FEDERAL COURT OF AUSTRALIA

Anderson v Wilson [2000] FCA 394

NATIVE TITLE – Native Title Act 1993 (Cth) – Western Lands Act 1901 (NSW) (“the WLA”) – lease in perpetuity the subject of a native title claim (“the Lease”) – separate questions pursuant to O29 r 2 of the Federal Court Rules – whether the Lease conferred on the lessee a right of exclusive possession by virtue of the WLA or regulations made thereunder as in force at the time of the grant of the Lease or one or more of the terms and conditions of the Lease – no facts yet found.

NATIVE TITLE – extinguishment – requirement of clear and plain intention to extinguish incidents of native title – question of whether the Lease gave right to exclude those claiming native title – inconsistency and requirement of identification of extent of inconsistency – whether leases conferred right of exclusive possession involves complex questions of law and fact – not appropriate to finally decide questions until facts found.

NATIVE TITLE – use of early colonial history – whether historical and legislative context is a decisive consideration – relevance of extrinsic material – relevance of size and location of area subject to claim.

Native Title Act 1993 (Cth)

Land Act 1910

Western Lands Act 1901 (NSW)

Crown Lands Consolidation Act 1913

Western Lands (Amendment) Act 1934

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

Brayson Motors Proprietary Limited (In liquidation) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651

Hawkins v The Minister for Lands (1949) 78 CLR 479

De Britt v Carr (1911) 12 CLR 114

Davies v Littlejohn (1923) 34 CLR 174

O’Keefe v Williams (1910) 11 CLR 171

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

Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485

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

Macdonald v Tully (1870) 2 QSCR 99

Mabo v Queensland (No. 2) (1992) 175 CLR 1

Yarmouth Corporation v Simmons [1878] 10 Ch D 518

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Newcastle City Council v GIO General Limited (1997) 191 CLR 85

Yanner v Eaton (1998) 166 ALR 258

New South Wales Legislative Assembly, New South Wales Royal Commission to Inquire into the Condition of Crown Tenants (Western Division of New South Wales) – Report and Summary of Evidence (Sydney: Government Printer, 1901)

New South Wales, Parliamentary Debates, Legislative Assembly 1901, Vol. 1, 3374

New South Wales, Parliamentary Debates, Legislative Assembly 1934, Vol. 1, 401

Sir Victor Windeyer, History in Law and Law in History, (11)(1) Alberta Law Review (1973) 123

MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN V DOUGLAS WILSON

NG 6043 OF 1998

JUDGES: BLACK CJ, BEAUMONT & SACKVILLE JJ

DATE: 5 APRIL 2000

PLACE: SYDNEY

THE COURT ORDERS THAT:

1. The questions in the stated case be answered as follows:

Question (a)

“(a) By virtue only of:

(i) the Western Lands Act 1901 (NSW); and

(ii) the regulations thereunder, as in force at the time of the grant of the lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?”

Answer

Unnecessary to answer.

Question (b)

“(b) If the answer to the question (a) is ‘No’, by virtue of:

(i) the Western Lands Act 1901 (NSW);

(ii)               the regulations thereunder, as in force at the time of the grant of the Lease; and

(iii)             one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?”

Answer

Unnecessary to answer.

Question (c)

“(c) If the answer to question (a) or question (b) is ‘Yes’, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the Lease?”

Answer

“Strictly unnecessary to answer, but on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involve a presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease.”

2. The costs of the stated case be reserved.

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

REASONS FOR JUDGMENT

BLACK CJ AND SACKVILLE J:

1                     Beaumont J has set out the nature of the proceedings in this Court, the questions for separate determination and the agreed facts. His Honour has also outlined the relevant provisions of the Western Lands Act 1901 (NSW) (“WLA”) at the material time and the terms of the lease granted under the WLA in 1955 (“the Lease”). WE gratefully adopt what his Honour has said on these matters.

2                     For convenience, we reproduce the questions for separate determination:

“(a) By virtue only of:

(i) the Western Lands Act 1901 (NSW); and

(ii) the regulations thereunder, as in force at the time of the grant of the lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(b) If the answer to the question (a) is “No”, by virtue of:

(i) the Western Lands Act 1901 (NSW);

(iv)             the regulations thereunder, as in force at the time of the grant of the Lease; and

(v)               one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(c) If the answer to question (a) or question (b) is “Yes”, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii)                suspended upon the grant of the Lease for the duration of the Lease?”

The Lessee’s Submissions

3                     The first respondent (“the Lessee”) submitted that the Lease conferred a right to exclusive possession of the subject land (“the Leased Land”) from the date it took effect. (It was common ground that nothing turned on the fact that the Lease was executed on 11 January 1955 but was expressed to take effect as from 31 August 1953.) It was said, therefore, that the Lease extinguished any accessorial native title rights that otherwise might have existed over or in respect of the Leased Land. It followed, according to the Lessee, that either question (a) or (b) and question (c)(i) should be answered: “Yes”.

4                     Mr Sullivan QC, who appeared with Mr Emmerig for the Lessee, adverted to the alternative possibility that question (c)(ii) (referring to the suspension of native title rights) might be answered affirmatively. However, it is fair to say that this alternative was not pressed.

5                     The starting point for the Lessee’s argument was the proposition that the power to grant a lease conferred by the WLA must be presumed to refer to an interest having the incidents of a common law lease, including the right to exclusive possession, subject only to modifications required or permitted by the WLA. Mr Sullivan contended that substantial weight should be given to the common law meaning of the word “lease” when used in a statute. Alternatively, he argued that the Lease itself was to be construed as using the word in its common law sense, with the consequence that the original lessee acquired the right to exclusive possession and that any native title rights over the Leased Land were extinguished.

6                     The Lessee recognised that in order to secure an affirmative answer to the questions raised for separate determination, it would be necessary to distinguish the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 (“Wik”). In that case, it will be recalled, a majority of the Court held that the so-called Holroyd River and Mitchellton Pastoral leases granted under Queensland law did not necessarily extinguish all incidents of native title claimed by the Wik and Thayorre Peoples over the leasehold lands.

7                     The Lessee argued that the terms of both the WLA and the Lease were materially different from the legislation and leases considered in Wik. According to Mr Sullivan:

(i)                  the WLA and the Lease did not include provisions corresponding to those that, according to the majority of the High Court, counted against the Wik leases being held to confer rights of exclusive possession;

(ii)                the WLA and the Lease contained no other provisions negating an intention to confer rights of exclusive possession; and

(iii)               certain provisions in the WLA and the Lease confirmed that the Lease was intended to confer rights of exclusive possession.

8                     The following matters were said to substantiate the first proposition (although some were also said to be relevant to the other propositions):

·        The Land Act 1910 (Qld) (“the Land Act”), the principal enactment considered in Wik, devoted a separate Division to pastoral leases. This (so it was said) added force to the contention in that case that the pastoral leases were special statutory interests, distinct from common law leases. By contrast, leases under the WLA were granted under a single power, namely that granted by s 23 of the WLA, and were all intended to confer rights of exclusive possession on lessees.

·        The Land Act specifically provided that pastoral leases were to vest in the lessees at the time of the grant, thereby displacing the common law rule that a lease vests only upon entry into possession. The WLA contained no equivalent provision.

·        The Land Act blurred the distinction between leases and licences, suggesting that in Queensland a pastoral lessee (like a licensee) did not acquire rights of exclusive possession. By contrast, the WLA (reflecting the history of Crown lands legislation in New South Wales) carefully distinguished between leases and licences.

·        The Land Act provided for the Crown to take proceedings against persons in unlawful occupation of land subject to a pastoral lease (provisions taken as supporting the proposition that a pastoral lease did not have rights to exclusive possession). The WLA contained no equivalent provisions.

·        The forfeiture provisions in the Land Act were different from those in the WLA.

·        The reservations specified in the WLA and in the Lease itself in favour of the Crown and third parties were narrower than those applying to the Wik leases. The former were consistent with the grant of a right to exclusive possession; the latter were not.

·        The Land Act conferred a positive power to transfer or assign pastoral leases, while the WLA merely assumed that there was such a power (suggesting that Parliament assumed that a lease under the WLA was in the nature of a common law lease).

·        The Wik leases were granted over very large areas of land. The Lease, by contrast, was over a smaller area, reflecting the fact that the lessee was obliged to live on and work the Leased Land.

9                     The second and third propositions were said to be supported by the following:

·        The Lease (like the Wik leases) contained no reservation of indigenous rights over the Leased Land.

·        The Lease was granted in perpetuity, suggesting that any native title rights were extinguished, not merely suspended. In this respect, it differed from the Wik leases which were each for a term of thirty years.

·        The WLA, as a matter of construction, was intended to authorise leases conferring rights of exclusive possession. In particular, the WLA provided for detailed developmental and improvement conditions to be included in leases. Provisions of this kind (which were reflected in the conditions in the Lease itself) tended to confirm that the Lease granted rights of exclusive possession. So, too, the statutory requirement that a condition of residence attach to every lease granted under the WLA strongly suggested that the Lease was intended to confer rights of exclusive possession.

The Native Title Act

10                  The questions for separate determination make no reference to the Native Title Act 1993 (Cth) (“NTA”). There was some disagreement between the Lessee and the other parties as to the significance of the NTA for the present proceedings. In order to resolve this disagreement it is necessary to summarise the provisions of the NTA which confirm the extinguishment of native title.

11                  Part 2, Div 2B of the NTA provides for the confirmation of extinguishment of native title by what is described as a “previous exclusive possession act”. According to the Explanatory Memorandum to the Native Title Amendment Bill 1997, Div 2B is intended to confirm the effect on native title of various types of Commonwealth acts done prior to 23 December 1996, and to permit the States and Territories to confirm the effect of acts done by them prior to the same date (par 5.1). The Explanatory Memorandum states that this aspect of the legislation reflects the Government’s understanding of the common law of native title after the decision in Wik.

12                  Section 23B of the NTA defines “previous exclusive possession act” as follows:

“(2) An act is a previous exclusive possession act if:

(a)               it is valid…;

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

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

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

…

(iv)             …an exclusive pastoral lease (see section 248A);

…

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

13                  A “Scheduled interest” includes the leases or categories of leases specifically identified in Schedule 1 to the NTA: see s 249C. Schedule 1 identifies certain categories of leases granted pursuant to the WLA, such as a lease under s 23 of the WLA that permits the lessee to use the land solely or primarily for agriculture or for agriculture and grazing combined: Schedule 1, Part 1. However, Schedule 1 does not incorporate leases granted under the WLA solely for grazing purposes. Thus the Lease the subject of the present case is not included in Schedule 1.

14                  The Explanatory Memorandum states (par 36.2) that Schedule 1 to the NTA includes

“leases and other interests…which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession on the grantee and have therefore extinguished native title. The Schedule principally contains specific types of residential, commercial, community purpose and agricultural leases. The Government’s policy is to ensure certainty with regard to those interests in the Schedule.”

15                  The Explanatory Memorandum recognises that the effect of pastoral leases, such as those for grazing purposes only, must be resolved by the courts (par 36.14).

16                  The expression “pastoral lease” in the NTA is defined to include a lease that permits the lessee to use the leasehold land solely or primarily for maintaining or breeding sheep, cattle or other animals, or for any other pastoral purpose: NTA, s 248. An “exclusive pastoral lease” (the expression used in s 23B(2)(c)(iv)) is defined to mean

“…a pastoral lease that:

(a)               confers a right of exclusive possession over the land…covered by the leases; or

(b)               is a Scheduled interest” (s 248A).

17                  Section 23C of the NTA provides that where an act is a “previous exclusive possession act” under s 23B(2) and is attributable to the Commonwealth

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

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

18                  The grant of a lease under the WLA is not, of course, an act attributable to the Commonwealth. However, the NTA also provides for confirmation of extinguishment of native title by previous exclusive possession acts of a State or Territory. Section 23E of the NTA states that, subject to certain presently immaterial conditions, the law of a State or Territory

“may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.”

19                  Part 4 of the Native Title (New South Wales) Act 1994 (NSW) (“NTA (NSW)”) was enacted by the Parliament of New South Wales pursuant to the authority conferred by s 23E of the NTA. The objects of Part 4 are, inter alia, to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State: NTA (NSW), s19(1)(a). The confirmation is said to be that contemplated by s 23E of the NTA.

20                  Section 20 of the NTA (NSW) mirrors the terms of s 23C of the NTA. Section 20(1) is in the following terms:

“(1) If an act is a previous exclusive possession act under section 23B(2)… of the Commonwealth Native Title Act and is attributable to the State:

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

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

Significance Of The Legislation For The Questions

21                  The parties differed as to the significance of the legislative scheme contained in the NTA. Mr Sullivan founded the submissions on behalf of the Lessee on general law principles governing the extinguishment of native title. According to Mr Sullivan, the Lease granted in 1955 conferred exclusive possession on the Lessee’s predecessor in title. It followed that, in accordance with the principles formulated and applied by the High Court in Wik and Fejo v Northern Territory (1998) 195 CLR 96, any native title rights in the leasehold area had been extinguished. There was simply no occasion to have recourse to the provisions of the NTA or the NTA (NSW). Native title rights in the Leased Land had been extinguished long before the NTA had come into force.

22                  Mr Sullivan pointed out that the NTA contemplated that extinguishment of native title could take place otherwise than under the Act itself. Section 23J(1), for example, entitles native title holders to compensation in accordance with Div 5 of Part 2 for any extinguishment under Div 2B of their native title rights and interests, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under the NTA. Mr Sullivan contended that the explicit statutory recognition that native title could be extinguished under the general law meant that the separate questions could be answered without any need to consider the operation of Div 2B of Part 2 of the NTA.

23                  Mr Basten QC, who appeared with Mr Blowes for the third respondent (“the Council”), submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA. He accepted that the NTA did not constitute a code in relation to extinguishment. Nonetheless he argued that the legislation was

“intended to provide a comprehensive statement of as many circumstances which might involve extinguishing acts as possible, and to provide for their legal effects.”

24                  Mr Basten appeared to accept that under both the statutory scheme and the common law, the question was whether the Lease conferred a right of exclusive possession over the land. He also appeared to accept that this question was to be answered by reference to common law principles. Thus, on his submissions, the application of the NTA (and the NTA (NSW))did not have any significant practical consequences, other than that the questions for determination should have explicitly referred to the legislation and, in particular, to the statutory concept of a “previous exclusive possession act”.

25                  In our view it is clearly correct, as Mr Sullivan submitted, that the NTA contemplates that native title rights in respect of particular land might have been extinguished prior to the commencement of the legislation, independently of the regime established by Part 2, Div 2B of the NTA. In the Native Title Act Case (Western Australia v The Commonwealth (1995) 183 CLR 373) the joint judgment observed (at 454) that an act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the NTA. While that observation was made before the enactment of Div 2B of Part 2, it remains true: Western Australia v Ward [2000] FCA 191, at [77]. Indeed, native title over much of the settled land mass of Australia has been extinguished in this manner. Thus the ultimate issue to be resolved in these proceedings is whether any native title rights that might exist in respect of the Leased Land were extinguished by the grant of the Lease in 1955. The resolution of this issue depends on the application of general law principles of extinguishment of native title.

26                  The separate questions do not explicitly state whether the question of extinguishment in the present case is to be addressed by reference to the general law principles expounded in Mabo v Queensland (No 2) (1992) 175 CLR 1, Wik and Fejo, or to the statutory concept of “previous exclusive possession act”, or both. To this extent it may be said that the questions are ambiguous. However, an ambiguity of this kind does not present an obstacle to the Court addressing the core issue raised by the parties. It was common ground that the Lessee’s case had to stand or fall on the general law principles governing extinguishment of native title. While Mr Sullivan adverted to the possibility that the Lessee might be able to rely, as an alternative argument, on the confirmation of extinguishment of title effected by the NTA, he did not suggest that the statutory criteria for extinguishment were any different, for the purposes of this case, from the general law criteria. Certainly, the argument focussed exclusively on the general law principles of extinguishment.

27                  There is no occasion in this case to consider the precise relationship between the rules embodied in the NTA governing “confirmation of past extinguishment of native title” and the general law principles of extinguishment of native title. It is enough to note that, despite the terminology employed in Part 2, Div 2B of the NTA, the effect of Div 2B is not necessarily simply to confirm instances of extinguishment of native title that have already taken place under the general law. For example, it is possible that some of the leases, or classes of leases, specified in Schedule 1 to the NTA (all of which, by virtue of s 23B(2), constitute “previous exclusive possession acts”) would be found, on general law principles, not to have completely extinguished native title. If that is so, the inclusion of these leases in Schedule 1 simply reflects the fact that Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts. (Compare the effect of the recital to the preamble to the NTA which was said in Wik to have read too much into the judgments in Mabo [No 2]: Wik, at 125, per Toohey J.)

Form Of The Questions

28                  The identification of separate questions for determination pursuant to O 29 r 2 of the Federal Court Rules, can be a convenient procedure, and, in some circumstances, can avoid unnecessary delay and expense in the resolution of proceedings. But there are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations.

29                  The reason for formulating questions for separate determination in the present case was explained by Mr Sullivan at a directions hearing. At that hearing, the Judge managing the proceedings (Beaumont J) drew to the attention of the parties observations made by Gummow J in Yanner v Eaton (1999) 166 ALR 258, concerning the importance of factual findings in native title claims. Gummow J said this (at 288-289):

“Before turning to whether inconsistency arose in the present appeal, it is important to clarify the utility of factual findings. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it.”

30                  Beaumont J invited the parties to reconsider the procedure adopted in the present case in view of these comments.

31                  At the directions hearing, Mr Sullivan acknowledged the force of the observations of Gummow J in Yanner, but justified the separate question procedure as a “short cut” designed, depending on the outcome, “to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry”. He pointed out that the questions in this case had been framed having regard to the procedure followed in Wik. In that case, the High Court answered questions asked in relation to the effect of the so-called Holroyd River and Mitchellton Leases on the native title rights of the Wik and Thayorre Peoples.

32                  It is true that the questions in the present case follow reasonably closely the form of the questions asked and answered in Wik. Questions (a) and (b), for example, ask whether the Lease conferred a “right to exclusive possession of the leased land”. These questions are very similar in form to two of the questions (Questions 1B(b) and 1C(b)) asked in Wik.

33                  Question 1B(b) in Wik was as follows:

“If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease):

…

(c)                does the pastoral lease confer rights to exclusive possession on the grantee?”

34                  The majority answered this question (and the equivalent in relation to the Mitchellton Leases): “No”: see Wik, at 261-262.

35                  Question (c) in the present case is asked on the assumption that an affirmative answer is given to either question (a) or (b). It asks, inter alia, whether any native title rights were extinguished upon the grant of the Lease. This question is similar to Questions 1B(d) and 1C(d) in Wik, which asked whether, on certain assumptions, the grant of the various pastoral leases

“necessarily extinguish all incidents of Aboriginal title or possessory title of the [Aboriginal] Peoples in respect of the land demised…?”

36                  The majority in Wik answered the questions in this form: “Strictly does not arise, but is properly answered No”: see Wik, at 261-263.

37                  Despite the similarity of the questions in the present case to those in Wik, it is important to appreciate the difficulties created by the procedure that has been adopted. In Wik itself, some members of the majority expressed reservations about the procedure the Court was asked to follow. Toohey J saw (at 116)

“the basic question [as] whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished.”

38                  His Honour (at 131) went on to criticise the questions that had been asked:

“[The questions] are not happily framed, with their emphasis on whether the grant of each pastoral lease ‘necessarily’ extinguished ‘all incidents of Aboriginal title’ of the Wik Peoples and the Thayorre People, an aspect that only arises if in each case the pastoral lease conferred ‘rights to exclusive possession on the grantee’. The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights…. Indeed, the questions framed by reference to ‘exclusive possession’ tend to obscure what is the critical question, that of extinguishment. Nevertheless, the questions should be answered as best they can.”

39                  Gummow J expressed the view (at 204) that Questions 1B(b) and 1C(b), by focussing on whether the pastoral leases conferred rights to exclusive possession, “may have distorted the essential issues”. His Honour considered that Questions 1B(d) and 1C(d), relating to extinguishment of native title, “should have stood independently for decision”. Nonetheless he, too, was prepared to join in answering the questions that had been asked. See also the comments of Kirby J, at 212-213.

40                  The procedure adopted in the present case presents difficulties similar to those identified in Wik.

41                  First, no findings have as yet been made concerning the content of native title that may exist in respect of the Leased Land. It must be remembered that native title has its origins in the traditional laws and customs observed by indigenous people: Mabo (No 2), at 58, per Brennan J. Native title is recognised by the common law but is neither an institution of the common law nor a form of common law tenure: Fejo, at 128. Consequently, as Gummow J said in Wik, the nature and incidents of native title will vary from case to case (at 169):

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

42                  In the Croker Island Case (The Commonwealth v Yarmirr (1999) 168 ALR 426 (FC)), Beaumont and von Doussa JJ observed, at 435, that native title is “highly fact specific”: that is, the existence and content of native title are questions of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis. It follows in the present proceedings that an affirmative answer to question (c)(i), which would effectively resolve the proceedings in favour of the Lessee, cannot be given unless all possible native title rights in respect of the Leased Land were extinguished by the grant of the Lease. As Wik demonstrates, this may prove to be a heavy burden for the Lessee to discharge in the absence of evidence as to the content of native title or an act manifestly inconsistent with all native title rights, such as the grant of a fee simple estate.

43                  Secondly, as explained by Toohey and Gummow JJ in Wik, questions framed by reference to rights of exclusive possession are apt to divert attention from the critical question. That question, to adopt the language of the joint judgment in Fejo (at 126) is whether

“the rights that are given [by the Lease] are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title.”

44                  It is understandable that the separate questions should have been drafted so as to ask whether the Lease conferred a right to exclusive possession on the Lessee’s predecessor in title. The language of exclusive possession is found in Mabo (No 2): at 110, per Deane and Gaudron JJ. Moreover, the questions in Wik were framed by reference to “rights to exclusive possession”. Perhaps for this reason, despite the express reservations of Toohey and Gummow JJ and despite the ambiguity inherent in the concept, much of the reasoning in Wik uses the terminology of “exclusive possession”. And Parliament has followed suit, incorporating “exclusive possession” into the definitions giving content to the expression “previous exclusive possession act” in s 23B of the NTA. Even so, for the reasons given by Toohey and Gummow JJ, there are dangers in elevating the question whether the Lease conferred a right to exclusive possession into an issue requiring separate determination.

45                  Under the general law, a legal right of exclusive possession connotes a tenancy and is secured by the lessee’s right to maintain ejectment and, after entry, trespass: Radaich v Smith (1959) 101 CLR 209, at 222, per Windeyer J; Street v Mountfort [1985] AC 809, at 827, per Lord Templeman. But it is not necessarily easy or appropriate to apply a concept developed for one purpose (that is, distinguishing between a lease and a licence, usually in the context of commercial disputes) for quite a different purpose (determining whether the rights conferred on the holder of a statutory lease are inconsistent with the continued entitlement of Aboriginal people to native title rights). Particularly is this so when it is remembered that the common law accepts the idea of relative claims to possession, or relativity of titles: Asher v Whitlock (1865) 1 QB 1; Allen v Roughly (1955) 94 CLR 98; Mabo (No 2), at 207-211, per Toohey J. Under the general law, a person in possession of land can maintain an action against third parties, other than a person having a superior title. In short, exclusive possession of land does not necessarily connote rights good against all the world. It follows that to say a person has rights to exclusive possession does not necessarily demonstrate that that person is able to exclude all third parties from access to his or her land.

46                  Thirdly, as Mr Basten pointed out, it is difficult in any event to see how question (a) can be answered affirmatively. In order to determine whether the rights given to the Lessee’s predecessor in title were inconsistent with the rights claimed by native title holders, it is necessary to have regard not merely to the WLA and the regulations thereunder, but to the terms and conditions of the Lease itself. This is not to say that the provisions of the WLA are irrelevant to the critical question that must be addressed. Far from it. But any assessment of the rights of the Lessee’s predecessor in title must take account of the terms of the Lease itself. We did not understand Mr Sullivan to contend otherwise.

History Of Crown Lands Legislation In New South Wales

The Significance of the History

47                  The history of Crown Lands legislation in New South Wales has been closely analysed in a number of cases. For example, in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (the Government House Case), several of the judgments examined the history of land administration in the Colony prior to the conferral of responsible government by the New South Wales Constitution Act 1855 (Imp) (“Constitution Act”). See also Randwick Municipal Council v Rutledge (1959) 102 CLR 54, at 71 ff, per Windeyer J.

48                  In Wik at first instance (Wik Peoples v Queensland (1996) 63 FCR 450, at 457ff), Drummond J considered in great detail the shifts in policy and legislation (both local and Imperial) governing the disposal of Crown lands prior to the establishment of Queensland as a separate Colony in 1859. His Honour undertook this task in order to deal with the applicants’ contention that an undertaking had been given before 1855, by or on behalf of the Crown, to preserve native title from extinguishment, and that this undertaking constituted a “promise or engagement” within the proviso to s 2 of the Constitution Act. Drummond J considered closely a series of memoranda and despatches in the mid to late 1850s, including several documents prepared by or endorsed by Earl Grey, then Secretary of State for Colonies (at 466-475), expressing views as to the effect of pastoral leases on the Aboriginal inhabitants.

49                  When Wik reached the High Court, three members of the majority examined the history of pastoral leases in New South Wales. They did so, however, for a rather different purpose than Drummond J (there having been no appeal on the “promise or engagement” issue). Toohey J traced the history of pastoral leases in New South Wales prior to the establishment of Queensland as a separate colony (at 107-109). He cited views expressed by Earl Grey in 1848 and 1849, in the course of correspondence with Governor FitzRoy, as supporting the proposition that Aborigines were not to be excluded from land under pastoral occupation (at 119). Gaudron J undertook a similar historical analysis and concluded that Earl Grey’s views provided an indication of the nature of the estate or interest intended to be conferred by the grant of a pastoral lease (at 140-141). Kirby J, too, considered (at 227) that the contemporary communications by Earl Grey showed that, at least so far as the Imperial authorities were concerned, pastoral lessees were not intended to grant rights of possession to the exclusion of Aboriginal subjects of the Crown.

50                  Gummow J, the fourth member of the majority, did not rely on any apparent contemporaneous recognition by representatives of the Imperial Government that the interests of Aboriginal inhabitants had survived a grant of pastoral leases. To the contrary, after referring to the legal framework in Canada, his Honour noted (at 182) the absence in Australia of “any established taxonomy to regulate such uses of history in the formulation of legal norms”. He continued as follows (at 183):

“Even if any such taxonomy were to be devised, it might then be said of it that it was but a rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts.”

51                  The written submissions of the parties canvassed in some depth the history of Crown lands in New South Wales, both before and after 1855. According to the Lessee, the history demonstrated that the legislation in New South Wales, from the 1830s on, had clearly distinguished between leases and licences of Crown land. The former carried with them (and were understood by contemporary commentators to carry) rights of exclusive possession that would prevail against Aborigines seeking to gain access to the lands. Licences, on the other hand, were not intended to confer rights of exclusive possession. This was said to strengthen the contention that grazing leases granted pursuant to the WLA were intended, like their predecessors, to confer rights of exclusive possession on the lessees.

52                  Indeed, the Lessee’s submissions went further. Mr Sullivan criticised the reliance placed by the majority in Wik on the views expressed by Earl Grey. By reference to other contemporary documentation (all of which was before the High Court in Wik), Mr Sullivan submitted that Earl Grey’s opinions had not been shared by local Law Officers of the Crown or even by the Colonial Land and Emigration Office. He pointed, for example, to a letter from the Colonial Land and Emigration Office to the Permanent Under-Secretary (Herman Merivale), dated 17 April 1849, which clearly expressed the view that pastoral leases granted under the 1847 Order in Council gave an exclusive right of possession that would prevail against any third parties “whether Native or European”. (The letter was cited by Brennan CJ in his dissenting judgment in Wik, at 81.) Mr Sullivan invited us to take a different view of the significance of the historical material than that accepted by the members of the majority in Wik.

53                  By contrast, the Council’s written submissions contended that the legislative history reinforced the view which prevailed in Wik, namely that the Colonial legislature and successive Governments had created new types of statutory leases, adapted to uniquely Australian conditions. The effect of these interests on native title could not be assessed merely by applying traditional common law principles. The Council endorsed the observations of A C Millard and G W Millard, The Law of Real Property in New South Wales (1905), quoted with approval by Gummow J in Wik, at 174-175:

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

54                  In oral argument, Mr Basten departed from the approach taken in the written submissions on behalf of the Council and contended, in essence, that the history of Crown leases in New South Wales prior to the enactment of the WLA was largely irrelevant to the questions to be addressed in the present proceedings. This submission rested on the proposition that the decision in Wik required a comparison to be made between the terms of the Lease and any incidents of native title that might, but for the Lease, subsist in respect of the Leased Land. The fact that several members of the Court had relied on disputed historical materials in order to reach that conclusion was not to the point.

55                  In our view, it is not necessary and not appropriate to attempt to pass judgment on the use made in Wik of the correspondence involving Earl Grey in order to shed light on the intended effect of pastoral leases on Aboriginal inhabitants of New South Wales. We accept that there has been criticism levelled at the use in Wik of Earl Grey’s views, as expressed in his correspondence with Governor FitzRoy. The historical significance of that correspondence raises complex issues on which professional historians have expressed sharply divergent views. One commentator has argued, for example, that the historical analysis used to support the majority view in Wik was incomplete and at variance with other scholarly accounts or interpretations of the relevant events: J Fulcher, “Sui Generis History? The Use of History in Wik” in G Hiley (ed) The Wik Case: Issues and Implications (Butterworths 1997), at 51-56; cf H Reynolds and J Dalziel, “Aborigines and Pastoral Leases – Imperial and Colonial Policy 1826-1855” (1996) 19(2) UNSWLJ 315. Perhaps issues of this kind were what Gummow J had in mind when he expressed, in the passages we have cited, reservations about the use of history as a foundation for the resolution of present conflicts.

56                  The simple fact is that the majority decision in Wik is binding on this Court. Our task must be to apply the principles enunciated in Wik to the present case and, in particular, to the Lease granted pursuant to the WLA. Even if the criticisms of the use made of Earl Grey’s correspondence by the majority were thought to be well-founded, that would not affect the authority of Wik. We would therefore decline the Lessee’s invitation to re-examine and reassess the historical material before the High Court in Wik.

57                  This conclusion does not mean that the history of Crown leases in New South Wales, in particular the legislation preceding the enactment of the WLA in 1901, should be ignored. At the very least, it sheds light on the scheme introduced by the WLA and the reasons for it. While the account that follows is necessarily sketchy, it reinforces the relevance of the fundamental point made in Wik to leases granted pursuant to the WLA. If ever there were a case of legislation adapted to the “peculiar conditions and wants” of a geographic area, the legislation governing the grant of leases in what ultimately became the Western Division of New South Wales would seem to be it.

Crown Lands Prior to Responsible Government

58                  Until 1831 full power of disposal of lands within the Colony of New South Wales was vested in the Governor, to be exercised in accordance with instructions issued by the Colonial Office: Wik (Drummond J), at 458. In 1826, a scheme was introduced involving the establishment of the so-called “limits of location”. Within those limits, the declared boundaries of settlement, persons wishing to select land could do so with official sanction. Beyond those limits (initially comprising nineteen counties) settlers were in theory not permitted to occupy lands: id, at 459. Local regulations, made in 1831 under the prerogative power, introduced a system of disposal of Crown lands by public auction, both by way of lease and sale.

59                  By the 1830s squatters occupied large tracts of land to run cattle and sheep without official sanction.The limits of location were extended, but the problem remained: S H Roberts, History of Australian Land Settlement (1788-1920) (Macmillan, 1924), at 176-177. This prompted the Colonial Government to introduce a system of annual occupation licences for lands outside the limits of location. Legislation enacted in 1836 (Crown Lands Unauthorized Occupation Act 1836 (NSW)), made it unlawful for any person to occupy Crown lands beyond the limits of location without a valid depasturing licence and imposed penalties for the unauthorized occupation of Crown lands within the limits. That legislation was re-enacted in 1838 and 1839.

60                  The new controls did not resolve the difficulties created by the squatters. They demanded greater security of tenure, thrusting the colony into “an indescribable ferment”: S H Roberts, at 179. According to Mr Sullivan, the significance of the 1830’s legislation lay not in the political controversy it generated, but in the distinction drawn between leases and licences of Crown lands. For example, the Crown Lands Unauthorized Occupation Act 1839 (which established a Border Police force to protect persons lawfully occupying Crown lands beyond the limits allotted for location) rendered unlawful the occupation of Crown Lands without a “valid lease or licence” for depasturing cattle or other animals. The legislation generally imposed “fees” in respect of licences and required “rent” to be paid in respect of leases. The distinction between fees and rent was carried through into the WLA.

61                  Another local enactment, the Crown Lands Unauthorized Occupation Act 1841 (NSW) (“the 1841 Act”), s 2, provided that no action for trespass could be brought by a person in occupation on sufferance or by virtue of a licence. According to Mr Sullivan, the importance of the 1841 Act lay in its failure to prevent a lessee from bringing an action for trespass against a third party. This, so he argued, tended to confirm that a lessee of Crown lands was intended to have rights of exclusive possession.

62                  The disposal of land in the Australian Colonies became subject to a statutory regime established by the Imperial Parliament with the enactment of the Sale of Waste Lands Act 1842 (Imp). The economic and social objectives of the legislation are referred to in Wik (Drummond J), at 461. The Sale of Waste Lands Act, although establishing a regime for the sale of Crown lands, expressly stated that it was not to prevent the grant of annual occupation licences (s 17). It did not expressly provide, however, for leases of Crown lands.

63                  This omission was rectified by the Sale of Waste Lands Amendment Act 1846 (Imp) (“the 1846 Act”) which, as Drummond J noted in Wik, was passed following agitation by pastoralists for greater security of tenure (at 465). Section 1 authorised the Crown “to demise for any Terms of Years not exceeding Fourteen” any waste lands of the Crown. Section 6 of the 1846 Act authorised the making of Orders in Council for the purposes of the legislation, including division of the Colony into districts.

64                  An Order in Council under the 1846 Act was made on 9 March 1847. Chapter I classified lands in the Colony of New South Wales as being in the “settled”, “intermediate” or “unsettled” districts. Chapter II, which dealt with the unsettled districts, authorised the Governor to grant leases of land, for a term not exceeding fourteen years in duration, for pastoral purposes (Ch II, s 1). The “rent” payable in respect of such leases was to be proportionate to the assessed carrying capacity of the land (Ch II, s 2). The Order in Council reserved to the Governor the power to make grants or sales of land within the limits of lands comprised in a lease for public purposes or disposing of such lands “as for the public interest may seem best”, including “for the use or benefit of the aboriginal inhabitants of the country” (Ch II, s 9).

65                  An Order in Council made on 18 July 1849 and proclaimed by Governor FitzRoy on 23 April 1850, empowered the Governor to insert in any future “pastoral lease” such conditions, clauses of forfeiture, exceptions or reservations deemed requisite

“for securing the peaceable and effectual occupation of the lands comprised in such leases, and for preventing the abuses and inconveniences incident thereto”.

66                  Thereafter, the practice in the Colony was to include a specific reservation in favour of Aboriginal people in leases of unsettled or intermediate land for pastoral purposes. The reservation was in the following form:

“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.”

67                  See forms of lease of Crown land in Progress Report from the Select Committee on Crown Lands, Votes and Proceedings, Legislative Council, 9 November 1854.

Crown Lands After Responsible Government

68                  Until responsible government was bestowed on the Colony of New South Wales in 1855, the Imperial Government retained ultimate control and management of the Colony’s waste lands. This situation changed with the enactment of the Constitution Act, s 2 of which vested in the Colonial legislature the management and control of waste lands. Section 1 of the Australian Waste Lands Act 1855 (Imp), enacted at the same time as the Constitution Act, repealed the Sale of Waste Lands Acts of 1842 and 1846.

69                  The first local enactment dealing with leases of Crown lands, following passage of the Constitution Act, was the Crown Lands Occupation Act 1861. The Crown Lands Alienation Act 1861 (NSW), passed on the same day, provided for the alienation of Crown lands in fee. These enactments repealed the earlier Orders in Council.

70                  The Crown Lands Occupation Act 1861 classified Crown lands into the First and Second Class “Settled Districts” and the “Unsettled Districts” (ss 1, 11). Crown lands in the First Class Settled Districts could be “demised by lease” for pastoral purposes for one year (s 11). In other Districts the maximum term for a pastoral lease was five years. Leases could be granted for other specified purposes, including mining (other than for gold), for terms up to fourteen years (s 11). The Governor in Council was empowered to withdraw from any land comprised in a lease areas required “for any public purpose whatsoever” (s 5). Similarly, the Governor in Council could insert in leases a condition enabling land subject to the lease to be resumed without compensation (except for a proportional rebate of rent) for any public purpose (s 13(5)). Leases were subject to rights of access by third parties, such as persons authorised to search for minerals or to remove indigenous timber (s 8). The same Act provided for an offence of occupying or working Crown land otherwise than under a subsisting lease or licence (s 33). The provisions governing the grant of licences required the payment of a licence “fee” (s 31), while those governing the granting of leases required the payment of “rent” (ss 12, 13).

71                  In 1883, the report of a Parliamentary Inquiry into the state of public lands in New South Wales was published: New South Wales Legislative Council, Report of Inquiry: State of the Public Lands and the Operation of the Land Laws (1883) (“the Public Lands Report”). The Public Lands Report considered the operation of land laws throughout New South Wales and took a good deal of evidence While it made no recommendations, the report was influential in the framing of the Crown Lands Act 1884 (NSW), described by Professor Lang as

“the first systematic Crown land legislation, purporting to set out in some order a series of tenures over Crown land”.

72                  See A G Lang, Crown Land in New South Wales (Butterworths, 1973), at 11.

73                  The Public Lands Report divided New South Wales into three parts. Division 1 corresponded to the Old Settled Districts and comprised about 26 million acres, with a population of 506,181. Division II was the central area, the westerly limit of which was an irregular line stretching from the intersection of the Barwon River and the Queensland border to the confluence of the Murrumbidgee and the Murray. It comprised about 86 million acres and had a population of 223,560. Division III, the forerunner of the Western Division, embraced the remainder of the Colony west of the western boundary of Division II. Division III contained 83,779,760 acres and was said to have a population of 18,500 (presumably excluding indigenous inhabitants). Of that population, 6,696 resided in towns and 11,804 in rural districts.

74                  The Public Lands Report’s principal theme was “the class contest for the possession of [the Colony’s] lands” (at 28). By this colourful description the authors meant to refer to the contest between selectors (including pastoral lessees) and squatters, a contest which had been exacerbated by the practice of offering for sale to one class of occupants land simultaneously assigned under lease to another (at 13). The situation had led to “discord and chicanery”, to the detriment of the beneficial management of Crown lands. The Public Lands Report did not address the effect of the class contest, or of the land laws, on the Aboriginal inhabitants of the Colony.

75                  According to the Public Lands Report, the antagonism between lessees and selectors had not been as disastrous in Division III as in Division II. This was because in Division III (at 23)

“…nature has presented an obstructive barrier to the beneficial occupation of the land in small areas. The sparse vegetation, the arid soil, and the waterless character of the country, consequent on the deficient rainfall, have protected the Crown lessees to a great extent from invasion by conditional purchasers, even for the purposes of blackmailing, but it depends on time only, if the present Land Laws remain on the Statute-book, when the bitter strife and terrible waste of human energy which are the characteristics of settlement in the inner division will commence in full force.”

76                  In its Synopsis of Evidence, the Public Lands Report described the state of land settlement in the Warrego District (an area which includes the land subject to the Lease) (at 65):

“The occupation of the country is mainly by the pastoral tenants. The average size of the stations is fully 400 square miles, or about 250,000 acres. Most of these leaseholds are partly stocked, some are waiting the completion of works for water supply. There are few cattle; the universal stock consists of sheep, and the district is much understocked yet. The lessees have reclaimed large tracts by substantial works, especially dams and tanks. The runs as watered have been enclosed, subdivided by substantial fencing, and home stations constructed, all these improvements being directed to the remunerative occupation of the country.

…water is the key to the successful occupation of this country, and the reclamation of this great and valuable tract by the Crown tenants on the basis of their leasehold tenure presents a problem that demands much consideration. The privilege held by the conditional purchaser of appropriating leasehold land though watered by the lessee’s outlay and exertion, involves peril for public as well as private interests.”

77                  The principles underlying the Crown Lands Act 1884 (NSW) (the “1884 Act”), in its application to the Western Division (as the equivalent to Division III became known), were stated by the Secretary for Lands as follows (New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 1883, at 43-44; 7 November 1883, at 351-353):

·                    all previous Crown leases legislation was to be repealed;

·                    the Colony was to be divided into three parts: the Western, Central and Eastern divisions;

·                    the Western Division was to be purely pastoral and would be subject only to leases;

·                    half of the existing runs would be resumed and open to conditional leasehold or homestead leasehold (the latter having a maximum area of 10,280 acres) in order to provide an opportunity for “young men…to settle upon the land, and to make a sheep farm”;

·                    a current lessee would be able to retain a lease over half of the run (and to secure an extension of the term of the lease) and to occupy the remaining half under licence until it was leased; and

·                    the administration of the legislation was to be decentralised by devolving authority to local land boards.

78                  The 1884 Act gave effect to those principles. It is not necessary to examine the legislation in detail. However, some features should be noted.

79                  First, the 1884 Act created new forms of tenure in addition to those recognised under the earlier law. For example, the Act created homestead leases (ss 82-84), annual leases for pastoral purposes (s 85) and scrub land leases (s 87). Amending legislation introduced yet further variations, such as inferior lands leases (Crown Lands Act 1889 (NSW), s 37) and improvement leases in respect of lands not suitable for settlement until improved (Crown Lands Act 1895 (NSW), s 26).

80                  Secondly, the 1884 Act specified the conditions to which particular leases were to be subject. Pastoral leases in the Western Division, for example, were to be for a term of fifteen years from the date of determination of the existing lease; rental was to be assessed by a local land board; pastoral lessees were to be entitled to an additional term of the lease, subject to a contrary determination by the Minister; and the Governor could withdraw from a lease land required for any public purpose (s 78). Homestead leases in the Western Division were to be between 5,760 and 10,240 acres (between nine and sixteen square miles); they were to have a term of fifteen years, with the same rights of extension as pastoral leases; they were subject to the same provisions as to rent, forfeiture and surrender as pastoral leases; and a homestead lessee was to reside on the land for at least six months during each of the first five years of the lease (a provision designed to avoid the practice of “dummying”) (s 82).

81                  Thirdly, the 1884 Act set out general provisions affecting leases. Thus, every lease was liable to forfeiture for non-payment of rent or breach of any condition annexed to the lease (s 96). Some provisions, such as that denying power to prevent the entry and removal of material by authorised persons, applied both to leases and licences (s 98). The Governor retained a general power to withdraw from lease or licence any land required for any public purpose (s 108).

Western Lands Act

82                  Beaumont J has explained the background to the enactment of the WLA in 1901, including the work of the Royal Commission to Inquire into the Condition of Crown Tenants (Western Division of New South Wales). His Honour has also explained the background to the principal amendments to the WLA effected in 1932 and 1934. There is no need for us to repeat this material.

Reasoning

The Principles

83                  We have referred earlier to the difficulties created by the form of the questions in the present case. As we have explained, the difficulties stem from the fact that the critical question is not whether, as an abstract proposition, the Lease conferred exclusive possession on the original lessee. It is whether the rights conferred on the lessee were inconsistent with any and all of the rights and interests which together make up such native title rights as may exist over the land. Thus in Fejo, the reason why native title was extinguished by the grant of the fee simple estate was that the holder of the fee simple estate was able to “use the land as he or she [saw] fit and [to] exclude any and everyone from access to the land”. In the absence of any qualification on the grant, it was inconsistent with the existence of any rights of native title over the land: Fejo, at 128.

84                  Sovereignty carries with it the power to extinguish rights and interests in land within the sovereign’s territory, including native title: Mabo, at 53-64, per Brennan J. Whether or not the rights conferred by native title can be described as interests in land (cf Mabo (No 2), at 110, per Deane and Gaudron JJ), those rights can be terminated by inconsistent dealings with the land by the Crown. It is for this reason that the enjoyment of native title is said to be “precarious” under the common law (Native Title Act Case, at 452 (joint judgment)) or “inherently fragile” (Fejo, at 151, per Kirby J)).

85                  Brennan CJ, in his dissenting judgment in Wik, identified three categories of laws or executive acts by which native title rights might be extinguished (at 84-85):

(i)                  laws or acts which simply extinguish native title;

(ii)                laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and

(iii)               laws or acts by which the Crown acquires full beneficial ownership of land subject to native title rights.

86                  So far as the first category is concerned, a law or executive act which, although creating no rights inconsistent with native title, is claimed to extinguish native title, will not have that effect “unless there be a clear and plain intention to do so”: Wik at 85, per Brennan CJ, citing Mabo (No 2), at 64, 111, 196. Hence Toohey J in Mabo (No 2) observed (at 111) that general waste lands or Crown lands legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under native title. His Honour founded this observation on the principle that clear and unambiguous words must be used before the legislature will be taken to have expropriated or extinguished valuable rights relating to property without fair compensation.

87                  So far as the second category is concerned, Brennan CJ observed (Wik, at 85) that a

“law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title”.

88                  Yet, even in this situation, the exercise of power must be in terms that

“clearly, plainly and distinctly authorise[…]activities and other enjoyment of the land which [are] necessarily inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants”.

89                  (Wik, at 171 per Gummow J, and see at 203); Yanner, at 289, per Gummow J; Croker Island, at 437, per Beaumont and von Doussa JJ).

90                  In Croker Island, the majority judgment pointed out (at 438) that all members of the Court in Wik were in agreement as to the manner in which inconsistency is to be judged. The question is to be resolved as a matter of law by comparing the legal nature and incidents of the existing right and of the statutory right: Wik, at 185, per Gummow J. Kirby J in Wik (at 221) referred to this as the “inconsistency of incidence test”, which he described as follows:

“once the Crown’s ultimate or radical title was converted, by the exercise of sovereignty into an estate or interest in land, the question became whether that estate or interest, of its legal character, was inconsistent with the continuance of native title in the land. The question was not whether the estate or interest had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. The issue was one of legal theory, not detailed evidence.”

91                  Of course, a test framed in these terms does not deny the need for a factual inquiry to ascertain the content of native title in a particular case in order to enable the required comparison to be made.

92                  In Ward, Beaumont and von Doussa JJ (at [71]) identified the question to be addressed as follows:

“The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised…”

93                  Subject to one qualification, what we shall describe as the inconsistency of incidents test enables a determination to be made as to whether inconsistency (and therefore extinguishment) occurs at the time of the grant of an interest: Croker Island, at 439 per Beaumont and von Doussa JJ. The qualification is that where a statute or a grant confers a power or condition to be exercised or performed in the future, the power or condition may have no immediate legal effect in terms of inconsistency. In such a case, extinguishment of native title will not occur unless and until the power is exercised or the condition satisfied: Wik, at 166, per Gaudron J; Croker Island, at 439. Gummow J in Wik held (at 203) that conditions in the pastoral leases which required the construction of earth dams and an airstrip did not of themselves abrogate native title. If extinguishment occurred it would only be by reason of the performance of the conditions. This kind of “operational inconsistency” (Wik at 203, per Gummow J; Croker Island, at 439) presents factual issues for resolution.

94                  Until the recent decision of the Full Court in Ward, the question whether there can be “partial extinguishment” of native title rights had not been authoritatively determined. So far as this Court is concerned, however, Ward resolves the question. The joint judgment of Beaumont and von Doussa JJ reached this conclusion (at [109]):

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

95                  The recognition that there can be partial extinguishment of native title is of some importance to the present case. It follows from what has been said that the Lessee can succeed in these proceedings only if he is able to demonstrate that the Lease, in accordance with the authority conferred by the WLA, granted rights necessarily inconsistent with all “species of native title” (Wik, at 203, per Gummow J) which might exist over the Leased Land. The fact that some native title rights were extinguished by the Lease would not require an affirmative answer to be given to the critical question in this case. Nor would it be enough that the conditions imposed by the Lease or the lessee would, when actually performed, extinguish other (or even all remaining) native title rights. In the absence of evidence that the conditions had been performed in a manner that extinguished remaining native title rights, it could not be concluded that all native title rights in respect of the Leased Land had been extinguished.

96                  In Ward itself, the Court had the benefit of factual findings made by the trial Judge which identified the nature and extent of native title rights and interests in existence at the relevant dates. Beaumont and von Doussa JJ closely examined the extent to which those native title rights and interests were inconsistent with the terms of the various pastoral leases (which included specific reservations in favour of Aboriginal people). Their Honours concluded that, although the grant of pastoral leases had not completely extinguished native title rights and interests over the claimed lands, the leases had effected a partial extinguishment of native title rights and interests. In particular, the grant of pastoral leases had extinguished the exclusivity of native title rights to possess, occupy and use the claimed lands: see Ward, at [310], [329] and [340].

97                  Since no factual findings have been made in the present case, a comparison of the kind undertaken in Ward cannot yet be carried out. The question at this stage of the proceedings is whether any of the claimed native title rights and interests that may have subsisted in relation to the Leased Land could have survived the grant of the Lease.

The Significance of Terminology

98                  As we have pointed out, the starting point for the Lessee’s submissions was the contention that the word “lease”, when used in a statute such as the WLA, is presumed to refer to a lease with the incidents of a common law lease, including the right to exclusive possession. It is, however, difficult to reconcile this submission with the approach of the majority in Wik.

99                  Toohey J pointed out (at 117) that the rights and obligations of a person holding an interest under legislation of the kind considered by Wik was “not disposed of by nomenclature”. While the authorities pointed to exclusive possession as a normal incident of a lease, they did not exclude “an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of lease” (at 118). His Honour distinguished a passage in the judgment of Brennan J in American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, at 686, suggesting the contrary, on the ground that Brennan J’s remarks were made in the context of a purely commercial transaction which did not involve the title of the Crown or native title rights.

100               Gaudron J was even more emphatic in rejecting the contention that the common law meaning of “lease” or “demise for a term of years” was to be applied to the Queensland legislation, even in a context where a distinction was drawn between a lease and a licence (at 151-152). Her Honour thought that there was “no very secure basis for thinking that pastoral leases owe anything to common law concepts”. Rather, they were statutory devices, deriving from the Order in Council of 9 March 1847, designed to suit the peculiar conditions of the Australian colonies. There was nothing to suggest that a right of exclusive possession was either a necessary or convenient feature of pastoral leases in the Colony of New South Wales.

101               Significantly for present purposes, her Honour considered that it was difficult to apply the principle that a statute should be construed in conformity with the common law in a context in which the word was used to refer to something “quite foreign to the common law conception of a lease” (at 153). Her Honour specifically had in mind the fact that the Land Act (like s 23 of the WLA), authorised the grant of a “lease in perpetuity”. This was an expression unknown to the common law and thus one which she considered could not possibly take its meaning from the common law. (At common law a lease must be for a term certain or capable of being rendered certain: Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386. Thus there cannot be a lease in perpetuity: see Wik, at 201, per Gummow J.)

102               Gummow J expressed the view (at 203) that the decision in American Dairy Queen was to be given limited scope. He agreed with Toohey J’s discussion of the case.

103               Kirby J, too, rejected the contention that the word “lease” and similar expressions in the Land Act were sufficient to import all of the features of a common law lease (at 245). The nature and effect of the lease was to be determined by examining the terms of the statute and the relevant instrument. He accepted that some of the features of an ordinary lease might be imported into the statute. But that fell

“a long way short of requiring that the title conferred by a pastoral lease upon the lessee to use the land ‘for pastoral purposes only’ be extended to exclude Aboriginals using the land in the traditional way.”

104               It follows from Wik that the references in the WLA to a “lease” do not necessarily refer to a lease in the common law sense of one conferring a right to exclusive possession, enforceable against all the world including holders of native title rights. A fortiori, this is the case with s 23(1)(a) of the WLA, which confers the power to grant “leases in perpetuity”. In applying the inconsistency of incidents test, the rights granted by the Lease are to be ascertained by a process of construction which does not assume that a WLA lease uses the term “lease” in its common law sense. The application of the test depends on an assessment of the rights intended to be created by the lease and a comparison between those rights and native title rights over the land. This is consistent with the approach taken by the majority in Ward at [285]-[288].

105               There is nothing in Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687, a case strongly relied on by the Lessee, that requires a contrary conclusion. It is true that McPherson is the only decision of an appellate court which has considered the nature of a perpetual lease under the WLA (although there are other appellate decisions dealing with the operation of the WLA in relation to perpetual leases: see, for example, Ex parte Hopkins; Re Cronin (1956) 57 SR(NSW) 554; Ex parte McDougall; Re Tully (1945) 45 SR(NSW) 188). It is also true that there are some observations which suggest, tentatively at least, that such a lease is to be regarded as a common law lease save as provided for in the legislation: McPherson, at 712-713, per Mahoney JA. But these tentative observations were made in a context very different from the present.

106               The issue in McPherson was whether a lessee under a perpetual WLA lease is precluded from seeking relief in the equitable jurisdiction of the Supreme Court against forfeiture of her lease. The contest was between the Minister, who had forfeited the lease, and the lessee, who had invoked the equitable jurisdiction of the Court to relieve against forfeiture. Native title rights were not involved. Kirby P, with whom Meagher JA agreed, decided the case on the principle that Parliament should be presumed to respect and conform to basic rights, including fundamental rules of equity (at 699-701). In his view, the “ancient and beneficial remedy” of relief against forfeiture could co-exist with the Minister’s statutory powers (at 703). The approach taken by Kirby P is not inconsistent with the conclusion that a perpetual lease does not necessarily confer rights on a lessee that extinguish all native title rights over the leased land: see Wik, at 197-198, per Gummow J; at 245, per Kirby J.

107               Mahoney J did not express a final opinion as to whether a lease in perpetuity should be regarded as having the incidents of a common law lease. He considered that even if the lease were regarded as a statutory right, deriving its force and content from the legislation, the WLA should be construed as implicitly recognising the applicability of the equitable doctrine (at 713). His judgment therefore does not support the conclusion that a lease in perpetuity under the WLA necessarily extinguishes all native title rights.

108               That leases under the WLA are not necessarily to be construed as having the same characteristics as common law leases receives support from the history of Crown leases legislation in New South Wales, especially after 1855. The legislation emerged as a response to the uniquely harsh physical and climatic conditions of the Western Division and to the difficulties experienced (and created) by European settlement. These difficulties included disputes between different classes of settlers, although the conflict between lessees and selectors was not as acute in what ultimately became the Western Division as it had been in other settled areas of the Colony. The various statutory interests created by the legislation, including grazing leases under the WLA, were designed to address the specific problems identified, particularly, by the Public Lands Report of 1883 and the Royal Commission report of 1901. Neither of these reports referred to the relationship between lessees and indigenous inhabitants. Whatever the historical reasons for this omission, it is difficult to view the 1884 Act or the WLA itself as directed to the extinguishment of such native title rights as might have existed over the sparsely settled areas of Western New South Wales.

Construction of the WLA

109               As we understood the Lessee’s argument, it included the contention that the WLA, as a matter of construction, contemplates only the grant of leases that confer on the lessee rights to exclusive possession which will necessarily extinguish any native title rights over the leasehold land. This submission must take account of the principles already discussed, namely:

·        legislation is not to be construed as extinguishing or authorising the extinguishment of native title rights unless it clearly, plainly and distinctly has this effect;

·        the justification for this principle of construction is that legislation is not lightly to be construed as expropriating or extinguishing rights in or over land recognised by the common law;

·        legislation creating or authorising the creation of leasehold interests, such as the WLA is not necessarily to be construed as conferring rights of exclusive possession in the same sense as a common law lease, especially if the economic and social context of the legislation suggests otherwise;

·        the law recognises the concept of partial extinguishment of native title rights (and thus acknowledges that the extinguishment of some native title rights does not necessarily entail the extinguishment of all native title rights); and

·        the test is whether the legislation authorises the grant of rights that are necessarily capable of being exercised in a manner incompatible with the exercise of any native title rights that may exist in or over the land.

110               Apart from the matters to which we have referred, there are several powerful indications in the WLA itself that it does not have the effect claimed by the Lessee but that, on the contrary, it contemplates the grant of leases which do not necessarily extinguish all native title rights that may subsist over the Leased Land.

111               First, although the power to grant leases in perpetuity is expressed in general terms (s 23(1)), the WLA specifically provides for land to be set apart for the purposes of grazing (s 24(2)). It contemplates that leases in perpetuity, like the Lease in the present case, might be granted for the limited purpose of grazing (see s 19B(2)). In Wik, the majority considered that a lease “for pastoral purposes” (if anything, a broader concept than grazing: Wik, at 201, per Gummow J) did not authorise activities necessarily inconsistent with all incidents of native title: Wik, at 122, per Toohey J; at 153, per Gaudron J; at 201, per Gummow J; at 245, per Kirby J.

112               The WLA plainly contemplates that a wide variety of leasehold interests might be granted in respect of land in the Western Division. In this respect it continues a pattern established earlier by Crown lands legislation in New South Wales, especially the 1884 Act. Special purpose leases under the WLA, for example, might be granted for any declared special purpose (s 28A). Some special purpose leases, such as the lease of a small area for a private school, might create interests and rights not easily reconcilable with exercise of any form of native title rights. Other special purpose leases, such as a lease of a relatively large area for drainage or dairying purposes (both declared special purposes) might well co-exist with certain native title rights entitling the holders, for example, only to infrequent and short-term access to particular sites on the land.

113               The Lessee sought to make a virtue out of necessity by contending that the WLA must be taken to have intended to confer rights of exclusive possession on all lessees to whom leases are granted under the legislation. But there is no reason to suppose that leases granted pursuant to the WLA must confer uniform rights on the lessees, in particular uniform rights to exclude third parties from access to the land. The legislation provides for different terms and conditions to be included in various categories of lease, depending on the purposes for which the lease would be granted. Even if the WLA authorises particular leases or categories of leases that necessarily extinguish all native title rights (a matter unnecessary to decide), it does not follow that all leases granted under the WLA must have this effect.

114               Secondly, s 23(1)(a) of the WLA provides for the grant of leases in perpetuity. As has been explained, such leases are unknown to the common law. They are, as Gummow J said in Wik (at 201), “a statutory title which is sui generis”. For the reasons given by Gaudron J in Wik, it is not to be assumed that a statutory title sui generis carries with it the same rights of exclusion against third parties, including the holders of native title rights, as a common law lease.

115               Thirdly, the WLA provides for broad reservations and exemptions to be included in all leases granted under the legislation, or such of them as the Minister deems applicable (s 18). The specified reservation and exemptions include the following:

·        an obligation not to obstruct or interfere with any reserves or tracks or the use of them by any person (Sched A, par (e));

·        an obligation to permit the Commissioner and all authorised persons to enter and view the leased land (Sched A, par (i));

·        a reservation in favour of the Crown in relation to minerals, stone and metals (Sched A, par (k));

·        a restriction on the lessee’s power to remove material from the land or to prevent authorised persons removing timber or material or searching for minerals (s 18D(i), (iii)); and

·        an unrestricted right to proclaim travelling stock, camping or other reserves and to withdraw any land for the purposes of such reserves (Sched A, par (l)).

116               In Wik, Gaudron J considered that the “strongest indication” that a pastoral lease granted under the Land Act did not confer rights of exclusive possession was to be found in the rights reserved to third parties to take timber, stone and other material from the land and limitations on the lessee’s power, for example, to remove timber or interfere with stock routes (at 154). Gummow J did not give the same emphasis to these matters, but considered them relevant (at 200-201). Toohey J’s approach was similar (at 122). Kirby J took the view that, although the reservations and exceptions provided by the legislation did not throw much light on the legal character of the interest thereby created, by their number and variety they emphasised that a pastoral lease was a “peculiar statutory interest”, not to be regarded as conferring a general right of exclusive possession simply because it was called a lease (at 229, 246-247).

117               The reservations and exceptions provided by the WLA are not identical to those in the Land Act considered in Wik, but they are similar. It is to be remembered that in the absence of findings as to the nature of any native title rights over the land, the critical question in the present case must be answered adversely to the Lessee if any possible native title rights can exist concurrently with the lessee’s rights. The scope of the reservations and exceptions suggests that the rights of a lessee pursuant to a lease granted under the WLA might well be consistent with native title rights.

118               An example is provided by par (e) of Schedule A of the WLA. As the Council submitted, par (e) appears to recognise existing rights of third parties to use reserves or tracks on Crown lands. There is authority which suggests that the word “track” has a wide meaning, embracing an actual course or route followed regardless of whether there is a visible path: Yandama Pastoral Company v Mundi Mundi Pastoral Company Ltd (1925) 36 CLR 340, at 369, per Isaacs J (dissenting, but not on this question). The word “reserves” is also capable of a broad meaning embracing, for example, land set aside for particular uses by Aboriginal people. It is not difficult to envisage certain kinds of native title rights that might be protected by a reservation in the form of Schedule A, par (e). Similarly, the reservation in Schedule A, par (l) might well permit the Minister to proclaim or set aside reserves to protect particular native title rights subsisting over land subject to a perpetual lease.

119               To counter these indications, the Lessee relied on what were said to be differences between the Land Act and leases considered in Wik and the terms of the WLA and the Lease. While there are undoubtedly differences, in our view they do not justify the conclusion that the WLA authorises only the grant of leases conferring rights of exclusive possession on the lessee.

120               First, the Lessee pointed to several differences between the legislation considered in Wik and the provisions of the WLA. The latter, for example, contains no equivalent to s 6(2) of the Land Act, which provided for pastoral leases in Queensland to vest on the making of the grant (thereby displacing the common law principle that a lease vests only on entry into possession). The forfeiture provisions in the WLA (see s 18 and Sched A, par (o)) do not contain an equivalent to the proviso to s 135 of the Land Act, which was interpreted by Gaudron J (at 156) as, in effect, restoring the Crown’s radical title in the event of the forfeiture of a pastoral lease. And the WLA, unlike the Land Act, does not include a positive power to transfer or assign pastoral leases, but imposes a requirement that the Minister consent to any assignment or mortgage of a lease in perpetuity (s 18G).

121               Reference was made in the majority judgments in Wik to each of these provisions in the Land Act as supporting the proposition that the pastoral leases were distinct from common law leases: at 153, per Gaudron J, at 198, per Gummow J (s 6(2)); at 156, per Gaudron J (the proviso to s 135); at 199, per Gummow J (referring to the assignment provisions). But the provisions in the Land Act were not central to the reasoning of the majority. Their absence in the WLA is of little significance given the principles of construction to which we have referred and the considerations favouring the view that the WLA contemplates leases that do not necessarily extinguish all native title rights.

122               Secondly, the Lessee argued that the WLA maintained a clearer distinction between leases and licences than did the Queensland legislation considered in Wik. In Wik, Gummow J (at 201) referred to the “mixing together” in the statutory regime of elements which, in an analysis under the common law of leases and licences, would be distinct. His Honour took this as a factor supporting the conclusion that the pastoral leases had not extinguished native title. Gaudron J, by contrast, did not regard the blurring of the distinction between statutory leases and licences as a material factor. Her Honour stated that she would have reached the same conclusion as to the effect of the pastoral leases even if such a distinction had been drawn (at 151-152).

123               It is fair to say that the WLA distinguishes between leases and licences more clearly than the Land Act. For example, the WLA requires “rent” to be paid for leases, but “fees” for licences (unlike the Land Act which required “rent” for both): WLA, ss 19B-22. As Mr Sullivan pointed out, the distinction in the WLA reflects the consistent pattern of Colonial legislation, the course of which we have summarised earlier.

124               It is, however, difficult to see why the fact that the WLA (like the prior Colonial legislation) distinguishes between leases and licences for certain purposes leads to the conclusion that the WLA is intended to create leasehold interests that necessarily extinguish native title rights. It follows from Wik that the use of traditional nomenclature in legislation is far from decisive in resolving that question. Moreover, the legislative history in New South Wales shows that the distinction between leases and licences was introduced and maintained in order to clarify the nature of the relationship between the lessee or licensee (on the one hand) and the Crown (on the other), not the relationship between the lessee and the indigenous inhabitants. Whatever view is taken of the history of Crown leases in New South Wales before 1855, there is nothing in the subsequent history to suggest that the legislation (in particular the 1884 Act and the WLA itself) was drafted with an eye to extinguishing native title rights. As we have noted, neither the 1883 Public Lands Report nor the 1901 Royal Commission Report addressed the effect of statutory leases or licences on Aboriginal inhabitants who followed traditional patterns of access to land in the Western Division.

125               Thirdly, the Lessee relied on the fencing and residence requirements imposed by the WLA. Section 18A requires all leases to be subject to a condition that the boundaries of the land leased be fenced, unless the Commission exempts the lessee from the requirement. Section 18F(1) provides for a condition of residence for a term of five years to attach to every lease applied for after the commencement of the 1934 amendments to the WLA. The local land board is empowered to suspend the condition or permit it to be performed within a reasonable working distance of the lease: s 18F(1)(i), (ii).

126               In Wik, one of the pastoral leases was granted under the Land Act 1962 (Qld), which provided for a grant to be made subject to a condition for the erection of a boundary fence and the carrying out of certain improvement and development works. Gaudron J considered that these provisions were capable of “giving some support” to the view that a pastoral lease under the 1962 Act conferred rights of exclusive possession. However, her Honour declined (at 166) to place great weight on them, given that the Minister had power to delete the conditions and to exempt lessees from compliance. She said this (at 166):

“to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment.”

127               Gummow J noted the fact that some of the grants were subject to conditions requiring improvements. He took the view (at 203) that the enjoyment of some or all native title rights with respect to particular portions of the leased lands might be excluded by the performance of those conditions. But that consequence would flow from actions pursuant to the leases, rather than the imposition of the conditions by the grant.

128               The reasoning in Wik suggests that the fact that the WLA provides for a fencing condition to be included in a lease granted under the legislation falls well short of establishing that every such lease confers rights of exclusive possession on the lessee. The WLA, like the Land Act 1962, permits the condition to be dispensed with. And, of course, like some of the conditions in Wik (see at 202, per Gummow J), the fencing condition in a lease might not be enforced. It is necessary to consider the terms of the particular lease in order to determine whether a condition was imposed on the lessee and, if so, in what terms. It is also necessary in any given case to ascertain whether the condition was or was not enforced in a particular case.

129               There is another factor to consider. The obvious purpose of s 18A of the WLA is to provide for a fencing condition which, if implemented, will ensure that livestock remain within the boundaries of the leasehold land. There is nothing to indicate that s 18A was designed to ensure that unauthorised persons, in particular indigenous inhabitants, would be kept out of the leasehold land. After all, fences have gates and other entry points.

130               The reasoning in Wik also applies to the condition of residence referred to in s 18F(1) of the WLA. The WLA contemplates that a condition of residence will attach to every lease, but that the condition might be suspended or performed otherwise than on the lands subject to the lease. The legislation itself does not impose a residence condition in all leases in terms that are necessarily inconsistent with the exercise of all native title rights in respect of leasehold land. Whether there is an inconsistency with the exercise of such rights, and the extent of any inconsistency, will depend, inter alia, on the precise terms of the lease, the nature of the leasehold property and the manner in which the residence condition has been enforced.

131               Fourthly, the Lessee relied on the absence in the WLA of any provision equivalent to s 204 of the Land Act 1910,a section discussed in some of the judgments in Wik. According to the Lessee, s 204 gave significant support to the Aboriginal claimants’ case in Wik. Its absence from the WLA was therefore an important indicator that the WLA was intended to confer exclusive possession on lessees.

132               The terms of s 204 of the Land Act are set out in Wik, at 192. The effect of the first paragraph of s 204 was that any Land Commissioner or officer authorised by the Minister, who had reason to believe that any person was in unlawful occupation of Crown land, could make a complaint before justices. The justices were to determine the complaint and could issue a warrant for the removal of the unlawful occupier and take possession of the land on behalf of the Crown. The second paragraph of s 204 permitted a lessee or licensee of any land from the Crown to make a complaint in like manner against any unlawful occupier of land comprised in the lease or licence “and the like proceedings shall thereupon be had”.

133               Section 204 was relied on in Wik by both the Aboriginal claimants and the State of Queensland in support of their respective cases. The State contended that s 204 was intended to provide a remedy against persons in unlawful occupation of land, including indigenous inhabitants exercising what would otherwise be native title rights. The Aboriginal claimants argued that s 204, by providing for the removal of trespassers and the taking of possession on “behalf of the Crown”, indicated that exclusive possession was not vested in a lessee.

134               Gummow J in effect rejected both of these contentions. He construed the first paragraph of s 204 as being concerned with the recovery of Crown land not subject to a lease or licence (at 192). The second paragraph conferred on a lessee or licensee of Crown land a right to recover the land. His Honour considered that the second paragraph authorised a lessee or licensee to take proceedings which, if successful, would lead to the issue of a warrant for the removal of the unlawful occupiers and the taking of possession on behalf of the lessee or licensee (not the Crown). Gummow J also held (at 193) that the expression “any person” in s 204 was not apt to include those claiming under native title. As his Honour pointed out, the objective sought by s 204 and its predecessors was “the imposition of legal order upon the confusion which developed with the expansion of European settlement”, especially in relation to disputes between settlers with competing claims.

135               Gummow J did take the view that the fact that s 204 treated the nature of enjoyment of lessees and licensees indifferently, and used the term “possession” to identify their entitlement, suggested that the Land Act should not be construed as necessarily incorporating the common law attributes of leases and licences into their statutory counterparts. The WLA differentiates between leases and licences and, in this respect, is different from the Land Act. But the WLA contains other indications (such as the authority to grant perpetual leases) that statutory leases are not necessarily to have the characteristics of common law leases.

136               Kirby J in Wik regarded use of the expression “on behalf of the Crown” in s 204 of the Land Act as “one of a number of indications” that exclusive possession did not repose in the lessee (at 246). His Honour did not address the issue of construction identified by Gummow J arising out of the differences between the two paragraphs of s 204. In any event, Kirby J did not attribute any special significance to s 204.

137               Gaudron J referred to s 204 of the Land Act (at 146, 148). However, her Honour did so in the context of considering (and rejecting) Queensland’s argument that s 204 was intended to provide a remedy against indigenous inhabitants who sought to exercise what would otherwise be native title rights. Toohey J’s approach was similar (at 120-121).

138               The Lessee was correct to say that the WLA contains no provision equivalent to s 204 of the Land Act. However, s 255 of the Crown Lands Consolidation Act 1913 (NSW) (“the 1913 Act”) which was in force when the Lease was granted, was in similar although not identical terms to s 204. It established a statutory process for the removal of any person in the “unlawful occupation or use of any Crown land” and provided for possession to be taken on behalf of the Crown. The question of whether s 255 applied to land under the WLA is one of some difficulty, the authorities seeming to point in different directions: see Smith v Ward (1920) 20 SR(NSW) 299 (FC); compare Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (CA), at 159-160. The Lessee’s submission may not be correct in its assumption that s 255 of the 1913 Act did not apply to the WLA.

139               Even if s 255 of the 1913 Act did not apply to the land subject to the WLA, we do not think that the absence of such a provision leads to any different conclusion as to whether the WLA contemplates only the grant of leases that will necessarily extinguish native title rights over the leasehold land. Section 204 of the Land Act did not play a prominent part in the reasoning of the majority in Wik leading to the conclusion that the leases in that case did not extinguish all incidents of native title. It was merely one of many facts relied on by Kirby J. The significance attributed to s 204 by Gummow J is matched in the present case by other factors. Gaudron and Toohey JJ did not attribute any special importance to s 204 (except for the purpose of rejecting Queensland’s affirmative argument founded on the section).

The Effect of the Lease

140               For the reasons we have given, the WLA should be construed as contemplating the grant of leases that do not necessarily extinguish all native title rights existing in relation to land subject to the leases. This conclusion goes a considerable distance to resolving the effect of the Lease in the present proceedings so far as native title rights are concerned. The reason is that the critical provisions of the Lease, of necessity, reflect the requirements of the WLA. As a matter of construction of the Lease, the rights conferred on the lessee are not necessarily inconsistent with the exercise of every incident of native title that may exist in relation to the Leased Land. To adapt the language used in Ward (see [80] above), the terms of the Lease strongly suggest that some native title rights may be capable of exercise without abrogating the rights conferred on the lessee by the Lease.

141               The most important provision of the Lease for present purposes is that requiring the lessee not to use, or permit the Leased Land to be used, for any purpose other than grazing (cl 4). Just as the leases for pastoral purposes in Wik were construed as not authorising activities necessarily inconsistent with all incidents of native title, so the Lease does not authorise activities necessarily inconsistent with all native title rights that may exist over the Leased Land. Until the content of any native title rights is determined by reference to the evidence, all that can be said is that there may be inconsistency between some native title rights and the rights conferred by the Lessee. As discussed in Ward, that may lead to the conclusion that native title rights over the Leased Land have been partially extinguished or, perhaps (depending upon the evidence) wholly extinguished. But the material presently before the Court is not such as to allow the questions to be answered in the Lessee’s favour.

142               Consistently with the terms of s 18F(1) of the WLA, to which we have referred, the Lease obliges the lessee to reside on the Leased Land and to make it his bona fide residence (cl 2). Clause 2 is, however, expressed to be subject to the provisions of the WLA. It follows that the local land boards, during the period after the Lease was granted, were empowered to suspend the residence requirement or to allow it to be satisfied in a manner other than residence on the Leased Land itself (see s 18F(1)(i), (ii)). At this stage of the litigation there is no evidence as to whether the residence requirement was enforced and, if so, in what manner.

143               In any event, a provision in the form of cl 2, if complied with by the lessee residing on the Leased Land, is not necessarily inconsistent with the exercise of all native title rights that may exist in relation to the Leased Land. It is true that the area of the Leased Land (some forty-five square kilometres) is relatively small in comparison with the leaseholds considered in Wik. But it is still a large area of land compared with most blocks used solely for residential purposes. In these circumstances, the right (and obligation) of the lessee to use the land as his or her residence is not necessarily abrogated or impaired, for example, by a right founded on native title to visit a particular site some kilometres from the homestead, or to follow a particular path across the land a considerable distance from the homestead.

144               We do not mean to imply by what is said in the previous paragraph that there can be no inconsistency between a lessee’s right and duty under a WLA lease to reside on the leasehold and the exercise of native title rights. The point is that until the nature and incidents of native title rights are ascertained, the possibility that there will be no such inconsistency remains open.

145               As yet there is also no evidence as to whether the original lessee or his successors in title complied with the condition imposed by cl 23B (to enclose the homestead with a stock-proof fence). In accordance with the reasoning of Gummow J in Wik and of the Full Court in Ward, this would seem to be an example of “operational inconsistency”. If the area around the homestead has in fact been enclosed, it may be that the act of enclosure would be sufficient to destroy any native title rights in respect of the enclosed area. But, as Ward illustrates, operational inconsistency to this extent would not necessarily extinguish all native title rights over other areas of the Leased Land. The extent of extinguishment by operational inconsistency will depend on the evidence ultimately adduced in the proceedings.

146               The Lease contains the fencing condition envisaged by s 18A of the WLA. Clause 5 of the Lease provides that the lessee is to enclose the land with a substantial stock-proof fence within one year of the commencement of the Lease, to the satisfaction of the Commissioner. Again, there is no evidence as to whether cl 5 was enforced or whether the Commissioner chose to exempt the original lessee or his successors in title from the requirement. Even if the fencing requirement were enforced, it would not necessarily mean that the lessee’s occupation of the Leased Land would be inconsistent with all native title rights. The obvious purpose of cl 5 is to ensure that livestock remain within the Leased Land, not that persons legitimately seeking access to the land are kept out. Fences have gates or other entry points. The erection of stock-proof fences around the perimeter of a leasehold property pursuant to an obligation to fence may well not be inconsistent with certain forms of accessorial native title rights.

147               The reservations and exceptions in the Lease, not surprisingly, mirror the provisions of the WLA. Thus the Lease reserved to the Crown mineral rights and (more importantly for present purposes) the right to proclaim camping and other reserves without compensation to the lessee. The Crown is entitled to resume portions of the Leased Land for any public purpose mentioned in or declared as such under the Crown Lands Consolidation Act 1913 (NSW). The Lease also contains provisions corresponding to the covenants, reservations and exceptions specified in Schedule A to the WLA. In particular, cl 11, which prevents the lessee from obstructing or interfering with any reserves or tracks or the unlawful use thereof, corresponds to par (e) of Schedule A. See also cl 23(c). The Lease includes other restrictions on the rights and power of the lessee such as limitations on the use of stock (cl 17), a prohibition on the grant of grazing rights over the Leased Land without the Minister’s consent (cl 21) and an obligation not to interfere with the inspection of, or the carrying out of certain works on the Leased Land (cll 12, 22, 23A, 23C, 23D).

148               For reasons that have been given, these exceptions and reservations are framed sufficiently broadly to make it impossible to conclude that there are no native title rights which are capable of being exercised consistently with the rights of the Lessee as defined (and limited) by the Lease. To put it another way, there may well be particular native title rights that are capable of being exercised consistently with the rights of the Lessee under the Lease. This is sufficient to prevent the questions being answered in the manner sought by the Lessee at this stage of the litigation.

CONCLUSION

149               In order for the Lessee to succeed in having the questions, in particular questions (c)(i), answered in the affirmative, he must show that the rights granted under the Lease are necessarily inconsistent with all native title rights that may exist over or in relation to the Leased Land. The Lessee has failed to do so. It will be necessary for evidence to be taken to ascertain the nature and content of the native title rights (if any) that existed immediately prior to the grant of the Lease in 1955. The inconsistency of incidents test will then determine whether any of these rights survived the grant of the Lease.

150               In our opinion, it is unnecessary to answer questions (a) and (b). In the circumstances, question (c) should be answered as follows:

“Strictly unnecessary to answer, but on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involved the presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease.”

Associate:

Dated: 5 April 2000

TABLE OF CONTENTS

BEAUMONT J.

INTRODUCTION.................................................................................................................... 1

QUESTIONS............................................................................................................................. 2

AGREED FACTS..................................................................................................................... 2

ENACTMENT OF THE WESTERN LANDS ACT 1901 (NSW)......................................... 4

LEASE....................................................................................................................................... 4

BACKGROUND TO THE INTRODUCTION OF THE WESTERN LANDS BILL........ 10

SECOND READING SPEECH 1901.................................................................................... 12

INTRODUCTION OF LEASES IN PERPETUITY – THE 1932 AMENDMENTS.......... 12

1934 AMENDMENTS – THE INTRODUCTION OF s 23................................................ 13

SCHEME OF THE WLA AND REGULATIONS................................................................ 14

(a) The WLA as in force on 31 August 1953................................................................... 14

(b) The relevant provisions of the Regulations............................................................... 22

CHARACTERISTICS OF A STATUTORY LEASE IN PERPETUITY............................. 23

REASONING AND DECISION IN WIK............................................................................. 28

Some background to the leases.......................................................................................... 29

The reasoning of Toohey J................................................................................................. 31

Toohey J’s postscript......................................................................................................... 35

The reasoning of Gaudron J................................................................................................ 36

The reasoning of Gummow J.............................................................................................. 38

The reasoning of Kirby J.................................................................................................... 40

IDENTIFICATION OF THE RATIO OF THE MAJORITY JUDGMENTS IN WIK..... 43

IDENTIFICATION OF MATTERS NOT PART OF THE MAJORITY RATIO IN WIK44

(a) The use of early colonial history................................................................................ 44

(b) The significance of the vast size and remote location of the lands leased in Wik... 46

CONCLUSIONS ON THE SEPARATE QUESTIONS....................................................... 47

(a) Possession issues – the lessee’s rights...................................................................... 47

(b) Extinguishment issues – native title holders rights................................................... 50

COSTS..................................................................................................................................... 51

POSTSCRIPT......................................................................................................................... 51

APPENDIX............................................................................................................................. 52

REASONS FOR JUDGMENT

(ON THE SEPARATE QUESTIONS)

BEAUMONT J:

INTRODUCTION

151               Before the Full Court for determination are several separate questions. The background to the questions is as follows. In the principal proceedings, an application has been made under the Native Title Act 1993 (Cth) (“the NTA”) for a determination of native title. The claimant in the application, the applicant, is Michael Anderson, for and on behalf of the Euahlay-I Dixon Clan (“Mr Anderson”). The Court has jurisdiction to hear and determine applications relating to native title: NTA, s 81; see also s 213(2). The first respondent, Douglas Wilson (“the lessee”), the lessee in perpetuity of the lands the subject of the native title claim, applied for an order under O 29 r 2 of the Federal Court Rules that there be a decision of several questions (“the questions”) separately from other questions raised in the principal proceedings. This was ordered, and, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), it was further ordered that the questions be heard and determined before a Full Court.

QUESTIONS

152               The questions, similar to those considered by the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, are as follows:

“(a) By virtue only of:

(i) the Western Lands Act 1901 (NSW); and

(ii) the regulations thereunder, as in force at the time of the grant of the lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(b) If the answer to the question (a) is “No”, by virtue of:

(i) the Western Lands Act 1901 (NSW);

(vi)             the regulations thereunder, as in force at the time of the grant of the Lease; and

(vii)           one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(c) If the answer to question (a) or question (b) is “Yes”, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the Lease?”

AGREED FACTS

153               The agreed facts are:

1. Mr Wilson is the lessee of Western Lands Lease 7951 (“the Lease”).

2. The Lease was validly executed under the Western Lands Act 1901 (NSW) (“the WLA”) on 11 January 1955, effective from 31 August 1953.

3.                  A copy of the Lease was annexed to the statement of agreed facts. (Its provisions are described below. The Lease was granted in perpetuity, subject to the provisions of the WLA and Regulations.)

4. Mr Anderson, for and on behalf of the Euahlay-I Dixon Clan, is a claimant under the NTA (“the Claim”).

5. The land the subject of the Lease (“the Leased Land”) is subject to the Claim.

154               Although the agreed facts did not include details of the Leased Land itself, the Status Search Report provided to the Court by the Department of Land and Water Conservation provided the Court with information that was not in dispute, as follows.

155               The Leased Land is located in what is known as the Western Division of New South Wales and is approximately thirty kilometres south of the Queensland border. The nearest population centres are Lightning Ridge (pop 1,814 in 1996) and Collarenebri (pop 544). The area granted under the Lease was 10,820 acres (approximately 4,378 hectares or forty four square kilometres). Although nothing turns on it for present purposes, a subsequent survey recorded on the Lease shows that the Leased Land was found to contain 11,118 acres. This was further reduced to 11,099 acres in 1965 by the withdrawal under the Public Roads Act 1902 (NSW) of nineteen acres for the purposes of a road.

156               As indicated in the Lease itself, the Leased Land was set apart for disposal exclusively for members and discharged members of the armed forces pursuant to s 3 of the War Service Land Settlement Act 1941 (NSW). This occurred by a notification in the Gazette on 16 January 1953. The notification described the “class of country” as follows:

“Class of country – Fairly open to open black and grey soil country, with a red sandy ridge in Reserve Paddock, running into patches of heavy black soil in the southern section of the block with a small area of red soil near Myall Tank. The northern parts of both Bottom and Top Myall Paddocks are subject to inundation in high floods. Timbered with box, belah and coolabah, lightly ringbarked, with fair to good edible scrubs in wilga, whitewood, berrigan, nardoo, scattered orange and currentbush. Very well grassed with coolah, blue, mitchell, flinders, neverfail, sugar and umbrella grasses.

…

Average annual rainfall – About 16 inches.

…

Improvements - Fencing, tank and ringbarking. (Privately owned.)”

157               Notification of the grant of the Lease under the WLA,in respect of an area of Crown land set aside for disposal under the War Service Land Settlement Act,was made in the Gazette on 31 July 1953.

158               Reference should be made to the WLA as a central element in the questions for decision.

ENACTMENT OF THE WESTERN LANDS ACT 1901 (NSW)

159               According to its long title, the WLA provides for the vesting of the management and control of that substantial portion of New South Wales known as the Western Division in the Western Land Board; for the grant of extensions of leases in the Division and tenant-right in certain improvements; and for all necessary and incidental purposes.

160               The boundaries of the Western Division are specified, along with the boundaries of the State’s Eastern and Central Divisions, in the Schedule of the Crown Lands Consolidation Act 1913 (NSW). The Western Division comprises approximately 43 per cent of the State, embracing nearly eighty million acres (approximately thirty-two million hectares), of which almost seventy seven million acres (over 96 per cent) is held under Western Lands leases (see Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 per Kirby P at 694; A G Lang, Crown Land in New South Wales (Butterworths, 1973) at 461; I Benecke, “Wik, Worry and Woe in the Western Division” (1997) 35(4) LSJ 54 at 54-55).

161               Later in these reasons, specific reference will be made to the detail of the relevant provisions of the WLA. They are, as noted, of central importance. For immediate purposes, it is sufficient to note that the Lease was granted under s 23 of the WLA. By s 23(1)(a) it is provided that it is lawful for the Minister to grant leases of Crown lands, inter alia, as “leases in perpetuity”.

LEASE

162               The Lease itself is entitled a “Western Lands Lease” and is headed up as an instrument of the (Crown in the right of) State of New South Wales. It is in the form of a document which is printed, but to which several typed provisions have been added, including a reference to its purpose of “grazing”. The Lease was executed on 11 January 1955 but was expressed to take effect from 31 August 1953. The Lease, recorded as WLL 7951, was enrolled in the Register of Western Lands Leases on 16 March 1955. The lessee named in the Lease was Ross Patrick Smith. The Lease was subsequently transferred to and by several other lessees. It was transferred to Mr Wilson in 1984.

163               The document refers, at its commencement, to s 23 of the WLA and to the fact that the Leased Land is a “soldier’s block”. It recites the grant of a lease in perpetuity. It is expressed as a grant of the land, of about 10,820 acres, to be held as a Western Lands lease in perpetuity from 31 August 1953.

164               The recitals to the Lease and its habendum are in the following terms:

“Whereas certain Crown Lands in the Western Division …were duly set apart in accordance with the provisions of the War Service Land Settlement Act, 1941, for disposal by way of lease exclusively to members of the forces and discharged members of the forces … for the purpose of grazing -----------------------------------------------------under the provisions of the [WLA] … (hereinafter called the said Acts) AND WHEREAS ROSS PATRICK SMITH of Melrose Street, CONDOBOLIN -----------------------------in Our said State --------------------- did on the SIXTEENTH day of MARCH 1953 make an application under the provisions of the said Acts for a Lease of the land hereinafter mentioned and all things required by law have been done to enable a Lease of such land to be duly granted AND WHEREAS Our Minister for Lands of Our said State has granted to the said ROSS PATRICK SMITH a lease of the land hereinunder mentioned in perpetuity at the rent and upon and subject to the exceptions reservations conditions and provisions hereinafter mentioned NOW KNOW YE that in pursuance of the provisions of the said Acts WE DO HEREBY grant unto the said ROSS PATRICK SMITH (who with his executors administrators and assigns is hereinafter referred to as the lessee) ALL THAT piece or parcel of land being portion numbered WL. 3878 containing ten thousand eight hundred and twenty (10, 820) -------------------------------------------------------------------------------------------------------acres more or less situated in the County of Finch (being Western Lands Lease No. 7951) as delineated in the plan catalogued W.L.C. 6351 … TOGETHER WITH ALL rights easements and appurtenances to the same belonging … TO HOLD the said land unto the Lessee as a Western Lands Lease from the thirty-first day of August 1953 in perpetuity subject to the provisions of the said Acts and the Regulations thereunder and to the Reservations Exceptions Conditions and Provisions herein contained YIELDING AND PAYING therefor the yearly rent of two hundred and twenty-five pounds eight shillings and four pence or such other rent as shall be or become payable by reason of the annual rent having been or being fixed or determined in due course of law (whether because of the capital value having been or being re-determined or otherwise) ….”.)

165               The Lease is expressed to be subject to the following exceptions and reservations:

“… EXCEPTING AND RESERVING unto US OUR HEIRS and SUCCESSORS all minerals as defined in the Mining Act 1906 or any Act amending the same and all metals gems precious stones coal and mineral oils which may be in under or upon the said land together with full power and authority for US OUR HEIRS and SUCCESSORS and for any person lawfully authorised in that behalf to enter upon the said land and search for work win and remove all or any of the said minerals metals gems precious stones coal and mineral oils: AND FURTHER RESERVING unto US OUR HEIRS and SUCCESSORS the unrestricted right to proclaim Travelling Stock Camping or other Reserves within the said land and to withdraw any land for the purposes of Roads Travelling Stock Camping or other Reserves without payment of any compensation therefor: AND FURTHER RESERVING unto US OUR HEIRS and SUCCESSORS all powers and provisions necessary for the resumption as hereinafter provided of the said lands or any part thereof for mining purposes townships or any public purpose mentioned in or declared as such under the provisions of the Crown Lands Consolidated Act 1913 as amended by subsequent Acts… .” (Emphasis added.)

166               The provisions of the Lease declare that –

“all conditions and provisions contained in the [WLA] and … Regulations … thereunder are in so far as the same are applicable hereto embodied and incorporated with these presents as conditions and provisions of the lease hereby expressed to be granted”.

167               The Lease then sets out a number of conditions and other provisions which regulate the use of the land in substantial respects. The conditions and other provisions can be summarised, in so far as relevant, as follows (the numbers below correspond to the clause numbering in the Lease):

(1) The lessee shall pay the rent reserved annually in advance.

(2) The lessee shall, subject to and in accordance with the provisions of the WLA, “reside on the … land and make it his bona fide residence”.

(3)               The lessee shall “hold and use the … land bona fide for his own exclusive benefit and shall graze own stock upon the land to the satisfaction of the Minister”.

(4)               The lessee will not “use or permit to be used the … land for any purpose other than grazing and the [l]essee shall improve and develop the … land for grazing to the satisfaction of the Minister”.

(5)               The lessee shall “enclose the … land within one year from the date of commencement of the lease with a substantial stock-proof fence to the satisfaction of the [Western Lands] Commissioner”.

(7) The lessee shall (i) destroy rabbits, dogs, foxes and such other vermin and such weeds declared noxious and keep the land free of such vermin and weeds in accordance with directions given by the Commissioner; and (ii) foster and cultivate such edible shrubs and plants as the Minister for Lands directs and the Commissioner considers can be advantageously and successfully cultivated.

(8)               The lessee “shall keep and preserve sufficient timber” on the land for the purposes of providing shade and firebreaks.

(10) The lessee “shall not have any property rights” in the timber on the land and “shall not ringbark, cut or otherwise destroy” any timber or scrub without permission of the Commissioner, “provided that the lessee may use, in such manner as the Commissioner may from time to time determine, edible trees or scrub for stock feeding purposes, and may take such timber … for building and other purposes … as may reasonably be required by him”.

(11) The lessee “shall not obstruct or interfere with any reserves, roads or tracks” or their lawful use by any person.

(12) The lessee “shall maintain and keep in reasonable repair all improvements on the … land” and allow the Minister or Commissioner and any person authorised by them to enter and inspect the land, buildings and improvements at all times.

(14) The lessee “shall not transfer convey assign or sublet the … land or any portion thereof or mortgage or charge the same except in conformity with the provisions of the said Acts with the repayment of moneys advanced on the security thereof without having first obtained the written consent of [the] said Minister”.

(15) The lessee “shall not overstock, or permit or allow [the demised land] to be overstocked”. The Commissioner’s decision as to what constitutes overstocking is final and the lessee “shall comply with any directions of the Commissioner to prevent or discontinue overstocking”.

(16) The lessee “shall permit any person duly authorised in that behalf to enter upon the … land and search for work win and remove all or any minerals metals gems precious stones coal or mineral oils in under or upon the … land”.

(17) The lessee “shall, if the Minister so directs, prevent the use by stock of any part of the … land for such periods as the Minister considers necessary to permit the natural receding and regeneration of vegetation and for this purpose the [l]essee shall erect within the time appointed by the Minister such fencing as the Minister may consider necessary”.

(18) The lessee shall “take all necessary steps to protect the … land from bush fire”.

(20) The Lease shall not be transferred (except by way of mortgage or discharge of mortgage) for ten years after its commencement, except to a member of the forces, discharged member of the forces or other eligible person under the War Service Land Settlement Act 1941 (NSW); or in the event of the death of the lessee, to the widow, widower, child or children of the lessee, or to a member of the forces, etc.

(21) The lessee “shall not grant any grazing rights over any part of the land or graze stock thereon under any stock partnership or agist stock thereon” without the Minister’s written consent; and if any stock is found depasturing on the lease without such consent, it shall be prima facie evidence of breach.

(22) The lessee “shall permit the Minister for Conservation, or any person acting on his behalf, to enter on the land … for the purpose of any survey or investigation, or of carrying out such work in connection with soil conservation and erosion mitigation as he may consider necessary”.

(23A) The lessee “shall not interfere with any telephone line crossing the land and shall allow reasonable access” for maintenance and repair.

(23B) The lessee “shall within three years from the date of the commencement of the lease, enclose with a substantial stock-proof fence an area of about one hundred and sixty acres surrounding the homestead, and shall keep such area free of stock, except that the lessee may graze not more than four head of large domestic stock on such enclosed area”.

(23) It is agreed and declared that:-

(a)                “no transfer or assignment of [the] Lease or any agreement to sublet the land or any part thereof shall affect any forfeiture incurred or any debt or liability accrued” under this instrument;

(b)               “no transfer of [the] Lease shall be registered or recognised if any rent payment or other dues to the Crown are in arrear”;

(c)                “no public rights now existing or hereafter to be created in and over any Travelling Stock Route Reserve or Camping Reserve which may be included within the land shall be affected by the granting of [the] Lease”;

(d)               “it shall be lawful for Our Governor of the said State by notification to be published in the Government Gazette to withdraw from this Lease any lands required for mining purposes townships or any public purpose mentioned in or declared as such under the provisions of the Crown Lands Consolidation Act 1913 or any Act amending the same Provided that upon such publication as aforesaid the [l]essee shall be entitled to such compensation in respect of the land so withdrawn for the unexpired term of those presents and for the improvements owned by the [l]essee upon the land so withdrawn as aforesaid as may be determined by [the] said Minister ….”.

(24) This instrument is made upon the “express condition” that if the rent payable is more than six months in arrears, or whenever there shall be a breach or non-observance by the lessee of any other condition or provision on the part of the lessee to be observed or performed, it shall be lawful for the Minister, after report from the Commissioner, to declare the Lease cancelled and forfeited and the Minister is then entitled to enter upon the land and expel the lessee, without releasing the lessee from liability.

(25)           The applicable conditions and provisions of the Lease are to be read and construed as covenants by the lessee.

168               Clauses 1-22 and 23-25, summarised above, are printed. Clauses 23A – 23D are typed and have been inserted between cll 22 and 23.

BACKGROUND TO THE INTRODUCTION OF THE WESTERN LANDS BILL

169               Before reference is made to the relevant provisions of the WLA, mention should be made of the legislative history. A Royal Commission was appointed by the New South Wales Parliament in 1900 to inquire into the difficulties facing Crown tenants in the Western Division. The report, tabled in the following year, provides the background to the enactment of the WLA (see Legislative Assembly, New South Wales, Royal Commission to Inquire into the Condition of the Crown Tenants (Western Division of New South Wales) – Report and Summary of Evidence (1901)). (For an account of the Royal Commission’s report and the scheme introduced in 1901, see C J King, An Outline of Closer Settlement in New South Wales (New South Wales Department of Agriculture, 1957), section 7.) The Royal Commission explained that the pastoral industry in the region had become unprofitable in the preceding decades largely due to a series of environmental misfortunes – frequent periods of drought, a disastrous rabbit plague, sand-storms arising from the destruction of vegetation, and the spread of non-edible shrubs – all of which had contributed to an alarming deterioration in the quality of the land. Additionally, overly optimistic initial estimates of the land’s carrying capacity were blamed for the problem of over-stocking which had further exacerbated the degradation process. Profits had also suffered due to the contemporaneous decline in prices for pastoral products. The arduous conditions in the Western Division had led to the widespread abandonment of pastoral properties and caused the value of pastoral property in the region to fall by 50 to 80 per cent during the fifteen years prior to the Commission’s report (at ix – xii).

170               The Commission rejected (at xviii) the option of allowing the present lessees simply to “drift along to the termination of the existing leases”. Such a policy would prolong

“the condition of suspended animation which at present characterises in a marked degree the western pastoral industry, with the accompaniment of neglected improvements and non-progressive management; and it might easily lead to the abandonment of holdings in utter despair. The climatic conditions of the west, it may be assumed, are fixed. The only hope appears to lie in a better system of management than has obtained in the past.”

171               In formulating its recommendations, the Commission identified a number of defects in the prevailing system of land management, including excessive rents and inadequately sized acreages. It advocated the suitable adjustment of both, as well as the writing down of mortgages. Its key proposal was to extend the pastoralists’ tenure, on the basis that this measure would foster occupation and improvement of the land. The report concluded (at xviii) that:

“A longer tenure giving the lessee a promise that he will be secured in the fruits of his labour, would seem to be the only effective encouragement that the State can give”.

172               Particular sympathy was expressed in the report for the plight of the homestead lessee, whom, it was said, (at ix) –

“laboured under an additional disability, namely, being limited by law to an area insufficient over the greater portion of the Division to afford anything like an adequate means of subsistence”.

173               Recognising this constraint on the viability of the homestead lessee’s operation, the Commission proposed (at xxi) that:

“In addition to an extension of the period of homestead leases held bona fide for the sole use and benefit of the lessees, we recommend that wherever practicable the areas be extended to an acreage sufficient to carry not less than 4,000 sheep in the most favoured parts of the Western Division, and up to say from 6,000 to 8,000 sheep in the more distant and inferior parts.”

174               The report further proposed that the administration of the Western Division should be entrusted to a single “Pastoral Board”, which would replace the local land boards and the Land Appeal Court established under the Crown Lands Act 1884 (at xxiv – xxv).

175               The Commission’s report made no mention of Aboriginal rights or interests in land, presumably because this was not within its terms of reference.

SECOND READING SPEECH 1901

176               The Second Reading speech for the Western Lands Bill echoed the findings of the Royal Commission, its central themes being the depressed state of the pastoral industry in the Western Division, the decline in productivity and the urgent need to improve the situation by decreasing the landholders’ rent and increasing their tenure. However, it too failed to mention any native title rights and interests in land (see New South Wales, Parliamentary Debates, Legislative Assembly, 21 November 1901 and 3 December 1901). Nor is there anything to suggest that the lessee’s interest in the land would be significantly limited. Rather, the impression created is that the proposed tenures offered pastoralists greater security and more control, together with increased opportunities to obtain finance. These sentiments are reflected in the Secretary for Lands’ observations that -

“Clause 14 is the one that settles the term of the leases. As I say, that is to be settled by this House of Parliament, and I cannot conceive that forty-two or fifty-two years or any other number of years is a day too long. In fact, with proper power to take back land that is wanted for settlement and assuming we get a reasonable and proper value for our land, it seems to me immaterial whether the period is forty years or 400 years, or a lease in perpetuity. …Until it is wanted for settlement the man with a long lease has the heart to go into his work and improve the land – spend money upon it and make it more productive….” (New South Wales, Parliamentary Debates, Legislative Assembly, 21 November 1901 at 3777).

INTRODUCTION OF LEASES IN PERPETUITY – THE 1932 AMENDMENTS

177               The WLA was amended in 1932 to allow Western Lands leases to be extended to leases in perpetuity, as long as it was in the public interest to do so and the applicant did not hold lands substantially exceeding a home maintenance area: see s 18E. In the case of land best adapted to grazing, a “home maintenance area” was an area “which when reasonably improved will carry in average seasons and conditions a sufficient number of stock to enable the holder to reasonably maintain an average family” (Western Lands (Amendment) Act 1932, s 3). The concept of a home maintenance area was intended to prevent lessees of large pastoral holdings from obtaining leases in perpetuity. The amendment was introduced when leaseholders were suffering the effects of the Depression.

178               In his Second Reading speech, the Secretary for Lands explained the Government’s reasons for allowing perpetual leases:

“Unless the financial institutions are satisfied that a lessee will get a longer lease, they are not prepared to lend him the money he so urgently requires. But if those who do not hold more than a home maintenance area are given a lease in perpetuity, the financial institutions will be prepared to lend money upon that security. No man in his senses, who has money to lend, would lend it on a lease that expired in ten years’ time, but if the applicant has a lease in perpetuity I am sure every hon. member will admit there is reason for a man to feel quite safe. We make provision that transfer can take place in the future, but they will be restricted to the usual home maintenance conditions. … in no circumstances will [he] be permitted to dispose of his land to another man who already holds a living area.” (New South Wales, Parliamentary Debates, Legislative Assembly, 7 December 1932 at 2661 – 2662.)

1934 AMENDMENTS – THE INTRODUCTION OF s 23

179               By 1934, the position of Western lessees was again serious as a result of a combination of drought and the depression. Most settlers held areas that were home maintenance or less, but a relatively small number of lessees (223) held 57 per cent of the country. The amending legislation introduced a scheme whereby the larger landholders would have portions of their lands withdrawn at the end of their leases. If such leaseholders voluntarily surrendered part of their lands, they would receive an extension of their leases. (See C J King, at 177-179.) It was in this context that s 23 of the WLA (pursuant to which the Lease was granted) was introduced.

180               In the Second Reading speech for the Western Lands (Amendment) Bill 1934, the Minister for Lands spoke of the Bill (New South Wales, Parliamentary Debates, Legislative Assembly, 17 May 1934 at 401) as “a blessing to many who are desperately in need of additional areas and others who are patiently waiting for a change to secure a home in the west”. The Minister said (at 402):

“I find the most urgent problems of the Western Division to be – (1) to provide small holders with additional land so that they may be placed in a position to increase their flocks, and consequently their incomes, and thus bring about their sound establishment upon the land, and at the same time (2) to find the best practicable means of achieving this result. The whole matter has received careful and prolonged consideration by the Government. All phases of the problem are directed to the fact that large areas of land are held by a comparatively small number of holders, and that very little vacant Crown land remains to be disposed of in the Western Division. This position immediately gives rise to the proposal of looking to the large holdings for areas to build up the holdings of the small men.”

181               The Minister went on to say (at 402):

“We have consulted representatives of both large holders and small holders on a number of occasions to ascertain a fair and reasonable basis for bargaining. All parties were unanimous that the only practicable thing to do was to frame a proposition by which large holders would give up portion of their land amicably, and in return accept an extension of the terms of the balance of their lease, together with certain modifications of the conditions of their leases, as compensation for the areas released to the Crown.”

SCHEME OF THE WLA AND REGULATIONS

(a) The WLA as in force on 31 August 1953

182               As noted, the Lease was granted on 16 March 1955 and was expressed to take effect from 31 August 1953. The parties appeared to accept that the material date for determining the effect of the WLA was the date the lease took effect. While it is arguable that the date of the grant is the material date, the legislation was not relevantly amended between August 1953 and March 1955. Accordingly, this summary refers to the WLA as at 31 August 1953.

183               The WLA repealed the Crown Lands Act 1884 (NSW) in its application to specified Crown land holdings in the Western Division, unless exempted under the WLA itself (s 2).

184               The administration of the WLA was vested in a Western Lands Commissioner (“the Commissioner”) appointed by the Governor: s 4.

185               The Minister was empowered to direct any local land board to deal with any matter, question or inquiry arising under the WLA (s 10) and to require the board to make a report (s 10A). The Minister could refer any question of lapse, voidance or forfeiture to the local land board for due investigation and decision in open court (s 10B).

186               The Minister, the Commissioner, or other person authorised, was empowered at any time to enter upon any Crown lands within the Western Division for the purpose of giving effect to the provisions of the WLA or the Crown Lands Acts (s 12).

187               Section 18 dealt with terms and conditions of leases, and aspects of forfeiture, relevantly as follows:

“18. All leases issued … under the provisions of this Act … shall contain the covenants, reservations, and exemptions set out in Schedule A hereto, or such of the same as the Minister may deem applicable … and no lease shall convey any authority to carry on mining operations thereon. Every such lease shall contain a provision to the satisfaction of the Minister for the destruction of rabbits, and any lease shall, in the discretion of the Minister, after report from the Commissioner, be liable to forfeiture for breach of any of the covenants therein contained or annexed by law thereto:

Whenever in pursuance of the provisions of this Act any holding or any right, title or interest to or in any land, becomes liable to be forfeited, such forfeiture may be declared by the Minister by notification in the Gazette.

…

No forfeiture, cancellation or lapsing shall operate to extinguish any debt to the Crown.

The Minister may, in the recommendation of the Commissioner, waive or reverse, whether provisionally or otherwise, and on such conditions as he may think fit, any such forfeiture, cancellation, or lapsing. Any such reversal shall be notified in the Gazette.”

188               Schedule A, substantially regulating the use of the land along the lines of the conditions and provisions of the Lease, was as follows:

“Schedule A

COVENANTS, reservations, and exceptions referred to in section eighteen:-

(a)               To pay rent annually in advance. To pay any moneys owing to the Crown under the provisions of the Crown Lands Acts.

(b)               To take, within a specified time, such steps and measures to destroy rabbits, dogs, and other vermin as the Commissioner shall from time to time direct, and to keep the lease free of vermin during the currency of the lessee to the satisfaction of the Commissioner.

(c) To destroy such noxious weeds as the Commissioner may from time to time direct.

(d) Except for the purpose of building, fencing, or for firewood, not to destroy, or permit the destruction of any timber on the lease without the written consent of the Commissioner.

(e) Not to obstruct or interfere with any reserves, roads, or tracks, or the use thereof by any person.

(f) To foster and cultivate such edible shrubs and plants, and take such steps in this respect as the Minister may from time to time direct.

(g) To furnish such returns or statements as the Commissioner may from time to time require in connection with any lease or license, or freeholds or conditional purchases in the Western Division, or worked in conjunction with any lease or license in the Western Division.

(h) To furnish such returns or statements as the Commissioner may from time to time require in connection with any sheep or large stock, cost of improvements, working expenses, or any other matter relative to any holding in the Western Division, or to any of the matters herein mentioned in connection with any property worked in conjunction with any lease or license in the Western Division.

(i) To permit the Commissioner and all persons authorised … to enter and view the whole or any part of the lease or buildings or other improvements thereon.

(j) To keep in reasonable repair all improvements on the lease.

(k) Reservations in favour of the Crown of all minerals, metals, gems, precious stones, coal, and mineral oils, together with all rights necessary for ingress, egress, search, prosecution, and removal and all incidental rights and powers.

(l) The unrestricted right to proclaim travelling stock, camping or other reserves. The unrestricted right to withdraw any land for the purposes of roads or travelling stock, camping or other reserve.

(m) The unrestricted right for the Minister, the Commissioner, or any persons duly authorised in that behalf to enter upon and examine such land and the improvements thereon.

(n) The right, if the rent or license fee be not paid on the due date, to impose a penalty not exceeding ten per cent per annum on the amount unpaid.

(o) A proviso that if rent shall be in arrear for more than six months after due date, or if there has been a breach or non-performance of any of the lessee’s covenants or conditions the Minister may cancel the lease.

(p) Provisions for resumption of lands for mining purposes, townships, or any public purpose under the provisions of the Crown Lands Acts; and for compensation for resumption.

(q) Reservations in favour of the Crown necessary or proper for giving effect to any Act or regulation for the time being in force.”

189               All leases were to “be subject to a condition that the boundaries of the lands leased shall be fenced within such period and with such class of fencing as may be determined by the Commissioner not being a rabbit-proof fence …” (s 18A). However, a proviso empowered the Commissioner to exempt, vary or modify this condition.

190               By section 18D:-

“(i) No lease other than a special lease for that purpose shall confer any right to remove material from the leased land or to prevent the entry and removal of material by authorised persons.

(ii)               A lessee may take from land under lease to him and not comprised within a timber or forest reserve such timber and other material for building and other purposes on the land or on any contiguous land held in the same interest as may reasonably be required by him.

(iii)             No lessee shall prevent any … authorised [persons] from cutting or removing timber or material or from searching for any mineral within the land under lease.

(iv)             A lessee shall, if the Minister so directs, prevent the use by stock of any part of the land for such periods as the Minister considers necessary to permit of natural reseeding and regeneration of vegetation; and, for this purpose, the lessee shall erect within the time appointed by the Minister such fencing as the Minister may consider necessary.

(v)               A lessee shall not overstock or permit or allow to be overstocked the said land, and the decision of the Commissioner as to what constitutes overstocking shall be final, and the lessee shall comply with any directions of the Commissioner to prevent or discontinue overstocking.

(vi)              A lessee shall use iron or steel posts (with wooden strainers) for the erection or repair of all fencing on the land, except that, in special cases, the Commissioner may permit the use of other posts.”

191               Section 18E (inserted in 1932) provides for the extension of a subsisting lease to a lease in perpetuity upon application by the holder.

192               Section 18F (inserted into the WLA in 1934) made residence a condition of any lease applied for after the commencement of the Western Lands (Amendment) Act 1934:-

“18F. (1) A condition of residence for a term of five years shall attach to every [such] lease … in respect of land set apart for disposal by way of lease generally and shall be performed by the lessee or some other person approved by the Commissioner.

Residence shall commence within six months after the commencement of the lease:

Provided that-

(i)                 the local land board may suspend the condition of residence for such periods and upon such conditions as it may determine; or

(ii)               the lessee or such other person may with the permission of the local land board perform such condition by residing anywhere within a reasonable working distance of the lease.

(2)(a) A provision in any instrument of lease or a condition attaching to any [such] lease …to the effect that the lessee shall occupy the land within the lease during the whole of the term of the lease by the continuous and bona fide residence of himself or some other person approved by the Commissioners of the Western Land Board of New South Wales in writing shall cease to have effect upon the issue by the local land board of a certificate that continuous residence for a period of five years has been performed upon the lease by or on behalf of the lessee or his predecessors in title.

(b) ….”

193               Section 18G dealt with the transfer, conveyance, assignment or mortgage of leases applied for after the 1934 amendments. Except as otherwise provided in the WLA, no transfer, conveyance, assignment, mortgage or other dealing (except a discharge of mortgage) was to be effected unless the consent of the Minister had first been obtained (s 18G(1)). Without limiting the generality of the Minister’s discretion, the Minister was to:

“… have regard to the desirability of preventing undue increases in the price of land and its use for speculative or uneconomic purposes, taking into account the circumstances of the particular case and all other relevant considerations including in particular, the following matters:-

(i)                 the amount of the purchase money, rent or other consideration to be paid and the extent to which it exceeds the fair market value of the lease or the rent or other consideration appropriate to that fair market value;

(ii) the terms of the transaction, and the terms of any other transaction in any way related thereto ….” (s 18G(1A)(a)).

194               The Minister was also given the power to refuse consent where the amount of purchase money, rent or other consideration appeared (to the Minister) to exceed by 10 per cent or more the fair market value of the lease or the rent (s 18G(1A)(c)). Any party to the transaction could appeal from a refusal of consent to the local land board (s 18G(1A)(d)).

195               No transfer could be effected unless the owner of the improvements had certified that such owner had received the value of the improvements (s 18G(2)). No transfer in contravention of this provision was valid for any purpose (s 18G(4)).

196               Any lease applied for after the 1934 amendments was liable to forfeiture if the holder sublet the lease or any part thereof, or granted any grazing rights over the lease or any part thereof without having first obtained the written consent of the Minister. If any stock not owned by the holder was found depasturing on the lease or any part thereof without the Minister’s consent, it was to be prima facie evidence of a breach of the subsection (s 18G(4A)).

197               Where a lease applied for after the 1934 amendments was mortgaged, and the mortgagee entered into possession of the lease under the mortgage, the mortgagee could hold the lease for a period of three years after the date of entry into possession, or for such further period as the Minister, after report by the Commissioner, permitted. The mortgagee could not foreclose the mortgage or transfer the lease, except by way of discharge or mortgage, without the consent of the Minister. If, within the period of three years, the mortgagee did not foreclose the mortgage or transfer the lease, the lease was liable to be forfeited (s 18H(1)).

Any covenant, condition, purpose or provision of a lease could, on the recommendation of the local land board and with the consent of the lessee, be varied, modified or revoked or added to by the Minister to such extent and on such terms as the Minister deemed desirable (s 18J).

198               The rent of any lease in perpetuity applied for after 30 June 1943 in respect of land set apart for grazing was to be determined by the local land board. The rent so determined was to be payable for a period of ten years commencing from the date of granting the lease. For each separate period of ten years thereafter, the rent payable was to be the rent as redetermined by the local land board (s 19B(a1)). In determining or redetermining the rent of any lease of land held for grazing, the board was to have regard to the productive capacity of the land under fair average seasons, prices and conditions (s 19B(3)). The rent was to be paid annually in advance (s 19B(4)).

199               Section 23, as previously mentioned, the source of the authority to grant the Lease, conferred upon the Minister the power to grant leases as follows:

“23(1)It shall be lawful for the Minister to grant leases of Crown Lands –

(a)               as leases in perpetuity; or

(b)               …

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

(2)               Except as otherwise provided in this Act, the Minister shall not grant a lease of any Crown lands unless such have been set apart for disposal by notification in pursuance of section twenty-four of this Act.

(3)               The Minister shall not grant a lease in perpetuity to an applicant who holds under any tenure (other than annual lease, preferential occupation license, occupation license or permissive occupancy then having not more than one year to run) an area of land which when added to the land applied for would substantially exceed a home maintenance area.

For the purpose of this subsection lands held by the spouse of the applicant shall be deemed to be lands held by the applicant….”

200               (By a new definition added in 1949, a “home maintenance area” was defined to mean:

“an area which when used for the purpose for which it is reasonably fitted, would be sufficient for the maintenance in average seasons and circumstances of an average family.” (s 3))

201               Section 24 gave the Minister the power to declare that any Crown lands be set apart for disposal as follows:

“24(1)The Minister, after such inquiry and report as may be deemed expedient, may declare by notification in the Gazette that the Crown lands comprised within any area to be described in the notification shall be set apart for disposal by way of-

(a)               lease generally; or

(b)               lease exclusively to holders of land under any tenure situated in the Central Division within a reasonable working distance of such lands; or

(c)                lease exclusively to holders of land under any tenure situated in the Western Division within a reasonable working distance of such lands; or

(d)               lease exclusively to both classes of holders of land as aforesaid.

(2)               The Minister shall specify in any such notification that the land is set apart for the purpose of grazing or grazing and agriculture combined or mixed farming, or for any similar purpose or purposes.”

202               Section 25(1) provided that a person not subject to any relevant disqualification could apply for a lease of land set apart under the WLA for disposal by way of lease. The local land board was to deal with all applications and to make a recommendation to the Minister (s 25(3)). (See generally Ex parte McDougall; Re Tully [1945] 45 SR(NSW) 188 (FC); Ex parte Hopkins; Re Cronin [1957] SR(NSW) 554 (FC).)

203               Section 28A of the WLA empowered the Minister, on the report of the Commissioner, to lease Crown lands for any purpose declared to be a “special purpose”.

204               Upon the expiration, forfeiture, surrender or other determination of any lease, all improvements, except as otherwise provided in the WLA, were to become the property of the Crown (s 29(1)). The Minister, after report by the Commissioner, could conditionally or unconditionally assure or grant tenant right in any improvements (s 29(2)). Tenant right was to accrue upon the determination of the lease (s 30(1)).

205               The Governor was also given power to make regulations for the general purpose of carrying the WLA into effect (s 36).

206               Section 44(1) gave the Governor the power to withdraw land from lease in certain circumstances as follows:

“44(1)The Governor may withdraw the whole or any part of the land comprised in any lease under this Act in any case in which in his opinion such land is required for the purpose of settlement, and in connection with such withdrawal shall acquire any freehold portions owned by the lessee and situated within and used in conjunction with such lease or part ….”

207               The lessee was thereupon entitled to compensation (for complete or partial withdrawal) of the market value of the interest held in the leased land based entirely upon its market value for pastoral or grazing purposes (s 44(1)).

(b) The relevant provisions of the Regulations

208               Regulations were made under the WLA. Regulations may be looked at, not to construe an overall scheme, or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is (per Mason J in Brayson Motors Proprietary Limited (In liquidation) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651 at 652). Two regulations should be noticed for present purposes:

·                    The Commissioner may at any time cause inspections to be made of any holding in order to ascertain whether the conditions, covenants, provisions and reservations had been or were being complied with (reg 79).

·                    For the purpose of giving effect to the provisions of the WLA or the regulations, it shall be lawful for any duly authorised person to enter upon any land and to open and remove fences and do all acts necessary for such purpose, provided that no unnecessary damage was done and that all damage, as far as practicable, was repaired (reg 80).

CHARACTERISTICS OF A STATUTORY LEASE IN PERPETUITY

209               The characteristics of a statutory lease in perpetuity in New South Wales have been considered by the High Court of Australia and by the New South Wales Court of Appeal, but not in the context of a claim of indigenous rights. Nonetheless, the cases are important for present purposes for their illumination of the nature of a statutory Crown perpetual lease. This is at least our starting point.

210               A lease in perpetuity of Crown lands was considered by the High Court in Hawkins v The Minister for Lands NSW (1949) 78 CLR 479. One of the issues was whether land so leased was nonetheless land “vested” in the Crown. The issue arose in this context. On an application to convert a Crown lease into a conditional purchase, it was argued that the conversion was not possible since the lands were no longer “Crown lands”, having been reserved from sale, and “lawfully contracted to be granted in fee simple”. But it was held that the perpetually leased lands remained “Crown lands” which could be converted; although their reservation from sale precluded their conversion. For our purposes, it follows that although perpetual, the Lease must be viewed as a lease, rather than as a notional fee simple.

211               Latham CJ said (at 487):

“Under a Crown lease, even though it is a perpetual lease, the Crown has become the landlord of the lessee, rent is payable to the Crown as landlord, and if the lessee does not perform the conditions of the lease the lease may be forfeited and then the Crown would have a complete title free from the lease. In my opinion it should not be held that lands subject to a Crown lease are not lands vested in the Crown.”

212               Dixon J said (at 492):

“… it is said for the lease-holder that the existence and the incidents of the Crown lease are inconsistent with the land falling within the definition of ‘Crown Lands.’ Because it is a Crown lease in perpetuity the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non-payment of survey fees, of forfeiture. It is difficult to find any ground for giving to the word ‘vested’ anything but its legal meaning. It can hardly be confined to ‘vested in possession.’ The reference in the exclusionary part of the definition to land granted in fee simple tends strongly against the view that after the grant of a limited interest in possession land is no longer ‘vested’ in the Crown for the purpose of the definition. In my opinion land subject to a Crown lease in perpetuity may still be ‘vested in His Majesty.’”

213               Some other characteristics of a lease in perpetuity, specifically a perpetual lease, as here, granted under the WLA were considered by the Court of Appeal of the Supreme Court of New South Wales in Minister for Lands and Forests v McPherson above. It was there held (Kirby P, Mahoney and Meagher JJA) that nothing in the WLA precluded the grant of equitable relief against forfeiture of an interest in such a lease. The case is important here, notwithstanding that no question of native title rights arose for consideration.

214               Kirby P (with whom Meagher JA agreed in material respects) first noted the “emphasis upon the parliamentary definition of rights and obligations” in respect of Crown land in de Britt v Carr (1911) 13 CLR 114 (per Griffith CJ at 122) and in Davies v Littlejohn (1923) 34 CLR 174 (per Isaacs J at 187 – 188). Kirby P went on to say (at 695 – 696):

“The conditional purchase was not an interest which existed at common law. It was therefore natural that, in respect of such a right, created purely by statute, that its incidents, features and obligations should be taken as defined by the statute creating that right. A lease, on the other hand, is an interest which has been known to the common law for centuries. Long before the Western Lands Act, and indeed long before the discovery and settlement of this country, the Crown had leased land to its subjects. Those subjects thereby acquired interests in such Crown leases.”

215               Kirby P referred (at 696) to frequently cited observations of Griffith CJ in O’Keefe v Williams (1910) 11 CLR 171. Griffith CJ said at 191 – 193:

“In my opinion, when one man is put in possession of land by another, full effect cannot be given to the intention of the parties without implying an obligation that the lessor shall neither disturb the possession himself nor authorise its disturbance by others….

I do not know of any ground in reason or authority for applying different canons to the construction of contracts between the Crown and a subject and contracts between subject and subject …. I am of the opinion that a contractual obligation is to be implied in the case of a demise by the Crown under the Australian Crown Lands Act, to the effect that the Crown will not disturb or authorise the disturbance of the lessee in his occupation.”

216               Kirby P concluded (at 696) that there was “no inherent conflict” between the reasoning in O’Keefe and Davies, noting that in O’Keefe, Griffith CJ had said (at 190) that the “mutual rights and obligations of the Crown and the subject depend, of course, upon the terms of the Statute”. Kirby P said (at 696 – 697):

“The clear principle of all these decisions of the High Court is that the first duty of the Court is to examine the statute to see whether, consistently with its terms, other rights and obligations that would apply by the general law attach to the statutory entitlements and duties of the parties. In the case of an interest called a ‘lease’, long known to the law, the mere fact that it also exists under a statute will not confine its incidents exclusively to those contained in the statute. On the face of things, the general law, so far as it is not inconsistent with the statute, will continue to operate. Thus, the answer to whether relief against forfeiture of a statutory lease under the Act is available to a party having an interest in that lease depends not upon any broad exclusion of the general law (including of forfeiture) but upon a detailed consideration of whether that law is compatible with the provisions of the Act, specifically those providing for forfeiture.” (Emphasis added)

217               Kirby P next analysed the provisions of the WLA with respect to forfeiture against the background of first, “the presumption of our legal system that Acts of Parliament are intended to operate justly” (at 698); and secondly, the “[equitable] jurisdiction [which] included a power, in special and extraordinary circumstances, to provide relief to a person with an interest in a leasehold, from forfeiture of that interest” (at 702). Observing (at 702) that none of the State legislation, including the WLA, had expressly revoked that jurisdiction, his Honour went on to conclude (at 702 – 703) that the power to provide relief had not been ousted by implication, because he could “see no mischief in the simultaneous existence of a statutory and equitable procedure for relief against forfeiture of the interests in leases under the Act”. Kirby P said (at 702- 703):

“Whilst the ‘leasehold’ envisaged by the Act has particular incidents, it remained a ‘leasehold’. No express provision excluding the jurisdiction of the Supreme Court in its Equity Division or repealing or limiting its power to provide relief is stated in the Act. Such restrictions must therefore be left to the work of implication. But why cannot this ancient and beneficial remedy co-exist with the Minister’s powers?”

218               Meagher JA (at 716) agreed with this conclusion.

219               Mahoney JA arrived at the same conclusion. He first noted that the nature of a lease under the WLA had not previously been considered by the superior courts - it appeared that the only two cases in which relevantly analogous questions had been considered were O’Keefe v Williams and Davies v Littlejohn and that McPherson was only the second case in which the Minister has exercised the power of forfeiture of a lease under the WLA (at 704).

220               Mahoney JA said (at 707):

“In my opinion, the rights described as ‘lease’ in the 1884 [Crown Lands] Act were essentially the rights given to a lessee under a lease of land as understood under the common law. Those rights were altered or added to by the terms of the 1884 Act. Restrictions were placed upon the lessee’s right to remove material from the leased land or to sublet it: s 98(1) of the 1884 Act; and authorised persons could take timber or material for building or other purposes or search for minerals within the leased land: s 98(3) of the 1884 Act. However, in my opinion, those statutory additions to or qualifications of the rights arising from a lease under the common law did not alter the essential nature of the lease granted. The lease remained, in my opinion, a common law lease. The significance of this is, of course, that the incidents of a common law lease, including the equitable jurisdiction to relieve against forfeiture of it, would prima facie be applicable to it.

The nature of rights granted under the 1884 Act was considered by the High Court in O’Keefe v Williams. The rights there directly in issue were the rights granted by an occupation licence. However, the court held that ‘the substantial relation between the Crown and the holder of an occupation licence is that of landlord and tenant’ (at 191) per Griffith CJ.” (Emphasis added)

221               After observing (at 712) that “the principles adopted in Davies v Littlejohn are [not] inconsistent with those adopted in O’Keefe v Williams”, Mahoney JA said (at 712):

“There are, I think, two alternative views of what is done when a ‘lease’ is granted under the Western Lands legislation. First, the authority granted by the legislation may be read as: The relevant authority may grant a common law lease of land in the Western Division, but such lease shall contain the covenants and conditions and have the other incidents provided for in the legislation. Or, secondly, it may be read as: The relevant authority may grant statutory rights, described for convenience as ‘lease’ but being statutory rights, having the covenants conditions and other incidents provided for in the legislation.” (Emphasis added)

222               His Honour continued (at 713):

“As at present, I incline to the first view. If that be correct, then the lease, being a common law lease, will prima facie have the incidents of such a lease. One of those incidents is that equity may relieve against forfeiture of it. Such an incident may be excluded by the terms of the legislation: to that I shall come. It may be excluded if the fact that the lease is by the Crown is inconsistent with equitable intervention of that kind. There are some equitable doctrines which do not operate against the Crown. But it has now been argued that this is such: had such been argued, it may be that evidence would have been relevant to bear on that matter or, for example, the creation of estoppels or the like. Accordingly, I would therefore decide this case on the basis that the lease is a common law lease and is subject to such equitable intervention in the normal course.

But if the second view be correct, the result is, I think, the same. If they be statutory rights, the nature of them is that described by the court in O’Keefe v Williams. They are rights subject to the implications and, I think, the equitable doctrines applicable to common law transactions of an analogous character. Thus, I think, equitable doctrines relating to release or waiver would be applicable in respect of these rights: see generally Halsbury’s Laws of England, 4^th ed, vol 16, pars 1470 et seq at 991 et seq. Whether or not laches be available against the Crown, acquiescence as an equitable defence would, I think, be available in the present case: see Halsbury (par 1475); Attorney-General to His Royal Highness the Prince of Wales v Collom [1916] 2 KB 193 at 204 per Atkin J. On either view, therefore, the right to relief against forfeiture would be available.” (Emphasis added)

223               The reasoning in McPherson was referred to with approval in Wik.

224               McPherson in the Court of Appeal (at 697 – 703; and at 713 – 715, together with the decision of Kearney J to similar effect at first instance at (1990) 22 NSWLR 671 at 682 – 683) was cited by Gummow J, a member of the majority in Wik (at 198), as authority for the proposition that –

“In the circumstances of the particular case and depending upon the particular incidents attached by statute to the interest in question, there may be an equity to relief against forfeiture of that interest.”

225               Kirby J in Wik (at 245) referred to McPherson as authority for the proposition that a lessee under the Queensland Crown Lands legislation “would be entitled to seek relief in equity in certain circumstances as under a private lease”.

226               McPherson was also approved by Brennan CJ, with whom Dawson and McHugh JJ agreed, as members of the minority in Wik. Brennan CJ said (at 79 – 80) that the Court of Appeal “was right to view [Davies and O’Keefe]as cases dealing with distinct subjects” and referred with specific approval to the passages in the judgments of Mahoney JA (at 712) and of Kirby P (at 696) in McPherson quoted above.

227               McPherson is significant here for two reasons. First, it is the only authority of an Australian appellate court deciding the nature of a lease under the WLA. Secondly, as a matter of comity, this Court should follow an interpretation placed on such legislation by such a court “unless convinced that that interpretation is plainly wrong” (see Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492). This is particularly so when the decision is one of a Court of Appeal of a State considering the State’s property legislation, and which has the approval of the High Court.

228               As I understand the arguments before us, it was not suggested, nor in my view, could it be suggested, that McPherson was wrongly decided. But for obvious reasons, the arguments focussed upon the later important decision of the High Court in Wik which is central to the present issues and to which I now turn.

REASONING AND DECISION IN WIK

229               At first instance in Wik, Drummond J had determined, as a preliminary issue, the effect of the grant of several Queensland pastoral leases (referred to as the Holroyd Leases and the Mitchellton Leases respectively) upon any native title which might be found to exist. His Honour’s decision on this issue was expressed in the answers to two questions. In the course of those answers, his Honour held that each of the leases conferred on the lessee “rights to exclusive possession” of the land, and that thereby the grant of each lease “necessarily extinguish[ed] all incidents of Aboriginal title ... in respect of the land demised under the pastoral lease” (see The Wik Peoples v The State of Queensland (1996) 63 FCR 450; and see per Toohey J in Wik in the High Court at 103).

230               An appeal to the Full Federal Court from the judgment of Drummond J was removed into the High Court. By a majority (Toohey, Gaudron, Gummow and Kirby JJ; Brennan CJ, Dawson and McHugh JJ dissenting) the appeal was allowed.

231               In respect of the Holroyd leases, it was ordered by majority, that relevant questions be answered as follows (at 261 – 262):

Question 1(B)

“If at any material time Aboriginal title … existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding …

(b) does the pastoral lease confer rights to exclusive possession on the grantee?”

…

Answer

(b) “No.”

…

Question 1B(d)

“(d) did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title … of the Wik Peoples in respect of the land demised under the pastoral lease?”

Answer

(d) “Strictly does not arise but is properly answered No.”

232               By a majority, similar answers were ordered to be given (at 262 –263) in respect of the Mitchellton leases.

233               Each member of the majority published full reasons. Given the obvious significance of Wik for our purposes, and the immense complexity of the issues that have arisen in this area, it will be necessary to refer to their individual reasons at some length. As Toohey J said of the questions asked in Wik, they “reduce to straightforward propositions what are in truth complex issues of law and fact” (at 131).

Some background to the leases

234               To place the Wik leases in their context, some of their background should first be noticed.

235               One of the Holroyd leases, granted in 1945 and entitled “Lease of Pastoral Holding under … The Lands Acts 1910 to 1943”, was expressed to be for “pastoral purposes only”, had a term of thirty years and an area of 1,119 square miles. The lease contained reservations of minerals and petroleum, and rights of access for the purpose of searching for and obtaining them, together with reservation of the right of any authorised person “at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same” (per Toohey J at 104 – 105). In 1972 the lessees applied for a new lease. Included in their description of the land were statements that this was purely breeding country, with approximately one beast to sixty acres; no improvements; no accommodation. A new lease issued in 1975 entitled “Lease of Pastoral Holding under … the Land Act 1962 – 1974”, for a term of thirty years. Although not expressed to be for pastoral purposes only, it was expressed to be subject to statutory and other reservations similar to those contained in the earlier lease. It was granted upon condition that, within five years, the lessees carry out a number of improvements by way of buildings, an airstrip, internal fencing, dams, a set of main yards and dip; sow 100 acres at least as a seed production area; and “enclose the holding with a good and substantial fence"” The lessees were further required “during the whole term of the lease [to] maintain all improvements” (per Toohey J at 105 – 106).

236               There were several Mitchellton leases. The first, in 1915, entitled “Lease of Pastoral Holding under … the Land Act of 1910”, had a term of thirty years, an area of 535 square miles, was “for pastoral purposes only”, and had reservations similar to the Holroyd lease. But the lessees never took possession and failed to pay rent and the lease was forfeited. In 1919, a further lease was granted under the Land Act 1910 for thirty years, for “pastoral purposes only”. It was subject to reservations under the Mining on Private Land Act 1909 (Qld) and reserved a right of entry by authorised persons (per Toohey J at 106 – 108).

237               As mentioned, each of the Justices constituting the majority published his or her own reasons. The reasoning is complex and necessarily lengthy – the authorised report extends to 264 pages. The Court was divided 4 – 3; and even in the majority judgments there are some differences of approach, and of emphasis. Yet, it could not seriously be disputed that the present litigation raises issues which are similar to, and analogous with, those in Wik. It may be argued, with some force, that Wik is a square and binding authority for our purposes. On any view, an analysis of the essential steps in the process of reasoning in each of the majority judgments in Wik is a necessary prerequisite to an understanding of the novel issues that arose in that historical and legislative context; and that understanding is, in turn, essential for the determination of the present questions.

The reasoning of Toohey J

238               His Honour’s reasoning was to the following effect:

·                    The first step is to consider whether the leases did “in truth” confer possession of the land on the grantees to the exclusion of all others, including the holders of native title rights. This is not answered “by reference only to general concepts of what is involved in a grant of leasehold”. The language of the statute authorising the grant and the terms of the grant “are all-important” (at 108).

·                    The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This has two elements: (1) inconsistency – whether and to what extent native title rights are inconsistent with the exclusive possession which the lease was said to carry; (2) whether native title rights are thereby (a) “truly extinguished” or (b) “simply unenforceable” while exclusive possession vests in the lessee (at 108).

·                    The history of the legislation dealing with pastoral leases in New South Wales and Queensland, is essentially the story of the relationship between the Crown and those who wished to take up land for pastoral purposes. It reflects the desire of pastoralist for some form of security of title, and the clear intention of the Crown that the pastoralists should not acquire the freehold of large areas of land, the future use of which could not be readily foreseen (at 111).

·                    What is important for present purposes is to focus on legislation rather than feudal doctrine in order to identify the incidents of tenure. This reinforces the need to look at the relevant statutory provisions, rather than simply apply feudal notions of tenure without considering their place in the statutory scheme (at 112).

·                    The provisions of the Land Act 1910 are noticed, including its reference to a “demise for a term of years” (s 6(1)) and to a “lease” (ss 4, 42); together with s 135, whereby land reverted to the Crown upon forfeiture of a lease or licence; and s 203, providing (inter alia) that any person, not lawfully claiming under a subsisting lease or licence or otherwise under any Act relating to the occupation of Crown land, found occupying any Crown land or reserve, shall be liable to a penalty (at 112 – 114).

·                    “Pastoral purposes” is not defined in the Act nor are the grants of lease specific as to what the expression entails. Clearly it includes the raising of livestock. It also includes incidental things such as establishing fences, yards, bores, mills and accommodation for those engaged in relevant activities. But the use to which the land may be put is circumscribed by the expression “pastoral purposes only”; and the rights of the lessee are to be determined accordingly (at 114).

·                    In the provisions of the Land Act 1962, the references to “lease” (s 4(2)), to “demise” (s 6(1)) and to “pastoral lease” (ss 49(1), 53(1)) are noticed, along with the circumstance that ss 135 and 203 of the 1910 Act had counterparts (ss 299(1), 372) in the 1962 Act (at 115). These Acts “say little as to the rights conferred by a pastoral lease” (at 115).

·                    The language of the lease instruments that the Crown “[did] [t]hereby … demise and lease” the lands is noticed (at 115). Yet, with reference to Queensland’s argument that the instruments, being pastoral leases, conferred on the lessees rights of exclusive possession, his Honour said (at 115 – 116):

“To pose the issue in that way is to focus unduly on leasehold interests as known to the common law and to give insufficient recognition to the fact that the pastoral lease is a creature of statute. Accordingly, the rights it confers and the obligations it imposes must be determined by reference to the applicable statutory provisions. That is not to say that reference to leasehold interests at common law does not aid an understanding of these rights and obligations. But it must not be allowed to obscure the particular nature of a pastoral lease under the relevant legislation. And it must not divert attention from the basic question whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished.”

·                    His Honour accepts that the authorities certainly point to exclusive possession as a normal incident of a lease. They do not exclude, however, an inquiry whether exclusive possession is, in truth, an incident of every arrangement which bears the title of lease. Furthermore, those authorities, which are directed to commercial transactions between individual persons or corporations, are not concerned whether something that is underpinned by common law recognition, namely, native title rights, is excluded by the grant by the Crown of what is described as a pastoral lease over land to which those rights attach (at 118).

·                    The authorities which apply the rule that courts will construe a statute in accordance with common law principles governing the creation and disposition of rights of property, may be distinguished on the ground that they arise in the different context of a commercial transaction (at 118 – 119).

·                    It is not surprising that the terminology of pastoral leases is employed by the legislature; and it is important to bear in mind the historical developments. The provisions in the Regulations under the Crown Lands Unauthorised Occupation Act 1839 – 1841 (NSW) for the cancellation of a licence if the licensee was convicted “of any malicious injury committed upon or against any aboriginal native or other persons” should be regarded as “indicat[ing] a contemplation that Aborigines would be upon licensed lands”. Moreover, “the thrust of contemporary documents … make it clear that Aborigines were not to be excluded from land under pastoral occupation” (at 119).

·                    Reference is made, in particular, to communications by Earl Grey, as Secretary of State, to the Governor of New South Wales in 1848 (repeated in 1849) concerning pastoral leases, his intention being to “give the grantees only an exclusive right of pasturage … and of cultivating … as they may require within the large limits thus assigned to them, but … not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed …” (at 119).

·                    “Against this background, it is unlikely that the intention of the legislature in authorising the grant of pastoral leases was to confer possession on the lessees to the exclusion of Aboriginal people even for their traditional rights of hunting and gathering. Nevertheless, ‘intention’ in this context is not a reference to the state of mind of the Crown or of the Crown’s officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the ‘intention’ to be discerned from it” (at 120).

·                    Macdonald v Tully [1870] 2 QSCR 99 (at 106), a decision of the Full Court of the Supreme Court of Queensland that a pastoral lessee’s “right … to occupy”, while awaiting the issue of a formal lease, “was … capable of being maintained against any disturber …”, is distinguished on the ground that the Full Court was clearly directing its attention to the position of third parties in the conventional sense, not to Aborigines whose traditional land might fall within the lease (at 120).

·                    The same may be said of the statement by the Full Court in Wildash v Brosnan [1870] 1 QCLLR 17 (at 18) that a pastoral lessee had an “exclusive right to the land” (at 120).

·                    Observations of Brennan J in Mabo v Queensland (No. 2) (1992) 175 CLR 1 (at 66) that s 203 of the 1910 Act, and its counterpart, s 372 of the 1962 Act, were “not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title” are followed (at 121).

·                    A pastoral lease under the relevant legislation grants to the lessee the possession of the land for pastoral purposes; and the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes (at 122).

·                    “Each lease contains a number of reservations of rights of entry, both specific and general. The lessee’s right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which confers on the grantee any rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involve going on to or remaining on the land, it cannot be said that the lease confers on the grantee any rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo (No. 2). It is simply that there is nothing in the statute or grant, that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time” (at 122).

·                    Although it did not strictly then arise, his Honour went on to consider the issue of extinguishment. In that context, inconsistency can only be determined by identifying what native rights are asserted and then measuring them against the rights conferred on the grantees of the leases; to the extent of the inconsistency, the latter prevail (at 126). (As will be seen, his Honour returned to this subject in a postscript.)

·                    “It is too simplistic to regard the grant by the Crown of a limited interest in land as necessarily extinguishing native title rights. It is a large step indeed to conclude that, because there has been a grant of a ‘lease’ of many square miles for pastoral purposes, all the rights and interests of indigenous people were intended thereby to be brought to an end” (at 130).

Toohey J’s postscript

239               Accordingly Toohey J proposed to answer the relevant questions in the negative. However, importantly in my view, his Honour, with the concurrence of Gaudron, Gummow and Kirby JJ, added a postscript so “that the significance of the answers proposed should be properly understood” (at 132).

240               The postscript, which in my view, is of critical significance in the present case, was to this effect: (1) To say that the leases did not confer rights to exclusive possession “is no way destructive of the title of those grantees”. Rather, it is “to recognise that [their] rights and obligations … depend upon the terms of the grant … upon the statute which authorised it”. (2) Whether there was extinguishment “can only be determined by reference to such particular rights and interests as may be asserted and established”. (3) If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, native title rights and interests “must yield, to that extent, to the rights of the grantees” (at 132 – 133).

The reasoning of Gaudron J

241               Her Honour’s reasons were to this effect:

¨                  The early history of colonial land law in New South Wales and Queensland is surveyed, and Earl Grey’s 1849 despatch, in particular, is noticed (at 141).

¨                  The “pastoral leases are not the creation of the common law; that they are now and have for very many years been entirely anchored in statute law appears from the cases which have considered the legal character of holdings under legislation of the Australian States and, earlier, the Australian colonies, authorising the alienation of Crown Lands” (at 149).

¨                  “Whatever may have been said in the decided cases as to holdings under other legislation, it is clear that the Mitchellton pastoral leases derive entirely from the 1910 Act and that they conferred, and only conferred, the estate or interest which that Act authorised. As there has been no case which decides what that estate or interest was, and as the Act, itself, contained no express provision in that regard, the estate or interest must be ascertained by application of those principles of statutory construction which have been devised to determine what it was that the legislature intended but failed to say in plain words” (at 150).

¨                  There were difficulties in applying traditional common law principles respecting property rights to the pastoral leases; and that “the word ‘lease’ and the expression ‘demise for a term of years’ cannot, of themselves, provide a basis for holding that a pastoral lease under the 1910 Act conferred a leasehold estate, as understood by the common law and, thus, conferred a right of exclusive possession. Rather, the search must be for indications within the Act that it was intended that pastoral leases should confer that right” (at 151 – 152).

¨                  One of those difficulties was that a “lease in perpetuity” is “an expression which is unknown to the common law and which cannot possibly take its meaning from it” (at 153).

¨                  “The strongest indication that a pastoral lease granted under the 1910 Act did not confer a right of exclusive possession is to be found in those provisions of the Act conferring rights on persons authorised … to enter upon the land the subject of a pastoral lease to remove timber, stone, gravel, clay, guano or other material (s 199), denying the lessee the right to ringbark, cut or destroy trees (s 198) and also denying the lessee power to restrict authorised persons from cutting or removing timber or material within the holding (s 200)” (at 154).

¨                  In this connection, reference should also be made to the provision permitting others to depasture stock if a stock route or road passed through the holding; and to the reservation of the right of a person authorised to go upon the land for any purpose, or to make a survey, inspection or examination (at 154).

¨                  “Moreover, the vastness of the areas which might be made the subject of pastoral leases and the fact that, inevitably, some of them would be remote from settled areas militate against any intention that they should confer a right of exclusive possession entitling pastoralists to drive native title holders from their traditional lands. Particularly is that so in a context where, in conformity with the prescribed form, the grants were expressed to be made ‘for pastoral purposes only’” (154).

¨                  The rule of construction that clear and unambiguous words are required before imputing an intention to extinguish valuable rights without compensation is mentioned. But “[w]hether the rule be stated generally or by reference to native title rights, it dictates the conclusion that, whilst the grant of a pastoral lease under the 1910 Act certainly conferred the right to occupy land for pastoral purposes and s 204 conferred the right to bring action for the removal of persons in unlawful occupation, a pastoral lease did not operate to extinguish or expropriate native title rights, as would have been the case, had it conferred a right of exclusive possession” (at 155).

¨                  As to the Holroyd lease granted under the 1962 Act, the statute and the terms of the lease differed from the 1910 Act and the Mitchellton lease in some respects. But they did not change “the essential nature” of pastoral leases. They “[fell] short” of a “clear indication” that a right of exclusive possession was conferred (at 166).

The reasoning of Gummow J

242               His Honour reasoned thus:

v                 The origins of the “new forms of tenure” created last century in the Australian colonies upon the disposal of waste Crown lands are explained (at 171 – 175).

v                 The dispute in Wik was whether the grants of the leases, pursuant to the 1910 and 1962 Acts, were inconsistent with the continued existence of any native title rights which subsisted when the grants were made. In determining this issue, “the better guide [is] the ‘time-honoured methodology of the common law’ whereby principle is developed from the issues in one case to those which arise in the next”, rather than the historical method of “extrapolation to an assumed generality of Australian conditions and history …” (at 184).

v                 The Court was called upon to construe statutes enacted at times “when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been” (in Mabo (No. 2)) (at 184).

v                 The concept of abrogation (i.e. extinguishment) may be seen in, e.g. Yarmouth Corporation v Simmons (1878) 10 Ch D 518 where, in rejecting a submission that a public right of way could only have been abrogated by express words in the legislation, Fry J said (at 527) that –

“when the Legislature clearly and distinctly authorise the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right.”

v                 This requires “a comparison between the legal nature and incidents of the existing right and of the statutory right” (at 185).

v                 The general provisions of ss 203 and 204 of the 1910 Act (ss 372(1) and 373(1) of the 1962 Act) do not necessarily involve the extinguishment of native title (at 190 – 195).

v                 Macdonald v Tully illustrates that an end sought to be achieved by legislation such as ss 203 and 204 was the imposition of legal order upon the confusion which developed with the expansion of European settlement; in particular, s 204 confers some security of tenure against third parties, including settlers with competing claims (at 192 – 193).

v                 The term “lease” may be used in a statute “in a limited sense only”; and the phrase “statutory tenant” may be used “to identify … rights and obligations which subsist only by virtue of the legislation and are unknown at common law” (at 195 – 196). The subject legislation was “comparable” to that identified by Isaacs J in Davies v Littlejohn (above) at 186 – 187, that is (as Isaacs J said) –

“It creates [the tenures], shapes them, states their characteristics, fixes the mutual obligation of the Crown and the [grantee], and provides for the mode in which they shall cease to exist.” (at 196)

v                 The reasoning in O’Keefe v Williams and McPherson is noticed. It is “unhelpful” to ask whether the statute is a “code” and, if not, to conclude that a pastoral lease has the same incidents as a common law lease. Rather, like native title itself, the interests created by these statutes “take their place in the general legal order … .” However, in so doing, “the legal system takes those interests as they are found in the statute” (at 197 – 198).

v                 An analysis of the provisions of the 1910 Act supports four propositions in respect of the Mitchellton leases: (1) there is apparent the mixing together or combination in the statutory regime for pastoral leases and occupation licences of elements which in an analysis under the common law of leases and licences would be distinct; (2) the terms of the 1910 Act providing for pastoral leases were apt to identify the characteristics and incidents of that statutory interest; (3) those characteristics were not such as to approximate what under a lease as understood at general law may have been a right to exclude as trespassers persons exercising rights attached to their subsisting native title; and (4) the contrary conclusion, that native title holders were rendered trespassers as a consequence of rights given by pastoral leases, would be at odds with the interpretation of the phrase “unlawful occupation” which is to be given its use in s 204 of the 1910 Act (at 201).

v                 In relation to the first proposition, a lease in perpetuity is the creation of a statutory title which is sui generis (at 201 (footnote 750)).

v                 With respect to the Holroyd leases and the 1962 Act, despite some differences between the two statutory regimes, and subject to one qualification, the same conclusions apply to the Holroyd leases as those reached with respect to the Mitchellton leases. In none of these instances was there clear, plain and distinct authorisation, by the relevant grant, of acts necessarily inconsistent with all species of native title which might have existed. It does not appear that the statutory interests could be enjoyed only with the full abrogation of any such native title (at 202 – 203).

v                 The qualification is that the later, but not the earlier grants were subject to conditions requiring improvements to the land. It may be that the enjoyment of some, or all, native title rights with respect to particular portions of the 2,830 square kilometres of the Holroyd leases, would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title (at 203).

The reasoning of Kirby J

243               His Honour’s process of reasoning was as follows:

q                   For the purposes of comparison, the Court had been taken to colonial practice and legislation as well as the modern statutes affecting pastoral leases in the States of Australia and in the Northern Territory; and all of the States (except New South Wales and Tasmania) and the Northern Territory had intervened (at 209). However -

“[t]his judgment is concerned only with the legal interests of the lessees under the Queensland legislation examined in this case. It is the peculiarity of the legal rights conferred by such statutory leases, in the factual setting in which they were intended to operate, which permits the possibility of coexistence of the rights under the pastoral lease and native title.” (at 250)

q                   The history of the emergence of pastoral leases in New South Wales and Queensland is analysed, including Earl Grey’s 1848 despatch (at 226 – 229).

q                   The picture painted of the two pastoral leasehold properties in question is “somewhat bleak”. Each, in remote parts of Northern Queensland, offered to the lessee “rudimentary and apparently unpromising” conditions for depasturing cattle and conducting associated activities. So unpromising was the first Mitchellton lease that it endured for only three years and was forfeited for non-payment of rent. The second lease lasted for an even shorter period before it was surrendered. On 14 January 1922, by Order in Council of two days earlier, the Mitchellton Holding was reserved for the use of Aboriginal inhabitants of Queensland. Neither of the Mitchellton lessees entered into possession. The Thayorre assert that they never left their ancestral lands. Members of the Thayorre continued living on the land in their traditional way. They would have had no reason (there having been no entry by the lessee) even to be aware of the grant of any pastoral lease over the land. Soon after the surrender of the lease in October 1921, a reserve was created for them. Given that it is now established that their native title survived the annexation of all Australian land to the Crown, “it would require a very strong legal doctrine to deprive them of their native title. Especially because, so far as they were concerned, nothing of relevance had occurred to their land, save for (as it was put in argument) ‘the signing of documents by people in Brisbane’” (at 232).

q                   The position at Holroyd River “was not so extreme a case”, yet “it seems a reasonable inference that traditional Aboriginal life would have been little disturbed” by the grant of the lease in “such a large remote terrain” (at 232).

q                   “The understanding of these facts helps to provide the context against which the application of legal theory must be tested in this case. It also helps to illustrate, and describe, the nature of the pastoral leases which the successive enactments on pastoral leases were designed to permit. They are a far cry from the situation in settled and occupied areas of Australia where the extinguishment of native title has a practical and necessary quality sustaining a legal determination of extinguishment by reference to the legal characteristics of common law or residential leases. In pastoral leases of the kind described in the evidence in this case, talk of ‘exclusive possession’ or ‘exclusive occupation’ has an unreal quality. It may be what the law imputes to the lease at common law. But it would require very clear law to drive me to such an apparently unrealistic conclusion. The common law tends to abhor unreality, even when it is presented as legal doctrine” (at 233).

q                   “Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute. Neither of the Acts in question here expressly extinguish native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for ‘grazing purposes only’, as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished” (at 242 – 243).

q                   “Why, in such circumstances, it should be imputed to the Queensland Parliament in 1910 and 1962 that it had imported all of the incidents of the English common law of leases is not immediately plain. Pastoral leases covered huge areas as extensive as many a county in England and bigger than some nations. In these circumstances, it seems ‘distinctly unlikely’ that there can be attributed to the Queensland Parliament an implied purpose of granting a legal right of exclusive possession to the pastoralist (including as against Aboriginals known to exist on the land and unmolested in their continuing use of it) where that Parliament held back from expressly so providing” (at 244).

q                   The use of the words “lease”, “demise”, “rent” and “assigns” is insufficient to import all of the features of a common law lease. In O'Keefe v Malone the Privy Council, in a case involving a statutory licence, emphasised that the correct approach for a court to take was to examine the rights actually conferred on the grantee by the instrument rather than implying from the mere use of the word “licence” or “lease” all of the incidents common to those expressions in a private contract (at 245).

q                   “This is not to say that some features of an ordinary ‘lease’ may not be imported into the terms where used in a statute. For example, the lessee would be entitled (exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment” (at 245).

q                   Moreover (as has been noted, citing McPherson) “[t]he lessee would be entitled to seek relief in equity in certain circumstances as under a private lease. The lessee would have the statutory right to invoke the assistance of the Crown to expel trespassers who had no right or title to be upon the land” (at 245).

q                   “However, these conclusions fall a long way short of requiring that the title conferred by a pastoral lease upon the lessee to use the land ‘for pastoral purposes only’ be extended to exclude Aboriginals using the land in the traditional way” (at 245).

IDENTIFICATION OF THE RATIO OF THE MAJORITY JUDGMENTS IN WIK

244               In litigation of this complexity, the identification of a majority ratio is necessarily difficult. But, in my view, the following ratio may be found in the majority judgments:

·                    Neither lease conferred a right to exclusive possession (viz. the answer given by the majority to question 1B(b)).

·                    There was no provision, express or implied, in any of the Queensland legislation, nor in the leases themselves, evidencing a clear and distinct intention necessarily to extinguish all incidents of any native title that may be held to exist (viz. the answer given by the majority to question 1B(d)). (Emphasis added)

·                    The conclusion that the leases did not confer rights to exclusive possession was in no way destructive of their title which depended upon the terms of their leases and the statutes (postscript at 132).

·                    Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be held to exist (postscript at 133).

·                    If inconsistency is held to exist between the native title rights and the lessees’ rights the native title rights must “yield”, to that extent, to the lessees’ rights (i.e. be extinguished to that extent) (postscript at 133).

IDENTIFICATION OF MATTERS NOT PART OF THE MAJORITY RATIO IN WIK

245               It will be seen then that, in some respects, the process of reasoning in the majority judgments appears to proceed beyond matters which constitute the strict ratio. Two aspects in particular should be identified: first, the use to be made of early colonial history; and secondly, the legal significance of the vast size and remote location of the Holroyd and Mitchellton holdings.

(a) The use of early colonial history

246               It is true that each of Toohey, Gaudron and Kirby JJ referred at some length to the early colonial history. In particular, as we have seen, each apparently placed considerable emphasis upon the views expressed by Earl Grey in his despatches in the late 1840s. But the postscript to Toohey J’s judgment makes no reference to this early history as a decisive consideration. On the contrary, as noted above, the postscript states (at 132) that the lessees’ rights and obligations “depend upon the terms of the … lease and upon the statute which authorised it”. This is quite consistent with the earlier observations of Toohey J in this connection (at 120, cited above). It will be recalled that there, after describing the early colonial history and quoting Earl Grey’s despatches, his Honour made it clear that it is the operation of the statute, to be discerned from its provisions, rather than the bureaucrat’s “state of mind”, that is material for present purposes.

247               Moreover, Gummow J, in the passage (at 184) quoted above, referred to the “possibility of injustice to the many, varied and complex interests involved across Australia as a whole” if an attempt were to be made to “extrapolat[e] to an assumed generality of Australian conditions and history from the particular circumstances of [Wik]”.

248               I respectfully agree. As contemporary lawyers addressing a current legal problem, we should bear in mind, as Sir Victor Windeyer has reminded us, that:

“… the common law … is a body of dynamic doctrine … [and its] study … is a study of a process of evolution… . It combines stability and continuity with an inherent capacity to change and be changed – gradually by courts, rapidly by any sovereign legislature for its own domain.”

and:

“A present-day lawyer, whether counsel or a judge, who has a present question to resolve is concerned to go back into the past only to come forward to the present – to understand the law of the present by seeing it as a continuation of, or departure from, that which formerly prevailed”.

249               (Sir Victor Windeyer, History in Law and Law in History, (1973) (11)(1) Alberta Law Review 123 at 125; 126; and see also W M C Gummow, Change and Continuity; Statute, Equity and Federalism (Clarendon Law Lectures, Oxford University Press, 1999) at xvii.)

250               On behalf of Mr Wilson, a valiant attempt was made in argument in the present case to invite this Court to revisit, and review, some of the history described by Toohey, Gaudron and Kirby JJ in Wik. This aspect is more fully dealt with in the Appendix to these reasons. For immediate purposes, it suffices to say that this historical “issue” is beset with its own immense complexities. If, contrary to my understanding, historical considerations had, in truth, formed part of the ratio of those members of the majority in Wik, it would have been necessary for us to address these multi-disciplinary questions. But, we have not had the benefit of expert evidence or full arguments from both sides on these questions. In the circumstances, in my view, it is not appropriate that we pursue them further.

251               This is not, however, to say that in the interpretation of this legislative scheme, regard cannot be had, as part of the immediate “context”, to the material in the 1901 Parliamentary Report and the Second Reading speeches, in interpreting the WLA including its 1934 amendments. On any view, they are a legitimate resource in the process of statutory interpretation (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 99 and 112 – 113). I mention this material below. But the point is that, once it is accepted, as I think, that the interpretation to be placed upon the early colonial history did not form an essential part of the majority reasoning in Wik, we need not embark upon the complex undertaking of endeavouring to relate that early historical material to twentieth century legislation in the form of the WLA.

(b) The significance of the vast size and remote location of the lands leased in Wik

252               Again, it is true that Toohey, Gaudron and Kirby JJ referred to these factors. Kirby J (at 233 in the passage quoted above) described them as “context” of such significance that, if a conclusion of “exclusive possession” were to be drawn, “… it would require very clear law to drive me to such an apparently unrealistic conclusion”. Despite this, upon analysis, it does not seem that degrees of size, or of remoteness, were part of the ratio. Being dependent upon matters of degree, rather than of kind, it is not to be expected that such matters could translate easily into a known legal principle. More importantly, these aspects were not incorporated into the postscript, which, as Toohey J explained, was intended to illuminate the process of reasoning of the majority in answering the questions.

253               The difficulties in attempting to incorporate factors such as these into legal doctrine are well illustrated in the present case. By suburban standards, an area of 10,000 acres is immense. But judged by the standards of the zone in question, as recognised by the statute itself, it is no more than the minimum area required to make a living for a single family. The significance of this and the need to place the size of these areas in realistic perspective, are made clear by the material previously referred to, the 1901 Parliamentary report, and the Second Reading speeches in 1901 and 1934. This material was confirmed by the provisions of the statute and by the terms of the lease, limiting the purposes for which the land may be used, requiring bona fide residence on the lands leased, and contemplating a holding of the size of a home maintenance area. Moreover, the remoteness described in Wik is to be contrasted with the detailed requirements prescribed by the WLA, its regulations and the lease obliging the lessee to undertake upon the lands leased a whole range of activities.

254               These considerations reinforce the point that, for legal purposes, we should not attempt to assess, even if it were practicable, relativities of size and remoteness as decisive considerations in the present context.

CONCLUSIONS ON THE SEPARATE QUESTIONS

255               It will be convenient to consider first the issues concerning the right to possession, and then to turn to the extinguishment issues.

(a) Possession issues – the lessee’s rights

256               As I followed the arguments before us, it was not, and could not be, seriously in dispute that the lessee had a right to possession for grazing and for the incidental purposes of the kind described by Toohey J in Wik (at 114, see para 84). That is to say, the provisions of the legislative scheme, and of the lease itself, to the effect that the lessee is to use the lands for a particular purpose, must carry with them, by necessary implication, the intention of the Parliament and the Executive that the lessee have such possession of the area which is needed to achieve that purpose. Moreover, that a possessory or proprietary right was intended by the Parliament and the Executive to be granted is indicated by other express provisions of the legislative scheme and of the lease. The residence requirement, the fencing obligations, the requisite home maintenance area, the elaborate provisions dealing with the transfer or mortgage of a WLA lease and its devolution upon death, together with the detailed provisions with respect to improvements previously described, illustrate and confirm this. These provisions are more consistent with an intention to create a more permanent, possessory title than the merely personal, ephemeral relationship which is found in, for example, a bare licence.

257               The real issue here is whether that possession was “exclusive”. On any view, to use Toohey J’s words, the answer to this question must be accepted to be a complex question of law and fact.

258               The decision and the reasoning in McPherson stand for the proposition that, for the purposes of the availability of relief against forfeiture, the lessee should be treated as having exclusive possession: that is, in the sense that, in this context, a WLA lease in perpetuity is to be regarded as relevantly the same as, or equivalent to, a common law lease. But in the light of Wik, the reasoning in McPherson must, I think, now be read as directed only to its context, i.e. forfeiture. The ratio in McPherson did not encompass any claim of native title, which was not in issue there. In other words, we should not interpret McPherson as deciding that the right to possession under a WLA lease carried with it the right to exclude Aboriginals: that question was simply not there an issue. This is not to cast any doubt at all upon the decision in McPherson. There is nothing in the statutory scheme (relevantly described at paras 23 – 48 above), or in the High Court decision in Hawkins or in Wik, which detract from what McPherson actually decided. As I have said, I respectfully agree with what it decided, and with the reasons given by each member of the Court of Appeal for the decision.

259               But, at all events, a WLA lease could never be regarded as conferring a legal right to “exclusive” possession in any literal, absolute, unconditional or universal sense, even if the relative status of native title rights are put to one side for the moment; that is to say, the lessee’s right to possession was already expressly qualified or conditional in several respects, whatever the position would be vis-à-vis native title interests. One qualification has already been mentioned, namely the existence of the requisite purpose, viz. grazing. The lessee had no right to use the land for any activity not incidental to grazing. Other express conditions or qualifications clearly limit the lessee’s possessory title. As has been seen, Toohey J in Wik (at 122) observed that the lessee in Wik was granted, by the statute, possession for pastoral purposes, that is, such possession as was required for the occupation of the land for those purposes. But his Honour went on to note the reservation of rights of entry, to which the lessee’s right to possession must yield. Likewise, Kirby J in Wik at 245, in the passage cited above, observed that the lessee would be entitled (but with exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment. The same comments can be made of the explicit exceptions and reservations in the present case.

260               As has been seen, the Lease itself is expressed to be subject to the following additional qualifications upon the lessee’s right to possession:

·                    The reservation of minerals etc.

·                    The reservation of the State’s right to proclaim Roads, Travelling Stock, Camping or other Reserves and to withdraw land for these purposes without compensation.

·                    The reservation of the State’s power to resume land for mining, townships or public purposes.

·                    The lessee’s obligations (a) to permit authorised persons to enter and search for, remove etc. minerals etc. (condition 16); and (b) to permit the Minister for Conservation, or any person acting on his behalf, to enter for the purposes of survey or investigation in connection with soil conservation etc. (condition 22).

261               These qualifications upon the lessee’s right to possession are clearly within power, being specifically mentioned, as has been seen, in paras (k), (l), (m), (p) and (o) of Schedule A to the WLA.

262               In addition, as noted above, s 44(1) of the WLA confers upon the Governor the power to withdraw leased lands for settlement purposes.

263               As has also been noticed, further qualifications are imposed by the Regulations, i.e. the Commissioner’s power to cause inspections (reg 79); and the power of an authorised person to enter and to open and remove fences (reg 80).

264               Again, as I followed the arguments before us, the existence of these qualifications upon the lessee’s right to possession was not, and could not be, seriously in dispute. But in my opinion, no useful purpose could be served here by answering the separate questions by first referring to the existence of the lessee’s right to possession, and then attempting (especially at this early stage of the principal proceedings) an exhaustive catalogue of the numerous express exceptions and reservations, some mentioned above, and which could not be in serious contention. Rather, as has been said, the real question here, and the aspect that the Court should now address, is whether the lessee had the right to exclude those claiming native title rights. And, as Toohey J noted in Wik (at 131), the questions framed by reference to exclusive possession “tend to obscure what is the critical question, that of extinguishment” (i.e. the present question (c), which I will next address).

265               In these circumstances, before proceeding to questions (a) or (c), I would answer question (b) as follows:

“The Lease confers upon the lessee a right to the possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings.”

266               In these circumstances, I need not answer question (a).

(b) Extinguishment issues – native title holders rights

267               It follows that, as in Wik, this (question (c)) is the central question here.

268               In Commonwealth of Australia v Yarmirr (1999) 168 ALR 426 (at 436 – 439), and in State of Western Australia v Ward [2000] FCA 191 (at pars 55 – 120) von Doussa J and I referred to the High Court decisions which have explained authoritatively the general concept of extinguishment, including partial extinguishment.

269               In addressing question (c), it is pertinent to note that Toohey J’s postscript in Wik contemplates (1) an inquiry whether inconsistency exists between (a) the rights and interests conferred by native title and (b) the rights conferred by the statutory grants of the leases; and (2) if so, an identification of the extent of the inconsistency, because if inconsistency is held to exist, the native title rights and interests will “yield” (i.e. will be extinguished) to that extent. For our purposes, this statement of principle is, in my view, authoritative and squarely in point. Accordingly, it should, in my opinion, be applied here.

270               I propose to answer question (c) accordingly, and to add, for the reasons which now follow, that it is not appropriate to answer this question further in respect of extinguishment, or suspension, at this stage of the proceeding.

271               In answering the questions in Wik, Toohey J said (at 131):

“The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights.”

272               Gummow J also noted (at 169, 204) that it was significant that, in Wik, there had not then been a trial of the facts, so that the range and scope of the incidents of any native title rights that might be found to exist were not then known.

273               And more recently in Yanner v Eaton (1998) 166 ALR 258 Callinan J, expressing a similar sentiment, said (at 300):

“In this case there was evidence which was uncontradicted and uncontested, relevantly directed to the rights, traditions, customs and practices of the Aboriginal group of which the appellant was a member, and findings of them by the magistrate of sufficient particularity to enable, indeed to compel, the carrying out of the exercise which the majority in Wik was unable to carry out in order to decide whether the leases extinguished wholly or partially any of the native title rights claimed.”

274               In the present forensic circumstances, which are similar to those before the High Court in Wik, it is not now appropriate to pursue the operation, if any, of the doctrines of extinguishment or “suspension”, beyond making the general answer mentioned in response to the generally expressed question asked.

275               I would therefore answer question (c) thus:

“The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the lessee. It is not appropriate to answer this question further at this stage of the principal proceedings.”

COSTS

276               In all of these circumstances, it is appropriate that the costs of the separate question be the parties’ costs in the principal proceedings.

POSTSCRIPT

277               Since writing the above, I have had the advantage of reading the reasons of Black CJ and Sackville J.

278               I agree with their Honours that, given the operative date here (1953 or 1955) (i.e. before the introduction in 1975 of the Racial Discrimination Act 1975 (Cth) (“the RDA”)), the provisions of the NTA have no relevant operation here, essentially for the reasons given in Fejo and Yanner, and as explained by von Doussa J and myself in Ward at par 77; that is, if extinguishment occurred here, it had occurred at common law in 1953 or 1955, well before the RDA or the NTA. The argument before us ultimately appeared to proceed upon that footing, correctly so in my view. My reasons proceed accordingly.

279               Whilst, otherwise, some differences of emphasis do appear, each of our respective approaches follows, as we are bound to do, the majority opinions in Wik. We all also hold that the questions asked in Wik, and here, tend to conceal, rather than reveal, the true issues. For that reason, I have chosen to apply the particular reasoning of the Wik majority stated, with the concurrence of the other members of the majority in the postscript in the judgment of Toohey J.

________________________

APPENDIX

ASPECTS OF EARLY COLONIAL LAND LAW HISTORY CONSIDERED IN WIK

280               In their arguments in the High Court in Wik, counsel on both sides of the record referred to aspects of the history of the legislative treatment of Aboriginals by the State.

281               Counsel for the Wik Peoples referred (at 9) to “the reality” of continued occupation by traditional occupants, the knowledge of such occupation by the State and pastoralists and the history of pastoral leases. Counsel submitted that this also “accords with” the history of the legislative treatment of Aboriginals by the State, and argued that pastoralists never in fact had possession exclusive of traditional occupants.

282               Counsel cited a passage in the reasons of Lee J in North Ganalanja Aboriginal Corporation v State of Queensland (Re Waanyi) (1995) 61 FCR 1 at 23 – 24. There, Lee J, noting that a “vast” area of Crown land unsuitable for close settlement, or enclosure, is permitted by the Crown for pastoral purposes, said (at 23 – 24):

“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, MSA 1308.”

283               Stephen Roberts, in his work cited by Lee J, described (in Ch 15) the history of the relationship between the squatters and the NSW Government in the period 1828 – 1841. In Wik, Kirby J (at 226) cited Roberts at 179 as authority for the proposition that in the late 1820’s squatters took possession of land, unoccupied by other squatters, without right or title. Roberts referred (at 186) to the “famous” Order-in-Council of March 1847 as embodying a desire “to give encouragement to those engaged in pastoral pursuits”. Robert said (at 187) that the squatters thereby “received the … privileges for which they had fought; they had acquired rights in the land; the Order-in-Council was the anchor of their rights”. But, according to Roberts, this led to “a struggle between squatters and people, to the formation of the impasse which was shattered only when free selection was achieved in 1861” (at 187).

284               The Solicitor-General for Queensland (at 34 – 35) advanced a detailed historical argument disputing the contentions of the Wik Peoples in this connection. The Solicitor referred (at 35) to a report provided to Earl Grey in 1847, and subsequent events, as follows:

“In March 1847, an Imperial Order in Council, comprising regulations to the 1846 Act, authorised the Governor to grant pastoral leases and gave existing licensees a right to demand leases of their runs. In May 1847, Governor FitzRoy sent Secretary of State Earl Grey a report from an Assistant Protector of Aborigines recommending that suitable reserves be immediately formed for the benefit of the Aboriginals, because unless that were done, the granting of leases of Crown lands would deprive them of any right to hunt over their native land. Earl Grey replied that his view was that leases granted for the purpose of pastoral occupation gave only limited rights which did not deprive natives of rights to hunt etc. Recognising that his view might not be shared in New South Wales, he suggested that the limitation on the right of exclusive occupation granted by Crown leases be enforced by public declaration or declaratory Act. The local law officers advised that a pastoral lease did confer exclusive possession free of Aboriginal rights of access. That view was accepted by legal advisers to the Colonial Office.”

285               The Solicitor then (at 35) described some of the subsequent history as follows:

“An Imperial Order in Council of July 1849 made from a draft prepared by them was forwarded to the Governor with a despatch which shows that Earl Grey had by then accepted that, in the absence of express condition enabling Aboriginal access, a pastoral lease in New South Wales conferred exclusive possession against all others, including Aboriginals, of the land demised. He never sought to give a binding direction to the Governor to include Aboriginal access conditions in pastoral leases. The Order in Council only empowered the Governor in his discretion to include a condition in future pastoral leases. No binding requirement was ever sought to be imposed that an access condition be included. A clause permitting Aboriginal access was inserted in some early Queensland pastoral leases but it was never required by statute. It was a matter for the Governor’s discretion.”

286               In his historical survey of pastoral leases, Toohey J (at 108 – 111) traced the developments in this area from the use of the Royal Prerogative to grant lands at the establishment of the colonies to the subsequent need for statutory regulation, leading to the enactment of the Sale of Waste Lands Act 1842 (Imp) and the subsequent surrender by the English authorities of control over Crown lands to the local legislature by the New South Wales Constitution Act 1855 (Imp). His Honour’s description (at 111) of the story of the relationship between the Crown and those who wished to take up land has been summarised earlier in my reasons.

287               Toohey J next (at 110) explained the situation in what later became the State of Queensland, noting that pursuant to the provisions of the Crown Lands Unauthorised Occupation Acts 1839-1841 (NSW), a Commissioner of Crown Lands was appointed for the Moreton Bay District. His Honour noted (at 119) that in transmitting this Act to the Secretary of State in 1839, Governor Gipps stated that one of its aims was “[to put] a stop to the atrocities which have been committed both on them [the natives] and by them”. Toohey J said that “[t]he whole tenor of these provisions indicates a contemplation that Aborigines would be upon licensed lands”.

288               As has been noted, Toohey J next turned to the despatches by Earl Grey as Secretary of State to Governor FitzRoy in 1848 and 1849. His Honour said (at 119):

“The thrust of contemporary documents, in particular communications by the Secretary of State, Earl Grey, to the Governor of New South Wales make it clear that Aborigines were not to be excluded from land under pastoral occupation.”

289               Gaudron J (at 141) and Kirby J (at 227) also referred to Earl Grey’s despatches at this time and arrived at similar conclusions.

290               There can be no doubt that the writings of Dr Fry and those of Professor Henry Reynolds were influential in the reasoning of the majority in Wik. Toohey J said (at 108) that in his historical survey he was indebted to the monograph by Professor Reynolds and James Dalziel, “Aborigines, Pastoral Leases – Imperial and Colonial Policy 1826 – 1855”, (1996) 19(2) UNSWLJ 315. In his judgment in Wik, Kirby J (at 226) cited an essay by Reynolds, “Native Title and Pastoral Leases” in M Stephenson and S Ratnalpala (eds), Mabo: A Judicial Revolution, (University of Queensland Press, 1993). He also cited (at 230) an earlier work by Reynolds, Dispossession Black Australian and White Invaders (Allen & Unwin, 1989). Reynolds and Dalziel’s thesis was that by the end of the 1850s, colonial land policies aimed, inter alia, to ensure that Aborigines would not be prevented from having continued access to the pastoral lands of the colony as long as those lands were used for pastoral purposes (at 315).

291               As has been noted, the Solicitor-General for Queensland had argued in Wik (at 35) that the Order in Council of July 1849 was forwarded with a despatch that shows that Grey by then accepted that, absent an express condition, a pastoral lease conferred exclusive possession against all others, including Aboriginals.

292               However, Reynolds and Dalziel see the matter differently. They say (at 366):

“K. Effect of the Order in Council

The history of the 1849 Order in Council underlines two key differences between a lease for pastoral purposes and other forms of lease. Firstly, it was a lease for a specific purpose which had been created pursuant to statute. Secondly, the location, area and non-intensive use of lands to be leased for pastoral purposes distinguished ‘pastoral leases’ from leases for other purposes, of land elsewhere in the colony. Earl Grey acknowledged this when he pointed out that leases conferred only an exclusive right of pasturage and of ‘cultivating such land as they may require within the large limits thus assigned to them’ and were not intended:

… to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil, except over land actually cultivated or fenced in for that purpose. (emphasis added)

Although the Order in Council did not specifically refer to Aboriginal rights over pastoral leases, its meaning was nevertheless clear. During the 1830s, the need to take steps to ensure the ‘peaceable and effectual occupation’ of pastoral lands had been a concern to the Imperial and colonial governments.”

293               The authors (at 367) give examples of leases granted in New South Wales and Queensland in the 1860s and 1870s and later which contained conditions reserving to the “Aboriginal Inhabitants of the Colony” such “access … as will enable them to procure the Animals, Birds, Fish and other food on which they subsist”.

294               Reynolds and Dalziel describe the exchanges in 1849 as follows (at 368):

“Although the Permanent Under Secretary of the Colonial Office, Herman Merivale, thought that the Order in Council ‘will be found to answer the purpose, as to future leases’ the wording nevertheless concerned Parliamentary Under Secretary of State, Benjamin Hawes. In a Minute on the letter from the Colonial Land and Emigration Office enclosing the draft Order in Council he noted, the ‘nature and extent of the access of the natives must surely be defined – or far more serious collisions may arise’. Earl Grey noted that the Order in Council would ‘be sufficient with the suggested explanatory despatch’. It has been proposed that this remark suggests that Grey had had a change of heart or that he ‘refused to declare that the native rights deserved respect’. The explanatory despatch reaffirms Grey’s earlier views but clearly, he had accepted the approach recommended by Murdoch and Rogers and appreciated the practical difficulties they had encountered in drafting an instrument that would at once address concerns regarding the Aborigines but also other inconveniences to the public which it was anticipated would arise from the granting of leases. Grey may well have considered the reaction of the squatters. In any event, a general declaration of the rights conferred by leases had been rejected because it was thought that some leases might already have been granted. A similar declaration with respect to the Aborigines would no doubt have faced the same objection. On the other hand, within the constraints of the 1846 Act and 1847 Order in Council, the 1849 instrument gave the Governor the authority to insert conditions in leases and this after all was what FitzRoy had requested.” (Footnotes omitted)

295               Reynolds and Dalziel say (at 372):

“Grey felt that the management of colonial waste lands was properly a responsibility of the Imperial Government and that the protection of the Aborigines was a subject not just of concern ‘to the colony but to the nation’ as a whole. His reluctance to agree to the transfer of control over the management of these lands to colonial legislatures can be attributed to several factors, including it would seem, an unwillingness to let the colonists exercise an unfettered power over what happened to the Aborigines.” (Footnotes omitted)

296               The authors cite, in this connection, J M Ward, Colonial Self-Government. The British Experience 1759 – 1856, (Macmillan, 1976), esp. at p 328. There Ward said (of Grey):

“His successors, no less confident than he of the great destiny and fundamental good sense of large British communities overseas, were less trammelled by hopes of a uniform commercial policy for the whole empire and, it must be admitted, less scrupulous than he in their concern for indigenous peoples, who might be oppressed if European settlers were left to rule mixed populations without close imperial supervision.”

297               Another scholar, Dr Jonathan Fulcher disagrees and criticises, inter alia, the omission of a significant part of the quotation from Hawes. Fulcher says in his article “Sui Generis History? The Use of History in Wik” in G Hiley (ed), The Wik Case: Issues and Implications (Butterworths, 1997) (at 55 – 56):

“On the document of 17 April 1849 from Murdoch and Rogers to Earl Grey, Benjamin Hawes made a rare marginal notation. Reynolds and Dalziel merely refer to Hawes’ comment that the:

‘nature and extent of the access of the natives must surely be defined – or far more serious collisions may arise …’ [p 111].

However they leave out a critical piece of Hawes very brief note. After ‘arise’ Hawes wrote:

‘… than now that they can be restrained.’

He sought greater definition of how exactly this reservation would work in practice. Hawes was suggesting that leases enabled Aboriginal people to be excluded and this would prevent clashes. Frontier violence was a matter of constant concern to Colonial Office officials, and Hawes could see benefits in leasing land, thereby legally excluding Aboriginal people and so keeping settlers and Aborigines apart. Hawes clearly believed that leases had this legal effect, or he would not have used the word ‘restrained’.”

298               The scholarly debate remains unresolved. (For an analysis of Earl Grey’s role in colonial affairs, see J M Ward, above; and see also H Reynolds, Why Weren’t We Told (Viking, 1999) pp 210 – 215.) Plainly, this litigation is not the appropriate forum for its resolution, particularly in the absence of expert historical evidence.

299               In any event, as Ernest Scott observed in his introduction (at xi) to Stephen Robert’s History of Australian Land Settlement (1788 – 1920):

“Nobody can ever claim finality for historical work, nor should desire to do so; ….”

300               And see also F B Wiener, Uses and Abuses of Legal History: A Practitioner’s View, (Selden Society, 1962) at 9.

Associate:

Dated: 5 April 2000