North Ganalanja Aboriginal Corporation and Another and The State of Queensland and Others [1996] HCA 2

In confirming the decision of the Registrar, both the President and the majority of the Full Federal Court proceeded, with the assistance of very detailed submissions on behalf of the State of Queensland (first respondent) and Century Zinc Ltd and CRA Exploration Pty Ltd (second respondents) to decide that any entitlement of the applicants to native title to the subject land had been extinguished by a grant by the Crown of a pastoral lease without relevant reservation preserving Aboriginal access and use. Such a lease was held to be inconsistent with the continued enjoyment of native title rights by the Waanyi people.

It is unnecessary for present purposes to examine the two pastoral leases relied upon by the respondents and the different opinions as to their effect held respectively by the President and the majority in the Federal Court. Some detail is contained in the reasons of the other members of this Court. In rejecting the claim at the outset the President, and the Federal Court, sought to apply the principles which they took to follow from the holding of this Court in Mabo v Queensland [No 2] [55] .

An early application was made to have the appeal from the President's ruling removed into this Court. The application failed [56] . The Federal Court proceeded to decide the appeal. It upheld the President's ruling. An application was then made on behalf of the Waanyi People for special leave to appeal. That application initially came before the Court, differently constituted, in December 1995 [57] . The applicants originally isolated three matters in respect of which special leave to appeal was sought. These were, put shortly, the "pastoral lease question", the "judicial power question", and the "procedural question".

1. North Ganalanja Aboriginal Corporation v Queensland (1995) 69 ALJR 569. 2. Brennan CJ, Dawson and McHugh JJ.

Because, in the interim, legislation had been foreshadowed to amend the Act, to change the respective functions of the Tribunal and the Federal Court, the applicants did not pursue the judicial power question [58] . So far as the "procedural question" was concerned, counsel for the applicants also disclaimed it upon two stated bases. The first was that the amendments to the Act appeared likely to alter the Tribunal's procedures, including those which had given rise to the applicants' complaints. Secondly, having regard to the way in which the President and the Federal Court had dealt with the substantive entitlements of the applicants, remitting the proceedings to the Tribunal for the pursuit of corrected procedures would, in the events which had occurred, have no point [59] .

1. Reference was made to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 which, it was suggested, occasioned the need for the proposed amendments to the Act or some of them. 2. Transcript of the special leave application, 15 December 1995, pp 5ff.

However, during the original argument of the special leave application, it ultimately became clear that the Court considered that the "procedural question" might well attract special leave, quite apart from the "pastoral lease question" which had become caught up in its resolution in the Tribunal and Federal Court. For that reason, the application was adjourned to the Full Court of this Court for determination. Over the opposition of the respondents, the applicants were granted leave to amend their application to rely upon "the procedural point" as it had been elucidated. It is in this way that, after many hearings before the Tribunal, the Federal Court and two earlier applications before this Court, the summons for special leave arose to be determined by this Court as now constituted.

Two questions were, in my view, presented for decision:

1. Whether the Tribunal had erred in the approach which it had taken to the procedures required by the Act? and

2. If it did, whether, in the events which had occurred, and specifically the conclusions (although upon different bases) of the Tribunal and the Federal Court that the applicants' native title had been extinguished long ago by a relevant lease, this Court should now proceed, as the respondents, the intervening States, the Northern Territory and initially the applicants requested, to determine the "pastoral lease question"?

Obviously, if the first question were answered in the negative, the applicants would have been required to argue the issue which they originally came to argue before the Court in December 1995, viz whether the pastoral leases found to have been granted in this case, or either of them, by the applicable law, had the effect of extinguishing the native title of the Waanyi people. There would also remain a subordinate, but consequential, legal question concerning the power of the colony and State of Queensland to enact laws, and engage in executive action, to grant pastoral leases which had the effect of extinguishing native title. Having regard to suggested limitations on the powers said to have been entrenched in relevant imperial and colonial constitutional instruments, the applicants sought to argue that any purported extinguishment by Queensland law was invalid.

Having heard argument confined to the procedural question, this Court on 8 February 1996 terminated the hearing, made orders granting special leave to appeal from the judgment of the Federal Court, allowed the appeal, set aside the Federal Court's orders and, in lieu of them, ordered that the appeal from the decision of the President be allowed, the President's decision set aside and the matter remitted to the President with an order that he direct the Registrar to accept the applicants' application for determination of their native title claim.

The applicants thus succeeded on the procedural point which they had initially disclaimed as a point warranting special leave to appeal but which they embraced, with understandable enthusiasm, when it became clear that this was the basis upon which this Court was moved to intervene.

I would agree with other members of the Court that the "procedural point" was a good one. In my view, the procedures before the Tribunal miscarried. The Federal Court should have so held. Clearly, the point was raised in the appeal to that Court. However, in the way the matter developed, I would have upheld the submission of the respondents and interveners that the Court should determine the "pastoral lease question" in this case. Until determined, as it might have been, it will remain a Damoclean sword hanging over the operation of the Act and the rights of many parties, including those presently before the Court.

For the resolution of the "procedural" point it is necessary to determine the meaning of s 63(1) of the Act. That section reads:

If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion:

(a) that the application is frivolous or vexatious; or

The application to the Registrar on behalf of the applicants was made on 27 June 1994. It was not suggested that it was otherwise than in accordance with the prescribed form (Sch 1) and accompanied by the affidavit required by s 62(1) of the Act expressing the applicants' belief that native title had not been extinguished. Nor was it suggested that the statements made in the application were untrue, that the land was inaccurately described or that the applicants do not represent the Waanyi people.

The miscarriage of the procedures which are required by the Act appears to have arisen following an unsolicited letter of 30 June 1994 sent to the Registrar on behalf of the second respondents. This expressed concern that the application might be accepted in respect of the subject land without the Registrar's having pertinent information. Those companies have contingent interests which could be affected if a claim to native title to the land were accepted. The Act does not contemplate that persons in the position of the second respondents must be formally notified of the claim at the time of the lodgment of an application with the Registrar. Indeed, the Act contains no provisions whereby, at that stage, they may become "parties" to the application. However, in the nature of such claims, they tend to attract publicity, especially locally. Presumably it is in this way that the second respondents came to know of the application and to make their representations to the Registrar. These representations resulted in the provision to the Registrar of various documents, obtained from various Queensland authorities, relating to the alleged history of dealings in the land. This material, in turn, was forwarded to the Carpentaria Land Council for comment on behalf of the applicants. Detailed submissions were then made. On 12 August 1994 the Registrar, on the basis of the foregoing, formed the opinion that prima facie the applicants' claim could not be made out. Pursuant to s 63(2) of the Act, she referred the application to the President with notice of her opinion [60] .

1. By s 63(2) the Registrar has little room to manoeuvre having formed the requisite opinion; cf Northern Territory v Lane (1995) 59 FCR 332 at 337.

Having received the reference, the President was then obliged to act as s 63(3) of the Act requires. If he were of the same opinion as the Registrar, he was obliged to advise the applicants in writing of the fact, to give them the opportunity to satisfy him, relevantly "that a prima facie claim can be made out". If then so satisfied, the President must direct the Registrar to accept the application. If not so satisfied, he must direct the Registrar not to accept it.

Having considered the matter, there followed a very extensive proceeding before the President which ultimately resulted in a direction of the latter kind. Effectively, this confirmed the Registrar's opinion. It is worth mentioning a little of the detail of the course which then followed for it is relevant to my conclusion that it is not what the language of the Act, its scheme and purpose envisaged.

On 18 August 1994 the President notified the applicants that he was of the same opinion as the Registrar on the ground that the native title claimed by them had been extinguished by the grant of a pastoral lease over the land [61] . Invitations were given both to the applicants and to the present respondents (although not then "parties") to make submissions. A preliminary hearing took place in Brisbane on 25 August 1994. A ruling on the procedures to be followed was made on 15 September 1994 [62] . Over the objection of the applicants, the President decided that the Registrar, although not obliged to make inquiries and receive information was entitled to do so.

1. The President relied on the grant under the "1883 lease" as explained in the reasons of the majority. 2. See Re Waanyi People's Native Title Application (1995) 129 ALR 100.

The President next sought submissions on the substantive issues. This produced submissions covering "thousands of pages" of supporting documents. A directions hearing was heard on 23 September 1994. A substantive hearing was conducted on 8 and 9 September 1994. The ruling of the President rejecting the native title claim was made on 14 February 1995. The basis of the ruling was the extinguishment of the native title by the grant by the Crown of a lease inconsistent with its continuance.

Before the Federal Court and eventually before this Court the applicants argued that, in adopting the procedure described, the President, and by sanctioning it, the majority of the Federal Court, had misconceived the functions assigned to the Registrar (and the President) by s 63 of the Act. They had deprived the applicants of the valuable privileges of negotiation and mediation contemplated by the Act. And they had imposed upon the procedures established by the Parliament undue delay, complexity and cost inappropriate to the ex parte, administrative consideration of a "claim". In short, they had misconceived the proper functioning of the Tribunal and prevented the achievement of the purposes of the Act.

The President, in the Tribunal, and the majority in the Federal Court rejected the applicants' objections to the procedures adopted. The President, as I have indicated, considered that the procedures adopted by the Registrar were open to her. Addressing his attention to the meaning of the opinion "that prima facie the claim could be made out", the President said [63] .

[T]hat ordinary meaning of the words is in some degree metaphorical and does not, in my opinion, preclude some investigation by the registrar for the purpose of determining whether it can be said at the outset that the claim could not be made out. She may, for example, conduct a current land tenure search and discover that part of the area under claim is freehold land which has clearly extinguished native title. Having so found, she could rightly conclude that prima facie the application could not succeed. She might also conduct a land tenure history search and discover that some leasehold interests, had been granted in the past which, in her opinion, left no room for doubt that native title had been extinguished. Again, she could properly come to the conclusion that, prima facie, the claim could not succeed. Or she might seek some advice on the plausibility, from an anthropological perspective of the native title rights and interests claimed and come to the conclusion, on the basis of such advice, that prima facie the claim could not succeed. The Federal Court was not reviewing, as such, what the Registrar had done but what the President had determined. At that point (having regard to the Registrar's opinion) the onus had shifted to the applicant to demonstrate "that a prima facie claim can be made out". The majority of the Federal Court was not prepared to dispose of the appeal on the basis of the applicants' objection to the procedures which had been followed. But it is fair to say that some of their Honours' remarks evidence a disquiet about those procedures. This was unsurprising given the delay which the procedures had imposed upon the consideration of the claim, the numerous hearings involved, the enormous bulk of written material which was generated, the cost incurred and the consequent deprivation of the facilities contained in the Act, including those of negotiation and mediation. Thus Hill J in his reasons [64] said:

[The question] is whether the manner in which his Honour approached the issue before him and in particular by considering evidence both on continuous attachment and extinction which was voluminous and submissions which were, to say the least, lengthy, went so far beyond the process contemplated by s 63(3) as to amount to error. There is some substance in this submission.

It must be recalled that the inquiry under s 63(3) exists in the context of determining whether an application is to be accepted. The legislation contemplates that inquiries into and determinations of the existence of the title claimed will follow later. Disputed claims will not be decided by the Tribunal but by this court, if the matter is referred to it under the Act, or in proceedings at common law. Notwithstanding the injunctions upon the Tribunal to act efficiently and economically, the Act does not contemplate the full scale litigation which his Honour's calling for evidence and submissions brought about.

Nevertheless, "on balance" the Federal Court majority declined to uphold the applicants' objection on the procedural point. In this way the Court went on to examine the "pastoral lease question". Whilst critical of the extensive process of fact-gathering observed in this case, the Court preferred to grapple with the more fundamental question which was said to be at its heart. The majority determined that the applicants' native title had been extinguished by the later lease relied upon by the respondents (the 1904 lease). The Federal Court thus upheld the order of the Tribunal rejecting the applicants' claim. It is from the orders which followed that decision that the application for special leave to appeal came to this Court. 1. Re Waanyi People's Native Title Application (1994) 129 ALR 100 at 112. 2. North Ganalanja Aboriginal Corporation v Queensland (1995) 61 FCR 1 at 40.

The "procedural" question is obviously important to the administration of the Act. That is why this Court isolated it and dealt with it first. Getting claims before courts or tribunals empowered to determine native title disputes is obviously critical to an applicant. Unless a claimant can pass through the initial gateway, it will find it difficult, or impossible, to come at justice.

In other jurisdictions, it has been recognised that, in relation to a land claim on behalf of indigenous people, an approach may be taken at the initial stage which, later, more detailed analysis shows to have been unduly generous to the applicants. Thus in Re Paulette [65] the Supreme Court of the Northwest Territories of Canada had to consider a claim by "various Indian bands" for a caveat in respect of unextinguished native title claimed over 400,000 square miles. The Court upheld the claim, Morrow J commenting [66] :

Because of the nature of these proceedings I do not consider it necessary to consider the evidence in depth. As I see my function, I am to look for a prima facie situation or a situation which may promise a possibility of a claim. At such point, if reached, I must then stop. It will be for some other tribunal to make the in-depth analysis of the evidence, to rework the same ground, and to make the final assessment. 1. [1973] 6 WWR 97. See also Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. 2. Re Paulette [1973] 6 WWR 97 at 119. Relief was denied by the Federal Court of Canada. See Attorney-General (Canada) v Morrow [1973] 6 WWR 150 at 156.

The approach adopted by the Registrar and by the President in this case was entirely different. It was the approach which they each felt they were entitled, or obliged, to take having regard to the terms of the Act. But their approach did not pass without critical comment either in the observations in the Federal Court, to which I have referred, or in commentary upon the operation of the Act [67] .

1. See, eg, Nettheim, " "Moral Shortcoming": Waanyi Peoples and Native Title" (1995) 3 (73) Aboriginal Law Bulletin 10; Bartlett, "Undermining the National Native Title Tribunal - Waanyi No 1 and 2" (1995) 3 (73) Aboriginal Law Bulletin 14; Kennedy, "Lawn Hill's Pastoral Leases: North Ganalanja & Bidanggu Aboriginal Corporations for the Waanyi People v Queensland & CRA" - case notes (1995) 3 (77) Aboriginal Law Bulletin 17.

The meaning of the critical expression ("that prima facie the claim cannot be made out") must be derived from the words used by Parliament as understood in their context and for the achievement of the apparent purpose to be attributed to Parliament. The duty of fidelity to the legislative language has been emphasised many times in this Court, including recently [68] . Where a phrase such as a "prima facie claim" or "prima facie case" is used, it may be helpful to have regard to earlier decisions which have considered such expressions in different statutory contexts [69] . At a general level, there is not much dispute that, by directing the attention of the Registrar to form the opinion whether "prima facie the claim cannot be made out" the Act requires him or her to reach that opinion "at first sight" or "based, or founded, on first impression". But generalities must give way to the specific context of the language of the Act. Remarks made concerning similar expressions in earlier cases arising under other legislation must be subordinated to the meaning to be ascribed to the phrase used in the present context. That context is in many ways peculiar. General cautionary words about lifting elaborations of statutory phrases offered in one statutory context for application to another must be read with special vigilance in seeking to give meaning to the phrase used in the present novel legislation. Its expression is often opaque. But it is obviously designed to provide a just, efficient and accessible scheme for the consideration of native title claims following the decision of this Court in Mabo [No 2].

1. See, eg, Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. 2. As to "prima facie case" see, eg, May v O'Sullivan (1955) 92 CLR 654; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622; American Cyanamid Co v Ethicon Ltd [1975] AC 396; A v Hayden [No 1] (1984) 59 ALJR 1 at 4f; 56 ALR 73 at 77f; Bunker v Mahoney [1917] VLR 65 at 67; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 303.

In approaching the meaning of particular provisions of the Act, and in defining the mischief to which the particular provision in question is directed, it is pertinent to notice some of the statements in the Preamble by which the Parliament sought to explain its general purposes. These include [70] :

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b) proposals for the use of such land for economic purposes.

It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.

The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.

Not only is the Preamble to the Act unusually long. Its language is unusually discursive. But this is doubtless because it addresses a significant matter of justice occasioned to the indigenous inhabitants of Australia which moved the Parliament, after the decision in Mabo [No 2], to enact the Act. Whilst the Act must be construed in accordance with its terms, it would be wrong for this Court, or any court or tribunal in the land, to construe it narrowly or to sanction procedures which would have the effect of undermining, or frustrating, its operation as the Parliament envisaged. 1. The Act, Preamble.

In my approach to problems of statutory construction I am rarely attracted to the assertion that only one construction is available. By the time such problems reach appellate courts - and particularly this Court - the judicial task is one of considering the competing arguments and choosing the construction which appears preferable. That choice is better made after a candid evaluation of the arguments which support the competing conclusion. It is so in this case.

Amongst the principal arguments which tend to support what was done by the Tribunal and sanctioned by the majority of the Federal Court, are the following:

By enacting a provision for the rejection, at the threshold, of an application where the Registrar is of the opinion that prima facie the claim cannot be made out, it must be accepted that Parliament intended that such cases would arise from time to time. They would arise apart from cases of frivolous and vexatious applications, separately provided for. They might arise from the very moment that the Act came into force and before the major legal controversies affecting native title claims had been clarified. In other contexts, a fatal legal flaw has been held to be within the notion, defeating a prima facie case sought to be made out [71] . If, in this case, it could readily be established that a claim was subject to a fatal legal flaw, that was, so the respondents argued, the very kind of instance for which the relief under s 63(1)(b) of the Act was available to those who would otherwise be vexed by a claim ultimately doomed to fail. A safeguard against unwarranted exclusion of the claim at such a preliminary stage was provided by the requirement, in s 63(2) of the Act, that the Registrar must refer any such opinion to a presidential member. With that safeguard, the section should be given an ample construction to permit, in effect, a point of law to be raised at the threshold if the Registrar, with notice of it, considered it to be appropriate to do so.

In support of that facility is the power given to the Registrar by s 65(1) of the Act, with the approval of the President, to exercise any of the powers " in relation to an application " that the Tribunal may exercise under ss 155-159 of the Act. These include the power to receive documents, the disclosure of which may be prohibited (s 155); to take oral evidence (s 156); to authorise another person to take evidence (s 157); to use interpreters (s 158); and to retain and copy documents (s 159). Whilst such powers might occasionally be required to deal with suggestions that an application is frivolous or vexatious or that it does not comply with the formal requirements of s 62 of the Act, on the face of the Act the subsection suggests that, with the approval of the President, the Registrar is permitted to receive evidence of the kind taken in the instant case, once a serious possibility of a fatal legal flaw was put into the mind of the Registrar, from whatever source.

As the progress of the instant case demonstrates, and as common experience suggests, land claims of any kind, and native title land claims in particular, are apt to involve protracted litigation. Such litigation is time-consuming, costly, distracting and sometimes stressful for those involved. A facility for the ready disposal of such a claim at the very outset, on the basis of a suggested legal flaw, should not be read out of the Act, for that was precisely what was meant by affording the Registrar power to refer the matter to the President if of the opinion that "prima facie the claim cannot be made out". To dispose of such a claim at an early stage is not only in the interests of those who dispute the claim to native title. Their rights might otherwise be held in abeyance by acceptance of the claim for a very considerable time until the claim is finally determined. But it may also be in the long-term interests of the claimants who will otherwise embark upon a lengthy proceeding only to find it denied after much cost, time and anxiety have been expended.

The question whether pastoral leases extinguish native title to land in Australia was touched upon by members of this Court in Mabo [No 2] [72] . The point did not have to be finally resolved in that case. In the Preamble to the Act, the Parliament stated that this Court had:

(c) Held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.

As it had been suggested to the Registrar that a question arose at the threshold, it was both convenient and lawful for her to form an opinion on the question. By then referring the matter as the Act required to the President, she tendered an important issue for resolution. Potentially it could affect this and many other claims. The lawful resolution of the point of doubt would promote the good administration of the Act. Even if others might not have exercised the power in the way the Registrar did, she had that power. It was open to her, in the discharge of her statutory functions, to determine the preliminary point, reach an opinion and invoke the jurisdiction of the President who (subject to any constitutional disqualifications) would then conveniently decide the point not only for the instant case but, by analogy, for many others waiting in the wings for determination. If any person affected by the present application were aggrieved by the President's decision, a facility of appeal to the Federal Court would arise under s 169(2) of the Act.

The Registrar, and the President, are obliged and entitled to find and apply the law to a claim for native title. The Tribunal is not exempt from the application of the law because it is an administrative body [73] . If, on the basis of factual material placed before the Tribunal, a clear view is formed that, as a matter of law, the claim to native title could not be made out, it would be unrealistic and unreasonable to suggest that the claim should nonetheless be accepted merely so that negotiations may take place. What would then be accepted would not constitute a "claim" to "native title" as defined. The facilities of negotiation and mediation would be empty. The claim would be known to have a fatal legal flaw. In such circumstances, the sooner the suggested flaw was disposed of, the better for all concerned, and for the husbanding of the scarce public resources of the Tribunal (and the Court) for dealing with the many other claims which are free of such defects. I acknowledge the force of these arguments. They carried the Tribunal and the majority in the Federal Court. I do not pretend that the meaning to s 63(1)(b) of the Act is completely clear. However, in the end, I have reached the view that what happened in this case not only frustrated but is contrary to the purpose and scheme of the Act. Within the context of that scheme, s 63(1)(b) of the Act must be given a meaning which avoids the procedure that was adopted on this occasion.

1. See, eg, May v O'Sullivan (1955) 92 CLR 654 at 658. 2. (1992) 175 CLR 1 at 15, 69 217. 3. See, eg, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399, 411f.

A number of considerations in the Act support the applicants' case. They drove me ultimately to the conclusion reached by the Court on the "procedural question":

1. The language of s 63(1) is imperative. The Registrar "must accept" the application. He or she must do so unless of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out. The terms of s 63(1)(a) give a clue as the administrative procedure envisaged and the very limited circumstances in which par (b) will apply. Often (although not always), what is frivolous or vexatious will be manifest on the face of the application. Similarly, it is where, on the face of its terms, the "claim" (not the "case") cannot be made out that s 63(1)(b) applies. The clear indication of the opening words of s 63(1) and of the procedure it enlivens, is that ordinarily a claim, formally valid, must be accepted. The exceptions are very limited. They involve extreme cases. This impression of the intended operation of s 63(1) is confirmed by a consideration of the character of the donee of the statutory powers nominated and by the way in which the subsection fits within the overall scheme of the Act giving successive functions to the Registrar, the Tribunal and the Federal Court.

2. The obligation to give notice to "all persons whose interests may be affected" is specifically provided for in the Act. It is contained in s 66(1)(a). But that paragraph arises for operation only after the application is accepted under s 63. Yet in the instant case, both the Registrar and the President felt the need to give notice, at the preliminary stage, in order to invite detailed submissions from persons affected. Without commenting on the propriety of their doing so, in the way in which they each approached their functions [74] , the consequence was to telescope a procedure which the Act provides will arise at a later stage, after the application has been accepted and the procedures before the Tribunal have been properly invoked.

1. cf Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576.

3. Such a telescoping has a serious consequence for an applicant. Whereas at the stage of the presentation of a claim to the Registrar, he or she is ordinarily obliged to accept it, after the contrary opinion is formed, by s 63(3)(a) of the Act, the burden of establishing that "a prima facie claim can be made out" shifts to the applicant. Given the ordinary purpose of the Act, to facilitate the receipt of claims, shifting the burden to the applicant at such an early stage, in effect to prove that the claim can be made out, constitutes a significant departure from the apparent scheme of the Act. It is also a departure from the ordinary procedures by which claims in this country are usually initiated in courts and tribunals. It is not usual, at the stage of the filing of a claim which invokes the jurisdiction of a court or tribunal, for the applicant to be required to prove that "prima facie a claim can be made out". It would normally require something quite exceptional to afford a person with an adverse interest such an advantageous position to exclude the claim at such a stage.

4. It is only once the claim is accepted that the Registrar is obliged to record details of the application in the Register of Native Title Claims, with the statutory consequences which attach to that act (s 66(1)(b)). Notice must only then be given to a wide range of persons and to the public (s 66(2)). Only then is the Tribunal empowered to decide, if necessary, that the interests of a person may be affected (s 69(1)). If, then, an application is unopposed, and if the Tribunal is satisfied "that the applicant had made out a prima facie case for a determination" and that it is just and equitable to do so, the Tribunal is empowered to make a determination (s 70(1)). Similarly, if the parties reach agreement, as they may by discussion amongst themselves, the Tribunal is afforded power to make a determination in accordance with, or consistent with, the terms of the agreement (s 71). If there is no such agreement, the President is obliged to direct "the holding of a conference" (s 72(1)). This must be presided over by a member of the Tribunal (s 72(2)). It is given the statutory protection of without prejudice negotiations (s 72(3)). Facilities are available, such as participation by telephone, closed circuit television or other means of communication (s 72(5)). The statute envisages that, after such a mediation conference, there will be some cases where the parties agree. The Tribunal is then empowered to make a determination in, or consistent with, the terms of their agreement (s 73). Only if the matter is still not settled by a determination by the Tribunal is the Registrar obliged to lodge the application in the Federal Court for its decision.

It is important to emphasise that the purpose of the Tribunal is to facilitate negotiation, discussion and agreement, if at all possible. Where a dispute persists, the Tribunal has no jurisdiction to resolve it. The unresolved dispute is referred to the Federal Court for judicial determination. The proper meaning and application of the registration of claims, envisaged by s 63, must be understood in the context of such a tribunal with such procedures. It would be curious, and an apparent negation of the detailed procedures of the Tribunal, if claims could too readily be excluded from acceptance by the application of s 63(1)(b) and the adoption of the very extensive preliminary proceeding which unfolded in this case. Specifically, to give the paragraph such a meaning would be to deprive the applicants of the facilities of mediation and negotiation enacted by the Parliament in the hope of promoting settlement by conciliation as the Preamble to the Act expressly envisaged.

5. A limited view of the facility afforded by s 63(1)(b) does not frustrate the right of a party to raise objections of a legal character to the effect that a claim to native title is "fatally flawed". If a respondent raises and maintains that objection, and the application is not settled, it must be referred to the Federal Court. The Tribunal then has no power to determine it. If at any time a respondent identifies a crucial legal question, it may ask that the member presiding determine it as a preliminary matter (s 144(1)). The Tribunal may, on its own initiative or on the request of a party, refer such a question of law arising in an inquiry to the Federal Court for decision (s 145(1). But see s 145(2).) Ordinarily it would be expected that such a question would not be referred until the procedures envisaged by the Act had been fulfilled: ie all affected persons had been notified and given an opportunity to be heard; opportunities for negotiation and mediation explored and exhausted; and the factual issues in contest resolved by appropriate findings. Instead of following these procedures, laid down by the Act, the approach to s 63(1)(b) adopted on the present application diverted the claim to exhaustive preliminary hearings. This was done before the facts were fully explored and before the applicants could have the benefit of the negotiation and mediation procedures which Parliament saw as components essential to the just and efficient determination of claims of this kind, necessary because of their "unique character". Clearly, the procedures adopted disadvantaged the applicants. They were deprived of the chance to have their undetermined claim submitted to mediation.

6. The course adopted also took place in a context where the law concerning the impact of pastoral leases on the continuance of native title was clearly identified by this Court as a major issue but not determined. Sometimes, in negotiation, uncertainty of each side is an advantage. Neither side being absolutely sure how the legal cards will fall out, they can negotiate an agreement which might not ensue if it were authoritatively determined that one side had, or did not have, a legal claim. Far from saving costs and time, the lengthy preliminary procedures which occurred on this occasion demonstrate the wisdom of the statutory scheme of directing parties, after a claim is accepted, to a conference, the object of which is to help resolve the matter. In the procedure adopted, the chance of such resolution was lost. A telescoped hearing took over from the provisions enacted by the Parliament. Instead of a claim, disputed by parties, being referred to be determined by the Federal Court after all such preliminary hearings were exhausted, the Tribunal effectively assumed the Court's ultimate function and determined the disputed claim at the outset adversely to the applicants.

Having set s 63(1)(b) of the Act in the context of the overall statutory scheme, and demonstrated how its meaning was misunderstood and mis-applied in this case, it is necessary to say something about the correct construction of the paragraph. It is important to notice the difference between the use of the phrase "prima facie claim" in s 63(1)(b) and "prima facie case" in other sections of the Act, eg ss 70, 148. That distinction lays further emphasis upon the approach which the Registrar is required to take upon receipt of a "claim". That approach envisages examination of the claim on its face. It does not envisage the consideration of additional factual material unless something on the face of the claim clearly raises a serious doubt that the claim cannot be made out. It is not the function of the Registrar, at that stage, to receive, still less to invite, evidence or submissions which will produce doubt which does not exist on the face of the claim. To do so would be to defeat the scheme of the Act. To the extent that the Registrar did so in the present case, and to the extent that the President failed to correct her and went on to compound her mistake, an error of law occurred. It was a serious error which the Federal Court should have corrected. It should have done so because it is essential, at this early stage in particular, for the procedures of the Tribunal to be properly ordered, conformably with the Act. The point was clearly raised before the Federal Court by the applicants. They should have had relief upon it.

This view of s 63(1)(b) of the Act still leaves the paragraph with work to do. On the face of the claim there may be an obvious flaw, just as applications which are frivolous or vexatious will often be manifest on their face. I do not say that the powers provided to the Registrar by s 65(1), with the approval of the President, to receive documents and take evidence may not be available in certain very exceptional cases following lodgment of an application. But the need for such material must appear, as s 63(1)(b) envisages, on the face of the claim. It cannot be imported by an initiative of a contesting interest, taken out of order which, if allowed to succeed, will subvert the scheme of the Act.

It is a barren exercise to decide whether (as the applicants claim) the Registrar lacked power under s 63(1)(b) to do what she did or (as I am inclined to think) she exercised her powers according to a wrong principle and in a way that was never envisaged by the Act. In either case, her opinion ought to have been corrected by the President. If not corrected by him, it ought to have been corrected by the Federal Court. The usual restraints which govern, and in my view rightly govern, the striking out of claims before parties have had the opportunity to advance them in an orderly fashion and in the usual way [75] apply with even greater force in the context of this Act, with its large national purpose and its carefully designed procedures.

1. See Webster v Lampard (1993) 177 CLR 598 at 619.

It not being suggested that any flaw in the applicants' claim was obvious on the face of the claim itself, and the proof of the suggested flaw involving such protracted, extensive and expensive procedures, the only proper exercise of the power conferred on the Registrar by s 63(1) of the Act was in this case to accept the claim. Without more, that conclusion would sustain the orders announced by this Court in disposing of the application, and the appeal, on 8 February 1996.

But there is more. The case cannot in my view rest there.

The proceeding before this Court was an application for special leave to appeal. That application enlivens the jurisdiction of this Court to permit the determination, on appeal, when appropriate, of significant questions of law of importance to the Australian legal system. No one doubts that the suggested effect upon native title of pastoral leases, where proved, is a matter of the greatest importance not only to the present parties but to many other parties waiting for their claims to be determined [76] . It is also important to the States of Australia and to the Northern Territory which asked this Court to deal with the "pastoral lease question". Further it is of great significance to the Australian community which, since Mabo [No 2], has been left in a position of uncertainty about the consequences of pastoral leases for native title. The application for special leave to appeal in this case would have afforded the Court an opportunity to elucidate that question. It is here that I part company from the other members of the Court. Far from being impossible of determination, I respectfully regard the "pastoral lease question" as one important to be determined and appropriate in this case.

1. See affidavit of Ms Janine Ward of the Federal Attorney-General's Department. She deposed to reliable information that, at 23 November 1995, the Registrar of the Tribunal had received 156 applications for a determination that native title exists. "It is estimated that 86 of these applications related to land which was or had been the subject of a pastoral lease; 12 of these leases were held by or on behalf of Aboriginal people." Ms Ward also deposed that "in a number of mediation conferences the parties are often unwilling to mediate in relation to claims on land which is or has been subject to the grant of a pastoral lease while the effect of that grant on native title is unresolved".

The source of the uncertainty on the issue of pastoral leases derives from a point which did not have to be finally resolved in the facts of Mabo [No 2]. Brennan J [77] stated that, under a lease granted by the Crown, where the Crown relied on its radical title, the lessee acquired possession and "the Crown acquired the reversion expectant on the expiry of the term". Thus, "on the expiry of the term" the Crown's title was expanded to plenum dominium. But various other passages in Brennan J's reasons suggest that his Honour considered that the Crown's act of granting a lease under its radical title might be capable of extinguishing native title at the point of the grant [78] . Mason CJ and McHugh J, who generally agreed with the reasons of Brennan J in Mabo [No 2], insisted that the formal order of the Court be "cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration" [79] . Consequently, the declaratory order made by the Court excluded reference to the effect in that case of the grant of a lease by the Crown [80] .

1. See Mabo [No 2] (1992) 175 CLR 1 at 68. 2. Mabo [No 2] (1992) 175 CLR 1 at 61, 69, 72-73. 3. Mabo [No 2] (1992) 175 CLR 1 at 16. 4. Mabo [No 2] (1992) 175 CLR 1 at 217.

Deane and Gaudron JJ appear to have acknowledged that native title could be extinguished by an unqualified grant by the Crown of an inconsistent estate in the land, such as a grant in fee or a lease conferring the right to exclusive possession [81] . As I read the reasons of Toohey J, his Honour did not decide the question. Dawson J (in dissent) was of the opinion that, upon an annexation of the Murray Islands, the Crown obtained the entire beneficial interest which extinguished any pre-existing native title. So far as the effect of the grant of a lease was concerned, his Honour was quite plain that such leases were [82] :

inconsistent with the preservation of native title, although in the latter case the lease was subject to conditions that the lessees would not in any way obstruct or interfere with the use of the Murray Island natives of "their tribal gardens and plantations" on the demised land and would not in any way obstruct or interfere with the operations of the Murray Island natives who fished around the reefs adjacent to the demised land. The construction of public buildings and the carrying out of public works on the islands is also inconsistent with the preservation of native title. 1. Mabo [No 2] (1992) 175 CLR 1 at 110, 117. 2. Mabo [No 2] (1992) 175 CLR 1 at 158.

The consequences of the grant of leases, and the particular consequence of the grant of pastoral leases of the kind common in colonial and immediately post-colonial Australia, and alleged to have been granted here, are therefore extremely important questions for the preservation or extinguishment of the native title claimed in this case. So much was urged by the respondents. It was also argued by each of the interveners. So much was initially urged for the applicants. Through their counsel they told the Court, on the original return of the application for special leave, that they would be in an extremely difficult position if the matter were returned to the Tribunal after determination of the procedural point only. The President would then be faced with a decision of the Federal Court that there had been an extinguishment of native title in this case. That decision might not, in law, bind the parties as res judicata. It might be deemed obiter, having regard to the way the procedures in the Tribunal had miscarried. But it would inevitably affect the respective positions of the parties. It would necessarily influence the conduct of the proceedings before the Tribunal.

When this Court's position was made clear, the applicants resiled from this position. They embraced the suggestion that they should return to the Tribunal to start again with their claims. With all respect, I cannot agree, in the events which have occurred, that such is a proper disposal of the application for special leave. It is right for the Court to identify the procedural error. But it would be wrong for the Court to ignore the important public interests, and the interests of parties, by postponing the determination of the "pastoral lease question" now proffered to it by the decision under appeal.

Mine is a minority view in this regard. Let me attempt to explain my reasons:

Whether the President and the Federal Court should have proceeded, to determine the effect of the pastoral leases upon the applicants' claims to native title or not, they did so. There is now a decision of a court, with the authority of the Full Court of the Federal Court of Australia, that the applicants, in law, have no claim to native title for it has been extinguished by operation of law. That decision cannot be wished away. It is either right or wrong. One day, sooner rather than later, this Court will have to deal with the effect of pastoral leases. The respondents, whose interests were vitally affected, asked that it do so in their case. The question arose on an application from the Federal Court which tendered the issue to this Court fairly and squarely. In my view, the responsible exercise of the special leave discretion required that the issue be addressed now.

To suggest that such a course would, effectively, deprive the applicants of their entitlements to the full procedures laid down by the Act strikes me as unrealistic. Whether they should have received the benefit of the opinion of the Federal Court or not, the respondents are now its beneficiaries. They seek to uphold it. Doubtless they will seek to do so before the Tribunal. They are entitled to do so in any mediation conference. If they insist, the application must be lodged in the Federal Court for decision [83] . Whilst uncertainty may sometimes be an advantage in negotiation and even promote settlement, an important ingredient of uncertainty has been removed in this case by the decision of the Federal Court. As between the present parties, it would be unrealistic to believe that they can be restored to the status quo ante. The applicants negotiate from the standpoint of a determination that their purported claim to native title has been held by an appellate court to be extinguished by law. That may be to place the applicants in an unfairly disadvantageous position for the conduct of their negotiations. Returning the claim to the Tribunal, in the face of the determination of the Federal Court that it is empty and barren in substance, is certainly an injustice to the respondents. The promise of legislation which may deal with procedural provisions of the Act is a further reason for withholding special leave confined to the "procedural question". The "pastoral leases question", on the other hand, is unlikely to be affected by any currently proposed amendments to the Act. Until decided, that question will remain a source of uncertainty in an area of the law where certainty is desirable.

The procedural order leaves the opinion of the Federal Court standing. It is true that another Bench of that Court might reach a different opinion. But it seems likely that, whilst it stands, the majority opinion of the Federal Court in this case will have a significant effect not only on future decisions of that Court but on the negotiations of the present parties and of many others throughout Australia. All will be left in a position of doubt until this Court finally resolves the consequences of pastoral leases for the continuance or extinguishment of native title and the associated constitutional question which the applicants wished to argue. Such points may be good. Or they may be bad. But for the determination of the scope and continuance of native title and the delineation of its limits, as well as of the operation of the Act, it appeared to me essential that the Court shall decide the point.

Lest it be suggested that such a determination would reveal the very limited benefit which Mabo [No 2] actually provided to Australian Aboriginals and Torres Strait Islanders, faced with the multitudinous and extensive grants of pastoral leases in colonial and post-colonial Australia, the proper answer is that, if such be their position in law, it is as well that it be clarified soon. Then only will the bitter disappointments of falsely raised expectations be allayed and the opportunity afforded to parliaments throughout Australia to correct the injustices which Mabo [No 2] called to notice. That further legislative correction would probably be necessary was recognised by the Parliament in the enactment of the Act. The Preamble contained the assertion that the people of Australia intend:

(a) To rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) To ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

In the event that this Court were to hold that pastoral leases, validly granted in colonial and post-colonial times, extinguished in large areas of Australia the native title which would otherwise have survived under the principles stated in Mabo [No 2], it would be for the Parliament, and for State and Territory legislatures, to consider any supplementary enactments which were required to "rectify the consequences of past injustices by special measures". It is unrealistic to expect the courts to rectify all such injustices.

In another statement in the Preamble, the Act asserts: The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts. In land law certainty is a dominant demand of every mature legal system. It is highly undesirable that the entitlements of large numbers of Aboriginal communities and of numerous parties holding competing interests which have followed pastoral leases (or intending or asserting interests over land, the subject of such native title claims) should be left in a state of uncertainty. So far, the question has been approached on a case by case basis [84] . But this is done without the benefit of clear guidance from this Court.

No outstanding factual issue remained to be decided pertinent to the "pastoral lease question" in this case. All of the relevant and voluminous documentation was before this Court. No possible, specific new point was suggested. To the extent that any factual issue remained undetermined, the course adopted in the Federal Court was appropriate, viz that its resolution should be assumed, at this stage certainly, in favour of the applicants. Where important questions arise for the determination of the rights of parties, the balance of convenience will sometimes suggest that this Court should proceed to decide the point [85] . This, in my view, was such a case.

The initially expressed concern of the applicants, later abandoned was, in my view, justified. When the matter is returned to the Tribunal and the claim accepted by the Registrar, it will remain open to the respondents, or any of them, to move the Tribunal for relief based upon s 148 of the Act. In support of such relief they may invoke the decision of the Federal Court on the [lack of] legal basis of the applicants' claims. Section 148 provides: The Tribunal may dismiss an application, at any stage of the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application. This section applies after the claim has been accepted. By its terms, it applies "at any stage of the inquiry". It is not irrelevant that s 109(1) of the Act states that the objectives of the Tribunal's way of operating are to carry out its functions "in a fair, just, economical, informal and prompt way". The last adjective must not be overlooked. Armed with the opinion of the Federal Court on the "pastoral lease question", until reversed, it may be envisaged that the respondents would seek to protect their interests and to rely upon the determination of those interests by the Full Court. Parties cannot be forced into agreement or even into fruitful negotiation. If the respondents insist, sooner rather than later the matter would be returned to the Federal Court where it seems most unlikely that a different result would ensue from a reconsideration of it.

In the consideration of whether an appellate court should grant leave to appeal, or, more particularly, whether this Court should grant special leave to appeal, it is always pertinent to look to the end of the litigation. Where procedural mistakes are shown, it is by no means unusual, accepting those mistakes, to ask whether, in the result, any substantive injustice has been done to the party complaining. If, in the final consideration of a claim, a procedural error has short-cut a proceeding which is otherwise doomed eventually to fail, it is common for the court considering leave or special leave to take into account, in its decision, the ultimate prospects of success [86] . This is because courts are typically concerned with husbanding the provision of relief to deserving cases and with correcting orders rather than the reasoning which sustains those orders. Thus, in the present case if, although the applicants' claims ought to have been accepted by the Registrar, it is revealed, on a proper analysis of those claims, that they are bound to fail (eg because of a fatal legal flaw), whilst a procedural injustice has been done to the applicants, no substantive injustice will have occurred. Moreover, a failure to resolve the uncertainty will undoubtedly delay many genuine cases which are now before the Tribunal, which may shortly be so, or which are not lodged, because of the uncertainty. So far as concerns the interests of other parties to have a proper procedure followed, and the public interest to have that procedure elucidated, remarks by the Court can make plain the procedural error. They can do so without necessarily providing relief.

1. See s 74 of the Act. 2. See Pareroultja v Tickner (1993) 42 FCR 32 at 40. 3. See, eg, Kruger v The Commonwealth (1995) 69 ALJR 885. 4. See, eg, Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 515. "Logically it should follow that the appeal should be dismissed. However, we have heard full argument on the questions upon which the fate of the action depends and have reached the conclusion that the defence raised by the respondent must fail. No fact is in dispute. It has not been suggested that there is any other matter on which argument could usefully be advanced. If the action is sent to trial, the Court will be bound to apply our statement of the law and the appellant must succeed. In these circumstances it would be absurd to give the appellant leave to defend the action."

I cannot agree for a moment with the proposition that the determination by the Court of the "pastoral lease question" would have amounted to the impermissible provision of an advisory opinion, forbidden by the Constitution and the Court's past authority. Nobody suggested during argument that it would be so. In my opinion this is because, manifestly, it would not.

The current rather narrow state of authority on the Court's original jurisdiction to provide advisory opinions may one day require reconsideration as the Court adapts its process to a modern understanding of its constitutional and judicial functions [87] . Since In re Judiciary and Navigation Acts [88] was decided in 1921 there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions. For example, the scope of the availability of the beneficial remedy of a declaration, to deal with an apprehended threat of invasion of rights, has expanded greatly, overcoming in the process some of the same resistance as lay behind the refusal to provide advisory opinions [89] . The judicial function is not frozen in time. This Court should remain alert to developments in judicial procedures which further, in proper ways, the defence of the rule of law. So far as is compatible with the judicial function, courts should endeavour to be constructive and useful to parties in dispute. If courts do not adopt this attitude, those parties will look to other means, rely on their power or be left unrequited by their expensive visits to the courts.

1. See Australia, Commonwealth Parliament, Senate Standing Committee on Constitutional and Legal Affairs, Advisory Opinions by the High Court, Paper No 222 (1977), par 10; Crawshaw, "The High Court of Australia and Advisory Opinions" Australian Law Journal, vol 51 (1977) 112, at pp 125-126; Official Record of Debates of the Australian Constitutional Convention, Perth (1978), pp 28-49, 203-204. Contrast South Australia v Victoria (1911) 12 CLR 667 at 675. 2. (1921) 29 CLR 257. 3. See Crawshaw, "The High Court of Australia and Advisory Opinions" Australian Law Journal, vol 51 (1977) 112, at pp 125-126; Aetna Life Insurance Co v Haworth (1937) 300 US 227; Poe v Ullmann (1961) 367 US 497.

The decision in In re Judiciary and Navigation Acts rested upon the view taken by this Court as to the meaning of "matter" when appearing in ss 75 and 76 of the Constitution, providing for the Court's original jurisdiction. That word was defined to connote "some immediate right, duty or liability to be established by the determination of the Court" [90] . However, the foundation of the Court's appellate jurisdiction, as s 73 of the Constitution makes clear, is that the appeal lies from one or more of the following categories of curial dispositions, viz "all judgments, decrees, orders or sentences", relevantly to this case, of a federal court. As its wide language suggests, that phrase should not be given a narrow meaning. Least of all should it be so treated where the result is said to be to deprive this Court of jurisdiction to dispose of an appeal in a way that is both lawful and just.

1. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.

Whatever else may be in doubt, it cannot be disputed that in the present appeal this Court has jurisdiction. Pursuant to a grant of special leave, the appeal is before it from a "judgment" or "order" of the Full Court of the Federal Court of Australia. Different views may be taken of the convenience of dealing with the "pastoral lease question". But the jurisdiction of the Court to proceed to hear argument on the question, as incidental to its determination of the undoubted "appeal", appears to be clearly established. This is not a case where the "judgment" or "order" under appeal arose out of legislation providing for an advisory opinion. No such legislation exists in this case. To that extent the case is quite different from Saffron v The Queen [91] or Mellifont v Attorney-General (Q) [92] . The Federal Court's determination of the pastoral lease issue was necessary to its view of the proper determination of the legal rights of the parties.

1. (1953) 88 CLR 523 at 528. 2. (1991) 173 CLR 289.

I would resist any attempt to expand the principle against the giving of "advisory opinions" to a new doctrine which would deprive this Court of jurisdiction to deal with issues potentially critical to the rights of the parties properly before it in an appeal. To do so would impose on the Court a rigidity which its past practice and authority negate. Take for example the principle explained in Stead v State Government Insurance Commission [93] . A holding of a breach of the rules of procedural fairness may not entitle an aggrieved party to relief. The breach may not have occasioned any ultimate injustice. If that is so "it would be futile to order a new trial" [94] . There are many similar cases, before and since [95] .

1. (1986) 161 CLR 141. 2. Stead (1986) 161 CLR 141 at 145. 3. For a vivid illustration, see, eg, Ex parte Corbishley; Re Locke (1967) 67 SR (NSW) 396.

Far from giving comfort to any suggested expansion of the ambit of prohibited "advisory opinions", the holding in Mellifont returned the Court to the broad language of s 73 of the Constitution. So long as the "appeal" involves the hearing and determination of an appeal from a judgment decree order or sentence of a designated court, jurisdiction attaches. It may be inferred that, in the context of this Court's place in the Australian judicial hierarchy, the framers of the Constitution considered that it was enough that the designated court appealed from had made a dispository decision of the specified kind. To entertain an appeal from such a court and such a disposition is guarantee enough that the High Court is not being burdened with "functions not ancillary or incidental to the exercise of the judicial power of the Commonwealth" or "foreign to that exercise" [96] .

1. See Mellifont (1991) 173 CLR 289 at 300; cf Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476f; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475, 512, 514; Fencott v Muller (1983) 152 CLR 570 at 603, 609.

The present case illustrates that any narrower view would produce extremely inconvenient consequences for the reasoning of the Court in deciding appeals. The pastoral lease issue is not a question divorced from the administration of the law in relation to an actual matter. It is far from an abstract legal question separate from the determination of the rights of the parties. On the contrary, if the arguments of the respondents before this Court and the opinion of the Federal Court are correct, the issue is the essential question in contest between the parties.

I understand the argument that disposal of the appeal on the wider ground offered by the respondents deprives the applicants of the benefit of procedural rights of economic value to which they are entitled. I am sympathetic to those rights. I certainly have no desire to add to the long history of injustices to the Aboriginal people. But neither, in a court of justice, do I wish to be an instrument of potential injustice to the respondents. They are entitled to look to this Court to resolve the parties' legal dispute and, if proved, to uphold their legal rights. In other circumstances I would uphold and defend the procedural rights of the applicants. But in the events which have occurred in this litigation, it remains to be seen whether the applicants' asserted rights are valuable (as the majority of the Court holds or is willing to assume) or whether they are legally without value (as the respondents assert and the Full Court of the Federal Court has held). To determine which view was right, and to avoid the risk of a barren exercise of litigation which merely postpones the resolution of the question, I would have addressed that issue. I would have done so not to provide an advisory opinion to the parties and the interveners. But to determine the essential legal controversy that is at the heart of their contest about their respective rights and obligations.

It is for these reasons that my own preference was to order that this Court should proceed to hear argument on the "pastoral lease question" and the associated constitutional question concerning the suggested limitation on the power of the colony and State of Queensland. Twenty advocates appeared before the Court able to argue the point. All of them, save ultimately the applicants, asked that it be determined. The interveners, representing the Commonwealth, four States and the Northern Territory asked the Court to proceed. The written submissions of the parties, reflecting the original grounds of appeal, dealt with the point. No one contested its national importance. No procedural or jurisdictional impediment stood in the way. One day, certainly, the point will have to be resolved. I was quite unconvinced that the cup should pass.

My view did not prevail. The Court confined its consideration to the "procedural point". Upon that point I agree with the majority of the Court. With the reservation which I have expressed, I therefore agreed in the orders of the Court announced by Brennan CJ.