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Wik Peoples and Thayorre People v. Queensland & others
(1996) 187 CLR 1
71 ALJR 173
141 ALR 129

(Judgment by: Brennan CJ)

Wik Peoples, Thayorre Peoples v. State of Queensland, Commonwealth of Australia, Aboriginal & Islander Affairs Corporation, Comalco Aluminium LTD, Aluminium Pechiney Holdings PTY LTD, Council of the Shire of Aurukun, Napranum Aboriginal Council, Pormparaaw Aboriginal Council, Eddie Holroyd, Cameron Clive & Doreen Ruth Quartermaine, Merluna Cattle Station PTY LTD, John Bock, Aboriginal & Torres Strait Islander Commission, Reefdeen PTY LTD, Richard John & John Richard Price, Richard Matthew Price, Geoffrey John Guest & Robert John Fraser, Myles Kenneth & Debra Ann Gostelow, Thayorre People, Wik People

Court:

HIGH COURT OF AUSTRALIA

Judges:
Brennan CJ Dawson
Toohey
Gaudron
McHugh
Gummow
Kirby JJ

Subject References:
Aborigines
Native Title-Grant of pastoral leases pursuant to Land Act 1910 (Q) and Land Act 1962 (Q)
History of pastoral tenures and disposal of Crown land considered
Whether leases conferred rights to exclusive possession
Application of principles of statutory construction
Whether legislative intention to confer possession to exclusion of holders of native title rights
Rights and obligations of pastoral lessees determined by reference to the language of the statute authorising the grant and terms of the grant
Grant for "pastoral purposes only"
Whether grant of pastoral lease necessarily extinguished all incidents of Aboriginal title
Whether clear and plain intention to extinguish exists
Inconsistency of native title rights and rights conferred on pastoral lessees
Whether grant or exercise of the rights may operate to extinguish
Whether reversion to the Crown
Whether reversion inconsistent with continued existence of native title rights
Effect of non-entry into possession of lease
Native title - State legislation authorising making of agreement
Agreement to have statutory force
Agreement providing for the grant of mining leases
Statutory construction
Whether challenge to validity of agreement contrary to plain intention of the legislation
Whether relief available for alleged breaches in execution of agreement
"authorise"

Other References:
Land Act 1910 (Q).
Land Act 1962 (Q).
Aurukun Associates Agreement Act 1975 (Q).
Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q).

Hearing date: 11-13 JUNE 1996
Judgment date: 23 DECEMBER 1996

CANBERRA

Judgment by:
Brennan CJ

1. Introduction

In proceedings brought in the Federal Court, the Wik Peoples and the Thayorre People claim to be the holders of native title over certain areas of land in Queensland. Those areas include or consist of land known as the Holroyd River Holding and the Mitchellton Pastoral Leases. In 1915 and 1919, pastoral leases had been granted by the Crown to non-Aboriginal lessees over the Mitchellton Pastoral Leases pursuant to The Land Act 1910 (Q) ("the 1910 Act"). In 1945, under the same Act a pastoral lease had been granted by the Crown to non-Aboriginal lessees over the Holroyd River Holding. In 1973, another pastoral lease had been granted over the same area under The Land Act 1962-1974 (Q) ("the 1962 Act") ^[F1] . The Wik Peoples claim that their native title was not extinguished by the granting of pastoral leases but constitutes "a valid and enforceable interest in the land co-existing with the interests of the lessees under the Pastoral Leases and exercisable at all times during the continuation of the Pastoral Leases". The Thayorre People, who were joined as respondents to the Wik Peoples' application filed a cross-claim seeking, inter alia, declarations that:

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

...

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

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

Without deciding whether the claimants are the holders of native title in respect of the land that had been leased, Drummond J determined as a preliminary issue ^[F2] the effect of the grant of the respective pastoral leases upon any native title then subsisting over the land the subject of the grant of the pastoral leases. His Honour's decision on this issue was expressed in the answers to two questions ^[F3] :

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

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

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

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

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

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

Question 1B was answered as follows:

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

as to question 1B(b): Yes;

as to question 1B(c): Yes;

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

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

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

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

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

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

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

Question 1C was answered as follows:

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

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

as to question 1C(c): Yes;

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

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

"Question 4

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

Question 4 is answered: No.

Question 5

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

Question 5 is answered: No."

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

2. The content of the pastoral leases

The first Mitchellton lease, issued under the 1910 Act in 1915, was forfeited for non-payment of rent in 1918. The second lease, issued under the 1910 Act in 1919, was surrendered in 1921. Possession was not taken by the lessees under either lease. Since 12 January 1922 the land has been reserved for the benefit of Aborigines or held for and on their behalf. The first Holroyd lease, issued under the 1910 Act in 1945, was surrendered in 1973. The second lease, issued under the 1962 Act, is for a term of 30 years from 1 January 1974. None of the leases contained an express reservation in favour of Aboriginal people. The power to issue leases under the 1910 Act was vested in the Governor in Council ^[F4] by s 6:

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

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

(3) The rights of the Crown in gold and other minerals, and the reservations with respect to the same which are to be contained in all Crown grants and leases, are declared and prescribed in'The Mining on Private Land Act of1909.'

(4) In addition to any reservation authorised or prescribed by this Act or any other Act in any grant or lease made after the commencement of this Act, there may be reserved for any public purposes, whether specified or not, a part of the land comprised therein of an area to be specified, but without specifying the part of the land so reserved. And it is hereby declared that all such reservations in all grants and leases made before the commencement of this Act are valid to all intents and purposes."

Similar provisions are contained in s 6 of the 1962 Act, except that the sub-section dealing with the Crown's mineral rights is extended to cover the rights in petroleum declared and prescribed in The Petroleum Acts 1923to1958 (Q). "Crown land" was defined by s 4 of the 1910 Act as follows:

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

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

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

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

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

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

In consideration of the premises and the rent, the Crown did "DEMISE AND LEASE unto the said [lessee] (hereinafter with their Successors in title designated 'the Lessee') and their lawful assigns, ALL THAT portion of Land situated in [name of district] ... to hold unto the Lessee and their lawful assigns, for pastoral purposes only, for and during the term of [number of years] ... subject to the conditions and provisoes in Part III, Division I of the said Act, and to all other rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, reservations, and provisoes referred to ... in ... the said Act, and 'The Mining on Private Land Act of 1909'". In addition to the reservations in The Mining on Private Land Act, the second Mitchellton lease included reservations under The Petroleum Act of 1915. Both Holroyd leases included reservations under The Petroleum Act of1923 (as amended) and the second Holroyd lease included reservations under the Mining Act 1968-1974.

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

Each lease contained reservations with respect to the Crown's mineral rights and a reservation ^[F5] in these terms:

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

The leases under the 1910 Act were issued "pursuant to Part III, Division I" of that Act and were expressed to be subject to "the conditions and provisoes of Part III, Division I". That Division provided for the Minister by notification to declare any Crown land to be open for pastoral lease and to specify "the areas to be leased, the term of the lease ... and the rent per square mile during the term" ^[F6] . Applications for a pastoral lease were lodged with a land agent and, when issued to a successful applicant, commenced "on the quarter day next ensuing after the date of acceptance of his application" ^[F7] . The term of a lease was divided into 10-year periods, the rent for periods after the first being fixed by the Land Court ^[F8] . Every lease was subject to the condition that the "lessee shall, during the term, pay an annual rent at the rate for the time being prescribed" ^[F9] .

The submissions on behalf of the Wik Peoples (the Wik submission) and the Thayorre People (the Thayorre submission) are directed to establishing two basic points: that the pastoral lessees did not acquire a right to exclusive possession of the land the subject of the leases and, even if they did, it is not the right to exclusive possession that extinguished native title but only the exercise of that right to exclude the holders of native title. These basic points were supplemented by two subsidiary arguments, namely, that native title was not extinguished but merely suspended during the term of a lease and that the Crown held any reversion as a fiduciary for the holders of native title. In addition submissions were made specific to the claims made against the mining companies.

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

3. The rights of a lessee under the pastoral leases

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

The quoted phrase is taken from my judgment in Mabo v. Queensland [No 2] ^[F10] (hereafter Mabo [No 2]) where it was used in reference to a possible construction of a statutory provision ^[F11] which made it an offence for a person to be found in occupation of Crown land, not being a lessee or licensee. To construe such a provision as applying to Aboriginal inhabitants would have left them practically without anywhere in the country to live and, on that account, would have been "truly barbarian". The term "person" in the statute was read down so as not to include traditional Aboriginal occupiers. The question that arises as to the operation of a pastoral lease is different. That question is whether the pastoral lessee acquires a right to exclusive possession of the area of land the subject of the lease. If the pastoral lessee acquires a right to exclusive possession, it does not follow that the Aboriginal inhabitants are necessarily turned into trespassers. It would not be an offence to be found in occupation of land subject to a pastoral lease. A pastoral lessee, who took no steps during the term of the lease to exclude known Aboriginal inhabitants from the leased land, must be taken to have consented to their presence on the land. But if, in exercise of a right to exclusive possession, the Aboriginal inhabitants were excluded by the lessee, the exclusion would be an example of events referred to in Mabo [No 2] ^[F12] : "Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement" ^[F13] . That was the consequence of the exercise of the Crown's power to confer on the colonial settlers an authority or purported authority to exclude Aboriginal inhabitants from the parcels of land granted to the settlers by the Crown. But the adversely discriminatory treatment suffered by the holders of native title is not now in issue; what is in issue is the legal effect of the Crown's grant of pastoral leases over land that was or might have been the subject of native title.

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

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

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

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

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

These sections are drafted without much recognition of the different interests of the Crown, Crown lessees and licensees and purchasers, but the purpose of these provisions is clear enough. It is not to eject a person in possession, for the person to be removed might not have been in possession but merely in "unlawful occupation". The purpose is to procure the removal of a person who has no right to remain on the land. The taking of possession under the warrant was the step which restored to the applicant party the full enjoyment of the party's interest that had been impaired by the presence of the person removed. Absent this statutory procedure, a pastoral lessee could secure the ejectment of a person having no right to be or to remain on the land only by bringing civil proceedings in the Supreme Court ^[F14] . The Wik submission says that "the like proceedings" to be had on an application by a person in one of the categories mentioned in the last paragraph of s 204 would lead to the issue of a warrant "to take possession ... on behalf of the Crown". Therefore, so the argument runs, the Crown must be the party in possession. That would be a bizarre construction.

The section assumes that a person may be in possession under colour of a forfeited lease or licence. If a forfeited lease or licence can create a colour of possession, an existing pastoral lease must be taken - for the purpose of the section at least - to confer a right to possession. And, if a lessee who applies for a warrant is in possession, it could not have been intended that the issue of a warrant should result in the lessee's dispossession. The "like proceedings" must mean that the warrant of removal issues in favour of the applicant for the warrant who has demonstrated his title to relief in the same way as it issues in favour of the Crown when an application is made by or on behalf of the Crown. A provision corresponding with the last paragraph of s 204 was introduced in a statutory predecessor of s 204 in 1869 ^[F15] , perhaps to avoid the necessity for litigation between adjoining landholders in the Supreme Court as had occurred in McGavin v. McMasterin the year before. There is no substance in the submission based on s 204.

Next, both the Wik and the Thayorre submissions placed some reliance on the reservation in the lease of the Crown's right to nominate any person to enter upon the land for any purpose and at any time to show that the pastoral lessee did not acquire a right to exclusive possession. That reservation, together with certain statutory provisions ^[F16] authorising access to land the subject of a pastoral lease and the restriction placed by the leases (other than the second Holroyd lease) on the use of the land "for pastoral purposes only", are said to negative a legislative intention to confer a right to exclusive possession on the pastoral lessees. The reservation, far from implying that the lease did not confer a right to exclusive possession, implies that, without the reservation, the lessee would have been entitled to refuse entry to any person ^[F17] . The reservation was not a reservation from the grant of a third party interest in the land but a reservation to the Governor in Council of a power to authorise a third party to enter. Similarly, the statutory provisions conferred authority to enter on leased land when such entry would otherwise have been in breach of the rights of the lessee. And the restriction on use of the land was consistent with a lessee's right to exclusive possession.

In Goldsworthy Mining Ltd v. Federal Commissioner of Taxation ^[F18] , a dredging lease issued under the Land Act 1933-1965 (WA) over a portion of the seabed contained several reservations which restricted the use to which the demised premises could be put by the lessees, permitted the Crown and others to use any part of the demised premises for navigation, and imposed on the lessees obligations of an important kind (including consenting to the grant of easements or rights over the demised premises). Mason J held that those provisions were consistent with the lessees' right to exclusive possession. "Indeed", his Honour said ^[F19] , "the provisions assume the existence of that right". And, in Glenwood Lumber Company v. Phillips ^[F20] , the Privy Council said:

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

If, as a matter of construction, it is right to hold that the right to exclusive possession was conferred on a pastoral lessee, the statutory provisions that authorised entry onto leased land for a variety of purposes were qualifications of that right but they did not destroy it. They merely limited the enjoyment of that right to the extent that the particular statute prescribed. For example, s 205 which authorised the depasturing of stock other than sheep along stock routes traversing pastoral leases was simply what it purported to be: a statutory exception to the right which, as an incident of the right to exclusive possession, the lessee would otherwise have had to exclude the stock and the persons driving the stock ^[F21] .

However, there are certain statutory provisions which authorised the suspension or termination of a lessee's right to exclusive possession. The clearest example was the statutory power to resume for particular purposes a portion of land subject to a pastoral lease. That power, contained in Pt VI Div VI of the 1910 Act, did not deny that the land resumed was in the exclusive possession of the lessee prior to the resumption. Another example is found in The Petroleum Act of1923 (Q). Assuming the power to grant a petroleum lease under that Act extended to the grant of a petroleum lease over "private land" (which included pastoral leaseholds ^[F22] ), it may be that the petroleum lease conferred a right to exclusive possession on the petroleum lessee that suspended the right to exclusive possession otherwise exercisable by a pastoral lessee ^[F23] . But that is not to say that the pastoral lessee's interest in land the subject of a pastoral lease was altered by the mere existence of a power to grant a petroleum (or other mining) lease over the same land. The problems of mining leases over land already leased by the Crown arise precisely because the Crown has already disposed of the leasehold estate in the land.

It remains a question of construction whether a pastoral lease issued pursuant to Pt III Div I of the 1910 Act confers on the lessee a right to exclusive possession. That question is to be determined by reference to the terms of the lease and of the Act under which it was issued. It is not a necessary consequence of the description of the instruments issued pursuant to Pt III Div I of the 1910 Act as leases that they conferred a right of exclusive possession on the lessee. The question whether the lessees acquired a right to exclusive possession does not depend on what the parties called the instrument except in so far as their description of the instrument indicates the rights which it confers. As the Privy Council observed in Glenwood Lumber Company v. Phillips ^[F24] , it is not a question of words but of substance. Thus, their Lordships held in O'Keefe v. Malone ^[F25] that an exclusive and transferable licence to occupy land for a defined period is in truth a lease. Conversely, a true lease confers on the lessee a right to exclusive possession, albeit that right might be subject to particular reservations or exceptions ^[F26] . In Radaich v. Smith ^[F27] Windeyer J said:

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

Although it is the substance of the rights conferred and not the description of the instrument conferring them which is the ultimate touchstone for determining whether a lease has been granted, the ordinary rules of interpretation require that, in the absence of any contrary indication, the use in a statute of a term that has acquired a technical legal meaning is taken prima facie to bear that meaning ^[F28] . Under the 1910 Act, the power to grant a pastoral lease was a power to "demise for a term of years" ^[F29] ; a "lease" was declared to be effectual to vest "the estate or interest therein stated" ^[F30] ; a pastoral lease was granted for a term ^[F31] commencing on a quarter day ^[F32] in respect of a specified area of land ^[F33] ; there was an obligation to pay the rent ^[F34] ; provision was made for a "surrender" of a lease ^[F35] and for forfeiture ^[F36] and, on forfeiture, the land reverted to His Majesty and could have been dealt with again under the Act ^[F37] . This is the language of lease.

In American Dairy Queen (Q'ld) Pty Ltd v. Blue Rio Pty Ltd ^[F38] I observed in reference to the similar provisions of the 1962 Act:

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

This is the long-established and hitherto accepted approach to the operation of Crown Lands legislation in Australia. In Attorney-General of Victoria v. Ettershank ^[F39] , the opinion of the Privy Council defined the effect of a "lease" issued under the Land Acts in force in Victoria:

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

The statutes of the Australian colonies regulating the alienation of interests in unalienated land have been construed as controlling the Crown's capacity to contract for the alienation of interests and the Crown's capacity to grant interests in such land. The principle applicable in New South Wales as in other Australian colonies was that the Crown was "only authorized to dispose of Crown lands in accordance with the provisions of the Crown Lands Acts" ^[F40] . In Cudgen Rutile (No 2) Ltd v. Chalk ^[F41] Lord Wilberforce said:

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

Illustrative of this view is the judgment of Isaacs J in O'Keefe v. Williams ^[F42] , where his Honour repeated a view he had earlier ^[F43] expressed:

"'It may fairly be said that the whole frame of the Crown Lands Act shows that the legislature has merely enacted the method and conditions upon which the Crown may contract for the disposal of its interest in the public lands.' And that involves the position that the Crown may contract to give a lease, and may contract by a lease. It cannot contract either for or by a lease in any terms contrary to the Statute; and where the Statute declares what rights the lease when granted shall confer, in other words declares its legal effect, the Crown when granting such a lease grants those rights."

The use of well understood conveyancing terms in statutes authorising the disposition of interests in unalienable land was taken to import the interests and rights ordinarily attributed to those terms ^[F44] . The substantive rights conferred on a Crown lessee are equated with the rights of a lessee under a lease at common law granted within the confines of the empowering statute. The substantive rights of a Crown lessee thus include the right of exclusive possession. In Goldsworthy Mining Ltd v. Federal Commissioner of Taxation ^[F45] , Mason J held "the language of lease" to indicate an agreement by the Crown to give the lessee the right of exclusive possession.

However, there is a passage in a judgment of Isaacs J in Davies v. Littlejohn ^[F46] in which his Honour speaks of conditional purchases under the Crown Lands Consolidation Act 1913 (NSW) not as contracts but as creatures of statute. He said of the Act:

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

His Honour's approach was followed by the Full Court of the Supreme Court of Victoria in In re Brady ^[F47] in defining the right to a grant in fee simple possessed by a Crown lessee who had complied with the conditions of the lease and was entitled to the grant on payment of a specified amount. Both of these cases were concerned to distinguish between a statutory right to acquire the fee and an ordinary contract of sale under which the respective rights of vendor and purchaser are affected by equitable principles. In Davies v. Littlejohn, Isaacs J was concerned to demonstrate that the Crown had no vendor's lien on the unpaid price of land held on conditional purchase. As the purchaser under a conditional purchase (unlike a purchaser under an ordinary contract for the sale of land) acquired no interest in the land until the statutory conditions were fulfilled, the Crown (unlike a vendor under an ordinary contract for the sale of land) parted with no interest. Accordingly, there was no occasion for equity to protect the Crown by a vendor's lien for the unpaid balance of the purchase price. The scheme for conditionally purchasing land was statutory and there was "no room for equity to intervene and modify the nature of a conditional purchase as Parliament has shaped it" ^[F48] . Of course the conditions which entitle a person to the grant of a freehold estate under a conditional purchase are prescribed by statute;non constatthat a lease issued by the Crown in exercise of its statutory powers is not truly a lease conferring, or in accordance with the statute conveying, a leasehold estate.

The reasoning in Davies v. Littlejohncasts no doubt on the orthodox characterisation as leases at common law of leases issued by the Crown under Crown Lands legislation. Attorney-General of Victoria v. Ettershank ^[F49] makes the distinction between a lease contractually binding on the Crown though issued in accordance with the statute and a purely statutory right to acquire the fee that is conferred on a lessee:

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

This passage was cited by Isaacs J in O'Keefe v. Williams ^[F50] .

The Court of Appeal of New South Wales in Minister for Lands and Forests v. McPherson ^[F51] was right to view Davies v. Little john and O'Keefe v. Williamsas cases dealing with distinct subjects. Mahoney JA said ^[F52] :

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

Kirby P, after referring to both cases, said ^[F53] :

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

I respectfully agree. In Davies v. Littlejohn, Isaacs J simply followed the principle established by Attorney-General of Victoria v. Ettershank. Indeed, he did not think it necessary to refer to Attorney-General of Victoria v. Ettershankor to either of the O'Keefe v. Williams appeals in which he had cited that case ^[F54] . Whatever may be said of conditional purchases, a Crown lease issued under s 6(1) of the 1910 Act was effective to convey and vest "the land therein described for the estate or interest therein stated" ^[F55] . The lessee acquired more than a bundle of statutory rights: the lessee acquired a leasehold estate.

Although the 1910 Act did not expressly confer on a Crown lessee the right to exclusive possession - a circumstance on which the Thayorre submission places particular emphasis - that right is the leading characteristic of a leasehold estate, distinguishing the lease from a licence, as Lord Templeman pointed out in Street v. Mountford ^[F56] . If the 1910 Act intended the lease to confer no more than the rights expressed by the Act, there would have been little point in distinguishing between leases and licences which share many statutory features. Yet the distinction is clearly made. I see no basis, consistently with authority, for denying to lessees holding under Crown leases issued under the 1910 Act (or under the 1962 Act) the right of exclusive possession characteristic of a leasehold estate.

Notwithstanding the language of lease that is found in both Pt III Div I of the 1910 Act and the instruments of lease of the subject lands, the Thayorre submission characterises a pastoral lease as a mere profit a prendre - an interest in the land which authorises the pastoralist to enter on the land of another (presumably on the land of the holders of native title) for the sole purpose of grazing stock. That view of a pastoral lease was rejected by the Colonial Land and Emigration Office in April 1849 ^[F57] and, in 1870, the Full Court of the Supreme Court of Queensland held ^[F58] that a pastoral lessee had an "exclusive right to the land". After the enactment of the 1910 Act, the Full Court held that the Crown and its lessees were in the same position, subject to statute, as a landlord and tenant at common law ^[F59] . A pastoral lease under Regulations pursuant to the Australian Waste Lands Act (Imp) ^[F60] by which the Crown purported to "demise and lease" to a lessee a parcel of land in Western Australia was said by Griffith CJ in Moore and Scroope v. The State of Western Australia ^[F61] to create "an estate in the land which could not be diminished by the Crown by means of any disposition of the land inconsistent with the continuance of the estate so created" subject, however, to a reservation which - in that case - empowered the Crown to sell the land demised. It has never hitherto been doubted that a Crown lease conferred an estate on a lessee taking possession under the lease ^[F62] . Although the Thayorre submission that the depasturing of stock can be made the subject of a profit a prendre is correct, it does not follow that the right to depasture stock conferred by a pastoral lease is a mere profit a prendre.

In Falklands Islands Co v. The Queen ^[F63] the Privy Council considered an instrument described as a licence "to depasture stock on 10,000 acres [of the Falkland Islands], the limits of which were strictly defined in the instrument, for a term of twenty years, in consideration of an annual rent of £ 10". The instrument contained a reservation "securing to the Crown the right of re-entering on the lands for the purpose of making roads, canals, and other works of public utility, the right to cut timber, and to search for and carry away stones or other materials which might be required for making or keeping such works in repair, and also reserving to the Crown all mines of gold, silver, precious metals, and coal, with full liberty to search for and carry away the same" ^[F64] . Their Lordships classified the instrument as a lease, expressing the opinion that ^[F65] -

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

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

In order to rebut this conclusion, the Thayorre submission (and perhaps the Wik submission ^[F66] ) contends for a presumption against the Crown's intending to derogate from native title and for a construction of s 6 of the 1910 Act and of the pastoral leases granted thereunder that would leave native title subsisting. The submission points to the difference in the position of the holders of native title who are said to be vulnerable and the position of the Governor in Council who is said to have the dominant power to alienate interests in land subject to native title. That difference is said to give rise to a fiduciary duty owed by the Crown to the holders of native title which, if I understand the submission correctly, creates a presumption that the legislature did not intend to extinguish native title and that, by reason of that presumption, the grant of a pastoral lease did not extinguish native title.

To compare the relative positions of the Crown and the holders of native title is not to show the existence of any relevant fiduciary duty. Even if there were some fiduciary relationship, it could not affect the interpretation to be placed on s 6 of the 1910 Act ^[F67] . Indeed, the proposition that the Crown is under a fiduciary duty to the holders of native title to advance, protect or safeguard their interests while alienating their land is self-contradictory. The sovereign power of alienation was antipathetic to the safeguarding of the holders of native title. In conferring the power of alienation, Parliament imposed no guidelines to be observed in its exercise. The power was to be exercised as the Governor in Council saw fit. At the time when the 1910 Act conferred the power of alienation on the Governor in Council, native title was not recognised by the courts. The power was not conditioned on the safeguarding or even the considering of the interests of those who would now be recognised as the holders of native title.

In the case of the Holroyd River Holding, the pastoral lessee went into actual possession of the land but in the case of the Mitchellton Leases, no lessee ever went into actual possession. At common law, a lessee who had not entered into possession had an interest known asinteresse terminiwhich carried a right to enter ^[F68] and to maintain an action for ejectment ^[F69] but not an action for trespass ^[F70] . And, as the lessee acquired no estate in the land prior to taking possession, no reversion expectant on the termination of the leasehold interest arose until possession was taken ^[F71] . The landlord's estate remained unaffected until possession was taken by the tenant.

However, s 6(2) of the 1910 Act provided, inter alia, that "[t]he grant or lease ... shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated". Whatever be the position in other States, in Queensland s 6(2) vested in the named lessee the estate or interest conferred by the instrument of lease when the instrument was "so made", that is, "made in the prescribed form" ^[F72] . True it is that the sub-section was concerned with the form of the instrument, but that is not surprising when the issue of the lease is merely the Crown's response to the lessee's application for a lease of an area which the Minister has declared open for pastoral lease ^[F73] . It follows that on the grant of a pastoral lease under the 1910 Act, the pastoral lessee was, in point of law, in possession of the land demised, irrespective of the lessee actually going into possession of the land. It follows that, in point of law, the lessees of the Mitchellton Leases were in the same position as a lessee at common law who entered into possession forthwith on the granting of the lease. In my opinion, the lessees under each pastoral lease had possession and a right to exclusive possession at the latest from the moment when the lease was issued. And, for reasons presently to be stated, the Crown had the reversion expectant on the termination of the lease.

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

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

As I held in Mabo [No 2], native title "has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory" ^[F74] . Those rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law ^[F75] . Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it ^[F76] . Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect "unless there be a clear and plain intention to do so" ^[F77] . Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title ^[F78] . In reference to grants of interests in land by the Governor in Council, I said in Mabo [No 2] ^[F79] :

" A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title."

Third party rights inconsistent with native title can be created by or with the authority of the legislature in exercise of legislative power but, as the power of State and Territory legislatures is now confined by the Racial Discrimination Act 1975 (Cth), a State or Territory law made or executive act done since that Act came into force cannot effect an extinguishment of native title if the law or executive act would not effect the extinguishment of a title acquired otherwise than as native title ^[F80] .

The third category are laws and acts by which the Crown acquires a full beneficial ownership that extinguishes native title. That may occur by acquisition of native title by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Or the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. (Such an acquisition by the Crown in right of a State or Territory would have occurred, if at all, before the Racial Discrimination Act came into force.) In the latter case, the appropriation of the land gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title - for example, by building a school or laying a pipeline. Until such a use takes place, nothing has occurred that might affect the legal status quo. A mere reservation of the land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land ^[F81] , but the Crown's exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in or over the land used ^[F82] .

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

On the issue of a pastoral lease under the 1910 Act, the lessee acquired an estate. There is no legal principle which would defer the vesting of, or qualify, that estate in order to allow the continuance of a right to enjoy native title. Given that the pastoral lessee acquired a right to exclusive possession at latest when the lease was issued, there was an inconsistency between that right and the right of any other person to enter or to remain on the land demised without the lessee's consent. Assuming that access to the land is an essential aspect of the native title asserted, inconsistency arises precisely because the rights of the lessee and the rights of the holders of native title cannot be fully exercised at the same time. As Mahoney J observed in Hamlet of Baker Lake v. Minister of Indian Affairs ^[F83] with reference to Indian land rights in Canada:

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

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

The law can attribute priority to one right over another, but it cannot recognise the co-existence in different hands of two rights that cannot both be exercised at the same time ^[F84] . To postulate a test of inconsistency not between the rights but between the manner of their exercise would be to deny the law's capacity to determine the priority of rights over or in respect of the same parcel of land. The law would be incapable of settling a dispute between the holders of the inconsistent rights prior to their exercise, to the prejudice of that peaceful resolution of disputes which reduces any tendency to self-help. To postulate extinguishment of native title as dependent on the exercise of the private right of the lessee (rather than on the creation or existence of the private right) would produce situations of uncertainty, perhaps of conflict. The question of extinguishment of native title by a grant of inconsistent rights is - and must be - resolved as a matter of law, not of fact. If the rights conferred on the lessee of a pastoral lease are, at the moment when those rights are conferred, inconsistent with a continued right to enjoy native title, native title is extinguished ^[F85] .

The submission that inconsistency in the practical enjoyment of the respective rights of the native title holders and of the pastoral lessees, not inconsistency between the rights themselves, determines whether native title has been extinguished is founded on the notion that the 1910 Act and pastoral leases should be given a restrictive operation so as to permit, as far as possible, the continued existence of native title. If that notion is not applied, there is "a significant moral shortcoming in the principles by which native title is recognised," to adopt a dictum of French J ^[F86] .

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

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

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

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

5. The nature of the Crown's reversion

In Mabo [No 2] I expressed the view ^[F87] :

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

If this be the correct view, there is no occasion for the revival of native title. The Crown's title to the land on reversion would be inconsistent with a continued right to enjoy native title. The Wik and Thayorre submissions together raise two grounds of challenge to the view I expressed in Mabo [No 2]: first, that a pastoral lease is issued in exercise of a statutory power, not in exercise of the Crown's proprietary rights in the land and that the interest of the Crown on reversion is no more than the radical title or, alternatively, no more than the minimum proprietary interest required to support the leasehold interest possessed by the lessee; and second, the rights and interest of the native title holders are suspended only to the extent necessary to admit the interest of the pastoral lessee and, on expiry of the term ^[F88] or earlier determination of the lease, revive ^[F89] .

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

If it were right to regard Crown leaseholds not as estates held of the Crown but merely as a bundle of statutory rights conferred on the lessee, it would be equally correct to treat a "grant in fee simple" not as the grant of a freehold estate held of the Crown but merely as a larger bundle of statutory rights. If the grant of a pastoral lease conferred merely a bundle of statutory rights exercisable by the lessee over land subject to native title in which the Crown (on the hypothesis advanced) had only the radical title, the rights of the lessee would be jura in re aliena: rights in another's property. And, if leases were of that character, an estate in fee simple would be no different. Then in whom would the underlying or residual common law title subsist? Presumably, in the holders of native title. But such a theory is inconsistent with the fundamental doctrines of the common law ^[F90] . And it would equate native title with an estate in fee simple which, ex hypothesi, it is not. To regard interests derived from the Crown as a mere bundle of statutory rights would be to abandon the whole foundation of land law applicable to Crown grants. In Mabo [No 2], Deane and Gaudron JJ declared that the general common law system of land law applied from the establishment of the first Australian colony. Their Honours said ^[F91] :

"It has ... long been accepted as incontrovertible that the provisions of the common law which became applicable upon the establishment by settlement of the Colony of New South Wales included that general system of land law ^[F92] . It follows that, upon the establishment of the Colony, the radical title to all land vested in the Crown. Subject to some minor and presently irrelevant matters, the practical effect of the vesting of radical title in the Crown was merelyto enable the English system of private ownership of estates held of the Crown to be observed in the Colony. In particular, the mere fact that the radical title to all the lands of the Colony was vested in the British Crown did not preclude the preservation and protection, by the domestic law of the new Colony, of any traditional native interests in land which had existed under native law or custom at the time the Colony was established." (Emphasis added.)

The English system of private ownership of estates held of the Crown rests on "two fundamental doctrines in the law of real property" ^[F93] , namely, the doctrine of tenure and the doctrine of estates.

By the interlocking doctrines of tenure and estates, the land law provides for the orderly enjoyment in succession of any parcel of land. The doctrine of tenure creates a single devolving chain of title and the doctrine of estates provides for the enjoyment of land during successive periods ^[F94] . The doctrines of tenure (with its incident of escheat ^[F95] ) and estates ensure that no land in which the Crown has granted an interest is ever without a legal owner ^[F96] . The creation of a tenure, however limited the estate in the particular parcel of land may be, establishes exhaustively the entire proprietary legal interests which may be enjoyed in that parcel of land. If the interests alienated by the Crown do not exhaust those interests, the remaining proprietary interest is vested in the Crown. In In re Mercer and Moore ^[F97] , Jessel MR said:

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

In this country, the Crown takes either by reversion on expiry of the interest granted or by escheat on failure of persons to take an interest granted. It is unnecessary for present purposes to distinguish between them ^[F98] .

By exercise of a statutory power to alienate an estate in land, the Crown creates, subject to statute, a tenure ^[F99] between the Crown and the alienee. It follows that, subject to statute - and all powers of alienation of interests in land in Australia are governed by statute ^[F100] - where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land ^[F101] and the lessee is in possession, a legal reversionary interest must be vested in the Crown. Such an interest is the necessary foundation for the existence of a right to forfeit for breach of condition ^[F102] .

An exercise of the statutory power of alienation of an estate in land brings the land within the regime governed by the doctrines of tenure and estates. Once land is brought within that regime, it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out from either an estate or the Crown's reversionary title. Native title is not a tenure ^[F103] ; it is not an interest held of the Crown, mediately or immediately. It is derived solely from the traditional laws and customs of the indigenous peoples. Consistently with our constitutional history and our legal system, it is recognised as a common law interest in land provided it has not been extinguished by statute, by a valid Crown grant of an estate inconsistent with the continued right to enjoy native title or by the Crown's appropriation and use of land inconsistently with the continued enjoyment of native title. As the majority judgment in Western Australia v. The Commonwealth. Native Title Act Case ^[F104] said:

"Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native titleto land that has not been alienated or appropriatedby the Crown." (Emphasis added.)

It was only in respect of unalienated and unappropriated land that native title was recognised as subsisting. Thus I noted in Mabo [No 2] ^[F105] :

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

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

The provisions of the 1910 Act admit of no interest in land the subject of a pastoral lease being held by any person other than the Crown, the lessee and persons taking an interest under the lease. Historically, it is impossible to suppose that Parliament, in enacting the 1910 Act (or, for that matter, the 1962 Act) might have intended that any person other than the Crown should have any reversionary interest in land subject to a pastoral lease. In 1910 (as in 1962), no recognition was accorded by Australian courts to the existence of native title in or over land in Australia. On the contrary, the common understanding was that, from the beginning of colonial settlement, Crown grants were made out of the Crown's proprietary title to all land in the colony ^[F106] . The 1910 Act makes it clear that, on the issue of a pastoral lease, the reversion was held by the Crown. Rent was a debt "due to His Majesty" ^[F107] , the Minister was the recipient of a notice of intention to surrender ^[F108] and forfeiture was enforced only if the Governor in Council so decided ^[F109] . On forfeiture, the land reverted to His Majesty ^[F110] ; on forfeiture or surrender, improvements to the property were deemed to be vested in the Crown but were to be paid for by the "incoming lessee, selector, or purchaser" ^[F111] ; and provision was made for dealing with land "pursuant to a certificate given under'The Escheat (Procedure and Amendment) Act, 1891'" ^[F112] . The last-mentioned Act provided a simplified procedure for ascertaining "the failure of the heirs or next-of-kin of an intestate, or the alienage of a grantee, or such other facts, as may be necessary to establish the title of Her Majesty in right of the Crown or otherwise" ^[F113] . The procedure was prescribed in order to determine, inter alia, questions arising "as to the title of Her Majesty in right of the Crown to any land or interest in land in any case of escheat or alleged escheat" ^[F114] . Thus, the 1910 Act treated the Crown as having not only the power to issue a lease and thus entitle the lessee to a leasehold estate but also as having the reversionary interest which, under the ordinary doctrines of the common law, a lessor had to possess in order to support and enforce the relationship of landlord and tenant. The 1910 Act also conferred certain statutory rights on pastoral lessees, the exercise of which would require the carving of further proprietary interests out of the reversion. The lessee of a pastoral lease whose term had expired had a priority right ^[F115] , if the land was then open to selection ^[F116] , to apply for a selection, some categories of which conferred a right to acquire the selection in fee simple ^[F117] and others a right to take it on perpetual lease ^[F118] . These interests were clearly intended to be carved out of the Crown's reversionary title, not out of the title of a third party.

The Wik submission then denies the Crown's title to the reversion on the ground that it is not assignable. That objection could as easily be raised to the proprietary interest of the Crown. But the Crown "assigns" a proprietary interest in its land by grant unless the Crown has acquired an interest that is assignable, for example, the interest of a sub-lessor.

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

6. Temporary suspension of native title

The second limb of the Wik and Thayorre attack on the notion of the Crown's title on reversion limits that title to a nominal period after the determination of the lease. This submission is supported by the thirteenth respondent ("ATSIC") which submits that the Crown should not be taken, upon the granting of a limited estate, to appropriate to itself ownership of the reversion for an unlimited time. At common law, a lessor who grants a leasehold estate needs an estate out of which the leasehold estate is carved ^[F119] , else there can be no demise ^[F120] . The lessor needs no more to support the grant than an estate greater (or deemed to be greater) than the estate granted ^[F121] . The demise in a pastoral lease would be supported if the Crown's reversion were limited to some nominal period beyond the term of the lease. That would be a sufficient estate to allow the Crown to enforce conditions binding on the lessee ^[F122] .

Must the Crown's title be treated as any greater when the land is subject to a claim of native title? The hypothesis of the submission must be that native title subsists notwithstanding the demise of the land for the term of the pastoral lease and that the Crown acquires no more than a nominal proprietary interest sufficient to support the lease. Upon the determination of the lease, native title revives - assuming there are persons who satisfy the qualifications of native title holders - and burdens the Crown's radical title in the same way as native title burdened that title prior to alienation. Logically, this hypothesis would attribute to the Crown no more than a radical title (that is essentially a power of alienation controlled by statute) whenever there might be a gap in or cesser of the proprietary interest of an alienee. It would treat that proprietary interest as a bundle of statutory rights to which the doctrines of tenure and estates had no necessary application. No land would escheat to the Crown, at least while there were any surviving holders of native title. That cannot be accepted. Even if the grant of a lease were seen merely as an exercise of sovereign power and not as an alienation of property, the land would go back to the Crown on the determination of the lease, if not as a matter of title then as a matter of seigniory ^[F123] .

Nevertheless, the hypothesis seems to be internally consistent. But it fails to attribute to the doctrines of tenure and estates their function of maintaining the skeleton of the law of real property unless native title is treated as the equivalent of an estate in remainder, falling into possession on the determination of a prior estate. Of course, native title is not an estate and to treat native title as falling into possession on the determination of a prior estate is to create problems of title not easy to resolve. If the holders of native title were recognised as the owners of an estate in remainder in the land, could the priority right to a selection enjoyed by a lessee ^[F124] be exercised? And would the holders of native title have become liable to pay for the improvements to the land effected during the expired lease? ^[F125] To what extent was the discretion to enforce a forfeiture against a lessee affected by the supposed subsistence of native title in the land? In the unusual event of the determination of an estate in fee simple, would the land revert to the Crown or would it be taken by the holders of native title? And, since the Racial Discrimination Act 1975 (Cth) commenced, would the provisions ^[F126] which annex statutory rights to a pastoral lease (for example, a right to receive an offer of a new lease) be ineffective by reason of s 109 of the Constitution?

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

7. The claims for equitable relief

The Wik and Thayorre submissions assert the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased areas. The duty is said to arise from the vulnerability of native title, the Crown's power to extinguish it and the position occupied for many years by the indigenous inhabitants vis-a-vis the Government of the State. These factors do not by themselves create some free-standing fiduciary duty. It is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed ^[F127] . The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted ^[F128] that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary ^[F129] ) to the exclusion of the interest of any other person or the separate interest of the beneficiary ^[F130] .

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

The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power - whether statutory or not - that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary ^[F131] . Thus in Guerin v. The Queen ^[F132] , the Crown accepted a surrender by an Indian band of native title to land in order that the land be leased by the Crown to a third party. The statutory scheme which provided for the surrender to the Crown and its subsequent dealing with the land imposed on the Crown the duty to act "on the band's behalf" ^[F133] , as "the appointed agent of the Indians ... and for their benefit" ^[F134] or for their "use and benefit" ^[F135] . Similarly, in the United States the statutory scheme for dealing with Indian land requires the sanction of a "treaty or convention entered into pursuant to the Constitution" ^[F136] . The scheme has its origin in the Indian Nonintercourse Act 1790 (US) ^[F137] which, in its successive forms, has been held to impose on the Federal Government "a fiduciary duty to protect the lands covered by the Act" ^[F138] .

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

This conclusion precludes the acceptance of a further submission made on behalf of the Wik and Thayorre Peoples. That submission sought to impose a constructive trust in their favour of the Crown's reversionary interest in the leased land. If the constructive trust be viewed as a remedial institution, as Deane J viewed it in Muschinski v. Dodds ^[F139] , it is nevertheless available "only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles" ^[F140] . Given that no fiduciary duty was breached by the Crown in issuing the pastoral leases under s 6 of the 1910 Act and that the issue of those leases destroyed native title, there is no principle of law or equity which would require the imposition of a constructive trust on the reversion to restore what the holders of native title had lost.

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

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

8. Claims against Comalco, Pechiney and Queensland

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

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

Section 3 provides:

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

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

The Agreement set out in the schedule required the State, inter alia, to grant to Comalco a Special Bauxite Mining Lease for an initial term of 84 years ^[F141] . The form of lease was prescribed ^[F142] . The Agreement was made on 16 December 1957 and the lease was issued on 3 June 1965 as ML7024.

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

Section 3 was referred to by Dunn J in Commonwealth Aluminium Corporation Limited v. Attorney-General ^[F143] in these terms:

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

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

However, the sufficiency of the Comalco response turns on the operation attributed to s 2 as well as to s 3 of the Comalco Act. Although s 2 authorises, but does not command, the Premier and Chief Secretary to make the Agreement, the authorisation it gives is unqualified by any requirement as to the performing of a fiduciary duty or the according of natural justice. So soon as the Agreement is in fact made, s 3 operates to give it the force of law "as though [it] were an enactment of this Act". It follows that, the Agreement having been made, the powers conferred by the Agreement acquire the force of statutory powers. Thus s 3 operates to give validity to what is done in their exercise ^[F144] . Therefore the granting of the Special Bauxite Mining Lease was valid. Moreover, whatever consequences flowed to the Wik Peoples from the granting of that lease could not be actionable loss or damage, for those consequences were the result of an act sanctioned by the Comalco Act.

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

The Comalco response is thus good in law.

The Wik claim against Aluminium Pechiney Holdings Pty Limited (Pechiney) and the submission in support arise from the making and implementing of an Agreement (the "Associates Agreement") authorised by the Aurukun Associates Agreement Act 1975 (Q). The Associates Agreement provided for the grant of a Special Bauxite Mining Lease ^[F145] for 42 years ^[F146] in a form set out in the Fourth Schedule to that Agreement ^[F147] . The provisions of the Aurukun Associates Agreement Act, the allegations in the statement of claim with respect to the making of the Associates Agreement under that Act and the relief claimed are indistinguishable from the provisions of the Comalco Act and the allegations and the relief claimed against Comalco. Pechiney's response, substantially identical to Comalco's response, is also good in law. The claim against Pechiney seeks relief in respect of an earlier agreement (the "Access Agreement") between the Director of Aboriginal and Islanders' Advancement and certain corporations including Pechiney. The Access Agreement was scheduled to the Associates Agreement, the latter being given the force of law. The third respondent (The Aboriginal and Islander Affairs Corporation) is the statutory successor of the Director and is sued in that capacity. An account is sought against both Pechiney and the third respondent by reason of their entry into the Access Agreement and the obtaining of benefits under it. However, in The Corporation of the Director of Aboriginal and Islanders Advancement v. Peinkinna ^[F148] the Privy Council held that the Aurukun Associates Agreement Act ratified the Access Agreement and recognised it as valid and subsisting. There is no reason to dissent from that view, the consequence of which is that neither entry into the Access Agreement nor the obtaining of benefits under it can give rise to a cause of action in the Wik Peoples. It follows that the answers given by Drummond J to questions 4 and 5 were correct.

I would dismiss the appeals and make orders for costs against the Wik Peoples and the Thayorre People in favour of those parties who opposed their claims. I would make no order as to the costs to be paid to or by other parties.

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