Wik Peoples and Thayorre People v. Queensland & others
(1996) 187 CLR 171 ALJR 173
141 ALR 129
(Judgment by: Gummow 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
Gaudron
McHugh
GummowKirby 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).
Judgment date: 23 DECEMBER 1996
CANBERRA
Judgment by:
Gummow J
Introduction
On 30 June 1993, that is to say before the enactment of the Native Title Act 1993 (Cth) ("the Native Title Act") [F395] , the Wik Peoples instituted in the Federal Court of Australia a proceeding in which they sought to establish the existence of certain native title rights over an area of land in North Queensland. The State of Queensland was first respondent and the Commonwealth of Australia second respondent. The Thayorre People were later joined as respondents. They cross-claimed, seeking similar relief in respect of lands that, in part, overlapped those the subject of the claim of the Wik Peoples.
The litigation stands outside the system for the determination of native title claims established by the Native Title Act. However, it raises issues which may have importance for the operation of that statute. The expressions "native title" and "native title rights and interests" are defined in s 223(1) thereof as meaning communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where, among other things, "the rights and interests are recognised by the common law of Australia". If acts done before the commencement on 31 October 1975 of the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act") were effective to extinguish or impair native title, the Native Title Act does not undo that result. In the joint judgment of six members of this Court in Western Australia v. The Commonwealth (Native Title Act Case) [F396] , it was said:
"An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act."
The present litigation is not concerned solely with steps taken under the prerogative. Prerogative powers were supplanted in Queensland by statute as a result of constitutional development in the second half of the nineteenth century. As will appear in the course of these reasons, the issues on these appeals turn upon the proper construction of The Land Act 1910 (Q) ("the 1910 Act") and The Land Act 1962 (Q) ("the 1962 Act"), and upon the terms of the grants of pastoral leases thereunder. The 1962 Act repealed the 1910 Act. The 1962 Act has now been repealed by the Land Act 1994 (Q).
I approach these issues of construction upon the assumption, adverse to the Wik Peoples and the Thayorre People, that there does not exist and did not exist when the 1910 Act and the 1962 Act were enacted, any fiduciary relationship between them and the State of Queensland. The Wik Peoples and the Thayorre People submitted that such relationships existed and the duties arising thereunder militated against there being any legislative intention to extinguish native title. I put fiduciary duty issues to one side.
Rather, I begin with the proposition that for a statute such as the 1910 Act or the 1962 Act to impair or extinguish existing native title or to authorise the taking of steps which have that effect, it is necessary to show, at least, the intention, "manifested clearly and plainly", to achieve that result. That is how the point was expressed in the joint judgment of six members of the Court in the Native Title Act Case [F397] .
In this context, "intention" does not refer to any particular state of mind of the legislators, who may not have adverted to the rights and interests of the indigenous inhabitants [F398] . Moreover, statute law may be the result of a compromise between contending factions and interest groups and of accommodations between and within political organisations which are not made public and cannot readily be made apparent to a court [F399] . To speak here of "intention" will seldom assist and may impede the understanding of the effect of the legislation in question, unless it be kept in mind that what is involved is the "intention" manifested by the legislation [F400] . As Holmes put it, "[w]e do not inquire what the legislature meant; we ask only what the statute means" [F401] . It will be necessary later in these reasons to consider the particular criteria by which the manifestation of legislative intention is to be assessed in this case.
The Federal Court proceedings
The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time [F402] . At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein [F403] . In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence [F404] .
It is at this threshold that these appeals present a significant consideration. There has been no trial of issues going to the establishment of native title and the ascertainment of its content. Yet the effect of the decision at first instance was to foreclose the occasion for such a trial and to rule against the claims of the Wik Peoples and the Thayorre People. This state of affairs has come about as follows.
A judge of the Federal Court (Drummond J) ordered [F405] a number of questions for separate decision [F406] . Questions 1B, 1C, 4 and 5 and the answers given by Drummond J are set out in the judgment of Brennan CJ. The Thayorre People were granted leave to appeal to the Full Court of the Federal Court against the determination of Question 1C. This related to two instruments for a grant of pastoral leases (the "Mitchellton Pastoral Leases") dated respectively 25 May 1915 and 14 February 1919 and issued pursuant to the 1910 Act [F407] . Each pastoral lease was for a term of 30 years. However, the first was forfeited in 1918 for non-payment of rent and the second was surrendered in 1921. There was no entry into occupation by the grantees of either of these pastoral leases. They were for an area of 535 square miles, bounded partly by the Gulf of Carpentaria, the Mitchell River and the Edward River. In 1921 the Chief Protector of Aboriginals reported that "there are about 300 natives roaming this country". In that year, by Order in Council made under the power conferred by s 180 of the 1910 Act, the land in question was reserved and set apart for use of the Aboriginal inhabitants of the State. The creation of such a reserve did not extinguish any native title which then still subsisted [F408] .
The Wik Peoples obtained leave to appeal to the Full Federal Court, not only in respect of the answer to Question 1C but in respect of Question 1B. This concerned a lease of an area of 2,830 square kilometres (partly bounded by the Holroyd River) as a pastoral holding under the 1962 Act ("the Holroyd River Pastoral Lease"). The carrying capacity in fair seasons was one beast per 60 acres. The pastoral lease was granted, with effect for 30 years from 1 January 1974, by instrument dated 27 March 1975 (some seven months before the commencement of the Racial Discrimination Act) and is still current [F409] .
Leave also was granted to the Wik Peoples to appeal to the Full Court in respect of the answers to Questions 4 and 5. These concerned certain claims against the State of Queensland, the first respondent; Comalco Aluminium Ltd ("Comalco"), the fourth respondent; and Aluminium Pechiney Holdings Pty Ltd ("Pechiney"), the fifth respondent. That branch of the litigation involves discrete issues. I agree it should be dealt with as proposed by Kirby J and for the reasons given by his Honour.
The Questions concerning the Holroyd River Pastoral Lease and the Mitchellton Pastoral Leases were so framed as to ask whether, if at any material time any native title existed in respect of the land the subject of those pastoral leases,the grantof those pastoral leasesnecessarilyextinguished all incidents thereof. The form in which the issue is presented, namely necessary extinguishment by grant, is significant. The primary judge answered the questions in the affirmative as to the Holroyd River Pastoral Lease and the first of the Mitchellton Pastoral Leases. However, as I have indicated, this was without any prior determination as to whether, in fact, any native title was in existence at the respective times of grant of those pastoral leases.
By orders of this Court made under s 40 of the Judiciary Act 1903 (Cth), each of the pending appeals to the Full Federal Court by the Wik Peoples and the Thayorre People was removed into this Court.
My conclusion is that the primary judge erred in determining that the grants of pastoral lease under the 1910 Act and the 1962 Act necessarily had the effect of extinguishing all incidents of any native title which might have then subsisted in the Wik Peoples or the Thayorre People. Rather, his Honour should have determined that none of these grants clearly, plainly and distinctly authorised activities and other enjoyment of the land which necessarily were inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants. This would leave for future determination at trial the questions whether such native title subsisted at material times and still subsists and, if so, the incidents of such native title.
The legal framework
In asking "what the statute means" [F410] of any provision of the 1910 Act or the 1962 Act, regard is to be had not only to the other provisions of the same statute but also to such matters as other statutesin pari materiaand the existing state of the law [F411] . The phrase "the existing state of the law" embraces the then understanding of the common law. In this way there is discerned the state of affairs for the remedy or establishment of which the statute was designed [F412] .
At the enactment of the 1910 Act as at that of the 1962 Act, a basic principle of land titles in Australia was that identified, with some reference to New South Wales colonial history before the establishment of self-government, by Windeyer J in Randwick Corporation v. Rutledge. His Honour said [F413] :
"On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. The early Governors had express powers under their commissions to make grants of land. The principles of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning - all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne. The colonial Act, 6 Wm IV No 16 (1836), recited in its preamble that the Governors by their commissions under the Great Seal had authority 'to grant and dispose of the waste lands' - the purpose of the Act being simply to validate grants which had been made in the names of the Governors instead of in the name of the Sovereign. And when in 1847 a bold argument, which then had a political flavour, challenged the right of the Crown, that was to say of the Home Government, to dispose of land in the colony, it was as a legal proposition firmly and finally disposed of by Sir Alfred Stephen CJ:The Attorney-General v. Brown [F414] ."
Stephen CJ had emphasised in Brownthat, at the time of making a grant of land to a subject, the Crown must be presumed to have a title to that land and that this original title provides the foundation and source of all other titles. Estates in land in the colony were held in free and common socage. They were not allodial, that is to say, they were not a species of estate which existed outside the feudal system and were held independently and not of any superior. All interests in land in New South Wales had been granted directly by the Crown. In contrast to the tenurial system as it had been applied in England, in the colony estates were not held by any intermediate or mesne lord.
Attorney-General v. Brownconcerned a grant made in 1840. Until as late as 1842 there was no statutory restriction upon the alienation by the Crown of lands in the Australian colonies. The phrase "waste lands" had as its primary meaning lands which were uncultivated rather than profitless [F415] . The management and control of colonial waste lands (ie, lands not yet granted from the Crown in fee simple, or for an estate in freehold, or for a term of years, and not dedicated and set apart for some public use [F416] ) was by executive fiat [F417] .
Until the mid-nineteenth century Imperial policy with respect to Australia was opposed to Colonial control in such matters. There was no invariable rule that a colony enjoyed its own land revenue [F418] . To the contrary, the Imperial authorities saw "unsettled" land as the source of revenue to recoup the outlays in the operation of the colonial administrations and to provide for further emigration from the United Kingdom and other development. After 1840, the Colonial Secretary was advised by the Colonial Lands and Emigration Commissioners. In 1842 this body received by statute [F419] powers with respect to the administration of the proceeds of sale of waste lands. Gross proceeds of such sales were to be applied to the "public Service" of the colony in which the land was situated and one-half was to be appropriated to the purposes of emigration [F420] . An element of representative government was provided by the Australian Constitutions Act 1842 (Imp) [F421] , but s 29 excluded from the competence of the New South Wales Legislative Council any law which interfered in any manner with the sale of Crown lands in the colony or with the revenue arising therefrom [F422] .
The Australian Constitutions Actdid not provide a constitutional settlement of any duration. Queensland was separated from New South Wales in 1859 and with the arrival of representative government the Imperial authorities relinquished control over Crown lands in these colonies. Imperial statute, s 2 of the New South Wales Constitution Act 1855 [F423] , vested in the New South Wales legislature the entire management and control of the waste lands belonging to the Crown in New South Wales and the power of appropriation of the gross proceeds of the sales of any such lands [F424] . Then s 30 of the Constitution Act 1867 (Q) ("the 1867 Act") [F425] provided that it was to be lawful for the legislature of that colony to make laws for regulating the sale, letting, disposal and occupation of waste lands of the Crown within Queensland. With exceptions not presently material, s 40 stated:
"The entire management and control of the waste lands belonging to the Crown in the said Colony of Queensland and also the appropriation of the gross proceeds of the sales of such lands and of all other proceeds and revenues of the same from whatever source arising within the said colony including all royalties mines and minerals shall be vested in the Legislature of the said colony.
..."
The result was to withdraw from the Crown, whether represented by the Imperial authorities or by the Executive Government of Queensland, significant elements of the prerogative. The management and control of waste lands in Queensland was vested in the legislature and any authority of the Crown in that respect had to be derived from statute [F426] .
There followed the enactment in Queensland and elsewhere of statutes designed to provide for conditions unknown in England and to meet local wants in a fashion unprovided for in England. First, there was the growth of a statutory system of title by registration, identified by the phrase "the Torrens system", whereby statute makes the certificate of title conclusive evidence of its particulars and protects the registered proprietor from actions to recover the land, except in specifically described cases [F427] .
Then there was the creation by statute of what Griffith CJ called "new forms of tenure" [F428] . This legislative activity illustrated the general propositions that statute may create interests in property which are unknown to the common law [F429] and that "there is nothing higher among legal rights than a right created by statute" [F430] . To these new forms of tenure the terms "lease" and "licence" applied in a new and generic sense [F431] . The legislation teemed with "proverbial incongruities" [F432] and Higgins J used the term "quasi-Crown lands" [F433] to identify those areas as to which there had been conferred a tenure short of a fee simple. Of the operation of that system in New South Wales in 1905, that is to say shortly before the enactment of the 1910 statute in Queensland, A C Millard and G W Millard wrote [F434] :
"The whole of the numerous and elaborate provisions of the Acts for the alienation and occupation of Crown lands are examples of the legislation which has been necessary to meet the peculiar conditions and wants of the colony. Nothing corresponding to the body of laws thereby created is found in English law, there being nothing in England analogous to the vast area of unoccupied lands in this colony, of which the Crown is the nominal, and the public the real owner, the settlement of which is necessary to the welfare and progress of the country."
The comparable situation in Queensland later was described as follows [F435] :
"The Crown leasehold principle, introduced during the imperial period as a device in favour of the squatters, was developed in (literally) scores of Queensland statutes after the Separation in 1859. The undoubted constitutional right of the Queensland Parliament to create whatever tenures it thinks fit and to attach to them whatever incidents it thinks fit, has been exercised actively. In Queensland, as Millard has correctly stated in respect of New South Wales, the result is 'a bewildering multiplicity of tenures - many of them exhibit only trifling differences in detail' [F436] .
Gone is the simplicity of the law concerning modern English tenures; gone is the senile impotence of the emasculated tenurial incidents of modern English Land Law. In Queensland, as in the rest of Australia, we are in the middle of a period in which the complexity and multiplicity of the law of Crown tenures beggars comparison unless we go back to the early mediaeval period of English Land Law."
Throughout this period it was assumed that the powers of the colonial and then of the State legislatures to create whatever tenures they thought fit, and with the attachment of such incidents as statute provided, were exercised in an environment where the local common law recognised no allodial species of estate which was held independently of any grant by the Executive Government or of any grant by or pursuant to statute. That this was a false assumption was demonstrated in 1992 by the decision of this Court in Mabo [No 2] [F437] .
That decision confirmed native title rights to certain lands in two Torres Strait islands which had been annexed to the colony of Queensland in 1879 [F438] . On remitter to the Supreme Court of Queensland, findings of fact were made concerning the occupation of the Murray Islands by the Meriam People, Melanesians who probably came to settle the islands from Papua New Guinea [F439] . This Court granted declaratory relief as to the subsistence of the native title of the
Meriam people [F440] . Nevertheless,Mabo [No 2]must be taken, particularly since the further decisions with respect to Western Australia in the Native Title Act Case [F441] , to establish and entrench in the common law of Australia broader and more fundamental propositions. They include the holding that:
"the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands".
This is the formulation in the Preamble to the Native Title Act, and thus supplies a foundation upon which the Parliament enacted the Native Title Act. The Preamble also recites the holding in Mabo [No 2]that:
"native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates".
The extinguishment of existing native title readily is seen as a consequence of a grant in fee simple. That is because the fee simple, as the largest estate known to the common law, confers the widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found upon it. No different result may follow where what is asserted against native title is a lease for a term. In particular, subject to the constraints imposed by the law of waste, at common law the lessee ordinarily has powers of use and enjoyment with respect to certain profits or produce derived from the land. Under the common law as developed in England, this included game and otherferae naturaecaptured within the limits of the land [F442] and a general property in underwood and trees [F443] .
In these appeals, the fundamental issue does not concern the extinguishment of native title by grant of a fee simple or of a leasehold interest as known to the common law. Rather, it concerns the impact upon native title of statute and ofsui generisinterests created thereunder. The dispute is whether the grants of the Mitchellton Pastoral Leases, pursuant to the 1910 Act, and of the Holroyd River Pastoral Lease, pursuant to the 1962 Act, were, in the sense of the Preamble to the Native Title Act, valid government acts inconsistent with the continued existence of any native title rights and interests which subsisted when the grants were made. Those statutory grants were not of any freehold estate, being, indeed, grants of interests that weresui generis.
English land law
Traditional concepts of English land law, although radically affected in their country of origin by the Law of Property Act 1925 (UK), may still exert in this country a fascination beyond their utility in instruction for the task at hand. So much became apparent as submissions were developed on the hearing of these appeals. The task at hand involves an appreciation of the significance of the unique developments, not only in the common law, but also in statute, which mark the law of real property in Australia, with particular reference to Queensland. I have referred above to some of these developments. There also is the need to adjust ingrained habits of thought and understanding to what, since 1992, must be accepted as the common law of Australia.
Further, those habits of thought and understanding may have lacked a broad appreciation of English common law itself. For example, there is no particular reason to be drawn from English land law which renders it anomalous to accommodate in Australian land law notions of communal title which confer usufructuary rights. There are recognised in England rights of common which depend for their establishment upon prescription and custom. An example is the common of pasture in gross enforceable by action by one commoner on behalf of that commoner and the other commoners [F444] . Moreover, the extinguishment of the rights of commoners may be effected by statute. In the century before the enactment in England of the Inclosure Act 1845 (UK) [F445] , nearly 4,000 private inclosure Acts had been passed [F446] .
Nor, in a system where, subject to statute, land ownership depends upon principles derived from the English common law is there any necessary conceptual difficulty in accommodating allodial to tenurial titles. The point was made as follows by Brennan J in Mabo [No 2] [F447] :
"Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant."
Blackstone contrasted as follows the term "allodial" with the term "fee" [F448] :
"The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction toallodium; which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hathabsolutum et directum dominium , and therefore is said to be seised thereof absolutelyin dominico suo, in his own demesne. Butfeodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides."
In Blackstone's time, it was accepted that allodial titles preceded the development of the feudal system after the Norman Conquest.
In the same period in which the existence of allodial title was denied to the colony of New South Wales by the decision in Brown, it was re-emerging elsewhere in the common law world. Quite apart from the treatment in the United States of native title, the American Revolution was followed in several of the States by legislative repudiation of the tenurial system as the ultimate root of real property title. For example, in New York the legislature abolished all feudal tenures of every description, with all their incidents, and declared that all lands within that State were allodial [F449] . Of the developments in the United States, Chancellor Kent wrote in 1828 [F450] :
"Thus, by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen."
The significance of Mabo [No 2]
In this decision, the Court declared the content of the common law upon a particular view which now was taken of past historical events. The significance this has for common law techniques of adjudication may be seen in the form taken by the submissions on the present appeals. The first matter of significance concerns what is sometimes identified as the declaratory theory of the common law. The second is related to the first. It concerns the meaning to be given, when interpreting statutes such as the 1910 Act and the 1962 Act, to the phrase, referred to earlier in these reasons, "the existing state of the law".
There have been few adherents in recent times to a declaratory theory in an absolute form. For one thing, the principles and doctrines of equity were never "like the rules of the Common Law, supposed to have been established from time immemorial"; rather, they were "established from time to time - altered, improved, and refined from time to time" [F451] . For another, to use the words of Windeyer J, "[l]aw is to be accommodated to changing facts" [F452] . Perhaps the general understanding (with its emphasis upon the evolutionary and the functional [F453] ) was expressed by Lord Radcliffe in 1956 in his speech in Lister v. Romford Ice and Cold Storage Co Ltd [F454] :
"No one really doubts that the common law is a body of law which develops in process of time in response to the developments of the society in which it rules. Its movement may not be perceptible at any distinct point of time, nor can we always say how it gets from one point to another; but I do not think that, for all that, we need abandon the conviction of Galileo that somehow, by some means, there is a movement that takes place."
Here is a broad vision of gradual change by judicial decision, expressive of improvement by consensus, and of continuity rather than rupture. Yet much of the common law is subjected to statutory modification, often drastic. The task of the courts then is to construe that statutory change to the common law, employing common law methods and techniques of interpretation and adjudication [F455] .
Movement also may plainly be perceptible, and there may be an explicit change of direction, where, in the perception of appellate courts, a previously understood principle of the common law has become ill adapted to modern circumstances. The point was made as follows by Mason J in State Government Insurance Commission v. Trigwell [F456] :
"If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances. But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency." [F457]
Again, it may emerge that the rationale of a particular cause of action is the product of a procedural fiction (eg, an implied promise to pay) which should no longer be supported after the demise of the old forms of action [F458] . In those cases, the perceived reason for change stems from alterations in the legal system itself. The procedural operation of the Judicature system may produce similar results [F459] . More simply, upon analysis it may appear that a particular principle (eg, as to the irrecoverability of payments made under a mistake of law) rests upon a dubious foundation in the case law which has not been accepted in this Court [F460] .
Mabo [No 2]was not such a decision. Nor did it rest upon the rejection of a particular common law rule by reason of its basis in particular conditions or circumstances which, whilst once compelling, since have become ill adapted to modern circumstances. Rather, the gist of Mabo [No 2]lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false.
Those assumptions had been made within a particular legal framework which had been developed over a long period. The effect of the British Settlements Act 1887 (Imp) was to empower the Crown to make laws and establish courts not only for possessions acquired by cession or conquest and which lacked a legislature, but also for possessions which had been settled and which lacked a legislature. Previously, settlers had seen their interests as better protected by the classification of a settled colony because that took the local legal structure outside prerogative control [F461] . Settled colonies had been identified by the Privy Council in 1722 as those which had been found "uninhabited" [F462] . This classification was extended to include inhabited territory and in 1828 it was decided that the applicability of the law of those inhabitants to settlers depended upon "the existence of alex loci, by which the British settlers might, without inconvenience, for a time, be governed" [F463] .
That left various questions as to the legal position of the original inhabitants [F464] . These included the operation of the criminal law [F465] . After the adoption in Attorney-General v. Brown [F466] of the doctrine that the original title of the Crown provided the foundation and source of all other land titles, there remained in Australia the question of the extent to which the common law denied all continuity to customary law of Aboriginal peoples with respect to land. No question of native title arose for express decision in Brown.
In 1889 the Judicial Committee decided Cooper v. Stuart [F467] . No question of native title was in issue in that case. However, the reasoning of their Lordships was adverse to any theory of continued native title. The appellant unsuccessfully sought to show that the rule against perpetuities, in so far as it affected the Crown, was operative in New South Wales at the time of an executive grant made by Governor Brisbane in 1823. The Privy Council held that there was no land law or tenure existing at the time of annexation to the Crown. Nevertheless, as an exception to the general and immediate application in New South Wales of English law, the law against perpetuities could not justly and conveniently be applied in New South Wales against the Crown.
As a step in their reasoning, their Lordships declared that the colony of New South Wales had peacefully been annexed to the Crown, being territory "practically unoccupied, without settled inhabitants or settled law" [F468] . Of that proposition it was said in Mabo [No 2] [F469] :
"The facts as we know them today do not fit the 'absence of law' or 'barbarian' theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands."
Thus, it was appropriate to declare in 1992 the common law upon a particular view of past historical events. That view differed from assumptions, as to extent of the reception of English land law, upon which basic propositions of Australian land law had been formulated in the colonies before federation. To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation.
In Canada, the basic legal framework had developed quite differently. In R v. Van der Peet [F470] McLachlin J identified two fundamental principles upon which dealings with the aboriginal peoples were predicated by the common law and those who regulated British (andsemble French [F471] ) settlement of Canada. These were, first, "the general principle that the Crown took subject to existing aboriginal interests in the lands they traditionally occupied and their adjacent waters, even though those interests might not be of a type recognized by British law" and, secondly, these interests "were to be removed only by solemn treaty with due compensation" [F472] .
There remains lacking, at least in Australia, any established taxonomy to regulate such uses of history in the formulation of legal norms. Rather, lawyers have "been bemused by the apparent continuity of their heritage into a way of thinking which inhibits historical understanding" [F473] . Even if any such taxonomy were to be devised, it might then be said of it that it was but a rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts.
At what level of primary fact does one perceive the disappearance of the foundation for native title by reason of the washing away by "the tide of history" of any real acknowledgment of traditional law and real observance of traditional customs? [F474] Again, for example, one might speculate on the significance their Lordships in Cooper v. Stuartmight have attached to the observations of Governor Hutt in 1841 had they been dealing with the position in Western Australia. The Governor wrote from Perth to the Colonial Secretary, Lord John Russell, in accordance with his directions, a report "exhibiting the state of the [A]borigines in Western Australia, and showing what has been done for them in the course of the year preceding". In so doing, the Governor said [F475] :
"They have no particular spots which can be regarded as their haunts, or where they habitually dwell; and though every family has its particular locality or tract of land which it considers its own, yet this seems to be open to the use of all the relations of the family, and from their intermarriages, and consequent wide-spread connexions, except there should be a blood fued [sic] between him and the inhabitants of a particular district, a man may have the privilege of hunting or of ranging for roots over very many miles of country; even the land which an individual may call his own he has no tenacious longing after when usurped by us, except so far as it may afford him the means of subsistence; the moment we clear it for the purposes of agriculture or gardening, it loses its chief value in his eyes; so that an Australian's idea of property in land is limited, it may be said, to its usufructuary value."
The development of an appropriate historical method to some extent has been constricted by habits of thought engendered by the adversarial processes of common law trial. In Air Canada v. Secretary of State for Trade [F476] , Lord Wilberforce emphasised that those processes may, from the imperfections or absence of evidence, produce an adjudication which is not, and is known not to be, the whole truth of the matter. His Lordship observed [F477] :
"[T]he task of the court is to do, and be seen to be doing, justice between the parties ... There is no higher or additional duty to ascertain some independent truth."
From such a foundation, the further elucidation of common law principles of native title, by extrapolation to an assumed generality of Australian conditions and history from the particular circumstances of the instant case, is pregnant with the possibility of injustice to the many, varied and complex interests involved across Australia as a whole. The better guide must be "the time-honoured methodology of the common law" [F478] whereby principle is developed from the issues in one case to those which arise in the next. On the present appeals, this requires close attention to the terms of the 1910 Act and the 1962 Act.
Statutory interpretation
The particular application in Mabo [No 2]of the declaratory theory of the common law has consequences for these appeals. The Court is called upon to construe statutes enacted at times when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been. Moreover, there is an incongruity in the application to the 1910 Act and the 1962 Act of the now established common law doctrine that, in certain circumstances, regard may be had to what is said by the responsible Minister in the course of the passage through the legislature of the Bill for the particular Act in question [F479] . The legislature would have proceeded in such a situation upon a false understanding of the existing law.
The same is true of the "purposive" approach to construction, enshrined in s 14A of the Acts Interpretation Act 1954 (Q). The goal there is the promotion of the general legislative purpose underlying the provision in question by the adoption of a construction which would have that result over one which would not. Moreover, in 1910 and 1962 the legislature would not have been equipped fully to discern any mischief or defect for the remedy of which the statutory provision was appropriate. Finally, the false footing on which the legislature is now seen to have acted inhibits the perception of "the equity of the statute" with consequent significance for the doctrines of illegality founded upon the scope and purpose of the legislation [F480] .
Of course, a statute may operate adversely upon existing legal or equitable rights which, at the time of the enactment, were unknown to the legislature or even could not be known to it. An example is Plimmer v. Mayor, & c, of Wellington [F481] . There, the Judicial Committee held that, upon the view it took of the facts (which commenced in 1848), the appellant by 1856 had acquired, by a species of estoppel, an equitable proprietary interest in certain land. That interest gave a statutory right to compensation upon resumption of the land in question in 1880.
It was in this period that Fry J determined Corporation of Yarmouth v. Simmons [F482] . The case concerned a pier, constructed under statutory authority, which obstructed what was said to have been a previously existing public right of way. Fry J rejected the submission that a public right of way could only have been abrogated by express words in the legislation. His Lordship put the matter as follows [F483] :
"I think that, when the Legislature clearly and distinctly authorize the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right."
The expression "clearly and distinctly" emphasises the burden borne by a party seeking to establish the extinguishment of subsisting rights not by express legislative provision but by necessary implication from the provisions of a statute. The phrase "physically inconsistent" does not suggest the question of inconsistency between rights is answered by regard, as a matter of fact in a particular case, to activities which are or might be conducted on the land. Rather, it requires a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.
This notion of inconsistency includes the effect of a statutory prohibition of the activity in question. It supplies the means for resolution of the issues which arise on these appeals. The decision of Fry J was applied in this Court by McTiernan J in Aisbett v. City of Camberwell [F484] and earlier by Isaacs J in Goodwin v. Phillips [F485] and O'Connor J in Chief Commissioner for Railways and Tramways (NSW) v. Attorney-General for New South Wales. O'Connor J said [F486] :
"[E]xpress words are not necessary for the statutory extinction of a public right of way. That is illustrated by Mr Justice Fry'sjudgment in Corporation of Yarmouth v. Simmons [F487] , where a public right of way was held to be extinguished by necessary implication from the provisions of a Statute. The continued use of the land as a public road would render the exercise of the powers expressly conferred on the Constructing Authority impossible. It follows, therefore, that by necessary implication the rights of public way must be taken to have been extinguished by the resumption."
The authorisation by the 1910 Act and the 1962 Act of activities amounting to physical inconsistency (in the sense indicated above) with the continued exercise of what now are accepted as existing rights of native title would manifest, as a matter of necessary implication, the legislative intention to impair or extinguish those rights. I have referred to legislative intention with the particular meaning of "intention" indicated in the Native Title Act Case [F488] and discussed earlier in these reasons. Impairment or extinguishment would also follow if the 1910 Act or the 1962 Act prohibited acts which would be committed in the exercise of what now would be accepted to be native title. I approach the analysis of the 1910 Act and the 1962 Act upon that footing and what follows should be read accordingly.
Expansion of radical title
Radical title is that acquired upon the assumption of sovereignty (as understood in the law of nations) or, rather, upon settlement [F489] (as understood in that part of British constitutional law concerned with Imperial expansion). Radical title links international and constitutional law notions with those which support the private law of proprietary rights and interests in land. Thus, radical title was "a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law" [F490] . The framework included the doctrine of tenures. Absolute and beneficial Crown ownership, a plenum dominium , was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown.
The mediaeval notion of tenure was expressed by the proposition that all land was held directly or indirectly of the Crown. This involved relationships of reciprocal obligation between the respective parties at each level of the feudal structure, at the peak of which stood the sovereign. In an understanding of these relationships, including those between intermediate or mesne lord and tenant, "proprietary language is out of place" and the dominium of any particular dominus "was always a relative thing" [F491] . The concept ofownershipby the Crown of all land is a modern one, and its adoption in legal theory may have been related to Imperial expansion in the seventeenth and eighteenth centuries, well after the decline of feudalism [F492] . Writing in 1896, Professor Jenks said [F493] :
"[T]he theory had almost died a natural death when it sprang to life again in the most unexpected manner with the acquisition of the great English colonies. For if, as was the case, no subject could show a recognized title to any of the countless acres of America and Australia, at a time when those countries were first opened up by white men, it followed that, according to this relic of feudal theory, these acres belonged to the Crown. It may seem almost incredible that a question of such magnitude should be settled by the revival of a purely technical and antiquarian fiction."
In the law, fictions usually are acknowledged or created for some special purpose, and that purpose should be taken to mark their extent [F494] .
The State of Queensland relies strongly upon a passage in the judgment of Brennan J in Mabo [No 2]. In the course of discussing the extinguishment of native title upon the vesting by Crown grant of an interest in land inconsistent with continued enjoyment of a native title in respect to the same land, his Honour said [F495] :
"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 ."
Queensland submits that the grant by the Crown of a lease necessarily involves the acquisition by the Crown of the reversion which is expectant upon the expiry of the term. Accordingly, in granting the lease, the Crown exercises sovereign power in such a fashion as to assert absolute and beneficial ownership out of which the lease is carved. That absolute and beneficial ownership is, as a matter of law, inconsistent with the continued right to enjoy native title in respect of the same land.
It is necessary for the State to make good these propositions by their adaptation to the statutory systems for the disposition of Crown lands established by the 1910 Act and the 1962 Act. It is here, in my view, that the case for the State breaks down.
I have referred to the significant constitutional developments embodied in mid-nineteenth century legislation, culminating in Queensland with the 1867 Act, whereby settlement was achieved, in favour of the colonial legislatures, of the conflicting fiscal and political interests of the Imperial and local authorities and of the executive and the colonial legislatures in the disposition of the waste lands of the Crown.
That settlement, embodied in ss 30 and 40 of the 1867 Act, was implemented in successive statutes. These provisions include sub-ss (1) and (2) of s 6 of the 1910 Act, which state [F496] :
"(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."
Section 209(1)(ii) of the 1910 Act empowers the Governor in Council to make regulations which prescribe forms and "the conditions, stipulations, reservations, and exceptions that shall be inserted ... in grants, leases, licenses, and other instruments".
The term "Crown Land" was defined in s 4 as follows [F497] :
"All land in Queensland, except land which is, for the time being -
- (a)
- Lawfully granted or contracted to be granted in fee-simple by the Crown; or
- (b)
- Reserved for or dedicated to public purposes; or
- (c)
- Subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land".
The phrase "[a]ll land in Queensland" was apt to include land in respect of which the Crown held radical title. By that radical title, as a postulate of the doctrine of tenures and a concomitant of sovereignty, the common law enabled the Crown to grant interests in land to be held of the Crown and to become absolute beneficial owner of unalienated land required for the purposes of the Crown [F498] . However, by the constitutional settlement of the mid-nineteenth century, these prerogatives of the Crown, part of the common law, were displaced. Thereafter, all land in Queensland was to be dealt with pursuant to statute. It was by legislation that interests in the land were to be granted by the Crown and land was to be reserved or dedicated to "public purposes" [F499] .
Section 6(1) of the 1910 Act conferred upon the Governor in Council power to grant in fee simple or as a demise for a term of years any land in Queensland, save that land for the time being in fee simple, reserved for or dedicated to public purposes or subject to lease or licence lawfully granted by the Crown [F500] . The statute maintained a legal regime where, in respect of what it identified as leases, there was no need for the creation in the Crown of a reversionary estate out of which lesser estates might then be granted. Rather, land which for the time being had been subject to any such "lease" lawfully granted under s 6, was, upon ceasing to be so and, by reason of it now answering the definition of "Crown Land" in s 4, liable further to be dealt with by the Crown under s 6. Moreover, as will appear later in these reasons, whilst entry by the lessee was essential, at common law, to the creation of the reversion, s 6(2) operated effectually to vest interests granted under the statute in advance of and without dependence upon entry.
In addition, special provision was made by s 135 for consequences of forfeiture or other premature determination of any lease or licence. Section 135 provided:
"If the license or lease of any land is determined by forfeiture or other cause before the expiration of the period or term for which it was granted, then, unless in any particular case other provision is made in that behalf by this Act, the land shall revert to His Majesty and become Crown land, and may be dealt with under this Act accordingly."
It is apparent that the term "revert" is used in the particular sense of the reassumption of the character of "Crown land" liable to further disposition under s 6. Further, as I seek to explain later in these reasons, whilst entry was necessary to create the common law reversion, compliance with s 6(2) effectually vested without the need for prior entry, the interest granted. Upon that state of affairs, s 135 would operate in the above manner.
The 1962 Act contains similar provisions to ss 4, 6 and 135 of the 1910 Act [F501] .
Accordingly, I would reject the submission for the State that the scheme of the 1910 Act and the 1962 Act is such that, with respect to the grant of limited interests thereunder by the Crown, the necessary consequence is the acquisition by the Crown of a reversion expectant on the cesser of that interest, thereby generating for the Crown that full and beneficial ownership which is necessarily inconsistent with subsisting native title. Whatever be the interests or other rights created under s 6 of the 1910 Act and the 1962 Act, they "owe their origin and existence to the provisions of the statute" [F502] .
Extinguishment by the general provisions of the Act
Putting to one side particular submissions concerning the pastoral lease provisions, it is convenient first to consider whether the general operation of the 1910 statute necessarily involved the extinguishment of any native title in relation to an area of Crown land (as defined in s 4) which subsisted at the commencement of the 1910 Act on 1 January 1911 [F503] . Particular attention is required to two provisions. The first is s 203 [F504] . This states:
"Any person, not lawfully claiming under a subsisting lease or license or otherwise under any Act relating to the occupation of Crown land, who is found occupying any Crown land or any reserve, or is found residing or erecting any hut or building or depasturing stock thereon, or clearing, digging up, enclosing, or cultivating any part thereof, shall be liable to a penalty not exceeding twenty pounds." [F505]
Section 203 is concerned with the protection of the interests of the Crown in land which, for the time being, has not been granted in fee, is not reserved for or dedicated to public purposes, and is not subject to any lease or licence granted by the Crown, other than an occupation licence. This follows from the definition of "Crown land" in s 4. On its face, s 203 would have rendered a trespasser any person who, in exercise of what now are to be characterised as having been native title rights, occupied any of the very large area of Queensland falling within the definition of "Crown land" or conducted there any of the activities referred to in s 203. Were that so, the ground would be provided for a submission as to the general extinction of native title in respect of any land from time to time falling within the definition of "Crown land".
However, the progenitors of s 203 included s 91 of the Crown Lands Alienation Act 1876 (Q). Section 91 stated:
"Any personunless lawfully claiming under a subsisting lease or license or otherwise under this Act who shall be found occupying any Crown lands or land granted reserved or dedicated for public purposes either by residing or by erecting any hut or building thereon or by clearing digging up enclosing or cultivating any part thereof or cutting or removing timber otherwise than firewood not for sale thereon shall be liable on conviction to a penalty not exceeding five pounds for the first offence and not exceeding ten pounds for the second offence and not exceeding twenty pounds for the third or any subsequent offence. Provided that no information shall be laid for any second or subsequent offence until thirty clear days shall have elapsed from the date of the previous conviction." (emphasis added)
In Mabo [No 2], s 91 was construed by Brennan J [F506] (with whose judgment Mason CJ and McHugh J agreed) and by Deane and Gaudron JJ [F507] , as being directed to those who were in occupation under colour of a Crown grant or without any colour of right and as not directed to indigenous inhabitants in occupation of land by right of what is now to be seen as their unextinguished native title. Those indigenous inhabitants were not by s 91 rendered trespassers, liable to expulsion from Crown lands. They were not included in the class or description of persons to whom s 91 was directed. That was because an indigenous inhabitant as identified above would not be "any person". This construction of s 91 was an important step in the reasoning which led to the conclusion that the native title of the Meriam people had not been extinguished.
The 1910 Act and its predecessors were enacted at a time when there was doubt whether at common law the Crown was obliged to proceed by way of information for intrusion because it could not maintain an action for ejectment. These doubts since have been dispelled [F508] . However, they assist in perceiving the purpose of the first paragraph of s 204 in conferring a specific remedy for the removal of trespassers from Crown land.
Section 204 states [F509] :
"Any Commissioner [F510] or officer authorised in that behalf by the Minister who has reason to believe thatany personis inunlawful occupationof 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 againstany personinunlawful occupationof any part of the land comprised in the lease or license, and the like proceedings shall thereupon be had." (emphasis added)
The first paragraph of s 204 is concerned with the recovery of possession on behalf of the Crown of land which is "Crown land" within the definition of that term in s 4. The second paragraph assists those holding from the Crown under any lease or licence land which, in the above sense, for the time being is not Crown land.
In that regard it is convenient at this point to consider the decision in Macdonald v. Tully [F511] . There, in delivering the judgment of the Court, Cockle CJ said of a plaintiff who was a lessee within the meaning of s 5 of The Tenders for Crown Lands Act 1860 (Q) that [F512] :
"This right of the plaintiff to occupy was ... capable of being maintained against any disturber, whether assuming to disturb in virtue of an alleged lease or otherwise."
The Full Court granted a motion for arrest of a judgment recovered in an action against a nominal defendant representing the Crown. The plaintiff's complaint had been that the Crown had wrongly granted to a third party a lease of the land in question and that, in response to threats of trespass made by that third party, the plaintiff had withdrawn from occupation of the land. The judgment was arrested on the footing that the plaintiff's case failed because, rather than maintaining his own right, he had acquiesced in the claim of right made by the third party and had withdrawn from the runs without notice to or knowledge on the part of the Crown. This case illustrates that an end sought to be achieved by legislation such as s 203 and s 204 of the 1910 Act was the imposition of legal order upon the confusion which developed with the expansion of European settlement. In particular, the second paragraph of s 204 conferred some security of tenure against third parties, including settlers with competing claims.
In each paragraph of s 204, the term "any person" was used to identify those whose occupation of the Crown land was "unlawful". Section 203 achieved the same result by the phrase "not lawfully claiming". As indicated above, the term "any person" is not apt to include those claiming under native title. The use of "unlawful" does not require a different construction. Rather, it supports the above construction.
The word "unlawful" may be used in various senses. Two of these were discussed by Griffith CJ in Lyons v. Smart [F513] . His Honour spoke as follows with reference to the unlawful importation and unlawful possession provisions of the Customs Act 1901 (Cth) as they then stood [F514] :
"Now, the word 'unlawfully' is a word commonly used in Statutes creating crimes, misdemeanours and minor offences, and in such Acts it is used in two shades of meaning, one when referring to an act which is wrong or wicked in itself - recognized by everybody as wicked - as, for instance, when it is used with reference to certain sexual offences, or with reference to acts which are absolutely prohibited under all circumstances; the other when referring to some prohibition of positive law. The Customs Act 1901 has nothing to do with what is right or wrong or virtuous. It contains certain arbitrary rules which the legislature lays down. What is wrong is wrong because the Act says so, and for no other reason. The word 'unlawfully' must, therefore, there being no other relevant law, be read in that context as meaning 'in contravention of the provisions of this Act.'"
The situation with which these appeals are concerned, the exercise of rights attached to native title, would not, without more, be in contravention of the provisions of the 1910 Act, in the above sense of "unlawful" used by the Chief Justice. Indeed, the question at issue is whether, upon its true construction, the 1910 Act contained clear and plain provisions necessarily inconsistent with the continuation of native title. The answer to that question is not to be found by passing through a gateway erected by a particular construction of "unlawful" in s 204.
In Lyons v. Smart [F515] , Barton J and O'Connor J treated the ordinary meaning of an unlawful act as one "forbidden by some definite law", whether statute law or common law. Upon the present hypothesis, there is no statute forbidding the exercise of rights of native title and that title is recognised by the common law of Australia. Finally, in his dissenting judgment in Lyons v. Smart, Isaacs J referred to that construction of "unlawfully" as meaning without any bona fide claim of right or colour of justification [F516] . If s 204 be interpreted in this way, a bona fide assertion of a claim to rights conferred by native title would not render occupation unlawful.
In the result, whichever shade of meaning is given to that term as used in s 204, as to which it is unnecessary to express any concluded opinion, s 204 did not render indigenous inhabitants relying upon their native title liable to removal from land which was for the time being Crown land or land comprised in a lease or licence from the Crown, by warrant issued at the instance either of officers of the Crown or the lessee or licensee.
Further, the reasoning which leads to the construction of s 203 which does not render those holding native title trespassers upon the subject lands applies at least as forcefully to the construction of the phrase "unlawful occupation of any Crown land" in the first paragraph of s 204. This is not to be read as directed to authorising the Crown to expel indigenous inhabitants from occupation of land enjoyed in exercise of their unextinguished native title. That being so, no different interpretation should be given to the phrase "unlawful occupation" in the second paragraph of s 204. The presumption is that the same meaning should be given to the same phrase where it occurs in the same provision and the context here does not suggest the contrary [F517] .
Finally, the terms of s 204 are of some assistance in an analysis of those particular forms of tenure created by the 1910 Act which are identified by expressions using the terms "lease" and "licence". The second paragraph of s 204, which must be read with the first, authorises a lessee and licensee of any land from the Crown to take proceedings in the same manner as a Commissioner or officer authorised by the Minister. If successful, this will lead to the issue of a warrant for the removal of the unlawful occupiers and thereafter to what is identified as the taking of "possession" of the subject land "on behalf of" the lessee or licensee. The section treats indifferently the nature of the enjoyment of such a lessee or licensee by use of the same term, "possession", to identify it.
On the other hand, at common law the term "exclusive possession" is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises. "Exclusive possession" serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord [F518] . As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee [F519] .
Accordingly, s 204 points towards a construction of the 1910 Act which does not treat as coincident with the characteristics of "leases" and "licenses" as understood at common law, those of the tenures created by the statute and identified therein by terms which include one or other of those words.
Provision corresponding to s 203 and s 204 is made in s 372(1) and s 373(1) respectively of the 1962 Act. The conclusions reached with respect to the earlier provisions apply to their later counterparts.
Pastoral leases
It is appropriate to turn to consider more closely the particular provisions of the legislation with respect to pastoral leases. The question is whether it follows upon a proper construction thereof and by reason of the steps taken thereunder by the issue of the Mitchellton Pastoral Leases and the Holroyd River Pastoral Lease, the necessary extinguishment of any subsisting native title.
Attention is to be focused upon the terms of the legislation and of the instruments themselves. In that examination, the term "exclusive possession" is of limited utility. As has been indicated, by s 204 the 1910 Act created its own remedy in the nature of ejectment and made it available not only to lessees but also to licensees of any land from the Crown.
To reason that the use of terms such as "demise" and "lease" in legislative provisions with respect to pastoral leases indicates (i) the statutory creation of rights of exclusive possession and that, consequently, (ii) it follows clearly and plainly that subsisting native title is inconsistent with the enjoyment of those rights, is not to answer the question but to restate it.
The term "lease" may be used in a statute in a limited sense only. Thus, a lease enforceable in equity under the doctrine in Walsh v. Lonsdale [F520] may not answer the description of "lease" in a particular statute [F521] . Statute, such as the Landlord and Tenant (Amendment) Act 1948 (NSW), may create between parties who were landlord and tenant a relationship for the identification of which "no new terminology ... has come into existence" [F522] . The phrase "statutory tenant" then may be used to identify these rights and obligations which subsist only by virtue of the legislation and are unknown at common law [F523] .
In the present dispute, the necessary analysis discloses an operation of the legislation comparable to that identified by Isaacs J in respect to conditional purchases under the Crown Lands Consolidation Act 1913 (NSW). In Davies v. Littlejohn [F524] , his Honour said of tenures created by such legislation:
"It creates them, shapes them, states their characteristics, fixes the mutual obligation of the Crown and the [grantee], and provides for the mode in which they shall cease to exist".
More recently, in R v. Toohey; Ex parte Meneling Station Pty Ltd [F525] , Mason J spoke to similar effect. The question there was whether a grazing licence granted pursuant to the Crown Lands Act 1931 (NT) to permit the grazing of stock on Crown land conferred an "estate or interest" in the subject land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), so as to take the grazing licence beyond the reach of its provisions as to grants to Aboriginal Land Trusts [F526] . In deciding that a grazing licence conferred no such "estate or interest", Mason J determined that the rights of the holder of such a licence fell short in two respects of the concept of property or proprietary rights expressed in the well-known analysis by Lord Wilberforce in National Provincial Bank Ltd v. Ainsworth [F527] . First, although a licence might be granted for up to one year, it was liable to cancellation by the Minister on three months' notice in writing and without any default by the licensee. Secondly, the licence was not assignable, thereby emphasising the personal nature of the rights conferred by it. In the course of this analysis, Mason J said [F528] :
"The grazing licence is the creature of statute forming part of a special statutory regime governing Crown land. It has to be characterized in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land."
Two further points should be made here. The first is that land law is but one area in which, whilst statute may appear to have adopted general law principles and institutions as elements in a new regime, in truth the legislature has done so only on particular terms. A statutory body in which a fund is vested may be styled as a "Trust", or may be given by its constituent statute the investment powers of trustees. In neither case may contributors to the fund have the beneficial interest of an ordinarycestui quetrust [F529] . On the other hand, from an express statement that a statutory body is not bound by the law relating to the administration of trust funds by trustees, it does not necessarily follow that in other respects this body is a trustee in the ordinary sense of moneys held by it [F530] . In such ways the legislature may create entities which have some but not all of the characteristics of a trust. In each case the true construction of the law determines the degree of the analogy. Accordingly, there is nothing remarkable in the use of a term such as "lease" or "licence" to identify new institutions not fully to be identified with either term as understood at common law.
The second point is that it is unhelpful to approach the issues of construction which arise on these appeals by asking whether the 1910 Act and the 1962 Act each is a "code" and, after giving a negative answer, to conclude that a pastoral lease for a particular period has the same incidents of a lease for such a term under the general law. Like native title itself [F531] , the interests created by the 1910 Act and the 1962 Act take their place in the general legal order. As such (and subject to the operation of doctrines of illegality [F532] ), those interests may be the object of rights and obligations createdinter partesand supported by the law of contract. In O'Keefe v. Williams [F533] , this Court held that there was an implied covenant by the Crown not to derogate from the rights of a plaintiff under an "occupation licence" granted under the New South Wales Crown lands legislation. For breach of a contractual obligation to deal in a statutory interest in or with respect to land, a remedy in the nature of specific performance may be appropriate [F534] . In the circumstances of the particular case and depending upon the particular incidents attached by statute to the interest in question, there may be an equity to relief against forfeiture of that interest [F535] . The exercise of statutory powers with respect to the granting of interests thereunder which are conferred upon the executive may be attended by obligations to afford procedural fairness, and equity may, by injunction, restrain eviction of the plaintiff pending the determination of an application for a further grant [F536] .
In such ways, the legal system may operate upon pastoral leases and other interests created under the 1910 Act and the 1962 Act. However, in so doing, the legal system takes those interests as they are found in the statute. It does not first so classify those interests that they fit within one or other category of estate or interest already known to the general law.
It is true that s 6(1) of the 1910 Act speaks of a "demise for a term of years", as well as the grant in fee simple. However, in s 6(2) the same formalities are prescribed for both a "grant" and a "lease". Moreover, under this provision the lease is to be made in the prescribed form and, being so made, is stated as being "valid and effectual" both to convey to and to vest "in the person therein named the land therein described for the estate or interest therein stated". Section 6(2) is not merely a procedural provision. By stating that compliance with this requirement was effectual to vest the interest in question, it marks off, to a significant degree, pastoral leases from leases granted under the common law.
If the Mitchellton Pastoral Leases were treated as attended in their creation by the same requirement as those attending the creation of leases under the common law, neither of those instruments would have vested the term in the lessees. At common law, the term would have vested only upon entry and there was no such entry. Before entry, the lessees would have had merely an interest in the term, orinteresse termini. With effect from 1 December 1975 [F537] , the doctrine ofinteresse terminiwas abolished by s 102 of the Property Law Act 1974 (Q) and s 12 of the Residential Tenancies Act 1975 (Q) [F538] . This was after the grant of the Holroyd River Pastoral Lease. Theinteresse terminigave not an estate but a right of entry [F539] . This reflected the origin in covenant of the rights of the lessee against the lessor, so that, if the lessor failed to deliver possession, the lessee could not bring a real action. The remedy was one for breach of covenant [F540] . Entry was essential to create the estate in reversion [F541] . However, as indicated earlier in these reasons, the 1910 Act operated without the creation in favour of the Crown of what at common law would be regarded as a reversionary estate.
Part III of the 1910 Act was headed "PASTORAL TENURES". Division I thereof (ss 40-44) was headed "Pastoral Leases", and Div II (ss 45-47) was headed "Occupation Licenses". Occupation licences were granted by the Minister (s 46) and pastoral leases by the Governor in Council (s 6). Occupation licences, unless renewed for the next year, expired on 31 December of the year of grant (s 47(1)). The term of any pastoral lease was not to exceed 30 years (s 40(2)). Pastoral leases might be mortgaged (ss 156, 158, 159) [F542] and surrendered (s 122).
The pastoral leases and occupation licences, as the two species of pastoral tenure, were treated without distinction in various provisions of the 1910 Act outside Pt III. Reference already has been made to s 204. Pastoral leases and occupation licences might be transferred to qualified persons with the permission of the Minister (s 166). In respect of both species of interest, the same provision (s 129) conferred a power of forfeiture for default in payment of rent and acceptance by the Crown of any rent or other payment did not operate as a waiver of such forfeiture (s 131(2)). The expression "the land shall revert to His Majesty and become Crown land, and may be dealt with under this Act accordingly" is used in s 135 in respect of determination of either pastoral lease or licence before the expiration of the period or term of grant; under the common law, determination of a licence would not ordinarily be described as bringing about a reversion of the land to the licensor. Finally, in Pt III itself, s 43(1) requires of every pastoral lease that it be subject to a condition as to payment of "rent", and s 47(2) stipulates the "rent" for an occupation licence.
A condition might be imposed upon a pastoral lease that the land be enclosed and kept enclosed with a rabbit-proof fence (s 40(1)). No such condition was imposed in the Mitchellton Pastoral Leases. At the time of the grant of the second of the Mitchellton Pastoral Leases in 1919, s 43(iii) [F543] provided, in certain circumstances, for the inclusion of a condition of personal residence during the first seven years of the term. No such condition was imposed in the second of the Mitchellton Pastoral Leases. On the other hand, in Pt IV (ss 48-114), headed "SELECTIONS", there were obligations of fencing (ss 78-83) and detailed provision as to conditions of personal residence and occupation (ss 86-93).
Each of the Mitchellton Pastoral Leases was expressed to "demise and lease" the land "for pastoral purposes only" and to be subject to the conditions and provisos in Pt III Div I of the 1910 Act and to the other provisions of that statute and to The Mining of Private Land Act 1909 (Q), and to any Regulations made or thereafter to be made under that Act or the 1910 Act. The Court was furnished with the relevant General Regulations under s 209 of the 1910 Act [F544] . These indicate that both the Mitchellton Pastoral Leases were in Form 3 prescribed by reg 4 and that the expression "for pastoral purposes only" appeared in Form 3. The Form, like the two Mitchellton Pastoral Leases, contained what was styled a "reservation" in favour of the Crown of a right of access to search for or work gold and minerals and there was a further "reservation" of a right of access in favour of any person authorised in that behalf by the Governor in Council to go upon the land "for any purpose whatsoever, or to make any survey, inspection, or examination of the same".
Section 209(1)(ii) of the 1910 Act empowered the Governor in Council to make the General Regulations prescribing Form 3 and this fell within the terms of the central provision in s 6(2). This stated that a grant or lease "shall be made subject to such reservations and conditions as are authorised or prescribed by this Act or any other Act, and shall be made in the prescribed form ...". The term "reservation" in strict usage identifies something newly created out of the land or tenement demised and is inappropriate to identify an exception or keeping back from that which is the subject of the grant [F545] . However, in accordance with the Australian usage referred to by Windeyer J in Wade v. New South Wales Rutile Mining Co Pty Ltd [F546] , "reservation" was apt in Form 3 to identify that which was withheld or kept back by the grants made by the Governor in Council under the 1910 Act. The adoption of Form 3 with this text does not necessarily support a proposition that without these "reservations" the holder of the pastoral lease would have had the entitlement to refuse entry or re-entry to all persons whatsoever.
The ordinary meaning of the phrase "for the purpose of pasture" is the feeding of cattle or other livestock upon the land in question [F547] . The phrase "for pastoral purposes" would include the feeding of cattle or other livestock upon the land but it may well be broader, and encompass activities pursued in the occupation of cattle or other livestock farming. Even upon this broader interpretation, it cannot be said that there have been clearly, plainly and distinctly authorised activities and other enjoyment of the land necessarily inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants of the pastoral leases.
The foregoing supports four propositions. First there is apparent the mixing together or combination in the statutory regime for pastoral leases and occupation licences of elements which in an analysis under the common law of leases and licences would be distinct [F548] . Secondly, the terms of the 1910 Act providing for pastoral leases were apt to identify the characteristics and incidents of that statutory interest. Thirdly, those characteristics were not such as to approximate what under a lease as understood at general law may have been a right to exclude as trespassers persons exercising rights attached to their subsisting native title. Fourthly, the contrary conclusion, that native title holders were rendered trespassers as a consequence of rights given by pastoral leases, would be at odds with the interpretation of the phrase "unlawful occupation" which, as indicated earlier in these reasons, is to be given its use in s 204 of the 1910 Act.
I turn to the Holroyd River Pastoral Lease. Part III (ss 49-80) of the 1962 Act is headed "PASTORAL TENURES", and Div I (ss 49-65) is headed "Pastoral Leases". There are two pastoral tenures in addition to pastoral leases, stud holdings (ss 66-74) and occupation licences (ss 75-80). The term "rent" is used in respect of occupation licences (s 79) as well as pastoral leases (s 61). There was a statutory maximum of 30 years as the term of a pastoral lease (s 53(1)). The prescribed form for pastoral leases differed from that under the 1910 Act in not expressing the grant as "for pastoral purposes only". Other differences between the two regimes are identified by Gaudron J in her reasons for judgment.
As indicated earlier in these reasons, the land carried approximately one beast to 60 acres. The cattle were run under open range conditions. At the time of the relevant grant in 1974, there appear to have been six sets of roughly constructed mustering yards but no other improvements upon the land. Section 14 of the 1962 Act obliged the grantees to perform conditions imposed upon them by the statute or the grant [F549] . The instrument contained conditions requiring, within five years, the sowing of at least 40.5 hectares as a "seed production area" and the construction of an airstrip, 90 miles of internal fencing, one set of main yards and dip, three earth dams and a manager's residence, with quarters for five men and a shed. There was a further condition requiring, within that period, the enclosure of the holding with a good and substantial fence. This was unwelcome to the grantees. It was not common practice on Cape York to boundary fence. Apparently as the result of an exercise of the discretion conferred upon the Minister by s 64(3) of the 1962 Act, the grantees later were relieved from compliance with this condition [F550] . The airstrip was constructed and the Minister appears to have accepted that there was compliance with the requirement for dam construction. The other conditions were not complied with by the grantees. Failure to comply with conditions required by the Holroyd River Pastoral Lease rendered it liable to determination by forfeiture (ss 14(1) and 295 of the 1962 Act). Upon such determination, the land reverted to the Crown and became Crown land available for re-grant (ss 299(1), 6(1)). The person in occupation would be obliged by s 299(2) to give to the Land Commissioner peaceful possession of the land and of all improvements thereon. Liability to forfeiture might be waived by the Minister (s 297(2)).
Despite some differences between the two statutory regimes and subject to one qualification, the same conclusions apply to the Holroyd River Pastoral Lease as those reached with respect to the Mitchellton Pastoral Lease. In none of these instances was there clear, plain and distinct authorisation by the relevant grant of acts necessarily inconsistent with all species of native title which might have existed. It does not appear that the statutory interests could be enjoyed only with the full abrogation of any such native title.
The qualification is that the later but not the earlier grants were subject to conditions requiring improvements to the land. It may be that the enjoyment of some or all native title rights with respect to particular portions of the 2,830 square kilometres of the Holroyd River Pastoral Lease would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.
It remains to consider two authorities of this Court which were cited in opposition to the submissions presented by the Wik Peoples and the Thayorre People. In American Dairy Queen (Q'ld) Pty Ltd v. Blue Rio Pty Ltd [F551] , this Court was concerned with the construction of Pt XI (ss 334-361) of the 1962 Act. Division I is headed "Deeds of Grant in Trust and Reserves" and Pt XI deals generally with grants, reserves and reservations for public purposes. As was indicated in argument in that case [F552] , the provisions of Pt XI, in particular s 343 dealing with leases by a Trustee and s 347 dealing with the transfer, mortgage and subletting of leases, are to be contrasted with the detailed provisions in Div VIII (ss 273-293) of Pt X. These deal with subleases, mortgages, transfers and other dealings with certain holdings, including pastoral leases created under earlier Parts of the Act. Section 343 and the sections following expressly mentioned only one interest, identified as a lease. It was held that by adopting the terminology of leasehold interests the legislature must be taken to have intended the operation of the incidents of corresponding interests at common law as modified by the statute [F553] . The immediate issue concerned the power of a sublessee to deal with its interest, the subject premises being a reserve having upon it a kiosk and other buildings adjacent to a swimming area at Southport. I would not treat that decision as authority going beyond the particular operation of Pt XI of the 1962 Act. The decision is further discussed by Toohey J in his judgment in the present case. I respectfully agree with what is said there by his Honour.
The second authority is O'Keefe v. Williams [F554] . I agree with the analysis of this case by Gaudron J in her Honour's reasons for judgment.
Conclusions
Of the questions separately determined by Drummond J, Questions 4 and 5 arise in this Court only upon the appeal by the Wik Peoples. These Questions concerned the claims against Comalco and Pechiney. The appeal by the Wik Peoples in respect of the answers to those Questions should be dismissed.
The Wik Peoples also appeal in respect to the answer to Questions 1B and 1C. The Thayorre People appeal with respect to the answer to Question 1C. Drummond J answered in the affirmative that element in Question 1B which asked whether the grant of the Holroyd River Pastoral Lease necessarily extinguished all incidents of Aboriginal title or possessory title of the Wik Peoples in respect to the land demised thereunder. His Honour also answered that element of Question 1C which asked whether the grant of either of the Mitchellton Pastoral Leases necessarily extinguished all incidents of Aboriginal title or possessory title of the Thayorre People in respect to the land demised thereunder by stating that the grant of the first Mitchellton Pastoral Lease extinguished Aboriginal title.
My conclusion is that none of these grants necessarily extinguished all incidents of native title which then were subsisting. Accordingly, on these appeals no further question remains as to the existence of any doctrine as to suspension of native title and the revival thereof upon expiration of these grants. I say nothing upon that subject. There should be no further delay in preparing for trial. The particular elements of Questions 1B and 1C to which I have referred are contained in each case in par (d). This asks whetherthe grantof the pastoral lease in questionnecessarilyextinguishedall incidentsof native title. The form of par (d) thus is important. However, both Question 1B and Question 1C were so drawn that consideration of par (d) only arose upon an affirmative answer to the question posed in par (b). This asked whether the respective pastoral leases conferred "rights to exclusive possession on the grantee". In my view, as indicated earlier in these reasons, the posing of a question in those terms may have distorted the essential issues and par (d) should have stood independently for decision. On the other hand, there was no challenge at the hearing before this Court with respect to questions and answers to par (a) in Questions 1B and 1C [F555] .
I would deal with this situation in respect of both Question 1B and Question 1C by answering par (b) "No", par (c) "Does not arise", and par (d) "Strictly does not arise, but is properly answered no".
Each appeal should be allowed in part. In the appeal by the Wik Peoples, the answers given by Drummond J to Question 1B and Question 1C should be set aside and replaced by answers reflecting the above conclusions. On the appeal by the Thayorre People, this is required only in respect of Question 1C. Costs in this Court should be ordered as proposed by Toohey J. The costs of the proceedings below should be remitted for further consideration by the Federal Court.
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