Commonwealth of Australia v Yunupingu [2025] HCA 6

The Gumatj Clan claim that each such appropriation or grant of an interest in land was invalid at the time it occurred to the extent that it was inconsistent with native title rights and interests which, in light of Mabo v Queensland [No 2] ("Mabo [No 2]"),⁹ it must now be accepted that the common law of Australia recognised that the Gumatj Clan then held in relation to the land.

The theory underlying the claim of the Gumatj Clan, that each appropriation or grant was invalid at the time it occurred to the extent that it was inconsistent with their native title then recognised at common law, is founded on two main propositions. The first is that the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory – the source, or at least a source, of the power of the Commonwealth Parliament to enact the Northern Territory Administration Act – does not extend and has never extended to making a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The second is that a law is properly characterised as a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution if and to the extent that the law purported before the commencement of the Native Title Act to appropriate or grant an interest in land which was inconsistent with a native title right or interest in relation to that land then recognised at common law.

Each of those two propositions was considered in Newcrest Mining (WA) Ltd v The Commonwealth.¹⁰ The first was again considered in Wurridjal v The Commonwealth.¹¹ However, neither Newcrest nor Wurridjal authoritatively determined the correctness or incorrectness of either proposition.

The main purpose of stating the separate questions in the proceeding in the Federal Court was to elicit an authoritative determination of the correctness or incorrectness of the two propositions in the same way as if the procedure of the Federal Court had permitted the Commonwealth to demur to the Gumatj Clan's claim.¹²

The Full Court, in answering the separate questions, accepted both propositions to be correct. By the first two grounds of its appeal by special leave to this Court, the Commonwealth challenges the Full Court's acceptance of them.

The historical background to the application for compensation made by the Gumatj Clan and the particulars of their claim are explained in the reasons for judgment of Gordon J. Her Honour's explanation enables immediate consideration of the legal merits of the two propositions on which the Gumatj Clan's claim is founded. For reasons now to be explained, the Full Court was right to accept both propositions to be correct.

The power conferred by s 122 of the Constitution to "make laws for the government of any [such] territory" has often been described as "plenary", although the aptness of that descriptor has been doubted.²⁹ The power conferred by it is plenary not in the sense that s 122 is "disjoined from other provisions in the Constitution" but in the sense that "all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connexion between the law and the Territory".³⁰

The plenary power conferred by s 122 of the Constitution has never been doubted to enable the Parliament to enact a law that provides for the "direct administration"³¹ of a territory, including by empowering the making of subordinate legislation,³² such as occurred in the Northern Territory under the Northern Territory Administration Act³³ and in the Australian Capital Territory under the Seat of Government (Administration) Act 1910 (Cth). The power has also been accepted to enable the Parliament to enact a law that provides for the establishment of a territory as a self-governing polity having its own "separate political, representative and administrative institutions",³⁴ such as now exist in and for those territories under the Northern Territory (Self-Government) Act 1978 (Cth) ("the Northern Territory Self-Government Act") and the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Australian Capital Territory Self-Government Act").³⁵

The question whether s 51(xxxi) abstracts from the legislative power conferred by s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property, as it does from other legislative powers, was squarely addressed in Teori Tau v The Commonwealth.³⁶ The unanimous holding was that it does not. The "concern" of s 51 of the Constitution was said to be with "what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States" in contrast with the "concern" of s 122, which was said to be with "the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power". The non-federal character attributed to the legislative power conferred by s 122 contributed to the conclusion that s 122 "is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section".³⁷ Though the question arose in relation to an external territory, the holding was emphasised to apply to internal and external territories alike.³⁸

The holding in Teori Tau, that s 51(xxxi) does not abstract from the power conferred by s 122 of the Constitution, was challenged in Newcrest. The result was inconclusive: three members of the Court (Brennan CJ,³⁹ Dawson J⁴⁰ and McHugh J⁴¹) favoured its retention, three (Gaudron J,⁴² Gummow J⁴³ and Kirby J⁴⁴) favoured its reopening and overruling, and one (Toohey J⁴⁵) refrained from expressing an opinion.

The holding in Teori Tau was again challenged in Wurridjal. This time, four members of the Court (French CJ,⁴⁶ Gummow and Hayne JJ⁴⁷ and Kirby J⁴⁸) were unequivocal that Teori Tau should be reopened and overruled. However, only three of them (French CJ, Gummow and Hayne JJ) joined in the order of the Court.⁴⁹ For that reason, reopening and overruling Teori Tau cannot be treated as part of the ratio of Wurridjal.⁵⁰

The holding in Teori Tau therefore stands. Yet the authority of Teori Tau has been so weakened by Newcrest and Wurridjal as to have made it inevitable that Teori Tau would be reopened if leave to reopen were sought. The Gumatj Clan appropriately seek leave to reopen Teori Tau, and that leave should be granted.

In answer to the question whether s 51(xxxi) does or does not abstract from the legislative power conferred by s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property, posed and answered in binary terms in Teori Tau, the Commonwealth proffers a hybrid alternative: a middle way. The approach for which the Commonwealth contends is that s 51(xxxi) abstracts the power to support a law with respect to the acquisition of property from the legislative power conferred by s 122 if the law is "made" under both s 122 and another source of legislative power in s 51 of the Constitution but that s 51(xxxi) does not abstract the power to support a law with respect to the acquisition of property from the legislative power conferred by s 122 if the law is "made" under s 122 alone.

It must be acknowledged that reasoning of Gaudron J in Newcrest,⁵¹ with which Toohey J,⁵² Gummow J⁵³ and Kirby J⁵⁴ expressed agreement, can be interpreted as supporting the alternative approach for which the Commonwealth contends. That said, the approach must be rejected.

The Commonwealth's hybrid approach would produce disconformity in the application of s 51(xxxi) and s 122 in relation to internal and external territories. On the one hand, s 51(xxxi) might or might not abstract from s 122 power to support a law with respect to an acquisition of property in an internal territory depending on whether the particular law in question might also be "made" under another source of legislative power in s 51. On the other hand, s 51(xxxi) would always abstract from s 122 power to support a law with respect to an acquisition of property in an external territory. That is because, despite an external territory being regarded as a part of the Commonwealth of Australia for some constitutional purposes,⁵⁵ any such law would necessarily be a law dealing with a matter geographically external to the continent of Australia and the island of Tasmania⁵⁶ so as necessarily also to be a law with respect to "external affairs" which might be "made" under s 51(xxix).⁵⁷ This bifurcated result means that s 51(xxxi) would operate as a complete guarantee against a legislatively imposed acquisition of property otherwise than on just terms in an external territory (with the curious consequence that Teori Tau would have been wrongly decided for that if for no other reason) but would operate only as a partial and contingent guarantee against a legislatively imposed acquisition of property otherwise than on just terms in an internal territory. The result would be inexplicable as a matter of rational constitutional design.

But that is not the only problem, or even the main problem, with the approach. The fundamental problem with the approach lies in the distinction for the purpose of s 51(xxxi) between a law "made" under one source of legislative power alone (s 122) and a law "made" under that and another source of legislative power (in s 51).

Such a distinction contradicts the further settled general principle of constitutional interpretation "that a law upon a subject-matter within Commonwealth power does not cease to be valid because it touches or affects a topic outside Commonwealth power or because it can be characterized as a law upon a topic outside power".⁵⁸ One corollary of that principle is that "a single law can possess more than one character in the sense that it can properly be characterized as a law with respect to more than one subject-matter". Another is that "[i]t suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth legislative power".⁵⁹

Application of the further settled general principle of constitutional interpretation means that:⁶⁰

The ultimately compelling counterpoint to the view which found favour in Teori Tau lies in the contemporary resonance of the earlier emphatic rejection in Lamshed v Lake⁶³ of the notion that s 122 can be interpreted "just as if the Commonwealth Parliament were appointed a local legislature in and for the [t]erritory with a power territorially restricted to the [t]erritory" in favour of the understanding that "s 122 is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the [t]erritory". The understanding which prevailed in Lamshed v Lake was supported by the observation that "it is 'the Parliament' that is to make the law pursuant to the power s 122 confers", which "necessarily refers to s 1 of the Constitution", and that "the use of the expressions 'accepted by the Commonwealth' and 'placed under the authority of the Commonwealth'" can be seen to refer to "the polity established by the Constitution and ... the full legal authority which under the Constitution it possesses".⁶⁴

The characterisation in Teori Tau of s 51(xxxi) as a "federal legislative power" in contradistinction to s 122 as a power "for the government of Commonwealth territories" involved the creation of a dichotomy which is falsified by the national character of the sole repository of both of those legislative powers. "[W]hen s 122 gives a legislative power to the Parliament for the government of a territory the Parliament takes the power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia".⁶⁵ The same is true when s 51(xxxi) gives a legislative power to the Parliament to make laws with respect to the acquisition of property on just terms. Sections 51(xxxi) and 122 are both conferrals of legislative power on the Parliament of the Commonwealth to make laws that not only have the potential to have nationwide application but that also have the potential to be of national significance even if their application is territorially confined.

That meets the submission of the Commonwealth that for s 51(xxxi) to abstract from the power conferred by s 122 would be "incongruous" or "anomalous" given that no equivalent constraint exists on the legislative power of a State⁶⁶ and that s 111 of the Constitution provides for a State to surrender and the Commonwealth to accept a territory so as to result in the territory becoming subject to the Commonwealth's exclusive jurisdiction. The power of the Commonwealth Parliament in relation to the government of the surrendered territory cannot be equated with the power which the State Parliament had in relation to that territory prior to surrender: surrender to and acceptance by the Commonwealth moves the government of the territory to a national plane.

Textually, there is no difficulty construing the reference in s 51(xxxi) of the Constitution to "any purpose in respect of which the Parliament has power to make laws" as encompassing the purpose of "the government of any territory" for which the Commonwealth Parliament may make laws under s 122 of the Constitution. The circumstance that s 51(xxxi) is, and s 122 is not, expressed to be "subject to this Constitution" does not affect this construction. When s 51(xxxi) is so construed, the application to s 122 of the general principle of constitutional interpretation through the operation of which s 51(xxxi) abstracts the power to make a law which has the character of a law with respect to an acquisition of property necessarily follows.

For s 51(xxxi) to abstract from s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property does not mean that the Commonwealth Parliament cannot confer authority on the legislature of a self-governing territory to acquire property on just terms. The argument of the Commonwealth to the contrary is answered by re-emphasising that s 51(xxxi) is, "first and foremost, a grant of power, and only secondarily a guarantee of 'just terms'".⁶⁷

As a grant of legislative power, no less than as a guarantee of just terms, s 51(xxxi) of the Constitution is to be "given as full and flexible an operation as will cover the objects it was designed to effect".⁶⁸ It is to be construed according to orthodox principles, "with all the generality which the words used admit"⁶⁹ and as "intended to apply to the varying conditions which the development of our community must involve".⁷⁰

When so construed, s 51(xxxi) of the Constitution is itself sufficient to support the present conferral by the Northern Territory Self-Government Act and the Australian Capital Territory Self-Government Act on the legislatures of the Northern Territory and the Australian Capital Territory respectively of power to make laws for the compulsory acquisition of property as an aspect of the general power of each legislature "to make laws for the peace, order and good government of the Territory"⁷¹ subject to the express limitation that the general power does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.⁷²

Consistently with the views of three members of the Court in Newcrest and four members of the Court in Wurridjal, Teori Tau must now be overruled. The time has come for it to be finally and authoritatively declared that the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory does not extend to making a law with respect to an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution.

The first of the propositions on which the claim of the Gumatj Clan is founded is correct and the first ground of the appeal fails.

The essence of the argument now advanced by the Commonwealth on the second ground of its appeal is that the "extinguishment" of a native title right or interest "recognised" at common law which occurred upon an appropriation or grant of an inconsistent right or interest by or pursuant to Commonwealth legislation is not an acquisition of property within the meaning of s 51(xxxi) of the Constitution as such "extinguishment" does not involve a "taking" of property. As framed in its notice of appeal, the argument of the Commonwealth is that property of native title holders was not taken upon an appropriation or grant of an inconsistent right or interest by or pursuant to Commonwealth legislation "because native title was inherently susceptible to a valid exercise of the Crown's sovereign power, derived from its radical title, to grant interests in land and to appropriate to itself unalienated land for Crown purposes".

The Commonwealth argues that this inherent susceptibility of native title rights and interests "recognised" at common law to the contingency of "extinguishment" in the event of such a valid exercise of "sovereign power" deriving from "radical title" lies behind repeated descriptions of native title as "inherently fragile".⁸⁸

The Commonwealth seeks to support the argument by analogy between a native title right or interest recognised at common law and a statutory right of property "created on terms which make that right susceptible to administrative or legislative alteration or extinguishment without acquisition" in the sense that susceptibility of the right to alteration or extinguishment by subsequent administrative or legislative action is "a characteristic of the right that is created – 'inherent at the time of its creation and integral to the property itself'".⁸⁹

The Commonwealth seeks to support the argument further by calling in aid the observation that "even at general law, an estate or interest in land or other property may be defeasible upon the operation of a condition subsequent in the grant, without losing its proprietary nature".⁹⁰ The Commonwealth points out that the common law and equity both knew not only the "fee simple absolute" but also the "determinable fee simple": an estate which contained "within ... the words which define[d] [it] the seeds of [its] own destruction" in that it "automatically terminate[d] on the occurrence of a specified event which may or may not occur".⁹¹ As a matter of fact, grants of fees simple determinable in whole or in part on breach or fulfilment of conditions subsequent were common during the early colonial period in New South Wales and Van Diemen's Land.⁹² A notable example was the grant by the Governor of New South Wales in 1823 of 1400 acres of land "reserving to His Majesty ... any quantity of land, not exceeding ten acres, in any part of the said grant, as may be required for public purposes" held in Cooper v Stuart⁹³ to have "carried" to the grantee "the whole 1400 acres, but subject to a defeasance as to 10 acres".

The argument of the Commonwealth invites close attention to the common law rule according to which native title rights and interests were and continue to be "recognised" and according to which, before the commencement of the Native Title Act on 1 January 1994, native title rights and interests once "recognised" were able to be "extinguished".⁹⁴ The common law rule must be understood having regard to its formulation by Brennan J (with the agreement of Mason CJ and McHugh J) in Mabo [No 2] and to the considerations which informed that formulation. The common law rule so formulated must also be understood having regard to its subsequent exposition in Western Australia v The Commonwealth (Native Title Act Case),⁹⁵ Wik Peoples v Queensland,⁹⁶ Fejo v Northern Territory,⁹⁷ Yanner v Eaton,⁹⁸ The Commonwealth v Yarmirr,⁹⁹ Western Australia v Ward,¹⁰⁰ Yorta Yorta Aboriginal Community v Victoria,¹⁰¹ Akiba v The Commonwealth,¹⁰² Western Australia v Brown,¹⁰³ and Queensland v Congoo.¹⁰⁴

Native title is "not an institution of the common law".¹⁰⁵ That is to say, "native title rights and interests are not created by and do not derive from the common law".¹⁰⁶ There is accordingly no reason why native title rights and interests should be thought to correspond in their nature or incidents to any right or interest known to the common law or equity to be capable of being created by grant, whether conditional or unconditional.

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory."¹⁰⁷ "The nature and incidents of native title" are "ascertained as a matter of fact by reference to those laws and customs".¹⁰⁸ The underlying existence of the traditional laws and customs ascertained as a matter of fact is accordingly "a necessary pre-requisite for native title".¹⁰⁹

Whilst the underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, the underlying existence of those traditional laws and customs is not "a sufficient basis for recognising native title".¹¹⁰ "Recognition" of native title at common law is by force of the common law itself:¹¹¹

The concept of "radical title" is linked in the argument of the Commonwealth on the second ground of its appeal to the existence of sovereign power to extinguish native title rights and interests recognised at common law. In particular, the Commonwealth notes that in Mabo [No 2] Brennan J accepted that the common law's recognition of native title could not fracture a "skeletal principle of our legal system"¹²⁰ and that native title survived the Crown's acquisition of sovereignty but "burdens the Crown's radical title".¹²¹ In describing the power to extinguish native title upon the acquisition of sovereignty, Brennan J observed that "on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power".¹²² On the Commonwealth's argument, that should be taken to mean that the common law's recognition of native title was subject to the exercise of that new sovereign power. The submissions of the Attorney-General for Queensland, supported by the Attorney-General for Western Australia, are to similar effect.

The Commonwealth's argument invites consideration of the significance of radical title and the nature of that "new sovereign power". The concept of "radical title" was introduced in Mabo [No 2] by reference to St Catherine's Milling and Lumber Co v The Queen¹²³ and Amodu Tijani v Secretary, Southern Nigeria,¹²⁴ not to explain recognition or cessation of recognition of native title at common law but to explain how common law doctrines which assume the ultimate legal title of the Crown to land (notably the doctrines of estates and tenures) can coexist with common law recognition of native title rights and interests in relation to that land.¹²⁵

The Commonwealth's notion that sovereign power to grant or appropriate an interest in land, which operates to extinguish a native title right or interest at common law, somehow "derives" from "radical title" finds no support in Mabo [No 2] or in any subsequent authority. The existence of radical title has never been a pre-requisite to the common law recognising a native title right or interest: hence, a native title right or interest can be recognised in relation to waters at common law on the same basis as it can be recognised in relation to land at common law.¹²⁶ Nor has the existence of radical title ever been a pre-requisite to the common law ceasing to recognise a native title right or interest in consequence of an exercise of sovereign power: hence, a native title right or interest could be extinguished in relation to waters at common law on the same basis as it could be extinguished in relation to land at common law.¹²⁷ There is also no reason in principle why a native title right or interest could not be extinguished by paramount operation of Commonwealth legislation in relation to land situated in a State in respect of which radical title was held by the Crown in right of that State.¹²⁸

What is critical to appreciating the nature of "sovereign power", exercise of which can result in cessation of recognition of native title rights or interests at common law, is the explanation given in Mabo [No 2] that "under the constitutional law of this country, the legality (and hence the validity) of an exercise of a sovereign power depends on the authority vested in the organ of government purporting to exercise it: municipal constitutional law determines the scope of authority to exercise a sovereign power over matters governed by municipal law, including rights and interests in land".¹²⁹ Sovereign power in the relevant municipal law sense is power to create and to extinguish rights and interests by force of law. It need hardly be added that, under the constitutional law of this country, a valid – that is to say, legally authorised and legally effective – exercise of governmental power to create or to extinguish a right or interest protected by the common law could only be constituted by either a constitutionally authorised exercise of legislative power or a constitutionally authorised and statutorily permitted exercise of executive power.

In short, "[n]ative title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon [the executive]".¹³⁰ Not otherwise.

There was much discussion in Mabo [No 2] of the prerogative power to dedicate or alienate interests in land, which was conceded by the common law to the Crown, and which was exercisable by the executive for and on behalf of the Crown at the time of the acquisition of sovereignty. As noted in Mabo [No 2], however, the prerogative was abrogated by statute in Queensland¹³¹ with the result that the power of the Crown to grant an interest in land became exclusively statutory,¹³² as it did in South Australia¹³³ and elsewhere throughout the Australian colonies in the course of the nineteenth century.

By force of the Northern Territory Acceptance Act 1910 (Cth) operating to pick up its prior abrogation by South Australian legislation,¹³⁴ the prerogative was never "carried into the executive authority of the Commonwealth"¹³⁵ in relation to land in the Northern Territory. On and from the acceptance of the Northern Territory by the Commonwealth upon its surrender by South Australia in 1911, the creation or extinguishment of a right or interest in relation to land in the Northern Territory protected by the common law has only ever been able to occur by or under Commonwealth or Territory legislation. In the context of the alleged acts of extinguishment the subject of this appeal, that is the only relevant form of "new sovereign power" spoken of in Mabo [No 2] and that power must be exercised in conformity with the Constitution.

Whatever form a constitutionally authorised exercise of legislative power or a constitutionally authorised and statutorily permitted exercise of executive power might have taken in the Northern Territory or in any other part of Australia before the commencement of the Native Title Act, however, such an exercise of power resulted in the extinguishment – cessation of recognition – of a native title right or interest previously recognised at common law only if the exercise of power created a right or interest (whether by appropriation or conferral)¹³⁶ or imposed a prohibition¹³⁷ which was "inconsistent" with the native title right or interest continuing to be translated into a right or interest existing at common law.

Whether or not there was an inconsistency which resulted in the extinguishment of a native title right or interest is a question of law.¹³⁸ The answer to that question of law depends solely on a comparison of the legal incidents of the native title right or interest previously recognised at common law with the legal incidents of the right or interest appropriated or conferred or of the prohibition imposed. Either the two are inconsistent or they are not. Recognition of the native title right or interest at common law would cease if, and only if, there was "logical antinomy between them".¹³⁹

Is the cessation of recognition of a native title right or interest upon the creation of an inconsistent right or interest a consequence of the inherent defeasibility of the native title right or interest upon the occurrence of such a contingency? Or is the cessation of recognition of the native title right or interest no more than an orthodox instance of an authorised and legally effective exercise of legislative or executive power prevailing over the operation of the antecedent common law? Putting it another way, is the common law rule of recognition of native title rights and interests a conditional rule in the sense that such rights and interests are recognised only on condition that recognition will be withdrawn on an authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition? Or is the common law rule of recognition of native title rights and interests an absolute rule in the sense that such rights and interests are recognised but if there is a subsequent authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition, recognition will be withdrawn not as a result of the inherent defeasibility of the native title right or interest but because of the effect of the subsequent exercise of power on the antecedent recognition? If the former, there is no "taking" of the bundle of rights comprising the enforceability and protection of native title rights and interests that the common law rule of recognition provides. If the latter, there is such a "taking" as the withdrawal of recognition takes from the native title holders that bundle of rights. In neither case are the underlying native title rights and interests themselves acquired. Those native title rights and interests continue for so long as traditional laws and customs dictate.

Acceptance or rejection of the statement by Gummow J in Newcrest, and with it the argument of the Commonwealth, turns on the choice between these competing views.

Three considerations combine to warrant rejection of the statement of Gummow J, and with it the argument of the Commonwealth. The preferable view is that the common law rule of recognition was and remains absolute. On that view, cessation of recognition of a native title right or interest at common law upon a valid exercise of legislative or executive power before the commencement of the Native Title Act was, and was no more than, the consequence of a subsequent legally authorised and legally effective exercise of legislative or executive power operating of its own inherent force to prevail over the operation of the antecedent common law rule of recognition.

The first consideration is as obvious as it is fundamental. It is that our constitutional system makes it unnecessary to postulate the inherent defeasibility of a native title right or interest recognised at common law in order for the recognition of the native title right or interest to yield to a subsequent legally authorised and legally effective exercise of legislative or executive power. Inherent in the nature of a subsequent legally effective exercise of legislative or executive power which is inconsistent with an antecedent common law rule is that the subsequent exercise of power will prevail over the operation of the antecedent common law rule.

The second consideration is that to postulate the inherent defeasibility of a native title right or interest recognised at common law is to attribute to the right or interest translated by the common law rule of recognition and enforceable at and protected by the common law a new characteristic, extrapolated from the reasoning of Gummow J in Newcrest. The newly attributed characteristic of inherent defeasibility would be one which, as a matter of law, would not need to be a characteristic of the same native title right or interest as existing under traditional laws and customs to be capable of common law recognition and which, as a matter of fact, would almost certainly not be a characteristic of that native title right or interest as so existing. The protection afforded to the native title holders by the common law rule of recognition would therefore be of a right or interest that is, by reason and to the extent of the inherent defeasibility, less than the right or interest which the native title holders have under their traditional laws and customs. The native title right or interest as translated by the common law rule would be different from and inferior to the underlying native title right or interest existing under traditional laws and customs.

The third consideration is that to attribute such a characteristic to a native title right or interest as translated by the common law rule of recognition in the absence of constitutional necessity for doing so would run counter to the fundamental consideration which impelled the formulation of the common law rule of recognition explained in Mabo [No 2]. The fundamental consideration was there explained to have been to bring the common law into conformity with "the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system".¹⁴⁰ The reference to "human rights" in this explanation must be understood as encompassing "the human right to own and inherit property (including ... to be immune from arbitrary deprivation of property)" identified in Mabo [No 1].¹⁴¹

Were a native title right or interest as recognised under the common law rule to be treated as defeasible at common law in circumstances where the native title right or interest existing under traditional laws and customs is not, the common law rule of recognition formulated in Mabo [No 2] would undermine the motivating rationale of the decision in that case, of ensuring that all persons, including native title holders, are equal before the law in the enjoyment of their human right to own and inherit property. As was stated in Mabo [No 2], to continue adherence to the common law's enlarged notion of terra nullius (that the prior occupation of indigenous inhabitants of a colony could be ignored if those inhabitants were perceived to be "without laws, without a sovereign and primitive in their social organization"¹⁴²) so that "the Crown acquired absolute beneficial ownership of land" on the acquisition of sovereignty would have "destroy[ed] the equality of all Australian citizens before the law" and perpetuated injustice based on an historical fiction.¹⁴³ In the present case, to adopt the conditional common law rule of recognition of native title rights and interests would destroy that equality and perpetuate its own form of injustice. In the end, it is adherence to that motivating rationale of equality before the law that compels rejecting the statement by Gummow J in Newcrest, and with it the argument of the Commonwealth.

In consequence, the Commonwealth's argument, relying on descriptions of native title rights and interests recognised at common law as inherently fragile, goes too far in equating the metaphor of inherent fragility with the legal status of inherent defeasibility. The true position is that:¹⁴⁴

The Commonwealth's argument against the Full Court's construction on the appeal is that, unless the provision created a right to the minerals the subject of the exception and reservation in the Crown, the provision would not have been efficacious. This is because, the Commonwealth argues, an unauthorised taking of those minerals would have been remediable at the time of the grant of the pastoral lease only by an information of intrusion at common law. According to the Commonwealth, the information of intrusion would have been available only if the Crown had "exclusive possession", equating to full beneficial ownership, of those minerals. Merely to have withheld the minerals or kept them back from the grant, and thereby to have done no more than to have retained radical title to the minerals, the Commonwealth argues, would have been insufficient to support the information of intrusion.

The correctness of the proposition that the Crown's recourse against an unauthorised taking of minerals the subject of the exception or reservation was limited to an information of intrusion at common law can be assumed in the Commonwealth's favour without needing to be decided. The argument that the Crown required full beneficial ownership of the minerals to maintain the information of intrusion must be rejected.

An information of intrusion was a prerogative remedy "in the nature of a civil action at the suit of the Crown" able to be "instituted for the purpose of obtaining satisfaction in damages for some injury to Crown possessions".¹⁵² The civil action was understood to be "in the nature of an action of trespass quare clausum fregit", meaning that it "lay for an invasion of the plaintiff's land and damage to that land – the ordinary trespass of modern law – rather than for a dispossession".¹⁵³ By the common form of the information, the Attorney-General asserted that specified land was in the "possession" of the Crown and that the defendant had "intruded" into that possession.¹⁵⁴ A defendant who had in fact intruded onto the land needed to establish a superior right to possession of the land to that of the Crown in order not to be found liable as a trespasser.¹⁵⁵

There is no reason in principle to consider that the "possession" of the Crown vindicated by an information of intrusion was limited to absolute beneficial ownership. The common law has only ever been concerned in an action for trespass with the relative strengths of the claims to possession of the parties to an action.¹⁵⁶ The plaintiff has never needed to prove that no third party has a better right to possession than the plaintiff, and the defendant has never been able to meet the claim of the plaintiff by proving that a third party has a better right to possession. That has been so for a trespass to land¹⁵⁷ as it has been for a trespass to goods.¹⁵⁸

True it is that the information of intrusion in Attorney-General v Brown was held to be available to remedy an intrusion into what was there described as having been "always the property of the Crown", the effect of the reservation of coal from the Crown grant of the leasehold interest being said to be that the coal "never passed to the [lessee]".¹⁵⁹ And true it is that Mabo [No 2] overruled Attorney-General v Brown to the extent that Attorney-General v Brown held that unalienated land had no proprietor other than the Crown, which depended on the fiction of the enlarged notion of terra nullius. Attorney-General v Brown had so held in rejecting an argument that the Queen "never had any property in the waste lands of the Colony" such that the Attorney-General acting on her behalf was "not entitled to maintain trespass, or bring an information of intrusion, which assumes that she had possession".¹⁶⁰

But none of that means that the radical title of the Crown – which Mabo [No 2] recognised to be the common law's postulate of the doctrine of tenure in a territory over which the Crown acquired sovereignty, enabling the Crown, in the exercise of sovereign power, to grant interests in land to third parties or appropriate land to itself and as coexisting with native title rights and interests recognised at common law – would have been insufficient to support an information of intrusion at common law, including the information of intrusion in Attorney-General v Brown itself. No issue concerning the effect of native title rights arose in that case. They were simply ignored.

The Commonwealth relies for the contrary proposition on an explanation of Attorney-General v Brown given by Gageler J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act.¹⁶¹ That explanation was that, even construing the reservation in Attorney-General v Brown as merely having withheld coal from the leasehold estate granted to the lessee, "the Crown as represented by the Attorney-General would still have had the possession necessary to found an action for intrusion".¹⁶² The point was that Mabo [No 2] did not deny the existence, subject to legislative control, of non-statutory executive power to manage unalienated land in which radical title coexisted with native title.

That non-statutory executive power enabled radical title of the Crown to support an information of intrusion at common law to remedy a trespass to unalienated land in which radical title coexisted with native title accords with and complements the adoption in Mabo [No 2]¹⁶³ and again in The Commonwealth v Yarmirr¹⁶⁴ of explanations of radical title in St Catherine's Milling and Lumber Co v The Queen¹⁶⁵ as a "substantial and paramount estate" and in Amodu Tijani v Secretary, Southern Nigeria¹⁶⁶ as "a pure legal estate, to which beneficial rights may or may not be attached". In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,¹⁶⁷ French CJ, Kiefel, Bell and Keane JJ said that "[t]he foundation of the decision in Mabo [No 2] was the recognition by the majority ... that the radical title to the land in the colony of New South Wales acquired by the Crown upon the establishment of the colony did not encompass absolute beneficial ownership of the land, even though the exercise of the Crown's radical title might create rights of ownership in itself or dispose of them in favour of others". The bringing of an information of intrusion to remedy a trespass to unalienated land can similarly be described as an "exercise of the Crown's radical title".

It is one thing to say that the coexistence of the Crown's radical title with native title rights and interests recognised at common law meant that the Crown could not have relied on its radical title to have succeeded in a proceeding in the nature of an action for trespass against native title holders occupying unalienated land. It would be quite another thing to say that the Crown could not have relied on its radical title to have succeeded in a proceeding in the nature of an action for trespass against a non-native title holder intruding onto that unalienated land. The Commonwealth's argument both overstates the possessory interest required to support the information of intrusion at common law and understates the legal significance of radical title at common law and with it the capacity of an executive government to seek an exercise of judicial power to remedy a trespass to unalienated land in which radical title coexisted with native title. Accordingly, its argument that the provision of the pastoral lease "excepting and reserving ... all minerals" must be construed as having conferred, by way of appropriation, title in those minerals exclusively in the Crown in right of South Australia for the exception to have efficacy must be rejected. Effect must be given to the ordinary meaning of the text of the provision that it was, as it said, a mere exception or reservation in favour of the Crown of all minerals. It was not an appropriation to the Crown of those minerals.

The result is that the final ground of the appeal also fails.

Put in different terms, the Gumatj Clan contend that in the period from 1911 to 1978, a number of grants or legislative acts took place (namely, the Compensable Acts) which, if valid, may have been inconsistent with the continued existence of the claimants' non-exclusive native title and may have extinguished or impaired their non-exclusive native title at common law. In particular, the Gumatj Clan contend that if the grants or acts had any extinguishing effect then those grants or acts were invalid by reason of the failure to provide just terms to the Gumatj Clan as required by s 51(xxxi) of the Constitution. It is on this basis that the Gumatj Clan contend that each of the Compensable Acts is a "past act" within the definition of a "past act" in the Native Title Act, that those acts are attributable to the Commonwealth and that, because the acts are now taken to be effective to grant or vest the rights they purported to grant or vest, the Gumatj Clan are entitled to "just compensation" for the effects of the Compensable Acts on their non‑exclusive native title under ss 14, 17, 18 and 228 of the Native Title Act.

Under the Native Title Act,¹⁷⁴ a "past act" is an act that occurs at any time before 1 July 1993 if it is a legislative act, or before 1 January 1994 if it is any other act, when native title existed in relation to particular land and waters and, apart from the Native Title Act, the act was invalid to any extent, but would have been valid to that extent if native title did not exist. In sum, the Gumatj Clan contend certain acts done by the Commonwealth are "past acts" because they were invalid by operation of s 51(xxxi) of the Constitution but are now taken by the Native Title Act to be valid on terms that the Commonwealth must pay compensation.

This appeal concerns the position of native title, as recognised by the common law, between 1911 and 1978, when the Commonwealth administered land in the Northern Territory. The appeal, and these reasons, therefore, are confined to the position of native title at common law prior to the enactment of the Native Title Act.¹⁷⁵

The Compensable Acts – past acts attributable to the Commonwealth in respect of the Claim Area (or part thereof) for which the claimants contend they are entitled to compensation – comprise:¹⁷⁶

For the reasons that follow, the appeal should be dismissed. Because the argument in this Court did not focus on the reasoning of the Full Court, and, at times, took a course different to that in the Full Court, these reasons will not deal directly with the Full Court's reasoning.

These reasons are organised as follows:

Not only did native title to land survive the Crown's acquisition of sovereignty and radical title,¹⁹⁸ but the rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title.¹⁹⁹ After sovereignty, native title could be acquired outside traditional laws and customs only by the Crown.²⁰⁰ It is only on acquisition by the Crown of native title that the Crown's radical title is expanded to absolute ownership "for then there is no other proprietor" than the Crown.²⁰¹ It is in that sense correct to state that "on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power".²⁰²

But the exercise of sovereign power in this country is not at large.²⁰³ "[U]nder the constitutional law of this country, the legality (and hence the validity) of an exercise of a sovereign power depends on the authority vested in the organ of government purporting to exercise it".²⁰⁴ As native title is not granted by the Crown, "the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive".²⁰⁵ That requirement, which is "patently the right rule", flows from the seriousness of the consequences to Indigenous Australians of extinguishing their traditional rights to and interests in land.²⁰⁶

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 consistent with the continued enjoyment of native title.²⁰⁷ A law which reserves or authorises the reservation of land from sale for the purpose of permitting Indigenous Australians and their descendants to enjoy their native title works no extinguishment.²⁰⁸ "Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests", such as authorities to prospect for minerals²⁰⁹ or the grant of a pastoral lease.²¹⁰ "Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency."²¹¹

As native title comprises rights and interests of different kinds, extinguishment is not necessarily a single act; the individual rights or interests which comprise native title may be extinguished from time to time. As such, "native title" may be likened to a "single large painting", in which – with each act that extinguishes a particular native title right or interest – holes are successively punched.²¹² In the absence of complete extinguishment, the "painting" remains; "native title survives and is legally enforceable".²¹³

In sum, there are three fundamental, well established premises concerning native title in light of which the issues raised in this appeal must be addressed. First, native title is recognised by the common law of Australia. Second, native title rights and interests may be extinguished by (and only by) the exercise of sovereign power.²¹⁴ Third, extinguishment depends on inconsistency between what is granted by the exercise of sovereign power and native title rights and interests. Extinguishment does not depend in any way upon any characteristic (inherent or otherwise) of the rights and interests which are extinguished.

In sum, s 51(xxxi) – the constitutional guarantee – will only apply if there is a law that has the effect that someone else acquires an interest in the property of another and where the law is properly characterised as a law with respect to the acquisition of property.

No decision of this Court has decided whether native title is "property" and capable of "acquisition" for the purposes of s 51(xxxi).²²⁷ In this Court, the Commonwealth accepted native title is "property" for the purposes of s 51(xxxi). That concession was properly made. The Commonwealth's contention, however, was that native title is property not subject to s 51(xxxi) because it is "inherently defeasible". The description of native title as "inherently defeasible" is not found in the authorities. The Commonwealth used this expression to refer to the fact that native title, as explained in Mabo (No 2), is recognised by the common law as subject to extinguishment by an inconsistent grant.

The Commonwealth's argument that native title is "property" for the purposes of s 51(xxxi), but the "property" is "inherently defeasible" and thus outside the scope of s 51(xxxi), is internally inconsistent. On its face, the Commonwealth's argument asserts native title is both a form of "property" and not a form of "property" protected by s 51(xxxi). For the following reasons, the contention that native title is "inherently defeasible" and, for this reason, outside the scope of the s 51(xxxi) protection is rejected.

Native title is not "created by" and does not derive from the common law.²⁴⁰ In Mabo (No 2), it was held that, at sovereignty, the common law accepted that "the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty" and "[t]hose antecedent rights and interests thus constitute[d] a burden on the radical title of the Crown".²⁴¹ What we call "native title" takes its content from the traditional laws acknowledged, and the traditional customs observed, by Indigenous Australians. "Native title" is neither an institution of the common law, nor a form of common law tenure, but it is recognised by the common law.²⁴² Native title involves an intersection of two systems: the common law recognising the traditional laws and customs of Indigenous Australians.²⁴³

As counsel for the Gumatj Clan put it "[w]e are dealing with a form of title that reflects the social, cultural, economic, and religious framework of the society of Indigenous Australians, who occupied the country tens of thousands of years before the arrival of the sovereign Crown". Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country. It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution.

Native title is different from what common lawyers identify as property rights. While native title may be characterised as rights and interests with respect to land and waters, equating native title with proprietary rights in relation to land and waters is "artificial and capable of misleading".²⁴⁴

First, native title may continue to exist at traditional law, even once those rights and interests have been extinguished by the common law.²⁴⁵ The metaphor of "recognition" reflects the proposition that the common law cannot and does not transform traditional laws and customs, and cannot and does not transform or alter the relationships to country which they define, or the rights and interests which native title holders would recognise as continuing to exist under traditional laws and customs.²⁴⁶

Second, "native title does not exhibit the uniformity of rights and interests of an estate in land at common law".²⁴⁷ The native title rights and interests in relation to land and waters will vary from Indigenous group to Indigenous group. To put it in different terms: "[t]he content of native title, its nature and incidents, will vary from one case to another".²⁴⁸ The common lawyer's "ingrained habits of thought and understanding"²⁴⁹ must be adjusted to reflect the diverse rights and interests which arise under the rubric of native title.²⁵⁰ So, for example, for the purposes of the determination and compensation applications before the Federal Court, the Gumatj Clan claim non-exclusive native title rights and interests to live on the land, to travel over it, to hunt, fish and forage, to take and use resources, to have access to and use the natural water, to engage in cultural and social activities (including conducting cultural practices relating to birth and death), and to protect sites of significance and areas or objects of cultural importance.

Third, native title involves a "communal" or "special collective" set of rights or interests "vested in an Aboriginal group by virtue of its long residence and communal use of land or its resources".²⁵¹ The particular rights and interests which comprise native title may be communal, group (eg the right to conduct cultural practices) or individual.²⁵² The "communal" or "collective" nature of native title, as well as the communal rights and interests it may comprise, do "not correspond to the concept of ownership as understood by the land law of England".²⁵³

Fourth, native title has a cultural, spiritual or metaphysical aspect that has no analogue in European law: it is "something over and above and separate from 'enjoyment' in the sense of the ability to engage in activity or use"; it "refers to a defining element in a view of life and living".²⁵⁴ It is a connection with land where the land "owns" the people and the people are responsible for the land. It is a two-way connectedness the law has tried to capture by speaking of spiritual connection.²⁵⁵ It is a "religious relationship ... the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole".²⁵⁶

Native title is "property"; property which is enduring, substantial and significant. To hold otherwise would be contrary to the characterisation of native title in Mabo (No 2), which has been affirmed by many subsequent decisions of this Court including Wik,²⁵⁷ Fejo v Northern Territory,²⁵⁸ Yanner v Eaton,²⁵⁹ Western Australia v Ward,²⁶⁰ and Queensland v Congoo.²⁶¹ Indeed, failure to recognise native title as protected by s 51(xxxi) would be inconsistent with the central basis for recognition of native title in Mabo (No 2). In deciding to overrule the cases that had held that the Crown acquired full beneficial ownership of the land upon sovereignty, Brennan J said "[t]o maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land."²⁶²

In light of the views just expressed about the nature of native title as "property" to which s 51(xxxi) attaches, it is unnecessary to consider the alternative contention of the Rirratjingu Respondents that in considering the "property" for s 51(xxxi), the traditional owners of native title held another distinct form of "property" in addition to the rights and interests recognised in Mabo (No 2) to which s 51(xxxi) attaches – namely, a right analogous to a chose in action.

In Mabo (No 2), Brennan J explained that "[s]overeignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory".²⁷⁸ A private right or interest granted by the Crown can be extinguished by the Crown with statutory authority.²⁷⁹ Likewise, native title will be extinguished by the grant of an interest under statute wholly or partially inconsistent with one or more of the rights and interests comprising that native title.²⁸⁰

The only possible difference in this respect between native title and other common law property rights is how the legislature must manifest the necessary intention to extinguish those rights. In the case of common law property rights, a statute which confers a power on the Crown will be interpreted, so far as is consistent with the purpose for which the power is conferred, to stop short of authorising any impairment of an interest in land granted by the Crown, or dependent on a Crown grant.²⁸¹ The Commonwealth referred to this as the "non‑derogation" principle. In substance, this is an aspect of the principle of legality. There is no equivalent principle affecting the conferring of any power on the Crown the exercise of which is apt to extinguish native title.²⁸² Rather, in the case of native title, the exercise of power must reveal a "clear and plain intention" to extinguish native title, which will be the case where an exercise of statutory power creates an inconsistent right (even if the grant of the power does not reveal an express intention to extinguish native title).²⁸³

The possible difference between how the legislature must manifest the necessary intention to extinguish common law property rights (namely, subject to the non-derogation principle) and native title is insufficient to justify treating native title differently from other common law property rights protected by s 51(xxxi). The exercise of the power must reveal a "clear and plain intention" to extinguish native title,²⁸⁴ acknowledging as is necessary, in the case of common law property rights, that there must be a clear threshold for extinguishing native title because of the "seriousness of the consequences" that follow from extinguishing traditional rights and interests.²⁸⁵

To seek to place determinative significance on the fact the extinguishment of native title by statute is not subject to the non‑derogation principle would be to adopt a distinction of form over substance, which is contrary to long established and unchallenged principles of s 51(xxxi) decisions of the Court.²⁸⁶ Whether the law extinguishes native title by an exercise of sovereign power that reveals a clear and plain intention to extinguish native title, or by legislation which expressly evinces an intention to extinguish native title, native title is extinguished.

Finally, the Commonwealth submitted native title is "inherently defeasible" (and for this reason, not protected by s 51(xxxi)) because the "foundational characteristic of native title ... is that it has its source in another legal system" – traditional laws and customs – such that there is a "hierarchy" so far as native title and common law property rights are concerned. To accept that particular argument, or the Commonwealth's wider submissions about inherent defeasibility and s 51(xxxi), would create a distinction between native title and other common law proprietary rights contrary to the equality of all Australian citizens before the law, which the Court recognised and sought to address with the recognition of native title in Mabo (No 2).²⁸⁷

Third, the concept of "inherent defeasibility" in s 51(xxxi) jurisprudence was developed in the historical context of the dawn of the age of statutes, where the Court was confronted with an increasing number of s 51(xxxi) cases concerning statutory rights.²⁹² This is not to foreclose the possibility that the concept may, in another case, be relevant outside the context of statutory rights. But any extension of the principle would need to take account of the historical context in which it was developed. The Commonwealth's submission that there are no reasons of underlying principle or authority that confine the concept to statutory rights ignores this historical context.

Fourth, the concept of "inherent defeasibility" in the s 51(xxxi) authorities does not regard the mere contingency of legislative extinguishment as sufficient for the right to fall outside the protection afforded by s 51(xxxi). Those authorities treat the concept of "inherent defeasibility" as informing consideration of whether the right is "property" or subject to "acquisition" for the purposes of s 51(xxxi).

In Health Insurance Commission v Peverill,²⁹³ Brennan J considered that the fact the statutory right at issue²⁹⁴ did not have "any degree of permanence or stability", and thus was "not a right of a proprietary nature", led to the conclusion the right was not protected by s 51(xxxi).²⁹⁵ Then, in The Commonwealth v WMC Resources Ltd,²⁹⁶ Toohey J explained that although the rights in issue had no existence except under statute, it did not follow that they were not protected by s 51(xxxi); it was necessary to analyse the particular rights at issue to assess whether they were "transient, defeasible and did not give rise to the possibility of acquisition".²⁹⁷

In Attorney-General (NT) v Chaffey, the plurality said it is too broad a proposition to say the contingency of subsequent legislative modification or extinguishment removes all statutory rights and interests from the scope of s 51(xxxi); it was necessary to consider the nature of the rights and interests at issue.²⁹⁸ And in Cunningham v The Commonwealth, the plurality, following Chaffey, said where the "property" has no existence apart from statute, it is necessary to consider the nature of the proprietary right.²⁹⁹

That view is correct as a matter of principle because "inherent defeasibility", in the sense of a grant being subject to the contingency of extinguishment by statute, describes a characteristic of any and every "property" right. Depending on the terms of the contingency, and other features of the right, the contingency may not be the determinative feature of that right for the purposes of determining whether it should be afforded s 51(xxxi) protection. For example, the Crown may grant an interest in fee simple subject to the contingency that it may be acquired for public purposes during a time of war. The land is so acquired 10, 20 or 200 years (it matters not which) after the initial grant. If the mere contingency from years prior was sufficient to take the acquisition outside the scope of s 51(xxxi), the status of s 51(xxxi) as a "constitutional guarantee"³⁰⁰ would be gravely compromised. The Commonwealth could avoid the s 51(xxxi) "just terms" guarantee by making every grant of a right that is "property" subject to the contingency of extinguishment.

Native title cannot be characterised as lacking "permanence or stability".³⁰¹ Native title is not "transient".³⁰² Native title is an enduring, substantial, and significant form of "property" that both accords with and is beyond the common lawyer's conception of "property". Native title is therefore not "inherently defeasible" in the sense in which that term is used in the context of statutory rights, even if the statutory rights cases are relevant, and they are not.

Teori Tau concerned a challenge to the validity of Ordinances made under the New Guinea Act 1920 (Cth), the New Guinea Act 1920‑1926 (Cth) and the Papua and New Guinea Act 1949-1964 (Cth) on the ground they provided for the compulsory acquisition of property without providing just terms for the acquisition.³³³ The plaintiff argued the Ordinances had purported to vest in the Crown certain minerals to which Indigenous people of New Guinea claimed they were entitled.³³⁴ The plaintiff argued the challenged laws were contrary to s 51(xxxi) of the Constitution and the Commonwealth had no other power to authorise the acquisitions without providing just terms.³³⁵ The judgment of the Court was delivered, ex tempore, by Barwick CJ.³³⁶ The Court gave two primary reasons for s 122 not being subject to s 51(xxxi): first, s 51 is concerned with "federal legislative power"; and secondly, the terms of s 122 are sufficiently "plenary in quality" to cover the acquisition of property.³³⁷

Subsequent judgments of the Court³³⁸ have since explained why Teori Tau should be overruled as a matter of principle. The reasons given in those judgments, in substance, reflect many of the arguments put to this Court in this appeal for why Teori Tau should be overruled and respond to many of the arguments put by the Commonwealth for why Teori Tau should not be overruled.

First, it is uncontroversial that because s 51(xxxi) includes a restriction on the power to legislate with respect to acquisitions of property, it "abstracts" that power from the other Commonwealth heads of power.³³⁹ This starting point accords with the status of s 51(xxxi) as a "constitutional guarantee", which is to be construed "liberally", and which has the purpose of preventing arbitrary exercises of power at the expense of a State or subject.³⁴⁰

The second proposition is that each provision of the Constitution, including s 122, is to be read together with other provisions of the Constitution. The fact s 122 is found in Ch VI of the Constitution, not Ch I, does not warrant construing s 122 "as though it stood isolated from other provisions of the Constitution which might qualify its scope".³⁴¹ Indeed, the Convention Debates indicate there was some suggestion (not adopted) that s 122 should be placed in what became s 52 of the Constitution.³⁴² In sum, s 51(xxxi) should be read with s 122 and not "torn from the constitutional fabric".³⁴³

It is now accepted that s 122 should not be read as "disjoined"³⁴⁴ from the rest of the Constitution, notwithstanding its placement in Ch VI. In Spratt v Hermes,³⁴⁵ Barwick CJ did state that s 122 is "non‑federal in character" and "as large and universal a power of legislation as can be granted".³⁴⁶ However, his Honour explained that "this does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than [Ch] VI are applicable to the making of laws for the Territory or to its government".³⁴⁷ As his Honour went on to state, it would be "an error to compartmentalize the Constitution, merely because for drafting convenience it has been divided into chapters"; the place of a provision in the Constitution will only provide assistance when "resolving ambiguities".³⁴⁸

Treating s 122 as disjoined from s 51(xxxi) would also produce absurdities.³⁴⁹ Not only was the area of the Northern Territory at Federation within a State,³⁵⁰ but s 122 authorises the Commonwealth Parliament to make laws the operation of which may extend to the States. For example, it would be a "curious result" for s 51(xxxi) not to apply to land acquired in a State to establish a tourist bureau for a territory. As Gummow J succinctly put it in Newcrest, "the Commonwealth would be in a position to impose upon those holding property in a State a burden from which the Constitution was designed to protect them".³⁵¹ In addition, consistent with the broad concept of "property" for s 51(xxxi), incorporeal property such as a patent, design or registered trade mark cannot necessarily be situated in any particular State or territory.³⁵² In light of this, the constitutional guarantee "cannot be coherently construed" if there is a dichotomy between the situation of property in a State and in a territory.³⁵³

Thirdly, there are three textual bases for s 51(xxxi) applying to s 122 in the same way it applies to other heads of power in s 51. The first basis is that s 51(xxxi) confers power to make laws with respect to the acquisition of property for "any purpose in respect of which the Parliament has power to make laws" and s 122 empowers Parliament to make laws "for the government of any territory". Section 122 identifies a legislative "purpose" within the meaning of s 51(xxxi) of the Constitution, being the power to make laws for the government of the territories.³⁵⁴

The second basis is that the chapeau to s 51 refers to the power to make laws for the people of "the Commonwealth". "The Commonwealth", as it appears in covering cl 5 of the Constitution, includes the territories.³⁵⁵ The third basis is that s 51(xxxi) extends to acquisition of property from "any person" (and is not limited to acquisitions of property from any State).³⁵⁶ "Any person" plainly extends to the people of the territories.

The fact that s 51 is expressed as "subject to this Constitution" does not alter that conclusion. It does not subordinate s 51 to s 122; the presence of "subject to this Constitution" in s 51 and its absence from s 122 does not mean s 122 is not to be read with the Constitution as a whole.³⁵⁷ The phrase "subject to this Constitution" in s 51 serves to emphasise that the s 51 heads of power are restrained by limitations contained elsewhere.

Fourthly, nothing about the nature of the power conferred by s 122 displaces s 51(xxxi). Section 51(xxxi) will not apply to laws in connection with which "just terms" is an "inconsistent or incongruous" notion.³⁵⁸ Acquisition without just terms must be a "necessary or characteristic feature" of the means which the law selects to achieve an objective which is within power.³⁵⁹ Examples of such laws include laws levying taxes,³⁶⁰ seizing the property of enemy aliens, imposing fines and exacting penalties and forfeitures.³⁶¹ In these cases, the "just terms" requirement does not apply because to characterise these exactions as an acquisition of property would be "incompatible with the very nature of the exaction".³⁶² There is nothing in the nature of the power in s 122 which suggests it displaces, let alone in fact displaces, s 51(xxxi).

In relation to the nature of the power in s 122, the Commonwealth submitted that the breadth and flexibility required by the text and context of s 122 would be undermined by the application of s 51(xxxi) to laws solely supported by s 122. To exclude the people of the territories from the "constitutional guarantee" of s 51(xxxi) would have required clear expression.³⁶³ The absence of the phrase "subject to this Constitution" in s 122 is not sufficient to supply the necessary contrary intention to displace the operation of s 51(xxxi).³⁶⁴ The scope of the power conferred by s 122 is also not "inconsistent or incongruous" with the application of s 51(xxxi). The fact s 122 is a "plenary" power does not mean it is without limits.³⁶⁵ Describing the power as "plenary" does not supply the necessary contrary intention to displace the operation of s 51(xxxi).³⁶⁶ In any event, there is no apparent reason why s 122 would be any less "plenary" in nature if the constitutional guarantee also applies to laws made under it.³⁶⁷

Fifthly, the fact that s 122 must be subject to s 51(xxxi) is reflected in the number of limitations outside Ch VI which have been held to apply to laws made under s 122 of the Constitution.³⁶⁸ The rationale for those limitations applying to s 122 is that otherwise the purpose behind the limitation would be defeated. Three should be noted.³⁶⁹

Section 90 constrains laws made under s 122.³⁷⁰ The purpose of the power is to ensure the Parliament, to the exclusion of the legislatures of both the States and the internal territories, may exercise s 90 powers. If s 122 authorised the creation of a legislature for an internal territory with those powers, it would be a "Trojan horse available to destroy a central objective of the federal compact".³⁷¹

Next, the Kable principle³⁷² applies to territory courts.³⁷³ It is necessary for the preservation of the structure of the Constitution and implicit in the terms of Ch III that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal. Because the territory courts may exercise the judicial power of the Commonwealth, it is therefore necessary that territory courts are subject to the Kable principle.³⁷⁴ And, of course, laws made under s 122 are subject to the implied freedom of political communication because discussion of matters at a territory level "might bear upon the choice that the people have to make in federal elections".³⁷⁵

Taking the same approach, the rationale behind s 51(xxxi) would be defeated if it were not to apply to Commonwealth laws made "for" the territories.³⁷⁶ The just terms guarantee relates not only to the States but to "persons".³⁷⁷ The purpose of the s 51(xxxi) limitation includes preventing arbitrary exercises of the power to acquire property at the expense of the individual.³⁷⁸ Achievement of this purpose necessitates that the limitation applies to protect individuals in the territories in the same way as it applies to protect those in the States in so far as Commonwealth laws are concerned.

Sixthly, s 51(xxxi) cannot be construed as a limit on only the powers contained in s 51, or within Ch I. The Commonwealth submitted s 51(xxxi) is a power to make laws with respect to the acquisition of property on just terms for "s 51 federal purposes". The text of s 51(xxxi) is not so confined.³⁷⁹ Moreover, this characterisation of s 51(xxxi) is at odds with authority. Section 51(xxxi) has been held to apply outside s 51 and, indeed, outside Ch I of the Constitution. In ICM Agriculture Pty Ltd v The Commonwealth, this Court held s 96 (in Ch IV) does not confer power on the Commonwealth to grant financial assistance to a State on terms and conditions requiring the State to acquire property other than on just terms.³⁸⁰

Finally, the reasoning in Teori Tau is in tension with other authorities.³⁸¹ In particular, it is contrary to the reasoning which underpinned Lamshed v Lake³⁸² and Spratt,³⁸³ which were decided before Teori Tau. The reasoning in Teori Tau involved at least three steps which were inconsistent with those authorities.³⁸⁴

The first flawed step was that Teori Tau took as one of its premises that s 122 of the Constitution is "the source of power to make laws for the government of the territories".³⁸⁵ The Court has long rejected the notion that a law necessarily has only one characterisation.³⁸⁶ That is, the Court has long rejected the notion that a law may only be supported by one head of constitutional power. It is more accurate to say s 122 is a source of power to make laws for the territories.³⁸⁷ Reflecting this, Spratt determined that a court of a territory may enforce laws made in reliance on a s 51 head of power in relation to acts occurring within that territory.³⁸⁸

The second flawed step was made by asserting (again, as a premise for the conclusion) the grant of power in s 122 is "general and unqualified".³⁸⁹ That premise dictates the conclusion. "Capital Duplicators**[³⁹⁰]** denies any proposition that the grant in s 122 is 'unlimited and unqualified in point of subject matter'".³⁹¹

The third flawed step was to assert s 51 is concerned with "federal legislative powers" as part of the distribution of legislative power between the Commonwealth and the States, whereas s 122 is concerned with the legislative power for the government of the Commonwealth territories, for which there is no such division of legislative power.³⁹² The notion s 122 is a "non‑federal" power has been discarded. In Lamshed, it was argued that "s 122 empowers the Parliament to make laws for the government of the Territory … as if the Commonwealth Parliament were appointed a local legislature in and for the Territory with a power territorially restricted to the Territory".³⁹³ Chief Justice Dixon "wholly reject[ed]" that interpretation.³⁹⁴ His Honour explained that "when s 122 gives a legislative power to the Parliament for the government of a territory the Parliament takes the power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia".³⁹⁵ The Court therefore held the challenged law was a "law of the Commonwealth" within the meaning of s 109 of the Constitution.³⁹⁶

For these reasons, Teori Tau should be overruled.

It follows that the Gaudron J view must also be overruled. In Newcrest, Gaudron J agreed with Gummow J's reasoning and conclusion that Teori Tau should be overruled.³⁹⁷ However, her Honour proposed an alternative basis for the conclusion that the challenged law must be subject to s 51(xxxi), which formed part of the ratio decidendi of the decision.³⁹⁸ Her Honour reasoned that "[o]n the assumption that par (xxxi) is to be read down so that it applies only to laws enacted under s 51, its terms, even when strictly construed, extend to a law a purpose of which is one 'in respect of which the Parliament has power to make laws [under s 51]'".³⁹⁹ As the challenged law in Newcrest was supported by the external affairs power in s 51(xxix) of the Constitution,⁴⁰⁰ this was an alternative route to the conclusion that it must be subject to s 51(xxxi). For the reasons explained above, the premise for this alternative route – that s 51(xxxi) is to be read down so that it applies only to laws enacted under s 51 – is incorrect.

All these considerations compel the conclusion that all laws supported by s 122, including any law of the Commonwealth Parliament which has no constitutional support other than under s 122 of the Constitution, are subject to s 51(xxxi). They leave no room for the Teori Tau view or the Gaudron J view. The operation of the constitutional guarantee to s 122 should not be denied.⁴⁰¹

Second, in Wik, Gummow J explained that "[t]he term 'reservation' in strict usage identifies something newly created out of the land or tenement demised" and that the term "reservation" "is inappropriate to identify an exception or keeping back from that which is the subject of the grant".⁴²⁴ However, his Honour again recognised there was and is an "Australian usage" of "reservation" which "was apt … to identify that which was withheld or kept back".⁴²⁵ The Commonwealth, the Northern Territory and the Queensland Attorney-General submitted this statement could not be relied upon because it was obiter and contrary to an unchallenged finding of the primary judge. Justice Gummow's statement in Wik, citing Wade, records the history of the meaning of "reservation" in the context of pastoral leases in Australia. On that basis, at least, Gummow J's statement is correct and persuasive.

The Commonwealth did not dispute that the "reservation" of minerals in item (l) involved a keeping back but contended that the "reservation" had a second function, which was to create a record of the Crown's assertion of property in the minerals or of conferring rights of ownership in the minerals on the Crown, on which an action in intrusion could be based, without the need for an office or inquest. This was said to be necessary because there was real uncertainty in the 1890s as to whether the Crown could bring an action in ejectment. The contention that the reservation had a second function must be rejected.

Whether or not the Crown could bring an action for ejectment in the 1890s, the Commonwealth's argument proceeded on the basis that it is legitimate to identify a legislative purpose apparent not from the Act, but only from the historical context at the time the legislation was enacted. That is, the Commonwealth's contention that the minerals reservation had a second function to create a record of the Crown's assertion of property in the minerals on which an action in intrusion could be based was derived from the historical context of the 1890s, not the 1899 Land Act read with the 1890 Crown Lands Act. This reverses the proper approach to statutory construction. A purpose ascertained from history cannot override the text. The purpose must be evident in the text.⁴²⁶

And, contrary to the Commonwealth's argument that the reservation in item (l) of Sch A to the 1899 Land Act was intended to create a record of the Crown's assertion of property in the minerals – the so called second function – the Act properly construed did not support the existence of that second function.

Nowhere does the 1899 Land Act (or the 1890 Crown Lands Act) expressly provide that any reservation from the grant of a pastoral lease confers an interest in the reserved subject matter on the Crown. At most, item (l) in Sch A provides that the exception or reservation is to be "in favor of the Crown". That language is more readily construed as a statement of the position as understood at the time. A reservation was "in favor of the Crown" because the "reservation" was a keeping back of the Crown's rights of full beneficial ownership in the land the subject of the pastoral lease (and minerals beneath the surface of that land), rather than a positive conferral of rights on the Crown. At that point in time, as has been explained, the Crown was under the misapprehension it had absolute beneficial ownership of all land in the Territory.⁴²⁷ Of course, that was an erroneous view of the law – at sovereignty, the Crown had radical title.⁴²⁸ Nonetheless, it is a matter of historical context which explains why the Act did not positively confer rights in land or minerals on the Crown. The fact that the reservation conferred rights of access also does not advance the Commonwealth's position. Conferring rights of access is consistent with the legislature proceeding on the basis the Crown had beneficial ownership of the reserved interests.

In sum, the Act properly construed, as well as the pre-Mabo (No 2) context, compel the rejection of the Commonwealth's contention. The function of item (l) in a pastoral lease was not for the Crown to assert property in the minerals, or to confer rights of ownership in the minerals on the Crown, because at that time the Crown understood or assumed, incorrectly, it had those rights.

The Commonwealth placed significant emphasis on a statement of Gageler J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("NSW Aboriginal Land Council").⁴²⁹ That case concerned whether two parcels of Crown land in Berrima, New South Wales, which remained dedicated for "gaol purposes" were lawfully "occupied" for the purposes of the definition of "claimable Crown lands" in s 36(1) of the Aboriginal Land Rights Act 1983 (NSW).⁴³⁰ The Land Council argued the occupation of the claimed land was unlawful without statutory authority.⁴³¹ The majority held that the land was lawfully occupied and was therefore not "claimable Crown lands".⁴³² Justice Gageler rejected the Land Council's argument on the basis that the New South Wales Constitution Act 1855 (Imp)⁴³³ confirmed the existence of non‑statutory executive power in the context of the system of responsible government provided for by the State's Constitution.⁴³⁴ In rejecting this argument, Gageler J set out the nature of the Crown's non‑statutory executive power since 1788.⁴³⁵

His Honour discussed Attorney-General v Brown,⁴³⁶ which concerned an action for intrusion brought by the Attorney‑General of New South Wales against a person who had engaged in mining coal the subject of an express reservation from a Crown lease granted in 1840 (prior to the enactment of legislation dealing with Crown grants of land).⁴³⁷ The Court's holding in Brown that the Crown was the absolute beneficial owner of all the land in New South Wales from the time of settlement was overruled in Mabo (No 2).⁴³⁸ That was the context for the following paragraph from Gageler J's judgment on which the Commonwealth placed particular reliance:⁴³⁹

The decision in Teori Tau was reached ex tempore and without calling for oral argument from any of the defendants.⁴⁶⁶ The decision was easily reached because it reflected a widespread understanding that had been held by the courts and by Parliament for seven decades since Federation. The result in Teori Tau was affirmed by six members of this Court in 1984⁴⁶⁷ and was relied upon without question by this entire Court in 1986.⁴⁶⁸ Numerous other judges in this Court have reaffirmed Teori Tau, implicitly or explicitly.⁴⁶⁹ The decision was described by one member of this Court as "manifestly correct".⁴⁷⁰ The weight of this authority provided powerful reasons for reliance upon its correctness by the Commonwealth Parliament. On this appeal, the Commonwealth submitted that if Teori Tau is overruled, or if s 51(xxxi) is not otherwise confined in its operation, "then for almost seven decades a vast but indeterminate number of grants of interests in land in the [Northern] Territory would have been invalid". The consequence of overturning Teori Tau in the Northern Territory alone is that, since 1911, "any grant or transfer of property that involved a compulsory acquisition is exposed to uncertainty if not invalidity" with "consequences of unforeseen and unforeseeable difficulty".⁴⁷¹

Each of the consequential (third and fourth) factors in John v Federal Commissioner of Taxation⁴⁷² militates powerfully against overruling the decision. The consequences of overruling Teori Tau weigh almost as heavily as any consequences could weigh upon whether a decision should be re-opened and its reasoning and result overruled. The reasoning and result in Teori Tau should only be overruled if there is absolutely no doubt that such a step is required by the more important dimension of justification. That conclusion must be reached because the reasoning in Teori Tau, which requires s 122 of the Constitution to be treated as effectively disjoined from the rest of the Constitution, is contrary to a century of judicial development by which s 122 has been interpreted so that its operation is integrated with the other provisions of the Constitution. In my view, the reasoning in Teori Tau is now so clearly wrong and so inconsistent with the mosaic of constitutional principle that it has no possible justification. The decision is so lacking in justification that the extremely powerful consequential considerations are overwhelmed.

The consequential considerations that weigh against overruling the result in Teori Tau cannot be mitigated by an alternative path of reasoning adopted by four members of this Court in a case in which three of those four would have overturned the result in Teori Tau.⁴⁷³ That alternative reasoning—which treats s 122 as constrained by the guarantee of acquisition on just terms in s 51(xxxi) where there is a concurrent source of power in s 51 but not otherwise—is ultimately based upon the same flaw: s 122 is disjoined from the rest of the Constitution other than where it would overlap with a head of power in s 51. Indeed, it is uncertain whether that alternative reasoning would have supported the result in Teori Tau in any event, since it is unclear whether the laws concerning a territory of the body politic of Australia (the Territory of Papua and New Guinea) challenged in that case fell within the subject matter of any head of power in s 51, other than being laws concerning an acquisition of property. For instance, the laws were not, without more, laws with respect to external affairs that fell within s 51(xxix).

The second issue raised by this appeal effectively seeks to avoid many of the extreme consequences of overruling the reasoning in Teori Tau by way of reasoning which preserves only the result in that case (at least so far as it relates to native title rights and interests).⁴⁷⁴ Specifically, this issue arises from the acceptance by Gummow J, in a separate judgment in 1997 that commanded majority support,⁴⁷⁵ of the same submission as that which is now made by the Commonwealth in this case. In the course of reasoning that Teori Tau should be overruled, Gummow J held that the susceptibility of native title rights and interests to defeasance meant that the extinguishment of native title was not an acquisition of property within s 51(xxxi) of the Constitution. The essential premise of this reasoning is that native title is recognised at common law subject to a condition subsequent that it is not the subject of an exercise of "radical title" to inconsistent effect. This issue focuses only upon native title rights and interests at common law. It is not concerned with the operation of native title under the Native Title Act 1993 (Cth).

The essential premise of this reasoning, which was developed at length by the Commonwealth, is ingenious and insightful but ultimately inapplicable to native title. The reasoning of Gummow J, developed by the Commonwealth, ingeniously and insightfully identifies some conditional rights or interests as falling outside s 51(xxxi) because they are not "acquired" within the meaning of s 51(xxxi). Such rights or interests are those that are created subject to a condition subsequent that they can be extinguished by the Commonwealth upon the occurrence of an event. An obvious example of such rights is statutory entitlements payable by the Commonwealth which are created on the express or implied condition that they can be revoked at will, usually by the Commonwealth Parliament. The same is true of common law rights to land or chattels that are subject to conditions subsequent. If a creditor took a mortgage over Commonwealth land, or a chattel mortgage over Commonwealth goods, in order to secure a debt, there would be no acquisition of property when the creditor's title was extinguished following repayment of the debt by the Commonwealth.

By contrast with rights and interests that are created subject to a condition subsequent, native title rights and interests, as recognised by the common law, are not subject to a condition subsequent that they are defeasible at will by the Commonwealth Parliament or by an exercise of statutory power to grant an estate in land inconsistent with the native title right or interest. Indeed, the Commonwealth conceded that its submission that native title rights and interests were subject to a condition subsequent applied only to native title rights and interests over land; it was accepted in oral argument that the reasoning could not apply to native title rights and interests over chattels and over some waters. Once the concept of radical title is properly understood, the reasoning also cannot apply to native title rights and interests over land.

The third issue on this appeal arises as a consequence of the conclusion that the power in s 122 of the Constitution is constrained by the guarantee of just terms in s 51(xxxi) and that this guarantee applies to legislation supported by s 122 which extinguishes native title rights and interests. The third issue focused upon a single "pastoral lease" granted in 1903 ("the 1903 Lease"), which was the most favourable lease to the interests of the Commonwealth on this appeal. The issue was whether a clause concerning "[e]xceptions and [r]eservations" in the 1903 Lease ("the exception and reservation clause") created exclusive rights for the Crown (the body politic of South Australia) to the subsurface minerals, thus extinguishing native title rights to and interests in those minerals before the surrender of the Northern Territory to, and its acceptance by, the Commonwealth in 1911.

The submissions of the Commonwealth concerning the third issue were based upon the opposite premise from the second issue. The submissions concerning the third issue were based upon the premise that any rights to the minerals located in the land had somehow been legally severed from the land and therefore had a separate existence at law from the land itself. That premise reflects a common view of mineral rights consistent with the approach taken in modern legislation. But, as an expression of the common law, it involves a basic and fundamental legal error, to which this Court referred in North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW),⁴⁷⁶ of treating things that are part of the substrata of land as though they are not land. The premise is an inaccurate picture of the common law and the statutory regime existing in South Australia in 1903. Indeed, if it were true that the minerals had been severed from the land, the Commonwealth's submissions in relation to the second issue, as they applied to minerals, would have been based on a false premise; namely that the native title rights and interests with which this case is concerned exist only in relation to land.

Properly understood in its historical context, the exception and reservation clause in the 1903 Lease did no more than ensure that any rights of the Crown (the body politic of South Australia at that time) concerning the subsurface of the land were preserved from any interference by the exercise of the surface rights granted in the 1903 Lease. At the time the 1903 Lease was granted, it would have been assumed to a high degree of certainty by all parties that the rights being preserved amounted to full beneficial ownership of all substrata of the land. That assumption accorded with the unanimous decision of the Supreme Court of New South Wales in Attorney-General v Brown.⁴⁷⁷ If the assumption were correct, native title rights and interests would have been extinguished. But the assumption was falsified by the decision of this Court in Mabo v Queensland [No 2] ("Mabo [No 2]").⁴⁷⁸ The effect of that decision is that the Crown had radical title (a sovereign power to create rights to the surface, supersurface, and subsurface of land) but, until the exercise of that sovereign power over unallocated Crown land, the Crown did not have any title (in other words, did not have a possessory right) to the land.

For the reasons below, the appeal must be dismissed.

The second erosion of the first conception also had its source in a decision before Teori Tau. In P J Magennis Pty Ltd v The Commonwealth,⁴⁹⁶ a majority of this Court held that the power of the Commonwealth Parliament to grant financial assistance to any State on terms and conditions was constrained by the requirement in s 51(xxxi) such that any term or condition concerning acquisition of property must involve just terms. That conclusion was upheld by this Court in ICM Agriculture Pty Ltd v The Commonwealth⁴⁹⁷ and is now settled.⁴⁹⁸ In ICM Agriculture Pty Ltd v The Commonwealth, Hayne, Kiefel and Bell JJ rejected for s 96 the "echo[]" of the like argument that s 122 is not constrained by the requirement of just terms in s 51(xxxi).⁴⁹⁹

The third erosion of the first conception was that which was recognised in Teori Tau⁵⁰⁰ itself when the Court acknowledged that the power in s 122 was subject to constitutional restrictions such as those contained in s 116, which precludes the Commonwealth Parliament from making "any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion" and prohibits any religious test being required "as a qualification for any office or public trust under the Commonwealth".

The fourth erosion of the first conception concerned the longstanding view expressed prior to Teori Tau that Ch III of the Constitution did not constrain the application of Commonwealth legislative power under s 122.⁵⁰¹ That view, relying upon the first conception, required "the Commonwealth" in Ch III to be interpreted as excluding the territories that are part of the Commonwealth.⁵⁰² In Sankey v Whitlam,⁵⁰³ Mason J referred to the view of Windeyer J⁵⁰⁴ that "[t]he phrase 'laws made by the Parliament' seems to be less extensive in denotation than 'laws of the Commonwealth'". As Mason J explained, Windeyer J was politely saying that the view that Ch III of the Constitution does not apply to the territories "is unacceptable". The strained interpretation of "laws made by the Parliament" was later rejected by a stream of authority that recognised that, at least in relation to territory courts "created pursuant to s 122",⁵⁰⁵ the restrictions derived from Ch III of the Constitution apply to the exercise of federal jurisdiction.⁵⁰⁶ There might still remain issues for the application of Ch III to territory courts,⁵⁰⁷ but the first conception has been rejected in its support for the absence of a relation between s 122 and Ch III.

The fifth erosion of the first conception concerned the reasoning in Teori Tau that s 122 was "the", in the sense of "the only", "source of power to make laws for the government of the territories of the Commonwealth".⁵⁰⁸ Under the first conception, therefore, there could be no tension between, on the one hand, laws for the government of a territory which permitted acquisition of property without just terms and, on the other hand, laws for the acquisition of property under s 51(xxxi) for some other purpose within s 51 and on just terms.⁵⁰⁹ But that lack of tension was achieved at the expense of the longstanding recognition that a law might have dual characters, being "properly described as with respect to more than one subject";⁵¹⁰ a law might be a law both for the government of any territory and for a subject matter or purpose falling within s 51.⁵¹¹ That source of constitutional incoherence led to the view, addressed below, that the reasoning in Teori Tau, and the first conception, could not apply at least where a law had such a dual character.⁵¹² To the extent of that erosion, the reasoning in Teori Tau, although not the result, was overruled.

As explained in the introduction to these reasons, there can be no doubt that enormous instability will follow from overruling Teori Tau. But those consequences do not include, as the Commonwealth claimed, the invalidity of a power for the legislature of a self-governing territory to legislate for the acquisition of property on just terms.⁵²⁰ The argument that a self-governing territory would be deprived of that power if Teori Tau were overruled was advanced by Brennan CJ in Newcrest, who posed the rhetorical question: "[i]f the power to enact a law for the compulsory acquisition of property were held to be abstracted from s 122, how could the [Commonwealth] Parliament confer that power on the territorial legislature?"⁵²¹

It can be accepted that, as Brennan CJ assumed, the power in s 51 for the Commonwealth Parliament to make laws with respect to various subject matters is (unlike s 122) not a power to enable a territory Parliament to make laws with respect to various subject matters.⁵²² For example, powers contained in s 51(iv), s 51(vi), or s 51(xxix) are not powers for the Commonwealth Parliament to make laws enabling a territory Parliament to make laws with respect to borrowing money on the public credit of the Commonwealth, the defence of the Commonwealth, or external affairs. And the power in s 51(xxxi) is not a power for the Commonwealth Parliament to make laws enabling a territory Parliament to make laws with respect to the acquisition of property on just terms. But this acceptance does not require the conclusion suggested by Brennan CJ, namely that it would follow from s 51(xxxi) qualifying s 122 that the Commonwealth Parliament lacks power to enable a territory Parliament to legislate with respect to the acquisition of property on just terms.

The question posed by Brennan CJ in Newcrest was answered in the same case by Gummow J,⁵²³ and subsequently by Gummow and Hayne JJ.⁵²⁴ Their answer was, in effect, that the power existed because the "abstraction"⁵²⁵ from the power of the Commonwealth Parliament in s 122 to make laws for the government of any territory is only to the extent that an acquisition of property is not on "just terms" consistently with s 51(xxxi). Although "the presence in s 51 of par (xxxi)" requires that the other powers in s 51 "be read as depending for the acquisition of property" upon s 51(xxxi),⁵²⁶ a power to enable the Parliament of a territory to legislate to acquire property does not lose its character as a law for the government of a territory and s 51(xxxi) does not withhold or "abstract" that power from s 122. That is, in addition to abstracting the power to legislate with respect to the acquisition of property from the other s 51 powers, s 51(xxxi) operates as a guarantee of just terms for all laws made under the Constitution, and s 122 is "limited" in that respect.⁵²⁷ Indeed, as Quick and Garran observed in 1901,⁵²⁸ prior to Australian Federation the Supreme Court of the United States had reached a similar conclusion in relation to the Fifth Amendment to the Constitution of the United States.⁵²⁹

In oral submissions, the Commonwealth powerfully argued against this Court unnecessarily deciding this submission by the NLC parties, by correctly identifying a picture of a unified body politic of the Commonwealth of Australia. That powerful and coherent picture identified by the Commonwealth should be accepted. If the submission of the NLC parties were to be accepted, it would introduce to s 51(xxix) a very similar heresy to the one that this Court today abolishes in relation to s 122. As this Court said in Fishwick v Cleland,⁵⁴⁵ in remarks that apply a fortiori to territories that form part of the Commonwealth of Australia:

The second respect in which "native title" is a loose description is that it is suggestive of a single legal concept. That suggestion evokes the muddled thinking⁵⁶⁷ and sometimes "awkward and incongruous"⁵⁶⁸ metaphor of a "bundle of rights"—a metaphor that, at best, is "little more than a slogan".⁵⁶⁹ The muddled thinking arises because native title rights and interests are a variety of different legal relations recognised by the common law. They are not a single concept of "native title" bundled together. To give just two examples: sometimes native title rights and interests are a privilege⁵⁷⁰ (which others do not generally enjoy) to use land, waters, or chattels for a variety of purposes; on other occasions, "native title" describes a collective right to possess land or waters to the exclusion of others or other groups. In short, "native title" at common law describes a variety of different legal relations (rights and other interests being powers, privileges, and immunities) that are recognised by the common law: "various assortments of artificially defined jural right".⁵⁷¹

As a matter of principle, the recognition of the norms underlying traditional laws and customs by the common law should involve as little change to the other rules of the common law as possible. This principle gives the greatest respect to both systems of law.⁵⁷⁸ This is, in effect, a principle of greatest accommodation. Nevertheless, there will be areas where the two systems of law might come into conflict. In those areas, there can be only one common law rule. If a norm underlying traditional laws and customs is inconsistent with an essential common law principle or postulate, then the generally accepted position is that the norm cannot be, or cannot continue to be, recognised.

Once it was found by six members of this Court in Mabo [No 2] that radical title could co-exist with native title rights and interests recognised by the common law, the issue of inconsistency could only arise where radical title was, or had been, exercised to create rights that were inconsistent with native title rights or interests. There were, broadly, two possible approaches suggested for the manner in which the common law should reconcile this potential conflict.

One approach began with the characterisation of the potentially inconsistent norm underlying traditional laws and customs. There were two variants of characterisation of the norm on this approach: (i) the exclusive possession of land which is the equivalent of a common law fee simple estate; or (ii) a unique personal right. In broad terms, each variant, (i) and (ii), of this approach was the reasoning in Mabo [No 2] of Toohey J,⁵⁷⁹ and of Deane and Gaudron JJ,⁵⁸⁰ respectively. On either variant, each characterisation led to the same approach by the common law process of recognition to resolving conflict with potentially inconsistent common law rights.

On the characterisation that recognised the norm as a native title right equivalent to a fee simple estate, the possession of land by Aboriginal and Torres Strait Islander peoples would be treated by the common law in the same way as the possession of land by settlers. Any exercise of radical title to grant an estate that is inconsistent with the recognised native title right could potentially be a wrongful interference with the prior title.

On the characterisation that treated the native title right as a unique personal right, the recognition of the native title right would also have the effect that an exercise of radical title to create an inconsistent right or interest could involve wrongful interference with the relevant personal right. Whether or not any wrong was actionable, the relativities of title recognised by the common law would mean that, in both cases, the native title rights and interests would not be subordinated to the exercise of sovereign power. In both cases, the native title rights would truly be a pre-existing burden on the radical title.

Another approach began by assessing whether the norms underlying those traditional laws and customs were: (i) proprietary or personal; and (ii) held by a community, a group, or a person. Where the norms included an assertion of exclusive possession of land as "a proprietary title capable of recognition by the common law", the reconciliation of the native title norms with the common law doctrine of tenure would require that "essential postulate[s]" of the rules of common law tenure not be disturbed. The common law could not change in those essential respects. One of the essential postulates of the common law system of tenure that seems to have been assumed by Brennan J is the unimpaired exercise of radical title, namely the unimpaired exercise of sovereign power to grant estates in land (at least by legislation). The recognition of a pre-existing native title right or interest involving exclusive possession of land would, therefore, be extinguishable by the exercise of radical title. In broad terms, Brennan J (with whom Mason CJ and McHugh J agreed) adopted this approach in Mabo [No 2].⁵⁸¹

Although Brennan J described native title as a "burden on ... radical title",⁵⁸² and although four members of this Court later described native title in the same way in The Commonwealth v Yarmirr,⁵⁸³ this language was inapt in light of the assumption by Brennan J that it was an essential postulate of the system of tenure that the exercise of sovereign power to grant estates in land would necessarily be unimpaired by native title. Perhaps for this reason, members of this Court (including three of the four who described it in this way in The Commonwealth v Yarmirr) have since cautioned against the metaphor of native title rights and interests as being a burden on radical title.⁵⁸⁴

The point that was not addressed by this Court in Fejo v Northern Territory was whether, if the traditional laws and customs, and the underlying norms, were to continue despite the extinguishment of the common law native title rights and interests, new native title rights or interests would be recognised by the common law if, at a later point in time, the inconsistent estate in the land ceased to exist. In many cases, the creation of an inconsistent right or interest in land, by an exercise of radical title, will interrupt traditional laws and customs sufficiently to break the continuity of the underlying norm in relation to that land. The continued connection with land, which is a necessary (but not sufficient)⁵⁹¹ precondition to the continued recognition of native title norms, requires proof of the ongoing observance of laws and customs, identified at a sufficient level of generality,⁵⁹² to evidence the continued existence of the underlying norms.

However, in a case where all estates in the land which had been previously granted by the Crown had been subsequently extinguished, so that the land was subject only to the potential exercise of radical title, and where the creation of the inconsistent right or interest had not interrupted the acknowledgement of traditional laws and observance of customs (so far as practicable),⁵⁹³ in relation to the land, to such an extent that the continuity of the underlying norm had been broken, it is hard to see why, at that point, the common law would not recognise new native title rights and interests based on any norms underpinning traditional laws and customs that existed at settlement and had continued.

The remarks of Brennan J must instead be understood as describing circumstances in which native title rights or interests, as "property", are defeasible. HLA Hart described the concept of a "defeasible" legal interest in property by analogy with a contract, established as valid, but subject to being defeated. Hart explained that the defeasible legal interest in property is one "which is subject to termination or 'defeat' in a number of different contingencies but remains intact if no such contingencies mature".⁶⁰³ One relevant circumstance is where the contingency is inherent in the content of the property right itself. Such a circumstance is commonly described as a "condition subsequent". A second circumstance is where an interest in property is defeated by some circumstance external to the interest itself.

The first alternative was relied upon by the Commonwealth. At least since Health Insurance Commission v Peverill,⁶⁰⁴ the jurisprudence of s 51(xxxi) has recognised, in effect, that interests created by statute can commonly be held subject to a condition subsequent which, when it occurs, will not amount to an acquisition of property if the effect of the condition subsequent is to remove the interest holder's entitlement to the interest. In Health Insurance Commission v Peverill, legislation that retrospectively reduced the amount of statutory medicare benefits that were payable by the Commonwealth was held not to be an acquisition of property. In passages to which reference was made by Gummow J in the passage quoted above from Newcrest,⁶⁰⁵ McHugh J said that although the statutory entitlement to a medicare benefit was property, "a law which alters or repeals that entitlement is not a law with respect to the acquisition of property within the meaning of s 51(xxxi)".⁶⁰⁶ His Honour later added that the entitlement was "created subject to the condition that it can be altered or even abolished by an exercise of power" without being an acquisition of property, until the entitlement has been transformed into property recognised by the general law.⁶⁰⁷

Although statutory entitlements will usually be created subject to a condition subsequent that the entitlement is defeasible by later legislation, it is neither necessary nor sufficient for the existence of such a condition subsequent that the rights the subject of the condition be statutory rights. It is not sufficient that the subject be a statutory right because not all statutory rights are intended by Parliament to be created subject to the condition subsequent of defeasance. In particular, where the statutory right is not merely exigible against the body politic of the Commonwealth, such as the statutory creation of intellectual property rights (copyrights, patents of inventions, designs, and trade marks) which are exigible against the world at large, the Parliament will rarely be taken to have intended that the statutory right contain a condition subsequent in the sense that it be "subject to the terms of the statutory regime as they stand from time to time".⁶⁰⁸

It is also unnecessary, for the existence of a condition subsequent of defeasance of an interest, that the subject of the condition be a statutory interest. An example is a grant of a right to use land which is "qualified by a power of recall contained in the terms of the grant".⁶⁰⁹ In The Commonwealth v WMC Resources Ltd,⁶¹⁰ Gummow J reasoned to the effect that the nature of non-statutory property (that is, rights created in respect of an exploration permit) was such that it contained a condition subsequent, the fulfilment of which had the effect that "there could be no acquisition within the meaning of s 51(xxxi)". Another example given by his Honour in that case is "the vested interest of a beneficiary under a settlement in which the settlor reserved a power of revocation".⁶¹¹ Pending revocation, the interest of the beneficiary is "property" within s 51(xxxi). But if the Commonwealth, as settlor, exercises the power of revocation, that will not be an acquisition of property. The same is true of the grant by the Commonwealth of a "fee simple to which a condition was attached by which the estate might be cut short";⁶¹² the species of such conditions subsequent were collected by Blackstone, including estates granted upon express or implied condition and, commonly, estates held in vadio, in gage, or in pledge: living pledges (vivum vadium) and dead pledges (mortgages).⁶¹³

The Commonwealth sought to explain native title rights and interests in the same way, including by reference to the decision of the United States Supreme Court, cited in a different context by Brennan J in Mabo [No 2],⁶¹⁴ of Tee-Hit-Ton Indians v United States.⁶¹⁵ That case, described by Professor McNeil as "one of the most regressive, and in some ways surprising, decisions [the Supreme Court of the United States] has ever made regarding Indian rights",⁶¹⁶ held that traditional Indian title was not a property right to land which was protected by the Fifth Amendment to the Constitution of the United States. The Supreme Court held that the "original Indian title" was "permission from the whites to occupy".⁶¹⁷ If the "inherent quality of the title itself"⁶¹⁸ were that the native title right or interest was merely occupation with permission then there could be no "acquisition" of property when the permission was revoked.

Although the Commonwealth's submission was more sophisticated and less abrasive than the reasoning of the Supreme Court of the United States in Tee-Hit-Ton Indians v United States, the effect of the submission was the same. In the terms in which the Commonwealth expressed the submission, the argument was that the legal rights and interests recognised by the common law as native title are subject to a condition subsequent that the right or interest will cease to exist upon the exercise of the sovereign power over land that is described as "radical title". This, the Commonwealth submitted, was what was meant by the description of native title as being "inherently fragile". That description of inherent fragility was also given by Gleeson CJ, Gaudron, Gummow and Hayne JJ in both The Commonwealth v Yarmirr⁶¹⁹ and Western Australia v Ward,⁶²⁰ and by Kirby J in Fejo v Northern Territory⁶²¹ and Wilson v Anderson.⁶²² Although there is some obscurity in the meaning of these references to the inherent fragility of native title, the Commonwealth's submission should not be accepted.

The Commonwealth's submission, if correct, would change the process of recognition of the norms underlying traditional laws and customs by the creation of common law native title rights and interests into a process of transformation of the underlying norms into common law native title rights and interests that do not reflect those norms because they contain a new condition subsequent.

It is one thing to say that there should be no recognition of particular native title norms because: (i) if the common law were to recognise native title rights and interests corresponding with the norms, then those rights and interests would be inconsistent with a title created by an exercise of "radical title" by an Australian body politic; or (ii) if native title rights and interests had been created through a common law process of recognition prior to inconsistency with a later-created title arising, then those rights and interests would be extinguished. But it is quite another thing to say that such potential for inconsistency requires the norms underlying traditional laws and customs to be transformed into, effectively, a permission to occupy granted by any Australian body politic so that the native title rights and interests would not be acquired when the condition subsequent arose, namely when the permission to occupy was revoked.

The concepts of recognition and extinguishment, in the above sense which excludes transformation, are what Brennan J must be taken to have meant in Mabo [No 2]⁶²³ when his Honour said that "[t]he rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title but the acquisition of sovereignty exposed native title [rights and privileges] to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title". This is also all that should be understood by expressions like the "inherent fragility" of native title or, more accurately, the "vulnerability to defeasance" of native title⁶²⁴ or the liability of native title "to extinction by [the] exercise of ... sovereign power".⁶²⁵ Hence, to adapt what was said by four members of this Court in the context of the Native Title Act, where the norms underlying traditional laws and customs involve assertions of exclusive control over land, "it is not to be supposed that ... native title rights and interests [are treated] less favourably [than freehold title]".⁶²⁶

Since recognition precludes the transformation of the norms underlying traditional laws and customs into native title rights and interests in relation to land which include a condition subsequent, there is no fundamental difference between the process of recognition of native title norms in relation to land when compared with the same recognition of native title norms in relation to chattels, such as those arising from "the taking or keeping of fauna",⁶²⁷ or native title norms, where they can be recognised,⁶²⁸ in relation to offshore waters.⁶²⁹ Indeed, as explained below, the premise of the Commonwealth's submissions in relation to the third issue was that the assumed native title rights and interests in this case were rights to minerals and not to land. Yet, the Commonwealth, in oral submissions, properly disclaimed any submission that any native title norms in relation to chattels or offshore waters would be recognised by the common law only if the underlying norms could be transformed into rights and interests with a condition subsequent of defeasance by the exercise of power sourced in Commonwealth legislation.

A curious consequence would apparently arise if common law recognition could transform native title norms into native title rights and interests in relation to land which include a condition subsequent of defeasance. That consequence would be that Commonwealth legislation under s 122, which was otherwise valid, could effect wholesale extinguishment of native title rights and interests⁶³⁰ without the just terms requirement in s 51(xxxi).⁶³¹ Yet, in part of the passage from Gummow J in Newcrest quoted above,⁶³² which was relied upon by the Commonwealth, his Honour considered that such wholesale extinguishment may be an exceptional case where extinguishment is not possible without just terms.

If native title rights and interests included a condition subsequent of defeasance by sovereign power, then such an exception could not be justified on the basis that the condition subsequent (to which native title rights and interests were said to be subject) is defeasance only by the exercise of a power to acquire or create title, but that wholesale extinguishment would not truly amount to the exercise of such a power. The exercise of Commonwealth legislative power to create title for itself on a large scale is, in principle, no different from the exercise of the Commonwealth's executive power on a smaller scale (whether supported by the prerogative when it existed or by statutory executive power).⁶³³ Nor is there any justification for such an exception by attempting to draw a distinction between indirect extinguishment by the exercise of statutory executive power to create a new (and inconsistent) title and direct extinguishment by legislation with widespread effects. Widespread legislation of the type contemplated in the exception might, without any contrivance, be concerned with creating widespread new titles.

The principle of non-derogation from grant, and the interpretive principle that Parliament is generally taken not to have intended to derogate from a grant, are therefore independent of the nature of the right granted, including whether the right is one of native title. Since native title rights and interests are not granted by the Crown, the principle does not apply to native title rights and interests and the principle says nothing about the nature of native title rights and interests other than that they are not the subject of a grant. Hence, it is unnecessary to consider analogies with other interpretive principles relevant to native title rights and interests. Nor is it necessary to consider the interpretive principle that, given the "seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land", a "clear and plain intention" must be discerned, not merely for the exercise of a power to extinguish native title rights and interests,⁶⁴¹ but also for the creation of a power the exercise of which could have that effect.

If minerals were truly severed from the land at common law before mining, and if title were really held to the minerals at common law, then the title would be held as a non-possessory title to a chattel. But, as the Full Court of the Supreme Court of Victoria held in Chirnside v The Registrar of Titles,⁶⁶¹ when a certificate of title registered "mines and minerals" that had been excepted from a conveyance, the subject of the registration remained an "estate[,] right or interest [in land]" which was a hereditament. A so-called title "to the minerals" is a title to something having no separate legal existence at common law.

There is, therefore, confusion of thought in expressions such as "an estate in fee simple ... in the minerals"⁶⁶² or "an estate in fee simple in the growing timber",⁶⁶³ the latter of which has been cleverly satirised by Swadling as "treehold".⁶⁶⁴ Confusion is also invited by the widespread and extremely common references, repeated on this appeal, to common law notions of minerals, which remain in their natural state as part of the land, being "severed from the land" by a common law conveyance, or the "title of the minerals" at common law being "severed ... from the title of the fee simple estate" by a conveyance, or references to the grant of "title to minerals" and "passing property in minerals" by a conveyance.

As a matter of common law, expressions such as "title to minerals" in their natural state in the land, or "title to trees" naturally affixed to the land, can only refer to property rights in three ways. The first possible meaning of such expressions is an exclusive property right in the land to take the minerals or trees, which when physically severed will become a new chattel. This property right is an "incorporeal hereditament"⁶⁶⁵ called a profit à prendre, "a right exercised over another's real property and accompanied with participation in the profits of the soil thereof".⁶⁶⁶

The second possible meaning of such expressions, particularly in instruments that suggest a conveyance of all the subsurface, is a conveyance of rights to land "by horizontal subdivision" as well as "by vertical subdivision":⁶⁶⁷ "the surface belonging to one person, and a stratum below [or above⁶⁶⁸] the surface to another, this frequently occurring in the case of a conveyance of the minerals separate from the surface".⁶⁶⁹

The third possible meaning is so unlikely that it can be put to one side. This possible meaning is that the expressions "title to minerals" and "title to trees" signify the conveyance of a freehold title to the surface or subsurface of land by reference to the vertical and horizontal location of particular minerals or trees. In that instance, the freehold estate in that part of the surface or subsurface location of the land would subsist even after the removal and severance of the minerals or trees from the land. The minerals or trees, on this possibility, would serve as no more than identifiers of the location of particular land conveyed based on the location of the minerals or trees at the time of conveyance. It is, of course, highly unlikely that parties would wish to convey only the vertical and horizontal space occupied by minerals or trees at the time of conveyance. Indeed, the prospect that parties might intend to convey the space wherever the mineral or tree happened to be located at any point in time could present considerable difficulties. As Swadling has observed in relation to an attempt to convey the space occupied by a tree at any given time:⁶⁷⁰

Despite the strict legal meanings of "reservation" and "exception", for centuries a "reservation" was sometimes used erroneously in conveyances to refer to an exception.⁶⁸² For instance, in Doe on the demise of Douglas v Lock,⁶⁸³ a "reservation" of "wood and underground produce" was "not a reservation, but an exception". In The Earl of Cardigan v Armitage⁶⁸⁴ the Court of King's Bench considered the language of "except and always reserved" in relation to coal which was "part of the thing granted, part of the land, and in esse [that is, existing] at the time". In delivering the judgment of the Court, Bayley J held that the words "excepted and always reserved" created only an exception.⁶⁸⁵ Contrary to the submission of counsel for the plaintiff in that case, the express power to sink pits and get the coals was not a purported re-grant of a profit à prendre; rather, it was a mere liberty to ensure latitude in the mining for coal as opposed to a property right. The liberty was given because the exception would otherwise only have permitted the use of the surface of the land for mining purposes that were strictly necessary.⁶⁸⁶

In Australia, in Attorney-General v Brown⁶⁸⁷ the word "reserve" was likewise held to be an exception. As Windeyer J rightly said in this Court in Wade v New South Wales Rutile Mining Co Pty Ltd,⁶⁸⁸ the words "reservation" and "reserving" were "often used to mean a keeping back of a physical part of a thing otherwise granted: and so they are to be understood and have long been understood in the Australian law of real property".

Cases in Australia prior to 1903 had held that, if the Crown were required to prove title for an information of intrusion, then the relevant body politic described as the Crown would have possession over the relevant land due to records that established that the Crown acquired beneficial ownership at the time of sovereignty. An example is the 1847 decision of the Supreme Court of New South Wales in Attorney-General v Brown.⁷⁰³ In that case, the Supreme Court of New South Wales held that the Crown, being the body politic of New South Wales, could bring an information of intrusion against the defendant for entering coal mines and veins of coal under land that the Crown had granted to a third party by an exercise of prerogative power. The grant of the land by the Crown had been subject to "reserv[ing] ... all mines of gold and silver and of coals, with full and free liberty and power to search for, dig, and take away the same".⁷⁰⁴ The New South Wales Supreme Court accepted the submission that the "reservation" of coal was an exception of "all strata of coal" from the grant of the land and thus the Court held that the land in those strata was "always the property of the Crown".⁷⁰⁵

In Attorney-General v Brown, the defendant had argued, in effect, that the Crown could only obtain title to the exclusion of its subjects by matter of record and that, not only was there no record, but the Crown did not have the right to possession or to "any beneficial ownership" of "the waste lands of the Colony".⁷⁰⁶ Therefore, despite the holding back by the Crown of the strata of land that contained coal from the grant, it was argued that the Crown was "not in possession; not entitled to maintain trespass, or bring an information of intrusion, which assumes that [the Crown] had possession".⁷⁰⁷ That submission was rejected by the Supreme Court. Stephen CJ, giving the reasons of the Court, held that "at the time of making a grant of land to a subject, the Crown must be presumed to have had a title to that land" and that, in any event, the Crown was the beneficial owner of the land, saying that "the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown".⁷⁰⁸

The reasoning in Attorney-General v Brown that the Crown, being the body politic of New South Wales, had absolute beneficial ownership of "waste lands" was rejected in Mabo [No 2] by six members of this Court. This Court held that the Crown had only "radical title", a sovereign power to create title.⁷⁰⁹ Further, the theory that the Crown grant of an estate or interest in land would cause the Crown's radical title to enlarge to a full beneficial title in reversion was rejected by the majority in Wik Peoples v Queensland.⁷¹⁰ A reversion required a "residue of an estate left in the grantor".⁷¹¹ But if the grant of land was not made from any estate held by the Crown, but rather from the Crown's radical title, there could be no residue. The Crown's "radical title", its sovereign power to alienate land, was unchanged. Hence, the Crown in Attorney-General v Brown had no possessory title that could have supported an information of intrusion.

At the centre of the Commonwealth's submission to the contrary on this issue was an observation by Gageler J in New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act.⁷¹² After expressing the view that "it is difficult to see how the result in Attorney-General v Brown could have been different" even if the view accepted in Mabo [No 2], that the Crown obtained only radical title in the land at sovereignty, had been applied, his Honour said:⁷¹³

The only modern suggestion that the Crown always had title sufficient to support an action for intrusion was in Mabo [No 2] itself,⁷²¹ where, after a footnote reference to a page of a separate judgment of Dixon J which correctly observed that a squatter can acquire a possessory title to an estate in fee simple in land by trespass,⁷²² Dawson J said that "any possessory title would not withstand the assertion by the Crown of its radical title". In other words, in a system of relativity of title, even if native title rights and interests were equated with a freehold estate, the Crown's radical title was the strongest right to possession. That was a dissenting view.

The dissenting view of Dawson J was rejected by six other members of the Court. Now, almost 33 years later, and after passage of the Native Title Act, it is too late to revisit that issue. All parties and interveners in this appeal, and in the Full Court of the Federal Court, were correct not to make any submission that radical title was an "estate" in land in any real sense, particularly in the sense of creating a fiction of possession sufficient for an information of intrusion and prevailing over other rights to possession. If such a submission had been made, I would not have accepted it. Apart from its direct inconsistency with the decision of all members of the majority in Mabo [No 2], for hundreds of years it has been the case that the Crown's title to land is "as dependent on possession as a subject's".⁷²³ Relativity of title in a real and not a fictional sense has been "the constant barrier between the [C]rown and the subject".⁷²⁴

The concern of the 1899 Act, as well as the Northern Territory Crown Lands Act 1890 (SA) ("the 1890 Act"), which the 1899 Act developed, incorporated, and to the greatest extent possible was to be "read as one with",⁷³⁵ was therefore to ensure an exception was created from any grant of an estate by a lease under the 1899 Act. The exception would be for the substrata of relevant land, with a liberty in favour of those acting in right of, or with the authority of, the Crown (the body politic of South Australia) to use the surface of the land to enter the excepted strata. No new property rights were created by the adoption in any clause of a lease of the terms of item (l) of Sch A to the 1899 Act.

This interpretation is entirely consistent with the reasoning and conclusion of the majority of this Court in Wik Peoples v Queensland,⁷³⁶ that the rights conferred by particular "pastoral leases" under Queensland legislation⁷³⁷ were rights to use the surface of the land for pastoral purposes and were not property rights of exclusive possession. Indeed, on this appeal the Commonwealth conceded that the legislation considered by this Court in Wik Peoples v Queensland was directly comparable to the 1899 Act, and that the 1903 Lease was of the same nature as the leases considered in Wik Peoples v Queensland, in that it did not confer rights to exclusive possession of the surface.⁷³⁸ That properly made concession reinforces the interpretation of the prohibition in s 25 of the 1899 Act, upon mining operations, as ensuring the preservation of the liberty of the lessee "to utilise the surface of the land, or any part thereof", and the "exception or reservation" required by s 24 and item (l) of Sch A as ensuring the preservation of the rights believed to be held by the Crown in relation to the subsurface, rather than the creation of new rights.

Although describing the exception and reservation clause as concerning "title to the minerals" rather than the substrata of the land, the Commonwealth therefore conceded that the clause was a true exception, withholding rights from the conferral of rights upon the lessee in the 1903 Lease. But the Commonwealth submitted that the Crown, being the body politic of South Australia, must have intended that the exception and reservation clause serve also to create a title to that subsurface land in the Crown. In this submission, which was not relied upon by the Northern Territory although the asserted result was supported, the Commonwealth argued that the exception and reservation clause was necessary to create a record to support an information of intrusion by the Crown, without which there would have been no way to evict a trespasser over that part of the land.

The Commonwealth correctly pointed to the doubt in 1903 about whether the Crown could bring an action for ejectment due to the legal fiction that the Crown could never be factually dispossessed.⁷⁴⁴ And the Commonwealth effectively asserted that unless the exception and reservation clause also involved the positive exercise of sovereign power to create a record of beneficial ownership, an information of intrusion would not have been available and therefore there would have been no remedy against a trespasser to the substrata of land with which the exception and reservation clause was concerned.

That submission is misconceived for three reasons. First, even if the exception and reservation clause were intended to stand in place of an inquest of office to establish a record of Crown possession for an information of intrusion, the clause (like the inquest) would not create that right of possession. It would merely be the formal record sufficient to satisfy the requirements of the information of intrusion.

Secondly, the premise of the submission (that without a right of possession created by the exception and reservation clause there would be no remedy against a trespasser) is wrong. The premise misunderstands the procedure for an information of intrusion. As explained above, if a defendant pleaded specially to the information of intrusion, then the natural and proper response of the Crown was to demur to that pleading. The defendant would be required to prove a legal title that did not merely arise from the fact of the defendant's possession. The Crown would not need to prove title. Further, it is open to serious doubt that the only remedy against a trespasser on the subsurface of land subject to a pastoral lease was by an information of intrusion brought by the Crown. Although there were doubts about whether the Crown could bring an action for ejectment, there may have been statutory remedies that could have been sought by the Crown on the basis that the subsurface remained "lands vested in the Crown".⁷⁴⁵

Thirdly, and in any event, although Mabo [No 2] established that the Crown was not in possession and hence could not have established an information of intrusion, both the positive state of the law, and the ubiquitous understanding, in 1903 was that it was established by record that the Crown was the beneficial owner of any "waste land[]" in Australia that was excepted from a grant.⁷⁴⁶ The purpose of a conveyance, and the manifested intentions of the parties to the conveyance, cannot be retrofitted based upon new understandings of the law nearly a century later.

Nor should it be accepted that inconsistency would only ever arise upon the actual and subsequent issue of a miner's right, gold mining lease or mineral lease pursuant to the NT Mining Act. It is the exercise of sovereign power, as manifested by the terms of that Act, which is necessarily inconsistent with any native title rights to minerals from the moment of enactment. That exercise is exhaustive in nature and necessarily asserted immediate public control of all mineral resources on Crown lands. In effect, there had been a full nationalisation of those resources of the Northern Territory on Crown lands for the benefit of the people of the territory. And that nationalisation admitted of no exceptions;⁸⁰⁰ duality of title was impossible.⁸⁰¹ In that respect, the NT Mining Act is distinguishable from laws regulating flora, fauna and aquatic resources; those resources are, by nature, replenishable and thus non-exclusive native title rights to them may simply endure.⁸⁰² As described above, the mineral resources of the Northern Territory are finite. Moreover, the foregoing is consistent with the agreement of the parties that, subject to the Constitution, s 107 of the 1939 Mining Ordinance, and not any mining tenement thereafter issued, immediately extinguished native title to minerals on Crown lands.

Bourke v State Bank of New South Wales (1990) 170 CLR 276 at 285. ↩

Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160. ↩

Theophanous v The Commonwealth (2006) 225 CLR 101 at 124 [55]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 561 [61]. ↩

(1961) 105 CLR 361 at 371-372. ↩

Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371. ↩

Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 445. ↩

Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 445 [107]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 615 [271]. ↩

Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 266, 271. ↩

Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 331 [7]. ↩

See Northern Territory Acceptance Act 1910 (Cth). ↩

See Seat of Government Acceptance Act 1909 (Cth). ↩

See Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth); Cocos Islands Act 1955 (UK); Cocos (Keeling) Islands Act 1955 (Cth). ↩

See Australian Antarctic Territory Acceptance Act 1933 (Cth); Australian Antarctic Territory Act 1954 (Cth). ↩

See Papua Act 1905 (Cth); New Guinea Act 1920 (Cth). See also Fishwick v Cleland (1960) 106 CLR 186 at 197-198. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 604-605, 611-612. ↩

Berwick Ltd v Gray (1976) 133 CLR 603 at 607-608. ↩

Berwick Ltd v Gray (1976) 133 CLR 603 at 607. ↩

See Palmer v Western Australia (2021) 272 CLR 505 at 546 [120], citing Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 101-102. ↩

Northern Territory v GPAO (1999) 196 CLR 553 at 576-577 [40], quoting Kruger v The Commonwealth (1997) 190 CLR 1 at 49-50. ↩

Berwick Ltd v Gray (1976) 133 CLR 603 at 607. ↩

Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-267, 269-274. ↩

(1969) 119 CLR 564. ↩

(1969) 119 CLR 564 at 570. ↩

(1969) 119 CLR 564 at 570-571. ↩

(1997) 190 CLR 513 at 544-545. ↩

(1997) 190 CLR 513 at 551-552. ↩

(1997) 190 CLR 513 at 575-576. ↩

(1997) 190 CLR 513 at 565. ↩

(1997) 190 CLR 513 at 613-614. ↩

(1997) 190 CLR 513 at 661. ↩

(1997) 190 CLR 513 at 560-561. ↩

(2009) 237 CLR 309 at 359 [86]. ↩

(2009) 237 CLR 309 at 388 [189]. ↩

(2009) 237 CLR 309 at 419 [287]. ↩

See (2009) 237 CLR 309 at 367 [116], 391 [203], 426 [312], 472. ↩

See Brodie v Singleton Shire Council (2001) 206 CLR 512 at 563 [112], citing Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314. ↩

(1997) 190 CLR 513 at 568-569. ↩

(1997) 190 CLR 513 at 560. ↩

(1997) 190 CLR 513 at 614. ↩

(1997) 190 CLR 513 at 661-662. ↩

Bennett v The Commonwealth (2007) 231 CLR 91 at 108 [35]-[36], referring to Berwick Ltd v Gray (1976) 133 CLR 603 at 605, 608. ↩

New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case") (1975) 135 CLR 337 at 360, 470-471; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 600. ↩

Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 528, 602, 634, 696, 714; Horta v The Commonwealth (1994) 181 CLR 183 at 193-194; XYZ v The Commonwealth (2006) 227 CLR 532 at 539 [10], 546 [30], 548 [38]. ↩

The Commonwealth v Tasmania (1983) 158 CLR 1 at 151. ↩

Re F; Ex parte F (1986) 161 CLR 376 at 387. ↩

The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 50 [131]. ↩

Spratt v Hermes (1965) 114 CLR 226 at 278; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 533-534, 549. ↩

(2009) 240 CLR 140 at 170 [46], 206 [174]. ↩

(1958) 99 CLR 132 at 141. ↩

(1958) 99 CLR 132 at 141-142. ↩

Lamshed v Lake (1958) 99 CLR 132 at 143. ↩

See Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 410 [13]-[14]. ↩

Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 187. ↩

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349. ↩

Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16], quoting R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226. ↩

R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 314, quoting Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368. ↩

Section 6 of the Northern Territory Self-Government Act and s 22(1) of the Australian Capital Territory Self-Government Act. ↩

Section 50(1) of the Northern Territory Self-Government Act and s 23(1)(a) of the Australian Capital Territory Self-Government Act. ↩

(1992) 175 CLR 1 at 110-111. ↩

(1997) 190 CLR 513 at 523. The consequence would be that these past acts would be validated by s 14(1) of the Native Title Act and compensation may thereby be payable for the otherwise invalid past acts under s 18. ↩

(1997) 190 CLR 513 at 560. ↩

(1997) 190 CLR 513 at 651. ↩

(1997) 190 CLR 513 at 613 (emphasis in original), citing Mabo v Queensland [No 2] (1992) 175 CLR 1 at 69, 89, 110, 195-196, Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 422, 439, 459 and Wik Peoples v Queensland (1996) 187 CLR 1 at 132-133 together with R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653 and Health Insurance Commission v Peverill (1994) 179 CLR 226 at 235-237, 256, 264-265. ↩

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349. ↩

Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290. ↩

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 311-312. ↩

JT International SA v The Commonwealth (2012) 250 CLR 1 at 33-34 [42], 53 [118], 68 [169], 99 [278], 130-131 [365]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 560 [58]. ↩

(1992) 175 CLR 1 at 68. ↩

(1997) 190 CLR 513 at 533. ↩

See Smith v ANL Ltd (2000) 204 CLR 493 at 504-505 [22], explaining Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 and The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 17 [17]. ↩

(1997) 190 CLR 513 at 613. ↩

(1988) 166 CLR 186. ↩

(1995) 183 CLR 373. ↩

See Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 453; Fejo v Northern Territory (1998) 195 CLR 96 at 151 [105]; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [47]; Western Australia v Ward (2002) 213 CLR 1 at 93-94 [91]. ↩

Cunningham v The Commonwealth (2016) 259 CLR 536 at 563 [66], quoting Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 165. ↩

JT International SA v The Commonwealth (2012) 250 CLR 1 at 49 [104]. See also The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 73 [196]. ↩

Helmore, The Law of Real Property in New South Wales, 2nd ed (1966) at 66-67, quoted in Wilson v Anderson (2002) 213 CLR 401 at 443 [89]. See also Western Australia v Ward (2002) 213 CLR 1 at 200 [432]. ↩

Campbell, "Conditional Land Grants by the Crown" (1966) 5 Sydney Law Review 267 at 267-269, 274-275; Campbell, "Conditional Land Grants by the Crown" (2006) 25 University of Tasmania Law Review 44 at 45-47, 55-56. ↩

(1889) 14 App Cas 286 at 288, 290. ↩

cf s 238(2) of the Native Title Act. ↩

(1995) 183 CLR 373. ↩

(1996) 187 CLR 1. ↩

(1998) 195 CLR 96. ↩

(1999) 201 CLR 351. ↩

(2001) 208 CLR 1. ↩

(2002) 213 CLR 1. ↩

(2002) 214 CLR 422. ↩

(2013) 250 CLR 209. ↩

(2014) 253 CLR 507. ↩

(2015) 256 CLR 239. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 59. ↩

The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [48]. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58. ↩

Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] (emphasis in original). ↩

Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] (emphasis in original). ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 237-238. ↩

The Commonwealth v Yarmirr (2001) 208 CLR 1 at 49 [42], citing Mabo v Queensland [No 2] (1992) 175 CLR 1 at 61. ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 84. ↩

Queensland v Congoo (2015) 256 CLR 239 at 263 [31]. ↩

Akiba v The Commonwealth (2013) 250 CLR 209 at 219 [10]. ↩

Akiba v The Commonwealth (2013) 250 CLR 209 at 219 [10]. See also 226 [24]. ↩

Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 439. ↩

Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 453-454 [77]. See also Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46]. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 63. ↩

(1992) 175 CLR 1 at 43. ↩

(1992) 175 CLR 1 at 58. ↩

(1992) 175 CLR 1 at 63 (emphasis added). ↩

(1888) 14 App Cas 46. ↩

[1921] 2 AC 399. ↩

See The Commonwealth v Yarmirr (2001) 208 CLR 1 at 49-51 [44]-[48]. ↩

The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [49]-[50]. ↩

The Commonwealth v Yarmirr (2001) 208 CLR 1 at 67-68 [96]-[100]. ↩

Queensland v Congoo (2015) 256 CLR 239 at 276 [72]. ↩

(1992) 175 CLR 1 at 63. ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 84. ↩

Constitution Act 1867 (Qld), ss 30 and 40. ↩

(1992) 175 CLR 1 at 63, citing Cudgen Rutile (No 2) Ltd v Chalk [1975] AC 520 at 533-534. ↩

South Australia Act 1834 (4 & 5 Will IV c 95), s 6. See Selway, The Constitution of South Australia (1997) at 5 [1.2], 202 [16.1.5]. ↩

See ss 6(2) and 7 of the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory Act 1863 (SA), s 6 of the Northern Territory Land Act 1872 (SA), s 6 of the Northern Territory Crown Lands Consolidation Act 1882 (SA) and s 6 of the Northern Territory Crown Lands Act 1890 (SA). ↩

Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86], quoting Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304. ↩

Western Australia v Ward (2002) 213 CLR 1 at 89 [78], 91 [82]; Queensland v Congoo (2015) 256 CLR 239 at 272 [57]. ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 185; Queensland v Congoo (2015) 256 CLR 239 at 300 [157]. ↩

Yanner v Eaton (1999) 201 CLR 351 at 395 [107]. ↩

Western Australia v Brown (2014) 253 CLR 507 at 523 [38], quoting Western Australia v Ward (2002) 213 CLR 1 at 91 [82]. See also Wik Peoples v Queensland (1996) 187 CLR 1 at 185; Queensland v Congoo (2015) 256 CLR 239 at 273 [60]-[61], 281-282 [88]-[91], 299-300 [156]. ↩

(1992) 175 CLR 1 at 30. ↩

(1988) 166 CLR 186 at 217. ↩

(1992) 175 CLR 1 at 36. ↩

(1992) 175 CLR 1 at 58. ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 84. See also Fejo v Northern Territory (1998) 195 CLR 96 at 127 [44]; Wilson v Anderson (2002) 213 CLR 401 at 416-417 [4]. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 63, 70-71. ↩

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 64. ↩

See s 24 and item (l) of Sch A to the Northern Territory Land Act. ↩

(1969) 121 CLR 177 at 194. ↩

(1847) 1 Legge 312 at 322. ↩

(1996) 187 CLR 1 at 200-201. ↩

Yunupingu v The Commonwealth (2023) 298 FCR 160 at 191 [109]. ↩

Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820) at 332. ↩

The Commonwealth v Anderson (1960) 105 CLR 303 at 322. ↩

Attorney-General v Brown (1847) 1 Legge 312 at 313. ↩

See generally McNeil, Common Law Aboriginal Title (1989) at 98-103. ↩

See generally Fox, "Relativity of Title at Law and in Equity" (2006) 65 Cambridge Law Journal 330. ↩

See Asher v Whitlock (1865) LR 1 QB 1 at 5; Perry v Clissold [1907] AC 73 at 79; Mount Bischoff Tin Mining Co v Mount Bischoff Extended Tin Mining Co (1913) 15 CLR 549 at 562; NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 at 279; Allen v Roughley (1955) 94 CLR 98 at 110, 130, 137; Ocean Estates Ltd v Pinder [1969] 2 AC 19 at 24-25. See generally Dixon, Bignell and Hopkins, Megarry & Wade: The Law of Real Property, 10th ed (2024) at 265-272 [7-002]-[7-013]. ↩

See The Winkfield [1902] P 42 at 55-56; Gatward v Alley (1940) 40 SR (NSW) 174 at 180; Gollan v Nugent (1988) 166 CLR 18 at 30-33, 48-49; Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at 45-46 [91]. ↩

(1847) 1 Legge 312 at 323. ↩

(1847) 1 Legge 312 at 316. ↩

(2016) 260 CLR 232 at 276-277 [110]-[112]. ↩

(2016) 260 CLR 232 at 277 [112]. ↩

(1992) 175 CLR 1 at 49-50, 60. ↩

(2001) 208 CLR 1 at 49-50 [44], 51 [47]. ↩

(1888) 14 App Cas 46 at 55. ↩

[1921] 2 AC 399 at 403. ↩

(2016) 260 CLR 232 at 262 [60]. ↩

The claim area is slightly different for each application. The compensation claim area is approximately 236 square kilometres. ↩

As will be explained, only the separate questions in relation to the compensation application that are set out in the Annexure are the subject of this appeal. ↩

Section 122 of the Constitution provides that "[t]he Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth ...". ↩

Northern Territory (Self-Government) Act (as enacted), ss 5 and 6. ↩

In these reasons, as in the Full Court of the Federal Court below, "Compensable Acts" describes the acts for which the claimants may seek compensation, depending on the findings of the Federal Court. It was also a shorthand phrase used in submissions before this Court. The use of "Compensable Acts" in these reasons does not imply that any view has been formed or expressed about the claimants' entitlement to the compensation claimed in the proceeding. That is not an issue in this appeal. ↩

(1971) 17 FLR 141. ↩

Native Title Act, s 228. ↩

On and from 1 January 1994, the Native Title Act has provided a statutory scheme for the recognition and protection of native title: Native Title Act, see, eg, ss 3(a), 10, 11. ↩

At the time these acts occurred, the Claim Area lay within the Arnhem Land Reserve that had been set apart in April 1931 "for the use and benefit of the [A]boriginal native inhabitants" as an Aboriginal Reserve under the Crown Lands Ordinance 1927 (NT) and continued to be an Aboriginal Reserve under later laws. ↩

On 17 November 1958, the Commonwealth granted a special mineral lease to Commonwealth Aluminum Corporation Pty Ltd. On 11 March 1963, the Commonwealth granted the second, third and fourth special mineral leases to Gove Bauxite Corporation Ltd. On 30 May 1969, the Commonwealth granted a special mineral lease to Swiss Aluminium Australia Pty Ltd ("Swiss Aluminium") and Gove Alumina Ltd. This lease is still held by Swiss Aluminium. ↩

These being the "pastoral lease reservations" defined in question 2(a) of the separate questions reserved for the consideration of the Full Federal Court: see Annexure. ↩

There are complexities with the determination application including claims by other First Nations groups, and individuals, that the Claim Area, or parts of it, was land in which they held native title. Such claims are made by 21 respondents who identify as Yolngu and additional respondents who identify as Rirratjingu. ↩

Supported by the Attorneys-General for Queensland, Western Australia and the Australian Capital Territory. ↩

Supported by the NLC Respondents and the Rirratjingu Respondents. The Northern Territory did not make submissions on this issue. ↩

Supported by the Northern Territory, the Attorney-General for the Australian Capital Territory, the NLC Respondents and the Rirratjingu Respondents. The Attorneys‑General for Queensland and Western Australia did not make submissions on this issue. ↩

Supported by the Northern Territory and the Attorneys-General for Queensland and the Australian Capital Territory. ↩

See [230] below. ↩

Supported by the NLC Respondents and the Rirratjingu Respondents. The Attorney‑General for Western Australia did not make submissions on this issue. ↩

(1971) 17 FLR 141. ↩

In the Gove Land Rights Case (1971) 17 FLR 141 at 146, the first plaintiff, Milirrpum, was "a member of the Rirratjingu clan" and another plaintiff, Munggurrawuy, was a member of the Gumatj clan. Other Yolngu clans were represented by other plaintiffs. ↩

Gove Land Rights Case (1971) 17 FLR 141 at 244-245, 262, 267, 273-274, 293. ↩

Yunupingu v The Commonwealth (2023) 298 FCR 160 at 166 [3]. See also Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), Report No 126 (2015) at 66 [2.33]. ↩

(1992) 175 CLR 1. ↩

(1992) 175 CLR 1 at 15; see also 57-58. ↩

Bodney v Bennell (2008) 167 FCR 84 at 126 [163]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 57. See also Yanner v Eaton (1999) 201 CLR 351 at 383 [73]; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 143-144 [326]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 58. See also Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452; Yanner (1999) 201 CLR 351 at 382 [72]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 59 (emphasis added). See also Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46]; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 439 [31]; Queensland v Congoo (2015) 256 CLR 239 at 273‑274 [63]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 60. ↩

Mabo (No 2) (1992) 175 CLR 1 at 61. See also Wik Peoples v Queensland (1996) 187 CLR 1 at 169; Yarmirr (2001) 208 CLR 1 at 49 [42]; Western Australia v Ward (2002) 213 CLR 1 at 67 [21]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 57, 69 (proposition 1-3). See also Native Title Act Case (1995) 183 CLR 373 at 422; Yarmirr (2001) 208 CLR 1 at 48 [41], 50 [46]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 57, 69 (proposition 1-3). ↩

Mabo (No 2) (1992) 175 CLR 1 at 60. ↩

Mabo (No 2) (1992) 175 CLR 1 at 60, 69 (proposition 1-4). ↩

Mabo (No 2) (1992) 175 CLR 1 at 63, 69 (proposition 3-4). See also Native Title Act Case (1995) 183 CLR 373 at 452; Wik (1996) 187 CLR 1 at 123; Fejo (1998) 195 CLR 96 at 128 [48]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 63, 69 (proposition 3). ↩

Mabo (No 2) (1992) 175 CLR 1 at 63. See also Native Title Act Case (1995) 183 CLR 373 at 422. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. See also Ward (2002) 213 CLR 1 at 89 [78]; Akiba v The Commonwealth (2013) 250 CLR 209 at 240 [62]; Congoo (2015) 256 CLR 239 at 264 [32], 300-301 [158]-[159]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64-65. ↩

Mabo (No 2) (1992) 175 CLR 1 at 69 (proposition 4). See also Native Title Act Case (1995) 183 CLR 373 at 439; Wik (1996) 187 CLR 1 at 124, 133, 176, 185; Fejo (1998) 195 CLR 96 at 126-127 [43]-[44]; Yanner (1999) 201 CLR 351 at 371‑372 [35]; Ward (2002) 213 CLR 1 at 89 [78]; Akiba (2013) 250 CLR 209 at 240 [62]. ↩

Wik (1996) 187 CLR 1 at 131, 167, 204. ↩

Mabo (No 2) (1992) 175 CLR 1 at 69-70 (proposition 5). See also Western Australia v Brown ("WA v Brown") (2014) 253 CLR 507 at 522 [37]. ↩

Northern Territory v Griffiths (2019) 269 CLR 1 at 101 [205], 105 [219]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 68. ↩

Mabo (No 2) (1992) 175 CLR 1 at 63; Native Title Act Case (1995) 183 CLR 373 at 439. ↩

Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 349; Attorney‑General (Cth) v Schmidt (1961) 105 CLR 361 at 370-371; Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 424; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 145; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 254; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 197 [134]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 615 [270]. ↩

Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth (1943) 67 CLR 314 at 318, 325; Schmidt (1961) 105 CLR 361 at 371; Tooth (1979) 142 CLR 397 at 445; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 526; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 177, 179, 188, 193; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 283; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160, 166; Theophanous v The Commonwealth (2006) 225 CLR 101 at 124 [55]; Wurridjal v The Commonwealth (2009) 237 CLR 309 at 387 [186]; ICM (2009) 240 CLR 140 at 197 [135]; JT International SA v The Commonwealth (2012) 250 CLR 1 at 67 [167]; Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 445 [107]; Cunningham (2016) 259 CLR 536 at 561 [61], 615 [271]. ↩

See [189] below. ↩

Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 202; Mutual Pools (1994) 179 CLR 155 at 168, 180, 184, 223; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 568, 595. ↩

Tooth (1979) 142 CLR 397 at 403. See also Wurridjal (2009) 237 CLR 309 at 385 [178]; ICM (2009) 240 CLR 140 at 169 [43]; JT International (2012) 250 CLR 1 at 95 [263]. ↩

Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 291; Mutual Pools (1994) 179 CLR 155 at 169; Smith v ANL Ltd (2000) 204 CLR 493 at 501 [9]; JT International (2012) 250 CLR 1 at 128 [355]; Cunningham (2016) 259 CLR 536 at 560 [57], 575 [116], 615 [270]. ↩

Clunies-Ross (1984) 155 CLR 193 at 202; Australian Tape Manufacturers (1993) 176 CLR 480 at 509; Mutual Pools (1994) 179 CLR 155 at 184; Newcrest (1997) 190 CLR 513 at 595; ICM (2009) 240 CLR 140 at 169 [43], 213 [185]; JT International (2012) 250 CLR 1 at 33 [41]. See also Bank Nationalisation Case (1948) 76 CLR 1 at 349; Schmidt (1961) 105 CLR 361 at 371; Mutual Pools (1994) 179 CLR 155 at 172. ↩

Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 276; Mutual Pools (1994) 179 CLR 155 at 172; Ex parte Lawler (1994) 179 CLR 270 at 285; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303, 312, 319-320; Newcrest (1997) 190 CLR 513 at 602; ANL (2000) 204 CLR 493 at 533 [119]; Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 663 [21]; Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230 [43]; ICM (2009) 240 CLR 140 at 213 [186]. ↩

Mutual Pools (1994) 179 CLR 155 at 184-185; Ex parte Lawler (1994) 179 CLR 270 at 285; Georgiadis (1994) 179 CLR 297 at 303; ANL (2000) 204 CLR 493 at 533 [119]; Telstra (2008) 234 CLR 210 at 230 [43]; ICM (2009) 240 CLR 140 at 179-180 [82], 213 [186]. ↩

Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 572, 618; Cole v Whitfield (1988) 165 CLR 360 at 401; Street v Queensland Bar Association (1989) 168 CLR 461 at 522-523; Ha v New South Wales (1997) 189 CLR 465 at 498. ↩

Tooth (1979) 142 CLR 397 at 433; Mutual Pools (1994) 179 CLR 155 at 184, 219, 223; Georgiadis (1994) 179 CLR 297 at 320; ICM (2009) 240 CLR 140 at 169‑170 [44]; JT International (2012) 250 CLR 1 at 67 [169]. ↩

Bank Nationalisation Case (1948) 76 CLR 1 at 349; Tooth (1979) 142 CLR 397 at 407; Tasmanian Dam Case (1983) 158 CLR 1 at 282-283; Australian Tape Manufacturers (1993) 176 CLR 480 at 510; Mutual Pools (1994) 179 CLR 155 at 173; Georgiadis (1994) 179 CLR 297 at 320; JT International (2012) 250 CLR 1 at 74 [193], 100 [280], 129 [361]. ↩

cf Newcrest (1997) 190 CLR 513 at 613. ↩

Chaffey (2007) 231 CLR 651 at 664 [22]; Cunningham (2016) 259 CLR 536 at 562‑563 [65], 616 [274]. ↩

See [128] above. ↩

Dalziel (1944) 68 CLR 261 at 285. ↩

Yanner (1999) 201 CLR 351 at 365-367 [17]-[20]. See also Telstra (2008) 234 CLR 210 at 230-231 [44]; Wurridjal (2009) 237 CLR 309 at 360 [89]; JT International (2012) 250 CLR 1 at 31-32 [37], 107 [299]-[300]. ↩

Dalziel (1944) 68 CLR 261 at 285. ↩

Dalziel (1944) 68 CLR 261 at 290. See also Bank Nationalisation Case (1948) 76 CLR 1 at 299; Australian Tape Manufacturers (1993) 176 CLR 480 at 509; Mutual Pools (1994) 179 CLR 155 at 184; Georgiadis (1994) 179 CLR 297 at 303; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 559; Chaffey (2007) 231 CLR 651 at 663 [21]; Telstra (2008) 234 CLR 210 at 232 [49]; Wurridjal (2009) 237 CLR 309 at 359 [87]; ICM (2009) 240 CLR 140 at 196 [131], 214-215 [189]; JT International (2012) 250 CLR 1 at 95 [263]; Cunningham (2016) 259 CLR 536 at 615 [272]. ↩

Bank Nationalisation Case (1948) 76 CLR 1 at 349. See also Australian Tape Manufacturers (1993) 176 CLR 480 at 528; Mutual Pools (1994) 179 CLR 155 at 184-185; Georgiadis (1994) 179 CLR 297 at 303; Wurridjal (2009) 237 CLR 309 at 359‑360 [88]; JT International (2012) 250 CLR 1 at 95 [263]; Cunningham (2016) 259 CLR 536 at 561-562 [62], 606 [233]. ↩

Yarmirr (2001) 208 CLR 1 at 38 [12]. ↩

Griffiths (2019) 269 CLR 1 at 38 [23]. ↩

(1996) 187 CLR 1 at 169. ↩

Mabo (No 2) (1992) 175 CLR 1 at 66-67. ↩

Mabo (No 2) (1992) 175 CLR 1 at 89. ↩

Yarmirr (2001) 208 CLR 1 at 51 [48]. See also Fejo (1998) 195 CLR 96 at 128 [46]; Yorta Yorta (2002) 214 CLR 422 at 453 [75]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 57 (emphasis added). ↩

Mabo (No 2) (1992) 175 CLR 1 at 58-61. See also Native Title Act Case (1995) 183 CLR 373 at 452; Fejo (1998) 195 CLR 96 at 128 [46]; Yanner (1999) 201 CLR 351 at 382-383 [72]; Yorta Yorta (2002) 214 CLR 422 at 439 [31]; Congoo (2015) 256 CLR 239 at 273-274 [63]; Love v The Commonwealth (2020) 270 CLR 152 at 179 [34], 189 [70], 205 [115], 228 [205], 252 [268], 273 [339], 313 [450]. ↩

Fejo (1998) 195 CLR 96 at 128 [46]. See also Yanner (1999) 201 CLR 351 at 382‑383 [72]; Yorta Yorta (2002) 214 CLR 422 at 441 [38]; WA v Brown (2014) 253 CLR 507 at 522 [36]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 178. ↩

Yanner (1999) 201 CLR 351 at 373 [38]. See also Akiba (2013) 250 CLR 209 at 219 [10]. ↩

Congoo (2015) 256 CLR 239 at 263 [31]. ↩

Yanner (1999) 201 CLR 351 at 383 [72]. ↩

Wik (1996) 187 CLR 1 at 169. ↩

Wik (1996) 187 CLR 1 at 177. ↩

Yanner (1999) 201 CLR 351 at 383 [72]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 178-179; see also 57, 62, 109-110, 119. See also Yanner (1999) 201 CLR 351. ↩

Mabo (No 2) (1992) 175 CLR 1 at 57. See also Wik (1996) 187 CLR 1 at 169; Yanner (1999) 201 CLR 351 at 383 [73]; Ward (2002) 213 CLR 1 at 66 [17]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 178. ↩

Griffiths (2019) 269 CLR 1 at 95 [187]. ↩

Yanner (1999) 201 CLR 351 at 372-373 [37]-[38]; Ward (2002) 213 CLR 1 at 64 [14]; Congoo (2015) 256 CLR 239 at 274 [64]; Griffiths (2019) 269 CLR 1 at 38 [23], 99 [199]; Love (2020) 270 CLR 152 at 189 [70], 205 [115], 225 [194], 260‑261 [290]. ↩

Ward (2002) 213 CLR 1 at 64 [14], citing Gove Land Rights Case (1971) 17 FLR 141 at 167. ↩

(1996) 187 CLR 1 at 169. ↩

(1998) 195 CLR 96 at 128 [46]. ↩

(1999) 201 CLR 351 at 373 [38]. ↩

(2002) 213 CLR 1 at 64-65 [14]. ↩

(2015) 256 CLR 239 at 274 [64]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 58. ↩

(1997) 190 CLR 513 at 613. ↩

Mabo (No 2) (1992) 175 CLR 1 at 29 (emphasis added). ↩

Mabo (No 2) (1992) 175 CLR 1 at 43. ↩

Mabo (No 2) (1992) 175 CLR 1 at 45. ↩

Yarmirr (2001) 208 CLR 1 at 68 [97]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 48, 50-51. ↩

Yarmirr (2001) 208 CLR 1 at 68 [97]. ↩

See [104]-[106] above. ↩

See [102] above. ↩

Yarmirr (2001) 208 CLR 1 at 51 [47], see also 115 [258]; Ward (2002) 213 CLR 1 at 93-94 [91], see also 241 [561], 263 [616], 287 [665]. ↩

Native Title Act Case (1995) 183 CLR 373 at 418. cf Yarmirr (2001) 208 CLR 1 at 88 [169]. ↩

Native Title Act Case (1995) 183 CLR 373 at 453. See also Fejo (1998) 195 CLR 96 at 118 [15]. ↩

See [121] above. ↩

See [133]-[144] above. ↩

Mabo (No 2) (1992) 175 CLR 1 at 63. See also Fejo (1998) 195 CLR 96 at 128 [48]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 63. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

See, eg, Yarmirr (2001) 208 CLR 1 at 47-48 [40], 68 [100]; Congoo (2015) 256 CLR 239 at 263-266 [31]-[37], 299-301 [155]-[159]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

See [122]-[123] above. ↩

See [123] above. ↩

Mabo (No 2) (1992) 175 CLR 1 at 64. ↩

See [128] above. ↩

See Pt I and [143] above. ↩

The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 73 [195]-[196], 75 [203]; Chaffey (2007) 231 CLR 651 at 663‑664 [21]-[25]; Telstra (2008) 234 CLR 210 at 219-220 [8], 233‑234 [52]; Cunningham (2016) 259 CLR 536 at 553 [32], 554-555 [40], 555-556 [43], 556 [46], 562 [63], 563 [66], 564-565 [69]. ↩

See [138]-[143] above. ↩

See [136] above. ↩

Chaffey (2007) 231 CLR 651 at 664 [24]-[25]. See also WMC Resources (1998) 194 CLR 1 at 70 [182]; Telstra (2008) 234 CLR 210 at 232 [49]; Wurridjal (2009) 237 CLR 309 at 382-383 [172]; Cunningham (2016) 259 CLR 536 at 556 [43], 563 [66], 604-605 [229], 616 [273]. ↩

See, eg, in 1994 alone: Georgiadis (1994) 179 CLR 297; Mutual Pools (1994) 179 CLR 155; Nintendo (1994) 181 CLR 134. ↩

(1994) 179 CLR 226. ↩

The right of a medical practitioner to receive a payment for Medicare benefits assigned to them by a patient. ↩

(1994) 179 CLR 226 at 243-244, 246. ↩

(1998) 194 CLR 1. ↩

(1998) 194 CLR 1 at 29 [53]; see also 99 [253]. See also Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 165. ↩

Chaffey (2007) 231 CLR 651 at 664 [24]-[25]. ↩

Cunningham (2016) 259 CLR 536 at 555-556 [43]-[46]. ↩

See [128] above. ↩

cf Peverill (1994) 179 CLR 226 at 243-244. ↩

cf WMC Resources (1998) 194 CLR 1 at 29 [53]. ↩

Newcrest (1997) 190 CLR 513 at 613 (emphasis in original). ↩

Mabo (No 2) (1992) 175 CLR 1 at 69, 89, 110, 195-196; Native Title Act Case (1995) 183 CLR 373 at 422, 439, 459; Wik (1996) 187 CLR 1 at 132-133. See also R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653; Peverill (1994) 179 CLR 226 at 235-237, 256, 264-265. ↩

(1988) 166 CLR 186. ↩

(1995) 183 CLR 373. ↩

Bank Nationalisation Case (1948) 76 CLR 1 at 349. ↩

Mabo (No 2) (1992) 175 CLR 1 at 111. ↩

See [132] above. ↩

See [134]-[143] above. ↩

See [128] above. ↩

See [173] below. ↩

Fejo (1998) 195 CLR 96 at 127 [44] fn 157. ↩

See [128] above. ↩

Dalziel (1944) 68 CLR 261 at 285. ↩

Mutual Pools (1994) 179 CLR 155 at 185. See also ICM (2009) 240 CLR 140 at 179-180 [82]; JT International (2012) 250 CLR 1 at 63-64 [152]-[153], 69 [173], 77-78 [198]. ↩

Georgiadis (1994) 179 CLR 297 at 304-305. See also Newcrest (1997) 190 CLR 513 at 634. ↩

WMC Resources (1998) 194 CLR 1 at 18 [20]; see also 37 [84]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 111. See also Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 at 244-245 [36]. ↩

As will be explained, in Teori Tau (1969) 119 CLR 564, the High Court unanimously held that laws made in reliance on the territories power in s 122 are not subject to s 51(xxxi). ↩

Mabo (No 2) (1992) 175 CLR 1 at 112 (emphasis added). ↩

Teori Tau (1969) 119 CLR 564 at 570‑571. See also Newcrest (1997) 190 CLR 513 at 534, 539‑540. ↩

Newcrest (1997) 190 CLR 513 at 568-569; see also 560, 614, 661. ↩

Newcrest (1997) 190 CLR 513 at 614, 652; see also 568; Wurridjal (2009) 237 CLR 309 at 359 [86], 388 [189], 418 [283]. ↩

Wurridjal (2009) 237 CLR 309 at 359 [86] (French CJ), 388 [189] (Gummow and Hayne JJ), 418 [283] (Kirby J). ↩

O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267; Vanderstock v Victoria (2023) 98 ALJR 208 at 316 [430]; 414 ALR 161 at 286. See also Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 188; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 613-614 [107]-[108]. ↩

See [114] above. ↩

Newcrest (1997) 190 CLR 513 at 613. ↩

Newcrest (1997) 190 CLR 513 at 576. ↩

See [191]-[193] below. ↩

Berwick Ltd v Gray (1976) 133 CLR 603 at 607; New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 157 [335]-[337]; Vunilagi v The Queen (2023) 97 ALJR 627 at 650 [100]; 411 ALR 224 at 247. ↩

Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 545; [1957] AC 288 at 320; Spratt v Hermes (1965) 114 CLR 226 at 241-242; Berwick (1976) 133 CLR 603 at 607; Capital Duplicators Pty Ltd v Australian Capital Territory ("Capital Duplicators (No 1)") (1992) 177 CLR 248 at 265; Kruger v The Commonwealth (1997) 190 CLR 1 at 43, 54, 55, 78, 79; Wurridjal (2009) 237 CLR 309 at 347 [55], 348 [57], 349 [61], 369 [123], 385 [180]. ↩

Teori Tau (1969) 119 CLR 564 at 569. ↩

Teori Tau (1969) 119 CLR 564 at 565-566. ↩

Teori Tau (1969) 119 CLR 564 at 566. ↩

Teori Tau (1969) 119 CLR 564 at 568-569. ↩

Teori Tau (1969) 119 CLR 564 at 570. ↩

Newcrest (1997) 190 CLR 513 at 614 (Gummow J), 652 (Kirby J); Wurridjal (2009) 237 CLR 309 at 359 [86] (French CJ), 388 [189] (Gummow and Hayne JJ), 418 [283] (Kirby J). ↩

See [127] above. See also Schmidt (1961) 105 CLR 361 at 371; Mutual Pools (1994) 179 CLR 155 at 169; Nintendo (1994) 181 CLR 134 at 160; Newcrest (1997) 190 CLR 513 at 596, 652‑653; Wurridjal (2009) 237 CLR 309 at 354-355 [75], 386‑387 [185]-[186]. ↩

See [128] above. ↩

Capital Duplicators (No 1) (1992) 177 CLR 248 at 272. See also Newcrest (1997) 190 CLR 513 at 604. ↩

Newcrest (1997) 190 CLR 513 at 603. ↩

Newcrest (1997) 190 CLR 513 at 597-598. ↩

Lamshed v Lake (1958) 99 CLR 132 at 145. See also Newcrest (1997) 190 CLR 513 at 600, 652, 653. ↩

(1965) 114 CLR 226. ↩

Spratt (1965) 114 CLR 226 at 242. ↩

Spratt (1965) 114 CLR 226 at 242. ↩

Spratt (1965) 114 CLR 226 at 246. ↩

See, eg, Newcrest (1997) 190 CLR 513 at 600; Wurridjal (2009) 237 CLR 309 at 357 [80]. ↩

Newcrest (1997) 190 CLR 513 at 600-601. See also Capital Duplicators (No 1) (1992) 177 CLR 248 at 274. ↩

Newcrest (1997) 190 CLR 513 at 602. ↩

Newcrest (1997) 190 CLR 513 at 602. ↩

Newcrest (1997) 190 CLR 513 at 602. ↩

Newcrest (1997) 190 CLR 513 at 597, 600, 652. ↩

Newcrest (1997) 190 CLR 513 at 597; Wurridjal (2009) 237 CLR 309 at 353-354 [74]. See also Berwick (1976) 133 CLR 603 at 608. ↩

Newcrest (1997) 190 CLR 513 at 594; Wurridjal (2009) 237 CLR 309 at 357 [79]. ↩

Newcrest (1997) 190 CLR 513 at 606, 653. ↩

Mutual Pools (1994) 179 CLR 155 at 187; Ex parte Lawler (1994) 179 CLR 270 at 285; Theophanous (2006) 225 CLR 101 at 124 [56]; ICM (2009) 240 CLR 140 at 214 [188]; Emmerson (2014) 253 CLR 393 at 436 [77]. See also JT International (2012) 250 CLR 1 at 122 [335]. ↩

Mutual Pools (1994) 179 CLR 155 at 179, 180-181. See also Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 at 180 [98]; Wurridjal (2009) 237 CLR 309 at 439 [361]; ICM (2009) 240 CLR 140 at 229 [222]; Emmerson (2014) 253 CLR 393 at 448 [118]. ↩

Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 263; Federal Commissioner of Taxation v Barnes (1975) 133 CLR 483 at 494-495; MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 638-639; Australian Tape Manufacturers (1993) 176 CLR 480 at 508-509. See also Mutual Pools (1994) 179 CLR 155 at 187, 220. ↩

R v Smithers; Ex parte McMillan (1982) 152 CLR 477 at 487; Ex parte Lawler (1994) 179 CLR 270 at 285; Emmerson (2014) 253 CLR 393 at 436 [77]. See also Mutual Pools (1994) 179 CLR 155 at 178; Theophanous (2006) 225 CLR 101 at 124-125 [56], 126 [60]; JT International (2012) 250 CLR 1 at 122 [335]. ↩

Theophanous (2006) 225 CLR 101 at 126 [60] (emphasis added). See also Emmerson (2014) 253 CLR 393 at 438 [84]. ↩

Newcrest (1997) 190 CLR 513 at 654. ↩

Newcrest (1997) 190 CLR 513 at 607, 653. ↩

Newcrest (1997) 190 CLR 513 at 605, 654-655. ↩

Newcrest (1997) 190 CLR 513 at 607. ↩

Newcrest (1997) 190 CLR 513 at 605, 654. ↩

Newcrest (1997) 190 CLR 513 at 656-657; Wurridjal (2009) 237 CLR 309 at 348 [57]-[58]. See also Vunilagi (2023) 97 ALJR 627 at 650 [100]; 411 ALR 224 at 247. ↩

These examples are not exhaustive. Section 122 is also subject to s 92: Capital Duplicators (No 1) (1992) 177 CLR 248 at 275. See also Palmer v Western Australia (2021) 272 CLR 505 at 545 [117]. ↩

Capital Duplicators (No 1) (1992) 177 CLR 248 at 279. See also Vanderstock (2023) 98 ALJR 208 at 231 [61], 309 [400] fn 1002, 320 [441] fn 1102; 414 ALR 161 at 180, 277, 291. ↩

Capital Duplicators (No 1) (1992) 177 CLR 248 at 279. ↩

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 101, 114‑116, 143. See also Emmerson (2014) 253 CLR 393 at 424 [40]. ↩

North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [28]-[29]; Emmerson (2014) 253 CLR 393 at 425 [42]. ↩

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363 [81]; Bradley (2004) 218 CLR 146 at 163 [28]‑[29]; South Australia v Totani (2010) 242 CLR 1 at 49 [72]. ↩

Unions NSW v New South Wales (2013) 252 CLR 530 at 550 [25]. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567. ↩

See [186] above. ↩

Newcrest (1997) 190 CLR 513 at 594; Wurridjal (2009) 237 CLR 309 at 357 [79]. ↩

See [182] above. ↩

See [186]-[188] above. ↩

ICM (2009) 240 CLR 140 at 170 [46], 206 [174], cf 199 [141]. ↩

Newcrest (1997) 190 CLR 513 at 610-612; cf 650-652. ↩

(1958) 99 CLR 132. See Newcrest (1997) 190 CLR 513 at 609, 613; Wurridjal (2009) 237 CLR 309 at 346 [53], 358 [85], 383 [175], 385 [178], 386 [183], 387 [188]. ↩

(1965) 114 CLR 226. See Newcrest (1997) 190 CLR 513 at 599, 601, 603, 606, 609‑610, 611-612, 613; Wurridjal (2009) 237 CLR 309 at 346 [51]. ↩

Newcrest (1997) 190 CLR 513 at 611‑612. ↩

Teori Tau (1969) 119 CLR 564 at 570 (emphasis added). See also Newcrest (1997) 190 CLR 513 at 611. ↩

See, eg, Attorney-General (Vict) v The Commonwealth (1962) 107 CLR 529 at 601; Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 192-194; Re F; Ex parte F (1986) 161 CLR 376 at 388; Mutual Pools (1994) 179 CLR 155 at 188; Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16]; Work Choices Case (2006) 229 CLR 1 at 103-104 [142]. ↩

Newcrest (1997) 190 CLR 513 at 611; Wurridjal (2009) 237 CLR 309 at 386 [184]. ↩

Spratt (1965) 114 CLR 226 at 248, 259-260, 264-265, 278. See also Newcrest (1997) 190 CLR 513 at 609. ↩

Teori Tau (1969) 119 CLR 564 at 570. See also Newcrest (1997) 190 CLR 513 at 611; Wurridjal (2009) 237 CLR 309 at 347 [54]. ↩

Capital Duplicators (No 1) (1992) 177 CLR 248 at 269. ↩

Newcrest (1997) 190 CLR 513 at 612. See also [183] and [190]-[192] above. ↩

Teori Tau (1969) 119 CLR 564 at 570. See also Newcrest (1997) 190 CLR 513 at 612; Wurridjal (2009) 237 CLR 309 at 347 [54]. ↩

Lamshed (1958) 99 CLR 132 at 141. ↩

Lamshed (1958) 99 CLR 132 at 141. ↩

Lamshed (1958) 99 CLR 132 at 143. See also Newcrest (1997) 190 CLR 513 at 609; Wurridjal (2009) 237 CLR 309 at 386 [183]. ↩

Lamshed (1958) 99 CLR 132 at 148, 153-154. ↩

Newcrest (1997) 190 CLR 513 at 568. ↩

Newcrest (1997) 190 CLR 513 at 560-561 (Toohey J), 568 (Gaudron J), 614 (Gummow J), 640 (Kirby J). ↩

Newcrest (1997) 190 CLR 513 at 568 (emphasis added). ↩

Newcrest (1997) 190 CLR 513 at 567. ↩

Newcrest (1997) 190 CLR 513 at 614. ↩

Wik (1996) 187 CLR 1 at 190; see also 108, 153, 226, 242. ↩

1899 Land Act, title. ↩

1899 Land Act, s 1. ↩

1899 Land Act, Pt II (The Granting of Pastoral Leases) (ss 7-22), Pt III (Terms and Conditions of Leases) (ss 23-31), read with s 3 definitions of "pastoral lease" and "pastoral lands". ↩

1899 Land Act, ss 8 and 10. ↩

1899 Land Act, s 7. ↩

1899 Land Act, s 24. ↩

1899 Land Act, Sch A (a)-(k). ↩

1899 Land Act, Sch A (l)-(s) (emphasis added), read with s 24. ↩

Wik (1996) 187 CLR 1 at 184 (emphasis added); see also 244. See also Akiba (2013) 250 CLR 209 at 229-230 [31]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 26, citing Attorney-General v Brown (1847) 1 Legge 312 at 316. ↩

(1992) 175 CLR 1 at 57, 69 (proposition 1-3). See also Native Title Act Case (1995) 183 CLR 373 at 422; Wik (1996) 187 CLR 1 at 207; Yarmirr (2001) 208 CLR 1 at 48 [41], 50 [46]; Love (2020) 270 CLR 152 at 177 [27], 273 [338], 274 [340]. ↩

(1992) 175 CLR 1 at 57 (emphasis added). ↩

There were some limited exceptions, reservations and provisions that also concerned persons other than the Crown: see Sch A (l), (m) and (q). ↩

cf Ward (2002) 213 CLR 1 at 124 [172]. ↩

Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 185. ↩

See [226] below. ↩

St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [No 2] [1973] 1 WLR 1572 at 1586‑1587; [1973] 3 All ER 902 at 917. ↩

Wade (1969) 121 CLR 177 at 194. See also Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd (1925) 36 CLR 340 at 348, 376-377, 377-378; Ward v Western Australia ("Ward FC") (1998) 159 ALR 483 at 556; Ward (2002) 213 CLR 1 at 128‑129 [186], 310 [716]. ↩

Wade (1969) 121 CLR 177 at 194; Wik (1996) 187 CLR 1 at 200-201. ↩

See [208] above. ↩

Wade (1969) 121 CLR 177 at 194. See also Ward (2002) 213 CLR 1 at 310 [716]; Ward FC (1998) 159 ALR 483 at 556. ↩

Wik (1996) 187 CLR 1 at 200. ↩

Wik (1996) 187 CLR 1 at 200-201. ↩

See, eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 [47]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 [33]; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 389-390 [25]-[26], 395 [41]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]; Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 at 582 [52]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 26, citing Brown (1847) 1 Legge 312 at 316. ↩

Mabo (No 2) (1992) 175 CLR 1 at 48. ↩

(2016) 260 CLR 232 at 277 [112]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 287 [144]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 272 [96]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 260-261 [53]-[56], 262 [61]‑[62], 271-272 [94]-[95], 273 [100], 287 [142]. ↩

18 & 19 Vict c 54. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 273 [100]. See also 259-261 [50]-[54]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 273-277 [101]-[110]. ↩

(1847) 1 Legge 312. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 276 [110]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 277 [111]. ↩

NSW Aboriginal Land Council (2016) 260 CLR 232 at 277 [112] (emphasis added). ↩

(1992) 175 CLR 1 at 70. ↩

Mabo (No 2) (1992) 175 CLR 1 at 70-71. ↩

See [209]-[210] above. ↩

(1996) 63 FCR 450 ("Wik FC"). ↩

Wik FC (1996) 63 FCR 450 at 494. ↩

Wik FC (1996) 63 FCR 450 at 493-494 (emphasis added). ↩

Wik FC (1996) 63 FCR 450 at 496. ↩

See [108] above. ↩

See [107] above. ↩

See [109] above. ↩

See [204] above. ↩

Ward FC (1998) 159 ALR 483 at 556. See also Ward (2002) 213 CLR 1 at 122-123 [169], 128 [185]. ↩

See [205]-[210] above. ↩

See [210] above. ↩

Wade (1969) 121 CLR 177 at 194; Wik (1996) 187 CLR 1 at 200-201. ↩

Mabo (No 2) (1992) 175 CLR 1 at 68. ↩

Mabo (No 2) (1992) 175 CLR 1 at 68. ↩

Mabo (No 2) (1992) 175 CLR 1 at 50 (emphasis added). ↩

Yarmirr (2001) 208 CLR 1 at 51 [48]. See also Yorta Yorta (2002) 214 CLR 422 at 441 [38]; Congoo (2015) 256 CLR 239 at 276 [71]. ↩

Mabo (No 2) (1992) 175 CLR 1 at 211, cf 163; see also 50, 68. See also Wik (1996) 187 CLR 1 at 165; Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (2014) at 147. ↩

Mabo (No 2) (1992) 175 CLR 1 at 50. ↩

See Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth). ↩

See Northern Territory (Self-Government) Act 1978 (Cth), ss 5, 6. ↩

(1969) 119 CLR 564. ↩

Teori Tau (1969) 119 CLR 564 at 570. ↩

Teori Tau (1969) 119 CLR 564 at 570. ↩

Teori Tau (1969) 119 CLR 564 at 568. ↩

Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201. ↩

Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 6. ↩

New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case") (1975) 135 CLR 337 at 390; Coe v The Commonwealth (1979) 53 ALJR 403 at 409, 412; 24 ALR 118 at 130, 138; Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 458; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 246; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 269; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 169, 177, 193; Gambotto v Resolute Samantha Ltd (1995) 69 ALJR 752 at 754; 131 ALR 263 at 266-267. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 552. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 545. ↩

(1989) 166 CLR 417 at 438-439. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 565, 613-614, 661; cf 560-561. ↩

See Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 71 [55]. See also at 74 [65], 86-87 [100], 101-106 [153]-[167]. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 613. See also at 560, 561, 661. ↩

(1940) 63 CLR 52 especially at 70, 72. ↩

(1847) 1 Legge 312 at 316-317. ↩

(1992) 175 CLR 1. ↩

R v Bernasconi (1915) 19 CLR 629 at 635. ↩

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 536. ↩

Spratt v Hermes (1965) 114 CLR 226 at 242. ↩

(1969) 119 CLR 564 at 570. ↩

Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 410 [13]-[14]. ↩

(1997) 190 CLR 513 at 604-607. ↩

See Re F; Ex parte F (1986) 161 CLR 376 at 387, quoting Russell v Russell (1976) 134 CLR 495 at 539. ↩

(1926) 37 CLR 432 at 441-443, 448. See also R v Bernasconi (1915) 19 CLR 629 at 635, 637; Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529 at 545; [1957] AC 288 at 320; Spratt v Hermes (1965) 114 CLR 226 at 241-242, 250-251; Newcrest (1997) 190 CLR 513 at 537-538. ↩

(1969) 119 CLR 564 at 570. ↩

Lamshed v Lake (1958) 99 CLR 132 at 144. ↩

(1958) 99 CLR 132 at 144. ↩

Lamshed v Lake (1958) 99 CLR 132 at 145. ↩

Official Record of the Debates of the Australasian Federal Convention (Melbourne), 28 January 1898 at 257. See Newcrest (1997) 190 CLR 513 at 603. ↩

Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 595 [174], quoting Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 172. See also Lindell, Cowen and Zines's Federal Jurisdiction in Australia, 4th ed (2016) at 251. ↩

Lamshed v Lake (1958) 99 CLR 132 at 135. ↩

(1958) 99 CLR 132 at 148, 152, 154. See also Spratt v Hermes (1965) 114 CLR 226 at 247. ↩

Attorney-General (WA) Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (1976) 138 CLR 492 at 526. See also Newcrest (1997) 190 CLR 513 at 599. ↩

(1949) 80 CLR 382 at 403, 406, 423, 430-431. ↩

(2009) 240 CLR 140 at 169 [40]. ↩

Hornsby Shire Council v The Commonwealth (2023) 276 CLR 645 at 662-663 [13]. ↩

ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 197-198 [135]-[136]. ↩

(1969) 119 CLR 564 at 570. ↩

R v Bernasconi (1915) 19 CLR 629 at 635; Mitchell v Barker (1918) 24 CLR 365 at 367; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585; Waters v The Commonwealth (1951) 82 CLR 188 at 191; Lamshed v Lake (1958) 99 CLR 132 at 142; Spratt v Hermes (1965) 114 CLR 226 at 243, 251-252. ↩

Spratt v Hermes (1965) 114 CLR 226 at 243, 252-253. ↩

(1978) 142 CLR 1 at 91. ↩

Spratt v Hermes (1965) 114 CLR 226 at 276. ↩

cf Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 332-333 [9] with 341 [39]. ↩

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 362-363 [80]-[81]; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162-163 [27]. See also South Australia v Totani (2010) 242 CLR 1 at 49 [72]; Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 425 [42]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 595 [41]. ↩

Vunilagi v The Queen (2023) 97 ALJR 627 at 663-664 [172]-[173]; 411 ALR 224 at 265-266. ↩

Teori Tau (1969) 119 CLR 564 at 570. ↩

See Newcrest (1997) 190 CLR 513 at 533. ↩

Victoria v The Commonwealth ("the Payroll Tax Case") (1971) 122 CLR 353 at 400. See also The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 151-152. ↩

Newcrest (1997) 190 CLR 513 at 614. ↩

Newcrest (1997) 190 CLR 513 at 568-569. ↩

(1997) 190 CLR 513 at 565, 614, 661. ↩

(2009) 237 CLR 309 at 359 [86], 388 [189], 419 [287]. ↩

Vunilagi v The Queen (2023) 97 ALJR 627 at 659-660 [155]; 411 ALR 224 at 260. ↩

Yunupingu v The Commonwealth (2023) 298 FCR 160 at 221-223 [257]-[265]. ↩

Vanderstock v Victoria (2023) 98 ALJR 208 at 316 [430]; 414 ALR 161 at 286. ↩

Wurridjal (2009) 237 CLR 309 at 359 [86], 367 [116], 388 [189], 391 [203]. ↩

Wurridjal (2009) 237 CLR 309 at 419 [287], 426 [312]. ↩

See, eg, Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 22(1), 23(1)(a); Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 50. ↩

Newcrest (1997) 190 CLR 513 at 542. ↩

See In re The Initiative and Referendum Act [1919] AC 935 at 945; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 119-121; Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 156-157; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 373-374, 381, 383, 385. ↩

Newcrest (1997) 190 CLR 513 at 594. ↩

Wurridjal (2009) 237 CLR 309 at 387 [186]-[187]. ↩

To use the difficult metaphor apparently coined in this context by Aickin J: Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 445. ↩

Attorney-General of the Commonwealth v Schmidt; Re Döhnert Müller Schmidt and Co (1961) 105 CLR 361 at 371. See also Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349-350; Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 445-448. ↩

Wurridjal (2009) 237 CLR 309 at 387 [186]. See also Constitution, s 96, discussed above at [259]. ↩

Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 641. ↩

Cherokee Nation v Southern Kansas Railway Co (1890) 135 US 641 at 658-659. See Newcrest (1997) 190 CLR 513 at 594. ↩

Newcrest (1997) 190 CLR 513 at 560-561. ↩

Newcrest (1997) 190 CLR 513 at 614. ↩

Newcrest (1997) 190 CLR 513 at 661-662. ↩

Newcrest (1997) 190 CLR 513 at 568. ↩

(2009) 237 CLR 309 at 468-469 [456]-[460]. ↩

Wurridjal (2009) 237 CLR 309 at 314-315. ↩

Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 445-448. ↩

Spratt v Hermes (1965) 114 CLR 226 at 240-241; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 331 [7]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 631 [167]. ↩

(1969) 119 CLR 564 at 570-571. ↩

Referring to Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 528, 600, 602, 634, 696, 714. ↩

Horta v The Commonwealth (1994) 181 CLR 183 at 193-194; XYZ v The Commonwealth (2006) 227 CLR 532 at 539 [10], 546 [30], 548 [38]. ↩

See the observations of Deane J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 600. ↩

(1975) 135 CLR 337. ↩

Berwick Ltd v Gray (1976) 133 CLR 603 at 605. ↩

(1975) 135 CLR 337 at 360. ↩

(1960) 106 CLR 186 at 197. ↩

Newcrest (1997) 190 CLR 513 at 613. ↩

Newcrest (1997) 190 CLR 513 at 613 (emphasis in original). ↩

Mabo [No 2] (1992) 175 CLR 1 at 69, 89, 110, 195-196; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 422, 439, 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 132-133. See also R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 235-237, 256, 264-265. ↩

(1988) 166 CLR 186. ↩

(1995) 183 CLR 373. ↩

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349. ↩

Mabo [No 2] (1992) 175 CLR 1 at 111. ↩

Newcrest (1997) 190 CLR 513 at 560, 561, 651. ↩

Mabo [No 2] (1992) 175 CLR 1 at 43. ↩

Mabo [No 2] (1992) 175 CLR 1 at 68. ↩

Mabo [No 2] (1992) 175 CLR 1 at 69. ↩

Mabo [No 2] (1992) 175 CLR 1 at 70. ↩

Wik Peoples v Queensland (1996) 187 CLR 1 at 188. ↩

cf Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403. See also Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (2014) at 147. ↩

Sac and Fox Tribe of Indians of Oklahoma v United States (1967) 383 F 2d 991 at 997; Wik Peoples v Queensland (1996) 187 CLR 1 at 94, 127-128, 156, 186, 189, 244. See also In re Southern Rhodesia [1919] AC 211 at 230-231, 239-241; Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (2014) at 38; Bartlett, Native Title in Australia, 5th ed (2023) at 280 [15.2]. ↩

Mabo [No 2] (1992) 175 CLR 1 at 50-51; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [47]. ↩

Maitland, Domesday Book and Beyond (1897) at 342. ↩

Mabo [No 2] (1992) 175 CLR 1 at 15, 50, 86-87, 193-194; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [47]. ↩

(1992) 175 CLR 1 at 58, 59. ↩

(1992) 175 CLR 1 at 87-88. ↩

Native Title Act, s 223(1). ↩

See Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at 82-83 [203]-[204]; Smith, "Property Is Not Just a Bundle of Rights" (2011) 8 Econ Journal Watch 279. ↩

JT International SA v The Commonwealth (2012) 250 CLR 1 at 107 [300]. ↩

Penner, "The 'Bundle of Rights' Picture of Property" (1996) 43 UCLA Law Review 711 at 714. ↩

Western Australia v Manado (2020) 270 CLR 81 at 114-116 [84]-[85]. ↩

Yanner v Eaton (1999) 201 CLR 351 at 373 [38], quoting Gray and Gray, "The Idea of Property in Land", in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15 at 27. ↩

Holdsworth, A History of English Law (1925), vol 8 at 151. See also Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 at 54-55; Bederman, Custom as a Source of Law (2010) at 81-84. ↩

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 442 [40]. ↩

Mabo [No 2] (1992) 175 CLR 1 at 61. ↩

Mabo [No 2] (1992) 175 CLR 1 at 60. ↩

Western Australia v Ward (2002) 213 CLR 1 at 93 [90]. ↩

Watson, "Law and Indigenous Peoples: The Impact of Colonialism on Indigenous Cultures" (1996) 14(1) Law in Context 107 at 110. ↩

See Mabo [No 2] (1992) 175 CLR 1 at 56-57, 82-83. ↩

(1992) 175 CLR 1 at 210-214. ↩

(1992) 175 CLR 1 at 94-95, 100-101, 110-111. ↩

(1992) 175 CLR 1 at 15-16 (Mason CJ and McHugh J), 43, 45-48, 51, 61 (Brennan J). ↩

Mabo [No 2] (1992) 175 CLR 1 at 51, 57. See also at 50, quoting Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403. ↩

(2001) 208 CLR 1 at 51 [47]. ↩

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 441 [38]. ↩

Akiba v The Commonwealth (2013) 250 CLR 209 at 219 [10]. ↩

Mabo [No 2] (1992) 175 CLR 1 at 60. ↩

(1998) 195 CLR 96. ↩

Fejo v Northern Territory (1998) 195 CLR 96 at 131 [57]. ↩

Fejo v Northern Territory (1998) 195 CLR 96 at 126-127 [42]-[45], 131 [56]-[57], 154 [112]. ↩

Fejo v Northern Territory (1998) 195 CLR 96 at 127 [45]. ↩

See Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46]. ↩

See above at [289]. ↩

Mabo [No 2] (1992) 175 CLR 1 at 70. ↩

(1992) 175 CLR 1 at 63. ↩

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at 269-270 [29], referring to Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 at 115. See also Bayley v Great Western Railway Co (1884) 26 Ch D 434 at 452; Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 at 225-226. ↩

See Brennan, "Native Title and the 'Acquisition of Property' under the Australian Constitution" (2004) 28 Melbourne University Law Review 28 at 69. ↩

See Wittgenstein, Philosophical Investigations, trans Anscombe (1953) at 32 §§66-67. ↩

Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290. ↩

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349. ↩

Board of Regents of State Colleges v Roth (1972) 408 US 564 at 577. See also Health Insurance Commission v Peverill (1994) 179 CLR 226 at 264 fn 12. ↩

Health Insurance Commission v Peverill (1994) 179 CLR 226 at 236. ↩

Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23 Yale Law Journal 16 at 28-30. ↩

Hart, "The Ascription of Responsibility and Rights", in Flew (ed), Logic and Language (1952) 145 at 148. ↩

(1994) 179 CLR 226. ↩

(1997) 190 CLR 513 at 613 fn 321. See above at [278]. ↩

Health Insurance Commission v Peverill (1994) 179 CLR 226 at 264-265. ↩

Health Insurance Commission v Peverill (1994) 179 CLR 226 at 265-266. ↩

JT International SA v The Commonwealth (2012) 250 CLR 1 at 48 [104]. ↩

Native Title Act Case (1995) 183 CLR 373 at 439. ↩

(1998) 194 CLR 1 at 73 [195]. ↩

The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 73 [196]. ↩

Western Australia v Ward (2002) 213 CLR 1 at 200 [432]. ↩

Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 10 at 152, 157. ↩

(1992) 175 CLR 1 at 63. ↩

(1955) 348 US 272 at 281-285. ↩

McNeil, "How the New Deal Became a Raw Deal for Indian Nations: Justice Stanley Reed and the Tee-Hit-Ton Decision on Indian Title" (2019-2020) 44 American Indian Law Review 1 at 1. ↩

Tee-Hit-Ton Indians v United States (1955) 348 US 272 at 279. ↩

Mabo [No 2] (1992) 175 CLR 1 at 194. ↩

(2001) 208 CLR 1 at 51 [47]. ↩

(2002) 213 CLR 1 at 94 [91]. ↩

(1998) 195 CLR 96 at 151 [105]. ↩

(2002) 213 CLR 401 at 457 [138]. ↩

(1992) 175 CLR 1 at 69. ↩

Native Title Act Case (1995) 183 CLR 373 at 453. ↩

Mabo [No 2] (1992) 175 CLR 1 at 63. ↩

Tjungarrayi v Western Australia (2019) 269 CLR 150 at 165 [36]. ↩

Yanner v Eaton (1999) 201 CLR 351 at 370-371 [31]. ↩

The Commonwealth v Yarmirr (2001) 208 CLR 1 at 68 [98], 165 [384]; cf 127 [285]. ↩

Akiba v The Commonwealth (2013) 250 CLR 209 at 225 [21]. ↩

Akin to laws considered in Mabo v Queensland (1988) 166 CLR 186 and Native Title Act Case (1995) 183 CLR 373. ↩

Newcrest (1997) 190 CLR 513 at 613, referring to Mabo [No 2] (1992) 175 CLR 1 at 111. ↩

See above at [278]. ↩

See Wik Peoples v Queensland (1996) 187 CLR 1 at 140. See also Mabo [No 2] (1992) 175 CLR 1 at 63. ↩

(1992) 175 CLR 1 at 64. ↩

(1996) 187 CLR 1 at 84. ↩

(1998) 195 CLR 96 at 127 [44]. ↩

Elliott, "Non-Derogation from Grant" (1964) 80 Law Quarterly Review 244 at 244. ↩

Bayley v Great Western Railway Co (1884) 26 Ch D 434 at 453. ↩

Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 at 225. ↩

Stead v Carey (1845) 1 CB 496 at 523 [135 ER 634 at 645], cited in Mabo [No 2] (1992) 175 CLR 1 at 64 fn 75. ↩

Mabo [No 2] (1992) 175 CLR 1 at 64. ↩

(1992) 175 CLR 1 at 111. ↩

(1996) 187 CLR 1. ↩

Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 2 at 16. ↩

Inst II.I.26. See G II.73; Inst II.I.29-30; D 6.1.23.6-7; D 9.2.50; D 41.1.7.10-12. See also Foskett v McKeown [2001] 1 AC 102 at 121-122. ↩

Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 26 at 404; McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 308. ↩

Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 2 at 18. ↩

The full maxim, attributed to the jurist Accursius in the 13th century, is cuius est solum, eius est usque ad coelum et ad inferos: whoever owns the land also owns everything up to heaven and down to hell. ↩

Edgeworth, Butt's Land Law, 7th ed (2017) at 34 [1.280] (emphasis in original). ↩

(1940) 63 CLR 52 at 70. ↩

North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 at 70. See also at 72 (Evatt J). ↩

See Chambers, An Introduction to Property Law in Australia, 5th ed (2025) at 211 [14.185]. ↩

Mining Act 1971 (SA), s 16. See South Australia, House of Assembly, Parliamentary Debates (Hansard), 3 August 1971 at 490-491, 493. ↩

Mining Act 1971 (SA), s 6. ↩

For instance, Mining Act 1992 (NSW), s 11; Mineral Resources Act 1989 (Qld), s 310; Mining Act 1971 (SA), s 18; Mineral Resources (Sustainable Development) Act 1990 (Vic), s 11; Mining Act 1978 (WA), s 85. ↩

Melluish v BMI (No 3) Ltd [1996] AC 454 at 473. ↩

Contrast Plant v Rollston (1894) 6 QLJ 98 at 106: "a 'royal mine of gold' is and comprises not only the actual gold but the stratum in which the gold is contained". ↩

Woolley v Attorney-General of Victoria (1877) 2 App Cas 163 at 166. ↩

The Case of Mines (1568) 1 Plow 310 at 336-337 [75 ER 472 at 510-512]. See The Commonwealth v New South Wales (1923) 33 CLR 1 at 20, 35 ("the converse to the law of fixtures"). ↩

Lyddall v Weston (1739) 2 Atk 19 at 20 [26 ER 409 at 409]. See Plant v Rollston (1894) 6 QLJ 98 at 102; Wik Peoples v Queensland (1996) 63 FCR 450 at 495. ↩

[1921] VLR 406 at 408, 410-411. See Transfer of Land Act 1915 (Vic), s 121. ↩

Tiffany, The Law of Real Property and Other Interests in Land (1903), vol 1 at 517 §219. ↩

Beatty v Mathewson (1908) 40 SCR 557 at 567-568. See also National Trust Co Ltd v Miller (1912) 46 SCR 45 at 65 (approved in Eastern Construction Co Ltd v National Trust Co Ltd [1914] AC 197 at 208); The Commonwealth v New South Wales (1923) 33 CLR 1 at 34, 61. But compare McDonell Estate v Scott World Wide Inc (1997) 149 DLR (4th) 645. ↩

Swadling, "Treehold", in Mrockova, Nair and Rostill (eds), Modern Studies in Property Law (2023), vol 12, 35 at 54. ↩

Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 3 at 20. ↩

Hall, A Treatise on the Law Relating to Profits à Prendre and Rights of Common (1871) at 1. See also Hohfeld, "Faulty Analysis in Easement and License Cases" (1917) 27 Yale Law Journal 66 at 97-99. ↩

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 at 91. ↩

Coke, The First Part of the Institutes of the Lawes of England (1628), bk 1 at 48b §59 ("A man may have an inheritance in an upper chamber, though the lower buildings and [soil] be in another"). See also Resumed Properties Department v Sydney Municipal Council (1937) 13 LGR (NSW) 170 at 172; Glentham Pty Ltd v City of Perth [1986] WAR 205 at 206-207, 211. ↩

Tiffany, The Law of Real Property and Other Interests in Land (1903), vol 1 at 516 §218. See Bowser v Maclean (1860) 2 De G F & J 415 at 420 [45 ER 682 at 684]; see also Commissioner for Railways v Valuer-General [1974] AC 328 at 352 and ARC Aggregates Ltd v Branston Properties Ltd [2021] 2 P & CR 1 at 6 [22]. ↩

Swadling, "Treehold", in Mrockova, Nair and Rostill (eds), Modern Studies in Property Law (2023), vol 12, 35 at 39 (footnote omitted). ↩

[2021] 2 P & CR 1 at 5-6 [21]-[23]. ↩

(1835) 2 Ad & E 705 at 744 [111 ER 271 at 287]. ↩

Sheppard's Touchstone of Common Assurances, 7th ed (1820), vol 1, ch 5 at 80. ↩

See The Commonwealth v New South Wales (1923) 33 CLR 1 at 61; Tiffany, The Law of Real Property and Other Interests in Land (1903), vol 1 at 703-704 §316. ↩

Duke of Hamilton v Graham (1871) 9 M (HL) 98 at 102-103. ↩

Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 194. ↩

Liford's Case (1614) 11 Co Rep 46b at 50a [77 ER 1206 at 1214]. ↩

Doe on the demise of Douglas v Lock (1835) 2 Ad & E 705 at 743 [111 ER 271 at 287]; Wickham v Hawker (1840) 7 M & W 63 at 76 [151 ER 679 at 685]; The Durham and Sunderland Railway Company v Walker (1842) 2 QB 940 at 967 [114 ER 364 at 374]. See also Tiffany, The Law of Real Property and Other Interests in Land (1903), vol 1 at 704 §316; Swadling, "Treehold", in Mrockova, Nair and Rostill (eds), Modern Studies in Property Law (2023), vol 12, 35 at 41. ↩

Proud v Bates (1865) 34 LJ (Ch) 406 at 411. ↩

See Statute of Frauds (29 Car 2 c 3), s 4. ↩

Chappell v New York, New Haven & Hartford Railroad Co (1892) 62 Conn 195 at 206-208; Claflin v Boston & Albany Railroad Co (1892) 157 Mass 489 at 492-493. See also Tiffany, The Law of Real Property and Other Interests in Land (1903), vol 2 at 874-875 §383. ↩

Doe on the demise of Douglas v Lock (1835) 2 Ad & E 705 at 745 [111 ER 271 at 287-288]; ARC Aggregates Ltd v Branston Properties Ltd [2021] 2 P & CR 1 at 6 [26]. ↩

(1835) 2 Ad & E 705 at 746 [111 ER 271 at 288]. ↩

(1823) 2 B & C 197 at 207 [107 ER 356 at 360]. ↩

The Earl of Cardigan v Armitage (1823) 2 B & C 197 at 207 [107 ER 356 at 360]. ↩

The Earl of Cardigan v Armitage (1823) 2 B & C 197 at 211-212 [107 ER 356 at 362]. See also Duke of Hamilton v Graham (1871) 9 M (HL) 98 at 109. ↩

(1847) 1 Legge 312 at 322. ↩

(1969) 121 CLR 177 at 194. See also Wik Peoples v Queensland (1996) 187 CLR 1 at 200-201. ↩

Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (1820) at 332; see, generally, at 332-334. See also Robertson, The Law and Practice of Civil Proceedings by and against the Crown and Departments of the Government (1908) at 178. ↩

The Case of Mines (1568) 1 Plow 310 at 337 [75 ER 472 at 512]. ↩