaction if, in respect of a question of law which, if decided one way, would be fatal to the application, he concludes that a decision the other way is arguably correct.  The applicants' submission was that such a conclusion does constitute the statutorily required satisfaction.

          In my opinion Justice French's opinion is correct.  The phrase "prima facie case" in a legal context, as in s.70(1)(a) of the Native Title Act 1993, for example, has reference only to evidence considered in relation to given law, and no account can be taken of any doubt a court or tribunal may entertain as to the correctness of its perception of what that law is when it considers whether such a case has been made out.  It might be said that the use by the legislature of the expression "prima facie claim", in contrast to the expression "prima facie case", invites an evaluation, rather than a determination, of questions of law in order to make a prophetic judgment as to the probability that an answer favourable to the applicant will be later given.  If such a construction were adopted, that prophetic function might fall to be exercised successively by a presidential member of the Tribunal, who must be a judge of this court or a person who has been a justice of the High Court of Australia or a judge of another federal court or of the Supreme Court of a State or Territory, and on appeal by three judges of this court.  That result would not husband the time or resources of this court, or of the National Native Title Tribunal.  There will be cases, of which this case provides an example, where decision of an arguable question of law should wait upon ascertainment of a fact after the application has been accepted.  But where the evidentiary material before the presidential member enables him to be satisfied that prima facie evidence of the fact will be available, the expression "prima facie claim" should in my opinion be understood as requiring determination by the presidential member of that question of law, if a determination of the question adversely to the applicant will be fatal to the application.  The presidential member's satisfaction or lack of satisfaction that a prima facie claim can be made out will thus depend on the determination of that question.

          I would dismiss the appeal and order that the respondents' costs of the appeal be paid by the applicants.

                             I certify that this and the 27 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.  

                            

                              

                                             Associate

                             Dated:  1 November, 1995

IN THE FEDERAL COURT)                                     

OF AUSTRALIA         )

QUEENSLAND           )

DISTRICT REGISTRY    )

GENERAL DIVISION     )    NO.  QG34 of 1995

 

                          On appeal from a decision of the President of the National Native Title Tribunal

 

B E T W E E N:            NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION for and on behalf of the WAANYI PEOPLE

 

                               Applicants

 

                          and

 

                          THE STATE OF QUEENSLAND

 

                               First Respondent

 

                          CENTURY ZINC LIMITED and CRA EXPLORATION PTY LTD

 

                               Second Respondents

 

 

CORAM:    JENKINSON, LEE, HILL JJ.

DATE :    1 NOVEMBER, 1995

PLACE:    MELBOURNE  

 

                    REASONS FOR JUDGMENT

LEE J.   

          I have had the opportunity of reading the separate reasons prepared by Jenkinson J. and Hill J. and agree for the reasons they have stated that the direction given by the President under para.63(3)(c) of the Native Title Act 1993 ("the Act") did not constitute an exercise of the judicial power of the Commonwealth able to be exercised only by a federal court pursuant to Chapter III of the Constitution.

          Subject to the qualifications set out below, I also agree with the remainder of the reasons of Hill J. save for his Honour's conclusion that the grant of the "the 1904 lease" extinguished the native title the applicants sought to have determined and his Honour's further conclusion that the President did not err in directing the Registrar of the Tribunal to refuse to accept the applicants' application for the determination of native title.

          Under sub-s.63(1) of the Act the Registrar must accept an application which complies with s.62 unless the Registrar is of the opinion that the application is frivolous or vexatious or "that 'prima facie' the claim cannot be made out".  The standard set by sub-s.63(1) is quite high.  In effect the Registrar must accept an application unless the Registrar forms an opinion that the application can raise no circumstances under which the elements of a claim can be made out.  In the present case the Registrar could only form such an opinion if the Registrar believed that the law, as it bound this Court, determined that the grant, or issue, by the Crown of a pastoral lease extinguished native title.

          If the President had formed an opinion contrary to that of the Registrar, the Registrar would have been directed, under sub-s.63(4) of the Act, to accept the application, however, the President formed the same opinion as the Registrar and pursuant to para.63(3)(a) of the Act the applicants were invited to satisfy the President that a "prima facie" claim can be made out.

          Paragraph 63(3)(a) does not require an applicant to prove, or demonstrate the existence of, a "prima facie" claim.  According to the context and purpose of the Act, the paragraph requires the applicant to identify the findings of fact, or law, which if made in the applicant's favour would permit a determination of native title to be made in the terms sought by the application.  (See:  Northern Territory of Australia v. Lane, Unreported (Federal Court of Australia, O'Loughlin J., 24 August 1995, at 50-51.)

          The applicants contend that the response provided to the President's request was sufficient to show that the question of extinguishment of native title by the grant of a pastoral lease was not a matter of settled law and that the applicants had arguments of substance to submit on that issue on the determination of the application.  Therefore, it is said, the President should have been satisfied, pursuant to para.63(3)(b) of the Act, that the applicants had shown that a "prima facie" claim can be made out.

          With regard to the task to be performed by a presidential member pursuant to sub-s.63(3) of the Act, it will be a rare case where the obligation imposed on an applicant by that sub-section - to satisfy a presidential member that a "prima facie" claim can be made out on an application given to the Registrar under s.61 of the Act - will oblige the presidential member to consider and determine a question of law.  In its terms sub-s.63(3) does not suggest that the presidential member is to refrain from deciding whether he, or she, is satisfied that a "prima facie" claim can be made out until that member has decided questions of law that may be raised by the application.  (See:  Northern Territory v. Lane, pp.38-39.)  If a question of law is of importance to the fate of the application that would be a matter the President would be required to take into account pursuant to sub-s.123(2) of the Act when considering what directions were to be given for constituting the Tribunal to hold the inquiry that s.139 of the Act directs must be held in respect of an application that is unopposed.

          Before a presidential member considers whether he, or she, is satisfied by the applicant that a "prima facie" claim that native title is held by the applicant can be made out the presidential member must assume that any question of fact, or law, required to be found or determined in the matter will be resolved in the applicant's favour.  If, notwithstanding that assumption, the applicant is unable to satisfy the presidential member that a "prima facie" claim can be made out, it will be because it is apparent on the face of the application that the claim raised by the application is untenable.  That is, the flaw in the claim must be patent on the material set out in, or accompanying, the application under s.62 of the Act before the operation of s.63 of the Act is attracted.  Unless the lack of substance in an application is self-evident, a presidential member could not form an opinion that a "prima facie" claim cannot be made out.

          If a question of fact, or law, determinative of the application may be found, or decided, as contended by the applicant a presidential member must be satisfied that a "prima facie" claim can be made out and the claim must be accepted.  The applicant does not have to show that it is probable that its case will succeed.  It is sufficient for the applicant to show that it has a claim that may succeed. At that point the application must be accepted and dealt with in the manner provided by the Act. 

          If a question of law raised by an application has been decided by a court and the consequence of that decision appears to be that the claim of native title cannot be made out then, unless the applicant shows it to be arguable that the decision does not determine the application, the presidential member would be obliged to apply the law as determined and direct that the application not be accepted.  However, if the application involves an undecided question of law that question will be part of the application to be determined by the Tribunal in an inquiry held under s.139 of the Act, or by this Court, if a question of law is referred to the Court by the Tribunal under s.145 of the Act or if the application is lodged with the Court by the Tribunal for determination under s.74 of the Act.

          After the decision of the High Court in Mabo v. The State of Queensland (1992) 175 C.L.R. 1 ("Mabo [No.2]") confirmed that native title was recognized at common law Parliament considered it necessary to provide in the Act, inter alia, a statutory system to facilitate the ascertainment of native title and the effect of that title on interests in land.  The Act seeks to assist the holders of native title, and the owners or possessors of affected land, to determine whether native title exists and the extent of its effect upon that land.  Underlying the Act is an acknowledgment by Parliament that unless mediation or consultative processes are provided by the Act for the purpose of encouraging parties to use direct and less costly means of resolving their differences, the prosecution of "inter partes" litigation on a "parcel by parcel" basis will incur great cost and tend to prolong uncertainty about the existence and effect of native title.

          The following extract from the preamble to the Act reflects the intention of Parliament in that regard:

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

          The procedure introduced by the Act includes the establishment of the Tribunal and a system of mediation and negotiation that offers an alternative to adversarial litigation.  The role of the Tribunal is to facilitate the presentation of cases for determination and, in particular, to provide a mediation service by which parties may be assisted in effecting a resolution of their differences.

          For example, once an application has been given to the Registrar pursuant to sub-s.61(2) of the Act, the applicant is to be notified by a Government party if a "permissible future act" is proposed to be carried out by that party (s.26, s.29) and negotiation with the applicant must take place (s.31).  (See: Northern Territory v. Lane, p.11.)  After an application has been accepted by the Tribunal s.72 of the Act requires a mediation conference to be convened to help resolve the matter raised in the application.

          It must be assumed that if important questions of fact, or law, raised by an application were to be treated as threshold issues to be determined at the time the application is given to the Registrar, a quasi-judicial, and probably adversarial, proceeding would be imposed before access to mediation became available.  That result would not meet the purpose of the Act or, in particular, the procedure intended to be applied in s.63.  Furthermore, as the "appeal" in this matter demonstrates, litigation upon the determination of threshold issues would be likely to follow involving the passage of time and the incurring of substantial cost.

          In my opinion, as demonstrated in the content and complexity of the arguments addressed to the Court on the hearing of this "appeal", the application was not one to which settled law applied foreclosing further argument and obliging the President to direct the Registrar to refuse to accept the application.

          The President delivered full reasons, now reported as Re Waanyi People's Native Title Application (1995) 129 A.L.R. 118, in which he held that he was bound by the judgments in Mabo [No.2] to conclude that the native title sought to be determined in the application had been extinguished by the "grant" of a pastoral lease under the Pastoral Leases Act 1869 ("the 1883 lease").  The material before the President did not establish that an instrument of pastoral lease for the 1883 lease had been issued.  An Executive Council Minute recorded that a recommendation for a right of lease had been approved on 27 September 1882 and entries in the Register of Runs maintained under the 1869 Act recorded that a pastoral lease for a term of 21 years commenced on 1 July 1883. The President stated that it was accepted on all sides that the relevant instrument of pastoral lease would have contained a reservation in the same form as that set out in the instrument of pastoral lease issued for the adjacent pastoral holding known as the Lillydale Run. The term of that lease commenced on 1 July 1879.  The lease was not issued until April 1900.  If the pastoral lease had issued with such a reservation the President would have been satisfied, at least to that point, that a "prima facie" claim can be made out by the applicants.  The President accepted that if such a reservation was included in the lease as issued, the lease would have been a valid lease under the 1869 Act.

          I agree with Hill J. that the proper inference to be drawn in the circumstances was that the 1883 lease did issue with such a reservation, or, alternatively, that it was an open question of fact to be assumed in the applicants' favour at that early stage of examination of the application.

          I would add, however, that upon the President being satisfied, as he was, that there was ample evidence of a standard form of reservation being included in leases issued at the time of the "grant" of the "1883 lease" and the parties accepting that the President should assume in favour of the applicants that the "1883 lease" would have contained such a reservation, the President should have been satisfied that an approved lessee's right to hold Crown land pending the issue of a lease was a right under the 1869 Act that could give no greater benefit than the lease to be granted and issued under the 1869 Act being a lease that would include a reservation in the standard form.  At that point, whatever equitable interest, or right of occupation protected by statute, was held by the approved lessee neither circumstance involved an act by the Crown intended to extinguish, or capable of extinguishing, existing native title.

          It is apparent that when the proposed or approved lessee occupied the pastoral holding the Crown was not prepared to issue a lease under the 1869 Act which did not include the standard reservation and that the approved lessee was prepared to accept a lease so qualified.  The approved lessee could not call upon the Crown to issue a lease which excluded that reservation.  The grant and issue of a lease and the fixing of the terms of the lease were part of the exercise of statutory powers and discretions rather than the performance of a contract made between the approved lessee and the Crown.  If, however, it could be said that the Crown and the approved lessee were parties to an agreement to grant and issue a pastoral lease it was an express term of that contract, to be inferred from the facts, that the lease as issued would include the standard reservation.  No question arises as to whether such a term is to be implied into the contract to give it business efficacy.  (See:  Thompson & Morgan (United Kingdom) Ltd. v. Erica Vale Australia Pty. Ltd. (1995) 31 I.P.R. 335 per Lockhart, Gummow and Hill JJ. at 343-345.)

          Under the 1869 Act it may be said that until a pastoral lease was granted under the Great Seal and made a matter of record no legal interest would be vested by the Crown to give effect to any pending intention the Crown may have to extinguish native title by vesting such an interest.  (See:  E. Campbell, "Crown Land Grants: Form and Validity" (1967) 40 A.L.J. 35 at 38.)  The pastoral tenant may have had an enforceable right to retain and recover possession of the pastoral holding but could not claim against the Crown that a legal estate had been vested. (cf.  s.53 - 1869 Act.)

          The President, therefore, should have been satisfied that the ability of the applicants to make out a "prima facie" claim was unaffected by the 1883 lease.  The President should have been satisfied that as the reservation was, or would be, part of the pastoral lease as granted, or issued, it was not a "super added contractual obligation" that had the effect of "carving...something out of the demised estate".  According to the material before the President there was, or would be, no demise unless it was a demise subject to that reservation.

         

          Although the foregoing conclusion of the President led to the failure of the applicants to satisfy the President in the terms required by para.63(3)(b) of the Act, the President's further conclusion that the grant of a pastoral lease ("the 1904 lease") under the Land Act 1902 (Qld.) ("the 1902 Act") extinguished native title would have had the same result.  It is necessary, therefore, to examine the President's conclusion on the effect of the 1904 lease.

          By s.2 of the 1902 Act that Act is to be read and construed with, and as an amendment of, the Land Act 1897 ("the 1897 Act"). Pursuant to s.12 of the 1897 Act the Governor-in-Council was empowered to "demise for a term of years any Crown lands, within the Colony of Queensland".  Such a lease was to be made subject to such reservations or conditions as were authorized by the 1897 Act and was to be in the prescribed form and "being so made" was valid and effectual to vest in the person therein named, subject to the provisions of the 1897 Act, the land described in the lease "for such estate or interest as shall be set forth in the instrument".  [emphasis added]                                               

          Part III of the 1902 Act provided for the reclassification of the Crown lands subject to pastoral leases by the surrender of those leases and the grant of new leases to pastoral tenants who elected to take advantage of the provisions of the 1902 Act.  By sub-s.6(1) of the 1902 Act at any time before 1 January 1904 a pastoral tenant could make application for the classification of the tenant's holding.  By s.8 of the 1902 Act, if within six months after the publication of the classification of the holding a pastoral tenant elected to take advantage of the Act upon surrendering the existing pastoral lease the tenant became "entitled to receive" a lease from the Crown under the 1902 Act.  Pursuant to sub-s.8(2) and Schedule II of the Act a notice of election by the tenant in the statutory form also operated as a notice of surrender of the pastoral lease.  In the terms of that notice it was stated that the surrender was to take effect from the commencement of the term of the new lease.  Sub-section 8(6) of the 1902 Act provided that a lease "shall only be granted after the payment of all rent payable under the surrendered pastoral lease". [emphasis added]  It may be said to be apparent from the foregoing that the entitlement to receive a lease did not take effect as a grant of lease.

          Sub-section 6(2) of the Act provided that if after a lessee had applied to have the pastoral holding classified under the 1902 Act a pastoral lease may expire before a new lease was "duly issued", the pastoral lease was to be deemed to be a subsisting pastoral lease beyond the date of expiration.  If, therefore, after publication of the classification of the lessee's pastoral holding the lessee under a "deemed subsisting lease" gave notice of election under sub-s.8(1) of the 1902 Act to have the 1902 Act applied to the lessee's holding, the notice would operate as a "surrender" of the deemed "subsisting pastoral lease".

          The combined effect of ss.8 and 6 of the 1902 Act would appear to be that the surrender of a pastoral lease contained in the notice of election to take advantage of the 1902 Act would be irrevocable (sub-s.8(2)) and would operate retrospectively from the date of grant, or issue, of a lease under the 1902 Act.  The surrendered pastoral lease, whether current, or expired but deemed to be "subsisting", would continue to operate until such time as the instrument of lease under the 1902 Act was duly issued at which point the surrender took effect retrospectively.  The provision in s.18 of the 1902 Act permitting the Crown to make "resumptions" from "surrendered" pastoral holdings tends to support that construction. The analogy at law would be that the vesting of an estate in reversion would not occur upon expiration, or surrender, of a pastoral holding that was subject to Pt.III of the 1902 Act.

          In the present case on 18 December 1903 the pastoral tenant applied for the pastoral holding to be classified under the 1902 Act.  The applicants submit that, as found by the President, the 1883 lease did not issue and, therefore, the 1902 Act had no application to that pastoral holding in that the party in possession was not a "pastoral tenant" as defined in the 1902 Act.  For the purpose of dealing with the effect of the 1904 lease it will be assumed that the 1902 Act applied to the pastoral holding.  The 1883 lease was due to expire, or would have expired if issued, on 30 June 1904.  On 27 June 1904 the tenant applied under the Pastoral Leases Extension Act 1890 to obtain an extension of the term of the lease.  On 14 July 1904 it was recorded in an Executive Minute that the term of the lease had been extended for a period of five years from 1 July 1904.  Without considering whether such an application for extension was available to the lessee under that Act, it may be said that the approval operated as a statutory extension of the term and not as the grant of a new lease.  The lease continued, therefore, whether as an extended lease, or as a deemed "subsisting pastoral lease", in the same terms, including the reservation protecting the interests of indigenous people.  On 28 July 1904 the tenant gave notice of election to take advantage of the 1902 Act and of the surrender of the pastoral lease.  As noted above, pursuant to ss.6 and 8 of the 1902 Act the pastoral lease as extended, or as a "deemed subsisting lease", continued, notwithstanding the surrender, until a new lease was "duly issued" under the 1902 Act.

          It follows from the foregoing that until the Crown demised a pastoral holding under the 1897 and 1902 Acts, a party "entitled to receive" such a lease could call for the grant and issue of such a lease and, meanwhile, could support possession of the pastoral holding by relying upon a statutory entitlement to receive such a lease.  But the question in issue in the present case is not whether a pastoral tenant had a right to possession of a pastoral holding pursuant to the terms of a statute (cf. O'Keefe v. Williams (1910) 11 C.L.R. 171) but whether the Crown intended to extinguish native title by vesting in that person a legal interest in the land, such vesting of an interest intended by the Crown to be inconsistent with the exercise and continuation of native title.  The right under the statute, or in equity, to retain possession of the pastoral holding and to call for the issue of a lease did not depend upon the vesting of a legal interest in the land.  It is plainly arguable that such a vesting of interest did not take place until a demise for a term of years was made in the terms provided by s.12 of the 1897 Act, namely, in the prescribed form of the statutory instrument.  The issue of the instrument of lease did not occur until 14 November 1907.

          The provision in the 1897 Act of the manner of vesting the leasehold interest overcame the need for the grant by the Crown to be under the Great Seal and to be a matter of record.  In so far as the habendum of the lease operated as a grant it may be said that it was prospective only and that the retrospective date for the commencement of the term set out in the habendum marked the duration of the term and not the date of the grant of a legal interest to the tenant.  (See:  Shaw v. Kay [1847] 1 Ex. 412; Jervis v. Tomkinson 1 H. & N. 195 per Pollock C.N. at 207; Cotton v. Becollda Investments Ltd. [1950] 1 K.B. 216 per Jenkins L.J. at 226; Perpetual Trustee Co. Ltd. v. Morley [1968] 70 S.R. (N.S.W.) 161; Perpetual
Trustee Co. Ltd. v. Morley (1969) 121 C.L.R. 659; Queensland Television Ltd. v. Federal Commissioner of Taxation (1969) 119 C.L.R. 167; Roberts v. Church Commissioners for England [1972] 1 Q.B. 278; Bradshaw v. Pawley [1980] 1 W.L.R. 10 per Megarry V-C at 14-15.)

          The respondents submitted that the words of s.8 of the 1902 Act suggested that a new lease "took effect" as soon as the conditions referred to in that section were satisfied.  Therefore, it was said, if execution of a lease was essential under the 1897 Act "for the commencement of a term", s.8 of the 1902 Act was inconsistent with that requirement and the 1897 Act was amended accordingly.

          There are no words of grant in s.8 to show that an interest in land was vested by operation of that section.  The argument that s.8 sets the time at which a term of lease commences, if correct, does not sustain a latent submission that the section is to be construed as a statutory vesting of a legal estate.  The terms of s.8 are consistent with, and go no further than, the position at law referred to above, as to the computation of the term of a lease.  The words "shall be entitled to receive a lease from the Crown" are not words of complexity and should be given their ordinary meaning.

          The express provisions of s.12 of the 1897 Act would require very clear words of amendment in the 1902 Act to alter
the requirement in s.12 that a lease in prescribed statutory form be executed before a legal interest was vested in a lessee.  Such words are not contained in s.8 of the 1902 Act.

          By reason of the foregoing it is plainly arguable that by 6 June 1907 the whole of the area the subject of the application to the Tribunal had been excised from the area in respect of which the pastoral tenant had an entitlement to receive a lease under the 1902 Act and that the vesting of the interest which occurred upon execution and issue of the instrument of lease on 14 November 1907 did not vest an interest capable of extinguishing native title over an area that was then a proclaimed reserve excised from the pastoral holding.

          Additional arguments may be raised against any extinguishing effect in the 1904 lease.  In addition to s.12 of the 1897 Act, s.12 of the 1902 Act provided that every pastoral lease granted under the 1902 Act was to be subject to certain conditions, in particular a condition reserving in favour of the Crown the unrestricted right to proclaim reserves and to resume without compensation, except for improvements, any land required for the purpose of such reserves. The lease was also subject to such reservations in favour of the Crown as were necessary and proper to give effect to any Act or Regulation for the time being in force.

          Each of those reservations was a significant derogation from the right to possess Crown land contained in a demise by the Crown for a term of years.  Pursuant to s.190 of the 1897 Act one of the purposes for which the Governor-in-Council may reserve Crown land was for the use or benefit of Aboriginal inhabitants of the colony.  Pursuant to s.227 of the 1897 Act the Crown may issue a licence for any Crown land, including a pastoral lease, to cut and remove timber, and to dig and remove stone, gravel and other material and the holder of such a licence was entitled to depasture on the pastoral lease animals used for the purpose of the licence, in such numbers, for such time, and for such agistment fee as the Regulations may prescribe.  Section 229 of the 1897 Act stated that a pastoral lessee did not have the power to restrict a person so authorized, from cutting or removing timber, or material, for building or other purposes, or for searching for a metal or mineral within the pastoral holding.  Pursuant to s.230 any person driving stock was entitled to pass through a pastoral lease and depasture stock in any part of the land within half a mile of the road used for droving.  Section 231 stated that the pastoral lessee could not ringbark trees without permission, or cut down trees other than for the purposes of the pastoral holding.  Similarly, under s.234 only a person authorized for that purpose by a licence from the Crown could dig or remove stone, gravel and like material on, or from, the pastoral holding.

          Such statutory provisions imposed limitations upon the possessory interest granted by a pastoral lease and, it may be argued, spoke fairly forcefully of the absence of an intention on the part of the Crown to extinguish any form of native title which burdened the Crown title at the time the pastoral lease was granted.  If a pastoral lessee was obliged to yield to woodcutters, miners and drovers and to accede to excision from the land demised, without compensation except for improvements, such part of the demise as was required by the Crown for the purpose of a reserve, there would appear to be considerable weight in the argument that the Crown did not intend by granting a pastoral lease to extinguish any native title that operated upon the ostensibly limitless areas of unenclosed and unsettled land included within such pastoral leases.  The vastness of the area of unenclosed land in the instant case is exemplified by the area "surrendered" in 1907 for the purpose of a reserve.  That portion was 278 sq. miles.  The area of the pastoral holding which remained was 1,664 sq. miles.  A sq. mile contains 640 acres.

          Part of the purpose of the 1897 and 1902 Acts was to enable the Crown to recover control of some of the areas subject to pastoral leases and, where suitable, make that land available to selectors under other forms of tenure (1897 Act - Pts.III, IV; 1902 Act - Pts.III, IV).  Except for that process of resumption it was the intent of the Crown that no part of a pastoral lease was available for selection and alienation.  Indeed, by s.151 of the 1897 Act a pastoral tenant was prohibited from applying for a Grazing Farm (s.145 - up to 640 acres), or a Homestead (s.142 - up to 160 acres), within 15 miles of that pastoral lease.

          The form of lease prescribed pursuant to s.12 of the 1897 Act was as set out in Form 3 of The Land Regulations 1903 made pursuant to s.261 of the 1897 Act and amended under s.23 of the 1902 Act.  Section 23 of the 1902 Act provided that the Regulations made under the 1897 Act amended under the 1902 Act were applicable to a pastoral holding under Pt.III of the 1902 Act.

          The form of the lease issued on 14 November 1907 was not as prescribed in Form 3 of The Land Regulations 1903 in its entirety but the habendum which read as follows was essentially in the same terms as the prescribed form:

            "WE DO HEREBY, for Us, Our Heirs and Successors, DEMISE AND LEASE unto the said Bank of New South Wales their successors, and assigns (hereinafter called "the said Lessees") ALL THAT Piece or Parcel of Land situate in the District of Burke known as Lawn Hill Holding and more particularly described in the Schedule endorsed on these Presents: TO HOLD the same unto the said Lessees, for pastoral purposes only, for and during the term of Forty-two years, to be computed from the First day of July, 1904, subject to the said rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, and provisoes in the said Act and the Regulations thereunder now or hereafter to be made, and in these Presents respectively contained:" [emphasis added]

          The words of qualification in the habendum limiting the demise to pastoral purposes only are significant in establishing the intent of the Crown.  If Crown land unsuitable for close settlement, or enclosure, is permitted by the Crown to be used for pastoral purposes being land in respect of which indigenous people have continued to exercise customary rights consistent with a form of native title, it would seem to be at least arguable that any use of the land by a pastoral tenant pursuant to a pastoral lease granted in the terms set out above was intended by the Crown to be concurrent with the rights of indigenous people.  That is, the grant of a lease carried no necessary implication of a clear and plain intention by the Crown to extinguish the rights of the indigenous inhabitants.  In the present case it was not in issue for the purpose of the "appeal" that it could be made out that there had been continuous exercise of customary rights by indigenous people before and after the radical title of the Crown was acquired on settlement in 1788.  It may be thought to be a bold proposition that the grant of a statutory right to take possession of a vast area of leasehold land to depasture stock, being an area which included land to which an organized social group of indigenous inhabitants resorted as of right for usufructuary or cultural purposes, demonstrated a clear and plain intention by the Crown to extinguish those rights when the interest granted to the pastoral tenant by the Crown was subject to various derogations including the right of the Crown to recover the demised property by resumption or reservation, and rights of access and possession vested by the Crown in third parties, the exercise of which, in most cases, was likely to cause as much disturbance to the pastoral tenant's enjoyment of possession as the use of native title rights by indigenous inhabitants.

          On the face of those facts it is arguable that the interests created by the Crown as pastoral leases - a course necessitated by the need to regulate the practice of settlers of "squatting" on unalienated Crown land - were intended to be used, or enjoyed, in coexistence with indigenous title and that the granting of pastoral leases over such areas did not carry with it an intent by the Crown to extinguish native title.  (See:  S.H. Roberts, History of Australian Land Settlement 1788-1920, Macmillan (1968) p.166 et seq: "The Tracks of the Squatters"; Ch.15: "The Squatters And The Government".)

 

          In so far as assistance is to be gained from the consideration of history of the use of the waste lands of the Crown for pastoral purposes it may be said that the historical records suggest at the outset an absence of Crown intention to exclude customary rights of access of aboriginals to that land, or to extinguish native title.  (See:  Orders-in-Council: 9 March 1847 proclaimed 7 October 1847, 18 July 1849 proclaimed 23 April 1850; Dispatch No. 24: Secretary of State, Earl Grey, to Governor of New South Wales Sir Charles FitzRoy, 11 February 1848 Historical Records of Australia Series 1, Vol. 26, p.226; Dispatch No. 134: Earl Grey to Sir Charles FitzRoy, 6 August 1849; Dispatches to the Governor, Mitchell Library, M.S.A. 1308.)

          Having determined that the matter should be returned to the Tribunal and the President's direction to the Registrar not to accept the application set aside, it is unnecessary to consider the further argument put to the President, (see pp.142-151), repeated on this "appeal", namely, that the power of the Queensland Legislature to extinguish native title by the grant of pastoral leases was subject to the proviso of s.30 of the Constitution Act 1867 that had been enacted to ensure the performance of earlier contracts, promises or engagements made on behalf of the Crown.

          I now turn to consider the effect in law of the judgments in Mabo [No.2].

          The parties to the "appeal" acknowledge that Mabo [No.2] did not decide that native title was extinguished by the grant of a pastoral lease under the 1902 Act.  However, the respondents submit that extinguishment of native title by the grant by the Crown of any leasehold estate over Crown land was regarded as fundamental to the judgments of the majority in that case and, therefore, a contrary determination of the law by a lower court would be inconsistent with the law as explained by the majority.  Thus, it is said, the President correctly applied the law in deciding to direct the Registrar not to accept the applicants' application.

          Before considering the effect upon native title of a grant by the Crown of a pastoral lease it is necessary to have regard to the particular facts in Mabo [No.2] which govern what was said in the several judgments about the effect upon native title of the grant by the Crown of a leasehold estate  in Crown land.

          In Mabo [No.2] the relevant leases were, first, a special lease of 2 acres of land on Mer Island granted to the London Missionary Society by the Crown in 1882. The lease was for a term of years.  It does not appear that the grant of lease was subject to any qualification.  Second, the Crown granted to two non-Islanders a lease of the whole of Dauer and Waier Islands for a term of 20 years.  The lease was granted "for the purpose of establishing a sardine factory".  The contractual terms of the lease included a condition that the lessees not obstruct, or interfere with, the use by Meriam people of the Islands for gardens and the surrounding waters for fishing.

          It was declared in Mabo [No.2] that, putting to one side the Dauer and Waier Islands, the rights and privileges of the Meriam people under native title extended to an entitlement "as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands".  Clearly the entitlement as declared recognized more than usufructuary rights such as gardening and fishing, the activities the lessees of the Dauer and Waier Islands had covenanted not to obstruct or hinder.

          In Mabo [No.2] Brennan J., (at p.68), stated, that under a lease granted by the Crown, where the Crown relies on its radical title, the lessee acquires possession and "the Crown acquires the reversion expectant on the expiry of the term" and, thus, the radical title of the Crown is expanded to a plenum dominium "on the expiry of the term".  That statement suggests that it is not the grant of a leasehold interest by the Crown that establishes in the Crown an absolute beneficial interest in the land dealt with under a radical title, but the actual acquisition by the Crown of an additional estate upon the expiration of the lease.  It may be argued that whether such an expectant estate is created and whether more than a radical title must be relied upon to make the grant of lease an effective leasehold estate for the purpose for which it is granted depends upon the nature of the demise.  Other passages in his Honour's judgment (cf. 61, 69, 72, 73) suggest that his Honour considered that the act of granting a lease under radical title was capable of extinguishing native title at the point of grant.  However, his Honour did say (pp.71, 76) that the extinguishment of native title on Mer Island in respect of the area leased to the London Missionary Society occurred either upon the grant of the lease "or on renewal of the lease".  The alternative reference to extinguishment of native title at a point after the grant of the lease may suggest that his Honour did not discount that acquisition by the Crown of an absolute beneficial interest in the land did not occur until expiry of the lease and that not until a renewal of the lease was granted did an act by the Crown occur that involved reliance upon absolute ownership of the land and, therefore, demonstration by the Crown of a clear and plain intention to effect extinguishment of native title.

          With regard to the lease of Dauer and Waier Islands his Honour said (p.72-73) that if the lease was validly granted the limited reservations set out as special conditions to the lease, obliging the lessee to permit the Meriam people to exercise usufructuary rights on or about the islands, were not sufficient to avoid the consequence that the traditional rights and interests of the Meriam people had been extinguished.  At p.73 his Honour said:

 

            "By granting the lease, the Crown purported to confer possessory rights on the lessee and to acquire for itself the reversion expectant on the termination of the lease.  The sum of those rights would have left no room for the continued existence of rights and interests derived from Meriam laws and customs". (emphasis added).

          It may be said that his Honour's reasons do not fix on the time of grant as the point at which native title is extinguished but acknowledge the possibility that such extinguishment does not occur until the Crown acquires an absolute interest in the land upon expiry of the lease.

          The declaration proposed by Brennan J. did not refer to the lease of Dauer and Waier Islands and was as follows (p.76):

 

            "...

 

             (2)  that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer except for that parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have been validly appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of Meriam people under native title;

 

             ..."

          Mason CJ. and McHugh J. (p.62) expressed accord with the reasons of Brennan J. and with the declaratory orders proposed by his Honour subject to the qualification that the formal order of the Court be "cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration". The declaratory order as made, therefore, excluded reference to the effect of a grant of lease by the Crown and read as follows (p.217):

 

            "...

 

             (2)   putting to one side Islands of the Dauer and Waier and the parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, declare that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands;

 

             ..."

          In the opinion of Dawson J. (p.159) the Crown obtained a full beneficial interest in the land upon annexation of the Murray Islands and such annexation thereby, extinguished any native title.  Dawson J. (p.158) offered the following additional comments in respect of the effect on native title of the grant of the leases:

 

            "The granting of the lease of land to the London Missionary Society referred to earlier and of the lease for the purposes of a sardine factory are inconsistent with the preservation of native title, although in the latter case the lease was subject to conditions that the lessees would not in any way obstruct or interfere with the use of the Murray Island natives of "their tribal gardens and plantations" on the demised land and would not in any way obstruct or interfere with the operations of the Murray Island natives who fished around the reefs adjacent to the demised land.  The construction of public buildings and the carrying out of public works on the islands is also inconsistent with the preservation of native title."  

          Whether in respect of the effect of the lease of the Dauer and Waier Islands his Honour was acknowledging that an argument remains about Crown intention to extinguish native title is not clear. 

          Deane and Gaudron JJ., (p.110) stated, that the personal rights in land embodied in common law native title could be extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.  Their Honours (p.177) stated that the lease of the whole of the Dauer and Waier Islands for a term of 20 years for the purpose of establishing a sardine factory, neither extinguished, nor had any continuing adverse affect upon, any rights of the Meriam people under common law native title.  In that statement their Honours appear to accept that the grant of the lease over the Dauer and Waier Islands for an express purpose, namely, to establish a sardine factory, meant that the grant of the lease did not operate as an unqualified grant of an interest in land conferring the right to exclusive possession.  Their Honours did not rely on the covenant of the lessees to refrain from obstructing, or interfering with, the use by the Meriam people of their gardens on the Islands and their fishing operations around the Islands to support their conclusion.  It may be said that those covenants were promises to take effect subsequent to the grant and not as a qualification upon the grant.

          Their Honours (p.117) made it clear that neither in respect of the lease of land to the London Missionary Society nor of the lease of the Dauer and Waier Islands was any determination required to be made about the effect of those leases upon native title.

          Toohey J. (p.197) also acknowledged that it did not fall to be determined in Mabo [No.2] whether the grant of a lease to the London Missionary Society, or the grant of the lease of the Dauer and Waier Islands for the purpose of establishing a sardine factory, had the effect of extinguishing the traditional title of the Meriam people.  In respect of the lease to the London Missionary Society, Toohey J. (p.197) stated that:

            "It may be that, since there was a special lease of two acres of the Islands, the intention of the legislature to extinguish title was expressed in unequivocal terms."

 

 

 

In regard to the lease of the Dauer and Waier Islands his Honour expressed no view, but it is apparent from the foregoing that his Honour considered that the mere act of the Crown in granting a lease was not in itself sufficient to extinguish native title and the question whether such extinguishment had been effected had to be determined according to the intent of the Crown reflected in the nature and quality of the leasehold interest granted by the Crown.

          Importantly for the issues raised in this "appeal", the question of the effect of the grant by the Crown of a pastoral lease over Crown land was not decided in Mabo [No. 2].  Even if it may be said the judgments in Mabo [No. 2] disclose that a majority of the justices who constituted the court expressed views foreshadowing a conclusion that the grant of a lease by the Crown would extinguish native title, the issue was not so determined and, therefore, no binding ratio in that respect is to be found therein.  It follows that it cannot be said that the question of the effect of the grant by the Crown of a pastoral lease is a matter of settled law. 

          Can it be said that the proposition that the grant of a pastoral lease contains the necessary implication that the Crown intends to extinguish native title in land over which such a lease is granted is beyond denial by reasoned argument?  Determination of the effect of the grant of a pastoral lease upon native title will require consideration of several issues that were not required to be considered in Mabo [No.2].  (See:  Edgeworth B., "Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo v. Queensland", (1994) 23 Anglo-American Law Review 397.)  To say that an essential part of the definition of a lease under general law is the right to exclusive possession tends to beg the question to be answered as to the intention of the Crown in granting a pastoral lease.  To ascertain that intention it is necessary to examine the nature of the tenure granted by the Crown under the statutory description of "pastoral lease" having regard to the form and purpose of the interest created by the statute.   (See:  R. v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 C.L.R. 327 per Mason J. at 344; Davies v. Littlejohn (1923) 34 C.L.R. 174 per Knox C.J. at 183.)

          It may be submitted that a pastoral lease granted by the Crown is a qualified grant of an interest in land being a statutory interest in Crown land created to meet the requirements of Australian conditions.  (See:  Reynolds H., "Native Title and Pastoral Leases" in Stephenson M.A. and Ratnapala S. (eds.), Mabo: A Judicial Revolution, U.Q.P. (1993) at p.124; Yandama Pastoral Company v. The Mundi Mundi Pastoral Company Limited (1925) 36 C.L.R. 340 per Isaacs J. at 353 et seq.)  Some of those relevant circumstances may be the following:

            i)pastoral leases were issued for unimproved and unsettled lands unlikely to be alienated by the Crown in grants in fee;

           ii)the interest granted under a pastoral lease was not an unqualified grant conferring an exclusive right to possession of the land but a grant of possession of Crown land for an express limited use, namely, pastoral purposes;

          iii)pastoral leases were granted over extensive
areas of land that was, and would remain, unenclosed;

           iv)the grant of statutory interest in possession in the form of a pastoral lease was subject to significant derogations including the absence of the right to exclude third parties who had already obtained, or may obtain from the Crown, rights of access to, and use of, the land, e.g. woodcutters, miners, prospectors and drovers;

            v)pastoral leases were granted by the Crown with knowledge, express or implied, of the exercise of traditional or customary rights in respect of the land by organized social groups of indigenous inhabitants, such use being fundamental to the sustenance and maintenance of the lifestyle of those groups;

           vi)pastoral leases were first granted by the Crown for the purpose of regulating and controlling the occupation of Crown land for pastoral purposes hitherto occurring without the authority of the Crown.

          Where native title involves the exercise of traditional usufructuary rights the absence of any provision by the Crown for the consequence of extinguishing those rights, the Crown having knowledge that the exercise of those rights represented an integral part of the life of the indigenous people concerned, may suggest that in granting a right to depasture stock over vast areas of waste land by the grant of a pastoral lease the Crown had no intention of appropriating to itself a full beneficial interest in the land so as to extinguish the indigenous title to which the Crown's radical title was then subject.  To the contrary, it may be assumed that the Crown intended that a leasehold estate qualified in its grant, such as a grant of a lease for pastoral purposes, was capable of being enjoyed to the extent of the estate intended to be granted by the Crown concurrently with indigenous title.  If the exercise of customary rights by indigenous people led to conflict between the pastoral tenant and indigenous title holders it was a matter the Crown would have to address as and when it occurred, as was the case when "squatters" occupied such Crown lands as "runs" for pastoral purposes.  (See: Dispatch No. 65: Sir George Gipps to Lord Glenelg, 6 April 1839 H.R.A. Vol. 20 p.91; R.H.W. Reece, "Aborigines and Colonists", University of Sydney Press (1974) at pp.143, 175 et seq.)  There may have been an awareness by the Crown that such grants would impair the exercise of customary rights by indigenous people, but it does not follow that knowledge of that likely impairment evidenced an express intent to extinguish those rights. (See:  Delgamuukw v. British Columbia (1993) 104 D.L.R. (4th) 470 per McFarlane JA at 525.)

          Such an approach to the inferences of intent to be drawn from the conduct of the Crown may be given added weight by the argument that when the Crown asserted from the date of settlement that all indigenous people were subjects of the Crown it assumed a fiduciary responsibility to act to protect them as a vulnerable class when thereafter the Crown introduced to the colony settlers likely to disregard the existing rights of those people.  (See:  R. v. Sparrow (1990) 70 D.L.R. (4th) 385 at 408; Delgamuukw per McFarlane JA at 524; Mabo [No.2] per Toohey J. at 203; L. Di Marco, "A Critique and Analysis of The Fiduciary Concept in Mabo v. Queensland" (1994) 19 M.U.L.R. 868; D. Tan, "The Fiduciary as an Accordion Term: Can the Crown Play a Different Tune?" (1995) 69 A.L.J. 440.)

          Furthermore, it may be said that exercise by the Crown of the right to grant tenure in land based upon a radical title does not, in itself, require the expansion of the radical title to a full beneficial estate.  The concept of radical title has been applied to provide a logical foundation for a doctrine of tenure by which interests may be held from and under the Crown (See: Mabo [No.2] per Brennan J. at p. 50; N. Rogers, "The Emerging Concept of 'Radical Title' in Australia: Implications for Environmental Management", Environmental and Planning Law Journal, (1995) 12, 3 at p.183; M. Stuckey, "Feudalism And Australian Land Law: 'A Shadowy, Ghostlike Survival'?" (1994) 13 Univ. Tas. Law Rev. 102.)

          Therefore, the grant by the Crown of any interest in land relying upon its radical title does not require the Crown to assume absolute beneficial ownership of that land to make the grant.  Whether the Crown has so acted depends upon whether the character of the estate or interest granted by the Crown is dependent upon, and can flow from nothing less than, absolute beneficial ownership by the Crown.  It may be said that the grant of a lease for pastoral purposes over waste land does not require that the estate as granted must proceed from a Crown title of absolute beneficial ownership.  It is not the equivalent of the grant of lease by the holder of a freehold estate.  An unqualified grant of a leasehold estate in closely settled land in which the delivery of exclusive possession is fundamental to the purpose of the grant of the lease, may bring different considerations.  A pastoral lease granted over unsettled land, which after cancellation, forfeiture or termination of the lease will remain waste land, does not require the Crown to elevate its radical title to absolute beneficial ownership for the grant of that interest.

          If the act of reservation by the Crown of a discrete area of Crown land for the express purpose of dedicating it for use as a school, courthouse or public office, or the appropriation and use of Crown land if that use is consistent with the continuing current enjoyment of native title does not extinguish native title, (see Mabo [No.2] per Brennan J. at p.70), there must be ample scope for the argument that the grant of a statutory leasehold interest by the Crown, in the form of a pastoral lease over waste land, is not intended to exclude concurrent enjoyment of native title and to extinguish that title.

          At the time of settlement the Crown acknowledged that pursuant to existing law its radical title could be displaced by a party in possession who had maintained possession adversely to the interests of the Crown for a period of sixty years.  (See Attorney-General for New South Wales v. Love [1898] A.C. 679.)  The willingness of the Crown to have its radical title overreached by an interest in possession suggests that very clear words, or conduct, should be required to show an intent on the part of the Crown to extinguish inalienable rights of use or occupation under native title which burdened the Crown's radical title at the time of settlement and were exercised continuously for more than 60 years thereafter.

          Exegesis of the operation of the common law in respect of native title will take place in the judgments of Australian courts which consider and apply Mabo [No.2].  There will be an incremental development of the law according to the particular facts of each case as those cases are brought to the courts for decision.  The law had not been declared in terms which permitted the Registrar to form the opinion that a "prima facie" claim to native title cannot be made out on the application.

          I would allow the appeal and set aside the direction to the Registrar that the application not be accepted and direct that the matter be returned to the President to be dealt with according to law.

 

 

 

 

 

 

 

            I certify that this and the preceding thirty-eight (38) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

 

             Associate:

             Date:  1 November, 1995

 

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

QUEENSLAND DISTRICT REGISTRY           )     No QG 34 of 1995

                                   )

GENERAL DIVISION                   )

         ON APPEAL FROM A DECISION OF THE PRESIDENT

            OF THE NATIONAL NATIVE TITLE TRIBUNAL

            BETWEEN:    NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION for and on behalf of the WAANYI PEOPLE

                   Applicants

                AND:    THE STATE OF QUEENSLAND

                   First Respondent

                   CENTURY ZINC LIMITED and CRA EXPLORATION PTY LTD

 

                   Second Respondents

CORAM:    JENKINSON, LEE & HILL JJ

PLACE:    MELBOURNE

DATED:    1 NOVEMBER 1995

                    REASONS FOR JUDGMENT

HILL J:

           The legislative response to the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 was the Native Title Act 1993 (Cth) ("the Act").  As the Prime Minister, in delivering the Second Reading Speech, indicated, the Bill, which later became the Act, had four key aspects.  One of them, relevant to the present appeal, was said to be the implementation of:

  "... rigorous, specialised and accessible tribunal and court processes for determining claims to native title and for negotiation and decisions on proposed grants over native title land."

           The present appeal from the President of the National Native Titles Tribunal ("the Tribunal") established by the Act, is brought by the North Ganalanja Aboriginal Corporation and Bidanggu Aboriginal Corporation for and on behalf of the Waanyi People.  It is brought under s169(2) of the Act in the original jurisdiction of the Court from a decision of the President not to accept an application to the Tribunal made by the applicants.  By force of s169(2) of the Act, the appeal is an appeal both on fact and law.

           The State of Queensland ("the first respondent") and Century Zinc Limited and CRA Exploration Pty Ltd ("the second respondents") were made parties to the present application to the Court, the land affected by the applicants' application being an area of some 247 hectares in North West Queensland known as "ten mile water hole" ("the land").  Century Zinc Limited (formerly Gulf Minerals and Metals Limited) is an applicant for a mining lease over part of the land and CRA Exploration Pty Ltd holds a mineral development licence in respect of land which includes the land the subject of the present claim.

           The President took the view, in circumstances later discussed in detail, that the applicants' application should not be accepted because the native title claimed had been extinguished by the grant of a pastoral lease over the land.  The State of Western Australia sought, and was granted, leave
to intervene on the basis that the issue of extinguishment of pastoral leases was of considerable concern to that State, having regard to the large number of pastoral leases granted over land in that Western Australia.  The Commonwealth also sought, and was granted, leave to intervene.

           Broadly, it may be said that the grounds of appeal divide into two categories.  The first series of grounds concern what may be referred to as the process adopted by the learned President leading to the decision appealed from.  The second series of grounds broadly raise the issue whether the applicants' claim to native title was indeed extinguished on the facts before his Honour.

           Before outlining the submissions put to the Court, it is convenient first to set out the procedural steps adopted by the President and then to summarise his reasons for concluding that the applicants' claim to native title should not be accepted because any native title with respect to the land had been extinguished.

THE PROCEDURAL STEPS ADOPTED

           On 27 June 1994 the applicants applied under s61(1) of the Act to the Native Title Registrar for a determination of native title in relation to the land: see too s13(1) of the Act.  That application was, so far as the present appeal is concerned, in the form prescribed (Schedule 1) by the Tribunal
Regulations.  It was also accompanied by an affidavit sworn on behalf of the applicants in accordance with s62(1), namely that the applicants believed native title not to have been extinguished and that all statements made in the application were true.  Section 62(1)(b) of the Act requires an application to:

           "... contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders."

           In compliance with that requirement, the application noted that searches referred to in the application had been conducted.  It was accompanied by the results of those searches.  It set out also a brief description of the connection of the Waanyi People to the land.  For present purposes it is not necessary to say more about that connection other than that the claim to native title was a claim that arose by succession and that there is now no dispute that the applicants have made out a prima facie claim, subject to the issue of extinguishment, to a native title arising from attachment to the land.

            The search documents commenced with a recommendation made in 1906 by the Under Secretary for Public Lands that a temporary reserve for camping and water of some 610 acres be set aside near Lawn Hill.  The material noted, inter alia,
that "the surrender from Lawn Hill is not complete".  The reserve, as recommended, was proclaimed on 21 June 1907.  It was noted also that "the area under reference forms part of Lawn Hill Consolidated Holdings, and is within Burketown Mineral Field".  That notation was dated 4 September 1906.  There was also a reference to a lease dated 1 July 1904 and a page of a provisional lease apparently dated 26 August 1991 to Lawn Hill Pty Ltd which, it is agreed, excludes the land.  The searches of mining leases and other interests disclosed the application by Century Zinc Limited for a mining lease for certain named minerals.

           On 30 June 1994 Messrs Blake Dawson Waldron, solicitors for the second respondents, wrote to the Registrar of the Tribunal expressing concern that any application for determination of native title in respect of the land might be accepted.  The letter disclosed that prior to the creation of the reserve in 1907 the relevant land had been the subject of what was said to be a pastoral lease dated 1 July 1883 and a further pastoral lease under the Land Act 1902, the term of which commenced before the creation of the reserve.  It was asserted that in the circumstances any native title in respect of the land had been extinguished.

           That letter precipitated, it would seem, communication between a Case Manager of the Tribunal and the solicitors, as a result of which copies of various documents
were forwarded by the solicitors to the Tribunal.  In particular there was a history of what was said to be dealings affecting the land and copies of material obtained from the Queensland State Archives through the Lands Department.  Among the material forwarded was an Extract noting that an application for a lease in respect of the land had been made by Mr Frank Mann who had held a licence over the land granted on 13 September 1881 and who had applied for a lease of the land on 1 May 1882.  The Extract indicated that a lease had been approved and was dated 1 July 1883.  The material further noted an application "to bring run under the provisions of the Pastoral Leases Extension Act of 1890".  The lease had subsequently been transferred to the Bank of New South Wales.  The term of lease had been extended under the Pastoral Leases Extension Act of 1890 for a period of five years from 1 July 1904.

           Among other documents there was also a lease under the provisions of the Land Act 1902 (Qld) to the Bank of New South Wales of an area of land including the land the subject of the application for a term of forty-two years, computed from 1 July 1904.  That lease instrument was dated 14 November 1907.  The lease showed, in a memorial of transfers and mortgages, a surrender of the land the subject of the present claim registered 1 April 1907.  There was in addition other information enclosed which is not presently necessary to refer to.

           The Tribunal forwarded the material it had received from Blake Dawson Waldron to the Carpentaria Land Council for comment.  On 15 July 1994 the applicants, through the Carpentaria Land Council, made extensive submissions.  Those submissions asserted that the Registrar in the circumstances was required to accept the application.  It was asserted also that in any event the circumstances disclosed did not operate to extinguish the applicants' title.

           On 12 August 1994 the Registrar, in accordance with s63(1) of the Act, formed the opinion that prima facie the claim could not be made out.  That subsection provides as follows:

           "If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion:

 

           (a)that the application is frivolous or vexatious; or

 

           (b)that prima facie the claim cannot be made out."

           Being of the opinion that, prima facie, the claim could not be made out, the Registrar, acting in accordance with s63(2), referred the application to the President.  As O'Loughlin J points out in The Northern Territory of Australia v Lane (unreported, 24 August 1995 at 9), the Registrar under ss63 and 64 has little room to manoeuvre.  The Registrar has no power to reject an application but must accept it, unless of the opinion referred to in s63(1).  In the result the President came under an obligation to act under s63(3).  That section, which is important to the grounds of appeal on adjectival matters, reads as follows:

           "If the presidential member is of the same opinion, the presidential member must:

 

           (a)advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and

 

           (b)if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and

 

           (c)if the applicant does not satisfy the presidential member - direct the Registrar not to accept the application."

           After considering the matter the President noted that he was of the same opinion as the Registrar and on 18 August 1994 advised the applicants in writing of that fact.  His ground for so doing was that the native title claimed had been extinguished by the grant of a pastoral lease over the land in 1883.  He advised the applicants that they would be given a reasonable opportunity to show that a prima facie claim could be made out.  He also invited the first and second respondents to make submissions.  After a preliminary meeting had been held in Brisbane on 25 August 1994 it was agreed that
submissions should be made by or on behalf of both the applicants and the first and second respondents as to the nature of the test to be applied by the President and the issues to be addressed.  Subsequently written submissions were lodged and oral argument heard.

           On 15 September 1994 the President issued his "Reasons for Ruling in Relation to Criteria for Acceptance of a Native Title Determination Application".  I shall refer to those reasons in more detail later.  At the end of those Reasons the President expressed certain conclusions as follows:

           "1.The Tribunal is an administrative body.  Its Members and the Registrar of Native Title perform administrative functions when they make decisions under the Act.

 

           2.  In construing the Act the Members and the Registrar must apply the same rules as would be applicable in a court of law.

 

           3.  Section 63 is to be construed according to the ordinary meaning of its words and having regard to the underlying purpose of the Act.

 

           4.  The Registrar must accept an application which complies with the formal requirements of s.62 unless of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out.

 

           5.  A claim prima facie cannot be made out if at first sight or as a matter of first impression it could not succeed.

            6.   The applicants are not obliged to lodge evidence in support of the application to make out a prima facie case.

 

            7.   The Registrar may, but is not obliged to, make inquiries or receive information to determine whether it can be said at the outset that a claim could not be made out.  These inquiries may include land tenure and land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective.

 

            8.   The Presidential Member to whom an application is referred by the Registrar will apply the same test as the Registrar applies under para.63(1)(a) in deciding whether or not he or she is of the same opinion as the Registrar.  The Presidential Member may, however, find that prima facie a claim cannot be made out on grounds other than or additional to those relied upon by the Registrar.

 

            9.   An applicant who is invited, under s.63(3), to show the Presidential Member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title.  It does not require production of the evidence itself.

 

           10.For the purpose of showing that a prima facie claim can be made out it is not necessary for the applicant to show that it has evidence to negative extinguishment by legislative or executive act.

 

            11.  The Presidential Member may have regard to evidence of extinguishing events in determining whether a prima facie claim can be made out.

 

            12.  The Presidential member in deciding whether a prima facie claim can be made out can form a concluded view on a question of law which, if decided
one way would be fatal to the application.

 

           13.The issues to be addressed by the Presidential Member in deciding whether a prima facie claim can be made out are not limited to those upon which the Registrar formed the opinion that prima facie a claim could not be made out.

 

           14.The issues to be addressed by the applicants for the purpose of showing that a prima facie claim can be made out will be:

 

            (a)the existence or availability of evidence capable of justifying a finding (extinguishment apart) that native title exists;

 

            (b)the effect of the known land tenure history on the continuance of native title.

 

           15.The issues referred to in the preceding paragraph to not require consideration of activities under the pastoral lease or the camping and water reserves."

           His Honour then sought submissions on substantive issues.  As his Honour's ultimate Reasons for Ruling on acceptance of the application indicate, extensive written submissions were delivered with "thousands of pages of supporting documents".  The submissions went both to the question of the existence of the applicants' native title in respect of the land, apart from the issue of extinguishment, and the question whether the title claimed had indeed been extinguished.  His Honour dealt with the matters raised in submissions in the Reasons he ultimately delivered.  He found that the applicants had demonstrated the existence or
availability of evidence which might be capable of justifying a finding that "if not extinguished by prior legislative or executive Act, native title exists on the land the subject of the application".  However, in accordance with the procedural conclusions already referred to, his Honour proceeded to consider whether any such title had been extinguished.  He found that under common law principles native title had been extinguished by either the pastoral lease granted over the land in 1883 or that said to have been granted in 1905.  He thus directed the Registrar not to accept the application.  It is that decision from which the applicants appeal.

THE APPLICANTS' SUBMISSIONS ON THE PROCEDURE ADOPTED

           The applicants submitted that the process adopted by his Honour had miscarried.  In general terms the submission, as developed in oral argument before us was that the learned President went beyond the task imposed upon him by s63(3) and in fact determined, at least as regards extinction, the issues between the parties, rather than merely forming the satisfaction that the applicants had been unable to make out a prima facie claim.  Adopting the system of numbering issues by the applicant, four specific submissions were made:

*         ISSUE 1 - The President erred in hearing argument from the first and second respondents and in treating them as parties to the issue arising before him under s63(3) of the Act.

*         ISSUE 2 - The President was confined by s63(3) to forming the same opinion as the Registrar had done and on the same subject matter or grounds which the Registrar had considered.  In considering other grounds, that is to say the issue of continuing traditional connection, his Honour had exceeded his powers.

*         ISSUE 3 - The President exceeded his powers by forming a "concluded view" upon an issue of law, namely, that of extinction of the applicants' native title.  As a matter of construction of s63, it was submitted, the President should not have gone beyond forming a view on legal issues.

*         ISSUE 4 - To the extent that s63 properly construed entitled the President to form a concluded view on the legal issues which his Honour saw, s63(3) conferred upon the Tribunal, acting through the President, judicial power and so was in conflict with Ch III of the Constitution.

           This last issue was raised by a proposed amendment to the notice of appeal and, in the circumstances, required the leave of the Court.  The application for leave and the ground itself were argued at the same time, the Court announcing that it would give its decision on the application
for leave at the same time as delivering its reasons on other matters argued before it.

           Before dealing with these issues it is necessary now to set out in summary form other relevant provisions of the Act.

THE SCHEME OF THE ACT

           It was never the purpose of the Act either to define native title or the circumstances which might extinguish it.  As the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ pointed out in State of Western Australia v The Commonwealth (1994-5) 128 ALR 1 at 36, the Act incorporates common law concepts of "native title" into the definition of that expression in s223(1).  That case held, that the Act was (with the exception of s12) constitutionally valid.  The joint judgment summarised the operation of the Act as follows (at 36):

           "Under the common law, as stated in Mabo (No 2), Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown.  The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it
inconsistently with enjoyment of the native title.  Three aspects of the operation of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title."

           The significance of the Act, for present purposes, is to be found in the role given to the Tribunal and the consequences which flow from the acceptance of an application made by the Tribunal in accordance with s61(1) and s13(1) for a determination of native title.

           Contrary to what may be a public misconception, the Tribunal is given no function to determine, in the case of contest, whether native title exists in respect of a particular area of land or water.  Such contested applications are to be determined by courts either in proceedings commenced by native title claimants or on reference from the Tribunal to this Court where the processes of mediation which the Act prescribes fail to secure agreement as to the existence of native title.

           This is not to say that the Act does not confer valuable rights upon a claimant whose claim has been accepted either by a Registrar initially or on the direction of a
Presidential Member under ss63(3) and (4).  Of practical significance in the present case is the right to negotiate with respect to the mining titles mentioned later in these reasons.

           Acceptance of an application may metaphorically be said to be the gateway into the Act by an applicant for native title.  Section 65 of the Act confers upon the Registrar or President, acting under s63, the powers set forth in ss155-159 of the Act.  Those powers include the taking of evidence on oath or affirmation (s156(1)), the power to summon persons to appear before it and to give evidence or to produce documents (s156(2)), the right of "a party" to call witnesses (s156(3)), and the power to permit witnesses to be examined or cross-examined (ss156(4) and (5)).

           If an application is accepted, the Registrar is directed to give notice of it to all persons whose interests may be affected by a determination in relation to the application: s66(1)(a).  That requirement extends to notifying both the Commonwealth and the State or Territory in which the land is situated.  Persons who are affected may then become parties to the application upon notification to the Registrar (s68(2)), subject to a power in the Tribunal, if necessary, to decide whether relevant interests are affected (s69(1)).  Where an application is unopposed; the Tribunal is satisfied "that the applicant has made out a prima facie case for a
determination"; and the Tribunal considers a determination to be just and equitable in all the circumstances, the Tribunal may make a determination in or consistent with the terms sought by an applicant for native title (s70(1)).  Likewise if an agreement is reached between parties to an application on the making of a determination, the Tribunal is obliged to make a determination consistent with the terms agreed (s71).

           In other cases, that is to say where no determination has been made under ss70 or 71, a procedure of mediation is required by the Act: (s72).  Agreement between the parties, following mediation, will likewise lead to a determination of native title under s73 of the Act.  If no agreement be reached so that no determination has been made under any of ss70, 71 or 73, it is the obligation of the Registrar to forward the application to this Court for decision: s74.  Exclusive jurisdiction is then conferred upon this Court under s81 to hear and determine the application.

           Directions are given by the Act, both as to the manner in which in the Tribunal is to proceed and the manner in which this Court is to proceed in the tasks respectively assigned.  Thus s109(1) requires the Tribunal to "... pursue the objectives of carrying out its functions in a fair, just, economical, informal and prompt way".  In so doing it must "take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders": (s109(2)) and
is not "bound by technicalities, legal forms or rules of evidence".

           Section 82 provides in similar terms in relation to proceedings in this Court.

           Some assistance in the present case may also be obtained from the provisions of s78 which oblige the Registrar to give such assistance as the Registrar considers reasonable to aid in the preparation of applications and accompanying material: s78(1).  That assistance may include the provision of research services or the conducting of searches: s78(2).

           The Act establishes both a Register of Native Title Claims and a National Native Title Register.  Each is under the supervision of the Native Title Registrar.  The Register of Native Title Claims is required by s186(1) to contain certain specified information "for each claim".  Section 184 specifies a "claim" to be "a reference to an assertion contained in an application given to the Registrar".  Prima facie this would seem to mean that details of the present claim were required to be inserted in it, whether or not accepted.  To this extent there appears to be an inconsistency between ss184 and 186 on the one hand, and the provisions of s66(1)(b) on the other, which contemplates that it is only upon acceptance of an application that details of the application are recorded in the Register of Native Title
Claims.  This apparent inconsistency is made even more difficult by what is arguably a lacuna in the legislation as to the expunging of entries in the Native Title Register if an application is not accepted.  It is unnecessary to resolve these matters here, although legislative amendment would be desirable to clarify the questions raised.

           Registration has certain consequences, no doubt relevant in a case such as the present.  Where the Government of a State or Territory, inter alia, proposes to grant mining leases or rights to mine, it must notify any registered native title claimant (s29(1)(2)(b)).  Rights are given to native title parties (including in that expression registered native title claimants) to negotiate (see subdiv(b) of Div3 of the Act).  In certain circumstances compensation may be awarded for acts which affect native title.

           In summary, therefore, acceptance of an application for native title will bring into play rights to negotiate in respect of, inter alia, the grant of mining or similar interests, the right to the assistance of the mediation procedure guaranteed by the Act, the rights in cases where agreements exist for the making of determinations (with the concomitant right to participate in inquiries initiated by the Tribunal) and, in the event that the application is not determined by agreement, the right to have the matter ultimately heard directly by this Court.  Conversely it is
necessary to reiterate that the Act at no time contemplates that the Tribunal will make any binding decision on the existence of native title where controversy exists.

          It is against this background that the procedures adopted by his Honour must be assessed.  In so doing it is convenient to deal firstly with the particular submissions made by the applicants and then to return to the general nature of the question which arises for the Presidential Member under s63(3).

ISSUE 1 - Whether the President erred in hearing argument from the first and second respondents and in treating them as parties.

           The submission was that the learned President erred both in deciding to invite the second respondents to make submissions and in deciding and proceeding on the basis that the Registrar may receive and have regard to unsolicited information from third parties in exercising her function under s63(1).

           If s63 of the Act stood on its own there would be much to say for the view that the decision whether a prima facie case could be made out was a matter to be determined solely by reference to the application and materials contained in it without regard to other information including submissions that other interested parties may make.  A moment's reflection, however, tells against this approach. 
Notwithstanding that the application is to be accompanied by an affidavit swearing the applicant's belief in the correctness of the material in the application, it would be possible for an application to be made over land which the Registrar or President knew was the subject of a freehold title which had extinguished the native title, although no reference had been made to the inconsistent title in the application.  The procedure under s63 may be described as a filtering out process.  It is designed to ensure that claims lacking merit will proceed no further.

           Reference to the scheme of the Act, already set out, makes it clear that the Registrar may make inquiries.  Further, the Act, by conferring the powers under s165 upon the Registrar or the President as the case may be, makes it clear that witnesses may be called by either of them and cross-examined.

           As presently advised I doubt that at this stage of the procedure either the Registrar or the President are bound to afford interested parties a right to be heard in compliance with natural justice.  But that is not to the point.  It is one thing to say that there is no right in an interested party to be heard at this stage of the process, it is another to say that the Registrar or President has no discretion, particularly when on notice of interests said to be adverse to the claim, to obtain such evidence as may then be available going to the issue whether the application is frivolous or vexatious or whether prima facie the claim could not be made out.

           It is true that there are no parties to the procedure under s63 in the sense that there will be parties once a claim is accepted and proceeds further.  As already indicated, s68 contemplates that interested persons, once a claim has been accepted, are to be given notice and will become parties.  But that does not preclude the Registrar or the President from obtaining such assistance as may be available before acceptance in answering the statutory question posed by s63.

           There is no suggestion in the Reasons of the learned President that either he or the Registrar treated the first and second respondent as parties in any real sense.  Both exercised powers available to them under s165.  The fact that appeal rights are available to this Court lends no support to the submission.

ISSUE 2 - Whether the President is limited to the same subject matter and grounds considered by the Registrar.

           The question here raised is whether the President was required, in acting under s63(3), to consider only the question of extinguishment (as the Registrar had) or whether he was further entitled to consider the continued connection of the applicants and their predecessors with the land.

           There is some difficulty in understanding the thrust of this submission.  It is true that the Registrar, in forming an opinion that prima facie the claim could not be made out, did so solely by reference to the question whether the pastoral lease granted under the Pastoral Leases Act of 1869 extinguished the native title claimed.  In so doing she placed no reliance on the issue of the applicants' continuing traditional connection.  It is true also that French J proceeded to consider both matters, albeit finding that a prima facie claim could be made out of traditional connection with the land, but for the issue of extinguishment.  It may be remarked that had his Honour confined himself to the question of extinguishment, the outcome would have been the same.  Hence there is much to be said for the view that the issue is really a hypothetical one.

           However, there is, in any event, no substance in the submission.  While s63(3) is predicated on the Presidential Member being of the same opinion as the Registrar, all that means is that, as a preliminary matter, the Presidential Member must form the view whether he or she is of the opinion that the application is frivolous or vexatious or that prima facie the claim can not be made out.  There is no indication in s63(3) that in forming that preliminary view the President is in any way confined.  Certainly the President is not then confined by what the Registrar has done in acting under s63(3)(a).  Once the threshold has passed, the Presidential Member must form himself or herself the view whether the application is frivolous or vexatious or must consider whether a prima facie claim could be made out.  The applicants have shown no error on the part of the learned President proceeding on this basis.

ISSUES 3 AND 4 - Can the President decide a question of law and, if so, does this constitute the exercise of judicial power contrary to Chapter III of the Constitution?

           These two grounds may conveniently be considered together for the one bears upon the other.  If the task imposed upon the Presidential Member under s63(3) involves an exercise by him or her of judicial power, then clearly it would be invalid.  If, on the other hand, two interpretations of the section are open, one involving an exercise of judicial power and the other not, then the interpretation will be adopted which will save the section from invalidity rather than that which will bring invalidity about.

           It is not necessary, in the present case, to review the authorities concerned with the exercise of judicial power other than by Chapter III Courts.  Suffice it to say that the case law does not support the proposition that in acting under s63(3) the Tribunal is exercising judicial power.

           The duty imposed upon the President under s63(3) does not result in any binding and authoritative decision: cf Huddart, Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330.  No final decision is made which determines or regulates the future rights of the parties.  It is not to the point that a tribunal might make a decision which affects the rights of parties in different interests: cf Shell Company of Australia v Federal Commissioner of Taxation [1931] AC 275.  No question of judicial determination of issues of fact or law arises: cf R v Davison (1943) 90 CLR 353 at 369.  No question arises of enforcement of a decision: cf Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1.

           The decision whether or not to accept an application in the context of the Act is the quintessential exercise of administrative power.  That decision and the question whether a prima facie case exists, involve no determination of native title as between subjects.  No question of issue estoppel, for example, could possibly arise: cf Administration of Papua and New Guinea v Deara Guba (1972-3) 130 CLR 353 at 453 ff per Gibbs J, Thrasyvoulou v Secretary of State for the Environment & Ors [1990] 2 AC 273 at 290.

           The mere fact that in the course of arriving at an administrative decision a person not exercising judicial power must arrive at a view of the law, does not involve that person exercising judicial power.  And it is not to the point that the person making the administrative decision happens to be a judicial officer: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584.  It is unnecessary to consider in the present case whether if an exercise of judicial power were involved the right of appeal conferred by s169(2) would suffice to save the situation: cf Harris v Caladine (1991) 172 CLR 84, Shell Company of Australia v Federal Commissioner of Taxation (supra at 294) and Federal Commissioner of Taxation v Munro (1926) 38 CLR 153.

           Contrary to the applicants' submission, it was not the fact that the Human Rights and Equal Opportunity Tribunal could make a decision that brought about the invalidity in Brandy, it was the provisions of that legislation which went to the enforcement of the Tribunal's decision which led to the Tribunal's determinations being unenforceable.

           There may be some analogy with committal proceedings.  A decision whether or not to commit a person for trial will have very serious consequences to a person so committed.  It may be necessary for a Magistrate to reach views on various questions of law in the course of determining whether a prima facie case has been made out.  But such proceedings do not involve an exercise of judicial power: R v Murphy (1985) 158 CLR 596 at 616-8.  Likewise the role of the Registrar of Trademarks in registering a trademark involves no exercise of judicial power: R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 9-10 per Jacobs J with whose judgment Stephen and Mason JJ agreed.

           Senior counsel for the applicants conceded that his Honour was entitled to form a view of the law in performing the task conferred upon him under s63(3).  However, it was submitted that his Honour went beyond so doing to resolve "at the threshold" questions of law and to reach, what in one passage of his Reasons his Honour referred to as, "a concluded view".  Too much may be read into the words "a concluded view".  All that his Honour was suggesting was that his Honour had reached a view on the law which operated to negate a prima facie claim of the applicants.  That view was his Honour's conclusion.  But in so forming that view his Honour was not deciding any issue of law.  It follows that the grounds of appeal relied upon are not made out.

THE GENERAL NATURE OF THE PROCEDURE ADOPTED BY HIS HONOUR

           The President in his Reasons expressed the view that an applicant must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title.  With that test the applicants had no quarrel.  Underlining, however, the applicants' submissions as to the procedure adopted by his Honour is a more substantial matter.  It is whether the manner in which his Honour approached the issue before him and in particular by considering evidence both on continuous attachment and extinction which was voluminous and submissions which were, to say the least, lengthy, went so far beyond the process contemplated by s63(3)
as to amount to error.  There is some substance in this submission.

           It must be recalled that the inquiry under s63(3) exists in the context of determining whether an application is to be accepted.  The legislation contemplates that inquiries into and determinations of the existence of the title claimed will follow later.  Disputed claims will not be decided by the Tribunal but by this Court, if the matter is referred to it under the Act, or in proceedings at common law.  Notwithstanding the injunctions upon the Tribunal to act efficiently and economically, the Act does not contemplate the full scale litigation which his Honour's calling for evidence and submissions brought about.  This does not in any way reflect upon his Honour but rather upon those who made submissions and advanced evidence.  The matter seems to have proceeded on the basis, in large part, that the real issue before the Tribunal was not whether a prima facie claim had not been made out by the applicants, but whether the applicants' case should ultimately succeed or fail.

           There may be a difference in language between the test to be applied in s63(3) (whether a prima facie claim can be made out) and the test later to be applied by the Tribunal, for example, in the case of unopposed applications, by s71(a) of whether a prima facie case can be made out.  If so, that difference in language may not be accidental.  If there be a difference it is clear that an applicant, to achieve acceptance of a claim, does not have to make out a prima facie case.  The process is concerned only with what is then a claim.

           There is a danger in endeavouring to paraphrase the test in s63(a).  A new test should not be substituted for that which the legislature has enacted.  The words "prima facie" in their context bear their ordinary usage.  The Macquarie Dictionary 2nd revised Ed, defines "prima facie" as meaning at first appearance; at first view, before investigation".  The Shorter Oxford English Dictionary offers the definitions "at first sight; on the face of it ... arising at first sight; based on the first impression".

           As these definitions suggest, the issue to be determined under s63(3) is not an issue to be determined after a full investigation of all the circumstances.  While the powers conferred upon the Registrar and Presidential Member by ss65(1) and (2) respectively permit investigation and the calling of witnesses and their examination and cross-examination, it does not follow that those powers must or even should be exercised in every case.  If an application has been lodged which is full and complete, the procedure under s63(3) will generally require that the question whether a prima facie claim can be made out be determined on the face of the claim itself.  However, in a case where the Registrar has notice of other facts, as in the present case, (whether that notice has come about by the intervention of other parties or through searches made by the Registrar) the Registrar or President will not be confined to the facts appearing in the application.  He or she may go outside the application but should not engage in a full scale trial of the merits.

           The test in s63(3) of "prima facie claim" probably adds something to the alternative test of "frivolous or vexatious".  A claim for native title disclosing an inconsistent freehold grant might well be rejected on the grounds that it is frivolous or vexatious.  Certainly the existence of such an inconsistent title would suffice to enable the Presidential Member to decide that a prima facie claim could not be made out in the circumstances.  Perhaps all that can be said about the words in s63(3) is that they require a determination of whether the applicants' claim can be made out in a prima facie way, for the ultimate question, at this stage, will be whether the applicants have a bona fide claim which has some chance of success.

           Where conflicting factual matters are raised, it will not be for the Tribunal to resolve those conflicts.  Rather, the Tribunal will be entitled to accept the version of the facts asserted by the claimant.  Where more than one inference is available to be drawn, the Tribunal should draw the inference most favourable to the applicants.  If a question of law arises which depends upon facts being found, it will ordinarily not be appropriate for the Tribunal to proceed to determine that issue of law.

           However, in my view this does not mean that the Tribunal was required, as a matter of law, to avoid altogether having a view on the law.  To take the simplest case, if an application revealed the existence of an inconsistent fee simple grant, the Tribunal, in forming the view that a prima facie claim could not be made out, would be applying a view of the law, consistent with that expounded in Mabo (No 2) that the grant of an inconsistent freehold title operated to expunge the native title.  Once it is accepted that the Tribunal can form a view on matters of law, at least where the factual basis for the legal question arising is not in dispute, it is difficult to draw a line.  Analogies can be drawn both to interlocutory questions of whether an arguable issue arises in a claim for interlocutory relief and to strike out applications.  Such analogies will not be perfect because they arise in the exercise of judicial rather than administrative power.  It is instructive, however, that in applications for interlocutory injunctive relief, a court may determine questions of law: Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd [1985] 1 NSWLR 545 at 549 per Young J, Barclay Mowlem Constructions Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451.  This is
not to say that in such applications a court will or must do so.

          Likewise in strike out applications.  In conformity with what was said by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-30, there will be cases where legal argument of an extensive kind may be necessary.  The caution uniformly enunciated in strike out cases that great care must be exercised in striking out proceedings, recently echoed by Toohey J in Webster v Lampard (1993) 177 CLR 598 at 619 is also relevant to a proceeding under s63(3).  The legislature has conferred rights upon a claimant for native title whose claim has been accepted.  Those rights include, subject to matters discussed earlier in this judgment, the right to negotiate, the right to mediation and the rights, in certain cases either unopposed or where agreement is reached, to determinations.  The President should not be quick to determine that a prima facie claim can not be made out and thereby deny those rights to an applicant unless it is clear that the claim is one which is frivolous or vexatious or can not be made out.

           As will be seen in the consideration of the legal matters raised both before the President and before us, very complicated issues indeed were raised.  These included the nature of a pastoral lease in Queensland; whether there was a limitation upon the power of the Queensland Parliament in the granting of pastoral leases and, if so, whether the applicants could bring their case within that limitation; questions of whether leases were granted when approved or only when issued and, if the latter, whether leases were in fact issued; and the effect of the Pastoral Leases Act 1904.  These issues necessarily had to be resolved before a consideration arose as to whether a pastoral lease or pastoral leases, in the circumstances, operated to extinguish the applicants' native title as claimed.  The learned President, in my view, would not have been in error in leaving these matters to be determined where they properly should be - determined by a court in proceedings between the applicants and the second and/or first respondent.

           However, on balance I do not think it can be said that in proceeding to determine what may be referred to as "pure issues of law", that is to say, issues of law not depending upon facts not yet found, it could be said that his Honour erred.

           As will be seen, the question whether a lease ultimately issued in 1907 with a term dating back to 1904, was effective to extinguish native title was such an issue.  No factual question arose.  In my view no error of law was made by his Honour in considering whether that lease operated to extinguish the applicants' title as claimed.  On the other hand, as will be seen, the resolution of the question whether what his Honour referred to as "the 1883 pastoral lease" operated to extinguish the applicants' claims raised the factual issue of whether an instrument of lease had been issued to the then holder.  While no instrument of lease had been located, the time of application is a very early stage of the proceedings indeed to conclude that no lease in fact issued.  In my view, his Honour went beyond the process contemplated by s63(3) in forming a view whether this "lease" operated to extinguish the applicants' title.

           It is appropriate now to turn to matters going to the issue of extinction.  The applicants' submissions may be summarised as follows:

*         A pastoral lease as issued in Queensland gives only a qualified right of exclusive possession or alternatively a right of pasturage and is neither a lease at common law nor excludes the rights of Aboriginal people to exercise their rights over the land.  Accordingly a pastoral lease does not operate to extinguish native title.

*         In any event leases, whether pastoral or otherwise, do not operate to extinguish native title and nothing in Mabo (No 2) requires the conclusion that they do.

*         The so-called 1883 lease was not issued, with the consequence that no lease ever became effective so as to affect the common law rights of the applicants.

*         If any lease was granted, notwithstanding the non-issuance of an instrument of lease, there should be implied in it a reservation preserving Aboriginal rights and thus the claimed native title.

*         If a lease in fact issued it was conceded by all parties that such a lease would have contained an express reservation in the form then current in favour of certain limited rights of access to Aboriginal people.  A lease in such a form, it was submitted, did not extinguish the applicants' claimed title.

*         The 1904 lease was effective only as and from the time it issued in 1907.  By that time the land affected by the applicants' claim had become a reserve and hence the 1907 lease could not have extinguished the applicants' title.

*         If the 1907 lease in fact became effective in 1904, being a pastoral lease it gave no right of exclusive possession and thus was not inconsistent with the applicants' claimed native title.

*         In any event there should be implied into any 1904 lease, if such were effective, reservations in favour of Aboriginal traditional interests in land such that the lease should not be held to extinguish the applicants' title.

*         The power of the Parliament of Queensland was limited so as not to authorise the enactment of laws contrary to promises or engagements previously made.  There were, it was submitted, promises or engagements to protect Aboriginal rights and hence the State of Queensland had no power to legislate contrary to the pre-existing promises or arrangements which operated in favour of protecting the applicants' claimed title.

           To understand the various submissions it is necessary to outline the events which the respondents asserted extinguished the applicants' native title.  Most of these events are matters of public record and are not in dispute between the parties.

SUMMARY OF DEALINGS SAID TO AFFECT THE LAND THE SUBJECT OF THE APPLICANTS' CLAIM

           The first dealing with the land the subject of the claim was the grant of a licence in respect of Bauhinia Vale West Number 1, covering the period from 15 March 1880 to 14 November 1881.  Details of the licence entered in the Register of Runs show the licence as having been granted to a
Mr Frank Hann.  The entry in the register shows the licence was granted on 18 November 1881 by the Commissioner of Crown Lands Burke pursuant to the Pastoral Leases Act 1869 (Qld).

           Attempts to locate any instrument of licence in respect of the grant had been unsuccessful, although as his Honour observed this was not unusual as such instruments were not always issued.

           The form of licence set out under Schedule C of the Act was a licence "to occupy for pastoral purposes" for the term of one year.

           His Honour considered the question whether the issue of a licence instrument was necessary for a licence to be effective, holding that it was not.  His Honour also considered the nature of such a licence and whether it would operate to extinguish any subsisting native title.  It was not necessary for his Honour to consider these issues to any great extent because his Honour's conclusion did not depend upon the licence working an extinguishment of the claimed native title.  Nor was the argument advanced before us that we should regard the licence as expunging the applicants' title.  Rather, his Honour considered that if the grant of such a licence did interfere with the rights and interests of native title holders, that  interference was of a temporary and limited
nature and did not operate permanently to extinguish native title.

           Subsequently the Register of Runs in the pastoral district of Burke disclosed that Mr Hann, on 1 May 1882, applied for a pastoral lease over the same area.  A notation on the Register read:

           "CCL form of Applic for Lease and recommending no lease be granted till boundaries surveyed."

           A subsequent entry showed "date of lease 1st July 1883".  The grant of the lease was said to have been approved by Executive Minute on 27 September 1882.  A search of records failed to locate any instrument of lease.

           A copy of the minute of the proceedings of the Executive Council meeting of 27 September 1882 included the following item:

           "Schedule of Runs for approval of Lease:

 

           His Excellency The Governor, at the instance of the Honourable The Secretary for Public Lands lays before the Council a Schedule of Runs situated in the unsettled districts and recommends that the right of Lease be approved...".

           The entry bears an initial in the left hand margin under the word "confirmed".  The schedule referred to in the
minute could not be located but his Honour was satisfied that it should be inferred that the right to lease had been approved on 27 September 1882 in respect of the run known as "Bauhinia Vale West No.1".

           Subsequently on 7 April 1883 there is an entry in the Queensland Government Gazette evidencing the transfer, with the approval of the Government, of Mr Hann's interest in the run to the Bank of New South Wales.  A further document comprising a "Register of Persons who are Lessees of Runs" was said by his Honour to show Mr Hann as lessee of Bauhinia Vale West Number 1 and the Bank of New South Wales as transferee.

           It was common ground between the parties that at the relevant time had a lease issued to Mr Hann it would have contained a reservation of the same kind as that which was contained in a lease for the Lilydale run adjacent to the land the subject of this claim, which had been granted for a term of twenty one years commencing 1 July 1879.  That lease had in fact not issued until April 1900.  When issued, as his Honour's judgment observed, it contained a provision for forfeiture if the lessee:

           "shall wilfully deprive or attempt to deprive, the Aboriginal or other Inhabitants of Our said Colony, or any of them, of the privileges hereby reserved to them...".

           The reservation expressed in the lease was in the following terms:

           "and we do further reserve to the Aboriginal Inhabitants of Our said Colony such free access to the said Run or parcel of Land hereby demised, or any part thereof, and to the trees and water thereon, as will enable them to procure the animals, birds, fish and other food on which they subsist...".

           His Honour found the 1883 lease had extinguished the claimed title.  In reaching this conclusion, his Honour decided that the grant of a lease under the Pastoral Leases Act 1869 took effect, irrespective of the issue of an instrument of lease.  His Honour held that no reservation of the kind contained in the Lilydale run lease should be implied as a term of a lease granted under the Pastoral Leases Act 1869 because, having regard to the fact that the Act authorises no such reservation and the implication of such a term would not comply with the tests laid down in cases such as Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347.  His Honour found further that a lease granted under the Pastoral Leases Act 1869 should be taken to be a grant of exclusive possession and unqualified by any reservation in favour of Aboriginal people.  Having so found his Honour felt bound by what had been said in the various judgments in Mabo (No 2) to conclude that any subsisting native title had been extinguished.  In so doing his Honour did not consider what the situation would have been had a written lease instrument been issued containing a reservation in the form of that contained in the Lilydale run lease.  This, in part, appears to have been a consequence of the fact that the claimants adopted, as their primary argument, the fact that the 1883 lease had never issued with the consequence, it was said, that there was no valid grant which was capable of extinguishing native title.

           I should say at this point that at a preliminary stage where all inquiries may not have been made, it was incumbent upon his Honour to make such inferences as may reasonably have been made in favour of the applicants' case.  In so far as a transfer of the lease was taken by the Bank of New South Wales (whether as mortgagee or beneficial owner is unknown), it may reasonably be inferred that the Bank would have ensured that a lease had in fact issued, if the issuing of a lease was necessary to the validity of the term.  Once such an inference is made, however, a question would then arise as to whether the reservation which, it was accepted, would then have been contained in the issued lease operated to preserve the applicants' title.  This is a question of considerable difficulty.  It would require findings of the nature of the claimed title and whether, and if so, to what extent there was an inconsistency with the claimed title.

           Having regard to these possible inferences and open facts, it was, in my view, inappropriate for the learned President to have formed the view that the present was a case where the applicants could not make out a prima facie claim, having regard to the 1883 lease.  In not doing so, in my view, his Honour went beyond the task required by s63(3) and was in error.

THE 1904 LEASE

           The next event affecting the land occurred on 18 December 1903.  On that day the Bank of New South Wales applied to the Minister for Lands for classification of the Bauhinia Vale West Number 1 Run by the Land Court under PtIII of the Land Act 1902.  That Act, in s6, enabled an existing pastoral lessee, prior to 1 January 1904, to make application in writing for the classification of a holding into one of four classes.  A Class Four lease was for a term of forty two years.  It will be necessary to return to the legislative background of these provisions later.  The application was acceded to and notification of the classification appeared in the Queensland Government Gazette of 30 January 1904.

           At that stage the lease originally granted to Mr Hann (whether or not issued) and transferred to the Bank of New South Wales which had been for a term of twenty one years from 1 July 1883, was due to expire on 30 June 1904.  Accordingly, on 27 June 1904 the Bank wrote to the Under Secretary of the Department of Public Lands requesting that
the term of that and other leases due to expire on 30 June be extended under the Pastoral Leases Extension Act 1890.

           On 7 July 1904 the Land Court recommended extension for a period of five years from 1 July 1904, the rent to be at the same rent as was payable on 1 July 1904.  The recommendation of the Land Court was submitted by the Secretary of Public Lands to the Executive Council and on the evidence the extension was approved.  A notation of it appears in the entry in the Register of Runs relating to the land.

           On 28 July 1904 the Bank gave a notice under s8 of the Lands Act 1902 that it elected to take advantage of the provisions of that Act with respect to the run.  That application was of special significance to the issue before the Tribunal.  Section 8 of the 1902 Act was in the following terms:

           "(1) At any time within six months after such publication of the classification of a holding the lessee, upon giving notice to the Minister that he elects to take advantage of this Part of this Act, and upon surrendering the existing pastoral lease of such holding, shall be entitled to receive a lease from the Crown under this Part of this Act of the lands comprised in such holding.

 

           (2) Every notice of election shall be in the form in the Second Schedule to this Act or to the like effect, and when received by the Minister shall be irrevocable, and shall bind both the lessee and his successors in interest and the Crown.

           Every such notice, or an abstract thereof, shall be published in the Gazette.

 

           (3) Such notice shall have the effect of releasing the Crown from every claim for compensation and every claim or right whatsoever by or on the part of the lessee with respect to such holding and any land held therewith at any time under a right of depasturing which he might have had or enforced if such notice had not been given.

 

            (4) The term of every such lease shall commence on the first day of January or the first day of July nearest to the date of the publication of such notice or abstract thereof in the Gazette, and the surrender of the existing pastoral lease shall take effect as from the commencement of the term of the new lease.

 

            (5) In the case of two or more contiguous holdings held by the same lessee, the whole of the lands comprised therein may, if the Minister thinks fit, and the lessee agrees thereto, be included in one and the same lease, and in that case shall thereafter, for all the purposes of this Part of this Act, be deemed to be and shall be dealt with as one holding.

 

           (6) A lease shall only be granted after the payment of all rent payable under the surrendered pastoral lease."

           A notice of the Bank's election was published in the Government Gazette of 13 August 1904.

           On 18 October 1905 the Under Secretary for Lands wrote to the Bank asking if it wished to consolidate the 40 runs then leased to it into one lease.  The Bank acquiesced but no lease in fact issued until 14 November 1907.  When it did the lease was expressed to be for a term of forty-two
years from 1 July 1904.  There was no reservation in favour of Aboriginal persons in it.

           However, on 22 March 1907 the Bank surrendered to the Crown out of its holdings an area of 278 square miles including the land the subject of the present claim.  That surrender took effect before the issue of the 1907 lease.  A memorial to the instrument of lease showed that as from 1 April 1907 the area leased had been reduced consequent upon the surrender.

           On 8 June 1907 a proclamation in the Government Gazette reserved for camping and water purposes an area of 610 acres at the Ten Mile Water Hole, that area being the land the subject of the present application.

           It may be observed that no facts were relevant to determining the question whether the 1907 lease operated to extinguish the claimed title.  There were, however, very substantial issues of law, as both the Reasons of French J and the submissions made to us revealed.  However, I do not think that the mere fact that issues of law may be complicated necessarily precluded the President acting under s63(3) from forming a view upon them and accordingly failing to be satisfied that a prima facie claim could be made out by the applicants.  This is not to say that his Honour would have erred if he had taken the view that it was inappropriate at the early stage the matter had reached to form a view on the matters in question.  In fact his Honour regarded the issues as academic, since he had concluded that the 1883 lease had extinguished the claimed title of the applicants.  However, his Honour proceeded to deal with the issues arising under what his Honour referred to as the "1904 lease" and decide them.  This being the case it is, I think, incumbent upon this Court also to deal with the "1904 lease".  In doing so, however, I should make it clear, should there be any room for doubt, that this Court is considering the question of the possible extinction wrought by the 1904 lease only in the context of s63(3) and not in the context of a final conclusion as to whether the applicants' claimed title had in law actually been extinguished.

           To enable the issues to be understood it is necessary now to trace, as French J did, the history of pastoral leases in Queensland and the relevant statutory provisions before approaching the question whether, having regard to what was said and decided in Mabo (No 2), the "1904 lease" operated to effect an extinction of the applicants' claimed title.

THE HISTORY OF PASTORAL LEASES IN QUEENSLAND

           The acquisition of sovereignty and the reception of British common law is discussed in detail in the judgment of Brennan J in Mabo (No 2).  The disposal of colonial land was originally a matter of royal prerogative.  That prerogative was early exercised by the Governors of the colony who adopted the practice, not merely of granting land but also of promising land, other than by contract of purchase, in advance of a formal grant.  The Waste Land (Claims to Grants) Act 1833 (4 Wm IV No.9) was passed by the New South Wales Legislative Council authorising the appointment of commissioners to investigate and report on claims for grants founded on such promises.  As the cases referred to in the learned President's judgment indicate, the promises themselves did not give to rise to interests in land.

           In 1842 the English Parliament passed the Sale of Waste Lands Act 1842 which removed the royal prerogative to make further promises and established, for the first time, a statutory scheme for the grant of interests in land.  As a dispatch from Lord Stanley to Sir George Gipps dated 15 September 1842 indicates, a significant reason for the legislation being advanced in England lay in the protection of revenue for the colony.  While, as the judgment of Brennan J in Mabo (No 2) demonstrates, the concept of native title was then unknown, there existed considerable concern in England for the aborigines of the colony.  Fifteen percent of the gross proceeds of land sales were set aside "for the benefit, civilisation and protection of aborigines".  Gratuitous grants of land were thenceforth to be illegal and void.  In consequence the Royal Commission authorising the Governor to alienate waste lands on behalf of the Crown, and Royal instructions describing in detail how that power was to be exercised, were superseded.  The power of sale and conveyance of those lands was then vested in the Governor by the authority of the English Parliament.

           Section 20 of the 1842 Act, described by Isaacs J in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 450 as "a Parliamentary fetter on the existing absolute power of the Crown" authorised, however, the fulfilment of any existing promises or engagements:

           "in cases where such Contracts, Promises or Engagements shall have been lawfully made before the Time at which this Act shall take effect in any such Colony."

           In 1842 there was passed the Australian Constitutions Act of that year which conferred legislative authority upon the Legislative Council of New South Wales.  That Act, however, did not extend to authorise the disposal of Crown lands.

           The subsequent Imperial Act of 1846, the Sales of Waste Lands Act 1846, amended the 1842 Act to authorise the grant of leases or licences to occupy crown lands for terms not exceeding fourteen years.  Section 6 of that Act authorised the making of rules and regulations by Order in Council relating to the occupation of crown lands.  Section 4 made it an offence (unless claiming through an authorised sale or demise to occupy any waste lands) to reside on or erect huts or buildings upon such lands; to clear, enclose or cultivate them or to pasture any cattle upon them.  Nothing in that Act suggests that the demises of which it spoke were in any way limited so as to grant less than the rights of exclusive occupation consistent with our understanding today of the rights conferred upon a lessee.  The 1846 Act authorised, in s6, the making of Orders in Council regulating the occupation of Crown lands.

           In 1847 an Order in Council of 7 October 1847 divided New South Wales into three districts, designated respectively as settled, intermediate and unsettled.  The Governor was organised to grant leases in each of the three districts.  By ChII s1 of the Order in Council the Governor was authorised to:

           "grant leases of runs of land within the unsettled districts ... for any Term or terms of years, not exceeding fourteen years in duration, for pastoral purposes, with permission, nevertheless, for the lessee to cultivate so much of the lands respectively comprised in the said runs as may be necessary to provide such grain, hay, vegetables or fruit for the use and supply of the family and establishment of such lessee, but not for the purposes of sale or barter; and so, nevertheless, that such leases shall in no case prejudice, interrupt or interfere with the right of the Governor or other officer for the time being administering the Government of the said Colony to enter upon any of the lands comprised in the said leases for any
purpose of public defence, safety, improvement, convenience, utility or enjoyment, agreeably to the provisions for those purposes contained in the 9th section of the second chapter of this order in council, or otherwise."

           Occupants of Crown lands in licensed occupation for at least one year were given the right to demand leases of runs.

           Provision was also made for leases of intermediate lands on the same terms and conditions, save that the term was to be not greater than eight years and for settled lands for terms not exceeding one year.  The latter were referred to as being "exclusively for pastoral purposes".

           Reports of the Commissioners of Crown Lands in New South Wales of the time indicated concern for Aboriginal people.  The creation of reserves was discussed.  Writing in a dispatch of 11 February 1848, Earl Grey drew attention to a report of the Chief Protector which observed that unless suitable:

            "reserves are immediately formed `for their benefit, every acre of their Native Soil will shortly be so leased out' and occupied, as to leave them, in `a legal view, no place for the sole' of their feet.  If the occupation of Crown `Lands is to be settled by The Crown' granting a Lease for years, `the Natives will be deprived of all' legal right to hunt over their `own Native land, and according' to the Dicta of certain high legal
`Authorities, may be forcibly excluded' by the lessee, from the tract of `country so leased."

           In reply Sir Charles FitzRoy reported that an instruction had been given to Crown Law Officers to insert in the forms of leases for the occupation of lands beyond the settled districts a provision procuring for the aborigines the rights to which Earl Grey had referred.

           However, it seems that both the Attorney-General and Solicitor-General of the colony were concerned whether there was power to grant access to land in favour of Aboriginal people, at least where a lease had already been granted.  A clarifying Order in Council permitting the insertion of such a condition in leases was requested.  It was suggested that an Order in Council expressly declare that only exclusive pasturage be granted by such leases and access for minerals be reserved for the Crown.

           The suggestion gave rise to another difficulty, namely, whether it would be possible to alter leases granted before the proposed Order in Council took effect.  Those leases had, it was thought, granted exclusive right of possession rather than a mere right of pasturage.  Thus it was proposed that the changes apply only to future leases.

           The Order in Council ultimately signed was dated 18 July 1849.  It authorised the Governor to insert in any pastoral lease thereafter made: "such conditions, and clauses of forfeiture exceptions, and reservations as to him shall seem requisite for the purposes last aforesaid", those purposes being "securing the peaceable and effectual occupation of the lands comprised in such leases, and for preventing the abuses and inconveniences incident thereto."

           The Order of Council was to be of no effect until proclaimed in the colony.  In forwarding the Order of Council to Governor FitzRoy, Earl Grey pointed out his view that the intention of government was:

           "to give only the exclusive right of pasturage in the runs, not the exclusive occupation of the Land, as against Natives using it for the ordinary purposes: nor was it meant that the Public should be prevented from the exercise, in those Lands, of such rights as it is important for the general welfare to preserve, and which can be exercised without interference with substantial enjoyment by the lessee of that which his lease was really intended to convey."

           The New South Wales Constitution Act 1855 18 & 19 Vic. c.54 [1 WD 98] by s2 gave for the first time to the legislature of the colony the power to deal with waste lands. This was expressed to be subject to a proviso in the following terms:

           "Provided, that nothing herein contained shall affect or be construed to affect any Contract or to prevent the Fulfilment of any Promise or Engagement made by or on behalf of Her Majesty, with respect to any Lands situate in the said Colony, in Cases where such Contracts, Promises or Engagements shall have been lawfully made before the Time at which this Act shall take effect within the said Colony, nor to disturb or in any way interfere with or prejudice any vested or other Rights which have accrued or belong to the licensed Occupants or Lessees of any Crown Lands within or without the settled Districts, under and by virtue of the Provisions of any of the Acts of Parliament so repealed as aforesaid, or of any Order or Orders of Her Majesty in Council issued in pursuance thereof."

           An Imperial Act, the Sale of Waste Lands Act 1855 17 & 19 Vic. c.56 [1 WD 99] repealed the Imperial Acts of 1842 and 1846, with the result that the disposition of Crown lands passed wholly to the New South Wales legislature.  Legislatures of the colonies were given power to repeal, alter or amend any Order in Council made under the authority of the 1846 Act.

           An Order of Council in 1859 provided for the Constitution of the Colony of Queensland and gave to the new legislature of that colony power to make laws for regulating the sale, letting, disposal and occupation of the waste lands of the Crown within the colony, but subject to the provisions of the New South Wales Constitution Act 1855 (Imp) and the Australian Waste Lands Act 1855 (Imp) concerning the maintenance of existing contracts.

           That was followed in 1867 by the Queensland Constitution Act of that year.  That Act vested the entire management and control of the waste lands in the colony of Queensland in the legislature, subject to a proviso in terms similar to that contained in the New South Wales Constitution Act in favour of the fulfilment of promises or engagements.

           The first Queensland Act regulating the grant of leases and licences, was the Unoccupied Crown Lands Occupation Act 1860, 24 Vic. No 11.  That Act authorised the grant of licences and leases of "runs".  No implication is to be had from the use of the word "run", it was a defined expression meaning no more than a portion of Crown lands comprised in a licence or lease granted under the Act for pastoral purposes.

           The 1860 Act made no references to reservations for Aboriginal persons, nor did it, except as hereafter noted, suggest in any way that a lease would be otherwise than a grant of exclusive possession.  The Act, however, provided for the reservation of the whole or any portion of a run for public purposes; gave rights to driving horses, cattle, or sheep to depasture on Crown lands, unless enclosed; and authorised the issuing of licences of Crown lands for the purpose of taking timber, gravel etc from them.  The lessee of a run was not to have power to restrict other persons duly authorised by the Government from cutting or removing timber
or building materials, or from searching for metals or minerals within the run.

           In 1863 the laws relating to the occupation of Crown lands for pastoral purposes were consolidated by the Pastoral Leases Act No 27 Vic. 17.  In due course that Act, and subsequent amending and consolidating Acts, were, so far as relevant, replaced by the Pastoral Leases Unsettled Districts Act of 1869, pursuant to which the 1883 "lease" to Mr Hann was granted.  Pursuant to s7 the Government was empowered "to grant leases for pastoral purposes of Crown lands within the unsettled districts" for terms not exceeding twenty-one years on the conditions set forth in that Act.  The Act referred to leases of runs, the latter expression being again a defined expression and meaning no more than Crown land subject to a lease granted under the Act.

           Section 62 of that Act permitted the depasturing of stock by persons driving horses, cattle or sheep along any road within a certain distance of a road.  There were provisions for withdrawing gold fields from leases and the issue of licences to cut timber, remove gravel etc and a restriction on lessees to remove persons authorised by the Government from cutting or removing timber or building materials.

           Next, reference should be made to the Land Act 1897 (Qld) and the Lands Act 1902 (Qld).

           The 1897 Act authorised the Governor in Council, inter alia, to demise for a term of years any Crown lands within the colony of Queensland.  Crown lands were defined as being those lands not dedicated to any public purpose, or subject to any "deed of grant", lease, contract, promise or engagement made by or on behalf of Her Majesty.  Section 12 provided:

           "... The grant or lease shall be made subject to such reservations and conditions as are authorised by this Act, and shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named, subject to the provisions of this Act, the land described in the grant or lease for such estate or interest as shall be set forth in the instrument."

           There was provision for reservations of mines and minerals.

           Section 58 of the 1897 Act provided that an existing tenant could elect to take advantage of the provisions of Part III of the 1897 Act relating to pastoral leases.  On such an election becoming effective, the provisions, inter alia, of the Pastoral Leases Act 1869 ceased to apply to it and the provisions of the 1897 Act become operative.

           The Land Commissioner was authorised by the 1897 Act to issue licences to enter for certain prescribed purposes such as timber getting: s227.  Rights were also given to depasture travelling stock within certain confined areas: s230.  Trespassers were liable to a penalty: s236.

           The 1902 Act permitted the lessee of any holding under an existing pastoral lease to apply in writing to the Minister for the classification of such holding: s6.  The provisions of s8 of that Act have already been noted.  Section 12 set out the various conditions which were to apply to a lease granted under the Act.

WHETHER THE LEASE ISSUED IN 1907 CONFERRED EXCLUSIVE POSSESSION

           It was the applicants' submission that having regard to the history of pastoral leases to which reference has briefly been made, a lease for pastoral purposes was not to be construed as a lease in the ordinary sense of the expression but was sui generis.  It was said that the right conferred was a qualified right of exclusive possession only or perhaps a right of pasturage rather than a right to exclusive possession.  In particular it was said that the rights conferred by a pastoral lease were not inconsistent with native title.  This submission was rejected by his Honour and in my view, correctly, at least so far as the submissions relate to the 1907 lease.

           Whatever may have been the situation at the time of the Order in Council of 1849, that had long since been repealed by the time the 1902 Act came into force.  The 1902 Act must be construed in accordance with its terms.  It uses expressions well known in land law such as "lease", "demise", "term", "surrender", "rent".  It is not expressed in terms granting a mere right of pasturage, whatever those words might ultimately comprehend.  Even the grant of a right of pasturage might be construed as a grant of exclusive possession and thus a lease.

           In O'Keefe v Williams (1910) 11 CLR 171 the High Court considered whether "occupational licences" granted under the Crown Lands Act 1884 and the Crown Lands Act 1895 of New South Wales created a relationship of landlord and tenant existed.  Parenthetically, it should be observed that no actual document recording the "licences" had issued.

           Griffith CJ noted (at 190) that the relationship between the Crown and holders of Crown lands was of a contractual nature, the mutual rights and obligations being governed by the terms of the statute under which the rights arose.  In that case s81 of the Crown Lands Act 1884 had provided, in certain circumstances, that a holder of a run would be entitled to occupy the land in question "for grazing purposes".  It was held that the right of occupation conferred
was exclusive, albeit terminable upon the occurrence of certain defined events.  It was not a mere licence.

WHETHER THE 1902 ACT WAS SUBJECT TO A PROVISO NOT TO AFFECT OR PREVENT THE FULFILMENT OF ANY PROMISE OR ENGAGEMENT

           Reference to the history shortly described above makes it clear that the power to grant leases in Queensland vested in the legislature was always subject to the proviso to s30 of the Constitution Act 1867 which had emanated from the earlier practice of promises made by Governors.

           Two submissions were made by the applicants.  First, that the proviso to the Constitution operated as a limitation of power.  Second, it was said that there existed promises in favour of Aboriginal people which were found to be set out in  sixteen documents to which reference is made by his Honour.  These documents are sufficiently described in the judgment appealed from and I do not repeat that description.

           His Honour held that as a matter of construction the proviso did not operate as a limitation on power.  As to the second submission his Honour said:

           "The materials relied upon indicate a concern on the part of Imperial authorities for the welfare of Aboriginal people in the colonies. ... As to the characterisation of the various expressions in these despatches as a contract, promise or engagement, that characterisation is, in my opinion, untenable.  There are opinions,
observations and statements of what is necessary to be done in order to protect the interests of Aboriginal people.  There is however in my opinion, nothing that amounts to a contract, promise or engagement within the ordinary meaning of those words."

           I do not find it necessary to decide whether the proviso operates as a limitation on power as his Honour held.  That question is the subject of some dispute, cf Williams v Attorney-General (NSW) (1913) (supra at 428 and 454 per Isaacs J, with whom Barton ACJ agreed) and Rusdon v Weekes [1861] 2 Legge 1406 at 1410 and 1415.

           However, the history which I have shortly narrated makes it clear what the promises and engagements, not being contracts, were.  They were promises or engagements made to promisees or engagees, not recommendations made in despatches passing between London and Sydney.  There was no suggestion here of any such promises or engagements.  Like Dawson J in Mabo (No 1) (1988) 166 CLR 186 at 239, I am of the view that any contracts, promises, engagements of the kind referred to in the proviso had long ceased to exist before 1904 and they were not the source of any limitation upon the power of the Queensland Parliament to deal with waste lands.

WHETHER THE 1907 LEASE AS ISSUED TOOK EFFECT IN 1904

           The applicants submit that the 1907 lease could only take effect when issued and not retrospectively to 1904 or, as
his Honour held, on 1 January 1905.  Nothing turns upon whether the relevant commencement date should be 1 July 1904 or 1 January 1905, although I think the better view would be 1 July 1904.

           The substance of the submission was that no interest could vest under a lease until its execution, in this case on 14 November 1907.  By that time the land the subject of the claim had been proclaimed as a reserve for camping and water and was thus excluded from any grant.  Had the case concerned the grant of a lease at common law, the submission would have been self-evident.  However, the question is one of statutory construction of the 1902 Act and particularly the terms of s8.  For the purposes of the discussion I will assume that the Bank of New South Wales was a "lessee", a matter to which I will return.

           Section 8(1) of the 1902 Act contemplates that it will be a pre-requisite to an entitlement to receive a lease from the Crown that an existing pastoral lease will be surrendered.  In the present case it is known that the Bank of New South Wales duly made the election to which subsec(1) of s8 refers.  That election was irrevocable and bound both the lessee and successors in interest as well as the Crown: s8(2).  It had the immediate effect of releasing the Crown from any claim for compensation.

           One comes then to s8(4).  That section provides that the lease which the lessee of the prior holding becomes entitled to receive is to commence on 1 January or 1 July nearest to the date of the publication of a notice.  In the present circumstances that date would be 1 July 1904.  By force of s8(4) the surrender of the prior title takes effect on that day.  That is to say there arises on the date of publication of the notice in the Gazette an entitlement to receive a lease.  That is a statutory entitlement, granted by law, to a lease, in the present case having a term of forty-two years.

           There then arises the question whether the entitlement to lease constitutes an effective grant to the lessee of the former holding, taking effect on 1 July 1904.

           The argument sought to be made distinguishes between entitlement to lease on the one hand and issue of a lease on the other.  In various sections the 1902 Act does refer to the "issue" of leases.  For example, s6(2) refers to a lease "duly issued under this Part" and "a new lease ... duly issued".  Section 9 on the other hand refers to the granting of leases, as does s15(1).

           A review of the Queensland land law, including the 1869 Pastoral Leases Act shows that this confusion had continued for some time.  It seems that although persons were entitled to leases, leases were in fact often not issued.  As Griffiths CJ said in O'Keefe v Williams, to which reference has already been made (at 190):

           "... it is quite immaterial whether a formal instrument of title has been issued or not unless the Statute makes the issue essential."

           A person entitled to a grant was to be treated as a lessee.  This is not surprising having regard to the remoteness of some areas in Queensland at the time and the difficulties which might arise in ensuring that a formal lease "issued" reached its destination.

           I think that the proper construction of the 1902 Act is that there is to be no gap in title.  A surrender is to take place coextensively with the commencement of a new lease and, as a matter of statute, rather than as a matter of common law, the new lease commences in accordance with s8(4) on the first day of January or July nearest the date of publication of the Gazette notice.  It follows therefore, in my view, that irrespective of the "issue" of the 1907 lease, the term of years granted took effect as a lease from 1 July 1904.  The terms and conditions applicable are those set out in the lease actually issued in 1907 which contains no reservations favourable to the applicants and which I have held was a lease in the sense that it conferred a grant of exclusive possession upon the Bank of New South Wales.

DID THE 1904 LEASE EXTINGUISH THE CLAIMED NATIVE TITLE?

           My conclusions lead me to the last question, namely, whether a lease conferring exclusive possession of land for use for pastoral purposes operates to extinguish native title.

           It was submitted for the respondents that the issue was decided by Mabo (No 2).  It may be recalled that in that case a special lease of two acres of land had been granted in 1802 to the London Missionary Society.  There was another lease over two islands for twenty years for the purpose of establishing a sardine factory which had ultimately been forfeited.  That lease contained a special condition that the lessees were not to obstruct or interfere with the use of the Murray Island natives of their tribal gardens and plantations or fishing.  There was an issue as to whether the lease was validly granted.  If it had been, Brennan J suggested that there would have been no room left for the continued existence of rights and interests derived from Meriam laws and customs. Although Brennan J appears to have been of the view that the former lease extinguished the native title, ultimately no final determination was made.  This seems to have been because not all parties interested were before the Court.

           The ultimate orders in the case declared the existence of native title to lands other than the two islands and the land the subject of the lease to the Australian Board of Missions.  However, the case strictly did not decide the
question whether a lease operated to extinguish native title. That this is deliberate appears also from the judgment of Mason CJ and McHugh J at 16.

           The principal judgment in Mabo is that of Brennan J, with whose judgment Mason CJ and McHugh J agreed.  That is not, however, a judgment of the majority of the Court.  Differing views were clearly expressed by the remaining members of the majority, namely Deane and Gaudron JJ, and Toohey J in a separate judgment.

           Some principles appear clearly enough, however, from the judgment of Brennan J and that of Deane and Gaudron JJ.  Native title, while not a common law tenure, is now recognised by the common law and protected by it.  Such rights can be seen, in the language of Brennan J, to be "a burden on the radical title which the Crown acquires" (at 52).  However, the judgments of the High Court recognise that sovereignty carries the power to extinguish those rights and to create in others inconsistent rights.

           Even in the absence of direct authority, it would seem to be the case that rights recognised by the common law, even if not derived from that system of law, like other common law rights could only be extinguished by the express language of a statute or by necessary implication derived from the statute: Sorby v The Commonwealth (1983) 152 CLR 281 per Gibbs CJ at 289, Mason, Wilson and Dawson JJ at 309, Re Compass Airlines (1992) 35 FCR 447 at 454.  This idea appears both in the judgment of Brennan J and that of Deane and Gaudron JJ.  Brennan J (at 64) says:

           "However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive.  This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasised by courts dealing with the extinguishing of the native title of Indian bands in North America."

           There was agreement by the majority of the Court that the grant of a freehold title necessarily operated to extinguish native title.  Once it was extinguished it could not be revived.  The matter depended not on subjective intention but, as Brennan J observed (at 68) on the "the effect which the grant has on the right to enjoy the native title".  At that page his Honour said:

           "If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term.  The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium."

           Later his Honour referred to the grant of interests in land inconsistent with the right to continued enjoyment of native title.

           It is not necessary to explore the applicants' criticism of the judicial difficulty of referring to the granting of a Crown lease as conferring upon the Crown by acquisition a reversionary interest.  The grant of a right of exclusive possession for a term of years is clearly the grant of a right inconsistent with the right of Aboriginal people to enjoy the rights otherwise conferred upon them by their native title.  There may be a question of degree involved if the lease were but for a short term, but that is not the case here.  The 1904 lease took effect for forty-two years and in my view would clearly be inconsistent with the Aboriginal people maintaining their customary rights to enjoy native title.

           The exposition given by Deane and Gaudron JJ is slightly different to that of Brennan J.  Their Honours categorised the rights of common law native title as constituting valuable property and a "burden on the underlying title of the Crown".  Their Honours spoke (at 116) in the context of extinguishment of the necessity for there being a "relevant statute which could properly be construed as evidencing a legislative intent to extinguish the rights of the Murray Islanders under the common law native title ...".

           However, it is clear that Deane and Gaudron JJ were of the view that a lease would operate to extinguish native title.  Thus their Honours said (at 110):

           "The personal rights conferred by common law native title do not constitute an estate or interest in the land itself.  They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.  They can also be terminated by other inconsistent dealings with the land by the Crown...".  See also at 111.

           While these expressions of opinion may strictly be dicta, they are of the highest authority.  I would adopt them.  It follows thus that the grant of a pastoral lease, such as occurred in 1904 in the present case, operated as a grant inconsistent with the rights conferred by common law native title and against the wishes of the native title holders extinguished their rights.  Accordingly I am of the view that French J correctly so held.

           In so holding I reject the submissions made by the applicants that whether native title is extinguished must be a mere matter of fact, that is to say, that an inquiry should be held as to whether the exercise of the native title rights continued unabated despite the grant of inconsistent rights.  I reject also the submission that there is any principle that grants, whether freehold or leasehold could not, of themselves, extinguish native title without payment of compensation.  Both submissions are inconsistent with what is said in Mabo (No 2).  Authorities cited in other jurisdictions in support are plainly inconsistent with the view of the High Court in Mabo (No 2) as regards freehold title and there is no reason why a different principle should operate in respect of leasehold title.

           I would accordingly dismiss the appeal with costs.

I certify that this and the

preceding sixty-eight (68) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:  1 November 1995

Counsel and Solicitors   AR Castan QC with BA Keon-Cohen

for Applicants:              and RW Blowes instructed by

                         Ebsworth & Ebsworth

Counsel and Solicitors   JG Gibson QC with GJ Koppenol

for First Respondent:    and D Mullins instructed by the            Crown Solicitor

Counsel and Solicitors   HP Fraser QC with PL O'Shea

for Second Respondent:   instructed by Blake Dawson Waldron

Counsel and Solicitors   C Wheeler QC with K Pettit

for the State of Western     instructed by the Crown

Australia intervening:   Solicitor

Counsel and Solicitors   D McGill QC with PJ Jeffery

for the Commonwealth     instructed by the Australian

intervening:            Government Solicitor

Dates of Hearing:       5-8 June 1995

Date Judgment Delivered:     1 November 1995