North Ganalanja Aboriginal Corporation & Waanyi People v Queensland [1996] HCA 2; (1996) 185 CLR 595 (21 March 1996)

HIGH COURT OF AUSTRALIA

NORTH GANALANJA ABORIGINAL CORPORATION AND ANOR FOR AND ON BEHALF OF THE WAANYI PEOPLE v THE STATE OF QUEENSLAND AND ORS

F.C. 96/007

Number of pages - 66

[1996] HCA 2; (1996) 185 CLR 595

Aboriginal People - Administrative Law - Constitutional Law

HIGH COURT OF AUSTRALIA

BRENNAN CJ(1), DAWSON(1), TOOHEY(1), GAUDRON(1), McHUGH(2), GUMMOW(1) AND KIRBY(3) JJ

CATCHWORDS

Aboriginal People - Native Title.

Administrative Law - Claim for Determination of Native Title - Function of Registrar, President of National Native Title Tribunal - Prima facie claim - Fairly arguable question of law - Information to be taken into account.

Constitutional Law - Judicial Power - Advisory Opinions.

Native Title Act 1993 (Cth) s 63.

HEARING

CANBERRA, 7-8 February 1996

8:2:1996 (Date of Order) 21:3:1996 (Reasons for Judgment Delivered)

ORDER

1 The applicants have special leave to appeal from the whole of the judgment of the Full Court of the Federal Court of Australia given on 1 November 1995.

2 The appeal be allowed.

3 The orders of the Full Court of the Federal Court made 1 November 1995 be 4 In lieu of the said orders of the Full Court of the Federal Court, order:

(i) that the appeal from the decision of the President of the National Native Title Tribunal dated 14 February 1995 be allowed with costs;

(ii) that the decision of the President of the National Native Title Tribunal dated 14 February 1995 be set aside;

(iii) that the President direct the Registrar of the National Native Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants' Application for a Determination of Native Title No QN94/9 which was lodged on 24 June 1994.

5 Order 4(iii) be stayed until 4.00 pm on 13 February 1996.

6 Order the respondents to pay the applicants the costs of this appeal

limited in the case of the first respondent to the costs incurred in or in connection with paragraph 2(aa) of the grounds of appeal in the amended draft notice of appeal.

DECISION

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON AND GUMMOW JJ. The North Ganalanja Aboriginal Corporation and the Bidanggu Aboriginal Corporation on behalf of the Waanyi People (the applicants) made an application under the Native Title Act 1993 (Cth) ("the Act") for a determination of native title to a parcel of land in the vicinity of the Lawn Hills-Lilydale Road in north west Queensland. The land the subject of the claim was a Camping and Water Reserve established by proclamation (1) known locally as "Ten-Mile Water Hole". On 24 June 1994, the application was given to the Registrar of the National Native Title Tribunal ("the NNTT") in accordance with s 61(2) of the Act (2).

2. On 30 June 1994, the solicitors for Century Zinc Limited and CRA Exploration Pty Ltd (the second respondents in this Court) wrote to the Registrar of the NNTT contending that native title had been extinguished over the subject land by reason of the grant of 2 pastoral leases. They furnished the Registrar with copies of various documents that were said to show dealings affecting the subject land on which the second respondents rested their submission that native title had been extinguished. The Registrar forwarded this material to the Carpentaria Land Council through which the applicants replied, submitting that native title had not been extinguished. The Registrar formed the opinion that prima facie the applicants' claim could not be made out. Accordingly, she referred the application to the President of the NNTT pursuant to s 63 of the Act. That section reads as follows:

"(1) If the requirements of section 62 are complied with in

relation to the application, the Registrar must accept it, unless he or she is of the opinion:

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

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

(2) If the Registrar is of the opinion mentioned in

paragraph (1)(a) or (b), the Registrar must refer the application to a presidential member.

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

presidential member must:

(a) advise the applicant in writing of the fact and give the

applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and

(b) if the applicant so satisfies the presidential member -

direct the Registrar to accept the application; and

(c) if the applicant does not so satisfy the presidential

member - direct the Registrar not to accept the application.

(4) If the presidential member is not of the same opinion as

the Registrar, the presidential member must direct the Registrar to accept the application."

3. When the President (French J) considered the application, he agreed with the Registrar's opinion that prima facie the claim could not be made out. He based his opinion "on evidence of the extinguishment of native title by the grant of pastoral leases over the land" (3). On 18 August 1994, the President advised the applicants that he had formed that opinion and that the applicants would be given a reasonable opportunity to show that a prima facie claim could be made out. Because of the importance of the legal and factual issues involved and their direct interest in the outcome, the State of Queensland, Century Zinc Ltd and CRA Exploration Pty Ltd were invited by the President to make submissions. Thereafter extensive submissions were made by each of the applicants and respondents. In a preliminary ruling on 15 September 1994, the President held, inter alia, that (4):

"6. The applicants are not obliged to lodge evidence in

support of the application to make out a prima facie case.

7. The registrar may, but is not obliged to, make inquiries

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

...

9. An applicant who is invited, under s 63(3), to show the

presidential member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself.

10. For the purpose of showing that a prima facie claim can

be made out it is not necessary for the applicant to show that it has evidence to negative extinguishment by legislative or executive act.

11. The presidential member may have regard to evidence of

extinguishing events in determining whether a prima facie claim can be made out.

12. The presidential member in deciding whether a prima

facie claim can be made out can form a concluded view on a question of law which, if decided one way would be fatal to the application.

...

14. The issues to be addressed by the applicants for the

purpose of showing that a prima facie claim can be made out will be:

(a) the existence or availability of evidence capable of

justifying a finding (extinguishment apart) that native title exists;

(b) the effect of the known land tenure history on the

continuance of native title."

After receiving further submissions from the applicants and respondents, the President ruled on 14 February 1995 that, being bound by the judgments of this Court in Mabo (No 2) (5), he was not satisfied that a prima facie claim could be made out.

4. In his reasons for that decision, the President said (6):

"In my opinion, the decision of the High Court in Mabo (No

2) establishes a principle that generally speaking the grant of a leasehold interest conferring rights of exclusive possession upon the lessee unqualified by any right of access in favour of Aboriginal people is inconsistent with the continuance of native title rights and interests. That general proposition is subject to the terms and conditions of particular leases which, for one reason or another, may negative the characterisation of the grant as intending extinguishment. Thus, the short term of a lease or wide rights of general public access may defeat a contention that it has extinguished native title. However where native title is extinguished the common law position seems to be that it cannot be revived by the common law."

He added that "the grant of exclusive possession associated with the leasehold interest unqualified by express or implied reservations for Aboriginal people is legally inconsistent with the continuation of any rights in the land other than those created by the Crown" (7).

5. The President applied these principles to the tenure history of the subject land which had been provided by the State of Queensland. The principal evidence of those facts had come from an officer of the Queensland Department of Lands. There was an entry in the Register of runs leased under the Pastoral Leases Act 1869 (Q) purporting to show that a lease of an area known as Bauhinia Vale West No 1 commencing on 1 July 1883 had been approved by Executive Minute on 27 September 1882. However, a search had failed to locate an instrument of lease corresponding to the entry in the Register. The President thought that no instrument of lease had issued but nevertheless found that there had been a grant of a lease of the land by the Executive Council without any reservation in favour of Aborigines ("the 1883 lease"). He further held that the 1883 lease had been extended and then surrendered and a new lease commenced as from 1 January 1905.

6. The President referred to a notification in the Queensland Government Gazette of 30 January 1904 (8) which classified the Bauhinia Vale West No 1 Run lease in Class IV under the Land Act 1902 (Q) resulting in its being grouped together with other pastoral runs under the designation of Lawn Hill Holding. On 14 November 1907, a lease under the Land Act 1902 (Q) of Lawn Hill Holding issued for a term of 42 years commencing on 1 July 1904 ("the 1904 lease"). It contained no reservation in favour of Aboriginal persons. The President further found that an area of land including the parcel that was known as the Ten Mile Water Hole had been surrendered prior to the issue of an instrument of lease in November 1907 which excluded the area surrendered from the area of the lease as from 1 April 1904. The Ten Mile Water Hole as a temporary reserve for camping and water purposes was gazetted on 8 June 1907. The area reserved was the land the subject of the application given to the Registrar.

7. In the President's view, the efficacy of the grant of a lease did not depend on the issue of any instrument of lease. He concluded that any subsisting native title had been extinguished by the 1883 lease and, if the 1883 lease had not extinguished native title, the later lease would have done so. Accordingly, pursuant to s 63(3)(c) of the Act, he directed the Registrar not to accept the application.

8. The applicants appealed to the Federal Court from the decision of the President. The jurisdiction of the Federal Court to entertain such an appeal is conferred by s 169, the relevant provisions of which read as follows:

"(2) If a person has given an application to the Registrar

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

...

(5) The Court has jurisdiction to hear and determine appeals

instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

(6) The Court must hear and determine the appeal and may

make such order as it thinks appropriate by reason of its decision.

(7) Without limiting subsection (6), the orders that may be

made by the Court on an appeal include:

(a) an order affirming or setting aside the decision or

determination of the Tribunal; or

(b) an order remitting the case to be heard and decided

again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

The grounds of appeal to the Federal Court included a submission that the President had been in error -

"1. in deciding to invite the State of Queensland and

Century Zinc Limited and CRA Exploration Pty Ltd to make submissions to him concerning the acceptance of the application;

2. in deciding and proceeding on the basis that the

Registrar may receive and have regard to unsolicited information from third parties in determining whether it can be said at the outset that a claim could not be made out;

...

7. in proceeding on the basis that where there is a question

of law to be considered by the President acting under para 63(3)(a) of the Native Title Act, 1993 the President should resolve that question for the purpose of deciding whether a prima facie claim can be made out, and that it is not sufficient for that purpose to conclude that the question is arguable;

8. in proceeding to form a concluded view on certain

questions of law, in particular whether certain acts were sufficient in law to grant an interest in the subject land and whether such interests have extinguished native title;

..."

9. Although the present respondents had been informed of the applicants' application and had been invited by the President to make submissions in the proceeding which he conducted under s 63(3)(a), the present respondents were not formally "parties" to those proceedings. As Jenkinson J pointed out in his judgment in the Full Court of the Federal Court (9):

"The only parties to the application (ie, the application

for determination of native title) were the applicants. The other persons who were heard by Justice French were heard, and evidence adduced by them was received, because he chose to take that course in order that he might the more effectively perform the function conferred on him by s 63(3). Sections 66, 67 and 68 are so drawn that a person other than an applicant can become a party in relation to a native title determination application only after the application has been accepted under s 63. At times in his reasons for decision Justice French refers to 'the parties', as I would suppose for ease of reference. His Honour could not in my opinion make persons other than the applicants parties."

When the applicants appealed to the Federal Court, they filed a notice of appeal (10) and thereafter, by an order of the Federal Court (Drummond J) dated 29 March 1995, the respondents were joined as parties to the appeal (11).

10. The Full Court of the Federal Court by majority (Jenkinson and Hill JJ, Lee J dissenting) dismissed the appeal. The Judges of the Full Court formed a view of the tenure history of the subject land that differed from the findings made by the President. As to the 1883 lease, Jenkinson J thought that an instrument of lease under s 25 of the Pastoral Leases Act 1869 (Q) may have issued containing a reservation in favour of Aboriginal people and that that lease would not have extinguished native title. His Honour therefore held (12):

"Justice French's conclusion ought in my opinion to have

been that the grant of the lease and the lack of available evidence of the issue of the instrument did not cause him to fail of satisfaction that a prima facie claim can be made out." Hill J also rejected the President's finding (13):

"Having regard to these possible inferences and open facts,

it was, in my view, inappropriate for the learned president to have formed the view that the present was a case where the applicants could not make out a prima facie claim, having regard to the 1883 lease. In not doing so, in my view, his Honour went beyond the task required by s 63(3) and was in error."

Lee J held that (14):

"The president ... should have been satisfied that the

ability of the applicants to make out a 'prima facie' claim was unaffected by the 1883 lease."

However, a majority of the Full Court held that the 1904 lease extinguished native title to the subject land. Hill J, with whom Jenkinson J agreed on this point, found that, irrespective of the issue of the instrument of lease in 1907 (after the subject land had been surrendered), "the term of years granted took effect as a lease from 1 July 1904" (15). As the instrument of lease actually issued contained no reservations favourable to the applicants, his Honour held that the 1904 lease operated to extinguish native title in the subject land. Lee J formed a view of the effect of the 1904 lease different from that of the majority, holding it to be (16) "plainly arguable that by 6 June 1907 the whole of the area the subject of the application to the tribunal had been excised from the area in respect of which the pastoral tenant had an entitlement to receive a lease under the 1902 Act and that the vesting of the interest which occurred upon execution and issue of the instrument of lease on 14 November 1907 did not vest an interest capable of extinguishing native title over an area that was then a proclaimed reserve excised from the pastoral holding."

In any event, in his Honour's view it was (17)

"arguable that the interests created by the Crown as

pastoral leases - a course necessitated by the need to regulate the practice of settlers of 'squatting' on unalienated Crown land - were intended to be used, or enjoyed, in coexistence with indigenous title and that the granting of pastoral leases over such areas did not carry with it an intent by the Crown to extinguish native title".

11. A majority of the Full Court, upholding the President's finding that any native title had been extinguished prior to the making of the application, dismissed the appeal. The President's direction to the Registrar not to accept the application stood.

Special leave to appeal

12. The applicants sought special leave to appeal to this Court from the judgment of the Full Court. Three points were raised in the amended draft notice of appeal in support of the application for special leave. The first challenged the procedure adopted by the President leading to the direction he gave the Registrar to reject the application; the second sought a ruling that the 1904 lease was not effective to extinguish native title (18); and the third point, related to the second, asserted that the Parliament of Queensland had no power to authorise the grant of leases which would extinguish native title.

13. The second and third points would fall for determination if the applicants' argument on the first point failed. The applicants contended that the President wrongly formed "the same opinion" as the Registrar, namely, that prima facie the applicants' claim could not be made out. If the President ought not to have formed that opinion, s 63(4) of the Act required him to direct the Registrar to accept the application. No proceeding under s 63(3)(a) was required. Had a proceeding under s 63(3)(a) been required, the applicants contend that the President was bound to be satisfied that the applicants could make out a prima facie case and was required by s 63(3)(b) to direct the Registrar to accept the application. If it be right to hold that the President was required to direct the Registrar to accept the application, there was no properly constituted proceeding in which he could determine the second and third points. Similarly, there was no properly constituted proceeding in which the Full Court could determine those points or provide any binding precedent upon them and, it follows, none before this Court. If this Court were to proceed to determine the second and third points, it would be delivering an advisory opinion. That is beyond the constitutional empowerment of this Court in its appellate (19) as in its original (20) jurisdiction. However helpful it may be for the respondents and interveners to have the opinion of this Court upon the effect of pastoral leases on native title, the question can be answered judicially only in the determination of justiciable issues in properly constituted proceedings. The law is not judicially administered by judicial declarations of its content "divorced from any attempt to administer that law" (21).

14. There are situations in which special leave to appeal may be refused because, although the applicant has an arguable point, there is a second point which will cause the appeal to fail. The respondents and interveners urged a similar approach in this case. They submitted that this Court should determine the second point, arguing that, if the point is decided against the applicants, their claim must inevitably fail. The argument would be correct only if the applicants had been permitted to make a claim. And if they should have been permitted to make a claim, it would be an injustice to deprive them of the procedural rights flowing from its acceptance, including the right to have it mediated (22) and, perhaps, agreed under s 73 of the Act. Therefore it is necessary to abstain from considering the second and third points until the first point is decided.

15. Although the respondents and the interveners submitted that the Court should determine the second point, which is clearly a question of great public importance, that point can fall for determination only if the first point is decided against the applicants. The first point is itself of great public importance, as it relates to the procedure affecting claims for the determination of native title, their consideration by interested parties and the manner in which those claims are to be resolved. Thus special leave should be granted limited, in the first instance, to the first point.

The statutory scheme for dealing with applications

16. To construe the provisions of the Act governing the acceptance and rejection of claims for the determination of native title, some reference is desirable to the background of legal principle in which those provisions operate.

17. In Mabo (No 2) (23) it was held that native title survived the Crown's acquisition of sovereignty over the territories of Australia but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title (24). This declaration of the common law overruled earlier decisions of other courts that had held, or were widely understood to have held, that native title had been extinguished on and by the acquisition of sovereignty by the Crown. In Mabo (No 1) (25) it was held that the Racial Discrimination Act 1975 (Cth) protected the holders of native title against the extinguishment of their title, as those holders were clothed

"with the same immunity from legislative interference with

their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community."

18. It was inevitable that the recognition of native title by the common law and its protection by the Racial Discrimination Act would generate novel legal problems relating to the title to land claimed by Aborigines in accordance with traditional laws and customs. The Act addressed some of these problems. Although a claim to native title as defined in Mabo (No 2) (26) was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources) to determine. If native title were claimed, the preservation of the status quo while the claim was awaiting determination would pose a particular problem, not only for the claimants and the Crown but also for those who might be seeking access to the land for mining or other non-traditional purposes. The preamble to the Act indicates the legislative preference for resolving these problems by negotiation. It contains the following:

"In future, acts that affect native title should only be

able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

A special procedure needs to be available for the just and

proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character."

19. The remoteness of many Aboriginal communities and their lack of familiarity with the legal criteria for determination of native title posed practical difficulties for many people who might be entitled to claim native title. Moreover, the task of tracing the tenure history of any parcel of land during the previous 200 years was likely to be beyond the resources of many would-be claimants. There was a perceived commercial need for despatch in the settlement of claims for native title and in the administrative disposition of applications by miners and others seeking access to unalienated land. It was expected - and it seems that the expectation has been fulfilled - that many applications would be made throughout Australia for determination of native title. The Court was informed that 180 applications for determination of native title were received by the Tribunal between the coming into operation of the Act on 1 January 1994 and 30 January 1996.

20. These were some of the "mischiefs" which the Act was enacted to address (27). Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued. The Act provided a set of solutions for these problems as the following brief conspectus shows. The Act is divided into 15 Parts. Part 2 of the Act (ss 10-60) is headed "Native Title", Pt 3 (ss 61-79) "Applications", and Pt 4 (ss 80-94) "Determinations of the Federal Court".

21. Once a claim for the determination of native title is accepted, a procedure is set in train whereby the Registrar notifies the relevant State or Territory government, persons holding proprietary interests and other bodies and persons listed in s 66(2)(a), and also notifies the public (s 66(2)(b)). Those to whom notice is given under s 66(2)(a) and other persons whose interests may be affected by the determination may become parties to the application (28). If an application which has been accepted under s 63 is unopposed, then the NNTT may make a determination pursuant to s 70(1). This states:

"In the case of an application accepted under section 63

that is unopposed, the Tribunal may make a determination in, or consistent with, the terms sought by the applicant if:

(a) the Tribunal is satisfied that the applicant has made

out a prima facie case for a determination in those terms; and

(b) the Tribunal considers the determination to be just and

equitable in all the circumstances."

If the parties to the application agree on the terms of a determination of the application consistent with the powers of the NNTT and the NNTT is satisfied that such a determination would be "appropriate in the circumstances", the NNTT must make a determination in accordance with those terms (29). Failing agreement, the matter goes to mediation and thence either to agreement by the parties and determination in accordance therewith (30) or to the Federal Court for judicial determination (31). The NNTT is obliged to hold an inquiry before it makes a determination of native title (32). Section 148 states:

"The Tribunal may dismiss an application, at any stage of

the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application."

22. It will be noted that the phrase "prima facie" appears not only in s 63(1)(b) and in s 63(3)(a), but also in s 70 and s 148. In s 63 it appears respectively in the expressions "prima facie the claim cannot be made out" and "a prima facie claim". In the other provisions, which relevantly speak to the situation after acceptance of the claim, the expression is "a prima facie case". The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase "prima facie" is:

"At first sight; on the face of it; as appears at first

sight without investigation" (33).

In s 63, the phrase relates to the interest or title to which an applicant may be entitled on the face of information contained in and the material accompanying the application.

23. Sub-division B of Div 3 of Pt 2 of the Act denies the Governments of the Commonwealth, States and Territories power (34) to confer, inter alia, mining rights (35) in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant (36) and a procedure is followed through which ordinarily (37) requires the Government to negotiate with the claimants and the miner. The negotiation is assisted, if desired, by mediation by the NNTT or other arbitral body (38). The procedure may terminate either in an agreement (39) or in a determination by the NNTT or other arbitral body that the Government may or may not confer the mining rights in question (or some other interest to which Sub-div B applies) or may do so subject to specified conditions (40). Time limits for applying for and for making of determinations of this kind are prescribed (41). Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.

24. It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.

25. A claim of native title requires an examination of facts that fall broadly into two categories: the continuity of the connection of the claimants and their ancestors with the land in which native title is claimed and the "tenure history" of that land so far as it appears from Crown grant, Crown licence or Crown use. In recognition of the fact that some applicants for the determination of native title may be unfamiliar with the requirements of the Act and may not have the resources to conduct searches of historical or other documents that may be required to support the application, s 78(1) confers on the Registrar the function of rendering "such assistance as the Registrar considers reasonable to help people prepare applications and accompanying material".

26. If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims.

27. In the present case, that inversion occurred because of a mistaken appreciation of the effect and operation of the Act in three respects: (i) the ex parte character of the procedure for making an application for determination of native title and the limitation the ex parte procedure imposes on the material to be considered; (ii) the administrative nature of the opinion to be formed by the Registrar and the presidential member under s 63; and (iii) the significance of legal uncertainty to the administrative decisions whether a prima facie claim could be made out.

(i) Ex parte character of the application

28. Sections 61 to 64 of the Act govern the functions of the only persons concerned with the making and the initial acceptance or rejection of an application for determination of native title. Section 61(1) authorises, amongst others, persons "claiming to hold the native title" to make a native title determination application (42). Section 61(2) requires an application to "be in the prescribed form and be given to the Registrar" and to "contain such information in relation to the matters sought to be determined as is prescribed". That information is prescribed by reg 5 of the National Native Title Tribunal Regulations. The prescribed information relevant for present purposes is set out in par A8 of Form 1 in Sched 1 to the Regulations:

"Details of all searches conducted with public bodies and

authorities, and of all official title registers searched, and the results of those searches, together with:

(a) a copy of any documents that record an existing or

expired interest granted over any part of the area covered by the application; and

(b) a copy of the documents of title issued as evidence of

the existing or expired interest."

29. Section 62(2) requires an application for a native title determination by a person claiming to hold native title to "be accompanied by any prescribed documents". The categories of prescribed accompanying documents are specified by reg 6(1) of the Regulations. The prescribed accompanying documents are "the documents specified in Form 1". For present purposes, the relevant documents are those specified in sub-pars (a) and (b) of par A8 of Form 1. If a presidential member, on reference by the Registrar, considers that the requirements of s 62 are not complied with, s 64 of the Act requires that the applicant be given written notice of that fact and be given a reasonable opportunity to satisfy the presidential member that the requirements are complied with. No such notice was given to the applicants in this case.

30. Apart from the requirement of accompanying documents contained in s 62(2), s 62(1) prescribes certain other material that must be contained in or accompany an application for determination of native title by a person or persons claiming to hold native title. The relevant part of that sub-section reads as follows:

"62 (1) A native title determination application by a

person or persons claiming to hold the native title in relation to an area must:

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

that the applicant:

(i) believes that native title has not been extinguished in

relation to any part of the area; and

(ii) believes that none of the area is covered by an entry

in the National Native Title Register; and

(iii) believes that all of the statements made in the

application are true".

An affidavit complying with this requirement accompanied the application.

31. If the Registrar, after considering the information contained in and the documents accompanying the application, forms the opinion that "prima facie the claim cannot be made out" (43) and refers the application to a presidential member (44), the presidential member must form an opinion on the same question (45) on the same material and documents. If the presidential member's opinion is adverse to the application, the applicant must be given a reasonable opportunity (46) - perhaps by supplementing the material or the documents - to satisfy the presidential member that "a prima facie claim can be made out".

32. The Act makes no provision for any person other than the applicant to have any right to be heard or to furnish information or documents at the stages of the application covered by s 63(3).

33. There is no other party to the application prior to the acceptance of an application for native title determination, other than the applicant. It is only after acceptance that persons other than the applicant can become parties pursuant to s 66. It is only at that stage that the procedure for dealing with the application becomes a multi-party proceeding. Section 66 reads as follows:

"(1) If an application is accepted under section 63, the

Registrar must:

(a) give notice of the application to all persons whose

interests may be affected by a determination in relation to the application; and

(b) if the application is a native title determination

application by a person or persons claiming to hold the native title - record details of the application in the Register of Native Title Claims.

(2) The Registrar is taken to have given notice to all

persons whose interests may be affected by a determination in relation to an application if the Registrar:

(a) gives notice containing details of the application to:

(i) the registered native title claimant (if any) in

relation to the area covered by the application; and

(ii) the Commonwealth Minister; and

(iii) if any of the area covered by the application is

within the jurisdictional limits of a State or Territory - the State Minister or Territory Minister for the State or Territory; and

(iv) any registered native title body corporate in relation

to any of the area covered by the application; and

(v) any person who holds a proprietary interest in any of

the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

(vi) any representative Aboriginal/Torres Strait Islander

body for any of the area covered by the application; and

(b) notifies the public in the determined way of the

application.

(3) A notice under subsection (2) must also state that:

(a) ...

(b) in any other case (including an application for

determination of native title) a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given.

(4) ..."

34. Parties to an application are defined by s 68. The parties alone are those who are empowered to reach an agreement to which the NNTT may give effect by a determination under s 71 or s 73; the parties or their representatives alone are those who are entitled to participate in a mediation conference under s 72; and it is the inability of the Tribunal to make a determination consequent on a failure by the parties alone to agree on a resolution of the matter that requires the application to be lodged with the Federal Court for decision under s 74. In the Federal Court, those who were parties under s 68 become parties to the Court proceedings (47) with a right of appearance (48). The structure of the Act shows that the proceedings prior to the acceptance of the application by the Registrar are ex parte. The functions of the Registrar and of the presidential member prior to the giving of notices under s 66 are concerned entirely with the compliance of the application with the requirements of s 62 and the questions whether the application is frivolous or vexatious or whether prima facie a claim can be made out.

35. There is some attraction in the proposition that, in deciding whether prima facie a claim can be made out, the Registrar or a presidential member to whom the application is referred by the Registrar under s 63(3) can receive information or material from third persons which is relevant to that decision. After all, any person is free to make enquiry of another without requiring statutory authority to do so (49) and s 65 confers on the Registrar (with the approval of the President) and on a presidential member the powers conferred on the Tribunal by ss 155 to 159 of the Act, including the power to summon witnesses to give evidence or to produce documents. There is no express provision of the Act that confines the power or the freedom of the Registrar or a presidential member at the stage when the application is first referred to him by the Registrar (and it is to that stage that the following discussion relates) to receive information or material from third persons. However, the notion of a good prima facie claim which, in effect, is the concern of s 63(1)(b) and, if it is still in issue, of s 63(3)(a) of the Act, is satisfied if the claimant can point to material which, if accepted, will result in the claim's success. That and the structure of the Act tell against the proposition that an opinion "that prima facie the claim cannot be made out" can be formed on contentious information furnished by third persons. Moreover, s 63(3)(a), which operates when the presidential member is of the same opinion as the Registrar, speaks only of advising the applicant of the fact and giving the applicant "a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out".

36. If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubts on the prima facie ability of an applicant to make out a claim, the Registrar or the presidential member would be bound to give the applicant an opportunity to answer and then, perhaps, to allow the third person and the applicant further opportunities to reply to each other before the Registrar or the presidential member formed an opinion on the question whether prima facie a claim could be made out. The proceeding which was intended to lead to the formation of a preliminary opinion would become - as happened in the present case - a contest between parties with opposing interests and the controversy would be settled not by agreement between "parties" or by decision of the Federal Court as the Act intends but by a presidential member acting administratively. That would be contrary to the method prescribed by the Act for determination of opposed claims - that is, determination by the Federal Court. Third persons seeking to defeat an application would be able to procure an administrative determination of the application before those persons became entitled to be parties to the application.

37. As it would not be possible to restrict the reception of relevant information and material, the Registrar or the presidential member would be forming an opinion whether on all of that information or material (including the information and material received from the third person) the applicants' claim is made out or would be made out if the evidence before the Federal Court corresponds with the evidence before the Registrar or presidential member. That is not the question for determination by the Registrar or by the presidential member to whom the application is referred. The issue whether a claim is made out is an issue reserved by s 74 of the Act for determination by the Federal Court on the evidence admitted in that Court. The Registrar or the presidential member is required to form an opinion as to whether prima facie the claim can be made out by the applicant, not whether a third person would be able to destroy any case made by an applicant.

38. The view which limits the information and material for consideration to what is contained in or what accompanies an application does not place the Registrar or the presidential member at the mercy of an applicant. That construction of the Act does not entail the consequence that an applicant is free simply to omit information or material that is likely to destroy a claim for native title. The Act confers powers designed to ensure that information and material on which the opinion is to be formed are not omitted by an applicant negligently or deliberately. If the information or material first furnished in or with an application is insufficient to satisfy s 62, the application may not be acceptedm (50). No doubt an applicant's knowledge of relevant information and material may be defective (51), while third persons may possess and be willing to furnish information or material relevant to and perhaps destructive of an applicant's claim of native title. But the preliminary consideration of the application under s 63 is not, in our opinion, the stage at which to consider what is offered by third persons.

39. If the Registrar or the presidential member were called on to form an opinion as to whether an application is frivolous or vexatious, extrinsic evidence might be relevant to the question for consideration. But the relevant material would consist in such a case of some conduct on the part of the applicant or of some disqualifying factor personal to the applicant which would not be required to appear on the face of the application or in the material accompanying the application. But the present case is not of that kind.

40. In the present case, the Registrar and the President each affirmed the holding of an opinion that prima facie the applicants' claim could not be made out, but they formed their opinions in reliance upon information and material obtained from the present respondents or their respective solicitors which, in their opinion, showed that native title had been extinguished. That information and material were irrelevant to the opinion which they respectively had to form. By receiving and taking account of information and material from third persons, they failed to address the question which s 63 posed for their consideration. That question was whether, on the information and material furnished by the applicants in and with the application, prima facie their claim could be made out.

(ii) The administrative nature of the opinion under s 63

41. The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s 63, yet they each formed an opinion adverse to the claim in reliance on the effect of the tenure history of the subject land. That involved the making of findings as to the tenure history and the application of an apprehended legal rule as to the effect of a pastoral lease on native title.

42. It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised (52). But the Act reserves to the Federal Court the jurisdiction, exclusive of the jurisdiction of all other courts except the High Court, to hear and determine opposed applications (53). For that purpose, the Federal Court must make findings on issues of contested fact and, when the relevant legal rules are contested, declare the law on which the extinguishment of native title depends. If a presidential member directs the Registrar in purported exercise of the s 63(3) power not to accept an application, he deprives the applicant of the opportunity of having the claim judicially determined and, by his direction, effectively determines the application adversely to the applicant. Having regard to the jurisdiction conferred on the Federal Court by s 74, it is difficult to attribute to s 63 a construction which would authorise the administrative rejection of an application where, on the information in the application and the material accompanying it, the applicant's claim is fairly arguable.

43. To give a direction not to accept such an application upon findings of fact made after an adversarial contest on arguable questions of fact or law between persons who would be entitled to be parties if those questions were submitted for determination by the Federal Court and by reference to a legal rule declared by a presidential member after hearing contrary submissions that are fairly arguable is practically tantamount to a proleptic exercise of the jurisdiction of the Federal Court (54). If the direction not to accept such an application is given because information or material obtained from a third person shows that the claim will fail in the event of a trial in the Federal Court or because a fairly arguable question of law is determined by the presidential member adversely to the applicant, the presidential member's conclusion will be fatal to the acceptance of any future application by the applicant for the determination of native title to the same land. When that direction is given in consequence of a conclusion fatal to the claim which the presidential member has reached by steps that correspond with the steps that the Federal Court would take to determine such an application, the presidential member is performing a function that is reserved to the Federal Court. The purely administrative function to be performed by the presidential member under s 63(3) is misconceived. If a direction not to accept the application is given under s 63(3)(c) because of findings made after an adversarial hearing or because of a ruling given on contested propositions of law that are fairly arguable, the direction is invalid. It is not saved from invalidity by the theoretical right of the applicant to make another application or by the ineffectiveness of the presidential member's conclusion to create an issue estoppel.

44. In the present case, the President conducted what amounted to a trial, found the facts and ruled on the law. In substance, he did not conclude that the applicants could not make out a prima facie claim; his conclusion was that, whatever case the applicants might make, they would fail by reason of the granting of a pastoral lease, whether the 1883 lease or the later lease. Without being invested with relevant judicial power, the President effectively determined the application which otherwise might have been resolved by agreement between "parties" to the application or by determination by the Federal Court.

(iii) Uncertainty in legal rules

45. The President's approach to the consideration of questions of law that are not settled was clearly stated (55):

"A question of law may arise which, if decided one way,

would be fatal to the application in a court of law. In my opinion, where there is such a question of law the presidential member should form a view on it for the purpose of deciding whether a prima facie claim can be made out. It is not sufficient to conclude that the question is arguable and that on that basis a prima facie claim exists. If there is an issue of law which, in the view of the presidential member, is fatal to the application, that should be resolved at the threshold. It is to be borne in mind that the presidential members, although exercising administrative functions, are judges or former judges who will be experienced in deciding legal as well as factual questions. If a determination is made not to accept the application, whether based on matters of fact or law or both, then there is a statutory appeal to the Federal Court under s 169(2) of the Act."

46. This approach accords with judicial practice in ruling whether, in a criminal case, the prosecution has established a prima facie case (56). In judicial proceedings the judge has a duty to declare and apply the law, even if the law were unsettled before the judge declares it. Indeed, it is only by an application of the law as the judge declares it that it is possible to decide whether the evidence establishes a prima facie case.

47. In some contexts, the conferring of administrative power could require the repository of the power to decide a doubtful or contested question of law and to act accordingly. But in the context of the Act which is regulating the procedure for determining novel issues of native title, it would be surprising if a question of law that is not settled but is critical to the making of a valid claim to native title could be decided administratively so as to preclude an applicant from having the question decided by the Federal Court in proceedings which would be binding on all interested parties. If a presidential member were empowered to determine such a question of law against an applicant, the statutory procedure for the judicial determination of claims for native title in default of resolution by agreement would be subverted.

48. True it is that a presidential member's error of law affecting the exercise of power under s 63(3) can be corrected on appeal under s 169(2), but such an appeal is not a judicial proceeding inter partes nor does it finally determine legal rights. It is a proceeding designed to ensure that applications that are not self-evidently without merit are resolved by agreement or determined by the Federal Court so as to bind the "parties" interested. An appeal under s 169(2) is not itself the occasion for final determination of questions of law that are fairly arguable. In other words, in a case where a presidential member's direction that an application be not accepted is taken on appeal to the Federal Court under s 169(2), the question for the Court is not whether the presidential member was right in his conclusion about a contested point of law that is not settled but whether the point of law was fairly arguable.

49. It is no doubt convenient in one sense to have a speedy settlement of contested and critical questions of law but such questions can be effectively settled only by judicial declaration in the determination of issues joined in litigation. The structure of the Act reveals clearly the intention of the Parliament to divide applications into two broad categories: opposed and unopposed. Opposed applications go to the Federal Court for judicial determination binding on the parties; unopposed applications are determined finally by the NNTT. In an unopposed application, the NNTT must make an inquiry and then determine the application in one of three ways. It may make a determination consistent with the application if satisfied that the applicant has made out a prima facie case and that a determination is just and equitable in all the circumstances (57). Or, if the parties have reached agreement, whether or not after a mediation conference, the NNTT must make a determination in accordance with the agreement if a determination is within its powers and would be appropriate in the circumstances (58). Or, if the NNTT is satisfied that the applicant is unable to make out a prima facie case in relation to the application, it may dismiss the application (59). The preliminary screening procedure prescribed by s 63(3) cannot be interpreted so as to preclude consideration of applications which depend on questions of law that, being unsettled, are fairly arguable.

The result

50. The only information and material relevant to the extinguishment of native title that the applicants furnished when the application was given to the Registrar consisted of the information contained in par A8 of the application, copies of the file "held in Department of Lands, Cloncurry" ("the Cloncurry file"), and an affidavit swearing to the deponent's belief that native title "has not been extinguished". Paragraph A8 of the application read as follows:

"A8. Details of searches conducted

The applicants' representative has caused the following

searches to be conducted concerning the status of the land within the area covered by the application:

1. The relevant reserve file in the Department of Lands in

Cloncurry.

2. Lawn Hill Pastoral Lease and sublease.

3. Minerals and Energy Resource Location and Information

Network search of application for Mining Lease 90045.

Copies of documents obtained during the searches conducted,

that comprise documents of title or that record existing or expired interests, will be provided to the Registrar at the time of lodgement of this application. A list of those documents is set out in attachment 4."

51. The applicants attached a number of documents to their application including those which they listed in "Attachment 4". The first category of Attachment 4 documents consisted of the Cloncurry file. No further information nor any further documents was or were sought from the applicants by the Registrar under s 64. If no order under s 64 is sought, the Registrar must be taken not to consider "that the requirements of section 62 are not complied with".

52. No doubt was cast on the sufficiency of the material in the application to establish prima facie the applicants' claim to native title to the subject land except in so far as their title may have been extinguished. The information relevant to that issue consisted in the deposition in the affidavit accompanying the application that the deponent believed that native title had not been extinguished in relation to any part of the area covered by the application together with the copies of the documents in the Cloncurry file.

53. The Cloncurry file included an undated lithograph which showed an area marked "Pro Reserve" within the boundaries of an area described "Bauhinia Vale West No. 1". It also included a copy of file notes headed "Burketown Land Agent's District" bearing a date stamp of "4 Sep 06" from the Surveyor General's Office though there were entries on it bearing a later date. That page contains sundry notations among which are the following in what we take to be their chronological order:

"Mines Dept - requesting proclamation of Water and Camping

Reserve at the Ten Mile Waterhole near Lawn Hill."

4 September 1906: "The area under reference forms part of

Lawn Hill Consolidated Holding, and is within Burketown Mineral Field.

Litho herewith to illustrate."

8 September 1906: "For particulars Lawn Hill Consolidated"

11 September 1906: "Act '02 Class IV.

Area 1932 1/2 sq. miles.

Present rent pounds 1021.12.6.

Date of lease 1st July 1904.

Report and Valuation Act '02 received from Cmmr A Warok."

12 September 1906: "Inform lessee of request and ask for

Surrender.

Forward surrender for execution also plans."

15 September 1906: "For plans and description of area to

be surrendered"

19 September 1906: "Description herewith."

26 September 1906: "Surrender herewith"

2 October 1906: "ToBk of NSW

CAIO

2.10.06."

It is possible to infer from this information that the Ten Mile Waterhole which the Mines Department requested to be proclaimed as a Water and Camping Reserve had been part of Lawn Hill Consolidated Holding and was surrendered on or before 26 September 1906. No 1883 lease is mentioned and the steps, if any, which had been taken prior to the surrender to put a Crown lessee into possession of "Lawn Hill Consolidated Holding" do not appear. Nor do the terms of any lease appear.

54. The information conveyed by these documents is quite insufficient to establish either that a lease of the subject land had in fact been granted pursuant to the Land Act 1902 (Q) or, if a lease had been granted, whether the subject land had been included in the area leased or whether there had been any reservation from the lease in favour of the traditional aboriginal owners of the subject land. Nor are the notations sufficient in themselves to establish the tenure history of the subject land up to the time of the surrender of the Ten Mile Waterhole. As the subject land had concededly been excluded from any lease after that time, the later tenure history was irrelevant. In those circumstances, the tenure history was not sufficient to demonstrate prima facie that the applicants' claim could not be made out. Nor could the President's approach to the question whether a lease under the Land Act 1902 (Q) - the only lease relied on by the Full Court for upholding the President's direction - be supported. The President noted that (60)

"The extent to which the judgments in Mabo (No.2) have left

open the question of the impact of leasehold interests on native title was recognised in a discussion paper published by the Commonwealth Government in June 1993".

He cited, apparently as reflecting his own opinion, a paragraph from the discussion paper61:

"The differing views of the justices on the effect of the

sardine factory lease (in Mabo (No 2)) illustrate how difficult it is to predict the court's approach to future claims to leased land, as notions of what is and is not incompatible with continuing native title are likely to differ. However, even if native title is not extinguished by leasehold or other grants, where such grants are validly made the native title would be restricted or limited by the grant."

If the President was of this opinion, the question whether the grant of a pastoral lease had extinguished the native title claimed by the applicants must surely have been regarded as fairly arguable. It is not without significance that the respondents and the interveners all supported the grant of special leave to appeal to consider this question in order to settle a question of law that was said to be uncertain.

55. However, the President held that the judgments in Mabo (No 2) bound him to conclude that any subsisting native title was extinguished by the 1883 lease and would also have been extinguished by the later lease. The effect of the events that were said to establish the grant of the 1883 lease and the creation of the later lease and the effect of either lease on any surviving native title were all questions of law that were fairly arguable. Yet they were determined against the applicants.

56. The Federal Court, on appeal by the applicants, itself made findings of fact different from those made by the President and by majority held that, on the findings so made, native title to the subject land had been extinguished. Only Lee J in dissent held that the facts given in evidence before the President raised questions of law that were fairly arguable. Those questions related, inter alia, to the nature of the interest granted by the Crown under the Land Act 1902 and the effect of that grant on native title. Even if the opinions of the President and of the majority of the Full Court on these questions turn out to be correct, it is impossible to deny that Lee J is correct in describing them as "plainly arguable". As experience in the working out of the relevant principles is gained, certainty will reduce the points that are fairly arguable.

57. The Registrar and the President misdirected themselves in the opinion they had to form, they had regard to information and material to which they were not entitled to have regard in forming that opinion and they adopted a procedure that was inappropriate to the formation of the relevant opinion. It follows that the President's direction not to accept the applicants' application must be set aside. The Full Court of the Federal Court was in error in adopting the evidence gathered by the President as the basis of their findings of fact and in determining the contested points of law instead of holding that the points were fairly arguable. The appeal from the Federal Court must therefore be allowed.

58. Once it appears that the President ought not to have formed the same opinion as the Registrar when the Registrar referred the application to him under s 63(2), the direction that ought to have been given is that prescribed by s 63(4), namely, that the Registrar accept the application. At the conclusion of argument in this case, this Court set aside the order of the Federal Court and in lieu thereof ordered that -

"the President direct the Registrar of the National Native

Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants' Application for a Determination of Native Title No QN 94/9 which was lodged on 24 June 1994." It may be that the direction to accept should be given pursuant to sub-s (4) rather than sub-s (3)(b) of s 63 of the Act, but the source of the obligation to give the direction is immaterial for present purposes. The procedure adopted by the President for the purposes of sub-s (3)(a) was in any event inappropriate for the determination of the question whether he ought to have been satisfied that a prima facie case could have been made out and the factors which invalidated the formation of the earlier opinion under s 63(3) invalidate the direction given by the President under s 63(3)(b).

59. At the time of pronouncing the judgment and order of the Court, it was announced that reasons would follow in due course. These are our reasons for that judgment and order.

McHUGH J. These reasons arise out of an application for special leave to appeal against an order of the Full Court of the Federal Court of Australia. By its order, the Full Court upheld a decision of the President of the National Native Title Tribunal ("the Tribunal") directing the Registrar of that Tribunal not to accept an application for a determination of native title filed by the applicants ("the Waanyi People"). The application concerned an area of about 247 hectares of land in north-west Queensland. The Waanyi People contended that the Registrar should have accepted their application because they had established a prima facie claim of native title in respect of the land. At the conclusion of the argument in this Court, we granted special leave to appeal and allowed the appeal with reasons to be published later.

The legislation

2. Section 61 of the Native Title Act 1993 (Cth) ("the Act") authorises a person or persons "claiming to hold native title" to make an application for the determination of that native title. Section 62 relevantly provides:

"(1) A native title determination application by a person or

persons claiming to hold the native title in relation to an area must:

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

that the applicant:

(i) believes that native title has not been extinguished in

relation to any part of the area; and

(ii) believes that none of the area is covered by an entry

in the National Native Title Register; and

(iii) believes that all of the statements made in the

application are true; and

(b) contain all information known to the applicant about

interests in relation to any of the land or waters concerned that are held by persons other than as native title holders; and

(c) contain a description of the area over which the native

title is claimed; and

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

taken to be the claimant."

If an application complies with the requirements of s 62, the Registrar must accept it unless he or she is of the opinion "(a) that the application is frivolous or vexatious; or (b) that prima facie the claim cannot be made out" (62). If the Registrar forms one of the opinions in pars (a) or (b), he or she must refer the application to a presidential member (63). Section 63(3) and (4) then provide:

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

presidential member must:

(a) advise the applicant in writing of the fact and give the

applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and

(b) if the applicant so satisfies the presidential member -

direct the Registrar to accept the application; and

(c) if the applicant does not so satisfy the presidential

member - direct the Registrar not to accept the application.

(4) If the presidential member is not of the same opinion as

the Registrar, the presidential member must direct the Registrar to accept the application."

3. If the presidential member decides not to accept the application, the person who has given the application to the Registrar under s 61 may appeal to the Federal Court "on a question of fact or law" (64).

4. Acceptance of the application confers important rights on the applicant. Notice of the details of the application must be given to, among others, any Commonwealth, State or Territorial Minister concerned with an area covered by the application. Notice must also be given to any person holding a registered proprietary interest in any of the area covered by the application (65). Any person so notified can then become a party "in relation to the application" if that person applies to be a party, as can any other person whose "interests may be affected by a determination" (66).

5. If an application is unopposed, the Tribunal may make a determination in or consistent with the terms sought by the applicant. Two conditions must be satisfied for such a determination to be made. First, the Tribunal must be satisfied that the applicant "has made out a prima facie case for a determination in those terms" (67). Second, the Tribunal must consider "the determination to be just and equitable in all the circumstances" (68). If the parties to an application reach agreement, the Tribunal must make a determination in accordance with, or consistent with, the terms of the agreement if it is satisfied that the terms of the agreement are "within the powers of the Tribunal and would be appropriate in the circumstances" (69). If the parties cannot agree, the President of the Tribunal must direct the holding of a conference between the parties "to help in resolving the matter" (70). If the parties then fail to agree, "the Registrar must lodge the application to the Federal Court for decision" (71).

6. Section 139 of the Act requires the Tribunal to hold an inquiry into, inter alia, any "unopposed application" which by definition means those applications unopposed under s 70 or those applications where agreement is reached under ss 71 or 73 of the Act. At the inquiry, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case, to inspect documents and to make submissions in relation to those documents (72). Any question of law arising in the inquiry must be decided in accordance with the opinion of the presiding member (73). Power is given to the Tribunal to refer questions of law to the Federal Court (74), to receive into evidence a transcript of evidence from other proceedings, to draw conclusions of fact from that transcript and to adopt the report or findings of specified bodies (75). The Tribunal may dismiss an application at any stage of the inquiry "if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application" (76). Similarly, the Tribunal may dismiss an application at any stage if it "is satisfied that the application is frivolous or vexatious" (77). The Tribunal is also given power to hold hearings (78) and to take evidence on oath or affirmation (79). Section 160 provides:

"(1) After holding an inquiry in relation to an application

made under section 61, the Tribunal must make a determination about the matters covered by the inquiry.

(2) The Tribunal must state in the determination any

findings of fact upon which it is based."

7. As soon as practicable after a determination under s 160 is made, the Registrar must lodge the determination in a Registry of the Federal Court (80). Upon registration in that Court, the Act purports to make the determination have the same effect as if it were an order made by the Federal Court (81).

8. Upon acceptance of a claim, a government of the Commonwealth, a State or a Territory can only grant or vary mining rights, or compulsorily acquire native title rights for the benefit of non- government parties, in respect of land covered by the accepted application if certain procedures are followed (82). Those procedures require the government to notify any registered native title claimant of such proposed action (83). The government is also required to negotiate in good faith with the native title claimant and the parties who are to be granted rights over the land, with such negotiations to be carried out "with a view to obtaining the agreement of native title parties" to the granting of the rights (84). Relevant matters that may be negotiated include payments to native title parties calculated by reference to profits made, income derived or things produced by the grantee party by using the land (85). If any of the negotiating parties request "the arbitral body" (86) to do so, it "must mediate among the parties to assist in obtaining their agreement" (87). The object of these procedures is to produce an agreement between the parties (88) or a determination by the arbitral body that the proposed right over, or in respect of, the land should or should not be granted (89).

The factual background

9. Some days after the Waanyi People filed their application, solicitors, acting for the second respondents, wrote to the Registrar expressing their concern that the application for the determination of native title might be accepted. The solicitors asserted that the relevant land had been the subject of two pastoral leases issued under the Land Act 1902 (Q). They contended that the issue of these leases extinguished any native title that had previously existed in respect of the land. Subsequently, the solicitors forwarded to the Registrar a history of dealings affecting the land together with copies of materials obtained from the Queensland State archives.

10. The history of the dealings showed that, prior to 27 June 1904, the Bank of New South Wales ("the Bank") had been the lessee of land that included the land the subject of the application. The Bank held the land under a pastoral lease whose term commenced on 1 July 1883 and expired on 30 June 1904 ("the 1883 lease"). On 7 July 1904, the Land Court of Queensland recommended an extension of the lease for a period of five years commencing on 1 July 1904. On 28 July 1904, the Bank gave a Notice of Election under the Land Act, s 8 of which provided:

"(1) At any time within six months after such publication of

the classification of a holding the lessee, upon giving notice to the Minister that he elects to take advantage of this Part of this Act, and upon surrendering the existing pastoral lease of such holding, shall be entitled to receive a lease from the Crown under this Part of this Act of the lands comprised in such holding.

(2) Every notice of election shall be in the form in the

Second Schedule to this Act or to the like effect, and when received by the Minister shall be irrevocable, and shall bind both the lessee and his successors in interest and the Crown.

Every such notice, or an abstract thereof, shall be

published in the Gazette.

...

(4) The term of every such lease shall commence on the first

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

(5) In the case of two or more contiguous holdings held by

the same lessee, the whole of the lands comprised therein may, if the Minister thinks fit, and the lessee agrees thereto, be included in one and the same lease, and in that case shall thereafter, for all the purposes of this Part of this Act, be deemed to be and shall be dealt with as one holding."

The Bank's Notice of Election was published in the Government Gazette (Q) on 13 August 1904.

11. On 18 October 1905, the Under Secretary for Lands, acting under s 8(5), wrote to the Bank asking if it wished to consolidate into one lease 40 runs then leased to it. The Bank agreed to do so, but no lease was issued until 14 November 1907. The lease ("the 1907 lease") was for a term of 42 years commencing on 1 July 1904. The 247 hectares of land which is the subject of the Waanyi People's application was part of the land held under this lease. However on 22 March 1907, the Bank had surrendered to the Crown an area of 278 square miles that included those 247 hectares. On 8 June 1907, a proclamation published in the Government Gazette (Q) reserved an area of 610 acres of the land surrendered for camping and water purposes. Despite the surrender and the proclamation, the 1907 lease contained no reservation in favour of Aboriginal persons.

12. Upon receiving the materials from the second respondents' solicitors, the Registrar formed the opinion that prima face the claim of the Waanyi People could not be made out. She referred the application to the President. He formed the same opinion as the Registrar. As a result, the President wrote to the applicants through the Carpentaria Land Council advising them that in his opinion no prima facie claim had been made out because the native title to the land had been extinguished by the grant of a pastoral lease over the land in 1883. He informed them that the Waanyi People would be given a reasonable opportunity to show that a prima facie claim could be made out. The President also invited the first and second respondents to make submissions on the issue. After hearing the Waanyi People and the first and second respondents' submissions, the President held that either the 1883 lease or the 1907 lease had extinguished the Waanyi People's title in respect of the land. The Waanyi People appealed against the decision of the Federal Court pursuant to s 169(2) of the Act. But the Full Court of the Federal Court (Jenkinson, Hill JJ, Lee J dissenting) upheld the ruling of the President.

The contentions

13. The Waanyi People contended in this Court that the process adopted by the President was in error and that neither the Registrar nor the President was entitled to have regard to material other than that complying with s 62 of the Act in determining whether there was a prima facie claim of native title. They argued that the President had erred in holding that "(t)he Presidential Member in deciding whether a prima facie claim can be made out can form a concluded view on a question of law which, if decided one way would be fatal to the application." Because this Court was of the opinion that the President had erred in finding that there was no prima facie claim of native title, the Court did not hear argument as to whether the President had also erred in finding that, as a matter of law and fact, native title over the land had been extinguished.

The relevant materials

14. In my opinion, neither the Registrar nor the Presidential member is confined to the materials referred to in s 62 of the Act in determining whether a prima facie claim of native title has been made out. The strongest argument for this conclusion is that the Act does not say that the Tribunal must have regard to the s 62 materials and to no other materials. This view is strengthened by the fact that unless something in the application discloses that the application is frivolous or vexatious or a prima facie claim is not made out, the formation of the relevant opinion can only be based on extrinsic materials other than those specified in s 62.

15. Moreover, neither legal principle nor public policy suggests any compelling reason why the Registrar or the President should not use all relevant and available information in deciding whether an application is frivolous or vexatious or a prima facie claim of native title has been established. It is likely that over a period of time the Tribunal will acquire a body of knowledge concerning claims of native title and land dealings in respect of particular areas. It is difficult to accept that Parliament intended that the Tribunal could not use this information when it would show that an application should not be accepted.

16. Furthermore, there is nothing in the Act to indicate that the Registrar or the President cannot exercise the common law right of every official to make inquiries relevant to his or her duties. In Clough v Leahy (90), this Court held that, independently of any statutory powers, Commissioners conducting an inquiry had the common law right of every citizen to ask questions unless legislation prohibits those questions being asked. Far from the Act prohibiting the making of such inquiries, its provisions expressly authorise the gathering of information in respect of applications. Thus, s 108 provides:

"(1) The Tribunal has the functions in relation to

applications, inquiries and determinations given to it by Part 3 and Division 5.

(2) The Tribunal may carry out research for the purpose of

performing its functions.

(3) Without limiting subsection (2), the Tribunal may carry

out research under that subsection into:

(a) the history of interests in relation to land or waters

in Australia; or

(b) anthropology; or

(c) linguistics."

Section 65 of the Act provides:

"(1) The Registrar may, with the approval of the President,

exercise any of the powers in relation to an application that the Tribunal may exercise under sections 155 to 159.

(2) A presidential member may exercise any of the powers in

relation to an application that the Tribunal may exercise under sections 155 to 159."

Section 156 relevantly provides:

"(1) The Tribunal may take evidence on oath or affirmation

and for that purpose a member of the Tribunal may administer an oath or affirmation.

(2) A member of the Tribunal may summon a person to appear

before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.

(3) A party may call witnesses."

17. The effect of ss 65 and 156 is that the Registrar can take evidence from witnesses and order the production of documents in determining whether to accept a claim. Moreover, s 65 appears immediately before the section (91) which deals with the action to be taken if a claim is accepted. The powers conferred by ss 65 and 155-159 are exercisable "in relation to an application". In its context, the conclusion is irresistible that the powers conferred on the Registrar by ss 65 and 155-159 can be exercised before a claim is accepted.

18. Furthermore, it seems clear to the point of near certainty that the powers conferred by ss 65 and 155-159 can be used when the Registrar thinks that a claim may be frivolous or vexatious. While the content of an application may demonstrate that it is frivolous or vexatious, that particular quality might often - indeed usually - require proof of extrinsic evidence, proof for example that the claim had already been judicially rejected. If the Registrar suspects that the claim is frivolous or vexatious, I can see no reason why he or she cannot use the powers conferred by ss 65 and 155-159 to investigate the matter.

19. The Solicitor-General for the Commonwealth pointed out that par (a) of s 63(1) is concerned with a frivolous or vexatious application while par (b) is concerned with a claim of native title. He contended that this distinction suggests that, in determining whether an application is frivolous or vexatious, the Registrar is confined to the s 62 materials but that in determining whether a prima facie claim has been made out, the Registrar is not so confined. However, neither principle nor policy suggests any reason why the powers conferred by ss 65 and 155-159 should be exercisable in determining whether the applicant has established a prima facie claim but not exercisable in determining whether the application is frivolous or vexatious. In determining whether the filing of a writ or pleading or the issuing of a subpoena is frivolous or vexatious, courts regularly consider material outside the process itself. I see no reason why a different rule should apply to the Tribunal. If that is so, it would seem to follow that the powers conferred by ss 65 and 155-159 are also exercisable in determining whether a prima facie claim has been made out.

20. The various matters to which I have referred make a strong case for concluding that the Tribunal is not bound by the s 62 material and that, in an appropriate case, the Tribunal may use other relevant information in deciding whether to accept a claim. But that does not necessarily mean that the Tribunal was at liberty to follow the procedure adopted in this case.

21. While there is nothing in the Act to stop the Tribunal using its own knowledge or exercising its coercive powers at any relevant time during the s 63 stage, it does not follow that the Tribunal has an unfettered discretion to obtain information or evidence in considering whether to accept an arguably valid claim that does not appear to be frivolous or vexatious. It is impossible to define in advance the occasions when the Tribunal is authorised to make further inquiries and investigations concerning an application, apparently valid, for the purpose of exercising its powers of rejection under s 63(1)(a). But one important circumstance limiting the occasions for the use of the power is that the Tribunal is exercising an ex parte administrative function under a system that contemplates that disputed issues will be dealt with after acceptance.

22. Persons affected by an application for determination of a native title claim are not given notice of the claim until acceptance of the claim (92). In the face of the express terms of the notice provisions, it is impossible to hold that the rules of natural justice require that a person likely to be affected by the filing of an application must be given notice before the application is accepted. The Act makes it clear, therefore, that the procedure for accepting a claim is an ex parte procedure, interested parties receiving no notice of an application until it is accepted.

23. Another important circumstance is that the structure of the legislation makes it clear that the primary role of the Tribunal is to screen claims and to assist the parties to reach settlements. If an application is accepted, ss 66-74 provide for procedures that will result in the application being treated as unopposed, settled by agreement or referred to the Federal Court for decision. If a claim is unopposed or agreement is reached, the Tribunal is given power to make determinations. If the claim is disputed, it must be resolved by the Federal Court if mediation or negotiation fail. The Tribunal has no role in deciding disputed claims of native title.

24. Another important circumstance is that the Preamble (93) to the Act indicates that one of the purposes of the legislation is to establish a special procedure for determining claims of native title by conciliation and negotiation between interested parties. In furtherance of this purpose, the effect of the Act is that, irrespective of whether a claimant has native title as claimed, as long as the claimant has a prima facie claim of title, he or she obtains the right to negotiate with interested parties once the Registrar accepts the claim (94). Those rights of negotiation are valuable rights. They enable an applicant to protect his or her claim against "permissible future acts" (95). They may also result in the applicant obtaining a commercially beneficial settlement of a doubtful or even non-existent claim.

25. Having regard to the objects and the special procedures of the Act, and the rights of negotiation which it confers, the power conferred by s 63 to reject an application should be used only in those cases where there are clear grounds for rejection. The fact that the Act provides a screening process by means of an administrative procedure also indicates that s 63 was not intended to be the vehicle for the determination of difficult or complex questions of law or fact, the evaluation of competing arguments, or the resolution of conflicts between the claimant and other interested parties. The Tribunal's powers to use information derived from sources other than the s 62 materials should therefore be used sparingly. Speaking generally, they should be used only when there is a real ground for suspecting that an application is frivolous or vexatious or a prima facie claim cannot be made out.

The application should have been accepted

26. The respondents conceded in the Federal Court that the application showed a prima facie claim of native title and it was not suggested that the application was frivolous or vexatious. That being so, the objects of the Act would probably have been best served if the application had been accepted without further inquiry. Having regard to the powers of the Tribunal to receive and gather information, however, it is impossible to say that the Tribunal had no power to receive the non-s 62 material if it reasonably believed that that material might destroy what would otherwise be a prima facie claim.

27. Nevertheless, the Tribunal should have accepted the application. The non-s 62 material did not destroy the prima face claim of the Waanyi People. Even when that material was taken into account, the Waanyi People still had an arguable case of native title. No more is required at the s 63 stage. The Tribunal has no power to reject an arguable application simply because it thinks that as a matter of law the claim cannot be made out.

A prima facie claim

28. Curiously, the Act draws a distinction between a prima facie claim (96) and a prima facie case (97). Thus, s 70 provides that, if an application is accepted under s 63 and is unopposed, the Tribunal may make a determination in or consistent with the terms sought by the applicant. However, before it does so, the Tribunal must be satisfied that the applicant has made out a prima facie case for a determination in those terms and that the Tribunal considers the determination to be just and equitable in all the circumstances. Section 148 states that, in conducting an inquiry under Div 5 of Pt 6 of the Act, the Tribunal may dismiss an application at any stage of the inquiry relating to the application "if it is satisfied that the applicant is unable to make out a prima facie case". But that power is confined to inquiries into "unopposed" applications under ss 70, 71 and 73, to "right to negotiate" applications under s 75 and to the special inquiries held under ministerial direction pursuant to s 137 of the Act. In its context, the term "prima facie case" in ss 70(1)(a) and 148 appears to refer to a prima facie case in respect of the relief sought and not to the existence of native title. The distinction between accepting a prima facie claim at the s 63 stage and being satisfied as to a prima facie case at the s 70 or s 148 stage may not be accidental. Perhaps it indicates that an applicant has a lesser burden in establishing a prima facie claim under s 63 than in establishing a prima facie case under s 70(1)(a) or s 148. But I doubt it.

29. Outside the context of the Act, the term "prima facie claim" does not appear to be the subject of judicial exposition. But in various contexts, courts have had to consider the meaning of the term "prima facie case". The very notion of a "prima facie case" precludes a court of justice from determining disputed questions of fact in deciding whether the prosecution or a plaintiff has established a prima facie case (98). Similarly, the very notion of a prima facie claim must preclude the Tribunal from determining disputed questions of fact. But it does not follow that the Tribunal cannot determine the law for the purpose of deciding whether there is a prima facie claim.

30. Whether a court must determine a disputed question of law in deciding whether a prima facie case exists appears to depend on the nature of the proceedings. In a criminal trial, for example, the trial judge or magistrate plainly has a duty to determine any relevant question of law in determining whether a prima facie case has been made out on the evidence. At the conclusion of the prosecution case, the judicial officer must determine whether the evidence is capable of sustaining the charge. That necessarily involves deciding any relevant question of law. In proceedings for an interlocutory injunction, on the other hand, a judge is not always bound to determine a question of law (99). That is because the interlocutory proceedings do not finally determine rights, and other factors such as the urgency of the relief sought and the need to maintain the status quo may make it undesirable to decide a complex point of law (100). If the point of law is difficult or the urgency of the relief sought does not permit a proper consideration of the point or its determination requires a factual matrix which will not be available until all the facts of the case have been proved (101), the judge is entitled to determine the application on the basis that law relied on is arguably correct. But the Tribunal is not a court. Cases concerning criminal prosecutions or applications for interlocutory injunctions are therefore not helpful except to the extent that they demonstrate that a judge does not always have to decide a disputed point of law in determining whether there is a prima face case.

31. Cases concerned with committal proceedings are more analogous to a case like the present because they are non-judicial proceedings. In committal proceedings, magistrates are frequently asked to determine whether the prosecution has made out a prima facie case. But the reported cases on committal proceedings throw little light on whether the Tribunal must or can determine a question of law, the determination of which may impact adversely on the applicant. A number of cases assume that a magistrate in those proceedings is entitled to decide difficult questions of law (102). Moreover, that assumption accords with the every day practice of committing magistrates who make determinations of law in deciding whether or not to commit a defendant for trial. Nevertheless, no Australian or English case appears to decide that the magistrate must or should decide a disputed question of law. In the United States, on the other hand, courts appear to accept the view that judicial officers conducting preliminary hearings in criminal cases should not determine disputed questions of law (103). I would not wish to throw any doubt on the right of magistrates in this country to decide disputed questions of law in committal proceedings. But the existence of this right, assuming that it exists, does not really assist in resolving whether the Tribunal is bound or entitled to decide disputed questions of law in deciding issues under s 63.

32. Furthermore, an administrative official is generally entitled to determine facts and to act upon his or her view of that law in deciding whether to exercise an administrative power (104). But again the existence of this right does not really help to resolve the Tribunal's powers under s 63. The question here is what, if any, findings of fact or law the Tribunal is entitled to make under s 63. General propositions concerning administrative law are of no assistance in deciding the specific question posed by s 63(1)(b).

33. Apart from the present case and a number of similar cases in the Federal Court concerned with native title, counsel were unable to refer the Court to any case where a court had held that an administrator was or was not bound to determine a disputed point of law in deciding whether a prima facie claim had been established. Nor have I been able to find any case on the subject. Neither case law nor general principle, therefore, is of much assistance. The terms and purpose of the Act can be the only guide.

Arguable questions of law

34. Against the background of the procedures for accepting a claim of native title, it makes little sense to distinguish between arguable questions of fact and arguable questions of law in determining whether there is a prima facie claim of native title. It borders on the absurd to think that the federal Parliament intended that a claim of native title must be accepted by the Registrar if the facts are in dispute but must be rejected if the Registrar or President thinks that, on balance, the law is against a claimant. It is not the primary function of an administrator to decide questions of law. Moreover, arguments about questions of law in native title claims are likely to arise frequently. They are just as likely to be as controversial and disputable as the facts of such claims. Many questions involved in an application for determination of native title are also likely to be questions of mixed fact and law.

35. In these circumstances, no distinction should be drawn between applications involving disputed questions of fact and applications involving disputed questions of law. If on its face a claim is arguable, it should be accepted, so that the claimant can obtain the advantage of the special procedures set up by the Act, leaving the resolution of any disputed questions concerning the claim to the Federal Court. This seems to have been the view of O'Loughlin J in Northern Territory of Australia v Lane (105) where his Honour said that "the problem" in that case:

"raises complex legal issues and it would not be for the

Registrar, at the administrative level, to make any decision on the identity of the applicants. Such a question of law would properly be determined b y this Court."

The Waanyi People had a prima facie claim

36. In the Federal Court, the respondents accepted that, unless the 1883 or 1907 lease had extinguished the Waanyi People's claim of native title, the Waanyi People had established a prima facie claim in respect of that title. However, the respondents contended, and the majority of the Full Court accepted, that, in determining whether the Waanyi People's title had been extinguished, the Tribunal was entitled, but not bound, to determine any relevant question of law. For the reasons I have given this view must be rejected. If a claim is arguable in fact and law, the application must be accepted.

37. In my view, the claim of the Waanyi People was arguable as a matter of fact and law even when the additional materials are taken into consideration. It is unnecessary to say more on this point other than that I agree with the reasons given by Lee J for holding that the Waanyi People had an arguable and therefore prima facie claim of native title.

The pastoral lease question

38. Counsel for the respondents and the Solicitors-General for the Commonwealth and the States urged the Court to grant special leave to appeal to decide whether the Federal Court was right in holding that the 1907 lease had extinguished the Waanyi People's claim of native title. They contended that it is a matter of great public importance that this question should be authoritatively determined by this Court as soon as possible. That the matter is of great economic and social importance is undeniable. But the Court could only decide the pastoral lease issue by granting special leave to appeal on that issue or by using a decision on the point adverse to the Waanyi People as a reason for refusing the application for special leave to appeal against the procedural issue. Once the Court concluded that the Tribunal was required to accept the application of the Waanyi People neither of these grounds was legitimately open.

Granting special leave on the pastoral issue

39. Obviously, the Court could not grant special leave to decide the pastoral lease point if it concluded that special leave to appeal should be granted on the procedural issue on the ground that the Tribunal erred in refusing the application of the Waanyi People. Upon granting leave and allowing the appeal on the s 63 procedural issue, the only order that the Court could make was the one that it did make. That is to say, that the judgment of the Federal Court be set aside, that the appeal to that Court be allowed and the Registrar be directed to accept the application of the Waanyi People. If the Court had also granted special leave and purported to give an opinion on the extinguishment issue, it would have given an opinion which it had no constitutional jurisdiction to give. The opinion of the Court would have been an advisory opinion. It would have been giving an opinion on a matter that did not arise because, ex hypothesi, the order of the Court on the procedural issue would direct the Tribunal to accept the application. The Constitution gives this Court no jurisdiction to give advisory opinions in either its original (106) or its appellate jurisdiction (107). Once the Court directed the Tribunal to accept the application of the Waanyi People, a decision by the Court on extinguishment would be binding on nobody, just as the opinion of the Federal Court that the title of the Waanyi People has been extinguished is now binding on nobody.

40. It is a mistake to think that, as soon as this Court grants special leave to appeal against an order of one of the courts referred to in s 73 of the Constitution, the Court can then give a binding opinion on any point that was argued in the Court below. For a decision of this Court to be binding on such a point, one of two things must occur: (1) the Court must give special leave to appeal on the point; or (2) a decision on the point must be essential to the decision on an issue which is the subject of the grant of special leave.

41. If this Court had held that the Tribunal had jurisdiction to determine the extinguishment issue, both the Federal Court and this Court would also have had jurisdiction to decide the point. But once the Court decided that the Tribunal had to accept the application and had no jurisdiction to determine the extinguishment issue as part of the process of accepting the application, the Court could not grant special leave to decide the extinguishment issue. That was plainly the consequence of the reasons of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ who take the view that the Tribunal can only act on the s 62 materials. On their approach, any opinion on the extinguishment issue could only be an advisory opinion on an issue that was not yet ripe for determination. My reasons are different from their Honours but they lead to the same result because I have also held that the Tribunal had to accept the application. On my reasoning also, the extinguishment issue is not ripe for determination and any opinion I gave would be advisory only (108).

42. So even if the Waanyi People had pressed their special leave application in respect of the extinguishment issue (which eventually they did not), the Court could not have legitimately granted leave on that issue as well as the s 63 issue.

Refusing special leave generally

43. If, on the other hand, the Court had refused to grant special leave on the s 63 issue because, after hearing argument, it concluded that the Waanyi People's title had been extinguished, there would be no legally binding decision of this Court on either the s 63 issue or the extinguishment issue. Refusal of special leave creates no precedent and is binding on no one. An application for special leave is merely an application to commence proceedings in the Court (109). Only when the Court grants leave does it commence to exercise its appellate jurisdiction. Until that time, there are no parties whose rights can be the subject of a binding determination. For the Court to give a ruling but not a binding decision on extinguishment in the course of refusing a special leave application could hardly be regarded as a satisfactory course. No doubt it would be advantageous to those affected by the issue to know the Court's view even though the ruling was not a binding decision of the Court and could be further litigated.

44. However, it would not have been a proper exercise of the discretion to refuse special leave on the procedural issue merely because the Court thought that the claim would eventually fail in the Federal Court. That would have deprived the Waanyi People of their statutory right to have their application accepted with the consequence that the second respondents must negotiate a settlement of the Waanyi People's claim before the validity of that claim has been resolved. To my mind, therefore, the application of the respondents and the interveners to decide the extinguishment issue was in effect an invitation to this Court to sacrifice the rights of the Waanyi People - indeed the rule of law itself - on the altar of commercial and social convenience.

45. Moreover, there was no certainty that the issue of extinguishment would again reach the Federal Court. At the very least, the Waanyi People had a real chance of reaching an agreement with the second respondents by exercising the negotiation and mediation rights conferred by the Act. Perhaps those respondents will take the view that the majority "decision" of the Federal Court shows that the Waanyi People have no right of native title and therefore nothing of value to trade. Perhaps not. Perhaps the second respondents will take the self-interested view that their holding costs and the opportunity to commence their mining operations without the risk of an adverse and delayed decision about their own title make it worthwhile to make an agreement with the Waanyi People.

46. No doubt some miners, pastoralists and other persons believe that the procedures of the Act are unfair, that they create uncertainty and delay that can force interested parties to buy off unmeritorious claims, and that they prevent or impede the exploitation of important national resources. But such beliefs are beside the point. Parliament has laid down the law. It has attached valuable rights to an accepted claim, rights that are exercisable by a claimant before the validity of the claim is judicially determined. The Act has given claims of native title an economic as well as a spiritual and physical dimension.

47. If, after negotiation and mediation, the second respondents continue to object to the claim of the Waanyi People, only the Federal Court can uphold the objection. The Tribunal cannot deal with it. If the issue ultimately goes to the Federal Court, the earlier decision of the majority of the Federal Court will have no binding or precedential effect. Moreover, the Court may be differently constituted and the evidence may be different. Perhaps further research on behalf of the Waanyi People will have thrown more light on the interaction between the lessees and the Waanyi People before and after the grants of the 1883 and 1907 leases. Perhaps research by historians and others will have further illuminated the practical effect of pastoral leases on the rights of the Aboriginal people in north-west Queensland and other places and the intentions of the Crown in granting them. Perhaps not.

48. But one matter is beyond speculation. The refusal of the Tribunal to accept the claim of the Waanyi People deprived them of the statutory rights that the Act conferred upon them. That refusal was a serious injustice to them. In my view, this Court could not add another injustice to the long history of injustices to the Aboriginal people by refusing to vindicate the legal rights of the Waanyi People - even if vindicating those rights meant that the effect of pastoral leases on native title was to remain unresolved by this Court.

49. To ignore the procedures of the Act and to determine the extinguishment issue before the Waanyi People had had an opportunity to utilise their rights under the Act would be both a breach of the Act and an injustice to the Waanyi People. To refuse to correct that breach because to do so would serve the social or economic interests of other persons would be a step calculated to undermine the rule of law in our community. The community will quickly lose confidence in the courts of justice if a perception arises that the courts are ready to ignore the legal rights of individuals whenever intervening governments or litigants urge that public or private convenience requires such rights to be by-passed.

50. For these reasons, the orders of the Court were correctly made.

KIRBY J. These proceedings concern two important issues affecting native title to land.

The course of the proceedings

2. For a considerable time a claim for a determination of native title on behalf of the Waanyi peoples, a community of Australian Aboriginals, has been proceeding before the National Native Title Tribunal (the Tribunal) and the Federal Court of Australia. The claim concerns a parcel of land known as the "Ten Mile Waterhole" at Lawn Hill near the Gulf of Carpentaria in the State of Queensland. The application is made pursuant to the Native Title Act 1993 (Cth), (the Act). The Registrar of the Tribunal determined that the applicants prima facie could not make out their claim. In effect, the Registrar's decision was confirmed by the President of the Tribunal (French J) (110). The President's decision was upheld by the Full Court of the Federal Court of Australia (Jenkinson and Hill JJ; with Lee J dissenting) although for reasons somewhat different from those of the President (111).

3. In confirming the decision of the Registrar, both the President and the majority of the Full Federal Court proceeded, with the assistance of very detailed submissions on behalf of the State of Queensland (first respondent) and Century Zinc Limited and CRA Exploration Pty Ltd (second respondents) to decide that any entitlement of the applicants to native title to the subject land had been extinguished by a grant by the Crown of a pastoral lease without relevant reservation preserving Aboriginal access and use. Such a lease was held to be inconsistent with the continued enjoyment of native title rights by the Waanyi people.

4. It is unnecessary for present purposes to examine the two pastoral leases relied upon by the respondents and the different opinions as to their effect held respectively by the President and the majority in the Federal Court. Some detail is contained in the reasons of the other members of this Court. In rejecting the claim at the outset the President, and the Federal Court, sought to apply the principles which they took to follow from the holding of this Court in Mabo v Queensland (No 2) (112).

5. An early application was made to have the appeal from the President's ruling removed into this Court. The application failed (113). The Federal Court proceeded to decide the appeal. It upheld the President's ruling. An application was then made on behalf of the Waanyi People for special leave to appeal. That application initially came before the Court, differently constituted, in December 1995 (114). The applicants originally isolated three matters in respect of which special leave to appeal was sought. These were, put shortly, the "pastoral lease question", the "judicial power question", and the "procedural question".

6. Because, in the interim, legislation had been foreshadowed to amend the Act, to change the respective functions of the Tribunal and the Federal Court, the applicants did not pursue the judicial power question (115). So far as the "procedural question" was concerned, counsel for the applicants also disclaimed it upon two stated bases. The first was that the amendments to the Act appeared likely to alter the Tribunal's procedures, including those which had given rise to the applicants' complaints. Secondly, having regard to the way in which the President and the Federal Court had dealt with the substantive entitlements of the applicants, remitting the proceedings to the Tribunal for the pursuit of corrected procedures would, in the events which had occurred, have no point (116).

7. However, during the original argument of the special leave application, it ultimately became clear that the Court considered that the "procedural question" might well attract special leave, quite apart from the "pastoral lease question" which had become caught up in its resolution in the Tribunal and Federal Court. For that reason, the application was adjourned to the Full Court of this Court for determination. Over the opposition of the respondents, the applicants were granted leave to amend their application to rely upon "the procedural point" as it had been elucidated. It is in this way that, after many hearings before the Tribunal, the Federal Court and two earlier applications before this Court, the summons for special leave arose to be determined by this Court as now constituted.

8. Two questions were, in my view, presented for decision:

1. Whether the Tribunal had erred in the approach which it

had taken to the procedures required by the Act? and

2. If it did, whether, in the events which had occurred, and

specifically the conclusions (although upon different bases) of the Tribunal and the Federal Court that the applicants' native title had been extinguished long ago by a relevant lease, this Court should now proceed, as the respondents, the intervening States, the Northern Territory and initially the applicants requested, to determine the "pastoral lease question"?

9. Obviously, if the first question were answered in the negative, the applicants would have been required to argue the issue which they originally came to argue before the Court in December 1995, viz whether the pastoral leases found to have been granted in this case, or either of them, by the applicable law, had the effect of extinguishing the native title of the Waanyi people. There would also remain a subordinate, but consequential, legal question concerning the power of the colony and State of Queensland to enact laws, and engage in executive action, to grant pastoral leases which had the effect of extinguishing native title. Having regard to suggested limitations on the powers said to have been entrenched in relevant imperial and colonial constitutional instruments, the applicants sought to argue that any purported extinguishment by Queensland law was invalid.

10. Having heard argument confined to the procedural question, this Court on 8 February 1996 terminated the hearing, made orders granting special leave to appeal from the judgment of the Federal Court, allowed the appeal, set aside the Federal Court's orders and, in lieu of them, ordered that the appeal from the decision of the President be allowed, the President's decision set aside and the matter remitted to the President with an order that he direct the Registrar to accept the applicants' application for determination of their native title claim.

11. The applicants thus succeeded on the procedural point which they had initially disclaimed as a point warranting special leave to appeal but which they embraced, with understandable enthusiasm, when it became clear that this was the basis upon which this Court was moved to intervene.

12. I would agree with other members of the Court that the "procedural point" was a good one. In my view, the procedures before the Tribunal miscarried. The Federal Court should have so held. Clearly, the point was raised in the appeal to that Court. However, in the way the matter developed, I would have upheld the submission of the respondents and interveners that the Court should determine the "pastoral lease question" in this case. Until determined, as it might have been, it will remain a Damoclean sword hanging over the operation of the Act and the rights of many parties, including those presently before the Court.

The statutory scheme

13. For the resolution of the "procedural" point it is necessary to determine the meaning of s 63(1) of the Act. That section reads:

"If the requirements of section 62 are complied with in

relation to the application, the Registrar must accept it, unless he or she is of the opinion:

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

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

14. The application to the Registrar on behalf of the applicants was made on 27 June 1994. It was not suggested that it was otherwise than in accordance with the prescribed form (Schedule 1) and accompanied by the affidavit required by s 62(1) of the Act expressing the applicants' belief that native title had not been extinguished. Nor was it suggested that the statements made in the application were untrue, that the land was inaccurately described or that the applicants do not represent the Waanyi people.

15. The miscarriage of the procedures which are required by the Act appears to have arisen following an unsolicited letter of 30 June 1994 sent to the Registrar on behalf of the second respondents. This expressed concern that the application might be accepted in respect of the subject land without the Registrar's having pertinent information. Those companies have contingent interests which could be affected if a claim to native title to the land were accepted. The Act does not contemplate that persons in the position of the second respondents must be formally notified of the claim at the time of the lodgment of an application with the Registrar. Indeed, the Act contains no provisions whereby, at that stage, they may become "parties" to the application. However, in the nature of such claims, they tend to attract publicity, especially locally. Presumably it is in this way that the second respondents came to know of the application and to make their representations to the Registrar. These representations resulted in the provision to the Registrar of various documents, obtained from various Queensland authorities, relating to the alleged history of dealings in the land. This material, in turn, was forwarded to the Carpentaria Land Council for comment on behalf of the applicants. Detailed submissions were then made. On 12 August 1994 the Registrar, on the basis of the foregoing, formed the opinion that prima facie the applicants' claim could not be made out. Pursuant to s 63(2) of the Act, she referred the application to the President with notice of her opinion (117).

16. Having received the reference, the President was then obliged to act as s 63(3) of the Act requires. If he were of the same opinion as the Registrar, he was obliged to advise the applicants in writing of the fact, to give them the opportunity to satisfy him, relevantly "that a prima facie claim can be made out". If then so satisfied, the President must direct the Registrar to accept the application. If not so satisfied, he must direct the Registrar not to accept it.

17. Having considered the matter, there followed a very extensive proceeding before the President which ultimately resulted in a direction of the latter kind. Effectively, this confirmed the Registrar's opinion. It is worth mentioning a little of the detail of the course which then followed for it is relevant to my conclusion that it is not what the language of the Act, its scheme and purpose envisaged.

18. On 18 August 1994 the President notified the applicants that he was of the same opinion as the Registrar on the ground that the native title claimed by them had been extinguished by the grant of a pastoral lease over the land118. Invitations were given both to the applicants and to the present respondents (although not then "parties") to make submissions. A preliminary hearing took place in Brisbane on 25 August 1994. A ruling on the procedures to be followed was made on 15 September 1994 (119). Over the objection of the applicants, the President decided that the Registrar, although not obliged to make inquiries and receive information was entitled to do so.

19. The President next sought submissions on the substantive issues. This produced submissions covering "thousands of pages" of supporting documents. A directions hearing was heard on 23 September 1994. A substantive hearing was conducted on 8 and 9 September 1994. The ruling of the President rejecting the native title claim was made on 14 February 1995. The basis of the ruling was the extinguishment of the native title by the grant by the Crown of a lease inconsistent with its continuance.

20. Before the Federal Court and eventually before this Court the applicants argued that, in adopting the procedure described, the President, and by sanctioning it, the majority of the Federal Court, had misconceived the functions assigned to the Registrar (and the President) by s 63 of the Act. They had deprived the applicants of the valuable privileges of negotiation and mediation contemplated by the Act. And they had imposed upon the procedures established by the Parliament undue delay, complexity and cost inappropriate to the ex parte, administrative consideration of a "claim". In short, they had misconceived the proper functioning of the Tribunal and prevented the achievement of the purposes of the Act.

21. The President, in the Tribunal, and the majority in the Federal Court rejected the applicants' objections to the procedures adopted. The President, as I have indicated, considered that the procedures adopted by the Registrar were open to her. Addressing his attention to the meaning of the opinion "that prima facie the claim could be made out", the President said (120).

"(T)hat ordinary meaning of the words is in some degree

metaphorical and does not, in my opinion, preclude some investigation by the registrar for the purpose of determining whether it can be said at the outset that the claim could not be made out. She may, for example, conduct a current land tenure search and discover that part of the area under claim is freehold land which has clearly extinguished native title. Having so found, she could rightly conclude that prima facie the application could not succeed. She might also conduct a land tenure history search and discover that some leasehold interests, had been granted in the past which, in her opinion, left no room for doubt that native title had been extinguished. Again, she could properly come to the conclusion that, prima facie, the claim could not succeed. Or she might seek some advice on the plausibility, from an anthropological perspective of the native title rights and interests claimed and come to the conclusion, on the basis of such advice, that prima facie the claim could not succeed."

The Federal Court was not reviewing, as such, what the Registrar had done but what the President had determined. At that point (having regard to the Registrar's opinion) the onus had shifted to the applicant to demonstrate "that a prima facie claim can be made out". The majority of the Federal Court was not prepared to dispose of the appeal on the basis of the applicants' objection to the procedures which had been followed. But it is fair to say that some of their Honours' remarks evidence a disquiet about those procedures. This was unsurprising given the delay which the procedures had imposed upon the consideration of the claim, the numerous hearings involved, the enormous bulk of written material which was generated, the cost incurred and the consequent deprivation of the facilities contained in the Act, including those of negotiation and mediation. Thus Hill J in his reasons (121) said:

"(The question) is whether the manner in which his Honour

approached the issue before him and in particular by considering evidence both on continuous attachment and extinction which was voluminous and submissions which were, to say the least, lengthy, went so far beyond the process contemplated by s 63(3) as to amount to error. There is some substance in this submission.

It must be recalled that the inquiry under s 63(3) exists in

the context of determining whether an application is to be accepted. The legislation contemplates that inquiries into and determinations of the existence of the title claimed will follow later. Disputed claims will not be decided by the tribunal but by this court, if the matter is referred to it under the Act, or in proceedings at common law. Notwithstanding the injunctions upon the tribunal to act efficiently and economically, the Act does not contemplate the full scale litigation which his Honour's calling for evidence and submissions brought about."

Nevertheless, "on balance" the Federal Court majority declined to uphold the applicants' objection on the procedural point. In this way the Court went on to examine the "pastoral lease question". Whilst critical of the extensive process of fact-gathering observed in this case, the Court preferred to grapple with the more fundamental question which was said to be at its heart. The majority determined that the applicants' native title had been extinguished by the later lease relied upon by the respondents (the 1904 lease). The Federal Court thus upheld the order of the Tribunal rejecting the applicants' claim. It is from the orders which followed that decision that the application for special leave to appeal came to this Court.

Approach to the legal question

22. The "procedural" question is obviously important to the administration of the Act. That is why this Court isolated it and dealt with it first. Getting claims before courts or tribunals empowered to determine native title disputes is obviously critical to an applicant. Unless a claimant can pass through the initial gateway, it will find it difficult, or impossible, to come at justice.

23. In other jurisdictions, it has been recognised that, in relation to a land claim on behalf of indigenous people, an approach may be taken at the initial stage which, later, more detailed analysis shows to have been unduly generous to the applicants. Thus in Re Paulette (122) the Supreme Court of the Northwest Territories of Canada had to consider a claim by "various Indian bands" for a caveat in respect of unextinguished native title claimed over 400,000 square miles. The Court upheld the claim, Morrow J commenting (123):

"Because of the nature of these proceedings I do not

consider it necessary to consider the evidence in depth. As I see my function, I am to look for a prima facie situation or a situation which may promise a possibility of a claim. At such point, if reached, I must then stop. It will be for some other tribunal to make the in-depth analysis of the evidence, to rework the same ground, and to make the final assessment."

24. The approach adopted by the Registrar and by the President in this case was entirely different. It was the approach which they each felt they were entitled, or obliged, to take having regard to the terms of the Act. But their approach did not pass without critical comment either in the observations in the Federal Court, to which I have referred, or in commentary upon the operation of the Act (124).

25. The meaning of the critical expression ("that prima facie the claim cannot be made out") must be derived from the words used by Parliament as understood in their context and for the achievement of the apparent purpose to be attributed to Parliament. The duty of fidelity to the legislative language has been emphasised many times in this Court, including recently (125). Where a phrase such as a "prima facie ... claim" or "prima facie case" is used, it may be helpful to have regard to earlier decisions which have considered such expressions in different statutory contexts (126). At a general level, there is not much dispute that, by directing the attention of the Registrar to form the opinion whether "prima facie the claim cannot be made out" the Act requires him or her to reach that opinion "at first sight" or "based, or founded, on first impression". But generalities must give way to the specific context of the language of the Act. Remarks made concerning similar expressions in earlier cases arising under other legislation must be subordinated to the meaning to be ascribed to the phrase used in the present context. That context is in many ways peculiar. General cautionary words about lifting elaborations of statutory phrases offered in one statutory context for application to another must be read with special vigilance in seeking to give meaning to the phrase used in the present novel legislation. Its expression is often opaque. But it is obviously designed to provide a just, efficient and accessible scheme for the consideration of native title claims following the decision of this Court in Mabo (No 2).

26. In approaching the meaning of particular provisions of the Act, and in defining the mischief to which the particular provision in question is directed, it is pertinent to notice some of the statements in the Preamble by which the Parliament sought to explain its general purposes. These include (127):

"A special procedure needs to be available for the just and

proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

27. Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a) claims to land, or aspirations in relation to land, by

Aboriginal peoples and Torres Strait Islanders; and

(b) proposals for the use of such land for economic

purposes.

...

It is also important to recognise that many Aboriginal

peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.

The Parliament of Australia intends that the following law

will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia."

Not only is the Preamble to the Act unusually long. Its language is unusually discursive. But this is doubtless because it addresses a significant matter of justice occasioned to the indigenous inhabitants of Australia which moved the Parliament, after the decision in Mabo (No 2), to enact the Act. Whilst the Act must be construed in accordance with its terms, it would be wrong for this Court, or any court or tribunal in the land, to construe it narrowly or to sanction procedures which would have the effect of undermining, or frustrating, its operation as the Parliament envisaged.

Arguments supporting the adopted procedure

28. In my approach to problems of statutory construction I am rarely attracted to the assertion that only one construction is available. By the time such problems reach appellate courts - and particularly this Court - the judicial task is one of considering the competing arguments and choosing the construction which appears preferable. That choice is better made after a candid evaluation of the arguments which support the competing conclusion. It is so in this case.

29. Amongst the principal arguments which tend to support what was done by the Tribunal and sanctioned by the majority of the Federal Court, are the following:

1. By enacting a provision for the rejection, at the

threshold, of an application where the Registrar is of the opinion that prima facie the claim cannot be made out, it must be accepted that Parliament intended that such cases would arise from time to time. They would arise apart from cases of frivolous and vexatious applications, separately provided for. They might arise from the very moment that the Act came into force and before the major legal controversies affecting native title claims had been clarified. In other contexts, a fatal legal flaw has been held to be within the notion, defeating a prima facie case sought to be made out (128). If, in this case, it could readily be established that a claim was subject to a fatal legal flaw, that was, so the respondents argued, the very kind of instance for which the relief under s 63(1)(b) of the Act was available to those who would otherwise be vexed by a claim ultimately doomed to fail. A safeguard against unwarranted exclusion of the claim at such a preliminary stage was provided by the requirement, in s 63(2) of the Act, that the Registrar must refer any such opinion to a presidential member. With that safeguard, the section should be given an ample construction to permit, in effect, a point of law to be raised at the threshold if the Registrar, with notice of it, considered it to be appropriate to do so;

2. In support of that facility is the power given to the

Registrar by s 65(1) of the Act, with the approval of the President, to exercise any of the powers "in relation to an application" that the Tribunal may exercise under ss 155 to 159 of the Act. These include the power to receive documents, the disclosure of which may be prohibited (s 155); to take oral evidence (s 156); to authorise another person to take evidence (s 157); to use interpreters (s 158); and to retain and copy documents (s 159). Whilst such powers might occasionally be required to deal with suggestions that an application is frivolous or vexatious or that it does not comply with the formal requirements of s 62 of the Act, on the face of the Act the subsection suggests that, with the approval of the President, the Registrar is permitted to receive evidence of the kind taken in the instant case, once a serious possibility of a fatal legal flaw was put into the mind of the Registrar, from whatever source;

3. As the progress of the instant case demonstrates, and as

common experience suggests, land claims of any kind, and native title land claims in particular, are apt to involve protracted litigation. Such litigation is time-consuming, costly, distracting and sometimes stressful for those involved. A facility for the ready disposal of such a claim at the very outset, on the basis of a suggested legal flaw, should not be read out of the Act, for that was precisely what was meant by affording the Registrar power to refer the matter to the President if of the opinion that "prima facie the claim cannot be made out". To dispose of such a claim at an early stage is not only in the interests of those who dispute the claim to native title. Their rights might otherwise be held in abeyance by acceptance of the claim for a very considerable time until the claim is finally determined. But it may also be in the long-term interests of the claimants who will otherwise embark upon a lengthy proceeding only to find it denied after much cost, time and anxiety have been expended;

4. The question whether pastoral leases extinguish native

title to land in Australia was touched upon by members of this Court in Mabo (No 2) (129). The point did not have to be finally resolved in that case. In the Preamble to the Act, the Parliament stated that this Court had:

"(c) Held that native title is extinguished by valid

government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates."

As it had been suggested to the Registrar that a question

arose at the threshold, it was both convenient and lawful for her to form an opinion on the question. By then referring the matter as the Act required to the President, she tendered an important issue for resolution. Potentially it could affect this and many other claims. The lawful resolution of the point of doubt would promote the good administration of the Act. Even if others might not have exercised the power in the way the Registrar did, she had that power. It was open to her, in the discharge of her statutory functions, to determine the preliminary point, reach an opinion and invoke the jurisdiction of the President who (subject to any constitutional disqualifications) would then conveniently decide the point not only for the instant case but, by analogy, for many others waiting in the wings for determination. If any person affected by the present application were aggrieved by the President's decision, a facility of appeal to the Federal Court would arise under s 169(2) of the Act ; and

5. The Registrar, and the President, are obliged and

entitled to find and apply the law to a claim for native title. The Tribunal is not exempt from the application of the law because it is an administrative body (130). If, on the basis of factual material placed before the Tribunal, a clear view is formed that, as a matter of law, the claim to native title could not be made out, it would be unrealistic and unreasonable to suggest that the claim should nonetheless be accepted merely so that negotiations may take place. What would then be accepted would not constitute a "claim" to "native title" as defined. The facilities of negotiation and mediation would be empty. The claim would be known to have a fatal legal flaw. In such circumstances, the sooner the suggested flaw was disposed of, the better for all concerned, and for the husbanding of the scarce public resources of the Tribunal (and the Court) for dealing with the many other claims which are free of such defects.

I acknowledge the force of these arguments. They carried the Tribunal and the majority in the Federal Court. I do not pretend that the meaning to s 63(1)(b) of the Act is completely clear. However, in the end, I have reached the view that what happened in this case not only frustrated but is contrary to the purpose and scheme of the Act. Within the context of that scheme, s 63(1)(b) of the Act must be given a meaning which avoids the procedure that was adopted on this occasion.

The preliminary consideration of claims

30. A number of considerations in the Act support the applicants' case. They drove me ultimately to the conclusion reached by the Court on the "procedural question":

1. The language of s 63(1) is imperative. The Registrar

"must accept" the application. He or she must do so unless of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out. The terms of s 63(1)(a) give a clue as the administrative procedure envisaged and the very limited circumstances in which par (b) will apply. Often (although not always), what is frivolous or vexatious will be manifest on the face of the application. Similarly, it is where, on the face of its terms, the "claim" (not the "case") cannot be made out that s 63(1)(b) applies. The clear indication of the opening words of s 63(1) and of the procedure it enlivens, is that ordinarily a claim, formally valid, must be accepted. The exceptions are very limited. They involve extreme cases. This impression of the intended operation of s 63(1) is confirmed by a consideration of the character of the donee of the statutory powers nominated and by the way in which the subsection fits within the overall scheme of the Act giving successive functions to the Registrar, the Tribunal and the Federal Court;

2. The obligation to give notice to "all persons whose

interests may be affected" is specifically provided for in the Act. It is contained in s 66(1)(a). But that paragraph arises for operation only after the application is accepted under s 63. Yet in the instant case, both the Registrar and the President felt the need to give notice, at the preliminary stage, in order to invite detailed submissions from persons affected. Without commenting on the propriety of their doing so, in the way in which they each approached their functions (131), the consequence was to telescope a procedure which the Act provides will arise at a later stage, after the application has been accepted and the procedures before the Tribunal have been properly invoked;

3. Such a telescoping has a serious consequence for an

applicant. Whereas at the stage of the presentation of a claim to the Registrar, he or she is ordinarily obliged to accept it, after the contrary opinion is formed, by s 63(3)(a) of the Act, the burden of establishing that "a prima facie claim can be made out" shifts to the applicant. Given the ordinary purpose of the Act, to facilitate the receipt of claims, shifting the burden to the applicant at such an early stage, in effect to prove that the claim can be made out, constitutes a significant departure from the apparent scheme of the Act. It is also a departure from the ordinary procedures by which claims in this country are usually initiated in courts and tribunals. It is not usual, at the stage of the filing of a claim which invokes the jurisdiction of a court or tribunal, for the applicant to be required to prove that "prima facie a claim can be made out". It would normally require something quite exceptional to afford a person with an adverse interest such an advantageous position to exclude the claim at such a stage;

4. It is only once the claim is accepted that the Registrar

is obliged to record details of the application in the Register of Native Title Claims, with the statutory consequences which attach to that act (132). Notice must only then be given to a wide range of persons and to the public (133). Only then is the Tribunal empowered to decide, if necessary, that the interests of a person may be affected (134). If, then, an application is unopposed, and if the Tribunal is satisfied "that the applicant had made out a prima facie case for a determination" and that it is just and equitable to do so, the Tribunal is empowered to make a determination (135). Similarly, if the parties reach agreement, as they may by discussion amongst themselves, the Tribunal is afforded power to make a determination in accordance with, or consistent with, the terms of the agreement (136). If there is no such agreement, the President is obliged to direct "the holding of a conference" (137). This must be presided over by a member of the Tribunal (138). It is given the statutory protection of without prejudice negotiations (139). Facilities are available, such as participation by telephone, closed circuit television or other means of communication (140). The statute envisages that, after such a mediation conference, there will be some cases where the parties agree. The Tribunal is then empowered to make a determination in, or consistent with, the terms of their agreement (141). Only if the matter is still not settled by a determination by the Tribunal is the Registrar obliged to lodge the application in the Federal Court for its decision.

It is important to emphasise that the purpose of the

Tribunal is to facilitate negotiation, discussion and agreement, if at all possible. Where a dispute persists, the Tribunal has no jurisdiction to resolve it. The unresolved dispute is referred to the Federal Court for judicial determination. The proper meaning and application of the registration of claims, envisaged by s 63, must be understood in the context of such a tribunal with such procedures. It would be curious, and an apparent negation of the detailed procedures of the Tribunal, if claims could too readily be excluded from acceptance by the application of s 63(1)(b) and the adoption of the very extensive preliminary proceeding which unfolded in this case. Specifically, to give the paragraph such a meaning would be to deprive the applicants of the facilities of mediation and negotiation enacted by the Parliament in the hope of promoting settlement by conciliation as the Preamble to the Act expressly envisaged;

5. A limited view of the facility afforded by s 63(1)(b)

does not frustrate the right of a party to raise objections of a legal character to the effect that a claim to native title is "fatally flawed". If a respondent raises and maintains that objection, and the application is not settled, it must be referred to the Federal Court. The Tribunal then has no power to determine it. If at any time a respondent identifies a crucial legal question, it may ask that the member presiding determine it as a preliminary matter (142). The Tribunal may, on its own initiative or on the request of a party, refer such a question of law arising in an inquiry to the Federal Court for decision (143). Ordinarily it would be expected that such a question would not be referred until the procedures envisaged by the Act had been fulfilled: ie all affected persons had been notified and given an opportunity to be heard; opportunities for negotiation and mediation explored and exhausted; and the factual issues in contest resolved by appropriate findings. Instead of following these procedures, laid down by the Act, the approach to s 63(1)(b) adopted on the present application diverted the claim to exhaustive preliminary hearings. This was done before the facts were fully explored and before the applicants could have the benefit of the negotiation and mediation procedures which Parliament saw as components essential to the just and efficient determination of claims of this kind, necessary because of their "unique character". Clearly, the procedures adopted disadvantaged the applicants. They were deprived of the chance to have their undetermined claim submitted to mediation; and

6. The course adopted also took place in a context where the

law concerning the impact of pastoral leases on the continuance of native title was clearly identified by this Court as a major issue but not determined. Sometimes, in negotiation, uncertainty of each side is an advantage. Neither side being absolutely sure how the legal cards will fall out, they can negotiate an agreement which might not ensue if it were authoritatively determined that one side had, or did not have, a legal claim. Far from saving costs and time, the lengthy preliminary procedures which occurred on this occasion demonstrate the wisdom of the statutory scheme of directing parties, after a claim is accepted, to a conference, the object of which is to help resolve the matter. In the procedure adopted, the chance of such resolution was lost. A telescoped hearing took over from the provisions enacted by the Parliament. Instead of a claim, disputed by parties, being referred to be determined by the Federal Court after all such preliminary hearings were exhausted, the Tribunal effectively assumed the Court's ultimate function and determined the disputed claim at the outset adversely to the applicants.

31. Having set s 63(1)(b) of the Act in the context of the overall statutory scheme, and demonstrated how its meaning was misunderstood and mis-applied in this case, it is necessary to say something about the correct construction of the paragraph. It is important to notice the difference between the use of the phrase "prima facie ... claim" in s 63(1)(b) and "prima facie ... case" in other sections of the Act, eg ss 70, 148. That distinction lays further emphasis upon the approach which the Registrar is required to take upon receipt of a "claim". That approach envisages examination of the claim on its face. It does not envisage the consideration of additional factual material unless something on the face of the claim clearly raises a serious doubt that the claim cannot be made out. It is not the function of the Registrar, at that stage, to receive, still less to invite, evidence or submissions which will produce doubt which does not exist on the face of the claim. To do so would be to defeat the scheme of the Act. To the extent that the Registrar did so in the present case, and to the extent that the President failed to correct her and went on to compound her mistake, an error of law occurred. It was a serious error which the Federal Court should have corrected. It should have done so because it is essential, at this early stage in particular, for the procedures of the Tribunal to be properly ordered, conformably with the Act. The point was clearly raised before the Federal Court by the applicants. They should have had relief upon it.

32. This view of s 63(1)(b) of the Act still leaves the paragraph with work to do. On the face of the claim there may be an obvious flaw, just as applications which are frivolous or vexatious will often be manifest on their face. I do not say that the powers provided to the Registrar by s 65(1), with the approval of the President, to receive documents and take evidence may not be available in certain very exceptional cases following lodgment of an application. But the need for such material must appear, as s 63(1)(b) envisages, on the face of the claim. It cannot be imported by an initiative of a contesting interest, taken out of order which, if allowed to succeed, will subvert the scheme of the Act.

33. It is a barren exercise to decide whether (as the applicants claim) the Registrar lacked power under s 63(1)(b) to do what she did or (as I am inclined to think) she exercised her powers according to a wrong principle and in a way that was never envisaged by the Act. In either case, her opinion ought to have been corrected by the President. If not corrected by him, it ought to have been corrected by the Federal Court. The usual restraints which govern, and in my view rightly govern, the striking out of claims before parties have had the opportunity to advance them in an orderly fashion and in the usual way (144) apply with even greater force in the context of this Act, with its large national purpose and its carefully designed procedures.

34. It not being suggested that any flaw in the applicants' claim was obvious on the face of the claim itself, and the proof of the suggested flaw involving such protracted, extensive and expensive procedures, the only proper exercise of the power conferred on the Registrar by s 63(1) of the Act was in this case to accept the claim. Without more, that conclusion would sustain the orders announced by this Court in disposing of the application, and the appeal, on 8 February 1996.

The issue of pastoral leases

35. But there is more. The case cannot in my view rest there.

36. The proceeding before this Court was an application for special leave to appeal. That application enlivens the jurisdiction of this Court to permit the determination, on appeal, when appropriate, of significant questions of law of importance to the Australian legal system. No one doubts that the suggested effect upon native title of pastoral leases, where proved, is a matter of the greatest importance not only to the present parties but to many other parties waiting for their claims to be determined (145). It is also important to the States of Australia and to the Northern Territory which asked this Court to deal with the "pastoral lease question". Further it is of great significance to the Australian community which, since Mabo (No 2), has been left in a position of uncertainty about the consequences of pastoral leases for native title. The application for special leave to appeal in this case would have afforded the Court an opportunity to elucidate that question. It is here that I part company from the other members of the Court. Far from being impossible of determination, I respectfully regard the "pastoral lease question" as one important to be determined and appropriate in this case.

37. The source of the uncertainty on the issue of pastoral leases derives from a point which did not have to be finally resolved in the facts of Mabo (No 2). Brennan J (146) stated that, under a lease granted by the Crown, where the Crown relied on its radical title, the lessee acquired possession and "the Crown acquired the reversion expectant on the expiry of the term". Thus, "on the expiry of the term" the Crown's title was expanded to plenum dominium. But various other passages in Brennan J's reasons suggest that his Honour considered that the Crown's act of granting a lease under its radical title might be capable of extinguishing native title at the point of the grant (147). Mason CJ and McHugh J, who generally agreed with the reasons of Brennan J in Mabo (No 2), insisted that the formal order of the Court be "cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration" (148). Consequently, the declaratory order made by the Court excluded reference to the effect in that case of the grant of a lease by the Crown (149).

38. Deane and Gaudron JJ appear to have acknowledged that native title could be extinguished by an unqualified grant by the Crown of an inconsistent estate in the land, such as a grant in fee or a lease conferring the right to exclusive possession (150). As I read the reasons of Toohey J, his Honour did not decide the question. Dawson J (in dissent) was of the opinion that, upon an annexation of the Murray Islands, the Crown obtained the entire beneficial interest which extinguished any pre-existing native title. So far as the effect of the grant of a lease was concerned, his Honour was quite plain that such leases were (151):

"inconsistent with the preservation of native title,

although in the latter case the lease was subject to conditions that the lessees would not in any way obstruct or interfere with the use of the Murray Island natives of 'their tribal gardens and plantations' on the demised land and would not in any way obstruct or interfere with the operations of the Murray Island natives who fished around the reefs adjacent to the demised land. The construction of public buildings and the carrying out of public works on the islands is also inconsistent with the preservation of native title."

39. The consequences of the grant of leases, and the particular consequence of the grant of pastoral leases of the kind common in colonial and immediately post-colonial Australia, and alleged to have been granted here, are therefore extremely important questions for the preservation or extinguishment of the native title claimed in this case. So much was urged by the respondents. It was also argued by each of the interveners. So much was initially urged for the applicants. Through their counsel they told the Court, on the original return of the application for special leave, that they would be in an extremely difficult position if the matter were returned to the Tribunal after determination of the procedural point only. The President would then be faced with a decision of the Federal Court that there had been an extinguishment of native title in this case. That decision might not, in law, bind the parties as res judicata. It might be deemed obiter, having regard to the way the procedures in the Tribunal had miscarried. But it would inevitably affect the respective positions of the parties. It would necessarily influence the conduct of the proceedings before the Tribunal.

40. When this Court's position was made clear, the applicants resiled from this position. They embraced the suggestion that they should return to the Tribunal to start again with their claims. With all respect, I cannot agree, in the events which have occurred, that such is a proper disposal of the application for special leave. It is right for the Court to identify the procedural error. But it would be wrong for the Court to ignore the important public interests, and the interests of parties, by postponing the determination of the "pastoral lease question" now proffered to it by the decision under appeal.

41. Mine is a minority view in this regard. Let me attempt to explain my reasons:

1. Whether the President and the Federal Court should have

proceeded, to determine the effect of the pastoral leases upon the applicants' claims to native title or not, they did so. There is now a decision of a court, with the authority of the Full Court of the Federal Court of Australia, that the applicants, in law, have no claim to native title for it has been extinguished by operation of law. That decision cannot be wished away. It is either right or wrong. One day, sooner rather than later, this Court will have to deal with the effect of pastoral leases. The respondents, whose interests were vitally affected, asked that it do so in their case. The question arose on an application from the Federal Court which tendered the issue to this Court fairly and squarely. In my view, the responsible exercise of the special leave discretion required that the issue be addressed now;

2. To suggest that such a course would, effectively, deprive

the applicants of their entitlements to the full procedures laid down by the Act strikes me as unrealistic. Whether they should have received the benefit of the opinion of the Federal Court or not, the respondents are now its beneficiaries. They seek to uphold it. Doubtless they will seek to do so before the Tribunal. They are entitled to do so in any mediation conference. If they insist, the application must be lodged in the Federal Court for decision (152). Whilst uncertainty may sometimes be an advantage in negotiation and even promote settlement, an important ingredient of uncertainty has been removed in this case by the decision of the Federal Court. As between the present parties, it would be unrealistic to believe that they can be restored to the status quo ante. The applicants negotiate from the standpoint of a determination that their purported claim to native title has been held by an appellate court to be extinguished by law. That may be to place the applicants in an unfairly disadvantageous position for the conduct of their negotiations. Returning the claim to the Tribunal, in the face of the determination of the Federal Court that it is empty and barren in substance, is certainly an injustice to the respondents. The promise of legislation which may deal with procedural provisions of the Act is a further reason for withholding special leave confined to the "procedural question". The "pastoral leases question", on the other hand, is unlikely to be affected by any currently proposed amendments to the Act. Until decided, that question will remain a source of uncertainty in an area of the law where certainty is desirable;

3. The procedural order leaves the opinion of the Federal

Court standing. It is true that another Bench of that Court might reach a different opinion. But it seems likely that, whilst it stands, the majority opinion of the Federal Court in this case will have a significant effect not only on future decisions of that Court but on the negotiations of the present parties and of many others throughout Australia. All will be left in a position of doubt until this Court finally resolves the consequences of pastoral leases for the continuance or extinguishment of native title and the associated constitutional question which the applicants wished to argue. Such points may be good. Or they may be bad. But for the determination of the scope and continuance of native title and the delineation of its limits, as well as of the operation of the Act, it appeared to me essential that the Court shall decide the point;

4. Lest it be suggested that such a determination would

reveal the very limited benefit which Mabo (No 2) actually provided to Australian Aboriginals and Torres Strait Islanders, faced with the multitudinous and extensive grants of pastoral leases in colonial and post-colonial Australia, the proper answer is that, if such be their position in law, it is as well that it be clarified soon. Then only will the bitter disappointments of falsely raised expectations be allayed and the opportunity afforded to parliaments throughout Australia to correct the injustices which Mabo (No 2) called to notice. That further legislative correction would probably be necessary was recognised by the Parliament in the enactment of the Act. The Preamble contained the assertion that the people of Australia intend:

"(a) To rectify the consequences of past injustices by the

special measures contained in this Act, announced at the time of introduction of this Act into Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) To ensure that Aboriginal peoples and Torres Strait

Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire." In the event that this Court were to hold that pastoral leases, validly granted in colonial and post-colonial times, extinguished in large areas of Australia the native title which would otherwise have survived under the principles stated in Mabo (No 2), it would be for the Parliament, and for State and Territory legislatures, to consider any supplementary enactments which were required to "rectify the consequences of past injustices by ... special measures". It is unrealistic to expect the courts to rectify all such injustices;

5. In another statement in the Preamble, the Act asserts:

"The needs of the broader Australian community require

certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts."

In land law certainty is a dominant demand of every mature

legal system. It is highly undesirable that the entitlements of large numbers of Aboriginal communities and of numerous parties holding competing interests which have followed pastoral leases (or intending or asserting interests over land, the subject of such native title claims) should be left in a state of uncertainty. So far, the question has been approached on a case by case basis. See Pareroultja v Tickner (153). But this is done without the benefit of clear guidance from this Court;

6. No outstanding factual issue remained to be decided

pertinent to the "pastoral lease question" in this case. All of the relevant and voluminous documentation was before this Court. No possible, specific new point was suggested. To the extent that any factual issue remained undetermined, the course adopted in the Federal Court was appropriate, viz that its resolution should be assumed, at this stage certainly, in favour of the applicants. Where important questions arise for the determination of the rights of parties, the balance of convenience will sometimes suggest that this Court should proceed to decide the point (154). This, in my view, was such a case;

7. The initially expressed concern of the applicants, later

abandoned was, in my view, justified. When the matter is returned to the Tribunal and the claim accepted by the Registrar, it will remain open to the respondents, or any of them, to move the Tribunal for relief based upon s 148 of the Act. In support of such relief they may invoke the decision of the Federal Court on the (lack of) legal basis of the applicants' claims. Section 148 provides:

"The Tribunal may dismiss an application, at any stage of

the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application."

This section applies after the claim has been accepted. By

its terms, it applies "at any stage of the inquiry". It is not irrelevant that s 109(1) of the Act states that the objectives of the Tribunal's way of operating are to carry out its functions "in a fair, just, economical, informal and prompt way". The last adjective must not be overlooked. Armed with the opinion of the Federal Court on the "pastoral lease question", until reversed, it may be envisaged that the respondents would seek to protect their interests and to rely upon the determination of those interests by the Full Court. Parties cannot be forced into agreement or even into fruitful negotiation. If the respondents insist, sooner rather than later the matter would be returned to the Federal Court where it seems most unlikely that a different result would ensue from a reconsideration of it; and

8. In the consideration of whether an appellate court should

grant leave to appeal, or, more particularly, whether this Court should grant special leave to appeal, it is always pertinent to look to the end of the litigation. Where procedural mistakes are shown, it is by no means unusual, accepting those mistakes, to ask whether, in the result, any substantive injustice has been done to the party complaining. If, in the final consideration of a claim, a procedural error has short-cut a proceeding which is otherwise doomed eventually to fail, it is common for the court considering leave or special leave to take into account, in its decision, the ultimate prospects of success (155). This is because courts are typically concerned with husbanding the provision of relief to deserving cases and with correcting orders rather than the reasoning which sustains those orders. Thus, in the present case if, although the applicants' claims ought to have been accepted by the Registrar, it is revealed, on a proper analysis of those claims, that they are bound to fail (eg because of a fatal legal flaw), whilst a procedural injustice has been done to the applicants, no substantive injustice will have occurred. Moreover, a failure to resolve the uncertainty will undoubtedly delay many genuine cases which are now before the Tribunal, which may shortly be so, or which are not lodged, because of the uncertainty. So far as concerns the interests of other parties to have a proper procedure followed, and the public interest to have that procedure elucidated, remarks by the Court can make plain the procedural error. They can do so without necessarily providing relief.

The limits of advisory opinions

42. I cannot agree for a moment with the proposition that the determination by the Court of the "pastoral lease question" would have amounted to the impermissible provision of an advisory opinion, forbidden by the Constitution and the Court's past authority. Nobody suggested during argument that it would be so. In my opinion this is because, manifestly, it would not.

43. The current rather narrow state of authority on the Court's original jurisdiction to provide advisory opinions may one day require reconsideration as the Court adapts its process to a modern understanding of its constitutional and judicial functions (156). Since In re Judiciary and Navigation Acts (157) was decided in 1921 there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions. For example, the scope of the availability of the beneficial remedy of a declaration, to deal with an apprehended threat of invasion of rights, has expanded greatly, overcoming in the process some of the same resistance as lay behind the refusal to provide advisory opinions (158). The judicial function is not frozen in time. This Court should remain alert to developments in judicial procedures which further, in proper ways, the defence of the rule of law. So far as is compatible with the judicial function, courts should endeavour to be constructive and useful to parties in dispute. If courts do not adopt this attitude, those parties will look to other means, rely on their power or be left unrequited by their expensive visits to the courts.

44. The decision in In re Judiciary and Navigation Acts rested upon the view taken by this Court as to the meaning of "matter" when appearing in ss 75 and 76 of the Constitution, providing for the Court's original jurisdiction. That word was defined to connote "some immediate right, duty or liability to be established by the determination of the Court" (159). However, the foundation of the Court's appellate jurisdiction, as s 73 of the Constitution makes clear, is that the appeal lies from one or more of the following categories of curial dispositions, viz "all judgments, decrees, orders or sentences", relevantly to this case, of a federal court. As its wide language suggests, that phrase should not be given a narrow meaning. Least of all should it be so treated where the result is said to be to deprive this Court of jurisdiction to dispose of an appeal in a way that is both lawful and just.

45. Whatever else may be in doubt, it cannot be disputed that in the present appeal this Court has jurisdiction. Pursuant to a grant of special leave, the appeal is before it from a "judgment" or "order" of the Full Court of the Federal Court of Australia. Different views may be taken of the convenience of dealing with the "pastoral lease question". But the jurisdiction of the Court to proceed to hear argument on the question, as incidental to its determination of the undoubted "appeal", appears to be clearly established. This is not a case where the "judgment" or "order" under appeal arose out of legislation providing for an advisory opinion. No such legislation exists in this case. To that extent the case is quite different from Saffron v The Queen (160) or Mellifont v Attorney-General (Q) (161). The Federal Court's determination of the pastoral lease issue was necessary to its view of the proper determination of the legal rights of the parties.

46. I would resist any attempt to expand the principle against the giving of "advisory opinions" to a new doctrine which would deprive this Court of jurisdiction to deal with issues potentially critical to the rights of the parties properly before it in an appeal. To do so would impose on the Court a rigidity which its past practice and authority negate. Take for example the principle explained in Stead v State Government Insurance Commission (162). A holding of a breach of the rules of procedural fairness may not entitle an aggrieved party to relief. The breach may not have occasioned any ultimate injustice. If that is so "it would be futile to order a new trial" (163). There are many similar cases, before and since (164).

47. Far from giving comfort to any suggested expansion of the ambit of prohibited "advisory opinions", the holding in Mellifont returned the Court to the broad language of s 73 of the Constitution. So long as the "appeal" involves the hearing and determination of an appeal from a judgment decree order or sentence of a designated court, jurisdiction attaches. It may be inferred that, in the context of this Court's place in the Australian judicial hierarchy, the framers of the Constitution considered that it was enough that the designated court appealed from had made a dispository decision of the specified kind. To entertain an appeal from such a court and such a disposition is guarantee enough that the High Court is not being burdened with "functions not ancillary or incidental to the exercise of the judicial power of the Commonwealth" or "foreign to that exercise" (165).

48. The present case illustrates that any narrower view would produce extremely inconvenient consequences for the reasoning of the Court in deciding appeals. The pastoral lease issue is not a question divorced from the administration of the law in relation to an actual matter. It is far from an abstract legal question separate from the determination of the rights of the parties. On the contrary, if the arguments of the respondents before this Court and the opinion of the Federal Court are correct, the issue is the essential question in contest between the parties.

49. I understand the argument that disposal of the appeal on the wider ground offered by the respondents deprives the applicants of the benefit of procedural rights of economic value to which they are entitled. I am sympathetic to those rights. I certainly have no desire to add to the long history of injustices to the Aboriginal people. But neither, in a court of justice, do I wish to be an instrument of potential injustice to the respondents. They are entitled to look to this Court to resolve the parties' legal dispute and, if proved, to uphold their legal rights. In other circumstances I would uphold and defend the procedural rights of the applicants. But in the events which have occurred in this litigation, it remains to be seen whether the applicants' asserted rights are valuable (as the majority of the Court holds or is willing to assume) or whether they are legally without value (as the respondents assert and the Full Court of the Federal Court has held). To determine which view was right, and to avoid the risk of a barren exercise of litigation which merely postpones the resolution of the question, I would have addressed that issue. I would have done so not to provide an advisory opinion to the parties and the interveners. But to determine the essential legal controversy that is at the heart of their contest about their respective rights and obligations.

Conclusion and orders

50. It is for these reasons that my own preference was to order that this Court should proceed to hear argument on the "pastoral lease question" and the associated constitutional question concerning the suggested limitation on the power of the colony and State of Queensland. Twenty advocates appeared before the Court able to argue the point. All of them, save ultimately the applicants, asked that it be determined. The interveners, representing the Commonwealth, four States and the Northern Territory asked the Court to proceed. The written submissions of the parties, reflecting the original grounds of appeal, dealt with the point. No one contested its national importance. No procedural or jurisdictional impediment stood in the way. One day, certainly, the point will have to be resolved. I was quite unconvinced that the cup should pass.

51. My view did not prevail. The Court confined its consideration to the "procedural point". Upon that point I agree with the majority of the Court. With the reservation which I have expressed, I therefore agreed in the orders of the Court announced by Brennan CJ.

1 Published in the Government Gazette 8 June 1907 (Q) vol 1 folio 1555.

2 "An application must be in the prescribed form and be given to the Registrar. It must also contain such information in relation to the matters sought to be determined as is prescribed." The prescribed information is specified in reg 5(1)(a) of the National Native Title Tribunal Regulations.

3 Re Waanyi People's Application (No 2) (1995) 129 ALR 118 at 122.

4 Re Waanyi People's Application (No.1) (1994) 129 ALR 100 at 116.

5 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

6 (1995) 129 ALR 118 at 138.

7 (1995) 129 ALR 118 at 138-139.

8 Queensland Government Gazette at 297.

9 North Ganalanja v Queensland (1995) 132 ALR 565 at 571.

10 In accordance with Form 141 of the forms prescribed by the Rules of the Federal Court: see O 75 r 15(1).

11 Under O 75 r 15(10) of the Rules of the Federal Court.

12 (1995) 132 ALR 565 at 577.

13 (1995) 132 ALR 565 at 607.

14 (1995) 132 ALR 565 at 582.

15 (1995) 132 ALR 565 at 615.

16 (1995) 132 ALR 565 at 584.

17 (1995) 132 ALR 565 at 586.

18 If special leave to appeal were granted on this ground, the second respondent proposed to file a notice of contention submitting that the 1883 lease had extinguished native title.

19 Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 300, 303, 305, 314, 316-319.

20 In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257.

21 [1921] HCA 20; (1921) 29 CLR 257 at 266.

22 s 72.

23 [1992] HCA 23; (1992) 175 CLR 1.

24 [1992] HCA 23; (1992) 175 CLR 1 at 15, 69, 110, 196.

25 Mabo v Queensland (1988) 166 CLR 186 at 219.

26 [1992] HCA 23; (1992) 175 CLR 1 at 15, 58-62, 109-110, 187-188.

27 "Mischiefs" in the sense in which that term is used in Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a at 7b (76 ER 637 at 638) - that is, to indicate the problems for the resolution of which a statute is enacted. See Lukey v Edmunds [1916] HCA 25; (1916) 21 CLR 336 at 343; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 25-27.

28 s 68.

29 s 71.

30 s 73.

31 s 74.

32 s 139.

33 Oxford English Dictionary, 2nd ed (1989), vol XII at 470- 471.

34 s 28.

35 s 26(2).

36 s 29(2)(b).

37 ss 26(3), (4), 32.

38 s 31.

39 s 37.

40 s 38.

41 ss 35, 36.

42 The persons who may make an application are identified in a table forming part of s 61(1). They are not confined to a person or persons claiming to hold the native title and the requirements in s 61(2) apply to all applications under Pt 3 of the Act.

43 s 63(1)(b).

44 s 63(2).

45 s 63(3).

46 s 63(3)(a).

47 s 84(1).

48 s 85.

49 Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139 at 157-159.

50 s 64.

51 As O'Loughlin J noted in Northern Territory v Lane, unreported, 24 August 1995 at 45.

52 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584-585.

53 ss 74, 81, 84.

54 See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 258-259, 268, 269.

55 (1994) 129 ALR 100 at 115-116.

56 May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.

57 s 70.

58 ss 71, 73.

59 s 148.

60 (1995) 129 ALR 118 at 139.

61 (1995) 129 ALR 118 at 139.

62 s 63(1).

63 s 63(2).

64 s 169(2).

65 s 66.

66 s 68.

67 s 70(1)(a).

68 s 70(1)(b).

69 s 71.

70 s 72.

71 s 74.

72 s 142.

73 s 144(1).

74 s 145.

75 s 146.

76 s 148.

77 s 147.

78 s 151.

79 s 156(1).

80 s 166.

81 s 167(1). But see Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

82 ss 26, 28.

83 s 29.

84 s 31.

85 s 33.

86 Defined in s 27 as either the National Native Title Tribunal or a recognised "State/Territory body".

87 s 31(2).

88 s 37.

89 ss 35, 36 and 38.

90 [1904] HCA 38; (1904) 2 CLR 139 at 156-157.

91 s 66.

92 s 66.

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

Governments should, where appropriate, facilitate negotiation

on a regional basis between the parties concerned in relation to:

(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b) proposals for the use of such land for economic purposes.

It is important that appropriate bodies be recognised and

funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation."

94 ss 26-42, 72.

95 s 26(2).

96 s 63.

97 ss 70(1)(a) and 148.

98 cf May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654.

99 Cohen v Peko-Wallsend Ltd [1986] HCA 70; (1986) 61 ALJR 57 at 59; [1986] HCA 70; 68 ALR 394 at 397. The position is the same in the United States: Bowers v Columbia General Corp (1971) 336 F Supp 609; Everhart v Knebel (1976) 424 F Supp 390.

100 Cases such as Karaguleski v Vasil Bros and Co Pty Ltd (1981) 1 NSWLR 267 and Barclay Mowlem Construction Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451 that suggest that a judge is bound to determine disputed questions of law in such proceedings cannot now be accepted as authoritative.

101 cf Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545.

102 See Kunakool v Boys (1987) 77 ALR 435. See also Vereker v Rodda (1987) 72 ALR 49 - on appeal O'Donovan v Vereker (1987) 76 ALR 97; Saunders v Brown (1987) 72 ALR 66; Shepherd v Griffiths [1985] FCA 126; (1985) 60 ALR 176.

103 United States v Zerbst (1953) 111 F Sup 807; State ex rel Berger v Jennings (1974) 520 P 2d 313; State v Carter (1986) 714 P 2d 1217.

104 cf Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

105 Unreported, Federal Court of Australia, 24 August 1995 at 39.

106 In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265-267.

107 Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 300.

108 My reasoning did not have to lead to the conclusion that the extinguishment issue was not ripe for determination. This is because I have held that the Tribunal could refer to the extinguishment materials. In that context, a final decision by me on the extinguishment issue would not necessarily have been an advisory opinion. If, for example, I had held that the extinguishment materials so irresistibly pointed to extinguishment that there was no prima facie claim, the decision on extinguishment would be a binding one. But if I had taken that view, I could not have been a party to an order that the Tribunal accept the claim. Once I held that the question of extinguishment was an arguable issue and that the application of the Waanyi People should have been accepted, any final opinion of mine on the extinguishment issue could be advisory only.

109 Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120.

110 Re Waanyi People's Application (1995) 129 ALR 118. See also (1994) 129 ALR 100.

111 North Ganalanja v Qld (1995) 132 ALR 565.

112 [1992] HCA 23; (1992) 175 CLR 1.

113 North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 15; (1995) 69 ALJR 569.

114 Brennan CJ, Dawson and McHugh JJ.

115 Reference was made to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 which, it was suggested, occasioned the need for the proposed amendments to the Act or some of them.

116 Transcript of the special leave application, 15 December 1995, at 5ff.

117 By s 63 (2) the Registrar has little room to manoeuvre having formed the requisite opinion; cf Northern Territory of Australia v Lane, unreported, Federal Court of Australia, 24 August 1995, at 9.

118 The President relied on the grant under the "1883 lease" as explained in the reasons of the majority.

119 See Re Waanyi People's Application (1995) 129 ALR 100.

120 Re Waanyi People's Application (1994) 129 ALR 100 at 112.

121 North Ganalanja v Queensland (1995) 132 ALR 565 at 602.

122 (1973) 6 WWR 97. See also Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399.

123 (1973) 6 WWR 97 at 119. Relief was denied by the Federal Court of Canada. See Attorney-General of Canada v Morrow (1973) 6 WWR 150 at 156.

124 See eg Nettheim, "'Moral Shortcoming': Waanyi Peoples and Native Title", [1995] AboriginalLawB 27; (1995) 3 (73) Aboriginal Law Bulletin 10; Bartlett, "Undermining the National Native Title Tribunal - Waanyi No 1 and 2", [1995] AboriginalLawB 28; (1995) 3 (73) Aboriginal Law Bulletin 14; Kennedy, "Lawn Hill's Pastoral Leases: North Ganalanja and Bidanggu Aboriginal Corporations for the Waanyi People v Queensland and CRA"- case notes [1995] AboriginalLawB 57; (1995) 3 (77) Aboriginal Law Bulletin 17.

125 See eg Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518.

126 As to "prima facie case" see eg May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622; American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; (1975) AC 396; A v Hayden (No 1) (1985) 59 ALJR 1 at 4f; 56 ALR 73 at 77f; Bunker v Mahoney (1917) VLR 65 at 67; Re State Public Services Federation; Ex parte Attorney-General (WA) [1993] HCA 30; (1993) 178 CLR 249 at 303.

127 The Act, Preamble.

128 See eg May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.

129 See (1992) 175 CLR 1 at 15, 69 217.

130 See eg R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 399, 411f.

131 cf Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 576.

132 s 66(1)(b).

133 s 66(2).

134 s 69(1).

135 s 70(1).

136 s 71.

137 s 72(1).

138 s 72(2).

139 s 72(3).

140 s 72(5).

141 s 73.

142 s 144(1).

143 s 145(1). But see s 145(2).

144 See Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 619.

145 See affidavit of Ms Janine Ward of the Federal Attorney- General's Department. She deposed to reliable information that, at 23 November 1995, the Registrar of the Tribunal had received 156 applications for a determination that native title exists. "It is estimated that 86 of these applications related to land which was or had been the subject of a pastoral lease; 12 of these leases were held by or on behalf of Aboriginal people." Ms Ward also deposed that "in a number of mediation conferences ... the parties are often unwilling to mediate in relation to claims on land which is or has been subject to the grant of a pastoral lease while the effect of that grant on native title is unresolved".

[1992] HCA 23; 146 See Mabo (No 2), (1992) 175 CLR 1 at 68.

147 [1992] HCA 23; (1992) 175 CLR 1 at 61, 69, 72-73.

148 [1992] HCA 23; (1992) 175 CLR 1 at 16.

149 [1992] HCA 23; (1992) 175 CLR 1 at 217.

150 [1992] HCA 23; (1992) 175 CLR 1 at 110, 117.

151 [1992] HCA 23; (1992) 175 CLR 1 at 158.

152 See s 74 of the Act.

153 [1993] FCA 465; (1993) 117 ALR 206 at 214.

154 See eg Kruger v The Commonwealth (1995) 69 ALJR 885.

155 See eg Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507 at 515. "Logically it should follow that the appeal should be dismissed. However, we have heard full argument on the questions upon which the fate of the action depends and have reached the conclusion that the defence raised by the respondent must fail. No fact is in dispute. It has not been suggested that there is any other matter on which argument could usefully be advanced. If the action is sent to trial, the Court will be bound to apply our statement of the law and the appellant must succeed. In these circumstances it would be absurd to give the appellant leave to defend the action."

156 See Australia, Commonwealth Parliament, Senate Standing Committee on Constitutional and Legal Affairs, Advisory Opinions by the High Court, Paper No 222 (1977), par 10; Crawshaw, "The High Court of Australia and Advisory Opinions" (1977) 51 Australian Law Journal 112 at 125-126; Official Record of Debates of the Australian Constitutional Convention, Perth, (1978) at 28-49, 203-204. Contrast The State of South Australia v The State of Victoria [1911] HCA 17; (1911) 12 CLR 667 at 675.

157 [1921] HCA 20; (1921) 29 CLR 257.

158 See Crawshaw, "The High Court of Australia and Advisory Opinions" (1977) 51 Australian Law Journal 112 at 125-126; Aetna Life Insurance Co v Haworth [1937] USSC 43; (1937) 300 US 227; Poe v Ullmann [1961] USSC 144; (1961) 367 US 497.

159 [1921] HCA 20; (1921) 29 CLR 257 at 265.

160 [1953] HCA 51; (1953) 88 CLR 523 at 528.

161 [1991] HCA 53; (1991) 173 CLR 289.

162 [1986] HCA 54; (1986) 161 CLR 141.

163 [1986] HCA 54; (1986) 161 CLR 141 at 145.

164 For a vivid illustration, see eg Ex parte Corbishley; Re Locke (1967) 67 SR(NSW) 396.

165 See Mellifont (1991) 173 CLR 289 at 300; cf Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 476f; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475, 512, 514; Fencott v Muller (1983) 152 CLR 570 at 603, 609.