Brandy v Human Rights and Equal Opportunities Commission

The first of the matters before the Court, WG 6002 of 1995, is an application by Mr Fourmile for review, under s 167(4) the Native Title Act 1993 (Cth) (NTA), of a determination of the National Native Title Tribunal in a non-claimant native title determination application by Selpam Pty Ltd. Mr Fourmile claims native title in respect of the land the subject of Selpam's non-claimant application. The second matter, WG 6003 of 1995, is an appeal by Mr Fourmile under s 169(2) of the NTA from the decision of the President of the Tribunal directing the Registrar not to accept his own application for determination of native title over that land.

Mr Fourmile's review application in WG 6002 of 1995 raises two issues: firstly, whether the Tribunal was correct in determining that native title cannot survive what is described as the reservation of Crown land as a road and, secondly, whether a determination of the Tribunal in an unopposed application, once registered under the NTA, involves a constitutionally invalid exercise of Commonwealth judicial power.

The issue raised by Mr Fourmile's appeal in WG 6003 of 1995 is whether the decision of the President of the Tribunal under s 63(3) of the NTA that, prima facie, Mr Fourmile's claim, in so far as it was in respect of this area of road, cannot be made out and the President's consequential direction to the Registrar of the Tribunal to refuse to accept Mr Fourmile's application involved an invalid exercise by the President of Commonwealth judicial power.

The first matter arises out of an application for a determination of native title made by Selpam, pursuant to ss 13(1)(a) and 61(1) of the NTA, as the holder of an interest in relation to the whole of the area in respect of which the determination was sought. In his reasons for determination, the Tribunal member who dealt with Selpam's application identified the land the subject of this non-claimant application as comprising:

Part 1 - about 64.75 hectares (160 acres) of freehold land described as Lot 25 on registered plan N157475 at Cairns.

Part 2 - a three acre parcel within Part 1 reserved by the Deed of Grant of Part 1 for "road purposes".

The Tribunal found, in respect of this reservation, that no road had ever been constructed or its location even identified, saying:

This is in accord with practice in Queensland whereby lands which might be required for future road needs are identified by area but not by any specific location within grants. Unless and until a road is required the beneficiaries of the Deed of Grant can exercise all of the rights of ownership over the whole of the land the subject of the Deed of Grant.

This practice antedated the Crown Lands Act of 1891 (Qld): by s 20, it declared valid all such "floating" reservations "heretofore made or hereafter to be made" in any deeds of grant. The practice appears to have been instituted by Governor Macquarie: see City of Keilor v O'Donohue (1972) 126 CLR 353 at 366-367. It continues: see s 23 of the Land Act 1994 (Qld).

Part 3 - an area of 4,980 m2 (about 200 m long by 25 m wide) forming part of Roberts Road, described by the Tribunal as "a road reserve", that separated Part 1 and another parcel of land described as Lot 1 on registered plan 720151, also owned by Selpam.

The Tribunal found that Roberts Road, which included Part 3, had been marked out as a road on a surveyed plan dated 1891, but that no roadway had ever been constructed.

The interest which Selpam relied on to support its application in relation to Parts 1 and 2 was its freehold ownership of Lot 25 and, so far as Part 3 is concerned, the fact that it, as the owner of Lot 25 on the northern side of this portion of road and the freehold owner of Lot 1 on its southern side, had made application to the Queensland Department of Lands for the permanent closure of this portion of road. When it made its non-claimant application to the Tribunal, Selpam had, by force of s 365 of the Land Act 1962 (Qld), an expectation, if closure was approved, that it could purchase the fee simple in this section of road from the Crown, which Selpam intends to incorporate in its planned subdivision of an area within Lot 25 and Lot 1. See now s 108(2) and (3) of the Land Act 1994. Mr Fourmile did not challenge the Tribunal's finding that Selpam's statutory right to apply for closure of this portion of road gave it an interest sufficient for the purposes of s 13(1) of the NTA.

Selpam does not appear to have made any non-claimant application to the Tribunal in respect of Lot 1. It is not apparent why Selpam, having brought a non-claimant application in respect of the freehold land comprising Lot 25 and in respect of this small portion of Roberts Road, did not also bring a similar application in respect of the freehold land within Lot 1, which it owned to the south of Lot 25 and Roberts Road, and which was an integral part of its proposed subdivision.

Selpam's application was accepted, apparently pursuant to s 63 of the NTA, and was then dealt with by the Tribunal member as an unopposed application within s 70. On 22 July 1994, shortly before expiry on 1 August 1994 of the period of notice of Selpam's application required by s 66 to be given by the Registrar of the Tribunal, Mr Fourmile lodged his own claimant application; he applied for a determination of native title on his own behalf and on behalf of the other members of the Gimuy clan of the Yidinji nation over land which he identified only as the area of land "described in non-claimant applications by Selpam Pty Ltd" and the area described in an application by another non-claimant applicant over other lands with which this appeal is not concerned. This application was referred to the President of the Tribunal, as required by s 63(2) of the NTA, on 25 August 1994, the Registrar having formed the opinion that, prima facie, Mr Fourmile's claim could not be made out. On 1 September 1994, the President wrote to Mr Fourmile, saying:

[Your] application relates to some parcels of land which are the subject of non-claimant applications QN94/4 and QN94/7 lodged by Selpam Pty Ltd and CSR Ltd respectively. The land the subject of the Selpam application comprises Lot 25 of Plan N157475, a three acre floating road reservation within the lot and an unconstructed extension of Roberts Road abutting part of the southern boundary of Lot 25 …

In the circumstances I am of the same opinion as the Registrar, that prima facie your claim cannot be made out as it would appear that native title has been extinguished by the grant of freehold title over much of the area under claim.

I am now required by the Act to give you a reasonable opportunity to satisfy me that a prima facie claim can be made out. I therefore invite you to respond within fourteen (14) days with written submissions to satisfy me that a prima facie claim can be made out …

The President was required by s 63(3)(a) of the NTA to give Mr Fourmile this opportunity. It is plain that the President recognised that the area the subject of Selpam's claim included the floating road reservation and part of Roberts Road; but he did not consider that Mr Fourmile's application required him to make any decision of the kind provided for by s 63(3) in respect of the two small areas the subject of road reservations within Selpam's claim area, if Mr Fourmile's application could not succeed in respect of the larger area. In terms, Mr Fourmile's claim was to the entirety of the area the subject of Selpam's non-claimant application; there is nothing in his application, including the detailed description of the native title he claims, that suggests his application was for the portion of road, even if his claim to the other areas should be unsuccessful. The President, in his letter of 1 September 1994 to Mr Fourmile, indicated that he understood Mr Fourmile's application, in so far as it related to the small area of road, was dependent upon the success of his application for a determination of native title in relation to the much larger area of freehold land contained within Lot 25. This must have been quite clear to Mr Fourmile from the President's letter. He did not, however, respond to the opportunity the President gave him to correct the latter's interpretation of his application. The President, on 27 September 1994, accordingly directed the Registrar, pursuant to s 63(3)(c), not to accept it and, on 30 September 1994, the Registrar wrote to Mr Fourmile to advise him of this direction. Mr Fourmile did not appeal the decision of the President rejecting his application within the 28 days allowed by s 169(4)(a) of the NTA. Selpam's non-claimant application for determination of native title thereupon became, by force of s 67(4) and s 70(2)(c), an unopposed application. It was in these circumstances that the Tribunal member proceeded to make his determination pursuant to s 70(1) of the NTA on Selpam's non-claimant application on 18 January 1995. It was only after that, on 3 March 1995, that Mr Fourmile lodged his appeal, in reliance on s 169(2), against the President's rejection of his application of 22 July 1994. By order of this Court under s 169(4) of the NTA on 21 April 1995, the time for filing that notice of appeal was extended to 3 March 1995.

The Tribunal's determination of Selpam's non-claimant application was made following the inquiry it was required to hold pursuant to s 139(a) of the NTA. While it would appear that Mr Fourmile was not a "party" to this inquiry within the meaning of that term in s 141(1), the Tribunal received written submissions lodged by his solicitor. It held that Mr Fourmile could not rely on his rejected claim to native title as a ground of opposition to Selpam's application; but the Tribunal considered other arguments put by him in opposition to the non-claimant application. The Tribunal was entitled to follow this course, in view of s 70(1): this empowered it to make a determination "in, or consistent with, the terms sought by" Selpam, if it was satisfied that Selpam had made out a prima facie case for a determination in those terms and if the Tribunal considered the determination to be just and equitable in all the circumstances.

In his review application, Mr Fourmile does not challenge the correctness of the Tribunal's determination that the grant of freehold title over the area in question extinguished native title both with respect to the land comprising Lot 25 (Part 1 of Selpam's application) and with respect to the floating reservation of three acres (Part 2 of that application). As to the correctness of the Tribunal's decision with respect to Part 1, see, eg, Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 68-69 and 110; with respect to Part 2, see City of Keilor v O'Donohue at 367-368, where it was held that a grant of the freehold, subject to a floating road reservation, gives a freehold title to the whole of the land, but defeasible as to so much of the land, up to the maximum area of the floating reservation, as the Crown might require in the future for a road. Mr Fourmile does, however, seek review of the Tribunal's decision with respect to the land in Part 3 of Selpam's non-claimant application on the ground that:

The Tribunal erred in law in concluding that the reservation of the land under the Land Act 1962 (Queensland) comprising part of Roberts Road which was never constructed vested beneficial ownership of that land in the Crown which was wholly inconsistent with the continued enjoyment of the rights and interests of any prior native title holders.

He also wishes to use his review application as a vehicle for testing his contention that the scheme of the NTA, in so far as it makes provision for binding declarations of the existence or non-existence of native title in respect of unopposed applications based on Tribunal determinations, is beyond the powers of the Commonwealth Parliament. He contends that:

The determination of the Tribunal upon registration pursuant to the Native Title Act 1993 (Cth), Sub-Section 166(3) and as a consequence of the operation of Sub-Section 167(1), having been made pursuant to Section 160 in respect of an Application under Section 61 of the kind set out in Section 70, comprises an exercise of judicial power by a body other than a federal court, contrary to Section 71 of the Constitution of the Commonwealth of Australia.

The Commonwealth, which has intervened, submits that it is appropriate, first, to determine the status of the portion of Roberts Road within Selpam's application and whether native title is capable of continued existence over that area of land; only if the answer is in the negative will it become necessary, so the Commonwealth says, to consider whether Mr Fourmile's challenge to the constitutional validity of the Tribunal's registered determination in favour of Selpam is well founded. I will follow this course.

The Tribunal's decision with respect to Roberts Road

In Selpam's non-claimant application, the Tribunal relevantly determined with respect to the area comprising Part 3 within Roberts Road that native title does not exist therein. The case before the Tribunal was conducted on the assumption that s 362(2) of the Land Act 1962 provided for the dedication of Part 3 as a road, the question being whether s 362(4) had the effect of extinguishing any native title that may have existed in land so dedicated. The Tribunal held that, while no road was ever actually constructed on this area of land, since s 362(4) of the Land Act 1962 vested full beneficial ownership in the State Crown, that was wholly inconsistent with continued enjoyment of the rights and interests of any prior native title holders. The correctness of this conclusion was challenged in written submissions filed on behalf of Mr Fourmile in this Court before the hearing of the appeal. But he then sought to change his position in so far as, in his written reply to the outline of argument filed by the State of Queensland, it was submitted that this area of road had not, in fact, been opened or dedicated as a road under the Land Act or under "the repealed Acts" referred to in s 362(4). It was further submitted that the road had either been incompletely created at common law (there being evidence of its dedication as a road by its being marked as such on the 1891 survey plan, but no evidence, so it was said, of public user of the road, ie, no evidence that its dedication as a road had been accepted by the public) or that, if it was completely constituted as a road at common law, native title still continued to exist with respect to the land in that road reserve.

The ownership of land comprised in all roads opened or dedicated under this section or opened or dedicated under the repealed Acts shall be and remain vested in the Crown.

If this provision applied to this section of road, the Tribunal was correct in holding that it would operate to extinguish any native title that may previously have existed with respect to the land contained in the road: in my opinion, s 362(4) has the same extinguishing effect on native title as the provisions of the various Queensland mining statutes that operated to vest in the Crown the full beneficial ownership in minerals in land in the State, which I discussed in Wik Peoples v State of Queensland (1996) 63 FCR 450 at 500-501: see Wik Peoples v State of Queensland (1996) 187 CLR 1, per Brennan CJ at 85-86 and 92.

But the Tribunal was in error in holding that s 362(4) applied to this portion of roadway comprising Part 3 of Selpam's non-claimant application. Section 362(1) provides for the constitution of Crown lands as public roads by a procedure involving public notification; s 362(2) provides for another method whereby Crown lands can be constituted as public roads by registration in a public office of a plan of survey delineating such lands as a public road; and s 362(3) provides for a third method of constituting non-Crown land comprised in a pastoral lease and Crown land comprised in an occupation licence as a road, by the delineation of the approximate location of an unsurveyed road on an official map. The general rule is that an enactment operates prospectively only, ie, as not attaching new legal consequences to facts or events which occurred before its commencement: Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194. The language of s 362(1) and (2) is prima facie prospective in effect. Section 362(3) provides that if an unsurveyed road through a pastoral lease or an occupation licence was delineated by a dotted line on a map or plan published by the Department of Lands "whether before or after the commencement of this Act", that "sufficiently dedicated" the unsurveyed road as a road for public use. Given s 362(3), which operates to attach legal consequences to certain events that occurred prior to the commencement of the Land Act 1962, the conclusion is irresistible that, so far as the methods of constituting Crown lands as public roads under s 362(1) and (2) are concerned, the general rule stated in Fisher v Hebburn applies. The road here in question cannot have been opened or dedicated under s 362(1) or (2). There is no suggestion that it became dedicated as a public road pursuant to s 362(3): on the evidence, from the time it was first identified as a road in 1891, it has been a surveyed road.

Apart from the roads referred to in s 362(1), (2) and (3), s 362(4) declares Crown ownership only in those lands comprised in roads opened or dedicated as such under "the repealed Acts". This expression is defined in s 4 of the 1962 Act to mean the Acts mentioned in the Schedule to the 1962 Act. These repealed Acts are relevantly limited to the Land Act 1910 (Qld) and certain later enactments. Apart from a few special enactments made before 1910, none of which is of any present relevance, s 4 of the 1962 Act did not repeal any earlier legislation: all relevant prior legislation had been repealed by the Land Act 1910 or by earlier, long-since repealed legislation.

According to the plan of survey of 18 May 1891, the road here in question was surveyed under the instructions of the Surveyor-General of 23 December 1890. The only basis upon which it was suggested that this road could be regarded as having been opened or dedicated under "the repealed Acts" referred to in s 362(4) of the Land Act 1962 was that s 180(3) of the Land Act 1910, one of those repealed Acts, should be read as providing for the opening or dedication of this particular road.

Section 180(1) of the Land Act 1910 empowered the Governor in Council to reserve from sale or lease any Crown land required for "public purposes", an expression defined to include "roads". This provision is similar to provisions found in earlier Queensland Crown lands legislation, eg, s 6 of the Crown Lands Alienation Act of 1876 (Qld), s 95 of the Crown Lands Act of 1884 (Qld) and s 190 of the Land Act of 1897 (Qld). Section 180(3) of the 1910 Act, however, was a new provision. It provided:

All land heretofore reserved or set apart for any public purpose, and the fee- simple whereof has not been granted by the Crown, shall hereafter be deemed to be a reserve for public purposes under this Act, and deemed to have been so reserved under this section.

Section 180(3) may well have applied to the road here in question. But I have difficulty reading s 180(3) as providing a statutory means of constituting Crown land as a public road: as will appear, the public have certain rights, enforceable at law, with respect to land comprising a public road but there is authority that a mere reservation or setting apart of Crown land for a public purpose does not create new rights in the Crown or rights in others in the Crown land so dealt with. See Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 440; Randwick Corporation v Rutledge (1959) 102 CLR 54 at 74 and Wik Peoples, per Brennan CJ at 86. Such a reservation cannot alter the Crown's radical title to that land. Section 180(3) may have been directed to nothing more than ensuring that land reserved or set apart for any public purposes at the date of commencement of the 1910 Act, irrespective of whether it was at that date already constituted as a public road or merely reserved for road purposes for the future, was protected thereafter from sale or lease under the statutory provisions permitting such dealings with Crown lands.

However, it is unnecessary to express a concluded view on the sub-section since the material before the Tribunal shows clearly enough, in my opinion, that the road in question was effectively constituted as a public road pursuant to s 44 of the Crown Lands Act 1884, as amended by s 13 of the Crown Lands Act Amendment Act 1886 (Qld). This is so even though the Crown Lands Act 1884 did not deal with ownership of land constituted by the Crown from the wastelands of the Crown as a public road and even though the Crown Lands Act 1884 (and the later amending Acts) were all repealed by s 5(2) of the Land Act 1897, which also did not deal with the question of ownership of land constituted by the Crown as roads, and which was, in turn, repealed by s 5 of the Land Act 1910.

The material before the Tribunal included a tenure history report prepared by the Queensland Department of Lands. This shows that, by proclamation of 1 September 1881, under the provisions of the Crown Lands Alienation Act 1876, the Governor in Council notified that all lands in the Cairns Land Agent's District, exclusive of all alienated and reserved lands, were opened to selection at the Cairns Land Office under the provisions of that Act from 19 October 1881. This is the first recorded dealing with the lands in question: they must therefore have then been wastelands of the Crown. The proclamation was made under s 13 of the 1876 Act and specified, as required by s 15, the upset price per acre at which the lands were to be open to selection by conditional purchase; ss 19 and 20 of the Act made provision for the survey of land the subject of an application for conditional purchase and for notice of confirmation of the selection to be given to the applicant after survey. An application was received under the 1876 Act from a Mr Wong on 13 September 1882 to lease an area of 250 acres, identified as Selection No 305. As required by s 17, the application identified the lands as unsurveyed. However, by 30 March 1883, the Land Commissioner at Cairns had received Mr Wong's application, pursuant to reg 10 of the regulations under the 1876 Act, for permission to withdraw his application for Selection No 305, an application subsequently approved. The 1876 Act was repealed and replaced by the Crown Lands Act 1884. By proclamation of 31 October 1890, the Governor in Council notified that certain lands listed in the schedule to this proclamation were open to selection under the provisions of the Crown Lands Acts 1884 to 1889 from 1 December 1890. These lands included a lot described as Portion 24V in the Land Agent's District of Cairns, Parish of Grafton, containing 160 acres. This 160 acre lot was included within the 250 acre lot the subject of Mr Wong's abandoned 1882 application: the proclamation referred to Portion 24V as comprising "part of a Cancelled Selection No 305". The proclamation records the suspension a week earlier, by Order in Council of 23 October 1890, of the operation of the requirement imposed by s 43 of the Crown Lands Act of 1884 that land be surveyed and divided into marked lots before being opened for selection; the proclamation also recorded that the Surveyor-General had, as required by that Order in Council of 23 October 1890, "divided the said land into the lots specified in the said Schedule, and has indicated the position thereof on proper maps or plans". This Order in Council is expressed to have been made under the provisions of the Crown Lands Acts 1884 to 1886.

Part IV of the Crown Lands Act 1884 contained the following provisions:

41. The Governor in Council, on the recommendation of the Board, may by Proclamation define and set apart any Country Lands as Agricultural Areas.

42. The Governor in Council, on the recommendation of the Board, may by Proclamation declare any Country Lands to be open for selection under the provisions of this Part of this Act, and may by like Proclamation, on the like recommendation, withdraw any such lands from being so open.

43. Before any land is so proclaimed open for selection it shall be surveyed under the direction of the Surveyor-General and divided into lots of convenient area for selection, with proper roads and reserves for public purposes, and such lots shall be marked on the ground by posts not less than three feet in height at the corners of the lots.

44. With respect to land which, before the passing of this Act, had been proclaimed open for selection or for sale by auction under the provisions of "The Crown Lands Alienation Act of 1876," or any Act thereby repealed, and as to which it is practicable to divide the land into lots without actual survey, and to indicate the position of such lots by means of maps or plans, and by reference to known or marked boundaries or starting points, the following provisions shall have effect:-

(1.) The Governor in Council on the recommendation of the Board may suspend the operation of so much of the last preceding section as requires the land to be actually surveyed and marked on the ground before it is proclaimed open for selection, and may require the Surveyor-General to divide the land into lots, and to indicate the position of such lots on proper maps or plans;

(2.) The land may thereupon be proclaimed open for selection in the same manner as if it had been surveyed, and the delineation of the lots on the maps or plans shall be deemed to be a survey thereof, and the lots shall be deemed to be surveyed lots for the purposes of this Part of the Act;

(3.) The powers conferred by this section may be exercised at any time within two years after the commencement of this Act, but not afterwards.

46. When any land is so proclaimed open for selection, maps shall be prepared and exhibited to the public at the land office of the district and at the Department of Public Lands in Brisbane showing the land so open … and such other information as may be prescribed.

The expressions "Country Lands" and "Agricultural Area" were defined by s 4 to mean "All Crown lands which are not town lands or suburban lands" and "Crown lands proclaimed as such under the provisions of this Act", respectively. The term "Crown Lands" was defined to mean "All lands vested in Her Majesty which are not for the time being dedicated to any public purpose, or subject to any deed of grant, lease, contract, promise, or engagement, made by or on behalf of Her Majesty; and all lands which are subject to a right of depasturing under Part III of this Act, or are held under an occupation licence under Part V of this Act". Part IV of the 1884 Act appears to have applied to the subject lands: see s 5 and the First Schedule.

Section 43 made it a precondition of the opening for selection of Country Lands, including Agricultural Areas, that the lands first be surveyed under the direction of the Surveyor-General and divided into lots of convenient area for selection "with proper roads and reserves for public purposes". That is, the survey into lots of any land intended to be subsequently opened for selection under Pt IV of the 1884 Act was required to make provision for "proper roads". This expression, in my opinion, undoubtedly covered the roads necessary to provide access to each of the planned lots, as well as any roads necessary for other public purposes, such as the provision of thoroughfares through the lands so opened for selection. I would therefore regard s 43 as legislative authority for the creation from "Country Lands", ie, wastelands of the Crown, of roads required for such purposes. Legislative authority has been essential to the validity of any dealing with Crown wastelands in Queensland at least since the enactment of s 40(1) of the Constitution Act 1867 (Qld), which vested in the Queensland legislature "the entire management and control of" those lands. This is an embodiment of the principle first applied to Australia by s 2 of the Land Sales Act 1842 (Imp) (5 & 6 Vict, Ch 36) that the wastelands of the Crown were to be thereafter dealt with only by legislative authority; previously, it was the prerogative power that had provided the authority for disposing of interests in the Crown's lands in Australia: see Wik Peoples, FCR at 461-462 and 477-478 and CLR at 91, 139-140, 173-174 and 227.

Section 44 of the 1884 Act, however, modified the mandatory requirements of s 43 in respect of land like that here in question which, before the 1884 Act, had been proclaimed open for selection under the 1876 Act. Section 44(1) empowered the Governor in Council to suspend so much of the operation of s 43 as required country land to be surveyed before it was proclaimed open for selection and instead, to require the Surveyor-General to divide the land into lots and to mark the position of those lots "on proper maps or plans". Section 44(2) performed an important role. It was not enough to provide, as s 44(1) did, for the suspension of the operation of s 43 and for the marking of the unsurveyed lots on maps, since that would merely have authorised the proclaiming of unsurveyed lands open for selection: s 49 permitted applications for selection only of surveyed lands. Once s 44(2) deemed the lots marked out pursuant to s 44(1) by the Surveyor-General on plans and maps to be surveyed lots, however, the provisions of Pt IV of the 1884 Act dealing with the making of applications could be implemented. Unsurveyed land would ordinarily be incapable of being selected, when opened under s 44, unless at the time the Surveyor-General divided that land into lots by marking them on maps or plans, he also delineated on those maps or plans such roads as were necessary to ensure access to each subdivided lot. I would therefore read s 44, in the context of Pt IV of the 1884 Act, as authorising the Surveyor-General, in dividing unsurveyed land into lots by marking maps or plans, to also mark on those maps the location of "proper roads".

Section 44, in deeming the delineation by the Surveyor-General of lots on maps or plans to be a survey of the lots for the purposes of Pt IV of the Act, cannot be read as removing entirely any requirement for an actual survey of the lots opened for selection under s 44 (and of the associated roads). Part IV of the 1884 Act made provision for the issue of a notice confirming an application for selection made under s 49, which notice set out the fencing and other conditions to be fulfilled by the selector (s 51); for the issue, after such confirmation, of a licence to occupy the land selected (s 54); for the right of the selector to a lease, on certification of performance of the conditions fixed in the notice of confirmation (s 58) and for the right of the lessee, upon proof of personal occupation of the selection for five years, to a deed of grant in fee simple (s 74). The scheme of Pt IV of the Act, which was based primarily on the principle of selection only after survey, could not work with respect to land selected before survey under s 44 unless it was surveyed at some time, probably before grant of the licence to occupy, if not before grant of a lease. Confirmation that the Act intended that unsurveyed lots opened under s 44 had to be surveyed is found in s 49 of the 1884 Act which required the application for each lot opened for selection under Pt IV to be accompanied by "the survey fee" (relaxed by s 15(4) of the 1886 Act to a requirement to pay one fifth of the survey fee when the application was lodged, with the remainder payable over a period thereafter). Regulation 35 of the regulations made under s 130(1) of the Crown Lands Act 1884 also provided that: "... in the case of lots proclaimed open to selection under the provisions of section forty-four of the Act, the survey fees will be fixed provisionally, and when the survey of the boundaries is completed the applicants will be required to pay, or will be entitled to receive, as the case may be, such amount as will make up the difference, if any, between the amount so fixed provisionally and the actual cost of survey of the land". I would therefore read Pt IV of the 1884 Act as requiring, by implication, the carrying out of the survey referred to in s 43, to fix the location of necessary roads as well as the location of each of the lots, before the grant of a licence to occupy any lot opened for selection before survey under s 44.

By s 44(3) of that Act, the powers conferred by s 44 could only be exercised within two years after the commencement of the 1884 Act and not afterwards. The subject lands were not therefore opened for selection under s 44 of the 1884 Act. But s 13 of the Crown Lands Act Amendment Act 1886 provided:

The powers conferred by the forty-fourth section of the Principal Act may be exercised with respect to any land as to which it is practicable to divide it into lots without actual survey, and to indicate the position of such lots by means of maps or plans, and by reference to known or marked boundaries or starting points, and as well after as before the expiration of two years from the commencement of that Act. And the provisions contained in that section limiting its operation to a period within two years after the commencement of that Act are hereby repealed.

Section 44, as amended in 1886, permitted the opening of unsurveyed lands anywhere in Queensland provided they were "Country Lands" and also provided that it was practicable to divide such lands into identifiable lots by marking them on maps. It is, in my opinion, clear that Lot 25 was opened for selection by the Proclamation of 31 October 1890 under s 44(2) of the 1884 Act as amended by s 13 of the 1886 Act. It is also clear enough that the road in question was constituted a road under those same provisions. There is no suggestion in the tenure history that this area of roadway was ever included in any grant by the Crown of an interest in land that encompassed this area or that it was ever contained in land reserved by proclamation, ie, without grant or reserved from any grant, for road purposes pursuant to s 95 of the Act of 1884 or pursuant to earlier legislation, including s 6 of the Act of 1876. It was not surveyed when Mr Wong applied for Selection No 305. The first recorded dealing with the lands that comprised part of this road is the survey of 18 May 1891 carried out at the direction of the Surveyor-General. It is a survey of the kind which the Surveyor-General was authorised by s 43 of the 1884 Act to require, as well as a survey which Pt IV of that Act required to be carried out between the time Lot 25 was opened for selection, as unsurveyed land, under s 44 of that Act on 31 October 1890 and the time when the first licence to occupy that land, so selected, was granted, something that occurred on 17 September 1891.

Section 2 of the Crown Lands Act of 1884 Amendment Act of 1885 (Qld) (which, by s 1, was to be read and construed with the 1884 Act), as amended by s 12 of the Crown Lands Act Amendment Act 1886 and s 7 of the Crown Lands Acts 1884 to 1886 Amendment Act of 1889 (Qld), enacted a scheme governing both the opening and selection of unsurveyed country lands in Queensland that was similar to, but separate from, the scheme provided for by s 44 and the other provisions of Pt IV of the 1884 Act. But s 7 of the 1889 Act left untouched s 13 of the 1886 Act set out above. There were thus available, in 1890, two separate schemes for the opening and selection of unsurveyed lands in the Cairns Land Agent's District, including Lot 25, which the tenure history shows was unsurveyed at that time. If it were intended in 1890 that selection of this land be permitted under s 49 and the other provisions of Pt IV of the 1884 Act, a proclamation would first have to be made under s 44(2) of that Act, as amended by s 13 of the 1886 Act. If, however, it were then intended that selection of this land be permitted under the special scheme contained in s 2 of the 1885 Act, as amended by s 7 of the 1889 Act, an order in council under s 2 of the 1885 Act, as amended in 1889, would have to be made.

It is apparent that the Order in Council of 23 October 1890 was made under the provisions of s 44 of the Crown Lands Act 1884 as amended in 1886, not s 2 of the Crown Lands Act of 1884 Amendment Act of 1885 as amended in 1886 and 1889: it recites the former legislation as its authorisation and, as well as ordering the suspension of the operation of the relevant part of s 43 of the 1884 Act, the Order in Council requires the Surveyor-General to divide the land into lots and to indicate their position on proper maps or plans, a requirement for which s 44(1) makes provision, but for which the procedure prescribed by s 2 of the 1885 Act, as amended in 1886 and 1889, makes no provision. The Proclamation of 31 October 1890 recites the order and requirement made by the Governor in Council by the Order in Council of 23 October and that the Surveyor-General has complied with that requirement; it goes on to refer to the Crown Lands Act 1884 to 1889 and to proclaim the lands in the schedule open to selection on 1 December 1890: it was the step prescribed by s 44(2) for the formal opening of the land for selection.

Following this proclamation, application No 310 dated 1 December 1890 was lodged by a Mr Miller to select an agricultural farm in respect of the subject land, still then identified as Portion 24V, together with one fifth of the survey fee. The land was surveyed, according to the plan of survey included in the tenure history "under written instructions from Surveyor-General" dated 23 December 1890 and the plan of survey forwarded to the Surveyor-General on 18 May 1891. As I have said, the evidence before the Tribunal shows that the road in question was surveyed as part of this survey of Portion 25V. On 17 September 1891, Mr Miller was granted a licence to occupy the subject land, which the licence shows had been renumbered as Portion 25V. (A notation on the current certificate of title shows that the description of this land was changed on 9 December 1986 to "Lot 25" , its current designation.)

The tenure history shows that the procedure provided for by the general provisions of Pt IV of the 1884 Act was followed: the licence records that the Land Commissioner's approval of the application was given on 5 December 1890 and that the approval was confirmed by the Land Board on 4 September 1891, ie, after the land had been surveyed in May of that year. While the land tenure history does not contain any documentary evidence with respect to the grant of a lease to Mr Miller, following the grant to him of the licence to occupy agricultural farm No 310, it does include the deed of grant in fee simple of the land contained in this particular agricultural farm to him. The deed of grant dated 14 February 1898 recites that "Whereas, in conformity with the Laws and Regulations in force for the Alienation of Crown Lands in Our Colony of Queensland, Henry Miller has become entitled to a Deed of Grant in Fee-simple of the Land hereinafter described …" and it proceeds to grant to him the fee simple in the 160 acres "being the Land selected as Agricultural Farm No 310".

The evidence accepted by the Tribunal also was to the effect that no roadway was ever built on any part of the land comprising this road. There was no direct evidence before the Tribunal suggesting it had ever been used as a road either. But the Tribunal was told this road provided the only access to Lot 25. The 1891 survey plan confirms this. The modern Queensland Lands Department map, apparently lodged by Selpam in support of its road closure application and which was before the Tribunal, shows this still to be the case. This suggests that it is likely that, at some time, it would have been used for access to Lot 25, which passed to Mr Miller's widow in 1916 and then, on her death in 1917, to the Public Curator; then to Mulgrave Shire Council in 1947 under s 27(11)(vi) of the Local Government Act 1936 (Qld), following an unsuccessful attempt by the Council to sell the land for non-payment of rates; then to two different owners, in 1952 and in 1964, until it finally passed into Selpam's ownership in 1992, when Selpam also acquired the land immediately to the south of this road. Moreover, the land adjoining Lot 25 to the west, and to which this road provides access, is State Forest 607. As part of the procedure for the closure of this portion of Roberts Road, Selpam's consulting surveyor advised the Queensland Forest Service:

It is noted that the proposed road closure shall not restrict public access to State Forest SF 607 as the western extent of this road reserve, which presently provides public access to the State Forest, shall have access to the principal road access to be provided through the proposed subdivision.

The Forest Service consented to the road closure "provided that access to State Forest 607 is retained at the same point".

There is authority that where, as in the Northern Territory, legislation providing for the opening of public roads by the Crown does not preclude the Crown from opening public roads in accordance with the well-established common law rules, the common law methods of opening public roads remain available to the Crown. See Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, per Lockhart J at 541, agreeing with an earlier unreported decision of Wilcox J, Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (3 August 1988). It was in that context that Wilcox J expressed the opinion, with which Lockhart J later agreed, that land owned by the Crown cannot be constituted in accordance with common law principles as a public road by dedication alone, without acceptance by the public. But these decisions do not purport to throw any doubt upon the proposition that, where the Crown is permitted by legislative authority to constitute a public road, the question whether lands have been so constituted as a public road depends entirely on whether the statutory procedure has been followed. It is basic law that "a public highway may be erected by statute or by dedication and acceptance": Owen v O'Connor [1964] NSWR 1312 at 1319. See also Commissioner for Railways v Dangar (1943) 15 LGR(NSW) 101 at 104 and cf Newington v Windeyer (1985) 3 NSWLR 555 at 561, as to the sufficiency of compliance with the statutory requirements for the constitution of private land as a public road, in the absence of evidence of the common law requirement of an intention to dedicate the land as a public road. In Bass Coast Shire Council v King [1997] 2 VR 5, at 23, the Victorian Court of Appeal accepted that Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 420, establishes that it is the public right to use land as a way, rather than its physical nature, that makes land a highway: it follows that, while dedication and acceptance may be required to establish the public right of user of land that is necessary at common law to constitute land as a highway, neither step is necessary if there is a legislative procedure, not involving dedication and acceptance, that nevertheless confers on the public a right of user of land as a highway.

Since, for the reasons given, I consider that Pt IV of the Crown Lands Act 1884, as amended by s 13 of the 1886 Act, prescribed a mode by which the Crown was authorised to constitute wastelands of the Crown as a public road, the question is whether that mode of procedure was followed: if so, the status of the land in question as a public road will be beyond doubt.

I have explained why I consider that this area of road was surveyed in 1891 in accordance with the procedure in s 44 of the 1884 and 1886 Acts for the constitution of Crown land as a road. Where unsurveyed country lands were opened pursuant to s 44, a procedure which necessarily involved the marking on the relevant plans of the unsurveyed lots to be opened for selection and of the necessary access roads to those lots, those plans were required by s 46 to be publicly exhibited, when those lands were proclaimed open for selection, ie, before applications could be made. Section 46 was an essential part of the scheme for opening country lands for selection, either after survey under the general provisions of Pt IV or before survey pursuant to the provisions of s 44. In my opinion, once the maps or plans prepared under s 44 were publicly exhibited under s 46, any roads marked on those maps under the direction of the Surveyor-General in conformity with s 44(1) were effectively constituted as public roads. The publication by the Crown of an official map showing land marked as a road is a significant act: there is authority that the declaration of Crown land as a public road by a public act, such as the publication by the Crown of an official map showing the road marked upon it, was one of the methods by which the Crown could constitute lands as a public road, where the Crown retained prerogative power over Crown lands or where it had general statutory authority to deal with Crown lands that did not prescribe modes whereby roads could be constituted. See Miller v McKeon (1906) 3 CLR 50 at 59; Scott v Shires of Eltham and Heidelberg (1876) 2 VLR (L) 98 at 100; Rapley v Martin (1865) 4 SCR(NSW) 173 at 181-182; Randwick Corporation v Rutledge at 74 and Bass Coast Shire Council v King at 18. It can be inferred by reason of that aspect of the presumption of regularity, which Wigmore on Evidence (1981 Rev) at par 2534 calls the presumption of due performance of official duty, that, following the proclamation of 31 October 1890, the map showing the location of Lot 25 and the road in question, which the proclamation recorded had been prepared by the Surveyor-General, was publicly exhibited, as required by s 46.

The material before the Tribunal therefore sufficiently showed that the road in question, which included the land in Part 3 of Selpam's application, was effectively constituted not only as a road, but as a public road, by action taken by the Crown by 1891 under s 44 of the 1884 Act, as amended by s 13 of the 1886 Act. It is a public road because the legislative provisions under which it was opened as a road did not impose any limitation on the persons who could use it for the purpose of passage: that, in my opinion, is sufficient to make the area of land in question a public road. See City of Keilor v O'Donohue at 363 and Bass Coast Shire Council v King at 23. The 1884 legislation has long since been repealed. But once land is constituted a public road, it retains that character, even if it falls into disuse as a road (unless and until its status as a road is altered by action taken under statute, such as statutory closure of the kind sought by Selpam): cf Everingham v Penrith Municipal Council (1916) 3 LGR(NSW) 74 at 82-83. This land was not merely the subject of a reservation by the Crown as land for road purposes: it was land actually constituted by the Crown as a public road. No roadway was ever formed on the land, but neither that, nor the absence of direct evidence of public user of the road, prevents it having the status of a public road. If the public has the requisite right of passage over the land, it is a highway even though passage is difficult: see Halsbury's Laws of Australia, Vol 14, par 225-565. There was, in any event, evidence before the Tribunal to which I have referred from which public user of the road as such can be inferred; this (if it were required) could well be sufficient evidence of user to show acceptance required at common law, if the area through which this road runs is as isolated as the evidence suggests it may be: cf Attorney-General v City Bank of Sydney (1920) 20 SR(NSW) 216 at 220; Commissioner for Railways v Dangar at 104.

Can native title exist in respect of a public road?

The final question is whether the fact that Part 3 of Selpam's application comprises part of a public road, constituted as such by the Crown acting under legislative authority, is sufficient to extinguish any native title that may previously have subsisted in Part 3.

Extinguishment of native title will result from legislative action, or executive or administrative action under legislative authority, which creates rights in third parties with which the rights comprising the particular native title in question cannot co-exist: Western Australia v The Commonwealth (1995) 183 CLR 373 at 422; Wik Peoples, per Brennan CJ at 85, Dawson and McHugh JJ agreeing; per Toohey J at 126, and 133 of the postscript; per Gummow J at 203; and per Kirby J at 238. Native title does not survive the creation of inconsistent rights unless and until there is an actual exercise of those rights in a way that prevents the exercise of the native title rights: it is the creation of inconsistent rights that is the event that extinguishes native title. See Wik Peoples, per Brennan CJ at 87; per Toohey J at 126; per Gummow J at 185 and per Kirby J at 237-238.

The setting apart by the Crown, under legislative authority, of the land in question for immediate use as a public road is, in my opinion, something quite different, even if no carriageway is constructed on that land, so far as its impact on any native title that may have existed in respect of that land is concerned, from what occurs where the Crown, acting under powers contained in provisions such as s 95 of the Crown Lands Act 1884 and s 334 of the Land Act 1962, reserves from future sale or lease unalienated Crown land which may be required for road purposes in the future. If the Crown merely reserves Crown land from further sale or lease for road purposes, it does not, as I have explained, create rights in third parties. Nor is the Crown's radical title to the land converted by such an act of reservation into full beneficial ownership: Wik Peoples, per Brennan CJ at 86.

I have also explained why the Crown, by acting under the 1884 and 1886 Acts to constitute the land in question as a public road must be regarded as having dealt with its radical title to those lands in such a way as to confer on all members of the public the right to use the land for the purpose of passing and re-passing along it. Infringements of this right are actionable as public nuisances by the Attorney-General, without proof of actual damage, or by individual members of the public, who can prove special damage: Halsbury's Laws of Australia, Vol 14, pars 225-1100 and 225-1115. Attorney-General (ex rel Pratt) v Brisbane City Council [1988] 1 Qd R 346 is a modern example of a relator action brought in respect of a public nuisance constituted by excessive user of a public way.

In my opinion, where the Crown, acting under statutory authority, constitutes wastelands of the Crown as a public road, ie, as a road open to immediate use as such by the public, that is an act that will, in all save an exceptional case, be wholly inconsistent with any continuing right to enjoy native title in those lands; it will be sufficient to extinguish native title for the reason that it is an act that creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any other purpose than free passage or a purpose incidental thereto: see Dymond v Pearce [1972] 1 QB 496, at 502, 508; Director of Public Prosecutions v Jones [1997] 2 WLR 578, per McCowan LJ at 583; and Halsbury's Laws of England, 4th Ed, Vol 21, par 110. It does not matter whether such an appropriation is effective to vest in the Crown the full beneficial ownership in the lands constituted as a public road, although such action would of itself be a sufficient appropriation to the Crown of the lands in which the road has been constituted to convert the Crown's radical title into a form of Crown ownership that would extinguish native title.

There is no ground for thinking that this might be an exceptional case in which the constitution of unalienated Crown land as a public road might not extinguish any native title that existed in the land comprising that road. Mr Fourmile identified with precision the content of the native title to which he makes claim in his application to the Tribunal. He asserts the following native title:

The native title rights and interest which I possess under our system of laws/lores and customs as observed by me, originate from early Yidinji tradition in this region; have evolved, changed, and developed with the Cairns, Edmonton, Yarrabah region, and include:

Ongoing rights to occupy, use, enjoy and determine the future of those lands

Rights and abilities to receive from those lands, safe passage, care, and harvest, regulated and ruled only as our families, peers and I feel most appropriate

Exclusive rights to use and maintain, as our families, peers and I negotiate and deem appropriate, all past and present family knowledge, language, stories, dance, song and ceremony associated with the area.

Rights to develop and make such adaptations and changes to the distribution and implementation of responsibilities, laws, lores and customs as our families, peers and I deem appropriate and will from time to time publicly negotiate through dispute, challenge and debate.

Rights and abilities to make use of any new knowledge derived from our lands and environment, as our families, peers and I deem appropriate.

Rights and abilities for our families and I, where we deem appropriate, to negotiate with non-indigenous authorities and agencies to assist the future care, protection and controlled use of those lands.

Rights and abilities to enforce rights derived under our system of laws, lores and customs, as rights equal to rights derived from Anglo-Australian laws, lores, and customs.

Save for two possible qualifications, it is, in my opinion, obvious that none of the rights which Mr Fourmile says comprise the native title he claims as a member of the Gimuy clan can coexist with the right of user conferred on members of the public by the constitution by the Crown of the land as a public road. The first qualification is in respect of Mr Fourmile's claim to the right and ability of the members of the Gimuy clan of the Yidinji nation to receive from the land safe passage. It is, however, apparent that this is not a claim to the same limited right of user that each member of the public acquired upon the constitution of the land as a public road. Mr Fourmile asserts that his clan's right to receive from the land safe passage is a right "regulated and ruled only as our families, peers and I feel most appropriate". The nature of the right conferred on each member of the public by the constitution of land as a public road was described by Dixon J in Nickells v Melbourne Corporation (1938) 59 CLR 219: "It is not an unlimited right or a right which is independent of the nature of the place constituted a highway. It is a right of passage, and the mode of its enjoyment must accord with the fitness of the place. There are highways and highways, and the public right extends only to a reasonable use according to the character and purpose of the particular way …" (at 225). But if a member of the public uses a highway otherwise than for passage and thereby creates an obstruction, a public nuisance is created: Johnson v Kent (1975) 132 CLR 164 at 174. See also Schubert v Lee (1946) 71 CLR 589 at 594. A right of passage over the road regulated not by considerations of the kind identified in Nickells, but only in accordance with what the clan members consider appropriate, is inconsistent with the right of user conferred on each member of the public by constitution of the land as a road. The second qualification is in respect of the claimed right of members of the clan, at their discretion, to negotiate "with non-indigenous authorities and agencies to assist the future care, protection and controlled use of those lands": this, too, implies a right to fetter, at the discretion of clan members, the right of user of the land as a road conferred on each member of the public by the constitution of that land as a road. Neither of these rights claimed by Mr Fourmile can survive the establishment of the land as a public road.

I therefore consider that the Tribunal was correct in determining that "native title does not exist in relation to … part of Roberts Road …", although for reasons different from those given by the Tribunal.

The validity of the Tribunal's determination in WG 6002 of 1995 of Selpam's application

Mr Fourmile contends that the provisions of the Native Title Act providing for registration of the determination of the Tribunal, in Selpam's favour, on its non-claimant application in the Federal Court and for enforcement of that determination as an order of this Court are invalid, as an impermissible exercise of Commonwealth judicial power. Reliance is placed on Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245.

Resolution of this question involves examination of the provisions of the NTA that govern the making of applications for determinations of native title and of the provisions of the NTA which prescribe the legal effect that such determinations are to have.

Pursuant to s 61 of the NTA, an application can be made under s 13(1) for a determination of native title by, among others, a person claiming to hold the native title alone or with others ("a claimant applicant") or a person who holds an interest in the whole of the area in relation to which the determination is sought ("a non-claimant applicant"). Sections 62, 63 and 64 I think apply only to claimant applications. Once such an application has been accepted, the Registrar must give notice of it in accordance with s 66. It is clear from ss 66(3) and 67 that the Registrar is also obliged to give notice of a non-claimant application, in accordance with s 66, upon receipt of such an application. Pursuant to s 68, any person entitled to receive notice of a claimant or non-claimant application under s 66(2) and (3) and any person whose "interests may be affected by a determination in relation to the application" who notifies the Registrar in writing within two months of the day on which notice under s 66(2) was given of his wish to be a party to the application, thereupon becomes a party. Under s 69, the Tribunal is empowered to determine in a conclusive way whether a person claiming to be a party on the ground that his interests may be affected by a determination in relation to the application, can make out that ground.

Pursuant to s 70, a claimant application is "unopposed" if, at the end of the two month notice period prescribed by s 66(3), the only party is the applicant or if each person who has become a party pursuant to s 68, has notified the Tribunal in writing that he or she does not oppose the application. A non-claimant application "is taken to be unopposed for the purposes of s 70" if it has not been dismissed pursuant to s 67(2), ie, if no one has made, within the two month period of notice prescribed by s 66(3), a claimant application for native title determination, which has subsequently been accepted. It does not matter that there may, as a matter of fact, be opposition to either a claimant or a non-claimant application for a determination of native title: unless the statutory procedures I have referred to are followed by those opposing such an application, it will have the status of an "unopposed" application, for the purposes of the Act. Under s 70, the Tribunal is empowered, in relation to an unopposed claimant application, to:

make a determination in, or consistent with, the terms sought by the applicant if:

(a) the Tribunal is satisfied that the applicant has made out a prima facie case for a determination in those terms; and

(b) the Tribunal considers the determination to be just and equitable in all the circumstances.

If the Tribunal does not make such a determination in relation to a claimant application, s 74 provides that: "the Registrar must lodge the application to the Federal Court for decision".

Section 70(1), which clearly applies to claimant applications, requires the Tribunal, before making a determination that the claim in the application is well-founded, to be satisfied only that the applicant has made out a prima facie case for such a determination. (The Tribunal is also required to satisfy itself that the making of a determination in the terms sought would be just and equitable in all the circumstances.) There is in Div 1 of Pt 3 of the Act no express mention of how the Tribunal is to deal with an unopposed non-claimant application, although s 70(2) assumes that s 70(1) applies to such an application. It is implicit in s 160(1), which applies to both non-claimant and claimant applications under s 61, that the Tribunal, after holding an inquiry in relation to each such application, must make a determination about the matters covered by the inquiry. I therefore consider that s 70(1) prescribes the subject matter of the inquiry that the Tribunal is required by s 160(1) to hold and also the determinations it must make, in respect of both claimant and non-claimant applications.

It is s 139(a) which obliges the Tribunal to hold an inquiry into both kinds of applications. The succeeding sections of subdivision B of Div 5 of Pt 6 regulate the holding of those inquiries. The parties to an inquiry in relation to an unopposed application are the persons who are the parties under s 68: s 141. Subject to the Tribunal's power to make non-disclosure orders and to sit in private, inquiries must be held in public: s 154. For the purposes of an inquiry, the Tribunal may hold hearings: s 151; at which a party to an inquiry has the right to appear: s 152; by a legal representative or other agent: s 143. The Tribunal is empowered to take evidence on oath or affirmation and to summon persons to give evidence and to produce documents: s 156. The Act envisages it may be necessary for the Tribunal, when conducting an inquiry in relation to an unopposed application, to determine contentious questions of law and fact: s 144; and the Tribunal can refer a question of law arising in an inquiry to the Federal Court for a decision: s 145. Moreover, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case: s 142. When it makes its determination in respect of an unopposed application after holding the compulsory inquiry, the Tribunal is required to state in the determination any findings of fact upon which it is based: s 160(2). Section 165, however, provides that a determination of the Tribunal in relation to an unopposed claimant or non-claimant application "is not binding or conclusive".

The procedures established by the NTA for the holding and conduct by the Tribunal of inquiries into and the making of determinations on unopposed applications with respect to native title, together with the powers conferred on the Tribunal for those purposes, substantially mirror the provisions of the Racial Discrimination Act 1975 (Cth) (RDA), in the form it was in at the time of the Brandy litigation, for the holding of inquiries by the Human Rights and Equal Opportunities Commission into complaints of discriminatory conduct in breach of Pt II of that Act and for determinations by that Commission in respect of such complaints. Moreover, the determinations that Commission was empowered to make were declared by s 25Z(2) of the RDA not to be binding or conclusive, just as s 165 of the NTA declares that a determination of the Tribunal, on an unopposed application, is not to be binding or conclusive. It follows from Brandy at 257 and 269 that the holding of an inquiry and the making of a determination by the Tribunal in respect of unopposed applications cannot of itself be seen as the exercise of judicial power.

Subdivision E of Div 5 of Pt 6 of the NTA is important. This subdivision provides for the registration in the Federal Court of Tribunal determinations on unopposed claimant and non-claimant applications. Upon registration, such determinations take effect as if they were orders of the Federal Court: s 167. They must also be recorded in the National Native Title Register: s 193; and notified by the Registrar of the Tribunal to State and Territory land titles offices in which are kept registers of interests in land: s 199. The effect given to a Tribunal determination by registration in the Federal Court is subject only to the provisions of ss 167 and 168 that deal with review by the Federal Court of such Tribunal determinations at the behest of a party to a determination. I do not think there is any significant difference between the scope of the review of a Commission determination which the Federal Court was empowered to conduct under s 25ZAC of the RDA and the review of a Tribunal determination which that Court is empowered to conduct by s 168 of the NTA: both sections provide for a review, at the discretion of the Court, of "all issues of fact and law" and new evidence cannot be received in the review without the leave of the Court. Under neither section does the Court conduct a hearing de novo. Both provisions treat a registered determination as something that can have operative effect quite apart from any action taken by the Court on a review. For example, the Court is empowered by both provisions to "confirm" a registered determination, as well as to make its own decision in place of the determination, and it can dismiss an application for review at any time, if it is not being diligently prosecuted, with the result that it is the registered determination and not a Court order which has operative effect. Section 168(3) of the NTA, for which there is no counterpart in the RDA, deals only with how the Court is to conduct the review of a registered determination of the Tribunal, without making its essential character as a review of all issues of fact and law any different from the review which the Court was empowered to conduct of Commission decisions under the RDA. All these provisions, which comprise subdivision E of Div 5 of Pt 6 of the NTA, are not materially different from ss 25ZAA, 25ZAB and 25ZAC of the RDA, in the form that Act was in at the time of the litigation in Brandy.

In Brandy, Deane, Dawson, Gaudron and McHugh JJ held, at 271, that these registration and enforcement provisions of the RDA "which combine to make a determination of the Commission binding, authoritative and enforceable, invalidly purport to invest judicial power in the Commission". Their reasons for this conclusion appear at 269-270:

… it is apparent that the Commission's functions point in many respects to the exercise of judicial power. It decides controversies between parties and does so by the determination of rights and duties based upon existing facts and the law as set out in Pt II of the Racial Discrimination Act.

Moreover, the remedies which the Commission may award include damages as well as declaratory or injunctive relief and, according to whether they may be viewed as punitive or otherwise, make its functions closely analogous to those of a court in deciding criminal or civil cases.

However, if it were not for the provisions providing for the registration and enforcement of the Commission's determinations, it would be plain that the Commission does not exercise judicial power. That is because, under s 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is, we think, reversed by the registration provisions.

Under s 25ZAA registration of a determination is compulsory and under s 25ZAB the automatic effect of registration is, subject to review, to make the determination binding upon the parties and enforceable as an order of the Federal Court. Nothing that the Federal Court does gives a determination the effect of an order. That is done by the legislation operating upon registration. The result is that a determination of the Commission is enforceable by execution under s 53 of the Federal Court Act. It is the determination of the Commission which is enforceable and it is not significant that the mechanism for enforcement is provided by the Federal Court.

The other members of the Court, Mason CJ, Brennan and Toohey JJ, expressed a similar view. Save that the Tribunal in determining an unopposed native title application does not resolve a dispute between contending parties, everything said here about the Human Rights and Equal Opportunities Commission is applicable to the functions of the Tribunal in making an unopposed determination: it determines rights on the basis of facts found by it to exist (or rather facts sufficiently demonstrated to exist as to show a prima facie case) and the application by it to those facts of the legal principles, including the common law rules, referred to in s 223 of the NTA. Its determination, once registered in the Federal Court and without any action being taken by that Court, takes effect as a judgment in rem as to the existence or non-existence of native title and is to be enforceable as such a judgment: see Wik Peoples v State of Queensland (1994) 49 FCR 1 at 6-8 and s 167(2) of the NTA.

There is no significant difference between the provisions of the RDA governing review by the Federal Court of a registered decision of the Commission and the provisions of the NTA for review by this Court of a registered determination of the Tribunal in an unopposed native title application. The only significant difference between the functions of the Commission with respect to complaints of conduct contravening Pt II of the RDA and the functions of the Tribunal with respect to unopposed native title applications is, as I have said, that the Tribunal has no power to make a determination on any controversy between contending parties as to whether native title does or does not exist in the subject lands: with unopposed applications, which is all the Tribunal can determine, there can be no party advancing a case that contradicts that put forward by the applicant. The absence of a controversy between contending parties that has to be resolved by determination of the Tribunal is an important indication that the Tribunal may not be exercising judicial power when it makes a determination in an unopposed application in respect of native title under s 70: see Brandy at 258 and 267-268. But that, in my opinion, is insufficient to save subdivision E of Div 5 of Pt 6 of the NTA from invalidity. Even though a determination under s 70 does not of itself involve the exercise of judicial power because it is non-binding, the provisions of that subdivision of the NTA "[go] beyond providing the machinery for the enforcement of a determination. [They purport] to give a registered determination effect 'as if it were an order made by the Federal Court'". In Brandy, Mason CJ, Brennan and Toohey JJ said, at 260:

A judicial order made by the Federal Court takes effect as an exercise of Commonwealth judicial power, but a determination by the Commission is neither made nor registered in the exercise of judicial power. An exercise of executive power by the Commission and the performance of an administrative function by the Registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination. Thus, s 25ZAB purports to prescribe what the Constitution does not permit.

Section 25ZAB is not materially different from s 167 of the NTA. By cloaking otherwise non-binding determinations of the Tribunal with the status and enforceability of orders of the Federal Court, subdivision E of Div 5 of Pt 6 of the NTA purports to give those determinations an effect that can only be achieved by the exercise of judicial power. In my opinion, all those provisions of the NTA, including the review procedure, are therefore invalid. Cf Brandy at 264 and 271. No question can arise as to the application of s 208 of the NTA or of s 15A of the Acts Interpretation Act 1901 (Cth). The result is that there is no procedure in the Act whereby anything other than opposed claimant and non-claimant applications, which can only be determined by this Court, can lead to legally binding determinations as to the existence or non-existence of native title.

I would declare that subdivision E of Div 5 of Pt 6 of the NTA is invalid and I would also declare that the decision of the Tribunal upon Selpam's non-claimant application for a determination of native title is incapable of having any effect in law, notwithstanding its registration under s 166 of the NTA. It is unnecessary, however, to consider the validity of s 70 or whether the Tribunal's determination should be set aside, since Mr Fourmile only challenges the validity of the Tribunal's decision on Selpam's non-claimant application, once registered.

The validity of the Tribunal's rejection of Mr Fourmile's claimant application in WG 6003 of 1995

In terms, Mr Fourmile's own application to the National Native Title Tribunal was limited to Lot 25 and the small portion of Roberts Road on the southern boundary of that Lot, ie, to the land "described in non-claimant applications by Selpam Pty Ltd".

The statutory procedures for the making of claims for determinations of native title were, as the High Court acknowledged in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 614, drafted to provide for a procedure to be used by persons who include those who may be unfamiliar with the issues that need to be dealt with in such an application. The scheme of the NTA is to prescribe requirements that must be complied with by an application for a determination of native title, but also to cast duties on those responsible for dealing with such an application to ensure that a claimant for native title is given proper opportunity to remedy deficiencies in his application. See, eg, s 63(1), (2) and (3) and s 64(1) and (2) of the NTA. It is to be expected that the Registrar and the President will, on occasion, have to interpret applications for determinations of native title in order to form a view on just what is the subject matter of the claim. The need to do this will arise whenever an application is reasonably open, in that respect, to more than one reading; in each such case the Registrar and the President will also have to follow the procedures in the NTA designed to ensure that the claimant is not disadvantaged by any want of precision in his application.

It was submitted, in reliance on North Ganalanja Aboriginal Corporation at 623, that the President, in directing, pursuant to s 63(3)(c) of the NTA, that Mr Fourmile's application not be accepted, effectively determined, in a final way, that Mr Fourmile did not have the native title rights claimed and in particular that, in so far as the President rejected Mr Fourmile's claim in respect of the portion of Roberts Road, he made a decision adverse to Mr Fourmile that was based on a contested view of the law and which determined the application and deprived him of the opportunity to have the application judicially determined: it was said that the President had therefore purported to exercise Commonwealth judicial power, which he had no authority to do.

I reject these submissions. All the President did was apply to the application, as he was entitled to interpret it, a well-settled principle of law that required rejection of the application as one lacking any arguable foundation.

The High Court, in North Ganalanja Aboriginal Corporation, in my opinion, acknowledged that, provided he acted within the confines of s 63 properly construed, the President could form an opinion that, prima facie, a claim for a determination of native title could not be made out and could, in consequence, direct the Registrar not to accept the application, all without intruding into the field of Commonwealth judicial power: the President does not exercise judicial power in determining, pursuant to s 63(3), that, prima facie, a claim to native title cannot be made out and, in consequence, giving a direction to the Registrar not to accept the application, if he confines his investigation to the materials furnished by the applicant in support of the application, including any supplementary material provided by the applicant in response to Presidential advice received pursuant to either s 63(3)(a) or s 64(2)(a), and if he also limits his assessment of that material to determining whether or not the applicant has a fairly arguable case, in fact or law, to the native title claimed. The President did not go beyond that, in dealing with Mr Fourmile's application.

The High Court pointed out, in the North Ganalanja Aboriginal Corporation case, the President there had intruded into the area of Commonwealth judicial power by soliciting and then considering information provided by third parties with respect to the applicant's claim and forming a view on contested facts that the claim could not be made out, saying, at 622:

The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s 63 …

It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised. But the Act reserves to the Federal Court the jurisdiction, exclusive of the jurisdiction of all other courts except the High Court, to hear and determine opposed applications …

When that direction [not to accept an application] is given in consequence of a conclusion fatal to the claim which the presidential member has reached by steps that correspond with the steps that the Federal Court would take to determine such an application, the presidential member is performing a function that is reserved to the Federal Court. The purely administrative function to be performed by the Presidential member under s 63(3) is misconceived. If a direction not to accept the application is given under s 63(3)(c) because of findings made after an adversarial hearing or because of a ruling given on contested propositions of law that are fairly arguable, the direction is invalid …

In the present case, the President conducted what amounted to a trial, found the facts and ruled on the law. In substance, he did not conclude that the applicants could not make out a prima facie claim; his conclusion was that, whatever case the applicants might make, they would fail by reason of the granting of a pastoral lease … Without being invested with relevant judicial power, the President effectively determined the application which otherwise might have been resolved by agreement between "parties" to the application or by determination by the Federal Court.

But the Court recognised that the President, as the repository of the administrative power validly conferred on him by s 63(3)(c), does not exercise judicial power if he confines his determinations on matters of fact and law to whether the applicant has shown a case that is fairly arguable. And the High Court said, at 628:

As experience in the working out of the relevant principles is gained, certainty will reduce the points that are fairly arguable.

If one thing is already certain in the area of native title law, it is that native title cannot subsist in land the subject of an existing freehold grant. It may be that there is no binding decision of a majority of the High Court to this effect. But so many members of the Court have so frequently and so recently expressed the considered opinion that this is the law that there is, in my opinion, no room for doubt. See Mabo (No 2), per Brennan J at 69, with Mason CJ and McHugh J agreeing; per Deane and Gaudron JJ at 110; Western Australia v The Commonwealth, per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 422 and Wik Peoples, per Brennan CJ at 95, with Dawson and McHugh JJ agreeing; per Gaudron J at 135; per Gummow J at 176 and per Kirby J at 238 and 250. That freehold grants in respect of land in Australia made since 1842 have all been creatures of statute casts no doubt on this proposition: when various of these members of the High Court have spoken of the extinguishing effect of freehold grants, they have, on occasion, done so in judgments acknowledging the statutory basis for such grants. See Wik Peoples at 91, 140, 173-174 and 227.

The President was entitled, without exceeding his administrative authority, as a result of Mr Fourmile's failure to correct his understanding of the purport of Mr Fourmile's application, to form the opinion that, in so far as the application extended to the portion of Roberts Road, prima facie it could not be made out because it was dependent upon Mr Fourmile making out a claim of native title to Lot 25. This was something Mr Fourmile did not attempt to do and could not do, given that Lot 25 was the subject of a freehold grant.

I would therefore dismiss Mr Fourmile's appeal in WG 6003 of 1995.

I certify that this and the preceding thirty-two (32) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

QUEENSLAND DISTRICT REGISTRY WAG 6002 of 1995

BETWEEN: henrick fourmile

queensland registry WAG 6003 of 1995

REASONS FOR JUDGMENT COOPER J Proceeding WAG 6002 of 1995 Selpam Pty Ltd ("Selpam") is the registered proprietor of an estate in fee simple in all the land contained in Certificate of Title N64139 Volume 403 Folio 189. The land is described in the Certificate of Title as :- " ... All that piece of Land situated in the County of Nares Parish of Grafton containing one hundred and sixty acres Exclusive of 3 acres reserved for road purposes more or less, as shown on the Plan hereon, and therein edged red, Being Portion 25V which said piece of Land is the whole of the portion marked 25V delineated in the Public Map of the said parish deposited in the Office of the Surveyor-General, originally granted by Deed of Grant No N4919 Saving Always to the Crown all the rights and interests reserved to it by the said Deed of Grant." The plan on the Certificate of Title shows the southern boundary of the land abutting a road. Selpam is also the registered proprietor of an estate in fee simple in all that land described as Lot 1 on Registered Plan No 720151 being the land contained in Certificate of Title Volume N681 Folio 105. This land is south of Portion 25V and abuts the same roadway along its northern boundary. The plan on the Certificate of Title shows the road abutting the northern boundary. The roadway between these two parcels of land, Roberts Road, is not fully formed or constructed along its entire length and Selpam applied under s 363 of the Land Act of 1962 (Qld) ("the Act of 1962") to close so much of the road as was unconstructed. The area the subject of the road closure application was described as :- "Commencing at a point a [sic] bearing of 270°03' for a distance of 105 metres from the most north eastern corner of Lot 1 on RP 720151 thence on a bearing of 270°03' for a distance of 240m thence on a bearing of 323°33' for a distance of 25.025m thence on a bearing of 90°03' for a distance of 254.88m thence on a bearing of 180°03' for a distance of 20.155m back to the point of commencement containing an area of 4,978m˛." By application QN94/4 to the National Native Title Tribunal, Selpam sought non-claimant native title determinations in respect of the freehold lands Portion 25V (Part 1), the floating reservation for road purposes of the three acres within Portion 25V (Part 2), and the area the subject of the proposed road closure (Part 3). On 18 January 1995 the Honourable Fred Chaney, a member of the National Native Title Tribunal, made the following determination :- "I, FRED CHANEY, a Member of the National Native Title Tribunal make the following determination pursuant to s 70 of The Native Title Act 1993: Native title does not exist in relation to the following: 1. The whole of the land reserved for road purposes within original Portion 25V, being approximately 1.21 ha or 3 acres. 2. The whole of the land contained in Certificate of Title N 403 Folio 189 being Lot 25 Plan N 157475, County of Nares, being approximately 64.75ha or 160 acres. 3. Part of Roberts Road adjoining land described as lot 1 on RP 720151 and Lot 25 on Plan N 15745, Parish of Grafton, County of Nares, City of Cairns, State of Queensland." The determination was registered in the Western Australia District Registry of this Court on 19 January 1995 pursuant to s 166 of the Native Title Act 1993 (Cth) ("the NTA"). On 16 February 1995, the applicant, Henrick Fourmile, by application number WAG 6002 of 1995 sought review of the determination under s 167 of the NTA. The grounds relied upon by Mr Fourmile in his amended application were :- "1. The Tribunal erred in law in concluding that the reservation of the land under the Land Act 1962 (Queensland) comprising part of Roberts Road which was never constructed vested beneficial ownership of that land in the Crown which was wholly inconsistent with the continued enjoyment of the rights and interests of any prior native title holders. 2. The determination of the Tribunal upon registration pursuant to the Native Title Act 1993 (Cth), Sub-Section 166(3) and as a consequence of the operation of Sub-Section 167(1), having been made pursuant to Section 160 in respect of an Application under Section 61 of the kind set out in Section 70, comprises an exercise of judicial power by a body other than a federal court, contrary to Section 71 of the Constitution of the Commonwealth of Australia." Ground One The matter was argued before Mr Chaney on the basis that s 362(4) of the Act of 1962 operated with respect to the land the subject of the road closure application. That subsection provides :- "(4) The ownership of land comprised in all roads opened or dedicated under this section or opened or dedicated under the repealed Acts shall be and remain vested in the Crown". Mr Chaney came to the conclusion that s 362(4) had the effect of vesting in the Crown full beneficial ownership of the land the subject of the road closure application. To reach this conclusion it appears that Mr Chaney accepted a submission on behalf of the State of Queensland that registration and deposit of a plan of survey delineating the road in issue in May 1891 (Annexure "F" to the Tenure History Report) operated as a dedication of the road for public purposes by virtue of the operation of s 362(2) of the Act of 1962. That subsection provides :- "(2) Crown land may also be dedicated as a road for public use upon and by the registration and deposit in the Office of the Surveyor-General of a plan of survey which exhibits distinctly delineated thereon the land thereby dedicated as such road." On the hearing of the review before this Court, counsel for Mr Fourmile argued that s 362 had no relevant operation with respect to the area of road which was the subject of the road closure application. It was submitted that the area was not dedicated as a road under the Act of 1962 or any of the repealed Acts contained in the schedule to it. Accordingly, it was submitted, as the land had not been opened or dedicated as a road under Statute and as the State of Queensland could not prove the creation of the road at common law by dedication for public use and acceptance by the public by use of it as a road, the land in question remained vacant Crown land subject to common law native title. It was not argued by counsel for the State of Queensland that the lodgement in March 1965 of the plan of subdivision for Lot 1 of Registered Plan 720151 delineating, as it does, the area of the road in question constitutes a dedication of the road for the purposes of s 362(2) of the Act of 1962. Accordingly, I express no opinion on that question. Nor did counsel for the State of Queensland seek to argue that s 362(2) or s 362(4) had a relevant operation with respect to the land in issue. Rather, it was submitted that the conclusion reached by Mr Chaney was correct because, on the available evidence, the road was in fact dedicated as a road for public purposes or, at a minimum, reserved for public purposes as a road. In either event, it was submitted, the beneficial interest in the land comprised in the area the subject of the proposed road closure was vested in the Crown in right of the State of Queensland as owner. The vesting of that beneficial interest, it was submitted, was inconsistent with the survival of any native title involving the rights, interests and incidents claimed by Mr Fourmile. The native title rights which Mr Fourmile claims as a member of the Gimuy Clan of the Yidinji Nation in respect of lands which include the land the subject of the proposed road closure, are :- "1. Ongoing rights to occupy, use, enjoy and determine the future of those lands. 2. Rights and abilities to receive from those lands, safe passage, care, and harvest, regulated and ruled only as our families, peers and I feel most appropriate. 3. Exclusive rights to use and maintain, as our families, peers and I negotiate and deem appropriate, all past and present family knowledge, language, stories, dance, song and ceremony associated with the area. 4. Rights to develop and make such adaptations and changes to the distribution and implementation of responsibilities, laws, lores and customs as our families, peers and I deem appropriate and will from time to time publicly negotiate through dispute, challenge and debate. 5. Rights and abilities to make use of any new knowledge derived from our lands and environment, as our families, peers and I deem appropriate. 6. Rights and abilities for our families and I, where we deem appropriate, to negotiate with non-indigenous authorities and agencies to assist the future care, protection and controlled use of those areas. 7. Rights and abilities to enforce rights derived under our system of laws, lores and customs, as rights equal to rights derived from Anglo-Australian laws, lores, and customs." The question is whether, assuming the native title claimed by Mr Fourmile existed prior to acquisition by the Crown of sovereignty over and radical title in the land in issue, there has been a valid exercise of sovereign power in respect of that land inconsistent with the continued existence of the rights and privileges claimed by Mr Fourmile. If there has been such an exercise of sovereign power, the native title claimed by Mr Fourmile has been extinguished to the extent of the inconsistency: Mabo v Queensland [No 2] (1992) 175 CLR 1 at 69. For present purposes, the first relevant dealing with the land abutting the land the subject of the proposed road closure occurred on 23 October 1890. On that date the Governor in Council, by proclamation published in the Queensland Government Gazette of 1 November 1890 acting under the Crown Lands Acts 1884 to 1886 (Qld), ordered that :- "... the operation of so much of the forty-third section of the said Principal Act as requires the land to be actually surveyed and marked on the ground before it is proclaimed open for selection be suspended with respect to the land described in the said Schedule: And the Surveyor-General is hereby required to divide the said land into lots and to indicate the position of such lots on proper maps or plans. And the Honourable the Secretary for Public Lands is to give the necessary directions herein accordingly. ... THE SCHEDULE The Crown lands in the following Land Agents' Districts :- District Locality Cairns ... ... ... The Parish of Grafton Ditto ... ... ... The Parish of Trinity Cooktown ... ... ... The Parish of Hann "

The "Principal Act" referred to in the proclamation was The Crown Lands Act of 1884 ("The Act of 1884"), the long title of which was "An Act to make better Provision for the Occupation and Use of Crown Land". The Act of 1884 took effect on 1 March 1885. Part IV of the Act of 1884 made provision for agricultural and grazing farms. The Act of 1884 provided :- "41. The Governor in Council, on the recommendation of the Board, may by Proclamation define and set apart any Country Lands as Agricultural Areas. 42. The Governor in Council, on the recommendation of the Board, may by Proclamation declare any Country Lands to be open for selection under the provisions of this Part of this Act, and may by like Proclamation, on the like recommendation, withdraw any such lands from being so open. 43. Before any land is so proclaimed open for selection it shall be surveyed under the direction of the Surveyor-General and divided into lots of convenient area for selection, with proper roads and reserves for public purposes, and such lots shall be marked on the ground by posts not less than three feet in height at the corners of the lots. 44. With respect to land which, before the passing of this Act, had been proclaimed open for selection or for sale by auction under the provisions of 'The Crown Lands Alienation Act of 1876,' or any Act thereby repealed, and as to which it is practicable to divide the land into lots without actual survey, and to indicate the position of such lots by means of maps or plans, and by reference to known or marked boundaries or starting points, the following provisions shall have effect :- (1) The Governor in Council on the recommendation of the Board may suspend the operation of so much of the last preceding section as requires the land to be actually surveyed and marked on the ground before it is proclaimed open for selection, and may require the Surveyor-General to divide the land into lots, and to indicate the position of such lots on proper maps or plans; (2) The land may thereupon be proclaimed open for selection in the same manner as if it had been surveyed, and the delineation of the lots on the maps or plans shall be deemed to be a survey thereof, and the lots shall be deemed to be surveyed lots for the purposes of this Part of the Act; (3) The powers conferred by this section may be exercised at any time within two years after the commencement of this Act, but not afterwards." In 1886, by s 13 of The Crown Lands Act Amendment Act of 1886 (Qld) ("the Act of 1886"), the power contained in s 44 of the Act of 1884 was thereafter exerciseable in respect of any Country Lands, as defined, where it was practical to divide the land into lots without actual survey. Additionally, the two year limitation period in s 44(3) of the Act of 1884 was repealed. Section 49 of the Act of 1884 provided :- "49. Any person desiring to select Crown lands under this Part of this Act must lodge with the Land Agent an application in the prescribed form, and must himself or by his duly constituted attorney sign the entry of his application in the register of applications. The application must be for a lot as surveyed, and must refer to it by its number as specified in the Proclamation. The application must be accompanied by the full amount in cash of the first year's rent together with the survey fee. Applications shall take priority according to the order of their being lodged with the Land Agent. Provided that if two or more applicants shall be present at the time of opening the Land Agent's office the applications lodged by them shall be deemed to be lodged at the same time. In such case the right of priority shall be determined by lot in the prescribed manner." Where a lot was opened for selection under s 44 of the Act of 1884, the survey fee payable was that fixed provisionally pending survey together with such additional sum as may have been necessary to cover the actual cost of survey when that occurred: Regulation 35 of the Regulations made under the Act of 1884. By s 15(4) of the Act of 1886 the survey fee was payable by instalments of one-fifth of the specified amount, rather than as a lump sum. The Tenure History Report before Mr Chaney discloses that, after directing the Surveyor-General to divide the Crown lands in the Land Agents' District of Cairns, Parish of Grafton into lots and to indicate the position of those lots on maps, certain lands, including Lot 1 being Portion 24V, Parish of Grafton were declared by the Governor in Council on 23 October 1890 open for selection under the provisions of The Crown Lands Acts 1884 to 1889 on and after 1 December 1890. The area of Lot 1 was 160 acres and the provisional survey fee was Ł17.10.0. On 1 December 1890, Henry Miller applied in writing in the prescribed form, under the provisions of the Act of 1884, to the Land Agent at Cairns to become the lessee of the Crown lands described in the schedule as an agricultural farm. The application was in respect of Part 24V, County of Nares, Parish of Grafton. Mr Miller tendered with his application the first year's rent (Ł4.0.0) and Ł3.10.0, being one-fifth of the provisional survey fee. The application was endorsed as conditionally approved on 5 December 1890. Annexure "F" to the Tenure History Report is a copy plan of survey headed :- "SELECTOR Henry Miller No of Selection AF310 POR 25V" The survey also carried the endorsement :- "Surveyed under written instructions from Surveyor-General No - dated 5-12-1890. Transmitted to the Surveyor-General with my letter No 10/91 dated 18 May 1891." The survey shows Portion 25V to the west of Portions 21 and 20, to the south of Portions 22 and 305 and with a south boundary abutting a one chain road from the west to the east and thence south-east, the road abutting the northern boundaries of Portions 172 and 104. The survey plan bears the plan catalogue number N157475B. Annexure "F" also includes a plan of Portion 25V identified as Agricultural Farm No 310, surveyed by Thomas Behan, 18 May 1891. The plan has the name "H Miller" printed across Portion 25V and shows the road abutting the southern boundary of that portion and the northern boundaries of Portions 172 and 104. On 17 September 1891 a licence to occupy Portion 25V, also known as Agricultural Farm No 310 Cairns District, issued to Henry Miller under and subject to the conditions of the Act of 1884. One of the conditions of the licence to occupy was that the selector, Mr Miller, continuously occupy the land by personal residence of himself or his registered agent. Subject to the selector enclosing the land by fencing or making improvements to the value of the fencing within five years of the date of the licence, the selector was entitled to a lease of the land for a term of fifty years (s 57 and s 58 of the Act of 1884). Thereafter during the period of the lease, and subject to compliance with the provisions of s 73 of the Act of 1884, the selector could apply to acquire the freehold of the Agricultural Farm. Henry Miller purchased his farm and, on 14 February 1898, a Deed of Grant (N4919) issued in his favour for :- "All that Piece or Parcel of Land in Our said Colony containing by admeasurement one hundred and sixty Acres be the same more or less situated in the County of Nares and Parish of Grafton Portion Twenty-five V Being the Land selected as Agricultural Farm No 310 Cairns District Commencing at the North west corner of portion Twentyone and bounded thence on the East by that portion and portion Twenty bearing South thirtyseven chains and sixtynine links on the South west and South by a Road bearing three hundred and fifteen degrees sixteen chains and eleven links and West fortyeight chains and twelve links on the West by a line bearing North twentysix chains and thirty links and on the North by a line and portion Twentytwo bearing East fiftynine chains and fiftyone links to the point of commencement - Exclusive of three acres reserved for Road purposes as shown on Plan of Survey deposited in the Surveyor-General's Office, with all the Rights and Appurtenances whatsoever thereto belonging but not including any part of the soil of the said Road." The Deed of Grant included a plan drawing of the land the subject of the grant showing that its southern boundary abutted a road. The drawing indicated a scale of twenty chains to the inch and cited Plan Cat No N157475B. By transmission by death the freehold estate passed to Christine Miller and upon her death to the Public Curator of Queensland as administrator. The Council of the Shire of Mulgrave acquired the freehold estate in 1947 pursuant to s 27 of the Local Government Act of 1936 (Qld) and thereupon the title contained in Deed of Grant N4919 volume 117 folio 221 was fully cancelled and a new Certificate of Title for an estate in fee simple, No N64139 Volume 403 Folio 189, issued in favour of the Council for Portion 25V. This Certificate of Title also has a plan of Part 25V abutting a road at its southern boundary. The land is described as the whole of the portion marked 25V delineated in the Public Map of the Parish (Grafton) deposited in the office of the Surveyor-General originally granted by Deed of Grant No N4919. It was the title to the land in this Certificate of Title to which Selpam became the registered proprietor of an estate in fee simple on 8 July 1992. In 1986 the description of the land contained in Certificate of Title N64139 Vol 403 Folio 189 was converted to "Lot 25 on Plan No N157475". That change is recorded on the face of the copy plan N157475B, Annexure "F" to the Tenure History Report. The material shows that Portion 25V was surveyed after earlier subdivision of land to the north-east, east and south of it. The parish plan, which was before Mr Chaney, shows that Portions 19 and 22 were surveyed as part of a survey and laying out of portions running west from the North Coast Stock Route which is shown on the map as the Bruce Highway. This survey was registered as N.157.38. Portion 104 is shown as having been previously subdivided twice, with resubdivisions 1 and 2 of subdivision 1 of portion 104 having frontages to the road in issue along their northern boundaries. Portions 20 and 21 are shown to have been surveyed by registered survey N.157.372 with Portion 21 being Agricultural Farm 36, held by T Lynch. It is apparent from a perusal of Plan N157.475 and the parish map that the road, now known as Roberts Road, was shown on previous survey maps and formed a boundary road between Portions 19, 20 and 104 and came at least to what became the south-eastern corner of Portion 25V. Whether or not the road was extended upon the resubdivisions of Portion 104 to give the subdivided lots road access along their northern boundaries is impossible to determine from the material. However, the placement of the road to the north of the boundaries of Portion 19 and Portion 104 in the earlier subdivisions required that Portion 25V be sited to the north of any existing roadway, or sufficiently to the north to allow the existing roadway to be extended to provide access across the southern boundary of Portion 25V, and to provide for future road access to any opening up of the land west of Portion 25V. That is what appears on the plan where the road is shown as proceeding to the south-western corner of Portion 25V where it meets land without any indication of that land having been previously surveyed. The reasonable inference, having regard to the survey plan N157.475 and the parish map, is that Roberts Road was extended to what became the western boundary of Portion 25V when it was set out by the Surveyor-General in response to the Order in Council of 23 October 1890. There was no other way to provide access to Portion 25V and it was the obvious course to adopt when Roberts Road at that time was already part of a web of interlocking roads providing access between land holdings and to the main northern highway. The effect of sections 43 and 44 of the Act of 1884 was to require that proper roads be provided to the lots for selection. If the extension of Roberts Road did not already exist as a result of prior dealings with the other lots shown on the survey plan and parish map, then the road was for the totality of its length across the southern boundary of Portion 25V dedicated by statutory authority of the Act of 1884 as amended by the Act of 1886. Further, the subsequent grant of freehold interest in the land now held by Selpam was a Crown grant of a freehold estate with road frontage as shown on the relevant Deed of Grant or Certificate of Title. That the road fronting Selpam's land was dedicated as a public road is clear from the fact that it was an extension of an existing road which itself formed part of a system of public roads for use by the public as a means of moving within and beyond the parish. The land the subject of the application for road closure is but a part of the entire road dedicated by the Crown and is not properly to be considered in isolation from the remainder of the road for determining the issues in suit. The land the subject of the proposed road closure and the non-claimant declaration is only a small part of the roadway which abuts the southern boundary of Portion 25V. It is the unmade part. So far as the evidence goes the roadway to the east and west of it is a formed roadway. It is not essential to the creation of a highway that it be formed or be capable of being formed. Once a road has been properly created it is irrelevant that it is in whole or in part rough, difficult to traverse on foot or by vehicle or indeed impassable: Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 415 - 416, 420; Lawson v Weston (1850) 1 Legge 666 at 670. The right of the public which arises upon the creation of a public road or highway is a common law right of free passage to pass and repass along the roadway: City of Keilor v O'Donohue (1971) 126 CLR 353 at 363; Frencham v Melbourne and Metropolitan Board of Works [1911] VLR 363 at 367. The establishment of a public road does not create an easement in favour of a member of the public thereby investing that member with an estate or interest in the land which constitutes the road: Re Innes (1891) 12 LR (NSW) L 180 at 183. Ownership of land dedicated as a road does not pass at common law and the grantor retains all rights of ownership not inconsistent with public user: City of Keilor v O'Donohue at 369. Therefore, subject to any relevant statutory enactment to the contrary, dedication of a road by the Crown does not disturb the Crown's ownership of the land constituting the grant. The owner from time to time of land abutting a road has private rights which attach as incidents which pass with ownership of the land. They are rights in addition to that person's right as a member of the public to use the road and are different to the public rights of user: Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 at 108 - 109. They are private property rights: Shellharbour Municipal Council at 109; Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1061; Walsh v Ervin [1952] VLR 361 at 362. The owner of adjoining land has a right to free and uninterrupted access to the public roadway from any point of the land contiguous with the road and from the road to any point of the land contiguous with the road: Eggar v Commissioner of Main Roads [1979] QdR 501 at 502; Shellharbour Municipal Council at 108. - 109. The owner of adjoining land is entitled to remove obstructions which interfere with the common law right of access to the land and interference may found an action for damages or for an injunction for public or private nuisance: Shellharbour Municipal Council at108 - 109; Walsh v Ervin at 362 - 363. The common law rights which are held by the owner of adjoining property may not be taken away or interfered with, without express statutory authority: Bartzios v Leichhardt Municipal Council [1978] 1 NSWLR 7 at 11; D'Arcy v Municipal Council of Inverell (1925) 25 SR (NSW) 102 at 107 - 108. So far as is relevant for present purposes, Deed of Grant N4919 to Henry Miller created in him and his successors in title private property rights to access or exit his land at any point on the roadway adjoining Portion 25V whether or not the roadway was made and whether or not access was practically possible. Similarly, from the time of the original Deed of Grant of the land, which is now described as Lot 1 on Registered Plan No 720 151, Certificate of Title Volume N681 Folio 105, the owner of that land held similar private rights of access to the road. The creation by the Crown of public rights of user through dedication of the road as an extension of Roberts Road to provide for public access to the lands abutting the road and to provide access to the lands west of Portion 25V, together with the creation of private rights in the owners from time to time of the adjoining lands, is consistent with the Crown having exercised its sovereign power to appropriate to itself a plenary title to the land in order to use it for a public purpose, namely to create public roads with their attendant public and private common law rights. Appropriation by the Crown of the land constituting the road and the creation of the rights of user are inconsistent with the common law rights of native title claimed by Mr Fourmile and set out earlier in these reasons. Any native title rights which previously existed in the roadway, including the roadway the subject of the road closure application by Selpam, have been extinguished: The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 91 - 92. The conclusion reached by Mr Chaney was correct, notwithstanding that his reliance on s 362(2) of the Act of 1962 was in error. Ground Two The statutory scheme for the registration of determinations of the Tribunal in respect of non-claimant applications in this Court is set out in the reasons of Drummond J. The effect of that scheme is in no relevant way distinguishable from the scheme provided for under the Racial Discrimination Act 1975 (Cth) whereby determinations of the Human Rights and Equal Opportunity Commission were registered and took effect as orders of this Court. The reasoning which led the High Court to conclude in Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245 at 259 - 260, 269 - 271 that the scheme was invalid because it purported to invest judicial power in the Commission is equally apposite to the Tribunal in the instant case. The consequence is that the only determinations as to the existence of native title which may be validly made under the NTA are opposed applications which are dealt with in this Court. Subdivision E of Division 5 of Part 6 of the NTA is invalid. Thus, determinations of unopposed claimant and non-claimant applications cannot be registered and given effect as orders of this Court. This is a consequence which the submission indicated was fully understood and intended: see appeal transcript pp 45 - 46. I would uphold the application for review in respect to the challenge to the validity of the determination and the effect of its registration in this Court. I would declare that Subdivision E of Division 5 of Part 6 of the NTA is invalid. Proceeding WAG 6003 of 1995 On 22 July 1994, Mr Fourmile lodged a claimant application in respect of "the area of land described in the non-claimant applications of Selpam." The claim thus covered the freehold land originally described as Portion 25V, but now described as Lot 25 on Plan N157475, so much of that land as constituted the reservation of three acres within that land for road purposes and that part of the extension of Roberts Road as was the subject of the road closure application. The application was referred to the President of the Tribunal by the Registrar under s 63(2) of the NTA. The President wrote to Mr Fourmile expressing the view that, prima facie, Mr Fourmile's claim could not be made out as much of the area claimed was covered by a grant of freehold title. The President, pursuant to s 63(2)(a) of the NTA, invited Mr Fourmile to respond within fourteen days with written submissions to satisfy the President that a prima facie claim could be made out. The invitation was not taken up by Mr Fourmile. Consequently, on 27 September 1994, the President directed the Registrar not to accept the claim and, on 30 September 1994, Mr Fourmile was advised accordingly. On 3 March 1995 Mr Fourmile lodged an appeal under s 169(2) against the rejection of his claim. The appeal was lodged out of time and after the determination of Mr Chaney in favour of Selpam's non-claimant application. On 21 April 1995 the time for the bringing of the appeal was extended until 3 March 1995. Mr Fourmile appealed from the decision of the President on the following grounds :- "1. The President erred in law in concluding that prima facie a claim by the Applicant could not be made out because native title had been extinguished by the grant of freehold over much of the area under claim. 2. The Registrar erred in law in forming an opinion that prima facie the claim of the Applicant did not meet the requirements of Section 63 of the NTA - (a) in respect of land reserved under the Land Act 1962 (Queensland) comprising part of Roberts Road which was never constructed, or (b) at all. 3. The decision of the President pursuant to the Native Title Act 1993 (Cth) subsection 63(3) paragraph (c) comprises an exercise of judicial power by the President in a capacity other than that of a federal court, contrary to Section 71 of the Constitution of the Commonwealth of Australia. 4. The decision of the Registrar in - (a) forming an opinion pursuant to Section 63 of the Native Title Act 1993, or, (b) not accepting the Application, pursuant to a direction of the President under sub-section 63(3) paragraph (c) of the Native Title Act 1993 (Cth) comprises an exercise of judicial power by the Registrar who does not constitute a Federal Court, contrary to Section 71 of the Constitution of the Commonwealth of Australia." On the hearing of the appeal, Mr Fourmile did not argue that the Registrar or President erred in forming an opinion that no prima facie claim could be made out in respect of the freehold land and the floating reservation for road purposes within it. The appeal was argued on three narrow grounds :- (a) That the NTA permitted and required the Registrar and/or the President, if satisfied that the claim as made could not succeed, to peruse the claim to determine whether any claim at all could be made as to all or part of the land claimed and to unilaterally amend the claim and accept the amended claim; (b) That the claim as made satisfied the requirements of s 63 of the NTA and that the Registrar erred in not accepting it; and (c) That the President and/or the Registrar in determining not to accept Mr Fourmile's claim were impermissibly exercising the judicial power of the Commonwealth contrary to s 71 of the Constitution. The first ground raised the issue of the proper construction and legislative purpose of s 63 of the NTA. The section provides :- "63(1)If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion: (a) that the application is frivolous or vexatious; or (b) that prima facie the claim cannot be made out. (2) If the Registrar is of the opinion mentioned in paragraph 91(a) or (b), the Registrar must refer the application to a presidential member. (3) If the presidential member is of the same opinion, the presidential member must: (a) advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and (b) if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and (c) if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application. (4) If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application." It was submitted by counsel for Mr Fourmile that the change in language from the obligation on the Registrar to consider whether "the claim cannot be made out" in s 63(1)(b), to the obligation of the President to consider whether "a claim can be made out" in s 63(3), indicated that the legislature intended that the claimant was not limited to the claim as originally made, but was entitled to advance any claim which the President was persuaded was fairly arguable. The section contemplates that a claimant may recast or amend the claim as originally lodged: Northern Territory of Australia v Lane (1995) 59 FCR 332 at 338. However, the language of s 63(3)(a) places the onus of satisfying the President on the claimant and it is in respect of that onus that the section requires that a claimant be given a reasonable opportunity to satisfy the President that a prima facie claim can be made out. In the instant case, Mr Fourmile made no attempt to advance a claim other than in respect of one area of land the preponderant part of which was freehold land including a reservation for road purposes within it. Mr Fourmile has not on this appeal sought to argue that the Registrar and/or the President erred in forming the opinion that the grant of freehold title, including the floating reservation for road purposes, extinguished native title and that the claim as made, prima facie, could not succeed. A separate discrete claim for the land the subject of the road closure application was not advanced before the Native Title Tribunal and was first advanced on appeal before this Court. I am not persuaded that there is anything in the language of s 63 which either required or permitted the President to unilaterally amend and recast the claim as made to a claim limited to the area the subject of the road closure application. The first ground fails. For the reasons set out in respect of WAG 6002 of 1995 above, there was nothing in the claim of Mr Fourmile as lodged which ought to have led the Registrar to conclude that Mr Fourmile was making a separate and discrete claim of native title in the land the subject of the road closure application, and to form the opinion that a prima facie case to such an entitlement could be made out. The claim was not therefore one which met the requirements of s 63 of the NTA and the Registrar did not err in forming the opinion that the claim as made did not satisfy those requirements. The second ground fails. The final ground relies on an argument that, in rejecting the application of Mr Fourmile claiming native title, the Registrar and the President adjudicated upon Mr Fourmile's legal right to avail himself of the rights and procedures given to him by the NTA and denied to him those rights and the right to have determined his native title claim in the land the subject of the road closure application. Such an exercise of power, it was submitted, was an impermissible exercise of the judicial power of the Commonwealth. In my view, the conduct of both the Registrar and the President amounted to no more than an exercise of administrative power within the proper limits of s 63 of the NTA. Such an exercise of power does not constitute an impermissible exercise of judicial power: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 622. The President did not in the instant case purport to adjudicate and did not adjudicate, as a matter of fact or law, on the issue of whether any native title as claimed by Mr Fourmile was extinguished. The position in the instant case therefore, is to be distinguished from that in the North Ganalanja case. The argument put by counsel for Mr Fourmile on this point is an attempt to recharacterise in an impermissible way that which the High Court has accepted as an exercise of administrative power under s 63. This ground also fails. I would dismiss the appeal in WAG 6003 of 1995.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Counsel for Mr Fourmile: G McIntyre and J D McKenna Solicitor for Mr Fourmile: North Queensland Land Council (Town Agents Phillips Fox)

Counsel for the State of Queensland: P A Keane QC and P J Flanagan Solicitor for the State of Queensland: Crown Solicitor

Counsel for the Attorney-General for the Commonwealth and the Honourable Justice French: A Robertson SC and Dr A S Bell Solicitor for the Attorney-General for the Commonwealth and the Honourable Justice French: Australian Government Solicitor

Date of Hearing: 29 April 1997 Date of Judgment: 13 February 1998