Wik Peoples and Thayorre People v. Queensland & others

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

---

(Judgment by: Gaudron J)

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:

Judges: Brennan CJ
Dawson
Toohey

GaudronMcHugh
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:
Gaudron J

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

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

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

It will later be necessary to refer in some detail to some of the questions raised for determination as preliminary issues. For the moment it is sufficient to note that, at first instance, Drummond J declined to answer one of those questions, Q 2, but answered the others in a manner adverse to the interests of the Wik and the Thayorre Peoples ^[F250] . The Wik and Thayorre Peoples (together referred to as "the appellants") were each granted leave to appeal to the full Federal Court and, in due course, their appeals were removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth).

THE ISSUES IN THE APPEAL

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

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

The major issue in the appeal arises by reference to questions 1B(b), (c) and (d) and 1C(b), (c) and (d). Those sub-questions are directed to ascertaining whether, as contended by the State of Queensland and the other respondents who adopted the same position in this Court ^[F251] (together referred to as "the respondents"), the grant of pastoral leases pursuant to the Land Act 1910 (Q) ^[F252] ("the 1910 Act") and the Land Act 1962 (Q) ("the 1962 Act") automatically extinguished native title rights. The sub-questions proceed by reference to two leases granted under the 1910 Act ("the Mitchellton Pastoral Leases") and one granted under the 1962 Act ("the Holroyd Pastoral Lease").

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

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

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

The arguments with respect to Pastoral Leases

As already mentioned, no argument was directed to question 1C(a). As to questions 1B(b), (c) and (d) and 1C(b), (c) and (d), it was argued for the respondents in this Court and by the interveners who appeared in the same interest ^[F253] that pastoral leases granted under the 1910 and 1962 Acts were true leases in the traditional common law sense and, thus, conferred rights of exclusive possession. Those rights, according to the argument, are inconsistent with the continued existence of native title rights and, thus, necessarily extinguished them. On the other hand, the appellants and the interveners and respondents appearing in the same interest ^[F254] argued that pastoral leases granted under those Acts were not true leases and did not confer rights of exclusive possession, but merely rights to use land for pastoral purposes.

By way of alternative, the appellants argued that, if pastoral leases did confer rights of exclusive possession, native title rights were not extinguished because those rights were not exercised either pursuant to the Mitchellton Pastoral Leases or the Holroyd Pastoral Lease. The respondents and supporting interveners replied to this contention by asserting that it was the grant, not the exercise, of a right of exclusive possession which operated to extinguish native title rights. In this they were undoubtedly correct. As Deane J and I pointed out in Mabo v. Queensland [No 2] ^[F255] , native title rights "are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession" or other inconsistent dealings with the land by the Crown.

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

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

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

The Mitchellton land

As the Mitchellton Pastoral Leases were granted before the Holroyd Pastoral Lease, it is convenient to deal with them first. They were granted under the 1910 Act and are the subject of separate claims by the Wik Peoples and the Thayorre People. The land the subject of these Pastoral Leases ("the Mitchellton land") is located north of Normanton, in far north Queensland. It covers an area of 535 square miles, extending from the Mitchell River to the Edward River in the north and west to the Gulf of Carpentaria. It is in the District of Cook which was opened up for occupation in 1866 ^[F256] .

Dealings with the Mitchellton land

There were no dealings with the Mitchellton land by government authorities until 1912. In that year, on 23 May, an occupation license ^[F257] was granted to William Hutson for an area of "about 100 square miles". The license was expressed to extend "until 31 December [1912], and thereafter from year to year, so long as the rent fixed from time to time in terms of the [1910] Act [should] be punctually paid". The license was determinable in a number of specified events, including in the event that the land was selected, leased, reserved or sold under that Act. The license was subsequently forfeited.

On 28 January 1915, an area of 535 square miles which included the land the subject of the occupation license forfeited by William Hutson was notified as open for pastoral lease "in terms of section 40" of the 1910 Act ^[F258] . It was granted to Alfred Joseph Smith, Thomas Alexander Simpson and Marshall Stanley Woodhouse for a term of 30 years from 1 April of that year ("the first Mitchellton lease") ^[F259] . The lease was forfeited in 1918 for failure to pay rent ^[F260] . It was accepted by Drummond J at first instance that the lessees never entered into possession ^[F261] .

The Mitchellton land was again notified as open for lease on 23 August 1918 ^[F262] . On 14 February 1919, it was granted to Walter Sydney Hood for a term of 30 years from 1 January 1919 ("the second Mitchellton lease"). That same year, on 9 September, he transferred his interest to Byrimine Pastoral Properties Limited ("the company"). The company surrendered the lease pursuant to s 122 of the 1910 Act on 12 October 1921. Again it was accepted by Drummond J that neither Mr Hood nor the company entered into possession ^[F263] .

Shortly before the surrender of the second Mitchellton Lease, the Chief Protector of Aboriginals wrote to the Under Secretary, Home Secretary's Department, informing him that there were "about 300 natives roaming on [the] country" and complaining that there had been no consultation with his Department with respect to the lease. He also noted that there was "a suggestion that the [c]ompany [might] allow the lease to lapse" and urged that, if it did, his Department should be consulted before anyone else was allowed to obtain possession. Whether in consequence of this letter or otherwise, the Mitchellton land was temporarily reserved for the use of Aborigines on 12 January 1922 ^[F264] and permanently reserved for that purpose on 7 May 1930 ^[F265] . Although its precise status has changed from time to time, it has apparently been held for and on behalf of Aboriginal people ever since. And at least some of it is now part of the land held in trust by the Pormpuraaw Aboriginal Council.

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

The question which Drummond J asked concerning the Mitchellton Pastoral Leases (Q 1C) is as follows ^[F266] :

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

(a)

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

(b)

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

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

(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?"

Drummond J answered that question ^[F267] :

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

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

as to question 1C(c): Yes;

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

It is common ground that, in the proceedings before Drummond J, no argument was directed to the question whether possessory title was necessarily extinguished by the grant of the Mitchellton Pastoral Leases and that the answer to Q 1C(d) does not cover that issue ^[F268] .

The terms of the Mitchellton Pastoral Leases

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

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

Early Queensland land law

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

On settlement, there was introduced to the Colony of New South Wales, "by the silent operation of constitutional principles" ^[F269] , that English law "applicable to the condition of an infant Colony", but not "artificial requirements and distinctions ... [which were] neither necessary nor convenient" ^[F270] . And perhaps, "as the population, wealth, and commerce of the Colony increase[d], many rules and principles of English law, which were unsuitable in its infancy, [were] gradually ... attracted" ^[F271] .

It was held by the Privy Council, in Cooper v. Stuart ^[F272] , in application of the principles to which reference has just been made, that "[t]here was no land law or tenure existing in the Colony [of New South Wales] at the time of its annexation to the Crown; and, in that condition of matters ... as colonial land became the subject of settlement and commerce, all transactions in relation to it were governed by English law, in so far as that law could be justly and conveniently applied to them." ^[F273]

As pointed out by Drummond J at first instance, land in the Colony of New South Wales was initially disposed of by the Governor in the exercise of prerogative power ^[F274] . Thus, for example, the commission of 2 April 1787 issued to Governor Phillip conferred "full power and authority to agree for such lands tenements and hereditaments as shall be in Our power to dispose of and grant to any person or persons upon such terms and under such moderate quit rents services and acknowledgments to be thereupon reserved unto Us according to such instructions as shall be given to you under Our Sign Manual" ^[F275] .

The prerogative power to dispose of land gave way to a power conferred by statute with the passage of the Sale of Waste Lands Act 1842 (Imp) ^[F276] . Section 2 of that Act provided that the waste lands of the Crown in the Australian colonies were not to be alienated by the Crown either in fee simple or for any less estate or interest otherwise than by sale conducted in accordance with the regulations made under the Act. That Act was amended by the Sale of Waste Lands Act Amendment Act 1846 (Imp) ^[F277] which provided, amongst other things, for the making of rules and regulations by Orders-in-Council ^[F278] .

Prior to 1847, most land was alienated by the grant of an estate in fee simple ^[F279] . Following the enactment of the Sale of Waste Lands Act Amendment Act 1846 (Imp), there issued an Order-in-Council of 9 March 1847 making distinct provision with respect to pastoral leases ^[F280] . The Order-in-Council classified lands in the Colony as "Settled Districts" ^[F281] , "Intermediate Districts" ^[F282] or "Unsettled Districts" ^[F283] and, within those areas, pastoral leases might be granted for one year, eight years or fourteen years respectively ^[F284] .

Apart from the use of the word "lease", there was nothing in the Order-in-Council of 9 March 1847 to indicate the estate or interest intended to be conferred by the grant of a pastoral lease. However, some indication appears from correspondence between the Secretary of State, Earl Grey and the Governor of New South Wales, Sir Charles A FitzRoy, discussing the concern that pastoral lessees might abuse their position with respect to Aborigines who had traditionally used the land ^[F285] . That correspondence culminated in a despatch accompanying an Order-in-Council of 18 July 1849 ^[F286] permitting the insertion in pastoral leases of conditions appropriate for "securing the peaceable and effectual occupation of the lands comprised in such leases, and for preventing the abuses and inconveniences incident thereto". In that despatch Earl Grey wrote ^[F287] :

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

There is also a minute to the same effect on an earlier despatch of 11 October 1848 ^[F288] in which it is recorded:

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

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

The position with respect to the sale and disposal of land changed significantly with the conferral of self government on the Colony of New South Wales, it being provided in s 2 of the New South Wales Constitution Act 1855 (Imp) ^[F289] that "the entire Management and Control of the Waste Lands belonging to the Crown in the said Colony ... shall be vested in the legislature of the said Colony". That constitutional provision was subject to a number of provisoes, only the second of which is presently relevant. By that proviso, "nothing [t]herein contained [was to] affect or be construed to affect any Contract or to prevent the Fulfilment of any Promise or Engagement made by or on behalf of Her Majesty, with respect to any Lands situate in the ... Colony". It is that proviso which lies at the heart of question 1C(a).

The New South Wales Constitution Act 1855 (Imp) also provided, in s 7, for the establishment of a separate colony or colonies by the alteration of the Colony's northern border ^[F290] . Letters Patent were issued pursuant to that section establishing Queensland as a separate colony in 1859 ^[F291] . The Letters Patent conferred on the Governor of Queensland, in cl 5, "full power and authority, by and with the advice of the ... Executive Council, to grant ... any waste or unsettled lands in ... [the] colony ... provided ... that in granting and disposing of such lands [he] ... conform[ed] to and observe[d] the provisions in that behalf contained in any law ... in force within ... [the] colony". There were various statutes, including the Pastoral Leases Act 1863 (Q) which, from time to time, governed the exercise of that power ^[F292] . Again, apart from the use of the word "lease", neither that latter Act nor any other Acts making provision with respect to pastoral leases indicated the estate or interest intended to be granted by a lease of that kind.

With the enactment of the Queensland Constitution Act 1867 (Imp) ^[F293] , the position with respect to waste lands in that Colony was brought into line with that provided for in New South Wales by the New South Wales Constitution Act 1855 (Imp). Thus, it was provided by s 40 of the Queensland Constitution Act 1867 (Imp) that, subject to certain provisoes, "[t]he entire management and control of the waste lands belonging to the Crown ... [should] be vested in the Legislature of the ... colony". Again, it is necessary to mention only one proviso, namely, a proviso in the same terms as that in the New South Wales Constitution Act 1855 (Imp) relating to previous contracts, promises and engagements. That proviso supplanted the proviso to the same effect in the New South Wales Constitution Act 1855 (Imp) which, until then, had been part of the law of Queensland ^[F294] .

The power conferred by s 40 of the Queensland Constitution Act 1867 (Imp) was exercised with the enactment of the Crown Lands Alienation Act 1868 (Q) which provided, amongst other things, for the selection of first and second class pastoral lands and the grant of pastoral leases ^[F295] . Shortly afterwards there was enacted the Pastoral Leases Act 1869 (Q) ^[F296] which was concerned with land in unsettled districts. There followed a number of other legislative measures prior to the enactment of the 1910 Act ^[F297] . Again, apart from the use of the word "lease", none of these measures provides any indication as to the nature of the estate or interest created by the grant of a pastoral lease.

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

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

At first instance, the contention with respect to the issue raised by question 1C(a) was that the despatches between Earl Grey and Sir Charles FitzRoy with respect to Orders-in-Council made following the Sale of Waste Lands Act Amendment Act 1846 (Imp), to which reference has already been made, contained promises or engagements for the preservation of native title rights ^[F298] . According to the argument, they constituted promises or engagements for the purposes of the second proviso to s 2 of the New South Wales Constitution Act 1855 (Imp) which vested the management and control of waste lands in the legislature of New South Wales. And, as earlier noted, that proviso continued in effect in Queensland until supplanted by a proviso in the same terms in the Queensland Constitution Act 1867 (Imp).

Drummond J rejected the contention with respect to the proviso to s 2 of the New South Wales Constitution Act 1855 (Imp), holding that it did "not encompass undertakings to preserve native title rights ... but only undertakings to grant interests in Crown lands made before the [Sale of Waste Lands Act 1842] came into force, which undertakings had not been carried into effect or completed by issue of a formal deed of grant when the [New South Wales Constitution Act 1855 (Imp)] came into effect" ^[F299] .

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

General provisions of the 1910 Act bearing on Pastoral Leases

The 1910 Act was in force when each of the Mitchellton leases was granted and remained in force until after the second Mitchellton lease was forfeited in 1921. It was amended in 1916 ^[F300] , 1917 ^[F301] , 1918 ^[F302] and 1920 ^[F303] . These amendments are not directly relevant to the nature of the interest taken under the Mitchellton Pastoral Leases and it is thus convenient to refer to the 1910 Act in its unamended form. However, it should be noted that the 1916 amendments introduced a different kind of pastoral lease, namely, a preferential pastoral lease which was subject to a condition of personal residence during the first seven years of its term ^[F304] .

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

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

(a)

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

(b)

Reserved for or dedicated to public purposes; or

(c)

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

"Occupation license" was also defined ^[F305] . In essence, an "occupation license" was a license to occupy land for pastoral purposes, expiring on 31 December of each year ^[F306] . There was no definition of "demise", "lease" or "license". "Lessee" was defined merely as "[t]he holder of a lease under [the] Act" ^[F307] .

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

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

The Mitchellton Pastoral Leases were both in the prescribed form, which form provided for reservations in the terms incorporated in those Leases ^[F308] .

The Act provided for the grant of pastoral leases and for the grant of leases of various agricultural selections, including "Perpetual Lease Selection[s]", the latter of which were, by s 104(1), described as "lease[s] in perpetuity". It also provided for licenses to occupy pastoral land ^[F309] and licenses to occupy selections ^[F310] , the latter being licenses which operated pending the grant of a lease. As well, the Act provided for the surrender of any holding on one year's notice in writing or on payment of one year's rent in advance and other moneys due in respect of the holding ^[F311] . It also provided for forfeiture, including for non-payment of rent ^[F312] . It will later be necessary to refer to some of these provisions in greater detail. For the moment, their only significance is to permit an understanding of s 135 which provided:

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

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

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

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

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

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

A provision in similar terms to s 203, namely, s 91 of the Crown Lands Alienation Act 1876 (Q), was considered by Brennan J in Mabo v. Queensland [No 2] ^[F313] . It was held in that case that general words in a statute are not to be construed as extinguishing native title rights unless that intention is manifest, as evidenced by the use of clear and unambiguous words to that effect ^[F314] . In application of that principle, Brennan J said in a passage which, in my view, is clearly correct, that s 91 and similar provisions were "not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title" ^[F315] . That statement is equally true of s 203.

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

Particular provisions of the 1910 Act relating to Pastoral Leases

Provision was made in the Act for procedures to be adopted for the grant of pastoral and other land. It was provided in Pt III, which was headed "Pastoral Tenures", for the Minister to notify that land was "open for pastoral lease" ^[F316] or "open for occupation under occupation license" ^[F317] . The nature of the land which might be the subject of a pastoral lease or of an occupation license was neither defined nor described. However, some indication that the land was generally remote from settled areas appears by contrasting the provisions of Pt III with those of Pt IV, which was headed "Selections". The latter provisions allowed for the Minister to notify that "country land [was] open for selection either as surveyed land or as designed land" ^[F318] , although an application for designed land could not be approved until it was surveyed ^[F319] . "Surveyed land" was land which was surveyed with roads and reserves, whereas "designed land" was land which was divided into portions merely by markings on maps or plans ^[F320] . Further contrast may be made with the provisions of Pt V, headed "Sales by Auction", which provided for the Minister to notify that town, suburban and country land was available for sale as lots ^[F321] .

Moreover, it is clear from s 43, which required the calculation of rent according to the number of square miles, that pastoral leases might be granted for vast areas, many times exceeding that available for agricultural selections. There were statutory limits as to the areas of the different selections for which the Act provided ^[F322] . However, they were expressed in acres, not square miles ^[F323] .

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

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

There was one other condition imposed by Pt III Div 1, namely, a condition with respect to the payment of an annual rent at the rate for the time being prescribed ^[F324] . And as earlier indicated, the rent was to be calculated according to the number of square miles comprised in the lease. The word "rent" was not used in a way that gives any clear indication of the nature of the interest effected by leases authorised by the Act for the Act also required the payment of rent pursuant to licenses to occupy pastoral land ^[F325] and pursuant to occupation licenses granted following approval of settlement applications ^[F326] .

Again, as the terms of the Mitchellton Pastoral Leases indicate, the Act provided with respect to "other rights ... conditions ... [and] restrictions" applicable to pastoral leases. Some were also applicable to other holdings. There was a prohibition in s 198 on ringbarking, cutting and destruction of trees. This condition applied to lessees of pastoral holdings, to holders of occupation licenses, and, also, to selectors of Agricultural, Prickly-pear and Unconditional Selections. However, in the case of selections, it applied only during the first five years ^[F327] .

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

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

The interest conferred by the Mitchellton Pastoral Leases

It is clear that pastoral leases are not the creations of the common law. Rather, they derive from specific provision in the Order-in-Council of 9 March 1847 issued pursuant to the Sale of Waste Lands Act Amendment Act 1846 (Imp) and, so far as is presently relevant, later became the subject of legislation in New South Wales and Queensland ^[F328] . That they are now and have for very many years been entirely anchored in statute law appears from the cases which have considered the legal character of holdings under legislation of the Australian States and, earlier, the Australian Colonies authorising the alienation of Crown Lands. Thus, for example, it was said of such holdings in O'Keefe v. Williams ^[F329] that "[t]he mutual rights and obligations of the Crown and the subject depend, of course, upon the terms of the Statute under which they arise".

O'Keefe v. Williamsis of particular interest because it was argued in that case that occupation licenses under the Crown Lands Act 1884 (NSW) and the Crown Lands Act 1895 (NSW) conferred "an absolute right to possession as against all the world" with the consequence that there was no necessity to imply a right of quiet enjoyment ^[F330] . The argument was disposed of on the basis that, "if sound", it would negative an implied covenant for quiet enjoyment in leases between subject and subject ^[F331] . However, that case does contain statements suggesting that the occupation licenses in question conferred an exclusive right of occupation ^[F332] , a suggestion also made in O'Keefe v. Malone ^[F333] , an earlier case involving the same licenses, and in Macdonald v. Tully ^[F334] , a case arising under the Tenders for Crown Lands Act 1860 (Q).

It may be that in O'Keefe v. Williams Griffiths CJ and Isaacs J both used the expression, "exclusive right to occupy" as synonymous with the expression "exclusive right of possession" ^[F335] . However, that is of little or no significance not only because the case was concerned with different legislation but because their Honours proceeded on the view that the Privy Council had held in O'Keefe v. Malonethat the occupation licenses in question were leases ^[F336] . In truth, their Lordships held only that a power to relieve against "the lapse or voidance of [a] contract ... for the purchase or leasing of Crown lands" extended to relieve against forfeiture of the occupation licenses. And, perhaps, of some relevance to this case, their Lordships reached that conclusion because "the words `leased,' `lease,' and `lessee,' [were] frequently used [in the relevant legislation] as words of a generic import, including lands held under occupation licence, or the licence or the holder thereof" ^[F337] .

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

There are two features which point in favour of the view that the Mitchellton Pastoral Leases were true leases in the traditional common law sense and, thus, conferred rights of exclusive possession. The first is the language of the Act and of the Leases. In this regard, the use of the words "demise", "lease" and derivatives of the word "lease" in the statutory provisions concerned with pastoral leases and in the Leases themselves, are to be noted. Similarly, it is to be observed that s 6(1) of the Act speaks of a "demise for a term of years", "demise" being a word traditionally used to create a leasehold estate ^[F338] . Moreover, the word "lease" and the expression "demise for a terms of years" are used not only in relation to pastoral leases, but also in connection with agricultural holdings. However, it will later appear that there is no sound basis for assuming that they necessarily have the same meaning when used in relation to the various different holdings permitted by the Act.

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

Ordinarily, words which have an established meaning at common law are construed as having the same meaning in a statute unless there is something in the words or the subject-matter of the statute to indicate otherwise. This is but an instance of the general rule that statutes are not to be construed as altering common law principles unless that is clearly intended. Thus, in American Dairy Queen (Qld) Pty Ltd v. Blue Rio Pty Ltd ^[F339] , where the question arose whether the 1962 Act precluded the right of a sub-lessee to transfer or mortgage its interest in a lease of an area reserved under Pt XI of that Act ^[F340] , Mason J observed ^[F341] :

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

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

It is well settled that the question whether an instrument creates a lease or a license is a question of substance not one of language ^[F342] . It is also well settled that it is a question to be answered, at least in the first instance, by asking whether the instrument in question confers a right of exclusive possession ^[F343] . These principles of interpretation are equally applicable in the construction of a statute concerned with a particular type of holding not known, as such, to the common law, but devised to suit the peculiar conditions of the Australian colonies. Thus, the word "lease" and the expression "demise for a term of years" cannot, of themselves, provide a basis for holding that a pastoral lease under the 1910 Act conferred a leasehold estate, as understood by the common law and, thus, conferred a right of exclusive possession. Rather, the search must be for indications within the Act that it was intended that pastoral leases should confer that right.

Because it is necessary to look for indications within the Act to ascertain the estate or interest intended to be conferred by a pastoral lease and, indeed, by a lease of any of the holdings permitted by the 1910 Act, there is no basis for assuming that "lease" and "demise for a term of years" bear precisely the same meaning when used in relation to each of those different holdings. And for that reason, also, it would be wrong to place over-much reliance on the 1910 Act's apparent distinction between a lease and a license. Particularly is that so in a statutory context in which an occupation license with respect to pastoral land may be readily distinguishable from a pastoral lease by reason of the short term nature of the license ^[F344] .

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

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

A third difficulty with attributing the features of common law leases to the holdings described as "pastoral leases" in the 1910 Act is that, at least in one significant respect, the Act prescribes a quite different feature. As the common law stood in Queensland until 1975, a leasehold estate vested only on entry into possession ^[F345] . In contrast, s 6(2) of the Act provided that it was the making of a grant in the prescribed form which operated to convey and vest the interest thereby granted.

Finally, there is the difficulty of construing "lease" in the 1910 Act as the equivalent of a lease at common law in a context in which the Act clearly used the word "lease" to refer to something quite foreign to the common law conception of a lease. At common law, a lease is normally a demise for a term of years. However the 1910 Act authorised the grant of perpetual leases which, as already indicated, were expressed to be "leases in perpetuity", an expression which is unknown to the common law and which cannot possibly take its meaning from it ^[F346] .

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

The strongest indication that a pastoral lease granted under the 1910 Act did not confer a right of exclusive possession is to be found in those provisions of the Act conferring rights on persons authorised in that behalf to enter upon land the subject of a pastoral lease to remove timber, stone, gravel, clay, guano or other material ^[F347] , denying the lessee the right to ringbark, cut or destroy trees ^[F348] and also denying the lessee power to restrict authorised persons from cutting or removing timber or material within the holding ^[F349] . There is a similar indication in the provision permitting others to depasture stock if a stock route or road passed through the holding ^[F350] . And, of course, there were the reservations in the Leases as required by the prescribed form of lease. In particular, there were the identical reservations in both Leases of "the right of any person duly authorised in that behalf ... at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same" (emphasis added).

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

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

Given that the words "lease" and the expression "demise for a term of years" do not, of themselves, indicate that pastoral leases granted pursuant to the 1910 Act conferred a right of exclusive possession and given, also, the indications in the Act to the contrary, the question whether they conferred such a right is concluded in favour of the continued existence of native title rights by application of the rule of construction identified in Mabo [No 2]to which some reference has already been made ^[F351] . That rule is that general legislation with respect to waste lands or Crown land "is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title" ^[F352] .

As Deane J and I explained in Mabo [No 2]the rule to which reference has just been made is not a special rule with respect to native title; it is simply a manifestation of the general and well settled rule of statutory construction which requires that "clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation" ^[F353] . Whether the rule be stated generally or by reference to native title rights, it dictates the conclusion that, whilst the grant of a pastoral lease under the 1910 Act certainly conferred the right to occupy land for pastoral purposes and s 204 conferred the right to bring action for the removal of persons in unlawful occupation, a pastoral lease did not operate to extinguish or expropriate native title rights, as would have been the case, had it conferred a right of exclusive possession.

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

It follows from the conclusion that the grant of a pastoral lease under the 1910 Act did not confer a right to exclude native title holders and, thus, did not confer a right of exclusive possession that the Mitchellton Leases were not true leases in the traditional common law sense, and, thus, did not operate to vest a leasehold estate. As a reversionary interest only arises on the vesting of a leasehold estate ^[F354] , there is no basis for the contention that, on the grant of the Mitchellton Leases, or, more accurately, on the grant of the first Mitchellton Lease, the Crown acquired a reversionary interest, as that notion is understood by the common law, and its radical title was thereby expanded to full beneficial ownership.

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

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

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

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

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

The Holroyd land

The land the subject of the Holroyd Pastoral Lease ("the Holroyd land") is also in the District of Cook. It is further north and to the east of the Mitchellton land and about 24 miles west of Coen. It covers an area of approximately 1,120 square miles ^[F355] or 2,830 square kilometres and extends north and east from the Holroyd River.

Dealings with the Holroyd land

The Holroyd land was declared open for pastoral lease on 8 June 1944 ^[F356] . On 8 February 1945, Marie Stuart Perkins was granted a "Lease of Pastoral Holding under Part III, Division I, of the Land Acts, 1910 to 1943" for a term of 30 years from 1 October 1944 ("the first Holroyd Lease"). It was the subject of a number of transfers. During the term of that lease, the 1910 Act was repealed and the 1962 Act enacted.

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

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

Save that it refers to the Holroyd Pastoral Lease, the question asked of the Holroyd land, question 1B, is the same as question 1C, the question asked of the Mitchellton Pastoral Leases. And save that his Honour was dealing with one lease, not two, Drummond J answered question 1B in the same manner as he answered question 1C ^[F357] .

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

The terms of the Holroyd Pastoral Lease

The Holroyd Pastoral Lease is expressed to be a "Lease of Pastoral Holding under Part VI, Division I, of the Land Act 1962-1974". It is in a form similar to that of the Mitchellton Pastoral Leases. It recites that the grantees were entitled to a lease of the Holroyd land pursuant to Pt VI, Div I of the 1962 Act ^[F358] . It is expressed to operate as a "Demise and Lease" made in consideration of an amount "paid for a full year's rent, and of the rent [t]hereby reserved". It is not expressed to be granted solely for pastoral purposes.

The Lease is expressly made subject to the conditions and provisoes in Pt III, Div I of the 1962 Act and subject also to the Mining Act 1968-1974 (Q) and the Petroleum Acts1923to1967 (Q) and regulations made under those three Acts. It contains reservations in similar terms to those in the Mitchellton Pastoral Leases, including a reservation of "the right of any person duly authorised in that behalf by the Governor of Our said State in Council at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same".

The Holroyd Pastoral Lease also contains the following special conditions:

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

(a)

Construct Manager's residence, quarters for five (5) men and a shed (machinery shed, store, workshop, etc);

(b)

Construct an airstrip to Department of Civil Aviation standard for mail service and flying doctor service;

(c)

Erect ninety (90) miles of internal fencing;

(d)

Erect 1 set of main yards and dip;

(e)

Construct in the melonhole country three (3) earth dams of not less than 3,060 cubic metres (4,000 cubic yards) capacity each;

(f)

Sow at least 40.5 hectares (100 acres) to Townsville Style as a seed production area; and

(g)

Enclose the holding with a good and substantial fence."

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

Special conditions of the Holroyd Pastoral Lease

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

General provisions of the 1962 Act bearing on Pastoral Leases

The 1962 Act was amended from time to time and repealed in 1995 ^[F359] . The amendments do not bear on the question whether the Holroyd Pastoral Lease conferred a right of exclusive possession. It is therefore convenient to approach that question by reference to the 1962 Act in its unamended form. The long title of that Act was "An Act to Consolidate and Amend the Law relating to the Alienation, Leasing and Occupation of Crown Land" and it is not surprising, therefore, that several of its provisions are or are substantially to the same effect as those of the 1910 Act.

In terms only slightly different from those in the 1910 Act, s 6(1) of the 1962 Act authorised the Governor-in-Council, subject to that latter Act, to "grant in fee-simple, or demise for a term of years or in perpetuity, or deal otherwise with any Crown land within Queensland". "Crown land" was defined in terms which were identical to those found in the 1910 Act ^[F360] . By s 6(2) of the 1962 Act it was necessary that a grant or lease be subject to the reservations and conditions authorised or prescribed by that or any other Act and that it be made in the prescribed form. It was also provided in s 6(2) that, when so made, the grant or lease was "valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated". The Holroyd Pastoral Lease is in the form prescribed as at the date of its grant, which form provided for reservations in the terms incorporated in the Lease ^[F361] .

The Act provided for the grant of "occupation licenses" over pastoral land ^[F362] , pastoral leases ^[F363] , leases of stud holdings ^[F364] and the sale and lease of various agricultural holdings ^[F365] . No relevant distinction is to be drawn between occupation licenses granted under the 1910 Act and those granted pursuant to the 1962 Act. However, the provisions of the 1962 Act with respect to pastoral leases differ from those of the 1910 Act as it stood when the Mitchellton Pastoral Leases were granted for the reason, among others, that provision was made for the grant of pastoral leases under three different forms of tenure, namely, pastoral holding, pastoral development holding and preferential pastoral holding ^[F366] . As appears from its terms, the Holroyd Pastoral Lease is a lease of a pastoral holding.

The chief difference between the lease of a pastoral holding and other pastoral holdings under the 1962 Act is that additional conditions attached to leases of pastoral development holdings and preferential pastoral holdings. A lease of a pastoral development holding could only be granted if "the cost of developing the land [would be] abnormally high, and [if] developmental conditions [were] imposed calculated to improve the carrying capacity and productivity of the land and to develop the public estate" ^[F367] . A preferential pastoral holding, like its counterpart under the 1910 Act, was subject to a requirement of personal residence ^[F368] . Similarly, on the conversion of a pastoral holding to a stud holding, as permitted by s 66(1) of the 1962 Act ^[F369] , the lessee came under an additional obligation to provide the Minister with information with respect to the stud ^[F370] and to satisfy conditions associated with its running ^[F371] .

The 1962 Act also effected a number of changes with respect to agricultural holdings. It allowed for only four agricultural holdings, namely, agricultural farm holdings, perpetual leases, settlement farm and grazing selections, with the latter having two sub-categories, namely, grazing homestead selections and grazing farm selections ^[F372] . As with perpetual leases under the 1910 Act, a perpetual lease under the 1962 Act was described in s 127(1) of that latter Act as "a lease in perpetuity".

The 1962 Act provided for the automatic conversion of some holdings under earlier Acts to holdings under that Act ^[F373] . As well, provision was made for lessees of some agricultural holdings under earlier Acts to apply for their conversion to holdings under the later Act ^[F374] . The 1962 Act also contained specific provisions for the continuation of some unconverted holdings ^[F375] . However and leaving aside s 66(1) which permitted certain holdings, including pastoral holdings, to be converted to stud holdings ^[F376] , pastoral leases granted under earlier Acts were not converted, but continued by s 4(2) of the Act and, by that sub-section, deemed to have been granted under the 1962 Act. Subject to provisoes which are not presently relevant, s 4(2) provided for their continuation in these terms:

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

The 1910 Act was one of the repealed Acts ^[F377] .

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

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

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

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

Unlike the 1910 Act, the 1962 Act provided for the renewal of certain leases prior to their expiry ^[F378] . Application for early renewal had to be considered by the Land Administration Commission, which, pursuant to s 156(1), was required to investigate, amongst other things:

" ...

(b)

the public interests, the interest of the lessee concerned, and how best the land [might] be brought to its maximum production, increased population [might] be sustained, and the public estate [might] be developed;

...

(d)

such other factors and circumstances as the Commission deem[ed] fit and proper".

By s 157(1) of the Act, the Minister was given "absolute discretion" to refuse or approve an application for early renewal and to approve renewal "either unconditionally or subject to such conditions as, in his opinion, [were] calculated to develop the public estate" ^[F379] . It was pursuant to these provisions that the Holroyd Pastoral Lease was granted and made subject to the special conditions earlier mentioned.

Another point of distinction between the 1910 Act and the 1962 Act is that the 1962 Act made express provision for entry into occupation and possession of all holdings under the Act. If there were improvements on the land, the Act provided that all selectors, lessees (which, of course, included pastoral lessees) and purchasers were "entitled to occupy, and [might] enter into possession" upon payment of the prescribed or provisional value of the improvements or sooner with the written permission of the Minister ^[F380] . If there were no improvements, the grantee of a pastoral lease was "entitled to occupy and [might] enter into possession ... on and from the date of acceptance of his application" ^[F381] .

The 1962 Act provided for the early surrender of leases ^[F382] and for forfeiture for various causes, including non payment of rent ^[F383] and "breach of any condition to which [the lease was] or [was] deemed to be subject" ^[F384] . Sub-section (1) of s 299 provided that, in the event of forfeiture or early determination, "unless in any particular case other provision [was] made in that behalf by [the 1962] Act, the land [should] revert to Her Majesty and become Crown land, and [might] be dealt with under [the] Act accordingly". In that respect, the 1962 Act corresponded with the 1910 Act. However, s 299(2) provided:

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

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

Statutory conditions with respect to Pastoral Leases

As well as the special conditions to which reference has been made, the Holroyd Pastoral Lease is expressed to be subject to the conditions and provisoes specified in Pt III, Div I of the 1962 Act. By s 50(2) in that Part, the Minister might specify conditions in the notification that land was open for lease as a pastoral holding, including conditions with respect to boundary fencing, improvements, developmental works and the eradication of noxious plants. Additional conditions might be specified in the opening notification for pastoral development holdings and preferential pastoral holdings ^[F385] . The Holroyd Pastoral Lease was granted in consequence of an application for renewal under s 155 of the 1962 Act, not pursuant to an opening notification. Thus, it is not subject to conditions which might otherwise have attached by operation of s 50 ^[F386] .

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

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

Provisions of the 1962 Act allowing for exemption from conditions

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

The second relieving or exempting provision was that contained in s 64(3), to which some reference has already been made. By that sub-section, "[t]he Minister, in his discretion, [might] exempt a lessee from performing any condition of fencing imposed upon the lease of a pastoral lease and [might] alter or cancel such exemption". The combined effect of the concluding paragraph of that sub-section and of s 111 of the Act ^[F387] was that the exemption might be limited as to time and circumstances and that, once granted, it could only be cancelled or altered by the giving of six months' notice to that effect.

Specific provision was also made for relief against forfeiture, including forfeiture of pastoral leases. Although provision was made in s 297 for proceedings to determine whether a lease was liable to be forfeited, an overriding discretion was reserved to the Minister in these terms ^[F388] :

"If upon the final decision of the matter any such liability to forfeiture is established the Minister may in his discretion-

(a)

recommend to the Governor in Council that the lease be forfeited; or

(b)

waive the liability to forfeiture subject to such terms and conditions as he thinks fit to impose upon the lessee."

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

As with the 1910 Act, the 1962 Act made provision denying the lessees of various holdings, including the lessee of a pastoral holding, the right, without prior written permission, to destroy any tree on the land the subject of the lease ^[F389] . There was no provision in the 1962 Act akin to ss 199 and 200 of the 1910 Act which allowed for others to be licensed to take timber from land held under a pastoral lease. At all relevant times, however, the Forestry Act 1959 (Q) provided for the issue of licenses to get forest products from various holdings, including pastoral holdings, and conferred full power of entry upon persons so licensed ^[F390] .

Finally, it should be noted that persons travelling stock on a stock route passing through a pastoral lease were entitled to depasture the stock on the land on the same terms and conditions as those applicable under the 1910 Act ^[F391] .

The interest conferred by the Holroyd Pastoral Lease

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

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

Another difference between the 1910 and the 1962 Acts which provides a measure of support for the view that the lease of a pastoral holding under that latter Act confers a right of exclusive possession is that, as with other holdings under the 1962 Act, the lessee of a pastoral holding was required, on forfeiture or early termination, to give possession to the Crown. Notwithstanding the terms of s 299(1) which, in the event of forfeiture or early termination of a lease, assimilate the land involved to what, for convenience, may be referred to as unalienated Crown land, the terms of s 299(2), requiring that possession be given to the Crown, point in favour of a statutory interest on forfeiture or early termination extending beyond radical title. Again, if that is the effect of s 299(2), it does not establish that a pastoral lease conferred a right of exclusive possession and accordingly does not establish the existence of a traditional leasehold estate ^[F392] ; neither, however, does it provide support for the contrary view, as did the absence of a reversionary interest extending beyond radical title in the case of the Mitchellton Pastoral Leases.

Other provisions which are capable of giving some support to the view that a lease of pastoral holding under the 1962 Act conferred a right of exclusive possession are those allowing for a grant to be made subject to conditions for the erection of boundary fences and the carrying out of improvements and developmental works. As earlier indicated, such conditions might be imposed pursuant to a requirement to that effect in the opening notification ^[F393] , or, as here, pursuant to conditions imposed by the Minister on renewal prior to expiry. And, of course, the question of early renewal in the case of pastoral and other renewable leases, was dependent on a consideration, amongst other things, of "how best the land [might] be brought to its maximum production, increased population [might] be sustained, and the public estate ... developed" ^[F394] . Consideration of those matters might well result in conditions suggestive of a right of exclusive possession.

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

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

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

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

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

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

Orders

I agree with the orders proposed by Toohey J.