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

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow

Kirby JJ

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

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

CANBERRA

Judgment by:
Kirby J

These proceedings, removed into this court from the Federal Court of Australia, concern a claim by Aboriginal Australians to "Native Title" ^[F556] in respect of certain land in Northern Queensland. They raise the issue of the effect on such title of pastoral leases granted under Queensland legislation. Also raised is a challenge to the effectiveness of two agreements with mining consortia which, by statute, are given the force of law as if they were enacted by the Queensland Parliament.

INTRODUCTION

The Mabo decision and its aftermath

Before the decision of this Court in Mabo v. Queensland [No 2] ^[F557] ("Mabo [No 2]"), the foundation of land law in Australia was as simple as it was clear. From the moment that the lands of Australia were successively annexed to the Crown, they became "in law thepropertyof the King of England" ^[F558] . It was so in respect of Eastern Australia when Governor Phillip received his first commission from King George III on 12 October 1786. It was so after the first settlement of the English penal colony was established in Sydney in 1788 ^[F559] . No act of appropriation, reservation or setting apart was necessary to vest the title in the land in the Crown. All land, including all waste lands of the colony, were "without office found, in the Sovereign's possession ... as his or her property" ^[F560] . Land interests were thereafter enjoyed only as, or under, grants made by the Crown. This doctrine, providing the ultimate source of all interests in land in Australia, was upheld by early decisions of the courts of the Australian colonies. But it was also accepted ^[F561] , affirmed ^[F562] and reaffirmed ^[F563] by this Court. Although the indigenous inhabitants of Australia (Aboriginals and Torres Strait Islanders) "had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest" ^[F564] , their legal interests in, and in relation to, the annexed land were considered to be extinguished. If they were to enjoy any such interests thereafter, they could do so only by, or under, a grant from the Crown: the universal repository of the ultimate or "radical" title ^[F565] .

This apparently unjust and uncompensated deprivation of pre-existing rights distinguished the treatment by the Crown of the indigenous peoples in Australia when compared to other settlements established under the Crown in the American colonies ^[F566] , Canada ^[F567] , New Zealand ^[F568] and elsewhere. The principle was criticised ^[F569] . However, from the point of view of the settlers, their descendants and successors, it was part of Australia's historical reality. From the point of view of legal theory, it had a unifying simplicity to commend it: No legally enforceable rights to land pre-existing annexation and settlement. No title to land except by or under a Crown grant made out of the royal prerogative of the Sovereign in the earliest days and thereafter pursuant to enabling legislation.

Into this settled and certain world of legal theory and practicality, the decision in Mabo [No 2] ^[F570] intruded. By that decision, this Court unanimously affirmed that the Crown's acquisition of sovereignty over the territories which now comprise Australia might not be challenged in an Australian court. Upon the acquisition of such sovereignty, the Crown acquired a radical title to the land. But, by majority ^[F571] , the Court held that what it called "native title" survived the Crown's acquisition of sovereignty and of the radical title. However, such title was subject to extinguishment where it was shown that the sovereign power, acquired by annexation, had been exercised in respect of land in a way inconsistent with the continuance of the native title ^[F572] .

The decision in Mabo [No 2]called forth a great deal of legal commentary ^[F573] . It resulted in the passage of the Native Title Act 1993 (Cth). Various State Acts were also enacted, including the Native Title (Queensland) Act 1993 (Q). In Western Australia v. The Commonwealth (Native Title Act Case) ^[F574] , this Court upheld the general validity of the federal Act as resting upon s 51(xxvi) of the Constitution. That paragraph empowers the Federal Parliament to make laws with respect to the "people of any race for whom it is deemed necessary to make special laws". It was held that the Act was "special" in that it conferred on the holders of native title benefits protective of that title, otherwise vulnerable to extinction in accordance with the holding in Mabo [No 2] ^[F575] .

The Native Title Act 1993 (Cth) did not purport to provide for the consequences for native title of the grant of pastoral leases such as are in question in this appeal. In the Preamble to the Act, the Parliament expressed its understanding of the decision of this Court in Mabo [No 2]to include a holding that ^[F576] :

"... 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 Act provided for the recognition and protection of native title ^[F577] . This Court has had occasion to emphasise the beneficial character of the procedures established by the Act, in North Ganalanja Aboriginal Corporation v. State of Queensland("the Waanyi Case") ^[F578] . That was an appeal from the Full Court of the Federal Court of Australia ^[F579] . Although the holding of the Federal Court in the Waanyi Caseincluded a holding about the effect, in law, of the grant of a pastoral lease in Queensland, this Court, by majority ^[F580] , considered that it was then premature to determine the correctness of the Federal Court's opinion on the "pastoral lease question". The application on behalf of the Waanyi people was returned to the National Native Title Tribunal established by the Native Title Act 1993 (Cth) so that the procedures of that tribunal might be correctly followed.

It did not take long for an opportunity to present itself again whereby this Court would be asked to consider the effect of pastoral leases upon the native title found, in Mabo [No 2] ^[F581] , to have survived the annexation by the Crown of the Australian lands.

In The Wik Peoples v. State of Queensland ^[F582] , a single judge of the Federal Court of Australia (Drummond J) answered a number of questions of law raised by the claims of the Wik Peoples ("the Wik"-the present appellants) and also the Thayorre People ("the Thayorre"-the 19th respondents) to an area of land in Northern Queensland affected by earlier grants of pastoral leases under Queensland law. The several questions isolated for consideration by Drummond J, and answered by him, concerned:

1.

Whether the power of the Queensland Parliament to enact laws providing for pastoral leases without preserving native title rights was limited in law. (The State constitution question).

2.

Whether a grant of a pastoral lease in Queensland, without express reservation of native title rights, necessarily extinguished native title, including that of the Wik and the Thayorre. (The pastoral leases question).

3.

Whether the passage of the Mining on Private Land Act 1909 (Q) and/or the Petroleum Act 1915 (Q) had extinguished any native title rights which the applicants may have had in minerals and petroleum beneath the subject land. (The mineral rights question).

4.

Whether the applicants could claim relief against the State of Queensland and Comalco Aluminium Ltd if a grant by the State of Queensland to that company of rights in land, including mining rights, extinguished any native title rights which the applicants may have had in the land, having regard to the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q) and the agreement entered into pursuant to that Act. (The Comalco Agreement question).

5.

A similar question to the Comalco Agreement question in relation to the entitlement of the Wik and the Thayorre to maintain claims against the State of Queensland or Aluminium Pechiney Holdings Pty Ltd (the 5th respondent) having regard to the Aurukun Associates Agreement Act 1975 (Q) and the Aurukun Associates Agreement purportedly made under that Act. (The Aurukun Agreement question).

When Drummond J answered each of the foregoing questions adversely to the Wik (and consequentially to the interests of the Thayorre) an appeal was immediately taken to the Full Court of the Federal Court of Australia. An application for removal of that appeal into this Court was heard and granted on 22 March 1996. However, the issues for decision in the appeal were narrowed. The State constitution question and the mineral rights question were not pressed. This left as the active issues in the appeal the pastoral leases question and the Comalco and Aurukun Agreement questions. I shall group the latter together to be dealt with in due course as the "Statutory Agreements question".

The ultimate questions for decision in this Court are relatively simple and confined. Did the pastoral leases granted in the lands claimed by the Wik and the Thayorre, either by the fact of grant or the terms thereof, extinguish the native title rights of the Wik and the Thayorre? Could the claim brought by the Wik against the State of Queensland and the companies mentioned in the Statutory Agreements be maintained in law, notwithstanding the steps purportedly taken under the legislation authorising the making of those agreements to give them the force of statute?

It might be thought that such relatively straightforward questions would yield simple answers. Whilst I regard the Statutory Agreements question as being relatively simple to answer, the pastoral leases question is not. Most of the oral hearing before this Court was devoted to its complexities, as were the written submissions and documentation filed by the parties, numbering many thousands of pages. These have taken the Court into the history and incidents of feudal land tenures in England; the reception of land law into the Australian colonies, and specifically into Queensland; the history of the special legislative measures enacted in colonial and post-colonial Queensland to provide for pastoral leases; and the decisions of many courts on the meaning and effect of the statutory provisions in question.

For the purposes of comparison, the Court was also taken to colonial practice and legislation as well the modern statutes affecting pastoral leases in the States of Australia and in the Northern Territory. The State of Queensland was the first respondent to the appeal. All of the other States (except New South Wales and Tasmania) and the Northern Territory intervened. The Court received detailed submissions on behalf of the Commonwealth (second respondent) and contradictory submissions for the Aboriginal and Torres Strait Islander Commission (13th respondent). It received submissions from a number of Aboriginal Councils concerned about the possible implications of the resolution of the pastoral leases question for jurisdictions other than Queensland. It also heard submissions from various interests representing pastoralists who might be affected were the Wik to succeed. Some of these submissions drew upon decisions of courts of other common law countries upon problems described as analogous, being the resolution of conflicts about legal claims upon land made on behalf of indigenous peoples ^[F583] and the claims of pastoralists and their suggested foreign counterparts ^[F584] .

Procedural context

At the outset it is appropriate to say something about the procedural context in which the issues before the Court arise.

In June 1993, following Mabo [No 2],proceedings were commenced in the Federal Court on behalf of the Wik. By those proceedings, the Wik, an Aboriginal clan or group, sought a declaration as to their native title rights in relation to a large area of land in Northern Queensland. The Wik also claimed damages and further relief in the event that it was found that such rights had been extinguished. One of the respondents to the claim was the Thayorre, another Aboriginal clan or group. The Thayorre cross-claimed for similar declarations in respect of lands which overlapped, in part, those the subject of the claim of the Wik.

Subsequently, in January 1994, the Native Title Act 1993 (Cth) commenced operation. The Wik made an application to the Federal Court for the adjournment of its proceedings under the general law so that they could apply to the Tribunal established under the new Act for a determination that they enjoyed "native title" as, in effect, they were claiming in the Federal Court action. The application for adjournment, and subsequent procedural issues, were all dealt with in the Federal Court by Drummond J ^[F585] . Some of the respondents supported the application or did not oppose it. Others opposed it on the ground of the fragmentation of the litigation. On 11 March 1994, Drummond J ruled that the Wik could divide the proceedings. But to avoid vexation of the resisting respondents, the Wik were required to file and serve an undertaking not to prosecute further their original claim for native (called "Aboriginal") or possessory title. That application was adjourned but with liberty to any party to restore it depending on the prosecution and outcome of the claim under the Act ^[F586] .

The Wik brought proceedings under the Act for the determination of their claim to native title. On 18 April 1994, Drummond J heard argument as to whether some of the issues raised should not be disposed of as preliminary questions. Much the same course was followed as in the Waanyi claim, ie it was ordered that a number of issues arising from the proceedings be dealt with as preliminary questions ^[F587] . This course was followed before the clarification by this Court, of the procedural entitlement of claimants, such as the Wik, as explained in the Waanyi Case ^[F588] . No party has taken any point on this procedural irregularity.

The Wik accepted that some issues in their claim were appropriate for preliminary determination. However, they submitted that it was first necessary for evidence to be taken. A difference arose as to whether that evidence should be more than formal and documentary evidence. The Wik sought to be released, in part, from their undertaking to the Federal Court so that they could pursue part of their claim under the general law, outside the Act. This application was refused on 26 May 1994. Instead, Drummond J, with the assistance of the parties, formulated questions on the five issues identified above. Drummond J's rulings were challenged before the Full Court of the Federal Court. Whilst expressing no opinions on the substantive issues, the Full Court declined to disturb the interlocutory orders which Drummond J had made ^[F589] . Some of the submissions of the Wik before the Full Court appear similar to those subsequently upheld by this Court in the Waanyi Case ^[F590] . However, the Full Court was of the view that the legal questions were important and that it was in the interests of all parties that they be determined as quickly as possible ^[F591] .

It was against this background that Drummond J came to the determination of the questions presenting the issues which he had separated for resolution ^[F592] . Those questions, so far as still relevant to the proceedings removed into this Court, are set out in the reasons of Brennan CJ. I do not repeat them. As I have stated, all of them were answered by Drummond J adversely to the interests of the Wik ^[F593] and some only of them are now contested.

The point of explaining this protracted procedural saga is now reached. The notice of appeal filed by the Wik (as amended) sets out those grounds of appeal which are still in contest. Certain of the grounds challenge the correctness of Drummond J's procedural approach. They assert that his Honour erred "in treating the question [of the effect of the pastoral leases] as a question only of law and not a question of fact or a mixed question of fact and law". They dispute that the questions were "capable of determination in the absence of a determination of facts as to the nature and extent of native title rights and interests". As argued, I did not take these grounds of appeal to seek to reagitate the discretionary procedural decision of Drummond J, as such. Whilst appellate courts retain their supervision to correct error in such orders, they are most hesitant to disturb them, even where, in effect, those orders have the consequences of striking out or otherwise terminating the entire proceeding ^[F594] . Instead, I took the Wik to be raising a point of substance. This was that, upon one view of the law, pastoral leases of the kind here in question do not, merely by grant, extinguish the native title of the Wik. Such extinguishment depends upon the elucidation, by evidence, of complex facts. Relevant facts might include, for example, whether the lessee entered into possession. Alternatively, they might include a painstaking examination of the conduct of successive lessees and successive generations of the Wik to see whetherin factthere was such an inconsistency between the title under the pastoral lease and native title as to extinguish the latter.

It will be necessary to return to this point of substance. I depart the procedural complaint by the Wik over the course followed in the Federal Court by endorsing the remarks of Sir Thomas Bingham MR in E (A Minor) v. Dorset County Council ^[F595] . An order to strike out an action or to separate and answer adversely to the plaintiff preliminary questions having the same effect, may not be an appropriate course where the source of doubt as to the "legal viability of a cause of action" is that "the law is in a state of transition". In such a case it may be desirable to reach conclusions on the law after conclusions have been reached on the facts. Evidence may sometimes add substance and understanding to the legal claim, depending on what it is.

Against this background, the Wik made it clear to this Court that the sole relief they sought was that the appeal be allowed and new answers given to the questions formulated by Drummond J (so far as they were still in issue and it was appropriate to answer them). The proceedings could then be returned for trial. They did not seek to formulate declaratory or other relief in this Court. This was because it is of the essence of their contentions that the proper elucidation of their entitlements to native title would be found after evidence is adduced, and factual findings made, concerning the incidents of the title enjoyed under the pastoral leases when compared with the proved characteristics of the native title of the Wik.

The Wik could only have stood to lose from the procedure adopted by Drummond J. That is why it was, in effect, a strike out application or demurrer to their claim. If any of the questions remaining in contest are answered favourably to the Wik, it was enough for them that the proceedings should be returned for trial. Any future elucidation or elaboration of such complex questions as the relationship in this case between pastoral leases and native title could be better attempted against a thorough understanding of the facts, including the variations in place and time both of the incidents of the pastoral lease in question and the native title claim. If the threshold could be passed, the Wik would then be in a position to take their claim to trial.

PASTORAL LEASES

Common ground

Despite the strenuous contest over matters of great importance which this litigation has presented, many points relevant to its determination were either agreed or not seriously in contest amongst the parties:

1. There was no challenge to the principle established by Mabo [No 2]that the duty of this Court (as of every Australian court) is to apply the common law and relevant statutes although this could lead to the extinguishment or impairment of native title. This Court, established by the Constitution, operates within the Australian legal system. It draws its legitimacy from that system. Self-evidently, it is not an institution of Aboriginal customary law. To the extent that native title is recognised and enforced in Australia by Australian law, this occurs because, although not of the common law, native title is recognised by the common law as not inconsistent with its precepts ^[F596] . This does not mean that, within its own world, native title (or any other incidents of the customary laws of Australia's indigenous peoples) depends upon the common law for its legitimacy or content. To the extent that the tide of history has not washed away traditional laws and real observance of traditional customs, their legitimacy and content rest upon the activities and will of the indigenous people themselves ^[F597] . Two centuries of interaction between Australian law and such traditional laws and customs have doubtless affected the latter, often to their detriment. Now, the decision in Mabo [No 2],the enactment of the Native Title Act 1993 (Cth) and other legislation have begun a process which may protect and reinforce some aspects of traditional laws and customs. But no dual system of law, as such, is created by Mabo [No 2]. The source of the enforceability of native title in this or in any other Australian court is, and is only, as an applicable law or statute provides. Different considerations may arise in different societies where indigenous peoples have been recognised, in effect, as nations with inherent powers of a limited sovereignty that have never been extinguished ^[F598] .

This is not the relationship which the indigenous people of Australia enjoy with the legal system of Australia. For Aboriginal legal rights, including to native title, to be enforceable in an Australian court, a foundation must be found within the Australian legal system ^[F599] . These truisms do not resolve all of the issues concerning the relationship between the Australian legal system and Aboriginal law and custom, including as to native title. It will be necessary to return to some of the differences which have emerged.

2. No party challenged the decision in Mabo [No 2]. No party sought leave to reargue the correctness of Mabo [No 2] or the fundamental principle which it establishes, contrary to the previous understanding of the law, that native title to land survived the Crown's acquisition of sovereignty in Australia. The respondents did not contest the importance of the Court's decision in Mabo [No 2]or the necessity which that decision imposed to accommodate the new understanding of native title rights within a legal system which, for two hundred years, had developed in great detail on the basis of a completely contradictory assumption. The position of the parties contesting the submissions of the Wik and the Thayorre was, not that Mabo [No 2]was wrongly decided, but that, contained within its holdings, or implicit in a logical development of its reasoning, were conclusions sustaining the answers given in the Federal Court to the questions isolated in this case.

3. No party contested the determination in Mabo [No 2] that upon annexation of the Australian territory, sovereignty over every part of Australia passed to the Crown which thereupon acquired a radical title in respect of all such land. There was no contest that the Crown, as Sovereign, had the power, in accordance with law, to deal with land in every part of Australia. To the extent that it did so in a way inconsistent with Aboriginal law and custom or native title, the latter would, to that extent, be liable to extinguishment or impairment.

4. There was some discussion during argument about Aboriginal traditions and customs other than in relation to possession of land. However, as pleaded, this case is not concerned with claims of a sentimental or ceremonial kind. It is not concerned, as such, with rights of a spiritual or religious character. It is concerned with interests in land. It presents the question whether the grants of the pastoral leases proved constituted such an exercise of the acquired sovereignty over Australia as to extinguish the vulnerable native title which, until then, had survived such acquisition of sovereignty.

5. Although there was also some discussion during argument about the precise character and qualities of the Crown's radical title ^[F600] and about the character and qualities of native title, these questions do not have to be exhaustively determined. It was suggested that native title was allodial in character, ie that land in which the relevant Aboriginal clan or group held native title would be held as their absolute property and not as an estate from a Lord or superior. By conventional doctrine, no land in England, at least after the Conquest, was held allodially ^[F601] . The highest estate known to the common law was one in fee simple. In a context in which this fiction of English land law, derived from feudal times, has long been criticised as inappropriate to Australian land law ^[F602] , it scarcely seems helpful to attempt to categorise the laws and customs of Australian Aboriginals as allodial in terms of the Lex Salicaof Roman law. It seems safer to agree with Macfarlane JA in Delgamuukw v. The Queen in Right of British Columbia ^[F603] that Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary ^[F604] . Interesting although these issues may be, they do not have to be resolved at this stage of the present litigation.

6. No one disputed that, as a matter of fact, members of the Wik and the Thayorre had remained upon, travelled in and out of, and utilised the land the subject of the pastoral leases in question in these proceedings. There was no agreement about the intensity of such usage. Hansard records of debates in the Parliament of Queensland and evidence before Committees of that Parliament suggest that the accepted policy in respect of "blacks" in Northern Queensland at the end of the 19th century was opposed to the establishment there of Aboriginal reserves ^[F605] . The Home Secretary explained that "the aboriginals are by nature hunters, they would feel as if they were imprisoned. I do not propose to deal with them in that way" ^[F606] . This policy was also adopted by the Northern Protector of Aboriginals (Dr Walter Roth). In answer to questions asked of him in Committee he said ^[F607] :

"[Q:] Do they come under your control to round them up into camps? I do not see any clause in the Bill which says I am to put blacks into camps.

[Q:] In certain cases you may require every aboriginal to be drafted away into some camp or reserve? In cases it may be necessary; but I have no idea, and no one else has, of shifting the blacks from their hunting-grounds on to reserves unless it is absolutely necessary to do so.

[Q:] Then you would not have a provision of that kind in the Bill? I have not asked for any.

[Q:] And you would not approve of it? No. ...

[Q:] You do not think it advisable to abolish ... camps and force all the blacks to go on to reserves? Very far from that. How can we keep 18,000 or 20,000 blacks on reserves?"

The Northern Protector of Aboriginals had responsibility for Aboriginals in the districts of Queensland included in the areas claimed by the Wik and the Thayorre ^[F608] . Complaints were later recorded from pastoralists that Aboriginals, roaming and hunting over their traditional lands, sometimes frightened cattle or camped at waterholes. But the Northern Protector of Aboriginals for 1903, in his report to the Queensland Parliament, asserted ^[F609] :

"[T]he principle must be rigidly instilled that the aboriginals have as much a right to exist as the Europeans, and certainly a greater right, not only to collect the native fruits, but also to hunt and dispose of the game upon which they have been vitally dependent from time immemorial. Were the assumption just mentioned to be carried to its logical conclusion, and all available country leased or licensed, we should have a condition of affairs represented by a general starvation of all the aboriginals and their concurrent expulsion from the State".

In an earlier report, the Northern Protector had stated ^[F610] :

"It would be as well, I think, to point out to certain of these Northern cattle-men (at all events those few amongst them who regard the natives as nothing more than vermin, worthy only of being trampled on) that their legal status on the lands they thus rent amounts only to this: There is nothing illegal in either blacks (or Europeans) travelling through unfenced leasehold runs. These runs are held only on grazing rights - the right to the grass - and can only be upheld as against people taking stock, & c., through them. It certainly is illegal for station-managers, & c., to use physical force and threats to turn blacks (or Europeans) so travelling off such lands. Carrying the present practice (might against right) to a logical conclusion, it would simply mean that, were all the land in the north to be thus leased, all the blacks would be hunted into the sea."

Because the Wik and the Thayorre were not banished from the lands in question, still less hunted into the sea, the issue presented by this aspect of these proceedings was not whether infactthe Wik and the Thayorre had physically remained on their traditional lands. It was simply whether inlawthey did so in pursuance of the native title rights which the common law recognised and which the common law and the Native Title Act 1993 (Cth) would now protect. Or whether such rights had been extinguished by the Crown's action in granting pastoral leases under legislation, which action was said to be inconsistent with the continuance of native title rights.

7. Several of the respondents appealed to the Court to confine any holding in this case to the peculiarities of pastoral leases in Queensland and the suggested additional peculiarities, as between each other, of the pastoral leases granted in respect of the Holroyd River Holding and the Mitchellton Pastoral Holdings No 2464 and 2540 affecting the traditional lands of the Wik and the Thayorre. The Holroyd River Holding is the pastoral lease referred to in question 1B in this case. The leases in respect of the Mitchellton Pastoral Holding are the subject of question 1C. The Wik are concerned principally with the Holroyd River Holding. The Mitchelleton Pastoral Holding is principally the concern of the Thayorre. The Thayorre's claim to native title around the Edward River in Northern Queensland includes areas within the Mitchellton Holding. Because part of this land is within the southern portion of the Wik's claim, the Thayorre were joined in these proceedings. To a large extent the Thayorre made principal cause with the Wik on the common issue of the effect of pastoral leases generally upon native title. But the history of each pastoral lease was different. The point was fairly made that not all pastoral leases, including not all of them in Queensland, would reflect the same history and depend on the same statutes and instruments of pastoral lease as did the Holroyd and Mitchellton Holdings. As will be shown, these holdings evidence minimal, if any, activity on the part of the pastoral lessees in exercise of their leasehold rights. Such would not necessarily be the case in other pastoral leases. Therefore, a decision should not be made the present case on an assumption that the leaseholds in question here were necessarily typical or representative of Queensland pastoral leases generally. To the extent that native title was not extinguished, as a matter of law, by the fact or necessary concomitants of the grant of a leasehold interest, each such interest would have to be considered individually.

a fortiori , be ^[F611] ) needed to be separately considered. The different contractual and legislative formulae which exist in this regard in the several States and in the Northern Territory were explained. If the fact, or necessary incidents, of the grant of a pastoral lease did not, without more, extinguish any surviving native title, it was common ground that this Court should confine its attention to the particular leases in question in this case. It should avoid the expression of unnecessary generalisations which might cause problems in future native title claims in Queensland and, in significantly different legal settings, elsewhere in Australia.

8. There is also a point concerning the role of the courts which should be mentioned for it was referred to in submissions. Various submissions acknowledged the injustices suffered by Australia's indigenous peoples as a consequence of the substantial extinguishment, after 1788, of their traditional laws and customs, including native title. Thus, the Commonwealth admitted that acceptance of its submissions, upholding the determination of Drummond J on the effect of pastoral leases, could be regarded as "the hard view", the "tough view" and one which "the Commonwealth will completely admit is an unsatisfactory result so far as the present position of Aboriginals, or of those claiming native title, may be concerned" ^[F612] . Nevertheless, the Court was repeatedly reminded of the limits of the proper function of the courts in resolving the present claim according to law. Effectively to take away the property rights conventionally assumed to have been granted and previously enjoyed by those holding land by or under pastoral leases is an equally serious matter given the law's respect for, and protection of, property rights ^[F613] . The radical rewriting of the property rights of Aboriginals, pastoralists and those taking under them is a matter for legislation; not a court decision. So much may be accepted. No one doubts the limits of this Court's functions in stating what the law is. But just as in Mabo [No 2],there is room for difference as to where the boundary lies. The Court cannot disclaim the responsibility of determining the legal claims advanced for the Wik and the Thayorre. Those claims are before the Court to be decided according to law. A new ingredient has been injected into the previously settled land law of Australia by the decision in Mabo [No 2]. Settled principles and assumptions must be re-examined to accord with the decision of the Court in that case.

Where there is no precise holding on the point (and no valid legislati on resolving any doubt) the Court must reach its decision upon the competing legal contentions of the parties: finding the applicable rule by the use of the normal techniques of judicial decision-making, viz reasoning by analogy from established legal authority illuminated by relevant legal history and informed by applicable considerations of legal principle and legal policy ^[F614] .

9. No one doubted the significance of the issue tendered to the Court. Various estimates were given of the area of land in Australia covered by pastoral leases. For the Commonwealth it was put at 42% in aggregate. In various States, estimates of 70 to 80% of the land surface were mentioned. The systems of Crown leases introduced into New South Wales and Queensland were particularly "complex and diversified ^[F615] ":

"[The law] ... introduced a system of Crown leasehold tenures which led to the whole of Australia being transformed in subsequent decades into a patchwork quilt of freeholdings, Crown leaseholdings, and Crown 'reserves' ...

The result in each State, as Millard has said of New South Wales, is 'a bewildering multiplicity of tenures ^[F616] .' Gone is the simplicity of the modern English law as to tenures. Gone is the senile impotence of the emasculated tenurial incidents of modern English law. New South Wales and Queensland are in the middle of an historical period in which the complexity and multifarious nature of the laws relating to Crown tenures beggars comparison unless we go back to the mediaeval period of English land law. ... [I]n no Australian State or dependant Territory are these laws nearly as simple as is the modern English law as to tenures. ...

Of all Australian States, Queensland is that in which the largest fraction of total area is held by Crown tenants on various kinds of non-perpetual Crown leasehold tenures ^[F617] , and in which there exists a remarkable multiplicity of Crown leasehold tenures.

There are approximately seventy different kinds of Crown leasehold and Crown perpetual leasehold tenures in Queensland. ^[F618] "

The issues at stake in these proceedings are therefore important. If the primary argument of the contesting respondents is accepted, this Court's holding in Mabo [No 2],that native title survived the annexation of Australia to the Crown and the acquisition of the Crown's radical title, is revealed as having little practical significance for Australia's indigenous people over much of the land surface of the nation. The vulnerability of native title to extinguishment by the fact or necessary incidents of a grant of a pastoral lease over the land is revealed in sharp relief. The effective operation of the Native Title Act 1993 (Cth) and like legislation, as well as claims under the general law, recede to apply only to the balance of Australia's land surface after the grants of estates, including freehold ^[F619] and pastoral leaseholds (without relevant reservations), are deducted. This is all the more significant to indigenous peoples as the parts of Australia where their laws and traditions (important to sustain native title) are most likely to have survived include those where pastoral leases are likely to exist. On the other hand, the issues are equally important for lessees under pastoral leases, those taking under them, potentially those holding other title to land, governments, mining interests and the population generally.

10. Finally, there is a further consideration of a practical kind. If the threshold objection to the claim of the Wik and the Thayorre, upheld by Drummond J, is set aside, these proceedings would be returned for trial. The position of the parties would then be uncertain. The rights of Aboriginal and non-Aboriginal Australians in respect of land affected by pastoral leases would be left unclear: awaiting elucidation in this and many other cases unless earlier resolved by valid legislation. This would be so in an area of the law's operation where certainty and predictability have conventionally been accorded high importance. Conformably with the legal rights of those involved, the avoidance of unnecessary doubt and confusion is a proper objective of land law.

Mabo [No 2] does not resolve the claims

In judging what Mabo [No 2]decides, it is helpful to consider the three possible doctrinal solutions in respect of grants of pastoral leases which compete for acceptance:

(1)

The exercise of sovereignty test: That once the Crown proceeded in any way to convert its ultimate or radical title into some other estate or interest in land, it exercised its sovereignty. In doing so, necessarily and without anything more, it extinguished any fragile native title interests in the land affected.

(2)

The inconsistency of incidence test: That once the Crown's ultimate or radical title was converted, by the exercise of sovereignty into an estate or interest in land, the question became whether that estate or interest, of its legal character, was inconsistent with the continuance of native title in the land. The question was not whether the estate or interest had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. The issue was one of legal theory, not detailed evidence.

(3)

The factual conflict test: That the issue is in every case one of actual or practical inconsistency between the estate or interest conferred in the land (in this case the pastoral lease executed pursuant to statute) and the actual exercise of surviving native title rights. If, in actuality, the two may be reconciled, the native title rights are not extinguished. They survive as a continuing burden on the Crown's radical title.

Much of the argument in the Federal Court, and in this Court, concerned a suggestion that the decision in Mabo [No 2],either in the language of the majority reasons or by logical inference from what was there held, required the result to which Drummond J gave effect. This was that the grant of pastoral leases under the relevant Queensland legislation, without more ^[F620] , extinguished any native title right which the Wik or the Thayorre had previously enjoyed in respect of the Crown land the subject of the leases. In so deciding, Drummond J held that he was bound by the majority decision of the Full Federal Court in the Waanyi Case ^[F621] . There was no basis for holding that any of the leases involved in the Wik or Thayorre claims were distinguishable from the pastoral lease considered in the Waanyi Case. Because all of the leases granted exclusive possession of the areas specified in them it necessarily followed that the grant of such interests extinguished the native title rights of the Wik and the Thayorre.

In the Waanyi Case Hill J ^[F622] , with whom Jenkinson J agreed on this point ^[F623] concluded that the issue was resolved by the reasoning of this Court in Mabo [No 2]. As this is also the ultimate foundation of Drummond J's conclusion in this case, it is appropriate to note the reasoning ^[F624] :

"There was agreement by the majority of the court that the grant of a freehold title necessarily operated to extinguish native title. Once it was extinguished it could not be revived. The matter depended not on subjective intention but, as Brennan J observed ^[F625] on 'the effect which the grant has on the right to enjoy the native title'. At that page his Honour said:

'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 '.

Later his Honour referred to the grant of interests in land inconsistent with the right to continued enjoyment of native title ...

The exposition given by Deane and Gaudron JJ is slightly different from that of Brennan J. ...

However, it is clear that [they] were of the view that a lease would operate to extinguish native title. Thus their Honours said ^[F626] :

'The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown ...'."

Whilst acknowledging that the opinions extracted "may strictly be dicta", Hill J regarded them as "of the highest authority" and adopted them ^[F627] .

Convenient as it would be if it were otherwise, I cannot accept that the cited passages relied on from Mabo [No 2],other passages referred to, or the conclusions inherent in the majority reasoning require the conclusion that the grant by the Crown of any leasehold interest in Crown land necessarily extinguishes native title in that land.

There were two leases involved in the decision in Mabo [No 2] ^[F628] . The first was one of two acres of land on Mer Island in the Murray Island group. This had been granted by the Crown to the London Missionary Society in 1882. It was for a term of years. The second lease by the Crown was granted to two non-Islanders over the whole of the islands of Dauar and Waier, for a term of 20 years for the purpose of establishing a sardine factory. The latter lease contained a condition that the lessees should not obstruct, or interfere with, the use by Meriam people of the islands for gardens and the surrounding waters for fishing.

In Mabo [No 2],the consequences of the Crown's grants of the two leases constituted an issue subordinate to the main questions which this Court had to determine. It is unsurprising, therefore, that the Court withheld conclusive answers on the effect of leases on the survival of native title. Given the great number and variety of Crown leasehold interests in Queensland law ^[F629] , the decision in Mabo [No 2]would not, in any case, have provided a conclusive answer to the effect of a pastoral lease on native title, unless the first of the doctrines stated above had been clearly embraced. If the leases described in Mabo [No 2]were sufficient to evidence the exercise of sovereignty and, without more, to expel any residual native title, the same logic would apply to every leasehold interest, including pastoral leases. The reasoning offered by the Court in Mabo [No 2]does not uniformly sustain this thesis. The orders of the Court are inconsistent with it.

The passage from the reasons of Brennan J at page 68 of Mabo [No 2], partly extracted above by Hill J in the Waanyi Case ^[F630] , deserves to be cited in full because it was the linchpin of much of the argument of the contesting respondents:

"A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title. 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 . Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable".

As I read this passage, it contains the seeds of each of the three theories stated above. However, it cannot be reconciled with the first theory because, by that theory, any exercise by the Crown of sovereignty in respect of the land, however slight, would necessarily be inconsistent with native title rights and would extinguish them. This would certainly have been so in respect of the leases discussed in Mabo [No 2]. It would even have been so in respect of the conversion of the Crown's radical title to the creation of a reservation for public purposes over the land.

The passage relating to the expansion of the Crown's radical title into a plenum dominium , such that there is inherent in any leasehold the creation of a reversion expectant, comes closest to the second theory. Yet, by the application of that doctrine, the expansion of the Crown's radical title for the purpose of granting the two leases in question wouldipso factohave extinguished native title in the lands affected by the leases simply because that was an incident of the legal character of a common law lease.

The reasons of Mason CJ and McHugh J in Mabo [No 2] ^[F631] included a qualification that the formal order of the Court should be "cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration ...". The actual declaratory order made by the Court ^[F632] therefore excluded the lands the subject of the two leases. That order defines what it is that this Court held. Clearly, therefore, in the reasoning of individual Justices, the effect of the grant of leasehold interests upon native title rights is not authoritatively decided. There are dicta in the reasons of Deane and Gaudron JJ ^[F633] to the effect that an unqualified grant of an inconsistent estate, whether in fee or by a lease conferring a right to exclusive possession, could extinguish native title. But their Honours clearly rejected the first theory propounded by observing that the lease of two of the islands for a term of 20 years for the purpose of establishing a sardine factory did not of itself extinguish native title rights. Nor did it have any continuing adverse effect upon native title ^[F634] . Toohey J agreed that the issue of the effect of the leases did not have to be determined in Mabo [No 2] ^[F635] .

Returning, then, to the passage in the reasons of Brennan J, extracted above, in so far as it concerns the effect of a lease on native title, it is not part of the binding rule established by Mabo [No 2]. The reasoning of all Justices in the majority appears to be inconsistent with the first theory which I have indicated. Moreover, as Lee J pointed out, in dissent, in the Waanyi Case ^[F636] when it was before the Full Federal Court:

"If the act of reservation by the Crown of a discrete area of Crown land for the express purpose of dedicating it for use as a school, courthouse or public office, or the appropriation and use of Crown land if that use is consistent with the continuing current enjoyment of native title does not extinguish native title ^[F637] , there must be ample scope for the argument that the grant of a statutory leasehold interest by the Crown, in the form of a pastoral lease over waste land, is not intended to exclude concurrent enjoyment of native title and to extinguish that title."

Once one has descended to the particularity of the facts as to whether a school, courthouse or other public building has been erected on the land or not, attention has shifted from consideration of pure legal theory to a consideration of factual inconsistency and the state of the evidence.

Although the discussion of the effect of the leases in Mabo [No 2]is helpful as identifying some of the problems which are presented by the rather different leases in question in the present claims,Mabo [No 2]does not provide the solutions. It was understandable that Hill J (with the concurrence of Jenkinson J) in the Waanyi Case ^[F638] should have turned to the dicta of Brennan J about the leases in Mabo [No 2]to seek analogies for the pastoral leases competing with the Waanyi claim. However, I prefer the analysis of Lee J in that case ^[F639] . Mabo [No 2] failed to resolve the basic questions. That is why some of them remain to be decided in these proceedings.

Pastoral leases

It is useful to record, briefly, something of the history of the emergence of pastoral leases in Queensland. As a result of the different patterns of availability and utilisation of land in England, such leases were unknown in that country. They are creatures of Australian statutes ^[F640] .

Moves to depasture stock outside the concentrated settlements in New South Wales first began without official sanction in the late 1820s. They continued in the following two decades. So-called "squatters" simply moved onto land unoccupied by other squatters and took possession of that land without any right or title to it ^[F641] . Faced with this fait accompli,the New South Wales legislature enacted the "Squatting Acts", instituting a system of pastoral licences ^[F642] . For a fixed annual licence fee holders of such licences were permitted to occupy land outside the settled districts for pastoral purposes. The squatters objected to the intrusion into theirde factoactivities. The Government was concerned about uncontrolled activities on Crown land, particularly where the land was acquired without payment, unsurveyed and beyond legal and administrative control ^[F643] . Hence the Crown Lands Unauthorized Occupation Act 1839 (NSW) established a border police force "for the mutual protection and security of all persons lawfully occupying or being upon the Crown lands beyond the limits allotted for location ...". That Act clearly contemplated Aboriginals "being upon" Crown lands, including those lawfully occupied by the holders of licences ^[F644] . Regulations made in 1839 provided that such licences could be cancelled if the licencee were convicted "of any malicious injury committed upon or against any aboriginal native or other person ..." ^[F645] .

By the Sale of Waste Lands Act 1842 (Imp) (5 & 6 Vict c 36), the Imperial Parliament brought all grants of Crown land under legislative supervision. In 1846, the Imperial Parliament enacted the Sale of Waste Lands Act Amendment Act 1846 (Imp) (9 & 10 Vict c 104). By s 1, it was made lawful for Her Majesty to "demise for any Term of Years not exceeding Fourteen, to any Person or Persons, any Waste Lands of the Crown in the Colonies ...". This Act was implemented in New South Wales by Order in Council of 9 March 1847 ^[F646] . By Chapter II s 1 of the Order in Council, the Governor was empowered to grant leases of land in the unsettled districts for any term not exceeding fourteen years for pastoral purposes. There was nothing at all in any of the foregoing legislation, unless it was that the interests granted were called "leases" and "licences" which evidenced an intention of the Crown to grant possession over the lands in question to the exclusion of the Aboriginal subjects of the Crown. Contemporary documents, including communications by Earl Grey, Secretary of State for the Colonies, to the Governor of New South Wales, Sir Charles FitzRoy, indicate that this was not intended, at least by the Imperial authorities ^[F647] :

"[I]t should be generally understood that Leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such Land as they may require within the large limits thus assigned to them, but that these Leases are not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated or fenced in for that purpose ^[F648] ."

A further Order in Council of 18 July 1849 ^[F649] was declaratory of existing rights under the Sale of Waste Lands Act Amendment Act 1846 and the Order in Council of 9 March 1847. Thereafter, pastoralists outside the settled districts of the colony held their lands on leases of 8 or 14 years duration, for low annual rents. A right of resumption was retained by the Crown and a right of pre-emption of the fee simple of the land, or part thereof, was granted to the Crown's leasehold tenants.

These developments provide the common starting point for the evolution of Crown leasehold tenure, including pastoral leases, in what are now the States of New South Wales, Queensland, Victoria and Tasmania ^[F650] .

In February 1842, land in the Moreton Bay District was first opened for free settlement ^[F651] . The laws applicable were those of the colony of New South Wales of which it was then part. In May 1842 a Commissioner for Crown Lands for the Moreton Bay District was appointed pursuant to the Crown Lands Unauthorized Occupation Actsof 1839-1841 ^[F652] . As the new settlement expanded, pressure grew for other districts to be opened up for the use of land within them for pastoral purposes. The occupation of waste lands of the Crown for such purposes initially mirrored the unauthorised expansion which had taken place elsewhere in the colony.

Self-government was granted to New South Wales in 1855. In June 1859 Queensland separated from New South Wales ^[F653] . However, the laws of New South Wales, including those regulating the "sale, letting, disposal and occupation" of wastelands of the Crown, remained in force until repealed or varied by the legislature of the new colony ^[F654] . That legislature had the power to make laws with respect to land use. Thereafter, the Queensland Parliament adopted and elaborated the form of pastoral lease which had earlier evolved in New South Wales. There followed, up to recent times, a large number of statutes with provisions for, or affecting, pastoral leases ^[F655] . The point of referring to them is to demonstrate the extent to which the Queensland Parliament regulated the incidents of pastoral leases in the colony. Most of the statutes contained express provisions conferring rights on third parties over a pastoral lease, inconsistent with the submission that the lease conferred rights of exclusive possession upon the lessee.

By the successive Queensland Acts, rights to possession were subject to various exceptions. Thus, the Land Act 1910 (Q), pursuant to which the instrument of lease of the Mitchellton Pastoral Holding was granted, provided for reservations of a right of access for the purpose of the search for, or working of, any mines of gold or minerals (s 6(3)); the right of a land ranger to enter a holding to "view the same and observe the manner of residence or occupation" (s 14(3)); a right of entry to a person authorised by a Minister to survey, inspect or examine land the subject of a lease (s 14(4)); a power of the Commissioner appointed under the Act to cause inspections of all land within the District of the lease (s 139); a provision to grant a licence to cut timber on leasehold land or to remove stone, gravel, clay, guano or other material (s 199(1)); a right of a licensee to use animals and vehicles to remove timber or materials and to depasture such animals (s 199(1)); a right in a person duly authorised by law to cut or remove timber or material without restriction by the pastoral lessee (s 200); and a right of pasturage for travelling stock (s 205). Such rights enjoyed by third parties, are not confined to the Land Act 1910 (Q). Many of the statutes referred to above contain similar provisions. Their existence gave rise to competing submissions in this appeal. For the Wik and the Thayorre, they showed that the Queensland Parliament had never intended, by calling a pastoral lease a "lease", and using other terminology apt to describe a lease at common law, to assimilate the special kind of statutory lease created, to a lease at common law. The fundamental element explained in Landale v. Menzies ^[F656] was missing, viz a "contract for the exclusive occupation of land for a determinate period, however short ...". For the contesting respondents, however, the very need, in the statutes, expressly to reserve rights of entry and inspection demonstrated an acceptance that, in the absence of such reservations, the pastoral lease would, in law, permit exclusion of anyone on the ground that that was the character of a lease. The latter view enjoyed the support of early Queensland Supreme Court decisions ^[F657] written, of course, without any need to address the problem presented by the subsequent decision in Mabo [No 2].

None of the foregoing Queensland legislation expressly abolished Aboriginal native title. This is scarcely surprising, having regard to the then understanding of the law, that such title had not survived annexation of Australia to the Crown. Nor did the legislation expressly provide for the curtailment or limitation of Aboriginal rights, or any manner of dealing with the land from which could be inferred the purpose of abolishing Aboriginal native title. Again, this is unsurprising, in light of the understanding of Aboriginal legal rights at the time, the provisions in limited legislation about particular aspects of Aboriginal policy and the then prevailing policy of ignoring Aboriginals, leaving them as far as possible untouched by Australian law in the expectation, and hope, that they would become "civilised", assimilated or otherwise disappear as a "problem" ^[F658] .

It now falls to legislatures and courts to work out the consequences of the failure of this earlier social and legal strategy. There is an inescapable element of artificiality, in looking back over Australian legal history, which developed upon a particular hypothesis about Aboriginal legal rights, and endeavouring to reinterpret that history with the knowledge afforded by Mabo [No 2]. But it is important to understand that the decision in Mabo [No 2]was not a legislative but a judicial act. It did not declare that thenceforth native title would be recognised. It held that native title had always existed ^[F659] . It had survived the advent of the sovereignty of the Crown in Australia. It was recognised by the common law. It would be enforced unless clearly extinguished. Thus the search must now be conducted to find indications of extinguishment. It is a search conducted at a disadvantage because it relies upon legal materials written in a completely different legal environment of contrary understandings and beliefs. One of the founders of the Australian Constitution, Alfred Deakin, stated that the judicial method enabled "the past to join the future, without undue collision and strife in the present" ^[F660] . In this case the present must revisit the past to produce a result, wholly unexpected at the time, which will not cause undue collision and strife in future.

The pastoral leases in this case

The Holroyd River Holding covers an area of 2,830 square kilometres. The Mitchellton Holding, expressed in the old measurements, is said to cover an area of 535 square miles (approximately 1385 square kilometres).

The first Mitchellton lease was issued under the Land Act 1910 (Q) ("the 1910 Act") on 1 April 1915. However, it was forfeited for non-payment of rent in 1918. The second Mitchellton lease was also issued under that Act in 1919. It was surrendered in 1921. Possession was never taken by the lessee under either of these two leases. Since 12 January 1922, the land, formerly the subject of the Mitchellton leases, has been reserved for the benefit of Aboriginals, held for and on their behalf. The Holroyd River Holding lease was originally issued under the 1910 Act in 1945. That lease was surrendered in 1973. A new lease was issued on 27 March 1975 under the Land Act 1962 (Q) ("the 1962 Act"). The lease was issued to the same persons for a term of 30 years with a commencing date of 1 January 1974.

The lease documents for the Holroyd River Holding are instructive. They show that there was no irrigation on the property. It was served by natural waters only. It was said not to be fit for fattening cattle. It was purely suitable for breeding cattle. Its carrying capacity in fair seasons was approximately 1 beast to 60 acres. This could be increased by fencing and the supply of additional waters but the cost of doing that was unknown and the lessees were recorded as displaying no intention of doing so. The cattle carried on the holding were running under open range conditions. The lessees disclosed that there were no improvements whatsoever on the property. In answer to a question concerning the nature and estimated cost of any improvements proposed to be made they stated "Nil at present". As to land "cultivable or suitable for the introduction of pasture", the lessees stated that there was "Nil". There was no accommodation or amenities for employees on the property at the time of the first return.

When the new lease was issued under the 1962 Act in 1975, certain conditions were imposed. Within five years of the commencement of the new lease the lessees were obliged to construct a manager's residence with quarters for five men and a shed for machinery. They were also to build an airstrip and to erect 90 miles of internal fencing with some yards, a dip and some dams. From a report in 1984 from the relevant government officer who inspected the property, it is clear that there had been little change. The number of stock depastured upon the land was estimated at 1,000 head. The property had been partly destocked to restrain an outbreak of tuberculosis. Its carrying capacity at the time of the inspection was reduced to 1 beast to 55 hectares. The holding was characterised as "Not permanently occupied". As to employees, it was stated that "No one employed at the time of inspection though usually about 12 stockmen are mustering the block in the dry season". None of the buildings required by the above conditions had been built, although an airstrip had been constructed. No seed production area had been established nor was any planned. No boundary fencing had been erected and the lessee did not intend to erect any.

By 1988, a similar inspection report disclosed that the only cattle on the land were feral cattle. There were no branded cattle and only about 100 unbranded. The only occupants of the land, so far as the lessee was concerned, were two sleeper cutter gangs of six men and the contract musterers in the dry season. A machinery shed had been built. But no residential quarters for employees had been constructed. Timber cutters, using their own money, had erected a toilet and shower system. They were recorded as intending to build a house on the holding for their own use. The introduction of helicopter mustering had, in the opinion of the inspector, reduced the necessity to insist on permanent mustering yards. The openness of the country afforded the cattle little means of escape or hiding.

The picture painted of the two pastoral leasehold properties in question in the present case is, therefore, somewhat bleak. Each of them, in remote parts of Northern Queensland, offered to the lessee rudimentary and apparently unpromising conditions for depasturing cattle and conducting associated activities. So unpromising was the first Mitchellton lease that it endured for only three years and was forfeited for non-payment of rent. The second lease lasted for an even shorter period before it was surrendered. On 14 January 1922, by Order in Council of two days earlier, the Mitchellton Holding was reserved for the use of Aboriginal inhabitants of Queensland. According to the evidence, neither of the Mitchellton lessees entered into possession. The Thayorre assert that they never left their ancestral lands. Members of the Thayorre continued living on the land in their traditional way. They would have had no reason (there having been no entry) even to be aware of the grant of any pastoral lease over the land. Soon after the surrender of the lease in October 1921, a reserve was created for them. Given that it is now established that their native title survived the annexation of all Australian land to the Crown, it would require a very strong legal doctrine to deprive them of their native title. Especially because, so far as they were concerned, nothing of relevance had occurred to their land, save for (as it was put in argument) "the signing of documents by people in Brisbane".

The position of the Holroyd River Holding is not so extreme a case. But from the conditions which are described in the pastoral lease documents and from the successive inspectors' reports, it seems a reasonable inference that traditional Aboriginal life would have been little disturbed by the grant of the pastoral lease in that instance. The number of persons entering the land was small and mostly seasonal. The physical improvements were virtually non-existent. In such a large remote terrain, for most of the year, the Wik could go about their lives with virtually no contact with the lessee or the tiny number of stockmen, wood gatherers and occasional inspectors who entered their domain or, more recently, in the case of helicopter pilots engaged in mustering, who flew over it.

To the contesting respondents, these facts were irrelevant. They were not necessarily typical of all pastoral leases in Queensland, still less elsewhere in Australia. The issue to be resolved was one of legal theory. It was the resolution of a conflict of legal titles which was to be decided on legal principles determining legal rights: not factual evidence regarding land use. I have nevertheless described the evidence as to the use of the land in the pastoral leases in this case because the emerging facts illustrate vividly the kind of practical physical conditions for which pastoral leases were created by the Queensland Parliament. Those facts also demonstrate the very limited occupation of the land which was expected and regarded as normal under pastoral leases. They show how Aboriginal law and tradition could readily survive in such an environment because of the very limited contact which was inherent in these pastoral leases, between Aboriginals and those connected with the lessee. The understanding of these facts helps to provide the context against which the application of legal theory must be tested in this case. It also helps to illustrate, and describe, the nature of the pastoral leases which the successive enactments on pastoral leases were designed to permit. They are a far cry from the situation in settled and occupied areas of Australia where the extinguishment of native title has a practical and necessary quality sustaining a legal determination of extinguishment by reference to the legal characteristics of common law or residential leases. In pastoral leases of the kind described in the evidence in this case, talk of "exclusive possession" or "exclusive occupation" has an unreal quality. It may be what the law imputes to the lease at common law. But it would require very clear law to drive me to such an apparently unrealistic conclusion. The common law tends to abhor unreality, even when it is presented as legal doctrine.

Mere exercise of sovereignty doctrine rejected

I now return to the three theories which were suggested as potentially providing the solution to a conflict between the grant of an estate or interest in land under Australian law and native title as a burden on the Crown's ultimate or radical title.

The first theory was one which postulates the extreme fragility and vulnerability of native title. Under this theory, any action, now necessarily by legislation, whereby the Crown's radical title is expanded into an exercise of dominium in respect of the land, necessarily expels native title. This is so, whatever the estate or interest granted. It does not depend upon the precise legal features of that estate or interest.

This theory rests upon the political notion that in the one nation there cannot be two sovereigns. Specifically, there cannot be two sources of title to land. All land is held of the Crown, otherwise the Crown's claim to sovereignty is put in doubt. Even native title is, upon this view, held of the Crown, to the extent that the common law recognises and enforces it. Thus where, in effect by legislation, the Crown grants any estate or interest in land (however limited in rights and time), by the very act of doing so it has exercised its sovereignty in a way that is inconsistent with the common law's recognition of native title, derived from a different source, in respect of the same land. A legal metamorphosis takes place the instant that the paramount or radical title is changed to a dealing in the land. When that occurs the Crown's undoubted sovereignty has been exerted in a way that does not permit the survival of a legal right originating outside the ordinary legal system. To the complaint that it would be extraordinary that the rights of Aboriginal peoples in Northern Queensland, possibly enjoyed for millennia, could be extinguished by the actions of officials in Brisbane of which they were completely unaware, the answer is given: that is the way that sovereign powers of a modern state are exercised. Radical title is not a real title for property purposes. It is more in the nature of a political notion and in that sense a legal fiction ^[F661] . But property rights of any kind are not fictional. They concern the interests of individuals. Where they involve estates or interests in land, their recognition and protection by the legal system is important to the social and economic stability and peace which it is the function of the sovereign to protect and enforce. Thus, where radical title expands through the exertion of sovereignty, to the extent of granting a legal estate or interest in land, that fact alone is sufficient to expel forever native title in such land.

Thereafter, such title as exists must be derived from any further exercise of the powers of the new sovereign which has asserted its rights of sovereignty over the land. On this theory, the grant of a pastoral lease in respect of any land, being an exercise of the sovereign's powers in relation to that land, necessarily extinguishes rights deriving from a competing legal system unless, possibly, those other rights were expressly reserved or exempted and that is not suggested here.

This theory was supported in argument by what was said to be the logic of the explanation in Mabo [No 2]of the way in which, upon the grant of a lease, the "Crown's title is ... expanded from the mere radical title and, on expiry of the term, becomes a plenum dominium " ^[F662] . However, it is not consistent with the analysis of the reasoning of any of the Justices in Mabo [No 2];nor with the Court's holding in that case. Nor is it consistent with earlier analyses of the Privy Council ^[F663] .

In the critical passage in the reasoning of Brennan J in Mabo [No 2] ^[F664] , his Honour implies that it is not the grant of the lease, as such, which has the effect of expanding the Crown's title "from the mere radical title" to a " plenum dominium " but the acquisition of the reversion expectant on the expiry of the leasehold term. This required legal analysis of the consequences of the exercise of sovereign rights in respect of each dealing in the land. So much is implied by the passage which followed, discussing the case where the Crown grants land in trust or reserves or dedicates land for public purposes. This would also be an exercise by the Crown of its rights as sovereign. But clearly it was not regarded by Brennan J as sufficient (without more) to extinguish native title. That title remained a burden on the Crown's radical title despite such exercise of sovereignty.

The first theory is not compatible with the authority of the Court in Mabo [No 2]. The decision of the Court in that case introduced a new and radical notion. It disturbed the previous attempts of the Australian legal system to explain all estates and interests in land in this country by reference to the English legal doctrine of tenure derived ultimately from the sovereign as Paramount Lord of the colonies as he or she had been in England after the Conquest ^[F665] . Now a different source of title must be accommodated by the recognition of the continuance of native title as a burden on the Crown's radical title. Something more is needed to remove that burden, and to extinguish the native title, than a mere exercise by the Crown of rights of dominium in respect of the land. Native title might be subject to extinguishment. However, it is not as fragile as the first theory propounded.

Factual inconsistency doctrine rejected

It is convenient to deal next with the third theory, viz that in order to see whether native title, as recognised in Mabo [No 2],had been extinguished by a grant of an estate or interest in land said to be inconsistent, it is necessary to examine the facts relating to the exercise of rights under such estate or interest. I took this theory to be inherent in the submissions for the Thayorre. Some support for the proposition was derived from passages in the judgments of the Court in Mabo [No 2]. For example, Brennan J, discussing the nature and incidents of native title said ^[F666] :

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty ... It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled 'with the institutions or the legal ideas of civilised society' ^[F667] , that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. These fictions denied the possibility of a native title recognised by our laws. But once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was 'desert uninhabited' in fact, it is necessary to ascertain by evidence the nature and incidents of native title."

By parity of reasoning, it was argued, the survival, persistence and revival of native title under the Australian legal system, notwithstanding a superimposed title from the Crown, was in every case a question of fact. The Crown (acting under legislation) might have the power to extinguish native title. Whether it had done so in the particular case would depend, not upon theoretical possibilities discovered by an examination of the nature of legal instruments, but by evidence concerning the possible reconciliation or inconsistency of the two legal regimes and the concurrent enjoyment of rights deriving from them, as a matter of fact. It was the essence of the Thayorre's primary submission that native title was title outside the common law. In its nature, it had nothing whatever to do with the feudal system of tenures. Because it had its own sources and integrity, it could not be destroyed by a legal theory outside its own regime ^[F668] . It could expire by factual circumstances: dispossession, acquisition, surrender or abandonment. But even then it might later revive. The Australian legal system might determine whether, and if so when, it would grant recognition and enforcement to native title. But the title itself, being derived from an entirely different legal source, would continue to exist whatever the Australian legal system said, until it was acquired from, or surrendered or abandoned by, the indigenous people themselves.

It was suggested that this theory would apply equally to native title in respect of land granted in fee simple as to land demised by lease, including a pastoral lease. Dicta in Mabo [No 2]suggest that the grant by the Crown of title in fee simple necessarily extinguishes native title ^[F669] . That conclusion is compatible with earlier Privy Council decisions explaining how native title could be lost "[b]y the will of the Crown and in exercise of its rights" ^[F670] . The Thayorre did not resile from their argument. Whether, in a particular case, native title would be recognised by the common law was, for the Thayorre, a question of fact to be answered by examining the current state of the native title in order to see whether it could be reconciled with the exercise of the competing title granted under Australian law. If it could not, the latter would prevail, simply because of the ascendancy and power of the Australian legal system. The native title would continue to exist. It would simply not be enforceable in an Australian court.

Whilst this submission has certain attractions, it is supported neither by legal authority applicable to this country nor by legal principle or policy. It may be conceded that some of the passages in the reasoning of Mabo [No 2]can be read to suggest that, in a particular case, where native title is claimed and extinguishment is asserted, the task is to find the factual, as distinct from the legal, content of a supervening title from the Crown. The contemplation that native title could survive the expansion of the Crown's radical title into a grant of land on trust or for reserves ^[F671] or is lost only when a school, a courthouse or a public building is erected on such land ^[F672] , may be interpreted as suggesting that the search in each case is for evidence about the factual use of the land. However, this is not the legal principle which I take Mabo [No 2]to establish. What is in issue istitlein respect of land. It is therefore a question about the existence or otherwise of rights of a legal character in respect of the land. As such, it is not a question about the intention or actions of the Aboriginal parties, any more than of the Crown or governmental officials. The question is not whether indigenous people havein factbeen expelled from traditional lands but whether those making claim to such lands have thelegal rightto exclude them. The parties have come to the Court for the elucidation of their legal rights. I read the passages in Mabo [No 2]as saying no more than that facts will generally have to be explored in order to decide whether claims to native and other title can be established ^[F673] . The proof of native title by detailed evidence is necessary because such title, unlike Australian title from the Crown and other title under Australian law, is not inscribed in official records.

The theory accepted by this Court in Mabo [No 2] was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law in Australia said so ^[F674] .

To suggest that the actual conduct of a pastoralist, under a pastoral lease, could alter the rights which the pastoralist and others enjoyed under the lease, would be tantamount to conferring on the pastoralist a kind of unenacted delegated power to alter rights granted under the Land Acts. This cannot be. It would introduce a dangerous uncertainty in the entitlements to land of all people in Australia to adopt such a principle. The search must therefore be one which is first directed at the legal rights which are conferred on a landholder by the Australian legal system. This is because legal title and its incidents should be ascertainable before the rights conferred are actually exercised and indeed whether they are exercised or not. In some cases the grant of such legal rights will have the inevitable consequence of excluding any competing legal rights, such as to native title. But in other cases, although the native title may be impaired, it may not be extinguished. The answer is to be found in the character of the legal rights, not in the manner of their exercise ^[F675] .

Arguments for extinguishment of native title

I therefore return to the second theory about the extinguishment and impairment of native title rights, which is the one that I take Mabo [No 2]to have established and which I would apply in this case. The question is whether the legal character of the pastoral leases in the present case, discernible from their terms and the rights afforded under them, had the necessary legal effect of extinguishing the native title claimed by the Wik and Thayorre.

Several strong arguments were marshalled to support extinguishment:

1.

As a matter of authority, the opponents to the claims of the Wik and the Thayorre relied heavily on the passage in the reasons of Brennan J in Mabo [No 2]already cited ^[F676] . Even if this were not part of the holding in the case, binding until reversed or qualified, it represented the only consideration by this Court of the effect of the grant of a lease on native title ^[F677] . In the application and development of this body of law, it is highly desirable that consistency and predictability should be maintained. Moreover, it is undesirable that the basic tenets of Australian land law should be disturbed, more than is absolutely necessary, by the belated recognition of native title.

2.

It was argued that the absence of express abolition of native title by the Land Actsunder which the pastoral leases in question were granted was not important for several reasons:

(a)

Both the Land Actsin question and the instruments granting the relevant interests are expressed in terms of a "lease". A lease is a legal interest well known to the common law. Where a word such as "lease" is used in the Acts of Parliament, it should be presumed that it was the purpose of the legislators to use the word in its ordinary meaning. That meaning includes the concept that it is the intention of the parties that the grantee will be entitled to exclusive possession of the property, the subject of the lease. Where it is otherwise, what is granted is a licence and not a lease ^[F678] . Conceding that the word "lease" is sometimes used where "licence" is meant ^[F679] , it should nonetheless be assumed, in the technical area of land law, the subject of successive and detailed enactments of the Queensland Parliament, that the drafters knew what a "lease" was in law and intended to use the word in the technically accurate sense ^[F680] . Any doubts or confusion which they may have had at an earlier historical time would have been removed by decisions of the Queensland Supreme Court before the 1910 and 1962Land Actswere enacted and before the grant of any of the pastoral leases in issue here ^[F681] . It is of the essence of a "lease" in the ordinary meaning of that term, that it must be for an estate or term less than the lessor has in the property. Otherwise, an instrument which passes the entire interest of the grantor is a conveyance or assignment and not a lease. It was this attribute of a lease which was critical to the respondent's argument resting on the reversion expectant ^[F682] .

According to this notion, it was inherent in the Land Acts(although not expressed in them) that, in order that it might grant a lease to the lessee, the fundamental legal character of the Crown's interest in the subject land must have changed. Its title had "expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium " ^[F683] . Such a metamorphosis was implicit in, and necessary to, the Crown's capacity to found a grant of a leasehold interest, including a pastoral leasehold under statute. Not only was this an essential postulate to sustain the grant of a legal right called a "lease". It was equally necessary to explain the Crown's interests, elsewhere reflected in the Land Acts, to protect the land and to receive the reversion on expiry, forfeiture or surrender of the lease ^[F684] . The successive Land Acts, by expanding the Crown's dominium in order to sustain the grant of interests called "leases" had necessarily moved from the "logical postulate" of a radical title to the holding of an interest in the particular parcel of land which was sufficient to expel any residual native title.

(b)

Alternatively, or additionally, the lessee's entitlement to exclusive possession which was itself sufficient to extinguish native title in the land was supported by both general and specific references to the instruments creating the pastoral leases and the Land Actsunder which they were issued. The instrument of lease under the 1910 Act is titled "Lease of Pastoral Holding ...". The recital refers to the entitlement of the lessee to "a Lease" for a specified "term" and at a yearly payment called "rent". The operative words of the instrument are expressed in the name of the sovereign to "Demise and Lease [the specified lands] unto the said [lessee] and [its] lawful assigns". This is the normal language of a lease. The provisions under the 1962 Act were almost identical. They tend to reinforce the suggestion that the interest being granted was intended to be an ordinary leasehold interest, although for a specific objective, namely "for pastoral purposes only". To the language of the instrument must be added the language of the Act itself. Thus s 6 of the 1910 Act provides for the Governor in Council, in the name of the sovereign to "grant in fee-simple, or demise for a term of years, any Crown land within Queensland". Section 6(2) should be noted. It provides:

"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."

(c)

Far from being an indication that the interest granted by a pastoral lease under the Land Actswas of a different character from a lease at common law, the several exceptions envisaged by the Land Actswere called in aid to reinforce the argument that the Land Actswere thereby contemplating that, with the "lease", came the ordinary common law entitlement to exclusive possession from which derogations had to be specifically authorised ^[F685] .

In these different ways, the arguments of extinguishment were advanced. At the highest level of abstraction, by the assertion of plenum dominium converting the Crown's radical title to a reversion expectant incompatible with the survival of native title. At a lower level of abstraction, by the language of the Land Actsand the relevant pastoral leases, affording legal rights of exclusive possession to the entirety of the land referred to in the leases. At the lowest level of abstraction, by reference to the detailed provisions of the Land Acts,it was argued that the rights conferred by the pastoral leases were incompatible with the continuance of native title. Such title was therefore extinguished ^[F686] .

Significance of non-entry

It will be remembered that unlike the Holroyd River Holding, the successive lessees of the Mitchellton Holding never went into possession. This fact, which was undisputed, led to a submission for the Thayorre which is particular to their case and does not affect the case for the Wik. For the Thayorre, it was put that, until a lessee goes into possession, it does not have an estate in possession but a mereinteresse termini. Therefore, it was submitted, the estates of the Mitchellton Holding lessees vested in interest but never in possession. As a consequence, assuming (contrary to the Thayorre's primary submission) the principles of tenure were attracted to the pastoral leases executed in respect of the Mitchellton Holding, the Crown never acquired a reversion expectant which was the postulate for the expansion of the Crown's radical title to the plenum dominium that was said to extinguish the residual native title in the land.

To support this argument, the Thayorre relied on what was advanced as a basic principle of the common law of leases, as expressed in Coke Upon Littleton ^[F687] :

"For before entry the lessee hath but interesse termini, an interest of a terme, and no possession, and therefore a release which enures by way of enlarging of an estate cannot worke without a possession, for before possession there is no reversion ..."

This rule was referred to, without disapproval in Mann, Crossman & Paulin Ltd v. The Registrar of the Land Registry ^[F688] . It has now been abolished by statute in Queensland, but such abolition did not occur until 1975 ^[F689] .

Attractive though it might be to find a rule of the common law of leases that would forestall the legal operation of the grant of the pastoral leases over the Mitchellton lands, considering that they were never taken up and no entry was ever made under them, I do not believe that this argument can prevail in the face of the operation of s 6(2) of the 1910 Act. It was under that Act that both of the Mitchellton leases were granted. By that sub-section (set out in its entirety above) the lease itself is, by force of Statute, declared:

"... valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated."

Any residual common law principle which required physical entry to give rise to the effectiveness of a lease and the reversion expectant, is swept aside in the case of a pastoral lease granted under the 1910 Act by the provisions of the legislation. Under the 1910 Act, execution of the lease, alone, is sufficient. Drummond J was right to so determine. The submission for the Thayorre, that s 6(2) of the 1910 Act was merely providing for matters of form, must be rejected.

Native title was not necessarily extinguished

This conclusion takes me, therefore, to the basic argument, advanced for the Wik and the Thayorre, to sustain the suggested survival of their native title notwithstanding the pastoral leases granted in this case. Their argument was simple and correct. Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute. Neither of the Acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for "grazing purposes only", as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.

The foregoing conclusions are supported by the following considerations:

1. Australia's peculiar colonial needs and environmental opportunities called forth legislation on land use which was increasingly particular and special to this country. The prerogative power of the sovereign to dispose of waste lands of the Crown in New South Wales (then including the present Queensland) was removed by the Sale of Waste Lands Act 1842 (Imp) ^[F690] . Thereafter, the grants of interest in land were made under legislation, eventually enacted exclusively by local legislators. The Queensland legislation on pastoral leases, commencing with the Pastoral Leases Act 1869 (Q) was, as I have noted, multifarious, detailed and peculiarly local. Whereas in England, most of the instruments by which land was first granted had been lost (resulting in a reliance on fictions, the general rules of the common law and evidence of practice), in Australia, and specifically in Queensland, it is virtually always possible to trace the grant to an instrument and to the legislation by which the instrument was authorised ^[F691] . Dr Fry commented:

"The Crown tenures of mediaeval England were as difficult to classify, and the incidents of such tenures were as multitudinous and multifarious, as are the Crown tenures and tenurial incidents of modern Australian land law, especially in Queensland and New South Wales. Tenurial incidents in mediaeval England were, however, peculiarly appropriate to the feudal period, and those in modern Australia are of a different nature." ^[F692]

It is a mistake to import into the peculiar Australian statutory creation, the pastoral lease, all of the features of leases in English leasehold tenures dating back to medieval times. Unless such importation is necessary, either for reasons of the language or imputed purpose of the statute, it is much more appropriate to give content to the statutory pastoral lease by reference to the statute, unencumbered. Doing so represents a more orthodox approach to the construction of an Australian statute, made for peculiar, and in some ways unique, local land conditions. Tenure is already, to some extent, a fiction in England. It is a fiction increasingly questioned ^[F693] . Why, in such circumstances, it should be imputed to the Queensland Parliament in 1910 and 1962 that it had imported all of the incidents of the English common law of leases is not immediately plain. Pastoral leases covered huge areas as extensive as many a county in England and bigger than some nations. In these circumstances, it seems distinctly unlikely that there can be attributed to the Queensland Parliament an implied purpose of granting a legal right of exclusive possession to the pastoralist (including as against Aboriginals known to exist on the land and unmolested in their continuing use of it) where that Parliament held back from expressly so providing.

2. The Land Actsregulate the grant of leases. They do not expressly confer on the Crown the estate necessary to grant a lease. The historical reason for this is clear enough. At the time of the enactments, it was assumed that the Crown exclusively enjoyed the power to grant leasehold and other interests simply as an attribute of its sovereignty. Only now, following Mabo [No 2],has it become clear that, contrary to the earlier understanding, with sovereignty came no more than a radical or paramount title and this was burdened with native title which the common law would, in some circumstances, uphold. To invent the notion, not sustained by the actual language of the Land Acts, that the power conferred on the Crown to grant a pastoral leasehold interest was an indirect way of conferring on the Crown "ownership" of the land by means of the reversion expectant involves a highly artificial importation of feudal notions into Australian legislation. It would require much plainer statutory provisions to convince me that this was what the Queensland Parliament did in 1910 and 1962 when the Land Actswere enacted. That legislation is silent on the point precisely because the notion that the legislators (and drafters) were obliged to confer such a power on the Crown would have been furthermost from their minds. What is therefore suggested, upon analysis, is that, by a new legal fiction, such a purpose should be invented, retrospectively attributed to the Queensland Parliament and read into the Land Actsin order to afford the estate out of which the Crown might grant a pastoral lease. But if the Crown's power to make such a grant, properly analysed, exists simply because Parliament has said that it does, that is sufficient. Importing into the Land Actsnotions of the common law apt for tenurial holdings under the Crown in medieval England, and attributing them to the Crown itself, piles fiction upon fiction. As it is not expressed in the legislation, I would not introduced it.

3. As to the argument that the very word "lease" and the other words familiar to leasehold interests ("demise", "rent", "assigns") are used in the Land Acts, I am quite unconvinced that they are sufficient to import all of the features of a common law lease. The case books are full of warnings against such a process of reasoning, both generally ^[F694] and particularly in the context of the use of words such as "lease" and "licence" ^[F695] . In R v. Toohey; Ex parte Meneling Station Pty Ltd ^[F696] , this Court was obliged to consider a statutory "grazing licence" as either proprietary or non-proprietary in nature. Mason J observed that the licence ^[F697] :

"has to be characterised 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".

The same point has been made many times by this Court and by other courts of high authority. Long ago, in O'Keefe v. Malone ^[F698] , the Privy Council, in a case involving a statutory licence, emphasised that the correct approach for a court to take was to examine the rights actually conferred on the grantee by the instrument rather than implying from the mere use of the word "licence" or "lease" all of the incidents common to those expressions in a private contract. This is not to say that some features of an ordinary "lease" may not be imported into the terms where used in a statute. For example, the lessee would be entitled (exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment. The lessee would be entitled to seek relief in equity in certain circumstances as under a private lease ^[F699] . The lessee would have the statutory right to invoke the assistance of the Crown to expel trespassers who had no right or title to be upon the land ^[F700] . However, these conclusions fall a long way short of requiring that the title conferred by a pastoral lease upon the lessee to use the land "for pastoral purposes only" be extended to exclude Aboriginals using the land in the traditional way. This is particularly so where they are on the land, as Mabo [No 2]now makes clear, in pursuit of a native title which the common law will recognise and enforce so far as it is not inconsistent with the pastoralist's right to use the land "for pastoral purposes only". The context in which the legislation on pastoral leases was enacted in Queensland also makes it highly unlikely that this was the intention of Parliament. As the historical materials demonstrate, it was known that there were substantial numbers of Aboriginals using the land, comprised in the pastoral leases, according to their traditional ways.

It was not government policy to drive them into the sea or to confine them strictly to reserves. In these circumstances, it is not at all difficult to infer that when the Queensland Parliament enacted legislation for pastoral leases, it had no intention thereby to authorise a lessee to expel such Aboriginals from the land. Had there been such a purpose, it is not unreasonable to suggest that the power of expulsion would have been specifically provided. In such huge, remote and generally unvisited areas as ordinarily comprise pastoral leases, it may be assumed that Parliament, had it been questioned about the position of Aboriginals, would have responded as the Northern Protector of Aboriginals did at the turn of the century.

4. There are several provisions in the Land Actswhich reinforce the foregoing conclusions. The Land Act 1897 (Q) contained, in s 235, a provision for the removal of trespassers. This provision became common in the Queensland legislation. By regulations made under that Act, the form of warrant for the removal of trespassers read:

"[t]hat our Sovereign Lady the Queen is entitled to possession of the said land; These are therefore to command you forthwith to enter into and upon the said land, and to dispossess and remove the said [trespassers] ... and to take possession of the same on behalf of our said lady the Queen."

The equivalent provision in the 1910 Act was s 204. In the 1962 Act it was s 373(1). These sections uniformly provide for the removal of trespassers by the taking of possession "on behalf of the Crown". This is one of a number of indications in the Land Actsthat, by their terms, exclusive possession did not repose in the lessee. A residue of actual possessory right was retained to the Crown, not a mere reversion expectant. Both the 1910 and 1962 Acts contained provisions that pastoral leases should be subject to reservations and conditions authorised or prescribed by the Acts ^[F701] . Although such exceptions to the right of peaceful enjoyment of the entire land referred to in the lease do not throw much light on the legal character of the interest thereby created, by their number and variety, they do emphasise the point that the interest in the land which was granted by a pastoral lease was a peculiar statutory interest. It is an interest peculiar to, and apt for, the conditions of the countryside described. It was not one conferring on the lessee a general right of exclusive possession simply because what was granted was called a "lease".

5. Constructing Authority impossible" ^[F717] . If such a question is posed in relation to native title rights and the rights conferred on lessees of pastoral leases under the successive Land Acts of Queensland, the answer must be in the negative. The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilize the land in accordance with their native title, as they did. In that sense, the nature of the interests conferred by a pastoral lease granted under the successive Land Acts, was not, of its legal character, inconsistent with native title rights. Whether, in particular cases, and in particular places, native title rights, in their operation, were inconsistent with the rights enjoyable under the pastoral lease is a matter for evidence. Because the interests under native title will not be uniform, the ascertainment of such interests, by evidence, is necessary in order to judge whether such inconsistency exists as will extinguish the particular native title proved. If inconsistency is demonstrated in the particular case, the rights under the pastoral lease will prevail over native title[718]. If not, the native title recognised by our law will survive.

6. There are further reasons of legal principle which reinforce this approach to the Land Acts under which the pastoral leases here were granted. There is a strong presumption that a statute is not intended to extinguish native title ^[F705] . The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication ^[F706] . General provisions of an Act are not construed as extinguishing native title if they are susceptible to some other construction ^[F707] . Whether by necessary implication a statute extinguishes native title depends upon the language, character and purpose which the statute was designed to achieve. This is species of a general proposition applied by courts in the construction of legislation. It is applied out of deference to the presumption that Parliament would not normally take away the rights of individuals or groups, without clearly stating such a purpose ^[F708] . It may be said that the Land Acts under which the present pastoral leases were granted, were made by the Queensland Parliament before the survival of native title was made clear by this Court in Mabo [No 2]. That is true. It is equally true that a court, in giving meaning to the language of an Act, will ordinarily take into account the circumstances and conditions contemporaneous to its enactment ^[F709] . However, the principle protective of the rights of Aboriginal people is not new to the common law. It existed in Australia in colonial times. Often it was explained in terms of the duty which the Crown owed, in honour, to native people who were under the Crown's protection ^[F710] . Although the legislators in 1910 and 1962 did not know of the existence of native title, it should be presumed that, had they known, Parliament would have acted to protect such rights against uncompensated expropriation ^[F711] . Especially would it have done so in circumstances where the expropriation asserted was alleged to have occurred by a legal fiction, viz the grant of a leasehold interest but one whose peculiarities would leave traditional Aboriginal life totally, or largely, undisturbed. In Canada, the principle has been approved that courts should attribute to Parliament the objective of achieving desired results with as little disruption as possible of the rights and interests of indigenous peoples and affecting their rights and status no more than is necessary ^[F712] . Moreover, the principles of statutory construction to which I have referred are by no means new principles. There were many cases before and at the time of the enactment of the early pastoral leases legislation which adopted analogous principles ^[F713] . Existing proprietary rights might be affected by Parliament acting within, and in accordance with, its constitutional powers ^[F714] . However, to deprive a person of pre-existing proprietary interests, the legislation enacted by Parliament must clearly do so, either by express enactment ^[F715] or by necessary implication ^[F716] . The problem of interference with proprietary rights over land (frequently rights of way) by or under railway construction legislation was a question commonly before the courts in the 19th and early 20th centuries. Where Parliament had not expressly abolished proprietary rights, the court typically asked itself whether "[t]he continued use of the land ... would render the exercise of the powers expressly conferred on the Constructing Authority impossible" ^[F717] . If such a question is posed in relation to native title rights and the rights conferred on lessees of pastoral leases under the successive Land Acts of Queensland, the answer must be in the negative. The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilize the land in accordance with their native title, as they did. In that sense, the nature of the interests conferred by a pastoral lease granted under the successive Land Acts, was not, of its legal character, inconsistent with native title rights. Whether, in particular cases, and in particular places, native title rights, in their operation, were inconsistent with the rights enjoyable under the pastoral lease is a matter for evidence. Because the interests under native title will not be uniform, the ascertainment of such interests, by evidence, is necessary in order to judge whether such inconsistency exists as will extinguish the particular native title proved. If inconsistency is demonstrated in the particular case, the rights under the pastoral lease will prevail over native title ^[F718] . If not, the native title recognised by our law will survive.

7. Is there any legal principle or legal policy which would cast doubt on the foregoing conclusion and require that such outcome be reconsidered? I think not. No new doctrine is adopted which alters the course set by the decision of this Court in Mabo [No 2]. There is no radical departure from the fundamental principles of Australian law, including Australian land law ^[F719] . It is true that some remarks in Mabo [No 2], not necessary to the actual decision in that case, have been reconsidered. The suggestion that it was necessary and inherent in the special Queensland legislation creating the uniquely Australian property interest of a pastoral lease to import the paraphernalia of English feudal leasehold notions has been rejected. It is not what the Queensland legislature said in its enactments. It is not necessary in order to make the legislation effective. It is unhistorical and artificial in the concept which it would import into the function of the Crown in Australia as the paramount grantor of interests in land. The fundamental rule in Mabo [No 2]is unaffected.

When, therefore, the legal interests granted by the pastoral leases here are analysed and considered with our present knowledge that native title survived annexation of the Australian lands to the Crown, the nature of such legal interests is such that they do not necessarily extinguish native title. This conclusion can more comfortably be reached with the assistance of the presumption that, without express words or necessary implication, Australian legislation will not be construed to take away proprietary rights, particularly without compensation. The holders of pastoral leases are left with precisely the legal rights which they enjoyed pursuant to the leases granted under the Land Acts"for pastoral purposes only". Those rights will prevail, to the extent of any inconsistency with native title. This judgment is concerned only with the legal interests of the lessees under the Queensland legislation examined in this case. It is the peculiarity of the legal rights conferred by such statutory leases, in the factual setting in which they were intended to operate, which permits the possibility of coexistence of the rights under the pastoral lease and native title. Such would not be the case where an estate or interest in fee simple had been granted by the Crown. Such an interest, being the local equivalent of full ownership, necessarily expels any residual native title in respect of such land. The position of the countless other leasehold interests in Queensland, described by Dr Fry ^[F720] and of the pastoral and other leasehold interests elsewhere in Australia must remain to be elucidated in later cases. It is true that this result introduces an element of uncertainty into land title in Australia, other than fee-simple. However, this is no more than the result of the working out of the rules adopted in Mabo [No 2].

There were many reasons of legal authority, principle and policy for adhering to the understanding of the law which existed prior to Mabo [No 2] ^[F721] . But no party before this Court sought to reargue the correctness of that decision. So it falls to the Court to determine one of its logical consequences. I forbear, of my own motion, to reagitate the wisdom of the step taken by the Court in Mabo [No 2]. Once that step was taken, ordinary common law principles for the protection of a proprietary right, found to have survived British settlement, extended to the protection of the indigenous peoples of Australia, in exactly the same way as the law would protect other Australians. Because pastoral leases in Queensland are not necessarily, in law, incompatible with the survival of native title rights, the latter survived unless shown, by particular evidence, on the particular facts, to be inconsistent and thus extinguished.

A large number of other submissions were received by the Court on the pastoral leases question. Determination of them, in these already extended reasons, is not necessary. What has been stated is sufficient to bring me to my conclusions and to the orders which I would propose on this point.

The appeal on this question must be upheld. The answers given by Drummond J in the Federal Court to the questions separated for determination must be amended accordingly. For the reasons explained above, no declaration or other relief in this Court is sought or is appropriate. With the answers to the questions given by the Court in those matters still in issue, the proceedings should be returned to the Federal Court for trial. At such trial, evidence will be required to give content to the survival and requirements of the native title alleged by the Wik and the Thayorre which, for the purpose of these proceedings, it has been assumed that they can prove.

STATUTORY AGREEMENTS

Agreement with Comalco authorised by statute

Questions 4 and 5 concern only certain claims by the Wik propounded in their further amended statement of claim. So far as question 4 is concerned, the claims are maintained against the State of Queensland ("Queensland') and the Commonwealth Aluminium Corporation Pty Limited ("Comalco"). There was no dispute as to the facts, so far as the preliminary determination of the question of law was concerned. For that purpose, Queensland and Comalco assumed that the Wik would make out the various defaults alleged (including breach of the requirements of procedural fairness and breach of fiduciary duty) whilst strenuously denying that such defaults had occurred.

In 1957, the Government of Queensland procured the passage through the Parliament of Queensland of the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q) ("the Comalco Act"). The Act was given the Royal Assent on 12 December 1957. As originally enacted, its relevant provisions were:

"2. The Premier and Chief Secretary is hereby authorised to make, for and on behalf of the State of Queensland, with Commonwealth Aluminium Corporation Pty Limited ... the Agreement a copy of which is set out in the Schedule to this Act ...

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

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

4. The Agreement may be varied pursuant to agreement between the Minister for the time being administering this Act and the Company with the approval of the Governor in Council by Order in Council and no provision of the Agreement shall be varied nor the powers and rights of the Company under the Agreement be derogated from except in such manner.

Any purported alteration of the Agreement not made and approved in such manner shall be void and of no legal effect whatsoever.

Unless and until the Legislative Assembly, pursuant to subsection four of section five of this Act, disallows by resolution an Order in Council approving a variation of the Agreement made in such manner, the provisions of the Agreement making such variation shall have the force of law as though such lastmentioned Agreement were an enactment of this Act.

5(1.) Any Proclamation or Order in Council provided for in this Act or in the Agreement may be made by the Governor in Council ...

(2.) ...

(3.) Every such Proclamation or Order in Council shall be published in the Gazette and such publication shall be conclusive evidence of the matters contained therein and shall be judicially noticed.

(4.) Every such Proclamation or Order in Council shall be laid before the Legislative Assembly within fourteen days after such publication if Parliament is sitting for the despatch of business; or, if not, then within fourteen days after Parliament next commences to so sit.

If the Legislative Assembly passes a resolution disallowing any such Proclamation or Order in Council, ... such Proclamation or Order in Council shall thereupon cease to have effect, but without prejudice to the validity of anything done in the meantime."

The agreement authorised by the Comalco Act ("the Comalco Agreement") was executed by the Premier and Chief Secretary of Queensland in apparent compliance with s 2 of the Act and purportedly "for and on behalf of the State [of Queensland]", and also by Comalco, on 16 December 1957. On 22 March 1958, the Proclamation notifying the date of the making of the Comalco Agreement was published in the Queensland Government Gazette. The conditions in the Comalco Agreement being satisfied, Comalco became entitled, pursuant to cl 8, to the grant of a "Special Bauxite Mining Lease for the western bauxite field for an initial term of eighty-four (84) years commencing on the first day of January, 1958". Pursuant to cl 11(c) of the Comalco Agreement, Comalco also became entitled to occupy the area to be leased and to exercise all the rights and powers intended to be granted under the lease, pending the issue of the instrument of lease. The Special Bauxite Mining Lease (identified as ML 7024) was issued on 3 June 1965. It was in the form set out in the Third Schedule to the Comalco Agreement, in conformity with cl 11(a) of that Agreement. The lease was thereafter varied on a number of occasions in the manner provided for by s 4 of the Comalco Act.

The primary submission of the Wik in their Statement of Claim was that the enactment of the Comalco Act, the making of the Comalco Agreement and the granting of the lease did not extinguish native title in the areas the subject of Comalco's entitlements under the foregoing provisions. However, against the possibility that this primary submission might fail and that the Comalco Act, the Comalco Agreement and the lease referred to, singly or in combination, might be so inconsistent with the Wik's native title rights as to extinguish them, the Wik sought to advance the claims against Queensland and Comalco which are the subject of question 4. Those claims were:

(a)

That the Comalco Agreement and the lease were invalid and of no effect, being made in breach of the requirements of procedural fairness to which the Wik were entitled (basically notification that their interests might be adversely affected by the decision to enter into the Comalco Agreement or otherwise over-ridden to the advantage of the private rights and interests of third parties) ^[F722] .

(b)

That the Comalco Agreement and the lease were invalid and of no effect on the ground that they were negotiated and executed in breach of trust or fiduciary duty on the part of Queensland, in which breach Comalco knowingly participated ^[F723] .

(c)

That Comalco was obliged to account to the Wik for profits made by Comalco in consequence of the breach of fiduciary duty by Queensland and that there should be a declaration that Comalco held the lease as constructive trustee for the Wik ^[F724] .

(d)

That Comalco had been unjustly enriched by the benefits which it received from the making of the Comalco Agreement, the grant of the lease and the operations conducted pursuant thereto, and was thereby obliged to account to the Wik for such benefits ^[F725] .

(e)

That Comalco should be enjoined from continuing its operations pursuant to the Comalco Agreement and lease because it had no lawful right to conduct the operations once the Comalco Agreement and the lease were found invalid ^[F726] .

The Wik did not contend that the Comalco Act was invalid. Queensland and Comalco successfully argued in the Federal Court that the Comalco Act, the Comalco Agreement it authorised and the lease which it envisaged together, expressly or by necessary implication, denied the Wik any remedy for the wrongs alleged, assuming they could prove them. The Wik denied that this was the effect of the Comalco Act or of the Comalco Agreement and lease made under it.

Decision of the Federal Court

In approaching the operation of the Comalco Act,Drummond J had the benefit of the decision upon that issue of the Full Court of the Supreme Court of Queensland in Commonwealth Aluminium Corporation Ltd v. Attorney-General ^[F727] . In issue in that litigation was whether an amendment to the rate of royalties payable under the Comalco Agreement, effected not by means of the variation provisions in s 4 of the Comalco Act but by a subsequent Act ^[F728] , was inapplicable to vary the Comalco Act. The Court held that, notwithstanding the Comalco Act,the Queensland Parliament retained full legislative power to amend the Comalco Act and, by later legislation, to affect the Comalco Agreement executed under that Act. In response to the complaint that the formula in s 4 of the Comalco Act had the effect of elevating executive action to the status of legislation, and so abrogating the legislative authority of the Parliament of Queensland, Wanstall SPJ pointed out that the Queensland Parliament retained its entire legislative powers ^[F729] . His Honour rejected the attack on the validity of the Comalco Act and relied upon the reasoning of the Privy Council in Cobb & Co Ltd v. Kropp ^[F730] .

In this Court the Wik shifted their attack. Many of the arguments which were rejected in the Federal Court were abandoned. The three arguments which were advanced were:

(a)

That the Federal Court had erred in reading the Comalco Act so widely as to excuse Queensland and Comalco from any enforceable liability which they respectively owed to the Wik.

(b)

That so far as the Comalco Agreement was concerned, the most that the Act did was to "authorise" the Premier to execute the Comalco Agreement. This should be read as falling short of imposing upon the Premier the obligation to execute the Comalco Agreement. It permitted him to do so if he so decided, after satisfying himself that all relevant matters and interests had been taken into account (including the entitlements of the Wik). It thereby implicitly preserved the obligation to adhere to procedural fairness and to respect the Wik's fiduciary rights.

(c)

That the lease was separate from the Comalco Agreement and did not form part of it. Hence the lease did not have the force of statute even though the Comalco Agreement was given such status by the Comalco Act.

In the Federal Court, Drummond J rejected each of these submissions. In my opinion his Honour was right to do so.

Attack on the Agreement: Implications of the Comalco Act

The Wik urged that the proper construction of the Comalco Act was that it was limited to its basic purpose of removing the need, under the Mining Actsof Queensland, to follow for the granting of mining leases, what the Privy Council described as a "chain of necessary steps to be taken, of satisfaction to be achieved, of decisions to be made, of discretions to be exercised" ^[F731] . In this regard, reference was made to the reasoning of the Full Court in the earlier litigation concerning the Comalco Act ^[F732] . There seems little doubt that had the Comalco Act merely authorised the execution of the Comalco Agreement, without the additional element provided by s 3 which gave that agreement statutory force, it would not have sanctioned the provisions in the Comalco Agreement which otherwise conflicted with the Mining Act ^[F733] . There is no doubt that this was one of the purposes of the Comalco Act. The Wik argued that the Act should be given a construction which avoided attributing to Parliament any intention to validate what would otherwise be a wrong done to a third party. They submitted that it would require clear language to authorise not merely the bringing into force of the Comalco Agreement but also doing so in breach of the duty of procedural fairness and of fiduciary duty, as posited. Compliance with those duties was assumed by Parliament. Breach was not prospectively authorised or subsequently ratified or validated by the statutory and contractual arrangements which followed. The Wik acknowledged that a passage in the judgment of the Privy Council in The Corporation of the Director of Aboriginal and Islanders Advancement v. Peinkinna ^[F734] was authority against their proposition. They urged that this Court should not follow the opinion there expressed.

There are a number of answers to these arguments. Essentially, the function of the Court is to give effect to the purpose of the Queensland Parliament in adopting the exceptional course found in the Comalco Act. In Hoani Te Heuheu Tukino v. Aotea District Maori Land Board ^[F735] , the Privy Council referred to its earlier decision in Labrador Company v. The Queen ^[F736] and said:

"It is not open to the court to go behind what has been enacted by the legislature, and to inquire how the enactment came to be made, whether it arose out of incorrect information or, indeed, on actual deception by someone on whom reliance was placed by it."

Those remarks were repeated in the House of Lords in British Railways Board v. Pickin ^[F737] , where it was further decided that a litigant could not establish a claim in equity that the other party, by fraudulently misleading the legislature in successfully promoting a Bill, had inflicted damage on the plaintiff. The Wik's argument concerning the invalidity of the Comalco Agreement, at least on the basis of their attacks on that Agreement, conflicts with one of the obvious purposes of adopting the procedure evidenced in the Comalco Act. That procedure was designed to confer a statutory status on the Comalco Agreement. To permit a party to attack the validity of the Comalco Agreement on the basis of alleged default or impropriety in the steps leading to its execution would undermine and frustrate the clear purpose of the legislation. Similarly, once the Comalco Agreement was executed, the rights conferred by it were of the same status as if they had been conferred by legislation. The fact that other persons (such as the Wik) may thereby have lost rights previously belonging to them is simply the result of the operation of legislation, the constitutional validity of which is not impugned. Subject to what follows, the Comalco Act had the purpose and effect of giving legislative force to the Comalco Agreement. To permit the Wik now to question the validity of the Comalco Agreement is contrary to the plainly intended effect of the Comalco Act. Inherent in this conclusion is the further one that damages and other relief cannot be obtained for alleged breaches of duty resulting in, or constituted by, the making of the Comalco Act or in respect of the benefits flowing from the Comalco Agreement. This is so because, once executed as Parliament provided, the Comalco Agreement itself took on the force of legislation ^[F738] . This was not the usurpation of legislative power. It was the exercise of it. The suggested injustice of the Comalco Agreement and of its consequences for the Wik is not then a matter for legal ^[F739] but only for political redress.

It is not necessary in this case to consider what might be the consequences where a procedural requirement of Parliament, or of the particular Act, is not complied with ^[F740] . The Wik raised the case where the authorised signatory to a statutory contract was substituted by an imposter. There is no suggestion of any such default in the Parliamentary procedures or the legislative requirements applicable in this instance. I do not regard the suggested analogy as a valid one. Parliament is to be taken to expect that its own procedures and its essential legislative conditions would be fulfilled. But the major purpose of the legislative endorsement of the Comalco Agreement,adopted in the Comalco Act,was to avoid claims of invalidity of the Agreement of the kind which the Wik, by the applicable paragraphs of their statement of claim, wish to ventilate.

Statutory authorisation and its effect

In a fall-back argument, the Wik asserted that, upon its true construction, the provision in s 2 of the Comalco Act which "authorised" the Premier to make the Comalco Agreement did not require him to do so. It merely permitted that course. The actual power to make the Comalco Agreement had to be found elsewhere either under different legislation or under the residue of the Royal prerogative. In either such case, so it was argued, to move from the authorisation to the execution of the Comalco Agreement, the Premier would be obliged by law to do so in conformity with the general law requiring compliance with duties of procedural fairness owed to persons affected and fiduciary duties applicable to the case.

As was pointed out by Jordan CJ in Ex parte Johnson; Re MacMillan ^[F741] , the word "`authorise', according to its natural meaning, [ordinarily] signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess". But Jordan CJ pointed out that the word, like any other word, takes its meaning from the context in which it appears. In that particular case he found that "authorise" had to be read as including "requiring" ^[F742] .

There is not much point in offering, as the Wik did, numerous cases where "authorise" has been held to mean no more than to "sanction, approve, and countenance" ^[F743] or "permit" ^[F744] . Just as many cases could be found where the word included the notion that the "authorised" course was required ^[F745] .

In the present context, the employment of the term "authorised" was appropriate to the relationship between the Parliament of Queensland and the Executive Government of the State. The detail and specificity of the Comalco Act and the departure which it represents from the ordinary law governing the multitude of contracts made for and on behalf of the Crown in a State ^[F746] all suggest that this was an agreement which the Queensland Parliament expected to be made. Once made, pursuant to Parliament's authority, the Comalco Agreement, exceptionally, had the force of law as though itself part of the enactment.

In such a context, the suggestion that the Comalco Agreement needed a different and additional foundation (which would permit an attack on the suggested defaults) is not persuasive. For this special agreement, a particular regime of legislative authorisation was laid down. It was sufficient, without more, to support the making of the Comalco Agreement. In this case, no other source of power was required.

The lease was valid

The final challenge by the Wik to the rights of Comalco involved an attack on the validity of the lease, ML 7024. Comalco conceded in the Federal Court that it could not contend that the mining lease itself had statutory status ^[F747] .

The Wik argued that the lease, having no special statutory status, did not preclude the maintenance of the claims set out in the amended statement of claim. They should therefore be entitled to a trial of their assertion that the Executive Government, before obeying the legislative command to grant the lease scheduled to the Comalco Agreement, was required to accord procedural fairness and to avoid any breach of fiduciary duty to persons in the position of the Wik.

It is a serious step to terminate a party's claim in advance of a trial on the merits. As I have already said, where the law is uncertain, or in a state of development, it is usually preferable to allow the claim to go to trial ^[F748] . On the other hand, if a claim is clearly hopeless in law, it is an unjust vexation of the defendant to oblige it to defend the claim. Long ago in the Mersey Docks and Harbour Board Trustees v. Gibbs ^[F749] it was said:

"If the legislature directs or authorises the doing of a particular thing, the doing of it cannot be wrongful;"

As the Comalco Agreement, with the force of an Act of Parliament, obliged Queensland to grant to Comalco the lease ML 7024, the action of Queensland in granting that lease pursuant to the express statutory authority cannot, in my view, give rise to actions of the kind which the Wik wish to bring. This conclusion is what the correct construction of the Comalco Act requires. Cases involving other Acts and other factual circumstances ^[F750] are not in point. The question here is the purpose and operation of a special public statute of the Queensland Parliament adopting the particular device of a statutory agreement, an essential purpose of which was to grant just such a lease as ML 7024. Within the scheme established by the Comalco Act, obligations of the kind which the Wik now wish to litigate were excluded. This conclusion relieves me of the need to consider the additional defensive arguments advanced by Queensland and Comalco.

Pechiney and the "Access Agreement"

Question 5 concerns similar questions which arise in respect of a number of paragraphs of the Wik's amended statement of claim. By those paragraphs the Wik seek to maintain against Queensland and Aluminium Pechiney Holdings Pty Limited ("Pechiney"), actions similar to those identified in the case of Comalco. In this case, the statute in question is the Aurukun Associates Agreement Act 1975 (Q) ("the Aurukun Act"). It gave like authorisation for the making of the Aurukun Associates Agreement ("the Franchise Agreement") ^[F751] . In a like way, that agreement gave rise to the proclamation of the making of the Franchise Agreement pursuant to the Aurukun Act with the grant of Special Bauxite Mining Lease, number 9.

The Aurukun Act was given the Royal Assent on 12 December 1975. As in the case of the Comalco Act,its validity was not in contest in this Court. By Proclamation dated 27 December 1975, the Governor of Queensland in Council notified that the date of the execution of the Franchise Agreement was 22 December 1975. That was the agreement, the making of which was authorised by s 2 of the Aurukun Act. The Third Schedule to the Franchise Agreement was the "Access Agreement". This was an agreement between the Director of Aboriginal and Islanders Advancement of Queensland ("the Director") and, amongst other parties, Pechiney. The Aurukun Act was in all material terms similar to the Comalco Act. Accordingly, for the reasons already given, the Franchise Agreement is to be treated as if it were an enactment of the Queensland Parliament. No objection may be taken to the validity of the Franchise Agreement. Such validity may not be impugned on the grounds of breach of fiduciary duty or breach of the rules of procedural fairness because to do so would be to contradict the clear purpose of the Queensland Parliament in adopting the exceptional course of authorising the making of the Franchise Agreement and, once made, affording it the force of statute.

It is clear both from the Aurukun Act itself and from the Parliamentary Debates on the Bill which became the Act, that it was "the culmination of detailed negotiations between the Queensland Government and the Aurukun Associates" ^[F752] . The "Access Agreement" was part of the background to those negotiations. It was, in fact, the very agreement which was considered in the Peinkinna Case ^[F753] . It bears the date 4 December 1975. It thus preceded both the Aurukun Act and the Franchise Agreement which that Act authorised. It is not expressly referred to in the body of the Aurukun Act. However, as contemplated in the form of the Franchise Agreement as set out in the Act, it was scheduled to that agreement when it was made.

The submission of the Wik in relation to the Access Agreement was similar to the submission made with respect to the lease granted to Comalco: it did not itself have the force of statute. Its execution was an administrative act liable to be tested by reference to the obligations of procedural fairness and fiduciary duty.

For reasons similar to those given in dealing with the Comalco lease, I am of the opinion that the scheme of the Aurukun Act excludes prosecution of the Wik's claims against Queensland and Pechiney in respect of the Access Agreement. The Franchise Agreement has statutory force. One of its provisions ^[F754] imposes on the Aurukun companies an obligation to "carry out their responsibilities and obligations as defined in the [Access Agreement]". The obligations under the Access Agreement are therefore as effective as if they were expressly stated in, and part of, the Aurukun Act. The clear intention of the Queensland Parliament was that the Access Agreement should take effect as part of the scheme which was to include the Franchise Agreement made with the force of statute. This interpretation, which I would reach independently, is confirmed by the explanations given to the Queensland Parliament in support of the complex arrangements between the parties and for which the approval of Parliament was sought ^[F755] . Placed as it was as an integral part of the arrangements carried into law in the Franchise Agreement, it must be taken that, for the successful operation of the Franchise Agreement sanctioned by Parliament, the latter supplied any deficiency in the authority or power of the Director to enter into the Access Agreement. It would be destructive of the obvious purposes of the Aurukun Act now to open to complaint the claims advanced by the Wik in objection to the Access Agreement.

I therefore consider that Drummond J was right to answer question 5, like question 4, in the negative.

ORDERS

For the foregoing reasons I agree in the answers to the questions proposed, and in the orders stated, in the reasons of Toohey J.

ORDER

1. Each appeal allowed in part.

2. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d) and Question 1C(b), (c) and (d). Affirm the answers given by Drummond J to Question 1C(a), Question 4 and Question 5.

3. Answer Questions 1B, 1C, 4 and 5 as follows:

Question 1B

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

(a)

[not pressed]

(b)

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

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

(c)

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

(d)

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

Answer

(b)

No.

(c)

Does not arise.

(d)

Strictly does not arise but is properly answered No.

Question 1C

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

(a)

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

(b)

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

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

(c)

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

(d)

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

Answer

(a)

No.

(b)

No.

(c)

Does not arise.

(d)

Strictly does not arise but is properly answered No.

Question 4

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

Answer

No.

Question 5

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

Answer

No.

4. The respondents who opposed the orders sought in relation to Question 1B(b), (c) and (d) pay the costs of the proceedings in this Court of the Wik Peoples relating to that question.

5. The respondents who opposed the orders sought in relation to Question 1C(b), (c) and (d) pay the costs of the proceedings in this Court of the Thayorre People and the Wik Peoples relating to that question. The Thayorre People pay the costs of the proceedings in this Court of the respondents relating to Question 1C(a).

6. The Wik Peoples pay the respondents' costs of the proceedings in this Court relating to Questions 4 and 5.

7. Remit the matters to the Federal Court with respect to the costs of the proceedings before Drummond J or otherwise in that Court.