FEDERAL COURT OF AUSTRALIA

Ward v State of Western Australia (No 3) [2015] FCA 658

THE COURT ORDERS THAT:

1.    Question 1 is answered "yes".

2.    Question 2 is answered "yes".

3.    It is, in the circumstances, unnecessary to answer Question 3.

4.    The matter be listed for further directions.

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

REASONS FOR JUDGMENT

1    In this proceeding, the applicant compensation claim group (claimants) seek a determination of compensation under the Native Title Act 1993 (Cth) (NTA).

2    When the proceeding was commenced in 2012, the compensation claim was founded on the allegation that, at material times immediately prior to the creation of the Gibson Desert Nature Reserve (claim area) under the law of Western Australia, in 1977, the claimants held exclusive possession native title to the claim area, which included the native title right to control use of and access to the whole of the claim area.

3    Until 6 August 2014 – just before the scheduled commencement of the hearing of the claim on 19 August 2014 – this allegation was not in issue. On 6 August 2014, however, the State of Western Australia applied for and was given leave to file a third further amended defence in the proceeding by which it alleged that, as a result of the grant of oil licence 21 in respect of oil prospecting area 26H (oil licence OPA 26H) registered on 13 September 1921, alternatively by the later grants of permits to explore in respect of prospecting areas PE 146H, PE 147H and PE 161H, at least the native title right to control use of and access to the whole of the claim area was extinguished, so that at material times, for the purposes of the compensation claim, any native title was of a non-exclusive nature. See Ward v State of Western Australia (No 2) [2014] FCA 825.

4    Following the commencement of the hearing on 19 August 2014, and the taking of the claimants’ direct evidence on country within or nearby the claim area between 19 August and 28 August 2014, the evidence of an expert anthropologist called by the claimants was taken in Perth on 19 February 2015. The hearing was then adjourned for consideration of extinguishment issues on 9 April 2015, and the taking of expert valuation evidence and final submissions later in 2015.

5    When the matter came on for hearing on 9 April 2015, in relation to extinguishment issues, however, senior counsel for the claimants proposed that the Court should answer separate questions concerning the extinguishing effect, if any, of the grants of the oil licence and permits to explore, before any further steps were taken in the hearing.

6    Senior counsel for the claimants indicated that, if those grants had the effect of reducing the former exclusive possession native title to a non-exclusive possession native title, then the claimants may instruct their solicitors and counsel not to proceed further with the claim, and so an early determination of the extinguishment issues would be calculated to serve the efficient management and disposition of the proceeding.

7    The State, by the Solicitor General, and senior counsel for the Commonwealth of Australia did not oppose the course proposed by the claimants.

8    Following a short adjournment of the hearing on 9 April 2015, the Court agreed to state separate questions settled by the parties. While the claimants initially proposed that the questions be stated under R 30.01 of the Federal Court Rules 2011 (Cth), upon reflection the Court considered the orders should be made under its general power to control a proceeding and to effect case management under ss 23 and 37P of the Federal Court of Australia Act 1976 (Cth). The Court made, relevantly, the following orders:

(1)    The following questions (the extinguishment questions) be determined by the Court, on evidence adduced by the parties, and following hearing the submissions of the parties concerning them, before the hearing and determination of any other evidence or issues in the currently part heard trial:

Question 1:    Was Oil Licence OPA 26H registered on 13 September 1921 validly granted?

Question 2:    If the answer to question 1 is yes, did the grant of that oil licence extinguish any native title right to control use of and access to the whole of the claim area?

Question 3:    If the answer to question 1 or 2 is no, did the grants of –

(a)    Permit to Explore PE 146H; and

(b)    Permit to Explore PE 147H; and

(c)    Permit to Explore PE 161H

extinguish any native title right to control use of and access to the whole of the claim area?

(2)    Following the determination of the extinguishment questions, the Court shall hear from the parties as to the further disposition of the matters in issue in the proceeding.

9    The Court now turns to these separate questions.

Question 1: Was oil licence OPA 26H registered on 13 September 1921 validly granted?

10    The tenure evidence adduced by the State identifies oil licence OPA 26H as an oil licence registered on 13 September 1921 in respect of an area of 72,000 square miles in Western Australia, including the claim area.

11    The oil licence was granted under s 6 of the Mining Act Amendment Act 1920 (WA) (MAA Act 1920) (which amended the Mining Act 1904 (WA)) and the regulations made thereunder (Mining Act 1904 Regulations). It was granted to Alfred James Mellor as licensee for a period of five years.

12    As it transpires, the oil licence was surrendered just under two years later, on 19 September 1923.

13    No evidence is led as to whether or not the rights conveyed by the oil licence were ever exercised while it was current; that is to say, whether prospecting for mineral oil was ever carried out in the claim area in the early 1920s.

14    The claimants submit that, as no formal oil licence instrument has been produced in evidence, there is no evidence that any valid instrument in the prescribed form (Form No 71) required by reg 25a of the Mining Act 1904 Regulations was ever issued and so the State has not discharged the onus it bears to prove a valid oil licence was granted as alleged.

15    The State contends that the evidence adduced by it enables the Court to infer that the oil licence was validly granted under the MAA Act 1920 and Mining Act 1904 Regulations.

16    The State relies on the affidavit of Mr Stephen Collyer made 23 March 2015. Mr Collyer is the manager of the petroleum register in the Petroleum Tenure and Land Access Branch of the Department of Mines and Petroleum (DMP) in the State of Western Australia. He said that he was aware that his colleague, Mr John Bennett, in the Petroleum Division’s Geospatial Section at DMP had undertaken, at an earlier time, a search for copies of oil licences and permits to explore, including oil licence OPA 26H. Mr Bennett was unable to find copies of any such licences or permits.

17    Mr Collyer said that he undertook a fresh search and commenced by searching the relevant departmental files for each of the relevant licences and permits.

18    He said he then discovered that the relevant files were all recorded in a card index, which predated the current electronic system, but found that three files had been destroyed and that copies of their contents had not been kept. He was unable to say exactly when this happened. The last use of a card index for a file entry was, however, in 1989 and the electronic system was introduced in about 1985.

19    He ascertained that, in relation to oil licence OPA 26H, the file had also been destroyed. However, DMP retained a copy of the contents of that file on microfilm. The microfilm comprises a total of 74 pages including a copy of the front cover of the file. The documents appear to have been filed in reverse date order. Most, but not all, of the documents include a folio number on the top right side. He says the microfilm copy of the file, 1940/21, contains the following irregularities:

(1)    folio numbers 11, 15, 16, 28, 32 and 33 are missing;

(2)    folio number 67 is also missing, although two documents are marked as folio number 66;

(3)    the map at folio 1 was filmed in several sections and was microfilmed twice; and

(4)    the handwritten file number “1939/21” that appears in the margin of some of the microfilmed images is incorrect – 1940/21 is the correct file number.

20    Mr Collyer said his search of DMP file 1940/21 in relation to oil licence OPA 26H confirmed that DMP did not retain a copy of the oil licence, being oil licence 21.

21    Mr Collyer produced with his affidavit the following documents from the microfilmed copy of the file in relation to the oil licence:

(1)    “Map of Western Australia showing Goldfields and other Mining Districts” showing an area cross-hatched in hand and marked “A J Mellor OPA 26H” (folio 1 (unnumbered));

(2)    application (Form No 72) by Mr Alfred James Mellor for a licence to prospect Crown land for mineral oil dated 22 August 1921 (folio 2);

(3)    memorandum from the Under Secretary for Mines to the Minister for Mines dated 6 September 1921 (folio 5);

(4)    letter from the Principal Registrar to Mr Alfred James Mellor dated 21 September 1921 and enclosed bond for signature and return (folios 7-8);

(5)    letter from Mr A J Mellor to the Minister for Mines dated 24 September 1921 (folio 9);

(6)    further letter from Mr A J Mellor to the Minister for Mines dated 24 September 1921 (folio 10);

(7)    letter from the Principal Registrar to Mr A J Mellor dated 13 October 1921 (enclosure missing) (folio 12);

(8)    letter from Mr A J Mellor to the Minister for Mines dated 17 October 1921 (folio 13);

(9)    letter from Mr A J Mellor to the Principal Registrar dated 20 September 1922 (enclosure missing) (folio 38);

(10)    letter from the Principal Registrar to Mr A J Mellor dated 19 September 1922 (enclosure missing) (folio 39); and

(11)    surrender (Form No 15) dated 17 September 1923 (folio 69).

22    The State submits that the affidavit of Mr Collyer provides evidence that:

(1)    the licensee made an application in accordance with the prescribed form (Form No 72) on 22 August 1921, including a written description of, and an attached plan sufficient to identify, the land the subject of the application;

(2)    the Principal Registrar recommended to the Minister for Mines that he approve the application on 6 September 1921, and the Minister for Mines gave the subsequent approval on 13 September 1921;

(3)    the Principal Registrar informed the licensee that his application had been approved by the Minister for Mines and that the licence would be issued upon lodgement of the required bond;

(4)    the licensee paid the required bond on 24 September 1921, receipt of which was acknowledged by endorsements made on the file on behalf of the Principal Registrar dated 26 September 1921;

(5)    the Principal Registrar sent oil licence 21 to the licensee by letter dated and sent on 13 October 1921;

(6)    the licensee acknowledged receipt of oil licence 21 by letter dated 17 October 1921;

(7)    the licensee paid the annual fee for the second year; and

(8)    a formal surrender of the oil licence dated 17 September 1923 was received by the Principal Registrar on 19 September 1923.

23    I accept the submissions made by the State and infer, having regard to the undisputed evidence led, that the oil licence was formally issued to the licensee and sent to him by letter on 13 October 1921.

24    In these circumstances, it is not necessary to presume the regularity of formal governmental processes to come to such a conclusion because the evidence, to the Court’s satisfaction, establishes that the oil licence was in fact issued.

25    As a result, the Court finds that oil licence OPA 26H registered on 13 September 1921 was validly granted as alleged by the State.

26    The answer to Question 1 – was oil licence OPA 26H registered on 13 September 1921 validly granted – is, yes.

Question 2: If the answer to question 1 is yes, did the grant of oil licence opa 26H extinguish any native title right to control use of and access to the whole of the claim area?

Statutory context

27    Section 6 of the MAA Act 1920 at material times in 1921 relevantly provided that:

(1)     The Minister may, subject to this Act and the regulations, grant to any person who desires to prospect Crown land for mineral oil a license to occupy the land described therein for a period of not exceeding ten years ...

(2)    Every such license shall, subject to this Act and the regulations, confer on the licensee the exclusive right to bore and search for mineral oil on the land therein defined.

(3)    The fee payable for such license shall be Five pounds per annum, payable yearly in advance.

(4)    If any such Crown land is held under lease or permit for pastoral or timber purposes, the privileges conferred by a license shall be exercised by the licensee subject to the rights of the lessee or permit holder, and to such regulations as may be prescribed.

28    There is no dispute that at material times:

(1)    the land over which the oil licence was granted was Crown land; and

(2)    the whole of the claim area was within the land defined by the oil licence.

29    By s 2 of the MAA Act 1920, the Mining Act 1904 was amended to include the following definition of “mineral oils”:

petroleum and other mineral oil occurring in a free state and which may be obtained by boring or wells; the term does not include mineral oil which may be extracted from coal, shale or other rock by some industrial process.

30    Thus, by virtue of s 6(2), the licensee, upon the grant to him of the oil licence, appeared to have had conferred on him “the exclusive right to bore and search for mineral oil on the land therein defined”.

31    The only qualification to the nature or extent of the right so conferred on the licensee appears to have been that provided by s 6(4), in that the “privileges conferred” were stated to be “subject to the rights of the lessee or permit holder”, where the Crown land in question was held under a lease or permit for pastoral or timber purposes, and subject “to such regulations as may be prescribed”.

32    While s 6(4) is relied upon by the claimants in the extinguishment argument put, it is not suggested, and it is not the case, that the land defined by the oil licence was under lease or permit for pastoral or timber purposes, or that there were any relevant regulations to which the oil licence was subject as far as the rights of other persons were concerned.

33    Section 8 of the MAA Act 1920 should also be noted, in that it provides that:

Any person who searches or attempts to search for mineral oil on land included in any license in contravention of the rights of the licensee, or who (without reasonable ground, proof whereof shall be upon him) hinders or interferes with any licensee in the exercise of his rights under the license, shall be guilty of an offence.

Penalty : Fifty pounds

34    Section 20 of the MAA Act 1920 should likewise be noted:

When an application for a license or lease has been approved, notice of such approval shall be given to the applicant, and upon the receipt thereof he shall be at liberty to enter upon the land for the purpose for which the license or lease is to be granted as if he were the licensee or lessee, and shall be subject to the terms and conditions of the license or lease to the same extent as if it had been actually issued.

Provided that any application for a lease approved before the land comprised in the application has been surveyed shall be deemed to be approved subject to the land being found to be available after the survey has been made.

35    Finally, reg 25a of the Mining Act 1904 Regulations at material times reflected the MAA Act 1920 and provided that:

(1)     A license to occupy Crown lands for the purposes of prospecting for mineral oil may, subject to the provisions of Part II of ‘The Mining Act Amendment Act, 1920,’ be granted by the Minister and shall be in Form No 71 in the Schedule.

(2)     Every such license granted shall be in force for a period to be fixed by the Minister, but not exceeding ten years, and shall, subject to these regulations, confer on the licensee the exclusive right to bore and search for mineral oil on the land thereon defined.

36    Regulation 25a(2), in particular, reflected the right “to bore and search for mineral oil” to which s 6(2) of the MAA Act 1920 relevantly referred.

Submissions of the State and Commonwealth

37    The State and the Commonwealth submit that the right granted to the licensee by the oil licence “to bore and search for mineral oil on the land therein defined” was inconsistent with the native title right to control use of and access to the whole of the claim area, and so wholly extinguished it.

38    The State and the Commonwealth submit that the subsequent grants of petroleum and mining tenure, therefore, had no further effect on native title in that regard, because native title had already been relevantly partially extinguished by the earlier grant of the oil licence.

39    In the State’s submission, the nature and content of the rights granted under the oil licence are to be derived from a consideration of the relevant provisions of the MAA Act 1920, the Mining Act 1904 Regulations and the terms of the licence, and are as follows:

(1)    In accordance with s 20 of the MAA Act 1920, a right of entry onto the land the subject of an application (for the purpose of which the licence is to be issued) arose immediately upon receipt of notice of approval of an application. Such right of entry was subject to the terms and conditions of the licence to the same extent as if it had in fact issued.

(2)    The prescribed form in relation to oil licences, Form No 71 of the Mining Act 1904 Regulations, conferred on the licensee “[t]he exclusive right ... to occupy for the purpose of prospecting for mineral oil” subject to the MAA Act 1920 and the regulations in force.

(3)    Section 6 of the MAA Act 1920 provided that a licence issued under s 6 conferred on the licensee “the exclusive right to bore and search for mineral oil on the land therein defined”. Regulation 25a of the Mining Act 1904 Regulations was in similar terms.

40    The State contends the licensee’s right to occupy the land in accordance with the above provisions necessarily implied that any exclusive native title right to control access to the land and its resources no longer existed from the date on which the application for the oil licence was approved.

41    The State relies on the authority of Daniel v State of Western Australia [2003] FCA 666 (Daniel) and Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 (Banjima) in support of this finding.

42    The State notes that in Daniel, Nicholson J considered the rights conferred by oil licences under the MAA Act 1920. His Honour said at [851] that s 6 of the MAA Act 1920 provided that the licensee had “a right to occupy the subject land for a period not exceeding 10 years and an exclusive right to bore and search for mineral oil on the land”. His Honour also noted that s 8 of the MAA Act 1920 provided that it was an offence for any other person to either search or attempt to search for mineral oil on land the subject of a licence or to hinder or interfere with any licensee in the exercise of his rights under the licence. His Honour found, at [852], that “[t]he grant of each licence to prospect Crown lands for mineral oil within the claim area therefore would have extinguished any exclusivity of native title rights”.

43    The State further observes that, in Banjima, I noted at [1941] that the register entry for oil licence OPA 20H recorded that the licence was applied for on 6 April 1921 and was registered for the period 13 September 1921 to 12 September 1926, with rent paid during the period 1922 to 1925. On the basis of that evidence, I followed Daniel to find, at [1948] and [1984], that the oil licence in that case extinguished any exclusive native title access rights.

44    The Commonwealth adopts the State’s submissions and relies on the authority of Daniel and Banjima. It says there is no difference between the form of the legislation considered in Banjima and that which governed the oil licence here, and the same result should follow.

45    The Commonwealth further submits that the reasoning in Daniel and Banjima is entirely consistent with the principles in relation to extinguishment of native title established by Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, and recently confirmed in Western Australia v Brown (2014) 306 ALR 168 at [37]-[38]; [2014] HCA 8.

Claimants’ submissions

46    In the claimants’ submission, the granting of the oil licence constituted an act like that contemplated in Akiba v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33; while the oil prospecting rights conveyed by it may, to some extent, be inconsistent with the enjoyment or exercise of a native title right to control access and use, they are not inconsistent with the continued underlying existence of the native title right to control access and use. The claimants say that the oil licence only had the effect, therefore, of regulating the way the native title holders could exercise or enjoy their right to control access or use in the very limited circumstances where the licensee was doing what he or she was authorised to do under the oil licence.

47    The claimants summarise the relevant principles as follows:

(1)    Extinguishment only occurs where rights granted or created by the Crown are inconsistent with native title rights. This is an “objective inquiry” which requires identification of, and comparison between, the two sets of rights. In particular, it requires a careful analysis as to the nature and extent of the rights which Parliament intended to create under the statute: Ward at [78], [82], [149], [151] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Brown at [43].

(2)    Inconsistency is the state of affairs where “the existence of one right necessarily implies the non-existence of the other”: Brown at [38]; Karpany v Dietman (2013) 252 CLR 507 at [29]; [2013] HCA 47.

(3)    It is the inconsistency of rights that lies at the heart of any question of extinguishment of native title: Akiba at [31]-[35] (French CJ and Crennan J), [52] (Hayne, Kiefel and Bell JJ).

(4)    The distinction between the exercise of a native title right and the subsistence of that right is relevant to the construction of statutes said to effect the extinguishment of native title rights: Akiba at [29] (French CJ and Crennan J).

(5)    Regard must also be had to the principle that a statute ought not to be construed as extinguishing native title rights unless no other construction is reasonably open: Akiba at [24], [29]-[30] (French CJ and Crennan J). In this respect, the rights granted cannot rise above the statutory source.

48    In oral submissions, senior counsel for the claimants also noted the reasoning of French CJ and Crennan J in Akiba at [25]:

Recognition of the distinction between a broadly stated right and its exercise in particular ways or for particular purposes is implicit in the legislative scheme of the NT Act dealing with extinguishment. The NT Act contemplates the existence of legislative or executive acts which ‘affect’ native title rights and interests by constraint or restriction but do not extinguish them.

49    Senior counsel observed that their Honours:

    referred, at [25], to s 227 of the NTA, which states that an act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise;

    also referred, at [26], to s 238 which sets out the effect of a reference to the non-extinguishment principle applying to an act:

The ‘non-extinguishment’ principle is a statutory construct. It is nevertheless underpinned by a logical proposition of general application: that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished.

    further noted the distinction between the existence and exercise of a right that appears in s 211 of the NTA, and, at [29], stated:

The existence of the distinction between the exercise of a native title right for a particular purpose or in a particular way, and the subsistence of that right, is relevant to the construction of statutes said to effect the extinguishment of native title rights. Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests.

(Emphasis added.)

50    The claimants, relying on the dicta of French CJ and Crennan J in Akiba, say the NTA contemplates that an act may affect native title, in the sense that it interferes with the enjoyment or exercise of native title, without extinguishing those rights and interests.

51    In the claimants’ submission, there is no inconsistency or “logical antinomy” (as it was called in Brown) between the entitlement under the oil licence to enter land for the limited purpose, to bore and explore, and the broader native title right to control access to the land. The native title right of exclusive possession was neither extinguished nor suspended, but could not be exercised against the licensee for the short period and for the very limited purpose of the licence. The rights granted were not inconsistent with the continued existence of the native title right.

52    The claimants contend that the distinction between the exercise of a native title right and the subsistence of that right is relevant to the construction of statutes said to effect the extinguishment of native title rights.

53    Thus, it is contended, in order to determine whether there is an inconsistency between statutory and native title rights close regard must be had to both the statute and the terms of the instrument under which the statutory rights were created. Regard must also be had to the principle that a statute ought not to be construed as extinguishing native title rights unless no other construction is reasonably open. In that regard, it is contended, the rights granted cannot rise above the statutory source.

54    It is submitted that prior to its extinguishment, native title in relation to the area that now comprises the Gibson Desert Nature Reserve was a right of possession, occupation, use and enjoyment to the exclusion of all others. The High Court confirmed in Ward at [20], that “it is from the traditional laws and customs that native title rights and interests derive” (emphasis in original). Thus, in considering the intersection of traditional laws and customs with the common law, or with the rights derived from statute, it is important to pay careful attention to the content of the traditional laws and customs.

55    The claimants submit that the legislation under which the oil licence was granted did not disclose any intention, let alone a clear and plain intention, to extinguish any existing rights or interests in land. In that regard, the oil licence would appear to be in no different position to the mining exploration licence considered by Carr J in Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467; [1997] FCA 1404.

56    In the claimants’ submission, like those exploration licences, the oil licence was for a limited period (five years), for a limited purpose (to prospect for mineral oil), over a very large area of land, which could be reduced at any time by subsequent Crown grants (to which reg 25b(c) of the Mining Act 1904 Regulations appears to relate) and was subject to the rights of those who held leases or permits for pastoral or timber purposes (s 26(4) of the MAA Act 1920). It lacked an element of permanence.

57    The claimants say that while no formal lease instrument has been produced, it is clear that the relevant legislation does not disclose any intention that existing rights or interests in land would no longer be recognised. They say it discloses an intention wholly to the contrary, thus, a native title right of exclusive possession was neither extinguished nor “suspended”. The right could not be exercised against the licensee for the short period of the licence and for the very limited purposes of the licence. But it is submitted that does not mean that the rights that were granted were inconsistent with the continued existence of the underlying native title right or interest.

58    The claimants disclaim any suggestion that they are seeking to reagitate an argument that was put by the claimants and rejected by the Court in Banjima (at [1872]) and in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 (at [787]-[788]) in relation to the grant of a pastoral lease that a “qualified” right to control access survived the grant of the oil licence. They contend that no right to control access has been extinguished at all.

59    In particular, they contend the nature of the right conferred by the oil licence was so ephemeral and transitory that it simply regulated the right to control access, and did not grant significant rights of occupation – just a limited right to enter the land to prospect.

60    The claimants seek to distinguish Daniel and Banjima from the present case. They say that in Daniel, the first applicants accepted that exploration tenements would have extinguished any exclusivity of native title rights in circumstances where Nicholson J, at [292], found that there was, in any event, no native title right to control access and hence, no relevant extinguishing effect resulted.

61    They say the claimants in Banjima agreed that petroleum titles granted under s 6 of the MAA Act 1920 and under Div 1 of Pt IV of the Petroleum Act 1936 (WA) extinguished any “unqualified” native title rights to control access and so the Court proceeded on that basis without hearing argument or giving reasons (see [1947]).

62    Therefore, in the claimants’ submission, Daniel and Banjima are not persuasive on this point and the Court should not feel bound by the findings in those cases.

Reply submissions of the State and Commonwealth

63    The State contests the claimants’ reliance on Mineralogy. It notes, in particular, the Court’s finding, at 486, that the grant of an exploration licence did not extinguish any native title rights and interests in relation to the land the subject of the exploration licence, and that the evidence at most showed “not extinguishment of native title rights by the original grant, but the potential for temporary and partial inconsistency with the enjoyment or exercise of native title rights” (emphasis added). The State submits that the reasoning in Mineralogy is plainly wrong and should not be followed in light of the decisions of the High Court in Ward and Brown, and to the extent that other decisions may have adopted the reasoning in Mineralogy, they too should not be relied upon.

64    The State acknowledges that in Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 (Ward FC), at [591], the majority in the Full Court (Beaumont and von Doussa JJ) endorsed Mineralogy in the context of considering the extinguishing effect of a general purpose lease under s 86 of the Mining Act 1978 (WA), accepting that length of term and degree of ‘‘permanence” were relevant to inconsistency.

65    It also notes that, in Daniel, which was decided after the decision of the High Court in Ward, Nicholson J concluded that no inconsistency arose between the rights held under prospecting licences or exploration licences under the Mining Act 1978 and native title rights and interests. His Honour considered that to be the result whether he applied Ward FC (endorsing Mineralogy) or Ward (at [838], [844]).

66    The State submits, however, that in Brown the High Court delivered a definitive decision in relation to the principles to be applied when considering the extinguishment of native title rights and interests by the grant of inconsistent rights. The State emphasises it is apparent, from the result in Brown and the circumstances of that appeal, that, at common law, there are no circumstances in which native title rights or interests may coexist with, or are “suppressed” or “suspended” by, inconsistent statutory rights, or revive once rights cease to be exercised, consistent with previous authority: Akiba at [10], [35] (French CJ and Crennan J); Ward at [81]-[82] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Fejo v Northern Territory (1998) 195 CLR 96 at [43]-[45], [56]-[58]; [1998] HCA 58 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Wik Peoples v Queensland (1996) 187 CLR 1 at 94-95; [1996] HCA 40 (Brennan CJ).

67    The Commonwealth similarly submits the reasoning in Mineralogy is inconsistent with Ward and should not be considered good law, referring to Daniel, at [837]. It says the plurality of the High Court in Ward, at [82], rejected the proposition that, absent particular statutory provision, there could be suspension of one set of rights in favour of the other: two rights are inconsistent or they are not. Further, the Commonwealth says, the reasoning in Ward made clear that it is inconsistency of rights which must be assessed, so that even a short term tenement can have an extinguishing effect if the relevant inconsistency of rights appears (see Ward at [80]).

68    The Commonwealth says the claimants effectively argue that the granted rights and native title right are “not so inconsistent that they cannot go together”, a flaw rejected in Ward, as restated in Brown at [38].

69    The Commonwealth contends that the oil licence extinguished the native title right to use and control access to land. It says the fact that the oil licence, like the exploration licence considered in Mineralogy, was for a limited purpose (to prospect for mineral oil) does not prevent the licence from having an extinguishing effect on native title. Whether there is or is not inconsistency in any given case will depend upon the nature of the rights being compared. In the Commonwealth’s submission, a statutory right to use or access land, irrespective of limitations as to purpose, is inherently inconsistent with exclusive native title rights.

70    Further, the Commonwealth says the fact that the oil licence was over a large area of land does not prevent the licence from having an extinguishing effect on native title. The High Court observed in Brown, at [46], that the right of the joint venturers to use any part of the land covered by the mineral leases would have extinguished a right to control access over the whole of the land if such a right had existed at the time the leases were granted.

71    The State also contests the claimants’ submission that Daniel and Banjima should be distinguished from this case. It says Daniel and Banjima each dealt with the extinguishing effect of one or both of the petroleum titles under consideration in this proceeding. With regard to Daniel, the State says the claimants’ concession that exclusive native title rights were extinguished was properly made in response to the submissions made on behalf of the State in that matter. The State submits I considered Daniel good law in Banjima notwithstanding that concession. It says that in Banjima, the issue of the extinguishing effect of the petroleum titles remained live in circumstances in which the claimants in that matter asserted a right to control, albeit a “qualified” right. At [1948], I expressly accepted the State’s submission as to extinguishment of exclusivity and rejected the claimants’ submission that there was a “qualified” right to control.

72    The Commonwealth agrees, and further notes that while the claimants in Daniel accepted that the grant of the licence would have extinguished any exclusivity of native title rights, this does not detract from the correctness of Nicholson J’s reasoning as to why that was so. The Commonwealth also refers to Banjima at [1948], and further notes I reached the same conclusion regarding oil prospecting areas in Badimia at [873] (although the Court notes the discussion in Badimia was strictly obiter dicta as the Court did not accept that the claimants had established the existence of native title).

73    Further, the Commonwealth submits that, having identified the two sets of rights – the native title access control right and the statutory oil prospecting right – the extent of the inconsistency becomes clear. It says, referring to Brown at [38], the existence of a native title right to control use of and access to land cannot, without logical contradiction, stand at the same time as any statutory right to use and access the same land, even if the statutory right is non-exclusive, and irrespective of whether it is limited in time or as to purpose. Similarly, it says, the existence of a native title right to decide the use to which land should be put cannot, without logical contradiction, stand at the same time as any statutory right to use the same land for a specific purpose, no matter how limited that purpose might be, and even if the statutory right is non-exclusive.

74    The Commonwealth also refers to the reasoning in Brown at [57], and says that on the day following the grant of the oil licence, the native title holders could not have exercised either the right to control access to the land (as opposed to a right to access the land), or the right to decide the use to which the land should be put (as opposed to a right to use the land), without “breaching” the right of access and/or use which had been granted to the licensee.

75    Finally, the Commonwealth, in oral submissions, took issue with the claimants’ reliance on Akiba, contending that Akiba considered the native title right to take resources, not to control access to land, and the reasoning is not applicable in cases where there has been a grant of right to an individual, rather than the regulation by legislation of existing rights of a particular kind.

Consideration

76    In Ward, the Ward claimants (as they were referred to in the judgment of the plurality of Gleeson CJ, Gaudron, Gummow and Hayne JJ) contended that the native title of the claimants was a communal right to land and not a mere bundle of rights, and so was not amenable to partial extinguishment. Accordingly, unless a law or executive act struck at the community title, all rights derived from it would continue. Individual grants of interests to third parties, for example, would constitute mere regulation of native title or operate to curtail its enjoyment or to suspend native title rights.

77    The result, those claimants contended, was that there was no extinguishment of their native title unless the grant was of a fee simple, or such other grant that exhibited that degree of permanence and impossibility of coexistence with their native title that satisfied the clear and plain intention test for extinguishment laid down in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

78    In many respects, the argument put on behalf of those claimants reflected the “adverse dominion” test which had been suggested in the British Columbia Court of Appeal in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 670-672 (Lambert JA).

79    In Ward v State of Western Australia & Ors (1998) 159 ALR 483; [1998] FCA 1478 at first instance, the trial judge (Lee J) described that test at 508 in the following terms:

First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an Aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of Aboriginal title or right and not merely a temporary suspension thereof.

80    In the Full Court, in Ward FC, at [684], North J in dissent suggested that there may be “inconsistency between the rights and interests created by the law or act [in question] and native title” but “that native title will continue where the degree of inconsistency is not sufficient to extinguish native title” (emphasis added).

81    North J added, at [689], that:

A minor or insignificant inconsistency between the rights or interests created and native title could not lead to such a far-reaching consequence as total abrogation of native title. There must be proportionality between the impact of the law or the act and the effect on native title. Only a law or act which has the effect of totally replacing native title by completely nullifying it will result in extinguishment of native title. The inconsistency between the law or act must be total, fundamental or absolute to effect extinguishment. Thus, where native title is a permanent right to land, only a law or act which has permanent consequences adverse to the existence of the right to land will extinguish native title. Such a law or act must give rise to rights which fully eclipse native title. Where the inconsistency is not total or absolute it is not necessary that native title be abolished in order to allow the unfettered exercise of inconsistent rights or interests. It is only necessary that the enjoyment of the rights and interests dependent upon the holding of native title is held in abeyance for the duration of the existence of the inconsistent rights or interests. As long as the exercise of the rights or interests dependent on native title is suspended, the exercise of inconsistent rights or interests is not impeded.

82    The plurality in Ward observed, at [75], that Lee J had applied the adverse dominion test to conclude that the claimants had native title rights and interests in respect of much of the area they claimed. His Honour had rejected the contention that some or all of those rights and interests had been extinguished.

83    The plurality also noted, at [77], that some of the parties to the appeal in the High Court contended that what was said about adverse dominion was no more than the use of different language to express a test of extinguishment which had been, or should be, adopted in Australia as the criterion for the withdrawal by the common law of the recognition of native title spoken of in para (c) of the definition in s 223(1) of the NTA.

84    In that regard, the plurality said, at [78], that the cases often refer to the need for those who contend that native title has been extinguished to demonstrate a “clear and plain intention” to do so, such as in Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 423; [1995] HCA 47 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

85    Their Honours said, however, that this expression must not be misunderstood; and referred to Wik at 168-169 (Gummow J). Their Honours said, at [78], that:

The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title.

86    Their Honours added that it follows that referring to an “expression of intention” (emphasis in original) is apt to mislead in these respects, and stated that, as Wik at 185-186 (Gummow J) and Fejo at [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) reveal:

Where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties – the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issues with which we must deal in these matters.

87    This approach, established in Ward, means that in a case such as the present, the fact, if it could be shown, that the licensee of the oil licence never actually exercised the rights granted in the claim area is totally irrelevant to the objective inquiry required.

88    So too is any attempt to assess the subjective intention of the Parliament in making the legislation that permitted the grant, or the executive in making the grant, by reference to the fact that under the MAA Act 1920 an oil licence could only be granted for a limited purpose and for a limited time.

89    All that matters is “an objective inquiry which requires identification of and comparison between the two sets of rights”.

90    The plurality in Ward did not accept the proposition put that the Ward claimants’ native title was a community title, practically equivalent to full ownership.

91    At [88], their Honours said that it may be accepted, however, having regard to the findings of Lee J, that a core concept of traditional law and custom is the right to be asked permission and to “speak for country”. Their Honours observed:

It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others

a reference to s 225(e) of the NTA.

92    Their Honours added that the expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

93    As a result, at [89], the plurality said:

The expression ‘possession, occupation, use and enjoyment … to the exclusion of all others’ is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of ‘possession’ of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.

94    The plurality added, at [90], that:

It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with ‘country’ in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.

95    Their Honours further remarked, at [91], that:

An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded.

(Emphasis added.)

96    Their Honours then went on, at [91], to state:

But because native title is more than the right to be asked for permission to use or have access … there are other rights and interests which must be considered, including rights and interests in the use of the land.

97    As a result, the plurality said, at [94], that the question of extinguishment of native title cannot be answered without first identifying the rights and interests possessed under the laws and customs which are said to have been extinguished. At [95], their Honours added that the metaphor of “bundle of rights” is useful in two respects. It draws attention, first, to the fact that there may be more than one right or interest and, secondly, to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom and not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

98    Applying this approach, first in relation to the Western Australian pastoral leases under consideration in Ward, the plurality said, at [178], that on no view did a pastoral lease give the holder a right to exclusive possession of the land. Their Honours noted at [177] that, as in Wik, the focus of the extinguishment argument had been on whether the pastoral leases in question conferred exclusive possession of the land on the grantee, so that native title was wholly extinguished.

99    Their Honours, at [192], found that the pastoral leases denied the native title holders the continuation of a traditional right to say who could or who could not come on to the land in question. The consequence was that both at common law and also under s 12M of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (State Validation Act), the grants of the pastoral leases extinguished native title rights and interests.

100    Their Honours, at [193], said that to the extent that the grants of pastoral leases involved the grant of rights and interests not inconsistent with native title rights and interests, the rights and interests granted, and the doing of any activity in giving effect to them, prevailed over the native title rights and interests but did not extinguish them.

101    The plurality, at [194], provided the following examples of the grantee’s rights not inconsistent with individual native title rights or interests:

The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. For example, the native title right to hunt or gather traditional food on the land would not be inconsistent with the rights of the pastoral leaseholder although, as stated in par (a) of s 12M(1), the rights of the pastoral leaseholder would ‘prevail over’ the native title rights and interests in question. On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment.

102    Their Honours added it was necessary to use terms such as “many” and “probably” because there were limited findings by the trial judge as to the relevant content of the native title rights and interests the subject of the determination and without that identification it was not possible to say whether there was inconsistency with rights granted.

103    When it came to the Western Australian mining leases considered in Ward, the plurality, at [306], noted that Lee J had held that the grant of the mining leases “did not evince a clear and plain intention by the Crown to extinguish native title”.

104    The plurality, however, held at [308] that it did not follow that all native title rights and interests had been extinguished by those leases. As in the case of the pastoral leases, their Honours added that whether native title rights had been extinguished required closer identification of the relevant native title rights and interests that had been made to that point.

105    Their Honours found that the mining leases did not grant exclusive possession but involved only the grant of exclusive possession “for mining purposes”, directed at preventing others from carrying out mining and related activities on the subject land. As a result it did not follow that all other people were necessarily excluded from all parts of the lease area.

106    By contrast, at [369], their Honours found that a lease of parts of three reserves to Ivanhoe Grazing Co Pty Ltd in 1977 pursuant to s 32 of the Land Act 1933 (WA) for a term of one year, renewable annually, for grazing purposes (and limited to that use without prior approval of the Minister) was not a limited statutory interest in land. The rights granted to Ivanhoe were, therefore, rights as lessee of the land as that term is understood in the general law and Ivanhoe was thus granted a right of exclusive possession of the land which wholly extinguished all native title rights and interests.

107    Their Honours then observed, at [370], that that being so, it was not to the point to inquire how it would be expected that the lessee would use the land or whether that use could be compatible with the continued exercise of native title rights and interests. The grant of a right of exclusive possession effected extinguishment.

108    The result of Ward was that the inconsistency jurisprudence favoured by the trial judge, and North J on appeal, in particular the proposition that an individual grant of an interest under statute to a third party constituted mere regulation of native title, was rejected by the plurality, at [82], for a number of reasons.

109    First, it was said that it is an approach which proceeds from a false premise, that there can be “degrees of inconsistency of rights”, only some of which can be described as “total”, “fundamental” or “absolute”.

110    Secondly, their Honours said it is a mistake to assume that what the NTA refers to as “native title rights and interests” is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights.

111    Their Honours said, at [82]:

Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise.

(Emphasis added.)

112    It is appropriate to emphasise these first two sentences from the plurality’s judgment in Ward, that if two rights are inconsistent, “there will be extinguishment to the extent of the inconsistency”, for it recognises that where a right of a grantee is inconsistent with a right in the native title holder’s “bundle of rights”, the native title right might only be extinguished to the “extent of the inconsistency”.

113    In Brown, more recently, a Full Court of five judges (French CJ, Hayne, Kiefel, Gageler and Keane JJ), which it will be noted included Hayne J who was a member of the plurality in Ward, affirmed the principles of extinguishment arising from Ward.

114    In Brown, the Mount Goldsworthy iron ore project was described by a State agreement and, in particular, the grant of two mineral leases. The question before the Court was whether the grant of the mineral leases extinguished some or all of the claimed native title rights and interests.

115    The Court, at [33], said that to answer this question it was necessary, as the plurality held in Ward at [78], to ask whether the rights granted were inconsistent with the alleged native title rights and interests. Their Honours said that this question was “an objective inquiry which requires identification of and comparison between the two sets of rights”.

116    At [34], the Court confirmed that the identification of the relevant rights is an “objective inquiry”, which means that the legal nature and content of the rights must be ascertained. The decision in Wik, at 71-72 (Brennan CJ) and 185 (Gummow J), was referred to in this respect by their Honours.

117    The Court repeated that the nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised. It said that is why the plurality in Ward said that consideration of the way in which a right has been exercised is relevant only insofar as it assists the correct identification of the nature and content of the right.

118    In Brown, as noted by the Court at [35], the native title rights in question were agreed to be the non-exclusive rights to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land and to care for, maintain and protect from physical harm particular sites and areas of significance.

119    At [36], the Court added (as the plurality had in Ward, noted above) that it was important not to confine the understanding of rights and interests which had their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”, and no less important to recognise, as Fejo made clear (at [47]), that a right of exclusive possession affords the holder the right to “use the land as he or she sees fit and [to] exclude any and everyone from access to the land”.

120    The Court, at [37], stated that:

The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests?

(Emphasis in original.)

121    Thus, their Honours said that the decision of the Full Court of this Court in De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 was wrong in countenancing a notion of contingent extinguishment, contingent on the later performance of some act in exercise of “potentially inconsistent” rights granted. The Court noted that in the case before it, the question of inconsistency was to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases was important only to the extent to which it directs attention to the nature and content of the rights which were granted. In that context, at [38], the Court then repeated what was said in Ward at [82]:

There cannot be ‘degrees of inconsistency of rights’. ‘Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment’.

122    In the context of Brown, in which the Court overruled the concept of contingent extinguishment that had been applied in De Rose (No 2), the inconsistency of rights test meant that contingent extinguishment was not a possibility. Either the rights were inconsistent or they were not at the time of the statutory grant: there cannot be degrees of inconsistency.

123    The disapproval of any approach to extinguishment that involves acceptance of a “degrees of inconsistency” formula does not mean, however, that where any inconsistency between two rights is found, the whole of the native title right will necessarily be extinguished. As stated in Ward, and confirmed in Brown, if rights are inconsistent “there will be extinguishment to the extent of the inconsistency”. There may therefore be circumstances where, due to the nature of a particular right in the bundle of rights, the right will be found only to be partly inconsistent and will only be extinguished to that extent.

124    The Court in Brown, at [38], accepted a point made in argument by senior counsel for the native title holders, that inconsistency is that state of affairs where “the existence of one right necessarily implies the non-existence of the other”. Their Honours added that:

one right necessarily implies the non-existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.

125    Their Honours’ observations concerning “logical antinomy” should not, however, be seen to undermine or qualify the primary statement made in Ward that, if two rights are inconsistent, there will be extinguishment to the extent of the inconsistency. The language of “logical antinomy” simply emphasises that to the extent that there is inconsistency between two rights, there is extinguishment, not “suspension” or a “degree of inconsistency” – or, it should be said, mere regulation.

126    In Brown, the Court found, applying the inconsistency of rights test, and the analysis and findings made earlier in both Wik and Ward, that the rights granted by the mineral leases did not convey exclusive possession of the subject land to the joint venturers with the effect that they extinguished all native title rights and interests. In particular, the mineral leases did not extinguish the particular native title rights and interests identified above, which included the non-exclusive rights to access and camp on the land and to care for, maintain and protect from physical harm particular sites and areas of significance.

127    Accordingly, the decision in Brown did not have to deal with the question whether the grant of the mineral leases in question was inconsistent with a continuing native title right to control use of and access to the subject area. On the authority of Ward, the grant of any earlier pastoral leases, or the mining leases themselves, would have had the effect of extinguishing any such control right.

128    The principles identified and discussed above, drawn from Ward and confirmed in Brown, appear to have been reconfirmed in the recent decision of the High Court in Queensland v Congoo (2015) 320 ALR 1; [2015] HCA 17, although some controversy arose as to their application in the particular circumstances of that case.

129    In Congoo, a Full Court of the High Court, comprised of six members, had before it an appeal from the majority decision of a Full Court of this Court: Congoo v Queensland (2014) 218 FCR 358; [2014] FCAFC 9 (Congoo FC). In the Full Federal Court, North and Jagot JJ, Logan J dissenting, held that the regime of control over land created by reg 54 of the National Security (General) Regulations 1939 (Cth), which was made under s 5 of the National Security Act 1939 (Cth) during the Second World War, did not necessarily extinguish any pre-existing native title rights and interests in relation to the land.

130    North and Jagot JJ, at [52], in effect distinguished the case before them, in which the Commonwealth gained possessory rights, from circumstances, illustrated by Ward and Brown, where an estate or interest in land granted to a person is inconsistent in its incidents with continuing native title rights and interests. Their Honours said that in the case before them, while the Commonwealth took to itself a right of exclusive possession, it did not grant to any person, including itself, any such estate or interest. The question remained one of the inconsistency of rights, but the case did not begin and end with the fact that the Commonwealth took to itself a right of exclusive possession. Rather, it was necessary to examine the “context and language of the statute”, which in that case did not disclose any intention, let alone a clear and plain intention, that any native title rights or interests in the land no longer be recognised.

131    In the High Court, three judges (French CJ and Keane J, in a joint judgment, and Gageler J in a separate judgment) considered the appeal should be dismissed. The three other judges (Hayne J, Kiefel J and Bell J, in separate judgments) considered the appeal should be allowed. As a result of the rule expressed in s 23(2)(a) of the Judiciary Act 1993 (Cth), the appeal was dismissed.

132    Hayne J, Kiefel J and Bell J each found that the regime of control conveyed to the Commonwealth rights in the nature of exclusive possession: see Hayne J at [56]; Kiefel J at [102]; and Bell J at [134], [137]. As a result, their Honours considered that, upon application of the inconsistency of rights test, there was no room for the continuation of any claimed native title rights or interests and so all native title was extinguished at the time of the creation of the Commonwealth’s possessory rights. Consequently, none of their Honours found it necessary, or indeed considered it appropriate, to separately determine whether the relevant legislation evinced a “clear and plain intention” to extinguish all native title.

133    By contrast, at [34], French CJ and Keane J (not unlike the majority in the Full Court) appear to have drawn a distinction, in the application of the inconsistency of rights test, between circumstances (1) where an interest arises under a grant made pursuant to statute; and (2) where a right or power is conferred for a statutory purpose. Their Honours said:

Where a grant of an estate in fee simple or a lease in perpetuity conferring a right of exclusive possession is concerned, inconsistency is readily demonstrable. Where a right or power is conferred for a statutory purpose and is to be exercised for that purpose, inconsistency is not demonstrated by the fact that the repository of the right or the power may use it to prevent the native title holders from exercising or enjoying their rights.

134    Their Honours, at [38], concluded:

Where the law, as in this case, imposes a control regime which has a limiting purpose of not disturbing subsisting rights and interests, and where that purpose limits the scope of the rights granted and the powers conferred by the law, the impairment cannot be said to be inconsistent with the subsistence of native title rights and interests. It cannot support the conclusion that there was a ‘clear and plain legislative intention’ to extinguish native title.

135    Gageler J appears to have adopted a similar distinction to that stated by the Chief Justice and Keane J. His Honour, at [157], observed that there was no reason in principle why the common law should adopt any different approach to the inconsistency of rights test when it came to consideration of the effect of legislation imposing a prohibition on the continued recognition of native title rights. His Honour said, however:

The only question should be whether a particular prohibition is necessarily inconsistent with the continued existence of a particular native title right. That would not ordinarily be so in the case of a prohibition of the exercise of the native title right which is partial, temporary or conditional.

In that regard, Gageler J referred to Akiba at [29] (French CJ and Crennan J); and Karpany at [18]-[27].

136    In so saying, Gageler J, like French CJ and Keane J, relied particularly on the need, arising under many references in the native title case law, to discern a “clear and plain intention” to extinguish native title in a valid exercise of sovereign power in order to conclude that native title has been extinguished at common law. With regard to these references to the need to discern a “clear and plain intention” to extinguish native title, his Honour said, at [159]:

They are to be understood as directed to the judicial determination of the scope of legal change wrought by an exercise of sovereign power – relevantly, for present purposes, to the judicial determination of the incidents of a legislatively conferred right or of the ambit of a legislatively imposed prohibition. So understood, they have, as French CJ and Keane J put it in the present case, ‘normative force’ [footnote omitted]: they inform constructional choice. They are not inherently in tension with the common law test being one of ‘logical antinomy’ of rights [footnote omitted]. To the contrary, they inform one aspect of its application.

137    It may be said, therefore, that three judges – French CJ, Keane and Gageler JJ – considered that the application of the “clear and plain intention” requirement can continue to have consequences, in certain cases, such as where a right or power is conferred for a statutory purpose or imposes a prohibition on the continued recognition of native title rights.

138    The three judges who considered the appeal should be allowed each held that, in applying the inconsistency of rights test, it was inappropriate to take into account the duration or purpose of the interest conveyed to the Commonwealth.

139    Kiefel J, at [118], for example, said that the claimants had not explained why they said that the fact that the right of exclusive possession was limited to particular statutory purposes meant that their possession was not inconsistent with native title rights. Her Honour added, at [119]:

It is the limited duration of reg 54 which assumes importance to the argument that it may be seen as intended that ‘all rights’ continued. The real question is whether that feature of the regulation and the Military Orders is relevant to the continuance of native title rights and interests and to the question of their extinguishment.

140    Her Honour added, at [124], that on the present state of the law it is “irrelevant” to the question of extinguishment that a right granted with respect to land is “impermanent”.

141    Bell J similarly considered, at [153], that settled authority was against acceptance of the claimants’ and the Commonwealth’s contentions. At [152], her Honour summed up the claimants’ and the Commonwealth’s propositions, and rejected them, in the following terms:

The Commonwealth proposes that common law recognition of native title is not so infirm that it cannot conceive of ‘a distinction between the tree and the fruit’. This is in aid of the submission that the Commonwealth took its right of possession upon the footing that native title rights and interests, along with all other interests in the land, were subsisting during the interval of the war and that money compensation was substituted for the ability to exercise the rights. Conceptually, the argument confronts the same difficulty as the contention that native title is suspended during an interval created by the conferral of a freehold estate. That contention was rejected in Fejo v Northern Territory. In their joint reasons in that case, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed that it is an argument that seeks to convert the fact of continued connection with the land into a right to maintain that connection [footnote omitted].

142    Hayne J, who as noted above was a member of the plurality in Ward and a member of the Full Court in Brown, saw no room for the Court to depart, as his Honour saw it, from the settled law established by those authorities in the manner proposed by French CJ and Keane J, and Gageler J.

143    Plainly, his Honour did not see any basis for distinguishing between a circumstance where statutory rights are created by a grant pursuant to legislation, and a circumstance where rights and powers are conferred for a statutory purpose or a prohibition on the continued recognition of native title is created by primary legislation itself.

144    His Honour, at [65], assuming for the purposes of argument that legislation could inferentially or impliedly superimpose the incident of suspension of native title rights and interests, considered the legislation in issue in the appeal before the Court could not be understood as having that effect. His Honour stated:

That legislation validly authorised the Commonwealth to take to itself rights over the land which were inconsistent with the native title rights and interests that have been described. The view that the legislation worked only a temporary suspension of the exercise of the native title rights and interests depends upon assuming or asserting either that the applicable statutory and regulatory provisions intended to preserve all other interests or that they should be construed as having that effect. There is no basis for making an assumption or assertion of that all-encompassing generality. None was identified in argument.

(Emphasis in original.)

145    Hayne J, at [68]-[73], strongly disapproved of reliance on “intention” and “purpose” in the light of settled authority.

146    In particular, at [74], his Honour said that what was said in Ward “does not support the proposition that a power conferred for a statutory purpose, to be exercised for that purpose, may not create rights which are inconsistent with native title rights and interests”.

147    His Honour, at [75], bluntly rejected any “supposed analogy” between the reg 54 orders and the mining interests in Ward and Brown, observing that any such analogy:

founders on the rock of the radical difference between the two kinds of rights. The reg 54 orders gave the right to take possession of land to the exclusion of all others, albeit for a limited time. The mining interests in issue in Ward and Brown gave the holder exclusive rights only to search for and win whatever minerals were to be found on the relevant land.

148    Hayne J ultimately returned to the primary holding in the judgment of the plurality in Ward which rejected the adverse dominion test suggested in Delgamuukw. His Honour, at [78], emphasised that an important part of the ratio decidendi of Ward is the rejection of tests of extinguishment other than the inconsistency of rights test which had been established “in earlier decisions of this Court”. His Honour said that each of the following tests was specifically rejected in Ward:

(1)    the adverse dominion test suggested in Delgamuukw;

(2)    a test dependent upon so-called “permanent” adverse dominion; and

(3)    a test dependent upon “degrees of inconsistency”.

149    His Honour, at [79], saw references, in the appeal, to the “temporary nature of the rights taken by the Commonwealth and the temporary nature of the circumstances” as seeking to revive one or other of those rejected tests.

150    In my view, properly understood, none of the judgments in Congoo (nor the majority judgment in Congoo FC) suggests that, in a case like that presently before me, the inconsistency of rights test as described and applied in Ward and Brown is inapplicable. This is not a case where the rights created in the non-native title party by the oil licence can be characterised as a power conferred for a statutory purpose. Nor do I think that they can be characterised as a mere prohibition on the continued recognition of native title rights, in the way Gageler J characterised the relevant legislation in Congoo. Rather, they are rights that arise under a grant made by statute. Indeed, this case involves the grant of an interest pursuant to statute, very much like those grants considered in Ward, where the inconsistency of rights test was devised in order to ascertain whether any extinguishment of native title rights and interests had been effected by a statutory grant.

151    There is no room in this case, therefore, having regard to authority, to inquire whether, notwithstanding the apparent inconsistency between the rights granted by the oil licence and the native title right in issue, the MAA Act 1920 otherwise evinced a clear and plain intention that the grant of the oil licence should totally extinguish all native title rights and interests then subsisting, having regard, for example, to the nature of the interest conferred by the oil licence, its duration, and the like.

152    It follows that the decision in Mineralogy, upon which the claimants rely, should not, with respect, be followed.

153    It is accepted that, immediately prior to the time the oil licence was granted in 1921 under the MAA Act 1920 and the Mining Act 1904 Regulations, the native title holders were possessed of that array of native title rights and interests that would have entitled them, under the NTA as it currently operates, to a determination that they had exclusive possession native title over the whole of the claim area. Accordingly, their rights and interests then included that which is now asserted in the compensation claim, and articulated in the separate questions: the right “to control use of and access to the whole of the claim area”. (This is, in substance, the native title right that Ward found was totally extinguished by the grant of a pastoral lease.)

154    Whether or not that native title right has been extinguished by the grant of the oil licence requires identification of the nature of the rights granted by the oil licence.

155    In identifying the statutory rights granted, the starting point is the MAA Act 1920 and Mining Act 1904 Regulations. Section 6(1) of the MAA Act 1920 authorised the Minister, subject to the Act and the regulations, to “grant to any person who desires to prospect Crown land for mineral oil a licence to occupy the land described therein for a period of not exceeding 10 years …”.

156    While the State puts some emphasis on the words “to occupy”, I do not consider that the exercise of the power entrusted to the Minister resulted in an oil licence which conveyed exclusive possession over the 72,000 square miles of land the subject of the licence. It is not contended by the State or Commonwealth that it did.

157    Nothing in s 6 of the MAA Act 1920 granted the express right to the licensee to control use of or access to the whole of the subject land.

158    Rather, I consider that the expression “to occupy”, in s 6(1), must be read in context and in the light of other relevant provisions of the MAA Act 1920, particularly s 6(2), as signifying that a licensee will have the right to enter the land and to remain there while carrying out the activity described in the MAA Act 1920 and the oil licence.

159    In this regard, s 6(2) provides that every licence shall, subject to the Act and the regulations, “confer on the licensee the exclusive right to bore and search for mineral oil on the land therein defined” (emphasis added). This is the provision that more precisely identifies the nature of the licensee’s rights under the oil licence.

160    The particular statutory right granted therefore is the exclusive right to bore and search for mineral oil. Complementing and supporting that “exclusive right” is the right to “occupy” for that purpose. The statutory rights granted in those terms necessarily include the right of the licensee to enter the subject land for that purpose (and no doubt to bring with him others, and equipment, necessary to conduct the authorised activity).

161    Section 6(1) makes quite plain that the central right granted is the right “to prospect Crown land for mineral oil”. (As noted, “mineral oil” is defined in the MAA Act 1920.)

162    Some protection for the “exclusive” right of the licensee, however, was provided by s 8 of the MAA Act 1920 which, as noted above, provided that:

Any person who searches or attempts to search for mineral oil on land included in any license in contravention of the rights of the licensee, or who (without reasonable ground, proof whereof shall be upon him) hinders or interferes with any licensee in the exercise of his rights under the license, shall be guilty of an offence.

Penalty : Fifty pounds

163    Section 8 did not grant the licensee the right to control the use of or access to the subject area. Section 8 would, however, have facilitated a complaint by the licensee to a relevant authority that s 8 was being breached, in the event that any other person searched or attempted to search for mineral oil on the subject land or interfered with the licensee’s exercise of rights under the licence. A facility to complain about breach of s 8 is, however, incapable of being characterised as a right conferred on the licensee to control the use of or access to the subject area.

164    All of that simply goes to confirm that the rights actually conveyed to the licensee by the oil licence did not add up to “exclusive possession” rights, that is to say, the right to exclude all persons from the subject area of the licence. Plainly, other persons could enter and use the subject area, provided they did not infringe upon the “exclusive” right to prospect for mineral oil that the oil licence granted to the licensee.

165    The question remains, nonetheless, whether the rights conveyed to the licensee by the oil licence are inconsistent – that is to say, totally inconsistent – with the native title right to control the use of and access to the claim area that, up to the time of the grant of the oil licence, was held by the native title holders.

166    The claimants, as their submissions make plain, do not contend that the effect of the grant of the oil licence is that, following its grant, the native title holders possessed a “qualified” native title right to control the use of and access of persons, apart from the licensee, to the claim area. That is, the claimants do not contend that there is a partial extinguishment of the particular native title right to control the use of or access to the subject area, under which the native title holders continue to possess the right to control use and access of all persons other than the licensee. The claimants expressly did not seek to reargue the proposition rejected in Banjima: see Banjima at [1869], [1872].

167    What is argued is that there is simply no extinguishment of that particular native title right having regard, in effect, to the limited nature of the right granted to the licensee and the limited duration of the rights so conveyed.

168    The difficulty with that argument, however, as the State and the Commonwealth contend, is that it does not conform with the underlying rationale of the inconsistency of rights test laid down in Ward and confirmed in Brown, as discussed above.

169    The fact that a right granted pursuant to statute is for a limited purpose and of a limited nature is irrelevant. The question is whether a right granted, whether or not it is exercised, is in logical antinomy with the claimed native title right. As intimated, the answer appears to be that, yes, there is a total inconsistency and no room for the application of a mere regulation argument.

170    In arriving at this answer, it is important to recall that in Ward, the pastoral leases granted under statute were considered to have precisely the effect the claimants now seek to avoid. In the analysis at [170] and following of Ward, the pastoral leases were found to have the following features:

    The rights obtained under a pastoral lease were limited and were precarious because they could be forfeited in a number of circumstances (see [170]).

    The Minister had the reserved power to sell or otherwise dispose of not only any mineral land within the lease but also any other portion of the lease (see [171]).

    While the Land Act 1898 (WA) penalised unlawful or unauthorised use or occupation of Crown lands or lands reserved for or dedicated to any public purpose, land subject to pastoral lease formed part of the waste lands of the Crown; it was land vested in the Crown and not reserved for or dedicated to any public purpose (see [174]).

    Under various pieces of land legislation (for the most part) Aboriginal peoples had an access right (see [175]).

    Under the Land Act 1898 (WA) and the subsequent Land Act 1933 (WA) there was a penalty for trespass upon Crown lands (see [176]).

    The interests that a lessee would obtain under a pastoral lease were “very different” in many respects from the interests that a lessee would obtain under a lease for a term of years granted to the lessee by the freehold owner of the land (see [177]).

    On no view did a pastoral lease give the holder a right to exclusive possession. There were extensive reservations permitting entry not only on behalf of the Crown but also by others in many different circumstances and for many different purposes (see [178]).

    Amongst other things pointed out in Wik, the holder of a pastoral lease was entitled to use the land only for the limited purposes referred to as “pastoral purposes” (see [180]).

    Unlike the legislation considered in Wik, no provision was made in the Western Australia pastoral leases under consideration for the holder of a pastoral lease to bring action for removal of persons in “unlawful occupation” of the land the subject of the pastoral lease. There were, however, successive penal provisions prohibiting unlawful or unauthorised use or occupation of Crown lands (see [181]).

    Those penal provisions did not extinguish native title (see [182]).

171    The plurality, at [182] and [183], in answer to the question whether the grant of such a pastoral lease prohibited the continued use or occupation of that land in accordance with native title rights and interests by the holders of those rights, said that would be so only if a pastoral lease gave the holder the right, either absolutely, or contingently upon the taking of certain steps (enclosure, improvement or both), to exclude native title holders from the land. But the pastoral leases under consideration did not grant that right.

172    The plurality, at [192], however, in the course of applying s 12M of the State Validation Act, in relation to the conclusions they had reached, found:

    The grants of pastoral leases by the States were acts involving the grant of rights and interests inconsistent with so much of the native title rights and interests as stipulated for control of access to the land the subject of the grants.

    The pastoral leases were acts attributable to the State which denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question. That consequence flowed apart from the provisions of the State Validation Act.

173    As noted above, at [194] the plurality then concluded that, the right to control access apart, many other native title rights to use the land the subject of the pastoral leases “probably continued unaffected”. Examples were provided as set out above.

174    The plurality undertook a similar analysis in respect of 52 mining leases granted under the Mining Act 1978.

175    At [291], the plurality noted there were many examples of “the exercise by equity of its jurisdiction to enjoin interference with the enjoyment by the plaintiff of rights (not necessarily proprietary in nature) conferred upon it by or under statute”. Their Honours added that the rights conferred by s 85 of the Mining Act 1978, which, apart from others, authorised a lessee to “work and mine the land” and to “do all acts and things that are necessary to effectually carry out mining operations” would remain fixed for the duration of the grant, but the practical content and thus the scope for injunctive or other appropriate remedies would vary with the actual or intended activities of the grantee of the statutory rights. Their Honours also noted that the holder of a mining lease would be protected against interference by others with the enjoyment of the rights.

176    At [308], the plurality said the grant of exclusive possession for mining purposes, which was part of the statutory grant, was directed at “preventing others from carrying out mining and related activities on the relevant land”. Their Honours added that, “[a]lthough the lessee could prevent anyone else seeking to use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area”.

177    At [309], in relation to the native title right to control access to the land, however, their Honours concluded:

This right is inconsistent with the rights of access arising under the mining leases. If the native title right to control access existed immediately prior to the grants of the mining leases, then it was extinguished by those grants.

178    In my view, it is not possible to conclude, in light of the authority of Ward, confirmed by Brown, that the rights granted to the licensee by the oil licence to enter the subject area (the claim area) and conduct prospecting for mineral oil are, conceptually, any different from the grants of the pastoral leases and mining leases considered in Ward and to which reference has just been made.

179    The grant of the prospecting rights under the oil licence, as under those tenures considered in Ward, plainly did not create exclusive possession rights in the licensee. But at the very least it did extinguish the native title right to control the use of and access to the subject area.

180    How a mere right to prospect and not to mine or otherwise cause major disturbance to land, granted over such an enormous area of land, in such a remote part of Australia, can have such an extinguishing effect at law, may reasonably be asked. The submissions made on behalf of the claimants ask that very question. How can Parliament, by authorising the grant of such an oil licence, be taken to have intended that the right of the native title holders to control the use of and access to the claim area by persons other than the licensee under the oil licence, be confiscated for all time? The answer suggested by the claimants is that, in such circumstances, the Court should, in effect, infer that the grant of the oil licence having such characteristics was not intended to extinguish any native title and merely “regulated” the broad native title right to control use of and access to the claim area. No question of extinguishment of the native title right, partial or otherwise, the claimants contend, therefore arises.

181    The claimants in effect seek to side-step Ward and rely on Akiba to support their argument that the grant of the oil licence merely regulated, and did not extinguish, their native title right in question. The appeal to Akiba, however, does not, in the result, assist their argument. As the Commonwealth submits, the question in Akiba was whether the native title right that the primary judge (Finn J) determined to exist – “the right to access resources and to take for any purpose resources in the [claim area]” – had been relevantly extinguished (necessarily partially extinguished) by the State of Queensland’s commercial fishing legislation. In the Full Court of this Court on appeal (Commonwealth v Akiba (2012) 204 FCR 260; [2012] FCAFC 25), the majority (Keane CJ and Dowsett J, Mansfield J dissenting) held that the determined right should be qualified by the words, “[t]his right does not, however, extend to taking fish and other aquatic life for sale or trade”. In the High Court, it was found that the State legislation merely regulated and did not extinguish the determined native title right, and the determination of the primary judge was restored.

182    A number of observations in the joint judgments in Akiba are, with respect, helpful to understanding more about the identification and articulation of rights and interests for the purposes of the inconsistency of rights test and the associated legal theory of regulation. In some respects it may be said that the articulation of rights and interests in a determination, made under s 225 of the NTA, is an art. More particularly, there is a question whether rights and interests must be broken down to reflect particular activities and whether particular activities are to be further subdivided into subactivities, each of which reflects a particular right or interest. Are the rights and interests in the “bundle of rights” to be conceived as strong and long quivers, or are strong and long quivers to be splintered and broken into smaller pieces?

183    In the joint judgment of French CJ and Crennan J in the High Court, at [21], their Honours noted that Finn J said that the native title right he had found was a “right to access and take marine resources as such – a right not circumscribed by the use to be made of the resource taken”: see Akiba v Queensland (No 3) (2010) 204 FCR 1 at [847]; [2010] FCA 643.

184    It may be seen therefore that Finn J did not consider it appropriate, on the facts of the case before him, to break down the right to take marine resources into rights to take a variety of marine resources, respectively, and further break down the right into rights to take marine resources generally or particular marine resources for particular purposes. In that regard, many determinations of native title, often made by consent, under s 225 of the NTA in mainland Australia, describe a right to take resources by reference to particular types of resources (such as ochre) and use of the resource for a particular purpose (such as traditional usage).

185    Nonetheless, Finn J accepted that an activity carried on in exercise of a native title right might be treated as a distinct “incident” of the right for extinguishment purposes where the activity had a discrete and understood purpose. In that context, his Honour rejected the claimants’ submission that it was impermissible to subdivide the general right to take resources and at [847] said:

The distinction between engaging in an activity for commercial purposes or for non-commercial, private or other purposes is one commonly made. It was from the outset, and remains, a characteristic of the fisheries legislation considered in this matter. It is reflected in the differentiation of purposes in s 211 of the NT Act.

186    In the High Court, French CJ and Crennan J, at [21], observed that a broadly defined native title right such as the right “to take for any purpose resources in the native title areas” may be exercised for commercial or non-commercial purposes. Their Honours accepted that the purposes may well be “defined or diffuse”. One use may advance more than one purpose. But, their Honours said:

none of those propositions requires a sectioning of the native title right into lesser rights or ‘incidents’ defined by the various purposes for which it might be exercised. The lesser rights would be as numerous as the purposes that could be imagined. A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another. That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose [by reference to Grey, Elements of Land Law, (1987) at 633–634, their Honours in a footnote said that an analogous right at common law is the easement]. That is not this case. The right defined by [the primary judge] which, save for the extinguishment question, was not in dispute, was a right ‘to take for any purpose’ resources in the native title areas.

187    It appears, nonetheless, that it was assumed, for the purposes of the extinguishment argument advanced, that the determined right could in fact be seen to have particular incidents. It would appear that, at least in theory, depending on the proper analysis of the competing right – in this case the Queensland fisheries legislation – a particular incident of the broader resource use right might be extinguished. To that extent, there appears to have been acceptance of what was said, and emphasised above, in Ward at [82], namely, that “two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency” (emphasis added). In Akiba, before the primary judge, on appeal in the Full Federal Court and in the High Court, the contention of the State appears to have been that the Queensland fisheries legislation created rights that were inconsistent with the determined native title right to the extent that the native title right included the incident of permitting the holder to take fish and other aquatic life for sale or trade. Thus, the Full Court purported to qualify the determined right in that respect.

188    In the result, French CJ and Crennan J, at [24], concluded that neither logic nor construction in that case required a conclusion that the conditional prohibitions imposed by successive fisheries legislation in the claim area were directed to the existence of a common law native title right to access and take marine resources for commercial purposes. In any event, their Honours held nothing in the character of the conditional prohibition on taking fish for commercial purposes required that it be construed as extinguishing such a right.

189    At [29], their Honours said:

[t]he existence of the distinction between the exercise of a native title right for a particular purpose or in a particular way, and the subsistence of that right, is relevant to the construction of statutes said to effect the extinguishment of native title rights. Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed.

190    At [39], their Honours rejected the inconsistency submissions made by the Commonwealth and the State. Their Honours said:

The premise upon which they rest is the characterisation of the exercise, for a particular purpose, of a general native title right as the exercise of a lesser right defined by reference to that purpose. That characterisation is not a logical necessity. Nor is it necessary for coherence in the law. Its rejection is consistent with the maintenance of a proper distinction between proprietary or usufructuary rights and their exercise in particular ways or for particular purposes.

191    In a joint judgment, Hayne, Kiefel and Bell JJ came to a similar conclusion. At [59], their Honours accepted that the NTA postulates that there may be partial extinguishment of native title rights and interests. In that regard, their Honours also referred to what the plurality said in Ward to the effect that native title should not be seen as a “single set of rights” relating to land or waters that is analogous to fee simple.

192    At [60], their Honours then asked whether the identified rights or interests had been partially extinguished:

More particularly, did the enactment of laws which prohibited the unlicensed taking of fish or other aquatic life for commercial purposes partially extinguish the right to take resources for any purpose?

193    Their Honours, at [63], said that the central point made in the High Court decisions of Yanner v Eaton (1999) 201 CLR 351 and reflected in each of Wik, Fejo, The Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 and Ward is that “a statutory prohibition on taking resources from land or waters without a licence does not conclusively establish extinguishment of native title rights and interests” of the kind found to exist in that case.

194    Their Honours, at [66], said of the decision of the majority in the Full Federal Court, that it was wrong to single out the taking of resources for sale or trade as an “incident” of the right that had been identified. Their Honours said that:

The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.

195    Their Honours added, at [67], that focusing upon the activity described as “taking fish and other aquatic life for sale or trade”, rather than focusing upon the relevant native title right, was apt to, and in that case did, lead to error. That shift of focus, from right to activity, led to error, their Honours said, by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. Their Honours said that the relevant native title right, to the contrary, was the right to take resources for any purpose.

196    In the present case before me, the argument put on behalf of the claimants is that, by analogy with the analysis in Akiba, the grant of the oil licence – and the rights it conveyed – like the Queensland fishing legislation, merely effected regulatory control over the exercise of the native title right to control the use of and access to the claim area. The difficulty, however, is that the analogy is not apt.

197    In this case, the oil licence does not have the character of legislation, such as that in Akiba, which controls activities carried out by native title rights holders pursuant to their native title right. Rather, the licensee under the oil licence has the right to do certain things in the claim area which right plainly is inconsistent with the native title holders’ pre-existing right to control all outsiders. It is not apposite, in such circumstances, to speak of the oil licence as having a “regulatory” effect – except perhaps colloquially.

198    Ultimately, the Court is constrained from adopting any such broad concept of regulation in this case by the binding authority of Ward, confirmed in Brown, which laid down the inconsistency of rights test. Nothing in Akiba, or Congoo, affects the application of the inconsistency of rights test in the circumstances of the present case.

199    There is not, in my opinion, any acceptable way, consistent with authority, to distinguish the grant of the oil licence in this case from the grants of the pastoral leases and the mining leases considered in Ward, that conveyed limited (albeit different) rights to their holders to enter and use the claim area in that case and which were there held to extinguish (totally) the native title right in question in this case.

200    In those circumstances, the answer to the stated Question 2 is, yes, the grant of oil licence OPA 26H did extinguish any native title right to control the use of and access to the whole of the claim area.

Question three: If the answer to question 1 or 2 is no, did the grants of permits to explore pe 146h, pe 147h and pe 161h extinguish any native title right to control use of and access to the whole of the claim area?

201    In light of the answer to Question 2, it is not necessary to answer this question. If it had been, the answer to Question 3 would have been the same as to Question 2, for substantially the same reasons.

conclusion and orders

202    In these circumstances:

(1)    Question 1 is answered “yes”.

(2)    Question 2 is answered “yes”.

(3)    It is, in the circumstances, unnecessary to answer Question 3.

203    The claimants say in their written submissions that if the Court does find that one or more of the licence or permits to explore relied upon by the respondents did extinguish exclusive native title rights within the claim area, then the claimants accept that the remaining (non-exclusive) native title rights and interests were validly extinguished by the vesting of the Gibson Desert Nature Reserve. In such circumstances their entitlement to compensation would be an entitlement under s 45 of the NTA.

204    In these circumstances, and having regard to order 2 made 9 April 2015, referred to at [8] above, there will also be an order that the matter be listed for further directions with a view to the Court hearing from the parties as to the further disposition of the proceeding.

Associate:

Dated:    1 July 2015