Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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23 December 1996, Canberra
Aboriginal people -- Native Title
Pastoral leases -- clear and plain intention to extinguish native title -- relationship between native title and pastoral leases -- effect of lessee's non-entry into possession -- extinguishment of native title by grant of inconsistent rights -- revival of radical title of the Crown upon surrender of the lease -- pastoral leases do not necessarily extinguish native title.
Statutory interpretation -- history of land settlement considered -- whether a pastoral lease granted under the Land Act 1910 (Qld) and the Land Act 1962 (Qld) confers a right of exclusive possession.
In proceedings brought in the Federal Court prior to the enactment of the Native Title Act 1993, the Wik peoples claimed to hold traditional title over certain areas of land in Queensland. At first instance, Drummond J, found that pastoral leases that had been issued over the land conferred rights of exclusive possession on the lessees and therefore had extinguished any native title. Leave was granted for the appellants to appeal to the Full Federal Court, and the matter was subsequently removed to the High Court.
The decision concerned the Mitchellton and Holroyd pastoral leases (1,385 and 2,830 sq kms respectively). The first Mitchellton lease, issued under the Land Act 1910 (Qld) (`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 had been reserved for the benefit of Aborigines.
The first Holroyd lease, issued under the 1910 Act in 1945, was surrendered in 1973. The second lease, issued under the Land Act 1962-1974 (Qld) (`the 1962 Act'), was for a term of 30 years from 1 January 1974.
None of the leases contained an express reservation in favour of Aboriginal people.
The Mitchelton leases and the first Holroyd lease were expressed to be `for pastoral purposes only', while the second Holroyd lease was not expressed to be limited `for pastoral purposes only'.
In 1957, the Government of Queensland procured the passage through the Parliament of Queensland of the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld). Section 2 of the Act authorised the Queensland Government to enter into an agreement with Comalco, and s. 3 gave the agreement statutory force. This agreement was subsequently made, and notification of it 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 which was issued on 3 June 1965. The lease was varied on a number of occasions in the manner provided for by s. 4 of the Act.
The appeal was primarily a challenge to Drummond J's conclusions that the pastoral leases granted to the lessees exclusive possession and therefore extinguished native title. The appellants argued that the leases did not grant rights of exclusive possession. They also argued that if pastoral leases granted a right of exclusive possession, it was not the grant of the lease, but the exercise of rights under the lease that extinguished native title. They further argued that native title was not extinguished, but merely suspended during the term of the lease, and that the Crown held a reversion as a fiduciary for the native title holders.
The appellants did not challenge the validity of the pastoral leases, but argued that native title rights co-existed with the interests of the lessees.
The respondents' case was that an essential feature of a lease at common law is that it confers exclusive possession on a lessee, and that the leases therefore extinguished native title. It was also argued that reservations in favour of Crown access for minerals and timber were necessary derogations from the grant of exclusive possession.
The appellants also challenged the validity of a statutory agreement between the Queensland Government and Comalco, and the grant of a mining lease pursuant to this agreement. They argued that the agreement and the lease were entered into in breach of procedural rights owed to the appellants, or in breach of trust or a fiduciary duty on the part of Queensland, that the lease was therefore invalid and did not extinguish the appellants' native title rights.
Pastoral lease issues
Held (per Toohey, Gaudron, Gummow and Kirby JJ; Brennan CJ, McHugh and Dawson JJ dissenting):
The pastoral leases in question did not confer rights of exclusive possession on the lessees, and therefore the leases were not necessarily inconsistent with native title. Whether the rights conferred by pastoral leases are inconsistent with native title rights can only be determined after the rights of the native title holders have been determined, and then compared with the rights of the pastoral lessees. Where native title rights and the rights of lessees are inconsistent, the lessees' rights prevail.
Statutory agreement issues
Held (per Curiam):
The legislation providing for the statutory agreement gave it the force of law once it came into effect in accordance with the legislation, and actions authorised by the agreement (such as the granting of the mining lease) could not be set aside on the basis that others may have lost rights as a result of those actions.
(Per Brennan CJ (McHugh and Dawson JJ concurring)): The vulnerability of native title to extinguishment by the Crown does not create a free standing fiduciary duty. It is necessary to identify some action or function which attracts a fiduciary duty. The power of alienation is not such a function since imposing a fiduciary duty in relation to the exercise of a power of alienation would preclude its exercise.
General approach to interpreting the Land Acts (Qld), and construing the pastoral leases
Toohey J:
[170] ... 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.
[172] ... Many statutes were passed between 1860 and 1962 which provided for or affected pastoral leases ... 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".
[173-174] ... 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.
Gaudron J:
[204] 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. 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.
Gummow J:
[226] ... 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.
[226] ... 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. ... 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.
Kirby J:
[271)] ... 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.
The Question of Exclusive Possession
Toohey J:
[175] ... "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.
[176] ... 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.
[181] ... [T]here 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.
Gaudron J:
[205] ... 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. ... 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.
[206] ... 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. 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. 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.
[206-207] ... 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 ...
Extinguishment
Toohey J:
[183-184] ... 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.
[184] ... What emerges ... 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.
[185] ... 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". 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.
[188] ... 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.
[19] [Gaudron, Gummow and Kirby JJ concurring] ... 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.
Gaudron J:
[193] ... 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.
[208-209] ... 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". 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.
[218] ... to the extent that there is any inconsistency between the satisfaction of conditions [attached to the pastoral leases] 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.
[218] ... 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.
Gummow J:
[245] ... The ordinary meaning of the phrase "for the purpose of pasture" is the feeding of cattle or other livestock upon the land in question. 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.
[246] ... 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.
[247] ... 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.
[248] ... 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.
Kirby J:
[274] ... 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 [1] or is lost only when a school, a courthouse or a public building is erected on such land, [2] 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.
[275] ... 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.
[279] ... 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.
[284] ... 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. If not, the native title recognised by our law will survive.
[285] ... 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. ... The position of the countless other leasehold interests in Queensland, described by Dr Fry 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].
Consequences of the reversion of the lease to the Crown
Toohey J:
[185] ... [A] consequence of sovereignty is the attribution of radical title to the Crown. But radical title does not of itself carry beneficial ownership. ... [T]he grant of an estate in land does not require the Crown to assume beneficial ownership of the land [that is, and thereby extinguish native title]
[186] ... 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. 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.
Statutory Agreements
Kirby J (with whom Toohey, Gaudron, and Gummow JJ concurred on this point):
[287] ... The Wik claims in relation to the Comalco Agreement 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).
(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.
(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.
(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.
(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.
[289] ... 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. ... 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.
[292] ... 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. ... 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.
The Minority Judgement (Brennan CJ; Dawson and McHugh JJ concurring):
The Rights of Lessees under Pastoral Leases
[140] ... 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.
[140-141] ... The quoted phrase is taken from my judgment in Mabo v Queensland [No 2] (hereafter Mabo [No 2]) where it was used in reference to a possible construction of a statutory provision which made it an offence for a person to be found in occupation of Crown land, not being a lessee or licensee. ... 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. ... 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]: "Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement". 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.
[141] ... 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.
[142-143] ... [B]oth 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 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.
[145] ... 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.
[145] ... In American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd 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.
[148] ... 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. [3] 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.
Inconsistency between a lessee's rights and the continued right to enjoy native title
[155] ... 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." [4] 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.
[152] ... 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.
[152] ... 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.
[153] ... 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.
[153] ... 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. 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.
The nature of the Crown's reversion
[154-155] ... In Mabo [No 2] I expressed the view: [5]
"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.
[156] ... The English system of private ownership of estates held of the Crown rests on "two fundamental doctrines in the law of real property", 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.
[157] ... 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; [6] it is not an interest held of the Crown, mediately or immediately.
[158] ... 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.
Claims for equitable relief
[160] ... 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-à-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. 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 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) to the exclusion of the interest of any other person or the separate interest of the beneficiary.
* The decision is reported in (1996) 141 ALR 129; (1996) 71 ALJR 173.
* See also Indigenous Law Bulletin (1997) Vol 4 Issue 1, special Wik edition. l
Endnotes
[1] [1992] HCA 23; (1992) 175 CLR 1 at 68.
[2] [1992] HCA 23; (1992) 175 CLR 1 at 68.
[3] [1985] UKHL 4; [1985] AC 809 at 816.
[4] [1992] HCA 23; (1992) 175 CLR 1 at 64 per Brennan J; at 111 per Deane and Gaudron JJ; at 196 per Toohey J.
[5] [1992] HCA 23; (1992) 175 CLR 1 at 68; see also at 72-73.
[6] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 48-49.
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