Reported citations

(1996) 187 CLR 1 · (1996) 141 ALR 129 · (1996) 71 ALJR 173

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
______________________

Matter No B8 of 1996

THE WIK PEOPLES APPELLANTS

AND

THE STATE OF QUEENSLAND & ORS RESPONDENTS

Matter No B9 of 1996

THE THAYORRE PEOPLE APPELLANTS

AND

THE STATE OF QUEENSLAND & ORS RESPONDENTS

ORDER

1. Each appeal allowed in part.

2. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d)
and Question 1C(b), (c) and (d). Affirm the answers
given by Drummond J to
Question 1C(a), Question 4 and Question 5.

3. Answer Questions 1B, 1C, 4 and 5 as follows:

Question 1B

" If at any material time Aboriginal title or possessory title existed in
respect of the land demised under the pastoral lease in
respect of the Holroyd
River Holding a copy of which is attached hereto (pastoral lease):
(a) [not pressed]

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

If the answer to (a) is 'no' and the answer to (b) is 'yes':

(c) does the creation of the pastoral lease that has these two
characteristics confer on the grantee rights wholly inconsistent
with the
concurrent and continuing exercise of any rights or interests which might
comprise such Aboriginal title or possessory
title of the Wik Peoples
and their predecessors in title which existed before the New South Wales
Constitution Act 1855 (Imp)
took effect in the Colony of New South
Wales?

(d) did the grant of the pastoral lease necessarily extinguish all
incidents of Aboriginal title or possessory title of the
Wik Peoples in
respect of the land demised under the pastoral lease?"
Answer

(b) No.

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

Question 1C

" If at any material time Aboriginal title or possessory title existed in
respect of the land demised under the pastoral leases
in respect of the
Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No
2540 copies of which are attached
hereto (Mitchellton Pastoral Leases):

(a) was either of the Mitchellton Pastoral Leases subject to a reservation
in favour of the Thayorre People and their predecessors
in title of any rights
or interests which might comprise such Aboriginal title or possessory title
which existed before the New
South Wales Constitution Act 1855 (Imp) took
effect in the Colony of New South Wales?
(b) did either of the Mitchellton Pastoral Leases confer rights to
exclusive possession on the grantee?

If the answer to (a) is 'no' and the answer to (b) is 'yes':

(d) did the grant of either of the Mitchellton Pastoral
Leases necessarily extinguish all incidents of Aboriginal title or possessory
title of the Thayorre People in respect of the land demised under either of
the Mitchellton Pastoral Leases?"

Answer

(a) No.

(b) No.

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

Question 4

" May any of the claims in paras 48A to 53, 54 to 58(a), 59 to
61, 61A to 64 and 65 to 68 of the further amended statement of claim
[being
claims of alleged breach of fiduciary duty and failure to accord natural
justice] be maintained against the State of Queensland
or Comalco Aluminium
Limited notwithstanding the enactment of the Comalco Act, the making of the
Comalco Agreement, the publication
in the Queensland Government Gazette
of 22 March 1958 pursuant to s 5 of the Comalco Act of the proclamation that
the agreement authorised by the Comalco Act was made
on 16 December 1957 and
the grant of Special Bauxite Mining Lease No 1?"

Answer

No.

Question 5

" May any of the claims in paras 112 to 116, 117 to 121, 122
to 124, 125 to 127, 128 to 132, and 141 to 143 of the further amended
statement of claim [being claims of alleged breach of fiduciary duty and
failure to accord natural justice] be maintained against
the State of
Queensland or Aluminium Pechiney Holdings Pty Ltd notwithstanding the
enactment of the Aurukun Associates Agreement
Act 1975, the making of the
Aurukun Associates Agreement, the publication in the Queensland Government
Gazette of the proclamation of the making of the agreement pursuant to the
Act and the grant of Special Bauxite Mining Lease No 9?"

Answer

No.

4. The respondents who opposed the orders sought in relation to Question
1B(b), (c) and (d) pay the costs of the proceedings in this
Court of the Wik
Peoples relating to that question.

5. The respondents who opposed the orders sought in relation to Question
1C(b), (c) and (d) pay the costs of the proceedings in this
Court of the Thayorre People and the Wik Peoples relating to that question.
The Thayorre People pay the costs of the proceedings
in this Court of the
respondents relating to Question 1C(a).

6. The Wik Peoples pay the respondents' costs of the proceedings in this
Court relating to Questions 4 and 5.

7. Remit the matters to the Federal Court with respect to the costs of the
proceedings before Drummond J or otherwise in that Court.

23 December 1996
On appeal from the Federal Court of Australia.
Representation:

W Sofronoff, QC, with R W Blowes and G C Newton for the appellants in
B8/96 and for the nineteenth respondents in B9/96 (instructed
by Ebsworth &
Ebsworth)

M H Byers, QC, with J W Greenwood, QC, G E Hiley, QC and P M McDermott for the
appellants in B9/96 and for the nineteenth respondents
in B8/96 (instructed by
Bottoms English)

P A Keane, QC, Solicitor-General for the State of Queensland, with G J Gibson,
QC, G J Koppenol and D A Mullins for the first and
third respondents in each
matter (instructed by B T Dunphy, Crown Solicitor for the State of
Queensland)

G Griffith, QC, Solicitor-General for the Commonwealth, with D J McGill, SC and
M A Perry for the second respondent in each matter
(instructed by the
Australian Government Solicitor)

H B Fraser, QC, with P L O'Shea and J K Bond for the fourth respondent in each
matter (instructed by Blake Dawson Waldron)

G A Thompson for the fifth respondent in each matter (instructed by
Feez Ruthning)

No appearance for the sixth respondent

G M G McIntyre for the seventh respondent in each matter (instructed by S M
Coates)

P J Favell for the eighth respondent in each matter (instructed by Farrellys)

D J S Jackson, QC, with J D McKenna for the ninth to twelfth respondents and
the fourteenth to eighteenth respondents in each matter
(instructed by Corrs
Chambers Westgarth)

S L Doyle, SC for the thirteenth respondent in each matter (instructed by
Clayton Utz)
Interveners:

D Graham, QC, Solicitor-General for the State of Victoria, with M
Sloss intervening on behalf of the Attorney-General for the State
of Victoria
(instructed by R C Beazley, Victorian Government Solicitor)

R J Meadows, QC, Solicitor-General for the State of Western Australia, with C
A Wheeler, QC and K M Pettit intervening on behalf
of the Attorney-General for
the State of Western Australia (instructed by P A Panegyres, Crown Solicitor
for Western Australia)

B M Selway, QC, Solicitor-General for the State of South
Australia, with E E David intervening on behalf of the Attorney-General for
the
State of South Australia (instructed by M D Walter, Crown Solicitor for South
Australia)

D M J Bennett, QC, with R J Webb intervening on behalf of the Attorney-General
for the Northern Territory (instructed by the Solicitor
for the Northern
Territory)

J L Sher, QC, with B A Keon-Cohen intervening for the Northern Land Council and
the Central Land Council (instructed by B Midena,
Principal Legal Officer of
the Northern Land Council)

G M G McIntyre intervening on behalf of the Kimberley Land
Council, the Nanga-Ngoona Moora-Joonga Association Aboriginal Corporation,
the
Western Desert Punturkurnuparna Aboriginal Corporation and the Ngaanyatjarra
Land Council (instructed by the DCH Legal Group)

R H Bartlett intervening on behalf of Ben Ward, John Toby, Jimmy
Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger
Carlton,
Kim Aldus, Paddy Carlton, Rita Gerrard, Murphy Simon, Sheba Dignari, Joe
Lissadell, Chocolate Thomas and Peter Newry on
behalf of the Miriuwung and
Gajerrong People (instructed by the Aboriginal Legal Service of Western
Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.

CATCHWORDS

The Wik Peoples v The State of Queensland & Ors
The Thayorre People v The State of Queensland & Ors

Aborigines - Native Title- Grant of pastoral leases pursuant to Land
Act 1910 (Q) and Land Act 1962 (Q) - History of pastoral tenures and
disposal of Crown land considered - Whether leases conferred rights to
exclusive possession
- Application of principles of statutory construction -
Whether legislative intention to confer possession to exclusion of holders
of
native title rights - Rights and obligations of pastoral lessees determined by
reference to the language of the statute authorising
the grant and terms of the
grant - Grant for "pastoral purposes only" - Whether grant of pastoral lease
necessarily extinguished
all incidents of Aboriginal title - Whether clear and
plain intention to extinguish exists - Inconsistency of native title rights
and
rights conferred on pastoral lessees - Whether grant or exercise of the rights
may operate to extinguish - Whether reversion
to the Crown - Whether reversion
inconsistent with continued existence of native title rights - Effect of
non-entry into possession
of lease.

Aborigines - Native title - State legislation authorising making of agreement -
Agreement to have statutory force - Agreement providing
for the grant of mining
leases - Statutory construction - Whether challenge to validity of agreement
contrary to plain intention
of the legislation - Whether relief available for
alleged breaches in execution of agreement - "authorise".

Land Act 1910 (Q).

Land Act 1962 (Q).

Aurukun Associates Agreement Act 1975 (Q).

Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957
(Q).

BRENNAN CJ

INDEX

1. Introduction .. 1-5

2. The content of the pastoral leases .. 5-8

3. The rights of a lessee under the pastoral leases .. 8-23

4. Inconsistency between a lessee's rights and the
continued right to enjoy native title .. 24-29

5. The nature of the Crown's reversion .. 29-35

6. Temporary suspension of native title .. 35-37

7. The claims for equitable relief .. 37-39

8. Claims against Comalco, Pechiney and Queensland .. 40-42

1. Introduction

In proceedings brought in the Federal Court, the Wik Peoples and the Thayorre
People claim to be the holders of native title over
certain areas of land in
Queensland. Those areas include or consist of land known as the Holroyd River
Holding and the Mitchellton
Pastoral Leases. In 1915 and 1919, pastoral leases
had been granted by the Crown to non-Aboriginal lessees over the Mitchellton
Pastoral Leases pursuant to The Land Act 1910 (Q) ("the 1910 Act"). In
1945, under the same Act a pastoral lease had been granted by the Crown to
non-Aboriginal lessees
over the Holroyd River Holding. In 1973, another
pastoral lease had been granted over the same area under The Land Act
1962-1974 (Q) ("the 1962 Act") [1] . The Wik
Peoples claim that their native title was not extinguished by the granting of
pastoral leases but constitutes "a valid
and enforceable interest in the land
co-existing with the interests of the lessees under the Pastoral Leases and
exercisable at all
times during the continuation of the Pastoral Leases". The
Thayorre People, who were joined as respondents to the Wik Peoples' application
filed a cross-claim seeking, inter alia, declarations that:

"On their proper construction and in the events which happened the leases which
the Crown granted over the Mitchellton Holding [in]
1915 and again [in] 1919
allowed the co-existence of use for pastoral purposes only by the lessees with
use for the purposes of aboriginal
title by the Thayorre people;

...

Any reversion held by the Crown in respect of the Mitchellton leases was held
in trust for the Thayorre people and the exercise by
them of their aboriginal
title over the claimed land; [and]

At all times during the terms of the leases which the Crown granted over the
Mitchellton Holding ... the Thayorre people were entitled
to the unimpaired
enjoyment and exercise of their aboriginal title over the claimed lands."

Without deciding whether the claimants are the holders of native title in
respect of the land that had been leased, Drummond J determined
as a
preliminary issue [2] the effect of the grant of
the respective pastoral leases upon any native title then subsisting over the
land the subject of the
grant of the pastoral leases. His Honour's decision on
this issue was expressed in the answers to two questions [3] :

" 1B. If at any material time Aboriginal title or possessory title existed in
respect of the land demised under the pastoral lease
in respect of the Holroyd
River Holding a copy of which is attached hereto (pastoral lease):

(a) is the pastoral lease subject to a reservation in favour of the Wik Peoples
and their predecessors in title of any rights or
interests which might comprise
such Aboriginal title or possessory title which existed before the New South
Wales Constitution Act
1855 (Imp) took effect in the Colony of New South
Wales?

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

If the answer to (a) is 'no' and the answer to (b) is 'yes':
(c) does the creation of the pastoral lease that has these two characteristics
confer on the grantee rights wholly inconsistent with
the concurrent and
continuing exercise of any rights or interests which might comprise such
Aboriginal title or possessory title
of the Wik Peoples and their predecessors
in title which existed before the New South Wales Constitution Act 1855 (Imp)
took effect
in the Colony of New South Wales?

(d) did the grant of the pastoral lease necessarily extinguish all incidents of
Aboriginal title or possessory title of the Wik Peoples
in respect of the land
demised under the pastoral lease?"

Question 1B was answered as follows:

"as to question 1B(a): No;

as to question 1B(b): Yes;

as to question 1B(c): Yes;

as to question 1B(d): Yes."

" 1C. If at any material time Aboriginal title or possessory title existed in
respect of the land demised under the pastoral leases
in respect of the
Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No
2540 copies of which are attached
hereto (Mitchellton Pastoral Leases):

(a) was either of the Mitchellton Pastoral Leases subject to a reservation in
favour of the Thayorre People and their predecessors
in title of any rights or
interests which might comprise such Aboriginal title or possessory title which
existed before the New South
Wales Constitution Act 1855 (Imp) took effect in
the Colony of New South Wales?

(b) did either of the Mitchellton Pastoral Leases confer rights to exclusive
possession on the grantee?

If the answer to (a) is 'no' and the answer to (b) is 'yes':

(c) does the creation of the Mitchellton Pastoral Leases that had these two
characteristics confer on the grantee rights wholly inconsistent
with the
concurrent and continuing exercise of any rights or interests which might
comprise such Aboriginal title or possessory title
of the Thayorre People and
their predecessors in title which existed before the New South Wales
Constitution Act 1855 (Imp) took
effect in the Colony of New South Wales?
(d) did the grant of either of the Mitchellton Pastoral Leases necessarily
extinguish all incidents of Aboriginal title or possessory
title of the
Thayorre People in respect of the land demised under either of the Mitchellton
Pastoral Leases?"

Question 1C was answered as follows:

"as to question 1C(a): No;

as to question 1C(b): Yes - both did;

as to question 1C(c): Yes;

as to question 1C(d): Yes - the grant of the first of these leases
extinguished Aboriginal title."

The Wik Peoples also claim declarations which challenge the validity of
Special Bauxite Mining Leases which had been granted by
the State to certain
mining companies in purported pursuance of The Commonwealth Aluminium
Corporation Pty Limited Agreement Act 1957 (Q) and the Aurukun
Associates Agreement Act 1975 (Q). Two further questions were decided by
Drummond J as preliminary issues relating to these claims. The questions and
his
Honour's answers were as follows:

" Question 4

May any of the claims in paragraphs 48A to 53, 54 to 58(a), 59 to 61, 61A to
64 and 65 to 68 of the Further Amended Statement of
Claim [being claims of
alleged breach of fiduciary duty and failure to accord natural justice] be
maintained against the State of
Queensland or Comalco Aluminium Limited
notwithstanding the enactment of the Comalco Act, the making of the Comalco
Agreement, the
publication in the Queensland Government Gazette of 22 March
1958 pursuant to s 5 of the Comalco Act of the proclamation that the
Agreement
authorised by the Comalco Act was made on 16 December 1957 and the grant of
Special Bauxite Mining Lease No 1?

Question 4 is answered: No.

Question 5

May any of the claims in paragraphs 112 to 116, 117 to 121, 122 to 124, 125 to
127, 128 to 132 and 141 to 143 of the Further Amended
Statement of Claim [being
claims of alleged breach of fiduciary duty and failure to accord natural
justice] be maintained against
the State of Queensland or Aluminium Pechiney
Holdings Pty Ltd notwithstanding the enactment of the Aurukun Associates
Agreement
Act 1975, the making of the Aurukun Associates Agreement, the
publication in the Queensland Government Gazette of the proclamation
of the
making of the Agreement pursuant to the Act and the grant of Special Bauxite
Mining Lease No 9?

Question 5 is answered: No."

The Wik and the Thayorre Peoples appealed to the Full Court of the Federal
Court. The appeal was removed into this Court pursuant
to s 40(1) of the
Judiciary Act 1903 (Cth). It is convenient first to refer to the issues
arising from the grant of the pastoral leases.

2. The content of the pastoral leases

The first Mitchellton lease, issued under the 1910 Act in 1915, was forfeited
for non-payment of rent in 1918. The second lease,
issued under the 1910 Act
in 1919, was surrendered in 1921. Possession was not taken by the lessees
under either lease. Since 12
January 1922 the land has been reserved for the
benefit of Aborigines or held for and on their behalf. The first Holroyd
lease,
issued under the 1910 Act in 1945, was surrendered in 1973. The second
lease, issued under the 1962 Act, is for a term of 30 years
from 1 January
1974. None of the leases contained an express reservation in favour of
Aboriginal people. The power to issue leases
under the 1910 Act was vested in
the Governor in Council [4] by s 6:

" (1) Subject to this Act, the Governor in Council may, in the name of His
Majesty, grant in fee-simple, or demise for a term of
years, any Crown land
within Queensland.

(2) The grant or lease shall be made subject to such reservations and
conditions as are authorised or prescribed by this Act or
any other Act, and
shall be made in the prescribed form, and being so made shall be valid and
effectual to convey to and vest in
the person therein named the land therein
described for the estate or interest therein stated.

(3) The rights of the Crown in gold and other minerals, and the reservations
with respect to the same which are to be contained
in all Crown grants and
leases, are declared and prescribed in ' The Mining on Private Land Act of
1909.'
(4) In addition to any reservation authorised or prescribed by this Act or any
other Act in any grant or lease made after the commencement
of this Act, there
may be reserved for any public purposes, whether specified or not, a part of
the land comprised therein of an
area to be specified, but without specifying
the part of the land so reserved. And it is hereby declared that all such
reservations
in all grants and leases made before the commencement of this Act
are valid to all intents and purposes."

Similar provisions are contained in s 6 of the 1962 Act, except that the
sub-section dealing with the Crown's mineral rights is extended
to cover the
rights in petroleum declared and prescribed in The Petroleum Acts 1923
to 1958 (Q). "Crown land" was defined by s 4 of the 1910 Act as
follows:

"All land in Queensland, except land which is, for the time being -

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

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

(c) Subject to any lease or license lawfully granted by the Crown: Provided
that land held under an occupation license shall be
deemed to be Crown land".

An identical definition of the term appeared in s 5 of the 1962 Act.

The leases issued under the 1910 Act recited that the respective lessees were
"entitled to a Lease of the Land described in the
Schedule endorsed on these
Presents for the term, and at the yearly rent, hereinafter mentioned, and with,
under, and subject to
the conditions, stipulations, reservations, and provisoes
in the said Act, and hereinafter contained".

In consideration of the premises and the rent, the Crown did "DEMISE AND LEASE
unto the said [lessee] (hereinafter with their Successors
in title designated
'the Lessee') and their lawful assigns, ALL THAT portion of Land situated in
[name of district] ... to hold unto
the Lessee and their lawful assigns, for
pastoral purposes only, for and during the term of [number of years] ...
subject to the
conditions and provisoes in Part III, Division I of the said
Act, and to all other rights, powers, privileges, terms, conditions,
provisions, exceptions, restrictions, reservations, and provisoes referred to
... in ... the said Act, and ' The Mining on Private Land Act
of 1909'". In addition to the reservations in The Mining on Private
Land Act , the second Mitchellton lease included reservations under
The Petroleum Act of 1915. Both Holroyd leases included
reservations under The Petroleum Act of 1923 (as amended) and the second
Holroyd lease included reservations under the Mining Act 1968-1974.

The second Holroyd lease is not expressed to be limited "for pastoral purposes
only" but otherwise is in similar terms although
granted under the 1962 Act.
It contains further express conditions requiring the lessees to erect a
manager's residence and effect
other improvements on the land (including
fencing the land) within 5 years. Although question 1B relates to the
operation and effect
of the second Holroyd lease, the land title history of
both of the parcels of land in question in these proceedings must take account
of the operation and effect of the leases issued under the 1910 Act. For
reasons that will appear, it is not necessary to examine
the effect of the 1962
Act and the second Holroyd lease issued under that Act upon native title. It
is sufficient to note that,
in all material respects, the operation and effect
on native title (if any then subsisted) of the pastoral lease issued under the
1962 Act would be the same as the operation and effect on native title of the
pastoral leases issued under the 1910 Act. Hereafter,
the references to
particular sections are to the sections in the 1910 Act.

Each lease contained reservations with respect to the Crown's mineral rights
and a reservation [5] in these terms:

"WE DO FURTHER RESERVE the right of any person duly authorised in that behalf
by the Governor of Our said State in Council at all
times to go upon the said
Land, or any part thereof, for any purpose whatsoever, or to make any survey,
inspection, or examination
of the same."

The leases under the 1910 Act were issued "pursuant to Part III, Division I"
of that Act and were expressed to be subject to "the
conditions and provisoes
of Part III, Division I". That Division provided for the Minister by
notification to declare any Crown
land to be open for pastoral lease and to
specify "the areas to be leased, the term of the lease ... and the rent per
square mile
during the term" [6] . Applications
for a pastoral lease were lodged with a land agent and, when issued to a
successful applicant, commenced "on the quarter
day next ensuing after the date
of acceptance of his application" [7] . The term
of a lease was divided into 10-year periods, the rent for periods after the
first being fixed by the Land Court [8] . Every
lease was subject to the condition that the "lessee shall, during the term, pay
an annual rent at the rate for the time being
prescribed" [9] .
The submissions on behalf of the Wik Peoples (the Wik submission) and the
Thayorre People (the Thayorre submission) are directed
to establishing two
basic points: that the pastoral lessees did not acquire a right to exclusive
possession of the land the subject
of the leases and, even if they did, it is
not the right to exclusive possession that extinguished native title but only
the exercise
of that right to exclude the holders of native title. These basic
points were supplemented by two subsidiary arguments, namely,
that native title
was not extinguished but merely suspended during the term of a lease and that
the Crown held any reversion as a
fiduciary for the holders of native title.
In addition submissions were made specific to the claims made against the
mining companies.

The submissions made by the Wik and Thayorre Peoples were supported by some
respondents and opposed by others. Leave to intervene
was granted without
objection to the States of Victoria, Western Australia and South Australia, the
Northern Territory and (this
being an exceptional case) to certain Aboriginal
Land Councils and representatives of certain other Aboriginal Peoples. The
principal
issues in the case were raised by the Wik and Thayorre Peoples on the
one hand and by the State of Queensland on the other. These
issues were
addressed by other parties and interveners but it will be convenient to refer
chiefly to those parties' submissions as
the source of the submissions in the
following discussion.

3. The rights of a lessee under the pastoral leases

The Wik and Thayorre submissions first point to the magnitude of the area of
the land the subject of the leases and its capacity
to permit concurrent use by
Aboriginal inhabitants and pastoral lessees as indications that the lessees
were not intended to acquire
a right to possession exclusive of the Aboriginal
inhabitants. The Holroyd River Holding was 1,119 square miles in area; the
Mitchellton
Lease was 535 square miles in area. If the granting of the leases
were intended to exclude the Aboriginal inhabitants who had been
the
traditional inhabitants of these areas, it is submitted that the granting of
the leases would have been "truly barbarian", for
the Aboriginal inhabitants
would thereby have become trespassers on their traditional land.

The quoted phrase is taken from my judgment in Mabo v Queensland [No
2] [10] (hereafter Mabo [No 2] )
where it was used in reference to a possible construction of a statutory
provision [11] which made it an offence for a
person to be found in occupation of Crown land, not being a lessee or licensee.
To construe such a
provision as applying to Aboriginal inhabitants would have
left them practically without anywhere in the country to live and, on
that
account, would have been "truly barbarian". The term "person" in the statute
was read down so as not to include traditional
Aboriginal occupiers. The
question that arises as to the operation of a pastoral lease is different.
That question is whether the
pastoral lessee acquires a right to exclusive
possession of the area of land the subject of the lease. If the pastoral
lessee acquires
a right to exclusive possession, it does not follow that the
Aboriginal inhabitants are necessarily turned into trespassers. It
would not
be an offence to be found in occupation of land subject to a pastoral lease. A
pastoral lessee, who took no steps during
the term of the lease to exclude
known Aboriginal inhabitants from the leased land, must be taken to have
consented to their presence
on the land. But if, in exercise of a right to
exclusive possession, the Aboriginal inhabitants were excluded by the lessee,
the
exclusion would be an example of events referred to in Mabo [No 2] [12] : "Aborigines were dispossessed of their land
parcel by parcel, to make way for expanding colonial settlement" [13] . That was the consequence of the exercise of the Crown's
power to confer on the colonial settlers an authority or purported authority
to
exclude Aboriginal inhabitants from the parcels of land granted to the settlers
by the Crown. But the adversely discriminatory
treatment suffered by the
holders of native title is not now in issue; what is in issue is the legal
effect of the Crown's grant
of pastoral leases over land that was or might have
been the subject of native title.

The construction of the 1910 Act or the effect of a lease issued under Pt III
Div I of that Act is not to be ascertained by reference
to whether a pastoral
lessee in fact excluded Aboriginal inhabitants from the land. It must be
ascertained by reference to the language
used in the Act and reflected in the
instrument of lease. If, on its true construction, a pastoral lease under the
Act conferred
on the lessee a right to exclusive possession, that right is not
to be qualified by the presence on the leased land of the traditional
Aboriginal inhabitants at the time when the lease was granted or by their
continued presence thereon after the lease was granted.

A number of arguments were put that the 1910 Act and the leases granted
thereunder did not confer exclusive possession on the Crown
lessees. First,
the Wik submission contends that the statutory procedure for removing persons
in unlawful occupation of a pastoral
lease showed that the person in or
entitled to possession of the leased land was not the lessee but the Crown.
And, if that be so,
the lease must be construed as no more than a licence.
Section 204 of the 1910 Act read as follows:

" Any Commissioner or officer authorised in that behalf by the Minister who has
reason to believe that any person is in unlawful
occupation of any Crown land
or any reserve, or is in possession of any Crown land under colour of any lease
or license that has
become forfeited, may make complaint before justices, who
shall hear and determine the matter in a summary way, and, on being satisfied
of the truth of the complaint, shall issue their warrant, addressed to the
Commissioner or to such authorised officer or to any police
constable,
requiring him forthwith to remove such person from such land, and to take
possession of the same on behalf of the Crown;
and the person to whom the
warrant is addressed shall forthwith carry the same into execution.

A lessee or his manager or a licensee of any land from the Crown may in like
manner make a complaint against any person in unlawful
occupation of any part
of the land comprised in the lease or license, and the like proceedings shall
thereupon be had."

The successor to s 204 of the 1910 Act, namely, s 373 of the 1962 Act, extended
the range of applicants for a warrant to licensees
and persons "purchasing any
land from the Crown". A person in either of these categories may not have a
right to exclusive possession.

These sections are drafted without much recognition of the different interests
of the Crown, Crown lessees and licensees and purchasers,
but the purpose of
these provisions is clear enough. It is not to eject a person in possession,
for the person to be removed might
not have been in possession but merely in
"unlawful occupation". The purpose is to procure the removal of a person who
has no right
to remain on the land. The taking of possession under the warrant
was the step which restored to the applicant party the full enjoyment
of the
party's interest that had been impaired by the presence of the person removed.
Absent this statutory procedure, a pastoral
lessee could secure the ejectment
of a person having no right to be or to remain on the land only by bringing
civil proceedings in
the Supreme Court [14] .
The Wik submission says that "the like proceedings" to be had on an application
by a person in one of the categories mentioned in
the last paragraph of s 204
would lead to the issue of a warrant "to take possession ... on behalf of the
Crown". Therefore, so
the argument runs, the Crown must be the party in
possession. That would be a bizarre construction.

The section assumes that a person may be in possession under colour of a
forfeited lease or licence. If a forfeited lease or licence
can create a
colour of possession, an existing pastoral lease must be taken - for the
purpose of the section at least - to confer
a right to possession. And, if a
lessee who applies for a warrant is in possession, it could not have been
intended that the issue
of a warrant should result in the lessee's
dispossession. The "like proceedings" must mean that the warrant of removal
issues in
favour of the applicant for the warrant who has demonstrated his
title to relief in the same way as it issues in favour of the Crown
when an
application is made by or on behalf of the Crown. A provision corresponding
with the last paragraph of s 204 was introduced
in a statutory predecessor of s
204 in 1869 [15] , perhaps to avoid the
necessity for litigation between adjoining landholders in the Supreme Court as
had occurred in McGavin v McMaster in the year before. There is no
substance in the submission based on s 204.

Next, both the Wik and the Thayorre submissions placed some reliance on the
reservation in the lease of the Crown's right to nominate
any person to enter
upon the land for any purpose and at any time to show that the pastoral lessee
did not acquire a right to exclusive
possession. That reservation, together
with certain statutory provisions [16]
authorising access to land the subject of a pastoral lease and the restriction
placed by the leases (other than the second Holroyd
lease) on the use of the
land "for pastoral purposes only", are said to negative a legislative intention
to confer a right to exclusive
possession on the pastoral lessees. The
reservation, far from implying that the lease did not confer a right to
exclusive possession,
implies that, without the reservation, the lessee would
have been entitled to refuse entry to any person [17] . The reservation was not a reservation from the grant of
a third party interest in the land but a reservation to the Governor in
Council
of a power to authorise a third party to enter. Similarly, the statutory
provisions conferred authority to enter on leased
land when such entry would
otherwise have been in breach of the rights of the lessee. And the restriction
on use of the land was
consistent with a lessee's right to exclusive
possession.

In Goldsworthy Mining Ltd v Federal Commissioner of Taxation [18] , a dredging lease issued under the Land
Act 1933-1965 (WA) over a portion of the seabed contained several
reservations which restricted the use to which the demised premises
could be
put by the lessees, permitted the Crown and others to use any part of the
demised premises for navigation, and imposed on
the lessees obligations of an
important kind (including consenting to the grant of easements or rights over
the demised premises).
Mason J held that those provisions were consistent with
the lessees' right to exclusive possession. "Indeed", his Honour said [19] , "the provisions assume the existence of
that right". And, in Glenwood Lumber Company v Phillips [20] , the Privy Council said:

"If the effect of the instrument is to give the holder an exclusive right of
occupation of the land, though subject to certain reservations
or to a
restriction of the purposes for which it may be used, it is in law a demise of
the land itself."

If, as a matter of construction, it is right to hold that the right to
exclusive possession was conferred on a pastoral lessee,
the statutory
provisions that authorised entry onto leased land for a variety of purposes
were qualifications of that right but they
did not destroy it. They merely
limited the enjoyment of that right to the extent that the particular statute
prescribed. For example,
s 205 which authorised the depasturing of stock other
than sheep along stock routes traversing pastoral leases was simply what it
purported to be: a statutory exception to the right which, as an incident of
the right to exclusive possession, the lessee would
otherwise have had to
exclude the stock and the persons driving the stock [21] .

However, there are certain statutory provisions which authorised the
suspension or termination of a lessee's right to exclusive
possession. The
clearest example was the statutory power to resume for particular purposes a
portion of land subject to a pastoral
lease. That power, contained in Pt VI
Div VI of the 1910 Act, did not deny that the land resumed was in the exclusive
possession
of the lessee prior to the resumption. Another example is found in
The Petroleum Act of 1923 (Q). Assuming the power to grant a petroleum
lease under that Act extended to the grant of a petroleum lease over "private
land" (which included pastoral leaseholds [22] ), it may be that the petroleum lease conferred a right to
exclusive possession on the petroleum lessee that suspended the right to
exclusive possession otherwise exercisable by a pastoral lessee [23] . But that is not to say that the pastoral lessee's
interest in land the subject of a pastoral lease was altered by the mere
existence
of a power to grant a petroleum (or other mining) lease over the same
land. The problems of mining leases over land already leased
by the Crown
arise precisely because the Crown has already disposed of the leasehold estate
in the land.

It remains a question of construction whether a pastoral lease issued pursuant
to Pt III Div I of the 1910 Act confers on the lessee
a right to exclusive
possession. That question is to be determined by reference to the terms of the
lease and of the Act under which
it was issued. It is not a necessary
consequence of the description of the instruments issued pursuant to Pt III Div
I of the 1910
Act as leases that they conferred a right of exclusive possession
on the lessee. The question whether the lessees acquired a right
to exclusive
possession does not depend on what the parties called the instrument except in
so far as their description of the instrument
indicates the rights which it
confers. As the Privy Council observed in Glenwood Lumber Company v
Phillips [24] , it is not a question of
words but of substance. Thus, their Lordships held in O'Keefe v
Malone [25] that an exclusive and
transferable licence to occupy land for a defined period is in truth a lease.
Conversely, a true lease confers
on the lessee a right to exclusive possession,
albeit that right might be subject to particular reservations or exceptions [26] . In Radaich v Smith [27] Windeyer J said:

"Whether the transaction creates a lease or a licence depends upon intention,
only in the sense that it depends upon the nature of
the right which the
parties intend the person entering upon the land shall have in relation to the
land. When they have put their
transaction in writing this intention is to be
ascertained by seeing what, in accordance with ordinary principles of
interpretation , are the rights that the instrument creates. If those
rights be the rights of a tenant, it does not avail either party to say that
a
tenancy was not intended. And conversely if a man be given only the rights of
a licensee, it does not matter that he be called
a tenant; he is a licensee.
What then is the fundamental right which a tenant has that distinguishes his
position from that of a
licensee? It is an interest in land as distinct
from a personal permission to enter the land and use it for some stipulated
purpose or purposes. And how is it to be
ascertained whether such an interest
in land has been given? By seeing whether the grantee was given a legal
right of exclusive possession of the land for a term or from year to year
or for a life or lives. If he was, he is a tenant. And he cannot be other
than a tenant,
because a legal right of exclusive possession is a tenancy and
the creation of such a right is a demise. To say that a man who has,
by
agreement with a landlord, a right of exclusive possession of land for a term
is not a tenant is simply to contradict the first
proposition by the second."
(Some emphasis added.)

Although it is the substance of the rights conferred and not the description
of the instrument conferring them which is the ultimate
touchstone for
determining whether a lease has been granted, the ordinary rules of
interpretation require that, in the absence of
any contrary indication, the use
in a statute of a term that has acquired a technical legal meaning is taken
prima facie to bear
that meaning [28] . Under
the 1910 Act, the power to grant a pastoral lease was a power to "demise for a
term of years" [29] ; a "lease" was declared to
be effectual to vest "the estate or interest therein stated" [30] ; a pastoral lease was granted for a term [31] commencing on a quarter day [32] in respect of a specified area of land [33] ; there was an obligation to pay the rent [34] ; provision was made for a "surrender" of a lease [35] and for forfeiture [36] and, on forfeiture, the land reverted to His Majesty and
could have been dealt with again under the Act [37] . This is the language of lease.

In American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd [38] I observed in reference to the similar
provisions of the 1962 Act:

"By adopting the terminology of leasehold interests, the Parliament must be
taken to have intended that the interests of a lessee,
transferee, mortgagee or
sublessee are those of a lessee, transferee, mortgagee or sublessee at common
law, modified by the relevant
provisions of the Act. The incidents of those
interests are the incidents of corresponding interests at common law modified
by the
relevant provisions of the Act."

This is the long-established and hitherto accepted approach to the operation of
Crown Lands legislation in Australia. In Attorney-General of Victoria v
Ettershank [39] , the opinion of the Privy
Council defined the effect of a "lease" issued under the Land Acts in force in
Victoria:

"What the Act of 1862 authorizes and prescribes in the case of a selector, is
that he shall receive 'a lease,' and by sect 22 such
lease is to contain 'the
usual covenant for payment of rent, and a condition for re-entry on non-payment
thereof.' When, therefore,
the statute authorizes a lease with these usual and
well understood-provisions, it is reasonable to suppose that the Legislature
intended that it should operate as a contract of the like nature made between
private persons."

The statutes of the Australian colonies regulating the alienation of interests
in unalienated land have been construed as controlling
the Crown's capacity to
contract for the alienation of interests and the Crown's capacity to grant
interests in such land. The principle
applicable in New South Wales as in
other Australian colonies was that the Crown was "only authorized to dispose of
Crown lands in
accordance with the provisions of the Crown Lands Acts" [40] . In Cudgen Rutile (No 2) Ltd v
Chalk [41] Lord Wilberforce said:

" As a starting point, their Lordships accept as fully established the
proposition that, in Queensland, as in other states of the
Commonwealth of
Australia, the Crown cannot contract for the disposal of any interest in Crown
lands unless under and in accordance
with power to that effect conferred by
statute. In Queensland the legal basis for this power, and for the limitations
upon it, is
to be found in the Constitution Act of 1867, of which section 30
provides for the making of laws regulating the sale, letting, disposal
and
occupation of the waste
lands of the Crown, and section 40 vests the management
and control of the waste lands of the Crown in
the legislature."

Illustrative of this view is the judgment of Isaacs J in O'Keefe v
Williams [42] , where his Honour repeated a
view he had earlier [43] expressed:
"'It may fairly be said that the whole frame of the Crown Lands Act
shows that the legislature has merely enacted the method and conditions upon
which the Crown may contract for the disposal of its
interest in the public
lands.' And that involves the position that the Crown may contract to give a
lease, and may contract by a
lease. It cannot contract either for or by a
lease in any terms contrary to the Statute; and where the Statute declares what
rights
the lease when granted shall confer, in other words declares its legal
effect, the Crown when granting such a lease grants those
rights."

The use of well understood conveyancing terms in statutes authorising the
disposition of interests in unalienable land was taken
to import the interests
and rights ordinarily attributed to those terms [44] . The substantive rights conferred on a Crown lessee are
equated with the rights of a lessee under a lease at common law granted
within
the confines of the empowering statute. The substantive rights of a Crown
lessee thus include the right of exclusive possession.
In Goldsworthy
Mining Ltd v Federal Commissioner of Taxation [45] , Mason J held "the language of lease" to indicate an
agreement by the Crown to give the lessee the right of exclusive possession.

However, there is a passage in a judgment of Isaacs J in Davies v
Littlejohn [46] in which his Honour speaks
of conditional purchases under the Crown Lands Consolidation Act 1913
(NSW) not as contracts but as creatures of statute. He said of the Act:

"It creates them, shapes them, states their characteristics, fixes the mutual
obligation of the Crown and the purchaser, and provides
for the mode in which
they shall cease to exist, either by becoming unconditional purchases or by
termination en route . ... Whatever estates, interests or other rights
are created by the Crown must owe their origin and existence to the provisions
of the statute. In other words, they are statutory or legal estates, interests
and rights. They are not and cannot be equitable,
that is, owing their
existence to some doctrine or principle of equity."

His Honour's approach was followed by the Full Court of the Supreme Court of
Victoria in In re Brady [47] in defining
the right to a grant in fee simple possessed by a Crown lessee who had complied
with the conditions of the lease and
was entitled to the grant on payment of a
specified amount. Both of these cases were concerned to distinguish between a
statutory
right to acquire the fee and an ordinary contract of sale under which
the respective rights of vendor and purchaser are affected
by equitable
principles. In Davies v Littlejohn , Isaacs J was concerned to
demonstrate that the Crown had no vendor's lien on the unpaid price of land
held on conditional purchase.
As the purchaser under a conditional purchase
(unlike a purchaser under an ordinary contract for the sale of land) acquired
no interest
in the land until the statutory conditions were fulfilled, the
Crown (unlike a vendor under an ordinary contract for the sale of
land) parted
with no interest. Accordingly, there was no occasion for equity to protect the
Crown by a vendor's lien for the unpaid
balance of the purchase price. The
scheme for conditionally purchasing land was statutory and there was "no room
for equity to intervene
and modify the nature of a conditional purchase as
Parliament has shaped it" [48] . Of course the
conditions which entitle a person to the grant of a freehold estate under a
conditional purchase are prescribed by
statute; non constat that a lease
issued by the Crown in exercise of its statutory powers is not truly a lease
conferring, or in accordance with the statute
conveying, a leasehold estate.

The reasoning in Davies v Littlejohn casts no doubt on the orthodox
characterisation as leases at common law of leases issued by the Crown under
Crown Lands legislation.
Attorney-General of Victoria v Ettershank [49] makes the distinction between a lease
contractually binding on the Crown though issued in accordance with the statute
and a purely
statutory right to acquire the fee that is conferred on a
lessee:

"It was said that the right to the grant of the fee was not given by contract
but by statute. It is true that the right is created
by the statute, but it is
conferred upon the holder of a lease, and accrues to him by reason of such
lease, and only upon payment
of the full rent agreed to be paid under it. It
is a statutory right annexed to the lease, and an implied term of the contract,
and therefore may be properly said to be founded on and to arise out of it."

This passage was cited by Isaacs J in O'Keefe v Williams [50] .

The Court of Appeal of New South Wales in Minister for Lands and Forests v
McPherson [51] was right to view Davies
v Littlejohn and O'Keefe v Williams as cases dealing with distinct
subjects. Mahoney JA said [52] :

" I do not think that the principles adopted in Davies v Littlejohn are
inconsistent with those adopted in O'Keefe v Williams . In O'Keefe v
Williams , the court was concerned with the implications to be drawn from or
in the context of a transaction under which a right of occupation
amounting to
a lease had actually been granted. It was held not inconsistent with the
statutory nature or origin of that right that
other rights should be implied.
In Davies v Littlejohn , the court was concerned with the nature of an
agreement to buy Crown lands which had not yet resulted in the creation of a
term
or estate: the issue was whether the agreement which existed provided the
basis for the creation of the equitable lien."

Kirby P, after referring to both cases, said [53] :

"In the case of an interest called a 'lease', long known to the law, the mere
fact that it also exists under a statute will not confine
its incidents
exclusively to those contained in the statute. On the face of things, the
general law, so far as it is not inconsistent
with the statute, will continue
to operate."

I respectfully agree. In Davies v Littlejohn , Isaacs J simply followed
the principle established by Attorney-General of Victoria v Ettershank .
Indeed, he did not think it necessary to refer to Attorney-General of
Victoria v Ettershank or to either of the O'Keefe v Williams appeals
in which he had cited that case [54] . Whatever
may be said of conditional purchases, a Crown lease issued under s 6(1) of the
1910 Act was effective to convey and vest
"the land therein described for the
estate or interest therein stated" [55] . The
lessee acquired more than a bundle of statutory rights: the lessee acquired a
leasehold estate.

Although the 1910 Act did not expressly confer on a Crown lessee the right to
exclusive possession - a circumstance on which the
Thayorre submission places
particular emphasis - that right is the leading characteristic of a leasehold
estate, distinguishing the
lease from a licence, as Lord Templeman pointed out
in Street v Mountford [56] . If the 1910
Act intended the lease to confer no more than the rights expressed by the Act,
there would have been little point in
distinguishing between leases and
licences which share many statutory features. Yet the distinction is clearly
made. I see no basis,
consistently with authority, for denying to lessees
holding under Crown leases issued under the 1910 Act (or under the 1962 Act)
the right of exclusive possession characteristic of a leasehold estate.

Notwithstanding the language of lease that is found in both Pt III Div I of
the 1910 Act and the instruments of lease of the subject
lands, the Thayorre
submission characterises a pastoral lease as a mere profit &agrave; prendre -
an interest in the land which authorises
the pastoralist to enter on the land
of another (presumably on the land of the holders of native title) for the sole
purpose of grazing
stock. That view of a pastoral lease was rejected by the
Colonial Land and Emigration Office in April 1849 [57] and, in 1870, the Full Court of the Supreme Court of
Queensland held [58] that a pastoral lessee had
an "exclusive right to the land". After the enactment of the 1910 Act, the
Full Court held that the Crown
and its lessees were in the same position,
subject to statute, as a landlord and tenant at common law [59] . A pastoral lease under Regulations pursuant to the
Australian Waste Lands Act (Imp) [60] by
which the Crown purported to "demise and lease" to a lessee a parcel of land in
Western Australia was said by Griffith CJ in Moore and Scroope v The State
of Western Australia [61] to create "an
estate in the land which could not be diminished by the Crown by means of any
disposition of the land inconsistent
with the continuance of the estate so
created" subject, however, to a reservation which - in that case - empowered
the Crown to sell
the land demised. It has never hitherto been doubted that a
Crown lease conferred an estate on a lessee taking possession under
the lease [62] . Although the Thayorre submission that the
depasturing of stock can be made the subject of a profit &agrave; prendre is
correct,
it does not follow that the right to depasture stock conferred by a
pastoral lease is a mere profit &agrave; prendre.

In Falklands Islands Co v The Queen [63] the Privy Council considered an instrument described as a
licence "to depasture stock on 10,000 acres [of the Falkland Islands],
the
limits of which were strictly defined in the instrument, for a term of twenty
years, in consideration of an annual rent of [sterling]10".
The instrument
contained a reservation "securing to the Crown the right of re-entering on the
lands for the purpose of making roads,
canals, and other works of public
utility, the right to cut timber, and to search for and carry away stones or
other materials which
might be required for making or keeping such works in
repair, and also reserving to the Crown all mines of gold, silver, precious
metals, and coal, with full liberty to search for and carry away the same" [64] . Their Lordships classified the instrument
as a lease, expressing the opinion that [65]
-

"though this is entitled a licence to depasture stock, it is in law a demise of
the land therein contained, to which the ordinary
rights of a lessee attach,
and consequently, that the land thereby demised, subject to the rights of the
Crown and the performance
of the conditions contained in the licence, belong to
the Falkland Islands Company as their exclusive property during the period
of
the lease."

If the pastoral leases in the present case conferred no more than a profit
&agrave; prendre, it would be necessary to attribute
ownership of the land to
the Crown from whom the postulated profit &agrave; prendre was derived. But if
the "licence" in the Falkland
Islands case conferred "exclusive property"
rights on the lessee, a fortiori, the pastoral leases in the present case must
be classified
as true leases conferring a right to exclusive possession on the
pastoral lessee.

In order to rebut this conclusion, the Thayorre submission (and perhaps the
Wik submission [66] ) contends for a presumption
against the Crown's intending to derogate from native title and for a
construction of s 6 of the 1910
Act and of the pastoral leases granted
thereunder that would leave native title subsisting. The submission points to
the difference
in the position of the holders of native title who are said to
be vulnerable and the position of the Governor in Council who is said
to have
the dominant power to alienate interests in land subject to native title. That
difference is said to give rise to a fiduciary
duty owed by the Crown to the
holders of native title which, if I understand the submission correctly,
creates a presumption that
the legislature did not intend to extinguish native
title and that, by reason of that presumption, the grant of a pastoral lease
did not extinguish native title.

To compare the relative positions of the Crown and the holders of native title
is not to show the existence of any relevant fiduciary
duty. Even if there
were some fiduciary relationship, it could not affect the interpretation to be
placed on s 6 of the 1910 Act [67] . Indeed,
the proposition that the Crown is under a fiduciary duty to the holders of
native title to advance, protect or safeguard
their interests while alienating
their land is self-contradictory. The sovereign power of alienation was
antipathetic to the safeguarding
of the holders of native title. In conferring
the power of alienation, Parliament imposed no guidelines to be observed in its
exercise.
The power was to be exercised as the Governor in Council saw fit.
At the time when the 1910 Act conferred the power of alienation
on the Governor
in Council, native title was not recognised by the courts. The power was not
conditioned on the safeguarding or
even the considering of the interests of
those who would now be recognised as the holders of native title.

In the case of the Holroyd River Holding, the pastoral lessee went into actual
possession of the land but in the case of the Mitchellton
Leases, no lessee
ever went into actual possession. At common law, a lessee who had not entered
into possession had an interest
known as interesse termini which carried
a right to enter [68] and to maintain an action
for ejectment [69] but not an action for
trespass [70] . And, as the lessee acquired no
estate in the land prior to taking possession, no reversion expectant on the
termination of the
leasehold interest arose until possession was taken [71] . The landlord's estate remained unaffected
until possession was taken by the tenant.

However, s 6(2) of the 1910 Act provided, inter alia, that "[t]he grant or
lease ... shall be made in the prescribed form, and being
so made shall be
valid and effectual to convey to and vest in the person therein named the land
therein described for the estate
or interest therein stated". Whatever be the
position in other States, in Queensland s 6(2) vested in the named lessee the
estate
or interest conferred by the instrument of lease when the instrument was
"so made", that is, "made in the prescribed form" [72] . True it is that the sub-section was concerned with the
form of the instrument, but that is not surprising when the issue of the
lease
is merely the Crown's response to the lessee's application for a lease of an
area which the Minister has declared open for
pastoral lease [73] . It follows that on the grant of a pastoral lease under
the 1910 Act, the pastoral lessee was, in point of law, in possession of
the
land demised, irrespective of the lessee actually going into possession of the
land. It follows that, in point of law, the lessees
of the Mitchellton Leases
were in the same position as a lessee at common law who entered into possession
forthwith on the granting
of the lease. In my opinion, the lessees under each
pastoral lease had possession and a right to exclusive possession at the latest
from the moment when the lease was issued. And, for reasons presently to be
stated, the Crown had the reversion expectant on the
termination of the
lease.
4. Inconsistency between a lessee's rights and the continued right
to enjoy native title

The Wik and Thayorre submissions then raise their second basic point, namely,
whether extinguishment of native title is effected
by mere inconsistency
between the continued right of indigenous inhabitants at common law to the
enjoyment of native title and the
pastoral lessee's right to exclusive
possession created or conferred pursuant to the 1910 Act or whether it is a
practical inconsistency
between the exercise of those respective bundles of
rights that can alone extinguish native title. These submissions contended for
the latter view for the reason, it was submitted, that extinguishment required
proof of a clear and plain intention to extinguish
native title.

As I held in Mabo [No 2] , native title "has its origin in and is given
its content by the traditional laws acknowledged by and the traditional customs
observed
by the indigenous inhabitants of a territory" [74] . Those rights, although ascertained by reference to
traditional laws and customs are enforceable as common law rights. That is
what is meant when it is said that native title is recognised by the common
law [75] . Unless traditional law or custom so
requires, native title does not require any conduct on the part of any person
to complete it,
nor does it depend for its existence on any legislative,
executive or judicial declaration. The strength of native title is that
it is
enforceable by the ordinary courts. Its weakness is that it is not an estate
held from the Crown nor is it protected by the
common law as Crown tenures are
protected against impairment by subsequent Crown grant. Native title is liable
to be extinguished
by laws enacted by, or with the authority of, the
legislature or by the act of the executive in exercise of powers conferred upon
it [76] . Such laws or acts may be of three
kinds: (i) laws or acts which simply extinguish native title; (ii) laws or
acts which create
rights in third parties in respect of a parcel of land
subject to native title which are inconsistent with the continued right to
enjoy native title; and (iii) laws or acts by which the Crown acquires full
beneficial ownership of land previously subject to native
title.

A law or executive act which, though it creates no rights inconsistent with
native title, is said to have the purpose of extinguishing
native title, does
not have that effect "unless there be a clear and plain intention to do so" [77] . Such an intention is not to be collected
by enquiry into the state of mind of the legislators or of the executive
officer but from
the words of the relevant law or from the nature of the
executive act and of the power supporting it. The test of intention to
extinguish
is an objective test.

A law or executive act which creates rights in third parties inconsistent with
a continued right to enjoy native title extinguishes
native title to the extent
of the inconsistency, irrespective of the intention of the legislature or the
executive and whether or
not the legislature or the executive officer adverted
to the existence of native title [78] . In
reference to grants of interests in land by the Governor in Council, I said in
Mabo [No 2] [79] :

Third party rights inconsistent with native title can be created by or with the
authority of the legislature in exercise of legislative
power but, as the power
of State and Territory legislatures is now confined by the Racial
Discrimination Act 1975 (Cth), a State or Territory law made or executive
act done since that Act came into force cannot effect an extinguishment of
native
title if the law or executive act would not effect the extinguishment of
a title acquired otherwise than as native title [80] .

The third category are laws and acts by which the Crown acquires a full
beneficial ownership that extinguishes native title. That
may occur by
acquisition of native title by or under a statute, in which case the question
is simply whether the power of acquisition
has been validly exercised. Or the
Crown, without statutory authority, may have acquired beneficial ownership
simply by appropriating
land in which no interest has been alienated by the
Crown. (Such an acquisition by the Crown in right of a State or Territory
would
have occurred, if at all, before the Racial Discrimination Act
came into force.) In the latter case, the appropriation of the land gives rise
to the Crown's beneficial ownership only when the
land is actually used for
some purpose inconsistent with the continued enjoyment of native title - for
example, by building a school
or laying a pipeline. Until such a use takes
place, nothing has occurred that might affect the legal status quo. A mere
reservation
of the land for the intended purpose, which does not create third
party rights over the land, does not alter the legal interests
in the land [81] , but the Crown's exercise of its sovereign
power to use unalienated land for its own purposes extinguishes, partially or
wholly,
native title interests in or over the land used [82] .

In considering whether native title has been extinguished in or over a
particular parcel of land, it is necessary to identify the
particular law or
act which is said to effect the extinguishment and to apply the appropriate
test to ascertain the effect of that
law or act and whether that effect is
inconsistent with the continued right to enjoy native title. In the present
case, it would
be erroneous, after identifying the relevant act as the grant of
a pastoral lease under the 1910 Act to inquire whether the grant
of the lease
exhibited a clear and plain intention to extinguish native title. The question
is not whether the Governor in Council
intended or exhibited an intention to
extinguish native title but whether the right to exclusive possession conferred
by the leases
on the pastoral lessees was inconsistent with the continued right
of the holders of native title to enjoy that title.

On the issue of a pastoral lease under the 1910 Act, the lessee acquired an
estate. There is no legal principle which would defer
the vesting of, or
qualify, that estate in order to allow the continuance of a right to enjoy
native title. Given that the pastoral
lessee acquired a right to exclusive
possession at latest when the lease was issued, there was an inconsistency
between that right
and the right of any other person to enter or to remain on
the land demised without the lessee's consent. Assuming that access to
the
land is an essential aspect of the native title asserted, inconsistency arises
precisely because the rights of the lessee and
the rights of the holders of
native title cannot be fully exercised at the same time. As Mahoney J observed
in Hamlet of Baker Lake v Minister of Indian Affairs [83] with reference to Indian land rights in Canada:

" The coexistence of an aboriginal title with the estate of the ordinary
private land holder is readily recognized as an absurdity.
The communal right
of aborigines to occupy it cannot be reconciled with the right of a private
owner to peaceful enjoyment of his
land. However, its coexistence with the
radical title of the Crown to land is characteristic of aboriginal title".

If a holder of native title had only a non-accessory right, there may be no
inconsistency between that right and the rights of a
pastoral lessee.

The law can attribute priority to one right over another, but it cannot
recognise the co-existence in different hands of two rights
that cannot both be
exercised at the same time [84] . To postulate
a test of inconsistency not between the rights but between the manner of their
exercise would be to deny the law's
capacity to determine the priority of
rights over or in respect of the same parcel of land. The law would be
incapable of settling
a dispute between the holders of the inconsistent rights
prior to their exercise, to the prejudice of that peaceful resolution of
disputes which reduces any tendency to self-help. To postulate extinguishment
of native title as dependent on the exercise of the
private right of the lessee
(rather than on the creation or existence of the private right) would produce
situations of uncertainty,
perhaps of conflict. The question of extinguishment
of native title by a grant of inconsistent rights is - and must be - resolved
as a matter of law, not of fact. If the rights conferred on the lessee of a
pastoral lease are, at the moment when those rights
are conferred, inconsistent
with a continued right to enjoy native title, native title is extinguished [85] .

The submission that inconsistency in the practical enjoyment of the respective
rights of the native title holders and of the pastoral
lessees, not
inconsistency between the rights themselves, determines whether native title
has been extinguished is founded on the
notion that the 1910 Act and pastoral
leases should be given a restrictive operation so as to permit, as far as
possible, the continued
existence of native title. If that notion is not
applied, there is "a significant moral shortcoming in the principles by which
native
title is recognised," to adopt a dictum of French J [86] .

So much can be admitted. The position of the traditional Aboriginal
inhabitants of the land demised by the Mitchellton leases is
a good
illustration. If it be right to hold that the mere grant of those leases
extinguished the native title of the traditional
Aboriginal inhabitants, the
law will be held to destroy the legal entitlement of the inhabitants to possess
and enjoy the land on
which they are living and on which their forebears have
lived since time immemorial. That would be a significant moral shortcoming.
But the shortcoming cannot be remedied by denying the true legal effect of the
1910 Act and pastoral leases issued thereunder, ascertained
by application of
the general law. The questions for decision by this Court are whether, on the
issue of the Mitchellton and Holroyd
River leases under s 6 of the 1910 Act,
there was an inconsistency between the rights of the lessees and the continued
right of the
Wik and Thayorre Peoples to enjoy their native title and, if there
were an inconsistency, which set of rights prevailed. For the
reasons stated,
the lessees had the right of exclusive possession and that right was
inconsistent with native title (except for non-accessory
rights, if any) and,
as the right of exclusive possession was conferred on the lessees by the Crown
as the sovereign power, that
right prevailed and the rights of the holders of
native title were extinguished.

That does not mean that the holders of native title became trespassers. Their
continued presence on the land would have been expected
and probably known by
the lessees. Unless the lessees took some action to eject them, their presence
on the land would have been
impliedly consented to. It appears that the
holders of native title were never trespassers on the Mitchellton leases and,
if their
occupation of the Holroyd River Holding was not objected to, they were
never trespassers on that land. Nevertheless, consistently
with s 6(2), the
inhabitants of the land demised became liable to exclusion by the lessee once
the lease issued. From this it follows
that native title could not co-exist
with the leasehold estate.

The holders of native title did not acquire a possessory title. A possessory
title arises from possession that is adverse to the
title of the true owner.
Until the Crown lessees acquired their respective titles, the holders of native
title held the land by virtue
of that title. After the Crown lessees acquired
their titles, the continued occupation by the erstwhile holders of native title
is explicable by lessors' consent rather than by possession adverse to the
lessors' possession.

The next question is: was native title extinguished on and by the issuing of
the leases or was native title merely suspended during
the terms of the
respective leases? The answer to this question depends on the nature of the
Crown's reversion.

5. The nature of the Crown's reversion

In Mabo [No 2] I expressed the view [87] :

"If a lease be granted, the lessee acquires possession and the Crown acquires
the reversion expectant on the expiry of the term.
The Crown's title is thus
expanded from the mere radical title and, on the expiry of the term, becomes a
plenum dominium."

If this be the correct view, there is no occasion for the revival of native
title. The Crown's title to the land on reversion would
be inconsistent with a
continued right to enjoy native title. The Wik and Thayorre submissions
together raise two grounds of challenge
to the view I expressed in Mabo [No
2] : first, that a pastoral lease is issued in exercise of a statutory
power, not in exercise of the Crown's proprietary rights in the
land and that
the interest of the Crown on reversion is no more than the radical title or,
alternatively, no more than the minimum
proprietary interest required to
support the leasehold interest possessed by the lessee; and second, the rights
and interest of the
native title holders are suspended only to the extent
necessary to admit the interest of the pastoral lessee and, on expiry of the
term [88] or earlier determination of the
lease, revive [89] .

The Wik and Thayorre submissions treat the grant of a pastoral lease as no
more than an exercise of a statutory power conferring
statutory rights, having
no significance for the Crown's beneficial interest in the land demised. So
viewed, the way is open to
contend that native title is merely suspended during
the currency of a lease and, when the lease is determined, the Crown has no
reversionary interest but only its original radical title burdened by the
native title. It is submitted that, although s 135 of
the 1910 Act provided
that on forfeiture or other determination of a lease prior to expiry of the
term "the land shall revert to
His Majesty and become Crown land, and may be
dealt with under this Act accordingly", that section said nothing as to the
Crown's
legal and beneficial interest in the land but merely ensured that the
Crown dealt with the land after it reverted to His Majesty
in accordance with
the Act. This argument accounts for the application of s 135 to the expiry of
licences as well as to the determination
of leases.

If it were right to regard Crown leaseholds not as estates held of the Crown
but merely as a bundle of statutory rights conferred
on the lessee, it would be
equally correct to treat a "grant in fee simple" not as the grant of a freehold
estate held of the Crown
but merely as a larger bundle of statutory rights. If
the grant of a pastoral lease conferred merely a bundle of statutory rights
exercisable by the lessee over land subject to native title in which the Crown
(on the hypothesis advanced) had only the radical
title, the rights of the
lessee would be jura in re aliena: rights in another's property. And, if
leases were of that character,
an estate in fee simple would be no different.
Then in whom would the underlying or residual common law title subsist?
Presumably,
in the holders of native title. But such a theory is inconsistent
with the fundamental doctrines of the common law [90] . And it would equate native title with an estate in fee
simple which, ex hypothesi, it is not. To regard interests derived from
the
Crown as a mere bundle of statutory rights would be to abandon the whole
foundation of land law applicable to Crown grants.
In Mabo [No 2] ,
Deane and Gaudron JJ declared that the general common law system of land law
applied from the establishment of the first Australian
colony. Their Honours
said [91] :

"It has ... long been accepted as incontrovertible that the provisions of the
common law which became applicable upon the establishment
by settlement of the
Colony of New South Wales included that general system of land law [92] . It follows that, upon the establishment of
the Colony, the radical title to all land vested in the Crown. Subject to some
minor
and presently irrelevant matters, the practical effect of the vesting of
radical title in the Crown was merely to enable the English system of
private ownership of estates held of the Crown to be observed in the
Colony . In particular, the mere fact that the radical title to all the
lands of the Colony was vested in the British Crown did not preclude
the
preservation and protection, by the domestic law of the new Colony, of any
traditional native interests in land which had existed
under native law or
custom at the time the Colony was established." (Emphasis added.)

The English system of private ownership of estates held of the Crown rests on
"two fundamental doctrines in the law of real property" [93] , namely, the doctrine of tenure and the doctrine of
estates.

By the interlocking doctrines of tenure and estates, the land law provides for
the orderly enjoyment in succession of any parcel
of land. The doctrine of
tenure creates a single devolving chain of title and the doctrine of estates
provides for the enjoyment
of land during successive periods [94] . The doctrines of tenure (with its incident of escheat [95] ) and estates ensure that no land in which
the Crown has granted an interest is ever without a legal owner [96] . The creation of a tenure, however limited the estate in
the particular parcel of land may be, establishes exhaustively the entire
proprietary legal interests which may be enjoyed in that parcel of land. If
the interests alienated by the Crown do not exhaust
those interests, the
remaining proprietary interest is vested in the Crown. In In re Mercer and
Moore [97] , Jessel MR said:

"If a freehold estate comes to an end by death without an heir, or by
attainder, it goes back to the Crown on the principle that
all freehold estate
originally came from the Crown, and that where there is no one entitled to the
freehold estate by law it reverts
to the Crown."

In this country, the Crown takes either by reversion on expiry of the interest
granted or by escheat on failure of persons to take
an interest granted. It is
unnecessary for present purposes to distinguish between them [98] .

By exercise of a statutory power to alienate an estate in land, the Crown
creates, subject to statute, a tenure [99]
between the Crown and the alienee. It follows that, subject to statute - and
all powers of alienation of interests in land in Australia
are governed by
statute [100] - where a leasehold estate is
the only proprietary interest granted by the Crown in a parcel of land [101] and the lessee is in possession, a legal
reversionary interest must be vested in the Crown. Such an interest is the
necessary foundation
for the existence of a right to forfeit for breach of
condition [102] .

An exercise of the statutory power of alienation of an estate in land brings
the land within the regime governed by the doctrines
of tenure and estates.
Once land is brought within that regime, it is impossible to admit an interest
which is not derived mediately
or immediately from a Crown grant or which is
not carved out from either an estate or the Crown's reversionary title. Native
title
is not a tenure [103] ; it is not an
interest held of the Crown, mediately or immediately. It is derived solely
from the traditional laws and customs of
the indigenous peoples. Consistently
with our constitutional history and our legal system, it is recognised as a
common law interest
in land provided it has not been extinguished by statute,
by a valid Crown grant of an estate inconsistent with the continued right
to
enjoy native title or by the Crown's appropriation and use of land
inconsistently with the continued enjoyment of native title.
As the majority
judgment in Western Australia v The Commonwealth. Native Title Act
Case [104] said:
"Under the common law, as stated in Mabo [No 2] , Aboriginal people and
Torres Strait Islanders who are living in a traditional society possess,
subject to the conditions stated
in that case, native title to land that has
not been alienated or appropriated by the Crown." (Emphasis added.)

It was only in respect of unalienated and unappropriated land that native
title was recognised as subsisting. Thus I noted in Mabo [No 2] [105] :

" As the Governments of the Australian Colonies and, latterly, the Governments
of the Commonwealth, States and Territories have alienated
or appropriated to
their own purposes most of the land in this country during the last two hundred
years, the Australian Aboriginal
peoples have been substantially dispossessed
of their traditional lands. They were dispossessed by the Crown's exercise of
its sovereign
powers to grant land to whom it chose and to appropriate to
itself the beneficial ownership of parcels of land for the Crown's purposes."

Native title is not recognised in or over land which has by alienation become
subject to inconsistent rights or which has by Crown
use become unavailable for
continued enjoyment of native title.

The provisions of the 1910 Act admit of no interest in land the subject of a
pastoral lease being held by any person other than
the Crown, the lessee and
persons taking an interest under the lease. Historically, it is impossible to
suppose that Parliament,
in enacting the 1910 Act (or, for that matter, the
1962 Act) might have intended that any person other than the Crown should have
any reversionary interest in land subject to a pastoral lease. In 1910 (as in
1962), no recognition was accorded by Australian courts
to the existence of
native title in or over land in Australia. On the contrary, the common
understanding was that, from the beginning
of colonial settlement, Crown grants
were made out of the Crown's proprietary title to all land in the colony [106] . The 1910 Act makes it clear that, on
the issue of a pastoral lease, the reversion was held by the Crown. Rent was a
debt "due
to His Majesty" [107] , the Minister
was the recipient of a notice of intention to surrender [108] and forfeiture was enforced only if the Governor in
Council so decided [109] . On forfeiture, the
land reverted to His Majesty [110] ; on
forfeiture or surrender, improvements to the property were deemed to be vested
in the Crown but were to be paid for by the "incoming
lessee, selector, or
purchaser" [111] ; and provision was made for
dealing with land "pursuant to a certificate given under ' The Escheat
(Procedure and Amendment) Act , 1891'" [112] . The last-mentioned Act provided a simplified
procedure for ascertaining "the failure of the heirs or next-of-kin of an
intestate,
or the alienage of a grantee, or such other facts, as may be
necessary to establish the title of Her Majesty in right of the Crown
or
otherwise" [113] . The procedure was
prescribed in order to determine, inter alia, questions arising "as to the
title of Her Majesty in right of the
Crown to any land or interest in land in
any case of escheat or alleged escheat" [114] . Thus, the 1910 Act treated the Crown as having not
only the power to issue a lease and thus entitle the lessee to a leasehold
estate
but also as having the reversionary interest which, under the ordinary
doctrines of the common law, a lessor had to possess in order
to support and
enforce the relationship of landlord and tenant. The 1910 Act also conferred
certain statutory rights on pastoral
lessees, the exercise of which would
require the carving of further proprietary interests out of the reversion. The
lessee of a
pastoral lease whose term had expired had a priority right [115] , if the land was then open to selection [116] , to apply for a selection, some
categories of which conferred a right to acquire the selection in fee simple [117] and others a right to take it on
perpetual lease [118] . These interests were
clearly intended to be carved out of the Crown's reversionary title, not out of
the title of a third party.
The Wik submission then denies the Crown's title to the reversion on the
ground that it is not assignable. That objection could
as easily be raised to
the proprietary interest of the Crown. But the Crown "assigns" a proprietary
interest in its land by grant
unless the Crown has acquired an interest that is
assignable, for example, the interest of a sub-lessor.

It is only by treating the Crown, on exercise of the power of alienation of an
estate, as having the full legal reversionary interest
that the fundamental
doctrines of tenure and estates can operate. On those doctrines the land law
of this country is largely constructed.
It is too late now to develop a new
theory of land law that would throw the whole structure of land titles based on
Crown grants
into confusion. Moreover, a new theory which undermines those
doctrines would be productive of uncertainty having regard to the
nature of
native title. That is a problem which will be examined in the next section.

6. Temporary suspension of native title

The second limb of the Wik and Thayorre attack on the notion of the Crown's
title on reversion limits that title to a nominal period
after the
determination of the lease. This submission is supported by the thirteenth
respondent ("ATSIC") which submits that the
Crown should not be taken, upon the
granting of a limited estate, to appropriate to itself ownership of the
reversion for an unlimited
time. At common law, a lessor who grants a
leasehold estate needs an estate out of which the leasehold estate is carved [119] , else there can be no demise [120] . The lessor needs no more to support the
grant than an estate greater (or deemed to be greater) than the estate
granted [121] . The demise in a pastoral
lease would be supported if the Crown's reversion were limited to some nominal
period beyond the term
of the lease. That would be a sufficient estate to
allow the Crown to enforce conditions binding on the lessee [122] .

Must the Crown's title be treated as any greater when the land is subject to a
claim of native title? The hypothesis of the submission
must be that native
title subsists notwithstanding the demise of the land for the term of the
pastoral lease and that the Crown acquires
no more than a nominal proprietary
interest sufficient to support the lease. Upon the determination of the lease,
native title revives
- assuming there are persons who satisfy the
qualifications of native title holders - and burdens the Crown's radical title
in the
same way as native title burdened that title prior to alienation.
Logically, this hypothesis would attribute to the Crown no more
than a radical
title (that is essentially a power of alienation controlled by statute)
whenever there might be a gap in or cesser
of the proprietary interest of an
alienee. It would treat that proprietary interest as a bundle of statutory
rights to which the
doctrines of tenure and estates had no necessary
application. No land would escheat to the Crown, at least while there were any
surviving holders of native title. That cannot be accepted. Even if the grant
of a lease were seen merely as an exercise of sovereign
power and not as an
alienation of property, the land would go back to the Crown on the
determination of the lease, if not as a matter
of title then as a matter of
seigniory [123] .

Nevertheless, the hypothesis seems to be internally consistent. But it fails
to attribute to the doctrines of tenure and estates
their function of
maintaining the skeleton of the law of real property unless native title is
treated as the equivalent of an estate
in remainder, falling into possession on
the determination of a prior estate. Of course, native title is not an estate
and to treat
native title as falling into possession on the determination of a
prior estate is to create problems of title not easy to resolve.
If the
holders of native title were recognised as the owners of an estate in remainder
in the land, could the priority right to
a selection enjoyed by a lessee [124] be exercised? And would the holders of
native title have become liable to pay for the improvements to the land
effected during the
expired lease? [125] To
what extent was the discretion to enforce a forfeiture against a lessee
affected by the supposed subsistence of native title
in the land? In the
unusual event of the determination of an estate in fee simple, would the land
revert to the Crown or would it
be taken by the holders of native title? And,
since the Racial Discrimination Act 1975 (Cth) commenced, would the
provisions [126] which annex statutory rights
to a pastoral lease (for example, a right to receive an offer of a new lease)
be ineffective by reason
of s 109 of the Constitution ?

These questions indicate some of the problems that arise once the fundamental
doctrines that govern the title to land granted by
the Crown under the 1910 Act
are departed from. In my opinion, the common law could not recognise native
title once the Crown alienated
a freehold or leasehold estate under that Act.
Consequently, the common law was powerless to recognise native title as
reviving after
the determination of a pastoral lease issued under the 1910 Act.
Does equity provide any relief to the erstwhile holders of native
title?

7. The claims for equitable relief

The Wik and Thayorre submissions assert the existence of a fiduciary duty owed
by the Crown to the indigenous inhabitants of the
leased areas. The duty is
said to arise from the vulnerability of native title, the Crown's power to
extinguish it and the position
occupied for many years by the indigenous
inhabitants vis-&agrave;-vis the Government of the State. These factors do not
by themselves
create some free-standing fiduciary duty. It is necessary to
identify some action or function the doing or performance of which
attracts the
supposed fiduciary duty to be observed [127] .
The doing of the action or the performance of the function must be capable of
affecting the interests of the beneficiary and the
fiduciary must have so
acted [128] that it is reasonable for the
beneficiary to believe and expect that the fiduciary will act in the interests
of the beneficiary (or,
in the case of a partnership or joint venture, in the
common interest of the beneficiary and fiduciary [129] ) to the exclusion of the interest of any other person
or the separate interest of the beneficiary [130] .

In the present case the only relevant function performed by the Crown is the
exercise of the power of alienation. That is the only
power the exercise of
which relevantly affects native title. With all respect for the opposing view,
I am unable to accept that
a fiduciary duty can be owed by the Crown to the
holders of native title in the exercise of a statutory power to alienate land
whereby
their native title in or over that land is liable to be extinguished
without their consent and contrary to their interests.

The exercise of statutory powers characteristically affects the rights or
interests of individuals for better or worse. If the
exercise of a
discretionary power must affect adversely the rights or interests of
individuals, it is impossible to suppose that
the repository of the power shall
so act that the beneficiary might expect that the power will be exercised in
his or her interests.
The imposition on the repository of a fiduciary duty to
individuals who will be adversely affected by the exercise of the power
would
preclude its exercise. On the other hand, a discretionary power - whether
statutory or not - that is conferred on a repository
for exercise on behalf of,
or for the benefit of, another or others might well have to be exercised by the
repository in the manner
expected of a fiduciary [131] . Thus in Guerin v The Queen [132] , the Crown accepted a surrender by an Indian band of
native title to land in order that the land be leased by the Crown to a third
party. The statutory scheme which provided for the surrender to the Crown and
its subsequent dealing with the land imposed on the
Crown the duty to act "on
the band's behalf" [133] , as "the appointed
agent of the Indians ... and for their benefit" [134] or for their "use and benefit" [135] . Similarly, in the United States the statutory scheme
for dealing with Indian land requires the sanction of a "treaty or convention
entered into pursuant to the Constitution " [136] . The scheme has its origin in the Indian
Nonintercourse Act 1790 (US) [137] which,
in its successive forms, has been held to impose on the Federal Government "a
fiduciary duty to protect the lands covered
by the Act" [138] .

The power of alienation conferred on the Crown by s 6 of the 1910 Act is
inherently inconsistent with the notion that it should
be exercised as agent
for or on behalf of the indigenous inhabitants of the land to be alienated.
Accordingly, there is no foundation
for imputing to the Crown a fiduciary duty
governing the exercise of the power.

This conclusion precludes the acceptance of a further submission made on
behalf of the Wik and Thayorre Peoples. That submission
sought to impose a
constructive trust in their favour of the Crown's reversionary interest in the
leased land. If the constructive
trust be viewed as a remedial institution, as
Deane J viewed it in Muschinski v Dodds [139] , it is nevertheless available "only when warranted by
established equitable principles or by the legitimate processes of legal
reasoning,
by analogy, induction and deduction, from the starting point of a
proper understanding of the conceptual foundation of such principles" [140] . Given that no fiduciary duty was
breached by the Crown in issuing the pastoral leases under s 6 of the 1910 Act
and that the issue
of those leases destroyed native title, there is no
principle of law or equity which would require the imposition of a constructive
trust on the reversion to restore what the holders of native title had lost.

The Wik submission raises another equitable basis of relief. It is said that,
by reason of the acquiescence of the State and the
pastoral lessees in the
continued exercise by the Wik Peoples of their native title rights, it would be
unconscionable now to hold
them liable to ejectment without investigation of
the basis or bases on which they have remained in occupation. The propounded
basis
of relief depends, of course, on contested issues of fact but that basis
was not pleaded. Prior to the hearing in this Court, the
submission was not
argued. It would not be appropriate to express any view on the merits of the
submission at this stage. This
appeal relates to the answers given by Drummond
J to the questions determined as preliminary issues. Those questions turn on
the
subsistence of native title, not on the existence of an equity which would
entitle the Wik Peoples to remain on the land to continue
to exercise the
rights which they would have been entitled to enjoy if native title still
subsisted.

In the result, I would hold the answers given by Drummond J to questions 1B
and 1C to be correct. The Wik and Thayorre Peoples'
claims fail because native
title was extinguished on the issue of the leases under s 6 of the 1910 Act.
It is unnecessary to advert
to the effect of the 1962 Act. The principles of
the law may thus be thought to reveal "a significant moral shortcoming" which
can
be rectified only by legislation or by the acquisition of an estate which
would allow the traditions and customs of the Wik and Thayorre
Peoples to be
preserved and observed. Those avenues of satisfaction draw on the certainty of
proprietary rights created by the sovereign
power. Such rights, unlike the
rights of the holders of native title, are not liable to extinguishment by
subsequent executive action.
8. Claims against Comalco, Pechiney and Queensland

The Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957
(Q) ("the Comalco Act ") provided for the making of an agreement between the
State of Queensland and Comalco. Section 2 provides:

" The Premier and Chief Secretary is hereby authorised to make, for and on
behalf of the State of Queensland, with Commonwealth Aluminium
Corporation Pty
Limited, a company duly incorporated in the said State and having its
registered office at 240 Queen Street, Brisbane,
in the said State, the
Agreement a copy of which is set out in the Schedule to this Act (herein
referred to as 'the Agreement')."

Section 3 provides:

" Upon the making of the Agreement the provisions thereof shall have the force
of law as though the Agreement were an enactment of
this Act.

The Governor in Council shall by Proclamation notify the date of the making of
the Agreement."

The Agreement set out in the schedule required the State, inter alia, to grant
to Comalco a Special Bauxite Mining Lease for an
initial term of 84 years [141] . The form of lease was prescribed [142] . The Agreement was made on 16 December
1957 and the lease was issued on 3 June 1965 as ML7024.

The Wik submission contends that the Agreement and ML7024 were entered into in
disregard of the rules of procedural fairness and
in breach of the State's
fiduciary duty to the Wik Peoples and that Comalco was a party to that breach.
It is further contended that
the State and Comalco were unjustly enriched by
the breach. Relief is claimed on the footing that the decisions to enter into
the
Agreement and to grant ML7024 were invalid and that the Agreement and
ML7024 are invalid. The relief claimed relates to impairment
or loss of the
Wik Peoples' enjoyment of native title rights and possessory rights in or over
the land leased and the benefits derived
by Comalco from exploiting the lease.
Comalco's response is that, as s 3 gives the Agreement the force of law, no
claim by the Wik
Peoples can be based on any irregularity or breach of duty
that might have occurred in the course of negotiating or executing the
Agreement.
Section 3 was referred to by Dunn J in Commonwealth Aluminium Corporation
Limited v Attorney-General [143] in these
terms:

"By providing, in s 3, that upon the making of the Agreement its provisions
'shall have the force of law as though the Agreement
were an enactment of this
Act,' legal effect is given to provisions which otherwise would lack such
effect, because of such legislation
as I have already discussed. The Agreement
remains something apart from the Act, however, the legislative artifice adopted
in order
to give it effect does not make it, in point of law, 'an enactment of
this Act'."

This judgment led to the submission that the effect of s 3 was limited to the
overriding of particular legislative impediments to
the making or
implementation of the Agreement. That is too narrow a view of the operation of
s 3. To take one example: that view
would not admit that mandamus might have
gone to compel the granting of the Special Bauxite Mining Lease pursuant to cl
8 of the
Agreement, although the State's obligation to grant that lease was the
leading purpose of the Comalco Act .

However, the sufficiency of the Comalco response turns on the operation
attributed to s 2 as well as to s 3 of the Comalco Act .
Although s 2
authorises, but does not command, the Premier and Chief Secretary to make the
Agreement, the authorisation it gives
is unqualified
by any requirement as to
the performing of a fiduciary duty or the according of natural justice. So
soon as the Agreement
is in
fact made, s 3 operates to give it the force of law
"as though [it] were an enactment of this Act". It follows that, the Agreement
having been
made, the powers conferred by the Agreement acquire the force of
statutory powers. Thus s 3 operates to give validity
to what is
done in their
exercise [144] . Therefore the granting of
the Special Bauxite Mining Lease was valid. Moreover, whatever consequences
flowed to the Wik Peoples
from the granting of that lease could not be
actionable loss or damage, for those consequences were the result of an act
sanctioned
by the Comalco Act .

Nor could relief be granted in relation to the benefits derived by Comalco's
exploitation of the lease for those benefits flowed
to Comalco from the
granting of the lease pursuant to legislative authority.

The Comalco response is thus good in law.
The Wik claim against Aluminium Pechiney Holdings Pty Limited (Pechiney) and
the submission in support arise from the making and
implementing of an
Agreement (the "Associates Agreement") authorised by the Aurukun Associates
Agreement Act 1975 (Q). The Associates Agreement provided for the grant of
a Special Bauxite Mining Lease [145] for 42
years [146] in a form set out in the Fourth
Schedule to that Agreement [147] . The
provisions of the Aurukun Associates Agreement Act , the allegations in
the statement of claim with respect to the making of the Associates Agreement
under that Act and the relief claimed
are indistinguishable from the provisions
of the Comalco Act and the allegations and the relief claimed against Comalco.
Pechiney's
response, substantially identical to Comalco's response, is
also
good in law. The claim against Pechiney seeks relief in respect
of an earlier
agreement (the "Access Agreement") between the
Director of Aboriginal and
Islanders' Advancement and certain corporations
including Pechiney. The Access
Agreement was scheduled
to the Associates Agreement, the latter being given the
force of law. The
third respondent (The Aboriginal and Islander Affairs
Corporation) is the statutory successor of the Director and is sued in that
capacity. An account is sought against both Pechiney
and the third respondent
by reason of their entry into the Access Agreement
and the obtaining of
benefits under it. However, in
The Corporation of the Director of
Aboriginal and Islanders Advancement v Peinkinna [148] the Privy Council held that the Aurukun Associates
Agreement Act ratified the Access Agreement and recognised it as valid and
subsisting. There is no reason to dissent from that view, the consequence
of
which is that neither entry into the Access Agreement nor the obtaining of
benefits under it can give rise to a cause of action
in the Wik Peoples. It
follows that the answers given by Drummond J to questions 4 and 5 were
correct.
I would dismiss the appeals and make orders for costs against the Wik Peoples
and the Thayorre People in favour of those parties
who opposed their claims. I
would make no order as to the costs to be paid to or by other parties.

DAWSON J. In the Native Title Act Case [149] I indicated that I intended to follow the decisions of
this Court in Mabo v Queensland [No 1] [150] and Mabo v Queensland [No 2] [151] . Following that course, I am able to express my
agreement with the judgment of the Chief Justice in these matters. I have
nothing
which I wish to add.

TOOHEY J.

Table of Contents

Introduction 46-50

The Holroyd River Holding lease 50-52

The Mitchellton Pastoral Holding leases 52-53

Pastoral leases: general observations 53-54

Pastoral leases: an historical survey 54-59

The Land Act 1910 59-61

The Land Act 1962 61-62

Leases: exclusive possession 62-66

Pastoral leases: exclusive possession? 66-70

Extinguishment 70-76

Radical title 76-79

Non-entry into possession 79-80

Extinguishment revisited 80

The claims against Queensland, Comalco
and Aluminium Pechiney 80

Answering the questions 81-82

Postscript 82-83

Introduction

These proceedings, which were removed into this Court pursuant to s 40 of the
Judiciary Act 1903 (Cth), have their origin in an action brought by the
Wik Peoples in the Federal Court of Australia. That action was initiated
before
the coming into operation of the Native Title Act 1993 (Cth).
The catalyst for the action was the decision of this Court in Mabo v
Queensland [No 2] 152 .

The proceedings in the Federal Court were described by Drummond J in the
following terms [153] :

"The action was brought by the Wik Peoples, an Aboriginal clan or group, for a
declaration that it has certain native title rights
over a large area of land
in North Queensland. They also claim damages and other relief, if it be found
that their native title
rights have been extinguished. One of the respondents
is the Thayorre People, another Aboriginal clan or group, who have
cross-claimed
for a similar declaration in respect of lands that, in part,
overlap those the subject of the Wik Peoples' claim."

However, by the time of his Honour's judgment the Wik Peoples had included an
alternative claim under the Native Title Act though that claim is not
the subject of the judgment or of this appeal. Although his Honour speaks of
"native title rights" [154] , that is not
precisely the language of the relevant pleadings. Paragraph 8 of the statement
of claim in its amended form filed on
behalf of the Wik Peoples asserts that
"The Wik peoples and their predecessors in title are and have always been the
holders of Aboriginal
title in ... the claimed land". "Aboriginal title" is
defined in par 1 of the statement of claim as meaning

"title to land arising by virtue of Aboriginal tradition and recognised by the
common law of Australia and has the same meaning as
'native title' as defined
in the Native Title Act , 1993 (CTH)".

"Native title" and "native title rights and interests" have a common
definition in s 223 of the Native Title Act . Each expression means
"the communal, group or individual rights and interests of Aboriginal peoples
or Torres Strait Islanders in relation to land or waters,
where:

(a) the rights and interests are possessed under the traditional laws
acknowledged, and the traditional customs observed, by the
Aboriginal peoples
or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and
customs, have a connection with the land or waters; and

The significance of the definition for the appeal by the Wik Peoples lies
largely in a system of "rights and interests" to which
the definition adverts.
This will become clearer as these reasons progress.

The cross-claim of the Thayorre People also uses the language of "aboriginal
title". Their statement of claim does not define that
title quite in the way
that the pleading of the Wik Peoples does; rather it describes the expression
by reference to their and their
predecessors' occupation and use of the land
claimed and their connection with it

"in accordance with a system of rights, duties and interests exercised,
acknowledged and enjoyed by Thayorre individuals, families,
clans and groups in
accordance with their traditional laws and customs".

Nevertheless, they claim title by reason of "a system of rights, duties and
interests". Again, the significance of this formulation
will emerge later in
these reasons.

Accordingly, references in the judgment of Drummond J to native title rights
must be understood in light of the pleadings, as must
the use of the expression
in these reasons.

The land claimed by the Wik Peoples and the Thayorre People ("the appellants")
includes land over which pastoral leases were granted
by the Crown. The former
claim encompasses land the subject of the Holroyd River Holding lease ("the
Holroyd lease"). The Mitchellton
pastoral leases ("the Mitchellton leases")
were granted over land within the area of claim by the Thayorre People and also
by the
Wik Peoples. Central to the claims was the argument that native title
rights had survived the granting of these pastoral leases.
Save in one
respect, which is discussed later in these reasons under the heading "Non-entry
into possession", no attack was made
by the appellants on the efficacy of the
pastoral leases. In effect the Wik Peoples and the Thayorre People each argued
for native
title or aboriginal title, "co-existing" with the interests of the
lessees. In the event of an inconsistency between rights exercisable
by a
lessee and rights exercisable by the holders of native or aboriginal title, the
appellants accepted that the former would prevail.
While accepting the
language of extinguishment, the appellants were disposed to argue in terms of
restrictions on the enforceability
of their rights.

On 29 January 1996 Drummond J gave judgment on five preliminary questions
which had been identified for the purposes of the proceedings
in the Federal
Court [155] . In the course of those answers,
his Honour held that each of the leases in question conferred on the lessee
"rights to exclusive
possession" of the land and that thereby the grant of each
lease "necessarily extinguish[ed] all incidents of Aboriginal title ...
in
respect of the land demised under the pastoral lease". This is a considerable
over-simplification of Drummond J's judgment but
it will suffice at this stage
in order to show how the matters come before this Court [156] . It should be noted, however, that his Honour did not
decide whether the appellants are the holders of native title rights in respect
of the leased land. That matter was not explored and is shut out by his
Honour's answers to the questions. The result is to clothe
the principal
questions with a certain unreality.

Drummond J also answered questions bearing on claims by the appellants against
the State of Queensland, Comalco Aluminium Ltd, and
Aluminium Pechiney Holdings
Pty Ltd [157] . By those claims the Wik
Peoples challenged the validity of Special Bauxite Mining Leases which had been
granted by the State to
mining companies under the authority of Queensland
legislation.

On 22 March 1996 Spender J granted the appellants leave to appeal to the Full
Court of the Federal Court against the judgment of
Drummond J. Leave was
necessary because his Honour's judgment was interlocutory and did not dispose
finally of the proceedings.
Notices of motion were filed in the Federal Court
seeking removal of both matters to the High Court. An order to that effect was
made on 15 April.

An amended notice of appeal filed in this Court on 28 May excised any
challenge to the answer given by Drummond J to the first question
asked of him,
namely, whether the power of the Queensland Parliament at the time of its
establishment and thereafter was subject
to a limitation that prevented it from
enacting laws providing for the grant of pastoral leases that do not preserve
native title
rights. His Honour answered that question adversely to the
appellants.

In its present form the notice of appeal is primarily a challenge to the
conclusion of Drummond J that the grant of the Holroyd
lease and the
Mitchellton leases in each case extinguished any native title rights in the
land. When the hearing began in this Court,
leave to intervene was granted to
State and Territory governments and others. However, the Court made it clear
that it proposed
to deal only with the particular questions raised by the
notice of appeal, questions which related specifically to the Holroyd and
Mitchellton leases.

His Honour's approach to the significance of the pastoral leases in question,
dictated as he considered by the majority judgment
of the Full Court of the
Federal Court in North Ganalanja Aboriginal Corp v
Queensland 158 , was in the following terms [159] :

" I regard the majority decision as binding authority that the executive act of
granting a pastoral lease under Crown lands legislation
that does not differ
materially from the Land Act 1902 will extinguish any native title rights that
existed in respect of the Crown
land the subject of the lease, provided the
lease confers a right to exclusive possession for other than a short period on
the lessee
and also provided the lease does not contain a reservation
sufficient to preserve those native title rights."

The conclusion reached by the Full Court in North Ganalanja was that
the 1904 pastoral lease under consideration in that case necessarily
extinguished any native title rights that may have
existed in the land leased,
for the reason that the lease conferred a right of exclusive possession on the
lessee. This right of
exclusive possession, though limited in time to the
duration of the lease, was held sufficient to extinguish all native title
rights.
Drummond J observed [160] :

"I also regard the majority decision as authority binding on me that a lease
will confer a right to exclusive possession sufficient
to have that
extinguishing effect, notwithstanding the fact that the lessee's interest is
fettered by conditions and statutory limitations
of the kind to which the 1904
lease was subject and notwithstanding that the grant is expressed to be 'for
pastoral purposes only',
as was the 1904 lease".
Nevertheless, his Honour qualified this approach, at least to the extent of
recognising that there may be a question of degree involved
in determining
whether a pastoral lease does extinguish native title rights where a short term
is involved. He referred also to
the extent of any restrictions imposed by the
lease and the statute pursuant to which it was granted as matters relevant to
the issue
whether

"the particular lease truly does confer a right of exclusive possession or at
least a right of possession sufficiently exclusive
to extinguish native
title" [161] .

The Holroyd River Holding lease

The story of the Holroyd lease begins with Instrument of Lease No 4652, dated
8 February 1945. It is titled "Lease of Pastoral
Holding under Part III,
Division 1 of ' The Land Acts , 1910 to 1943'" [162] . The lease is expressed to be for "pastoral purposes
only". The lessee is identified as Marie Stuart Perkins and the term of the
lease is 30 years from 1 October 1944 at a yearly rent. The area leased is
1,119 square miles. Reference is made in the instrument
to a notification
dated 8 June 1944

"declaring the said land open for Pastoral Lease, and to all other rights,
powers, privileges, terms, conditions, provisions, exceptions,
restrictions,
reservations, and provisoes referred to, contained, or prescribed in and by the
said Acts [163] , ' The Mining on Private
Land Acts, 1909 to 1929,' and The Petroleum Acts, 1923
to 1939,' or any Regulations made or which may hereafter be made under the
aforesaid Acts or any of them".

The lease also contains reservations of minerals and petroleum and rights of
access for the purpose of searching for and obtaining
them. It concludes:

"AND WE DO FURTHER RESERVE the right of any person duly authorised in that
behalf by the Governor of Our said State in Council at
all times to go upon the
said Land, or any part thereof, for any purpose whatsoever, or to make any
survey, inspection, or examination
of the same".

On 20 December 1972 the then lessees, John Herbert Broinowski, John Darling,
James Maurice Gordon and Ross Farm Pty Limited, applied
under s 155 of The
Land Acts 1962 to 1967 for the grant of a new lease of the holding. The
application contains a description of the land by the lessees: natural
waters
only; bloodwood, ironwood, stringy bark, ti-tree, messmate, ironstone ridges
with some melon-hole country, some spear grass
with some kangaroo, purely
breeding country; approximately one beast to 60 acres; country suitable for
cattle breeding only; no improvements;
no accommodation.

There followed correspondence between the Land Administration Commission and
the lessees, as a result of which the subsisting lease
was surrendered so that
a new lease might issue. The new lease, which is the current lease, is
Instrument of Lease No 4652, dated
27 March 1975. It is titled "Lease of
Pastoral Holding under Part VI, Division 1, of the Land Act 1962-1974".
It is not expressed to be for "pastoral purposes only". It identifies the
former lessees as the new lessees. It is
for a term of 30 years from 1 January
1974 at a yearly rent. It is expressed to be subject to statutory and other
reservations similar
to those contained in the earlier lease. It is granted
upon condition that within five years from the commencement of the lease
the
lessees carry out a number of improvements by way of buildings, an airstrip,
internal fencing, dams, a set of main yards and
dip; sow 100 acres at least as
a seed production area; and "Enclose the holding with a good and substantial
fence". The lessees
are further required "during the whole term of the lease
[to] maintain all improvements".

In his judgment Drummond J said [164] :

"The question [165] focuses solely on the
current lease and ignores the earlier lease because the current lease is no
doubt considered to be typical
of a number of leases granted over lands in the
area of the applicants' claim not previously leased."

His Honour concluded [166] :

"This lease is subject to substantially less onerous restrictions than was the
1904 lease considered in the North Ganalanja case ... There is no
ground for holding that this lease is so different in any material respect from
the 1904 lease that it should
not be held ... to confer on the lessee the right
to exclusive possession of the area of the lease. It follows that, upon the
grant
of this lease, any native title rights the applicants held in respect of
those lands were extinguished, unless the lease contained
a reservation
sufficient to preserve those rights to the applicants."

Nevertheless, reference is made in these reasons from time to time to the
earlier lease.

The Mitchellton Pastoral Holding leases

These leases were granted over lands within the area of claim by the Thayorre
People.

The story of this leasehold begins with Instrument of Lease No 2464, dated 25
May 1915. It is titled "Lease of Pastoral Holding
under Part III, Division 1
of 'The Land Act of 1910'". The lessees were Alfred Joseph Smith, Thomas
Alexander Simpson and Marshall
Hanley Woodhouse. It is expressed to be for
"pastoral purposes only". The term of the lease is 30 years from 1 April 1915
at a
yearly rent. The area leased is 535 square miles. The lease has
reservations which are similar to, though not identical with, the
reservations
in the Holroyd lease. There is no reservation of petroleum; the Petroleum
Act had not then been enacted.

The lessees never took possession of the holding. On 20 July 1918 the lease
was forfeited, "the lessees having failed to pay the
annual rent due". Shortly
thereafter the Mitchellton area was declared open for pastoral lease.

Instrument of Lease No 2464, dated 14 February 1919, was also granted under Pt
III Div 1 of The Land Act 1910 (Q). It was of the same land as the 1915
lease. The lessee was Walter Sydney Hood. The lease is expressed to be for
"pastoral
purposes only". It was for a term of 30 years from 1 January 1919.
The lease was subject to reservations under The Mining on Private Land
Act 1909 (Q) and The Petroleum Act 1915 (Q). Like the previous
lease, it concluded with a reservation, concerning the right of entry by
authorised persons, in the
general terms noted in the Holroyd lease.

On 9 September 1919 Mr Hood transferred his interest as lessee to The Byrimine
Pastoral Properties Limited. On 12 October 1921
the company surrendered the
lease pursuant to s 122 of The Land Act 1910. On 8 July 1921 the Chief
Protector of Aboriginals had written to the Under Secretary, Home Secretary's
Department, Brisbane,
noting that the Chief Protector's Office had not been
consulted at the time of the lease in 1919 and that "there are about 300
natives
roaming on this country, and when the company starts operations the
natives will doubtless be hunted off". The Chief Protector noted
that there
was a suggestion that the lease might be allowed to lapse. In that event, he
said, "I would strongly urge that, before
allowing anyone else to obtain
possession, this Department be first consulted as regards the need for
reserving the area for native
purposes". On 12 January 1922, an Order in
Council reserved the land, the subject of the former leases, for the use of
Aboriginal
inhabitants of Queensland. The reservation of the land did not
extinguish any native title rights then in existence [167] .

Speaking of the Mitchellton leases, Drummond J said [168] :

" The lease considered in the North Ganalanja case, supra, and those
granted under the Land Act 1910 confer substantially the same rights on
the lessee and subject him to substantially the same restrictions: the 1904
lease was
subject to a more restrictive limitation than the Mitchellton
Pastoral Leases in that it was subject to a condition reserving to
the Crown
unrestricted right to resume land for reserves without compensation (save for
improvements)."

His Honour then went on to say (as he had said in the case of the Holroyd
lease) that each of the leases issued under the 1910 legislation
was subject to
a less burdensome range of limitations and restrictions than the lease
considered in North Ganalanja . He concluded [169] :

"It therefore follows that each of these leases should be held to confer the
right to the exclusive possession of the leased area
on the lessees. The grant
of the first of the Mitchellton Pastoral Leases must therefore be taken to have
extinguished any native
title rights the Thayorre People may previously have
enjoyed with respect to the leased lands."

Pastoral leases: general observations

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

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

The grant of the pastoral leases with which these appeals are concerned did
not take place in an historical vacuum. It reflected
the history of land
grants in Queensland. That history cannot be understood without some reference
to what had taken place in New
South Wales of which Queensland earlier formed
part.

Pastoral leases: an historical survey [170]

When the Australian colonies were first established there was no doubt as to
the power of the Crown with respect to the disposition
of waste lands. The
Royal Prerogative was initially the source of grants of land in Australia [171] . The situation was explained by Windeyer
J in Randwick Corporation v Rutledge in these terms [172] :

"The early Governors had express powers under their commissions to make grants
of land. ... The colonial Act, 6 Wm IV No 16 (1836),
recited ... that the
Governors ... had authority 'to grant and dispose of the waste lands' ... And
when in 1847 a bold argument,
which then had a political flavour, challenged
the right of the Crown, that was to say of the Home Government, to dispose of
land
in the colony, it was as a legal proposition firmly and finally disposed
of by Sir Alfred Stephen CJ : The Attorney-General v Brown ".

Attorney General v Brown [173] was not
followed in Mabo [No 2] but its historical role remains.

The need for statutory regulation was brought about by movements in New South
Wales in the late 1820s to occupy large areas of land
to depasture stock. The
"squatters" moved on to land to which they had no title. The land was
unsurveyed, their activities were
uncontrolled. And of course they had no
security. The colonial authorities met the movement of squatters with a system
of occupation
licences. The Crown Lands unauthorized Occupation Act
1839 (NSW) [174] established a Border Police
force

"for the mutual protection and security of all persons lawfully occupying or
being upon Crown Lands beyond the limits allotted for
location".

The Act made it unlawful to occupy Crown lands beyond the limits of location
without a valid lease or license; it imposed a penalty
for unauthorised
occupation. The protective reference to persons "being upon Crown Lands" was
clearly wide enough to include Aborigines.

It was in 1842 that the management and disposal of Crown land was first
brought under statutory control with the enactment of the
Sale of Waste
Lands Act 1842 (Imp) [175] . "The year
1846 saw the first step taken along a road which led to the subsequent
invention of a multitude of Australian tenures
of new types." [176] In that year the Sale of Waste Lands Act Amendment
Act 1846 (Imp) [177] authorised the
making of Orders in Council. An Order in Council was issued in 1847 in respect
of New South Wales. This made it
lawful for the Governor to grant leases of
land in unsettled districts for any term not exceeding 14 years for pastoral
purposes.
Dr Fry has described this Order in Council as having a two-fold
significance in the New South Wales of the day.

"It brought to an end the policy of concentration of settlement, which was to
have been achieved by the Crown refusing to alienate
the fee simple of, or to
lease, any land outside 'the nineteen counties' around Sydney or outside small
areas around Hobart, Melbourne
and Brisbane. It also introduced a system of
Crown leasehold tenures which led to the whole of Australia being transformed
in subsequent
decades into a patchwork quilt of freeholdings, Crown
leaseholdings, and Crown 'reserves'." [178]

Less than a decade later the English authorities, through the New South
Wales Constitution Act 1855 (Imp), surrendered their control over Crown
lands. Thereafter, the entire management and disposal of Crown lands was
vested
in the New South Wales legislature.

It is against this background that one goes to the situation in what later
became the State of Queensland. By Proclamation dated
10 February 1842 [179] the District of Moreton Bay ceased to be
a penal settlement. Pursuant to the provisions of the Crown Lands
unauthorized Occupation Acts of 1839-1841 , a Commissioner of Crown Lands
was appointed for the Moreton Bay District. Other Districts were proclaimed as
settlement expanded
in the move to open up new land for pastoral purposes.

In June 1859 Queensland became a separate colony. The laws of New South
Wales, including laws regulating the "sale, letting, disposal
and occupation"
of waste lands, remained in force until repealed or varied by the legislature
of the new colony. By Order in Council
of 6 June 1859 the Queensland
legislature was empowered to make laws with respect to waste lands. By s 30 of
the Constitution Act 1867 (Q), "it shall be lawful for the Legislature
of this colony to make laws for regulating the sale letting disposal and
occupation
of the waste lands of the Crown within the said colony". Section 40
vested the "entire management and control of the waste lands
belonging to the
Crown in the said Colony of Queensland ... in the Legislature of the said
colony". The local legislature adopted
the form of pastoral lease tenure which
had evolved in New South Wales. Many statutes were passed between 1860 and
1962 which provided
for or affected pastoral leases. It is unnecessary to
detail them; it suffices to say they reflected a regime designed to meet a
situation that was unknown to England, namely, the occupation of large tracts
of land unsuitable for residential but suitable for
pastoral purposes. Not
surprisingly the regime diverged significantly from that which had been
inherited from England. It resulted
in "new forms of tenure" [180] . Regard must be had to the extraordinary complexity of
tenures in Australia, perhaps most of all in Queensland. This can be seen
most
readily in the writings of Dr Fry.

While Australia inherited the English law of tenure, it must be remembered
that the system of tenures had by then undergone much
change. In 1788 socage
and copyhold were the only lay tenures recognised by English law and
frankalmoin was the only spiritual tenure.
Frankalmoin was then obsolescent;
it was never specified in any Australian grant. No land has been held here on
copyhold tenure.
Socage is the only form of tenure that, for practical if not
theoretical purposes, has existed in this country.

As early as 1905 the authors of what became the standard real property text
for New South Wales had written [181] :

"The law of real property now in force here, and the law on the same subject in
force in England, present more numerous and more
striking differences and
divergences than are found in any other branch of equal importance. ... The
English law of real property
... has ... received a strong impress of feudalism
... It was therefore natural that this medieval growth, when transplanted to
new and uncongenial soil, should soon begin to wither in its weakest branches -
that is to say, in the principles which derived the
least support from public
utility and convenience, and presented the most striking departures from modern
notions of reason and justice."

What is important about this history of legislation, both in New South Wales
and Queensland, is that it is essentially the story
of the relationship between
the Crown and those who wished to take up land for pastoral purposes. It
reflects the desire of pastoralists
for some form of security of title and the
clear intention of the Crown that the pastoralists should not acquire the
freehold of
large areas of land, the future use of which could not be readily
foreseen.
Writing in 1946-1947, Dr Fry commented [182] :

"A century of subsequent legislation by the various legislatures of Australia
has developed a new system of land tenures in the various
Australian States and
Territories, so that it is now possible to say, with a very high degree of
accuracy, that the constitutional
supremacy of Australian Parliaments and the
Crown over all Australian lands, as much as the feudal doctrines of the Common
Law, is
the origin of most of the incidents attached to Australian land
tenures."

Of course Dr Fry was not writing with the principles enunciated in Mabo [No
2] in mind. His starting point was clear: "Rights in respect of any land
in Australia must therefore be derived either directly or
indirectly from the
Crown, or not at all." [183] Mabo [No
2] has shown his starting point to be too narrow. What is important for
present purposes is Dr Fry's focus on legislation rather than
feudal doctrine
in order to identify the incidents of tenure. This reinforces the need to look
at the relevant statutory provisions,
rather than simply apply feudal notions
of tenure without considering their place in the statutory scheme. Thus in
R v Toohey; Ex parte Meneling Station Pty Ltd , where the question was
whether a grazing licence under the Crown Lands Act 1931 (NT) conferred
an "estate or interest" in the land within the meaning of the Aboriginal
Land Rights (Northern Territory) Act 1976 (Cth), Mason J said [184] :

"The grazing licence is the creature of statute forming part of a special
statutory regime governing Crown land. It has to be characterized
in the light
of the relevant statutory provisions without attaching too much significance to
similarities which it may have with
the creation of particular interests by the
common law owner of land."

These comments apply with particular force to Queensland where, at least at
the time Dr Fry was writing, there were approximately
70 different kinds of
Crown leasehold and Crown perpetual leasehold tenures. To approach the matter
by reference to legislation
is not to turn one's back on centuries of history
nor is it to impugn basic principles of property law. Rather, it is to
recognise
historical development, the changes in law over centuries and the
need for property law to accommodate the very different situation
in this
country.

Pastoral leases lie in the grant of the Crown. They are the creature of
statute and the rights and obligations that accompany them
derive from statute.
In light of this, it is pertinent to turn to the legislation pursuant to which
the leases the subject of these
appeals were granted.

The Land Act 1910

The grants in question were of course of Crown land. The first Holroyd lease
and both Mitchellton leases were granted pursuant
to and subject to the
conditions and provisos of Pt III Div 1 of the Land Act 1910 (Q).

The 1910 Act is described in its long title as

"An Act to Consolidate and Amend the Law relating to the Occupation, Leasing,
and Alienation of Crown Land."

Section 6(1) empowers the Governor in Council, in the name of His Majesty, to
"grant in fee-simple, or demise for a term of years,
any Crown land within
Queensland". "Crown Land" is defined [185]
as

"All land in Queensland, except land which is, for the time being -

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

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

(c) Subject to any lease or license lawfully granted by the Crown: Provided
that land held under an occupation license shall be
deemed to be Crown land".

Part III of the Act deals with Pastoral Tenures. The term pastoral tenures is
wider than pastoral leases since it includes occupation
licenses granted under
Pt III [186] . Division 1 of Pt III
prescribes the machinery whereby Crown land may be declared open for pastoral
lease for a term not exceeding
30 years and competing applications dealt with.
When the term of any lease exceeds 10 years, the term is to be divided into
periods,
the last period to be of such duration as to permit the other period
or periods to be of 10 years duration [187] .
Division 1 contains other provisions relating to the computation of rent.
Subject to what is said in the general provisions of the
Act, little more
appears as to the rights and obligations attaching to pastoral leases.

Division 11 of Pt III deals with occupation licenses. Section 45 empowers the
Minister to declare Crown land to be open for occupation
under occupation
license. A yearly rent is payable. Each license expires on 31 December of the
year in which it is granted but
is renewable from year to year [188] . While Pt III makes specific provision for pastoral
leases and occupation licenses in respect of term and rent, other parts of the
Act apply equally to both.

There are two other sections of the 1910 Act which should be noted because of
the attention paid to them (or their counterparts
in later legislation) in
argument. The first is s 135 which reads:

"If the license or lease of any land is determined by forfeiture or other cause
before the expiration of the period or term for which
it was granted, then,
unless in any particular case other provision is made in that behalf by this
Act, the land shall revert to
His Majesty and become Crown land, and may be
dealt with under this Act accordingly."

This section has relevance to the concepts of radical title and reversion to
the Crown which are discussed later in these reasons.

The other provision is s 203 which reads:

"Any person, not lawfully claiming under a subsisting lease or license or
otherwise under any Act relating to the occupation of Crown
land, who is found
occupying any Crown land or any reserve, or is found residing or erecting any
hut or building or depasturing stock
thereon, or clearing, digging up,
enclosing, or cultivating any part thereof, shall be liable to a penalty not
exceeding twenty pounds."

This provision was relied upon by the respondents as evidencing the exclusive
possession of a pastoral lessee. I shall return to
s 203 when dealing with
that question.

As already noted, the leases granted under the 1910 Act [189] were expressed to be for "pastoral purposes only".
"Pastoral purposes" is not defined in the Act nor are the grants of lease
specific
as to what the expression entails. Clearly it includes the raising of
livestock. It also includes things incidental thereto such
as establishing
fences, yards, bores, mills and accommodation for those engaged in relevant
activities. But the use to which the
land may be put is circumscribed by the
expression "pastoral purposes only"; the rights of the lessee are to be
determined accordingly.

The Land Act 1962

The second Holroyd lease, the one on which Drummond J focused, was
granted in pursuance of Pt VI Div 1 of the Land Act 1962-1974.

The 1962 Act is described in its long title as

"An Act to Consolidate and Amend the Law relating to the Alienation, Leasing
and Occupation of Crown Land."

With some transposition of words, the long titles of the 1910 and 1962 Acts are
the same. The definition of "Crown land" in the
1962 Act is the same as that
in the 1910 Act. The power to make grants and leases is virtually the same.
In the 1962 Act s 6(1)
empowers the Governor in Council, in the name of Her
Majesty, to "grant in fee-simple, or demise for a term of years or in
perpetuity,
or deal otherwise with any Crown land within Queensland".

Part III of the 1962 Act deals with Pastoral Tenures which it identifies as
pastoral leases, stud holdings (not found in the 1910
Act) and occupation
licenses. Occupation licenses are dealt with similarly in both Acts. Part III
Div 1 of the 1962 Act prescribes
the machinery whereby Crown land may be
declared open for pastoral lease. Section 49(1) identifies

"the following classes of tenure, namely:-

(a) pastoral holding; or

(b) pastoral development holding; or

These classes of pastoral lease are not defined. But s 49(1) provides that
land may be declared open for pastoral lease under pastoral
development holding
"only where the cost of developing the land will be abnormally high, and where
developmental conditions are imposed
calculated to improve the carrying
capacity and productivity of the land and to develop the public estate". A
preferential pastoral
holding carries an obligation of personal residence if
the notification so provided [190] .

Mention is made earlier in these reasons of the improvements and development
specified in the second Holroyd lease which is a pastoral
holding. While the
lease is not expressed to be for pastoral purposes only, no other activity is
authorised. The term of such a
pastoral lease is to be determined by the
Minister and may not exceed 30 years [191] .

By force of s 4(2), all leases granted under repealed Acts and subsisting at
the commencement of the 1962 Act "shall be deemed to
have been granted or
issued under the provisions of this Act relating to the tenure or class or mode
of a class of tenure hereunder
which is analogous thereto".

Before leaving this survey of the 1962 Act, two provisions should be
mentioned. In dealing with the 1910 Act mention was made of
s 135 which
provided that on the determination of a lease before the expiration of the
term, the land reverted to His Majesty and
became Crown land. That provision
has its counterpart in s 299(1) of the 1962 Act with, however, an additional
requirement that
the person in occupation give peaceful possession to the Land
Commissioner, "otherwise such person shall be a trespasser upon Crown
land" [192] .

The other provision was s 203 of the 1910 Act relating to persons on Crown
land, "not lawfully claiming under a subsisting lease
or license or otherwise
under any Act relating to the occupation of Crown land". It has its
counterpart in s 372 of the 1962 Act.

Leases: exclusive possession

The 1910 Act and the 1962 Act say little as to the rights conferred by a
pastoral lease. What of the lease itself? In each of
the leases with which
this appeal is concerned, the Crown "DO HEREBY ... DEMISE AND LEASE" the land
in question.

At the forefront of the respondents' case was the argument that an essential
feature of a lease is that it confers exclusive possession
on the lessee. In
their submission, it followed that the instruments, being pastoral leases,
conferred on the lessees exclusive
possession of the land. To pose the issue
in that way is to focus unduly on leasehold interests as known to the common
law and to
give insufficient recognition to the fact that the pastoral lease is
a creature of statute. Accordingly, the rights it confers and
the obligations
it imposes must be determined by reference to the applicable statutory
provisions. That is not to say that reference
to leasehold interests at common
law does not aid an understanding of these rights and obligations. But it must
not be allowed to
obscure the particular nature of a pastoral lease under the
relevant legislation. And it must not divert attention from the basic
question
whether the grant of a pastoral lease was so inconsistent with the existence of
native title rights that those rights must
be regarded as having been
extinguished. With those observations in mind, I turn to a consideration of
leasehold interests.

The headnote to Radaich v Smith [193]
reads:

" In determining whether an instrument creates a lease as opposed to a licence,
the decisive factor in favour of a lease is whether
the right which the
instrument confers is one to the exclusive possession of the premises for a
term."

Put that way, the point is not so much that a "lease" confers exclusive
possession; it is that the conferring of exclusive possession
is an indication
that the arrangement in question is a lease rather than, say, a licence [194] .

Radaich v Smith and many other cases in which the character of a lease
has been considered were decided in the context of commercial transactions,
often entered into against the background of legislation that controlled rents
and evictions. The factual background had generally
been a written contract,
described as a licence in order to avoid the operation of legislation. It is
in this context that the following
passage from the judgment of Windeyer J must
be considered [195] :
"What then is the fundamental right which a tenant has that distinguishes his
position from that of a licensee? It is an interest
in land as distinct from a
personal permission to enter the land and use it for some stipulated purpose or
purposes. And how is
it to be ascertained whether such an interest in land has
been given? By seeing whether the grantee was given a legal right of
exclusive possession of the land for a term or from year to year or for a
life or lives."

The particular context in which emphasis has been placed on exclusive
possession is further illustrated by Street v Mountford , where the
question was whether an agreement gave rise to a tenancy protected under the
Rent Acts (UK). Lord Templeman, with whom the other Law Lords agreed,
"gratefully adopt[ed] the logic and the language of Windeyer J" [196] for the purposes of determining whether as a result of
an agreement relating to residential accommodation the occupier was a lodger
or
a tenant. Neither Windeyer J nor Lord Templeman was speaking in a context
which throws light on the position of a "lessee" whose
rights depend on
statute. It is a mistake to apply what is said in these passages to the
present appeals unless it accords with
the relevant statute and has regard to
the presence on the land of the indigenous people.

The inconclusiveness for the present context of descriptive terms such as
lease and licence is illustrated by O'Keefe v Malone which concerned
licences granted under the Crown Lands Act 1889 (NSW). Lord Davey,
delivering the advice of the Privy Council, spoke of the need to examine the
rights actually conferred on
the grantee and said [197] :

"An exclusive and transferable licence to occupy land for a defined period is
not distinguishable from a demise, and in the legislative
language of the Land
Acts the words 'leased,' 'lease,' and 'lessee,' are frequently used as words of
a generic import, including
lands held under occupation licence, or the licence
or the holder thereof."

The point is that the rights and obligations of a person holding an interest
under the legislation involved in the present appeals
are not disposed of by
nomenclature. A closer examination is required. The looseness of terminology
in this area is further illustrated
by the term "mining lease" which, as used
in the Mining Act 1906 (NSW), was described by Windeyer J in Wade v
New South Wales Rutile Mining Co Pty Ltd 198 as "really a
sale by the Crown of minerals reserved to the Crown to be taken by the lessee
at a price payable over a period of years
as royalties" [199] .

Likewise, the question has arisen whether an arrangement described as a lease
may fall short of the grant of a right of exclusive
possession. It arose in
Goldsworthy Mining Ltd v Federal Commissioner of
Taxation 200 with respect to a dredging lease of an area
of sea-bed issued under the Land Act 1933 (WA). The respondent in that
case argued that reservations in favour of the Crown and others by way of
access for navigation,
and
the reservation of all minerals and petroleum showed
that there was no right of exclusive possession in the appellant. Mason
J
rejected
the argument, holding in effect that the reservations were explicable
by reason of the relationship of the sea-bed to
the navigable
channel which it
underlay. Indeed, his Honour thought that the very existence of access
reservations assumed a right
of exclusive
possession. It is clear that Mason J
found such a right in the terms of the overall arrangement, not simply in the
use of the expression
"demises and leases". A similar approach may be found in
Glenwood Lumber Company v Phillips where the Privy Council said [201] :

The instrument in question was a licence of land for the purpose of cutting
timber, granted pursuant to a Newfoundland statute.

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

There is a passage in the judgment of Brennan J in American Dairy Queen
(Q'ld) Pty Ltd v Blue Rio Pty Ltd [202]
which may seem to tell against some of the considerations just mentioned. His
Honour said of a lease by a trustee of land reserved
under The Land Act
1962-1981 (Q):

These remarks were made in a particular context, namely, whether a sublessee of
the land could assign its interest at common law.
The further sublease
proposed was an entirely commercial transaction. It did not involve the title
of the Crown. There is no comparison
with the situation in the present
appeals. Furthermore, examination of how pastoral leases came about in
Queensland and the more
basic question of tenures under Queensland law shows
that his Honour's observation cannot be transposed so as to throw light on the
position of native title rights. The same may be said of the observation of
Mason J in the same case [203] that the rule
that courts will construe a statute in accordance with common law principles
"applies to the principles of the common
law governing the creation and
disposition of rights of property".

Pastoral leases: exclusive possession ?

It is not surprising that the terminology of pastoral leases was employed by
the legislature. And it is important to bear in mind
that although the second
Holroyd lease was granted in 1975 (the Mitchellton leases in 1915 and 1919),
the regime under which all
the leases were granted was established before the
turn of the century and was itself part of the historical development of the
colony.
The regime is best understood by seeing what had preceded it, as
outlined earlier in these reasons.

It is apparent from a despatch from Sir George Gipps, transmitting the
Crown Lands unauthorized Occupation Act to the Secretary of State that
one of its aims was "for the purpose of putting a stop to the atrocities which
have been committed
both on them [the natives] and by them" [204] . Furthermore, under the Regulations made pursuant to
that Act a licence could be cancelled if the licensee was convicted "of any
malicious injury committed upon or against any aboriginal native or other
persons". The whole tenor of these provisions indicates
a contemplation that
Aborigines would be upon licensed lands.

The thrust of contemporary documents, in particular communications by the
Secretary of State, Earl Grey, to the Governor of New
South Wales make it clear
that Aborigines were not to be excluded from land under pastoral occupation [205] . In the first of these two despatches,
Earl Grey wrote of pastoral occupation:

"I think it essential that it should be generally understood that leases
granted for this purpose give the grantees only an exclusive
right of pasturage
for their cattle, and of cultivating such Land as they may require within the
large limits thus assigned to them,
but that these Leases are not intended to
deprive the Natives of their former right to hunt over these Districts, or to
wander over
them in search of subsistence, in the manner to which they have
been heretofore accustomed, from the spontaneous produce of the soil
except
over land actually cultivated [or] fenced in for that purpose."

In the second, Earl Grey repeated his earlier view that the intention was "to
give only the exclusive right of pasturage in the runs,
not the exclusive
occupation of the Land, as against Natives using it for the ordinary
purposes".

The Queensland legislation aimed at giving pastoralists some security of
tenure in regard to their pastoral activities. The authorities
in England
expressed almost constant concern that the grant of pastoral leases should not
be used to prevent Aborigines from using
the land for subsistence purposes.
And a similar concern was expressed within Australia. Thus in his 1900 Annual
Report the Northern
Protector of Aboriginals, Walter Roth, warned against the
dispossession of blacks from their hunting-grounds and sources of water
supply
"by their lands being rented for grazing rights at a nominal figure". He
added:

"Carrying the present practice (might against right) to a logical conclusion,
it would simply mean that, were all the land in the
north to be thus leased,
all the blacks would be hunted into the sea." [206]
The Protector repeated his forebodings in his report of 1903 [207] .

Against this background, it is unlikely that the intention of the legislature
in authorising the grant of pastoral leases was to
confer possession on the
lessees to the exclusion of Aboriginal people even for their traditional rights
of hunting and gathering.
Nevertheless, "intention" in this context is not a
reference to the state of mind of the Crown or of the Crown's officers who, for
instance, made a grant of land. What is to be ascertained is the operation of
the statute and the "intention" to be discerned from
it [208] .

Some reference should be made to the authorities upon which the respondents
relied. In Macdonald v Tully the Full Court of the Supreme Court of
Queensland said of a plaintiff who had paid rent to the Crown and occupied and
stocked Crown
lands under The Tenders for Crown Lands Act 24 Vic No 12
(Q), though no formal lease had been granted to him [209] :

"This right of the plaintiff to occupy was, in our opinion, capable of being
maintained against any disturber, whether assuming to
disturb in virtue of an
alleged lease or otherwise."

But, despite the generality of the statement, it is clear that the Court was
directing its attention to the position of third parties
in the conventional
sense, not to Aborigines whose traditional land might fall within the lease.
The same may be said of the observation
of the Full Court in Wildash v
Brosnan [210] that a pastoral lessee had
an "exclusive right to the land".

Reference was made earlier in these reasons to s 203 of the 1910 Act and its
counterpart, s 372 of the 1962 Act. The respondents
contended that the effect
of the provision was to render a trespasser any person occupying Crown land who
was "not lawfully claiming
under a subsisting lease or license". This was said
to include Aborigines. The answer to this contention was given by Brennan J
in
Mabo [No 2] when dealing with s 91 of the Crown Lands Alienation
Act 1876 (Q), the predecessor of this provision. His Honour said [211] :

"To construe s 91 or similar provisions as applying to the Meriam people in
occupation of the Murray Islands would be truly barbarian.
Such provisions
should be construed as being directed to those who were or are in occupation
under colour of a Crown grant or without
any colour of right; they are not
directed to indigenous inhabitants who were or are in occupation of land by
right of their unextinguished
native title."

In the course of argument reference was made to the decision of this Court in
Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd [212] as pointing to exclusivity of possession on the part of
a holder of a pastoral lease. But this was a case in which one pastoral
company, relying on certain statutory provisions, claimed the right to take
travelling stock across the land comprised in a pastoral
lease held by another
pastoral company. The judgments turned on the language of the statutory
provisions. There was however a strong
dissent from Isaacs J who thought it
astonishing to hear it argued [213]

"that - while in the very act of liberalizing the conditions of pastoral
settlement in the more distant parts of the State on virgin
land ... the
Legislature of South Australia had deliberately adopted the suicidal and
inconsistent policy of making the passage of
healthy travelling stock, not only
always more difficult than it already was, but in a vast number of cases
impossible".

His Honour's judgment is lengthy, involving a detailed consideration of the
history of pastoral leases in South Australia. It is
apparent that his view of
the statutory provisions was influenced by that history which he regarded [214] as establishing that " the right of
owners of travelling stock to pass - a right more or less regulated, but
basically a right - over Crown lands, including lands let by the Crown for
pasturage, is part of the constant and traditional policy and law of South
Australia ".

While the appellants may find some support for their argument in the
dissenting judgment of Isaacs J, the decision itself turns
on statutory
language. Certainly, the decision offers no support for the proposition that
exclusivity of possession is a necessary
ingredient of a pastoral lease.

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

It follows that Question 1B(b) and Question 1C(b), which ask whether the
pastoral leases "confer rights to exclusive possession
on the lessee", must be
answered "No". As the questions are framed, the question of extinguishment
strictly does not then arise.
But for these reasons to be meaningful, one must
go on and consider to what extent the grant of a pastoral lease under the 1910
Act or 1962 Act necessarily extinguished native title rights.

That a concept of feudal tenure brought to Australia but subjected to change
through a complex system of rights and obligations
adapted to the physical,
social and economic conditions of the new colony, in particular the disposition
of large areas of land (often
unsurveyed) for a limited term for a limited
purpose, should determine the fate of the indigenous people is a conclusion not
lightly
to be reached. The continuance of native title rights of some sort is
consistent with the disposition of land through the pastoral
leases. I say "of
some sort" because there has been no finding by the Federal Court whether such
rights existed in respect of the
leased land and, if they did, the nature of
those rights. That is a matter to which I shall return.

Extinguishment

The idea of extinguishing title to land raises a number of questions,
particularly when the title said to have been extinguished
does not derive from
the common law but has been recognised by the common law. When land is
acquired by the Crown for the purposes
of public works, the title of the
registered proprietor is in truth extinguished by force of the notice of
acquisition or resumption.
The title vests in the Crown by force of statute
though registration may be required under the Torrens system. But that is
hardly
the situation here when what is contended is that the grant of a
pastoral lease of itself effected an extinguishment of native title
rights.

In Mabo [No 2] Brennan J said [215] :

" Sovereignty carries the power to create and to extinguish private rights and
interests in land within the Sovereign's territory.
It follows that, on a
change of sovereignty, rights and interests in land that may have been
indefeasible under the old regime become
liable to extinction by exercise of
the new sovereign power."

His Honour cited, in support of the initial proposition, Joint Tribal
Council of the Passamaquoddy Tribe v Morton 216 . There
are other authorities which assert or assume the power to extinguish
traditional title [217] . The general
proposition is not questioned by the appellants. And although fiduciary
obligations on the part of the State of Queensland
were asserted by the
appellants, it is unnecessary to pursue this aspect in order to deal with the
questions posed by the appeals.

Mason CJ and McHugh J agreed with the reasons for judgment of Brennan J.
Deane and Gaudron JJ said that, like other legal rights,

"the rights conferred by common law native title and the title itself can be
dealt with, expropriated or extinguished by valid Commonwealth,
State or
Territorial legislation" [218] .

I said that there is "precedent for the proposition that the Crown has power to
extinguish traditional title" [219] . But I
raised a number of questions. Is the power exercisable only with the consent
of the titleholders or is it exercisable unilaterally?
I added [220] :

"the plaintiffs did not contest the Crown's power to extinguish traditional
title by clear and plain legislation. That concession
was properly made,
subject to a consideration of the implications that arise in the case of
extinguishment without the consent of
the titleholders."

Later in his judgment Brennan J said [221] :

" However, the exercise of a power to extinguish native title must reveal a
clear and plain intention to do so, whether the action
be taken by the
Legislature or by the Executive."

The need for clarity of intention is spelled out in the judgments of other
members of the Court [222] .

In Western Australia v The Commonwealth ( Native Title Act Case )
the following passage appears [223] :

" After sovereignty is acquired, native title can be extinguished by a positive
act which is expressed to achieve that purpose generally
... provided the act
is valid and its effect is not qualified by a law which prevails over it or
over the law which authorises the
act. Again, after sovereignty is acquired,
native title to a particular parcel of land can be extinguished by the doing of
an act
that is inconsistent with the continued right of Aborigines to enjoy
native title to that parcel - for example, a grant by the Crown
of a parcel of
land in fee simple - provided the act is valid and its effect is not qualified
by a law which prevails over it or
over the law which authorises the act."

It is with the concept of inconsistency that these appeals are much
concerned.

During the hearing of these appeals attention focused on a passage in the
judgment of Brennan J in Mabo [No 2] where his Honour said [224] :

In this regard Deane and Gaudron JJ said:

" The personal rights conferred by common law native title ... are extinguished
by an unqualified grant of an inconsistent estate
in the land by the Crown,
such as a grant in fee or a lease conferring the right to exclusive
possession" [225] .

In the circumstances of the case, I held that whether the leases in question
were effective to extinguish traditional title was something
it was unnecessary
to answer [226] .

The recital in the preamble to the Native Title Act that

"The High Court has:

...

(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"

reads too much into the judgments in Mabo [No 2] so far as the reference
to leasehold estates is concerned unless particular attention is given to what
is meant by that term. At
their highest, the references are obiter. It has
been generally accepted that a grant of an estate in fee simple extinguishes
native
title rights since this is the largest estate known to the common law.

It is fair to comment that while there are passages in the judgments of the
Court dealing with the circumstances in which native
title may be extinguished,
no great attention has been focused on the idea itself. Hitherto it has not
been necessary to do so.
What is meant by extinguishment is alluded to by
Macfarlane JA in Delgamuukw v British Columbia when he said [227] :

" Before concluding that it was intended that an aboriginal right be
extinguished one must be satisfied that the intended consequences
of the
colonial legislation were such that the Indian interest in the land in
question, and the interest authorized by the legislation,
could not possibly
co-exist."

There is a further passage in the judgment of Macfarlane JA which strikes a
chord in the present appeals:

" It is clear that the mischief at which many of the Colonial Instruments was
directed was the agitation in the colony attendant
upon the influx and presence
of miners seeking gold. Governor Douglas needed authority to stabilize the
situation. A plan to attract
permanent settlers, and establish them on the
land was urgently required. The aboriginal peoples were not the problem. The
acquisition
of Indian lands was not the design, although attendant upon
settlement was the need to reconcile the conflicting interests of the
aboriginals and of the settlers. But the urgent question was settlement and
the establishment of British authority in the colony.
One should assume that
the object was to achieve the desired result with as little disruption as
possible, and without affecting
accrued rights and existing status any more
than was necessary." [228]

It is true that what is said in the judgments in Delgamuukw is against
a background of treaty making. Nevertheless the passage in the judgment of
Macfarlane JA is particularly apposite here.
In the course of his judgment
Lambert JA (who was in dissent as to the outcome of the appeal) distinguished
express (or explicit)
extinguishment and implicit extinguishment. As to the
latter he said [229] :

" Implicit extinguishment is extinguishment brought about by the
sovereign power acting legislatively in an enactment which does not provide in
its terms for
extinguishment but which brings into operation a legislative
scheme which is not only inconsistent with aboriginal title or aboriginal
rights but which makes it clear and plain by necessary implication that, to the
extent governed by the existence of the inconsistency,
the legislative scheme
was to prevail and the aboriginal title and aboriginal rights were to be
extinguished."

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

While the appellants accepted, as they were bound to do in light of Mabo
[No 2] [230] and the Native Title Act
Case [231] , that native title may be
extinguished, there is something curious in the notion that native title can
somehow suddenly cease to
exist, not by reason of a legislative declaration to
that effect but because of some limited dealing by the Crown with Crown land.
To say this is in no way to impugn the power of the Crown to deal with its
land. It is simply to ask what exactly is meant when
it is said that native
title to an area of land has been extinguished.

Inconsistency can only be determined, in the present context, by identifying
what native title rights in the system of rights and
interests upon which the
appellants rely are asserted in relation to the land contained in the pastoral
leases. This cannot be done
by some general statement; it must "focus
specifically on the traditions, customs and practices of the particular
aboriginal group
claiming the right" [232] .
Those rights are then measured against the rights conferred on the grantees of
the pastoral leases; to the extent of any inconsistency
the latter prevail. It
is apparent that at one end of the spectrum native title rights may "approach
the rights flowing from full
ownership at common law" [233] . On the other hand they may be an entitlement "to come
on to land for ceremonial purposes, all other rights in the land belonging
to
another group" [234] . Clearly there are
activities authorised, indeed in some cases required, by the grant of a
pastoral lease which are inconsistent
with native title rights that answer the
description in the penultimate sentence. They may or may not be inconsistent
with some
more limited right.

Thus the questions asked of the Federal Court, which assume the existence of
native title rights but say nothing as to their content,
produce an artificial
situation.

Radical title

Because of the course taken by the argument before the Court in the
present appeals, it is necessary to say something about radical
title, though
this matter was considered by the Court in Mabo [No 2] [235] . As is clear from the judgments in that case, a
consequence of sovereignty is the attribution of radical title to the Crown.
But
radical title does not of itself carry beneficial ownership. Brennan J
described it in these terms [236] :

"The radical title is a postulate of the doctrine of tenure and a concomitant
of sovereignty."

In Amodu Tijani v Secretary, Southern Nigeria the Privy Council, in a
judgment delivered by Viscount Haldane [237] ,
spoke of the title of the Sovereign as "a pure legal estate, to which
beneficial rights may or may not be attached".

From the distinction thus made, it is apparent that the grant of an estate in
land does not require the Crown to assume beneficial
ownership of the land.
Nor does the relevant legislation so dictate. As Brennan J observed in Mabo
[No 2] [238] :

"It is only the fallacy of equating sovereignty and beneficial ownership of
land that gives rise to the notion that native title
is extinguished by the
acquisition of sovereignty."

Later his Honour said [239] :

That the radical title lies with the Crown immediately before the grant of a
pastoral lease is clear. But how relevant is it to
speak of the Crown
acquiring the "reversion" in such a case and of the Crown's title becoming a
plenum dominium? It has been said [240] : "A
reversion is the interest which remains in a grantor who creates out of his
own estate a lesser estate" (emphasis added). In support of the foregoing
statement, the author quotes from Blackstone [241] :

"An estate in reversion is the residue of an estate left in the grantor,
to commence in possession after the determination of some particular estate
granted
out by him. ... For the fee-simple of all lands must abide somewhere;
and if he, who was before possessed of the whole, carves out
of it any smaller
estate, and grants it away, whatever is not so granted remains in him."

The doctrine of estates is a feudal concept in order to explain the interests
of those who held from the Crown, not the "title"
of the Crown itself. The
discussion of reversion in the standard texts invariably focuses on the holder
of an estate in fee simple
who grants some lesser estate, usually a life estate
or lease. But that is not the case here. The matter was explained by Brennan
J in Mabo [No 2] when he said [242] :

"Recognition of the radical title of the Crown is quite consistent with
recognition of native title to land, for the radical title,
without more, is
merely a logical postulate required to support the doctrine of tenure (when the
Crown has exercised its sovereign
power to grant an interest in land) and to
support the plenary title of the Crown (when the Crown has exercised its
sovereign power
to appropriate to itself ownership of parcels of land within
the Crown's territory)."

To speak, in relation to the Crown, of a reversion expectant on the expiry of
the term of a lease as expanding the Crown's radical
title to a plenum dominium
is, in my respectful view, to apply the concept of reversion to an unintended
end. To say this in no
way detracts from the doctrine of sovereignty; the
Crown may thereafter deal with the land as is authorised by statute, disposing
of it in some way or appropriating it to its own use [243] . Indeed it may deal with the land during the term to
the extent that it is authorised by statute or by the terms of the grant to
do
so. In the present case, once a pastoral lease came to an end, the land
answered the description of "Crown land" and might be
dealt with accordingly [244] . The invocation of reversion and plenum
dominium, as those expressions are usually understood, does not lie easily with
the position
of the Crown under the relevant statutes.

The proposition that it is the radical title of the Crown with which we are
concerned and that, on the expiration or other termination
of a pastoral lease,
it is still the radical title that must be considered in relation to native
title rights, does not minimise
the sovereignty of the Crown. Nor does it
undermine the principle that native title rights depend on their recognition by
the common
law. That recognition carries with it the power to extinguish those
rights. But it requires a very clear act to do so. To contend
that there is a
beneficial reversionary interest in the Crown which ensures that there is no
room for the recognition of native title
rights, is in my view, to read too
much into the Crown's title. Furthermore, if it is the reversion which carries
with it beneficial
title, why is that title not there in the first place? And
if it is the existence of that beneficial title which extinguishes native
title
rights, why were those rights not extinguished before the grant of a pastoral
lease? There is a curious paradox involved in
the proposition.

While nothing in the judgments of the Court, in particular those in Mabo
[No 2] , point with any certainty to the answers demanded of the Court in
the present proceedings, that decision is a valuable starting point
because it
explores the relationship between the common law and the "law" which evidences
native title rights. So far as the scope
of Mabo [No 2] is concerned,
it should be noted that in their joint judgment Mason CJ and McHugh J, with the
authority of the other members of the
Court constituting the majority, said [245] :

"The formal order to be made by the Court ... is 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 in ... the formal order."

This simply reinforces the proposition that while the judgments in Mabo [No
2] are significant for an understanding of the issues in the present
appeals, they do not determine their outcome.

Non-entry into possession

The lessees of the Mitchellton leases did not go into possession. Council for
the Thayorre People relied upon this point of distinction
with the Holroyd
lease to argue that the Mitchellton leases vested in interest but never in
possession.

The argument was in part that if the concept of feudal tenures applied to
pastoral leases, the Crown did not acquire a reversion
expectant necessary for
the plenum dominium required to extinguish native title rights. The feudal
principle was expressed in Coke on Littleton in the following manner [246] :

"For before entry the lessee hath but interesse termini , an interest of
a terme, and no possession, and therefore a release which enures by way of
enlarging of an estate cannot worke without
a possession, for before possession
there is no reversion".

Although the rule has been abolished in all States of Australia, including
Queensland [247] , it occasionally rears its
head [248] . However the earlier existence of
the rule does not advance the argument of the Thayorre People. Section 6(2) of
the Land Act 1910, under which the Mitchellton leases were granted,
declares the leases to be "valid and effectual to convey to and vest in the
person therein named the land therein described for the estate or interest
therein stated". It follows that execution of the leases
in question was
sufficient to vest in the lessees a grant in accordance with the statute.

Extinguishment revisited

Undue emphasis on the term extinguishment tends to obscure what is at the
heart of this issue. It is too simplistic to regard the
grant by the Crown of
a limited interest in land as necessarily extinguishing native title rights.
It is a large step indeed to conclude
that, because there has been a grant of a
"lease" of many square miles for pastoral purposes, all rights and interests of
indigenous
people in regard to the land were intended thereby to be brought to
an end. Where is the necessary implication of a clear and plain
intention?
The impact of such a conclusion was addressed by Lee J in North
Ganalanja when he said [249] :

"It may be thought to be a bold proposition that the grant of a statutory right
to take possession of a vast area of leasehold land
to depasture stock, being
an area which included land to which an organised social group of indigenous
inhabitants resorted as of
right for usufructuary or cultural purposes,
demonstrated a clear and plain intention by the Crown to extinguish those
rights when
the interest granted to the pastoral tenant by the Crown was
subject to various derogations including the right of the Crown to recover
the
demised property by resumption or reservation, and rights of access and
possession vested by the Crown in third parties, the
exercise of which, in most
cases, was likely to cause as much disturbance to the pastoral tenant's
enjoyment of possession as the
use of native title rights by indigenous
inhabitants."

Because I have concluded that none of the grants necessarily extinguished "all
incidents of Aboriginal title", no further question
arises in these appeals as
to any concept of the suspension of native title rights during the currency of
the grants. I express
no view on that matter.

The claims against Queensland, Comalco
and Aluminium Pechiney

These claims, mentioned at the outset of these reasons, are the subject of
Questions 4 and 5. They raise discrete issues from the
earlier questions.

I would answer each of those questions "No", for the reasons given by Kirby J
which I gladly adopt.
Answering the questions

As I said early in these reasons, the Court made it clear that it proposed to
deal only with the particular questions asked.

Questions 1A and 1B are not happily framed, with their emphasis on whether the
grant of each pastoral lease "necessarily" extinguished
"all incidents of
Aboriginal title" of the Wik Peoples and the Thayorre People, an aspect that
only arises if in each case the pastoral
lease conferred "rights to exclusive
possession on the grantee". The questions reduce to straightforward
propositions what are in
truth complex issues of law and of fact. They look
for a certainty in the answers which, in the circumstances of the present
appeals,
is a mirage. There have been no findings as to whether native title
rights even exist in connection with the land, let alone the
content of any
such rights. It is apparent from these reasons that I am of the opinion that
none of the grants the subject of the
appeals "necessarily" extinguished all
incidents of aboriginal title. However, Questions 1B and 1C cannot be answered
in the form
asked because I am also of the opinion that the pastoral leases did
not confer exclusive possession on the grantees especially in
the sense of
excluding all holders of native title rights, the existence and nature of which
have not even been canvassed. Indeed,
the questions framed by reference to
"exclusive possession" tend to obscure what is the critical question, that of
extinguishment.
Nevertheless, the questions should be answered as best they
can.

As to Question 1B(a), the Wik Peoples did not press a challenge to Drummond
J's answer. While the Thayorre People did not abandon
their challenge to
Drummond J's answer to Question 1C(a), they made no submissions in support of
that challenge. I am content to
adopt Gaudron J's reasons for dismissing the
appeal on this point.

In the light of these reasons for judgment, I would answer the questions as
follows:

Question 1B

(b) No.

(d) Strictly does not arise but, in the light of these reasons, is properly
answered No.

Question 1C

(a) No.

(b) No.

(d) Strictly does not arise but, in the light of these reasons, is properly
answered No.

Question 4

No.

Question 5

No.

It follows that each appeal succeeds in part. The answers given by Drummond J
to Questions 1B(b), (c) and (d) and 1C(b), (c) and
(d) should be set aside and
the questions answered in accordance with these reasons. The Wik Peoples
should have their costs of
the appeal relating to Question 1B(b), (c) and (d),
to be paid by the respondents who opposed the orders sought in relation to that
question. The Wik Peoples should pay the respondents' costs relating to
Questions 4 and 5. The Wik Peoples and the Thayorre People
should have their
costs of the appeal relating to Question 1C(b), (c) and (d), to be paid by the
respondents who opposed the orders
sought in relation to that question. The
Thayorre People should pay the respondents' costs relating to Question 1C(a).
The matter
should be remitted to Drummond J with respect to the costs of the
proceedings below and generally.

Postscript

Before leaving this judgment, it is important that the significance of
the answers proposed should be properly understood. What
now follows is said
with the concurrence of Gaudron, Gummow and Kirby JJ who each answers the
questions in similar terms. The order
the Court makes will therefore reflect
those answers.

In these appeals the Court has been called upon to answer questions which, no
doubt, it was hoped would resolve all important issues
between the parties.
Having regard to the form of the questions framed for the purpose of the
proceedings in the Federal Court, that
has not proved possible.

To say that the pastoral leases in question did not confer rights to exclusive
possession on the grantees is in no way destructive
of the title of those
grantees. It is to recognise that the rights and obligations of each grantee
depend upon the terms of the
grant of the pastoral lease and upon the statute
which authorised it.

So far as the extinguishment of native title rights is concerned, the answer
given is that there was no necessary extinguishment
of those rights by reason
of the grant of pastoral leases under the Acts in question. Whether there was
extinguishment can only
be determined by reference to such particular rights
and interests as may be asserted and established. If inconsistency is held
to
exist between the rights and interests conferred by native title and the rights
conferred under the statutory grants, those rights
and interests must yield, to
that extent, to the rights of the grantees. Once the conclusion is reached
that there is no necessary
extinguishment by reason of the grants, the
possibility of the existence of concurrent rights precludes any further
question arising
in the appeals as to the suspension of any native title rights
during the currency of the grants.

GAUDRON J.

Table of Contents Page

In June 1993, the Wik Peoples commenced proceedings in the Federal Court of
Australia against the State of Queensland, the Commonwealth
of Australia and
other respondents, including Comalco Aluminium Limited ("Comalco") and
Aluminium Pechiney Holdings Pty Ltd ("Pechiney").
They, the Wik Peoples,
claimed native title and possessory title rights over an area of land,
including tidal land, in far north
Queensland and over the adjoining sea. In
the alternative, they claimed damages and sought various forms of equitable
relief. Other
persons and bodies, including pastoralists, the Aboriginal and
Torres Strait Islander Commission and the Thayorre People, were later
joined as
additional respondents.

The Thayorre People claim native title over part of the land the subject of
the Wik claim. When joined to the proceedings instituted
by the Wik Peoples,
the Thayorre People cross-claimed against the State of Queensland and others,
including the Pormpuraaw Aboriginal
Council which, as trustee, holds part of
the land which they, the Thayorre, claim.

The Native Title Act 1993 (Cth) came into force on 1 January 1994. The
Wik Peoples then made a claim under that Act but procedural rulings were made
by Drummond
J for the hearing and determination of certain issues in the
Federal Court proceedings which, it was thought, might resolve the major,
if
not all, issues in the Federal Court proceedings as well as those in the claim
under the Native Title Act . In the result, five questions were raised
for determination as preliminary questions of law, the first question
containing three
sub-questions, 1A, 1B and 1C.

It will later be necessary to refer in some detail to some of the questions
raised for determination as preliminary issues. For
the moment it is
sufficient to note that, at first instance, Drummond J declined to answer one
of those questions, Q 2, but answered
the others in a manner adverse to the
interests of the Wik and the Thayorre Peoples [250] . The Wik and Thayorre Peoples (together referred to as
"the appellants") were each granted leave to appeal to the Full Federal Court
and, in due course, their appeals were removed into this Court pursuant to s 40
of the Judiciary Act 1903 (Cth).

The issues in the Appeal

The notice of appeal filed on behalf of the Wik Peoples was amended in various
respects and, as a result, there is no longer any
challenge to the answers
given by Drummond J to questions 1A and 3. Question 1A was designed to
determine whether, as a matter of
State constitutional law, the legislative
power of the Queensland Parliament is limited in such a way that it does not
extend to
laws extinguishing or impairing native title rights. Question 3 was
designed to determine whether, assuming their previous existence,
native title
rights to minerals and petroleum were extinguished by the enactment of general
legislation reserving or vesting minerals
and petroleum in the Crown.

The result of the amendments to the notice of appeal filed on behalf of the
Wik Peoples is that they challenge the correctness of
the answers given by
Drummond J to parts of questions 1B and 1C and, also, to questions 4 and 5.
The Thayorre People only challenge
the answer to question 1C; and they alone
challenge the answer to question 1C(a). That sub-question is directed to
ascertaining
whether native title rights are constitutionally protected by
reason of undertakings given by colonial authorities in the mid-nineteenth
century. No argument was addressed to that question in this Court.

The major issue in the appeal arises by reference to questions 1B(b), (c) and
(d) and 1C(b), (c) and (d). Those sub-questions are
directed to ascertaining
whether, as contended by the State of Queensland and the other respondents who
adopted the same position
in this Court [251]
(together referred to as "the respondents"), the grant of pastoral leases
pursuant to the Land Act 1910 (Q) [252] ("the 1910 Act") and the Land Act 1962 (Q) ("the
1962 Act") automatically extinguished native title rights. The sub-questions
proceed by reference to two leases granted
under the 1910 Act ("the Mitchellton
Pastoral Leases") and one granted under the 1962 Act ("the Holroyd Pastoral
Lease").

Questions 4 and 5 give rise to a separate and distinct issue, namely, whether,
as contended by the Wik Peoples, native title survived
separate agreements
between the State of Queensland and Comalco and Pechiney and the grant of
bauxite mining leases to those companies
in accordance with those agreements.

The claims by the Wik Peoples with respect to bauxite mining leases granted
to Comalco and Pechiney (Questions 4 and 5)

It is convenient to state at the outset that I agree with Kirby J, for the
reasons that his Honour gives, that Drummond J correctly
answered questions 4
and 5 against the interests of the Wik Peoples. Accordingly, to that extent
their appeal must be dismissed.
The arguments with respect to Pastoral Leases

As already mentioned, no argument was directed to question 1C(a). As to
questions 1B(b), (c) and (d) and 1C(b), (c) and (d), it
was argued for the
respondents in this Court and by the interveners who appeared in the same
interest [253] that pastoral leases granted
under the 1910 and 1962 Acts were true leases in the traditional common law
sense and, thus, conferred
rights of exclusive possession. Those rights,
according to the argument, are inconsistent with the continued existence of
native
title rights and, thus, necessarily extinguished them. On the other
hand, the appellants and the interveners and respondents appearing
in the same
interest [254] argued that pastoral leases
granted under those Acts were not true leases and did not confer rights of
exclusive possession, but
merely rights to use land for pastoral purposes.

By way of alternative, the appellants argued that, if pastoral leases did
confer rights of exclusive possession, native title rights
were not
extinguished because those rights were not exercised either pursuant to the
Mitchellton Pastoral Leases or the Holroyd Pastoral
Lease. The respondents and
supporting interveners replied to this contention by asserting that it was the
grant, not the exercise,
of a right of exclusive possession which operated to
extinguish native title rights. In this they were undoubtedly correct. As
Deane J and I pointed out in Mabo v Queensland [No 2] [255] , native title rights "are extinguished by an
unqualified grant of an inconsistent estate in the land by the Crown, such as a
grant in fee
or a lease conferring the right to exclusive possession" or other
inconsistent dealings with the land by the Crown.

The appellants also contended, by way of further alternative, that native
title rights revived on expiry, surrender or forfeiture.
The respondents and
interveners resisted this submission, arguing that, with the grant of a
pastoral lease, the Crown acquired the
interest in the reversion and its
radical title was thereby converted to full beneficial ownership. The
appellants, in turn, argued
that there was no reversion, in the sense for which
the respondents and supporting interveners contended.

Finally, the appellants argued that, if the Crown acquired the reversion and,
thus, full beneficial ownership by the grant of a
pastoral lease, the Crown
owed a fiduciary duty to, and, thus, held the reversion on trust for previous
native title holders.

Leaving aside the question of trust, the arguments direct attention, in the
main, to the terms of the Mitchellton and Holroyd Pastoral
Leases and to the
terms of the 1910 and 1962 Acts.

The Mitchellton land

As the Mitchellton Pastoral Leases were granted before the Holroyd Pastoral
Lease, it is convenient to deal with them first. They
were granted under the
1910 Act and are the subject of separate claims by the Wik Peoples and the
Thayorre People. The land the
subject of these Pastoral Leases ("the
Mitchellton land") is located north of Normanton, in far north Queensland. It
covers an area
of 535 square miles, extending from the Mitchell River to the
Edward River in the north and west to the Gulf of Carpentaria. It
is in the
District of Cook which was opened up for occupation in 1866 [256] .

Dealings with the Mitchellton land

There were no dealings with the Mitchellton land by government authorities
until 1912. In that year, on 23 May, an occupation license [257] was granted to William Hutson for an area of "about 100
square miles". The license was expressed to extend "until 31 December [1912],
and thereafter from year to year, so long as the rent fixed from time to time
in terms of the [1910] Act [should] be punctually paid".
The license was
determinable in a number of specified events, including in the event that the
land was selected, leased, reserved
or sold under that Act. The license was
subsequently forfeited.

On 28 January 1915, an area of 535 square miles which included the land the
subject of the occupation license forfeited by William
Hutson was notified as
open for pastoral lease "in terms of section 40" of the 1910 Act [258] . It was granted to Alfred Joseph Smith,
Thomas Alexander Simpson and Marshall Stanley Woodhouse for a term of 30 years
from 1 April
of that year ("the first Mitchellton lease") [259] . The lease was forfeited in 1918 for failure to pay
rent [260] . It was accepted by Drummond J at
first instance that the lessees never entered into possession [261] .

The Mitchellton land was again notified as open for lease on 23 August 1918 [262] . On 14 February 1919, it was granted to
Walter Sydney Hood for a term of 30 years from 1 January 1919 ("the second
Mitchellton lease").
That same year, on 9 September, he transferred his
interest to Byrimine Pastoral Properties Limited ("the company"). The company
surrendered the lease pursuant to s 122 of the 1910 Act on 12 October 1921.
Again it was accepted by Drummond J that neither Mr Hood
nor the company
entered into possession [263] .

Shortly before the surrender of the second Mitchellton Lease, the Chief
Protector of Aboriginals wrote to the Under Secretary, Home
Secretary's
Department, informing him that there were "about 300 natives roaming on [the]
country" and complaining that there had
been no consultation with his
Department with respect to the lease. He also noted that there was "a
suggestion that the [c]ompany
[might] allow the lease to lapse" and urged that,
if it did, his Department should be consulted before anyone else was allowed to
obtain possession. Whether in consequence of this letter or otherwise, the
Mitchellton land was temporarily reserved for the use
of Aborigines on 12
January 1922 [264] and permanently reserved
for that purpose on 7 May 1930 [265] .
Although its precise status has changed from time to time, it has apparently
been held for and on behalf of Aboriginal people ever
since. And at least some
of it is now part of the land held in trust by the Pormpuraaw Aboriginal
Council.

The question asked concerning the Mitchellton Pastoral Leases (Q 1C)

The question which Drummond J asked concerning the Mitchellton Pastoral Leases
(Q 1C) is as follows [266] :

"If at any material time Aboriginal title or possessory title existed in
respect of the land demised under the pastoral leases in
respect of the
Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No
2540 ... (Mitchellton Pastoral Leases):

(a) was either of the Mitchellton Pastoral Leases subject to a reservation in
favour of the Thayorre People and their predecessors
in title of any rights or
interests which might comprise such Aboriginal title or possessory title which
existed before the New South Wales Constitution Act 1855 (Imp) took
effect in the Colony of New South Wales?

(b) did either of the Mitchellton Pastoral Leases confer rights to exclusive
possession on the grantee?

If the answer to (a) is "no" and the answer to (b) is "yes":

(d) did the grant of either of the Mitchellton Pastoral Leases necessarily
extinguish all incidents of Aboriginal title or possessory
title of the
Thayorre People in respect of the land demised under either of the Mitchellton
Pastoral Leases?"
Drummond J answered that question [267] :

"as to question 1C(a): No;
as to question 1C(b): Yes - both did;
as to question 1C(c): Yes;
as to question 1C(d): Yes - the grant of the first of these leases extinguished
Aboriginal title."

It is common ground that, in the proceedings before Drummond J, no argument was
directed to the question whether possessory title
was necessarily extinguished
by the grant of the Mitchellton Pastoral Leases and that the answer to Q 1C(d)
does not cover that issue [268] .

The terms of the Mitchellton Pastoral Leases

Each of the first and second Mitchellton Leases was expressed to operate as a
"Demise and Lease". The persons to whom they were
granted were described as
entitled to a lease "in pursuance of Part III, Division I of the [1910] Act"
and together with their successors
were designated as "the Lessee". In each
case, the "Demise and Lease" was expressed to be made in consideration of a
specified sum
"paid for a full year's rent and of the rent [t]hereby reserved".
In each case it was granted for "pastoral purposes only". And
in each case,
the grant was expressed to be "subject to the conditions and provisoes in Part
III, Division I of the [1910] Act",
all other rights, conditions and
restrictions contained in that Act and, also, the Mining on Private Land Act
1909 (Q). The second Mitchellton Lease was also made subject to The
Petroleum Act 1915 (Q).

There were two express reservations of access in the Mitchellton Pastoral
Leases. The first was a reservation of access for the
purpose of searching for
or working gold and minerals and, in the case of the second Mitchellton Lease,
petroleum. The second, which
was in identical terms in both leases, was a
reservation of "the right of any person duly authorised in that behalf by the
Governor
of Our said State in Council at all times to go upon the said Land, or
any part thereof, for any purpose whatsoever, or to make any
survey,
inspection, or examination of the same".
Early Queensland land law

It is convenient, before turning to the provisions of the 1910 Act, to note
some aspects of the early development of Queensland
land law. That account
must begin with the early law of the Colony of New South Wales which, at first,
included the area that is
now Queensland.

On settlement, there was introduced to the Colony of New South Wales, "by the
silent operation of constitutional principles" [269] , that English law "applicable to the condition of an
infant Colony", but not "artificial requirements and distinctions ... [which
were] neither necessary nor convenient" [270] . And perhaps, "as the population, wealth, and commerce
of the Colony increase[d], many rules and principles of English law, which
were
unsuitable in its infancy, [were] gradually ... attracted" [271] .

It was held by the Privy Council, in Cooper v Stuart [272] , in application of the principles to which
reference has just been made, that "[t]here was no land law or tenure existing
in the Colony
[of New South Wales] at the time of its annexation to the Crown;
and, in that condition of matters ... as colonial land became the
subject of
settlement and commerce, all transactions in relation to it were governed by
English law, in so far as that law could
be justly and conveniently applied to
them." [273]

As pointed out by Drummond J at first instance, land in the Colony of New
South Wales was initially disposed of by the Governor
in the exercise of
prerogative power [274] . Thus, for example,
the commission of 2 April 1787 issued to Governor Phillip conferred "full power
and authority to agree for such
lands tenements and hereditaments as shall be
in Our power to dispose of and grant to any person or persons upon such terms
and under
such moderate quit rents services and acknowledgments to be thereupon
reserved unto Us according to such instructions as shall be
given to you under
Our Sign Manual" [275] .

The prerogative power to dispose of land gave way to a power conferred by
statute with the passage of the Sale of Waste Lands Act 1842 (Imp) [276] . Section 2 of that Act provided that the
waste lands of the Crown in the Australian colonies were not to be alienated by
the Crown
either in fee simple or for any less estate or interest otherwise
than by sale conducted in accordance with the regulations made
under the Act.
That Act was amended by the Sale of Waste Lands Act Amendment Act 1846
(Imp) [277] which provided, amongst other
things, for the making of rules and regulations by Orders-in-Council [278] .

Prior to 1847, most land was alienated by the grant of an estate in fee
simple [279] . Following the enactment of the
Sale of Waste Lands Act Amendment Act 1846 (Imp), there issued an
Order-in-Council of 9 March 1847 making distinct provision with respect to
pastoral leases [280] . The Order-in-Council
classified lands in the Colony as "Settled Districts" [281] , "Intermediate Districts" [282] or "Unsettled Districts" [283] and, within those areas, pastoral leases might be
granted for one year, eight years or fourteen years respectively [284] .

Apart from the use of the word "lease", there was nothing in the
Order-in-Council of 9 March 1847 to indicate the estate or interest
intended to
be conferred by the grant of a pastoral lease. However, some indication
appears from correspondence between the Secretary
of State, Earl Grey and the
Governor of New South Wales, Sir Charles A FitzRoy, discussing the concern that
pastoral lessees might
abuse their position with respect to Aborigines who had
traditionally used the land [285] . That
correspondence culminated in a despatch accompanying an Order-in-Council of 18
July 1849 [286] permitting the insertion in
pastoral leases of conditions appropriate for "securing the peaceable and
effectual occupation of the
lands comprised in such leases, and for preventing
the abuses and inconveniences incident thereto". In that despatch Earl Grey
wrote [287] :

"Comparing the terms of the [ Sale of Waste Lands Act Amendment Act 1846
(Imp)] Sections 1 and 6, with those of the Order in Council of 9th March 1847,
there can, I apprehend, be little doubt that the
intention of Government was,
as I pointed out in my Despatch of 11th February last, to give only the
exclusive right of pasturage
in the runs, not the exclusive occup[a]tion of the
Land, as against Natives using it for the ordinary purposes: nor was it meant
that the Public should be prevented from the exercise, in those Lands, of such
rights as it is important for the general welfare
to preserve, and which can be
exercised without interference with the substantial enjoyment by the lessee of
that which his lease
was really intended to convey."

There is also a minute to the same effect on an earlier despatch of 11 October
1848 [288] in which it is recorded:

"But it must also be considered what ought to be done in order to secure what
is due to the natives as regards lands already leased
for 14 years [under the
Sale of Waste Lands Act Amendment Act 1846 (Imp)]. The introduct[io]n
of a condit[io]n into these leases is now impracticable, but I apprehend that
it may fairly be assumed
that HM did not intend and [gave] no power by these
leases to exclude the natives from the [use] they had been accustomed to make
of these unimproved [lan]ds and the quest[io]n arises whether some
declarat[io]n to that [effect] sh[oul]d not be introduced into
the [O in C]?"

No declaration of that kind found its way into the Order-in-Council which
eventually issued.

The position with respect to the sale and disposal of land changed
significantly with the conferral of self government on the Colony
of New South
Wales, it being provided in s 2 of the New South Wales Constitution Act
1855 (Imp) [289] that "the entire
Management and Control of the Waste Lands belonging to the Crown in the said
Colony ... shall be vested in the legislature
of the said Colony". That
constitutional provision was subject to a number of provisoes, only the second
of which is presently relevant.
By that proviso, "nothing [t]herein contained
[was to] affect or be construed to affect any Contract or to prevent the
Fulfilment
of any Promise or Engagement made by or on behalf of Her Majesty,
with respect to any Lands situate in the ... Colony". It is that
proviso which
lies at the heart of question 1C(a).

The New South Wales Constitution Act 1855 (Imp) also provided,
in s 7, for the establishment of a separate colony or colonies by the
alteration of the Colony's northern border [290] . Letters Patent were issued pursuant to that section
establishing Queensland as a separate colony in 1859 [291] . The Letters Patent conferred on the Governor of
Queensland, in cl 5, "full power and authority, by and with the advice of the
...
Executive Council, to grant ... any waste or unsettled lands in ... [the]
colony ... provided ... that in granting and disposing
of such lands [he] ...
conform[ed] to and observe[d] the provisions in that behalf contained in any
law ... in force within ... [the]
colony". There were various statutes,
including the Pastoral Leases Act 1863 (Q) which, from time to time,
governed the exercise of that power [292] .
Again, apart from the use of the word "lease", neither that latter Act nor any
other Acts making provision with respect to pastoral
leases indicated the
estate or interest intended to be granted by a lease of that kind.

With the enactment of the Queensland Constitution Act 1867 (Imp) [293] , the position with respect to waste lands
in that Colony was brought into line with that provided for in New South Wales
by the New South Wales Constitution Act 1855 (Imp). Thus, it was
provided by s 40 of the Queensland Constitution Act 1867 (Imp) that,
subject to certain provisoes, "[t]he entire management and control of the waste
lands belonging to the Crown ...
[should] be vested in the Legislature of the
... colony". Again, it is necessary to mention only one proviso, namely, a
proviso
in the same terms as that in the New South Wales Constitution
Act 1855 (Imp) relating to previous contracts, promises and engagements.
That proviso supplanted the proviso to the same effect in the
New South
Wales Constitution Act 1855 (Imp) which, until then, had been part of the
law of Queensland [294] .
The power conferred by s 40 of the Queensland Constitution Act 1867
(Imp) was exercised with the enactment of the Crown Lands Alienation Act
1868 (Q) which provided, amongst other things, for the selection of first
and second class pastoral lands and the grant of pastoral
leases [295] . Shortly afterwards there was enacted
the Pastoral Leases Act 1869 (Q) [296]
which was concerned with land in unsettled districts. There followed a number
of other legislative measures prior to the enactment
of the 1910 Act [297] . Again, apart from the use of the word
"lease", none of these measures provides any indication as to the nature of the
estate or
interest created by the grant of a pastoral lease.

Reservation in favour of Native Title Rights (Q 1C(a))

As already mentioned, no argument was put in this Court with respect to the
answer to question 1C(a). However, the notice of appeal
filed on behalf of the
Thayorre People challenges the answer given by Drummond J. Accordingly, the
issue raised by that sub-question
must be considered.

At first instance, the contention with respect to the issue raised by question
1C(a) was that the despatches between Earl Grey and
Sir Charles FitzRoy with
respect to Orders-in-Council made following the Sale of Waste Lands Act
Amendment Act 1846 (Imp), to which reference has already been made,
contained promises or engagements for the preservation of native title rights [298] . According to the argument, they
constituted promises or engagements for the purposes of the second proviso to s
2 of the New South Wales Constitution Act 1855 (Imp) which vested the
management and control of waste lands in the legislature of New South Wales.
And, as earlier noted, that
proviso continued in effect in Queensland until
supplanted by a proviso in the same terms in the Queensland Constitution Act
1867 (Imp).

Drummond J rejected the contention with respect to the proviso to s 2 of the
New South Wales Constitution Act 1855 (Imp), holding that it did "not
encompass undertakings to preserve native title rights ... but only
undertakings to grant interests
in Crown lands made before the [ Sale of
Waste Lands Act 1842] came into force, which undertakings had not been
carried into effect or completed by issue of a formal deed of grant when the
[ New South Wales Constitution Act 1855 (Imp)] came into effect" [299] .

It is unnecessary to consider the detailed history by which Drummond J came to
the conclusion that the proviso was confined to undertakings
made before the
Sale of Waste Lands Act 1842 came into force. It is sufficient to
observe that it operated in a legislative context concerned with the management
and control
of the waste lands of the Crown. In that context, the proviso is
properly to be seen as directed to undertakings with respect to
the disposal of
waste lands, and, perhaps, their reservation for public purposes, both of which
fell within the contemplation of
the enacted legislation, not undertakings with
respect to the preservation of native title rights which fell outside the
operation
of any legislation then existing. It follows that, to the extent
that it challenges the correctness of the answer to question 1C(a),
the appeal
of the Thayorre People must be dismissed.

General provisions of the 1910 Act bearing on Pastoral Leases

The 1910 Act was in force when each of the Mitchellton leases was granted and
remained in force until after the second Mitchellton
lease was forfeited in
1921. It was amended in 1916 [300] , 1917 [301] , 1918 [302] and 1920 [303] .
These amendments are not directly relevant to the nature of the interest taken
under the Mitchellton Pastoral Leases and it is thus
convenient to refer to the
1910 Act in its unamended form. However, it should be noted that the 1916
amendments introduced a different
kind of pastoral lease, namely, a
preferential pastoral lease which was subject to a condition of personal
residence during the first
seven years of its term [304] .

Sub-section (1) of s 6 of the 1910 Act provided, subject to that Act, for the
Governor to "grant in fee-simple, or demise for a
term of years, any Crown land
within Queensland". "Crown land" was defined in s 4 of the Act as:

" All land in Queensland, except land which is, for the time being -
(a) Lawfully granted or contracted to be granted in fee-simple by the Crown;
or
(b) Reserved for or dedicated to public purposes; or
(c) Subject to any lease or license lawfully granted by the Crown: Provided
that land held under an occupation license shall be
deemed to be Crown land".

"Occupation license" was also defined [305] .
In essence, an "occupation license" was a license to occupy land for pastoral
purposes, expiring on 31 December of each year [306] . There was no definition of "demise", "lease" or
"license". "Lessee" was defined merely as "[t]he holder of a lease under [the]
Act" [307] .

By s 6(2) of the Act, it was provided that:

"The grant or lease [of Crown land within Queensland] shall be made subject to
such reservations and conditions as are authorised
or prescribed by this Act or
any other Act, and shall be made in the prescribed form, and being so made
shall be valid and effectual
to convey to and vest in the person therein named
the land therein described for the estate or interest therein stated."

The Mitchellton Pastoral Leases were both in the prescribed form, which form
provided for reservations in the terms incorporated
in those Leases [308] .
The Act provided for the grant of pastoral leases and for the grant of leases
of various agricultural selections, including "Perpetual
Lease Selection[s]",
the latter of which were, by s 104(1), described as "lease[s] in perpetuity".
It also provided for licenses
to occupy pastoral land [309] and licenses to occupy selections [310] , the latter being licenses which operated pending the
grant of a lease. As well, the Act provided for the surrender of any holding
on one year's notice in writing or on payment of one year's rent in advance and
other moneys due in respect of the holding [311] . It also provided for forfeiture, including for
non-payment of rent [312] . It will later be
necessary to refer to some of these provisions in greater detail. For the
moment, their only significance is
to permit an understanding of s 135 which
provided:

" If the license or lease of any land is determined by forfeiture or other
cause before the expiration of the period or term for
which it was granted,
then, unless in any particular case other provision is made in that behalf by
this Act, the land shall revert
to His Majesty and become Crown land, and may
be dealt with under this Act accordingly."

There was no equivalent provision as to the situation obtaining on the expiry
of a pastoral lease. And prima facie, at least, s
135 appears to have provided
exhaustively as to the situation obtaining on forfeiture or early
determination.

Two other general provisions should be noted. Section 203 of the Act created
an offence of trespass on reserves and on Crown land
(which, by force of the
definition of "Crown land" in s 4, included pastoral land the subject of an
occupation license, but not land
which, in terms of s 6, had been "granted" or
"demised"). Section 203 was in these terms:

" Any person, not lawfully claiming under a subsisting lease or license or
otherwise under any Act relating to the occupation of
Crown land, who is found
occupying any Crown land or any reserve, or is found residing or erecting any
hut or building or depasturing
stock thereon, or clearing, digging up,
enclosing, or cultivating any part thereof, shall be liable to a penalty not
exceeding twenty
pounds."

A procedure was laid down by s 204 for the issue of warrants for the removal
of "any person [who was] in unlawful occupation of
any Crown land or any
reserve, or [was] in possession of any Crown land under colour of any lease or
license that [had] become forfeited".
And it was provided in the last
paragraph of that section that:

" A lessee or his manager or a licensee of any land from the Crown may in like
manner make a complaint against any person in unlawful
occupation of any part
of the land comprised in the lease or license, and the like proceedings shall
thereupon be had."

A provision in similar terms to s 203, namely, s 91 of the Crown Lands
Alienation Act 1876 (Q), was considered by Brennan J in Mabo v
Queensland [No 2] [313] . It was held in
that case that general words in a statute are not to be construed as
extinguishing native title rights unless that
intention is manifest, as
evidenced by the use of clear and unambiguous words to that effect [314] . In application of that principle,
Brennan J said in a passage which, in my view, is clearly correct, that s 91
and similar provisions
were "not directed to indigenous inhabitants who were or
are in occupation of land by right of their unextinguished native title" [315] . That statement is equally true of s
203.

Once it is accepted that s 203 did not render Aboriginal people trespassers on
their own land, it follows that s 204 did not, of
itself, render them
trespassers on land the subject of a pastoral lease. Rather, the question
whether their presence constituted
or, perhaps, was capable of constituting
"unlawful occupation", has to be determined by ascertaining the nature of the
rights conferred
by the lease in question.

Particular provisions of the 1910 Act relating to Pastoral Leases

Provision was made in the Act for procedures to be adopted for the grant of
pastoral and other land. It was provided in Pt III,
which was headed "Pastoral
Tenures", for the Minister to notify that land was "open for pastoral lease" [316] or "open for occupation under occupation
license" [317] . The nature of the land which
might be the subject of a pastoral lease or of an occupation license was
neither defined nor described.
However, some indication that the land was
generally remote from settled areas appears by contrasting the provisions of Pt
III with
those of Pt IV, which was headed "Selections". The latter provisions
allowed for the Minister to notify that "country land [was]
open for selection
either as surveyed land or as designed land" [318] , although an application for designed land could not be
approved until it was surveyed [319] .
"Surveyed land" was land which was surveyed with roads and reserves, whereas
"designed land" was land which was divided into portions
merely by markings on
maps or plans [320] . Further contrast may be
made with the provisions of Pt V, headed "Sales by Auction", which provided for
the Minister to notify
that town, suburban and country land was available for
sale as lots [321] .

Moreover, it is clear from s 43, which required the calculation of rent
according to the number of square miles, that pastoral leases
might be granted
for vast areas, many times exceeding that available for agricultural
selections. There were statutory limits as
to the areas of the different
selections for which the Act provided [322] .
However, they were expressed in acres, not square miles [323] .

Section 41 provided for the processing of applications for pastoral leases,
directing in sub-s (4) that "[t]he lease [should] be
issued to the successful
applicant and [should] commence on the quarter day next ensuing after the date
of acceptance of his application".
There was no provision dealing with
occupation or possession of pastoral land, the rights in that regard being left
to inference
from the word "lease", the expression "occupation license" and the
terms of s 204 which, as already mentioned, allowed that a lessee
or licensee
might take action for the removal of persons in "unlawful occupation". By
contrast, it was expressly provided by s 75
that, on the approval of a
settlement application and on payment of the sum required by the Act, the
applicant was entitled "to receive
... a license to occupy the land" and, by s
76(1), that "[f]rom and after the date of his license to occupy, the selector
may enter
upon the land and take possession thereof".

As appears from the terms of the Mitchellton Pastoral Leases, there were
certain conditions applicable to pastoral leases by virtue
of the provisions of
Pt III of the Act. By s 40, the Minister might declare in the opening
notification that land was open subject
to one or both of the conditions
specified in that section, namely, a condition that the land should be enclosed
and kept enclosed
with a rabbit-proof fence or a condition for the destruction
of noxious plants. Neither of the Mitchellton leases was subject to
either
condition.

There was one other condition imposed by Pt III Div 1, namely, a condition
with respect to the payment of an annual rent at the
rate for the time being
prescribed [324] . And as earlier indicated,
the rent was to be calculated according to the number of square miles comprised
in the lease. The word
"rent" was not used in a way that gives any clear
indication of the nature of the interest effected by leases authorised by the
Act
for the Act also required the payment of rent pursuant to licenses to
occupy pastoral land [325] and pursuant to
occupation licenses granted following approval of settlement applications [326] .

Again, as the terms of the Mitchellton Pastoral Leases indicate, the Act
provided with respect to "other rights ... conditions ...
[and] restrictions"
applicable to pastoral leases. Some were also applicable to other holdings.
There was a prohibition in s 198
on ringbarking, cutting and destruction of
trees. This condition applied to lessees of pastoral holdings, to holders of
occupation
licenses, and, also, to selectors of Agricultural, Prickly-pear and
Unconditional Selections. However, in the case of selections,
it applied only
during the first five years [327] .

Another restriction was to be found in ss 199 and 200. Section 199(1)
provided for the issue of licenses to persons "to enter upon
any Crown land, or
any pastoral holding, or any Grazing Selection, or any road or reserve, and to
cut, get, and remove timber, stone,
gravel, clay, guano, or other material, but
not, unless with the consent of the lessee, within two miles of the head
station of any
pastoral holding". The licenses were given further effect by s
200 which provided that, except to the extent that the Act permitted
otherwise,
"a lessee of a pastoral holding or the holder of a Grazing Selection [should]
not have power to restrict persons duly
authorised by law from cutting or
removing timber or material within his holding".

Section 205 was another provision of some importance. It allowed for a drover
or traveller riding or driving stock on a stock route
or road passing through a
pastoral holding or through land the subject of an occupation license to
depasture the stock on "any part
of the land which [was] within a distance of
half a mile from the road and [was] not part of an enclosed garden or paddock
under
cultivation, and which [was] not within a distance of one mile from the
principal homestead or head station".

The interest conferred by the Mitchellton Pastoral Leases

It is clear that pastoral leases are not the creations of the common law.
Rather, they derive from specific provision in the Order-in-Council
of 9 March
1847 issued pursuant to the Sale of Waste Lands Act Amendment Act 1846
(Imp) and, so far as is presently relevant, later became the subject of
legislation in New South Wales and Queensland [328] . That they are now and have for very many years been
entirely anchored in statute law appears from the cases which have considered
the legal character of holdings under legislation of the Australian States and,
earlier, the Australian Colonies authorising the
alienation of Crown Lands.
Thus, for example, it was said of such holdings in O'Keefe v Williams [329] that "[t]he mutual rights and
obligations of the Crown and the subject depend, of course, upon the terms of
the Statute under which
they arise".
O'Keefe v Williams is of particular interest because it was argued in
that case that occupation licenses under the Crown Lands Act 1884 (NSW)
and the Crown Lands Act 1895 (NSW) conferred "an absolute right to
possession as against all the world" with the consequence that there was no
necessity
to imply a right of quiet enjoyment [330] . The argument was disposed of on the basis that, "if
sound", it would negative an implied covenant for quiet enjoyment in leases
between subject and subject [331] . However,
that case does contain statements suggesting that the occupation licenses in
question conferred an exclusive right of
occupation [332] , a suggestion also made in O'Keefe v Malone [333] , an earlier case involving the same
licenses, and in Macdonald v Tully [334] , a case arising under the Tenders for Crown Lands
Act 1860 (Q).

It may be that in O'Keefe v Williams Griffiths CJ and Isaacs J both
used the expression, "exclusive right to occupy" as synonymous with the
expression "exclusive right
of possession" [335] . However, that is of little or no significance not
only because the case was concerned with different legislation but because
their
Honours proceeded on the view that the Privy Council had held in
O'Keefe v Malone that the occupation licenses in question were leases [336] . In truth, their Lordships held only
that a power to relieve against "the lapse or voidance of [a] contract ... for
the purchase
or leasing of Crown lands" extended to relieve against forfeiture
of the occupation licenses. And, perhaps, of some relevance to
this case,
their Lordships reached that conclusion because "the words `leased,' `lease,'
and `lessee,' [were] frequently used [in
the relevant legislation] as words of
a generic import, including lands held under occupation licence, or the licence
or the holder
thereof" [337] .

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

There are two features which point in favour of the view that the Mitchellton
Pastoral Leases were true leases in the traditional
common law sense and, thus,
conferred rights of exclusive possession. The first is the language of the Act
and of the Leases. In
this regard, the use of the words "demise", "lease" and
derivatives of the word "lease" in the statutory provisions concerned with
pastoral leases and in the Leases themselves, are to be noted. Similarly, it
is to be observed that s 6(1) of the Act speaks of
a "demise for a term of
years", "demise" being a word traditionally used to create a leasehold estate [338] . Moreover, the word "lease" and the
expression "demise for a terms of years" are used not only in relation to
pastoral leases, but
also in connection with agricultural holdings. However,
it will later appear that there is no sound basis for assuming that they
necessarily have the same meaning when used in relation to the various
different holdings permitted by the Act.

The second feature which points in favour of the view that pastoral leases
under the 1910 Act were true leases is that the 1910
Act clearly distinguished
between leases and licenses, thereby suggesting that it was maintaining the
traditional common law distinction
between a lease, which confers a right of
exclusive possession, and a license, which does not.

Ordinarily, words which have an established meaning at common law are
construed as having the same meaning in a statute unless there
is something in
the words or the subject-matter of the statute to indicate otherwise. This is
but an instance of the general rule
that statutes are not to be construed as
altering common law principles unless that is clearly intended. Thus, in
American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [339] , where the question arose whether the 1962 Act
precluded the right of a sub-lessee to transfer or mortgage its interest in a
lease
of an area reserved under Pt XI of that Act [340] , Mason J observed [341] :

" The general rule is that the courts will construe a statute in conformity
with the common law and will not attribute to it an intention
to alter common
law principles unless such an intention is manifested according to the true
construction of the statute ... This
rule certainly applies to the principles
of the common law governing the creation and disposition of rights of property.
Indeed,
there is some ground for thinking that the general rule has added force
in its application to common law principles respecting property
rights."

However, there are difficulties in applying that principle to the word "lease"
and the expression "demise for a term of years" in
the 1910 Act, even in a
context where a distinction is drawn between a lease and a license.

It is well settled that the question whether an instrument creates a lease or
a license is a question of substance not one of language [342] . It is also well settled that it is a question to be
answered, at least in the first instance, by asking whether the instrument
in
question confers a right of exclusive possession [343] . These principles of interpretation are equally
applicable in the construction of a statute concerned with a particular type of
holding not known, as such, to the common law, but devised to suit the peculiar
conditions of the Australian colonies. Thus, the
word "lease" and the
expression "demise for a term of years" cannot, of themselves, provide a basis
for holding that a pastoral lease
under the 1910 Act conferred a leasehold
estate, as understood by the common law and, thus, conferred a right of
exclusive possession.
Rather, the search must be for indications within the
Act that it was intended that pastoral leases should confer that right.

Because it is necessary to look for indications within the Act to ascertain
the estate or interest intended to be conferred by a
pastoral lease and,
indeed, by a lease of any of the holdings permitted by the 1910 Act, there is
no basis for assuming that "lease"
and "demise for a term of years" bear
precisely the same meaning when used in relation to each of those different
holdings. And
for that reason, also, it would be wrong to place over-much
reliance on the 1910 Act's apparent distinction between a lease and a
license.
Particularly is that so in a statutory context in which an occupation license
with respect to pastoral land may be readily
distinguishable from a pastoral
lease by reason of the short term nature of the license [344] .

Another difficulty with approaching the word "lease" and the expression
"demise for a term of years" in the 1910 Act as if they
bore their common law
meaning is that, whatever may be the position in other areas of the law, there
is no very secure basis for
thinking that pastoral leases owe anything to
common law concepts. As already indicated, pastoral leases are statutory
devices designed
to suit the peculiar conditions of the Australian colonies,
deriving from the Order-in-Council of 9 March 1847. And as has been
seen, the
common law was only applicable in the early days of the Colonies to the extent
that that was necessary or convenient.

In 1847, when pastoral leases were devised, the Colony of New South Wales had
been established for nearly sixty years. However,
there were vast areas which
had not then been opened up for settlement, including the land in issue in this
case. Even if pastoral
leases were devised with common law concepts in mind,
they were a novel concept and there is nothing to suggest that it was necessary
or convenient for them to conform precisely to the common law. More to the
point, perhaps, there is nothing to suggest that a right
of exclusive
possession was either a necessary or convenient feature of pastoral leases in
the conditions of the Colony of New South
Wales in 1847. And there is nothing
to suggest that subsequent statutory measures culminating in the 1910 Act
effected any significant
change with respect to the estate or interest which
they conferred.

A third difficulty with attributing the features of common law leases to the
holdings described as "pastoral leases" in the 1910
Act is that, at least in
one significant respect, the Act prescribes a quite different feature. As the
common law stood in Queensland
until 1975, a leasehold estate vested only on
entry into possession [345] . In contrast, s
6(2) of the Act provided that it was the making of a grant in the prescribed
form which operated to convey and vest
the interest thereby granted.

Finally, there is the difficulty of construing "lease" in the 1910 Act as the
equivalent of a lease at common law in a context in
which the Act clearly used
the word "lease" to refer to something quite foreign to the common law
conception of a lease. At common
law, a lease is normally a demise for a term
of years. However the 1910 Act authorised the grant of perpetual leases which,
as already
indicated, were expressed to be "leases in perpetuity", an
expression which is unknown to the common law and which cannot possibly
take
its meaning from it [346] .

Quite apart from the difficulties involved in approaching the provisions of
the 1910 Act on the basis that the word "lease" and
the expression "demise for
a term of years", of themselves, indicate that pastoral leases were true leases
in the traditional common
law sense, there were provisions in the Act
indicating that they were not. Certainly, there were indications that they did
not confer
a right of exclusive possession which, as already mentioned, is an
essential feature of a lease at common law.

The strongest indication that a pastoral lease granted under the 1910 Act did
not confer a right of exclusive possession is to be
found in those provisions
of the Act conferring rights on persons authorised in that behalf to enter upon
land the subject of a pastoral
lease to remove timber, stone, gravel, clay,
guano or other material [347] , denying the
lessee the right to ringbark, cut or destroy trees [348] and also denying the lessee power to restrict
authorised persons from cutting or removing timber or material within the
holding [349] . There is a similar indication
in the provision permitting others to depasture stock if a stock route or road
passed through the
holding [350] . And, of
course, there were the reservations in the Leases as required by the prescribed
form of lease. In particular, there were
the identical reservations in both
Leases of "the right of any person duly authorised in that behalf ... at all
times to go upon the said Land, or any part thereof, for any purpose
whatsoever , or to make any survey, inspection, or examination of the same"
(emphasis added).

There is another indication that a pastoral lease granted under the 1910 Act
did not confer a right of exclusive possession. In
contradistinction to the
express provision contained in s 76(1) of the 1910 Act with respect to persons
whose applications for agricultural
holdings had been approved, there was no
provision in the Act authorising a pastoral lessee to take possession of the
land the subject
of a lease. Rather, the only right expressly conferred on
pastoral lessees in that regard was that conferred by s 204 of the Act,
namely,
to take action for the removal of persons in "unlawful occupation". And, as
already explained, that provision did not, of
itself, confer a right of
exclusive possession.

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

Given that the words "lease" and the expression "demise for a term of years"
do not, of themselves, indicate that pastoral leases
granted pursuant to the
1910 Act conferred a right of exclusive possession and given, also, the
indications in the Act to the contrary,
the question whether they conferred
such a right is concluded in favour of the continued existence of native title
rights by application
of the rule of construction identified in Mabo [No
2] to which some reference has already been made [351] . That rule is that general legislation with respect to
waste lands or Crown land "is not to be construed, in the absence of clear
and
unambiguous words, as intended to apply in a way which will extinguish or
diminish rights under common law native title" [352] .

As Deane J and I explained in Mabo [No 2] the rule to which reference
has just been made is not a special rule with respect to native title; it is
simply a manifestation of
the general and well settled rule of statutory
construction which requires that "clear and unambiguous words be used before
there
will be imputed to the legislature an intent to expropriate or extinguish
valuable rights relating to property without fair compensation" [353] . Whether the rule be stated generally or by reference
to native title rights, it dictates the conclusion that, whilst the grant
of a
pastoral lease under the 1910 Act certainly conferred the right to occupy land
for pastoral purposes and s 204 conferred the
right to bring action for the
removal of persons in unlawful occupation, a pastoral lease did not operate to
extinguish or expropriate
native title rights, as would have been the case, had
it conferred a right of exclusive possession.

The Mitchellton Pastoral Leases: the Crown's "reversionary interest"

It follows from the conclusion that the grant of a pastoral lease under the
1910 Act did not confer a right to exclude native title
holders and, thus, did
not confer a right of exclusive possession that the Mitchellton Leases were not
true leases in the traditional
common law sense, and, thus, did not operate to
vest a leasehold estate. As a reversionary interest only arises on the vesting
of
a leasehold estate [354] , there is no
basis for the contention that, on the grant of the Mitchellton Leases, or, more
accurately, on the grant of the first
Mitchellton Lease, the Crown acquired a
reversionary interest, as that notion is understood by the common law, and its
radical title
was thereby expanded to full beneficial ownership.

Moreover, the provisions of the 1910 Act run counter to the notion that the
Crown acquired a reversionary interest of the kind for
which the respondents
contended. As already indicated, a reversionary interest arises on the vesting
of a leasehold estate, which,
prior to 1975 in Queensland, occurred on entry
into possession. However, s 6(2) of the 1910 Act operated to vest the estate
or interest
conferred by a grant under the Act, not on entry into possession,
but on the making of a grant in the prescribed form.

Furthermore, s 135 made provision for what may be called a statutory reversion
in the event of "determinat[ion] by forfeiture or
other cause before the
expiration of the period or term for which it was granted", specifying that in
that event it should "revert
to His Majesty and become Crown land", able to be
"dealt with under [the] Act accordingly". In the event of forfeiture or early
determination, the clear effect of s 135 was to assimilate the land involved to
land which had not been alienated, reserved or dedicated
for public purposes
and which, therefore, was "Crown land" as defined in s 4 of the Act. In other
words, the effect of s 135 was,
in that event, to assimilate the previously
alienated land to land in respect of which the Crown had radical title, and not
to land
in respect of which it had beneficial ownership.

The fact that in these two respects the 1910 Act proceeded on a basis which
was at odds with the common law principles with respect
to reversionary
interests tends to confirm the conclusion otherwise reached in the application
of ordinary principles of statutory
construction, namely, that the grant of a
pastoral lease under the 1910 Act did not confer a right of exclusive
possession.

Conclusion with respect to the Mitchellton Pastoral Leases: answer to
question 1C

The conclusion I have reached by application of ordinary principles of
statutory construction renders it unnecessary for me to consider
the
appellants' alternative arguments with respect to fiduciary duties. And it
follows from that conclusion that Drummond J was
in error in answering question
1C(b) as he did. Instead it should have been answered "No". So answered,
sub-questions 1C(c) and
(d) do not arise. However, in the light of these
reasons, I would answer sub-question 1C(d) "No".

The Holroyd land

The land the subject of the Holroyd Pastoral Lease ("the Holroyd land") is
also in the District of Cook. It is further north and
to the east of the
Mitchellton land and about 24 miles west of Coen. It covers an area of
approximately 1,120 square miles [355] or
2,830 square kilometres and extends north and east from the Holroyd River.

Dealings with the Holroyd land

The Holroyd land was declared open for pastoral lease on 8 June 1944 [356] . On 8 February 1945, Marie Stuart
Perkins was granted a "Lease of Pastoral Holding under Part III, Division I, of
the Land Acts,
1910 to 1943" for a term of 30 years from 1 October 1944 ("the
first Holroyd Lease"). It was the subject of a number of transfers.
During
the term of that lease, the 1910 Act was repealed and the 1962 Act enacted.

In 1972, the then lessees of the first Holroyd lease applied under s 155 of
the 1962 Act for a new lease of the Holroyd land. The
application was
approved, subject to the incorporation of certain conditions in the new lease.
On 31 December 1973, the first Holroyd
lease was surrendered and a second
lease, the Holroyd Pastoral Lease, was granted over the same land for a term of
thirty years from
1 January 1974. The 1962 Act was amended by the Land Act
Amendment Act 1986 (Q) and, pursuant to s 5 of that latter Act, the term of
the lease was extended by 20 years. In 1989 the lease was transferred
to the
present owners, members of the Shepherdson family.

The question asked concerning the Holroyd Pastoral Lease (Q 1B)

Save that it refers to the Holroyd Pastoral Lease, the question asked of the
Holroyd land, question 1B, is the same as question
1C, the question asked of
the Mitchellton Pastoral Leases. And save that his Honour was dealing with one
lease, not two, Drummond
J answered question 1B in the same manner as he
answered question 1C [357] .

Three matters should be noted with respect to the answers given by Drummond J
to question 1B. The first is that there is no longer
any challenge to his
Honour's answer to question 1B(a). The second is that it is common ground
that, as with the answer to question
1C(d), the answer to question 1B(d) does
not extend to possessory title. The third matter and the one that lies at the
heart of
these proceedings, as they affect the Holroyd land, is that, in
answering question 1B(b), his Honour held that the Holroyd Pastoral
Lease
conferred a right of exclusive possession. To determine whether that is so it
is necessary to analyse the terms of the Lease
and, also, the provisions of the
1962 Act which, like the 1910 Act, contained no express provision as to the
estate or interest conferred
by a pastoral lease.

The terms of the Holroyd Pastoral Lease

The Holroyd Pastoral Lease is expressed to be a "Lease of Pastoral Holding
under Part VI, Division I, of the Land Act 1962-1974".
It is in a form similar
to that of the Mitchellton Pastoral Leases. It recites that the grantees were
entitled to a lease of the
Holroyd land pursuant to Pt VI, Div I of the 1962
Act [358] . It is expressed to operate as a
"Demise and Lease" made in consideration of an amount "paid for a full year's
rent, and of the
rent [t]hereby reserved". It is not expressed to be granted
solely for pastoral purposes.

The Lease is expressly made subject to the conditions and provisoes in Pt III,
Div I of the 1962 Act and subject also to the Mining Act 1968-1974 (Q)
and the Petroleum Acts 1923 to 1967 (Q) and regulations made
under those three Acts. It contains reservations in similar terms to those in
the Mitchellton Pastoral
Leases, including a reservation of "the right of any
person duly authorised in that behalf by the Governor of Our said State in
Council
at all times to go upon the said Land, or any part thereof, for any
purpose whatsoever, or to make any survey, inspection, or examination
of the
same".

The Holroyd Pastoral Lease also contains the following special conditions:

" The Lessees shall within five (5) years from the date of the commencement of
the lease and to the satisfaction of the Minister:

(a) Construct Manager's residence, quarters for five (5) men and a shed
(machinery shed, store, workshop, etc);
(b) Construct an airstrip to Department of Civil Aviation standard for mail
service and flying doctor service;
(c) Erect ninety (90) miles of internal fencing;
(d) Erect 1 set of main yards and dip;
(e) Construct in the melonhole country three (3) earth dams of not less than
3,060 cubic metres (4,000 cubic yards) capacity each;
(f) Sow at least 40.5 hectares (100 acres) to Townsville Style as a seed
production area; and
(g) Enclose the holding with a good and substantial fence."

There is a further condition requiring that all improvements be maintained in
good repair during the term of the lease. These requirements
reflect the
conditions attached to the approval of the application for a new lease under s
155 of the 1962 Act.

Special conditions of the Holroyd Pastoral Lease

Some but not all of the special conditions of the Holroyd Pastoral Lease have
been satisfied. It is not clear whether, as permitted
by s 64(3) of the 1962
Act, the Minister formally exempted the lessees from compliance with the
condition as to boundary fencing.
However, it seems that, at the very least, a
decision has been made not to enforce it. Some seed has been sown, and some
internal
fencing, dams and mustering yards constructed, but, the mustering
yards are no longer usable and main yards and dip have not been
built. An
airstrip, machinery shed and toilet block have been constructed but, by
November 1988, work had not commenced either on
the manager's residence or on
the workmen's quarters. It was reported in that year that a house was to be
built within the next
12 months but the materials provided by the parties do
not disclose what, if anything, has happened since.

General provisions of the 1962 Act bearing on Pastoral Leases

The 1962 Act was amended from time to time and repealed in 1995 [359] . The amendments do not bear on the
question whether the Holroyd Pastoral Lease conferred a right of exclusive
possession. It is
therefore convenient to approach that question by reference
to the 1962 Act in its unamended form. The long title of that Act was
"An Act
to Consolidate and Amend the Law relating to the Alienation, Leasing and
Occupation of Crown Land" and it is not surprising,
therefore, that several of
its provisions are or are substantially to the same effect as those of the 1910
Act.

In terms only slightly different from those in the 1910 Act, s 6(1) of the
1962 Act authorised the Governor-in-Council, subject
to that latter Act, to
"grant in fee-simple, or demise for a term of years or in perpetuity, or deal
otherwise with any Crown land
within Queensland". "Crown land" was defined in
terms which were identical to those found in the 1910 Act [360] . By s 6(2) of the 1962 Act it was necessary that a
grant or lease be subject to the reservations and conditions authorised or
prescribed
by that or any other Act and that it be made in the prescribed form.
It was also provided in s 6(2) that, when so made, the grant
or lease was
"valid and effectual to convey to and vest in the person therein named the land
therein described for the estate or
interest therein stated". The Holroyd
Pastoral Lease is in the form prescribed as at the date of its grant, which
form provided
for reservations in the terms incorporated in the Lease [361] .

The Act provided for the grant of "occupation licenses" over pastoral land [362] , pastoral leases [363] , leases of stud holdings [364] and the sale and lease of various agricultural
holdings [365] . No relevant distinction is
to be drawn between occupation licenses granted under the 1910 Act and those
granted pursuant to the
1962 Act. However, the provisions of the 1962 Act with
respect to pastoral leases differ from those of the 1910 Act as it stood
when
the Mitchellton Pastoral Leases were granted for the reason, among others, that
provision was made for the grant of pastoral
leases under three different forms
of tenure, namely, pastoral holding, pastoral development holding and
preferential pastoral holding [366] . As
appears from its terms, the Holroyd Pastoral Lease is a lease of a pastoral
holding.

The chief difference between the lease of a pastoral holding and other
pastoral holdings under the 1962 Act is that additional conditions
attached to
leases of pastoral development holdings and preferential pastoral holdings. A
lease of a pastoral development holding
could only be granted if "the cost of
developing the land [would be] abnormally high, and [if] developmental
conditions [were] imposed
calculated to improve the carrying capacity and
productivity of the land and to develop the public estate" [367] . A preferential pastoral holding, like its counterpart
under the 1910 Act, was subject to a requirement of personal residence [368] . Similarly, on the conversion of a
pastoral holding to a stud holding, as permitted by s 66(1) of the 1962 Act [369] , the lessee came under an additional
obligation to provide the Minister with information with respect to the stud [370] and to satisfy conditions associated with
its running [371] .

The 1962 Act also effected a number of changes with respect to agricultural
holdings. It allowed for only four agricultural holdings,
namely, agricultural
farm holdings, perpetual leases, settlement farm and grazing selections, with
the latter having two sub-categories,
namely, grazing homestead selections and
grazing farm selections [372] . As with
perpetual leases under the 1910 Act, a perpetual lease under the 1962 Act was
described in s 127(1) of that latter Act
as "a lease in perpetuity".

The 1962 Act provided for the automatic conversion of some holdings under
earlier Acts to holdings under that Act [373] . As well, provision was made for lessees of some
agricultural holdings under earlier Acts to apply for their conversion to
holdings
under the later Act [374] . The 1962
Act also contained specific provisions for the continuation of some unconverted
holdings [375] . However and leaving aside s
66(1) which permitted certain holdings, including pastoral holdings, to be
converted to stud holdings [376] , pastoral
leases granted under earlier Acts were not converted, but continued by s 4(2)
of the Act and, by that sub-section, deemed
to have been granted under the 1962
Act. Subject to provisoes which are not presently relevant, s 4(2) provided
for their continuation
in these terms:

"All leases of land ... granted ... under the repealed Acts, and subsisting at
the commencement of this Act, shall be deemed to have
been granted or issued
under the provisions of this Act relating to the tenure or class or mode of a
class of tenure hereunder which
is analogous thereto and shall in all respects
continue in force and be held under and subject to this Act".

The 1910 Act was one of the repealed Acts [377] .

The effect of s 4(2) was reflected in the definition of "pastoral lease" in s
5 of the 1962 Act. That definition was as follows:

"A lease of land under and subject to Divisions I and II of Part III: the term
includes a pastoral holding, preferential pastoral
holding or pastoral
development holding, the lease whereof was issued otherwise than pursuant to
Part III."

The definition also reflected the provisions of Div I of Pt VI of the Act
which, as already mentioned, allowed for the renewal of
certain leases,
including pastoral leases, prior to their expiry.

It should also be noted that the terms of the definition of "pastoral lease"
in s 5 of the 1962 Act emphasise that, as with pastoral
leases under the 1910
Act, pastoral leases granted under the later Act conferred only the estate or
interest which that Act authorised.

Unlike the 1910 Act, the 1962 Act provided for the renewal of certain leases
prior to their expiry [378] . Application for
early renewal had to be considered by the Land Administration Commission,
which, pursuant to s 156(1), was required
to investigate, amongst other
things:
" ...
(b) the public interests, the interest of the lessee concerned, and how best
the land [might] be brought to its maximum production,
increased population
[might] be sustained, and the public estate [might] be developed;
...
(d) such other factors and circumstances as the Commission deem[ed] fit and
proper".

By s 157(1) of the Act, the Minister was given "absolute discretion" to refuse
or approve an application for early renewal and to
approve renewal "either
unconditionally or subject to such conditions as, in his opinion, [were]
calculated to develop the public
estate" [379] . It was pursuant to these provisions that the Holroyd
Pastoral Lease was granted and made subject to the special conditions earlier
mentioned.

Another point of distinction between the 1910 Act and the 1962 Act is that the
1962 Act made express provision for entry into occupation
and possession of all
holdings under the Act. If there were improvements on the land, the Act
provided that all selectors, lessees
(which, of course, included pastoral
lessees) and purchasers were "entitled to occupy, and [might] enter into
possession" upon payment
of the prescribed or provisional value of the
improvements or sooner with the written permission of the Minister [380] . If there were no improvements, the
grantee of a pastoral lease was "entitled to occupy and [might] enter into
possession ... on
and from the date of acceptance of his application" [381] .

The 1962 Act provided for the early surrender of leases [382] and for forfeiture for various causes, including non
payment of rent [383] and "breach of any
condition to which [the lease was] or [was] deemed to be subject" [384] . Sub-section (1) of s 299 provided that,
in the event of forfeiture or early determination, "unless in any particular
case other
provision [was] made in that behalf by [the 1962] Act, the land
[should] revert to Her Majesty and become Crown land, and [might]
be dealt with
under [the] Act accordingly". In that respect, the 1962 Act corresponded with
the 1910 Act. However, s 299(2) provided:

"Forthwith upon the determination of the lease the person in occupation of the
land concerned shall give peaceful possession thereof
and of all improvements
thereon to the [Land Commissioner for the relevant district] or a person
thereunto named by the [Land] Commissioner,
otherwise such person shall be a
trespasser upon Crown land and the provisions of [the] Act relating to such
trespassers shall apply
accordingly".

Provision was made in s 372 of the 1962 Act with respect to trespassers on
reserves and Crown land in terms to much the same effect
as s 203 of the 1910
Act. A similar procedure to that specified in s 204 of the 1910 Act for the
removal of persons in unlawful
occupation of reserves and Crown land was laid
down by s 373. And, as with its counterpart under the 1910 Act, the concluding
paragraph
of s 373 provided for the same procedure to be invoked by "[a] lessee
or his manager or a licensee of any land held from the Crown,
or a person ...
purchasing any land from the Crown" against "any person in unlawful occupation"
of the land concerned.

Statutory conditions with respect to Pastoral Leases

As well as the special conditions to which reference has been made, the
Holroyd Pastoral Lease is expressed to be subject to the
conditions and
provisoes specified in Pt III, Div I of the 1962 Act. By s 50(2) in that Part,
the Minister might specify conditions
in the notification that land was open
for lease as a pastoral holding, including conditions with respect to boundary
fencing, improvements,
developmental works and the eradication of noxious
plants. Additional conditions might be specified in the opening notification
for pastoral development holdings and preferential pastoral holdings [385] . The Holroyd Pastoral Lease was granted
in consequence of an application for renewal under s 155 of the 1962 Act, not
pursuant to
an opening notification. Thus, it is not subject to conditions
which might otherwise have attached by operation of s 50 [386] .

One other provision of Pt III, Div I of the 1962 Act, namely s 61, specified
conditions applicable to leases of pastoral holdings.
It provided as to their
maximum permissible term, their commencement, and specified, in s 61(d), that
"rent [should] be computed
according to the number of square miles in the
lease".

In addition to the conditions attaching to leases of pastoral holdings
pursuant to the provisions of Pt III, Div I of the 1962 Act,
ss 251 and 261,
respectively, subjected all holdings to conditions for the destruction of
noxious weeds and Harrisia cactus. However,
the Minister was empowered by s
266 to grant exemptions from each of those conditions if satisfied that
performance would be uneconomic.

Provisions of the 1962 Act allowing for exemption from conditions

In addition to s 266 which empowered the Minister to grant exemptions with
respect to the destruction of noxious weeds and Harrisia
cactus, there were two
other provisions of the 1962 Act relevant to the performance of conditions
attaching to pastoral leases.
First, s 14(2)(a) allowed that "[t]he Minister,
with the approval of the Governor in Council and the consent of the lessee,
[might]
delete or vary or amend any developmental or improvement condition
(including the condition of fencing or other improvement) of a
lease". That
power was subject to the qualification contained in sub-section (c), the effect
of which was that the Minister could
extend but not reduce the time for
performance.

The second relieving or exempting provision was that contained in s 64(3), to
which some reference has already been made. By that
sub-section, "[t]he
Minister, in his discretion, [might] exempt a lessee from performing any
condition of fencing imposed upon the
lease of a pastoral lease and [might]
alter or cancel such exemption". The combined effect of the concluding
paragraph of that sub-section
and of s 111 of the Act [387] was that the exemption might be limited as to time and
circumstances and that, once granted, it could only be cancelled or altered
by
the giving of six months' notice to that effect.

Specific provision was also made for relief against forfeiture, including
forfeiture of pastoral leases. Although provision was
made in s 297 for
proceedings to determine whether a lease was liable to be forfeited, an
overriding discretion was reserved to the
Minister in these terms [388] :

"If upon the final decision of the matter any such liability to forfeiture is
established the Minister may in his discretion-
(a) recommend to the Governor in Council that the lease be forfeited; or
(b) waive the liability to forfeiture subject to such terms and conditions as
he thinks fit to impose upon the lessee."

Other provisions of the 1962 Act relevant to the estate or interest
conferred by Pastoral Leases

As with the 1910 Act, the 1962 Act made provision denying the lessees of
various holdings, including the lessee of a pastoral holding,
the right,
without prior written permission, to destroy any tree on the land the subject
of the lease [389] . There was no provision
in the 1962 Act akin to ss 199 and 200 of the 1910 Act which allowed for others
to be licensed to take timber
from land held under a pastoral lease. At all
relevant times, however, the Forestry Act 1959 (Q) provided for the
issue of licenses to get forest products from various holdings, including
pastoral holdings, and conferred
full
power of entry upon persons so licensed [390] .

Finally, it should be noted that persons travelling stock on a stock route
passing through a pastoral lease were entitled to depasture
the stock on the
land on the same terms and conditions as those applicable under the 1910 Act [391] .

The interest conferred by the Holroyd Pastoral Lease

The differences between the Mitchellton Pastoral Leases and the Holroyd
Pastoral Lease and between the 1910 and the 1962 Acts provide
some support for
the view that the Holroyd Pastoral Lease is a true lease, the grant of which
conferred a right of exclusive possession
on the lessees. Perhaps the most
significant difference is to be seen in the Holroyd Pastoral Lease, itself,
which, as already mentioned,
is in the prescribed form and, in accordance with
that form, is not expressed to be granted solely for pastoral purposes.

There is also the consideration that the 1962 Act, unlike the 1910 Act,
provided for lessees of pastoral holdings, along with selectors,
the lessees of
other holdings and purchasers of land under the Act to "occupy and ... take
possession" of land. This does not establish
that a pastoral lease conferred a
right of exclusive possession; on the other hand, the contrary proposition
draws no support from
the absence of any provision authorising occupation or
possession, as is the case with the 1910 Act.

Another difference between the 1910 and the 1962 Acts which provides a measure
of support for the view that the lease of a pastoral
holding under that latter
Act confers a right of exclusive possession is that, as with other holdings
under the 1962 Act, the lessee
of a pastoral holding was required, on
forfeiture or early termination, to give possession to the Crown.
Notwithstanding the terms
of s 299(1) which, in the event of forfeiture or
early termination of a lease, assimilate the land involved to what, for
convenience,
may be referred to as unalienated Crown land, the terms of s
299(2), requiring that possession be given to the Crown, point in favour
of a
statutory interest on forfeiture or early termination extending beyond radical
title. Again, if that is the effect of s 299(2),
it does not establish that a
pastoral lease conferred a right of exclusive possession and accordingly does
not establish the existence
of a traditional leasehold estate [392] ; neither, however, does it provide support for the
contrary view, as did the absence of a reversionary interest extending beyond
radical title in the case of the Mitchellton Pastoral Leases.

Other provisions which are capable of giving some support to the view that a
lease of pastoral holding under the 1962 Act conferred
a right of exclusive
possession are those allowing for a grant to be made subject to conditions for
the erection of boundary fences
and the carrying out of improvements and
developmental works. As earlier indicated, such conditions might be imposed
pursuant to
a requirement to that effect in the opening notification [393] , or, as here, pursuant to conditions
imposed by the Minister on renewal prior to expiry. And, of course, the
question of early renewal
in the case of pastoral and other renewable leases,
was dependent on a consideration, amongst other things, of "how best the land
[might] be brought to its maximum production, increased population [might] be
sustained, and the public estate ... developed" [394] . Consideration of those matters might well result in
conditions suggestive of a right of exclusive possession.

Certainly, improvement and developmental conditions for the construction of
buildings and improvements such as the manager's residence
and airstrip
required by the Holroyd Pastoral Lease might suggest a right of exclusive
possession. And as there is no basis for
distinguishing as to the estate or
interest granted with respect to that part of the land to be improved and that
to be left unimproved,
conditions of that kind might suggest a right of
exclusive possession over the whole land. Similarly, as there is no statutory
basis
for distinguishing between pastoral holdings made subject to improvement
or developmental conditions and those not subject to conditions
of that kind,
the possibility that such conditions might be imposed is capable of suggesting
that all pastoral leases conferred a
right of exclusive possession.

However, it would be wrong, in my view, to place great weight on the
provisions of the 1962 Act authorising the imposition of improvement
and
developmental conditions. After all, other provisions of the Act conferred
discretionary powers on the Minister to delete, vary
or amend those conditions,
to exempt lessees from performance of fencing conditions and ultimately, to
relieve against forfeiture.
Moreover, it cannot be said that the conditions
which might be imposed were of such a nature that they necessitated a right of
exclusive
possession. After all, the ordinary criminal and civil laws were and
are available to protect against wilful and negligent damage
to property. And
to the extent that there is any inconsistency between the satisfaction of
conditions and the exercise of native
title rights, it may be that satisfaction
of the conditions would, as a matter of fact, but not as a matter of legal
necessity, impair
or prevent the exercise of native title rights and, to that
extent, result in their extinguishment.

In the light of the principle of construction identified and explained in
Mabo [No 2] and in light of the long statutory history of pastoral
leases, clear words are plainly required before the provisions of the 1962
Act
dealing with pastoral tenures can be construed as changing the essential nature
of pastoral leases by the introduction, under
the same name, of a different
tenure conferring a right of exclusive possession. The matters to which
reference has been made fall
short of a clear indication of an intention to
that effect. Rather, s 4(2) of the 1962 Act makes it plain that the pastoral
tenures
permitted by that Act were, and were intended to be, "analogous" with
those permitted by earlier Acts, including the 1910 Act. Given
these
considerations, the provisions of the 1962 Act concerned with leases of
pastoral holdings are not to be construed as creating
leases which conferred a
right of exclusive possession and, thus, a right to exclude native title
holders from their traditional
lands.

It follows that the Holroyd Pastoral Lease did not confer a right of exclusive
possession. The questions whether performance of
the conditions attached to
the Holroyd Pastoral Lease effected any impairment or extinguishment of native
title rights and, if so,
to what extent are questions of fact and are to be
determined in the light of the evidence led on the further hearing of this
matter
in the Federal Court.

Conclusion with respect to the Holroyd Pastoral Lease: answer to question
1B

Again, the conclusion that, as a matter of statutory construction, a pastoral
lease under the 1962 Act did not confer a right of
exclusive possession makes
it unnecessary to consider the arguments with respect to fiduciary duties. And
that conclusion also has
the consequence that Drummond J was in error in
answering question 1B(b) as he did. Instead, it should have been answered
"No".
As with questions 1C(c) and (d), questions 1B(c) and (d) do not arise.
However, in the light of these reasons, I would answer sub-question
1B(d)
"No".

Orders

I agree with the orders proposed by Toohey J.

McHUGH J. I agree with the judgment of Brennan CJ in these matters and with
the orders which he proposes.
GUMMOW J.

Introduction

On 30 June 1993, that is to say before the enactment of the Native Title
Act 1993 (Cth) ("the Native Title Act ") [395] , the Wik Peoples instituted in the Federal Court of
Australia a proceeding in which they sought to establish the existence of
certain
native title rights over an area of land in North Queensland. The
State of Queensland was first respondent and the Commonwealth
of Australia
second respondent. The Thayorre People were later joined as respondents. They
cross-claimed, seeking similar relief
in respect of lands that, in part,
overlapped those the subject of the claim of the Wik Peoples.

The litigation stands outside the system for the determination of native title
claims established by the Native Title Act . However,
it raises issues which
may have importance for the operation of that statute. The expressions "native
title" and "native
title rights
and interests" are defined in s 223(1) thereof
as meaning communal, group or individual rights and interests of Aboriginal
peoples
or Torres Strait Islanders in relation
to land or waters where, among
other things, "the rights and interests are recognised by the
common law of
Australia". If acts done
before the commencement on 31 October 1975 of the
Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act ")
were effective to extinguish or impair native title, the Native Title Act does
not undo that
result. In the joint judgment of six members of this Court in
Western Australia v The Commonwealth ( Native Title Act
Case ) 396 , it was said:

"An act which was wholly valid when it was done and which was effective then
to extinguish or impair native title is unaffected
by the Native Title
Act . Such an act neither needs nor is given force and effect by the
Act."

The present litigation is not concerned solely with steps taken under the
prerogative. Prerogative powers were supplanted in Queensland
by statute as a
result of constitutional development in the second half of the nineteenth
century. As will appear in the course
of these reasons, the issues on these
appeals turn upon the proper construction of The Land Act 1910 (Q) ("the
1910 Act") and The Land Act 1962 (Q) ("the 1962 Act"), and upon the
terms of the grants of pastoral leases thereunder. The 1962 Act repealed the
1910 Act.
The 1962 Act has now been repealed by the Land Act 1994
(Q).
I approach these issues of construction upon the assumption, adverse to the
Wik Peoples and the Thayorre People, that there does
not exist and did not
exist when the 1910 Act and the 1962 Act were enacted, any fiduciary
relationship between them and the State
of Queensland. The Wik Peoples and the
Thayorre People submitted that such relationships existed and the duties
arising thereunder
militated against there being any legislative intention to
extinguish native title. I put fiduciary duty issues to one side.

Rather, I begin with the proposition that for a statute such as the 1910 Act
or the 1962 Act to impair or extinguish existing native
title or to authorise
the taking of steps which have that effect, it is necessary to show, at least,
the intention, "manifested clearly
and plainly", to achieve that result. That
is how the point was expressed in the joint judgment of six members of the
Court in the
Native Title Act Case [397] .

In this context, "intention" does not refer to any particular state of mind of
the legislators, who may not have adverted to the
rights and interests of the
indigenous inhabitants [398] . Moreover,
statute law may be the result of a compromise between contending factions and
interest groups and of accommodations between
and within political
organisations which are not made public and cannot readily be made apparent to
a court [399] . To speak here of "intention"
will seldom assist and may impede the understanding of the effect of the
legislation in question,
unless it be kept in mind that what is involved is the
"intention" manifested by the legislation [400] . As Holmes put it, "[w]e do not inquire what the
legislature meant; we ask only what the statute means" [401] . It will be necessary later in these reasons to
consider the particular criteria by which the manifestation of legislative
intention
is to be assessed in this case.
The Federal Court proceedings

The content of native title, its nature and incidents, will vary from one case
to another. It may comprise what are classified
as personal or communal
usufructuary rights involving access to the area of land in question to hunt
for or gather food, or to perform
traditional ceremonies. This may leave room
for others to use the land either concurrently or from time to time [402] . At the opposite extreme, the degree of
attachment to the land may be such as to approximate that which would flow from
a legal
or equitable estate therein [403] .
In all these instances, a conclusion as to the content of native title is to be
reached by determination of matters of fact, ascertained
by evidence [404] .

It is at this threshold that these appeals present a significant
consideration. There has been no trial of issues going to the
establishment of
native title and the ascertainment of its content. Yet the effect of the
decision at first instance was to foreclose
the occasion for such a trial and
to rule against the claims of the Wik Peoples and the Thayorre People. This
state of affairs has
come about as follows.

A judge of the Federal Court (Drummond J) ordered [405] a number of questions for separate decision [406] . Questions 1B, 1C, 4 and 5 and the
answers given by Drummond J are set out in the judgment of Brennan CJ. The
Thayorre People were
granted leave to appeal to the Full Court of the Federal
Court against the determination of Question 1C. This related to two
instruments
for a grant of pastoral leases (the "Mitchellton Pastoral Leases")
dated respectively 25 May 1915 and 14 February 1919 and issued
pursuant to the
1910 Act [407] . Each pastoral lease was for
a term of 30 years. However, the first was forfeited in 1918 for non-payment
of rent and the second
was surrendered in 1921. There was no entry into
occupation by the grantees of either of these pastoral leases. They were for
an
area of 535 square miles, bounded partly by the Gulf of Carpentaria, the
Mitchell River and the Edward River. In 1921 the Chief
Protector of
Aboriginals reported that "there are about 300 natives roaming this country".
In that year, by Order in Council made
under the power conferred by s 180 of
the 1910 Act, the land in question was reserved and set apart for use of the
Aboriginal inhabitants
of the State. The creation of such a reserve did not
extinguish any native title which then still subsisted [408] .

The Wik Peoples obtained leave to appeal to the Full Federal Court, not only
in respect of the answer to Question 1C but in respect
of Question 1B. This
concerned a lease of an area of 2,830 square kilometres (partly bounded by the
Holroyd River) as a pastoral
holding under the 1962 Act ("the Holroyd River
Pastoral Lease"). The carrying capacity in fair seasons was one beast per 60
acres.
The pastoral lease was granted, with effect for 30 years from 1 January
1974, by instrument dated 27 March 1975 (some seven months
before the
commencement of the Racial Discrimination Act ) and is still current [409] .

Leave also was granted to the Wik Peoples to appeal to the Full Court in
respect of the answers to Questions 4 and 5. These concerned
certain claims
against the State of Queensland, the first respondent; Comalco Aluminium Ltd
("Comalco"), the fourth respondent; and
Aluminium Pechiney Holdings Pty Ltd
("Pechiney"), the fifth respondent. That branch of the litigation involves
discrete issues.
I agree it should be dealt with as proposed by Kirby J and
for the reasons given by his Honour.

The Questions concerning the Holroyd River Pastoral Lease and the Mitchellton
Pastoral Leases were so framed as to ask whether,
if at any material time any
native title existed in respect of the land the subject of those pastoral
leases, the grant of those pastoral leases necessarily
extinguished all incidents thereof. The form in which the issue is
presented, namely necessary extinguishment by grant, is significant.
The
primary judge answered the questions in the affirmative as to the Holroyd River
Pastoral Lease and the first of the Mitchellton
Pastoral Leases. However, as I
have indicated, this was without any prior determination as to whether, in
fact, any native title
was in existence at the respective times of grant of
those pastoral leases.

By orders of this Court made under s 40 of the Judiciary Act 1903
(Cth), each of the pending appeals to the Full Federal Court by the Wik Peoples
and the Thayorre People was removed into this Court.

My conclusion is that the primary judge erred in determining that the grants
of pastoral lease under the 1910 Act and the 1962 Act
necessarily had the
effect of extinguishing all incidents of any native title which might have then
subsisted in the Wik Peoples
or the Thayorre People. Rather, his Honour should
have determined that none of these grants clearly, plainly and distinctly
authorised
activities and other enjoyment of the land which necessarily were
inconsistent with the continued existence of any of the incidents
of native
title which could have been subsisting at the time of these grants. This would
leave for future determination at trial
the questions whether such native title
subsisted at material times and still subsists and, if so, the incidents of
such native title.

The legal framework

In asking "what the statute means" [410] of
any provision of the 1910 Act or the 1962 Act, regard is to be had not only to
the other provisions of the same statute but also
to such matters as other
statutes in pari materia and the existing state of the law [411] . The phrase "the existing state of the
law" embraces the then understanding of the common law. In this way there is
discerned the
state of affairs for the remedy or establishment of which the
statute was designed [412] .

At the enactment of the 1910 Act as at that of the 1962 Act, a basic principle
of land titles in Australia was that identified,
with some reference to New
South Wales colonial history before the establishment of self-government, by
Windeyer J in Randwick Corporation v Rutledge . His Honour said [413] :
"On the first settlement of New South Wales (then comprising the whole of
eastern Australia), all the land in the colony became
in law vested in the
Crown. The early Governors had express powers under their commissions to make
grants of land. The principles
of English real property law, with socage
tenure as the basis, were introduced into the colony from the beginning - all
lands of
the territory lying in the grant of the Crown, and until granted
forming a royal demesne. The colonial Act, 6 Wm IV No 16 (1836),
recited in
its preamble that the Governors by their commissions under the Great Seal had
authority 'to grant and dispose of the waste
lands' - the purpose of the Act
being simply to validate grants which had been made in the names of the
Governors instead of in the
name of the Sovereign. And when in 1847 a bold
argument, which then had a political flavour, challenged the right of the
Crown,
that was to say of the Home Government, to dispose of land in the
colony, it was as a legal proposition firmly and finally disposed
of by Sir
Alfred Stephen CJ: The Attorney-General v Brown [414] ."

Stephen CJ had emphasised in Brown that, at the time of making a grant
of land to a subject, the Crown must be presumed to have a title to that land
and that this original
title provides the foundation and source of all other
titles. Estates in land in the colony were held in free and common socage.
They were not allodial, that is to say, they were not a species of estate which
existed outside the feudal system and were held independently
and not of any
superior. All interests in land in New South Wales had been granted directly
by the Crown. In contrast to the tenurial
system as it had been applied in
England, in the colony estates were not held by any intermediate or mesne
lord.

Attorney-General v Brown concerned a grant made in 1840. Until as late
as 1842 there was no statutory restriction upon the alienation by the Crown of
lands
in the Australian colonies. The phrase "waste lands" had as its primary
meaning lands which were uncultivated rather than profitless [415] . The management and control of colonial waste lands
(ie, lands not yet granted from the Crown in fee simple, or for an estate in
freehold, or for a term of years, and not dedicated and set apart for some
public use [416] ) was by executive fiat [417] .

Until the mid-nineteenth century Imperial policy with respect to Australia was
opposed to Colonial control in such matters. There
was no invariable rule that
a colony enjoyed its own land revenue [418] .
To the contrary, the Imperial authorities saw "unsettled" land as the source of
revenue to recoup the outlays in the operation of
the colonial administrations
and to provide for further emigration from the United Kingdom and other
development. After 1840, the
Colonial Secretary was advised by the Colonial
Lands and Emigration Commissioners. In 1842 this body received by statute [419] powers with respect to the administration
of the proceeds of sale of waste lands. Gross proceeds of such sales were to
be applied
to the "public Service" of the colony in which the land was situated
and one-half was to be appropriated to the purposes of emigration [420] . An element of representative government
was provided by the Australian Constitutions Act 1842 (Imp) [421] , but s 29 excluded from the competence of
the New South Wales Legislative Council any law which interfered in any manner
with the
sale of Crown lands in the colony or with the revenue arising
therefrom [422] .

The Australian Constitutions Act did not provide a constitutional
settlement of any duration. Queensland was separated from New South Wales in
1859 and with the
arrival of representative government the Imperial authorities
relinquished control over Crown lands in these colonies. Imperial
statute, s 2
of the New South Wales Constitution Act 1855 [423] , vested in the New South Wales legislature the entire
management and control of the waste lands belonging to the Crown in New South
Wales and the power of appropriation of the gross proceeds of the sales of any
such lands [424] . Then s 30 of the
Constitution Act 1867 (Q) ("the 1867 Act") [425] provided that it was to be lawful for the legislature
of that colony to make laws for regulating the sale, letting, disposal and
occupation of waste lands of the Crown within Queensland. With exceptions not
presently material, s 40 stated:

"The entire management and control of the waste lands belonging to the Crown
in the said Colony of Queensland and also the appropriation
of the gross
proceeds of the sales of such lands and of all other proceeds and revenues of
the same from whatever source arising
within the said colony including all
royalties mines and minerals shall be vested in the Legislature of the said
colony.

..."

The result was to withdraw from the Crown, whether represented by the Imperial
authorities or by the Executive Government of Queensland,
significant elements
of the prerogative. The management and control of waste lands in Queensland
was vested in the legislature and
any authority of the Crown in that respect
had to be derived from statute [426] .

There followed the enactment in Queensland and elsewhere of statutes designed
to provide for conditions unknown in England and to
meet local wants in a
fashion unprovided for in England. First, there was the growth of a statutory
system of title by registration,
identified by the phrase "the Torrens system",
whereby statute makes the certificate of title conclusive evidence of its
particulars
and protects the registered proprietor from actions to recover the
land, except in specifically described cases [427] .
Then there was the creation by statute of what Griffith CJ called "new forms
of tenure" [428] . This legislative activity
illustrated the general propositions that statute may create interests in
property which are unknown
to the common law [429] and that "there is nothing higher among legal rights
than a right created by statute" [430] . To
these new forms of tenure the terms "lease" and "licence" applied in a new and
generic sense [431] . The legislation teemed
with "proverbial incongruities" [432] and
Higgins J used the term " quasi -Crown lands" [433] to identify those areas as to which there had been
conferred a tenure short of a fee simple. Of the operation of that system in
New South Wales in 1905, that is to say shortly before the enactment of the
1910 statute in Queensland, A C Millard and G W Millard
wrote [434] :

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

The comparable situation in Queensland later was described as follows [435] :

"The Crown leasehold principle, introduced during the imperial period as a
device in favour of the squatters, was developed in (literally)
scores of
Queensland statutes after the Separation in 1859. The undoubted constitutional
right of the Queensland Parliament to create
whatever tenures it thinks fit and
to attach to them whatever incidents it thinks fit, has been exercised
actively. In Queensland,
as Millard has correctly stated in respect of New
South Wales, the result is 'a bewildering multiplicity of tenures - many of
them
exhibit only trifling differences in detail' [436] .

Gone is the simplicity of the law concerning modern English tenures; gone is
the senile impotence of the emasculated tenurial incidents
of modern English
Land Law. In Queensland, as in the rest of Australia, we are in the middle of
a period in which the complexity
and multiplicity of the law of Crown tenures
beggars comparison unless we go back to the early mediaeval period of English
Land Law."

Throughout this period it was assumed that the powers of the colonial and then
of the State legislatures to create whatever tenures
they thought fit, and with
the attachment of such incidents as statute provided, were exercised in an
environment where the local
common law recognised no allodial species of estate
which was held independently of any grant by the Executive Government or of any
grant by or pursuant to statute. That this was a false assumption was
demonstrated in 1992 by the decision of this Court in Mabo [No 2] [437] .

That decision confirmed native title rights to certain lands in two Torres
Strait islands which had been annexed to the colony of
Queensland in 1879 [438] . On remitter to the Supreme Court of
Queensland, findings of fact were made concerning the occupation of the Murray
Islands by the
Meriam People, Melanesians who probably came to settle the
islands from Papua New Guinea [439] . This
Court granted declaratory relief as to the subsistence of the native title of
the Meriam people [440] . Nevertheless,
Mabo [No 2] must be taken, particularly since the further decisions with
respect to Western Australia in the Native Title Act Case [441] , to establish and entrench in the common
law of Australia broader and more fundamental propositions. They include the
holding that:

"the common law of Australia recognises a form of native title that reflects
the entitlement of the indigenous inhabitants of Australia,
in accordance with
their laws and customs, to their traditional lands".

This is the formulation in the Preamble to the Native Title Act , and thus
supplies a foundation upon which the Parliament enacted
the Native Title Act .
The Preamble also recites the holding in Mabo [No 2] 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".

The extinguishment of existing native title readily is seen as a consequence
of a grant in fee simple. That is because the fee
simple, as the largest
estate known to the common law, confers the widest powers of enjoyment in
respect of all the advantages to
be derived from the land itself and from
anything found upon it. No different result may follow where what is asserted
against native
title is a lease for a term. In particular, subject to the
constraints imposed by the law of waste, at common law the lessee ordinarily
has powers of use and enjoyment with respect to certain profits or produce
derived from the land. Under the common law as developed
in England, this
included game and other ferae naturae captured within the limits of the
land [442] and a general property in
underwood and trees [443] .

In these appeals, the fundamental issue does not concern the extinguishment of
native title by grant of a fee simple or of a leasehold
interest as known to
the common law. Rather, it concerns the impact upon native title of statute
and of sui generis interests created thereunder. The dispute is whether
the grants of the Mitchellton Pastoral Leases, pursuant to the 1910 Act, and
of
the Holroyd River Pastoral Lease, pursuant to the 1962 Act, were, in the sense
of the Preamble to the Native Title Act , valid
government acts inconsistent
with the continued existence of any native title rights and interests which
subsisted when the
grants
were made. Those statutory grants were not of any
freehold estate, being, indeed, grants of interests that were sui
generis .

English land law

Traditional concepts of English land law, although radically affected in their
country of origin by the Law of Property Act 1925 (UK), may still exert
in this country a fascination beyond their utility in instruction for the task
at hand. So much became
apparent as submissions were developed on the hearing
of these appeals. The task at hand involves an appreciation of the
significance
of the unique developments, not only in the common law, but also
in statute, which mark the law of real property in Australia, with
particular
reference to Queensland. I have referred above to some of these developments.
There also is the need to adjust ingrained
habits of thought and understanding
to what, since 1992, must be accepted as the common law of Australia.

Further, those habits of thought and understanding may have lacked a broad
appreciation of English common law itself. For example,
there is no particular
reason to be drawn from English land law which renders it anomalous to
accommodate in Australian land law
notions of communal title which confer
usufructuary rights. There are recognised in England rights of common which
depend for their
establishment upon prescription and custom. An example is the
common of pasture in gross enforceable by action by one commoner on
behalf of
that commoner and the other commoners [444] .
Moreover, the extinguishment of the rights of commoners may be effected by
statute. In the century before the enactment in England
of the Inclosure
Act 1845 (UK) [445] , nearly 4,000 private
inclosure Acts had been passed [446] .

Nor, in a system where, subject to statute, land ownership depends upon
principles derived from the English common law is there
any necessary
conceptual difficulty in accommodating allodial to tenurial titles. The point
was made as follows by Brennan J in
Mabo [No 2] [447] :

"Nor is it necessary to the structure of our legal system to refuse recognition
to the rights and interests in land of the indigenous
inhabitants. The
doctrine of tenure applies to every Crown grant of an interest in land, but not
to rights and interests which do
not owe their existence to a Crown grant. The
English legal system accommodated the recognition of rights and interests
derived
from occupation of land in a territory over which sovereignty was
acquired by conquest without the necessity of a Crown grant."

Blackstone contrasted as follows the term "allodial" with the term "fee" [448] :

"The true meaning of the word fee ( feodum ) is the same with that of feud
or fief, and in its original sense it is taken in contradistinction to
allodium ; which latter the writers on this subject define to be every
man's own land, which he possesseth merely in his own right, without
owing any
rent or service to any superior. This is property in its highest degree; and
the owner thereof hath absolutum et directum dominium , and therefore is
said to be seised thereof absolutely in dominico suo , in his own
demesne. But feodum , or fee, is that which is held of some superior, on
condition of rendering him service; in which superior the ultimate property of
the land resides."

In Blackstone's time, it was accepted that allodial titles preceded the
development of the feudal system after the Norman Conquest.

In the same period in which the existence of allodial title was denied to the
colony of New South Wales by the decision in Brown , it was re-emerging
elsewhere in the common law world. Quite apart from the treatment in the
United States of native title, the
American Revolution was followed in several
of the States by legislative repudiation of the tenurial system as the ultimate
root
of real property title. For example, in New York the legislature
abolished all feudal tenures of every description, with all their
incidents,
and declared that all lands within that State were allodial [449] . Of the developments in the United States, Chancellor
Kent wrote in 1828 [450] :

"Thus, by one of those singular revolutions incident to human affairs,
allodial estates, once universal in Europe, and then almost
universally
exchanged for feudal tenures, have now, after the lapse of many centuries,
regained their primitive estimation in the
minds of freemen."

The significance of Mabo [No 2]

In this decision, the Court declared the content of the common law upon a
particular view which now was taken of past historical
events. The
significance this has for common law techniques of adjudication may be seen in
the form taken by the submissions on
the present appeals. The first matter of
significance concerns what is sometimes identified as the declaratory theory of
the common
law. The second is related to the first. It concerns the meaning
to be given, when interpreting statutes such as the 1910 Act and
the 1962 Act,
to the phrase, referred to earlier in these reasons, "the existing state of the
law".

There have been few adherents in recent times to a declaratory theory in an
absolute form. For one thing, the principles and doctrines
of equity were
never "like the rules of the Common Law, supposed to have been established from
time immemorial"; rather, they were
"established from time to time - altered,
improved, and refined from time to time" [451] . For another, to use the words of Windeyer J, "[l]aw
is to be accommodated to changing facts" [452] . Perhaps the general understanding (with its emphasis
upon the evolutionary and the functional [453] ) was expressed by Lord Radcliffe in 1956 in his speech
in Lister v Romford Ice and Cold Storage Co Ltd [454] :

"No one really doubts that the common law is a body of law which develops in
process of time in response to the developments of the
society in which it
rules. Its movement may not be perceptible at any distinct point of time, nor
can we always say how it gets
from one point to another; but I do not think
that, for all that, we need abandon the conviction of Galileo that somehow, by
some
means, there is a movement that takes place."

Here is a broad vision of gradual change by judicial decision, expressive of
improvement by consensus, and of continuity rather than
rupture. Yet much of
the common law is subjected to statutory modification, often drastic. The task
of the courts then is to construe
that statutory change to the common law,
employing common law methods and techniques of interpretation and
adjudication [455] .

Movement also may plainly be perceptible, and there may be an explicit change
of direction, where, in the perception of appellate
courts, a previously
understood principle of the common law has become ill adapted to modern
circumstances. The point was made as
follows by Mason J in State Government
Insurance Commission v Trigwell [456] :

"If it should emerge that a specific common law rule was based on the existence
of particular conditions or circumstances, whether
social or economic, and that
they have undergone a radical change, then in a simple or clear case the court
may be justified in moulding
the rule to meet the new conditions and
circumstances. But there are very powerful reasons why the court should be
reluctant to
engage in such an exercise. The court is neither a legislature
nor a law reform agency." [457]

Again, it may emerge that the rationale of a particular cause of action is the
product of a procedural fiction (eg, an implied promise
to pay) which should no
longer be supported after the demise of the old forms of action [458] . In those cases, the perceived reason for change stems
from alterations in the legal system itself. The procedural operation of
the
Judicature system may produce similar results [459] . More simply, upon analysis it may appear that a
particular principle (eg, as to the irrecoverability of payments made under a
mistake
of law) rests upon a dubious foundation in the case law which has not
been accepted in this Court [460] .

Mabo [No 2] was not such a decision. Nor did it rest upon the
rejection of a particular common law rule by reason of its basis in particular
conditions or circumstances which, whilst once compelling, since have become
ill adapted to modern circumstances. Rather, the gist
of Mabo [No 2]
lay in the holding that the long understood refusal in Australia to accommodate
within the common law concepts of native title rested
upon past assumptions of
historical fact, now shown then to have been false.

Those assumptions had been made within a particular legal framework which had
been developed over a long period. The effect of
the British Settlements
Act 1887 (Imp) was to empower the Crown to make laws and establish courts
not only for possessions acquired by cession or conquest and
which lacked a
legislature, but also for possessions which had been settled and which lacked a
legislature. Previously, settlers
had seen their interests as better protected
by the classification of a settled colony because that took the local legal
structure
outside prerogative control [461] .
Settled colonies had been identified by the Privy Council in 1722 as those
which had been found "uninhabited" [462] .
This classification was extended to include inhabited territory and in 1828 it
was decided that the applicability of the law of
those inhabitants to settlers
depended upon "the existence of a lex loci , by which the British
settlers might, without inconvenience, for a time, be governed" [463] .

That left various questions as to the legal position of the original
inhabitants [464] . These included the
operation of the criminal law [465] . After
the adoption in Attorney-General v Brown [466] of the doctrine that the original title of the Crown
provided the foundation and source of all other land titles, there remained
in
Australia the question of the extent to which the common law denied all
continuity to customary law of Aboriginal peoples with
respect to land. No
question of native title arose for express decision in Brown .

In 1889 the Judicial Committee decided Cooper v Stuart [467] . No question of native title was in issue in that
case. However, the reasoning of their Lordships was adverse to any theory of
continued native title. The appellant unsuccessfully sought to show that the
rule against perpetuities, in so far as it affected
the Crown, was operative in
New South Wales at the time of an executive grant made by Governor Brisbane in
1823. The Privy Council
held that there was no land law or tenure existing at
the time of annexation to the Crown. Nevertheless, as an exception to the
general and immediate application in New South Wales of English law, the law
against perpetuities could not justly and conveniently
be applied in New South
Wales against the Crown.

As a step in their reasoning, their Lordships declared that the colony of New
South Wales had peacefully been annexed to the Crown,
being territory
"practically unoccupied, without settled inhabitants or settled law" [468] . Of that proposition it was said in
Mabo [No 2] [469] :

"The facts as we know them today do not fit the 'absence of law' or
'barbarian' theory underpinning the colonial reception of the
common law of
England. That being so, there is no warrant for applying in these times rules
of the English common law which were
the product of that theory. It would be a
curious doctrine to propound today that, when the benefit of the common law was
first
extended to Her Majesty's indigenous subjects in the Antipodes, its first
fruits were to strip them of their right to occupy their
ancestral lands."

Thus, it was appropriate to declare in 1992 the common law upon a particular
view of past historical events. That view differed
from assumptions, as to
extent of the reception of English land law, upon which basic propositions of
Australian land law had been
formulated in the colonies before federation. To
the extent that the common law is to be understood as the ultimate
constitutional
foundation in Australia, there was a perceptible shift in that
foundation, away from what had been understood at federation.

In Canada, the basic legal framework had developed quite differently. In R
v Van der Peet [470] McLachlin J
identified two fundamental principles upon which dealings with the aboriginal
peoples were predicated by the common law
and those who regulated British (and
semble French [471] ) settlement of
Canada. These were, first, "the general principle that the Crown took subject
to existing aboriginal interests in
the lands they traditionally occupied and
their adjacent waters, even though those interests might not be of a type
recognized by
British law" and, secondly, these interests "were to be removed
only by solemn treaty with due compensation" [472] .
There remains lacking, at least in Australia, any established taxonomy to
regulate such uses of history in the formulation of legal
norms. Rather,
lawyers have "been bemused by the apparent continuity of their heritage into a
way of thinking which inhibits historical
understanding" [473] . Even if any such taxonomy were to be devised, it
might then be said of it that it was but a rhetorical device devised to render
past reality into a form useful to legally principled resolution of present
conflicts.

At what level of primary fact does one perceive the disappearance of the
foundation for native title by reason of the washing away
by "the tide of
history" of any real acknowledgment of traditional law and real observance of
traditional customs? [474] Again, for
example, one might speculate on the significance their Lordships in Cooper v
Stuart might have attached to the observations of Governor Hutt in 1841 had
they been dealing with the position in Western Australia. The
Governor wrote
from Perth to the Colonial Secretary, Lord John Russell, in accordance with his
directions, a report "exhibiting the
state of the [A]borigines in Western
Australia, and showing what has been done for them in the course of the year
preceding". In
so doing, the Governor said [475] :
"They have no particular spots which can be regarded as their haunts, or where
they habitually dwell; and though every family has
its particular locality or
tract of land which it considers its own, yet this seems to be open to the use
of all the relations of
the family, and from their intermarriages, and
consequent wide-spread connexions, except there should be a blood fued [sic]
between
him and the inhabitants of a particular district, a man may have the
privilege of hunting or of ranging for roots over very many
miles of country;
even the land which an individual may call his own he has no tenacious longing
after when usurped by us, except
so far as it may afford him the means of
subsistence; the moment we clear it for the purposes of agriculture or
gardening, it loses
its chief value in his eyes; so that an Australian's idea
of property in land is limited, it may be said, to its usufructuary value."

The development of an appropriate historical method to some extent has been
constricted by habits of thought engendered by the adversarial
processes of
common law trial. In Air Canada v Secretary of State for Trade [476] , Lord Wilberforce emphasised that those
processes may, from the imperfections or absence of evidence, produce an
adjudication which
is not, and is known not to be, the whole truth of the
matter. His Lordship observed [477] :

"[T]he task of the court is to do, and be seen to be doing, justice between the
parties ... There is no higher or additional duty
to ascertain some independent
truth."

From such a foundation, the further elucidation of common law principles of
native title, by extrapolation to an assumed generality
of Australian
conditions and history from the particular circumstances of the instant case,
is pregnant with the possibility of injustice
to the many, varied and complex
interests involved across Australia as a whole. The better guide must be "the
time-honoured methodology
of the common law" [478] whereby principle is developed from the issues in one
case to those which arise in the next. On the present appeals, this requires
close attention to the terms of the 1910 Act and the 1962 Act.
Statutory interpretation

The particular application in Mabo [No 2] of the declaratory theory of
the common law has consequences for these appeals. The Court is called upon to
construe statutes enacted
at times when the existing state of the law was
perceived to be the opposite of that which it since has been held then to have
been.
Moreover, there is an incongruity in the application to the 1910 Act and
the 1962 Act of the now established common law doctrine
that, in certain
circumstances, regard may be had to what is said by the responsible Minister in
the course of the passage through
the legislature of the Bill for the
particular Act in question [479] . The
legislature would have proceeded in such a situation upon a false understanding
of the existing law.

The same is true of the "purposive" approach to construction, enshrined in s
14A of the Acts Interpretation Act 1954 (Q). The goal there is the
promotion of the general legislative purpose underlying the provision in
question by the adoption
of
a construction which would have that result over
one which would not. Moreover, in 1910 and 1962 the legislature would not have
been equipped fully to discern any mischief or defect for the remedy of which
the statutory provision was appropriate. Finally,
the false footing on which
the legislature is now seen to have acted inhibits the perception of "the
equity of the statute" with
consequent significance for the doctrines of
illegality founded upon the scope and purpose of the legislation [480] .

Of course, a statute may operate adversely upon existing legal or equitable
rights which, at the time of the enactment, were unknown
to the legislature or
even could not be known to it. An example is Plimmer v Mayor, &c, of
Wellington [481] . There, the Judicial
Committee held that, upon the view it took of the facts (which commenced in
1848), the appellant by 1856 had
acquired, by a species of estoppel, an
equitable proprietary interest in certain land. That interest gave a statutory
right to compensation
upon resumption of the land in question in 1880.

It was in this period that Fry J determined Corporation of Yarmouth v
Simmons [482] . The case concerned a
pier, constructed under statutory authority, which obstructed what was said to
have been a previously existing
public right of way. Fry J rejected the
submission that a public right of way could only have been abrogated by express
words in
the legislation. His Lordship put the matter as follows [483] :

"I think that, when the Legislature clearly and distinctly authorize the doing
of a thing which is physically inconsistent with the
continuance of an existing
right, the right is gone, because the thing cannot be done without abrogating
the right."

The expression "clearly and distinctly" emphasises the burden borne by a party
seeking to establish the extinguishment of subsisting
rights not by express
legislative provision but by necessary implication from the provisions of a
statute. The phrase "physically
inconsistent" does not suggest the question of
inconsistency between rights is answered by regard, as a matter of fact in a
particular
case, to activities which are or might be conducted on the land.
Rather, it requires a comparison between the legal nature and incidents
of the
existing right and of the statutory right. The question is whether the
respective incidents thereof are such that the existing
right cannot be
exercised without abrogating the statutory right. If it cannot, then by
necessary implication, the statute extinguishes
the existing right.

This notion of inconsistency includes the effect of a statutory prohibition of
the activity in question. It supplies the means
for resolution of the issues
which arise on these appeals. The decision of Fry J was applied in this Court
by McTiernan J in Aisbett v City of Camberwell [484] and earlier by Isaacs J in Goodwin v Phillips [485] and O'Connor J in Chief Commissioner
for Railways and Tramways (NSW) v Attorney-General for New South Wales .
O'Connor J said [486] :

"[E]xpress words are not necessary for the statutory extinction of a public
right of way. That is illustrated by Mr Justice Fry's judgment in
Corporation of Yarmouth v Simmons [487] , where a public right of way was held to be
extinguished by necessary implication from the provisions of a Statute. The
continued
use of the land as a public road would render the exercise of the
powers expressly conferred on the Constructing Authority impossible.
It
follows, therefore, that by necessary implication the rights of public way must
be taken to have been extinguished by the resumption."

The authorisation by the 1910 Act and the 1962 Act of activities amounting to
physical inconsistency (in the sense indicated above)
with the continued
exercise of what now are accepted as existing rights of native title would
manifest, as a matter of necessary
implication, the legislative intention to
impair or extinguish those rights. I have referred to legislative intention
with the particular
meaning of "intention" indicated in the Native Title Act
Case [488] and discussed earlier in these
reasons. Impairment or extinguishment would also follow if the 1910 Act or the
1962 Act prohibited
acts which would be committed in the exercise of what now
would be accepted to be native title. I approach the analysis of the 1910
Act
and the 1962 Act upon that footing and what follows should be read
accordingly.

Expansion of radical title

Radical title is that acquired upon the assumption of sovereignty (as
understood in the law of nations) or, rather, upon settlement [489] (as understood in that part of British constitutional
law concerned with Imperial expansion). Radical title links international
and
constitutional law notions with those which support the private law of
proprietary rights and interests in land. Thus, radical
title was "a postulate
to support the exercise of sovereign power within the familiar feudal framework
of the common law" [490] . The framework
included the doctrine of tenures. Absolute and beneficial Crown ownership, a
plenum dominium , was established not by the acquisition of radical title
but by subsequent exercise of the authority of the Crown.

The mediaeval notion of tenure was expressed by the proposition that all land
was held directly or indirectly of the Crown. This
involved relationships of
reciprocal obligation between the respective parties at each level of the
feudal structure, at the peak
of which stood the sovereign. In an
understanding of these relationships, including those between intermediate or
mesne lord and
tenant, "proprietary language is out of place" and the
dominium of any particular dominus "was always a relative
thing" [491] . The concept of
ownership by the Crown of all land is a modern one, and its adoption in
legal theory may have been related to Imperial expansion in the seventeenth
and
eighteenth centuries, well after the decline of feudalism [492] . Writing in 1896, Professor Jenks said [493] :

"[T]he theory had almost died a natural death when it sprang to life again in
the most unexpected manner with the acquisition of
the great English colonies.
For if, as was the case, no subject could show a recognized title to any of the
countless acres of America
and Australia, at a time when those countries were
first opened up by white men, it followed that, according to this relic of
feudal
theory, these acres belonged to the Crown. It may seem almost
incredible that a question of such magnitude should be settled by
the revival
of a purely technical and antiquarian fiction."

In the law, fictions usually are acknowledged or created for some special
purpose, and that purpose should be taken to mark their
extent [494] .

The State of Queensland relies strongly upon a passage in the judgment of
Brennan J in Mabo [No 2] . In the course of discussing the
extinguishment of native title upon the vesting by Crown grant of an interest
in land inconsistent
with continued enjoyment of a native title in respect to
the same land, his Honour said [495] :

Queensland submits that the grant by the Crown of a lease necessarily involves
the acquisition by the Crown of the reversion which
is expectant upon the
expiry of the term. Accordingly, in granting the lease, the Crown exercises
sovereign power in such a fashion
as to assert absolute and beneficial
ownership out of which the lease is carved. That absolute and beneficial
ownership is, as a
matter of law, inconsistent with the continued right to
enjoy native title in respect of the same land.

It is necessary for the State to make good these propositions by their
adaptation to the statutory systems for the disposition of
Crown lands
established by the 1910 Act and the 1962 Act. It is here, in my view, that the
case for the State breaks down.

I have referred to the significant constitutional developments embodied in
mid-nineteenth century legislation, culminating in Queensland
with the 1867
Act, whereby settlement was achieved, in favour of the colonial legislatures,
of the conflicting fiscal and political
interests of the Imperial and local
authorities and of the executive and the colonial legislatures in the
disposition of the waste
lands of the Crown.

That settlement, embodied in ss 30 and 40 of the 1867 Act, was implemented in
successive statutes. These provisions include sub-ss
(1) and (2) of s 6 of the
1910 Act, which state [496] :

"(1) Subject to this Act, the Governor in Council may, in the name of His
Majesty, grant in fee-simple, or demise for a term of
years, any Crown land
within Queensland.

Section 209(1)(ii) of the 1910 Act empowers the Governor in Council to make
regulations which prescribe forms and "the conditions,
stipulations,
reservations, and exceptions that shall be inserted ... in grants, leases,
licenses, and other instruments".

The term "Crown Land" was defined in s 4 as follows [497] :

"All land in Queensland, except land which is, for the time being -

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

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

(c) Subject to any lease or license lawfully granted by the Crown: Provided
that land held under an occupation license shall be
deemed to be Crown land".

The phrase "[a]ll land in Queensland" was apt to include land in respect of
which the Crown held radical title. By that radical
title, as a postulate of
the doctrine of tenures and a concomitant of sovereignty, the common law
enabled the Crown to grant interests
in land to be held of the Crown and to
become absolute beneficial owner of unalienated land required for the purposes
of the Crown [498] . However, by the
constitutional settlement of the mid-nineteenth century, these prerogatives of
the Crown, part of the common law,
were displaced. Thereafter, all land in
Queensland was to be dealt with pursuant to statute. It was by legislation
that interests
in the land were to be granted by the Crown and land was to be
reserved or dedicated to "public purposes" [499] .

Section 6(1) of the 1910 Act conferred upon the Governor in Council power to
grant in fee simple or as a demise for a term of years
any land in Queensland,
save that land for the time being in fee simple, reserved for or dedicated to
public purposes or subject
to lease or licence lawfully granted by the Crown [500] . The statute maintained a legal regime
where, in respect of what it identified as leases, there was no need for the
creation in
the Crown of a reversionary estate out of which lesser estates
might then be granted. Rather, land which for the time being had
been subject
to any such "lease" lawfully granted under s 6, was, upon ceasing to be so and,
by reason of it now answering the definition
of "Crown Land" in s 4, liable
further to be dealt with by the Crown under s 6. Moreover, as will appear
later in these reasons,
whilst entry by the lessee was essential, at common
law, to the creation of the reversion, s 6(2) operated effectually to vest
interests
granted under the statute in advance of and without dependence upon
entry.

In addition, special provision was made by s 135 for consequences of
forfeiture or other premature determination of any lease or
licence. Section
135 provided:

"If the license or lease of any land is determined by forfeiture or other
cause before the expiration of the period or term for
which it was granted,
then, unless in any particular case other provision is made in that behalf by
this Act, the land shall revert
to His Majesty and become Crown land, and may
be dealt with under this Act accordingly."

It is apparent that the term "revert" is used in the particular sense of the
reassumption of the character of "Crown land" liable
to further disposition
under s 6. Further, as I seek to explain later in these reasons, whilst entry
was necessary to create the
common law reversion, compliance with s 6(2)
effectually vested without the need for prior entry, the interest granted.
Upon that
state of affairs, s 135 would operate in the above manner.

The 1962 Act contains similar provisions to ss 4, 6 and 135 of the 1910 Act [501] .

Accordingly, I would reject the submission for the State that the scheme of
the 1910 Act and the 1962 Act is such that, with respect
to the grant of
limited interests thereunder by the Crown, the necessary consequence is the
acquisition by the Crown of a reversion
expectant on the cesser of that
interest, thereby generating for the Crown that full and beneficial ownership
which is necessarily
inconsistent with subsisting native title. Whatever be
the interests or other rights created under s 6 of the 1910 Act and the 1962
Act, they "owe their origin and existence to the provisions of the statute" [502] .

Extinguishment by the general provisions of the Act

Putting to one side particular submissions concerning the pastoral lease
provisions, it is convenient first to consider whether
the general operation of
the 1910 statute necessarily involved the extinguishment of any native title in
relation to an area of Crown
land (as defined in s 4) which subsisted at the
commencement of the 1910 Act on 1 January 1911 [503] . Particular attention is required to two provisions.
The first is s 203 [504] . This states:

"Any person, not lawfully claiming under a subsisting lease or license or
otherwise under any Act relating to the occupation of
Crown land, who is found
occupying any Crown land or any reserve, or is found residing or erecting any
hut or building or depasturing
stock thereon, or clearing, digging up,
enclosing, or cultivating any part thereof, shall be liable to a penalty not
exceeding twenty
pounds." [505]

Section 203 is concerned with the protection of the interests of the Crown in
land which, for the time being, has not been granted
in fee, is not reserved
for or dedicated to public purposes, and is not subject to any lease or licence
granted by the Crown, other
than an occupation licence. This follows from the
definition of "Crown land" in s 4. On its face, s 203 would have rendered a
trespasser
any person who, in exercise of what now are to be characterised as
having been native title rights, occupied any of the very large
area of
Queensland falling within the definition of "Crown land" or conducted there any
of the activities referred to in s 203.
Were that so, the ground would be
provided for a submission as to the general extinction of native title in
respect of any land from
time to time falling within the definition of "Crown
land".
However, the progenitors of s 203 included s 91 of the Crown Lands
Alienation Act 1876 (Q). Section 91 stated:

" Any person unless lawfully claiming under a subsisting lease or
license or otherwise under this Act who shall be found occupying any Crown
lands
or land granted reserved or dedicated for public purposes either by
residing or by erecting any hut or building thereon or by clearing
digging up
enclosing or cultivating any part thereof or cutting or removing timber
otherwise than firewood not for sale thereon shall
be liable on conviction to a
penalty not exceeding five pounds for the first offence and not exceeding ten
pounds for the second
offence and not exceeding twenty pounds for the third or
any subsequent offence. Provided that no information shall be laid for
any
second or subsequent offence until thirty clear days shall have elapsed from
the date of the previous conviction." (emphasis
added)

In Mabo [No 2] , s 91 was construed by Brennan J [506] (with whose judgment Mason CJ and McHugh J agreed) and
by Deane and Gaudron JJ [507] , as being
directed to those who were in occupation under colour of a Crown grant or
without any colour of right and as not directed
to indigenous inhabitants in
occupation of land by right of what is now to be seen as their unextinguished
native title. Those indigenous
inhabitants were not by s 91 rendered
trespassers, liable to expulsion from Crown lands. They were not included in
the class or
description of persons to whom s 91 was directed. That was
because an indigenous inhabitant as identified above would not be "any
person".
This construction of s 91 was an important step in the reasoning which led to
the conclusion that the native title of the
Meriam people had not been
extinguished.

The 1910 Act and its predecessors were enacted at a time when there was doubt
whether at common law the Crown was obliged to proceed
by way of information
for intrusion because it could not maintain an action for ejectment. These
doubts since have been dispelled [508] .
However, they assist in perceiving the purpose of the first paragraph of s 204
in conferring a specific remedy for the removal of
trespassers from Crown
land.
Section 204 states [509] :

"Any Commissioner [510] or officer
authorised in that behalf by the Minister who has reason to believe that any
person is in unlawful occupation of any Crown land or any reserve,
or is in possession of any Crown land under colour of any lease or license that
has become forfeited,
may make complaint before justices, who shall hear and
determine the matter in a summary way, and, on being satisfied of the truth
of
the complaint, shall issue their warrant, addressed to the Commissioner or to
such authorised officer or to any police constable,
requiring him forthwith to
remove such person from such land, and to take possession of the same on behalf
of the Crown; and the
person to whom the warrant is addressed shall forthwith
carry the same into execution.

A lessee or his manager or a licensee of any land from the Crown may in like
manner make a complaint against any person in unlawful occupation
of any part of the land comprised in the lease or license, and the like
proceedings shall thereupon be had." (emphasis added)

The first paragraph of s 204 is concerned with the recovery of possession on
behalf of the Crown of land which is "Crown land" within
the definition of that
term in s 4. The second paragraph assists those holding from the Crown under
any lease or licence land which,
in the above sense, for the time being is not
Crown land.

In that regard it is convenient at this point to consider the decision in
Macdonald v Tully [511] . There, in
delivering the judgment of the Court, Cockle CJ said of a plaintiff who was a
lessee within the meaning of s 5 of The Tenders for Crown Lands Act 1860
(Q) that [512] :

"This right of the plaintiff to occupy was ... capable of being maintained
against any disturber, whether assuming to disturb in
virtue of an alleged
lease or otherwise."

The Full Court granted a motion for arrest of a judgment recovered in an action
against a nominal defendant representing the Crown.
The plaintiff's complaint
had been that the Crown had wrongly granted to a third party a lease of the
land in question and that,
in response to threats of trespass made by that
third party, the plaintiff had withdrawn from occupation of the land. The
judgment
was arrested on the footing that the plaintiff's case failed because,
rather than maintaining his own right, he had acquiesced in
the claim of right
made by the third party and had withdrawn from the runs without notice to or
knowledge on the part of the Crown.
This case illustrates that an end sought
to be achieved by legislation such as s 203 and s 204 of the 1910 Act was the
imposition
of legal order upon the confusion which developed with the expansion
of European settlement. In particular, the second paragraph
of s 204 conferred
some security of tenure against third parties, including settlers with
competing claims.

In each paragraph of s 204, the term "any person" was used to identify those
whose occupation of the Crown land was "unlawful".
Section 203 achieved the
same result by the phrase "not lawfully claiming". As indicated above, the
term "any person" is not apt
to include those claiming under native title. The
use of "unlawful" does not require a different construction. Rather, it
supports
the above construction.

The word "unlawful" may be used in various senses. Two of these were
discussed by Griffith CJ in Lyons v Smart [513] . His Honour spoke as follows with reference to the
unlawful importation and unlawful possession provisions of the Customs
Act 1901 (Cth) as they then stood [514] :

"Now, the word 'unlawfully' is a word commonly used in Statutes creating
crimes, misdemeanours and minor offences, and in such Acts
it is used in two
shades of meaning, one when referring to an act which is wrong or wicked in
itself - recognized by everybody as
wicked - as, for instance, when it is used
with reference to certain sexual offences, or with reference to acts which are
absolutely
prohibited under all circumstances; the other when referring to some
prohibition of positive law. The Customs Act 1901 has nothing to do
with what is right or wrong or virtuous. It contains certain arbitrary rules
which the legislature lays down.
What is wrong is wrong because the Act says
so, and for no other reason. The word 'unlawfully' must, therefore, there
being no
other relevant law, be read in that context as meaning 'in
contravention of the provisions of this Act.'"

The situation with which these appeals are concerned, the exercise of rights
attached to native title, would not, without more, be
in contravention of the
provisions of the 1910 Act, in the above sense of "unlawful" used by the Chief
Justice. Indeed, the question
at issue is whether, upon its true construction,
the 1910 Act contained clear and plain provisions necessarily inconsistent with
the continuation of native title. The answer to that question is not to be
found by passing through a gateway erected by a particular
construction of
"unlawful" in s 204.

In Lyons v Smart [515] , Barton J and
O'Connor J treated the ordinary meaning of an unlawful act as one "forbidden by
some definite law", whether statute
law or common law. Upon the present
hypothesis, there is no statute forbidding the exercise of rights of native
title and that title
is recognised by the common law of Australia. Finally, in
his dissenting judgment in Lyons v Smart , Isaacs J referred to that
construction of "unlawfully" as meaning without any bona fide claim of right or
colour of justification [516] . If s 204 be
interpreted in this way, a bona fide assertion of a claim to rights conferred
by native title would not render occupation
unlawful.

In the result, whichever shade of meaning is given to that term as used in s
204, as to which it is unnecessary to express any concluded
opinion, s 204 did
not render indigenous inhabitants relying upon their native title liable to
removal from land which was for the
time being Crown land or land comprised in
a lease or licence from the Crown, by warrant issued at the instance either of
officers
of the Crown or the lessee or licensee.

Further, the reasoning which leads to the construction of s 203 which does not
render those holding native title trespassers upon
the subject lands applies at
least as forcefully to the construction of the phrase "unlawful occupation of
any Crown land" in the
first paragraph of s 204. This is not to be read as
directed to authorising the Crown to expel indigenous inhabitants from
occupation
of land enjoyed in exercise of their unextinguished native title.
That being so, no different interpretation should be given to the
phrase
"unlawful occupation" in the second paragraph of s 204. The presumption is
that the same meaning should be given to the same
phrase where it occurs in the
same provision and the context here does not suggest the contrary [517] .

Finally, the terms of s 204 are of some assistance in an analysis of those
particular forms of tenure created by the 1910 Act which
are identified by
expressions using the terms "lease" and "licence". The second paragraph of s
204, which must be read with the
first, authorises a lessee and licensee of any
land from the Crown to take proceedings in the same manner as a Commissioner or
officer
authorised by the Minister. If successful, this will lead to the issue
of a warrant for the removal of the unlawful occupiers and
thereafter to what
is identified as the taking of "possession" of the subject land "on behalf of"
the lessee or licensee. The section
treats indifferently the nature of the
enjoyment of such a lessee or licensee by use of the same term, "possession",
to identify
it.

On the other hand, at common law the term "exclusive possession" is used as a
touchstone for the differentiation between the interest
of a lessee and that of
a licensee, who has no interest in the premises. "Exclusive possession" serves
to identify the nature of
the interest conferred upon the lessee as one
authorising the exclusion from the demised premises (by ejectment and, after
entry
by the lessee, by trespass) not only of strangers but also, subject to
the reservation of any limited right of entry, of the landlord [518] . As Windeyer J put it, a tenant cannot be deprived of
the rights of a tenant by being called a licensee [519] .

Accordingly, s 204 points towards a construction of the 1910 Act which does
not treat as coincident with the characteristics of
"leases" and "licenses" as
understood at common law, those of the tenures created by the statute and
identified therein by terms
which include one or other of those words.

Provision corresponding to s 203 and s 204 is made in s 372(1) and s 373(1)
respectively of the 1962 Act. The conclusions reached
with respect to the
earlier provisions apply to their later counterparts.
Pastoral leases

It is appropriate to turn to consider more closely the particular provisions
of the legislation with respect to pastoral leases.
The question is whether it
follows upon a proper construction thereof and by reason of the steps taken
thereunder by the issue of
the Mitchellton Pastoral Leases and the Holroyd
River Pastoral Lease, the necessary extinguishment of any subsisting native
title.

Attention is to be focused upon the terms of the legislation and of the
instruments themselves. In that examination, the term "exclusive
possession"
is of limited utility. As has been indicated, by s 204 the 1910 Act created
its own remedy in the nature of ejectment
and made it available not only to
lessees but also to licensees of any land from the Crown.

To reason that the use of terms such as "demise" and "lease" in legislative
provisions with respect to pastoral leases indicates
(i) the statutory creation
of rights of exclusive possession and that, consequently, (ii) it follows
clearly and plainly that subsisting
native title is inconsistent with the
enjoyment of those rights, is not to answer the question but to restate it.

The term "lease" may be used in a statute in a limited sense only. Thus, a
lease enforceable in equity under the doctrine in Walsh v Lonsdale [520] may not answer the description of "lease"
in a particular statute [521] . Statute, such
as the Landlord and Tenant (Amendment) Act 1948 (NSW), may create
between parties who were landlord and tenant a relationship for the
identification of which "no new terminology
... has come into existence" [522] . The phrase "statutory tenant" then may
be used to identify these rights and obligations which subsist only by virtue
of the legislation
and are unknown at common law [523] .

In the present dispute, the necessary analysis discloses an operation of the
legislation comparable to that identified by Isaacs
J in respect to conditional
purchases under the Crown Lands Consolidation Act 1913 (NSW). In
Davies v Littlejohn [524] , his Honour
said of tenures created by such legislation:
"It creates them, shapes them, states their characteristics, fixes the mutual
obligation of the Crown and the [grantee], and provides
for the mode in which
they shall cease to exist".

More recently, in R v Toohey; Ex parte Meneling Station Pty Ltd [525] , Mason J spoke to similar effect. The
question there was whether a grazing licence granted pursuant to the Crown
Lands Act 1931 (NT) to permit the grazing of stock on Crown land conferred
an "estate or interest" in the subject land within the meaning of
the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), so as to
take the grazing licence beyond the reach of its provisions as to grants to
Aboriginal Land Trusts [526] . In deciding
that a grazing licence conferred no such "estate or interest", Mason J
determined that the rights of the holder of
such a licence fell short in two
respects of the concept of property or proprietary rights expressed in the
well-known analysis by
Lord Wilberforce in National Provincial Bank Ltd v
Ainsworth [527] . First, although a
licence might be granted for up to one year, it was liable to cancellation by
the Minister on three months' notice
in writing and without any default by the
licensee. Secondly, the licence was not assignable, thereby emphasising the
personal nature
of the rights conferred by it. In the course of this analysis,
Mason J said [528] :

Two further points should be made here. The first is that land law is but one
area in which, whilst statute may appear to have
adopted general law principles
and institutions as elements in a new regime, in truth the legislature has done
so only on particular
terms. A statutory body in which a fund is vested may be
styled as a "Trust", or may be given by its constituent statute the investment
powers of trustees. In neither case may contributors to the fund have the
beneficial interest of an ordinary cestui que trust [529] . On the other hand, from an express statement that a
statutory body is not bound by the law relating to the administration of trust
funds by trustees, it does not necessarily follow that in other respects this
body is a trustee in the ordinary sense of moneys held
by it [530] . In such ways the legislature may create entities
which have some but not all of the characteristics of a trust. In each case
the
true construction of the law determines the degree of the analogy.
Accordingly, there is nothing remarkable in the use of a term
such as "lease"
or "licence" to identify new institutions not fully to be identified with
either term as understood at common law.

The second point is that it is unhelpful to approach the issues of
construction which arise on these appeals by asking whether the
1910 Act and
the 1962 Act each is a "code" and, after giving a negative answer, to conclude
that a pastoral lease for a particular
period has the same incidents of a lease
for such a term under the general law. Like native title itself [531] , the interests created by the 1910 Act
and the 1962 Act take their place in the general legal order. As such (and
subject to the
operation of doctrines of illegality [532] ), those interests may be the object of rights and
obligations created inter partes and supported by the law of contract.
In O'Keefe v Williams [533] , this
Court held that there was an implied covenant by the Crown not to derogate from
the rights of a plaintiff under an "occupation
licence" granted under the New
South Wales Crown lands legislation. For breach of a contractual obligation to
deal in a statutory
interest in or with respect to land, a remedy in the nature
of specific performance may be appropriate [534] . In the circumstances of the particular case and
depending upon the particular incidents attached by statute to the interest in
question, there may be an equity to relief against forfeiture of that
interest [535] . The exercise of statutory
powers with respect to the granting of interests thereunder which are conferred
upon the executive may
be attended by obligations to afford procedural
fairness, and equity may, by injunction, restrain eviction of the plaintiff
pending
the determination of an application for a further grant [536] .

In such ways, the legal system may operate upon pastoral leases and other
interests created under the 1910 Act and the 1962 Act.
However, in so doing,
the legal system takes those interests as they are found in the statute. It
does not first so classify those
interests that they fit within one or other
category of estate or interest already known to the general law.

It is true that s 6(1) of the 1910 Act speaks of a "demise for a term of
years", as well as the grant in fee simple. However, in
s 6(2) the same
formalities are prescribed for both a "grant" and a "lease". Moreover, under
this provision the lease is to be made
in the prescribed form and, being so
made, is stated as being "valid and effectual" both to convey to and to vest
"in the person
therein named the land therein described for the estate or
interest therein stated". Section 6(2) is not merely a procedural provision.
By stating that compliance with this requirement was effectual to vest the
interest in question, it marks off, to a significant degree,
pastoral leases
from leases granted under the common law.

If the Mitchellton Pastoral Leases were treated as attended in their creation
by the same requirement as those attending the creation
of leases under the
common law, neither of those instruments would have vested the term in the
lessees. At common law, the term
would have vested only upon entry and there
was no such entry. Before entry, the lessees would have had merely an interest
in the
term, or interesse termini . With effect from 1 December 1975 [537] , the doctrine of interesse termini
was abolished by s 102 of the Property Law Act 1974 (Q) and s 12 of the
Residential Tenancies Act 1975 (Q) [538] . This was after the grant of the Holroyd River
Pastoral Lease. The interesse termini gave not an estate but a right of
entry [539] . This reflected the origin in
covenant of the rights of the lessee against the lessor, so that, if the lessor
failed to deliver
possession, the lessee could not bring a real action. The
remedy was one for breach of covenant [540] .
Entry was essential to create the estate in reversion [541] . However, as indicated earlier in these reasons, the
1910 Act operated without the creation in favour of the Crown of what at common
law would be regarded as a reversionary estate.

Part III of the 1910 Act was headed "PASTORAL TENURES". Division I thereof
(ss 40-44) was headed " Pastoral Leases ", and Div II (ss 45-47) was
headed " Occupation Licenses ". Occupation licences were granted by the
Minister (s 46) and pastoral leases by the Governor in Council (s 6).
Occupation licences,
unless renewed for the next year, expired on 31 December
of the year of grant (s 47(1)). The term of any pastoral lease was not
to
exceed 30 years (s 40(2)). Pastoral leases might be mortgaged (ss 156, 158,
159) [542] and surrendered (s 122).

The pastoral leases and occupation licences, as the two species of pastoral
tenure, were treated without distinction in various
provisions of the 1910 Act
outside Pt III. Reference already has been made to s 204. Pastoral leases and
occupation licences might
be transferred to qualified persons with the
permission of the Minister (s 166). In respect of both species of interest,
the same
provision (s 129) conferred a power of forfeiture for default in
payment of rent and acceptance by the Crown of any rent or other
payment did
not operate as a waiver of such forfeiture (s 131(2)). The expression "the
land shall revert to His Majesty and become
Crown land, and may be dealt with
under this Act accordingly" is used in s 135 in respect of determination of
either pastoral lease
or licence before the expiration of the period or term of
grant; under the common law, determination of a licence would not ordinarily
be
described as bringing about a reversion of the land to the licensor. Finally,
in Pt III itself, s 43(1) requires of every pastoral
lease that it be subject
to a condition as to payment of "rent", and s 47(2) stipulates the "rent" for
an occupation licence.

A condition might be imposed upon a pastoral lease that the land be enclosed
and kept enclosed with a rabbit-proof fence (s 40(1)).
No such condition was
imposed in the Mitchellton Pastoral Leases. At the time of the grant of the
second of the Mitchellton Pastoral
Leases in 1919, s 43(iii) [543] provided, in certain circumstances, for the inclusion
of a condition of personal residence during the first seven years of the term.
No such condition was imposed in the second of the Mitchellton Pastoral Leases.
On the other hand, in Pt IV (ss 48-114), headed "SELECTIONS",
there were
obligations of fencing (ss 78-83) and detailed provision as to conditions of
personal residence and occupation (ss 86-93).

Each of the Mitchellton Pastoral Leases was expressed to "demise and lease"
the land "for pastoral purposes only" and to be subject
to the conditions and
provisos in Pt III Div I of the 1910 Act and to the other provisions of that
statute and to The Mining of Private Land Act 1909 (Q), and to any
Regulations made or thereafter to be made under that Act or the 1910 Act. The
Court was furnished with the
relevant
General Regulations under s 209 of the
1910 Act [544] . These indicate that both the
Mitchellton Pastoral Leases were in Form 3 prescribed by reg 4 and that the
expression "for pastoral
purposes only" appeared in Form 3. The Form, like the
two Mitchellton Pastoral Leases, contained what was styled a "reservation"
in
favour of the Crown of a right of access to search for or work gold and
minerals and there was a further "reservation" of a right
of access in favour
of any person authorised in that behalf by the Governor in Council to go upon
the land "for any purpose whatsoever,
or to make any survey, inspection, or
examination of the same".
Section 209(1)(ii) of the 1910 Act empowered the Governor in Council to make
the General Regulations prescribing Form 3 and this
fell within the terms of
the central provision in s 6(2). This stated that a grant or lease "shall be
made subject to such reservations
and conditions as are authorised or
prescribed by this Act or any other Act, and shall be made in the prescribed
form ...". The
term "reservation" in strict usage identifies something newly
created out of the land or tenement demised and is inappropriate to
identify an
exception or keeping back from that which is the subject of the grant [545] . However, in accordance with the
Australian usage referred to by Windeyer J in Wade v New South Wales Rutile
Mining Co Pty Ltd [546] , "reservation"
was apt in Form 3 to identify that which was withheld or kept back by the
grants made by the Governor in Council under
the 1910 Act. The adoption of
Form 3 with this text does not necessarily support a proposition that without
these "reservations"
the holder of the pastoral lease would have had the
entitlement to refuse entry or re-entry to all persons whatsoever.

The ordinary meaning of the phrase "for the purpose of pasture" is the feeding
of cattle or other livestock upon the land in question [547] . The phrase "for pastoral purposes" would include the
feeding of cattle or other livestock upon the land but it may well be broader,
and encompass activities pursued in the occupation of cattle or other livestock
farming. Even upon this broader interpretation,
it cannot be said that there
have been clearly, plainly and distinctly authorised activities and other
enjoyment of the land necessarily
inconsistent with the continued existence of
any of the incidents of native title which could have been subsisting at the
time of
these grants of the pastoral leases.

The foregoing supports four propositions. First there is apparent the mixing
together or combination in the statutory regime for
pastoral leases and
occupation licences of elements which in an analysis under the common law of
leases and licences would be distinct [548] .
Secondly, the terms of the 1910 Act providing for pastoral leases were apt to
identify the characteristics and incidents of that
statutory interest.
Thirdly, those characteristics were not such as to approximate what under a
lease as understood at general law
may have been a right to exclude as
trespassers persons exercising rights attached to their subsisting native
title. Fourthly, the
contrary conclusion, that native title holders were
rendered trespassers as a consequence of rights given by pastoral leases, would
be at odds with the interpretation of the phrase "unlawful occupation" which,
as indicated earlier in these reasons, is to be given
its use in s 204 of the
1910 Act.

I turn to the Holroyd River Pastoral Lease. Part III (ss 49-80) of the 1962
Act is headed "PASTORAL TENURES", and Div I (ss 49-65)
is headed " Pastoral
Leases ". There are two pastoral tenures in addition to pastoral leases,
stud holdings (ss 66-74) and occupation licences (ss 75-80). The
term "rent"
is used in respect of occupation licences (s 79) as well as pastoral leases (s
61). There was a statutory maximum of
30 years as the term of a pastoral lease
(s 53(1)). The prescribed form for pastoral leases differed from that under
the 1910 Act
in not expressing the grant as "for pastoral purposes only".
Other differences between the two regimes are identified by Gaudron
J in her
reasons for judgment.

As indicated earlier in these reasons, the land carried approximately one
beast to 60 acres. The cattle were run under open range
conditions. At the
time of the relevant grant in 1974, there appear to have been six sets of
roughly constructed mustering yards
but no other improvements upon the land.
Section 14 of the 1962 Act obliged the grantees to perform conditions imposed
upon them
by the statute or the grant [549] .
The instrument contained conditions requiring, within five years, the sowing of
at least 40.5 hectares as a "seed production area"
and the construction of an
airstrip, 90 miles of internal fencing, one set of main yards and dip, three
earth dams and a manager's
residence, with quarters for five men and a shed.
There was a further condition requiring, within that period, the enclosure of
the
holding with a good and substantial fence. This was unwelcome to the
grantees. It was not common practice on Cape York to boundary
fence.
Apparently as the result of an exercise of the discretion conferred upon the
Minister by s 64(3) of the 1962 Act, the grantees
later were relieved from
compliance with this condition [550] . The
airstrip was constructed and the Minister appears to have accepted that there
was compliance with the requirement for dam construction.
The other conditions
were not complied with by the grantees. Failure to comply with conditions
required by the Holroyd River Pastoral
Lease rendered it liable to
determination by forfeiture (ss 14(1) and 295 of the 1962 Act). Upon such
determination, the land reverted
to the Crown and became Crown land available
for re-grant (ss 299(1), 6(1)). The person in occupation would be obliged by s
299(2)
to give to the Land Commissioner peaceful possession of the land and of
all improvements thereon. Liability to forfeiture might
be waived by the
Minister (s 297(2)).

Despite some differences between the two statutory regimes and subject to one
qualification, the same conclusions apply to the Holroyd
River Pastoral Lease
as those reached with respect to the Mitchellton Pastoral Lease. In none of
these instances was there clear,
plain and distinct authorisation by the
relevant grant of acts necessarily inconsistent with all species of native
title which might
have existed. It does not appear that the statutory
interests could be enjoyed only with the full abrogation of any such native
title.

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

It remains to consider two authorities of this Court which were cited in
opposition to the submissions presented by the Wik Peoples
and the Thayorre
People. In American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd [551] , this Court was concerned with the
construction of Pt XI (ss 334-361) of the 1962 Act. Division I is headed
" Deeds of Grant in Trust and Reserves " and Pt XI deals generally with
grants, reserves and reservations for public purposes. As was indicated in
argument in that case [552] , the provisions
of Pt XI, in particular s 343 dealing with leases by a Trustee and s 347
dealing with the transfer, mortgage and
subletting of leases, are to be
contrasted with the detailed provisions in Div VIII (ss 273-293) of Pt X.
These deal with subleases,
mortgages, transfers and other dealings with certain
holdings, including pastoral leases created under earlier Parts of the Act.
Section 343 and the sections following expressly mentioned only one interest,
identified as a lease. It was held that by adopting
the terminology of
leasehold interests the legislature must be taken to have intended the
operation of the incidents of corresponding
interests at common law as modified
by the statute [553] . The immediate issue
concerned the power of a sublessee to deal with its interest, the subject
premises being a reserve having upon
it a kiosk and other buildings adjacent to
a swimming area at Southport. I would not treat that decision as authority
going beyond
the particular operation of Pt XI of the 1962 Act. The decision
is further discussed by Toohey J in his judgment in the present
case. I
respectfully agree with what is said there by his Honour.

The second authority is O'Keefe v Williams [554] . I agree with the analysis of this case by Gaudron J
in her Honour's reasons for judgment.

Conclusions

Of the questions separately determined by Drummond J, Questions 4 and 5 arise
in this Court only upon the appeal by the Wik Peoples.
These Questions
concerned the claims against Comalco and Pechiney. The appeal by the Wik
Peoples in respect of the answers to those
Questions should be dismissed.

The Wik Peoples also appeal in respect to the answer to Questions 1B and 1C.
The Thayorre People appeal with respect to the answer
to Question 1C. Drummond
J answered in the affirmative that element in Question 1B which asked whether
the grant of the Holroyd
River Pastoral Lease necessarily extinguished all
incidents of Aboriginal title or possessory title of the Wik Peoples in respect
to the land demised thereunder. His Honour also answered that element of
Question 1C which asked whether the grant of either of
the Mitchellton Pastoral
Leases necessarily extinguished all incidents of Aboriginal title or possessory
title of the Thayorre People
in respect to the land demised thereunder by
stating that the grant of the first Mitchellton Pastoral Lease extinguished
Aboriginal
title.

My conclusion is that none of these grants necessarily extinguished all
incidents of native title which then were subsisting. Accordingly,
on these
appeals no further question remains as to the existence of any doctrine as to
suspension of native title and the revival
thereof upon expiration of these
grants. I say nothing upon that subject. There should be no further delay in
preparing for trial.
The particular elements of Questions 1B and 1C to which I
have referred are contained in each case in par (d). This asks whether
the
grant of the pastoral lease in question necessarily extinguished
all incidents of native title. The form of par (d) thus is important.
However, both Question 1B and Question 1C were so drawn that consideration
of
par (d) only arose upon an affirmative answer to the question posed in par (b).
This asked whether the respective pastoral leases
conferred "rights to
exclusive possession on the grantee". In my view, as indicated earlier in
these reasons, the posing of a question
in those terms may have distorted the
essential issues and par (d) should have stood independently for decision. On
the other hand,
there was no challenge at the hearing before this Court with
respect to questions and answers to par (a) in Questions 1B and 1C [555] .

I would deal with this situation in respect of both Question 1B and Question
1C by answering par (b) "No", par (c) "Does not arise",
and par (d) "Strictly
does not arise, but is properly answered no".

Each appeal should be allowed in part. In the appeal by the Wik Peoples, the
answers given by Drummond J to Question 1B and Question
1C should be set aside
and replaced by answers reflecting the above conclusions. On the appeal by the
Thayorre People, this is required
only in respect of Question 1C. Costs in
this Court should be ordered as proposed by Toohey J. The costs of the
proceedings below
should be remitted for further consideration by the Federal
Court.

KIRBY J.

TABLE OF CONTENTS

INTRODUCTION

The Mabo decision and its aftermath 173
Procedural context 179

PASTORAL LEASES

Common ground 182
Mabo [No 2] does not resolve the claims 192
Pastoral leases 197
The pastoral leases in this case 203
Mere exercise of sovereignty doctrine rejected 205
Factual inconsistency doctrine rejected 208
Arguments for extinguishment of native title 211
Significance of non-entry 215
Native title was not necessarily extinguished 216

STATUTORY AGREEMENTS

Agreement with Comalco authorised by statute 226
Decision of the Federal Court 229
Attack on the Agreement: Implications of the Comalco Act 230
Statutory authorisation and its effect 232
The lease was valid 234
Pechiney and the "Access Agreement" 235

ORDERS 237

These proceedings, removed into this Court from the Federal Court of Australia,
concern a claim by Aboriginal Australians to "native
title" [556] in respect of certain land in Northern Queensland.
They raise the issue of the effect on such title of pastoral leases granted
under
Queensland legislation. Also raised is a challenge to the effectiveness
of two agreements with mining consortia which, by statute,
are given the force
of law as if they were enacted by the Queensland Parliament.

INTRODUCTION

The Mabo decision and its aftermath

Before the decision of this Court in Mabo v Queensland [No 2] [557] (" Mabo [No 2] "), the foundation of
land law in Australia was as simple as it was clear. From the moment that the
lands of Australia were successively
annexed to the Crown, they became "in law
the property of the King of England" [558] . It was so in respect of Eastern Australia when
Governor Phillip received his first commission from King George III on 12
October
1786. It was so after the first settlement of the English penal colony
was established in Sydney in 1788 [559] . No
act of appropriation, reservation or setting apart was necessary to vest the
title in the land in the Crown. All land, including
all waste lands of the
colony, were "without office found, in the Sovereign's possession ... as his or
her property" [560] . Land interests were
thereafter enjoyed only as, or under, grants made by the Crown. This doctrine,
providing the ultimate source
of all interests in land in Australia, was upheld
by early decisions of the courts of the Australian colonies. But it was also
accepted [561] , affirmed [562] and reaffirmed [563]
by this Court. Although the indigenous inhabitants of Australia (Aboriginals
and Torres Strait Islanders) "had neither ceded their
lands to the Crown nor
suffered them to be taken as the spoils of conquest" [564] , their legal interests in, and in relation to, the
annexed land were considered to be extinguished. If they were to enjoy any
such
interests thereafter, they could do so only by, or under, a grant from the
Crown: the universal repository of the ultimate or "radical"
title [565] .

This apparently unjust and uncompensated deprivation of pre-existing rights
distinguished the treatment by the Crown of the indigenous
peoples in Australia
when compared to other settlements established under the Crown in the American
colonies [566] , Canada [567] , New Zealand [568]
and elsewhere. The principle was criticised [569] . However, from the point of view of the settlers,
their descendants and successors, it was part of Australia's historical
reality.
From the point of view of legal theory, it had a unifying simplicity
to commend it: No legally enforceable rights to land pre-existing
annexation
and settlement. No title to land except by or under a Crown grant made out of
the royal prerogative of the Sovereign
in the earliest days and thereafter
pursuant to enabling legislation.

Into this settled and certain world of legal theory and practicality, the
decision in Mabo [No 2] [570]
intruded. By that decision, this Court unanimously affirmed that the
Crown's acquisition of sovereignty over the territories which
now comprise
Australia might not be challenged in an Australian court. Upon the acquisition
of such sovereignty, the Crown acquired
a radical title to the land. But, by
majority [571] , the Court held that what it
called "native title" survived the Crown's acquisition of sovereignty and of
the radical title. However,
such title was subject to extinguishment where it
was shown that the sovereign power, acquired by annexation, had been exercised
in respect of land in a way inconsistent with the continuance of the native
title [572] .

The decision in Mabo [No 2] called forth a great deal of legal
commentary [573] . It resulted in the passage
of the Native Title Act 1993 (Cth). Various State Acts were also
enacted, including the Native Title (Queensland) Act 1993 (Q). In
Western Australia v The Commonwealth (Native Title Act Case) [574] , this Court upheld the general validity
of the federal Act as resting upon s 51(xxvi) of the Constitution . That
paragraph empowers the Federal Parliament to make laws with respect to the
"people of any race for whom it is deemed necessary
to make special laws". It
was held that the Act was "special" in that it conferred on the holders of
native title benefits protective
of that title, otherwise vulnerable to
extinction
in accordance with the holding in Mabo [No 2] [575] .

The Native Title Act 1993 (Cth) did not purport to provide for the
consequences for native title of the grant of pastoral leases such as are in
question in
this appeal. In the Preamble to the Act, the Parliament expressed
its understanding of the decision of this Court in Mabo [No 2] to
include a holding that [576] :

"... 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."

The Act provided for the recognition and protection of native title [577] . This Court has had occasion to
emphasise the beneficial character of the procedures established by the Act,
in North Ganalanja Aboriginal Corporation v State of Queensland ("the
Waanyi Case ") [578] . That was an
appeal from the Full Court of the Federal Court of Australia [579] . Although the holding of the Federal Court in the
Waanyi Case included a holding about the effect, in law, of the grant of
a pastoral lease in Queensland, this Court, by majority [580] , considered that it was then premature to determine the
correctness of the Federal Court's opinion on the "pastoral lease question".
The application on behalf of the Waanyi people was returned to the National
Native Title Tribunal established by the Native Title Act 1993 (Cth) so
that the procedures of that tribunal might be correctly followed.
It did not take long for an opportunity to present itself again whereby this
Court would be asked to consider the effect of pastoral
leases upon the native
title found, in Mabo [No 2] [581] , to have survived the annexation by the Crown of
the Australian lands.

In The Wik Peoples v State of Queensland [582] , a single judge of the Federal Court of Australia
(Drummond J) answered a number of questions of law raised by the claims of the
Wik Peoples ("the Wik"- the present appellants) and also the Thayorre People
("the Thayorre"- the 19th respondents) to an area of
land in Northern
Queensland affected by earlier grants of pastoral leases under Queensland law.
The several questions isolated for
consideration by Drummond J, and answered by
him, concerned:

1. Whether the power of the Queensland Parliament to enact laws providing for
pastoral leases without preserving native title rights
was limited in law. (The
State constitution question).

2. Whether a grant of a pastoral lease in Queensland, without express
reservation of native title rights, necessarily extinguished
native title,
including that of the Wik and the Thayorre. (The pastoral leases question).

3. Whether the passage of the Mining on Private Land Act 1909 (Q) and/or
the Petroleum Act 1915 (Q) had extinguished any native title rights
which the applicants may have had in minerals and petroleum beneath the subject
land. (The mineral rights question).

4. Whether the applicants could claim relief against the State of Queensland
and Comalco Aluminium Ltd if a grant by the State of
Queensland to that company
of rights in land, including mining rights, extinguished any native title
rights which the applicants
may have had in the land, having regard to the
Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q)
and the agreement entered into pursuant to that Act. (The Comalco Agreement
question).

5. A similar question to the Comalco Agreement question in relation to the
entitlement of the Wik and the Thayorre to maintain claims
against the State of
Queensland or Aluminium Pechiney Holdings Pty Ltd (the 5th respondent) having
regard to the Aurukun Associates Agreement Act 1975 (Q) and the Aurukun
Associates Agreement purportedly made under that Act. (The Aurukun Agreement
question).

When Drummond J answered each of the foregoing questions adversely to the Wik
(and consequentially to the interests of the Thayorre)
an appeal was
immediately taken to the Full Court of the Federal Court of Australia. An
application for removal of that appeal into
this Court was heard and granted on
22 March 1996. However, the issues for decision in the appeal were narrowed.
The State constitution
question and the mineral rights question were not
pressed. This left as the active issues in the appeal the pastoral leases
question
and the Comalco and Aurukun Agreement questions. I shall group the
latter together to be dealt with in due course as the "Statutory
Agreements
question".

The ultimate questions for decision in this Court are relatively simple and
confined. Did the pastoral leases granted in the lands
claimed by the Wik and
the Thayorre, either by the fact of grant or the terms thereof, extinguish the
native title rights of the
Wik and the Thayorre? Could the claim brought by
the Wik against the State of Queensland and the companies mentioned in the
Statutory
Agreements be maintained in law, notwithstanding the steps
purportedly taken under the legislation authorising the making of those
agreements to give them the force of statute?

It might be thought that such relatively straightforward questions would yield
simple answers. Whilst I regard the Statutory Agreements
question as being
relatively simple to answer, the pastoral leases question is not. Most of the
oral hearing before this Court was
devoted to its complexities, as were the
written submissions and documentation filed by the parties, numbering many
thousands of
pages. These have taken the Court into the history and incidents
of feudal land tenures in England; the reception of land law into
the
Australian colonies, and specifically into Queensland; the history of the
special legislative measures enacted in colonial and
post-colonial Queensland
to provide for pastoral leases; and the decisions of many courts on the
meaning and effect of the statutory
provisions in question.

For the purposes of comparison, the Court was also taken to colonial practice
and legislation as well the modern statutes affecting
pastoral leases in the
States of Australia and in the Northern Territory. The State of Queensland was
the first respondent to the
appeal. All of the other States (except New South
Wales and Tasmania) and the Northern Territory intervened. The Court received
detailed submissions on behalf of the Commonwealth (second respondent) and
contradictory submissions for the Aboriginal and Torres
Strait Islander
Commission (13th respondent). It received submissions from a number of
Aboriginal Councils concerned about the possible
implications of the resolution
of the pastoral leases question for jurisdictions other than Queensland. It
also heard submissions
from various interests representing pastoralists who
might be affected were the Wik to succeed. Some of these submissions drew upon
decisions of courts of other common law countries upon problems described as
analogous, being the resolution of conflicts about legal
claims upon land made
on behalf of indigenous peoples [583] and the
claims of pastoralists and their suggested foreign counterparts [584] .

Procedural context

At the outset it is appropriate to say something about the procedural context
in which the issues before the Court arise.

In June 1993, following Mabo [No 2], proceedings were commenced in the
Federal Court on behalf of the Wik. By those proceedings, the Wik, an
Aboriginal clan or group,
sought a declaration as to their native title rights
in relation to a large area of land in Northern Queensland. The Wik also
claimed
damages and further relief in the event that it was found that such
rights had been extinguished. One of the respondents to the
claim was the
Thayorre, another Aboriginal clan or group. The Thayorre cross-claimed for
similar declarations in respect of lands
which overlapped, in part, those the
subject of the claim of the Wik.

Subsequently, in January 1994, the Native Title Act 1993 (Cth)
commenced operation. The Wik made an application to the Federal Court for the
adjournment of its proceedings under the general
law so that they could apply
to the Tribunal established under the new Act for a determination that they
enjoyed "native title" as,
in effect, they were claiming in the Federal Court
action. The application for adjournment, and subsequent procedural issues,
were
all dealt with in the Federal Court by Drummond J [585] . Some of the respondents supported the application or
did not oppose it. Others opposed it on the ground of the fragmentation of
the
litigation. On 11 March 1994, Drummond J ruled that the Wik could divide the
proceedings. But to avoid vexation of the resisting
respondents, the Wik were
required to file and serve an undertaking not to prosecute further their
original claim for native (called
"Aboriginal") or possessory title. That
application was adjourned but with liberty to any party to restore it depending
on the prosecution
and outcome of the claim under the Act [586] .

The Wik brought proceedings under the Act for the determination of their claim
to native title. On 18 April 1994, Drummond J heard
argument as to whether
some of the issues raised should not be disposed of as preliminary questions.
Much the same course was followed
as in the Waanyi claim, ie it was ordered
that a number of issues arising from the proceedings be dealt with as
preliminary questions [587] . This course was
followed before the clarification by this Court, of the procedural entitlement
of claimants, such as the Wik, as
explained in the Waanyi Case [588] . No party has taken any point on this
procedural irregularity.

The Wik accepted that some issues in their claim were appropriate for
preliminary determination. However, they submitted that it
was first necessary
for evidence to be taken. A difference arose as to whether that evidence
should be more than formal and documentary
evidence. The Wik sought to be
released, in part, from their undertaking to the Federal Court so that they
could pursue part of
their claim under the general law, outside the Act. This
application was refused on 26 May 1994. Instead, Drummond J, with the
assistance of the parties, formulated questions on the five issues identified
above. Drummond J's rulings were challenged before
the Full Court of the
Federal Court. Whilst expressing no opinions on the substantive issues, the
Full Court declined to disturb
the interlocutory orders which Drummond J had
made [589] . Some of the submissions of the
Wik before the Full Court appear similar to those subsequently upheld by this
Court in the Waanyi Case [590] .
However, the Full Court was of the view that the legal questions were important
and that it was in the interests of all parties
that they be determined as
quickly as possible [591] .

It was against this background that Drummond J came to the determination of
the questions presenting the issues which he had separated
for resolution [592] . Those questions, so far as still
relevant to the proceedings removed into this Court, are set out in the reasons
of Brennan CJ.
I do not repeat them. As I have stated, all of them were
answered by Drummond J adversely to the interests of the Wik [593] and some only of them are now contested.

The point of explaining this protracted procedural saga is now reached. The
notice of appeal filed by the Wik (as amended) sets
out those grounds of appeal
which are still in contest. Certain of the grounds challenge the correctness
of Drummond J's procedural
approach. They assert that his Honour erred "in
treating the question [of the effect of the pastoral leases] as a question only
of law and not a question of fact or a mixed question of fact and law". They
dispute that the questions were "capable of determination
in the absence of a
determination of facts as to the nature and extent of native title rights and
interests". As argued, I did not
take these grounds of appeal to seek to
reagitate the discretionary procedural decision of Drummond J, as such. Whilst
appellate
courts retain their supervision to correct error in such orders, they
are most hesitant to disturb them, even where, in effect, those
orders have the
consequences of striking out or otherwise terminating the entire proceeding [594] . Instead, I took the Wik to be raising a
point of substance. This was that, upon one view of the law, pastoral leases
of the kind
here in question do not, merely by grant, extinguish the native
title of the Wik. Such extinguishment depends upon the elucidation,
by
evidence, of complex facts. Relevant facts might include, for example, whether
the lessee entered into possession. Alternatively,
they might include a
painstaking examination of the conduct of successive lessees and successive
generations of the Wik to see whether
in fact there was such an
inconsistency between the title under the pastoral lease and native title as to
extinguish the latter.

It will be necessary to return to this point of substance. I depart the
procedural complaint by the Wik over the course followed
in the Federal Court
by endorsing the remarks of Sir Thomas Bingham MR in E (A Minor) v Dorset
County Council [595] . An order to strike
out an action or to separate and answer adversely to the plaintiff preliminary
questions having the same effect,
may not be an appropriate course where the
source of doubt as to the "legal viability of a cause of action" is that "the
law is in
a state of transition". In such a case it may be desirable to reach
conclusions on the law after conclusions have been reached on
the facts.
Evidence may sometimes add substance and understanding to the legal claim,
depending on what it is.

Against this background, the Wik made it clear to this Court that the sole
relief they sought was that the appeal be allowed and
new answers given to the
questions formulated by Drummond J (so far as they were still in issue and it
was appropriate to answer
them). The proceedings could then be returned for
trial. They did not seek to formulate declaratory or other relief in this
Court.
This was because it is of the essence of their contentions that the
proper elucidation of their entitlements to native title would
be found after
evidence is adduced, and factual findings made, concerning the incidents of the
title enjoyed under the pastoral leases
when compared with the proved
characteristics of the native title of the Wik.

The Wik could only have stood to lose from the procedure adopted by Drummond
J. That is why it was, in effect, a strike out application
or demurrer to
their claim. If any of the questions remaining in contest are answered
favourably to the Wik, it was enough for them
that the proceedings should be
returned for trial. Any future elucidation or elaboration of such complex
questions as the relationship
in this case between pastoral leases and native
title could be better attempted against a thorough understanding of the facts,
including
the variations in place and time both of the incidents of the
pastoral lease in question and the native title claim. If the threshold
could
be passed, the Wik would then be in a position to take their claim to trial.

PASTORAL LEASES

Common ground

Despite the strenuous contest over matters of great importance which this
litigation has presented, many points relevant to its
determination were either
agreed or not seriously in contest amongst the parties:

1. There was no challenge to the principle established by Mabo [No 2]
that the duty of this Court (as of every Australian court) is to apply the
common law and relevant statutes although this could lead
to the extinguishment
or impairment of native title. This Court, established by the Constitution ,
operates within the Australian legal system. It draws its legitimacy from that
system. Self-evidently, it is not an institution
of Aboriginal customary law.
To the extent that native title is recognised and enforced in Australia by
Australian law, this occurs
because, although not of the common law, native
title is recognised by the common law as not inconsistent with its precepts [596] . This does not mean that, within its own
world, native title (or any other incidents of the customary laws of
Australia's indigenous
peoples) depends upon the common law for its legitimacy
or content. To the extent that the tide of history has not washed away
traditional
laws and real observance of traditional customs, their legitimacy
and content rest upon the activities and will of the indigenous
people
themselves [597] . Two centuries of
interaction between Australian law and such traditional laws and customs have
doubtless affected the latter, often
to their detriment. Now, the decision in
Mabo [No 2], the enactment of the Native Title Act 1993 (Cth) and
other legislation have begun a process which may protect and reinforce some
aspects of traditional laws and customs. But
no dual system of law, as such,
is created by Mabo [No 2]. The source of the enforceability of native
title in this or in any other Australian court is, and is only, as an
applicable law or
statute provides. Different considerations may arise in
different societies where indigenous peoples have been recognised, in effect,
as nations with inherent powers of a limited sovereignty that have never been
extinguished [598] . This is not the
relationship which the indigenous people of Australia enjoy with the legal
system of Australia. For Aboriginal
legal rights, including to native title,
to be enforceable in an Australian court, a foundation must be found within the
Australian
legal system [599] . These truisms
do not resolve all of the issues concerning the relationship between the
Australian legal system and Aboriginal law
and custom, including as to native
title. It will be necessary to return to some of the differences which have
emerged.

2. No party challenged the decision in Mabo [No 2]. No party sought
leave to reargue the correctness of Mabo [No 2] or the fundamental
principle which it establishes, contrary to the previous understanding of the
law, that native title to land survived
the Crown's acquisition of sovereignty
in Australia. The respondents did not contest the importance of the Court's
decision in Mabo [No 2] or the necessity which that decision imposed to
accommodate the new understanding of native title rights within a legal system
which,
for two hundred years, had developed in great detail on the basis of a
completely contradictory assumption. The position of the
parties contesting
the submissions of the Wik and the Thayorre was, not that Mabo [No 2]
was wrongly decided, but that, contained within its holdings, or implicit
in a logical development of its reasoning, were conclusions
sustaining the
answers given in the Federal Court to the questions isolated in this case.

3. No party contested the determination in Mabo [No 2] that upon
annexation of the Australian territory, sovereignty over every part of
Australia passed to the Crown which thereupon acquired
a radical title in
respect of all such land. There was no contest that the Crown, as Sovereign,
had the power, in accordance with
law, to deal with land in every part of
Australia. To the extent that it did so in a way inconsistent with Aboriginal
law and custom
or native title, the latter would, to that extent, be liable to
extinguishment or impairment.

4. There was some discussion during argument about Aboriginal traditions and
customs other than in relation to possession of land.
However, as pleaded,
this case is not concerned with claims of a sentimental or ceremonial kind. It
is not concerned, as such,
with rights of a spiritual or religious character.
It is concerned with interests in land. It presents the question whether the
grants of the pastoral leases proved constituted such an exercise of the
acquired sovereignty over Australia as to extinguish the
vulnerable native
title which, until then, had survived such acquisition of sovereignty.

5. Although there was also some discussion during argument about the precise
character and qualities of the Crown's radical title [600] and about the character and qualities of native title,
these questions do not have to be exhaustively determined. It was suggested
that native title was allodial in character, ie that land in which the relevant
Aboriginal clan or group held native title would
be held as their absolute
property and not as an estate from a Lord or superior. By conventional
doctrine, no land in England, at
least after the Conquest, was held
allodially [601] . The highest estate known
to the common law was one in fee simple. In a context in which this fiction of
English land law, derived
from feudal times, has long been criticised as
inappropriate to Australian land law [602] ,
it scarcely seems helpful to attempt to categorise the laws and customs of
Australian Aboriginals as allodial in terms of the Lex Salica of Roman
law. It seems safer to agree with Macfarlane JA in Delgamuukw v The Queen
in Right of British Columbia [603] that
Aboriginal rights are sui generis, difficult if not impossible to describe in
the terminology of traditional property law, being
communal, personal and
usufructuary [604] . Interesting although
these issues may be, they do not have to be resolved at this stage of the
present litigation.

6. No one disputed that, as a matter of fact, members of the Wik and the
Thayorre had remained upon, travelled in and out of, and
utilised the land the
subject of the pastoral leases in question in these proceedings. There was no
agreement about the intensity
of such usage. Hansard records of debates in the
Parliament of Queensland and evidence before Committees of that Parliament
suggest
that the accepted policy in respect of "blacks" in Northern Queensland
at the end of the 19th century was opposed to the establishment
there of
Aboriginal reserves [605] . The Home
Secretary explained that "the aboriginals are by nature hunters, they would
feel as if they were imprisoned. I do not
propose to deal with them in that
way" [606] . This policy was also adopted by
the Northern Protector of Aboriginals (Dr Walter Roth). In answer to questions
asked of him in
Committee he said [607] :

"[Q:] Do they come under your control to round them up into camps? I do not
see any clause in the Bill which says I am to put blacks
into camps.

[Q:] In certain cases you may require every aboriginal to be drafted away into
some camp or reserve? In cases it may be necessary;
but I have no idea, and no
one else has, of shifting the blacks from their hunting-grounds on to reserves
unless it is absolutely
necessary to do so.

[Q:] Then you would not have a provision of that kind in the Bill? I have not
asked for any.

[Q:] And you would not approve of it? No. ...

[Q:] You do not think it advisable to abolish ... camps and force all the
blacks to go on to reserves? Very far from that. How
can we keep 18,000 or
20,000 blacks on reserves?"

The Northern Protector of Aboriginals had responsibility for Aboriginals in
the districts of Queensland included in the areas claimed
by the Wik and the
Thayorre [608] . Complaints were later
recorded from pastoralists that Aboriginals, roaming and hunting over their
traditional lands, sometimes
frightened cattle or camped at waterholes. But
the Northern Protector of Aboriginals for 1903, in his report to the Queensland
Parliament,
asserted [609] :

"[T]he principle must be rigidly instilled that the aboriginals have as much a
right to exist as the Europeans, and certainly a
greater right, not only to
collect the native fruits, but also to hunt and dispose of the game upon which
they have been vitally
dependent from time immemorial. Were the assumption
just mentioned to be carried to its logical conclusion, and all available
country
leased or licensed, we should have a condition of affairs represented
by a general starvation of all the aboriginals and their concurrent
expulsion
from the State".

In an earlier report, the Northern Protector had stated [610] :

"It would be as well, I think, to point out to certain of these Northern
cattle-men (at all events those few amongst them who regard
the natives as
nothing more than vermin, worthy only of being trampled on) that their legal
status on the lands they thus rent amounts
only to this: There is nothing
illegal in either blacks (or Europeans) travelling through unfenced leasehold
runs. These runs are
held only on grazing rights - the right to the grass -
and can only be upheld as against people taking stock, &c., through them.
It certainly is illegal for station-managers, &c., to use physical force
and threats to turn blacks (or Europeans) so travelling
off such lands.
Carrying the present practice (might against right) to a logical conclusion, it
would simply mean that, were all
the land in the north to be thus leased, all
the blacks would be hunted into the sea."

Because the Wik and the Thayorre were not banished from the lands in question,
still less hunted into the sea, the issue presented
by this aspect of these
proceedings was not whether in fact the Wik and the Thayorre had
physically remained on their traditional lands. It was simply whether in
law they did so in pursuance of the native title rights which the common
law recognised and which the common law and the Native Title Act 1993
(Cth) would now protect. Or whether such rights had been extinguished by the
Crown's action in granting pastoral leases under legislation,
which action was
said to be inconsistent with the continuance of native title rights.

7. Several of the respondents appealed to the Court to confine any holding in
this case to the peculiarities of pastoral leases in
Queensland and the
suggested additional peculiarities, as between each other, of the pastoral
leases granted in respect of the Holroyd
River Holding and the Mitchellton
Pastoral Holdings No 2464 and 2540 affecting the traditional lands of the Wik
and the Thayorre.
The Holroyd River Holding is the pastoral lease referred to
in question 1B in this case. The leases in respect of the Mitchellton
Pastoral
Holding are the subject of question 1C. The Wik are concerned principally with
the Holroyd River Holding. The Mitchelleton
Pastoral Holding is principally
the concern of the Thayorre. The Thayorre's claim to native title around the
Edward River in Northern
Queensland includes areas within the Mitchellton
Holding. Because part of this land is within the southern portion of the Wik's
claim, the Thayorre were joined in these proceedings. To a large extent the
Thayorre made principal cause with the Wik on the common
issue of the effect of
pastoral leases generally upon native title. But the history of each pastoral
lease was different. The point
was fairly made that not all pastoral leases,
including not all of them in Queensland, would reflect the same history and
depend
on the same statutes and instruments of pastoral lease as did the
Holroyd and Mitchellton Holdings. As will be shown, these holdings
evidence
minimal, if any, activity on the part of the pastoral lessees in exercise of
their leasehold rights. Such would not necessarily
be the case in other
pastoral leases. Therefore, a decision should not be made in the present case
on an assumption that the leaseholds
in question here were necessarily typical
or representative of Queensland pastoral leases generally. To the extent that
native title
was not extinguished, as a matter of law, by the fact or necessary
concomitants of the grant of a leasehold interest, each such interest
would
have to be considered individually. A fortiori, because of the different
colonial history, legislation, regulation and practices
in the several States
of Australia and in the Northern Territory, care would need to be observed in
expressing any general rule concerning
the legal consequences of the grant of
pastoral leases upon native title in those jurisdictions. In particular, the
legal consequences
of express reservations in the grant of a leasehold
interest, to protect the rights of Aboriginals (or arguably the reservation of
lands for purposes consistent with the enjoyment of those rights, as in
national parks [611] ) needed to be separately
considered. The different contractual and legislative formulae which exist in
this regard in the several
States and in the Northern Territory were explained.
If the fact, or necessary incidents, of the grant of a pastoral lease did not,
without more, extinguish any surviving native title, it was common ground that
this Court should confine its attention to the particular
leases in question in
this case. It should avoid the expression of unnecessary generalisations which
might cause problems in future
native title claims in Queensland and, in
significantly different legal settings, elsewhere in Australia.

8. There is also a point concerning the role of the courts which should be
mentioned for it was referred to in submissions. Various
submissions
acknowledged the injustices suffered by Australia's indigenous peoples as a
consequence of the substantial extinguishment,
after 1788, of their traditional
laws and customs, including native title. Thus, the Commonwealth admitted that
acceptance of its
submissions, upholding the determination of Drummond J on the
effect of pastoral leases, could be regarded as "the hard view", the
"tough
view" and one which "the Commonwealth will completely admit is an
unsatisfactory result so far as the present position of
Aboriginals, or of
those claiming native title, may be concerned" [612] . Nevertheless, the Court was repeatedly reminded of
the limits of the proper function of the courts in resolving the present claim
according to law. Effectively to take away the property rights conventionally
assumed to have been granted and previously enjoyed
by those holding land by or
under pastoral leases is an equally serious matter given the law's respect for,
and protection of, property
rights [613] .
The radical rewriting of the property rights of Aboriginals, pastoralists and
those taking under them is a matter for legislation;
not a court decision. So
much may be accepted. No one doubts the limits of this Court's functions in
stating what the law is.
But just as in Mabo [No 2], there is room for
difference as to where the boundary lies. The Court cannot disclaim the
responsibility of determining the legal
claims advanced for the Wik and the
Thayorre. Those claims are before the Court to be decided according to law. A
new ingredient
has been injected into the previously settled land law of
Australia by the decision in Mabo [No 2]. Settled principles and
assumptions must be re-examined to accord with the decision of the Court in
that case. Where there is no precise
holding on the point (and no valid
legislation resolving any doubt) the Court must reach its decision upon the
competing legal contentions
of the parties: finding the applicable rule by the
use of the normal techniques of judicial decision-making, viz reasoning by
analogy
from established legal authority illuminated by relevant legal history
and informed by applicable considerations of legal principle
and legal policy [614] .

9. No one doubted the significance of the issue tendered to the Court. Various
estimates were given of the area of land in Australia
covered by pastoral
leases. For the Commonwealth it was put at 42% in aggregate. In various
States, estimates of 70 to 80% of the
land surface were mentioned. The systems
of Crown leases introduced into New South Wales and Queensland were
particularly "complex
and diversified [615] ":

"[The law] ... introduced a system of Crown leasehold tenures which led to the
whole of Australia being transformed in subsequent
decades into a patchwork
quilt of freeholdings, Crown leaseholdings, and Crown 'reserves' ...

The result in each State, as Millard has said of New South Wales, is 'a
bewildering multiplicity of tenures [616] .'
Gone is the simplicity of the modern English law as to tenures. Gone is the
senile impotence of the emasculated tenurial incidents
of modern English law.
New South Wales and Queensland are in the middle of an historical period in
which the complexity and multifarious
nature of the laws relating to Crown
tenures beggars comparison unless we go back to the mediaeval period of English
land law. ...
[I]n no Australian State or dependant Territory are these laws
nearly as simple as is the modern English law as to tenures. ...

Of all Australian States, Queensland is that in which the largest fraction of
total area is held by Crown tenants on various kinds
of non-perpetual Crown
leasehold tenures [617] , and in which there
exists a remarkable multiplicity of Crown leasehold tenures.

There are approximately seventy different kinds of Crown leasehold and Crown
perpetual leasehold tenures in Queensland. [618] "

The issues at stake in these proceedings are therefore important. If the
primary argument of the contesting respondents is accepted,
this Court's
holding in Mabo [No 2], that native title survived the annexation of
Australia to the Crown and the acquisition of the Crown's radical title, is
revealed
as having little practical significance for Australia's indigenous
people over much of the land surface of the nation. The vulnerability
of
native title to extinguishment by the fact or necessary incidents of a grant of
a pastoral lease over the land is revealed in
sharp relief. The effective
operation of the Native Title Act 1993 (Cth) and like legislation, as
well as claims under the general law, recede to apply only to the balance of
Australia's land surface
after the grants of estates, including freehold [619] and pastoral leaseholds (without relevant
reservations), are deducted. This is all the more significant to indigenous
peoples as
the parts of Australia where their laws and traditions (important to
sustain native title) are most likely to have survived include
those where
pastoral leases are likely to exist. On the other hand, the issues are equally
important for lessees under pastoral
leases, those taking under them,
potentially those holding other title to land, governments, mining interests
and the population
generally.

10. Finally, there is a further consideration of a practical kind. If the
threshold objection to the claim of the Wik and the Thayorre,
upheld by
Drummond J, is set aside, these proceedings would be returned for trial. The
position of the parties would then be uncertain.
The rights of Aboriginal and
non - Aboriginal Australians in respect of land affected by pastoral
leases would be left unclear: awaiting elucidation in this and many
other
cases unless earlier resolved by valid legislation. This would be so in an
area of the law's operation where certainty and
predictability have
conventionally been accorded high importance. Conformably with the legal
rights of those involved, the avoidance
of unnecessary doubt and confusion is a
proper objective of land law.
Mabo [No 2] does not resolve the claims

In judging what Mabo [No 2] decides, it is helpful to consider
the three possible doctrinal solutions in respect of grants of pastoral leases
which compete for
acceptance:

(1) The exercise of sovereignty test : That once the Crown proceeded in
any way to convert its ultimate or radical title into some other estate or
interest in land, it
exercised its sovereignty. In doing so, necessarily and
without anything more, it extinguished any fragile native title interests
in
the land affected.

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

(3) The factual conflict test : That the issue is in every case one of
actual or practical inconsistency between the estate or interest conferred in
the land (in
this case the pastoral lease executed pursuant to statute) and the
actual exercise of surviving native title rights. If, in actuality,
the two
may be reconciled, the native title rights are not extinguished. They survive
as a continuing burden on the Crown's radical
title.

Much of the argument in the Federal Court, and in this Court, concerned a
suggestion that the decision in Mabo [No 2], either in the language of
the majority reasons or by logical inference from what was there held, required
the result to which Drummond
J gave effect. This was that the grant of
pastoral leases under the relevant Queensland legislation, without more [620] , extinguished any native title right
which the Wik or the Thayorre had previously enjoyed in respect of the Crown
land the subject
of the leases. In so deciding, Drummond J held that he was
bound by the majority decision of the Full Federal Court in the Waanyi
Case [621] . There was no basis for
holding that any of the leases involved in the Wik or Thayorre claims were
distinguishable from the pastoral
lease considered in the Waanyi Case.
Because all of the leases granted exclusive possession of the areas
specified in them it necessarily followed that the grant of such
interests
extinguished the native title rights of the Wik and the Thayorre.

In the Waanyi Case Hill J [622] , with
whom Jenkinson J agreed on this point [623]
concluded that the issue was resolved by the reasoning of this Court in Mabo
[No 2]. As this is also the ultimate foundation of Drummond J's conclusion
in this case, it is appropriate to note the reasoning [624] :

"There was agreement by the majority of the court that the grant of a freehold
title necessarily operated to extinguish native title.
Once it was
extinguished it could not be revived. The matter depended not on subjective
intention but, as Brennan J observed [625] on
'the effect which the grant has on the right to enjoy the native title'. At
that page his Honour said:

'If a lease be granted, the lessee acquires possession and the Crown acquires
the reversion expectant on the expiry of the term.
The Crown's title is thus
expanded from the mere radical title and, on the expiry of the term, becomes a
plenum dominium'.

Later his Honour referred to the grant of interests in land inconsistent with
the right to continued enjoyment of native title ...

The exposition given by Deane and Gaudron JJ is slightly different from that
of Brennan J. ...

However, it is clear that [they] were of the view that a lease would operate
to extinguish native title. Thus their Honours said [626] :

'The personal rights conferred by common law native title do not constitute an
estate or interest in the land itself. They are
extinguished by an unqualified
grant of an inconsistent estate in the land by the Crown, such as a grant in
fee or a lease conferring
the right to exclusive possession. They can also be
terminated by other inconsistent dealings with the land by the Crown ...'."

Whilst acknowledging that the opinions extracted "may strictly be dicta", Hill
J regarded them as "of the highest authority" and
adopted them [627] .

Convenient as it would be if it were otherwise, I cannot accept that the cited
passages relied on from Mabo [No 2], other passages referred to, or the
conclusions inherent in the majority reasoning require the conclusion that the
grant by the Crown
of any leasehold interest in Crown land necessarily
extinguishes native title in that land.

There were two leases involved in the decision in Mabo [No 2] [628] . The first was one of two acres
of land on Mer Island in the Murray Island group. This had been granted by the
Crown to the London
Missionary Society in 1882. It was for a term of years.
The second lease by the Crown was granted to two non-Islanders over the
whole
of the islands of Dauar and Waier, for a term of 20 years for the purpose of
establishing a sardine factory. The latter lease
contained a condition that
the lessees should not obstruct, or interfere with, the use by Meriam people of
the islands for gardens
and the surrounding waters for fishing.

In Mabo [No 2], the consequences of the Crown's grants of the two
leases constituted an issue subordinate to the main questions which this Court
had
to determine. It is unsurprising, therefore, that the Court withheld
conclusive answers on the effect of leases on the survival
of native title.
Given the great number and variety of Crown leasehold interests in Queensland
law [629] , the decision in Mabo [No 2]
would not, in any case, have provided a conclusive answer to the effect of
a pastoral lease on native title, unless the first of the
doctrines stated
above had been clearly embraced. If the leases described in Mabo [No 2]
were sufficient to evidence the exercise of sovereignty and, without more,
to expel any residual native title, the same logic would
apply to every
leasehold interest, including pastoral leases. The reasoning offered by the
Court in Mabo [No 2] does not uniformly sustain this thesis. The orders
of the Court are inconsistent with it.

The passage from the reasons of Brennan J at page 68 of Mabo [No 2],
partly extracted above by Hill J in the Waanyi Case [630] , deserves to be cited in full because it was the
linchpin of much of the argument of the contesting respondents:

"A Crown grant which vests in the grantee an interest in land which is
inconsistent with the continued right to enjoy a native title
in respect of the
same land necessarily extinguishes the native title. The extinguishing of
native title does not depend on the
actual intention of the Governor in Council
(who may not have adverted to the rights and interests of the indigenous
inhabitants
or their descendants), but on the effect which the grant has on the
right to enjoy the native title. If a lease be granted, the
lessee acquires
possession and the Crown acquires the reversion expectant on the expiry of the
term. The Crown's title is thus expanded
from the mere radical title and, on
the expiry of the term, becomes a plenum dominium. Where the Crown grants land
in trust or reserves
and dedicates land for a public purpose, the question
whether the Crown has revealed a clear and plain intention to extinguish native
title will sometimes be a question of fact, sometimes a question of law and
sometimes a mixed question of fact and law. Thus, if
a reservation is made for
a public purpose other than for the benefit of the indigenous inhabitants, a
right to continued enjoyment
of native title may be consistent with the
specified purpose - at least for a time - and native title will not be
extinguished.
But if the land is used and occupied for the public purpose and
the manner of occupation is inconsistent with the continued enjoyment
of native
title, native title will be extinguished. A reservation of land for future use
as a school, a courthouse or a public office
will not by itself extinguish
native title: construction of the building, however, would be inconsistent
with the continued enjoyment
of native title which would thereby be
extinguished. But where the Crown has not granted interests in land or
reserved and dedicated
land inconsistently with the right to continued
enjoyment of native title by the indigenous inhabitants, native title survives
and
is legally enforceable".

As I read this passage, it contains the seeds of each of the three theories
stated above. However, it cannot be reconciled with
the first theory because,
by that theory, any exercise by the Crown of sovereignty in respect of the
land, however slight, would
necessarily be inconsistent with native title
rights and would extinguish them. This would certainly have been so in respect
of
the leases discussed in Mabo [No 2]. It would even have been so in
respect of the conversion of the Crown's radical title to the creation of a
reservation for public
purposes over the land.

The passage relating to the expansion of the Crown's radical title into a
plenum dominium, such that there is inherent in any leasehold
the creation of a
reversion expectant, comes closest to the second theory. Yet, by the
application of that doctrine, the expansion
of the Crown's radical title for
the purpose of granting the two leases in question would ipso facto have
extinguished native title in the lands affected by the leases simply because
that was an incident of the legal character of a
common law lease.

The reasons of Mason CJ and McHugh J in Mabo [No 2] [631] included a qualification that the formal order of the
Court should 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 ...". The actual declaratory order made by the Court [632] therefore excluded the lands the subject
of the two leases. That order defines what it is that this Court held.
Clearly, therefore,
in the reasoning of individual Justices, the effect of the
grant of leasehold interests upon native title rights is not authoritatively
decided. There are dicta in the reasons of Deane and Gaudron JJ [633] to the effect that an unqualified grant
of an inconsistent estate, whether in fee or by a lease conferring a right to
exclusive possession,
could extinguish native title. But their Honours clearly
rejected the first theory propounded by observing that the lease of two
of the
islands for a term of 20 years for the purpose of establishing a sardine
factory did not of itself extinguish native title
rights. Nor did it have any
continuing adverse effect upon native title [634] . Toohey J agreed that the issue of the effect of the
leases did not have to be determined in Mabo [No 2] [635] .

Returning, then, to the passage in the reasons of Brennan J, extracted above,
in so far as it concerns the effect of a lease on
native title, it is not part
of the binding rule established by Mabo [No 2]. The reasoning of all
Justices in the majority appears to be inconsistent with the first theory which
I have indicated. Moreover,
as Lee J pointed out, in dissent, in the Waanyi
Case [636] when it was before the Full
Federal Court:

"If the act of reservation by the Crown of a discrete area of Crown land for
the express purpose of dedicating it for use as a school,
courthouse or public
office, or the appropriation and use of Crown land if that use is consistent
with the continuing current enjoyment
of native title does not extinguish
native title [637] , there must be ample scope
for the argument that the grant of a statutory leasehold interest by the Crown,
in the form of a pastoral
lease over waste land, is not intended to exclude
concurrent enjoyment of native title and to extinguish that title."

Once one has descended to the particularity of the facts as to whether a
school, courthouse or other public building has been erected
on the land or
not, attention has shifted from consideration of pure legal theory to a
consideration of factual inconsistency and
the state of the evidence.

Although the discussion of the effect of the leases in Mabo [No 2] is
helpful as identifying some of the problems which are presented by the rather
different leases in question in the present claims,
Mabo [No 2] does not
provide the solutions. It was understandable that Hill J (with the concurrence
of Jenkinson J) in the Waanyi Case [638] should have turned to the dicta of Brennan J about the
leases in Mabo [No 2] to seek analogies for the pastoral leases
competing with the Waanyi claim. However, I prefer the analysis of Lee J in
that case [639] . Mabo [No 2] failed
to resolve the basic questions. That is why some of them remain to be decided
in these proceedings.

Pastoral leases

It is useful to record, briefly, something of the history of the emergence of
pastoral leases in Queensland. As a result of the
different patterns of
availability and utilisation of land in England, such leases were unknown in
that country. They are creatures
of Australian statutes [640] .

Moves to depasture stock outside the concentrated settlements in New South
Wales first began without official sanction in the late
1820s. They continued
in the following two decades. So-called "squatters" simply moved onto land
unoccupied by other squatters
and took possession of that land without any
right or title to it [641] . Faced with this
fait accompli , the New South Wales legislature enacted the "Squatting
Acts", instituting a system of pastoral licences [642] . For a fixed annual licence fee holders of such
licences were permitted to occupy land outside the settled districts for
pastoral
purposes. The squatters objected to the intrusion into their de
facto activities. The Government was concerned about uncontrolled
activities on Crown land, particularly where the land was acquired without
payment, unsurveyed and beyond legal and administrative control [643] . Hence the Crown Lands Unauthorized Occupation Act
1839 (NSW) established a border police force "for the mutual protection and
security of all persons lawfully occupying or being upon
the Crown lands beyond
the limits allotted for location ...". That Act clearly contemplated
Aboriginals "being upon" Crown lands,
including those lawfully occupied by the
holders of licences [644] . Regulations made
in 1839 provided that such licences could be cancelled if the licencee were
convicted "of any malicious injury
committed upon or against any aboriginal
native or other person ..." [645] .

By the Sale of Waste Lands Act 1842 (Imp) (5 & 6 Vict c 36), the
Imperial Parliament brought all grants of Crown land under legislative
supervision. In 1846,
the Imperial Parliament enacted the Sale of Waste
Lands Act Amendment Act 1846 (Imp) (9 & 10 Vict c 104). By s 1, it was
made lawful for Her Majesty to "demise for any Term of Years not exceeding
Fourteen,
to any Person or Persons, any Waste Lands of the Crown in the
Colonies ...". This Act was implemented in New South Wales by Order
in Council
of 9 March 1847 [646] . By Chapter II s 1 of
the Order in Council, the Governor was empowered to grant leases of land in the
unsettled districts for any
term not exceeding fourteen years for pastoral
purposes. There was nothing at all in any of the foregoing legislation, unless
it
was that the interests granted were called "leases" and "licences" which
evidenced an intention of the Crown to grant possession
over the lands in
question to the exclusion of the Aboriginal subjects of the Crown.
Contemporary documents, including communications
by Earl Grey, Secretary of
State for the Colonies, to the Governor of New South Wales, Sir Charles
FitzRoy, indicate that this was
not intended, at least by the Imperial
authorities [647] :

"[I]t should be generally understood that Leases granted for this purpose give
the grantees only an exclusive right of pasturage
for their cattle, and of
cultivating such Land as they may require within the large limits thus assigned
to them, but that these
Leases are not intended to deprive the Natives of their
former right to hunt over these Districts, or to wander over them in search
of
subsistence, in the manner to which they have been heretofore accustomed, from
the spontaneous produce of the soil except over
land actually cultivated or
fenced in for that purpose [648] ."

A further Order in Council of 18 July 1849 [649] was declaratory of existing rights under the Sale of
Waste Lands Act Amendment Act 1846 and the Order in Council of 9 March
1847. Thereafter, pastoralists outside the settled districts of the colony
held their lands
on leases of 8 or 14 years duration, for low annual rents. A
right of resumption was retained by the Crown and a right of pre-emption
of the
fee simple of the land, or part thereof, was granted to the Crown's leasehold
tenants.

These developments provide the common starting point for the evolution of
Crown leasehold tenure, including pastoral leases, in
what are now the States
of New South Wales, Queensland, Victoria and Tasmania [650] .

In February 1842, land in the Moreton Bay District was first opened for free
settlement [651] . The laws applicable were
those of the colony of New South Wales of which it was then part. In May 1842
a Commissioner for Crown
Lands for the Moreton Bay District was appointed
pursuant to the Crown Lands Unauthorized Occupation Acts of 1839-1841 [652] . As the new settlement expanded,
pressure grew for other districts to be opened up for the use of land within
them for pastoral
purposes. The occupation of waste lands of the Crown for
such purposes initially mirrored the unauthorised expansion which had taken
place elsewhere in the colony.

Self-government was granted to New South Wales in 1855. In June 1859
Queensland separated from New South Wales [653] . However, the laws of New South Wales, including those
regulating the "sale, letting, disposal and occupation" of wastelands of
the
Crown, remained in force until repealed or varied by the legislature of the new
colony [654] . That legislature had the power
to make laws with respect to land use. Thereafter, the Queensland Parliament
adopted and elaborated
the form of pastoral lease which had earlier evolved in
New South Wales. There followed, up to recent times, a large number of
statutes
with provisions for, or affecting, pastoral leases [655] . The point of referring to them is to demonstrate the
extent to which the Queensland Parliament regulated the incidents of pastoral
leases in the colony. Most of the statutes contained express provisions
conferring rights on third parties over a pastoral lease,
inconsistent with the
submission that the lease conferred rights of exclusive possession upon the
lessee.

By the successive Queensland Acts, rights to possession were subject to
various exceptions. Thus, the Land Act 1910 (Q), pursuant to which the
instrument of lease of the Mitchellton Pastoral Holding was granted, provided
for reservations of
a right of access for the purpose of the search for, or
working of, any mines of gold or minerals (s 6(3)); the right of a land ranger
to enter a holding to "view the same and observe the manner of residence or
occupation" (s 14(3)); a right of entry to a person authorised
by a Minister to
survey, inspect or examine land the subject of a lease (s 14(4)); a power of
the Commissioner appointed under the
Act to cause inspections of all land
within the District of the lease (s 139); a provision to grant a licence to cut
timber on leasehold
land or to remove stone, gravel, clay, guano or other
material (s 199(1)); a right of a licensee to use animals and vehicles to
remove
timber or materials and to depasture such animals (s 199(1)); a right in
a person duly authorised by law to cut or remove timber
or material without
restriction by the pastoral lessee (s 200); and a right of pasturage for
travelling stock (s 205). Such rights
enjoyed by third parties, are not
confined to the Land Act 1910 (Q). Many of the statutes referred to
above contain similar provisions. Their existence gave rise to competing
submissions
in this appeal. For the Wik and the Thayorre, they showed that the
Queensland Parliament had never intended, by calling a pastoral
lease a
"lease", and using other terminology apt to describe a lease at common law, to
assimilate the special kind of statutory lease
created, to a lease at common
law. The fundamental element explained in Landale v Menzies [656] was missing, viz a "contract for the
exclusive occupation of land for a determinate period, however short ...". For
the contesting
respondents, however, the very need, in the statutes, expressly
to reserve rights of entry and inspection demonstrated an acceptance
that, in
the absence of such reservations, the pastoral lease would, in law, permit
exclusion of anyone on the ground that that was
the character of a lease. The
latter view enjoyed the support of early Queensland Supreme Court decisions [657] written, of course, without any need to
address the problem presented by the subsequent decision in Mabo [No
2].

None of the foregoing Queensland legislation expressly abolished Aboriginal
native title. This is scarcely surprising, having regard
to the then
understanding of the law, that such title had not survived annexation of
Australia to the Crown. Nor did the legislation
expressly provide for the
curtailment or limitation of Aboriginal rights, or any manner of dealing with
the land from which could
be inferred the purpose of abolishing Aboriginal
native title. Again, this is unsurprising, in light of the understanding of
Aboriginal
legal rights at the time, the provisions in limited legislation
about particular aspects of Aboriginal policy and the then prevailing
policy of
ignoring Aboriginals, leaving them as far as possible untouched by Australian
law in the expectation, and hope, that they
would become "civilised",
assimilated or otherwise disappear as a "problem" [658] .

It now falls to legislatures and courts to work out the consequences of the
failure of this earlier social and legal strategy.
There is an inescapable
element of artificiality, in looking back over Australian legal history, which
developed upon a particular
hypothesis about Aboriginal legal rights, and
endeavouring to reinterpret that history with the knowledge afforded by Mabo
[No 2] . But it is important to understand that the decision in Mabo [No
2] was not a legislative but a judicial act. It did not declare that
thenceforth native title would be recognised. It held that native
title had
always existed [659] . It had survived the
advent of the sovereignty of the Crown in Australia. It was recognised by the
common law. It would be enforced
unless clearly extinguished. Thus the search
must now be conducted to find indications of extinguishment. It is a search
conducted
at a disadvantage because it relies upon legal materials written in a
completely different legal environment of contrary understandings
and beliefs.
One of the founders of the Australian Constitution , Alfred Deakin, stated that
the judicial method enabled "the past to join the future, without undue
collision and strife in the present" [660] .
In this case the present must revisit the past to produce a result, wholly
unexpected at the time, which will not cause undue collision
and strife in
future.

The pastoral leases in this case

The Holroyd River Holding covers an area of 2,830 square kilometres. The
Mitchellton Holding, expressed in the old measurements,
is said to cover an
area of 535 square miles (approximately 1385 square kilometres).

The first Mitchellton lease was issued under the Land Act 1910 (Q)
("the 1910 Act") on 1 April 1915. However, it was forfeited for non-payment of
rent in 1918. The second Mitchellton lease
was also issued under that Act in
1919. It was surrendered in 1921. Possession was never taken by the lessee
under either of these
two leases. Since 12 January 1922, the land, formerly
the subject of the Mitchellton leases, has been reserved for the benefit of
Aboriginals, held for and on their behalf. The Holroyd River Holding lease was
originally issued under the 1910 Act in 1945. That
lease was surrendered in
1973. A new lease was issued on 27 March 1975 under the Land Act 1962
(Q) ("the 1962 Act"). The lease was issued to the same persons for a term of
30 years with a commencing date of 1 January 1974.

The lease documents for the Holroyd River Holding are instructive. They show
that there was no irrigation on the property. It
was served by natural waters
only. It was said not to be fit for fattening cattle. It was purely suitable
for breeding cattle.
Its carrying capacity in fair seasons was approximately 1
beast to 60 hectares. This could be increased by fencing and the supply
of
additional waters but the cost of doing that was unknown and the lessees were
recorded as displaying no intention of doing so.
The cattle carried on the
holding were running under open range conditions. The lessees disclosed that
there were no improvements
whatsoever on the property. In answer to a question
concerning the nature and estimated cost of any improvements proposed to be
made they stated "Nil at present". As to land "cultivable or suitable for the
introduction of pasture", the lessees stated that
there was "Nil". There was
no accommodation or amenities for employees on the property at the time of the
first return.

When the new lease was issued under the 1962 Act in 1975, certain conditions
were imposed. Within five years of the commencement
of the new lease the
lessees were obliged to construct a manager's residence with quarters for five
men and a shed for machinery.
They were also to build an airstrip and to erect
90 miles of internal fencing with some yards, a dip and some dams. From a
report
in 1984 from the relevant government officer who inspected the property,
it is clear that there had been little change. The number
of stock depastured
upon the land was estimated at 1,000 head. The property had been partly
destocked to restrain an outbreak of
tuberculosis. Its carrying capacity at
the time of the inspection was reduced to 1 beast to 55 hectares. The holding
was characterised
as "Not permanently occupied". As to employees, it was
stated that "No one employed at the time of inspection though usually about
12
stockmen are mustering the block in the dry season". None of the buildings
required by the above conditions had been built, although
an airstrip had been
constructed. No seed production area had been established nor was any planned.
No boundary fencing had been
erected and the lessee did not intend to erect
any.

By 1988, a similar inspection report disclosed that the only cattle on the
land were feral cattle. There were no branded cattle
and only about 100
unbranded. The only occupants of the land, so far as the lessee was concerned,
were two sleeper cutter gangs
of six men and the contract musterers in the dry
season. A machinery shed had been built. But no residential quarters for
employees
had been constructed. Timber cutters, using their own money, had
erected a toilet and shower system. They were recorded as intending
to build a
house on the holding for their own use. The introduction of helicopter
mustering had, in the opinion of the inspector,
reduced the necessity to insist
on permanent mustering yards. The openness of the country afforded the cattle
little means of escape
or hiding.

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

The position of the Holroyd River Holding is not so extreme a case. But from
the conditions which are described in the pastoral
lease documents and from the
successive inspectors' reports, it seems a reasonable inference that
traditional Aboriginal life would
have been little disturbed by the grant of
the pastoral lease in that instance. The number of persons entering the land
was small
and mostly seasonal. The physical improvements were virtually
non-existent. In such a large remote terrain, for most of the year,
the Wik
could go about their lives with virtually no contact with the lessee or the
tiny number of stockmen, wood gatherers and occasional
inspectors who entered
their domain or, more recently, in the case of helicopter pilots engaged in
mustering, who flew over it.

To the contesting respondents, these facts were irrelevant. They were not
necessarily typical of all pastoral leases in Queensland,
still less elsewhere
in Australia. The issue to be resolved was one of legal theory. It was the
resolution of a conflict of legal
titles which was to be decided on legal
principles determining legal rights: not factual evidence regarding land use.
I have nevertheless
described the evidence as to the use of the land in the
pastoral leases in this case because the emerging facts illustrate vividly
the
kind of practical physical conditions for which pastoral leases were created by
the Queensland Parliament. Those facts also
demonstrate the very limited
occupation of the land which was expected and regarded as normal under pastoral
leases. They show how
Aboriginal law and tradition could readily survive in
such an environment because of the very limited contact which was inherent
in
these pastoral leases, between Aboriginals and those connected with the lessee.
The understanding of these facts helps to provide
the context against which the
application of legal theory must be tested in this case. It also helps to
illustrate, and describe,
the nature of the pastoral leases which the
successive enactments on pastoral leases were designed to permit. They are a
far cry
from the situation in settled and occupied areas of Australia where the
extinguishment of native title has a practical and necessary
quality sustaining
a legal determination of extinguishment by reference to the legal
characteristics of common law or residential
leases. In pastoral leases of the
kind described in the evidence in this case, talk of "exclusive possession" or
"exclusive occupation"
has an unreal quality. It may be what the law imputes
to the lease at common law. But it would require very clear law to drive
me to
such an apparently unrealistic conclusion. The common law tends to abhor
unreality, even when it is presented as legal doctrine.

Mere exercise of sovereignty doctrine rejected

I now return to the three theories which were suggested as potentially
providing the solution to a conflict between the grant of
an estate or interest
in land under Australian law and native title as a burden on the Crown's
ultimate or radical title.

The first theory was one which postulates the extreme fragility and
vulnerability of native title. Under this theory, any action,
now necessarily
by legislation, whereby the Crown's radical title is expanded into an exercise
of dominium in respect of the land,
necessarily expels native title. This is
so, whatever the estate or interest granted. It does not depend upon the
precise legal
features of that estate or interest.

This theory rests upon the political notion that in the one nation there
cannot be two sovereigns. Specifically, there cannot be
two sources of title
to land. All land is held of the Crown, otherwise the Crown's claim to
sovereignty is put in doubt. Even native
title is, upon this view, held of the
Crown, to the extent that the common law recognises and enforces it. Thus
where, in effect
by legislation, the Crown grants any estate or interest in
land (however limited in rights and time), by the very act of doing so
it has
exercised its sovereignty in a way that is inconsistent with the common law's
recognition of native title, derived from a
different source, in respect of the
same land. A legal metamorphosis takes place the instant that the paramount or
radical title
is changed to a dealing in the land. When that occurs the
Crown's undoubted sovereignty has been exerted in a way that does not
permit
the survival of a legal right originating outside the ordinary legal system.
To the complaint that it would be extraordinary
that the rights of Aboriginal
peoples in Northern Queensland, possibly enjoyed for millennia, could be
extinguished by the actions
of officials in Brisbane of which they were
completely unaware, the answer is given: that is the way that sovereign powers
of a
modern state are exercised. Radical title is not a real title for
property purposes. It is more in the nature of a political notion
and in that
sense a legal fiction [661] . But property
rights of any kind are not fictional. They concern the interests of
individuals. Where they involve estates or interests
in land, their
recognition and protection by the legal system is important to the social and
economic stability and peace which it
is the function of the sovereign to
protect and enforce. Thus, where radical title expands through the exertion of
sovereignty,
to the extent of granting a legal estate or interest in land, that
fact alone is sufficient to expel forever native title in such
land.
Thereafter, such title as exists must be derived from any further exercise of
the powers of the new sovereign which has asserted
its rights of sovereignty
over the land. On this theory, the grant of a pastoral lease in respect of any
land, being an exercise
of the sovereign's powers in relation to that land,
necessarily extinguishes rights deriving from a competing legal system unless,
possibly, those other rights were expressly reserved or exempted and that is
not suggested here.

This theory was supported in argument by what was said to be the logic of the
explanation in Mabo [No 2] of the way in which, upon the grant of a
lease, the "Crown's title is ... expanded from the mere radical title and, on
expiry of the
term, becomes a plenum dominium" [662] . However, it is not consistent with the analysis of
the reasoning of any of the Justices in Mabo [No 2]; nor with the
Court's holding in that case. Nor is it consistent with earlier analyses of
the Privy Council [663] .

In the critical passage in the reasoning of Brennan J in Mabo [No 2] [664] , his Honour implies that it is not the
grant of the lease, as such, which has the effect of expanding the Crown's
title "from the
mere radical title" to a "plenum dominium" but the acquisition
of the reversion expectant on the expiry of the leasehold term. This
required
legal analysis of the consequences of the exercise of sovereign rights in
respect of each dealing in the land. So much
is implied by the passage which
followed, discussing the case where the Crown grants land in trust or reserves
or dedicates land
for public purposes. This would also be an exercise by the
Crown of its rights as sovereign. But clearly it was not regarded by
Brennan J
as sufficient (without more) to extinguish native title. That title remained a
burden on the Crown's radical title despite
such exercise of sovereignty.

The first theory is not compatible with the authority of the Court in Mabo
[No 2]. The decision of the Court in that case introduced a new and
radical notion. It disturbed the previous attempts of the Australian
legal
system to explain all estates and interests in land in this country by
reference to the English legal doctrine of tenure derived
ultimately from the
sovereign as Paramount Lord of the colonies as he or she had been in England
after the Conquest [665] . Now a different
source of title must be accommodated by the recognition of the continuance of
native title as a burden on the Crown's
radical title. Something more is
needed to remove that burden, and to extinguish the native title, than a mere
exercise by the Crown
of rights of dominium in respect of the land. Native
title might be subject to extinguishment. However, it is not as fragile as
the
first theory propounded.
Factual inconsistency doctrine rejected

It is convenient to deal next with the third theory, viz that in order to see
whether native title, as recognised in Mabo [No 2], had been
extinguished by a grant of an estate or interest in land said to be
inconsistent, it is necessary to examine the facts relating
to the exercise of
rights under such estate or interest. I took this theory to be inherent in the
submissions for the Thayorre.
Some support for the proposition was derived
from passages in the judgments of the Court in Mabo [No 2]. For
example, Brennan J, discussing the nature and incidents of native title said [666] :

"Native title has its origin in and is given its content by the traditional
laws acknowledged by and the traditional customs observed
by the indigenous
inhabitants of a territory. The nature and incidents of native title must be
ascertained as a matter of fact by
reference to those laws and customs. The
ascertainment may present a problem of considerable difficulty ... It is a
problem that
did not arise in the case of a settled colony so long as the
fictions were maintained that customary rights could not be reconciled
'with
the institutions or the legal ideas of civilised society' [667] , that there was no law before the arrival of the
British colonists in a settled colony and that there was no sovereign law-maker
in the territory of a settled colony before sovereignty was acquired by the
Crown. These fictions denied the possibility of a native
title recognised by
our laws. But once it is acknowledged that an inhabited territory which became
a settled colony was no more
a legal desert than it was 'desert uninhabited' in
fact, it is necessary to ascertain by evidence the nature and incidents of
native
title."

By parity of reasoning, it was argued, the survival, persistence and revival of
native title under the Australian legal system, notwithstanding
a superimposed
title from the Crown, was in every case a question of fact. The Crown (acting
under legislation) might have the power
to extinguish native title. Whether it
had done so in the particular case would depend, not upon theoretical
possibilities discovered
by an examination of the nature of legal instruments,
but by evidence concerning the possible reconciliation or inconsistency of
the
two legal regimes and the concurrent enjoyment of rights deriving from them, as
a matter of fact. It was the essence of the
Thayorre's primary submission that
native title was title outside the common law. In its nature, it had nothing
whatever to do with
the feudal system of tenures. Because it had its own
sources and integrity, it could not be destroyed by a legal theory outside
its
own regime [668] . It could expire by factual
circumstances: dispossession, acquisition, surrender or abandonment. But even
then it might later
revive. The Australian legal system might determine
whether, and if so when, it would grant recognition and enforcement to native
title. But the title itself, being derived from an entirely different legal
source, would continue to exist whatever the Australian
legal system said,
until it was acquired from, or surrendered or abandoned by, the indigenous
people themselves.

It was suggested that this theory would apply equally to native title in
respect of land granted in fee simple as to land demised
by lease, including a
pastoral lease. Dicta in Mabo [No 2] suggest that the grant by the
Crown of title in fee simple necessarily extinguishes native title [669] . That conclusion is compatible with
earlier Privy Council decisions explaining how native title could be lost "[b]y
the will of
the Crown and in exercise of its rights" [670] . The Thayorre did not resile from their argument.
Whether, in a particular case, native title would be recognised by the common
law was, for the Thayorre, a question of fact to be answered by examining the
current state of the native title in order to see whether
it could be
reconciled with the exercise of the competing title granted under Australian
law. If it could not, the latter would
prevail, simply because of the
ascendancy and power of the Australian legal system. The native title would
continue to exist. It
would simply not be enforceable in an Australian
court.

Whilst this submission has certain attractions, it is supported neither by
legal authority applicable to this country nor by legal
principle or policy.
It may be conceded that some of the passages in the reasoning of Mabo [No 2]
can be read to suggest that, in a particular case, where native title is
claimed and extinguishment is asserted, the task is to find
the factual, as
distinct from the legal, content of a supervening title from the Crown. The
contemplation that native title could
survive the expansion of the Crown's
radical title into a grant of land on trust or for reserves [671] or is lost only when a school, a courthouse or a public
building is erected on such land [672] , may
be interpreted as suggesting that the search in each case is for evidence about
the factual use of the land. However, this
is not the legal principle which I
take Mabo [No 2] to establish. What is in issue is title in
respect of land. It is therefore a question about the existence or otherwise
of rights of a legal character in respect of the
land. As such, it is not a
question about the intention or actions of the Aboriginal parties, any more
than of the Crown or governmental
officials. The question is not whether
indigenous people have in fact been expelled from traditional lands but
whether those making claim to such lands have the legal right to exclude
them. The parties have come to the Court for the elucidation of their legal
rights. I read the passages in Mabo [No 2] as saying no more than that
facts will generally have to be explored in order to decide whether claims to
native and other title can
be established [673] . The proof of native title by detailed evidence is
necessary because such title, unlike Australian title from the Crown and other
title under Australian law, is not inscribed in official records.

The theory accepted by this Court in Mabo [No 2] was not that the
native title of indigenous Australians was enforceable of its own power or by
legal techniques akin to the recognition
of foreign law. It was that such
title was enforceable in Australian courts because the common law in Australia
said so [674] .

To suggest that the actual conduct of a pastoralist, under a pastoral lease,
could alter the rights which the pastoralist and others
enjoyed under the
lease, would be tantamount to conferring on the pastoralist a kind of unenacted
delegated power to alter rights
granted under the Land Acts . This
cannot be. It would introduce a dangerous uncertainty in the entitlements to
land of all people in Australia to adopt such
a principle. The search must
therefore be one which is first directed at the legal rights which are
conferred on a landholder by
the Australian legal system. This is because
legal title and its incidents should be ascertainable before the rights
conferred are
actually exercised and indeed whether they are exercised or not.
In some cases the grant of such legal rights will have the inevitable
consequence of excluding any competing legal rights, such as to native title.
But in other cases, although the native title may be
impaired, it may not be
extinguished. The answer is to be found in the character of the legal rights,
not in the manner of their
exercise [675] .

Arguments for extinguishment of native title

I therefore return to the second theory about the extinguishment and
impairment of native title rights, which is the one that I take
Mabo [No 2]
to have established and which I would apply in this case. The question is
whether the legal character of the pastoral leases in the
present case,
discernible from their terms and the rights afforded under them, had the
necessary legal effect of extinguishing the
native title claimed by the Wik and
Thayorre.

Several strong arguments were marshalled to support extinguishment:

1. As a matter of authority, the opponents to the claims of the Wik and the
Thayorre relied heavily on the passage in the reasons
of Brennan J in Mabo
[No 2] already cited [676] . Even if this
were not part of the holding in the case, binding until reversed or qualified,
it represented the only consideration
by this Court of the effect of the grant
of a lease on native title [677] . In the
application and development of this body of law, it is highly desirable that
consistency and predictability should be maintained.
Moreover, it is
undesirable that the basic tenets of Australian land law should be disturbed,
more than is absolutely necessary,
by the belated recognition of native title.

2. It was argued that the absence of express abolition of native title by the
Land Acts under which the pastoral leases in question were granted was
not important for several reasons:

(a) Both the Land Acts in question and the instruments granting the
relevant interests are expressed in terms of a "lease". A lease is a legal
interest
well known to the common law. Where a word such as "lease" is used in
the Acts of Parliament, it should be presumed that it was
the purpose of the
legislators to use the word in its ordinary meaning. That meaning includes the
concept that it is the intention
of the parties that the grantee will be
entitled to exclusive possession of the property, the subject of the lease.
Where it is otherwise,
what is granted is a licence and not a lease [678] . Conceding that the word "lease" is
sometimes used where "licence" is meant [679] , it should nonetheless be assumed, in the technical
area of land law, the subject of successive and detailed enactments of the
Queensland
Parliament, that the drafters knew what a "lease" was in law and
intended to use the word in the technically accurate sense [680] . Any doubts or confusion which they may have had at an
earlier historical time would have been removed by decisions of the Queensland
Supreme Court before the 1910 and 1962 Land Acts were enacted and before
the grant of any of the pastoral leases in issue here [681] . It is of the essence of a "lease" in the ordinary
meaning of that term, that it must be for an estate or term less than the
lessor
has in the property. Otherwise, an instrument which passes the entire
interest of the grantor is a conveyance or assignment and
not a lease. It was
this attribute of a lease which was critical to the respondent's argument
resting on the reversion expectant [682] .
According to this notion, it was inherent in the Land Acts (although not
expressed in them) that, in order that it might grant a lease to the lessee,
the fundamental legal character of the
Crown's interest in the subject land
must have changed. Its title had "expanded from the mere radical title and, on
the expiry of
the term, becomes a plenum dominium" [683] . Such a metamorphosis was implicit in, and necessary
to, the Crown's capacity to found a grant of a leasehold interest, including
a
pastoral leasehold under statute. Not only was this an essential postulate to
sustain the grant of a legal right called a "lease".
It was equally necessary
to explain the Crown's interests, elsewhere reflected in the Land
Acts , to protect the land and to receive the reversion on expiry,
forfeiture or surrender of the lease [684] .
The successive Land Acts, by expanding the Crown's dominium in order to
sustain the grant of interests called "leases" had necessarily moved from the
"logical
postulate" of a radical title to the holding of an interest in the
particular parcel of land which was sufficient to expel any residual
native
title.

(b) Alternatively, or additionally, the lessee's entitlement to exclusive
possession which was itself sufficient to extinguish native
title in the land
was supported by both general and specific references to the instruments
creating the pastoral leases and the Land Acts under which they were
issued. The instrument of lease under the 1910 Act is titled "Lease of
Pastoral Holding ...". The recital
refers to the entitlement of the lessee to
"a Lease" for a specified "term" and at a yearly payment called "rent". The
operative
words of the instrument are expressed in the name of the sovereign to
"Demise and Lease [the specified lands] unto the said [lessee]
and [its] lawful
assigns". This is the normal language of a lease. The provisions under the
1962 Act were almost identical. They tend to reinforce the suggestion that
the interest being granted was intended to be an ordinary
leasehold interest,
although for a specific objective, namely "for pastoral purposes only". To the
language of the instrument must
be added the language of the Act itself. Thus
s 6 of the 1910 Act provides for the Governor in Council, in the name of the
sovereign
to "grant in fee-simple, or demise for a term of years, any Crown
land within Queensland". Section 6(2) should be noted. It provides:

"The grant or lease shall be made subject to such reservations and conditions
as are authorised or prescribed by this Act or any
other Act, and shall be made
in the prescribed form, and being so made shall be valid and effectual to
convey to and vest in the
person therein named the land therein described for
the estate or interest therein stated."

(c) Far from being an indication that the interest granted by a pastoral lease
under the Land Acts was of a different character from a lease at common
law, the several exceptions envisaged by the Land Acts were called in
aid to reinforce the argument that the Land Acts were thereby
contemplating that, with the "lease", came the ordinary common law entitlement
to exclusive possession from which derogations
had to be specifically
authorised [685] .

In these different ways, the arguments of extinguishment were advanced. At
the highest level of abstraction, by the assertion of
plenum dominium
converting the Crown's radical title to a reversion expectant incompatible with
the survival of native title. At
a lower level of abstraction, by the language
of the Land Acts and the relevant pastoral leases, affording legal
rights of exclusive possession to the entirety of the land referred to in the
leases.
At the lowest level of abstraction, by reference to the detailed
provisions of the Land Acts, it was argued that the rights conferred by
the pastoral leases were incompatible with the continuance of native title.
Such title
was therefore extinguished [686] .

Significance of non-entry

It will be remembered that unlike the Holroyd River Holding, the successive
lessees of the Mitchellton Holding never went into possession.
This fact,
which was undisputed, led to a submission for the Thayorre which is particular
to their case and does not affect the
case for the Wik. For the Thayorre, it
was put that, until a lessee goes into possession, it does not have an estate
in possession
but a mere interesse termini. Therefore, it was
submitted, the estates of the Mitchellton Holding lessees vested in interest
but never in possession. As a consequence,
assuming (contrary to the
Thayorre's primary submission) the principles of tenure were attracted to the
pastoral leases executed
in respect of the Mitchellton Holding, the Crown never
acquired a reversion expectant which was the postulate for the expansion of
the
Crown's radical title to the plenum dominium that was said to extinguish the
residual native title in the land.
To support this argument, the Thayorre relied on what was advanced as a basic
principle of the common law of leases, as expressed
in Coke Upon
Littleton [687] :

This rule was referred to, without disapproval in Mann, Crossman &
Paulin Ltd v The Registrar of the Land Registry [688] . It has now been abolished by statute in Queensland,
but such abolition did not occur until 1975 [689] .

Attractive though it might be to find a rule of the common law of leases that
would forestall the legal operation of the grant of
the pastoral leases over
the Mitchellton lands, considering that they were never taken up and no entry
was ever made under them,
I do not believe that this argument can prevail in
the face of the operation of s 6(2) of the 1910 Act. It was under that Act
that
both of the Mitchellton leases were granted. By that sub-section (set out
in its entirety above) the lease itself is, by force of
Statute, declared:
"... valid and effectual to convey to and vest in the person therein named the
land therein described for the estate or interest
therein stated."

Any residual common law principle which required physical entry to give rise
to the effectiveness of a lease and the reversion expectant,
is swept aside in
the case of a pastoral lease granted under the 1910 Act by the provisions of
the legislation. Under the 1910 Act,
execution of the lease, alone, is
sufficient. Drummond J was right to so determine. The submission for the
Thayorre, that s 6(2)
of the 1910 Act was merely providing for matters of form,
must be rejected.

Native title was not necessarily extinguished

This conclusion takes me, therefore, to the basic argument, advanced for the
Wik and the Thayorre, to sustain the suggested survival
of their native title
notwithstanding the pastoral leases granted in this case. Their argument was
simple and correct. Pastoral
leases give rise to statutory interests in land
which are sui generis . Being creatures of Australian statutes, their
character and incidents must be derived from the statute. Neither of the Acts
in question
here expressly extinguishes native title. To do so very clear
statutory language would, by conventional theory, be required. When
the Acts
are examined, clear language of extinguishment is simply missing. On the
contrary, there are several indications which
support the contention of the Wik
and the Thayorre that the interest in land which was granted to the pastoralist
was a limited one:
for "grazing purposes only", as the leases stated. Such an
interest could, in law, be exercised and enjoyed to the full without
necessarily extinguishing native title interests. The extent to which the two
interests could operate together is a matter for further
evidence and legal
analysis. Only if there is inconsistency between the legal interests of the
lessee (as defined by the instrument
of lease and the legislation under which
it was granted) and the native title (as established by evidence), will such
native title,
to the extent of the inconsistency, be extinguished.

The foregoing conclusions are supported by the following considerations:

1. Australia's peculiar colonial needs and environmental opportunities called
forth legislation on land use which was increasingly
particular and special to
this country. The prerogative power of the sovereign to dispose of waste lands
of the Crown in New South
Wales (then including the present Queensland) was
removed by the Sale of Waste Lands Act 1842 (Imp) [690] . Thereafter, the grants of interest in land were made
under legislation, eventually enacted exclusively by local legislators. The
Queensland legislation on pastoral leases, commencing with the Pastoral
Leases Act 1869 (Q) was, as I have noted, multifarious, detailed and
peculiarly local. Whereas in England, most of the instruments by which
land
was first granted had been lost (resulting in a reliance on fictions, the
general rules of the common law and evidence of practice),
in Australia, and
specifically in Queensland, it is virtually always possible to trace the grant
to an instrument and to the legislation
by which the instrument was
authorised [691] . Dr Fry commented:

"The Crown tenures of mediaeval England were as difficult to classify, and the
incidents of such tenures were as multitudinous and
multifarious, as are the
Crown tenures and tenurial incidents of modern Australian land law, especially
in Queensland and New South
Wales. Tenurial incidents in mediaeval England
were, however, peculiarly appropriate to the feudal period, and those in modern
Australia
are of a different nature." [692]

It is a mistake to import into the peculiar Australian statutory creation, the
pastoral lease, all of the features of leases in
English leasehold tenures
dating back to medieval times. Unless such importation is necessary, either
for reasons of the language
or imputed purpose of the statute, it is much more
appropriate to give content to the statutory pastoral lease by reference to the
statute, unencumbered. Doing so represents a more orthodox approach to the
construction of an Australian statute, made for peculiar,
and in some ways
unique, local land conditions. Tenure is already, to some extent, a fiction in
England. It is a fiction increasingly
questioned [693] . Why, in such circumstances, it should be imputed to
the Queensland Parliament in 1910 and 1962 that it had imported all of the
incidents of the English common law of leases is not immediately plain.
Pastoral leases covered huge areas as extensive as many a
county in England and
bigger than some nations. In these circumstances, it seems distinctly unlikely
that there can be attributed
to the Queensland Parliament an implied purpose of
granting a legal right of exclusive possession to the pastoralist (including as
against Aboriginals known to exist on the land and unmolested in their
continuing use of it) where that Parliament held back from
expressly so
providing.
2. The Land Acts regulate the grant of leases. They do not expressly
confer on the Crown the estate necessary to grant a lease. The historical
reason
for this is clear enough. At the time of the enactments, it was assumed
that the Crown exclusively enjoyed the power to grant leasehold
and other
interests simply as an attribute of its sovereignty. Only now, following
Mabo [No 2], has it become clear that, contrary to the earlier
understanding, with sovereignty came no more than a radical or paramount title
and this was burdened with native title which the common law would, in some
circumstances, uphold. To invent the notion, not sustained
by the actual
language of the Land Acts , that the power conferred on the Crown to
grant a pastoral leasehold interest was an indirect way of conferring on the
Crown "ownership"
of the land by means of the reversion expectant involves a
highly artificial importation of feudal notions into Australian legislation.
It would require much plainer statutory provisions to convince me that this was
what the Queensland Parliament did in 1910 and 1962
when the Land Acts
were enacted. That legislation is silent on the point precisely because the
notion that the legislators (and drafters) were obliged
to confer such a power
on the Crown would have been furthermost from their minds. What is therefore
suggested, upon analysis, is
that, by a new legal fiction, such a purpose
should be invented, retrospectively attributed to the Queensland Parliament and
read
into the Land Acts in order to afford the estate out of which the
Crown might grant a pastoral lease. But if the Crown's power to make such a
grant,
properly analysed, exists simply because Parliament has said that it
does, that is sufficient. Importing into the Land Acts notions of the
common law apt for tenurial holdings under the Crown in medieval England, and
attributing them to the Crown itself,
piles fiction upon fiction. As it is not
expressed in the legislation, I would not introduced it.

3. As to the argument that the very word "lease" and the other words familiar
to leasehold interests ("demise", "rent", "assigns")
are used in the Land
Acts , I am quite unconvinced that they are sufficient to import all of the
features of a common law lease. The case books are full of
warnings against
such a process of reasoning, both generally [694] and particularly in the context of the use of words
such as "lease" and "licence" [695] . In R
v Toohey; Ex parte Meneling Station Pty Ltd [696] , this Court was obliged to consider a statutory
"grazing licence" as either proprietary or non-proprietary in nature. Mason J
observed
that the licence [697] :

"has to be characterised in the light of the relevant statutory provisions
without attaching too much significance to similarities
which it may have with
the creation of particular interests by the common law owner of land".

The same point has been made many times by this Court and by other courts of
high authority. Long ago, in O'Keefe v Malone [698] , the Privy Council, in a case involving a statutory
licence, emphasised that the correct approach for a court to take was to
examine
the rights actually conferred on the grantee by the instrument rather
than implying from the mere use of the word "licence" or "lease"
all of the
incidents common to those expressions in a private contract. This is not to
say that some features of an ordinary "lease"
may not be imported into the
terms where used in a statute. For example, the lessee would be entitled
(exceptions and reservations
aside) to enforce as against the Crown an
entitlement to be given quiet enjoyment. The lessee would be entitled to seek
relief in
equity in certain circumstances as under a private lease [699] . The lessee would have the statutory
right to invoke the assistance of the Crown to expel trespassers who had no
right or title
to be upon the land [700] .
However, these conclusions fall a long way short of requiring that the title
conferred by a pastoral lease upon the lessee to use
the land "for pastoral
purposes only" be extended to exclude Aboriginals using the land in the
traditional way. This is particularly
so where they are on the land, as
Mabo [No 2] now makes clear, in pursuit of a native title which the
common law will recognise and enforce so far as it is not inconsistent with
the
pastoralist's right to use the land "for pastoral purposes only". The context
in which the legislation on pastoral leases was
enacted in Queensland also
makes it highly unlikely that this was the intention of Parliament. As the
historical materials demonstrate,
it was known that there were substantial
numbers of Aboriginals using the land, comprised in the pastoral leases,
according to their
traditional ways. It was not government policy to drive
them into the sea or to confine them strictly to reserves. In these
circumstances,
it is not at all difficult to infer that when the Queensland
Parliament enacted legislation for pastoral leases, it had no intention
thereby
to authorise a lessee to expel such Aboriginals from the land. Had there been
such a purpose, it is not unreasonable to
suggest that the power of expulsion
would have been specifically provided. In such huge, remote and generally
unvisited areas as
ordinarily comprise pastoral leases, it may be assumed that
Parliament, had it been questioned about the position of Aboriginals,
would
have responded as the Northern Protector of Aboriginals did at the turn of the
century.

4. There are several provisions in the Land Acts which reinforce the
foregoing conclusions. The Land Act 1897 (Q) contained, in s 235, a
provision for the removal of trespassers. This provision became common in the
Queensland legislation.
By regulations made under that Act, the form of
warrant for the removal of trespassers read:

"[t]hat our Sovereign Lady the Queen is entitled to possession of the said
land; These are therefore to command you forthwith to
enter into and upon the
said land, and to dispossess and remove the said [trespassers] ... and to take
possession of the same on
behalf of our said lady the Queen."

The equivalent provision in the 1910 Act was s 204. In the 1962 Act it
was s 373(1). These sections uniformly provide for the removal of trespassers
by the taking of possession "on behalf
of the Crown". This is one of a number
of indications in the Land Acts that, by their terms, exclusive
possession did not repose in the lessee. A residue of actual possessory right
was retained to the
Crown, not a mere reversion expectant. Both the 1910 and
1962 Acts contained provisions that pastoral leases should be subject to
reservations and conditions authorised or prescribed by the Acts [701] . Although such exceptions to the right
of peaceful enjoyment of the entire land referred to in the lease do not throw
much light
on the legal character of the interest thereby created, by their
number and variety, they do emphasise the point that the interest
in the land
which was granted by a pastoral lease was a peculiar statutory interest. It is
an interest peculiar to, and apt for,
the conditions of the countryside
described. It was not one conferring on the lessee a general right of
exclusive possession simply
because what was granted was called a "lease".

5. Confining the rights granted to the lessee to those apt for the
circumstances of a pastoral lease involves no distortion of the
language of the
Land Acts . On the contrary, it simply applies to the Land Acts
the ordinary rule of statutory construction that the powers conferred by the
legislative language on a donee of such powers are,
and are only, those stated
or necessary for the achievement of the stated objects [702] . In the context of a pastoral lease, the interests
acquired by the lessees to achieve the objects of the Land Acts are not
dissimilar to those which, at common law, were known as profits &agrave;
prendre [703] . However, because of my view
that the rights conferred on the lessee under a pastoral lease in Queensland
are sui generis and to
be discovered from the legislation creating those
rights, I see no reason to pursue any analogy to profits &agrave; prendre or
other
property interests developed in other contexts [704] .

6. There are further reasons of legal principle which reinforce this approach
to the Land Acts under which the pastoral leases here were granted.
There is a strong presumption that a statute is not intended to extinguish
native
title [705] . The intention to
extinguish native title must be clear and plain, either by the express
provision of the statute or by necessary
implication [706] . General provisions of an Act are not construed as
extinguishing native title if they are susceptible to some other construction [707] . Whether by necessary implication a
statute extinguishes native title depends upon the language, character and
purpose which the
statute was designed to achieve. This is species of a
general proposition applied by courts in the construction of legislation.
It
is applied out of deference to the presumption that Parliament would not
normally take away the rights of individuals or groups,
without clearly stating
such a purpose [708] . It may be said that
the Land Acts under which the present pastoral leases were granted, were
made by the Queensland Parliament before the survival of native title was
made
clear by this Court in Mabo [No 2]. That is true. It is equally true
that a court, in giving meaning to the language of an Act, will ordinarily take
into account the
circumstances and conditions contemporaneous to its
enactment [709] . However, the principle
protective of the rights of Aboriginal people is not new to the common law. It
existed in Australia in
colonial times. Often it was explained in terms of the
duty which the Crown owed, in honour, to native people who were under the
Crown's protection [710] . Although the
legislators in 1910 and 1962 did not know of the existence of native title, it
should be presumed that, had they known,
Parliament would have acted to protect
such rights against uncompensated expropriation [711] . Especially would it have done so in circumstances
where the expropriation asserted was alleged to have occurred by a legal
fiction,
viz the grant of a leasehold interest but one whose peculiarities
would leave traditional Aboriginal life totally, or largely, undisturbed.
In
Canada, the principle has been approved that courts should attribute to
Parliament the objective of achieving desired results
with as little disruption
as possible of the rights and interests of indigenous peoples and affecting
their rights and status no
more than is necessary [712] . Moreover, the principles of statutory construction to
which I have referred are by no means new principles. There were many cases
before and at the time of the enactment of the early pastoral leases
legislation which adopted analogous principles [713] . Existing proprietary rights might be affected by
Parliament acting within, and in accordance with, its constitutional powers [714] . However, to deprive a person of
pre-existing proprietary interests, the legislation enacted by Parliament must
clearly do so, either
by express enactment [715] or by necessary implication [716] . The problem of interference with proprietary rights
over land (frequently rights of way) by or under railway construction
legislation
was a question commonly before the courts in the 19th and early
20th centuries. Where Parliament had not expressly abolished proprietary
rights, the court typically asked itself whether "[t]he continued use of the
land ... would render the exercise of the powers expressly
conferred on the
Constructing Authority impossible" [717] . If
such a question is posed in relation to native title rights and the rights
conferred on lessees of pastoral leases under the
successive Land Acts
of Queensland, the answer must be in the negative. The exercise of the
leasehold interests to their full extent would involve the
use of the land for
grazing purposes. This was of such a character and limited intensity as to
make it far from impossible for the
Aboriginals to continue to utilize the land
in accordance with their native title, as they did. In that sense, the nature
of the
interests conferred by a pastoral lease granted under the successive
Land Acts , was not, of its legal character, inconsistent with native
title rights. Whether, in particular cases, and in particular places,
native
title rights, in their operation, were inconsistent with the rights enjoyable
under the pastoral lease is a matter for evidence.
Because the interests under
native title will not be uniform, the ascertainment of such interests, by
evidence, is necessary in
order to judge whether such inconsistency exists as
will extinguish the particular native title proved. If inconsistency is
demonstrated
in the particular case, the rights under the pastoral lease will
prevail over native title [718] . If not, the
native title recognised by our law will survive.

7. Is there any legal principle or legal policy which would cast doubt on the
foregoing conclusion and require that such outcome
be reconsidered? I think
not. No new doctrine is adopted which alters the course set by the decision of
this Court in Mabo [No 2]. There is no radical departure from the
fundamental principles of Australian law, including Australian land law [719] . It is true that some remarks in Mabo
[No 2] , not necessary to the actual decision in that case, have been
reconsidered. The suggestion that it was necessary and inherent in the special
Queensland legislation creating the uniquely
Australian property interest of a
pastoral lease to import the paraphernalia of English feudal leasehold notions
has been rejected.
It is not what the Queensland legislature said in its
enactments. It is not necessary in order to make the legislation effective.
It is unhistorical and artificial in the concept which it would import into the
function of the Crown in Australia as the paramount
grantor of interests in
land. The fundamental rule in Mabo [No 2] is unaffected.

When, therefore, the legal interests granted by the pastoral leases here are
analysed and considered with our present knowledge
that native title survived
annexation of the Australian lands to the Crown, the nature of such legal
interests is such that they
do not necessarily extinguish native title. This
conclusion can more comfortably be reached with the assistance of the
presumption
that, without express words or necessary implication, Australian
legislation will not be construed to take away proprietary rights,
particularly
without compensation. The holders of pastoral leases are left with precisely
the legal rights which they enjoyed pursuant
to the leases granted under the
Land Acts "for pastoral purposes only". Those rights will prevail, to
the extent of any inconsistency with native title. This judgment is
concerned
only with the legal interests of the lessees under the Queensland legislation
examined in this case. It is the peculiarity
of the legal rights conferred by
such statutory leases, in the factual setting in which they were intended to
operate, which permits
the possibility of coexistence of the rights under the
pastoral lease and native title. Such would not be the case where an estate
or
interest in fee simple had been granted by the Crown. Such an interest, being
the local equivalent of full ownership, necessarily
expels any residual native
title in respect of such land. The position of the countless other leasehold
interests in Queensland,
described by Dr Fry [720] and of the pastoral and other leasehold interests
elsewhere in Australia must remain to be elucidated in later cases. It is true
that this result introduces an element of uncertainty into land title in
Australia, other than fee-simple. However, this is no more
than the result of
the working out of the rules adopted in Mabo [No 2] .

There were many reasons of legal authority, principle and policy for adhering
to the understanding of the law which existed prior
to Mabo [No 2] [721] . But no party before this Court sought
to reargue the correctness of that decision . So it falls to the Court
to determine one of its logical consequences. I forbear, of my own motion, to
reagitate the wisdom of the
step taken by the Court in Mabo [No 2].
Once that step was taken, ordinary common law principles for the protection
of a proprietary right, found to have survived British
settlement, extended to
the protection of the indigenous peoples of Australia, in exactly the same way
as the law would protect other
Australians. Because pastoral leases in
Queensland are not necessarily, in law, incompatible with the survival of
native title rights,
the latter survived unless shown, by particular evidence,
on the particular facts, to be inconsistent and thus extinguished.

A large number of other submissions were received by the Court on the pastoral
leases question. Determination of them, in these
already extended reasons, is
not necessary. What has been stated is sufficient to bring me to my
conclusions and to the orders which
I would propose on this point.

The appeal on this question must be upheld. The answers given by Drummond J
in the Federal Court to the questions separated for
determination must be
amended accordingly. For the reasons explained above, no declaration or other
relief in this Court is sought
or is appropriate. With the answers to the
questions given by the Court in those matters still in issue, the proceedings
should
be returned to the Federal Court for trial. At such trial, evidence
will be required to give content to the survival and requirements
of the native
title alleged by the Wik and the Thayorre which, for the purpose of these
proceedings, it has been assumed that they
can prove.

STATUTORY AGREEMENTS

Agreement with Comalco authorised by statute

Questions 4 and 5 concern only certain claims by the Wik propounded in their
further amended statement of claim. So far as question
4 is concerned, the
claims are maintained against the State of Queensland ("Queensland') and the
Commonwealth Aluminium Corporation
Pty Limited ("Comalco"). There was no
dispute as to the facts, so far as the preliminary determination of the
question of law was
concerned. For that purpose, Queensland and Comalco
assumed that the Wik would make out the various defaults alleged (including
breach of the requirements of procedural fairness and breach of fiduciary duty)
whilst strenuously denying that such defaults had
occurred.

In 1957, the Government of Queensland procured the passage through the
Parliament of Queensland of the Commonwealth Aluminium Corporation Pty
Limited Agreement Act 1957 (Q) ("the Comalco Act "). The Act was given the
Royal Assent on 12 December 1957. As originally enacted, its relevant
provisions
were:

" 2. The Premier and Chief Secretary is hereby authorised to make, for
and on behalf of the State of Queensland, with Commonwealth Aluminium
Corporation Pty Limited ... the Agreement a copy of which is set out in the
Schedule to this Act ...

3. Upon the making of the Agreement the provisions thereof shall have
the force of law as though the Agreement were an enactment of
this Act.

The Governor in Council shall by Proclamation notify the date of the making of
the Agreement.

4. The Agreement may be varied pursuant to agreement between the
Minister for the time being administering this Act and the Company
with the
approval of the Governor in Council by Order in Council and no provision of the
Agreement shall be varied nor the powers
and rights of the Company under the
Agreement be derogated from except in such manner.

Any purported alteration of the Agreement not made and approved in such manner
shall be void and of no legal effect whatsoever.

Unless and until the Legislative Assembly, pursuant to subsection four of
section five of this Act, disallows by resolution an Order
in Council approving
a variation of the Agreement made in such manner, the provisions of the
Agreement making such variation shall
have the force of law as though such
lastmentioned Agreement were an enactment of this Act.

5 (1.) Any Proclamation or Order in Council provided for in this Act or
in the Agreement may be made by the Governor in Council ...

(2.) ...

(3.) Every such Proclamation or Order in Council shall be published in the
Gazette and such publication shall be conclusive evidence
of the matters
contained therein and shall be judicially noticed.

(4.) Every such Proclamation or Order in Council shall be laid before the
Legislative Assembly within fourteen days after such publication
if Parliament
is sitting for the despatch of business; or, if not, then within fourteen days
after Parliament next commences to
so sit.

If the Legislative Assembly passes a resolution disallowing any such
Proclamation or Order in Council, ... such Proclamation or
Order in Council
shall thereupon cease to have effect, but without prejudice to the validity of
anything done in the meantime."

The agreement authorised by the Comalco Act ("the Comalco Agreement") was
executed by the Premier and Chief Secretary of Queensland
in apparent
compliance with s 2 of the Act
and purportedly "for and on behalf of the State
[of Queensland]", and also by Comalco,
on 16 December 1957. On 22 March 1958,
the
Proclamation notifying the date of the making of the Comalco Agreement was
published
in the Queensland Government Gazette. The conditions in the
Comalco Agreement being satisfied, Comalco became entitled, pursuant to cl 8,
to the grant of a "Special Bauxite
Mining Lease for the western bauxite field
for an initial term of eighty-four (84) years commencing on the first day of
January,
1958". Pursuant to cl 11(c) of the Comalco Agreement, Comalco also
became entitled to occupy the area to be leased and to exercise
all the rights
and powers intended to be granted under the lease, pending the issue of the
instrument of lease. The Special Bauxite
Mining Lease (identified as ML 7024)
was issued on 3 June 1965. It was in the form set out in the Third Schedule to
the Comalco
Agreement, in conformity with cl 11(a) of that Agreement. The
lease was thereafter varied on a number of occasions in the manner
provided for
by s 4 of the Comalco Act .

The primary submission of the Wik in their Statement of Claim was that the
enactment of the Comalco Act , the making of the Comalco
Agreement and the
granting of the lease did not extinguish native title in the areas the subject
of Comalco's
entitlements under
the foregoing provisions. However, against the
possibility that this primary submission might fail and that the
Comalco Act ,
the
Comalco Agreement and the lease referred to, singly or in combination,
might be so inconsistent with the Wik's native title
rights
as to extinguish
them, the Wik sought to advance the claims against Queensland and Comalco which
are the subject of question
4.
Those claims were:

(a) That the Comalco Agreement and the lease were invalid and of no effect,
being made in breach of the requirements of procedural
fairness to which the
Wik were entitled (basically notification that their interests might be
adversely affected by the decision
to enter into the Comalco Agreement or
otherwise over-ridden to the advantage of the private rights and interests of
third parties) [722] .

(b) That the Comalco Agreement and the lease were invalid and of no effect on
the ground that they were negotiated and executed in
breach of trust or
fiduciary duty on the part of Queensland, in which breach Comalco knowingly
participated [723] .

(c) That Comalco was obliged to account to the Wik for profits made by Comalco
in consequence of the breach of fiduciary duty by
Queensland and that there
should be a declaration that Comalco held the lease as constructive trustee for
the Wik [724] .

(d) That Comalco had been unjustly enriched by the benefits which it received
from the making of the Comalco Agreement, the grant
of the lease and the
operations conducted pursuant thereto, and was thereby obliged to account to
the Wik for such benefits [725] .

(e) That Comalco should be enjoined from continuing its operations pursuant to
the Comalco Agreement and lease because it had no
lawful right to conduct the
operations once the Comalco Agreement and the lease were found invalid [726] .

The Wik did not contend that the Comalco Act was invalid. Queensland and
Comalco successfully argued in the Federal Court that
the Comalco Act ,
the Comalco Agreement it authorised and the lease which it envisaged
together, expressly or by necessary implication, denied the Wik
any remedy for
the wrongs alleged, assuming they could prove them. The Wik denied that this
was the effect of the Comalco Act or
of the Comalco Agreement and lease made
under it.

Decision of the Federal Court

In approaching the operation of the Comalco Act , Drummond J had the
benefit of the decision upon that issue of the Full Court of the Supreme Court
of Queensland in Commonwealth Aluminium Corporation Ltd v
Attorney-General [727] . In issue in that
litigation was whether an amendment to the rate of royalties payable under the
Comalco Agreement, effected not
by means of the variation provisions in s 4 of
the Comalco Act but by a subsequent Act [728] , was inapplicable to vary the Comalco Act . The
Court held that, notwithstanding the Comalco Act , the Queensland
Parliament retained full legislative power to amend the Comalco Act and,
by later legislation, to affect the Comalco Agreement executed under that Act.
In response to the complaint that the formula
in s 4 of the Comalco Act
had the effect of elevating executive action to the status of legislation,
and so abrogating the legislative authority of the Parliament
of Queensland,
Wanstall SPJ pointed out that the Queensland Parliament retained its entire
legislative powers [729] . His Honour
rejected the attack on the validity of the Comalco Act and relied upon the
reasoning of the Privy Council in Cobb & Co Ltd v Kropp [730] .

In this Court the Wik shifted their attack. Many of the arguments which were
rejected in the Federal Court were abandoned. The
three arguments which were
advanced were:

(a) That the Federal Court had erred in reading the Comalco Act so
widely as to excuse Queensland and Comalco from any enforceable liability which
they respectively owed to the Wik.

(b) That so far as the Comalco Agreement was concerned, the most that the Act
did was to "authorise" the Premier to execute the Comalco
Agreement. This
should be read as falling short of imposing upon the Premier the obligation to
execute the Comalco Agreement . It permitted him to do so if he so
decided, after satisfying himself that all relevant matters and interests had
been taken into account
(including the entitlements of the Wik). It thereby
implicitly preserved the obligation to adhere to procedural fairness and to
respect the Wik's fiduciary rights.

(c) That the lease was separate from the Comalco Agreement and did not form
part of it. Hence the lease did not have the force of
statute even though the
Comalco Agreement was given such status by the Comalco Act .

In the Federal Court, Drummond J rejected each of these submissions. In my
opinion his Honour was right to do so.

Attack on the Agreement: Implications of the Comalco
Act

The Wik urged that the proper construction of the Comalco Act
was that it was limited to its basic purpose of removing the need, under
the Mining Acts of Queensland, to follow for the granting of mining
leases, what the Privy Council described as a "chain of necessary steps to be
taken, of satisfaction to be achieved, of decisions to be made, of discretions
to be exercised" [731] . In this regard,
reference was made to the reasoning of the Full Court in the earlier litigation
concerning the Comalco Act [732] .
There seems little doubt that had the Comalco Act merely authorised the
execution of the Comalco Agreement, without the additional element provided by
s 3 which gave that agreement
statutory force, it would not have sanctioned the
provisions in the Comalco Agreement which otherwise conflicted
with the
Mining Act [733] . There is no
doubt that this was one of the purposes of the Comalco Act . The Wik
argued that the Act should be given a construction which avoided attributing to
Parliament any intention to validate what
would otherwise be a wrong done to a
third party. They submitted that it would require clear language to authorise
not merely the
bringing into force of the Comalco Agreement but also doing so
in breach of the duty of procedural fairness and of fiduciary duty,
as posited.
Compliance with those duties was assumed by Parliament. Breach was not
prospectively authorised or subsequently ratified
or validated by the statutory
and contractual arrangements which followed. The Wik acknowledged that a
passage in the judgment of
the Privy Council in The Corporation of
the Director of Aboriginal and Islanders Advancement v Peinkinna [734] was authority against their proposition.
They urged that this Court should not follow the opinion there expressed.

There are a number of answers to these arguments. Essentially, the function
of the Court is to give effect to the purpose of the
Queensland Parliament in
adopting the exceptional course found in the Comalco Act . In Hoani
Te Heuheu Tukino v Aotea District Maori Land Board [735] , the Privy Council referred to its earlier decision in
Labrador Company v The Queen [736] and
said:

"It is not open to the court to go behind what has been enacted by the
legislature, and to inquire how the enactment came to be made,
whether it arose
out of incorrect information or, indeed, on actual deception by someone on whom
reliance was placed by it."

Those remarks were repeated in the House of Lords in British Railways Board
v Pickin [737] , where it was further
decided that a litigant could not establish a claim in equity that the other
party, by fraudulently misleading
the legislature in successfully promoting a
Bill, had inflicted damage on the plaintiff. The Wik's argument concerning the
invalidity
of the Comalco Agreement, at least on the basis of their attacks on
that Agreement, conflicts with one of the obvious purposes of
adopting the
procedure evidenced in the Comalco Act . That procedure was designed to
confer a statutory status on the Comalco Agreement. To permit a party to
attack the validity of the
Comalco Agreement on the basis of alleged default or
impropriety in the steps leading to its execution would undermine and frustrate
the clear purpose of the legislation. Similarly, once the Comalco Agreement
was executed, the rights conferred by it were of the
same status as if they had
been conferred by legislation. The fact that other persons (such as the Wik)
may thereby have lost rights
previously belonging to them is simply the result
of the operation of legislation, the constitutional validity of which is not
impugned.
Subject to what follows, the Comalco Act had the purpose and effect
of giving legislative force to the Comalco Agreement. To permit
the Wik now to
question the validity
of the Comalco Agreement is contrary to the plainly
intended effect of the Comalco Act . Inherent in this conclusion is the
further one that damages and other relief cannot be obtained for alleged
breaches of duty resulting
in, or constituted by, the making of the Comalco
Act or in respect of the benefits flowing from the Comalco Agreement.
This is so because, once executed as Parliament provided, the Comalco
Agreement
itself took on the force of legislation [738] . This was not the usurpation of legislative power. It
was the exercise of it. The suggested injustice of the Comalco Agreement
and
of its consequences for the Wik is not then a matter for legal [739] but only for political redress.

It is not necessary in this case to consider what might be the consequences
where a procedural requirement of Parliament, or of
the particular Act, is not
complied with [740] . The Wik raised the case
where the authorised signatory to a statutory contract was substituted by an
imposter. There is no suggestion
of any such default in the Parliamentary
procedures or the legislative requirements applicable in this instance. I do
not regard
the suggested analogy as a valid one. Parliament is to be taken to
expect that its own procedures and its essential legislative
conditions would
be fulfilled. But the major purpose of the legislative endorsement of the
Comalco Agreement , adopted in the Comalco Act , was to avoid
claims of invalidity of the Agreement of the kind which the Wik, by the
applicable paragraphs of their statement of claim,
wish to ventilate.

Statutory authorisation and its effect

In a fall-back argument, the Wik asserted that, upon its true construction,
the provision in s 2 of the Comalco Act which "authorised" the Premier
to make the Comalco Agreement did not require him to do so. It merely
permitted that course. The
actual power to make the Comalco Agreement had to
be found elsewhere either under different legislation or under the residue of
the
Royal prerogative. In either such case, so it was argued, to move from the
authorisation to the execution of the Comalco Agreement,
the Premier would be
obliged by law to do so in conformity with the general law requiring compliance
with duties of procedural fairness
owed to persons affected and fiduciary
duties applicable to the case.

As was pointed out by Jordan CJ in Ex parte Johnson; Re MacMillan [741] , the word "`authorise', according to its
natural meaning, [ordinarily] signifies the conferring upon a person of a right
to do something
which, apart from the authorisation, he does not possess". But
Jordan CJ pointed out that the word, like any other word, takes its
meaning
from the context in which it appears. In that particular case he found that
"authorise" had to be read as including "requiring" [742] .

There is not much point in offering, as the Wik did, numerous cases where
"authorise" has been held to mean no more than to "sanction,
approve, and
countenance" [743] or "permit" [744] . Just as many cases could be found where
the word included the notion that the "authorised" course was required [745] .

In the present context, the employment of the term "authorised" was
appropriate to the relationship between the Parliament of Queensland
and the
Executive Government of the State. The detail and specificity of the Comalco
Act and the departure which it represents from
the ordinary law governing the
multitude of contracts made for and on behalf of the Crown
in a State [746] all suggest that this was an agreement
which the Queensland Parliament expected to be made. Once made, pursuant to
Parliament's
authority, the Comalco Agreement, exceptionally, had the force of
law as though itself part of the enactment.

In such a context, the suggestion that the Comalco Agreement needed a
different and additional foundation (which would permit an
attack on the
suggested defaults) is not persuasive. For this special agreement, a
particular regime of legislative authorisation
was laid down. It was
sufficient, without more, to support the making of the Comalco Agreement. In
this case, no other source of
power was required.
The lease was valid

The final challenge by the Wik to the rights of Comalco involved an attack on
the validity of the lease, ML 7024. Comalco conceded
in the Federal Court that
it could not contend that the mining lease itself had statutory status [747] .

The Wik argued that the lease, having no special statutory status, did not
preclude the maintenance of the claims set out in the
amended statement of
claim. They should therefore be entitled to a trial of their assertion that
the Executive Government, before
obeying the legislative command to grant the
lease scheduled to the Comalco Agreement, was required to accord procedural
fairness
and to avoid any breach of fiduciary duty to persons in the position
of the Wik.

It is a serious step to terminate a party's claim in advance of a trial on the
merits. As I have already said, where the law is
uncertain, or in a state of
development, it is usually preferable to allow the claim to go to trial [748] . On the other hand, if a claim is
clearly hopeless in law, it is an unjust vexation of the defendant to oblige it
to defend the
claim. Long ago in the Mersey Docks and Harbour Board
Trustees v Gibbs [749] it was
said:

"If the legislature directs or authorises the doing of a particular thing, the
doing of it cannot be wrongful;"

As the Comalco Agreement, with the force of an Act of Parliament, obliged
Queensland to grant to Comalco the lease ML 7024, the
action of Queensland in
granting that lease pursuant to the express statutory authority cannot, in my
view, give rise to actions
of the kind which the Wik wish to bring. This
conclusion is what the correct construction of the Comalco Act requires.
Cases involving other Acts and other factual circumstances [750] are not in point. The question here is the purpose and
operation of a special public statute of the Queensland Parliament adopting
the
particular device of a statutory agreement, an essential purpose of which was
to grant just such a lease as ML 7024. Within
the scheme established by the
Comalco Act , obligations of the kind which the Wik now wish to litigate were
excluded. This conclusion
relieves me of the need to consider the
additional
defensive arguments advanced by Queensland and Comalco.

Pechiney and the "Access Agreement"

Question 5 concerns similar questions which arise in respect of a number of
paragraphs of the Wik's amended statement of claim.
By those paragraphs the
Wik seek to maintain against Queensland and Aluminium Pechiney Holdings Pty
Limited ("Pechiney"), actions
similar to those identified in the case of
Comalco. In this case, the statute in question is the Aurukun Associates
Agreement Act 1975 (Q) ("the Aurukun Act"). It gave like authorisation for
the making of the Aurukun Associates Agreement ("the Franchise Agreement") [751] . In a like way, that agreement gave rise
to the proclamation of the making of the Franchise Agreement pursuant to the
Aurukun Act
with the grant of Special Bauxite Mining Lease, number 9.

The Aurukun Act was given the Royal Assent on 12 December 1975. As in the
case of the Comalco Act , its validity was not in contest in this Court.
By Proclamation dated 27 December 1975, the Governor of Queensland in Council
notified
that the date of the execution of the Franchise Agreement was 22
December 1975. That was the agreement, the making of which was
authorised by s
2 of the Aurukun Act . The Third Schedule to the Franchise Agreement was
the "Access Agreement". This was an agreement between the Director of
Aboriginal
and Islanders Advancement of Queensland ("the Director") and,
amongst other parties, Pechiney. The Aurukun Act was in all material
terms similar to the Comalco Act . Accordingly, for the reasons already
given, the Franchise Agreement is to be treated as if it were an enactment of
the Queensland
Parliament. No objection may be taken to the validity of the
Franchise Agreement. Such validity may not be impugned on the grounds
of
breach of fiduciary duty or breach of the rules of procedural fairness because
to do so would be to contradict the clear purpose
of the Queensland Parliament
in adopting the exceptional course of authorising the making of the Franchise
Agreement and, once made,
affording it the force of statute.

It is clear both from the Aurukun Act itself and from the Parliamentary
Debates on the Bill which became the Act, that it was "the culmination of
detailed negotiations
between the Queensland Government and the Aurukun
Associates" [752] . The "Access Agreement"
was part of the background to those negotiations. It was, in fact, the very
agreement which was considered
in the Peinkinna Case [753] . It bears the date 4 December 1975. It thus preceded
both the Aurukun Act and the Franchise Agreement which that Act authorised.
It
is not expressly referred to in the body of the Aurukun Act. However, as
contemplated in the form of the Franchise Agreement
as set out in the Act, it
was scheduled to that agreement when it was made.

The submission of the Wik in relation to the Access Agreement was similar to
the submission made with respect to the lease granted
to Comalco: it did not
itself have the force of statute. Its execution was an administrative act
liable to be tested by reference
to the obligations of procedural fairness and
fiduciary duty.

For reasons similar to those given in dealing with the Comalco lease, I am of
the opinion that the scheme of the Aurukun Act excludes prosecution of
the Wik's claims against Queensland and Pechiney in respect of the Access
Agreement. The Franchise Agreement
has statutory force. One of its
provisions [754] imposes on the Aurukun
companies an obligation to "carry out their responsibilities and obligations as
defined in the [Access Agreement]".
The obligations under the Access Agreement
are therefore as effective as if they were expressly stated in, and part of,
the Aurukun
Act . The clear intention of the Queensland Parliament was
that the Access Agreement should take effect as part of the scheme which was
to
include the Franchise Agreement made with the force of statute. This
interpretation, which I would reach independently, is confirmed
by the
explanations given to the Queensland Parliament in support of the complex
arrangements between the parties and for which the
approval of Parliament was
sought [755] . Placed as it was as an
integral part of the arrangements carried into law in the Franchise Agreement,
it must be taken that, for
the successful operation of the Franchise Agreement
sanctioned by Parliament, the latter supplied any deficiency in the authority
or power of the Director to enter into the Access Agreement. It would be
destructive of the obvious purposes of the Aurukun Act now to open to
complaint the claims advanced by the Wik in objection to the Access
Agreement.

I therefore consider that Drummond J was right to answer question 5, like
question 4, in the negative.
ORDERS

For the foregoing reasons I agree in the answers to the questions proposed, and
in the orders stated, in the reasons of Toohey J.

[1] Now repealed: see the Land Act 1994
(Q).
[2] Tried pursuant to O 29 r 2(a) of the
Federal Court Rules.
[3] Wik Peoples v Queensland (1996) 134
ALR 637 at 706-707.
[4] The Parliament of Queensland was empowered
to make laws for regulating the letting of Crown land in Queensland by s 30 of
the Constitution Act 1867: see also s 40 of that Act.
[5] pursuant to s 14(4).
[6] s 40(2).
[7] s 41(4).
[8] ss 42 and 43.
[9] s 43(i).
[10] [1992] HCA 23 ; (1992) 175 CLR 1 at 66.
[11] Section 91 of The Crown Lands
Alienation Act 1876 (Q). Section 203 of the 1910 Act was drawn in similar
terms.
[12] [1992] HCA 23 ; (1992) 175 CLR 1 at 69.
[13] Note the summary procedure for removal
of persons in wrongful occupation prescribed by s 204 discussed below.
[14] This was the course taken in McGavin
v McMaster (1869) 2 QSCR 23 when the Pastoral Leases Act 1863 (Q)
provided the summary remedy on an application by or on behalf of the Crown but
contained no provision authorising an application
by or on behalf of lessees or
the other categories of persons mentioned in the last paragraph of s 204.
[15] Section 71 of the Pastoral Leases
Act 1869.
[16] ss 6(3), 14(3) and (4), 139, 199(1) and
(2), 200, 205.
[17] See Radaich v Smith [1959] HCA 45 ; (1959) 101
CLR 209 at 222 per Windeyer J.
[18] [1973] HCA 7 ; (1973) 128 CLR 199.
[19] [1973] HCA 7 ; (1973) 128 CLR 199 at 213.
[20] [1904] AC 405 at 408.
[21] See Yandama Pastoral Co v Mundi Mundi
Pastoral Co Ltd [1925] HCA 38 ; (1925) 36 CLR 340 where the issue was whether a provision
of the Pastoral Act 1904 (SA) conferred a right to travel stock across a
pastoral lease or whether it merely conditioned the exercise of an existing
right so to do. Both the majority and minority accepted that, in the absence
of some right arising aliunde, the travelling of stock
would have infringed the
pastoral lessee's possession: see at 365, 376.
[22] The definition of "private land" in s 3
of The Petroleum Act means all land other than Crown land.
Crown land does not include land "subject to any lease or licence lawfully
granted by the Crown".
[23] The problems of mining leases over
privately owned land need not be explored here. See, for example, Croudace
v Zobel [1899] AC 258; Ebbels v Rewell [1908] VicLawRp 39 ; [1908] VLR 261 at 264;
Frazers Creek Mining v Schieb [1971] 1 NSWLR 953 at 959; Wade v New
South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121 CLR 177.
[24] [1904] AC 405 at 408.
[25] [1903] AC 365 at 377; followed in
O'Keefe v Williams [1910] HCA 40 ; (1910) 11 CLR 171 at 208.
[26] Street v Mountford [1985] UKHL 4 ; [1985] AC 809
at 816, 818. As to the difference between an exception and a reservation in
conveyancing law, see Wade v New South Wales Rutile Mining Co Pty Ltd
[1969] HCA 28 ; (1969) 121 CLR 177 at 194 and Hill and Redmond's Law of Landlord and
Tenant , 18th ed, par A686.
[27] [1959] HCA 45 ; (1959) 101 CLR 209 at 222.
[28] Attorney-General for NSW v Brewery
Employes Union of NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 531; Barker v The Queen
[1983] HCA 18 ; (1983) 153 CLR 338 at 341, 355-356; R v Slator (1881) 8 QBD 267 at 272,
274.
[29] s 6(1).
[30] s 6(2).
[31] s 40(2).
[32] s 41(4).
[33] s 40(2).
[34] s 43.
[35] s 122: and see Chelsea Investments
Pty Ltd v Federal Commissioner of Taxation [1966] HCA 15 ; (1966) 115 CLR 1 at 6. ii Co
Litt, 19th ed (1832) at 337b, refers to "surrender" as "a yielding up [of] an
estate for life or years
to him that hath
an immediate estate in reversion or
remainder, wherein the estate for life or years may drown by mutual agreement
between them".
[36] Section 130(2) of the 1910 Act; ss
14(1), 249, 295 of the 1962 Act. Section 14(1) of the 1962 Act, unlike s
130(2) of the 1910
Act, distinguished between a lease which is "forfeited" and
a licence which is "determined".
[37] s 135; see Minister for Lands v
Priestley [1911] HCA 68 ; (1911) 13 CLR 537.
[38] [1981] HCA 65 ; (1981) 147 CLR 677 at 686 and per Mason
J at 682-683; see also ICI Alkali v Federal Commissioner of Taxation
[1916] HCA 67 ; (1978) 22 ALR 465 at 470 where the High Court accepted that a Crown lease under
the Mining Act 1930 (SA) was in truth a lease, not a licence.
[39] (1875) LR 6 PC 354 at 370.
[40] de Britt v Carr [1911] HCA 32 ; (1911) 13 CLR 114
at 122 per Griffith CJ.
[41] [1975] AC 520 at 533.
[42] [1910] HCA 40 ; (1910) 11 CLR 171 at 207.
[43] In O'Keefe v Williams [1907] HCA 64 ; (1907) 5
CLR 217 at 230.
[44] O'Keefe v Williams [1910] HCA 40 ; (1910) 11 CLR
171 at 191, 193, 200, 209 and see American Dairy Queen (Q'ld) Pty Ltd v Blue
Rio Pty Ltd [1981] HCA 65 ; (1981) 147 CLR 677 at 683.
[45] [1973] HCA 7 ; (1973) 128 CLR 199 at 213.
[46] [1923] HCA 64 ; (1923) 34 CLR 174 at 187-188.
[47] [1947] VicLawRp 50 ; [1947] VLR 347.
[48] [1923] HCA 64 ; (1923) 34 CLR 174 at 190.
[49] (1875) LR 6 PC 354 at 372.
[50] [1907] HCA 64 ; (1907) 5 CLR 217 at 229.
[51] (1991) 22 NSWLR 687.
[52] (1991) 22 NSWLR 687 at 712.
[53] (1991) 22 NSWLR 678 at 696.
[54] O'Keefe v Williams [1907] HCA 64 ; (1907) 5 CLR
217 at 229; [1910] HCA 40 ; (1910) 11 CLR 171 at 207.
[55] s 6(2).
[56] [1985] UKHL 4 ; [1985] AC 809 at 816.
[57] Letter from the Colonial Land and
Emigration Office to Herman Merivale dated 17 April 1849.
[58] Wildash v Brosnan (1870) QCLLR 17
at 18 and see Macdonald v Tully (1870) 2 QSCR 99 at 106 where a pastoral
lessee's right to occupy while awaiting the issue of a formal lease was
"capable of being
maintained against any disturber".
[59] R v Tomkins (1919) St R Qd 173 at
190, 194-195, 198; see also Attorney-General of Victoria v Ettershank
(1875) LR 6 PC 354 at 368, 370; O'Keefe v Williams [1910] HCA 40 ; (1910) 11 CLR 171 at
190-191, 196, 200, 208; Yandama Pastoral Co v Mundi Mundi Pastoral Co
Ltd [1925] HCA 38 ; (1925) 36 CLR 340; Minister for Lands and Forests v McPherson
(1991) 22 NSWLR 687 at 696, 710; cf R v Toohey; Ex parte Meneling Station
Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327.
[60] 18 & 19 Vict c 56.
[61] [1907] HCA 56 ; (1907) 5 CLR 326 at 336.
[62] See the use of the term "estate" by
O'Connor J in Minister for Lands v Priestley [1911] HCA 68 ; (1911) 13 CLR 537 at 550.
[63] (1863) 2 Moo (NS) 267 at 273 [1863] EngR 782 ; [15 ER 902
at 904].
[64] (1863) 2 Moo (NS) 267 at 273 [1863] EngR 782 ; [15 ER 902
at 904].
[65] (1863) 2 Moo (NS) 267 at 273 [1863] EngR 782 ; [15 ER 902
at 905].
[66] Also the submission of some
interveners.
[67] Coe v The Commonwealth [1993] HCA 42 ; (1993) 68
ALJR 110 at 118.
[68] Gillard v Cheshire Lines
Committee (1884) 32 WR 943.
[69] Parsley v Day (1842) 2 QB 147 at
155-156 [1842] EngR 820 ; [114 ER 58 at 62].
[70] Ryan v Clark (1849) 14 QB 65 at
73 [1849] EngR 5 ; [117 ER 26 at 29].
[71] Copeland v Stephens (1818) 1 B
& Ald 593 at 606-607 [106 ER 218 at 223]; Williams v Bosanquet
[1819] EngR 467 ; (1819) 1 Brod & B 238 [129 ER 714]; ii Co Litt, 19th ed (1832) at 270a.
[72] One effect of s 6(2) would have been the
elimination of any requirement that, to be effective, the Crown grant be a
matter of record:
see Enid Campbell, "Crown Land Grants: Form and Validity",
(1966) 40 Australian Law Journal 35 at 38.
[73] 1910 Act, ss 40 and 41.
[74] [1992] HCA 23 ; (1992) 175 CLR 1 at 58. See also at 110
per Deane and Gaudron JJ; at 195 per Toohey J.
[75] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at
59, 69; Western Australia v The Commonwealth. Native Title Act Case
[1995] HCA 47 ; (1995) 183 CLR 373 at 422.
[76] [1992] HCA 23 ; (1992) 175 CLR 1 at 63-64 per Brennan J;
at 110-111 per Deane and Gaudron JJ; at 195-196 per Toohey J.
[77] [1992] HCA 23 ; (1992) 175 CLR 1 at 64 per Brennan J; at
111 per Deane and Gaudron JJ; at 196 per Toohey J.
[78] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at
68; Western Australia v The Commonwealth. Native Title Act Case [1995] HCA 47 ; (1995)
183 CLR 373 at 422.
[79] [1992] HCA 23 ; (1992) 175 CLR 1 at 68; see also 94,
197.
[80] Mabo v Queensland ( Mabo [No
1]) (1988) 166 CLR 186 at 218-219, 231-232 and see Western Australia v
The Commonwealth. Native Title Act Case [1995] HCA 47 ; (1995) 183 CLR 373 at 438-439.
[81] See Williams v Attorney-General for
New South Wales (the Government House Case) [1913] HCA 33 ; (1913) 16 CLR 404 (HC); [1915] UKPCHCA 1 ; (1915)
19 CLR 343 (PC) and Randwick Corporation v Rutledge [1959] HCA 63 ; (1959) 102 CLR 54.
Mabo [No 2] rejected the dicta in these cases which treated the Crown as
the beneficial owner of all land in the Colony of New South Wales upon
settlement of the Colony, but their authority in other respects was left
unimpaired.
[82] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at
68 per Brennan J; at 110 per Deane and Gaudron JJ.
[83] (1979) 107 DLR (3d) 513 at 549.
[84] Corporation of Yarmouth v Simmons
(1878) 10 Ch D 518 at 527 cited by McTiernan J in Aisbett v City of
Camberwell [1933] HCA 36 ; (1933) 50 CLR 154 at 178-179.
[85] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at
68.
[86] Re Waanyi People's Application
(1995) 129 ALR 118 at 166.
[87] [1992] HCA 23 ; (1992) 175 CLR 1 at 68; see also at
72-73.
[88] Or, perhaps, on expiry of the term to
which the lessee becomes entitled by exercise of a right of renewal.
[89] The Thayorre submission contends, in the
alternative, for a recognition anew of the native title that was extinguished
by the lease.
[90] See A W B Simpson, A History of the
Land Law , 2nd ed (1986) at 47.
[91] [1992] HCA 23 ; (1992) 175 CLR 1 at 81.
[92] See, for example, Delohery v
Permanent Trustee Co of NSW [1904] HCA 10 ; (1904) 1 CLR 283 at 299-300; Williams v
Attorney-General (NSW) [1913] HCA 33 ; (1913) 16 CLR 404.
[93] Megarry and Wade, The Law of Real
Property , 5th ed (1984) at 14.
[94] As Pollock and Maitland, The History
of English Law , 2nd ed (1898: reprint 1952), vol 2 at 10 observe:
"Proprietary rights in land are, as we may say, projected upon the plane of
time.
The category of quantity, of duration, is applied to them."
[]
95 [ ] Williams and Eastwood on Real
Property [, 24th ed (1933) at 34-35; Pollock
and Maitland, ] The History of English Law [, 2nd ed (1898: reprint 1952), vol 1 at 351ff.
96] See the note on "Land Without An Owner", (1954) 70 Law Quarterly
Review 25.
[97] (1880) 14 Ch D 287 at 295 and see per
Jenkins J in In re Strathblaine Estates, Ld [1948] Ch 228 at 231.
[98] The distinction is explained by Pollock
and Maitland, The History of English Law , 2nd ed (1898: reprint 1952),
vol 2 at 22-23.
[99] That is, the leasehold estate is held
of the Crown. It is a "tenure" in the strict common law sense of the term, not
merely in
the sense in which "tenure" is used, often loosely, in Crown lands
legislation.
[100] Cudgen Rutile (No 2) Ltd v
Chalk [1975] AC 520 at 533.
[101] In this context, where ownership of
minerals is reserved from a grant, the reservation is truly an exception, that
is, the minerals
do not form part of the parcel of land that is the subject of
the grant of the leasehold estate.
[102] Lyttleton's Tenures (1841),
pars 328-330 at 374-376.
[103] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 48-49.
[104] [1995] HCA 47 ; (1995) 183 CLR 373 at 452.
[105] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[106] See the cases cited in Mabo [No
2] [1992] HCA 23 ; (1992) 175 CLR 1 at 26-28.
[107] s 127(3).
[108] s 122.
[109] s 132.
[110] s 135.
[111] s 124.
[112] s 177.
[113] Section 5 of The Escheat
(Procedure and Amendment) Act 1891 ("the Escheat Act ").
[114] Section 4 of the Escheat
Act .
[115] s 72.
[116] ss 48 and 50.
[117] ss 100, 106, 108, 110, 114.
[118] s 104.
[119] Metropolitan Borough and Town
Clerk of Lewisham v Roberts [1949] 2 KB 608 at 622.
[120] Woodfall's Landlord and
Tenant , (1993) vol 1 par 1.005.
[121] Javad v Mohammed Aqil [1990] EWCA Civ 1 ; [1991] 1
WLR 1007 at 1012; [1990] EWCA Civ 1 ; [1991] 1 All ER 243 at 247.
[122] Hall v Ewin (1887) 37 Ch D
74.
[123] Pollock and Maitland, The History
of English Law , 2nd ed (1898: reprint 1952), vol 1 at 351; Williams and
Eastwood on Real Property , 24th ed (1933) at 34-35.
[124] s 72.
[125] s 124.
[126] See the 1962 Act, Pt VI Divs I and
II, especially s 166.
[127] Breen v Williams (1996) 70
ALJR 772 at 776; 138 ALR 259 at 265.
[128] Henderson v Merrett Syndicates
Ltd [1994] UKHL 5 ; [1995] 2 AC 145 at 205.
[129] Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR
178; United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR
1.
[130] Hospital Products Ltd v United
States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41.
[131] See United States v Mitchell
[1983] USSC 154 ; (1983) 463 US 206 at 224.
[132] (1984) 13 DLR (4th) 321 ; see also
Blueberry River Indian Band v Canada (1995) 130 DLR (4th) 193 at 203,
209.
[133] (1984) 13 DLR (4th) 321 at 334,
340.
[134] (1984) 13 DLR (4th) 321 at 347.
[135] (1984) 13 DLR (4th) 321 at 356,
357.
[136] 25 USC SS177.
[137] Joint Tribal Council of
Passamaquoddy Tribe v Morton [1975] USCA1 273 ; (1975) 528 F 2d 370 at 379.
[138] United States v University of New
Mexico [1984] USCA10 123 ; (1984) 731 F 2d 703 at 706 citing Passamaquoddy Tribe v
Morton [1975] USCA1 273 ; (1975) 528 F 2d 370 at 379 .
[139] [1985] HCA 78 ; (1985) 160 CLR 583 at 614.
[140] [1985] HCA 78 ; (1985) 160 CLR 583 at 615.
[141] cl 8 par (a).
[142] By the Third Schedule to the
Agreement.
[143] [1976] Qd R 231 at 260.
[144] The Corporation of the Director of
Aboriginal and Islanders Advancement v Peinkinna (1978) 52 ALJR 286; 17 ALR
129.
[145] cl 2 of Pt III.
[146] cl 3 of Pt III.
[147] cl 5 of Pt III.
[148] (1978) 52 ALJR 286; 17 ALR 129.
[149] Western Australia v The
Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373.
[150] (1988) 166 CLR 186.
[151] [1992] HCA 23 ; (1992) 175 CLR 1.
152 [1992] HCA 23 ; (1992) 175 CLR 1.
[153] Wik Peoples v Queensland
(1996) 134 ALR 637 at 641; 63 FCR 450 at 454.
[154] The expressions "native title" and
"native title rights" are now part of the vocabulary of the law. However, I
still confess a
preference for "traditional title". See Mabo [No 2]
[1992] HCA 23 ; (1992) 175 CLR 1 at 188.
[155] Wik Peoples v Queensland
(1996) 134 ALR 637; 63 FCR 450.
[156] The relevant questions and the
answers given by Drummond J are set out in full in the judgment of Brennan
CJ.
[157] Those entities are respectively the
first, fourth and fifth respondents to the appeals.
158 (1995) 132 ALR 565; 61 FCR 1.
[159] (1996) 134 ALR 637 at 666; 63 FCR 450
at 480.
[160] (1996) 134 ALR 637 at 666; 63 FCR 450
at 480.
[161] (1996) 134 ALR 637 at 666; 63 FCR 450
at 481.
[162] Section 4(1) of the Land Act
of 1962 repealed the 1910 Act. Section 4(2) provided that leases granted under
the earlier legislation "shall be deemed to have
been granted" under the new
Act.
[163] A reference to The Land
Acts .
[164] (1996) 134 ALR 637 at 664-665; 63 FCR
450 at 479.
[165] A reference to Question 1B.
[166] (1996) 134 ALR 637 at 668-669; 63 FCR
450 at 483.
[167] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 66-67.
[168] (1996) 134 ALR 637 at 674; 63 FCR 450
at 489.
[169] (1996) 134 ALR 637 at 674; 63 FCR 450
at 489.
[170] In this discussion I am indebted to
Dr Fry's writings. His major work in this respect is Freehold and Leasehold
Tenancies of Queensland Land . There is a more summary account in "Land
Tenures in Australian Law" in Res Judicatae , (1946-1947) 3 at 158. I am
also indebted to the monograph by Professor Reynolds and Mr Dalziel,
Aborigines, Pastoral Leases and Promises By The Crown - Imperial and
Colonial Policy 1826-1855 , now published as "Aborigines and Pastoral Leases
- Imperial and Colonial Policy 1826-1855", (1996) 19(2) UNSW Law Journal
315.
[171] See Campbell, "Crown Land Grants:
Form and Validity", (1966) 40 Australian Law Journal 35.
[172] [1959] HCA 63 ; (1959) 102 CLR 54 at 71.
[173] (1847) 1 Legge Rep 312.
[174] s 25.
[175] 5 & 6 Vict c 36.
[176] Fry, "Land Tenures in Australian
Law", (1946-1947) 3 Res Judicatae , 158 at 160.
[177] 9 & 10 Vict c 104.
[178] Fry, "Land Tenures in Australian
Law", (1946-1947) 3 Res Judicatae , 158 at 160-161.
[179] Published in the New South Wales
Government Gazette, 15 February 1842 at 267.
[180] Stewart v Williams [1914] HCA 43 ; (1914) 18
CLR 381 at 390.
[181] Millard and Millard, The Law of
Real Property in New South Wales , (1905), quoted in Edgeworth, "Tenure,
Allodialism and Indigenous Rights at Common Law: English, United States and
Australian Land
Law Compared after Mabo v Queensland ", (1994) 23
Anglo-American Law Review 397 at 397.
[182] (1946-1947) 3 Res Judicatae ,
158 at 159.
[183] (1946-1947) 3 Res Judicatae ,
158 at 158.
[184] [1982] HCA 69 ; (1982) 158 CLR 327 at 344.
[185] s 4. The definition of "Crown land"
in s 5 of the 1962 Act is the same.
[186] In the interests of consistency I
have used the spelling "license" for the noun in contexts where the Queensland
statute uses that
spelling.
[187] s 42.
[188] s 47.
[189] That is, the first Holroyd lease and
both Mitchellton leases.
[190] s 62(1).
[191] s 53(1).
[192] s 299(2).
[193] [1959] HCA 45 ; (1959) 101 CLR 209.
[194] See Lewis v Bell [1985] 1
NSWLR 731.
[195] [1959] HCA 45 ; (1959) 101 CLR 209 at 222.
[196] [1985] UKHL 4 ; [1985] AC 809 at 827.
[197] [1903] AC 365 at 377.
198 [1969] HCA 28 ; (1969) 121 CLR 177 at 192.
[199] See also Gowan v Christie
(1873) LR 2 Sc & Div 273 at 284; In re Adam's Settled Estate [1902]
2 Ch 46 at 56.
200 [1973] HCA 7 ; (1973) 128 CLR 199.
[201] [1904] AC 405 at 408.
[202] [1981] HCA 65 ; (1981) 147 CLR 677 at 686.
[203] [1981] HCA 65 ; (1981) 147 CLR 677 at 682-683.
[204] Despatch No 65, Sir George Gipps to
Lord Glenelg, 6 April 1839, CO 201/285.
[205] Despatch No 24 Earl Grey to the
Governor Sir Charles FitzRoy, 11 February 1848; Despatch No 134 Earl Grey to
Sir Charles FitzRoy,
6 August 1849.
[206] Annual Report of the Northern
Protector of Aboriginals for 1900, Queensland, Votes and Proceedings, 1901, vol
4, 1329-1337.
[207] Annual Report of the Northern
Protector of Aboriginals for 1903, Queensland Parliamentary Papers, 1904,
847-873.
[208] Western Australia v The
Commonwealth ( Native Title Act Case ) [1995] HCA 47 ; (1995) 183 CLR 373 at
421-423.
[209] [1870] 2 QSCR 99 at 106.
[210] [1870] 1 QCLLR 17 at 18.
[211] [1992] HCA 23 ; (1992) 175 CLR 1 at 66.
[212] [1925] HCA 38 ; (1925) 36 CLR 340.
[213] [1925] HCA 38 ; (1925) 36 CLR 340 at 349-350.
[214] [1925] HCA 38 ; (1925) 36 CLR 340 at 353.
[215] [1992] HCA 23 ; (1992) 175 CLR 1 at 63.
216 [1975] USCA1 273 ; (1975) 528 F 2d 370 at 376, n 6.
[217] Johnson v McIntosh (1823) 21
US 240 at 259; United States v Santa Fe Pacific Railroad Co [1942] USSC 12 ; (1941) 314
US 339; St Catherine's Milling & Lumber Co v The Queen [1888] 14 AC
46; Tee-Hit-Ton Indians v United States [1955] USSC 24 ; (1955) 348 US 272 at 279;
Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d)
513 at 549; [1980] 1 FC 518 at 566-567. In Mabo v Queensland (1988) 166
CLR 186 at 195, 201, 213-214, the power to extinguish by legislation consisting
of "clear and plain" language was assumed.
[218] [1992] HCA 23 ; (1992) 175 CLR 1 at 110-111.
[219] [1992] HCA 23 ; (1992) 175 CLR 1 at 193.
[220] [1992] HCA 23 ; (1992) 175 CLR 1 at 195.
[221] [1992] HCA 23 ; (1992) 175 CLR 1 at 64.
[222] [1992] HCA 23 ; (1992) 175 CLR 1 at 110-111 per Deane
and Gaudron JJ, 136 per Dawson J, 193-196 per Toohey J. See also Western
Australia v The Commonwealth ( Native Title Act Case ) [1995] HCA 47 ; (1995) 183 CLR
373 at 422: "the presumption in the case of the Crown is that no
extinguishment is intended". See
also R v Van der Peet (1996) 137 DLR
(4th) 289 at 337, 385.
[223] [1995] HCA 47 ; (1995) 183 CLR 373 at 422.
[224] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[225] [1992] HCA 23 ; (1992) 175 CLR 1 at 110.
[226] See [1992] HCA 23 ; (1992) 175 CLR 1 at 197.
[227] (1993) 104 DLR (4th) 470 at 525.
[228] (1993) 104 DLR (4th) 470 at 529.
[229] (1993) 104 DLR (4th) 470 at 668.
[230] [1992] HCA 23 ; (1992) 175 CLR 1.
[231] [1995] HCA 47 ; (1995) 183 CLR 373.
[232] R v Van der Peet (1996) 137
DLR (4th) 289 at 318 per Lamer CJC.
[233] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 89.
[234] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 190.
[235] See generally, Rogers, "The Emerging
Concept of 'Radical Title' in Australia: Implications for Environmental
Management", (1995)
12 Environmental and Planning Law Journal 183.
[236] [1992] HCA 23 ; (1992) 175 CLR 1 at 48.
[237] [1921] 2 AC 399 at 403.
[238] [1992] HCA 23 ; (1992) 175 CLR 1 at 51.
[239] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[240] Helmore, The Law of Real
Property , 2nd ed (1966) at 227.
[241] Commentaries , Book II, Ch 11
at 175.
[242] [1992] HCA 23 ; (1992) 175 CLR 1 at 50.
[243] These appeals are not concerned with
the operation of the Racial Discrimination Act 1975 (Cth).
[244] See s 135 of the 1910 Act.
[245] [1992] HCA 23 ; (1992) 175 CLR 1 at 16.
[246] 2 Co Litt 270a.
[247] Property Law Act 1974 (Q), s
102.
[248] See 70 Australian Law Journal
524.
[249] (1995) 132 ALR 565 at 586; 61 FCR 1
at 23.
[250] Wik Peoples v Queensland
(1996) 134 ALR 637; 63 FCR 450.
[251] The 2nd-4th, 9th-12th and 14th-18th
respondents in both appeals. The 5th respondent made submissions only with
respect to question
5. The 6th respondent did not appear before this Court.
The 7th and 8th respondents did not make any submissions contrary to those
of
the appellants and the 13th respondent supported the Wik Peoples'
submissions.
[252] 1 Geo V No 15.
[253] The Attorneys-General for Victoria,
South Australia, Western Australia and the Northern Territory.
[254] While the Napranum Aboriginal Council
(7th respondent) and Pormpuraaw Aboriginal Council (8th respondent) made no
submissions contrary
to those of the appellants, ATSIC (13th respondent)
supported the submissions of the Wik Peoples. The Kimberley Land Council,
Nanga-Ngoona
Moora-Joonga Association Aboriginal Corporation, Western Desert
Punturkurnuparna Aboriginal Corporation, Ngaanyatjarra Land Council,
Northern
Land Council, Central Land Council and Ben Ward and others on behalf of the
Miriuwung and Gajerrong Peoples intervened in
the same interest as the
appellants.
[255] [1992] HCA 23 ; (1992) 175 CLR 1 at 110; see also at
68 per Brennan J and at 195-196 per Toohey J.
[256] By Proclamation dated 27.12.1865
published in the Queensland Government Gazette on 6.1.1866.
[257] Note that both the 1910 Act and the
1962 Act refer to licen s es and accordingly that word will be so
used in this judgment.
[258] Published in the Queensland
Government Gazette on 30.1.1915.
[259] The grant was made on 25 May 1915.
[260] Declaration of forfeiture published
in the Queensland Government Gazette on 20.7.1918.
[261] (1996) 134 ALR 637 at 673; 63 FCR 450
at 488.
[262] Published in the Queensland
Government Gazette on 24.8.1918.
[263] (1996) 134 ALR 637 at 673; 63 FCR 450
at 488.
[264] Published in the Queensland
Government Gazette on 14.1.1921.
[265] By Order-in-Council published in the
Queensland Government Gazette on 10.5.1930.
[266] See (1996) 134 ALR 637 at 672-673; 63
FCR 450 at 487.
[267] (1996) 134 ALR 637 at 675; 63 FCR 450
at 490.
[268] (1996) 134 ALR 637 at 643; 63 FCR 450
at 455.
[269] Cooper v Stuart (1889) 14 AC
286 at 293.
[270] Blackstone, Commentaries , 1
Comm 107, approved by the Privy Council in Cooper v Stuart (1889) 14 AC
286 at 291.
[271] Cooper v Stuart (1889) 14 AC
286 at 292.
[272] (1889) 14 AC 286.
[273] (1889) 14 AC 286 at 292.
[274] (1996) 134 ALR 637 at 645; 63 FCR 450
at 458.
[275] Cited by Drummond J in Wik Peoples
v Queensland (1996) 134 ALR 637 at 645; 63 FCR 450 at 458 and by Barton ACJ
in Williams v Attorney-General for New South Wales [1913] HCA 33 ; (1913) 16 CLR 404 at
416-417.
[276] 5 & 6 Vict, c 36.
[277] 9 & 10 Vict, c 104.
[278] Section VI of the Sale of Waste
Lands Act Amendment Act 1846 (Imp).
[279] Fry, Freehold and Leasehold
Tenancies of Queensland Land , (1946) at 20.
[280] Published in the Supplement to
the New South Wales Government Gazette on 7.10.1847.
[281] Settled Districts comprised land in
certain established counties, lands within a specified radius of particular
towns, lands within
3 miles of the sea, and lands within 2 miles of the banks
of certain rivers in the Colony - Ch I, s 2 of the rules and regulations.
[282] Intermediate Districts comprised land
within certain specified counties and any other county whose boundaries were
fixed and proclaimed
on or before 31.12.1848 other than land within those
counties designated as Settled Districts - Ch I, s 3 of the rules and
regulations.
[283] Unsettled Districts comprised all
land in the colony of New South Wales which was not otherwise designated as a
"Settled District"
or "Intermediate District" - Ch I, s 4 of the rules and
regulations.
[284] See Ch IV, s 1, Ch III, s 1 and Ch
II, s 1 of the rules and regulations.
[285] See especially Despatch No 24, Earl
Grey to Sir Charles FitzRoy, 11 February 1848, Historical Records of
Australia , Series I, Vol 26 at 223 (CO 201/382). See also Despatch No 107,
Sir Charles FitzRoy to Earl Grey, 17 May 1847, enclosing Report,
GA Robinson
(Chief Protector of Aborigines at Port Phillip-Loddon District) to the Colonial
Office and other documents (CO 201/382);
Despatch No 221, Sir Charles FitzRoy
to Earl Grey, 11 October 1848, (CO 201/400).
[286] By Proclamation published in the
New South Wales Government Gazette on 26.4.1850.
[287] Despatch No 134, Earl Grey to Sir
Charles A FitzRoy, 6 August 1849, Despatches to the Governor, Mitchell Library,
MSA 1308.
[288] Minute from the Secretary of State
for War and Colonies, 26 March 1849, Despatch No 221, Sir Charles FitzRoy to
Earl Grey (CO 201/400).
[289] 18 & 19 Vict, c 54.
[290] Earlier provisions to the same effect
are to be found in s 51 of the New South Wales and Van Diemen's Land Act
1842 (Imp) (5 & 6 Vict, c 76) and s 34 of the Australian Colonies
Act 1850 (Imp) (13 & 14 Vict, c 59).
[291] Published in the Queensland
Government Gazette , 10.12.1859.
[292] See, for example, Unoccupied Crown
Lands Occupation Act 1860 (Q) (24 Vict No 11); Tenders for Crown Lands
Act 1860 (Q) (24 Vict No 12); Alienation of Crown Lands Act 1860 (Q)
(24 Vict No 15); Occupied Crown Lands Leasing Act 1860 (Q) (24 Vict No
16); Pastoral Occupation Act 1862 (Q) (26 Vict No 8). Except for
the Alienation of Crown Lands Act 1860, all of these Acts were repealed
by the Pastoral Leases Act 1863 (Q) (27 Vict No 17).
[293] 31 Vict No 38.
[294] By cl 5 of the Letters Patent of
1859, the Governor of Queensland was vested with full power to dispose of waste
lands subject to
any other law in force in Queensland regulating such disposal.
Clause 20 of an Order-in-Council dated 6 June 1859 (published in the
Queensland Government Gazette on 24.12.1859) provided that the laws of
New South Wales operated until repealed or varied by the Queensland
legislature. Clause
17 of that Order-in-Council provided that it was lawful
for the Queensland legislature to make laws regulating the disposal of waste
lands subject to the provisions in the New South Wales Constitution Act
1855 (Imp) and the Australian Waste Lands Act 1855 (Imp) "which
concern the maintenance of existing contracts", however cl 22 permitted the
legislature to repeal any provision
in the
Order-in-Council. The
Order-in-Council was repealed by s 3 of The Repealing Act 1867 (Q) (31
Vict No 39) which was enacted concurrently with the Queensland Constitution
Act 1867 (Imp). Accordingly s 40 of the Queensland Constitution Act
1867 (Imp) replaced s 2 of the New South Wales Constitution Act 1855
(Imp).
[295] 31 Vict No 46.
[296] 33 Vict No 10.
[297] See, for example, The Crown Lands
Act 1884 (Q ) (48 Vict No 28); The Crown Lands Act Amendment
Act 1889 (Q) (53 Vict No 14); The Pastoral Leases Extension Act 1890
(Q) (54 Vict No 14); The Crown Lands Act 1894 (Q ) (58 Vict No
25); The Land Act 1897 (Q) (61 Vict No 25); The Pastoral Leases
Act 1900 (Q) (64 Vict No 14); The Pastoral Holdings New Leases Act
1901 (Q) (1 Edw VII No 25) and The Land Act 1902 (Q) (2 Edw VII No
18).
[298] See Wik Peoples v Queensland
(1996) 134 ALR 637 at 653; 63 FCR 450 at 466.
[299] (1996) 134 ALR 637 at 663; 63 FCR 450
at 477.
[300] Land Act Amendment Act 1916
(Q) (7 Geo V No 19).
[301] Land Act Amendment Act 1917
(Q) (8 Geo V No 21).
[302] Land Acts Amendment Act 1918
(Q) (9 Geo V No 8).
[303] Land Act Amendment Act 1920
(Q) (10 Geo V No 30); Land Acts Amendment Act 1920 , No 2 (Q) (10
Geo V No 24).
[304] See Land Act Amendment Act
1916 (Q), s 5(d).
[305] Section 4.
[306] Section 47(1). The license was
renewable from year to year (s 47(3)), however it could be determined either by
the Minister on
3 months notice (s 47(5)), or upon selection, reservation,
lease or sale of the subject land (s 47(6)-(7)).
[307] Section 4.
[308] The Land Regulations of 1912, Form 3
(published in the Queensland Government Gazette on 28.6.1912).
[309] Sections 45-47.
[310] Sections 75-77.
[311] Section 122.
[312] Sections 129, 131.
[313] [1992] HCA 23 ; (1992) 175 CLR 1.
[314] [1992] HCA 23 ; (1992) 175 CLR 1 at 64 per Brennan J,
111 per Deane and Gaudron JJ, 195 per Toohey J. See also Mabo v Queensland
[No 1] (1988) 166 CLR 186 at 213; Western Australia v Commonwealth
( Native Title Act Case ) [1995] HCA 47 ; (1995) 183 CLR 373 at 423.
[315] [1992] HCA 23 ; (1995) 175 CLR 1 at 66.
[316] Section 40.
[317] Section 45.
[318] Section 48.
[319] Section 49(2)(a).
[320] Section 49.
[321] Section 115.
[322] Section 56.
[323] One acre equals 0.405 hectare (4,050
square metres); one square mile equals 2.59 square kilometres (2,590,000 square
metres).
[324] Section 43.
[325] Section 46.
[326] Section 75.
[327] Section 198(1).
[328] See also, for example, Victoria:
Land Act 1869 (Vic), Land Act 1884 (Vic), Land Act 1890
(Vic), Land Act 1898 (Vic), Land Act 1901 (Vic), Land Act
1915 (Vic); Western Australia: Land Regulations 1850 (WA), Additional Land
Regulations 1851 (WA), Regulations for the Sale, Letting,
Disposal and
Occupation of Waste Lands 1864 (WA), Land Act 1898 (WA); Northern
Territory: Northern Territory Act 1863 (NT), The Northern Territory
Land Act 1872 (NT), The Northern Territory Crown Lands Consolidation Act
1882 (NT), The Northern Territory Crown Lands Act 1890 (NT), The
Northern Territory Land Act 1899 (NT), Crown Lands Ordinance 1912
(NT).
[329] [1910] HCA 40 ; (1910) 11 CLR 171 at 190 per Griffith
CJ; see also at 207 per Isaacs J. See further Davies v Littlejohn
[1923] HCA 64 ; (1923) 34 CLR 174 at 187-188; R v Toohey; Ex parte Meneling Station Pty
Ltd [1982] HCA 69 ; (1982) 158 CLR 327 at 344; Minister for Lands and Forests v
McPherson (1991) 22 NSWLR 687 at 696.
[330] [1910] HCA 40 ; (1910) 11 CLR 171 at 191-192.
[331] [1910] HCA 40 ; (1910) 11 CLR 171 at 192.
[332] [1910] HCA 40 ; (1910) 11 CLR 171 at 191.
[333] [1903] AC 365.
[334] (1870) 2 QSCR 99 at 105, 106, 108.
See also Wildash v Brosnan (1870) 1 QCLLR 17 at 18 where there was
reference to a lessee's "exclusive right to the land" under a pastoral lease
granted pursuant
to The Crown Lands Alienation Act 1868 (Q).
[335] [1910] HCA 40 ; (1910) 11 CLR 171 at 191-193 per
Griffiths CJ, 212 per Isaacs J; see also at 200-201 per Barton J.
[336] [1910] HCA 40 ; (1910) 11 CLR 171 at 191 per
Griffiths CJ, 208 per Isaacs J; see also at 196 per Barton J.
[337] [1903] AC 365 at 377.
[338] Coke, Commentary upon
Littleton , "Of Tenant for yeares" L1 c7 Sect 58 [45b]: "Words to make a
lease be, demise, grant, to fearme let, betake; and whatsoever word
amounteth
to a grant may serve to make a lease".
[339] [1981] HCA 65 ; (1981) 147 CLR 677.
[340] Part XI of the 1962 Act deals with
"Grants, Reserves and Reservations for Public Purposes".
[341] [1981] HCA 65 ; (1981) 147 CLR 677 at 682-683. See
also Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121 CLR 177
at 185 per Windeyer J and the cases there cited.
[342] Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR
209. See also Claude Neon Ltd v Melbourne and Metropolitan Board of Works
(1969) 43 ALJR 69 at 71; Goldsworthy Mining Ltd v Federal
Commissioner of Taxation [1973] HCA 7 ; (1973) 128 CLR 199 at 212.
[343] Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR
209 at 214, 217, 219-220, 222. See also Chelsea Investments Pty Ltd v
Federal Commissioner of Taxation [1966] HCA 15 ; (1966) 115 CLR 1 at 7; Claude Neon Ltd
v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69 at 71;
Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7 ; (1973)
128 CLR 199 at 212.
[344] Whereas an occupation license expired
on 31 December each year and was determinable at any other time on 3 months
notice or on selection,
reservation or lease of the land (s 47), a pastoral
lease could be granted for a term of up to 30 years (s 40(2)).
[345] A lease without entry conferred an
interest in the term ( interesse termini ) but no estate: Coke,
Commentary upon Littleton , "Of Tenant for yeares" L1 c7 Sect 58 [46b];
Blackstone, Commentaries , Book II at 144; Joyner v Weeks [1891] 2
QB 31 at 47. The doctrine of interesse termini was abolished by
s 102 of the Property Law Act 1974 (Q) as from 1 December 1975.
[346] Sevenoaks, Maidstone, and
Tunbridge Railway Co v London, Chatham, and Dover Railway Co (1879) 11 ChD
625 at 635: "Now we have not by law any such thing as a lease in perpetuity.
We have a fee simple subject to a rent-charge,
and we have a lease for years,
but we have no such thing as a lease in perpetuity"; Fry "Land Tenures in
Australian Law" (1946-1947)
3 Res Judicatae 158 at 167.
[347] Section 199.
[348] Section 198.
[349] Section 200.
[350] Section 205.
[351] See note 314.
[352] Mabo v Queensland [No 2]
[1992] HCA 23 ; (1992) 175 CLR 1 at 111.
[353] [1992] HCA 23 ; (1992) 175 CLR 1 at 111. See also
the cases there cited, namely, The Commonwealth v Hazeldell Ltd [1918] HCA 75 ; (1918)
25 CLR 552 at 563; Central Control Board (Liquor Traffic) v Cannon Brewery
Co Ltd [1919] AC 744 at 752; Clissold v Perry [1904] HCA 12 ; (1904) 1 CLR 363 at
373-374 (affirmed in [1907] AC 73), a case dealing with possessory title.
[354] Coke, Commentary upon
Littleton , "Of Fee taile" L1 c2 Sect 19 [22b]; Blackstone,
Commentaries, Book II at 175.
[355] The original grant was for an area of
1,120 square miles but one square mile was resumed for the purposes of a road
in 1953.
[356] Published in the Queensland
Government Gazette on 10.6.1944.
[357] See (1996) 134 ALR 637 at 672; 63 FCR
450 at 487.
[358] Part VI , Div I is entitled "Renewal
of Leases before Expiry" and includes s 155.
[359] Land Act 1994 (Q), s 524.
Note that certain provisions of the 1962 Act are still in force, none of which
are presently relevant.
[360] Section 5 of the 1962 Act, s 4 of the
1910 Act.
[361] Form 5 of the Regulations under the
1962 Act published in the Queensland Government Gazette on
5.2.1963. Note however that the lease was granted pursuant to Pt VI, Div I of
the 1962 Act rather than Pt III, Div I as on the
prescribed form.
[362] Division III of Pt III.
[363] Division I of Pt III.
[364] Division II of Pt III.
[365] Part IV.
[366] See s 49.
[367] Section 49(1).
[368] By s 62, the lessee of a preferential
pastoral holding was required to reside on the holding during the first seven
years of the
lease or longer if a condition to that effect was imposed by the
opening notification.
[369] By s 66(1), the holder of any lease
or selection under the 1962 Act could apply to have the tenure converted to a
stud holding when
the subject land was used to breed stud merino sheep or beef
cattle.
[370] See s 67.
[371] See s 73(3).
[372] See ss 83 and 84.
[373] See, for example, s 4(2) (savings
provision); s 129 (perpetual lease Prickly-pear and perpetual lease
Prickly-pear development selections
converted into perpetual lease selections);
s 132 (development grazing homesteads and Prickly-pear development grazing
homesteads
converted into grazing homesteads).
[374] See, for example, s 124(5)
(conversion of a perpetual lease selection to an agricultural farm).
[375] See, for example, s 124(1), (3), (4)
(agricultural farms); s 130(5) (certain settlement farm leases); s 133 (grazing
selections).
[376] See note 369.
[377] See s 4(1) and the Schedule to the
1962 Act.
[378] Sections 154 and 155 of the 1962 Act,
which applied to settlement farm leases, grazing selections, brigalow leases,
pastoral holdings,
preferential pastoral holdings and pastoral development
holdings allowed for leases to be renewed if they had not more than ten years
to run. Note that while the 1910 Act did not provide for renewal as at the
time of the Mitchellton Pastoral Leases, the Land Acts Amendment Act
1952 (Q) (Pt III, ss 13-19) and the Land Acts and Other Acts Amendment
Act 1959 (Q) (Pt VIII ss 40-47) provided for renewal of pastoral leases
prior to expiry.
[379] See also s 162.
[380] Section 231(1).
[381] Section 231(2)(b).
[382] Section 333.
[383] Section 305.
[384] Section 295(a).
[385] See s 50(1)(e)-(f). See also ss 51
and 52.
[386] Note that in any case the opening
notification pursuant to which the first Holroyd lease was granted required
only that there be
payment for any improvements already on the land.
[387] Section 64(3) provided that s 111
applied to that section.
[388] Section 297(2).
[389] Section 250. In general terms, that
section operated with respect to agricultural selections and perpetual country
leases, during
their first two years, and pastoral leases, brigalow leases,
grazing selections, settlement farm leases and certain licenses for
their
entire term.
[390] See ss 55 and 57 of the Forestry
Act 1959 (Q). Note that s 44 of the Forestry Act 1959 (Q)
specifically provided that the lease of any Crown holding, which included a
holding granted under the 1962 Act, was subject
to
the provisions of Pt VI of
the Forestry Act (ss 44 - 61 ).
[391] Section 375(1) of the 1962 Act, s 205
of the 1910 Act.
[392] As explained with respect to the
Mitchellton leases, no reversion can arise at common law unless a leasehold
estate exists.
[393] Section 50(2)(c)(i) and (iii).
[394] Section 156(1)(b).
[395] The substantive provisions of the
Native Title Act commenced on 1 January 1994.
396 [1995] HCA 47 ; (1995) 183 CLR 373 at 454.
[397] Native Title Act Case [1995] HCA 47 ; (1995)
183 CLR 373 at 422-423, 452-453. See also Mabo v Queensland (1988) 166
CLR 186 at 213-214, and, in Canada, R v Sparrow [1990] 1 SCR 1075 at
1097 - 1099; R v Van der Peet (1996) 137 DLR (4th) 289 at 302-303, 337,
385.
[398] Mabo v Queensland [No 2]
[1992] HCA 23 ; (1992) 175 CLR 1 at 68; Native Title Act Case (1995) 183 CLR 373 at
422.
[399] Posner, The Problems of
Jurisprudence , (1990) at 276-277.
[400] Native Title Act Case [1995] HCA 47 ; (1995)
183 CLR 373 at 423.
[401] Holmes, "The Theory of Legal
Interpretation", (1899) 12 Harvard Law Review 417 at 419. See also
Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518, 532; Brennan v
Comcare [1994] FCA 1147 ; (1994) 50 FCR 555 at 572-575.
[402] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 66-67.
[403] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 89.
[404] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 58.
[405] Pursuant to O 29 r 2(a) of the
Federal Court Rules (Cth).
[406] Wik Peoples v State of
Queensland (1996) 63 FCR 450; 134 ALR 637.
[407] The first of these pastoral leases
was issued under the 1910 Act as amended by The Land Act Amendment Act
1913 (Q) and The Land Act Amendment Act 1914 (Q). The second was issued
under the 1910 Act as further amended by The Land Act Amendment Act 1916
(Q), The Land Act Amendment Act 1917 (Q), and The Land Acts Amendment
Act 1918 (Q). The 1910 Act will be considered in these reasons in the form
it took at the respective times for the Mitchellton Pastoral
Leases.
[408] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 66-67.
[409] An earlier lease for a term expiring
1 October 1974 had been granted in 1945 under the 1910 Act. The effect of the
1962 Act (s
4(2)) was to deem the earlier lease to have been granted as a
pastoral lease under Pt III Div 1 of the new legislation, this being
"the
tenure or class or mode of a class of tenure" which was "analogous" to that
under the 1910 Act. Part VI Div 1 of the 1962 Act
provided for "renewal" of
such leases by the issue of a new lease and surrender of the subsisting lease
(s 160).
[410] Holmes, "The Theory of Legal
Interpretation", (1899) 12 Harvard Law Review 417 at 419.
[411] Attorney-General v Prince Ernest
Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City
Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 at 312,
315.
[412] Attorney-General v Prince Ernest
Augustus of Hanover [1957] AC 436 at 461. See also the Native Title Act
Case [1995] HCA 47 ; (1995) 183 CLR 373 at 452.
[413] [1959] HCA 63 ; (1959) 102 CLR 54 at 71.
[414] (1847) 2 SCR (NSW) App 30.
[415] Wildash v Brosnan (1870) 1
QCLLR 17 at 18.
[416] From the definition of "waste lands
of the [C]rown" in s 23 of the Australian Colonies, Waste
Lands Act 1842 (Imp) (5 & 6 Vict c 36).
[417] Campbell, "Crown Land Grants: Form
and Validity", (1966) 40 Australian Law Journal 35.
[418] cf In re Natural Resources
(Saskatchewan) [1932] AC 28 at 38.
[419] Australian Colonies, Waste
Lands Act 1842 (Imp) (5 & 6 Vict c 36), s 16.
[420] Australian Colonies, Waste
Lands Act 1842 (Imp) (5 & 6 Vict c 36), s 19.
[421] 5 & 6 Vict c 76.
[422] In England, the prerogative to
alienate lands of the Crown had been restricted to the granting of certain
leases by the Crown Lands Act 1702 (Eng) (1 Anne c 1). The Crown
Lands Act 1829 inaugurated the modern system whereby the Crown Estate
Commissioners lease Crown lands in accordance with statute: Halsbury's Laws
of England , 4th ed, vol 8, pars 1451-1475.
[423] 18 & 19 Vict c 54.
[424] Blackwood v London Chartered Bank
of Australia (1874) LR 5 PC 92 at 112-113.
[425] The sources of the power of the
Queensland legislature to pass this statute were identified in Cooper v
Commissioner of Income Tax for the State of Queensland [1907] HCA 27 ; (1907) 4 CLR 1304 at
1311-1313, 1326-1329.
[426] Australian Alliance Assurance Co
Ltd v John Goodwyn, the Insurance Commissioner [1916] St R Qd 225 at
253-254; Cudgen Rutile (No 2) Ltd v Chalk [1975] AC 520 at 533; Mabo
[No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 63-64.
[427] Breskvar v Wall (1971) 126 CLR
376 at 384, where this description was applied by Barwick CJ to the Real
Property Acts 1861 to 1963 (Q).
[428] Stewart v Williams [1914] HCA 43 ; (1914) 18
CLR 381 at 390.
[429] Sevenoaks Maidstone and Tunbridge
Railway Co v London Chatham and Dover Railway Co (1879) 11 Ch D 625 at 635;
Duncan v State of Queensland [1916] HCA 67 ; (1916) 22 CLR 556 at 578.
[430] Blackwood v London Chartered Bank
of Australia (1874) LR 5 PC 92 at 110.
[431] O'Keefe v Malone [1903] AC 365
at 377.
[432] Stewart v Williams [1914] HCA 43 ; (1914) 18
CLR 381 at 406 per Isaacs J, speaking of the New South Wales legislation.
[433] Hegarty v Ellis [1908] HCA 38 ; (1908) 6 CLR
264 at 281, speaking of the legislation in Victoria.
[434] The Law of Real Property in New
South Wales , (1905) at 5-6. Comparable legislative ingenuity occurred with
mining law: Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121
CLR 177 at 186-195. In 1891, it was said that "the whole of our mining law is
founded on statutes for which no precedent
existed in any
other country":
Armstrong, "A Treatise on the Law of Gold-Mining in Australia and New Zealand",
2nd ed (1901), at
vi, from the Preface
to the 1st ed (1891).
[435] Fry, Freehold and Leasehold
Tenancies of Queensland Land , (1946) at 29.
[436] Millard on Real Property
(NSW) , 4th ed (1930) at 474.
[437] [1992] HCA 23 ; (1992) 175 CLR 1.
[438] See Wacando v The Commonwealth
[1981] HCA 60 ; (1981) 148 CLR 1 at 11.
[439] [1992] HCA 23 ; (1992) 175 CLR 1 at 17-25.
[440] [1992] HCA 23 ; (1992) 175 CLR 1 at 217.
[441] [1995] HCA 47 ; (1995) 183 CLR 373.
[442] Falkland Islands Co v The
Queen (1863) 2 Moore NS 266 at 274 [1863] EngR 782 ; [15 ER 902 at 905]; Halsbury's Laws
of England , 4th ed, vol 27(1) Reissue, par 137. A provision in a lease
expressed to reserve such rights to the landlord operated not as a true
reservation but as a regrant by the lessee to the lessor: Wickham v
Hawker (1840) 7 M & W 63 at 76 [1840] EngR 285 ; [151 ER 679 at 685]; Mason v
Clarke [1955] AC 778 at 786.
[443] But excluding what the common law
regarded as "timber": Halsbury's Laws of England , 4th ed, vol 27(1)
Reissue, pars 157-160.
[444] Halsbury's Laws of England ,
1st ed, vol 4, "Commons and Rights of Common", par 1104. See also
Halsbury's Laws of England , 4th ed, vol 6 Reissue, "Commons", par 564;
Holmes, Notes to Kent's Commentaries , reprinted in Novick, The
Collected Works of Justice Holmes , (1995), vol 2 at 410-415; Simpson, A
History of the Land Law , 2nd ed (1986) at 107-108.
[445] 8 & 9 Vict c 118. See Simpson,
A History of the Land Law , 2nd ed (1986) at 261-262; Cornish and Clark,
Law and Society in England 1750-1950 , (1989) at 137-141.
[446] Halsbury's Laws of England ,
1st ed, vol 4, "Commons and Rights of Common", par 1146.
[447] [1992] HCA 23 ; (1992) 175 CLR 1 at 48-49.
[448] Blackstone, Commentaries on the
Laws of England , 17th ed (1830), vol 2 at 104.
[449] Kavanaugh v Cohoes Power &
Light Corp (1921) 187 NYS 216 at 236-237; Gray, The Rule Against
Perpetuities , 4th ed (1942), SS23.
[450] Kent, Commentaries on American
Law (1828), vol 3 at 412. For the views of Jefferson and John Adams and
their influence upon constitutional theory in the United States
see Edgeworth,
"Tenure, Allodialism and Indigenous Rights at Common Law: English, United
States and Australian Land Law Compared
after Mabo v Queensland ", (1994)
23 Anglo-American Law Review 397 at 399-403.
[451] In re Hallett's Estate (1880)
13 Ch D 696 at 710 per Jessel MR.
[452] Ex parte Professional Engineers'
Association [1959] HCA 47 ; (1959) 107 CLR 208 at 267.
[453] cf Gordon, "Critical Legal
Histories", (1984) 36 Stanford Law Review 57 at 63-65.
[454] [1956] UKHL 6 ; [1957] AC 555 at 591-592.
[455] An example is the consideration of
the abolition of the rule in Brinsmead v Harrison (1871) LR 7 CP 547, by
s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), in
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12 ; (1985) 155
CLR 448. See also, in this respect, Thompson v Australian Capital
Television Pty Ltd , unreported, High Court of Australia, 10 December
1996.
[456] [1979] HCA 40 ; (1979) 142 CLR 617 at 633.
[457] See also the discussion by McHugh J
of this passage in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 ; (1994)
179 CLR 520 at 592-593.
[458] Pavey & Matthews Pty Ltd v
Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 253-255.
[459] Chan v Cresdon Pty Ltd [1989] HCA 63 ; (1989)
168 CLR 242 at 254-256.
[460] David Securities Pty Ltd v
Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353 at 370-376.
[461] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 37.
[462] Anonymous [1722] EngR 1 ; (1722) 2 P Wms 75
[24 ER 646].
[463] Freeman v Fairlie (1828) 1
Moore Ind App 305 at 325 [1828] EngR 63 ; [18 ER 117 at 128].
[464] Walters, "British Imperial
Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British
Columbia ", (1992) 17 Queen's Law Journal 350 at 365-373, 385-386.
[465] Taken in Australia to have been
settled by R v Jack Congo Murrell (1836) 1 Legge 72; see also, with
respect to Bonjon's Case , the despatch from Governor Gipps to Lord
Stanley of 24 January 1842 and the reply of Lord Stanley of 2 July 1842
reprinted in British
Parliamentary Papers, Papers Relating to Emigration,
the Aboriginal Population and Other Affairs in Australia 1844 , (1969) vol
8, Colonies Australia , at 143-156.
[466] (1847) 2 SCR (NSW) App 30.
[467] (1889) 14 App Cas 286.
[468] (1889) 14 App Cas 286 at 291.
[469] [1992] HCA 23 ; (1992) 175 CLR 1 at 39.
[470] (1996) 137 DLR (4th) 289 at 382.
[471] R v Cote , unreported, Supreme
Court of Canada, 3 October 1996, pars 42-54 of the judgment of Lamer CJ, with
whom Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ agreed.
[472] The present legal regime in Canada is
supported by s 35 of the Constitution Act 1982 which enshrines "existing
aboriginal and treaty rights". Aboriginal rights encompass more than what in
Canada is regarded as
aboriginal title: R v Adams , unreported, Supreme
Court of Canada, 3 October 1996, pars 26, 27 of the judgment of Lamer CJ, with
whom La Forest, Sopinka, Gonthier,
Cory, McLachlin, Iacobucci and Major JJ
agreed. The text of s 35 is as follows:
"(1) The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
(2) In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and
M&eacute;tis peoples of Canada.
(3) For greater certainty, in subsection (1) 'treaty rights' includes rights
that now exist by way of land claims agreements or
may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty
rights referred to in subsection (1) are guaranteed
equally to male and female
persons."
[473] Baker, The Legal Profession and
the Common Law - Historical Essays , (1986) at 436.
[474] cf Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR
1 at 60; R v Van der Peet (1996) 137 DLR (4th) 289 at 315-316,
317-318, 332.
[475] British Parliamentary Papers,
Papers Relating to Emigration, the Aboriginal Population and Other Affairs
in Australia 1844 , (1969) vol 8, Colonies Australia , at 380. John
Hutt was the second Governor of Western Australia, holding office between 1839
and 1846.
[476] [1983] 2 AC 394 at 438.
[477] [1983] 2 AC 394 at 438.
[478] R v Van der Peet (1996) 137
DLR (4th) 289 at 377 per McLachlin J.
[479] Pepper v Hart [1992] UKHL 3 ; [1993] AC 593.
Statute in Queensland provides to similar effect: Acts Interpretation
Act 1954 (Q), s 14B.
[480] Nelson v Nelson [1995] HCA 25 ; (1995) 184 CLR
538 at 552-555; Orr v Ford [1989] HCA 4 ; (1989) 167 CLR 316 at 326-327, 333-334.
[481] (1884) 9 App Cas 699.
[482] (1878) 10 Ch D 518.
[483] (1878) 10 Ch D 518 at 527.
[484] [1933] HCA 36 ; (1933) 50 CLR 154 at 178-179.
[485] [1908] HCA 55 ; (1908) 7 CLR 1 at 16.
[486] [1909] HCA 75 ; (1909) 9 CLR 547 at 560.
[487] (1878) 10 Ch D 518.
[488] [1995] HCA 47 ; (1995) 183 CLR 373 at 423.
[489] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 86-87.
[490] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 54.
[491] Milsom, The Legal Framework of
English Feudalism , (1976) at 39.
[492] Simpson, A History of the Land
Law , 2nd ed (1986) at 1, 47-48; Edgeworth, "Tenure, Allodialism and
Indigenous Rights at Common Law: English, United States and Australian
Land
Law Compared after Mabo v Queensland " (1994) 23 Anglo-American Law
Review 397 at 428-432.
[493] Jenks, A History of the
Australasian Colonies , (1896) at 59.
[494] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 212; Morris v Pugh [1761] EngR 68 ; (1761) 3 Burr 1241 at 1243 [97 ER 811 at 811];
Fuller, Legal Fictions , (1967) at 56-71.
[495] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[496] Section 8 of The Crown Lands
Act 1884 (Q), s 12 of The Land Act 1897 (Q) and s 6(1) and (2) of
the 1962 Act were all in similar terms.
[497] Section 4 of the 1910 Act followed,
in this respect, the terms of earlier legislation including The Pastoral
Leases Act 1869 (Q) (s 3), The Crown Lands Act 1884 (Q) (s 4) and
The Land Act 1897 (Q) (s 4) and the pattern is continued in the
definition of "Crown Land" in s 5 of the 1962 Act.
[498] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 48.
[499] The term "Public Purposes", as it
appeared in the definition of "Crown Land" in the 1910 Act, itself was defined
in s 4 by reference
to a lengthy list of objects or purposes, including
"Aboriginal reserves".
[500] The effect of the proviso to par (c)
of the definition of "Crown Land" was to classify as Crown land susceptible of
grant or demise
under s 6 land held merely under an occupation licence issued
under Pt III (ss 40-47) of the 1910 Act.
[501] The 1962 Act, s 5 (definitions of
"Crown land" and "Public purposes"), s 6, s 299 (forfeiture).
[502] cf Davies v Littlejohn [1923] HCA 64 ; (1923)
34 CLR 174 at 187-188.
[503] Section 2 of the 1910 Act provided
for this commencement date.
[504] Section 203 of the 1910 Act largely,
but not fully, followed the terms of s 29 of the Unoccupied Crown Lands
Occupation Act 1860 (Q), s 72 of The Pastoral Leases Act 1869 (Q), s
91 of The Crown Lands Alienation Act 1876 (Q), s 124 of The Crown
Lands Act 1884 (Q), and s 236 of The Land Act 1897 (Q).
[505] This is a summary offence (s 206).
[506] [1992] HCA 23 ; (1992) 175 CLR 1 at 66.
[507] [1992] HCA 23 ; (1992) 175 CLR 1 at 114.
[508] The Commonwealth v Anderson
[1960] HCA 85 ; (1960) 105 CLR 303 at 318.
[509] Section 204 was predated (as to the
first paragraph of s 204) by s 28 of the Unoccupied Crown Lands Occupation
Act 1860 (Q), and more fully by s 71 of The Pastoral Leases Act 1869
(Q), s 90 of The Crown Lands Alienation Act 1876 (Q), s 123 of The
Crown Lands Act 1884 (Q), and s 235 of The Land Act 1897 (Q).
[510] Being The Land Commissioner for the
district in which the land in question is situated, or a Deputy Land
Commissioner: see the
definition in s 4.
[511] (1870) 2 QSCR 99.
[512] (1870) 2 QSCR 99 at 106.
[513] [1908] HCA 34 ; (1908) 6 CLR 143.
[514] [1908] HCA 34 ; (1908) 6 CLR 143 at 147-148. See
also Owens v Collector of Customs for the State of New South Wales
(1940) 40 SR (NSW) 605 at 609.
[515] [1908] HCA 34 ; (1908) 6 CLR 143 at 155 per Barton J,
160 per O'Connor J.
[516] [1908] HCA 34 ; (1908) 6 CLR 143 at 164. See also
Cotterill v Penn [1936] 1 KB 53 at 61.
[517] cf McGraw-Hinds (Aust) Pty Ltd v
Smith [1979] HCA 19 ; (1979) 144 CLR 633 at 643; Clyne v Deputy Commissioner of
Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 10, 15-16; Murphy v Farmer [1988] HCA 31 ; (1988) 165
CLR 19 at 26-27.
[518] Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR
209 at 222; Street v Mountford [1985] UKHL 4 ; [1985] AC 809 at 827.
[519] Voli v Inglewood Shire Council
[1963] HCA 15 ; (1963) 110 CLR 74 at 90.
[520] (1882) 21 Ch D 9.
[521] Chan v Cresdon Pty Ltd [1989] HCA 63 ; (1989)
168 CLR 242 at 264.
[522] Arnold v Mann [1957] HCA 64 ; (1957) 99 CLR
462 at 475.
[523] Andrews v Hogan [1952] HCA 37 ; (1952) 86 CLR
223 at 250; Chelsea Investments Pty Ltd v Federal Commissioner of
Taxation [1966] HCA 15 ; (1966) 115 CLR 1 at 6.
[524] [1923] HCA 64 ; (1923) 34 CLR 174 at 187.
[525] [1982] HCA 69 ; (1982) 158 CLR 327 at 344.
[526] cf Goldsworthy Mining Ltd v
Federal Commissioner of Taxation [1973] HCA 7 ; (1973) 128 CLR 199, affd [1975] HCA 3 ; (1975) 132 CLR
463; there the issue was whether a dredging lease granted by the State of
Western Australia
pursuant to the Iron Ore (Mount Goldsworthy) Agreement
Amendment Act 1964 (WA) rendered the taxpayer a lessee for the purposes of
s 88(2) of the Income Tax Assessment Act 1936 (Cth).
[527] [1965] UKHL 1 ; [1965] AC 1175 at 1247-1248.
[528] [1982] HCA 69 ; (1982) 158 CLR 327 at 344.
[529] Fouche v The Superannuation Fund
Board [1952] HCA 1 ; (1952) 88 CLR 609 at 640; Superannuation Fund Investment Trust v
Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330 at 353-354, 362-364.
[530] Registrar of the Accident
Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 1 ; (1993) 178 CLR 145
at 161-168.
[531] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 61.
[532] As considered, for example, in
Chalmers v Pardoe [1963] 1 WLR 677; [1963] 3 All ER 552; Maharaj v
Chand [1986] AC 898; Orr v Ford [1989] HCA 4 ; (1989) 167 CLR 316.
[533] [1910] HCA 40 ; (1910) 11 CLR 171. It will be
necessary to make further reference to this case later in these reasons.
[534] Butts v O'Dwyer [1952] HCA 74 ; (1952) 87 CLR
267 at 286; McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6 ; (1964) 114 CLR 656 at
660-661; Brown v Heffer [1967] HCA 40 ; (1967) 116 CLR 344 at 349-350.
[535] Attorney-General of Victoria v
Ettershank (1875) LR 6 PC 354 at 370; McPherson v Minister for Natural
Resources (1990) 22 NSWLR 671 at 682-683 per Kearney J, affd Minister
for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 697-703, 713-715;
cf Davies v Littlejohn [1923] HCA 64 ; (1923) 34 CLR 174 at 184, 190-191, 196 - it was
held in this case that, in respect of conditional purchases under the Crown
Lands Consolidation Act 1913 (NSW), the Crown did not have a vendor's lien
for the instalments of purchase money not yet due.
[536] State of Queensland v Litz
[1993] 1 Qd R 343 at 349-351.
[537] Property Law Act 1974 (Q), s
1(2) ; Residential Tenancies Act 1975 (Q), s 2. The latter statute was
repealed with effect 3 April 1995 by s 342 of the Residential Tenancies
Act 1994 (Q).
[538] Section 102(2) of the Property Law
Act 1974 (Q) provided that, from the date of commencement of the Act, all
terms of years absolute, were to be capable of taking effect
from
the date
fixed for commencement of the term, without actual entry.
[539] Lord Llangattock v Watney Combe
Reid & Co Ltd [1910] 1 KB 236 at 246, affd [1910] AC 394.
[540] Note, "Is Interesse Termini
Necessary?", (1918) 18 Columbia Law Review 595. If the lease were made
by way of bargain and sale for a term, the term would vest by operation of the
Statute of Uses and without
actual entry: Lutwich v Mitton (1620) Cro
Jac 604 [79 ER 516].
[541] Mann Crossman & Paulin v Land
Registry (Registrar) [1918] 1 Ch 202 at 206-207.
[542] Detailed provision for the mortgaging
of interests, including pastoral leases, under the 1962 Act is made by ss
275-281 of that
statute.
[543] Inserted by s 8 of the Land Act
Amendment Act 1916 (Q).
[544] "General Regulations Under 'The Land
Act of 1910'", published Queensland Government Gazette , vol XCVIII, No
167, 28 June 1912. The Regulations were amended and supplemented from time to
time in the period before the grant
of the second Mitchellton Pastoral Lease,
but nothing turns upon these further Regulations.
[545] Norton on Deeds , 2nd ed (1928)
at 268-272.
[546] [1969] HCA 28 ; (1969) 121 CLR 177 at 194.
[547] Westropp v Elligott (1884) 9
App Cas 815 at 819-820.
[548] It should also be noted that s 104,
contained in Pt IV of the 1910 Act, and s 127, contained in Pt IV, of the 1962
Act, provide
for a "Perpetual Lease Selection". This is identified as "a lease
in perpetuity", something unknown to the common law, there being
no limitation
of time to fix the boundary of the term: see Landale v Menzies [1909] HCA 48 ; (1909) 9
CLR 89 at 125; Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10 ;
[1992] 2 AC 386 at 390, 396-397. The result is the creation of a statutory
title which is sui generis ; see Nolan v Willimbong Shire Council
(1939) 14 LGR (NSW) 89 at 90; Ryall, "Perpetual Leaseholds in New South Wales",
(1937) 11 Australian Law Journal 223; Fry, "Land Tenures in Australian
Law", (1946-1947) 3 Res Judicatae 158 at 167-169.
[549] Section 14(1) states:
"Subject to this Act the lessee of a holding or holder of a license under
this Act shall perform all of the conditions of the
lease or license which by
this Act or by the lease or license are required to be performed by him and for
any failure so to do shall
be liable to the prescribed penalty (if any) and the
lease shall be liable to be forfeited or the license to be determined as
prescribed."
[550] Section 64(3) states:
"The Minister, in his discretion, may exempt a lessee from performing any
condition of fencing imposed upon the lease of a pastoral
lease and may alter
or cancel such exemption."
A power of deletion, variation and amendment of developmental and improvement
conditions, with approval of the Governor in Council
and consent of the lessee,
was conferred by s 14(2).
[551] [1981] HCA 65 ; (1981) 147 CLR 677.
[552] [1981] HCA 65 ; (1981) 147 CLR 677 at 679.
[553] [1981] HCA 65 ; (1981) 147 CLR 677 at 683, 686.
[554] [1910] HCA 40 ; (1910) 11 CLR 171.
[555] In their Notice of Appeal, the
Thayorre People challenge answer "No" given by Drummond J to the question in
par (a) of Question
1C. However, the statement of the grounds of appeal does
not further refer to the matter, and it was not the subject of submissions.
Accordingly, there is no reason to doubt the correctness of the judgment of
Drummond J on the point. I adopt the reasons of Gaudron
J for affirming the
answer given by Drummond J to Question 1C(a).
[556] A preferable description is
"traditional title"; cf Mabo v State of Queensland [No 2] [1992] HCA 23 ; (1992) 175
CLR 1 at 176 per Toohey J. The words "aboriginal natives" appeared in the
Constitution s 127 (now repealed) and in colonial legislation. In the
statement of claim and notice of appeal the appellants refer to "Aboriginal
title". However, such title rights are not confined to Aboriginals. They
extend to other indigenous peoples. The term "native
title" has been used
repeatedly in decisions of this Court and other Australian courts. It is now
used in Federal and State legislation.
It is therefore used throughout these
reasons.
[557] [1992] HCA 23 ; (1992) 175 CLR 1.
[558] Williams v Attorney-General for
New South Wales [1913] HCA 33 ; (1913) 16 CLR 404 at 439 per Isaacs J. See also Fry, "Land
Tenures in Australian Law" (1946-1947) 3 Res Judicatae 158.
[559] Attorney General v Brown
(1847) 1 Legge 312.
[560] Attorney General v Brown
(1847) 1 Legge 312.
[561] Williams v Attorney-General for
New South Wales [1913] HCA 33 ; (1913) 16 CLR 404 at 439.
[562] Randwick Corporation v Rutledge
[1959] HCA 63 ; (1959) 102 CLR 54 at 71.
[563] New South Wales v The Commonwealth
(The " Seas and Submerged Lands Case" ) [1975] HCA 58 ; (1975) 135 CLR 337 at 438.
[564] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 29 per Brennan J.
[565] See also Fry, "Land Tenures in
Australian Law" (1946-1947) 3 Res Judicatae 158 at 158 citing
Williams v Attorney-General for New South Wales [1913] HCA 33 ; (1913) 16 CLR 404 at 439
per Isaacs J.
[566] Cherokee Nation v State of Georgia
[1831] USSC 6 ; (1831) 30 US 1; Worcester v State of Georgia [1832] USSC 39 ; (1832) 31 US 515;
Menominee Tribe of Indians v United States (1968 [1968] USSC 108 ; 391 US 404; Joint
Tribal Council of the Passamaquoddy Tribe v Morton [1975] USCA1 273 ; (1975) 528 F 2d 370; cf
Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 135-136.
[567] Guerin v The Queen [1984] 2
SCR 335; Sparrow v The Queen [1990] 1 SCR 1075; Delgamuukw v The
Queen in Right of British Columbia (1993) 104 DLR (4th) 470; affirmed sub
nom R v Van der Peet (1996) 137 DLR (4th) 289; Apsassin v The Queen
[1995] 4 SCR 344; cf Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 131-135.
[568] In re the Ninety-Mile Beach
[1963] NZLR 461 at 468; cf Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 137.
[569] Milirrpum v Nabalco Pty Ltd
(1971) 17 FLR 141 at 256.
[570] [1992] HCA 23 ; (1992) 175 CLR 1.
[571] Mason CJ, Brennan, Deane, Toohey,
Gaudron and McHugh JJ; Dawson J dissenting.
[572] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[573] eg Bartlett, "Political and
Legislative Responses to Mabo" (1993) 23 University of Western Australia Law
Review 352; McIntyre, "Aboriginal Title: Equal Rights and Racial
Discrimination" (1993) 16 University of New South Wales Law Journal 57;
Reynolds, "The Mabo Judgment in the Light of Imperial Land Policy"
(1993) 16 University of New South Wales Law Journal 27; Lumb, "Native
Title to Land in Australia: Recent High Court Decisions" (1993) 42
International and Comparative Law Quarterly 84; Stephenson and Ratnapala
(eds), Mabo: a Judicial Revolution . The Aboriginal Lands Rights
Decision and its Impact on Australian Law (1993); Nettheim, "Judicial
Revolution or Cautious Correction? Mabo v Queensland " (1993) 16
University of New South Wales Law Journal 1; Hanks, "A National
Aboriginal Policy" (1993) 16 University of New South Wales Law Journal
45; Phillips (ed), Essays on the Mabo Decision (1993); Butt and
Eagleson, Mabo: What the High Court said and what the Government did
(1996); Webber, "The Jurisprudence of Regret: The Search for Standards of
Justice in Mabo " [1995] SydLawRw 1 ; (1995) 17 Sydney Law Review 5.
[574] [1995] HCA 47 ; (1995) 183 CLR 373. Section 12 of
the federal Act was found to be invalid.
[575] [1995] HCA 47 ; (1995) 183 CLR 373 at 460-462.
[576] Native Title Act 1993 (Cth),
Preamble at par 7 sub-par (c).
[577] Native Title Act 1993 (Cth),
s 3(a).
[578] [1996] HCA 2 ; (1996) 135 ALR 225; 70 ALJR 344.
[579] North Ganalanja Aboriginal
Corporation v State of Queensland (1995) 61 FCR 1; 132 ALR 565.
[580] [1996] HCA 2 ; (1996) 70 ALJR 344; 135 ALR 225 per
Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; myself contra.
[581] [1992] HCA 23 ; (1992) 175 CLR 1.
[582] (1996) 63 FCR 450; 134 ALR 637.
[583] For example Delgamuukw v The Queen
in Right of British Columbia (1993) 104 DLR (4th) 470; affirmed sub nom
R v Van der Peet (1996) 137 DLR (4th) 1.
[584] For example United States v Dann
[1983] USCA9 822 ; (1983) 706 F 2d 919; United States v Dann [1985] USSC 33 ; (1985) 470 US 39;
United States v Dann [1989] USCA9 338 ; (1989) 873 F 2d 1189.
[585] The Wik Peoples v State of
Queensland [1994] FCA 967 ; (1994) 49 FCR 1; 120 ALR 465.
[586] The Wik Peoples v State of
Queensland [1994] FCA 967 ; (1994) 49 FCR 1; 120 ALR 465.
[587] North Ganalanja Aboriginal
Corporation v State of Queensland (1995) 61 FCR 1; 132 ALR 565.
[588] [1996] HCA 2 ; (1996) 70 ALJR 344; 135 ALR 225.
[589] The Wik Peoples v State of
Queensland , unreported, 6 September 1994.
[590] [1996] HCA 2 ; (1996) 70 ALJR 344; 135 ALR 225. The
submissions concerned the statutory right to mediation.
[591] cf [1996] HCA 2 ; (1996) 70 ALJR 344 at 384; [1996] HCA 2 ; 135 ALR
225 at 278.
[592] Pursuant to O 29 r 2(a) Federal Court
Rules.
[593] (1996) 63 FCR 450 at 450-452; 134
ALR 637 at 705-708.
[594] House v The King [1936] HCA 40 ; (1936) 55 CLR
499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 ; (1981) 148 CLR 170 at 177; Williams & Humbert Ltd v W & H Trade
Marks (Jersey) Ltd [1986] AC 368 at 435-436, 441. Cf Possfund Custodian
Trustee Ltd v Diamond [1996] 2 All ER 774 at 778-781; [1996] 1 WLR 1351 at
1355-1358.
[595] [1995] 2 AC 633 at 693-694;
approved X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at
740-741 per Lord Browne-Wilkinson; applied Mulcahy v Ministry of Defence
[1996] 2 WLR 474 at 477-478.
[596] [1992] HCA 23 ; (1992) 175 CLR 1 at 61.
[597] [1992] HCA 23 ; (1992) 175 CLR 1 at 60, 71.
[598] Cherokee Nation v State of Georgia
[1831] USSC 6 ; (1831) 30 US 1; Worcester v State of Georgia [1832] USSC 39 ; (1832) 31 US 515. See
Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 193 per Toohey J; Reynolds,
Aboriginal Sovereignty. Reflections on Race, State, and Nation (1996);
Hooker, Legal Pluralism. An Introduction to Colonial and Neo-Colonial Laws
(1975).
[599] cf Coe v Commonwealth [1993] HCA 42 ; (1993)
68 ALJR 110; 118 ALR 193; Walker v State of New South Wales [1994] HCA 64 ; (1994) 69
ALJR 111; 126 ALR 321 per Mason CJ.
[600] See Rogers, "The Emerging Concept of
'Radical Title' in Australia: Implications for Environmental Management"
(1995) 12 Environmental and Planning Law Journal 183; Stuckey,
"Feudalism and Australian Land Law: 'A Shadowy, Ghostlike Survival'?" (1994)
13 University of Tasmania Law Review 102. cf North Ganalanja
Aboriginal Corporation v State of Queensland (1995) 61 FCR 1 at 29; 132
ALR 565 at 591 per Lee J.
[601] Blackstone, Commentaries on the
Laws of England, vol 2, 105.
[602] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 159-160. cf Edgeworth, "Tenure,
Allodialism and Indigenous Rights at Common Law: English, United States and
Australian Land
Law Compared After Mabo v Queensland " (1994) 23
Anglo-American Law Review 397.
[603] (1993) 104 DLR (4th) 470; affirmed
sub nom R v Van der Peet (1996) 137 DLR (4th) 1.
[604] (1993) 104 DLR (4th) 470 at 494-497
applying Paul v Canadian Pacific Ltd (1988) 53 DLR (4th) 487 at 505;
R v Sparrow (1990) 70 DLR (4th) 385 at 411. See also the warning of the
Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC
399 at 403, noted in Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 195 per Toohey J.
[605] Second Reading of the Aboriginals
Protection and Restriction of the Sale of Opium Bill 1897 (Q), Queensland
Legislative Assembly,
Parliamentary Debates (Hansard), 15 November 1897
at 1538-1539.
[606] Queensland Legislative Assembly,
Parliamentary Debates (Hansard), 15 November 1897 at 1539.
[607] Debate in Committee on the
Aboriginals Protection and Restriction of the Sale of Opium Amendment Bill
1897, Queensland Legislative
Council, Parliamentary Debates (Hansard), 8
October 1901 at 1139
[608] Queensland Government
Gazette No 7, Vol LXIX, 8 January 1898 at 66; Queensland Government
Gazette, No 150, Vol LXXII, 18 November 1899 at 1166.
[609] Annual Report of the Northern
Protector of Aboriginals for 1903, Queensland, Parliamentary Papers ,
(1904) at 870.
[610] Annual Report of the Northern
Protector of Aboriginals for 1900, Queensland, Votes and Proceedings ,
(1901) vol 4 at 1335-1337.
[611] [1992] HCA 23 ; (1992) 175 CLR 1 at 70.
[612] Transcript of proceedings at 197.
[613] cf Constitution s 51 (xxxi);
Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1994) 179 CLR 155;
Georgiadis v Australian and Overseas Telecommunications Corporation
(1994) 179 CLR 297.
[614] See Oceanic Sun Line Special
Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 252.
[615] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 162.
[616] Millard on Real Property
(NSW) , (4th ed) (1935) at 474.
[617] In 1947 it was estimated that only 8%
of Queensland had been alienated on freehold tenure compared with 34% in New
South Wales
and 54% in Victoria.
[618] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 161, 163.
[619] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 69 per Brennan J.
[620] There being no relevant reservation
of Aboriginal rights which could have the consequence of preserving native
title, expressed
in or able to be implied from either the applicable Queensland
Acts, the relevant Executive acts of the Queensland Government or
the terms of
the leases involved. See The Wik Peoples v State of Queensland (1996)
63 FCR 450 at 480-481, 483-487, 488; 134 ALR 637 at 666, 669-672, 673.
[621] (1995) 61 FCR 1; 132 ALR 565.
[622] (1995) 61 FCR 1 at 55-56; 132 ALR 565
at 617.
[623] (1995) 61 FCR 1 at 14; 132 ALR 565 at
577.
[624] (1995) 61 FCR 1 at 55; 132 ALR 565
at 616-617.
[625] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[626] [1992] HCA 23 ; (1992) 175 CLR 1 at 110.
[627] (1995) 61 FCR 1 at 55; 132 ALR 565 at
617.
[628] [1992] HCA 23 ; (1992) 175 CLR 1 at 71-72.
[629] Fry, "Land Tenures in Australian
Law" (1946-1947) 3 Res Judicatae 158 at 163. There were about 70
different types of Crown leasehold at the time of this article.
[630] (1995) 61 FCR 1 at 55; 132 ALR 565 at
616.
[631] [1992] HCA 23 ; (1992) 175 CLR 1 at 15-16.
[632] [1992] HCA 23 ; (1992) 175 CLR 1 at 217.
[633] [1992] HCA 23 ; (1992) 175 CLR 1 at 110.
[634] [1992] HCA 23 ; (1992) 175 CLR 1 at 111.
[635] [1992] HCA 23 ; (1992) 175 CLR 1 at 197.
[636] (1995) 61 FCR 1 at 29; 132 ALR 565 at
592.
[637] [1992] HCA 23 ; (1992) 175 CLR 1 at 70.
[638] (1995) 61 FCR 1 at 55; 132 ALR 565 at
616.
[639] (1995) 61 FCR 1 at 24-29; 132 ALR 565
at 587-592.
[640] See Reynolds, "Native Title and
Pastoral Leases" in Stephenson and Ratnapala (eds), Mabo: A Judicial
Revolution (1993); Yandama Pastoral Co v Mundi Mundi Pastoral Co
Ltd [1925] HCA 38 ; (1925) 36 CLR 340 at 353 per Isaacs J.
[641] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 161. See also Roberts,
History of Australian Land Settlement 1788-1920 (1968) at 179.
[642] The Crown Lands Unauthorized
Occupation Act 1836 (NSW) was operative from 1 January 1837 until 31
December 1838. It was amended by the Crown Lands Unauthorized Occupation
Act 1838 (NSW) which commenced operation on 1 January 1839.
[643] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 160-161.
[644] Section 25.
[645] New South Wales Government
Gazette, 22 May 1839.
[646] Supplement to New South Wales
Government Gazette , 7 October 1847 at 1070-1077.
[647] Despatch No 24, Earl Grey to Sir
Charles FitzRoy 11 February 1848; Despatch No 134, Earl Grey to Sir Charles
FitzRoy, 6 August 1849.
[648] Despatch No 24, Earl Grey to Sir
Charles FitzRoy, 11 February 1848.
[649] New South Wales Government
Gazette , 26 April 1850.
[650] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 161.
[651] Proclamation 10 February 1842,
Queensland Government Gazette, 15 February 1842 at 267.
[652] Government Notice, Queensland
Government Gazette, 10 May 1842 at 690-691.
[653] Order in Council, 6 June 1859,
Queensland Government Gazette , 10 December 1859 at 1-3. The 1847 and
1849 Orders in Council were repealed by Queensland legislation in 1860 and
1868: see Unoccupied Crown Lands Occupation Act 1860 (Q), s 2; The
Crown Lands Alienation Act 1868 (Q), s 1. Such provisions had the effect
of repealing the clauses expressly permitting Aboriginal access.
[654] Order in Council, 6 June 1859,
Queensland Government Gazette , 24 December 1859 at pars 17, 20.
[655] eg Unoccupied Crown Lands
Occupation Act 1860 (Q); Tenders for Crown Lands Act 1860 (Q);
Occupied Crown Lands Leasing Act 1860 (Q); Pastoral Occupation Act
1862 (Q); The Pastoral Leases Act 1863 (Q); Pastoral Assessment
Act 1864 (Q); Leasing Act 1866 (Q); The Crown Lands Alienation
Act 1868 (Q); The Pastoral Leases Act 1869 (Q); Settled Pastoral
Leases Act 1870 (Q); Crown Lands Alienation Act Amendment Act 1876
(Q); Settled Districts Pastoral Leases Act 1876 (Q); Crown Lands Act
1884 (Q); The Land Act 1897 (Q); Pastoral Leases Act 1900
(Q); The Pastoral Holdings New Leases Act 1901 (Q); Land Act 1902
(Q); The Land Act 1910 (Q); and Land Act 1962 (Q). There were
many more statutes of relevance to pastoral leases and their incidents.
[656] [1909] HCA 48 ; (1909) 9 CLR 89 at 100-101 per
Griffith CJ; see also Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222;
Chelsea Investments Pty Ltd v Federal Commissioner of Taxation [1966] HCA 15 ; (1966)
115 CLR 1 at 8.
[657] eg Wildash v Brosnan (1870) 1
QCLLR 17 at 18; Heness v Bell (1906) 3 QCLLR 47 at 49-50. See also R
v Tomkins [1919] St R Qd 173 at 190, 199.
[658] See Reynolds, Dispossession.
Black Australians and White Invaders (1989), Ch 7.
[659] Babaniaris v Lutony Fashions Pty
Ltd [1987] HCA 19 ; (1987) 163 CLR 1 at 15. cf Bropho v Western Australia [1990] HCA 24 ; (1990)
171 CLR 1 at 23; Mason, "Prospective Overruling", (1989) 63 Australian Law
Journal 526.
[660] Second Reading Speech on the Judiciary
Bill, House of Representatives, Parliamentary Debates (Hansard), 18
March 1902 at 10968.
[661] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 50:
"[R]adical title, without more, is merely a logical postulate required to
support the doctrine of tenure ... and to support the
plenary title of the
Crown (when the Crown has exercised its sovereign power to appropriate to
itself ownership of parcels of land
within the Crown's territory)."
See also Western Australia v The Commonwealth (Native Title Act Case)
[1995] HCA 47 ; (1995) 183 CLR 373 at 422.
[662] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[663] St Catherine's Milling and Lumber
Company v The Queen (1888) 14 App Cas 46 at 55; Attorney-General for
Quebec v Attorney General for Canada [1921] 1 AC 401 at 409-410; Amodu
Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403.
[664] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[665] [1992] HCA 23 ; (1992) 175 CLR 1 at 46-47; see also
Devereux and Dorsett, "Towards a Reconsideration of the Doctrines of Estates
and Tenure" (1996)
4 Australian Property Law Journal 30.
[666] [1992] HCA 23 ; (1992) 175 CLR 1 at 58.
[667] In re Southern Rhodesia [1919]
AC 211 at 233.
[668] For example, in Ceylon (as it was then
called) the doctrine was accepted by the courts, that until a change in land
tenure was effected
by a clear and deliberate act on the part of the Crown, the
interests derived before the acquisition of sovereignty would be enforced:
Hooker, Legal Pluralism - An Introduction to Colonial and Neo-Colonial
Laws (1975) at 467 citing Abeyesekera v Jayatillaka (1932) 33 NLR
51.
[669] [1992] HCA 23 ; (1992) 175 CLR 1 at 68, 110.
[670] In re Southern Rhodesia [1919]
AC 211 at 235.
[671] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[672] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[673]
Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 58-59.
[]
674 [ [1992] HCA 23 ; (1992) 175 CLR 1 at 59, 61.
675] See Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 110 per Deane and Gaudron
JJ who note that common law native title will be extinguished by a lease
"conferring
the right to exclusive
possession".
[676] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[677] Deane and Gaudron JJ also
contemplated that, at least in some circumstances, the grant of a leasehold
with exclusive possession
could effect extinguishment. See [1992] HCA 23 ; (1992) 175 CLR 1 at
110.
[678] Landale v Menzies [1909] HCA 48 ; (1909) 9 CLR
89 at 100-101.
[679] Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR
209 at 222; O'Keefe v Malone [1903] AC 365 at 377.
[680] American Dairy Queen (Q) Pty Ltd v
Blue Rio Pty Ltd [1981] HCA 65 ; (1981) 147 CLR 677 at 686; Minister for Lands and
Forests v McPherson (1991) 22 NSWLR 687 at 696-697, 712-713. cf O'Keefe
v Malone [1903] AC 365 at 377.
[681] Wildash v Brosnan (1870) 1
QCLLR 17 at 18; Macdonald v Tully (1870) 2 QSCR 99 at 105-106; R v
Tomkins [1919] St R Qd 173 at 190, 194-195, 198-199.
[682] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[683] [1992] HCA 23 ; (1992) 175 CLR 1 at 68.
[684] Land Act 1910 (Q), ss 100,
103, 106, 108, 122, 130, 135. cf Land Act 1962 (Q), s 122.
[685] cf Goldsworthy Mining Ltd v
Federal Commissioner of Taxation [1973] HCA 7 ; (1973) 128 CLR 199 at 213; affirmed [1975] HCA 3 ; (1975)
132 CLR 463. See also Glenwood Lumber Company v Phillips [1904] AC 405
at 408-409.
[686] Pastoral lease land did not remain
Crown land for the purpose of Land Acts : see Land Act 1897 (Q),
s 4; Land Act 1910 (Q), s 4; Land Act 1962 (Q), s 5. However, it
did remain Crown Land for many other statutes: see Mining Act 1898 (Q),
s 3; Mining Act 1968 (Q), s 7; Petroleum Act 1923 (Q), s 3 ;
Forestry Act 1959 (Q), s 5. Pastoral lease land remained subject to the
issue of licences to cut timber, to dig and remove stone, gravel etc.
The
holders of
such licences were also entitled to depasture animals used for the
purpose of exercising the rights under the licence:
Land Act 1897 (Q), s
227; Land Act 1910 (Q), s 199. The pastoralist did not have the power
to restrict a person duly authorised from cutting or removing timber or
material
or from searching for metal or minerals: Land Act 1897 (Q), s
229; Land Act 1910 (Q), s 200. The pastoralist could not ringbark or
destroy trees without permission or cut down trees other than for the purpose
of the pastoral holding: Land Act 1897 (Q), s 231; Land Act 1910
(Q), s 201; Land Act 1962 (Q), s 250. Pastoral leases contained a
condition reserving in favour of the Crown the right to proclaim reserves and
to resume
land required for the purpose of such reserves: Land Act 1902
(Q), ss 12(1)(iii),(iv) and (v); Land Act 1910 (Q), s 6(4); Land Act
1962 (Q), s 6(4). One of the purposes for which a reserve could be
proclaimed was for the use and benefit of Aboriginal inhabitants
of Queensland:
Land Act 1897 (Q), s 190; Land Act 1910 (Q), s 4; Land Act
1962 (Q), s 5. A pastoral lease was subject to resumptions without
compensation payable except for improvements: Land Act 1897 (Q), s 209;
Land Act 1910 (Q), s 146; Land Act 1962 (Q), ss 307, 314. A
person driving stock was entitled to pass through a pastoral lease and
depasture stock on any part of the
land within half a mile of the road used for
droving: Land Act 1897 (Q), s 230; Land Act 1910 (Q), s 205;
Land Act 1962 (Q), s 375.
[687] 2 Co Litt 270a.
[688] [1918] 1 Ch 202 at 206. See also
O'Keefe v Williams [1910] HCA 40 ; (1910) 11 CLR 171 at 190. cf North Ganalanja
Aboriginal Corporation v State of Queensland (1995) 61 FCR 1 at 53-54; 132
ALR 565 at 614-615 per Hill J.
[689] Property Law Act Amendment Act
1975 (Q). See now Property Law Act 1974 (Q) s 102. Cf
Conveyancing Act 1919 (NSW), s 120.
[690] 5 & 6 Vict c 36. There was an
irrelevant exception preserved by s xvii, whereby the Governor's power to grant
licences for
periods of up to 12 months (squatters' annual licences) was
preserved.
[691] Fry, Freehold and Leasehold
Tenancies of Queensland Land (1946) at 19; Fry, "Land Tenures in
Australian Law" (1946-1947) 3 Res Judicatae 158 at 160.
[692] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 169.
[693] Fry, "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 160.
[694] O'Keefe v Malone [1903] AC
365; Glenwood Lumber Company v Phillips [1904] AC 405.
[695] Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR
209 at 222; cf Berkheiser v Berkheiser and Glaister (1957) 7 DLR (2d)
721.
[696] [1982] HCA 69 ; (1982) 158 CLR 327.
[697] [1982] HCA 69 ; (1982) 158 CLR 327 at 344.
[698] [1903] AC 365 at 377.
[699] Minister for Lands and Forests v
McPherson (1991) 22 NSWLR 687 at 696.
[700] Land Act 1910 (Q), s 204;
Land Act 1962 (Q), s 373(1).
[701] See the Acts contained in footnote
686 above.
[702] Water Conservation and Irrigation
Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; Roberts v
Hopwood [1925] AC 578 at 602; Bromley London Borough Council v Greater
London Council [1981] UKHL 7 ; [1983] 1 AC 768 at 813.
[703] Watts, "The Conveyancer. Timber
Agreements" (1945) 19 Australian Law Journal 183; Baalman, "The
Neglected Profit &agrave; Prendre" (1948) 22 Australian Law Journal
302.
[704] On the rights exercisable under a
profit &agrave; prendre see Mason v Clarke [1955] AC 778 at 796. See
also Reid v Moreland Timber Co Pty Ltd [1946] HCA 48 ; (1946) 73 CLR 1.
[705] Mabo v Queensland (" Mabo
[No 1] ") (1988) 166 CLR 186 at 224; Mabo [No 2] [1992] HCA 23 ; (1992) 175
CLR 1 at 111; Western Australia v The Commonwealth (Native Title Act Case)
[1995] HCA 47 ; (1995) 183 CLR 373 at 422 .
[706] Mabo [No 1] (1988) 166
CLR 186 at 213; Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 64, 110-111; Western
Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at
423.
[707] Mabo [No 1] (1988) 166
CLR 186 at 213, 223.
[708] Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR
277 at 304; Sorby v The Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281 at 289-90, 309;
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at
341; Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 at 495-496; see also Bropho
v Western Australia [1990] HCA 24 ; (1990) 171 CLR 1; Corporate Affairs Commission (NSW)
v Yuill [1991] HCA 28 ; (1991) 172 CLR 319.
[709] Corporate Affairs Commission (NSW)
v Yuill [1991] HCA 28 ; (1991) 172 CLR 319; Bropho v Western Australia [1990] HCA 24 ; (1990) 171
CLR 1. The courts have accepted presumptions as to the result of development
of the law unforeseen at the time that
original
legislation
was enacted. Thus,
where legislation which had disturbed proprietary rights was repealed, the
courts would
infer that
it was Parliament's
intention that the repeal would
revive and restore the pre-existing common law rights of property.
See
Marshall v Smith [1907] HCA 33 ; (1907) 4 CLR 1617 at 1634. Here, the legislative text
is unchanged but a major hypothesis upon which it was drafted and enacted
has
been varied with
retrospective effect.
[710] cf Guerin v The Queen [1984] 2
SCR 335 at 376; Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 201-203 per Toohey J.
[711] There are indications of legislative
intent that some protection be afforded to Aboriginals in other respects: see
Aboriginals Protection and Restriction of the Sale of Opium Act 1897
(Q); The Aboriginals Preservation and Protection Act 1939 (Q).
[712] Delgamuukw v The Queen in Right of
British Columbia (1993) 104 DLR (4th) 470 at 529, quoted with approval
in Western Australia v The Commonwealth (Native Title Act Case)
[1995] HCA 47 ; (1995) 183 CLR 373 at 433; affirmed sub nom R v Van der Peet (1996)
137 DLR (4th) 289.
[713] eg Arthur v Bokenham 11 Mod
150 cited in Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277 at 304.
[714] Penny v Penny [1965] NSWR
990.
[715] Greville v Williams [1906] HCA 97 ; (1906) 4
CLR 694.
[716] Corporation of Yarmouth v Simmonds
(1877) 10 Ch D 518 at 528; Goodwin v Phillips [1908] HCA 55 ; (1908) 7 CLR 1 at 16;
Chief Commissioner for Railways and Tramways (NSW) v Attorney-General for
New South Wales [1909] HCA 75 ; (1909) 9 CLR 547 at 560. See also Hocking v Western
Australian Bank (1909) 9 CLR 738 at 746; The Commonwealth v Hazeldell
Ltd [1918] HCA 75 ; (1918) 25 CLR 552 at 563; Melbourne Corporation v Barry [1922] HCA 56 ; (1922)
31 CLR 174 at 206.
[717] Chief Commissioner for Railways
and Tramways (NSW) v Attorney-General for New South Wales [1909] HCA 75 ; (1909) 9 CLR 547
at 560.
[718] Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
at 68.
[719] [1992] HCA 23 ; (1992) 175 CLR 1 at 42-43.
[720] Fry "Land Tenures in Australian Law"
(1946-1947) 3 Res Judicatae 158 at 163.
[721] See Mabo [No 2] [1992] HCA 23 ; (1992) 175 CLR
1 at 145-160 per Dawson J.
[722] Statement of claim, pars 48A-53.
[723] Statement of claim, pars 54-58.
[724] Statement of claim, pars 59-61.
[725] Statement of claim, pars 61A-64.
[726] Statement of claim, pars 65-68.
[727] [1976] Qd R 231.
[728] Mining Royalties Act 1974
(Q).
[729] [1976] Qd R 231 at 239
[730] [1967] 1 AC 141 at 157.
[731] Cudgen Rutile [No 2] Pty Ltd v
Chalk [1975] AC 520 at 535.
[732] Commonwealth Aluminium Corporation
Limited v Attorney-General [1976] Qd R 231 at 258-260 per Dunn J.
[733] The Wik Peoples v State of
Queensland (1996) 63 FCR 450 at 509; 134 ALR 637 at 693 per Drummond J.
[734] (1978) 52 ALJR 286 at 291; 17 ALR
129 at 138.
[735] [1941] AC 308 at 322.
[736] [1893] AC 104 at 123.
[737] [1974] UKHL 1 ; [1974] AC 765 at 791.
[738] Campbell, "Legislative Approval of
Government Contracts" (1972) 46 Australian Law Journal 217 at 218.
[739] cf Caledonian Railway Company v
Greenock and Wemyss Bay Railway Co (1874) LR 2 Sc and Div 347 at 348-350.
[740] See for example Attorney-General
(NSW) v Trethowan [1931] HCA 3 ; (1931) 44 CLR 394 at 429-431; Eastgate v Rozzoli
(1990) 20 NSWLR 188 at 193-198; Bignold v Dickson (1991) 23 NSWLR 683 at
693-694.
[741] (1946) 47 SR (NSW) 16 at 18.
[742] (1946) 47 SR (NSW) 16 at 19.
[743] Falcon v Famous Players Film Co
[1926] 2 KB 474 at 491, cited in University of New South Wales v
Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 12.
[744] Adelaide Corporation v Australasian
Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481 at 489, 497.
[745] See Julius v Lord Bishop of
Oxford (1880) 5 App Cas 214 at 222-223.
[746] Seddon, Government Contracts -
Federal, State and Local (1995).
[747] The Corporation of the Director of
Aboriginal and Islanders Advancement v Peinkinna (1978) 52 ALJR 286 at 291;
17 ALR 129 at 138-139.
[748] X (Minors) v Bedfordshire County
Council [1995] 2 AC 633 at 740-741.
[749] [1861-73] All ER 397 at 404; (1866) LR
1 HL 93 at 112 per Blackburn J. The aphorism assumes the absence of any
constitutional limitations.
[750] Such as In re Earl of Wilton's
Settled Estates [1907] 1 Ch 50; Pyx Granite Co Ltd v Ministry of Housing
and Local Government [1960] AC 260.
[751] Section 2 of the Aurukun Act.
[752] Queensland, Parliamentary
Debates (Hansard), vol 269 at 2409.
[753] The Corporation of the Director of
Aboriginal and Islanders Advancement v Peinkinna (1978) 52 ALJR 286; 17 ALR
129.
[754] Part VIII, cl 19.
[755] Queensland, Parliamentary
Debates (Hansard), vol 269 at 2541.

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