Australian Indigenous Law Reporter
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Court and Tribunal Decisions - Australia
Full Federal Court (Beaumont, Von Doussa and North JJ)
3 March 2000
[2000] 170 ALR 159; [2000] FCA 191
Native title — bundle of rights or a right to land — does it include a right to maintain, protect and prevent misuse of cultural knowledge — continuing connection — physical presence on the land not essential — biological descent — observance of traditional laws and customs — estate groups within a wider community.
Extinguishment — inconsistency — partial extinguishment — onus of proof — extinguishing effect of various grants and proclamations including WA pastoral leases and mining tenements — effect of wildlife conservation and national parks legislation — application of limitation periods to native title claims — can native title be suspended.
Determination of native title under Native Title Act 1993 (Cth) — requirements of s 225 — identification of native title holders — whether determination must cover the whole of the claim area.
Native title — Native Title Amendment Act 1998 (Cth) — Titles Validation Act 1995 (WA) — occupation of land by native title claimant group under s 47A Native Title Act.
On 24 November 1998, the Federal Court determined that the Miriuwung and Gajerrong peoples[1] held native title over land and waters in Western Australia and the Northern Territory. Save for the construction of roads, permanent public works, freehold grants and some reserves, native title had not been extinguished.
On appeal to the Full Federal Court the trial judge’s findings on the Miriuwung Gajerrong peoples’ connection with the land were upheld. Beaumont and Von Doussa JJ departed from the trial judge and the dissenting judge on the issues of extinguishment and the nature of native title. Partial or total extinguishment had taken place in much of the claim area.
Title was correctly vested in the composite group of Miriuwung and Gajerrong people rather than the separate estate groups. A range of relationships may lead to membership of the group; there is no strict patrilineal descent test.
The determination does not have to specify which members of the group may exercise particular rights in relation to particular areas or provide a means of determining the individuals who make up the group.
Actual physical occupation of the land is not necessary to establish continuing connection.
A native title right to ‘maintain, protect and prevent the misuse of cultural knowledge of the common law holders’ cannot be the subject of a determination.
The ultimate burden of proof rests on the applicants to show that extinguishment has not occurred.
Native title is a ‘bundle of rights’, not an interest in land. Partial extinguishment can occur. If native title rights are inconsistent with rights conferred under a grant, the inconsistent native title rights are extinguished and the bundle of rights which is ‘native title’ is reduced. A succession of different grants has a cumulative effect.
The ‘inconsistency of incidents’ test determines extinguishment by grant. It requires comparison between the legal nature and incidents of the native title and the statutory grant. The question is not whether the interest granted has been exercised in a manner incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised.
Inconsistent grants extinguish native title, unless made for a finite short period and without the likelihood of renewal. Once extinguished, there can be no revival.
Extinguishment may occur at the time of the grant because of inconsistency, or at a later date because of ‘operational inconsistency’ — where a grant imposes a condition to be performed in the future which, until performed, has no effect in terms of inconsistency (for example, conditions in pastoral leases requiring improvements). Native title is extinguished when the condition is complied with.
Pastoral leases partially extinguish native title by destroying the exclusivity of native title rights to possess, occupy, use and enjoy the land and to make decisions regarding use and enjoyment and access thereto.
Western Australian pastoral leases contain reservations protecting Aboriginal peoples’ rights of access to unenclosed and unimproved parts of the land. Native title has been wholly extinguished over enclosed and improved areas. This is not the case for Northern Territory pastoral leases, which contain a reservation in wider terms.
Perpetual leases to the Conservation Land Corporation for the purpose of carrying out the functions of the Parks and Wildlife Commission did not extinguish native title rights that had survived the earlier grant of pastoral leases. Vesting of land in the Corporation only conferred the powers of control and management necessary for the Corporation to discharge its functions.
Mere reservation of land for a public purpose did not extinguish native title but it is necessary in the case of each reservation to consider whether there is also a dedication which creates inconsistent rights in the public, or a use which has this effect, having regard to the nature of the purpose.
Native title was wholly extinguished over the Ord and Argyle Diamond Project lands. The scope and nature of such major projects are completely inconsistent with the continued enjoyment of native title.
The Rights in Water and Irrigation Act 1914 (WA) which vests the right to the use and flow of water in the Crown confers powers of control and management which extinguish the exclusivity of native title rights. By-laws have a similar effect.
Land required for the Ord Project was resumed and vested in the Minister. Vesting only conferred powers of management and control, however, those powers were exercised to implement the Project. Such use was inconsistent with the continued enjoyment of native title. This extended to land resumed for the Project which remained unused.
The Mirima National Park was not necessary for the Project. Exclusivity of native title rights had been extinguished by the previous grant of a pastoral lease but if this were not so, the dedication of the Park as a class A reserve would have had the same effect.
Vesting of property in fauna in the Crown by the Wildlife Conservation Act 1950 (WA) conferred only powers of control and management. However s 23, which excepted Aboriginal people from the prohibition against taking fauna save for in nature reserves or wildlife sanctuaries, extinguished native title rights to take fauna in a nature reserve or wildlife sanctuary. Section 211 of the Native Title Act would override this where the reserve was created after the Racial Discrimination Act 1975 (Cth).
A native title right to use and enjoy ‘resources’ is limited to resources of a customary or traditional kind which would encompass ochre but exclude minerals mined by modern methods.
State and Territory mining legislation wholly extinguished native title rights to minerals and petroleum. West Australian mining and general purpose leases also extinguish native title as the mining legislation establishes a regime that is inconsistent with the use of the land by any other person.
Most leases in issue, including conditional purchase leases, special leases and leases of reserves, had wholly extinguished native title. Grazing licences extinguished only the exclusivity of native title rights.
Native title is a right to land and there cannot be partial extinguishment. The test for extinguishment is whether there is the requisite inconsistency between the rights created by the law or act and native title. The inconsistency must be fundamental, total or absolute. Native title rights can be suspended where the inconsistency is limited in duration.
Exclusive possession leases merely suspend native title and mining and petroleum tenements do not extinguish.
Any native title rights in relation to ‘resources’ includes any materials existing in or on the land or produced from the land, which may include modern means of exploitation of the resources. Furthermore, the common law can recognise a right to protect the misuse of cultural knowledge.[2]
...
55. Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 established that on the acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to that part. Where native title rights and interests in or in relation to that land existed at the time, the common law in Australia recognises those rights and interests as a burden on that radical title. The term ‘native title’ is used to conveniently describe the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants: at 57 per Brennan J. In expressing their agreement with the reasons of Brennan J, Mason CJ and McHugh J, at 15, said that six members of the Court were in agreement:
... that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs to their traditional lands ...
56. The principles declared by Mabo [No 2] have been applied in subsequent decisions by the High Court: see Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (the Native Title Act Case) at 452, 492; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 (the Waanyi Case) at 613; The Wik Peoples v State of Queensland (1996) 187 CLR 1 (Wik) at 84-85, 100, 129, 135, 175-176 and 213; Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 126-128 and 154 and Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 at 268-269, 277-278 and 298. These decisions have been recently discussed in a Full Court of this Court in Commonwealth of Australia v Yarmirr & Others (1999) 168 ALR at 426 at 434 (the Croker Island Case).
57. The concepts of native title recognised by the common law do not constitute a title which is an institution of the common law. In Fejo Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 128:
Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.
58. It follows that the existence and content of native title is a question of fact to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis: Mabo [No 2] at 58 and 61, the Native Title Act Case at 452 and Wik at 169. As we observed in the Croker Island Case, at 435, native title is therefore ‘highly fact specific’.
59. In Wik, Gummow J, citing Mabo [No 2], said (at 169):
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. 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. 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. (Footnotes omitted)
60. In Mabo [No 2] Brennan J made a number of general observations about the nature and incidents of native title. First, as native title is not an institution of the common law, it is not alienable by the common law. However, his Honour observed at 59-60 that many clans or groups of indigenous people have been physically separated from their traditional lands and have lost their connection with it, but:
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.
61. Secondly, native title, being recognised by the common law may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. Recognition however is dependent on the native title arising under the laws and customs of the indigenous inhabitants not being so repugnant to natural justice, equity and good conscience that judicial sanctions must be withheld (at 59), and so long as recognition would not ‘fracture a skeletal principle of our legal system’ (at 43).
62. Thirdly, where an indigenous people (including a clan or group) as a community, are in possession or are entitled to possession of land under a proprietary native title, that communal title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community’s lands: at 62.
63. Where native title survived the Crown’s acquisition of sovereignty and radical title, the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Brennan J at 69 said:
Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg, authorities to prospect for minerals).
Deane and Gaudron JJ referred to extinguishment at 110:
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.
64. In the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case their Honours said at 452-453 that:
The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.
65. In Fejo, Kirby J at 151 referred to ‘the inherently fragile native title right, susceptible to extinguishment or defeasance ...’.
66. The High Court in Fejo at 126 confirmed that native title is extinguished by a grant in fee simple because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any rights or interests in land which together make up native title. The Court held that once native title had been extinguished, it was necessarily at an end, and could not revive if the land came to be held again by the Crown. In their joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, at 128:
As Brennan J pointed out in Mabo [No 2] the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title.
67. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the acts of the executive in exercise of powers conferred upon it: Mabo [No 2] at 63-64 per Brennan J, 110-111 per Deane and Gaudron JJ, and 195-196 per Toohey J. In Wik Brennan CJ observed at 84-85, that 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.
68. A law or executive act of the first kind will not have the effect of extinguishing native title ‘unless there be a clear and plain intention to do so’: Mabo [No 2] at 64, 111 and 196, and Wik at 85. Such an intention is not to be collected by inquiry 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 the power supporting it. The test of intention to extinguish is an objective test.
69. In the second situation 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 actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. (See also Mabo [No 2] at 68 and the Native Title Act Case at 422). The exercise of power must, however, be in terms that ‘clearly, plainly and distinctly’ create rights that are inconsistent with the continued exercise of native title rights and interests (see Wik at 171 and Yanner at 289 per Gummow J). Where the exercise of power is made under statutory authority, the statute must authorise the creation of rights which have this effect (see Mabo [No 2] at 63).
70. In the third situation, the Crown acquires a full beneficial ownership that extinguishes native title by acquisition of native title. This may occur by acquisition, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Alternatively, the Crown, without statutory authority may acquire beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. The appropriation will give 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 a court house, or laying a pipeline. Brennan CJ noted that the mere reservation of land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land, 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 the land used: Wik at 85-86.
71. In the Croker Island Case we observed at 438-439, that in Wik all seven members of the High Court propounded similar tests to determine whether a statutory grant by the Crown was inconsistent with the continued enjoyment of native title: Brennan CJ, with whom Dawson and McHugh JJ agreed at 86-87, Toohey J at 126 and 132-133, Gaudron J at 135, Gummow J at 185 and Kirby J at 221 and 238. The test was described by Kirby J at 221 as ‘the inconsistency of incidents’ test, and we shall adopt that description. The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted 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 (see Brennan CJ at 87, and Kirby J at 238).
72. The inconsistency of incidents test approved by the members of the High Court in Wik was applied in Fejo at 126-127 and 154-155.
73. Where a law or executive act creates rights in a third party which are inconsistent with the continued enjoyment of native title rights, the inconsistency, and extinguishment, will occur at the time of the grant. The grant may however confer or impose on the grantee a power or condition to be exercised or performed in the future and which, until exercised or performed, has no immediate legal effect in terms of inconsistency: see Wik at 166 per Gaudron J. In Wik, Gummow J at 203 instanced conditions in pastoral leases requiring improvements to the land under which the construction of an airstrip and dams in compliance with the conditions could, at the time of the performance of the conditions, bring about an abrogation of native title. See also Yanner at 289. Inconsistency arising in this situation may conveniently be described as operational inconsistency.
74. The NTA is Parliament’s response to the decision in Mabo [No 2]. The main objects of the NTA are set out in s 3:
Main objects
The main objects of this Act are:
(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
75. Whereas Mabo [No 2] held that the common law recognised native title rights and interests in land, s 6 of the NTA provides that the NTA extends to the coastal sea of Australia and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth).
76. ‘Native title’ is one of the key concepts in the NTA, and is defined in s 223 as follows:
(1) The expression native title or native title rights and interests 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
(c) the rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
77. The interpretation of this definition and the application of the principles discussed in Mabo [No 2] to the coastal sea, are considered in the Croker Island Case. As we there noted at 441-442, the notion of extinguishment of native title by law or executive act is not referred to in s 223 of the NTA. However, it is clear that if native title were so extinguished before the Racial Discrimination Act 1975 (Cth) it cannot be revived, nor can it be recognised and protected under the NTA. See the Native Title Act Case at 452-454 and Yanner at 269. The principles concerning extinguishment that are central to the present case do not turn on provisions in the NTA, as the Crown grants, reservations and uses which the appellants say caused extinguishment occurred (with very few exceptions) before 1976. It is only those communal, group or individual rights and interests of Aboriginal peoples presently possessed under the traditional laws acknowledged, and the traditional customs observed by them that can be the subject of a determination of native title on the application made under s 13(1) of the NTA.
78. The trial judge in the present case formulated principles by which to determine whether extinguishment has occurred in terms which we consider depart from the inconsistency of incidents test approved by the High Court in Wik and Fejo. His Honour said (at ALR 508):
Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by ‘adverse dominion’: see United States v Santa Fe Pacific Railroad Co at [1942] USSC 12; 314 US 339 (1941) at 347.
In Delgamuukw v British Columbia (1993) 104 DLR(4th) 470 per Lambert JA at 670-2 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof ...
79. The trial judge does not expressly say that he adopts an adverse dominion test which involves the three conditions stated by Lambert JA in Delgamuukw, but it is apparent from his consideration of pastoral leases, and other grants to third parties later in his judgment, that he has done so.
80. We consider that this test of adverse dominion departs from the principles laid down by the High Court in the following respects. The first condition stated by Lambert JA propounds a test that there be a clear and plain intention by parliament to extinguish native title by the creation of third party rights. That requirement does not give due weight to the inconsistency of incidents test, the importance of which underlies the following statement in the joint judgment in Fejo at 128:
As Brennan J pointed out in Mabo [No 2], the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title.
81. The inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests. It is to be noted that Lambert JA in Delgamuukw at 671 said that he did not think that there was any basis in principle for saying that inconsistency between the grant and native title necessarily means that it is the native title that must give way. This view is not consistent with the inconsistency of incidents test adopted in Australia.
82. The second condition stated by Lambert JA, namely that the grant ‘demonstrates the exercise of permanent adverse dominion ...’ introduces a notion of permanency which has not been required by the High Court. In Mabo [No 2], Brennan J at 68-69 and Deane and Gaudron JJ at 110 recognised that a lease granting exclusive possession will extinguish native title. A lease is only for a term of years, and is not permanent. The notion that native title can revive at the conclusion of the term of the lease is, in our view, inconsistent with the joint judgment in Fejo at 131.
83. The notion that a grant of statutory rights inconsistent with the continuance of native title rights must be permanent to bring about extinguishment is also inconsistent with the observations of Brennan J in Mabo [No 2] at 68 that:
... 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 court house 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.
84. The use of land for a school, a court house or a public office may not be permanent, but more importantly, his Honour’s examples indicate that extinguishment occurs as a result of the inconsistent use independent of the likely duration of that use.
85. If the grant of statutory rights is a grant only for a short finite period, the grant may not be inconsistent with the continuance of native title rights. Whether extinguishment occurs will depend on all the circumstances and is likely to involve matters of degree. However, as a general proposition, we consider that an inconsistent grant of statutory rights, other than for a finite short time, will extinguish native title rights to the extent of the inconsistency. Even in the case of inconsistent grants stated to be of short duration, eg a lease for a short term, if at the time of the grant there were a likelihood that the grant would be renewed at the end of the term, so as to make the duration of the lease in fact indefinite, extinguishment to the extent of the inconsistency would occur.
86. The third condition stated by Lambert JA requires ‘actual use’ by the holder of the tenure which is permanently inconsistent with the continued existence of native title. The requirement of actual use is again contrary to the inconsistency of incidents test approved in Wik and Fejo. Under that test, conflict in actual use is only a material consideration where the grant itself does not extinguish native title, but the later exercise or performance of a power or condition contained in the grant does so. We have earlier referred to this as operational inconsistency.
87. In Wik and Fejo it was not necessary for the High Court to consider whether there could be ‘partial extinguishment’ of native title: that is, whether if the grant, the exercise of a right or privilege contained in the grant or the Crown use of land, were not wholly inconsistent with the rights of the holders of native title, but were inconsistent with the enjoyment of some only of those rights, the inconsistent rights are extinguished to the extent of the inconsistency. Whether partial extinguishment of this kind is a possible legal consequence of a statutory grant is a major issue of contention between the parties in this case.
88. The question of ‘partial extinguishment’ of native title rights has not been authoritatively determined by the High Court, nor has it been determined by a decision of a Full Court of this Court. The respondent’s contention in Yanner was that s 7(1) of the Fauna Conservation Act 1974 (Qld) had extinguished the appellant’s native title right to hunt young estuarine crocodiles and to that extent had partially extinguished native title rights traditionally enjoyed by the community of which he was a member. In their joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ said it was unnecessary for the decision of the case to examine that submission, and the issue was left open. We will return to judgments of the other members of the Court in Yanner later in these reasons.
89. In Mabo [No 2] Brennan J at 57 used the term ‘native title’ as a convenient description of the rights and interests of indigenous inhabitants of land. However, native title is not an institution of the common law: Mabo [No 2] at 59 and 61, and Fejo at 130. In Yanner at 299 Callinan J observed that the language of the Justices of the High Court when reference is made to native title has tended to be couched, as perhaps it only can be, in terms of ‘incidents’, ‘nature’, ‘rights’, ‘traditions’, ‘customs’ and ‘entitlements’. (His Honour gave references to occasions when those terms have been used). In the Waanyi Case at 616 it was said in the joint judgment in relation to the right to negotiate conferred by Subdiv B of Div 3 of the Act that ‘[i]t is erroneous to regard the registered native title claimant’s right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application’. And in Fejo in the joint judgment at 126 it is said that a grant of fee simple is inconsistent with native title holders continuing to hold any of ‘the rights or interests which together make up native title’.
90. The notion that the rights and interests of indigenous people, conveniently described as native title, constitute a bundle of rights appears to fit comfortably with the principle stated in Mabo [No 2] by Brennan J at 69, that where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title ‘native title is extinguished to the extent of the inconsistency’. The postscript to the judgment of Toohey J in Wik at 132 also accords with this description, where his Honour said with the concurrence of Gaudron, Gummow and Kirby JJ that:
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.
91. These statements of principle would suggest that if particular rights and interests of indigenous people in or in relation to land are inconsistent with rights conferred under a statutory grant, the inconsistent rights and interests are extinguished, and the bundle of rights which is conveniently described as ‘native title’ is reduced accordingly.
92. However, the trial judge rejected an argument to that effect urged by the appellants. His Honour held (at ALR 508) that:
Native title at common law is a communal ‘right to land’ arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere ‘bundle of rights’: see Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 per Lamer CJ at 240-1. The right of occupation that is native title is an interest in land: see Mabo (No 2) per Brennan J at CLR 51. There is no concept at common law of ‘partial extinguishment’ of native title by the several ‘extinguishment’ of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, ‘native title rights’ have been ‘extinguished’.
Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished.
and later his Honour added (at ALR 510):
Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.
93. The expression ‘fundamental inconsistency’ is not one used in the test of inconsistency propounded in the judgments in Wik. Nor in any of the judgments of the High Court does the notion of parasitic or dependent rights flowing from native title find expression. That is a notion which his Honour appears to have derived from Canadian authorities. However, as Gummow J pointed out in Wik at 182, in Canada the basic legal framework developed quite differently. In Fejo the joint judgment at 130 expressed doubt that much direct assistance is to be had from decisions in other common law jurisdictions, and Kirby J at 148-149 said that care must be exercised in the use of authorities from other former colonies and territories, noting that the position in Canada (and New Zealand) had followed a different course. Canadian jurisprudence owes much to s 35(1) of the Constitution Act 1982 (Can).
94. The trial judge construed the statement of Brennan J in Mabo [No 2] that an inconsistent grant would extinguish native title ‘to the extent of the inconsistency’ as referring to the extinguishment of native title to the extent that there is an area of land in respect of which inconsistent rights may have been granted by the Crown with the intent of extinguishing native title. In this sense there could be partial extinguishment, that part of the area formerly the subject of native title would no longer be subject to any native title rights. This would amount to a partial extinguishment in geographical dimensions, and not a partial reduction in the number of the rights and interests otherwise enjoyed by the Aboriginal community. That conclusion appears to be drawn from observations in Wik by Gaudron J at 166 and Gummow J at 203 relating to inconsistency arising from the performance of conditions in pastoral leases. The passage from the judgment of Gummow J, which his Honour cited, reads:
It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... [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 impositions by the grant, would have brought about the relevant abrogation of native title.
95. The observations of Gaudron and Gummow JJ refer to what we have earlier described as an operational inconsistency. The appellants’ argument that there can be a partial extinguishment of rights by the several extinguishment of one or more components of a bundle of rights is an argument distinct from the possibility that operational inconsistency may wholly extinguish native title in respect of a particular area of land.
96. As the common law does not recognise ‘native title’ as an institution of the common law it is, in our opinion, a mistake to treat native title as a legal construct which is separate from the rights and interests of indigenous people. Whilst references may be found in judgments of members of the High Court to the ‘incidents’ of native title (eg Mabo [No 2] at 58 per Brennan J, Wik at 185 per Gummow J, Yanner at 274 and 278 per Gummow J and at 293 per Callinan J) care is needed in the use of this expression. Under the tenure system of the common law, legal and equitable estates in land are institutions of the common law. Rights attaching to those estates as a matter of law, are described as incidents of the estates or of the title. Rights attaching to common law tenures of that kind are truly pendant or parasitic on the title. That however is not the case in respect of ‘native title’, and the quality of the rights and interests conveniently described as native title cannot be elevated to something akin to a common law tenure by describing them as ‘incidents’.
97. To describe native title as a bundle of rights is not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land, a possibility recognised by Brennan J in Mabo [No 2] at 51 and Gummow J in Wik at 169. Moreover, it is not inaccurate to describe proprietary interests as a ‘bundle of rights’: Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 285 per Rich J and Yanner at 264.
98. As earlier observed, in Yanner, the question whether there could be an extinguishment of some only of the rights and interests constituting native title, in consequence of inconsistency arising from a legislative prohibition on the exercise of a particular right, was left open by Gleeson CJ, Gaudron, Kirby and Hayne JJ. The respondent’s argument was however addressed by Gummow and Callinan JJ. Callinan J would have dismissed the appeal on the ground that the native title right relied on by the appellant had been extinguished by the legislation. At 288-289 Gummow J considered the issue of extinguishment and at para 112 posed the narrow question for decision as ‘whether the creation of certain statutory rights, conditioned upon the exercise of power conferred by the statute, abrogated the exercise of the native title right or incident to hunt’. His Honour concluded that the statute, properly construed, did not have that effect. However, his discussion of the extinguishment issue supports the notion of a partial extinguishment. The remaining member of the Court, McHugh J, held that s 7(1) of the Fauna Conservation Act had vested in the Crown the right to deal with fauna (which included estuarine crocodiles), and took away from everyone else all existing rights to take fauna (at 271). The practical effect of that conclusion was to deny any present right to the appellant (or his community) to take estuarine crocodiles, but it does not necessarily follow that such a right was permanently extinguished, as opposed to being merely suspended. In Yanner, therefore, four members of the Court expressly left open the question of partial extinguishment, one member of the Court did not deal with the question, and the reasoning of two members of the Court supports the notion of partial extinguishment.
99. In the joint judgment in Yanner, four members of the High Court at 269-270 made the following observations in relation to the topic of alleged inconsistency arising from the statutory regulation or prohibition of rights or interests that may be exercised, and native title rights and interests:
... in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’ but ‘[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.’
Native title rights and interests must be understood as what has been called `a perception of socially constituted fact’ as well as ‘comprising various assortments of artificially defined jural right’. (K Gray and S F Gray, ‘The Idea of Property in Land’, in Bright and Dewer (eds), Land Law: Themes and Perspectives, 1998, 15 at 27). And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.
100. The authors of ‘The Idea of Property in Land’ cited by their Honours describe three ways in which common law jurisprudence can conceive of property in land. The first two ways are discussed under the headings ‘Property as a Fact’ and ‘Property as a Right’. Under the first of these headings the authors say at 18-19:
Much of the genius of the common law derives from a rough-and-ready grasp of the empirical realities of life. According to this perspective, the identification of property in land is an earthily pragmatic affair. There is a deeply anti-intellectual streak in the common law tradition which cares little for grand or abstract theories of ownership, preferring to fasten instead upon the raw organic facts of human behaviour. This perspective is preoccupied with what happens on the ground rather than with what emerges from the heaven of concepts. Accordingly, the crude empiricism of this outlook leaves the recognition of property to rest upon essentially intuitive perceptions of the degree to which a claimant successfully asserts de facto possessory control over land. On this view property in land is more about fact than about right; it derives ultimately not from ‘words upon parchment’ but from the elemental primacy of sustained possession. Property in land is thus measurable with reference to essentially behavioural data; it expresses a visceral insight into the current balance of human power relationships in respect of land. (footnotes omitted)
101. The authors go on to say that concealed within this behavioural notion of property is, inevitably, some primal perception of the propriety of one’s nexus with land which asserts that the land is ‘proper’ to one; that one has some significant self-constituting, self-realising, self-identifying connection with the land. Yet, in terms of the empirical perspective which treats property in land as ‘a perception of socially constituted fact’, it is the mode of behaviour consciously adopted by the claimant occupier that is the critical determinant.
102. The authors, whilst recognising that an aspect of the behavioural notion of property is a perception of belonging to the land, which in the context of native title would include spiritual, cultural and social connection with the land, it is the empirical facts, and the behavioural data that evidences that connection, which is recognised and protected by the common law.
103. In Fejo six members of the High Court in their joint judgment at 126 say that a grant of fee simple ‘simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land’, and at 128: ‘[t]he rights of native title are rights and interests that relate to the use of the land by the holders of the native title’.
104. In our opinion references to enjoyment of rights and interests in respect of the land, and to use of the land in these passages, confirm that the native title rights and interests that are recognised and protected by the common law are those which involve physical presence on the land, and activities on the land associated with traditional social and cultural practices. (See also Mabo [No 2] at 188 per Toohey J). Whilst the relationship of indigenous people with their traditional home land is ‘primarily a spiritual affair’, or as Blackburn J described it in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167, a ‘religious relationship’, the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land.
105. Under the heading ‘Property as a Right’ the authors of ‘The Idea of Property in Land’ say, at 27:
A rather different — and not entirely consistent — focus is provided by the competing assessment of property in land as comprising various assortments of artificially defined jural right. On this view, the law of real property becomes distanced from the physical reality of land and enters a world of conceptual — indeed some would say virtually mathematical — abstraction. In sharp contrast to the crudely empirical foundations of property as a fact, the vision of property as a right rests upon a complex calculus of carefully calibrated ‘estates’ and ‘interests’ in land, all underpinned by the political theory implicit in the doctrine of tenure. (footnotes omitted)
106. It is clear from judgments in Mabo [No 2] and Fejo, to which we have already referred, that native title is not an institution of the common law, and not a common law tenure. We do not understand the reference in the joint judgment in Yanner to native title ‘comprising various assortments of artificially defined jural right’ to be an endorsement of a notion that native title is an abstract form of title from which pendant rights are derived.
107. Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition by the common law gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are ‘artificially defined’ under the common law because they arise from the acknowledgment and observance of traditional laws and customs under a different legal system. The common law accords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people.
108. That the common law does not provide for the protection or enforcement of purely religious or spiritual affiliation with land, divorced from actual physical use and enjoyment of the land, has the consequence that the continued recognition of traditional laws and observance of traditional customs may substantially maintain a connection between the indigenous people and the land even after native title rights and interests have under Australian law been totally extinguished, eg by a grant of freehold. This possibility is acknowledged in the joint judgment in Fejo at 128 in the following passage:
The underlying existence of the traditional laws and customs is a necessary prerequisite for native title but their existence is not a sufficient basis for recognising native title. And yet the argument that a grant in fee simple does not extinguish, but merely suspends native title is an argument that seeks to convert the fact of continued connection with the land into a right to maintain that connection.
See also Fejo at 151 per Kirby J, and Yanner at 288 per Gummow J. We return to the topic of the maintenance of a substantial connection with land later in these reasons.
109. In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a ‘bundle of rights’. It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens ‘partial extinguishment’ occurs. In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. Further, it is possible that a succession of different grants may have a cumulative effect, such that native title rights and interests that survived one grant that brought about partial extinguishment, may later be extinguished by another grant.
110. In our opinion the trial judge erred in holding that there is no concept at common law of partial extinguishment of native title.
111. In summary, extinguishment of native title rights or interests may occur in a number of situations, and the extinguishment may be a complete denial of any further native title right or interest. Alternatively, it may constitute an extinguishment or denial of the future enjoyment of some only of the rights and interests. Extinguishment may occur: (1) by laws or acts which simply extinguish native title; (2) by laws or acts which create rights in third parties in respect of an area of land or water subject to native title which are inconsistent with the continued rights to enjoy native title; and (3) by laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. In the second of these situations, extinguishment may occur at the time of the grant because of the inconsistency of incidents of native title and the grant of statutory rights, or, less commonly, may arise subsequently because of operational inconsistency in a particular part of an area over which native title previously existed. In any of these cases 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 the executive.
112. It will be necessary later in these reasons to consider allegations by one or more of the appellants that total or partial extinguishment of native title in parts of the claim area has occurred in each of these ways.
113. The parties in their submissions have addressed issues relating to onus of proof.
114. On an application under s 13 of the NTA for a determination of native title, the applicants must establish that as Aboriginal peoples or Torres Strait Islanders they are presently possessed of communal, group or individual rights and interests in relation to land or waters where those rights and interests fulfil the requirements of paragraphs 223(1)(a), (b) and (c). That will require the applicants to prove the existence of rights and interests held by them under traditional laws acknowledged and traditional customs observed in the relevant area, that they have the necessary descendant relationship with former holders of native title in that area, and that by those laws and customs, they have substantially maintained connection with the land. They must also establish the ambit or content of the native title rights and interests as defined by the traditional laws and customs of their community: cf Yanner at 288-289 per Gummow J. On those matters the applicants plainly carry both an evidential onus of proof, and the ultimate onus, or burden, of proof.
115. The central issue canvassed by the parties in their submissions is whether an onus of proof rests on the applicants to negative extinguishment where extinguishment by inconsistent law or statutory grant is alleged by a party to the application. It follows from the provisions of Part 3 of the NTA that the Commonwealth Minister and the relevant State or Territory Minister will be parties to an application in the Federal Court, and if extinguishment is to be an issue it is likely that it will be raised by a Minister, if not by another party. This is the practical reality that flows from the Crown in right of the Commonwealth, State, or Territory concerned being in the best position to know the pertinent facts.
116. In Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 the relief sought by the plaintiff included declarations to the effect that the Wiradjuri tribe are the owners of land constituting a large part of southern and central New South Wales. On an application by the defendants to strike out the proceedings, Mason CJ at 206 said that he did not consider the State of New South Wales carried the onus of proving extinguishment. The Chief Justice said:
It seems to me that, if the plaintiff asserts native title to land, then the plaintiff must establish the conditions according to which native title subsists. Those conditions include (a) that the title has not been extinguished by inconsistent Crown grant and (b) that it has not been extinguished by the Aboriginal occupiers ceasing to have a requisite physical connection with the land in question. In Mabo (No 2), Brennan J said: ‘Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.’
117. The claim in that case was not made under the NTA, but in the Supreme Court of New South Wales seeking a declaration according to common law principles. Even in an application now brought under the NTA we think it is probably correct, in strictness, to say that the ultimate burden of proof rests on the applicants to establish that extinguishment has not occurred. This is so as the applicants must ultimately show that there currently exists native title rights and interests, and they will fail if the rights and interests asserted have at an earlier time been extinguished by law or Crown grant.
118. That legal burden of proof in the strict sense must however be distinguished from an evidential burden which may rest on the party who asserts extinguishment, and this distinction leads to another, namely the distinction between alleged extinguishment by a law on the one hand, and acts of State or executive action on the other which are said to effect extinguishment.
119. Where extinguishment is said to arise by force of legislation, the legislation itself is a matter of public record that needs no evidential proof. The application of the legislation to the facts of the case is a matter of law, no evidence is required to prove the law, and the legal effect of the legislation is not dependent upon evidence as to the state of mind of the legislators. It is well established by the cases (eg Mabo [No 2] at 64 per Brennan J, 110-111 per Deane and Gaudron JJ and at 195-196 per Toohey J) that the legislation must manifest clearly and plainly an intention to extinguish native title rights and interests before it will have that effect. That requirement is a rule of law relating to the interpretation of a statute, and not a rule of evidence relating to onus of proof. The following passages from the joint judgment in the Native Title Act Case at 422-423 are to be understood as referring to the rule of law relating to interpretation of a statute, not to questions of evidential proof:
Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended ...
... To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown’s intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required. In In Re Southern Rhodesia Lord Sumner said the presumption of the survival of property rights upon conquest was applicable ‘in the absence of express confiscation or of subsequent expropriatory legislation’.
120. The effect of the rule of interpretation and the presumption that no extinguishment is intended is that doubtful expressions and doubtful provisions in legislation are to be resolved in favour of those who are asserting native title. Similar rules of law apply where extinguishment by executive act is asserted when construing the empowering legislation and the written instruments by which the executive act is effected. Where extinguishment is said to arise from an act of State, or executive act, evidence is required to prove the fact and content of the act of State or executive act. For example, where it is alleged that native title is extinguished by the grant of a lease, the fact of the grant and the terms of the lease must be established by evidence in the same way as any other fact that must be proved. In that situation, absent proof of the executive act, the Court would have no basis for finding extinguishment. Thus, in accordance with ordinary principle, the party asserting extinguishment carries an evidential onus of proving the nature and content of the executive act relied upon (although the discharge of that evidential onus may be assisted by the ordinary presumptions of regularity and continuance). However once proved, the effect of that act upon native title rights is a matter of law. For example, if it is proved that a lease has been granted over the subject land, it is then a question of law to interpret the meaning and effect of the terms of the lease.
...
220. Senior Counsel for the State, Mr Pullin QC, followed by Mr Pettit, led the attack on the findings of fact which underlie the conclusion that native title exists, and that the Miriuwung and Gajerrong people are common law holders of the native title. The submissions made were supported by other appellants.
221. Broadly stated, the following challenges arise from submissions of some or all of the appellants:
- the evidence does not establish the requirements identified in Mabo [No 2] by Brennan J (at 70) of ‘biological descent’ and ‘mutual recognition’ (the Territory eschewed this submission);
- the trial judge erred in failing to apply a strict test of patrilineal descent;
- the evidence does not establish that the Miriuwung and Gajerrong people are a single community;
- the evidence does not establish that the named applicants who brought the proceedings in a representative capacity had a continuing connection with the whole of the determination area within the State. It is said that, in respect of some areas, there is no evidence at all of connection since sovereignty, and that in other areas, such as Booroongoong, the lease areas of Crosswalk and Baines River and some areas around Kununurra, the scant evidence of presence on the land over the last few decades by those now claiming native title rights and interests shows no more than random visits to the area insufficient to establish a continuing connection in accordance with indigenous laws and customs;
- on the evidence it should have been found that the flooding of Lake Kununurra in the early 1960s and Lake Argyle in the early 1970s necessarily ended any continuing connection in accordance with the indigenous laws and customs with the flooded areas;
- the evidence does not establish that the Balangarra Peoples were a group with sufficient identity to be recognised as a claimant community, that the applicants represent such a community, or that the Balangarra Peoples had any continuing connection with Booroongoong;
- of the Malngin and Gija estate groups;
- of the Doolboong, Wardenybeng and Goolawarreng peoples; and
- the ancestry of each of the representative applicants;
- membership of particular estate groups and their ‘country’;
- the recognition of each of the representative applicants by other members of communities within the determination area; and
- continuing occupation of those parts of the claim area where the State disputed a continuing connection;
the trial judge erred in law such that the determination should be set aside and either recast by this Court or remitted to the Court below.
222. In the course of presenting these submissions, the State has sought to challenge many specific findings on matters of detail as to the ancestry and connection of applicants and witnesses to parts of the claim area, and for this purpose the Court has been directed to short passages in the evidence of witnesses which appear to contradict particular findings. These aspects of the State’s submissions, in effect, invite the court to re-evaluate the mass of evidence received by the trial judge over the course of a very lengthy trial. Such a task would place an impossible burden on an appeal court. Numerous witnesses gave evidence at many sites of importance to the applicants. The trial judge observed (at ALR 497):
Evidence was usually given in English, but most often it was in broken form, using words of the Miriuwung or Gajerrong languages for names of people, places, objects, animals and for description of cultural matters ...
The difficulties courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited. A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances. Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the Court observes.
223. His Honour went on to observe that it was apparent to him that for a number of witnesses the adversarial system of trial, and their limited ability to express themselves fluently in English, hindered articulation of their evidence. It is apparent from reading the transcript that on many occasions an Aboriginal witness, when answering questions, sought and obtained assistance from other Aboriginal people present at the time, and often the answers recorded indicate that the witness’s response was accompanied by gesture pointing to a feature of the landscape. A reading of the transcript cannot meaningfully convey the response of the witness.
224. Moreover, in many instances we have found when reading the transcript references given in support of the State’s submissions, that the interpretation placed on passages by the State is not the only interpretation open, and is often inconsistent with other passages in the evidence of the same witness to be found in nearby pages.
225. In these circumstances, so long as there is evidence which is open to an interpretation that supports the finding of the trial judge, we consider this Court should not interfere with the findings.
226. The written submissions of the State challenging factual findings have been answered in great detail in the written submissions and attached schedules of the applicants. Our own reading of the evidence to which we have been referred, and the applicants’ submissions, satisfy us that there was evidence capable of supporting the findings of fact made by the trial judge. We are not persuaded that the trial judge fell into error in any of the ways alleged.
227. The arguments in support of the findings of fact contended for by the State on appeal were put before the trial judge. In our opinion there is no basis for the State’s submission that his Honour did not give adequate attention to those submissions. On the contrary, the major ones are expressly addressed in the judgment, where reasons are given for their rejection.
228. The judgment reveals a thorough analysis of evidence from many sources, which led the trial judge to conclude that the present Miriuwung and Gajerrong community is a descendant community identifiable with the Aboriginal people in occupation of the determination area at sovereignty, and that the community has substantially maintained connection with the land by observing, as far as practicable, the traditional laws and customs of its predecessors as presently acknowledged and observed. The conclusions reached by his Honour were not based only on the evidence of primary witnesses, but on evidence from the many sources which he has identified. The evidence of the primary witnesses was assessed against historical evidence of oral histories recorded in the past, and the anthropologists’ evidence and genealogies prepared by them.
229. We have earlier set out his Honour’s conclusion that the requirement of ‘biological descent’ referred to by Brennan J in Mabo [No 2] at 70 involved a broad understanding of the notion of descent, not the application of a narrow and exclusive test. The State challenges this conclusion as being inconsistent with the requirement stated by Brennan J. Moreover, the State contends that a strict patrilineal descent test should have been applied which would have had the consequence that a number of the applicants would not have established ancestral connection with the native title holders at sovereignty.
230. Brennan J in Mabo [No 2] at 61 addressed the question of inheritance and transmission of native title rights. His Honour said:
The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants ... But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
231. That passage does not suggest that a strict test of ‘biological descent’ is to be applied. The reference to ‘biological descent’ in Brennan J’s judgment appears in a summary of conclusions at 70 where his Honour said:
Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
232. When these two passages are read together we think it plain that his Honour was not intending to lay down as an invariable requirement that there be strict ‘biological descent’. Rather, we understand Brennan J to be expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty.
233. Extensive evidence was led concerning the adoption (or ‘growing up’) of children by members of the Miriuwung and Gajerrong community, and within subgroups of the community. In our opinion, the reference by Brennan J to ‘biological descent’ was not intended to exclude such people from membership of the community. The trial judge did not err in rejecting the State’s contention that a narrow and exclusive test of biological descent was required.
234. A requirement of ‘biological descent’ does not mandate that descent be patrilineal. The identity of those presently entitled to enjoy native title rights, is to be ascertained by reference to the traditional laws and customs as currently acknowledged and observed. The evidence in this case is to the effect that under the traditional laws and customs, a whole range of relationships may lead to membership of the community, including ‘father’s country’, ‘father’s mother’s country’, ‘mother’s country’, ‘mother’s mother’s country’, ‘regent’s country’, the country of a spouse, and spiritual conception or birth within the area. In the course of argument the State placed reliance upon Ms Kaberry’s book Aboriginal Woman; Sacred and Profane as providing evidence of a requirement of patrilineal descent. Ms Kaberry’s work lends support to the view that in relation to the enjoyment of particular areas of land by what are now referred to as ‘estate groups’, patrilineal descent was of primary importance. However, Ms Kaberry acknowledged a wide variety of relationships with land, including the right to ‘walk about’ or ‘live and hunt’ in a person’s mother’s country, a person’s mother’s mother’s country, a person’s father’s mother’s country and the place where the person was born (at p 137). The evidence of the applicants discloses that they identify with traditional Miriuwung or traditional Gajerrong country, and have a primary right to ‘speak for’ particular areas within that country. Persons or families are associated with different areas not simply by patrilineal descent, but also through other relationships, for example through mother or grandmother. Some of the witnesses emphasised the importance of a right to speak for country derived through one’s father’s father, as against a right derived through one’s mother’s father or some other line of descent. Thus, in some areas witnesses spoke of people being ‘in front’ and others ‘being behind’, and the possibility was identified of a person being ‘in front’ in one area and in another ‘being behind’, but having influence in more than one area. Differing interests of this kind are explained by the different relationships recognised by the traditional laws and customs under which rights and responsibilities arise.
235. On the evidence, the traditional laws and customs acknowledged and observed by the communities in the determination area at sovereignty, and as currently acknowledged and observed by those recognised amongst themselves as present members of the Miriuwung and Gajerrong community, did not impose a requirement of strict biological descent, let alone patrilineal descent as a prerequisite to membership. The trial judge was plainly correct as a matter of fact to observe that the genealogies admitted into evidence showed ‘a broad spread of links with ancestors’ among the representative claimants and other witnesses who had given evidence in support of the claim. His Honour identified these people at ALR 533-535. That broad spread of links is in our opinion sufficient proof of ‘biological’ connection between the present community and the community in occupation at the time of sovereignty. His Honour’s approach was correct in point of law and correct as a matter of fact on the evidence.
236. The State contends that the trial judge upheld a ‘choice’ rule, where a person can choose either father’s country or mother’s country, and that such a choice rule is in reality evidence of a loss of connection with land, and a complete breakdown in the observance and adherence to traditional laws and customs. That submission is based on the sentence emphasised in the following passage of the judgment: (at ALR 540)
According to the evidence received in this matter ‘estate’ or ‘family’ subgroups continue to play a part in defining a Miriuwung and Gajerrong community. As implied in the description, an ‘estate’ or ‘family’ subgroup is based on descent but on the evidence received in this case its structure now is flexible, not limited to a ‘once and for all’ delineation by birth under a system of strictly patrilineal or matrilineal descent. A person may be included in such a subgroup by adoption and may opt in, or opt out, by exercise of choice.
There were numerous examples of evidence to that effect in this case, in particular, in evidence given by Rita and Stephanie Boombi, Peter Newry, Button Jones, John Toby and George Dixon.
The evidence established that while there may remain a patrilineal bias or expectation in the organisation of such subgroups, young Aboriginal people may have several choices presented by lines of descent as to which subgroup they will identify themselves. Other grounds of choice may be provided by the locus of conception, birth and by adoption. According to the general tenor of the evidence in this case, any right to claim membership of a subgroup, and thus of the community as a whole, may depend upon the course of life of the child concerned. According to life experience, what degree of association the child establishes with one family group rather than another, and what degree of education the child receives in traditional or religious matters of the relevant family group will determine what election is available or has been made: K Maddock, The Australian Aborigines — A Portrait of their Society pp 39-41. (Emphasis added)
237. As is plain from the full passage, the choice available is not one freely to be made at the whim of the young person concerned. On the contrary, the choice is dictated by association of a child with a particular family group and his or her upbringing. The choice, when made, will determine with what area of country the person is primarily associated. Even then, the person may be recognised as having rights of a secondary nature in other sub-areas where he or she will be recognised as ‘being behind’. The choice identified by his Honour in the evidence is not suggestive of a loss of connection with the land.
238. On the question of recognition, the State complains that not all people who claimed in evidence to be Miriuwung were in fact recognised as Miriuwung. The examples given by the State in its submissions are contested by the applicants, and there appears to be evidence sufficient to support the conclusions reached by his Honour in respect of those witnesses whom he has treated as recognised members of the present Miriuwung and Gajerrong community. However, even if there were persons who claimed to be members of the community who were not so recognised, that is not a reason for denying the applicants’ claim. So long as the Court is satisfied that there remains an identifiable community entitled to enjoy native title rights and interests in accordance with traditional laws and customs as currently acknowledged and observed, the community is entitled to a favourable determination. The status of a person claiming to be a member of the community would be a matter for resolution between the registered native title body corporate and that person at a later stage.
239. The State contends that every relevant witness claimed to be either Miriuwung or Gajerrong, and a great majority of those who claimed to be Miriuwung gave evidence that they had a full array of rights only in an estate area. Those witnesses did not claim that other estate areas were their ‘country’. To that point, the submission appears to be correct, but it does not follow that there is not now a Miriuwung and Gajerrong community which acknowledges and observes traditional laws and customs under which members of the community enjoy differing arrays of rights within and outside their particular family or estate country. It follows from what we have earlier said that it is not necessary for each of the named applicants who bring the proceedings in a representative capacity to establish that they possess rights and interests uniformly over the entire determination area. His Honour has addressed in detail the evidence that the Miriuwung community and the Gajerrong community at one time acknowledged and recognised separate territories. His Honour has given reasons for his conclusion that the two communities in more recent times have become regarded (amongst themselves) as a composite community with shared interests. In our opinion that conclusion was in accordance with the evidence.
240. Early in his reasons for judgment, the trial judge held that the determination area was inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty, operating under elaborate traditions, procedures, laws and customs which connected them with the land. The only inference available from the historical and anthropological evidence is that at sovereignty, the communities whose descendants now comprise the Miriuwung and Gajerrong community, enjoyed exclusive possession, occupation and use of almost the entirety of the determination area. In times before sovereignty, actual physical presence on some areas of the country may have been rare, having regard to the lifestyle and seasonal movements of the indigenous population. Nevertheless, the whole is properly to be regarded as their country as there were no other people exercising similar rights. Their possession, occupation, use and enjoyment of the land is fairly to be treated as ‘exclusive’. Only at Booroongoong, in areas at Goose Hill, and in the south-east portion of the determination area was possession, occupation and use shared with other indigenous communities.
241. It is common ground that, in order to establish entitlement to native title, the applicants are required to establish that connection with the land has been substantially maintained through the acknowledgment and observance, so far as practicable, of traditional laws and customs. With the arrival of European settlement, the ways in which the indigenous people were able to possess, occupy, use and enjoy their rights and interests in the land underwent major change. The indigenous population was substantially reduced in numbers, and land uses introduced by the settlers killed or frightened off much of the resources of the land upon which the indigenous inhabitants depended for their day to day sustenance. In these circumstances, the presence of members of the community on large areas of the determination area understandably diminished. In some areas of concentrated settler activity the reasonable inference is that Aboriginal presence became impracticable, save as people employed in the pastoral enterprises that had moved on to their lands. The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.
242. The evidence as to the relationship of the applicants and their ancestors to the determination area accords with evidence which has frequently been given in other cases, about the nature of the relationship of Aboriginal peoples with their lands. That relationship has been described as a ‘religious relationship’ (Milirrupum v Nabalco Pty Ltd at 167) and as ‘primarily a spiritual affair’ (R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 358).
243. Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people have been hunted off the land, or because their numbers have become so thinned that it is impracticable to visit the area. The connection can be maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs. Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.
244. In Mabo [No 2] at 188 Toohey J said:
The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society’s economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society. (footnotes omitted)
That passage must, however, be understood as a general observation regarding the proof required for the recognition of traditional title by the common law. It is not to be understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable or in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers. In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case.
245. In the present case, insofar as the State’s submissions maintain that physical occupation of the land is a necessary requirement for continuing connection with the land, those submissions cannot be accepted.
246. The notion of ‘occupancy’ is in any event indefinite. Occupation and use of land does not necessarily involve exclusive possession, or presence on every part of the land, or active use of every part of the land at all times. In Wheat v E Lacon and Co Ltd [1966] UKHL 1; [1966] AC 552 at 578 Lord Denning observed:
In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be ‘occupiers’.
247. In Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, and in the Privy Council, [1959] AC 248, it was held that a large expanse of vacant land was ‘used or occupied’ by a hospital which maintained the land in its natural state to provide a barrier against noise, dust and fumes, and opportunities for future expansion. In the Privy Council Lord Denning said at 255:
An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he has acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds.
248. Ground 7(a) in the State’s notice of appeal challenges what is said to be an implicit finding that Miriwung people and their ancestors have occupied and used the northern mud flats, the islands off the coast of Western Australia and the eastern coastal region of the Cambridge Gulf from Goose Hill to a point north of Ningbing Station. It is not correct that there was a finding that ‘Miriwung people’ occupied this area. On the evidence, this area was occupied and used by the ancestors of the Gajerrong community, some of whom in earlier times identified as Doolboong and Wardenybeng. Dodger Carlton and Kim Aldus gave evidence identifying the limits of this country, and there was evidence from these witnesses, supported by anthropological evidence, that justified the finding that this was Gajerrong country, and that present members of the Miriuwung and Gajerrong community had relevantly maintained connection with the country through adherence to their traditional laws and customs.
249. The trial judge discussed the evidence concerning the relationship of the Doolboong, Wardenybeng and Gajerrong groups at ALR 547-550. It is possible that Gajerrong may have been an overall tribal label by which the society in occupation of the northern part of the claim area was identified, even at the time of sovereignty. However that may be, the evidence discussed by his Honour plainly supports the conclusion that as far back as living memory goes, those who identified as members of the three groups mixed together socially and culturally, and exploited resources of the land together. Moreover, descendants of those people now identify with the Miriuwung and Gajerrong community, and that connection is rooted in their acknowledgment and observance of traditional laws and customs.
250. Grounds 7(b), (c), (e) and (f) challenge implicit findings that the requisite connection had been established by the applicants in relation to areas in the Carr Boyd Ranges, to the east and south of Bow River, to the east of Lake Argyle in the area to the north of the Behn River, and around Point Springs. There is however evidence, identified by the applicants in Appendix G to their written submissions, which provides a basis for these findings.
251. Ground 7(d) challenges the finding of relevant continuing connection with the areas now covered by Lake Kununurra and Lake Argyle which were flooded in 1962 and 1972 respectively. It is argued that the inundation of these areas by water has effectively prevented any continuing connection.
252. The inundation of the areas by water makes it impracticable to enjoy native title rights and interests insofar as they involve activities ordinarily carried out by physical presence on the land. However, by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land can be maintained. In our opinion it was open on the evidence for the judge to hold that this was the case in respect of the areas covered by the lakes.
253. Grounds 7(g) and (h) challenge findings that Gajerrong country included the three islands in the north of the determination area, and the finding that any Gajerrong people or their ancestors occupied or used the islands, or the east coast of Cambridge Gulf. The evidence of enjoyment of native title rights and interests in these islands by members of the Doolboong, Wardenybeng and Gajerrong groups was extremely limited. Dodger Carlton gave evidence that his only visit to Booroongoong was by helicopter, just before the native title claim was lodged and that he had never been to Ngarrmorr (Pelican Island). No other primary witness gave evidence of going to the islands. Nevertheless, we are satisfied that there was sufficient evidence to support the findings made by the trial judge. The evidence was not merely confined to ‘assertions’ by Dodger Carlton that the islands belonged to him, as the State contends. The trial judge at ALR 548-549 relied on Ms Kaberry’s genealogies, and Associate Professor Christensen’s analysis of them, to support the finding that Gajerrong territory included Booroongoong. Grant Ngabidj’s oral history to Dr Shaw described Ngarrmorr, and the journey of Aboriginal peoples to it. Grant Ngabidj identified himself as Gajerrong. There was also evidence from Ms Kofod that some twenty years earlier Paddy Carlton and an old lady, Daisy Jandoony, told her of the spiritual connections of Gajerrong people to Booroongoong. In addition Dr Shaw had recorded from Grant Ngabidj Dreaming stories for Booroongoong, and Dodger Carlton also made reference to Dreamings associated with the island and other parts of Gajerrong territory. In the result, Associate Professor Christensen, Professor Maddock and Ms Doohan were ad idem in their expert opinions that there are recognised native title interests in Booroongoong from both sides of the Cambridge Gulf. The fact that there was no evidence led of recent or regular visits to the islands by members of the Miriuwung and Gajerrong community is not fatal. The islands are remote and impracticable for members of the present community to access, except where means of transport is provided by other people. The absence of physical presence, as earlier explained, does not mean that members of the present community have lost or abandoned their connection with the islands. In this respect it is important that Dodger Carlton, in his own right and as regent for Kim, Mark and Brexie Aldus, continues to assert that relationship.
254. Ground 7(i) contends that the evidence given by witnesses claiming to be Miriuwung or Gajerrong in respect of various areas identified in Ground 7, and indeed in the whole determination area, ‘was evidence of merely random or coincidental visits, and did not amount to occupation of any of those lands’. Reference is made to random or coincidental visits in the passage earlier set out from the judgment of Toohey J in Mabo [No 2] at 188, but his Honour was there saying that it would be insufficient to establish title if such visits were truly random ‘having no connection with or meaning in relation to a society’s economic, cultural or religious life’. In this case, the evidence given as to visits to the various areas by witnesses and their ancestors, included evidence of visits which were connected with economic, cultural or religious life. The evidence gives a picture of the applicants and their ancestors exercising Aboriginal rights and interests where and when the opportunity arose after European settlement. That evidence includes activities and ‘foot walking’ during holiday time and weekend activities when traditional practices were pursued.
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281. For convenience we shall deal with the submissions made on the appeal in the order and under the headings adopted by the trial judge.
282. It is appropriate to deal first with the appellants’ submissions that the grant of pastoral leases both in the State and the Territory have extinguished all, or alternatively many, of the native title rights and interests claimed by the applicants, as virtually the whole of the claim area at one time or another has been the subject of pastoral leases. The only land not so covered is areas of the coastal flats below the high water mark, and the islands. There is also a question whether a pastoral lease purportedly granted in relation to part of the Goose Hill area, and pastoral leases purportedly granted before the Land Act 1898 (WA), were validly issued, but we put that question aside for the moment.
283. Over the years most areas within the boundaries of the original pastoral leases have been resumed for a variety of purposes, and are now the subject of other statutory grants or interests that require separate consideration later in these reasons. Glen Hill is the only part of the determination area which is still held under a pastoral lease. If a pastoral lease had the effect in law of extinguishing wholly or in part native title in the lands to which it applied, the resumption of part of that land does not have the effect of reviving native title to the extent that it was extinguished.
284. The submissions of the parties have focussed heavily on the decision in Wik which held that pastoral leases issued under Queensland legislation did not necessarily extinguish all native title rights and interests. In Wik neither the legislation nor the pastoral leases contained a reservation in favour of Aboriginal people. The reasons of the members of the High Court consider the historical background which led to the granting of pastoral leases in eastern Australia, and analyse the nature and extent of rights granted to a pastoral lessee. The central question, on which the Court divided, was whether a pastoral lessee obtained a right to exclusive possession. If so, that right would not permit the enjoyment by anyone else of any right or interest in respect of the land and would totally extinguish native title. The majority of the Court held that having regard to the historical setting, the nature of the statutory scheme, the limited purpose of the lease (for pastoral purposes) and the extent of reservations which permitted the entry of Crown servants and others on to the land, the grant of a pastoral lease did not give a right of possession which excluded the Aboriginal people who hitherto had occupied the land. Accordingly, the statutory scheme under which the pastoral leases in question were granted, did not clearly and plainly apply to extinguish native title.
285. In relation to pastoral leases in the State, much attention has been given by the parties in their submissions to expressions used in the legislation, and to the forms of the prescribed pastoral leases. The appellants contended that Wik is distinguishable, and that the history of the legislation relating to pastoral leases in the State plainly and clearly shows that a pastoral lease in the State is truly a ‘lease’ according to common law precepts, and accordingly constitutes a grant of exclusive possession to the pastoral lessee. It is contended that by the adoption of terms and concepts which have technical legal meanings such as ‘lease’, used in contradistinction to ‘licence’, the grant of power to the Governor in early Regulations to alienate land in ‘fee simple or for any less estate or interest’, ‘sublet’, ‘assign’, ‘underlet’, and ‘demise and lease’, combine to indicate that under the legislation in force from time to time pastoral leases have had the character of leases at common law, and in substance constituted a demise of the land itself, carrying with it a legal right to exclusive possession: Glenwood Lumber Co Ltd v Phillips [1904] AC 405; Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 at 222; and Street v Mountford [1985] UKHL 4; [1985] AC 809 at 816, and see also the recent decisions of Bruton v London & Quadrant Housing Trust [1999] UKHL 26; [1999] 3 WLR 150 and KJRR Pty Ltd v Commissioner of State Revenue (1999) 99 ATC 4335 discussed at (1999) 73 ALJ 787. Other grounds of distinction were also suggested. Pastoral leases in the State have been available in undifferentiated form under the relevant legislation for areas of less than 3000 acres in relatively settled green pasture areas of the south-west to very large areas of semi-arid lands near Eucla and ‘quite rough’ terrain in the Kimberley, and in the State the Land Act 1933 (WA), s 106(2), discussed below, makes specific statutory provision for Aboriginal access. The matters identified by counsel are points of difference between the situation in Queensland, and in the State, but we do not consider they provide grounds that render the reasoning of the High Court in Wik inapplicable to the State legislation.
286. In the present case, however, both in the State and in the Territory, the terms of the early pastoral leases, and more recently the provisions of the legislation under which pastoral leases have been granted, contain reservations in favour of Aboriginal people which, in our opinion, make it clear that as a matter of law the pastoral leases in the claim area did not authorise the total extinguishment of all native title rights and interests. For this reason, this case raises questions which did not arise for the consideration of the High Court in Wik. Here it is necessary to consider the extent, if at all, to which pastoral leases affect native title, short of complete extinguishment.
287. We do not think it is particularly helpful in this case to ask whether a pastoral lease is strictly to be treated as a lease in accordance with common law principles. This is so, as pastoral leases are creatures of statute which were designed to facilitate the early settlement of remote areas of Australia: Wik at 122 per Toohey J, 152 per Gaudron J, and 176-177 per Gummow J. As pastoral leases are creatures of statute, the first duty of the Court is to examine the statute and to see whether, consistently with its terms, other rights and obligations that would apply by the general law attach to the statutory entitlements and duties of the parties or are modified: Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 696 per Kirby P.
288. The application of the inconsistency of incidents test adopted in Wik requires an identification of the ambit of the native title rights upon which the applicants rely, and a comparison of those rights with the statutory rights arising under pastoral leases as well as under the legislation pursuant to which they were granted. In the present case this exercise requires a consideration of the relationship between the rights of the native title holders and the pastoral lessees, rather than between the pastoral lessees and various people other than native title holders in whose favour various reservations in the pastoral lease might operate. The latter exercise assumed importance in Wik because there was no reservation in favour of Aboriginal people which demonstrated that a pastoral lessee did not have exclusive possession.
289. In carrying out this comparison, the ambit of the native title rights and interests found by his Honour to exist at the date of sovereignty, and prior to European contact, comprised rights and interests to possess, occupy, use and enjoy the land to the exclusion of all others within the determination area, which more particularly included the rights and interests specified in paragraph 3 of the determination.
290. We accept that the form of the pastoral lease from time to time prescribed, and the use of terms and concepts which have well known technical common law meanings, are indications in favour of the conclusion that a pastoral lease was to be in the nature of a demise of the land carrying with it all the rights which would normally be enjoyed by a common law lessee, save for the restrictions on those rights imposed by the exceptions, reservation and limitations expressed in the grant. The limitations as to use for a prescribed purpose, namely for pastoral purposes, and reservations which permitted the Crown and others to use parts of the land for certain purposes are not necessarily inconsistent with the lessee otherwise having exclusive possession: Goldsworthy Mining Limited v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 at 212-213. The reservations in this case in favour of Aboriginal people however plainly indicate that in relation to Aboriginal people exercising the reserved rights, a pastoral lessee does not have a right of exclusive possession. The rights granted by pastoral leases, even if they have numerous features of a common law lease, are qualified in favour of Aboriginal people by the reservation and the empowering legislation: see Mabo [No 2] at 89, 110 and Fejo at 128.
291. The question for decision here concerns the meaning and scope of the right expressly reserved in favour of Aboriginal people, and the meaning and scope of the rights of pastoral lessees which are to be ascertained from the substance as well as the form of rights granted by the pastoral lease.
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329. In summary, we consider that in Western Australia, the grant of a pastoral lease had the immediate effect of extinguishing the exclusivity of the native title right to possess, occupy, use and enjoy the subject land. However, as pastoral leases were granted subject to a reservation in favour of Aboriginal people, to the extent permitted by the terms of the relevant reservation, Aboriginal people retained the full right to enter upon the land for the purpose of seeking their sustenance therefrom in their accustomed manner. In areas where that reservation applied, the Aboriginal people and the pastoral lessee had rights which co-existed, and the rights of both parties were subject to the requirement of reasonable user. The reservations did not except native title rights to make decisions about the use and enjoyment of the land, and such rights were also extinguished to the extent of the grant to the pastoral lessee of the right to make decisions about the use of the land for pastoral purposes, including as to the location and extent of improvement otherwise permitted by law to be made. However, the reserved right of access ceased to exist under pastoral leases issued before 1933 when the land became enclosed and improved, and also under pastoral leases issued after 1934 when the land became enclosed or improved. Thereafter the activities of the Aboriginal people could no longer come within the limitations as to purpose and geographical location expressed in the applicable reservation. In areas where the reservation ceased to apply native title was wholly extinguished.
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332. The reservations in favour of Aboriginal people in legislation applying from time to time in the Territory have been expressed in terms which more widely cover traditional Aboriginal activities on land than the reservations expressed in State legislation. In the result, although we conclude that pastoral leases granted in respect of the Territory portion of the determination area have also brought about partial extinguishment by abrogating native title rights to exclusively possess, occupy, use and enjoy the land, we consider that there has not been total extinguishment in respect of any area.
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366. In summary, we consider that the grant of the pastoral leases over the claim area in the Territory brought about a partial extinguishment of native title rights, but that the subsequent grants of the two perpetual leases, and three freehold areas did not bring about any further extinguishment of native title. Counsel for the Territory applicants drew the Court’s attention to s 47A of the NTA which he contended had the effect of saving native title from extinguishment by the grants of estates to the Aboriginal Corporations as the grants were ‘for the benefit of Aboriginal people’ within the meaning of the section. We agree with that contention. Moreover, we think s 47A(2)(b) has the wider consequence that the prior grants of pastoral leases are also to be disregarded in respect of the areas covered by the freehold grants. The three freehold grants are in respect of areas held as mentioned in s 47A(1)(b)(ii) but we do not consider they were grants ‘for the provision of services (such as health and welfare services)’ within the meaning of those words in s 47A(2)(b). The notion of ‘services’ in s 47A(2)(b) is a benefit arising from the acts of those providing the services. The conveyances of the land to the Aboriginal corporations were not for the purpose of enabling someone to carry out thereon acts which constitute services. Once the pastoral leases are disregarded, the native title rights and interests in the land transferred to the Aboriginal corporations confer possession, occupation, use and enjoyment of the land on the common law holders to the exclusion of all others (subject, however, to s 47(3)).
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387. His Honour, correctly in our opinion, held that the effect of the reservation of land was to enable the Crown to hold back from alienation areas of land which it deemed necessary to retain for use for public purposes: see Wik per Gummow J at 200-201. By reserving land for a public purpose it protected the land from sale, but did not alter the control of the land which remained with the Crown. No rights were created in favour of third parties, and accordingly no question of the enjoyment of rights by others inconsistent with the continuation of native title could arise. If the land were both reserved and dedicated for a public purpose, for example by the classification of reserved land and as Class A under s 31 of the Land Act 1933, an issue might then arise as to whether the dedication created rights in members of the public, or a section of the public: see Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 per Windeyer J at 74. If so, a further question would arise as to whether the rights created in members of the public were inconsistent with the continued enjoyment of asserted native title rights.
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418. Having concluded that the resumptions under s 109 did not without more indicate a clear and plain intention to extinguish native title, the trial judge said that extinguishment would occur, if at all, when the land was appropriated by the Crown for a public purpose and used for that purpose in a manner inconsistent with the continued enjoyment of native title. This led his Honour to consider the use to which discrete parcels of land had been put, those parcels comprising in the main various reserves established for one purpose or another in and around Kununurra, and discrete allotments of vacant land. In this respect his Honour took a narrow view of the requirement of appropriation and use, requiring, it would seem, actual use of virtually every part of every parcel of land in a permanent manner such as to establish ‘adverse dominion’. For reasons earlier given, we think his Honour erred in the test which he applied to determine if the various uses and grants by the Crown created rights that were inconsistent with the continued enjoyment of native title rights. Moreover, we think that his Honour erred in not considering the Ord Project as a whole when considering the effect of its implementation upon the continued enjoyment of native title rights and interests.
419. Whilst we are of the opinion that the resumption of land under s 109, even though for a stated purpose, did not, standing alone, reveal a clear and plain intention to extinguish native title, the carrying into effect of that purpose could do so. There is a close analogy to be drawn between the effect of a reservation for a purpose, described by Brennan J in Mabo [No 2] at 68, and the resumption of land held under a pastoral lease for a purpose. Paraphrasing the statement of Brennan J, it seems to us that if a resumption is made for a public purpose other than for the benefit of the indigenous inhabitants, a right of 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. In the present case, the several purposes for which resumptions were made under s 109 were carried into effect. The land was vested in the Minister under s 3(2) in pursuance of that purpose. Even though that vesting was of less than a full beneficial interest, for the purpose only of the management and control necessary to carry out the purpose, that management and control has been extensively exercised to implement the Ord Project, including the extensive construction of the dams, the irrigation areas, the roads, the power station and the infrastructure of the township of Kununurra and so on. In our opinion this is a use of the land for a public purpose in a manner which is inconsistent with the continued enjoyment of native title.
420. A similar conclusion follows from the application of the Rights in Water and Irrigation Act. The provisions of s 3(2) are set out above. Not only the land acquired for the purpose of the Act, but all irrigation works constructed under the Act vest in the Minister. ‘Works’ is defined in s 2 as follows:
‘Works’ means works for the conservation, supply, and utilisation of water, together with all sources of supply, streams, reservoirs, artesian wells, non-artesian wells, buildings, machinery, pipes, drains, and other works constructed or erected for the purposes of this Act, and all appurtenances to the same, and all lands reserved, occupied, held, or used in connection with works.
421. Not all of the land resumed under s 109 of the Lands Act 1933 is included within the claim. The claim area does not include land which has been developed as irrigated lands or used for roads or drains, nor does it include land used for the airfield or the land resumed in 1947 for the Kimberley Research Station. Nor does the claim area include that part of the land resumed for the Kununurra Townsite, and actually used for that purpose, but it does include Reserve 37883 which is now the Mirima (Hidden Valley) National Park. This park is a substantial area which comprises the north-east portion of the land resumed and declared as the Kununurra Townsite. Within the land resumed under s 109, the claim area covers various lands which are not used for irrigated lands, roads, drains or areas within the built up area of the Kununurra township. It includes areas described as vacant Crown land on which intensive activities have not occurred, and it includes numerous reserves which have been established by the Minister for one purpose or another. However the land which is claimed is important to the overall operation of the project as it provides buffer zones, drainage, protection against erosion and flooding from higher levels, and makes provision for a range of township and community purposes, and for future expansion of the scheme. There is a substantial part of the fourth farm area resumed in 1967 in the north-eastern sector of the project area which has not yet been developed. It was resumed however for the purpose of future development which is envisaged to take place in due course with the construction of a second main channel running from Lake Kununurra, the extension of the road system including a major bridge over the Keep River, a major drainage system project to protect from run-off from the hills to the north, and the installation of an irrigated farm drain network.
422. The areas resumed were settled upon following detailed and prolonged research and engineering investigation. Regard was paid in some areas for the need to achieve rational boundaries, but we think the evidence justifies the conclusion that the areas selected were otherwise thought to be necessary to accommodate the numerous differing requirements of a project of this kind, including the need to make provision for future development and buffer zones around areas of intensive use. The areas were selected at a time well before it was appreciated that Aboriginal people may have native title claims over the land concerned, and it cannot be suggested that excessive areas were claimed for the ulterior purpose of defeating native title. With the exception only of the Mirima (Hidden Valley) National Park we consider that the land acquired under s 109 of the Land Act 1933 was reasonably required for the purpose for which it was resumed, and has been applied and used for that purpose. Even though some of the land has not been subjected to active earthworks and other development, and has not yet been irrigated, that does not mean that the land is not committed to and in use as part of the project. Earlier in these reasons we referred to dicta from Wheat v E Lacon & Co Ltd and Council of the City of Newcastle v Royal Newcastle Hospital. Those dicta support the view that land held for future expansion, and as a buffer zone, is land which is used in a relevant sense for the purposes of the project. Further, we consider that these lands, again with the exception only of the Mirima (Hidden Valley) National Park, come within the definition of ‘works’ in the Rights in Water and Irrigation Act. Whilst the mere vesting of lands acquired and dedicated for the purpose of the Act in the Minister may not be inconsistent with the continued enjoyment of native title rights for so long as the land remains undeveloped, once ‘works’ are carried out, the management and control of those works ‘and all appurtenances to the same, and all lands reserved, occupied, held or used in connection with works’ give rise to operational inconsistency which has the effect of wholly extinguishing native title rights.
423. The interests asserted by parties within the Alligator appellant group illustrate the types of uses to which the remaining areas of Crown land within the resumed areas are put by people whose activities reflect the implementation of the Ord Project. There are, on our reckoning, thirty-four parties whose properties are separated from the Ord River or Lake Kununurra by a strip of Crown land over which they pump water for their irrigation requirements (and there is evidence that there are a further six people in the same situation who are not parties to the proceedings). There are statements from twenty of these parties who depose to having their own pumps situated on Crown land for the purpose of obtaining water allocations for irrigation purposes. Further, the evidence shows there are a further thirty parties whose lands are further removed from the foreshore of Lake Kununurra, or the Ord River, who exercise their right to draw water by conveying it across Crown land. There are also mining leases permitting their holders to extract gravel from Crown lands, and there are leases for two stone crushing plants which meet the demand for gravel and aggregate.
424. With the exception of the Mirima (Hidden Valley) National Park, we consider the evidence supports the view in this case that all the land resumed under s 109 is land that was reserved, and is now occupied, held and used by the Minister, or others to whom the land has been alienated ‘in connection with the works’.
425. We have excepted the Mirima (Hidden Valley) National Park from the foregoing conclusions. The area of this park is substantial — 2067.9 hectares. It was included in the area declared as the Kununurra Townsite following investigations carried out in 1959 at the request of the State Government. In October 1959 the Department of Lands’ Staff Surveyor reported (following a visit to the area) that major factors controlling the choice of the town site included the need to stay away from the black soil plains that would cause difficulties in erecting and maintaining buildings and providing a functional septic system, and the need for the presence of natural vegetation, particularly shade trees. The site chosen was considered to meet these, and other, requirements and to provide suitable land for expansion of the township. We are however unable to find in the evidence any satisfactory explanation for why it was thought necessary to declare so large an area as the townsite, or why it was thought necessary to include the hilly area which is now the National Park.
426. As events turned out, the township developed further to the west, and partly on land which had been resumed for the diversion dam and associated works. Geographical features, it seems, provided a natural separation of the Mirima (Hidden Valley) National Park from the developed area of the township. The establishment of the National Park was first proposed in 1967 when tourists were becoming increasingly interested in the area. It contains caves and unusual geological formations as well as a good variety of fauna, native paintings, and areas important to the Aboriginal people. The area was created as a reserve and proclaimed as a national park in 1982.
427. The actual township of Kununurra, and all its associated infrastructure, was a necessary and integral part of the Ord Project, and constitutes part of the ‘works’ for the purposes of the Rights in Water and Irrigation Act. However, the evidence does not establish that the area of the Mirima (Hidden Valley) National Park was at the time of the resumption, or at any time since, necessarily reserved, occupied, held or used in connection with the Ord Project, including the township itself. For this reason we think that the Mirima (Hidden Valley) National Park is to be treated differently from the rest of the land that was resumed. Whilst it was resumed for a purpose, it has not been so used or applied. Instead, it has been proclaimed as a national park. It will be necessary later in these reasons to consider the effect of that reservation and proclamation on native title as the park is within the area claimed.
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493. The Wildlife Conservation Act 1950 (WA) (formerly the Fauna Protection Act 1950 (WA)) (and the Fauna Conservation Act 1950 (WA)) in s 14(1) provides:
Except to the extent which the Minister declares by notice published in the Government Gazette pursuant to the provisions of this section all fauna is wholly protected throughout the whole of the State at all times.
494. Under s 14(2) the Minister may from time to time declare that any of the fauna is not protected or is protected to such extent for such period of time throughout the whole or such part or parts of the State as he thinks fit. The Minister is also empowered to declare a closed season or an open season in respect of any of the fauna, and place restrictions on either the taking or disposal of fauna. Section 15 makes provision for the grant of licences to take fauna. Section 16 makes it an offence for any person to infringe the protection conferred by s 14(1) or (2) by taking fauna while protected otherwise than by the authority of a licence. Section 22 provides:
(1) The property in fauna, until lawfully taken is, by virtue of this Act, vested in the Crown.
(2) The provisions of the last preceding subsection do not entitle any person to compensation.
495. Section 23 provides that notwithstanding any other provisions of the Act a person who is a ‘person of Aboriginal descent’ according to the interpretation in s 4 of the Aboriginal Affairs Planning Authority Act 1972 (WA) may take fauna or flora upon Crown land or upon any other land not being a nature reserve or wildlife sanctuary, but where occupied, with the consent of the occupier of that land, sufficient only for food for himself and his family but not for sale. A ‘nature reserve’ means an area of land reserved by the Crown for the conservation of fauna or flora.
496. Included in the reserves in the claim area are Reserve 29541 — ‘Wildlife Sanctuary’, Reserve 31967 — ‘Conservation of Flora and Fauna’, Reserve 34585 — ‘Conservation of Flora and Fauna’ and Reserve 42155 — ‘Conservation of Flora and Fauna’. The latter reserve replaced Reserve 30866 and Reserve 31636 which had earlier been declared for conservation of fauna in the Goose Hill area. It is accepted that these reserves are nature reserves for the purpose of s 23 of the Wildlife Conservation Act.
497. The State contends that the foregoing provisions completely extinguished native title in the land contained in these reserves by depriving Aboriginal people of the right to gain sustenance from the land. The trial judge rejected this submission on the basis that the statutory provisions were regulatory in nature, were directed at the conservation of flora and fauna, not to the extinguishment of native title, and that particularly having regard to the recognition of an Aboriginal right to take fauna in s 23 did not evidence a clear and plain intention to extinguish native title.
498. The State has repeated its contention before this Court. The decision in Yanner has also been handed down in the meantime.
499. In Yanner, the Court considered the meaning of s 7(1) of the Fauna Conservation Act 1974 (Qld) which provided ‘All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority’. The majority held that s 7(1) vested in the Crown no more than the aggregate of the various rights of control by the executive that the legislation created. The ownership was less than the rights of full beneficial, or absolute ownership, and the vesting of ‘property’ in the Crown did not extinguish native title. The State seeks to distinguish Yanner on a number of grounds, including textual differences between the Fauna Conservation Act (Qld) and the Wildlife Conservation Act. It is true that there are a number of differences, but there are also a number of similarities. Of the several reasons identified by the majority to conclude that the ‘property’ conferred on the Crown by s 7(1) is not accurately to be described as full beneficial or absolute ownership, the following apply to the Wildlife Conservation Act. First, the definition of ‘fauna’ includes migratory birds and fauna that may move over State boundaries: cf Yanner at 265. Secondly, the subject matter dealt with in the Wildlife Conservation Act, with limited exceptions, is intended by the Act to remain outside the possession of and beyond disposition by humans. Thirdly, it seems that the provisions in the Western Australian legislation regarding the vesting of property in the Crown were introduced to support provisions in the legislation imposing a royalty on the skins of animals: see s 18, and Yanner at 266-267. These factors persuade us that the vesting of property in fauna in the Crown under s 22 of the Wildlife Conservation Act was for the purpose only of passing such powers of control and management and such proprietary interest as was necessary for the administration of the Act: see Attorney-General for Quebec v Attorney-General for Canada at 409, cited by Gummow J in Yanner at 285. As the vesting of such property in the Crown was not absolute, the State’s submission that the Act should be interpreted as a plain and clear intention to wholly extinguish native title fails.
500 The Fauna Conservation Act 1974 (Qld) did not contain a provision, like s 23 of the Wildlife Conservation Act 1950 (WA), which excepted from the general prohibition against taking fauna a right in Aboriginal people to enter upon land and to take fauna sufficient for sustenance purposes. That exemption is a further reason to hold that the Wildlife Conservation Act is not a law which generally extinguishes native title rights to take fauna. However, s 23 by its terms does not exempt Aboriginal people from the prohibition against taking fauna in a nature reserve or wildlife sanctuary. Within such a reserve or sanctuary the prohibition is complete subject only to the other provisions of the Act.
501. In 1967, s 12A was added to the Wildlife Conservation Act which empowered the Western Australia Wildlife Authority, with the approval of the Minister to classify or reclassify nature reserves or parts thereof as either prohibited areas, limited access areas, shooting or hunting areas, unlimited access areas, or such other classes of area as the Authority thought necessary for the purpose of giving effect to the objects of the Act. This section, together with s 15 which is not, by its terms, restricted to granting licences only in respect of areas outside nature reserves, indicated that there may be circumstances in which fauna may be taken within a nature reserve.
502. Section 12D required the Authority in respect of any land of which it is owner to cause to be prepared a detailed written scheme of the operations that the Authority proposes to undertake in relation to the area.
503. Under regulations promulgated in 1970 and amended in 1976, regulation 42(2) applies to the nature reserves relevant to this case. It provides:
(2)(a) A person shall not take any fauna, whether protected or not protected, on any nature reserve unless authorised to do so by the Conservator of Wildlife.
(b) The Conservator of Wildlife may not give such authority except —(i) on the recommendation of the Authority pursuant to s 12E of the Act or in accordance with the terms of an approved management scheme or operations or working plan prepared pursuant to s 12D of the Act;
(ii) in the case of a sanctuary or part thereof classified as a shooting or hunting area pursuant to the provisions of the Act, he may issue the appropriate licence to take game in accordance with these regulations; or
(iii) in the case of an animal declared to be a declared animal under the Agriculture and Related Resources Act 1976, he may issue the appropriate licence for its destruction subject to such conditions as he thinks fit.
504. Notwithstanding that the Act and regulations recognise circumstances where a licence to take fauna in a nature reserve may be granted, we consider the terms of s 23 so clearly circumscribe the rights of Aboriginal people that native title rights to take fauna in a nature reserve or wildlife sanctuary are clearly and plainly extinguished by the Act. Insofar as those rights were extinguished before the Racial Discrimination Act 1975 (the RDA), s 211 of the NTA (which preserves certain native title rights, including the right to hunt, where a licence would otherwise be required to do so) can have no application. However, where nature reserves or wildlife sanctuaries have been created after the RDA came into force, s 211 would by force of s 109 of The Constitution override the provisions of s 23 of the Wildlife Conservation Act, and the native title rights to take fauna would not be wholly extinguished. In our opinion the creation of the nature reserves and wildlife sanctuaries has an impact on native title holders in the area concerned that is much greater than the impact on other members of the Australian community who at most hold common law rights to hunt game, and is discriminatory.
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512. Some parts of the Crown land within the claimed area are, as noted earlier, subject to tenements granted under the Mining Act 1978 (WA) or the Petroleum Act 1967 (WA). The claimed area incorporates a small part of the most significant tenement, on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture. This area is within Reserve 31165 — ‘Government Requirements’ which we have discussed above.
513. The trial judge (at ALR 577-581) rejected submissions by the State, and by parties holding mining interests, that the grant of these interests wholly extinguished any native title rights or interests within those areas. The State and these parties now appeal from this part of his Honour’s decision. In order to understand the issues that arise on this aspect of the appeals, it will be necessary to recall the nature of the material native title claims before his Honour in this regard and his determination in this connection.
514. In their pre-trial particulars of the customs, laws, practices and usages which, they said, gave them their connection with the subject lands, the applicants claimed (1) that they ‘dug for and used stones, ochres and minerals on and from the land’; and (2) that they ‘shared, exchanged and/or traded resources derived on and from the land’.
515. There was evidence led at the trial that the applicants dug for ochre at several special sites within the claim area and used the ochre recovered for ceremonial purposes.
516. As required by s 225(b) of the NTA, paragraph 3 of his Honour’s determination stated, as has been noted that, subject to paragraph (5) thereof, the nature and extent of the native title rights and interests found included:
(a) a right to possess, occupy, use and enjoy the determination area;
(b) a right to make decisions about the use and enjoyment of the determination area;
(c) a right of access to the determination area;
(d) a right to control the access of others to the determination area;
(e) a right to use and enjoy resources of the determination area;
(f) a right to control the use and enjoyment of others of resources of the determination area;
(g) a right to trade in resources of the determination area;
(h) a right to receive a portion of any resources taken by others from the determination area; ...
517. The determination did not specify any particular meaning of the term ‘resources’ in this connection. Its primary (singular) dictionary meaning is ‘a source of supply, support or aid’ (The Macquarie Dictionary 3rd ed). The Oxford English Dictionary (2nd ed) offers the following primary meaning: ‘1. A means of supplying some want or deficiency; a stock or reserve upon which one can draw when necessary. Now usually plural...’ Webster’s New International Dictionary (2nd ed) primary meaning is: ‘1. A new or a reserve source of supply or support; a fresh or additional stock or store available at need; something in reserve or ready if needed’. Clearly, resources may be of a different kind, for instance, mineral resources. In the present context, that is, a claim based upon custom and tradition, it would seem that his Honour was referring to resources of a customary or traditional kind. Ochre would be picked up by this reference but, in our view, minerals that are mined by modern methods would not. We will return to this aspect when considering the statutory concept of minerals in Western Australia.
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525. The State and Argyle submitted that by virtue of s 117 of the Mining Act 1904 (WA) gold, silver and other precious metals, and all other minerals at or below the surface of any land in the State which was not alienated in fee simple from the Crown before 1 January 1891, are the property of the Crown. Similarly, the State contended that by s 9 of the Petroleum Act 1936 (WA) petroleum below the surface of all land in Western Australia is the property of the Crown. It is contended that by this legislation the Crown appropriated to itself an interest in those minerals, and in petroleum, which amounts to full beneficial ownership, and that accordingly any native title that may have existed in relation to minerals or petroleum has been extinguished.
526. In our opinion the contentions of the State and Argyle are sound and should be accepted.
527. The arguments of the State and Argyle accord with the reasoning of Drummond J in Wik and with Olney J in Yarmirr that the Crown intended, in this regard, to reserve to itself the full beneficial ownership of all minerals, both royal and base. We agree with their reasoning which, we think, applies to the counterpart legislation in Western Australia. However, before going to that legislation, consideration should be given to the possible application of the recent decision of the High Court in Yanner in the present connection.
528. In Yanner, in considering the effect of the vesting of property in the Crown under the fauna legislation, Gleeson CJ, Gaudron, Kirby and Hayne JJ said (at 266-267):
Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland. A ‘royalty’ is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v FCT: ‘... the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken’. That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia.
529. Their Honours concluded (at 267), in the light of these considerations, that:
... the statutory vesting of ‘property’ in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.
530. The citation is from Toomer v Witsell [1948] USSC 105; 334 US 385 (1948) at 402 per Vinson CJ. Neither Toomer, nor Hughes v Oklahoma [1979] USSC 74; 441 US 322 (1979) where Toomer was cited (per Brennan J at 333-334), was concerned with minerals. Each dealt with the ownership of wild animals. And the passage from Yanner (at 267) which we have emphasised above shows, in our opinion, that a distinction is to be drawn between (a) the notional or artificial vesting in the state of property in a wild animal for the purposes of creating a situation which resembles one where, traditionally, a royalty is payable; and (b) the actual vesting which occurs in the case of minerals where a royalty is, in truth, payable.
531. Section 3 of the Western Australia Constitution Act 1890 (Imp) provided that:
The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony.
In exercise of that power, the legislature enacted the Mining Act 1904 (WA) in which s 117 provided:
SUBJECT to the provisions of this Act and the regulations —
(1) Gold, silver and other precious metals on or below the surface of all land in Western Australia, whether alienated from the Crown, and if alienated, whensoever alienated, are the property of the Crown.
(2) All other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before the first day of January, One thousand eight hundred and ninety-nine, are the property of the Crown.
532. A like provision was made by s 9 of the Petroleum Act 1936 (WA) as follows:
Notwithstanding anything to the contrary contained in any Act, or in any grant, lease or other instrument of title, whether made or issued before or after the commencement of this Act, all petroleum on or below the surface of all land within this State, whether alienated in fee simple or not so alienated from the Crown is and shall be deemed always to have been the property of the Crown.
533. As has been mentioned, the present determination did not define the term ‘resources’. However, in describing aspects of the claimants’ connection with the area, the trial judge had said (at ALR 538):
There was evidence of the contemporary use of natural resources found in and around the claim area for ceremonies and tool-making, in particular, ochre for the former. Consistent with the ‘primary’ evidence, the archaeological evidence suggested that sources of ochre within Miriuwung and Gajerrong country were limited and that all locations of ochre were associated with sacred sites ...
534. This is a specific indication that the reference in the determination to ‘resources’ was intended to pick up ochre. We agree with his Honour’s conclusion that this aspect of the applicants’ traditional connection with the area claimed was established on the evidence. In our view it should be regarded as one of the applicants’ native title rights, unless ochre falls within the statutory concept of minerals.
535. For the purposes of the Mining Act 1904 ‘minerals’ were defined to mean ‘All minerals other than gold, and all precious stones’: s 3. By s 115 of the 1904 Act, this general definition did not apply to Part VI (which included s 117). Section 115 provided that in Part VI the term ‘minerals’ meant:
Antimony, bismuth, copper, iron, lead, manganese, mercury, silver, and tin, and the ores and earths of these metals, and gems and precious stones. The term also includes coal and oil, and any mineral which the Governor may from time to time by proclamation bring under the provisions of this Part of this Act.
536. In our opinion, these definitions were not intended to pick up ochre, an earthy substance used by Aboriginal people for traditional ceremonial purposes.
537. By s 8(1) of the Mining Act 1978, unless the contrary intention appears:
‘minerals’ includes all naturally occurring substances, not being soil or a substance the recovery of which is governed by the Petroleum Act 1967 or the Petroleum (Submerged Lands) Act 1982, obtained or obtainable from any land by mining operations carried out on or under the surface of the land, including evaporites, limestone, rock, gravel, shale (whether or not oil shale) sand and clay except that where —
(a) limestone, rock or gravel;
(b) shale, other than oil shale;
(c) sand, other than mineral sands, silica sand or garnet sand; or
(d) clay, other than kaolin, bentonite, attapulgite, or montmorillonite,
occurs on private land, that limestone, rock, gravel, shale, sand or clay shall not be taken to be minerals; ...
538. Although this definition is more specific than in the case of the 1904 Act, it again appears that ochre used for traditional ceremonial purposes, does not fall within this statutory definition either.
539. Petroleum was defined in s 5 of the Petroleum Act 1967 (WA) as follows:
‘petroleum’ means —
(a) any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state;
(b) any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state; or
(c) any naturally occurring mixture of one or more hydrocarbons, whether in a gaseous, liquid or solid state, and one or more of the following, that is to say, hydrogen sulphide, nitrogen, helium and carbon dioxide,
and includes any petroleum as defined by paragraph (a), (b) or (c) of this definition that has been returned to a natural reservoir, but excludes oil shale.
540. Clearly, ochre was not comprehended by this definition.
541. As we have said, in our view, essentially for the reasons given by Drummond J in Wik and by Olney J in Yarmirr, by virtue of the vesting provisions of s 3 of the Western Australia Constitution Act and by virtue of the proprietary provisions of s 117 of the 1904 Act, any native title rights to the minerals there specified within the State were wholly extinguished. In our opinion, those provisions were intended to reserve to the legislature and the Crown the full beneficial ownership of all the minerals specified. Similarly, we consider that if any native title right or interest existed in relation to petroleum within the State in the determination area that right or interest was wholly extinguished by virtue of s 3 of the Western Australia Constitution Act and s 9 of the Petroleum Act 1936. However, in this case there is no evidence of any traditional Aboriginal law, custom or use relating to petroleum either in the State or in the Territory and as a matter of fact any claim in relation to the possession, use or enjoyment of petroleum (if there is any in the determination area) is not established.
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554. For the general reasons we have given in respect of the extinguishment issues that arise in relation to the Ord Project, we are of the opinion that in respect of the area covered by the Argyle Diamond Project also, all native title has been extinguished. Again, we cannot accept the application of the Canadian ‘adverse dominion’ concept here. It seems to us that, as in the case of the Ord Project, the very size of the infrastructure of such a major project as the Argyle Venture, when coupled with the nature and intensity of the large range of activities contemplated in its execution, all indicate the existence of a situation of complete inconsistency. In our view, it is inevitable that any native title rights must totally yield to the lessee’s rights (and obligations) under the Agreement, the Ratifying Act, the Mining Act 1978 and the mining lease itself. As in the case of the grant of a fee simple, ‘[i]t simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title’ (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo at 126). Their Honours there went on (at 126-127) to cite a passage from the reasoning in Mabo [No 2] giving as an example of inconsistency which involved extinguishment, the grant of a lease conferring exclusive possession rights. In particular, reference was made to the observations in Mabo [No 2] by Brennan J (at 69) that ‘native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg authorities to prospect for minerals)’. (Emphasis added). We are not here concerned with authorities to prospect or similar ‘lesser’ interests. Argyle held a long term lease (ie one with a term of twenty-one years with a right to successive renewals) which conferred rights of exclusive possession for mining and incidental purposes.
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682. I also adopt the summary of the findings on native title issues contained in the judgment of Beaumont and von Doussa JJ in these appeals (pars 121-169) and the summary of argument on the appeals relating to native title issues (pars 170-221). I agree with the reasoning and conclusions of Beaumont and von Doussa JJ on the native title issues in pars 222-280, save for the reference to extinguishment in the first sentence of par 279.
683. As I see these appeals the question of central importance is the proper approach to the issue of extinguishment. It is on this issue that I differ from Beaumont and von Doussa JJ. Many of the questions concerning extinguishment are raised for Australian law for the first time by these proceedings. Only two decisions of the High Court have been decided on the issue of extinguishment. In Fejo v Northern Territory of Australia (Fejo) [1998] HCA 58; (1998) 195 CLR 96 the Court determined that the grant of a fee simple estate by the Crown extinguished native title, and in Yanner v Eaton (Yanner) [1999] HCA 53; (1999) 166 ALR 258 a majority of the Court determined that legislation regulating the keeping and taking of estuarine crocodiles did not extinguish native title. There is discussion of the question of extinguishment in Mabo v The State of Queensland [No 2] (Mabo [No 2]) [1992] HCA 23; (1992) 175 CLR 1 and The Wik Peoples v The State of Queensland (Wik) (1996) 187 CLR 1 which, although not determinative of those cases, is most important in the consideration of the present questions.
684. In my view the following general propositions apply to the resolution of questions concerning extinguishment of native title:
(1) Native title as recognised by the common law is the title ascertained by reference to the traditional laws and customs of the aboriginal people. Native title reflects the connection of the aboriginal people with the land and is ordinarily a communal title and a right to the land itself.
(2) The concept of extinguishment of native title involves the consequence that native title is permanently and totally abrogated for the purposes of the common law.
(3) Native title may be extinguished directly or implicitly by the Crown by a law or executive act taken pursuant to such a law.
(4) Native title will only be extinguished if the Crown has displayed a clear and plain intention to extinguish native title. That is to say, the law or act must demonstrate that the Crown intended thereby to permanently and totally abrogate the right of the aboriginal people to the land itself.
(5) The holders of native title have rights and interests which flow from the right to the land. Thus, for instance, rights to undertake activities on the land derive from the right to the land. The right to the land is not abrogated by the abrogation of one or more of the rights and interests which derive from the holding of native title.
(6) The test for determining whether the law or act has extinguished native title is to ask whether there is a requisite inconsistency between the rights and interests created by the law or act and native title.
(7) There are degrees of inconsistency between rights and interests created by a law or act and native title. It is only where the inconsistency is of such a high degree that the necessary intention to extinguish native title is revealed. Such inconsistency may usefully be described as fundamental, total or absolute inconsistency. It must reflect the intention of the Crown to remove all connection of the aboriginal people from the land in question.
(8) Where there is inconsistency between the rights and interests created by the law or act and native title but the degree of inconsistency is not sufficient to extinguish native title, native title will continue. However, the rights created by the law or act will take priority over native title. The exercise of rights dependent upon the holding of native title will be curtailed to the extent necessary to allow the full enjoyment of the rights and interests created by the law or act. In this sense native title will be impaired by the creation of the inconsistent rights.
(9) Where the inconsistency is limited in duration such that the term of the native title is greater than the duration of the rights created by the law or act, the intention of the Crown thereby revealed is an intention to suspend the enjoyment of the rights dependent upon the holding of native title until the expiry of the term of the rights created by the law or act. Where the Crown makes an unqualified grant in fee simple the duration of the rights created by the grant is limitless. There is therefore a necessary absolute temporal inconsistency between the rights created by the law or act and native title, and native title is extinguished.
(10) In some cases the law or act which gives rise to rights and interests will not create a total inconsistency with native title immediately. But where the subsequent use of land pursuant to the rights and interests created by the law or act are totally inconsistent with native title in the sense described above, native title will be extinguished by that use of the land.
...
844. Lee J set out his approach to questions of extinguishment at ALR 507-510 as follows:
A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.
Native title at common law is a communal ‘right to land’ arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere ‘bundle of rights’. (See: Delgamuukw per Lamer CJ at 240-241.) The right of occupation that is native title is an interest in land. (See: Mabo (No 2) per Brennan J at 51.) There is no concept at common law of ‘partial extinguishment’ of native title by the several ‘extinguishment’ of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, ‘native title rights’ have been ‘extinguished’.
Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished. As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422):
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.
Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by ‘adverse dominion’. (See: United States v Santa Fe Pacific Railroad Co at 347.)
In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorized by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof. (See also: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)
A similar principle was set out in Mabo (No 2) by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work. The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of ‘adverse dominion’ described above:
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 (Gaudron J at 166).
It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (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 (Gummow J at 203).
Of course, for the exercise of rights granted by the Crown to third parties to be seen to be inconsistent with the continuation of native title, it would be necessary to show that the rights granted reflected an intention by the Crown that exercise of the rights remove all connection of an Aboriginal community with land under native title. It is the concept of extinguishment at common law which s 227 of the Act attempts to reflect when it states that an act ‘affects’ native title if it ‘extinguishes’ the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The drafting of s 227 appears to be based on the following statement of Brennan J in Mabo (No 2) (at 69-70):
Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency...
Where the Crown had validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. (It was made clear by his Honour in the remainder of that paragraph that extinguishment was not effected until the land was used for the purpose for which it was appropriated.)
In those remarks his Honour, by way of summary, was re-stating a proposition set out earlier in his reasons, namely, that to extinguish native title there must be a clear and plain intention of the Crown to do so whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.
At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words ‘extinguish to the extent of the inconsistency’ refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be ‘extinguished’.
It is not impairment or regulation of the aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown.
In Wik the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.
The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue.
Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the ‘revival’ of extinguished native title can arise. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740.) If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.)
Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.
Coexistence of competing interests in land, whether recognized at common law or derived from statute, is accommodated under common law and in Australia land law. (M Tehan, ‘Co-existence of Interests in land: a dominant feature of the common law’, Land Rights, Laws: Issues of Native Title (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997) at 4.) It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of ‘extinguishment’ or ‘partial extinguishment’ be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised.
845. The reasoning set out in this passage corresponds with the approach to extinguishment which I have accepted in this judgment. Thus I agree with his Honour’s formulation.
846. Most of the appellants’ arguments against Lee J’s approach to extinguishment have been dealt with in the discussion to this point. It is now necessary only to address three specific arguments concerning Lee J’s approach to the question of extinguishment as expressed in the following passage at ALR 508:
In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof ...
847. The appellants contended that extinguishment by the creation of inconsistent rights or interests occurred without reference to the intention of Parliament but as a result solely of the inconsistency between the rights or interests created and native title. They contended that the first condition referred to in the extracted passage wrongly required that the expression of a clear and plain intention was necessary to extinguish native title in such circumstances.
848. As explained at 697-710 and particularly at 706-708 of these reasons the requirement for the expression of a clear and plain intention to extinguish native title always applies. Such intention is manifested in the case of the creation of rights or interests in favour of third parties by inconsistency between those rights or interests and native title. It is clear that Lee J approached the matter in this way. Immediately before the passage under consideration Lee J said at ALR 508 lines 28-31 ‘extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title’. Shortly after reference to the first condition Lee J referred to the third condition for extinguishment, which was expressed to be subject to a proviso which stated ‘unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal grant’ and which thereby acknowledged that it is the creation of an inconsistent right which ordinarily leads to extinguishment.
849. The second condition for extinguishment referred to by Lee J at ALR 508 by reference to the judgment of Lambert JA in Delgamuukw was: ‘that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion ...’ [emphasis in original]. The State denied the requirement of permanency. The necessity that inconsistent rights created by the Crown be permanently inconsistent with native title rights is discussed in these reasons at 689. Wherever there is a temporal inconsistency, that is, where the native title endures beyond the term of the rights or interests granted to a third party the law recognises an intention by the Crown that native title will be suspended for the duration of the term of the rights granted. Ordinarily, and in this case, under traditional aboriginal law native title is a permanent right to land. In those circumstances it is correct to say that only the grant of rights or interests which are permanently inconsistent with native title will have the effect of extinguishing native title.
850. The State contended that Lee J erred in the approach he took to the circumstances in which the use of land would lead to extinguishment. The third condition for extinguishment in the case of the grant of inconsistent rights by the Crown was described by Lee J, again by reference to the judgment of Lambert JA in Delgamuukw, as follows at ALR 508:
[A]nd third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof.
851. The State contended that this third requirement meant and was interpreted by Lee J to mean that actual use permanently inconsistent with native title had to be shown in each case in order to establish extinguishment. The argument fails at the initial stage. The passage does not require actual use to be shown in order to establish extinguishment. Neither does Lee J require actual use permanently inconsistent with native title to be shown as a precondition for extinguishment. The third consideration concerned an additional circumstance in which extinguishment would occur. The introductory words refer to the usual situation where the grant itself created inconsistent rights or interests and the passage goes on to describe a situation in which extinguishment would occur even though that ordinary situation did not exist. Lee J clearly recognised that there could be extinguishment arising from the grant itself. Only a paragraph before the reference now under consideration, Lee J at ALR 508 referred to the following passage in the judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case at 422:
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.
852. Thus, Lee J held that actual use of land inconsistently with native title would extinguish native title where the grant of the right permitting such use did not itself immediately extinguish native title. He correctly said at ALR 508-509 that this approach was consistent with the following remarks of Gaudron J in Wik at 166:
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.
and Gummow J in Wik at 203:
It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (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.
853. If there is any doubt about what Lee J meant, that doubt is dispelled by reference to his Honour’s source, namely, the judgment of Lambert JA in Delgamuukw. Lambert JA recognised that native title could be extinguished by legislation or acts taken pursuant to legislation without the doing of any act on the land itself which was inconsistent with native title. In setting out the principles of extinguishment he was concerned to emphasise the overriding need for the legislature to express a clear and plain intention to extinguish native title before that result ensued. Indeed he rejected the approach of Judson J in Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 on the basis that the exercise of dominion by the State over land without the expression of clear and plain intention by the legislature to extinguish native could not have an extinguishing effect. In his view the touchstone in every case was the expression of legislative intent to extinguish. He explained where adverse dominion fitted into his classification at 668 as follows:
Express (or explicit) extinguishment is extinguishment brought about by the sovereign power acting legislatively in an enactment which provides on its face and in its terms for extinguishment, either on the coming into force of the enactment or on the happening of an event described in the enactment.
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.
In the case of implicit extinguishment the extinguishment brought about by the clear and plain intention demonstrated by the necessary implication may be brought about by the enactment of the legislation itself, because the necessity for extinguishment may occur at that point (which I will call implied extinguishment), or it may be brought about by the administrative or executive actions authorized by the legislation, because the necessity for extinguishment may occur only when the administrative or executive action occurs (which, because this term has been used already in the cases and not because it is perfectly descriptive, I will call extinguishment by adverse dominion).
854. His Honour’s emphasis on the necessity for the expression of legislative intent to extinguish is seen in his dealing with the question of the creation of rights and interests inconsistent with the rights and interests dependent upon the existence of native title. At 670 he said:
In short, I do not consider that the sovereign power’s clear and plain intention to extinguish aboriginal title and rights can be demonstrated in any other way than by legislation passed by the sovereign in Parliament. The fact that there is an inconsistency between the exercise of powers granted by legislation and the exercise of aboriginal rights does not extinguish the aboriginal rights to the extent of the inconsistency, nor does it necessarily suspend them, unless it is clear and plain from the legislation itself that those consequences had been made the subject of clear, plain and considered legislative intention.
855. This discussion was the background to the statement of the three conditions necessary for extinguishment by adverse dominion referred to by Lee J. It makes clear that extinguishment of native title flowing from the use of land was a further method of extinguishment arising when extinguishment did not flow from the terms of a statute or a grant made under such statute.
856. In Mabo [No 2] Brennan J said at 49-50 that a Crown grant which created an interest inconsistent with native title necessarily extinguished native title. Lambert JA at 671 expressed reservation about this passage and Beaumont and von Doussa JJ in these appeals refer to the reservation as an indication of a divergence of views between Lambert JA and Brennan J. Lambert JA at 672 explained his reservation as follows:
I do not think that the effect of a grant should determine the test of legislative intention, unless it is clear and plain from that effect that the intention to extinguish is clear and plain.
857. In my view the difference between the approaches is one of emphasis. Lambert JA stressed that in all cases of extinguishment clear and plain intention must be shown, while Brennan J focussed on the specific case where inconsistent rights were created. I do not read Brennan J as suggesting that an intention to extinguish native title is not necessary in the case of the grant of inconsistent rights. He was concerned to point out that actual intention need not be shown. Rather, the intention was to be gathered from the nature of the grant.
858. The manner in which Lee J dealt with pastoral leases was given as an example by the State of his Honour’s erroneous approach of requiring inconsistent use to be shown in order to establish extinguishment. However, close attention to his Honour’s reasons does not substantiate this criticism. The starting point for his Honour was to enquire whether the Crown had displayed an intention to extinguish native title. In the case of pastoral leases in the State of Western Australia his Honour noted the existence of the limitations on the possessory rights conferred on the lessee and the reservations in favour of aboriginal people. He then observed that there was no material difference between the pastoral leases in Wik and the pastoral leases in the present case. He then said at ALR 558:
The conclusion must follow that in granting a pastoral lease the Crown did not act to extinguish native title.
859. Only after this conclusion was reached did his Honour consider the separate and further question whether the use of the land subject to pastoral leases was inconsistent with native title. Having examined the uses of the land and having concluded that none were inconsistent with native title, his Honour did not need to consider the question of the validity of the pastoral leases. In explaining this conclusion, his Honour clearly indicated that the issue of use of the land was an alternative basis, not an additional factor in every case for finding that extinguishment had occurred. He said at ALR 559-560:
In light of the foregoing conclusion that neither the grant of a pastoral lease or use of the land pursuant to the lease reflected a Crown intention to extinguish native title, it is unnecessary to consider further submissions by the first applicants that the State had not proved that valid leases were issued under the Land Regulations 1882 (WA) and the Land Regulations 1887 (WA) in respect of pastoral leases issued prior to 1898.
860. The State contended that his Honour erred in the same respect in his approach to the other interests in land considered by him. However, the approach taken in each instance mirrored the approach taken in respect of pastoral leases, and was therefore correct.
861. For the reasons elaborated earlier in this judgment, in my view Lee J formulated the correct test applicable to the determination of the questions of extinguishment in the present case. I also agree with the detailed application of this test undertaken by his Honour between ALR 552 and 638 in relation to the many interests considered by him. Further, I agree with the reasoning of his Honour on the subsidiary issues dealt with as part of the consideration of the extinguishment issue. In the light of my agreement with Lee J it is unnecessary for me to repeat the detailed reasoning in respect of each right or interest in land considered by him.
862. I agree with the judgment of Beaumont and von Doussa JJ (pars 113-120) on this question.
...
Counsel for the appellants and cross respondents in WG 6293 and the 2nd respondent in W 6020:
Mr C J L Pullin QC with Mr K M Pettit
Solicitors for the appellants and cross respondents in WG 6293 and the 2nd respondent in W 6020:
Crown Solicitor’s Office
Counsel for the 1st respondents in WG 6293, WG 6292,WG 6294, WG 6295 and WG 6296:
Mr M L Barker QC with Mr R H Bartlett and Ms A M Sheehan
Solicitors for the 1st respondents in WG 6293, WG 6292,WG 6294, WG 6295 and WG 6296:
Aboriginal Legal Service of Western Australia
Counsel for the 2nd respondents in WG 6293, WG 6292,WG 6294, WG 6295, WG 6296 and appellants in W 6020:
Mr J Basten QC with Mr K R Howie
Agents for the 2nd respondents in WG 6293, WG 6292,WG 6294, WG 6295, WG 6296 and appellants in W 6020:
Northern Land Council
Counsel for the 3rd respondents and cross appellants in WG 6293 and the 3rd respondents in WG 6295 and WG 6296:
Mr G M G McIntyre
Agents for the 3rd respondents and cross appellants in WG 6293 and the 3rd respondents in WG 6295 and WG 6296:
Kimberley Land Council
Counsel for the intervener in WG 6293 and WG 6296:
Mr J D Allanson with Dr M A Perry
Solicitors for the intervener in WG 6293 and WG 6296:
Australian Government Solicitor
Counsel for the appellants in WG 6292:
Mr R A Conti QC with Mr M T McKenna
Solicitors for the appellants in WG 6292:
Hunt & Humphry
Counsel for the appellants in WG 6294:
Mr D W McLeod with Mr P L Wittkuhn
Solicitors for the appellants in WG 6294:
McLeod & Co
Counsel for the appellants in WG 6295:
Mr H W Fraser QC with Mr K R Jagger
Solicitors for the appellants in WG 6295:
Freehill Hollingdale & Page
Counsel for the appellants in WG 6296 and the 1st respondents in W 6020:
Mr T I Pauling QC with Ms R J Webb
Solicitors for the appellants in WG 6296 and the 1st respondents in W 6020:
Solicitor for the Northern Territory
[1] Also the Balangarra peoples in respect of one portion of the claim area.
[2] The full text of this judgment is available at <http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/191.html> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/23.html