Anderson v Wilson - [2000] FCA 394 - FCA 2000 case summary — Zoe

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Anderson v Wilson

[2000] FCA 394

Federal Court of Australia|2000-04-05|Before: Black CJ, Sackville JJ

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Court

Federal Court of Australia

Decision date

2000-04-05

Before

Black CJ, Sackville JJ

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

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INTRODUCTION.................................................................................................................... 1 QUESTIONS............................................................................................................................. 2 AGREED FACTS..................................................................................................................... 2 ENACTMENT OF THE WESTERN LANDS ACT 1901 (NSW)......................................... 4 LEASE....................................................................................................................................... 4 BACKGROUND TO THE INTRODUCTION OF THE WESTERN LANDS BILL........ 10 SECOND READING SPEECH 1901.................................................................................... 12 INTRODUCTION OF LEASES IN PERPETUITY - THE 1932 AMENDMENTS.......... 12 1934 AMENDMENTS - THE INTRODUCTION OF s 23................................................ 13 SCHEME OF THE WLA AND REGULATIONS................................................................ 14 (a) The WLA as in force on 31 August 1953................................................................... 14 (b) The relevant provisions of the Regulations............................................................... 22 CHARACTERISTICS OF A STATUTORY LEASE IN PERPETUITY............................. 23 REASONING AND DECISION IN WIK............................................................................. 28 Some background to the leases.......................................................................................... 29 The reasoning of Toohey J................................................................................................. 31 Toohey J's postscript......................................................................................................... 35 The reasoning of Gaudron J................................................................................................ 36 The reasoning of Gummow J.............................................................................................. 38 The reasoning of Kirby J.................................................................................................... 40 IDENTIFICATION OF THE RATIO OF THE MAJORITY JUDGMENTS IN WIK..... 43 IDENTIFICATION OF MATTERS NOT PART OF THE MAJORITY RATIO IN WIK44 (a) The use of early colonial history................................................................................ 44 (b) The significance of the vast size and remote location of the lands leased in Wik... 46 CONCLUSIONS ON THE SEPARATE QUESTIONS....................................................... 47 (a) Possession issues - the lessee's rights...................................................................... 47 (b) Extinguishment issues - native title holders rights................................................... 50 COSTS..................................................................................................................................... 51 POSTSCRIPT......................................................................................................................... 51 APPENDIX............................................................................................................................. 52

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AGREED FACTS 153 The agreed facts are:

Mr Wilson is the lessee of Western Lands Lease 7951 ("the Lease"). 2. The Lease was validly executed under the Western Lands Act 1901 (NSW) ("the WLA") on 11 January 1955, effective from 31 August 1953. 3. A copy of the Lease was annexed to the statement of agreed facts. (Its provisions are described below. The Lease was granted in perpetuity, subject to the provisions of the WLA and Regulations.) 4. Mr Anderson, for and on behalf of the Euahlay-I Dixon Clan, is a claimant under the NTA ("the Claim").
The land the subject of the Lease ("the Leased Land") is subject to the Claim. 154 Although the agreed facts did not include details of the Leased Land itself, the Status Search Report provided to the Court by the Department of Land and Water Conservation provided the Court with information that was not in dispute, as follows. 155 The Leased Land is located in what is known as the Western Division of New South Wales and is approximately thirty kilometres south of the Queensland border. The nearest population centres are Lightning Ridge (pop 1,814 in 1996) and Collarenebri (pop 544). The area granted under the Lease was 10,820 acres (approximately 4,378 hectares or forty four square kilometres). Although nothing turns on it for present purposes, a subsequent survey recorded on the Lease shows that the Leased Land was found to contain 11,118 acres. This was further reduced to 11,099 acres in 1965 by the withdrawal under the Public Roads Act 1902 (NSW) of nineteen acres for the purposes of a road. 156 As indicated in the Lease itself, the Leased Land was set apart for disposal exclusively for members and discharged members of the armed forces pursuant to s 3 of the War Service Land Settlement Act 1941 (NSW). This occurred by a notification in the Gazette on 16 January 1953. The notification described the "class of country" as follows: "Class of country - Fairly open to open black and grey soil country, with a red sandy ridge in Reserve Paddock, running into patches of heavy black soil in the southern section of the block with a small area of red soil near Myall Tank. The northern parts of both Bottom and Top Myall Paddocks are subject to inundation in high floods. Timbered with box, belah and coolabah, lightly ringbarked, with fair to good edible scrubs in wilga, whitewood, berrigan, nardoo, scattered orange and currentbush. Very well grassed with coolah, blue, mitchell, flinders, neverfail, sugar and umbrella grasses. … Average annual rainfall - About 16 inches. … Improvements - Fencing, tank and ringbarking. (Privately owned.)" 157 Notification of the grant of the Lease under the WLA,in respect of an area of Crown land set aside for disposal under the War Service Land Settlement Act,was made in the Gazette on 31 July 1953. 158 Reference should be made to the WLA as a central element in the questions for decision.

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"Whereas certain Crown Lands in the Western Division …were duly set apart in accordance with the provisions of the War Service Land Settlement Act, 1941, for disposal by way of lease exclusively to members of the forces and discharged members of the forces … for the purpose of grazing -----------------------------------------------------under the provisions of the [WLA] … (hereinafter called the said Acts) AND WHEREAS ROSS PATRICK SMITH of Melrose Street, CONDOBOLIN -----------------------------in Our said State --------------------- did on the SIXTEENTH day of MARCH 1953 make an application under the provisions of the said Acts for a Lease of the land hereinafter mentioned and all things required by law have been done to enable a Lease of such land to be duly granted AND WHEREAS Our Minister for Lands of Our said State has granted to the said ROSS PATRICK SMITH a lease of the land hereinunder mentioned in perpetuity at the rent and upon and subject to the exceptions reservations conditions and provisions hereinafter mentioned NOW KNOW YE that in pursuance of the provisions of the said Acts WE DO HEREBY grant unto the said ROSS PATRICK SMITH (who with his executors administrators and assigns is hereinafter referred to as the lessee) ALL THAT piece or parcel of land being portion numbered WL. 3878 containing ten thousand eight hundred and twenty (10, 820) -------------------------------------------------------------------------------------------------------acres more or less situated in the County of Finch (being Western Lands Lease No. 7951) as delineated in the plan catalogued W.L.C. 6351 … TOGETHER WITH ALL rights easements and appurtenances to the same belonging … TO HOLD the said land unto the Lessee as a Western Lands Lease from the thirty-first day of August 1953 in perpetuity subject to the provisions of the said Acts and the Regulations thereunder and to the Reservations Exceptions Conditions and Provisions herein contained YIELDING AND PAYING therefor the yearly rent of two hundred and twenty-five pounds eight shillings and four pence or such other rent as shall be or become payable by reason of the annual rent having been or being fixed or determined in due course of law (whether because of the capital value having been or being re-determined or otherwise) ….".) 165 The Lease is expressed to be subject to the following exceptions and reservations: "… EXCEPTING AND RESERVING unto US OUR HEIRS and SUCCESSORS all minerals as defined in the Mining Act 1906 or any Act amending the same and all metals gems precious stones coal and mineral oils which may be in under or upon the said land together with full power and authority for US OUR HEIRS and SUCCESSORS and for any person lawfully authorised in that behalf to enter upon the said land and search for work win and remove all or any of the said minerals metals gems precious stones coal and mineral oils: AND FURTHER RESERVING unto US OUR HEIRS and SUCCESSORS the unrestricted right to proclaim Travelling Stock Camping or other Reserves within the said land and to withdraw any land for the purposes of Roads Travelling Stock Camping or other Reserves without payment of any compensation therefor: AND FURTHER RESERVING unto US OUR HEIRS and SUCCESSORS all powers and provisions necessary for the resumption as hereinafter provided of the said lands or any part thereof for mining purposes townships or any public purpose mentioned in or declared as such under the provisions of the Crown Lands Consolidated Act 1913 as amended by subsequent Acts… ." (Emphasis added.)

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166 The provisions of the Lease declare that - "all conditions and provisions contained in the [WLA] and … Regulations … thereunder are in so far as the same are applicable hereto embodied and incorporated with these presents as conditions and provisions of the lease hereby expressed to be granted". 167 The Lease then sets out a number of conditions and other provisions which regulate the use of the land in substantial respects. The conditions and other provisions can be summarised, in so far as relevant, as follows (the numbers below correspond to the clause numbering in the Lease): (1) The lessee shall pay the rent reserved annually in advance. (2) The lessee shall, subject to and in accordance with the provisions of the WLA, "reside on the … land and make it his bona fide residence". (3) The lessee shall "hold and use the … land bona fide for his own exclusive benefit and shall graze own stock upon the land to the satisfaction of the Minister". (4) The lessee will not "use or permit to be used the … land for any purpose other than grazing and the [l]essee shall improve and develop the … land for grazing to the satisfaction of the Minister". (5) The lessee shall "enclose the … land within one year from the date of commencement of the lease with a substantial stock-proof fence to the satisfaction of the [Western Lands] Commissioner". (7) The lessee shall (i) destroy rabbits, dogs, foxes and such other vermin and such weeds declared noxious and keep the land free of such vermin and weeds in accordance with directions given by the Commissioner; and (ii) foster and cultivate such edible shrubs and plants as the Minister for Lands directs and the Commissioner considers can be advantageously and successfully cultivated. (8) The lessee "shall keep and preserve sufficient timber" on the land for the purposes of providing shade and firebreaks. (10) The lessee "shall not have any property rights" in the timber on the land and "shall not ringbark, cut or otherwise destroy" any timber or scrub without permission of the Commissioner, "provided that the lessee may use, in such manner as the Commissioner may from time to time determine, edible trees or scrub for stock feeding purposes, and may take such timber … for building and other purposes … as may reasonably be required by him". (11) The lessee "shall not obstruct or interfere with any reserves, roads or tracks" or their lawful use by any person. (12) The lessee "shall maintain and keep in reasonable repair all improvements on the … land" and allow the Minister or Commissioner and any person authorised by them to enter and inspect the land, buildings and improvements at all times. (14) The lessee "shall not transfer convey assign or sublet the … land or any portion thereof or mortgage or charge the same except in conformity with the provisions of the said Acts with the repayment of moneys advanced on the security thereof without having first obtained the written consent of [the] said Minister". (15) The lessee "shall not overstock, or permit or allow [the demised land] to be overstocked". The Commissioner's decision as to what constitutes overstocking is final and the lessee "shall comply with any directions of the Commissioner to prevent or discontinue overstocking". (16) The lessee "shall permit any person duly authorised in that behalf to enter upon the … land and search for work win and remove all or any minerals metals gems precious stones coal or mineral oils in under or upon the … land". (17) The lessee "shall, if the Minister so directs, prevent the use by stock of any part of the … land for such periods as the Minister considers necessary to permit the natural receding and regeneration of vegetation and for this purpose the [l]essee shall erect within the time appointed by the Minister such fencing as the Minister may consider necessary". (18) The lessee shall "take all necessary steps to protect the … land from bush fire". (20) The Lease shall not be transferred (except by way of mortgage or discharge of mortgage) for ten years after its commencement, except to a member of the forces, discharged member of the forces or other eligible person under the War Service Land Settlement Act 1941 (NSW); or in the event of the death of the lessee, to the widow, widower, child or children of the lessee, or to a member of the forces, etc. (21) The lessee "shall not grant any grazing rights over any part of the land or graze stock thereon under any stock partnership or agist stock thereon" without the Minister's written consent; and if any stock is found depasturing on the lease without such consent, it shall be prima facie evidence of breach. (22) The lessee "shall permit the Minister for Conservation, or any person acting on his behalf, to enter on the land … for the purpose of any survey or investigation, or of carrying out such work in connection with soil conservation and erosion mitigation as he may consider necessary". (23A) The lessee "shall not interfere with any telephone line crossing the land and shall allow reasonable access" for maintenance and repair. (23B) The lessee "shall within three years from the date of the commencement of the lease, enclose with a substantial stock-proof fence an area of about one hundred and sixty acres surrounding the homestead, and shall keep such area free of stock, except that the lessee may graze not more than four head of large domestic stock on such enclosed area". (23) It is agreed and declared that:- (a) "no transfer or assignment of [the] Lease or any agreement to sublet the land or any part thereof shall affect any forfeiture incurred or any debt or liability accrued" under this instrument; (b) "no transfer of [the] Lease shall be registered or recognised if any rent payment or other dues to the Crown are in arrear"; (c) "no public rights now existing or hereafter to be created in and over any Travelling Stock Route Reserve or Camping Reserve which may be included within the land shall be affected by the granting of [the] Lease"; (d) "it shall be lawful for Our Governor of the said State by notification to be published in the Government Gazette to withdraw from this Lease any lands required for mining purposes townships or any public purpose mentioned in or declared as such under the provisions of the Crown Lands Consolidation Act 1913 or any Act amending the same Provided that upon such publication as aforesaid the [l]essee shall be entitled to such compensation in respect of the land so withdrawn for the unexpired term of those presents and for the improvements owned by the [l]essee upon the land so withdrawn as aforesaid as may be determined by [the] said Minister ….". (24) This instrument is made upon the "express condition" that if the rent payable is more than six months in arrears, or whenever there shall be a breach or non-observance by the lessee of any other condition or provision on the part of the lessee to be observed or performed, it shall be lawful for the Minister, after report from the Commissioner, to declare the Lease cancelled and forfeited and the Minister is then entitled to enter upon the land and expel the lessee, without releasing the lessee from liability. (25) The applicable conditions and provisions of the Lease are to be read and construed as covenants by the lessee. 168 Clauses 1-22 and 23-25, summarised above, are printed. Clauses 23A - 23D are typed and have been inserted between cll 22 and 23.

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BACKGROUND TO THE INTRODUCTION OF THE WESTERN LANDS BILL 169 Before reference is made to the relevant provisions of the WLA, mention should be made of the legislative history. A Royal Commission was appointed by the New South Wales Parliament in 1900 to inquire into the difficulties facing Crown tenants in the Western Division. The report, tabled in the following year, provides the background to the enactment of the WLA (see Legislative Assembly, New South Wales, Royal Commission to Inquire into the Condition of the Crown Tenants (Western Division of New South Wales) - Report and Summary of Evidence (1901)). (For an account of the Royal Commission's report and the scheme introduced in 1901, see C J King, An Outline of Closer Settlement in New South Wales (New South Wales Department of Agriculture, 1957), section 7.) The Royal Commission explained that the pastoral industry in the region had become unprofitable in the preceding decades largely due to a series of environmental misfortunes - frequent periods of drought, a disastrous rabbit plague, sand-storms arising from the destruction of vegetation, and the spread of non-edible shrubs - all of which had contributed to an alarming deterioration in the quality of the land. Additionally, overly optimistic initial estimates of the land's carrying capacity were blamed for the problem of over-stocking which had further exacerbated the degradation process. Profits had also suffered due to the contemporaneous decline in prices for pastoral products. The arduous conditions in the Western Division had led to the widespread abandonment of pastoral properties and caused the value of pastoral property in the region to fall by 50 to 80 per cent during the fifteen years prior to the Commission's report (at ix - xii). 170 The Commission rejected (at xviii) the option of allowing the present lessees simply to "drift along to the termination of the existing leases". Such a policy would prolong "the condition of suspended animation which at present characterises in a marked degree the western pastoral industry, with the accompaniment of neglected improvements and non-progressive management; and it might easily lead to the abandonment of holdings in utter despair. The climatic conditions of the west, it may be assumed, are fixed. The only hope appears to lie in a better system of management than has obtained in the past." 171 In formulating its recommendations, the Commission identified a number of defects in the prevailing system of land management, including excessive rents and inadequately sized acreages. It advocated the suitable adjustment of both, as well as the writing down of mortgages. Its key proposal was to extend the pastoralists' tenure, on the basis that this measure would foster occupation and improvement of the land. The report concluded (at xviii) that: "A longer tenure giving the lessee a promise that he will be secured in the fruits of his labour, would seem to be the only effective encouragement that the State can give". 172 Particular sympathy was expressed in the report for the plight of the homestead lessee, whom, it was said, (at ix) - "laboured under an additional disability, namely, being limited by law to an area insufficient over the greater portion of the Division to afford anything like an adequate means of subsistence". 173 Recognising this constraint on the viability of the homestead lessee's operation, the Commission proposed (at xxi) that: "In addition to an extension of the period of homestead leases held bona fide for the sole use and benefit of the lessees, we recommend that wherever practicable the areas be extended to an acreage sufficient to carry not less than 4,000 sheep in the most favoured parts of the Western Division, and up to say from 6,000 to 8,000 sheep in the more distant and inferior parts." 174 The report further proposed that the administration of the Western Division should be entrusted to a single "Pastoral Board", which would replace the local land boards and the Land Appeal Court established under the Crown Lands Act 1884 (at xxiv - xxv). 175 The Commission's report made no mention of Aboriginal rights or interests in land, presumably because this was not within its terms of reference.

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1934 AMENDMENTS - THE INTRODUCTION OF s 23 179 By 1934, the position of Western lessees was again serious as a result of a combination of drought and the depression. Most settlers held areas that were home maintenance or less, but a relatively small number of lessees (223) held 57 per cent of the country. The amending legislation introduced a scheme whereby the larger landholders would have portions of their lands withdrawn at the end of their leases. If such leaseholders voluntarily surrendered part of their lands, they would receive an extension of their leases. (See C J King, at 177-179.) It was in this context that s 23 of the WLA (pursuant to which the Lease was granted) was introduced. 180 In the Second Reading speech for the Western Lands (Amendment) Bill 1934, the Minister for Lands spoke of the Bill (New South Wales, Parliamentary Debates, Legislative Assembly, 17 May 1934 at 401) as "a blessing to many who are desperately in need of additional areas and others who are patiently waiting for a change to secure a home in the west". The Minister said (at 402): "I find the most urgent problems of the Western Division to be - (1) to provide small holders with additional land so that they may be placed in a position to increase their flocks, and consequently their incomes, and thus bring about their sound establishment upon the land, and at the same time (2) to find the best practicable means of achieving this result. The whole matter has received careful and prolonged consideration by the Government. All phases of the problem are directed to the fact that large areas of land are held by a comparatively small number of holders, and that very little vacant Crown land remains to be disposed of in the Western Division. This position immediately gives rise to the proposal of looking to the large holdings for areas to build up the holdings of the small men." 181 The Minister went on to say (at 402): "We have consulted representatives of both large holders and small holders on a number of occasions to ascertain a fair and reasonable basis for bargaining. All parties were unanimous that the only practicable thing to do was to frame a proposition by which large holders would give up portion of their land amicably, and in return accept an extension of the terms of the balance of their lease, together with certain modifications of the conditions of their leases, as compensation for the areas released to the Crown."

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(a) The WLA as in force on 31 August 1953 182 As noted, the Lease was granted on 16 March 1955 and was expressed to take effect from 31 August 1953. The parties appeared to accept that the material date for determining the effect of the WLA was the date the lease took effect. While it is arguable that the date of the grant is the material date, the legislation was not relevantly amended between August 1953 and March 1955. Accordingly, this summary refers to the WLA as at 31 August 1953. 183 The WLA repealed the Crown Lands Act 1884 (NSW) in its application to specified Crown land holdings in the Western Division, unless exempted under the WLA itself (s 2). 184 The administration of the WLA was vested in a Western Lands Commissioner ("the Commissioner") appointed by the Governor: s 4. 185 The Minister was empowered to direct any local land board to deal with any matter, question or inquiry arising under the WLA (s 10) and to require the board to make a report (s 10A). The Minister could refer any question of lapse, voidance or forfeiture to the local land board for due investigation and decision in open court (s 10B). 186 The Minister, the Commissioner, or other person authorised, was empowered at any time to enter upon any Crown lands within the Western Division for the purpose of giving effect to the provisions of the WLA or the Crown Lands Acts (s 12). 187 Section 18 dealt with terms and conditions of leases, and aspects of forfeiture, relevantly as follows: "18. All leases issued … under the provisions of this Act … shall contain the covenants, reservations, and exemptions set out in Schedule A hereto, or such of the same as the Minister may deem applicable … and no lease shall convey any authority to carry on mining operations thereon. Every such lease shall contain a provision to the satisfaction of the Minister for the destruction of rabbits, and any lease shall, in the discretion of the Minister, after report from the Commissioner, be liable to forfeiture for breach of any of the covenants therein contained or annexed by law thereto: Whenever in pursuance of the provisions of this Act any holding or any right, title or interest to or in any land, becomes liable to be forfeited, such forfeiture may be declared by the Minister by notification in the Gazette. … No forfeiture, cancellation or lapsing shall operate to extinguish any debt to the Crown. The Minister may, in the recommendation of the Commissioner, waive or reverse, whether provisionally or otherwise, and on such conditions as he may think fit, any such forfeiture, cancellation, or lapsing. Any such reversal shall be notified in the Gazette." 188 Schedule A, substantially regulating the use of the land along the lines of the conditions and provisions of the Lease, was as follows: "Schedule A COVENANTS, reservations, and exceptions referred to in section eighteen:- (a) To pay rent annually in advance. To pay any moneys owing to the Crown under the provisions of the Crown Lands Acts. (b) To take, within a specified time, such steps and measures to destroy rabbits, dogs, and other vermin as the Commissioner shall from time to time direct, and to keep the lease free of vermin during the currency of the lessee to the satisfaction of the Commissioner. (c) To destroy such noxious weeds as the Commissioner may from time to time direct. (d) Except for the purpose of building, fencing, or for firewood, not to destroy, or permit the destruction of any timber on the lease without the written consent of the Commissioner. (e) Not to obstruct or interfere with any reserves, roads, or tracks, or the use thereof by any person. (f) To foster and cultivate such edible shrubs and plants, and take such steps in this respect as the Minister may from time to time direct. (g) To furnish such returns or statements as the Commissioner may from time to time require in connection with any lease or license, or freeholds or conditional purchases in the Western Division, or worked in conjunction with any lease or license in the Western Division. (h) To furnish such returns or statements as the Commissioner may from time to time require in connection with any sheep or large stock, cost of improvements, working expenses, or any other matter relative to any holding in the Western Division, or to any of the matters herein mentioned in connection with any property worked in conjunction with any lease or license in the Western Division. (i) To permit the Commissioner and all persons authorised … to enter and view the whole or any part of the lease or buildings or other improvements thereon. (j) To keep in reasonable repair all improvements on the lease. (k) Reservations in favour of the Crown of all minerals, metals, gems, precious stones, coal, and mineral oils, together with all rights necessary for ingress, egress, search, prosecution, and removal and all incidental rights and powers. (l) The unrestricted right to proclaim travelling stock, camping or other reserves. The unrestricted right to withdraw any land for the purposes of roads or travelling stock, camping or other reserve. (m) The unrestricted right for the Minister, the Commissioner, or any persons duly authorised in that behalf to enter upon and examine such land and the improvements thereon. (n) The right, if the rent or license fee be not paid on the due date, to impose a penalty not exceeding ten per cent per annum on the amount unpaid. (o) A proviso that if rent shall be in arrear for more than six months after due date, or if there has been a breach or non-performance of any of the lessee's covenants or conditions the Minister may cancel the lease. (p) Provisions for resumption of lands for mining purposes, townships, or any public purpose under the provisions of the Crown Lands Acts; and for compensation for resumption. (q) Reservations in favour of the Crown necessary or proper for giving effect to any Act or regulation for the time being in force." 189 All leases were to "be subject to a condition that the boundaries of the lands leased shall be fenced within such period and with such class of fencing as may be determined by the Commissioner not being a rabbit-proof fence …" (s 18A). However, a proviso empowered the Commissioner to exempt, vary or modify this condition. 190 By section 18D:- "(i) No lease other than a special lease for that purpose shall confer any right to remove material from the leased land or to prevent the entry and removal of material by authorised persons. (ii) A lessee may take from land under lease to him and not comprised within a timber or forest reserve such timber and other material for building and other purposes on the land or on any contiguous land held in the same interest as may reasonably be required by him. (iii) No lessee shall prevent any … authorised [persons] from cutting or removing timber or material or from searching for any mineral within the land under lease. (iv) A lessee shall, if the Minister so directs, prevent the use by stock of any part of the land for such periods as the Minister considers necessary to permit of natural reseeding and regeneration of vegetation; and, for this purpose, the lessee shall erect within the time appointed by the Minister such fencing as the Minister may consider necessary. (v) A lessee shall not overstock or permit or allow to be overstocked the said land, and the decision of the Commissioner as to what constitutes overstocking shall be final, and the lessee shall comply with any directions of the Commissioner to prevent or discontinue overstocking. (vi) A lessee shall use iron or steel posts (with wooden strainers) for the erection or repair of all fencing on the land, except that, in special cases, the Commissioner may permit the use of other posts." 191 Section 18E (inserted in 1932) provides for the extension of a subsisting lease to a lease in perpetuity upon application by the holder. 192 Section 18F (inserted into the WLA in 1934) made residence a condition of any lease applied for after the commencement of the Western Lands (Amendment) Act 1934:- "18F. (1) A condition of residence for a term of five years shall attach to every [such] lease … in respect of land set apart for disposal by way of lease generally and shall be performed by the lessee or some other person approved by the Commissioner. Residence shall commence within six months after the commencement of the lease: Provided that- (i) the local land board may suspend the condition of residence for such periods and upon such conditions as it may determine; or (ii) the lessee or such other person may with the permission of the local land board perform such condition by residing anywhere within a reasonable working distance of the lease. (2)(a) A provision in any instrument of lease or a condition attaching to any [such] lease …to the effect that the lessee shall occupy the land within the lease during the whole of the term of the lease by the continuous and bona fide residence of himself or some other person approved by the Commissioners of the Western Land Board of New South Wales in writing shall cease to have effect upon the issue by the local land board of a certificate that continuous residence for a period of five years has been performed upon the lease by or on behalf of the lessee or his predecessors in title. (b) …." 193 Section 18G dealt with the transfer, conveyance, assignment or mortgage of leases applied for after the 1934 amendments. Except as otherwise provided in the WLA, no transfer, conveyance, assignment, mortgage or other dealing (except a discharge of mortgage) was to be effected unless the consent of the Minister had first been obtained (s 18G(1)). Without limiting the generality of the Minister's discretion, the Minister was to: "… have regard to the desirability of preventing undue increases in the price of land and its use for speculative or uneconomic purposes, taking into account the circumstances of the particular case and all other relevant considerations including in particular, the following matters:- (i) the amount of the purchase money, rent or other consideration to be paid and the extent to which it exceeds the fair market value of the lease or the rent or other consideration appropriate to that fair market value; (ii) the terms of the transaction, and the terms of any other transaction in any way related thereto …." (s 18G(1A)(a)). 194 The Minister was also given the power to refuse consent where the amount of purchase money, rent or other consideration appeared (to the Minister) to exceed by 10 per cent or more the fair market value of the lease or the rent (s 18G(1A)(c)). Any party to the transaction could appeal from a refusal of consent to the local land board (s 18G(1A)(d)). 195 No transfer could be effected unless the owner of the improvements had certified that such owner had received the value of the improvements (s 18G(2)). No transfer in contravention of this provision was valid for any purpose (s 18G(4)). 196 Any lease applied for after the 1934 amendments was liable to forfeiture if the holder sublet the lease or any part thereof, or granted any grazing rights over the lease or any part thereof without having first obtained the written consent of the Minister. If any stock not owned by the holder was found depasturing on the lease or any part thereof without the Minister's consent, it was to be prima facie evidence of a breach of the subsection (s 18G(4A)). 197 Where a lease applied for after the 1934 amendments was mortgaged, and the mortgagee entered into possession of the lease under the mortgage, the mortgagee could hold the lease for a period of three years after the date of entry into possession, or for such further period as the Minister, after report by the Commissioner, permitted. The mortgagee could not foreclose the mortgage or transfer the lease, except by way of discharge or mortgage, without the consent of the Minister. If, within the period of three years, the mortgagee did not foreclose the mortgage or transfer the lease, the lease was liable to be forfeited (s 18H(1)). Any covenant, condition, purpose or provision of a lease could, on the recommendation of the local land board and with the consent of the lessee, be varied, modified or revoked or added to by the Minister to such extent and on such terms as the Minister deemed desirable (s 18J). 198 The rent of any lease in perpetuity applied for after 30 June 1943 in respect of land set apart for grazing was to be determined by the local land board. The rent so determined was to be payable for a period of ten years commencing from the date of granting the lease. For each separate period of ten years thereafter, the rent payable was to be the rent as redetermined by the local land board (s 19B(a1)). In determining or redetermining the rent of any lease of land held for grazing, the board was to have regard to the productive capacity of the land under fair average seasons, prices and conditions (s 19B(3)). The rent was to be paid annually in advance (s 19B(4)). 199 Section 23, as previously mentioned, the source of the authority to grant the Lease, conferred upon the Minister the power to grant leases as follows: "23(1)It shall be lawful for the Minister to grant leases of Crown Lands - (a) as leases in perpetuity; or (b) … Any lease so granted shall except as otherwise provided in this Act be subject to the general provisions of this Act. (2) Except as otherwise provided in this Act, the Minister shall not grant a lease of any Crown lands unless such have been set apart for disposal by notification in pursuance of section twenty-four of this Act. (3) The Minister shall not grant a lease in perpetuity to an applicant who holds under any tenure (other than annual lease, preferential occupation license, occupation license or permissive occupancy then having not more than one year to run) an area of land which when added to the land applied for would substantially exceed a home maintenance area. For the purpose of this subsection lands held by the spouse of the applicant shall be deemed to be lands held by the applicant…." 200 (By a new definition added in 1949, a "home maintenance area" was defined to mean: "an area which when used for the purpose for which it is reasonably fitted, would be sufficient for the maintenance in average seasons and circumstances of an average family." (s 3)) 201 Section 24 gave the Minister the power to declare that any Crown lands be set apart for disposal as follows: "24(1)The Minister, after such inquiry and report as may be deemed expedient, may declare by notification in the Gazette that the Crown lands comprised within any area to be described in the notification shall be set apart for disposal by way of- (a) lease generally; or (b) lease exclusively to holders of land under any tenure situated in the Central Division within a reasonable working distance of such lands; or (c) lease exclusively to holders of land under any tenure situated in the Western Division within a reasonable working distance of such lands; or (d) lease exclusively to both classes of holders of land as aforesaid. (2) The Minister shall specify in any such notification that the land is set apart for the purpose of grazing or grazing and agriculture combined or mixed farming, or for any similar purpose or purposes." 202 Section 25(1) provided that a person not subject to any relevant disqualification could apply for a lease of land set apart under the WLA for disposal by way of lease. The local land board was to deal with all applications and to make a recommendation to the Minister (s 25(3)). (See generally Ex parte McDougall; Re Tully [1945] 45 SR(NSW) 188 (FC); Ex parte Hopkins; Re Cronin [1957] SR(NSW) 554 (FC).) 203 Section 28A of the WLA empowered the Minister, on the report of the Commissioner, to lease Crown lands for any purpose declared to be a "special purpose". 204 Upon the expiration, forfeiture, surrender or other determination of any lease, all improvements, except as otherwise provided in the WLA, were to become the property of the Crown (s 29(1)). The Minister, after report by the Commissioner, could conditionally or unconditionally assure or grant tenant right in any improvements (s 29(2)). Tenant right was to accrue upon the determination of the lease (s 30(1)). 205 The Governor was also given power to make regulations for the general purpose of carrying the WLA into effect (s 36). 206 Section 44(1) gave the Governor the power to withdraw land from lease in certain circumstances as follows: "44(1)The Governor may withdraw the whole or any part of the land comprised in any lease under this Act in any case in which in his opinion such land is required for the purpose of settlement, and in connection with such withdrawal shall acquire any freehold portions owned by the lessee and situated within and used in conjunction with such lease or part …." 207 The lessee was thereupon entitled to compensation (for complete or partial withdrawal) of the market value of the interest held in the leased land based entirely upon its market value for pastoral or grazing purposes (s 44(1)).

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CHARACTERISTICS OF A STATUTORY LEASE IN PERPETUITY 209 The characteristics of a statutory lease in perpetuity in New South Wales have been considered by the High Court of Australia and by the New South Wales Court of Appeal, but not in the context of a claim of indigenous rights. Nonetheless, the cases are important for present purposes for their illumination of the nature of a statutory Crown perpetual lease. This is at least our starting point. 210 A lease in perpetuity of Crown lands was considered by the High Court in Hawkins v The Minister for Lands NSW (1949) 78 CLR 479. One of the issues was whether land so leased was nonetheless land "vested" in the Crown. The issue arose in this context. On an application to convert a Crown lease into a conditional purchase, it was argued that the conversion was not possible since the lands were no longer "Crown lands", having been reserved from sale, and "lawfully contracted to be granted in fee simple". But it was held that the perpetually leased lands remained "Crown lands" which could be converted; although their reservation from sale precluded their conversion. For our purposes, it follows that although perpetual, the Lease must be viewed as a lease, rather than as a notional fee simple. 211 Latham CJ said (at 487): "Under a Crown lease, even though it is a perpetual lease, the Crown has become the landlord of the lessee, rent is payable to the Crown as landlord, and if the lessee does not perform the conditions of the lease the lease may be forfeited and then the Crown would have a complete title free from the lease. In my opinion it should not be held that lands subject to a Crown lease are not lands vested in the Crown." 212 Dixon J said (at 492): "… it is said for the lease-holder that the existence and the incidents of the Crown lease are inconsistent with the land falling within the definition of 'Crown Lands.' Because it is a Crown lease in perpetuity the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non-payment of survey fees, of forfeiture. It is difficult to find any ground for giving to the word 'vested' anything but its legal meaning. It can hardly be confined to 'vested in possession.' The reference in the exclusionary part of the definition to land granted in fee simple tends strongly against the view that after the grant of a limited interest in possession land is no longer 'vested' in the Crown for the purpose of the definition. In my opinion land subject to a Crown lease in perpetuity may still be 'vested in His Majesty.'" 213 Some other characteristics of a lease in perpetuity, specifically a perpetual lease, as here, granted under the WLA were considered by the Court of Appeal of the Supreme Court of New South Wales in Minister for Lands and Forests v McPherson above. It was there held (Kirby P, Mahoney and Meagher JJA) that nothing in the WLA precluded the grant of equitable relief against forfeiture of an interest in such a lease. The case is important here, notwithstanding that no question of native title rights arose for consideration. 214 Kirby P (with whom Meagher JA agreed in material respects) first noted the "emphasis upon the parliamentary definition of rights and obligations" in respect of Crown land in de Britt v Carr (1911) 13 CLR 114 (per Griffith CJ at 122) and in Davies v Littlejohn (1923) 34 CLR 174 (per Isaacs J at 187 - 188). Kirby P went on to say (at 695 - 696): "The conditional purchase was not an interest which existed at common law. It was therefore natural that, in respect of such a right, created purely by statute, that its incidents, features and obligations should be taken as defined by the statute creating that right. A lease, on the other hand, is an interest which has been known to the common law for centuries. Long before the Western Lands Act, and indeed long before the discovery and settlement of this country, the Crown had leased land to its subjects. Those subjects thereby acquired interests in such Crown leases." 215 Kirby P referred (at 696) to frequently cited observations of Griffith CJ in O'Keefe v Williams (1910) 11 CLR 171. Griffith CJ said at 191 - 193: "In my opinion, when one man is put in possession of land by another, full effect cannot be given to the intention of the parties without implying an obligation that the lessor shall neither disturb the possession himself nor authorise its disturbance by others…. I do not know of any ground in reason or authority for applying different canons to the construction of contracts between the Crown and a subject and contracts between subject and subject …. I am of the opinion that a contractual obligation is to be implied in the case of a demise by the Crown under the Australian Crown Lands Act, to the effect that the Crown will not disturb or authorise the disturbance of the lessee in his occupation." 216 Kirby P concluded (at 696) that there was "no inherent conflict" between the reasoning in O'Keefe and Davies, noting that in O'Keefe, Griffith CJ had said (at 190) that the "mutual rights and obligations of the Crown and the subject depend, of course, upon the terms of the Statute". Kirby P said (at 696 - 697): "The clear principle of all these decisions of the High Court is that the first duty of the Court is to examine the statute to see whether, consistently with its terms, other rights and obligations that would apply by the general law attach to the statutory entitlements and duties of the parties. In the case of an interest called a 'lease', long known to the law, the mere fact that it also exists under a statute will not confine its incidents exclusively to those contained in the statute. On the face of things, the general law, so far as it is not inconsistent with the statute, will continue to operate. Thus, the answer to whether relief against forfeiture of a statutory lease under the Act is available to a party having an interest in that lease depends not upon any broad exclusion of the general law (including of forfeiture) but upon a detailed consideration of whether that law is compatible with the provisions of the Act, specifically those providing for forfeiture." (Emphasis added) 217 Kirby P next analysed the provisions of the WLA with respect to forfeiture against the background of first, "the presumption of our legal system that Acts of Parliament are intended to operate justly" (at 698); and secondly, the "[equitable] jurisdiction [which] included a power, in special and extraordinary circumstances, to provide relief to a person with an interest in a leasehold, from forfeiture of that interest" (at 702). Observing (at 702) that none of the State legislation, including the WLA, had expressly revoked that jurisdiction, his Honour went on to conclude (at 702 - 703) that the power to provide relief had not been ousted by implication, because he could "see no mischief in the simultaneous existence of a statutory and equitable procedure for relief against forfeiture of the interests in leases under the Act". Kirby P said (at 702- 703): "Whilst the 'leasehold' envisaged by the Act has particular incidents, it remained a 'leasehold'. No express provision excluding the jurisdiction of the Supreme Court in its Equity Division or repealing or limiting its power to provide relief is stated in the Act. Such restrictions must therefore be left to the work of implication. But why cannot this ancient and beneficial remedy co-exist with the Minister's powers?" 218 Meagher JA (at 716) agreed with this conclusion. 219 Mahoney JA arrived at the same conclusion. He first noted that the nature of a lease under the WLA had not previously been considered by the superior courts - it appeared that the only two cases in which relevantly analogous questions had been considered were O'Keefe v Williams and Davies v Littlejohn and that McPherson was only the second case in which the Minister has exercised the power of forfeiture of a lease under the WLA (at 704). 220 Mahoney JA said (at 707): "In my opinion, the rights described as 'lease' in the 1884 [Crown Lands] Act were essentially the rights given to a lessee under a lease of land as understood under the common law. Those rights were altered or added to by the terms of the 1884 Act. Restrictions were placed upon the lessee's right to remove material from the leased land or to sublet it: s 98(1) of the 1884 Act; and authorised persons could take timber or material for building or other purposes or search for minerals within the leased land: s 98(3) of the 1884 Act. However, in my opinion, those statutory additions to or qualifications of the rights arising from a lease under the common law did not alter the essential nature of the lease granted. The lease remained, in my opinion, a common law lease. The significance of this is, of course, that the incidents of a common law lease, including the equitable jurisdiction to relieve against forfeiture of it, would prima facie be applicable to it. The nature of rights granted under the 1884 Act was considered by the High Court in O'Keefe v Williams. The rights there directly in issue were the rights granted by an occupation licence. However, the court held that 'the substantial relation between the Crown and the holder of an occupation licence is that of landlord and tenant' (at 191) per Griffith CJ." (Emphasis added) 221 After observing (at 712) that "the principles adopted in Davies v Littlejohn are [not] inconsistent with those adopted in O'Keefe v Williams", Mahoney JA said (at 712): "There are, I think, two alternative views of what is done when a 'lease' is granted under the Western Lands legislation. First, the authority granted by the legislation may be read as: The relevant authority may grant a common law lease of land in the Western Division, but such lease shall contain the covenants and conditions and have the other incidents provided for in the legislation. Or, secondly, it may be read as: The relevant authority may grant statutory rights, described for convenience as 'lease' but being statutory rights, having the covenants conditions and other incidents provided for in the legislation." (Emphasis added) 222 His Honour continued (at 713): "As at present, I incline to the first view. If that be correct, then the lease, being a common law lease, will prima facie have the incidents of such a lease. One of those incidents is that equity may relieve against forfeiture of it. Such an incident may be excluded by the terms of the legislation: to that I shall come. It may be excluded if the fact that the lease is by the Crown is inconsistent with equitable intervention of that kind. There are some equitable doctrines which do not operate against the Crown. But it has now been argued that this is such: had such been argued, it may be that evidence would have been relevant to bear on that matter or, for example, the creation of estoppels or the like. Accordingly, I would therefore decide this case on the basis that the lease is a common law lease and is subject to such equitable intervention in the normal course. But if the second view be correct, the result is, I think, the same. If they be statutory rights, the nature of them is that described by the court in O'Keefe v Williams. They are rights subject to the implications and, I think, the equitable doctrines applicable to common law transactions of an analogous character. Thus, I think, equitable doctrines relating to release or waiver would be applicable in respect of these rights: see generally Halsbury's Laws of England, 4th ed, vol 16, pars 1470 et seq at 991 et seq. Whether or not laches be available against the Crown, acquiescence as an equitable defence would, I think, be available in the present case: see Halsbury (par 1475); Attorney-General to His Royal Highness the Prince of Wales v Collom [1916] 2 KB 193 at 204 per Atkin J. On either view, therefore, the right to relief against forfeiture would be available." (Emphasis added) 223 The reasoning in McPherson was referred to with approval in Wik. 224 McPherson in the Court of Appeal (at 697 - 703; and at 713 - 715, together with the decision of Kearney J to similar effect at first instance at (1990) 22 NSWLR 671 at 682 - 683) was cited by Gummow J, a member of the majority in Wik (at 198), as authority for the proposition that - "In the circumstances of the particular case and depending upon the particular incidents attached by statute to the interest in question, there may be an equity to relief against forfeiture of that interest." 225 Kirby J in Wik (at 245) referred to McPherson as authority for the proposition that a lessee under the Queensland Crown Lands legislation "would be entitled to seek relief in equity in certain circumstances as under a private lease". 226 McPherson was also approved by Brennan CJ, with whom Dawson and McHugh JJ agreed, as members of the minority in Wik. Brennan CJ said (at 79 - 80) that the Court of Appeal "was right to view [Davies and O'Keefe]as cases dealing with distinct subjects" and referred with specific approval to the passages in the judgments of Mahoney JA (at 712) and of Kirby P (at 696) in McPherson quoted above. 227 McPherson is significant here for two reasons. First, it is the only authority of an Australian appellate court deciding the nature of a lease under the WLA. Secondly, as a matter of comity, this Court should follow an interpretation placed on such legislation by such a court "unless convinced that that interpretation is plainly wrong" (see Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492). This is particularly so when the decision is one of a Court of Appeal of a State considering the State's property legislation, and which has the approval of the High Court. 228 As I understand the arguments before us, it was not suggested, nor in my view, could it be suggested, that McPherson was wrongly decided. But for obvious reasons, the arguments focussed upon the later important decision of the High Court in Wik which is central to the present issues and to which I now turn.

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REASONING AND DECISION IN WIK 229 At first instance in Wik, Drummond J had determined, as a preliminary issue, the effect of the grant of several Queensland pastoral leases (referred to as the Holroyd Leases and the Mitchellton Leases respectively) upon any native title which might be found to exist. His Honour's decision on this issue was expressed in the answers to two questions. In the course of those answers, his Honour held that each of the leases conferred on the lessee "rights to exclusive possession" of the land, and that thereby the grant of each lease "necessarily extinguish[ed] all incidents of Aboriginal title ... in respect of the land demised under the pastoral lease" (see The Wik Peoples v The State of Queensland (1996) 63 FCR 450; and see per Toohey J in Wik in the High Court at 103). 230 An appeal to the Full Federal Court from the judgment of Drummond J was removed into the High Court. By a majority (Toohey, Gaudron, Gummow and Kirby JJ; Brennan CJ, Dawson and McHugh JJ dissenting) the appeal was allowed. 231 In respect of the Holroyd leases, it was ordered by majority, that relevant questions be answered as follows (at 261 - 262): Question 1(B) "If at any material time Aboriginal title … existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding … (b) does the pastoral lease confer rights to exclusive possession on the grantee?" … Answer (b) "No." … Question 1B(d) "(d) did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title … of the Wik Peoples in respect of the land demised under the pastoral lease?" Answer (d) "Strictly does not arise but is properly answered No." 232 By a majority, similar answers were ordered to be given (at 262 -263) in respect of the Mitchellton leases. 233 Each member of the majority published full reasons. Given the obvious significance of Wik for our purposes, and the immense complexity of the issues that have arisen in this area, it will be necessary to refer to their individual reasons at some length. As Toohey J said of the questions asked in Wik, they "reduce to straightforward propositions what are in truth complex issues of law and fact" (at 131).

[19]

Some background to the leases 234 To place the Wik leases in their context, some of their background should first be noticed. 235 One of the Holroyd leases, granted in 1945 and entitled "Lease of Pastoral Holding under … The Lands Acts 1910 to 1943", was expressed to be for "pastoral purposes only", had a term of thirty years and an area of 1,119 square miles. The lease contained reservations of minerals and petroleum, and rights of access for the purpose of searching for and obtaining them, together with reservation of the right of any authorised person "at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same" (per Toohey J at 104 - 105). In 1972 the lessees applied for a new lease. Included in their description of the land were statements that this was purely breeding country, with approximately one beast to sixty acres; no improvements; no accommodation. A new lease issued in 1975 entitled "Lease of Pastoral Holding under … the Land Act 1962 - 1974", for a term of thirty years. Although not expressed to be for pastoral purposes only, it was expressed to be subject to statutory and other reservations similar to those contained in the earlier lease. It was granted upon condition that, within five years, the lessees carry out a number of improvements by way of buildings, an airstrip, internal fencing, dams, a set of main yards and dip; sow 100 acres at least as a seed production area; and "enclose the holding with a good and substantial fence"" The lessees were further required "during the whole term of the lease [to] maintain all improvements" (per Toohey J at 105 - 106). 236 There were several Mitchellton leases. The first, in 1915, entitled "Lease of Pastoral Holding under … the Land Act of 1910", had a term of thirty years, an area of 535 square miles, was "for pastoral purposes only", and had reservations similar to the Holroyd lease. But the lessees never took possession and failed to pay rent and the lease was forfeited. In 1919, a further lease was granted under the Land Act 1910 for thirty years, for "pastoral purposes only". It was subject to reservations under the Mining on Private Land Act 1909 (Qld) and reserved a right of entry by authorised persons (per Toohey J at 106 - 108). 237 As mentioned, each of the Justices constituting the majority published his or her own reasons. The reasoning is complex and necessarily lengthy - the authorised report extends to 264 pages. The Court was divided 4 - 3; and even in the majority judgments there are some differences of approach, and of emphasis. Yet, it could not seriously be disputed that the present litigation raises issues which are similar to, and analogous with, those in Wik. It may be argued, with some force, that Wik is a square and binding authority for our purposes. On any view, an analysis of the essential steps in the process of reasoning in each of the majority judgments in Wik is a necessary prerequisite to an understanding of the novel issues that arose in that historical and legislative context; and that understanding is, in turn, essential for the determination of the present questions.

[24]

· The language of the lease instruments that the Crown "[did] [t]hereby … demise and lease" the lands is noticed (at 115). Yet, with reference to Queensland's argument that the instruments, being pastoral leases, conferred on the lessees rights of exclusive possession, his Honour said (at 115 - 116): "To pose the issue in that way is to focus unduly on leasehold interests as known to the common law and to give insufficient recognition to the fact that the pastoral lease is a creature of statute. Accordingly, the rights it confers and the obligations it imposes must be determined by reference to the applicable statutory provisions. That is not to say that reference to leasehold interests at common law does not aid an understanding of these rights and obligations. But it must not be allowed to obscure the particular nature of a pastoral lease under the relevant legislation. And it must not divert attention from the basic question whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished." · His Honour accepts that the authorities certainly point to exclusive possession as a normal incident of a lease. They do not exclude, however, an inquiry whether exclusive possession is, in truth, an incident of every arrangement which bears the title of lease. Furthermore, those authorities, which are directed to commercial transactions between individual persons or corporations, are not concerned whether something that is underpinned by common law recognition, namely, native title rights, is excluded by the grant by the Crown of what is described as a pastoral lease over land to which those rights attach (at 118). · The authorities which apply the rule that courts will construe a statute in accordance with common law principles governing the creation and disposition of rights of property, may be distinguished on the ground that they arise in the different context of a commercial transaction (at 118 - 119). · It is not surprising that the terminology of pastoral leases is employed by the legislature; and it is important to bear in mind the historical developments. The provisions in the Regulations under the Crown Lands Unauthorised Occupation Act 1839 - 1841 (NSW) for the cancellation of a licence if the licensee was convicted "of any malicious injury committed upon or against any aboriginal native or other persons" should be regarded as "indicat[ing] a contemplation that Aborigines would be upon licensed lands". Moreover, "the thrust of contemporary documents … make it clear that Aborigines were not to be excluded from land under pastoral occupation" (at 119). · Reference is made, in particular, to communications by Earl Grey, as Secretary of State, to the Governor of New South Wales in 1848 (repeated in 1849) concerning pastoral leases, his intention being to "give the grantees only an exclusive right of pasturage … and of cultivating … as they may require within the large limits thus assigned to them, but … 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 …" (at 119). · "Against this background, it is unlikely that the intention of the legislature in authorising the grant of pastoral leases was to confer possession on the lessees to the exclusion of Aboriginal people even for their traditional rights of hunting and gathering. Nevertheless, 'intention' in this context is not a reference to the state of mind of the Crown or of the Crown's officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the 'intention' to be discerned from it" (at 120). · Macdonald v Tully [1870] 2 QSCR 99 (at 106), a decision of the Full Court of the Supreme Court of Queensland that a pastoral lessee's "right … to occupy", while awaiting the issue of a formal lease, "was … capable of being maintained against any disturber …", is distinguished on the ground that the Full Court was clearly directing its attention to the position of third parties in the conventional sense, not to Aborigines whose traditional land might fall within the lease (at 120). · The same may be said of the statement by the Full Court in Wildash v Brosnan [1870] 1 QCLLR 17 (at 18) that a pastoral lessee had an "exclusive right to the land" (at 120). · Observations of Brennan J in Mabo v Queensland (No. 2) (1992) 175 CLR 1 (at 66) that s 203 of the 1910 Act, and its counterpart, s 372 of the 1962 Act, were "not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title" are followed (at 121). · A pastoral lease under the relevant legislation grants to the lessee the possession of the land for pastoral purposes; and the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes (at 122). · "Each lease contains a number of reservations of rights of entry, both specific and general. The lessee's right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which confers on the grantee any rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involve going on to or remaining on the land, it cannot be said that the lease confers on the grantee any rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo (No. 2). It is simply that there is nothing in the statute or grant, that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time" (at 122). · Although it did not strictly then arise, his Honour went on to consider the issue of extinguishment. In that context, inconsistency can only be determined by identifying what native rights are asserted and then measuring them against the rights conferred on the grantees of the leases; to the extent of the inconsistency, the latter prevail (at 126). (As will be seen, his Honour returned to this subject in a postscript.) · "It is too simplistic to regard the grant by the Crown of a limited interest in land as necessarily extinguishing native title rights. It is a large step indeed to conclude that, because there has been a grant of a 'lease' of many square miles for pastoral purposes, all the rights and interests of indigenous people were intended thereby to be brought to an end" (at 130).

[26]

The reasoning of Gaudron J 241 Her Honour's reasons were to this effect: ¨ The early history of colonial land law in New South Wales and Queensland is surveyed, and Earl Grey's 1849 despatch, in particular, is noticed (at 141). ¨ The "pastoral leases are not the creation of the common law; that they are now and have for very many years been entirely anchored in statute law appears from the cases which have considered the legal character of holdings under legislation of the Australian States and, earlier, the Australian colonies, authorising the alienation of Crown Lands" (at 149). ¨ "Whatever may have been said in the decided cases as to holdings under other legislation, it is clear that the Mitchellton pastoral leases derive entirely from the 1910 Act and that they conferred, and only conferred, the estate or interest which that Act authorised. As there has been no case which decides what that estate or interest was, and as the Act, itself, contained no express provision in that regard, the estate or interest must be ascertained by application of those principles of statutory construction which have been devised to determine what it was that the legislature intended but failed to say in plain words" (at 150). ¨ There were difficulties in applying traditional common law principles respecting property rights to the pastoral leases; and that "the word 'lease' and the expression 'demise for a term of years' cannot, of themselves, provide a basis for holding that a pastoral lease under the 1910 Act conferred a leasehold estate, as understood by the common law and, thus, conferred a right of exclusive possession. Rather, the search must be for indications within the Act that it was intended that pastoral leases should confer that right" (at 151 - 152). ¨ One of those difficulties was that a "lease in perpetuity" is "an expression which is unknown to the common law and which cannot possibly take its meaning from it" (at 153). ¨ "The strongest indication that a pastoral lease granted under the 1910 Act did not confer a right of exclusive possession is to be found in those provisions of the Act conferring rights on persons authorised … to enter upon the land the subject of a pastoral lease to remove timber, stone, gravel, clay, guano or other material (s 199), denying the lessee the right to ringbark, cut or destroy trees (s 198) and also denying the lessee power to restrict authorised persons from cutting or removing timber or material within the holding (s 200)" (at 154). ¨ In this connection, reference should also be made to the provision permitting others to depasture stock if a stock route or road passed through the holding; and to the reservation of the right of a person authorised to go upon the land for any purpose, or to make a survey, inspection or examination (at 154). ¨ "Moreover, the vastness of the areas which might be made the subject of pastoral leases and the fact that, inevitably, some of them would be remote from settled areas militate against any intention that they should confer a right of exclusive possession entitling pastoralists to drive native title holders from their traditional lands. Particularly is that so in a context where, in conformity with the prescribed form, the grants were expressed to be made 'for pastoral purposes only'" (154). ¨ The rule of construction that clear and unambiguous words are required before imputing an intention to extinguish valuable rights without compensation is mentioned. But "[w]hether the rule be stated generally or by reference to native title rights, it dictates the conclusion that, whilst the grant of a pastoral lease under the 1910 Act certainly conferred the right to occupy land for pastoral purposes and s 204 conferred the right to bring action for the removal of persons in unlawful occupation, a pastoral lease did not operate to extinguish or expropriate native title rights, as would have been the case, had it conferred a right of exclusive possession" (at 155). ¨ As to the Holroyd lease granted under the 1962 Act, the statute and the terms of the lease differed from the 1910 Act and the Mitchellton lease in some respects. But they did not change "the essential nature" of pastoral leases. They "[fell] short" of a "clear indication" that a right of exclusive possession was conferred (at 166).

[27]

The reasoning of Gummow J 242 His Honour reasoned thus: v The origins of the "new forms of tenure" created last century in the Australian colonies upon the disposal of waste Crown lands are explained (at 171 - 175). v The dispute in Wik was whether the grants of the leases, pursuant to the 1910 and 1962 Acts, were inconsistent with the continued existence of any native title rights which subsisted when the grants were made. In determining this issue, "the better guide [is] the 'time-honoured methodology of the common law' whereby principle is developed from the issues in one case to those which arise in the next", rather than the historical method of "extrapolation to an assumed generality of Australian conditions and history …" (at 184). v The Court was called upon to construe statutes enacted at times "when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been" (in Mabo (No. 2)) (at 184). v The concept of abrogation (i.e. extinguishment) may be seen in, e.g. Yarmouth Corporation v Simmons (1878) 10 Ch D 518 where, in rejecting a submission that a public right of way could only have been abrogated by express words in the legislation, Fry J said (at 527) that - "when the Legislature clearly and distinctly authorise the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right." v This requires "a comparison between the legal nature and incidents of the existing right and of the statutory right" (at 185). v The general provisions of ss 203 and 204 of the 1910 Act (ss 372(1) and 373(1) of the 1962 Act) do not necessarily involve the extinguishment of native title (at 190 - 195). v Macdonald v Tully illustrates that an end sought to be achieved by legislation such as ss 203 and 204 was the imposition of legal order upon the confusion which developed with the expansion of European settlement; in particular, s 204 confers some security of tenure against third parties, including settlers with competing claims (at 192 - 193). v The term "lease" may be used in a statute "in a limited sense only"; and the phrase "statutory tenant" may be used "to identify … rights and obligations which subsist only by virtue of the legislation and are unknown at common law" (at 195 - 196). The subject legislation was "comparable" to that identified by Isaacs J in Davies v Littlejohn (above) at 186 - 187, that is (as Isaacs J said) - "It creates [the tenures], shapes them, states their characteristics, fixes the mutual obligation of the Crown and the [grantee], and provides for the mode in which they shall cease to exist." (at 196) v The reasoning in O'Keefe v Williams and McPherson is noticed. It is "unhelpful" to ask whether the statute is a "code" and, if not, to conclude that a pastoral lease has the same incidents as a common law lease. Rather, like native title itself, the interests created by these statutes "take their place in the general legal order … ." However, in so doing, "the legal system takes those interests as they are found in the statute" (at 197 - 198). v An analysis of the provisions of the 1910 Act supports four propositions in respect of the Mitchellton leases: (1) there is apparent the mixing together or combination in the statutory regime for pastoral leases and occupation licences of elements which in an analysis under the common law of leases and licences would be distinct; (2) the terms of the 1910 Act providing for pastoral leases were apt to identify the characteristics and incidents of that statutory interest; (3) those characteristics were not such as to approximate what under a lease as understood at general law may have been a right to exclude as trespassers persons exercising rights attached to their subsisting native title; and (4) the contrary conclusion, that native title holders were rendered trespassers as a consequence of rights given by pastoral leases, would be at odds with the interpretation of the phrase "unlawful occupation" which is to be given its use in s 204 of the 1910 Act (at 201). v In relation to the first proposition, a lease in perpetuity is the creation of a statutory title which is sui generis (at 201 (footnote 750)). v With respect to the Holroyd leases and the 1962 Act, despite some differences between the two statutory regimes, and subject to one qualification, the same conclusions apply to the Holroyd leases as those reached with respect to the Mitchellton leases. In none of these instances was there clear, plain and distinct authorisation, by the relevant grant, of acts necessarily inconsistent with all species of native title which might have existed. It does not appear that the statutory interests could be enjoyed only with the full abrogation of any such native title (at 202 - 203). v The qualification is that the later, but not the earlier grants were subject to conditions requiring improvements to the land. It may be that the enjoyment of some, or all, native title rights with respect to particular portions of the 2,830 square kilometres of the Holroyd leases, would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title (at 203).

[28]

The reasoning of Kirby J 243 His Honour's process of reasoning was as follows: q For the purposes of comparison, the Court had been taken to colonial practice and legislation as well as the modern statutes affecting pastoral leases in the States of Australia and in the Northern Territory; and all of the States (except New South Wales and Tasmania) and the Northern Territory had intervened (at 209). However - "[t]his 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." (at 250) q The history of the emergence of pastoral leases in New South Wales and Queensland is analysed, including Earl Grey's 1848 despatch (at 226 - 229). q The picture painted of the two pastoral leasehold properties in question is "somewhat bleak". Each, 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. 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 by the lessee) 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'" (at 232). q The position at Holroyd River "was not so extreme a case", yet "it seems a reasonable inference that traditional Aboriginal life would have been little disturbed" by the grant of the lease in "such a large remote terrain" (at 232). q "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" (at 233). q "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 extinguish 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" (at 242 - 243). q "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" (at 244). q The use of the words "lease", "demise", "rent" and "assigns" is insufficient to import all of the features of a common law lease. In O'Keefe v Malone 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 (at 245). q "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" (at 245). q Moreover (as has been noted, citing McPherson) "[t]he lessee would be entitled to seek relief in equity in certain circumstances as under a private lease. 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" (at 245). q "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" (at 245).

[35]

(a) The use of early colonial history 246 It is true that each of Toohey, Gaudron and Kirby JJ referred at some length to the early colonial history. In particular, as we have seen, each apparently placed considerable emphasis upon the views expressed by Earl Grey in his despatches in the late 1840s. But the postscript to Toohey J's judgment makes no reference to this early history as a decisive consideration. On the contrary, as noted above, the postscript states (at 132) that the lessees' rights and obligations "depend upon the terms of the … lease and upon the statute which authorised it". This is quite consistent with the earlier observations of Toohey J in this connection (at 120, cited above). It will be recalled that there, after describing the early colonial history and quoting Earl Grey's despatches, his Honour made it clear that it is the operation of the statute, to be discerned from its provisions, rather than the bureaucrat's "state of mind", that is material for present purposes. 247 Moreover, Gummow J, in the passage (at 184) quoted above, referred to the "possibility of injustice to the many, varied and complex interests involved across Australia as a whole" if an attempt were to be made to "extrapolat[e] to an assumed generality of Australian conditions and history from the particular circumstances of [Wik]". 248 I respectfully agree. As contemporary lawyers addressing a current legal problem, we should bear in mind, as Sir Victor Windeyer has reminded us, that: "… the common law … is a body of dynamic doctrine … [and its] study … is a study of a process of evolution… . It combines stability and continuity with an inherent capacity to change and be changed - gradually by courts, rapidly by any sovereign legislature for its own domain." and: "A present-day lawyer, whether counsel or a judge, who has a present question to resolve is concerned to go back into the past only to come forward to the present - to understand the law of the present by seeing it as a continuation of, or departure from, that which formerly prevailed". 249 (Sir Victor Windeyer, History in Law and Law in History, (1973) (11)(1) Alberta Law Review 123 at 125; 126; and see also W M C Gummow, Change and Continuity; Statute, Equity and Federalism (Clarendon Law Lectures, Oxford University Press, 1999) at xvii.) 250 On behalf of Mr Wilson, a valiant attempt was made in argument in the present case to invite this Court to revisit, and review, some of the history described by Toohey, Gaudron and Kirby JJ in Wik. This aspect is more fully dealt with in the Appendix to these reasons. For immediate purposes, it suffices to say that this historical "issue" is beset with its own immense complexities. If, contrary to my understanding, historical considerations had, in truth, formed part of the ratio of those members of the majority in Wik, it would have been necessary for us to address these multi-disciplinary questions. But, we have not had the benefit of expert evidence or full arguments from both sides on these questions. In the circumstances, in my view, it is not appropriate that we pursue them further. 251 This is not, however, to say that in the interpretation of this legislative scheme, regard cannot be had, as part of the immediate "context", to the material in the 1901 Parliamentary Report and the Second Reading speeches, in interpreting the WLA including its 1934 amendments. On any view, they are a legitimate resource in the process of statutory interpretation (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 99 and 112 - 113). I mention this material below. But the point is that, once it is accepted, as I think, that the interpretation to be placed upon the early colonial history did not form an essential part of the majority reasoning in Wik, we need not embark upon the complex undertaking of endeavouring to relate that early historical material to twentieth century legislation in the form of the WLA.

[36]

(b) The significance of the vast size and remote location of the lands leased in Wik 252 Again, it is true that Toohey, Gaudron and Kirby JJ referred to these factors. Kirby J (at 233 in the passage quoted above) described them as "context" of such significance that, if a conclusion of "exclusive possession" were to be drawn, "… it would require very clear law to drive me to such an apparently unrealistic conclusion". Despite this, upon analysis, it does not seem that degrees of size, or of remoteness, were part of the ratio. Being dependent upon matters of degree, rather than of kind, it is not to be expected that such matters could translate easily into a known legal principle. More importantly, these aspects were not incorporated into the postscript, which, as Toohey J explained, was intended to illuminate the process of reasoning of the majority in answering the questions. 253 The difficulties in attempting to incorporate factors such as these into legal doctrine are well illustrated in the present case. By suburban standards, an area of 10,000 acres is immense. But judged by the standards of the zone in question, as recognised by the statute itself, it is no more than the minimum area required to make a living for a single family. The significance of this and the need to place the size of these areas in realistic perspective, are made clear by the material previously referred to, the 1901 Parliamentary report, and the Second Reading speeches in 1901 and 1934. This material was confirmed by the provisions of the statute and by the terms of the lease, limiting the purposes for which the land may be used, requiring bona fide residence on the lands leased, and contemplating a holding of the size of a home maintenance area. Moreover, the remoteness described in Wik is to be contrasted with the detailed requirements prescribed by the WLA, its regulations and the lease obliging the lessee to undertake upon the lands leased a whole range of activities. 254 These considerations reinforce the point that, for legal purposes, we should not attempt to assess, even if it were practicable, relativities of size and remoteness as decisive considerations in the present context.

[38]

(a) Possession issues - the lessee's rights 256 As I followed the arguments before us, it was not, and could not be, seriously in dispute that the lessee had a right to possession for grazing and for the incidental purposes of the kind described by Toohey J in Wik (at 114, see para 84). That is to say, the provisions of the legislative scheme, and of the lease itself, to the effect that the lessee is to use the lands for a particular purpose, must carry with them, by necessary implication, the intention of the Parliament and the Executive that the lessee have such possession of the area which is needed to achieve that purpose. Moreover, that a possessory or proprietary right was intended by the Parliament and the Executive to be granted is indicated by other express provisions of the legislative scheme and of the lease. The residence requirement, the fencing obligations, the requisite home maintenance area, the elaborate provisions dealing with the transfer or mortgage of a WLA lease and its devolution upon death, together with the detailed provisions with respect to improvements previously described, illustrate and confirm this. These provisions are more consistent with an intention to create a more permanent, possessory title than the merely personal, ephemeral relationship which is found in, for example, a bare licence. 257 The real issue here is whether that possession was "exclusive". On any view, to use Toohey J's words, the answer to this question must be accepted to be a complex question of law and fact. 258 The decision and the reasoning in McPherson stand for the proposition that, for the purposes of the availability of relief against forfeiture, the lessee should be treated as having exclusive possession: that is, in the sense that, in this context, a WLA lease in perpetuity is to be regarded as relevantly the same as, or equivalent to, a common law lease. But in the light of Wik, the reasoning in McPherson must, I think, now be read as directed only to its context, i.e. forfeiture. The ratio in McPherson did not encompass any claim of native title, which was not in issue there. In other words, we should not interpret McPherson as deciding that the right to possession under a WLA lease carried with it the right to exclude Aboriginals: that question was simply not there an issue. This is not to cast any doubt at all upon the decision in McPherson. There is nothing in the statutory scheme (relevantly described at paras 23 - 48 above), or in the High Court decision in Hawkins or in Wik, which detract from what McPherson actually decided. As I have said, I respectfully agree with what it decided, and with the reasons given by each member of the Court of Appeal for the decision. 259 But, at all events, a WLA lease could never be regarded as conferring a legal right to "exclusive" possession in any literal, absolute, unconditional or universal sense, even if the relative status of native title rights are put to one side for the moment; that is to say, the lessee's right to possession was already expressly qualified or conditional in several respects, whatever the position would be vis-ŕ-vis native title interests. One qualification has already been mentioned, namely the existence of the requisite purpose, viz. grazing. The lessee had no right to use the land for any activity not incidental to grazing. Other express conditions or qualifications clearly limit the lessee's possessory title. As has been seen, Toohey J in Wik (at 122) observed that the lessee in Wik was granted, by the statute, possession for pastoral purposes, that is, such possession as was required for the occupation of the land for those purposes. But his Honour went on to note the reservation of rights of entry, to which the lessee's right to possession must yield. Likewise, Kirby J in Wik at 245, in the passage cited above, observed that the lessee would be entitled (but with exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment. The same comments can be made of the explicit exceptions and reservations in the present case. 260 As has been seen, the Lease itself is expressed to be subject to the following additional qualifications upon the lessee's right to possession: · The reservation of minerals etc. · The reservation of the State's right to proclaim Roads, Travelling Stock, Camping or other Reserves and to withdraw land for these purposes without compensation. · The reservation of the State's power to resume land for mining, townships or public purposes. · The lessee's obligations (a) to permit authorised persons to enter and search for, remove etc. minerals etc. (condition 16); and (b) to permit the Minister for Conservation, or any person acting on his behalf, to enter for the purposes of survey or investigation in connection with soil conservation etc. (condition 22). 261 These qualifications upon the lessee's right to possession are clearly within power, being specifically mentioned, as has been seen, in paras (k), (l), (m), (p) and (o) of Schedule A to the WLA. 262 In addition, as noted above, s 44(1) of the WLA confers upon the Governor the power to withdraw leased lands for settlement purposes. 263 As has also been noticed, further qualifications are imposed by the Regulations, i.e. the Commissioner's power to cause inspections (reg 79); and the power of an authorised person to enter and to open and remove fences (reg 80). 264 Again, as I followed the arguments before us, the existence of these qualifications upon the lessee's right to possession was not, and could not be, seriously in dispute. But in my opinion, no useful purpose could be served here by answering the separate questions by first referring to the existence of the lessee's right to possession, and then attempting (especially at this early stage of the principal proceedings) an exhaustive catalogue of the numerous express exceptions and reservations, some mentioned above, and which could not be in serious contention. Rather, as has been said, the real question here, and the aspect that the Court should now address, is whether the lessee had the right to exclude those claiming native title rights. And, as Toohey J noted in Wik (at 131), the questions framed by reference to exclusive possession "tend to obscure what is the critical question, that of extinguishment" (i.e. the present question (c), which I will next address). 265 In these circumstances, before proceeding to questions (a) or (c), I would answer question (b) as follows: "The Lease confers upon the lessee a right to the possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings." 266 In these circumstances, I need not answer question (a).

[39]

(b) Extinguishment issues - native title holders rights 267 It follows that, as in Wik, this (question (c)) is the central question here. 268 In Commonwealth of Australia v Yarmirr (1999) 168 ALR 426 (at 436 - 439), and in State of Western Australia v Ward [2000] FCA 191 (at pars 55 - 120) von Doussa J and I referred to the High Court decisions which have explained authoritatively the general concept of extinguishment, including partial extinguishment. 269 In addressing question (c), it is pertinent to note that Toohey J's postscript in Wik contemplates (1) an inquiry whether inconsistency exists between (a) the rights and interests conferred by native title and (b) the rights conferred by the statutory grants of the leases; and (2) if so, an identification of the extent of the inconsistency, because if inconsistency is held to exist, the native title rights and interests will "yield" (i.e. will be extinguished) to that extent. For our purposes, this statement of principle is, in my view, authoritative and squarely in point. Accordingly, it should, in my opinion, be applied here. 270 I propose to answer question (c) accordingly, and to add, for the reasons which now follow, that it is not appropriate to answer this question further in respect of extinguishment, or suspension, at this stage of the proceeding. 271 In answering the questions in Wik, Toohey J said (at 131): "The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights." 272 Gummow J also noted (at 169, 204) that it was significant that, in Wik, there had not then been a trial of the facts, so that the range and scope of the incidents of any native title rights that might be found to exist were not then known. 273 And more recently in Yanner v Eaton (1998) 166 ALR 258 Callinan J, expressing a similar sentiment, said (at 300): "In this case there was evidence which was uncontradicted and uncontested, relevantly directed to the rights, traditions, customs and practices of the Aboriginal group of which the appellant was a member, and findings of them by the magistrate of sufficient particularity to enable, indeed to compel, the carrying out of the exercise which the majority in Wik was unable to carry out in order to decide whether the leases extinguished wholly or partially any of the native title rights claimed." 274 In the present forensic circumstances, which are similar to those before the High Court in Wik, it is not now appropriate to pursue the operation, if any, of the doctrines of extinguishment or "suspension", beyond making the general answer mentioned in response to the generally expressed question asked. 275 I would therefore answer question (c) thus: "The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the lessee. It is not appropriate to answer this question further at this stage of the principal proceedings."

[42]

APPENDIX ASPECTS OF EARLY COLONIAL LAND LAW HISTORY CONSIDERED IN WIK 280 In their arguments in the High Court in Wik, counsel on both sides of the record referred to aspects of the history of the legislative treatment of Aboriginals by the State. 281 Counsel for the Wik Peoples referred (at 9) to "the reality" of continued occupation by traditional occupants, the knowledge of such occupation by the State and pastoralists and the history of pastoral leases. Counsel submitted that this also "accords with" the history of the legislative treatment of Aboriginals by the State, and argued that pastoralists never in fact had possession exclusive of traditional occupants. 282 Counsel cited a passage in the reasons of Lee J in North Ganalanja Aboriginal Corporation v State of Queensland (Re Waanyi) (1995) 61 FCR 1 at 23 - 24. There, Lee J, noting that a "vast" area of Crown land unsuitable for close settlement, or enclosure, is permitted by the Crown for pastoral purposes, said (at 23 - 24): "On the face of those facts it is arguable that the interests created by the Crown as pastoral leases - a course necessitated by the need to regulate the practice of settlers of 'squatting' on unalienated Crown Land - were intended to be used, or enjoyed, in coexistence with indigenous title and that the granting of pastoral leases over such areas did not carry with it an intent by the Crown to extinguish native title: see S H Roberts, History of Australian Land Settlement 1788-1920, Macmillan (1968), p 166 et seq: 'The Tracks of the Squatters'; Ch 15: 'The Squatters and the Government'. In so far as assistance is to be gained from the consideration of history of the use of the waste lands of the Crown for pastoral purposes it may be said that the historical records suggest at the outset an absence of Crown intention to exclude customary rights of access of Aboriginals to that land, or to extinguish native title: see Orders-in-Council, 9 March 1847 proclaimed 7 October 1847, 18 July 1849 proclaimed 23 April 1850; Dispatch No 24: Secretary of State, Earl Grey, to Governor of New South Wales Sir Charles FitzRoy, 11 February 1848 Historical Records of Australia Series 1, Vol 26, p 226; Dispatch No 134: Earl Grey to Sir Charles FitzRoy, 6 August 1849; Dispatches to the Governor, Mitchell Library, MSA 1308." 283 Stephen Roberts, in his work cited by Lee J, described (in Ch 15) the history of the relationship between the squatters and the NSW Government in the period 1828 - 1841. In Wik, Kirby J (at 226) cited Roberts at 179 as authority for the proposition that in the late 1820's squatters took possession of land, unoccupied by other squatters, without right or title. Roberts referred (at 186) to the "famous" Order-in-Council of March 1847 as embodying a desire "to give encouragement to those engaged in pastoral pursuits". Robert said (at 187) that the squatters thereby "received the … privileges for which they had fought; they had acquired rights in the land; the Order-in-Council was the anchor of their rights". But, according to Roberts, this led to "a struggle between squatters and people, to the formation of the impasse which was shattered only when free selection was achieved in 1861" (at 187). 284 The Solicitor-General for Queensland (at 34 - 35) advanced a detailed historical argument disputing the contentions of the Wik Peoples in this connection. The Solicitor referred (at 35) to a report provided to Earl Grey in 1847, and subsequent events, as follows: "In March 1847, an Imperial Order in Council, comprising regulations to the 1846 Act, authorised the Governor to grant pastoral leases and gave existing licensees a right to demand leases of their runs. In May 1847, Governor FitzRoy sent Secretary of State Earl Grey a report from an Assistant Protector of Aborigines recommending that suitable reserves be immediately formed for the benefit of the Aboriginals, because unless that were done, the granting of leases of Crown lands would deprive them of any right to hunt over their native land. Earl Grey replied that his view was that leases granted for the purpose of pastoral occupation gave only limited rights which did not deprive natives of rights to hunt etc. Recognising that his view might not be shared in New South Wales, he suggested that the limitation on the right of exclusive occupation granted by Crown leases be enforced by public declaration or declaratory Act. The local law officers advised that a pastoral lease did confer exclusive possession free of Aboriginal rights of access. That view was accepted by legal advisers to the Colonial Office." 285 The Solicitor then (at 35) described some of the subsequent history as follows: "An Imperial Order in Council of July 1849 made from a draft prepared by them was forwarded to the Governor with a despatch which shows that Earl Grey had by then accepted that, in the absence of express condition enabling Aboriginal access, a pastoral lease in New South Wales conferred exclusive possession against all others, including Aboriginals, of the land demised. He never sought to give a binding direction to the Governor to include Aboriginal access conditions in pastoral leases. The Order in Council only empowered the Governor in his discretion to include a condition in future pastoral leases. No binding requirement was ever sought to be imposed that an access condition be included. A clause permitting Aboriginal access was inserted in some early Queensland pastoral leases but it was never required by statute. It was a matter for the Governor's discretion." 286 In his historical survey of pastoral leases, Toohey J (at 108 - 111) traced the developments in this area from the use of the Royal Prerogative to grant lands at the establishment of the colonies to the subsequent need for statutory regulation, leading to the enactment of the Sale of Waste Lands Act 1842 (Imp) and the subsequent surrender by the English authorities of control over Crown lands to the local legislature by the New South Wales Constitution Act 1855 (Imp). His Honour's description (at 111) of the story of the relationship between the Crown and those who wished to take up land has been summarised earlier in my reasons. 287 Toohey J next (at 110) explained the situation in what later became the State of Queensland, noting that pursuant to the provisions of the Crown Lands Unauthorised Occupation Acts 1839-1841 (NSW), a Commissioner of Crown Lands was appointed for the Moreton Bay District. His Honour noted (at 119) that in transmitting this Act to the Secretary of State in 1839, Governor Gipps stated that one of its aims was "[to put] a stop to the atrocities which have been committed both on them [the natives] and by them". Toohey J said that "[t]he whole tenor of these provisions indicates a contemplation that Aborigines would be upon licensed lands". 288 As has been noted, Toohey J next turned to the despatches by Earl Grey as Secretary of State to Governor FitzRoy in 1848 and 1849. His Honour said (at 119): "The thrust of contemporary documents, in particular communications by the Secretary of State, Earl Grey, to the Governor of New South Wales make it clear that Aborigines were not to be excluded from land under pastoral occupation." 289 Gaudron J (at 141) and Kirby J (at 227) also referred to Earl Grey's despatches at this time and arrived at similar conclusions. 290 There can be no doubt that the writings of Dr Fry and those of Professor Henry Reynolds were influential in the reasoning of the majority in Wik. Toohey J said (at 108) that in his historical survey he was indebted to the monograph by Professor Reynolds and James Dalziel, "Aborigines, Pastoral Leases - Imperial and Colonial Policy 1826 - 1855", (1996) 19(2) UNSWLJ 315. In his judgment in Wik, Kirby J (at 226) cited an essay by Reynolds, "Native Title and Pastoral Leases" in M Stephenson and S Ratnalpala (eds), Mabo: A Judicial Revolution, (University of Queensland Press, 1993). He also cited (at 230) an earlier work by Reynolds, Dispossession Black Australian and White Invaders (Allen & Unwin, 1989). Reynolds and Dalziel's thesis was that by the end of the 1850s, colonial land policies aimed, inter alia, to ensure that Aborigines would not be prevented from having continued access to the pastoral lands of the colony as long as those lands were used for pastoral purposes (at 315). 291 As has been noted, the Solicitor-General for Queensland had argued in Wik (at 35) that the Order in Council of July 1849 was forwarded with a despatch that shows that Grey by then accepted that, absent an express condition, a pastoral lease conferred exclusive possession against all others, including Aboriginals. 292 However, Reynolds and Dalziel see the matter differently. They say (at 366): "K. Effect of the Order in Council The history of the 1849 Order in Council underlines two key differences between a lease for pastoral purposes and other forms of lease. Firstly, it was a lease for a specific purpose which had been created pursuant to statute. Secondly, the location, area and non-intensive use of lands to be leased for pastoral purposes distinguished 'pastoral leases' from leases for other purposes, of land elsewhere in the colony. Earl Grey acknowledged this when he pointed out that leases conferred only an exclusive right of pasturage and of 'cultivating such land as they may require within the large limits thus assigned to them' and were 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. (emphasis added) Although the Order in Council did not specifically refer to Aboriginal rights over pastoral leases, its meaning was nevertheless clear. During the 1830s, the need to take steps to ensure the 'peaceable and effectual occupation' of pastoral lands had been a concern to the Imperial and colonial governments." 293 The authors (at 367) give examples of leases granted in New South Wales and Queensland in the 1860s and 1870s and later which contained conditions reserving to the "Aboriginal Inhabitants of the Colony" such "access … as will enable them to procure the Animals, Birds, Fish and other food on which they subsist". 294 Reynolds and Dalziel describe the exchanges in 1849 as follows (at 368): "Although the Permanent Under Secretary of the Colonial Office, Herman Merivale, thought that the Order in Council 'will be found to answer the purpose, as to future leases' the wording nevertheless concerned Parliamentary Under Secretary of State, Benjamin Hawes. In a Minute on the letter from the Colonial Land and Emigration Office enclosing the draft Order in Council he noted, the 'nature and extent of the access of the natives must surely be defined - or far more serious collisions may arise'. Earl Grey noted that the Order in Council would 'be sufficient with the suggested explanatory despatch'. It has been proposed that this remark suggests that Grey had had a change of heart or that he 'refused to declare that the native rights deserved respect'. The explanatory despatch reaffirms Grey's earlier views but clearly, he had accepted the approach recommended by Murdoch and Rogers and appreciated the practical difficulties they had encountered in drafting an instrument that would at once address concerns regarding the Aborigines but also other inconveniences to the public which it was anticipated would arise from the granting of leases. Grey may well have considered the reaction of the squatters. In any event, a general declaration of the rights conferred by leases had been rejected because it was thought that some leases might already have been granted. A similar declaration with respect to the Aborigines would no doubt have faced the same objection. On the other hand, within the constraints of the 1846 Act and 1847 Order in Council, the 1849 instrument gave the Governor the authority to insert conditions in leases and this after all was what FitzRoy had requested." (Footnotes omitted) 295 Reynolds and Dalziel say (at 372): "Grey felt that the management of colonial waste lands was properly a responsibility of the Imperial Government and that the protection of the Aborigines was a subject not just of concern 'to the colony but to the nation' as a whole. His reluctance to agree to the transfer of control over the management of these lands to colonial legislatures can be attributed to several factors, including it would seem, an unwillingness to let the colonists exercise an unfettered power over what happened to the Aborigines." (Footnotes omitted) 296 The authors cite, in this connection, J M Ward, Colonial Self-Government. The British Experience 1759 - 1856, (Macmillan, 1976), esp. at p 328. There Ward said (of Grey): "His successors, no less confident than he of the great destiny and fundamental good sense of large British communities overseas, were less trammelled by hopes of a uniform commercial policy for the whole empire and, it must be admitted, less scrupulous than he in their concern for indigenous peoples, who might be oppressed if European settlers were left to rule mixed populations without close imperial supervision." 297 Another scholar, Dr Jonathan Fulcher disagrees and criticises, inter alia, the omission of a significant part of the quotation from Hawes. Fulcher says in his article "Sui Generis History? The Use of History in Wik" in G Hiley (ed), The Wik Case: Issues and Implications (Butterworths, 1997) (at 55 - 56): "On the document of 17 April 1849 from Murdoch and Rogers to Earl Grey, Benjamin Hawes made a rare marginal notation. Reynolds and Dalziel merely refer to Hawes' comment that the: 'nature and extent of the access of the natives must surely be defined - or far more serious collisions may arise …' [p 111]. However they leave out a critical piece of Hawes very brief note. After 'arise' Hawes wrote: '… than now that they can be restrained.' He sought greater definition of how exactly this reservation would work in practice. Hawes was suggesting that leases enabled Aboriginal people to be excluded and this would prevent clashes. Frontier violence was a matter of constant concern to Colonial Office officials, and Hawes could see benefits in leasing land, thereby legally excluding Aboriginal people and so keeping settlers and Aborigines apart. Hawes clearly believed that leases had this legal effect, or he would not have used the word 'restrained'." 298 The scholarly debate remains unresolved. (For an analysis of Earl Grey's role in colonial affairs, see J M Ward, above; and see also H Reynolds, Why Weren't We Told (Viking, 1999) pp 210 - 215.) Plainly, this litigation is not the appropriate forum for its resolution, particularly in the absence of expert historical evidence. 299 In any event, as Ernest Scott observed in his introduction (at xi) to Stephen Robert's History of Australian Land Settlement (1788 - 1920): "Nobody can ever claim finality for historical work, nor should desire to do so; …." 300 And see also F B Wiener, Uses and Abuses of Legal History: A Practitioner's View, (Selden Society, 1962) at 9. I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Parties

Applicant/Plaintiff:

Anderson

Respondent/Defendant:

Wilson

Legislation Cited (17)

Native Title Act 1993(Cth)

Native Title (New South Wales) Act 1994(NSW)

Federal Court of Australia Act 1976(Cth)

Racial Discrimination Act 1975(Cth)

Western Lands Act 1901(NSW)

Land Act 1910(Qld)

(Crown Lands Unauthorized Occupation Act 1836(NSW)

Crown Lands Unauthorized Occupation Act 1841(NSW)

Crown Lands Alienation Act 1861(NSW)

Crown Lands Act 1884(NSW)

(Crown Lands Act 1889(NSW)

(Crown Lands Act 1895(NSW)

Land Act 1962(Qld)

Crown Lands Consolidation Act 1913(NSW)

Public Roads Act 1902(NSW)

War Service Land Settlement Act 1941(NSW)

Mining on Private Land Act 1909(Qld)

Cases Cited (29)

Significance Of The Legislation For The Questions 21 The parties differed as to the significance of the legislative scheme contained in the NTA. Mr Sullivan founded the submissions on behalf of the Lessee on general law principles governing the extinguishment of native title. According to Mr Sullivan, the Lease granted in 1955 conferred exclusive possession on the Lessee's predecessor in title. It followed that, in accordance with the principles formulated and applied by the High Court in Wik and Fejo v Northern Territory (1998) 195 CLR 96, any native title rights in the leasehold area had been extinguished. There was simply no occasion to have recourse to the provisions of the NTA or the NTA (NSW). Native title rights in the Leased Land had been extinguished long before the NTA had come into force. 22 Mr Sullivan pointed out that the NTA contemplated that extinguishment of native title could take place otherwise than under the Act itself. Section 23J(1), for example, entitles native title holders to compensation in accordance with Div 5 of Part 2 for any extinguishment under Div 2B of their native title rights and interests, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under the NTA. Mr Sullivan contended that the explicit statutory recognition that native title could be extinguished under the general law meant that the separate questions could be answered without any need to consider the operation of Div 2B of Part 2 of the NTA. 23 Mr Basten QC, who appeared with Mr Blowes for the third respondent ("the Council"), submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA. He accepted that the NTA did not constitute a code in relation to extinguishment. Nonetheless he argued that the legislation was "intended to provide a comprehensive statement of as many circumstances which might involve extinguishing acts as possible, and to provide for their legal effects." 24 Mr Basten appeared to accept that under both the statutory scheme and the common law, the question was whether the Lease conferred a right of exclusive possession over the land. He also appeared to accept that this question was to be answered by reference to common law principles. Thus, on his submissions, the application of the NTA (and the NTA (NSW))did not have any significant practical consequences, other than that the questions for determination should have explicitly referred to the legislation and, in particular, to the statutory concept of a "previous exclusive possession act". 25 In our view it is clearly correct, as Mr Sullivan submitted, that the NTA contemplates that native title rights in respect of particular land might have been extinguished prior to the commencement of the legislation, independently of the regime established by Part 2, Div 2B of the NTA. In the Native Title Act Case (Western Australia v The Commonwealth (1995) 183 CLR 373) the joint judgment observed (at 454) that an act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the NTA. While that observation was made before the enactment of Div 2B of Part 2, it remains true: Western Australia v Ward [2000] FCA 191, at [77]. Indeed, native title over much of the settled land mass of Australia has been extinguished in this manner. Thus the ultimate issue to be resolved in these proceedings is whether any native title rights that might exist in respect of the Leased Land were extinguished by the grant of the Lease in 1955. The resolution of this issue depends on the application of general law principles of extinguishment of native title. 26 The separate questions do not explicitly state whether the question of extinguishment in the present case is to be addressed by reference to the general law principles expounded in Mabo v Queensland (No 2) (1992) 175 CLR 1, Wik and Fejo, or to the statutory concept of "previous exclusive possession act", or both. To this extent it may be said that the questions are ambiguous. However, an ambiguity of this kind does not present an obstacle to the Court addressing the core issue raised by the parties. It was common ground that the Lessee's case had to stand or fall on the general law principles governing extinguishment of native title. While Mr Sullivan adverted to the possibility that the Lessee might be able to rely, as an alternative argument, on the confirmation of extinguishment of title effected by the NTA, he did not suggest that the statutory criteria for extinguishment were any different, for the purposes of this case, from the general law criteria. Certainly, the argument focussed exclusively on the general law principles of extinguishment. 27 There is no occasion in this case to consider the precise relationship between the rules embodied in the NTA governing "confirmation of past extinguishment of native title" and the general law principles of extinguishment of native title. It is enough to note that, despite the terminology employed in Part 2, Div 2B of the NTA, the effect of Div 2B is not necessarily simply to confirm instances of extinguishment of native title that have already taken place under the general law. For example, it is possible that some of the leases, or classes of leases, specified in Schedule 1 to the NTA (all of which, by virtue of s 23B(2), constitute "previous exclusive possession acts") would be found, on general law principles, not to have completely extinguished native title. If that is so, the inclusion of these leases in Schedule 1 simply reflects the fact that Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts. (Compare the effect of the recital to the preamble to the NTA which was said in Wik to have read too much into the judgments in Mabo [No 2]: Wik, at 125, per Toohey J.)

Cited By (3)

District Council of Streaky Bay v Wilson

National Mutual Life Association of Australasia Ltd v Campbell

Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales

Form Of The Questions 28 The identification of separate questions for determination pursuant to O 29 r 2 of the Federal Court Rules, can be a convenient procedure, and, in some circumstances, can avoid unnecessary delay and expense in the resolution of proceedings. But there are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations. 29 The reason for formulating questions for separate determination in the present case was explained by Mr Sullivan at a directions hearing. At that hearing, the Judge managing the proceedings (Beaumont J) drew to the attention of the parties observations made by Gummow J in Yanner v Eaton (1999) 166 ALR 258, concerning the importance of factual findings in native title claims. Gummow J said this (at 288-289): "Before turning to whether inconsistency arose in the present appeal, it is important to clarify the utility of factual findings. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it." 30 Beaumont J invited the parties to reconsider the procedure adopted in the present case in view of these comments. 31 At the directions hearing, Mr Sullivan acknowledged the force of the observations of Gummow J in Yanner, but justified the separate question procedure as a "short cut" designed, depending on the outcome, "to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry". He pointed out that the questions in this case had been framed having regard to the procedure followed in Wik. In that case, the High Court answered questions asked in relation to the effect of the so-called Holroyd River and Mitchellton Leases on the native title rights of the Wik and Thayorre Peoples. 32 It is true that the questions in the present case follow reasonably closely the form of the questions asked and answered in Wik. Questions (a) and (b), for example, ask whether the Lease conferred a "right to exclusive possession of the leased land". These questions are very similar in form to two of the questions (Questions 1B(b) and 1C(b)) asked in Wik. 33 Question 1B(b) in Wik was as follows: "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): … (c) does the pastoral lease confer rights to exclusive possession on the grantee?" 34 The majority answered this question (and the equivalent in relation to the Mitchellton Leases): "No": see Wik, at 261-262. 35 Question (c) in the present case is asked on the assumption that an affirmative answer is given to either question (a) or (b). It asks, inter alia, whether any native title rights were extinguished upon the grant of the Lease. This question is similar to Questions 1B(d) and 1C(d) in Wik, which asked whether, on certain assumptions, the grant of the various pastoral leases "necessarily extinguish all incidents of Aboriginal title or possessory title of the [Aboriginal] Peoples in respect of the land demised…?" 36 The majority in Wik answered the questions in this form: "Strictly does not arise, but is properly answered No": see Wik, at 261-263. 37 Despite the similarity of the questions in the present case to those in Wik, it is important to appreciate the difficulties created by the procedure that has been adopted. In Wik itself, some members of the majority expressed reservations about the procedure the Court was asked to follow. Toohey J saw (at 116) "the basic question [as] whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished." 38 His Honour (at 131) went on to criticise the questions that had been asked: "[The questions] are not happily framed, with their emphasis on whether the grant of each pastoral lease 'necessarily' extinguished 'all incidents of Aboriginal title' of the Wik Peoples and the Thayorre People, an aspect that only arises if in each case the pastoral lease conferred 'rights to exclusive possession on the grantee'. The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights…. Indeed, the questions framed by reference to 'exclusive possession' tend to obscure what is the critical question, that of extinguishment. Nevertheless, the questions should be answered as best they can." 39 Gummow J expressed the view (at 204) that Questions 1B(b) and 1C(b), by focussing on whether the pastoral leases conferred rights to exclusive possession, "may have distorted the essential issues". His Honour considered that Questions 1B(d) and 1C(d), relating to extinguishment of native title, "should have stood independently for decision". Nonetheless he, too, was prepared to join in answering the questions that had been asked. See also the comments of Kirby J, at 212-213. 40 The procedure adopted in the present case presents difficulties similar to those identified in Wik. 41 First, no findings have as yet been made concerning the content of native title that may exist in respect of the Leased Land. It must be remembered that native title has its origins in the traditional laws and customs observed by indigenous people: Mabo (No 2), at 58, per Brennan J. Native title is recognised by the common law but is neither an institution of the common law nor a form of common law tenure: Fejo, at 128. Consequently, as Gummow J said in Wik, the nature and incidents of native title will vary from case to case (at 169): "It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence." (Footnotes omitted.) 42 In the Croker Island Case (The Commonwealth v Yarmirr (1999) 168 ALR 426 (FC)), Beaumont and von Doussa JJ observed, at 435, that native title is "highly fact specific": that is, the existence and content of native title are questions of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis. It follows in the present proceedings that an affirmative answer to question (c)(i), which would effectively resolve the proceedings in favour of the Lessee, cannot be given unless all possible native title rights in respect of the Leased Land were extinguished by the grant of the Lease. As Wik demonstrates, this may prove to be a heavy burden for the Lessee to discharge in the absence of evidence as to the content of native title or an act manifestly inconsistent with all native title rights, such as the grant of a fee simple estate. 43 Secondly, as explained by Toohey and Gummow JJ in Wik, questions framed by reference to rights of exclusive possession are apt to divert attention from the critical question. That question, to adopt the language of the joint judgment in Fejo (at 126) is whether "the rights that are given [by the Lease] are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title." 44 It is understandable that the separate questions should have been drafted so as to ask whether the Lease conferred a right to exclusive possession on the Lessee's predecessor in title. The language of exclusive possession is found in Mabo (No 2): at 110, per Deane and Gaudron JJ. Moreover, the questions in Wik were framed by reference to "rights to exclusive possession". Perhaps for this reason, despite the express reservations of Toohey and Gummow JJ and despite the ambiguity inherent in the concept, much of the reasoning in Wik uses the terminology of "exclusive possession". And Parliament has followed suit, incorporating "exclusive possession" into the definitions giving content to the expression "previous exclusive possession act" in s 23B of the NTA. Even so, for the reasons given by Toohey and Gummow JJ, there are dangers in elevating the question whether the Lease conferred a right to exclusive possession into an issue requiring separate determination. 45 Under the general law, a legal right of exclusive possession connotes a tenancy and is secured by the lessee's right to maintain ejectment and, after entry, trespass: Radaich v Smith (1959) 101 CLR 209, at 222, per Windeyer J; Street v Mountfort [1985] AC 809, at 827, per Lord Templeman. But it is not necessarily easy or appropriate to apply a concept developed for one purpose (that is, distinguishing between a lease and a licence, usually in the context of commercial disputes) for quite a different purpose (determining whether the rights conferred on the holder of a statutory lease are inconsistent with the continued entitlement of Aboriginal people to native title rights). Particularly is this so when it is remembered that the common law accepts the idea of relative claims to possession, or relativity of titles: Asher v Whitlock (1865) 1 QB 1; Allen v Roughly (1955) 94 CLR 98; Mabo (No 2), at 207-211, per Toohey J. Under the general law, a person in possession of land can maintain an action against third parties, other than a person having a superior title. In short, exclusive possession of land does not necessarily connote rights good against all the world. It follows that to say a person has rights to exclusive possession does not necessarily demonstrate that that person is able to exclude all third parties from access to his or her land. 46 Thirdly, as Mr Basten pointed out, it is difficult in any event to see how question (a) can be answered affirmatively. In order to determine whether the rights given to the Lessee's predecessor in title were inconsistent with the rights claimed by native title holders, it is necessary to have regard not merely to the WLA and the regulations thereunder, but to the terms and conditions of the Lease itself. This is not to say that the provisions of the WLA are irrelevant to the critical question that must be addressed. Far from it. But any assessment of the rights of the Lessee's predecessor in title must take account of the terms of the Lease itself. We did not understand Mr Sullivan to contend otherwise.