263 The first question to be determined is whether the rights granted to the joint venturers under the Agreement and the mineral leases ultimately granted in furtherance of the Agreement as approved by the 1964 Act conferred, according to their terms, a right of exclusive possession in the joint venturers in mining areas A and B as against all others, with the result that the subsistence of any of the native title rights and interests in the Ngarla People in respect of that land is inconsistent with the grant and thereby extinguished.
264 To the extent that the long accepted nature or character of a "mining lease" or a "mineral lease" at common law (issued under Mining Acts or mineral resource legislation) informs an answer to that question, it should be noted that in Wade v New South Wales Rutile Mining Company Pty Ltd & Ors (1970) 121 CLR 177, Windeyer J in construing the New South Wales Mining Act 1906-1964 (an analogue of the Mining Act 1904 (WA)) observed at 195 that the policy of that legislation was to "encourage mining", that is, the particular activities associated with mining. At 192, Windeyer J observed that a mining lease is really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties. At 193, his Honour affirmed the notion that a mining lease, in principle, is "really, in its essence, rather a sale at a price payable by instalments than a demise properly so called" [emphasis added] and observed that "[i]t is thus in accordance with usage to describe a right given by the Crown to extract minerals belonging to the Crown as a lease - a term used in the statutes since 1894" [emphasis added]. Sir Victor Windeyer made these remarks in the context of mineral leases of private land for mining minerals belonging to the Crown. See also Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 616 and Western Australia v Ward (2002) 213 CLR 1 at [285]. The leases in issue in these proceedings were leases of temporarily reserved Crown land the subject of a previous right of occupancy under s 276 of the Mining Act 1904 leading up to the grant of the leases to the joint venturers under the Agreement.
265 The essential nature of the rights granted under the gold mining or mining leases provided for by ss 42, 48 and 61 of the Mining Act 1904 fundamentally serves this conception of a mining lease within the framework of legislation serving the purpose of seeking to encourage the production of mining, the working of specified minerals, mining for gold and the effectual carrying on of mining operations by lessees.
266 The Mount Goldsworthy mineral leases, of course, were not granted under the authority or provisions of the Mining Act 1904. The leases were granted under the Agreement, for the purposes of the Agreement, on the particular terms, under the authority of the 1964 Act. In construing the nature of the grant under these bespoke contractual and statutory arrangements, a question arises of whether the understanding of the limitations in the grant of a mining lease issued under an Act such as the Mining Act 1904 (as the relevant subject specific Act concerned with the granting of a mining lease at the time of the Agreement and the 1964 Act) as described by Windeyer J is to be applied to the Agreement (and the leases granted under it), under the authority of the 1964 Act, or whether the language of the grant conferred by the Agreement and the terms of the leases, is a grant of exclusive possession as against all others.
267 Secondly, if not a grant of exclusive possession capable of being asserted against all others, or alternatively, if a grant of exclusive possession limited only to a particular purpose, are the rights the subject of the grant necessarily inconsistent with the exercise by the native title holders of each of the native title rights and interests?
268 As to the nature of the "enjoyment" conferred at common law by the grant of an interest in land described as "exclusive possession", Gummow J said this in Wik Peoples v Queensland (1996) 187 CLR 1 ("Wik") at 194 and 195:
On the other hand, at common law the term "exclusive possession" is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises. "Exclusive possession" serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord ... As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee ...
269 In Wik, Toohey J observed that in determining whether a lease confers a right of exclusive possession (or in determining the scope of a grant of exclusive possession) the first step is to determine whether the grant confers possession of the land on the grantee "to the exclusion of all others" including the native title holders, and that question can only be answered by examining the "all-important terms" of the grant and the language of the authorising statute, not by reference to "general concepts of what is involved in the grant of a leasehold" (at 108).
270 In these proceedings, it is important to remember as already mentioned that the rights granted to the joint venturers are not simply silo grants of rights under two mining leases issued under the provisions of an Act directed to, relevantly, mining for minerals such as the Mining Act 1904.
271 In other words, the rights granted are not just rights arising under mining leases in a conventional sense.
272 The appellants place considerable reliance upon the point of principle they seek to derive from the observations of the majority in Western Australia v Ward at [308]. That point, they say, is that the majority recognise at [308] a distinction between inconsistency of legal rights (between the grant and each of the native title rights) called "legal inconsistency" giving rise to extinguishment on the one hand, and "practical inconsistency", on the other hand, in the operation or exercise of the granted rights and each of the native title rights which are said to be co-existing rights. In cases of "practical inconsistency", the granted rights, it is said, will "prevail" over the exercise of native title rights but will not extinguish them. The appellants say that since the High Court has recognised a distinction between inconsistency of rights which extinguish native title, and granted non-extinguishing rights that merely prevail over native title, the primary judge fell into error in holding that the rights granted to the joint venturers gave rise to legal inconsistency in the "developed area". The appellants say that the rights granted to the joint venturers merely prevail over the native title rights and interests in the developed area in accordance with the distinction recognised by the High Court.
273 In Western Australia v Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ (referred to as the "majority" or the "majority judgment") considered, among other interests, the extinguishing effects of mining leases granted under the provisions of the Mining Act 1978 in the context of s 85 of that Act which confers an entitlement on the lessee to use, occupy and enjoy the land the subject of the mining lease "for mining purposes" and which recognises that the rights so conferred are "exclusive rights for mining purposes in relation to the land in respect of which the mining lease was granted". The Full Court of the Federal Court had given emphasis to the limitation reflected in the phrase "for mining purposes" as suggesting that although the scope of the lessee's entitlements might be so limited, possession nevertheless could not be granted to another person and thus this limited, yet exclusive possession for the relevant purpose, necessarily extinguished the native title rights and interests in issue. At [308], after emphasising the methodological point made at [78] and [234] concerning the need for a close identification of each of the native title rights and an objective comparison of those rights with the relevant grant of rights, their Honours observed that the grant of exclusive possession for mining purposes is directed "at preventing others from carrying out mining and related activities on the relevant land" [emphasis added] and although the lessee could prevent anyone else seeking to use the land for mining purposes, it did not follow that "all others were necessarily excluded from all parts of the lease area" [emphasis added].
274 The majority observed at [308] that understanding the notion of a lessee "carrying out mining and related activities on the relevant land" or using the land for "mining purposes" is assisted by an examination of those authorities construing the term "mining operations" as it appears in legislation giving favourable treatment to taxpayers engaged in that activity. That term goes beyond extraction of minerals from the land and is described as "a very large expression" in the authorities. Moreover, the majority at [308] observe that the grant of a right to mine encompasses a grant of those rights "necessary for its meaningful exercise". Having made those observations about the proper understanding of the scope of a grant for "mining purposes" or the grant of a right "to mine", the majority illustrated the principal point made at [308] (the grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land) by then observing that the holder of a mining lease, having a right to exclude others for the specified purposes may exercise that right "in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity" [emphasis added]. Thus, an objective comparative analysis of the competing rights may show that the grant of rights (properly construed) to the lessee would entitle the grantee to exercise rights, as granted, in a way that would prevent the exercise of a particular determined native title right for so long as the grantee continues to carry on the preventative activity, that is, to exercise the conflicting right the subject of the grant.
275 An illustration of that notion is put in these terms by the majority at [308]:
Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area.
[emphasis added]
276 And at [308], the majority then added:
That is not to say, however, that the grant of a mining lease is necessarily inconsistent with all native title.
277 The focus of the discussion at [308] seems to be directed to first identifying the intersection between the true scope of the grant there described (for "mining purposes"; "to mine") and "some relevant native title right or interest" (undefined due to the limitations in the primary findings) and second, at recognising, by reason of that intersection, the exercise of the granted right would prevent the exercise of the intersecting hypothetical relevant native title right in question. That prevention is said to arise, in practical effect, because the exercise of the grant may, in a sense, cover the field of the intersecting hypothetical native title right, or put another way, the exercise of the native title right is inconsistent or in conflict with the exercise of the intersecting grant. More accurately however, the right, as granted by the exercise of executive or statutory power, is inconsistent with the subsisting intersecting hypothetical native title right under examination. That the discussion at [308] is concerned with "inconsistency" although the language of the discussion is "prevention" is revealed by the important qualification to the intersecting effect of the grant properly construed and the relevant native title right, to the effect that the grant is not "necessarily inconsistent" with all native title rights and interests.
278 However, one aspect of the inconsistency discussed at [308] giving rise to the prevention of the native title right seems to have a temporal dimension to it rather than the absolutism of true inconsistency because the postulated prevention upon the exercise of the conflicting relevant native title right or interest is engaged "for so long as" the holder of the right granted by executive or legislative action "carries on that activity".
279 This seems to suggest that once the activity which is the expression of the grant validly conferred, ceases, for one reason or another, the decisive factor is no longer engaged and the native title right or interest might then be exercised again. In this sense, "prevention" (due to the impossibility of joint exercise) is inconsistent with inconsistency giving rise to extinguishment or falls short of that particular kind of inconsistency. Inconsistency giving rise to a temporal prevention of the exercise of a native title right is said to be regarded as temporal inconsistency or, to use the term of the appellants, "practical inconsistency".
280 However, at [308] and [309] the majority made further observations which suggest that the discussion of prevention derived from intersecting rights as earlier discussed in [308] is essentially a discussion about inconsistency in the true sense of the word, that is, the two rights are incapable of joint exercise. In those paragraphs, the majority observe that due to the generality of the primary findings concerning the content of the native title rights (but for one native title right) "it is not possible to accurately determine the native title rights and interests that have been extinguished or those that remain" [emphasis added]. The one right that the majority found could clearly be said to have been extinguished by the statutory grant was the native title right to control access to the land. The majority observe at [309] that this right is "inconsistent with the rights of access arising under the mining leases" [emphasis added]. This observation seems to be a conclusionary one about inconsistency leading to extinguishment as compared with working or practical inconsistency giving rise to temporal prevention.
281 As to limitations on the scope of the grant, a similar question arose in Western Australia v Ward in connection with the assessment of the particular legislative and contractual arrangements arising under the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 and the Argyle mining lease granted under the Mining Act 1981. In that example, the adopting Act ratifying the contractual arrangements between the State and the relevant participant provided by s 8 of the ratifying Act that, without limiting any other right, title or interest the participant might have in respect of the subject land or any minerals found upon that land, on and from commencement of the ratifying Act, the participant enjoyed "exclusive possession of the subject land for the purposes of the Mining Act 1904 [and the Mining Act] …". The Full Court in considering the limitation of exclusive possession "for the specific purposes only", and the limitation that the lease is a lease of land "for all minerals", concluded that it does not follow from the circumstance that "a lessee is granted exclusive possession of land for a nominated purpose, that others may possess the leased premises for other purposes" [emphasis added].
282 At [331], the majority reasserted the point made earlier in the majority reasons, described at [273] of these reasons, and said this:
… [It] is not to the point to say that the land could not be leased to a third party for a different purpose. Native title rights and interests are allodial and do not depend upon, and do not derive from, any kind of grant attributable to the Commonwealth or the State. It should be apparent that the incidents of native title that may be described as usufructuary in nature, such as the right to hunt, may be able to be exercised over part or all of the land the subject of the relevant mining lease.
283 Further, in addressing the notion that there is a substantial element of permanence in the mining use authorised under the Argyle contractual and statutory arrangements of a scale and dimension sufficient to extinguish the native title rights and interests, the majority observed that such a conclusion should not be accepted and that the provisions of the ratifying Act conferring a right of exclusive possession did not require a conclusion that the Argyle mining lease was necessarily inconsistent with all native title. At [333], the majority then observed: "Exclusive possession was granted for mining purposes only" [emphasis added].
284 It will be necessary to return to the Agreement and instruments made under it that both conferred rights on the joint venturers and reserved entitlements to others, in determining whether the rights granted constitute a right to exclude all others from the area of each lease as the joint venturers and the State contend, or whether inconsistency of rights otherwise arises as each of those parties also contend.
285 Before doing so and before further examining the contentions of the parties (and particularly the reliance placed by the appellants on Ward and other authorities), these statements of principle derived from the majority judgment in Western Australia v Ward (leaving aside for the moment the question of whether particular observations of their Honours might in a formal sense be obiter dicta) and the authorities more generally, ought to be noted.
286 In Mabo v Queensland [No. 2] (1992) 175 CLR 1 at 64 ("Mabo (No. 2)"), Brennan J observed (Mason CJ and McHugh J agreeing) that the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land has led courts to repeatedly emphasise that the exercise of a power by executive or legislative action to extinguish native title must reveal a "clear and plain intention" to do so. In Mabo No. 2, Brennan J at 64 described this principle as "patently the right rule". It has however another dimension. In Mabo No. 2, Brennan J at 64 observed that a clear and plain intention to extinguish native title is not revealed by a law which "merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title". The references by Brennan J to "native title" must be taken to be references to each of the native title rights and interests comprising the bundle of rights collectively called, for ease of reference, native title.
287 A law "merely regulating" the enjoyment of native title rights and interests is a law falling short of a prohibition upon the exercise of native title rights and the notion of the creation of a regime of control (by executive and legislative action) consistent with the "continued enjoyment of native title" suggests co-existence. In Wik, Toohey J observed at 126 that the emphasis on inconsistency between rights granted by legislation or an administrative act authorised by legislation, and native title rights, is an emphasis upon the "inability of the two to co-exist" and "it is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished" [emphasis added].
288 In Mabo No. 2, Deane and Gaudron JJ, at 111, said that legislation is not to be construed, in the absence of "clear and unambiguous words" as intended to "extinguish or diminish" rights under common law native title and Toohey J at 196 in Mabo No. 2 said the statutory intention (under which executive power is exercised) to extinguish traditional title must appear "plainly and with clarity". Toohey J at 196 also observed however that this principle or rule does not require the legislature to "identify with specificity particular interests to be extinguished if the legislative intention is otherwise clear".
289 These remarks are directed to orthodox principles of statutory construction in objectively determining, from the text, the statutory intention.
290 In the present case, the question is not simply one of construing an Act such as the Mining Act 1904 which makes provision for particular kinds of leases relating to mining according to the applicable statutory provisions (and on the terms of a particular form of identified lease) but rather a case of construing the terms of an agreement made between the executive and joint venturers and given legislative authority by the 1964 Act adopting the agreement and ratifying all the grants made under it.
291 In Wik at 85, Brennan CJ observed that a law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect unless there be a "clear and plain" intention to do so objectively derived from the words of the relevant law (or the nature of the executive act and the power supporting it). The state of mind of the legislators is irrelevant to that assessment. Brennan CJ at 85 also observed that a law or executive act may however create rights in third parties inconsistent with a continued right to enjoy native title which extinguishes native title to the extent of the inconsistency "irrespective of the intention of the legislature or the executive and whether or not [either branch] adverted to the existence of native title". As to the extinguishment of native title rights and interests by the creation of inconsistent rights, Gleeson CJ, Gaudron, Kirby and Hayne JJ observed in Yanner v Eaton (1999) 201 CLR 351 at [35] that native title is extinguished by the creation of third party rights inconsistent with the native title holders continuing to hold their rights and interests, and the "extinguishment of such rights must, by conventional theory, be clearly established".
292 The emblematic example of the creation of rights in third parties extinguishing native title rights and interests in land is the grant of a fee simple estate in that land. Extinguishment arises because such a grant is inconsistent with the native title holders continuing to hold any of the rights or interests that collectively make up native title in connection with that land: Fejo at [43], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
293 In these proceedings, the State and the joint venturers contend that the third party rights created by the executive and legislative action of the State is a right of exclusive possession as against others and if not that, a grant of rights necessarily inconsistent as a matter of objective comparison with each of the determined native title rights. In Wik, Toohey J at 130 in the context of the creation of third party rights by the grant of a pastoral lease made under the relevant Act, looked to identify the "necessary implication of a clear and plain intention [to extinguish]". The Agreement, the leases made under it and the 1964 Act in providing for the grant of third party rights must, in order to extinguish or impair native title manifest a clear and plain intention to do so: Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 423; Wik, Gummow J, at 168.
294 As to inconsistency of rights, Gummow J in Wik at 185 observed that the test of extinguishment is a comparison of the "legal nature and incidents" of the statutory right and the native title rights. The question is whether the respective incidents of each are such that the existing native title right "cannot be exercised without abrogating the statutory right". If it cannot, then by necessary implication, the legislative Act extinguishes the existing native title right. Extinguishment is a question of law and the inquiry turns on the "legal criterion" of inconsistency. Three years before the decision in Western Australia v Ward, Gummow J (who was a member of the majority in Ward) in Yanner v Eaton at 395, observed that the continued subsistence of native title rights and interests will turn on the "extent" of the inconsistency in question, except that examining the extent of any inconsistency will not be necessary where the grant is fee simple or "a leasehold interest known to the common law" (a true demise) because the comprehensiveness of the grant in such cases "precludes any question of partial inconsistency". Gummow J seems to be using the term "partial inconsistency" as a reference to one or more but not all incidents of the native title rights being inconsistent with the statutory grant in which case some of the native title rights comprised in the bundle may continue to subsist after grant.
295 At [109] and [110] in Yanner v Eaton, Gummow J also made these observations.
296 First, the question to be asked in objectively comparing the intersection between the statutory rights with the content of the native title rights is whether the statutory rights "necessarily curtail" the "exercise" of the native title rights such that "abrogation" of the native title right is "compelled" or whether to some extent the native title right survives or whether no inconsistency arises at all.
297 Second, a statute may "regulate" the exercise of native title without "in any degree" abrogating it.
298 Third, in Wik, the subsistence of native title rights was not abrogated by "the mere existence of unperformed conditions in the grant of the pastoral leases" [emphasis added]. Justice Gummow noted that in Wik the circumstances were that the statutory grant did not clearly, plainly and distinctly authorise enjoyment of the land in a way "necessarily inconsistent" with some incidents of the native title.
299 Fourth, the existence of unperformed conditions in the grant in Wik had "no immediate legal effect, in terms of inconsistency, whilst unperformed" [emphasis added].
300 Fifth, if performance of the unperformed conditions of the grant "had occurred, questions would have arisen respecting operational inconsistency between the performed conditions and the continued exercise of native title rights" [emphasis added]. By operational inconsistency, Gummow J seems to be referring in that passage at least, to the question of whether inconsistency would emerge in the working intersection of the two sets of rights in an analogous sense to the way in which a question of inconsistency arises under s 109 of the Commonwealth Constitution in examining the field of operation of the relevant Commonwealth and State law.
301 In Western Australia v Ward, the majority made these important observations.
302 At [78], the majority observe that some authorities suggest that those who contend for extinguishment of native title rights and interests are required to demonstrate a "clear and plain intention" in the relevant act, to do so. At [78], the majority observe that the expression "clear and plain intention" must not be misunderstood, and the majority make these observations:
The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present in the minds of those whose act is alleged to have extinguished native title. It follows that referring to an "expression of intention" is apt to mislead in these respects. As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests.
[emphasis added]
303 At [78], the majority observe that the question put in that paragraph is to be answered by this method:
[inconsistency] is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on the land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issues with which we must deal in these matters [that is, relevant to the question of extinguishment].
[emphasis added]
304 As to the question of activities conducted on the land or the use to which the land has been put, the majority reasserted at [215] in these terms, the point made at [78]:
The reference … to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with the native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use. Further, as has already been pointed out, it is often necessary to examine inconsistency by reference to the particular native title right and interest concerned.
[emphasis added]
305 And, as to the importance of focusing upon a rights analysis, the majority said this at [234]:
… [W]e consider that looking to the use that has actually been made of land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time …
306 Although the grant of an interest in land in fee simple is inconsistent with the continuing subsistence of native title rights and interests in that land and thus extinguishes the latter rights (Fejo), their Honours observe at [80] that it remains "plain that rights held under at least some grants of interests in land less than a fee simple are inconsistent with the continued existence of native title rights".
307 At [82], their Honours rejected the notion that there "can be degrees of inconsistency of rights" and said this:
Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise.
308 At [82], their Honours also observe that it is a mistake to assume that native title rights and interests might be understood as a single set of rights relating to land analogous to fee simple. At [82], it is essential to identify the rights deriving from the exercise of the "new sovereign authority that came with the settlement", and each and every right comprised in the native title rights and interests deriving from the traditional law and custom of the native title holders. At [95], their Honours observe that the metaphor of "bundle of rights" is useful as it draws attention to the fact that there "may be more than one right or interest and secondly … there may be several kinds of rights and interests in relation to land that exist under traditional law and custom".
309 The majority also considered the extinguishing effects or otherwise of the grant of pastoral leases under a range of statutory instruments including the Land Act 1898 (WA), the Land Act 1933 (WA) and amendments to that Act, and other instruments. Observations about those matters are only presently relevant in terms of the analogical methodology applied to determining whether the grant of the lease had the effect of conferring a right of exclusive possession in the grantee and thus extinguishment of the yielding native title rights. As to the methodology, the majority examined the nature of the grant and the scope of the reservations affecting the grant and at [178] their Honours observed that on no view did a pastoral lease granted under the relevant provisions give the holder a right to exclusive possession of the land. At [178], their Honours explained that conclusion this way:
… There were extensive reservations permitting entry not only on behalf of the Crown but also by others in many different circumstances and for many different purposes. It is enough to notice the widest of these, reserving a right to any person "to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another, with or without horses, stock, teams or other conveyances, on all necessary occasions.
[emphasis added apart from the word "any"]
310 At [180], the majority set out a summary of the factors supporting the conclusion at [178] including the reservations earlier mentioned, the conferral of the grant being limited to purposes referred to as "pastoral purposes", the pastoral leases representing but one of several forms of interest and other factors. At [180], the majority also observed that the fact that the instrument by which a pastoral lease was granted (under the provisions of the relevant Act) used language derived from the common law typically seen in leases (a demise) between private individuals concerning land, "does not conclusively demonstrate that the holder of a pastoral lease was granted a right to exclusive possession in the land".
311 Five other matters relating to Ward should be mentioned.
312 First, the majority at [179] noted that in pastoral leases issued under the Land Act 1898 or previous "Land Regulations" and s 106(2) of the Land Act 1933 (concerning post-1934 pastoral leases), each lease contained a reservation in favour of "Aboriginal natives" at all times to enter upon unimproved (unenclosed or enclosed) land "for the purpose of seeking their subsistence in their accustomed manner". At [179] together with [185] the majority found that such a reservation should not be read as prohibiting access by native title holders in all other circumstances. The failure to impose an express reservation in favour of Aboriginal people in the Agreement, the Mount Goldsworthy Leases or in the adopting 1964 Act, ought not to be construed as conferring an express prohibition upon the exercise of the demonstrated native title rights and interests of the native title rights holders. The true extinguishment inquiry is an objective comparison of the two sets of rights.
313 Second, the adoption of successive penal provisions prohibiting unlawful or unauthorised use or occupation of Crown lands the subject of pastoral leases ought not to be understood as "working an extinguishment of native title".
314 Third, at [26] and [29], the majority recognised that Yanner v Eaton is an illustration, having regard to the findings of fact at trial, of circumstances where a statute might regulate the exercise of the native title right without abrogating that right. As to the regulation of a native title right without abrogating that right, Gleeson CJ, Gaudron, Kirby and Hayne JJ said this at [37] and [38] in Yanner:
37. … [R]egulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised pre-supposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern ...
38. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with that land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, "You may not hunt or fish without a permit" does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.
[original emphasis]
315 In Yanner, the Aboriginal appellant had taken two juvenile estuarine crocodiles by traditional means on his traditional land. The Fauna Conservation Act 1974 (Qld) (the "Fauna Act") prohibited a person (any person) from taking fauna of any kind unless holding a particular licence, permit or other authority issued under the Fauna Act. Mr Yanner did not hold such a licence, permit or authority. However, the taking of the estuarine crocodiles fell within ss 211(2) and (3) of the Native Title Act. Section 7(1) of the Queensland Act rendered all fauna the property of the Crown, subject to particular qualifications, by vesting title to fauna in the Crown. At [36] and [37] of the reasons in Yanner, the majority identified the relevant statutory "regulation" of the way in which native title rights might have been thought to be extinguished was the vesting effected by the Fauna Act not any anterior prohibition upon the unlicensed taking of fauna. In Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25; (2012) 289 ALR 400, Keane CJ and Dowsett J said this at 430 and 431 at [81] and [82] of Yanner and Ward:
81. It may also be noted that the High Court in Yanner did not decide, or suggest by way of obiter dicta, that only legislation which expressly purported to extinguish native title rights in those terms would be effective to foreclose the continued recognition by the common law of those rights. Nothing in Yanner denies that legislation which was necessarily inconsistent with the continued enjoyment of native title rights extinguished those rights. The contrary view is difficult to reconcile with the approach taken in Ward.
82. The Seas Claim Group's argument is flawed by the failure to appreciate that Yanner does not support the general proposition that a legislated prohibition upon an activity, save subject to a licence, is to be understood as having effect merely to regulate the exercise of an underlying right to carry out that activity. In Yanner, the provisions of the Queensland legislation which ex facie purported to prohibit the activity of taking native fauna without a licence were denied that effect by s 211(2) of the [Native Title Act 1993 (Cth)].
316 Fourth, as to operational inconsistency, the majority emphasise at [143] and [147] to [149] that the fundamental analysis remains one of examining the "legal effect" of particular grants (especially in the case of bespoke legislation) enacted for the particular purposes of establishing the enterprise comprising the project and at [143] attention must be directed to the "legal effect of particular dealings with land". At [149], the majority observe that although the term "operational inconsistency" may provide some analogical assistance in the field of analysis of inconsistency giving rise to extinguishment (or not), the analogy "cannot be carried too far" and that is especially so where the grant does not carry a right of exclusive possession against all others and each right within the grant must then be compared with each of the native title rights to determine which of them, as may have existed, have been necessarily extinguished by the scope of the grant.
317 Fifth, the use of the term "grant" in the analysis of the extinguishing effects, as a matter of law, of rights conferred by executive or legislative action, is apt to mislead because, first, the term derives from old system conveyancing including the creation and transfer of rights by the Crown to subjects which may not reflect the correct contextual setting and second, as to that setting, the grant of rights may expressly be conditional or incapable of identification without some other act or event occurring.
318 As already mentioned, the appellants' central contention is that the primary judge failed to recognise the High Court's contended acceptance of the distinction between "legal inconsistency" resulting in extinguishment of native title and "practical inconsistency" resulting in a statutory grant of rights that merely prevails over native title rather than extinguishing those rights. This distinction is said to be recognised in the discussion in Ward at [308] of an inability of rights holders to exercise rights in the "same place at the same time" resulting in the prevention of the exercise of the native title rights for so long as the grantee carries on the preventative activity.
319 The appellants say the primary judge applied an extinguishment principle said to be derived from the Full Court's decision in De Rose v South Australia (No. 2) (2005) 145 FCR 290 ("De Rose (No. 2)") of, in effect, crystallising extinguishment, which is that once the granted right, inconsistent with the relevant native title right (or perhaps all rights in the bundle), is actually exercised by the construction of a mine and the carrying on of the meaningful activities connected with mining so as to identify the place of those activities on the leases, the grant becomes operatively engaged at that place and the inconsistent native title right at that place is forever extinguished. The appellants say that in light of the distinction recognised in Western Australia v Ward, the principle said to be derived from De Rose (No. 2) (which is directed to the question of the extinguishing effects of improvements on pastoral leases by the construction of improvements on those leases), ought not to have been applied so as to extinguish native title rights and interests in the developed area because the grantees' rights simply prevail over the native title rights and interests.
320 The appellants say that extinguishment by legal inconsistency is based on the notion of "inability to co-exist" reminiscent of the observations of Toohey J in Wik at 126 or, put another way, inconsistency resulting in extinguishment must be "inevitable" as suggested in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaye, Native Title Claim Group (2005) 145 FCR 442 at [131] ("Northern Territory v Alyawarr").
321 The appellants say the primary judge correctly concluded that the 1964 Act and the Mount Goldsworthy Leases do not reveal a clear, plain and manifest intention to extinguish native title throughout the whole of the lease area. The appellants say, however, that contrary to the primary judge's finding, neither do those instruments reveal such an intention in relation to any part of the areas bounded by ML 235 or ML 249.
322 Moreover, the appellants say that the Mount Goldsworthy Leases merely regulate the exercise of each of the determined native title rights and the method of regulation is that, upon exercise of the granted rights, those rights (which reflect the exercise of preventative activity) prevail over the exercise of the determined native title rights "but are not inconsistent with them". The prevailing grant is said to prevent the native title rights being exercised "in a way that might hinder or prevent the exercise of the granted rights" but does not extinguish the native title rights. Apart from the discussion of prevention at [308] in Ward, the appellants say that these conclusions follow from the references by Gummow J to the requirement of "inevitability of inconsistency" at [110] and [111] in Yanner v Eaton. Although Gummow J did not use that language, his Honour observed that extinguishment can only occur where the two sets of rights are "necessarily inconsistent". As already mentioned, Gummow J at [109] in Yanner framed the question as whether the statutory right "necessarily curtails" the exercise of the native title right such that "abrogation" of it is "compelled" and at [110], Gummow J applied the Wik test of whether the statutory grant clearly, plainly and distinctly authorised use "necessarily inconsistent" with the continued subsistence of any incidents of native title.
323 The appellants say that these observations suggest an "inevitability test" which is not met in respect of the Agreement, the leases and the 1964 Act.
324 The appellants also rely on a statement of principle drawn from Northern Territory v Alyawarr. In that case, the Full Court of this Court considered whether a pastoral leaseholder's rights "inevitably conflicted" with the native title right of the Neowarra People to live on the relevant land, in determining whether the two sets of rights were inconsistent in a way which gave rise to extinguishment. The Full Court concluded that a native title right to live permanently on the leasehold land did not involve a right to live permanently at a particular place on that land and thus no inconsistency necessarily or inevitably arose. That followed because the native title right to live permanently on the land and erect structures did not preclude a pastoralist's right to require the removal of the structure at a particular place in the event that the pastoralist proposed to exercise a right under the lease at that place. Therefore, it could not be said to be "inevitable" that a conflict would arise constituting a necessary inconsistency of rights giving rise to extinguishment.
325 The appellants say that the same principle applies in this case with the result that mining rights when exercised by the joint venturers prevail over the determined native title rights which cannot then be exercised at the place of exercise of the joint venturers' rights for the period of the exercise of those rights. The appellants say that prior to the exercise by the joint venturers of their rights (that is, "before the mining works actually commence") the native title holders could exercise each of the native title rights in the developed area and once the mining works cease in the developed area, the native title holders again enjoy the right to exercise each of the determined non-exclusive native title rights in the developed area.
326 The appellants say that "potential practical inconsistency in the simultaneous exercise" of the granted rights and the native title rights at the same time and place does not engage "legal inconsistency" or "inconsistency of legal incidents".
327 The State contends that the Full Court of this Court in De Rose (No. 2) introduced into the test for inconsistency elements which cannot be reconciled with the principles established in Ward by determining the question of inconsistency in the following manner. Whilst the Full Court accepted that native title rights and interests could not co-exist with a pastoralist's right to construct and reside in a dwelling house, or to construct and use a storage shed, the Full Court concluded that these rights are only inconsistent with the relevant native title rights and interests when the grant holder exercises the granted rights, and inconsistency only arises when, and at the place where, the grantee's (lessee's) rights are exercised. Until that moment in time coupled with the selection of the place on the land where the grantee's rights to construct improvements are to be exercised, the grantee's rights are simply "potentially" but not "actually" inconsistent with the rights of the native title holders.
328 The State contends that this notion is simply "operational inconsistency" by another name which was rejected by the High Court in Ward.
329 It follows for the State that the primary judge fell into error (or if bound to apply the "potential inconsistency" approach adopted in De Rose (No. 2) the primary judge nevertheless reached a result contrary to Ward) by concluding that De Rose (No. 2) ought to be applied in an analogous way so as to find, as a matter of law, that the grant of the Mount Goldsworthy Leases extinguished native title only in the developed area upon exercise in the developed area of rights granted to the lessees.
330 The State contends that since De Rose (No. 2) in 2005, and a decision of this Court in King v Northern Territory (2007) 162 FCR 89 (a single judge decision), rights granted by the Crown inconsistent with native title rights and interests have been construed and applied in a way which fails to reflect fidelity to the tests laid down in Ward. The State supports the conclusion of the primary judge that the rights granted to the joint venturers are "analogous to rights of exclusive possession" [emphasis added] and the rights are inconsistent with all of the determined native title rights which cannot co-exist with the grant under the Mount Goldsworthy Leases, except that, the State contends that these conclusions of the primary judge necessarily require a further conclusion that all of the native title rights and interests have been extinguished over the whole of the lease area not just the "developed area".
331 The State contends that the rights granted by the Agreement and the Mount Goldsworthy Leases, properly construed, are a grant of exclusive possession conferring a right to exclude all others but, in any event, the bundle of rights granted to the joint venturers is necessarily inconsistent with each of the native title rights and interests in the native title bundle, over the whole of the lease area.
332 As to the contended distinction between "legal inconsistency" amounting to extinguishment and "practical inconsistency" falling short of legal inconsistency but nevertheless reflecting a conflict of entitlements should each rights holder seek to exercise what are otherwise said to be co-existing rights, "at the same time and place", the State contends, first, that the primary judge correctly found at [207] that the contended distinction fails to recognise the fundamental test of whether the rights, as granted, are inconsistent with each of the native title rights, not whether one prevails over the other and, second, such a distinction impermissibly enlarges the notion of "prevailing rights" to such an extent that most conflicting sets of rights would be characterised, under such a test, as giving rise to granted rights that merely prevail over rather than extinguish native title rights even though, once it is established that the two sets of rights conflict, the rights are, in substance and in truth, inconsistent.
333 The joint venturers contend that the Agreement and the leases issued under it, under the authority of the 1964 Act, confer possession of the leased land on the grantee to the exclusion of all others including the native title holders. That result is said to follow from an analysis of the language of the grant, the terms of the leases, the statutory authority given to those instruments, the nature of the tenure conferred by the Agreement and the leases (a true demise) and the role of the GA Act. The joint venturers contend that no reservation of a specified and limited right of third party access over the land diminishes the scope of the grant as one of possession to the exclusion of all others.
334 Moreover, the joint venturers say that the particular reservations relied upon by the primary judge at [185] do not imply a material narrowing of the underlying right conferred by each lease and further, the notion that although the reservations restrict the use to which the joint venturers might put the land, the reservations are not inconsistent with a right of exclusive possession in the joint venturers, is a notion accepted by Mason J in respect of similar reservations in Goldsworthy Mining Ltd v Commissioner of Taxation of the Commonwealth of Australia (1973) 128 CLR 199 at 213.
335 As to inconsistency of legal incidents, on the assumption that the nature of the tenure is not a grant of exclusive possession, the joint venturers say that extinguishing inconsistency by reason of a comparison of the two sets of rights is not confined to those parts of the leases where developments have been carried out under the Agreement and the leases (being the "developed area" as described by the primary judge) but gives rise to extinguishment over the whole of the lease area because the two sets of rights are, as found, truly inconsistent. The joint venturers say that native title, as acknowledged in Fejo at 150 and 151, is inherently fragile and susceptible to extinguishment or defeasance.