The use made by the primary judge of pastoral leases (Grounds 8, 21, 22, 38, 50, 51 and 13, 46, 59, 63, 67, 81, 88, 90)
154 There is no error in the primary judge's observation at [56] of Ohlsen, which we have extracted above. His Honour was correct to observe that the authorities place emphasis on the grant of rights for particular purposes, and require a careful comparison between a purposive grant and the test for the conferral of a right of exclusive possession as we have explained that concept above. The primary judge made no "assumption" to this effect; indeed, his Honour's own language in [56] - "not necessarily inconsistent" - indicates his Honour appreciated there was a qualitative characterisation to be made.
155 Some passages where this error is contended to be revealed are [121], [124] and [221]. Paragraphs [121] and [124] concern the primary judge's reasoning about the scrub leases. Paragraph [221] concerns his Honour's reasons about the settlement leases.
156 At [121], the primary judge did no more than note the connection, correctly on the evidence, between pastoral leases (and homestead leases) and scrub leases, in terms of scrub leases within the boundaries of an existing pastoral lease or homestead lease only being available to the holders of those other leases. At [124], the primary judge expressly premised his observation by stating that "each case necessarily turns on its own particular facts (with particular reference to the legislation from which the lease is derived as well as the terms of the lease instrument)". His Honour then went on to extract a passage from the judgment of Toohey J in Wik, but his Honour did so for the purposes of applying what Toohey J had said about the scrub leases. In particular, as the respondents submitted, the primary judge referred to Toohey J's reasons to make the observation that the grant of the scrub leases "gave to the lessee such possession as was required for the occupation of the land for those purposes." His Honour was plainly correct to characterise the scrub leases as purposive, given the findings at [110] and [111] about the features of the leases.
157 At [221], the primary judge's statement that "[a]bsent special considerations, and expressed at a level of generality, leases for grazing are likely to be able to co-exist with native title rights and interests" is entirely consistent with established principle. It goes no further than the repeatedly endorsed notion that one factor in any characterisation will be whether a grant gives only as much possession as is necessary to achieve the purpose of the grant. As we explain below, to a material extent that consistency is also reflected in the way the separate questions were framed with the State's agreement. In the context of the entire paragraph of his Honour's reasoning at [221], what the primary judge pointed out, consistently with the evidence before him, was that the settlement leases were also purposive, and targeted particular kinds of land, and were not intended to perform the same function as homestead leases (with which the primary judge had dealt in this context at [325]).
158 There is nothing erroneous in his Honour's approach.
159 Relevantly to grounds 38, 50 and 51, contrary to the State's submissions, we do not consider that the primary judge's reasons at [130], [225], [232], [235], [282] and [327]-[331] disclose any error of this kind either. At [130], there is no more than an observed comparison to pastoral leases, which is compatible with Wik and subsequent authorities. His Honour discloses, in passages such as that at [282], a consciousness that there is no necessary or automatic connection with pastoral leases. The parallels his Honour draws are based on his cumulative impression from a number of features or factors. That is the correct approach. At [225], the primary judge refers to a number of statutory provisions about pastoral leases to sustain the comparison he makes and we see no error in this approach. Paragraphs [232] and [235] also illustrate the correct approach to characterisation, by the primary judge standing back and looking, in a holistic way, at the features or factors he has identified from the evidence and argument. Paragraphs [327]-[331] adopt the same method, and the comparison with pastoral leases is not only appropriate, but to be expected when dealing with historic leases of the kind in issue in this proceeding. To conduct the comparative exercise was not only not erroneous, it was necessary. The primary judge engaged in that exercise on a lease-by-lease basis, considering the evidence relevant to each lease. That was correct.
160 As to the State's submissions (at [6] of its written submissions) that the primary judge made another assumption, about leases for pastoral and grazing purposes not being intensive (said by the State to go to grounds 13, 46, 59, 63, 67, 81, 88, 90 in the notice of appeal), in our opinion the primary judge made no such assumption. At some points in his reasons (e.g., at [129] and [281]), his Honour rejected the emphasis placed by the State on "intensity" of use. We see no error in those parts of his Honour's reasons, for the reasons the primary judge expresses at [129] and [281]. Otherwise, "intensity" was a concept introduced by the State, and rightly not elevated to any great importance by the primary judge.
161 Further, we accept the point made by the respondents that the consequences of Wik in relation to pastoral leases was a premise of the framing of the separate questions, and to that extent the primary judge was entitled to understand that the parties both approached the resolution of the separate questions on the basis that the grant of pastoral leases over the land covered by the leases in issue had not extinguished native title. In other words, the premise was that pastoral leases, as a class, and as a consequence of the outcome in Wik, did not have this effect. These submissions are developed in writing by the respondents at [5]-[13]. It suffices to set out part of [5], and [12] and [13] of those submissions.
The parcels of land the subject of the separate questions were previously the subject of pastoral leases but those pastoral leases were not included in the separate questions as dealings which had potentially extinguished native title. For example:
a. The land the subject of the separate questions relating to Western Lands Lease 3469 (WLL3469) had been part of a pastoral lease within "Papekura No. 4 Run", within the pastoral holding known as Willandra.
b. The lease within the Papekura No. 4 Run was then converted into a pastoral lease under the Crown Lands Occupation Act 1861 (CLOA 1861).
c. The pastoral lease under the CLOA 1861 was then divided into "resumed" and "leasehold" areas under the Crown Lands Act 1884 (NSW) (CLA 1884) and a grant of pastoral lease 245 (also known as PL245) was made over the leasehold area.
d Pastoral lease 245 was then converted into WLL1386, which in turn was converted into WLL3301 and WLL3302, before WLL 3302 was surrendered and subdivided into two WLLs, one of which was WLL3469.
….
Further, as set out above, the parties and the Court knew from the evidence that pastoral leases had been granted over the disputed areas the subject of the Homestead Leases. The areas that were subject to the grant of a Homestead Lease were carved out of an earlier pastoral lease. Yet it is in respect of Homestead Leases that the argument is advanced in Ground 51 that the primary judge erred in assuming that the grant of the earlier pastoral lease had not extinguished native title. There would be no utility in putting forward as a separate question whether the grant of a Homestead Lease extinguished native title if the State did not accept that the earlier grant of the pastoral lease out of which the Homestead Lease was carved, had not extinguished native title.
Fifthly, and finally, with respect to this issue, it is notable that the State does not appeal from Orders E. Orders E related to his Honour's answer of "no" to the questions in Schedule 5 regarding 18th Section Leases, as to (1) whether the leases conferred exclusive possession, and (2) whether any subsequent acts had resulted in the lessee holding a right of exclusive possession. As noted above, all the disputed land the subject of the 18th Section Leases was previously the subject of a grant of a pastoral lease. In not appealing Orders E, the State must be taken to accept that native title has not been extinguished in the disputed areas the subject of those leases, including by the prior grant of a pastoral lease. It must therefore be taken to accept that those pastoral leases granted under statute in NSW could co-exist with native title, did not confer exclusive possession, and did not wholly extinguish native title.
(Emphasis original; citations omitted.)
162 We accept those submissions. They are supported by detailed references to the evidence, some of which the State initially sought to challenge on the appeal. That challenge was later withdrawn and the State conceded the respondents' references were accurate. While we do not consider it is accurate to describe the primary judge's reasoning as making an "assumption" about the effect of the grant of a lease properly described as a pastoral lease, we do consider it is accurate, and appropriate, to conclude that the primary judge was guided by the joint approach taken by the parties, and in particular the State, to the identification of the leases said by the State to have an extinguishing effect, and that his Honour was conscious that pastoral leases over some of the land in issue had been deliberately excluded from the separate questions. His Honour was entitled to, and we infer he did, consider that this approach was consistent with established authority, and was entitled to, and we infer did, factor this into his consideration of the appropriate characterisation of each lease at an individual level.
163 The State sought to persuade the Court that the respondents' submissions should not be accepted. At [14] of its written submissions in reply, the State submitted:
Secondly, although the State has never contended that pastoral run leases granted under the CLOA 1861 wholly extinguished native title rights and interests, the State did not accept that Pastoral Leases granted under the CLA 1884 were capable of co-existing with native title rights and interests: cf. RS, [5] and RS [6] (second sentence). Nor did it proceed upon any such assumption. The State's submissions in reply (dated 3 July 2020) made it clear that it did not accept that "pastoral leases" necessarily co-existed with native title rights and interests (see esp. [3] and [20]-[22]). If the Respondent proceeded on an assumption that was inconsistent with the State's articulated position, that is not the fault of the State. Contrary to RS [8], the State is not raising a "new issue for the first time on appeal".
164 The response given by senior counsel for the respondents in oral argument was the following:
That was the dispute which was to be quelled by the court answering these separate questions. Has native title been extinguished either under the Native Title Act or at common law on these particular parcels of land? And on these particular parcels of land there had been earlier pastoral leases that had been granted. Now, if the Court were to answer this question by saying, "Well, no. This improvement lease doesn't extinguish native title," that would not have quelled the dispute on the approach the State is now taking. The State would say, "Well, we've still got to have an extinguishment hearing because there had been an earlier pastoral lease." This is a Bass v Permanent Trustee situation. The separate questions would lack all utility. They would not quell the dispute.
165 That submission should be accepted. It is apparent from the transcript of the first day of the hearing before the primary judge that his Honour was acutely concerned to ensure that the separate question process would be effective to quell the dispute between the parties about whether native title had been wholly extinguished on the parcels of land identified in the separate question. See, for example, the following passages from his Honour during the first day of the trial (related to other apparent uncertainties about the separate questions):
…. I need to be confident that the terms of reference - the ambit of the separate questions is a matter upon which there is agreement between the parties. These separate questions were ordered by consent. I accept that the Court has its own responsibility to exercise in ordering separate question[s], but I want to make sure that this case is not going to - after two weeks and all the huge amount of effort that has gone into it and the amount of money that has been spent on it, that it's all going to come to no point because someone is going to take a special leave application and say the separate questions have not been honoured in this case, they have been fudged.
….
Look, it may - look, over the weekend I was reading Kirby J's judgment in - I can't remember which one it was now; it might have been given in Wilson v Anderson. I think he was one of the dissenting judges. And he was lamenting there the amount of resources and time and the heavy litigious nature of native title legislation - litigation, I beg your pardon, and how much it's just sucking up all of the benefits that were meant to accrue to Indigenous people. I'm just now very, very anxious that here we are on the first day of a two week trial and there are alarm bells ringing already about the adequacy of the terms of the separate question.
…
I need to have - what I'm suggesting to you gentlemen is I need to have complete and utter confidence that we can [have] consensus here on the ambit of these separate questions, and if there is any controversy or any dissention I will pull the plug on the lot.
166 It was the capacity of the Court to recognise native title in the land (and any waters) which was in issue on the separate questions; and it was the dispute between the parties which the separate questions sought to quell. If the State was contending other acts by the State in relation to the same land (and any waters) precluded any recognition of native title, its responsibility was to bring that contention forward at the trial of the separate questions. It did not do so. It did not make the primary judge aware, nor did it make the respondents aware, that it contended the application of the principles in Wik, or the extinguishment provisions of the Native Title Act, to the grant of earlier pastoral leases might or did mean those grants had also extinguished native title. Since the State referred to its reply submissions before the primary judge, the Court has looked at those paragraphs referred to, even though they were not in the appeal book. While those passages certainly emphasise, as the State did on this appeal, that it is possible for some pastoral leases to be characterised as granting exclusive possession (and the Native Title Act expressly recognises this), what those submissions do not do is put in issue on the separate question that the particular pastoral leases granted previously over the particular land in question had this effect. Rather, the State encouraged both the respondents and the primary judge to act on the basis that the only acts of extinguishment which could preclude recognition of native title over the land (and any waters) subject to the nine categories of leases were the acts it identified in the separate questions.
167 In the face of this aspect of its conduct of its case before the primary judge being raised, senior counsel for the State informed the Court on the appeal that he had instructions to offer an undertaking to the Court:
My client has instructed me that my client is, if necessary, willing to give an undertaking that if the answers, for instance, the settlement leases and these other leases on which - which were on land that had been covered by earlier pastoral leases, should when the judicial process is over - and I mean that by reference to possibility of appeals and so on. If it's finally determined against my client that these things do not extinguish native title, my client has indicated that I'm instructed that an undertaking can be given if it's required that we will not seek to reopen those findings based on earlier pastoral leases on those lands. So that should do away with the Bass v Permanent Trustee difficulty that my learned friend has referred to.
168 The proffering of an undertaking of this kind was not necessary. The State had not put in issue before the primary judge the capacity of any earlier pastoral lease over any of the lands and waters in issue to extinguish native title, and preclude its recognition in the respondents' s 61 claim, if they were otherwise successful. In the circumstances of these separate questions, for the reasons articulated by the primary judge in transcript, the State was bound by its conduct at trial: see Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1. It is clear from the reasons of the primary judge as a whole that both his Honour and the respondents proceeded on the basis the State did not allege there had been any earlier extinguishing acts in relation to the land and waters in question.
169 The relevance of the existence of pastoral leases over the land (and any waters) which was the subject of many of the leases in issue was twofold. First, at a general level, it confirmed (if confirmation were needed) the appropriateness and relevance of the primary judge engaging, on a lease-by-lease basis, in some comparisons between the leases in issue and the grant of pastoral leases - that having been an earlier form of tenure granted over the land in question. Second, we find the primary judge was entitled to proceed on the basis that the State was not seeking to persuade the Court that earlier pastoral leases over the land (and any waters in question) had extinguished native title.
170 All of the grounds which relied on assertions of error in the way the primary judge used, or relied upon, the effects of the grant of pastoral or grazing leases should be rejected. Those grounds are: 8, 21, 22, 38, 50, 51 and 59a (see the State's written submissions at [4]-[5], [18], [24], [34]-[41]). Also rejected are the grounds which more indirectly pick up the way the primary judge considered parallels between the leases in issue and pastoral leases: grounds 13, 46, 59, 63, 67, 81, 88 and 90 (see the State's written submissions at [6], [9], [21], [43]).