Federal Court of Australia

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 39) [2026] FCA 670

ORDERS

THE COURT ORDERS THAT:

1.    The separate questions be answered as follows:

(a)    Question 1: Did the proclamation of the Governor in Council under s 306 of the Land Act 1962 (Qld) (LA62) dated 8 October 1987, published in the Queensland Government Gazette on 10 October 1987, resuming “Portion 74, being part of Camping Reserve (R.136), containing an area of about 8.398 hectares and being the whole of the land contained in Special Lease No. 14/34324”, extinguish all subsisting native title rights and interests within Lot 74 on BS131?

Answer: Yes.

(b)    Question 2: Did the proclamation of the Governor in Council under s 306 of LA62 dated 12 July 1984, published in the Queensland Government Gazette on 14 July 1984, resuming “An area of about 3.1 hectares, being part of the land contained in portion 85, Special Lease No. 39860, as shown on plan R.X.915 in the Department of Mapping and Surveying”, extinguish all subsisting native title rights and interests within Lot 89 on BS210?

Answer: Yes.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    On 21 October 2025, the Court determined that the Guugu Yimidhirr People are native title holders in respect of a determination area in the south-east of the Cape York United #1 claim area: Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 34) (Guugu Yimidhirr determination) [2025] FCA 1282. The Guugu Yimidhirr determination area is an area between Cape Melville and the Endeavour River in Cape York.

2    Within the Cape York United #1 native title claim proceedings, two separate questions were ordered to be determined. Each question is in effect the same, but in respect of different parcels of land within the broader Guugu Yimidhirr determination area but excluded for now from the determination. Each asks whether native title was extinguished by a particular resumption proclamation relating to the relevant parcel.

3    Reversing their numerical order for reasons of chronology, the questions are stated as follows:

    Question 2: Did the proclamation of the Governor in Council under s 306 of the Land Act 1962 (Qld) (LA62) dated 12 July 1984, published in the Queensland Government Gazette on 14 July 1984, resuming “An area of about 3.1 hectares, being part of the land contained in portion 85, Special Lease No. 39860, as shown on plan R.X.915 in the Department of Mapping and Surveying”, extinguish all subsisting native title rights and interests within Lot 89 on BS210?

    Question 1: Did the proclamation of the Governor in Council under s 306 of LA62 dated 8 October 1987, published in the Queensland Government Gazette on 10 October 1987, resuming “Portion 74, being part of Camping Reserve (R.136), containing an area of about 8.398 hectares and being the whole of the land contained in Special Lease No. 14/34324”, extinguish all subsisting native title rights and interests within Lot 74 on BS131?

4    Both parcels of land are situated within what is now the township of Cooktown within the area of the Cook Shire Council. The Council joins in the submissions of the State of Queensland in support of the two separate questions being answered “yes”, ie that all subsisting native title rights and interests in the two parcels of land were extinguished by the resumption proclamations. The applicant, representing the Guugu Yimidhirr people, submits that the questions should be answered “no”.

5    It is common ground that the native title rights and interests which existed in respect of the two parcels of land prior to the resumption proclamations, and which continue to exist unless extinguished by the resumption proclamations, are the non-exclusive rights to:

(1)    access, be present on, move about on and travel over the area;

(2)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(3)    hunt, fish and gather on the land and waters of the area;

(4)    take natural resources (as defined) from the land and waters of the area;

(5)    take water (as defined) of the area for personal, domestic and non-commercial communal purposes;

(6)    be buried and to bury Guugu Yimidhirr People within the area;

(7)    maintain places of importance and areas of significance to Guugu Yimidhirr People under their traditional laws and customs on the area and protect those places and areas from harm;

(8)    teach on the area the physical and spiritual attributes of the area and the traditional laws and customs of Guugu Yimidhirr People to other Guugu Yimidhirr People or persons otherwise entitled to access the area;

(9)    hold meetings on the area;

(10)    conduct ceremonies on the area;

(11)    light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(12)    be accompanied on to the area by those persons who, though not Guugu Yimidhirr People, are:

(a)    spouses of Guugu Yimidhirr People;

(b)    people who are members of the immediate family of a Spouse of a Guugu Yimidhirr Person; or

(c)    people reasonably required by Guugu Yimidhirr People under traditional law and custom for the performance of ceremonies or cultural activities on the area.

6    It is common ground that the native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others. Also, the native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth and Guugu Yimidhirr traditional laws and customs.

The tenure history

7    The tenure history of the two parcels of land is the subject of an agreed statement of facts which was tendered for the purposes of s 191 of the Evidence Act 1995 (Cth).

8    Effective sovereignty, or practical establishment and enforcement of Crown authority over the land and people, for the Guugu Yimidhirr determination area occurred around 1873.

Lot 89 on BS210

9    By a proclamation in February 1880, a large area (described as being “about 5,000 acres”, ie about 2,023 hectares) including what is now Lot 89 on BS210 (Lot 89) was temporarily reserved for pasturage purposes under s 6 of the Crown Lands Alienation Act 1876 (Qld) (repealed). It is agreed that the reserve for pasturage purposes extinguished any native title right to control access to or decide the use of the area comprising Lot 89 but did not otherwise extinguish native title.

10    On 1 July 1976, under a power conferred by LA62 s 203, the Governor in Council granted special lease SL39860 over portion 85 on BS163 (of about 675 hectares which included what is now Lot 89) to Lawrence Keith Sykes. The special lease was “for grazing purposes only” and the lessees were required to “hold the leased land so that [it] be used for the public purpose (Pasturage Reserve) for which it was reserved … without undue interruption or obstruction”. It is agreed that the grant of special lease SL39860 did not extinguish any subsisting native title rights and interests in relation to Lot 89.

11    On 12 July 1984, a proclamation of the Governor in Council under LA62 s 306 was made resuming part of the land in special lease SL39860 as shown in plan R.X.915 (being the part of the land of about 3.1 hectares that would subsequently be described as Lot 89) on and from 14 July 1984 for “the purpose of works for obtaining, conserving, distributing, or utilising water”. Whether the effect of this resumption was to extinguish all subsisting native title rights and interests in relation to Lot 89 is the subject of Question 2.

12    The area covered by the reserve for pasturage purposes was administratively recorded in the Department of Natural Resources as Lot 99 on plan BS256.

13    In February 2000, Lot 99 on plan BS256 was cancelled by the registration of Lots 98 and 99 on plan SP105917, what is now Lot 89 being within the area of Lot 98 on plan SP105917.

14    By gazette notice dated 11 February 2000, the responsible Minister under the Land Act 1994 (Qld) reserved and set aside Lot 89 comprising 3.155 ha for “Local Government (Water Supply) purposes”.

15    As at the date the claimant application was filed, Lot 89 was subject to the reserve for water supply and none of ss 47, 47A, 47B or 47C of the Native Title Act 1993 (Cth) (NTA) applied to Lot 89.

Lot 74 on BS131

16    By an order in council in December 1922, an area including what is now Lot 74 on BS131 (Lot 74) was reserved for camping purposes. It is agreed that the reserve for camping purposes extinguished any native title right to control access to or decide the use of the area comprising Lot 74 but did not otherwise extinguish native title.

17    By an order in council on 21 May 1970, the 1922 camping reserve was rescinded.

18    By a separate order in council on the same day, an area described as portion 74 on BS131 and allotment 6 of section 32 on C17927 was reserved for camping purposes. Portion 74 on BS131 is the same parcel as what is now Lot 74. It is agreed that the reserve for camping purposes did not extinguish any subsisting native title in relation to Lot 74.

19    On 15 October 1970, under a power conferred by LA62 s 198, the Governor in Council granted special lease SL34324 over portion 74 on BS131 to Adrienne Hedy Gravenor and Margaret Audrey Edmands as joint tenants. The special lease was “for grazing purposes only” and the lessees were required to “hold the leased land so that [it] be used for the public purpose (Camping) for which it was reserved … without undue interruption or obstruction”. It is agreed that the grant of special lease SL34324 did not extinguish any subsisting native title in relation to Lot 74.

20    On 8 October 1987, a proclamation of the Governor in Council under LA62 s 306 was made resuming the land in special lease SL34324 for “Local Government (Sanitary) purposes” on and from 10 October 1987. Whether the effect of this resumption was to extinguish all subsisting native title rights and interests in relation to Lot 74 is the subject of Question 1.

21    By an order in council in December 1987, Lot 74 was reserved for local government (sanitary) purposes.

22    As at the date the claimant application was filed, Lot 74 was subject to the reserve for sanitary purposes and none of ss 47, 47A, 47B or 47C of the NTA applied to Lot 74.

The principal statutory provisions

23    LA62 as it was at the times of the relevant resumptions, ie 12 July 1984 in respect of Lot 89 and 8 October 1987 in respect of Lot 74, included the following provisions.

24    Section 5 provided that in the Act, “unless the context otherwise indicates or requires”, the following definitions apply:

“Crown land” – All land in Queensland, except land which is, for the time being –

(a)    lawfully granted or contracted to be granted in fee-simple by the Crown; or

(b)    reserved for or dedicated to public purposes; or

(c)    subject to any lease or licence lawfully granted by the Crown: Provided that land held under an occupation licence shall be deemed to be Crown land; …

“Holding” – The land held from the Crown by any lessee; …

“Lessee” – The holder under the Crown of a lease under this Act: the term includes a selector or in the case of any tenure under this Act other than a selection, any person who, having complied with all requirements of this Act prescribed to be complied with by him for the issue of the lease, is awaiting the issue of the lease;…

25    Section 306 provided as follows:

306     Resumption with compensation

(1)     The Governor in Council may resume, by Proclamation published in the Gazette, the whole or any part of any holding. Where for any purpose it is sufficient to acquire an easement on a holding the Governor in Council may resume such easement and for the purposes of this Division such resumption shall, subject to this Division, be deemed a resumption of the party of the holding affected by the easement.

(2)     Upon the resumption of the whole or part of a holding under this section the lessee shall be entitled to compensation for the loss thereof as prescribed by this Division.

26    Section 308 provided as follows:

308     Effect of resumption Proclamation

On and from the date of publication in the Gazette of a Proclamation—

(a)    pursuant to section 306 of this Act,

(i)    where land is thereby resumed, the land thereby taken shall vest in the Crown freed and discharged from all charges, claims, obligations, estates and interests and the entitlement of every person having a lawful estate or interest in the land shall thereby be converted into a right to claim compensation as prescribed by The Acquisition of Land Act of 1967;

(ii)    where an easement only is thereby resumed, the rights comprised in the easement shall vest in the Crown or, where such resumption is made on behalf of a constructing authority, shall vest in that authority, and every person having a lawful estate or interest in the land affected by such easement shall be entitled to claim compensation as prescribed by The Acquisition of Land Act 1967;

…

(b)    pursuant to section 312 or 313 of this Act, the land thereby taken shall vest in the Crown freed and discharged from all charges, claims, obligations, estates and interests and the entitlement of every person having a lawful estate or interest in the land shall be converted into a right to claim compensation as prescribed by this Act.

27    Section 317 provided as follows:

317    Meaning of terms “lessee” and “holding”

For the purposes of this Division—

(a)    “lessee” includes—

(i)    in relation to an expired or surrendered lease, the lessee at the date of expiration or surrender thereof;

(ii)    a purchaser of land sold pursuant to Part VII;

(b)    “holding” includes land being purchased pursuant to Part VII.

The competing contentions

28    The State and the Council submit that the resumption power in s 306, read with s 308 which sets out the statutory consequences of the exercise of the power, was directed to the taking of land in the physical sense, cleared of any rights and interests in relation thereto. They submit that the effect of the resumptions was to vest a form of beneficial title to the land in the Crown to the exclusion of any other rights or interests that may previously have existed, including native title. They say that that construction is supported by considerations of text, context and purpose, including the legislative history of the resumption provisions.

29    The applicant, in contrast, submits that the term “land” in s 308 refers to legal or equitable rights in land, rather than land in the physical sense. The applicant points to a form of resumption considered in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [206]-[208] which was held not to have the result that the Crown acquired all right and title to the land. The relevant provision gave the power to “resume, enter upon, and dispose of the whole or any part of the land comprised in any pastoral lease”, the exercise of which was held to bring the relevant pastoral lease to an end but that the land was Crown land both before and after the resumption; resumption did not give the Crown any larger title to the land than the radical title acquired at sovereignty, with the result that it did not have the effect of extinguishing native title rights and interests. The applicant submits that the effect of ss 306 and 308 of LA62 is the same.

30    The applicant submits that s 306 is a power to extinguish a holding, here in each case being a lease, and that s 308 then operates to vest that lease in the State. He submits that the purpose of resumption under s 306 does not extend to the extinguishment of interests in land arising other than under LA62, and that the vesting under s 308 is of the lease only. This is said to be borne out by s 311 which provides that where a resumption proclamation under s 306 is revoked, the “land taken thereunder shall revest in the person or persons from whom it was resumed”, which the applicant submits means only that the lease goes back to the dispossessed landowner, rather than the entire geographical portion of the land (which would enlarge the interest of the dispossessed lessee). The applicant’s construction is also said to be supported by the fact that the State’s power of resumption in s 306 is not confined to being for “public purposes”.

31    The applicant resists the proposition that the proclamation vests what is equivalent to a fee simple estate in the Crown in a manner similar to other statutory regimes, distinguishing LA62 provisions which are applicable here from other statutory regimes including that discussed in Western Australia v Ward at [278]-[280] and the regime under the Acquisition of Land Act 1967 (Qld).

32    If the State’s construction is preferred so that s 308 operates to wholly extinguish native title, the applicant also advances an alternative case based on procedural fairness. On this alternative case, the applicant submits that the power to make a resumption proclamation in s 306 was subject to a statutory implication of procedural fairness owed to those who would be affected by the proclamation, namely the Guugu Yimidhirr native title holders. As procedural fairness was not afforded to the applicant, about which there is no dispute, he submits that the proclamations are affected by jurisdictional error. However, any consequent invalidity is said to be obviated by the intervening operation of the NTA ss 232 and 238 and the Native Title (Queensland) Act 1993 (Qld) s 13 (NTQA), with the consequence that native title rights are therefore not extinguished, being acts to which the non-extinguishment principle applies which are not “previous exclusive possession acts”.

33    In response to the applicant’s alternative procedural fairness case, the State, while accepting that there is no dispute that the applicant’s native title rights existed from the time of sovereignty, submits that the applicant is nonetheless not retrospectively deemed to have knowledge of those rights. The State submits that there cannot be a procedural fairness obligation that at the time the decision was to be made was impossible to ascertain and impossible to comply with, noting that even if advance notice of the resumptions had been given to those with interests in the land, any native title holders would not have understood themselves at the time to be holding an identifiable legal interest, and the Governor in Council would not have considered them to hold any such interest.

The effect of the resumptions on subsisting native title

34    The key question in this part of the case is whether the meaning of “land” in LA62 s 308 includes land in the sense of the physical thing, ie the land itself, or whether it refers only to legal or equitable rights in relation to the physical thing. If it is the former, s 308(a)(i) had the inevitable consequence that a resumption under s 306 vested the relevant “land” in the Crown “freed and discharged from all charges, claims, obligations, estates and interest”. That would have the result that native title rights and interests were extinguished by the resumption. If it is the latter, a resumption under s 306 only erased the grant of rights and interests that were the subject of the “holding” previously granted, which did not include native title rights and interests; it was those legal and equitable rights in relation to the physical thing that were freed and discharged from all charges, etc.

35    For the reasons that follow, and subject to the alternative argument about procedural fairness to which I will return, the word “land” in LA62 s 308 is not restricted to legal and equitable rights but includes the physical thing itself, and as such the resumptions had the effect of erasing all “charges, claims, obligations, estates and interests” including native title rights and interests in the relevant parcels of land.

36    The starting point is to appreciate that when colonial sovereignty was assumed over the relevant land, the Crown did not acquire absolute beneficial ownership to the exclusion of prior rights and interests; rather, it gained radical title to the land with the result that native title survived – the radical title is said to be burdened with native title rights and interests: Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 48-53 and 69 per Brennan J, 81, 86 and 100 per Deane and Gaudron JJ; New South Wales Aboriginal Land Council v Minister administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [60] per French CJ, Kiefel, Bell and Keane JJ. Thereafter, the Crown could, by a valid exercise of sovereign power that created a right or interest or imposed a prohibition which was inconsistent with the right to enjoy native title, extinguish native title to the extent of the inconsistency: Commonwealth v Yunupingu [2025] HCA 6; 421 ALR 604 at [72] per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ. Such partial extinguishment was the effect of the first reservations in respect of the two parcels that are the subject of this case – in 1880 in respect of Lot 89 and in 1922 in respect of Lot 74.

37    Turning now to LA62, as mentioned, a “holding” is defined in s 5 as “The land held from the Crown by any lessee”. In that context, “land” is most naturally and obviously a reference to a particular piece or parcel of land, ie physical land, that is held from the Crown by the lessee under a lease. Also, s 317 defines “holding” for the purposes of Div XI (which includes ss 306 and 308) as including “land being purchased pursuant to Part VII”. Part VII (by s 170) grants to the Minister the power to sell Crown land by public auction for an estate in fee simple, being a power that is by implication restricted to physical land; the Minister cannot sensibly sell legal rights and obligations such as those embodied in a lease “for an estate in fee simple”. It is thus difficult to see how “holding” could be a reference to the lease itself or the bundle of rights and obligations amounting to or arising from the lease.

38    One sees also that “land” is again used in that physical sense in LA62 s 6(2) which provides that a lease “shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated” – the land and the estate or interest described by the lease are separate concepts.

39    “Land” is used in the same way in LA62 s 299 which provides for the consequence of the forfeiture or other premature determination of a lease. Relevantly, s 299(1) provides that if any lease is determined by forfeiture or other cause before the expiration of the period or term for which it was granted, then, “unless in any particular case other provision is made in that behalf by this Act, the land shall revert to Her Majesty and become Crown land, and may be dealt with under this Act accordingly”. Since leasehold rights and interests cannot “become Crown Land” – noting that under the definition of “Crown land” in s 5 (reproduced at [24] above) it is necessarily land in the physical sense that is referred to – “land” as used here is physical land as distinct from the leasehold rights and interests to which it was subject prior to “forfeiture or premature determination”.

40    Section 299(2) then provides that forthwith upon the determination of the lease “the person in occupation of the land concerned shall give peaceful possession thereof and of all improvements thereon to the Commissioner …”. Once again, it can only be land in the physical sense that is referred to here as being occupied and in respect of which peaceful possession, including improvements, is given up. Even if rights and obligations encompassed by a lease might be thought to be able to be the subject of “occupation”, itself a doubtful proposition, they certainly cannot have “improvements thereon”. Land simply means land, the physical thing, in this context.

41    A resumption under LA62 s 306 is an instance or manner of premature determination of a lease which is expressly excepted from s 299(1). Section 306(1) provides that the Governor in Council may resume “the whole or any part of any holding”. Having regard to the definition of “holding”, that subsection provides for the resumption of the whole or any part of the land held from the Crown by any lessee, ie under a lease. It does not make sense to read that as the resumption of the whole or any part of the rights and obligations arising from or embodied in the lease; it is the physical land that is referred to, in whole or in part. Where the subsection goes on to speak of acquiring “an easement on a holding”, that too must refer to physical land rather than legal rights and interests, such is the nature of an easement.

42    One now gets to s 308. Contrary to a termination that is governed by s 299 which provides for the land to revert to the Crown and “become Crown land”, under s 308(a)(i) the termination of a lease by resumption has the effect that “the land thereby taken shall vest in the Crown freed and discharged from all charges, claims, obligations, estates and interests”. Thus, the section provides for the legal consequences of a resumption which are to erase all pre-existing charges, claims, obligations, estates and interests in the land thereby granting to the Crown the equivalent of absolute ownership of the land. Native title rights and interests do not survive.

43    There is another consideration in relation to the applicant’s contention that “land” in s 308(a)(i) is restricted to incorporeal rights and interests in land. That provision operates to free and discharge the thing that was vested in the Crown from other things, carrying with it the logical implication that the two things must be different, ie the thing that vested in the Crown could not, simultaneously, have been a charge, claim, obligation, estate or interest from which that thing was “freed and discharged”. Yet, on the applicant’s construction, the leasehold itself and all interests arising out of it, vested in the Crown, freed and discharged from themselves. As the State submits, that is a nonsensical construction.

44    Section 308(a)(ii) deals with the resumption of easements, providing that “the rights comprised in the easement shall vest in the Crown”. That stands in stark contrast to the language of the resumed “land” vesting in the Crown under s 308(a)(i). If s 308(a)(i) was intended to apply to incorporeal rights and interests embodied in a “holding” rather than the corporeal land itself, similar language to that used in relation to easements might have been expected. The use of different language, particularly within the same section, suggests a different intended meaning: King v Jones [1972] HCA 44; 128 CLR 221 at 266 per Gibbs J. While this may be a “relatively weak” consideration (Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403 at [124] per Leeming JA, Bathurst CJ and Emmett JA agreeing), there is nothing here to displace it (Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; 293 FCR 330 at [146] per O’Bryan J, Besanko and Lee JJ agreeing). That supports the proposition that “land” in s 308 includes the physical land itself.

45    It will be recalled (see [26] above) that s 308(b) refers to ss 312 and 313, governing the effect of resumptions under those provisions. At the time of the Lot 89 resumption in October 1987, s 312 had been repealed (by s 9 of the Land Act Amendment Act 1986 (Qld)). But at the time of the Lot 74 resumption in July 1984, s 312 still provided for the resumption from pastoral holdings without compensation, subject to certain conditions, of “part of the holding” (s 312(2)) described as “land comprised therein of an area or aggregate not exceeding one-third of the total area thereof” (s 312(1)(a)) or “land comprised in a pastoral development holding of an area or aggregate not exceeding such area as was specified” (s 312(1)(b)). Those references to “land” defined by area or aggregate can only be to physical land, thus the “land thereby taken” which vests in the Crown and which is freed of all charges, claims, obligations, estates and interests under s 308(b) must also be physical land.

46    At the time of both resumptions, s 313 provided for the Governor in Council to “resume possession from the lessee” of parts of land subject to a lease which “contains a reservation of part of the land comprised therein for public purposes, and specifies the area of the land reserved, whether or not the land reserved is described so as to identify it”. Similarly, those references to land defined by area and identity can only be to physical land, with the same result for s 313(b).

47    Thus, the references to “land” in s 308(b) are to physical land, which further supports the same conclusion in relation to s 308(a)(i).

48    The above considerations weigh heavily in favour of the conclusion that s 308(a)(i) has the effect of vesting the physical land in the Crown and that the land so vested be freed and discharged from all charges, claims, obligations, estates and interests.

49    In contending that “land” in s 308 means the incorporeal rather than the corporeal, the applicant also refers to the definition of “land” in s 36 of the Acts Interpretation Act 1954 (Qld), ie “unless the contrary intention appears, the following terms shall have the meanings respectively assigned to them … ‘Land’ – Includes messuages, tenements, and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the estate or interest therein, unless where there are words to exclude houses and buildings or to restrict the meaning to tenements of some particular tenure or to some particular estate or interest”. That definition is a “[b]lending of the physical and the abstract” which “implicitly treats ‘the physical substance’ as ‘the natural and primary meaning of the word’ and operates as ‘merely extending’ that natural and primary meaning”: La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32; 424 ALR 391 at [13] and [15] per Gageler CJ, quoting from Commonwealth v New South Wales [1923] HCA 34; 33 CLR 1 at 49-50 per Isaacs J.

50    There are two reasons why that extended definition of land does not assist the applicant’s case. First, it includes land as a corporeal so the effect of s 308 would still be that the land itself was freed of all right and interests, etc. That is to say, “estates and interests in land, while included within the definition, are not exclusive of the common and ordinary meaning of ‘land’”: La Perouse at [219] and [226] per Jagot J; see also at [15] per Gageler CJ as already referred to and at [125] per Edelman J. Second, a contrary intention does appear, in that the construction of the relevant provisions above reveals that the objective intention of the legislature was that “land” in s 308 does not mean only incorporeal rights and interests in relation to the physical land. The Acts Interpretation Act is therefore of no assistance to the applicant’s case.

51    Given the applicant’s submissions in reliance on it, it is necessary to consider Western Australia v Ward. Two relevant resumptions were considered in the case, the one having the effect of extinguishing all native title rights and interests and the other not having that effect. The applicant relies on the latter as being analogous to the resumptions that are the subject of the present case.

52    The one resumption in Western Australia v Ward was under s 10 of the Public Works Act 1902 (WA), the effects of which were governed by s 18 (dealt with at [278]ff). Section 18(1) provided that upon the publication of the relevant notice the land “shall, by force of this Act, be vested in Her Majesty, or the local authority, for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of way, or other easements whatsoever”. Much like LA62 s 308(a)(i) in the present case, s 18(2) deemed the estate and interest of every person in such land, whether legal or equitable, to have been converted into a claim for compensation.

53    Notwithstanding what was described as “[w]hat might otherwise be thought to be the oddity of an estate in fee simple being vested in the Crown” (at [204]), it was held that the vesting of the estate in fee simple following the resumption had the effect of extinguishing all native title to the land (at [278]-[280] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and [832] per Callinan J). In both judgments, the reasoning included reliance on the wording of the statutory provision and the relevant notice providing for the land being freed and discharged from all charges, claims, obligations, estates and interests.

54    The other resumption in Western Australia v Ward was under s 109 of the Land Act 1933 (WA) (repealed) which authorised the Governor to “resume, enter upon, and dispose of the whole or any part of the land comprised in any pastoral lease” (at [201]). The resumption under that provision did not mean “that the Crown acquired all right and title to the land”; rather, it “brought the relevant pastoral lease to an end” and “did not give the Crown any larger title to the land than the radical title acquired at sovereignty” (at [208]). Such a resumption did not extinguish native title (at [208] and [468(11)] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; at [590] and [599] per Kirby J).

55    The applicant submits that since LA62 s 308, unlike s 18 of the Public Works Act considered in Western Australia v Ward, does not provide that on resumption the land is vested in the Crown for an estate in fee simple (acknowledging also that to do so would be an oddity), the present case is not analogous to the first form of resumption but is rather analogous to the second form of resumption considered above. I do not accept that submission. That s 18 of the Public Works Act provided expressly for the land to vest in the Crown for an estate in fee simple was not determinative. The whole of the provision was quoted and referred to, including the stated effect of that vesting being that the land would be freed and discharged from, amongst other things, all charges, obligations, estates and interests which would be deemed to be converted into claims for compensation. That is materially the same as LA62 s 308, noting also that such a vesting provision can have the result that it vests the fee simple in the Crown even though it does not expressly say so: Metropolitan Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1183 at [38] and [75] per McDonald J. In contrast, s 109 of the Land Act considered in Western Australia v Ward had no similar wording and might be thought to be analogous to LA62 s 299.

56    In the circumstances, Western Australia v Ward is authority against, and not in favour of, the applicant in the present case.

57    Once having reached the conclusion that “land” in s 308 includes the physical land and not only some metaphysical bundle of rights and obligations in relation to the land, the express consequence of the resumptions being that the land is freed and discharged of all charges, etc, cannot be avoided; the result is that (subject to the procedural fairness point dealt with below) native title was extinguished by the resumption proclamations.

Procedural Fairness

The applicant’s procedural fairness case

58    As mentioned earlier, the applicant raises an alternative procedural fairness case in the event that (as I have concluded above) the resumption proclamations are held to have otherwise extinguished native title rights.

59    There are a number of steps to this alternative case.

60    First, the applicant submits that a duty to observe procedural fairness is implied into the scheme of LA62 Pt 10, Div XI, and particularly s 306. The scope of that duty is said to include a duty to consult any persons with property interests in parcels being resumed. The applicant submits that “the irreducible minimum content of the duty of procedural fairness is the duty to notify”.

61    The applicant then submits that the native title rights held by the Guugu Yimidhiirr people are proprietary interests, which, as the premise of this alternative argument, have been extinguished. As such, it submits that the native title holders were entitled to procedural fairness before the decision to resume the land was made, and that plainly the native title holders received no notice and were not consulted in any way in this case (which is not in dispute), the consequence being that the resumption decisions were affected by jurisdictional error.

62    The applicant submits that this does not have the consequence that the present reserves are invalidly created. Rather, the proclamations are said to be “past acts” within the meaning of NTA s 228(2), as “other act[s]” which occurred before 1 January 1994 in relation to land where native title existed. As the proclamations do not fall within categories A to C in NTA ss 229-231, they are “Category D past acts” under s 232. They are also said to be “attributable” to the State of Queensland under s 239(a), having been done by the Crown in right of the State of Queensland.

63    Having categorised the proclamations as Category D past acts attributable to the State, the applicant submits that the effect of the statutory scheme is that the proclamations are validated (despite the failure to provide procedural fairness), but do not have the effect of extinguishing native title. NTA s 19 relevantly provides that past acts attributable to a State are taken to have always been valid, if a law of that State contains provisions to the same effect as NTA s 15. NTA s 15(1)(d) relevantly provides that the “non-extinguishment principle” applies to a category D past act attributable to the Commonwealth. NTA s 238 explains that where the non-extinguishment principle applies, rights created by a past act will prevail over non-exclusive native title rights but also provides that native title rights are not extinguished by the past act. The equivalent State law to NTA s 15(1)(d), as contemplated by NTA s 19, is NTQA s 13, which relevantly provides that the non-extinguishment principle applies to a category D past act (as those concepts are defined in the NTA). As such, the applicant submits that the combined effect of these provisions is that the proclamations validly suppress the non-exclusive rights of Guugu Yimidhirr native title holders as long as the vesting operates, but that their native title rights are not extinguished.

64    The applicant also submits that NTA s 23B must be considered and does not apply here. If the proclamations are taken to have vested a fee simple estate (or equivalent) in the Crown under LA62 s 308(a)(i), NTA s 23B(3) might apply to make the vesting a valid previous exclusive possession act, which would have the effect of extinguishing native title (NTA s 23E and NTQA s 20). However, the applicant submits that the vesting here does not qualify as a previous exclusive possession act because of the operation of NTA s 23B(9C), which relevantly provides that a vesting of land in the Crown is not a previous exclusive possession act unless one of two criteria is satisfied. The criterion in s 23B(9C)(a), that the vesting extinguishes native title “apart from [the NTA]”, is not satisfied, given that as detailed above it is only provisions of the NTA and NTQA which obviate the jurisdictional error otherwise said to affect the proclamations. The criterion in s 23B(9C)(b), which requires that the land is “used to any extent in a way that, apart from [the NTA], extinguishes native title in relation to the land”, is said to have been superseded or rendered inapplicable by the High Court’s decision in Western Australia v Brown [2014] HCA 8; 253 CLR 507, where the doctrine of “inconsistent use” is said now not to be a source of extinguishment: see particularly [37]-[38] and [60]-[62]. As such, on the basis that neither of the criteria in NTA s 23B(9C) apply, the applicant submits that the vesting was not a previous exclusive possession act and thereby did not extinguish native title.

Consideration of the procedural fairness case

65    The applicant’s procedural fairness case was raised for the first time in written submissions in reply shortly before the hearing. Perhaps as a consequence of that, the State confined its submissions on the point to the question whether the resumption decisions were affected by jurisdictional error and made no submissions on that part of the applicant’s argument that relies on the NTA and the NTQA.

66    There is no difficulty with the first step in the applicant’s case, being one of established legal principle. The power to make a resumption proclamation is a statutory power, arising under LA62, the exercise of which is plainly capable of having an adverse effect on legally recognised rights or interests, including native title. As such, “the exercise of the power is impliedly conditioned on the observance of procedural fairness”, there being no indication in LA62 that this “‘strong’ common law presumption” was intended to be displaced by the statutory scheme: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 280 CLR 515 at [33]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [75].

67    However, a difficulty arises as to the scope of the applicable procedural fairness obligation in relation to native title holders, in particular in circumstances where at the relevant times native title was not yet recognised by the common law of Australia and no one – not the holders of native title nor the State Government decision makers – could reasonably have known that such rights existed in a manner enforceable at common law.

68    Native title rights and interests are not created by and do not derive from the common law: Commonwealth v Yunupingu at [58], citing Commonwealth v Yarmirr [2001] HCA 56; 208 CLR 1 at [48]. However, in Mabo No 2, the High Court accepted that native title rights, although ascertained by reference to traditional laws and customs, are enforceable in Australian courts as common law rights and interests: Commonwealth v Yunupingu at [60]-[61], citing Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 at 84 per Brennan CJ and 237-238 per Kirby J. In doing so, the Court “declared the content of the common law upon a particular view which now was taken of past historical events”: Wik at 182-4 per Gummow J.

69    This is sometimes referred to as the “declaratory theory of the common law”, whereby the common law, evidenced by judicial reasons for decision and its content having been declared by the courts at a particular time, “may in truth be – and be subsequently declared to be – different”: Western Australia v Commonwealth [Native Title Act Case] [1995] HCA 47; 183 CLR 373 at 485 (and describing Mabo No 2 as a “dramatic example” of such a declaration at 486); see also Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at 584-586 per Brennan J. Such a declaration decides what the common law is and always has been: Atlas Tiles Ltd v Briers [1978] HCA 37; 144 CLR 202 at 208 per Barwick CJ (unaffected by Cullen v Trappell [1980] HCA 10; 146 CLR 1); Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 at 586 per Barwick CJ; Giannarelli at 585-586. Thus, the effect of Mabo No 2 was to recognise at common law pre-existing native title rights that survived the acquisition of sovereignty and which, absent extinguishment, “burdened” the Crown’s radical title that was assumed upon settlement: Mabo No 2 at 57 and 69 per Brennan J; Commonwealth v Yunupingu at [64]-[65], [121].

70    The effect of the above is that at the time of the resumptions, the Guugu Yimidhirr people possessed native title rights and interests in respect of the relevant areas. However, in circumstances where it had not yet been recognised that the common law of Australia had not yet recognised such native title rights, it was impossible for any relevant party, whether it be native title holders, the State or anyone else, to have known that. As the State submitted, while the effect of Mabo No 2 was retrospective in its recognition of native title rights pre-existing sovereignty, it did not deem people to retrospectively have knowledge of those rights. This is the basis for the State’s submission that the scope of any procedural fairness obligation applicable to the resumption declarations could not constitute a standard that was impossible to ascertain and impossible to comply with.

71    In Kioa v West [1985] HCA 81; 159 CLR 550, Brennan J explained that “the contents of natural justice range from a full-blown trial into nothingness” (at 615). His Honour went on to reject the notion that “there is an irreducible minimum required by the principles of natural justice, namely, that ‘the person concerned should have a reasonable opportunity of presenting his case’” (citing Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ), instead preferring a formulation whereby unless explicitly excluded, the principles of natural justice impliedly condition all exercises of a statutory power, but that “in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred” (at 615).

72    “Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other”: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367] per Gageler J, Crennan J agreeing at [227].

73    The precise content of the obligation “varies to reflect the common law’s perception of what is necessary for procedural fairness in the circumstances of the particular case”: Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; 169 CLR 648 per Denae J at 652.

74    Although in some cases what procedural fairness requires extends to “nothingness”, “cases of this kind will be ‘exceptional’”: Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; 426 ALR 212 at [26]-[28] and [34], citing Brennan J in Kioa v West at 615-16 and 620-621.

75    Justice Brennan also explained in Kioa v West (at 627) that:

[w]hat the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or any further circumstances which, had he acted reasonably and fairly, he would then have known. … [H]is observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. … When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair. …

76    This passage was also cited by Gageler J in CPCF where his Honour noted that “[o]rdinarily, procedural fairness does not require providing … any greater opportunity to be heard than is reasonable in all the circumstances” (at [367]). See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [137] per Katzmann and Rangiah JJ; Imad v Director-General of Security [2024] FCAFC 138; 305 FCR 523 at [103] per Bromwich, Thawley and Shariff JJ.

77    There is a qualification with regard to fairness in the circumstances being limited to what the decision maker knew at the time of making the decision. That is that the assessment of what is procedurally fair in the circumstances is not limited to the material before the decision maker at the time: Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23 at [77]-[79] per Basten JA, Handley AJA agreeing at [110], citing Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [4] per Gleeson CJ and [70] per Gaudron and Gummow JJ.

78    That qualification is not relevant to the present case – there was no material, or evidence in any form, that could have been available to anyone at the time on which a conclusion could or should have been reached that native title holders had an interest in the proposed resumptions and should therefore have been given notice in advance. The relevant decision makers could not, even on reasonable inquiry, have known that there were any native title rights and interests that might have been affected by the resumption decisions. This is an “exceptional” case as referred to by Brennan J. There was therefore no obligation on them to take any steps, such as to notify native title holders, in relation to procedural fairness.

79    This conclusion is fortified by considering the approach to extinguishment of native title generally. As was submitted by the State, the shift from purposive construction to a focus on inconsistency of rights as the criterion for extinguishment of native title arose from the difficulty in seeking to ascertain an intention to extinguish rights in legislation that pre-dated Mabo No 2, given that those rights were not identifiable at the time the legislation was passed: see Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [31] per French CJ and Crennan J, discussing Wik at 184 per Gummow J. I accept the State’s submission that the same difficulty applies when considering any applicable procedural fairness obligation, in that no decision maker could have identified that the relevant rights were even capable of existing, let alone being affected by the resumptions, at the time of the decision. As Basten JA stated in Castle v Director-General State Emergency Service [2008] NSWCA 231 at [6], “[t]he obligation must be capable of identification and fulfilment, in a reasonable and practical sense, prior to the making of the decision” in respect of which “[s]ome guidance may be obtained by asking whether it was reasonable to expect the officer exercising a particular power to identify, in advance, the applicant as a person whose rights or interests may be affected and the way in which the proposed affectation would occur”. That plainly was not the case here.

80    Furthermore, even if contrary to the above it was thought that the State was subject to and failed to comply with the implied obligation of procedural fairness by failing to notify native title holders of the resumption proclamations, such non-compliance would not have been material. While “it is no easy task” for a Court to be satisfied that the loss of an opportunity to make submissions or put on evidence did not deprive the applicant of the possibility of a successful outcome (LPDT v Minister for Immigration and Citizenship [2024] HCA 12; 280 CLR 321 at [15]), in this case the native title holders could not have known that they held rights recognised and enforceable at common law. Thus, any notice to them of the intended resumptions could not as a realistic possibility have resulted in them making any submission to the decision makers in advance of the decisions. Therefore, “it can be affirmatively concluded that the outcome would inevitably have been the same”: LPDT at [16].

81    For those reasons, the applicant’s procedural fairness argument fails. It is not necessary to consider the further steps in the argument, all of which depend on the resumption decisions being affected by jurisdictional error on account of a failure to observe procedural fairness. Moreover, as the State and the Council made no submissions on those aspects, it would be inadvisable to do so.

Disposition

82    For those reasons, both separate questions fall to be answered “Yes”.

83    No party has sought a costs order.

Associate:

Dated:    29 May 2026