FEDERAL COURT OF AUSTRALIA

Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169

ORDERS

THE COURT ORDERS THAT:

A. Schedule 1 – Scrub Leases

The separate questions at [82] of Schedule 1 concerning each of Scrub Lease No. 287 and Scrub Lease No. 416 are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

B. Schedule 2 – Settlement Leases

The separate questions at [141], [144], [147], [150] and [153] of Schedule 2 concerning each of the five Settlement Leases are answered as follows:

(i) Settlement Lease No. 1895/16 Coonamble

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – No.

(ii) Settlement Lease No. 1898/39 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i) insofar as that part of the land the subject of Settlement Lease No. 1898/39 Nyngan was converted to Conditional Lease No. 1927/15 Nyngan. No as to question (a)(ii).

Question (d) – Yes, insofar as that part of the land the subject of Settlement Lease No. 1898/39 Nyngan was converted to Conditional Lease No. 1927/15 Nyngan.

(iii) Settlement Lease No. 1911/2 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i) insofar as that part of the land the subject of Settlement Lease No. 1911/2 Nyngan was converted to Conditional Lease No. 1929/4 Nyngan. No as to question (a)(ii).

Question (d) – Yes, insofar as that part of the land the subject of Settlement Lease No. 1911/2 Nyngan was converted to Conditional Lease No. 1929/4 Nyngan.

(iv) Settlement Lease No. 1909/3 Coonamble

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – Yes as to question (a)(i). Yes as to question (a)(ii) because of the grant in 1936 of a lease in perpetuity.

Question (d) – Yes.

(v) Settlement Lease No. 1911/9 Nyngan

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – No.

C. Schedule 3 – Improvement Leases

The separate questions at [248], [251] and [254] of Schedule 3 concerning each of Improvement Lease No. 1161 Coonamble, Improvement Lease No. 581 Nyngan and Improvement Lease No. 958 Nyngan are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

D. Schedule 4 – Homestead Leases

The separate questions at [288] and [291] of Schedule 4 concerning each of Homestead Lease No. 1244 and Homestead Lease No. 1478 are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

E. Schedule 5 – 18th Section Leases

The separate questions at [336], [339], [342], [345] and [348] of Schedule 5 concerning each of 18th Section Lease No. 114 Nyngan, 18th Section Lease No. 146 Nyngan, 18th Section Lease No. 82, 18th Section Lease No. 15 Coonamble and 18th Section Lease No. 59 Walgett are answered as follows:

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No

Question (d) – Does not arise.

F. Schedule 6 – Western Lands Leases for a Term

The separate questions at [376] and [379] of Schedule 6 concerning each of the Western Lands Leases are answered as follows:

(i) Western Lands Lease No. 3469

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

(ii) Western Lands Lease No. 11935

Question (a)(i) – Yes, because the grant of the lease consisted of the grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth).

Question (a)(ii) – No.

Question (b) – Yes, following on from the answer to question (a)(i).

Question (c) – No.

Question (d) – Does not arise.

G. Schedule 7 – Special Leases for a Term

The separate questions at [449], [458], [466], [474], [482], [489], [498], [505] and [518] of Schedule 7 concerning each of the following nine Special Leases for a Term are answered as follows:

(i) Special Lease No. 1955/7 Warren

Question (a) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise.

(ii) Special Lease No. 1939/1 Warren

Question (a)(i) – No.

Question (a)(ii) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

(iii) Special Lease No. 1961/48 Warren

Question (a)(i) – Yes.

Question (a)(ii) – No.

Question (b) – Yes in respect of question (a)(i).

Question (c) – Does not arise.

Question (d) – Does not arise.

(iv) Special Lease No. 1958/2 Coonamble

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes in respect of both question (a)(i) and (ii).

Question (c) – Does not arise.

Question (d) – Does not arise.

(v) Special Lease No. 1924/16 Walgett

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes in respect of both question (a)(i) and (ii).

Question (c) – Does not arise.

Question (d) – Does not arise.

(vi) Special Lease No. 1952/6 Coonamble

Question (a) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise.

(vii) Special Lease No. 1964/1 Coonamble

Question (a) – No.

Question (b) – No.

Question (c) – Does not arise.

Question (d) – Does not arise.

(viii) Special Lease No. 1952/1 Warren

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

(ix) Special Lease No. 1957/42 Nyngan

Question (a)(i) – Yes.

Question (a)(ii) – Yes.

Question (b) – Yes.

Question (c) – Does not arise.

Question (d) – Does not arise.

H. Schedule 8 – Special Leases for Grazing

The separate questions at [656] and [659] of Schedule 8 concerning each of the two Special Leases for Grazing are answered as follows:

(i) Special Lease No. 1908/51 Coonamble

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

(ii) Special Lease No. 1957/6 Nyngan

Question (a) – No.

Question (b) – Does not arise.

Question (c) – No.

Question (d) – Does not arise.

I. Schedule 9 – Reservation

The separate question at [703] of Schedule 9 concerning the Canbelego Common is answered as follows:

Question (a) – No.

Question (b) – No.

Question (c) – No.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

INTRODUCTION

1    This proceeding concerns nine series of separate questions which arise for determination in the context of an application for the determination of native title under the Native Title Act 1993 (Cth) (NT Act). That application relates to a relatively large area of land, affecting 26,714 parcels of land, which is located in parts of New South Wales (which are referred to as the Central Division and the Western Division respectively). The claim is for both exclusive and/or non-exclusive possession.

2    The parties are in dispute in respect of relatively small parts of the claim area (approximately 1.2 percent of the total claim area and representing about 51 square kilometres at the time the original separate questions were formulated) as to whether any native title rights and interests have been wholly extinguished under either relevant provisions of the NT Act or at common law. Given the present stage of the native title claim, no determination has yet been made as to the nature and extent of any native title rights and interests in the claim area.

3    With one exception, the separate questions relate to various types of statutory leases relating to Crown land in the State. The exception, which is the subject of Sch 9, relates to a reservation relating to a temporary common. Various Aboriginal Land Councils, including the New South Wales Aboriginal Land Council, were additional active participants in respect of this particular matter.

4    The applicant in the proceeding is the applicant in the application for the native title determination under s 61 of the NT Act. The Attorney General of New South Wales is the primary respondent (the State).

5    As will emerge, the issues which arise for determination in respect of some of the leases are complicated by the fact that one or more extensions were granted to some of the leases and additional conditions were imposed, sometimes reflecting legislative or executive acts which occurred after the original or previous grant or dedication.

6    It is desirable to say something more about some procedural aspects of the proceeding.

Some procedural matters

7    On 28 March 2019, the Court made orders under rule 30.01 of the Federal Court Rules 2011 (Cth) for the hearing and determination of ten separate questions, which were reflected in Schs 1-10 to those orders. The parties were subsequently able to agree all of the subject matter of Sch 10, thus it no longer requires determination. The ambit of Sch 9 was substantially narrowed after the relevant parties reached agreement such that the questions requiring determination in respect of this particular Schedule relate to only one parcel of land. The parties were also able to reduce the number of parcels of land which required determination in some of the other Schedules.

8    As will shortly emerge, the parties provided detailed written contentions and submissions in respect of the remaining separate questions. In the applicant’s written submissions dated 29 May 2020, the applicant raised a question as to whether the State was seeking to raise matters which did not fall within the terms of the separate questions. The applicant claimed that the State was seeking to have the separate questions relate not only to the issue of extinguishment of native title under relevant provisions of the NT Act, but also at common law separately and apart from the operation of that legislation. (It may be noted that s 23B(9C) invites, where it applies, consideration of whether native title has been extinguished apart from under the NT Act). This matter was raised by the Court at the outset of the hearing. The parties agreed that they would work together to reformulate the present separate questions so that all relevant matters requiring determination were clearly covered by the terms of those questions. The parties came to an agreement as to the terms of the reformulated separate questions, which are reflected in the questions as described below.

9    Although the reformulated questions do not explicitly refer to extinguishment of any native title according to principles of common law and independently of the operation of any relevant provision of the NT Act, I understood that they were intended to reflect the parties’ agreement that this separate matter should also be determined so that the parties would have certainty. As the State pointed out in its written submissions in reply at [7], the question whether a lease has the effect of wholly extinguishing any native title in the leased area “necessarily requires the Court to consider whether the lease conferred rights and interests inconsistent with the native title rights and interests claimed”.

10    I have proceeded on the basis that determination of the separate questions requires consideration and determination of the issue whether any native title rights and interests have been extinguished by operation of common law principles. It should be interpolated, however, that neither the State nor the applicant gave much attention to extinguishment at common law. The central focus of the case was very much on the application of relevant principles arising from the NT Act itself.

11    On the first day of the hearing the applicant raised an additional and separate issue relating to the ambit of the separate questions as originally formulated. It relates to the fact that the State’s written submissions addressed an issue which the applicant said was not squarely raised by the terms of the separate questions as originally formulated, namely whether any legislative or executive act which occurred subsequent to the grant or vesting of the relevant lease or dedication meant that exclusive possession was subsequently granted and wholly extinguished native title rights. The parties subsequently provided revised reformulated separate questions which were made the subject of orders dated 18 August 2020.

12    The applicant maintained its primary position that, as a matter of law and having regard to the terms of s 23B(2)(c) of the NT Act and the reference therein to an act being a “previous exclusive possession act” (PEPA) if inter alia it consists of the grant or vesting of various specified matters, no consideration should be given to legislative or executive acts after the original grant or vesting of a lease. In the event that this primary position was not upheld, the applicant’s secondary position involved it responding to the State’s submissions regarding the legal effect of subsequent legislative and executive acts relied upon by the State as having the effect of wholly extinguishing any native title rights and interests.

13    I will explain in the consideration of Sch 2 why I reject the applicant’s primary position. In any event the issue is largely academic in the context of the present proceeding having regard to the parties’ ultimate acceptance that the Court was also required to consider extinguishment at common law.

14    As noted, the reformulated separate questions comprise nine separate schedules (Schs 1-9), each of which deals with the following particular kinds of land tenure:

    Sch 1 – Scrub Leases

    Sch 2 – Settlement Leases

    Sch 3 – Improvement Leases

    Sch 4 – Homestead Leases

    Sch 5 – 18th Section Leases

    Sch 6 – Western Lands Leases for a Term

    Sch 7 – Special Leases for a Term

    Sch 8 – Special Leases for Grazing

    Sch 9 – Reservations.

15    The Court is asked to determine a series of separate questions with reference to various identified parcels of land in respect of each of the relevant land tenures.

Some introductory observations

16    The NSW Crown lands legislation which is relevant to these proceedings is complex and has had many iterations. The complexity has been heightened by the numerous amendments which have been made to that legislation. The onerous task faced by the Court in answering the separate questions is further highlighted by the fact that the parties referred to, or relied upon, no less than 117 different pieces of State or Commonwealth primary legislation and no less than 62 pieces of secondary legislation in support of their respective positions.

17    I will seek to describe the history of the primary NSW Crown lands legislation before addressing each of the separate questions. I will also provide, by way of introduction, an overview of relevant case law.

18    Before doing so, however, it is desirable to outline in very general terms the nature of the separate questions for determination. Putting to one side for the moment the claims concerning extinguishment at common law, the issues of extinguishment by operation of the NT Act essentially relate to the following two matters. First, whether some of the land tenures (i.e. Settlement Leases and some of the Special Leases for a Term and some of the Western Lands Leases for a Term) constitute a “Scheduled interest” within s 23B(2)(c)(i) of the NT Act. Secondly, whether or not all the relevant land tenures conferred “a right of exclusive possession over particular land or waters” within s 23B(2)(c)(viii) of the NT Act. If the answer to either of those questions is yes, the Court is also asked to determine whether the effect of granting the relevant land tenure was to wholly extinguish all native title in relation to the land or waters covered by the tenure, in accordance with s 23E of the NT Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) (NSW NT Act).

19    As noted above, the Court is also asked to determine whether the relevant tenure was otherwise wholly inconsistent with the continued existence of native title rights and interests under the common law and independently of the NT Act or NSW NT Act (see Western Australia v Brown [2014] HCA 8; 253 CLR 507 (Brown High Court) at [31]).

(a) Some primary provisions of the NT Act

20    It is convenient at this point to set out some of the relevant primary provisions of the NT Act commencing with s 23B, which defines what is a PEPA and noting that there are two separate limbs to s 23B(2)(c):

23B    Previous exclusive possession act

(1)    This section defines previous exclusive possession act.

Grant of freehold estates or certain leases etc. on or before 23.12.1996

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

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

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

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

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

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

…

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

…

21    “Scheduled interest” is defined in s 249C of the NT Act. A “Scheduled interest” is anything set out in Sch 1 to the NT Act, other than a mining lease or anything whose grant or vesting is covered by certain specified exceptions in s 23B(9)-(10). That Schedule identifies numerous statutory leasehold interests which the Parliament considered to have conferred a right of exclusive possession and, accordingly, extinguished native title (see ss 23B(2) and 23C). Section 23E of the NT Act (which recognises that a State or Territory law may in the specified circumstances make provision to the same effect as s 23C regarding confirmation of extinguishment of native title by PEPAs attributable to the State or Territory) is set out at [42] below. Section 20(1) of the NSW NT Act (which is a provision as contemplated by s 23E of the NT Act) is set out at [43] below.

22    With a few exceptions, the parties were agreed that there was no dispute that the relevant land tenures were both valid (for the purposes of s 23B(2)(a)) and took place on or before 23 December 1996 (see s 23B(2)(b)) (which is the date the High Court published its decision in Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 (Wik)).

(b) An anachronism or artificiality presented by the separate questions

23    It is desirable at this early stage to highlight a central anachronism and related artificiality which is exposed by the terms of the separate questions. As has been highlighted, many of the relevant land tenures are of some antiquity. For example, some were granted under the Crown Lands Act 1889 (NSW) (CL Act 1889) and others were granted under the Crown Lands Consolidation Act 1913 (NSW) (CLC Act 1913). In determining whether the land tenures granted under either of those Acts involved a PEPA for the purposes of s 23B(2)(c)(viii) of the NT Act, it is necessary to determine whether there was an act which involved the grant or vesting of a lease which conferred a right of exclusive possession over particular land or waters.

24    The anachronism relates to the fact that, at the time all the relevant land tenures were granted, native title rights and interests were not recognised at common law. This did not occur until the High Court delivered its landmark decision in 1992 in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)). Necessarily therefore, both when the relevant legislation was enacted and the relevant land tenures were granted (or extended), common law native title rights and interests were not recognised. The task of now determining whether or not a particular act is a PEPA with the meaning of s 23B(2)(c)(viii) of the NT Act is therefore a somewhat artificial exercise in the sense that determining whether, for example, a particular lease is a PEPA because it conferred a “right of exclusive possession” over particular land or waters, falls to be determined by reference to times and events when native title rights and interests were not recognised at common law. This serves to highlight what Professor W E H (Bill) Stanner described in the Boyer Lectures in 1968 entitled “After the Dreaming” as the “great Australian silence”, namely the failure of Federal and State Governments over many years to acknowledge the traditional laws and customs of Aboriginal people.

25    This “artificiality” was touched upon by Gleeson CJ in Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [12]. There, the then Chief Justice said that, depending on the circumstances, “it may be unlikely in the extreme that either party to [a] lease paid any attention to the subject of native title”. His Honour made clear that the subjective intentions were not relevant in determining whether or not, for example, a grant of an estate in fee simple extinguished native title, because the issue had to be “objectively considered”. Justice Callinan addressed the issue of artificiality in even stronger terms in Anderson at [194] where he reiterated the views he had expressed in Western Australia v Ward [2002] HCA 28; 213 CLR 1:

… I would reject the notion that has unnecessarily complicated and, if unchecked, will continue to complicate the resolution of claims for native title: the imputation to the parties to pastoral and other leases of an entirely artificial intention, contrary to the known facts, that native title was or was not to subsist. ...

26    The artificiality of the task which presents itself for determination in the present proceeding is highlighted even further by the fact that questions arise for determination before any determination has been made as to whether or not the applicant holds any native title rights and interest in respect of the relevant land. As Toohey J observed in Wik at 103, this has the consequence of clothing questions for separate determination “with a certain unreality”. His Honour further observed at 131 that, by formulating questions for decision in advance of a trial, an attempt has been made to:

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

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

Summary of general principles concerning extinguishment of native title

28    The State accepted that it carried the evidentiary burden of proving the relevant extinguishing acts and any associated issue of whether a particular lease (or reservation/dedication) conferred exclusive possession. The State submitted, however, that the significance of the burden it carried diminished when it came to the question whether any legislative or executive actions had the effect of extinguishing any native title rights and interests because that was essentially a legal rather than an evidentiary question.

29    In general terms, the parties were also agreed as to the relevant general principles regarding extinguishment, both under Pt 2, Div 2B of the NT Act and also at common law. There was no dispute that the NT Act did not exhaustively identify each and every act which might extinguish native title. Section 23B(9C) expressly provides that, where it applies, consideration needs to be given to whether native title has been extinguished “apart from this Act”. Justice Bennett made the following observations in Brown v Western Australia (No 2) [2010] FCA 498 at [58]-[62], (which were adopted by Mansfield J in Brown v Western Australia [2012] FCAFC 154; 208 FCR 505 (Brown Full Court) at [24]):

The primary judge explained in detail the scope and operation of the NT Act and its interplay with the common law, and its relevance to the facts in the proceeding. I respectfully adopt those observations of her Honour in Brown No 2 at [58]-[62]:

Part 2 Division 2 of the Native Title Act 1993 (Cth) (the NTA) is concerned with the validation of past acts which, were it not for the NTA, would be invalid. Section 228 defines a “past act” as an act that took place before 1 January 1994 (or 1 July 1993 in the case of legislation) which is invalid, but would have been valid but for native title. Invalidity would have arisen by reason of the Racial Discrimination Act 1975 (Cth) (the RDA). Where an act took place before the commencement of the RDA on 31 October 1975, the act would not have been rendered invalid by reason of the RDA. Hence, it is not a “past act” under s 228 for which it is necessary to have regard to Pt 2 Div 2.

Pt 2 Div 2 of the NTA provides not only for the validation of past acts but also for the extinguishing effect of those acts. Some past acts extinguish native title (see also ss 229 to 232). Relevantly, Pt 2 Div 2B confirms the extinguishing effect of “previous exclusive possession acts” and “previous non-exclusive possession acts”, which are not confined to “past acts”. If Pt 2 Div 2B of the NTA applies to a particular act, the extinguishment regime of Pt 2 Div 2 is put aside and any overlap between the two extinguishment regimes is resolved in favour of Pt 2 Div 2B and its corresponding State and Territory provisions (State of Western Australia v Ward (2002) 213 CLR 1 at [10]). Accordingly, Pt 2 Div 2B provides the analytical starting point. If an act extinguishes native title under Pt 2 Div 2B, it is unnecessary for the Court otherwise to examine extinguishment under the NTA (ss 23C(3), 23G(3)).

Nonetheless, acts that do not fall within either category of “previous exclusive possession acts” and “previous non-exclusive possession acts” may still extinguish native title apart from the provisions of Pt 2 Div 2B. The NTA does not constitute a comprehensive code of extinguishment (see, for example s 23B(9C)(a)) and an act to which Pt 2 Divs 2, 2A or 2B of the NTA do not apply may still have been effective to extinguish native title under the common law.

Where the act is the act of the State of Western Australia and a “previous exclusive possession act” within s 23B of the NTA, it only extinguishes native title if it is also a “relevant act” under s 12I of the TVA [Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)], which is, relevantly, a freehold grant whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996.

The question of extinguishment is not wholly determined by the characterisation of the relevant grant as conferring exclusive possession. As the applicants point out, the NTA recognises “previous exclusive possession acts” (s 23B) and “previous non-exclusive possession acts” (s 23F). The former wholly extinguish native title (s 23C), the latter generally partially extinguish native title (s 23G). What is described as a “lease” under the NTA may or may not confer a right of exclusive possession (Wilson v Anderson (2002) 213 CLR 401 at [59] per Gaudron, Gummow and Hayne JJ). Pt 2 Div 2B of the NTA expressly declines to provide for extinguishment, under that division, of native title by the grant of a mining lease, whether or not it confers a right of exclusive possession over land (ss 23B(2)(c)(viii), 249C(1)(a)). Further, certain Scheduled interests extinguish native title, without regard to whether, as drafted, they confer exclusive tenure.

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

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

32    This fundamental point is well illustrated by Anderson. As is the case here, the proceedings there involved the determination of separate questions prior to the determination of the existence or contents of any native title rights and interests in the subject land. Expressed in very general terms, the primary issue was whether a “lease in perpetuity” granted by the Crown under s 23 of the Western Lands Act 1901 (NSW) conferred on the lessee a right of exclusive possession of the leased land and whether any native title rights were wholly extinguished by the grant of such a lease. Other issues arose concerning the appropriateness of the separate questions and how they should be answered but it is unnecessary to say anything further about that aspect of the case.

33    For present purposes, it is sufficient to focus on the joint reasons of Gaudron, Gummow and Hayne JJ in Anderson and the approach their Honours adopted in concluding that the grant of a “lease in perpetuity” conferred on the lessee “the essence of a freehold” and that the conditions and obligations attached to the grant were not inconsistent with the incidents of a grant of a determinable fee simple.

34    Their Honours traced the history of the Western Lands Act 1901 and associated legislation at [64]-[108]. This highlights the need in some cases to pay close attention to the history of particular legislation in determining whether or not particular land tenures created by such legislation had the effect of wholly extinguishing native title rights and interests. Their Honours also referred to various leading academic writings on the nature and character of perpetual leases as opposed to a determinable fee simple. This detailed analysis, coupled with a close examination of the relevant conditions and obligations imposed by the particular lease in perpetuity provided the basis for their Honours’ ultimate conclusions at [109]-[119], which it is desirable to reproduce despite their length (footnotes omitted):

109    The interest conferred under s 23(1)(a) of the Western Lands Act and identified as a “lease in perpetuity” was a creature of statute forming part of the special regime governing Crown land. That regime included the various tenures provided for in the Consolidation Act, some of which also were identified as a “lease in perpetuity”. Legislation establishing these perpetual tenures in New South Wales predated the introduction of the “lease in perpetuity” into the Western Lands Act by the 1932 Act and the 1934 Act.

110    The evident purpose of the introduction to the Western Lands Act of the perpetual tenure already established in other respects in the Consolidation Act was to strengthen the position of settlers in the Western District, particularly by giving them an asset more likely to attract the provision and continuation of finance. The character of the lease in perpetuity derived from that of the tenures established by the earlier legislation in New South Wales.

111    There had been a history in colonial New South Wales of Crown grants of freehold for which no purchase price was paid but with the reservation to the Crown of annual quit‑rents. Conditions also were imposed, upon pain of cancellation or revocation of the grant and determination of the fee simple. These conditions included requirements of residence and improvement of the land. By the time of the development in New South Wales of the legislative system of Crown land tenures in the second half of the 19th century, there was developing the popular perception of freehold as a tenure without risk of forfeiture for breach of tenurial incidents, a perception of which legislators would have been conscious. Yet it was in the interests of the Crown to achieve the economic and social goals of land settlement with the assistance of the controls imposed by conditional grants.

112    The legislative solution began with the “perpetual” obligations imposed upon the holders of homestead grants by the 1895 Act. As Sir Joseph Carruthers later was proud to declare, the inspiration for this legislation lay in the old common law notions of tenurial incidents. The legislative regime was developed with the appearance, in the 1912 Act, of the “lease in perpetuity”. By this means there was created a tenure which, like freehold tenure, was to last “for ever” but the term “lease” indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents imposed to further the objectives of the legislature with respect to land development.

113    The number and scope of those incidents developed as time passed. The Lease contains a number. Reference already has been made to the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Further, the lessee was obliged by cl 14 not to transfer, convey, assign, sub‑let or mortgage the Leased Land without the written consent of the Minister; cl 20 provided that the Lease was not to be transferable except by way of mortgage for 10 years following its commencement, save to certain members of the armed forces.

114    The Lease stipulated an “unrestricted” right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sched A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. The Lease was also expressed (cl 23(d)) to be subject to the withdrawal of land for any public purpose mentioned in the Consolidation Act. A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the Leased Land to examine improvements (cl 12) and to search for and remove minerals (cl 16). The lessee also was obliged to permit authorised persons to enter for purposes connected with soil conservation and erosion mitigation (cl 22).

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

116    However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, “all the advantages and essence of a freehold”. Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.

117    The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik. The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple.

118    The restraints upon alienation which applied to the Leased Land and the requirement to allow entry by certain persons for particular purposes and the other restrictions which we have described were consistent with the attachment of conditions to what in substance was a freehold. Their existence did not deny what otherwise was involved in the comprehensive statutory grant of a “lease in perpetuity”, including the right to exclusive possession.

119    It has been pointed out earlier in these reasons that it is unnecessary to determine whether the “lease in perpetuity” under the Western Lands Act is a “freehold estate” for the purposes of the NTA. The grant here was of a “lease” within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee “the essence of a freehold”, including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B(2)(c) of the NTA. Section 20 of the State Act then mandates extinguishment of any native title, with effect from the grant of the Lease.

35    The approach of Gaudron, Gummow and Hayne JJ in Anderson provides important guidance for the present proceeding. It highlights how each case needs to be determined not simply by reference to whether or not there are common features with land tenures in other decided cases, but rather by a careful examination of all the relevant conditions and obligations associated with a particular land tenure, as well as the relevant features of related legislation. In Anderson, the lengthy history of legislation associated with the development of “leases in perpetuity” was also important in their Honours’ analysis and ultimate conclusions. The history relating to leases was also prominent in Wik, as is reflected in Toohey J’s helpful historical survey at 108 ff of pastoral leases in Queensland (primarily) (see [37] below). That historical survey provides helpful guidance to some of the leases in the present proceeding but that is not to say that every relevant land tenure here has such a rich legislative history.

36    The applicant emphasised the significance of the principle that the exercise of power (either legislative or executive) to extinguish native title must reveal a clear and plain intention to do so (see Mabo (No 2) at 110-111 per Deane and Gaudron JJ, at 138 per Dawson J and at 192-193 per Toohey J). The application of that principle of construction to many of the relevant legislative and executive actions in the present proceeding is not without inherent difficulty having regard to the anachronism and artificiality referred to at [24] ff above. As Brennan CJ stated in Wik at 85, a legislative or executive act which creates rights in third parties which are inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, “irrespective of the intention of legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title” (to similar effect, see Ward at [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and Anderson at [4] and [7] per Gleeson CJ).

37    Helpful guidance was provided by Toohey J in Wik concerning the approach to be taken in considering and determining whether or not pastoral leases (in that case) extinguished native title rights. His Honour’s observations, although pre-dating the 1998 amendments to the NT Act, are also relevant to the task at hand in the present proceeding. At 108, his Honour said:

At the heart of the argument in the present case –- that the grant of each pastoral lease extinguished native title rights –- is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights.

Expressed with that generality, the proposition tends to conceal the nuances that are involved. The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in a grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This second step has within it two elements. The first looks at inconsistency, that is, whether and to what extent native title rights are inconsistent with the exclusive possession which the grant of a pastoral lease is said to carry. The second asks whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease. Because of the answers I propose to the questions asked, this second element does not arise for consideration.

38    Justice Toohey’s judgment in Wik provides further helpful assistance in answering the separate questions in the present proceeding with reference to what his Honour said about the notion of “co-existence” of native title rights and interests and other rights and interests created by legislative or administrative schemes relating to land tenures. As his Honour explained at 126, after referring to Canadian case law, there is an (emphasis added):

… emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished. If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned.

(a) The 1998 amendments to the NT Act

39    With those introductory observations in mind, I shall now summarise some relevant general principles regarding “previous exclusive possession acts” and “previous non-exclusive possession acts”.

40    Part 2, Div 2B of the NT Act was introduced in 1998 in response to, and substantially on the basis of, the High Court’s decision in Wik. The primary features of Div 2B were explained in Ward at [8]-[10], [41]-[45] and [135]-[140] and also in Anderson at [44]-[61].

41    In brief, Div 2B characterises certain acts as “previous exclusive possession acts” (see s 23B). A PEPA extinguishes all native title in relation to land or waters covered by the relevant act (see s 23C). The term “extinguish” is defined in s 237A of the NT Act as follows:

237A    Extinguish

The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

42    Under s 23E, States and Territories are empowered to legislate so as to replicate the effect of s 23C in respect of PEPAs which are attributable to the State or Territory, as opposed to the Commonwealth. It provides:

23E    Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

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

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

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

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

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

…

44    For an act to be a PEPA, the act must be “valid” and have occurred on or prior to 23 December 1996 (see s 23B(2)(a) and (b) respectively) of the NT Act. The issue of validity arises in respect of only a few of the acts which are the subject of the separate questions in the present proceedings.

45    A third and significant requirement for an act to be a PEPA is that it consists of the grant or vesting of an interest which falls within any of eight specified categories set out in s 23B(2)(c). Only two of those eight specified categories are relevant here. The first, which is the subject of s 23B(2)(c)(i), is whether the lease is a “Scheduled interest” as defined in s 249C of the NT Act (which relevantly includes anything set out in Sch 1 of the NT Act, other than a mining lease and certain specified exceptions in s 23B(9)-(10)). The question whether or not a lease is a “Scheduled interest” arises under Schs 2, 6 and 7 of the separate questions, which involve Settlement Leases, Western Lands Leases for a Term and Special Leases for a Term respectively.

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

47    There is no dispute that the rights conveyed by the grant of a freehold or fee simple interest are wholly inconsistent with the existence of native title and wholly extinguish such rights at common law (see Mabo at 68-70 per Brennan J and at 89-90 per Deane and Gaudron JJ).

(b) Leases and the extinguishment of native title

48    It is desirable to say something more generally about leases which have the effect of wholly extinguishing native title. As noted, a lease which confers a right of exclusive possession has that effect. At common law, that is because a right of exclusive possession conferred on a lessee is inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests.

49    Native title is also wholly extinguished where a lease confers a right of exclusive possession, by operation of s 23B(2)(c)(viii) of the NT Act. As Brennan CJ stated in Wik at 84-85 and prior to the 1998 amendments to the NT Act (footnotes omitted):

…. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”. Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. In reference to grants of interests in land by the Governor in Council, I said in Mabo [No 2]:

“A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title.”

Third party rights inconsistent with native title can be created by or with the authority of the legislature in exercise of legislative power but, as the power of State and Territory legislatures is now confined by the Racial Discrimination Act 1975 (Cth), a State or Territory law made or executive act done since that Act came into force cannot effect an extinguishment of native title if the law or executive act would not affect the extinguishment of a title acquired otherwise than as native title.

50    Whether or not a lease confers a right of exclusive possession is a matter which is to be “objectively considered” (see Gleeson CJ in Anderson at [12]).

51    The following general principles are established by Ward:

(1)    Whether or not the grant of a tenure to a third party has the effect of wholly extinguishing native title requires identification of, and comparison between, the claimed native title rights and interests and the legal nature and incidents of the grant to the third party. Subjective intentions are not relevant but are to be determined by an objective inquiry (at [78] and [468]).

(2)    The relevant inquiry focuses on inconsistency of rights and not inconsistency of use or exercise of rights – while also acknowledging that use of land may suggest or demonstrate the creation of rights (at [215] and [234]).

(3)    Evidence of how land has been used may be relevant to the extent that it focusses attention upon the right pursuant to which the land is used (at [78]).

(4)    The object of the inquiry is to identify whether there is any inconsistency between two sets of rights, being rights derived from traditional laws and customs, and rights deriving from the exercise of sovereign authority (at [82] and [177]).

(5)    In Ward, the rights obtained under a pastoral lease granted under the Land Act 1933 (WA) (which repealed the Land Act 1898 (WA)) were viewed as being limited and not extinguishing native title rights and interests having regard to the following matters (at [170]-[176]):

(a)    the pastoral lease did not grant to the lessee a right to the soil and the lessee’s right to take timber was limited to such timber as may be required for domestic purposes or the constructions of improvements, such as buildings, fences and stockyards on the land;

(b)    the lessee’s interest was “precarious” because it could be forfeited for non-payment of rent or for non-compliance with terms and conditions and the land could then be reserved, sold or otherwise disposed of under relevant State legislation;

(c)    by s 107 of the Land Act 1898 (WA) the Minister had extensive rights over pastoral leasehold land, including the right to make roads, cut timber and to quarry, as well as to access the land for depasturing horses and cattle and there was a right for any person to pass over the land (if unenclosed or if enclosed but otherwise unimproved) on “all necessary occasions”;

(d)    pastoral leases could be transferred with the Minister’s consent or could be mortgaged, but the lessee had no pre-emptive right to buy the land;

(e)    although the form of pastoral lease used language found in a lease between private parties, this was not determinative, particularly where the language used applied not only to a lease but also to a licence; and

(f)    consideration was also given to various other relevant provisions in State legislation and the Court emphasised at [173] that the significance of any particular provision “must be judged against the whole of the legislative scheme”.

52    It is well to set out [177]-[185] of Ward which contains the essence of the plurality’s reasons why a pastoral lease granted under the Land Act 1933 did not extinguish native title (footnotes omitted, emphasis in original):

177.    What emerges from this recitation of statutory provisions is that the interest in land which was obtained by the holder of a pastoral lease under the Land Act 1898 or earlier Land Regulations was very different, in many respects, from the interest that a lessee would obtain under a lease for a term of years granted to the lessee by the freehold owner of the land. The differences between a pastoral lease and some archetypal form of “ordinary” or “typical” lease of land are, however, of importance to the present inquiry only to the extent that they assist in considering the question of extinguishment of native title. For the reasons given earlier, that inquiry requires attention to whether the rights given under a pastoral lease are inconsistent with the native title rights and interests which are asserted. As Toohey J said in Wik, at the heart of the argument in that case, and in the present – “that the grant of each pastoral lease extinguished native title rights – is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights”. But as Toohey J went on to point out, “[e]xpressed with that generality, the proposition tends to conceal the nuances that are involved”.

178.    On no view did a pastoral lease granted under the provisions examined so far, give the holder a right to exclusive possession of the land. 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. It is enough to notice the widest of these, reserving a right to any person “to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another, with or without horses, stock, teams, or other conveyances, on all necessary occasions”.

179.    Of most immediate relevance, for present purposes, is the reservation in each pastoral lease which was issued under the Land Act 1898 or previous Land Regulations and s 106(2) of the Land Act 1933 which applied to pastoral leases issued after 1934. The majority of the Full Court concluded that when that reservation ceased to apply (upon the land being, as the case required, enclosed, improved or both enclosed and improved) native title to that land was wholly extinguished. That conclusion depends upon the premise that, but for the reservation, the holder of a pastoral lease had the right to exclude Aboriginal people from the land.

180.    As was pointed out in Wik, the fact that both the instrument by which a pastoral lease was granted and the legislative instrument pursuant to which it was granted used language that might be used in or in relation to a lease between private individuals does not conclusively demonstrate that the holder of a pastoral lease was granted a right to exclusive possession of the land. Putting aside, for the moment, the provision about Aboriginal access, the following features may be noticed about the pastoral leases with which we are concerned in this matter:

(a)    Pastoral leases are a creature of statute or regulation, not the common law.

(b)    Pastoral leases were but one of several forms of interest in land for which provision was made by the Acts and Land Regulations, and not all of those interests find close analogy with interests that could be created at common law.

(c)    Although the Acts and Land Regulations provided for both leases and licences as different kinds of interest, various provisions of the Acts and Land Regulations treated leases and licences without distinction as, for example, in provisions dealing with their transfer, their forfeiture and the periodic payment to be made under each as “rent”.

(d)    The holder of a pastoral lease was entitled to use the land only for the limited purposes referred to as “pastoral purposes” and the holder obtained no right to the soil or the timber except to the extent required for certain limited purposes.

(e)    As has been noted earlier, the interest obtained under a pastoral lease was precarious.

181.    Unlike the legislation considered in Wik, no provision was made 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 the successive penal provisions prohibiting unlawful or unauthorised use or occupation of Crown lands.

182.    It was not, nor could it be, submitted that these penal provisions should be understood as working an extinguishment of native title. The provisions were generally applicable to all Crown land, that is, to all waste lands of the Crown, and are not to be understood “as intended to apply in a way which will extinguish or diminish rights under common law native title”. That is to say, the penal provisions which operated in respect of persons found in the “unlawful or unauthorised use or occupation” of Crown lands did not extend to persons exercising native title rights and interests. The exercise of native title rights and interests did not constitute an unlawful or unauthorised use or occupation of the land. Did the grant of a pastoral lease over Crown land prohibit the continued use or occupation of that land, in accordance with native title rights and interests, by the holders of those rights? Did it make use or occupation of the land by those persons for those purposes “unlawful or unauthorised”?

183.    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. Pastoral leases granted under the statutes and Land Regulations in issue in these matters did not grant that right. There are several reasons why that is so.

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

185.    The reservation or statutory provision in favour of Aboriginal people requires no different conclusion. Neither the reservation nor the later statutory provision is to be read as confining the circumstances in which access to the land by native title holders was to be permitted to the purpose of seeking subsistence in the accustomed manner and prohibiting access in all other circumstances. Nor is either to be read as suggesting that, despite the great generality of the other reservations in the pastoral lease, and the limitations on the purposes to which the land may be put, the holder was granted a right, in all other circumstances, to exclude not only other citizens but also the grantor of the interest.

53    Ward also establishes some important general principles regarding the effect of reservation of land and whether that extinguishes native title rights and interests. I will defer consideration of those principles to Sch 9.

54    In Wik, Gummow J described the content of the expression “exclusive possession” at 194-195 (footnotes omitted):

... at common law the term “exclusive possession” is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises. “Exclusive possession” serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord. As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee.

55    In Brown High Court, the plurality (French CJ, Hayne, Kiefel, Gageler and Keane JJ) at [33]-[35] emphasised that, in addressing the issue of inconsistency of rights and extinguishment at common law, a comparison is made between the rights and interests at the time of, and by reference to, the actual grant of those rights and not by the potential exercise of the rights and/or interests granted. Their Honours then explained at [36]-[38] (footnotes omitted):

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

Determining inconsistency

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

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

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

57    In Brown High Court, the plurality concluded that the mineral leases in issue in that case did not give the mining joint venturers a right of exclusive possession. Their Honours said at [57]:

… In this respect, the mineral leases were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward. The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land. (No party submitted that any distinction should be drawn between the several native title rights and interests that were claimed.) That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases. On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests.

58    The importance of paying close attention to the rights conferred by the instrument which are said to be inconsistent with native title rights and interests is emphasised by the plurality in Brown High Court at [63], where the Court responded to the State’s argument that the mineral leases in that case gave the mining joint venturers the right to mine anywhere on the land and the right to build improvements anywhere on the land. Their Honours rejected that this was determinative:

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

59    Even if the grant of a right does not in its original terms extinguish native title rights and interests, a subsequent modification of those rights during the term of the grant may do so, such as where amending legislation comes into force during the term of the grant. Under s 226 of the NT Act, an “act” is defined to include the making, amendment or repeal of legislation and the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument (see the discussion in Ward at [265]-[267]).

(c) Some general observations

60    As was the case in both Wik and Ward, in the present proceeding no determination has yet been made as to the content of the native title rights and interests which are the subject of the application for a native title determination under s 61 filed on 14 March 2012. The claimed native title rights and interests are described in Sch E to that application.

61    Cases such as Wik and Ward demonstrate that, in determining the question of inconsistency, it is sufficient to focus on the native title rights and interests which are claimed in a particular application for determination of native title (see also Brown High Court at [55]). Relevantly, the claimed native title rights and interests in the present proceeding include a claim of exclusive possession (so far as possible) and, where exclusive possession cannot be recognised, various rights such as the right to hunt, fish, gather and use natural resources, the right to protect the land and use and enjoyment of the claim area.

62    It is uncontroversial that native title rights and interests may be exclusive or non-exclusive rights. Examples of non-exclusive rights are rights to access and camp on land, to take flora, fauna, fish, water and other traditional resources other than minerals from the land, to engage in traditions and ceremony on the land and to care for, maintain and protect from physical harm particular sights and areas of significance to the native title holders (see Brown High Court at [2]).

63    Finally, it is important to emphasise at the outset the danger of over-simplifying the task of determining the separate questions. The danger of “cherry-picking” has already been mentioned. There is a similar danger of over-emphasising the significance of nomenclature or terminology, including the use of terms such as “lease” or “demise” (see Brown High Court at [43] and Wik at 117 per Toohey J). For example, merely because the present proceedings relate in part to land tenures which are described as “pastoral leases” and “special leases”, does not mean that the questions for determination are resolved by the fact that leases with similar names have been addressed in other cases, such as in Wik and Ward. Such an approach would be naïve because it would pay insufficient attention to the particular legislation under which such leases are granted, noting that there are some significant variations in legislation on that subject matter among State jurisdictions.

64    A related point is that the resolution of the kinds of questions which arise for determination in the present proceeding is not achieved by resorting to and applying pity slogans or aphorisms. Such slogans or aphorisms disguise the nuances and complexities of the task. The point is well illustrated by the statement by the High Court in Brown High Court at [36] where, in reiterating what was said in Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [47], the Court stated 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’” (and see Brown High Court at [46]).

65    As will emerge, the applicant placed particular emphasis on that statement in contending that the grant of a right to “exclude any and everyone from access to the land” for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land, but also of any right which depends upon access to the land. Viewed in isolation that contention is hardly uncontroversial. The difficulty with it, however, is that it provides only limited assistance in determining whether or not exclusive possession is conferred by any particular grant of a statutory lease or reservation of land. The limitations which are inherent in the statement is reflected in the fact that even the holder of freehold land has no absolute and unqualified right to exclude any and everyone from access to their land for any reason or no reason having regard to the range of statutory rights of entry conferred upon authorised third parties. As Callinan J stated in Ward at [694] “[e]xclusive possession, as it may once have existed, is, in practice, now non-existent or almost completely so, and has been for a long time”. That is because local authorities, public utilities and various governmental officials are authorised by various primary and secondary legislation to enter upon privately held land, including land held in fee simple, for many purposes.

66    The decided cases demonstrate that the issue is invariably not so simple. Any particular case will require a close examination of the range of rights which are conferred upon a lessee with a view to determining whether those rights gave the lessee exclusive possession of the land and are inconsistent with the existence or enjoyment of native title rights. That is not to say, however, that a right of exclusive possession would not be established if there was an express provision in a lease which had the effect of empowering the lessee to exclude any and everyone from access to the leased land, for any reason or no reason. In general, however, the issue is unlikely to be so simple. An evaluative exercise will normally be required which involves a weighing of competing considerations.

67    These points are well illustrated by the questions raised for determination in the present proceeding. As will emerge, the resolution of those questions requires careful consideration of what might aptly be described as an “impenetrable jungle of legislation”. The task is formidable and demanding, both for the parties and the Court. It is unsurprising that others have questioned the efficacy of resolving disputed native title matters by what often turns out to be protracted and expensive legal proceedings, as has occurred here. The following observations of Kirby J in Anderson at [126] resonate loudly (footnotes omitted):

… It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland [No 2], or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s indigenous peoples in relation to native title to land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed.

(To similar effect, see Ward at [561] per McHugh J who aptly decried the “costly and time-consuming” system for determining native title claims).

The parties’ primary submissions outlined

68    The parties filed very detailed written submissions in support of their respective positions. Those submissions were supplemented by oral submissions. The State’s submissions in chief, as filed on 15 November 2019, totalled 213 pages and were accompanied by attachments which added an additional 143 pages. These written submissions were in addition to a document entitled “Amended Contentions on behalf of the State of New South Wales” in respect of each schedule, which totalled approximately 172 pages. (It might be noted, however, that one effect of the reformulated separate questions was to make it unnecessary for the Court to address all those voluminous written materials).

69    The applicant’s submissions dated 29 May 2020 totalled 133 pages. The respondent Aboriginal Land Councils’ submissions were less than 10 pages.

70    Without attempting at this stage to summarise all the submissions by the parties, it is convenient to summarise their primary submissions by way of overview.

(a) The State’s primary submissions outlined

71    In brief, the State contends that each of the statutory leases which are identified in Schs 1-8 wholly extinguished native title in relation to the lands and waters covered by the relevant lease because, having regard to the legislative scheme and the terms of each lease, those leases were true common law leases and conferred on the lessee a right of exclusive possession or otherwise conferred rights which are inconsistent with native title rights and interests (as mentioned, the issue of whether a particular lease is a “Scheduled interest” also arises in respect of various leases in several Schedules).

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

73    Secondly, in the case of Scrub Leases, Settlement Leases, Improvement Leases, Homestead Leases, 18th Section Leases, Western Lands Leases for a Term and Special Leases for a Term, the State submitted that the intention was that the lessee would hold a true lease in the traditional common law sense because this was reflected in the purpose for which the lease either was, or could be, granted. In each such case, an important purpose for the grant was the facilitation of an intensive use and working of the land over long periods and in an enduring manner. The State submitted that this necessarily implied the grant of exclusive possession, or at least reinforced the proposition that such a right was conferred because, without exclusive possession, the purpose of the leases could not be realised either at all or not without great difficulty and conflict.

74    Thirdly, the State submitted that the rights conferred on each of the statutory lessees revealed several indicia which supported the conclusion that each of them conferred a right of exclusive possession or, alternatively, rights and interests which were inconsistent with the continued existence of native title rights and interests. Those indicia were said to include the following:

(a)    the lessee had a right to bring an action in trespass or to remove persons present on their land without consent or specific statutory authority;

(b)    concomitantly, the lessee was required to erect fencing around the boundary of the land which necessarily reflected an implicit recognition of the lessee’s right to exclude or remove strangers from the land;

(c)    the lessee’s interest could be transferred to a third party, albeit with ministerial consent; and

(d)    with all these leases, there were provisions for land to be withdrawn for public purposes or provisions authorising entry by public officials for specified persons and provisions which precluded the lessee from interfering with the use of identified reserves, roads or tracks within the land. The State submitted that these kinds of provisions provided implicit confirmation that a right of exclusive possession was otherwise conferred upon the grantee in the sense that, absent such statutory provisions or conditions, the lessee could exclude third parties.

75    Fourthly, the State relied upon case law in support of the proposition that at least some of the types of leases under consideration in the present proceeding were true leases in the common law sense.

76    Fifthly, in respect of Sch 9, the State submitted that the reservation of land for use as a temporary common and the creation of powers and rights in that land is inconsistent with the continuation of any native title rights and interests.

77    Finally, the State accepted that it carried the evidentiary burden of proving the extinguishing acts and the rights or powers exercisable. It also made submissions as to the relevant general principles relating to the extinguishment of native title rights and interests, with particular reference to relevant provisions of the NT Act and the NSW NT Act and relevant case law.

(b) The applicant’s primary submissions outlined

78    The applicant emphasised the State’s evidentiary burden and the presumption against extinguishment. The applicant also made detailed submissions on relevant case law, including Wik, Ward, Anderson, Akiba v Commonwealth [2013] HCA 33; 250 CLR 209; Brown High Court and Queensland v Congoo [2015] HCA 17; 256 CLR 239. It drew attention to the following passage from Toohey J’s judgment in Wik at 122 where his Honour explained why the pastoral lease in that case did not confer rights to exclusive possession and did not wholly extinguish native title:

A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee’s right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No.2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time.

79    The applicant’s submissions also included detailed contentions as to why inter alia it said that none of the relevant leases the subject of Schs 2, 6 and 7 are Scheduled interests for the purpose of s 249C of the NT Act, as well as detailed submissions as to why the leases in those Schedules were not common law leases and did not confer a right of exclusive possession, nor confer any other rights which were inconsistent with native title rights and interests.

(c) Aboriginal Land Councils’ primary submissions outlined

80    It is desirable to outline those parts of the submissions which relate to the single parcel of land the subject of Sch 9, relating to the reservation of Lot 7301, DP 1170536 (ID Area 1584) (Canbelego Common). Contrary to the State’s submission that an interest in fee simple was vested in the trustees of the Canbelego Common on commencement of s 14 of the Commons Management Act 1989 (NSW), the Aboriginal Land Council respondents relied upon Craig J’s analysis of the effect of s 14 in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58. Justice Craig held there at [18]-[53] that the effect of s 14 was not to create a fee simple interest at large but merely deemed the existence of a fee simple interest for limited purposes. The upshot was that s 14 was viewed as having the same effect as s 37X of the CLC Act 1913 (NSW) and s 100(1) of the Crown Lands Act 1989 (NSW).

Conclusion

81    With these general observations in mind, and applying the legal principles I have summarised above, I will now address and answer the questions raised in each of the nine schedules. To avoid unnecessary duplication, I will not constantly repeat those legal principles but they provide an essential part of my reasons below.

SCHEDULE 1 – SCRUB LEASES

(a) Questions for determination

82    The Court is asked to determine the following questions in relation to two Scrub Leases (Scrub Lease No. 287 granted over Lot 49, DP 752119 and Scrub Lease No. 416 granted over Lot 14, DP 752101; Lot 15, DP 752101 and Lot 36, DP 752120):

(a)    On the basis of the agreed facts and the other matters set out therein and below, and such other evidence as the parties adduce, did Scrub Leases Nos. 287 and 416 confer “a right of exclusive possession over particular lands or waters”, within the meaning of s 23B(2)(c)(viii) of the NT Act such that the act of granting or vesting those Scrub Leases is a “previous exclusive possession act” within the meaning of s 23B of the NT Act?

(b)    If the answer to question (a) is yes, did Scrub Leases Nos. 287 and 416 have the effect of wholly extinguishing all native title, if any, in relation to the land or waters covered by those leases, in accordance with s 23E of the NT Act and s 20(1) of the NSW NT Act?

(c)    If the answer to question (a) is no, has any one or more legislative or executive act or acts subsequent to the grant of Scrub Lease Nos. 287 and 416, affecting the rights of the lessees, resulted in the lessees holding a right of exclusive possession?

(d)    If the answer to question (c) is yes, did Scrub Lease Nos. 287 and 416 have the effect of wholly extinguishing all native title, if any, in relation to the land or waters covered by those leases?

(b) Agreed facts

83    The applicant and the State agree the following matters.

A. Scrub Lease No 287

(a)    On 21 July 1909, Crown land comprising about 6,000 acres within the Parish of Tinda, County of Cunningham (Original Lease Land) was declared scrub lands, in accordance with section 35 of the CL Act 1889. The declaration was recorded in the New South Wales Government Gazette No 98, 21 July 1909, p 4018.

(b)    On 21 July 1909, a call for tenders for a Scrub Lease over the Original Lease Land was advertised in the New South Wales Government Gazette No 98, 21 July 1909, pp 4034-4035 (1909 Call for Tenders).

(c)    Scrub Lease No. 287 was granted pursuant to section 35 of the CL Act 1889:

(i)    over the whole of the Original Lease Land;

(ii)    following the 1909 Call for Tenders and subject to the conditions contained therein;

(iii)    for a term commencing on 23 September 1909 and ending on 22 September 1930.

(d)    The grant was recorded in the New South Wales Government Gazette No 126, 29 September 1909, p 5333.

(e)    Part of Scrub Lease No. 287, comprising an area of land not part of the land which later became Lot 49, DP 752119 was surrendered, such surrender was recorded in the New South Wales Government Gazette No 105, 7 July 1922, p 3702.

(f)    On 9 November 1923, Crown land comprising about 1,640 acres was added to Scrub Lease No. 287 pursuant to s 164 of the CLC Act 1913 (Additional Lease Land). The addition was recorded in the New South Wales Government Gazette No 137, 9 November 1923, p 5040.

(g)    The term of Scrub Lease No. 287 was extended to 22 September 1937 under s 229 of the CLC Act 1913, by notice in the New South Wales Government Gazette No 137, 22 October 1926, pp 4459-4460.

(h)    Scrub Lease No. 287 expired on 22 September 1937.

(i)    Portion 49 Parish of Tinda, now Lot 49, DP752119, consists of the parts of the Original Leased Land and the Additional Leased Land.

B. Scrub Lease No. 416

(a)    On 12 May 1933, Crown land comprising about 9,700 acres, including (inter alia) measured portions 14 and 15 within the Parish of Mamre, County of Cunningham and portion 36 within the Parish of Willama, County of Cunningham (now known as Lot 14, DP752101; Lot 15, DP752101 and Lot 36, DP752120 respectively) was declared scrub lands, in accordance with the s 77 of the CLC Act 1913. This was effected by notification in the New South Wales Government Gazette No 71, 12 May 1933, p 1605 (1933 Declaration).

(b)    Scrub Lease No. 416 was granted pursuant to s 77(a) of the CLC Act 1913:

(i)    over the whole of the area declared scrub lands in the 1933 Declaration;

(ii)    for a term commencing on 12 May 1933 and ending on 11 May 1954.

(c)    The grant was recorded in the New South Wales Government Gazette No 71, 12 May 1933, pp 1605-1607.

(d)    Scrub Lease No. 416 was forfeited, such forfeiture being effected by notification in the New South Wales Government Gazette No 68, 8 May 1942, p 1544, effective from 7 June 1942.

(c) Other matters

84    The applicant and the State asked the Court to note the following matters in respect of the two Scrub Leases.

A. Scrub Lease No. 287

(a)    The State contends that Scrub Lease No. 287 wholly extinguished all native title, if any, in relation to the land or waters covered by that lease.

(b)    It is agreed between the applicant and the State that Scrub Lease No. 287 was valid within s 23B(2)(a) of the NT Act.

(c)    It is agreed between the applicant and the State that Scrub Lease No. 287 was granted before 23 December 1996.

B. Scrub Lease No. 416

(a)    The State contends that Scrub Lease No. 416 wholly extinguished all native title, if any, in relation to the land or waters covered by that lease.

(b)    It is agreed between the applicant and the State that Scrub Lease No. 416 was valid within s 23B(2)(a) of the NT Act.

(c)    It is agreed between the applicant and the State that Scrub Lease No. 416 was granted before 23 December 1996.

Consideration and determination

(a) History of Scrub Leases

85    The Crown Lands Act 1884 (NSW) (CL Act 1884) effectively consolidated legislation regulating all Crown land dealings, reservations, dedications and land sales in the State. All future grants of land would contain a reservation of minerals and the Governor could reserve or exempt land to safeguard public interest. Under the CL Act 1884, NSW was divided into three districts, namely the Central Division, the Eastern Division and the Western Division.

86    The CL Act 1884 created a range of landholding leases, including:

    conditional leaseholds, which were for a maximum term of five years in the Eastern Division, ten years in the Central Division and fifteen years in the Western Division;

    occupation licences for the occupation of land for grazing for one year;

    homestead leases;

    annual leases for pastoral purposes;

    scrub land leases;

    scrub land conversion leases;

    wharf, jetty, pier or floating dock leases; and

    special purpose leases for dams, tanks, irrigation works, punt houses, ferries, bathing places, landing places, sawmills, brick kilns etc.

87    Crown leases over scrub lands were first introduced by ss 86 and 87 of the CL Act 1884 in a subpart of the statute headed “Special Leases” within Part IV. The long title of the CL Act 1884 was “[a]n Act to regulate the Alienation Occupation and Management of Crown Lands and for other purposes”. “Crown Lands” was defined in s 4 as meaning “lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any of the Acts hereby repealed”. A “Pastoral Holding” was defined in s 4 as meaning “the area included within the continuous boundaries or reputed boundaries of any station worked or used for grazing purposes whether such station includes more than one run or includes land held by or in the interests of the runholder otherwise and under pastoral or pre-emptive lease or not”. “Run” was defined in s 4 to mean Crown Land “held under pastoral lease at the commencement of this Act and also any land which by the operation of this Act may have reverted or may revert to such lease”. Section 5 provided that Crown Lands shall not be sold, leased, dedicated, reserved or dealt with except under and subject to the provisions of the Act. Section 6 empowered the Governor to grant, dedicate, reserve, lease or make any other disposition of Crown Lands but only for some estate, interest or purpose authorised by the Act.

88    Part IV of the Act included ss 70-100 and was headed “Occupation”. Under s 71, every runholder was entitled within a stipulated period to lodge with the Minister a written application for a Pastoral Lease. Section 78 empowered the Governor to grant a Pastoral Lease. The term of any Pastoral Lease varied depending upon whether the lease was in the Western, Central or Eastern Division of the State. Under s 78(vii), the Governor was empowered to withdraw from lease any land required for any public purpose and, if that occurred, the lessee was entitled to compensation for the unexpired term of the lease and for improvements lawfully made by the lessee upon the land.

89    Under s 82 of the CL Act 1884, the Governor was empowered to grant Homestead Leases in the Western Division, subject to various limitations set out in that provision.

90    Under s 85 of the CL Act 1884, the Governor was empowered to lease Crown Lands in areas not exceeding 1,920 acres if such lands were not by the Act specially exempted from being so leased or were not under Pastoral, Homestead or Conditional Lease.

91    As noted above, Part IV of the CL Act 1884 also contained provisions relating to “Special Leases”. “Special Leases” were distinguished from other leases and licences provided for in that legislation, such as “Pastoral Leases”, “Occupation Licences” and “Homestead Leases”. Section 86 provided that the Minister could, on the recommendation of the Local Land Board, declare any Crown Lands wholly or partly covered by scrub or other noxious undergrowth to be Scrub Lands. Section 87 provided that Scrub Lands could be leased in areas not exceeding 10,240 acres nor less than 640 acres and for a term not exceeding 15 years, subject to such conditions as to clearing and destruction of scrub as may be defined by regulations. Provision was also made for the payment of an annual rental, which varied over the terms of the lease. Lessees were also required to satisfy the Local Land Board that they had commenced and were continuing to fulfil the conditions of their Scrub Lease concerning clearing and destruction of scrub on the leased land. Section 87 further provided that if any lessee shall fail to pay rent or satisfy the Board as required, the Minister was empowered on the recommendation of the Board to declare the lease to be forfeited.

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

93    Provisions such as these concerning Scrub Leases were retained with some modification in the CL Act 1889, particularly s 35 (pursuant to which Scrub Lease No. 287 was granted) and also in the CLC Act 1913, particularly s 77 (pursuant to which Scrub Lease No. 416 was granted).

94    Section 35 of the CL Act 1889 provided:

The Minister may, upon the recommendation of the Local Land Board, by notification in the Gazette, declare any Crown Lands wholly or partly covered by scrub or noxious undergrowth to be scrub-lands; and may, on the recommendation of the Local Land Board, and notwithstanding anything in the “Prickly Pear Act” contained, grant leases of such lands on application, or sell the same by auction or tender at such times and places and under such conditions and for such terms not exceeding twenty-one years as he may deem desirable. Lands so declared to be scrub-lands shall not until leased in accordance with this section be withdrawn from any lease or license under which they may at the time be held; and no scrub-lease of lands within the outside boundaries of land held under pastoral lease or homestead lease shall be granted to any person but the holder of such pastoral or homestead lease, in which case such scrub-lease shall not be for a longer term than the unexpired term of such pastoral or homestead lease, and the term of a scrub lease may be divided into such periods as the Minister shall fix, and the rent for the second or any succeeding period shall be determined in accordance with section six of this Act. And the Minister, notwithstanding anything in this Act or in the Principal Act contained, may, on the recommendation of the Local Land Board, either before or after granting any such scrub-lease, cause the rental of the remainder of the land held under pastoral or homestead lease to be reappraised and redetermined. Provided that no pastoral or homestead lessee shall hold or cause to be held on his behalf, or in his interest, any scrub-lease, except within the land held under lease by himself. The applicant for any scrub lease shall pay the cost of survey thereof, or in the event of his withdrawing his application, all costs of survey, reports, or inquiry incurred in dealing therewith. And all such leases of scrub-lands and any scrub-leases granted after the commencement of this Act in pursuance of applications made under the Principal Act shall be subject to the general provisions here following—

(I)    Every such lease shall, if granted in pursuance of an application or by tender, commence from the date of the notification in the Gazette of the Minister’s approval of the application or acceptance of the tender; and, if sold at auction, shall commence from the date of sale. And the land held thereunder shall (subject to the provision for withdrawal contained in section seventy-eight, subsection (vii) of the Principal Act, which shall be held to apply to scrub-leases) during the whole currency thereof be unavailable for purchase or lease.

(II)    Rent for the first year of the lease shall together with the cost of survey, be paid within one month from the date of the notice in the Gazette specifying the amount thereof; and the rent shall for succeeding years be paid annually in advance on or before the last day of the current year of the lease.

(III)    Every holder of a scrub-lease shall, as conditions of his lease, be required to take all such steps as the Local Land Board shall from time to time, subject to appeal, direct, for the purpose of destroying such scrub as may be specified in his lease or promise of lease, in and upon the land under scrub-lease, or in and upon any land within the boundaries of the lease, or in and upon any reserves or roads within such boundaries; and when so destroyed to keep such land free from the same; and shall commence to destroy the same within three months after the commencement of the lease. And if rent thereon shall not be paid within the time allowed, or if in the opinion of the Minister, after report by the Local Land Board, subject to appeal, the holder shall have failed to comply with any condition of his lease, the Minister may, by notification in the Gazette, declare such lease to be forfeited; and all improvements on such lands shall be the property of the Crown.

(IV)    Any land held under scrub-lease shall, on the forfeiture or surrender thereof, be added to the lands held under lease or license within the boundaries of which it may be situated, and rent therefor shall be payable at such rate per acre as may be determined by the Local Land Board, and shall form part of the rent payable for such lease or license, which shall be liable to forfeiture if the rent for the added lands be not paid as prescribed.

(V)    If a pastoral lease or homestead lease be held in conjunction with a scrub lease, neither of such leases shall be transferred separately.

95    Section 77 of the CLC Act 1913 provided:

On the recommendation of the local land board the Minister may declare by notification in the Gazette any Crown lands – wholly or partly covered by scrub or noxious undergrowth – to be scrub-lands; lands so declared to be scrub-lands shall not until leased in accordance with this section be withdrawn from any lease or license under which they may at the time be held. On the like recommendation (and notwithstanding anything contained in the Prickly-pear Destruction Act, 1901), the Minister may grant leases of such lands (not being in the Western Division) upon application or sell the same by auction or tender at such times and places and under such conditions and for such terms not exceeding twenty-one years as he may deem desirable.

The term of a scrub lease may be divided into such periods as the Minister shall fix, and the rent for the second or any succeeding period shall be determined by the local land board.

The applicant for any scrub lease shall pay the cost of the survey of the land within three months after the date of demand, or in the event of his withdrawing his application all costs of survey reports or inquiry incurred in dealing therewith.

And all such leases of scrub-lands shall be subject to the provisions hereunder specified:—

(1)    Every such lease shall, if granted in pursuance of an application or by tender, commence from the date of the notification in the Gazette of the Minister's approval of the application or acceptance of the tender; and if sold by auction shall commence from the date of sale.

(2)    Rent for the first year of the lease shall be paid within three months after the date of a demand made as prescribed for such rent specifying the amount thereof; and the rent for succeeding years shall be paid annually in advance before the recurring date of the commencement of the lease.

(3)    Every scrub lease shall be subject to the conditions that the holder thereof shall take all such steps as the local land board shall from time to time, subject to appeal, direct for the purpose of destroying the kinds of scrub specified in his lease in and upon the land included under the lease, or in and upon any land within the external boundaries of the lease, or in and upon any reserves or roads within such boundaries–and, when so destroyed, to keep such lands free from the same–and shall commence to destroy the same within three months after the commencement of the lease.

(4)    If it should appear to the satisfaction of the Minister, after report by the local land board, that the holder of a scrub lease has failed to comply with any condition thereof, the lease shall be liable to be forfeited: Provided that no such report shall be necessary in any case of non-payment of rent.

(5)    Any land held under scrub lease shall, on the forfeiture or surrender thereof, be added to the lands held under lease or license within the boundaries of which it may be situated, and rent therefor shall be payable at such rate per acre as may be determined by the local land board, and shall form part of the rent payable for such lease or license, which shall be liable to be forfeited if the rent for the added lands be not paid as prescribed.

(6)    Nothing in this section shall affect the operation of the provisions (set out in Part VIII of this Act) as to withdrawal of land from the lease, extension of the term of the lease, granting of tenant-right in improvements, right to apply for a homestead grant of portion of the leasehold, or otherwise.

(b) Some earlier legislative history

96    The State relied upon the “historical approach” adopted in State legislation which preceded the CL Act 1884, with particular reference to the distinction between licences and leases. This was said to be reflected in Orders in Council dating back to 1847 and the following matters.

97    For the period 1788 to 1847, although the Governor of the Colony was empowered to grant land in fee simple; there was no power to grant a lease of Crown land. By an Imperial Act of 1842 entitled An Act for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies (Waste Lands Act 1842), provisions were enacted which applied to what were described as the “Waste Lands of the Crown”. The Sale of Waste Lands Act 1842 provided for the disposal of Waste Lands in the colony and permitted lands to be reserved from sale for purposes which included the benefit of Aboriginal people (see s 3).

98    A further Imperial Act was passed in 1846. It was entitled “An Act to amend an Act for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies, and to make further Provision for the Management thereof” (Waste Lands Amendment Act 1846). Section 1 of that Act made it lawful for the Crown to demise, or grant a licence for the occupation of, “Waste Lands of the Crown” for certain specified terms. Under s 6 of the Sale of Waste Lands Amendment Act 1846, provision was made for the Crown, by Orders in Council, to make rules and regulations concerning such matters as term, rents and forfeiture. In addition, under s 10, the Crown was permitted, by Orders in Council, to delegate the powers described in the Act to the Governors of the relevant colonies.

99    Orders in Council were made on 9 March 1847 (1847 Orders in Council) which provided among other things for:

(1)    the Colony of NSW to be divided into three classes, namely Settled Districts, Intermediate Districts and Unsettled Districts (s 1);

(2)    the identification of the parts of the Colony comprising each class of lands (ss 2-4); and

(3)    the enforcement of particular rules, including rules concerning the grant of leases for “pastoral purposes” in the respective areas comprising each class of land (which in the case of Unsettled Districts and Intermediate Districts were leases of runs of land) (Chapters 2, 3 and 4).

100    There was a delay in the terms of the 1847 Orders in Council reaching the Colony. On 18 June 1847, a notice was published in the Government Gazette which indicated, amongst other things, that from 1 July 1847 the Government would be in a position to grant leases of runs under the then expected 1847 Orders in Council.

101    The 1847 Orders in Council were proclaimed in the Colony and published in the Government Gazette on 7 October 1847. They commenced on that day. As mentioned, land in the Colony was divided into three classes. With respect to the “Unsettled Districts”, s 1 of Ch 2 provided that leases of runs of land could be granted to such persons as the Governor thought fit, for any term not exceeding 14 years, for “pastoral purposes”. It was explicitly stated in s 1 that such leases “shall in no case prejudice, interact, or interfere with the right of the Governor or other Officer for the time being administering Government of the said colony to enter upon any of the lands comprised in the said leases for any purpose of public defence, safety, improvement, convenience, utility, or enjoyment, agreeably to the provisions for those purposes contained in [s 9 of Ch 2] of this Order in Council, or otherwise”. Section 9 of Ch 2 dealt with grants for public purposes.

102    Section 11 of Ch 2 was headed “Mode of acquiring leases of existing runs”. In its terms, it allowed occupants of Crown Lands by “licensed occupation” to demand leases of their respective runs, subject to certain specifications. It provided:

All occupants of Crown Lands who shall have been in licensed occupation of the same for at least one year at the time when this Order in Council shall come into effect, are to be entitled to demand leases of their respective runs under the present regulations, within six months from the date of the publication of this Order in Council by the Governor or other Officer administering the Government of the said colony, but not afterwards; and all occupants who have been in licensed occupation of their lands for a shorter period than the term of one year, shall be entitled, upon the expiration of the same term of one year, without having forfeited their respective licenses, to demand leases of their respective runs under the regulations herein contained; provided such lease shall be lawfully demanded within six months after the expiration of the said term of one year, but not afterwards.

103    In the present proceeding, the State emphasised that the power conferred upon the Governor under s 1 of Ch 2 of the 1847 Orders in Council was “confined to the granting of leases”. It submitted this was significant because the power was not expressed in terms of granting “tenures” or “licences”. It submitted that express use of the word “lease” in s 1 was significant in defining the scope of the Governor’s power. That is because it contended that the term “lease” was used to describe the kind of instruments that might lawfully be granted under the 1847 Orders in Council and that s 1 “was intended to, and had the effect of circumscribing the extent of the Governor’s power”, in that that power was confined to the granting of leases. It then submitted that, for a valid exercise of the power to grant a lease under s 1, the grant was required to be a lease in the common law sense.

104    The State submitted that the Imperial Acts and 1847 Orders in Council remained in force after the Colony attained self-government in 1855, at which time the entire management and control of the Crown’s Waste Lands were vested in the legislature.

105    In 1861, the NSW Parliament passed two Acts. The first was the Crown Lands Occupation Act 1861 (NSW). The second was the Crown Lands Alienation Act 1861 (NSW). The 1847 Orders in Council were repealed. In s 1 of both Acts, “Crown Lands” was defined as all lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple. The Crown Lands Occupation Act acknowledged that Crown Lands may have previously been granted in the form of a lease or licence. This is reflected in the definition of “Run” in s 1, which was defined as:

Any portion of Crown Lands comprised in any lease or license granted or lawfully contracted to be granted on or after [22 February 1858].

106    It was provided in s 4 that existing leases of Crown Lands shall not be renewed except under the Crown Lands Occupation Act. The Act contained numerous provisions relating to the grant and renewal of leases. Leases for pastoral purposes in either the Settled Districts or in the Unsettled Districts were subject to significant limitations. For example, although under s 20 lessees for pastoral purposes in either of those Districts was permitted to cut and use such timber and material for building and other purposes as may be required by them as tenants, such lessees did not have power to restrict other persons who were duly authorised to cut or remove timber of material for building or other purposes or from searching for any metal or material within the leased land (s 21). Under s 13(5), the Governor was entitled to resume land from any lease in Second Class Settled Districts and Unsettled Districts for the site of any city, town or village or for commonage or for any public purpose whatsoever. The lessee of any such resumed land had no right to compensation for such resumption save for repayment of rent proportionate to the area withdrawn and the period unexpired (see s 13(5)).

107    It was acknowledged in s 33 of the Crown Lands Occupation Act that there were subsisting leases or licences granted under either Orders in Council or earlier legislation. This provision is inconsistent with any suggestion that there was no power to grant a licence under the 1847 Orders in Council. Section 33 imposed penalties on any person found occupying any Crown Lands unless entitled to do so by a subsisting lease or licence.

(c) Some additional factual matters

108    Scrub Lease No. 287 was granted pursuant to s 35 of the CL Act 1889, for a term commencing on 23 September 1909 and ending on 22 September 1930. The leased area was 6,000 acres at the time the lease was granted, but in 1922 the leased area was reduced by approximately 50 acres when that area was surrendered. On 9 November 1923 an additional 1,640 acres were added to the leased area and, in 1926, the term of the lease was extended to 22 September 1937. Scrub Lease No. 287 expired on 22 September 1937.

109    Scrub Lease No. 416 was granted pursuant to s 77 of the CLC Act 1913, for a term commencing 12 May 1933 and ending on 11 May 1954. The area was approximately 9,700 acres when the lease was granted. This Scrub Lease was forfeited in 1942.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(p)    All public rights in roads were preserved.

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

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

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

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

111    The conditions attached to Scrub Lease No. 416 (which also derived from various sources, including the CLC Act 1913, regulations and the terms of the lease instrument itself) were also extensive as is reflected in the following matters (which the applicant also submits indicate that the lessee held a “precarious interest” similar to the case with a pastoral lease):

(a)    The lessee was required to preserve warrior, quandong, and currant bush and other edible scrubs. The lessee was also to preserve sufficient trees for shade and shelter and all currajong, wilga, and other edible trees. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs or trees for stock-feeding purposes in times of drought.

(b)    The lessee was to preserve all straight white and Lachlan pine of a certain dimension and useful for fencing, mining, or building, or railway sleepers, but was entitled (except on the Wood Lot or Forest reserve) to cut and use any timber for fencing or other improvements in the lease area.

(c)    The lessee was required to destroy box gum and ironbark seedlings, budda, wattle, camomile, sifting bush and other noxious undergrowth, plants and weeds.

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

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

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

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

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

(i)    The lessee was to fence the unfenced boundaries.

(j)    The lessee was to provide a sufficient water supply by the excavation of a tank or the construction of a tank or dam, or the sinking of a well.

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

(l)    The Governor could withdraw the whole or any part of the lease at any time for the purposes of settlement in the event of a railway or tramway being constructed within 15 miles of the lease. The Governor could withdraw the whole or any part of the land for the purposes of settlement if the Minister was of the opinion the land could be profitably occupied for agricultural purposes. After 10 years, the Governor could withdraw the whole or any part of the lease for settlement. In no case was the lessee entitled to compensation, other than for a proportion of the payment for improvements from an incoming tenant.

(m)    The Governor could withdraw at any time any land required for mining or mining purposes, residential lease, sawmill site, or for any public purpose without any compensation, except for the lessee’s interest in improvements on the land withdrawn.

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

(o)    The lessee could not transfer, assign, sublet, or grant agistment rights, without the Minister’s consent in writing.

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

(q)    All public rights in roads were preserved.

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

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

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

(d) State’s primary contentions summarised

112    In addition to its submissions concerning general principles as summarised in the Introduction above, the State made the following primary contentions regarding the two Scrub Leases. First, it emphasised that the intensity with which the Scrub Lessees were required to use the land and the obligations imposed upon them to improve the land (including by building dams and insuring a water supply) supported the conclusion that exclusive possession was granted because, without that, the purpose was unlikely to be realised.

113    Secondly, the State drew attention to the fact that each of the two relevant Scrub Lessees was required to erect a fence around the leased area.

114    Thirdly, the State emphasised that an important object of a Scrub Lease was to facilitate land clearing to enable it to be used for other purposes and that the statutory regime entitled Scrub Lessees to apply for a “Homestead Selection” (see s 27 of the Crown Lands Act 1895 (NSW) (CL Act 1895) and s 193 of the CLC Act 1913). In this context, the State relied upon the following extract from the second reading speech for the Bill which became the CL Act 1895, made by the Secretary for Lands, as set out in Anderson at [104] (emphasis added by the State):

I introduce a new principle – a principle which has tended to build up the greatness of the United States, which is building up the greatness of the Anglo-Saxon community of Canada, the principle of homestead selection, a principle which will enable a man to acquire a homestead in surveyed and subdivided areas which are found suitable for the purpose on terms which will not cripple his resources in the early stages … I cannot go so far as some of my friends and use the term ‘perpetual leasehold,’ but I will tell you what I do. I give them perpetual leasehold in all its incidents, in perpetual rent, which must be paid year by year. I give them the incidents and obligations of a leasehold tenure. Always having the Crown as the landlord I preserve the old title of freehold … Whilst I attach to these holdings the elements and incidents of perpetual leaseholds, I keep the old name of freehold because it will be more valuable to the holder, and it will be less likely to lead to complications which must arise in conveyancing if there is introduced a strange and hitherto unknown tenure, which may become a fertile source of litigation by its operation.

115    The State added that a Homestead Selection was a form of tenure which had “all the advantages and essence of a freehold”, citing Anderson at [107]. The State contended that a Homestead Selection is a “pathway” to freehold and that a Scrub Lease is an earlier pathway to Homestead Selection. The State submitted that a Homestead Selection was therefore wholly inconsistent with native title rights and interests (as was said to be further confirmed by the fact that Homestead Selection or grant (whether an original or an additional holding) under the CL Act 1895 or the CLC Act 1913 is a Scheduled interest under s 249C and cl 3(2) of Sch 1, Pt 1 of the NT Act).

116    Fourthly, the State contended that the conditions attaching to the two Scrub Leases confirmed that they were true leases in the common law sense because each lease could be assigned or sub-leased with Ministerial consent.

117    Fifthly, the State drew attention to the fact that in the case of both Scrub Leases, the withdrawal of any parts of the leased areas by the Crown for settlement or public purposes entitled the Scrub Lessee to at least some form of compensation.

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

(e) The applicant’s primary contentions summarised

119    It is unnecessary to summarise these contentions because they are substantially reflected in my reasons for rejecting the State’s position.

Resolution

120    For the following reasons, I do not accept the State’s proposition that the two Scrub Leases granted each lessee exclusive possession or otherwise conferred rights which are inconsistent with any native title rights and interests, with the consequence that native title rights and interests were wholly extinguished.

121    First, under both the CL Act 1884 and the CLC Act 1913, the purpose of granting a Scrub Lease was to facilitate the elimination of scrub, with a view to the land being used more profitably, most likely for grazing purposes. Significantly, there was no limitation on the area covered by a Scrub Lease. When originally granted, the two Scrub Leases here were for 6,000 and 9,700 acres respectively. Those are extensive areas and, stated generally and at an abstract level, the rights conferred on such lessees are likely to co-exist with any native title rights in contrast with significantly smaller leased areas, particularly where dwellings are involved. Holders of pastoral leases or homestead leases could not apply for Scrub Leases unless the relevant land was within the boundaries of the existing pastoral or homestead lease. In such a case, the term of the Scrub Lease was the unexpired term of the pastoral or homestead lease. In the event that a Scrub Lease was forfeited, the land was added to the pastoral or homestead lease surrounding it, and was subject to the same rent (and no longer at the substantially reduced rent). That is not to say, however, that Scrub Leases could only be granted to the holder of a pastoral or homestead lease (see CL Act 1884, ss 86-88; CL Act 1895, ss 26-27; and CLC Act 1913, s 77 and 193).

122    Secondly, neither lessee had a right of exclusive possession or otherwise had conferred upon them rights which are inconsistent with any native title rights and interests. I accept the applicant’s submission that an analysis of the relevant conditions and limitations of both Scrub Leases (which is an essential task) reveals that they are hardly consistent with the notion of either lessee having exclusive possession. In particular, I accept its submissions that the precarious nature of the interests held under those Scrub Leases is indicated by the fact that the leases were “in respect of land with little to no worth, and could be granted within the outer boundaries of pastoral and Homestead Leases, for little to no rent, in order that the lessee might improve the grazing quality of the land”. Equally significantly, each lease was susceptible to resumption at any time for any public purpose under s 78(vii) of the CL Act 1884 and s 233 of the CLC Act 1913, in the same way as pastoral leases.

123    In addition, it is notable that third parties enjoyed various rights of entry onto the land the subject of the two Scrub Leases, as is reflected in the conditions summarised at [110] and [111] above. Those third party rights of entry went well beyond the kinds of rights of entry applicable to freehold land. They included rights of entry by a person holding a mining right (including to graze horses on the leased land) and the right of entry of authorised persons to enter the lease to cut and remove timber (including camping and grazing horses on the leased land).

124    Of course, each case necessarily turns on its own particular facts (with particular reference to the legislation from which the lease is derived as well as the terms of the lease instrument) so as to determine the nature and extent of the particular rights and interests held by an individual leaseholder. But it is worth repeating the following observations of Toohey J in Wik at 122 that are generally apposite to the two Scrub Leases here:

A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee’s right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No 2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time.

125    The significance of the reservation of the right of a person holding a miner’s right to enter upon and do other things on the leased land is evident if one goes to the relevant provisions of the Mining Act 1906 as in force at the time both leases were granted. Under s 9, a miner’s right was issued on the application of any person. Section 15 then described the extensive and substantive rights which were conferred upon the holder of a miner’s right, all of which cast strong doubt on the proposition that the Scrub Lessees had a right of exclusive possession:

Rights conferred by a miner’s right.

15.     (1) Except as against His Majesty, a holder of a miner’s right, or any number of persons being each the holder of a miner’s right, may, subject to the regulations and to the exemptions in this Part–

(a)    take possession of and exclusively occupy as a claim any Crown land for mining purposes, and mine therein;

(b)    have and possess any gold or other minerals found in such land whilst so occupied;

(c)    erect any building, structure, or machinery upon land so occupied, and remove the same at any time during such occupation;

(d)    exercise any rights of the nature of easements in connection with land so occupied;

(c)    occupy Crown lands, and construct and use thereon races, dams, reservoirs, roads and tramways for mining purposes;

(f)    take or divert water from any lake, pool, spring, or stream, situate in or flowing through Crown lands not exempted from occupation under a miner’s right or business license, and use such water for mining or domestic purposes;

(g)    procure and remove for mining, smelting, building, or other purposes for his or their personal use only, any bark, or live or dead timber, or any stone or gravel from any Crown lands not

(i)    exempted from occupation under a miner’s right or business license; or

(ii)    within the operation of any proclamation or notification prohibiting the cutting or removal of such timber, bark, stone, or gravel:

Provided that this right to procure and remove bark or timber may be exercised only by persons (not being corporations) actually holding miners’ rights;

(h)    while following the occupation of a miner or prospector, graze upon Crown lands not exempted as aforesaid such horses or other animals as may be necessary for his or their subsistence and for the carrying on of prospecting or mining.

(2) Provided that for the purposes of taking possession of more than one tenement of any specific class, the person so taking possession must hold an additional miner’s right for each additional tenement after the first of the same class. The different classes may be prescribed by the regulations.

126    Moreover, under s 16(1) of the Mining Act 1906, the holder of a miner’s right was empowered (subject to any exemption), to take possession and occupy Crown Lands as a residence area for the purpose of residing thereon (which, under s 16(2) was limited to a maximum area of two acres if the Crown land was outside the boundaries of a town or village). These particular provisions of the Mining Act 1906 applied to both Scrub Leases the subject of this Schedule. This is because they contain conditions which reserved all or any rights conferred by any Act relating to mining (see the proviso to s 14(1)), which meant that lease land under Scrub Leases was subject to occupation under a miner’s right.

127    The significance of both leases being subject to such provisions of the Mining Act 1906 is further highlighted when attention is given to the definition of “Crown lands” in s 3 thereof. Except for Pt V (which dealt with dredging leases), such lands were defined there as land vested in His Majesty and included (relevantly) lands under lease apart from lands subject to a conditional lease, conditional purchase lease or lease granted under the Act itself, as well as conditional purchases or homestead selections. Land held in fee simple did not fall within the definition of “Crown lands”. Part IV of the Mining Act 1906 dealt with mining on “private lands” (which were defined in s 45 as lands other than Crown lands but not including lands situated within the boundaries of a town or village unless there was a gubernatorial proclamation to the contrary). Thus land held in fee simple was not subject to Pt IV.

128    Importantly, under s 23(1)(c) (which dealt with the Governor’s power to grant mining leases), it was provided that the surface of Crown land held under lease from the Crown for purposes other than pastoral purposes shall only be leased subject to the payment of compensation. Accordingly, leases for pastoral purposes did not attract this statutory right to compensation which arose where a mining lease was granted over land otherwise leased from the Crown. This highlights the significance of the relevant conditions in both Scrub Leases here, which deemed them to be leases for pastoral purposes within the meaning of the Mining Act 1906 (see the conditions at [110(q)] and [111(r)] above), thereby attracting certain exceptions applying to leases for pastoral purposes in provisions such as s 23. This serves further to demonstrate the precarious nature of the interest held under a Scrub Lease (and, indeed, other leases granted for pastoral purposes). The State did not suggest that there were any relevant amendments following the commencement of the Mining Act 1906 which would affect the analysis above.

129    Thirdly, I reject the State’s submission that the “intensity” with which a Scrub Lessee was entitled to use the land is a characteristic supporting a right to exclusive possession or otherwise constituting a right which is inconsistent with any native rights and interests in the particular circumstances of these leases. The central question is whether the rights and interests conferred by the particular leases are inconsistent with the continuation of any native title rights and interests in the relevant land. As Brown High Court well illustrates, even the rights and interests conferred by mineral leases on the joint venturers there were held not to be inconsistent with native title rights notwithstanding that the mining operations were intensive. The position may be different where the lease area is relatively small and the activities on it are intensive.

130    Fourthly, the requirement that a Scrub Lessee provide water supply or a dam was to enable the “full stocking” of the land, as is reflected in special condition 16 of Scrub Lease No. 287 (see [110(j) above]. That requirement was similar to the situation under a pastoral lease for grazing. Even extensive grazing on leased land which is of substantial acreage is, as a general proposition, unlikely to be inconsistent or incompatible with any applicable native title rights, absent some special feature.

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

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

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

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

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

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

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

132    Sixthly, it is true, as the State pointed out, that under both Scrub Leases, if the lessee wanted to transfer, assign, or sublet the lease or grant agistment rights, the Minister’s consent in writing was required (see special condition 25 of Scrub Lease No. 416 and special condition 15 for the extension of the term of Scrub Lease No. 287 in 1926). But that requirement does not suggest that the lessees had a right of exclusive possession. In any event, it is far outweighed by other considerations.

133    Seventhly, I reject the State’s contention that its position with respect to the two relevant Scrub Leases is supported by the “historical approach” adopted in State legislation which preceded the CL Act 1884 and the CLC Act 1913, including the 1847 Orders in Council. As noted above, the 1847 Orders in Council themselves contemplated the possibility of Crown land being the subject of a licence. It is also relevant to note that under Pt VIII, Div 9 of the CLC Act 1913, various general and miscellaneous provisions in ss 226-233 applied equally to leases and licences in the Eastern or Central Division. This included s 226(1)(b), which provided that no lease or licence, apart from a special lease (which was distinct from a Scrub Lease under the CLC Act 1913), shall confer any right on the landholder “to remove material from the land under lease or license or to sublet such land for other than grazing purposes or to prevent the entry and removal of material by persons authorized in that behalf.”

134    Finally, and more generally, the State’s submissions regarding the two Scrub Leases were inclined to cherry-pick particular incidents or conditions of the leases and overstate their significance by reference to the weight given to those or similar incidents or conditions in other cases (see the general observations in the Introduction concerning that approach). A good example is the State’s submissions in reply regarding the conditions in the Scrub Leases which required Ministerial consent to assign or transfer the lease or to sublet the lease. The State submitted that such conditions did not have the effect of prohibiting transfer, assignment or subletting and added that it was “apt to recall that the lease considered in Wilson v Anderson… was also subject to similar conditions, which required the lessee to obtain Ministerial consent to transfer, assign or sublet: see at [114]”. The State then added that “similar provisions are unexceptional in most private common law leases”.

135    There are several problems with these submissions. The first (and minor problem) is that the reference to [114] of Anderson is in error. The correct reference is to [113] where the plurality identified the requirement of Ministerial consent to transfer, convey, assign, sublet or mortgage the land the subject of a “lease in perpetuity” as one of a number of incidents which developed over time and which caused the plurality to conclude that the “lease in perpetuity” was akin to freehold tenure and was intended to further the legislative objectives with respect to land development. Other incidents which were referred to in this context and under the particular lease considered there included the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Reference was also made at [113] to the restriction under cl 20 that the lease was not to be transferrable except by way of mortgage for ten years following its commencement, save to certain members of the armed forces. The plurality in Anderson then referred to several other clauses in the lease before expressing the following conclusion at [115]: